{"id":"alj-H007376-2023-10-12","awcc_number":"H007376","decision_date":"2023-10-12","opinion_type":"alj","claimant_name":"Kimberly Morehead","employer_name":"O. K. Foods Inc","title":"MOREHEAD VS. O. K. FOODS INC. AWCC# H007376 OCTOBER 12, 2023","outcome":"granted","outcome_keywords":["granted:4"],"injury_keywords":["back","hip","lumbar"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/MOREHEAD_KIMBERLY_H007376_20231012.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"MOREHEAD_KIMBERLY_H007376_20231012.pdf","text_length":24838,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO. H007376 \n \nKIMBERLY MOREHEAD, Employee                                                                       CLAIMANT \n \nO. K. FOODS INC., Self-Insured Employer                                                           RESPONDENT \n \n \n \n OPINION FILED OCTOBER 12, 2023 \n \nHearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Fort Smith, Sebastian \nCounty, Arkansas. \n \nClaimant represented by TANNER THOMAS, Attorney, Little Rock, Arkansas. \n \nRespondent represented by R. SCOTT ZUERKER, Attorney, Fort Smith, Arkansas. \n \n \n STATEMENT OF THE CASE \n  \n On August 1, 2023, the above captioned claim came on for a hearing at Fort Smith, Arkansas.  \nA pre-hearing conference was conducted on June 1, 2023 and a pre-hearing order was filed on that \nsame date.  A copy of the pre-hearing order has been marked as Commission’s Exhibit #1 and made \na 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 this claim. \n 2.   The employee/employer/carrier relationship existed on August 19, 2020. \n 3.   The respondent has controverted the claim in its entirety. \n At the pre-hearing conference the parties agreed to litigate the following issues: \n1.  Whether claimant sustained a compensable injury on August 19, 2020. \n2.  If compensable, compensation rate. \n3.  If  compensable,  whether  claimant  is  entitled  to  medical  benefits  and  temporary  total          \n\nMorehead-H007376 \n2 \n \n disability benefits. \n4. Attorney’s fees. \nHowever, at the beginning of the hearing, the parties stipulated that the claimant’s average \nweekly wage was $529.80, which yields a temporary total disability rate of $353.00.  \nAll other issues are reserved by the parties. \nThe claimant contends that “On August 19, 2020, claimant was in the scope and course of \nemployment when she slipped and fell, sustaining injury to her mid and low back. Respondent denied \nthe claim in its entirety and claimant sought treatment on her own. An MRI revealed a disk protrusion \nat  T12-L1  and  L4-5.  Claimant  contends  that  she  sustained  a  compensable  injury  in  the  scope  and \ncourse of employment and that she is entitled to temporary total disability, medical benefits, and that \nher attorney is entitled to an attorney’s fee. All other issues are reserved.” \nThe respondent contends that “Claimant did not sustain a compensable injury as that term is \ndefined by Act 796.”   \n From a review of the entire record, including medical reports, documents, and other matters \nproperly before the Commission, and having had an opportunity to hear the testimony of the claimant \nand  to  observe  her  demeanor,  the  following  findings  of  fact  and  conclusions  of  law  are  made  in \naccordance with A.C.A. §11-9-704: \n \n  FINDINGS OF FACT & CONCLUSIONS OF LAW \n \n 1.   The stipulations agreed to by the parties at a pre-hearing conference conducted on June 1, \n2023, and contained in a pre-hearing order filed that same date are hereby accepted as fact. \n 2.    Claimant has met her burden of proving that she suffered a compensable injury to her \nback and hip on August 28, 2020.  However, this injury was not reported before September 15, 2020.  \n \n\nMorehead-H007376 \n3 \n \n \n3. Respondent is liable for payment of all reasonable and necessary medical treatment provided \nin connection with claimant's compensable injuries after September 15, 2020. \n4.  Claimant  is  entitled  to  temporary  total  disability  benefits  beginning  September  15,  2020, \nthrough November 23, 2020. \n5. Respondent has controverted claimant's entitlement to all unpaid indemnity benefits. \n FACTUAL BACKGROUND \n At the beginning of the hearing, the parties stipulated that the claimant’s average weekly wage \nwas $529.80, which yields a temporary total disability rate of $353.00.  That stipulation was accepted, \nand that issue was removed from my consideration in this opinion. \nHEARING TESTIMONY \n \n       Claimant was the only witness at this hearing. She testified that she was working at O.K. Foods \nin August 2020 when she injured her back while working as a manifester. That job entails working \nwith a scale, weighing packaged products, and printing the ticket to go on the side of the product. The \nscale claimant was working with was a floor scale, and she estimated that it was six feet by six feet. On \nAugust 19, 2020, claimant testified that she slid on some metal that was around the scale. It was wet \nand became slick, causing her to fall forward onto her hands and knees. She described it as “like a \nbaby crawling.” At the time, she felt a tweak in her back; it didn’t hurt, but she felt something was not \nright.  The  person  that  put  the  product  on  the  scale  tried  to  assist  her,  but  claimant  declined  his \nassistance at first.  He eventually did help claimant to her feet, and she then went to the nurse to report \nthe  incident.  At  the  time,  claimant  was  not  in  pain,  but  believed  it  needed  to  be  reported  in  case \nsomething happened later.  \n Claimant  testified  that  the  incident  happened  on  Wednesday,  August  19,  2020.  Claimant \ncontinued to work that week as well as the next week until August 28, when her hip was hurting so \n\nMorehead-H007376 \n4 \n \n \nmuch, she told her boss that she was going to go home and rest. However, resting over the weekend \ndid not make her hip any better. She testified that when she got out of bed on that morning, she could \nhardly walk to the bathroom and believed something was “really bad wrong with my hip.”  Claimant \nwent to the emergency room on August 31, 2020. She testified that the examination consisted of the \ndoctor pushing a finger into her side. The record from the emergency room reflected that she had a \ndiagnosis of trochanteric bursitis of the left hip. \n Claimant  testified  that  she  went  to  get  the  medication  that  the  emergency  room  doctor \nprescribed for her, and she was in great pain as she walked into the Walmart pharmacy to pick up her \nprescription. When she learned that the prescription wasn’t ready, she returned to her car to wait to \nbe called when the medication was ready because she couldn’t stand there to wait for it. She then had \na tele-health conference with Dr. Terri Lewelling and an in-office visit was scheduled for September \n3,  2020.  Dr.  Lewelling  took  claimant  off  work  until  at  least  September  8,  2020,  but  Dr.  Lewelling \nextended that until claimant returned to work on November 23, 2020. During the time claimant was \ntreated by Dr. Lewelling, she had a CT scan and an MRI.  Claimant was not sure if she went to the \nnurse’s station at work and made a report of an injury after the CT scan or the MRI.\n1\n Claimant said \nthat  the  person  she  talked  to  denied  the  claim.  Following  that  denial,  claimant  stayed  with  Dr. \nLewelling and underwent a course of physical therapy. Claimant said that the physical therapy worked \nvery well, causing her pain to subside. Although surgery had been suggested, claimant determined that \nshe did not want to go through with it. As of the date of the hearing, she said that she felt better, as \nthe pain was not that bad. Claimant said she still has a little bit of pain in her left side and numbness \n \n1\n Claimant’s testimony when asked if she reported this before or after the MRI to someone named Carol, who was \nover the workers’ compensation claims, was “I don’t know for sure.  I’m going to say it was probably after, but I am \nnot really sure.  It had to have been probably after the CAT [sic] scan, but before the MRI, maybe.  I don’t really know \nfor sure.  I am sorry.” \n\nMorehead-H007376 \n5 \n \n \nin her leg, but it has gotten better as she does the physical therapy at home. \n On cross-examination, claimant said that she was working six days a week, Monday through \nSaturday. She related an injury that she had on May 10, 2021, which was also a back injury, but it was \naccepted  by  O.K.  Foods  as  compensable.  Claimant  explained  that  Dr.  Lewelling  did  not  properly \nrecord what she said about walking into Walmart and being in pain, because that is not when her pain \nstarted. She admitted that when she reported the incident on August 19, 2020, to the plant nurse, she \ndenied needing any medical care because she wasn’t hurting. The next time she told anyone at O.K. \nFoods that she had hurt her back at work was after the MRI. Claimant said she didn’t realize that the \nfall on August 19, 2020, had anything to do with her hip hurting. When asked if she reported this as a \nworkers’ compensation claim because of the bill that she was going to receive from the MRI, claimant \nthought her health insurance would pay for it. For an unexplained reason, it did not pay for any of her \ntreatment related to her fall, even after workers’ compensation denied the claim;  however,  Dr. \nLewelling is free for the people that work at O.K. Foods.  \n The following exchange took place between claimant and respondent’s counsel: \nQ. (by Mr. Zuerker) But roughly in that time period, the 24th, okay up until \nthe time you went to talk to Carol, after either the CT or the MRI, did you \ntell anybody that you were missing work because of a job-related injury? \nA (by claimant) No, I didn’t realize that it was a job-related injury. \n \nQ.  Okay.  And  using  those  same  dates,  either  the  MRI  or  CT,  somewhere \naround September 24, up until the point you had that conversation with Carol \nin  September,  did  you  ask  anyone  at  O.K.  Foods  to  provide  you  medical \ntreatment for a job-related injury? \nA. No. Not that I know of. \n \nQ. In fact, when you reported it the day it happened the nurse asked you if \nyou needed medical care, didn’t she? \nA. Yes. She asked if I needed Tylenol or Ibuprofen. \n \nQ. And you told her no? \nA. I said no, that I wasn’t in a lot of pain. \n  \n\nMorehead-H007376 \n6 \n \n \n On redirect-examination, claimant said the pain got gradually worse each day after she fell. On \nAugust 28, 2020, the day that she left work early, she said the pain was probably nine out of ten and \nthen it would have been ten out of ten the following Monday when she went to the emergency room. \nClaimant thought the hours that she was working contributed to some of her issues.  \nREVIEW OF THE EXHIBITS \n \n Claimant  first  went  to  the  emergency  room  on  August  31, 2020,  and  was  diagnosed  with \ntrochanteric bursitis of her left hip. There was no mention of any x-ray or other radiographic testing. \nThe history recorded by Dr. James Russell stated “This is a new problem. The current episode started \ntwo days ago. The problem occurs constantly. The problem has not changed since onset. Pertinent \nnegatives include no chest pain, no abdominal pain, and no headaches. The symptoms are aggravated \nby  walking.  The  symptoms  are  relieved  by  heat  and  lying  down”.  Claimant  was  given  some \nprescriptions and then consulted with her primary care provider, Dr. Terri Lewelling. This was a tele-\nhealth visit and Dr. Lewelling conducted no physical examination of claimant.  \n On  September  3, 2020, claimant went to Dr. Lewelling’s office and was examined. Dr. \nLewelling mentioned the trochanteric bursitis diagnosis from the emergency room but added that she \nbelieved the claimant had lumbar radiculopathy. I do not see that Dr. Lewelling arrived at the diagnosis \nof bursitis on her own during that visit. \n Claimant  had  a  tele-medicine  visit  on  September  10, 2020,  with  Dr.  Lewelling  in  which \nclaimant reported that her hip pain was not better and was radiating down her left leg. Dr. Lewelling \nadded gabapentin to her list of medications.  \n On  September  14, 2020,  there  was  yet  another  tele-medicine  visit,  and  it  appears  that  the \nmention of trochanteric bursitis is only made in reference to the emergency room visit of August 31, \n2020. Due to the deteriorating nature of claimant’s condition, Dr. Lewelling ordered a CT scan of \n\nMorehead-H007376 \n7 \n \n \nclaimant’s lumbar spine. \n The CT scan was conducted on September 15, 2020, with the following impression: \n1. Central  left  lateral  protrusion  at  L4-5  with  facet  hypertrophy,  left  foraminal \nstenosis, and mild canal stenosis. \n2. Calcified  spur/disc  protrusion  at  T12-L1  with  mild  to  moderate  thecal  sac \ncompression. \n3. Additional findings as above. \n \nThe  above  findings  would  include  L5-S1,  central  bulge,  probably  small  central  protrusion \nslightly abutting the ventral thecal sac and S1 nerve roots.   \nDr. Lewelling had a tele-medicine conference with claimant on September 16, 2020, and after \nhaving reviewed the CT scan results, Dr. Lewelling believed that she might need a referral to a surgeon. \nIn this note, Dr. Lewelling recorded the following: “possible accident or event leading to this pain; fell \nat work nine days before she had sx; reports that were not classified as workers’ comp per patient have \nbeen denied. She landed forward on knees and palms; she fell forward, and reports hurt lower part of \nher back and reported it to the night nurse.” Claimant was referred to physical therapy and there was \na referral to spine surgery which included an MRI, which was  performed September 24, 2020. The \nimpression was: \n1. Mild element hypertrophy L4-5 with central to left sicec disc protrusion narrowing \nthe left lateral recess and foramen. \n2. Central disc protrusion T12-L1 with mild canal stenosis. \nAfter  the  MRI,  claimant  again  had  a  tele-health  conference  with  Dr.  Lewelling.  After  Dr. \nLewelling received the results of the MRI, she called claimant to give her the results of the MRI and \nnoted that claimant was already referred to a surgeon for evaluation.  \nDr. Lewelling had another tele-medicine visit with claimant on October 5,  2020, which was \nprimarily to take claimant off work for another week, as was the tele-medicine visit on October 12, \n2020. On October 21, 2020, Dr. Lewellen reported that claimant had been doing physical therapy for \n\nMorehead-H007376 \n8 \n \n \ntwo weeks and felt like it was helping. \nOn  November  4,  2020,  claimant  had  yet  another  tele-medicine  appointment  with  Dr. \nLewelling and reported that she was having no pain currently but still some numbness in the left lower \nextremity.  She  was  to  follow  up  in  two  weeks  to  be  evaluated  to  return  to  work.  During  the  tele-\nmedicine visit of November 18, 2020, claimant was given a note to return to work on November 23, \n2020. She was released to follow up with Dr. Lewelling as needed. \nDEPOSITION TESTIMONY \n Respondent submitted the claimant’s deposition, which was taken on June 27, 2023.  Little in \nit differed from claimant’s testimony at the hearing.  She did, however, explain in more detail how she \ncame to realize that the fall she thought was nothing more than a “tweak” in her back was the source \nof her hip pain:   \nQ. (by Mr. Zuerker) Did you go to work the next day (R. Ex. 2, page 24) \nA. (by claimant) No. They had me off three days with the medication I was \ntaking, but it did not-- it didn't do nothing for me. That's when I went down \nto the O.K. Foods Clinic. \n \nQ.  After three days? \n A.  After three days.  I believe it was three days.  \n \nQ. What did they do for you at the clinic? \nA.  I told her about me going to the emergency room and he told me it was \nbursitis and the medicine wasn't working. When she asked me to explain to \nher the symptoms I was having and when I told her that, you know, this leg \nwas feeling kind of numb, my left leg was feeling numb, she said I think you \nhave a pinched nerve. So, she referred me to get a CAT scan and an MRI. \n \nQ. Okay. \nA.  And when that came back, she said-- I mean she told me that it came back \nI had a pinched nerve. \n \nQ. Up to that point, had you talked to anyone at O.K.  about this being related \nto your fall? \nA.  No, because I wasn't thinking it had anything to do with the  fall. That's \nwhen she said to me you must have fell or something. and I said, oh my God, \nI did like almost two weeks ago. I fell at work and she says I then--- I may not \n\nMorehead-H007376 \n9 \n \n \nbe able to see you if that's the case.\n2\n (R. X. 2, page 25)       \n \nADJUDICATION \n \nTo  prove  a  compensable  injury,  the  claimant  must  establish  by  a  preponderance  of  the \nevidence:  (1)  an  injury  arising  out  of  and  in  the  course  of  employment;  (2)  that  the  injury  caused \ninternal or external harm to the body which required medical services or resulted in disability or death; \n(3) medical evidence supported by objective findings, as defined in Ark. Code Ann. § 11-9-102(16) \nestablishing the injury; and (4) that the injury was caused by a specific incident and identifiable by time \nand place of occurrence. If the claimant fails to establish any of the requirements for establishing the \ncompensability of the claim, compensation must be denied. Mikel v. Engineered Specialty Plastics, 56 Ark. \nApp. 126, 938 S.W.2d 876 (1997).  \nThe question in this case is whether claimant injured herself at work on August 19, 2020, when \nshe  fell  forward  onto  her  hands  and  knees.  The  other  three  factors  were  amply  established  by  the \nevidence.  The medical records show that there was a disc protrusion in her spine at L-4-5; that is an \nobjective  finding  of  internal  harm  to  her  body.    Claimant  identified  the  time  and  place  of  the \noccurrence, even reporting the incident to the nurse on duty as a twinge in her back, but she did not \nthink it was anything serious.   \nThat leaves the question as to whether the injury arose from the course of her employment, \nand if so, at what point did it become compensable. In order to prove a compensable injury a claimant \nmust  prove,  among  other  things,  a  causal  relationship  between  the  injury  and  the  employment. \nMcMillan  v.  U.S.  Motors,  59  Ark.  App.  85,  953  S.W.2d  907  (1997).  Objective  medical  evidence  is \nnecessary  to  establish  the  existence and  extent  of  an  injury  but  not  essential to  establish  the causal \n \n2\n By way of  context, claimant explained at the hearing that the employees of  O.K.  Foods could see Dr. Lewelling as a \nbenefit of working there.    \n\nMorehead-H007376 \n10 \n \n \nrelationship  between  the  injury  and a  work-related accident. Wal-Mart  Stores, Inc.  v.  VanWagner,  337 \nArk. 443, 990 S.W.2d 522 (1999). Objective medical evidence is not essential to establish the causal \nrelationship  between  the  injury  and  a  work-related  accident  where  objective  medical  evidence \nestablishes the existence and extent of the injury, and a preponderance of other nonmedical evidence \nestablishes a causal relation to a work-related incident. Wal-Mart Stores, Inc. v. Van Wagner, supra; Wal-\nMart Stores, Inc. v. Leach, 74 Ark. App. 231, 48 S.W.3d 540 (2001). While a claimant's testimony is never \nviewed as  uncontroverted,  the  Commission  need  not  reject  the  claimant's  testimony  if  it  finds  that \ntestimony worthy of belief. Ringier America v. Combs, 41 Ark. App. 47, 849 S.W.2d 1 (1993).   \n I found claimant to be credible in all aspects of her testimony.  She did not think at first that \nshe  had  injured  herself  when  she  fell  but did feel something she called a “tweak” in her back \nimmediately.  Over  the  next  nine  days,  however,  her  condition  continued  to  gradually  worsen;  she \nattributed such to the long hours she was working.   In addition to finding the claimant’s testimony at \nthe hearing to be credible, I noted her testimony in her deposition did not materially vary from that \nwhich she presented at the hearing.  Had anything she said in the deposition been inaccurate or even \ndisputed, I would have expected to have heard such at the hearing.  She told of the co-worker that \nhelped her back on her feet when she fell, the nurse to whom she reported the fall, and the woman \ncalled only “Carol” who made the decision to deny the claim were all mentioned in the deposition; \nnone of them refuted what claimant testified to in that deposition or in the hearing.   \n I believe claimant continued to perform her regular job duties through August 28, 2020, while \nthe symptoms attributable to the August 19, 2020, injury did not resolve but rather grew progressively \nworse  until  she  sought  treatment.   The  day  she  tried  to  walk  into Walmart  to  get  the  prescriptions \nfilled was the culmination of what had been building for days, especially after she left work early on \nAugust 28, 2020. Because she did not yet appreciate the full extent of her August 19, 2020, injury, she \n\nMorehead-H007376 \n11 \n \n \ndid not tell the doctor in the ER about it.  As she related in her deposition, it wasn’t until Dr. Lewelling \nindicated that her symptoms were consistent with a fall that claimant made the connection between \nthat incident and the pain in her hip.  Based on her credible testimony and the lack of any proof to \nthe contrary, I find claimant has met her burden of proving that she suffered an injury on August 19, \n2020.  However, an injury does not become compensable until the claimant first learns the extent of \nher injuries and is off work for a period that would entitle her to benefits for a compensable injury. \nCalion Lumber Co. v. Goff, 14 Ark. App. 18, 684 S.W.2d 272 (1985).  That date would be August 28, \n2020, when claimant left work early due to the pain in her hip.  \nHowever, that does not end my analysis of this matter, as respondent raised a defense that  \nclaimant did not report her injury until September 24, 2020.   \nArkansas Code Annotated §11-9-701 (a)(1) provides:  \n(a)(1)  Unless  an  injury  either  renders  the  employee  physically  or  mentally \nunable  to  do  so,  or  is  made  known  to  the  employer  immediately  after  it \noccurs,  the  employee  shall  report  the  injury  to  the  employer  on  a  form \nprescribed or approved by the Workers' Compensation Commission and to a \nperson or at a place specified by the employer, and the employer shall not be \nresponsible  for  disability,  medical,  or  other  benefits  prior  to  receipt  of  the \nemployee's report of injury. \n \n Respondent did not present any additional proof on this issue, relying on claimant’s testimony \nas to when this injury was reported as a work-related injury.  Claimant herself conceded that it was \nnot reported as such until after either she had the CT scan, which was performed on September 15, \n2020, or the MRI on September 24, 2020—but she wasn’t sure which of the two it was.   Since no \nrepresentative  of  respondent  testified  as  to  when  the  report  was  made,  it  failed  to  prove  by  a \npreponderance  of  the  evidence  that  no  claim  was  made  before  September  24,  2020;  claimant  was \nequivocal on the date she made her report.  However, respondent did prove by a preponderance of \nthe evidence that no claim was made before September 15, 2020, as claimant conceded that there was \n\nMorehead-H007376 \n12 \n \n \nnothing reported about a work-related injury before the CT scan.  \n Having decided in claimant’s favor on the issue of compensability and in respondent’s favor \non the lack of notice before September 15, 2020, I turn now to the medical and indemnity benefits \naward.  I  am  convinced  that  all  of  claimant's  medical  treatment  after  September  15,  2020,  was \nreasonable and necessary.  She is entitled to reimbursement for any out-of-pocket medical expenses \nshe incurred. I further find that claimant was not able to work between September 15, 2020, until she \nwas released to return to full duty by Dr. Lewelling on November 23, 2020, and is entitled to temporary \ntotal disability during that period.  \nORDER \n \nRespondents  are  directed  to  pay  benefits  in  accordance  with  the  findings  of  fact  set  forth \nherein this Opinion. \nAll accrued sums shall be paid in lump sum without discount, and this award shall earn interest \nat the legal rate until paid, pursuant to Ark. Code Ann. § 11-9-809. \nPursuant to Ark. Code Ann. § 11-9-715, the claimant's attorney is entitled to a 25% attorney's \nfee on the indemnity benefits awarded herein. This fee is to be paid one-half by the carrier and one-\nhalf by the claimant. \nAll issues not addressed herein are expressly reserved under the Act. \nRespondent  is  responsible  for  paying  the  court  reporter  her  charges  for  preparation  of  the \ntranscript in the amount of $559.45. \n IT IS SO ORDERED. \n                                                                                              \n_______     \n JOSEPH C. SELF \nADMINISTRATIVE LAW JUDGE","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H007376 KIMBERLY MOREHEAD, Employee CLAIMANT O. K. FOODS INC., Self-Insured Employer RESPONDENT OPINION FILED OCTOBER 12, 2023 Hearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Fort Smith, Sebastian County, Arkansas. Claimant represented by TANNER T...","fetched_at":"2026-05-19T23:01:34.818Z","links":{"html":"/opinions/alj-H007376-2023-10-12","pdf":"https://labor.arkansas.gov/wp-content/uploads/MOREHEAD_KIMBERLY_H007376_20231012.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}