{"id":"alj-H300548-2023-12-12","awcc_number":"H300548","decision_date":"2023-12-12","opinion_type":"alj","claimant_name":"Lillian Reichert","employer_name":"Saint Jean Industires, Inc","title":"REICHART VS. SAINT JEAN INDUSTIRES, INC. AWCC# H300548 DECEMBER 12, 2023","outcome":"granted","outcome_keywords":["granted:4"],"injury_keywords":["shoulder","back","neck","repetitive","rotator cuff"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/REICHERT_LILLIAN_H300548_20231212.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"REICHERT_LILLIAN_H300548_20231212.pdf","text_length":29868,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nCLAIM NO. H300548 \n \nLILLIAN J. REICHART, EMPLOYEE         CLAIMANT \n \nv. \n \nSAINT JEAN INDUSTIRES, INC., EMPLOYER                         RESPONDENT \n \nAMERISURE MUTUAL INSURANCE COMPANY \nWORKERS’ COMPENSATION CARRIER                        RESPONDENT \n \nOPINION FILED DECEMBER 12, 2023 \n \nHearing before Administrative Law Judge, James D. Kennedy, on the 26\nth\n day of September \n2023, in Little Rock, Pulaski County, Arkansas. \n \nClaimant is represented by Mr. Daniel A. Webb, Attorney-at-Law, Little Rock, Arkansas. \n \nRespondent  is  represented  by  Ms.  Karen H.  McKinney,  Attorney  at  Law,  Little  Rock, \nArkansas. \n \nSTATEMENT OF THE CASE \n \n A hearing was conducted on the 26\nth\n day of September, 2023, to determine the issues \nof compensability and medical for an injury to the claimant’s left arm, shoulder, and back on \nSeptember  23,  2022.    In  addition,  TTD was  requested  for  two  (2)  separate  time  periods \nrelating to the injury, with the first time period being from November 7, 2022, to April 3, 2023, \nand the second time period being from May 19, 2023, to July 12, 2023, plus attorney fees.  A \nthird  period  of  TTD  from  September  5\nth\n,  2023,  to  a  future  date,  was  reserved.    The \nrespondents contended that the claimant did not sustain a compensable injury on September \n23, 2022, for which she is entitled to benefits.  The parties stipulated that the claimant earned \nan average weekly wage of $728.66 sufficient for a TTD/PPD rate of $486.00 / $365.00 per \nweek, respectively.   A copy of the Prehearing Order was marked  “Commission Exhibit 1” \nand made part of the record without objection.  The Order provided that the parties stipulated \nthat the Arkansas Workers’ Compensation Commission had  jurisdiction  of  the  within  claim \n\nREICHERT – H300548 \n \n2 \n \nand  that  an  employer/employee  relationship  existed  on  or  about  September 23,  2022,  the \ndate of the claimed injury in question.        \n The claimant’s and respondents’ contentions are set out in their respective responses \nto the prehearing questionnaire and made a part of the record without objection.  The  sole \nwitness was Lillian Reichart, the claimant.  From a review of the record as a whole, to include \nmedical  reports  and  other  matters  properly  before  the  Commission,  and having  had  an \nopportunity to observe the testimony and demeanor of the witness, the following findings of \nfact and conclusions of law are made in accordance with Arkansas Code Annotated §11-9-\n704. \nFINDINGS OF FACT AND CONCLUSSIONS OF LAW \n \n1.    The  Arkansas  Workers’  Compensation  Commission  has  jurisdiction  over  this \nclaim. \n \n2.   That an employer/employee relationship existed on September 23, 2022, the date \nof the claimed injury.  At the time, the claimant earned an average weekly wage of \n$728.66 a week, sufficient for a TTD/PPD rate of $486.00 / $365.00, respectively, \nper week. \n \n3.   That  the  claimant  has  satisfied  the  required  burden  of  proof  to  show  that  she \nsustained a compensable work-related on September 23, 2022. \n \n4.   That  the  claimant  is  found  to  be  entitled  to  reasonable  and  necessary  medical \ntreatment for the work-related left shoulder injury which would include the surgery \nto the left shoulder. \n \n5.   The claimant has satisfied the required burden of proof to show that she is entitled \nto TTD for the period beginning  on November  11, 2022, up to and including the \ndate  of  December  11, 2022.    In  addition,  the claimant  has  satisfied  the  required \nburden of proof to show that she is entitled to a second period of TTD beginning \non May 19, 2023, up to and including July 11, 2023. The issue of additional TTD \nfrom September 5\nth\n, 2023, to a future date to be determined was reserved. \n \n6.   The  claimant  is  entitled  to  attorney  fees  pursuant  to  Ark. Code Ann.  § 11-9-715.  \nThis Award shall bear interest at the legal rate pursuant to Ark. Code Ann. § 11-9-\n809. \n \n7.   If not already paid, the respondents are ordered to pay for the cost of the transcript \nforthwith. \n \n\nREICHERT – H300548 \n \n3 \n \nREVIEW OF TESTIMONY AND EVIDENCE \n \n The  Prehearing  Order,  along  with  the  prehearing  questionnaires  of  the  parties’ \nresponses to the prehearing questionnaire were admitted into the record without objection.   \nThe  claimant  submitted  an  exhibit  of  medical  records  that  consisted  of thirty-seven (37) \npages that were admitted without objection. \n The  claimant,  Lillian  J.  Reichart,  testified  she  had  obtained  her  GED and attended \nsome  college.    She  had  worked  as  a  boat  captain  and  then  obtained  her  Electrical  One \nMechanical  Design  Engineering  Job  License.    She  had  managed  and  owned  a  hotel.    In \nregard to  her work for the respondent, she started there working for a staffing agency  and \nwhen the contract with the staffing agency ran out, she was hired directly by the respondent.  \nShe was trained as a machine operator and could load the machines and check for flaws of \nthe  finished  products,  which  consisted  of  aluminum  automobile parts.    On  September  23, \n2022, she was loading the W-L automated line and checking quality to determine if there were \nany flaws.  (Tr. 6-9) \n She stated she injured herself when she picked up a fifteen (15) pound part to place \nit  up  over  the  spindles  and  down  in  a  tray,  and  in  the  process  heard  a  pop  and  felt \n“excruciating pain” in her left shoulder.  She told her employer and then finished out the day.  \nThe  pain  was  excruciating,  and  she  was  given  ibuprofen.      When  she  got  home,  she  took \nsome additional ibuprofen, mixed her a drink, and slid down in a hot tub to soak her shoulder.  \nShe  testified  she  was  hurting  primarily  in  her  left  shoulder  and  up  her  neck.    In  regard  to \nreturning to work the next day, she responded,  “I certainly did.”  In regard to her working the \nnext day,  she stated, “We decided that if I felt like doing work, I felt like working and I felt like \nmaybe it was just a pulled muscle or something, so I worked, and I worked it.  And I wanted \nto work it out so I could continue to work. I work seven days a week.  I’m good at my job.”  \n\nREICHERT – H300548 \n \n4 \n \n“After a while, it just got to where I couldn’t pick my arm up high enough to get the parts up \nover the spindles and down in the trays to send them to the robot.” (Tr. 10-12) \n The respondents sent her to Dr. Herring on the 7\nth\n of November who told her that the \nfirst  step  was  physical  therapy.    She  received  physical  therapy, but  it  did  not  help.    She \nadmitted receiving an x-ray and MRI and stated she still had the pain in her shoulder.  She \ntestified that the doctor took her off work on November 7, 2022, and she took the letter to HR \nand started physical therapy the following week.  In regard to the physical therapy, she stated \nit was horrible.  “It was -- I had natural childbirth and the same day a total hysterectomy, and \nlet me tell you what, that was a lot easier than what I was experiencing then.”  She remained \noff work and was not paid for being off of work.  She returned to the doctor on February 20, \n2023, with the pain in her shoulder becoming worse.  She was told she needed an orthopedic \nspecialist and went to see Dr. Wallace.  She finally received a shot in her shoulder and more \nphysical therapy. (Tr. 13-16)  She stated  Dr.  Wallace  had  her work eighteen (18) days prior \nto her surgery on May 19. (Tr. 17)  The surgery consisted of three (3) incisions which were \nhealing up really well and she was doing physical therapy twice (2) a day, six (6) days a week.  \nThe shots worked great and she was doing a lot better since the surgery.  She returned to \nwork on July 12, 2023, and was not paid any money for being off work. (Tr. 18) \n The claimant stated her shoulder was doing a lot better, but that it still hurt.  She again \nstated  she  hurt  herself while  loading  parts  on an  automatic line.  (Tr. 20)    She  thought  that \nworkers’ compensation  had paid for her visit to Dr. Herring and for some physical therapy, \nbut had not paid for the surgery by Dr. Wallace. (Tr. 21, 22) \n Under cross-examination, the claimant admitted she did not seek medical treatment \nwhen she told the respondent she was injured.  She also  contended  she went through the \nproper channels with HR in regard to the injury and was sent for medical treatment, paid for \nby  the  workers’  compensation  carrier.    She  admitted  that  physical  therapy  had  been \n\nREICHERT – H300548 \n \n5 \n \nauthorized, when shown an email from Tina Swanson, and in addition, the injury date noted \nwas November 2, 2022.  However, the claimant stated that she had turned in paperwork back \nin September to her boss Wynona Richardson and, “We decided that if I could work, maybe \nit was just a pulled muscle or something, it might work out.  Well, it didn’t.”  The claimant also \nadmitted  she  had  received  the  employee  handbook  which  provided  she  should  report  any \ninjury she had sustained at work and contended that she did report it to her supervisor. (Tr. \n23-26)  The claimant was asked about declining any medical treatment and she responded \nthat it was late at night, she would have been required to go to the emergency room, and she \nwanted to attempt to work it out. (Tr. 27) \n The claimant agreed her medical treatment was originally paid for by the respondents.  \nShe  also  agreed  that  many  times  when  she went  to  the  office  of  Dr.  Herring,  she  would \nactually  see  Justin  Matthew  Sharp,  his  nurse  practitioner.  (Tr.  28)    The  claimant  was \nquestioned  about  a  medical  note  signed  by  Nurse  Sharp  that  provided, “It is my medical \nopinion that Lillian Reichart’s shoulder pain in her left shoulder is from tendonopathy, that it \nis likely related to the repetitive motions at work and the tiny instral tear, not the arthritis noted \non the MRI.” The claimant responded “all right.”  “They quit paying for my medical when Dr. \nHerring said he wanted me to see an orthopedic specialist, whatever day that was.” (Tr. 29)   \nClaimant was also questioned about the Form AR-2  which provided that the, “Carrier denies \nclaim in its entirety” and where Nurse Sharp related the findings to repetitive work for  the \nrespondent.  Claimant responded “That’s  what,  yes,  that’s  what  he  said.   I’ve  done  it  \nfor  many  months  before  that.”  (Tr. 30-31) \n On redirect, the claimant again stated when she injured her shoulder, she reported it \nto her supervisor and was not made aware of anything else that she needed to do at that time \nin regard to her claim. (Tr. 32) \n\nREICHERT – H300548 \n \n6 \n \n On  recross,  the  claimant  admitted  the  physical  therapy  was  ordered after  a  new \nincident  which  occurred  when  she  returned  to  work.    She  stated  she  was  doing  physical \ntherapy when she returned to work in July.  She had been provided physical therapy every \nday between July when she was released to return to work and the new incident that occurred \nin September. (Tr. 33) \n In  regard  to  medical  records,  the  claimant  received  an  MRI  at  Baptist  Health  on \nNovember  11,  2022.      The  report  provided  under  impression  a  finding  of  subscapularis \ntendinopathy with a tiny interstitial tear at the superior margin and a likely tiny bursal sided \nfootplate tear at the lesser tuberosity attachment with no full thickness tear.  There was no \nmeasurable  tear  at  the  supraspinatus  with  infraspinatus  tendinopathy.  Biceps  long  head \ntendinopathy was  found  with a probable  split  tear  at  the  intertubercular  grove  with \ndegeneration   without   a   defined   tear   on   this   non   arthrographic   assessment.      Mild \nacromioclavicular  joint  and  moderate  glenohumeral  arthritis  was  found  along  with  cystic \nchanges and marrow edema regional to the intertubercular grove.  The report was signed by \nDr. Hale. (Cl.Ex.1, PP.1-2) \n Baptist  Health  progress  notes  authored  by  Justin Mathew Sharp, APRN, with e-\nsignature verification by Dr. Justin Long, and the report also mentioning Dr. Herring, with the \ninitial note dated November 7, 2022, provided the claimant complained of left shoulder pain \nafter hearing a pop while at work back in September when lifting fifteen (15) pounds of auto \nparts.  The report provided that the accident occurred at work more than a week earlier.  It \nmentioned a complete tear of the left rotator cuff, and stated under assessment and plan it \nwas unspecified whether it was traumatic.  The report referred to the MRI and the x-rays of \nthe left shoulder and stated the injury method was repetitive motion. (Cl.Ex.1, PP.3-  15)  \nA letter from Dr. Herring, dated February 20,  2023,  referred to a left  shoulder injury \nthat occurred in September and referred to the MRI that showed a partial rotator cuff tear and \n\nREICHERT – H300548 \n \n7 \n \na  partial  bicep  tear  with  significant  pain  to  passive  range  of  motion  of  the  left  shoulder.   It \nfurther provided that the claimant was not able to work at the time of the letter and she should \nbe seen by an orthopedic surgeon.  (Cl.Ex.1, P.16)  \nAdditional medical notes from the Baptist Health Family Clinic also with a visit date of \nFebruary  20,  2023,  stated  under  assessment  that  the  claimant  returned  with  left  shoulder \npain with shoulder biceps tendinitis and a partial tear.  It further provided that the history and \nexamination were reviewed with the claimant and that she had tendinosis on the MRI without \nevidence  of  a  full  thickness  tear  or  rupture  with  no  surgical  intervention  at  the  time  of  the \nreport needed or warranted.   Confusingly and  apparently in conflict with the letter from Dr. \nHerring of the same date, this report provided that the claimant could return to work, and this \nwas signed off by Kyle Cotton, PA. (Cl.Ex.1, PP.17-19)   \nOn May 19, 2023, the operating note by Dr. Wallace, provided under post-operative \nfindings,  rotator  cuff  tendinosis,  partial-thickness  intra-articular  biceps  tear  and  tendinosis, \npartial-thickness rotator cuff tear of the articular surface with an arthroscopic partial thickness \nrotator  cuff  tear  of  the  articular  surface  with  arthroscopic  subacromial  decompression  and \nacromioplasty, and subpectoral biceps tenodesis. (Cl.Ex.1,PP.20-  21)  \nThe claimant then presented to OrthoArkansas for an office visit follow-up on May 25, \n2023,  with  the  report  referring  to  a  partial  thickness  rotator cuff  tear,  with  a  disorder  of  a \ntendon  of  the  biceps,  and  an  impingement  syndrome  of  the  shoulder  region,  all  on  the  left \nside, which was signed by Dr. Henry Wallace. (Cl.Ex.1, PP.22-27) \n A note dated September 5, 2023, provided a lifting tolerance for the claimant while at \nwork.  (Cl.Ex.1,P.28).   A note dated August 10, 2023, provided for no heavy lifting, pushing, \nor pulling.  (Cl.Ex.1,P.29)  An earlier note from OrthoArkansas dated July 11, 2023,  provided  \nthe  claimant  may  return  to  work  full-duty  with no work restrictions.  (Cl.Ex. 1,P.30)  An \nemail  dated  November  29,  2022,  provided  authorization  for  twelve  (12)  visits  of  physical \n\nREICHERT – H300548 \n \n8 \n \ntherapy.    (Cl.Ex.1,P.30)  An  email  dated  July  20,  provided  the  claimant  had  missed  1072 \nhours of work since September 1\nst\n and that she did not start missing work until November 7, \n2022.  It additionally stated that her leave started on November 7, 2022, and went to April 3, \n2023,  with  the  second  period  beginning  on  May  19,  2023,  and  going  until  July  12,  2023. \n(Cl.Ex.1,P.32)    Another  note  provided  the  claimant  was  seen  at  a  Baptist  Health  Clinic  on \nNovember 11, 2022, and that she should be excused from work on that date while she was \nbeing  seen  by  Justin  Mathew  Sharpe,  APRN.  (Cl.Ex.1,P.34)    An  additional  note  dated \nNovember 11, 2022, provided that the claimant should remain off of work until December 12, \n2022, and at that time she would be evaluated to return to work. (Cl.Ex.1, P.35)  Another note \ndated June 8, 2022, provided the claimant should be excused from work on June 8,  2022, \nand June 9, 2022, and finally a note on June 9, 2022, provided that the claimant was seen by \nDr. Herring on June 9,  2022, and she should be able to return to work  on June 14, 2022.  \n(Cl.Ex.1,PP.36-37).      \nDISCUSSION AND ADJUDICATION OF ISSUES \n \nIn  regard  to  the  primary  issue  of  compensability,  the  claimant  has  the  burden  of \nproving, by a preponderance of the evidence, that she is entitled to compensation benefits \nfor  the  injury  to  her  left  shoulder under the  Arkansas Workers’ Compensation  Law.  In \ndetermining whether the claimant has sustained her burden of proof, the Commission shall \nweigh  the  evidence  impartially,  without  giving  the  benefit  of  the  doubt  to  either  party.    Ark. \nCode Ann. §11-9-704.  Wade v. Mr. Cavananugh’s, 298 Ark. 364, 768 S.W. 2d 521 (1989).  \nFurther, the Commission has the duty to translate evidence on all issues before it into findings \nof  fact.   Weldon  v.  Pierce  Brothers  Construction  Co.,  54  Ark.  App.  344,  925  S.W.2d  179 \n(1996). \nThe claimant in this matter was a sixty-eight (68) year old woman at the time of the \nhearing and a former boat captain, whose testimony did show something of an independent \n\nREICHERT – H300548 \n \n9 \n \nstreak, but was also found to be believable.  Her testimony in regard to the injury was basically \nunrebutted.  She testified she injured her left shoulder when she picked up a fifteen-pound \nautomobile part and felt a pop with “excruciating pain” in her left shoulder and up her neck.  \nShe testified that she told her employer about the injury and continued to work on the day of \nthe  injury.    When  she  returned  home  that  night,  she  took some  ibuprofen,  mixed  herself  a \ndrink, and slid down into a hot tub to soak her shoulder and then returned to work the next \nday.  The claimant continued to work until November 7, 2022, when after continued shoulder \nissues, the respondents sent her to a doctor, who took her off work on the date of the visit, \nper the claimant’s testimony.  She testified she brought the note taking her off work to HR.  \nThe claimant started receiving physical therapy and gave a somewhat colorful description of \nthe  pain  involved  in  the  therapy  that  started  the  following week.    She  remained  off  work \nwithout pay.  An email provided she was on leave from November 7, 2022, with a return on \nMay 3, 2023.  The second leave period per the email provided she was off work from May \n19, 2023, with a return on July 12, 2023.  \nShe  returned  to her  treating  physician  on  February  20,  2023,  which  resulted  in a \nreferral  to  Dr.  Wallace.  Under  cross-examination,  the  claimant  admitted  she  did  not  seek \nmedical treatment at the time she initially told the respondent of her injury and admitted that \nthose medical records provided an injury date of November 2, 2022.  She also admitted her \noriginal medical treatment had been paid for by the respondents and that Nurse Sharp related \nthe medical findings in regard to her shoulder problems to a repetitive injury.  She also stated \nDr. Wallace had her work  eighteen  (18) days prior to her surgery. \nThe claimant was provided an MRI on November 11, 2022, shortly after her first doctor \nvisit, which showed a subscapularis with a tiny interstitial tear at the superior margins and a \nlikely tiny bursal sided footplate tear at the lesser tuberosity attachment with no full thickness \ntear and also with a probable split tear along the biceps.  On May 19, 2023, Dr. Wallace’s \n\nREICHERT – H300548 \n \n10 \n \noperating note stated under post-operative findings of post rotator cuff tendinosis, a partial-\nthickness  intra-articular  biceps  tear  tendinosis,  a  partial-thickness  rotator  cuff  tear  of  the \narticular surface with an arthroscopic partial thickness rotator cuff tear.     \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. Smith-\nBlair,  Inc.  v.  Jones,  77  Ark.  App.  273,  72  S.W.3d  560  (2002).    Speculation  and  conjecture \ncannot substitute for credible evidence.  Liaromatis v. Baxter County Regional Hospital, 95 \nArk. App. 296, 236 S.W.3d 524 (2006).  More specifically, to prove a compensable injury, the \nclaimant must establish, by a preponderance of the evidence: (1) an injury arising out of and \nin the course of employment; (2) that the injury caused internal or external harm to the body \nwhich  required  medical  services  or  resulted  in  disability  or  death; (3)  medical  evidence \nsupported by objective findings, as defined in Ark. Code Ann. § 11-9-102(16) establishing the \ninjury; and (4) that the injury was caused by a specific incident and identifiable by time and \nplace of occurrence.  If the claimant fails to establish any of the requirements for establishing \nthe compensability of the claim, compensation must be denied.  Mikel v. Engineered Specialty \nPlastics, 56 Ark. App. 126, 938 s.W.2d 876 (1997). \nAn  injury  for  which  the  claimant  seeks  benefits  must  be  established  by  medical \nevidence supported by objective findings which are those findings that cannot come under \nthe voluntary control of the patient. Ark. Code Ann. § 11-9-102(16).  It is also important to note \nthat  the  claimant’s  testimony  is  never  considered  uncontroverted.   Lambert  v.  Gerber \nProducts Co.  14 Ark. App. 88, 684 S.W.2d 842 (1985).  \nHere the medical records clearly mentioned many issues that could be attributed to \nthe claimant’s sixty (60) plus year  old shoulder, which would be typical for a person  of her \nage.  However, under Arkansas Workers’ Compensation law, it is also clear that an employer \n\nREICHERT – H300548 \n \n11 \n \ntakes the employee as it finds her and employment circumstances that aggravate preexisting \nconditions are compensable.  Heritage Baptist Temple v. Robinson, 82 Ark. App. 460, 120 \nS.W.3d 150 (2003). \nFurther,  a  claimant  is  not  required  in  every  case  to  establish  the  casual  connection \nbetween  a  work-related  incident and an injury with an expert medical opinion.  See, Wal-\nmart Stores, Inc. v. VanWagner, 337 Ark. 443, 990 S.W.2d 522 (1999).  Arkansas courts have \nlong  recognized  that  a  causal  relationship  may  be  established  between  an  employment-\nrelated  incident  and  a  subsequent  physical  injury  based  on  evidence  that  the  injury \nmanifested itself within a reasonable period of time following the incident so that the injury is \nlogically attributable to the incident, where there is no other reasonable explanation for the \ninjury.  Hail v. Pitman Construction Co. 235 Ark. 104, 357 A.W.2d 263 (1962) \nA workers’ compensation claimant bears the burden of proving the  compensable \ninjury, by a preponderance of the evidence. Arkansas Code Annotated §11-9-102(4)(E) (i).  \nA compensable injury is one that was the result of an accident that arose in the course of his \nemployment and that grew out of or resulted from the employment.  See, Moore v. Darling \nStore Fixtures, 22 Ar. App 21, 732 S.W.2d 496 (1987)  In the current matter it is noted that \nthe claimant had received healthcare and off work slips prior to the claimed injury on a couple \nof occasions.  However, based upon the available evidence in the case at bar,  there is no \nalternative  but  to  find  that  the  medical  evidence  clearly  supports  the  finding  of  a  traumatic \ntear of some of the left shoulder muscles and this credible evidence supports a finding that \nthe claimant’s left  shoulder  injury  is  in  fact a  work  related  injury  that  occurred  when  the \nclaimant initially felt the pain  on September 23, 2022, while lifting a fifteen  (15) pound part \nand consequently, it is compensable under the Arkansas Workers’ Compensation Act. \nIn regard to the medical, the Arkansas Compensation Act provides that an employer \nshall promptly provide for an injured employee such medical treatment as may be reasonably \n\nREICHERT – H300548 \n \n12 \n \nnecessary  in  connection  with  the  injury  received  by  the  employee.    Ark.  Code Ann.  § 11-9-\n508(a).  The employee has the burden of proving, by a preponderance of the evidence, that \nmedical  treatment  is  reasonably  necessary.   Stone  v.  Dollar  General  Stores,  91  Ark.  App. \n260, 209 S.W. 3d 445 (2005).  Preponderance of the evidence means the evidence having \ngreater weight or convincing force.  Metropolitan Nat’l Bank v. La Sher Oil Co., 81 Ark App. \n263, 101 S.W.3d 252 (2003).  What constitutes reasonably necessary medical treatment is a \nquestion of fact for the Commission.  Wright Contracting Co. v. Randall, 12 Ark. App. 358, \n676 S.W.2d 750 (1984).  The medical treatment that has been provided, including surgery, is \nfound to be reasonable and necessary.   \nTemporary total disability (TTD) is that period within the healing period in which the \nemployee suffers a total incapacity to earn wages.  Ark. State Hwy. Dept. v. Breshears, 272 \nArk. 244, 613 S.W.2d 392 (1981).  “Healing period” means “that period for healing of an injury \nresulting from an accident.”  Ark. Code Ann. § 11-9-102(12).  The determination of when the \nhealing period has ended is a question of fact for the Commission.  Dallas County Hospital v. \nDaniels, 74 Ark. App. 177, 47 S.W.3d 283 (2001) \nHere, the claimant contends that  she is entitled to two  (2) separate periods of TTD, \nwith the first one being from November 7, 2022, and returning to work on April 3, 2023, with \nthe second period running from May 19, 2023, with the claimant returning to work on July 12, \n2023.  An email provided that the claimant was on leave during these two (2) time periods.  \nThe evidence is somewhat confusing at best with at one point a doctor’s report providing that \nthe  claimant  should  remain  off  of  work  and  the  medical  report from  the  same  clinic  on  the \nsame date providing that the claimant could return to work. \nIn regard to the first claimed time period running from November 7, 2022, and returning \nto work on April 3, 2023, the claimant testified that Dr. Herring stated she should not return to \nwork from the date of November 7, 2023.  However, the medical records from that date only \n\nREICHERT – H300548 \n \n13 \n \nprovided the claimant received a note from Justin Sharpe, APRN, that excused her from work \non the day of the actual doctor’s visit, and this report  is found to be controlling.  A second \nnote  from  Nurse  Sharpe  APRN,  dated  November  11,  2022,  provided  the  claimant  should \nremain off work until December 12, 2022.  This would include the date when the claimant had \nto present to Little Rock for an MRI.  There are no other notes of record for the initial time \nperiod in question except for notes providing that the claimant should be allowed off work for \na day of a doctor’s visit, and the confusing letter from the treating doctor stating the claimant \nshould remain off of work on February 20, 2023, with his clinic providing a report on the same \ndate that the claimant could return to work.  Consequently, during the first time period it is \nfound that the claimant is entitled to TTD for the days beginning on November 11 of 2022, \nand up to and including December 11 of 2022. \nIn regard to the second time period running from May 19, 2023, to July 12, 2023, the \nclaimant had surgery on her shoulder performed by Dr. Wallace on May 19, 2023.  A doctor’s \nnote  from  Dr.  Wallace  provided  that  the  claimant  could  return  to  work  full  duty  on  July  12, \n2023.  It is found that the claimant would be entitled to TTD from May 19, 2023, the date of \nher surgery up to and including July 11, 2023.  Temporary total disability is not based on the \nclaimant’s healing period  in  all  cases,  but  is  awarded  where the claimant’s injury-caused \nincapacity prevents him from earning wages he was receiving at the time of the injury.  County \nMkt. v. Thorton, 27 Ark. App. 235, 770 S.W. 2d 156 (1989) \nThe claimant and her attorney are entitled to the appropriate legal fees as spelled out \nin Ark. Code Ann. § 11-9-715.  \nAfter weighing the evidence impartially, without giving the benefit of the doubt to either \nparty, it is found that the claimant has satisfied the burden of proof that her claim for the left \nshoulder  injury is  found  to  be  compensable  and  the  claimant  is  entitled  to reasonable  and \nnecessary  medical  care  for  the  left  shoulder  injury  which  would  include  the  left  shoulder \n\nREICHERT – H300548 \n \n14 \n \nsurgery by Dr. Wallace.  In addition, the claimant has satisfied the required burden of proof \nto  show  that  she  is  entitled  to  TTD  from  a  starting  date  of  November  11,  2022,  up  to and \nincluding the date of December 11, 2022, and also for the period beginning on May 19, 2023, \nup to and including the day of July 11, 2023. \nShe  is  also  entitled  to  attorney  fees  as  spelled  out by  the  Arkansas  Workers’ \nCompensation  Act.    This  Award  shall  bear  interest  at  the  legal  rate  pursuant  to  Arkansas \nCode Annotated §11-9-809. If not already paid, the respondents are ordered to pay the cost \nof the transcript forthwith. \nIT IS SO ORDERED. \n  \n       ___________________________ \n      JAMES D. KENNEDY \n      Administrative Law Judge","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H300548 LILLIAN J. REICHART, EMPLOYEE CLAIMANT v. SAINT JEAN INDUSTIRES, INC., EMPLOYER RESPONDENT AMERISURE MUTUAL INSURANCE COMPANY WORKERS’ COMPENSATION CARRIER RESPONDENT OPINION FILED DECEMBER 12, 2023 Hearing before Administrative Law Judge, James D. ...","fetched_at":"2026-05-19T22:59:24.018Z","links":{"html":"/opinions/alj-H300548-2023-12-12","pdf":"https://labor.arkansas.gov/wp-content/uploads/REICHERT_LILLIAN_H300548_20231212.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}