{"id":"alj-H002934-2025-04-16","awcc_number":"H002934","decision_date":"2025-04-16","opinion_type":"alj","claimant_name":"Vanessa Delamar","employer_name":"Arkadephia Human Dev. Ctr","title":"DELAMAR VS. ARKADEPHIA HUMAN DEV. CTR. AWCC# H002934 April 16, 2025","outcome":"granted","outcome_keywords":["granted:4","denied:1"],"injury_keywords":["back","shoulder","hip","neck","rotator cuff"],"pdf_url":"https://www.labor.arkansas.gov/wp-content/uploads/Delamar_Vanessa_H002934_20250416.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Delamar_Vanessa_H002934_20250416.pdf","text_length":37845,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H002934 \n \n \nVANESSA DELAMAR, EMPLOYEE CLAIMANT \n \nARKADEPHIA HUMAN DEV. CTR., \n EMPLOYER RESPONDENT \n \nPUBLIC EMPLOYEE CLAIMS DIV., \n CARRIER/THIRD-PARTY ADM’R RESPONDENT \n \n \nOPINION FILED APRIL 16, 2025 \n \nHearing before Administrative Law Judge O. Milton Fine II on January 29, 2025, in Little \nRock, Pulaski County, Arkansas. \n \nClaimant represented by Mr. Gary Davis, Attorney at Law, Little Rock, Arkansas. \n \nRespondents represented  by  Mr. Charles  H.  McLemore,  Attorney  at  Law, Little  Rock, \nArkansas. \n \n \nSTATEMENT OF THE CASE \n \n On January  29,  2025,  the  above-captioned  claim  was  heard  in Little  Rock, \nArkansas.  A prehearing conference took place on November 20, 2024.  The Prehearing \nOrder entered on November 21, 2024, pursuant to the conference was admitted without \nobjection  as  Commission  Exhibit  1.    At  the  hearing,  the  parties  confirmed  that  the \nstipulations, issues, and respective contentions, as amended, were properly set forth in \nthe order. \nStipulations \n At  the  hearing,  the  parties  discussed  the  stipulations  set  forth  in  Commission \nExhibit 1.  Following amendments, they read as follows: \n\nDELAMAR – H002934 \n \n2 \n1. The Arkansas Workers’ Compensation Commission has jurisdiction over \nthis claim. \n2. The     employee/employer/carrier/third-party     administrator relationship \nexisted at  all  relevant  times,  including  May  11,  2020,  when  Claimant \nsustained compensable injuries to her back, right arm, and right shoulder.  \nRespondents accepted these injuries as compensable. \n3. Claimant’s average weekly wage of $805.45 entitles her to compensation \nrates of $537.00/$403.00. \n4. Respondents have controverted this claim for additional benefits. \nIssues \n At  the  hearing,  the parties  discussed the  issues  set forth  in  Commission  Exhibit \n1.  Following amendments, the following were litigated: \n1. Whether  Claimant  sustained a compensable  injury to her left  hip by \nspecific incident. \n2. Whether   Claimant   is   entitled   to   reasonable   and   necessary   medical \ntreatment of her alleged compensable left hip injury, to include a total hip \nreplacement. \n3. Whether Claimant   is   entitled   to additional temporary   total   disability \nbenefits for the period of May 25, 2021, through July 6, 2022.\n1\n \n \n \n1\nThis was the date supplied by the parties at the hearing.  [T. 7]  But it is clearly \nan error; the payout history that is in evidence (Respondents’ Exhibit 2) shows that \npayment  of  temporary  total  disability  benefits  to  Claimant  resumed  on  July  27,  2022.  \n\nDELAMAR – H002934 \n \n3 \n4. Whether Respondents  are  entitled  to  an  offset  or  a  credit  for  temporary \ntotal disability benefits that they paid for the period of October 31, 2022, to \nNovember 29, 2022. \n5. Whether Claimant is entitled to a controverted attorney’s fee. \n All other issues have been reserved. \nContentions \n The respective contentions of the parties read as follows: \n Claimant: \n1. Claimant  contends  that she  sustained  compensable  injuries  to  her  right \nshoulder  and  left  hip  on  May  11,  2020.    Respondents  have  controverted \nthe condition of the left hip.  Claimant contends entitlement to payment of \nmedical expenses associated with her left hip injury as well as temporary \ntotal disability benefits. \n Respondent: \n1. Respondents contend that Claimant reported having an injury on May 11, \n2020,  when  she  fell  and  landed  on  her  right  arm  and  injured  her  back, \nwhich they accepted  as  compensable.  Claimant  has  been  provided \nreasonable  and  necessary treatment  of her  compensable  injury,  and  has \nbeen paid temporary total disability benefits while in her healing period for \nher compensable injury. \n \nFor that reason, it is reasonable to conclude that the parties intended the end date to be \nJuly 26, 2022.  It will be analyzed as such. \n\nDELAMAR – H002934 \n \n4 \n2. Respondents provided medical treatment for Claimant’s low back with Dr. \nWayne Bruffett,  who  released her at  maximum  medical  improvement to \nfull duty with respect to her low back on August 5, 2020, but referred her \nto a hip specialist for her very arthritic left hip.  They provided treatment for \nher left hip with Dr. Adam Smith until he released her at maximum medical \nimprovement  on  December  22,  2020.    On  that  date, he  assigned  her no \npermanent impairment to her left hip due to her work injury, and also wrote \nthat she needed  a  total  hip  replacement  for  her end-stage,  degenerative \njoint disease, which again was not due to her work injury. \n3.  Respondents covered Claimant’s October 21, 2020, right shoulder rotator \ncuff  repair  with  Dr.  Phillip  Smith.  He released her at  maximum  medical \nimprovement  for her shoulder  on  May  3,  2021,  with  no  work  restrictions, \nalong   with an   order for passive   range-of-motion   measurements   to \ndetermine  permanent  impairment.  Respondents paid  temporary  total \ndisability  benefits  until  May  3,  2021.  Smith  ultimately  assigned  Claimant \nan   impairment   rating   of   six  percent   (6%)   to   the  body   as   a   whole \nconcerning  her  shoulder.    Respondents  accepted  this  rating  and  paid \nClaimant permanent partial disability benefits pursuant to it. \n4. Respondents provided Claimant with further treatment with Dr. Smith, and \nshe  was  paid additional temporary  total  disability  benefits  from  July  27, \n2022,  until  November  29,  2022.  However,  Smith again released  her  at \nmaximum  medical  improvement on  October  31,  2022—resulting  in  an \n\nDELAMAR – H002934 \n \n5 \noverpayment of temporary total disability benefits.  Respondent is entitled \nto a credit therefor. \n5. Respondents further contend that  the  left  total  hip  replacement  that \nClaimant demands is not reasonable and necessary medical treatment for \nher compensable   injuries.  She has   reached   maximum   medical \nimprovement for  them.  After Claimant  requested  a  continuance  of  the \nhearing,  on  June  3,  2022,  this  file was  returned  to  the Commission’s \ngeneral  files,  and  no  hearing  took  place.  Respondents filed a motion  to \ndismiss this claim, to which she has objected. \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n After reviewing the record as a whole, including medical reports, documents, and \nother  matters  properly  before  the  Commission,  and  having  had  an  opportunity  to  hear \nthe testimony of the witness and to observe her demeanor, I hereby make the following \nFindings of Fact and Conclusions of Law in accordance with Ark. Code Ann. § 11-9-704 \n(Repl. 2012): \n1. The Arkansas Workers’ Compensation Commission has jurisdiction over \nthis claim. \n2. The stipulations set forth above are reasonable and are hereby accepted. \n3. Claimant has  not  proven  by  a  preponderance  of  the  evidence  that  she \nsustained a compensable injury to her left hip by specific incident. \n4. Because of Finding/Conclusion NO. 3, supra, Claimant has not proven by \na  preponderance  of  the  evidence  that  she is  entitled  to  reasonable  and \n\nDELAMAR – H002934 \n \n6 \nnecessary medical treatment of her alleged compensable left hip injury, to \ninclude a total hip replacement. \n5. Claimant has  proven  by  a  preponderance  of  the  evidence  that  she is \nentitled to additional temporary total disability benefits from May 25, 2021, \nthrough July 26, 2022. \n6. The evidence preponderates that Respondents are entitled to a dollar-for-\ndollar  offset  concerning  their  overpayment  to  Claimant  of  temporary  total \ndisability  benefits  for  the  period  of  October  31,  2022,  through  November \n29, 2022. \n7. Claimant has  proven  by  a  preponderance  of  the  evidence  that  she is \nentitled to a controverted attorney’s fee. \nADJUDICATION \nSummary of Evidence \n Claimant  was  the sole witness.  Along  with the Prehearing Order  discussed \nabove,  the  exhibits admitted  into  evidence were Claimant’s Exhibit 1, a compilation of \nher medical records, consisting of two index pages and 92 numbered pages thereafter; \nRespondent’s Exhibit  1,  another compilation  of Claimant’s medical  records,  consisting \nof four  abstract/index  pages  and 128 numbered  pages  thereafter; and Respondents’ \nExhibit 2,  non-medical  records,  consisting  of  one  index  page  and 23 numbered  pages \nthereafter. \n\nDELAMAR – H002934 \n \n7 \n In addition, I have blue-backed to the record the post-hearing briefs of Claimant \nand  Respondents,  both  filed  on  February  12,  2025,  and  consisting  of  four  and  six \nnumbered pages, respectively. \nA. Compensability \n Introduction.  As set out above, the parties have agreed that Claimant sustained \ncompensable injuries to her back, right arm, and right shoulder on May 11, 2020.  But in \nthis action, she is asserting that as a result of that same specific work-related incident, \nshe also suffered a compensable injury to her left hip.  Respondents have controverted \nthe alleged hip injury. \n Standards.   Arkansas Code  Annotated  § 11-9-102(4)(A)(i)  (Repl.  2012),  which  I \nfind applies to the analysis of this alleged injury, defines “compensable injury”: \n(i) An  accidental  injury  causing  internal  or  external  physical  harm  to \nthe  body  .  .  .  arising  out  of  and  in  the  course  of  employment  and \nwhich requires medical services or results in disability or death.  An \ninjury is “accidental” only if it is caused by a specific incident and is \nidentifiable by time and place of occurrence[.] \n \nA compensable injury must be established by medical evidence supported by objective \nfindings.  Ark. Code Ann. § 11-9-102(4)(D) (Repl. 2012).  “Objective findings” are those \nfindings that cannot come under the voluntary control of the patient.  Id. § 11-9-102(16). \n If  Claimant  fails  to  establish  by  a  preponderance  of  the  evidence any of  the \nrequirements  for  establishing  compensability,  compensation  must  be  denied.   Mikel  v. \nEngineered Specialty Plastics, 56 Ark. App. 126, 938 S.W.2d 876 (1997).  This standard \nmeans the evidence having greater weight or convincing force.  Barre v. Hoffman, 2009 \n\nDELAMAR – H002934 \n \n8 \nArk.  373,  326  S.W.3d  415; Smith  v.  Magnet  Cove  Barium  Corp.,  212  Ark.  491,  206 \nS.W.2d 442 (1947). \n Discussion.  Claimant, who is 67 years old and a high school graduate, testified \nthat she  first  went  to  work for Respondent  Arkansas  Human  Development  Center - \nArkadelphia (“AHDC”) in May 1999.  At the time of the stipulated work-related incident \non May 11, 2020, she was employed as a teacher’s assistant.  This job, which she held \nuntil July 20, 2020, was strenuous; and her duties varied widely.  For example, not only \ndid she assist clients with personal grooming, but she brought boxes of books for them \nto  shred.   She  helped  them  with  craft  projects,  and  used  a  computer  to  track  their \nprogress  in  the  classroom.   At  times,  she  even  had  to  operate  a  forklift.    On  other \noccasions, she transported clients to and from their homes, medical appointments, and \nvarious outings. \n Asked how she was injured at work, Claimant responded: \nI went to work that morning and I was getting ready to get off, and I was—I \nhad  one  of  the  clients  in  a  wheelchair  and  I  was  proceeding  to push  her \nhome  from  the  classroom,  and  as  I  got  to  the  door  to  push  her  out  the \ndoor, I ended up with the wheelchair and me both landing on the concrete \npavement, and I had to end up at the emergency room from there.\n2\n \n \n \n2\nThe report from Claimant’s treatment at CHI St. Vincent Hot Springs on May 12, \n2020, contains the following recountings of Claimant’s accident: \n \nPer Provider Injury Alert, “Employee stated that she was getting ready to \nleave.    She  was  walking  around  another  client  in  a  wheelchair.    The \nemployee  moved  the  wheelchair  and  it  caught  her  pants.    She  [f]ell  and \nlanded on her right arm and injured her back.” \n \n. . . \n\nDELAMAR – H002934 \n \n9 \n \nClaimant  initially  treated  at  an  emergency  room  in  Arkadelphia  before  going  on  to  Hot \nSprings. \n Asked  about  the  condition  of  her  hip  after  the  wheelchair  incident,  Claimant \nrelated: \nIt  was  like  my  hip  would—when  I  would,  like,  try  to  get  up,  it  was  like  I \ncould  feel  something in  there that  wasn’t  right, and  it  was  just  like  be \nhurting all the time, so that’s why I went to the doctor and then he started \ngiving me injections.  Then he told me the injections didn’t work so he told \nme I needed to have a total hip [replacement]. \n \nAlong with the injections, her hip was being treated with physical therapy. \n According  to  Claimant,  she  was  being  treated  for  her  hip  by  Dr.  Phillip  Smith.  \nThe following exchange took place on direct examination: \nQ. And  to  the  best  of  your  knowledge—before  you  had  your  hip \nreplacement  surgery, to  the best  of  your  knowledge,  were the  bills \nbeing paid by workers’ compensation? \n \nA. No. \n \nQ. Tell me— \n \nA. My insurance— \n \nQ. —at what point in time did your insurance take over and pay? \n \nA. When  the  doctor  said—it turned around that he didn’t think that I \ngot hurt when I fell. \n \nQ. Okay. \n \n \nThe  problem  began  on  5/11/2020.    1\nst\n visit;  5/12/2020:    going  around  a \nclient  in  wheelchair  that  was  then  pushed  essentially  knocking  her  down, \nfalling onto R side. \n \n \n\nDELAMAR – H002934 \n \n10 \nA. And I told him I did, and so workman’s comp stopped paying for me \nat my office visits, so then my insurance took over. \n \n. . . \n \nQ. Before  Dr.  Smith  indicated  that  a  hip  replacement  surgery  was \nbeing recommended for you.  Okay? \n \nA. Yes, sir. \n \nQ. Okay.  Before that happened— \n \nA. Mm-hm. \n \nQ. —the hip treatment that you were getting, do you know whether or \nnot it was being paid by workers’ compensation? \n \nA. Yes, it was. \n \nClaimant  added  that  while  her  need  for a  hip  replacement  was  broached  in  December \n2020,  the  operation  did  not  happen  until  May  25,  2021.  During  December  2020,  she \ndiscovered that Respondents were not going to cover the surgical procedure. \n As  a  result  of  the  hip  replacement,  per  Claimant,  the  condition  of  her  hip \nimproved.  She is glad that she underwent the procedure. \n During her testimony, Claimant acknowledged that, as reflected in Respondents’ \nExhibit 1, she had pre-existing hip problems.  The following exchange occurred: \nQ. What’s  the  difference  between  after  this  May  the  11\nth\n of  2020 \naccident  and  those  things  that  you  had  been  to  the  doctor  for \nbefore? \n \nA. Because  before  it  was  like  after  the  doctor  had  treated  me  for  the \nother two incidents, my hip got better.  It wasn’t—it didn’t bother \nme.  But this time when I fell, it didn’t stop hurting. \n \n\nDELAMAR – H002934 \n \n11 \n On cross-examination, Claimant acknowledged that her left hip problems go back \nto 2016.  During that period, she saw physicians including Drs. Charity Loudermilk and \nBryan  McDonnell.    But  despite the  fact that  she  treated  with  them  for  her  hip  in  2018 \nand  2019  for  arthritic  hip  pain,  she  hastened  to  add  that  her  hip  issues  were  not \ncontinual. \n Asked  about  the  statement  in  her  Form  AR-N  that  is  in  evidence  and  which \nreflects that “[s]he fell and landed on her right arm and injured her back,” Claimant \nexplained:  “[t]hat’s what the doctor said at first, but then my hip started hurting me . . . .”  \nNotwithstanding the description in the form, Claimant elaborated:  “[s]o when I landed, it \njarred my whole body . . . I’m hitting concrete pavement.”  Per Claimant, her hip was not \nbothering her prior to the fall, and did not hurt immediately after the wheelchair incident. \n She saw Dr. Adam Smith in December 2020, and he described her as having a \nhistory  of  left  hip  osteoarthritis.    He  was  the  one  who  recommended  that  the  hip  be \nreplaced.  Again, she testified that this surgery improved her condition. \n The medical records in evidence reflect that when Claimant presented to CHI St. \nVincent Hot Springs on the day after her work-related fall, May 12, 2020, she stated that \nshe “[f]ell and landed on her right arm and injured her back.”  Claimant described having \npain  in  her  right  shoulder  and  pain  in  her  lower  back  that  was  extending  up  into  her \nneck. \n For nearly three months after this initial treatment, Claimant made no mention of \nher  left  hip.    This  changed  on  August  6,  2020,  when  she  went  to  OrthoArkansas.   On \nthat date, per the report, [s]he [was] complaining of low back pain with radiation into her \n\nDELAMAR – H002934 \n \n12 \nleft hip.”  After studying her x-rays, Dr. Phillip Smith wrote that Claimant “has a very \narthritic appearing hip joint on the left side.”  Returning to OrthoArkansas on September \n3, 2020, and seeing Dr. Adam Smith, Claimant told him that she “has had worsening left \nhip pain since” her May 2020 fall at work.  The record continues: \nShe  is  [sic]  never  had  an  injection  in  her  hip.    She  did  see  Dr.  Breathitt \ninitially  who  got  an  MRI  of  her  hip  and  back  and  recommend[ed]  she \nfollow-up with me.  She denies having pain in her hip before her fall.” \n \nDr. Smith added: \nX-rays  of  her  left  hip  show  loss  of  the  joint  space,  subchondral  sclerosis \nand osteophyte formation. \n \nAssessment:  Left hip osteoarthritis \n \n On September 3, 2020, Claimant underwent a steroid injection of her hip by Dr. \nAdam Smith.  He assessed her on September 10, 2020, as having trochanteric bursitis \nof the left hip with IT band syndrome in addition to her osteoarthritis.  The report of her \nDecember 17, 2020, visit to him reads in pertinent part: \nOsteoarthritis of hip – Patient is a 63-year-old female with a history of left \nhip  osteoarthritis  returns  today  for  follow[-up].    I  had  previously  given  her \nleft hip ultrasound injection which did provide her with some relief but it did \nnot last.  She returns today stating that she has continued pain in her left \nhip that is made worse with any type of prolonged walking or standing as \nwell  as  getting  in  and  [out]  of  a  chair  or  going  up  and  down  stairs.    Is \nimproved with rest.  She states the longer she is on the more it hurts.  She \nhas  failed  conservative  management  to  date  and  is  read  to  proceed  to \nfurther options. \n \n. . . \n \nAssessment:  End-stage osteoarthritis left hip. \n \nPlan:    She  has  failed  conservative  management  and  wants  to  pursue \noperative  intervention.    We  discussed  the  risks  and  benefits  of  surgery \n\nDELAMAR – H002934 \n \n13 \ntoday  in  great  detail.    She  understands  the  risks  and  wants  to  proceed.  \nGet her set up for a left total hip at her convenience. \n \nDuring  another  appointment  at  OrthoArkansas  on  May  14,  2021,  she  related  that  she \nwas  returning  to  the  clinic  to  have  her hip surgery  rescheduled  under  her  primary \ninsurance  because  Respondents  had  declined  to  cover  it.  X-rays  again  showed  end-\nstage  osteoarthritis  with  complete  loss  of  joint  space,  along  with  subchondral  sclerosis \nand osteophyte formation. \n On May 26, 2021, Claimant underwent a total left hip replacement.  This is only \ndocumented  from  reports  of  hip  x-rays  taken  during  surgery;  the  surgical  report  itself, \nassuming such exists, is not a part of the evidentiary record.  In a follow-up appointment \nwith Dr. Adam Smith on June 10, 2021, Claimant reported that she was doing well with \nrespect to her hip.  When she saw him again on July 9, 2021, Claimant complained of “a \nfair amount of pain” that was radiating from her left buttock down into her foot.  The \ndoctor did not ascribe the pain to her hip, but instead to her back. \n On  September  10,  2021,  Claimant  told  Dr.  Adam  Smith  that  she  was  “doing \nmuch better with regards to her hip.”  The doctor on September 13, 2021, added the \nfollowing Addendum to the report of that visit: \nPatient  is  a  Worker’s  Comp.  patient  and  sustained  an  injury  which \nprecipitated  her  symptoms  in  May  2020.    She  states  that  she  was  not \nhaving symptoms prior to her fall.  Given her x-rays that were performed in \nAugust  2020  she  does  have  arthritis  in  those  x-rays.    It  is  highly  unlikely \nthat  the  arthritis  developed  with  the  fall.    What  is  more  likely  the case  is \nthat  she  had  pre-existing  arthritis  that  was  asymptomatic  or  minimally \nsymptomatic  that  was  exacerbated  by  the  fall  worsening  of  pre-existing \ncondition. \n \n\nDELAMAR – H002934 \n \n14 \nWhen Claimant went back to Dr. Adam Smith on June 10, 2022, she told him that her \nhip was still “doing very well.”  But because she  was  presenting  with  pain  along  her \ntrochanteric   bursa   and   distally along   her   IT   band,   he   assessed   her   as   having \ntrochanteric  bursitis,  gave  her  an  injection  into  the  bursa,  and  sent  her  to  physical \ntherapy “to stretch out her IT band.”  He also prescribed Voltaren. \n Dr. Adam Smith has opined that Claimant had pre-existing arthritis in her left hip.  \nHer medical records that are in evidence reflect that prior to the stipulated work-related \nfall  that  she  suffered on  May  11, 2020,  she had  presented  on  two  occasions—in  2016 \nand  2018—with  left  hip  pain.    The  Commission  is  authorized  to  accept  or  reject  a \nmedical  opinion  and  is  authorized  to  determine  its  medical  soundness  and  probative \nvalue.  Poulan Weed Eater v. Marshall, 79 Ark. App. 129, 84 S.W.3d 878 (2002); Green \nBay  Packing  v.  Bartlett,  67  Ark.  App.  332,  999  S.W.2d  692  (1999).    Based  on  the \nevidence, I credit his opinion on this point. \n An employer under the Arkansas Workers’ Compensation Act takes an employee \nas  the  employer  finds  her.    Employment  circumstances  that  aggravate  pre-existing \nconditions  are  compensable.   Nashville  Livestock  Comm.  v.  Cox,  302  Ark.  69,  787 \nS.W.2d 64 (1990).  A pre-existing infirmity does not disqualify a claim if the employment \naggravated,  accelerated,  or  combined  with  the  infirmity  to  produce  the  disability  for \nwhich  compensation  is  sought.   St.  Vincent  Med.  Ctr.  v.  Brown,  53  Ark.  App.  30,  917 \nS.W.2d   550   (1996).    However, “[a]n   aggravation,   being   a   new   injury   with   an \nindependent cause, must meet the requirements for a compensable injury.”  Crudup v. \nRegal  Ware,  Inc.,  341  Ark.  804,  20  S.W.3d  900  (2000); Ford  v.  Chemipulp  Process, \n\nDELAMAR – H002934 \n \n15 \nInc.,  63  Ark.  App.  260,  977  S.W.2d  5  (1998).    This  includes  the  prerequisite  that  the \nalleged  injury  be  shown  by  medical  evidence  supported  by  objective  findings.   See \nHeritage Baptist Temple v. Robison, 82 Ark. App. 460, 120 S.W.3d 150 (2003). \n The  medical  evidence,  as  recounted  above,  is  devoid  of  objective  findings  of  a \nhip  injury.    The  only  objective  findings  are  strictly  degenerative.    For  that  reason, \nClaimant  cannot  show  that  she  suffered  a  compensable  left  hip  injury.    Consequently, \nthis portion of her claim must fail. \nB. Reasonable and Necessary Medical Treatment \n Introduction.    Claimant  has  argued  that  she  is  entitled  to  reasonable  and \nnecessary  treatment  of  her  alleged  left  hip  injury,  to  include  the  total  hip  replacement \nthat she has undergone. \n Standards.    Arkansas  Code  Annotated  Section  11-9-508(a)  (Repl.  2012)  states \nthat an employer shall provide for an injured employee such medical treatment as may \nbe necessary in connection with the injury received by the employee.  Wal-Mart Stores, \nInc. v. Brown, 82 Ark. App. 600, 120 S.W.3d 153 (2003).  But employers are liable only \nfor  such  treatment  and  services  as  are  deemed  necessary  for  the  treatment  of  the \nclaimant’s injuries.  DeBoard v. Colson Co., 20 Ark. App. 166, 725 S.W.2d 857 (1987).  \nThe claimant must prove by a preponderance of the evidence that medical treatment is \nreasonable  and  necessary  for  the  treatment  of  a  compensable  injury.   Brown, supra; \nGeo  Specialty  Chem.  v.  Clingan,  69  Ark.  App.  369,  13  S.W.3d  218  (2000).    What \nconstitutes  reasonable  and  necessary  medical  treatment  is  a  question  of  fact  for  the \n\nDELAMAR – H002934 \n \n16 \nCommission.  White Consolidated Indus. v. Galloway, 74 Ark. App. 13, 45 S.W.3d 396 \n(2001); Wackenhut Corp. v. Jones, 73 Ark. App. 158, 40 S.W.3d 333 (2001). \n As  the  Arkansas  Court  of  Appeals  has  held,  a  claimant  may  be  entitled  to \nadditional treatment even after the healing period has ended, if said treatment is geared \ntoward management of  the  injury.  See Patchell  v.  Wal-Mart  Stores,  Inc., 86  Ark.  App. \n230,  184  S.W.3d  31  (2004); Artex  Hydrophonics,  Inc.  v.  Pippin,  8  Ark.  App.  200,  649 \nS.W.2d 845 (1983).  Such services can include those for the purpose of diagnosing the \nnature and extent of the compensable injury; reducing or alleviating symptoms resulting \nfrom  the  compensable  injury;  maintaining  the  level  of  healing  achieved;  or  preventing \nfurther  deterioration  of  the  damage  produced  by  the  compensable  injury.   Jordan  v. \nTyson Foods, Inc., 51 Ark. App. 100, 911 S.W.2d 593 (1995); Artex, supra. \n Discussion.   Claimant  has  not  proven  by  a  preponderance  of  the  evidence  that \nshe  sustained  a  compensable  left  hip  injury.    Consequently,  she cannot  establish  her \nentitlement to reasonable and necessary treatment of it—including her hip replacement \nsurgery. \nC. Temporary Total Disability \n Introduction.  As part of this action, Claimant is seeking additional temporary total \ndisability benefits from May 25, 2021, through July 6, 2022.  Respondents have denied \nresponsibility  for  this  period,  and  have  asserted  that  they  are  entitled  to  an  offset  or  a \ncredit for  a  period  during  which  they allegedly incorrectly  paid  these  benefits  to her:  \nfrom October 31, 2022, to November 29, 2022. \n\nDELAMAR – H002934 \n \n17 \n Standards.   The stipulated compensable injuries to Claimant’s back and right \nshoulder  are  unscheduled  ones.    See Ark.  Code  Ann.  §  11-9-521  (Repl.  2012).    An \nemployee  who  suffers  a  compensable  unscheduled  injury  is  entitled  to  temporary  total \ndisability compensation for that period within the healing period in which he has suffered \na  total  incapacity  to  earn  wages.   Ark.  State  Hwy.  &  Transp.  Dept.  v.  Breshears,  272 \nArk. 244, 613 S.W.2d 392 (1981).  As for the stipulated compensable injury to her right \nupper  extremity,  it  is  scheduled.   Ark.  Code  Ann.  §  11-9-521(a)(1)-(2).   An  employee \nwho has  sustained a  compensable  scheduled  injury is  entitled  to  temporary  total \ndisability compensation “during the healing period or until the employee returns to work, \nwhichever occurs first . . . .”  Id. § 11-9-521(a).  See Wheeler Const. Co. v. Armstrong, \n73  Ark.  App.  146,  41 S.W.3d  822  (2001).   Also,  a  claimant must demonstrate  that  the \ndisability lasted more than seven days.  Ark. Code Ann. § 11-9-501(a)(1). \n Discussion.   During  her  testimony,  Claimant  related  that as  a  result  of  her \nstipulated  compensable  right  shoulder  injury,  she  underwent  two  surgeries  on  it.    Both \nwere  covered  by  Respondents.   The  medical  records  reflect  that  the  first  operation, \nperformed  by  Dr.  Phillip  Smith, took  place  on  October  21,  2020.    On  that  date,  she \nunderwent  a  right  rotator  cuff  repair,  along  with  a  subacromial  decompression  with \nacromioplasty.  Her pre and post-operative diagnoses were (1) right rotator cuff tear and \n(2)   impingement.    Dr.   Smith   found   that   Claimant   reached maximum   medical \nimprovement (“MMI”) with respect to her shoulder on May 3, 2021.  Thereafter, he sent \nher  to  be  evaluated  for  an  impairment  rating by  Functional  Testing  Centers,  Inc.  \n\nDELAMAR – H002934 \n \n18 \nThereafter,  on  May  24,  2021,  Dr.  Smith  reiterated  the  aforementioned  MMI  date  and \nreleased her with an impairment rating of six percent (6%) to the body as a whole. \n Prompted  by  the  above,  Respondents  ceased  payment  of  temporary  total \ndisability  benefits  on  May  24,  2021.    The  following  exchange  took  place  during \nClaimant’s direct examination: \nQ. Now between May 25\nth\n of 2021, and July the 7\nth\n of 2022, when you \nhad that shoulder surgery, did you work during that period of time? \n \nA. No. \n \nQ. Okay.  Were you able to work during that— \n \nA. No. \n \nQ. —period of time?  Okay.  You took a retirement, did you not? \n \nA. Yes, sir. \n \nQ. If  I’m  correct—if  my  notes  are  correct,  it  would  be  somewhere \naround July— \n \nA. Yes, sir. \n \nQ. Maybe July the 11\nth\n— \n \nA. Yes, sir. \n \nQ. —of 2020, that you took a retirement? \n \nA. Yes, sir. \n \nQ. Okay.  Now why was it that you took a retirement in July of 2020? \n \nA. Because I felt I wasn’t gonna be able to continue to do my job \nbecause I was in so much pain. \n \nQ. Okay. \n \n\nDELAMAR – H002934 \n \n19 \nA. My shoulder hurt me so bad that it was like I was having to stay on \nmeds  and  stuff  just  to,  you  know,  be  able  to  function  on  a  daily \nbasis. \n \nQ. Okay. \n \nA. I know I couldn’t work like that. \n \nQ. I think that your first surgery was October the 21\nst\n of 2020, to your \nright shoulder. \n \nA. Yes, sir. \n \nQ. And then you later had this second surgery— \n \nA. Yes. \n \nQ. —in July of ’22. \n \nA. Yes, sir. \n \n A claimant’s testimony is never considered uncontroverted.  Nix v. Wilson World \nHotel,  46  Ark.  App.  303,  879 S.W.2d  457 (1994).    The determination  of a  witness’ \ncredibility and how much weight to accord to that person’s testimony are solely up to the \nCommission.  White v. Gregg Agricultural Ent., 72 Ark. App. 309, 37 S.W.3d 649 (2001).  \nThe  Commission  must  sort  through  conflicting  evidence  and  determine  the  true  facts.  \nId.  In so doing, the Commission is not required to believe the testimony of the claimant \nor  any  other  witness,  but  may  accept  and  translate  into  findings  of  fact  only  those \nportions of  the  testimony  that  it  deems  worthy  of  belief.   Id.   After due  consideration, I \ncredit Claimant’s testimony on this point. \n At the same time, per Poulan, supra, I cannot and do not credit the opinion of Dr. \nPhillip  Smith  that  Claimant reached  MMI  concerning  her  stipulated  compensable  right \n\nDELAMAR – H002934 \n \n20 \nshoulder injury as of May 3, 2021—or even as of May 24, 2021, when he repeated this \nfinding and assigned her a permanent impairment rating for her shoulder.  The reason \nfor  this  is  that,  as  the  medical  evidence  thereafter  readily  bears  out,  his  opinion  was \ngiven in error and based upon an incomplete picture of her shoulder condition. \n On May 3, 2021—which, again, is the date that Dr. Phillip Smith found Claimant \nto  be  at  MMI—she was still “complaining of some pain” in her right shoulder despite \nbeing “six months out” from her first shoulder surgery.  When  she  returned  to  him  on \nApril 22, 2022, she presented “with continued pain in the right shoulder.”  The doctor \nnoted that “[t]here has been no new trauma.”  The report continues: \nPhysical  Exam:    Right  shoulder  shows  healed  portals.    She  does  have \nsome  pain  with  overhead  forward  flexion.    She  also  has  pain  against \nrotator cuff resistance.  She is neurovascularly intact. \n \n. . . \n \nAssessment:      Previous   right   rotator   cuff   repair   with   continued   right \nshoulder pain[.] \n \nPlan:    I  am  going  to  order  an  MRI  of  her  right  shoulder  due  to  her \ncontinued pain after rotator cuff repair.  She can continue to work without \nrestriction,\n3\n I will see her back after her MRI of her right shoulder. \n \nDr.  Phillip  Smith  saw  Claimant  again  on  July  11,  2022.    The  report  of  that  visit  shows \nthat the repeat MRI “showed a healed rotator cuff but some evidence of inflammation.”  \nThe doctor wrote: \nShe has had continued pain in her right shoulder following her repair.  She \ndid not respond to therapy and an injection.  At this point we will plan for \n \n \n3\nIn  light  of  what  is  discovered  during  her  second  surgery—see  infra—I  likewise \ndo not credit this under Poulan, supra. \n\nDELAMAR – H002934 \n \n21 \nrepeat  right  shoulder  arthroscopy  with  evaluation  of  a  rotator  cuff  repair \nwith lysis of adhesions. \n \n Dr.  Smith  performed  the  second  shoulder  surgery  on  July  27,  2022.    Per  his \nreport,  which  is  in  evidence,  he  discovered  that  Claimant  had  not  only  developed \nsubdeltoid  adhesions,  but  that  there  were  “multiple  large  cartilaginous  loose  bodies \nthroughout the shoulder.”  An expanded incision had to be made to extract these “loose \nbodies.”  A shaver was employed to remove the smaller ones. \n Again,  in  order  to  be  entitled  to  additional  temporary  total  disability  benefits, \nClaimant  must  show,  inter  alia, that  during  the  period  in  question,  she  was  still  in  her \nhealing  period.    The  healing  period  ends  when  the  underlying  condition  causing  the \ndisability  has  become  stable  and  nothing  further  in  the  way  of  treatment  will  improve \nthat  condition.   Mad  Butcher,  Inc.  v.  Parker,  4  Ark.  App.  124,  628  S.W.2d  582  (1982).  \nThe medical evidence recounted above clearly shows that she did not reach the end of \nthis healing period as of May 3, 2021.  Instead, she remained in that period all the way \nuntil  she  recovered  from  her  second  shoulder  surgery (October  31,  2022—see infra).  \nRespondents  assumed  responsibility  for  this  second  operation  and  resumed  the \npayment of temporary total disability benefits as of July 27, 2022.  During the period at \nissue  here  when  benefits  were  suspended  or  ended—May  4,  2021,  through  July  26, \n2022—Claimant  was  not  only  still  in  her  healing  period,  but  as  her credible testimony \noutlined above amply demonstrates, she was suffering a total incapacity to earn wages.  \nConsequently,  she  has  proven  by  a  preponderance  of  the  evidence  her  entitlement  to \nadditional benefits of this type from May 4, 2021, through July 26, 2022. \n\nDELAMAR – H002934 \n \n22 \n At  the  same  time, Respondents  have  alleged  that  they  should  be  entitled  to  an \noffset or credit for temporary total disability benefits that they claim were incorrectly paid \nfor the period of October 31, 2022, through November 29, 2022.  Per the payout history, \ncontained in Respondents’ Exhibit 2, they did continued to pay her these benefits during \nthat time frame.  But as they correctly point out, Dr. Phillip Smith found Claimant to be at \nMMI concerning her shoulder as of October 31, 2022, and released her to full duty as of \nthat same date.  After consideration of the evidence, I credit the doctor’s opinion on this \nparticular  matter  under Poulan, supra,  and  find  that  Claimant  reached  the  end  of  her \nhealing  period  on  October  31,  2022.    For  that  reason, it  has  been established that \nClaimant  was  not  entitled  to  temporary  total  disability  benefits  from  October  31,  2022, \nthrough November 29, 2022.  That said, the evidence preponderates that Respondents \nare  entitled  to  a  dollar-for-dollar  offset  against  current  and  future  liability  for  indemnity \nbenefits  concerning  this  overpayment.  See  Maulding  v.  Price’s  Utility  Contrs.,  Inc., \n2009  Ark.  App. 776, 358 S.W.3d  915, pet. reh’g denied,  2010  Ark.  App. 51,  2010  Ark. \nApp. LEXIS 47. \nD. Attorney’s Fee \n Claimant has asserted that she is entitled to a controverted attorney’s fee in this \nmatter.  One of the purposes of the attorney's fee statute is to put the economic burden \nof litigation on the party who makes litigation necessary.  Brass v. Weller, 23 Ark. App. \n193, 745 S.W.2d 647 (1998).  In this case, the fee would be twenty-five percent (25%) \nof any indemnity benefits awarded herein, one-half of which would be paid by Claimant \nand one-half to be paid by Respondents in accordance with See Ark. Code Ann. § 11-9-\n\nDELAMAR – H002934 \n \n23 \n715  (Repl.  2012).   See Death  &  Permanent  Total  Disability  Trust  Fund  v.  Brewer,  76 \nArk. App. 348, 65 S.W.3d 463 (2002). \n As  the  parties  have  stipulated, Respondents have  controverted  Claimant’s \nentitlement  to the additional  indemnity  benefits awarded  above.    Thus,  the  evidence \npreponderates  that  his counsel,  the  Hon. Gary  Davis,  is  entitled  to  the  fee  as  set  out \nabove. \nCONCLUSION AND AWARD \n Respondents are directed to furnish/pay benefits in accordance with the findings \nof fact and conclusions of law set forth above.  All accrued sums shall be paid in a lump \nsum  without  discount,  and  this  award  shall  earn  interest  at  the  legal  rate  until  paid, \npursuant to Ark. Code Ann. § 11-9-809 (Repl. 2012).  See Couch v. First State Bank of \nNewport, 49 Ark. App. 102, 898 S.W.2d 57 (1995). \n Claimant’s  attorney  is  entitled  to  a twenty-five percent  (25%)  attorney’s  fee \nawarded herein, one-half of which is to be paid by Claimant and one-half to be paid by \nRespondents in accordance with Ark. Code Ann. § 11-9-715 (Repl. 2012). \n IT IS SO ORDERED. \n       ________________________________ \n       Honorable O. Milton Fine II \n       Chief Administrative Law Judge","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H002934 VANESSA DELAMAR, EMPLOYEE CLAIMANT ARKADEPHIA HUMAN DEV. CTR., EMPLOYER RESPONDENT PUBLIC EMPLOYEE CLAIMS DIV., CARRIER/THIRD-PARTY ADM’R RESPONDENT OPINION FILED APRIL 16, 2025 Hearing before Administrative Law Judge O. Milton Fine II on January 29, ...","fetched_at":"2026-05-19T22:41:40.823Z","links":{"html":"/opinions/alj-H002934-2025-04-16","pdf":"https://www.labor.arkansas.gov/wp-content/uploads/Delamar_Vanessa_H002934_20250416.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}