{"id":"alj-H203028-2023-08-02","awcc_number":"H203028","decision_date":"2023-08-02","opinion_type":"alj","claimant_name":"Dwight Wilson","employer_name":"Express Services, Inc","title":"WILSON VS. EXPRESS SERVICES, INC. AWCC# H203028 AUGUST 2, 2023","outcome":"denied","outcome_keywords":["affirmed:1","granted:1","denied:3"],"injury_keywords":["wrist","repetitive","neck","cervical","carpal tunnel"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/WILSON_DWIGHT_H203028_20230802.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"WILSON_DWIGHT_H203028_20230802.pdf","text_length":22702,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H203028 \n \nDWIGHT WILSON,   \nEMPLOYEE                                       CLAIMANT \n \nEXPRESS SERVICES, INC.,   \nEMPLOYER                                                RESPONDENT \n \nAIN INS. CO./ \nSEDGWICK CLAIMS MG’T SERVICES, INC.,   \nINS CARRIER/TPA            RESPONDENT \n \nOPINION AND ORDER FILED AUGUST 2, 2023 \n \nHearing  conducted on May 4, 2023, before the Arkansas Workers’ Compensation Commission \n(AWCC), Administrative Law Judge (ALJ) Mike Pickens, in Texarkana, Miller County, Arkansas.   \n \nThe  claimant  was  represented  by  the  Honorable Gregory  R.  Giles,  Moore,  Giles  &  Matteson, \nTexarkana, Miller County, Arkansas. \n \nThe respondents were represented by the Honorable Jarrod S. Parrish, Worley, Wood & Parrish, \nLLC, Little Rock, Pulaski County, Arkansas.   \n \n \n     INTRODUCTION \n \n     In the Prehearing Order filed February 16, 2023, the parties agreed to the following \nstipulations, which 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  with  the  claimant  at  all \nrelevant times, including March 21, 2022, when the claimant alleges he sustained a \ncompensable injury to his right wrist, either as a result of a specific incident injury \nor a gradual onset injury that culminated in disability on that date.   \n                                                     \n3.   The claimant’s average weekly wage (AWW) was $500.50, which is sufficient to \nentitle him to weekly compensation rates of $334.00 for temporary total disability \n(TTD), and $250.00 for permanent partial disability (PPD) benefits if his claim is \ndeemed compensable. \n \n\nDwight Wilson, AWCC No. H203028 \n \n2 \n \n4. The respondents have controverted this claim in its entirety. \n \n5. The parties specifically reserve any and all other issues for future litigation \n            and/or determination.   \n(Commission  Exhibit  1  at  1-2;  Hearing  Transcript  at  6-7).  The  parties  agreed  to  an  additional \nstipulation at the hearing, that being that the  claimant had in fact applied for and was  receiving \nSocial Security disability (SSD) benefits, and that pursuant to Ark. Code Ann. Section 11-9-411 \n(2023 Lexis Replacement) the respondents are entitled to a dollar-for-dollar credit/off-set based \non the amount of SSD benefits paid to the claimant. (T. 5-6) \n     Pursuant to the parties’ mutual agreement the issues litigated at the hearing were:                                              \n1. Whether  the  claimant  sustained a  compensable  injury  within  the  meaning  of  the \nArkansas Workers’ Compensation Act (the  Act)  to  his  right  wrist  as  a  result  of \neither a specific incident or a gradual onset injury which culminated in disability \non March 21, 2022. \n \n2. If the claimant’s alleged injury is deemed compensable, the extent to which he is \nentitled to medical and indemnity benefits. \n   \n3.       Whether the claimant’s attorney is entitled to a controverted fee on these facts. \n \n4. The parties specifically reserve any and all other issues for future litigation and/or \ndetermination. \n \n(Comms’n Ex. 1 at 2; T. 5-6). \n The claimant contends he sustained a compensable injury to his right wrist either as a result \nof a specific incident injury or a gradual onset injury which culminated in disability on March 21, \n2022. He contends he is entitled to any and all related, reasonably necessary medical treatment and \n\nDwight Wilson, AWCC No. H203028 \n \n3 \n \nrelated  expenses,  as  well  as  TTD  benefits  from  the  date  of  his  injury  through  a  date  yet  to  be \ndetermined. The claimant contends further his attorney is entitled to a controverted attorney’s fee \non any and all indemnity benefits awarded. (Comms’n Ex. 1 at 2-3; T. 5-6). \n The respondents contend the claimant did not sustain and cannot meet his burden of proof \nin demonstrating he sustained either a compensable specific incident or gradual onset injury which \nculminated in disability on or about March 21, 2022. The respondents contend the claimant’s need \nfor medical treatment for his right wrist, if any, is associated with non-work-related, underlying, \nand preexisting problems or conditions, and not any alleged work injury, specific or gradual onset. \nFurthermore,  with  respect  to  the  alleged  gradual  onset  injury  the  respondents  contend  the \nclaimant’s job was not rapid and repetitive in nature, and that the medical records/documentation \ndoes not demonstrate the claimant’s non-repetitive job duties were the “major cause” of his alleged \nright wrist injury or need for medical treatment. (Comms’n Ex. 1 at 3; T. 5-6). \n The record consists of the hearing transcript and any and all exhibits contained therein and \nattached thereto. \nSTATEMENT OF THE CASE \n The relevant facts are incorporated where applicable in the “Discussion” section of this \nopinion and order, infra.     \n \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 \n\nDwight Wilson, AWCC No. H203028 \n \n4 \n \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-\n9-704(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. \n791, 595 S.W.2d 155 (1979). It is the Commission’s exclusive responsibility to determine the \ncredibility of the witnesses and the weight to give their testimony. Whaley v. Hardees, 51 Ark. \nApp. 116, 912 S.W.2d 14 (Ark. App. 1995). The Commission is not required to believe either a \nclaimant’s or any other witness’s testimony, but may accept and translate into findings of fact \nthose portions of the testimony it deems believable. McClain v. Texaco, Inc., 29 Ark. App. 218, \n780 S.W.2d 34 (Ark. App. 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. \n\nDwight Wilson, AWCC No. H203028 \n \n5 \n \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). \n As  always,  both  attorneys  did  an  excellent  job  zealously  representing  their  respective \nclients and presenting their respective cases at the subject hearing – both of which resulted in a \ncomplete  record  that  was  most  helpful  to  this  ALJ  in  examining  the  relevant  evidence  and \nrendering  the  opinion  herein.  Consequently,  based  on  the  aforementioned  law  as  applied  to  the \nfacts  of  this  case,  and  the  totality  of  the  credible  evidence  of  record –  both  testimonial  and \ndocumentary –  I  am  compelled  to  find  the  claimant  has  failed  to  meet  his  burden  of  proof  in \ndemonstrating he sustained either a specific-incident compensable injury on March 21, 2022, or a \ngradual onset compensable injury which culminated in disability beginning on March 21, 2022, \nduring the very short period of time he worked for Express Services from March 14, 2022, through \nMarch 21, 2022, for the reasons set forth below. \nThe  claimant  himself  readily  admits  he  did  not  sustain  a  specific-incident  compensable \ninjury  on  March  21,  2022.  This  admission,  along  with  the  relevant  medical  records, \ndemonstrate  the  claimant  has  failed  to  meet  his  burden  of  proof  in  demonstrating  he \nsustained a specific-incident compensable injury on March 21, 2022. \n \n For  any  specific-incident  injury  to  be  compensable,  the  claimant  must  prove  by  a \npreponderance of the evidence that his injury: (1) arose out of and in course of his employment; \n(2) caused internal or external harm to his body that required medical services; (3) is supported   \nby objective findings, medical evidence, establishing the alleged injury; and (4) was caused by a \nspecific  incident  identifiable  by  time  and  place  of  occurrence. Ark.  Code  Ann.  §  11-9-102(4); \n\nDwight Wilson, AWCC No. H203028 \n \n6 \n \nCossey v. Gary A. Thomas Racing Stable, 2009 Ark. App. 666, at 5, 344 S.W.3d 684, 687 (Ark. \nApp.  2009).  Of  course,  the  claimant  bears  the  burden  of  proving  the  compensable  injury  by  a \npreponderance of the credible evidence. Ark. Code Ann. § 11-9-102(4)(E)(i); and Cossey, supra.   \n “Objective findings” are those findings which cannot come under the voluntary control of \nthe patient. Ark. Code Ann. § 11-9-102(16)(A); Long v. Wal-Mart Stores, Inc., 98 Ark. App. 70, \nat  80  250  S.W.3d  263,  at  272  (Ark.  App.  2007).  Objective  findings, “specifically exclude such \nsubjective complaints or findings such pain, straight-leg-raising tests, and range-of-motion tests.” \nBurks  v.  RIC,  Inc.,  2010  Ark.  App.  862  (Ark.  App.  2010).  Objective  medical  evidence  is  not \nessential to establish a causal relationship between the work-related accident and the alleged injury \nwhere objective medical evidence exists to prove the existence and extent of the underlying injury, \nand a preponderance of other nonmedical evidence establishes a causal relationship between the \nobjective  injury  and  the  work-related  incident(s)  in  question. Flynn  v.  Southwest  Catering  Co., \n2010  Ark.  App.  766,  379  S.W.3d  670  (Ark.  App.  2010).  Moreover,  the  claimant  must  prove  a \ncausal relationship exists between her employment and the alleged injury. Wal-Mart Stores, Inc., \nv. Westbrook, 77 Ark. App. 167, 171, 72 S.W.3d 889, 892 (Ark. App. 2002) (citing McMillan v. \nU.S. Motors, 59 Ark. App. 85, 90, 953 S.W.2d 907, 909 (Ark. App. 1997). \n The claimant himself admitted in both his  sworn deposition testimony and at the subject \nhearing that he could not identify a specific incident on March 21, 2022, that caused his right wrist \npain. When the respondents’ counsel pointed out the claimant could not identify a specific incident \non March 21, 2022, wherein the claimant injured his right wrist, the claimant responded, “Right, \nthat’s right.” (T. 105). He went on to agree with respondents’ counsel that the claimant’s testimony \nwas that he had, “...a gradual onset of symptoms.” (T. 105). In fact, the claimant went on to testify \n\nDwight Wilson, AWCC No. H203028 \n \n7 \n \nhe had a gradual onset of symptoms, “When I went home that night, yes”, “that night” being the \nevening of March 21, 2022. (T. 105-106).   \n In addition, the preponderance of the medical evidence of record reveals the claimant had \nnumerous medical problems, including gout, and that he had some history of pain and problems in \nhis right hand and right wrist. (T. 95-104), Respondents’ Exhibit 1 at 1-17). Indeed, on December \n22, 2021, the claimant went to see his doctor complaining of right hand/wrist pain, and he admitted \nhaving told the doctor at that time – some three (3) months before he went to work for Expresses \nServices – he had been dropping things when he tried to pick up things with his right hand. (T. 99; \nRX1 at 5-7). At that time the claimant was complaining of various subjective symptoms such as \npain and numbness in the area of his right thumb, hand, and wrist, right-sided radiculopathy, and \na  shooting  pain  from  his  right  hand  to  his  elbow.  (T.  98;  RX1  at  5,  6,  and  7).  From  at  least \nSeptember  3,  2015  through  March  7,  2022 –  the  latter  date  being  just  one  (1)  week  before  the \nclaimant went to work for Express Services – the claimant, as noted above, was having pain and \nnumbness in his right hand to the extent he was dropping things and having trouble gripping things \nwith his right hand. (Id.)       \n On March 7, 2022 – just one (1) week before the claimant started work at Express Services \n–  the  claimant  went  to  see  Dr.  Wayne  Daniels,  an  orthopedic  surgeon  with  South  Arkansas \nOrthopedic  and  Sports  Medicine,  complaining  of neck pain, and, “Numbness right index finger \nand right thumb.” (RX1 at 14). Dr. Daniels diagnosed the claimant as having, “Cervical disc \ndisorder with radiculopathy, unspecified cervical region.” (RX1 at 16; 14-16). Dr. Daniels wrote \nin the “IMPRESSION” section of his report the claimant’s symptoms were at that time the result \nof, “Cervical pain with right upper extremity radiculopathy.” (RX1 at 16). Consequently, Dr. \n\nDwight Wilson, AWCC No. H203028 \n \n8 \n \nDaniels ordered an MRI of the claimant’s cervical spine. (RX1 at 16). At that time the claimant \nwas working as a loader for Graphic Packaging. (RX1 at 14). While at times during his hearing \ntestimony the claimant went to great lengths to differentiate between the right hand, thumb, and \nwrist pain before and after the alleged injury/disability date of March 21, 2022, the totality of both \nhis  hearing  testimony  and the  relevant  medical  records  appear  to  contradict  the  claimant’s \ntestimony in this regard. (T. 38-117; RX1 at 1-31; Claimant’s Exhibit 2 at 1-184). In summary, \nboth the claimant’s own testimony and the totality of the relevant medical records demonstrate the \nclaimant’s right hand,  wrist, and thumb numbness  and  pain  were  the  result  of  degenerative \nconditions in his cervical spine, and not his work duties at Express Services. While I can certainly \nunderstand his work duties at Express Services may have revived the claimant’s symptoms, the \ntotality of the record herein reveals the claimant’s right hand, wrist, thumb, and arm pain and \nnumbness were more likely than not the result of the degenerative condition of his cervical spine, \nand not any injury he allegedly sustained at Express Services.       \n Finally, I must say I find it interesting the claimant began using his cell/mobile phone to \ntake  pictures  of  his  work  station/duties  very  soon  after  he  went  to  work  for  Express  Services \n(apparently in knowing violation of his employer’s cell phone policy which prevented him from \nhaving a cell phone in his work area. (T. 81-83). While the claimant testified, he was taking the \npictures to show his wife and grandson what he did at work, I did not find his testimony in this \nregard  to  be  credible.  Indeed,  at  times it appeared the claimant’s initial hearing testimony was \ninconsistent with his sworn deposition testimony, and the medical record (the claimant alleged at \nleast one of his physicians had incorrectly written concerning the location of his right hand/wrist, \netc. pain); however, when respondents’ counsel confronted the claimant with these apparent \n\nDwight Wilson, AWCC No. H203028 \n \n9 \n \ninconsistencies the claimant admitted that his sworn deposition testimony was accurate. On cross-\nexamination the claimant admitted he was a convicted felon due to having written a “hot check”, \nwhich I note is a crime of dishonesty. (T. 80-81).             \nThe  claimant  has  failed  to  meet  his  burden  of  proof  in  demonstrating  the  work  duties  he \nperformed for Express Services for some seven (7) days – from March 14, 2022, to March \n21, 2022 – were the “major cause” of his right wrist problems. Therefore, he has failed to \nmeet  his  burden  of  proof  in  demonstrating  his  right  wrist  problems  were  the  result  of a \ngradual onset compensable injury as defined in the Act. \n \nWith  respect  to  an  alleged  gradual  onset  compensable  injury Ark.  Code  Ann. §  11-9-\n102(4)(A) (2023 Lexis Repl.) defines “compensable injury” as follows: \n(ii) An injury causing internal or external physical harm to the body and arising out \n    of and in the course of employment if it is not caused by a specific incident or \n    is not identifiable by time and place of occurrence; if the injury is: \n \n(a) Caused by rapid repetitive motion. Carpal tunnel syndrome is specifically \ncategorized as a compensable injury falling within this definition[.]   \n \n(Bracketed material, and emphasis added).\nThe test for determining whether an injury is caused by rapid repetitive motion is two (2)-\npronged: (1) the task must be repetitive, and (2) the repetitive motion must be rapid. Malone v. \nTexarkana  Public  Schools,  333  Ark.  343,  969  S.W.2d  644  (1998).  Multiple  tasks  involving \ndifferent  movements  can  be  considered  together to  satisfy  the  “repetitive  element”  of  rapid \nrepetitive motion. Id. \n Just as in the case of any other compensable injury, an alleged gradual onset compensable \ninjury must be established by medical evidence supported by objective findings.   Ark. Code Ann. \n§ 11-9-102(4)(D); Ark. Code Ann. § 11-9-102(16). “Objective findings” are defined as findings \nwhich cannot come under the voluntary control of the patient. Ark. Code Ann. § 11-9-102(16)(A); \n\nDwight Wilson, AWCC No. H203028 \n \n \n \n10 \nLong v. Wal-Mart Stores, Inc., 98 Ark. App. 70, at 80 250 S.W.3d 263, at 272 (Ark. App. 2007). \nObjective  findings  specifically  exclude  such  subjective  complaints  or  findings  as  pain,  straight-\nleg-raising  tests,  and  range-of-motion  (ROM)  tests  since  they  all  are  subjective  in  nature  and \nsubject to the claimant’s  voluntary  control  or  manipulation. See,  Burks  v.  RIC,  Inc.,  2010  Ark. \nApp. 862 (Ark. App. 2010).   \n With  respect  to  a  gradual  onset  injury  caused  by  rapid  repetitive  motion  the  resulting \ncondition  is  compensable only  if  the  alleged  compensable  injury  is  the “major cause” of the \ndisability or need for treatment. Ark. Code Ann. § 11-9-102(4)(E)(ii); Medlin v. Wal-Mart Stores, \nInc., 64 Ark. App. 17, 977 S.W.2d 239 (1998). “Major cause” means greater than fifty percent \n(50%) of the cause. Ark. Code Ann. § 11-9-102(4)(E)(ii); Lowe's Home Ctrs., Inc. v. Pope, 482 \nS.W.3d 723 (Ark. App. 2016). The “major cause” requirement may be established by the fact the \nclaimant  was  asymptomatic  prior  to  an  incident,  and  then  became  symptomatic  and  required \nmedical treatment after the incident. Parker  v. Atlantic Research Corp., 87 Ark. App. 145, 189 \nS.W.3d 449 (Ark. App. 2004) (Emphasis added). \n The resolution of the gradual onset compensable injury issue is straight-forward. There was \na great deal of testimony concerning the claimant’s job duties related to whether the video shown \nat the hearing was an accurate representation of his actual job duties and, generally, whether the \nclaimant’s job duties were in fact rapid and repetitive. (T. 9-21;  39-142;  152-161).  However, \nwhether or not one finds the claimant’s job duties at Express Services were rapid and repetitive, \nthe totality of both the testimony and medical records reveal that the claimant’s job duties certainly \nmay not be accurately characterized as being the “major cause” of the claimant’s right wrist \n\nDwight Wilson, AWCC No. H203028 \n \n \n \n11 \nproblems  and  need  for  medical  treatment.  The  preponderance  of  the  evidence  demonstrates  the \n“major cause” of the claimant’s right wrist and hand symptoms was more likely than not his \ncervical spine problems, which resulted in right-sided radiculopathy well before the claimant ever \nwent to work for Express Services; the degenerative conditions of the claimant’s hand and right \nwrist and other joints; and other longstanding conditions. Consequently, it would constitute sheer \nspeculation and conjecture to find the claimant’s work duties at Express Services – whether or not \nthey were rapid and repetitive – were the major cause of the claimant’s alleged gradual onset injury \nto his right wrist. And speculation and conjecture, whether plausible or not, do not constitute proof. \nDena, supra. \n Therefore, for all the aforementioned reasons, I hereby make the following: \n                 FINDINGS OF FACT AND CONCLUSIONS OF LAW \n1. The Commission has jurisdiction of this claim.  \n 2. The stipulations contained in the prehearing order filed February 16, 2023, as well \n  as the additional stipulation to which the parties agreed at the hearing – all of which \n  the parties affirmed on the record at the hearing – hereby are accepted as facts.   \n \n 3. The claimant has failed to meet his burden of proof pursuant to the Act in    \n  demonstrating he sustained a specific-incident compensable injury to his right wrist \n  on March 21, 2022.   \n \n 4. The claimant has failed to meet his burden of proof in demonstrating he sustained \n  a gradual onset compensable injury which cukminated in disability on March 21,   \n  2022. Even if the claimant’s job were deemed to be rapid and repetitive within the \n  Act’s meaning, the preponderance of the evidence – especially the medical records \n  – reveal the job duties he performed at Express Services were not the “major cause” \n  of his longstanding, preexisting right wrist problems.   \n \n 5. The claimant’s attorney is not entitled to a fee on these facts. If they have not   \n  already done so the respondents hereby are ordered to pay the court reporter’s  \n\nDwight Wilson, AWCC No. H203028 \n \n \n \n12 \n  invoice within twenty (20) days of their receipt of this opinion and order. \n \n       IT IS SO ORDERED.   \n \n                                              \n \nMike Pickens \nAdministrative Law Judge \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \nMP/mp","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H203028 DWIGHT WILSON, EMPLOYEE CLAIMANT EXPRESS SERVICES, INC., EMPLOYER RESPONDENT AIN INS. CO./ SEDGWICK CLAIMS MG’T SERVICES, INC., INS CARRIER/TPA RESPONDENT OPINION AND ORDER FILED AUGUST 2, 2023 Hearing conducted on May 4, 2023, before the Arkansas W...","fetched_at":"2026-05-19T23:03:25.702Z","links":{"html":"/opinions/alj-H203028-2023-08-02","pdf":"https://labor.arkansas.gov/wp-content/uploads/WILSON_DWIGHT_H203028_20230802.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}