{"id":"alj-G907485-2023-08-07","awcc_number":"G907485","decision_date":"2023-08-07","opinion_type":"alj","claimant_name":"Kenneth Evans","employer_name":"Forest Heights Stem Academy","title":"EVANS VS. FOREST HEIGHTS STEM ACADEMY AWCC# G907485 AUGUST 7, 2023","outcome":"denied","outcome_keywords":["dismissed:1","granted:2","denied:3"],"injury_keywords":["back","shoulder"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/EVANS_KENNETH_G907485_20230807.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"EVANS_KENNETH_G907485_20230807.pdf","text_length":17437,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nAWCC FILE No G907485 \n \nKENNETH EVANS, EMPLOYEE       CLAIMANT \n \nFOREST HEIGHTS STEM ACADEMY, EMPLOYER        RESPONDENT \n \nARKANSAS SCHOOL BOARDS ASSOCIATION,            \nCARRIER/TPA                   RESPONDENT \n \n \nOPINION FILED 7 AUGUST 2023 \n \n \nOn  hearing  before Arkansas Workers’ Compensation Commission (AWCC) Administrative \nLaw Judge JayO. Howe, 8 February 2023, Little Rock, Pulaski County, Arkansas. \n \nMs. Laura Beth York, Attorney-at-Law of Little Rock, Arkansas, appeared for the claimant. \n \nMs. Melissa Wood, Attorney-at-Law of Little Rock, Arkansas, appeared for the respondents. \n \nI.  STATEMENT OF THE CASE \n \nThe above-captioned case was heard on 8 February 2023 in Little Rock, Arkansas, after \nthe  parties  participated  in  a  prehearing  telephone  conference  on  29  November  2022.  \nA Prehearing Order, admitted to the record without objection as “Commission’s Exhibit No \n1,” was  entered  on that  same  day. The  Order  stated  the following ISSUES  TO  BE \nLITIGATED: \n1.   Whether  the  claimant is  permanently  and  totally  disabled  or,  in  the  alternative, \nentitled to wage loss disability benefits. \n2.  Whether the claimant is entitled to a controverted attorney’s fee. \nAll other issues were reserved. \nThat Order also set forth the following STIPULATIONS: \n1.  The AWCC has jurisdiction over this claim. \n\nK. EVANS- G907485  \n2 \n \n2.  An employee/employer/carrier relationship existed on 9 October 2019 and at all other \ntimes relevant to this claim. \n3.  The respondents accepted this claim as compensable and paid medical and indemnity \nbenefits,  including  permanent  partial  disability  benefits  pursuant  to  an  impairment \nrating  of  twenty  percent  (20%)  to  the  body  as  a  whole,  as  assigned  by  Dr.  Shahryar \nAhmadi. \n4.  The parties will stipulate to the claimant’s average weekly wage. \nTwo (2)  WITNESSES provided sworn testimony—the claimant spoke on his own behalf \nand the respondents called Mr. Ronald Self, an employee for the Little Rock School District. \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \nHaving reviewed the record as a whole and having heard testimony from the witnesses, \nobserving their demeanor, I make the following findings of fact and conclusions of law under \nArk. Code Ann. § 11-9-704: \n1. The AWCC has jurisdiction over this claim. \n2. The previously noted stipulations are accepted as fact. \n3. The claimant failed to prove, by a preponderance of evidence, that he is entitled to any \nadditional benefits. \n4. Consistent with the above, the claimant’s attorney is not entitled to a fee. \nIII.  HEARING TESTIMONY and MEDICAL EVIDENCE                                                                                                        \nA. Claimant on Direct-Examination by Ms. York: \nClaimant, Kenneth Evans, is a  68-year-old male who graduated high school in 1972 \nand first worked a job hanging steel.  He left that industry for retail work for about five (5) \nyears,  eventually  becoming  an  assistant  store  manager  for  K-Mart.  Mr.  Evans  then  sold \ninsurance for Prudential for a time.  He performed other jobs over time, before beginning a \njob at Lowe’s Home Improvement, where he moved up the ranks over his thirteen (13) years \n\nK. EVANS- G907485  \n3 \n \nof  employment,  eventually  becoming  an  assistant  store  manager.  [TR  at  11-15] After \nsuffering a back injury that brought some work restrictions, the claimant’s responsibilities \nchanged and he ultimately left employment at Lowe’s. [TR at 16]   \nThe  claimant  then  worked  as  a  substitute  teacher  at  Watson  Chapel  School.  He \napplied  for  and  was  approved for  Social  Security  Disability  related to  the  back  injury,  but \nwas still able to work.  Mr. Evans completed his degree around that time, earning a bachelor’s \ndegree  in  industrial  technology  from  the  University  of  Arkansas  at  Pine  Bluff  in  2009. \n[TR at 17]  He then began working as a paraprofessional for the Pine Bluff School District. \n[TR at 19] His work responsibilities changed over time from assisting teachers with general \nclassroom  work   to   helping  particular   students, one-on-one.  Mr.  Evans  worked   as   a \nparaprofessional with special needs children for about fifteen (15) years. [TR at 20] He also \noperated an ice cream truck on the side at some point during this time. [TR at 21] \nMr.  Evans  eventually  moved  to  Little  Rock  and  sought  work  with  the  Little  Rock \nSchool District, where he was hired as a paraprofessional at Don Roberts Elementary School. \nHe was tasked with providing one-on-one assistance to a particular student. [TR at 22] As \nthat  student  progressed  through  school,  the  claimant  moved  along  also, following  him  to \nForest Heights STEM Academy.  \nOn  9  October  2019,  the  claimant  was  assisting other  staff in preparing for the \nend-of-day  student  pickups.  [TR  at  24.]  He  described  how  they  put  out  traffic  cones  and \ndirected vehicles in an orderly manner. Mr. Evans noticed that one vehicle was, essentially, \nnot minding the traffic control rules.  He attempted to get the vehicle to stop, when it ran \nover a traffic cone and a side mirror struck Mr. Evans’ shoulder. [TR at 24]  Evans managed \nto keep his feet, and the vehicle moved on down the line. [TR at 25] \nAccording  to  the  claimant,  he was  on  his way  to  report  the  incident  to  an  assistant \nprincipal when the driver “got out of his truck, straightened his mirror up, and then, walked \n\nK. EVANS- G907485  \n4 \n \nover to me and said, ‘Don’t you ever hit my truck again,’ and swung at me, which I moved \nback and didn’t allow him to hit me.” [TR at 25]  Security apparently arrived and separated \nthe two (2) before any further scuffling went on, and Mr. Evans reported to the school nurse \nthat  he  thought  he  would  be  okay.  [TR  at  26]  The  claimant  was  in  increasing  pain  after \ngetting home and eventually presented to the emergency department.  \nMr.  Evans  stated  that  his  injury  was  initially  accepted  as  compensable  by  the \nrespondents. Id.  After  an MRI in  early  November, he  was  scheduled  for surgery  with  Dr. \nSchock on 14 November 2019.  According to Mr. Evans, the procedure with Dr. Schock did \nnot provide relief. [TR at 27] He disputed the accuracy of Dr. Schock’s release with a zero \npercent  (0%) impairment  rating  on  2  April  2020.  After  a  change  of  physician  request,  the \nclaimant saw Dr. Ahmadi at UAMS, who ordered another MRI. Id.  \nThe  claimant  testified  that  the  MRI  revealed  that  the  earlier  surgery  failed.  Dr. \nAhmadi recommended a reverse arthroplasty, and that procedure was performed in August \n2020. [TR at 28]  Mr. Evans explained that Dr. Ahmadi’s notes first reflected his report of a \nshoulder  dislocation  on  27  October  2020.  The  first  dislocation  occurred,  according  to  the \nclaimant,  when  he  was  sweeping  the  floor  in  his  home.  Sweeping  was  not  outside  of  any \nphysician-ordered activity restrictions. Id. He was able to move the shoulder back into socket \non his own. [TR at 29] \nDr. Ahmadi eventually found the claimant to be at maximum medical improvement \n(MMI) on 8 December 2020. He assigned a twenty percent (20%) impairment rating to the \nbody as a whole and a permanent restriction of no lifting over twenty-five (25) pounds. Id. \nThe claimant continued to treat subsequent to additional dislocations. \nDr. Ahmadi left UAMS at some point and the claimant underwent a revision surgery \nperformed by Dr. Rabinowitz on 29 November 2021. [TR at 30]  Mr. Evans said that he did \nnot recall Dr. Rabinowitz releasing him without restrictions on 12 July 2022, see Resp. Exh. \n\nK. EVANS- G907485  \n5 \n \nNo 1 at 10, but agreed that the doctor ordered a functional capacity evaluation (FCE). Id. He \nwent on to state that the carrier did not approve the FCE and that Dr. Rabinowitz gave a \npermanent thirty (30) pound lifting restriction. [TR at 31] \nMr. Evans testified that between 9 October 2019, the date of the vehicle incident, and \nJuly of 2022, he was not offered any light-duty work. Id. Nor did he perform any work for the \nrespondent during that time. He explained that he had provided notice of his intent to retire \nand that his retirement would have gone into effect in the summer of 2020. [TR at 32]  \nHe  stated  that the  vehicle  incident  and  subsequent  shoulder  issues interrupted  his \nplans. He further explained that he intended to build a business in retirement performing \nhandyman  work.  According  to  the  testimony,  Mr.  Evans  has  experience  with  electrical, \nplumbing, and woodworking. “I do all of that and those items that are not – that did not have \nto be checked by local, city, to be inspected.” [TR at 33.] Installing a dishwasher or garbage \ndisposal were offered as examples of the general work he could handle. He intended to pursue \nthis work full-time in his retirement from the school district. \nMr. Evans testified that he did not perform any handyman work while he was being \ntreated for his shoulder injury. [TR at 34] Instead, he said, he did not start performing his \nhandyman  work  until  his  July  2022  release.  According  to  the  testimony,  he  is  unable  to \nperform all of the work he might have been able to perform before the shoulder injury. He \nsaid that he has had to enlist the help of others to assist in performing certain jobs because \nof his shoulder issues. \nWhen  asked  whether  he  could  pick  up  a  gallon  of  milk  out  of  the  refrigerator,  he \nresponded, “I definitely cannot do that.” [TR at 35] Regarding how his shoulder feels on any \ngiven day, Mr. Evans stated, “I still get some pain, just a sudden or sharp pain occasionally. \nIt doesn’t hurt consistently, but I have pain, I have some soreness, if I just do some things. It \ndoes get sore. Basically, that’s it, because I try just pick things up, immediately. I just know \n\nK. EVANS- G907485  \n6 \n \nnot to do a lot of things; so I won’t try.” Id. He went on to restate that some work now requires \nhiring  additional  help  when  he  could  have  handled  the  work  on  his  own  in  the  past. \n[TR at 36] \nMr. Evans then stated again that he was not offered any light-duty work during the \n2019-2020 school year. [TR at 37] He further stated that he had no communication from the \nschool district after filing, through counsel, his Prehearing Questionnaire. [TR at 38] He did, \nhowever, eventually receive a letter from the school district, dated 7 December 2022, offering \nhim light-duty work. [TR at 39] The claimant said that he thought it was odd to be offered \nwork after his retirement date. He did not respond to the letter.   \nB. Claimant on Cross-Examination by Ms. Wood: \nMr. Evans discussed his previous back injury with respondents’ counsel, saying that \nhe started receiving social security disability payments sometime in the early ‘90s. [TR at 40] \nHe  treated  for  that  injury  three (3) to  four (4) years  and  received  a  permanent  lifting \nrestriction of fifty (50) to sixty (60) pounds. [TR at 41] He confirmed that while his previous \nwork  running  an  ice  cream  truck  was  conducted  as  a  formal  business  registered  with  the \nSecretary of State’s office, his handyman work was not.  \nHe clarified that he had actually taken on some work since his shoulder injury, taking \na two-week  painting  job  and  occasionally  fixing  someone’s  faucet  or  “things like that.” \n[TR at 42]  \nAfter  his  surgery  in  2021,  no  additional  therapies  were  ordered,  though  Mr.  Evans \nhas  exercise  bands  at  his  home  and  continues  to  use  them.  He  maintains  no  additional \nprescriptions since the procedure. [TR at 43] \nRegarding work at the school, Mr. Evans explained that he “actually, did go back to \nwork in the spring semester of ’20, but COVID hit... we did have to go back to the school, but \nthere were no students; so we were considered working.” [TR at 44] \n\nK. EVANS- G907485  \n7 \n \nThe  claimant  offered  that  he  could still  work  for  the  school  district,  just  not  in  his \nprevious one-on-one roll. [TR at 46]  But he said that he had not spoken with anyone at the \nschool district about continuing work in any capacity. When asked “what’s keeping you from \nworking now, and you said, because of my prior plans meaning you meant to retire and do \nmore home repair, is that correct?” he answered, “yes.” Id.  He  confirmed  that  he  thought \nabout getting a contractor’s license and that he thought about selling cars. He also thought \nabout pursuing computer-aided drafting. \nMr. Evans stated that he spends most of his days filled with leisurely activities, such \nas golf or fishing, chores around the house, and spending time with family. [TR at 47] \nC.  Respondent Witness Ronald Self: \nMr. Ronald Self took the stand for the respondents. He explained that he is the Little \nRock  School  District’s  director  for  safety,  security,  and  risk  management.  [TR  at  49] \nOverseeing workers’ compensation matters falls within his office’s responsibility. He stated \nthat he was aware of Mr. Evans’ case. Mr. Self  confirmed that the respondents had not heard \nany  response  from  the  claimant  since  a  letter  was  sent  offering  him  a  return  to  work. \n[TR at 50] He explained that work within the claimant’s restrictions would be available and \nthat he could continue working as a paraprofessional, although the one-on-one role would be \noutside the scope of his restrictions. He went on to say that the work would pay the same as \nbefore Mr. Evans’ injury and that positions were open at the time of the hearing. [TR at 51] \n D.  Examination by the Commission: \n A brief explanation was offered to clarify some dates relating to Respondent’s Exhibit \nNo 2: \nMs.  York:    Your  Honor,  there  is  a  little  bit  of  confusion  with \nregard   to   the   dates.   We   understand   that   the   dates.   We \nunderstand  that the  Respondent  document,  Exhibit  2,  page  2, \n\nK. EVANS- G907485  \n8 \n \nand it has a date up here that says August 26, 2020, but it does \nshow that his last date of work would be June 30\nth\n, 2020. It is \nMr.   Evans   testimony   that   he,   actually,   submitted   this \npaperwork to the Little Rock School District in August of 2019, \nbefore the October 2019 injury. He was giving them notice that \nhe would work through the school year, and then, that would be \nthe end and he would retire. \nMs. Wood:  Judge, I don’t disagree with when it was first applied \nfor. I think this document, though, shows when it was approved. \nSo that would have been for August of ’20.  [TR at 52]  \nWith that, the testimony concluded, and the case was submitted.   \nV.  ADJUDICATION \n The stipulated facts, as agreed during the prehearing conference, are outlined above.   \nA.   The  Claimant  Failed  to  Prove, by  a  Preponderance  of  the Evidence, that  he Is \nEntitled to Additional Benefits \n \n There is no question in this matter as to whether the claimant suffered a compensable \ninjury. He was injured, treated, assigned an impairment rating, paid benefits consistent with \nthat  rating,  and  eventually  given  a  full  duty  release. He  claims,  however,  entitlement  to \nadditional permanent benefits and/or wage loss benefits; but the evidence presented does not \nsupport that finding. \n Permanent  total  disability  is  defined  as  the  inability,  because  of  a  compensable \ninjury, to  earn  any  meaningful  wages  in  the  same  or  other  employment.   Ark.  Code  \nAnn. § 11-9-519(e)(1). The employee must prove an inability to earn any meaningful wage. \nArk. Code Ann. § 11-9-519(e)(2).  \n\nK. EVANS- G907485  \n9 \n \n Mr. Evans was injured in the fall term of 2019 and retired at the end of the spring \nterm in 2020. He failed to present any testimony as to a physician’s finding that he was \nunable to earn any wages because of his injury. He was, in fact, released to full duty without \nrestrictions in February of 2022 before later being assigned maximum medical improvement \nand a thirty-pound, overhead lifting restriction in June of 2022.  \nEvans did not controvert the respondents’ testimony that full-time  work within  his \nrestrictions was available  to  him through  the school  district  at  the same rate  of  pay  as  he \nreceived  before  his  injury  and  chosen  retirement  date.  Nor  did  he  provide  any  proof  of  an \ninability to earn any wages after his retirement from the school district or through any other \nroute  of  employment.  He  essentially  stated  that  he  had  not  moved  forward  with  his \npost-retirement  thoughts  or  plans  for  starting  a  handyman  and  repairs  business  because \nlifting  restrictions  could  require  hiring  additional  personnel.  On  this  record  I  find  that  he \nfailed to meet his burden for additional permanent disability benefits. The record is similarly \nshort on evidence supporting an entitlement to any wage loss benefits. \n B.  Attorney’s Fee \n In accordance with the above, the claimant is not entitled to an attorney’s fee. \nVI.  ORDER \n Consistent with the findings of fact and conclusions of law set forth above, this claim \nis denied and dismissed. \nSO ORDERED. \n________________________________ \n       JAYO. HOWE \n       ADMINISTRATIVE LAW JUDGE","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION AWCC FILE No G907485 KENNETH EVANS, EMPLOYEE CLAIMANT FOREST HEIGHTS STEM ACADEMY, EMPLOYER RESPONDENT ARKANSAS SCHOOL BOARDS ASSOCIATION, CARRIER/TPA RESPONDENT OPINION FILED 7 AUGUST 2023 On hearing before Arkansas Workers’ Compensation Commission (AWCC) Administra...","fetched_at":"2026-05-19T23:03:31.908Z","links":{"html":"/opinions/alj-G907485-2023-08-07","pdf":"https://labor.arkansas.gov/wp-content/uploads/EVANS_KENNETH_G907485_20230807.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}