{"id":"alj-H301483-2023-12-13","awcc_number":"H301483","decision_date":"2023-12-13","opinion_type":"alj","claimant_name":"Elias Chavez","employer_name":"Thompson Construction Group, Inc","title":"CHAVEZ VS. THOMPSON CONSTRUCTION GROUP, INC. AWCC# H301483DECEMBER 13, 2023","outcome":"granted","outcome_keywords":["granted:6","denied:1"],"injury_keywords":["hip","back","fracture"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/Chavez_Elias_H301483_20231213.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Chavez_Elias_H301483_20231213.pdf","text_length":22297,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H301483 \n \nELIAS CHAVEZ, EMPLOYEE CLAIMANT \n \nTHOMPSON CONSTRUCTION GROUP, INC., \nEMPLOYER RESPONDENT \n \nZURICH AMERICAN INSURANCE CO.,  \nCARRIER                       RESPONDENT \n \n \nAMENDED OPINION FILED DECEMBER 13, 2023 \n \nHearing before Administrative Law Judge Steven Porch on October 6, 2023, in Marion, \nArkansas. \n \nClaimant was represented by Mr. Tanner Thomas, Attorney at Law, Little Rock, Arkansas. \n \nRespondents  were  represented  by  Mr.  Jarrod  Parrish,  Attorney  at  Law,  Little  Rock, \nArkansas. \n \nSTATEMENT OF THE CASE \n \n A full hearing was held on this claim on October 6, 2023. Claimant was represented \nby  Mr.  Tanner  Thomas,  Attorney  at  Law,  Little  Rock,  Arkansas;  Respondents  were \nrepresented by Mr. Jarrod Parrish, Attorney at Law, Little Rock, Arkansas. \nSTIPULATIONS \n By agreement of the parties, the stipulations applicable to this claim are as follows: \n1. The Arkansas Workers’ Compensation Commission has jurisdiction \nof the within claim. \n \n2. An   employer/employee/carrier   relationship   existed   among   the \nparties on September 9, 2022, when Claimant allegedly sustained a \ncompensable injury to his left hip. \n \n3. Respondents  initially accepted  this  claim  as  medical-only  and  paid \nsome benefits\n1\n.  \n \n1\n Respondents denied compensability of the hip by letter dated September 29, 2023. This \nis in evidence as Respondents’ Exhibit 3. \n\nCHAVEZ H301483 \n \n2 \n \n \n 4.  The parties  will  stipulate  to  Claimant’s  average  weekly  wage  and \ncompensation rates on or before the hearing date.\n2\n \n \nISSUES \n The parties have identified the following issues to be adjudicated: \n1.  Whether Claimant sustained a compensable injury to his left hip. \n  \n2.  Whether  Claimant  is  entitled  to  any  additional  reasonable  and  necessary \nmedical treatment rendered after January of 2023. \n \n3.  Whether  Claimant  is  entitled  to  additional  temporary  total  disability  benefits \nfrom September 10, 2022, to a date yet to be determined. \n \n4.  Whether  Claimant  is  entitled  to  an  impairment  rating  and  permanent  partial \ndisability benefits. \n \n5.  Whether Claimant is entitled to a controverted attorney’s fee.  \n \nAll other issues are reserved. \n \nCONTENTIONS \n \nClaimant’s Contentions: On September 9, 2022, Claimant, in the course and scope \nof employment with the respondent-employer, was carrying a rail  when he fell from an \nelevated section of the construction site, sustaining a left hip injury.  \nThe Respondent took two months of the Claimant complaining about pain to send \nhim to a doctor, but initially accepted the injury as compensable. Claimant initially was \nprovided treatment from Dr. Sherita Willis, where his complaints were of left hip and low \nback  pain.  Claimant  was  allowed  to  return  to  Dr.  Willis  in  January  of  2023,  where  she \ncited  that  the  Claimant’s  complaints  of  pain  were  chronic  in  nature.  Respondents  then \n \n2\n The Claimant and the Respondent did not stipulate to the average weekly wage and \ncompensation rates at the full hearing. Both parties verbally assured the Commission that they \ncan stipulate to the compensation rates should an award for indemnity benefits be granted. \n\nCHAVEZ H301483 \n \n3 \n \ndenied his claim. \nClaimant was then forced to treat on his own and went to Dr. Rickey Carson, where \nhe complained of low back and left hip pain and was referred to Dr. John Rocco Rodney. \nClaimant underwent an MRI which revealed tears of his bilateral hamstring tendons, the \nleft gluteus minimus and medius tendons, and at the right insertion of the gluteus medius \ntendons. \nClaimant contends that he suffered a compensable injury at work, that he is entitled \nto temporary total disability and medical benefits, and that his attorney is entitled to an \nattorney’s fee. All other issues are reserved. \nRespondent’s  Contentions:  Respondents  contend  that  they  had  accepted  this \nclaim as medical-only. The claimant continued to work for Respondent/Employer through \nMarch  19,  2023,  when  he  was  terminated,  as  is  evidenced  by  the  attached  wage \ninformation. The medical documentation does not support an off-work status beyond that. \nIn  light  of  this,  it  is  Respondents’  position  Claimant  is  not  entitled  to  temporary  total \ndisability benefits. Additionally, the medical records indicate the claimant does not have \nany acute objective findings to support an injury on September 9, 2022. The claimant has \nreceived unauthorized medical treatment with Drs. Rodney and Carson.  \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n After  reviewing  the  record  as  a  whole,  including  medical  reports,  non-medical \ndocuments,  post hearing briefs from  the  parties,  and  other matters  properly  before  the \nCommission,  I  hereby  make  the  following  findings  of  fact  and  conclusions  of  law  in \naccordance with Ark. Code Ann. § 11-9-704 (Repl. 2012):   \n1.  The Arkansas  Workers’  Compensation  Commission  has  jurisdiction  over  this \nclaim.  \n\nCHAVEZ H301483 \n \n4 \n \n \n2.  The stipulations set forth above are reasonable and are hereby accepted.  \n3.  Claimant has proven by the preponderance of the evidence that he sustained \na compensable injury to his left hip on September 9, 2022.  \n \n4.   Claimant has proven by the preponderance of the evidence that he is entitled \nto  reasonable  and  necessary  medical  treatment  in  connection  with  his \ncompensable left hip injury, however he did not prove that the alleged physical \ntherapy  he  underwent  in  Maryland  was  reasonable  and  necessary.  Thus, all \nmedical treatment under Claimant’s Exhibit 1, with the exception of the alleged \nphysical therapy and any treatment for the June 2, 2023, motor vehicle incident \nis reasonable and necessary. \n \n5.   Claimant has  not  proven  by  the  preponderance  of  the  evidence  that  he  is \nentitled to temporary total disability benefits for any period of time. \n \n6.   Because  the  issue  regarding  whether  Claimant  is  entitled  to  an  impairment \nrating  and  permanent  partial  disability  benefits  is  not  yet  ripe,  it  will  be \nconsidered reserved. \n \n7.  Claimant has not proven by the preponderance of the evidence that his attorney \nis entitled to a controverted attorney’s fee. \n \nCASE IN CHIEF \nSummary of Evidence \n The sole witness at the hearing was the Claimant, Elias Chavez. The witness had \nthe  benefit  of  an  interpreter  to  translate  the  proceedings  from  English  to  Spanish.  In \naddition to admitting the pre-hearing order and Claimant’s and Respondents’ post-hearing \nbriefs that were blue-backed, I also have admitted the following into evidence in this case: \nClaimant’s Exhibit 1, a comprehensive exhibit containing  67 pages of  medical records, \nRespondents’ Exhibit 1, a 51-page compilation of medical records; Respondents’ Exhibit \n2, a 16 page non-medical document; and Respondents’ Exhibit 3, a 1 page letter dated \nSeptember 29, 2023. \n \n\nCHAVEZ H301483 \n \n5 \n \nBackground \nClaimant  was  a  rod  buster  for  Respondent/Employer.  A  rod  buster  is  one  who \nconstructs concrete foundations at construction sites. Claimant slipped on some mud on \nthe ground and fell while carrying rebar, injuring the left side of his hip on September 9, \n2022. This occurred during the course and scope of his employment. Claimant reported \nthis incident the same day and was sent home. He did not receive medical treatment for \nhis injury until November 22, 2022, 74 days after the incident. Dr. Sherita Willis noted that \nClaimant had left hip tenderness and limited range of motion and prescribed him Tylenol \nand  Ibuprofen for his  injury. He  was  later  ordered  an  MRI  by  Dr.  John  Rocco  Rodney. \nClaimant received an MRI on March 27, 2023, in Baltimore, Maryland. The physicians at \nCommunity Radiology Associates found a “...2.) Low-grade partial- thickness tears at the \norigins  of  bilateral  hamstring  tendons,  3.)  Low-  grade  partial-  thickness  tears  at  the \ninsertions  of  the  left  gluteus  minimus  and  medius  tendons,  4.)  Low-grade  partial- \nthickness tears at insertion of the right gluteus medius tendon.”  CL Exhibit 1 pages 19-\n21. \nRespondents  initially  accepted  this  claim  as  a  medical-only  one  and  paid  some \nbenefits. Claimant,    while    receiving    these    benefits,    continued    to    work    for \nRespondent/Employer  until  March  21,  2023. He  performed  light  duty  work  such  as \nworking with equipment that bends rods, cut rods, or manually wrap bands around rods. \nWhen these jobs became difficult, he was allowed to pick up scrap. He continued to get \npaid  his  regular  wage.  Claimant  quit  his  job  on  March  21,  2023,  because  he had \nunbearable  pain. He  moved  to  Silver  Springs,  Maryland,  and  was  not  getting  any \nrehabilitation  treatment  for  his  work-related  hip  injury.  The  reason  for  his  not  getting \n\nCHAVEZ H301483 \n \n6 \n \ncontinued rehab treatment for his hip was a lack of insurance. Claimant was questioned \nas to why he did not request workers’ compensation to pay for his rehabilitation. Claimant \nstated  he  signed  some  papers  and  returned  them  to  Respondent  or  the  Commission. \nSince  then,  he  has  not  heard  anything  from  Respondent  or  the  Commission  about \ncontinued treatment on his hip. Moreover, the Claimant could not state what papers he \nsigned nor when they were sent.  \nOn June 2, 2023, Claimant, while walking, was struck on the left side of his hip by \nan automobile and went to the hospital. Claimant  suffered a left leg femur fracture and \nlater  needed  rehab  for  his  left  hip  resulting  from  the  vehicle  incident.  Claimant  further \ntestified that he received Maryland state health insurance six weeks before the vehicle \nincident. No proof was provided proving that Claimant acquired insurance in Maryland. \nWhen testifying about his rehabilitation, Claimant stated he was getting treatment down \nthe outer side of his left leg for the work-related injury. On the other hand, Claimant stated \nhe  was  getting  rehab  treatment  down  the  front  of  his  left  leg  due  to  the  motor  vehicle \nincident.  He  added  that  he  was getting  rehab  treatment  for  his  hip  a  month and  a  half \nbefore the motor vehicle injury. Claimant testified he was getting rehabilitation treatment \nfor the left hip due to both the work injury and the motor vehicle injury. However, the focus \nof treatment for each incident were allegedly in different areas of the left hip.  \nAdjudication \nA. Whether Claimant sustained a compensable left hip injury. \n \nArkansas Code Annotated § 11-9-102(4)(A)(i) (Repl. 2012), which I find applies to \nthe analysis of Claimant’s alleged injuries, defines “compensable injury”: \n(i) An accidental injury causing internal or external physical harm to the body \n.  .  .  arising  out  of  and  in  the  course  of  employment  and  which  requires \n\nCHAVEZ H301483 \n \n7 \n \nmedical services or results in disability or death.  An injury is “accidental” \nonly if it is caused by a specific incident and is identifiable by time and place \nof occurrence[.] \n \nA compensable injury must be established by medical evidence supported by objective \nfindings.  Ark. Code Ann. § 11-9-102(4)(D) (Repl. 2012).  “Objective findings” are those \nfindings that cannot come under the voluntary control of the patient.  Id. § 11-9-102(16).  \nThe  element  “arising  out  of  .  .  .  [the]  employment”  relates  to  the  causal  connection \nbetween the claimant’s injury and his or her employment.  City of El Dorado v. Sartor, 21 \nArk. App. 143, 729 S.W.2d 430 (1987).  An injury arises out of a claimant’s employment \n“when  a  causal  connection  between  work  conditions  and  the  injury  is  apparent  to  the \nrational mind.”  Id. \n If  the  Claimant  fails  to  establish  by a  preponderance  of  the  evidence any  of the \nrequirements  for  establishing  compensability,  compensation  must  be  denied.  Mikel  v. \nEngineered Specialty Plastics, 56 Ark. App. 126, 938 S.W.2d 876 (1997).  This standard \nmeans the evidence having greater weight or convincing force.  Barre v. Hoffman, 2009 \nArk. 373, 326 S.W.3d 415; Smith v. Magnet Cove Barium Corp., 212 Ark. 491, 206 S.W.2d \n442 (1947). \n Claimant’s  testimony  is  never  considered  uncontroverted.   Nix  v.  Wilson  World \nHotel,  46  Ark.  App.  303,  879  S.W.2d  457  (1994).    The  determination  of  a witness’ \ncredibility and how much weight to accord to that person’s testimony are solely up to the \nCommission.  White v. Gregg Agricultural Ent., 72 Ark. App. 309, 37 S.W.3d 649 (2001).  \nThe Commission must sort through conflicting evidence and determine the true facts.  Id.  \nIn so doing, the Commission is not required to believe the testimony of the claimant or \n\nCHAVEZ H301483 \n \n8 \n \nany other witness but may accept and translate into findings of fact only those portions of \nthe testimony that it deems worthy of belief.  Id. \nClaimant has satisfied his burden with objective findings as to his work-related left \nhip  injury  on  September  9,  2022.  The  Claimant  sustained  internal  harm  to his  body. \nClaimant had an MRI of his left hip in Baltimore, Maryland. The physicians at Community \nRadiology Associates found a “...2.) Low-grade partial- thickness tears at the origins of \nbilateral hamstring tendons, 3.) Low- grade partial- thickness tears at the insertions of the \nleft  gluteus  minimus  and  medius  tendons,  4.)  Low-grade  partial-  thickness  tears  at \ninsertion of the right gluteus medius tendon.” CL Exhibit 1 pages 19-21. I credit the MRI \nreport for Claimant’s March 27, 2023, exam date created by the Community Radiology \nAssociates. This  injury  occurred  by a  specific  incident  during  the  scope  and  course  of \nClaimant’s employment when he slipped on some mud on the ground while carrying rebar \nfor the Respondent/Employer. He also needed medical treatment and received an MRI. \nThus,  I  find  by  the  preponderance  of  the  evidence  that  the  Claimant sustained  a \ncompensable left hip injury during the course and scope of his employment on September \n9, 2022.  \n \nB. Whether Claimant is entitled to any additional reasonable and necessary \nmedical treatment rendered after January of 2023. \n \nArkansas  Code  Annotated  Section  11-9-508(a)  (Repl.  2012)  states  that  an \nemployer  shall  provide  for  an  injured  employee  such  medical  treatment  as  may be \nnecessary in connection with the injury received by the employee.  Wal-Mart Stores, Inc. \nv. Brown, 82 Ark. App. 600, 120 S.W.3d 153 (2003).  But employers are liable only for \nsuch treatment and services as are deemed necessary for the treatment of the Claimant’s \n\nCHAVEZ H301483 \n \n9 \n \ninjuries.  DeBoard v. Colson Co., 20 Ark. App. 166, 725 S.W.2d 857 (1987).  The Claimant \nmust prove by a preponderance of the evidence that medical treatment is reasonable and \nnecessary for the treatment of a compensable injury.  Brown, supra; Geo Specialty Chem. \nv. Clingan, 69 Ark. App. 369, 13 S.W.3d 218 (2000).  What constitutes reasonable and \nnecessary   medical   treatment   is   a  question   of  fact  for   the   Commission.   White \nConsolidated  Indus.  v.  Galloway,  74  Ark.  App.  13,  45  S.W.3d  396  (2001); Wackenhut \nCorp. v. Jones, 73 Ark. App. 158, 40 S.W.3d 333 (2001). \n As the Arkansas Court of Appeals has held, a claimant may be entitled to additional \ntreatment  even  after  the  healing  period  has  ended,  if  said  treatment  is  geared  toward \nmanagement of the injury.  See Patchell v. Wal-Mart Stores, Inc., 86 Ark. App. 230, 184 \nS.W.3d 31 (2004); Artex Hydrophonics, Inc. v. Pippin, 8 Ark. App. 200, 649 S.W.2d 845 \n(1983).  Such services can include those for the purpose of diagnosing the nature and \nextent  of  the  compensable  injury;  reducing  or  alleviating  symptoms  resulting  from  the \ncompensable  injury;  maintaining  the  level  of  healing  achieved;  or  preventing  further \ndeterioration of the damage produced by the compensable injury.  Jordan v. Tyson Foods, \nInc., 51 Ark. App. 100, 911 S.W.2d 593 (1995); Artex, supra. \nClaimant  is  entitled  to  reasonable  and  necessary  medical  treatment  for  his \ncompensable  left  hip  injury.  I  find  by  the  preponderance  of  the  evidence that  all  the \nmedical  treatment  paid  for  by  the  Respondents  for  the  treatment  of  Claimant’s  work-\nrelated left hip injury was reasonable and necessary, including the x-rays and an MRI. \nClaimant testified that he received physical rehabilitation services for his work-related left \nhip  injury  in  Maryland  approximately  six  weeks  before his  June  2, 2023,  motor  vehicle \nincident. I don’t credit this testimony. I don’t have any physical therapy records verifying \n\nCHAVEZ H301483 \n \n10 \n \nthe purpose of this treatment or that the treatment had actually taken place. There is no \nreason, and no reason was given why the physical therapy records were not provided to \nthe  Respondents  and  the  Commission  given  this  full  hearing  had  taken  place  months \nafter the alleged treatment. Therefore, I cannot find by the preponderance of the evidence \nthat this particular treatment was reasonable and necessary.  \nClaimant has mentioned no other treatment for his left hip work-related injury. As \nfor any treatment in evidence that arose out of the June 2, 2023, motor vehicle accident, \nthe  preponderance  of  the  evidence  establishes  that  it  was  not  causally  related  to  his \ncompensable injury, and thus is not the responsibility of Respondents. \nC. Whether Claimant is entitled to temporary total benefits from September 10, \n2022, to a date yet to be determined. \n \nTemporary total disability for unscheduled injuries is that period within the healing \nperiod in which the Claimant suffers total incapacity to earn wages. Ark. State Highway \nand Transportation Dept. v. Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981). The healing \nperiod ends when the underlying condition causing the disability has become stable and \nnothing further in the way of treatment will improve that condition. Mad Butcher, Inc. v. \nParker,  4  Ark.  App.  124,  628  S.W.2d  582  (1982).  Claimant  continued  to  work  for  the \nRespondent/Employer until March 21, 2023. His attorney stated in his post-hearing brief \nthat Claimant quit his job due to unbearable pain. Claimant was on light duty when he quit \nworking for Respondent/Employer and moved to his home state of Maryland. He quit his \njob voluntarily and without a doctor’s orders. I don’t credit Claimant’s reason for quitting \nhis  job  as  being  due  to  unbearable  pain.  This  was  never  brought  out  in  his  sworn \ntestimony. Though I find he did voluntarily quit his job, I find that he did so to move to his \nhome state of Maryland. Claimant has the responsibility of proving that he suffered a total \n\nCHAVEZ H301483 \n \n11 \n \nincapacity to earn wages. No credible evidence was presented showing that the Claimant \nhad indeed suffered a total incapacity to earn wages due to his work-related injury. Thus, \nI find that he did not prove by the preponderance of the evidence that he is entitled to \ntemporary total disability benefits for any period of time. \nD. Whether Claimant is entitled to an impairment rating and permanent partial \ndisability benefits. \nPermanent impairment, generally a medical condition, is any permanent functional \nor anatomical loss remaining after the healing period has been reached.  Ouachita Marine \nv. Morrison, 246 Ark. 882, 440 S.W.2d 216 (1969).  Pursuant to Ark. Code Ann. § 11-9-\n522(g) (Repl. 2012), the Commission adopted the Fourth Edition of the AMA Guides as \nan impairment rating guide.  See AWCC R. 099.34.  A determination of the existence or \nextent of physical impairment must be supported by objective and measurable physical \nor mental findings.  Ark. Code Ann. § 11-9-704(c)(1)(B) (Repl. 2012).  Permanent benefits \nare to be awarded only following a determination that the compensable injury is the major \ncause of the disability or impairment.  Id. § 11-9-102(F)(ii).  “Major cause” is defined as \n“more  than  fifty  percent  (50%)  of  the  cause,”  and  a  finding  of  major  cause  must  be \nestablished by a preponderance of the evidence.  Id. § 11-9-102(14).  Any medical opinion \nmust be stated within a reasonable degree of medical certainty.  Id. § 11-9-102(16). \nThe credible evidence does not establish that Claimant has yet reached the end \nof his healing period regarding his compensable left hip injury. For that reason, the issue \nis not yet ripe. Instead, it will be considered reserved. \nE. Whether Claimant is entitled to a controverted attorney’s fee. \n \nOne of the purposes of the attorney's fee statute is to put the economic burden of \nlitigation on the party who makes litigation necessary.  Brass v. Weller, 23 Ark. App. 193, \n\nCHAVEZ H301483 \n \n12 \n \n745 S.W.2d 647 (1998).  Under Ark. Code Ann. § 11-9-715 (Repl. 2012): \n(B) Attorney’s fees shall be twenty-five percent (25%) of compensation for \nindemnity  benefits  payable  to  the  injured  employee  or  dependents  of  a \ndeceased employee . . . In all other cases whenever the commission finds \nthat a claim has been controverted, in whole or in part, the commission shall \ndirect that fees for legal services be paid to the attorney for the claimant as \nfollows:  One-half (½) by the employer or carrier in addition to compensation \nawarded;  and  one-half  (½)  by  the  injured  employee  or  dependents  of  a \ndeceased employee out of compensation payable to them. \n \n Discussion.    Based  on  my  previous  findings  in  this  opinion,  the  evidence \npreponderates that Claimant’s counsel is not entitled to an attorney’s fee as set out above. \nCONCLUSION AND AWARD \n Respondents  are  hereby  directed  to  pay/furnish  benefits  in  accordance  with  the \nFindings of Fact and Conclusions of Law set forth above.  \n IT IS SO ORDERED. \n       ________________________________ \n       Hon. Steven Porch \n                                                                           Administrative Law Judge","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H301483 ELIAS CHAVEZ, EMPLOYEE CLAIMANT THOMPSON CONSTRUCTION GROUP, INC., EMPLOYER RESPONDENT ZURICH AMERICAN INSURANCE CO., CARRIER RESPONDENT AMENDED OPINION FILED DECEMBER 13, 2023 Hearing before Administrative Law Judge Steven Porch on October 6, 2023, i...","fetched_at":"2026-05-19T22:59:26.172Z","links":{"html":"/opinions/alj-H301483-2023-12-13","pdf":"https://labor.arkansas.gov/wp-content/uploads/Chavez_Elias_H301483_20231213.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}