{"id":"alj-H300652-2023-12-15","awcc_number":"H300652","decision_date":"2023-12-15","opinion_type":"alj","claimant_name":"Lorena Tinajero","employer_name":"Tyson Poultry Inc","title":"TINAJERO VS. TYSON POULTRY INC. AWCC# H300652 DECEMBER 15, 2023","outcome":"granted","outcome_keywords":["granted:4"],"injury_keywords":["shoulder","back","carpal tunnel"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/TINAJERO_LORENA_H300652_20231215.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"TINAJERO_LORENA_H300652_20231215.pdf","text_length":14344,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO. H300652 \n \nLORENA TRUJILLO TINAJERO, Employee                                                      CLAIMANT \n \nTYSON POULTRY INC., SELF-INSURED Employer                                  RESPONDENT \n \n \n OPINION FILED DECEMBER 15, 2023 \n \nHearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Springdale, Washington \nCounty, Arkansas. \n \nClaimant represented by EVELYN E. BROOKS, Attorney, Fayetteville, Arkansas. \n \nRespondents represented by R. SCOTT ZUERKER, Attorney, Fort Smith, Arkansas. \n \n STATEMENT OF THE CASE \n  \n On  September  25,  2023,  the  above  captioned  claim  came  on  for a  hearing  at  Springdale, \nArkansas.  A pre-hearing conference was conducted on June 1, 2023, and a pre-hearing order was filed \non that same date.  A copy of the pre-hearing order has been marked as Commission’s Exhibit #1 \nand 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 this claim. \n 2.   The employee/employer/carrier relationship existed on or about November 30, 2021. \n            3.   The respondents have controverted the claim in its entirety. \n At the pre-hearing conference the parties agreed to litigate the following issues: \n 1.  Whether claimant sustained a compensable injury on or about November 30, 2021. \n            2.  Whether claimant is entitled to medical treatment. \n All other issues are reserved by the parties. \n The claimant contends “She injured her right elbow and shoulder while pulling chicken apart \n\nTinajero-H300652 \n2 \n \nand is entitled to medical treatment. Claimant reserves all other issues.”  \n Claimant withdrew her claim regarding the right elbow at the hearing.  \n The respondents contend that “Claimant did not sustain a compensable injury as that term is \ndefined by Act 796.”     \n From a review of the entire record, including medical reports, documents, and other matters \nproperly before the Commission, and having had an opportunity to hear the testimony of the claimant \nand  to  observe  her  demeanor,  the  following  findings  of  fact  and  conclusions  of  law  are  made  in \naccordance with A.C.A. §11-9-704: \n  FINDINGS OF FACT & CONCLUSIONS OF LAW \n \n 1.   The stipulations agreed to by the parties at a pre-hearing conference conducted on June 1, \n2023 and contained in a pre-hearing order filed that same date are hereby accepted as fact. \n 2.  Claimant  has  met  her  burden  of  proof  by  a  preponderance  of  the  evidence  that  she \nsustained a compensable injury to her right shoulder on or about November 30, 2021, and is entitled \nto  reasonable  and  necessary  medical  treatment  for  that  injury  as  recommended  by  Dr.  Robert \nBenafield.  \n FACTUAL BACKGROUND \n After  the  entry  of  the  prehearing  order  but  prior  to  the  hearing,  claimant  advised  that  she \nwanted to reserve any issue regarding claimant’s elbow injury.  Respondent was aware that claimant \nwas not going to proceed with that portion of the claim and would present evidence solely regarding \nher alleged right shoulder injury. \nHEARING TESTIMONY \n            Claimant  testified  on  November  30,  2021;  she  was  working  as  a  sorter,  trimming  chicken \nbreasts. She testified that the machine used in doing the trimming had not been working properly for \n\nTinajero-H300652 \n3 \n \n \na few days and she had difficulty pulling the chicken out of the machine. Claimant testified that as she \nwas pulling a piece of chicken, she felt a burning in her right arm. She told her supervisor about it that \nday but took a pill and declined to go to the nurse’s station. When she returned to work on December \n1, she went to the nurse’s station and made a report. Claimant does not speak English and the form \nwas completed by someone other than herself. Claimant was definite that she said the pain was in her \nelbow and shoulder but did not know what was written on the form.  \n Initially, claimant saw a therapist that came to the plant and treated her shoulder and elbow. \nWhen that wasn’t working, she went to the doctor on Wagon Wheel Road. She felt the doctor wasn’t \ndoing anything to help her. Claimant asked for an MRI because her arm was falling asleep a lot, but \nthe doctor said Tyson wouldn’t pay for it. His treatment was limited to anti-inflammatory pills, which \nworked for a short time, but the pain in her shoulder returned when she stopped taking them.  \n After finishing a course of physical therapy, the Wagon Wheel doctor discharged her over her \nobjection. Claimant said she worked at light-duty while seeing the doctor and doing physical therapy \nusing only her left hand. When returned to regular duty, claimant was wearing a brace, and her shoulder \nwas burning as well as part of her elbow. Claimant testified that she reported the problem with the \nburning in her shoulder to the nurse three times, but she was not sent back to the doctor. After the \nthird time she went to her own doctor, which was Dr. Benafield. She has been placed on restrictions \nand  has  not  used  her  right  shoulder  in  two  months.  Because  respondents  did  not  send  her  for \nadditional treatment, claimant has used her husband’s health insurance to pay for her treatment. \n On  cross-examination,  claimant  said  that  the  only  work  she  had  missed  was  when  she  had \ncarpal  tunnel  surgery  in  February  2023.  She  maintained  that  the  carpal  tunnel  and  shoulder  injury \nhappened on the same day. A couple of days after she hurt her shoulder, she said her arm started to \nfall asleep. The carpal tunnel surgery relieved the numbness issue in her arm.  \n\nTinajero-H300652 \n4 \n \n \n Claimant  did  not  remember  drawing  a  circle  around  her  right  elbow  as  reflected  on \nRespondent’s Non-Medical Exhibit #1 and said the handwriting on the form was not hers except for \nthe signature. When shown that the date on the form was December 8, 2021, she was adamant that \nthe injury happened on November 30. She said there were a lot of papers for her to sign, and since \nthey were in English, she didn’t think they would do something bad. She was told that it said she had \ngotten  her  shoulder  and  elbow  hurt.  All  of  her  dealings  with  the  plant  nurse,  Dana  Thompson, \ninvolved a Spanish interpreter. While the form correctly said that she had pain in her right elbow, she \nsaid that she also told Ms. Thompson that she felt a burning in her shoulder. She had no explanation \nwhy the records would not include the report of a shoulder injury because she told them that. \n On  redirect-examination,  claimant  said  that  the  doctor  was  told  that  she  had  an  elbow  and \nshoulder injury, but the doctor told her that she had to go to the plant to let them know. When she \ndid so, she was told that it was too late because the report had already been sent to the corporation. \nShe did not know what papers she signed because they were in English. She did not remember if the \nform was filled out before she signed it. Where there was a diagram on the form, she said there was \nnothing marked on it when she signed it. She also said that she did not fill out Form-N, but she did \nsign it. Claimant was clear that she reported the injury to her supervisor the day that she was hurt but \nthere was a written report the next day. \n On recross-examination, respondent asked claimant about each of the items contained on the \nform  and  claimant  agreed  that  most  of  the  information  was  correct.  She  said  that  the  form  was \nincorrect in  that  it  failed  to  mention  her  shoulder  injury,  the  day  it  was  reported,  and  the  safety \nmeasures that could have prevented the accident.  \n On redirect-examination, claimant said that failing to include the shoulder injury on numbers \none, three, and six of the team member’s statement of injury was incorrect. Claimant said she was not \n\nTinajero-H300652 \n5 \n \n \ngiven a copy of the papers that she signed.  \n Respondent submitted claimant’s deposition which was taken on June 7, 2023. In reviewing it, \nI did not see any pertinent information that differed from the testimony presented at the hearing.  \nREVIEW OF THE EXHIBITS \n The parties submitted few duplicate records in their exhibits.  Many reflect claimant’s elbow \ninjury was the initial focus of her treatment.  Claimant was first treated by ART at the plant; those \nrecords mentioned claimant’s shoulder in the December 13, 2021, entry “...nothing is stated regarding \narm or shoulder discomfort this session.”  That indicates that something was said in the previous \nsession, and remembered by the therapist, but not noted in the December 10, 2021, record.  On the \nDecember 17, 2021, report, there is the following: “(p)reviously shoulder was noted to be a secondary \nissue but may possibly be a referral source for the elbow discomfort; will address both shoulder and \nelbow today.”  \n Claimant was then referred to Arkansas Occupational Medicine Services, which is commonly \nreferred to by its location on Wagon Wheel Road.  She had her first visit there on January 5, 2022.  In \nthe section titled “Employer Description Of Accident,” PA-C Ceth Dawson recorded: “Ms. Trujillo \nTinajero was sorting chicken and felt like she overworked her elbow and shoulder.”  While under the \ncare of Arkansas Occupational Medicine Services, she was treated conservatively, and released to full \nduty on June 3, 2022.\n1\n  Little if anything was done to address the shoulder issues.  \n Claimant then went to her own doctor and had carpal tunnel surgery on February 17, 2023.   \nFollowing that procedure, she had a steroid injection in her shoulder, and when that didn’t bring her \n \n1\n As the issue regarding claimant’s elbow was reserved, I did not summarize the records involving the treatment of \nthat injury.  I do note, however, that claimant underwent surgery for carpal tunnel after she was released from Arkansas \nOccupational  Medicine  Services  with  no  restrictions  on  the  use  of  her  arm.  Claimant  testified  that  that  surgery \neliminated the problem of her arm going to sleep. (TR.18) \n\nTinajero-H300652 \n6 \n \n \nrelief,  an  MRI  was  ordered.    The  results  of  it  were  recorded  in  Dr.  Robert  Benafield’s records of \nAugust  7,  2023,  where  it was  noted “Patient  was seen  in  follow  up  for  the  right  shoulder after  the \nMRI. This showed low- grade partial-thickness articular surface tear of the infraspinatus intrasubstance \nof the distal supraspinatus and some degenerative changes of the AC joint and a type II acromion. In \nMarch she had a subacromial injection that only gave her 40% improvement for about two weeks.”  \nDr. Benafield’s last note of September 11, 2023, reads “We will try a month of formal physical therapy \nto the shoulder and if that does not improve then we are going to have to have a discussion about \nsurgical intervention.”  That visit was two weeks before the hearing.  \nADJUDICATION \n \n At the hearing, respondent’s position was simply that claimant did not sustain a compensable \ninjury as defined in Arkansas law.  After considering all the evidence in this matter, I disagree.  \n A claimant's testimony is never viewed as uncontroverted, but the Commission need not reject \nthe claimant's testimony if it finds that testimony worthy of belief. Ringier America v. Combs, 41 Ark. \nApp. 47, 849 S.W.2d 1 (1993).  I found claimant to be credible in her testimony and supported by the \ndocumentary evidence.   \n During cross-examination, claimant was asked at length about the “Team Member Statement \nof Injury/Illness,” (R.X. 2, page 1), a document in English that she (1) didn’t complete, (2) couldn’t \nread and (3) wasn’t provided a copy to have someone else read to her after she signed it.  I believe \nclaimant did mention that she hurt her shoulder at the same time, because the second entry from the \ntherapist that came to the plant where she worked recorded nothing was mentioned about her “arm \nand  shoulder  discomfort  this  session.”  (Emphasis added).  There’s no reason to say that unless \nsomething  about  the  shoulder  had  been  mentioned  in  the  first  session.    Add  to  that  the  entry  at \nArkansas Occupational Medicine Services that is the employer’s account of the injury that  clearly \n\nTinajero-H300652 \n7 \n \n \nmentions a shoulder issue, and I find sufficient evidence that claimant met her burden of proof that \nshe suffered (1) an injury arising out of and in the course of employment; (2) the injury caused internal \nor  external  harm  to  the  body  which  required  medical  services  or  resulted  in  disability  or  death;  (3) \nmedical evidence supported by objective findings establishing an injury; and (4) the injury was caused \nby a specific incident identifiable by time and place of occurrence. Odd Jobs and More v. Reid, 2011 Ark. \nApp. 450, 384 S.W. 3d 630.  The objective evidence came later because the medical providers were \nnot treating the shoulder, but rather the elbow.  When claimant was released with no restrictions but \nstill  had  pain  in  her  elbow  and  shoulder,  the  doctor  she  selected  diagnosed  the  problem instead  of \nignoring it. The medical treatment recommended for claimant’s right shoulder at Ozark Orthopedics \nis reasonable and necessary to treat the compensable right shoulder injury.  \nORDER \nClaimant has met her burden of proving by a preponderance of the evidence that she is entitled \nto additional medical treatment as recommended by Dr. Benafield.  \nPursuant to A.C.A. § 11-9-715(a)(1)(B)(ii), attorney fees are awarded \"only on the amount of \ncompensation for indemnity benefits controverted and awarded.\" Here, no indemnity benefits were \ncontroverted and awarded; therefore, no attorney fee has been awarded. Instead, claimant's attorney \nis free to voluntarily contract with the medical providers pursuant to A.C.A. § 11-9-715(a)(4). \nRespondent  is  responsible  for  paying  the  court  reporter's  charges  for  preparation  of  the \nhearing transcript. \n IT IS SO ORDERED. \n                                                                                             \n_______     \n JOSEPH C. SELF \nADMINISTRATIVE LAW JUDGE","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H300652 LORENA TRUJILLO TINAJERO, Employee CLAIMANT TYSON POULTRY INC., SELF-INSURED Employer RESPONDENT OPINION FILED DECEMBER 15, 2023 Hearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Springdale, Washington County, Arkansas. Claimant represented ...","fetched_at":"2026-05-19T22:59:40.907Z","links":{"html":"/opinions/alj-H300652-2023-12-15","pdf":"https://labor.arkansas.gov/wp-content/uploads/TINAJERO_LORENA_H300652_20231215.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}