{"id":"alj-H204763-2024-02-13","awcc_number":"H204763","decision_date":"2024-02-13","opinion_type":"alj","claimant_name":"Kirklin Thompson","employer_name":"Den-Tex Central, Inc. D/b/a Denny’s Corporation","title":"THOMPSON VS. DEN-TEX CENTRAL, INC. d/b/a DENNY’S CORPORATION AWCC# H204763 FEBRUARY 13, 2024","outcome":"granted","outcome_keywords":["granted:3"],"injury_keywords":["thoracic","neck","back","cervical","lumbar","shoulder","wrist"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/THOMPSON_KIRKLIN_H204763_20240213.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"THOMPSON_KIRKLIN_H204763_20240213.pdf","text_length":40213,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nCLAIM NO. H204763 \n \nKIRKLIN V. THOMPSON, EMPLOYEE         CLAIMANT \n \nVS. \n \nDEN-TEX CENTRAL, INC. \nd/b/a DENNY’S CORPORATION, EMPLOYER          RESPONDENT  \n \n \nWESCO INSURANCE COMPANY, CARRIER / \nAMTRUST NORTH AMERICA, TPA            RESPONDENT \n       \nOPINION FILED FEBRUARY 13, 2024 \n \nHearing  before  Administrative  Law  Judge,  James  D.  Kennedy,  on  the  5\nth\n  day  of \nDecember, 2023, in Little Rock, Pulaski County, Arkansas. \n \nClaimant is represented by Beau Duty and Elizabeth Duty, Attorneys-at-Law, Sherwood, \nArkansas. \n \nRespondents are represented by William C. Frye, Attorney-at-Law, Little Rock, Arkansas. \n \nSTATEMENT OF THE CASE \n \n A  hearing  was  conducted  on  the  5\nth\n  day  of  December, 2023,  and  the  parties \nstipulated  that  there  was  an  employee/employer  relationship  that  existed  on  April  30, \n2022, when the claimant sustained a compensable injury to his left middle index finger.  \nAt  the  time  of  the  hearing,  the  respondent  provided  that  the  claimant  had   a  twenty-six \npercent (26%) rating to the finger in question and that a check was being sent.  In addition, \na sum of $4,702.00 had been paid in disability benefits. There was no disagreement as \nto these statements.  After a discussion, the claimant contended at the time of the hearing \nthat  after  the  twelve  (12)  weeks  when  he  received  temporary  total  disability,  he  was \nunable to work a full forty-hour shift and was consequently entitled to temporary partial \ndisability,  which  started  on  or  about  May  1,  2022,  and  ran  up  and  through  the  end  of \n\nTHOMPSON – H204763 \n \n2 \n \nJanuary, and possibly longer, based upon the upcoming testimony of Dr. Williams on the \nday of the hearing.  The parties were unable to agree on the average weekly wage.  The \nclaimant also contended he was still within his healing period, due to the fact his treating \ndoctor  had  refused  to see  him and he was  entitled  to  additional  medical  benefits,  plus \nattorney fees.  A copy of the Prehearing order was marked “Commission Exhibit 1” and \nmade part of the record without objection.  The Order provided that the parties stipulated \nthat the Arkansas Workers’ Compensation Commission had jurisdiction of the within claim \nand  that  an  employer/employee  relationship  existed  on  April  30,  2022,  the  date  of  the \nadmitted compensable injury to the middle finger.       \n The  claimant’s  and  respondents’  responses  were  set  out  in  their  respective \nresponses  to  the  prehearing  questionnaire  and  made  a  part  of  the  record  without \nobjection.  The witnesses consisted of Dr. Victor Williams, Juan Jose Jackson, and Kirklin \nThompson, the claimant.  In addition, the claimant submitted a post-hearing brief and the \nrespondent submitted a response and these are blue-backed and made part of the record.  \nFrom  a  review  of  the  record  as  a  whole,  to  include  medical  reports  and  other  matters \nproperly before the Commission, and having had an opportunity to observe the testimony \nand demeanor of the witnesses, the following findings of fact and conclusions of law are \nmade in accordance with Arkansas Code Annotated §11-9-704. \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n \n1. The Arkansas Workers’ Compensation Commission has jurisdiction over this \nclaim. \n \n2.  That an employer/employee relationship existed on April 30, 2022, the date of \nthe admitted, compensable injury to the claimant’s middle index finger on the \nleft hand. \n\nTHOMPSON – H204763 \n \n3 \n \n3.  The claimant’s  average  weekly  wage  is  found  to  be  $688.06,  sufficient  for  a \ntemporary  total  disability/permanent  partial  disability  weekly  rate  of  $445.00 \nand $334.00, respectively. \n   \n4.  The  claimant  reached MMI on January 10, 2023, and  sustained a  twenty-six \npercent (26%) permanent partial disability rating to the middle finger of the left \nhand. \n \n5.  The  claimant  had  received  a  disability  payment  of  $4,702.00  based  upon  a \nlower  average  weekly  wage.    That  based  upon  an  average  weekly  wage  of \n$688.06,  the  claimant  has  satisfied  the  required  burden  of  proof  that  he is \nentitled to temporary total disability benefits of $5,340.00.00, less what he has \nalready  received and  the  applicable  attorney  fees  as  spelled  out  by  the \nArkansas Workers’ Compensation Act. \n \n6.  That  based  upon  an  average  weekly  wage  of  $688.06,  the  claimant  has \nsatisfied  the  required  burden  of  proof  that  he  is  entitled  to  permanent  partial \ndisability payment benefits of $3,213.08, less what he has already received and \nthe   applicable   attorney   fees   as   spelled  out   by   the  Arkansas   Workers’ \nCompensation Act.   \n \n7.  That the claimant has failed to satisfy the required burden of proof that he is \nentitled to additional medical by the respondent. \n \n8.  The claimant is entitled to attorney fees pursuant to Ark. Code Ann. § 11-9-715 \nand the findings of an additional average weekly wage as spelled out above.  \nThis Award shall bear interest at the legal rate pursuant to Ark. Code Ann. § 11-\n9-  809. \n \n9.   If  not  already  paid,  the  respondents  are  ordered  to  pay  for  the  cost  of the     \ntranscript forthwith. \n \nREVIEW OF TESTIMONY AND EVIDENCE \n \n The  Prehearing  Order,  along  with  the  prehearing  questionnaires  of  the parties \nwere admitted into the record without objection.  The claimant submitted two (2) exhibits \nwhich were admitted without objections.  A previous deposition of the claimant was not \nadmitted  since  the  deposition  was  more  involved  with  an  EEOC  claim  filed  by  the \nclaimant, the Commission clearly has no jurisdiction in regard to a EEOC claim, and the \n\nTHOMPSON – H204763 \n \n4 \n \nclaimant  was  available to  testify  in  regard  to  his  workers’  compensation  claim.    The \nrespondents submitted two (2) exhibits that were admitted without objection. \n The initial witness called by the claimant was Dr.  Victor Williams, a general and \nthoracic  surgeon,  licensed  in  the  State  of  Arkansas.    Dr.  Williams  originally  saw  the \nclaimant in December of 2022, after the claimant suffered a fall at Barnhill’s.  In addition \nto treating multiple body parts that were injured related to the fall at Barnhill’s, Dr. Williams \nalso attempted to specifically treat the claimant’s left hand to improve the range of motion.  \nHe opined that he felt the claimant still had some limited range of motion as a result of \nthe injury to his finger that could be improved over time with additional therapy.  He also \nfelt  the  claimant  had  not  reached  maximum  medical  improvement  due  to  a continuing \nlimitation of the range of motion and associated pain,  when he last saw the claimant in \nMarch.  He felt that the claimant needed light-duty due to the type of work he performed \nat the restaurant and his opinion was based upon objective medical evidence.  In regard \nto  the  claimant’s  later  fall that occurred at Barnhill’s, Dr. Williams stated “I thought it \nwas -- more likely than not it was a result of the previous injury that he had to the finger \nand not at – not as of the fall that he had in the restaurant.  I think the fall exacerbated \nthe injury to the finger.” (Tr. 22-26) \n On cross-examination, Dr. Williams admitted that although he had performed some \nsurgeries on fingers, he had not performed the number of surgeries on hands that hand \nsurgeon Dr. Grynwald had performed.  Dr. Williams also admitted that if the claimant had \ncome to him in regard to the deformity he presented with, he would have made a referral \nto  a  hand  surgeon.    He  also  admitted  he  was  aware  that  Dr.  Grynwald  was  a  hand \nsurgeon and had placed the claimant at maximum medical improvement but went on to \n\nTHOMPSON – H204763 \n \n5 \n \nstate the claimant had an issue with finger flexion and extension when he saw him. (Tr. \n27-28)  He also admitted that he would expect some type of limitation rating but that he \nwould always want to improve the limitation if he could. (Tr. 29) \n Dr. Williams was also questioned about seeing the claimant in January when he \nplaced the claimant on light-duty, and that his later medical report of March 2023, when \nhe again saw the claimant, provided that the claimant had spasms in his neck and back \nbut made no mention about the finger.  Dr. Williams  testified he was aware of that, but \nthought that there were physical therapy notes at that time that concentrated on the finger \nas well.  Dr. Williams also admitted that when he was referring to Trigger Point injections \nand the note mentioned starting physical therapy, he was referring to the claimant’s back.  \nHe  agreed  the  assessments  on  March  9  and  again  on  March  28,  as  well  as  the \nassessment on April 6 made no mention of the finger.  He also admitted the April 6 note \nmentioned that the claimant was feeling good with a good range of motion of the cervical \nand lumbar spine and that the claimant, “should slowly return to normal activity over the \nnext few days.  I will see him as needed.”  He agreed this was the last time he saw the \nclaimant and the note made no provision to the finger. (Tr. 30-32)   \n Dr. Williams was then questioned about the claimant’s slip and fall at the restaurant \nand the need for treatment of his finger.  He responded, “You know, I think -- in the fall, I \nthink that -- that he needed treatment for his neck, back, and finger at the same time.”  He \nopined that he felt the treatment sought was related to the slip and fall and the workers’ \ncomp.  “I think the fall exacerbated the previous finger injury that he had.” (Tr. 33) \n\nTHOMPSON – H204763 \n \n6 \n \n On  redirect,  Dr.  Williams  admitted  he  treated  the claimant’s  hand  on  multiple \noccasions with paraffin baths and some sort of needle treatment, with physical therapy. \n(Tr. 34) \n Juan Jose Jackson was then called by the claimant.  Mr. Jackson testified that he \ncurrently worked as a manager with Cracker Barrels Company in Hot Springs and  had \npreviously worked as the District Manager for Denny’s, and the claimant worked at one \nof the seven (7) locations he supervised.  He had several phone calls with the claimant, \nbut  did  not  remember  the  context  of  those  calls.    After  some  discussion,  Mr.  Jackson \nremembered  the  claimant  brought  in  a  note  indicating  that  he  needed  not  to  work \n“because he had an accident somewhere.  And I contacted Human Resources, and they \nsaid, ‘Well, when he gets his full release, tell him he can come back to work,’ and that’s \nwhat I told him.”  He went on to testify he called the claimant and asked if he could return \nto work because they needed him and he never heard back from him.  This conversation \ntook place some time in January.  He thought the claimant brought the doctor’s note in, \naround January 12\nth\n or the 13\nth\n, roughly. (Tr. 35-40)  \n Mr. Jackson was aware that there was additional litigation involving an EEOC claim \nbetween the parties which involved discrimination-based issues.  After a brief discussion \nabout the EEOC claim, Mr. Jackson was asked what his relationship with the claimant \nhad been and he responded as follows: \n“It was very good.  And to answer your question, at many locations, I had to be, if \nyou will a mediator or sit down between a manger and an employee and discuss \nbehavior issues or counseling issues, you know, and so I -- I thought I had a good \nwork relationship with Kirk.  Yes, there were several times we sat down to address \nseveral issues.  I thought Kirk was a good hostess, and I told him that on many \noccasions, and we needed him Thursday, Friday, Saturday, Sunday, and he did a \ngood job. (Tr. 44, 45) \n \n\nTHOMPSON – H204763 \n \n7 \n \n Under cross-examination, Mr. Jackson testified he no longer worked for Den-Tex, \nbut left on good terms.  He admitted having a conversation with the claimant involving the \nfall at the local restaurant, which was not a work-related issue.  Mr. Jackson also testified \nthe claimant was to work as a hostess on Thursdays, Fridays, Saturdays, and Sundays, \nfor ten (10) hours on those days, at the rate of $15.00 an hour.  He admitted he did not \nhave the records of the hours worked in front of him, but the claimant called in and chose \nnot to work. “I was given complete instructions to give 40 hours every week.” (Tr. 46-47) \n Under redirect-examination, Mr. Jackson testified that if the claimant had a therapy \nor doctor’s appointment, he was allowed to go and admitted that he wasn’t aware of the \nday to day coming and going due to the fact he supervised multiple locations. (Tr. 48-49) \n The claimant was then called and testified he had gone to work for Denny’s with \nexperience  as  a  cook,  cut  his  finger  in  April,  and  after  that  it  seemed  his  relationship \ndeteriorated.  He agreed he had worked 32.42 hours the first week due to the fact he was \ntraining  but  he  was  never  trained.    The  records  then  provided  that  his  biweekly  work \nincreased  significantly  with  91.85  hours  and  80.25  hours,  respectively,  after  the  initial \nweek when he was in cook training.  Then his hours decreased significantly per the wage \nrecords.    He  testified, “I  feel  like  once  I  --  you  know,  I  cut  my  finger,  I  felt  like  I  was \nexpendable to them.” (Tr. 50-52)  He admitted falling at Barnhill’s right around the first of \nDecember and that the respondents were aware of the injury.  He stated that he was still \nunder  Dr.  Grynwald’s  care,  but started  seeing  Dr.  Williams,  because  the  treatment  Dr. \nGrynwald provided was not working,  He went to therapy on January 12\nth\n, and received \na note he needed to be off work.  He then talked to Mr. Jackson on January 18\nth\n, where \nhe was told he no longer needed to come work until he talked to Bertha and obtained a \n\nTHOMPSON – H204763 \n \n8 \n \nrelease from the doctor.  He was then never called by Mr. Jackson.  He attempted to call \nBertha in regard to returning to work, but was  told he needed to contact the insurance \ncompany and she didn’t want anything else to do with it. (Tr. 53-54) \n In regard to pay periods, they consisted of two (2) weeks, with the first pay period \nappearing to be from March 24, 2022, to April 6, 2022.  The initial pay period provided \nthe claimant worked 32.42 hours, with no records of the exact start date. (Tr. 56) \nUnder cross-examination, the claimant agreed it sounded about right that his injury \noccurred on April 30.  He was asked about his work records and stated that from April 21 \nthrough May 4, he worked more than forty (40) hours per week.  He agreed that from May \n5  through  May  18,  he worked  forty  (40)  hours  each  week, plus 7.78  hours of overtime \nwhich was after his injury.  He denied being on light-duty at the time.  He stated he went \nto the doctor after that.  He was then moved to the hostess job after the surgery on his \nbirthday which was June 28 and was not out of work for very long.  “They were working \nme  good  even  after  I  cut  that  finger,  they  were,  and   I  just  couldn’t  take  it  no \nmore.” (Tr. 56-57)  The claimant agreed he was off work from June 1 through July 27, \nand  that  was  probably  the  period  when  he  received  TTD  benefits.    He  also  agreed  it \nsounded about right that he worked twenty-eight and one-half (28 ½) hours from August \n3 through August the 10.  He was then questioned about the hours he had worked being \nall  over  the  place,  and  admitted  he  had  his  fall  on  December  6\nth\n,  missing  work  from \nDecember 7\nth\n through December 14\nth\n. (Tr. 58-59)  “I was going through therapy with the \nfinger with Dr. Grynwald plus the injury happened.”  He was asked about therapy on June \n15, April 24, June 28, July 5, 12,13, 18, and 20, August 3, 29, and 30, and admitted the \ntherapy  lasted  between  one  (1)  and  one  and  a  half  hours (1-1/2).    (Tr.  60)_ “If  Dr. \n\nTHOMPSON – H204763 \n \n9 \n \nGrynwald  told me to go to therapy, I worked and I went to therapy.”  Denny’s graciously \nsupplied him a cab to go to and from therapy due to the medications he had been placed \non.  When he was transferred to the host position and light duty, he never received forty \n(40) hours again. (Tr. 61) \nIn regard to the slip and fall, the claimant admitted that he had injured his neck, \nback, shoulder, and finger, due to the fact that he attempted to brace himself when he fell \nand further contended that x-rays showed nothing else was wrong with his finger. (Tr. 62) \nOn  re-direct,  the  claimant  agreed  he  was  working  fewer  hours  while  he  was  on \nlight-duty.  He also agreed that he received the same rate of pay as a hostess  that he \nreceived as a cook. \nThe claimant introduced seventy (70) pages of medical records without objection.  \nThe  claimant  presented  to  Katelyn  Saeler,  OTR,  on  June  15,  2022,  in  regard  to  a \nBoutonniere deformity and a laceration of the left finger tendon, while under the treatment \nof  Dr.  Grynwald.    Therapeutic  exercises  were  performed  to  resolve  decreased  joint \nmobility and joint stability, along with decreased fine motor coordination, dexterity, and \nstrength. (Cl.Ex.1, P.1-4)  The claimant returned to occupational therapy on June 24\nth\n and \nJune 28\nth\n, presenting to William Camden, OTR. (Cl.Ex.1, P. 5-15)   \nThe claimant saw Dr. Grynwald on June 28\nth,\n and the report provided the claimant \nwas  seen  in  orthopedic  urgent  care  three  (3)  weeks  after an  injury  involving  a  tendon.  \nThe finger splint was removed, and the claimant was doing well with no sign of infection.  \nThere was no swelling of the finger or erythema.  A slight hyperextension of the DIP joint \nwas noted with persistence of the boutonniere deformity.  Surgery had occurred on June \n3, 2022.  In regard to work restrictions, the report provided that the splint must be worn, \n\nTHOMPSON – H204763 \n \n10 \n \nbut  there  should  be  no  gripping  or  lifting  with  the  left  hand.    Claimant  should  reach \nmaximum  medical  improvement  approximately  three  (3)  months  after  his  surgery. \n(Cl.Ex.1,P. 25-28)  \nThe claimant continued occupation therapy with William Camden, OTR, on July 5, \n2022, who provided the claimant was right-hand dominant and was still reporting pain in \nthe  left  long  finger.  Exercises  were  performed.  (Cl.Ex.1,P.  20-24)    The  claimant  again \nreported to Dr. Grynwald a few days later, on July 12, 2022.  Dr. Grynwald opined that \ndue to the tightness of the PIP joint, the claimant might require a revision and a possible \nFowler tenotomy.  A left boutonniere deformity was again noted. (Cl.Ex.1, P. 25-28) \nThe claimant continued with occupation therapy on July 12, 13, 18, 20,\n  \nand August \n3,  2022.  (Cl.Ex.1,  P.  29-53)    On  August  29,  2022,  the  claimant  presented  to  Kristen \nRoberson,  COTA,  and  numerous  exercises  regarding  the  left  hand  were  performed. \n(Cl.Ex.1, P. 54-58)  On August 30, 2022, the claimant received a three-phase bone scan \nand the report provided the findings were not typical findings for complex regional pain \nsyndrome.  (Cl.Ex.1,P.59)    The  claimant  then  returned  to  occupational  therapy  the \nfollowing day, August 31, 2022.  The report provided there had been an increase range \nof motion in the left finger and that the patient would achieve a sufficient increase in finger, \nwrist, and forearm range of motion and hand strength to be independent of ADL’s at home \nand in leisure activities within 3-6 months with a functional limitation percentage of zero \npercent (0%). \nA  letter  from  Dr. Williams  dated  December  15,  2022, provided  that  the  claimant \ncould  return  to  work  on  December  19,  2022.    A  second  letter  from  Dr.  Williams  dated \nDecember 29, 2022, provided the claimant was to return to work on January 2, 2023.  A \n\nTHOMPSON – H204763 \n \n11 \n \nthird letter from Dr. Williams dated February 23, 2023, provided that due to an injury of \nthe claimant’s left long finger and left shoulder as a result of a work accident on April 30, \n2022, and due to the symptoms of the claimant, it was necessary to continue treatment \nof the regions to improve range of motion. (Cl.Ex.1, P.65-67)  Finally, a report from Kristen \nWagner, P.A., dated July 29, 2022, provided there was a limit with the left hand.  (Cl.Ex.1, \nP.68) \nThe  claimant  also  submitted  the  respondents’  response  to  the  Request  for \nAdmissions as claimant’s exhibit two and it was admitted without objection \nThe  respondents  introduced  medical  records  without  objection  that  consisted  of \none  hundred  twenty-nine  (129)  pages  plus  an  abstracted  medical  record  index,  which \nresulted in a total of one hundred forty-one (141) pages.  The records provided that the \nclaimant originally presented to Christopher Vinson, NP, on May 23, 2022, in regard to \nleft hand pain in the left long finger from a knife cut.  Swelling and tendon damage were \nnoted with the claimant unable to fully extend the finger at the PIP joint.  The problems \nbegan on April 30, 2022, when the claimant sustained a laceration over the dorsal aspect \nof  the  long  finger  PIP  joint.  (Resp.Ex.1,  P.1-3)    The  claimant  then  presented  to  Dr. \nGrynwald on May 25, 2022.  The report provided a 15mm oblique scar over the PIP joint \nof the left finger was noted as well as a boutonniere deformity.  The plan was to repair \nthe long finger extensor tendon, with a pinning of the PIP joint.  Work restrictions for the \nleft hand were noted as pinch only.  (Resp.Ex.1, P. 4-6)  Dr. Grynwald’s operative note of \nJune  3,  2022,  provided  the  presence  of  an  extensor  tendon  laceration  of  the  left  long \nfinger with a boutonniere deformity of the left long finger.  A repair of the left long finger \n\nTHOMPSON – H204763 \n \n12 \n \nextensor tendon was performed with an extension pinning of the proximal interphalangeal \njoint. (Resp.Ex.1, P. 7-8)    \nThe  claimant  returned  to  see  Kristen  Wagner, P.A., on June 15, 2022, for a \npost-surgery follow-up.  The report provided for work restrictions until the left thumb and \nindex finger could be used to pinch items.  Maximum medical improvement  should take \napproximately three (3) months, being approximately September 3, 2002. (Resp.Ex.1, P. \n9-12)   The  claimant  returned  to  Dr.  Grynwald  on  June 28,  2022,  for  another  follow-up, \nwhere  Dr.Grynwald  continued  the  work  restrictions  and  removed  the  Kirschner  wire. \n(Resp.Ex.1, P.13-18)  The claimant again returned to Dr. Grynwald on July 12, 2022, for \nanother office visit as described in the claimant’s medical. \nThe claimant was seen by William Camden, OTR, on July 25, 2025, in regard to \noccupational  therapy.  (Resp.Ex.1,  P.  23-27)   He  then  presented  to  Kristen  Roberson, \nCOTA, on July 27, 2022, for an improvement of range of motion.  Claimant reported pain \nand hypersensitivity in the DIP joint and manual exercises were limited due to the pain. \n(Resp.Ex.1, P.28-32)  Two (2) days later, the claimant presented to Kristen Wagner, PA.  \nModerate swelling was noted around the dorsum of the PIP joint.  A three-phase bone \nscan was then ordered with work restrictions to the left hand issued where the claimant \nwas  not  to  lift  or  grip  over  five  (5)  pounds.  (Resp.Ex.1,  P.  33-36)  The  claimant  then \nreturned to Kristen Roberson, COTA, on August 1, 2022, and again on August 8, 2022.  \nThe  manual  range  of  motion  was  better  tolerated  and  although  there  was moderate \nswelling, the pain had decreased on the second of the two visits and the second report \nprovided that the work release would be changed. (Resp.Ex.1, P. 37-46)  The claimant \ncontinued to return to various occupational therapists on the dates of August 10, 15, 17 \n\nTHOMPSON – H204763 \n \n13 \n \nand the 22.  The report of August 22, provided that pain was still noted and the functional \nlimitation was at 86.3%. (Resp.Ex.1, P. 47-67)  \nThe next visit to Dr. Grynwald  on August 23, 2022, noted moderate swelling over \nthe PIP joint with hypersensitivity at the dorsum of the PIP joint.  A Fowler tenotomy was \nrecommended.      A   five   (5)   pound   lifting/griping   restriction   of   the   left   hand   was \nrecommended  with  no  pinching  use  of  the  index  finger.  (Resp.Ex.1,  P.68-71)   The \nclaimant then returned to William Camden, OTR, on September 26, 2022, and the therapy \nnote  indicated  finger  soreness,  but  that manual therapy was tolerated. (Resp.Ex.1, P. \n72-76)    The  claimant  then  again  returned  to  Dr.  Grynwald  on  October  3,  2022,  and  a \nprocedure was performed where there was an immediate release of the hyperextension \nof  the  long  finger,  coming  to  rest  at  neutral.    The  skin  was  closed  with  sutures.    A \nboutonniere  deformity  was  again  noted.  (Resp.Ex.1,  P. 77-79)    The  claimant  then \nreturned to Kristen Wanger, PA, on October 7, 2022, for a post-procedure follow-up where \nshe ordered physical therapy.  Active flexion at the PIP and DIP joints was noted.  Work \nrestrictions until October 17, 2022, were still in place. (Resp.Ex.1, P. 80-83)   \nThe claimant returned to Dr. Grynwald  on October 18, 2022, November 1, 2022, \nand again on November 21, 2022.  On the October 18, 2022, visit, there was 20 degrees \nof  active  flexion,  and  later  on  the  November  1,  2022  visit,  with  on-going  occupational \ntherapy and home exercises, active range of motion was from 20 to 65 degrees.    Pain \nwas still noted and there with a two-pound max lift grip extension of the left hand.  On the \nNovember 21, 2022, visit, an active range of motion of the PIP joint of the long finger was \nnoted at 16-80 degrees.  There was no hyperextension of the DIP joint and active flexion \n\nTHOMPSON – H204763 \n \n14 \n \nof the DIP joint of 0 to 35 degrees was noted.  Work restrictions were the same, but with \ngradual increasing limitations likely postoperatively. (Resp.Ex.1, P. 84-95) \nThe claimant returned to Dr. Grynwald on December 5, 2022, the last visit prior to \nthe  fall  at  Barnhill’s.    The  report  provided  that  the  active  range  of  motion  was  much \nimproved with good active flexion and extension and the claimant had the ability to make \na composite fist.  No hyperextension of the DIP Joint was noted.  Two (2) more weeks of \ntherapy  were added.   The  claimant  was told  he  could  return  to  full  activity  with a  work \nrestriction  of  ten  (10)  pound  max  grip  and  lift  restriction  for  two  (2)  weeks  and  then \ngradually increase over eight (8) weeks. (Resp.Ex.1. P. 96-99) \nAfter the claimant’s injury at Barnhill’s, he presented to Christopher Vinson NP, on \nDecember  7,  2022.    The  records  provided  the  claimant  had  slipped  and  fell  hitting  his \nhead, neck, lower back, and jamming the index finger of his left hand.  He was urged to \ngo to the Emergency Room in regard to the head injury.  He was instructed that he could \nreturn to work on December 12, 2022. (Resp.Ex. 1. P. 100-104) \nThe claimant’s visit to Dr. Williams was mentioned in the claimant’s exhibits. The \nx-rays were normal but degenerative changes were observed.  Finger pain was noted in \nthe left index finger and the palm of the left hand.  Decreased range of motion with both \nflexion    and    extension    of    the    left    middle    finger    was    noted    due   to    the    pain. \n(Resp.Ex.1, P. 105-107)   The claimant presented to Meagan Celsor, NP, on December \n21, 2022, with complaints of neck and back pain. (Resp.Ex. 1, P.22)  The records provided \nthat the claimant returned to Dr. Victor Williams on December 29, 2022, with complaints \nof  pain  in  the  left  index  finger  as  well  as  the  cervical  and  lumbar  spine. (Resp. \nEx.1, P.111-113) \n\nTHOMPSON – H204763 \n \n15 \n \nThe claimant then again returned to Dr. Grynwald on January 10, 2023.  The report \nstated  the  surgical  scars  had  healed  and  the  claimant  was  able  to  touch  his  left  long \nfingertip to his palm with good flexion of 40 degrees of the DIP joint and MPJ flexion to \n90  degrees.    The  claimant  was  released at  maximum  medical  improvement  for  a \ncombined rating to the finger of twenty-six percent (26%). \nAfter the last visit to Dr. Grnwald, the claimant returned to Dr. Williams on January \n12, 2023, and on January 23, 2023.  On the first visit, continued pain    of the left long finger \nand hand as well the left shoulder neck and back with spasms of the neck and back were \nnoted.  This report also noted range of motion problems with the DIP joint.  An off-work \nslip  for  January  12,  2023  to  January  15,  2023,  was  issued  with  light-duty  starting  on \nJanuary 16, 2023.  Dr. William’s report of January 23, 2023, provided a treatment letter \nto continue treating the left long finger and shoulder. (Resp.Ex.1, P.119-122) \nThe claimant continued to return to Dr. Williams on the dates of March 9, 2023,  \nMarch 28, 2023, April 6, 2023, and May 1, 2023.  The reports provided that the claimant \nwas suffering from continued neck and back pain and that the claimant received injections \nin the bilateral trapezius and right lumbar paraspinous muscle trigger point with the restart \nof physical therapy.  The claimant’s range of motion had improved as noted in the April \nvisit.  A note to return to work without restrictions was provided on May 1, 2023.  (Resp. \nEx.1, P.123-129) \nThe respondent also introduced the claimant’s wage records and temporary total \ndisability payment history, without objection, which provided that the claimant’s initial pay \nperiod began on March 24, 2022, and ran for a two-week period, with a total of only 32.42 \nhours worked.  Beginning for the pay period starting on April 7, 2022, and running through \n\nTHOMPSON – H204763 \n \n16 \n \nApril 20, 2022, the claimant worked a total of 91.85 hours, which included overtime for \nthe  two-week  period,  and  worked  overtime  until  the  pay  period  running  from  May  19, \n2022, and running through June 1, 2022.  From that date forward, the records provided \nthat the claimant worked less than a forty (40) hour week, with the last pay period being \nfrom  January  12,  2023,  through  January  25,  2023,  with  only  6.10  hours  worked.  \nTemporary total disability payment records were also provided.  (Resp.Ex. 2, P. 1-6)   \nDISCUSSION AND ADJUDICATION OF ISSUES \n \nIn  determining  whether  the  claimant  has  sustained  his  burden  of  proof,  the \nCommission shall weigh the evidence impartially, without giving the benefit of the doubt \nto either party.  Arkansas Code Annotated §11-9-704.  Wade v. Mr. Cavananugh’s, 298 \nArk.  364,  768  S.W. 2d  521  (1989).    Further, the  Commission  has  the  duty to  translate \nevidence  on  all  issues  before  it  into  findings  of  fact.   Weldon  v.  Pierce  Brothers \nConstruction Co., 54 Ark. App. 344, 925 S.W.2d 179 (1996).  \nIn regard to the average weekly wage, Ark. Code Ann. §11-9-518(a)(1) provides \nthat  compensation  shall  be  computed  on  the  average  weekly  wage  earned  by  the \nemployee under the contract of hire at the time of the accident and in no case shall it be \ncomputed on less than a full-time work week in the employment.  The Arkansas Court of \nAppeals stated  that even in cases where the claimant’s wage records show that some \nweeks the claimant worked less than a full week under the contract of hire, the average \nweekly  wage  should  still  be  based  upon  on a  full-time  work  week. Johnson  v.  Abilities \nUnlimited, Inc., 2009 Ark. App. 866, 9, 372 S.W.3d 838, 843 (2009).  After reviewing the \npayroll records, it is determined that the initial two (2) weeks of the claimant’s employment \nwhere the claimant worked less than forty (40) hours per week were for training and these \n\nTHOMPSON – H204763 \n \n17 \n \nfindings correspond with the testimony of the claimant.  After that, the claimant worked \novertime during the next two (2) full weeks of employment.   Consequently, the average \nweekly wage is found to be $688.06, making the temporary total disability benefit rate and \nthe permanent partial disability benefit rate  $445.00 and $334.00, respectively.  Based \nupon this finding, the claimant is found to be entitled to a total of $5,340.00 for temporary \ntotal disability, less the benefits already paid and the applicable attorney fees, as spelled \nout by the Arkansas Workers’ Compensation Act.    \nIn regard to the issue of the claimant’s entitlement to temporary partial disability \nbenefits, an employee has the burden of proving, by a preponderance of the evidence, \nthat he remains in his healing period and that he suffers a partial incapacity to earn wages.  \nAmay v. Newberry’s 3N Mill, 102 Ark. App. 119, 282 S.W.3d 269 (2008).  The healing \nperiod is that period for healing from an accidental injury that continues until the employee \nis as far restored as the permanent character of his injury will permit and that ends when \nthe underlying condition causing the disability has become stable and nothing in the way \nof new treatment will improve that condition.  Farmers Coop V. Billes, 77 Ark. App. 1, 69 \nS.W.3d 899 (2002).  In the present matter, the primary treating surgeon who performed \nsurgery on the left middle index finger and the follow up, Dr. Grynwald, opined that the \nclaimant reached MMI on January 10, 2023, and that he had suffered a disability rating \nto  the  left  middle  index  finger  of  twenty-six  percent  (26%),  which was  accepted  by  the \nrespondents.  Dr. Grynwald is in fact a hand surgeon.  During the treatment period, the \nclaimant  also  began  seeing  Dr.  Williams,  a  general  and  thoracic  surgeon,  after  the \nclaimant suffered a slip and fall injury at Barnhill’s, injuring his back, shoulder, head, and \nagain  injuring  his  left  middle  index  finger.    There  was  no  allegation  that  the second \n\nTHOMPSON – H204763 \n \n18 \n \naccident was work-related.  Dr. Williams opined that the claimant remained in his healing \nperiod until at least the end of January.  Dr. Williams was clearly a caring and talented \ndoctor who felt that the claimant’s finger could further improve after he started treating \nhim in regard to the slip and fall.  He also agreed Dr. Grynwald was more experienced in \nregard  to  hand  injuries,  and  if  the  claimant had initially presented to him after the \nwork-related  knife  injury  to  his  hand,  he  would  have  referred the  claimant  to  a  hand \nsurgeon.    \nThe Commission has the duty of weighing medical evidence, and the resolution of \nconflicting evidence is a question of fact for the Commission.  It is well settled that the \nCommission has the authority to accept or reject medical opinions and to determine the \nmedical soundness and probative force of the opinions.  Williams v. Ark. Dept. of Cmty \nCorr.  2016  Ark.  App.  427,  502  S.W.3d  530  (2016).    Consequently,  the  opinion  of  Dr. \nGrynwald, the hand surgeon who treated the claimant for an extended period of time, is \nfound to be controlling in regard to the claimant reaching MMI on January 10, 2023, and \nconsequently, no additional temporary partial disability payments are due after that date. \nIn regard to additional temporary partial disability from April 30, 2022, the admitted \ndate  of  the  claimant’s  work-related  injury, to  January  10,  2023,  the  date  the  claimant \nreached MMI as determined by Br. Grynwald,  an office note of July 29, 2022, by Kristen \nWagner, PA, provided that the claimant’s work restrictions to the left hand were limited to \nfive (5) pounds lifting and griping. This would appear to be well within the range of work \na hostess would perform.  Mr. Juan Jose Jackson, who worked as the district manager \nfor Denny’s over seven (7) restaurants at the time of the claimant’s injury, and who is now \nemployed by Cracker Barrel, testified that he was instructed to provide the claimant forty \n\nTHOMPSON – H204763 \n \n19 \n \n(40) hours of work a week as a hostess. This job would result in work for ten (10) hours \na  day,  four  (4)  days a  week.    He  felt that  the  claimant made an excellent  hostess  and \nstated that they needed him.  The pay was the same for both the cook and hostess jobs, \n$15.00  an  hour.    Mr.  Jackson  testified  that  when  he  called  the  claimant  asking  him  to \nreturn because they needed him, he never heard back from him.  During Mr. Jackson’s \ntestimony, it appeared that he genuinely liked the claimant, and his testimony was found \nto be believable.  He no longer works for the respondent and therefore is not influenced \nby the respondent.  It is common knowledge that nearly all restaurants have had a difficult \ntime  obtaining  capable  workers  since  the  start  of  COVID.    The  employment records \nprovide  that  the  claimant  appeared  to  regularly  appear  for  work  after  the work-related \ninjury  on  April  30,  2022,  until  the  date  of  June  1,  2022,  approximately  the  date  of  the \nclaimant’s initial surgery to his middle index finger of the left hand.  It is noted that the \nclaimant’s  hours actually  worked,  decreased  after  the  approximate  time  of  the  initial \nsurgery, and ended after  Dr. Grynwald opined that the claimant had reached MMI and \nafter the slip and fall accident.  However, it is found that work at the same pay rate that \nthe claimant could perform was in fact available during this period.  \nBased  upon  the  above  and  the  wage  rate  of  $699.06  per  week,  the claimant  is \nfound to be entitled to the difference of temporary partial disability benefits in the amount \nof  $3,213.08,  less  what  he  has  already  received  and  the  applicable  attorney  fees  as \nspelled out by the Arkansas Workers’ Compensation Act. \nFinally,  in  regard  to  the  issue  of  additional  medical,  the  law  is  clear  that  the \nemployee has the burden of proving, by a preponderance of the evidence, that medical \ntreatment is reasonably necessary.  Stone v. Dollar General Stores, 91 Ark. App. 260, \n\nTHOMPSON – H204763 \n \n20 \n \n209 S.W.3d 445 (2005).  Dr. Grynwald, who originally treated the claimant for the injury \nof the left middle index finger and performed surgery on it, opined that the claimant had \nreached MMI on January 10, 2023, and suffered a twenty-six (26%) disability rating to the \nfinger.  He  ordered  no  additional  medical  treatment  of  any  type  on claimant’s  last  visit, \nwhich was prior to the unrelated slip and fall at Barnhill’s.  Consequently, it is found that \nthe  claimant  has  failed  to  satisfy  the  burden  of  proof  that  he  is  entitled  to  additional \nmedical treatment by the respondent.    \nAfter weighing the evidence impartially, without giving the benefit of the doubt to \neither  party,  it  is  found  that  the  claimant  earned  an  average  weekly  wage  of  $688.06, \nwhich would entitle him to a temporary total disability/permanent partial disability rate of \n$445.00/$334.00,  respectively.    He  is  found  to  be  entitled  to  temporary  total  disability \nbenefits of $5,340.00.00, less what he has already received and the applicable attorney \nfees  as  spelled  out  by  the  Arkansas  Workers’  Compensation  Act.    Additionally,  based \nupon the determined average weekly wage, he is also found to be entitled to permanent \npartial disability payment benefits of $3,213.08, less what he has already received  and \nthe applicable attorney fees as spelled out by the Arkansas Workers’ Compensation Act.  \nIt is further found the claimant has failed to satisfy the required burden of proof that he is \nentitled to additional medical treatment. This Award shall bear interest at the legal rate \npursuant to Ark. Code Ann. §11-9-809.   If not already paid, the respondents are ordered \nto pay the cost of the transcript forthwith. \nIT IS SO ORDERED. \n  \n \n       ___________________________ \n      JAMES D. KENNEDY \n      Administrative Law Judge","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H204763 KIRKLIN V. THOMPSON, EMPLOYEE CLAIMANT VS. DEN-TEX CENTRAL, INC. d/b/a DENNY’S CORPORATION, EMPLOYER RESPONDENT WESCO INSURANCE COMPANY, CARRIER / AMTRUST NORTH AMERICA, TPA RESPONDENT OPINION FILED FEBRUARY 13, 2024 Hearing before Administrative La...","fetched_at":"2026-05-19T22:57:20.694Z","links":{"html":"/opinions/alj-H204763-2024-02-13","pdf":"https://labor.arkansas.gov/wp-content/uploads/THOMPSON_KIRKLIN_H204763_20240213.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}