{"id":"alj-H204537-2023-12-06","awcc_number":"H204537","decision_date":"2023-12-06","opinion_type":"alj","claimant_name":"James Booth","employer_name":"Weyerhaeuser Nr Co., Inc","title":"BOOTH VS. WEYERHAEUSER NR CO., INC. AWCC# H204537 DECEMBER 6, 2023","outcome":"granted","outcome_keywords":["affirmed:1","modified:1","granted:4"],"injury_keywords":["ankle","sprain","back"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/BOOTH_JAMES_H204537_20231206.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"BOOTH_JAMES_H204537_20231206.pdf","text_length":19776,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H204537 \n \nJAMES E. BOOTH,   \nEMPLOYEE                                                  CLAIMANT \n \nWEYERHAEUSER NR CO., INC.,   \nEMPLOYER                                                    RESPONDENT \n \nWEYERHAEUSER NR CO., INC./SEDGWICK CLAIMS                           \nMG’T.Cindy SERVICES, INC.,     \nINSURANCE CARRIER/TPA                                  RESPONDENT \n                              \n                                    \nOPINION FILED DECEMBER 6, 2023  \n \nHearing   conducted   on   September   7,   2023,   before the  Arkansas  Workers’  Compensation \nCommission  (the  Commission),  Administrative  Law  Judge  (ALJ)  Mike  Pickens,  in  Texarkana, \nMiller 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 Guy Alton Wade, Friday, Eldredge & Clark, \nLittle Rock, Pulaski County, Arkansas. \n \nINTRODUCTION \n       In the prehearing order filed May 16, 2023, the parties agreed to the following \nstipulations, which they modified and affirmed on the record at the hearing: \n1. The Arkansas Workers’ Compensation Commission (the Commission) has \njurisdiction over this claim. \n2. The  employer/employee/carrier-TPA  relationship  existed  at  all  relevant  times \nincluding June 13, 2022, when the claimant alleges he sustained a “compensable \ninjury” to his left ankle.   \n \n3.    The claimant’s average weekly wage (AWW) was $1,196.14, which is sufficient to \n    entitle him to weekly compensation rates of $790.00 for temporary total disability \n    (TTD), and $593.00 for permanent partial disability (PPD) benefits. \n \n4.    The claimant applied for and received short-term disability (STD) benefits from \n     June 14\nth\n, 2022, through October 28\nth\n, 2022, at the rate of $226 for 26 weeks. \n     Therefore, pursuant to Ark. Code Ann. Section 11-9-411 (2023 Lexis \n\nJames E. Booth, AWCC No. 204537 \n \n \n \n2 \n    Replacement) the respondents are entitled to a dollar-for-dollar off-set against any \n    TTD benefits that awarded to the claimant, if any.   \n \n5. The respondents have controverted this claim in its entirety. \n  \n6.    The parties specifically reserve any and all other issues for future litigation and/or \n    determination. \n \n(Commission Exhibit 1 at 1-2; Hearing Transcript at 3-5; 59-60). Pursuant to the parties’ mutual \nagreement the issues litigated at the hearing were: \n \n1. Whether  the  claimant  sustained  a “compensable  injury”  within  the  meaning  of  the \nArkansas Workers’ Compensation Act (the Act) to his left ankle on June 13, 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. 3-5; 60). \nThe claimant contends he sustained a compensable injury to his left ankle on June 13, 2022. \nHe  contends  he  is  entitled  to  TTD  benefits  from  June  14,  2022,  through  November  17,  2022, \nconsistent  with  Stipulation  No.  3, supra.  The  claimant  contends  the  medical  treatment  he  has \nreceived to date for his left ankle has been related to and reasonably necessary for treatment of his \ncompensable injury; therefore, he contends the Commission should order the respondents to pay \nfor this treatment, including but not limited to reimbursement for his out-of-pocket expense(s) and \nmileage  totaling  $991.98,  to  date.  In  addition,  the  claimant  contends  he  is  entitled  to  additional \n\nJames E. Booth, AWCC No. 204537 \n \n \n \n3 \nmedical treatment for his left ankle injury. Specifically, if the Commission deems the claimant’s \nleft ankle injury to be compensable, he intends to request his one (1)-time-only change of physician \n(COP)  for  the  primary  purpose  of  determining  his  permanent  anatomical  impairment,  if  any, \namong other purposes as the COP may deem related to and reasonably necessary in light of his \ninjury.  Finally,  the  claimant  contends  the  Commission  should  order  the  respondents  to  pay a \ncontroverted attorney's fee as provided by law. (Comms’n Ex. 1 at 2-3; T. 55-56). \nThe respondents contend the claimant cannot meet his burden of proof in demonstrating he \nsustained a “compensable injury” within the Act’s meaning. Specifically, the respondents contend \nthe  claimant  did  not  sustain an “accidental injury”,  was  not  within  the  course  and  scope  of  his \nemployment, and/or was not performing employment services at the time of his alleged left ankle \ninjury, which the respondent contend was idiopathic in nature. Therefore, the respondents contend \nthe claimant is not entitled to any medical or indemnity benefits. (Comms’n Ex. 1 at 3; T. 54-55). \n \nSTATEMENT OF THE CASE \n       The claimant, Mr. James Edward Booth (the claimant) is 47 years old. In 2016 he injured \nhis left foot and ankle while working for Tyson when he caught the foot in a drain. He missed no \nwork as a result of this injury, and an MRI of his left ankle performed on March 24, 2016, revealed \nsome mild tendinosis. (Claimant’s Exhibit 1 at 2; 2-3). He was diagnosed with a sprain of his left \nankle and was able to return to full duty work thereafter with no restrictions. The claimant also \nhad a history of lower back problems for which he drew long-term disability (LTD) at one time. \n(T. 16; 8-35; 36-39).   \n\nJames E. Booth, AWCC No. 204537 \n \n \n \n4 \n       The relevant  facts  of  this  claim  concerning  how  the  claimant’s  alleged  left  ankle  injury \noccurred  are  undisputed.  The  claimant  began  his  employment  with  Weyerhaeuser  on  April  26, \n2022. The claimant admitted he had injured his left ankle in 1996 while working for Tysons, but \nsaid he missed no work as a result of this injury, and that he had no more problems with the left \nankle  thereafter.  He  testified  that  before  he  went  to  work  for  Weyerhaeuser  he  was  required  to \nundergo a company physical examination, which he passed. (T. 9-11). \n     Concerning  the  alleged  left  ankle  injury  at  issue  in  this  case,  the  claimant  testified  that  on \nJune 13, 2022, he was walking on the employer’s premises from one building to another, from one \nwork area to another, when he stepped from the grass to the concrete and that his left “ankle rolled” \nresulting in immediate and significant pain he felt radiate up into the area of his groin. (T. 15-19). \nHe reported this injury almost immediately, and on the Form AR-N under the heading “Place of \nAccident” is written, “Slick Deck/Bark Hog Area.” (Claimant’s Exhibit 2 at 1; CX2 at 13-14; T. \n15-19; 39-44).   \n     The  claimant  initially  was  treated  conservatively,  but  his  treating  orthopedic  surgeon,  Dr. \nDwayne  Daniels,  eventually  ordered  an  MRI  which  was  conducted  on  August  8,  2022,  which \nrevealed a, “full thickness tear of the longus tendon” in his left ankle. (CX2 at 30A). Some of Dr. \nDaniels’s clinic notes refer to the tear as having been, “spontaneous.” (e.g., see Dr. Daniels’s clinic \nnote of September 1, 2022). Dr. performed surgery to correct this condition on August 24, 2022, \nand in a report dated November 21, 2022, Dr. Daniels stated the claimant had sustained no – zero \npercent (0%) – permanent anatomical impairment as a result of this left ankle injury. (CX2 at 43). \n    \n\nJames E. Booth, AWCC No. 204537 \n \n \n \n5 \nDISCUSSION \nThe Burden of Proof \n     When deciding any issue, the ALJ and the Commission shall determine, on the basis of the \nrecord  as  a  whole,  whether  the  party  having  the  burden  of  proof  has  established  it  by  a \npreponderance of the evidence. Ark. Code Ann. § 11-9-704(c)(2) (2023 Lexis Replacement). The \nclaimant has the burden of proving by a preponderance of the evidence he is entitled to benefits. \nStone v. Patel, 26 Ark. App. 54, 759 S.W.2d 579 (Ark. App. 1998). Ark. Code Ann. Section 11-\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); Deana Constr. Co. v. Herndon, 264 Ark. 791, \n595 S.W.2d 155 (1979). It is the Commission’s exclusive responsibility to determine the credibility \nof the witnesses and the weight to give their testimony. Whaley v. Hardees, 51 Ark. App. 116, 912 \nS.W.2d 14 (Ark. App. 1995). The Commission is not required to believe either a claimant’s or any \n\nJames E. Booth, AWCC No. 204537 \n \n \n \n6 \nother witness’s testimony, but may accept and translate into findings of fact those portions of the \ntestimony it deems believable. McClain v. Texaco, Inc., 29 Ark. App. 218, 780 S.W.2d 34 (Ark. \nApp. 1989); Farmers Coop. v. Biles, supra.   \n     The  Commission  has  the  duty  to  weigh  the  medical  evidence  just  as  it  does  any  other \nevidence,  and  its  resolution  of  the  medical  evidence  has  the  force  and  effect  of  a  jury  verdict. \nWilliams v. Pro Staff Temps., 336 Ark. 510, 988 S.W.2d 1 (1999). It is within the Commission’s \nprovince  to  weigh  the  totality  of  the  medical  evidence  and  to  determine  what  evidence  is  most \ncredible  given  the  totality  of  the  credible  evidence  of  record. Minnesota  Mining  &  Mfg’ing  v. \nBaker, 337 Ark. 94, 989 S.W.2d 151 (1999). \n       It  is  a  black  letter  principle  of  workers’  compensation  law  that  an  employer  takes  the \nemployee  as  he  finds  him;  and  an  employment-related  incident  that  aggravates  a  preexisting \ncondition(s)  is  (are)  compensable. Heritage  Baptist  Temple  v.  Robison,  82  Ark.  App.  460,  120 \nS.W.3d  150  (Ark.  App.  2003).  Stated  another  way,  a  preexisting  disease  or  infirmity  does  not \ndisqualify  a  claim  if  the  work-related  incident  aggravated,  accelerated,  or  combined  with  the \ndisease  or  infirmity  to  produce  the  disability  for  which  the  claimant  seeks  benefits. Jim  Walter \nHomes  v.  Beard,  82  Ark.  App.  607,  120  S.W.3d  160  (Ark.  App.  2003).  The  aggravation  of  a \npreexisting, otherwise non-compensable condition by a compensable injury is itself compensable. \nOliver v. Guardsmark, 68 Ark. App. 24, 3 S.W.3d 336 (Ark. App. 1999). An aggravation is a new \ninjury  resulting  from  an  independent  incident. Crudup  v.  Regal  Ware,  Inc.,  341  Ark.  804,  20 \nS.W.3d 900 (Ark. App. 2000) (Emphasis added). Of course, since it is a new injury resulting from \nan  independent  cause,  any  alleged  aggravation  of  a  preexisting  condition  must  meet  the  Act’s \n\nJames E. Booth, AWCC No. 204537 \n \n \n \n7 \ndefinition of a “compensable injury” in order for the claimant to prove compensability. Farmland \nIns. Co. v. Dubois, 54 Ark. App. 141, 923 S.W.2d 883 (Ark. App. 1996). \n      Concerning the proof required to demonstrate the aggravation of a preexisting condition, our \nappellate courts have consistently held that since an aggravation is a new injury, a claimant must \nprove it by new objective evidence of a new injury different than the preexisting condition. Vaughn \nv. Midland School Dist., 2012 Ark. App. 344 (Ark. App. 2012) (citing Barber v. Pork Grp., Inc., \n2012 Ark. App. 138 (Ark. App. 2012); Grothaus v. Vista Health, LLC, 2011 Ark. App. 130, 382 \nS.W.3d 1 (Ark. App. 2011); Mooney v. AT & T, 2010 Ark. App. 600, 378 S.W.3d 162 (Ark. App. \n2010). Where the only objective findings present are consistent with prior objective findings or \nconsistent with a long-term degenerative condition rather than an acute injury, this does not satisfy \nthe  objective  findings  requirement  for  the  compensable  aggravation  of  a  preexisting  condition \ninjury. Vaughn, 2012 Ark. App. 344, at 6 (holding that Arkansas courts have interpreted the Act \nto  require  “new  objective  medical  findings  to  establish  a new  injury  when  the  claimant  seeks \nbenefits  for  the  aggravation  of  a  preexisting  condition”); Barber,   supra   (affirming   the \nCommission’s denial of an aggravation of a preexisting condition claim where the MRI findings \nrevealed a degenerative condition, with no evidence of, and which could not be explained by, an \nacute injury). (Emphasis added). Based on the aforementioned law as applied to the facts of this \ncase,  I am  compelled to  find the  claimant has met his burden of proof in  demonstrating his left \nankle injury of June 13, 2022, constitutes a “compensable injury” within the Act’s definition. \n    The case at bar is both factually and legally similar to White County Medical Center, LLC v. \nJohnson, 2022 Ark. App. 262, 646 S.W.3d 245 (Ark. App. 2022). In White County Med. Ctr., the \n\nJames E. Booth, AWCC No. 204537 \n \n \n \n8 \nclaimant, who was a mental health technician whose job was providing care and support to patients \nundergoing  mental  health  and  substance  abuse  treatment,  was  simply  walking  around  the  unit \nchecking on her patients when she turned a corner to go into a patient’s room, felt a “pop” in her \nright ankle, reported the  incident to her immediate supervisor, then to a co-worker whose job it \nwas to handle workers’ compensation claims. Although she was in pain, the claimant continued to \nwork,  and  about  a  week  later  she felt a second “pop” in  her right  ankle simply  while walking. \nWhite Cty. Med. Ctr., 646 S.W.3d 248. \n     The claimant’s treating physician initially diagnosed her with a sprained ankle, but referred \nthe claimant to an orthopedic surgeon, Dr. Michael Weber, who suspected a ligament tear in the \nclaimant’s  right  ankle.  An  MRI  confirmed  Dr.  Weber’s  suspicion,  so  the  claimant  underwent \nsurgery to repair the torn tendon. White Cty. Med. Ctr., 646 S.W.3d 249.   \n     The  ALJ  issued  an  opinion  finding  the  claimant  had  failed  to  prove  a  compensable  ankle \ninjury, apparently holding the ankle injury was idiopathic in nature. The Full Commission reversed \nthe ALJ, finding that the claimant had in in fact met her burden of proof in demonstrating the right \nankle injury was compensable in that it was “unexplained”, and not “idiopathic”.  \n     On appeal to the court of appeals the court affirmed the Full Commission’s opinion, finding \nthe claimant’s right ankle injury was “accidental” in nature, and “unexplained,” not “idiopathic.” \nThe court goes on to explain their reasoning in some detail , and to distinguish cases the appellant \nrespondents cited in support of their position the claimant’s right ankle injury was not “accidental”, \nnor  was  it  “unexplained”,  but  was  idiopathic  and,  therefore,  not  compensable  within  the  Act’s \nmeaning. White Cty. Med. Ctr., 646 S.W.3d at 250-251. The facts of the White Cty. Med. Ctr. case \n\nJames E. Booth, AWCC No. 204537 \n \n \n \n9 \nare remarkably similar to the case at bar. Therefore, for the same reasons our court of appeals set \nforth  in White  Cty.  Med.  Ctr.,  supra,  I  am  bound  by  this  precedent  and  compelled  to  find  the \nclaimant  herein  has  met  his  burden  of  proof  in  demonstrating  his  right  ankle  injury  was \nunexplained, not idiopathic and, therefore, compensable within the Act’s meaning.   \n    The Act defines “temporary total disability” as the period of time within the healing period \nwhen  the  claimant  is  totally  incapacitated  from  earning  wages. Ark.  Code  Ann. Section  11-9-\n501(b) (2023 Lexis Repl.); Ark. State Highway Dep’t v. Breshears, 272 Ark. 244, 613 S.W.2d 392 \n(1981). The Act defines the “healing period” as, “that period for healing of an injury resulting from \nan accident.” Ark. Code Ann. Section 11-9-102(2) (2023 Lexis Repl.). Whether the healing period \nhas ended is a question of fact for the Commission to determine based on the evidence of record \nin each particular case. Ketcher Roofing Co. v. Johnson, 50 Ark. App. 63, 901 S.W.2d 25 (Ark. \nApp. 1995). An employee who has sustained a compensable injury is not required to offer objective \nmedical evidence in order to prove entitlement to TTD benefits. Ark. Health Ctr. V. Burnett, 2018 \nArk. App. 427, 558 S.W.3d 408 (Ark. App. 2018). Here the claimant has met his burden of proof \nin demonstrating he is entitled to TTD benefits from June 14, 2022 – the day after his compensable \nleft ankle injury – through November 17, 2022, the date his healing period ended and he was able \nto return to work.   \n   Therefore, for the aforementioned reasons, I hereby make the following: \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n1. The Commission has jurisdiction of this claim.   \n \n\nJames E. Booth, AWCC No. 204537 \n \n \n \n10 \n2. The stipulations contained in the prehearing order filed May 16, 2023, which the \nparties modified and affirmed on the record at the hearing, hereby are accepted \nas facts.   \n \n \n3. The claimant has met his burden of proof pursuant to the Act in demonstrating \nhe sustained a compensable injury to his left ankle on June 13, 2022. Therefore, \npursuant   to Ark.   Code   Ann.   Section   11-9-508   (2023   Lexis   Repl.),   the \nrespondents  are  responsible  for  payment  of  any  and  all  of  the  claimant’s \nreasonably  necessary  medical  treatment  including  but  not  limited  to  his  out-of \npocket expenses, related to his June 13, 2022, left ankle injury. \n \n4. The claimant has met his burden of proof in demonstrating he is entitled to \nTTD benefits from June 14, 2022, through the end of his healing period, \nNovember 17, 2022. \n \n5. The claimant’s attorney is entitled to a full statutory attorney’s fee based on the \ntotal amount of the controverted TTD benefits.   \n \n6. Pursuant to Ark. Code Ann. Section 11-9-411 (2023 Lexis Repl.), the \nrespondents are entitled to take a dollar-for-dollar credit/off-set based on any \nand all such benefits paid to or on the claimant’s behalf by any third-party \npayor(s).   \n \nAWARD \n \n      The respondents are hereby directed to pay benefits in accordance with the “Findings of Fact \nand Conclusions of Law” set forth above. All accrued sums shall be paid in lump sum without \ndiscount, and this award shall earn interest at the legal rate until paid pursuant to Ark. Code Ann. \nSection 11-9-809, and Couch v. First State Bank of Newport, 49 Ark. App. 102, 898 S.W.2d 57 \n(Ark. App. 1995); Burlington Indus., et al v. Pickett, 64 Ark. App. 67, 983 S.W.2d 126 (Ark. App. \n1998); and Hartford Fire Ins. Co. v. Sauer, 358 Ark. 89, 186 S.W.3d 229 (2004), subject only to \nthe parties’ statutory appeal rights. \n\nJames E. Booth, AWCC No. 204537 \n \n \n \n11 \n          IT IS SO ORDERED. \n                                              \n \nMike Pickens \nAdministrative Law Judge \n \n \n \n \n \n \n \n \n \n \n \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. H204537 JAMES E. BOOTH, EMPLOYEE CLAIMANT WEYERHAEUSER NR CO., INC., EMPLOYER RESPONDENT WEYERHAEUSER NR CO., INC./SEDGWICK CLAIMS MG’T.Cindy SERVICES, INC., INSURANCE CARRIER/TPA RESPONDENT OPINION FILED DECEMBER 6, 2023 Hearing conducted on September 7, 2...","fetched_at":"2026-05-19T22:59:07.423Z","links":{"html":"/opinions/alj-H204537-2023-12-06","pdf":"https://labor.arkansas.gov/wp-content/uploads/BOOTH_JAMES_H204537_20231206.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}