{"id":"alj-H207895-2023-10-11","awcc_number":"H207895","decision_date":"2023-10-11","opinion_type":"alj","claimant_name":"Carolyn Mosley","employer_name":"Best Beverage Of West Memphis LLC","title":"MOSLEY VS. BEST BEVERAGE OF WEST MEMPHIS LLC AWCC# H207895 OCTOBER 11, 2023","outcome":"denied","outcome_keywords":["dismissed:1","denied:2"],"injury_keywords":["back"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/Mosley_Carolyn_H207895_20231011.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Mosley_Carolyn_H207895_20231011.pdf","text_length":33271,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H207895 \n \n \nCAROLYN JEAN MOSLEY, EMPLOYEE CLAIMANT \n \nBEST BEVERAGE OF WEST MEMPHIS LLC, \n EMPLOYER RESPONDENT \n \nAUTO OWNERS INS. CO., \n CARRIER RESPONDENT \n \n \nOPINION FILED OCTOBER 11,  2023 \n \nHearing  before  Administrative  Law  Judge  O.  Milton  Fine  II  on  August  11,  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 August 11, 2023, the above-captioned claim was heard in Marion, Arkansas.  \nA  prehearing  conference  took place  on  April  10,  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, as amended, were properly set forth in the order. \nStipulations \n At the  hearing,  the  parties  discussed  the  stipulations  set  forth  in  Commission \nExhibit 1.  Following amendment at the hearing, they are the following, which I accept: \n 1. The  Arkansas  Workers’  Compensation  Commission  has  jurisdiction  over \nthis claim. \n\nMOSLEY – H207895 \n \n2 \n2. The employee/employer/carrier relationship existed on the alleged date of \ninjury, October 25, 2022, and at all other relevant times. \n3.  Respondents have controverted this claim in its entirety. \n4.  Claimant’s average weekly wage of $540.00\n1\n entitles her to compensation \nrates of $360.00/$270.00. \nIssues \n At the hearing, the parties discussed the issues set forth in “Commission Exhibit \n1.”  The following were litigated: \n1. Whether Claimant sustained a compensable injury to her left foot and left \nsmall toe by specific incident. \n2. Whether  Claimant  sustained a  compensable  consequence  in  the  form  of \ncellulitis. \n3. Whether   Claimant   is   entitled   to   reasonable   and   necessary   medical \ntreatment. \n4. Whether Claimant is entitled to temporary total disability benefits. \n All other issues have been reserved. \nContentions \n The respective contentions of the parties read as follows: \n \n \n1\nIt  bears  noting  that  this  stipulation  was  reached  by  the  parties  at  the  outset of \nthe hearing after Claimant rejected the offer of Respondents’ counsel to stipulate to an \naverage weekly wage of $580.00.  Even after it was explained to her that it would be to \nher benefit to agree to the higher amount, she declined, stating that she (having already \nbeen sworn) was “supposed to tell the truth under oath . . . .” \n\nMOSLEY – H207895 \n \n3 \n Claimant: \n1. Claimant  contends that  she  suffered  compensable  injuries  to  her  left  foot \nand small toe and that she is entitled to benefits therefor. \n Respondents: \n1.  This claim has been denied and controverted in its entirety. \n2. Claimant did not sustain a compensable left foot/small left toe injury while \nemployed by Respondent employer on or about October 25, 2021 [sic]\n2\n. \n3. Claimant  cannot  meet  her  burden  of  proving  her  left  foot/small  left  toe \ncondition  resulted  from  a  specific  incident  on  or  about  October  25,  2021 \n[sic]. \n4. Claimant  failed  to  timely  report  the  alleged  incident  on  October  25,  2021 \n[sic]. \n5. Claimant is not entitled to any benefits, as her need for medical treatment, \nif any, is unrelated to her employment for Respondent employer.  Instead, \nher physical problems and need for treatment, if any, are related to a pre-\nexisting  and/or  degenerative  condition  and  not  the  result  of  her  work  for \nRespondent employer. \n6. In  the  alternative,  if  it  is  determined  that  the  claimant  sustained  a \ncompensable injury to her left foot and/or left small toe as the result of the \nincident  on  October  25,  2021  [sic],  the  respondents  contend  that  she \n \n \n2\nAs reflected in Stipulation No. 2, supra, the alleged date of injury is on or about \nOctober 25, 2022. \n\nMOSLEY – H207895 \n \n4 \nmerely sustained a temporary aggravation of her pre-existing condition for \nwhich she previously resumed her baseline condition. \n7. In  the  alternative,  if  it  is  determined  that   the  claimant  sustained  a \ncompensable injury and is entitled to any benefits, the respondents hereby \nrequest  a  setoff  for  all  benefits  paid  by  her  group  health  carrier,  and  all \nshort  and  long-term  disability  and/or  unemployment  benefits  received  by \nher. \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  the witnesses  and  to  observe  their  demeanor,  I hereby  make  the \nfollowing  findings  of  fact and  conclusions  of  law  in  accordance  with  Ark.  Code  Ann.  § \n11-9-704 (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 \nsustained a compensable injury to her left foot by specific incident. \n4. Claimant  has  not  proven  by  a  preponderance  of  the  evidence  that  she \nsustained a compensable injury to her left small toe by specific incident. \n5. Claimant  has  not  proven  by  a  preponderance  of  the  evidence  that she \nsustained a compensable consequence in the form of cellulitis. \n\nMOSLEY – H207895 \n \n5 \n6. Because of Findings of Fact/Conclusions of Law 3-5, supra, the remaining \nissues  in  this  matter—whether  Claimant  is  entitled  to  reasonable  and \nnecessary medical treatment of her alleged injuries and to temporary total \ndisability benefits—are moot and will not be addressed. \nADJUDICATION \nSummary of Evidence \n The witnesses\n3\n at the hearing were Claimant and Kendall Brawner. \n Along  with  the  Prehearing  Order  discussed  above,  the  exhibits  admitted  into \nevidence were Claimant’s Exhibit 1, a compilation of her medical records, consisting of \n68 numbered pages; Respondents’ Exhibit 1, another compilation of Claimant’s medical \nrecords,  consisting  of one  index  page  and  nine  numbered  pages  thereafter;  and \nRespondents’  Exhibit  2,  non-medical  records,  consisting  of  one  index  page  and  five \nnumbered pages thereafter. \nA. Compensability \n Introduction.  Claimant has alleged that she suffered compensable injuries to her \nleft  foot  and  small  toe  as  a  result  of  a  specific  incident  while  working  for  Respondent \nBest Beverage of West Memphis LLC (“Best Beverage”) on or about October 25, 2022.  \nRespondents dispute that she suffered a compensable injury of any type. \n \n \n3\nClaimant also sought to call Patricia Johnson as a witness.  Because Claimant \ndid  not  disclose  Johnson  as  a  potential  witness  to  Respondents  at  least  seven  days \nbefore  the  hearing,  per  the  Prehearing  Order,  I  sustained  their  objection  to  her \ntestifying.  However, I allowed Claimant to proffer said testimony. \n\nMOSLEY – H207895 \n \n6 \n Evidence.  Claimant is 59 years old and has obtained her graduate  equivalency \ndegree.    When  asked  when  she  began  working  for Best  Beverage,  she  responded:  \n“[m]aybe  in  March  .  .  .  [o]f  2022,  sir.”  The  company  distributes  alcoholic  beverages.  \nHer  job  throughout  her  tenure  there  was  in  what  she  termed “rework.”  She  described \nher duties as follows:  “Rework is to repair damaged products that came in . . . I would \nget  the  products  and  clean  them,  the  ones  that’s  not  damaged,  and  put  them  on  the \nshelf where we pack stuff.” \n Asked how she injured her toe and foot, Claimant related: \nIt  was  a  damaged  case  of 25-ounce,  you  know,  the  tall  cans  of  beer,  sir, \nand  it  had  been  damaged,  and  the—the  liquid  on  the  containers  of  the \nproducts  soaked  to  the  bottom  of  the  cardboard  box.    And  I  picked  it up \nproperly, and the rest of the cans that was filled broke through the bottom \nand  fell through  the bottom of  the damaged,  corroded  box,  you know, up \nunder—it  couldn’t  hold  the  weight  of  it  when  it—as  long  as  it  was  on  the \nfloor it was fine, but when I picked it up, the remains of the product broke \nthrough. \n \nAccording to Claimant, more than one full aluminum can struck her foot.  At the time this \noccurred, she was wearing sneakers. \n Claimant  stated  that  October  25,  2022,  was  not  the  date  when  this  happened.  \nInstead,  that  was  the  date  (as  corroborated  by  the  medical  records  in  evidence—see \nsupra)  that  her  supervisor,  Kendall  Brawner,  took  her  to  the  emergency  room.  It  was \nher testimony that he witnessed the incident in question.  He asked her if she was okay, \nand  she told him, yes, “because it really wasn’t nothing at that point.”  In any case, he \ndid not write an injury report about it.  Had he done so, according to her, the exact date \n\nMOSLEY – H207895 \n \n7 \nand  time  of  her  injury  could  be  known.  Claimant  has  no  recollection  concerning  what \ntime of day the cans struck her foot.  The following exchange took place: \nQ. And all I’m simply asking you, and again, I’m not asking you if you \nlooked at your watch right then and know the exact time, but do you \nremember  even  the  time  of  day?    Had  you  just  started  [at]  work?  \nWas it almost the end of the day? \n \nA. I  would  say  the  midway  of  the  day,  sir.    Maybe  after  lunch  or \nsomething like that. \n \nQ. Do you know that for a fact, or are you just guessing? \n \nA. No,  sir,  I  don’t  know  it  for  a  fact,  but  I  know  it  happened  that  day, \nyou know.  Just I know it—what happened, sir. \n \nQ. But you’re testifying— \n \nA. But it’s been a long time. \n \nQ. Well, you just now said you think it was midday.  Do you know at all \nor are you just guessing? \n \nA. Well, you put me in a situation.  I can’t remember this, sir. \n \nQ. Okay.  All right. \n \nA. And I’m being honest. \n \n She was not much better in narrowing down the date, first stating that “[i]t had to \nbe a few days or weeks before” the emergency room visit.  When asked by me whether, \nfor  example,  it  occurred  five  days  or  perhaps  three  weeks  prior  to  her  first medical \ntreatment, she initially seized on this and responded:  “I would say in between—I would \nsay five days.  Five days or maybe less.”  But then she acknowledged:  “I don’t know.”  \nReturning  to  the matter,  she  testified that  it would have  been  three  to  five  days  before \nthe trip to the October 25, 2022, trip to the emergency room.  When I informed her that I \n\nMOSLEY – H207895 \n \n8 \ncould  take  judicial  notice\n4\n  that  October  25,  2022,  fell  on  Tuesday,  and  asked  her  if, \nbased  on  her  timeline,  her  foot  and  toe  were  hurt  between  Wednesday,  October  19, \n2022, and Friday, October 21, 2022, she believed that was correct. \n Returning to the incident  at issue, Claimant testified that when she removed her \nleft shoe right after it occurred, all she saw was “a little bitty puncture . . . just like a little \nbruise” on her left small toe.  She related that following this examination, she resumed \nher duties.  Claimant worked the following day as well.  It was her admission that Best \nBeverage  has  a  policy  that  all  injuries,  no  matter  how  small,  should  be  reported \nimmediately. \n Questioned  concerning  what  happened  next,  she  stated  that “probably  a  few \ndays after this,” her toe “started tingling, you know, and kind of throbbing like, sir, like it \nwas—like it was on fire or something, you know, heat, and the worser [sic] I worked on \nit, the worser it got—to the point that I couldn’t work anymore.”  It was at this point that \nshe sought treatment.  Later, she elaborated that  the onset of her symptoms were two \nto three days before the emergency room visit.  The day of the visit, per Claimant, she \nperformed  her  regular  duties  at  work  until “it  started  really,  really,  to  the  point  that  I \ncouldn’t take it no more and I went to [Brawner].”  He did online research concerning her \nfoot  condition  and  thereafter  transported  her  to  the  emergency  room.  Claimant’s \ntestimony  was  that  her  medical  records  in  evidence  would  reflect  the  treatment  she \nreceived.    After  being  seen  in  the  emergency  room,  Claimant  was  referred  to  a \nphysician in Memphis.  He prescribed antibiotics. \n \n \n4\nSee Buxton v. City of Nashville, 132 Ark. 511, 201 S.W. 512 (1918). \n\nMOSLEY – H207895 \n \n9 \n The following exchange took place on cross-examination: \nQ. It [the emergency room record] says that you had toe pain for over \ntwo weeks.  Do you understand that, that that’s what your medical \nrecords said? \n \nA. Okay. \n \n. . . \n \nQ. And in that report it says that you denied hitting your foot or hitting \nyour toe to cause any pain? \n \nA. I  do  deny  it,  because I  didn’t hit  my feet.    It was  something  fell  on \nmy feet, sir. \n \n. . . \n \nQ. Ms. Mosley, I’m going to show you page 37 of your exhibit, which is \nfrom Baptist Hospital on October 25\nth\n of 2022. \n \nA. Yes, sir. \n \nQ. All right.  Do you see this? \n \nA. Uh-huh. \n \nQ. Yeah.  Is this your handwriting? \n \nA. Yes, sir, it is. \n \nQ. It is.  Okay.  I thought so.  There is a question on here and it says, \n“Did  you  injure  yourself  at  work?”  And  it’s  checkmarked, “No.”  \nThat’s your checkmark, correct? \n \nA. Okay.  But see— \n \nQ. Is that your checkmark, Ms. Mosley? \n \nA. That’s my checkmark. \n \n. . . \n \n\nMOSLEY – H207895 \n \n10 \nQ. You  went  to  the  hospital  the  following  day  at  St.  Francis,  is  that \ncorrect? \n \nA. Yes, sir. \n \nQ. All right.  And then in that St. Francis report as well, that’s page 1 of \nthe  Respondents’  No.  1  exhibit,  it  says  that,  again, “Patient  states \npain  had  been  occurring  for  approximately  two  weeks.”  Do  you \nunderstand that’s what your medical records report says? \n \nA. Yes, sir. \n \nQ. Okay.    And  then  on  page  4  of  my  exhibit  it  says, “Was  the  visit a \nresult  of  an  injury?”  And  it  indicates “No.”  That’s  page  4  of  my \nexhibit.  Do you understand that that’s the next day? \n \nA. Uh-huh. \n \nQ. Okay.    You  understand  that,  Ms.  Mosley,  that  there’s  no  medical \nrecord today that Judge Fine and the Commission are going to look \nat that shows any indication that you had any sort of injury at work.  \nYou understand that? \n \nA. That don’t mean it don’t happen, sir.  It happened. \n \nQ. Do  you  understand  that  there’s  no—there  is  nothing  in  any  of  the \nreports that says you got hurt at work.  You understand that? \n \nA. Yeah, I understand, but I don’t believe that. \n \n Asked about references in the medical records to her having a bunion on the toe \nin  question,  Claimant  admitted  that  she  had  this  condition  before  the  cans  fell  on  her \nfoot.    But  she  hastened  to  add:   “the  incident  caused  it  to  be  infected.    I  never  had  a \nproblem  with  this,  even  if  I  did  have  a  bunion  or  a  corn,  I  never  needed  [to]  go  to  the \nhospital.  It never got infected.  I swear, sir.”  She maintained that the cellulitis that she \ndeveloped was the result of the falling cans. \n\nMOSLEY – H207895 \n \n11 \n Claimant initially denied having another pre-existing condition in her left small toe \nin the form of nail fungus.  But shown that diagnosis in the records, she conceded this to \nbe the case.  She agreed that she underwent treatment on three dates, October 25 and \n26, 2022; and November  3, 2022.  Asked whether she had worn any footwear to work \nother than a sneaker following the alleged incident, Claimant answered in the negative, \nand specifically denied ever wearing a houseshoe. \n Called by Respondents, Brawner testified that he is the Operations Manager for \nRespondent  Best  Beverage.    At  the  time  of  the  alleged  incident,  he  was  Warehouse \nManager.    In  that  latter  capacity,  he  was  Claimant’s  supervisor.    He  stated  that \nClaimant’s start date with the company was actually August 1, 2022, approximately five \nmonths later than that represented in her testimony.  Also in contrast to her testimony, \nshe did not begin there in the rework area.  Per Brawner, she was hired to be an order-\npuller in the warehouse. \n The following exchange took place: \nQ. Now,  Ms.  Mosley  testified  that  somewhere  between  October  19\nth\n \nand  October 21\nst\n  she  had  an  incident  in  which  she  dropped  some \ncans on her foot, do you recall that testimony? \n \nA. Yes, sir. \n \nQ. You were here when she testified? \n \nA. Yes, sir. \n \nQ. Did you see this happen? \n \nA. No, sir. \n \nQ. Did you speak with her after it happened? \n\nMOSLEY – H207895 \n \n12 \n \nA. No, sir. \n \nQ. She  had  indicated  that  you  had  some  something  like, “Are  you \nokay?”  Did that ever happen? \n \nA. No, sir. \n \nQ. All  right.    Were  you  aware  of  any  sort  of  work  incident  happening \nbetween October 17\nth\n and October 19\nth\n, during that period of time? \n \nA. No, sir, not exactly, no. \n \nBrawner  confirmed  that  company  policy  is  that  all  injuries  on  the  job,  no  matter  how \ninsignificant,  must  be  reported  as  soon  as  possible.  Shown  page  3  of  Respondents’ \nExhibit 2, he confirmed that this is the policy, and that it had been provided to Claimant. \n It was Brawner’s testimony that he first became aware that something was wrong \nwith Claimant’s foot when he noticed that she had it wrapped in a grocery sack and was \nwearing a houseshoe on it.  He inquired about it, since this was a violation of company \npolicy,  and  was  informed  that  her  foot  was  bothering  her.    Approximately  one  week \nlater, he took her to the emergency room at Baptist Hospital in Memphis. \n Based  upon  his  above  answer  of “not  exactly,”  the  following  lengthy  exchange \ntook place under examination by the Commission: \nQ. What  were  you  aware  of  with  regard  to  this  lady’s  foot  during  the \nperiod of October 17 through 19\nth\n of last year? \n \nA. So  that  is  actually  when  we  found  her  in  the  warehouse  with  the \nthing wrapped around her foot.  That’s when she had told me that a \nweek or two prior to that she had dropped something on her foot. \n \nQ. Okay. \n \n\nMOSLEY – H207895 \n \n13 \nA. And then after a week of—after, you know, we told her about that, \nshe said that it was hurting.  She then worked the rest of the week, \nthat  Monday,  and  then  on  that  Tuesday  she  came  in  with  her \nhouseshoe on again and that’s when I took her to the hospital. \n \n. . . \n \nQ. So around October 17\nth\n through 19\nth\n— \n \nA. That was Wednesday. \n \nQ. —she  would  have  come  in  wearing  a  bag  on  her  foot  and  a \nhouseshoe. \n \nA. Yes, sir. \n \nQ. and that’s when she said she had dropped something on her foot in \nthe warehouse? \n \nA. Yes, sir, a couple weeks prior to that. \n \nQ. Well, you said several, but I thought you said earlier two weeks? \n \nA. One or two yes, sir, something like that. \n \nQ. Okay.  Now, you’ve testified, if I’m understanding you correctly now, \nthat  this—would  this  conversation  have  happened  somewhere \nbetween October 17\nth\n and 19\nth\n of last year? \n \nA. Yes, sir. \n \nQ. Okay.    Now,  did  I  understand  in  her  testimony,  which  you  were \npresent  for,  and  I  think  you’ve  confirmed  this  today,  that  you  took \nMs. Mosley to the ER on October 25\nth\n? \n \nA. Yes, sir. \n \nQ. Which would have been the following week? \n \nA. Yes, sir. \n \nQ. Okay.    What,  if  anything,  happened  between  the  time  you  were \naware  that  she  had  a  problem  with  her  foot  back  sometime \n\nMOSLEY – H207895 \n \n14 \nbetween the  17\nth\n  and  19\nth\n,  when  she—you  testified  she  was \nwearing a bag on her foot inside a houseshoe?  Between that time \nand the time you took her to the ER, what changed that led you to \ntake her to the ER? \n \nA. The  fact that  I  looked  on  the  internet  about  how  long  a  bruise \nshould be.  Like I just looked up how long a bruise typically sticks, \nand is it any time that a bruise sticks around longer than two weeks, \nthat  there  could  be  a  serious  underlying  situation.    And  I  told  her \nthat I felt like something might, you know, be wrong with your foot. \n \nQ. Okay.  Was it at your suggestion that y’all went to the ER or at her \nrequest? \n \nA. My suggestion. \n \nQ. All  right.    And  did  you  feel  like—were  you  aware  at  that  time  that \nshe, and I think you’ve said this but I want to understand this, were \nyou  aware  that  whatever  this  bruise  was,  that  it  was  due  to \nsomething that she had dropped on her foot at the warehouse? \n \nA. That’s what she had claimed it was. \n \nQ. All right.  Did you all fill out workers’ comp paperwork? \n \nA. No, sir. \n \nQ. Why not? \n \nA. Because  she  said  it  was  two  weeks  before  whenever  I  had  found \nher  in  the  wrapped-up  foot  with  the  grocery  bag.  She  said  it  was \ntwo weeks before— \n \nQ. Okay. \n \nA. —that something had happened to her. \n \nQ. Did she tell you what happened to her foot? \n \nA. She said she had dropped her case, yes, sir. \n \nQ. Okay.    Why  did  that  not  trigger  you  filling  out  workers’  com- \npensation paperwork? \n\nMOSLEY – H207895 \n \n15 \n \nA. I’m not sure. \n \nQ. Because she gave you— \n \nA. I  guess  because  there  wasn’t  a  specific  time  and  she  didn’t  do  it \ninstantly. \n \nQ. So it was based upon the fact that she couldn’t—she had told you \nthat  she’d  done  something  at  work  that  injured  her  foot.    Did  you \nverify—did you ever look at her foot? \n \nA. Not until the day I took her to the hospital. \n \nQ. Okay.  What did you see when you looked at the foot? \n \nA. It was just bruised. \n \nQ. Okay.  Where was the bruise located? \n \nA. It was all in her very small toe. \n \nQ. On which foot? \n \nA. Left foot. \n \nQ. Left foot, okay.  So based upon that, based upon you were able to \nobserve  an  injury  on  her  foot,  based  upon  her  relating  to  you  that \nthere  actually  was  an  incident  at  work  that  caused  it,  and  she \nrelated  to  you  that  it  happened,  what,  two  weeks  before,  that  did \nnot lead you to fill out an incident report? \n \nA. No, sir. \n \nQ. And  your  testimony,  if  I  understood  it,  you  don’t  know  why  you \ndidn’t  do  it,  based  upon  being  given  that  knowledge?    Is  that  your \ntestimony? \n \nA. I guess because it was—she didn’t report it instantly, and so I took \nit upon myself just to watch after her. \n \n\nMOSLEY – H207895 \n \n16 \nQ. But you never filled out an incident report? \n \nA. No, sir. \n \n In  follow-up  questioning  by  Respondents,  Brawner  stated  that  Claimant  did  not \ninform him the time of the can-dropping incident happened or other details, such as the \nsize of the cans.  He confirmed that he has no medical training that would enable him to \ndifferentiate  a  bruise  from  another  condition.   All  he  could  state  was  that  her  left  small \ntoe was darker than her surrounding pigmentation.  But it was not swollen. \n The medical  records  in  evidence  show  that  Claimant  on  October  25,  2022, \npresented  to  the  emergency  department  of  Baptist  Memorial  Hospital  West  Memphis \nwith pain in her left small toe that she described as “swollen and becoming black.”  The \npain  had  been  present  for  two  weeks.    The  history  portion  of  the  report  also  contains \nthis notation:  “Pt denies hitting it or hurting her toe to cause pain, but is also unsure and \ndoesn’t  remember  if  she  ever  hit  her  toe.”  She  also  related  that  she  was  having \n“warmth . . . coming from her toe and spreading to the dorsal left foot.”  Examination of \nthe left foot showed “[d]ecreased capillary refill . . . [s]welling and tenderness present.”  \nThe  examination  notes  also  read:   “There  is  TTP  to  left  pinky  toe.    Left  pinky  toe  is \nswollen  and  it  is  dark in  color,  cap  refil[l]  [greater  than] 3.   No  cuts,  lesions  or  sores \nnoted.”  (Emphasis  added)    Dr.  Antonio  Martinez  wrote  that  per  her  x-ray,  Claimant \n“probably  has  osteomyletis.”  She  was  prescribed  antibiotics  and  referred  for  vascular \nsurgery.  However, she refused to be transported by ambulance and was discharged to \ntransport herself. \n\nMOSLEY – H207895 \n \n17 \n The  next  day,  October  26,  2022,  Claimant  went  to  Saint  Francis  Hospital  in \nMemphis.  Per the report of the visit, she told treating personnel that her left small toe \nhad been hurting for approximately two weeks.  An x-ray of the left foot showed “[s]oft \ntissue  swelling,  lateral  foot,  can  be  seen  with  soft  tissue  trauma,  cellulitis.”  She  was \ndiagnosed by Dr. Dewight Cowley as having “cellulitis of toe of left foot” and prescribed, \ninter alia, antibiotics. \n Claimant  returned  to Baptist  Hospital  on  November  3, 2022,  to  get  clearance  to \nreturn to work.  The record states in pertinent part: \n[Claimant]  states  that  the  toe  is  looking  a  lot  better  and  all  of  her \npain  is  gone.    She  states  her  color  is  coming  back  to  the  toe.  \nApparently  the  patient  had  a  bunion  on  the  top  of  the  5\nth\n  digit  that \nturned into cellulitis.  The toenail is discolored and very thick, there \nis obvious fungus in the nail bed . . . There is no cellulitis noted in \nthe foot the patient is taking clindamycin as prescribed [and] the toe \nhas no swelling or edema or drainage noted. \n \n Discussion.    In  order  to  prove  the  occurrence  of  an  injury  caused  by  a specific \nincident or incidents identifiable by time and place of occurrence, a claimant must show \nthat:  (1) an injury occurred that arose out of and in the course of her employment; (2) \nthe injury caused internal or external harm to the body that required medical services or \nresulted  in  disability  or  death;  (3)  the  injury  is  established  by  medical  evidence \nsupported  by  objective  findings,  which  are  those  findings  that  cannot  come  under  the \nvoluntary control of the patient; and (4) the injury was caused by a specific incident and \nis identifiable by time and place of occurrence.  Mikel v. Engineered Specialty Plastics, \n56  Ark.  App.  126,  938  S.W.2d  876  (1997).    If  a  claimant  fails  to  establish by  a \npreponderance  of  the  evidence  any  of  the  above  elements,  compensation  must  be \n\nMOSLEY – H207895 \n \n18 \ndenied.  Id.  The standard “preponderance of the evidence” means the evidence having \ngreater weight or convincing force.  Barre v. Hoffman, 2009 Ark. 373, 326 S.W.3d 415 \n(citing Smith v. Magnet Cove Barium Corp., 212 Ark. 491, 206 S.W.2d 442 (1947)). \n The determination of a witness’ credibility and how much weight to accord to that \nperson’s testimony are solely up to the Commission.  White v. Gregg Agricultural Ent., \n72 Ark. App. 309, 37 S.W.3d 649 (2001).  The Commission must sort through conflicting \nevidence and determine the true facts.  Id.  In so doing, the Commission is not required \nto  believe  the  testimony  of  the  claimant  or  any  other  witness,  but  may  accept  and \ntranslate into findings of fact only those portions of the testimony that it deems worthy of \nbelief.  Id.  Based on my observation of Claimant, I find her to be a sincere person.  This \nis  perhaps  best  illustrated  by  her  refusal  to  stipulate  to  a  higher  average  weekly  wage \nthan she believed she earned.  See supra Note 1.  But a conscious effort at veracity is \nonly part of a witness’s credibility.  Another component is the ability to recall times and \ndetails with accuracy. \n It is on this point that Claimant falls short.  With respect to the time of the alleged \ninjury, she was wholly unable to narrow down what time of day the box of cans fell and \nstruck her foot.  As for the date, her testimony was wildly inconsistent.  Eventually, she \nsettled  on  an  estimate  that  three  to  five  days  elapsed  between  the  purported  accident \nand  her  visit  to  the  emergency  room.    But  her  medical  records  show  that  she \nrepresented that the pain in her toe that began two weeks prior. \n Her  testimony  is  questionable  in  other  respects.    In  describing  the  wound  she \npurportedly suffered when the cans landed on her foot, she stated that she sustained “a \n\nMOSLEY – H207895 \n \n19 \nlittle  bitty  puncture  .  .  .  .”  However,  the  Baptist  Memorial  Hospital  report  discussed \nabove disputes this:  “No cuts, lesions or sores noted.” \n Even more problematic is the discrepancy between the testimony she gave at the \nhearing  and  what  she apparently  told  emergency  room  personnel.    While  she  related \nfrom  the  witness  stand  that  she  had  picked  up  a  damaged  box  containing  25-ounce \ncans  of  beer  and  the  soaked  box  broke,  causing  multiple  cans  to  hit  her  foot,  she \ninformed Baptist Memorial Hospital:  “Pt denies hitting it or hurting her toe to cause pain, \nbut is also unsure and doesn’t remember if she ever hit her toe.”  Attempting to explain \nthis at the hearing, Claimant testified that she made this statement to medical personnel \nbecause the cans hit her foot; she did not hit them.  Frankly, this is a distinction without \na difference.  What matters is that at a point much, much closer to the alleged incident \nat Best Beverage, Claimant denied knowing the cause of the condition of her left small \ntoe.  This  inconsistency  arises  again  in  the  questionnaire  she  filled  out  at  Baptist \nMemorial Hospital.  There, she answered “no” when asked:  “Did you injure yourself at \nwork?” \n Unquestionably, Claimant has objective findings.  As documented in her records, \nshe had,  inter  alia,  swelling  in  her  foot  and  toe.    Furthermore,  she  required  medical \nservices to treat these body parts.  But because of the discrepancies recounted above, I \nam  unable  to  find  that  Claimant  is  a  credible  witness.    The  preponderance  of  the \nevidence  does  not  show  that  her  left  toe  and  foot  conditions  arose  out of  and  in  the \ncourse of her employment in Best Beverage; nor does it show that they were caused by \n\nMOSLEY – H207895 \n \n20 \na  specific  incident  identifiable  by  time  and  place  of  occurrence.  In  sum,  Claimant  has \nnot met her burden of proof that she suffered a compensable injury. \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. Compensable Consequence \n Introduction.    Claimant  has  also  alleged  that  she  sustained  a  compensable \nconsequence  in  the  form  of  cellulitis.    Respondents  have  denied  responsibility  for  this \ncondition. \n Discussion.  If an injury is compensable, every natural consequence of that injury \nis  likewise  compensable.   Air  Compressor  Equip.  Co.  v.  Sword,  69  Ark.  App.  162,  11 \nS.W.3d 1  (2000); Hubley  v.  Best  West.  Governor’s  Inn,  52  Ark. App. 226,  916  S.W.2d \n143  (1996).    The  test  is  whether  a  causal  connection  between  the  two  (2)  episodes \nexists.  Sword, supra; Jeter v. McGinty Mech., 62 Ark. App. 53, 968 S.W.2d 645 (1998).  \nThe existence of a causal connection is a question of fact for the Commission.  Koster \nv. Custom Pak & Trissel, 2009 Ark. App. 780, 2009 Ark. App. LEXIS 947.  It is generally \na  matter  of  inference,  and  possibilities  may  play  a  proper  and  important  role  in \nestablishing  that  relationship.  Osmose  Wood  Preserving  v.  Jones,  40  Ark.  App.  190, \n843  S.W.2d  875  (1992).    A  finding  of  causation  need  not  be  expressed  in  terms  of  a \nreasonable   medical   certainty   where   supplemental evidence   supports   the   causal \n\nMOSLEY – H207895 \n \n21 \nconnection.  Koster, supra; Heptinstall v.  Asplundh Tree Expert Co., 84 Ark. App. 215, \n137 S.W.3d 421 (2003). \n Claimant  has  not  shown  that  she  sustained  a  compensable  injury  either  to her \nleft  foot  or  to  her  left  small  toe.    Hence,  she  cannot  prove  that  her  cellulitis—which  is \ndocumented  in  her  medical  records  in  evidence—is  a  compensable  consequence \nthereof. \nC. Remaining Issues \n As  part  of  her  claim  for  initial  benefits,  Claimant  has  also  alleged  that  she is \nentitled  to  treatment  of  her  alleged  injuries,  and  to  temporary  total  disability  benefits.  \nBut because she has not met her burden of proving that she sustained a compensable \ninjury, these issues are moot and will not be addressed. \nCONCLUSION \n In accordance with the Findings of Fact and Conclusions of Law set forth above, \nthis claim for initial benefits is hereby denied and dismissed. \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. H207895 CAROLYN JEAN MOSLEY, EMPLOYEE CLAIMANT BEST BEVERAGE OF WEST MEMPHIS LLC, EMPLOYER RESPONDENT AUTO OWNERS INS. CO., CARRIER RESPONDENT OPINION FILED OCTOBER 11, 2023 Hearing before Administrative Law Judge O. Milton Fine II on August 11, 2023, in Mari...","fetched_at":"2026-05-19T23:01:32.656Z","links":{"html":"/opinions/alj-H207895-2023-10-11","pdf":"https://labor.arkansas.gov/wp-content/uploads/Mosley_Carolyn_H207895_20231011.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}