{"id":"alj-H204677-2023-08-22","awcc_number":"H204677","decision_date":"2023-08-22","opinion_type":"alj","claimant_name":"Natasha Onick","employer_name":"Jacksonville N. Pulaski Sch. Dist","title":"ONICK VS. JACKSONVILLE N. PULASKI SCH. DIST. AWCC# H204677 AUGUST 22, 2023","outcome":"granted","outcome_keywords":["granted:3"],"injury_keywords":["back","neck","lumbar"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/Onick_Natasha_H204677_20230822.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Onick_Natasha_H204677_20230822.pdf","text_length":33249,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H204677 \n \n \nNaTASHA ONICK, EMPLOYEE CLAIMANT \n \nJACKSONVILLE N. PULASKI SCH. DIST., \n SELF-INSURED EMPLOYER RESPONDENT \n \nARK. SCHOOL BDS. ASSN., \n THIRD-PARTY ADMINISTRATOR RESPONDENT \n \n \nOPINION FILED AUGUST 22, 2023 \n \nHearing  before  Administrative  Law  Judge  O.  Milton  Fine  II  on  May 24,  2023,  in  Little \nRock, Pulaski 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 On May 24, 2023, the above-captioned claim was heard in Little Rock, Arkansas.  \nA prehearing conference took place on March 28, 2023.  The Prehearing Order entered \nthat   same 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.    After \namendments at the hearing, they read as follows: \n1. The  Arkansas  Workers’  Compensation  Commission  has  jurisdiction  over \nthis claim. \n\nONICK – H204677 \n \n2 \n2. The  employee/self-insured  employer/third-party  administrator  relationship \nexisted  on  or  about  September  24,  2021,  when  Claimant  sustained  a \ncompensable injury to her lower back. \n3. Respondents accepted Claimant’s lower back injury as compensable and \npaid for her treatment at Concentra Health Centers. \n4. Claimant’s average weekly wage of $279.71 entitles her to compensation \nrates of $187.00/$154.00. \nIssues \n At  the  hearing,  the parties  discussed the  issues  set forth  in  Commission  Exhibit \n1.   After  the  withdrawal  of  the  compensability  issue  in  light  of  Stipulation  No.  2, supra, \nthe following were litigated: \n1. Whether  Claimant  is  entitled  to  additional  treatment  of  her  stipulated \ncompensable lower back injury. \n2. Whether Claimant is entitled to temporary total disability benefits. \n3. Whether Claimant is entitled to a controverted attorney’s fee. \n All other issues have been reserved. \nContentions \n The respective contentions of the parties, following  amendments at the hearing, \nare as follows: \n Claimant: \n1. Claimant  contends  that  she  sustained  admitted,  compensable  injuries  to \nher back on September 24, 2021. \n\nONICK – H204677 \n \n3 \n2. She  further  contends  that  she  is  entitled  to  payment  of  temporary total \ndisability benefits for the periods of September 25, 2021, to November 30, \n2021;  and  from  April  2,  2022,  through  a  date  yet  to  be  determined,  less \nand except a two-week period therein that she worked for Shutter Health. \n3. Claimant’s attorney respectfully requests that any attorney’s fees owed by \nClaimant  on  controverted  indemnity  benefits  paid  by  award  or  otherwise \nbe  deducted  from  her  benefits  and  paid  directly  to  counsel  by  separate \ncheck;  and  that  any  Commission  order  direct  Respondents  to  make \npayment of attorney’s fees in this manner. \nRespondents: \n1. Respondents  contend  that  any  reasonable,  necessary,  and  authorized \nmedical  treatment  has  been  paid  associated  with  this  claim.    Indemnity \nbenefits  were  paid  while  Claimant  was  in  an  off-work  status.    They \nrespectfully request a credit for any such benefits already paid. \n2. It  is  Respondents’  position  that  the  authorized  medical  care  does  not \nindicate entitlement to additional indemnity benefits.  Claimant has sought \nunauthorized medical care for which Respondents are not liable. \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 \n\nONICK – H204677 \n \n4 \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  her entitlement \nto additional treatment of her stipulated compensable lower back injury  in \nthe form of her visit to MedExpress Clinic on September 24, 2021. \n4. Claimant   has   not   proven  by   a  preponderance   of   the   evidence   her \nentitlement  to  any  other  treatment  of  her  stipulated  compensable  lower \nback  injury  other  than  that  set  out  in  Stipulation  No.  3  and  Finding of \nFact/Conclusion of Law No. 3, supra. \n5. Claimant   has   not   proven  by   a  preponderance   of   the   evidence   her \nentitlement to temporary total disability benefits for any period. \n6. Claimant  has not  proven  by  a  preponderance  of  the  evidence  that  her \nattorney is entitled to a controverted fee under Ark. Code Ann. § 11-9-715 \n(Repl. 2012) because no indemnity benefits have been awarded herein. \nCASE IN CHIEF \nSummary of Evidence \n The witnesses were Claimant and Erica Logan. \n Along  with  the  Prehearing  Order  discussed  above,  the  exhibits  admitted  into \nevidence  in  this  case  were  Claimant’s  Exhibit  1,  a  compilation  of  her  medical  records, \n\nONICK – H204677 \n \n5 \nconsisting of one index page and 65 numbered pages thereafter; Respondents’ Exhibit \n1, another compilation of Claimant’s medical records, consisting of two index pages and \n86  numbered  pages  thereafter;  and  Respondents’  Exhibit  2,  non-medical  records, \nconsisting of one index page and 15 numbered pages thereafter. \nAdjudication \nA. Additional Treatment \n As the parties stipulated supra, the only treatment that Claimant has undergone \non   her   lower   back—which,   again,   the   parties   have   agreed   she sustained   a \ncompensable  injury  thereto—was  her  visit  to  Concentra  Health  Centers.    The  medical \nrecords in evidence, however, show that since she suffered this injury on September 24, \n2021,   she   has   undergone   extensive   additional   treatment.      Respondents   deny \nresponsibility  for  all  of  this.    They  have  argued  not  only  that  this  treatment  was  not \nreasonable and necessary, but that it was unauthorized as well. \n Arkansas  Code  Annotated  Section 11-9-508(a)  (Repl.  2012)  states  that  an \nemployer  shall  provide  for  an  injured  employee  such medical  treatment  as  may  be \nnecessary  in  connection  with  the  injury  received  by  the  employee.   Wal-Mart  Stores, \nInc. v. Brown, 82 Ark. App. 600, 120 S.W.3d 153 (2003).  But employers are liable only \nfor  such  treatment  and  services  as  are  deemed  necessary  for  the  treatment  of  the \nclaimant’s injuries.  DeBoard v. Colson Co., 20 Ark. App. 166, 725 S.W.2d 857 (1987).  \nThe claimant must prove by a preponderance of the evidence that medical treatment is \nreasonable  and  necessary  for  the  treatment  of  a  compensable injury.   Brown, supra; \nGeo  Specialty  Chem.  v.  Clingan,  69  Ark.  App.  369,  13  S.W.3d  218  (2000).    The \n\nONICK – H204677 \n \n6 \nstandard “preponderance of the evidence” means the evidence having greater weight or \nconvincing force.  Barre v. Hoffman, 2009 Ark. 373, 326 S.W.3d 415; Smith v. Magnet \nCove   Barium   Corp.,   212   Ark.   491,   206   S.W.2d   442   (1947).    What   constitutes \nreasonable and necessary medical treatment is a question of fact for the  Commission.  \nWhite  Consolidated  Indus.  v.  Galloway,  74  Ark.  App.  13,  45  S.W.3d  396  (2001); \nWackenhut Corp. v. Jones, 73 Ark. App. 158, 40 S.W.3d 333 (2001).  In order to prove \nhis entitlement to the requested  treatment, Claimant must also prove that it is causally \nrelated to her compensable injury of September 24, 2021.  See Pulaski Cty. Spec. Sch. \nDist. v. Tenner, 2013 Ark. App. 569, 2013 Ark. App. LEXIS 601. \n As  the  Arkansas  Court  of  Appeals  has  held,  a  claimant  may  be  entitled to \nadditional  treatment,  even  after  the  healing  period  has  ended,  if  said  treatment  is \ngeared toward management of the injury.  See Patchell v. Wal-Mart Stores, Inc., 86 Ark. \nApp.  230,  184  S.W.3d  31 (2004); Artex  Hydrophonics,  Inc.  v.  Pippin,  8  Ark.  App. 200, \n649 S.W.2d 845 (1983).  Such services can include those for the purpose of diagnosing \nthe  nature  and  extent  of  the  compensable  injury;  reducing  or  alleviating  symptoms \nresulting  from  the  compensable  injury;  maintaining  the  level  of  healing  achieved;  or \npreventing  further  deterioration  of  the  damage  produced  by  the  compensable  injury.  \nJordan v. Tyson Foods, Inc., 51 Ark. App. 100, 911 S.W.2d 593 (1995); Artex, supra.  A \nclaimant is not required to furnish objective medical evidence of her continued need for \nmedical  treatment.   Castleberry  v.  Elite  Lamp  Co.,  69  Ark.  App.  359,  13  S.W.3d  211 \n(2000). \n\nONICK – H204677 \n \n7 \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 Claimant is a high school graduate.  During the time period relevant to this cause \nof action, she was employed by Respondent Jacksonville North Pulaski School District.  \nShe described her position there as follows:  “It was just considered a bus aide, where I \njust supervised special-needs kids on the bus, just keeping them in their seats and quiet \nso  the  bus  driver  could  do  her  job,  drive.”  It  was  her  opinion  that  that  the  job  had \nphysical requirements because it entailed the aide intervening if a fight broke out on the \nbus  or  if  a  student  there  otherwise  became  disruptive.  In  addition,  she  assisted  a \nwheelchair-bound individual on and off the bus.  Claimant participated in three morning \nand  three  afternoon  bus  runs—one  each  for  elementary,  middle  school,  and  high \nschool. \n In  relating  how  she  injured  her  lower  back  on  September  24,  2021,  Claimant \ntestified: \nWell,  my  driver,  Ms.  Norman,  it  was  about  6:00,  6:15ish  to  6:30,  roughly \naround that time.  We was on our route.  We left the bus pound, we were \non  our  route,  and  right  before  we  got  to  our  first  stop  to  pick  up  our  first \n\nONICK – H204677 \n \n8 \nstudent  it  was  dark,  and  she  tried  the  curve,  made  a  right-hand  on  the \ncurve and hit the ditch . . . [w]e went in the ditch.  She hit it, I flew from the \nright  side,  because  I always  sit  in  the  back  .  .  .  [a]nd  that,  like  I  say,  the \nnext thing you know, I was—hit my head on the window and got throwed \nall the way over to the right-hand side—well, the left-hand side of the bus. \n \nAfter this  happened,  Claimant  and  the  bus  driver  were  able  to  complete  the route.\n Initially,  Claimant  was  seen  at  MedExpress.  When  asked  why  she  went  there, \nshe stated that the secretary at the school district’s bus barn, Nicole Hyman, instructed \nher to do so.  Hyman worked under Coach Barry Hickingbotham, who at that time was \nover the barn and bus operations for the  school district.  Claimant testified that Hyman \ngave her a form that had MedExpress on it, and that was why she went there.  The form \nis not in evidence, however. \n Thereafter, she went to Concentra.  This, too, was at the behest of Respondents.  \nClaimant explained that while she was off work after the MedExpress visit, she was not \nbeing paid temporary total disability benefits.  She first contacted Tammy Knowlton, who \nwas  the  human  resources  person  for  the  district  then;  and  from  there,  she  consulted \nwith Melody Tipton, the adjustor on the claim. \n Asked  how  she  was  feeling  during  the  period  after  the  October  4,  2021, \nConcentra appointment, Claimant replied:  “Oh, oh, I was, I was bad.  I couldn’t move.  I \nwas still, I had numbness, yes . . . [d]own my right side . . . [into] my legs, because due \nto the pain I had in the back.” \n Later,  Claimant  went  to  her  primary  care  physician,  Dr.  Vivian  Suarez,  at  the \nUniversity of Arkansas for Medical  Sciences.  She  admitted that she  also  sees Suarez \n\nONICK – H204677 \n \n9 \nfor  pre-existing  issues  that  include  diabetes  and  hypertension.    Claimant  testified  that \nshe went to her doctor “just trying to see what was going on” with her back. \n Claimant   has   also   been   undergoing   pain   management  at   Pain   Treatment \nCenters  of  America.  She  acknowledged  that,  as  reflected  in  the  records  in  evidence, \nshe had treated there for approximately one year prior to September 24, 2021.  But she \nexplained  that  those  visits  were  primarily  for  her  neck,  and  that  her  back  was  not a \nmajor  issue  until  the  bus  accident.    This  is,  however,  at  odds  with  her  deposition \ntestimony that she had no back treatment before the work-related incident in question. \n It   was   her   testimony   on   direct   examination   that   her   prescriptions   for \nHydrocodone,  Meloxicam,  Tizanidine,  and  Gabapentin  are  related  to  her  stipulated \nlower  back  injury.    But  this  conflicts  somewhat  with  her  deposition  testimony  that  she \nwas taking Hydrocodone and Gabapentin for her neck problem before the bus accident.  \nClaimant has also undergone injections for her back, along with an MRI. \n The following exchange occurred: \nQ. Did  you  talk  with  Ms.  Tipton  or  anyone  else  associated  with  the \nschool district about what you were supposed to do with respect to \nseeing  a  doctor?    And  I  know  that  you  told  us  about  beforehand, \nbut I’m talking about after you had gone to Concentra, did you talk \nwith  someone  about  what  you  were  supposed  to  do  in  the  way  of \ngetting medical treatment? \n \nA. Well, I reached out to [Knowlton] . . . [w]ell, reached out to her, but I \ngot  no  response,  no,  no—they  wasn’t—she  wasn’t  answering  the \nphone call.  I left messages, got emails, tried to get hold [sic] to her, \nand  in  the  process,  like  I  said  .  .  .  Ms.  Melody,  pretty  much  after  I \nhad  got  released  from  Concentra,  I  didn’t  hear  back  from  her.    I \ndidn’t  hear,  you  know,  she  didn’t  return  phone  calls  or  nothing  to \nthat nature. \n \n\nONICK – H204677 \n \n10 \nQ. Did you want to talk with her about what you were supposed to do \nin the way of getting medical treatment? \n \nA. Correct. \n \nQ. Okay. \n \nA. I  mean,  because  like  I  said,  once  she  sent  me  to  Concentra,  they \nhad—I  went  there  twice  whatever,  and then they  released me,  but \nyeah,  I  didn’t  see—I  didn’t  hear  anything  back  from  anybody  .  .  . \n[f]rom Jacksonville, nor Pulaski. \n \nQ. But were you trying to communicate? \n \nA. I was trying to communicate with them to see what I needed to do, \nand so in the process of that, that’s why I just continued to go to my \nPC[P] and Pain Centers. \n \nClaimant acknowledged that the emails she purportedly sent  that are referenced in the \nabove passage were not offered into evidence. \n Respondents  have  argued  that  any  treatment  Claimant  has  undergone  with \nregard  to  her  back  after  the  Concentra appointment  was unauthorized.    In Tempworks \nMgmt.  Servs.  v.  Jaynes,  2023  Ark.  App.  147,  662  S.W.3d  280,  the  Arkansas  Court  of \nAppeals wrote: \nBriefly,   Ark.   Code   Ann.   § 11-9-514(c)(1)   requires   an   employer   or \ninsurance   carrier   to   deliver   a   Commission-approved   notice   to   the \nemployee “which   explains   the   employee’s   rights   and   responsibilities \nconcerning   change   of   physician.”  Unauthorized   medical   expenses \nincurred after the employee has received the notice are not the employer’s \nresponsibility.  Id. §   11-9-514(c)(3).  But if the employee is not furnished a \ncopy of the notice, the change-of-physician rules don’t apply. \n \nThe  change-of-physician  rules  do  not  apply  absent  proof  that  the  claimant  received  a \ncopy  of  the  rules  from  the  respondent  either  in  person  or  by  certified  registered mail.  \n\nONICK – H204677 \n \n11 \nArk. Code Ann. § 11-9-514(c)(1)-(2) (Repl. 2012).  See also Jaynes, supra; Stephenson \nv. Tyson Foods, Inc., 70 Ark. App. 265, 19 S.W.3d 36 (2000). \n A  preponderance  of  the  evidence  establishes  that  Claimant  received  a  copy  of \nthese rules.  She admitted at the hearing that she was given the two-sided Form AR-N, \na copy of which is in evidence.  The following exchange on cross-examination confirms \nthis: \nQ. Ms.   Onick,   I’m   going   to   show   you   what’s   been   marked   as \nRespondents’ Exhibit 2. \n \nA. Okay. \n \nQ. And we’re going to look at page 4. \n \nA. Uh-huh. \n \nQ. Is  that  the  document  that  you  filled  out  when  you  got  back  to  the \nbus pound? \n \nA. Yes.  Yeah, it looks like it.  Yes, uh-huh. \n \nQ. Okay.  So this is all your writing on the form? \n \nA. That’s mine, except this right here (indicating on form). \n \nQ. Okay.  Someone else wrote the supervisor’s name? \n \nA. In Jacksonville, and this.  That was Ms. Nicole. \n \nQ. So that would be the cursive writing? \n \nA. Yes, ma’am, uh-huh, that would be Ms. Nicole. \n \nQ. All right.  But in the middle section here it says, “What part of your \nbody  was  injured?”  It  says, “Lower  back,  neck,  and  left  side,”  is \nthat correct? \n \nA. Correct, uh-huh. \n\nONICK – H204677 \n \n12 \n \nQ. And it also shows that you got a copy of the front and the back side \nof that form, is that correct? \n \nA. Yes. \n \nQ. This is your signature and phone number? \n \nA. Yeah, that’s me, uh-huh, yes. \n \nQ. And you did, in fact, receive a copy, correct? \n \nA. I’m not sure. \n \nQ. Did you? \n \nA. I’m not sure.  I don’t remember receiving it.  If I did, I— \n \nQ. You testified in your deposition that they did give you a copy? \n \nA. She gave me a copy, okay? \n \n While Logan testified that school district employees with minor injuries are sent to \nJacksonville  Medical  Care,  and  major  injuries  are  referred  either  to  either  an  Urgent \nCare or an emergency room, I note that her tenure as the human resources director for \nthe  district  began  after  the  events  in  question,  when  Knowlton  retired.    However,  her \ntestimony establishes that  beginning in September 2021, she became familiar with the \npolicy  of  the  school  district  regarding  this  when  Knowlton  trained  her  in, inter  alia, \nworkers’ compensation so that she could function in this area when Knowlton was out  .  \nAs  confirmed  by  the excerpt  of  the  new  employee  orientation  manual  that  was  in \nevidence,  Claimant  was  to  be  seen  at  Jacksonville  Medical  Clinic  in  the  event  she \nneeded non-emergency treatment, or at the Baptist Medical Center emergency room at \n\nONICK – H204677 \n \n13 \nSpringhill  if  emergency  treatment  was  required.    MedExpress  was  not  on  the  list  of \napproved treatment destinations, per Logan. \n The record of Claimant’s September 24, 2021, visit to MedExpress contains the \nfollowing notation: \nARKANSAS SCHOOL BOARD ASSOCIATION \nP.O. BOX 165460 \nLITTLE ROCK, AR  72216-5460 \nPolicy Holder:  OC-JACKSONVILLE NORTH P \n \nThis, coupled with Claimant’s credible testimony on this point, leads me to find that the \npreponderance  of  the  evidence  establishes  that  Hyman—the  school  district  employee \nwho  furnished  her  the  workers’  compensation  paperwork  in  the  aftermath  of  the  bus \naccident, also gave her paperwork that at least tacitly instructed Claimant to go there to \nbe  seen  in  connection  with  her  stipulated  compensable  back  injury.    Regardless  of \nwhether  MedExpress was  on  the  list  given  in  orientation,  or  whether  Hyman  consulted \nwith Knowlton or others before giving Claimant this instruction, Claimant was entitled to \nrely  on  it.   See  Foote’s  Dixie  Dandy,  Inc.,  v.  McHenry,  270  Ark.  816,  607  S.W.2d  323 \n(1980).  Thus, Claimant has proven that this treatment was authorized. \n The  treatment  that  Claimant  underwent  after  the  October  4,  2021,  visit  to \nConcentra, however, is a different matter.  The evidence shows that no one purporting \nto  be  acting  on  behalf  of  Respondents  authorized  Claimant  to  treat  with  Dr.  Suarez  or \nPain Treatment Centers of America.  Claimant has sought to justify this by saying that \nshe  first  attempted  to  seek  approval  from  Knowlton  and  Tipton  before  going  to  these \nplaces, but could not get a response from either.  Nothing before me corroborates this.  \n\nONICK – H204677 \n \n14 \nMoreover,  Claimant’s  medical  records  show  that in  her  first  three  visits  to  Pain \nTreatment  Centers  of America  after  the  bus accident—on November  8,  2021,  January \n13,  2022,  and  February  17,  2022—she  did  not  even  mention  the  accident.    For \ninstance,  she  presented  on  November  8,  2021,  with “neck  and  low  back  pain”  (which \nwas  cited  in  pre-accident  treatment  records  there)  that “has  not  changed  significantly \nsince [the] last visit . . . .”  This is repeated in the January 13, 2022, report.  It stands to \nreason  that  if  Claimant  were  seeking  authorization  from  Respondents  to  go  to  Pain \nTreatment  Centers  of  America  for  her  back  injury,  the  subject  of  the  accident  would \nhave  appeared  in  those  records  prior  to  when  it  actually  does—on March  28,  2022, \nwhich  is  approximately  six  months  after  the  bus  went  into  the  ditch.  In  that  instance, \nshe reported that she “had [a] lumbar injury prior to [the] last  visit,” which would date it \nbefore the February 17, 2022, appointment. \n A similar situation exists with regard to Dr. Suarez.  Claimant did not see her until \nMay 9, 2022, per the records in evidence.  Even then, that particular record is silent to \nan event at work. \n If  a  preponderance  of  the  evidence  establishes  that  Claimant’s  authorized \ntreating  physicians  refuse  to  see her again, and  Respondents  refuse  to  provide a  new \nphysician, then the change-of-physician rules do not apply after the claimant has been \ndenied  additional  authorized  medical  treatment.   See  Sanyo  Mfg.  Corp.  v.  Farrell,  16 \nArk. App. 59, 696 S.W.2d 779 (1985).  The October 7, 2021, treatment record by Clint \nBearden,  P.A.,  of  Concentra,  states  that  Claimant  could  come  back “as  needed.”  \nRegardless,  the  evidence  before  me  simply  does  not  preponderate  that  Respondents \n\nONICK – H204677 \n \n15 \nrefused  to  provide  Claimant  a  new  physician  after  her  discharge  from  Concentra on \nOctober 7, 2021.  Therefore, she has not proven her entitlement to the treatment by Dr. \nSuarez and Pain Treatment Centers of America. \nB. Temporary Total Disability \n In  this  proceeding,  Claimant  has  also  claimed  entitlement  to  temporary  total \ndisability benefits for the following dates:  September 25, 2021, to November 30, 2021; \nand from  April  2,  2022,  through  a  date  yet  to  be  determined,  less  and except  a  two-\nweek  period  therein  that  she  worked  for  Shutter  Health.    Respondents  at  the hearing \nacknowledged  that  they  did  pay  some  benefits  of  this  type  under  the  claim—but were \nnot prepared to offer a stipulation to specify the exact\n1\n period.  But they maintained that \nshe was not entitled to any additional temporary total disability benefits. \n Claimant’s stipulated  compensable  lower  back  injury  is  unscheduled.   See Ark. \nCode  Ann.  §  11-9-521  (Repl. 2012).    An  employee  who  suffers  a  compensable \nunscheduled  injury  is  entitled  to  temporary  total  disability  compensation  for  that  period \nwithin  the  healing  period  in  which  she  has  suffered  a  total  incapacity  to  earn  wages.  \nArk.  State  Hwy.  &  Transp.  Dept.  v.  Breshears,  272  Ark.  244,  613  S.W.2d  392  (1981).  \nThe  healing  period  ends  when  the  underlying  condition  causing  the  disability  has \nbecome  stable  and  nothing  further  in  the  way  of  treatment  will  improve  that condition.  \nMad Butcher, Inc. v. Parker, 4 Ark. App. 124, 628 S.W.2d 582 (1982).  Also, a claimant \nmust demonstrate that the disability lasted more than seven days.  Id. § 11-9-501(a)(1).  \n \n \n1\nBecause  nothing  before  me  reflects  what  period,  if  any,  Claimant  was  paid \ntemporary total disability benefits, I am left with no choice but to address the issue as if \nnone had been paid. \n\nONICK – H204677 \n \n16 \nClaimant   must   prove   her   entitlement   to   temporary   total   disability   benefits   by   a \npreponderance of the evidence.  Ark. Code Ann. § 11-9-705(a)(3) (Repl. 2012). \n Claimant’s medical history includes two strokes—with the second one ending her \nemployment as a school bus driver.  The following exchange took place: \nQ. And  according  to  your  deposition  testimony,  the  stroke  affected \nyour  right  side  causing  some  weakness,  and  you  have  problems \nsitting and standing too long because of that stroke, is that right? \n \nA. Well,  but  I  don’t—I  can’t  stand  and  sit  long,  yeah.    That[‘s]  just \n[be]cause of my back, my back, from back pain. \n \nQ. You didn’t testify that you have weakness because of the stroke? \n \nA. Yeah, I did, yes. \n \n According  to  Claimant,  she  began  having  difficulty  performing  her  job  after \nsustaining the back injury.  Her testimony was that she was no longer able to handle the \nstudents  on  the  bus:   “I’d  bring  a  pillow  just  to  try  to  get  on  with  it.”  Although  she \nattempted  to  come  back  to  work,  this  effort  was  not  successful:  “It  didn’t  do  good.   I \nthink at that point I just felt like, like I said I couldn’t perform the job, best of my ability, \nyou know, due to the accident.” \n Claimant quit her bus aide position on October 15, 2021, per the resignation form \nthat  is  in  evidence.    The  form  reflects  that  the  effective  date  of  the  resignation  was \nOctober 10, 2021, and that the last day she worked was October 7, 2021.  On the form, \nClaimant merely wrote “personal reasons” as the basis for her resignation.  In an email \nto her supervisor, Coach Hickingbotham, on October 7, 2021, she shed no further light \non this.  Instead, the email from her simply reads: \n\nONICK – H204677 \n \n17 \nHello coach sadly [sic] to inform you that I will not be continuing work with \nyou  guy’s  [sic]  Thank  you  and  Ms.  Nicole  for  all  you  did  for  me.    Sorry  it \ndidn’t work out [sic] Oct 10, 2021 \n \nWhile  Claimant  testified  that  she  informed  Hickingbotham  in  the  email  that  the  back \ninjury was the reason for her quitting, the text quoted above does not bear this out. \n The following exchange took place on direct examination: \nQ. What were the personal reasons? \n \nA. Just me not being able to perform that job anymore. \n \nQ. Why did you think you were not able to perform the job? \n \nA. Just  trying,  just  let  alone  trying  to  get  at up and—up and  down  on \nthe bus, trying  to sit there, and you  know, you hitting potholes and \nthings like that. \n \n Eventually after leaving the school district, on December 1, 2021, Claimant went \nback  to  work  for  another  employer.    At  Home  Again,  she  worked  as  a  personal  care \nassistant,  looking  after  elderly  clients in  their  homes.    She  stayed  there  until  April  1, \n2022,  doing,  among  other  things,  cooking  and  providing  companionship.    Asked  why \nshe left that position, Claimant responded: \nWell,  I  had  to  stop  that  because  they  had  gave  me  a  client  that  I wasn’t \nable  to  take  care  of  because  she  was  strictly  bedridden  and  you  had  to \nuse a lift to lift her up and just, you know, clean her, wipe or whatever, so \nmy body and my back would not let me do that. \n \n Even  though  Claimant  told  Dr.  Suarez  on  May  4,  2022,  that  she  could not  find \nanother  job  because  of  her  Hydrocodone  use,  this  proved  not  to  be  the  case.    From \nAugust 22,  2022,  through  September 12,  2022,  Claimant  worked for  a  business  called \nShutter Health.  This entailed working from her home, answering calls from patients and \n\nONICK – H204677 \n \n18 \nscheduling  their  appointments.   Asked  why  she  quit,  Claimant  stated:   “I  couldn’t  sit \nthere for  eight hours, sit  in  a  seat,  so  I had to  let  it  go.”  She  has not applied  for  work \nanywhere since then. \n This and the personal care aide jobs have been the only two she has held since \nresigning  from  the  school  district.  Describing  how  she  is  doing  at  present,  Claimant \nstated: \nGood  day,  I  make  it  to  get  up,  actually  get  up  and  probably  walk,  you \nknow, to the restroom, and that’s pretty much it.  But my day, the majority \nof my days just consist of I be [sic] in the bed.  I’ll take my medication and \nI just—because, like I say, I’ve got either having back problems, you know, \nto where I can’t move.  Everything is hurting on me. \n \n The evidence shows that when Claimant was seen at MedExpress on September \n24, 2021, she was not given any restrictions.   When Bearden saw her at Concentra on \nOctober  4,  2021.    He  did  not  assign  her  any  restrictions,  but  wrote:   “PT  [physical \ntherapy]  is  medically  necessary  to  address  objective  impairment/functional  loss  and  to \nexpediate  return  to  full  activity.”    Bearden  recommended  six  therapy  sessions  spread \nover two weeks.  Just three days later, however, he examined her again and wrote: \nMusculoskeletal:    Normal  gait.    No  tenderness  or  swelling  of  extremities.  \nRange of motion is within normal limits.  Normal muscle strength and tone.  \nOverall  subjective  pain  complaints  exceed  objective  findings  from  Ms. \nOnick[‘s] exam.  Es[s]entially normal. \n \nHe  added  that  she  was “at  functional  goal,  not  at  end  of  healing,”  but  could “return  to \nwork  with  no  restrictions”  as  of  October  7,  2021.  Claimant  confirmed  in her  testimony \nthat  she  is  unaware  of  being  taken  off  work  by  any  medical  provider  since  then.  She \nhas previously applied for Social Security disability benefits—both times unsuccessfully. \n\nONICK – H204677 \n \n19 \n Based  on  the  above  evidence,  I  cannot  find  that  Claimant  has  proven  by a \npreponderance  of  the  evidence  that  she  suffered  a  total  incapacity  to  earn  wages  for \nany period in connection with her stipulated compensable lower back injury.  In addition, \nwith respect to her entitlement to temporary total disability benefits after her resignation, \nthe  effective  date  of  which  was  October  10,  2021,  the  Arkansas  Court  of  Appeals  in \nLybyer  v.  Springdale  Sch.  Dist.,  2019  Ark.  App.  77,  568  S.W.3d  805,  held  that “a \nvoluntary resignation is a refusal to return to work [per Ark. Code Ann. § 11-9-526 (Repl. \n2012)]\n2\n,  which does  not  entitle  [a  claimant]  to  TTD  benefits  under  the  Act.”  In  sum, \nClaimant has not proven her entitlement to temporary total disability benefits. \nC. Attorney’s Fee \n Claimant has asserted that she is entitled to a controverted attorney’s fee in this \nmatter.  However, because she has not shown  her entitlement to indemnity benefits in \nany amount in connection with this claim, a controverted fee cannot be awarded under \nArk. Code Ann. § 11-9-715 (Repl. 2012). \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 \n \n \n2\nThis provision reads: \n \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 \n\nONICK – H204677 \n \n20 \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 IT IS SO ORDERED. \n \n       ________________________________ \n       Hon. O. Milton Fine II \n       Chief Administrative Law Judge","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H204677 NaTASHA ONICK, EMPLOYEE CLAIMANT JACKSONVILLE N. PULASKI SCH. DIST., SELF-INSURED EMPLOYER RESPONDENT ARK. SCHOOL BDS. ASSN., THIRD-PARTY ADMINISTRATOR RESPONDENT OPINION FILED AUGUST 22, 2023 Hearing before Administrative Law Judge O. Milton Fine II ...","fetched_at":"2026-05-19T23:04:11.739Z","links":{"html":"/opinions/alj-H204677-2023-08-22","pdf":"https://labor.arkansas.gov/wp-content/uploads/Onick_Natasha_H204677_20230822.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}