{"id":"alj-H300192-2024-01-10","awcc_number":"H300192","decision_date":"2024-01-10","opinion_type":"alj","claimant_name":"Ronnie Corter","employer_name":"Commercial Audio Systems, Inc","title":"CORTER VS. COMMERCIAL AUDIO SYSTEMS, INC. AWCC# H300192 JANUARY 10, 2024","outcome":"granted","outcome_keywords":["granted:4"],"injury_keywords":["shoulder","neck","sprain","back"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/CORTER_RONNIE_H300192_20240110.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"CORTER_RONNIE_H300192_20240110.pdf","text_length":24911,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO. H300192 \n \nRONNIE J. CORTER, Employee                                                                    CLAIMANT \n \nCOMMERCIAL AUDIO SYSTEMS, INC., Employer                                RESPONDENT \n \nSTONETRUST INSURANCE COMPANY, Carrier                                   RESPONDENT                        \n \n \n OPINION FILED JANUARY 10, 2024 \n \nHearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Springdale, \nWashington County, Arkansas. \n \nClaimant represented by EVELYN E. BROOKS, Attorney, Fayetteville, Arkansas. \n \nRespondents represented by JASON RYBURN, Attorney, Little Rock, Arkansas. \n \n \n STATEMENT OF THE CASE \n  \n On  December  13,  2023,  the  above  captioned  claim  came  on  for  hearing  at \nSpringdale, Arkansas.  A pre-hearing conference was conducted on September 6, 2023 \nand a pre-hearing order was filed on that same date.  A copy of the pre-hearing order has \nbeen marked as Commission’s Exhibit #1 and made a part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1.   The Arkansas Workers’ Compensation Commission has jurisdiction of the \nwithin claim. \n 2.      The  employee/employer/carrier  relationship  existed  among  the  parties  on \nSeptember 26, 2022. \n 3.   The claimant was earning sufficient wages to entitle him to compensation at \nthe weekly rates of $453.00 for total disability benefits and $340.00 for permanent partial \n\nCorter – H300192 \n2 \n \ndisability benefits. \n At the pre-hearing conference the parties agreed to litigate the following issues: \n1.    Compensability of injury to claimant’s left shoulder on September 26, 2022. \n2.     Related medical. \n3.     Temporary total disability benefits from September 27, 2022 through a date  \nyet to be determined. \n4.      Attorney’s fee. \n The  claimant  contends  he  sustained  a  compensable  left  shoulder  injury  on \nSeptember 26, 2022, and is entitled to medical treatment and temporary total disability \nbenefits from September 27, 2022 to a date yet to be determined.  Claimant reserves all \nother issues. \n The respondents contend the claimant did not suffer a compensable injury. \n From a review of the record as a whole, to include medical reports, documents, \nand other matters properly before the Commission, and having had an opportunity to hear \nthe testimony of the witnesses and to observe their demeanor, the following findings of \nfact and conclusions of law are made in accordance with A.C.A. §11-9-704: \n \n  FINDINGS OF FACT & CONCLUSIONS OF LAW \n \n 1.   The stipulations agreed to by the parties at a pre-hearing conference conducted \non September  6,  2023  and  contained  in  a  pre-hearing  order  filed  that  same  date  are \nhereby accepted as fact. \n 2.   Claimant has met his burden of proving by a preponderance of the evidence \nthat he suffered a compensable injury to his left shoulder on September 26, 2022.   \n\nCorter – H300192 \n \n3 \n \n 3.      Respondent  is  liable  for  payment  of  all  reasonable  and  necessary  medical \ntreatment provided in connection with claimant’s compensable injury. \n 4.   Claimant has proven by a preponderance of the evidence that he is entitled to \ntemporary total disability benefits beginning September 29, 2022 and continuing through \na date yet to be determined. \n 5.   Respondent has controverted claimant’s entitlement to all unpaid indemnity \nbenefits. \n \n FACTUAL BACKGROUND \n Claimant is a 35-year-old man who began working for respondent as an installer \nin  May  2021.    Respondent  primarily  designs  and  installs  audio,  video,  and  lighting  for \ncommercial facilities such as courtrooms, churches, and performing arts centers.  As an \ninstaller,  claimant’s  job  duties  included  running  the  lines  for  speakers  and  audio \nequipment; installation of speakers, audio equipment, tvs, et cetera. \n Claimant  has  an  extensive  history  of  prior  injuries  to  his  left  shoulder,  having \nsuffered injuries to both shoulders while serving in the military.  He testified that the first \nsurgery on his left shoulder occurred while he was stationed in South Korea.  His second \nleft shoulder surgery was in 2009 or 2010.  He underwent a third procedure on the left \nshoulder at Fort Bliss which included Bankart and SLAP revision with five anchor screws \nimplanted.  Claimant’s fourth left shoulder surgery was a Latarjet procedure in May 2013.  \nClaimant  believes  that  this  surgery  was  necessitated  by  job  activities  for  another \nemployer, but he did not file a workers’ compensation claim.  On May 23, 2022, claimant \nunderwent a Laterjet revision procedure by Dr. Cox. \n\nCorter – H300192 \n \n4 \n \n All of these prior procedures were paid for by the military or the VA.  Following the \nmost recent surgery in May 2022, Dr. Cox initially gave claimant a lifting restriction of no \nmore  than  two  pounds  with  his  left  arm.    Notably,  claimant  is  left-hand  dominant.    By \nAugust 31, 2022, Dr. Cox had increased claimant’s ability to lift to 20 pounds with an \nadditional restriction of no climbing ladders.   \n Claimant had returned to work for respondent as an installer within his restrictions.  \nClaimant testified that on September 26, 2022, he was in the process of opening the door \nwith his left hand when another employee, Miguel Martinez, who had entered the building \njust before him abruptly closed the door which resulted in a jerking motion on his left arm.  \nClaimant testified that he immediately felt sharp, searing pain radiating into his neck and \nshoulder and believed he had pulled a muscle in his arm. \n Claimant performed his job duties on September 26, 2022, and again for the next \ntwo days.  On September 29, 2022, claimant indicated that he did not want to ride to a \nchurch job site in the same vehicle with Martinez.  Upon arriving at the job site a heated \ndiscussion took place with claimant using some profanity.  Claimant was terminated by \nrespondent at that time.  Claimant testified that later that same day, he was home washing \ndishes when his left shoulder dislocated. \n Claimant  sought  medical  treatment  from  the  emergency  room  where  he  was \ndiagnosed with a shoulder sprain; given a sling to wear; and instructed to return to his \northopedist.  Claimant  returned  to  see  Dr.  Cox  on  November  30,  2022,  who  noted  that \nclaimant had  three  left  shoulder  dislocations since  the  door  incident  on  September  26, \nwith an additional seven to eight times that the shoulder had tried to dislocate. \n Medical  records  from  Dr.  Cox  indicate  that  he  continued  to  treat  claimant \n\nCorter – H300192 \n \n5 \n \nconservatively with an effort to avoid any further surgery.  His treatment consisted of anti-\ninflammatories and an injection.  When claimant’s condition did not improve Dr. Cox \nperformed a total shoulder replacement procedure on August 17, 2023.   \n Claimant has filed this claim contending that he suffered a compensable injury to \nhis  left  shoulder  on  September  26,  2022.    He  requests  payment  of  medical  treatment, \ntemporary total disability benefits, and a controverted attorney fee. \n  \nADJUDICATION \n Claimant  contends  that  he  suffered  a  compensable  injury  to  his  shoulder as  a \nresult  of  the  incident  with  the  door  on  September  26,  2022.    Clearly,  claimant  had \nsignificant  pre-existing  left  shoulder  problems.    In  fact,  claimant  had  just  recently \nundergone  a  Laterjet  revision  procedure  by  Dr.  Cox  on  May  23,  2022,  and was  still \nworking within restrictions given to him by Dr. Cox following that procedure.  However, an \nemployer  takes  the  employee  as  it  finds  him,  and  employment  circumstances that \naggravate pre-existing conditions are compensable.  Heritage Baptist Temple v. Robison, \n82  Ark.  App.  460,  120  S.W.  3d  150  (2003).    An  aggravation  of  a pre-existing  non-\ncompensable  condition  by  a  compensable  injury  is,  itself,  compensable.   Oliver  v. \nGuardsmark,  68  Ark.  App.  24,  3  S.W.  3d  336  (1999).    An  aggravation  is  a  new  injury \nresulting from an independent incident.  Crudup v. Regalware, Inc., 341 Ark. 804, 20 S.W. \n3d 900 (2000).  An aggravation, being a new injury with an independent cause, must meet \nthe  definition  of  a  compensable  injury  in  order  to  establish  compensability  for  the \naggravation.  Farmland Insurance Company v. DuBois, 54 Ark. App. 141, 923 S.W. 2d \n883 (1996); Ford v. Chemipulp Process, Inc., 63 Ark. App. 260, 977 S.W. 2d 5 (1998). \n\nCorter – H300192 \n \n6 \n \n Thus, the fact that claimant had a pre-existing condition to his left shoulder does \nnot  disqualify  him  from  compensation  benefits  if  he  can  prove  that  his  pre-existing \ncondition was aggravated by a work-related injury.  Claimant contends that he suffered \nhis compensable injury as the result of a specific incident which occurred on September \n26,  2022,  when  the  front door of respondent’s place of business was forcefully  shut, \ncausing a jerking sensation on his left arm.  Claimant’s claim is for a specific injury \nidentifiable by time and place of occurrence.     In order to prove a compensable injury as \nthe  result  of  a  specific  incident  that  is  identifiable  by  time  and  place  of  occurrence,  a \nclaimant must establish by a preponderance of the evidence (1) an injury arising out of \nand in the course of employment; (2) the injury caused internal or external harm to the \nbody  which  required  medical  services  or  resulted  in  disability  or  death;  (3)  medical \nevidence  supported  by  objective  findings  establishing  an  injury;  and  (4)  the  injury  was \ncaused by a specific incident identifiable by time and place of occurrence.  Odd Jobs and \nMore v. Reid, 2011 Ark. App. 450, 384 S.W. 3d 630. \n After reviewing the evidence in this case impartially, without giving the benefit of \nthe  doubt  to  either  party,  I  find  that  claimant  has  met  his  burden  of  proving  by a \npreponderance of the evidence that he suffered a compensable injury.  First, I find that \nclaimant’s injury arose out of and in the course of his employment with the respondent.  \nRespondent contends that claimant was not performing “employment services” at the time \nthe accident occurred.  A compensable injury does not include an injury that is inflicted \nupon the employee at a time when employment services are not being performed.  A.C.A. \n§11-9-102(4)(B)(iii).    The  Courts  have  determined  that  an  employee  is  performing \nemployment services when he is doing something that is generally required by his or her \n\nCorter – H300192 \n \n7 \n \nemployer.  Pifer v. Single Source Transportation, 347 Ark. 851, 69 S.W. 3d 1 (2002).  We \nuse the same test to determine whether an employee is performing employment services \nas  is  used  when  determining  whether  an  employee  was  acting  within  the  course and \nscope of employment.  Jivan v. Econ. Inn & Suites, 370 Ark. 414, 260 S.W. 3d 281 (2007).  \nThe  test  is  whether  the  injury  occurred  within  the  time  and  space  boundaries  of  the \nemployment, when the employee was carrying out the employer’s purpose or advancing \nthe employer’s interest, directly or indirectly.  Id.  In Texarkana School District v. Conner, \n373 Ark. 372, 284 S.W. 3d 57 (2008), the Court stated that where it was clear that the \ninjury occurred outside the time and space boundaries of employment, the critical inquiry \nis whether the interests of the employer were being directly or indirectly advanced by the \nemployee at the time of the injury.  In addition, the issue of whether an employee was \nperforming  employment  services  within  the  course  of  employment  depends  upon  the \nparticular facts and circumstances of each case.   \n I   find   based   upon   the   evidence   presented   that   claimant   was   performing \nemployment services at the time of his injury.  Respondent notes that claimant had not \nactually entered the building at the time of the incident and that he had not clocked in and \nwas  not  performing  any  job  duties  at  the  time  the  incident  occurred.    However,  the \nevidence indicates that claimant was in the process of actually clocking in at the time the \naccident occurred.  According to claimant’s testimony, he and other employees used an \napp on their phone to clock in for work.  Claimant testified that he was in the process of \nclocking in when the incident occurred: \n   \n  Q And you were using it [phone] to clock in? \n\nCorter – H300192 \n \n8 \n \n \n  A Yes, sir.  You just tap on the app, it pops up, you \n  tap on it to clock in and you are done and you close that \n  app and put it back in your pocket. \n \n  Q Did you successfully clock in before this incident \n  occurred?   \n \n  A I was in the process of clocking in as it happened. \n \n  Q  Okay.  So had you pressed the button or not? \n \n  A I think I was actually in the process of pressing the \n  button when he pulled on the door which caused me to \n  actually probably miss the button. \n \n  Q Okay.  So if not for that incident - -  \n \n  A I would have been clocked in. \n \n \n Thus, claimant was actually in the process of clocking in at the very moment this \nincident occurred.  In addition, he was also in the process of walking through the front \ndoor to begin his work day at the time the incident occurred.  While respondent contends \nthat there are a number of cases involving injuries which occurred to employees before \nthey enter a building in which a claimant is not performing employment services, I note \nthat those are generally in a parking lot or other areas of the business.  In this particular \ncase, claimant was literally prevented from clocking in and entering the building to begin \nhis job duties by the actions of Martinez.  Therefore, even though claimant’s injury did \noccur outside the time and/or space boundaries of his employment, “The critical inquiry \nis whether the interests of the employer were being directly or indirectly by the employee \nat  the  time  of  the  injury.”  (Emphasis added.)  See Wood v. Wendy’s Old Fashioned \nHamburgers,  2010 Ark. App. 307, 374 S.W. 3d 785.  Claimant was clearly advancing his \n\nCorter – H300192 \n \n9 \n \nemployer’s interest, either directly or indirectly, by clocking in and entering the building at \nthe  time  this  incident  occurred.    Accordingly,  I  find  that  claimant  was  performing \nemployment services at the time of his injury.  Therefore, I find that claimant’s injury arose \nout of and in the course of his employment with respondent. \nI also find that claimant has proven by a preponderance of the evidence that his \ninjury  was  caused  by  a  specific  incident  identifiable  by  time  and  place  of  occurrence.  \nClaimant testified that his injury occurred on September 26, 2022, when he was holding \nthe door handle to open the door to respondent’s business and it was jerked closed, \nresulting  in  pain  in  his  left  shoulder.    Although  there  was  some  initial  question  at  the \nhearing as to whether or not this incident occurred, the co-employee, Miguel Martinez, \ntestified as a witness.  The following testimony occurred: \n   THE COURT:  Mr. Martinez, I have got a question for \n  you.  You said you noticed that Mr. Corter was about two or \n  three steps behind you when you went in the building. \n \n   THE WITNESS:  Well, the door is here.  I am coming \n  from around the building.  He is coming this way.  So like he \n  is coming straight and I am coming from the side. \n \n   THE COURT:  So my question to you is why did you \n  close the door behind you when you knew he was right behind \n  you?   \n \n   THE WITNESS:  It was just one of those deals.  I guess \n  just to mess with him. \n \n   THE COURT:  So you did do it to mess with him? \n \n   THE WITNESS:  I guess so. \n \n   THE COURT:  And you do affirm that he came in and \n  told you immediately after that that you had injured his shoulder \n  as a result of that; is that correct? \n \n\nCorter – H300192 \n \n10 \n \n   THE WITNESS:  He was telling me something about  \n  that he just had surgery on it and that I could have possibly \n  hurt him or something. \n \n \n Martinez had also previously testified that claimant mentioned that the incident had \ninjured his left shoulder immediately after it had occurred.   \n  Q Did Mr. Corter say anything at that time? \n  A Yes.  After that, I proceeded to the breakroom. \n  He talked to me about saying that I messed up his \n  shoulder intentionally.  Something about a surgery that \n  he had.  I told him that it was an accident.  I didn’t mean \n  to harm him in any way and I apologized to him. \n \n \n It  is  clear  from  the  evidence  presented  at  the  hearing  that  there  was  animosity \nbetween  Martinez  and  claimant  at  the  workplace.    However,  claimant’s  claim  for  a \ncompensable  injury  does  not  require  him  to  prove  that  Martinez  intentionally  meant  to \ncause him an injury.  Even if this incident was accidental and the result of Martinez’s effort \nto “mess” with claimant, that is sufficient under Arkansas law.  Accordingly, I find that \nclaimant has proven that his injury was caused by a specific incident identifiable by time \nand place of occurrence. \n I also find that claimant’s injury caused internal or external harm to his body that \nrequired  medical  services  or  resulted  in  disability  and  that  he  has  offered  medical \nevidence supported by objective findings establishing an injury. \n First,  it  should  be  noted  that  on  the  day  of  this  door  incident,  claimant  did  seek \nmedical treatment from an emergency room later that day for complaints of groin pain.  At \nno  time  during  that  examination  did  claimant  make  any  complaints  involving  his  left \nshoulder.  Claimant testified that at that time it was his belief that he had simply pulled a \n\nCorter – H300192 \n \n11 \n \nmuscle in his shoulder and that he would not be provided any treatment at the emergency \nroom other than a recommendation to place ice on the shoulder and use over-the-counter \nmedications.  Two days later after the claimant was terminated and he was home washing \ndishes  his  left  shoulder  dislocated.    Claimant  sought  medical  treatment  from  the \nemergency room that day and the emergency room records contain a history of claimant’s \nleft shoulder pain having begun three days ago as a result of an incident in which claimant \nwas attempting to open the door and an individual on the other side was attempting to \nclose the door causing a pull on his left shoulder.  Subsequent medical records from Dr. \nCox also support a notation of history consistent with claimant’s testimony. \n As previously noted, Dr. Cox initially attempted to treat claimant conservatively and \naccording to Dr. Cox’s report of December 21, 2022, while the incident at work had \ncaused increased pain in the claimant’s left shoulder, his x-rays  were  not  significantly \ndifferent than they were before that incident.  However, claimant continued to complain \nof left shoulder pain and Dr. Cox eventually ordered an MRI scan which revealed a small \ninterstitial  tear  of  the  conjoint/anterior  infraspinatus  tendons.    Thereafter,  Dr.  Cox \nperformed the total shoulder replacement procedure on August 17, 2023.  Dr. Cox’s \noperative report of that date contains the following post-op diagnosis: \n1.   Left shoulder DJD \n2.   Left bicipital tenosynovitis and tearing. \n3.   Left shoulder pain and dysfunction secondary \n to 1 and 2.  (Emphasis added.) \n This  tearing  observed  by  Dr.  Cox  during  his  surgical  procedure  constitutes  an \nobjective finding.   \n Accordingly, based upon the objective finding of tearing noted by Dr. Cox as well \n\nCorter – H300192 \n \n12 \n \nas  the  remaining  medical  records  from  Dr.  Cox,  I  find  that  claimant  has  proven  by  a \npreponderance  of  the  evidence  that  his  injury  caused  internal  harm  to  his  body that \nrequired  medical  services  and  that  he  has  offered  medical  evidence  supported  by \nobjective findings establishing an injury. \n Based upon the foregoing, I find that claimant has met his burden of proving by a \npreponderance of the evidence that he suffered a compensable injury to his left shoulder \non  September  26,  2022.  Respondent  is  liable  for  payment  of  all  reasonable  and \nnecessary medical treatment provided in connection with claimant’s compensable left \nshoulder injury.  This includes the surgical procedure performed by Dr. Cox on August \n17, 2023.   \n Claimant also contends that he is entitled to temporary total disability benefits.  In \norder  to  be  entitled  to  temporary  total  disability  benefits,  claimant  has  the  burden  of \nproving by a preponderance of the evidence that he remains within his healing period and \nthat  he  suffers  a  total  incapacity  to  earn  wages  as  a  result  of  his  compensable  injury.  \nArkansas State Highway & Transportation Department v. Breshears, 272 Ark. 244, 613 \nS.W. 2d 392 (1981).   \n I  find  that  claimant  has  met  his  burden  of  proving  by  a  preponderance  of the \nevidence that he is entitled to temporary total disability benefits beginning September 29, \n2022 and continuing through a date yet to be determined.  First, I find that claimant has \nremained  within  his  healing  period  since  September  29,  2022.    On  that  date,  claimant \nsought  medical  treatment  from  the  Washington  Regional  Medical  Center  emergency \nroom and he was referred back to his orthopedist, Dr. Cox.  Since that time, claimant has \ncontinued to be evaluated and treated by Dr. Cox and that treatment has now included \n\nCorter – H300192 \n \n13 \n \nsurgery  on  August  17,  2023.    As  of  September  15,  2023,  claimant  was  continuing  to \nreceive care from Dr. Cox with no indication that claimant has reached maximum medical \nimprovement.    Accordingly,  I  find  that  claimant  has  remained  within  his  healing  period \nsince September 29, 2022.   \n I also find that claimant has suffered a total incapacity to earn wages since that \ndate.  When claimant sought medical treatment from the emergency room he was given \na  sling  to  wear  on  his  left  arm.    As  previously  noted,  claimant  is  left-hand  dominant.  \nAccordingly, claimant would only be able to perform job duties involving his non-dominant \nhand.  In Farmers Co-Op v. Biles, 77 Ark. App. 1, 69 S.W. 3d 899 (2002), the Arkansas  \nCourt of Appeals stated: \n \n  If, during the period while the body is healing, the employee \n  is unable to perform remunerative labor with reasonable \n  consistency and without pain and discomfort, his temporary \n  disability is deemed is total. \n \n \n Based upon the fact that claimant’s dominant arm was in a sling and that he would \nonly be capable of performing work with his non-dominant arm, I find that claimant has \nproven  by  a  preponderance  of  the  evidence  that  he  suffered  a  total  incapacity to  earn \nwages since September 29, 2022 and continuing through a date yet to be determined.   \nFollowing claimant’s surgery, Dr. Cox placed a two-pound lifting restriction on claimant’s \nability to lift with his left arm.   \n In  summary,  I  find  that  claimant  is  entitled  to  temporary  total  disability  benefits \nbeginning September 29, 2022 and continuing through a date yet to be determined.   \n \n\nCorter – H300192 \n \n14 \n \nAWARD \n Claimant has met his burden of proving by a preponderance of the evidence that \nhe  suffered  a  compensable  injury  to  his  left  shoulder  on  September  27, 2022.  \nRespondent  is  liable  for  payment  of  all  reasonable  and  necessary  medical  treatment \nprovided in connection with his compensable left shoulder injury.  Claimant is entitled to \ntemporary total disability benefits beginning September 29, 2022 and continuing through \na date yet to be determined.  Pursuant to A.C.A. §11-9-715(a)(1)(B), claimant’s attorney \nis  entitled  to  an  attorney  fee  in  the  amount  of  25%  of  the  compensation for  indemnity \nbenefits payable to the claimant.   Thus, claimant’s attorney is entitled to a 25% attorney \nfee based upon the indemnity benefits awarded.   This fee is to be paid one-half by the \ncarrier  and  one-half  by  the  claimant.      Also  pursuant  to  A.C.A.  §11-9-715(a)(1)(B),  an \nattorney fee is not awarded on medical benefits. \nRespondents  are  responsible  for  payment  of  the  court  reporter’s  charges  for \npreparation of the hearing transcript in the amount of $853.95. \nAll sums herein accrued are payable in a lump sum and without discount. \nIT IS SO ORDERED. \n \n \n      ________________________________ \n       GREGORY K. STEWART \n       ADMINISTRATIVE LAW JUDGE","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H300192 RONNIE J. CORTER, Employee CLAIMANT COMMERCIAL AUDIO SYSTEMS, INC., Employer RESPONDENT STONETRUST INSURANCE COMPANY, Carrier RESPONDENT OPINION FILED JANUARY 10, 2024 Hearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Springdale, Washing...","fetched_at":"2026-05-19T22:58:15.274Z","links":{"html":"/opinions/alj-H300192-2024-01-10","pdf":"https://labor.arkansas.gov/wp-content/uploads/CORTER_RONNIE_H300192_20240110.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}