{"id":"alj-H203317-2023-06-06","awcc_number":"H203317","decision_date":"2023-06-06","opinion_type":"alj","claimant_name":"Mark Ausbrooks","employer_name":"Lexicon, Inc","title":"AUSBROOKS VS. LEXICON, INC. AWCC# H203317 JUNE 6, 2023","outcome":"granted","outcome_keywords":["granted:3"],"injury_keywords":["ankle","shoulder"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads//AUSBROOKS_MARK_H203317_20230606.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"AUSBROOKS_MARK_H203317_20230606.pdf","text_length":18179,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H203317 \n \nMARK AUSBROOKS, EMPLOYEE   CLAIMANT \n \nLEXICON, INC., EMPLOYER   RESPONDENT \n \nTRISTAR CLAIMS MANAGEMENT SERVICES, INC.,                            RESPONDENT \nCARRIER/ TPA   \n \n \nOPINION FILED JUNE 6, 2023 \n \nHearing before Administrative Law Judge Steven Porch on May 4, 2023, in Little Rock, \nPulaski County, Arkansas. \n \nClaimant represented by Mr. Gary Davis, Attorney at Law, Little Rock, Arkansas. \n \nRespondents   represented   by   Ms.   Melissa   Wood,   Attorney   at   Law,   Little   Rock, \nArkansas. \n \n \nSTATEMENT OF THE CASE \n A prehearing telephone conference was held on this claim on Wednesday, March \n1,  2023.    The  claimant  was  represented by  Mr.  Gary  Davis,  Attorney-at-Law  of  Little \nRock, Arkansas, respondents were represented by Ms. Melissa Wood, Attorney-at-Law \nof  Little  Rock,  Arkansas.    The  parties  submitted  prehearing  information  filings  prior  to \nthis conference. \nSTIPULATIONS \n By  agreement  of  the  parties,  the  stipulations  applicable  to  this  claim are  as \nfollows: \n1. The Arkansas Workers’ Compensation Commission has jurisdiction \nof the within claim. \n  \n2. An  employer/employee  relationship  existed  on  March  24,  2022, \nwhen the claimant sustained a compensable injury. \n \n\nAUSBROOKS – H203317 \n \n2 \n  \nISSUES \n By  agreement  of  the  parties,  the  issue  to  be  presented  at  the  hearing    is  as \nfollows: \n1. Temporary total disability (TTD) \n \n \nCONTENTIONS \n \nThe  claimant’s  and respondents’  contentions  are  set  out  in  their respective \nresponse to the Prehearing Questionnaire. Said contentions are as follows: \nClaimant: Claimant  contends  that  he  sustained  compensable  injuries  to his \nright  leg,  ankle,  and  foot  on  March  24,  2022.  Claimant  further  contends  that  he  is \nentitled  to  payment  of  temporary  total  disability  (TTD)  benefits  for  the  period  of  March \n24, 2022, through a date yet to be determined. That payment of these benefits has been \ncontroverted for purposes of attorney’s fees. Claimant also contends that he is entitled \nto payment of medical treatment for December 6, 2022, surgery. \nRespondent: Respondents  contend  that  all  appropriate  benefits  are  being  paid \nregarding  this  matter.  The  claim  has  been  accepted  at  this  time  as  medical only. \nRespondents provided light duty for claimant and would have continued to do so but for \nhis  termination  on  April  8,  2022,  for  cause.  Respondents  further  contend  that  the \nsurgery performed by Dr. Head was not reasonable and necessary associated with the \nMarch 24, 2022, injury.   \n \n \n\nAUSBROOKS – H203317 \n \n3 \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n After reviewing the record as a whole, including medical reports, documents, and \nother  matters  properly  before  the  Commission,  and  having  had  an  opportunity  to  hear \nthe  testimony  of  the  witnesses  and  to  observe  their  demeanor,  I  hereby  make  the \nfollowing  findings  of  fact  and  conclusions  of  law  in  accordance  with  Ark.  Code  Ann.  § \n11-9-704 (Repl. 2012): \n1. The  Arkansas  Workers’ Compensation  Commission  has  jurisdiction  over \nthis claim. \n2. The stipulations set forth above are reasonable and are hereby accepted. \n3. Claimant  has  proven  by  a  preponderance  of  the  evidence  that  he  is \nentitled  to  additional  temporary  total  disability  benefits  for  the  following \nperiods:  April 7, 2022, to a date to be determined. \n4.        Claimant’s  December  6,  2022,  ankle  surgery  is  directly  related  to  his \nMarch 24, 2022, injury and shall be paid by the Respondents.  \n5. Claimant has proven by a preponderance of the evidence that his attorney \nis  entitled  to  a  controverted  attorney  fee  on  his  temporary  total  disability \nbenefits that have been awarded herein, pursuant to Ark. Code Ann. § 11-\n9-  715 (Repl. 2012). \nCASE IN CHIEF \nSummary of Evidence \n The  witnesses  were  Mark  Ausbrooks  (Claimant),  Joe  Minton,  Kember  Farnam, \nSteve Bineen, and Renay Bonds. Along with the Prehearing Order discussed above, the \n\nAUSBROOKS – H203317 \n \n4 \nexhibits  admitted  into  evidence  in  this  case  were  a  compilation  of  Claimant’s  medical \nrecords, non-medical documents, and all other documents admitted properly before the \nCommission.  I  have  blue-backed  to  the  record  the post-hearing briefs  of  Claimant  and \nRespondents, filed on May 12, 2023, and May 15, 2023, respectively. \nAdjudication \nA. Temporary Total Disability \n Introduction.    Claimant,  who  was  employed  by  Lexicon  Holding  Company  as  a \nconstruction  worker,  sustained  a  compensable  injury  to  his  right  ankle  (diagnosed \nachilles rupture) on March 24, 2022.  Respondents accepted this injury as compensable \nand  paid  workers’  compensation  benefits  pursuant  thereto,  including  medical  benefits. \nIn  this  proceeding,  Claimant  is  seeking,  among  other  things,  temporary  total  disability \nbenefits.  Respondents dispute his entitlement to them. \n Standards.  An employee who suffers a compensable scheduled injury is entitled \nto  temporary  total  disability  compensation  for  that  period  within  the  healing  period  in \nwhich  he  has  suffered  a  total  incapacity  to  earn  wages.   Ark.  State  Hwy.  &  Transp. \nDept.  v.  Breshears,  272  Ark.  244,  613  S.W.2d  392  (1981).    The  healing  period  ends \nwhen  the  underlying  condition  causing  the  disability  has  become  stable  and  nothing \nfurther in the way of treatment will improve that condition.  Mad Butcher, Inc. v. Parker, \n4  Ark.  App.  124,  628 S.W.2d  582  (1982).    Also,  a  claimant must demonstrate  that  the \ndisability lasted more than seven days.  Id. § 11-9-501(a)(1).  Claimant must also prove \nhis entitlement to temporary total disability benefits by a preponderance of the evidence.  \nArk.  Code  Ann.  §  11-9-705(a)(3)  (Repl.  2012).    This  standard  means  the evidence \n\nAUSBROOKS – H203317 \n \n5 \nhaving  greater  weight  or  convincing  force.   Barre  v.  Hoffman,  2009  Ark.  373,  326 \nS.W.3d  415;  Smith  v.  Magnet  Cove  Barium  Corp.,  212  Ark.  491,  206  S.W.2d  442 \n(1947). \n A claimant’s testimony is never considered uncontroverted.  Nix v. Wilson World \nHotel,  46  Ark.  App.  303,  879  S.W.2d  457  (1994).    The  determination  of  a  witness’ \ncredibility and how much weight to accord to that person’s testimony are solely up to the \nCommission.  White v. Gregg Agricultural Ent., 72 Ark. App. 309, 37 S.W.3d 649 (2001).  \nThe  Commission  must  sort  through  conflicting  evidence  and  determine  the  true  facts.  \nId.  In so doing, the Commission is not required to believe the testimony of the claimant \nor  any  other  witness  but  may  accept  and  translate  into  findings  of  fact  only  those \nportions of the testimony that it deems worthy of belief.  Id. \n Evidence.  Claimant, who is a 51-year-old mechanic, came down off a ladder and \nstepped wrong causing injury to the right ankle. The Respondents treated this claim as \na  compensable  injury.  The  Respondents  placed Claimant  on  light  duty.  The  nurse  for \nthe  Respondents’  company  later  allowed  Claimant  to  return  to  his  HVAC  construction \nsite  work.  Claimant  was  fired  3  days  later.  Respondents  testified  that  Claimant  was \nterminated for cause due to tardiness and job performance. However, according to Joe \nMinton,  Claimant’s  direct  supervisor,  Respondent  did  not  follow  its  own  policies  and \nprocedures  when  terminating  Claimant’s  employment.  Claimant’s  employment  should \nhave  been  terminated  only  after a  verbal  warning  followed  by  a  written  warning  then \ntermination. The respondents did not engage in any of these pre-termination procedures \n\nAUSBROOKS – H203317 \n \n6 \nwhen  dealing  with  Claimant. Rather  Claimant asked  his  direct  supervisor,  Joe  Minton, \nabout his future with the company and in return Claimant was immediately terminated. \nThe  Respondents’  reasonings  for  the  quick  termination  of  Claimant  was  that \nClaimant  had  poor  job  performance  and  tardiness.  The  Respondents  made  clear  that \njob performance and tardiness had always been a problem with Claimant pre-accident. \nThis is a concerning fact that Respondents retained a poor performing employee where \nothers  had  to  constantly  correct  his  work  to  firing  the  employee  approximately  two \nweeks later.\n1\n  \n Discussion.    Claimant has  argued  that  he  is entitled  to temporary  total  disability \nbenefits  from  March  24,  2022,  to  a  date  to  be  determined.  Respondents  argue  in  the \nnegative due  to  Claimant’s termination  for  cause  from his  employment.  I disagree  with \nRespondents’ logic.   \n In Tyson  Poultry  Co.  v.  Narvaiz,  2012  Ark.  118,  388  S.W.3d  16,  which  controls \nhere,   the   claimant   suffered   a   compensable   left   shoulder   injury—which   is   an \nunscheduled  injury.    He  returned  to  work  at  light  duty.    After  doing  so,  he was \nsuspended and ultimately terminated for calling his supervisor “an insulting, derogatory, \nand vulgar name.”  The respondent argued that their liability for temporary total disability \nbenefits  ended  following  his  firing.    The  Arkansas  Supreme  Court  described  its \nargument as follows: \nAppellant [the respondent] asserts that there is not substantial evidence to \nsupport  the  Commission’s  finding  that  Appellee  [the  claimant]  proved  he \nwas  entitled to temporary-total-disability benefits.   Because  Appellee  was \n \n1\n Claimant has not asked the Commission to address whether this claim involved retaliation by \nRespondent and subject to penalties pursuant to Ark. Code Ann. § 11-9-107. \n\nAUSBROOKS – H203317 \n \n7 \nperforming  light-duty  work  at  the  time  his  employment  was  terminated, \nand  because  Appellant  offered  testimony  that  Appellant  would  have \ncontinued  to  make  the  light-duty  work  available  to  Appellee  absent  his \nmisconduct, Appellant  contends  that Appellee  did  not meet his  burden of \nproving  that  he  was  totally  incapacitated  from  earning  gainful  wages  due \nto  his  compensable  injury.    Any  incapacity  from  earning  wages,  argues \nAppellant, stemmed from Appellee’s misconduct and not from his injury. \n \nNarvaiz, supra. \n The  appellant  in Narvaiz  used  this  position  to  argue  further  that  the  appellee’s \ntermination for misconduct amounted to an abridgement of  Ark. Code Ann. § 11-9-526 \n(Repl. 2012), which provides: \nIf any injured employee refuses employment suitable to his or her capacity \noffered to or procured for him or her, he or she shall not be entitled to any \ncompensation during the continuance of the refusal, unless in the opinion \nof the Workers’ Compensation Commission, the refusal is justifiable. \n \nWhile  Respondents  here  have  not  raised  §  11-9-526,  that  is  a “distinction  without  a \ndifference.”  They are asserting, as was done in Narvaiz, that (1) Claimant was released \nto  light  duty;  (2)  they  had  work  available  for  Claimant;  and  (3)  but  for  Claimant’s \ntermination,  he  would  have been  working  there  in  that  capacity  during  the  period  for \nwhich he is seeking temporary total disability benefits. \n But the Arkansas Supreme Court expressly rejected this argument, reasoning: \n[T]he  misconduct  and  insubordination  [by  the  appellant/claimant]  are  just \nthat, misconduct and insubordination, and nothing more.  After committing \nthe  misconduct  and  suffering  the  suspension,  Appellee  returned  to  work.  \nIt  was  then  Appellant’s  option  to  terminate  his  employment  or  allow \nhim  to  continue  working  light  duty.  Regardless  of  Appellant’s  choice, \nAppellee was still within his healing period. \n \nNarvaiz, supra.    (Emphasis  added)  See  also  Packers  Sanitation  Svcs.  v.  Quintanilla, \n2017 Ark. App. 213, 518 S.W.3d 701; Superior Indus. v. Thomaston, 72 Ark. App. 7, 32 \n\nAUSBROOKS – H203317 \n \n8 \nS.W.3d  52  (2000).    Claimant  in  this  case,  as  Joe  Minton  testified,  engaged  in  conduct \nthat led to his termination, such as poor job performance and tardiness. Mr. Minton also \ntestified  that  if  Claimant  had  not  approached  him  that  day  asking  about  his  future,  he \nwould  still  be  working.  Respondents  cite  the Roark  case  as  controlling  in  this  matter. \nHowever, the issue here is different than the situation in Roark v. Pocahontas Nursing & \nRehab., 95 Ark. App. 176, 235 S.W.3d 527 (2006), where the firing was for violation of \nthe employer’s attendance policy, which provided for immediate termination.  There, the \nArkansas  Court  of  Appeals  found  that  the  claimant  could  not  establish  entitlement  to \ntemporary  total  disability  benefits  following  the  termination.    In  this  matter,  Claimant’s \ndirect supervisor, Joe Minton, clearly had the discretion concerning whether to terminate \nClaimant; nothing in evidence shows that he engaged in conduct that made termination \nautomatic or virtually so. \nB.  Additional Medical Treatment \n Introduction.  The  Claimant  was  terminated  from  his  job  on  April  8,  2022. \nRespondents  stopped  paying  benefits  to  the  Claimant  after  his  termination.  The \nRespondents view Claimant’s surgery as additional medical treatment for a pre-existing \ncondition.  Respondents  tried  to  piece  together  Claimant’s  medical  history  on  his  ankle \ninjury by reviewing MRIs from April 21, 2022, and August 1, 2022. The Respondents put \nforward  the  opinion  of  Dr.  Justin  Long,  Radiologist,  for  the  proposition  that  the MRI \nexams  suggest  that  the  surgery  would  be  treating  the  continued  tendinopathy  and \nreducing the risk for recurrent tear. The purpose of Dr. Long’s opinion is to show a pre-\nexisting injury on the part of the claimant.  \n\nAUSBROOKS – H203317 \n \n9 \nStandards.  A pre-existing infirmity does not disqualify a claim if the employment \naggravated,  accelerated,  or  combined  with  the  infirmity  to  produce  the  disability  for \nwhich  compensation  is  sought.   St.  Vincent  Med.  Ctr.  v.  Brown,  53  Ark.  App.  30,  917 \nS.W.2d  550 (1996).    “An  aggravation,  being a  new  injury  with  an  independent  cause, \nmust  meet  the  requirements  for  a  compensable  injury.”   Crudup  v.  Regal  Ware,  Inc., \n341  Ark.  804,  20  S.W.3d  900  (2000);   Ford  v.  Chemipulp  Process,  Inc.,  63  Ark.  App. \n260,  977  S.W.2d  5  (1998).    This  includes  the  prerequisite  that  the  alleged  injury  be \nshown  by  medical  evidence  supported  by  objective  findings.   See  Heritage  Baptist \nTemple v. Robison, 82 Ark. App. 460, 120 S.W.3d 150 (2003).  These standards are not \napplicable here. \nDiscussion.  A  claimant  may  be  entitled  to  additional  treatment  after  the  healing \nperiod  has  ended  if  it  is  geared  toward  management  of  the  compensable injury. \nSantillan v. Tyson Sales & Distribution, 2011 Ark. App. 634 (2011).  The healing period \nends  when  the  underlying  condition  causing  the  disability  has  become  stable  and \nnothing  further  in  the  way  of  treatment  will  improve  that  condition. Johnson  v.  Pat \nSalmon & Sons, Inc. 2011 Ark. App. 48 (2011). The question of when the healing period \nhas  ended  is  a  factual  determination  for  the  Commission. Id.  No  healing  period  has \nbeen  established  nor a maximum  medical  improvement  rate  has been  assigned to  the \nClaimant.  I  do  find  by  the  preponderance  of  the  evidence  that  Claimant’s  injury  was \ncontinuous  and  without  interruption  from  the  date  of  the  compensable  injury  until  his \nsurgery  and  beyond,  to  a  date  to  be  determined.  I  further  find  that  Claimant’s \ncompensable injury was a prime factor in Claimant’s need for surgery.  \n\nAUSBROOKS – H203317 \n \n10 \nWith that expressed, and out of thoroughness, I do find the change of physician \nrules  do  not  apply  in  this  matter.  No  evidence  has  been  presented  showing  that \nClaimant  received  the  required  notice  that  would  trigger  these  rules.  Arkansas  Code \nAnnotated § 11-9-514. \nAttorney  Fees.  Claimant  has  asserted  that  he  is  entitled  to  a  controverted \nattorney’s fee in this matter. One of the purposes of the attorney's fee statute is to put \nthe economic burden of litigation on the party who makes litigation necessary.  Brass v. \nWeller,  23  Ark.  App.  193,  745  S.W.2d  647  (1998).    In  this  case,  the  fee would  be  25 \npercent  (25%)  of  any  indemnity  benefits  awarded  herein,  one-half  of  which  would  be \npaid by Claimant and one-half to be paid by Respondents in accordance with See Ark. \nCode  Ann.  §  11-9-715  (Repl.  2012).   See Death  &  Permanent  Total  Disability  Trust \nFund v. Brewer, 76 Ark. App. 348, 65 S.W.3d 463 (2002). \n Discussion.  The evidence before me shows that Respondents have controverted \nClaimant’s  entitlement  to  temporary  total  disability  benefits  that  were  awarded  herein.  \nThus,  the  evidence  preponderates  that  his  counsel  is  entitled  to  the  fee  as  set  out \nabove. \nCONCLUSION AND AWARD \n Respondents  are  hereby  directed  to pay/furnish  benefits  in  accordance  with  the \nfindings of fact and conclusions of law set forth above.  All accrued sums shall be paid \nin a lump sum without discount, and this award shall earn interest at the legal rate until \npaid,  pursuant  to  Ark.  Code  Ann.  §  11-9-809  (Repl.  2012).   See Couch  v.  First  State \nBank of Newport, 49 Ark. App. 102, 898 S.W.2d 57 (1995). \n\nAUSBROOKS – H203317 \n \n11 \n Claimant’s  attorney  is  entitled  to  a  25  percent  (25%)  attorney’s  fee awarded \nherein,  one-half  of  which  is  to  be  paid  by  Claimant  and  one-half  to  be  paid  by \nRespondents in accordance with Ark. Code Ann. § 11-9-715 (Repl. 2012). \n IT IS SO ORDERED. \n \n       ________________________________ \n       Hon. Steven Porch \n       Administrative Law Judge","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H203317 MARK AUSBROOKS, EMPLOYEE CLAIMANT LEXICON, INC., EMPLOYER RESPONDENT TRISTAR CLAIMS MANAGEMENT SERVICES, INC., RESPONDENT CARRIER/ TPA OPINION FILED JUNE 6, 2023 Hearing before Administrative Law Judge Steven Porch on May 4, 2023, in Little Rock, Pu...","fetched_at":"2026-05-19T23:05:58.509Z","links":{"html":"/opinions/alj-H203317-2023-06-06","pdf":"https://labor.arkansas.gov/wp-content/uploads//AUSBROOKS_MARK_H203317_20230606.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}