{"id":"alj-H206949-2024-01-05","awcc_number":"H206949","decision_date":"2024-01-05","opinion_type":"alj","claimant_name":"Glenda Lurry","employer_name":"Coca-Cola Consolidated, Inc","title":"LURRY VS. COCA-COLA CONSOLIDATED, INC. AWCC# H206949 JANUARY 5, 2024","outcome":"granted","outcome_keywords":["dismissed:1","granted:2","denied:1"],"injury_keywords":["back","hip","lumbar","herniated","wrist","cervical"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/Lurry_Glenda_H206949_20240105.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Lurry_Glenda_H206949_20240105.pdf","text_length":30025,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H206949 \n \n \nGLENDA FAY LURRY, EMPLOYEE CLAIMANT \n \nCOCA-COLA CONSOLIDATED, INC., \n EMPLOYER RESPONDENT \n \nINDEMN. INS. CO. OF NO. AMER., \n CARRIER RESPONDENT \n \n \nOPINION FILED JANUARY 5, 2024 \n \nHearing  before  Administrative  Law  Judge  O.  Milton  Fine  II  on  October  27,  2023,  in \nMarion, Crittenden County, Arkansas. \n \nClaimant pro se. \n \nRespondents  represented  by  Mr.  Rick  Behring,  Jr.,  Attorney  at  Law,  Little  Rock, \nArkansas. \n \n \nSTATEMENT OF THE CASE \n \n On October 27, 2023, the above-captioned claim was heard in Marion, Arkansas.  \nA prehearing conference took place on August 28, 2023.  The Prehearing Order entered \nthat  day  pursuant  to  the  conference  was  admitted  without  objection  as  Commission \nExhibit 1.    At  the  hearing,  the  parties  confirmed  that  the  stipulations,  issues,  and \nrespective contentions were properly set forth in the order. \nStipulations \n At the  hearing,  the  parties  discussed  the  stipulations  set  forth  in  Commission \nExhibit 1.  They are the following, which I accept: \n1. The Arkansas  Workers’  Compensation  Commission  has  jurisdiction  over \nthis claim. \n\nLURRY – H206949 \n \n2 \n2. The  employee/employer/carrier  relationship existed  among  the  parties  on \nJuly 7, 2022, when Claimant sustained a compensable injury to her lower \nback by specific incident. \n3. Respondents accepted this claim as a medical-only one and paid benefits \npursuant thereto. \n4. Claimant’s    average    weekly    wage of    $1,045.64    entitles    her    to \ncompensation rates of $697.00/$523.00. \nIssues \n At  the  hearing,  the parties  discussed the  issues  set forth  in  Commission  Exhibit \n1.  The following were litigated: \n1. Whether Claimant is entitled to additional medical treatment. \n2. Whether  Claimant  is  entitled  to  temporary  total  disability  benefits  from \nOctober 22, 2022, to a date yet to be determined. \n All other issues have been reserved. \nContentions \n The respective contentions of the parties read as follows: \n Claimant: \n1. Claimant contends that she is entitled to  additional benefits  in connection \nwith her stipulated compensable lower back injury. \n Respondents: \n1. To date, all benefits to which Claimant is entitled have been paid and have \nnot been controverted. \n\nLURRY – H206949 \n \n3 \n2. Respondents accepted this claim as a compensable, medical-only claim. \n3. To date, Respondents have paid for all reasonable and necessary medical \ntreatment.    Dr.  John  Brophy  released  Claimant  at  maximum  medical \nimprovement  with  no  work  restrictions,  no  impairment,  and  an  additional \nrecommended treatment on September 26, 2022. \n4. Respondent   employer   provided   work   within   Claimant’s   restrictions \nthroughout  this  claim.    She  returned  to  work  for  Respondent  employer.  \nClaimant was released to return to work without restrictions on September \n26, 2022.  Respondent employer offered working within these restrictions, \nbut  Claimant  has  failed  and/or  refused  to  return  to  work.    To  date, \nRespondents  are  not  aware  of  any  work  restrictions  after  September  26, \n2022.    Therefore,  they  are  not  responsible  for  any  temporary  disability \nbenefits related to this claim pursuant to Ark. Code Ann. § 11-9-526 (Repl. \n2012). \n5. Claimant   requested   a   change   of   physician   to   Dr.   Jordan   Walters.  \nRespondents authorized the initial visit with Dr. Walters on December 27, \n2022.  They have, however, taken the position that no additional treatment \nis  reasonable  and  necessary  in  relation  to  the  compensable  back  injury \nsustained on July 7, 2022. \n6. In  the  alternative,  if  it  is  determined  that  Claimant  is  entitled  to  any \nadditional indemnity benefits, Respondents hereby request a setoff for all \n\nLURRY – H206949 \n \n4 \nbenefits  paid  by  Claimant’s  group  health  carrier,  as  well  as  all  long  and \nshort-term disability and unemployment benefits received by her. \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n After reviewing the record as a whole, including medical reports, documents, and \nother  matters  properly  before  the  Commission,  and  having  had  an  opportunity  to  hear \nthe  testimony of  Claimant  and  to  observe her  demeanor,  I hereby  make  the  following \nfindings  of  fact  and conclusions  of  law  in  accordance  with  Ark.  Code  Ann.  § 11-9-704 \n(Repl. 2012): \n1. The  Arkansas  Workers’  Compensation  Commission  has  jurisdiction  over \nthis claim. \n2. The stipulations set forth above are reasonable and are hereby accepted. \n3. Claimant  has not  proven  by a  preponderance  of  the evidence  that she is \nentitled  to  additional  treatment  of  her  stipulated  compensable  lower  back \ninjury. \n4. Claimant  has not  proven  by a  preponderance  of  the evidence  that she is \nentitled  to  temporary  total  disability  benefits  for  any  period  in  connection \nwith her stipulated compensable lower back injury. \nADJUDICATION \nSummary of Evidence \n Claimant  was  the  sole  witness.  Along  with  the  Prehearing  Order  discussed \nabove,  the  exhibits  admitted  into  evidence  were  Respondents’  Exhibit  1, a  compilation \nof  Claimant’s  medical  records,  consisting  of  one  index  page  and  20  numbered  pages \n\nLURRY – H206949 \n \n5 \nthereafter;  Respondents’  Exhibit  2,  non-medical  records,  consisting  of  one  index  page \nand ten  numbered  pages  thereafter;  and  Respondents’  Exhibit  3,  a  DVD  containing \nsurveillance footage of Claimant. \nA. Additional Treatment \n Introduction.  As the parties have stipulated, Claimant sustained a compensable \ninjury  to  her  lower  back  on  July  7,  2022.    In  this  action,  she  is  seeking,  inter  alia, \nadditional treatment of her back.  Respondents dispute that she is entitled to additional \ntreatment of any type. \n Evidence.    Claimant  is 61  years  old  and  has  a  high  school  diploma.    She  has \ncompleted  some  college,  and  finished  a  food  service  course  of  study  at  vocational \nschool.  Her  career  history  has  been  devoted  exclusively  to  physical  labor—hotel \nhousekeeping, manufacturing, and warehouse work. \n Claimant’s  testimony  was  that  she  went  to  work  for  Respondent  Coca-Cola  in \nNovember  2010.    She  was  employed  there  as  a  multi-machine  operat  or.    She \nexplained: \nI was operating like two, three different machines . . . I was running Odmi, \nand the Odmi is where the full bottle of products comes in, and I was just \nwalking  for packaging it  to be  shipped out  to  the  warehouses  .  .  .  I  ran  a \nHigh Cone, and the High Cone . . . [is a] machine where they had the little \nplastic that holds the six-packs and the eight-packs together for six-packs \nand eight-packs. \n \n The following exchange occurred: \nQ. Now back on July 7 of last year, how did you hurt your [back]? \n \n\nLURRY – H206949 \n \n6 \nA. Pushing a big—pushing a big pallet of trays . . . with a hand jack . . \n. a little jack that you—you have to lift—pump it up and get ready to \npush stuff, yeah. \n \n. . . \n \nQ. Okay.  Was it loaded down with Coca Cola products? \n \nA. It was loaded down with a big bale of trays. \n \nQ. A big bale of trays, okay.  Do you have any idea how much the load \nthat was on the jack weighed? \n \nA. They’ll probably weigh about three to five hundred pounds. \n \n. . . \n \nQ. Okay,  all  right.    Now,  you  were  pushing  it,  and  did  you  feel  some \nproblem with your back? \n \nA. I  was  pushing  it,  and  it  got  stuck  on  the  machine  that  was  next  to \nmy  machine.    It  got  stuck.    Somehow—I  know  I’ve  pushed  that \npallet a thousand times, but somehow that day it got stuck on—on \nthe  next  machine  on  the  cone.    And  I  pulled  it  back  and  tried  to \nstraight[en] it up, and when I pushed it forward, it felt like I stepped \non a[n] electrical wire or something. \n \n Per  Claimant,  she  reported  her  injury  to  her  employer  and  was  thereafter  taken \nby  ambulance  to  Baptist  Health  in  Little  Rock.   Later,  she  went  to  Concentra  in \nMemphis, and then to Dr. Brophy. \n The following exchange took place: \nQ. So what kind of treatment have you had on your back? \n \nA. I haven’t had any—the only thing I ever had was I had like a couple \nof—I  guess  they  call  them  steroid  injections,  steroid  shots.    That’s \nall I had really. \n \nQ. All  right.    You’ve  got  some—you’ve  had  some  steroid  injections.  \nDid they help you? \n\nLURRY – H206949 \n \n7 \n \nA. No, no. \n \nShe  has  been  prescribed  muscle  relaxers.    But  Claimant’s  testimony  was  that  they \nafforded  her  no  relief,  either.    When  asked  what  treatment  she  was  seeking  in  this \nproceeding,  she  answered:   “Something  to  just  make  it  better.”  Claimant  received  a \none-time change of physician to Dr. Jordan Walters.  However, Respondents refused to \ncover any treatment that Walters recommended, which included injections, as a result of \nhis single visit with Claimant, which occurred on December 27, 2022.  No treatment has \nbeen covered since then.  Thereafter, she treated with Dr. Mohamad Moughrabieh, her \nprimary  care  physician.    While  Dr.  Moughrabieh  has  made  referrals  in  order  for  her  to \nreceive  additional  treatment  for  her  back,  she  has  been  unable  to  follow  through  on \nthem because she “couldn’t make the co-pay.”  Moughrabieh himself has not prescribed \nher  any  medication  for  her  compensable  injury.    She  has,  however,  been  taking \nGabapentin,  which  she  already  possessed.    Her  testimony  was  that  this  medication \n“helped, but in a way it did sometimes.” \n In describing her present back condition, Claimant related: \nIt’s  basically  the  same.   I  mean,  I  have  some  days  where  it’s  better  than \nothers  but  it’s—it’s  like—my  4  and  5,  it’s  like  it’s  just  something  just—I’m \nbreathing just getting there, and it radiates into my—into my thighs, and I \ndon’t  know  what  it  is.   I’ve  got  burning  and  pinching  and  stabbing  and \ngrabbing and dash all over my body.  It’s just like lightning or something is \nshooting  through my body, all  over my  body—I’m  talking about my  entire \nbody from my head to my feet.  It—I don’t know what it is . . . [m]y hand—\nmy  hands  go  dead.    They  go  numb,  five,  six  times  a  day,  and  just \nshooting,   burning,   throbbing   .   .   .   [m]y   feet,   my—I’m   talking   about \neverywhere. \n \n\nLURRY – H206949 \n \n8 \nClaimant likened the sensation to that caused by a toothache, and elaborated that  it is \npresent from her head to her toes, including all four limbs.  She rated her pain as being \n10/10 at times; at the time of the hearing, it was 8/10.  She did not take any Gabapentin \nbefore the hearing. \n Eventually,  she  ended  up  treating  with  Dr.  Douglas  Cannon  at  Campbell  Clinic.  \nSteroid injections were proposed; but she could not afford them.   From there, she was \nreferred for physical therapy.  But after appointments there in November and December \nof 2022, she ceased going because she could not afford her deductible.  She explained \nthat  she  did  not  ask  Respondents to  cover  this  treatment.    Regardless,  it  was  her \ntestimony that the therapy did not help. \n Claimant saw Dr. Brophy on three occasions:  in August 2022, then for a follow-\nup  visit,  and  finally  on  September  22,  2022,  after  she  underwent  an  MRI.    She \nacknowledged  the  Brophy  reviewed  the  MRI  and  did  not  see  any  herniation  or  nerve \nroot compression.  He was of the opinion that she did not need any other treatment of \nher  lower  back  concerning  the  injury  of  July  7,  2022.  It  was  his  recommendation  that \nthat she use her private insurance to discover whether she was suffering from an “occult \ninflammatory process.”  While she underwent a nerve conduction study of her arms and \nlegs, the results were normal. \n Claimant agreed that her deposition testimony is that she cannot bend at all.  But \nshe admitted  that  the surveillance footage  in  evidence  depicts  her bending over to get \ninto your Nissan Sentra automobile.  She explained: \n\nLURRY – H206949 \n \n9 \nAnd, yeah, you may have a little surveillance on me.  Yeah, I can—I can \nbend, but it’s going to be what I deal with after I bend.  Yeah, I can drive.  I \nmean,  I  don’t  have  no—I  live  alone.    I’ve  got  to  do  what  I  can  do  for \nmyself, then I’m not trying to become no handicap nobody. \n \n In 2001, she suffered a back injury while working for Wonder Bread.  As a result, \nshe  was  on  light  duty  for  approximately  four  months.    She  injured  her  back  again  in \n2019 as a consequence of a motor vehicle accident.  Her initial testimony was that at no \ntime  during  her  employment  for  Respondent  employer  did  she  seek  treatment  for  her \nback  before  the  July  7,  2022,  accident.    But  shown  the  reports of  multiple  visits  to  Dr. \nMoughrabieh,  where  she  presented  with  leg  and  lower  back  pain,  she  agreed  that  the \ntestimony was not correct.  Although those records reflect that the doctor prescribed her \nGabapentin for neuropathy, she denied being informed of this diagnosis. \n The medical records in evidence show that on March 23, 2015, Claimant went to \nDr. Moughrabieh and complained of non-radiating mild back pain.  She  told the doctor \nthat she “works a very strenuous job, lifting very heavy objects,  and constant bending.”  \nHe  assessed  her  as  having  lumbago  and  prescribed  a  Medrol  dose  pack.    Claimant \nreturned to him on May 22, 2018, and presented with worsening back pain that began \nthree  days  before  but  was  not  due  to  any  trauma  or  accident.    He  diagnosed  her  as \nhaving hip pain. \n On September 13, 2022, Claimant saw Dr. Brophy.  The report reads in pertinent \npart: \nHISTORY: \nMs. Lurry returns today for review of her lumbar MRI.  Her chief complaint \nis inferior lumbar pain.  She is a marginal historian, giving multiple different \ndescriptions  of  her  leg  symptoms.    She  does  describe  bilateral  buttock \n\nLURRY – H206949 \n \n10 \npain, left worse than right.  The leg pain seems to extend into the left, right \nand  interior  thigh,  sometimes  involving  the  tibialis  anticus.    As  best  as  I \ncan  tell,  the  back  pain  is  worse  than  the  leg  pain.    The  leg  pain  is \nintermittent  in  varying  distribution  of  her  left  leg  primarily.    Overall,  Ms. \nLurry reports absolutely no improvement in her back pain since her injury \napproximately  10  weeks  ago.    She  has  not  attempted  a  home  exercise \nprogram.  She is using low-dose ibuprofen.  She has remained at work on \na light duty status. Her regular job requires frequent heavy lifting. She has \nnot considered alternative employment. \n \n. . . \n \nPhysical Exam: \nThe patient is a 60-year-old black female who appears frustrated with her \nongoing symptoms.  Lower extremities—psoas, quadriceps, tibialis anticus \nand   gastrocnemius—5/5   with   encouragement.      Sensory—light   touch \nintact,  L3  through  S1.    Deep   tendon  remarnflexes—patellar  absent; \nAchilles absent.  Pulses—dorsalis pedis—2+.  Straight leg raise elicits left \nbuttock  pain  at  45  degrees.    There  is  also  increased  back  pain  with \ninternal   and   external   rotation   of   the   left   hip.      Back—no   pain   with \ncompression  or  rotation;  there  is  mild  tenderness  at  the  inferior  lumbar \nparaspinal muscles; no definite trigger point.  Gait—very slow, short steps. \n \nNeurodiagnostic Assessment[:] \nLumbar    MRI    11    September,    2022    demonstrates    mild    multilevel \nspondylosis  primarily  involving  the  facet  joints.    There  is  no  evidence  of \nHNP  [herniated  nucleus  pulposus]  or  definite  evidence  of  nerve  root \ncompression. \n \nImpression: \nLumbar myofascial pain associated with lumbar spondylosis. \n \nPlan: \nThe  results  of  the  MRI  and  clinical  situation  were  reviewed  in  detail  with \nMs.   Lurry.    In   my   opinion,   there   is   no   indication   for   surgical \nintervention  or  treatment  with  injections  at  this  time.  We  discussed \nthe  option  of  continued  treatment  with  Ibuprofen  up  to  800  mg  t.i.d.    We \ndiscussed   the   option   of   attempting   to   progress   a   home   endurance \nexercise  program.    Based  on  her  lack  of  improvement  over  the  last  two \nmonths, we  discussed  the  importance  of  scheduling  a  complete \nphysical   through   her   personal   insurance   to   rule   out   an   occult \ninflammatory process.  She is cleared to return to work today with a 30 \n\nLURRY – H206949 \n \n11 \npound  lifting  restriction.   She  will  be  cleared  to  return  to  work  at  full \nduty without restriction 26 September. \n \n(Emphasis added) \n Per  the  report  dated  November  21,  2022,  Claimant’s  EMG/NCS  of  her  lower \nlimbs  was “[n]ormal,”  with “[n]o  entrapment  neuropathy  or  peripheral  neuropathy”  and \n“[n]o lumbosacral radiculopathy.”  She underwent a nerve conduction study of her upper \nextremities on November 28, 2022.  The findings were:  “Mild median neuropathy at the \nleft wrist.  No ulnar or radial neuropathy.  No cervical neuropathy.” \n As part of her physical therapy assessment on November 1, 2022, Claimant was \nasked to indicate on anatomy diagrams were her symptoms were located.  She placed \n“X”  marks  all  over  the  diagrams,  representing  that  she  was  experiencing  symptoms \nliterally from her ears down to her feet, including her upper extremities.  Claimant wrote \nthat these problems began on July 7, 2022—the stipulated date of her injury. \n In  a  form  dated  April  13,  2023,  as  part  of  Claimant’s  application  for  short-term \ndisability  benefits,  Dr.  Moughrabieh  was  asked  whether  Claimant’s  condition—lower \nback pain—was work-related.  He answered, “No.” \n Discussion.    Arkansas  Code Annotated Section 11-9-508(a)  (Repl.  2012)  states \nthat an employer shall provide for an injured employee such medical treatment as may \nbe necessary in connection with the injury received by the employee.  Wal-Mart Stores, \nInc. v. Brown, 82 Ark. App. 600, 120 S.W.3d 153 (2003).  But employers are liable only \nfor  such  treatment  and  services  as  are  deemed  necessary  for  the  treatment  of  the \nclaimant’s injuries.  DeBoard v. Colson Co., 20 Ark. App. 166, 725 S.W.2d 857 (1987).  \n\nLURRY – H206949 \n \n12 \nThe claimant must prove by a preponderance of the evidence that medical treatment is \nreasonable  and  necessary  for  the  treatment  of  a  compensable injury.   Brown, supra; \nGeo  Specialty  Chem.  v.  Clingan,  69  Ark.  App.  369,  13  S.W.3d  218  (2000).    The \nstandard “preponderance of the evidence” means the evidence having greater weight or \nconvincing force.  Barre v. Hoffman, 2009 Ark. 373, 326 S.W.3d 415; Smith v. Magnet \nCove   Barium   Corp.,   212   Ark.   491,   206   S.W.2d   442   (1947).    What   constitutes \nreasonable and necessary medical treatment is  a question of fact for the  Commission.  \nWhite  Consolidated  Indus.  v.  Galloway,  74  Ark.  App.  13,  45  S.W.3d  396  (2001); \nWackenhut Corp. v. Jones, 73 Ark. App. 158, 40 S.W.3d 333 (2001).  In order to prove \nhis entitlement to the requested  treatment, Claimant must also prove that it is causally \nrelated  to  her  compensable  injury.   See  Pulaski  Cty.  Spec.  Sch.  Dist.  v.  Tenner,  2013 \nArk. App. 569, 2013 Ark. App. LEXIS 601. \n As  the  Arkansas  Court  of  Appeals  has  held,  a  claimant  may  be  entitled to \nadditional  treatment,  even  after  the  healing  period  has  ended,  if  said  treatment  is \ngeared toward management of the injury.  See Patchell v. Wal-Mart Stores, Inc., 86 Ark. \nApp.  230,  184  S.W.3d  31 (2004); Artex  Hydrophonics,  Inc.  v.  Pippin,  8  Ark.  App. 200, \n649 S.W.2d 845 (1983).  Such services can include those for the purpose of diagnosing \nthe  nature  and  extent  of  the  compensable  injury;  reducing  or  alleviating  symptoms \nresulting  from  the  compensable  injury;  maintaining  the  level  of  healing  achieved;  or \npreventing  further  deterioration  of  the  damage  produced  by  the  compensable  injury.  \nJordan v. Tyson Foods, Inc., 51 Ark. App. 100, 911 S.W.2d 593 (1995); Artex, supra.  A \nclaimant is not required to furnish objective medical evidence of her continued need for \n\nLURRY – H206949 \n \n13 \nmedical  treatment.   Castleberry  v.  Elite  Lamp  Co.,  69  Ark.  App.  359,  13  S.W.3d  211 \n(2000). \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.  \nId.  In so doing, the Commission is not required to believe the testimony of the claimant \nor  any  other  witness,  but  may  accept  and  translate  into  findings  of  fact  only  those \nportions of the testimony that it deems worthy of belief.  Id. \n Claimant’s  testimony  is  that  she  is  seeking  additional  treatment  in  the  form  of \ninjections  or  other  measures  to  alleviate  her  pain.    She  attributes  her  problems  to  her \nstipulated work-related injury of July 7, 2022.  But Dr. Brophy, based at least in part on \nher  MRI  findings,  opined  that  neither  injections  nor  surgery  were  indicated.    To  the \ncontrary,  he  wrote:   “PCP  [primary  care  physician]  for  complete  Physical  for  unknown \nsource of pain[.]” \n The  Commission  is  authorized  to  accept  or  reject  a  medical  opinion  and is \nauthorized  to  determine  its  medical  soundness  and  probative  value.   Poulan  Weed \nEater  v.  Marshall,  79  Ark.  App.  129,  84  S.W.3d  878  (2002); Green  Bay  Packing  v. \nBartlett,  67  Ark.  App.  332,  999  S.W.2d  692  (1999).    Based  on  my  assessment of  the \nevidence,  I  credit  Brophy’s  opinions.    His  assessment  is  borne  out  by  her  diagnostic \ntests  results.    Her  lumbar  MRI  showed  no  disc  herniation  or  nerve  root  compression.  \n\nLURRY – H206949 \n \n14 \nMoreover,  her  nerve  conduction  study  was  negative  for  lumbosacral  radiculopathy.    It \nmust  also  be  kept  in  mind  that  she  has  complained  of  pain  throughout  her  body—\nincluding areas that no provider has causally related to her lower back.  In addition, the \nevidence  shows  that  Claimant’s  own  personal  physician,  Dr.  Moughrabieh,  gave  his \nopinion that her lower back problems were not work related.  I credit this as well.  Under \nTenner, supra, Claimant has not shown that her claimed need for treatment is  causally \nrelated to her stipulated compensable lower back injury.  Thus, apart from her ability or \ninability to establish the other elements of this issue, she has not proven her entitlement \nto such by a preponderance of the evidence due to this clear shortcoming. \n In  making  this  finding, I  wish  to  reiterate  that  Claimant  by  all appearances  is  a \nsincere individual.  But any belief, no matter how sincere, is not a substitute for credible \nevidence.  Graham  v. Jenkins Engineering, 2004  AR  Wrk.  Comp. LEXIS  79,  Claim  No. \nF112391 (Full Commission Opinion filed March 12, 2004). \nB. Temporary Total Disability \n Introduction.    Claimant  has  also  alleged  that  she  should  be  awarded  temporary \ntotal  disability  benefits  in  connection  with  her  lower  back  injury.    Respondents  have \ndenied that she is entitled to such benefits for any period of time. \n Evidence.    According  to  Claimant,  she  returned  to  work  on  July  11,  2022,  just \nfour  days  after  the  accident  in  question.    She  continued  to  work  light  duty  until  Dr. \nBrophy released her to full duty as of September 26, 2022.  Later, however, she stated \nthat she missed no work as a result of her back injury until October 18, 2022.  This was \nthe last date she worked for Respondent employer.  She has not worked anywhere for \n\nLURRY – H206949 \n \n15 \npay since that time.  Asked why this was the case, she responded:  “Because my—my \nback hurts  all the  time.”   Her  testimony  was that  Dr.  Moughrabieh has taken her off  of \nwork and that he has issued off-work slips.  Claimant explained: \nThe reason why I haven’t been to work is because Coca-Cola was the one \nthat asked me to go take a leave and find out what was going on with me.  \nAnd  while  I  was  out  on  the  leave,  I—I  wasn’t  getting  no—nothing  had \nchanged, so my doctor kept taking me off, and he kept sending me—kept \ntelling them that I needed to go see the orthopedic doctor. \n \nElaborating,  Claimant  recounted  that  after  Dr.  Brophy  gave  her  a  full-duty  release, \nbecause  her  back  condition  had  made  her  unable  to  perform  her  job  standing  up,  she \nbegan performing it while sitting.  This was not allowed.  After 19 days of doing this, her \nsupervisor, Brandon Gross, questioned her on October 18, 2022, regarding whether she \ncould  still  stand  while  working.    When  she  answered  in  the  negative,  she  was  sent \nhome that day with instructions to find out what was wrong with her condition.  Claimant \nrelated that she told Gross that her problem was with her back and that it was related to \nthe work-related incident of July 7, 2022.  But she also stated that she informed him that \nher  pain  was  throughout  her  body.    She  testified  that  she  was  unable  stand  up for  12 \nhours—the  length  of  her  shift—or  for  even  as  little  as  20  minutes.  Claimant  went  on \nleave as of October 22, 2022.  She has not been paid for any time that she has been off \nof  work  purportedly  in  connection  with  her lower  back  condition.   It  was  her admission \nthat she has not gone back to employer and requested to be returned to work. \n Shown  her  application  for  short-term  disability  benefits  that  Dr.  Moughrabieh \nfilled out on her behalf, which again reflects that he checked “No” when asked whether \nher  condition  was  work-related,  Claimant  stated  that  his  answer “probably  was  a \n\nLURRY – H206949 \n \n16 \nmistake . . . had to be a mistake.”  In testifying that she has applied for Social Security \ndisability  benefits,  Claimant  explained:   “my 4  and 5,  it’s  something  seriously  going  on \nwrong with it . . . [a]nd it’s causing all this stuff going on with my body, sir.  I was fine up \nuntil  that  day  at  Coca-Cola.”  Her  application  referenced “that  throbbing  stuff  [that \nClaimant has] going on everywhere.”  She reiterated:  “All of this stuff comes from that \nday.”  The following exchange occurred: \nQ. Before your hurt your back at Coke on July 7 of last year—and this \nis—that’s  the  date  that  everybody  seems  to agree  you  were  doing \nthis thing with the—with the—the hand jack and it got stuck and you \nsaid you hurt your back—before that date, were you having this all-\nover pain that you described to us today? \n \nA. No, sir. \n \nQ. were you having any paid before that day? \n \nA. No, sir. \n \nQ. No pain at all? \n \nA. No, sir. \n \nQ. You were pain-free? \n \nA. Yes. \n \n Discussion.  Claimant’s stipulated    compensable    lower    back    injury    is \nunscheduled.  See Ark. Code Ann. § 11-9-521 (Repl. 2012).  An employee who suffers \na compensable unscheduled injury is entitled to temporary total disability compensation \nfor  that  period  within  the  healing period  in  which  she  has  suffered a  total  incapacity  to \nearn wages.  Ark. State Hwy. & Transp. Dept. v. Breshears, 272 Ark. 244, 613 S.W.2d \n392  (1981).    The  healing  period  ends  when  the  underlying  condition  causing  the \n\nLURRY – H206949 \n \n17 \ndisability  has  become  stable  and  nothing  further  in  the  way  of  treatment  will  improve \nthat  condition.   Mad  Butcher,  Inc.  v.  Parker,  4  Ark.  App.  124,  628  S.W.2d  582  (1982).  \nAlso, a claimant must demonstrate that the disability lasted more than seven days.  Id. § \n11-9-501(a)(1).    Claimant  must  prove  her  entitlement  to  temporary  total  disability \nbenefits by  a  preponderance  of  the  evidence.   Ark.  Code Ann.  § 11-9-705(a)(3)  (Repl. \n2012). \n Dr.  Brophy  rendered  the  opinion  that  Claimant  could  return  to  work  at  full  duty \nwithout  restriction  as  of  September  26,  2022.    I  credit  this,  and  further  find  that  the \npreponderance  of  the  evidence  establishes  that  Claimant  reached  the  end  of  her \nhealing period as of that date—which is before the beginning of the time period that she \nis  claiming  temporary total  disability  benefits,  October 22, 2022.\n1\n  As  for  her  testimony \nthat  Dr.  Moughrabieh  has  taken  her  off  of  work  since  that  time,  assuming  only  for  the \nsake  of  argument  that  this  is  true,  this  is  irrelevant.    This  is  because  I  have  credited \nMoughrabieh’s  opinion  that  the  ostensible  reason  for  his  doing  this—her  lower  back \nproblem—is  not  work-related.   See  supra.    Consequently,  she  has  not  proven  by  a \npreponderance of the evidence that she is entitled to temporary total disability benefits \nfor any period of time. \nCONCLUSION \n In accordance with the Findings of Fact and Conclusions of Law set forth above, \nthis claim for additional benefits is hereby denied and dismissed. \n \n1\nClaimant’s  testimony  made  reference  perhaps  to the  period  beginning  October \n19, 2022.  The result would be the same. \n\nLURRY – H206949 \n \n18 \n IT IS SO ORDERED. \n       ________________________________ \n       Honorable O. Milton Fine II \n       Chief Administrative Law Judge","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H206949 GLENDA FAY LURRY, EMPLOYEE CLAIMANT COCA-COLA CONSOLIDATED, INC., EMPLOYER RESPONDENT INDEMN. INS. CO. OF NO. AMER., CARRIER RESPONDENT OPINION FILED JANUARY 5, 2024 Hearing before Administrative Law Judge O. Milton Fine II on October 27, 2023, in Mar...","fetched_at":"2026-05-19T22:58:08.945Z","links":{"html":"/opinions/alj-H206949-2024-01-05","pdf":"https://labor.arkansas.gov/wp-content/uploads/Lurry_Glenda_H206949_20240105.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}