{"id":"alj-H009300-2024-01-23","awcc_number":"H009300","decision_date":"2024-01-23","opinion_type":"alj","claimant_name":"Kimberly Taylor","employer_name":"Hino Mtrs. Mfg. USA, Inc","title":"TAYLOR VS. HINO MTRS. MFG. USA, INC. AWCC# H009300 JANUARY 23, 2024","outcome":"granted","outcome_keywords":["granted:4"],"injury_keywords":["shoulder","back","lumbar","neck","cervical","hip"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/Taylor_Kimberly_H009300_20240123.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Taylor_Kimberly_H009300_20240123.pdf","text_length":46726,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H009300 \n \n \nKIMBERLY TAYLOR, EMPLOYEE CLAIMANT \n \nHINO MTRS. MFG. USA, INC., \n EMPLOYER RESPONDENT \n \nSOMPO AMER. INS. CO., CARRIER RESPONDENT \n \n \nOPINION FILED JANUARY 23, 2024 \n \nHearing  before  Administrative  Law  Judge  O.  Milton  Fine  II  on  October  27,  2023,  in \nMarion, Crittenden County, Arkansas. \n \nClaimant represented by Mr. Andy L. Caldwell, Attorney at Law, Little Rock, Arkansas. \n \nRespondents represented by Mr. Jason Ryburn, Attorney at Law, Little Rock, Arkansas. \n \n \nSTATEMENT OF THE CASE \n \n On October 27, 2023, the above-captioned claim was heard in Marion, Arkansas.  \nA  prehearing  conference  took  place  on  July  24,  2022.    The  Prehearing  Order  entered \non that date pursuant to the conference was admitted without objection as Commission \nExhibit 1. \nStipulations \n The   parties   discussed   the   stipulations   set   forth   in   Commission   Exhibit  1.  \nFollowing  an  additional  one  reached  at  the  hearing—which  pertains  to  the  period  for \nwhich temporary total disability benefits were paid, supplements language in Stipulation \nNo. 3, and thus will be sited there—they are the following, which I accept: \n1. The  Arkansas  Workers’  Compensation  Commission  has  jurisdiction  over \nthis claim. \n\nTAYLOR – H009300 \n \n2 \n2. The  employer/employee/carrier  relationship  existed  on  or  about  October \n21, 2020. \n3. Respondents initially accepted  Claimant’s  alleged  right  shoulder  injury  as \ncompensable   and   paid   medical   and   temporary   total   benefits   (from \nNovember 6, 2020, through May 12, 2022) pursuant thereto; but they have \nnow controverted this claim in its entirety. \n4. Claimant’s  average  weekly  wage entitles  her  to  compensation  rates  of \n$347.00/$260.00. \nIssues \n The  parties  discussed  the  issues  set  forth  in  Commission  Exhibit  1.    The \nfollowing were litigated: \n1. Whether  Claimant  sustained  compensable  injuries  by  specific  incident  to \nher back and right shoulder. \n2. Whether   Claimant   is   entitled   to   reasonable   and   necessary   medical \ntreatment. \n3. Whether   Claimant   is   entitled   to   additional   temporary   total   disability \nbenefits. \n4. Whether  Claimant  is  entitled  to  a  controverted  attorney’s  fee,  including  a \nfee on all indemnity benefits previously paid in this claim. \n All other issues have been reserved. \nContentions \n The respective contentions of the parties, as amended, read as follows: \n\nTAYLOR – H009300 \n \n3 \n Claimant: \n1. Claimant  contends  that  she  sustained  injuries  to  her  back  and  right \nshoulder  in  the  course  and  scope  of  her  employment  on  October  21, \n2020,  when  she  was  removing  parts  from  a  machine.    Respondents \ninitially  accepted  the  right  shoulder  as  compensable  and  paid  medical \nand  temporary  total  disability  benefits  from  November  6,  2020,  through \nMay  12,  2022.  Respondents  have  now  controverted  the  claim  in  its \nentirety. \n2. Claimant  was under  the  treatment  of  Christopher  Gross,  APN  with  Coast \nto  Coast  Medical,  who  diagnosed  her  with  a  SLAP  tear  of  the  right \nshoulder and low back pain with radiculopathy.  He recommended an MRI \nof the lumbar spine and a referral to an orthopedist.  Claimant was treating \nwith  Dr.  David  Brown  for  her  shoulder.    Dr.  Brown  opined  that  she \nsustained  a  SLAP  tear  of  the  right  shoulder.    He  was  concerned  with \nperforming  surgery  due  to  her  stiffness.    Brown  recommended  a  second \nopinion   with   an   option   to   treat,   and   kept   Claimant   on   light   duty.  \nRespondents   have   denied  the   recommendations   of   Drs.   Gross   and \nBrown. \n3. Claimant  contends  that  she  sustained  compensable  injuries  to  her  back \nand right shoulder.  She is entitled to the recommended MRI of the lumbar \nspine,  physical  therapy  and  a  repair  of  her  right  shoulder  SLAP  tear, \npayment/reimbursement   of  medical   and  out-of-pocket   expenses,   and \n\nTAYLOR – H009300 \n \n4 \nadditional temporary total disability benefits from  May 13, 2022, to a date \nyet to be determined. \n4. All other issues are reserved. \nRespondents: \n1. Claimant did not suffer a compensable back injury.  Her right shoulder was \naccepted and all reasonable and necessary benefits were paid.  She gave \nan  unreliable  effort  in  a  functional  capacity  evaluation,  failed  to  attend \nphysical  therapy  appointments,  and  then  was  released  at  maximum \nmedical  improvement  with  zero  percent  (0%)  impairment  by  Dr.  Charles \nPearce on February 28, 2022. \n2. Respondents  have  not  controverted  the  claim  in  its  entirety  and  do  not \nowe attorney’s fees on previous indemnity. \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n After  reviewing  the  record  as  a  whole,  including  medical  reports  and  other \nmatters  properly  before  the  Commission,  and  having  had  an  opportunity to  hear  the \ntestimony  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. Respondents’ motion to withdraw Stipulation No. 3 is hereby denied. \n\nTAYLOR – H009300 \n \n5 \n4. Respondents’  motion,  made  after  the  close  of  the  evidence,  to  add  both \nan issue and a contention concerning the alleged running of the statute of \nlimitations regarding one of Claimant’s alleged injuries, is hereby denied. \n5. Claimant has  not  proven  by  a  preponderance  of  the  evidence  that  she \nsustained a compensable injury to her back by specific incident. \n6. Claimant  has  proven  by  a  preponderance  of  the  evidence  that  she \nsustained a compensable injury to her right shoulder by specific incident. \n7. Claimant  has not proven  by a  preponderance  of  the evidence  that she  is \nentitled to reasonable and necessary treatment of her alleged back injury. \n8. Claimant  has  proven  by  a  preponderance  of  the  evidence  that  she  is \nentitled    to    reasonable    and    necessary    medical    treatment   of    her \ncompensable  right  shoulder  injury.    Moreover,  she  has  proven  by  a \npreponderance of the evidence that all of her treatment  therefor that is in \nevidence was reasonable and necessary. \n9. Claimant  has  not  proven  by a  preponderance  of  the evidence  that  she  is \nentitled to additional temporary total disability benefits. \n10. Claimant has proven by a preponderance of the evidence that her counsel \nis  entitled  to  a  controverted  attorney’s  fee on  the  indemnity  benefits \npreviously  paid  under  this  claim,  pursuant  to  Stipulation  No.  3  and  Ark. \nCode Ann. § 11-9-715 (Repl. 2012). \n\nTAYLOR – H009300 \n \n6 \nCASE IN CHIEF \nSummary of Evidence \n Claimant was the sole witness. \n In  addition  to  the  Prehearing  Order  discussed  above,  admitted  into  evidence  in \nthis  case  were  the  following:   Claimant’s  Exhibit  1, a  compilation\n1\n  of  her  medical \nrecords, consisting of two index pages and 141 numbered pages thereafter; Claimant’s \n \n \n1\nThis  exhibit  includes  two  Forms  AR-3.    Per  Ark.  Code  Ann.  §  11-9-529(a)-(c) \n(Repl. 2012): \n \n(a) Within ten (10) days after the date of receipt of notice or of knowledge \nof injury or death, the employer shall send to the Workers' Compensation \nCommission a report setting forth: \n \n(1) The name, address, and business of the employer; \n(2) The name, address, and occupation of the employee; \n(3) The cause and nature of the injury or death; \n(4) The year, month, day, and hour when, and the particular locality  \n where, the injury or death occurred; and \n(5) Such other information as the commission may require. \n \n(b) Additional reports with respect to the injury and of the condition of the \nemployee  shall  be  sent  by  the  employer  to  the  commission  at  such  time \nand in such manner as the commission may prescribe. \n \n(c)  Any  report  provided  for  in  subsection  (a)  or  (b)  of  this  section \nshall   not   be   evidence   of   any   fact   stated   in   the   report   in   any \nproceeding  with  respect  to  the  injury  or  death  on  account  of  which \nthe report is made. \n \n(Emphasis  added)    Form  AR-3—one  of  the  numerical,  or  administrative,  forms  of  the \nCommission–is  one  of  the  forms  covered  under  this  provision.    Even  though  no  party \nobjected  to  their  admission,  the  above-highlighted  language  prohibits  the  Commission \nfrom  considering  them  for  the  purpose  of  determining,  inter  alia,  whether  Claimant \nsustained a compensable injury. \n \n \n\nTAYLOR – H009300 \n \n7 \nExhibit 2 a letter to her counsel from Delta Rehab dated January 27, 2022, consisting of \none  page;  Claimant’s  Exhibit  3,  an  affidavit  from  Alvin  Sims  dated  October  20,  2023, \nconsisting of one page; and Respondents’ Exhibit 1, medical and non-medical records, \nconsisting of one index page and 38 numbered pages thereafter. \n Also, I have blue-backed to the record the post-hearing briefs of the parties, both \nfiled on November 10, 2023, and consisting of 12 and 49 (including attachments) pages, \nrespectively. \nPRELIMINARY RULINGS \n Withdrawal of Stipulation No. 3 \n As addressed above, a prehearing telephone conference concerning this matter \ntook  place  on  July  24,  2023—over  three  months  before  the  hearing.    The  Prehearing \nOrder  was  issued  the  same  day  as  the  conference  and   included  the  following \nstipulation: \n3. Respondents  initially accepted  Claimant’s  alleged  right  shoulder  injury  as \ncompensable  and  paid  medical  and  temporary  total  benefits  pursuant \nthereto; but they have now controverted this claim in its entirety. \nNot until the October 27, 2023, hearing did Respondents take issue with the stipulation; \nthey made no earlier effort to amend or withdraw it.  But they did move to withdraw it at \nthe  hearing,  explaining  that  it  was “essentially  a  mistake.”  In  their  attempt  to  support \nthis position, their counsel pointed out that the stipulation ran counter to their contention \nthat reads:  “[Claimant’s] right shoulder was accepted and all reasonable and necessary \nbenefits were paid . . . Respondents have not controverted the claim in its entirety and \n\nTAYLOR – H009300 \n \n8 \ndo  not  owe  attorney’s  fees  on  previous  indemnity.”  However,  the  above-quoted \nstipulation  comports  with  Issue  Nos.  1  and  4,  which  seek  a  determination  regarding \nwhether Claimant suffered a compensable injury to her right shoulder and whether she \nis entitled to a controverted attorney’s fee on indemnity benefits already paid. \n “A  stipulation  is  an  agreement  between  attorneys  respecting  the  conduct  of  the \nlegal proceedings.”  Ark. Dept. of Corr. v. Jackson, 2019 Ark. App. 124, 571 S.W.3d 539 \n(citing Dinwiddie  v.  Syler,  230  Ark.  405,  323  S.W.2d  548  (1959)).    As  a  general  rule, \nparties are bound by their stipulations.  Dempsey v. Merchants Natl. Bank of Fort Smith, \n292  Ark.  207,  729  S.W.2d  150  (1987).    Nonetheless,  the  Commission  may  in  its \ndiscretion permit a party to withdraw a stipulation.  Ark. Dept. of Corr., supra; Jackson v. \nCircle T Express, 49 Ark. App. 94, 896 S.W.2d 602 (1995). \n In Gillespie  v.  E-Z  Mart,  Inc.,  1997  AWCC  191,  Claim  No.  E516049  (Full \nCommission  Opinion  filed  April  18,  1997),  the  Commission  stated:    “Although  we \nrecognize that a party can withdraw a stipulation, we specifically find that they must do \nso  prior  to  the  matter  being  submitted  for  determination.”   Here,  Respondents  waited \nuntil the last possible time—the addressing of preliminary matters at the hearing itself—\nto seek to withdraw the stipulation.  As the Arkansas Court of Appeals wrote in Sapp v. \nTyson Foods, 2010 Ark. App. 517, 2010 Ark. App. LEXIS 549, “elementary principles of \nfair  play”  apply  in  Commission  proceedings.   The  withdrawal  of  the  stipulation  would \nchange the nature of what the parties reasonably expected to litigate at the hearing.  It \nwould violate “elementary principles of fair play” to allow the withdrawal at that juncture. \n\nTAYLOR – H009300 \n \n9 \n In Circle  T  Express, supra,  the  respondents  were  allowed  to  withdraw  a \nstipulation concerning compensability that they had made in the case prior to the joinder \nof the Second Injury Fund (“SIF”).  The stipulation was included in the prehearing order \nfollowing  the  December  16,  1991,  prehearing  conference.    Thereafter,  the  SIF  was \njoined  to  the  claim,  and  it  took  the  position  that  the  claimant  had  not sustained  a \ncompensable injury.  For that reason, the respondent employer and carrier withdrew the \ncompensability stipulation.  The administrative law judge conducted a hearing and ruled \nthat  while  the  respondent  employer  and  carrier  were  precluded  from  contesting \ncompensability, the SIF could do so.  On appeal, the Full Commission reversed, stating \nthat  “[e]nforcing  the  stipulation  under  the  facts  of  this  case  would  be  contrary  to  basic \nnotions  of  justice  and  fair  play.    These  concepts  require  results  which  are  logically \nconsistent  with  the  findings  made  by  the  fact  finder.”   Jackson  v.  Circle  T  Express, \nClaim  No.  E016465  (Full  Commission  Opinion  filed  February  9,  1994), aff’d,  49  Ark. \nApp. 94, 896 S.W.2d 602 (1995).  The Commission pointed out that if it were to find (for \npurposes  of  the  compensability  issue  raised  by  the  SIF)  that  the  claimant  had  not \nproven  compensability,  while  at  the  same  time  holding  the  respondent  employer  and \ncarrier  to  the  stipulation  that  the  claimant  had  in  fact  sustained  a  compensable  injury, \nwould not be “logically consistent or compatible with the interests of justice or fair play.”  \nId.  The Arkansas Court of Appeals affirmed this decision.  Circle T Express, supra.  In a \nsimilar  vein  here,  Stipulation  No.  3  is  logically  consistent  with  Issue Nos.  1  and  4—\nwhich they parties expected to litigate—and in fact did litigate—at the hearing.  It would \n\nTAYLOR – H009300 \n \n10 \nhardly be “compatible with the interests of justice or fair play” to permit the withdrawal of \nthe stipulation at that juncture. \n As  for  Respondents’  position  that  the  stipulation  was “essentially  a  mistake,”  i n \nArk.  Dept.  of  Corr., supra,  the  Arkansas  Court  of  Appeals  held  that  the  respondent \nemployer and carrier were bound to a stipulation to which they had agreed at a previous \nhearing  concerning  the  claimant’s  average  weekly  wage  and  compensation  rates \n($602.00/$452.00),   even   though   a   subsequent   hearing   (in   which   the   Death   & \nPermanent   Total   Disability   Trust   Fund   participated)   showed   them   to   be   lower, \n($505.00/$379.00).    In  finding  that  the  respondent  employer  and  carrier  were  not \nentitled to a credit for an overpayment of indemnity benefits at an inaccurately high rate, \nthe court wrote: \nAt  the  time  of  the  stipulation,  appellants  should  have  been  aware  of \nJackson’s  employment  and  wage  history,  and  we  cannot find  that  the \nCommission   abused   its   discretion   in   failing   to   allow   appellants   to \nretroactively   withdraw   their   stipulation   and   benefit   from   a   mistake \ndiscovered years after the fact. \n \nIn  the  case  at  hand,  Respondents  had  months  to  consider  the  Prehearing  Order  and \ntake steps to correct any perceived mistake therein.  They did not do so. \n In sum, the evidence preponderates that Respondents should  not be allowed to \nwithdraw their assent to Stipulation No. 3.  Their motion to do so is, respectfully, denied. \n Addition of Statute of Limitations Issue and Contention \n At  the  hearing,  after  testimony  concluded  and  the  parties  had  rested,  the \nfollowing motion was made: \nRespondents  would  move  to  amend  their  contentions  due  to  testimony \nelicited at this hearing, that the statute [of limitations] . . . bars at least one \n\nTAYLOR – H009300 \n \n11 \nof  these  injuries  because  they  were—they  occurred  in  two  different \ninstances, one of which was not claimed. \n \n As the Court of Appeals wrote in Sapp, supra, “elementary principles of fair play” \napply  in  Commission proceedings.   See  also  Circle  T  Express, supra.   I  find that  such \nan  amendment  would  change  the  nature  of  what  the  parties  reasonably  expected  to \nlitigate–and did litigate–at the hearing.  Coming after the close of the evidence, it would \nviolate “elementary principles of fair play” to allow such an amendment at that juncture. \n In  addition,  the  allegation  that  the  statute  of  limitations  has  run is  an  affirmative \ndefense.  See Johnson v. Elkhart Prods. Corp., AWCC No. D303314 (Full Commission \nOpinion filed March 28, 1995).  Respondents waived it here because they did not raise \nit in a timely manner.  See Poff v. Brown, 374 Ark. 453, 288 S.W.3d 620 (2008); Harris \nv.  Otis,  2020  Ark.  App.  375,  605  S.W.3d  538.  After  due  consideration,  Respondents’ \nmotion is hereby denied. \nADJUDICATION \nA. Compensability \n Introduction.  Claimant has argued that she suffered compensable injuries to her \nback  and  right  shoulder  in  a  specific  incident on  October  21,  2020,  while  working  for \nRespondent  Hino  Motors  Manufacturing  USA,  Inc.  (“Hino”).    Respondents  initially \naccepted  the  alleged  right  shoulder  injury  as  compensable,  but  later  controverted  it.  \nSee supra.  They never accepted the alleged back injury. \n Standards.    In  order  to  prove  the  occurrence  of  an  injury  caused  by  a  specific \nincident identifiable by time and place of occurrence, a claimant must show that:  (1) an \ninjury  occurred  that  arose  out  of  and  in  the  course  of  his  employment; (2)  the  injury \n\nTAYLOR – H009300 \n \n12 \ncaused internal or external harm to the body that required medical services or resulted \nin  disability  or  death;  (3)  the  injury  is  established  by  medical  evidence  supported  by \nobjective  findings,  which  are  those  findings  which  cannot  come  under  the  voluntary \ncontrol  of  the  patient;  and  (4)  the  injury  was  caused  by  a  specific  incident and  is \nidentifiable by time and place of occurrence.  Mikel v. Engineered Specialty Plastics, 56 \nArk.   App.  126,  938  S.W.2d   876   (1997).     If  a   claimant  fails  to   establish   by   a \npreponderance  of  the  evidence  any  of  the  above  elements,  compensation  must  be \ndenied.   Id.  This  standard  means  the  evidence  having  greater  weight  or  convincing \nforce.  Barre v. Hoffman, 2009 Ark. 373, 326 S.W.3d 415; Smith v. Magnet Cove Barium \nCorp., 212 Ark. 491, 206 S.W.2d 442 (1947). \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 Agric. Ent., 72 Ark. App. 309, 37 S.W.3d 649 (2001).  The \nCommission must sort through conflicting evidence and determine the true facts.  Id.  In \nso doing, the Commission is not required to believe the testimony of the claimant or any \nother  witness,  but may  accept  and  translate  into  findings  of fact  only  those portions of \nthe testimony that it deems worthy of belief.  Id. \n Discussion.      Per   the   testimony   of   Claimant,   she   had   been   working   for \nRespondent Hino during the time period at issue as a worker in the rear axle assembly \nsection.    Her  job  was  to “[p]ut  the  seals  on  the  axle  and  screw  down  the  bolts.”  After \nbeing employed there just three days, she became injured on the job.  On October 21, \n\nTAYLOR – H009300 \n \n13 \n2020, she was pulling on an axle that was on the conveyor belt in order to dislodge it.  \nAs  a  result,  she  hurt  her  lower  back  and  her  right  shoulder.    Later,  on  cross-\nexamination,  Claimant  elaborated  that  there were  actually  two  incidents on the  date  in \nquestion.    First,  she  felt  a “pinch”  in  her  lower  back  when  reaching  for  an  axle;  and \nsecond, she felt pain in her shoulder when she was pulling a part down in order to align \nthe  bolts.    According  to  the  medical  records  in  evidence,  when  she  presented  for \ntreatment  at  Coast  to  Coast  Medical  that  same  day,  she  informed  treating  personnel \nthat  she “hurt  [her]  lower  [right]  side  back  pulling  on  [a]  part.”  Although  the  record \nreflects that she was administered a Toradol injection, Claimant did not recall this.  She \nwent back to work.  In a follow-up visit on November 6, 2020, Claimant was noted to be \ntender to palpation of her right shoulder, upper back, and lower back.  Physical therapy \nwas recommended.  Motrin, Tramadol and Zanaflex were prescribed.  While the last of \nthose  medications  is  a  muscle  relaxant,  no  spasms  were  noted  in  the  Coast  to  Coast \nrecords. \n The following exchange took place: \nQ. And what were your complaints?  Do you remember what you were \ncomplaining of in terms of body part and—body parts and pain? \n \nA. My lower back, the swelling in my lower back which was aching, \nand  a  sharp  pain  down  my  right  leg,  and  my  right  shoulder,  the \nswelling and aching going down my right arm. \n \nQ. And  just  so  that—for  the  Judge’s  edification,  are  you  still  having \nthose problems? \n \nA. Yes, sir. \n \nQ. Have you continued to have those problems since this injury? \n \n\nTAYLOR – H009300 \n \n14 \nA. Yes, sir. \n \n(Emphasis added)  But lay observations do not constitute “medical evidence supported \nby  objective  findings.”   Overstreet  v.  Pontiac  Coil,  Inc.,  2004  AR  Work.  Comp.  LEXIS \n361,   Claim   No.   F307136   (Full   Commission   Opinion   filed   November   3,   2004).  \nNotwithstanding  the  above,  the  medical  records  in  evidence  are  silent  as  to  any  back \nswelling.  Her  December  1,  2020,  physical  therapy  record  includes  the  following:  \n“Observation:  swelling continues to R upper trap and R anterior deltoid.”  But I note that \nneither  body  part  pertains  to  the  back—and  certainly  not  the  lower  back.    While \nClaimant  on  December  28,  2020,  told  Coast  to  Coast  Medical  that  her  right shoulder \nwas still swollen, no objective findings of such accompanied it in the report. \n On  March  23,  2021,  Claimant  underwent  an  MRI  of  her  right  shoulder.    The \nreport reads in pertinent part:  “Irregularity of the mid to posterior portion of the superior \nlabrum  is  compatible  with  SLAP  tear.”  The  reading  radiologist,  Dr.  Vu  Loi,  diagnosed \nthe presence of a SLAP tear.  The physician at Coast to Coast Medical opined that the \ntear would require surgery.  Claimant was referred to Dr. David Brown.  He saw her on \nMay 6, 2021, for “right shoulder pain . . . [that] began on 10/21/20 after she pulled on a \npiece  of  equipment  at  work  that  strained  her  shoulder.”    The  doctor wrote  that “[h]er \nmedical  records  state  that  she  has  a  possible  SLAP  tear.”  He  prescribed  Diclofenac \nand  withheld  a  more  definitive  diagnosis  pending  his  own  review  of  the  MRI.    When \nBrown saw her again on May 18, 2021, he concurred with the SLAP tear diagnosis, but \nexpressed  concern  with  proceeding  with  surgery  in  light  of  Claimant’s  stiffness.    He \nadministered  a  steroid  injection  and  ordered  physical  therapy.    According  to  Claimant, \n\nTAYLOR – H009300 \n \n15 \nshe  had  difficulty  obtaining  the  therapy.  He  recommended  that  she  obtain  a  second \nopinion  regarding  her  desire  for  surgery  to  address  the  SLAP  tear.    She last  saw  Dr. \nBrown on August 12, 2021.  On that date, he wrote: \nThe  patient  continues  to  complain  of  pain  and  stiffness.    Her  daughter \nrecently  passed  away  with  Covid.    She  has  not  been  able  to  do  physical \ntherapy  secondary  to  her  daughter’s  situation.    I  am  very  hesitant  to \nproceed  with  any  sort  of  surgery  considering  the  amount  of  patient’s \nstiffness  and apprehension  with  range  of motion.   She has  evidence of a \nSLAP  tear  that  occurred  in  October  2020.    I  recommend  the  patient \nundergo  an  independent  medical  exam  with  an  option  to  treat  via  a \nsecond opinion. \n \n On  February  28,  2022,  Claimant  went  to  Dr.  Pearce.    The  report  of  that  visit \nreads in pertinent part: \nCC:  Right shoulder pain \n \nINJURY DATE:  October 19, 2020 \n \nHPI:    The  patient  is  a  40-yar-old  right-handed  employee  of  Hino  Motors \nwho  was  injured  the  1\nst\n  day  of  training/work  when  she  was  instructed  to \npull  an  axle  off  of  a  line.    She  says  she  could  not  pull  the  axle  despite \nleaning  over  the  part  and  as  she  did  so  she  felt  a  pinch  and  pull  in her \nright  shoulder.    She  has  been  on  light  duty  restrictions  since.    She  was \nseen  and  evaluated  on  May  6,  2021  by  Dr.  Davis  Brown  who  prescribed \ndiclofenac and ordered an MRI scan of her shoulder.  Additionally she had \na  cortisone  injection.    Prior  to  that  visit  she had  had  a  course of  therapy, \nmodification activities and anti-inflammatories.  She has never had similar \nproblems  in  the  past.    She  complains  of  neck  and  shoulder  pain.    MRI \nscan  was  done  and  by  report  showed  a  SLAP  tear.    Surgery  apparently \nwas  discussed  but  there  was  concern  that  she  had  not  gained  motion \ndespite  the  above  modalities  to  include  the  steroid  injection.    Dr.  Brown \nasked  for  a  2\nnd\n  opinion.    Currently,  she  is  complaining  of  shoulder, \nshoulder girdle, right neck and arm pain to about the elbow. \n \nPHYSICAL EXAM: \n \n[RIGHT]  SHOULDER:    No  obvious  abnormality  to  inspection.    Wide  area \nof tenderness throughout her shoulder girdle and periscapular.  Difficult to \nestablish range of motion is there is much patient resistance secondary to \n\nTAYLOR – H009300 \n \n16 \npain.  She has give-way weakness in all planes tested.  There is no gross \nmotor  or  sensory  loss  distally  include  radial,  median  and  ulnar  nerves.  \nShe complains of pain with range of motion all directions cervical spine. \n \nIMAGING:    X-rays  ordered  and  interpreted  by  me  surgical  spine  and \nright shoulder show no significant acute abnormality.  There may be \nslight  straightening  of  her  lordotic  curve.    MRI  scan  from  March  23, \n2021  is  a  noncontrast  scan  and  shows  some  possible  undercutting \nof her superior labrum that was labile [sic] a slap tear.  However this \ncan be a normal finding as well. \n \nIMPRESSION:  Right  shoulder,  shoulder  girdle,  arm  pain  and  weakness \nnot consistent with MRI finding of slap tear. \n \nPLAN: \n1. I  would  recommend  a functional  capacity  evaluation  prior to \nany further diagnostic testing or treatment. \n \n2. Patient  can  continue  with  light  duties,  anti-inflammatories  in \nthe interim time. \n \n(Emphasis added) \n Straightening  of  the  lordotic  curve  can  be  an  objective  finding.   See  Estridge  v. \nWaste Mgmt., 343 Ark. 276, 33  S.W.3d 67 (2000).  Pearce’s notation that “[t]here may \nbe  slight  straightening”  of  the  curvature,  however,  falls  short  of  the  standard  of \ndefiniteness needed to establish the presence of an objective finding.  The Commission \nis  authorized  to  accept  or  reject  a  medical  opinion  and  is  authorized  to determine  its \nmedical soundness and probative value.  Poulan Weed Eater v. Marshall, 79 Ark. App. \n129, 84 S.W.3d 878 (2002).  But to credit the above as a definitive finding would require \nthat  I  engage  in  speculation  and  conjecture—which  is  impermissible.   See  Dena \nConstruction Co. v. Herndon, 264 Ark. 791, 796, 575 S.W.2d 155 (1979). \n Claimant underwent the recommended  functional capacity evaluation on April 6, \n2022.  According to the report thereof,  she demonstrated the ability to perform work in \n\nTAYLOR – H009300 \n \n17 \nat least the Sedentary classification.  However, this finding was admittedly very suspect \nbecause  evaluation  showed  that  the  effort  that  Claimant  put  forth  was  extremely \nunreliable: \nRELIABILITY AND CONSISTENCY OF EFFORT \nConsistency  of  effort  testing  obtained  during  this  evaluation  indicate \nsignificant  observational  and  evidence  based  inconsistencies  resulting  in \nself-limiting   behavior   and   sub-maximal   effort.      The   results   of   this \nevaluation  indicate  that  an  unreliable  effort  was  put  forth,  with  27  of  52 \nconsistency   measures   within   expected   limits.      Analysis   of   the   data \ncollected  during  this  evaluation  indicates  that  she  did  not  put  forth \nconsistent  effort.    She  produced  low  and  inconsistent  grip  strength  with \neach  hand  with  C.V.’s  that  indicate  great  variance  with  repeated  trial \ntesting.    She  also  demonstrated  significantly  higher  or  lower  force  with \nboth  the  right  and  left  hand  during  rapid  grip  testing,  which  further \nvalidates  that  less  than  full  effort  was  being  put  forth  with  standard  grip \ntesting.  She also failed to produce an appropriate bell shaped curve with \n5  position  testing.    It  is  also  noted  that  she  demonstrated  inconsistent \nmovement   patterns   and   inconsistent   AROM   of   the   shoulder   when \ncomparing  her  formally  measured  AROM  with  that  demonstrated  during \nfunctional  aspects  of  testing.    She  also  failed  to  produce  a  significant \ncardiovascular  response  to  physical  testing  that  would  indicate  that  a \nsignificant  degree  of  effort  was  being  put  forth.    She  also  demonstrated \nindicators of self limiting effort.  For example, her reaching patterns when \nformally tested were slow, yet when performing a similar task during other \naspects of testing were normal and completed without apparent difficulty.  \nShe also demonstrated a bi-manual floor to knuckle lift of 10 lbs., yet later \ndemonstrated the ability to lift and then carry 20 lbs. when lifting from the \nsame plane. \n \n. . . \n \nFUNCTIONAL LIMITATIONS \nAlthough  Ms.  Taylor  reported  and/or  demonstrated  numerous  functional \nlimitations    during    her    evaluation,    she    also    exhibited    numerous \ninconsistencies  which  invalidated  her  entire  evaluation.    Therefore,  her \ncurrent functional status remains unknown at this time due to her failure to \nproduce  sufficient  objective  data  to  substantiate  her  reported  and/or \ndemonstrated limitations. \n \n\nTAYLOR – H009300 \n \n18 \nAfter  Dr.  Pearce  received  the  functional  capacity  evaluation  report,  he  authored  the \nfollowing addendum on April 18, 2022: \nThe patient  completed  a  functional  capacity  evaluation  on  April  6,  2022.  \nShe   gave   an   unreliable   effort   only   meeting   27   of   52   consistency \nmeasures.  She was placed in at least the sedentary classification of work.  \nHowever this is not valid because of her unreliable effort.  The patient has \nreached maximal medical improvement.  The patient can return to regular \nwork duties without restriction.  There is no indication for further diagnostic \ntesting and/or treatment.  The patient has sustained 0% permanent partial \nimpairment  as  it  pertains  to  her  upper  extremity.    The  statements  are \nmade within a degree of medical certainty. \n \n Reflected  in  her  testimony  and  the  medical  records  in  evidence  is  a  gap  in \nClaimant’s  treatment  of  her  shoulder  until  she  saw  Pearce  for  the  aforementioned \nsecond  opinion.    During  that  six-month-plus  period,  she  went  to  her  primary  care \nphysician.  When she saw APRN Denise Purnell  on February 7, 2022, she complained \nof “low back and hip pain for 3-4 days.”  Claimant did not report what she believed to be \nthe  origin  of  the  pain—and certainly  its  relatively  short  duration  did  not  tie  it  to  the \nOctober 2020 incident at Hino.  When she returned to the clinic on March 4, 2022, she \nsaw Dr. Camdin Gray.  Gray wrote:  “Low back pain—referral to PT as suspect muscle \nspasm.  XR as above, with trial [C]yclobenzaprine.”  As the above shows, the doctor did \nnot observe or palpate a spasm.  He made a therapy referral and prescribed a muscle \nrelaxant based solely on what Claimant related to him.  This is not an objective finding.  \nWhen  physical  therapy  did  not  prove  fruitful,  Dr.  Gray  on  April  13,  2022,  referred \nClaimant for pain management. \n Pursuant to the referral, Claimant went to see Dr. Ted Shields at Pain Treatment \nCenters  of  America  on  October  6,  2022.    The  records  in  evidence  show  that  he has \n\nTAYLOR – H009300 \n \n19 \nbeen  treating  her  for  right  shoulder  and  lower  back  pain.    The  pain  management  has \nconsisted  not  only  of  prescription  medications  such  as  Gabapentin,  Oxycodone, and \nCyclobenzaprine,  but  also  more  invasive  procedures  such  as  lumbar  medial  branch \nblocks and lumbar radiofrequency ablation neurotomies for the back, and suprascapular \nand  axillary  nerve  blocks  for  her  shoulder.  The  pain  management  records  lack  any \nobjective findings of an injury to the back.  While, for instance, Claimant reported relief \nfrom the injections and ablations, this—again—is subjective and not objective in nature.  \nSee  Ark.  Code  Ann.  § 11-9-102(16)(A)(i)  (Repl.  2012)(“‘Objective  findings’”  are  those \nfindings which cannot come under the voluntary control of the patient”).  But Shields did \ninclude  objective  findings  of  Claimant’s  shoulder  in  the  form  of  crepitance.    This  can \nconstitute  an  objective  finding.   See  Greer  v.  Ozark  Opportunities,  2009  AWCC  124, \nClaim No. F704899 (Full Commission Opinion filed July 8, 2009); Goss v. Baker Engr., \n2002 AWCC 127, Claim No. E910877 (Full Commission Opinion filed June 19, 2002). \n On September 13, 2023, Claimant underwent another MRI of her right shoulder.  \nIn  this  instance,  the  radiological  findings,  by  Dr.  Ezekial  Shotts,  were  of  a “[t]iny”  low-\ngrade  partial  interstitial  tear  at  the  greater  tuberosity  footprint  of  the  infraspinatus \ntendon, and an anterior to posterosuperior labral tear.  She related on the witness stand \nthat she has undergone an MRI of her lumbar spine as well.  But such is not reflected in \nher medical records in evidence. \n Claimant  in  her  testimony  denied  having  any  back  or  shoulder  problems  before \nOctober  21,  2020.    In reference  to  her  credibility  as  a  witness,  the  following  exchange \ntook place on cross-examination: \n\nTAYLOR – H009300 \n \n20 \nQ. So  your  earlier  testimony  that  you  did  work  [at  the  home  health \nbusiness] is incorrect, is that right? \n \nA. I am confused.  I’m sorry, ‘cause I take a lot of meds.  I’m confused.  \nBut I know I tried to work there like three weeks. \n \nQ. Can I ask what meds you’re on right now? \n \nA. I take Percocets and muscle relaxer and— \n \nQ. When did you last take a Percocet? \n \nA. Last night. \n \nQ. Are they affecting your cognition now? \n \nA. Well, I don’t know— \n \nQ. Okay. \n \nA. —‘cause  I  take—I  take  quite  a  bit  of  meds,  and  I  also  take \ndepression meds, too. \n \nQ. Okay.    And  you  understand  that  you’re  under  oath  and  that  the \ncredibility of your testimony is an issue at this hearing? \n \nA. Yes. \n \nLater,  when  questioned  by  the  Commission  on  this  matter,  Claimant  stated  that  her \ntestimony is reliable, but that she gets “confused on the dates.” \n In analyzing the elements of compensability vis-à-vis Claimant’s alleged injuries, \nthe evidence is devoid of objective findings of a back injury.  See supra.  Therefore, that \nportion of her claim must fail at the outset. \n As for her alleged right shoulder injury.  I credit the MRI findings as read by Drs. \nBrown, Loi, and Shott—all of whom found that she sustained tears to the shoulder, and \n\nTAYLOR – H009300 \n \n21 \nwith the first two specifically finding that there was a SLAP tear.  I am unable, based on \nmy review of the evidence, to credit Dr. Pearce, who did not concur in this. \n As  to  whether this  shoulder  injury  arose  out  of  and  in  the  course  of  her \nemployment  at  Respondent  Hino,  and was  caused  by  a  specific  incident  that  is \nidentifiable  by  time  and  place  of occurrence,  the  evidence  shows  that  the  injury  was \nsustained by Claimant on October 21, 2020, while she was pulling on a part so that the \nbolts could be brought into line.  A causal relationship may be established between an \nemployment-related  incident  and  a  subsequent  physical  injury  based  on  the  evidence \nthat the injury manifested itself within a reasonable period of time following the incident, \nso  that  the  injury  is  logically  attributable  to  the incident,  where  there  is  no  other \nreasonable  explanation  for  the  injury. Hall  v.  Pittman  Construction Co.,  234  Ark.  104, \n357 S.W.2d 263 (1962).  That is certainly the case here.  Claimant has, consequently, \nproven  by  a  preponderance  of  the  evidence  that  she  suffered  a  compensable right \nshoulder injury by specific incident. \nB. Medical Treatment \n Introduction.   Claimant  has  alleged  that  she  is  entitled  to  reasonable  and \nnecessary medical treatment in connection with her alleged shoulder and back injuries. \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 \n\nTAYLOR – H009300 \n \n22 \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 \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.  I find that Claimant has proven by a preponderance of the evidence \nthat she is entitled to reasonable and necessary medical treatment of her compensable \nright  shoulder injury.    Moreover,  I  have  reviewed  her  treatment  records  that  are  in \nevidence, and I find that she has proven by a preponderance of the evidence that all of \nthe  treatment  of  her  compensable  right  shoulder  injury  reflected  therein—including  her \npain   management   by   Dr.   Shields   and   the   additional   treatment   that   has   been \n\nTAYLOR – H009300 \n \n23 \nrecommended and/or performed in connection with her shoulder—was reasonable and \nnecessary. \n On  the  other  hand,  because  Claimant  has  not  established  that  she  sustained  a \ncompensable  back  injury,  she  has  not  met  her  burden  of  proving  her  entitlement  to \nreasonable and necessary treatment of it. \nC. Temporary Total Disability \n Introduction.    Claimant  has  also  alleged  that  she  is  entitled  to  temporary  total \ndisability  benefits  from  the  date  last  paid—May  12,  2022—to  a  date  yet  to  be \ndetermined.  Respondents disagree with this. \n Standards.  The compensable injury to Claimant’s right shoulder is unscheduled.  \nSee Ark. Code Ann. § 11-9-521 (Repl. 2012).  An employee who suffers a compensable \nunscheduled  injury  is  entitled  to  temporary  total  disability  compensation  for  that  period \nwithin the healing period in which he has suffered a total incapacity to earn wages.  Ark. \nState  Hwy.  &  Transp. Dept.  v.  Breshears,  272  Ark. 244,  613  S.W.2d  392  (1981).    The \nhealing  period  ends  when  the  underlying  condition  causing  the  disability has  become \nstable  and  nothing  further  in  the  way  of  treatment  will  improve  that  condition.   Mad \nButcher, Inc. v. Parker, 4 Ark. App. 124, 628 S.W.2d 582 (1982).  Also, a claimant must \ndemonstrate that the disability lasted more than seven days.  Id. § 11-9-501(a)(1). \n Evidence/Discussion.  During the hearing, Claimant testified as follows: \nQ. Have  you  been  back  to  work  for  Hino  at  any  time  since  this \naccident? \n \nA. No, sir. \n \n\nTAYLOR – H009300 \n \n24 \nThis is at odds with her earlier testimony that she initially continued to work after getting \nhurt.    This  is  confirmed  by  Stipulation  No.  3  and  her  contentions,  which  show  that  her \ntemporary total disability benefits did not begin until November 6, 2020; and that she is \nnot seeking them for any period prior to their cessation as of May 13, 2022.  Claimant \nacknowledged  during  her  testimony  that  following  her  release  by  Pearce,  she  worked \nfor three weeks for a home health provider.  She was able to do this because the client \nshe  was  assigned  only  required  care  that  fell  within  her  previously-assigned  light-duty \nrestrictions.  However, she was unable to continue when her assignment changed—and \nthe duties required in order to care for the new client increased. \n Dr.  Pearce,  based  upon  the  functional  capacity  evaluation,  which  showed  that \nClaimant  gave  an  extremely  unreliable  and  inconsistent  effort,  found  that  Claimant \nreached  maximum  medical  improvement  as  of  the  date  of  his  report  addendum,  April \n18, 2022, and released her to full duty.  Claimant’s testimony was that she was unaware \nof this, and would have attempted to go back to a full-duty job had she known. \n Based  upon  my  review  of  the  totality  of  the  credible  evidence,  I  credit  Dr. \nPearce’s opinion on this matter and find that the evidence preponderates that Claimant \nreached  the  end  of  her  healing  period on  April  18,  2022.    To  the  extent  that  Claimant \ncontinued  to  present  with  pain  in  her  right  shoulder  since  then,  I  note  that persistent \npain,  by  itself,  is  not  sufficient  to  extend  the  healing  period.   See  Mad  Butcher,  supra.  \nConsequently, she has not proven her entitlement to additional temporary total disability \nbenefits for any period. \n\nTAYLOR – H009300 \n \n25 \nD. Controversion \n Introduction.    Claimant  has  asserted  that  she  is  entitled  to  a  controverted \nattorney’s fee in this matter. \n Standard.    Arkansas  Code  Annotated  Section  11-9-715  (Repl.  2012)  is  the \nauthority in this matter.  This provision reads in pertinent part: \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 \nfinds  that  a  claim  has  been  controverted,  in  whole  or  in  part,  the \ncommission shall direct that fees for legal services be paid to the attorney \nfor  the  claimant  as  follows:    One-half  (½)  by  the  employer  or  carrier  in \naddition  to  compensation  awarded;  and  one-half  (½)  by  the  injured \nemployee  or  dependents  of  a  deceased  employee  out  of  compensation \npayable to them. \n \n (ii) The fees shall be allowed only on the amount of compensation \nfor indemnity benefits controverted and awarded. \n \nId. § 11-9-715(a)(1)(B) & (a)(2)(B)(i)-(ii).  (Emphasis added)  One of the purposes of the \nattorney's fee statute is to put the economic burden of litigation on the party who makes \nlitigation necessary.  Brass v. Weller, 23 Ark. App. 193, 745 S.W.2d 647 (1998). \n Discussion.    As  Stipulation  No.  3  has  established,  Respondents  ultimately \ncontroverted    Claimant’s    alleged    right    shoulder    injury—herein    proven    to    be \ncompensable—and  by  extension,  the  indemnity  benefits  that  were  paid  pursuant \nthereto.  Thus, the evidence preponderates that her counsel, the Hon. Andy L. Caldwell, \nis entitled to the controverted fee as set out above on the indemnity benefits  that were \npaid in connection therewith. \n\nTAYLOR – H009300 \n \n26 \nCONCLUSION AND AWARD \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 \npaid in a lump sum without discount, and this award shall earn interest at the legal rate \nuntil  paid,  pursuant  to  Ark.  Code  Ann.  §  11-9-809  (Repl.  2012).   See Couch  v.  First \nState Bank of Newport, 49 Ark. App. 102, 898 S.W.2d 57 (1995). \n Claimant’s  attorney  is  entitled  to  the  25  percent  (25%)  attorney’s  fee awarded \nherein,  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       Hon. O. Milton Fine II \n       Chief Administrative Law Judge","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H009300 KIMBERLY TAYLOR, EMPLOYEE CLAIMANT HINO MTRS. MFG. USA, INC., EMPLOYER RESPONDENT SOMPO AMER. INS. CO., CARRIER RESPONDENT OPINION FILED JANUARY 23, 2024 Hearing before Administrative Law Judge O. Milton Fine II on October 27, 2023, in Marion, Critten...","fetched_at":"2026-05-19T22:58:38.320Z","links":{"html":"/opinions/alj-H009300-2024-01-23","pdf":"https://labor.arkansas.gov/wp-content/uploads/Taylor_Kimberly_H009300_20240123.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}