{"id":"alj-H010070-2023-12-18","awcc_number":"H010070","decision_date":"2023-12-18","opinion_type":"alj","claimant_name":"Maria Delgado","employer_name":"Clarksville Footwear","title":"DELGADO VS. CLARKSVILLE FOOTWEAR AWCC# H010070 DECEMBER 18, 2023","outcome":"granted","outcome_keywords":["granted:5","denied:1"],"injury_keywords":["back","neck","concussion","strain"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/DELGADO_MARIA_H010070-20231218.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"DELGADO_MARIA_H010070-20231218.pdf","text_length":35060,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO. H010070 \n \nMARIA DELGADO, Employee                                                          CLAIMANT \n \nCLARKSVILLE FOOTWEAR, Employer                                                          RESPONDENT \n \nTRAVELERS INDEMNITY COMPANY, Carrier                                             RESPONDENT \n \n \n OPINION FILED DECEMBER 18, 2023 \n \n \nHearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Russellville, Pope County, \nArkansas. \n \nClaimant represented by ANDY L. CALDWELL, Attorney, Little Rock, Arkansas. \n \nRespondents represented by GUY ALTON WADE, Attorney, Little Rock, Arkansas. \n \n \n STATEMENT OF THE CASE \n  \n On September  26,  2023,  the  above  captioned  claim  came  on  for a hearing  at Russellville, \nArkansas.  A pre-hearing conference was conducted on May 18, 2023, and a pre-hearing order was \nfiled on that same date.  A copy of the pre-hearing order has been marked as Commission’s Exhibit \n#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 this claim.  \n            2.   The employee/employer/carrier relationship existed on November 6, 2020.  \n            At the pre-hearing conference the parties agreed to litigate the following issues: \n            1.  Compensability regarding claimant’s jaw, back, and leg injuries. \n            2.  Whether claimant is entitled to additional medical treatment regarding a neurological injury  \n                to the head. \n\nDelgado-H010070 \n2 \n \n \n          3.   Whether claimant is entitled to temporary total disability benefits from November 7, \n            2021, to a date yet to be determined. \n          4.  Compensation rate. \n          5.  Whether claimant is entitled to mileage and out of pocket medical expenses. \n          6.  Attorney’s fees. \nAt the hearing, claimant added an issue regarding the compensability of claimant’s injuries to \nher  eyes  and  ears.    This additional  issue  had  been  raised  in  claimant’s  amended  prehearing \nquestionnaire, and respondent had no objection to this issue being added to those set forth above.  \nAfter the hearing, the parties stipulated claimant had an average weekly wage of $448.80, which \nwould provide a temporary total disability rate of $299. \n All other issues are reserved by the parties. \n The  claimant  contends\n1\n that “claimant’s average weekly wage will be determined by the \ncontract of hire, wage records and Arkansas law. Claimant contends that her average weekly wage was \n$448.80 at the time of her injury. Respondents have paid her at the incorrect rate. Claimant is entitled \nto an underpayment and her attorney is entitled to a fee for same. On or about November 6, 2020, \nthe claimant sustained compensable injuries to her head, eyes, ears, jaw, back, and legs in the course \nand scope of her employment while falling from a ladder. The respondents accepted the claim and \npaid   certain   benefits. Respondents   state   that   they   have   accepted   compensable   head   injury. \nRespondents have controverted the claimant’s entitlement to additional benefits. Respondents paid \ntemporary total disability from the date of injury until November 6, 2021, albeit at the incorrect rate. \nThe claimant contends that she is entitled to an underpayment and attorney’s fees for same. The \n \n1\n These contentions are from the amended pre-hearing questionnaire claimant submitted after the pre-hearing order \nwas entered. (CL.NM.X.2) \n\nDelgado-H010070 \n3 \n \n \nclaimant also contends that she is entitled to temporary total disability from November 7, 2021, to a \ndate yet to be determined. The claimant is also entitled to additional treatment for her compensable \ninjuries or compensable consequences thereof. Dr. Morse has recommended additional treatment for \nthe claimant’s head injury and symptoms, which  have  been  denied.  Dr. Bolding  has  recommended \nadditional  treatment  for  her  TMJ  which  has  been denied.  The  claimant  is  entitled  to  ongoing  pain \nmanagement  for  her  back  injury.  Respondents  accepted  and  paid  for  some  benefits  pertaining  to \nclaimant’s ear and eye injuries. Respondents have not admitted that the claimant sustained admittedly \ncompensable injuries to her eyes and ears. Claimant requests a determination as to compensability and \na  finding  that  all  treatment  for  those  was  reasonable,  necessary,  and  causally  related  to  her \ncompensable  injuries  or  a  compensable  consequence  therefrom.  Upon  information  and  belief,  the \nclaimant’s group health providers have paid some of those benefits. Respondents should be required \nto pay all reasonable and necessary medical expenses for all compensable injuries and compensable \nconsequences; reimburse the group health providers and the claimant for any out-of-pocket expenses \nand  mileage,  where  necessary. The  claimant  contends  her attorney  is  entitled  to attorney’s fees. All \nother issues are reserved.” \n The respondents contend that “they accepted and paid the medical and indemnity benefits \nrelated  to  the  November  6,  2020, event. Claimant’s present complaints are related to preexisting \nconditions/events for which respondents are not responsible.” \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 \nwitnesses and to observe their demeanor, the following findings of fact and conclusions of law are \nmade in accordance with A.C.A. §11-9-704: \n \n\nDelgado-H010070 \n4 \n \n \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  and \ncontained in a pre-hearing order filed that same date are hereby accepted as fact, as is the stipulation \nby the parties as to the claimant’s average weekly wage of $448.80 per week. \n 2.  Claimant has met her burden of proving that she is entitled to additional medical treatment \nfor her compensable head injury of November 6, 2020.  \n 3.  Claimant has met her burden of proving that she suffered a compensable injury to her right \njaw on November 6, 2020, and is entitled to medical benefits for that injury.  \n 4.   Claimant  failed  to  meet  her  burden  of  proving  that  her  back  and  leg were injured  on \nNovember  6,  2020, or that  the  issues  she  has  with  those  parts  of  her  body  were a  natural  and \ncompensable consequence of the accident that occurred on that day.  \n 5.  Claimant met her burden of proving that she suffered a compensable injury to her right eye \nand the treatment for that injury was reasonable and necessary, but failed to meet that burden for her \nprescription lenses following the accident.  \n 6.  Claimant met her burden of proving she suffered a compensable injury to her right ear that \nresulted in posterior canal Benign Paroxysmal Positional Vertigo (BPPV) on November 6, 2020, and \nthe medical treatment for that injury was reasonable and necessary.  Claimant failed to prove that her \nbilateral hearing loss was a result of her compensable injury.  \n 7.          Claimant  met  her  burden  of  proof  that  she  was  entitled  to  temporary  total  disability \nbenefits until December 27, 2021, but failed to prove she was entitled to additional temporary total \ndisability benefits after that date.  \n 8.   Respondent  is  liable  for  payment  of  all  reasonable  and  necessary  medical  treatment \nprovided in connection with claimant’s compensable injuries, and for mileage for claimant’s travel to \n\nDelgado-H010070 \n5 \n \n \nall such medical providers.  \n 9.  Respondent has controverted claimant's entitlement to all unpaid indemnity benefits. \n \n FACTUAL BACKGROUND \n As mentioned above, claimant filed an amended prehearing questionnaire on July 10, 2023, \nafter the prehearing order of May 18, 2023, was entered.  A telephone conference between the parties \nand the Court took place shortly thereafter.  Respondents’ attorney advised that he did not need to \nfile an additional prehearing questionnaire in response to the amended prehearing questionnaire, and \nI told the parties that I would simply announce the amended issues at the hearing rather than doing a \nnew order.   \n At  the  hearing,  the  issues  were individually recited,  and  both  parties announced  they  were \nready to proceed at the hearing on those recited issues.     \n Claimant objected to portions of Respondent’s Medical Exhibit (pages 1-7 and 85-88).  The \nobjection was based on when the records were received by claimant.  As these were turned over within \nseven days of the hearing, I admitted both over claimant’s objection.    \n At the conclusion of the hearing, I requested briefs from the parties outlining their position \non  the  various  issues  presented.  The excellent  briefs submitted  by  each  party  were  very  much \nappreciated.  \nHEARING TESTIMONY \n \n Claimant testified that on November 6, 2020, she was working as a cleaner for respondent. \nOn that date, she was on a ladder cleaning a window and fell from the third rung of the ladder. She \nwas  unaware  that  she  had  lost  consciousness  but  was  told  by  Rosa  Torres,  the  HR  person  for \nrespondent, that she had done so. She remembers sitting on a rock outside of the building surrounded \nby  several  employees  of  respondent.  She  was  taken  to  the  hospital  in  Clarksville  and  then  sent  by \n\nDelgado-H010070 \n6 \n \n \nhelicopter to Little Rock. Claimant said that her head hurt, and her neck had been immobilized with \na collar. She related swelling on the right side of her head and testified that her neck “had a little ball \nthat would inflate and then go down and inflate and go down.”  \n After the fall, claimant testified to other problems that she has had that she attributed to the \nfall. These include sensitivity to sound and noise on her left side, jaw pain on the right side of her \nhead, issues with her low back when she is walking, and the pain radiates from her back into her right \nleg. She said because of the pain in her right leg, it can’t hold her weight and it has caused her to fall. \nClaimant said that she has had problems with her vision since the accident, as lights and headlights \nfrom cars affect her at night. Claimant testified that she had headaches that were different from the \nhigh  blood  pressure  headaches  she  had  prior  to  the  accident.  She  also  stated  that  she  had  trouble \nsleeping due to pain and nightmares. \n As of the date of the hearing, claimant said she had not been released to fully return to work. \nShe has been approved for social security disability as of May 2023. She had hearing aids prescribed \nbut wasn’t wearing them on the date of the hearing, as they were being repaired.  \n On cross-examination, claimant related her employment history prior to the date of the fall, \nwhich included working in retail, cutting hair, and working in the plant at Clarksville Footwear in the \nsewing department before she began her position as a cleaner. Claimant said that she had some medical \nconditions  before  this  injury  in  November  2020,  including  high  blood  pressure,  diabetes,  high \ncholesterol, a thyroid issue, and was on medication to protect her liver. She had not had any surgery \neither related to this accident or otherwise, as of the date of the hearing. \n Claimant  said  she  was  working  in  the  cleaning  department because  of  some  issues  she  had \nwith her back before November 6, 2020. \n Since  the  accident,  claimant  testified  that  she  makes  pinatas  and  earns  between  $60.00  and \n\nDelgado-H010070 \n7 \n \n \n$120.00 per month doing that. She can drive to familiar places such as Walmart or church. She can \ncook, clean, and do some laundry but not like she did before the fall. As of the date of the hearing, \nclaimant was not using a cane, a brace, or a walker, nor was she wearing glasses, but she said that was \nbecause she was not reading. \n Claimant said she showed the knot on her head to the doctors in Clarksville and in Little Rock. \nShe was going to physical therapy at the hospital in Clarksville. At the first physical therapy session, it \nwas mentioned to her that she might be referred to a different neurologist but had not been referred \nto an orthopedist or a neurosurgeon for her back complaints. \n On redirect, claimant clarified that she was not contending that she was blind or deaf, but her \neyesight and hearing has become worse since the accident. \n  Claimant’s daughter, Perla Delgado (referred to as “Perla” to eliminate confusion) testified \nthat she is currently living with her mother and has for her entire 29 years of life. She has observed \nher mother’s physical and mental condition before and after the accident and has noticed physical and \nemotional changes. She has seen where her mother has been limited in many ways since the incident \nas  far  as  walking  and  the  amount  of  pain  she  has.  Emotionally, Perla  said her  mother was more \nwithdrawn and  defensive.  Her  interaction  with  her  grandchildren  has  changed.  Claimant is  not  as \npatient as she used to be and seems irritable. Perla had noticed problems with her mother’s memory \nand  had  observed  the  difficulties  that  claimant  had walking  and getting  in  and  out  of  a  truck.  She \nstated that claimant can still do some household chores, but such take her longer than it did before \nthe accident. Perla accompanied her mother on doctor’s visits to serve as an interpreter on occasions \nand observed that her mother had difficulty communicating the complaints that she was having to her \ndoctors.  \n On cross-examination, Perla admitted that she did not see the accident, as she was not working \n\nDelgado-H010070 \n8 \n \n \nat Clarksville Footwear when her mother fell. She said that claimant can drive now because her focus \nis better; immediately after the accident, they didn’t allow her to do so because claimant was confused \nas to where she was. Perla was unaware that the neurologist had determined that claimant had reached \nmaximum medical improvement.  \n On redirect examination, Perla said that she saw her mother in the early morning of the day \nafter  her  accident and  there  were  two  nurses  that  helped  claimant  get  up  to walk  as  she  was  being \ndischarged. Perla saw the throbbing of claimant’s neck and the swelling on claimant’s head on her \nright side above her ear.  \nREVIEW OF THE EXHIBITS \n \n Between them, the parties submitted approximately 500 pages of medical records, making an \noverall review of them somewhat unwieldy. Instead of such a review, the records relevant to each of \nthe individual claims will be addressed in the appropriate section of the adjudication.   \n Claimant’s non-medical exhibits included payment details, forms filed with the Commission, \nand  several  medical  bills. Respondent  submitted  a  wage  audit  report.  Again,  these  records  will  be \ndiscussed in the appropriate section of the adjudication portion of this opinion.      \nADJUDICATION \n \n Claimant seeks  additional  compensation  for  the  admitted head  injury,  and  for  a  finding  of \ncompensability  for  an  additional five separate  injuries—eyes,  ears, jaw, back  and  right  leg.  The \nprehearing order was a bit nebulous as to what specific injuries respondent accepted as related to the \nNovember 6, 2020, event.  In its brief, respondent clarified that it accepted “that claimant sustained a \nconcussion when she fell descending a stepladder,” but maintains claimant reached maximum medical \nimprovement (MMI) for that injury on or about November 20, 2021, and further disputes that the \nother injuries were related to her compensable head injury. These will be addressed individually below.  \n\nDelgado-H010070 \n9 \n \n \n1. Is claimant entitled to additional medical treatment for her compensable head injury?  \nA claimant can continue to receive medical treatment for a compensable injury after she has \nreached maximum medical improvement (MMI): “(A) claimant may be entitled to ongoing medical \ntreatment after the healing period has ended, if the medical treatment is geared toward management \nof the claimant's injury. Patchell v. Wal-Mart Stores, Inc., 86 Ark. App. 230, 184 S.W.3d 31 (2004). I find \nthat  claimant  is  entitled  to  continued  treatment by  Dr.  Morse for  her  headaches,  as  that  treatment \nappears  to  be  geared  to managing  her  migraines,  which  I  attribute  to  her  compensable  injury  of \nNovember 6, 2020.  In  reviewing Claimant’s Exhibit #2, I do  not see payments for that  treatment \nbeyond January 2022, and those entries were likely for the December 27, 2021, visit with Dr. Morse. \n2.  Was claimant’s TMJ caused by her fall of November 6, 2020, or alternatively, is it a  \n compensable consequence of that fall? \n Claimant contends  that  her  TMJ  was  either  caused  by  the  fall  or  was  a  compensable \nconsequence  of  her  compensable  head  injury.   Respondents counter  that the maxillofacial  CT \nperformed  on  November  6,  2020,  did not reveal  any facial  fractures,  and  an  MRI  performed in \nSeptember 2021 showed only degenerative changes.  \nWhen  she  fell,  claimant landed  with  enough  force  to  produce  an occipital  scalp  hematoma \nwithout laceration on the right side of her head. (R.X. page 34) Many of the records mention that she \nhad a traumatic brain injury.  She first reported she was having pain in her right jaw—the same side \nof her head that was swollen after the fall—within a week of the incident.   Dr. Scotty Bolding did not \nsee claimant until July 26, 2021, on a referral from  One Call Dental (records from which were not \nprovided).  He ordered an MRI, which wasn’t performed until September 24, 2021.  The impression \nwas:  \n1. Degenerative change involving both temporomandibular joints with normal recapture of \nthe disc with closed mouth technique. \n\nDelgado-H010070 \n10 \n \n \n2. Degenerative change involving both discs and partial tears cannot be excluded. \n3. Normal anterior translation of the mandibular and discs relative to the eminence with open \nmouth technique.  \n4. No medial or lateral subluxation of either disc   \n \n \n Dr. Stephen Kirkpatrick reviewed many of the medical records relating to this claim, and wrote \na  report  dated  December  17,  2021.  While he  said  claimant  has  a  temporomandibular  disorder,  he \nopined the TMJ was not related to her fall in November 2020.  Perhaps inadvertently, he provided an \nexplanation why nothing was done to treat claimant’s reported jaw issue from November 12, 2020, \nuntil she  saw  Dr. Bolding:    She  was  being  treated  for “her  chief  complaints of  dizziness  and  other \ncognitive issues,” as well as beginning a course of physical therapy for her complaints of back and leg \npain.  There was no reason for her to tell the neurologist or those treating other parts of her body \nabout the jaw issue, because those providers were focused on other problems.  \n In reviewing decisions by the Court of Appeals and the Full Commission, I find claimant has \nproven by a preponderance of the evidence that she suffered TMJ on her right side because of the \nfall.    That  she  had  degenerative  changes in  her jaw  is  no  bar  to  recovery; \"An  employer  takes  the \nemployee as he finds him, and employment circumstances which aggravate pre-existing conditions are \ncompensable.\" Heritage Baptist Temple v. Robison, 82 Ark. App. 460, 464, 120 S.W.3d 150, 152 (2003) \n(quoting Nashville  Livestock  Comm'n  v.  Cox,  302  Ark.  69,  73,  787  S.W.2d  664,  666  (1990)).  An \naggravation  of  a  preexisting, non-compensable condition  by  a  compensable  injury  is,  itself, \ncompensable. Williams v. L&W Janitorial, Inc., 85 Ark. App. 1, 145 S.W.3d 383 (2004). \n In Convers  v.  Girl  Scouts  of  Northwest  Arkansas, 2011 AR  Wrk.  Comp.  LEXIS  233, the  Full \nCommission reviewed the records and deposition of the same Dr. Bolding that treated claimant in \nthis case.  It quoted his testimony in the adjudication section of its opinion:  \n \nWe reiterate Dr. Bolding's testimony, \"The jaw joint is not - you know, it's \n\nDelgado-H010070 \n11 \n \n \nessentially, a loose bone attached by soft tissues to the skull. So any type of \nsignificant blow that moves the body or the head and neck area where - there \ndoesn't have to be a direct blow on the jaw, but just the - the significant force \nof a - a sudden stop or a sudden jolt a different way can stretch the ligaments \nor stretch the - the tissues within the joint to create the inflammatory process \nthat she, ultimately, developed the symptoms on.\" \n \nBased on our de novo review of the entire record, the Full Commission finds \nthat  the  claimant  proved  her  temporomandibular  joint  dysfunction  was  a \nnatural consequence flowing from the May 8, 2008, compensable injury. The \nFull  Commission  finds  that  there  was  a  causal  connection  between  the \ncompensable injury and Dr. Bolding's treatment recommendations.   \n \n \n  Given no records or testimony of claimant having TMJ issues before November 6, 2020, the \nseverity of the fall she suffered that day, and her mention of jaw pain as early as November 12, 2020, \nthat  has  not  been  treated,  I  find  claimant  is  entitled  to  medical treatment on  her  right  jaw as \nrecommended by Dr. Bolding. \n 3.  Is claimant’s back and leg injury caused by her fall of November 6, 2020, or alternatively, \nis it a compensable consequence of that fall? \n  In her brief, claimant noted that in the medical records from Johnson Regional Medical Center \n(CL.X, page 8), she was prescribed Meloxicam at the hospital on the date of her fall, and “Meloxicam \nis  a  medication  used  to  treat  pain,  swelling  and  stiffness.    A  diagnosis  of  muscle  strain  along  with \nprescribed treatment of medication and pain management is sufficient to establish objective findings \nof a compensable injury.” This  is  a  misreading  of  that  record;  Meloxicam  was  among  the  list  of \nmedicines  that  claimant  was  taking  prior  to  her  fall. If  it  was  for  her  back  and  leg  issues,  those \nconditions  existed  before  November  6,  2020.  Likewise,  the  prednisone prescription  of  January  5, \n2021, was following an examination by Dr. Karthika D. Veerapaneni, and the reason for the visit was \n“dizziness, blurred vision, personality change, sadness, visual color changes, injury of head, sequela, \nabnormal CT scan and memory changes.” (CL.X.69) There was no mention of back or leg problems \n\nDelgado-H010070 \n12 \n \n \nthat would have resulted in a prescription for prednisone as a treatment.   \nRespondent denied claimant can prove the problems claimant has with her back and right leg \nare related to her compensable fall, alleging the first report of issues with her back and leg was January \n26, 2021.  That is partially correct; the note from UAMS on January 5, 2021 (CL.X.68), mentions that \nclaimant has a history of stumbling from her right leg, but there was no reference to her back injury \nuntil January 26, 2021.  Unlike the jaw injury discussed in the previous section of this opinion which \nwas  reported  a  few  days after  the  accident,  it  was  two  months  before  a  problem  with  her  leg  was \nmentioned and three weeks after that before the problem with her back was noted in the records.   \nClaimant did not cite any objective evidence to support her claim that her back and leg were \ninjured because of that accident, and I saw nothing from a medical provider that linked the fall with \nthe back and leg complaints.  \nThe  Arkansas  Supreme  Court  in Wal-Mart  Stores,  Inc.  v.  VanWagner,  337  Ark.  443,  447,  990 \nS.W.2d 522, 524 (1999) stated: \n\"The plethora of possible causes for work-related injuries includes many that \ncan be established by common-sense observation and deduction. To require \nmedical proof of causation in every case appears out of line with the general \npolicy of economy and efficiency contained within the workers' compensation \nlaw. To  be  sure,  there will  be  circumstances  where  medical  evidence  will  be \nnecessary  to  establish  that  a  particular  injury  resulted  from  a  work-related \nincident but not in every case.\" (Emphasis added).  \n \nGiven claimant was already prescribed Meloxicam, which she cited as support for her back \nand  leg  injury, as  well  as the  delay  in  reporting  the  back  and  leg  injuries, and  the  lack  of  objective \nmedical evidence tying those injuries to the accident, I find claimant has failed to meet her burden of \nproof on this portion of her claim.  \n4.  Did claimant suffer damage to her eyes and ears which were caused by her fall of November \n6, 2020, or alternatively, a compensable consequence of that fall? \n\nDelgado-H010070 \n13 \n \n \nUnlike  the  previous sections, there were records submitted regarding claimant’s vision and \nhearing from before November 6, 2020.  Claimant was seen in 2015 at UAMS for vision problems.  \nThe impression after that examination was “Orbital right optic nerve with enhancement consistent \nwith optic neuritis. There are several scattered areas a deep and superficial areas of abnormal signal in \nthe white matter as well. These are moderately suggestive of multiple sclerosis.”   When seen by Dr. \nJoseph Chacko on February 24,  2021,  he  recorded  that  claimant  had “post-traumatic syndrome  + \nphotophobia. Fell off ladder 11/2020, hit head and had black eye OS\" “OS” is the abbreviation for \n“left  eye  oculus  sinister.”\n2\n  As claimant’s fall was over two and a half months before she saw Dr. \nChacko, I believe this entry is based solely on what he was told by claimant and not what he observed.  \nPhotophobia can be caused by optic neuritis\n3\n, and I believe claimant’s fall aggravated her pre-existing \noptic neuritis condition.  Dr. Chacko’s notes from his visit with claimant on March 9, 2022, repeated \nhis previous chart entries, but added “?R trigeminal neuralgia.”  \nMuch like Dr. Morse’s notes were for his purposes and not mine, I believe Dr. Chacko knows \nexactly what he meant by this entry; my interpretation of it is that he suspects but is not positive that \nclaimant has trigeminal neuralgia in her right eye.  That condition has many causes, one of which is \nfacial trauma.\n4\n  I am satisfied that claimant has shown by a preponderance of the evidence that the \nblow to her head aggravated a pre-existing condition, and that medical treatment for her right eye is \nrelated to her compensable injury and is reasonable and necessary.  I do not find claimant proved by \na preponderance of the evidence any other work-related injury to her eyes; the optical prescription did \nnot  mention  the  blow  to  the  head  being  the  cause,  and I  cannot  say  without  speculation  that  the \ndecreased vision that required corrective lenses was due to the accident.   \n \n2\n https://www.aao.org/young-ophthalmologists/yo-info/article/ophthalmic-abbreviations-101 \n3\n https://my.clevelandclinic.org/health/symptoms/photophobia \n4\n https://www.mayoclinic.org/diseases-conditions/trigeminal-neuralgia/symptoms-causes/syc-20353344 \n\nDelgado-H010070 \n14 \n \n \nAs  for her  claim  for  ear  damage, claimant  was  diagnosed  with posterior  canal  Benign \nParoxysmal Positional Vertigo on April 19, 2021, and she began treatment via canalith repositioning \nmaneuvers on May 4, 2021.  That treatment was successful as per the May 17, 2021, report by Dr. \nHsin Wei Huang.  While BPPV can be idiopathic, it is also associated with a minor or severe blow to \nthe head when such is known to have occurred.\n5\n As such, I find the BVVP is a compensable injury. I \ncannot tell from looking at claimant’s Exhibit #2 if respondent covered this treatment, but I find it \nwas reasonable and necessary and should have been paid.    \nRegarding the request for hearing aids, I note that Dr. Huang found “a mild decrease in hearing \nin the right and a significant decrease in hearing on the left since the last hearing evaluation done at \nwork in September 2020.” (R.X.81) Unlike  the  BVVN,  I  cannot see  a  common-sense  connection \nbetween a concussion and hearing loss that comes to many people in their fifties that never had that \ninjury.    Dr.  Huang  did  not  try  to  connect  the  injury  with  the  diminished  hearing,  and  I  decline  to \nspeculate  that  the  two  are related.   However,  it  appears to  be  a  moot  point,  because  the  records \nindicate that respondent paid for the hearing aids.     \n5.  Was claimant released at MMI on October 26, 2021, for the compensable concussion \ninjury, thus ending her claim for temporary total disability?  \nTo be  entitled  to TTD benefits  for  an  unscheduled  injury,  the  claimant  must  prove  by  a \npreponderance of the evidence that she remains within her healing period in which she suffers a total \nincapacity to earn wages. Arkansas State Highway & Transportation Department v. Breshears, 272 Ark. 244, \n613 S.W. 2d 392 (1981). \nRespondent cites the October 26, 2021, note from Dr. Michael Morse to support its position  \nthat claimant has reached MMI: “Yolanda, I would say that the patient is at MMI at this time.  There \n \n5\n https://www.mayoclinic.org/diseases-conditions/vertigo/symptoms-causes/syc-20370055 \n\nDelgado-H010070 \n15 \n \n \nis no additional evaluation necessary.” (CL.X.201) This was in response to an inquiry from Ms. \nYolonda Reyes at Travelers Insurance, in which she asked “Do you believe she [Ms. Delgado] is close \nto reaching maximum medical improvement? We hope the Botox injections bring her relief and her \nsymptoms improve enough to get her back into the work force in some capacity.” (CL.X.202).   \nClaimant maintains that Dr. Morse placed her at MMI but only for her headaches. That does \nappear to be his emphasis in his course of treatment and continued to be so after he deemed claimant \nto be at MMI.   I note in his records, Dr. Morse restricted claimant from work on September 30, 2021, \nuntil  he  saw  her  again  on  December  27,  2021.  Following  that  visit,  he  did  not  renew  his  work \nrestrictions; the only other mention of claimant’s work was in the July 27, 2022, entry: “She has not \nbeen able to return to work,” but that was in the context of claimant relating the issues she was having \nwith her back.  Dr. Morse did not again restrict claimant from working to earn wages.   \nI recognize that Dr. Morse’s notes are somewhat confusing from a legal perspective; those \nwere prepared for his use, and I am sure they make sense to him.  He was not asked to clarify why he \nplaced claimant at MMI during the time that he had told her to stay off work for 12 weeks.  As such, \nI find that claimant’s TTD period for her head injury should have ended on December 27, 2021, as \nthere is no indication that she had been told by her physician she could return to work before that \ndate.  \n6.  Did any of the other physical injuries that I have determined to be compensable render \nclaimant unable to earn wages?   \nAs for the other physical issues discussed above, I did not find that a physician removed her \nfrom work for her TMJ, or the compensable problems with her eyes or ears.  I therefore cannot find \nshe was temporarily totally disabled from any of those conditions.   \n7. Was claimant underpaid for temporary total disability benefits?  \n\nDelgado-H010070 \n16 \n \n \n At the hearing, the parties contested the compensation rate.  As noted above, an agreement \nwas reached that claimant’s average weekly wage was $448.80,  yielding  a TTD rate  of  $299.00 per \nweek.  Claimant received three checks in the amount of $598.00, representing six weeks of disability \npayments.  Respondent underpaid  the  remainer  of  her TTD payments  by paying  only  $262.00 per \nweek for the remainder of the time it paid those benefits. (CL.NMX.#2, page 1)\n6\n Claimant is entitled \nto the underpayment and as per my ruling earlier in this opinion, the benefits should be calculated to \nDecember 27, 2021. \n 8.  Is claimant entitled to mileage and out of pocket expenses?  \n Claimant submitted several medical bills as part of her Exhibit #2.  Taking them in that order:  \na.  Clarksville Family Eye Clinic from March 11, 2021: There was no mention of what \nthis bill was for, but it came within a few weeks of Dr. Chacko’s prescription  for \neyeglasses (CL.X.1, page 112), and if it relates to eyeglasses, my earlier ruling denied \nthis as a compensable expense.  \nb. St. Mary’s Physicians Services: This relates to a cardiology claim which was not a part \nof the issues to be decided in this case and is therefore reserved.  \nc. Survival Flight, Inc.:  This is for the airlift to UAMS on the date of her accident and is \ncompensable as a reasonable and necessary expense.  \nd. Radiologists of Russellville:  This is for services provided on the date of her accident \nand is compensable as a reasonable and necessary expense.  \ne. Washington Regional:  This statement does not have dates of service included, but if \nit  is  for  services  provided  by  Dr.  Morse  at  any  time for claimant’s concussion,  my \n \n6\n There was an unexplained single payment of $301.00 shown on that exhibit.  Respondent should recalculate the \nentire amount due to claimant and is entitled to credit for all payments made at the incorrect rate for TTD.  \n\nDelgado-H010070 \n17 \n \n \nearlier ruling accepts this as compensable as a reasonable and necessary expense.  \nf. UAMS:  This is for services provided on the date of the accident and is compensable.  \ng. Arkansas Medical Imaging, Inc.  This is for an MRI related to claimant’s TMJ, and my \nearlier ruling accepts this as compensable as a reasonable and necessary expense.  \n  For any travel to a physician that I have found to be a reasonable and necessary expense, she \nis entitled to her mileage expense.  \nORDER \n Respondents  are  directed  to  pay  benefits  in  accordance  with  the  findings  of  fact  set  forth \nherein this Opinion. \n All 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. \n Pursuant 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. \n All issues not addressed herein are expressly reserved under the Act. \n Respondent  is  responsible  for  paying  the  court  reporter  her  charges  for  preparation  of  the \ntranscript in the amount of $1,173.65. \n IT IS SO ORDERED. \n                                                                                              \n_______     \n JOSEPH C. SELF \nADMINISTRATIVE LAW JUDGE","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H010070 MARIA DELGADO, Employee CLAIMANT CLARKSVILLE FOOTWEAR, Employer RESPONDENT TRAVELERS INDEMNITY COMPANY, Carrier RESPONDENT OPINION FILED DECEMBER 18, 2023 Hearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Russellville, Pope County, Arkansas....","fetched_at":"2026-05-19T22:59:47.118Z","links":{"html":"/opinions/alj-H010070-2023-12-18","pdf":"https://labor.arkansas.gov/wp-content/uploads/DELGADO_MARIA_H010070-20231218.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}