{"id":"alj-G804863-2024-03-01","awcc_number":"G804863","decision_date":"2024-03-01","opinion_type":"alj","claimant_name":"Crystal Gainey","employer_name":"Genoa Central School District","title":"GAINEY VS. GENOA CENTRAL SCHOOL DISTRICT AWCC# G804863 MARCH 1, 2024","outcome":"dismissed","outcome_keywords":["dismissed:1","denied:1"],"injury_keywords":["back","repetitive","shoulder","lumbar","knee","hip"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/GAINEY_CRYSTAL_G804863_20240301.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"GAINEY_CRYSTAL_G804863_20240301.pdf","text_length":51785,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nCLAIM NO.: G804863 \n \nCRYSTAL GAINEY, EMPLOYEE                                                                        CLAIMANT     \n \nGENOA CENTRAL SCHOOL DISTRICT, \nEMPLOYER                                                                                             RESPONDENT NO.  1              \n \nARKANSAS SCHOOL BOARDS ASSOCIATION, WCT, \nTHIRD PARTY ADMINISTRATOR/TPA                                           RESPONDENT NO.  1 \nDEATH AND PERMANENT TOTAL DISABILITY \nTRUST FUND                                                                                          RESPONDENT NO.  2                                                                        \n \nOPINION FILED MARCH 1, 2024 \n  \nHearing before ADMINISTRATIVE LAW JUDGE CHANDRA L. BLACK in Texarkana, Miller \nCounty, Arkansas. \n \nClaimant represented by the Honorable Gary Davis, Attorney at Law, Little Rock, Arkansas. \n \nRespondents No. 1 represented by the Honorable Guy Alton Wade, Attorney at Law, Little Rock, \nArkansas. \n \nRespondent  No.  2  represented  by  the  Honorable  Christy  King,  Attorney  at  Law,  Little  Rock, \nArkansas.  Ms. King waived her appearance at the hearing.  \n   \nStatement of the Case \nOn  October  10,  2023,  the  above-captioned  claim  came  on  for  a  hearing  in  Texarkana, \nArkansas.    A  prehearing  telephone  conference  was  conducted  on  July  27,  2023,  from  which  a \nprehearing order was filed that same day.  A copy of the order and the parties’ responsive filings \nhave been marked as Commission’s Exhibit 1 and made a part of the record without objection. \nStipulations \nDuring the prehearing telephone conference, and/or at the hearing, the parties agreed to the \nfollowing stipulations: \n\nGainey – G804863 \n2 \n \n1. The Arkansas Workers’ Compensation Commission has jurisdiction of the within  \n \nclaim. \n2. That the employee-employer-insurance carrier relationship existed at all relevant  \ntimes, including on July 16, 2018, when the Claimant sustained an admittedly compensable injury \nto her lower back. \n3. The Claimant’s average weekly wage on July 16 was $319.50, which entitles her to  \nweekly compensation rates of $213.00 and $160.00. \n4. On September 20, 2021, the Claimant reached maximum medical improvement/MMI  \nfor her compensable back injury.  Of note, although the parties did not made it a stipulation, per \nRespondents No.1’s prehearing filing, they have accepted and paid the Claimant a 25% impairment \nrating for her back injury of July 2018.   \n5. Respondents No. 1 have controverted this claim for additional benefits.  \n6. All issues not litigated here are reserved under the Arkansas Workers’ Compensation  \nAct. \nIssues \n The parties agreed to litigate limit the issues as follows: \n1. Whether the Claimant has been rendered permanently and totally disabled due to her  \ncompensable back injury of July 16, 2018, or in the alternative, whether the Claimant is entitled \nto wage loss disability benefits. \n2. Whether the Claimant’s attorney is entitled to a controverted attorney’s fee.  \nContentions \nThe parties’ respective contentions are listed below: \n\nGainey – G804863 \n3 \n \nClaimant: \nThe Claimant contends that admittedly compensable injuries were sustained on July.    \n16, 2018 to her low back.  She received an impairment of 25% to the body as a whole.  The \nClaimant  contends  entitlement  to  a  wage  loss  determination.    All  benefits  above  the \nimpairment are controverted for purposes of attorney’s fees. \n Claimant reserves the right to pursue other benefits to which Claimant may become \nentitled to in the future. \n Claimant’s attorney respectfully requests that any attorney’s fees owed  by  the \nClaimant on controverted benefits paid by award or otherwise be deducted from Claimant’s \nbenefits  and  paid  directly  to  Claimant’s  attorney  by  separate  check,  and  that  any \nCommission Order direct the Respondents to make payment of attorney’s fees in this \nmanner.         \nRespondents No. 1:  \nRespondents contend that Claimant is not entitled to wage loss, over and above permanent \npartial disability (PPD) rating. \nRespondent No. 2: \nThe  Death  and  Permanent  Total  Disability  Trust  Fund  defers  to  the  outcome  of \nlitigation on the following issues: \n1) Whether the Claimant has been rendered permanently and totally disabled due to her \ncompensable  back  injury,  or  in  the  alternative,  whether  the  Claimant  is  entitled  to  wage  loss \ndisability benefits. \n2) Whether the Claimant’s attorney is entitled to a controverted attorney’s fee.  \n           \n\nGainey – G804863 \n4 \n \n                     FINDINGS OF FACT AND CONCLUSIONS OF LAW \nBased on my review of the record as a whole, to include the aforementioned documentary \nevidence, other matters properly before the Commission, and after having had an opportunity to \nhear  the  testimony  of  the  witnesses  and  observe  their  demeanor,  I  hereby  make  the  following \nfindings  of  fact  and  conclusions  of  law  in  accordance  with  Ark.  Code  Ann.  §11-9-704  (Repl. \n2012): \n1.   The Arkansas Workers’ Compensation Commission has authority over this claim.    \n          \n      2.    I hereby accept the above-mentioned proposed stipulations as fact. \n3.  The Claimant has failed to prove by a preponderance of the evidence that she was rendered \npermanently and totally disabled by her compensable back injury of July 16, 2018.  \n      4.    The  preponderance  of  credible  evidence  does  not  prove  that  the  Claimant  sustained  any \nwage loss disability over and beyond her 25% anatomical impairment, which Respondents No. 1 \naccepted and paid for her compensable back injury. \n 5.   The issue of a controverted attorney’s fee has been rendered moot and not discussed  \nherein this opinion. \nSummary of Evidence \nAt the hearing, Mattie Dianne Watkins (a friend and former employer), the Claimant, and \nher husband, Boyce Thomas Gainey, Jr., testified on behalf of the Claimant.  \nRespondents No. 1 called Debbie Huff, Superintendent of Genoa Central School District, \nand Ci Ci Burns, the Custodial Supervisor for the school district, as their witnesses.  \n            The record consists of the October 10, 2023 hearing transcript, comprising of the following \nexhibits:  Specifically, Commission’s Exhibit 1 includes the Commission’s Prehearing Order of \nJuly 12, 2023 and the parties’ responsive filings; Claimant’s Exhibit 1, which includes a  \n\nGainey – G804863 \n5 \n \nClaimant’s Documentary Evidence Exhibit which consists of medical records of forty-seven (47) \nnumbered  pages;   Claimant’s Exhibit 2  is  a  one-page  medical  report,  which  was  authored  by \nAmelia A. Ray, APRN, CNP on November 19, 2019; Respondents’ Exhibit 1 entails Respondents’ \nMedical Hearing Exhibit consisting of sixteen (16) numbered pages and Respondents’ Exhibit 2 \ncomprising  twenty-one  (21) numbered pages is a Respondents’ Non-medical  Hearing  Exhibit.  \nThese exhibits were admitted into evidence with no objection. \n                                                         Testimony \nMattie Dianne Watkins \n Ms.  Watkins  works  as  a  radiology  clerk.    According  to  Ms.  Watkins,  she  became \nacquainted with the Claimant through their church.  They developed a close friendship and began \nspending a lot of time together.  Ms. Watkins has known the Claimant for more than three decades.   \nShe  testified  that  she  hired  the  Claimant  to  do  work  for  her  in  her  home  after  the  death  of  her \nhusband.    The  Claimant worked  for  Ms.  Watkins  for  ten  years.    Ms.  Watkins  and  the  Claimant \nhave also taken trips together and spent a lot of leisure time together.  Per Ms. Watkins, all these \nactivities took place before the Claimant’s work-related back injury. \n The Claimant performed general household cleaning for Ms. Watkins.  According to Ms. \nWatkins, the Claimant cleaned and scrubbed every “nick and cranny,” of her home.  The Claimant \nalso helped Ms. Watkins to decorate for the holidays.  Specifically, the Claimant     helped Ms. \nWatkins to  bring  in  the  totes  of  decorations,  climb  ladders,  put  decorations  away,  and  about \nwhatever needed to be done at the time. \n However, since the Claimant’s injury, Ms. Watkins essentially testified that the Claimant \nhas not been able to travel or help her with any home cleaning because she is unable to physically \nhold  up  to  do  the  work.    Ms.  Watkins  confirmed  that  she  has  observed  the  Claimant  since  her \n\nGainey – G804863 \n6 \n \ninjury.  According to Ms. Watkins, the Claimant is feeble.  Based on Ms. Watkins dealings with \nthe  Claimant,  she  testified  that  she  found  the  Claimant  to  be  an  honest  and  straightforward \nindividual.    She  also  testified  that  she  found  the  Claimant  to  be  an  extremely  hardworking \nindividual; and prior to her injury, she was extraordinarily strong and robust and could do what \nneeded  to  be  done.      However,  Ms.  Watkins  denied  that  the  Claimant  was  able  to  physically \ncontinue working at her home after her work-related injury.  \n On cross-examination, Ms. Watkins confirmed that she has  never worked for the school \ndistrict.  Nor did  Ms.  Watkins ever have  any involvement with Annett Bassett or  Debbie Huss.  \nHowever, is familiar with Ms. Burns.  She confirmed that she also found Ms. Burns to be a truthful \nperson.  They attend the same church.   \n Ms. Watkins confirmed that she was not involved with the job opportunities, restrictions, \nor limitations, and the work provided to the Claimant by the school district after her injury.  She \nconfirmed that the Claimant worked for the school district a significant period of time after her \ninjury.  Ms. Watkins confirmed that the Claimant worked for the district until February of 2020, \nwhich would have been a year and a half after her injury.   \nShe verified that the Claimant is able to drive, and that she drove herself to Little Rock for \nher deposition.  Ms. Watkins also verified that the Claimant is able to take care of her own personal \nneeds.  She confirmed that she was aware that the school district collaborated with the Claimant \nto modify her job after her injury.                               \nUnder  further  questioning,  Ms.  Watkins  admitted  that she  was  aware  the  Claimant’s \nhusband had undergone surgery due to a heart condition.  She also was aware that the Claimant \nresigned  her  position  shortly  before  his  surgery.    Ms.  Watkins  confirmed  that  based  on  her \n\nGainey – G804863 \n7 \n \nconversations with the Claimant, she was resigning so that she would be able to take care of her \nhusband.   \nBoyce Thomas Gainey, Jr.     \n Mr. Gainey is the Claimant’s husband of forty-five years.  He confirmed that the Claimant \nperformed  physical  labor  prior  to  her  injury.    He  confirmed  that  over  the  years,  he  has  had  the \nopportunity to observe his wife’s work ethic.  According to Mr. Gainey, his wife always put forth \nher best effort into her work.  Per Mr. Gainey, the Claimant’s work required physical labor.  Mr. \nGainey also testified that his wife took care of chores around the house, including the gardening \nand all of the cleaning.  However, he testified that since the Claimant’s injury of July 2018, the \nClaimant is very limited in what she can do around the house.  Per Mr. Gainey, the Claimant has \nnow made a hundred-and eighty-degree turn.  According to Mr. Gainey, he has to make the beds, \nvacuum,  sweep,  and  do  the  dishes  for  his  wife.    Now,  Mr.  Gainey  has  to  go  with  the  Claimant \nwhen she goes grocery shopping because she is unable to lift grocery items.  Mr. Gainey testified \nthat he has to bring all the groceries into the house for his wife.   \n Mr. Gainey confirmed that he was previously employed as a supervisor of a fertilizer plant \nat Miller-Bowie Supply.  He also previously worked for Cooper Tire for over nineteen years.  As \nsuch, Mr. Gainey confirmed he is familiar with the demands of physical labor.  Mr. Gainey further \nconfirmed  that  prior  to  her  injury,  the  Claimant  was  able  to  take  care  of  household  chores  and \nthose sorts of things around the house before she injured her back.  He confirmed that before the \nClaimant hurt her back, they would have the grandkids over, and they did cookouts and other fun \nactivities.  Mr.  Gainey  testified  that  after  the  Claimant  got  hurt,  she  continued  to  work  for  the \nschool  district.    However,  he  testified  among  other  things,  that  at  the  end  of the Claimant’s \nworkday, she would come home crying.                 \n\nGainey – G804863 \n8 \n \n On  cross-examination,  Mr.  Gainey  confirmed  that  he  has  never  been  employed  by  the \nschool district.  He also confirmed the Claimant is able to drive him to his doctor’s appointments.  \nMr. Gainey confirmed that the Claimant drove from Texarkana to Little Rock in May 2022 for her \ndeposition.  However, Mr. Gainey denied that his wife resigned her position with the school district \non February 26, 2020, to take care of him following his heart pump surgery.  He admitted he was \nnot  a  part  of  the  conversation  with  the  Claimant  and  Annett  Bassett,  Debbie  Huff,  or  Ci  Burns \nwhen she resigned her position.  He admitted that he does not know what the Claimant told them.  \nAccording to Mr. Gainey, the Claimant resigned her position with the school district because the \nadministration placed more strenuous job duties on her and as a result, she was physically unable \nto do the work because of her back condition.   \n Nevertheless, Mr. Gainey specifically testified that his heart condition took a dramatic turn \nand practically shut down, and he had to be hospitalized on March 10 to have the heart pump put \nin.  He agreed that this occurred around the time his wife resigned her position.  Mr. Gainey was \nshown a copy of his wife’s letter of resignation. Specifically, the following exchange took place: \n  A I can’t see it. \n  Q Okay.  It says due to unfortunate circumstances, my husband’s health, \nplease accept my resignation from my current position as custodian effective 2/26/2020 and then \nit says Crystal Gainey and she signed it. \n  A Yes, sir. \n  Q That would be around the time that you’re talking about, correct? \n  A Yes, sir. \n Mr. Gainey went on to testify that his treating physician explained to them that after the \nLVAD surgery, he would have to have someone take care of him.  This occurred around the time \n\nGainey – G804863 \n9 \n \nof the COVID-19 pandemic.  Therefore, the Claimant had to basically move into the hospital to \ntake care of her husband.     \nOn  redirect-examination,  Mr.  Gainey  testified  that  he  was  hospitalized  for  sixteen  days \nbefore he was discharged from the hospital.  According to Mr. Gainey, they had to stay three days \nat the hotel, which was next door to the hospital.  After that period of time, they went home.  Mr. \nGainey  confirmed  that  during  this  period,  his  wife  continued  to  have  medical  treatment  for  her \ninjury until recently.  He confirmed that his wife has had ongoing complaints relating to her injury.  \nAccording to Mr. Gainey, the Claimant has problems sitting in a chair for lengthy periods of time.  \nShe also has problems sleeping throughout the night and gets up in the middle of the night.  He \nconfirmed that the Claimant underwent fusion surgery which consisted of placing hardware in her \nback.   \nCrystal Gainey \n The  Claimant  is  62  years  old.    She  confirmed  that  she  completed  that  10\nth\n  grade.    The \nClaimant  quit  school  to  get  married  and  started  working.    She  did  not  obtain  any  additional \neducation beyond that time except training as a nurse’s aide.  The Claimant worked as a certified \nnursing assistant at St. Michael’s Hospital.  According to Mrs. Gainey, she did not ever obtain her \nGED.   \n Regarding her admittedly compensable back injury of July 16, 2018, while employed with \nthe Genoa School District.  Mrs. Gainey testified that she injured her back and other bodily parts \nwhen she slipped and fell on a wet floor that they had been stripping.  Her most severe injury was \nto her back.  The Claimant promptly reported her injury.  The Respondents sent the Claimant to \nHealthcare Express, and they performed some x-rays.  Mrs. Gainey confirmed that she underwent \n\nGainey – G804863 \n10 \n \nsurgery to her back in October of 2019.  The Claimant testified that she worked on light-duty from \nthe time she got hurt until her surgery.  \n The Claimant testified that three weeks after her surgery, her supervisor called her and told \nher she had to return to  work or be  fired.  The Claimant returned to work and worked until the \nlatter part of February 2020.  Mrs. Gainey underwent a functional capacity evaluation in April of \n2020.  She maintained that upon her return to work, they had her picking up trash.  However, the \nmachine the Claimant had to ride on while performing this task jerked and jarred her back.  She \nalso  testified  that  among  other  employment  duties,  she  had  to  do  repetitive  activities,  such  as \nreaching, bending, standing, cleaning windows and furniture and straightening desks.  Mrs. Gainey \nfurther testified that she worked in the cafeteria for a time.  Per the Claimant, this position included \njob activities that were hard and included heavy lifting of boxes of potatoes and various other food \nitems.    Mrs.  Gainey  gave  an  extensive  overview  of  her  overall  job  duties  while  working  in  the \ncafeteria,  which  included  cleaning,  washing,  and  scrubbing  the  floors.    (T.  40)    The  Claimant \nfurther testified that she had to also work guard duty. \n Mrs.  Gainey  confirmed  that  Dr.  Samuel  Clay  Overley  was  her  treating  physician.    She \nmaintained that the work she was being required to perform at the school involved bending and \ntwisting her back.  The Claimant further maintained that her work involved lifting more than ten \npounds.  She denied that any of her care-taking activities for her husband after his heart surgery \ninvolved  lifting,  bending,  pulling,  and/or  pushing.    Specifically,  Mrs.  Gainey  testified  that \nfollowing her husband’s heart surgery, she had to check a monitoring box (which was apparently \nfor his heart) and blood pressure, and she had to change his bandaging every so many days.  The \nClaimant also prepared her husband’s meals per his diet restrictions, but she denied being required \nto lift him for any reason.     \n\nGainey – G804863 \n11 \n \n She admitted that prior to leaving her employment with the school district, she had some \ndiscussions  with  management.    According  to  Mrs.  Gainey,  she  did  not  have  enough  hours  to \nqualify for FMLA because she did not have enough accrued leave.  Per the Claimant she was told \nto return to work or be fired.  The other option was for her to resign, which would potentially allow \nher to be rehired by the school district. \n The Claimant confirmed that she underwent a functional capacity evaluation that resulted \nin some permanent physical work restrictions being placed on her.  She is restricted from lifting \nanything over ten pounds.  When traveling, the Claimant must take a break every thirty to forty \nminutes and walk around before proceeding to drive again.  The Claimant has difficulty walking \non concrete because it causes her to have severe back pain.  She is limited in reaching, stretching, \nand bending, but she can do some stooping.  The Claimant has been directed not to do prolonged \nsitting and standing, and no twisting or turning of her body.  According to the Claimant, she is not \nfamiliar with any job at the Genoa School District that would meet her physical restrictions.  She \ntestified that when she worked on light duty, they had her do heavy lifting, and challenging things, \nwhich included but not limited to lifting the copy paper, walking students back and  forth to the \nrestrooms  and  outside  for  them  to  catch  the  bus.    The  Claimant  further  testified  that  when  the \nteachers  had  holiday  parties,  she  had  to  decorate  their  classrooms.    However,  the  Claimant \nadmitted  that  while  doing  the  arts  and  crafts,  she  could  alternate  standing  and  sitting,  which \npermitted her to work within her physical limitations.  She denied that the school district offered \nher a job of this type.  The Claimant also denied that they offered a job on a permanent basis.      \n Following the Claimant’s April 15, 2020, functional capacity evaluation, she denied having \nany oral and/or written communications with the school district.   Prior to going to work for the \nschool district, the Claimant worked for a daycare center for approximately five years.  She denied \n\nGainey – G804863 \n12 \n \nshe could perform that job because of the lifting, bending, and twisting involved in the essential \nfunctions of taking care of the infants and toddlers.  The Claimant stated that if the school district \nwould allow her to collaborate with the teachers, she could perform those jobs because there would \nbe no strenuous, repetitious, lifting or twisting activities involved.  She could also do work that \ninvolved taking the kids to the restroom and helping the teachers with art projects and things of \nthat nature.  However, the Claimant denied that she would be able to work in the cafeteria or help \nwith the waxing and stripping of floors.      \nPrior to her injury, the Claimant’s employment duties included cleaning the classrooms, \nsweeping, dusting, mopping, wiping down the desks, sinks, and walls. According to the Claimant, \nshe also had to vacuum, move furniture around and help the teachers to do whatever they needed \ndone.    She  confirmed  that  her  employment  duties  were  extremely  arduous  work  and  included \nactivities outside of the restrictions placed on her by Dr. Overley.  \nMrs. Gainey confirmed that since her surgery, she has had some injections therapy to help \nrelieve her back pain and related symptoms.  The Claimant confirmed that a spinal cord stimulator \nhas  been  recommended  for  her  back.    She  denied  being  eligible  for  Social  Security  Disability \nbenefits or having enough quarter in to qualify for these benefits.   \nPer  the  Claimant,  Dr.  Overley  discharged  her  from  his  care  after  he  referred  her  to  Dr. \nSmith for the spinal cord stimulator. \nOn  cross-examination,  the  Claimant  confirmed  that  her  husband  had  a  pacemaker  and \ndefibrillator  put  in  eight  years  ago.    Then,  he  had  heart  pump  placement  surgery  on  March  10, \n2020.  She confirmed her husband has been placed on the heart transplant list since March of 2022.  \nMrs. Gainey testified that she left her employment with the school district in part, to help \ncare for her husband.  She confirmed that she had to be off work for at least three weeks or longer \n\nGainey – G804863 \n13 \n \nfollowing her husband’s surgery.  The Claimant confirmed that she had to either show up for work \nor be fired because she did not qualify for FMLA.  Therefore, Mrs. Gainey decided that it was in \nher best interest to resign her position with the school district.   \nThe Claimant admitted that she did not re-apply  for her position with the school district \nafter her husband’s surgery, nor did she contact them in any way to try and get her job back.  She \nadmitted that after her July 2018 injury, she continued to work except for the few periods of time \nshe  was  receiving  treatment,  and  until  her  resignation  on  February  26,  2020.    The  Claimant \nadmitted that she did not apply for or interview for a job any place else after that time.  According \nto  the  Claimant,  she  was  not  released  from  her  doctor  at  that  time.    She  admitted  that  after \nundergoing the functional capacity evaluation in April 2020, she did not apply or interview for a \njob at that point.  Mrs. Gainey admitted that she has not called Ms. Burns, Ms. Huff, or Ms. Bassett \nsince February 2020.  She confirmed that she never filed for any teacher’s aide job or anything.  \nShe  admitted  that  following  her  July  16,  2018,  injury,  she  returned  to  work  beginning \nAugust of 2018.  The Claimant confirmed she worked modified duty until her surgery.  Then she \nreturned back to work and worked until February of 2020.  Mrs. Gainey admitted that she stayed \nat the hospital with her husband due to the COVID-19 pandemic.  His surgery was on March 10 \nand they returned home from Little Rock to Texarkana on March 24. \nThe Claimant admitted that she does not take any medication for her back.  She testified \nthat she only took medication after her surgery.  Mrs. Gainey admitted that she is able to drive. \nAccording  to  the  Claimant,  she  was  released  from  medical  care  after  she  chose  not  to  undergo \nimplantation  of  the  pain  stimulator.    The  Claimant  testified  that  she  decided  not to  have  the \nstimulator implanted because of long-term health and safety concerns, which would have included \nher  inability  to  undergo  an  MRI.    She  confirmed  that  the  primary  injury  was  to  her  back.    The \n\nGainey – G804863 \n14 \n \nClaimant admitted that she did not injure her arm or shoulder while working at the school district.  \nShe  confirmed  that  she  was  in  a  sling  and  told  them  that  she  had  to  have  a  replacement  and  a \nreversal done on her right arm.  The Claimant is right-handed.  She confirmed that she first started \nhaving  problems  when  her  arm  hurt  last  year.    The  Claimant  admitted  that  she  has  done  some \nwaitressing at a small country restaurant.  There, she cooked, served food, cleaned up and waited \non the customers.  She also worked at a daycare for a church.  She worked as a teacher’s aide in \naddition to the custodial work that she did at the school.        \n   Under further questioning, the Claimant admitted that she had two slipped or ruptured \ndiscs  in  her  back  some  twenty  years  ago.    She  underwent  some  injections.    According  to  the \nClaimant, it took some time for her back to heal, but she never had any more back problems until \nher most recent injury with the school district.   \nRegarding her compensable injury, the Claimant admitted that after she had surgery on her \nback and had significant improvement.  However, the Claimant maintained that she is a long way \nfrom being well and able to do the things she used to do.  The Claimant admitted that she told the \nperson  doing  the  functional  capacity  evaluation  that  she  went  back  to  work  on  light  duty  and \nworked until she resigned due to having to take care of her husband.  According to the Claimant, \nshe wanted to work and keep her job, but she had no choice but to resign or be fired.  She admitted \nthat she had the option to resign and then reapply if she wanted to return to work for the school \ndistrict.   \nMrs. Gainey confirmed that her supervisor, Ms. Burns, communicated to her jobs that were \ngoing to be made available.  She agreed that one of the light duty jobs she worked in included a \nteacher’s aide position, but it did not include teaching.  \n\nGainey – G804863 \n15 \n \nOn redirect examination, the Claimant confirmed that the job that she actually performed \nwhen she returned to work exceeded the restrictions placed on her by Dr. Overley.  Mrs. Gainey \ndenied that she was ever offered a job that did not exceed her restrictions.   \nMrs.  Gainey  admitted  on  recross  examination  that  she  did  not  interview  or  do  anything \nproactively to go after a job with the school district.   \nDebbie Huff   \n Ms. Huff testified on behalf of the Respondents.  She is the superintendent of the Genoa \nCentral  School  District.    She  worked  for  the  school  district  in  July  of  2018  as  the  Director  of \nFederal Programs.  She oversaw Title 1 and Title II federal funding that included distribution of \nmaterial and resources for teachers and students.  \n She confirmed that she was appointed the interim superintendent in February 2020.  Ms. \nHuff admitted to meeting with the Claimant and Ms. Burns to discuss her options surrounding her \nbeing off work with her husband due to his heart surgery.  She confirmed that the Claimant did not \nqualify for FMLA.  Ms. Huff verified that the Claimant decided to resign so she could be with her \nhusband in hopes of trying to come back to the school district at some point.  She denied that there \nwas any discussion about the Claimant being unable to perform any of the job duties that she had \nbeen assigned to work.  Ms. Huff admitted that she typed the Claimant’s letter of resignation on \nher computer, but the Claimant read over it and signed it in her presence.  She denied having any \ncontact with the Claimant after she signed the letter of resignation on February 26, 2020.   \n On  cross-examination,  Ms.  Huff  confirmed  that  the  Claimant  does  not  have  a  college \ndegree.  Ms. Huff was not aware of anyone communicating to Mrs. Gainey regarding a job offer.  \nShe confirmed that back in 2018 she was a state employee administering federal money.  At that \ntime that the Claimant had discussions about taking care of her husband, Ms. Huff served as the \n\nGainey – G804863 \n16 \n \ninterim superintendent for the district.  She admitted that the work activities in the cafeteria could \ninvolve  bending,  twisting,  and  lifting  greater  than  ten  pounds.    Ms.  Huff  verified  that  the \nClaimant’s work in the cafeteria would exceed the restrictions provided by her doctor.   \n She was not aware of a custodial job that did not involve bending, twisting, or lifting no \ngreater than ten pounds.  Ms. Huff confirmed that the school district did not ever communicate to \nher that they had a job available for the Claimant within her restrictions after April 15, 2020.  She \nconfirmed  that  the  Claimant  came  to  her  because  she  was  worried  about  her  husband,  and  she \nwanted to protect her job if possible.  Ms. Huff admitted that she gave the Claimant the option of \nresigning so that it would look better if she decided to return to work for the school district.  She \nconfirmed that she told the Claimant if she did not show up for work, it could lead to disciplinary \nactions  which  could  lead  to  her  termination.    She  admitted  that  the  three  weeks  the  Claimant \nneeded to be with her husband would have exceeded the time she was allotted for taking off work \nto continue her employment with the school district.  \n On redirect examination, Ms. Huff confirmed that the Claimant worked for a year and half \nafter her injury in July 2018.  Specifically, the Claimant continued to work various modified jobs \nfor the school district.  She denied that Mrs. Gainey indicated that there was any ill-will between \nher and the school district.  Ms. Huff confirmed that during her conversation with the Claimant in \nFebruary of 2020, she never indicated to her that there was a problem with Ms. Burns or anyone \nelse.    Moreover,  nor  did  the  Claimant  indicate  to  Ms.  Huff  that  she  was  having  problems \nperforming her job responsibilities.   \n On  recross  examination,  Ms.  Huff  admitted  that  she  did  not  ever  observe  the  Claimant \nperforming her job duties.  She confirmed that the Claimant had restrictions in 2019 that kept her \nfrom sitting or standing longer than thirty minutes.   \n\nGainey – G804863 \n17 \n \nCi Ci Burns      \nMs. Burns is the custodial supervisor at the Genoa Central School District.  She has held \nthis position for twenty-nine years and has been the custodial supervisor for ten years.  According \nto Ms. Burns, the Claimant worked as a custodian under her.  She agreed that she supervised the \nClaimant.  Ms. Burns confirmed that  Mrs. Gainey began working  for the  school district  around \nApril 30, 2018, which would have been the 2018-2019 school year.  She admitted that the Claimant \nworked  extra  hours  during  the  summer  months.    Per  Ms.  Burns,  although  the  Claimant  had  a \ncontract, she was not considered a salaried employee.   \n She testified that the Claimant had light-duty work restrictions on March 25, 2019, placed \non her by Dr. Overley.  Per these restrictions, the Claimant was restricted from twisting, bending, \nand  lifting  no  more  than  fifteen  pounds.    She confirmed that if the Claimant’s restrictions had \nchanged, she would have made a new list of items/duties for her.  Ms.  Burns agreed that if she \ncontacted the Claimant to return to work, it would have been based on a doctor indicating that she \ncould return to work.  She agreed that the Claimant was provided lighter work duties within her \nphysical  limitations  and  restrictions,  which  included  wiping  down  desks  and  disinfecting  the \nclassrooms, which simply entailed spraying a can of Lysol.  According to Ms. Burns, this occurred \nduring the COVID-19 pandemic.  \n Under further questioning, Ms. Burns testified that during the school year 2019-2020, she \nprepared a list of duties for the Claimant.  Said list indicated that the Claimant was responsible for \nmonitoring  the  students  exiting  and  entering  the  campus,  cleaning  windows,  picking  up  trash, \nassisting in the cafeteria (which involved putting food on trays and handing trays to the students).  \nThe Claimant was  required to stand in the serving line and scoop the tray up and slide it to the \nstudents.  She confirmed that the Claimant did not have to lift the trays to give them to the students.   \n\nGainey – G804863 \n18 \n \nInstead,  the  Claimant  only  had  to  push  the  tray  outward  to  the  students,  which  was  within  her \nrestrictions.    Ms.  Burns also  testified  that  there  were  eight  to  ten  other  workers  performing  this \nsame task. \n According  to  Ms.  Burns,  the  Claimant  never  indicated  to  her  that  she  was  unable  to \nphysically perform the job duties that she was assigned to perform at that time.  She agreed that \nhad the Claimant complained to her, she would have modified her job duties.  Ms. Burns denied \nthat she ever indicated to the Claimant she could not return to work for the school district.  She \nspecifically denied that she threatened to fire the Claimant if she did not do certain things.  Ms. \nBurns also denied having reduced the Claimant’s pay when she returned to work after July of 2018.  \nInstead, Ms. Burns testified that the Claimant would have been eligible for a raise.   \n On  cross-examination,  Ms.  Burns  confirmed  that  she  did  not  notify  Mrs.  Gainey  of  any \navailable  jobs  after  February  26,  2020.    Ms.  Burns  testified  that  the  Claimant  was  a  very  good \nworker.   \n Ms. Burns confirmed on redirect examination that the jobs that are posted are available to \nanyone who has either internet connection or social media.  She agreed that this is the way that the \nschool district goes about notifying people of jobs.  \n                             \nMedical Evidence \n The first medical record of evidence following the Claimant’s fall at work is dated July 16, \n2018.  The Claimant sought medical services from HealthCare Express due to a slip and fall on \nstripper wax on the floor at work as she came around the corner.  Mrs. Gainey reported that she \nhit her tailbone and both her hips hard.  The Claimant also complained of a headache in the back \nof the head after hitting it on the floor.    \n\nGainey – G804863 \n19 \n \nThe Claimant sought medical treatment from HealthCare Express on August 20, 2018, for \na follow-up appointment of back and head injuries.  The Claimant was assessed with a contusion \nof the head, and a lumbar contusion.  At that time, an MRI of the lumbar spine was recommended \nto determine if there was any nerve root impingement.   \n An  MRI  of  the Claimant’s lumbar  spine  was  performed  on  August  24,  2018,  with  the \nfollowing impression: \n1. Severe  L4-5  canal  stenosis  secondary  to  spondylolisthesis,  small  broad-based  disc \nbulge and bilateral facet arthropathy. \n2. Small L5-S1 central disc protrusion.    \nThe Claimant underwent an evaluation at UAMS by Dr. Micheal D. Cassat on September   \n27, 2018, due to significant low back pain since a fall at work several weeks ago.  Her back pain \nradiated  bilaterally  to  legs  and  thighs.    However,  there  was  no  associated  sensory  change  or \nweakness.  Dr. Casset performed  x-rays which showed a Grade 1 spondylolisthesis at L4-5, for \nwhich  physical  therapy  strengthening  and an  epidural  steroid  injection  at  L4-5  to  help  with  the \nClaimant’s radicular leg pain.  They also discussed medial branch blocks with possible rhizotomy \nfor her axial back pain.  As a result, the Claimant was placed on restrictions of no lifting, pushing, \nor pulling greater than ten pounds, and no repetitive flexion or extension.  \n On December 10, 2018, the Claimant returned to UAMS for a recheck of her low back pain \nwith radiculopathy.  Dr. Cassat noted that her leg pain was much better after an epidural steroid \ninjection, but she continued to have significant low back pain.  At that time, Dr. Cassat assessed \nthe  Claimant  with  low  back  pain,  which  was  potentially  associated  with  radiculopathy.    His \nrelevant  treatment  recommendations  included  return  to  Interventional  Pain  for  medial  branch \nblocks with rhizotomy, continued physical therapy with core strengthening only, limited extension \n\nGainey – G804863 \n20 \n \nand  rotation,  with  continued  same  work  restrictions,  with  follow-up  in  six  weeks,  or  sooner  if \nneeded.             \n The  Claimant  returned  to  Dr.  Cassat  on  January  28,  2019,  to  discuss  her  low  back \nsymptoms  and  previous radicular  leg  pain.    Dr.  Cassat  reported  that  unfortunately  the  Claimant \ncomplained  of  worsening  pain  after  medial  branch  blocks  with  zero  relief  during  lidocaine \ncomponent.  Her pain continued to be moderate to severe with activity, especially with standing \nextension and rotation.  Dr. Cassat opined: \nAt  this  point  she  has  failed  conservative  treatment  measures  including  physical  therapy, \nmedial branch blocks and epidural steroid injections.  Her radicular leg pain resolved after \nher  epidural  steroid  injection,  but  she  continues  to  have  severe  debilitating  back  pain.    I \nwould like her to see my partner to discuss  further treatment options including potential \noperative treatment. If there is no further appropriate treatment for her work-related injury, \nshe will need a functional capacity evaluation. \n \nOn February 8, 2019, the Claimant presented to Samuel Clay Overley’s clinic for an  \nevaluation  of  her  severe  lower  back  pain  associated  with  some  buttock  pain  and  left  lower \nextremity radiculopathy.  The Claimant reported she had a fall back in July of 2018 when all her \npain started.  She complained of severe pain in the lower back as well as the buttocks and primarily \nthe left lower extremity.  However, after an L4-5 transforaminal injection on the left, her left lower \nextremity pain was better.  The Claimant continued to have severe low back pain.  Although the \nClaimant   had   tried   epidural   steroid   injections,   facet   blocks,   narcotics,   physical   therapy, \nacupuncture, membrane stabilizers, and muscle relaxers without any significant lasting relief.  The \nClaimant  was  referred  to  Dr.  Overley  by  his  colleague,  Dr.  Cassat,  for  evaluation  for  potential \nsurgical intervention.    \n A computed tomography report dated February 25, 2019, demonstrates that the Claimant \nunderwent a CT of her lumbar spine, with the following IMPRESSION: \n\nGainey – G804863 \n21 \n \n1. L4-5 level spinal stenosis and bilateral lateral recess stenosis due to prominent bulging \nof  the  annulus  fibrosis,  facet  arthropathy  and  ligamentous  hypertrophy.    Small  disc \nprotrusion cavity excluded, and MRI of the lumbar spine is recommended for further \nevaluation. \n2. Diffuse lumbar spondylosis as detailed above. \n \nOn March 1, 2019, the Claimant presented to Dr. Overley in clinic for evaluation of  \n \nsevere  low  back  pain  associated  with  left  greater  than  right  buttock  and  left  lower  extremity \nradiculopathy.    At  that  point,  Dr.  Overley  recommended  that  the  Claimant  continue  physical \ntherapy for at least another six months and if after that she was still having severe pain, he would \nconsider offering an L4-5 instrumented fusion.  In the meantime, Dr. Overley put the Claimant on \nlight duty work for the next six months.  \n The Claimant underwent a Functional Capacity Evaluation on April 19, 2020.  The results \nof this evaluation indicate that the Claimant put forth a reliable effort, with 55 of 55 consistency \nmeasures within expected limits.  The examiner stated that further analysis of the data collected \nduring this evaluation indicates that Claimant did put forth a consistent effort and passed all criteria \nfor a reliable effort indicating that a significant degree of effort was put forth.  She was consistent \nwith repeated trial testing, distraction-based testing for which she exhibited appropriate responses \nto material handling and strength testing.  The examiner concluded that the Claimant completed \nthe  functional  testing  on  this  date  with  reliable  results.  Overall,  the  examiner  opined  that  the \nClaimant demonstrated the ability to perform work in the light classification of work as defined \nby the U.S. Dept. of Labor’s guidelines over the course of a normal eight-hour workday within \nlimitations as noted above. \n On December 9, 2020, the Claimant underwent evaluation by Amelia A. Ray, APRN, CNP, \nto discuss her MRI and physical therapy.  The Claimant reported she was prescribed oral steroids, \nand they improved her back pain and leg pain a bit.  Unfortunately, this lasted only about four days \n\nGainey – G804863 \n22 \n \nand then her back pain returned.  At that time, the Claimant’s pain was in her low back diffusely \nand radiated into bilateral legs.  The Claimant also reported pain in her knee and buttocks, hip, and \ndown the back of her left leg.  Per this medical report, the Claimant was ten months status post L4-\nL5 posterior decompression with instrumented fusion, and she did very well postoperatively until \nabout four months ago when she started having feelings of radicular pain again as well as low back \npain.   Imaging was detailed as the following: \nMRI lumbar spine shows no new disc bulge or protrusion or canal stenosis at any level. \n \nEvaluation  of  neural  foramina  limited  at  L4-L5  and  L5-S1,  however  without  any \nsuggestion of significant foraminal narrowing.  Likely mild right foraminal narrowing L5-\nS1 and mild to moderate foraminal narrowing bilaterally at L4-L5. \n \nThe Claimant returned to Nurse Ray on September 15, 2021, for an MME evaluation \nand an impairment rating.  This clinical note shows that the Claimant was one year out status post \nL4-5 posterior decompression and instrumented fusion, but she had done quite well following this \nsurgery.    The  Claimant  still  had  occasional  pain  down  the  left  lower  extremity.    She  also  had \noccasional  back  pain.      At  that  time,  the  Claimant  was  declared  to  be  at  maximum  medical \nimprovement for her back injury.  Her impairment rating based on AMA guidelines 4\nth\n volume \nwas  25%  to  the  whole  person  based  off  of  radiculopathy  and  loss  of  motion  segment  integrity.  \nThey  discussed  the  fact  that  she  continued  with  left  lower  extremity  pain  and  wanted  to  try  an \nepidural steroid injection.    \n       Adjudication \nPermanent and Total Disability, or alternatively, Wage-Loss Disability \n  The  Claimant  has  asserted  that  she  has  been  rendered  permanently  and  totally  disabled \nbecause of her compensable back injury of July 16, 2018, or in the alternative, that she sustained \nwage loss, because of her work-related injury.  \n\nGainey – G804863 \n23 \n \nIn that regard,  Ark. Code Ann. §11-9-519(e)(1) (Repl. 2002) provides: \"Permanent total \ndisability\" means an inability, because of compensable injury or occupational disease, to earn a \nmeaningful wage in the same or other employment.   \nFurthermore, the statute provides that the burden of proof shall be on the injured employee \nto prove their inability to earn any meaningful wage in the same or other employment.  Ark. Code \nAnn. §11-9-519(e)(2) (Repl. 2002). \nThe evidence before me does not show that the Claimant has been rendered permanently \nand totally disabled due to her July 16, 2018, back injury.  \nHere, the Claimant worked as a custodial worker for the school district.  She sustained a \nwork-related  fall  when  she  slipped  and  fell  on  a  floor  that  was  being  stripped  and  waxed  by \ncoworkers.    The  Claimant  promptly  reported  her  injury  to  management,  and  they  provided  her \nappropriate medical care.  After the Claimant failed conservative treatment, she underwent back \nsurgery  by  Dr.  Overley  in  October  2019.    Although  the Claimant’s testimony and the  medical \nrecords mention that Dr. Overley performed a posterior spinal fusion at L4-5 with interbody, the \nsurgical report for this surgery has not been made a part of the record.  Review of the evidence \nleads me to conclude that the Claimant underwent back surgery in October 2019.  \nFollowing the Claimant’s back surgery, on December 18, 2019, she returned to work for \nthe  school  district  and  worked  in  various  positions,  performing  light-duty  work.    The  Claimant \nperformed  light-duty  for  the  district  work  until  February  26,  2020.    At  that  point,  the  Claimant \nresigned  her  position  with  the  school  district  so  that  she  could  care  for  her  husband,  who  was \nscheduled for heart surgery.   \nOn  April  19,  2020,  the  Claimant  underwent  an  FCE.  Per the Claimant’s FCE, she has \npermanent restrictions as noted above in the light duty category.  The Claimant was declared by \n\nGainey – G804863 \n24 \n \nDr. Overley’s clinic to be at MMI for her back injury in September 2021.  At the time, the Claimant \nwas  assessed  with  a  25%  whole  body  anatomical  impairment  for  her  compensable  back  injury.  \nRespondents No. 1 accepted and paid the 25% impairment rating for the Claimant’s back injury.  \nThe Claimant admitted that she can drive and perform her own personal care needs.  Her \ntestimony demonstrates that after her husband’s heart surgery in March 2020, she was able to able \nto prepare his meals and care for him.  The Claimant does not take any medications for her back.  \nNotably, the Claimant ambulates without the use of any assistive technology or adaptive devices.    \nConsidering  all  of  the  above-mentioned  reasons,  particularly  the  fact  that  the  Claimant \nsuccessfully returned to work following her fusion surgery and was able to perform her assigned \nlight-duty employment activities without any documented problems or difficulties performing her \nduties, until she resigned her position with the school district to care for her husband,  and because \nshe is able to perform work in the light duty category, I am unable to find that the Claimant has \nbeen rendered permanently and totally disabled by her compensable back  injury of July 2018.  \n The  wage-loss  factor  is  the  extent  to  which  a  compensable  injury  has  affected  the \nClaimant’s ability to earn a livelihood.  Whitlatch v. Southland Land &Dev., 84 Ark. App. 399, \n141  S.W.  3d  916  (2004).    When  considering  claims  for  permanent  partial  disability  benefits  in \nexcess of the employee's percentage of permanent physical impairment, the Commission may take \ninto account, in addition to the percentage of permanent physical impairment, such factors as the \nemployee's age, education, work experience, and other matters reasonably expected to affect her \nfuture earning capacity.  Ark. Code Ann. § 11-9-522(b)(1) (Repl. 2002).        \nIn considering factors that may affect an employee's future earning capacity, the appellate \ncourt considers the Claimant's motivation to return to work, since a lack of interest or a negative \n\nGainey – G804863 \n25 \n \nattitude impedes an assessment of the Claimant's loss of earning capacity.  Ellison v. Therma Tru, \n71 Ark. App. 410, 30 S.W.3d 769 (2000).  \nHere, the Claimant is 62 years of age.  She is of advanced age and has a limited education.  \nThe Claimant worked for the school district as a custodial worker.  In July 2018, she slipped and \nfell on a wet floor primarily injuring her lumbar spine. Ultimately, the Claimant underwent back \nsurgery for her back. After her October 2019 back surgery, the Claimant returned to work for the \nschool district and performed various jobs in the light-work duty category  until her resignation.  \nFollowing an FCE, the Claimant was given permanent physical restrictions in the light category \nof work.   \nThe  evidence  shows  that  the  Claimant  resigned  her  position  with  the  school  district  in \nFebruary 2020.  Although the Claimant maintained she had problems performing these light duty \nemployment  duties,  she  did  not  make  any  documented  complaints,  written  or  otherwise  to \nmanagement, concerning her alleged difficulties performing her assigned work.  Both Ms. Burns \nand  Ms.  Huff  credibly  testified  that  the  Claimant  did  not  complain  to  either  of  them  about  any \ndifficulties  with  her  assigned  light-duty  work.    More  importantly, the  Claimant’s  letter  of \nresignation states that her sole reason for resigning her position with the school district was to take \ncare  of  her  ailing  husband.    The  testimony  of  these two witnesses and the Claimant’s letter of \nresignation does not establish that the Claimant resigned because she had difficulty performing her \nassigned light-duty work.  Instead, the preponderance of the credible evidence proves the Claimant \nresigned from her job with the school district for the sole purpose of caring for her husband due to \nhis upcoming heart surgery.    \nFurthermore, upon the Claimant’s return to work after her lumbar surgery, the Claimant \nperformed her assigned light duty work, and she made the same or more wages as she was paid \n\nGainey – G804863 \n26 \n \nprior to her injury.   Because the preponderance of the credible evidence shows that the Claimant \nsuccessfully  returned  to  work  for  the  school  district  after  her  back  surgery,  and  had  no  loss  or \ndecrease in her  earning capacity,  I am unable to find that the Claimant sustained any wage loss \ndisability as a result of her compensable back injury of July 16, 2018.   \nThe issue pertaining to a controverted attorney’s fee has been rendered moot and not \ndiscussed in this opinion. \n              ORDER \n This  claim  for  permanent  and  total  disability  benefits  and/or  wage  loss  is  hereby \nrespectfully denied and dismissed.  The issue pertaining to a controverted attorney’s fee has been  \nrendered moot and not addressed herein. \nIT IS SO ORDERED.                \n \n                                                                               \n                                                                                               ____________________________ \n                                                                 Chandra L. Black       \n                                                Administrative Law Judge","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO.: G804863 CRYSTAL GAINEY, EMPLOYEE CLAIMANT GENOA CENTRAL SCHOOL DISTRICT, EMPLOYER RESPONDENT NO. 1 ARKANSAS SCHOOL BOARDS ASSOCIATION, WCT, THIRD PARTY ADMINISTRATOR/TPA RESPONDENT NO. 1 DEATH AND PERMANENT TOTAL DISABILITY TRUST FUND RESPONDENT NO. 2 OPIN...","fetched_at":"2026-05-19T22:55:55.109Z","links":{"html":"/opinions/alj-G804863-2024-03-01","pdf":"https://labor.arkansas.gov/wp-content/uploads/GAINEY_CRYSTAL_G804863_20240301.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}