{"id":"alj-H301714-2024-01-29","awcc_number":"H301714","decision_date":"2024-01-29","opinion_type":"alj","claimant_name":"Sasha Justice","employer_name":"O’reilly Automotive, Inc","title":"JUSTICE VS. O’REILLY AUTOMOTIVE, INC. AWCC# H301714 JANUARY 29, 2024","outcome":"denied","outcome_keywords":["granted:1","denied:3"],"injury_keywords":["wrist","back","sprain","shoulder"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/JUSTICE_SASHA_H301714-20240129.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"JUSTICE_SASHA_H301714-20240129.pdf","text_length":44355,"full_text":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. H301714 \n \nSASHA JUSTICE, Employee CLAIMANT \n \nO’REILLY AUTOMOTIVE, INC., Employer RESPONDENT \n \nGALLAGHER BASSETT SERVICES, INC., Carrier RESPONDENT \n \n \n \n OPINION FILED JANUARY 29, 2024 \n \nHearing  before  ADMINISTRATIVE  LAW  JUDGE  ERIC  PAUL  WELLS  in  Fort  Smith, \nSebastian County, Arkansas. \n \nClaimant represented by MICHAEL L. ELLIG, Attorney at Law, Fort Smith, Arkansas. \n \nRespondents represented by MICHAEL C. STILES, Attorney at Law, Little Rock, Arkansas. \n \n STATEMENT OF THE CASE \n \n On  November  2,  2023,  the  above  captioned  claim  came  on  for  a  hearing  at  Fort  Smith, \nArkansas.    A  pre-hearing  conference  was  conducted  on  August  30,  2023,  and  a  Pre-hearing \nOrder  was  filed  on  September  6,  2023.      A  copy  of  the  Pre-hearing  Order  has  been  marked \nCommission's Exhibit No. 1 and 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 relationship of employee-employer-carrier existed between the parties on January \n23, 2023. \n 3.  The  claimant  sustained  a  compensable  injury  to  her  right  wrist  and  hand  on  or  about \nJanuary 23, 2023. \n\nJustice – H301714 \n \n-2- \n 4. The claimant was earning sufficient wages to entitle her to compensation at the weekly \nrates  of  $247.00  for  temporary  total  disability  benefits  and  $185.00  for  permanent  partial \ndisability benefits. \n By agreement of the parties the issues to litigate are limited to the following: \n 1. Whether Claimant is  entitled to temporary partial disability benefits from January 24, \n2023, to July 15, 2023, and temporary total disability benefits from July 16, 2023, to a date yet to \nbe determined. \n 2. Whether Claimant’s attorney is entitled to an attorney fee. \n The claimant's contentions are as follows: \n“The claimant contends that she has been rendered temporary total \ndisability,  or  partially  disabled  from  January  24,  2023  through a \ndate  yet  to  be  determined  and  that  her  attorney  is  entitled  to  the \nstatutory fee on these benefits.” \n \n The respondents’ contentions are as follows: \n“1.  All  benefits  to  which  the  Claimant  is  entitled  have  been  paid \nand have not been controverted. \n \n2.  The  Respondents  have  paid  (and  are  continuing  to  pay)  the \nrelated medical expenses on the Claimant’s behalf. \n \n3. Following the January 23, 2023 incident, the Claimant continued \nworking for the respondent employer. \n \n4.  The  Claimant  eventually  received  light  duty  work  restrictions, \nwhich the respondent employer could accommodate. Accordingly, \nthe   respondent   employer   offered   light   duty   work   within   the \nClaimant’s restrictions; however, the Claimant declined such offer \nby refusing to appear for work. \n \n5.  Given  the  Claimant’s  refusal  of  employment  suitable  to  her \ncapacity  and  within  her  capabilities,  she  is  not  entitled  to  any \nindemnity  benefits  herein.  See  Arkansas  Code  Annotated  §11-9-\n526. \n \n\nJustice – H301714 \n \n-3- \n6. If it is determined the Claimant is entitled to additional benefits, \nthe Respondents hereby request a setoff for all benefits paid by the \nClaimant’s  group  health  carrier,  all  short  term  disability  benefits \nreceived by the Claimant, all long term disability benefits received \nby  the  Claimant,  and  all  unemployment  benefits  received  by  the \nClaimant. \n \n7.  The  Respondents  reserve  the  right  to  amend  and  supplement \ntheir  contentions  and  position  after  additional  discovery  has  been \ncompleted.” \n \n The  claimant  in  this  matter  is  a  48-year-old  female who  sustained  a  compensable  injury \nto her right wrist and hand on January 23, 2023. The claimant was employed by the respondent, \nwho is primarily in the business of selling auto parts, tools, and supplies. On direct examination, \nthe claimant described how her injury occurred as follows: \nQ Okay.  Now,  would  you  briefly  describe  your  accident  for \nthe judge. \n \nA I was delivering a part and it was a leaf spring for a truck. I \nwent to – and they had me delivering in a car and in order for the \nleaf  spring  to  fit  in  the  car,  the  seat  had  to  be  leaned  down.  And \nwhen I opened the back hatch, I reached down with my right hand \nto  pull  up  the  part  to  get  it  out  and  it  hung  on  something  in  the \nfront of the seat and it slammed down and twisted my wrist. \n \nQ Which wrist was that? \n \nA My right wrist. \n \nQ Okay.  What  symptoms  did  you  experience  immediately \nafter the accident? \n \nA Pain and swelling. \n \n The  claimant  reported  her  injury  to  the  respondent  and  was  seen  at  Conservation  Care \nOccupational  Health  in  Van  Buren,  Arkansas,  on  January  26,  2023,  by  APRN  Jessica  Minton. \nFollowing is a portion of that medical report: \n\nJustice – H301714 \n \n-4- \nEmployer Description of Accident: Sasha dropped a leaf spring on \nher wrist. The injury occurred on 1/23/23. She has not been treated \nat any other facility for this injury. \n \n*** \nCHIEF COMPLAINT \nRight wrist pain. \n \nHISTORY OF PRESENT ILLNESS \nSasha’s primary problem is pain located in the right wrist. She \ndescribes  it  as  aching,  throbbing,  sharp.  She  considers  it  to  be \nmoderate.  The  problem  began  on  1/23/2023.  Sasha  says  that  it \nseems  to  be  constant.  She  has  noticed  that  it  is  made  worse  by \ncertain  positioning  of  right  wrist.  It  is  improved  with  letting  right \nwrist dangle. She feels it is stable. \n \n*** \nDIAGNOSIS \n1. Pain in right wrist (M25.531). \n2. Pain in right forearm (M79.631) \n3. Unspecified sprain of right wrist, initial encounter (S63.501A) \n \nASSESSMENT \nSasha  presents  with  right  hand  swelling,  right  wrist  pain  and \nswelling  and  right  forearm  pain  and  swelling.  Unable  to  perform \nspecial  tests  for  the  wrist  due  to  pain,  decreased  range  of  motion, \nand  decreased  strength.  Pulses  are  two  plus,  sensation  is  normal, \nand capillary refill is less than two seconds. The hand is weak and \nextremely tender with movement or palpation. She was advised to \nRICE  her  injury  and  use  over  the  counter  Tylenol,  ibuprofen,  and \ntopical  pain  modalities.  She  was  placed  in  a  thumb  spica  splint \nwith the metal removed. She will be placed on restrictions for use \nof her right hand and return in two weeks. \nNumber   and   Complexity   of   Problems   Addressed:   1   acute \ncomplicated injury. \nRationale: The injury is extensive. \n \nTREATMENT PLAN \nRest,  ice,  soft  wrist  support,  elevation,  Tylenol,  NSAIDs  and \ntopical pain modalities were discussed. \n \n*** \nRECOMMENDED WORK STATUS \nSasha’s recommended work status is Restricted Duty. \n \n\nJustice – H301714 \n \n-5- \nRECOMMENDED ACTIVITY RESTRICTIONS \nAvoid right handed work, Continuous use of soft wrist support. \n \n The claimant was again seen by APRN Minton on February 9, 2023, with continued and \nincreasing pain. Following is a portion of that medical record: \nASSESSMENT \nSasha  presents  with  right  hand  swelling,  right  wrist  pain  and \nswelling,  and  right  forearm  pain.  Unable  to  perform  all  special \ntests  for  the  wrist  due  to  pain,  decreased  range  of  motion,  and \ndecreased strength. Tinnels and phalens test are positive. Pulses are \ntwo  plus,  sensation  is  normal,  and  capillary  refill  is  less  than  two \nseconds. The hand is weak and extremely tender with movement or \npalpation, particularly the lateral aspect of the thumb and along the \ndistal  radius.  She  also  reports  pain  along  the  distal  ulna  with \nmovement   and   palpation,   grip   strength   and   pincar   grasp   are \nsignificantly decrease. She was advised to continuing RICEing her \ninjury   and   use   over   the   counter   Tylenol   and   topical   pain \nmodalities. She was started on Meloxicam and the rigid support for \nher  thumb  spica  splint  was  replaced.  She  will  be  placed  on \nrestrictions for use of her right hand and be referred for an MRI. \nNumber   and   Complexity   of   Problems   Addressed:   1   acute \ncomplicated injury. \nRationale: The injury is extensive. \n \nTREATMENT PLAN \nRest,    ice,    compression/support,    elevation,    prescription    anti-\ninflammatory,  OC  Tylenol,  and  topical  pain  relief  was  discussed. \nShe will be referred for an MRI of the right wrist and hand for the \nworsening pain, strength, ROM, and sensation changes. \n \n*** \nCONSULTATION/REFERRAL REQUEST \nReferral  for  MRI  Elevate  the  need  for  further  diagnostic  testing. \nElevate the proper diagnosis. Elevate the lack of progress. \n \nThe claimant was continued on one-handed duty with use of “thumb spica splint.” \n On  February  21,  2023,  the  claimant  underwent  an  MRI  of  her  right  wrist  at  Prime \nMedical Imaging. Following are findings and impressions from that diagnostic report: \nFINDINGS: \n\nJustice – H301714 \n \n-6- \nThere is a tear of the triangular fibrocartilage, Joint effusion in the \ndistal  radioulnar  joint  compatible  with  there  being  arthrosis  in  the \ndistal radial ulnar joint. No significant abnormal signal intensity of \nthe marrow spaces of the carpal bones or the distal radius and ulna \nother than a tiny area of marrow edema of the ulnar styloid tip. The \nextensor  and  flexor  tendons  sheaths  appear  unremarkable.  No \nganglion cyst or soft tissue mass about the wrist. \n \nIMPRESSION: \nTear  of  the  triangular  fibrocartilage  and  arthrosis  in  the  distal \nradioulnar joint. \n \n On  February  22,  2023,  the  claimant  was  again  seen  by  APRN  Minton.  The  claimant’s \nwork and activity restrictions were continued, and she was referred to a hand surgeon for further \nevaluation and treatment. \n On March 8, 2023, the claimant was seen by Dr. James Kelly, a hand surgeon. Following \nis  a  letter  authored  by  Dr.  Kelly  regarding  his  assessment,  treatment,  and  restrictions  for  the \nclaimant: \nThank you very much  for referring Sasha Justice  for consultation. \nAs  you  are  aware,  she  is  a  47-year-old  O’Reilly  Auto  Parts \nemployee  who  on  01/23/2023  was  injured  on  the  job.  She  had  a \nleaf  spring  fall  on  her  wrist.  Since  that  time,  she  has  had  severe \nswelling  and  pain  in  the  right  wrist.  Her  pain  is  centered  over  the \nulnar border. She had an MRI which showed a TFCC tear. She has \nonly been immobilized. She has not had any therapy or injections. \nAfter  examining  her  and  looking  at  her  MRI,  I  have  decided  to \ninject  her  wrist  with  steroid  and  start  her  on  ultrasound  and  range \nof  motion  therapy.  We  also  will  place  her  in  a  compression  glove \nto  help  deal  with  the  swelling  in  the  fingers.  Once  we  do  this,  if \nsuccessful,  then  obviously  nothing  else  would  need  to  be  done.  If \nthis were to fail, then we may need to do surgical intervention for \nthe TFCC injury. I am hopeful however that we will not have to do \nthis.  I  will  make  arrangements  for  her  to  get  the  therapy  and \ncompression glove. I injected her wrist today. I want her to stay on \nstrictly  one  hand  duties  at  work.  She  will  be  attending  therapy  3 \ntimes a week. I will be seeing her back in 2 weeks to reassess her \nto  see  her  progress.  I  will  of  course  intervene  as  needed  in  the \ninterim. \n \n\nJustice – H301714 \n \n-7- \n On  March  23,  2023,  the claimant  was  again  seen  by  Dr.  Kelly.  Following  is  a  progress \nnote from that visit: \nMs.  Justice  presents  to  the  office  today  after  having  had  her  right \nTFCC  injected  and  having  therapy.  Swelling  is  less  but  she  is  not \nhaving decrease in pain. With that being said,  I do not think there \nis any benefit in waiting. I think we need to take her to the OR and \ncomplete a TFCC repair. She will need splinting for about 6 weeks \nand then she will require therapy and range of motion. I will make \narrangements to get this done and I will of course be following her \nthroughout the care. \n \n On  May  5,  2023,  the  claimant  underwent  surgical  intervention  on  her  right  wrist  at  the \nhands of Dr. Kelly. Following is a portion of that operative report: \nPREOPERATIVE  DIAGNOSIS:  Right  triangular  fibrocartilage \ncomplex tear with unstable distal radial ulnar joint. \n \nPOSTOPERATIVE  DIAGNOSIS:  Right  triangular  fibrocartilage \ncomplex tear with unstable distal radial ulnar joint. \n \nPROCEDURES: \n1. TFCC repair of the right wrist. \n2. Stabilization of the right DRUJ. \n \nDr. Kelly returned the claimant to work on alternative duty on May 6, 2023, with the following \nrestrictions, “no use of right arm (strictly one-handed duty).” \n On May 18, 2023, Dr. Kelly continued the claimant’s restriction of no right arm use and \nrequired  the  claimant  to  use  a  splint.  At  the  claimant’s  June  7,  2023,  visit  with  Dr.  Kelly,  he \nchanged  her  restrictions  from  no  use  of  right  arm  to “primarily  one-handed  work  using  the \nunaffected  extremity”  and  indicated  that  the  claimant “may  use  injured  hand/arm  to  assist \noccasionally.”  He  also  placed  a  five-pound  lifting  restriction  on  the  claimant’s  right  arm. \nFollowing is a portion of the medical record from that visit: \nMs.  Justice  presents  to  the  office  today  in  follow-up  of  her  right \nTFCC  repair.  We  completed  the  repair  of  May  5,  2023.  She \n\nJustice – H301714 \n \n-8- \npresents today. She stated she hit the back of her hand on a buggy \nat work and states she had pain that radiated up  to the elbow. She \nhas  some  swelling  in  her  fingers.  I  do  not  think  the  swelling  is \nactually  related  to  the  blow  to  the  back  of  the  hand.  I  think  the \nswelling  is  just  from  the  fact  she  has  been  immobilized  after \nhaving wrist surgery for over a month. This is very typical.  She is \nto the point that we can get her out of the splint altogether and get \nher  in  a  compression  glove  and  start  on  range  of  motion  and \nstrengthening exercises. We will keep her on light-duty restrictions \nat work. I want to see her back here in the office in 4 weeks to note \nher progress. \n \n Dr. Kelly again saw the claimant on July 10, 2023. Following is a portion of that progress \nnote: \nMs.  Justice  has  not  been  progressing  well  in  therapy  at  all.  She \ncomplains  of  hypersensitivity  and  discomfort  in  the  forearm.  I \nthink  that  in  order  to  rule  out  the  possibility  of  this  being  a \nsympathetic  dystrophy  picture  we  want  to  do  a  three-phase  bone \nscan  on  her.  I  also  feel  that  if  the  three-phase  bone  scan  comes \nback negative there is really nothing else that I am going to be able \nto  do  for  this  lady  and  we  will  want  to  get  a  rating  completed.  I \nwill order the three-phase bone scan and I will see her back here in \nthe office once this has been completed. \n \nNo changes or comments regarding the claimant’s work or activity restrictions are present in the \nmedical records submitted into evidence after the claimant’s June 7, 2023, restrictions. \n After  the  claimant’s  injury,  she  continued  to  work  for  the  respondent  and  was  provided \nwith one-handed duty as was ordered by APRN Minton on the claimant’s January 26, 2023, visit \nto  Conservative  Care  Occupational  Health  in  Van  Buren.  The  claimant  testified  that  she \ncontinued to have pain and swelling but continued to work with restrictions. The claimant had a \nright wrist MRI on March 3, 2023, and first saw Dr. Kelly on March 8, 2023. The claimant gave \ndirect  testimony  about  her  continuing  to  work  and  symptoms  after  initially  seeing  Dr.  Kelly  as \nfollows:  \nQ Did he continue to release you to work? \n\nJustice – H301714 \n \n-9- \n \nA Yes, sir. Just – \n \nQ And what were the restrictions? \n \nA Not to use my right hand at all. \n \nQ Now, after this treatment, initial treatment by Dr. Kelly, did \nyour symptoms improve? \n \nA No, sir. \n \nQ Did they get worse? \n \nA Yes, sir. \n \nQ And again, you tried to continue working; is that correct? \n \nA Yes, sir. \n \nQ And what problems did this cause? \n \nA By this time the pain and swelling was so bad and I kept – \nthey were supposed to be getting me this glove and they never did \nto try to help with the swelling, but I continued to go to work, even \nthough when my arm is down at work, it’s just – it swells and the \npain. \n \n On May 5, 2023, Dr. Kelly performed surgical intervention on the claimant’s right wrist. \nOn direct examination, the claimant was asked about her work restrictions after her May 5, 2023, \nsurgery and the difficulties she alleges due to her continued work as follows: \nQ And after the surgery, did Dr. Kelly return you to work? \n \nA The day after the surgery, yes, sir. \n \nQ With the same restrictions? \n \nA Yes, sir. \n \nQ Do you recall what those were? \n \n\nJustice – H301714 \n \n-10- \nA They were to not use my right hand and to ice  and elevate \nit. \n \nQ Did you continue to try to work? \n \nA Yes, sir. \n \nQ And what problems did this cause? \n \nA The  day  after  surgery,  I  went  in  like  he  told  me,  I  had  to, \nand I was on heavy narcotic medicine for pain and they told me to \ngo home. \n \nQ And did Dr. Kelly prescribe physical therapy. \n \nA Yes, sir. \n \nQ Did you get that? \n \nA Some of it. \n \nQ Did that help any? \n \nA I didn’t do it long enough to see any improvement. \n \nQ Did  any  of  that  treatment  by  Dr.  Kelly  improve  or  lessen \nyour symptoms? \n \nA No. \n \nQ Did you continue to try to work? \n \nA Yes, sir. \n \nQ And what problems did this cause? \n \nA It  is  continuous  swelling  and  after  the  surgery,  I  started \nhaving  really  bad  muscle  spasms  and  sharp  pains  all  through  my \nhand and arm all the way up to my shoulder and the swelling made \nit worse. \n \nQ Now, at some point in time, did you stop going into work? \n \nA Yes, sir. \n \n\nJustice – H301714 \n \n-11- \nQ Do you recall when that was? \n \nA July 15\nth\n. \n \nQ And why did you stop going into work? \n \nA Because  they  were  supposed  to  accommodate  me  with  ice \nand time to elevate my arm at least twice a day for 20 minutes and \nthey never accommodated that. \n \nQ Did the fact that your arm, hand and wrist hadn’t gotten any \nbetter play a role in that, in your deciding to just not go in and not \ntry to work? \n \nA Right. After I tried and tried. \n \nQ After you quit working, did your symptoms change any? \n \nA Yes.  My  hand  does  not  swell  as  much  and  I  can  keep  it \ncontrolled with pain medication and the ice and elevation. \n \n The  claimant  has  asked  the  Commission  to  determine  if  she  is  entitled  to  temporary \npartial  disability  benefits  from  January  24,  2023,  to  July  15,  2023.  The  claimant  submitted  an \nhours  and  wage  summary  produced  by  the  respondent  for  the  claimant  into  evidence,  which  is \nfound  at  Claimant’s  Exhibit  2.  There  appears  to  be  a  reduction  in  hours  and  corresponding \nreduction  in  wages  after  the  claimant’s  January  23,  2023,  compensable  injury,  up  until  the \nclaimant  quit  working  for  the  respondent  on  July  15,  2023.  The  claimant  was  asked  on  direct \nexamination about her reduction in work after her compensable injury as follows: \nQ Now,  during  the  period  of  time  you  tried  to  work,  did  you \nwork significantly less hours per week? \n \nA Yes, sir. \n \nQ Why was this? \n \nA I couldn’t handle the pain. \n \n\nJustice – H301714 \n \n-12- \n On  cross  examination,  the  claimant  was  asked  about  her  work  with  restrictions  that  the \nrespondent had agreed to accommodate as follows: \nQ In evidence, Respondents’ Documentary Exhibit Pages 1 \nand 2, is an offer of temporary modified  duty dated February 22\nnd\n \nof  this  year.  Did  you  receive  that  offer  of  modified  duty  from \nO’Reilly in late February? \n \nA Is that the one that’s telling me I needed to go back to \nwork? \n \nQ It   is   asking   if   you   can   return   to   work   based   on   the \nrestrictions assigned to you. \n \nA Yes, I did. \n \n MR. STILES: Judge, may I approach? \n \n THE COURT: You may. \n \nQ [BY MR. STILES]: Ms. Justice, I am going to show to you \nthat Respondents’ page, Exhibit 1, and it is the February 22, 2023 \nletter. Does this letter look familiar? \n \nA Yes, sir. \n \nQ And is this your signature there at the bottom? \n \nA Yes. \n \nQ Dated February 23\nrd\n? \n \nA Yes, sir. \n \nQ Okay. And so you are aware that O’Reilly was offering you \nwork within your restrictions; correct? \n \nA Yes, they were. \n \nQ And  through  this  letter,  were  you  aware  that  they  could \neven accommodate such restrictions as avoiding right-hand work? \n \nA Yes, sir. \n \n\nJustice – H301714 \n \n-13- \nQ So is that essentially a  different  way of saying one-handed \nduty,  that  avoid  right-hand  work  you  are  left  to  only  work  with \nyour left hand? \n \nA Yes, sir. \n \nQ Okay. And are you right-hand dominant? \n \nA Yes, sir. \n \nQ So O’Reilly was still willing to work with you when you \ncould  only  use  your  nondominant  hand  for  work  while  on  light \nduty? Is that a fair statement? \n \nA Without    accommodations    from    a    doctor’s \nrecommendations, yes, sir. \n \nQ What  do  you  mean  without  accommodations  from  your \ndoctor? \n \nA My  doctor  asked  for  me  to  be  able  to  have –  to  ice  and \nelevate for 20 minutes twice a day. \n \nQ Are you aware that there is no report in evidence today that \nmakes reference to this ice and elevate? \n \nA It was given to Mr. Jody. \n \nQ But are you aware that from the exhibits you submitted and \nmy  client  submitted,  there  is  no  report  in  there  about  icing  and \nelevating? \n \n MR.  ELLIG:  Judge,  I  don’t  believe  that  is  a  fair \ncharacterization. \n \n THE COURT: Are you objecting to the line of question? \n \n MR. ELLIG: I am. \n \n THE COURT: Okay. \n \n MR. STILES: Based on what? \n \n MR.  ELLIG:  I  think  you  are  misstating  what  the  record \nshows. \n\nJustice – H301714 \n \n-14- \n \n MR. STILES: Well, Your Honor, I have gone through and I \nhave got some examples. \n \n MR. ELLIG: Start with the Occupational Medicine records. \n \n MR.  STILES:  Well,  she  first  mentioned  that  she  went  on \nMarch – was it March 8\nth\n to Dr. Kelly. \n \nQ [BY  MR.  STILES]:  Was  Dr.  Kelly  the  one  that  said  you \nneed to ice and elevate? \n \nA Not at that time. \n \nQ But you just testified when you first saw him on March 8\nth\n \nhe said to ice and elevate. I have got your testimony right here. \n \nA Continue to ice and elevate is what he told me the first time \nI saw him. \n \nI  note  that  after  a  review  of  the  medical  records  submitted  into  evidence,  I  find  no  requirement \nplaced  by  any  medical  provider  to  ice  and  elevate  the  claimant’s  right  wrist  and  hand  for  20 \nminutes. APRN Minton’s records do mention ice and elevation in the “treatment plan” portion of \nher  medical  records,  typically  saying “rest,  ice,  soft  wrist  support,  elevation,  Tylenol,  NSAIDs, \nand topical pain medications were discussed.” There is no scheduling, or a time frame mentioned \nas  to  when  or  how  long  the  claimant  should  ice  and  elevate  her  arm,  and  Dr.  Kelly  made  no \nmention of ice or elevation in his medical records. \n The  claimant  was  asked  about  help  she  received  from  fellow  employees  while  she  was \nworking on restricted duty after her compensable injury as follows: \nQ Okay.  And  while  you  were  working  modified  duty  for \nO’Reilly before your surgery, did you receive assistance in lifting \nitems from, say, co-workers or other employees? \n \nA Before I hurt my hand? \n \nQ No. Before surgery while you were on modified light duty. \n\nJustice – H301714 \n \n-15- \n \nA When they could. When they had time. If not, I had to do it. \n \nQ Well,  in  your  deposition  you  told  me  something  a  little \ndifferent. Do you recall in your deposition me asking, “Were you \nreceiving  any  kind  of  assistance  as  far  as  lifting  items?  Would \nother  co-workers  help  you  lift  or  do  anything  while  working  light \nduty?” \n \n Do you recall that question? \n \nA I recall the question. \n \nQ And do you recall what you told me? \n \nA No. \n \nQ For  the  record  on  Page  32  of  your  deposition,  there  is  my \nquestion.  And  what  is  your  answer  about  co-workers  helping  you \nlift items? What is that word? \n \nA “Yes.” \n \nQ And  while  you  would  work  light  duty  or  modified  duty, \nyour job expectation or job duties changed; correct? \n \nA Yes, sir. \n \nQ You were expected to work the front counter.  Is that a fair \ndescription? \n \nA Yes, sir. \n \nQ And when you are working at the front counter, would you \nwork alone or by yourself up there? \n \nA Sometimes. \n \nQ Okay. How often would you be up there alone working the \nfront counter during light duty? \n \nA Depending  on  how  busy  the  other  associates  were  with \ncustomers. \n \n\nJustice – H301714 \n \n-16- \nQ But  there  were  others  around,  though,  in  the  store?  You \nhave told me it was a small store. \n \nA Some were in the store. Some were outside checking codes \nfor cars. Some were putting up stock. \n \nQ And  prior  to  surgery,  again,  while  you  are  on  modified \nduty, did you ever tell your superiors there at O’Reilly that you \nwere in too much pain to work and that you wanted off work? \n \nA Yes. \n \nQ And  did  you  tell  the  same  thing  to  Dr.  Kelly  before \nsurgery? \n \nA Yes. \n \n The claimant was asked  on cross examination about a period of roughly two weeks that \nshe  did  not  work  despite  being  released  to  return  to  work  by  Dr.  Kelly  with  restrictions  as \nfollows: \nQ We discussed that you had the surgery on May 5\nth\n and then \nDr.  Kelly  issued  that  May  5\nth\n  note  that  we  already  looked  at  on \nPage 31 of the Claimant’s Exhibits. \n \n And,  again,  it  says  no  use  of  right  arm.  Is  that  your \nrecollection as far as that May 5\nth\n return-to-work note? \n \nA Yes, sir. \n \nQ And despite having previously worked on one-handed duty \nbefore  surgery  and  then  receiving  this  May  5\nth\n  note,  you  chose  to \ntake  yourself  off  work  for  about  two  weeks  after  surgery;  is  that \ncorrect? \n \nA No, sir. \n \n MR. STILES: Okay. That’s not what you told me in your \ndeposition. Let’s go to Page 24 of your deposition transcript. And \nJudge, I apologize, do I have a continuing – \n \n THE COURT: You may approach. \n \n\nJustice – H301714 \n \n-17- \n MR. STILES: -- approach request, please? \n \n THE COURT: You may. \n \nQ [BY MR.  STILES]:  I  am  asking  you  here  at  the  bottom  of \nPage 32 about having surgery and Dr. Kelly performs the surgery. \nAnd I said, “How much time did you miss from work following \nthe surgery?” \n \n You said, “I took two weeks off because he released me to \ngo back to work the day after surgery.” \n \n Did I read that correctly? \n \nA Uh-huh. \n \nQ Is that a “yes”? \n \nA Yes. \n \nQ And  then I  said,  “So  you  took  two  weeks  off  yourself \ndespite Dr. Kelly’s release?” \n \n And then you said, “Dr. Kelly didn’t give me a release. He \njust released me to regular – or this here.” \n \n And I said, “To light duty work?” \n \n And then you said, “Not using my right hand.” \n \n And I said, “But he was releasing you saying you can go \nback to work in some form or fashion?” \n \n And you said, “Yes.” \n \n And then I asked you ultimately, “But you decided to take \nthe two weeks off?” \n \n And what is your answer? \n \nA “Yes. There was no way I could work. And they took me \noff.” \n \nQ Right. So you took of – \n \n\nJustice – H301714 \n \n-18- \nA Greg,  the  supervisor,  took  me  off  work.  Told  me  to  go \nhome. I took off the two weeks. \n \nQ But it wasn’t per Dr. Kelly’s orders; correct? \n \nA Well, I couldn’t work under a heavy narcotic around the \nmoney that I had to work around is what the supervisor told me. \n \nQ So you did receive TTD. My clients did oblige and pay you \ntemporary  total  disability  benefits  from  May  5\nth\n  until  May  21\nst\n; \ncorrect? \n \nA Yes. \n \n The claimant also testified on cross examination about returning to work with restrictions \nfollowing the two weeks that she was off work after surgery as follows: \nQ Okay.  So  a  little  over  two  weeks  while  you  were  off  work \nand then you decided to return to work at that time; correct? \n \nA Yes, sir. \n \nQ And  when  you  returned  to  work  after  those  two  weeks  or \napproximately two weeks, did you return to the same front counter \nlight-duty job? \n \nA Yes, sir. \n \nQ And  upon  your  return  to  work  after  surgery,  you  would \nreceive  these  return-to-work  notes  from  your  treating  physician \nand then you would forward them to your manager or supervisor at \nwork; correct? \n \nA Yes, sir. \n \nQ Okay.  And  when  you  hand  these  notes  to  your  superior  at \nO’Reilly, did any manager or supervisor ever look at the note and \nsay,  “Hey,  there  is  no  way  O’Reilly  can  accommodate  these \nrestrictions?” \n \nA No, sir. \n \n\nJustice – H301714 \n \n-19- \n On cross examination, the claimant was asked about icing and elevating her arm and her \nability to do so at work as follows: \nQ All right. And you keep mentioning this ice and elevate. In \nyour  deposition  we  talked  about  the  elevating  requirement  or \nrecommendation.  Can  you  at  least  demonstrate  for  us  today  what \nyou did for me in your deposition? What is your understanding as \nfar as this elevation of your wrist? \n \nA Above my heart (indicating). \n \nQ Okay. And at any point in time, did anyone associated with \nO’Reilly say, “Hey, don’t do that. Don’t elevate your hand above \nyour heart or your head”? \n \nA They never gave me the time to do it. I was working.  \n \nQ My  question  is  did  anyone  ever  reprimand  you  or  say  you \ncannot do that? \n \nA No. \n \nQ Were  you  allowed – at  O’Reilly  after  surgery  while  on \nmodified  duty,  were  you  allowed  to  take  breaks  as  needed  or  as \nnecessary? \n \nA Yes. \n \nQ And  you  were  also  given  a  lunch  hour  as  part  of  your \nregular workday; correct? \n \nA Yes, sir. \n \nQ Now,  while  on  post-surgery  modified  duty,  did  you  ever \nwork  long  enough  during  the  day  to  make  it  to  take  that  lunch \nhour? \n \nA No, sir. \n \nQ Did you ever even ask anyone at O’Reilly to bump up your \nlunch hour to an earlier time during your shift? \n \nA No, sir. \n \n\nJustice – H301714 \n \n-20- \nQ And  is  it  true  that  you  typically  while  on  post-surgery \nmodified  duty,  that  you  typically  worked  only  90  minutes  to  two \nhours before you left for the day? \n \nA Yes, sir. \n \nQ And  I  know  in  your  deposition  we  also  talked  about  that \nyou are a smoker; correct? \n \nA Yes. \n \nQ And tell me if this remains true. In your deposition you told \nme, “We could go smoke if we wanted to.” Is that correct? \n \nA We could go smoke if we had the opportunity to and no one \nwas  in  the  store  and  we  had  someone  to  cover  the  front  desk.  We \ncouldn’t just walk out and smoke, no. \n \nQ That is not what you told me in your deposition; correct? \n \nA Yes, it was. \n \nQ Are you changing your testimony? \n \nA I’m just saying I did not say we could whenever we wanted \nto  because  there  is  stipulations  on  when  you  can  go  smoke  and \nwhen you cannot. \n \nQ And you did say you didn’t go every five minutes smoking, \nbut  you  did  say  you  took  about  three  to  five  smoke  breaks \nthroughout the day; correct? \n \nA On a full day of working, yes. \n \nQ How many were you taking on a modified day? \n \nA One, two. \n \nQ One to two in a 90-minute span? \n \nA Yes. \n \nQ And  during  those  smoke  breaks,  would  you  elevate  or  ice \nyour hand? \n \n\nJustice – H301714 \n \n-21- \nA I wasn’t out there but two minutes. It wasn’t long enough \nfor me to elevate or ice a hand. \n \nQ So  even  in  those  few  minutes,  you  weren’t  icing  or \nelevating. \n \nA I  probably  had  my  hand  up  while  I  was  sitting  there \nsmoking like this (indicating). \n \nQ Probably. \n \nA Yes. \n \n The claimant has asked the Commission to determine if she is entitled to temporary total \ndisability benefits from July 16, 2023, to a date yet to be determined. On direct examination, the \nclaimant was asked about quitting her employment with the respondent when she simply stopped \ngoing to work as follows: \nQ Now, at some point in time, did you stop going into work? \n \nA Yes, sir. \n \nQ Do you recall when that was? \n \nA July 15\nth\n. \n \nQ And why did you stop going into work? \n \nA Because  they  were  supposed  to  accommodate  me  with  ice \nand time to elevate my arm at least twice a day for 20 minutes and \nthey never accommodated that. \n \nQ Did the fact that your arm, hand and wrist hadn’t gotten any \nbetter play a role in that, in your deciding to just not go in and not \ntry to work? \n \nA Right. After I tried and tried. \n \nQ After you quit working, did your symptoms change any? \n \nA Yes.  My  hand  does  not  swell  as  much  and  I  can  keep  it \ncontrolled with pain medication and the ice and elevation. \n\nJustice – H301714 \n \n-22- \n \n On cross examination, the claimant was asked about quitting work for the respondent and \nreceiving a second offer of restricted duty sent to the claimant as follows: \nQ And  since  your  deposition,  it  looks  like  your  last  day  of \nwork for O’Reilly was actually June 29,  2023,  right  before  the \nFourth of July holiday. Does that sound correct? \n \nA As I told Mr. Mike, I couldn’t remember if it was the end \nof June or July. \n \nQ And the reason that that was your last day of work, in your \ndeposition  you  told  me  that  you  took  yourself  off  of  work.  Is  that \nstill  a  true  and  correct  statement;  that  there  was  no  physician \nactually taking you off work? \n \nA That was my true statement, yes. \n \nQ And again, was there a physician taking you completely off \nwork around the end of June? \n \nA No, sir. \n \nQ All right. So we discussed how that June 7, 2023 return-to-\nwork note, which was Claimant’s Exhibit Page 38 as well as the \nlast  page  of  Respondents’ Exhibit, is the last return-to-work  note. \nAnd then you last worked for O’Reilly there around the end of \nJune. \n \n And  when  we  discussed  those  in  your  deposition  I  asked \nyou,  “Have  you  had  any  communication  with  O’Reilly  since \nthen?” And you said, no, other than a letter that you had received. \nDo you recall telling me that? \n \nA Yes, sir. \n \nQ And  was  the  letter  that  you  referred  to  in  your  deposition \nand  then  ultimately  read  to  us,  was  it  the  offer  to  return  to  work \nfrom O’Reilly dated September 6\nth\n of this year? \n \nA Yes, sir. \n \n MR. STILES: Judge, may I approach? \n \n\nJustice – H301714 \n \n-23- \n THE COURT: You may. \n \nQ [BY  MR.  STILES]:  I  am  going  to  show  this  September  6, \n2023 letter and ask you if this was the letter that you – or a copy of \nthe letter that you received from O’Reilly asking you to return to \nwork? \n \nA Yes, sir. \n \nQ Okay. \n \nA That is the wrong hand, but, yes, sir. \n \nQ A typo, but you understand that they were offering to return \nyou to work in compliance with the restrictions assigned to you on \nJune  7\nth\n.  And  that  is  what  they  reference  there  is  the  June  7\nth\n \nrestrictions. \n \nA Yes, sir. \n \nQ Okay. And did you return this communication to or contact \nO’Reily after receiving this? \n \nA No, sir. I contacted my lawyer. \n \nQ And  did  you  make  any  attempt  to  return  to  work  after \nreceiving that? \n \nA Not that one, no, sir. \n \n The  respondent  in  this  matter  called  Jody  Brownfield  as  a  witness.  Mr.  Brownfield  is \nemployed by the respondent as a store manager and had managed the claimant since he began in \nher store in late March of 2023. Mr. Brownfield was questioned on direct examination about the \nclaimant’s ability to take breaks due to her injury. His direct examination testimony follows: \nQ Okay.  And  while  working  alongside  Ms.  Justice  while  she \nwas working modified duty, would you allow her to take breaks as \nneeded due to her injury? \n \nA Yes,  sir.  When  I  first  took  over  and  I  was  briefed  on  the \nsituation,  I  am  a  simple  person.  I  am  not  a,  you  know,  in-depth \nperson. I pulled her aside and I said, “I was told you need breaks. \n\nJustice – H301714 \n \n-24- \nWhenever you need a break, just let me know and you can go take \na break.” \n \n I mean not flowery or lawyer-like but that is how I said it. \n \n Later  in  direct  examination,  Mr.  Brownfield  was  asked  specifically  about  the  claimant \nbeing able to take breaks to ice and elevate her right arm as follows: \nQ And there was a discussion about this icing and elevating of \nMs. Justice’s hand as a result of her injury. Were you here present \nfor that testimony? \n \nA Yes, sir. \n \nQ And  I  know  that  there  was  no  reference  in  the  medical \nreports  about  the  icing  and  elevating,  but  is  that  something  like \nO’Reilly could accommodate? \n \nA If  she  needed  to  elevate,  obviously,  she  needed  to  take  a \nbreak over to the side, but that is not a big deal. I mean usually the \nway  it  works  is  if  someone  needs  to  do  something  like  a  comfort \nbreak or go to the restroom or something like that, it’s just let me \nknow. If you need a break, tell me. \n \nQ And  are  those  types  of  either  comfort  breaks,  are  they \nlimited as far as number per day? \n \nA No, sir. You can’t limit nature. \n \nQ What’s that? \n \nA You can’t limit nature. \n \nQ Okay.  So  would  you  have  any  objection  to  Ms.  Justice \ntaking a 20-minute break to ice or elevate her hand? \n \nA I will go back to what I said the first time and that is what I \ntold her after I got briefed, “If you need a break, come tell me and \nwe will get you a break.” \n \n\nJustice – H301714 \n \n-25- \n The claimant was again called as a witness for rebuttal testimony. On direct rebuttal, the \nclaimant was asked about requesting to take a 20-minute break to ice and elevate her right arm as \nfollows: \nQ Now,  on  these  20-minute  breaks  to  ice  and  elevate  your \nhands, did you ever try to take one of these breaks? \n \nA No. \n \nQ You never even tried to take one? \n \nA No, because I didn’t have time to take them because I was \nonly working two or three hours a day. \n \nQ So you couldn’t take one in the  first two or three hours? \n \nA Not as busy as we were. There wasn’t enough people there \na lot of times. And I wouldn’t have been able to take a lunch with \njust the very few people that were there. \n \n As  to  the  claimant’s  request  for  temporary  partial  disability  benefits  from  January  24, \n2023,  to  July  15,  2023,  the  claimant  was  clearly  in  her  healing  period  and  on  restricted  duty \nduring that time frame. However, the respondent offered work within the claimant’s restrictions \nand  the  claimant  chose  to  only  do  some  of  the  restricted  duty  work  offered.  The  respondent \noffered  more  work  than  the  claimant  believed  she  could  do  because  of  her  pain.  However,  the \nwork was clearly inside her restrictions and medical providers who placed those restrictions were \nwell  aware  of  the  claimant’s  pain  complaints.  The  claimant  made  a  decision  not  to  work  even \nthough  medical  providers  approved  her  restricted  duty  work  and  the  respondent  offered  that \nwork,  respecting  those  restrictions.  The  claimant’s  reduced  work  hours  and  corresponding \nreduced wages are a function of her choice, not of medical restrictions or the respondent’s ability \nand willingness to provide restricted work ordered by medical providers. The claimant is unable \n\nJustice – H301714 \n \n-26- \nto  prove  her  entitlement  to  temporary  partial  disability  benefits  from  January  24,  2023,  to  July \n15, 2023. \n I  will  now  consider  the  claimant’s  request  for  temporary  total  disability  benefits  from \nJuly 16, 2023, to a date yet to be determined.  A.C.A. §11-9-526 states: \nIf any injured employee  refuses employment suitable to his or her \ncapacity  offered  to  or  procured  for  him  or  her,  he  or  she  shall  not \nbe  entitled  to  any  compensation  during  the  continuance  of  the \nrefusal,  unless  in  the  opinion  of  the  Workers’  Compensation \nCommission, the refusal is justifiable. \n \n Again, in July of 2023, at least up until the hearing in this matter, the claimant remained \nin  her  healing  period.  The  claimant  had  been  placed  on  restricted  duty,  and  the  respondents \nagreed, I find in good faith, to provide the claimant with work inside her restrictions. As late as \nSeptember  6,  2023,  the  claimant  acknowledges  receipt  of  an  offer  for  work  within  her \nrestrictions. That offer of work within her restrictions is found at Respondents’ Exhibit 2. It was \nthe  claimant’s  choice  to  stop  working  due  to  her  pain  which  was  understood  by  medical \nproviders when issuing her restrictions.  \n The claimant, throughout testimony, discusses and answers questions about elevating and \nicing her right wrist and hand. She was specifically asked on direct examination, “And why did \nyou stop going to work?” The claimant responded: \nA Because  they  were  supposed  to  accommodate  me  with  ice \nand time to elevate my arm at least twice a day for 20 minutes and \nthey never accommodated that. \n \nIt  is  clear  throughout  the  claimant’s  own  direct  rebuttal  testimony  that  she  never  tried  or  even \nasked to ice or elevate her right arm.  \nQ Now,  on  these  20-minute  breaks  to  ice  and  elevate  your \nhands, did you ever try to take one of these breaks? \n \n\nJustice – H301714 \n \n-27- \nA No. \n \nQ You never even tried to take one? \n \nA No, because I didn’t have time to take them because I was \nonly working two or three hours a day. \n \n Mr.  Brownfield  testified  that  he  would  have  allowed  the  claimant  to  take  a  break  to \nelevate and ice her right arm. The claimant never even tried to do so according to her own direct \nrebuttal  testimony.  The  claimant  stopped  working  because  she  chose  to  do  so,  not  because  of \nmedical  restrictions  or  an  unwillingness  or  ability  of  the  respondent  to  provide  the  restricted \nwork  she  required.  In  fact,  the  claimant  refused  the  work  she  was  offered  and  did  so  for  no \njustifiable  reason.  The  claimant  has  failed  to  prove  by  a  preponderance  of  the  evidence  her \nentitlement  to  temporary  total  disability  benefits  from  July  16,  2023,  to  a  date  yet  to  be \ndetermined. \n From a review of the record as a whole, to include medical reports, documents, and other \nmatters properly before the Commission, and having had an opportunity to hear the testimony of \nthe  witnesses  and  to  observe  their  demeanor,  the  following  findings  of  fact  and  conclusions  of \nlaw are made in accordance with A.C.A. §11-9-704: \n FINDINGS OF FACT & CONCLUSIONS OF LAW \n 1.  The  stipulations  agreed  to  by  the  parties  at  the  pre-hearing  conference  conducted  on \nAugust  30,  2023,  and  contained  in  a  Pre-hearing  Order  filed  September  6,  2023,  are  hereby \naccepted as fact. \n 2. The claimant has failed to prove by a preponderance of the evidence that she is entitled \nto temporary partial disability benefits from January 24, 2023, to July 15, 2023. \n\nJustice – H301714 \n \n-28- \n 3. The claimant has failed to prove by a preponderance of the evidence that she is entitled \nto temporary total disability from July 16, 2023, to a date to be determined. \n 4. The claimant has failed to prove that her attorney is entitled to an attorney fee in this \nmatter. \nORDER \nPursuant to the above findings and conclusions, I have no alternative but to deny this \nclaim in its entirety. \nIf  they  have  not  already  done  so,  the  respondents  are  directed  to  pay  the  court  reporter, \nVeronica Lane, fees and expenses within thirty (30) days of receipt of the invoice. \n IT IS SO ORDERED. \n \n \n                                ____________________________                                              \n       HONORABLE ERIC PAUL WELLS \n       ADMINISTRATIVE LAW JUDGE","preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H301714 SASHA JUSTICE, Employee CLAIMANT O’REILLY AUTOMOTIVE, INC., Employer RESPONDENT GALLAGHER BASSETT SERVICES, INC., Carrier RESPONDENT OPINION FILED JANUARY 29, 2024 Hearing before ADMINISTRATIVE LAW JUDGE ERIC PAUL WELLS in Fort Smith, Sebastian County...","fetched_at":"2026-05-19T22:58:52.899Z","links":{"html":"/opinions/alj-H301714-2024-01-29","pdf":"https://labor.arkansas.gov/wp-content/uploads/JUSTICE_SASHA_H301714-20240129.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}