{"id":"alj-G904652-2023-09-13","awcc_number":"G904652","decision_date":"2023-09-13","opinion_type":"alj","claimant_name":"Nela Jikatake","employer_name":"Cargill Meat Products,","title":"JIKATAKE VS. CARGILL MEAT PRODUCTS, AWCC# G904652 SEPTEMBER 13, 2023","outcome":"granted","outcome_keywords":["granted:4","denied:2"],"injury_keywords":["shoulder"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads//JIKATAKE_NELA_G904652_20230913.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"JIKATAKE_NELA_G904652_20230913.pdf","text_length":15255,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO.  G904652 \n \nNELA JIKATAKE, Employee                                                                            CLAIMANT \n \nCARGILL MEAT PRODUCTS, Employer                                                  RESPONDENT                        \n \nSEDGWICK CLAIMS MANAGEMENT, Carrier/TPA                                 RESPONDENT                       \n \n \n \n OPINION FILED SEPTEMBER 13, 2023 \n \nHearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Springdale, \nWashington County, Arkansas. \n \nClaimant represented by EVELYN E. BROOKS, Attorney, Fayetteville, Arkansas. \n \nRespondents represented by R. SCOTT ZUERKER, Attorney, Fort Smith, Arkansas. \n \n \n STATEMENT OF THE CASE \n  \n On August 23, 2023, the above captioned claim came on for hearing at Springdale, \nArkansas.  A pre-hearing conference was conducted on June 21, 2023, and a pre-hearing \norder was filed on that same date.  A copy of the pre-hearing order has been marked as \nCommission’s Exhibit #1 and made a part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1.   The Arkansas Workers’ Compensation Commission has jurisdiction of the \nwithin claim. \n 2.     The prior Opinion of November 30, 2022 is final. \n 3.      The claimant was earning sufficient wages to entitle her to compensation at \nthe weekly rates of $333.00 for total disability benefits and $250.00 for permanent partial \ndisability benefits. \n\nJikatake – G904652 \n \n2 \n \n At the pre-hearing conference the parties agreed to litigate the following issues: \n1.     Temporary total disability benefits from June 21, 2022 through a date yet to  \nbe determined. \n2.      Attorney fee. \nThe claimant contends she is entitled to  temporary total disability from June 21, \n2022 to a date yet to be determined.  Claimant reserves all other issues.   \n The   respondents   contend   that   all   appropriate   benefits   have   been   paid.  \nRespondents  further  contend  that  light duty would have  been  available but for the  fact \nthat claimant voluntarily terminated her employment with respondent employer resulting \nin claimant not being entitled to additional temporary total disability benefits.  \nFrom a review of the record as a whole, to include medical reports, documents, \nand other matters properly before the Commission, and having had an opportunity to hear \nthe testimony of the witnesses and to observe their demeanor, the following findings of \nfact and conclusions of law are made in accordance with A.C.A. §11-9-704: \n \n  FINDINGS OF FACT & CONCLUSIONS OF LAW \n \n 1.        The  stipulations  agreed  to  by  the  parties  at  a  pre-hearing  conference \nconducted on June 21, 2023 and contained in a pre-hearing order filed that same date \nare hereby accepted as fact. \n 2.        Claimant has failed to meet her burden of proving by a preponderance of \nthe evidence that she is entitled to temporary total disability benefits from June 21, 2022 \nthrough a date yet to be determined.  Claimant has proven by a preponderance of the \nevidence  that  she  is  entitled  to  temporary  total  disability  benefits  from  April  13, 2023, \n\nJikatake – G904652 \n \n3 \n \nthrough April 19, 2023.   \n 3.      Respondent  has  controverted  claimant’s  entitlement  to  all  unpaid  indemnity \nbenefits. \n \n FACTUAL BACKGROUND \n Claimant is a 53-year-old woman who began working for respondent in October \n2015  deboning  chicken.    She  suffered  an  admittedly  compensable  injury  to  her  left \nshoulder when she tripped on a pallet on June 11, 2019.   \n Claimant  was  treated  for  her  left  shoulder  injury  by  Dr.  Heim  who  diagnosed \nclaimant’s condition as adhesive capsulitis and he performed surgery on claimant’s left \nshoulder on September 23, 2019.  On October 30, 2019, Dr. Heim stated that claimant \nhad reached maximum medical improvement and he assigned her an impairment rating \nin an amount equal to 4% to the body as a whole. \n Claimant filed for and received a change of physician to Dr. Arnold who diagnosed \nclaimant   with   a   probable   rotator   cuff   tear   and   adhesive   capsulitis.      Dr.   Arnold \nrecommended  a  second  surgical  procedure  and  in  response  Dr.  Heim  opined that \nclaimant  was  not  in  need  of  any  further  treatment  or  diagnostic  studies.    Accordingly, \nrespondent  denied  liability  for  additional  medical  treatment  and  claimant  filed  a  claim \nrequesting approval  for  the  surgery  that had been  recommended  by  Dr.  Arnold.    In  an \nOpinion filed May 26, 2021, this Administrative Law Judge found that claimant had failed \nto meet her burden of proving by a preponderance of the evidence that she was entitled \nto the additional medical treatment recommended by Dr. Arnold.  Claimant appealed that \ndecision to the Full Commission, which in an Opinion filed October 14, 2021 reversed and \n\nJikatake – G904652 \n \n4 \n \nfound that claimant had proven by a preponderance of the evidence that she was entitled \nto additional medical treatment, including the surgery as recommended by Dr. Arnold. \n Following the Full Commission Opinion of October 14, 2021, Dr. Arnold chose not \nto treat the claimant in the workers’ compensation system.  As a result, claimant sought \nadditional medical treatment from Dr. Dougherty, who also recommended an arthroscopic \nprocedure;  albeit,  a  different  procedure  than  the  one  recommended  by  Dr.  Arnold  and \npreviously  approved.    Because  a  different  procedure  was  being  recommended  by  Dr. \nDougherty, respondent denied liability for the new procedure and a second hearing was \nconducted  on  November  9,  2022.    In  an Opinion  filed  November  30,  2022,  this \nAdministrative  Law  Judge  found  that  claimant  had  met  her  burden  of  proving by  a \npreponderance that she was entitled to the surgery as recommended by Dr. Dougherty.  \nThis Opinion was not appealed, and the parties have stipulated that it is final. \n Following  the  November  30,  2022  Opinion,  claimant  underwent  surgery  by  Dr. \nDougherty  on  April  13,  2023.    She  has  filed  this  current  claim  contending  that  she  is \nentitled  to  temporary  total  disability  benefits  beginning  June  21,  2022  and  continuing \nthrough a date yet to be determined.   \n \nADJUDICATION \n Claimant  contends  that  she  is  entitled  to  temporary  total  disability  benefits \nbeginning June 21, 2022 and continuing through a date yet to be determined.  In order to \nbe entitled to temporary total disability benefits, claimant has the burden of proving by a \npreponderance of the evidence that she remained within her healing period and that she \nsuffered  a  total  incapacity  to  earn  wages.   Arkansas  State  Highway  &  Transportation \n\nJikatake – G904652 \n \n5 \n \nDept. v. Breshears, 272 Ark. 244, 613 S.W. 2d 392 (1981).  \n After reviewing the evidence impartially, without giving the benefit of the doubt to \neither  party,  I  find  that  claimant  has  failed  to  meet  her  burden  of  proving  by  a \npreponderance of the evidence that she is entitled to temporary total disability benefits \nfrom June 21, 2022 through a date yet to be determined.  However, I do find that claimant \nhas  met  her  burden  of  proving  that  she  is  entitled  to  temporary  total  disability  benefits \nfrom April 13, 2023 through April 19, 2023.   \n As  previously  noted,  the  claimant  worked  on  the  respondent’s  deboning  line \nwashing chicken at the time of her left shoulder injury on June 11, 2019.  Following that \ninjury, the claimant continued to work for the respondent for a short period of time until \nshe voluntarily terminated her employment due to complaints of pain.  Claimant testified \nat her deposition as follows: \n  Q Your termination date at Cargill is July 19\nth\n of \n  2019.  Do you know why you were terminated on \n  July 19\nth\n of 2019? \n \n  A They did not stop me.  I stopped myself because \n  I couldn’t tolerate the pain. \n \n  Q And my question to you is when you got terminated, \n  you just quit going to work because of the pain; correct? \n \n  A Yes. \n \n  Q And when you stopped going, did you call them \n  and tell them you were not going? \n \n  A I didn’t call them.  I told them that I wanted to \n  resign, so they gave me two weeks to resign.  I was \n  the one that approached them because I couldn’t \n  handle the pain.  I wanted to resign. \n \n \n\nJikatake – G904652 \n \n6 \n \n Thereafter, claimant came under the care of Dr. Heim and he performed surgery \non the claimant’s left shoulder before giving her a full release.  Claimant has testified that \nsome  time  in  2021  she  went  to  work  for  George’s  for  two  weeks,  but  again  quit  her \nemployment due to pain.  Claimant acknowledged at her deposition that she did not have \nany restrictions at the time she went to work for George’s. \n  Q When you went to work for the two weeks at \n  George’s, did you have any restrictions. \n \n  A None. \n \n \n As previously noted, claimant filed for and received a  change of physician to Dr. \nArnold who recommended a second surgical procedure on the claimant’s left shoulder.  \nEven though Dr. Arnold had recommended a surgical procedure, Dr. Arnold nevertheless \nindicated that claimant could continue working with restrictions.  This is reflected in Dr. \nArnold’s reports of January 21, 2020; a work note dated February 4, 2020; a work note \ndated March 3, 2020; and Dr. Arnold’s report dated April 7, 2020. \n As  also  previously  noted,  after  the  surgery  recommended  by  Dr.  Arnold  was \nawarded by the Full Commission, Dr. Arnold chose not to continue his treatment of the \nclaimant.  As a result, claimant came under the care of Dr. Dougherty and her initial visit \nwith Dr. Dougherty occurred on June 20, 2022.  Claimant is requesting temporary total \ndisability benefits beginning the day after that initial visit with Dr. Dougherty.  In his report \nof June 20, 2022, Dr. Dougherty discussed surgery on the claimant’s left shoulder and \nindicated that claimant’s MRI scan showed a split tear in her biceps tendon.  He indicated \nthat  her  examination  was  consistent  with  left  biceps  tendinitis  and  adhesive  capsulitis.  \nSignificantly, Dr. Dougherty did not indicate that claimant was incapable of working, either \n\nJikatake – G904652 \n \n7 \n \nwith or without restrictions.  Claimant acknowledged that Dr. Dougherty did not give her \nany restrictions during the November 9, 2022 hearing. \n  Q How about when you saw Dr. Dougherty, did he \n  give you any restrictions? \n \n  A No.  He didn’t tell me anything about that.  He just \n  said we should do a surgery to make it better. \n \n \n In  her  deposition  of  August  10,  2023,  claimant  confirmed  that  Dr.  Dougherty \nindicated that she could work with restrictions. \n  Q Up until you saw Dr. Dougherty, did any doctor \n  have you on any kind of restrictions? \n \n  A What kind of restrictions? \n \n  Q Don’t work or do certain things at work.   \n \n  A No, no one said that.  Only he said that I could \n  work. \n \n  Q Did Dr. Dougherty tell you you should work? \n \n  A Yes, he said that I could work, but I shouldn’t \n  carry anything more than five pounds and that I should \n  use my right hand more than my injured hand. \n \n  Q After he told you that, did you look for any work? \n \n  A No, I didn’t.  (Emphasis added.) \n \n \n In order to be entitled to temporary total disability benefits, claimant must not only \nprove  that  she  remained  within  her  healing  period  but  also  that  she  suffered  a  total \nincapacity to earn wages.  Here, claimant may have remained within her healing period \nbut I do not find that claimant has proven by a preponderance of the evidence that she \nsuffered a total incapacity to earn wages beginning June 21, 2022, the day after her initial \n\nJikatake – G904652 \n \n8 \n \nvisit  with  Dr.  Dougherty,  and  continuing  through  a  date  yet  to  be  determined.    Dr. \nDougherty in his report of June 20, 2022 did not mention any restrictions placed upon the \nclaimant’s ability to work.  Furthermore, according to claimant’s deposition testimony, Dr. \nDougherty specifically told claimant that she could work with restrictions of no carrying \nmore than five pounds and using her right hand more than her injured hand.  Claimant \nacknowledged  that  despite  Dr.  Dougherty’s  indication  that  she  could  work,  she  did not \nlook for any employment. \n Based  upon  this  evidence,  I  find  that  claimant  has  failed  to  meet  her  burden  of \nproving by a preponderance of the evidence that she suffered a total incapacity to earn \nwages  beginning  June  21,  2022  and  continuing  through  a  date  yet  to be  determined.  \nTherefore, she is not entitled to temporary total disability benefits for that period of time. \n However,  I  do  find  that  claimant  is  entitled  to  temporary  total  disability  benefits \nbeginning  April  13,  2023  and  continuing  through  April  19,  2023.    I find  that  claimant \nsuffered a total incapacity to earn wages beginning on the date she underwent surgery \nby Dr.  Dougherty which was April 13, 2023.  In a return to work note dated April 17, 2023, \nDr.  Dougherty  indicated  that  claimant  could  return  to  work  as  of  April  20, 2023,  with  a \nwork  limitation  of  a  ten-pound  lifting  restriction.  Dr.  Dougherty  again  indicated  that \nclaimant  could  return  to  work  with  restrictions  in  reports  dated April  26, 2023;  May 24, \n2023; and July 12, 2023.  Based upon this evidence, I find that claimant remained within \nher healing period and that she suffered a total incapacity to earn wages beginning April \n13, 2023, the date of her surgery, and continuing until April 19, 2023.  \n Accordingly,  I  find  that  claimant  is  entitled  to  temporary  total  disability  benefits \nbeginning April 13, 2023 and continuing through April 19, 2023. \n\nJikatake – G904652 \n \n9 \n \nAWARD \n Claimant has failed to prove by a preponderance of the evidence that she is entitled \nto temporary total disability benefits beginning June 21, 2022 and continuing through a \ndate yet to be determined.  Claimant has proven by a preponderance of the evidence that \nshe  is  entitled  to  temporary  total  disability  benefits  beginning  April  13,  2023  and \ncontinuing through April 19, 2023.  Respondent has controverted claimant’s entitlement \nto all unpaid indemnity benefits. \nPursuant to A.C.A. §11-9-715(a)(1)(B), claimant’s attorney is entitled to an attorney \nfee  in  the  amount  of  25%  of  the  compensation  for  indemnity  benefits  payable to  the \nclaimant.   Thus, claimant’s attorney is entitled to a 25% attorney  fee  based  upon  the \nindemnity benefits awarded.   This fee is to be paid one-half by the carrier and one-half \nby the claimant.    \nThe  respondent  is  responsible  for  payment  of  the  court  reporter’s  charges  for \npreparation of the hearing transcript in the amount of $414.50. \nAll sums herein accrued are payable in a lump sum and without discount. \nIT IS SO ORDERED. \n \n      ________________________________ \n       GREGORY K. STEWART \n       ADMINISTRATIVE LAW JUDGE","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. G904652 NELA JIKATAKE, Employee CLAIMANT CARGILL MEAT PRODUCTS, Employer RESPONDENT SEDGWICK CLAIMS MANAGEMENT, Carrier/TPA RESPONDENT OPINION FILED SEPTEMBER 13, 2023 Hearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Springdale, Washington Coun...","fetched_at":"2026-05-19T23:02:48.031Z","links":{"html":"/opinions/alj-G904652-2023-09-13","pdf":"https://labor.arkansas.gov/wp-content/uploads//JIKATAKE_NELA_G904652_20230913.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}