{"id":"alj-H301211-2024-01-08","awcc_number":"H301211","decision_date":"2024-01-08","opinion_type":"alj","claimant_name":"Wesley Givens","employer_name":"J.E.L. Enterprises, LLC","title":"GIVENS VS. J.E.L. ENTERPRISES, LLC AWCC# H301211 January 8, 2024","outcome":"denied","outcome_keywords":["affirmed:1","modified:1","granted:1","denied:3"],"injury_keywords":["neck","cervical","back","lumbar","shoulder","knee","concussion","fracture"],"pdf_url":"https://www.labor.arkansas.gov/wp-content/uploads/GIVENS_WESLEY__H301211_20240108.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"GIVENS_WESLEY__H301211_20240108.pdf","text_length":42229,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H301211 \n \nWESLEY C. GIVENS,  \nEMPLOYEE          CLAIMANT \n \nJ.E.L. ENTERPRISES, LLC,  \nd/b/a PLANT SERVICES OF  \nNORTH LITTLE ROCK,  \nEMPLOYER                 RESPONDENT \n \nAUTO OWNERS INS. CO., \nINS. CARRIER/TPA               RESPONDENT \n \n \nOPINION FILED JANUARY 8, 2024 \n \nHearing   conducted on   October   10,   2023, before  the  Arkansas  Workers’  Compensation \nCommission (the Commission), Administrative Law Judge (ALJ) Mike Pickens, in Little Rock, \nPulaski County, Arkansas.  \n \nThe claimant was represented by the Honorable Laura Beth York, Rainwater, Holt & Sexton, Little \nRock, Pulaski County, Arkansas.  \n \nThe  respondents  were represented  by  the  Honorable Randy P. Murphy,  Anderson,  Murphy, \nHopkins, Little Rock, Pulaski County, Arkansas. \n \n \nINTRODUCTION \n \nIn the prehearing order filed August 2, 2023, the parties have agreed to the following \nstipulations, which they modified and affirmed on the record at the hearing:   \n1. The Arkansas Workers’ Compensation Commission (the Commission) has \njurisdiction over this claim. \n2.  The  employer/employee/carrier-TPA  relationship  existed  with  the  claimant  at  all \nrelevant  times  including  December  15,  2022,  when  the  claimant  alleges  he \nsustained compensable injuries to his head, neck/cervical spine, lower back/lumbar \nspine, right shoulder, and right knee. \n \n3.    The claimant’s average weekly wage (AWW) was $442.45, which corresponds to \n   weekly indemnity rates of $295.00 for temporary total disability (TTD), and $221 \n   per week for permanent partial disability (PPD) rates if the claim is deemed \n   compensable. \n\nWesley C. Givens, AWCC No. H301211 \n \n \n \n2 \n \n4. The respondents have controverted this claim in its entirety.  \n \n5. The parties specifically reserve any and all other issues for future determination \n            and/or determination.   \n(Commission Exhibit 1 at 1-2; Reporter’s Transcript at 156-57). Pursuant to the parties’ mutual \nagreement the issues litigated at the hearing were:                                             \n1. Whether the  claimant sustained  compensable  injuries  within  the  meaning  of  the \nArkansas Workers’ Compensation Act (the Act) to his head, neck/cervical spine, \nlower back/lumbar spine, right shoulder, and right knee, on December 15, 2022. \n \n2. If the claimant’s alleged injuries are deemed compensable, the extent to which he \nis entitled to medical and indemnity benefits. \n \n3. Whether the claimant’s attorney is entitled to a controverted fee on these facts. \n \n4. The parties specifically reserve any and all other issues for future litigation and/or \ndetermination. \n \n(Comms’n Ex. 1 at 2; RT. 157). \n \n \n The  claimant  contends that  on  December  15,  2022, he  was involved  in  a  motor  vehicle \naccident (MVA) within the course and scope of his employment. The claimant contends he was \ndriving his employer’s vehicle when  the  MVA  occurred,  and  he sustained  injuries  to  his head, \nneck/cervical  spine, lower back/lumbar  spine,  right  shoulder, and  right  knee as  a  result  of  the \nsubject MVA. The claimant further contends the respondent-employer, J.E.L. Enterprises (JEL), \nfirst refused to file a claim, so the claimant filed a Form AR-C on February 23, 2023, and thereafter \nthe respondents denied the claim in its entirety. The claimant contends he was forced to obtain his \n\nWesley C. Givens, AWCC No. H301211 \n \n \n \n3 \nown medical treatment which included an MRI of his lumbar spine which revealed disc herniations \nat L3-4, L4-5, L5-S1; an MRI to his right shoulder which revealed tears; an MRI of his brain which \nrevealed a diffuse traumatic brain injury; and an MRI of his cervical spine which revealed a disc \nherniation at C5-6. The claimant contends he has undergone a rhizotomy for his cervical spine and \nhis lumbar spine injuries; an arthroscopic surgery to his right shoulder; he has been diagnosed as \nhaving post-concussion syndrome;  and  his  doctor  has  recommended  he  undergo  an  anterior \ncervical  discectomy  and  fusion  (ACDF)  at C5-6,  all  as  a  direct  result  of  the  subject  MVA. \nTherefore, the claimant contends he is entitled to payment of his medical and related expenses; to \nTTD benefits from December 16, 2022, through a date yet to be determined; and that his attorney \nis entitled to a controverted attorney’s fee. The claimant reserves the right to plead further upon \nthe completion of necessary and appropriate investigation and discovery; and specifically reserves \nany and all other issues for future determination and/or litigation. (Comms’n Ex. 1 at 2-3; RT. 157-\n58). \n The respondents contend the claimant was not performing “employment services” at the \ntime of the subject MVA. The respondents further contend the claimant cannot meet his burden of \nproof pursuant to the Act in demonstrating he sustained any compensable injuries within the course \nand scope of his employment with JEL. The respondents reserve the right to plead further upon \nthe completion of necessary and appropriate investigation and discovery; and specifically reserve \nany and all other issues for future determination and/or litigation. (Comms’n Ex. At 3; RT. 158). \nThe record consists of the hearing transcript and any and all exhibits contained therein or \nattached thereto, as well as the parties’ blue-backed briefs. \n\nWesley C. Givens, AWCC No. H301211 \n \n \n \n4 \n   STATEMENT OF THE CASE \nThe  claimant, Mr.  Wesley  C.  Givens  (the  claimant)  is 63  years  old.  He worked  for the \nrespondent-employer, Plant Services, from May 2016, to December 2022. He has worked in the \nplant servicing business for approximately 30 years, and has known Ms. Jane Ellen Lanning, the \nowner  of  Plant  Services, since  they worked  together  at Tipton-Hurst Florists in  the  1990s. The \nclaimant’s job at Plant Services required him to service (examine, water, feed, etc.) plants in the \nLittle Rock area, and he usually worked approximately three (3) days per week, with some days \nrequiring only a few hours of work. Plant Services provided the claimant a list of the customers \nwhose plants he was to service, but the claimant was in control of his daily route and schedule, \nand  the  claimant  used  his  own  vehicle,  which  he  had  purchased  from  Plant  Services,  for  work. \n(RT. 12-20).   \n The claimant testified that on Thursday, December 15, 2022, the day of the subject MVA, \nhe planned to service plants at the Park Plaza Mall, then travel to Corky’s BBQ on Bowman Road \nin West Little Rock, and from there to Parker Lexus which is near Corky’s. He said he had just \ncompleted servicing plants at the Park Plaza Mall when he was involved in a MVA at the corner \nof  West  Markham  and  North  McKinley  streets around  9:30  a.m. Concerning  how  the  MVA \noccurred the claimant testified he had just left the mall and was traveling on N. McKinley towards \nW. Markham. He said he came to a complete stop at the stop sign located at the intersection of N. \nMcKinley and W. Markham, and that as he was turning right onto W. Markham from N. McKinley \nanother car that was traveling west on W. Markham struck his car about midway on the driver’s \nside. The emergency room records from CHI St. Vincent Infirmary indicate the “impact speed was \n\nWesley C. Givens, AWCC No. H301211 \n \n \n \n5 \n< 30 mph.” (RT at 20-25; Claimant’s Exhibit 1 at 6; CX2 at 3-5). The claimant was wearing a seat \nbelt with both shoulder and lap restraints, and the collision did not cause his car’s airbag to deploy. \n(RT. 20-26; 88; 91). The claimant testified when the other car hit the driver’s side of his car, his \nbody was thrown to the right across the console and into his passenger seat. (RT 20-26; 88; 91).  \nImmediately after the MVA the claimant sent a group text to Ms. Lanning, the owner of \nPlant  Services,  and  to  his  co-worker,  Ms.  Teresa  Bailey,  notifying  them  of  the  accident.  The \nclaimant said all of the paperwork documenting his work routes and time were inside his car at the \ntime of the collision, and that Ms. Lanning and her partner, Ms. Wanda Yarber, came to the scene \nand retrieved items that were in the car. An ambulance was called and it took the claimant on the \nshort ride from the accident scene to the St. Vincent ER (the ER). Thereafter, Ms. Lanning and \nMs. Yarber went to St. Vincent to see about the claimant. (RT. 27).  \nThe claimant admitted on both direct and cross-examination he never reported a workers’ \ncompensation claim to Ms. Lanning based on the 12/15/2022 MVA. (RT. 58). He further admitted \nhe did not ask Ms. Lanning or her workers’ compensation carrier to provide him any medical \ntreatment, and that he obtained the subject medical treatment on his own. (RT. 58). Ms. Lanning \ntestified the claimant told her he was finished with work after he serviced the plants at Park Plaza \nMall, and he was headed home. The claimant testified he does not remember telling Ms. Lanning \nthis,  but  admitted  he  may  have  done  so.  (RT.  133-34;  RT.  61-63).  Ms.  Lanning  testified  that \nalthough the claimant was supposed to turn-in his route/time log sheets every day, he was not very \ngood at doing so, and it was not unusual for him to accumulate log sheets for a number of days \nbefore turning them in. (RT. 131-32). Ms. Lanning testified she did not recall seeing any log sheets \n\nWesley C. Givens, AWCC No. H301211 \n \n \n \n6 \nin the claimant’s car when she and Ms. Yarber retrieved the claimant’s personal items from the \ncar following the 12/15/2022 MVA. (RT. 127-34). The claimant was responsible for completing \nand turning in the log sheets; but the only log sheets introduced into evidence at the hearing stop \nat December 6, 2022, and reveal the claimant often was finished with the route in question by 10 \na.m. (Respondents’ Exhibit 1 at RT. 332-430;  RT.  64-70).  Ms.  Lanning  testified  she  does  not \ndispute the claimant serviced the plants at Park Plaza Mall immediately before the accident; but it \nis her testimony the claimant told her he was finished with work and was headed home at the time \nof the MVA. (RT. 132-33).     \nIn addition to describing the claimant’s pain as “minimal” and noting the absence of any \nbleeding,  the  ER  records of  12/15/2022 reveal  his  chief  complaints  were some  neck,  back,  and \nmuscle pain and tenderness, as well as left shoulder pain. (CX1 at 6-7). The claimant disputed the \naccuracy of the ER records and testified he told the ER personnel he had injured his right and not \nhis  left  shoulder.  (RT.  32).  The  ER  records  of  12/15/2022  also  note  that  examination  of  the \nclaimant’s other body systems were all normal (except for the complaints of pain and tenderness \nmentioned above);  that  the  claimant  was,  “Alert,  no  acute  distress”;  his  head  was, \n“Normocephalic”; his, “Pupils are equal, round, and reactive to light, extraocular movements are \nintact, normal conjunctiva”; and noted his musculoskeletal examination showed, “Normal ROM, \nnormal strength.” (CX1 at 7).  \nA CT test of the claimant’s cervical spine performed on the same day as the accident – \n12/15/2022 – and the CT report states the CT showed, “Normal alignment of the cervical spine”, \nand, “no fracture or subluxation.” (CX1 at 9). The CT report further states, “There is some \n\nWesley C. Givens, AWCC No. H301211 \n \n \n \n7 \ndegenerative spurring at C4-5, C5-6 and C6-7. Degenerative facet hypertrophy is present to a mild \ndegree at cervical levels.” (CX1 at 9). The ultimate “Impression” of the CT scan report states: \n“There is some degenerative change of the cervical spine but no fracture or subluxation.” (CX1 at \n9).  \nAlso, on the same day of the MVA – 12/15/2022 – the claimant underwent a CT scan of \nhis lumbar spine, the report of which states: “Normal  alignment  of  the  lumbar  spine  is  present. \nThere  is  some  anterior  degenerative  spurring  at  T11-12  through  L3-4.  Degenerative  facet \nhypertrophy is present at L3-4 through L5-S1. There is no fracture or subluxation.” (CX1 at 10). \nThe  “Impression”  section  concludes  the  lumbar  CT  report,  stating:  “Advanced  degenerative \nchange of the lumbar spine as discussed above but no fracture or subluxation.” (CX1 at 10).  \nOn  cross-examination  the  claimant,  who  has  participated  in  rodeos  through  the  years, \ndenied ever having injured his right shoulder while rodeoing, and he denied he had been taking \nany medication for his right shoulder before the 12/15/2022 MVA. He admitted he did wear a back \nbrace on his lower back even before the subject MVA, but he said he did so, “to help just so I \ndidn’t have an injury.” (RT. 82-83). The claimant also said he sometimes wore a knee brace when \nhe needed to do so. (RT. 83). \nFinally, on the same day as the MVA – 12/15/2022 – the claimant underwent an AP and \nlateral  X-ray  of  his  left,  not  his  right,  shoulder.  The  X-ray  report  states  the  findings  of  this \ndiagnostic test as follows: “No dislocation is identified. No arthritis is noted. No suspicious \nperiosteal  reaction  or  unexpected  opaque  foreign  body  is  seen.”  (CX1  at  11). Although  the \nclaimant testified, he told the ER physician it was his right, and not his left, shoulder which was \n\nWesley C. Givens, AWCC No. H301211 \n \n \n \n8 \ninjured, there exists no mention in any of the ER records the claimant objected to the X-ray of his \nleft shoulder, or that he requested the physician examine and take an X-ray or perform any other \ndiagnostic  tests,  on  his  right  shoulder.  (RT.  32;  CX1  at  6-11). An  X-ray  report  from  the  Cabot \nEmergency Hospital of the claimant’s right shoulder performed on 1/28/2023 – over one (1) month \nafter the subject 12/15/2022 MVA found:  \nIMPRESSION: \n1. No fracture or dislocation of the right shoulder.  \n2. Osteoarthritis of the acromioclavicular and glenohumeral joints noted. \n(CX1 at 42).     \nThe  MVA  occurred  at  approximately  9:30  a.m.  on  Thursday,  12/15/2022  and,  after  the \nclaimant  was  examined  and  underwent  the  aforementioned  diagnostic tests, he  was  discharged \nfrom the hospital with no further treatment recommended at 12:02 p.m. the same day as the MVA \n– 12/15/2022. (CX1 at 8; RT. 27). \nThe claimant testified that after his immediate release from the hospital over the course of \nthe next few days is pain worsened. (RT 33-35). He said he began peeing blood and could not eat. \n(RT. 35).  The  following  Monday,  12/19/2022 (after  the  MVA  which  occurred  on  Thursday, \n12/15/2022), the claimant said he was walking down the hallway at home when his legs suddenly \ngave out. He said he was able to drag himself to his front door and open it, as he knew that Jane \nLanning was coming to pick him up soon. When Ms. Lanning arrived, she called an ambulance. \n(RT. 36). This time, the ambulance took the claimant to Baptist Hospital, where he was examined \nand given a catheter and, once again, immediately discharged to return home without any further \n\nWesley C. Givens, AWCC No. H301211 \n \n \n \n9 \ntreatment recommended. (RT. 35-38; CX1 at 20-30).  \nOn March 31, 2023, the claimant underwent arthroscopic surgery on his right, not his left, \nshoulder surgery and, according to his testimony, his right shoulder recovered well following the \nsurgery. The claimant testified that he also underwent a lumbar laminectomy on August 17, 2023, \nby Dr. Boddu and is still receiving follow-up treatment. Claimant testified that Dr. Boddu has also \nrecommended  a  cervical  fusion  to  be  performed  after  he  recovers  from  the  lumbar  surgery.   \nAccording to the claimant, while he remains symptomatic, he is reluctant to have another surgery \nand will seek a second opinion. (RT.   \nOn 1/23/2023 – again over one (1) month after the subject MVA – of his own accord the \nclaimant presented himself to Kay Lynn Brunt, PA-C on his own when he was not contacted by a \nworkers’ compensation adjuster. Brunt noted that the claimant presented with post-concussion \nsymptoms, low back, neck, and right shoulder complaints. (CX1 at 31-40; RT. 199-209). An MRI \nof the claimant’s brain at that time revealed:    \n1. Multiple T2 and FLAIR hyperintense foci in bilateral frontal, parietal, parietooccipital \nwhite matter and pons, suggestive of UBOs (unidentified bright object) / non-specific \nlacunes. Periventricular white matter hyperintensity. These can be seen in patients \nwith chronic small vessel ischemic disease or can be seen in patient with headaches. \nPlease correlate clinically.  \n  \n2. Mild cerebral and cerebellar atrophy. \n  \n3. Partially empty Sella. \n  \n4. Mild tortuosity of the cavernous portions of both the internal carotid arteries. \n  \n5. Incidental note is made of minimal mucosal thickening in bilateral mastoid air cells.  \n \n6. Mild mucosal thickening in ethmoid air cells and maxillary sinuses.  \n \n\nWesley C. Givens, AWCC No. H301211 \n \n \n \n10 \n(CX1, 45-52; RT; 213-220). \n \nThe claimant testified on cross-examination he had looked for an attorney to represent him \nin a third-party lawsuit against the driver of the other car involved in the 12/15/2022 MVA which \nis the subject of this claim for workers’ compensation benefits, and testified the Rainwater, Holt & \nSexton law firm (the Rainwater Firm) was representing him in the matter and that they already had \nfiled a third-party lawsuit against the other driver on his behalf. The claimant testified that after he \nretained the Rainwater Firm, his lawyer set-up an appointment with a doctor, who had then referred \nhim to other doctors. (RT. 77-78).     \n \nDISCUSSION \n \nThe Burden of Proof \n When deciding any issue, the ALJ and the Commission shall determine, on the basis of the \nrecord  as  a  whole,  whether  the  party  having  the  burden  of  proof  has  established  it  by  a \npreponderance of the evidence. Ark. Code Ann. § 11-9-704(c)(2) (2023 Lexis Replacement). The \nclaimant has the burden of proving by a preponderance of the evidence he is entitled to benefits. \nStone v. Patel, 26 Ark. App. 54, 759 S.W.2d 579 (Ark. App. 1998). Ark. Code Ann. Section 11-\n9-704(c)(3) (2023 Lexis Repl.) states that the ALJ, the Commission, and the courts “shall strictly \nconstrue” the Act, which also requires them to read and construe the Act in its entirety, and to \nharmonize its provisions when necessary. Farmers Coop. v. Biles, 77 Ark. App. 1, 69 S.W.2d 899 \n(Ark.  App.  2002).  In  determining  whether  the  claimant  has  met  his  burden  of  proof,  the \n\nWesley C. Givens, AWCC No. H301211 \n \n \n \n11 \nCommission is required to weigh the evidence impartially without giving the benefit of the doubt \nto either party. Ark. Code Ann. § 11-9-704(c)(4) (2023 Lexis Repl.); Gencorp Polymer Products \nv. Landers, 36 Ark. App. 190, 820 S.W.2d 475 (Ark. App. 1991); Fowler v. McHenry, 22 Ark. \nApp. 196, 737 S.W.2d 633 (Ark. App. 1987). \nAll claims for workers’ compensation benefits must be based on proof. Speculation and \nconjecture, even if plausible, cannot take the place of proof. Ark. Dep’t of Corrections v. Glover, \n35 Ark. App. 32, 812 S.W.2d 692 (Ark. App. 1991); Deana Constr. Co. v. Herndon, 264 Ark. 791, \n595 S.W.2d 155 (1979). It is the Commission’s exclusive responsibility to determine the credibility \nof the witnesses and the weight to give their testimony. Whaley v. Hardees, 51 Ark. App. 116, 912 \nS.W.2d 14 (Ark. App. 1995). The Commission is not required to believe either a claimant’s or any \nother witness’s testimony, but may accept and translate into findings of fact those portions of the \ntestimony it deems believable. McClain v. Texaco, Inc., 29 Ark. App. 218, 780 S.W.2d 34 (Ark. \nApp. 1989); Farmers Coop. v. Biles, supra.  \nThe  Commission  has  the  duty  to  weigh  the  medical  evidence  just  as  it  does  any  other \nevidence,  and  its  resolution  of  the  medical  evidence  has  the  force  and  effect  of  a  jury  verdict. \nWilliams v. Pro Staff Temps., 336 Ark. 510, 988 S.W.2d 1 (1999). It is within the Commission’s \nprovince  to  weigh  the  totality  of  the  medical  evidence  and  to  determine  what  evidence  is  most \ncredible given  the  totality  of  the  credible  evidence  of  record. Minnesota Mining & Mfg’ing v. \nBaker, 337 Ark. 94, 989 S.W.2d 151 (1999). \n \n \n\nWesley C. Givens, AWCC No. H301211 \n \n \n \n12 \nEmployment Services \nBefore the issue of compensability is addressed, the threshold issue to be decided in this \nclaim is whether the claimant was engaged in “employment services” at the time of the subject \nMVA. Ark. Code Ann. Section 11-9-102(4)(B)(iii) (2021 Lexis Repl.) specifically excludes from \nthe definition of “compensable injury” an “injury which was inflicted upon the employee at a time \nwhen   employment   services   were   not   being   performed....” An   employee   is   performing \n“employment services” when he or she “is doing something  that  is generally  required  by  her \nemployer.” White v. Georgia-Pacific Corp., 339 Ark. 474,478, 6 S.W.3d 98, 100 (1999) (Emphasis \nadded). The  test our  appellate  courts  have  landed  on  in determining  whether an employee  was \nperforming employment-related services at the time of an injury is, “whether the injury occurred \nwithin the time and space boundaries of the employment, when the employee [was] carrying out \nthe employer’s purpose or advancing the employer’s interest directly or indirectly.” Pifer v. Single \nSource Trans., 347 Ark. 851, 69 S.W.3d 1 (2002) (Bracketed material and emphasis added); and \nCurtis v. Lemna, 2013 Ark. App. 646, 430 S.W.3d 180 (Ark. App. 2013). \nIn summary, Arkansas’s appellate courts have interpreted the term “employment services” \nas performing  a  duty(ies) the  employer  generally  requires,  and  that  benefit  the  employer  in  a \ntangible way. See, Pfifer and Curtis, supra. In other words, our appellate courts use the same test \nto determine whether an employee is engaged in “employment services” at the time of an alleged \nwork incident as they do when determining whether an employee was acting “within the course \nand scope” of  their  employment. Id. The  test  is whether the claimant’s alleged injury occurred \nwithin the time and space boundaries of the employment, when the employee was carrying out the \n\nWesley C. Givens, AWCC No. H301211 \n \n \n \n13 \nemployer’s purpose or advancing the employer’s interest directly or indirectly. Id. \nLikewise, Arkansas workers’ compensation law has long held that an employee traveling \nto  and  from  work  is  generally  said not to  be  acting  within  the  course  of  employment. Olsen \nKimberly Quality Care v. Pettey, 328 Ark. 381, 944 S.W.2d 524 (1997). This “going and coming” \nrule ordinarily precludes a claimant from receiving workers’ compensation benefits when he is \ntraveling to or coming from his place of employment. Id. Of course, the rationale behind this rule \nis that an employee is not within the course of employment while traveling to or from his job. Id. \nThe threshold  test  of  whether  or  not  an  injury(ies)  may  be  deemed  work-related is  whether  the \ninjury(ies) occurred, “within the time and space boundaries of employment, when the employee \nwas carrying out the employer’s purpose or advancing the employer’s interest either directly or \nindirectly.” White v. Georgia-Pacific Corp., 339 Ark. 474, 6 S.W.3d at 100 (1999).  \nBased on the applicable law as applied to the relevant facts herein, I find the claimant has \nfailed to meet his burden of proof in demonstrating he was engaged in “employment services” at \nthe time of the subject 12/15/2022 MVA. \n First, the claimant’s own testimony in this regard is revealing. Indeed, the claimant’s own \ntestimony lends support to a finding he was not in fact engaged in employment services at the time \nof the incident. The claimant testified at the hearing he had completed servicing his clients at Park \nPlaza Mall and was traveling in his vehicle when the accident occurred. Significantly, the claimant \nadmitted he “might have” told Jane Lanning at the hospital that he was done working for the day \nand was going home at the time the MVA occurred. Concerning this issue, the claimant testified \nas follows: \n\nWesley C. Givens, AWCC No. H301211 \n \n \n \n14 \nQ. Let me state it this way: did you tell Jane and Wanda that you were done for \nthe day and you were going home? \nA. Not that I remember. \nQ. Okay. Could you have said that to them at that time? \nA. I might’ve but I cannot remember it. \n(RT. 59, Line 24; RT. 60, ln. 5). \n \n \n Second,  the  evidence  at  the  hearing  established the  claimant  was  required  to  keep  daily \nlogs documenting his service calls. The daily logs, which were introduced into the hearing record, \nshowed that the last daily log provided by the claimant is dated December 6, 2022. The claimant \ntestified he  kept  the  daily  logs,  along  with  other  items,  in  his  vehicle  before  eventually  turning \nthem into the office. The credible evidence reveals Ms. Lanning and Ms. Yarber cleaned-out the \nclaimant’s car  after  the  MVA, and  that Ms.  Lanning delivered put  the  items  that  were  in  the \nclaimant’s  car in  plastic  containers,  or  totes,  and  delivered  them to  the  claimant’s  address. \nConcerning the issue of the lack of evidence from the log books demonstrating where the claimant \nmay have been going after he left the mall at the tome of the 12/15/2022 MVA, once again the \nclaimant’s own testimony is revealing: \nQ. Okay. I understand. But on this particular date you would have had, in addition \nto the other items that you described, you said groceries and water and snacks, \na clipboard – \n \nA. Right. \n \nQ. -- with your daily logs.  \n \nA. Right. \n\nWesley C. Givens, AWCC No. H301211 \n \n \n \n15 \n \nQ. Okay.  And you don’t’ know what happened to those daily logs? \n \nA. No. \n \nQ. All right. Now, while you were at the emergency room or at the hospital, Jane \nand Wanda cleaned out all your personal items from the car, right? \n \nA. Mm-hm. \n \nQ Yes? \n \nA. Yes. \n \nQ. And they were placed in two plastic storage containers. Is that your \n    understanding? \n \nA. Yes. \n \nQ. Did you see those plastic storage containers? \n \nA. Yes. \n \nQ. And  when  Jane  and  Wanda  drove  you  home – this  was  when  you  were  still \nliving with Dr. Richard Jordan, right? \n \nA. Right. \n \nQ. Okay. The carried  those  items,  including  the  plastic  containers,  down  to  the \nbasement and left them there. \n \nA. Yes. \n \nQ. Have you gone back in to look at those plastic containers – \n \nA. Yes, -- \n \nQ. -- to see – \n \nA. -- I have, and the paperwork was not there. \n \nQ. Okay. \n\nWesley C. Givens, AWCC No. H301211 \n \n \n \n16 \n \nA. And stuff got water on it and you couldn’t read it because it got ruined from \nthe water that was in the totes. \n \nQ. Were the daily logs in there? \n \nA. It was just white pieces of paper that I couldn’t read. \n \nQ. Okay. All right. Could those have been the daily logs destroyed? \n \nA. It could have been the daily logs. \n \n(RT. 61, Line 12 – RT 63, ln. 5). \n \n \n Third, Ms. Lanning, the owner of Plant Services, testified credibly at the hearing regarding \nthe claimant’s  employment  history,  as  well  as  the events and  conversations  that  occurred \nimmediately after the 12/15/2022 MVA. Ms. Lanning confirmed that the last daily log the claimant \nturned-in turned  in was for  the  work  day  of December  6,  2022. (RT.  132.).  Concerning  her \nconversation  with  the  claimant at  the  ER immediately  following  the  MVA  as  to  where  he  was \ngoing at the time of the accident on 12/15/2022, Ms. Lanning testified as follows: \nQ. And did Mr. Givens make any statement about where he had been or where he \nwas going or what his activities were? \n \nA. He  said – he  said  that  he  was  leaving  Park  Plaza  to  go  home  and  out  of \nnowhere, boom, this lady just hit him. \n \nQ. Okay.    He told you he had been to Park Plaza? \n  \nA. Mm-hm. \n \nQ. Is that right? \n \nA. Yes. \n \nQ. You don’t have any reason to dispute that, do you? \n\nWesley C. Givens, AWCC No. H301211 \n \n \n \n17 \n \nA. No. \n \nQ. Okay. \n \nA. They [Park Plaza] have a sign-in log. I’ve – I’ve seen it. \n \nQ. All right. But he [the claimant] told you he was leaving there and going home? \n \nA. Yes. \n \nQ. Okay.    Did he ever say anything else about the accident other than boom and \nthere was an impact? \n \nA. Other than, you know, that his shoulder was sore. \n \nQ. Okay. \n \nA. He complains after the accident where his shoulder was sore? \n \nQ. Yes, his left shoulder. \n \n(RT. 132, ln. 12 – RT 133, ln. 20) (Bracketed material added). \n \n \n The threshold issue in this case is whether the claimant has met his burden of proof \nin  demonstrating  he  was  engaged  in  performing  employment  services  at  the  time  of  the \nsubject 12/15/2022 MVA. This burden is the claimant’s, and the claimant alone. Prior to \nthe passage of Act 796 the tie went to the runner: i.e., the law required the fact finder to \ngive the claimant “the benefit of the doubt” when evidence was unclear and/or ambiguous, \netc. That is not the case under Act 796. \n        In this case, at best the claimant’s testimony concerning the employment services \nissue is unclear and contradictory. See, supra. At worst, the preponderance of the evidence \nreveals the claimant admitted he told, or he “might have” told, Ms. Lanning he had finished \n\nWesley C. Givens, AWCC No. H301211 \n \n \n \n18 \nhis work for the day the claimant admitted to Jane Lanning following the accident that he \nhad  completed  work  and  was  going  home  at  the  time  of  the  accident. On  these  facts  it \nwould constitute sheer speculation and conjecture to find the had met his burden of proof \nas  required  by  Act  796  in  demonstrating  he  was  engaged  in  employment  services  at  the \ntime of the 12/15/2022 MVA; and speculation and conjecture cannot and do not support a \nclaim for benefits pursuant to the Act. See, Deana, supra.  \nCompensability \nMoreover, even if the claimant had met his burden of proof on the threshold issue herein, \nthe  preponderance  of  the  evidence reveals  he  has  failed  to  meet  his  burden  of  proof  in \ndemonstrating  any and/or  all of  the  alleged  injury(ies) to  his  neck/cervical  spine,  lower \nback/lumbar spine, and/or his left shoulder were related to the 12/15/2022 MVA. In order to find \nand and/or all of the claimant’s alleged injuries compensable based on these facts a factfinder must \nignore the applicable law and contort the clear medical evidence of record.  \nFor  any  specific-incident  injury  to  be  compensable,  the  claimant  must  prove  by  a \npreponderance of the evidence that his injury: (1) arose out of and in course of his employment; \n(2) caused internal or external harm to his body that required medical services; (3) is supported   \nby objective findings, medical evidence, establishing the alleged injury; and (4) was caused by a \nspecific  incident  identifiable  by  time  and  place  of  occurrence. Ark.  Code  Ann.  §  11-9-102(4); \nCossey v. Gary A. Thomas Racing Stable, 2009 Ark. App. 666, at 5, 344 S.W.3d 684, 687 (Ark. \nApp.  2009). Of  course,  the  claimant  bears  the  burden  of  proving  the  compensable  injury  by  a \npreponderance of the credible evidence. Ark. Code Ann. § 11-9-102(4)(E)(i); and Cossey, supra.  \n\nWesley C. Givens, AWCC No. H301211 \n \n \n \n19 \n“Objective findings” are those findings which cannot come under the voluntary control of \nthe patient. Ark. Code Ann. § 11-9-102(16)(A); Long v. Wal-Mart Stores, Inc., 98 Ark. App. 70, \nat  80  250  S.W.3d  263,  at  272 (Ark.  App.  2007).  Objective  findings, “specifically exclude such \nsubjective complaints or findings such pain, straight-leg-raising tests, and range-of-motion tests.” \nBurks  v.  RIC,  Inc.,  2010  Ark.  App.  862  (Ark.  App.  2010).  Objective  medical  evidence  is  not \nessential to establish a causal relationship between the work-related accident and the alleged injury \nwhere objective medical evidence exists to prove the existence and extent of the underlying injury, \nand a preponderance of other nonmedical evidence establishes a causal relationship between the \nobjective  injury  and  the  work-related  incident(s) in  question. Flynn  v.  Southwest  Catering  Co., \n2010  Ark.  App.  766,  379  S.W.3d  670  (Ark.  App.  2010). Moreover,  the  claimant  must  prove  a \ncausal relationship exists between her employment and the alleged injury. Wal-Mart Stores, Inc., \nv. Westbrook, 77 Ark. App. 167, 171, 72 S.W.3d 889, 892 (Ark. App. 2002) (citing McMillan v. \nU.S. Motors, 59 Ark. App. 85, 90, 953 S.W.2d 907, 909 (Ark. App. 1997)).  \nConcerning the proof required to demonstrate the aggravation of a preexisting condition, \nour appellate courts have consistently held that since an aggravation is a new injury, a claimant \nmust prove it by new objective evidence of a new injury different than the preexisting condition. \nVaughn  v.  Midland  School  Dist.,  2012  Ark.  App.  344  (Ark.  App.  2012)  (citing Barber  v.  Pork \nGrp., Inc., 2012 Ark. App. 138 (Ark. App. 2012); Grothaus v. Vista Health, LLC, 2011 Ark. App. \n130, 382 S.W.3d 1 (Ark. App. 2011); Mooney v. AT & T, 2010 Ark. App. 600, 378 S.W.3d 162 \n(Ark.  App.  2010)  (Emphases  added.).  Where  the  only  objective  findings  present  are  consistent \nwith prior objective findings or consistent with a long-term degenerative condition rather than an \n\nWesley C. Givens, AWCC No. H301211 \n \n \n \n20 \nacute  injury,  this  does  not  satisfy  the  objective  findings  requirement  for  the  compensable \naggravation  of  a  preexisting  condition  injury. Vaughn,  2012  Ark.  App.  344,  at  6  (holding  that \nArkansas courts have interpreted the Act to require “new objective medical findings to establish a \nnew injury when the claimant seeks benefits for the aggravation of a preexisting condition”); \nBarber,  supra (affirming the Commission’s denial of an aggravation of a preexisting condition \nclaim where the MRI findings revealed a degenerative condition, with no evidence of, and which \ncould not be explained by, an acute injury) (Emphases added.). In Mooney, 2010 Ark. App. 600 at \n4-6,  378  S.W.3d  at  165-66 (Ark. App. 2010), the court affirmed the Commission’s decision \ndenying a back injury claim where the objective evidence of an injury - including muscle spasms, \npositive EMG test results, and spinal stenosis revealed on an MRI - were all present both before \nand after the date of the alleged aggravation injury. (Emphasis added). \n  First,  while  I  found  the  claimant  to  be  an  amiable  person,  based  on  the  entirety  of  his \ndemeanor  on  the  witness  stand;  the  rather  evasive  way  he  answered  seminal  questions; and his \ntendency in his testimony to exaggerate symptoms in such a way that was obviously inconsistent \nwith the clear preponderance of the relevant objective medical evidence of record, I did not find \nthe claimant’s testimony to be credible or reliable.  \nIndeed, the claimant’s allegation he developed symptoms of an alleged brain injury over \none (1) month after the 12/15/2022 MVA, especially as compared to the brain MRI which shows \nno such condition and is within the range of normality for a person of his age, provides just one \n(1) example of how the claimant’s tendency towards shaping his testimony in such a way so as to \nmake it obviously self-serving, inconsistent with the objective medical evidence and, quite simply, \n\nWesley C. Givens, AWCC No. H301211 \n \n \n \n21 \nincredible. The claimant did not allege any head trauma; and having initially not thought he had \nlost consciousness after the MVA at some point apparently began to think he had done so. The \nclaimant’s head never struck anything; he never complained of any head trauma; and although his \ncar apparently was “totaled” for insurance purposes (which simply means the cost to repair the \ndamage to the car exceeds the “Blue Book”/fair market value (fmv) of the car), the claimant had \nno evidence of head trauma when he was examined at the St. Vincent ER.      \nEven the claimant’s testimony as to what happened to him/his body when the car struck \nthe driver’s side of his vehicle defies the laws of physics. The claimant testified when the car struck \nthe driver’s side of his car, he was thrown across the console and into the passenger seat of his \nown car. Again, if this were true it would contradict the physical laws of the universe, specifically \nNewton’s laws of motion. Pursuant to the conclusively proved and well-settled scientific laws of \nmotion, when a car strikes another car from the left side – i.e., the driver’s side of the car (at least \nas cars are manufactured in the United States, with the steering wheel being on the left side of our \nvehicles) – anybody inside of a car which was struck on the left side would move to the left, and \nnot to the right. This is not only common sense, it is something we all learned in 9\nth\n grade physics \nclass when we learned about Newton’s Laws of Motion; here, specifically, Newton’s First Law of \nMotion, relating to inertia. (If one requires a source for this common sense, fundamental law of \nnature, See, e.g., The Encylopedia Britannica, https://www.britannica.com, “Newton’s Law’s of \nMotion,” as well as Sir Isaac Newton’s Philosophiae  Naturalis  Principia  Mathematica,  first \npublished by Edmond Halley, of Halley’s Comet fame, at  his  own  cost in  1687;  and  as The \nMathematical Principles of Natural Philosophy, 1729, 3\nrd\n Edition).        \n\nWesley C. Givens, AWCC No. H301211 \n \n \n \n22 \nSecond,  and most significantly,  the medical  record  is  grossly  insufficient  of  objective \nevidence which demonstrates any of the claimant’s obviously osteoarthritic, age-related conditions \nwere caused and/or  aggravated by the subject MVA. The  claimant wore  a right knee  and lower \nback brace from time to time even before the MVA; and none of the diagnostic tests the claimant \nunderwent on the day of the accident, Thursday,  12/15/2022 – the CT scans of his cervical and \nlumbar spine, as well as an X-ray of, not his right but his left, shoulder showed no abnormalities \nwhatsoever other than those related to preexisting, age-related osteoarthritis and other age-related \nconditions  which  clearly  are  not  compensable  pursuant  to  the  Act. See,  Vaughan,  Barber, and \nMooney,  supra. None  of  the  aforementioned  and  cited/quoted  objective,  thorough,  appropriate, \nand  relevant  diagnostic  tests  revealed  any  evidence  of  a  new  or  acute  injury  resulting  from  the \nMVA in question. The medical record is devoid of any such objective medical evidence of a new \ninjury/aggravation  which  would  have  necessitated  the  two  (2)  surgeries  the  claimant  has  had  to \ndate (one on his right shoulder and a second – a lumbar laminectomy – on his lumbar spine), nor \nthe apparently recommended cervical surgery for which the claimant said he intends to obtain a \nsecond opinion.  \nFinally, it is noteworthy that on the same day of the accident – Thursday, December 15, \n2022 – after  a  couple  of  hours  undergoing  diagnostic  tests  at  the  hospital  the  claimant  was \ndischarged with no recommendation for any treatment regimen. While the claimant was cognizant \nand aware enough following the accident to send his long-time friend and employer a group text \nadvising her he had been involved in an MVA, he testified under oath he “might have” told her he \nhad finished his work for the day and was on his way home at the time the MVA occurred, and he \n\nWesley C. Givens, AWCC No. H301211 \n \n \n \n23 \nnever inquired of her about filing or asked that she file a workers’ compensation claim or otherwise \nassist him in obtaining medical treatment (although the evidence does seem to reflect Ms. Lanning \ntold her insurance agent about the MVA). Instead, he looked into finding an attorney to file a third-\nparty  lawsuit  against  the  other  driver.  In  their  post-hearing brief, the respondents argue  the \nclaimant’s medical treatment in late January 2023 was “directed” by his attorney in the third-party \nlawsuit, was “delayed” and, therefore, not reasonably necessary treatment related to the MVA \n(presuming the MVA and the alleged injuries were “compensable” within the Act’s definition). \n(Respondents’ Brief at 8; and 7).  \nBased  on  the  aforementioned  law  as  applied  to  the  facts  of  this  case,  I  am  compelled  to \nfind that even if the claimant had met his burden of proof with respect to the “employment \nservices”  issue,  he  has failed  to  meet  his burden  of  proof  in  demonstrating he  injured  his \nneck/cervical spine, lower back/lumbar spine, or his right shoulder and/or right knee in the subject \n12/15/2022 MVA. If the claimant has a legal remedy arising out of the 12/15/2022 MVA, it is in \nthe third-party lawsuit he has filed, and not under Act 796 of 1993. \n \n      Therefore, for all the aforementioned reasons I hereby make the following: \n \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n \n1. The stipulations contained in the prehearing order filed August 2, 2023, which the parties \nmodified and affirmed on the record at the hearing, hereby are accepted as facts. \n \n2. The claimant has failed to meet his burden of proof in demonstrating he was engaged in \nthe performance of employment services at the time of the subject December 15, 2022, \nMVA.    \n \n3. The  claimant  has failed  to  meet  his  burden  of  proof  in  demonstrating  he  sustained a \n\nWesley C. Givens, AWCC No. H301211 \n \n \n \n24 \ncompensable injury(ies) to his lower back/lumbar spine, neck/cervical spine, and/or his \nright shoulder and/or his right knee in the 12/15/2022 MVA.     \n \n4. The claimant’s attorney is not entitled to an attorney’s fee on these facts. \n \n     This claim is hereby denied. If they have not done so already the respondents shall pay the \ncourt reporter’s invoice within twenty (20) days of their receipt of this opinion.  \nIT IS SO ORDERED.  \n  \n \n                                              \n \nMike Pickens \nAdministrative Law Judge \n \n \n \nMP/mp","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H301211 WESLEY C. GIVENS, EMPLOYEE CLAIMANT J.E.L. ENTERPRISES, LLC, d/b/a PLANT SERVICES OF NORTH LITTLE ROCK, EMPLOYER RESPONDENT AUTO OWNERS INS. CO., INS. CARRIER/TPA RESPONDENT OPINION FILED JANUARY 8, 2024 Hearing conducted on October 10, 2023, before...","fetched_at":"2026-05-19T22:58:11.095Z","links":{"html":"/opinions/alj-H301211-2024-01-08","pdf":"https://www.labor.arkansas.gov/wp-content/uploads/GIVENS_WESLEY__H301211_20240108.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}