{"id":"alj-H204851-2024-05-15","awcc_number":"H204851","decision_date":"2024-05-15","opinion_type":"alj","claimant_name":"Janet Foster","employer_name":null,"title":"FOSTER VS. GOODWILL INDUSTRIES OF ARAWCC# H204851May 15, 2024","outcome":"granted","outcome_keywords":["granted:6"],"injury_keywords":["hernia","back"],"pdf_url":"https://www.labor.arkansas.gov/wp-content/uploads/FOSTER_JANET_H204851_20240515.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"FOSTER_JANET_H204851_20240515.pdf","text_length":16750,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO.  H204851 \n \nJANET FOSTER, Employee                                                                           CLAIMANT \n \nGOODWILL INDUSTRIES OF AR, Employer                                          RESPONDENT \n \nATA WORKERS’ COMP SI TRUST/RISK MGT., Carrier/TPA                 RESPONDENT                                                                                           \n \n \n OPINION FILED MAY 15, 2024 \n \nHearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Fort \nSmith, Sebastian County, Arkansas. \n \nClaimant represented by EDDIE H. WALKER, JR., Attorney, Fort Smith, Arkansas. \n \nRespondents represented by MELISSA WOOD, Attorney, Little Rock, Arkansas. \n \n \n STATEMENT OF THE CASE \n  \n On April 22, 2024, the above captioned claim came on for hearing at Fort Smith, \nArkansas.    A  pre-hearing  conference  was  conducted  on November  8,  2023 and  an \namended pre-hearing order was filed on February 23, 2024.  A copy of the pre-hearing \norder has been marked as Commission’s Exhibit #1 and made a part of the record without \nobjection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1.   The Arkansas Workers’ Compensation Commission has jurisdiction of the \nwithin claim. \n 2.   Claimant sustained a compensable hernia on June 6, 2022. \n 3.   Claimant was earning an average weekly wage of $717.88 which would entitle \nher  to  compensation  at  the  weekly  rates  of  $479.00  for  total  disability  benefits  and \n\nFoster – H204851 \n \n2 \n \n$359.00 for permanent partial disability benefits. \n At the pre-hearing conference the parties agreed to litigate the following issues: \n1.   Temporary total disability benefits from December 19, 2022 through a date  \nyet to be determined. \n2.   Claimant’s entitlement to additional medical treatment. \n3. Claimant’s entitlement to a weight loss program. \n4. Attorney’s fee. \nAt the time of the hearing the claimant clarified that her request for temporary total \ndisability  benefits  would  end  as  of  March  31,  2023.    Claimant  also  acknowledged  that \nrespondent paid some temporary total disability benefits and would be entitled to a credit \nfor those benefits. \nThe  claimant  contends  she  is  entitled  to  temporary  total  disability  benefits  from \nDecember 19, 2022 until March 31, 2023.  The claimant contends that she is entitled to \nadditional  medical  treatment  since  the  December  19,  2022  surgery  was  done  without \nmesh  and  was  only  temporary  treatment  for  her  compensable  injury.    The  claimant \ncontends she is entitled to a weight loss program to be paid for by the respondents since \nher treating surgeon has recommended that she needs to lose weight before the mesh \ncan be  utilized regarding the surgical repair of the hernia.  The claimant contends that \nshe  has  made  a  good  faith  effort  to  lose  weight  and  unfortunately  has  been  unable  to \naccomplish the objective of losing enough weight to make her a suitable candidate for the \npermanent repair of her compensable hernia.  Claimant contends her attorney is entitled \nto an appropriate attorney’s fee. \nThe respondents contend that all appropriate benefits are being paid with regard \n\nFoster – H204851 \n \n3 \n \nto claimant’s compensable hernia sustained on June 6, 2022.  Temporary total disability \nbenefits were paid after Dr. Shamim’s surgery performed on December 19, 2022 until \nclaimant’s release in January of 2023.  The medical records do not support entitlement to \ntemporary  total  disability  benefits  after  that  timeframe.    Respondents  contend  that  the \nrequested weight loss program is not reasonable and necessary and that claimant’s need \nfor weight loss is preexisting.  Furthermore, it is premature to award a surgery with mesh \nwithout claimant first losing the requisite weight. \n From a review of the record as a whole, to include medical reports, documents, \nand other matters properly before the Commission, and having had an opportunity to hear \nthe testimony of the witness and to observe her demeanor, the following findings of fact \nand conclusions of law are made in accordance with A.C.A. §11-9-704: \n \n  FINDINGS OF FACT & CONCLUSIONS OF LAW \n \n 1.   The stipulations agreed to by the parties at a pre-hearing conference conducted \non November 8, 2023, and contained in an amended pre-hearing order filed February 23, \n2024, are hereby accepted as fact. \n 2.    Claimant has met her burden of proving by a preponderance of the evidence \nthat she is entitled to additional medical treatment from Dr. Shamim.   \n 3.   Claimant has met her burden of proving by a preponderance of the evidence \nthat the proposed weight loss program at Metabolic Research Center is reasonable and \nnecessary medical treatment for her compensable injury. \n 4.   Claimant has met her burden of proving by a preponderance of the evidence \nthat she is entitled to temporary total disability benefits from December 19, 2022 \n\nFoster – H204851 \n \n4 \n \nthrough January 6, 2023.  Respondent is entitled to a credit for any temporary total \ndisability benefits previously paid. \n 5.   Claimant’s attorney is entitled to the maximum controverted attorney fee on \nany indemnity benefits which were unpaid. \n \n FACTUAL BACKGROUND \n The claimant was employed by the respondent as a career specialist.  Claimant’s \njob  duties  required  her  to  help  people  find  work  by  helping  them  with  their  resume; \nteaching  them  how  to dress  for  an interview;  and how  to  act during  an  interview.   She \nalso  performed  other  duties  such  as  putting  out  clothing  and  removing  old  clothing.  \nClaimant was also responsible for keeping a community room clean, swept, and mopped. \n On June 6, 2022, claimant was in the process of pulling on a table in the community \nroom to move it when she suffered a compensable hernia.   \n Claimant came under the care of Dr. Shamim, who in a report dated November 15, \n2022, noted that claimant had gained some weight since the last time he saw her.  He \nalso noted that claimant was having significant discomfort at the hernia site.  Dr. Shamim \nwent on to state: \n  Patient unfortunately has gained weight and is currently \n  not optimized for hernia repair.  However she is a very \n  symptomatic and my fear is that the patient is [going to] \n  have strangulation of the hernia.  As such I advised the \n  patient that we should most likely go ahead with that \n  hernia repair at this point in time without a mesh which \n  would at least buy a some time for her to lose weight in \n  the future and perform a standard of care hernia repair \n  with mesh at that time.  Patient voices understanding. \n  She does understand that this point in time with hernia \n  repair is just to ensure that she does not have any \n  complications, it is understood that the hernia will \n\nFoster – H204851 \n \n5 \n \n  eventually return especially if she stays at her current \n  weight.  Patient voices understanding.  At this point in \n  time we will post the patient for a hernia repair without \n  mesh. \n \n \n Dr.  Shamim  performed  the  hernia  repair  surgery  on  December  19,  2022 and \nclaimant returned to Dr. Shamim on January 6, 2023, for a follow-up examination.  In his \nreport of that date, Dr. Shamim noted that claimant was doing great with no active issues \nand that she felt essentially normal.  He also noted that claimant needed to proceed with \nweight loss in order to prevent a further occurrence and that if she did not lose weight she \nwould likely have another recurrence in the future. \n Claimant has filed this claim contending that she is entitled to additional medical \ntreatment for her compensable hernia injury.  She also contends that she is entitled to a \nweight loss program and temporary total disability benefits beginning December 19, 2022 \nand continuing through March 31, 2023.   \n \nADJUDICATION \n Claimant  contends  that  she  is  entitled  to  additional  medical  treatment  for  her \ncompensable hernia injury.  Claimant has the burden of proving by a preponderance of \nthe  evidence  that  she  is  entitled  to  additional  medical  treatment  for  her  compensable \nhernia injury.  Dalton v. Allen Engineering Co., 66 Ark. App. 201, 989 S.W. 2d 543 (1999).    \nI find that claimant has met her burden of proof.  As previously noted, Dr. Shamim \nin his report of November 15, 2022, noted that claimant was not optimized for a hernia \nrepair due to her weight.  However, he stated that claimant was very symptomatic and \nbelieved  that  claimant  was  going  to  have  a  strangulation  of  her  hernia;  therefore,  he \n\nFoster – H204851 \n \n6 \n \nrecommended that claimant undergo a hernia repair without mesh which would allow her \nsome  time  to  lose  weight  and  then  undergo  a  hernia  repair  with  mesh.    Dr.  Shamim \nperformed the hernia repair surgery without mesh on December 19, 2022.   \nIn  his follow-up report dated January 6, 2023,  Dr. Shamim noted that claimant \nneeded to proceed with weight loss in order to prevent a recurrence of her hernia.  He \nalso  indicated  that  she  should  follow  up  as  needed  and  that  she  had  been  counseled \nregarding alarm signs and her need to call back.  It is clear from a review of Dr. Shamim’s \nmedical records that he believed claimant would need additional medical treatment in the \nform of hernia repair with mesh when she had lost weight.  \nI find based upon this evidence that claimant has met her burden of proving by a \npreponderance of the evidence that she is entitled to continued medical treatment from \nDr. Shamim for her compensable hernia.   \nI also find that claimant has met her burden of proving by a preponderance of the \nevidence  that  she  is  entitled  to  a  weight  loss  program  at  Metabolic  Research  Center.  \nPursuant  to  A.C.A.  §11-9-508(a),  an  employer  is  required  to  provide  for  an  injured \nemployee such medical services as may be reasonably necessary in connection with the \ninjury  received.    What  constitutes  reasonable  and  necessary  medical  treatment  is  a \nquestion of fact for the Commission.  Shiloh Nursing & Rehab, LLC, v. Lawson, 214 Ark. \nApp. 433, at 3, 439 S.W. 3d 696, 698.  Weight loss treatment has been recognized as a \nmedical benefit which may be awarded if it is determined to be reasonable and necessary \nmedical  treatment  for a  compensable  injury.   Lybyer  v. Springdale  School  District,  219 \nArk. App. 77, 568 S.W. 3d 805.   \n Here, I find that claimant has met her burden of proving by a preponderance \n\nFoster – H204851 \n \n7 \n \nof the evidence that the proposed weight loss program is reasonable and necessary.  As \npreviously noted, Dr. Shamim in his report of November 15, 2022, indicated that claimant \nwas not currently optimized for her hernia repair surgery due to her weight.  However, Dr. \nShamim performed a hernia repair surgery without mesh due to the claimant’s symptoms \nand a fear of strangulation of the hernia.  In his report of January 6, 2023, Dr. Shamim \nindicated that claimant was in danger of a recurrence unless she lost weight.   \nOn  January  9,  2024,  claimant  was  evaluated  by her primary  care  physician,  Dr. \nLance Barton.  In his report of that date, Dr. Barton stated: \n  \nThis is to certify that Janet Foster has a BMI of 48.56 \n and has not been successful in many exercise programs \n and weight loss diets she has tried in the past.  She \n would benefit in the enrollment of Metabolic Research \n Center program for weight loss. \n \n \nBased upon the foregoing, I find that claimant has met her burden of proving by a \npreponderance of the evidence that the weight loss program is reasonable and necessary \nmedical treatment for her compensable hernia injury. \nThe last issue for consideration involves claimant’s request for temporary total \ndisability  benefits  from  December  19,  2022  through  March  31,  2023.    In  order  to  be \nentitled  to  temporary  total  disability  benefits,  claimant  has  the  burden  of  proving  by  a \npreponderance of the evidence that she remains within her healing period and that she \nsuffers a total incapacity to earn wages.  Arkansas State Highway & Transportation Dept. \nv. Breshears, 272 Ark. 244, 613 S.W. 2d 392 (1981).    \n After reviewing the evidence in this case, I find that claimant remained within her \nhealing period and that she suffered a total incapacity to earn wages from December 19, \n\nFoster – H204851 \n \n8 \n \n2022 through January 6, 2023.   \n First,  I  find  that  claimant  has  remained  within  her  healing  period  for  her \ncompensable  hernia  since  the  date  of  the  injury  on  June  6,  2022.    However,  after \nclaimant’s compensable injury she continued working for the respondent until December \n19,  2022,  when she underwent the surgery by Dr. Shammim.  Accordingly, claimant’s \ntotal  incapacity  to  earn  wages  began  on  December  19,  2022.    I  find  that  her  total \nincapacity to earn wages continued until January 6, 2023.  On January 6, 2023, claimant \nhad her follow-up appointment with Dr. Shamim who noted that she was doing great with \nno active issues and that she essentially felt normal.  Dr. Shamim placed limitations on \nthe claimant of a lifting restriction of 10 pounds for twelve weeks and 30 pounds thereafter.  \nDr. Shamim also placed these same restrictions in a “To Whom It May Concern” letter \nalso  dated  January  6,  2023.    While  claimant  testified  that  she  did  not  work  during  this \ntwelve week period of time and did not feel that she was physically capable of working \nduring that twelve week period of time, I note that on January 16, 2023, claimant applied \nfor unemployment compensation benefits.  In doing so, claimant indicated that she could \nbegin  work  immediately;  that  she  could  work  full  time;  and  that  she  did  not  have  any \ndisabilities that limited her ability to perform her normal job duties.  \n With  respect  to  this  issue,  it  should  be  noted  that  claimant  has  job  skills  which \nwould allow her to work at a sedentary type job.  As previously noted, claimant worked \nfor the respondent as a career specialist which included duties of helping individuals with \nresumes and teaching them how to dress and act during work interviews.  Furthermore, \nat the time of her deposition on January 9, 2024, claimant indicated she had been working \nfor a company at home since October 2023.  Claimant was working 40 hours per week, \n\nFoster – H204851 \n \n9 \n \nmaking $17.00 per hour performing a sit down job at her computer.  Thus, claimant clearly \nhad job skills which would allow her to work at a sedentary type job. \n Accordingly, I find that claimant’s total incapacity to earn wages ended as of \nJanuary 6, 2023, the date she was seen by Dr. Shamim.  Therefore, claimant is entitled \nto temporary total disability benefits from December 19, 2022 through January 6, 2023.  \nRespondent  is  entitled  to  a  credit  for  any  benefits  previously  paid during  this  period  of \ntime.  Claimant’s attorney is entitled to the maximum attorney fee on any unpaid indemnity \nbenefits during this period of time.   \n \nAWARD \n Claimant has met her burden of proving by a preponderance of the evidence that \nshe  is  entitled  to  additional  medical  treatment  from  Dr.  Shamim  for  her  compensable \nhernia injury.  Claimant has also proven by a preponderance of the evidence that she is \nentitled  to  additional  treatment  in  the  form  of  a  weight  loss  program  at  the  Metabolic \nResearch  Center.    Claimant  is  entitled  to  temporary  total  disability  benefits  from \nDecember 19, 2023, and continuing through January 6, 2023.  Respondent is entitled to \na credit for any temporary total disability benefits previously paid. \nPursuant to A.C.A. §11-9-715(a)(1)(B), claimant’s attorney is entitled to an attorney \nfee  in  the  amount  of  25%  of  the  compensation  for  indemnity  benefits  payable  to  the \nclaimant.   Thus, claimant’s attorney is entitled to a 25% attorney fee based upon the \nindemnity benefits awarded.   This fee is to be paid one-half by the carrier and one-half \nby  the  claimant.      Also  pursuant  to  A.C.A.  §11-9-715(a)(1)(B),  an  attorney  fee  is  not \nawarded on medical benefits. \n\nFoster – H204851 \n \n10 \n \n Respondents are liable for payment of the court reporter’s charges for preparation \nof the hearing transcript in the amount of $355.75. \n All sums herein accrued are payable in a lump sum and without discount. \n IT IS SO ORDERED. \n \n      _____________________________________ \n       GREGORY K. STEWART \n       ADMINISTRATIVE LAW JUDGE","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H204851 JANET FOSTER, Employee CLAIMANT GOODWILL INDUSTRIES OF AR, Employer RESPONDENT ATA WORKERS’ COMP SI TRUST/RISK MGT., Carrier/TPA RESPONDENT OPINION FILED MAY 15, 2024 Hearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Fort Smith, Sebastia...","fetched_at":"2026-05-19T22:54:18.430Z","links":{"html":"/opinions/alj-H204851-2024-05-15","pdf":"https://www.labor.arkansas.gov/wp-content/uploads/FOSTER_JANET_H204851_20240515.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}