{"id":"alj-H205069-2023-10-11","awcc_number":"H205069","decision_date":"2023-10-11","opinion_type":"alj","claimant_name":"Erica Bearfield","employer_name":"Rock Region Metro","title":"BEARFIELD VS. ROCK REGION METRO AWCC# H205069 & H304225 OCTOBER 11, 2023","outcome":"granted","outcome_keywords":["granted:5"],"injury_keywords":["shoulder","repetitive"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads//Bearfield_Erica_H205069_H304225_20231011.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Bearfield_Erica_H205069_H304225_20231011.pdf","text_length":18597,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H205069 & H304225 \n \nERICA BEARFIELD, EMPLOYEE CLAIMANT \n \nROCK REGION METRO, \nEMPLOYER RESPONDENT \n \nATA WC TRUST,  \nCARRIER/TPA                       RESPONDENT \n \nOPINION FILED OCTOBER 11, 2023 \n \nHearing before Administrative Law Judge Steven Porch on September 28, 2023, in Little \nRock, Arkansas. \n \nClaimant  represented  by  Mr.  Steven  R.  McNeely,  Attorney  at  Law,  Jacksonville, \nArkansas. \n \nRespondents  were  represented  by  Ms.  Melissa  Wood,  Attorney  at  Law,  Little  Rock, \nArkansas. \n \nSTATEMENT OF THE CASE \n \n A full  hearing  was  held  on  this  claim  on  September 28,  2023.    Claimant  was \nrepresented  by  Mr.  Steven  R.  McNeely,  Attorney  at  Law,  Jacksonville,  Arkansas; \nRespondents  were  represented  by  Ms.  Melissa  Wood,  Attorney  at  Law,  Little  Rock, \nArkansas. \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 the within claim. \n \n2. An employer/employee relationship existed on 9/3/21 when Claimant \nalleges to have sustained a compensable injury to her right shoulder \nand   on   3/15/2022   when   Claimant   allegedly   sustained   and \naggravation to her right shoulder. \n \n3. Respondents  initially  accepted  the  claim  as  medical  only  and  paid \nsome benefits. Respondents now deny claims in their entirety. \n\nBEARFIELD H205069 & H304225 \n \n2 \n \n \n 4.  The parties  will  stipulate  to  Claimant’s  average  weekly  wage  and \ncompensation rates on or before the hearing date. \n \nISSUES \n The parties have identified the following issues to be adjudicated: \n1.  Whether  Claimant  sustained  a  compensable  injury  to  her  right  shoulder  on \n9/3/2021. \n \n2.  Are there objective findings of an acute injury on 9/3/2021. \n \n3.  Whether Claimant is entitled to reasonable medical and indemnity benefits from \nthe date onset to a yet undetermined date. \n \n4.  Whether  Claimant  sustained  a  compensable  injury  to  her  right  shoulder  on \n3/15/2022. \n \n5.  Are there objective findings of an acute injury on 3/15/2022. \n \n6.  Whether Claimant is entitled to reasonable and necessary medical treatment, \nincluding two surgeries performed by Dr. Lawrence O’Malley, including out of \npocket expense, mileage and reimbursement for private health insurance. \n \n7.  Whether Claimant is entitled to Temporary Total Disability (TTD) following her \n3/15/2022 injury for approximately 8 months, specific dates to be provided. \n \n8.  Attorney’s fees.  \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 \n\nBEARFIELD H205069 & H304225 \n \n3 \n \nthis  record  and  other  matters  properly  before  the  Commission,  and  having  had  an \nopportunity to hear the testimony of the Claimant, Erica Bearfield, the sole witness in this \nclaim,  and  observe  her  demeanor,  I  hereby  make  the  following  findings  of  fact  and \nconclusions of law in accordance with Ark. Code Ann. § 11-9-704 (Repl. 2012): \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  has  proven  by  the  preponderance  of  the  evidence  that  she \nsustained  a  compensable  injury  to  her  right  shoulder  during  the  course  and \nscope  of  employment  on  March  15,  2022.  The  Claimant  did  not  prove  a \ncompensable rapid and repetitive injury to her right shoulder on September 3, \n2021. \n4.   The  Claimant  is  entitled  to  reasonable  and  necessary  medical  treatment, \nincluding two surgeries performed by Dr. Lawrence O’Malley, including out of \npocket expense, mileage and reimbursement for private health insurance. \n5.   Claimant is entitled to TTD following her March 15, 2022, injury. \n6.  Claimant has proven by the preponderance of the evidence that her attorney is \nentitled 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 have admitted into evidence Claimant’s and Respondent’s \nexhibits  that  were  properly  admitted  before  the  Commission.  Claimant  suffered  a \n\nBEARFIELD H205069 & H304225 \n \n4 \n \ncompensable injury to her right shoulder during the course and scope of her employment \nwith  Respondent.  Claimant  is  a 48-year-old  city  bus  driver.  Claimant  has  worked  for \nRespondent as a city bus driver for over 17 years. September 3, 2021, during the Covid \npandemic,  was  the  first  time  the  Claimant  felt  pain  in  her  right  shoulder.  Respondent \nplaced sneeze shields on the buses to protect their employees. The shield separated the \npassengers  from  the  driver.  When  passengers  boarded  the  front  of  the bus  where  the \ndriver  sat,  the driver  manually  opened  the shield  to  a position  that  would  separate  her \nfrom the passengers boarding the bus. This maneuver also allowed the passengers to \nfind a seat on the bus. When all passengers were on the bus and behind the yellow safety \nline,  the  driver  would  then  close  the  shield  separating  her  again  from  the rest  of  the \npassengers.  \nThe Claimant’s job involved working an 8-hour shift. Claimant, within one hour of \nwork, opens and closes the shield 30 to 35 times, lowers the bus 30 to 35 times, process \npasses 20 to 35 times, accept money in a slot 10 to 15 times. All these activities involve \nthe extension and retraction of Claimant’s right shoulder. Claimant testified that she uses \nher  right  arm  and  shoulder  90%  of  the  time  while  on  the  job.  The  shoulder  pain  on \nSeptember 3, 2021, was accepted by Respondent as medical-only. Claimant received a \nsteroid  shot  to  her  right  shoulder.  However, Claimant’s  attorney  has  acknowledged, \nduring  the  hearing,  that  there  were  no  objective  findings  for  the  alleged  September  3, \n2021, right shoulder injury.  \nHowever, regarding the March 15, 2022, injury, according to Claimant’s testimony, \nwhile working an 8-hour shift, continuing to do all of the same things as mentioned above, \nClaimant’s shoulder popped while opening the shield on her bus. That same day while \n\nBEARFIELD H205069 & H304225 \n \n5 \n \nsecuring a wheelchair her shoulder was hurting “real bad”. This pain was worse than the \nSeptember 3, 2021, pain. Claimant went home and woke up the next day and was unable \nto  raise  her  right  arm  above  her  head  to  put  on  her  shirt.  Claimant  made  Respondent \naware that she could not go to work due to her injury. Claimant testified that there were \nno intervening activities, outside of work, that would have contributed to the pop of her \nright shoulder. Claimant’s right shoulder was operated upon by Dr. Lawrence O’Malley \nwho repaired tears in the right shoulder. Since Claimant’s attorney admitted to the lack of \nobjective findings for the September 3, 2021, alleged injury, the focus of this opinion will \nbe on the March 15, 2022, alleged injury.  \nAdjudication \nA.  Whether Claimant is entitled to reasonable and necessary medical treatment, \nincluding two surgeries performed by Dr. Lawrence O’Malley, including out of \npocket expense, mileage and reimbursement for private health insurance. \n \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(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 \n\nBEARFIELD H205069 & H304225 \n \n6 \n \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 \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 \n\nBEARFIELD H205069 & H304225 \n \n7 \n \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 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.  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. \nThe  Claimant  has  satisfied  her  burden  with  objective  findings  as  to her  work-\nrelated  right  shoulder  injury.  The  Claimant  acknowledged  she  heard  a  pop  in  her  right \nshoulder and felt greater pain while securing a wheelchair on the bus than she did with \nthe  September  3,  2021,  alleged  injury  to  the  same  shoulder. I  find  the  Claimant’s \ntestimony   credible.   These   things   occurred   during   the   course   and   scope   of   her \nemployment.  The  Claimant  sustained  right  shoulder  biceps  tearing  per  Dr. Lawrence \nO’Malley. I credit Dr. O’Malley’s medical opinion since he has seen the tears and repaired \nthem.  Thus,  I  find  by  the  preponderance  of  the  evidence  that  Claimant  did  meet  her \nburden and her right shoulder claim is granted as to the March 15, 2022, injury. However, \ndoes this entitle Claimant to reasonable and necessary medical treatment? \n \n \n\nBEARFIELD H205069 & H304225 \n \n8 \n \nB.  Whether Claimant is entitled to reasonable and necessary medical treatment, \nincluding two surgeries performed by Dr. Lawrence O’Malley, including out of \npocket expense, mileage and reimbursement for private health insurance. \n \nArkansas  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 \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\nBEARFIELD H205069 & H304225 \n \n9 \n \nClaimant needed surgery to repair the tears in her right shoulder. Otherwise, she \nwould  not  be  able  to  get  her  hand  and  arm  above  her  shoulder.  Thus,  I  find  by  the \npreponderance  of  the  evidence  that  Claimant  is  entitled  to  reasonable  and  necessary \nmedical  treatment,  including  the  two  surgeries  performed  by  Dr. Lawrence  O’Malley, \npocket expenses, mileage, and reimbursement of private health insurance. I also find that \nRespondents are entitled to an offset consistent with Arkansas law. \nThe final issue involves whether Claimant is entitled to Temporary Total Disability \nbenefits.  Temporary  Total  Disability  for  unscheduled  injuries  is  that  period  within  the \nhealing  period  in  which  the  Claimant  suffers  total  incapacity  to  earn  wages. Ark.  State \nHighway and Transportation Dept. v. Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981). \nThe healing period ends when the underlying condition causing the disability has become \nstable and nothing further in the way of treatment will improve that condition. Mad Butcher, \nInc.  v.  Parker,  4  Ark.  App.  124,  628  S.W.2d  582  (1982).  Claimant  has  missed  large \namounts  of  work  due to  her  injury.  Thus, I  find  by the preponderance  of  evidence that \nClaimant is entitled to temporary total disability following her March 15, 2022, injury to a \ndate to be determined when she is stable or has reached maximum medical recovery. \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 \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 \n\nBEARFIELD H205069 & H304225 \n \n10 \n \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. Steven McNeely, is entitled to the fee as set out \nabove. \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, minus any lawful \noffsets, shall be paid in a lump sum without discount, and this award shall earn interest \nat  the  legal  rate  until  paid,  pursuant  to  Ark.  Code  Ann.  §  11-9-809  (Repl.  2002).   See \nCouch v. First State Bank of Newport, 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. H205069 & H304225 ERICA BEARFIELD, EMPLOYEE CLAIMANT ROCK REGION METRO, EMPLOYER RESPONDENT ATA WC TRUST, CARRIER/TPA RESPONDENT OPINION FILED OCTOBER 11, 2023 Hearing before Administrative Law Judge Steven Porch on September 28, 2023, in Little Rock, Arkansa...","fetched_at":"2026-05-19T23:01:30.464Z","links":{"html":"/opinions/alj-H205069-2023-10-11","pdf":"https://labor.arkansas.gov/wp-content/uploads//Bearfield_Erica_H205069_H304225_20231011.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}