{"id":"alj-H205408-2023-09-06","awcc_number":"H205408","decision_date":"2023-09-06","opinion_type":"alj","claimant_name":"Dominic Russell","employer_name":"Simmons Prepared Foods, Inc","title":"RUSSELL VS. SIMMONS PREPARED FOODS, INC. AWCC# H205408 SEPTEMBER 6, 2023","outcome":"denied","outcome_keywords":["dismissed:1","denied:4"],"injury_keywords":["back","lumbar","sprain","shoulder"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/RUSSELL_DOMINIC_H205408_20230906.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"RUSSELL_DOMINIC_H205408_20230906.pdf","text_length":21027,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO. H205408 \n \nDOMINIC T. RUSSELL, Employee                                                                 CLAIMANT \n \nSIMMONS PREPARED FOODS, INC., Employer                                    RESPONDENT                        \n \nSEDGWICK CLAIMS MANAGEMENT, Carrier                                        RESPONDENT                        \n \n \n \n OPINION FILED SEPTEMBER 6, 2023 \n \nHearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Springdale, \nWashington County, Arkansas. \n \nClaimant represented by EVELYN E. BROOKS, Attorney, Fayetteville, Arkansas. \n \nRespondents represented by R. SCOTT ZUERKER, Attorney, Fort Smith, Arkansas. \n \n \n STATEMENT OF THE CASE \n  \n On August 16, 2023, the above captioned claim came on for hearing at Springdale, \nArkansas.  A pre-hearing conference was conducted on June 21, 2023 and a pre-hearing \norder was filed on that same date.  A copy of the pre-hearing order has been marked as \nCommission’s Exhibit #1 and made a part of the record without objection. \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.      The employee/employer/carrier  relationship  existed among  the  parties at all \nrelevant times. \n 3.   The claimant was earning an average weekly wage of $495.52 which would \nentitle him to compensation at the weekly rates of $331.00 for total disability benefits and \n\nRussell – H205408 \n2 \n \n$248.00 for permanent partial disability benefits. \n 4.   Respondents have controverted this claim in its entirety. \n At the pre-hearing conference the parties agreed to litigate the following issues: \n1.    Compensability of injury to claimant’s low back on December 27, 2021. \n2.    Medical. \n3.    Temporary total disability benefits. \n4.     Attorney fee. \nAt the time of the hearing claimant clarified that temporary total disability benefits \nare being requested from November 14, 2022 through a date yet to be determined. \n The  claimant  contends  he  suffered  a  compensable  injury  to  his  low  back on \nDecember  27,  2021.    He  contends  he  is  entitled  to  additional  medical  treatment  as \nrecommended by Dr. Blankenship.  He contends he is entitled to temporary total disability \nbenefits  from  the  date  last  paid  to  a  date  yet  to  be  determined.    Claimant  reserves  all \nother issues. \n The respondents contend that claimant did not suffer a compensable injury to his \nlow back. \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 his 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 \n\nRussell – H205408 \n \n3 \n \nconducted on June 21, 2023 and contained in a pre-hearing order filed that same date \nare hereby accepted as fact. \n 2. Claimant has failed to meet his burden of proving by a preponderance of \nthe evidence that he suffered a compensable injury to his low back while working for \nrespondent on December 27, 2021. \n \n FACTUAL BACKGROUND \n Claimant is a 48-year-old man who began working for respondent on its production \nline in November 2021.  One of his job responsibilities was to “catch” boxes of chicken at \nthe end of the production line and place the box on a pallet.  These boxes could weigh \n30,  40,  or  50  pounds,  depending  on  the  customer  for  which  the  line  was  running  at  a \nparticular time.  Claimant testified that he injured his low back while moving these boxes \non December 27, 2021.  At his deposition, he described the accident as follows: \n  Q So in that process,  Dominic, how did you get hurt? \n \n  A On the back of the line, grabbing the box, turning \n  around and dropping it on the pallet stack, seven to seven, \n  seven wide and seven high, and my back - - on one of them \n  I just turned and set it down and my back had popped and I \n  felt a warm sensation.  I straightened back up and I tried to \n  stretch it out and then it was about lunch.  It was pretty much \n  lunch after that point.  And I went out to the car.  I ate lunch. \n  And then my leg started tingling and I went in and seen - - \n  I went straight to medical at that time.  I went to medical. \n \n \n At the hearing, claimant admitted that he did not report his injury to the nurse’s \nstation on the day of the accident, but instead reported it three days later on December \n30, 2021.  After claimant reported the injury he was sent to Dr. Berestnev who diagnosed \nclaimant  with  a  lumbar  sprain;  prescribed  medication;  and  placed  work  restrictions  on \n\nRussell – H205408 \n \n4 \n \nclaimant.  Claimant testified that he returned to work for respondent and that at times he \nwas placed at the end of the line catching boxes again.  He testified that after working a \nfew days his back was hurting so bad he could not get up from his bed.  \n Claimant  missed  his  follow-up  appointment  with  Dr.  Berestnev  on  January  12, \n2022, and testified he was essentially in bed for six months because of pain in his back.  \nClaimant  did  not  seek  any  additional  medical  treatment  for  his  low  back  until  May  26, \n2022,  when  he  was  evaluated  at  the  emergency  room  by  Shawn  Hall,  APRN,  for \ncomplaints  of  back  pain  after  falling  down  a  flight  of  stairs.    Claimant  was  offered \nmedication   but   he   refused   and   was   instructed   to   use   ice   and   over-the-counter \nmedications and to receive follow-up care from his primary care physician.   \n On June 2, 2022, claimant was seen by his primary provider, Sandi Casey, APRN, \nat NeoHealth.  At the time claimant was requesting a referral to a dermatologist for a mole \nremoval and to Dr. Anagnost, an orthopedic specialist, for back pain.  Casey made the \nreferral to Dr. Anagnost and claimant was seen by him on August 15, 2022.  Dr. Anagnost \nnoted claimant’s history of an injury at work, but also indicated that claimant’s low back \npain “has been an issue for several years.”  Dr. Anagnost ordered an MRI scan, x-rays, \nphysical therapy, and activity modification. \n Claimant  underwent  the  MRI  scan  on  September  12,  2022,  which  was  read  as \nfollows: \n  L4-5:  Broad-based disc bulge along with cystic changes \n  creating mild to moderate bilateral neural foramen narrowing, \n  left worse than the right.  The central canal is intact. \n \n  L5-S1:  Central disc protrusion protrusion seen on image \n  18/22.  Mild impression on the anterior thecal sac. \n  Bilateral neural foramens are patent. \n\nRussell – H205408 \n \n5 \n \n \n     *** \n  IMPRESSION: \n \n1.    Small central disc protrusion seen at L5-S1 level \ncreating mild impression of the anterior thecal sac. \nHowever, bilateral neural foramens are patent. \n2.   Mild epidural lipomatosis. \n3.   Early degenerative changes of the disc material \nat the L4-L5 level. \n \n \n Following  the  MRI  scan  claimant  returned  to  Dr.  Anagnost  on  October  3,  2022, \nwho noted that claimant’s prior treatment had not improved his condition and stated that \nsurgery was a possible option.  At this point claimant obtained legal representation and \nrespondent  sent  claimant  back  to  Dr.  Berestnev  on  October  6,  2022.    At  that  visit  Dr. \nBerestnev again diagnosed a sprain and he referred claimant to physical therapy twice a \nweek for three weeks. \n Claimant returned to Dr. Anagnost on November 4, 2022, and he recommended \nan injection and work restrictions.  As of claimant’s next  visit  with  Dr.  Anagnost  on \nNovember 14, 2022, he had not undergone the injection. \n On December 12, 2022, claimant was discharged from physical therapy for non-\ncompliance.  The discharge report indicates that claimant attended two visits with three \ncancelations and one no show. \n On April 10, 2023, claimant was evaluated by Dr. Blankenship who recommended \nmedication,  a  referral  to  Dr.  Cannon  for  a  possible  injection,  and  additional physical \ntherapy before determining whether to proceed with surgery.  Claimant was seen by Dr. \nCannon on May 3, 2023, and he recommended an injection. \n Although respondent paid for medical treatment from Dr. Berestnev, respondent \n\nRussell – H205408 \n \n6 \n \nsubsequently  controverted  this  claim  in  its  entirety.   As  a  result,  claimant  has  filed  this \nclaim contending that he suffered a compensable injury to his low back while working for \nrespondent on December 27, 2021.  He requests payment of medical benefits, temporary \ntotal disability benefits, and an attorney fee. \n \nADJUDICATION \n Claimant  contends  that  he  suffered  a  compensable  injury  to  his  low  back  while \nmoving boxes of chicken for respondent on December 27, 2021.  Claimant’s claim is for \na  specific  incident,  identifiable  by  time  and  place  of  occurrence.    In  order  to  prove  a \ncompensable injury as the result of a specific incident that is identifiable by time and place \nof occurrence, a claimant must establish by a preponderance of the evidence (1) an injury \narising out of and in the course of employment; (2) the injury caused internal or external \nharm to the body which required medical services or resulted in disability or death; (3) \nmedical evidence supported by objective findings establishing an injury; and (4) the injury \nwas caused by a specific incident identifiable by time and place of occurrence.  Odd Jobs \nand More v. Reid, 2011 Ark. App. 450, 384 S.W. 3d 630. \n After reviewing the evidence in this case impartially, without giving the benefit of \nthe doubt to either party, I find that claimant has failed to meet his burden of proof by a \npreponderance of the evidence. \n A  review  of  the  evidence  reveals  a  number  of  inconsistencies  in  claimant’s \ntestimony.  First, claimant testified at his deposition that prior to the incident on December \n27, 2021, he had not had any problems with his back. \n  Q Well, let me ask you this:  Prior to this happening \n\nRussell – H205408 \n \n7 \n \n  in December of ’21, had you ever had any problems with \n  your back? \n \n  A No.  Not - - no. \n \n  Q So prior to December 27\nth\n of ’21, you had not had \n  any back problems? \n \n  A No. \n \n      *** \n  Q And I think I asked you before, prior to December 27\nth\n \n  of 2021, you never had any problems with your back; correct? \n \n  A No. \n \n \n However, the medical records indicate that claimant underwent an MRI scan of the \nlumbar spine on February 10, 2014, which revealed disc protrusions at L4-5 and L5-S1, \nthe  same  levels  for  which  claimant  is  currently  receiving  treatment.    At  the  hearing, \nclaimant  acknowledged  having  been  a  passenger  in  a  car  that  was  rear-ended  in  a \nparking lot in February 2014.  Claimant stated that he did not injure his back at that time, \nbut instead suffered an injury to his shoulder.  It seems unlikely that claimant would have \nundergone a lumbar MRI scan in 2014 if there were no complaints of low back pain and \nthe MRI scan does reflect disc protrusions at L4-5 and L5-S1. \n Second, at his deposition, claimant testified that his injury occurred shortly before \nlunch and that he did not finish his 30 minute lunch but instead went to the nurse’s station \nwhere he reported the injury and was sent for medical treatment. \n  Q So you finished lunch.  Did you have 30 minutes \n  for lunch? \n \n  A Yes.  And, no, I didn’t finish lunch. \n \n  Q Okay.  So before your lunch break was up, you \n\nRussell – H205408 \n \n8 \n \n  went to medical? \n \n  A Yes. \n \n  Q And by medical, do they have a nurse’s station \n  out there? \n \n  A Yes. \n \n  Q Who did you see there? \n \n  A One of the nurses.  I don’t know her name. \n \n  Q What did the nurse do for you? \n \n  A Drug test me.   Then said that they was going to \n  take me up to see their doctor.   \n \n  Q Okay.  And you went to see a doctor at Occupational \n  Health? \n \n  A Yes. \n \n  Q Was it that day? \n \n  A Yes. \n \n  Q Dr. Berestnev? \n \n  A Yes. \n \n \n At the hearing claimant admitted that he did not report the incident on December \n27, 2021.  In fact, claimant did not report an injury to the nurse’s station until three days \nlater on December 30, 2021.   \n I also note that after claimant reported an injury he was sent to Dr. Berestnev who \nplaced work restrictions on claimant.  Claimant testified that after working for a few days \nhis back was hurting so bad he could not get up out of bed and that this condition lasted \nfor six months. \n\nRussell – H205408 \n \n9 \n \n  Q Okay.  Well, you actually told me you couldn’t get \n  out of bed for six months.  Is that accurate? \n \n  A Yes. \n \n  Q Okay. \n  \n  A And I couldn’t get out of bed, but like I said, I had \n  to get up and go to the bathroom.  I had help on a lot of \n  stuff that I had to do.  Now, when I say I am bedridden,  \n  I am sorry.  I don’t know if you misunderstood, but if I \n  physically can’t do it myself, I am bedridden. \n \n  Q Okay.  So up until June,  you were unable to walk  \n  by yourself; correct? \n \n  A Not walk by myself.  I could get to small places, \n  distance. \n \n  Q Like to go to the bathroom? \n \n  A Bathroom.  If I had to go to the kitchen and whatnot, \n  but I also had help. \n \n \n Likewise, claimant at his deposition also testified that he was essentially \nbedridden for six months. \n  Q Did Dr. B schedule a follow-up visit? \n \n  A Yes. \n \n  Q You were supposed to see him in a week? \n \n  A Yes. \n \n  Q Did you ever go to that appointment? \n \n  A No. \n \n  Q Why not? \n \n  A When I went back to work, I was supposed to be \n  on light duty and they kept me on the back of the line \n\nRussell – H205408 \n \n10 \n \n  and when I went home, I could no longer move after I \n  got back home.  I was stuck in bed when I woke up the \n  next day. \n \n  Q So what did you do? \n \n  A Laid in bed in pain and my wife and her mother, \n  my mother-in-law, took care of me. \n \n  Q Okay.  How long did you stay in bed? \n \n  A I was in bed about six months. \n \n      *** \n  Q So, basically, what I am trying to figure out is \n  from January of ’22 until June of ’22, are you telling \n  me you were just at home in bed? \n \n  A I was in bed - - I am trying to think did they - - \n  because my mother-in-law and my wife would try to \n  get me to go to the hospital, but I didn’t have insurance. \n  I don’t have insurance.  I can’t.  They ain’t going to do \n  nothing for me.  Sandi Casey, though, did my referral. \n \n  Q Okay.  And I see that, to Dr. Anagnost? \n \n  A Yes. \n \n  Q So from January of ’22 to June, how were you \n  doing physically? \n \n  A Physically, I mean them parts, I couldn’t move. \n  I could move, but I really couldn’t move.  My legs would \n  go out from underneath me.  I laid in bed. They tried to \n  rotate me from the bed to the chair. That’s pretty much \n  it.  I was just in the house. \n \n  Q Were you able to walk? \n \n  A Depending on how far.  It was - - it depends on  \n  how far.  Like to the bathroom, yes, my wife would help \n  me get there to the bathroom. \n \n  Q So to walk from the bed to the bathroom, you had \n  to have help from  your wife? \n\nRussell – H205408 \n \n11 \n \n \n  A Yes. \n \n  Q For that period of January of ’22 to June of ’22? \n \n  A Let’s see.  Probably right around the end of April \n  to May-ish is when I could go probably by myself because \n  I would lock up on the toilet bowl. \n \n  Q Until April or May? \n \n  A Yes. \n \n  Q And so around April or May, you got to the point \n  where you were able to walk from the bedroom to the \n  bathroom my yourself? \n \n  A About that point I was starting to get around by  \n  myself a little bit. \n \n \n Despite  this  testimony  that  claimant  could  barely  get  out  of  bed  for  six  months \nwithout  help  and  that  he  could  not  get  medical  treatment  because  he did  not  have \ninsurance, the medical records indicate that claimant was seen on January 31, 2022, at \nNeoHealth  Tahlequah  Family  Practice.    The  one-page  report  does  not  mention  why \nclaimant  was  seen  that  day,  but  it  is  significant  because  this  was  during  the  period \nclaimant  testified  that  he  could  not  get  out  of  bed  to  return  to  Dr.  Berestnev  and  was \nunable to obtain medical treatment because he had no insurance.   \n More significantly, claimant was seen by his primary provider, Sandi Casey, APRN, \non  April  18, 2022.    Her  report  indicates that claimant  was  there to have a mole on his \ninner thigh examined.  Despite claimant’s testimony that at this time he could barely move \nfrom  his  bed  to  the  bathroom  without  help,  Casey  in  her  exam  notes under  General \nAppearance noted that claimant was “Well-nourished, well-developed male  in no acute \n\nRussell – H205408 \n \n12 \n \ndistress.”  She also noted under her Musculoskeletal notes:  “Gait is described as normal.”  \nThis report makes no mention of back pain, much less any indication that claimant had \nbeen bedridden for four months. \n As  previously  noted,  claimant  was  evaluated  by  Dr.  Steven  Anagnost,  an \northopedic specialist, on August 15, 2022.  Dr. Anagnost’s medical record does not \nspecifically state that claimant injured himself while working for respondent, but instead \nmerely states:  “He was in Simmons chicken plant in Gentry, Arkansas.”  Significantly, Dr. \nAnagnost’s medical report also contains the following notation: \n  He presents with a chief complaint of low back pain, \n  which has been an issue for several years.  (Emphasis \n  added.) \n \n \n Dr. Anagnost’s medical report also goes on to indicate that claimant had not been \nseen in the emergency room within the last year when in reality the claimant had been \nseen in the emergency room on May 26, 2022, about two and a half months earlier after \nfalling down a flight of stairs.   \n On April 10, 2023, claimant was evaluated by Dr. Blankenship.  Dr. Blankenship’s \nmedical report indicates that claimant gave a history of no prior back problems.  Again, \nthis  is  contradicted  by  the  2014  lumbar  MRI  scan  as  well  as  the  history  noted  in  Dr. \nAnagnost’s medical records. \n Finally, I note that fourteen days after claimant was evaluated by Dr. Blankenship, \nclaimant went to the emergency room and was placed in observation/evaluated for chest \npains which began while he was building hog pens. \n In short, claimant has the burden of proving by a preponderance of the evidence \n\nRussell – H205408 \n \n13 \n \nthat he suffered a compensable injury to his low back while working for respondent on \nDecember 27, 2021.  In this case, a finding that claimant suffered a compensable injury \non that date is dependent in large part upon the claimant’s credibility as a witness that the \ninjury occurred as he testified.  For reasons previously set forth, there are a number of \ninconsistencies present in this case.  Claimant denied prior back problems; however, he \nunderwent a lumbar MRI scan in 2014 which revealed disc protrusions at L4-5 and L5-\nS1, the same levels for which he is currently receiving medical treatment.  In addition, in \nDr. Anagnost’s history he notes that claimant had had an issue of complaints of low back \npain for several years.   Claimant testified at his deposition that he reported his injury on \nthe same day it occurred to a nurse in respondent’s nurse’s station.  In fact, claimant did \nnot  report  a  work-related  injury  until  three  days  later.    Claimant  testified  that  he  was \nessentially  bedridden  for  almost  six  months  beginning  in  January  2022.  According  to \nclaimant  he  could  barely  get  up  from  bed  without  help  to  even  go  to  the  bathroom.  \nHowever, claimant was seen by his own primary provider, Sandi Casey, on April 18, 2021, \nand her report makes no mention of back pain.  Her report does not indicate that claimant \nhad been bedridden for four months, but instead indicates that claimant was in no acute \ndistress and she described his gait as normal.   \n Based upon these inconsistencies, I simply find that claimant has failed to meet \nhis burden of proving by a preponderance of the evidence that he suffered a compensable \ninjury to his low back on December 27, 2021, while working for respondent. \n \nORDER \n Claimant has failed to prove by a preponderance of the evidence that he suffered \n\nRussell – H205408 \n \n14 \n \na  compensable  injury  to  his  low  back  while  working  for  respondent  on  December  27, \n2021,  Therefore, his claim for compensation benefits is hereby denied and dismissed. \n Respondents are liable for payment of the court reporter’s charges for preparation \nof the hearing transcript in the amount of $415.00. \n IT IS SO ORDERED. \n \n     ________________________________________ \n      GREGORY K. STEWART \n      ADMINISTRATIVE LAW JUDGE","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H205408 DOMINIC T. RUSSELL, Employee CLAIMANT SIMMONS PREPARED FOODS, INC., Employer RESPONDENT SEDGWICK CLAIMS MANAGEMENT, Carrier RESPONDENT OPINION FILED SEPTEMBER 6, 2023 Hearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Springdale, Washingt...","fetched_at":"2026-05-19T23:02:29.201Z","links":{"html":"/opinions/alj-H205408-2023-09-06","pdf":"https://labor.arkansas.gov/wp-content/uploads/RUSSELL_DOMINIC_H205408_20230906.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}