{"id":"alj-H109799-2025-10-09","awcc_number":"H109799","decision_date":"2025-10-09","opinion_type":"alj","claimant_name":"Gina Sallee","employer_name":"Universal Health Services Inc","title":"SALLEE VS. UNIVERSAL HEALTH SERVICES INC. AWCC# H109799 October 09, 2025","outcome":"granted","outcome_keywords":["granted:3"],"injury_keywords":["shoulder","neck","knee","cervical"],"pdf_url":"https://www.labor.arkansas.gov/wp-content/uploads/SALLEE_GINA_H109799_20251009.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"SALLEE_GINA_H109799_20251009.pdf","text_length":12915,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO. H109799 \nGINA SALLEE, EMPLOYEE CLAIMANT \n \nUNIVERSAL HEALTH SERVICES INC., EMPLOYER RESPONDENT \n \nSEDGWICK CLAIMS MANAGEMENT SERVICES INC., CARRIER/TPA RESPONDENT \n \n \n OPINION FILED OCTOBER 9, 2025 \n \n \nHearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Fort Smith, Sebastian \nCounty, Arkansas. \n \nClaimant represented by EVELYN E. BROOKS, Attorney,  Fayetteville, Arkansas. \n \nRespondents represented by KAREN H. MCKINNEY, Attorney,  Little Rock, Arkansas. \n \n \n STATEMENT OF THE CASE \n  \n On  July 14, 2025, the above captioned claim came on for a hearing at Fort Smith, Arkansas. \nA pre-hearing conference was conducted on April 24, 2025, and a pre-hearing order was filed on that \nsame date. A copy of the pre-hearing order has been marked as Commission’s Exhibit #1 and made \na part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n1.    The Arkansas Workers’ Compensation Commission has jurisdiction of this claim.  \n2.   The employee/employer/carrier relationship existed on December 7, 2021. \n3.   Claimant sustained a compensable injury on December 7, 2021.  \nBy agreement of the parties, the issues to be litigated and resolved at the forthcoming hearing \nwere limited to the following: \n1.  Whether claimant is entitled to temporary total disability benefits for her left shoulder injury \nfrom March 14, 2024, to September 11, 2024.  \n\nSallee-H109799 \n2 \n \n \n2.  Attorney’s fee. \nAll other issues are reserved by the parties. \nThe claimant contends that “She is entitled to temporary total disability after her left shoulder \nsurgery by Dr. Dougherty in March of 2024. Claimant reserves all other issues.” \nThe respondents contend that “All benefits related to her left shoulder injury have been paid.”   \n           From a review of the entire record including medical reports, documents, and other matters \nproperly before the Commission, and having had an opportunity to hear the testimony of the claimant \nand  to  observe  her  demeanor,  the  following  findings  of  fact  and  conclusions  of  law  are  made  in \naccordance with A.C.A. §11-9-704: \n \n  FINDINGS OF FACT & CONCLUSIONS OF LAW \n \n 1.   The stipulations agreed to by the parties at a pre-hearing conference conducted on April \n24, 2025, and contained in a pre-hearing order filed on that same date are hereby accepted as fact. \n 2.  Claimant has met her burden of proving by a preponderance of the evidence that she is \nentitled to temporary total disability from March 4, 2024, through September 11, 2024.  \n \n FACTUAL BACKGROUND \n This is the third time I have heard this case. In an Opinion that was issued on November 3, \n2022,  I found that claimant failed to prove that she suffered a compensable injury on December 7, \n2021, as she did not provide convincing evidence that she was acting in the course of her employment \nat  the  time  of  the  accident.  On  June  9,  2023,  the  Full  Commission  reversed  that  decision,  finding \nclaimant did prove by the preponderance of the evidence that she was acting within the course of her \nemployment duties with the respondent on December 7, 2021, when she had an automobile accident. \nThe Full Commission then found that claimant proved she suffered compensable injuries to her neck \n\nSallee-H109799 \n3 \n \n \nand left knee. All other issues were reserved. That decision was not appealed to the Arkansas Court \nof Appeals and therefore is res judicata on the issue of whether claimant suffered a compensable injury \non December 7, 2021.  \n The second hearing was held on April 10, 2024, with an opinion issued on May 16, 2024, in \nwhich I found claimant proved by a preponderance of the evidence that her left shoulder injury was \ncompensable, entitling her medical benefits for that injury. In March 2024, claimant had undergone a \nsubacromial decompression with biceps tenotomy and distal clavicle co-plane procedure the month \nbefore  that hearing  and was  still  being  treated  for  it.  Claimant  did  not  seek  any  temporary  total \ndisability (TTD) benefits for her left shoulder injury at the April 2024 hearing, reserving that issue. \nThat decision was not appealed to the Full Commission and therefore is res judicata on the issue of \nwhether claimant suffered a compensable left shoulder injury on December 7, 2021.  \n The  above  recitation  of  the  issues  and  contentions  of  the  parties  reflects  how  the  parties \namended  or  clarified  their  respective  positions  before  the  hearing. At  the  hearing,  respondent \nrequested  that  the transcripts  and exhibits  from  the  prior  hearings  be  included in  the  present \nproceeding. Claimant objected because respondent had not identified those records prior to trial as \npotential  exhibits  and  did  not review  them  to  prepare  for  this  hearing. I  took  the  request  under \nadvisement, and after reviewing the prehearing order, I note that the parties were to identify exhibits \nat least seven days before the hearing and provide them to opposing counsel. While I believe the better \npractice  would  be  to  advise  opposing  counsel  if  records  from  a  prior  hearing  were  going  to  be \nreferenced at the present hearing\n1\n, the requirement to provide them to opposing counsel presupposes \nthat  counsel  did  not  already  have  those  records. Over claimant’s objection, I will consider the \n \n1\n The best practice would have been for me to inquire of the parties during the prehearing conference if either wanted \nthe previous testimony and exhibits considered when determining the issue before me, but I failed to do so.  \n\nSallee-H109799 \n4 \n \n \ntestimony  and  exhibits  from  the  previous  hearing  that  are  germane  to  the  issue  before  me  in  this \nhearing.  \nHEARING TESTIMONY \n \n \n Claimant was the only witness to testify at this hearing. At the April 10, 2024, hearing in this \nmatter, claimant had already had surgery on her left shoulder and pursuant to the Court’s Order of \nMay  16, 2024, that  surgery  was deemed  necessary  treatment  for  that  injury. Claimant  testified  that \nfollowing the  surgery  on March 14,  2024,  she  received  physical  therapy,  pain  medication,  and  two \ncortisone shots. She said after the second cortisone injection, her left shoulder pain subsided. Claimant \ntestified between March 14, 2024, and September 11, 2024, she did not work because of the pain she \nwas having from her shoulder. \n On cross-examination, claimant said that the pain in her shoulder made it difficult to type as \nshe could not lift her arm high enough to do so without excruciating pain; her computer was on a \ntable. She was able to do some cooking with her right hand.  \n \nREVIEW OF THE MEDICAL EXHIBITS \n \n The only exhibits provided by claimant were 54 pages of medical records, most of which were \nthose of Dr. Dougherty from January 24, 2024, through September 12, 2024. Respondents submitted \nno additional exhibits.  \n Dr. Dougherty’s operative report of March 14, 2024, shows  he  performed a  subacromial \ndecompression  with  biceps  tenotomy  and  distal  clavicle  co-plane  procedure. On  March  19,  2024, \nMontye Crawford, assistant to Dr. Dougherty, said claimant could go without her sling and try to use \nher  arm  normally,  but  not  to  lift over five pounds  with  it. Dr.  Dougherty referred claimant to a \ntherapist for a home exercise program (HEP) on March 27, 2024.  \n\nSallee-H109799 \n5 \n \n \n On June 9, 2024, Dr. Dougherty saw claimant and gave her a cortisone injection in her left \nshoulder. She was told to limit her activities for the next 24-48 hours, after which she was to continue \nthe  HEP  and  have  a weight  restriction  of  no  more  than  20  pounds. Claimant  returned  to  Dr. \nDougherty on July 31, 2024, at which time the weight restriction was raised to 30 pounds. Claimant \nwas still complaining of pain in her left shoulder when she saw Dr. Dougherty on September 11, 2024. \nHe scheduled claimant for another MRI on her shoulder and reduced her lifting restrictions to five \npounds. \n Respondents requested that the records and testimony of Dr. James Blankenship that were \nintroduced at the previous hearing be reviewed. In doing so, I saw Dr. Blankenship discussed cervical \nspine surgery with claimant, and there are references to claimant having bilateral radicular pain in her \narms. However, Dr.  Blankenship  did  not  treat  claimant  for the  injury  for  which  Dr.  Dougherty \nperformed  surgery. I  found  those records  from  the  previous  hearing are  inapplicable  to  the  issue \nbefore me, as claimant is not seeking any benefits in this action that relate to her cervical spine injury.  \n \nADJUDICATION \n \n As set forth above, the only issue before me is claimant’s request for temporary total disability \n(TTD) benefits from March 14, 2024, through September 11, 2024. At the time of the previous hearing \n(April 10, 2024), she had already undergone a subacromial decompression with biceps tenotomy and \ndistal clavicle co-plane procedure that hearing and was still being treated for it. Claimant did not seek \nany TTD benefits for her left shoulder injury at the April 2024 hearing, reserving that issue for this \nhearing.  \n An injury to a left shoulder is an unscheduled injury. To be entitled to TTD benefits for an \nunscheduled injury, a claimant must prove by a preponderance of the evidence that she remains within \nher healing period and suffers a total incapacity to earn wages. Allen Canning Co. v. Woodruff, 92 Ark. \n\nSallee-H109799 \n6 \n \n \nApp. 237, 212 S.W.3d 25 (2005). Claimant proved that she remained in her healing period from March \n4, 2025, through September 11, 2024; Dr. Dougherty was still treating her post-surgery. The question \nthen is whether she proved she suffered the necessary incapacity to earn wages.  \n From  March  4,  2024,  through  June  5,  2024, I  have  no  question  that  claimant qualified  for \nTTD. The  period  from  June  5,  2024,  through September  11,  2024,  is  not  as  clear,  because  Dr. \nDougherty released her with weight restrictions of twenty and then thirty pounds. Claimant said it was \ntoo painful to type or use the arm opening the refrigerator. However, Dr. Dougherty did give her an \ninjection for bursitis on June 5, 2024, which would be consistent with claimant’s description of her \nsymptoms. I was not provided with the record of the second injection she was given, which from the \ntestimony was  after  she  had  an  MRI  on  October 2,  2024,  but claimant testified that  the  second \ninjection relieved the pain she was having in the surgical area.  \n In Farmers Coop. v. Biles, 77 Ark. App. 1, 69 S.W.3d 899 (2002), the Arkansas Court of Appeals \nheld: \"If, during the period while the body is healing, the employee is unable to perform remunerative \nlabor with reasonable consistency and without pain and discomfort, his temporary disability is deemed \ntotal.\" In the first two hearings, I found many instances in which I did not think claimant was a credible \nwitness, but when I view her testimony in this hearing with the records from Dr. Dougherty, he did \nnot record that she was exaggerating but instead treated her with a cortisone injection. Based on her \ntestimony and the medical records, I find claimant has proven by a preponderance of the evidence \nthat she is unable to work without pain and discomfort and is therefore entitled to TTD from March \n4, 2024, until September 11, 2024.\n2\n  \n \n \n2\n Claimant submitted a “return to work/school” note from Dr. Dougherty dated September 12, 2024, that contradicted \nhis 30-pound lifting restriction from the day before, stating that claimant was to lift no more than 5 pounds with her \nupper extremities. As Dr. Dougherty was not treating claimant’s right arm, it may be that he simply misspoke with \nthe plural reference, but regardless, that note was issued after the relevant dates of the scope of this hearing.  \n\nSallee-H109799 \n7 \n \n \nORDER \n \n Respondents  are directed  to  pay  benefits  in  accordance  with  the  findings  of  fact  set  forth \nherein this Opinion. \nAll accrued sums shall be paid in lump sum without discount, and this award shall earn interest \nat the legal rate until paid, pursuant to Ark. Code Ann. § 11-9-809. 3 \nPursuant to Ark. Code Ann. § 11-9-715, the claimant's attorney is entitled to a 25% attorney's \nfee on the indemnity benefits awarded herein. This fee is to be paid one half by the carrier and one \nhalf by the claimant. \nThe respondent shall pay the court reporter's fee in the amount of $ 460.50. \nAll issues not addressed herein are expressly reserved under the Act. \n \n IT IS SO ORDERED. \n                                                                                              \n_______     \n JOSEPH C. SELF \nADMINISTRATIVE LAW JUDGE","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H109799 GINA SALLEE, EMPLOYEE CLAIMANT UNIVERSAL HEALTH SERVICES INC., EMPLOYER RESPONDENT SEDGWICK CLAIMS MANAGEMENT SERVICES INC., CARRIER/TPA RESPONDENT OPINION FILED OCTOBER 9, 2025 Hearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Fort Smith, S...","fetched_at":"2026-05-19T22:35:23.883Z","links":{"html":"/opinions/alj-H109799-2025-10-09","pdf":"https://www.labor.arkansas.gov/wp-content/uploads/SALLEE_GINA_H109799_20251009.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}