{"id":"alj-H300753-2023-09-21","awcc_number":"H300753","decision_date":"2023-09-21","opinion_type":"alj","claimant_name":"Laurene Kelley","employer_name":null,"title":"KELLEY VS. DENTAL HEALTH ASSOCIATES OF ARKANSAS P.A.AWCC# H300753 SEPTEMBER 21, 2023","outcome":"denied","outcome_keywords":["dismissed:1","denied:5"],"injury_keywords":["back","fracture","thoracic"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads//KELLEY_LAURENE_H300753_20230921.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"KELLEY_LAURENE_H300753_20230921.pdf","text_length":15731,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO. H300753 \n \nLAUREN E. KELLEY, Employee                                                                                CLAIMANT \n \nDENTAL HEALTH ASSOCIATES OF ARKANSAS P.A., Employer                  RESPONDENT \n \nTRAVELERS INDEMNITY COMPANY, Carrier                                                RESPONDENT \n    \n \n OPINION FILED SEPTEMBER 21, 2023 \n \nHearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Fort Smith, Sebastian \nCounty, Arkansas. \n \nClaimant represented by EDDIE H. WALKER, JR., Attorney, Fort Smith, Arkansas. \n \nRespondents represented by AMY C. MARKHAM, Attorney, Little Rock, Arkansas. \n \n \n STATEMENT OF THE CASE \n  \n On August 29, 2023, the above captioned claim came on for a hearing at Fort Smith, Arkansas.  \nA pre-hearing conference was conducted on April 27, 2023, and a pre-hearing order was filed on that \nsame date.  A copy of the pre-hearing order has been marked as Commission’s Exhibit #1 and made \na 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 February 1, 2023. \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: \n1.  Whether claimant sustained a compensable injury on February 1, 2023. \n2.  If compensable, compensation rate.  \n \n\nKelley-H300753 \n2 \n \n 3. If compensable, whether claimant is entitled to medical benefits and temporary total   \n                disability benefits. \n4.  Attorney’s fees. \nAll other issues are reserved by the parties. \nThe claimant contends that “on February 1, 2023, while following directions of her employer, \nshe fell and sustained injury to her back and buttocks. The claimant contends that she is entitled to \ntemporary  total  disability benefits  from  February  2, 2023, through  March  19, 2023, and  reasonably \nnecessary medical treatment. The claimant contends that she has sustained a fracture in her thoracic \nspine; however, since she has not reached maximum medical improvement, she reserves the right to \nlitigate entitlement to permanent disability benefits. The claimant contends that her attorney is entitled \nto an appropriate attorney’s fee.” \nThe respondents contend that “Claimant was not in the course and scope of her employment \nwhen the accident occurred. Claimant was coming and going when she sustained the alleged injury.”   \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 \nwitnesses and to observe their demeanor, the following findings of fact and conclusions of law are \nmade 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 on April \n27, 2023, and contained in a pre-hearing order filed that same date are hereby accepted as fact. \n 2. Claimant has failed to prove by a preponderance of the evidence that she suffered a \ncompensable injury on February 1, 2023. \n \n\nKelley-H300753 \n3 \n \n \nHEARING TESTIMONY   \n \n Claimant  testified  that  on  February  1, 2023, she  was  employed  at  Pointer Family  Dental  in \nVan  Buren,  Arkansas.  On  that  date,  she  was  involved  in  an  accident  when  she  was  going  into the \nbuilding where she works and slipped on ice on the stairs leading into the building.  The weather that \nmorning was cold, icy, and wet; her manager had sent a text message to the employees that the office \nwould  open  late.  When  she  arrived,  the  parking  lot  appeared  to  be  dry,  but  the  stairs  looked  wet.  \nClaimant did not realize it was ice on them until after she fell. She said both of her feet came out from \nunder her, and she slipped all the way down to the bottom of the stairs.  \nClaimant stated she was going to the employee entrance at the back of the building, as that is \nthe normal entrance for employees. She had never used the front door of the business when reporting \nto work because when she started working there, she was told by a previous manager to use the back \ndoor.  Her attorney then asked this question: \nQuestion (By Mr. Eddie H. Walker) Did you have any reason to be on those \nstairs other than following the directions of your employer as far as how you \nwere  supposed  to  enter  the  building?  In  other  words,  if  you  had  not  been \ninstructed to go into that back entrance, would you have been on that stairwell. \nAnswer (By Claimant) No. \n \nQ: And did you have any reason to be there other than that? \nA: No. \n \n Claimant said she suffered a compressed fracture at T8 in her back and was off work from \nFebruary 1 through March 18, 2023. As of the date of the hearing, claimant said she has been released \nfrom active treatment and did not have any pain in her back at that point. \n On  cross-examination,  claimant  was  asked  to  read  the  text  that  she  had  received  on  the \nmorning of February 1, 2023, which was as follows: \n“Plan was to open this morning at 11:00. Take your time to leave your house \nin plenty of time to make your way to the office. Some bridges may still have \nsome ice on them, so just be very careful driving in and be very cautious. I \n\nKelley-H300753 \n4 \n \n \nwill see everyone in a little while.” \n \n Claimant admitted that nowhere in the text message did the manager at Pointer Family Dental, \nP.  J.  Sharp,  instruct  her  to  use  the  back  entrance  when  she  came  to  work.  Claimant  said  she  was \nmistaken in her answer during her deposition that she had been told to use the employee entrance \nwhen coming in.  \n Claimant agreed that when she fell, she had not begun her workday, but rather had just exited \nher  car  and  was  on  her  way  to  enter  the  building.  She  said  that  she  clocked  in inside  the  building \nthrough  a  computer;  on  the  morning  of  the  fall,  she  did  not  clock  in.  She  agreed  that  she  had  not \nperformed any work duties before she fell. \n On redirect-examination, claimant said she used the steps to the back entrance because she \nhad been directed to do so. She did not have any reason to believe the steps were icy. Claimant stated \nthat she was not using the back entrance on her own discretion and had never entered the building by \nany entrance other than the back entrance.  \n On recross-examination, claimant did not believe she would have been reprimanded if she had \nused the front entrance. The day before the fall and the morning of the fall, claimant conceded she \nhad not been told to use the back entrance. \n On redirect-examination, claimant said that she would not have been in violation of company \npolicy if she had used any entrance other than the back entrance. When questioned further, she agreed \nthat if someone in a managerial position tells her to do something, she is supposed to do it, but she \nwas not aware of any consequences if she acted in violation of what the supervisor told her to do. \n After claimant rested, respondent called Patsy Jeannette Sharp, who goes by the initials P.J. \nShe is the practicing manager at Pointer Family Dental and had been since September 19, 2022. She \nknew claimant from being an employee at the clinic.  \n\nKelley-H300753 \n5 \n \n \n On the morning of February 1, 2023, Ms. Sharp said that she arrived at work about 9:00 a.m., \nand the clinic was to open at 11:00 a.m. She had notified the employees via a text message about the \ndelayed opening. After Ms. Kelley fell, she sent another text message that instructed employees to not \ncome down the stairs to the back but rather go around because claimant had fallen and was still on \nthe steps while awaiting the ambulance. Ms. Sharp said that she had not discussed in any fashion with \nclaimant of how to enter the building and that there will be no repercussions or disciplinary actions \ntaken against an employee if they opted to come through the front door on February 1, 2023, rather \nthan the back door. She had never instructed any employee that it was required to use the back door \nto enter the building.  \n After claimant fell, she called Ms. Sharp who came to claimant’s assistance and called 911. Ms. \nSharp was unaware if claimant had entered the building before she had fallen but believed that she \nwould have known who had arrived and who hadn’t. Claimant was  required  to  clock  in  at  the \nbeginning of her workday and had not yet done so before her fall. Ms. Sharp said that claimant had \nnot begun any work as a dental assistant on February 1, 2023, before she fell.  \n On cross-examination, Ms. Sharp said that a person could walk across the lawn to enter the \nemployee’s entrance rather than using the stairs. Ms. Sharp conceded that she had no way of knowing \nwhat  claimant  had  been  told  regarding  the  use  of  the  employee  entrance before  she became the \nmanager. Ms. Sharp had used the stairs when she came into the building, and she was not aware of \nany ice on them. She knew there was some ice on the sidewalk because the EMT’s slipped on it when \nthey were coming to help her. She said the steps were not treated until after claimant fell.  There was \nno warning or notice of any kind that the sidewalks might be icy. \n When asked about the text that said “Do not come down the stairs to the back. Go around” \nMs. Sharp said that was sent to let others know to go around because the ambulance had not arrived. \n\nKelley-H300753 \n6 \n \n \nWithout that text, she expected others to come down the same stairs because that’s the way the \nemployees always enter. \n In questioning from the Court, Ms. Sharp said that the sign on the back door was to tell the \npublic not to use that door.  \n I found both witnesses to be credible.  Claimant corrected herself on a couple of points that \nshe attributed  to  nervousness,  and  I  do not believe that  she  was trying  to  be  deceptive when  she \nmisspoke.   \nREVIEW OF THE MEDICAL RECORDS  \n \n As the issue in this case is the compensability of claimant’s injury rather than the existence of \nit, an exhaustive review of the medical records is unnecessary. The records from the February 1, 2023, \nvisit  to  Mercy  Hospital  in  Fort  Smith  provide  objective  evidence  of  an  injury  consistent with  what \nclaimant said in her testimony; she suffered a fracture at T8 vertebral body. Claimant also provided \nample documentation  to  support  her  claim  that  she  would  be  entitled  to  temporary  total  disability \nbenefits from February 1 through March 16, 2023, if I determined she suffered a compensable injury. \nNON-MEDICAL DOCUMENTS REVIEW  \n Both  claimant  and  respondents submitted  the  text  messages  from Ms. P.  J.  Sharp  on  the \nmorning  of  February  1, 2023, regarding  first  the  delayed  opening  of  the  dental  office and  then  the \nwarning to employees to not to come down the stairs to the back door. Claimant also submitted the \nEMS bill in the total amount of $1,246.42, less Blue Cross of Arkansas payments of $830.90, leaving \nher with a bill in the amount of $415.52. \n Respondents submitted excerpts from claimant’s deposition, none of which are germane to \nthe issue of compensability. Respondents also submitted a transcript of a recorded statement claimant \ngave on February 22, 2023, but again, nothing of value to the issue of compensability was contained \n\nKelley-H300753 \n7 \n \n \ntherein.  The  remaining  non-medical  exhibits  were a  photograph  of  the  building  which  showed  the \nsteps and the parking lot, wage records and the previously mentioned texts from Ms. Sharp to claimant \nand other employees on February 1, 2023. \nADJUDICATION \n \nIn order to prove a compensable injury as the result of a specific incident that is identifiable \nby time and place of occurrence, a claimant must establish by a preponderance of the evidence (1) an \ninjury arising out of and in the course of employment; (2) the injury caused internal or external harm \nto  the  body  which  required  medical services  or  resulted  in  disability  or  death;  (3)  medical  evidence \nsupported  by  objective  findings  establishing  an  injury;  and  (4)  the  injury  was  caused  by  a  specific \nincident identifiable by time and place of occurrence. Odd Jobs and More v. Reid, 2011 Ark. App. 450, \n384 S.W. 3d 630. After reviewing the evidence in this case impartially, without giving the benefit of \nthe  doubt  to  either  party,  I  find  that  claimant  has  failed  to  meet  her burden  of  proving  by  a \npreponderance of the evidence that she suffered a compensable injury on February 1, 2023.  \n The material facts as  they  relate  to  the slip  and  fall  are  not  in  dispute.  On  a  day when the \nrespondent employer opened late due to icy road conditions, claimant slipped on the steps leading to \nthe employee’s entrance to the dental office where she worked.  Respondent’s witness attended  to \nclaimant as she laid on the cold steps/sidewalk until the ambulance arrived. The medical records from \nthe facility where claimant was taken after the fall amply provide objective proof of an injury from \nthat fall.  The only question for me to decide is if claimant was engaged in employment activity at the \ntime of her fall.   I find she failed to prove that she was so engaged.  \n I find the facts of this matter are indistinguishable from Webster v. Ark. Dep't of Corr., 2017 Ark. \nApp.  558,  537  S.W.3d  731.    In  that  case,  Webster  appealed  an  adverse  decision  from  the  Full \nCommission that she had failed to prove entitlement to workers’ compensation benefits as the result \n\nKelley-H300753 \n8 \n \n \nof  falling on “black ice” in  the  parking  lot  of  her  employer;  at  the  time  of  the  fall,  she  was  not \nperforming any work-related duties.  In the case at bar, claimant slipped before she had entered the \nbuilding where she works, and thus had not clocked in or begun providing employment services to \nher employer at the time of her fall.   \n In closing remarks, claimant urged that she could collect benefits under the “positional risk” \ndoctrine, a theory of recovery not advanced in Webster.   However, I disagree that doctrine would allow \nclaimant to collect under these facts. The back entrance was marked “for employees only,” but that \nsign  was  to  prevent  the  public  from  using  that  door.    Claimant  conceded  that  she would  not  have \nviolated company policy had she entered some way other than the back door to the building; it was \napparent from the testimony and the photograph of the building that using that entry was simply more \nconvenient for the employees than going around to the front door.  \n As claimant failed to prove by a preponderance of the evidence that her injury arose out of \nand in the course of her employment, the other issues raised in this matter are moot.    \nORDER \n \n Claimant has failed to meet her burden of proving by a preponderance of the evidence that \nshe suffered a compensable injury to her thoracic spine on or about February 1, 2023. Therefore, her \nclaim for compensation benefits is hereby denied and dismissed. \nRespondent  is  responsible  for  paying  the  court  reporter  her  charges  for  preparation  of  the \nhearing transcript. \n IT IS SO ORDERED. \n \n                                                                                              \n_______     \n JOSEPH C. SELF \nADMINISTRATIVE LAW JUDGE","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H300753 LAUREN E. KELLEY, Employee CLAIMANT DENTAL HEALTH ASSOCIATES OF ARKANSAS P.A., Employer RESPONDENT TRAVELERS INDEMNITY COMPANY, Carrier RESPONDENT OPINION FILED SEPTEMBER 21, 2023 Hearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Fort Smith,...","fetched_at":"2026-05-19T23:03:00.613Z","links":{"html":"/opinions/alj-H300753-2023-09-21","pdf":"https://labor.arkansas.gov/wp-content/uploads//KELLEY_LAURENE_H300753_20230921.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}