{"id":"alj-H005899-2023-05-04","awcc_number":"H005899","decision_date":"2023-05-04","opinion_type":"alj","claimant_name":"Cheryl Green","employer_name":"Wabash Wood Products","title":"GREEN VS. WABASH WOOD PRODUCTS AWCC# H005899 MAY 4, 2023","outcome":"denied","outcome_keywords":["dismissed:1","denied:2"],"injury_keywords":["shoulder","cervical","thoracic","lumbar","rotator cuff","back","neck","herniated"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/GREEN_CHERYL_H005899_20230504.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"GREEN_CHERYL_H005899_20230504.pdf","text_length":14267,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO.  H005899 \n \nCHERYL GREEN, Employee                                                                           CLAIMANT \n \nWABASH WOOD PRODUCTS,  Employer                                               RESPONDENT                         \n \nSENTRY INSURANCE COMPANY, Carrier                                              RESPONDENT \n \n \n \n OPINION FILED MAY 4, 2023 \n \nHearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in  Harrison, \nBoone County, Arkansas. \n \nClaimant appearing pro se. \n \nRespondents represented by JARROD PARRISH, Attorney, Little Rock, Arkansas. \n \n \n \n STATEMENT OF THE CASE \n  \n On  April  6,  2023,  the  above  captioned  claim  came  on  for  hearing  at  Harrison, \nArkansas.    A  pre-hearing  conference  was  conducted  on  February  1,  2023  and  a  pre-\nhearing  order  was  filed  on  that  same  date.    A  copy  of  the  pre-hearing  order  has  been \nmarked as Commission’s Exhibit #1 and made a part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1.   The Arkansas Workers’ Compensation Commission has jurisdiction of the \nwithin claim. \n 2.   The claimant sustained a compensable injury to her left shoulder on June 18, \n2020. \n At the pre-hearing conference the parties agreed to litigate the following issues: \n\nGreen – H005899 \n \n2 \n \n1.  Compensability of injuries to claimant’s spine and brain on June 18, 2020. \n2.   Related medical. \n3.   Temporary total disability benefits. \n4.    Compensation rate. \nThe claimant contends that in addition to her left shoulder injury she also suffered \ncompensable  injuries  to  her  spine  (all  three  levels)  and  to  her  brain.    She  requests \npayment of related medical benefits and temporary total disability benefits. \nThe respondents contend that all appropriate benefits have been paid in this claim.  \nRespondents have not controverted claimant’s entitlement to benefits associated with her \nleft shoulder.  Claimant has not suffered compensable injuries to her brain or any part of \nher spine.  To the extent claimant can establish compensability of any injury to her spine, \nthe treatment with Dr. Gocio is not reasonable, necessary, and causally related to any \nacute  work-related  event  occurring  at  Wabash.    Claimant’s  claim  for  temporary  total \ndisability  benefits  is barred  by  the  fact  that any off  work  status  she may have  endured \nwas  not  causally  related  to  any  work  injury  accepted  or  alleged.    Respondents \naccommodated any restrictions claimant presented them with any she did not return to \nmodified duty work when offered.  Claimant’s current problems, if any, are a result of a \nnew accident or onset of symptoms occurring while she worked at Pace Industries. \n From a review of the record as a whole, to include medical reports, documents, \nand other matters properly before the Commission, and having had an opportunity to hear \nthe testimony of the witnesses and to observe their demeanor, the following findings of \nfact and conclusions of law are made in accordance with A.C.A. §11-9-704: \n \n\nGreen – H005899 \n \n3 \n \n  FINDINGS OF FACT & CONCLUSIONS OF LAW \n \n1.  The stipulations agreed to by the parties at a pre-hearing conference conducted  \non February 1, 2023 and contained in a pre-hearing order filed that same date are hereby \naccepted as fact.    \n 2.   Claimant has failed to meet her burden of proving by a preponderance of the \nevidence  that  she  suffered  compensable  injuries  to  her  brain,  cervical  spine,  thoracic \nspine, or lumbar spine on June 18, 2020.  \n \n FACTUAL BACKGROUND \n Claimant is a 41-year-old woman with some college credit.  She testified that she \nbelieves she began working for respondent in October 2019.  At some point, she put in a \nbid for repair specialist and was placed in that position.  Claimant was performing this job \nat the time of her accident on June 18, 2020, when she was struck by a heavy wooden \nboard.  Respondent has accepted a compensable injury to claimant’s shoulder in the form \nof a rotator cuff tear.  Claimant underwent surgery by Dr. Christopher Arnold to repair the \ntear on September 10, 2021.   \n Claimant has filed this claim contending that in addition to the left shoulder, she \nalso suffered injuries to her brain, cervical spine, thoracic spine, and lumbar spine.  She \nis  requesting  payment  of  medical  expenses  for  those  conditions  as  well  as  disability \nbenefits for time missed from work. \n \nADJUDICATION \nClaimant contends that in addition to her compensable left shoulder injury, she  \n\nGreen – H005899 \n \n4 \n \nalso suffered compensable injuries to her brain, cervical spine, thoracic spine, and lumbar \nspine on June 18, 2020.  Claimant’s claim is for a specific injury, identifiable by time and \nplace of occurrence.  Arkansas workers’ compensation law requires that in order to prove \na compensable injury as a result of a specific incident, identifiable by time and place of \noccurrence, the claimant must establish four things by a preponderance of the evidence:   \n  (1)  an injury arising out of and in the course of employment; \n(2)  that the injury caused internal or external harm to the body \nthat required medical services or resulted in disability or death; \n \n (3) medical evidence supported by objective findings, as \n defined in A.C.A. §11-9-102(16), establishing the injury; and, \n \n (4)  that the injury was caused by a specific incident identifiable \n by time and place of occurrence.  \n \nA.C.A. §11-9-102(4)(A)(i); McCutchen v. Human Development \nCenter, 2018 Ark. App. 239. \n \n \n Preponderance  of  the  evidence  means  the  evidence  having  greater  weight  or \nconvincing force.  Metropolitan National Bank v. La Sher Oil Co., 81 Ark. App. 269, 101 \nS.W. 3d 252 (2003).   \n After reviewing the evidence in this case impartially, without giving the benefit of \nthe doubt to either party, I find that claimant has failed to meet her burden of proof.   \n First, I find that claimant has failed to prove by a preponderance of the evidence \nthat she suffered a compensable injury to her brain on June 18, 2020.  I note that claimant \nhas acknowledged that prior to June 18, 2020 she had been  diagnosed as bipolar with \ndepression  and  had  been  seeking  mental  health  counseling.    I  also note  that  claimant \nacknowledged that she does not know if she suffered an injury to her brain on June 18, \n\nGreen – H005899 \n \n5 \n \n2020,  but  was  making  that  claim  because  Dr.  Keegan  had  indicated  that  she  had.  \nTestimony  regarding  statements  made  by  Dr.  Keegan  are  hearsay  and  not  credible \nevidence.  No medical reports from Dr. Keegan are in evidence and there is no medical \nevidence  supported  by  objective  findings  establishing  an  injury  to  claimant’s  brain.  \nTherefore,   I  find  that   claimant  has  failed   to  meet   her   burden   of   proving   by  a \npreponderance of the evidence that she suffered a compensable injury to her brain on \nJune 18, 2020.   \n Claimant  also  contends  that  she  suffered  compensable  injuries  to  her  cervical \nspine, thoracic spine, and lumbar spine on June 18, 2020.  Claimant has received medical \ntreatment  from  Dr.  Allan  Gocio  for  her  spine.    In  a  report  dated  March  18,  2021,  he \nindicated  that  an  MRI  scan  of  claimant’s  cervical  spine  showed  moderate  to  severe \nspondylosis C5-6 with spinal stenosis.  Dr. Gocio recommended surgery in the form of an \ninterior  cervical  discectomy  fusion  at  C5-6  and  he  performed  that  surgery  on  April  20, \n2021.   \n Medical  records  submitted  by  the  respondent  indicate  that  claimant  has  an \nextensive history of chronic pain involving her spine.  Medical records as far back as July \n1,  2013  refer  to  chronic  neck  pain.    In  an  emergency  room  report  dated  July  1,  2013, \nclaimant  was  complaining  of  headaches  that  she  felt  were  related  to  her  chronic neck \npain caused by a prior injury.   \n On August 8, 2013, claimant was evaluated by Dr. Ronald Tilley with complaints \nof  pain  in  her  neck,  lower  back,  and  mid-back.    He  indicated  that  claimant  reported  a \nwork-related injury at Tyson and also a remote history of multiple car accidents that had \naggravated  lower  back  pain.    He  also  stated  that  claimant  had  been experiencing  this \n\nGreen – H005899 \n \n6 \n \npain for two years and that on average her pain rated 6/10 with a rating of 9/10 on that \nparticular day.  Dr. Tilley’s report also states the following: \n \n  When she was injured on the job she underwent cervical \n  MRI which showed herniated disc at c5-c6.  She was \n  supposed to undergo physical therapy and possible \n  injection therapy, but then was lost to follow up. \n \n \n This  is  the  same  location  upon  which  Dr.  Gocio  performed  surgery  on  April  20, \n2021.   \n In  his  report  of  October  23,  2013,  Dr.  Tilley  indicated  that  claimant  was  having \nlower  back  pain that was  radiating down  her  left  leg  into  her  foot.   He  also  stated  that \nclaimant had injections in the past that were not successful.  Dr. Tilley treated claimant \nwith hydrocodone. \n Subsequent  medical  reports  from  Interventional  Pain  Clinic  and  the  emergency \nroom  indicate  that  claimant  continued  to  have  complaints  of  chronic  pain  involving  her \nspine  for  which  she  sought  pain  medication.    Dr.  Tilley  even  gave  claimant  a  cervical \nepidural steroid injection on May 27, 2014.   \n On June 24, 2014, claimant was seen in the emergency room complaining of back \npain and requesting pain medication and Xanax.  On June 27, 2014, claimant was seen \nin the emergency room complaining of neck pain following a fall  down stairs.  On June \n30, 2014, claimant was seen in the emergency room complaining of low back pain and \nrequesting pain medication.   \n An ambulance report dated September 4, 2014 indicates that claimant was found \nsitting partially in a vehicle that had overturned with complaints of head and neck pain.  A \n\nGreen – H005899 \n \n7 \n \ncervical collar was applied.  On April 15, 2015, claimant was seen in the emergency room \nwith complaints that included neck pain following an alleged assault and requesting pain \nmedication. \n While it is clear that claimant had a pre-existing history of complaints involving her \ncervical, thoracic, and lumbar spine, claimant can still prevail if she can prove that those \npre-existing conditions were aggravated by the incident on June 18, 2020.  However, an \naggravation is a new injury resulting from an independent incident, so it  must meet the \ndefinition of a compensable injury in order to establish compensability for the aggravation.  \nGreen County Judge v. Penney, 2019 Ark. App. 552, 589 S.W. 3d 478.   \n June 18, 2020 was a Thursday and claimant was not scheduled to work on Friday.  \nClaimant  went  back  to  work  on  Monday  and  went  to  report  her  problems  to Corey \nJackson.    At  the  hearing  claimant  testified  that  she  did  not  remember  whether she \nmentioned having neck pain to Jackson at that time.  She also acknowledged that at her \ndeposition she testified that she did not mention neck pain to Jackson when she spoke to \nhim because at that time only her shoulder was hurting. \n The first medical report following the  June 18, 2020 incident is a report from Dr. \nJackson dated June 22, 2020, in which claimant is diagnosed with acute pain of the left \nshoulder.  Notably, there is no mention of any complaints of pain involving the cervical, \nthoracic, or lumbar spine.   \n Claimant  did  eventually  make  those  complaints  and  underwent  surgery  on  her \ncervical spine by Dr. Gocio.  However, as previously noted, his surgery was at the same \nlevel (C5-6) as claimant’s prior complaints.  Additionally, I note that claimant admitted that \nshe did not inform Dr. Gocio about her prior spine complaints. \n\nGreen – H005899 \n \n8 \n \n In short, I believe that claimant believes that she injured her brain, cervical spine, \nthoracic spine, and lumbar spine as a result of the incident on June 18, 2020.  However \nsincere  that  belief,  belief  by  itself  is  not  sufficient.    Instead,  Arkansas  workers’ \ncompensation law states that claimant has the burden of proving by a preponderance of \nthe evidence that she suffered a compensable injury to her cervical, thoracic, and lumbar \nspine on June 18, 2020.  I find based on the evidence presented that claimant has failed \nto  meet  that  burden  of  proof.    The  medical  evidence  contains  an  extensive  history of \nchronic pain involving claimant’s spine for which she has sought medical treatment and \npain  medication.    This  history  includes  prior  work  injuries,  motor  vehicle  accidents, \npersonal accidents, and assaults.  Following the incident on June 18, 2020 claimant did \nnot mention any injury to Jackson other than her left shoulder.  Likewise, at the time of \nher first medical treatment on June 22, 2020 claimant only mentioned left shoulder pain \nwith no mention of her brain or any part of her spine.  While claimant did undergo surgery \non her cervical spine, the surgery was performed at the same location as claimant’s prior \ncomplaints.  I do not find based on the evidence that claimant has proven that her prior \ncervical,  thoracic,  or  lumbar  complaints  were  aggravated  by  the  incident  on  June  18, \n2020.  Therefore, she has failed to prove a compensable injury to the cervical, thoracic, \nor lumbar spine.           \n \nORDER \n \n Claimant  has  failed  to  meet  her  burden  of  proving  by  a  preponderance  of  the \nevidence  that  she  suffered  a  compensable  injury  to  her  brain,  cervical  spine,  lumbar \nspine,  or  thoracic  spine  on  June  18,  2020.      Therefore,  her  claim  for  compensation \n\nGreen – H005899 \n \n9 \n \nbenefits is hereby denied and dismissed. \n Respondent is liable for payment of the court reporter’s charges for preparation of \nthe hearing transcript. \n IT IS SO ORDERED. \n \n \n      _____________________________________ \n       GREGORY K. STEWART \n       ADMINISTRATIVE LAW JUDGE","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H005899 CHERYL GREEN, Employee CLAIMANT WABASH WOOD PRODUCTS, Employer RESPONDENT SENTRY INSURANCE COMPANY, Carrier RESPONDENT OPINION FILED MAY 4, 2023 Hearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Harrison, Boone County, Arkansas. Claimant...","fetched_at":"2026-05-19T23:07:13.738Z","links":{"html":"/opinions/alj-H005899-2023-05-04","pdf":"https://labor.arkansas.gov/wp-content/uploads/GREEN_CHERYL_H005899_20230504.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}