{"id":"alj-H004171-2023-08-22","awcc_number":"H004171","decision_date":"2023-08-22","opinion_type":"alj","claimant_name":"Joshua Shelton","employer_name":"Nucor Yamato Steel Co","title":"SHELTON VS. NUCOR YAMATO STEEL CO. AWCC# H004171 AUGUST 22, 2023","outcome":"granted","outcome_keywords":["granted:3"],"injury_keywords":["back","lumbar","sprain","strain","hip"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/Shelton_Joshua_H004171_20230822.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Shelton_Joshua_H004171_20230822.pdf","text_length":22482,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H004171 \n \nJOSHUA SHELTON, EMPLOYEE CLAIMANT \n \nNUCOR YAMATO STEEL CO., \nEMPLOYER RESPONDENT \n \nARCH INSURANCE COMPANY,  \nCARRIER                                                                                                  RESPONDENT \n \nARCH INSURANCE COMPANY,  \nTHIRD PARTY ADMINISTRATOR                                                           RESPONDENT \n \nOPINION FILED AUGUST 21, 2023 \n \nHearing before Administrative Law Judge Steven Porch on July 28, 2023, in Little Rock, \nArkansas. \n \nClaimant is represented by Mr. Andy Caldwell, Attorney at Law, Little Rock, Arkansas. \n \nRespondents are represented  by  Mr. Michael  E.  Ryburn,  Attorney  at  Law,  Little  Rock, \nArkansas. \n \nSTATEMENT OF THE CASE \n \n A hearing was held on this claim on July 28, 2023.  Claimant was represented by \nMr.  Andy  Caldwell,  Attorney  at  Law  of Little  Rock,  Arkansas;  Respondents  were \nrepresented by Mr. Michael E. Ryburn, Attorney at Law of Little Rock, Arkansas. \nSTIPULATIONS \n By agreement of the parties, the stipulations applicable to this claim are as follows: \n1. The Arkansas Workers’ Compensation Commission has jurisdiction \nof this claim. \n \n2. An employer/employee relationship existed on June 25, 2020, when \nClaimant sustained an injury to his back. \n \n3. The Claimant’s average weekly wage on June 25, 2020, was sufficient to \nentitle  him to  compensation  rates  of  $711.00  and  $533.00  for  temporary \ntotal and permanent partial disability benefits, respectively; and, \n \n4.       The Respondents have controverted the additional benefits sought herein. \n\nSHELTON H004171 \n \n2 \n \nISSUES \n The parties have identified the following issues to be adjudicated: \n1. Whether the Claimant is entitled to additional reasonably necessary medical \ntreatment previously denied by Respondents. \n \n2. Whether Claimant sustained a compensable back injury on June 25, 2020, \nand is entitled to appropriate benefits associated therewith. \n \n3. Whether Claimant is entitled to temporary total disability benefits from June \n25, 2020, through a date yet to be determined.  \n \n4. Attorney’s fees with respect to controverted indemnity benefits.  \n \nAll other issues are reserved. \n \nCONTENTIONS \n \nClaimant’s and Respondents’ contentions are set out in their responses to the \nPrehearing Questionnaire.  Said contentions are hereby incorporated by reference.  \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n After  reviewing  the  record  as  a  whole,  including  medical  reports,  documents, \nClaimant and Respondents’ post hearing briefs that are blue-backed and made a part of \nthis  record and  other  matters  properly  before  the  Commission,  and  having  had  an \nopportunity to hear the testimony of the Claimant, including other witnesses, and observe \ntheir demeanor,  I  hereby  make  the  following  findings  of  fact  and  conclusions  of  law  in \naccordance with Ark. Code Ann. § 11-9-704 (Repl. 2012): \n1.  The Arkansas Workers’ Compensation Commission  has  jurisdiction  over  this \nclaim. \n2.  The stipulations set forth above are reasonable and are hereby accepted.  \n3.  The  Claimant  is  entitled  to  additional  medical  treatment for his back  injury of \nJune 25, 2020. \n\nSHELTON H004171 \n \n3 \n \n4.   The  Claimant  is  entitled  to  additional  temporary  total  disability  benefits  from \nJune 25, 2020, through a date to be determined. \n5.   Claimant did sustain a compensable back injury on June 25, 2020. \n6.  Claimant is entitled to controverted attorney fees. \nCASE IN CHIEF \nSummary of Evidence \n The witnesses at the hearing were the Claimant, Winford Parker, Josh Raper, and \nGina Taylor. In addition to admitting the prehearing order into evidence, I also admitted \ninto evidence Claimant’s and Respondent’s exhibits that were properly admitted before \nthe Commission. Claimant suffered an alleged injury, during the course and scope of his \nemployment with Nucor Yamato Steel Company, as a Caster Inspector, when he tripped \nover  a  roll  line  injuring  his  back. Claimant previously sustained  a  preexisting  non-work \nrelated back injury and underwent back surgery December of 2018. Claimant was healed \nand symptom free by the time of Claimant’s work related back injury on June 25, 2020. \nDr. Riley Jones, of OrthoSouth, as it relates to the current claim, treated Claimant and \nordered him off work and prescribed him a Medrol dose pack. The Claimant next went to \nthe Nucor-Yamato Health Clinic on June 29, 2020, for physical therapy and TENS unit. \nThe Claimant reported to the physical therapist that he fell at work, and he had immediate \nback  pain  and  spasms.  Dr.  Jones  diagnosed  Claimant  with  a  lumbar  sprain  and \nprescribed Flexeril on July 10, 2020.  \nThe  Claimant was subsequently placed  on  restricted  duty  while  continuing  his \nphysical therapy. The Claimant returned to OrthoSouth on July 20, 2020, due to his back \npain and was treated by Dr. Christopher Ferguson. Dr. Ferguson took the Claimant back \n\nSHELTON H004171 \n \n4 \n \noff  work  and  changed  his  medication to  Toradol  and  Robaxin.  Dr.  Ferguson  also \nrecommended  additional  physical  therapy. On  July  31,  2020,  the  Claimant  returned  to \nsee Dr. Jones and reported a bad episode of muscle spasms. Claimant was kept off work \nand prescribed Robaxin specifically for muscle spasms. The Claimant saw Dr. Jones at \nOrthoSouth again on August 14, 2020, and he was kept on Robaxin for muscle spasms \nand was kept off work due to his injury.  \nThe  Claimant  next  saw  Dr.  Todd  Fountain  with  Semmes  Murphey  Clinic  on \nOctober 1, 2020. Dr. Fountain kept the Claimant off work and recommended a facet test \nblock followed by radiofrequency ablation. Dr. Fountain referred the Claimant to Dr. Jay \nMcDonald. The Claimant’s pain management doctor, Dr. Jay McDonald, has treated \nClaimant with a medial branch block on February 1, 2021, a L5-S1 transforaminal epidural \nsteroid injection on March 1, 2021, a medial branch blocks for his L4-S1 on March 23, \n2021, and a  radiofrequency  ablation  procedure  on  May  11,  2021.  Dr.  McDonald \nrecommended work restrictions and released to full-time work on September 13, 2021. \nThe  Claimant  returned  to  the  clinic  on  September  30,  2021,  complaining  about \naggravating  his  back  injury  again  at  work. Dr.  McDonald  then  placed Claimant on \nsedentary duty. Claimant also received a lumbar epidural steroid injection on November \n11,  2021.  Dr.  McDonald  recommended  a  psychological  evaluation  and  spinal  cord \nstimulator  on  December  7,  2021.  This  recommendation  was  denied  by  Respondents \nincluding all other requests for additional treatment.  \nDr. McDonald, signed a document on June 27, 2023, stating conclusively that he \nwas treating claimant for muscle spasms and an aggravation of epidural fibrosis because \nof  a  work  injury. Dr. McDonald  requested  a  second  opinion  from  Dr. Moacir Schnapp, \n\nSHELTON H004171 \n \n5 \n \nPain Clinic Associates, concerning a spinal cord stimulator. Dr. Schnapp opined that the \nspinal cord stimulator is the next step for Claimant. Moreover, during Claimant’s efforts to \nget approved treatment, the Respondents did not offer Claimant any sedentary work.  \nAdjudication \nA. Whether Claimant has sustained compensable back injury on June 25, 2020, \nand is entitled to appropriate benefits associated therewith? \n In  this  action,  Claimant  has  alleged  that  he  suffered a compensable  injury, by \nspecific incident, to his back on June 25, 2020, as he was attempting to jump over a roll \nline and landing on his back. The alleged injury occurred during the course and scope of \nhis employment  with Respondents.  Respondents  argue  that Claimant’s injury was not \ncompensable due to the lack of medical objective findings. \n Arkansas Code Annotated § 11-9-102(4)(A)(i) (Repl. 2012), which I find applies to \nthe analysis of Claimant’s alleged injury, defines “compensable injury”: \n(i) An accidental injury causing internal or external physical harm to the body \n.  .  .  arising  out  of  and  in  the  course  of  employment  and  which  requires \nmedical services or results in disability or death.  An injury is “accidental” \nonly if it is caused by a specific incident and is identifiable by time and place \nof occurrence[.] \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).  \nThe element “arising out of . . . [the] employment” relates to the causal connection \nbetween the claimant’s injury and his or her employment.  City of El Dorado v. Sartor, 21 \n\nSHELTON H004171 \n \n6 \n \nArk. App. 143, 729 S.W.2d 430 (1987).  An injury arises out of a claimant’s employment \n“when a causal connection between work conditions and the injury is apparent to the \nrational mind.”  Id. \n In Hudak-Lee  v.  Baxter  County  Reg.  Hosp.,  2011  Ark.  31,  378  S.W.3d  77,  the \nArkansas Supreme Court stated: \nIn order for an accidental injury to be compensable, it must arise out of and \nin  the  course of  employment.    Ark.  Code  Ann.  §  11-9-102(4)(A)(i)  (Supp. \n2009).  A compensable injury does not include an injury that is inflicted upon \nthe employee at a time when employment services are not being performed. \nArk.  Code  Ann.  §  11-9-102(4)(B)(iii) (Supp. 2009).  The phrase “in the \ncourse of employment” and the term “employment services” are not defined \nin  the Workers'  Compensation Act.  Texarkana Sch.  Dist.  v.  Conner,  373 \nArk. 372, 284 S.W.3d 57 (2008).  Thus, it falls to the court to define these \nterms in a manner that neither broadens nor narrows the scope of the Act.  \nId. \n \nAn employee is performing employment services when he or she is doing \nsomething  that  is  generally  required  by  his  or  her  employer.   Id.; Pifer  v. \nSingle  Source  Transp.,  347  Ark.  851,  69  S.W.3d  1  (2002).    We  use  the \nsame  test  to  determine  whether  an  employee  is  performing  employment \nservices as we do when determining whether an employee is acting within \nthe course and scope of employment.  Jivan v. Econ. Inn & Suites, 370 Ark. \n414, 260 S.W.3d 281 (2007).  The test is whether the injury occurred within \nthe time and space boundaries of the employment, when the employee was \ncarrying out the employer's purpose or advancing the employer's interest, \ndirectly or indirectly.  Id.  In Conner, 373 Ark. 372, 284 S.W.3d 57, we stated \nthat where it was clear that the injury occurred outside the time and space \nboundaries of employment, the critical inquiry is whether the interests of the \nemployer were being directly or indirectly advanced by the employee at the \ntime  of  the  injury.    Moreover,  the  issue  of  whether  an  employee  was \nperforming employment services within the course of employment depends \non the particular facts and circumstances of each case.  Id. \n \n If  the  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\nSHELTON H004171 \n \n7 \n \nArk. 373, 326 S.W.3d 415; Smith v. Magnet Cove Barium Corp., 212 Ark. 491, 206 S.W.2d \n442 (1947). \n The Respondents  contends  that  there  were  no  objective  findings  of  an  injury. \nHowever, in a recent case from the Arkansas Court of Appeals, Melius v. Chapel Ridge \nNursing Center, LLC, 2021 Ark. App. 61, 618 S.W.3d 410, the Court found appellant’s \ndiagnosis  of  muscle  strain  along  with  prescribed  treatment  of  medications,  physical \ntherapy, and pain management was sufficient to establish objective findings. Specifically, \nin Melius the Court of Appeals stated: \nAppellant was diagnosed with a strain of muscle, fascia, and tendon of right \nhip,  received  medication,  and  subsequently  was  referred  to  physical \ntherapy and a pain specialist for relief. What is disputed is whether appellant \npresented proof of objective medical evidence and whether the injury was \nwork  related.  Following  our  Supreme  Court  precedent,  we  agree  with \nappellant’s  argument  that  her  diagnosis  of  muscle  strain  along with \nprescribed treatment    of    medications,    physical    therapy,    and    pain \nmanagement  is  sufficient  to  establish objective  findings. See Fred’s, Inc., \n361  Ark.  258,  206  S.W.3d  238.  In Fred’s, Inc.,  no  physician,  or  physical \ntherapist reported witnessing or feeling Jefferson’s muscle spasms. Id. At \n262, 206 S.W.3d at 241. The doctor noted Jefferson’s work-related injury \n(falling off a ladder) in the medical record; diagnosed a muscle strain; and \nprescribed  Flexeril,  a muscle  relaxer,  pain  medication,  and  physical \ntherapy. Id. at 263, 206 S.W.3d at 242. Jefferson was also placed on limited \nwork duties and ordered not to engage in lifting more than ten pounds. Id. \nJefferson’s doctor did not indicate what the medications were for or state \nspecifically why he prescribed physical therapy. The Supreme Court held \nthat  it  was  reasonable  to  infer  from  the  chronology  of  events  that  the \nmedication  and  physical  therapy  were  prescribed  to  aid  Jefferson  and  to \ntreat  her  injury  and  that  medical  evidence  was  supported  by objective \nfindings. Id. \n \nThe instant case is similar to the Melius and Fred’s, Inc. cases. The Claimant was \ndiagnosed  with  strain  of  the  lumbar  region  for  which  medication  was  prescribed \nspecifically for muscle spasms. Moreover, as in the Fred’s case, the physicians  and \nphysical therapist in the instant claim noted Claimant’s work-related injury in the medical \n\nSHELTON H004171 \n \n8 \n \nrecords. The Claimant in the Fred’s Inc. case was also placed on limited work duties and \nordered not to lift more than ten pounds. The Claimant here was placed on restricted duty \nthen sedentary duty. Despite this, Respondents argue that Claimant’s back spasms must \neither  be  seen  on  an  x-ray  or  physically  felt  by  the  treating  medical  professional. \nRespondents, however,  have  not  acknowledged the  precedent  that  states there  is  no \nrequirement  under  Arkansas  law  that  a  doctor,  physical  therapist, or  other  medical \nprovider observe a patient having a muscle spasm before an employee’s injury can be \ncompensable. Melius,  2021  Ark.  App.  61,  618  S.W.3d  410  (citing Estridge  v.  Waste \nMgmt., 343 Ark. 276, 33 S.W.3d 167 (2000)).  \nTherefore, in keeping with the precedent from both the Arkansas Supreme Court \nand the Arkansas Court of Appeals, I find by the preponderance of evidence a diagnosis \nof  muscle  strain,  along  with  prescribed  medication for  pain  and  muscle  spasms, are \nsufficient   to   establish   objective   findings thereby  making  Claimant’s  back  injury \ncompensable. Considering this,  I  further  find  conclusively  that  Claimant  did  sustain  a \ncompensable injury to his back on June 25, 2020. I also find that a reasonable inference \nfrom  the  chronology  of  events in  this  matter,  i.e.  the  prescribed medications,  physical \ntherapy, and pain management were to aid Claimant and to treat his injury, including back \nspasms, and there was no evidence to the contrary. The Claimant testified to his back \nspasms, and I find by the preponderance of the evidence that his testimony was the most \ncredible. Finally, I do find by the preponderance of the evidence that Dr. Jay McDonald’s \nJune 27, 2023, signed letter stating that he has been treating Claimant for back spasms \nsince his work injury is credible. The next issue is whether Claimant is entitled to benefits.  \n\nSHELTON H004171 \n \n9 \n \nB. Whether Claimant is entitled to reasonably necessary medical care in relation \nto his compensable back injury of June 25, 2020? \n Arkansas  Code  Annotated  Section  11-9-508(a)  (Repl.  2012)  states  that  an \nemployer  shall  provide  for  an  injured  employee  such  medical  treatment  as  may  be \nnecessary in connection with the injury received by the employee.  Wal-Mart Stores, Inc. \nv. Brown, 82 Ark. App. 600, 120 S.W.3d 153 (2003).  But employers are liable only for \nsuch treatment and services as are deemed necessary for the treatment of the claimant’s \ninjuries.  DeBoard v. Colson Co., 20 Ark. App. 166, 725 S.W.2d 857 (1987).  The claimant \nmust prove by a preponderance of the evidence that medical treatment is reasonable and \nnecessary for the treatment of a compensable injury.  Brown, supra; Geo Specialty Chem. \nv. Clingan, 69 Ark. App. 369, 13 S.W.3d 218 (2000).  What constitutes reasonable and \nnecessary   medical   treatment   is   a  question   of  fact  for   the   Commission.   White \nConsolidated  Indus.  v.  Galloway,  74  Ark.  App.  13,  45  S.W.3d  396  (2001); Wackenhut \nCorp. 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 additional \ntreatment  even  after  the  healing  period  has  ended,  if  said  treatment  is  geared  toward \nmanagement of the injury.  See Patchell v. Wal-Mart Stores, Inc., 86 Ark. App. 230, 184 \nS.W.3d 31 (2004); Artex Hydrophonics, Inc. v. Pippin, 8 Ark. App. 200, 649 S.W.2d 845 \n(1983).  Such services can include those for the purpose of diagnosing the nature and \nextent  of  the  compensable  injury;  reducing  or  alleviating  symptoms  resulting  from  the \ncompensable  injury;  maintaining  the  level  of  healing  achieved;  or  preventing  further \ndeterioration of the damage produced by the compensable injury.  Jordan v. Tyson Foods, \nInc., 51 Ark. App. 100, 911 S.W.2d 593 (1995); Artex, supra. \n\nSHELTON H004171 \n \n10 \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’s \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.  Id.  \nIn so doing, the Commission is not required to believe the testimony of the claimant or \nany other witness but may accept and translate into findings of fact only those portions of \nthe testimony that it deems worthy of belief.  Id. \nThere is no evidence that has been presented to show that any of the Claimant’s \ntreatments  were  unnecessary or  unreasonable,  including  the  recommendation  for  a \npsychological   evaluation   and   spinal   cord   stimulator.   Therefore,   I   find   by   the \npreponderance  of  the  evidence  that  all  of  Claimant’s  previously  denied  medical \nrecommendations were reasonable and necessary to treat his work related back injury, \nincluding the psychological evaluation and spinal cord stimulator. The Respondents shall \npay for these necessary and reasonable treatments.  \nC. Whether Claimant has sustained compensable back injury on June 25, 2020, \nand is entitled to appropriate benefits associated therewith? \nTemporary total disability for unscheduled injuries is that period within the healing \nperiod in which the Claimant suffers total incapacity to earn wages. Ark. State Highway \nand Transportation Dept. v. Brehears, 272 Ark. 244, 613 S.W.2d 392 (1981). The healing \nperiod ends when the underlying condition causing the disability has become stable and \nnothing further in the way of treatment will improve that condition. Mad Butcher, Inc. v. \nParker,  4  Ark.  App.  124,  628  S.W.2d  582  (1982). Claimant  continues  to  go  through \n\nSHELTON H004171 \n \n11 \n \ntreatment for his back to improve his final condition. No evidence has been presented to \nshow that these efforts will not improve Claimant’s final condition. Claimant has missed \nlarge  amounts  of  work  since  his June 25,  2020, back injury. Thus, I  find  by  the \npreponderance of evidence that Claimant is entitled to temporary total disability from June \n25, 2020, to a date to be determined when he is stable or has reached maximum medical \nrecovery. This excludes any benefit amounts voluntarily paid by Respondents before the \nfiling date of this opinion. \nATTORNEY FEES \nOne of the purposes of the attorney's fee statute is to put the economic burden of \nlitigation on the party who makes litigation necessary.  Brass v. Weller, 23 Ark. App. 193, \n745 S.W.2d 647 (1998).  Under Ark. Code Ann. § 11-9-715 (Repl. 2012): \n(B) Attorney’s fees shall be twenty-five percent (25%) of compensation for \nindemnity  benefits  payable  to  the  injured  employee  or  dependents  of  a \ndeceased employee . . . In all other cases whenever the commission finds \nthat a claim has been controverted, in whole or in part, the commission shall \ndirect that fees for legal services be paid to the attorney for the claimant as \nfollows:  One-half (½) by the employer or carrier in addition to compensation \nawarded;  and  one-half  (½)  by  the  injured  employee  or  dependents  of  a \ndeceased employee out of compensation payable to them. \n \n Discussion.    The  evidence  before  me  clearly  shows  that  Respondents  have \ncontroverted Claimant’s entitlement to additional indemnity benefits.  Thus, the evidence \npreponderates that his counsel, the Hon. Andy Caldwell, is entitled to the fee as set out \nabove for all indemnity benefits that should have been paid consistent with this opinion \nand in compliance with the Arkansas Workers’ Compensation Act. \nCONCLUSION \n Respondents  are  hereby  directed  to pay/furnish  benefits  in  accordance  with  the \nfindings of fact and conclusions of law set forth above.  All accrued sums shall be paid in \n\nSHELTON H004171 \n \n12 \n \na lump sum 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 IT IS SO ORDERED. \n       ________________________________ \n       Hon. Steven Porch \n                                                                           Administrative Law Judge","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H004171 JOSHUA SHELTON, EMPLOYEE CLAIMANT NUCOR YAMATO STEEL CO., EMPLOYER RESPONDENT ARCH INSURANCE COMPANY, CARRIER RESPONDENT ARCH INSURANCE COMPANY, THIRD PARTY ADMINISTRATOR RESPONDENT OPINION FILED AUGUST 21, 2023 Hearing before Administrative Law Judge...","fetched_at":"2026-05-19T23:04:13.822Z","links":{"html":"/opinions/alj-H004171-2023-08-22","pdf":"https://labor.arkansas.gov/wp-content/uploads/Shelton_Joshua_H004171_20230822.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}