{"id":"alj-H206962-2023-07-20","awcc_number":"H206962","decision_date":"2023-07-20","opinion_type":"alj","claimant_name":"Jamesg Godwin","employer_name":"Mid South Milling Company Inc","title":"GODWIN VS. MID SOUTH MILLING COMPANY INC. AWCC# H206962 & H206963 JULY 20, 2023","outcome":"denied","outcome_keywords":["dismissed:1","denied:3"],"injury_keywords":["ankle","back"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/GODWIN_JAMESG_H206962_H206963_20230720.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"GODWIN_JAMESG_H206962_H206963_20230720.pdf","text_length":30000,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO. H206962 & H206963 \n \nJAMES G. GODWIN, Employee                                                                               CLAIMANT \n \nMID SOUTH MILLING COMPANY INC., Employer                                      RESPONDENT \n \nTRAVELERS INDEMNITY COMPANY, Carrier                                              RESPONDENT \n \n \n OPINION FILED JULY 20, 2023 \n \nHearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Fort Smith, Sebastian \nCounty, Arkansas. \n \nClaimant represented by JARID M. KINDER, Attorney, Fayetteville, Arkansas. \n \nRespondents represented by GUY ALTON WADE, Attorney, Little Rock, Arkansas. \n \n \n STATEMENT OF THE CASE \n  \n On May 16, 2023, the above captioned claim came on for a hearing at Fort Smith, Arkansas.  \nA pre-hearing conference was conducted on  March 16, 2023, and a pre-hearing order was filed on \nthat same date.  A copy of the pre-hearing order has been marked as Commission’s Exhibit #1 and \nmade 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 this claim. \n2.   The employee/employer/carrier relationship existed on August 5, 2022, regarding file  \n       number H206962 and September 2, 2022 regarding file number H206963. \n 3.  The respondents have controverted the claim in its entirety. \n At the pre-hearing conference the parties agreed to litigate the following issues: \n1.  Whether claimant sustained a compensable injury on August 5, 2022, and September  \n     2, 2022, regarding his right lower extremity. \n\nGodwin-H206962 & H206963 \n2 \n \n2.  Compensation rate.  \n3. If compensable, whether claimant is entitled to medical benefits and temporary total \ndisability benefits. \n4. Attorney’s fees. \nAll other issues are reserved by the parties. \nThe claimant contends that “He sustained a compensable lower extremity injury on August 5 , \n2022,  while  working  for  Midsouth  Milling  Company  in  Fort  Smith,  Arkansas.  Despite  objective \nevidence of injury, the respondents denied compensability of the claimant’s injury. The claimant \ncontends that he is owed medical benefits as well as temporary total disability benefits from September \n23,  2022,  through  a  date  yet  to  be  determined.  Due  to  the  controversion  of  entitled  benefits,  the \nrespondents are obliged to pay one half of the claimant’s attorney’s fee. Claimant reserves the right to \nraise additional contentions at the hearing of this matter.” \nThe respondents contend that “the claimant did not sustain a compensable injury on either \ndate. Claimant’s complaints are the result of a preexisting condition and/or condition which did NOT \noccur at work. As a result, the claimant is not entitled to any medical or indemnity benefits.”   \n From a review of the entire record, including medical reports, documents, and other matters \nproperly  before  the  Commission,  and  having  had  an  opportunity  to  hear  the  testimony  of  the \nwitnesses and to observe their demeanor, the following findings of fact and conclusions of law are \nmade 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 on March \n16, 2023, and contained in a pre-hearing order filed that same date are hereby accepted as fact. \n 2.   Claimant has failed to prove by a preponderance of the evidence that he suffered a \n\nGodwin-H206962 & H206963 \n3 \n \n \ncompensable injury to his right Achilles tendon on August 5, 2022, or on September 2, 2022. \n \n FACTUAL BACKGROUND \n As reflected in the heading of this case, there are two separate claims for benefits that were \ndecided in this matter.  Since the proof in the two cases overlapped, the two claims were tried together.  \nHEARING TESTIMONY \n \n Claimant testified that he injured his lower right extremity on August 5, 2022, when a piece of \nequipment malfunctioned, and he hurried to address the problem as quickly as he could. He had only \ntaken a step or two when he felt something give, which claimant said he later found out was a partial \ntear in his Achilles tendon. Claimant stated that he fell down and remained on the floor for five to ten \nminutes, during which time he felt “something retract up to about mid-calf.” After getting up, claimant \nsaid he went to the office of the plant manager, Ben Smith, to tell him what happened and that he was \ngoing to the hospital. \n At the hospital, claimant said that he was seen in the ER and did not receive any treatment, \nonly an ultra-sound to confirm that there was a partial tear in his Achilles tendon. Claimant next saw \nhis primary care physician who then referred him to an orthopedic surgeon. Claimant said he wore a \nwalking boot on the advice of his primary care physician.  \n Claimant testified that he had a “reinjury, another partial tear” on September 2, 2022. On that \nday, claimant was changing a screen on the hammer mill and while doing so, felt the Achilles tendon \nsnap again. Once again, claimant said he reported the incident to Ben Smith. It was after the second \nincident that claimant saw Dr. Justin Clayton, an orthopedic doctor. Claimant was released from Dr. \nClayton  without  restrictions  on  December  8,  2022;  claimant  testified  that  this  release  was  at  his \nrequest.  As  of  the  date  of  the  hearing,  claimant  had  no  appointments  to  see  any  other  medical \nproviders for his right Achilles tendon injury and said that the tendon was slowly getting better. \n\nGodwin-H206962 & H206963 \n4 \n \n \n Claimant  was  terminated from  respondent  Mid  South  on  September  23,  2022.  He  believed \nthat it was because he asked for workmen’s compensation coverage. Claimant remained off work from \nSeptember 23, 2022, through December 8, 2022, during which time he was going to physical therapy \nbut was afraid to work full-time because he did not want to have a full tear in his Achilles tendon. \n On cross-examination, claimant said he had started working at Mid South Milling in February \nof  2019.  Claimant  worked  in  the  mixing  room  as  an  operator,  which  meant  he  would  formulate  a \nrecipe, which would then be entered into the computer, creating a mix of the chicken food. Claimant \nwas required to watch the operation process, but he was not physically pouring materials to make the \nmix. He was required to take care of the equipment and watch it during the mixing process. \n Claimant testified that if he was injured on the job, he was supposed to report it to Ben Smith. \nOn August 5, 2022, claimant conceded he alone determined that he was going to Mercy Hospital; he \ndid  not  ask  Mr.  Smith  where  he  should  go  for  treatment.  Claimant  did  not  ask  Mr.  Smith  to  file \nanything for him on that date, and in fact, it was not on his mind at that time that this was going to \nbe a work injury or claimed as a work injury. Claimant confirmed that he returned to work on the next \nscheduled workday and worked until September 2, 2022, when he had a similar injury. Once again, \nclaimant said he told Mr. Smith what had happened, but he was not sent for treatment, nor asked if \nhe  wanted  to  fill  out  any  forms.  Following  the  September  2,  2022  incident,  claimant  remained  off \nwork until he saw Dr. Clayton on September 7, 2022. He verified that before September 23, 2022, he \nhad not asked Mr. Smith to file a workers’ compensation claim for him. \n Respondent’s attorney asked about the record from Mercy Hospital on August 5, 2022. The \nfollowing exchange occurred: \nQuestion  (by  Mr.  Wade) On  this  day  it says, “this began to bother him six \nweeks ago.” That is Page One of Respondent’s Exhibit. So, the pain you are \ndescribing, “leg pain: patient complains of light posterior leg pain that begins \nat ankle region and extends at his posterior leg.” And then they say, “this \n\nGodwin-H206962 & H206963 \n5 \n \n \nbegan to bother him six weeks ago.” So, they are saying that the same pain \nyou are complaining of on August 5 had been going on for six weeks? \nAnswer (by claimant) I do not recall that. \n  \nQ.  Now  you  have  already  gone  to  your  doctor,  Dr.  Ellis,  with  the  same \ncomplaints, correct? \nA. Correct. \n \nQ.  OK,  because  on  page  24  of  the  same  record  the  August  5,  2022  Mercy \nHospital emergency room record, “patient states his right Achilles tendon \npain for approximately six weeks and has seen his primary care physician with \nthis.  Patient  was  initially  referred  for  an  MRI  to  evaluate  the  extent  of  his \ninjury, but it was denied by his insurance company, so he was scheduled to \nstart physical therapy this next week.” So, you had seen Dr. Ellis before \nAugust  5.  She  had  recommended  an  MRI  which  was  denied,  but  she  had \nalready scheduled you for physical therapy; correct?  \nA. She had not scheduled me for physical therapy until after the tendon tear. \n \nQ. Well this says she scheduled the therapy because you couldn’t have the \nMRI so is this wrong? \nA. The MRI was not scheduled until after the tear. She tried to refer me for \nit. \n \nQ. Sir, she tried to refer you for an MRI before August 5 of 2022, but because \nof the Achilles pain you were having six weeks before August 5, correct? \nA. This is not correct. \n \nQ. That is the way the record reads. That’s what someone told the emergency \nroom. \nA. I have never been referred for an MRI for anything before my tendon tear. \n \nQ.  Did  you  tear  your  tendon  before  August  5  of  2022,  because  you  are \ncomplaining that the same pain began in June? \nA. No, sir. \n \nQ. So you are saying this medical record is wrong? \nA. I am saying that the dates may be mixed-up.... \n \nQ.  This  is  August  5  of  2022.  So,  you  are  telling  us  today  that  all  of  this \nhappened: you saw your primary care physician, you had an MRI denied and \nyou have physical therapy scheduled all on that day? \nA. I told her I had pain in my foot prior, but I had not been referred for an \nMRI before the tendon tear. And my insurance did deny it. \n \nQ. Sir, that didn’t all happen on August 5. That happened before August 5 \nbecause you told them that. \n\nGodwin-H206962 & H206963 \n6 \n \n \nA. Then that is something I don’t recall. I suppose it did happen, then. \n(TR.31-34) \n  \n At that point, the court and counsel discussed how neither party had introduced any \nrecords from before August 5, 2022, to shed light on what the previous visit with Ms. Ellis\n1\n \nhad documented. The parties were given the opportunity to supplement the exhibits with \nthe earlier medical records, but claimant objected to doing so.  \n Respondent continued his cross-examination: \nQ. When you were in the emergency room on August 5, 2022, when it says \n“patient states his right Achilles pain had been going on for approximately six \nweeks” is that reporting what you told them? \nA. I don’t remember. \n \nQ. When it says, “he has seen his primary care physician for this.” That was \nalready  in  the  works  because  you  had  seen  Dr.  Ellis  or  APN  Ellis  not  on \nAugust 5, 2022, because you didn’t see her that day, correct? \nA. I didn’t start physical therapy until after the tendon. \n \nQ. I am not denying that. What it says it was already scheduled to start because \nDr. Ellis had scheduled it before August 5, 2022. Do you understand? August \n25 [sic] the only medical provider you saw was the hospital emergency room, \ncorrect? \nA. On August 5?  \n \nQ. OK? \nA. The next person I seen was my primary. \n \nQ. I understand that. \nA. Then she referred me to physical therapy.  \n \nQ. Well I understand that’s what your mind may tell you, but you had already \nbeen scheduled for physical therapy before that, correct? \nA. If that’s what’s she says, then it is true. \n \nQ. Listen to my question. August 5, the day you claimed you were injured, \nyou went to the emergency room, correct? \nA. Yes. \n \n \n1\n The parties referred to Stefanie Ellis, APN, as “Dr. Ellis” at times during the testimony. Any references to Dr. Ellis \nor Ms. Ellis are to the same person. \n\nGodwin-H206962 & H206963 \n7 \n \n \nQ. And that’s the only place you went that date? \nA. Yes. \n \nQ. And that day you told the emergency room personnel this has been going \non for six weeks, correct, based on this record? \nA. I suppose so. \n \nQ. You also told them you had seen Nurse Ellis or APN Ellis before August \nthe 5, 2022, correct? \nA. Yes. \n \nQ. You also told them you had been initially referred for any MRI that was \ndenied, correct? \nA. I suppose. I don’t recall. \n \nQ. You also told them you were scheduled to start physical therapy the next \nweek based on what Dr. Ellis did or APN Ellis, correct? \nA. I do not remember. \n \nThe Court: Mr. Wade, you can call her Dr. Ellis if you want to. I just wanted \nto make sure you are talking about the same person. \n \nQ.  (by  Mr.  Wade)  But  you  would  not  have  gotten  that  information  from \nanywhere else because you didn’t see Dr. Ellis that day, correct? \nA. (by claimant) Correct. \n \nQ. Ok. Now, when you did see Dr. Ellis, as the court has pointed out on page \n59, that was August 9 of 2022, so it would be four days later, correct? \nA. Sounds right. \n \nQ. And at that time she says, “James has come in today for his pain  in  his \nright  Achilles  regions  times  three months,” that you have been having this \npain in this area for three months. Do you know where she would have gotten \nthat if he did not get it from you? \nA. I don’t know. \n \nQ. And it goes on the say “patient was initially referred for an MRI, but it was \ndenied by his insurance company, so he was scheduled for physical therapy \nto start this week.” That’s the same thing the emergency room record says, \nisn’t it? \nA. I don’t know. I was not scheduled for physical therapy until after the tear. \n \nQ. I understand it didn’t take place until after the tear, but it was scheduled \nbeforehand based on these records, correct. \nA. I don’t know. That has been a while. (TR.38-41) \n \n\nGodwin-H206962 & H206963 \n8 \n \n \n On redirect, claimant was again read the portion of the August 5, 2022, record that mentions \nproblems in his leg from six weeks prior and was then read the subsequent line of the report “But \nsignificantly worsened. Patient fell after feeling something move and his leg give out.” Claimant \ntestified that he was not denying that he had leg pain prior to August 5, 2022. The redirect examination \nconcluded with claimant verifying that he told physical therapist Lane Carter on August 11, 2022: “54-\nyear-old male with complaints of right ankle pain and disfunction. Symptoms started in early June and \nhave worsened with more acute worsening episodes happening last Friday, August 5, 2022, when he \nshifted his weight and had increased pain and swelling.” \n After  claimant  rested,  Benjamin  Smith  was  called  as  a  witness  for  respondent.  He  is  the \noperations/plant manager at Mid South Milling in Fort Smith. After describing claimant’s job duties, \nMr. Smith verified that he was at work on both August 5 and September 2, 2022. Mr. Smith said on \nAugust 5, 2022, “He did not come to the office at all. He actually went to his vehicle, and I assume \nwent to get a doctor’s advice or whatever it was, but he basically tried calling and ended up sending a \ntext message to my assistant plant manager stating he had to leave.” At that time, claimant did not say \nwhy he had to leave or state that he was injured at work. Mr. Smith said claimant’s version of what \nhappened on August 5--claimant coming into Mr. Smith’s office and telling him what had happened, \nand that claimant was going to the emergency room – did not happen. Had claimant reported an injury \non the job, Mr. Smith said that he would have filled out a form and he personally would have taken \nclaimant to MedExpress.\n2\n \n Mr. Smith had noticed that claimant had issues walking: “He has always had issues walking, \n \n2\n  Claimant  objected  to  this  testimony  from  Mr.  Smith  on  the  grounds  that  lack  of  notice  was  not  raised  by  the \nrespondents.  I  allowed  this  testimony  for  the  purpose  of  assessing claimant’s credibility,  see Service  Chevrolet  v. \nAtwood, 61 Ark. App. 190, 966 S.W.2d 909 (1998) (Overruled on other grounds by Frances v. Gaylord Container \nCorp., 341 Ark. 527, 20 S.W.3d 280 (2000)) \n\nGodwin-H206962 & H206963 \n9 \n \n \nbut for a few months before that he was definitely hobbling around.” After again denying that there \nhad been a report on August 5, 2022, that claimant suffered an injury at work, Mr. Smith said that \nclaimant told him “he was having issues and went to a doctor.” Claimant returned to his job as an \noperator when he was next scheduled to work. \n Regarding the second event of September 2, 2022, Mr. Smith again denied that an injury was \nreported  to  him  on  that  date  and  repeated  what  his  course  of  action  would  have  been  had  such  a \nreport been made. On September 23, 2022, Mr. Smith said that was the first time that he had learned \nof any claimed work injury. The following then took place with Mr. Smith and respondent’s counsel: \nQ. (by Mr. Wade) Now what did you ask him at that point and time? \nA.  (by  Mr.  Smith) I stated, “Do you feel like this is work related?” And his \ncomment was “That doesn’t matter.” \n \nQ. Meaning what? \nA. I didn’t know. I basically stated to him. “Well, it does matter. If you feel it \nis work related, we have ways to deal with it.” He then walked away, and I had \nconversations with HR and stopped like that. \n \nQ. So you specifically inquired if it was work related and he didn’t really have \na response at that time? \nA. His response was “It didn’t matter.” \n \nQ. Ok. Now, did you have another conversation with him later on that same \ndate? \nA. I do not recall. \n \nQ. Ok. Now, at some point he was suspended, is that correct? \nA. That is correct. \n \nQ. And what was the purpose of that suspension? \nA. We felt he was wrongfully trying to claim workers’ comp on something that \nagain, he never previously stated was. \n \n On  cross-examination,  Mr.  Smith  said  claimant  was  not  terminated  for  filing a workers’ \ncompensation claim, but rather because he thought claimant was asking about filing a fictitious claim. \nWhen asked if claimant fell on August 5, 2022, Mr. Smith said he did not deny that happened, but he \n\nGodwin-H206962 & H206963 \n10 \n \n \nhonestly  did  not  know.  Mr.  Smith  did  not  keep  a  copy  of  the  text  message  that  was  sent  to  Steve \nStanart because it didn’t say that claimant had an injury but that he was going to the hospital. \n Claimant testified in rebuttal that he had a Cricket cellphone and did not send texts on it.  He \nspecifically denied that he had sent a text about his injury to anyone at his employer.  \n \nREVIEW OF THE EXHIBITS \n \n Dr. Seth Bartholomew made this entry in the Fort Smith Mercy Hospital Emergency Room \nnotes on August 5, 2022, at 1:52 P.M.: \n“Mr. Godwin is a 54-year-old man who presents to the emergency department today \nwith complaints of right heel and leg pain. Patient states his right Achilles tendon pain \nfor approximately 6 weeks and has seen his primary care physician for this. Patient \nwas initially referred for an MRI to evaluate the extent of his injury, but it was denied \nby  his  insurance  company,  so  he  was  scheduled  to  start  physical  therapy  this  next \nweek. Patient states at work today that he lunged forward quickly and bore all of his \nweight on the ball of right foot. Patient states he felt an instant pain extending from \nthe heel of his right foot up through the calf muscle and states he feels like something \nis ‘moving in there’.  Patient states the leg gave way causing him to fall.” (CL.X. 24) \n \nAn ultrasound test was conducted that same day at 5:01 P.M. with the following impression: \n \n“Intact but thickened and heterogeneous right Achilles tendon at real time imaging. \nThis   is   consistent   with   tendinopathy   and/or   partial   tear.   No   full-thickness \ntear.”  (CL.X 40) \n \nClaimant was discharged by APRN Paula Ballard at 6:30 P.M. with the following entry: \n“Wrap the affected foot for comfort. Consider  an  insole  to  absorb  shock.  Use \nNSAIDs for pain and swelling. Start with physical therapy as directed by your primary \ncare physician. Return to emergency department for further evaluation of any red flag \nor concerning symptoms.” (CL. X. 37) \n \n   On August 9, 2022, claimant saw APN Stefanie Ellis at Mercy Clinic Free Ferry.  Her \nentry copied much of what Dr. Bartholomew recorded on August 5, 2022:  \n \n“Subjective:   James  has  come  in  today  for  his  pain  in  the  rt  Achilles  region  x  ~  3 \nmonths. Patient was initially referred for an MRI to evaluate the extent of his injury, \nBut  it  was  denied  by  his  insurance  company,  so  he  was  scheduled  to  start  physical \n\nGodwin-H206962 & H206963 \n11 \n \n \ntherapy this week. Last week states while at work launched forward quickly and bore \nall of his weight on the ball of his right foot. States he felt an instant pain extending \nfrom the heel of his right foot up through the calf muscle and states he felt something \nwas “ moving in there.”  Patient states the leg gave way causing him to fall. Went to \nthe  ER,  u/s  completed  and  Achilles  tendinopathy  and  partial  tear ID’d.  Has \ncontinued with pain. The history is provided by the patient.”  \n \n This entry concludes with a referral to Orthopedic Surgery (R.Med. X. 59), but claimant began \na course of physical therapy on August 11, 2022, which continued until November 22, 2022.  Nothing \nin     those     notes is     critical     to     a     determination     of     the     issues     in     this     matter.  \n Claimant  was  seen  by  orthopedic  surgeon,  Justin  Clayton,  at  Mercy  Clinic  River  Valley  on \nSeptember 7, 2022.  Dr. Clayton reported as follows: \n“History: 54-year-old male who had an Achilles injury on the right about a month ago \nor a little bit more than that. He had another injury just about 5 days ago which seems \nto have completed a partially torn Achilles as best he can tell. In a walking boot... \n \nExam: 54-year-old overweight male in no distress who is alert and oriented. He has a \npalpable  defect  in  his  Achilles  and  some  tenderness  to  palpitation  in  that  location. \ncompression of his calf does not cause plantarflexion of the foot. Skin is intact. \n \nImaging:   I  reviewed  the  plain  radiographs  that  were  done  previously  [which]  are \nunremarkable. \n \nMedical  decision  making:  54-year-old  male  with  an  Achilles  tendon  rupture  on  the \nright.  I  discussed  with  him  how  this  would  best  be  treated  without  surgical \nintervention. It is important that he follows the non-surgical protocol which we have \ngiven him, and he can also give a copy to his physical therapist. We will place a heel \nlift into his boot today. He should not be on ladders and should have a 15 lb lifting \nrestriction. We will see him in 4 weeks for exam only no imaging.” (CL. X. 77) \n \n Claimant returned to see APN Ellis on October 4, 2022, but little about that visit related to \nhis Achilles’ tendon injury.  He completed his course of physical therapy and on December 7, 2022, \nreturned to Dr. Clayton.  His report of that date reads as follows: \n“HPI: Patient who has been treated non-surgically  for  an  Achilles  tendon \nrupture on the right. He has been a little more aggressive than we would like to \nhave seen, however he needs to be back at work and at this point is not having \na significant amount of pain nor is he having significant dysfunction.”  \n(CL. X. 128) \n\nGodwin-H206962 & H206963 \n12 \n \n \n \nDr. Clayton released claimant as of December 9, 2022, with no restrictions.  \nADJUDICATION \n \n In order to prove a compensable injury as the result of a specific incident that is identifiable \nby time and place of occurrence, a claimant must establish by a preponderance of the evidence (1) an \ninjury arising out of and in the course of employment; (2) the injury caused internal or external harm \nto  the  body  which  required  medical services  or  resulted  in  disability  or  death;  (3)  medical  evidence \nsupported  by  objective  findings  establishing  an  injury;  and  (4)  the  injury  was  caused  by  a  specific \nincident identifiable by time and place of occurrence. Odd Jobs and More v. Reid, 2011 Ark. App. 450, \n384 S.W. 3d 630. 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  proving  by  a \npreponderance of the evidence that he suffered a compensable injury. \n Initially, I  do  not  find  claimant's  testimony  particularly  credible.  As  there  were  only  two \nwitnesses with diametrically opposed testimony on crucial issues, it is necessary to determine which \nwitness was the more credible.  In virtually every discrepancy between claimant’s testimony and that \nof  Mr.  Smith,  I  believed  Mr.  Smith;  most  significantly,  I  believe  what  Mr.  Smith  said  regarding \nclaimant’s failure to report a work-related injury on August 5, 2022. Claimant’s dispute with the entries \nin  the  emergency  room  records  about  when  the  MRI  was  denied  and  when  physical  therapy  was \nscheduled to begin also served to undermine his credibility on both of his claims.\n3\n \n  \n \n3\n Claimant’s failure to provide the medical records of the medical treatment for his right Achilles tendon during the \nprevious few  months  before  his  August  5,  2022,  visit  to  the  emergency room  was  puzzling.  Claimant was  evasive \nwhen questioned about when an MRI was turned down by his private insurance and when physical therapy was due \nto  commence;  if  his  version  of  the  events  leading  up  to  August  5,  2022,  was  accurate,  those  records  should  have \nsupported his contentions.   \n\nGodwin-H206962 & H206963 \n13 \n \n \nThe August 5, 2022, claim \n Before claimant left work on August 5, 2022, to go to the ER at Mercy Hospital, he had already \nbeen examined by his personal physician, and a course of physical therapy had been ordered for him.  \nThe provider that treated him  prior to August 5, 2022,  thought the problem was severe enough to \nwarrant an MRI, but according to claimant, his insurance denied coverage for that test.  At the ER on \nAugust 5, 2022, an ultrasound test was conducted with results that were “consistent with tendinopathy \nand/or partial tear. No full-thickness tear.”  Claimant was returned to his primary care physician and \nbegan the previously scheduled course of physical therapy.  There are no objective findings from the \nAugust 5, 2022, ER visit or from the follow-up with APN Ellis on August 8, 2022, that what was seen \non  the  ultrasound  at  the  ER  did  not  exist  prior  to  August  5,  2022.     Claimant’s planned  course  of \ntreatment  before  August  5,  2022,  was  to  begin  physical  therapy  the  following  week;  his  course  of \ntreatment after August 5, 2022, was the same.   As such, claimant lacks an objective finding that his \nwork  activity  on  August  5,  2022,  caused tendinopathy and/or a partial tear of his right Achilles’ \ntendon.   \nThe September 2, 2022, claim \n Claimant’s proof as to his second claim is even more scant than that of the August 5, 2022, \nclaim.   The only objective finding in the September 7, 2022, record from Dr. Clayton was “He has a \npalpable defect in his Achilles...”  The other entries are either a subjective finding of tenderness or \nwhat claimant related in the history: “He had another injury just about 5 days ago which seems to have \ncompleted  a  partially  torn  Achilles  as  best  he  can  tell  (emphasis  added).”  That  is  not  an  objective \nfinding by Dr. Clayton.  Dr. Clayton did not see the need for further imaging but noted that those \ndone previously were “unremarkable.”   The course of treatment was: “He should not be on ladders \nand should have a 15 lb. lifting restriction. We will see him in 4 weeks for exam only, no imaging.”  \n\nGodwin-H206962 & H206963 \n14 \n \n \nHowever, there is no evidence that claimant provided his employer with these restrictions.   \nConclusion \n In his post-hearing brief, claimant correctly stated that an employer takes an employee how \nhe  finds  him,  and  pre-existing  conditions  that  are  aggravated  by  work-related  activities  can  be \ncompensable injuries.  However, the credible evidence in this case does not support the contention \nthat claimant suffered tendinopathy and/or a partial tear of his right Achilles’ tendon as a result of \nwork-related  activities  on  either  August  5, 2022,  or  September  2,  2022.   Further, it was claimant’s \ntestimony  that  he  chose  not  to  work  from  September  23,  2022,  through  December  7,  2022;  the \nrestrictions placed on him by Dr. Clayton on September 7, 2022, did not prevent him from working \nfor the two weeks prior to his termination.   As such, I find claimant failed to prove his claim by a \npreponderance  of  the  evidence. It is therefore unnecessary for me to determine claimant’s average \nweekly wage for the purpose of temporary total disability payments. \n \nORDER \n \n Claimant has failed to meet his burden of proving by a preponderance of the evidence that he \nsuffered  a  compensable  injury  to  his  right  Achilles  tendon  on  August  5,  2022,  or  on  September  2, \n2022. Therefore, his claim for compensation benefits is hereby denied and dismissed. \nRespondent  is  responsible  for  paying  the  court  reporter  her  charges  for  preparation  of  the \nhearing transcript. \n \n IT IS SO ORDERED. \n                                                                                              \n_______     \n JOSEPH C. SELF \nADMINISTRATIVE LAW JUDGE","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H206962 & H206963 JAMES G. GODWIN, Employee CLAIMANT MID SOUTH MILLING COMPANY INC., Employer RESPONDENT TRAVELERS INDEMNITY COMPANY, Carrier RESPONDENT OPINION FILED JULY 20, 2023 Hearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Fort Smith, Sebast...","fetched_at":"2026-05-19T23:05:33.366Z","links":{"html":"/opinions/alj-H206962-2023-07-20","pdf":"https://labor.arkansas.gov/wp-content/uploads/GODWIN_JAMESG_H206962_H206963_20230720.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}