{"id":"alj-H202720-2023-11-30","awcc_number":"H202720","decision_date":"2023-11-30","opinion_type":"alj","claimant_name":"William Middleton","employer_name":"L & L Metal Fabrication","title":"MIDDLETON VS. L & L METAL FABRICATION AWCC# H202720 NOVEMBER 30, 2023","outcome":"dismissed","outcome_keywords":["dismissed:1","denied:1"],"injury_keywords":["neck","cervical"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/MIDDLETON_WILLIAM_H202720_20231130.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"MIDDLETON_WILLIAM_H202720_20231130.pdf","text_length":17903,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO. H202720 \n \nWILLIAM L. MIDDLETON, Employee                        CLAIMANT \n \nL & L METAL FABRICATION, Employer             RESPONDENT \n \nAMERISURE INSURANCE COMPANY, Carrier             RESPONDENT \n \n \n OPINION FILED NOVEMBER 30, 2023 \n \n \nHearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Springdale, Washington \nCounty, Arkansas. \n \nClaimant represented by MATTHEW J. KETCHAM, Attorney, Fort Smith, Arkansas. \n \nRespondents represented by KAREN H. MCKINNEY, Attorney, Little Rock, Arkansas. \n \n \n STATEMENT OF THE CASE \n  \n On September 28, 2023, the above captioned claim was scheduled for a hearing in Springdale, \nArkansas.  A pre-hearing conference was conducted on April 13, 2023 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. Prior to the date of the hearing, the parties agreed \nto submit this matter on a stipulated record and briefs.  \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1.   The Arkansas Workers’ Compensation Commission has jurisdiction of this claim.  \n            2.   The employee/employer/carrier relationship existed on July 3, 2021.\n1\n \n            3.    The respondents have controverted the claim in its entirety. \n \n1\n I note a discrepancy between the stipulation as to the date of injury and the contention of claimant.  The evidence \nshowed that claimant was working a shift that began on July 3, 2021, and continued into July 4, 2021. The different \ndates in the issues and the contentions are of no consequence.  \n\nMiddleton-H202720 \n2 \n \nThe parties later submitted joint stipulations that will be discussed below. \n            At the pre-hearing conference the parties agreed to litigate the following issues: \n            1.   Whether claimant sustained a compensable injury on July 3, 2021. \n            2.   If compensable, whether claimant is entitled to medical benefits past and future. \n            3.   Whether claimant is entitled to temporary total disability benefits. \n            4.   Whether claimant is entitled to mileage. \n            5.   Attorney’s fees. \n All other issues are reserved by the parties. \n The claimant contends that “He was injured on July 4, 2021, when he was struck on top of his \nhard hat by another employee causing an injury to his neck and head which has ultimately led to a \ntraumatic  brain  injury.  The  claimant  was  seen  two  (2)  days  later  at  Arkansas  Occupational  Health \nClinic  for  continued  complaints  of  head  injury  with  neck  pain.  Imaging  was  performed  and  the \nclaimant was released to regular duty with instructions to return in one (1) week for follow up. On \nJuly 13, 2021, the claimant returned to Arkansas Occupational Health Clinic for continued neck pain \nwherein  he  received  a  steroid  injection  and  to  return  in  one  (1)  week  for  follow  up.  The  claimant \nreturned to Arkansas Occupational Health Clinic on July 20, 2021, for continued head and neck pain. \nThe PA-C referred the claimant to physical therapy and to return in three (3) weeks. On August 18, \n2021, the claimant returned to Arkansas Occupational Health Clinic for worsening pain in his neck. \nThe claimant had not been able to start physical therapy. On September 29, 2021, the claimant was \ntreated  by  Arkansas  Occupational  Health  Clinic  for  continued  worsening  neck  pain.  The  PA-C \nreferred the claimant for a neurology consultation as well as an MRI or CT of his neck. The claimant \nhad  an  MRI  of  his  cervical  spine  performed  on  October  5, 2021,  at  Mana  Medical  Associates.  On \nOctober  18, 2021,  claimant  followed  up  at  Arkansas  Occupational  Health  Clinic  for  continued \n\nMiddleton-H202720 \n3 \n \nworsening neck pain. The MRI imaging was reviewed, and the claimant was to be referred for possible \nESI. On November 8, 2021, the claimant was seen by Dr. Luke Knox for continued neck pain. Dr. \nKnox suggested that the claimant receive epidural steroid injections prior to surgical intervention. The \nclaimant followed up with Dr. Luke Knox approximately two (2) months later and has continued to \nhave neck and head pain. The claimant reserves the right to amend and supplement his contentions \nafter additional discovery has been completed.”  \n The respondents contend that “The claimant did not sustain a compensable injury to his head \nor neck. Respondents further contend that the claimant has filed a civil action in Circuit Court against \nL & L Metal Fabrication, Inc., Brandon White, and John Does #1-10 for this exact same injury. The \nclaimant had previously undergone a cervical fusion and any issues with his cervical spine was pre-\nexisting. Moreover, Ark. Code. Ann 11-9-102(4)(A)(i) defines a compensable injury as an “accidental \ninjury.” If the injury  was  an  intentional  injury  as  alleged  by  the  claimant  in  his  civil  complaint,  the \nclaimant did not sustain a compensable injury.”  \n From a review of the entire record, to include medical reports, documents, and other matters \nproperly before the Commission, the following findings of fact and conclusions of law are made in \naccordance with A.C.A. §11-9-704: \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 \n13, 2023, and contained in a pre-hearing order filed that same date are hereby accepted as fact. \n 2.  Claimant is barred from pursuing this matter because he elected a remedy in civil court \nand resolved that matter via a settlement.  \n \n \n\nMiddleton-H202720 \n4 \n \n \n FACTUAL BACKGROUND \n On  the  day  before  the  scheduled  hearing,  the  parties  contacted  me  and  advised  they  could \nsubmit this matter on a stipulated record.   The hearing was cancelled, and after a delay in getting the \njoint stipulation executed, it was received on November 13, 2023.   The joint stipulation specifically \nreferenced seven records as joint exhibits.  Respondent submitted its brief and attached 32 pages of \nnon-medical records in support of its position on October 13, 2023.  Claimant submitted his brief and \n71 pages of non-medical records in support of his position.   Because the supporting documents from \nthe parties were not part of the joint stipulation agreement, I inquired of the parties if either had an \nobjection to the documents submitted by the other party.  Both advised they had no objection to the \nrecords attached to the brief of the opposing party.  The email exchange between the parties and the \ncourt is blue backed to the record in this case.  As such, all the documents provided by the parties are \nproperly before me to be considered in this opinion. \nTHE JOINT STIPULATIONS \n The parties submitted these joint stipulations, which are hereby accepted as fact: \n1.       The parties agreed to submit this claim on a stipulated record to consist of the stipulated facts \nand: \na. The Claimant’s Prehearing Questionnaire Responses filed February 10, 2023. \nb. Respondents Prehearing Questionnaire Responses filed April 12, 2023, with attached exhibits. \nc. Respondents Supplemental Responses filed May 31, 2023, with attached exhibits. \nd. The Prehearing Order filed April 13, 2023. \ne. The Claimant’s Medical Records filed September 21, 2023. \nf. Brandon White’s deposition taken on August 10, 2023 \ng. The AR-N. \n\nMiddleton-H202720 \n5 \n \n \n2.        The  Employee/Employer/Carrier  relationship  existed  between  the  parties  on  July  3  and  4, \n2021. \n3.        The  claimant  earned  a  sufficient  average  weekly  wage  to  be  entitled  to  the  maximum \ncompensation  rates  of  $736.00  per  week  for  temporary  total  disability  and  $552.00  per  week  for \npermanent partial disability. \n4.        The Respondents have controverted this claim in its entirety. \n5.        The claimant was employed by L & L Fabrication, Inc. as a job supervisor. \n6.        Brandon White, owner of Respondent Employer, struck the claimant on the top of his head \nwith his hard hat in the early morning hours of July 4, 2021. \n7.        The claimant completed an AR-N on July 6, 2021, alleging an injury to his head and neck when \n“the owner of L & L Brandon White hit me in the top head very hard with a hard hat.”  \n8.        Mr. White provided deposition testimony regarding this incident. \n9.        The  claimant  filed  a  civil  complaint  in  the  Circuit  Court  of  Washington  County,  Arkansas \nrelated to this injury in the early morning hours of July 4, 2021. \n10.      In a Second Amended Complaint filed on July 22, 2022, the claimant dropped all allegations of \nnegligence  and  alleged  that  he  was  battered  by  Brandon  White  when  White  “deliberately  and \nintentionally  took  his  hard  hat  and  hit  Plaintiff  over  the  head  with  it  after  becoming  angry  with \nPlaintiff.” \n11.      The claimant further alleged in his Second Amended Complaint, “Defendant White’s anger \nand conduct towards Plaintiff evinces an apparent intent to injure Plaintiff.”  \n12.      In response to a Motion to Dismiss of the claimant’s Second Amended Complaint due to the \nexclusive remedy being workers’ compensation, claimant contended that all allegations in the Second \nAmended  Complaint  were  outside  the  exclusive  jurisdiction  of  the  Workers’  Compensation \n\nMiddleton-H202720 \n6 \n \n \nCommission pursuant to the “intentional-tort exception.” \n13.  Prior to receiving a ruling on the  Motion to Dismiss, the parties in that civil suit reached a \nSettlement Agreement with a Full and Final Release of Claims. \nREVIEW OF THE EXHIBITS \n \n In  addition  to  the  documents  referenced  in  #1  of  the  joint  stipulation,  claimant  submitted \ndocuments from the above-referenced civil litigation in Washington County.   Respondent duplicated \nmany  of  those  documents,  and  included  the  confidential  settlement  agreement  which  ended  the \nWashington County lawsuit between claimant and respondent L & L Metal Fabrication, Inc.  \nADJUDICATION \n \n Boiled down to its simplest elements, the issue before me is whether a claimant can bring a \nlawsuit  against  a  respondent  in  state  court,  pleading  an  intentional  tort to  overcome  the  exclusive \nremedy provision of the Arkansas Workers' Compensation Act, and then maintain a claim for workers’ \ncompensation  benefits  after  settling  the  case  in  circuit  court.    After  reviewing  the  stipulations  and \nexhibits and applying the law to these stipulated facts, I find the answer to that question is “no.” \n To begin with, it is the Commission that has the exclusive jurisdiction to determine whether \nit has jurisdiction over a claim.  The Arkansas Supreme Court made that clear in VanWagoner v. Beverly \nEnters., 334 Ark. 12, 970 S.W.2d 810 (1998):   \n“We hold that the exclusive remedy of an employee or her representative on \naccount of injury or death arising out of and in the course of her employment \nis  a  claim  for  compensation  under  § 11-9-105, and  that  the commission  has \nexclusive, original jurisdiction to determine the facts that establish jurisdiction, \nunless the facts are so one-sided that the issue is no longer one of fact but one \nof law, such as an intentional tort. See Angle v. Alexander, 328 Ark. 714, 719, \n945  S.W.2d  933  (1997)  (citing Miller  v.   Ensco,  Inc.,  286  Ark.  458,  461,  692 \nS.W.2d 615 (1985) (explaining that, before an employee is free to bring a tort \naction for damages against an employer, the facts must show that the employer \nhad  a  \"desire\"  to  bring  about  the  consequences  of  the  acts,  or  that  the  acts \nwere premeditated with the specific intent to injure the employee)”   \n \n\nMiddleton-H202720 \n7 \n \n \n Claimant  first  had  sought  damages  for  his  injuries  under  two  theories,  negligence  and  the \nintentional  tort  of  battery.    When  the  defense  raised  that  a  negligence  cause  of  action  against  the \nemployer  could  only  be  brought  in  a  workers’ compensation claim, claimant filed  an  amended \npleading, eliminating the negligence claim, leaving only the intentional tort theory of recovery.  Thus, \nclaimant did what he could to avoid a claim before the Commission.  \n The Arkansas Supreme Court dealt with a similar issue in  Western Waste Indus. v. Purifoy, \n326 Ark. 256, 930 S.W.2d 348 (1996), although the order of events was reversed.  Purifoy first settled \na worker’s compensation claim against Western Waste, and then filed a civil lawsuit against that \ncompany.   In granting a writ of prohibition, the Court held:  \n“This court has held that the general rule is that an injured employee's right \nto   recover   for   job-related   injuries   is   exclusively   under   the   Workers' \nCompensation  Act,  but  when  the  employee  is  able to  show  actual,  specific \nand  deliberate  intent  by  the  employer  to  injure  him,  he  may  avoid  the \nexclusive  remedy  under  the  Act  and  proceed  in  a common-law  tort  action. \nSontag v. Orbit Valve Co., 283 Ark. 191, 672 S.W.2d 50 (1984). In other words, \nthe employee has the option to pursue his or her claim for damages either in \ntort or under the Workers' Compensation Act. However, once the employee \nmakes that election, the employee may not later avail himself or herself of the \nremedy not chosen.” (Emphasis added) \n \n The Court concluded by observing that “in determining whether a trial court has jurisdiction \nin prohibition matters, this court is limited to the parties' pleadings.”  \n  In  the  Washington  Circuit  Court  action  filed  by  claimant,  the  defendants  abandoned  their \nexclusive-remedy defense after claimant filed his Second Amended Complaint. (Cl. X. 32-33) In that \npleading, claimant had removed all references to negligence from his initial complaint, and specifically \nalleged that  defendant’s  conduct  brought  “Defendant’s  conduct  within  the  “intentional-tort \nexception” to the exclusivity provision of the Arkansas Workers’ Compensation Act, codified at Ark. \nCode Ann. §11-9-105(a).” (Cl. X, p. 50, paragraph 2) Based on that pleading, the Circuit Court could \nnot have referred the case to the Workers’ Compensation Commission, because claimant had clearly \n\nMiddleton-H202720 \n8 \n \n \nand intentionally placed himself out of the jurisdiction of the Commission.   \n In a similar fashion, the Full Commission reversed a ruling by an administrative law judge that \nthe claimant was not an employee of a company at the time of his alleged injury.   The claimant had \npreviously filed a lawsuit which he alleged that at the relevant time, he was employed by Webb Wheel.   \nIn the workers’ compensation case, he maintained he was not so employed.   The relevant passage \nfrom that opinion:  \n“Moreover,  the  claimant  filed  a  complaint  in  The  Circuit  Court  of  Benton \nCounty,  Arkansas  on  April  12,  2018,  and  expressly  stated  that  he  \"was \nemployed at Webb-Wheel Products, Inc. (\"Webb-Wheel\") in Siloam Springs, \nArkansas.  Mr.  Bunch  was  employed  at  Webb-Wheel  from  approximately \nAugust  of  1998  through August  of  1999....\"  A  party  litigant  is  bound  by  his \npleadings  and  cannot  maintain  a  position  inconsistent  with  his  pleadings. \nInternational Harvester v. Burks Motors, 252 Ark. 816, 481 S.W.2d 351 (1972). The \ndoctrine against inconsistent positions is a form of estoppel that prevents an \nindividual  from  asserting  claims  that  are  inconsistent  with  the  individual's \nprevious positions. Jackson v. Smiley Sawmill, 2019 Ark. App. 235, 576 S.W.3d \n43.  The  Full  Commission  finds  that  the  doctrine  of  inconsistent  positions \napplies  in  the  present  matter.  We  find  that  the  claimant  should  be estopped \nfrom  asserting  that  that  he  was  not  employed  with  the  respondent  Webb \nWheel Products while working there in 1999.”  Bunch v. Gates Corporation and \nWebb Wheel. 2020 AR WRK. COMP. LEXIS 340.  (Emphasis added) \n \n The pleadings in the Washington County Circuit Court case could not be any clearer.  Claimant \nspecifically framed his cause of action to circumvent the Commission’s jurisdiction.  Having done so, \nand then having resolved that case by way of a settlement agreement, claimant is estopped from now \nbringing a workers’ compensation case.\n2\n    \n \n \n2\n I note that in the confidential settlement agreement, claimant released L and L Fabrication, Inc. of “all manners \nactions, suits, claims and demands whatsoever, whether known or unknown, plaintiff now has, or may hereafter \nhave, or by reason of any cause, matter or thing whatsoever for negligence, personal injuries, pain and suffering, \npast medical expenses, future medical expenses, hospital expenses, mental anguish, disfigurement, disability, \ndegradation, emotional distress, general and special damages, punitive damages attorney’s fees, or any other losses \nor expenses, both present, past and future, arising out of, connected with, or in any way resulting from the claims or \nthe litigation which existed as of the date this release was executed.”     Because I believe the case law against \ninconsistent positions and election of remedies resolves this matter, I do not have to decide if that agreement would \nbe effective in a workers’ compensation case.     \n\nMiddleton-H202720 \n9 \n \n \nORDER \n  \n Claimant did not suffer a compensable injury on July 3 or 4, 2021, because he elected a civil \nremedy instead of pursuing a claim for benefits under the Arkansas Workers' Compensation Act.  \nThis matter is therefore denied and dismissed.  \n IT IS SO ORDERED. \n                                                                                              \n_______     \n JOSEPH C. SELF \nADMINISTRATIVE LAW JUDGE","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H202720 WILLIAM L. MIDDLETON, Employee CLAIMANT L & L METAL FABRICATION, Employer RESPONDENT AMERISURE INSURANCE COMPANY, Carrier RESPONDENT OPINION FILED NOVEMBER 30, 2023 Hearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Springdale, Washington Cou...","fetched_at":"2026-05-19T23:01:07.489Z","links":{"html":"/opinions/alj-H202720-2023-11-30","pdf":"https://labor.arkansas.gov/wp-content/uploads/MIDDLETON_WILLIAM_H202720_20231130.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}