{"id":"alj-H207527-2023-07-11","awcc_number":"H207527","decision_date":"2023-07-11","opinion_type":"alj","claimant_name":"Michael Jenkins","employer_name":"Fence World Inc","title":"JENKINS VS. FENCE WORLD INC. AWCC# H207527 JULY 11, 2023","outcome":"granted","outcome_keywords":["granted:1"],"injury_keywords":["strain","knee","wrist","back","hip","neck","shoulder","rotator cuff"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads//JENKINS_MICHAEL_H207527_20230711.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"JENKINS_MICHAEL_H207527_20230711.pdf","text_length":45007,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H207527 \n \nMICHAEL KEVIN JENKINS, EMPLOYEE       CLAIMANT \n \nVS. \n \nFENCE WORLD INC., EMPLOYER            RESPONDENT  \n \nBRIDGEFIELD CASUALTY INSURANCE COMPANY/ \nCARRIER/SUMMIT CONSUSTING, LLC, TPA           RESPONDENT  \n \nOPINION FILED JULY 11, 2023 \n \nHearing before Administrative Law Judge, James D. Kennedy, on the 16\nth\n day of May, \n2023, in Little Rock, Pulaski County, Arkansas. \n \nClaimant  is  represented  by  Mr.  B.  Tanner  Thomas,  Attorney-at-Law,  Little  Rock, \nArkansas. \n \nRespondents  are  represented  by  Mr.  Jason  M.  Ryburn,  Attorney-at-Law,  Little  Rock, \nArkansas. \n \nSTATEMENT OF THE CASE \n \n A  hearing  was  conducted  on  the 16\nth\n  day  of  May,  2023,  where  the  claimant \ncontended  he  was  injured  in  a  motor  vehicle  accident  that  occurred  during  his \nemployment  and  that  his  injuries  were  compensable;  that  he  was  entitled  to  medical \nbenefits,  temporary  total  benefits,  and  attorney  fees  as  a  result  of  the  accident. The \nrespondents contended that the claimant’s current conditions and his need for treatment \nwere not related to the May 11, 2022, motor vehicle accident; that the claimant suffered \nfrom  pre-existing and unrelated  conditions;  that  the  claimant  returned to  work after the \naccident and that, consequently, no TTD was owed.  A copy of the Prehearing Order was \nmarked “Commission Exhibit 1” and made part of the record without objection.  The Order \nprovided   that   the   parties   stipulated   that  the  Arkansas  Workers’  Compensation \n\nJENKINS – H207527 \n \n2 \n \nCommission  had  jurisdiction  of  the  within  claim  and  that  an  employer/employee \nrelationship existed on May 11, 2022, the date of the claimed injury in question.  At the \ntime of the hearing, the parties were able to stipulate that the claimant was earning an \naverage  weekly  wage  of  $676.00  and  that  consequently,  the  TTD/PPD  rates  for  the \nclaimant were $451.00 / $338.00, respectively.       \n The  claimant’s  and  respondent’s  responses  were  set  out  in  their  respective \nresponses  to  the  prehearing  questionnaire  and  made  a  part  of  the  record  without \nobjection.  The sole witness was Michael Kevin Jenkins, the claimant.  From a review of \nthe record as a whole, to include medical reports and other matters properly before the \nCommission, and having had an opportunity to observe the testimony and demeanor of \nthe witness, the following findings of fact and conclusions of law are made in accordance \nwith Arkansas Code Annotated §11-9-704. \nFINDINGS OF FACT AND CONCLUSSIONS OF LAW \n1. The Arkansas Workers’ Compensation Commission has jurisdiction over this \nclaim. \n \n2.  That an employer/employee relationship existed on May 11, 2022, the date of \nthe  claimed injuries.   At  the  time  of  the  claimed  injury,  the  claimant  earned \nan  average   weekly  wage   of   $676.00,  sufficient  for  TTD/PPD  rates  of \n$451.00 /  $338.00 respectively. \n \n3.  The respondents are estopped from denying the responsibility of the visit to the \nUAMS  ER  on  May 11,  2022, notwithstanding  the  fact  that the  injury  was  not \nfound   to  be   compensable,   and   that   the  respondents   are   consequently \nresponsible  for  said  visit.    However,  the  respondents  are  not  found  to  be \nresponsible for the return visit to the UAMS ER on May 14, 2022. \n  \n4.  That the claimant has failed to satisfy the required burden of proof that his claim \nof an injury which constituted a strain to his right lower leg and any remaining \nclaim of an injury to the right lower leg and knee is compensable. \n \n5.  That the claimant has failed to satisfy the required burden of proof to show that \nthe remaining claims for injuries to various body parts are compensable.  \n\nJENKINS – H207527 \n \n3 \n \n6.  That the question for the medical treatment for the claimed injuries are found \nto be moot, with the exception of the initial visit to the UAMS ER on May 11, \n2022. \n  \n7.  That the claimant has failed to satisfy the required burden of proof to show he \nis entitled to TTD. \n \n8.  The question of attorney fees allowed pursuant to Arkansas Code Annotated \n§11-9-715, is found to be moot. \n \n9.  If  not  already  paid,  the  respondents  are  ordered  to  pay  for  the  cost  of the \ntranscript forthwith. \n \nREVIEW OF TESTIMONY AND EVIDENCE \n The  Prehearing  Order,  along  with  the  prehearing  questionnaires  of  the parties \nwere admitted into the record without objection.  The claimant submitted one exhibit that \nwas  admitted  into  evidence  without  objection  and  primarily  contained  medical  records, \nalong with a copy of the accident report.   The respondents exhibit one was admitted over \nthe  objection  of  the  claimant  and  was  an  Opinion  previously  entered  in  regard  to  a \nprevious workers’ compensation claim by the claimant in regard to the claimant’s right \nwrist.  The respondents also submitted a copy of the deposition of the claimant that was \nadmitted without objection.  \n The claimant was the sole witness and testified that he attended high school but \nnever graduated and never obtained a GED, but attended a “special class.”  He had spent \nmost of his working life, painting, landscaping, working for a machine shop, working for \nHoward Garner Fencing, and had also learned to weld.  Regarding the accident on May \n11, 2022, the claimant testified that there was a job in the England/Scott area where they \nwere going to build a fence and while driving there, a women pulled out of the driveway \nof the New Life Church, and the claimant slammed into her.  He did not immediately go \nto the hospital but sat there waiting for the fire department to get him out of the truck he \n\nJENKINS – H207527 \n \n4 \n \nwas driving.  An ambulance came and picked up the women in the other vehicle and took \nher to the hospital.  The claimant talked to Brachman, a guy in the office at work, who told \nhim  to  hang  on,  and  who  printed  off  the  insurance  papers  and  brought  them  to  the \naccident scene.  The fire department finally opened the door of the claimant’s vehicle and \nhe was helped towards the vehicle of Luke Brachman, the gentleman who brought the \ninsurance papers to the accident scene.  The claimant was later taken to the emergency \nroom at UAMS and dropped off by someone. (Tr. 5-10) \n The claimant testified that the UAMS ER treated his leg, took X-rays, and also an \nMRI.  The claimant’s main complaints were the swelling in the calf of his leg, his lower \nback,  hip,  and  his  neck  and  he  thought  he  was  given  a  muscle  relaxer.    He  was  later \ntreated  at  Pinnacle  Spine  Clinic  and  Flex  Worx.    He  also  remembered  going  back  to \nUAMS for a second time, again with complaints regarding his back, legs, and neck.  He \nalso remembered being treated at Flex Worx on May 25\nth\n by Sandy Cleveland, and his \nmain  complaints  were  hip,  neck,  and  back,  with  continued  physical  therapy,  and  who \neventually recommended an MRI.  (Tr. 11-13) \n He was eventually referred to Dr. Glenn Crosby for a single visit and then referred \nto Pinnacle Spine by his “injury lawyer” for his third-party claim where he was seen by \nDoctor  Hood.  (Tr.  14)    He  stated  that  he also  saw  Dr.  Brian  Reece,  who  reviewed  the \nsecond MRI of his back, hip, neck and knee.  The claimant stated he saw the MRI and he \nhad a torn disc in his back, and they made an incision in his neck and back.  Afterwords, \nhe still had problems with his right hip, knee, and back.  He felt the need for surgery was \nbased on the MRI.  He was still hurting in his hip and below his knee but was feeling a \nlittle better in his neck and back.  (Tr. 15-17) \n\nJENKINS – H207527 \n \n5 \n \n The  claimant  was  off  work  for  the  first  week  or  two.  He  was  then  placed \non light-duty and limited to a lift of ten (10)  to fifteen (15) pounds.  He was unable to work \nand thought he was off work for thirty (30) days.  The following questioning then occurred: \n(Tr. 18) \nQ:  Did you have any pain in your neck like the pain that you experienced after this \naccident?  Did you have anything before this accident? \n \nA:  Yes.  I had pain and I had headaches. \n \nQ:  So are you saying that as a result of the accident or prior to the accident, or \nbefore the accident? \n \nA:  Prior to the accident. \n \nQ:  And “prior” means “before”.  Before the accident did you have these x-rays? \n \nA:  No, I never had nothing.  (Tr. 19) \nUnder cross-examination, the claimant initially admitted that he had a few workers’ \ncompensation  claims  in  the  past,  about  four  (4).    He  was  then  asked  if  the  records \nprovided he had eight (8) claims and with that question, he responded that, “If it’s small \nthings, or it’s like going to the doctors, probably got cut or something fell on my foot yeah, \nprobably so.”  He admitted he had a previous right shoulder injury that was settled a few \nyears ago, about 2020, a rotator cuff tear, that was the result of a motor vehicle accident \nin  the  company  truck.  The  claimant  admitted  that  surgery  was  recommended  but  he \nnever received it, “cause I didn’t have the money and the insurance. I didn’t know who \nwas going to pay for it.”  In response to the settlement of the claim, the claimant stated, “I \nthink it was, if I ain’t mistaken like 24 or 22, something like that.”  The  claimant  also \nadmitted  he  had  settled  his  third-party  claim  that  was  involved  in  the  previous motor \nvehicle accident and that in his previous claim, he was sore in his right shoulder and right \n\nJENKINS – H207527 \n \n6 \n \nleg but denied neck or back pain. The claimant also admitted having a previous hearing \nback in 2013 with the Commission, which involved his right hand and wrist and was asked \nhow it turned out.  He responded, “Well, they said their outcome is -- I don’t know how the \noutcome came out on that.” (Tr. 20-23) \nThe  claimant  was also  questioned  about  the  motor  vehicle  accident  on  May  11, \n2022.  He stated that at the time of the accident he was going forty (40)  or forty-five (45), \nwhen the women pulled out in front of him.  He was later taken to UAMS by his employer \nand complained that his knee was swollen and he pointed to his right calf while testifying, \nbut admitted that he didn’t complain about his right shoulder.    The  claimant  was  then \nquestioned why the diagnosis on page one of his exhibit stated, “Right shoulder strain.”  \nThe claimant admitted that he was pointing behind his shoulder, kind of onto his back.  \nThe claimant disagreed with the report providing for a right shoulder strain.  The claimant \nwas also questioned about going to the ER in 2020 in regard to right shoulder pain and \nresponded that he could not remember what happened in regard to the visit in 2020.  The \nclaimant was specifically asked about the report referring to right shoulder strain and a \nstrain of his calf muscle and the claimant responded, “what do you mean, down there” \nand asked, “That’s when I went to the hospital.”  He stated, “Well, that would be my right \nlower leg right here (indicating).  It’s not toward my knee, it’s right below my knee....”  and \nthen  admitted  he  was  talking  about  the  back  of  his  leg.  The  claimant  was  also \ncross-examined about the report providing for, “No back pain.”  He responded, “I did have \nback pain. I was hurting,” and went on to state that he did tell the ER doctors about his \nback pain.  The claimant stated the reason the back pain was not mentioned in the report \nwas, “Because they didn’t treat me the way they was supposed to.”  (Tr. 26-29)  “At the \n\nJENKINS – H207527 \n \n7 \n \ntime they didn’t do any extra checking on me because it was at the ER.”   The claimant \nstated that his lower neck below his head, his lower back, and his hip were part of this \nclaim  and  that  his  claim  for  his  right  leg  was  related  to  either  his  back  or  hip \ninjury. (Tr. 30-31) \nThe claimant further testified his “injury lawyer” sent him somewhere else to be \nchecked out besides UAMS.  He agreed his right arm from his shoulder to his hand was \nnot part of the claim. The claimant then referred to his upper back, low back, hip, and the \ncalf of his leg.  He also stated he thought that he had blacked out for a minute at the time \nof the accident but admitted that his brain was not part of the claim. The claimant went on \nto state, “I mean I didn’t have loss of memories, like I was confused and I was – what do \nyou call it? – traumatized from the wreck.” (Tr. 32-34)  Upon further questioning, he stated \nhe was talking about the area between his shoulder and his neck, but again denied that \nthe  report  was  correct  where  it  provided  he  denied  neck  pain.  (Tr.  35)    Under  further \nquestioning, the claimant stated that he  returned to the ER on the 14\nth\n, because his back \npain was “worser” and he again thought the report was not accurate. (Tr. 37) \nThe claimant thought he was off work like two (2) weeks or more, but stated that \nhis records for being off work were at home and he did not bring them. (Tr. 38-39)  He \nwas  also  questioned  about  additional  body  parts  being  involved  and  named  after  his \nsecond ER visit and after obtaining the services of the attorney in regard to the third-party \nclaim.  He responded that at the ER, “they don’t have time to sit there and check you fully \nout.”  “At that time there was no insurance, no show insurance - -“ (Tr. 41)  The claimant \nalso believed that his Flex Worx bill was paid by his injury lawyer, but then stated that he \nthought it was paid by the woman who was driving the other car’s insurance. (Tr. 42)   \n\nJENKINS – H207527 \n \n8 \n \nThe claimant felt he had missed all of his days of work between the accident on \nMay 11 and May 25, the date he went to the Flex Worx provider.  He was also questioned \nabout the Flex Worx report of May 25, 2022, which provided he reported missing four (4) \ndays  off  work.  The  claimant  stated  he  didn’t go to Flex Worx until, “way after that.” \n(Tr.44)   He  admitted going  in  to  work  light-duty  and  being  paid.  (Tr.45)    He  would  just \nsweep the floor, pick up stuff, and drive people around. (Tr.46) \nThe claimant went on to state that he felt that Flex Worx  checked him out better \nthan the ER.  His right shoulder was not hurt, “it’s just my lower, my high up.  I don’t know \nwhat they call it right down there.” (Tr.47)  The claimant also agreed with their assessment \nof an acute right lower extremity strain and contusion, acute right hip strain and contusion, \nacute  right  lower  extremity  numbness  and  tingling,  acute  right  shoulder  sprain  with \nexacerbation of a pre-existing injury.  In regard to his right shoulder, the claimant stated \nthat, “Right shoulder does not hurt, it’s just my lower, my high up.  I don’t know what they \ncall it down there.”  He also agreed that he continued working with restrictions. (Tr.48)  \nHe  was  also  questioned about  returning  on June  14\nth\n,  and  the  report  provided  that  his \nheadache  had  resolved  and  he  responded  that  his  headache  had  not resolved  at  that \ntime.  He agreed his pain was mostly in his hip at that time.  He also disagreed with the \nreport providing there was no radicular pain from the cervical spine. (Tr.49-50) \nIn regard to Dr. Crosby, the claimant admitted Dr. Crosby reviewed the MRI of his \nlumbar  spine.  (Tr.52)    However,  the  claimant  also  disagreed  with  the  findings  of \narthropathy of the right hip by Dr. Crosby. (Tr.53)  He stated that his lawyer told him that, \n“These people are no good.  They’re not checking me thoroughly.”  He went on to say \nthat he did not like the way he was treated by Dr. Crosby, and he was sent there by his \n\nJENKINS – H207527 \n \n9 \n \nlawyer. (Tr.54)  At this point it was noted the claimant saw Dr. Reece at Pinnacle Spine.  \nThe  claimant  was  then  asked  about  July  27\nth\n,  when  he  had  stated  that  his  pain  had \nresolved in regard to his neck, right and left forearm, right shoulder, and right lower leg \nand his response was he did not remember. (Tr.55)  He admitted that he had not reviewed \nhis medical records. (Tr.56)  He did think that Dr. Hood was the hip guy.  He also admitted \nseeing  Ms.  Kay Lynn Brunt,  a physician’s  assistant,  and  that  he was  sent  there  by his \nattorney.  He also admitted that his attorney for the car wreck had sent him everywhere \nwith the exception of UAMS.  (Tr.57)  In regard to the claimant mentioning knee pain for \nthe first time when he saw Ms. Brunt, his response was, “Cause I didn’t know what was \nhurting was my knee right here or most of my pain was burnt from my back almost down \nto my knee.” (Tr.59) \nHe  admitted  that  he  was  still  working  for  Fence  World,  the  accident  happened \nabout a year ago, and he had worked there since then, although he was unable to perform \nhis normal job. (Tr.65-66)  The claimant also stated that he was sixty (60) years old at the \ntime of the hearing. (Tr.68) \nOn re-direct, the claimant stated he hit the woman’s Bronco on the back left quarter \npanel on the driver’s side.  He eventually went to the ER on May 11, and returned on May \n14, with complaints of back pain.  After that, he treated with Flex Worx beginning on May \n25\nth, \nwhere  he  complained  of  neck  pain.    He  also  had  an  MRI  with  Millenium  MRI  that \nshowed cervical spine disc bulges.  The claimant also admitted that he got flustered when \nunder  pressure  and  would  not  dispute  any  MRI  that  showed  injuries.  (Tr.68-70))    The \nclaimant also agreed he had stated in his deposition at line 4, page 18, that he had missed \nwork for a week or more.  He also agreed there were other days missed. (Tr.71)  It was \n\nJENKINS – H207527 \n \n10 \n \nalso  the  claimant’s  understanding  that  his  workers’  compensation  claim  was  denied. \n(Tr.72)  The claimant was waiting for the third-party claim to resolve and had no health \ninsurance. (Tr.73) \nOn  re-cross,  the  claimant  admitted  that  he  had  no documentation  regarding  the \ndays  that  he  was  off. (Tr.75)    On  re-direct,  the  claimant  stated  he thought that he had \nbeen off of work for a month. (Tr.76)     \n The  claimant  submitted  a  packet  of  medical  reports  consisting of  one  hundred \nsixty-four (164) pages, that was admitted into the record without objection.  The records \nprovided that  the claimant was initially taken to the UAMS ER  on the day of the  motor \nvehicle accident.  The report provided for a history of acute bursitis of the right shoulder \nwith chronic shoulder pain and exertional dyspnea, plus a previous finding of acute otitis \nmedia.  The report also provided for right shoulder strain acute, along with strain of the \nright  calf  muscle,  and  a  diagram  provided  for  tenderness  over  the  area  of  the right \nshoulder blade and the trapezius muscle.  The report also provided there was full range \nof passive motion without pain and with no tenderness.  There was swelling of the right \nlower  leg  with  no  tenderness.    An  x-ray  of  the  shoulder  was  taken.    A  finding  of right \nshoulder  strain  and  strain  of  the  right  calf  muscle  was  made  and  the  claimant  was \nprescribed baclofen, ibuprofen, and cyclobenzaprine and discharged home.  The treating \nphysician was Dr. Brian Hohertz, Associate Professor of Emergency Medicine.  An x-ray \nof the tibia/fibula provided there was no fracture, with no soft tissue abnormality seen.  An \nx-ray   of   the   right   shoulder   provided   for   moderately   advanced   acromioclavicular \nosteoarthritis.  This  report  provided  that  the  claimant  was  traveling  at  approximately \nthirty-five (35) mph at the time of the accident.  (Cl. Ex. 1, PP. 1-23)  The claimant again \n\nJENKINS – H207527 \n \n11 \n \nreturned to the UAMS ER on May 14, 2022, with the complaint of acute midline back pain \nwithout  sciatica.  The  claimant provided  that  his airbags  deployed but  denied  a  loss  of \nconsciousness.  He also provided he had severe lower back pain that had been slowly \nworsening.  He denied any weakness or numbness and was diagnosed with acute midline \nlow  back  pain  without  sciatica.    His  cervical  back  had  a  normal  range  of  motion  with \ntenderness of the lumbar back.  A CT was ordered.  The CT provided there was no acute \nfracture  or  traumatic  malalignment  of  the  lumbar  spine  with  lumbar  spondylosis most \nprominent  at  the  L4-5  level  with  a  mild  diffuse  disc  bulge  and  ligamentum  flavum \nthickening  causing  mild  spinal  canal  stenosis  with  mild  neural  foraminal  narrowing. \n(Cl. Ex. 1, PP. 24-37) \n At  this  point,  the  claimant  stopped  treatment  with  UAMS  and  presented  to  Flex \nWorx, on May 25, 2022.  The claimant presented with headaches, neck pain, low back \npain, right forearm pain, left forearm abrasion, right shoulder pain, right lower leg pain, \nand right lower extremity numbness and tingling.  The report provided the claimant was \nin a motor vehicle accident and had previously been recommended  for a right shoulder \nrepair, which was not undertaken.  The report provided the claimant contended he was \nsuffering headaches with pain five (5) out of ten (10);  neck pain five (5) out of ten (10); \nlow back pain seven (7) out of ten (10); right shoulder pain four (4) out of ten (10); right \nforearm pain four (4) out of ten (10); left forearm abrasion zero (0) out of ten (10); right \nhip pain seven (7) out of ten (10); right lower leg pain two (2) out of ten (10); and right \nlower  leg  numbness  and  tingling.    His  pain  prior  to  the  May  11,  2022,  motor  vehicle \naccident  was  two  (2)  out of  ten  (10).    The  claimant  was  diagnosed  with  acute  cervical \nsprain with acute headache secondary to the sprain, acute lumbar sprain, acute trapezius \n\nJENKINS – H207527 \n \n12 \n \nstrain, right forearm strain, right lower extremity strain and contusion, right lower extremity \nnumbness  and  tingling,  and  acute  right  shoulder  sprain  with  an  exacerbation  of  a \npreviously existing injury.  It was recommended that the claimant work with restrictions. \n(Cl. Ex. 1, PP. 38-41)  An x-ray dated May 31, 2022,  of the cervical spine provided that \nthere were no fractures or dislocations.  There were some degenerative changes of the \npelvis and there were no fractures or dislocations involving the right hip. (Cl. Ex. 1, P.42) \n The claimant returned to Flex Worx on June 14, 2022, and the report provided that \nthe  acute  cervical  spine  strain  had  mild  improvement,  that  the  acute  headaches  had \nresolved, the acute lumbar sprain, trapezius sprain and right lower extremity strain all had \nmild improvement with mild improvement of the right hip pain.  An MRI of the lower back \nwas recommended.  It was also recommended that the claimant work with restrictions. \n(Cl. Ex. 1, PP. 43-45) \n An MRI dated June 30, 2022, of the lumbar spine, was performed at the Imaging \nGroup of the Mid-South and was apparently read by Alex Cleveland, NP.  It provided that \nthe claimant had a mild disc bulge at L2-3, and L3-4.  (Cl. Ex. 1, PP. 46-47)  The claimant \nreturned  to  Flex  Worx  on  July  8,  2022,  and  the  report  provided  for  tenderness  of the \nlumbar spine along with tenderness to palpitation of the right hip. The report provided that \nthe claimant could work without restrictions. (Cl. Ex. 1, PP. 48-50)  The claimant returned \nto Flex Worx on July 27, 2022, and the report provided the claimant should continue work \nwith no restrictions. (Cl. Ex. 1. PP. 52-54) \n On August 22, 2022, the claimant made an initial visit to Mt. Moriah Orthopedics, \nand visit notes dated September 1, 2022, provided  the claimant was seen for neck and \ncervical  pain,  along  with  hip  pain.    The  report  provided  that  the  cervical  spine  and \n\nJENKINS – H207527 \n \n13 \n \nlumbosacral spine range of motion was severely limited. (Cl. Ex. 1, PP. 55-65)  An MRI \nof  the  cervical  spine  dated  September  15,  2022,  provided  there  was  a  posterior  disk \nherniation  in  the  midline  causing  mild  cord  compression  at  C2-3,  broad  based disk \nherniation due to uncovertebral joint hypertension, which caused mild cord compression, \nand  also a posterior disk  herniation in the midline causing mild cord compression.   At \nC5-6, there was a left foraminal herniation causing moderate narrowing of the left neural \nforamen, and at C6-7 there was a left central /subarticular foraminal herniation with mild \ncord compression. (Cl. Ex.1, PP. 66-67)  An MRI of the right knee also dated September \n15, 2022, provided for a grade 3 oblique tear involving the under surface of the posterior \nhorn  of  the  medial  meniscus  and  also  provided  for  a  horizontal  tear  involving  the \nundersurface of the anterior horn of the medial meniscus. (Cl. Ex. 1, P. 68)   An MRI of \nthe right hip on the same date provided the right hip was normal.  (Cl. Ex. 1, P. 69)  There \nwas  a  follow-up  with  Kay  Lynn  Brunt,  PA-C,  also  on  September  15,  2022.  The  report \nprovided  that  non-operative  treatment  of  neck  pain,  cervical  radiculitis,  facet  joint \nsyndrome, and lumbar herniated disc pain was effective in most cases.  In regard to low \nback pain, the importance of strong low back and stomach muscles were stressed.  The \nreport  also  provided  that  many  patients  can  be  successfully  treated  with  conservative \ninterventions for hip and knee pain. (Cl. Ex. 1, PP. 70-78)   \nThe  claimant  was  seen  by  Dr.  Brian  Reece  on  October  6,  2022,  for  an \nepidural cervical  steroid  injection  based  upon  a  diagnosis  of  a  herniated  disc  and  \ncervical radiculopathy.   An  epidural  lumbosacral  injection  was  also  provided.  (Cl. Ex. \n1, PP. 79- 89)  The claimant returned on October 20, 2022, and later on November 16, \n2022, for follow-ups and was seen by Kay Lynn Brunt, PA -C. (Cl. Ex. 1, PP. 90-110) \n\nJENKINS – H207527 \n \n14 \n \nOn  November  18,  2022, the claimant received bilateral cervical rhizotomies at \nC3-C7 and bilateral lumbar rhizotomies at L3-S1, performed by Dr Brian Reece. (Cl. Ex. \n1, PP. 111-112)  The claimant then presented for a follow-up with Kay Lynn Brunt, PA-C, \non December 1, 2022.  Her report provided that the neck pain with radicular symptoms \nwas resolving but the right hip pain and low back pain continued.  The right knee pain \nwas minimally improved.  (Cl. Ex. 1, PP. 113-122)  The claimant also received physical \ntherapy  from  May  31,  2022,  through  August  29,  2022.    The  reports  provided  that  the \nclaimant attended all prescribed treatments but did not meet his goals and was referred \nto a neurosurgeon “per M.D.” (Cl. Ex. 1, PP. 123-148) \nFinally, a copy of the motor vehicle crash report regarding the accident of May 11, \n2022, was provided.  It basically confirmed the claimant’s description of the accident and \nthat the other driver pulled out in front of him. The impact was sufficient to require both \nvehicles to be towed from the scene with the claimant’s vehicle airbags being deployed. \nThe claimant complained of chest pain due to the airbag deployment and stated he would \nseek his own medical care. (Cl. Ex. 1, PP. 149-161) \nThe respondents also introduced a previous Opinion issued involving a workers’ \ncompensation claim of the claimant dated February 5, 2013.  The Opinion was admitted \nover  the  objection  of  the  claimant.    The  claimant  contended  that  he  had  suffered  a \ncompensable injury to his right wrist and the Opinion found the claimant failed to prove \nhis  right  wrist  injury  arose  out  of  and  in  the  course  of  his  employment  based  upon  a \nnumber of factors. (Resp. Ex. 1) \nThe  respondents  also  submitted  the  deposition  taken  on  April  27,  2023,  of  the \nclaimant, which was admitted without objection.  The claimant admitted to a prior workers \n\nJENKINS – H207527 \n \n15 \n \ncompensation claim while working for Fence World.  He stated he injured his shoulder at \nthe time of a previous accident and the case was settled for either 22 or 42 and that he \nhad gotten over the shoulder problem.  He testified that the shoulder hurts every now and \nthen  and  he  had  taken  medication  for  it.  (Resp.  Ex  2,  PP.  3–5)  He  admitted  to  four \nworkers’ compensation claims while working for Fence World. (Resp. Ex. 2, PP. 7-8)  He \nagreed he had never had surgery in regard to his shoulder, that he had some permanent \ndamage, was restricted to lifting five or ten pounds, but the restriction was no longer in \nplace. (Resp. Ex 2, P. 9)  When asked if he was picked up by the ambulance, the claimant \nresponded, “No.  The guy in the office, he was our secretary.”  He also thought that he \nwas going about forty-five (45) MPH at the time of the accident. (Resp. Ex 2, PP. 13-14)  \nHis right leg was hurting after the accident, his “gas pedal leg.”  He was checked \nout after the accident and thought that he was out of work for a week.  He then returned \nto  work  and  could  not  perform  his  regular  duties  and  consequently  worked  light-duty. \n(Resp. Ex. 2, PP. 15-17)  At the time of the deposition, the claimant stated he had injured \nhis right leg, low back, and neck, but that his right shoulder was not affected. (Resp. Ex. \n2, P. 20)  He was sent to the doctor in Memphis by his attorney Blake.  He also stated \nsurgery was not recommended. (Resp. Ex. 2, P. 21)  At the time of his deposition, the \nclaimant stated he was no longer going to the doctor because of the treatment he had \nreceived for his back and neck made him feel a lot better.  His knee just gives him a little \nbit of problems now and then.  The claimant also stated he did not have group insurance \nand he guessed his medical treatment had been paid by Blake, the attorney. (Resp. Ex. \n2, P. 23)       \nDISCUSSION AND ADJUDICATION OF ISSUES \n\nJENKINS – H207527 \n \n16 \n \nThe claimant objected to the admission of an Opinion issued regarding one of his \nprevious workers’ compensation claims.   It is well known that the Commission is given \nbroad  discretion  in  the  admission  of  evidence  and  shall  use  a  liberal  interpretation  in \nregard  to  the  admission  of  evidence,  conducting  the  hearing  in  a  manner  as  will  best \nascertain the rights of the parties. Ark. Code Ann. § 11-9-705(a).  In the present matter \nthe  claimant  was  questioned  and admitted to multiple previous workers’ compensation \nclaims  with  no  objection.    The  Opinion  involved  one  of  the  previous  claims and \nconsequently, was admitted and given the appropriate weight.   \nRegarding the primary issue of compensability of the injury, the claimant has the \nburden   of  proving,   by   a   preponderance  of   the   evidence,   that   he   is   entitled   to \ncompensation benefits for the injury under the Arkansas workers’ compensation law.  In \ndetermining  whether  the  claimant  has  sustained  his  burden  of  proof,  the  Commission \nshall weigh the evidence impartially, without giving the benefit of the doubt to either party.  \nArk. Code Ann. §11-9-704.  Wade v. Mr. Cavananugh’s, 298 Ark. 364, 768 S.W. 2d 521 \n(1989).  Further, the Commission has the duty to translate evidence on all issues before \nit into findings of fact.  Weldon v. Pierce Brothers Construction Co., 54 Ark. App. 344, 925 \nS.W.2d 179 (1996). \nThere is no disagreement that the claimant was involved in a work-related motor \nvehicle accident on May 11, 2022.   The unrebutted evidence provided that the claimant \nwas driving to the next work site at an estimated thirty-five (35)  to forty-five (45) miles per \nhour, when a women pulled out in front of him and a collision occurred.  The impact of the \nvehicles  was  sufficient  to  deploy claimant’s front airbags and damage both vehicles \nsufficiently to require a tow from the accident scene.  The claimant was not taken to UAMS \n\nJENKINS – H207527 \n \n17 \n \nby ambulance immediately but was later taken to the ER and dropped off after going to \nthe office.  A person who apparently was the secretary of the company, per the claimant’s \ntestimony, appeared at the accident scene with the motor vehicle insurance papers and \npicked the claimant up after he was extricated from the work vehicle that he was driving.   \nFrom  this  point,  the  testimony  of  the  claimant  and  the  medical  reports  become \nsomewhat confusing.  The initial visit to the UAMS ER on May 11, 2022, provided that the \nclaimant suffered from a right shoulder strain and the x-ray of the shoulder provided that \nthe  claimant  suffered  from moderately advanced  acromioclavicular osteoarthritis  of the \nshoulder.  The report provided that the claimant was traveling at approximately 35 mph \nat the time of the accident and in addition provided for a calf muscle strain.  The x-ray of \nthe  tibia/fibula  provided  there  was  no  fracture and  no  soft  tissue  abnormality.    The \nclaimant returned to the UAMS ER on May 14, 2022, with a complaint of acute midline \nback pain without sciatica.  His cervical back was found to have a normal range of motion \nwith tenderness in the lumbar area.  A CT was ordered which provided there was no acute \nfracture  or  traumatic  malalignment  of  the  lumbar  spine  with  lumbar  spondylosis most \nprominent  at  the  L4-5  level,  with  a  mild  diffuse  disc  bulge  and  ligamentum  flavum \nthickening causing mild spinal canal stenosis with mild foraminal narrowing.  The claimant \ntestified  he  had  retained  an  attorney  (Blake)  at  this  point  to  represent  him  in  his third- \nparty claim, and he consequently never returned to UAMS because his attorney for the \nthird-party claim sent him elsewhere for treatment. \n The claimant’s next medical record was with Flex Worx on May 25, 2022, two (2) \nweeks post-accident and provided that the accident exacerbated the claimant’s previous \nproblems.  Another x-ray of the cervical spine on May 31, 2022, provided for no fractures \n\nJENKINS – H207527 \n \n18 \n \nor dislocations.  An x-ray of the hip showed degenerative changes of the pelvis with no \nfractures or dislocations.  The claimant continued to treat with Flex Worx and received an \nMRI of the lumbar spine, which was read by Alex Cleveland, NP, on June 30, 2022.  It \nprovided for a mild disc bulge at L2-3, and L3-4.  Flex Worx provided that the claimant \ncould return to work with no restrictions on July 27, 2022. \nApproximately  three  (3)  months  after  the  motor  vehicle  accident  on  August  22, \n2022, the claimant received a MRI of the cervical spine which provided for disc herniations \nin regard to C2-3 and C5-6.  An MRI of the right hip on the same date provided that the \nhip was normal.   \nThe claimant contended that the motor vehicle accident injured his lower back, hip, \nneck, and the lower part of his right leg and there was an issue with his right shoulder.  \nThese  complaints  varied  somewhat  over  time.    He  also  testified  that  he  felt  that the \ntreatment he received at the UAMS ER was not thorough and that he felt that Dr. Crosby \nwho reviewed the MRI of his lumbar spine did not treat him well.  He testified that he had \nbeen involved in four workers’ compensation claims in his deposition and admitted to 8 \nprevious claims in his testimony at  the hearing.  He clearly had more than an average \namount of knowledge in regard to a workers’ compensation claim.   \nUnder workers’ compensation law in Arkansas, a  compensable  injury  must  be \nestablished  by medical  evidence  supported by  objective  findings  and  medical opinions \naddressing  compensability and  must  be  stated  within  a  degree  of  medical  certainty. \nSmith-Blair,  Inc.  v.  Jones,  77  Ark.  App.  273,  72  S.W.3d  560  (2002).    Speculation  and \nconjecture cannot substitute for credible evidence.  Liaromatis v. Baxter County Regional \nHospital,  95  Ark.  App.  296,  236  S.W.3d  524  (2006).    More  specifically,  to  prove  a \n\nJENKINS – H207527 \n \n19 \n \ncompensable injury, the claimant must establish, by a preponderance of the evidence: (1) \nan injury arising out of and in the course of employment; (2) that the injury caused internal \nor external harm to the body which required medical services or resulted in disability or \ndeath; (3) medical evidence supported by objective findings, as defined in Ark. Code Ann. \n§11-9-102  (16)  establishing  the  injury  and  (4)  that  the  injury  was  caused  by  a  specific \nincident and identifiable by time and place of occurrence.  If the claimant fails to establish \nany of the requirements for establishing the compensability of the claim, compensation \nmust be denied.  Mikel v. Engineered Specialty Plastics, 56 Ark. App. 126, 938 s.W.2d \n876 (1997). \nObjective findings are those findings that cannot come under the voluntary control \nof the patient. Ark. Code Ann §11-9-102(16).  It is also important to note that the claimant’s \ntestimony is never considered uncontroverted.  Lambert v. Gerber Products Co.  14 Ark. \nApp. 88, 684 S.W.2d 842 (1985).  \nHere  the  medical  records  in  regard  to  the  claimed  injuries  make  no  objective \nfindings in regard to the claimant’s problems being caused by the accident.  The claimant \nclearly was suffering from bursitis and osteoarthritis of varying degrees.  The MRI of the \nhip in August showed that the hip was normal.  The MRI of the cervical spine provided \nthere were disc herniations, but there was no opinion provided as to the cause.  An MRI \nof the right knee also in September provided for a tear of the meniscus, but again provided \nno opinion as to the cause of the tear.  There was an approximate three (3) month gap \nbetween the cervical and knee MRIs and the date of the motor vehicle accident.  The CT \nof the back shortly after the motor vehicle accident taken at UAMS provided for no acute \nfracture  or  traumatic  malalignment  of  the  lumbar  spine  with  lumbar  spondylosis  with  a \n\nJENKINS – H207527 \n \n20 \n \nmild  diffuse  disc  bulge  and  ligamentum  flavum  thickening  causing  mild  canal stenosis \nwith mild foraminal narrowing, a finding not related to the accident.  Here, the claimant’s \ntestimony  is  the  primary  evidence  that  connects  all  the  claimed  injuries  to  the  motor \nvehicle accident.  Consequently, the claimant has failed to satisfy the required burden of \nproof regarding all of these claimed injuries.  See,  Luster v. Ben E. Keith Co., 2012 Ark. \nApp.  197  (2012)   “Objective findings” are based on observable criteria perceived by \nsomeone other than the claimant.  Continental Exp., Inc. v. Freeman, 66 Ark. App. 102, \n989 s.W.2d 538 (1999).   \nIn regard to claimant’s first visit to the UAMS ER on May 11, 2022, the unrebutted \ntestimony  is  that  an  employee  from  the  company  appeared  with  the  insurance papers \nregarding  the  vehicle  in  the  accident.    In  addition,  the  same  employee picked  up  the \nemployee from the scene and returned him to the office.  Later on the day of the accident \nthe claimant was taken to the ER by what appears to be someone from work and dropped \noff.      An    employer    is    generally    only    responsible  for  medical  expenses  when  an \nemployee is  determined  to  have  suffered  a  compensable  injury.  See, Ark. Code Ann. \n§11-9-102(5)(F)(i).  However,  in  the  case  at  hand,  the  respondent  dropped  off  the \nclaimant  at  the  UAMS  ER  on  May  11, 2022,  sometime after  the accident  on  the  same \ndate.  The respondent was clearly aware of the facts of the accident, the claimant would \nhave clearly believed he was entitled to treatment after the accident after turning down \nan ambulance but later being dropped off at the ER.  The claimant was unknowledgeable \nof the true facts regarding the injury at the time he entered the ER and would have relied \non the actions of the respondent.  See, Snow v. Alcoa, 15 Ark. App. 205, 691 S.W.2d 194 \n(1985)  Consequently the initial UAMS ER visit is found to be authorized as the claimant \n\nJENKINS – H207527 \n \n21 \n \nwas taken to the emergency room to be evaluated.  See, Britain v. Southern Hospitalities, \n54 Ark. App. 318, 925 S.W.2d 810 (1996).  Respondents are found to be estopped from \ndenying the responsibility of the initial employer-directed visit to the ER, notwithstanding \nthe fact that the injury was not found to be compensable.   The Arkansas Compensation \nAct  provides  that  an  employer  shall  promptly  provide  for  an  injured  employee  such \nmedical treatment as may be reasonably necessary in connection with the injury received \nby the employee.  Ark. Code Ann. §11-9-508(a).  However, the second visit to UAMS ER \nis found to not be the employer’s responsibility pursuant to Arkansas la w.    \nIn  addition,  it  is  again  noted  that  there  are  no  objective  findings  in   regard \nto the injury   to  the  right  lower  leg,  except  for  swelling,  and  no  finding  as  to  the  \ncause    of    the  swelling.    A   workers’   compensation    claimant    bears    the    burden    of  \nproving  the compensable  injury,  by  a  preponderance  of  the  evidence.  Ark. Code \nAnn. §11-9-102(4) (E)(i).  A compensable injury is one that was the result of an accident \nthat  arose  in  the  course  of  his  employment  and  that  grew  out  of  or  resulted  from  the \nemployment.  See, Moore v. Darling Store Fixtures, 22 Ar. App 21, 732 S.W.2d 496 (1987)   \nBased upon the available evidence in the case at bar, there is no alternative but to find \nthat the claimant has failed to satisfy the required burden of proof to show he suffered a \nwork-related injury consisting of a strain and work-related injuries  to his right lower leg \nand knee.  In addition, based upon the available evidence in the case at bar, there is no \nalternative but to find that the claimant has failed to satisfy the required burden of proof \nas to the additional claimed injuries to various body parts.   \nIn  regard  to  temporary  total  disability  (TTD),  the  claimant  contended  at  various \ntimes that he had missed a variety of days from work.  He stated that he had records but \n\nJENKINS – H207527 \n \n22 \n \nthat he had failed to bring them.  He also testified that he had worked light-duty, sweeping \nfloors,  and  driving  people  around.  Temporary  total  disability  is  that  period  within  the \nhealing period in which an employee suffers a total incapacity to earn wages.  Arkansas \nState  Highway  and  Transportation  Department  v.  Breshears,  72  Ark.  App.  244,  613 \nS.W.2d  392)    The  claimant  bears  the  burden  of  proving  he  remains  within  his  healing \nperiod and in addition, suffers a total incapacity to earn pre-injury wages in the same or \nother employment. Palazzo v. Nelms, 46 Ark. App. 130, 877 S.W.2d 938 (1994)  There \nare  no  medical  records  providing  that  the  claimant  should  have been  off  of  work  for  a \nspecific period of time.  It is noted that persistent pain is not sufficient in itself to extend \nthe healing period or to find the claimant totally incapacitated from earning wages. See, \nMad  Butcher  v.  Parker,  4  Ark.  App.  124,  628  S.W.2d  582  (1982).  Temporary  total \ndisability  can  not be  based  upon  speculation  or  conjecture.   Consequently,  there  is  no \nalternative but to find that the claimant has failed to satisfy the required burden of proof \nthat he is entitled to temporary total disability. \nAfter weighing the evidence impartially, without giving the benefit of the doubt to \neither party, it is found that the respondents are found to be estopped from denying the \nresponsibility for the initial employer-directed visit to the UAMS ER, notwithstanding the \nfact that the injury was not found to be compensable  The respondents are found to not \nbe  responsible  for  the  second  UAMS  ER  visit.  In  addition,  the  claimant  has  failed  to \nsatisfy the required burden of proof that his claim for an injury which constituted a strain \nto his right lower leg and additional injuries to the right leg and knee are compensable.  \nThe claimant has also failed to satisfy the required burden of proof that his claims for all \nremaining  injuries  are compensable.    Consequently,  the  question of  medical  treatment \n\nJENKINS – H207527 \n \n23 \n \nfor  all  these  claimed  injuries  and  for  attorney  fees  are  moot,  with  the  exception  of  the \nmedical treatment involved in the initial ER visit.  The claimant has also failed to satisfy \nthe required burden of proof for TTD.   If not already paid, the respondents are ordered \nto pay the cost of the transcript forthwith. \nIT IS SO ORDERED. \n  \n \n \n       ___________________________ \n      JAMES D. KENNEDY \n      Administrative Law Judge","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H207527 MICHAEL KEVIN JENKINS, EMPLOYEE CLAIMANT VS. FENCE WORLD INC., EMPLOYER RESPONDENT BRIDGEFIELD CASUALTY INSURANCE COMPANY/ CARRIER/SUMMIT CONSUSTING, LLC, TPA RESPONDENT OPINION FILED JULY 11, 2023 Hearing before Administrative Law Judge, James D. K...","fetched_at":"2026-05-19T23:05:10.403Z","links":{"html":"/opinions/alj-H207527-2023-07-11","pdf":"https://labor.arkansas.gov/wp-content/uploads//JENKINS_MICHAEL_H207527_20230711.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}