{"id":"alj-H302634-2024-01-11","awcc_number":"H302634","decision_date":"2024-01-11","opinion_type":"alj","claimant_name":"Marissa Lara","employer_name":"J. B. Hunt Transport Inc","title":"LARA VS. J. B. HUNT TRANSPORT INC. AWCC# H302634 JANUARY 11, 2024","outcome":"granted","outcome_keywords":["granted:1"],"injury_keywords":["concussion","back"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/LARA_MARISSA_H304795_20240111.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"LARA_MARISSA_H304795_20240111.pdf","text_length":13040,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO. H304795 \n \nMARISSA M. LARA, Employee                                                      CLAIMANT \n \nJ. B. HUNT TRANSPORT INC., Employer                  RESPONDENT \n \nESIS INC., Carrier                    RESPONDENT \n \n \n OPINION FILED JANUARY 11, 2024 \n \n \nHearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Springdale, Washington \nCounty, Arkansas. \n \nClaimant represented by JARID M. KINDER, Attorney, Fayetteville, Arkansas. \n \nRespondents represented by JOSEPH H. PURVIS, Attorney, Little Rock, Arkansas. \n \n \n STATEMENT OF THE CASE \n  \n On December  7,  2023,  the  above  captioned  claim  came  on  for a hearing  at Springdale, \nArkansas. A pre-hearing conference was conducted on October 12, 2023, and a pre-hearing order was \nfiled on that same date. A copy of the pre-hearing order has been marked as Commission’s Exhibit \n#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 employee/employer/carrier relationship existed on June 26, 2023. \n 3.  Claimant sustained a compensable injury on June 26, 2023.  \n At the pre-hearing conference the parties agreed to litigate the following issues: \n            1.  Whether claimant is entitled to an attorney’s fee on temporary total disability benefits. \n All other issues are reserved by the parties. \n\nLara-H304795 \n2 \n \n The claimant contends that “The claimant, Marissa Lara, sustained a compensable head injury \non June 26, 2023, while working for J.B. Hunt Transport, Inc. in Gravette, Arkansas when he was hit \nin  the  head  by  falling equipment.  The  claimant  has  been given  the  restriction  by  Nicolas  J.  Daniel, \nMD, of no driving, however, no alternative light duty work has been offered. The claimant contends \nthat  he is owed  temporary  total  disability  benefits  from  June  26, 2023, through  a  date  yet  to  be \ndetermined. Due to the controversion of entitled benefits, the respondents are obligated to pay one \nhalf of the claimant’s attorney’s fees. Claimant reserves the right to raise additional contentions at the \nhearing of this matter.”  \n The respondents contend that “Claimant sustained a compensable incident on or about June \n26, 2023, which  the  respondents  accepted  from  the  outset  as  compensable.  The  respondents  have \npaid and are continuing to pay all sums that are due and owing.”\n From a review of the entire record, including medical reports, documents, and other matters \nproperly before the Commission, and having had an opportunity to hear the testimony of the claimant, \nthe following findings of fact and conclusions of law are made in accordance with A.C.A. §11-9-704: \n \n  FINDINGS OF FACT & CONCLUSIONS OF LAW \n \n \n 1.   The stipulations agreed to by the parties at a pre-hearing conference conducted on October \n12, 2023, and contained in a pre-hearing order filed that same date are hereby accepted as fact. \n 2.   Claimant's attorney is entitled to an attorney fee on temporary total disability benefits paid \nto claimant as a result of claimant’s compensable head injury. \n \n FACTUAL BACKGROUND \n During the prehearing conference, the parties advised that they believed this matter could be \nsubmitted on a stipulated record. To that end, both submitted briefs before the trial date, which were \n\nDelgado-H010070 \n3 \n \n \nadmitted as evidence by agreement of the parties. In reviewing those submissions, I see no issues of \nmaterial  facts  that  are  in  dispute. However,  respondents  did  not  agree  to  have  the  deposition  of \nclaimant  admitted,  and  as  such,  a  hearing  was  held  on December  7,  2023,  during  which  claimant \ntestified.  \nHEARING TESTIMONY  \n \n Claimant  testified that on  June  26,  2023, he  suffered  a  head  injury  while  working  for \nrespondent, J. B. Hunt as a local CDL truck driver. He was rushed to the emergency room where he \nreceived five staples in his head and testified that he had a concussion. Claimant was given medication \nthat restricted his ability to drive. After the staples were removed at the emergency room on July 8, \n2023, claimant  was  sent  by  respondent  to the Conservative  Care  Occupational  Health  Clinic. \nFollowing a physical examination with Dr. Daniel Nicholas on July 13, 2023, claimant’s work status \nwas limited in that he was not released to drive a truck.  \n Claimant said he sought the service of his attorney on July 31, 2023, because he was having \ntrouble getting in contact with Valerie Wilkerson, the adjuster that was handling his claim. Claimant \ntestified that he made multiple phone calls, left multiple voice mails, and sent emails and never heard \nback from her. He finally received compensation about two weeks after he met with his attorney.  \n On cross-examination, claimant said he reported the injury to his supervisor immediately after \nhe was injured. He did not fill out any paperwork from J. B. Hunt before being taken to the emergency \nroom and was on a leave of absence after the injury. Claimant said he had not been sent any paperwork \nregarding  the  injury.  He  spoke  with  the  claims  adjuster, Valerie  Wilkerson, on  June 28,  2023,  and \nanswered her questions. After that call, claimant said he tried calling the phone number that she gave \nto  him,  but  she  never  returned  his  call.  He  said  he  called  her  the next week  and again about  three \nweeks later. Claimant testified that he had voice mail and had not received any messages nor any email \n\nDelgado-H010070 \n4 \n \n \nfrom Ms. Wilkerson. He said he next heard from Ms. Wilkinson in the middle part of August 2023. \nClaimant agreed that July 31, 2023, was the first formal filing of his workers' compensation claim on \nthe form AR-C, and he heard from the respondents within three days of filing that claim. Claimant \nagreed that his medical bills have been paid, and that the check for his temporary total disability was \nreceived by his attorney.  \n I found claimant’s testimony to be credible and consistent  with  the  documentary  evidence \nsubmitted on his behalf.  \nREVIEW OF THE EXHIBITS \n \n Claimant provided the medical records that related to his injury, including those that restricted \nhim from driving from June 26, 2023, through September 7, 2023. The medical provider selected by \nrespondent, Conservative Care Occupational Health, completed Form AR-3 on both July 13, 2023, \nand July 27, 2023, both of which contain the contact information for respondent ESIS.  \n Claimant’s non-medical records contain the AR-C filed on July 21, 2023, the AR-2 filed by \nrespondent on August 3, 2023, and documents after those dates that have little bearing on the issue \nbefore me.  \n During claimant’s testimony, a question was raised about when respondent was notified about \nhis injury. To clarify the record, I marked as Commission Exhibit #2 the First Report of Injury or \nIllness filed by respondents, stating the employer was notified of the injury on June 26, 2023, and the \nadministrator was notified on June 28, 2023.   \n \nADJUDICATION \n \n  After reviewing the testimony and the evidence, I find the sequence of relevant events \nto be as follows:   \n\nDelgado-H010070 \n5 \n \n \nJune  26,  2023: Claimant  injured his  head while engaged  in  his  duties  for \nrespondents. He was  taken to  Gravette  Hospital by someone  at J.B.  Hunt, \nwhere  he received sutures  in  his  head. The  discharge  instructions  restricted \nclaimant from driving.  \nJune 28,  2023:    Valerie  Wilkerson,  a  senior  claims  specialist  with  ESIS, was \nnotified of the injury. She spoke with claimant on that day. \nLate   June/early   July:      An   appointment   was   made   for   Claimant with \nConservative Care Occupational Health, and communicated to claimant.  \nJuly 8, 2023:  The staples were removed from claimant’s head.  \nJuly 13, 2023:  Claimant had his first visit at Conservative Care Occupational \nHealth, where Physician’s Assistant J. Daniel Nicholas saw him. The restriction \non truck driving was continued due to “dizziness and decreased reaction time.”  \nPA Nicholas reported that the “return to work plan discussed with patient and \ncommunicated to his employer.”  A Form AR-3 was completed on this day, \nwith an estimated time for the duration of treatment to be “several weeks.”  \nJuly 27, 2023:  Claimant again saw PA Nicholas, and he was again restricted \nfrom  truck  driving. The  restriction  was  again  discussed  with  claimant  and \ncommunicated to respondent.  \nJuly 31, 2023:   Claimant filed Form-C requesting Temporary Total Disability \nBenefits. \nAugust 3, 2023- Form 2 filed by Respondents stating first date of Disability is \nJune 27, 2023, with July 4, 2023, being the first day of disability.  \nAugust 7, 2023: ESIS mails check postmarked August 7, 2023, for the past due \n\nDelgado-H010070 \n6 \n \n \ntemporary total disability payments to claimant’s counsel’s office, which was \nreceived on August 15, 2023. \n In its brief, respondents asserted that they “promptly responded within four days of having \nreceived electronic notice and immediately responded they accepted this claim as compensable.”  I \nagree; once an attorney filed the AR-C, respondents did what it should have done much earlier in the \nprocess. However, I disagree with respondent’s contention that “Nothing can be done until the \nclaimant  actually  starts  his  claim;” the  facts  in  the  case show  that  respondents  did  not  wait  for \nsomething to be filed before providing medical benefits as the law requires. Regarding temporary total \ndisability benefits, Arkansas Code Annotated §11-9-501 provides:  \n \n(a)(1) Compensation to the injured employee shall not be allowed for the first \nseven (7) days' disability resulting from injury, excluding the day of injury. \n(2) If a disability extends beyond that period, compensation shall commence \nwith the ninth day of disability. \n(3) If a disability extends for a period of two (2) weeks, compensation shall \nbe allowed beginning the first day of disability, excluding the day of injury.  \n \n Claimant credibly testified that he attempted to contact Valerie Wilkerson on several occasions \nand did not hear back from her. The records in evidence show that ESIS was provided with Form \nAR-3 on July 13, 2023, and July 27, 2023, which continued the claimant’s work restrictions. There was \nnothing  preventing  respondents  from starting  the disability  benefits  as  per A.C.A. §11-9-501  after \nclaimant had been off work for the requisite amount of time.  \n In Cleek v. Great Southern Metals, 335 Ark. 342, 981 S.W.2d 529, (1998) the Arkansas Supreme \nCourt held it “has long recognized that making an employer liable for attorney's fees serves legitimate \nsocial purposes such as discouraging oppressive delay in recognition of liability, deterring arbitrary or \ncapricious denial of claims, and insuring the ability of necessitous claimants to obtain adequate and \ncompetent legal representation.”   In its reply brief, respondent said “Unfortunately, it is a matter of \n\nDelgado-H010070 \n7 \n \n \nfact that once the Respondents receive a claim, they investigate.”  This overlooks that the injury caused \na  readily  apparent  injury  on  June  26,  2023,  that  claimant  was  taken  to  the  emergency  room  by  an \nemployee  of  J.B.  Hunt on  that  day,  that Ms.  Wilkerson knew  of  the  claim  on  June  28,  2023, had \ninterviewed claimant, had scheduled him for his appointment with Conservative Care Health Clinic, \nand had received the AR-3 forms completed by that provider during the month of July.  Ms. Wilkerson \nhad ample time to investigate this matter in the five weeks before claimant felt he needed to retain \ncounsel to  receive  disability  benefits. To find  for respondents,  I would have  to  believe  that  Ms. \nWilkerson was almost ready to  issue  that  first  check  when  she  got  the  notice  that  Mr.  Kinder  was \ninvolved, and his entry into the case had no influence on her decision to issue it. Lacking any evidence \nto  support  that  conclusion, I  find it was Mr. Kinder’s appearance  that  caused  the end  to  the \n“oppressive delay in recognition of liability” for indemnity benefits. The failure to pay those benefits \namounted to controversion; those (in)actions speak louder than the acceptance of the claim on the \nAR-C  filed  by  respondent  on  August  3,  2023. As  such, Mr.  Kinder is due an attorney’s fee as per \nA.C.A §11-9-715.  \nORDER \n \n Claimant's attorney is entitled to an attorney's fee on temporary total disability benefits paid \nto claimant. \nRespondents  are  liable  for  payment  of  the  court  reporter's  charges  for  preparation  of  the \nhearing transcript. \n IT IS SO ORDERED. \n                                                                                              \n_______     \n JOSEPH C. SELF \nADMINISTRATIVE LAW JUDGE","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H304795 MARISSA M. LARA, Employee CLAIMANT J. B. HUNT TRANSPORT INC., Employer RESPONDENT ESIS INC., Carrier RESPONDENT OPINION FILED JANUARY 11, 2024 Hearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Springdale, Washington County, Arkansas. Claiman...","fetched_at":"2026-05-19T22:58:19.472Z","links":{"html":"/opinions/alj-H302634-2024-01-11","pdf":"https://labor.arkansas.gov/wp-content/uploads/LARA_MARISSA_H304795_20240111.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}