{"id":"alj-H202345-2023-03-09","awcc_number":"H202345","decision_date":"2023-03-09","opinion_type":"alj","claimant_name":"Johnw Sears","employer_name":"Duke Manufacturing Company","title":"SEARS VS. DUKE MANUFACTURING COMPANY AWCC# H202345 MARCH 9, 2023","outcome":"granted","outcome_keywords":["granted:5","denied:2"],"injury_keywords":["ankle","fracture","back","sprain"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/SEARS_JOHNW_H202345_20230309.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"SEARS_JOHNW_H202345_20230309.pdf","text_length":24576,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO. H202345 \n \nJOHN W. SEARS, Employee                                        CLAIMANT \n \nDUKE MANUFACTURING COMPANY, Employer                                       RESPONDENT \n \nCNA INSURANCE COMPANY, Carrier                                                           RESPONDENT \n \n \n OPINION FILED MARCH 9, 2023 \n \nHearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Fort Smith, Sebastian \nCounty, Arkansas. \n \nClaimant represented by JARID M. KINDER, Attorney, Fayetteville, Arkansas. \n \nRespondents represented by TODD WOOTEN, Attorney, Little Rock, Arkansas. \n \n \n STATEMENT OF THE CASE \n  \n On  December  13,  2022,  the  above  captioned  claim  came  on  for  hearing  at  Fort  Smith, \nArkansas.  A pre-hearing conference was conducted on August 4, 2022, and a pre-hearing order was \nfiled on that same date.  A copy of the pre-hearing order has been marked as Commission’s Exhibit \n#1 and made a part of the record without objection. \n At the hearing, the parties agreed to the following stipulations: \n 1.   The Arkansas Workers’ Compensation Commission has jurisdiction of this claim. \n 2.   The employee/employer/carrier relationship existed on October 25, 2021. \n 3.   The respondents have controverted the claim in its entirety from November 1, 2021. \n 4.   Claimant’s compensation rate for temporary total disability benefits is $736 per week. \n At the hearing, the parties agreed to litigate the following issues: \n1.  Whether claimant sustained a compensable injury on October 25, 2021. \n2. Whether claimant is entitled to medical benefits. \n\nSears-H202345 \n2 \n \n 3. Whether claimant is entitled to temporary total disability benefits. \n 4. Attorney fees. \n The claimant contends that: \n“1. The claimant, John Sears, sustained a compensable lower extremity injury on October \n25, 2021 while working for Duke Manufacturing in Illinois. \n2. Despite  objective  evidence  of  injury,  the  respondents  denied  compensability  of  the \nclaimant’s injury. \n3. The claimant contends that he is owed medical benefits and temporary total disability \nbenefits from October 25, 2021 to a date yet to be determined. \n4. Due to the controversion of entitled benefits, the respondents are obligated to pay one \nhalf of the claimant’s attorney’s fees. \nThe respondents contend that: \n“a. Respondents contend that additional medical treatment is not reasonable or necessary \nand should be denied. \nb. Respondents contend that all appropriate benefits have been paid. \n c. Claimant  initially  refused  medical  treatment  for  the  alleged  injury  in  Illinois.  Upon \nreturn  to  Arkansas,  claimant  presented  for  one  visit  to  the  doctor  at  the  urgent  care  clinic  on \nNovember  1,  2021.  An  x-ray  of  his  right  ankle  revealed  no  fractures  or  dislocations.  Talar  dome \npreserved.  Hindfoot  degenerative  changes.  Calcaneal  enthesophyte  at  the  insertion  of  the  Achilles \ntendon. The impression of Dr. Urban was no ankle fracture or dislocation. Respondent Duke paid for \nthe one authorized visit and put claimant on light duty after the doctor determined that nothing was \nbroken or torn, and that claimant was fit to continue work. Claimant did not call, return to work, and \nsubsequently abandoned his job. Accordingly, claimant’s employment was terminated on November \n\nSears-H202345 \n3 \n \n15, 2021.”   \n From  a  review  of  the  entire  record,  including  medical  reports,  depositions  and  documents \nproperly  before  the  Commission,  and  having  had  an  opportunity  to  hear  the  testimony  of  the \nwitnesses and to observe their demeanor, the following findings of fact and conclusions of law are \nmade in accordance with A.C.A. §11-9-704: \n  FINDINGS OF FACT & CONCLUSIONS OF LAW \n \n1. The stipulations agreed to by the parties at a pre-hearing conference conducted on August \n4, 2022 and contained in a pre-hearing order filed that same date, as well as the stipulations \nmade at the hearing, are hereby accepted as fact. \n2.  Claimant has met his burden of proof by a preponderance of the evidence that he suffered \na compensable injury on October 25, 2021, to his right lower extremity. \n3. Claimant  has  met  his  burden  of  proof  by  a  preponderance  of  the  evidence  that  he  is \nentitled to medical benefits for his right lower extremity injury that occurred on October \n25, 2021. \n4. Claimant has met his burden of proof by a preponderance of evidence that he is entitled \nto  temporary  total  disability  benefits  for  two  periods:    November  16,  2021,  through \nDecember 31, 2021, and again from May 18, 2022, through July 27, 2022. \n5. Claimant failed to meet his burden of proof by a preponderance of the evidence that he is \nentitled  to  temporary  total  disability  benefits  from  September 15, 2022,  to  a  date  to  be \ndetermined.  \n6. Respondent  has  controverted  claimant's  entitlement  to  all  benefits  after  November  1, \n2021. \n \n\nSears-H202345 \n4 \n \n \n \n FACTUAL BACKGROUND \n Prior to the hearing, claimant specified the periods of temporary total disability payments he \nwas  seeking  was  from  November  15,  2021  through  December  1,  2021;  then  May  1, 2022  through \nAugust 18, 2022; and from September 13, 2022 to a date to be determined.  The evidence revealed \nthat the second of those dates should have ended on December 1, 2021,  and claimant amended his \nclaim during the hearing without objection.   \n Claimant  made  a  motion  to  exclude  portions  of  the  background  check  performed  by \nPublicDataCheck  as  unduly  prejudicial  because  it  contained  a  criminal  background  check.    After \nhearing the testimony at the hearing, I overruled that motion, and those records were admitted as part \nof the basis for Duke terminating claimant’s employment.   \nHEARING TESTIMONY \n Claimant said that he had worked for respondent Duke Manufacturing (hereinafter “Duke”) \nfor about 90 days when he was injured on October 25, 2021. He testified that he injured his ankle \nwhile working for Duke in the state of Illinois but did not seek medical attention until he returned to \nArkansas the next week. Duke sent him to Baptist Urgent Care in Fort Smith. The doctor or nurse \npractitioner at that clinic took an x-ray, and according to claimant, he was put on light duty with no \nheavy lifting over twenty-five pounds, and was told to keep the ankle elevated. Claimant believed that \nthe doctor saw a fracture on the x-ray. Claimant was told by the doctor to follow up with his primary \ncare physician, which he did after he was terminated from Duke. \n Claimant recounted his course of treatment which included physical therapy and eventually \nsurgery on his ankle. Claimant said the surgery helped a little bit but did not completely remedy his \nankle  issues.  Claimant  developed  an  infection  at  the  surgical  site  and  was  hospitalized  to  treat  the \ninfection. At the time of the hearing, claimant said his ankle was still giving him problems and that he \n\nSears-H202345 \n5 \n \n \nwas still under the doctor’s treatment for that injury. \n Claimant  was  terminated  from  Duke  and  his  understanding  of  why  he  was  terminated  was \nbecause  he  had  a  criminal  history  and  because  of an  issue  regarding  not  calling  or  showing  up  for \nwork.\n1\n   \n Claimant testified that he went back to work on December 1, 2021 (later corrected to January \n1, 2022) at Booneville Housing Authority doing light maintenance. He was mostly sitting in a chair \npainting in apartments and doing general maintenance. His employer accommodated him having to \ntake off frequently because his ankle was swollen. Claimant stopped working at Booneville Housing \nAuthority on April 28, 2022 and was off work through August 18, 2022. At that time, he testified his \ndoctor gave him permission to try to go back to work. Claimant worked for Hudson Excavation from \nAugust 19, 2022 through September 13, 2022, but that work was extremely hard on his ankle. Claimant \ntestified that other than when he attempted to work, he was under doctor’s restrictions (the doctor’s \nrestrictions will be discussed below). Claimant said that as of the day of the hearing, additional surgery \nwas an option. He had undergone one round of steroid shots and the doctor wanted to try another. \nHe said his ankle on the date of the hearing was “sore, very, and it swells”. Claimant said he had some \nmedications for the pain but took them only when he really had to have them. \n On cross-examination, claimant was shown the x-ray report from his initial visit to a physician \nafter returning to Arkansas and saw the portion of the report that said he had no fracture.  Claimant \ntestified that he had a motorcycle accident a week after the surgery on his foot when he lost control \nin gravel and cow manure. He said he laid the bike over on the left side and did not have any injuries \nto his right ankle in that accident. Claimant was asked about filing a Form N and said he didn’t know \n \n1\n While there was much testimony about the reason for claimant’s termination, it is not relevant to the issues before \nme. As this claim involves a scheduled injury, a claimant who is terminated by the employer is not precluded from \ndisability benefits under A.C.A. § 11-9-526; Packers Sanitation Service v. Quintanilla 2017 Ark. App. 213.  \n\nSears-H202345 \n6 \n \n \nwhat that was.  He said he had never been given such a form.   \n Respondent  called  Russell  Swint,  who  is  the  executive  director  of  the  Booneville  Housing \nAuthority. Mr. Swint is responsible for the supervision of the employees of the Housing Authority. \nHis records show that claimant started working for the  Housing Authority on January 1, 2022 and \nworked until April 28, 2022. Claimant was making $12.00  an hour until the pay period of April 14, \n2022, at which time his rate of pay was $14.00 per hour. Claimant averaged thirty-two hours a week \nwhile employed with the housing authority.  \n On cross-examination, Mr. Swint said claimant did miss work periodically, but claimant was \npart-time and worked when he could. His duties included cleaning apartments, painting, and the like. \nMr. Swint was aware that claimant had a foot injury but had no knowledge of claimant struggling while \nworking for the Booneville Housing Authority.  \n On questions from the court, Mr. Swint said claimant was able to come and go as he needed \nto, and some weeks he was able to work more hours than others based on what needed to be done to \nmaintain a unit or ready an apartment for a new occupant.  \n Respondents   next   called   Kyle   Spoon,   who   was   the   project   coordinator   for   Duke \nManufacturing. Mr. Spoon was present at the job site when Mr. Sears was injured but did not see the \ninjury happen. He testified that claimant was offered medical care on the day of the injury, but claimant \nbelieved he could “walk it off”. He testified claimant had again refused medical treatment the next \nday. The following day, the crew working in Illinois started back to Fort Smith.  Upon the return to \nArkansas,  claimant  was  sent  to  an  urgent  care  facility  to  have  x-rays  done  on  his  ankle.  It  was  Mr. \nSpoon’s understanding that claimant was diagnosed with an ankle sprain, placed in a walking boot, \nand  placed  on  light  duty  for  two  weeks.    According  to  Mr.  Spoon,  Duke  accepted  and  paid  the \nexpenses for that November 1, 2021 visit to the doctor’s office. He said claimant was placed on light \n\nSears-H202345 \n7 \n \n \nduty starting November 2, 2021.  \n On cross-examination, Mr. Spoon stated that he was working the same shift with the claimant \nbut did not see the injury. He did not have any evidence either way as to whether claimant had fallen \nat work as he said.  \n Respondent submitted the deposition of Dr. Derek Urban who was the radiologist that read \nthe x-ray that was taken of claimant’s ankle on November 1. Dr. Urban verified that his report showed \nno acute fractures or dislocation. He saw that the talar dome was preserved. \n On cross-examination, Dr. Urban agreed that two radiologists can look at the same x-ray and \ncome up with two different conclusions. Dr. Urban agreed that he did not treat patients and that it \nwas up to the clinician to determine the proper course of treatment based on the information that Dr. \nUrban gave them. He agreed an MRI was generally a better diagnostic tool than an x-ray. He stated it \nwas true that a patient can have issues that don’t show up in an x-ray but do later show up in an MRI. \nHe said that ligament tears don’t show up on x-rays. \n Overall, the testimony of the witnesses at the hearing and appearing through deposition were \ncredible.  Claimant maintained that he had been told he had fractures in his ankle, and while such are \nnot recorded in the medical records, I did not feel claimant was trying to deceive me; rather, I think \nhe was simply wrong about the nature of his injury.  There was no testimony on the main issues in \nthis case which required me to determine which party was truthful or better informed. \nREVIEW OF THE EXHIBITS \n \n According  to  his  testimony,  claimant  was  first  seen  at  an  urgent  care  facility  in  Fort  Smith. \nWhile there is no record from the attending physician or nurse, a radiology report was submitted from \nthe examination on November 1, 2021. The report from Dr. Derek Urban reads as follows: \nFindings: ankle: AP, oblique, lateral views of the right ankle. No prior \nstudies. No fracture or dislocation. Talar dome preserved. Hind foot \n\nSears-H202345 \n8 \n \n \ndegenerative  changes.  Calcaneal  enthesophyte  at  the  insertion  of  the \nAchilles Tendon.  \n \nImpression: No ankle fracture or dislocation. \n \n The next reports were from River Valley Primary Care Services where claimant was seen by \nDr. Michael Patrick Fitzgerald on December 7, 2021. Dr. Fitzgerald had an initial assessment of “ankle \nimpingement syndrome, right.” Dr. Fitzgerald referred claimant to an orthopedic doctor, but claimant \nwas  next  seen  by  a  podiatrist,  Dr.  Spencer  Mortensen.  Dr.  Mortensen  ordered  an  MRI  which  was \nperformed  on  January  20,  2022.  The  impression  of  the  MRI  was “no  acute  osseous  abnormality. \nChronic tear of the interior talofibular ligament.” \n Following the MRI, Dr. Mortensen ordered a course of physical therapy for claimant which \nwas  unsuccessful.  On  May  18,  2022,  Dr.  Mortensen  performed  surgery,  with  this  post-operative \ndiagnosis: \n 1.  Chronic lateral ankle instability with torn ATFL right ankle. \n 2.  Longitudinal tear of the peroneus longus tendon right ankle. \n 3.  Tenosynovitis of the peroneus brevis tendon right ankle. \n 4.  Plantar fasciitis right foot.  \n \n Claimant developed an infection at the surgical wound site which was treated by a course of \nantibiotics. Dr. Mortensen released claimant to return to work with full activities without restrictions \non July 26, 2022. \n Respondents  submitted  several  non-medical exhibits, including its responses to claimant’s \ninterrogatories, the deposition of claimant, as well as the deposition of Dr. Derek Urban. Respondent’s \nExhibit  #9  was Duke’s employment file for claimant.  Page  twenty-five  of  that  exhibit  has  a  hand-\nwritten note that indicates claimant was terminated for “No cause/no  show  and  an  unsatisfactory \nback-ground check showing multiple felonies which goes against company policy.” \n \n \n\nSears-H202345 \n9 \n \n \nADJUDICATION \n \n The issues in this case as set out above require a determination as to whether claimant proved \nhe suffered a compensable injury on or about October 25, 2021, and if so, is he entitled to medical \nbenefits and temporary total disability.   \n1. Did claimant suffer a compensable injury on or about October 25, 2021?      \nIn order for a claimant to meet his burden of proof to receive benefits, he must show that: (1) \nan injury occurred that arose out of and in the course of his employment; (2) the injury caused internal \nor external harm to the body that required medical services or resulted in disability or death; (3) the \ninjury  is  established  by  medical  evidence  supported  by  objective  findings,  which  are  those \nfindings  which cannot come under the voluntary control of the patient; and (4) the injury was caused \nby a specific incident and is identifiable by time and place of occurrence.  Mikel v. Engineered Specialty \nPlastics, 56 Ark. App. 126, 938 S.W.2d 876 (1997) \nI find claimant sufficiently proved all four elements, as claimant provided credible testimony \nabout when and where the injury took place to his right lower extremity, and such occurred while he \nwas working out of state for Duke. He refrained from seeking medical attention until he returned to \nArkansas  a  few  days  later.   While  the  x-rays taken on November 1, 2021 didn’t show any broken \nbones, the radiologist that read the films said an x-ray would not detect ligament damage.   The MRI \ntaken  on  January  20,  2022,  revealed  what  I  believe  had  been  there  all  along--a  torn  ATFL—thus \nproviding the objective findings of harm that required medical services.  While nothing was submitted \nfrom the Urgent Care visit of November 1, 2021 beyond the radiologist report, both claimant and Mr. \nSpoon testified that he was put on light duty after that visit.  While claimant believed he had a bone \nfracture, Mr. Spoon was under the impression that claimant had an ankle sprain; either way, the parties \nagreed that the ankle injury would affect claimant’s ability to work.   When considering all the evidence, \n\nSears-H202345 \n10 \n \n \nI am satisfied that claimant suffered a compensable injury to his right lower extremity on October 25, \n2021.    \n2.   Is claimant entitled to medical benefits? \nA  claimant  has  the  burden  of  proving  by  a  preponderance  of  the  evidence  that  medical \ntreatment is reasonable and necessary. Goyne v. Crabtree Contracting Company, 2009 Ark. App. 200, 301 \nS.W. 3d 16. The treatment by Dr. Fitzgerald and Dr. Mortensen appears to be both reasonable and \nnecessary for the injury to claimant’s right lower extremity.   \nAt the conclusion of the hearing, respondent raised a lack of notice for all treatment after the \ninitial visit to Urgent Care on November 1, 2021.  After I pointed out lack of notice was not raised in \nthe prehearing order, respondent moved to amend its pleadings to include that defense.  I denied the \nmotion at the time as untimely.  Upon further reflection and review, I reaffirm that ruling, but believe \nit was correct on the merits of the motion as well as on its timing.\n2\n  Mr. Spoon testified that claimant \nreported the injury to his employer, and the employer paid for a doctor’s visit.  \"The employee shall \nreport the injury to the employer on a form prescribed or approved by the Workers' Compensation \nCommission,\" and the employer is not responsible for benefits related to the injury \"prior to receipt \nof the employee's report of injury.\" Ark. Code Ann. § 11-9-701(a)(1). \"Failure to give the notice shall \nnot  bar  a  claim,  however,  if  the  employer  had  knowledge  of  the  injury.\"  Ark.  Code  Ann.  §  11-9-\n701(b)(1)(A). It is notice to the employer, not the insurance carrier, that is required, Baxter v. Baxter, \n2012 Ark. App. 251, 413 S.W.3d 561. Under the facts of this case, the employer was notified not later \nthan November 1, 2021, when Duke sent claimant to Urgent Care.   The way Duke handled this by \n \n2\n Ark. Code Ann. §11-9-701 (b)(2) states “Objection to failure to give notice must be made at or before the first hearing \non the claim.” A motion regarding the lack of notice made while the parties were giving closing arguments is  may \ntechnically be “at the first hearing.”  I found no cases decided by the Full Commission or the appellate courts on this \npoint, but I believe fundamental fairness dictates that a claimant needs to be made aware that lack of notice is being \nraised as a defense before the testimony has closed.   \n\nSears-H202345 \n11 \n \n \npaying the doctor’s visit itself seems to have had the effect of not informing its carrier about this claim; \nthat,  however,  is  a  matter  between  the  two  respondents  and  does  not  defeat claimant’s request for \npayment of his medical bills. \nClaimant submitted records that mentioned many physical and mental conditions that have \nnothing  to  do  with  his  ankle  injury,  and  respondent  are  not  responsible  for  any  medical  services \nrendered to claimant that do not relate to the compensable ankle injury.   \n3. Is claimant entitled to temporary total disability benefits?  \nClaimant requested three separate periods of temporary total disability benefits (TTD).   As \nhe had a scheduled injury to his right lower extremity, claimant is entitled to TTD until he reaches the \nend of his healing period or until he returned to work, whichever occurs first. Wheeler Construction Co. \nv.  Armstrong,  73  Ark.  App.  146,  41  S.W.  3d  822  (2001).     I  will  discuss  these  three  periods  in \nchronological order. \nA:  From November 15th, 2021, when claimant was terminated by Duke to January 1st, 2022, when \nclaimant  began  working  for  the  Booneville  Housing  Authority.   As  claimant  was  not  receiving \nindemnity  benefits,  I  cannot  fault  him  for  trying  to  find  work  he  was  physically  capable  of \nperforming.   He  had  not  yet  been  released  from  care  by  Dr.  Mortensen,  and  given  his  subsequent \nsurgery,  I  find  his  healing  period  had  not  ended;  however,  he  had  returned  to  work.   Claimant  is \nentitled to TTD from November 16, 2021, through December 31, 2021.  \nB:  From May 1, 2022 until August 18, 2022.  Mr. Swint testified that claimant’s last day at Booneville \nHousing Authority was April 28, 2022.  Claimant next saw Dr. Mortensen on May 5, 2022 for a surgical \nconsultation.     On  that  date,  claimant  had  already  quit working, and it may be that claimant didn’t \nthink to ask about being taken off work before surgery.  Still, there is no objective medical evidence \nthat  claimant  would  have  been  unable  to  work  at  Booneville  Housing  Authority  up  to  the  date  of \n\nSears-H202345 \n12 \n \n \nsurgery, which was May 18, 2022.   Claimant was released to full duty on July 26, 2022.  I therefore \nfind he has proven a period of TTD from May 18, 2022 through July 26, 2022.  \nC.  From September 13, 2022, to a date yet determined. Claimant testified that he went to work for \nHudson Excavation, but he was unable to do the work because of the pain in his right ankle.  He said \nhe had not worked since September 13, 2022, and was under doctor’s restrictions, but presented no \ndocumentation to that effect.  The last medical report in the record released claimant to full duty with \nno restrictions.  Claimant failed to meet his burden of proof on this portion of his TTD claim. \nORDER \n \nClaimant has met his burden of proving by a preponderance of the evidence that he suffered \na compensable injury to his right lower extremity on October 25, 2021.  \nRespondent is liable for payment of all reasonable and necessary medical services provided in \nconnection with claimant’s compensable injury. \n Claimant is entitled to temporary total disability from November 16, 2021 through December \n31, 2021, and again from May 18, 2022 through July 26, 2022.   \nClaimant failed to prove he was entitled to temporary total disability from September 13, 2022 \nto a date to be determined.  \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. \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. \n\nSears-H202345 \n13 \n \n \nAll issues not addressed herein are expressly reserved under the Act. \nRespondent  is  responsible  for  paying  the  court  reporter  her  charges  for  preparation  of  the \ntranscript in the amount of $1,259.45. \n IT IS SO ORDERED. \n \n \n                                                                                              \n_______     \n JOSEPH C. SELF \nADMINISTRATIVE LAW JUDGE","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H202345 JOHN W. SEARS, Employee CLAIMANT DUKE MANUFACTURING COMPANY, Employer RESPONDENT CNA INSURANCE COMPANY, Carrier RESPONDENT OPINION FILED MARCH 9, 2023 Hearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Fort Smith, Sebastian County, Arkansas. ...","fetched_at":"2026-05-19T23:09:19.352Z","links":{"html":"/opinions/alj-H202345-2023-03-09","pdf":"https://labor.arkansas.gov/wp-content/uploads/SEARS_JOHNW_H202345_20230309.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}