{"id":"alj-H204774-2023-07-19","awcc_number":"H204774","decision_date":"2023-07-19","opinion_type":"alj","claimant_name":"Felicia Parker","employer_name":"University Of Arkansas For Medical Sciences","title":"PARKER VS. UNIVERSITY OF ARKANSAS FOR MEDICAL SCIENCES AWCC# H204774 JULY 19, 2023","outcome":"granted","outcome_keywords":["granted:2","denied:2"],"injury_keywords":["neck","back","knee"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/Parker_Felicia_H101899_20230719.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Parker_Felicia_H101899_20230719.pdf","text_length":18876,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H101899 \n \nFELICIA PARKER, EMPLOYEE CLAIMANT \n \nUNIVERSITY OF ARKANSAS \nFOR MEDICAL SCIENCES, SELF-INSURED EMPLOYER RESPONDENT \n \nPUBLIC EMPLOYEE CLAIMS DIVISION, CARRIER/TPA                      RESPONDENT \n \nOPINION FILED JULY 19, 2023 \n \nHearing before Administrative Law Judge Steven Porch on June 20, 2023, in Little Rock, \nArkansas. \n \nClaimant  represented  by  Ms.  Sheila  F.  Campbell,  Attorney  at  Law,  North  Little  Rock, \nArkansas. \n \nRespondents  represented  by  Mr.  Charles  H.  McLemore,  Attorney  at  Law,  Little  Rock, \nArkansas. \n \nSTATEMENT OF THE CASE \n \n A hearing was held on this claim on June 20, 2023.  Claimant was represented by \nMs.  Sheila  F.  Campbell,  Attorney  at  Law  of  North  Little  Rock,  Arkansas;  Respondents \nwere represented by Mr. Charles H. McLemore, Attorney at Law of Little Rock, Arkansas. \nSTIPULATIONS \n By agreement of the parties, the stipulations applicable to this claim are as follows: \n1. The Arkansas Workers’ Compensation Commission has jurisdiction \nof this claim. \n \n2. An  employer/employee  relationship  existed  on  February  4,  2021, \nwhen  Claimant  sustained a  compensable  injury  to  her  head, neck, \nand  back,  for   which   certain  benefits   have   been  paid  by   the \nRespondents, \n \n3. The  Claimant’s  average  weekly  wage  on  February  4,  2021,  was \nsufficient to entitle her to compensation rates of $407.00 and $305.00 \nfor   temporary   total   and   permanent   partial   disability   benefits, \nrespectively; and, \n \n\nPARKER H101899 \n \n2 \n \n 4.  The  Respondents have controverted the additional benefits sought \nherein,  inclusive  of  the  Claimant’s  alleged  bilateral  knee  injuries  of \nFebruary 4, 2021. \n \nISSUES \n The parties have identified the following issues to be adjudicated: \n1.  Whether  the  Claimant  is  entitled  to  additional  reasonably  necessary  medical \ncare in relation to her compensable head, neck, and back injuries of February \n4, 2021. \n \n2.  Whether Claimant sustained compensable bilateral knee injuries on February \n4, 2021, and is entitled to appropriate benefits associated therewith. \n \n3.  Whether  Claimant  is  entitled  to  additional  temporary  total  disability  benefits \nfrom March 23, 2021, through a date yet to be determined, in relation to her \ncompensable head, neck, and back injuries of February 4, 2021.  \n \n4.  Whether  Claimant  provided  sufficient  notice of  her  alleged  left  knee  injury  of \nFebruary 4, 2021, in accordance with A.C.A. §11- 9-701. \n \n5.  Attorney’s fees with respect to controverted indemnity benefits.  \n \nAll other issues are reserved. \n \nCONTENTIONS \n \nClaimant’s  and  Respondents’  contentions  are  set  out  in  their  responses  to  the \nPrehearing Questionnaire.  Said contentions are hereby incorporated by reference.  \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n After  reviewing  the  record  as  a  whole,  including  medical  reports,  documents, \nClaimant and Respondents’ post hearing briefs that are blue-backed and made a part of \nthis  record  and  other  matters  properly  before  the  Commission,  and  having  had  an \nopportunity  to  hear  the  testimony  of  the  Claimant,  the  sole  witness in  this  claim, and \nobserve her demeanor, I hereby make the following findings of fact and conclusions of \nlaw in accordance with Ark. Code Ann. § 11-9-704 (Repl. 2012): \n\nPARKER H101899 \n \n3 \n \n1.  The  Arkansas  Workers’  Compensation  Commission  has  jurisdiction  over  this \nclaim. \n2.  The stipulations set forth above are reasonable and are hereby accepted.  \n3.  The Claimant is entitled to additional medical treatment for her head, neck, and \nback injuries of February 4, 2021. \n4.   The  Claimant  is  entitled  to  additional  temporary  total  disability  benefits  from \nMarch 23, 2021, through a date to be determined. \n5.   Claimant did not  sustain a compensable bilateral knee injury on February 4, \n2021. \n6.  Claimant is entitled to controverted attorney fees. \nCASE IN CHIEF \nSummary of Evidence \n The  sole  witness  at  the  hearing  was  the  Claimant.  In addition  to the  prehearing \norder  discussed  above, I  also  admitted  into  evidence Claimant’s  and  Respondent’s \nexhibits that were properly admitted before the Commission. Claimant suffered an injury, \nduring  the  course  and  scope  of  her  employment  with  the  University  of  Arkansas  for \nMedical Sciences (hereinafter, “UAMS”), as a travelling medical assistant, when she was \ninvolved in a motor vehicle incident while heading to another patient’s home injuring her \nhead, neck, and back. Claimant was driving a vehicle owned by UAMS at the time of the \nvehicle   incident.   Respondents   accepted   the   head,   neck,   and   back   injuries   as \ncompensable. Since the vehicle incident, Claimant has received treatment for her neck \nand back. Dr. Michael Cassat ordered physical therapy and also sent Claimant to a spine \nand  pain  clinic  to  receive  some  nerve  blockers.  Both  treatment  efforts  provided  some \n\nPARKER H101899 \n \n4 \n \nbenefit to the Claimant. Despite these efforts, Claimant still had significant pain from her \ninjuries. Nevertheless, Dr. Cassat released Claimant to return to light duty work on March \n15, 2021. \nThe Respondent offered Claimant a position as a Phone MA where she would help \nschedule client visits and refills. The Claimant continued to have difficulties and be in pain \nwhile  attempting  to perform  her  new  job  duties.  Subsequently,  the Claimant  requested \nand  received  approval  for  a  change  of  physician  to  Dr.  Ahmad  Ghaleb  from the \nCommission.  The  Claimant  made  the  request  because  she  was unable  to  sit  or  stand \ncomfortably which resulted in her missing substantial time from work. Claimant was later \nfound to be disabled by the Social Security Administration.   \nAdjudication \nA.  Whether Claimant is entitled to additional reasonably necessary medical care \nin  relation  to  her  compensable  head,  neck,  and  back  injuries  of  February  4, \n2021. \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, Inc. \nv. Brown, 82 Ark. App. 600, 120 S.W.3d 153 (2003).  But employers are liable only for \nsuch treatment and services as are deemed necessary for the treatment of the claimant’s \ninjuries.  DeBoard v. Colson Co., 20 Ark. App. 166, 725 S.W.2d 857 (1987).  The claimant \nmust prove by a preponderance of the evidence that medical treatment is reasonable and \nnecessary for the treatment of a compensable injury.  Brown, supra; Geo Specialty Chem. \nv. Clingan, 69 Ark. App. 369, 13 S.W.3d 218 (2000).  What constitutes reasonable and \n\nPARKER H101899 \n \n5 \n \nnecessary   medical   treatment   is   a  question   of  fact  for   the   Commission.   White \nConsolidated  Indus.  v.  Galloway,  74  Ark.  App.  13,  45  S.W.3d  396  (2001); Wackenhut \nCorp. v. Jones, 73 Ark. App. 158, 40 S.W.3d 333 (2001). \n As the Arkansas Court of Appeals has held, a claimant may be entitled to additional \ntreatment  even  after  the  healing  period  has  ended,  if  said  treatment  is  geared  toward \nmanagement of the injury.  See Patchell v. Wal-Mart Stores, Inc., 86 Ark. App. 230, 184 \nS.W.3d 31 (2004); Artex Hydrophonics, Inc. v. Pippin, 8 Ark. App. 200, 649 S.W.2d 845 \n(1983).  Such services can include those for the purpose of diagnosing the nature and \nextent  of  the  compensable  injury;  reducing  or  alleviating  symptoms  resulting  from  the \ncompensable  injury;  maintaining  the  level  of  healing  achieved;  or  preventing  further \ndeterioration of the damage produced by the compensable injury.  Jordan v. Tyson Foods, \nInc., 51 Ark. App. 100, 911 S.W.2d 593 (1995); Artex, supra. \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’s \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.  Id.  \nIn so doing, the Commission is not required to believe the testimony of the claimant or \nany other witness but may accept and translate into findings of fact only those portions of \nthe testimony that it deems worthy of belief.  Id. \nClaimant  has  continued  to  have  pain  in  her  neck  and  back  ever  since  her \ncompensable  February  4,  2021,  injury.  When  Claimant  was  released  by  Dr.  Cassat  to \nlight duty work, Claimant’s employer offered her a desk job. Claimant accepted that new \n\nPARKER H101899 \n \n6 \n \nassignment. But due to her work related back and neck injuries, sitting was uncomfortable \nfor her. As a result, she missed a lot of work in her new position. Dr. William Ackerman \nreviewed  the  patients  MRI  and  found  that  she  has  a  left  paracentral  disc  protrusion  at \nL1/2  with  compression  of  the  left  L2  nerve  root.  Dr.  Michael  Cassat’s  March  1,  2021, \nprogress note states that Claimant is suffering from a multilevel degenerative change with \nmultiple  herniations,  areas  of  central  and  foraminal  stenosis,  and  areas  of  facet \nhypertrophy. I find by the preponderance of evidence that Claimant’s release to light duty \nwork on March 15, 2021, was not the end of Claimant’s healing period. I do find by the \npreponderance of the evidence that claimant’s continued treatment of her neck and back \nwere  reasonable  and necessary  medical  care  related  to  her  compensable  head,  neck, \nand back injuries of February 4, 2021. As a result, the Respondents are ordered and shall \npay all Claimant’s bills for the treatment and pain management of her head, neck, and \nback. Though Respondent, at the full hearing, argued Claimant had a pre-existing back \ncondition  and  there  is  a  lack  of  objective  findings  for Claimant’s  head,  neck,  and  back \ninjuries, those issues were not properly before the Commission per the October 6, 2022, \nPre-Hearing  Order.  To  the  contrary,  both  parties  have  stipulated  in  that  Order  that \nClaimant’s  head,  neck,  and  back  injuries  were  compensable  and  that  certain  benefits \nwere paid. I have accepted those stipulations. Therefore, the issues of whether Claimant \nhad a  pre-existing  condition  and  new  objective  findings  will  not  be  addressed  in  this \nopinion. But this still leaves the question of whether the Claimant is entitled to temporary \ntotal disability benefits from March 23, 2021, to a date to be determined?   \nTemporary total disability for unscheduled injuries is that period within the healing \nperiod in which the Claimant suffers total incapacity to earn wages. Ark. State Highway \n\nPARKER H101899 \n \n7 \n \nand Transportation Dept. v. Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981). The healing \nperiod ends when the underlying condition causing the disability has become stable and \nnothing further in the way of treatment will improve that condition. Mad Butcher, Inc. v. \nParker,  4  Ark.  App.  124,  628  S.W.2d  582  (1982).  Claimant  continues  to  go  through \ntreatment for her neck and spine to improve her final condition. Pursuant to Dr. William \nAckerman’s  clinical  note  for  Claimant’s April  14,  2021,  visit he  makes  clear Claimant’s \ntreatment plan will be to “prevent progression of the patient’s chronic illness and provide \nsupportive care, so the patient is able to perform activities of daily living without restriction, \nbased  on her  current pathology.” No evidence  has been  presented  to  show  that  these \nefforts will not improve Claimant’s final condition. Claimant has missed large amounts of \nwork since her February 4, 2021, injury. Thus, I find by the preponderance of evidence \nthat Claimant is entitled to temporary total disability from March 23, 2021, to a date to be \ndetermined when she is stable or has reached maximum medical recovery. \nB.  Whether  Claimant  has  sustained  compensable  bilateral  knee  injuries  on \nFebruary 4, 2021, and is entitled to appropriate benefits? \n In  this  action,  Claimant  has  alleged  that  she  suffered  compensable  injuries  by \nspecific incident to her knee(s) on February 4, 2021, as she was heading to see her next \npatient  as  a  travelling  medical  assistant.  The  alleged  injury  occurred  during  a motor \nvehicle   incident   during   the   course   and   scope   of   her   employment   with   UAMS. \nRespondents  argued  that  this  injury  is  not  compensable  and,  in  the  alternative,  the \nClaimant failed to give timely notice. \n Arkansas Code Annotated § 11-9-102(4)(A)(i) (Repl. 2012), which I find applies to \nthe analysis of Claimant’s alleged injuries, defines “compensable injury”: \n\nPARKER H101899 \n \n8 \n \n(i) An accidental injury causing internal or external physical harm to the body \n.  .  .  arising  out  of  and  in  the  course  of  employment  and  which  requires \nmedical services or results in disability or death.  An injury is “accidental” \nonly if it is caused by a specific incident and is identifiable by time and place \nof occurrence[.] \nA compensable injury must be established by medical evidence supported by objective \nfindings.  Ark. Code Ann. § 11-9-102(4)(D) (Repl. 2012).  “Objective findings” are those \nfindings that cannot come under the voluntary control of the patient.  Id. § 11-9-102(16).  \nThe  element  “arising  out  of  .  .  .  [the]  employment”  relates  to  the  causal  connection \nbetween the claimant’s injury and his or her employment.  City of El Dorado v. Sartor, 21 \nArk. App. 143, 729 S.W.2d 430 (1987).  An injury arises out of a claimant’s employment \n“when  a  causal  connection  between  work  conditions  and  the  injury  is  apparent  to  the \nrational mind.”  Id. \n In Hudak-Lee  v.  Baxter  County  Reg.  Hosp.,  2011  Ark.  31,  378  S.W.3d  77,  the \nArkansas Supreme Court stated: \nIn order for an accidental injury to be compensable, it must arise out of and \nin  the  course of  employment.    Ark.  Code  Ann.  §  11-9-102(4)(A)(i)  (Supp. \n2009).  A compensable injury does not include an injury that is inflicted upon \nthe employee at a time when employment services are not being performed. \nArk.  Code  Ann.  §  11-9-102(4)(B)(iii)  (Supp.  2009).    The  phrase  “in  the \ncourse of employment” and the term “employment services” are not defined \nin  the Workers'  Compensation Act.   Texarkana Sch.  Dist.  v.  Conner,  373 \nArk. 372, 284 S.W.3d 57 (2008).  Thus, it falls to the court to define these \nterms in a manner that neither broadens nor narrows the scope of the Act.  \nId. \n \nAn employee is performing employment services when he or she is doing \nsomething  that  is  generally  required  by  his  or  her  employer.   Id.; Pifer  v. \nSingle  Source  Transp.,  347  Ark.  851,  69  S.W.3d  1  (2002).    We  use  the \nsame  test  to  determine  whether  an  employee  is  performing  employment \nservices as we do when determining whether an employee is acting within \n\nPARKER H101899 \n \n9 \n \nthe course and scope of employment.  Jivan v. Econ. Inn & Suites, 370 Ark. \n414, 260 S.W.3d 281 (2007).  The test is whether the injury occurred within \nthe time and space boundaries of the employment, when the employee was \ncarrying out the employer's purpose or advancing the employer's interest, \ndirectly or indirectly.  Id.  In Conner, 373 Ark. 372, 284 S.W.3d 57, we stated \nthat where it was clear that the injury occurred outside the time and space \nboundaries of employment, the critical inquiry is whether the interests of the \nemployer were being directly or indirectly advanced by the employee at the \ntime  of  the  injury.    Moreover,  the  issue  of  whether  an  employee  was \nperforming employment services within the course of employment depends \non the particular facts and circumstances of each case.  Id. \n \n If  the  claimant  fails  to  establish  by  a  preponderance  of  the  evidence  any  of  the \nrequirements  for  establishing  compensability,  compensation  must  be  denied.   Mikel  v. \nEngineered Specialty Plastics, 56 Ark. App. 126, 938 S.W.2d 876 (1997).  This standard \nmeans the evidence having greater weight or convincing force.  Barre v. Hoffman, 2009 \nArk. 373, 326 S.W.3d 415; Smith v. Magnet Cove Barium Corp., 212 Ark. 491, 206 S.W.2d \n442 (1947). \n The Claimant has not satisfied her burden with any credible objective findings as \nto her alleged work-related injuries to her knees. Thus, I find by the preponderance of the \nevidence that Claimant did not meet her burden of compensability for her knee(s) and this \nclaim must be denied. Since this is my finding there is no need to explore whether the \nClaimant submitted timely notice to her employer.  \nATTORNEY FEES \nOne of the purposes of the attorney's fee statute is to put the economic burden of \nlitigation on the party who makes litigation necessary.  Brass v. Weller, 23 Ark. App. 193, \n745 S.W.2d 647 (1998).  Under Ark. Code Ann. § 11-9-715 (Repl. 2012): \n(B) Attorney’s fees shall be twenty-five percent (25%) of compensation for \nindemnity  benefits  payable  to  the  injured  employee  or  dependents  of  a \ndeceased employee . . . In all other cases whenever the commission finds \nthat a claim has been controverted, in whole or in part, the commission shall \n\nPARKER H101899 \n \n10 \n \ndirect that fees for legal services be paid to the attorney for the claimant as \nfollows:  One-half (½) by the employer or carrier in addition to compensation \nawarded;  and  one-half  (½)  by  the  injured  employee  or  dependents  of  a \ndeceased employee out of compensation payable to them. \n \n Discussion.    The  evidence  before  me  clearly  shows  that  Respondents  have \ncontroverted Claimant’s entitlement to additional indemnity benefits.  Thus, the evidence \npreponderates that her counsel, the Hon. Sheila F. Campbell, is entitled to the fee as set \nout above. \nCONCLUSION \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 in \na lump sum without discount, and this award shall earn interest at the legal rate until paid, \npursuant to Ark. Code Ann. § 11-9-809 (Repl. 2012).  See Couch v. First State Bank of \nNewport, 49 Ark. App. 102, 898 S.W.2d 57 (1995). \n IT IS SO ORDERED. \n       ________________________________ \n       Hon. Steven Porch \n                                                                           Administrative Law Judge","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H101899 FELICIA PARKER, EMPLOYEE CLAIMANT UNIVERSITY OF ARKANSAS FOR MEDICAL SCIENCES, SELF-INSURED EMPLOYER RESPONDENT PUBLIC EMPLOYEE CLAIMS DIVISION, CARRIER/TPA RESPONDENT OPINION FILED JULY 19, 2023 Hearing before Administrative Law Judge Steven Porch on...","fetched_at":"2026-05-19T23:05:31.284Z","links":{"html":"/opinions/alj-H204774-2023-07-19","pdf":"https://labor.arkansas.gov/wp-content/uploads/Parker_Felicia_H101899_20230719.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}