{"id":"alj-H104889-2023-06-05","awcc_number":"H104889","decision_date":"2023-06-05","opinion_type":"alj","claimant_name":"Ruth Escobedo","employer_name":"Jake’s Janitorial Services","title":"ESCOBEDO VS. JAKE’S JANITORIAL SERVICES AWCC# H104889 JUNE 5, 2023","outcome":"denied","outcome_keywords":["granted:2","denied:3"],"injury_keywords":["knee","back","sprain","fracture"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/ESCOBEDO_RUTH_H104889_20230605.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"ESCOBEDO_RUTH_H104889_20230605.pdf","text_length":44821,"full_text":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. H104889 \n \nRUTH ESCOBEDO, Employee CLAIMANT \n \nJAKE’S JANITORIAL SERVICES, Uninsured Employer RESPONDENT NO. 1 \n \nUNIVERSITY OF ARKANSAS, Employer RESPONDENT NO. 2 \n \nPUBLIC EMPLOYEE CLAIMS DIVISION, Carrier RESPONDENT NO. 2 \n \nABSOLUTE JANITORIAL, Uninsured Employer RESPONDENT NO. 3 \n \n \n \n OPINION FILED JUNE 5, 2023 \n \nHearing   before   ADMINISTRATIVE   LAW   JUDGE   ERIC   PAUL   WELLS   in   Springdale, \nWashington County, Arkansas. \n \nClaimant represented by EVELYN E. BROOKS, Attorney at Law, Fayetteville, Arkansas. \n \nRespondent No. 1 appearing PRO SE. \n \nRespondents No. 2 represented by ROBERT H. MONTGOMERY, Attorney at Law, Little Rock, \nArkansas. \n \nRespondent  No.  3  represented  by GUY ALTON  WADE,  Attorney  at  Law,  Little  Rock, \nArkansas. \n \n STATEMENT OF THE CASE \n \n On  March  7,  2023,  the  above  captioned  claim  came  on  for  a  hearing  at  Springdale, \nArkansas.   A pre-hearing conference was conducted on April 6, 2022, and a Pre-hearing Order \nwas  filed  on  April  6,  2022.      A  copy  of  the  Pre-hearing  Order  has  been  marked  Commission's \nExhibit No. 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\nEscobedo – H104889 \n \n-2- \n \n By agreement of the parties the issues to litigate are limited to the following: \n 1.   Whether   the   employee/employer   relationship   existed   between   claimant   and \nRespondent No. 1, Respondents No. 2, or Respondent No. 3 on November 12, 2019. \n 2.  Whether  Claimant  sustained  a  compensable  injury  to  her  left  knee  on  November  12, \n2019. \n 3. Whether Claimant is entitled to medical treatment. \n 4.  Whether  Claimant  is  entitled  to  temporary  total  disability  benefits  from  January  10, \n2021, to a date yet to be determined. \n 5. Whether Claimant’s attorney is entitled to an attorney fee. \n 6. Compensation rates. \n 7. Respondents No. 2 and Respondent No. 3 raise the Notice Defense. \n Claimant’s contentions are: \n“Claimant contends she was working for Jake’s Janitorial Services, \nwho  was  working  for  the  University  of  Arkansas  at  Fayetteville, \nwhen she injured her left knee while working. She contends she is \nentitled  to  treatment  for  her  left  knee  and  to  TTD  benefits  from \nJanuary  1,  2021,  to  a  date  yet  to  be  determined.  The  claimant \nreserves all other issues.” \n \n Respondent No. 1 contends the claimant was not its employee. \n \n Respondents No. 2’s contentions are: \n  \n“The claimant contends that she sustained an injury to her left knee \nwhile   working   for   Jake’s   Janitorial   Services.   The   claimant’s \nprehearing  filing  does  not  list  a  date  of  the  alleged  injury.  The \nclaimant  contends  she  is  entitled  to  medical  treatment  and  TTD \nbenefits. \n \nRespondent  No.  2,  the  University  of  Arkansas,  contends  that  the \nclaimant  was  an  employee  of  either  Respondent  No.  1,  Jake’s \n\nEscobedo – H104889 \n \n-3- \nJanitorial   Services,   or   Respondent   No.   3,   Absolute   Janitorial \nServices,  at  the  time  of  the  alleged  injury  and  that  for  statutory \npurposes   Jake’s   Janitorial   Services   and/or   Absolute   Janitorial \nServices  was  the  claimant’s  employer  at  the  time  of  the  alleged \ninjury.  Information  currently  available  indicates  Jake’s  Janitorial \nServices  directed  and  controlled  any  work  done  by  the  claimant, \nthe  claimant  was  hired  by  Jake’s  Janitorial  Services,  the  claimant \nwas paid by Rodney E. Harris and/or Jake’s Janitorial Services for \nany  work  she  performed,  the  claimant  wore  a  shirt  provided  by \nJake’s Janitorial Services while she was working, and the claimant \nnotified  Rodney  E.  Harris  and/or  Jake’s  Janitorial  Services  of  the \nalleged  injury.  The  claimant  was  employed  by  Respondent  No.  1 \nJake’s Janitorial Services and/or Absolute Janitorial Services LLC. \n \nRespondent No. 3,  Absolute Janitorial Services LLC, is located in \nBentonville,  AR.  Absolute  Janitorial  Services  LLC  has  contracted \nwith  the  University  of  Arkansas  for  the  past  few  years  to  perform \ncleaning  services  at  certain  University  properties.  As  part  of  the \ncontract   with   the   University   of   Arkansas,   Absolute   Janitorial \nServices   LLC   is   required   to   maintain   and   provide   proof   of \nadequate    minimum    insurance    coverage,    including    workers’ \ncompensation  coverage.  Pursuant  to  the  contract,  the  contractor \n(Absolute  Janitorial  Services  LLC)  has  the  sole  right  to  direct  the \nwork  performed  and  instruct  persons  hired  or  employed  by  the \ncontractor  for  performance  of  the  services  enumerated  in  the \ncontract.    Absolute    Janitorial    Services    LLC    utilized    Jake’s \nJanitorial  Services  as  a  sub-contractor  to  perform  the  work  in \nwhich the claimant herein alleges she was injured. \n \nBased  on  information  currently  available  Respondent  No.  2  also \ncontends   that   the   claimant   was   not   performing   employment \nservices  at  the  time  of  the  alleged  injury.  The  claimant  has  stated \nshe  was  getting  out  of  her  car  in  the  parking  lot when  she  slipped \nand fell prior to beginning any work. \n \nLastly,  Respondent  No.  2  first  became  aware  of  the  filing  of  this \nclaim for benefits on June 14, 2021. On that date, Respondent No. \n2  received  copies  of  a  prehearing  filing  and  Form  AR-C  the \nclaimant  had  filed  with  the  Arkansas  Workers’  Compensation \nCommission on June 11, 2021. While not waiving the contentions \nset out above, Respondent No. 2 would contend that, if the claim is \nfound  to  be  compensable,  the  notice  provision  of  Ark.  Code  Ann. \n11-9-701(a)(1) apply to the facts of this claim. Respondent No. 2 is \nnot   responsible   for   any   disability,   medical,   or   other   benefits \nrelative to the claimant’s alleged left knee injury, and furthermore \n\nEscobedo – H104889 \n \n-4- \ncannot  be  responsible  for  any  benefits  claimed  by  the  claimant \nprior  to  June  14,  2021,  which  is  the  date  Respondent  No.  2 \nreceived notice that claimant had filed this claim. \n \nThe  claimant  did  not  sustain  a  compensable  left  knee  injury. \nRespondent  No.  1,  Jake’s  Janitorial  Services  and/or  Rodney  E. \nHarris,  and/or  Respondent  No.  3,  Absolute  Janitorial  Services \nLLC, was the claimant’s employer at the time of the alleged injury. \nThe  claimant  obtained  medical  treatment  prior  to  Respondent  No. \n2 receiving any notice that the claim had been filed. \n \nRespondent No. 2 reserves the right to raise additional issues, or to \nmodify  the  contentions  stated  herein,  pending  the  completion  of \ndiscovery.” \n \n Respondent No. 3’s contentions are: \n“Respondent   No.   3   contends   that   the   claimant   was   not   an \nemployee.  Claimant  failed  and/or  refused  to  report  any  injury  to \nthem  and  they  had  no  knowledge  or  notice  of  any  injury  until \nserved   with   the   claimant’s September   28,   2021,   Form   C. \nRespondent   No.   3   contends   the   claimant   did   not   sustain   a \ncompensable  injury  and/or  injury  for  which  they  would  have  any \nresponsibility.    Claimant’s claim    should    be    denied    and/or \nRespondent  No.  3  should  be  dismissed  from  this  claim  with \nprejudice.” \n \n \n The claimant in this matter is a 38-year-old female who alleges to have been engaged in \nthe   employee/employer   relationship   with   Respondent   No.   1,   Jake’s Janitorial   Services, \nRespondent No. 2, the University of Arkansas, and Respondent No. 3, Absolute Janitorial, when \nshe alleges to have sustained a compensable left knee injury on November 12, 2019. Respondent \nNo. 1, Jake’s Janitorial Services, was owned by a man named Rodney Harris and it was operated \nat the time of the claimant’s alleged injury as a sole proprietorship. Respondent No. 3, Absolute \nJanitorial,  is  owned  by  James  Michael  Harms  and  is  currently  and  at  the time  of  the  claimant’s \nalleged injury operating as an LLC. Respondent No. 2, the University of Arkansas is, of course, a \npublic   institution   of   higher   education   which   entered   into   a   contractual   agreement   with \n\nEscobedo – H104889 \n \n-5- \nRespondent  No.  3,  Absolute  Janitorial,  to  provide  cleaning  services  to  several  of  its  facilities. \nRespondent   No.   3,   Absolute   Janitorial,   then   entered   into   a   contractual   agreement   with \nRespondent  No.  1,  Jake’s  Janitorial  Services,  or  more  accurately,  Rodney  Harris,  as  a  sole \nproprietor, who was also known by many individuals as “Jake” to perform the cleaning services \nRespondent  No.  3,  Absolute  Janitorial,  had  contracted  to  provide  Respondent  No.  2,  the \nUniversity of Arkansas. \n Respondent  No.  1,  Jake’s  Janitorial  Services,  owned  by  sole  proprietor  Rodney  Harris, \nalso  known  as  Jake,  will  be  referred  to  as  Respondent  1 JJS  when  discussing  the  respondent \nbusiness. The name Rodney  Harris will be used when he is giving testimony or referred to as a \nperson and not as a business. While Rodney Harris is also known as Jake and testimony refers to \nhim  as  Jake,  for  all  purposes  Jake  and  Rodney  Harris  are  the  same  person  in  this  matter  and \nRodney Harris will be used unless Jake is used via a quote from the hearing transcript from this \npoint forward. Respondent No. 2, the University of Arkansas, will be referred to as Respondent 2 \nU of A, and Respondent No. 3, Absolute Janitorial, will be referred to as Respondent 3 AJ from \nthis point forward.  \n Rodney  Harris  identified  the  claimant  as  a  contract  worker  and  testified  on  cross \nexamination by Respondent 2 U of A’s attorney, that he had “around 26 or 28” contract workers \nworking at Respondent No. 2 U of A’s campus in November of 2019.  \n An important question in untangling the issues before the Commission is if the claimant \nwas an employee of any of the respondents, and if so, which respondent or respondents was the \nclaimant an employed by.  \n As  the  Court  stated  in Silvicraft,  Inc.  v  Lambert,  10  Ark.  App.  28,  661  S.W.  2d\n \n403 \n(1983),  the  determination  of  whether,  at  the  time  of  the  injury,  a  person  is  an  employee  or \n\nEscobedo – H104889 \n \n-6- \nindependent contractor is a factual one for the Commission. A test to help determine whether an \nindividual  is  an  independent  contractor  or  an  employee is  set  out  by  the  Court  of  Appeals  in \nFranklin v. Arkansas Craft, Inc., 5 Ark. App. 264, 635 S.W. 2d 286 (1982). The Court set forth \nnine factors which may be considered in determining whether an injured  person is an employee \nor an independent contractor for Workers’ Compensation coverage: \n 1. The right to control the means and method by which the work is done; \n 2. The right to terminate the employment without liability; \n 3. The method of payment, whether by time, job, piece or other unit of measure; \n 4.  The  furnishing,  or  the  obligation  to  furnish,  the  necessary  tools,  equipment,  and \nmaterials; \n 5. Whether the person employed is engaged in a distinct occupation or business; \n 6. The skill required in a particular occupation; \n 7. Whether the employer is in business; \n 8. Whether the work is an integral part of the regular business of the employer; and \n 9. The length of time for which the person is employed. \n In considering the claimant’s relationship with Respondent 1 JJS, along  with the factors \nabove, it is clear that the claimant was not an independent contractor but instead an employee of \nRespondent 1 JJS. Respondent 1 JJS had the right to control the means and method of work done \nby the claimant. On cross examination by Respondent 3 AJ’s attorney, Rodney Harris testified as \nfollows regarding his relationship with the claimant. \nQ Okay. Now, you hired the people that was going to perform \nthe work; correct? \n \nA Yes. \n \n\nEscobedo – H104889 \n \n-7- \nQ And  the  people  that  were  actually  going  to  be  at  the  Pike \nhouse   or   Pomfret   or   any   of   those   places   that   there   was   an \nagreement to clean; is that right? \n \nA Yes. \n \nQ And you told them to show up; correct? \n \nA Yes. \n \nQ You told them how they were going to get paid? \n \nA Yes. \n \nQ You  told  them  how  to  do  the  job  if  they  needed  to  get \ninstructions? \n \nA Well, by the time when we started everything, pretty much \neverybody knew what to do. \n \nQ Okay.  And  Ms.  Escobedo  joined  Jake’s  sometime  in  late \nJuly or early August of 2019; is that correct? \n \nA Uh-huh. \n \nQ Is that “yes”? \n \nA Yes. \n \nQ And  I  am  not  picking  on  you.  It’s “uh-huh”  and “huh-uh” \nwon’t come across real well. \n \nA I got you. \n \nQ Now,  this  was  in  response  to  that  Facebook  ad  and  I  think \nyou told me that Karina had put out; is that right? \n \nA Yes. \n \nQ And Karina at the time was a supervisor working with you; \nis that right? \n \nA Correct. \n \n\nEscobedo – H104889 \n \n-8- \nQ Okay.  Now,  she,  being  Ms.  Escobedo,  would  have  been \ninstructed where she was going to be working; is that right? \n \nA Correct. \n \nQ And either you or Karina would have instructed her in that \ncapacity? \n \nA Correct. \n \n There is no evidence on the record that shows Respondent 1 JJS would have any liability \nfor  terminating  the  claimant.  Instead,  liability  only  existed  on  a  per  hour  work  basis  as  the \nclaimant  was  paid  by  the  hour.  The  claimant  furnished  no  tools,  supplies,  or  products  for \ncleaning.  It  appears  those  tools,  supplies,  or  products  were  provided  to  her  at  the  direction  of \nRespondent  1  JJS  but  were  purchased  by  Respondent  3  AJ  and  perhaps  to  some  extent, \nRespondent  2  U  of  A.  The  claimant  was  essentially  a  general  laborer  who  performed  multiple \ntasks in the process of cleaning different facilities. I find no particular skill or training as a need \nor  requirement  for  her  work  other  than  basic  instruction,  which  was  provided  by  Respondent  1 \nJJS.  Respondent  1  JJS  was  solely  in  the  business  of  cleaning  facilities  at  the  campus  of \nRespondent  2  U  of  A  under  a  contractual  obligation  with  Respondent  3 AJ.  The  claimant  was \nsimply hired by Respondent 1 JJS to work five days a week cleaning facilities for a set number \nof  hours  on  a  per  hour  basis.  Respondent  1  JJS  was  the  claimant’s  employer  during  her  time \nworking for Respondent 1 JJS and not an independent contractor even though Respondent 1 JJS \ncalled  her,  and  others,  contract  workers  and  provided  them  1099  forms since  Respondent  1 JJS \ndid not pay employment taxes on its employees. \n The claimant also asked the Commission to consider the employee/employer relationship \nbetween  herself  and  Respondent  2  U  of  A  on  November  19,  2019.  I  find  no  basis  for  that \nrelationship  to  have  existed  at  that  time.  While  it  was  Respondent  2 U of  A’s  facilities  being \n\nEscobedo – H104889 \n \n-9- \ncleaned by the claimant, it was done so through a contractual relationship between Respondent 2 \nU of A and Respondent 3 AJ, who then contracted with Respondent 1 JJS. Respondent 1 JJS did \nhave  an  employee/employer  relationship  with  the  claimant  in  November  of  2019  when  the \nclaimant  alleges  injury.  Here,  Respondent  2 U of  A  is  much  like  an  individual  who  hires,  via \ncontract, a prime contractor to build a house who in turn contracts with a subcontractor to put a \nroof on said house. \n The  claimant  also  asked  the  Commission  to  consider  whether  the  employee/employer \nrelationship   existed   between   herself   and   Respondent   3   AJ.   In   a   traditional   workers’ \ncompensation   consideration,   I   find   Respondent   3   AJ   was   not   in   an   employee/employer \nrelationship  with  the  claimant  in  November  of  2019.  However,  in  giving consideration  to  ACA \n§11-9-402(a)  and  (b)(1),  I  do  find  that  Respondent  3  AJ  would  be  placed  in  the  position  of  the \nemployee/employer relationship with the claimant if liability existed for her alleged compensable \ninjury. Arkansas Code Annotated §11-9-402(a) and (b)(1) states: \n(a) Where a subcontractor fails to secure compensation required by \nthis  chapter,  the  prime  contractor  shall  be  liable  for  compensation \nto   the   employees   of   the   subcontractor   unless   there   is   an \nintermediate    subcontractor    who    has    workers’    compensation \ncoverage. \n \n(b)(1)  Any  contractor  or  the  contractor’s  insurance  carrier  who \nshall  become  liable  for  the  payment  of  compensation  on  account \non  injury  to  or  death  of  an  employee  of  his  or  her  subcontractor \nmay    recover    from    the    subcontractor    the    amount    of    the \ncompensation paid or for which liability is incurred. \n \n The  Arkansas  Supreme  Court in Nucor  Holding  Corp.  v  Rinkines,  326  Ark.  App.  223, \n931 S.W. 2d 439 (1996) discussed prime contractors and subcontractors’ relationship as it relates \nto  the  above  statute  stating, “The  person  sought  to  be  charged  as  a  prime  contractor  must  have \nbeen contractually obligated to a third party for the work being done at the time of the injury.” \n\nEscobedo – H104889 \n \n-10- \n The Arkansas Court of Appeals in Bailey v. Simmons, 6 Ark. App. 196, 639 S.W. 2d 528 \n(1982)   defined   subcontractor   within   the   meaning   of   ACA   §11-9-402   as   follows, “A \nsubcontractor is one who enters into a contract with a person for the performance of work which \nsuch person has already contracted to perform. In other words, subcontracting is merely farming \nout to others all the parts of work contracted to be performed by the original contractor.” \n In the present case Respondent 3 AJ is a prime contractor in respect to ACA §11-9-402. \nRespondent 3 AJ  was  contractually obligated to  Respondent 2 U of A, a  third party, to provide \ncleaning  services  to  Respondent  2  U  of  A  at  their  facilities  in  November  of  2019.  This  is \nevidenced  by  the  testimony  of  Mr.  Harms,  the  owner  of  Respondent  3  AJ,  and  documentary \nevidence  found  at  Respondent  2’s  Exhibit  2,  pages  1-30  in  a  document  titled “Request  for \nProposal  (RFP)  RFP  No.  681360  University  Housing  Cleaning  Support,”  which  was  signed  by \nMr.   Harms.   Another   document   is   found   at   Respondent   2’s   Exhibit   3,   pages   1-2   titled \n“Maintenance  Service  Agreement”  dated  February  19,  2019,  and  signed  by  Mr.  Harms  and  a \nrepresentative of Respondent 2 U of A’s Board of Trustees. That contractual agreement is for a \nperiod  of  12  months  for  cleaning  obligations  in  RFP  No.  681360.  Respondent  3  AJ  is  a  prime \ncontractor under ACA §11-9-402. \n Respondent  1  JJS  is  also  a  subcontractor  with  respect  to  ACA  §11-9-402  in  that \nRespondent  1  JJS  entered  into  a  contract  with  Respondent  3  AJ  to  perform  the  work  that \nRespondent  3  AJ  had  contracted  with  Respondent  2  U  of  A  to  perform.  This  is  shown  without \ndispute  in  testimony  both  by  Mr.  Harris  and  Mr.  Harms.  The  contractual  agreement  itself  is \nfound in evidence at Respondent 3’s Exhibit 2, pages 3-9, and is signed by Mr. Harris  and Mr. \nHarms.  \n\nEscobedo – H104889 \n \n-11- \n Given  the  statutory  language  of  ACA  §11-9-402,  Respondent  3  AJ  would  be  liable  for \ncompensation owed to the claimant if she is able to prove her injuries compensable and benefits \nare  awarded.  I  also  note  that  it  is  undisputed  in  evidence  and  testimony  that  Respondent  1  JJS \nand  Respondent  3  AJ  did  not  have  any  workers’  compensation  policies  in  effect  during \nNovember of 2019. \n I  will  now consider  the  claimant’s  allegation  that  she  sustained  a  compensable  injury  to \nher  left  knee  on  November  12,  2019.  The  claimant  was  employed  by  Respondent  1  JJS  to \nperform housekeeping duties. The claimant would, along with a partner named Maria, clean two \ndifferent  facilities  each  day.  In  November  of  2019  the  claimant  began  her  day  cleaning  at  an \napartment complex on Duncan Street at 7:00 a.m. The claimant testified this would take her and \nher partner an hour to an hour and ten minutes to complete. The claimant gave testimony about \nher work duties after cleaning the Duncan Street Apartments on direct examination as follows. \nQ And  after  you  would  clean  the  Duncan  Street  Apartments, \nthen what would you do? \n \nA I went to another house at the University, the PKA. \n \nQ Is  that  what  you  would  do  every  day?  Was  that  your \nroutine? \n \nA Yes. \n \nQ And how long would you be cleaning PKA? \n \nA I cleaned there from the beginning of the school year until I \nstopped working. \n \nQ Okay.  How  long  would  it  take  you  each  day  to  clean  that \nbuilding? \n \nA We would be there from around 8:00 a.m. until 3:30 p.m. \n \n\nEscobedo – H104889 \n \n-12- \nQ And  what  was  your  normal  work  schedule  each  day,  the \nhours that you would work? \n \nA From 7:00 a.m. to 3:30 p.m. \n \nQ And were you instructed by a superior about where to start \ncleaning each day? \n \nA Yes. \n \nQ And who was that? \n \nA Jake. \n \nQ And if you wanted to clean the PKA house in the morning \nand  the  Duncan  Street  Apartments  in  the  afternoon,  did  you  have \nthat flexibility? Could you make that decision? \n \nA No. \n \nQ And   how   would   you   get   from   the   Duncan   Street \nApartments to the PKA house? \n \nA In my car. \n \nQ And  did  you  drive  alone  or  did  you  transport  your  co-\nworker? \n \nA I will transport my co-worker. \n \nQ And how many days a week did you work? \n \nA Monday through Friday. \n \nQ Did you ever work on the weekends? \n \nA Yes. It was not the norm, but there were some days. \n \nQ And do you know what would cause you to be called in on \na weekend? \n \nA That some other building needed cleaning, like the Pomfret. \n \nQ And how much did you make per hour? \n \n\nEscobedo – H104889 \n \n-13- \nA Usually it was 10. \n \n The claimant was also questioned on direct examination about the incident she alleges to \nhave  caused  a  compensable  left  knee  injury  on  November  12,  2019,  and  her  reporting  of  that \ninjury as follows. \nQ Now, what happened on November 12\nth\n of 2019? \n \nA I went to clean the office first and then I went to PKA and \nafter I parked the car and I was getting out of the car, that is when I \nslipped and fell. \n \nQ And what did you land on when you fell? \n \nA I landed on my knee. \n \nQ Which knee? \n \nA The left one. \n \nQ And  did  you  have  someone  in  the  car  with  you  at  that \npoint? \n \nA Yes, Maria. \n \nQ And did she get out of the car to see what was wrong with \nyou? \n \nA Yes.  It was not immediately because she was seated in the \nback.  The  back  door  had  the  child  lock  on  it,  so  I  was  going  to \nopen  up  her  door.  When  she  realized  that  I  wasn’t  opening  her \ndoor, she went through the front and opened the door and saw that \nI had fell. \n \nQ Did you report the accident to Jake? \n \nA Yes. \n \nQ And how did you do that? \n \nA I sent him a text. \n \nQ And did you send a picture of your knee? \n\nEscobedo – H104889 \n \n-14- \n \nA Yes. \n \nA copy of the text message, response, and photographs sent to and from Rodney Harris are found \nat Claimant’s Exhibit 4, pages 1-15. \n Respondent  1  JJS  did  not  send  the  claimant  for  any  form  of  medical  treatment.  Instead, \nthe  claimant  went  that  same  day  to  Community  Clinic  at  her  own  expense.  The  claimant  was \nseen  by Maurice  Jones,  PA.  At  that  time,  the  claimant  reported  left  knee  pain,  swelling,  and \nbruising. Her left knee was x-rayed which showed inflammation in the left knee and the claimant \nwas to return on an as needed basis.  \n On  March  3,  2020,  the  claimant  was  seen  at  Community  Clinic  in  Springdale  by  Dr. \nClaire Servy. The claimant continued to complain of left knee pain. Dr. Servy ordered an MRI of \nthe  claimant’s  left  knee  at  that  time.  The  claimant  testified  on  direct  examination  that  she  was \nunable  to  afford  the  MRI  until  her  husband  had  saved  up  enough  money  to  pay  for  it.  On \nSeptember 21, 2020, the claimant was able to receive an MRI of the left knee at MANA Medical \nAssociates.  The  diagnostic  report  from  the  MRI  was  authored  by  Dr.  Benjamin  Lowery. \nFollowing is a portion of that report. \nIMPRESSION: \n1.  Oblique  tear  involving  the  posterior  horn/body  the  medial \nmeniscus extending to the tibial articular surface. \n2.  Mild  thickening  involving  the  proximal  fibers  of  the  medial \ncollateral ligament could represent an old sprain. \n3. Trace joint effusion. \n \n On  November  9,  2020,  the  claimant  was  seen  at  Advanced  Orthopedic  Specialists  for \ntreatment  of  her  left  knee  medial  meniscus  tear.  On  November  19,  2020,  the  claimant  returned \nand received a steroid injection in her left knee. The claimant continued a course of conservative \ntreatment into 2021 which included physical therapy.  \n\nEscobedo – H104889 \n \n-15- \n On  May  18,  2021,  the  claimant  was  seen  by  Dr.  Chris  Arnold  at  Advanced  Orthopedic \nSpecialists  for  her  left  knee  difficulties.  At  that  time,  Dr.  Arnold  recommended  arthroscopic \nsurgical intervention of the claimant’s left knee.  \n On June 18, 2021, the claimant again saw Dr. Servy. At that time, the claimant requested \na referral for left knee surgery to Mercy due to  her lack of insurance. The  claimant was seen at \nMercy Clinic Orthopedics and Sports on July 28, 2021, by Corey Carver, PA. The claimant was \ngiven a left knee injection and was told to return with her MRI in one month. The claimant saw \nPA  Carver  again  on  August  25,  2021,  reporting  improvement  since  her  left  knee  injection.  The \nclaimant’s MRI was reviewed, and she was assessed with a left knee medial meniscus tear. \n The claimant was offered additional conservative care including continuing to brace her \nleft  knee,  weight  loss  and  injections  or  to  follow  up  with  Dr.  Kaler  for  surgical  options.  The \nclaimant has continued with conservative care to the best she could afford it. \n On  October  21,  2022,  Dr.  Claire  Servy,  whose  deposition  is  part  of  the  record  in  this \nmatter,  authored  a  letter  regarding  the  claimant’s  left  knee “To  Whom  It  May  Concern.”  The \nbody of the letter follows. \nI am writing on behalf of Ruth Escobedo (DOB, 08/02/1984), who \nis  an  established  patient  at  Community  Clinic.  Ruth  has  been \nknown  to  me  and  under  my  care  since  December  2016.  Mrs. \nEscobedo requested that I write a letter in support of her court case \ndiscussing a meniscal tear in the left knee and a cartilage tear in the \nright knee. In 2019 Ruth sustained a fall on ice while at work. She \ninitially  saw  Maurice  Jones,  P.A.,  a  provider  at  the  community \nclinic, and was prescribed an anti-inflammatory  medication which \ndid  not  help.  Ruth  was  seen  by  me  in  March  2020  for  low  back \npain  and  bilateral  leg  weakness  and  was  referred  to  Jennifer \nTinker,  a  physical  therapist  here  at  the  community  clinic  who \nreported  back  stiffness  and  bilateral  low  back  pain  with  left \nsciatica.    In    2021    she    was    seen    by    an    orthopedist    who \nrecommended surgery or physical therapy for bilateral knee issues. \nAt  the  time  Ruth  opted  for  physical  therapy  due  to  the  cost  of \n\nEscobedo – H104889 \n \n-16- \nsurgery  as  she  is  uninsured.  Mrs.  Escobedo  was  seen  by  physical \ntherapist   recurrently   for   treatment   for   this   without   sufficient \nimprovement.   Ruth   has   also   had   unsuccessful   treatment   with \nmedications and joint injections. \nMs. Escobedo has been unable to work since the  accident and has \nhad progressive worsening of pain the b/l knees and now in the low \nback. Pt is unable to stand for extended periods and is unable to lift \nheavy objects since the accident. \nMRI  performed  in  December  2021  showed  degenerative  disc \ndisease  of  L3-L4  and  L5-S1,  and “curvillnear  low  signal  intensity \nidentified  within  the  S1  vertebra  best  appreciated  on  sagittal \nimaging may represent an old nondisplaced fracture in this patient \nwith a history of fall 2 years ago.” \nThank  you  for  participating  in  this  patient’s  care.  Please  do  not \nhesitate to contact us with any questions. \n \n It is the claimant’s burden to prove that she sustained a compensable left knee injury on \nNovember 12, 2019. In order to do so, the claimant must show the presence of objective medical \nevidence of  a left knee injury. Here, the  claimant is able to do so in the form of her September \n21, 2020, left knee MRI  which showed a medial meniscus tear. That finding was confirmed by \nDr. Arnold in his May 18, 2021, visit note with the claimant. \n The claimant was enroute from the Duncan Street Apartments where she and her cleaning \npartner had begun their workday cleaning when she fell. The claimant drove her car and gave her \ncleaning  partner  a  ride  to  the  PKA  facility  on  Respondent  2  U  of  A’s  campus.  The  claimant \narrived at the PKA facility, exited her car and fell before entering the PKA facility to clean. Even \nthough the claimant was not cleaning at the time of her fall, she was moving from one job duty to \nthe  next  and  transporting  another  of  Respondent  1  JJS’s  employees  for  the  same  purpose.  The \nclaimant was performing employment services when she fell and  directly furthering the interest \nof her employer. \n A causal  connection must also be shown by the  claimant between her objective medical \nfindings and the incident she alleges to have caused her compensable left knee injury. Here, the \n\nEscobedo – H104889 \n \n-17- \nclaimant immediately reported her fall via text and provided pictures to Respondent 1 JJS within \nminutes after her fall. The  claimant went to the doctor’s office that same day, reporting her left \nknee injury at her own expense. The  claimant continued to seek treatment since the time of her \ninjury even without the benefit of insurance. I find the claimant’s testimony to be truthful as her \ntestimony  is  in  line  with  the  medical  evidence  presented  and  frankly  the  testimony  of  Rodney \nHarris.  The  claimant  is  able  to  prove  that  she  sustained  a  compensable  left  knee  injury  on \nNovember 12, 2019, while performing employment services for Respondent 1 JJS. \n After  a  review  of  the  medical  treatment  regarding  the  claimant’s  left  knee  placed  into \nevidence,  I  find  all  that  treatment  reasonable  and  necessary  treatment  for  her  compensable left \nknee  injury.  I  also  find  the  surgical  intervention  and  treatment  proposed  by  Dr.  Arnold  to  be \nreasonable and necessary medical treatment for the claimant’s compensable left knee injury. \n The claimant has asked the Commission to determine if she is entitled to temporary total \ndisability benefits from January 10, 2021, to a date yet to be determined. On direct examination, \nthe  claimant  gave  testimony  about  her  time  off  work,  the  difficulties  she  was  having  with  her \nwork, and the end of her employment as follows. \nQ [BY  MS.  BROOKS]:  Were  you  off  for  a  period  of  time \nbefore you tried to return to work? \n \nA Yes, two days. \n \nQ And after those two days, did you return to work? \n \nA That’s correct. \n \nQ And how was your knee doing when you returned? \n \nA It was messed up. It was bad. \n \nQ Okay.  Did  you  have  trouble  doing  your  work  because  of \nthe knee? \n\nEscobedo – H104889 \n \n-18- \n \nA That is correct. \n \nQ Did you have to change your work in any way? \n \nA Yes. \n \nQ And in what way? \n \nA Like for example, when I was cleaning the stairs, instead of \ngoing upwards, I had to go downwards. \n \nQ And at some point did you stop working? \n \nA What  do  you  mean?  Like  if  I  had  to  stop  working  during \nthe day so I could take a break or what? \n \nQ Well, answer that, did you take breaks? \n \nA I tried to do as much work as  I could possibly do and then \nafter  I was done  and  I felt like I couldn’t go on any longer, then I \nwould sit down and take a break. \n \nQ Okay. And at some point did your work end? \n \nA Yes. \n \nQ And how did that happen? \n \nA Because I had a problem with my co-worker and I had told \nhim and they didn’t do anything. \n \nQ You told who? \n \nA Jake. \n \nQ Go ahead. How did it affect your work? \n \nA Supposedly  he  was  going  to  be  taking  Maria  away,  but  in \nthe end it was me who was sent to a different building. \n \nQ And what building was that? \n \nA The Pomfret. I really don’t remember. I am really not sure. \n \n\nEscobedo – H104889 \n \n-19- \nQ And did you go work at that building? \n \nA I did go that day. \n \nQ And were you able to do the work? \n \nA I  tried  to  hold  on  for  as  long  as  I  could,  but  it  was  very \nheavy work. \n \nQ And what made it heavy work? \n \nA You had to walk a lot and there were stairs. \n \nQ Okay. And how did that affect your knee, your left knee? \n \nA It was very, very swollen and the pain was insufferable. \n \n On  cross  examination  by  Respondent  3 AJ’s  attorney,  the  claimant  was  asked  about \ncontinuing  to  work  after  her  November  12,  2019,  injury,  and  the  end  of  her  employment  as \nfollows. \nQ Now, you told us you missed two days from work after this \nevent. \n \nA Yes, the ones that the doctor said. \n \nQ And   then   you   went   back   to   cleaning   like   you   had \npreviously? \n \nA Yes. \n \nQ And  you  did  that  up  until  apparently  you  had  a  problem \nwith the co-worker; is that correct? \n \nA Yes. \n \nQ Okay.  Now,  the  way  that  problem  was  resolved  was  to \nmove you to a different location to work; correct? \n \nA Well, I left so I could speak to Jake. \n \nQ And  eventually  you  were  moved  to  another  location  to \nclean? \n\nEscobedo – H104889 \n \n-20- \n \nA I  was  asked  if  I –  I  was  asked –  it  was  Karina.  I  spoke  to \nKarina about it  because  I said  I needed – that it was a lot to clean \nin  that  building  and  that  I  had  already  spoke  to  Jake  because  my \nknee was hurting. He knew that I had fallen. \n \nQ That  is  not  what  I  asked.  You  had  a  dispute  with  a  co-\nworker; correct? \n \nA Yes. \n \nQ Okay.  Now,  up  until  the  time  of  that  dispute,  you  were \ncontinuing to work full time; correct? \n \nA Yes. \n \nQ And  in  resolution  of  that  dispute,  you  were  going  to  be \nmoved to another location to continue cleaning; correct? \n \nA Yes. \n \nQ Okay.  You  didn’t  like  that  other  location  and  you  quit; \ncorrect? \n \nA It  is  not  that  I  did  not  like  it.  It  was  because  of  my  knee. \nThere were too many stairs. It was too big. It was too much for me. \n \nQ You were asked in your deposition on Page 40 beginning at \nLine  9,  I  asked  you, “Did  you  quit  your  job  because  you  did  not \nwant to move to the other building?” And you answered, “Yes.” Is \nthat correct? \n \nA It  is  not  that  I  don’t  like  it.  I  could  do  the  job  if  my  knee \nwas good. \n \nQ Because  you  had  been  working  full  time  at  the  Pike  house \npreviously? \n \nA Yeah, I did what I could. \n \nQ In  fact,  you  asked  to  go  back  to  the  Pike  house  and \ncontinue to work, but you were not offered that position? \n \nA No. Yes. No. What happened was that I was with Jake and \nKarina  on  Jake’s  car  and  I  told  him  that  I  had  fallen  and  that  my \n\nEscobedo – H104889 \n \n-21- \nknee was hurting and he started yelling to Karina saying that he did \nnot know, that I had not told him, that no one had told him. \n \nQ Well,  we  are  beyond  that  because  you  continued  to  work \nfor a significant period of time until this dispute with a co-worker. \n \nA But I couldn’t take the pain anymore. I was just waiting for \nmy  appointment  with my  doctor.  Even  if  I  had  not  had  a  problem \nwith  her  or  with  anyone,  I  would  not  have  been  able  to  keep  on \nworking because the pain in my knee was just too much. \n \nQ So you did or didn’t quit your job because you were moved \nto another building as your testimony previously says? \n \nA I  did,  but  it  was  because  I  would  not  have  been  able  to  do \nmy job because of the pain in my knee. \n \nQ So  when  you  told  us  earlier  in  the  questioning  by  your \nattorney  that  you  asked  to  go  back  to  the  Pike  house  to  work,  is \nthat right or wrong? \n \nA That is true. \n \n The  claimant  was  seen  by  Dr.  Servy,  who  is  a  family  doctor,  on  several  occasions \nregarding her left knee. Medical records introduced into evidence do not show any work or other \nrestrictions being placed on the claimant by Dr. Servy. That fact is confirmed by her deposition \ntestimony as follows. \nQ Okay.  Doctor,  just  so  that  I’m  clear,  throughout  the  time \nthat  you’ve  treated  her  since  2016,  you  have  not  ever  limited  or \nrestricted her activities; correct? \n \nA Correct. \n \nQ You have not even taken her off work or given her a release \nfrom work? \n \nA Correct. \n \nQ You  also  don’t  have  any  independent  knowledge  as  to \nwhether  she  continued  to  work  after  this  event  or  for  whatever \nreason she may have left work? \n\nEscobedo – H104889 \n \n-22- \n \nA Correct. \n \nQ If a patient comes in and is evaluated by you, a part of your \njob is to write down whatever they complain of; correct? \n \nA Yes. \n \nQ Whatever symptoms they may make or pain complaints? \n \nA Yes. \n \nQ And  you  use  those,  then,  to  investigate  that  particular \nproblem or what may be the cause of that complaint? \n \nA Right. \n \nQ And you did that on each one of your visits? \n \nA Yes. \n \n On cross examination by the claimant’s attorney, Dr. Servy was asked to speculate about \nif  she  would  have  placed  restrictions  on  the  claimant  had  she  known  the  claimant  had  a  torn \nmedial  meniscus  and  she  answered  in  the  affirmative.  However,  at  least  by  the  claimant’s  June \n18,  2021,  visit  with  Dr.  Servy,  she  knew  of  the  claimant’s  torn  medial  meniscus  because  she \ngave  the  claimant  a  referral  to  Mercy  for  left  knee  surgery  at  that  time.  Then,  nor  at  any  point \nafter,  did  Dr.  Servy  place  restrictions  on  the  claimant.  Dr.  Chris  Arnold,  who  is  an  orthopedic \nsurgeon, recommended surgery  for the  claimant but did not restrict her from work  or  activities. \nThe  claimant  was  also  seen  by Dr.  Ronald  Kaler  at  Mercy  Clinic  Orthopedics  and  Sports  in \nRogers  at  the  referral  of  Dr.  Servy  and  he  also,  did  not  place  restrictions  upon  the  claimant.  In \nfact, no restrictions have ever been placed on the claimant by a medical provider before or after \nher employment with Respondent 1 JJS ended.  \n\nEscobedo – H104889 \n \n-23- \n When considering the claimant’s testimony about the end of her  employment I find that \nthe  claimant  left  her  employment  because  she  was  unhappy  with  being  moved  to  a  different \nbuilding, not due to reasons related to her compensable left knee injury. The claimant has not, as \nof  the  time  of  the  hearing  in  this  matter  or  before,  been  restricted  in  any  capacity  by  a  medical \nprovider and she has been seen by several medical providers in that time period. The claimant’s \nlack of restrictions, along with the claimant’s ability to work until she became unhappy, and her \nwillingness  to  continue  to  work  if  she  got  her  way,  demonstrate  the  claimant’s  ability  to  work, \nwhich greatly weakens her testimony that she could not do so. The claimant is not able to prove \nthat she is entitled to temporary total disability benefits from January 10, 2021, to a date yet to be \ndetermined.  \n The issues of attorney’s fee and compensation rates are moot as the claimant has not been \nawarded any indemnity benefits in this matter. \n Respondent 2 U of A and Respondent 3 AJ have raised the Notice Defense in this matter. \nBoth are moot for different reasons. \n Respondent 2 U of A’s Notice Defense is moot in that they have no liability in this matter \nas  they  are  not  an  employer,  prime  contractor,  or  subcontractor.  Instead,  they  are  a  third  party \ninvolved without liability. \n Respondent  3  AJ’s  Notice  Defense  is  moot  in  that  Respondent  3  AJ  is  not  a  traditional \nemployer under the Workers’ Compensation Act. While Respondent 3 AJ does have liability in \nthis  matter,  that  liability  is  found in  ACA  §11-9-402  where  Respondent  3  AJ  finds  itself  in  the \nshoes  of  Respondent  1  JJS,  the  uninsured  subcontractor  who  most  certainly  did  have  notice \nalmost immediately after the claimant’s compensable left knee injury occurred on November 12, \n2019. \n\nEscobedo – H104889 \n \n-24- \n From a review of the record as a whole, to include medical reports, documents, and other \nmatters properly before the Commission, and having had an opportunity to hear the testimony of \nthe  witnesses  and  to  observe  their  demeanor,  the  following  findings  of  fact  and  conclusions  of \nlaw are made in accordance with A.C.A. §11-9-704: \n FINDINGS OF FACT & CONCLUSIONS OF LAW \n 1.  The  stipulations  agreed  to  by  the  parties  at  the  pre-hearing  conference  conducted  on \nApril 6, 2022, and contained in a Pre-hearing Order filed  April 6, 2022, are hereby  accepted as \nfact. \n 2. The claimant proved by a preponderance of the evidence that Respondent No. 1, Jake’s \nJanitorial  Services,  and  the  claimant  had  an  employee/employer  relationship  on  November  12, \n2019. \n 3. The claimant failed to prove by a preponderance  of the evidence that Respondent No. \n2, the University of Arkansas, and the claimant had an employee/employer relationship. \n 4. The claimant failed to prove by a preponderance of the evidence that Respondent No. \n3, Absolute Janitorial, and the claimant had an employee/employment relationship. \n 5.  The  claimant  proved  by  a  preponderance  of  the  evidence  that  Respondent  No.  3, \nAbsolute  Janitorial,  has  liability  for  any  and  all  compensation  awarded  to  the  claimant  through \nher  employee/employer  relationship  with  Respondent  No.  1,  Jake’s  Janitorial  Services,  for  her \nNovember 12, 2019, compensable left knee injury under ACA §11-9-402. \n 6.  The  claimant  proved  by a preponderance  of  the  evidence  that  she  sustained  a \ncompensable  injury  to  her  left  knee  on  November  12,  2019,  while  an  employee  of  Respondent \nNo. 1, Jake’s Janitorial Services. \n\nEscobedo – H104889 \n \n-25- \n 7.  The  claimant  proved  by  a  preponderance  of  the  evidence  that  medical  treatment \nadmitted  into  evidence  by  the  parties  is  reasonable  and  necessary medical  treatment  for  the \nclaimant’s  compensable  left  knee  injury.  The  claimant  also  proved  by  a  preponderance  of  the \nevidence   that   the   medical   treatment   recommended   by   Dr.   Arnold,   including   surgical \nintervention, is reasonable and necessary treatment.  \n 8. The claimant failed to prove by a preponderance of the evidence that she is entitled to \ntemporary total disability benefits from January 10, 2021, to a date yet to be determined.  \n 9. The issues of attorney’s fees and compensation rates are moot. \n 10.  The  defense  of  Notice  raised  by  Respondent  No.  2,  the  University  of  Arkansas,  and \nRespondent No. 3, Absolute Janitorial, are moot. \n ORDER \nRespondent No. 1, Jake’s Janitorial Services, shall pay for the  reasonable and necessary \ntreatment  of  the  claimant’s  compensable  left  knee  injury,  including  reimbursement  to  the \nclaimant for all reasonable and necessary medical expenses incurred by the claimant. Respondent \nNo. 3, Absolute Janitorial, is liable to the claimant for compensation under ACA §11-9-402. \nIf  they  have  not  already  done  so,  the  respondents  are  directed  to  pay  the  court  reporter, \nVeronica Lane, fees and expenses within thirty (30) days of receipt of the invoice. \n IT IS SO ORDERED. \n \n \n \n                                ____________________________                                       \n       HONORABLE ERIC PAUL WELLS \n       ADMINISTRATIVE LAW JUDGE","preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H104889 RUTH ESCOBEDO, Employee CLAIMANT JAKE’S JANITORIAL SERVICES, Uninsured Employer RESPONDENT NO. 1 UNIVERSITY OF ARKANSAS, Employer RESPONDENT NO. 2 PUBLIC EMPLOYEE CLAIMS DIVISION, Carrier RESPONDENT NO. 2 ABSOLUTE JANITORIAL, Uninsured Employer RESPON...","fetched_at":"2026-05-19T23:05:56.361Z","links":{"html":"/opinions/alj-H104889-2023-06-05","pdf":"https://labor.arkansas.gov/wp-content/uploads/ESCOBEDO_RUTH_H104889_20230605.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}