{"id":"alj-H203628-2023-01-31","awcc_number":"H203628","decision_date":"2023-01-31","opinion_type":"alj","claimant_name":"William Holmes","employer_name":"Conagra Foods, Inc","title":"HOLMES VS. CONAGRA FOODS, INC. AWCC# H203628 JANUARY 31, 2023","outcome":"denied","outcome_keywords":["granted:1","denied:4"],"injury_keywords":["shoulder","repetitive","back","rotator cuff","neck"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/HOLMES_WILLIAM_H203628_20230131.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"HOLMES_WILLIAM_H203628_20230131.pdf","text_length":30690,"full_text":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO.  H203628 \n \n \nWILLIAM W. HOLMES, Employee CLAIMANT \n \nCONAGRA FOODS, INC., Employer RESPONDENT \n \nACE AMERICAN INSURANCE CO./BROADSPIRE, Carrier/TPA RESPONDENT \n \n \n \n OPINION FILED JANUARY 31, 2023 \n \nHearing  before  ADMINISTRATIVE  LAW  JUDGE  ERIC  PAUL  WELLS  in  Russellville,  Pope \nCounty, Arkansas. \n \nClaimant represented by LAURA BETH YORK, Attorney at Law, Little Rock, Arkansas. \n \nRespondents represented by MELISSA WOOD, Attorney at Law, Little Rock, Arkansas. \n \n \n \n STATEMENT OF THE CASE \n \n On November 3, 2022, the above captioned claim came on for a hearing at  Russellville, \nArkansas.      A  pre-hearing  conference  was  conducted  on  August  30,  2022,  and  a  Pre-Hearing \nOrder  was  filed  on  September  13,  2022.      A  copy  of  the  Pre-Hearing  Order  has  been  marked \nCommission's Exhibit No. 1 and made a part of the record without objection. \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  relationship  of  employee-employer-carrier  existed  between  the  parties  on \nFebruary 12, 2022. \n 3.   The respondents have controverted the claim in its entirety. \n\nHolmes – H203628 \n \n \n-2- \n 4.      The  Claimant  was  earning  sufficient  wages  to  entitle  him  to  compensation  at  the \nweekly rates of $548.00 for temporary total disability benefits and $411.00 for permanent partial \ndisability benefits. \n 5.   The parties stipulate that if Claimant is able to prove his left shoulder injury to be a \ncompensable  injury,  the  Respondent  is  entitled  to  a  credit  for  short  term  disability  benefits  as \nprovided in the Arkansas Workers’ Compensation Act. \n By agreement of the parties the issues to litigate are limited to the following: \n1. Whether   the claimant sustained a compensable gradual onset injury to his left  \nshoulder culminating on or about February 11, 2022; or,  alternatively, whether he sustained a \nspecific injury to his left shoulder on February 11, 2022.  \n2. Whether Claimant is entitled to medical treatment. \n3. Whether Claimant is entitled to temporary total disability benefits from February \n12, 2022 to August 3, 2022. \n4. Whether Claimant’s attorney is entitled to an attorney fee. \n5. Respondents raise Lack of Notice as a defense to this claim. \n Claimant’s contentions are: \n“On  2/11/2022,  claimant  was  lifting  several  50-lb.  bags  onto  a \ntable.   He has done this  for 17 years.   On the day of the accident, \nhe  became  unable  to  lift  any  more  bags  due  to  pain  in  his  left \nshoulder.    Claimant  reported  the  injury  to  the  nurse,  but  his  claim \nwas denied in its entirety.  Claimant sought treatment on his own.  \nHe  had  an  MRI  to  his  left  shoulder,  and  it  revealed  a  tear.  \nClaimant underwent surgery. \n \nClaimant  contends  that  he  sustained  a  compensable  injury  in  the \nscope and course of employment and that he is entitled to medical \nbenefits, TTD and that his attorney is entitled to an attorney fee. \n \nAll other issues are reserved.” \n\nHolmes – H203628 \n \n \n-3- \n \n Respondents’ contentions are: \n \n“Respondents contend that Claimant did not suffer a compensable \ngradual onset or specific incident injury on 2/11/22 while working \nfor  Respondent/Employer.    The  Claimant  failed  to  provide  notice \nof a claimed injury until 5/16/22.  Respondents contend that in the \nevent   compensability   is   found,   they   would   not   be   liable   for \nbenefits until receipt of actual notice of a claimed injury.” \n \n \n The claimant in this matter is a 54-year old male that alleges he sustained a compensable \ngradual  onset  injury  to  his  left  shoulder  culminating  on  or  about  February  11,  2022;  or, \nalternatively,  a  compensable  specific  incident  injury  to  his  left  shoulder  on  February  11,  2022.  \nThe  claimant  was  employed  by  the  respondent  employer  on  February  11,  2022,  and  had  been \nemployed  by  the  respondent  employer  for  many  years.    The  respondent  employer  is  in  the \nbusiness  of  producing  pre-made  food  or  meals  for  consumers.    The  claimant  worked  in  one  of \nthe respondent employer’s production plants as a spice utility prep.  In his job as a spice utility \nprep the claimant would insert large amounts of different types of spices into a blending machine \nthat  would  mix  or  blend  the  spices  together  for  the  food  products  being  produced  in  the \nrespondent  employer’s  plant.    At  the  hearing  in  this  matter  the  claimant  gave  a  detailed \ndescription of the process he would go through in performing his job duties mixing spices.  I will \nsummarize the pertinent portions of that testimony.  The claimant testified that he would arrive at \nwork, clock in, and gather his needed supplies including  Kevlar gloves, knife, hair net, smock, \napron, and face mask.  The claimant would also retrieve a boat paddle that he used to clean out \nthe blender that the spices were poured into.  After retrieving those supplies, the claimant would \nthen use a forklift to retrieve a pallet that normally contained 1200 pounds of spices in 50-pound \nbags.  This pallet of 24 50-pound bags equaling 1200 pounds is called a blend.  Among those 50-\n\nHolmes – H203628 \n \n \n-4- \npound bags there is a variety of different spices to be mixed together, but all of the bags weighed \n50  pounds.    I  note  that  sometimes  the  pallets  or  blends  weighed  2000  pounds  instead  of  1200 \npounds and contained 40 50-pound bags instead of 24 50-pound bags. \n The  claimant  would  use  a  forklift  to  move  the  pallet  or  blend  to  a  room  in  the  facility \nwhich contained a machine called a “river blender.”  This is a large machine that mixes all of the \nspices  together  for  use  in  food  production.    The  claimant  would  place  the  pallet  or  blend    on \nsome sort of spring-loaded lift that would raise the pallet or blend up to the height of the table on \na  platform  above  the  river  blender.    The  claimant  would  then  ascend  steps  to  the  platform  and \ntake  the  50-pound  bags  off  of  the  pallet  or  blend  and  place  them  on  the  table.    When  the  50-\npound  bag  is  on  the  table  the  claimant  would  use  his  knife  to  remove  the  outer  bag  from  the \nspice, a process the claimant called stripping.  The claimant would then throw the outer bag away \nin  a  receptacle  underneath  him  and  pour  the  contents  of  the  sack  which  at  that  point  were  still \ncontained in a secondary bag into a hopper of the river blender.  The claimant would repeat this \nprocess until the pallet or blend was completed.  The claimant testified that four to five times a \nday he would have to use the canoe paddle to clean out the river blender as this had to be done \nwhen  the  spice  recipe  changed  for  different  food  products.    The  claimant  testified  that  he \nnormally  worked  an  eight-hour  day,  but  often  worked  10  or  12  hour  days.    The  claimant  also \ntestified that he normally did 12 pallets or blends per day, but often did 16 or 18 pallets or blends \nper day. \n On direct examination the claimant was asked about his left shoulder difficulties and his \nreporting to his employer about those difficulties as follows: \n  Q And so tell us what transpired in February of 2022. \n \n  A Well, I started noticing pain in my shoulder, right here, \n\nHolmes – H203628 \n \n \n-5- \n  the left shoulder I had the surgery on.  I just thought, you \n  know, it was just a pulled muscle or something, so I never \n  went to the nurse or nothing.  I just tolerated it.  So it began \n  to start burning and getting worse, so I went and told my \n  supervisor Tyler that I was going to go see the nurse,  \n  which she is here right now.  I went and seen Lisa. \n \n  Q Let me ask you this.  Did you tell Tyler that your \n  shoulder was hurting –  \n \n  A Yes, ma’am, when I was – \n \n  Q Let me finish my question.  I want to make sure you \n  understand all of it.  Okay? \n \n   Did you tell Tyler that your shoulder was hurting  \n  because of a work injury? \n \n  A No, I did not.  I just told him I was going to see the \n  nurse; that my shoulder was hurting. \n \n  Q And you mentioned that Lisa is in the courtroom \n  with us today; correct? \n \n  A Yes, ma’am, she is. \n \n  Q Now, when you went to see Lisa, did you tell her \n  your shoulder was hurting? \n \n  A Yeah.  She sent me to my family doctor. \n \n  Q Now, what transpired on February 11\nth\n, 2022?  Did \n  your pain get better, get worse, or stay the same.  What was \n  different about February 11\nth\n? \n \n  A Can you rephrase the question again; please? \n \n  Q Sure.  You mentioned that when your spice blend \n  changed and they added more pallets, that’s when your \n  shoulder began to hurt.  Is that correct? \n \n  A Yes, that’s correct. \n \n  Q And do you know approximately how long it was \n  before February 11\nth\n that they added those pallets? \n\nHolmes – H203628 \n \n \n-6- \n \n  A No, I do not. \n \n  Q Okay. \n \n  A They added more and it started hurting, and I  \n  should have reported it sooner but I didn’t. \n \n  Q We’re going to get to that.  On February 11\nth\n, what \n  were you doing that made you stop and tell Tyler you \n  needed to get medical treatment? \n \n  A Because I couldn’t lift the bag. \n \n  Q What were you doing? \n \n  A I was lifting the bag and putting the spices in the \n  hole.   \n \n  Q So you were lifting a bag – \n \n  A It started hurting worse. \n \n  Q And it got worse? \n \n  A (Witness nods.) \n \n  Q And you went to see Lisa? \n \n  A Uh-huh. \n \n  Q Is that a “yes?” \n \n  A Yes. \n \n  Q Did you tell Lisa at that time that you saw her, that \n  first time, that this was a work injury? \n \n  A Yes, I believe I did. \n \n  Q Was some workers’ comp paperwork offered to you \n  that day? \n \n  A No. \n \n\nHolmes – H203628 \n \n \n-7- \n  Q What did Lisa tell you to do? \n \n  A She just told me to go see my family physician. \n \n \n On  cross-examination,  the  claimant  was  questioned  about  his  reporting  of  his  left \nshoulder difficulties as follows: \n  Q In your deposition, my law partner was asking you \n  about when the pain started around February of ’22, and  \n  you stated that your shoulder was hurting for several \n  weeks, you ignored it, and didn’t say anything.  Is that \n  right? \n \n  A You are correct. \n \n  Q But then on February 11\nth\n that’s when you went \n  to Tyler because the pain was more severe; is that right? \n \n  A Yes, it got worse.  It was getting to where I couldn’t \n  take it. \n \n  Q And you told us today that you admit that you \n  didn’t tell Tyler that it was a work injury that led to that \n  shoulder problem; is that correct? \n \n  A No, I just told him I was going to see Lisa, going \n  to the nurse.  I didn’t say anything about that. \n \n  Q But  you were asked earlier whether you told Lisa \n  that it was a work injury, and you said that you thought \n  you did.  Is that right? \n \n  A I thought I did. \n \n  Q At the time of your deposition, though, you were \n  asked about that, and I’m on page – starting at the bottom \n  of page 22 you were talking about going to talk to a nurse,  \n  and you said her name was Lisa? \n \n  A Yeah, she’s here. \n \n  Q And you were asked, “What did you tell Lisa?”   \n  Your response was, “I said have severe shoulder pain.  I \n\nHolmes – H203628 \n \n \n-8- \n  think I need to see a doctor.” \n \n  A Yes, that’s what I told her. \n \n  Q And on page 23 it says, “Did you tell her it was \n  work-related?”  Your response was, “No, ma’am.”  Is \n  that correct? \n \n  A No, I didn’t tell her  - I just told her I needed to \n  see a doctor. \n \n  Q So you didn’t say at that time it was work-related? \n \n  A No. \n \n The  claimant  was  seen  by  his  primary  care  physician,  Dr.  Allan  Kirkland,  on  February \n11, 2022.  Following is a portion of that medical record found at Claimant’s Exhibit 1, page 2: \n  HPI \n  Nurse’s Note:  53 y/o male unaccompanied here with c/o \n  left shoulder pain.  states pain in left shoulder x1wk.  pain \n  radiates to deltoid area.  pain is 10/10 when doing any \n  activity or movement with left arm.  heat helps with the \n  pain.  didn’t feel anything pop in shoulder, thinks it from \n  over use of arm, no pain when resting.  works at conagra \n  and does repetitive lifting 50 lb. bags and uses left arm \n  mostly when pouring the bags.  has paperwork that needs \n  to be completed before he can come back to work. \n \n  Provider’s Note:  This 53-year-old male presents to clinic \n  today complaining of left shoulder pain.  Symptoms started \n  about a week ago.  He has a repetitive motion job as above \n  and feels that it started at work.  There was no acute injury. \n  Pain is severe with forward flexion or abduction at the \n  shoulder.  He denies any crepitus or prior injury.  The right \n  shoulder is doing fine. \n \n \nThe  claimant  was  taken  off  work  by  Dr.  Kirkland  until  March  3,  2022,  and  given  a  follow-up \nappointment for February 25, 2022. \n\nHolmes – H203628 \n \n \n-9- \n At  the  claimant’s  February  25,  2022  appointment  with  Dr.  Kirkland  the  claimant  was \nordered to physical therapy and for a consultation with Dr. Jeff Cartwright who is an orthopedist.  \nDr.  Cartwright  ordered  an  MRI  of  the  claimant’s  left  shoulder  which  was  performed  at  St. \nMary’s Regional Hospital in Russellville, Arkansas on April 7, 2022.  Following is a portion of \nthat  diagnostic  testing  report  authored  by  Dr.  Jeffrey  Hale  found  at  Claimant’s  Exhibit  1,  page \n16: \n  FINDINGS: \n  \n  Acromioclavicular joint and subacromial space:  Hypertrophy \n  and signal abnormality with some mild edema within the \n  joint and a moderate size inferior osteophyte which contacts \n  the supraspinatus around the musculotendinous junction area. \n \n  Glenohumeral joint and osseous structures:  Edema on each \n  side of the AC joint.  Glenohumeral joint appears intact. \n \n  Rotator cuff:  Mild signal abnormality within the distal  \n  infraspinatus tendon and at the insertion site.  Moderate \n  extensive intermediate intensity signal abnormalities in \n  the distal half of the supraspinatus tendon with a positive \n  fibers though there are intact fibers.  Trace bit of fluid \n  signal abnormality in the subacromial subdeltoid bursa. \n  Mild diminished subacromial space distance.  Subscapu- \n  laris appears normal. \n \n  Long biceps tendon:  Unremarkable. \n \n  Glenoid labrum:  Unremarkable. \n \n  IMPRESSION:  Subaspinatus tendon partial thickness tear. \n  2.  Infraspinatus tendinopathy. \n  3.  Marked AC joint arthrosis \n \n The  claimant  saw  Dr.  Cartwright  on  April  13,  2022.    Following  is  a  portion  of  that \nmedical record found at Claimant’s Exhibit 1, page 18: \n  William is a 53 year old gentleman referred by Dr. Kirkland \n  for evaluation of his left shoulder.  He reports left shoulder \n\nHolmes – H203628 \n \n \n-10- \n  pain.  He denies neck pain.  He denies left upper \n  extremity paresthesias.  He reports weakness in the \n  left shoulder.  He denies any history of dislocation. \n  He reports subacromial crepitus in the left shoulder \n  with motion of the left arm.  He reports pain in the \n  left shoulder with motion of the left arm overhead. \n  He reports nocturnal left shoulder pain and rotator \n  cuff nesting.  He has difficulty carrying and lifting \n  objects with the left upper extremity especially if the \n  load is held away from the body.  He reports a positive \n  milk jug sign.  He reports no significant improvement \n  after physical therapy.  He reports discomfort with \n  overhead throwing type motions.  He smokes daily \n  but is not a diabetic.  He is left-hand dominant.  He \n  denies any history of injury but feels that overuse \n  ConAgra may have contributed.  He was taken off \n  work a month ago by Dr. Kirkland. \n \n     *** \n  My impression clinically is that the patient’s left \n  shoulder suffers with a combination of issues which  \n  seem to include subacromial impingement, subacromial \n  bursitis, bicipital tendinitis, high-grade partial thickness \n  tearing of the supraspinatus, probable low grade partial \n  thickness tearing of the subscapularis, arthritis of the \n  acromioclavicular joint but I cannot rule out any labral \n  pathology given the guarding on examination. \n \n  His MRI revealed per the report (JH), partial thickness \n  tear of the supraspinatus, marked ACJ arthritis, and \n  tendinopathy of the infraspinatus.  My review of those \n  images suggests prominent arthritis of the AC joint, \n  subacromial impingement high grade partial thickness \n  tearing of the supraspinatus, degenerative anterior labral \n  tearing, biceps partial thickness tearing/tendinosis, partial \n  thickness tearing of the subscapularis, and what appears to \n  be a degenerative tear of the anterior aspect of the superior \n  labrum extending into the anterior labrum.  I would suggest \n  he consider arthroscopy given that he has tried therapy with \n  no benefit. \n \n  We completed pre-op for left shoulder arthroscopy.  I do  \n  believe that some of his shoulder pain may be emanating  \n  from his neck and I stressed to the patient that he should \n  return to see Dr. Kirkland about management of his neck \n\nHolmes – H203628 \n \n \n-11- \n  as this is not something I manage.  Notwithstanding, he \n  does have left shoulder pathology as well and I do think \n  he will benefit substantially from left shoulder surgery. \n  In all likelihood, however it will not result in complete \n  relief of pain as the shoulder recovering will likely not \n  improve whatever pain is emanating from his neck. \n \n On April 28, 2022 the claimant underwent surgery on his left shoulder at the hands of Dr. \nCartwright.    Following  is  a  portion  of  that  operative  report  found  at  Claimant’s  Exhibit,  pages \n22-24: \n  PRE-OP DIAGNOSIS:  LEFT shoulder internal derangement \n \n  POST-OP DIAGNOSIS: \n  Opioid Naïve – no opioid RX per PMP within the last 6 months \n    \n  Subacromial impingement of the LEFT shoulder \n \n  High grade partial thickness tearing of the supraspinatus of the \nLEFT shoulder \n \n  Low grade partial thickness tearing of the subscapularis of the \nLEFT   \n  \n  Bicipital tendonitis without obvious tendinosis or tearing LEFT \n      *** \n  PROCEDURE: \n  Arthroscopic anterior labral repair and capsulorraphy of the \n  LEFT shoulder \n \n  Arthroscopic rotator cuff repair of the SUPRASPINATUS \n  (superior rotator cuff) of the LEFT shoulder \n \n  Arthroscopic repair of a type 2 SLAP lesion of the LEFT \n  Shoulder \n \n  Arthroscopic extensive debridement of synovium, posterior \n  labrum, subscapularis, and subacromial bursa of the LEFT \n  shoulder \n \n  Arthroscopic lysis of the adhesions and manipulation under \n  Anesthesia of the  LEFT shoulder \n\nHolmes – H203628 \n \n \n-12- \n After  the  claimant’s  surgical  intervention  he  was  given  aftercare  including  physical \ntherapy.  The claimant was released to return to work on August 3, 2022 and returned to work for \nthe  respondent  employer  in  the  same  position.    At  the  time  of  the  hearing  in  this  matter  the \nclaimant was still employed in that position with the respondent employer.   \n The  claimant  has  alleged  a  compensable  gradual  onset  injury  to  his  left  shoulder  in  this \nmatter.    In  order  to  prove  a  compensable  gradual  onset  injury  to  his  left  shoulder  the  claimant \nmust  prove  (1)  that  the  injury  arose  out  of  and  in  the  course  of  his  employment;  (2)  that  the \ninjury caused internal or external physical harm to his body, which required medical services or \nresulted in death or disability; (3) that the injury was caused by rapid repetitive motion; (4) that \nthe injury was the major cause of the disability or need for treatment; and, (5) that the injury was \nestablished by medical evidence supported by objective findings.  \n Here, given the testimony of the claimant, it seems reasonable that the injury arose out of \nand  in  the  course  of  his  employment.    The  MRI  and  surgical  records  of  the  claimant  display \ninternal physical harm to the body, specifically the claimant’s left shoulder, by objective medical \nevidence.   However,  I do not believe the claimant can meet the  requirement in proving that the \ninjury  was  caused  by  rapid  repetitive  motion.   Malone  v.  Texarkana  Public  Schools,  333  Ark. \n343,  349-50,  969  S.W.  2d  644,  647  (1998);  Ark.  Code  Ann.  §11-9-102(5)(A)(ii)(a).      In \nanalyzing  whether  an  injury  is  caused  by  rapid  repetitive  motion,  the  standard  as  set  out  in \nMalone  is  a  two-pronged  test:    (1)    the  tasks  must  be  repetitive,  and  (2)  the  repetitive  motion \nmust  be  rapid.   Malone,  333  Ark.  at  350,  969  S.W.  2d  at  647.    As  a  threshold  issue,  the  tasks \nmust  be  repetitive,  or  the  rapidity  element  is  not  reached.   Id.,  969  S.W.  2d  at  647.    Arguably, \neven repetitive tasks and rapid work, standing alone, do not satisfy the definition; the repetitive \ntasks must be completed rapidly. Id., 969 S.W. 2d at 647-48. \n\nHolmes – H203628 \n \n \n-13- \n The  claimant  gave  clear  and  consistent  testimony  that  he  was  normally  tasked  with \nprocessing 12 pallets or blends on a normal work day and worked an eight-hour shift.  However, \nthe claimant also testified that he sometimes processed 16 or 18 pallets or blends during the work \nday, but would work 10 or 12-hour shifts.  The pallets or blends would be made up of 50-pound \nbags of spices that would normally total 1200 pounds, meaning the pallet or blend would contain \n24  50-pound  bags.    However,  the  claimant  would  process  some  pallets  or  blends  that  totaled \n2000  pounds  which  contained  40  50-pound  bags.    It  was  the  claimant’s  testimony  that  he  did \nmore 1200 pound pallets or blends than 2000 pound pallets or blends. \n At  the  hearing  in  this  matter  the  claimant  gave  direct  examination  testimony  that  he \nwould  usually  process  four  pallets  or  blends  per  hour.  Following  is  that  direct  examination \ntestimony: \n  Q Now, approximately how many pallets do you deliver \n  to your area each day? \n \n  A Well, we usually run – I can do four an hour. \n \n  Q Four pallets an hour? \n \n  A Yes. \n \n  Q And those pallets, do they range in weight from 1200 \n  to 2000? \n \n  A Uh-huh, 2000 pounds. \n \n  Q And each one of the bags that you’re lifting –  \n \n  A Are 50 pound bags; correct. \n \n  Q Does it matter what the product is if the bag weighs  \n  more or less? \n \n  A No, none of them weigh less. \n \n\nHolmes – H203628 \n \n \n-14- \n  Q         Do any of them weigh more? \n \n  A No. \n \n  Q So every bag all day long is 50 pounds? \n \n  A Fifty pounds; yes. \n \n This Administrative Law Judge questioned the claimant about his job duties and the type \nand  amount  of  pallets  or  blends  he  processes  on  a  daily  basis.    In  that  exchange  the  claimant \nagain asserted that he processes four pallets or blends per hour as follows: \n  Q How many pallets, and you may not know the answer \n  to this; and if you don’t, that’s fine.  I don’t want you to make \n  it up.  I want you to tell me if you know or if you don’t know. \n  Roughly, how many pallets a day weigh 1200 pounds and how \n  many pallets a day weigh 2000 pounds? \n \n  A I don’t know the answer, Your Honor. \n \n  Q Do you do more 1200 pallets than 2000 pallets? \n \n  A Yes, sir.  Usually when we do the 2000 pound batches, \n  we do them all at once. \n \n  Q And so do you do 2000 pound pallets every day? \n \n  A Every other day. \n \n  Q So do you do fewer of those than you do of the 1200 \n  pallets, 1200 pound pallets? \n \n  A Yes. \n \n  Q Now, I believe I heard your testimony right earlier that \n  you could do four blends –  \n \n  A An hour, yes, on that batch. \n \n  Q And how fast per – \n \n  A Four an hour.  I can do four an hour. \n \n\nHolmes – H203628 \n \n \n-15- \n  Q You can do four blends an hour? \n \n  A (Witness nods.) \n \n  Q And by doing a blend, that means that you leave the  \n  spice room that you’re in or leave the room where you mix, - \n \n  A Yeah, I go to get another one. \n \n It  appears  from  the  whole  of  the  claimant’s  testimony  that  he  on  more  days  than  not \nprocessed 12 pallets or blends during an eight-hour shift.   However, the claimant is also called \nupon to process 16 and 18 batches per day at times and can work 10 or 12-hour shifts.  Given the \nclaimant’s testimony that he can process four pallets or blends per hour, that would calculate into \nprocessing  12  pallets  or  blends  over  the  course  of  three  hours  in  an  eight-hour  work  day.    The \nclaimant  would  process  16  pallets  or  blends  during  a  10-hour  work  day  in  four  hours  and  18 \npallets  or  blends  in  a  12-hour  work  day  in  4.5  hours.    It  is  certain  that  the  claimant  gave \ntestimony that demonstrated he would be working at a rapid pace.  However, the threshold issue \nis  that  the  task  must  be  repetitive.    It  is  difficult  to  find  it  reasonable  that  some  operation  or \nmovement  of  the  body  is  repetitive  when  that  operation  or  movement  only  occurs  during  well \nless than half of the workday.   \n Given  a  normal  12  pallet  or  blend  processing  day  and  a  normal  eight-hour  shift,  the \nclaimant would only be performing those left shoulder operations or movements for 37.5% of the \nday.    Even  considering  two  15-minute  breaks  and  a  30-minute  lunchtime  the  claimant  would \nonly  be  performing  those  left  shoulder  operations  or  movements  for  42.8%  of  his  work  day.  \nWhile the claimant’s work was  certainly  rapid and intensive,  I do not believe it to be  repetitive \nunder the Arkansas Workers’ Compensation Act.   \n\nHolmes – H203628 \n \n \n-16- \n I  am  not  certain  what  the  claimant  did  for  the  remainder  of  his  work  day  for  the \nrespondent  employer,  but  I  do  believe  some  light  can  be  shed  on  it  by  Respondent’s  Exhibit  3.  \nRespondent’s Exhibit 3 is the oral deposition of the claimant taken on August 29, 2022.  In the \nexhibit to that deposition, a document titled “Work Smart Analysis” is found.  This is a five-page \ndocument that describes the claimant’s job duties.  On the first page of that document it describes \n12 essential functions, some of those functions were described by the  claimant but many others \nwere not.  After review of that document it appears that the claimant’s work activities did include \nwhat was described in his testimony, but also several other essential functions. \n The claimant was questioned on cross-examination about that document as follows: \n  Q You were asked questions by my law partner about \n  this paperwork when you were deposed.  Does that sound  \n  correct? \n \n  A That is correct. \n \n  Q And some of this is documentation about your job \n  description at Conagra; is that right? \n \n  A Yes, ma’am. \n \n  Q And all of that was accurate? \n \n  A Yes, ma’am. \n \n Here,  the  claimant  most  certainly  worked  rapidly  at  times,  but  is  unable  to  prove  by  a \npreponderance  of  the  evidence  that  his  work  was  repetitive  which  is  the  threshold  issue  in  a \ndetermination  of  whether  the  injury  was  caused  by  rapid  repetitive  motion.    As  such,  the \nclaimant  is  unable  to  meet  his  burden  and  prove  a  gradual  onset  injury  to  his  left  shoulder  that \nculminated on or about February 11, 2022. \n\nHolmes – H203628 \n \n \n-17- \n The  claimant  also  alternatively  argued  that  his  left  shoulder  difficulties  were  due  to  a \nspecific incident that occurred on February 11, 2022.  The claimant’s medical records submitted \ninto evidence do not support any specific incident.  The claimant’s left shoulder began to become \npainful  well  before  February  11,  2022,  and  the  claimant  does  not,  to  medical  providers  or  in \ntestimony  in  the  Commission,  relate  his  left  shoulder  problems  to  a  specific  event  of  any  kind.  \nIn cross-examination the claimant gave the following testimony: \n  Q You were also asked by my law partner, “Was there \n  any type of anything specific that happened in February?” \n  Your response was, “No, it just started hurting” and you \n  described it as a “throbbing hurting.”  Is that right? \n \n  A Yeah, throbbing. \n \nThe  claimant  is  unable  to  prove  by  a  preponderance  of  the  evidence  that  he  sustained  a \ncompensable specific injury to his left shoulder on February 11, 2022. \n From a review of the record as a whole, to include medical reports, documents, and other \nmatters properly before the Commission, and having had an opportunity to hear the testimony of \nthe  witnesses  and  to  observe  their  demeanor,  the  following  findings  of  fact  and  conclusions  of \nlaw are made in accordance with A.C.A. §11-9-704: \n \n FINDINGS OF FACT & CONCLUSIONS OF LAW \n 1.  The  stipulations  agreed  to  by  the  parties  at  the  pre-hearing  conference  conducted  on \nAugust  30,  2022,  and  contained  in  a  Pre-Hearing  Order  filed  September  13,  2022,  are  hereby \naccepted as fact. \n 2.   The claimant has failed to prove by a preponderance of the evidence that he sustained \na  compensable  gradual  onset  injury  to  his  left  shoulder  culminating  on  or  about  February  11, \n\nHolmes – H203628 \n \n \n-18- \n2022.    The  claimant  has  also  failed  to  prove  by  a  preponderance  of  the  evidence  that  he \nalternatively sustained a compensable specific incident injury to his left shoulder on February 11, \n2022. \n 3.   The claimant has failed to prove his entitlement to medical treatment. \n 4.   The claimant has failed to prove his entitlement to temporary total disability benefits \nfrom February 12, 2022 to August 3, 2022. \n 5.   The claimant has failed to prove that his attorney is entitled to an attorney’s fee in this \nmatter. \n 6.      The  respondents’  issue  of  lack  of  notice  as  a  defense  to  this  claim  is  moot  as  the \nclaimant  was  unable  to  prove  that  he  sustained  a  compensable  gradual  onset  or  compensable \nspecific injury on or about February 11, 2022. \n \n ORDER \n Pursuant  to  the  above  findings  and  conclusions,  I  have  no  alternative  but  to  deny  this \nclaim in its entirety.     \n IT IS SO ORDERED. \n \n \n \n                                ____________________________                                              \n       HONORABLE ERIC PAUL WELLS \n       ADMINISTRATIVE LAW JUDGE","preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H203628 WILLIAM W. HOLMES, Employee CLAIMANT CONAGRA FOODS, INC., Employer RESPONDENT ACE AMERICAN INSURANCE CO./BROADSPIRE, Carrier/TPA RESPONDENT OPINION FILED JANUARY 31, 2023 Hearing before ADMINISTRATIVE LAW JUDGE ERIC PAUL WELLS in Russellville, Pope Co...","fetched_at":"2026-05-19T23:11:50.509Z","links":{"html":"/opinions/alj-H203628-2023-01-31","pdf":"https://labor.arkansas.gov/wp-content/uploads/HOLMES_WILLIAM_H203628_20230131.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}