{"id":"alj-H202784-2023-08-18","awcc_number":"H202784","decision_date":"2023-08-18","opinion_type":"alj","claimant_name":"Laroy Rogers","employer_name":"Resolute Forest Products Us, Inc","title":"ROGERS VS. RESOLUTE FOREST PRODUCTS US, INC. AWCC# H202784 AUGUST 18, 2023","outcome":"granted","outcome_keywords":["affirmed:1","granted:3","denied:1"],"injury_keywords":["ankle","fracture"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/ROGERS_LAROY_H202784_20230818.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"ROGERS_LAROY_H202784_20230818.pdf","text_length":16585,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H202784 \n \nLAROY ROGERS,   \nEMPLOYEE                                                   CLAIMANT \n \nRESOLUTE FOREST PRODUCTS US, INC.,   \nEMPLOYER                                                   RESPONDENT \n \n                                                      \nAMERICAN ZURICH INS. CO./ \nZURICH INS. CO., \nINSURANCE CARRIER/TPA                                             RESPONDENT                \n                                    \nOPINION AND ORDER FILED AUGUST 18, 2023 \n \nHearing conducted on May 16, 2023, before the Arkansas Workers’ Compensation Commission \n(the Commission), Administrative Law Judge (ALJ) Mike Pickens, in El Dorado, Union County, \nArkansas.   \n \nThe claimant was represented by the Honorable Mark Alan Peoples, The Peoples Law Firm, Little \nRock, Pulaski County, Arkansas.   \n \nThe respondents were represented by the Honorable Michael C. Stiles, Newkirk & Jones, Little \nRock, Pulaski County, Arkansas. The parties submitted their respective responses to the prehearing \nquestionnaire prior to the conference. \n \nINTRODUCTION \n In the prehearing order filed May 16, 2023, the parties agreed to the following stipulations \nwhich they affirmed on the record at the hearing: \n1. The Arkansas Workers’ Compensation Commission (the Commission) has \njurisdiction over this claim. \n2. The  employer/employee/carrier-TPA  relationship  existed  at  all  relevant  times \nincluding March 18, 2022, when the claimant sustained a compensable injury to his \nright foot and ankle for which the respondents paid medical and indemnity benefits.   \n \n3. The  claimant’s  average  weekly  wage  (AWW)  is  $863.71,  which  is  sufficient  to \nentitle him to weekly compensation rates of $576.00 for temporary total disability \n(TTD), and $432.00 for permanent partial disability (PPD) benefits. \n \n4. At this time, the respondents have controverted only the claimant’s request for additional \nmedical treatment after October 27, 2022. \n\nLaroy Rogers, AWCC No. H202784 \n \n \n \n2 \n  \n5. The parties specifically reserve any and all other issues for future litigation and/or \ndetermination. \n \n(Commission Exhibit 1 at 1-2; Reporter’s Transcript at 4). \n1. Whether the claimant is entitled to the additional medical treatment Dr. D’Orsay Bryant \nhas  recommended  at  this  time:  namely,  physical  therapy  (PT)  for  his  admittedly \ncompensable March 18, 2022, right foot and ankle injuries. \n \n2. Whether the claimant’s attorney is entitled to a controverted fee on these facts. \n \n3. The  parties  specifically  reserve  any  and  all  other  issues  for  future  litigation  and/or \ndetermination. \n \n(Comms’n Ex. 1 at 2; RT. 4). \n \n The claimant contends he is entitled to the medical treatment – at this time namely, PT – \nthe  claimant’s   one   (1)-time-only   change   of   physician   (COP),  Dr.  D’Orsay  Bryant,  has \nrecommended  for  the  claimant’s  admittedly compensable  right  foot  and  ankle  injuries.  The \nclaimant  hereby  specifically  reserves  any  and  all  other  issues  for  suture  determination  and/or \nlitigation. (Comms’n Ex. 1 at 2; RT. 4). \n The respondents contend they have paid the claimant all medical, indemnity, and any and \nall other benefits to which he is entitled pursuant to the Arkansas Workers’ Compensation Act (the \nAct),  and  that  to  date  they  have  not  controverted  the  payment  of  any  benefits  whatsoever.  The \nrespondents  contend  they  have  paid  all  related  medical  expenses  on the claimant’s  behalf. The \nrespondents  contend  they  have  paid  all TTD  benefits  to  which  the  claimant  is  entitled  while  he \nwas off work as a result of the March 18, 2022, compensable incident. The respondents contend \nthat on May 10, 2022, the claimant’s original treating physician, Dr. Robert A. Watson II, released \n\nLaroy Rogers, AWCC No. H202784 \n \n \n \n3 \nhim  to  full  duty  work  without  any  physical  limitations  or  restrictions.  Thereafter,  the  claimant \nexercised his COP right to Dr. Bryant, who has at this time has recommended the claimant undergo \nadditional medical treatment in the form of PT. The respondents have not yet agreed to pay for Dr. \nBryant’s PT recommendation. Finally, the respondents contend that pursuant to Ark. Code Ann. \nSection  11-9-411  (2023  Lexis  Replacement),  if  the  Commission  awards  the  claimant  any \nadditional benefits they are entitled to a dollar-for-dollar set-off/credit for all benefits paid by the \nclaimant’s  group  health  carrier,  as  well  as  any  and  all  short-term  disability  (STD),  long-term \ndisability (LTD), and unemployment benefits paid to the claimant by any third-party. (Comms’n \nEx. 1 at 2-3; RT. 4). \n                        STATEMENT OF THE CASE \n The claimant, Laroy Rogers (the  claimant), is 57 years old. On March 18, 2022, he was \nworking  with  Resolute  Forest  Products  (Resolute)  running  a  stick  machine  when  the  cart  at  the \nend of the conveyor belt began to move as he was stepping on it in order to facilitate the sticks \nmoving forward on the belt where they would then fall into the loading cart and a forklift would \nhaul them to another location for disposal. When the cart moved this caused the claimant to catch \nhis  right  foot  in  between  a  railing  and  the  cart,  and  he  injured  his  right  foot  and  ankle.  The \nrespondents accepted these injuries as compensable and paid medical and indemnity benefits. (RT. \n7-9; Comms’n Ex. 1 at 2). \n On  March  19,  2022,  the  claimant  presented  himself  for  evaluation  and  treatment  at  the \nMedical Center of Central Arkansas. Diagnostic imaging revealed the claimant had sustained a, \n“Minimally displaced fracture of the third metatarsal”, as well as “Possible nondisplaced fractures \n\nLaroy Rogers, AWCC No. H202784 \n \n \n \n4 \nat the base of the third and fourth proximal phalanges.” (Respondents’ Exhibit 1 at 1). The claimant \nattended a follow-up visit with Dr. Robert Watson, a physician with the Family Medical Care clinic \nin El Dorado. Dr. Watson’s clinic notes the claimant stated, “overall he is a lot better”, but he was \nstill having “soreness and struggles with bending toes.” (RX1 at 2). Dr. Watson’s impression at \nthat time was that the claimant’s right metatarsal fracture was healing, and he had right food pain, \ncellulitis,  and  a  bunion.  (Id.).  Two  (2)  weeks  later,  on  May  10,  2022,  the  claimant  followed-up \nwith Dr. Watson. Dr. Watson’s clinic note for this visit indicates the claimant told him, “his right \nfoot is feeling a lot better.” (RX1 at 3). Dr. Watson’s impression of the claimant’s condition at that \ntime was that he had a metatarsal fracture, foot pain, and cellulitis. (Id.). The claimant testified he \nwas  released  to  return  to  full  duty  work  around  May  22  or  23,  2022,  but  that  he  was  unable  to \nperform full duty work because he was still wearing an ankle/foot stabilizing boot and, in essence, \nhe was still healing, and his right foot and ankle were swollen and still hurting. (RT. 9-11).   \n Because he was still experiencing swelling and pain in his right foot and ankle, on May 4, \n2023,  the  claimant  presented  himself  for  evaluation  and  treatment  to  Dr.  D’Orsay  Bryant,  an \northopedic  surgeon  associated  with  the  Tri-State  Orthopedic  and  Sports  Medicine  Center  in  El \nDorado. Dr. Bryant’s clinic note for this visit noted the claimant had, “tenderness at the hallux and \nfirst and second metatarsal”; “pain on flexion and extension of the great toe MTP joint/hallux”; \n“difficulty with flexion and extension of the toes of the right foot with decreased sensation along \nthe  dorsal  and  plantar  aspects.”  (Claimant’s  Exhibit  1  at  1).  Dr.  Bryant’s  impression  of  the \nclaimant’s right foot and ankle condition at that time was, “Right foot third metarsal fracture by \nhistory with healed laceration.” (Id.). Dr. Bryant concluded the claimant:   \n\nLaroy Rogers, AWCC No. H202784 \n \n \n \n5 \n ...[I]s a suitable candidate for the conservative treatment program recommended \nin  the  initial  office  visit.  Physical  therapy  three  times  a  week  for  six  weeks  with \nrange  of  motion  and  strengthening  exercises  is  recommended.  He  is  a  suitable \ncandidate  for  physical  therapy,  right  foot  range  of  motion  and  strengthening \nexercises three times a week for six weeks.     \n \nCX1 at 2). Dr. Bryant also prescribed the claimant Gabapentin, medication designed to treat nerve \npain. (Id.). The respondents did not approve Dr. Bryant’s aforementioned conservative treatment \nrecommendations. (Comms’n Ex. 1 at 2-3; RT. 10-15) (Bracketed material added).   \n The claimant  returned to see  Dr. Bryant on June  1, 2023. Dr. Bryant noted the claimant \nhad continued to work, and that the PT he had PT he had recommended was not approved [by the \nrespondents]. (CX1 at 1 at 3, RT. 37). In his clinic note of this 6/1/2023 visit Dr. Bryant went on \nto describe his impression the claimant’s right foot/ankle condition as, “Persistent foot pain with \nun-rehabilitated  foot.”  (  Id.).  Dr.  Bryant  also  reiterated  his  5/4/2023  PT,  etc.,  recommendation, \nspecifically  noting  the  claimant  had,  “not  had  any  substantial  treatment  since  his  injury  on \n03/18/2022 for over a year.” (Id.). He ended his clinic note by clearly and bluntly stating: “Physical \ntherapy is mandatory for long-lasting effective result. Follow up in six weeks.” (CX1 at 4, RT. 38).   \n At the hearing the claimant testified his right foot/ankle were swollen and still hurt. He also \nagreed to allow the ALJ and both attorneys to visibly see the obvious swelling in the area of his \nright foot and ankle. He further testified he was self-treating by rubbing and soaking his foot every \nevening after he had worked 12-hour days. (RT. 12-25). \n \n \n\nLaroy Rogers, AWCC No. H202784 \n \n \n \n6 \nDISCUSSION \nThe Burden of Proof \n When deciding any issue, the ALJ and the Commission shall determine, on the basis of the \nrecord  as  a  whole,  whether  the  party  having  the  burden  of  proof  has  established  it  by  a \npreponderance of the evidence. Ark. Code Ann. § 11-9-704(c)(2) (2023 Lexis Replacement). The \nclaimant has the burden of proving by a preponderance of the evidence he is entitled to benefits. \nStone v. Patel, 26 Ark. App. 54, 759 S.W.2d 579 (Ark. App. 1998). Ark. Code Ann. Section 11-9-\n704(c)(3) (2023 Lexis Repl.) states that the  ALJ, the Commission, and the courts “shall strictly \nconstrue” the Act, which also requires them to read and construe the Act  in its entirety, and to \nharmonize its provisions when necessary. Farmers Coop. v. Biles, 77 Ark. App. 1, 69 S.W.2d 899 \n(Ark.  App.  2002).  In  determining  whether  the  claimant  has  met  his  burden  of  proof,  the \nCommission is required to weigh the evidence impartially without giving the benefit of the doubt \nto either party. Ark. Code Ann. § 11-9-704(c)(4) (2023 Lexis Repl.); Gencorp Polymer Products \nv. Landers, 36 Ark. App. 190, 820 S.W.2d 475 (Ark. App. 1991); Fowler v. McHenry, 22 Ark. \nApp. 196, 737 S.W.2d 633 (Ark. App. 1987).   \n All claims for workers’ compensation benefits must be based on proof. Speculation and \nconjecture, even if plausible, cannot take the place of proof. Ark. Dep’t of Corrections v. Glover, \n35 Ark. App. 32, 812 S.W.2d 692 (Ark. App. 1991); Dena Constr. Co. v. Herndon, 264 Ark. 791, \n595 S.W.2d 155 (1979). It is the Commission’s exclusive responsibility to determine the credibility \nof the witnesses and the weight to give their testimony. Whaley v. Hardees, 51 Ark. App. 116, 912 \n\nLaroy Rogers, AWCC No. H202784 \n \n \n \n7 \nS.W.2d 14 (Ark. App. 1995). The Commission is not required to believe either a claimant’s or any \nother witness’s testimony, but may accept and translate into findings of fact those portions of the \ntestimony it deems believable. McClain v. Texaco, Inc., 29 Ark. App. 218, 780 S.W.2d 34 (Ark. \nApp. 1989); Farmers Coop. v. Biles, supra.   \n The  Commission  has  the  duty  to  weigh  the  medical  evidence  just  as  it  does  any  other \nevidence,  and  its  resolution  of  the  medical  evidence  has  the  force  and  effect  of  a  jury  verdict. \nWilliams v. Pro Staff Temps., 336 Ark. 510, 988 S.W.2d 1 (1999). It is within the Commission’s \nprovince  to  weigh  the  totality  of  the  medical  evidence  and  to  determine  what  evidence  is  most \ncredible  given  the  totality  of  the  credible  evidence  of  record. Minnesota  Mining  &  Mfg’ing  v. \nBaker, 337 Ark. 94, 989 S.W.2d 151 (1999).  \nThe  claimant  has  met  his  burden  of  proof  in  demonstrating  he  is  entitled  to  additional \nmedical  treatment –  specifically,  the  PT and  strengthening  exercises –  Dr.  Bryant  has \nrecommended. \n Ark. Code Ann. Section 11–9–508(a) (2022 Lexis Supp.) requires  employers to provide \nmedical  services  that  are  reasonably  necessary  in  connection  with  a  compensable  injury.  A \nclaimant may be entitled to additional medical treatment after his healing period has ended if the \nproposed treatment is geared toward management of symptoms associated with his compensable \ninjury. Santillan v. Tyson Sales & Distribution, 2011 Ark. App. 634, 386 S.W.3d 566 (Ark. App. \n2011); Cossey v. Pepsi Beverage Co., 2015 Ark. App. 265, 3, 460 S.W.3d 814,  817 (Ark. App. \n2015).  Of  course,  significantly,  in  addition  to  being  reasonably  necessary  for  treatment  of  her \ncompensable  injury,  the  requested  additional  medical  treatment  must  be causally  related  to  the \ncompensable injury.     \n\nLaroy Rogers, AWCC No. H202784 \n \n \n \n8 \n \n In applying the applicable law to the facts of this case, I am compelled to find the claimant \nhas met his burden of proof in demonstrating the PT and strengthening exercises Dr. Bryant has \nrecommended for the claimant are both causally related to and reasonably necessary in light of his \nadmittedly compensable right foot and ankle injuries of March 18, 2022.   \n Indeed,  not  only  the  law,  but  common  sense,  life  experience,  and  the  Commission’s \nsuperior  knowledge,  experience,  and  issues  within  its  jurisdiction  and  purview,  support  the \nclaimant’s contention he is entitled to the  conservative  treatment  Dr.  Bryant  has  recommended. \nJust as a juror is not required to set aside his common knowledge (and common sense), likewise \nan  ALJ  as  a  finder  of  fact  may  consider  all  relevant  evidence  in  light  of  his  or  her,  “own \nobservations  and  experiences  in  the  affairs  of  life.” Ark.  Model  Jury  Instr., Civil,  104.  Both \ncommon  sense  and  life  experience,  as  well  as  the  Commission’s  knowledge  and  experience  in \nhearing and rendering opinions, demonstrate that oftentimes foot and/or ankle injuries often result \nin swelling and/or pain for extended periods of time – especially when an employee is working on \ntheir feet for long periods of time.   \n In  summary,  I  found  the  claimant  to  be  a  credible  witness,  and  the  additional  medical \ntreatment  he  is  requesting  to  be  eminently  reasonably  necessary  and  related  to  his  admittedly \ncompensable injury. See, Santillan, and Cossey, supra. To quote Dr. Bryant: “Physical therapy is \nmandatory  for  [a]  long  lasting  effective  result”  in  the  claimant’s  case.  (CX1  at  4;  RT.  38) \n(Bracketed material added). \n \n\nLaroy Rogers, AWCC No. H202784 \n \n \n \n9 \n     Therefore, for all the aforementioned reasons, I hereby make the following: \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n  1. The stipulations contained in the prehearing order filed May 23, 2023, which the   \n   parties affirmed on the record at the hearing, hereby are accepted as facts. \n \n  2. The claimant has met his burden of proof in demonstrating he is entitled to the   \n   additional medical treatment, specifically, the PT and strengthening exercises Dr. \n   Bryant has recommended. \n \n  3. Since the only issue litigated at the subject hearing was the claimant’s entitlement \n   to additional medical care, the he claimant’s attorney, of course, is not entitled to   \n   a fee on these facts.   \n \n If  they  have  not  already  done  so  the  respondents  hereby  are  ordered  to  pay  the  court \nreporter’s invoice within twenty (20) days of their receipt of this opinion and order. \n       IT IS SO ORDERED.   \n \n                                              \n \nMike Pickens \n                                          Administrative Law Judge \n \n \n \nMP/mp","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H202784 LAROY ROGERS, EMPLOYEE CLAIMANT RESOLUTE FOREST PRODUCTS US, INC., EMPLOYER RESPONDENT AMERICAN ZURICH INS. CO./ ZURICH INS. CO., INSURANCE CARRIER/TPA RESPONDENT OPINION AND ORDER FILED AUGUST 18, 2023 Hearing conducted on May 16, 2023, before the ...","fetched_at":"2026-05-19T23:04:05.469Z","links":{"html":"/opinions/alj-H202784-2023-08-18","pdf":"https://labor.arkansas.gov/wp-content/uploads/ROGERS_LAROY_H202784_20230818.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}