{"id":"alj-H102269-2023-03-01","awcc_number":"H102269","decision_date":"2023-03-01","opinion_type":"alj","claimant_name":"Hershel Hice","employer_name":"Logan County","title":"HICE VS. LOGAN COUNTY AWCC# H102269 MARCH 1, 2023","outcome":"denied","outcome_keywords":["dismissed:1","denied:3"],"injury_keywords":["back","shoulder","fracture","cervical","neck","lumbar"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/HICE_HERSHEL_H102269_20230301.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"HICE_HERSHEL_H102269_20230301.pdf","text_length":8724,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nCLAIM NO.  H102269 \n \nHERSHEL HICE, Employee                                                                                                      CLAIMANT \n \nLOGAN COUNTY, Employer                                                                      RESPONDENT \n \nASSOCIATION OF ARKANSAS COUNTIES WCT, Carrier                       RESPONDENT \n \n \n \nOPINION FILED MARCH 1, 2023 \n \nHearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Fort Smith, \nSebastian County, Arkansas. \n \nClaimant represented by MATTHEW J. KETCHAM, Attorney, Fort Smith, Arkansas. \n \nRespondents represented by MICHAEL E. RYBURN, Attorney, Little Rock, Arkansas. \n \n \n \nSTATEMENT OF THE CASE \n \n On  February  6,  2023,  the  above  captioned  claim  came  on  for  a  hearing  at  Fort \nSmith, Arkansas.  A pre-hearing conference was conducted on December 14, 2022, and \na  pre-hearing  order  was  filed  on  that  same date.   A  copy  of  the  pre-hearing order has \nbeen marked as Commission’s Exhibit #1 and made a part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n1. The Arkansas Workers’ Compensation Commission has jurisdiction of the  \nwithin claim. \n2.   The claimant sustained a compensable injury to his low back on February 19,  \n2021. \n At the pre-hearing conference the parties agreed to litigate the following issues: \n\nHice – H102269 \n \n2 \n \n1. Compensability of injury to claimant’s right shoulder. \n2. Claimant’s entitlement to medical. \n The claimant contends he suffered a compensable injury to his right shoulder on \nFebruary  19,  2021.    He  contends  he  is  entitled  to  medical  as  a  result  of  the shoulder \ninjury. \n The  respondents  contend  the  claimant  slipped  and  fell  on  ice  on  February  19, \n2021.    His  initial  complaint  was  of  low  back.    An  MRI  revealed  a  pre-existing  sacral \nfracture.  No surgery was recommended.  He then complained about his cervical spine \nand  no  surgery  was  suggested.    Later,  he  started  to  complain  of  his  shoulder.   His \nshoulder  was  not  injured  in  this  accident.    He  has  no  objective  findings  of  a  shoulder \ninjury. \n From a review of the record as a whole, to include medical reports, documents, \nand other matters properly before the Commission, and having had an opportunity to hear \nthe testimony of the witness and to observe his demeanor, the following findings of fact \nand conclusions of law are made in accordance with A.C.A. §11-9-704: \n \nFINDINGS OF FACT & CONCLUSIONS OF LAW \n1.  The stipulations agreed to by the parties at a pre-hearing conference conducted  \non December  14,  2022  and  contained  in  a  pre-hearing  order  filed  that same  date  are \nhereby accepted as fact. \n2.    Claimant  has failed to prove by a preponderance of the evidence that  he  \nsuffered a compensable injury to his right shoulder on February 19, 2021. \n \n\nHice – H102269 \n \n3 \n \nFACTUAL BACKGROUND \n Claimant works for respondent’s road department and on February 19, 2021, he \nfell onto  an  icy  road  while  helping a coworker out of a ditch.  According to claimant’s \ntestimony, he fell flat onto his back. \n Medical records indicate that claimant was diagnosed with a closed fracture of the \nsacrum and coccyx and he also made some complaints of neck pain.  On March 15, 2021, \nclaimant was evaluated by Dr. Cheyne who noted that claimant was having both cervical \nand low back pain.  Dr. Cheyne prescribed physical therapy for both of those conditions. \n On April 1, 2021, claimant was again evaluated by Dr. Cheyne who noted that the \nphysical  therapy  had  not  provided  claimant  much  relief.    Dr.  Cheyne  indicated  that \nclaimant should continue with his medications, physical therapy, and he also ordered an \nMRI scan of the lumbar spine. \n Apparently, Dr. Cheyne also ordered an MRI scan of claimant’s cervical spine \nwhich was performed on September 16, 2022, and revealed mild disc degeneration.  On \nOctober 4, 2022 claimant did a telephonic visit with Dr. Barry Katz.  In his report of that \ndate, Dr. Katz stated: \nHe continues with shoulder pain greater than neck pain.  His \ncervical MRI does not show severe stenosis.  We talked about \noptions.  I will send him for pain management for his neck and \nto ortho to evaluate his shoulder.  We will follow up and make \nfurther recommendations. \n \n Claimant has filed this claim contending that he suffered a compensable injury to \nhis right shoulder on February 19, 2021 and is requesting recommended treatment for his \nright shoulder. \n \n\nHice – H102269 \n \n4 \n \nADJUDICATION \n Claimant contends that he suffered a compensable injury to his right shoulder on \nFebruary 19, 2021.  Claimant’s claim with regard to his right shoulder is a specific injury \nidentifiable by time and place of occurrence.     In order to prove a compensable injury as \nthe  result  of  a  specific  incident  that  is  identifiable  by  time  and  place  of  occurrence,  a \nclaimant must establish by a preponderance of the evidence (1) an injury arising out of \nand in the course of employment; (2) the injury  caused internal or external harm to the \nbody  which  required  medical  services  or  resulted  in  disability  or  death;  (3)  medical \nevidence  supported  by  objective  findings  establishing  an  injury;  and  (4)  the  injury  was \ncaused by a specific incident identifiable by time and place of occurrence.  Odd Jobs and \nMore v. Reid, 2011 Ark. App. 450, 384 S.W. 3d 630. \n Initially,  it  should  be  noted  that  respondent  has  only  stipulated  that  claimant \nsuffered a compensable injury to his low back.  While claimant did receive some medical \ntreatment  for  his  neck  following  his  injury,  respondent  has  not  stipulated  that  claimant \nsuffered  a  compensable  injury  to  his  neck  and  no  claim  has  been  filed  by  claimant \ncontending that he suffered a compensable injury to his neck.  Instead, the only issue is \nwhether claimant suffered a compensable injury to his right shoulder. \n After my review of the relevant evidence, I find that claimant has failed to meet his \nburden of proving by a preponderance of the evidence that he suffered a compensable \ninjury to his right shoulder on February 19, 2021.  Specifically, claimant has failed to offer \nmedical  evidence  supported  by  objective  findings  establishing  a  compensable injury.  \n“Objective  findings” are  defined  as  findings  which  cannot  come under  the  voluntary \ncontrol of the patient.  A.C.A. §11-9-102(16)(A)(i).   Here, it is claimant’s contention that \n\nHice – H102269 \n \n5 \n \nhis treating physicians originally believed that his complaints involved his neck, but that \nthose  treating  physicians  now  believe  that  his  complaints  are  coming  from  his  right \nshoulder. \n As  previously  noted,  respondent  has  never  accepted  liability  for  a  compensable \ninjury involving claimant’s neck and claimant has not made a claim for an injury to his \nneck.    Dr.  Katz  indicated  that  he  would  refer  claimant  to  an  orthopedic  surgeon  for  an \nevaluation of the shoulder.  Claimant was apparently evaluated by a nurse practitioner, \nPatrick Walton, who recommended an MRI scan of claimant’s right shoulder; however, \nthat MRI scan has not been performed and no other testing on claimant’s right shoulder \nhas been performed.   Furthermore, there are no other objective findings regarding the \nshoulder noted in the medical evidence.  Therefore, there is no objective evidence of an \ninjury to claimant’s right shoulder.  Absent objective findings, claimant cannot meet his \nburden of proving by a preponderance of the evidence that he suffered a compensable \ninjury to his right shoulder. \n In short, in order to prove a compensable injury to his right shoulder, claimant must \noffer  medical  evidence  supported  by  objective  findings  establishing  his  injury.    Here, \nclaimant  has offered no  objective findings  regarding  his  right  shoulder.     Therefore,  he \nhas failed to meet his burden of proof. \n \nORDER \n Claimant  has  failed  to  meet  his  burden  of  proving  by  a  preponderance of  the \nevidence  that  he  suffered  a  compensable  injury  to  his  right  shoulder  on  February  19, \n2021.  Therefore, his claim for compensation benefits is hereby denied and dismissed. \n\nHice – H102269 \n \n6 \n \n Respondents are liable for payment of the court reporter’s charges for preparation \nof the hearing transcript in the amount of $253.95. \n IT IS SO ORDERED. \n \n \n      _____________________________________ \n       GREGORY K. STEWART \n       ADMINISTRATIVE LAW JUDGE","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H102269 HERSHEL HICE, Employee CLAIMANT LOGAN COUNTY, Employer RESPONDENT ASSOCIATION OF ARKANSAS COUNTIES WCT, Carrier RESPONDENT OPINION FILED MARCH 1, 2023 Hearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Fort Smith, Sebastian County, Arkans...","fetched_at":"2026-05-19T23:09:02.444Z","links":{"html":"/opinions/alj-H102269-2023-03-01","pdf":"https://labor.arkansas.gov/wp-content/uploads/HICE_HERSHEL_H102269_20230301.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}