{"id":"alj-H107908-2024-01-02","awcc_number":"H107908","decision_date":"2024-01-02","opinion_type":"alj","claimant_name":"Jessie Ellis","employer_name":"City Of Conway","title":"ELLIS VS. CITY OF CONWAY AWCC# H107908 JANUARY 2, 2024","outcome":"denied","outcome_keywords":["granted:1","denied:2"],"injury_keywords":["knee","back","concussion","fracture"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/ELLIS_JESSIE_H107908_20240102.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"ELLIS_JESSIE_H107908_20240102.pdf","text_length":57304,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H107908 \n \nJESSIE D. ELLIS, EMPLOYEE            CLAIMANT \n \nv. \n \nCITY OF CONWAY, EMPLOYER             RESPONDENT \n \nARKANSAS MUNICPAL LEAGUE, \nWORKERS’ COMPENSATION TRUST             RESPONDENT \n \nOPINION FILED JANUARY 2, 2024 \n \nHearing  before  Administrative  Law  Judge,  James  D.  Kennedy,  on  the 26\nTH\n  day  of \nSeptember 2023, in Little Rock, Pulaski County, Arkansas. \n \nClaimant  is  represented  by  Mr.  Eddie  H.  Walker,  Jr.,  Attorney-at-Law  of  Fort  Smith, \nArkansas. \n \nRespondents  are  represented by  Mr.  Jarrod S.  Parrish,  Attorney-at-Law  of  Little  Rock, \nArkansas. \n \nSTATEMENT OF THE CASE \n \n A hearing was conducted on the 26\nth\n day of September, 2023.  At the time of the \nhearing the issues were clarified to be as follows: (1)  Compensability of the claimant’s \nclaimed  closed  head  injury;  (2)    Medical  in  regard  to  the  closed  head  injury;  and  (3) \nattorney’s  fees.    All  other  issues  were  reserved,  specifically  the  issue  of  TTD.  The \nrespondents contended a work-related injury was not the major cause of any permanent \ninjury,  that  the  claimant  was  at  maximum  medical  improvement  and  that  additional \nmedical  treatment  was  not  reasonable  and  necessary.    The  parties  stipulated  that  the \nArkansas  Workers’  Compensation  Commission  had  jurisdiction  of  the  claim  and  an \nemployer-employee relationship existed on  or about June 17, 2020, when the claimant \nsustained a compensable work-related injury abrasion to his head above his eye, his left \nknuckle, and  his  knee.    At the  time of  the  injury,  the  claimant  was earning  an  average \n\nELLIS – H107908 \n \n2 \n \nwage of $809.95, sufficient for a TTD/PPD rate of $534.00 / $401.00, respectively.  The \nclaimant reached maximum medical improvement on September 14, 2021, based upon \nthe opinion of one physician.  A copy of the Prehearing Order was marked “Commission’s \nExhibit 1” and made part of the record without objection.          \n The  claimant’s  and  respondents’  contentions  were  all  set  out  in  their  responses \nand an amended response to the prehearing questionnaire and made a part of the record \nwithout objection.  Two (2) witnesses testified at the time of the hearing.  \n An issue developed involving the transcript and the representatives of the parties \nwere  contacted  in  an  attempt  to  resolve  the  problems.    A  phone  conference with  the \nparty’s representatives was held on the afternoon of December 20, 2023, making them \naware of the issues.  The parties’ respective representatives worked diligently to resolve \nthe  problems,  while  diligently  representing  their  respective  client  interests  and  the \nadministration of justice, and a copy of the correspondence as well as a corrected index \nof the transcript that was agreed upon by the parties and consequently adopted by the \nadministrative law judge is hereby blue backed and attached to this opinion.   \nFrom  a  review  of  the  record  as  a  whole,  to  include  medical  reports  and  other \nmatters properly before the Commission; and having had an opportunity to observe the \ntestimony and demeanor of the witnesses, the following findings of fact and conclusions \nof law are made in accordance with Arkansas Code Annotated § 11-9-704. \nFINDINGS OF FACT AND CONCLUSSIONS OF LAW \n \n1. The Arkansas Workers’ Compensation Commission has jurisdiction over this \nclaim. \n \n2.  That  an  employer/employee  relationship  existed  on  or  about  June  17,  2020, \nwhen the claimant sustained a compensable work-related injury abrasion to his \nhead above the eye, his left knuckle, and left knee.   At the time, the claimant \n\nELLIS – H107908 \n \n3 \n \nearned an average weekly wage of $800.95 a week, sufficient for a TTD/PPD \nrate of $534.00 / $401.00 per week, respectively. \n \n3.  That the claimant has failed to establish a compensable closed head injury with \nmedical evidence supported by objective findings. \n \n4.  That  consequently,  the  claimant  is  not  entitled  to  additional  medical  and \nattorney fees at this time. \n \n5.  That all other issues are reserved. \n  \n6.  If  not  already  paid,  the  respondents  are  ordered  to  pay  for  the  cost  of the \ntranscript forthwith. \n \nREVIEW OF TESTIMONY AND EVIDENCE \n  \nThe Prehearing Order along with the prehearing questionnaires of the parties and \nthe claimant’s amended response to the prehearing questionnaire were admitted into the \nrecord  without  objection.    The  depositions  of  Dr.  Barry  Baskin;  Tobi  Taylor,  LPC; \nDetective Steven Spurgis; and Chief William Tapley were all made part of the record.  In  \naddition,  the  claimant  and  the  respondents  submitted  medical  records  along  with \nnon-medical  records  that  were  admitted  without  objection.  It  was  also  noted  that  the \nrespondents  reserved  the  right  to  take  the  Chief’s deposition at the beginning  of  the \nhearing. \n The  initial  witness  to  testify  was  Olivia  Whithead  who  testified  she  was  the \nclaimant’s fiance and had known him for about eight (8) years.  In June of 2020, she was \ndating the claimant while he worked for the Conway Police Department.  She described \nhim  at  the  time  as  being, “very social, very popular, kept a lot of friends, very public \npersonality” and was an athlete.   She became aware that he was involved in an accident \nwhile working with the Conway Police Department when he came home with a wound on \nhis  head  and  he  seemed  lethargic  and  dazed.    Prior  to  June  16,  2020,  he  had  not \n\nELLIS – H107908 \n \n4 \n \ncomplained of headaches, nausea, or vomiting, and she had never witnessed him vomit. \n(Tr. 5-7)  Since June 16, 2020, she testified he avoided social situations, interactions, and \nmeeting people, and he had not behaved like that prior to the accident. (Tr. 8)  In regard \nto the accident, she stated that prior to the accident, “he would go out and take off with \nfriends, we would be in places where you had to interact with people more.”  He was an \naccomplished  video  game  player  but  after  the  accident,  his  skill level was “completely \ndifferent.” (Tr. 9) \n Under cross-examination, Ms. Whitehead stated that she worked as a barrista and \nagreed she had never worked in the field of mental health, was not a physician,  and was \nnot qualified to issue any type of medical opinion or diagnosis.  \n The claimant was then called to testify.  He stated he was injured while working at \nthe Conway Police Department performing a “vehicle pursuit drill.”  We were chasing the \nsuspect who was actually another officer involved in the drill, when the so called suspect \nstopped his car and started running and the claimant gave chase.  He described himself \nas a big guy, 6’ 5‘’, and 300 pounds.  While chasing the significantly smaller suspect, he \nreached out to catch him, overextended, and fell, hitting his head on the sidewalk.  He \nthen clarified and stated, “I hit the corner of my head on the curb of the sidewalk.”  He \nstated  that he felt senseless when he hit the curb, seeing black.  “When I was able to \nopen my eyes, it seemed like stars or like TV static almost, and it took me like 10 or 15 \nseconds to even be able to stand up after I hit my head.”  He thought he didn’t actually \npass  out.  (Tr.  11-13)   He  felt  that he  had  scrapped  his  arm  in  an attempt  to  shield  his \nhead.  He also admitted he was an offensive linemen when he played football, and had \nbeen hit but denied being hit “specifically in the head.” (Tr. 14)   \n\nELLIS – H107908 \n \n5 \n \nAfter the incident, he was taken to Baptist Hospital, which was just down the street, \nby his supervisor, Spurgis, and while in the emergency room, he stated he threw up.  He \ncouldn’t remember the last time he threw up prior to the accident and denied throwing up \nwithin the last month prior to the accident.   His supervisor observed him vomiting.  He \nstated that his supervisor agreed in his deposition that he had not observed the claimant \nthrow  up  while  riding around  with  the  claimant  in a patrol  car  prior  to  the  incident.  The \nclaimant  also  admitted  that  he  returned  to  the  hospital  because  he  was  “extremely \ngroggy.”   He  returned  to  the  hospital, “because like obviously I was different.  I knew \nsomething was off.  I was sleeping way too much and I felt sick.  I felt lethargic, and that’s \nwhy I felt there was cause for concern,  and I went back.”  He grew up in Conway and \nknew the city like the back of his hand and after the incident, while patrolling, he would \nget  lost,  so  he  went  to  see  Dr.  Johnson.    He  stated  he  was  getting  a  lot  of  calls  and \neventually his supervisor had to drive. (Tr. 15-18)   \nHe  was  sent  to  Dr.  Johnson  by  the  Conway  Police  Department.    Prior  to  the \naccident, the claimant felt that he did not have any kind of emotional problems and that \nhe was “overtly happy.”  He admitted that he had grown up in a family household where \nthere was some abuse to his mother and he had volunteered this information to determine \nif he was suitable to become a Conway police officer because if he wasn’t mentally ready, \nhe wanted to be forthcoming.  He felt that he did not have any mental problem.  He did \nnot try to hide anything from the Conway Police Department in regard to his psychological \nevaluation.  “I felt like I would be the officer that people wanted to see policing, and not \nthe  jerks  from  wherever,  so  I  felt  like  I  could  be  the  good  guy,  essentially.” (T. 19-21)  \nWhen  it  was  determined  he  was  not  able  to  be  a  police  officer,  he  stated  it  was \n\nELLIS – H107908 \n \n6 \n \n“devastating” and changed everything.  “I mean, just because I was kind of anxious, at \nthe time I was like, you know, when somebody’s following me, but I never had like any \nsolid evidence, so there was like, you know, it was just in the back of my head.”  “And \nthen to find out that it’s real, it led to like what else is also, you know, like it just put crazy \nthoughts  in  my head,  like  it  just  shot  my enzymes  to  new  levels  that  like  I  still  feel the \neffect of today.”  He denied ever being treated for depression or anxiety prior to June 16, \n2020. (Tr. 22-23)  He stated that he felt he needed additional medical treatment because \nhe still had cognitive issues, like handling keys or smaller things and that he didn’t have \nthis problem earlier.  He  now has problems with hand/eye coordination and  with blurry \nvision.  There are times he feels that he can’t leave the house because he’s convinced \nhe is being watched.  He is extremely anxious and depressed at times.  He had none of \nthese problems prior to the head injury.  Prior to the accident, the claimant stated he was \na  well  above  average  video  game  player  and  “pretty  well  ranked  with  almost  any \ncompetitive game” that he played, but his performance level changed for the worse after \nthe  accident.  (Tr.  24-25)  He  currently was  employed  by  Shamrock  Foods  where  he \ndelivers food.       \n Under cross-examination, the claimant stated he was  twenty-five (25) years old, \nand when asked if he had been knocked unconscious in the incident, he responded, “I \ncan’t say for sure.  I can’t do it.  Literally it’s like I see ground coming and then it’s black, \nand then I can’t open my eyes but I’m sitting up.”  The claimant did agree that if he had \nbeen knocked unconscious, it could be assumed that he would have told the ER doctors \nwhen he checked in.  The claimant also admitted that he didn’t require any type of stitches \nor staples or anything above his eyebrow. (Tr. 26-28) \n\nELLIS – H107908 \n \n7 \n \n The claimant admitted he had treated with Dr. Baskin after being treated by Dr. Gil \nJohnson.  He admitted Dr. Baskin was the point man in regard to referring the claimant \nout for tests and evaluations and also agreed that he was open with him about everything \nhe could remember.  He also agreed his girlfriend had attended several visits. (Tr. 29-30)  \nHe admitted to an episode of Bell’s Palsy while in school which caused the right side of \nhis  face  to  droop  and  consequently  one  of  his  eyes  is  a  little  lower.  (Tr.  31)   He  also \nadmitted that he could currently drive and drove a moving truck from Arkansas to Arizona \nwhere he currently lives, a trip of seventeen (17) to eighteen (18) hours.  He also admitted \nvacationing in Hawaii while still treating with Dr. Baskin and to a driving evaluation with \nBaptist   Rehab.      He   did   not   dispute   his   normal   neurological   and   psychological \nexaminations  on  his  initial  ER  visit  and  the  CT  scan  of  his  head  which  showed  no \nabnormalities.  He also agreed the MRI report of his head and brain were normal.  He did \nnot remember a nerve conduction study by Dr. Baskin, but didn’t dispute any medical \nevidence  in  the  packet.   He  also  agreed  Dr.  Baskin  referred  him  to  a  specialist  for a \ndetailed eye examination, and the exam did not find anything wrong with his eyes.  The \nfollowing questioning then occurred: \nQ. So if none of your diagnostic tests show any abnormalities, you will agree \nwith me that we’re left to rely on your statements and your reporting to assess your \nsituation and the condition that you’re alleging?  Do you agree with that? \n \nA. No. \n \nQ.   Well, if there are no objective physical findings on the tests that have been \nrun, then we’re basically stuck with what you’re telling nurses, correct? \n \nA.   Oh, I’m sorry. Yeah. (Tr. 34 - 37) \n \nThe claimant also admitted seeing Dr. Zolten, a neuropsychologist, for a battery of \ntests.  He was not aware that Dr. Zolten had opined that he had displayed inconsistent \n\nELLIS – H107908 \n \n8 \n \neffort and over reporting of psychological symptoms and possible psychological overlay. \n(Tr. 38) \nThe  claimant  admitted  that “on  paper”  he  was  making  more  while  working  for \nShamrock Foods than he was while working as a prospective policeman, and worked the \nday shift.  He also admitted he had returned to the Conway Police Department after the \naccident and worked for a few days on patrol and then moved to the record department, \nwhere he continued until September of 2021.  There were no restrictions in regard to the \nabrasions on his arms or legs and it had healed up in its normal course. (Tr. 39-40) \nOn redirect, claimant responded okay to the question that the emergency room, \nalong  with  additional  medical  records,  referred  to  his  injury  as  a  closed  head  injury  as \nopposed to a brain injury. (Tr. 41)   He also admitted the records referred to a concussion \nand he did not specifically know what was causing his problem.  He also agreed that if \nthe  medical  providers  referred  to  his  condition  as  a  closed  head  injury, that’s what he \nprobably had. (Tr. 42-43) \nThe  deposition  of  Dr.  Barry  Baskin  was  taken  on  March  9,  2022.  Dr.  Baskin \ntestified that he had been working as a physical medicine and rehab doctor in Little Rock \nsince July of 1991.  The first time he saw the claimant was September 3, 2020. (Cl. Ex. \n2,  P.  6-7)  He stated the claimant had a negative work up and “didn’t really have any \nsignificant objective problems, and his exam was not really particularly impressive either.  \nI mean, he had -- I guess he was -- his ability to give a history and to stay on track was -\n- he was kind of all over the place and -- but, again, his neuro exam was normal.  He had \na normal gait; he had normal movements, and I just felt like we -- that based on what I \nsaw, which again, there weren’t a lot of hard objective findings, but he complained of not \n\nELLIS – H107908 \n \n9 \n \nsleeping well, blurred vision, irritability, and so I felt like we needed to work him up a little \nbit further.”  (Cl. Ex. 2, P. 8)  He went on to state that if the claimant had hit the concrete \nin  a  really  direct  way  and  had  a  bleed  or  skull  fracture  or  something  that  was  clearly \nmeasurable,  he  felt  that  you  could  see  it  on  the  initial  scans.    However,  he  felt  the \ncomplaints were “bothersome enough” the claimant needed to be checked out.  He went \non to explain that a closed head injury was when somebody had trauma to their head, \nusually  blunt  trauma,  not  penetrating  trauma,  and  you  don’t  have  to  have loss  of \nconsciousness.  A traumatic brain injury is when there was trauma to the head and you \nhave findings on the imaging studies where you might see a skull fracture or a subdural \nor epidural bleed inside the skull.  A concussion is when people essentially have a blow \nto the head and they have some alteration of their level of consciousness.  They may be \nknocked out and their mental  status  may  be  altered  in  some  way.  He went ahead \nand stated, “I think he fell -- it looked -- it sounded like he fell, hit his head, and  had a \nclosed head injury without any positive findings on his imaging studies.” (Cl. Ex. 2, P. 9-\n10)  Dr. Baskin agreed a scar above the eyebrow as a result of a fall could be considered \nobjective evidence. (Cl. Ex. 2, P.11)  Dr. Baskin also testified there were a lot of symptoms \nassociated  with  a  closed  head  injury  which  could  include  headaches,  blurred  vision, \nmemory  loss,  loss  of  concentration and  focus,  inability  to  do  things  that  they  could  do \nbefore without difficulty, and vomiting. (Cl. Ex. 2, P.12) \nDr. Baskin was then questioned about the brain being shaken, and stated a brain \ncould  float freely  around  in the  skull  which  is  called a  coup-contrecoup  injury,  and  you \nknow it due to a bruise on the brain on the exact opposite point and that was not seen in \nregard to the claimant and there were no measurable findings. (Cl. Ex. 2, P.13) “I would \n\nELLIS – H107908 \n \n10 \n \nthink the more mild the trauma, the less likely the outward objective findings would be.”  \nHe agreed that MRI’s and EEG’s were not 100% accurate. (Cl. Ex. 2, P.15) \nDr. Baskin referred the claimant to Michelle Cox, a speech language pathologist, \nwho  did  find  evidence  of  some  loss  of  executive  function,  so  the  claimant  was  then \nreferred to Dr. Magiera-Planey, a neuropsychologist to further check the claimant out.  He \nalso stated that he used Dr. Zoten the most. (Cl. Ex. 2, P.16 - 17) \nDr. Baskin was questioned about feeling the claimant should not return to police \nwork.  He responded the claimant appeared anxious and depressed at times, and, “Dr. \nZolten felt that the claimant had enough emotional overlay that he didn’t think he was safe \nto go back and be out on patrol carrying a gun.” (Cl. Ex. 2, P.19)  He went on to state the \ntwo (2) neuropsychologists didn’t think that he had really very much if any, cognitive loss, \nand his cognition was pretty good.   The claimant did seem to manifest more emotional \nand behavioral things Dr. Baskin felt was likely to affect him returning to work.  (Cl. Ex. 2, \nP.21)  \nIn  regard  to  objective  evidence,  Dr.  Baskin  testified  he  felt  that  the  objective \nfindings came more from Dr. Magiera-Planey and Dr. Zolten’s evaluations.  He felt the \nclaimant’s behavior was “just a little off plumb.”  He appeared to be “addled.” (Cl. Ex. 2, \nP.23) \nDuring the examination by the respondent’s attorney, Dr. Baskin was questioned \nabout the mention of an adjustment disorder.  He stated that the adjustment disorders he \nfrequently sees with people with a head injury are seen with mixed anxiety or depression.  \nThey are not sleeping well. Their mood can be down a bit. (Cl. Ex. 2, P.31)  He thought \nDr. Zolten said PTSD, but it wasn’t real clear and it alluded to the fact of the claimant’s \n\nELLIS – H107908 \n \n11 \n \nhome life while growing up.  Dr. Magiera-Planey didn’t diagnose that and Ms. Taylor, the \nprofessional counselor, thought he had more of an adjustment disorder and not PTSD. \n(Cl. Ex. 2, P.32) \nDr.  Baskin  was  specifically  asked, “you  are  not  prepared  to  state  within  a \nreasonable  degree  of  medical  certainty  Mr.  Ellis  has  an  adjustment  disorder  related  to \nthis  fall  during  police  training,  are  you.”    He  responded, “I  don’t  --  I can’t  say  with \nreasonable medical certainty what it’s from.”  Dr. Baskin also provided he did not think \nthat the claimant had PTSD at all. (Cl. Ex. 2, P.33)   He was also asked if the neuropsych \ntesting was removed from the equation in the claimant’s case, “is there any objective \nevidence to establish the presence of traumatic brain injury, closed head injury?”  He \nresponded,  “None  -- not  any  measurable  objective  findings.”  (Cl.  Ex.  2,  P.35)   He \ndescribed the claimant as addled, and consequently, that was why he ran this by so many \npeople.  He described addled as when they would have a conversation in his office, “he \nwould sort of bounce -- he would bounce around, bounce all over the place.  He wouldn’t \nstay on track.  He doesn’t -- this is another thing.  I don’t know why he has this, but Jessie \ndoesn’t make eye contact.  You and I, and Mr. Walker and I, can look at each other in the \neye, and we’ve been doing this here for a little while today.  Mr. Ellis never looks you in \nthe eye.  He’s looking around; he doesn’t -- he avoids eye contact.  As a matter of fact, \nhe will go for almost an entire appointment with his eyes shut.”  (Cl.  Ex.  2,  P.36)  Dr. \nBaskin was also questioned about his report where it provided that, “he was on the outside \nlooking in at himself like he was an observer,” which was mentioned several times and \nwas  unusual.    Dr.  Baskin  agreed  there  was  no  objective  basis  to  explain  the  above \nphenomenon.  He agreed it was hard to determine how much of the claimant’s problems \n\nELLIS – H107908 \n \n12 \n \nwere premorbid versus post-traumatic. (Cl. Ex. 2, P.43-44)  He also agreed the CT of the \nclaimant’s head early in the claim was normal, the MRI on July 30, 2020, returned normal \nresults, and there were repeated normal neurological exams by various physicians.  The \neye doctor didn’t find any abnormalities, hemorrhages, a detached retina, or evidence of \ntrauma  in  the  eye.    X-rays  were  normal  on  February  20,  2021,  and  there  was  also  a \nnormal EEG on February 24, 2021.  The following question was then asked: \nQ. If someone truly had a traumatic brain injury or closed head injury, would \nyou  expect  them  to  have  no  evidence  of  any  damage  to  their  brain  across  the \nspectrum of all those tests and examinations? \n \nA. It would be unusual to have somebody have all those tests and evaluations \nand not have any positive objective findings.  Again, I have seen people that had \nno  findings  on  scans,  and  they  were  clearly --  had  had  a  head  injury  and  had \nalteration  of  their  level  of  consciousness,  but  more  times  than  not,  I  would say \nsome of those would be positive.  You would expect, more times than not, some \nof those things to be positive than for all of them to be negative. (Ex. 2, P.45-46) \n \nDr. Baskin stated that Dr. Magiara-Planey didn’t find a lot of things wrong either and he \nagreed that Dr. Zolten’s assessment found no neurocognitive deficits based on his battery \nof  tests and didn’t  find  any  substantial  findings.    Emotionally  and  behaviorally,  t   he \nclaimant did. (Cl. Ex. 2, P.47)  Dr. Baskin also stated that in regard to the neuropsych and \nthe psychological counselor and the speech therapy and the two neuropaths together -- I \nshouldn’t say one but both, those things would lead me to believe that he does have some \nemotional behavioral deficits as a result of this injury, I have essentially labeled him as an \nadjustment  disorder.  “Dr. Zolten labeled him differently, and so  --  but  based  on  the \nquestion you are asking, I would say, yes, the neuropsych reports are probably the thing \nthat  led  me  there  more  than  anything  else.    However,  Dr.  Baskin  again  stated  that  he \ncould  not  say  with  a  reasonable  degree  of  medical  certainty  that  the  adjustment  order \nwas  causally  related  to  his  work  injury,  stating  that  it  was  not  clear  to  him.  (Ex. \n\nELLIS – H107908 \n \n13 \n \n2, P.50-51)  He agreed with the report note of Counselor Taylor of June 23, 2021, which \nprovided she could not say that the PTSD stemmed from the accident.  Dr. Baskin was \nunable to identify any objective evidence supporting the existence of a brain injury or the \nexistence of a mental or psychological or emotional disorder. (Cl. Ex. 2, P.53-54)  \n Dr. Baskin was again questioned by claimant’s attorney and was asked if the \nclaimant hit his head hard enough to have objective evidence of a head injury, would that \nhave  been  sufficient  trauma  to  cause  some  shaking  of  his  brain?   He responded, “It’s \npossible.  It would require speculation on any of our parts, I believe, because we don’t \nhave any objective findings to quantify that.”   In regard to vomiting right after the accident, \nthat,  “further  indicates  that  he  had  a  pretty  significant  trauma  to  the  head.” (Cl.Ex.2, \nP.58-59) \n The respondent’s attorney then questioned Dr. Baskin and asked if he could state \nwithin  a  reasonable  degree  of  medical  certainty  that  there  was  movement  of  the \nclaimant’s brain at the time of the accident, and Dr. Baskin responded he could not.  He \nalso  again  agreed  that  there  was  no  determination  of  bruising of the  brain  and  that he \ncould  not  say  with  a  reasonable  degree  of  medical  certainty  that  the  emotional  or \nbehavioral  injuries  were  related  to  the  accident  and  that  findings  of  such  would  be \nsubjective. (Cl. Ex.2, P.60-63)  \nThe deposition of Tobi Taylor, LPC, taken on April 4, 2023, approximately a little \nover a year after the deposition of Dr. Baskin, was also introduced into the record.  The \ninitial questioning was by the attorney for the claimant.  Ms. Taylor testified she was a \nLicensed  Professional  Counselor  who  does  a  mix  of  therapeutic  approaches  which \ninclude  trauma  therapy  and  cognitive  behavior  therapy  and  she  works  with  a  full  age \n\nELLIS – H107908 \n \n14 \n \nrange of people.  She admitted she had provided therapy to the claimant and believed \nthe  claimant  performed  his  original  testing  at  their  facility  for  the  Conway  Police \nDepartment.  (Cl.  Ex.3,  P.5)    She  understood  he  required  therapy following  a  training \naccident.  Intake information provided he had hit his head on the curb and had headaches, \nvisual disturbances, and aphasia. He reported confusion, loss of his sense of direction, \nfrequent unwarranted mood changes, anger issues, and sleep disturbance issues.   \nBased  upon  the  initial  intake  information,  she  stated  she  gave  the  claimant  a \ndiagnosis of adjustment disorder with mixed anxiety and depressed mood, which was a \nDSM criteria.  She stated an adjustment disorder criteria would be within the last six (6) \nto  twelve  (12)  months  after  he  had  a  life  event  or  an  experience  that  brought  on  the \nchanges  in his mood and  personality.  There were qualifiers to  an adjustment disorder, \nand based upon the information the claimant provided, he was experiencing depressive \nepisodes  and  anxiety  symptoms  which  was why  he  was  given a  mixed  diagnosis.    No \ntesting was given at the time in order to determine or make the diagnosis.  The only testing \nat that time was the original testing for the Conway Police Department.  She also stated \nthat  she  did  a  Post-Traumatic  Stress  Disorder  rule  out  which  means  that  upon  further \nexamination and time spent with him she was going to start looking for trauma-associated \nsymptoms,  stating  she  did  not  have  enough  information  at  the  intake  to  make  that \ndiagnosis.  She thought the diagnosis was still a possibility, but based upon her time with \nhim, she did not go back and change the diagnosis to post-traumatic stress.  She agreed \nDr. Baskin had recommended additional testing and treatment of the claimant which was \nnot approved.  Her last treatment of the claimant was on September 9, 2021, and it was \nher opinion the claimant still needed additional treatment. (Cl. Ex.3, P.6 - 9)  She stated \n\nELLIS – H107908 \n \n15 \n \nshe  performed  EMDR  sessions  which was  a  trauma  therapy  which  stands  for  Eye \nMovement Desensitization and Reprocessing and she thought the claimant would benefit \nfrom  having  additional  sessions.    It  was  evidence  based  and  when  asked  if  he  could \nmanipulate the treatment, she stated, “I mean I guess everything could be manipulated.”  \nShe described that evidence based meant there was evidence to support the efficacy of \nthe treatment and it was objective. (Cl. Ex.3, P.10 -11)  She testified that a CBT session \n(cognitive  behavioral  therapy)  was  a  way  to  change  your  thoughts  and  behavior.    It \nworked by the therapist asking direct questions in an attempt to get to the target issue \nand  to  make  people  think  through  their  behavioral  responses.    It  helped  you  be  more \nmindful on the front end to understand where thoughts and behaviors were coming from.  \nShe admitted she treated a lot of trauma induced conditions, but when asked if there were \nany  type  of  validity  processing,  she  responded  that  the  client was  the  only  source  of \ninformation  typically  for  her.  (Cl. Ex.3,  P.12-13)  She  also  admitted  she  had  reviewed \nsome psychological testing on the claimant and that testing would include validity checks, \nbut if somebody was telling me, “I’m having these symptoms,” then, “I don’t have a way \nto refute that they’re having those symptoms.” (Cl. Ex.3, P.14)   Ms. Taylor stated that in \nregard to physical manifestations in regard to closed head injuries, again they would be \noutside of her scope. (Cl. Ex.3, P.16)  She was specifically asked, “Is it not important for \nyou  to  determine  what  you  believe  is  the  triggering  event  in  order  to  properly  provide \ntherapy?”  She responded, “No, because I’m treating the symptoms.  I’m treating what -- \nhow it shows up in his daily life, because I am not the medical doctor.” (Cl. Ex.3, P.18) \nUnder questioning by the respondent’s attorney, Ms. Taylor testified that she was \nnot providing an opinion the claimant had suffered a traumatic brain injury, “because I am \n\nELLIS – H107908 \n \n16 \n \nnot qualified to do so.” (Cl.  Ex.3,  P.34)   She also  agreed  she  was not opining  that  the \nclaimant had any permanent restrictions or limitations because, “There’s no way I could \nbe.” (Cl. Ex.3, P.45)  She could not say with any degree of medical certainty that he had \na PTSD diagnosis associated with the accident. (Cl. Ex.3, P.48)  She agreed she based \nher opinions and her treatment model for the claimant on what he had told her. (Cl. Ex.3, \nP.50)  She also had no evidence to rebut the statement by Dr. Zolten that the claimant \nhad  no  cognitive  deficits,  stating, “I don’t test for a cognitive deficit.” She performs no \ntesting on her own. (Cl. Ex.3, P.53-54)  What the claimant can or can’t do involving work \nis ultimately based upon what the claimant is telling her. (Cl. Ex.3, P.62 - 63)  She was \nthen asked the following questions: \nQ, Okay.  This adjustment disorder with depression, anxiety, panic attacks, you \nare not providing an opinion that this is causally related to him tripping and falling, \nwith a reasonable degree of certainty, are you?  \n \nA.  I can only respond to what he -- the information that he gave me and the \ninformation that I have in his record. \n \nQ.   Okay. \n \nA.   And  you  say  that  the  time  of  the  intake  he  met  the  diagnostic  criteria  for \nadjustment disorder mixed. \n \nQ.  Okay.  But  you’re   not  providing  a  causation  opinion  as  to  what  has \ncaused --  \n \nA.   My  only opinion  is  that  he  reports to  me that  all of these  symptoms were \neither started or magnified post-accident. \n \nQ.  Okay.  And that’s not really an opinion; it’s a --  \n \nA.   It’s a reporting of what he --   \n \nQ.  -- repetition of what he said.  Right? \n \nA.   Yes.  Uh-huh.   \n \n\nELLIS – H107908 \n \n17 \n \nQ.   Okay.  So, ultimately he’s in control as far as what the diagnosis is based \non what he reports to you as a clinical professional. \n \nA.   Yes.  (Cl. Ex.3, P. 63 - 64) \n \nThe  deposition  of  Detective  Steven  Spurgis  was  also  made  part  of  the  record \nwithout objection.  Detective Spurgis admitted he was the claimant’s training officer and \nrecalled  the  claimant  being  involved  in  an  incident  at  work  on  June  17,  2020, while \nworking  together  that  involved  a  fall.    He  remembered  seeing  an  abrasion  on  the \nclaimant’s head.  He stated the claimant did not appear any different immediately after \nthe  fall,  but  became  nauseous  and  sick  while  at  the  hospital,  where  they waited  to  be \nchecked out.  He agreed the claimant had not complained about being nauseous and sick \nprior to the accident.  He felt that the claimant seemed fine his first couple of shifts after \nthe accident.  He also testified that the claimant was grading poorly prior to the accident \nand that he was concerned about the claimant being able to perform the duties of a patrol \nofficer. (Cl. Ex. 5) \nThe deposition of Chief William Tapley was also entered into the record without \nobjection.  He admitted knowing the claimant but stated he was not the Chief of Police \nwhen the claimant was hired.  The claimant was given a conditional offer when hired and \nhad to take a psychological evaluation and a drug test.  After the injury, the claimant was \ngiven a limited-duty job, which would not have happened unless someone in the Conway \nPolice Department made the determination that he had sustained a job-related injury.  He \nhad no, “idea about his injuries or his diagnosis.”   The Chief agreed that he made the \ndecision to terminate the claimant’s employment.  Based upon the claimant’s file, he felt \nthe claimant would not have been released to patrol on his own.  Chief Tapley testified \nthat  there  was  an  extensive  training  period  which  lasted  about  eight  (8)  months in  the \n\nELLIS – H107908 \n \n18 \n \nprocess of becoming a patrolman and the candidate was constantly being evaluated.  He \nalso  stated  there  was  no  mention  of  physical  limitations  by  the  claimant  during  their \nconversation involving the claimant’s termination. (Cl. Ex. 6)    \nClaimant’s Exhibit  One  which  consisted  primarily  of  medical  records  was  made \npart of the record without objection and consisted of 159 pages plus a four-page index.  \nIt provided that the claimant was seen by Dr. Gil Johnson on December 18, 2019, related \nto  ptosis  of  the  right  eye.  The  claimant  obtained  a  preemployment  psychological \nscreening on December 19, 2019, which provided that the test and interview did not reflect \nemotional or behavioral traits that are associated with psychological disorders or chronic \nemotional or maladjustment, or which would preclude certification as a law enforcement \nofficer. (Cl. Ex. 1, P. 1 – 5)   \nEmergency room medical reports of June 17, 2020, were also part of this exhibit.  \nAn abrasion of the left eyebrow, left hand, and right lower extremity were noted on the \nvisit diagnosis.  The arrival complaint referred to a hand injury. The report provided that \nthe  claimant  arrived  ambulatory  with  a  steady  gait  and  was  cooperative  with  no  acute \ndistress.    His  pupils  were  of  equal  size  and he  responded  briskly.    He  denied  loss  of \nconsciousness.  In regard to the claimant’s emesis, the report provided there had been \nsome nausea but after emesis on arrival to the emergency room, the nausea resolved.  \nThe  claimant  had  denied  any  significant  headache,  and  no  numbness,  weakness, nor \nvision change was noted.  Under neurological, the report provided that the claimant was \noriented to person, place, and time.  The assessment mentioned the abrasions and the \nemesis, but stated there was now no nausea and the claimant was neurologically intact \n\nELLIS – H107908 \n \n19 \n \non exam.  It was also noted that the discharge information provided for multiple types of \nhead wounds and warned about obtaining help if vomiting occurs. (Cl. Ex. 1, P. 6 - 30)     \n    The claimant returned to the Conway ER at Baptist Health a few days later and \nthe report provided he had started to have a dull headache, had worked a shift Friday, \nand was having a hard time concentrating with confusion during his shift and was having \ndifficulty  navigating  around  the  city.    A  closed  head  injury  on  the  initial  encounter  was \nreferred  to.    The  CT  of  the  head  provided  for  no  evidence  of  an  acute  or  subacute \nintracranial hemorrhage. (Cl. Ex. 1, P. 31 – 47) \nOn  June  22,  2020,  the  claimant  presented  to  the  clinic  of  Dr.  Johnson.    Under \nimpression,  the  report  provided  for  closed  head  trauma  with  a  contusion  to  the \nfrontal/parietal skull, posttraumatic headache, nausea and vomiting related to the head \ntrauma, with a slightly altered mental status related to a head trauma, and currently stable.  \nThe claimant returned to work with restrictions. (Cl. Ex.  1, P 47 - 49)  A follow up note \ndated June 24, 2020, provided that the claimant still had some posttraumatic headache. \n(Cl. Ex. 1, P. 50, 51)  The claimant again returned to Dr. Johnson on June 29, 2020, and \nthe report provided that the claimant was not at maximum medical “benefits”, was not \ncomplaining  of  headaches,  and  had  slight  memory  issues.  (Cl.  Ex.  1,  P. 52,  53)    The \nclaimant  again  returned  to  Dr.  Johnson  on  July  7,  2020,  and  the  report  provided for \ncontinued improvement with no headaches and normal gait and speech. (Cl Ex. 1, P 54, \n55)  The claimant made another visit to the office of Dr. Johnson on July 27, 2020, stating \nhis  headaches  had  returned  and  he  had  noticed  a  change  in  his  memory.    The  report \nprovided that an MRI was indicated. (Cl Ex. 1, P. 56, 57)   \n\nELLIS – H107908 \n \n20 \n \nAn MRI was performed on July 30, 2020, which provided that there was a normal \nbrain.  The claimant then returned to Dr. Johnson on July 31, 2020.  The report provided \nthe claimant had not reached MMI and was still suffering symptoms most likely related to \npost concussive syndrome. (Cl. Ex. 1, P. 58 – 62) \nThe claimant was referred by Dr. Johnson to Dr. Barry Baskin on September 3, \n2020, for an evaluation of a closed head injury.  The report provided that the claimant had \na “fairly normal neuro exam.” (Cl. Ex. 1,  P.  63 –  65)    A  report  from  Dr.  Baskin  dated \nSeptember 11, 2020, provided the claimant could return to work with modifications and \nwas suffering from post concussion syndrome with little difficulty thinking, and moderate \ndifficulty with memory.  (Cl. Ex. 1, P. 66 - 72) \nThe claimant again returned to Dr. Baskin on October 1, 2020. (Cl. Ex. 1. P. 73 – \n76)  The evaluation by Dr. Baskin on October 6, 2020, provided the claimant had a mild \nclosed head injury on June 17, 2020.  Speech therapy had noted some loss of executive \nfunction  and  memory  deficits.    The  eye  examination  was  negative.    Right  sided \nclumsiness was noted.  Continued speech therapy with Michelle Cox was recommended.  \n(Cl. Ex. 1, P. 77 – 79) \nA  neuropsychological  exam  dated  November  13,  2020,  by  Renne  Magiera-\nPlanney, Ph. D., provided that the claimant would have difficulty returning to many of his \nprevious  duties  as  a  police  officer.    He  was  suffering  from  mild  impairments  in his \nexpressive  language  skills,  with  mild  impairments  in  his  comprehension.    He  was \ndiagnosed with Acquired Cognitive disorder. (Cl. Ex. 1, P. 80 – 83)  The claimant then \nreturned to Dr. Baskin on December 1, 2020.  Dr. Baskin stated “I have a hard time based \non this gentlemen’s ability to give accurate history knowing what his functional status was \n\nELLIS – H107908 \n \n21 \n \nprior to the injuries.”  (Cl. Ex. 1, P. 84 – 86)  The claimant again returned to Dr. Baskin on \nJanuary 5, 2021, and was seen by a speech-language pathologist on January 7, 2021.  \nThe EEG report of February 25, 2021, was normal. (Cl. Ex. 1, P. 87 – 90)  The claimant \ncontinued to be seen by a speech language pathologist. (Cl. Ex. 1, P. 91 – 96)   \nOn  April  12,  2021,  the  claimant  was  again  evaluated  by  Dr.  Baskin.    He  again \nopined that the claimant was suffering from a closed head injury on June 17, 2020, and \nstated  he  felt  he  was  suffering  from  cognitive  deficits.    He  also  mentioned  unreliable \nactions that reflected on the claimant’s neurocognitive and psychological functioning.   (Cl. \nEx. 1, P. 97 – 98)  The claimant’s last day of speech therapy appeared to be May 3, 2021. \n(Cl.  Ex. 1, P. 100, 101)  He continued to be seen by Dr. Baskin. \nA report by Tobi Taylor, LPC, provided they discussed the claimant’s lack of trust \nin his memory and his continued headaches, visual disturbances, aphasia, and confusion. \n(Cl.  Ex.  1,  P.  106 –  109)    The  claimant  continued  seeing  Dr.  Baskin  with  the  report  of \nJune 23, 2021, providing that his neuro psych in the past was always normal and that Dr. \nZolten had felt that the claimant had given some inconsistent effort and that he had PTSD.  \n(Cl. Ex. 1, P. 110 – 112) \nThe  claimant  returned  to  Dr.  Baskin  on  August  16,  2021,  for  an  evaluation.  A \nvacation  trip  by  the  claimant to  Hawaii  was mentioned.    The  possibility  of  sleep apnea \nwas  also  mentioned due  to  the  claimant’s  large  size.  (Cl.  Ex.  1,  P.  118,  119)    On \nSeptember 14, 2021, Dr. Baskin, using the AMA Guides to the Evaluation of Permanent \nImpairment 4\nth\n Edition, turning to the chapter on the nervous system on page 142 and in \nreviewing   the   mental   status   impairments   and   table   3   emotional   and   behavioral \nimpairments,  felt  that  the  claimant  presented  with  a  mild  limitation  of some  but  not  all \n\nELLIS – H107908 \n \n22 \n \nsocial and interpersonal daily functioning.  He further stated he could only rank him on \none  of  the  tables,  and  he  thought  that  emotional  or  behavioral  impairments  were  the \nbiggest issue and then opined that the claimant was at MMI with a 14% permanent partial \nimpairment   rating,   and   recommended   a   vocational   rehabilitation   evaluation   and \ncounseling. (Cl. Ex.1, P. 123 – 125)  \nThe claimant presented as a new patient to the Tilley Family Clinic on February \n14,  2022.    He  provided  he  had  difficulty  comprehending  what  he  read  and reported \ndepression, along with blurry vision. (Cl. Ex. 1, P. 126 – 135)  On January 25, 2023, the \nclaimant then presented to Bridgette Rene Boyer, PA.  The claimant was attempting to \nestablish  care  in the  state  of  Arizona.   The  report  provided the  claimant  stated he had \ndifficulty  concentrating  with  trouble  falling  a  sleep.    He  mentioned  that  he  was being \ntreated for a workers’ compensation injury but that he had not seen a neurologist.  The \nreport  referred  to  a  closed  traumatic  brain  injury  with  a  loss  of  consciousness  of  thirty \nminutes or less.  (Cl. Ex. 1, P. 136 – 146)  The claimant then presented to Dr. Harpreet \nKaur Sandu on May 31, 2023, for a neurology office visit.   The report referred to a history \nof  a generalized  anxiety  order.   In  addition,  the  report  referred  to  the  claimant  thinking \nthat his psychological issues were contributing to his cognitive issues and referred to a \nhead injury in 2020. (Cl. Ex. 1, P. 147 - 152) \nA  neuropsychological  evaluation  report  by  Danny  Rosenbaum,  PhD  dated,  July \n21,  provided  the  claimant  presented  as  alert,  oriented,  friendly,  forth coming,  and \nmotivated.  The report provided that the claimant’s immediate memory fell in the low \naverage range, his list learning was in the average range, and his story memory was low \naverage.  However, his delayed List and story memory increased to the above average \n\nELLIS – H107908 \n \n23 \n \nrange,  which  suggested  that  the  claimant  was  able  to  retain  as  well  as  increase \ninformation  after  a  delayed  period  of  time.    His  impaired  performance  on  the  attention \nsubtest most likely had some negative affect on other subtests.  The reading test provided \nthat the claimant was at the high school grade level which was appropriate.  His below \naverage visuospatial and language scores were most likely affected by selected slowed \nprocessing, attention, and fatigue. (Cl. Ex. 1, P. 153 – 159)  \nThirty-five  (35)  pages  of  non-medical  evidence  with  a  one  page  index  was \nintroduced by the claimant and admitted without objection and made part of the record. \n(Cl. Ex. 4)  This included the eligibility requirements for the Conway Police department \nand an autobiography of the claimant which provided that the claimant had grown up in \nthe home of his mother and there was not a lot of money to go around.  He had helped \nbuild  three  homes  while  in  high  school  and had  played  football.  (Cl.  Ex.  4,  1-3)      It \nappeared the claimant was a high school graduate with a weighted GPA of 2.49. (Cl. Ex. \n4,  PP.  5-6)  The  background  investigation  for  employment  at  the  Conway  Police \nDepartment by Lt. Glen Cooper provided that the claimant’s character references that \nhad  been  provided  by  the  claimant  plus  one  that  was  not  listed,  all  had  exemplary \ncomments  in  regard  to  the  claimant.    The  report  provided  that  the  claimant  was  big, \nstrong,  nice,  compassionate,  and  level  headed,  with  knee  problems  from  football  and \nbells palsy was also mentioned. (Cl. Ex. 4, PP. 7-31)  A letter from Chief Tapley, dated \nSeptember 29, 2021, provided that the claimant was being released from his employment \nduring his probationary period, consistent with the guidelines and procedures of the City’s \nEmployee Handbook. (Cl. Ex. 4, P. 35)  \n\nELLIS – H107908 \n \n24 \n \nThe  respondents  submitted  fourteen  (14)  pages  of  medical  records  without \nobjection.  A CT scan of the head of the claimant was taken on June 20, 2020, when the \nclaimant  presented  with  the  complaint  of  head  trauma  and  headache.    The report \nprovided  there  was  no  evidence  of  an  acute  or  subacute  intracranial  hemorrhage,  no \nfracture, and no significant abnormality.  The claimant received an MRI on July 30, 2020, \nwhich provided his brain was normal with the report signed by Dr. Gil Johnson. (Resp. \nEx. 1, P. 1-3)  \nAn  evaluation  by  Dr.  Barry  Baskin  dated  December  17,  2020,  provided  that the \nclaimant received a neuropsych evaluation by Dr. Mageira-Planey, who felt that additional \nneuropsych testing would be of value in this case.  In addition, the report provided there \nwere  no  objective  findings  with  regard  to  imaging  studies  or  neurologic  pathology.    It \nfurther provided that they were going to attempt to obtain a neuropsych assessment from \nDr. Zolten. (Resp. Ex. 1, P. 4) \nA progress note from an occupational therapist dated January 7, 2021, provided \nthe claimant demonstrated excellent reaction time with poor depth perception but during \nthe road assessment, his depth perception did not impair his driving and he demonstrated \nthe fitness to operate a vehicle. (Resp. Ex. 1, P. 5)   A report from the Little Rock Eye \nClinic and Dr. Jennifer Doyle dated February 10, 2021, provided the claimant’s optic nerve \nand macula were within normal limits but that he had some changes in his left eye.  The \nreport also referred to a traumatic brain injury/closed head injury but stated, “Fortunately \nI do not see any afferent damage.” The report went on to provide that from an ocular \nstandpoint, she did not see any permanent damage. (Resp. Ex. 1, PP. 6-7)  \n\nELLIS – H107908 \n \n25 \n \nDr. Baskin made an EEG referral on February 1, 2021. (Resp. Ex. 1, P. 8)  A report \nby  Dr.  Krishna  Mylavarapu,  dated  February  25,  2021,  provided  that  the  EEG  of  the \nclaimant was normal. (Resp. Ex. 1, P. 9)  Finally, a report from Dr. Zolten dated April 2, \n2021,  mentioned  that  the  claimant  was  referred  by  Dr.  Baskin  and  provided that  the \nclaimant had stated he continued to have problems dropping items and manipulating his \nhands.   The  claimant  was  administered  various tests  and under  impression, the  report \nstated  the  claimant  had  a  history  of  mild  traumatic  brain  injury  with  post  concussive \nsymptoms.  Current tests results were reported to not be overly reliable due to evidence \nof both inconsistent effort and over-reporting of psychological symptoms.  In general, the \nreport provided there were no overt deficits in the claimant’s neurocognitive profile, with \nthe exception of poor visual construction skills and the related incidental visual memory. \n(Resp. Ex. 1, PP. 10-14)   \nRespondents also submitted one hundred twenty-one (120) pages of non-medical \nrecords  which  included  one  hundred  fifteen  (115)  pages  of  the claimant’s field training \nobservation reports and evaluations where it appeared that the claimant had multiple “not \nacceptable” reviews in multiple areas in regard to daily observation reports, but that he \nwas  improving  his  score  as  time  went  on.  (Resp.  Ex.  2,  PP.  4-119)    An  exit  interview \nprovided the claimant had refused to sign it. (Resp. Ex. 2, P. 120) \nA letter addressed to Carol Worley by Dr. Barry Baskin dated February 5, 2022, \nprovided that the claimant’s case was a complicated one.  It stated the claimant “sustained \na closed head injury on the job as a rookie Conway Police Department officer on June \n17,  2020.”  “He  had  a  closed  head  injury  without  any  significant  hemorrhages,  skull \nfracture, or significant objective findings on the imaging studies.”  Dr. Baskin also stated \n\nELLIS – H107908 \n \n26 \n \nthat a normal neuro exam is not uncommon with a patient with a traumatic brain injury, \npost-concussion syndrome, or disorders of consciousness (DOI).   It was mentioned that \nDr.  Zolten felt the claimant’s results were not entirely reliable  but  felt  that  the  claimant \nmay  have  gone  back  to  work  too  soon  and  developed  PTSD  symptoms.    Dr.  Baskin \nprovided that “the onset of these symptoms, in my opinion, are related to his work injury.”  \n“You question my impairment rating from September 14, 2021.  You noted that  your \nreview of the CT and MRI along with the EEG that was done failed to show any objective \nfindings to support that.  Again, this is not uncommon.  A large number of patients who \nhave sustained a traumatic brain injury have normal objective findings.  Dr. Baskin opined \nthat the claimant had a 9% rating using table 3 on page 142 of the AMA Guides to the \nEvaluation of Permanent Impairment 4\nth\n Edition.  \nDISCUSSION AND ADJUDICATION OF ISSUES \n \nThe  employee  has  the  burden  of  proving  a  compensable  injury.   Carman  V. \nHaworth  Inc.,  74 Ark. App.  55,  45  S.W.  3d 408  (2001)   A  compensable  injury must be \nestablished  by  medical  evidence  supported  by  objective  findings.    Arkansas  Code \nAnnotated  §11-9-102(4)(D).    Objective  findings  are  those  findings  which  cannot  come \nunder  the  voluntary  control  of  the  patient.  Ark.  Code  Ann.  §  11-9-102(16)(A)(I).    In \ndetermining  whether  the  claimant  has  sustained  his  burden  of  proof,  the  Commission \nshall weigh the evidence impartially, without giving the benefit of the doubt to either party. \nArk. Code Ann. §11-9-704.  Wade v. Mr. Cavananugh’s, 298 Ark. 364, 768 S.W. 2d 521 \n(1989).  Further, the Commission has the duty to translate evidence on all issues before \nit into findings of fact.  Weldon v. Pierce Brothers Construction Co., 54 Ark. App. 344, 925 \nS.W.2d 179 (1996). \n\nELLIS – H107908 \n \n27 \n \nThe claimant was injured while chasing a “suspect” and fell  while  performing  a \nvehicle pursuit drill.  The claimant suffered a compensable work-related abrasion to his \nhead above the eye, his left knuckle, and left knee.  The claimant testified he hit his head \non a concrete curb during the fall which resulted in a closed head injury, causing him to \nact  differently  after  the  accident.    He  stated  he  was  sleeping  more,  felt  sick,  and  was \nlethargic.  He threw up in the ER.  He had grown up in the city of Conway, knew the city \nwell,  and  now  was  getting  lost.    He  had  developed  cognitive  issues  and  also issues \nhandling  small  items  with  his  hands.    He  no  longer  was  an  accomplished  video  game \nplayer  and  had  times  when  he  was  anxious,  depressed,  or  angry,  unlike  prior to  the \naccident.   \nThe  claimant  was primarily  treated  by  Dr. Baskin,  who  first  saw the  claimant on \nSeptember 3, 2020, and stated the claimant had a negative work up with no measurable \nfindings and with no objective evidence that establish a closed head injury.  The early CT \nof the claimant’s head was normal as was the MRI of July 30, 2020.  There were reported \nnormal neurological exams by various physicians.  The claimant’s eyes were examined \nby a specialist and no abnormalities or hemorrhages were found.  An EEG was normal.  \nDr. Baskin stated that Dr. Magiaro-Planey didn’t find a lot of things wrong and Dr. Zolten \nassessed no neurocognitive deficits.  Dr. Baskin felt that the neuropsych reports led him \nto believe the accident could have caused an adjustment disorder, but he could not say \nwith a reasonable degree of medical certainty that the adjustment disorder was causally \nrelated to the work injury. \nNeuropsychological  testing  standing  alone  is  not  sufficient  evidence  of  a  brain \ninjury.  There must be objective evidence of such an injury.  Watson v. Tayco Inc., 79 Ark. \n\nELLIS – H107908 \n \n28 \n \nApp. 250, 86 S.W.3d 18 (2002).  Although Dr. Baskin agreed that the abrasion over the \neye could be an objective finding, he clearly stated there were no objective findings that \na closed head injury was related to the work incident.  The ER report provided for a chief \ncomplaint of a fall with an initial diagnosis of a closed head injury and with an abrasion of \nthe  left  eyebrow  noted.    Later,  the  same  report  mentioned  the  arrival  complaint  was  a \nhand injury and further stated that the claimant denied losing consciousness. The report \nprovided the claimant was oriented during the initial thirty (30) minute observation in the \nemergency room, with steady gait, no acute distress,  and his pupils were of equal size \nwith a brisk left and right pupil reaction, a favorable sign.  The report did mention vomiting \nbut stated that the nausea had resolved and the claimant was neurologically intact.        \nThe claimant seemed like a very likeable young man and the evidence provided \nhe  had  fought  through  some  obstacles  along  the  way.    It  appeared  Dr.  Baskin,  who \nappeared  to  direct  the  treatment  for  the  claimant,  had  a  genuine  concern  for  him  and \nconsequently made numerous referrals and the claimant was seen by numerous health \ncare  providers.    At  points,  the  medical  reports  were  somewhat  confusing  because  it \nappeared  different  types  of  health  care  providers  used  some  medical  and  legal  terms \nsomewhat differently.  One of the issues that the health care providers seemed to face \nwas that there was no baseline to compare the claimant’s actions before and after the \nwork related incident.  The emergency room report provided that the claimant’s nausea \nresolved itself after the claimant had vomited.  A report of an abrasion over the claimant’s \neye by itself is not a sufficient objective finding to provide for a closed head injury when \ninitial reviews of the claimant’s systems were negative, and even the claimant’s pupil eye \nexam in the emergency room showed an equal brisk response of both eyes instead of a \n\nELLIS – H107908 \n \n29 \n \nslow  response.   Follow-up objective  testing was  negative.   Speculation and  conjecture \ncannot substitute for credible evidence. Liaromatis v. Baxter County Regional Hospital, \n95 Ark. App. 296, 236 S.W.3d 524 (2006).  It is also important to note that the claimant’s \ntestimony is never considered uncontroverted.  Lambert v. Gerber Products Co.  14 Ark. \nApp. 88, 684 S.W.2d 842 (1985).  \nAfter weighing the evidence impartially, without giving the benefit of the doubt to \neither party, there is no alternative but to find that the claimant has failed to establish a \ncompensable closed head injury with medical evidence supported by objective findings \nand that, consequently, the claimant is not entitled to additional medical treatment and \nattorney’s fees at this time.  If not already paid, the respondents are ordered to pay the \ncost of the transcript forthwith. \nIT IS SO ORDERED. \n  \n       ___________________________ \n      JAMES D. KENNEDY \n      Administrative Law Judge","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H107908 JESSIE D. ELLIS, EMPLOYEE CLAIMANT v. CITY OF CONWAY, EMPLOYER RESPONDENT ARKANSAS MUNICPAL LEAGUE, WORKERS’ COMPENSATION TRUST RESPONDENT OPINION FILED JANUARY 2, 2024 Hearing before Administrative Law Judge, James D. Kennedy, on the 26 TH day of S...","fetched_at":"2026-05-19T22:57:56.309Z","links":{"html":"/opinions/alj-H107908-2024-01-02","pdf":"https://labor.arkansas.gov/wp-content/uploads/ELLIS_JESSIE_H107908_20240102.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}