{"id":"alj-G904931-2023-10-24","awcc_number":"G904931","decision_date":"2023-10-24","opinion_type":"alj","claimant_name":"Porter Sims","employer_name":"Bryant School District","title":"SIMS VS. BRYANT SCHOOL DISTRICT AWCC# G904931 OCTOBER 24, 2023","outcome":"denied","outcome_keywords":["dismissed:1","granted:2","denied:4"],"injury_keywords":["shoulder","back","rotator cuff"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/SIMS_PORTER_G904931_20231024.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"SIMS_PORTER_G904931_20231024.pdf","text_length":45404,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. G904931 \n \n \nPORTER R. SIMS,  \nEMPLOYEE                                                   CLAIMANT \n \nBRYANT SCHOOL DISTRICT,  \nEMPLOYER                                                     RESPONDENT \n            \nARK. SCHOOL BOARD ASS’N  \nWORKERS’ COMPENSATION TRUST/ \nARK. SCHOOL BOARD ASS’N,                                        RESPONDENT              \nINSURANCE CARRIER/TPA                                                                                                                      \n                                   \nOPINION AND ORDER FILED OCTOBER 24, 2023 \n \nHearing conducted on July 26, 2023, before the Arkansas Workers’ Compensation Commission \n(the Commission), Administrative Law Judge (ALJ) Mike Pickens in Little Rock, Pulaski County, \nArkansas.  \n \nThe  claimant was  represented  by  the  Honorable Daniel  E.  Wren,  Wren  Law  Firm,  Little  Rock, \nPulaski County, Arkansas.  \n \nThe respondents were represented by the Honorable Karen H. McKinney, Barber Law Firm, Little \nRock, Pulaski County, Arkansas. \n \nINTRODUCTION \n \nIn the prehearing order filed June 1, 2023, the parties have agreed to the following \nstipulations, which they affirmed on the record at the hearing: \n1. The Arkansas Workers’ Compensation Commission (the Commission) has \njurisdiction over this claim. \n2. The  employer/employee/carrier-TPA  relationship  existed at  all  relevant  times \nincluding December   20,   2018,   when   the   claimant sustained   an   admittedly \ncompensable injury to his left shoulder for which the respondents paid medical and \nindemnity benefits. \n \n3. The claimant’s average weekly wage (AWW) was $871.00, which is sufficient to \nentitle him to weekly compensation rates of $581.00 for temporary total disability \n(TTD), and $436.00 for permanent partial disability (PPD) benefits. \n \n  \n\nPorter R. Sims, AWCC No. G904931 \n \n \n \n2 \n4. The  respondents controvert  the  payment  of  any  additional  medical  or  indemnity \nbenefits other than those they have already paid to date. \n  \n5. The parties specifically reserve any and all other issues for future litigation and/or \ndetermination. \n \n(Commission Exhibit 1 at 1-2; Reporter’s Transcript at 141-42). Pursuant to the parties’ mutual \nagreement the issues litigated at the hearing were: \n  \n 1. Whether the claimant is entitled to additional medical and TTD benefits.  \n \n 2. Whether the claimant’s attorney is entitled to a controverted fee on these facts. \n \n 3. The parties specifically reserve any and all other issues for future litigation and/or \n  determination. \n \n(Comms’n Ex. 1 at 2; RT 142). \n \n The claimant contends he is entitled to TTD benefits from August 31, 2022, to a date yet \nto be determined. He contends that on or about December 20, 2018, he sustained an admittedly \ncompensable injury to his left shoulder when he tripped and fell while working on air conditioning \n(AC) units. The claimant has undergone three (3) surgeries between July 24, 2019, through March \n10, 2022, and has attended multiple visits for conservative treatment. The claimant contends that \non August  16,  2022, he  saw  Dr.  Smith,  who continued  his off-work status  until  September  27, \n2022. The claimant contends that on August 31, 2022, without a physician visit/examination, and \nwithout any consultation with the claimant, he received a random electronically signed note from \na licensed practical nurse (LPN) purporting to change his work status to sedentary with no use of \nhis left  arm.  At  this  point,  the  adjuster for  the  Arkansas  School  Board  Association Workers’ \nCompensation Trust, Ms. Misty Thompson, discontinued PPD benefits to the claimant. Thereafter, \non September 27, 2022, the claimant returned for his scheduled visit with Dr. Smith. The claimant \n\nPorter R. Sims, AWCC No. G904931 \n \n \n \n3 \ncontends he informed Dr. Smith he had felt a “pop” in his left shoulder while holding a wrench \nwhich caused an increase in his left shoulder pain. The claimant contends that Dr. Smith, without \nany reference to the aforementioned LPN’s August 31, 2022, note, continued to keep the claimant \non off-work status until he returned to Dr. Smith for review of an MRI Dr. Smith ordered at the \nSeptember  27,  2022,  visit.  The  claimant  contends  the respondents  have  failed  and/or refused  to \npay for any medical treatment past September 27, 2022, and have failed to pay him any additional \nTTD benefits since they terminated them on August 31, 2022. Therefore, the claimant contends he \nis entitled to payment of the subject and ongoing additional medical care, as well as TTD benefits \nfrom  the  date  the  respondents  terminated  them  on  August  31,  2022,  through  a  date  yet  to  be \ndetermined. (Comms’n Ex. 1 at 2-3; RT 142-43; RT 132-33). \n The respondents contend the claimant has received all benefits to which he is entitled. The \nclaimant was released to sedentary duty as of August 31, 2022, which the respondent-employer, \nthe Bryant School District (the school district) offered and made readily available to the claimant; \nhowever,  the  claimant  refused  this  offer  of  light  duty  employment  and  failed  and/or  refused  to \neven attempt to return to work. Consequently, the respondents contend the claimant is not entitled \nto any  additional TTD benefits since the  employer  has  work that  comports with the claimant’s \nphysical limitations and restrictions, they offered this work and made it available to him, but he \nfailed and/or refused to accept this offer and did not even attempt to perform the light duty job. In \naddition, the respondents contend that any additional medical treatment the claimant may require \nafter August 31, 2022, is not causally related to his compensable injury, but is the result of a new \ninjury and/or independent intervening cause that occurred as the result of the claimant working at \n\nPorter R. Sims, AWCC No. G904931 \n \n \n \n4 \nhome and lifting the wrench. (Comms’n Ex. 1 at 3-4; RT at 143-44; RT 129-32). \n     The  record  herein  consists  of  the  hearing  transcript  and  all  the  exhibits  therein  and/or \nattached thereto, as well as the parties’ blue-backed post-hearing briefs. \nSTATEMENT OF THE CASE \n       The claimant called two (2) witnesses at the hearing in support of his contentions: Mr. Terry \nHarper, the Facilities Maintenance Director (the maintenance director) for the school district (Mr. \nHarper), and the claimant himself, Porter R. Sims. Due to Mr. Harper’s schedule, the parties agreed \nthe claimant would call Mr. Harper as the first witness so he could be excused to attend a prior \ncommitment. (RT 18-22; 31-32). \nMr. Harper testified he became the maintenance director for the school district on July 1, \n2022, which  was after the claimant had retired, so he never personally supervised the claimant. \nBut Mr. Harper had previously held other positions within the school district and was familiar with \nthe claimant. Mr. Harper testified it is and was the school district’s practice to return all employees \nout  on  workers’ compensation  to light  duty work  that  fit within  the physical  limitations  and \nrestrictions  the workers’ doctor  placed  upon  him.  Mr.  Harper  testified he  currently has  several \nemployees working on light or sedentary duty and that he “never said no to anyone” [regarding a \ndoctor’s light duty work release of an employee who had been injured on the job]. (RT 29; 22-29) \n(Bracketed material added).  \nMr. Harper specifically testified he knew of no reason the claimant would not have been \nreturned  to  work  based  on  the  August  31,  2022  sedentary/light  duty work  release.  He  testified \nfurther he knew of no reason the claimant would not have been rehired by the district to return to \n\nPorter R. Sims, AWCC No. G904931 \n \n \n \n5 \nwork on light duty. (RT 27-32). \nThe claimant was the next witness called to the stand. The claimant is 68 years old, and he \nworked as a facilities/maintenance employee with the school district. He testified Dr. Joel Smith \nsaw him on August 16, 2022, at which time Dr. Smith’s office notes stated the claimant was to \nremain off work until seen back in the clinic. According to the claimant he did not return to the \nclinic until late September 2022 and he was unaware the facts and circumstances as to how the \nAugust 31, 2022 light duty release came about. (RT 32-43; Respondents’ Exhibit 2 at 20; RX1 at \n1-2). RX1 is a brief letter/note entitled “RTW”, and addressed, “To Whom It Mat Concern” signed \nby Dr. Joel Smith, the claimant’s treating orthopedic surgeon, which states: “Mr. Sims may return \nto work at a sedentary position only with no use of his left arm.” (RX2 at 20). The claimant testified \nhe did in fact see Dr. Smith on August 31, 2022. (RT 41; 34-41). Clinic notes after the date of the \nAugust 31, 2022, doctor’s visit and light duty work release reveal the claimant continued  to \nexperience  pain  during  PT; a  9/15/22 clinic note states  the  claimant  said  he had  experienced  a \n“pop” in his shoulder when he had rolled over in bed; and a 9/27/2022 clinic note written by Dr. \nSmith recommends the claimant, “remain off work until seen back in clinic for MRI result follow-\nup.” (RT 35-45; Claimant’s Exhibit 1 at 19; 32; 19-33). This off work status note was issued after \nthe claimant had experienced the “pop” in his shoulder rolling over in bed, and when he handed \nhis son a wrench while helping him work on a lawn mower carburetor. (RT 45-60). The claimant \nadmitted he had retired as of June 30, 2022, for his own personal reasons. (RT 117-129).     \nThe claimant testified the school district had previously returned him to work with similar \none (1)-arm work restrictions. The claimant testified the school district did not really have light \n\nPorter R. Sims, AWCC No. G904931 \n \n \n \n6 \nduty work, but he had always been returned to work and was allowed to work within his restriction \neven if that meant all he did was drive around in a truck with another employee all day. He further \ntestified  that  when  working  light  or  sedentary  duty,  the school district  abided  by  any  and  all \nphysical limitations and restrictions his doctor had placed on him. The claimant testified that he \ndid  not  have  an  issue  with  not  receiving  temporary  total  disability  benefits  as  of  his  light  duty \nrelease on August 31, 2022. The claimant testified if he was still employed with the district, he \ncould have returned to work on that release, but he retired from the district as of June 30, 2022. \n(RT 45-65). \nRegarding  the alleged “new  injury” noted  in  the PT records,  the  claimant  read  from  the \nSeptember 27, 2022, PT record that stated in pertinent part: “...and was helping his son change a \ncarburetor  on  Saturday,  holding  a  wrench,  and  felt  a  pop – pain has increased since then.” (RT \nCX1  at 32-33;  RX2  at  21-23). The  claimant  admitted he  reported  this injury to  his  physical \ntherapist and that what he told the physical therapist was true. The claimant identified a picture of \na  wrench  he  claimed  to  be  the  wrench  he  was  holding  while  helping  his  son  to  change  that \ncarburetor. Said wrench was as long as a dollar bill and very shiny. The claimant even brought that \nwrench  to  the  hearing  for  display. The  claimant  described  the  wrench  as  being  lighter  than  the \nthree-pound (3-lb.) weights used in PT. Concerning his comment that he felt a pop in his shoulder, \nthe claimant testified he had felt pops in his shoulder at other times as well such as when he was \nrolling over in bed. (RT 43-73). \n    On  cross-examination  the  claimant admitted he  would  not  have  told  the  physical  therapist \nthat he was “helping his son change a carburetor, holding a wrench, and felt a pop” if it was not \n\nPorter R. Sims, AWCC No. G904931 \n \n \n \n7 \nimportant for the doctor to know what he was doing and what caused the shoulder to pop and start \nhurting. He agreed with respondents’ counsel he told his physical therapist that he was “helping” \nhis son change a carburetor, not that he was “watching” his son change a carburetor. He admitted \nhe never said he was not doing anything but holding the wrench when the pop and pain occurred. \nRegarding his other references to his shoulder popping such as the one when he rolled over in bed, \nthe claimant acknowledged the paid after these incidents had eventually had lessened with time; \nhowever, concerning the wrench episode the claimant reported the pop caused an increase in and \na different type of pain that did not go away. (RT at 53-76). \nConcerning his experience with his previous light duty work releases at the school district \nthe claimant testified that following his first surgery, he was released to light duty work with the \nrestriction of no use of his left arm, and the school district accommodated him, and had provided \nhim work that fit within this restriction. The claimant agreed with Terry Harper’s testimony that \nthe school district had a demonstrated practice of allowing employees who had sustained work-\nrelated injuries and are released to light/sedentary duty to return to work, and to provide them work \nthat fit within their restrictions. The claimant admitted that each time he was released to work with \nno use of his left arm or no overhead duty, he was brought back to work and worked under those \nrestrictions. He testified he continued to work with restrictions until he was taken off work by Dr. \nJoel Smith for his third shoulder surgery. (RT 53-96).   \nOn  cross-examination  the  claimant also reviewed Dr. Joel Smith’s August  31,  2022, \nlight/sedentary duty work  release and  testified – initially over his attorney’s objection that was \nlater withdrawn – the light duty work release was valid. He further agreed the August 31, 2022, \n\nPorter R. Sims, AWCC No. G904931 \n \n \n \n8 \nlight duty release was electronically signed by the same person or persons that prepared and signed \nthe March 15, 2022 off work slip that was honored by the school district. (RT 58-64). \nAlso, on cross-examination the claimant admitted he had a 2000-square-feet shop on his \nproperty and that he and his son often worked there restoring a truck. The claimant recalled a June \n10, 2022, note from Carson Physical Therapy where he reported to the physical therapist, he had \nworked on his truck for three (3) hours the day before his PT appointment without any increase in \npain. He admitted  this  report  and  work  on  his  truck  occurred  after  his  third  surgery. When \nrespondents’ counsel confronted him with his deposition in which he had testified the last time he \nworked on his truck was January or February of 2021, or before his third left shoulder surgery, the \nclaimant admitted this was not in fact true. Likewise, the claimant denied he ever raked any leaves \nafter his third surgery in March 2022, but when shown a PT report from July 25, 2022, that stated \nhe had in fact raked leaves over the weekend, he admitted this, as well. (RT 65-65-82   \nFinally, concerning his knowledge of the August 31, 2022 light duty work release which \nwas  given  him  after  the  date  he  retired  for  his  own  personal  reasons,  the  claimant  admitted on \ncross-examination he had testified in his deposition that Misty Thompson, the respondents’ claims \nadjuster,  reached  out  to  him  and  told  him  Dr.  Smith  had  released  him  to  light  duty  work. He \nadmitted  he  knew  the  school  district  had  always  previously  returned  him  to  work  within  the \nrestrictions placed upon him by his doctors. He testified that after learning of this release from Ms. \nThompson, he said “that was fine” and he “had no arguments” with it, the release. On redirect-\nexamination the claimant testified that when he spoke with Misty Thompson, she said, “if I was \ngoing back to work, did they have a place for me, and she said ‘yes.’ That’s all I was told.” He \n\nPorter R. Sims, AWCC No. G904931 \n \n \n \n9 \ntestified, “All she told me is the school said they had a place for me if I was going back to work.” \n(RT 85-109). The claimant testified on re-direct examination that his left shoulder was still hurting, \nthat he was in pain at the time of the hearing, and the pain limited his activities, the things he was \nable to do. (RT 51-52).   \nDISCUSSION \nThe Burden of Proof \n When deciding any issue, the ALJ and the Commission shall determine, on the basis of the \nrecord  as  a  whole,  whether  the  party  having  the  burden  of  proof  has  established  it  by  a \npreponderance of the evidence. Ark. Code Ann. § 11-9-704(c)(2) (2023 Lexis Replacement). The \nclaimant has the burden of proving by a preponderance of the evidence he is entitled to benefits. \nStone v. Patel, 26 Ark. App. 54, 759 S.W.2d 579 (Ark. App. 1998). Ark. Code Ann. Section 11-\n9-704(c)(3) (2023 Lexis Repl.) states that the ALJ, the Commission, and the courts “shall strictly \nconstrue” the Act, which also requires them to read and construe the Act in its entirety, and to \nharmonize its provisions when necessary. Farmers Coop. v. Biles, 77 Ark. App. 1, 69 S.W.2d 899 \n(Ark.  App.  2002).  In  determining  whether  the  claimant  has  met  his  burden  of  proof,  the \nCommission is required to weigh the evidence impartially without giving the benefit of the doubt \nto either party. Ark. Code Ann. § 11-9-704(c)(4) (2023 Lexis Repl.); Gencorp Polymer Products \nv. Landers, 36 Ark. App. 190, 820 S.W.2d 475 (Ark. App. 1991); Fowler v. McHenry, 22 Ark. \nApp. 196, 737 S.W.2d 633 (Ark. App. 1987).  \n \n\nPorter R. Sims, AWCC No. G904931 \n \n \n \n10 \n All claims for workers’ compensation benefits must be based on proof. Speculation and \nconjecture, even if plausible, cannot take the place of proof. Ark. Dep’t of Corrections v. Glover, \n35 Ark. App. 32, 812 S.W.2d 692 (Ark. App. 1991); Dena Constr. Co. v. Herndon, 264 Ark. \n791, 595 S.W.2d 155 (1979). It is the Commission’s exclusive responsibility to determine the \ncredibility of the witnesses and the weight to give their testimony. Whaley v. Hardees, 51 Ark. \nApp. 116, 912 S.W.2d 14 (Ark. App. 1995). The Commission is not required to believe either a \nclaimant’s or any other witness’s testimony, but may accept and translate into findings of fact \nthose portions of the testimony it deems believable. McClain v. Texaco, Inc., 29 Ark. App. 218, \n780 S.W.2d 34 (Ark. App. 1989); Farmers Coop. v. Biles, supra.  \n The Commission has the duty to weigh the medical evidence just as it does any other \nevidence, and its resolution of the medical evidence has the force and effect of a jury verdict. \nWilliams v. Pro Staff Temps., 336 Ark. 510, 988 S.W.2d 1 (1999). It is within the Commission’s \nprovince to weigh the totality of the medical evidence and to determine what evidence is most \ncredible given the totality of the credible evidence of record. Minnesota Mining & Mfg’ing v. \nBaker, 337 Ark. 94, 989 S.W.2d 151 (1999). \n As  always,  both  attorneys  did  an  excellent  job  zealously  representing  their  respective \nclients and presenting their respective cases at the subject hearing – both of which resulted in a \ncomplete  record  that  was  most  helpful  to  this  ALJ  in  examining  the  relevant  evidence  and \nrendering  the  opinion  herein.  Consequently,  based  on  the  aforementioned  law  as  applied  to  the \nfacts  of  this  case,  and  the  totality  of  the  credible  evidence  of  record – both  testimonial  and \ndocumentary – I  am  compelled  to  find  the  claimant  has  failed  to  meet  his  burden  of  proof  in \n\nPorter R. Sims, AWCC No. G904931 \n \n \n \n11 \ndemonstrating he is entitled to additional TTD benefits from August 31, 2022, through a date yet \nto be determined; and he failed to prove he is entitled to additional medical treatment for his left \nshoulder at the respondents’ expense for the reasons set forth in more detail, infra. \n1. The claimant has failed to meet his burden of proof that he remained with his healing \nperiod and was totally incapacitated from earning wages after August 31, 2022, the \ndate his treating orthopedic surgeon, Dr. Smith, released him to return to light duty \nwork, which the respondents made available to him. \n \nIn Lybyer v. Springdale School District, 2019 Ark. App. 77, 568 S.W.3d 805 (Ark. App. \n2019), the Arkansas Court of Appeals held that a voluntary resignation is tantamount to a refusal \nof employment. The claimant in Lybyer sustained a compensable injury on June 22, 2015. Lybyer \nwas returned to work on “very light duty.” After being called to the office for leaving early and \ntaking long breaks, the claimant was caught on camera attempting to cover a surveillance camera \nwith  tape. Thereafter,  the Lybyer claimant  voluntarily  resigned  her  employment. Since she  was \nstill within her healing period, the claimant in Lybyer made a claim for additional TTD benefits.   \nThe school district denied this request for additional TTD benefits pursuant to Ark. Code Ann. § \n11-9-526 based  on  the  fact  the claimant  chose  to  voluntarily  resign  rather  than  face  firing  or \ntermination. The  court of  appeals in Lybyer noted  that  termination  of  employment  based  upon \nmisconduct  is  not  a  refusal  to  return  to  work  under Ark.  Code  Ann. §  11-9-526  such  that  an \nemployee is disqualified from benefits. See, Tyson Poultry, Inc. v. Narvaiz, 2012 Ark. App. 118, \n388  S.W.3d  16 (Ark.  App. 2012).  The  court  then  found  as  a  matter  of  law that a  voluntary \nresignation  is  a  refusal  of  employment which  bars  a  claimant  from  receiving additional  TTD \nbenefits. \n    \n\nPorter R. Sims, AWCC No. G904931 \n \n \n \n12 \nIn  the  case  at  bar, it  is  undisputed  the  claimant  voluntarily  retired  because  of  personal \nreasons on June 30, 2022. Moreover, the evidence demonstrates the school district had a practice \nof accommodating the claimant (and others) by providing them light/sedentary work each time he \nwas released  to  work  light  duty. The  claimant  admitted Ms. Misty  Thompson  advised  him the \nschool district had work available within his restriction when she reached out to tell him about the \nAugust 31, 2022, light/sedentary work release, the claimant already had voluntarily chosen to retire \nand begin drawing retirement benefits. This voluntary retirement is a declaration of the claimant’s \nrefusal  to  return  to suitable  employment  within  his work  restrictions. Therefore,  as in Lybyer,  \nsupra, the claimant cannot now credibly claim the respondents did not make him a bona fide offer \nof employment wherein he would be able to draw the entire amount of his salary. Consequently, \nthe preponderance of the evidence proves the claimant is not entitled to additional TTD benefits \nfrom  August  31,  2022,  through  a  date  yet  to  be  determined. Indeed,  the  claimant  admitted  he \nunderstood  Ms.  Misty  Thompson  was  offering  him  the  opportunity  to  come  back  to  work  if  he \nchose to do so; however, he had already retired his employment – voluntarily left his job – on June \n30, 2022. \nLikewise  in Redd  v.  Blytheville  School  District,  2014  Ark.  App.  575,  446  W.W.3d  643 \n(Ark. App. 2014), the evidence revealed that had the claimant not retired at age 62, the respondents \nhad work within the claimant’s physical restrictions that was made and remained available to the \nclaimant. Just as in Redd, here the claimant testified the school district had allowed him to return \nto  light duty work  in  the  past, and  made what  he  referred  to  as, “make work” available to him \nwithin his restrictions which allowed him to draw the full amount of his salary. Moreover, as in \n\nPorter R. Sims, AWCC No. G904931 \n \n \n \n13 \nRedd,  the  evidence  reveals the  claimant herein was  always  provided  job  duties  within  his light \nduty restrictions which were made available to him, but he had already voluntarily chosen to retire \nat the age of 67 for personal reasons and begin drawing his retirement benefits. Therefore, pursuant \nto  both Lybyer and Redd,  supra, the claimant’s voluntary retirement prevents  him  from  any \nentitlement  to  additional  TTD benefits. It  is  abundantly  clear  from  the  evidence  of  record  the \nclaimant was not totally incapacitated from working when he was released to light duty work on \nAugust 31, 2022.    \n2. The claimant sustained an independent intervening cause injury to his left shoulder \nin September  of  2022.  Therefore,  he has  failed  to  meet  his  burden  of  proof  in \ndemonstrating he is entitled to additional medical treatment at the respondents’ \nexpense after the date of this independent intervening cause injury. \n \nIn  a  workers’  compensation  case,  the  claimant  has  the  burden  of  proving  by  a \npreponderance of the evidence that his claim is compensable, ie., that his injury was the result of \nan accident that arose in the course of his employment and that it grew out of or resulted from the \nemployment. Ringier  American  v.  Combs,  41  Ark.  App.  47,  849  S.W.2d  1  (Ark.  App. 1993); \nCarman v. Haworth, Inc., 74 Ark. App. 55, 455  S.W.3d 408 (Ark.  App. 2001). In addition, the \nclaimant  must  prove  a  causal  connection  between  the  work-related  accident and  his  alleged \ndisability. Bates v. Frost Logging Co., 38 Ark. App. 36, 827 S.W.2d 664 (Ark. App. 1992). Plainly \nstated,  the claimant  must demonstrate  by  a  preponderance  of  the  evidence  there  exists a  causal \nrelationship between his current condition and his employment. Harris Cattle Co. V. Parker, 256 \nArk. 166, 506 S.W.2d 118 (1974). \n \n\nPorter R. Sims, AWCC No. G904931 \n \n \n \n14 \nAs the respondents note in their post-hearing brief, there exists no presumption an injury \nis compensable. O.K. Processing, Inc. v. Servold, 265 Ark. 352, 578 S.W.2d 224 (1979). The party \nhaving the burden of proof on the issue must establish it by a preponderance of the evidence. Ark. \nCode  Ann..  § 11-9-704©(2)(2023  Lexis Replacement). In  determining  whether  a  claimant  has \nsustained his or her burden of proof, the Commission shall weigh the evidence impartially, without \ngiving  the  benefit  of  the  doubt  to  either  party. Ark.  Code  Ann. §  11-9-704; Wade  v.  Mr.  C. \nCavenaugh’s, 298 Ark. 363, 768 S.W.2d 521 (1989); and Fowler v. McHenry, 22 Ark. App. 196, \n737 S.W.2d 663 (Ark. App. 1987). \nIn Maverick Transp. v. Buzzard, 69 Ark. App. 128, 10 S.W.3d 467 (Ark. App. 2000), our \ncourt of appeals discussed the difference between an “aggravation” and a “recurrence”: \nAn aggravation is a new injury resulting from an independent incident. Farmland \nIns. Co. v. DuBois, 54 Ark. App. 141, 923 S.W.2d 883 (1996). A recurrence is not \na new injury but merely another period of incapacitation resulting from a previous \ninjury. Atkins Nursing Home v. Gray, 54 Ark. App. 125, 923 S.W.2d 897 (1996).   \nA  recurrence  exists  when  the  second  complication  is  a  natural  and  probable \nconsequence of a prior injury. Weldon v. Pierce Bros. Constr., 54 Ark. App. 344, \n925 S.W.2d 179 (1996). Only where it is found that a second episode has resulted \nfrom an independent intervening cause is liability imposed upon the second carrier. \n \nThe  test  to  determine  whether  a separate  incident  that  occurs  after  the  work  injury is  a \nrecurrence or an aggravation is whether the subsequent incident was a natural and probable result \nof the first injury, or if it was precipitated by an independent intervening cause. Bearden Lumber \nCo. v. Bond, 7 Ark. App. 65, 644 S.W.2d 321 (Ark. App. 1983). Even if there is a causal connection \nbetween the initial incident/injury and disability, there is no independent intervening cause unless \nthe subsequent disability is triggered by activity on the part of the claimant which is unreasonable \nunder the circumstances. Davis v. Old Dominion Freight Line, Inc. 341 Ark. 751, 20 S.W.3d 326 \n\nPorter R. Sims, AWCC No. G904931 \n \n \n \n15 \n(Ark. App. 2000); Georgia-Pacific Corp. v. Carter, 62 Ark. App. 162, 969 S.W.2d 677 (Ark. App. \n1998); Guidry v. J & R Eads Const. Co., 11 Ark. App. 219, 669 S.W.2d 483 (1984). \nConcerning  the  proof  required  to  demonstrate  a  new  injury  or  aggravation  our  appellate \ncourts have consistently held that since an aggravation is a new injury, it must be proved by new \nobjective  evidence  of  a  new  injury  different  than  the  preexisting  condition. Vaughn  v.  Midland \nSchool Dist., 2012 Ark. App. 344, at 2-3 (Ark. App. 2012) (citing Barber v. Pork Grp., Inc., 2012 \nArk. App. 138 (Ark. App. 2012); Grothaus v. Vista Health, LLC, 2011 Ark. App. 130, 382 S.W.3d \n1 (Ark. App. 2011); Mooney v. AT & T, 2010 Ark. App. 600, 378 S.W.3d 162 (Ark. App. 2010). \nWhere the only objective findings present are consistent with prior objective findings or consistent \nwith  a  long-term  degenerative  condition  rather  than  an  acute  injury,  this  does  not  satisfy  the \nobjective findings requirement for  a compensable aggravation of  a preexisting condition injury. \nVaughn, 2012 Ark. App. 344, at 6 (holding that Arkansas courts have interpreted the Act to require \n“new objective medical findings to establish a new injury when the claimant seeks benefits for the \naggravation of a preexisting condition”); Barber v. Pork Grp., Inc., 2012 Ark. App. 138, at 6 (Ark. \nApp. 2012) (affirming the Commission’s denial of an aggravation of a preexisting condition claim \nwhere the MRI findings revealed a degenerative condition, with no evidence of, and which could \nnot be explained by, an acute injury). In Mooney, 2010 Ark. App. 600 at 4-6, 378 S.W.3d at 165-\n66 (Ark. App. 2010), the court affirmed the Commission’s decision denying a back injury claim \nwhere the objective evidence of an injury - including muscle spasms, positive EMG test results, \nand  spinal  stenosis  revealed  on  an  MRI - were  all  present  both  before  and  after  the  date  of  the \nalleged aggravation injury.  \n\nPorter R. Sims, AWCC No. G904931 \n \n \n \n16 \nConsequently, in this case the claimant must prove a causal relationship exists between his \nemployment and his compensable injury, and his condition after the September 2022 carburetor \nincident. Wal-Mart Stores, Inc. v. Westbrook, 77 Ark. App. 167, 171, 72 S.W.3d 889, 892 (Ark. \nApp. 2002) (citing McMillan v. U.S. Motors, 59 Ark. App. 85, 90, 953 S.w.2d 907, 909 (Ark. App. \n1997)). Objective medical evidence is not essential to establish a causal relationship between the \nwork-related accident and the injury where objective medical evidence establishes the existence \nand extent of the injury, and a preponderance of other nonmedical evidence establishes a causal \nrelationship  between  the  objective  injury  and  the  work-related  incident. Flynn  v.  Southwest \nCatering Co., 2010 Ark. App. 766, 379 S.W.3d 670 (Ark. App. 2010). “Objective findings” are \nthose findings which cannot come under the voluntary control of the patient. Ark. Code Ann. § \n11-9-102(16)(A); Long v. Wal-Mart Stores, Inc., 98 Ark. App. 70, at 80 250 S.W.3d 263, at 272 \n(Ark. App. 2007). Objective findings “specifically exclude pain, straight-leg-raising  tests,  and \nrange-of-motion tests.” Burks v. RIC, Inc., 2010 Ark. App. 862, at 3 (Ark. App. 2010). \nThe respondents acknowledge that the claimant sustained a compensable injury to his left \nshoulder in 2019 for which they paid medical and indemnity benefits; however, the contend herein \nthat the claimant sustained a new injury to his left shoulder, or an aggravation of his preexisting \nleft shoulder condition in September 2022 after Dr. Joel Smith released him to return to light duty \nwork duty on August 31, 2022. At the August 31, 2022, examination Dr. Smith noted the following \nfindings in the claimant’s left shoulder: \nForward Flexion 180 degrees \nAbduction   110 degrees \nExternal Rotation  65 degrees \nInternal Rotation PSIS \n\nPorter R. Sims, AWCC No. G904931 \n \n \n \n17 \n \nThe claimant has undergone two (2) prior surgeries on his left shoulder. After each of those \nprocedures, his first light duty restrictions always consisted of no use of the left arm. Consequently, \nit is now disingenuous of the claimant to now contend he did not know the full extent of the light \nduty restrictions placed upon him by Dr. Smith as of August 31, 2022, he was aware that following \nhis  previous  surgeries  these  restrictions  always  included  no  use  of  the  left  arm.  Despite  being \nadvised  that  he  was  released  to  light  duty,  the  claimant  proceeded  to  help  his  son  change  a \ncarburetor on the Saturday prior to his follow up appointment with Dr. Smith on September 27, \n2022. The claimant advised Dr. Smith at that visit that while helping his son change a carburetor \nand while holding a wrench, his left shoulder popped, and “pain has increased since then.”   \nUnlike any previously reported incident of his left shoulder popping, this time whatever activity \nthe claimant was performing was unlike any other activity that caused his shoulder to pop as this \ntime, unlike the previous times, the pain from the pop never went away but continued to increase \never since. Accordingly, there is a clear specific incident on that Saturday that caused a new and \nprolonged increase in the claimant’s left shoulder pain.    At that office visit, Dr. Smith noted  a \ndecrease in the claimant’s active range of motion. Specifically, Dr. Smith noted: \nForward Flexion: with pain and 170 degrees \nAbduction:  with pain and 100 degrees \nExternal Rotation: with pain and 60 degrees \nInternal Rotation: with pain and buttocks \n \nAs the respondents acknowledge in their post-hearing brief, active range of motion (ROM) \nis a subjective finding of new pain and symptoms in the claimant’s left shoulder. \n  \n\nPorter R. Sims, AWCC No. G904931 \n \n \n \n18 \nBut, significantly, in addition to these subjective findings Dr. Theodore Hronas, a board \ncertified radiologist with the American Board of Radiology who the respondents’ asked to review \nthe claimant’s 3/10/2022 surgical record/operative report, as well as two (2) objective diagnostic \nMRI arthrograms, one (1) of which was performed on 12/23/2021, before the alleged September \n2022 new injury, and the most recent of which was performed on 11/23/2022, after the alleged \nSeptember 2022 new injury. In his written report dated March 15, 2023, Dr. Hronas explained in \nsome  detail the  differences  between these  two  (2)  objectives diagnostic  tests.  (RX2  at  26-27). \nConcerning the 12/23/2021 MRI arthrogram, Dr. Hronas noted:  \n...susceptibility artifact within the humeral head related to metallic bone anchors \nsecondary to prior rotator cuff tear. There is a small 2 mm region of contrast signal \ninvolving the undersurface of the supraspinatus tendon characteristic of a grade II \narticular  surface  tear.  The  infraspinatus  and  teres  minor  muscles  and  tendons  are \nnormal.   There   is   abnormal   contrast   traversing   the   superior   margin   of   the \nsubscapularis  characteristic  of  a  full  thickness  tear  creating  a  defect  within  the \nadjacent  rotator  cuff  interval,  with  contrast  from  the  joint  space  communicating \ndirectly  with  the  subacrominal/subdeltoid  bursa.  There  is  glenohumeral  joint \narthritis. The long head of the biceps tendon is not seen within the bicipital groove. \n \n(RX2 at 26).   \n \n Dr.  Hronas further noted the  claimant  underwent  surgery on  3/10/2022 following  the \naforementioned   12/23/2021 diagnostic   test   which   included   an   arthroscopic   repair   of   the \nsubscapularis, a mini open biceps tenodesis, and a humeral head chondroplasty with glenoid and \nlabral debridement.  \n     In  describing  the  MRI  arthrogram  findings  from 11/23/2022 – performed  some  nine  (9) \nmonths after the March 2022 surgery, and only three (3) months after the occurrence of and the \nclaimant’s report to his doctor concerning September 24, 2022, alleged new injury, Dr.  Hronas \n\nPorter R. Sims, AWCC No. G904931 \n \n \n \n19 \nnoted the November 2022 objective diagnostic study (which he mistakenly refers to as having been \nperformed on “12/23/2022”) revealed: \n...susceptibility  artifact  to  bone  anchors  used  in  repair oo  the  supraspinatus  and \nsubscapularis  tendons.  A  previously  seen  small  articular  surface  tear  of  the \nsupraspinatus has resolved. There is extensive high grade partial articular surface \ntear  of  the  midsubstance  of  the  subscapularis  tendon  with  abnormal  contrast \noccupying  the  rotator  interval  characteristic  of  complete  tear  of  the  superior \nglenohumeral ligament and rotator interval capsule. The coracohumeral ligament \nis intact. The infraspinatus and teres minor muscles and tendons are normal. The \nlong head of the biceps tendon is not visualized consistent with tenodesis. There is \nagain circumferential labral tearing and detachment.  \n \n(RX2 at 26) (Emphasis added). \n \n       Dr. Hronas went on to summarize and explain the significance of the differences between \nthese  two  (2)  objectives diagnostic  test  results.  He  stated the most  recent 11/23/2022 MRI \narthrogram showed findings of a successful repair of the supraspinatus tendon. However, he further \nnoted  that  this same  11/23/2022 MRI  arthrogram, “shows a progressive high grade articular \nsurface tear of the subscapularis tendon with a complete tear of the adjacent rotator interval capsule \nand likely the superior glenohumeral ligament.” (RX2 at 27). He goes on to point out that these \nfindings  were not  present  in  the 12/23/2021 MRI  arthrogram, nor did the claimant’s treating \northopedic  surgeon, Dr.  Joel  Smith,  note  them  in  his  3/10/2022 operative  report  from  the \nclaimant’s third left shoulder surgery. The obvious differences Dr. Hronas identifies and explains \nabove  provide significant  objective  medical  evidence  of  a  new  injury  to  the  claimant’s  left \nshoulder,  or at  least the aggravation of the claimant’s preexisting left shoulder condition as it \nexisted after the date of both his compensable injury in 2021, and his third surgery in March of \n2022. Since  the  claimant  had  not  worked  after  his  March  2022  third  left  shoulder  surgery,  it  is \n\nPorter R. Sims, AWCC No. G904931 \n \n \n \n20 \nhighly likely and more probable than not that the condition of the claimant’s left shoulder as seen \nin  the  11/23/2022  MRI  arthrogram  was  caused  by  the  independent  intervening  incident  the \nclaimant sustained  and  reported to Dr. Smith in September 2022 – after  his healing period had \nended and Dr. Smith had released him to light duty work on  August 31,  2022. In  addition, as  a \nboard-certified radiologist of the American Board of Radiology Dr. Hronas’s report – especially \nin the total absence of any evidence, medical or otherwise, rebutting or contradicting Dr. Hronas’s \nfindings – are entitled to significant weight based on the facts of this case. \nThe  credible  evidence  of  record demonstrates  the  presence  of  new  objective  medical \nfindings  resulting  from  the  carburetor-repair incident  in  September  2022  after  the  claimant  had \nbeen released to light duty of no use of his left arm. The claimant tries to downplay this incident \nby claiming he did not do anything but hold a wrench. However, again as the respondents’ point \nout in their post-hearing brief, the claimant’s testimony is considered disputed as a matter of law. \nUncorroborated testimony of an interested party is always considered to be controverted. This rule \nof  law also  applies  to  a  non-party  witness  whose  testimony  might  be  biased. Burnett  v. \nPhiladelphia Life Insurance Co., 81 Ark. App. 300, 101 S.W.3d 843 (Ark. App. 2003). It is not \narbitrary for a fact finder to discredit and disregard such testimony. Id.; see also, Sykes v. Carmack, \n211 Ark. 828, 202 S.W.2d 761 (1947). The testimony of an interested party is taken as disputed as \na  matter  of  law  whether  offered  on  his  own  behalf  or  on  the  behalf  of  another  interested  party. \nKnoles v. Salazar, 298 Ark. 281, 766 S.W.2d 613 (1989).  \nThe claimant denied in his deposition having worked on his truck since his third surgery in \nMarch 2022; however, when presented with the physical therapy notes indicating he worked on \n\nPorter R. Sims, AWCC No. G904931 \n \n \n \n21 \nhis truck for three hours in June of 2022, he could no longer continue to deny having worked on \nhis  truck  after his most  recent  shoulder  surgery.  Likewise,  at  the  hearing  the  claimant  denied \nhaving  raked  his  yard  after  his  third  surgery.  But  again,  the  physical  therapy  records  show  he \nreported  pain  in  his  shoulder  from  raking  leaves  in  July  2022. It  is  patently  clear the  claimant \ndenied performing any work which might injury or harm his left shoulder such as working on his \ntruck or raking leaves when other evidence directly contradicted the claimant’s testimony in this \nregard.  Similarly,  there exists no credible evidence to support the claimant’s own  self-serving, \nuncorroborated testimony  that  he  did  not  sustain  a  new  injury  or  aggravation  while  performing \nwork on the carburetor in September 2022. \nThe preponderance  of  the medical  evidence  reveals  that  prior  to  the  new  injury  or  aggravation \nfrom changing  a carburetor the claimant had a successful  repair of the supraspinatus tendon. After this \nincident, the MRI arthrogram revealed “a progressive high grade articular surface tear of the subscapularis \ntendon with a complete tear of the adjacent rotator interval capsule and likely the superior glenohumeral \nligament.” (RX2 at 26-27). This is a new objective finding that supports respondent’s contention that the \nclaimant  sustained  a  new  injury  or  aggravation  in  September  of  2022.  There  is grossly  insufficient \nevidence these new findings are the natural and probable result of the compensable injury. Indeed, these \nnew objective findings provide  unrebutted  objective  medical  evidence  the  new  findings  are  in  fact not \ncausally related to the claimant’s original compensable injury. These objective findings were not present \nin the first MRI arthrogram nor were they noted in Dr. Smith’s operative report. (Moreover, it is interesting \nto note the claimant’s own subjective reports of increased severity of pain, a different type of pain, and \ndecreased active ROM support the new objective findings Dr. Hronas mentions in his report.) \n\nPorter R. Sims, AWCC No. G904931 \n \n \n \n22 \nAccordingly,  the  only reasonable conclusion a  fair-minded  fact-finder  can  draw  from the \npreponderance of the credible evidence of record is that the claimant sustained a new injury or aggravation \nin  September  2022 that  is  not  causally  related  to  his  original  left  shoulder  injury  from  2019. To  find \notherwise would constitute sheer speculation and conjecture, which cannot support a claim for benefits \npursuant  to  the  Act. See,  Dena,  supra. This  new  injury  or  aggravation  is  supported  by  new  objective \nmedical findings, again, as Dr. Hronas credibly explains without rebuttal or contradiction. Consequently, \nfor all the aforementioned reasons I hereby make the following: \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n1. The Commission has jurisdiction over this claim. \n \n2. The claimant has failed to meet his burden of proof in demonstrating he is entitled \nto  any  additional  TTD  benefits  after  August  31,  2022 – the  date  his  treating \northopedic surgeon, Dr. Smith, released him to light duty – through a date yet to be \ndetermined since:  (a) The  preponderance  of  the evidence reveals the claimant’s \nhealing period ended as of August 31, 2022, when Dr. Smith released him to light \nduty  work since  the  claimant  clearly  was  not  totally incapacitated  from  earning \nwages; (b)  The preponderance  of  the  evidence  reveals  the respondents  made the \nclaimant a bona fide job offer after Dr. Smith released him to light duty work as of \nAugust  31,  2022, that  fit  within  his single  physical restriction, but  the  claimant \nadmittedly refused the job offer, never attempted to perform the light duty job, and \nhad in fact voluntarily retired as of June 30, 2022.  \n \n3. The preponderance  of  the  evidence  demonstrates  the  claimant  sustained  a new \ninjury  or  aggravation  supported  by  new  objective  medical  findings in  September \n2022; therefore, he has failed to meet his burden of proof in demonstrating he is \nentitled to additional medical treatment at the respondents’ expense after the date \nthey last paid his medical expenses in late September 2022. \n \n4. The claimant’s attorney is not entitled to a fee on these facts. \n\nPorter R. Sims, AWCC No. G904931 \n \n \n \n23 \n      Therefore, for all the aforementioned reasons, this claim is hereby respectfully denied and \ndismissed subject, of course, to the claimant’s statutory appeal rights. \n      IT IS SO ORDERED. \n                                              \n \nMike Pickens \nAdministrative Law Judge \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \nMP/mp \n \n \n \n\nPorter R. Sims, AWCC No. G904931 \n \n \n \n24","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. G904931 PORTER R. SIMS, EMPLOYEE CLAIMANT BRYANT SCHOOL DISTRICT, EMPLOYER RESPONDENT ARK. SCHOOL BOARD ASS’N WORKERS’ COMPENSATION TRUST/ ARK. SCHOOL BOARD ASS’N, RESPONDENT INSURANCE CARRIER/TPA OPINION AND ORDER FILED OCTOBER 24, 2023 Hearing conducted o...","fetched_at":"2026-05-19T23:01:59.937Z","links":{"html":"/opinions/alj-G904931-2023-10-24","pdf":"https://labor.arkansas.gov/wp-content/uploads/SIMS_PORTER_G904931_20231024.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}