{"id":"alj-G501118-2024-07-03","awcc_number":"G501118","decision_date":"2024-07-03","opinion_type":"alj","claimant_name":"Lettie Curtis","employer_name":null,"title":"CURTIS VS. DILLARDS, INC.AWCC# G501118July 3, 2024","outcome":"denied","outcome_keywords":["dismissed:1","granted:1","denied:2"],"injury_keywords":["shoulder","back","fracture","ankle"],"pdf_url":"https://www.labor.arkansas.gov/wp-content/uploads/CURTIS_LETTIE_I_G501118_20240703.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"CURTIS_LETTIE_I_G501118_20240703.pdf","text_length":23977,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nAWCC FILE No G501118 \n \nLETTIE I. CURTIS, EMPLOYEE        CLAIMANT \n \nDILLARDS, INC., EMPLOYER                RESPONDENT \n    \nSAFETY NATIONAL CASUALTY CORP./ \nGALLAGHER BASSETT SERVICES, INC., CARRIER/TPA       RESPONDENT \n \n \nOPINION FILED 3 JULY 2024 \n \n \nHeard before Arkansas Workers’ Compensation Commission (AWCC) Administrative Law \nJudge JayO. Howe on 3 April 2024 in Little Rock, Arkansas. \n \nThe claimant appeared pro se. \n \nMr. Rick Behring, of Newkirk & Jones Law Firm, appeared for the respondents. \n \nI.  STATEMENT OF THE CASE \n \nThe above-captioned case was heard on 3 April 2024 in Little Rock, Arkansas, after \nthe parties participated in a pre-hearing telephone conference on 30 January 2023. A \nPrehearing Order, admitted to the record without objection as Commission’s Exhibit No 1, \nwas entered on the same day as the conference. The Order stated that the ISSUE TO BE \nLITIGATED was whether the claimant was entitled to additional benefits for her accepted \nfoot injury of 13 February 2015. Namely, she sought temporary total disability (TTD) \nbenefits for three different time periods:\n1\n from April to October in 2023; from 20 November \n2023 to 31 January 2024; and from 31 January 2024 to a date yet to be determined. \nThe parties’ CONTENTIONS, as set forth in their Prehearing Questionnaire \nResponses, were incorporated into the Prehearing Order.  \n \n1\n See TR at 14 to 15 for the claimant’s clarification on the timeframes during which she \nseeks TTD benefits. \n\nCURTIS- G501118 \n2 \n \nPer the claimants CONTENTIONS, she is entitled to time loss reimbursement for a lack \nof reasonable accommodations at different times during her employment. She contends that \nshe should be reimbursed via an award of TTD benefits for those times. \nPer the respondents’ CONTENTIONS, the claimant has been paid all benefits to \nwhich she is entitled. Her claim was accepted as compensable, and whether they provided \nreasonable and necessary medical treatment is not at issue. Permanent partial disability \n(PPD) benefits and TTD benefits have been paid. Specific to her contention that she is \nentitled to additional TTD benefits, they further contend that the claimant was released at \nmaximum medical improvement (MMI) on 20 January 2016. She was, thereafter, offered \nwork within her permanent work restrictions. They contend that even if she was within a \nhealing period during the time she seeks benefits, they are not liable for the same under \nACA § 11-9-526. Finally, the respondents reserve the right to seek a credit or offset for any \nbenefits sought by the claimant in an Equal Employment Opportunity Commission \n(EEOC). \nThat Order also set forth the following STIPULATIONS: \n1.  The AWCC has jurisdiction over this claim. \n2.  An employee/employer/carrier relationship existed on or about 13 February 2015 \nwhen the claimant sustained injuries to her right shoulder and right foot as the result of \na specific incident. \n \n3.  The respondents accepted the claim as compensable and began paying benefits \nassociated with her accepted injuries. \n \n4.  The respondents accepted and paid permanent anatomical impairment ratings \nassigned to the claimant’s right shoulder at seven percent (7%) of the body as a whole \nand the right foot at seventy-four percent (74%). \n \n5.  The claimant earned an average weekly wage of $524.17, entitling her to a TTD rate \nof $350 and a PPD rate of $263. \n \n\nCURTIS- G501118 \n3 \n \n6.  The claimant continued her employment with the respondent up to the date of her 31 \nJanuary 2024 resignation.\n2\n \n \nThe following WITNESSES testified at the hearing: \nThe claimant testified on her own behalf and called Ms. Rachel Angelica Curtis; while \nthe respondents called Mr. Marty Martin. \n \nThe EVIDENCE presented consisted of the testimony along with Commission’s \nExhibit No 1 (the 5 December 2023 Prehearing Order), Claimant’s Exhibit Nos 1 (38 pages of \nmedical and non-medical records), 2 (one page form for work restrictions), 3 (six pages of \nmedical records), 4 (seven pages of medical records), 5 (one page of printed photos), 6 (six \npages of medical records), and 7 (ten pages of FMLA forms); and Respondents’ Exhibit Nos 1 \n( one index page and a subsequent thirty-two pages of medical records) and 2 (one index \npage and a subsequent twenty pages of non-medical records).  \nPost-hearing briefs were submitted by both parties and have been blue-backed to \nthis Opinion. \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \nHaving reviewed the record as a whole and having heard testimony from the \nwitnesses, observing their demeanor, I make the following findings of fact and conclusions \nof law under ACA § 11-9-704: \n1. The AWCC has jurisdiction over this claim. \n \n2. The previously noted stipulations are accepted as fact. \n \n3. The claimant failed to prove by a preponderance of the evidence that she is entitled \nto any additional TTD benefits. \n \nIII.  HEARING TESTIMONY & MEDICAL EVIDENCE \nClaimant Lettie Curtis \n \n2\n See TR at 13 to 14. \n\nCURTIS- G501118 \n4 \n \nThe claimant began working for Dillard’s in 2012 as a picker in their fulfillment \ncenter for online orders. She suffered a workplace injury on 13 February 2015 when she \naccidentally stepped from an elevated cherry picker platform and briefly caught herself \nbefore dropping down to the floor. As a result of that fall, the claimant suffered injuries to \nher right foot and right shoulder, and the respondents provided medical treatment \naccordingly. Her claims in this litigation are only related to the compensable injury to her \nfoot. \nAfter undergoing surgery and other treatments, the claimant was returned to work \nwith restrictions on 18 June 2015; and “from 2015 to 2022, everything was fine.” [TR at 47.] \nDr. Ruth Thomas placed the claimant at MMI related to her foot injury on 20 January \n2016, with permanent light duty restrictions and a permanent impairment rating. [Resp. \nEx. No 1.] The claimant testified that after her return to work, she was given a permanent \njob in the returns department, and that, “our department sometimes run out of work or the \ntruck don’t bring much, and it don’t show up. When that happens, we’re sent out to other \ndepartments to do work, so we won’t have to go home and [can] still get paid.” [TR at 47.] \nAfter her regular work was completed, she would often put together boxes or clean up. \nThe claimant testified that at some point she was assigned to do “recon” after her \nprimary work assignments were completed. She described recon as inventory work, \nscanning barcodes on merchandise. She testified that she did not have a problem using a \nrolling chair to scoot along and scan the merchandise, but eventually had some trouble with \nproduction after a quota of scans per hour was raised. The claimant discussed this with Dr. \nRobert Martin, who wrote a letter stating, among other things, that she remained at MMI, \nthat her work should be “mostly sedentary duty,” and that he recommended her scan quota \nto be no more than “150 per hour when sent to an alternate area.” [Cl. Ex. No 4.] \n\nCURTIS- G501118 \n5 \n \nIn August of 2023, the claimant developed an open wound on her foot that she \ndescribed as making the recon work more difficult. She said that if she could not make \nboxes or do cleaning for alternate work, she would go home instead. [TR at 83.] The \nclaimant stated that after 20 November 2023, she started calling in sick rather than going \ninto work and possibly being assigned to recon if she finished her primary work. [TR at 94.] \nShe said that she was given the option to change shifts to a time with more primary work, \nbut that she was not being helped by an advocate, so “[she] was just going to sit at home. \nAnd so – and just let [her] foot heal.” [TR at 95.] She also testified that she was offered a \nwheelchair to use at work, but said that she could not roll it on her own and that she would \nneed an electric wheelchair instead. [TR at 96.] She acknowledged, however, that no \nphysician had ordered a wheelchair and that, instead, it was offered to her by Marty \nMartin, one of her managers. [TR at 98.] \nAfter the claimant began missing more work towards the end of 2023, she had her \nprimary care physician Dr. Brian Mason fill out some paperwork to support a change from \nintermittent Family Medical Leave Act (FMLA) leave to continuous FMLA leave. [TR at \n101.] She explained that she is seeking TTD between 20 November 2023 and 31 January \n2024 because of the dates provided by Dr. Mason on those forms. [Cl. Ex. No 7.] The \nclaimant stated that she saw her supervisor Marty Martin when she was turning in her \nFMLA papers on 21 December 2023 and that he asked when she planned to return to work. \nShe responded that she would be back on January 31\nst\n. [TR at 104.]  \nAt some point after submitting her FMLA papers, the claimant ran into some \ncoworkers out at lunch and spoke with one of them on the phone afterwards. [TR at 104-\n105.] After that encounter, she “decided that I’m – I’m not going to return to Dillard’s, \nbecause of a hostile work environment.” [TR at 106.] \n\nCURTIS- G501118 \n6 \n \nOn cross examination, the claimant acknowledged that the respondents continued to \npay for her medical treatment after she returned to work in 2015. [TR at 114.] She also \nacknowledged that the respondents paid for the permanent impairment ratings for her \nshoulder and foot injuries and that she received no permanent restrictions associated with \nher shoulder injury. [TR at 116 to 117.] The claimant agreed that her job working in \nreturns for Dillard’s was within her restrictions and that she was offered a change in her \nshift time. [TR at 119 to 120.] When her work handling returns was complete, she felt like \nputting together boxes or putting labels on boxes was within her restrictions. \nThe claimant confirmed that, at least by November of 2023, she knew that she would \nnot be responsible for any scanning quotas when working recon after her return work was \ncompleted. She also confirmed that she was allowed to use a rolling chair and stool in the \nrecon area and that she liked being able to do cleaning work from her chair and stool. [TR \nat 122.] \nDiscussing the wound that she developed in August of 2023, the claimant stated that \nshe was diagnosed with a bacterial infection and did not know whether it happened at \nwork. [TR at 127 to 128.] The claimant acknowledged that Dr. Mason completed her FMLA \npapers because of the wound on her foot. \nQ:  This was a period of time where you were having even an extra bit of \ntrouble, because of the wound you were having on your foot, is that correct? \nA:  Yes. Yes. \nQ:  And that’s what you told Dr. Mason, is that correct? \nA:  Yeah, yes. \nQ:  At least that’s what is reflected in the reports, is that correct? \nA:  Yes. \nQ:  And that’s the reason that you had gotten the FMLA reports from Dr. \nMason. It was this wound that you had on your foot, is that correct? \nA:  Yes. \nQ:  All right. Thank you. And you had mentioned something and I just want \nto show you Respondents’ Exhibit 1 at page 29 is from November of 2023, and \nat least according to his report, Dr. Martin says the wound is completely \nhealed? \nA:  Yes. I explained in my – \n\nCURTIS- G501118 \n7 \n \nQ:  Okay. \n \n[TR at 132.] \n The claimant took issue with the medical records stating that she was at MMI and \nhad not reentered a healing period since she was placed at MMI. “They put me at maximum \nmedical improvement, because I – I didn’t want to do surgery at the time.” But she \nacknowledged that while some surgical intervention(s) might have remained an option for \nher foot, she remained at MMI and outside of a healing period until such a time as she \nchose to pursue a surgical course. [TR at 138 to 139.] She pointed to Dr. Thomas’ statement \nthat, “If she elects a change in medical or surgical management, this MMI would likely \nchange.” as support for her opinion that her care was ongoing. [TR at 141.] “I’ve been going \nto the doctor for the past nine years, because I need orthotic inserts every single year; so \nthat’s why I didn’t want to close—close my claim, because I need them to pay for it.” [TR at \n142.] \nClaimant’s Witness Ms. Rachel Curtis \n The witness began her testimony be acknowledging that she was the claimant’s \ndaughter, but also that she worked at the respondent-employer’s fulfillment center between \n2017 and 2021. [TR at 146.] She also worked in the returns department and testified that \nthe department had box preparation machines that could not always “keep up” with the \nworkflow of boxes. The witness further testified that returns department employees could \nbe sent into other areas when their assigned work was complete. She did not see the \nclaimant working in recon after her shift work. [TR at 147 to 149.] She further testified that \nshe witnessed the claimant in pain at times following her workplace accident and that at \ntimes the claimant had trouble with her mobility.  \nOn a brief cross examination, the witness acknowledged that she had no personal \nknowledge about the workplace after leaving the respondent’s employ in 2021. [TR at 156.] \n\nCURTIS- G501118 \n8 \n \nRespondents’ Witness Mr. Marty Martin \n Mr. Martin testified that he had worked for Dillard’s for thirty-two years and that \nhe was the general manager of the fulfillment center where the claimant had worked \nduring the entire course of her employment. [TR at 158.] He stated that after the claimant’s \nreturn to work, the respondents made accommodations to comply with her restrictions, \nincluding providing a desk, rolling chair, and a stool to help elevate her foot. [TR at 159.] \nMr. Martin explained that when the claimant first complained about working in recon after \nher primary job duties, she was offered a change in her shift time to better align her \nworking hours with the times that the returns usually arrived. She refused the shift \nreassignment. \n Regarding the boxes the claimant preferred to work with, the witness testified that \nin 2021 the facility installed more box machines and streamlined the manual work input for \nbox sizes that did not work with the machines. He agreed with Rachel Curtis’ testimony \nthat there were times prior to 2021 that the older machines had trouble managing the \nnumber of boxes needing to be processed. But he stated that since the machinery changes \nand additions in 2021, that was no longer accurate. [TR at 161.]  \n Mr. Martin testified that the claimant’s restrictions were accommodated both in her \nprimary job duties and when she was occasioned to work in recon, stating that recon is not \nordinarily a sit-down job, but that she was allowed to work from her chair. He further \nexplained that when the claimant complained about the scanning quotas changing in recon, \nhe had a discussion with her and advised that she would not be held to the higher \nproduction standards. [TR at 163.] He confirmed that when work loads were low, employees \ncould go home without penalty or use vacation time.  \n Had the claimant not voluntarily resigned from her position, her job would still be \navailable to her and her accommodations would still be in place, he said. [TR at 164.] Mr. \n\nCURTIS- G501118 \n9 \n \nMartin also said that he ordered a wheelchair with an attachment to elevate her leg, \nwithout the claimant requesting it, simply because he thought that it might be helpful to \nher. [TR at 165.] He testified that the clerical positions in the facility were not “just a desk \njob” and that those jobs would also require accommodation for someone with the claimant’s \nrestrictions. [TR at 167.]  \nMedical Records \n On 20 January 2016, Dr. Ruth Thomas found the following: \nBased on examination and interview today Mrs. Curtis has reached \nMaximum Medical Improvement in reference to her right calcaneus fracture. \nIf she elects a change in medical or surgical management this MMI would \nlikely change. \n \n[Resp. Ex. No 1 at 3.] \n \n On 30 March 2023, the claimant saw Dr. Martin for a follow-up appointment, and he \nnoted that her status remained unchanged and that she still did not have any interest in \nsurgical intervention. [Resp. Ex. No 1 at 11.]  \n A 21 April 2023 note reflects her report of trouble with quotas at work and suggests \nlimiting her quota to 150 per hour. It also stated that she remained at maximum medical \nimprovement. [Resp. Ex. No 1 at 19.] \n She saw Dr. Martin again on 17 August 2023 for a wound on her ankle. She denied \nany recent injury or causal event. He made no changes to her work restrictions because of \nthe wound. [Resp. Ex. No 1 at 20, 23.] \n Dr. Martin checked the wound again on 24 August 2023 and made no change to her \nwork restrictions. [Resp. Ex. No 1 at 26.] \n A follow-up in October noted significant healing, made no change to her work status, \nand set her for another appointment in one month. [Resp. Ex. No 1 at 28.] \n\nCURTIS- G501118 \n10 \n \n The claimant saw Dr. Martin again on 9 November 2023, when he noted the “recent \nwound now resolved.” He also stated that her “permanent work restrictions remain \nunchanged....” [Resp. Ex. No 1 at 29.] \n On 7 March 2024, the claimant saw Dr. Martin again, and he, again, found that “she \nremains at maximum medical improvement” and stated no change to her permanent \nimpairment rating or work restrictions. [Resp. Ex. No 1 at 32.] \n \nIV.  ADJUDICATION \nThe stipulated facts are outlined above and accepted as fact. It is settled that the \nCommission, with the benefit of being in the presence of the witnesses and observing their \ndemeanor, determines a witness’ credibility and the appropriate weight to accord their \nstatements. See Wal-Mart Stores, Inc. v. VanWagner, 337 Ark. 443, 448, 990 S.W.2d 522 \n(1999).   \nA.   THE CLAIMANT FAILED TO PROVE BY A PREPONDERANCE OF THE \nEVIDENCE THAT SHE IS ENTITLED TO ANY ADDITIONAL TTD BENEFITS. \n \nThe claimant suffered a workplace accident in February of 2015 and sustained \ncompensable injuries that were accepted by the respondents, who began paying benefits \naccordingly. She was provided treatment for her injuries and eventually returned to work \nwith restrictions in June of 2015. At issue in this litigation is whether the claimant is \nentitled to additional TTD benefits associated with her foot injury, which is a scheduled \ninjury. See ACA § 11-9-521(a)(11). She received a permanent disability rating for her foot \ninjury in 2016, which was paid, and she was placed at MMI with permanent restrictions at \nthe same time. By her own testimony, she worked with appropriate accommodations and \nwithout issue through 2023. She has failed to provide a preponderance of evidence to \nsupport her claim that she is entitled to any additional TTD benefits since her placement at \nMMI in 2016. \n\nCURTIS- G501118 \n11 \n \n For a scheduled injury, a claimant is entitled to TTD benefits during her healing \nperiod or until she returns to work, whichever happens first. Wheeler Constr. Co. v. \nArmstrong, 73 Ark. App. 146, 41 S.W.3d 822 (2001). The healing period is that period for \nhealing of the injury which continues until the employee is as far restored as the \npermanent character of the injury will permit. Nix v. Wilson World Hotel, 46 Ark. App. 303, \n879 S.W.2d 457 (1994). If the underlying condition causing the disability has become stable \nand if nothing by way of treatment will improve the condition, the healing period has \nended. Id. Whether an employee’s healing period has ended is a factual determination for \nthe Commission. Ketcher Roofing Co. v. Johnson, 50 Ark. App. 63, 901 S.W.2d 25 (1995).  \nA claimant must prove her entitlement to TTD benefits by a preponderance of the \nevidence. Ark. Code Ann. § 11-9-705(a)(3). Preponderance of the evidence means the \nevidence having greater weight or convincing force. Metropolitan Nat’l Bank v. La Sher Oil \nCo., 81 Ark. App. 269, 101 S.W.3d 252 (2003). \nHere, the claimant argues that she is entitled to TTD benefits for three separate, \nthough consecutive, periods. She fails to prove by a preponderance of the evidence that she \nis entitled to TTD benefits for any of those periods of time.  \nAs a threshold matter, I find that the healing period for her scheduled foot injury \nended on 20 January 2016, when she was placed at MMI by Dr. Thomas. The Commission \nmay accept or reject a medical opinion and determine its probative value. Poulan Weed \nEater v. Marshall, 79 Ark. App. 129, 84 S.W.3d 878 (2002). I accept Dr. Thomas’ opinion as \naccurate, and by the claimant’s own testimony, she experienced no problems at work for \nyears afterwards. \nThe claimant seems to urge that her healing period never ended because Dr. \nThomas left open the possibility that, at some point, she could elect for a surgical \n\nCURTIS- G501118 \n12 \n \nintervention for her, otherwise, already stable foot injury. She argued the same at the close \nof her hearing, stating, “I have continuously, consecutively for the past nine years received \ntreatment for my workers’ comp claim injury and is still under physician’s care.” [TR at \n178.] While such an election, as noted by Dr. Thomas, may have resulted in the claimant \nreentering a healing period post-surgically, absent some surgical intervention, she \nremained at MMI and outside of a healing period. Indeed, the medical records from Dr. \nMartin make clear that she remained at MMI in March and April of 2023 and in March of \n2024. [Resp. Ex. No 1 at 14, 19, and 32.] She cannot not prevail on her claim simply because \nthe respondents continued to provide some medical benefits in the years after her \nplacement at MMI. A claimant may be entitled to ongoing management treatment, such as \nin this claim, after the healing period has ended. S. Tire Mart v. Perez, 2022 Ark. App. 179, \n644 S.W.3d 439 (2022). \nThe claimant attempts to argue that the wound she experienced on her foot caused \nher to be unable to work; and that wound appears to be the basis for her claim for benefits \nbetween November 2023 and January of 2024. She submitted her FMLA papers from her \nPCP in support of that notion. [Cl. Ex. No 7.] I find those forms to be of very limited \nevidentiary weight. See Poulan, supra. The forms are provided with no supporting records \nor clinic notes. Also, they are clearly inconsistent in that they reference Dr. Martin’s 9 \nNovember 2023 appointment while claiming continuous impairment from 20 November \n2023 to 31 January 2024. Dr. Martin’s November note, however, states, “the area of \nprevious wound formation has completely resolved, healed. There is no drainage, no open \nwound today.” And it goes on to state, “Her permanent work restrictions remain \nunchanged, sedentary duty only, she will follow-up with me as needed.” [Resp. Ex. No 1 at \n29.] I find Dr. Marten’s opinion and notes to be more credible and supportive of the notion \nthat her work status was unchanged by the wound. See Poulan, supra. The claimant did \n\nCURTIS- G501118 \n13 \n \nnot argue that the wound was a compensable consequence, and she acknowledged that she \ndid not know the source or cause of the wound. Even if she did, the evidence would not \nsupport such a finding. \nAs for her claim for TTD benefits from 31 January 2024 to a date yet to be \ndetermined, the claimant’s voluntary resignation from employment is not evidence of her \ninability to work. She even testified that she intended to return at the end of January until \nan encounter outside of work with some coworkers.  \nIn sum, the claimant failed to prove by a preponderance of the evidence that she \nentered a new healing period at any time after her the healing period for her foot injury \nended in early 2016. Her claim for additional TTD benefits fails accordingly. \nV.  ORDER \n     Consistent with the Findings of Fact and Conclusions of Law stated above, this claim is \ndenied and dismissed.  \nSO ORDERED. \n \n________________________________ \n       JAYO. HOWE \n       ADMINISTRATIVE LAW JUDGE","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION AWCC FILE No G501118 LETTIE I. CURTIS, EMPLOYEE CLAIMANT DILLARDS, INC., EMPLOYER RESPONDENT SAFETY NATIONAL CASUALTY CORP./ GALLAGHER BASSETT SERVICES, INC., CARRIER/TPA RESPONDENT OPINION FILED 3 JULY 2024 Heard before Arkansas Workers’ Compensation Commission (AWC...","fetched_at":"2026-05-19T22:50:51.050Z","links":{"html":"/opinions/alj-G501118-2024-07-03","pdf":"https://www.labor.arkansas.gov/wp-content/uploads/CURTIS_LETTIE_I_G501118_20240703.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}