{"id":"alj-H200280-2024-06-25","awcc_number":"H200280","decision_date":"2024-06-25","opinion_type":"alj","claimant_name":"Billy Ealy","employer_name":null,"title":"EALY VS. ARKANSAS STATE POLICEAWCC# H200280June 25, 2024","outcome":"denied","outcome_keywords":["denied:1"],"injury_keywords":["hip","back","shoulder","knee","cervical","lumbar","neck","repetitive"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/EALY_BILLY_H200280_20240625.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"EALY_BILLY_H200280_20240625.pdf","text_length":38821,"full_text":"1 \n \nBEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H200280 \n \nBILLY L. EALY, EMPLOYEE      CLAIMANT \n \nVS. \n \nARKANSAS STATE POLICE (COMPANY A), EMPLOYER  RESPONDENT \n \n \nPUBLIC EMPLOYEE CLAIMS DIVISION,  \nCARRIER, TPA        RESPONDENT \n \n \n \nOPINION FILED JUNE 25, 2024 \n \nHearing before Administrative Law Judge, James D. Kennedy, on the 15th day of May \n2024, in Mountain Home, Arkansas. \n \nClaimant is represented by Frederick Spencer, Attorney at Law, Mountain Home, \nArkansas. \n \nRespondents are represented by Charles McLemore, Attorney at Law, Little Rock, \nArkansas. \n \nSTATEMENT OF THE CASE \n A hearing was conducted on the 15th day of May 2024.  At the time of the \nhearing, the parties agreed that the issues were as follows: (1)  Compensability of  \n\n2 \n \ninjuries to the right hip, groin, and lower back as the result of a specific injury and \ngradual onset;  (2) Reasonable and necessary medical treatment for the injuries; (3) \nEntitlement to past due TTD benefits; (4) Disability rating; (5) Attorney fees; (6) with all \nother issues were reserved. \nThe respondents contended the claimant did not sustain compensable injuries \nwhile employed by the Arkansas State Police.  The claimant applied for FMLA leave \nand completed the necessary FMLA paperwork and did not indicate that he had \nsustained any work-related injuries.  \nA Prehearing Order dated July 11th, 2023, provided that the parties stipulated \nthat the Arkansas Workers’ Compensation Commission has jurisdiction of the within \nclaim and an employer/employee/carrier relationship existed on or about July 1\nst\n, 2020, \nwhen the claimant contended that he sustained injuries to his right hip, groin, and lower \nback that was the result of a gradual onset.  Further, the Order provided that the \nemployer/employee/carrier relationship existed until on or about December 31, 2021, \nand that the claimant’s average weekly wage was $1112.36 with a TTD/PPD rate of \n$711.00/$533.00 respectively.  The respondents controverted the claim in its entirety.       \n The Prehearing Order and the claimant’s and respondent’s contentions are all \nset out in their respective responses to the Pre-hearing Questionnaire and made a part \nof the record without objection.  The witnesses were Sergeant Seyfried Lewis; Amie \nEaly, the wife of the claimant; Billy Ealy, the claimant; and Major Stacie Rhoads who \nwas called by the respondents.  From a review of the record as a whole, to include \nmedical reports and other matters properly before the Commission and having had an \nopportunity to observe the testimony and demeanor of the witnesses, the following \n\n3 \n \nfindings of fact and conclusions of law are made in accordance with Ark. Code Ann. 11-\n9-704. \nFINDINGS OF FACT AND CONCLUSSIONS OF LAW \n1.  The Arkansas Workers’ Compensation Commission has jurisdiction over this \nclaim. \n2. That an employer/employee/carrier relationship existed on July 1st, 2020, and \nat all relevant times.   \n3. That the memorandums prepared by Stacie Rhoads are found to be \nadmissible.  \n4. That the claimant has failed to satisfy the required burden of proof to show \nthat he sustained a work-related injury on the specific date of July 1, 2020. \n5. The claimant has also failed to satisfy the required burden of proof to show \nthat he sustained a gradual onset injury to his right hip, groin, and lower back. \n6. That consequently, all other issues are moot. \n7. If not already paid, the respondents are ordered to pay for the cost of the \ntranscript forthwith. \nREVIEW OF TESTIMONY AND EVIDENCE \n The Pre-hearing Order along with the Pre-hearing questionnaires of the parties \nplus a letter addressed to the administrative law judge, were made part of the record \nwithout objection.  The joint exhibit of the claimant and respondent was admitted into \nthe record without objection.  The claimant submitted two exhibits that were admitted \nwithout objection.  The respondents submitted two exhibits and exhibit one which \n\n4 \n \nconsisted of medical was admitted without objection.  Respondent’s Exhibit Two, which \nconsisted of documentary evidence was admitted into evidence, with the exception of \nthe admission of the memorandums prepared by Major Stacie Rhoads, which were \nobjected to, and the matter was taken under advisement at the time of the hearing, and \nthe admissibility will be discussed below. \n Sergeant Seyfried Lewis, who retired on July 1, 2019, as the post sergeant with \nTroop A of the Highway Patrol Division of the Arkansas State Police after almost 35 \nyears, was the first witness.  Sergeant Lewis was the claimant’s supervisor and served \nas the claimant’s post sergeant, working with the claimant in Faulkner County. (Tr. 11, \n12)  He testified that in their line of duty, they carried about 60 pounds of gear, which \nincluded the leather gear, a weapon, vest, taser, and boots, which could get pretty \nheavy throughout the day.  He encouraged guys to come in and take a load off, due to \nthe fact he knew from personal experience that these items could wear you down.  In \nregard to the claimant, he worked ten years for the highway patrol division and then \nwent on to work for the Criminal Investigation Division, hereinafter referred to as the \nCID, as a polygraph examiner. (Tr. 13, 14)  Sergeant Lewis left the highway patrol in \n2019, but prior to that would see the claimant in the hallway and he did notice that he \nwalked a little different.  “Even when we were working highway patrol, I could see a \ndifference in how he was moving or how he was doing things then.”  He even \nrecommended “You might want to look into getting into CID.” (Tr. 15, 16)  He also \nmentioned that a trooper would assist motorists, such as pushing cars off of the \nroadway and sometimes lifting heavy debris out of the roadway. (Tr. 17) \n\n5 \n \n Under cross examination, Sergeant Lewis admitted the claimant never reported a \nworkers’ compensation injury to him and that he was familiar with the process of \nreporting work related injuries.  He also admitted the claimant transferred out of the \nHighway Patrol Division to CID on December 2, 2013, which would have ended the \nperiod where the claimant worked under him, but that he did see him after that.  In \nregard to the gear worn by a trooper, Sergeant Lewis testified he had actually weighed \nit. (Tr. 19 – 21) \n  The second witness called to testify was the claimant’s wife, Amie Ealy.  They \nhad been married 20 years and had gone to grade school through high school together.  \nShe saw him on a daily basis, while the claimant served as a trooper and guessed that \nthe equipment weighed 50 to 55 pounds.  She noticed the claimant was having more \ndifficulty walking and was also having difficulty moving his foot to the gas while driving.  \nHe was having more and more pain while he worked as a trooper and this continued \nwhen he transferred to CID. (Tr. 24 – 26)  He started taking over the counter medication \nsuch as ibuprofen. (Tr. 27)  They became aware the claimant had multiple sclerosis in \nMarch of 2022, after he retired in January of that year.  Even as a polygraph examiner, \nhe had to travel a lot in a car.  She also stated he had three surgeries in regard to his \nright hip. (Tr. 28, 29) \nUnder cross examination, Ms. Ealy admitted she had been married more than 20 \nyears to the claimant and had “noticed him having pains and stuff from the very \nbeginning, and he was having problems early on.”  She went on to clarify that she \nmeant since he started with the State Police, wearing that belt. (Tr. 32)  In regard to the \nmultiple sclerosis diagnosis, she noticed that it was taking him longer to get something \n\n6 \n \nout in regard to his speech prior to that date.  The last time she saw him wearing his belt \nand gear was probably prior to him going to CID.  She was asked if that had been ten \nyears ago, and she responded she was not sure. (Tr. 33, 34)  \nThe claimant was then called to testify.  He was 44 years old at the time of the \nhearing and was with the Arkansas State Police for 18 years and 4 months, with ten of \nthose years as a trooper. He then transferred to CID as a polygraph examiner.  He \nagreed with the statement as to the weight of the gun belt that Sergeant Lewis testified \nto. (Tr. 41, 42)  “With that heavy gun belt, you know, I mean the first time you put it on, I \nmean, it just bears down on your hips and your lower back.  And it’s just a struggle to \nget through the day, but I toughed it out kind of thing.” (Tr. 43)  The claimant also \ntestified that he was not having symptoms of MS prior to his retirement.  He went on to \nstate that “With this right hip, it just catches.  It just gets like locked up.  It locks up on \nme.  It just makes it tough to walk, better then that, even run.  Something that I had to \ndo a lot of times, and it just got so painful that I couldn’t do it anymore.  That’s why I had \nto retire.” (Tr. 44)  He denied asking Dr. Newbern to write a letter for him.  While working \nas an investigator with CID, he would spend a lot of time on his feet, performing search \nwarrants and looking for evidence. (Tr. 45) \nIn regard to his hip surgeries, the first one involved bone removal of two large \npieces, and after that, he received injections.  He was then referred to Dr. Newbern.  He \nfelt that the heaviest item he had to move while working were mattresses, and scooting \nrefrigerators, freezers, or couches.  In regard to the memorandums from Major Stacie \nRhoads, he thought it was the policy of the Arkansas State Police for him to sign them \nto show that he was there, and if he didn’t sign them, he was not there.  Before January \n\n7 \n \n18, 2022, he felt he had not had any conferences with Major Rhoads.  He thought she \ndid ask him about the shooting range because he had trouble getting off the ground. (Tr. \n46 - 49)  He also felt he started suffering the symptoms of multiple sclerosis several \nmonths after the total hip replacement, when he was no longer working for the Arkansas \nstate police.  The claimant had not worked anywhere since leaving the state police.  He \ndid not remember a specific injury. “It was all gradual.” (Tr. 50)  \nUnder cross examination, the claimant testified that while working for the \nhighway patrol, he would get up and put his uniform on along with his belt, and then go \nout on patrol, making traffic stops, and working accidents. (Tr. 52)  He thought he \nworked for Sergeant Lewis in Faulkner County between the years 2006 to 2008 or \n2009. (Tr. 53)  He was sure of the weight of the vest he wore. (Tr. 56)  He thought the \nbelt and gear weighed around 55 pounds. (Tr. 57)  He agreed that he left the Highway \nPatrol on December 2, 2013, to work as a polygraph operator with CID. (Tr. 59)  He also \nagreed that after December 2, 2013, he no longer wore patrolmen’s gear. (Tr. 61)  He \nprobably participated in one search warrant every two weeks. (Tr. 65)  He would go to \nthe firing range about every three months for training.  There was an incident when he \nused the butt of his rifle to get up because his right hip had really given out. (Tr. 69)  He \nalso remembered telling Dr. Bowman, his family doctor, in regard to a report dated \nOctober 16, 2019, about shoulder pain, but stated that he did not know anything about \nthe hip problems.  He remembered being taken off performing the fitness test. (Tr. 70, \n71)   \nThe following questioning then occurred: \n\n8 \n \nQ: “I’ve heard you testify that there was not a specific injury to your hip, that it's \njust a gradual event; is that correct?”   \nA: “Yes, I remember saying that, but I mean, it’s gradual onset with this hip \nbecause of the gun belt”. \nQ.  “Okay.  So, there’s not one particular day.  It’s not the gun range.  It’s not any \nother day.  It’s - -“  \nA.  “No.” \nQ.  “- - over time?” \nA.  “Yeah.  Over time.” \nQ.  “Did you ever report an injury to your hip to work?” \nA.  “No, I did not.” \nQ.  “I was not at your deposition.  Mr. Montgomery took your deposition, and you \ntold him that as well: correct? \nA.  “That’s correct.”  (Tr. 71, 72) \nThe claimant went on to testify that Dr. Newbern performed his hip replacement \nbut denied having a conversation with Dr. Newbern about his job duties or requesting \nthat Dr. Newbern write a letter on his behalf.  He admitted telling Dr. Newbern he was a \nstate trooper.  (Tr. 77) \nOn redirect, the claimant agreed that he had to push cars out of the way in the \npast and also had to do a lot of “heavy stuff” to get things out of a car.  He additionally \nhad to do a lot of sitting and spent a lot of time on his feet while working for the CID. (Tr. \n78 - 80) \n\n9 \n \nOn recross, the claimant denied being trained on the method to file a workers’ \ncompensation claim and denied ever previously filing one.  He admitted that after he left \nthe highway patrol, he went to work for CID, and that Stacey Rhoads was his \nsupervisor.  He also admitted that he had filed for a medical disability retirement, which \nhe was receiving, and he claimed a total hip replacement, but nothing else.  He had \nbeen receiving his medical disability retirement since the date of his retirement. (Tr. 83 - \n86) \nAt this point, the claimant rested, and the respondents called Major Stacie \nRhoads, who testified that she had worked for the Arkansas State Police for 26 years, \nand currently oversaw the Criminal Investigation Division, where the claimant had \nworked, and at one point was his supervisor.  She had known the claimant since 2003, \nwhen he began working for the State Police. (Tr. 89)  She had worked for the highway \npatrol division in the past for three years and consequently was familiar with the vest \nand other equipment since she had worn them.  She went on to state that they had \nrecently tested the duty belt fully adorned with all the equipment and it weighed 15 \npounds and the ballistics vest currently weighed under six, but it had changed over the \nyears. (Tr. 90, 91)  In CID, they don’t wear big duty belts.  She was not aware of the \nclaimant ever reporting a workers’ compensation claim. (Tr. 92)  She admitted her \nconcerns about the claimant’s physical well-being after she had observed him on the \nfiring range.  She did not see him suffer an accident or fall, but he did appear to have \ndifficulty walking, and she observed him having to steady himself with his rifle when he \nfinished firing, and thought he was having hand-eye coordination issues and having \ndifficulty with the magazine exchange drills.  She testified she prepared the report on \n\n10 \n \nMay 24, 2020, three days after the training incident. (Tr. 93 – 96)  In regard to a \nworkers’ compensation poster, she testified there was one in the copy room. (Tr. 97)  \nShe also testified they received the claimant’s resignation letter on November 19, 2021, \nand he retired at the end of 2021.  She prepared a memorandum based on the \nclaimant’s worker’s compensation claim he filed, and the memorandum was dated \nJanuary 18\nth\n, 2022. (Tr. 99) \n       The parties submitted as a joint exhibit the claimant’s deposition where the \nclaimant was asked about an injury that occurred sometime in 2020 and he testified, \n“Well, the thing about it is that I - - the gun belt is sitting heavy on my hips, on my right \nhip, and it just kind of got to where I couldn’t, you know, perform the job correctly, and \nit’s just sitting on my hips and that’s - - that’s the injury.  I mean it just kind of wore, wore \nme out, wore down my hip and that’s all I can think of.”  The claimant stated that the gun \nbelt and the items in it weighed “about 50 pounds.”   “It took probably three or four years \nto notice that my hip couldn’t really take it.”  He couldn’t remember when it started. (Jt. \nEx. 1, P. 18, 19)  He thought that he had transferred to CID maybe in 2014. (Jt. Ex. 1, P. \n22)  He further testified that Lieutenant Stacy Rhoads noticed he was having difficulty \non the range and that it was her idea to send him to the doctor.  Prior to his total hip by \nDr. Gordan Newbern, he had two earlier surgeries by Dr. Jimmy Tucker who attempted \nto repair his hip. (Jt. Ex. 1, P. 27, 28)  Claimant was questioned if he ever told anyone at \nthe State Police prior to his first surgery that his hip problem might be related to the job \nhe had performed over the years, and he responded “No.  I did not.”  He never returned \nto work after the first surgery in December of 2020. (Jt. Ex. 1, P. 30)  The deposition \ncontained two exhibits, with the first one being the Arkansas Form N which stated “The \n\n11 \n \nemployee stated that his right hip started giving him trouble.  The employee stated that \nhis supervisor noticed he was having trouble.”  \n The deposition also included a Report of Injury from “Company Nurse” that \nprovided that the injury occurred to the claimant’s hip at work, and that he could not \nprovide a time or what he was doing at the time of the injury.  \n Claimant submitted the deposition of Dr. David Newbern taken on May 19, 2023, \nwhich was admitted without objection.  Besides the doctor’s Curriculum Vitae, the \ndeposition contained 28 pages of medical records and a medical article.  Dr. Newbern \ntestified that he worked as an orthopedic surgeon, mainly working with hip and knee \nreplacements.   The claimant was first treated by Dr. Jimmy Tucker, and it appeared he \nwas initially seen by Dr. Newbern on June 18\nth\n, 2021, after the two surgeries by Dr. \nTucker.  It was apparent the claimant had a fragment of extra bone that had grown in \nthe front portion of his hip called a heterotopic bone and it was thought that this was \npossibly the source of his pain and Dr. Tucker requested that he evaluate the claimant.  \nAt the time, it appeared that the extra bone could easily be pinching and hitting the \nanterior aspect of his hip joint causing the source of pain, and there was some \ndiscussion of performing an arthroscopic procedure to remove the bone, but after the \ndiscussion, it was decided that maybe the quickest way to get the most amount of \nimprovement would be the route of a hip replacement.  “Since he had shown a tendency \nto form extra or heterotopic bone around his hip, we arranged to have a pretreatment \nwith a low dose radiation treatment to prevent that from happening again.” (Cl. Ex. 1, P. \n8, 9)  “Many times muscle or traumatized tissue will undergo a transformation instead of \nthe staying in the tissue form that it is previously.” (Cl. Ex. 1, P. 10)  The surgery was \n\n12 \n \nperformed on August 9, 2021, and it was determined at the time of the surgery that \nthere was some arthritis in the joint. (Cl. Ex. 1, P. 12, 13)) \n The claimant returned for follow ups and on the October 7, 2021, visit, it was \nnoted that he had a quite abnormal gait.  He was able to stand but only with a very great \neffort.  His leg was shaking and trembling, with profound weakness and difficulty \nambulating noted. (Cl. Ex. 1, P. 16)  An encounter with the claimant also occurred on \nNovember 18\nth\n, 2021.  That report provided that the claimant’s range of internal rotation \nwas zero degrees, with his external rotation being 50 degrees.  His gait was unstable \nwith trembling and weakness, and he ambulated with a cane.  Consequently, a MRI was \nordered and an EMG nerve conduction study by Dr. Kimay was obtained.  The EMG \nwas ordered due to the fact we did not have an understanding or explanation for the \nclaimant’s neurological function.  The EMG by Dr. Kimay showed an abnormal cord \nsignal at the C2/3 disc.  A follow up MRI of the brain and cervical spine was then \nrecommended.  There was suspicion of a demyelinating disease.  The MRI of the \nlumbar spine was performed, and it was remarkable for moderate foraminal stenosis on \nthe right side of L4/5, with no other significant findings. (Cl. Ex. 1, P. 17 – 22) \n In regard to the hip surgery, Dr. Newbern, felt the claimant had recovered to a \npoint.  The claimant was still having more pain than would normally be expected and his \nrecovery from the hip replacement was not as good as normally expected. (Cl. Ex. 1, P. \n23)  Dr. Newburn initially saw the claimant on June 14\nth\n, 2021, two months prior to the \nsurgery on August 9\nth\n, 2021.  Dr. Newbern thought the patient and his wife asked him to \nwrite the “To whom it may concern” letter which is page 22 of the medical exhibit. (Cl. \nEx. 1, P. 26, 27).  He obtained the information about the claimant’s physical job from \n\n13 \n \ntalking with the claimant, who felt the belt with the equipment that he needed to carry, \npressed on his hip.  “I said that, you know, at least more than 50 percent of these stress \nand strains of work had compounded his current disability.”  Dr. Newbern agreed that \nthe information for his “To whom it may concern” letter was provided by the claimant \nand his wife. (Cl. Ex. 1, P. 28 -30)  \n Under cross examination, Dr. Newbern admitted to the importance of history in \nregard to a patient. (Cl. Ex. 1, P. 33)  He opined that “I guess, to kind of dive into that, I \nthink he’s got issues with his hip, and then I think he also has issues with what I think \nthey’ve diagnosed as multiple sclerosis, and that  - -  those two different things are \ncausing trouble.  But, yeah, both of those issues are going to make it harder for him to \ndo day-in/day-out work.” (Cl. Ex. 1. P. 35) “We still don’t know why he’s having such \ntrouble, so it’s - - I think it’s complicated.” (Cl. Ex. 1, P. 36) \n Dr. Newbern was also questioned about the labral tear in regard to the initial \nsurgeries, and he opined a labral tear is a lot of times due to an overuse phenomenon, \nbut can also be from an injury, or both. (Cl. Ex. 1, P. 39, 40) \n  An operative note dated December 2, 2020, by Dr. James Tucker, provided that \nsurgery was performed on the right labrum due to a tearing of the labrum, after 12 \nweeks of conservative care. (Cl. Ex. 2, P. 1, 2)  The claimant returned to Dr. Tucker on \nApril 13, 2021, 6 weeks postop, in regard to the resection of the right hip labral tear.  X-\nrays showed a well-maintained joint space.  Physical therapy continued, and the report \nprovided the claimant would return in 6 weeks. (Cl. Ex. 2, P. 3 – 5)  The claimant again \nreturned to Dr. Tucker for an office visit on May 25, 2021, after a diagnostic arthroscopy \nand open heterotopic ossification resection of the right hip labral tear . The claimant also \n\n14 \n \nreturned to Dr. Tucker on May 26, 2021, and June 15, 2021.  The claimant was still \nhaving issues with the hip with a lot of pain, sometimes going numb throughout the day, \nwhich required him to walk with a crutch.  The report provided the claimant would be \nreferred to Dr. Newbern. (Cl. Ex. 2, P. 9 - 13) \n The claimant was then seen by Physician Assistant, Donna Barron, PA, who \nworked with Dr. Newbern, in regard to his right hip problems.  This visit was 2 weeks \npost op from a total hip replacement and removal of heterotopic bone. (Cl. Ex. 2. P. 14 – \n17)  The claimant again returned on October 7, 2021, October 20, 2021, and November \n16, 2021. The surgery of August 9, 2021, was referred to and Donna Barron was \nconcerned that the claimant was developing nerve palsy, and the claimant was asked to \nstay on his walker. \n The “To Whom it May Concern” letter, By Dr. Newbern provided it was very likely \nthat the stresses of work contributed to the claimant’s loss of ability and function, and he \nopined that he believed it was more than 50% likely that the stress and strains of his \nwork, have compounded if not caused his current disability. (Cl. Ex. 2, P. 22) \n Claimant returned for an office visit on November 18, and November 29, 2021. \nThe November 18, 2021, report provided that an MRI of the lumbar spine and a MRI of \nthe cervical spine should be obtained and that they would proceed with psoas tendon \ninjections for bursitis.  The office visit of November 29, 2021, mentioned the MRI \nreferral. (Cl. Ex. 2, P 23 – 27)  It was also noted that a letter dated September 29, 2022, \nby Dr. Erika Santos Horta, provided that multiple sclerosis affects the central nervous \nsystem and not the bones.  (Cl. Ex. 2, P. 28) \n\n15 \n \n The respondents also submitted medical records consisting of 26 pages, without \nobjection.  The initial medical report by Dr. Gary W. Bowman, dated October 16, 2019, \nprovided that the claimant was suffering acute right shoulder and hip pain that had \nstarted one to four weeks earlier.  Physical therapy was started and Voltaren was \nordered. (Resp. Ex. 1, P. 1 – 3)  The claimant returned to Dr. Bowman on August 7, \n2020, with pain in the joint of the pelvic region and thigh.  An X-ray of the hip provided \nfor degenerative changes of the right hip. (Resp. Ex. 1, P 4 – 6) \n The claimant then presented to the Conway Orthopedic and Sports Medicine \nCenter on August 12, 2020, with groin pain, but the report provided that he did not \nremember a specific injury but stated the pain had gradually increased.  The X-ray \nprovided for a possible right hip labral tear and possible right hip femoral acetabular \nimpingement. (Resp. Ex. 1, P, 7, 8)  An imaging report dated August 17, 2020, by Dr. \nMiles Ritter, provided for a small tear involving the anterior superior labrum and a small \nbony protuberance of the superior lateral femoral head neck junction was also noted. \nThe findings could represent a CAM type femoral acetabular impingement syndrome. \n(Resp. Ex. 1, P. 9, 10)  The claimant then returned to Conway Orthopedic  and Sports \nMedicine on August 19, 2020, and the imaging findings were reviewed and the claimant \nwas referred to Dr. James Tucker.  (Resp. Ex. 1, P. 11, 12) \n The claimant first presented to Dr. Tucker on September 15, 2020, and the report \nprovided there was no specific injury reported but that the claimant presented with right \nhip pain and groin pain. (Resp. Ex. 1, P. 13 – 15)  A HPI/PMH Form with Dr. Newbern \ndated June 21, 2021, provided for right hip pain. (Resp. Ex. 1, P. 16, 17)  The claimant \nthen saw Dr. Newbern on July 1, 2021, and the assessment provided arthritis as a \n\n16 \n \nconsequence of impingement and heterotopic bone formation of the right hip.  (Resp. \nEx. 1, P. 18 – 20)  A medical report from OrthoArkansas dated August 11, 2021, \nprovided that arthritis was a consequence of impingement and heterotopic bone \nformation about the right hip.  The report went on to provide that probably the quickest \nway to recovery was for a hip replacement with the removal of the overhanging bone. \n(Resp. Ex. 1, P. 21, 22)    The claimant was seen by Donna Barron, PA, who works with \nDr. Newbern.  The report provided that a psoas tendon injection was discussed, and the \nclaimant’s gait was observed as he was leaving.  He exhibited right leg fasciculations \nand shaking of the entire right leg.  No right foot slapping was noted but a profound \nweakness and abnormal gait was observed. (Resp. Ex. 1, P. 23 – 26)   \n The respondents also submitted 21 pages of documentary evidence, and an \nobjection to the admissibility of the memorandums prepared by Stacie Rhoads was \nmade by the claimant and this issue is discussed below.  On December 2, 2013, the \nclaimant transferred from the Highway Patrol Division to the Criminal Investigation \nDivision to become a Polygraph Examiner. (Resp. Ex. 2, P. 1)  Work issues were raised \nin regard to the claimant’s actions while employed. (Resp. Ex. 2, P. 2 – 4, and also P. 7, \n8))  A memorandum dated May 24, 2020, by Lt. Stacie Rhoads and addressed to Major \nMark Hollingsworth, provided that the claimant had to use his rifle to steady himself \nwhile getting out of the kneeling position, while at the firing range and that he appeared \nunsteady on his feet. (Resp. Ex. 2, P. 5, 6)  On November 19, 2021, the claimant \nsubmitted a letter for his medical retirement. (Resp. Ex. 2, P. 9) \n\n17 \n \n Claimant’s filing of the Arkansas Form AR-C provided he had sustained a \ngradual onset injury to his right hip, groin, and lower back as a result of his job duties \nand the requirement of wearing a heavy gun and equipment belt. (Resp. Ex. 2, P. 11) \nThe report made by the Company Nurse on July 1, 2020, provided that the right hip \ninjury was work related but the claimant’s actual activities at the time of the accident \nwere unknown.  The report provided that the claimant could not say what he was doing \nat the time of the injury. (Resp. Ex. 2, P. 12 - 14)  In addition, the Form PECD 1, dated \nJanuary 19, 2022, which stated that it was to be completed by the employee, provided \nthat the date of the accident was July 1, 2020, at 10:00 a.m. but the claimant was \nunaware of the location of the accident or what he was doing at the time of the accident. \n(Resp. Ex. 2, P. 17)  The AR – N form also provided that the injury to the right hip \noccurred on July 1, 2020, at 10:00 a.m., and stated that his right hip started giving him \ntrouble and that his supervisor had noticed it. (Resp. Ex. 2, P. 18, 19)  \nDISCUSSION AND ADJUDICATION OF ISSUES \nThe first issue that must be determined is the admissibility of the memorandums \nprepared by Stacie D. Rhoads dated May 24, 2020, July 30, 2019, and January 18, \n2022.  The claimant objected to the admissibility of these documents contending among \nother things that these items were not documents that were kept in the regular course of \nbusiness.  The issue was taken under advisement at the time of the hearing.  The law is \nquite clear that the Workers’ Compensation Commission has broad discretion with \nreference to admission of evidence, and its decision will not be reversed absent a \nshowing of abuse of discretion.  Brown v. Alabama Elec. Co., 60 Ark. App. 138, 959 \nS.W.2d 753 (1998).  The Commission is given a great deal of latitude in evidentiary \n\n18 \n \nmatters, specifically by A.C.A. 11-9-705(a) which provides that the Commission “shall \nnot be bound by technical or statutory rules of evidence or by technical or formal rules \nof procedure.”  Additionally, the Commission is directed to “conduct the hearing in a \nmanner as will best ascertain the right of the parties.”  See A.C.A. 11-9-705(a) and \nClark v. Johnson’s Warehouse Showroom, Inc., 2012 Ark. App. 17, 388 S.W. 3d.  The \ncourts have even gone on to provide that the Commission should be more liberal with \nthe admission of evidence, rather than stringent.  Coleman v. Pro Transp., Inc., 97 Ark. \nApp. 338, 249 s.W.3d 149 (2007).  In the present matter, Ms. Rhoads testified and was \navailable for cross examination.  Based upon the above, the memorandums are found \nto be admissible. \nIn regard to the primary issue of compensability, the claimant has the burden of \nproving by a preponderance of the evidence that he is entitled to compensation benefits \nfor his injuries under the Arkansas Workers’ Compensation Law.  In determining \nwhether the claimant has sustained his burden of proof, the Commission shall weigh the \nevidence impartially, without giving the benefit of the doubt to either party.  Ark. Code \nAnn 11-9-704.  Wade v. Mr. Cavanaugh’s, 298 Ark. 364, 768 S.W. 2d 521 (1989).  \nFurther, the Commission has the duty to translate evidence on all issues before it into \nfindings of fact.  Weldon v. Pierce Brothers Construction Co., 54 Ark. App. 344, 925 \nS.W.2d 179 (1996). \nIn the present matter, the claimant presented to Dr. Bowman on October 16, \n2019, and the medical report provided the claimant suffered from pain in his right \nshoulder and hip which had started one to four weeks earlier.  The claimant again saw \nDr. Bowmen on August 7, 2020, with pain in his pelvic region.  A medical report from \n\n19 \n \nConway Orthopedic and Sports Medicine dated August 12, 2020, provided that the \nclaimant had been suffering groin pain since 2019, but that he did not remember a \nspecific injury.  A MRI dated August 17, 2020, showed a small tear of the anterior \nsuperior labrum of the right hip and a small bony protuberance along the superior lateral \nfemoral neck head.  The first report of record by Dr. Tucker on September 15, 2020, \nprovided that the claimant had suffered right hip pain for over a year but was not aware \nof a specific injury.  It must also be noted that the report from Company Nurse dated \nJanuary 13, 2022, provided that the claimant did not know what he was doing when the \naccident occurred.     \nThe claimant testified that he felt that the gun or equipment belt and the \nequipment he was required to carry pressed on his hip, and the weight of these items \nwere the cause of hip problems over time.  In his deposition, he could not remember \nwhen the hip pain began but stated, “Well, the thing about it is that I - - the gun belt is \nsetting on my hips, on my right hip, and it just got to where I couldn’t, you know, perform \nthe job correctly, and it’s just sitting on my hips, and that’s - - that’s the injury.  I mean it \njust kind of wore, wore me out, wore down my hip and that’s all I can think of.”  He went \non to testify that it probably took 3 or 4 years to notice that his hip couldn’t take it and he \ncouldn’t remember when it started.  Testimony about the actual weight of the gun or \nequipment belt and the equipment carried on it varied between 15 to 60 pounds. \nIt is also noted that testimony provided that the claimant was diagnosed with \nMultiple Sclerosis after the date of his retirement.  Dr. Horta stated in a letter that \nMultiple Sclerosis affects the Central Nervous System and not the bones.  A suspicion \nof a demyelinating disease had been previously discussed after claimant’s EMG.  \n\n20 \n \nAdditionally, it is also noted that Dr. Newbern opined in a letter addressed “To whom it \nmay concern” that “I do believe it is more than 50% that the stress and strains of his \nwork, that is the physical requirements, have compounded, if not caused, his current \ndisability” referring to the physical job and the wearing of the heavy gun and equipment \nbelt. \nThe AR- C Form provided that the claimant had sustained a gradual onset injury \nto his right hip, groin, and lower back, but the PECD – 1 Form provided that the injury \noccurred on July 1, 2020, at 10:00 a.m., and the claimant provided he was unsure of the \nlocation of its occurrence.   The AR – N Form also provided that the claimant stated his \nright hip started giving him trouble and the date was July 1, 2020.  Here, although the \nclaimant at times stated the date of the injury was July 1, 2020, the form provided that \nthe claimant did not remember the location of the injury and he testified that the injury \noccurred over time, as the result of wearing the gun and equipment belt.  The AR - C \nForm stated the claimant sustained a gradual onset injury.  Since the claimant is not \ncontending he suffered a specific injury, he is not required to prove that the injury was \nthe result of an incident that occurred at an identifiable time and place of occurrence. \nSee Mikel v. Engineered Specialty Plastics, 56 Ark. 443, 990 S.W.2d 522 (1997).   \nThe claimant claims that he suffered a gradual onset injury to his right hip, groin, \nand lower back.  A.C.A. 11-9-102(4)(A)(ii) states, in relevant part, that injuries that occur \nover a period of time and are not the result of a specific incident occurring at an \nidentifiable time and place are not compensable, unless they are caused by rapid \nrepetitive motion.  To be awarded benefits for a gradual onset injury, the claimant must \nprove several things: (1) the injury arose out of and in the course of employment; (2) the \n\n21 \n \ninjury caused internal or external physical harm to the body, which required medical \nservices or resulted in death or disability; (3) the injury was caused by rapid repetitive \nmotion; (4) the injury was the major cause of the disability or need for treatment; and (5) \nthe injury was established by objective medical findings.  A.C.A. 11-9-102 (4) (D).  Also \nsee Malone v. Texarkana Public Schools, 333 Ark. 343, 969 S.W. 2d 644 (1998) and \nHapney v. Rheem Mfg. Co. 342 Ark. 11, 26 S.W.3d 777 (2000).  Arkansas courts have \nset out a two-pronged test for such cases as the matter at bar.  The claimant must \nengage in tasks that are repetitive and the repetitive motion must be rapid.  See Malone \nsupra.  Arkansas courts have further determined that as a threshold issue, the tasks \nmust be repetitive or the rapidity issue is not reached.  Certainly, even repetitive tasks \nand rapid work, taken alone, will not satisfy the definition.  Repetitive tasks must be \ncompleted rapidly.  It is also noted that a compensable injury must be established by \nmedical evidence supported by objective findings. A.C.A. 11-9-102 (4) (D).  “Objective \nfindings” are those findings which cannot come under the voluntary control of the \npatient.  A.C.A. 11-9-102 (16) (A) (i)  \nIn the present matter, there is no question that the claimant, while working as a \nhighway patrolman, carried a gun and equipment belt that weighed somewhere \nbetween 15 to nearly 60 pounds, and was employed in a job that that was both \ndangerous and strenuous at times, while protecting and serving the people of Arkansas.  \nHowever, the elements of the claimant’s work, however difficult, and his claim for an \ninjury to his right hip, groin, and back, do not meet the legal standards set forth by the \nArkansas courts for finding that the claimant suffered a gradual onset injury.  Tasks that \nare repetitive must also be completed rapidly and this did not occur in the present \n\n22 \n \nmatter before the Commission.  Further, although there is the letter from Dr. Newbern \nthat opines that the work was over 50% the cause of the claimant’s hip problems, this \nfinding is found to be based primarily upon the statements of the claimant, with no true \nspecific objective findings that the activities of wearing the gun or equipment belt led to \nthe injury of the right hip, groin, and lower back.  It is important to note that the \nclaimant’s testimony is never considered uncontroverted. Lambert v. Gerber Products \nCo.  14 Ark. App. 88, 684 S.W.2d 842 (1985).  Consequently, there is no alternative but \nto find that the claimant has failed to prove by a preponderance of the evidence that he \nsuffered a compensable gradual onset injury. \nBased upon the available evidence in the case at bar, without giving the benefit \nof the doubt to either party, there is no alternative but to find that the claimant has failed \nto satisfy the required burden of proof to show that the claimed injury to the right hip, \ngroin, and lower back, is in fact work related and compensable under the Arkansas \nWorkers’ Compensation Act.  Consequently, all other issues are moot. If not already \npaid, the respondents are ordered to pay the cost of the transcript forthwith. \n \nIT IS SO ORDERED.   \n  \n       ___________________________ \n      JAMES D. KENNEDY \n      Administrative Law Judge","preview":"1 BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H200280 BILLY L. EALY, EMPLOYEE CLAIMANT VS. ARKANSAS STATE POLICE (COMPANY A), EMPLOYER RESPONDENT PUBLIC EMPLOYEE CLAIMS DIVISION, CARRIER, TPA RESPONDENT OPINION FILED JUNE 25, 2024 Hearing before Administrative Law Judge, James D. Kennedy, on the 15th...","fetched_at":"2026-05-19T22:53:11.415Z","links":{"html":"/opinions/alj-H200280-2024-06-25","pdf":"https://labor.arkansas.gov/wp-content/uploads/EALY_BILLY_H200280_20240625.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}