{"id":"alj-H203952-2023-03-29","awcc_number":"H203952","decision_date":"2023-03-29","opinion_type":"alj","claimant_name":"Sharon Simpson","employer_name":"St. Vincent Infirmary Med. Ctr","title":"SIMPSON VS. ST. VINCENT INFIRMARY MED. CTR. AWCC# H203952 MARCH 29, 2023","outcome":"denied","outcome_keywords":["dismissed:1","denied:2"],"injury_keywords":["ankle","knee","back"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/Simpson_Sharon_H203952_20230329.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Simpson_Sharon_H203952_20230329.pdf","text_length":20282,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H203952 \n \n \nSHARON SIMPSON, EMPLOYEE CLAIMANT \n \nST. VINCENT INFIRMARY MED. CTR., \n EMPLOYER RESPONDENT \n \nINDEMNITY INS. CO. OF NO. AMER., \n CARRIER RESPONDENT \n \n \nOPINION FILED MARCH 29, 2023 \n \nHearing  before  Administrative  Law  Judge  O.  Milton  Fine  II  on  February  14,  2023,  in \nLittle Rock, Pulaski County, Arkansas. \n \nClaimant pro se. \n \nRespondents  represented  by  Mr.  Michael  E.  Ryburn,  Attorney  at  Law,  Little  Rock, \nArkansas. \n \n \nSTATEMENT OF THE CASE \n \n On  February  14,  2023,  the  above-captioned  claim  was  heard  in  Little  Rock, \nArkansas.  A prehearing conference took place on December 12, 2022.  The Prehearing \nOrder  entered  that  day  pursuant  to  the  conference  was  admitted  without  objection  as \nCommission  Exhibit  1.    At  the  hearing,  the  parties  confirmed  that  the  stipulations, \nissues, and respective contentions, as amended, were properly set forth in the order. \nStipulations \n The parties discussed the stipulations set forth in Commission Exhibit 1.  With an \namendment of the fourth at the hearing, they now read: \n\nSIMPSON – H203952 \n \n2 \n1. The  Arkansas  Workers’ Compensation  Commission  has  jurisdiction  over \nthis claim. \n2. The employee/employer/carrier relationship existed on May 18, 2022, and \nat all other relevant times. \n3. Respondents have controverted this claim in its entirety. \n4. Claimant’s  average  weekly  wage entitles  her  to  compensation  rates  of \n$774.00/$580.00. \nIssues \n At  the  hearing,  the parties  discussed the  issues  set forth  in  Commission  Exhibit \n1.  The following were litigated: \n1. Whether  Claimant  sustained  compensable  injuries  to  her  left  ankle  and \nright knee by specific incident. \n2. Whether   Claimant   is   entitled   to   reasonable   and   necessary   medical \ntreatment. \n3. Whether Claimant is entitled to temporary total disability benefits. \n All other issues have been reserved. \nContentions \n The respective contentions of the parties are: \n Claimant: \n 1. Claimant  contends  that  she  sustained  compensable  injuries  to  her  left \nankle and right knee when she fell twice on May 18, 2022, and that she is \nentitled to benefits pursuant thereto. \n\nSIMPSON – H203952 \n \n3 \n Respondents: \n1. Claimant  was  not  performing  employment  services  at  the  time  of  the \naccident.    She  fell  in  the  parking  lot  before  reporting  to  her  workstation.  \nClaimant has no objective medical evidence to support her claim.  She did \nnot miss enough time from work to be eligible for temporary total disability \nbenefits. \n2. This  matter  has  been  dismissed  by  order  of  an  administrative  law  judge \ndated  September  29,  2022.    There  was  no  appeal  from  that  order  within \n30 days.  Claim No. H203952 has been dismissed.\n1\n \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n After reviewing the evidentiary record, and having had an opportunity to hear the \ntestimony  of  the  claimant  and  to  observe  her  demeanor,  I  hereby  make  the  following \nfindings  of  fact  and  conclusions  of  law  in  accordance  with  Ark.  Code  Ann.  §  11-9-704 \n(Repl. 2012): \n1. The  Arkansas  Workers’  Compensation  Commission  has  jurisdiction  over \nthis claim. \n \n \n1\nRespondents have not raised this as an issue.  I cannot address such an issue \nsua  sponte.   See Carthan  v.  School  Apparel,  Inc.,  2006  AR  Wrk.  Comp.  LEXIS  451, \nClaim  No.  F410921  (Full  Commission  Opinion  filed  November  28,  2006)(improper  for \nadministrative law judge to address issues sua sponte); Singleton v. City of Pine Bluff, \n2006  AR  Wrk.  Comp.  LEXIS  79,  Claim  No.  F302526  (Full  Commission  Opinion  filed \nFebruary   23,   2006), rev’d   on   other   grounds,   No.   CA06-398   (Dec.   6,   2006) \n(unpublished)(same).  Regardless,   I   note   that   Claimant   filed   a   Form   AR-C on \nSeptember 29, 2022, after Administrative  Law Judge Terry Don Lucy entered an order \nof dismissal.  See Sinclair v. Magnolia Hospital, 1998 AR Wrk. Comp. LEXIS 786, Claim \n\nSIMPSON – H203952 \n \n4 \n2. The stipulations set forth above are reasonable and are hereby accepted. \n3. Respondents’ objection to the admission of Claimant’s Proffered Exhibit 3 \nis sustained; it will not be admitted into evidence. \n4. Claimant  has  not  proven  by  a  preponderance  of  the  evidence  that  she \nsustained a compensable injury either to her left ankle or to her right knee. \n5. Because   of   Finding/Conclusion   No.   4 supra,   the   remaining   issues–\nwhether   Claimant   is   entitled   to   reasonable   and   necessary   medical \ntreatment and temporary total disability benefits–are moot and will not be \naddressed. \nPRELIMINARY RULING \nAdmission of Claimant’s Proffered Exhibit 3 \n At the hearing, Claimant moved for the admission of this proffered exhibit, which \ncontains her medical records.  Respondents’ counsel objected to its admission, stating \nthat  he  was  not  furnished  with  a  copy  thereof  at  least  seven  days  before  the  hearing.  \nThe Prehearing Order reads in pertinent part: \nExhibits  and  the  identity  of  witnesses  must  be  exchanged  at  least  seven \n(7)  days  prior  to  the  hearing.    All  depositions  must  be  completed  prior  to \nthe hearing.  Medical reports must be exchanged at least seven (7) days \nprior to the hearing pursuant to Ark. Code Ann. § 11-9-705(c)(2)(A) (Repl. \n2012).  Evidence not disclosed in compliance with this Order shall not be \nconsidered  as  evidence  unless  prior  permission  of  the  Commission  is \nobtained and for good cause shown. \n \n \nNo.  E703502 (Full Commission Opinion filed December 22, 1998)(a claim is “typically” \nfiled via a Form AR-C). \n\nSIMPSON – H203952 \n \n5 \n After  Claimant  offered  the  proffered  exhibit  into  evidence,  the following  lengthy \ncolloquy took place: \nJUDGE  FINE:    Mr.  Ryburn,  do  you  need  a  second  to  examine  anything \nshe is wanting to offer or do you have a response to this? \n \nMR.  RYBURN:    Miss  Simpson  did  call  me  late  last  week  and  says, “I’m \ngonna  fax  you  something.”  She  did  fax  me  some  medical  records.    She \ndid  say, “I  know  it’s  late.    I  know  they’re  not  within  the  seven-day  rule.”  \nAnd  I  said, “I’ll  have  to  look  at  them  and  either  make  an  objection  or  not \nmake  an  objection,  but  I  don’t  know  what  I’m  talking  about  yet  until  I  get \nthem.”  And sent two different packages; one came I think Friday and one \ncame Monday. \n \nJUDGE FINE:  All right. \n \nMS. SIMPSON:  I hope they both came the same day.  I’m sorry. \n \nJUDGE  FINE:   All  right.   Let  me  ask  you:   is  Mr.  Ryburn  correct  on  what \nhe just stated to me? \n \nMS. SIMPSON:  He is correct. \n \nJUDGE FINE:  All right.  Now today is Tuesday, February 14\nth\n. \n \nMS. SIMPSON:  Correct. \n \nJUDGE FINE:  Now you testified that you read my Prehearing Order.  Do \nyou recall that? \n \nMS. SIMPSON:  Yes. \n \nJUDGE FINE:  And do you recall me talking to you during the prehearing \ntelephone  conference  saying  that  you  have  to  get  any  medical  records \nthat  you  want  admitted  into  evidence  to  Mr.  Ryburn  at  least  seven  days \nbefore the hearing?  Do you remember me explaining that to you? \n \nMS. SIMPSON:  Yes, I have your notes.  I made notes.  Yes. \n \nJUDGE FINE:   All right.  Did you get a copy of your medical records, the \nones that you want into evidence; did you get those to Mr. Ryburn at least \nseven days before the hearing? \n\nSIMPSON – H203952 \n \n6 \n \nMS. SIMPSON:  I didn’t, Your Honor, and I’m gonna tell you why I didn’t. \n \nJUDGE FINE:  All right. \n \nMS. SIMPSON:   I had my original medical records when I was under the \ncare  of  Dr. Vargas.    I had my original medical  records  when  I  was  under \nthe  care  of  Dr.  Kirk  Reynolds.    I  needed  the  final  medical  records  that  I \ncould get from Dr. Gordon.  I had called his office, and they told me, when \nwe had this little ice storm here last week, that he had transcribed it, then \nhe  called  back  and  said, “Well,  we  don’t see  where  he’s  transcribed  it.”  \nThen   I   finally   got   a   notification—an   email   stating “Dr.   Gordon   has \nfinished—completed  the  medical  records.    We  will  send  them  over.”      I \nlooked back at my notes and that’s when I saw seven days.  I said, “Okay.  \nWait  a  minute.   I – I’ve  missed  my  timeline  here.   Let  me  notify—let  me \nsee  if  I  can  call  Mr.  Ryburn  and  see  if  I  can  fax ‘em  over  or  either  can  I \nhand–deliver  those  to  him.”    And  I  did.    I  faxed ‘em  to  him.    But  again—\nand  I  know  this  is  just—I  guess  maybe  that’s  why  I  need  an  attorney.   I \nwas thinking on the evidence of burden is what I was really trying to argue. \n \nJUDGE FINE:   Well, let me stop and go through a couple [of] things with \nyou  based  on  what  you  just  said.    With  regard  to  an  attorney, you’re \nsaying  that  you  need  an  attorney.    Do  you  recall  me,  at  the  beginning  of \nyour  prehearing  conference,  telling  you  that you  had  the  right  to  have  an \nattorney? \n \nMS. SIMPSON:  Right. \n \nJUDGE FINE:  And do you recall telling me that you  wanted to go ahead \nand proceed without a lawyer? \n \nMS.  SIMPSON:    Right.  And  I  asked  the  attorney  that  I  have,  that’s \nrepresenting me for the hospital, if he could help me with this, and he told \nme— \n \nJUDGE  FINE:    Well,  respectfully,  I  don’t  want  to  get  into  any  attorney-\nclient  privileged  communication  you  have  had  with  a  lawyer  in  a  matter.  \nBut what I did want to confirm is that you were told that you could have a \nlawyer,  and  that,  in  fact,  you  could  even  postpone  that  prehearing \nconference and try to get a lawyer.  Do you remember that? \n \nMS. SIMPSON:  Yes, I remember it. \n \n\nSIMPSON – H203952 \n \n7 \nJUDGE  FINE:    But  you  elected  to  go  ahead  and  say  you  wanted  to \nrepresent yourself.  Do you recall that? \n \nMS. SIMPSON:  I do recall it. \n \nJUDGE  FINE:    All  right.    And  with  regard  to—and  basically  what  I \nunderstand  your  testimony  is  on  your  records  and  what  I’m  hearing  from \nyou  is  that  you had  your  medical  records  except  for  the  records  from  Dr. \nGordon’s office. \n \nMS. SIMPSON:  Correct.  Yes, sir. \n \nJUDGE  FINE:    But  you  delayed  on  getting  them  to  Mr.  Ryburn  because \nyou didn’t have Dr. Gordon’s records. \n \nMS. SIMPSON:  Right. \n \nJUDGE  FINE:    Why  didn’t  you  go  ahead  and  give  Mr.  Ryburn,  at  least \nseven days before the hearing, the records you did have? \n \nMS. SIMPSON:   Because I wanted to have everything.  And  at that point \nwhen I—his office kept delayin’ and sayin’ that he hadn’t transcribed. \n \nJUDGE FINE:  “His office” being Dr. Gordon? \n \nMS.  SIMPSON:   Yes, Dr.  Gordon.   Then his—the  nurse  was  saying,  you \nknow, he hadn’t—I kept tryin’ to get those records. \n \n[T. 72-77] \n The determination of a witness’ credibility and how much weight to accord to that \nperson’s testimony are solely up to the Commission.  White v. Gregg Agricultural Ent., \n72 Ark. App. 309, 37 S.W.3d 649 (2001).  The Commission must sort through conflicting \nevidence and determine the true facts.  Id.  In so doing, the Commission is not required \nto  believe  the  testimony  of  the  claimant  or  any  other  witness,  but  may  accept  and \ntranslate into findings of fact only those portions of the testimony that it deems worthy of \nbelief.  Id. \n\nSIMPSON – H203952 \n \n8 \n I  credit  Claimant’s  testimony  as  outlined  above.   The  evidence  shows  that  even \nthough she was to “exchange” medical records–i.e., provide a copy to the other side—\nwithin  the  seven-day  period  prescribed  by  § 11-9-705(c)(2)(A)  and  the  Prehearing \nOr   der, she did not do so.  Instead, as Respondents’ Exhibit 1 shows, Claimant faxed the \nproffered  exhibit  to  Respondents’  counsel  on  February  10,  2023.    This  was  just  four \ndays before the hearing. \n Respondents  have  not  consented  to  a  waiver  of  the  violation  per  §  11-9-\n705(c)(4).  Nonetheless, pursuant to § 11-9-705(c)(3), I have the discretion to admit or \nexclude the evidence.  See Coleman v. Pro Transportation, Inc., 97 Ark. App. 338, 249 \nS.W.3d  149  (2007).    But  under  the  circumstances  presented  here,  I  cannot  properly \nadmit  the  evidence.    Claimant  acknowledged  being  aware  of  the  deadline.    Her \nexplanation for failing to meet it was her inability to obtain her medical records from one \nof  her  providers.    But  this  does  not  explain  why  she  did  not  mitigate  the  situation  by \ntendering  the  records  that  she  did  have  to  Respondents  by  February  7,  2023.    The \nunavailability of Gordon’s records did not justify her wholesale failure to meet the seven-\nday  deadline  with  regard  to  her  medical  records  exhibit.    Consequently,  Claimant’s \nProffered Exhibit 3 will not be admitted into evidence, and will not be considered.  See \nJobe  v.  St.  Vincent  North/Sherwood,  2005  AR  Wrk.  Comp.  LEXIS  206,  Claim  No. \nF105594  (Full  Commission  Opinion  filed  May  27,  2005), aff’d  sub  nom. St.  Vincent \nHealth Systems v. Jobe, No. CA 05-823 (Ark. Ct. App. Feb. 8, 2006)(unpublished). \n\nSIMPSON – H203952 \n \n9 \nCASE IN CHIEF \nSummary of Evidence \n Claimant was the sole witness at the hearing. \n Along  with  the  Prehearing  Order  discussed  above,  the  exhibits  admitted  into \nevidence  in  this  case  were  Claimant’s  Exhibit  1,  a  job  description  for  the  position  of \nTelecommunications Manager, consisting of five numbered pages; Claimant’s Exhibit 2, \na typewritten statement signed and dated May 17, 2022, by Donovan Kindle, consisting \nof  one  page;  and Respondents’  Exhibit  1, a  facsimile  cover  sheet  addressed  to \nRespondents’  counsel  from  Claimant  and  dated  February  10,  2023,  consisting  of  one \npage. \nAdjudication \n Claimant,  who  is  a  high  school  graduate  and  who  completed  three  years  of \ncollege,  testified  that  on  May  18, 2022,  she was  employed  by  Respondent St.  Vincent \nInfirmary  Medical  Center  (“St.  Vincent”)  as  the  Telecommunications Manager.    Her \naccount was that she fell twice at approximately 6:50 a.m.  that day after she parked in \nthe  St.  Vincent  employee  parking  lot  and  was  en  route  to  the  building  where  she \nworked: \nI  had  arrived.    That  morning  I  didn’t  stop  to  get  coffee  because  I  was \ngonna get coffee inside.  I wasn’t running late.  My bags, I always set them \nin  the  back  seat  because  it’s  kinda  like  an  incline  and  I  just  don’t  want \nthem  to fall  forward and then  stuff  is everywhere.    I  had  locked my  car—\nwell,  I  grabbed  my  bags  and  I  locked  my  car.    I  had  my  badge  where  I \ncould get it.  I was proceeding to walk, and when I got ready to walk out of \nthat  parking  lot  to  go  forward  into  the other parking  lot—when  I  walked,  I \nmade  a  step,  and  I  was  down  .  .  .  [r]ight  at  the  physician’s  gate  .  .  .  I \n\nSIMPSON – H203952 \n \n10 \ntripped in a hole . . . [w]ell, when I came—when I realized I was—I looked \nup and I fell, and I looked down and I was in the hole. \n \n[T. 24-25]  However, per Claimant, that was not her only fall of the morning: \nThat  was  the  first  time  I  fell.    I  kinda  set  [sic]  there  and  looked  around, \n‘cause I was embarrassed, and I proceeded to get up.  I had my purse—it \nwas  on  the  ground  and  I  remember  pushing  up  off  my  purse.    When  I \npushed  up  off  my  purse,  I  kinda  pulled  myself  together  I  proceeded  to \nwalk.  When I proceeded to walk, the—when I proceeded to walk—when I \nmade another four or  five, six, seven steps, that’s when I went down in a \nmajor  pothole.    My  leg  went  under  me.    My  purse—everything  went \neverywhere  and  I  was  down  .  .  .  [w]hen  I  fell  the  second  time,  I  couldn’t \nmove.  I—I tried to get up as I did the first time when I fell.  I remember I \nwas  in  pain  and  every  time  I  tried  to  get  up,  this  leg  [indicating]  just \nwouldn’t  allow  me.    The  right  ankle,  I  twisted  it  the  first  fall,  so  I’m  just \nthere. \n \n[T. 25-26, 29] \n A nursing supervisor came out on the grounds of the hospital to assess Claimant.  \nAfter  treating  personnel  were  able  to  get  her  up  and  into  a  wheelchair,  Claimant  was \ntaken to the emergency room there.  She was examined, and x-rays were taken.  Since \nthen,  she  has  seen four  different  physicians:    her  primary  care  physician,  Dr.  Eric \nJoseph, at CHI St. Vincent South Clinic; and Drs. Victor Vargas, Kirk Reynolds, and Eric \nGordon at OrthoArkansas.  These individuals treated both Claimant’s left ankle and right \nknee.    Vargas  had  her  undergo  MRIs  on  those  joints.    Reynolds,  in  turn,  evaluated \nthose MRIs and scheduled surgery on her knee.  After the surgery was delayed, Gordon \ntook over her case  and rescheduled  the  procedure for March 30, 2023—after the date \nof the hearing. \n\nSIMPSON – H203952 \n \n11 \nA. Whether Claimant sustained a compensable injury. \n Claimant has asserted that as a result of two falls in the parking lot of her place \nof employment on the morning of May 18, 2022, she sustained compensable injuries to \nher  left  ankle  and  right  knee.    Respondents  have  countered  that  she did  not  suffer a \nwork-related  injury,  alleging,  inter  alia,  that  (1)  any  injury  was  not  sustained  while \nClaimant was performing employment services; and (2) there were no objective findings \nof an injury. \n In  Ark.  Code  Ann.  §  11-9-102(4)(A)(i)  (Repl.  2012),  “compensable  injury”  is \ndefined as follows: \n(i)  An  accidental  injury  causing  internal  or  external  physical  harm  to  the \nbody  .  .  .  arising  out  of  and  in  the  course  of  employment  and  which \nrequires  medical  services  or  results  in  disability  or  death.    An  injury  is \n“accidental” only if it is caused by a specific incident and is identifiable by \ntime and place of occurrence[.] \n \nA compensable injury must be established by medical evidence supported by objective \nfindings.  Id. § 11-9-102(4)(D).  “Objective findings” are those findings that cannot come \nunder the voluntary control of the patient.  Id. § 11-9-102(16)(A)(i).  The element “arising \nout  of  .  .  .  [the]  employment”  relates  to  the  causal  connection  between  the  claimant’s \ninjury  and  his  or  her  employment.   City  of  El  Dorado  v.  Sartor,  21  Ark.  App.  143,  729 \nS.W.2d  430  (1987).    An  injury  arises  out  of  a  claimant’s  employment  “when  a  causal \nconnection between work conditions and the injury is apparent to the rational mind.”  Id.  \nIf  the  claimant  fails  to  establish  by  a  preponderance  of  the  evidence  any  of  the \nrequirements  for  establishing  compensability,  compensation  must  be  denied.  Mikel  v. \nEngineered Specialty Plastics, 56 Ark. App. 126, 938 S.W.2d 876 (1997).  See § 11-9-\n\nSIMPSON – H203952 \n \n12 \n102(4)(E)(i).    This  standard  means  the  evidence  having  greater  weight  or  convincing \nforce.  Barre v. Hoffman, 2009 Ark. 373, 326 S.W.3d 415; Smith v. Magnet Cove Barium \nCorp., 212 Ark. 491, 206 S.W.2d 442 (1947). \n At the outset, I must point out that the evidentiary record before me is devoid of \nany medical evidence, supported by objective findings, that Claimant sustained an injury \nof any sort.  Thus, she has not proven that she suffered a compensable injury. \nB. Remaining issues. \n Claimant  has  also  argued  that  she  is  entitled  to  reasonable  and  necessary \nmedical  treatment  and  to  temporary  total  disability  benefits.    But,  since  she  has  not \nestablished that she sustained a compensable injury, these issues are moot and will not \nbe addressed. \nCONCLUSION \n In  accordance  with  the  findings  of  fact  and  conclusions  of  law  set  forth  above, \nthis claim for initial benefits is hereby denied and dismissed. \n IT IS SO ORDERED. \n       ________________________________ \n       Hon. O. Milton Fine II \n       Chief Administrative Law Judge","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H203952 SHARON SIMPSON, EMPLOYEE CLAIMANT ST. VINCENT INFIRMARY MED. CTR., EMPLOYER RESPONDENT INDEMNITY INS. CO. OF NO. AMER., CARRIER RESPONDENT OPINION FILED MARCH 29, 2023 Hearing before Administrative Law Judge O. Milton Fine II on February 14, 2023, in ...","fetched_at":"2026-05-19T23:09:57.325Z","links":{"html":"/opinions/alj-H203952-2023-03-29","pdf":"https://labor.arkansas.gov/wp-content/uploads/Simpson_Sharon_H203952_20230329.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}