{"id":"alj-H303140-2024-12-03","awcc_number":"H303140","decision_date":"2024-12-03","opinion_type":"alj","claimant_name":"Julie Moore","employer_name":"Greenbrier Nursing & Rehab Cntr","title":"MOORE VS. GREENBRIER NURSING & REHAB CNTR. AWCC# H303140 December 03, 2024","outcome":"denied","outcome_keywords":["dismissed:1","granted:1","denied:4"],"injury_keywords":["back","hip","lumbar","knee","shoulder","fracture","strain"],"pdf_url":"https://www.labor.arkansas.gov/wp-content/uploads/MOORE_JULIE_H303140_20241203.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"MOORE_JULIE_H303140_20241203.pdf","text_length":37746,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nAWCC FILE No H303140 \n \nJULIE MOORE, EMPLOYEE        CLAIMANT \n \nGREENBRIER NURSING & REHAB CNTR., EMPLOYER        RESPONDENT \n     \nINDEMNITY INS. CO. OF N. AMERICA, CARRIER/ \nESIS, INC., TPA                  RESPONDENT \n \n \n \nOPINION FILED 3 DECEMBER 2024 \n \n \nHeard before Arkansas Workers’ Compensation Commission (AWCC) Administrative Law \nJudge JayO. Howe on 4 September 2024 in Little Rock, Arkansas. \n \nRainwater Holt & Sexton, Ms. Laura Beth York, appeared for the claimant. \n \nNewkirk & Jones, Mr. Eric Newkirk, appeared for the respondents. \n \nI.  STATEMENT OF THE CASE \n \nThe above-captioned case was heard on 4 September 2024 in Little Rock, Arkansas, \nafter the parties participated in a prehearing telephone conference on 28 May 2024. A \nPrehearing Order, admitted to the record without objection as Commission’s Exhibit No 1, \nwas entered on the day of the conference.  \nThat Order also set forth the following STIPULATIONS: \n1.  The AWCC has jurisdiction over this claim. \n2.  An employee/employer/TPA relationship existed at all relevant times, including \non 29 April 2023. \n \n3.  The respondents have controverted this claim in its entirety. \n \nThe Order stated the following ISSUES TO BE LITIGATED: \n\nJ. MOORE- H303140 \n2 \n \n1. Whether the claimant sustained a compensable injury to her back/spine and \nright hip\n1\n by specific incident on 29 April 2023. \n \n2. Whether the claimant is entitled to medical and indemnity benefits associated \nwith a compensable injury. \n \n3. The applicable average weekly wage should the claimant be found to have \nsustained a compensable injury.\n2\n \n \n4.  Whether the claimant is entitled to an attorney’s fee. \nThe parties’ CONTENTIONS, as set forth in their prehearing questionnaire \nresponses, were incorporated into the Prehearing Order. In her prehearing questionnaire, \nthe claimant contended that she sustained a compensable injury while transporting a very \nheavy patient in a rolling bed that was very difficult to control, causing pain in her lower \nback, hip, and buttocks. She subsequently obtained an MRI scan that showed disc bulges in \nher lumbar spine. She clarified, however, through counsel at the beginning of the hearing \nthat she was not transporting a patient in the bed. Rather, she was attempting to swap out \nthe patient’s broken bed for another when she injured herself. She contends that she \nsuffered a compensable injury in the course and scope of her employment and is, therefore, \nentitled to the accompanying benefits. \nThe respondents, on the other hand, contend that the claimant cannot establish a \ncompensable injury occurring on 29 April 2023. They assert that no one witnessed an \ninjury-causing incident on 29 April 2023 because no incident occurred. Alternatively, the \nrespondents contend that they are entitled to any offsets available under applicable law. \n \n1\n The Prehearing Order included only a compensable injury to the claimant’s back/spine. \nThe issue of whether the claimant also sustained a compensable injury to her right hip was \nadded without objection at the outset of the hearing. See TR at 12.  \n2\n The Prehearing Order anticipated the parties agreeing on an average weekly wage, but at \nthe time of the hearing, it was agreed that the applicable wage amount would, instead, be \nan Issue litigated at the hearing. See TR at 10, 12. \n\nJ. MOORE- H303140 \n3 \n \n Several WITNESSES testified at the hearing. The claimant testified on her own \nbehalf. The respondents called Ms. Becky Wheeler (the nurse training the claimant on 29 \nApril 2023), Ms. Amanda Ivy (the charge nurse on 29 April 2023), and Ms. Shannon Casey \n(a Human Resources (HR) officer for the respondent-employer). \nThe EVIDENCE considered  in this claim consisted of the hearing testimony along with \nthe following EXHIBITS: Commission’s Exhibit No 1 (the Prehearing Order), Claimant’s \nExhibit No 1 (four index pages and 80 pages of medical records), Claimant’s Exhibit No 2 (an \nindex page and 39 pages of text message print-outs), and Claimant's Exhibit No 3 (two \npages of facility work/shift scheduling sheets (highlighting was included in the originals)); \nRespondents’ Exhibit No 1 (an index page and 64 pages of non-medical records) and \nRespondents’ Exhibit No 2 (an index page and 33 pages of medical records). \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n Having reviewed the record as a whole and having heard testimony from the \nwitnesses, observing their demeanor, I make the following findings of fact and conclusions \nof law under ACA § 11-9-704: \n1. The AWCC has jurisdiction over this claim. \n \n 2. The previously-noted stipulations are accepted as fact. \n \n3. The claimant failed to prove by a preponderance of the evidence that she \nsuffered compensable injuries to her back/spin or hip by specific incident. \n \n4.   The claimant, thus, failed to prove by a preponderance of the evidence that \nshe is entitled to the benefits sought. \n \n5. The issue of determining the claimant’s average weekly wage is moot. \n \n6. The claimant failed to prove by a preponderance of the evidence that she is \nentitled to an attorney’s fee. \n \n \n \n\nJ. MOORE- H303140 \n4 \n \nIII.  HEARING TESTIMONY  \nClaimant Julie Moore \n The claimant testified that 29 April 2023 was her first shift working as a trainee \nnursing assistant at the respondent-employer’ nursing home. She was assigned to the night \nshift with Ms. Becky Wheeler as her trainer. Some time into the shift, the two were made \naware of a broken footboard at the end of one of a patient’s beds. \n According to the claimant, she and Ms. Wheeler moved the patient from the bed and \nplaced her in a chair using a Hoyer Lift. She then stated that Ms. Wheeler stayed with the \npatient while she was responsible for moving the empty bed down to another hallway and \nbringing back a new bed to replace the first one. She testified that the bed was difficult to \nkeep rolling straight down the hallway and that she ran the bed into the nurse’s station by \naccident. \nSo I took the bed out of the room. Well, me and Becky, actually, got it out \nof the room. I started down the hallway... Come to find out, when I started \nmoving the bed, the bed was like moving sideways and I couldn’t keep it \nstraight. So I guess, you could say, I fought with the bed up until I got to the \nnurse’s station. I couldn’t roll the bed straight. It was like—I don’t know how \nto describe it. The whole bed was broke, like broke down. I don’t know how to \ndescribe that. It just wouldn’t roll straight. It wouldn’t cooperate; so I fought \nwith the bed and I ended up hitting the nurse’s station. The bed squirreled, \nlike I said, it was hard to control. I didn’t see anybody on the floor or I’d \nasked for help, but I didn’t see anybody. \nWhen I hit—except there was a nurse or I have to assume she was a \nnurse. I don’t really know what she was at the nurse’s station, because it was \nmy first night, I don’t know names and faces yet. I hit the nurse’s station. She \nasked me was I okay. I said, “No.” We were talking about—briefly about, you \nknow, “Sorry I hit the nurse’s station. I didn’t mean to.” \n \n[TR at 33-34.] \n The claimant explained that the layout of the facility was like a wheel, with the \nnurse’s station at the center and the hallways with patient rooms like spokes running form \nthe center of the wheel. When the bed hit the nurse’s station, “it stopped. When a bed hits a \nsolid thing, it stops, apparently.” [TR at 40.]  \n\nJ. MOORE- H303140 \n5 \n \nThe claimant realized at that time that she felt a burning sensation in her buttocks. \nThe claimant described some dialogue back-and-forth with the nurse at the station before \ngoing on about moving the empty bed down the hall: \n The nurse said, “Are you okay?” I said, “No, something’s wrong,” and I \nsaid, “Well, what do I do with the bed?” ‘Cause, then, I thought you know, \n“Hey, this all is gonna stop.” Her, assuming she’s a nurse, you know, we’re \ngoing to figure something out, ‘cause I shouldn’t have had this pain. ‘Cause I \ndidn’t—I’d never had it before. I didn’t know how to describe it. I said, \nstinging at first, but then, I told her it was like a burning, like you pulled \nsomething. You know, that’s what I was thinking, you know. Anyway, she \nsaid she didn’t know what to do with the bed. I told her I was to take it to 300 \nHall. She said, “Then that’s what you need to do.” So I finished taking it \ndown to 300 Hall, still fighting with it, still arguing with it. I get it down as \nfar as I can. I don’t know, someone come told me, “Becky needs that bed now.” \nSo I go to the room, try to move the bed. \n \n[TR at 40-41.] \n When she arrived at the replacement bed, the claimant testified: \nI get in there. I think, I unlock it. I can’t move it. When I pulled on it, \nthinking it’s unlocked, I pulled on it, and then, I realized, “Oh no, I’m in \ntrouble,” ‘cause then, I start getting a throbbing in my back and in my right \nside. So I don’t know what’s going on. I’m like, “Oh, hang on. No, I’m \nstopping.” And so I left that room and I went and got Becky. I said “Becky, I \ncan’t move the bed. Something is wrong with my back. I hit the nurse’s \nstation.” I tried to explain it to her. But during this time, there was a lot of \ncommotion going on in this room, because when I went in there, we had \nrealized... Unbeknownst to me, there was a emergency going on with a \nresident in the other bed. And so there was a lot of commotion in there. It’s \ncalled a diabetic emergency... So there was a lot of people in there and I was \ntrying to explain to Becky what happened. She’s like, “where’s the bed?” I \nsaid, “I didn’t get it out of the other room,” – the new bed, “out of the other \nroom, because I couldn’t move it.” \n \n[TR at 41-43.] \n After getting the patient’s bed replaced, the claimant stated that she went back to \nthe nurse’s station where she described squatting down “to you know, a squat position and \nwe were talking about me getting hurt, they said, “Well, it’s probably just pulled muscles \nthat you haven’t used.” Which I thought, “Okay, you know, that sounds logical. Yeah, I was \nfighting with the bed.” [TR at 45.] The claimant then said that she was unable to get up \n\nJ. MOORE- H303140 \n6 \n \nuntil the others had left the station. She had to brace against an empty chair to help raise \ninto a standing position. The claimant did not recall any further discussion of the incident \nthrough her shift that night. \n The claimant testified that after her shift, she went home and to bed. She woke up \nin pain and had to have her husband’s help to first get out of bed and then to get up from \nthe toilet. At some point thereafter, she began a text thread with Ms. Shannon Casey, her \nHR contact. See Claimant’s Exhibit No 2.  \n After some discussion with Ms. Casey and others, the claimant eventually presented \nfor covered treatment at ARCare on 4 May 2023. She returned for additional treatment on \n8 May 2023. The claimant was not happy with the treatment had received up to that point, \nso she sought treatment with Baptist Urgent Care. She stated that she wanted to be \nreferred to an orthopedic provider, but that was denied. She learned that her claim was \nbeing denied around that time, so she continued to seek treatment on her own. \n On 12 October 2023, the claimant underwent an MRI scan of her lumbar spine that \nrevealed some disc protrusion at L3-4. She stated that she sometimes feels tingling or \nnumbness in her buttocks and hip. An MRI of her hip was performed on 9 November 2023 \nthat revealed, “a couple of tears and from what I’ve read, I need—my understanding of \nwhat I read, I need a full hip.” [TR at 64.] She said that Dr. Adam Smith then performed \nsome hip injections that were not of significant benefit and eventually recommended \nsurgery.  \n The claimant denied previously seeing a doctor for a back or hip injury. She \nacknowledged a serious motor vehicle accident in the late 1980s that caused her to be \nejected from the vehicle, but she could not remember what injuries she sustained. She also \ndiscussed a previous injury to her toe and trouble with her right leg and knee that she \nrelated possibly to sciatica. The claimant stated that she underwent a nerve conduction \n\nJ. MOORE- H303140 \n7 \n \nstudy, some therapy, and some form of radiofrequency treatment for her leg/knee trouble. \nShe also noted dealing with Plantar Fasciitis while working as an EMT for Pafford in the \npast. But, again, she denied any previous low back or right hip injuries. \n On cross examination the claimant stated that her work for the respondent-\nemployer consisted of a day of orientation and her first shift on 29 April 2023. She \nacknowledged that her employment was probationary during that time. She also \nacknowledged receiving treatment in 2018 for right leg neuropathy, but denied any hip \ninjury or back problems prior to the incident at issue in this claim. \n A:  It seemed like the whole bed had issues. \n Q:  Okay. And that’s what led you to hit the nurse’s station, right? \n A:  Yes. \n Q:  And that’s when everything kind of changed, is that correct? \n A:  Yes. \n Q:  You knew, then, you had hurt yourself, when you hit that nurse’s station? \n A:  Yes. \nQ:  That was the first time up until that—at any point, that you knew that you had \nanything wrong with your low back or your hip or anything of that region, is that \nright? \n A:  Correct. \n \n[TR at 89-90.] \n \n The claimant acknowledged that in her deposition she described the employee that \nshe spoke with at the nurse’s station as the charge nurse. The respondents’ counsel asked \nabout discrepancies in the claimant’s testimony: \n \nQ:  And then, you indicated that you went down the hall and tried to get this other \nbed and that you were having such pain and discomfort that you had to go get Becky \nto come help you? \n A:  Yes. \nQ:  Do you recall telling me different at the deposition that you, actually, were in \nthat room and you were hurting so bad that you had to have them go get Becky to \ncome help you? \nA:  I did try to get somebody to go and after a period of time, I got tired of waiting; so \nI went and got Becky. \nQ:  Okay. So where you told me on page 37 of your deposition that, “She came and \nhelped me and said, ‘What’s wrong,’ I can’t even move this one, this bed.” You’re \nsaying that was after you went and got her instead of her coming to you? \n\nJ. MOORE- H303140 \n8 \n \n A:  Yes. \n Q:  And you said that you complained to the nurse that you had hurt your back? \n A:  I did. \n \n[TR at 91.] She went on to say that she complained about injuring her back at least three \ntimes that night. Discussing the time she spent dealing with the beds, she said that it could \nhave been one or three or ten minutes while the patient was waiting for a replacement bed \nto be brought in.  \nQ:  The whole time this resident is in that Hoyer Lift waiting for you to return with \nthat bed, right? \n A:  Correct. \n \n[TR at 93.] When asked why the replacement bed would not have been brought to the \npatient’s room first, the claimant stated that she was only doing what she was told by Ms. \nWheeler.  \n The claimant testified that Ms. Wheeler definitely saw her walking with an altered \ngait and that she was aware of her injury after hitting the nurse’s station with the bed. \nWhen asked why she did not report running the bed into the nurse’s station as the cause of \nher injury when texting with Ms. Casey, the claimant responded, “Well, I figured she’d call \nme and set up a conversation for me to come in and fill out paperwork and stuff.” [TR at \n96.] She also acknowledged, however, that she did not mention hitting the nurse’s station \nwhen filling out the Form AR-N, Employee’s Notice of Injury. See Respondents’ Exhibit No 1. \n Her cross examination continued with the claimant acknowledging that the Form \nAR-C, Claim for Compensation, that she filled out did not mention a collision with the \nnurse’s station or an injury to her hip. The claimant stated that she told her medical \nproviders about the nurse’s station incident. But when confronted with records stating, \n“Moving bed, the patient in it,” she said that the doctor must have committed an error \nbecause those were not her words. [TR at 99; See Respondents’ Exhibit No 2 at 23.] \n Q:  Okay. And it says, “She noticed pain the next day.” Do you see that? \n\nJ. MOORE- H303140 \n9 \n \n A:  Yes. \nQ:  You didn’t say anything in here about hurting yourself that night or having pain \nthat night or hitting the nurse’s station, did you? \n A:  No. \n Q:  Let’s go to the next time. Maybe you told the next doctor, then...  \nAbout midway down and it says in the history of present illness—can you read what \nit says right there starting with “the patient denies?” \n A:  Where at? \n Q:  “Patient denies...” \nA:  “Patient denies any specific injury. I just know it happened sometime between \n3:00 and 7:00 a.m., but I’m not sure what exactly happened or when it was. It was \nmy first day on the job. I was train...” \n \n[TR at 100.] \n . . .  \nQ:  That’s okay. So you told them you didn’t know when it occurred, what happened, \nand you had no specific injury. Is that what you told them? \n A:  No. \n Q:  So this is wrong? \n A:  It’s kinda wrong. \n \n[TR at 101.] After some further disagreements on what was reported in the records and \nwhat the claimant actually said, the testimony returned to when she was first pushing the \nbed down the hallway. \n Q:  And this was unlike any other bed you’ve ever pushed before, is that fair to say? \n A:  I don’t know how to answer that. \nQ:  Well, it just seems like you’re trying to say—my understanding of it, you’re \ntrying to say you need a total hip replacement now, because of an event, where \nyou’re simply pushing a bed down a hallway. And you’re saying it’s so out of control \nthat you hurt yourself to the point that you got to have a hip replacement now. Is \nthat you’re testimony? \n A:  I don’t know how to answer that one. \n \n[TR at 104-105.] \n On redirect examination the claimant noted that some of her initial paperwork \nincluded a report of an injury to her hip. On recross examination the claimant restated that \nshe knew that she was injured as soon as the bed hit the nurse’s station and that she told \nthe nurse at the station and Ms. Wheeler about her injury. \nRespondents’ Witness Ms. Becky Wheeler \n\nJ. MOORE- H303140 \n10 \n \nMs. Wheeler testified that she is a Certified Nursing Assistant and Medication Aide \nCertified. She was the claimant’s trainer on the night in question. Her testimony on the \nnight’s events differed significantly from the claimant’s: \nA:  ...the nurse came and said, the resident had broken her footboard off her bed, ‘cause \nshe slides down and pushes it. So we went and got—we went down 300 Hall together, \nwe got a new bed, took it down to 100 Hall— \nQ:  And you say “we”? \nA:  Yes. \nQ:  You and Ms. Moore? \nA:  Me and Julie... she was pushing, I was pulling, because the beds are awkward; so \nthey’re long; so two people is normally how we do that. We took the new bed down the \nhall. [The patient was transferred to the new bed.] I was changing her and getting this \nlift sheet from under her and Julie said, I will take the old bed down to the end of the \nhall,” and I said, “No, wait on me.” And I came out and she was already pushing the old \nbed towards the nurse’s station and that’s when I stopped her and said, “We do these \ntogether.” \n \n. . .  \n \nQ:  Okay. Did she indicate in any way, shape, or fashion that she was hurt? \nA:  No. \nQ:  Why was it so important for you to be with her? \nA:  Because I’m a trainer. We don’t allow—we don’t allow trainees to be alone at—\n[trainees] are not allowed to be alone during their training period. \nQ:  And how long does that training period last? \nA:  Three days. \n \n[TR at 114.] \n Ms. Wheeler went on to testify that, training requirements aside, using two people \nto move beds makes maneuvering them less awkward. She said that the claimant made no \ncomplaints to her about pain or discomfort during their shift together and that she did not \nnotice the claimant limping or otherwise acting as if she was injured or uncomfortable. She \nalso took issue with the claimant’s version of the “diabetic emergency” happening in the \nroom with the broken footboard. That other patient, she explained, would complain of \nhaving low blood sugar when she wanted chocolate milk. A nurse noticed the broken \nfootboard when taking the chocolate milk to the other patient and then requested that they \nswitch out the beds, she testified.  \n\nJ. MOORE- H303140 \n11 \n \n On cross examination, Ms. Wheeler addressed the general awkwardness of moving \npatient beds around. \nQ:  Okay. Now, you admitted that the beds in question were very difficult to move, is \nthat correct? \nA:  It’s just because they’re long. They roll fine, it’s just they’re awkward, because \nthey’re long. \n Q:  Okay. \n A:  I mean, they’re beds. \n Q:  Okay. And the bed in question that night, was it difficult to move? \n A:  No. \n \n[TR at 122-123.] \n Explaining more about the bed needing to be replaced, the witness testified that the \nfootboard was knocked loose by the patient sliding down in the bed and using the board to \nkick herself back up in the bed. The footboard being broken did not mean that the \nundercarriage of the bed was damaged or mean that it was more difficult to maneuver.  \n Respondents’ Witness Amanda Ivy \n Ms. Ivy testified that she was working as the charge nurse on 29 April 2023. She did \nnot recall the claimant striking the nurse’s station with a bed or indicating in any way that \nshe had been injured. She said that Ms. Casey was the first to ask anything about the \nclaimant alleging an injury, and she reported that she was not aware of anything. \n Respondents’ Witness Ms. Shannon Casey \n Ms. Casey testified that she works in HR for the respondent-employer. She \nconfirmed that 29 April 2023 was the claimant’s first assigned shift at the facility and that \nshe was a probationary employee at the time, who was not guaranteed work hours or a set \nschedule during the probationary period. She explained that the work schedules in evidence \nrepresented what the claimant and others would have likely covered if the claimant had \ncontinued her work at the facility. \n \n\nJ. MOORE- H303140 \n12 \n \n Claimant on Rebuttal \n The claimant testified again at the end of the proceedings to dispute Ms. Ivy being \nthe nurse who was seated at the nursing station when she ran into it with the bed. She said \nthat she couldn’t recall whom was there at that time, but doubted that it was Ms. Ivy. \n     Medical and Documentary Evidence \n The claimant presented to ARCare on 4 May 2023 and received an off-work note \nexcusing her absence from work until 8 May 2023. Right shoulder and right hip pain were \nnoted. See Claimant’s Exhibit No 1 at 2. The clinic note from that visit, in part, states: \nPatient reports she was bending, stooping and twisting and moving [a] bed \nthe patient in it and that she noticed pain the next day. \n \nSee Respondents’ Exhibit No 2 at 23. \nAccording to another ARCare return-to-work note, she was seen again 8 May 2023 \nwith continued pain in her right shoulder and hip and low back pain. She was to return to \nwork the following day with sedentary restrictions “until evaluated by ortho.” See \nClaimant’s Exhibit No 1 at 3. \n On 15 May 2023, the claimant was seen by Dustin Van Pelt, P.A., at a Baptist \nUrgent Care clinic. That visit note provides: \nNow wanting a second opinion from a different facility. Report injury \noccurred on 04/29/2023, “I was moving bed out of a room and then moved it \ndown to another hall. A little bit later I was squatting down and I thought to \nmyself that I couldn’t get back up. The next day I was so sore and couldn’t \nhardly get out of bed. It was my first day training so I didn’t want [to] leave \nthat night because I didn’t want to get fired.” Patient denies any specific \ninjury. “I just know it happened sometime between 3:00 a.m. to 7:00 a.m. But \nI am not sure what exactly happened or when.” \n \nId. at 4. She was diagnosed with right side sciatica and referred to physical therapy and \northopedics for a possible SI Joint Radio Frequency Ablation. Id. at 5, 6. \n\nJ. MOORE- H303140 \n13 \n \n The claimant returned to the urgent clinic on 23 May 2023 complaining of no \nimprovement in her pain and of her referrals not being set up through her employer’s \nworkers’ compensation carrier. Id. at 8. \n On 22 June 2023, the claimant presented to Conway Orthopedic & Sports Medicine \nCenter (COSMC). She reported right buttock pain after moving a “broken and very difficult \nto maneuver” bed down a hallway and “that she did not fall or suffer a specific injury but \nbegan experiencing pain when she stood up from the forward flexed position she had been \npushing the bed down the hallway.” Id. at 12. X-ray imaging from the visit revealed: \n... moderate to severe L5-S1 disc height loss, large anterior and lateral \nosteophytes L3 with small anterior osteophytes at L5. No actue abnormality \nor fracture. Slight loss of lumbar lordosis. \n \nAP pelvis and lateral view of the right hip obtained today in clinic show \nnormal bony alignment, well-maintained femoral acetabular cartilage \nintervals. Normal soft tissues. \n \nId. at 15. The impression was stated as Lumbar Spondylosis and Right Lumbar \nRadiculopathy. \n  The claimant made an initial visit to a pain management provider on 18 August \n2023, and lumbar epidural steroid injections were ordered. Id. at 22.  \n On 24 August 2023, the claimant returned to COSMC, where a lumbar MRI was \nagain recommended to evaluate for right sided foraminal stenosis. Id. at 27. \n After presenting to OrthoArkansas on 18 September 2023, a lumbar MRI scan was \nrecommended again. That scan was performed on 12 October 2023 and revealed some \ndegenerative changes. Id. at 37. The notes from her follow-up with OrthoArkansas on 16 \nOctober 2023 provide: \nShe has some disc protrusion and lateral recess stenosis worse at L5-S1 on \nthe left. I do not see any acute objective injury on the right side that would \nreally explain her symptoms. She has some lateral recess narrowing and a \nlittle foraminal narrowing at L5-S1 on the right.  \n\nJ. MOORE- H303140 \n14 \n \n... I do not see an obvious objective injury in her spine. She keeps telling me \nthat her pain is really in her hip and she thinks her hip is the issue. \n \nShe was then referred to Dr. Adam Smith for a hip exam and recommended for a \ntransforaminal steroid injection. Id. at 41. \n The claimant first saw Dr. Smith on 26 October 2023, and he assessed persistent \nright hip pain with likely abductor tear. Another MRI was recommended. Id. at 45. \n An MRI scan of the claimant’s hip was performed on 9 November 2023, and Dr. \nSmith discussed the findings with the claimant that day: \nMRI was reviewed and does show arthritic change in the hip with loss of the \njoint space and subchondral sclerosis as well as degenerative labral tearing. \nShe does have some partial tears of her proximal hamstrings and abductors. \n \nAssessment: Right hip osteoarthritis. \n \nId. at 50. \n On 29 February 2024, the claimant returned to Dr. Smith for additional treatment \noptions. They discussed scheduling surgery after she quit smoking for at least two weeks. \nDr. Smith noted: \nWith regards to whether or not this could be related to a work accident I \ncannot say with certainty but she does state that she was not having pain \nbefore [29 April 2023] and only started having pain afterwards so it is likely \nthat at least contributed somewhat. \n \nId. at 54. \n The text messages between the claimant and Ms. Casey show that the claimant first \nsent a message late in the afternoon of Sunday, 30 April 2023, saying that she was sore, \nhaving trouble moving, and felt like she pulled something. See Claimant’s Exhibit No 2. The \nexchange continues with the claimant stating on Tuesday, 2 May 2023, “I think it’s from \npushing and pulling on the bed a resident broke and fighting it to get down the hall.” She \nwent on to state that, “the other bed didn’t want to roll either, it took Becky and I to get it \n\nJ. MOORE- H303140 \n15 \n \ndown the hall and into the room.” Subsequent messages were about seeking treatment and \ncoordinating care. \nIV.  ADJUDICATION \nThe stipulated facts, as agreed during the prehearing conference, are outlined above. It \nis settled that the Commission, with the benefit of being in the presence of the witnesses \nand observing their demeanor, determines a witness’ credibility and the appropriate weight \nto accord their statements. See Wal-Mart Stores, Inc. v. VanWagner, 337 Ark. 443, 448, 990 \nS.W.2d 522 (1999).   \nA. The Claimant Failed to Prove by a Preponderance of the Evidence That \nShe Suffered a Compensable Injury by Specific Incident. \n \nUnder Arkansas’ Workers’ Compensation laws, a worker has the burden of proving by a \npreponderance of the evidence that she sustained a compensable injury as the result of a \nworkplace incident. Ark. Code Ann. § 11-9-102(4)(E)(i). A compensable injury must be \nestablished by medical evidence supported by objective findings. Ark. Code Ann. § 11-9-\n102(4)(D). Objective medical findings are those findings that cannot come under the \nvoluntary control of the patient. Ark. Code Ann. § 11-9-102(16)(A)(i). Causation does not \nneed to be established by objective findings when the objective medical evidence establishes \nthat an injury exists and other nonmedical evidence shows that it is more likely than not \nthat the injury was caused by an incident in the workplace. Bean v. Reynolds Consumer \nProds., 2022 Ark. App 276, 646 S.W.3d 655, 2022 Ark. App. LEXIS 276, citing Wal-Mart \nStores, Inc. v. VanWagner, supra. \nThe claimant alleges that her injury occurred by specific incident. The claimant \nmust establish four (4) factors by a preponderance of the evidence to prove a specific \nincident injury: (1) that the injury arose during the course of employment; (2) that the \ninjury caused an actual harm that required medical attention; (3) that objective findings \n\nJ. MOORE- H303140 \n16 \n \nsupport the medical evidence; and (4) that the injury was caused by a particular incident, \nidentifiable in time and place. See Cossey v. G. A. Thomas Racing Stable, 2009 Ark. App. \n666, 344 S.W.3d 684. A causal relationship may be established between an employment-\nrelated incident and a subsequent physical injury based on the evidence that the injury \nmanifested itself within a reasonable period of time following the incident, so that the \ninjury is logically attributable to the incident, where there is no other reasonable \nexplanation for the injury. Hall v. Pittman Construction Co., 234 Ark. 104, 357 S.W.2d 263 \n(1962). \nA claimant's testimony is never considered uncontroverted. See Nix v. Wilson World \nHotel, 46 Ark. App. 303, 879 S.W.2d 457 (1994). The determination of a witness' credibility \nand how much weight to accord to that person's testimony are solely up to the Commission. \nSee White v. Gregg Agricultural Ent., 72 Ark. App. 309, 37 S.W.3d 649 (2001). The \nCommission must sort through conflicting evidence and determine the true facts. Id. In so \ndoing, the Commission is not required to believe the testimony of the claimant or any other \nwitness, but may accept and translate into findings of fact only those portions of the \ntestimony that it deems worthy of belief. Id. \nHere, the claimant alleges that she injured her back/spine and hip when an empty \nbed she was pushing down a hallway ran into a nurse’s station and suddenly stopped. Her \nversion of the events leading up to and after her being with the bed at the nurse’s station \nvary greatly from those relayed by the two other witnesses who were there that night. The \nclaimant clearly testified that she injured herself when the bed she was pushing hit the \nnurse’s station, that she was immediately aware of her injury or injuries, and that she spoke \nabout injuring herself immediately after it happened and then again later.  \n\nJ. MOORE- H303140 \n17 \n \nThe workplace forms she completed and the notes from her doctor visits, however, \nmake no mention of her being injured by crashing an out-of-control bed into a nurse’s \nstation. Instead, she consistently relayed, more generally, that she seemed to have hurt \nherself at some point when she was moving patient beds. Those later reports do not reflect \nher describing a particular incident the mechanism of injury being a collision with a \nnursing station. \nI do not find that the claimant proved by a preponderance of the evidence that she \nsuffered a compensable injury by way of pushing a bed into a nurse’s station. Nor do I find \nthe claimant’s testimony to be credible.  \nThe claimant’s testimony and the evidence are filled with inconsistencies. First, she \nseems to claim that the first bed was either very difficult to move or, alternatively, moving \nwildly out of control and in such a way that it impacted the nursing station with enough \njarring force that she injured her back, her shoulders, and her hip. She described pushing it \n“hunkered down” and with “some momentum.” But when asked plainly how she and the \nbed could have been “so out of control that you hurt yourself to the point that you got to \nhave a hip replacement now,” she unconvincingly responded, “I don’t know how to answer \nthat one.” \nAlso, the claimant testified that she was unsure about whom she spoke with at the \nnurse’s station after supposedly running into it with a bed, saying that she assumed the \nperson could have been a nurse, but because it was her first night, she didn’t know “names \nand faces” yet [TR at 34]. She then acknowledged, however, that at her deposition she said \nthat the night’s charge nurse was the person she spoke with. Ms. Ivy credibly testified that \nshe was the charge nurse that night, that she never saw the claimant run a bed into the \nnurse’s station, and that the claimant never spoke to her about any injury. \n\nJ. MOORE- H303140 \n18 \n \nSimilarly, the claimant testified at the hearing that when she couldn’t get the \nreplacement bed to move, she went looking for Ms. Wheeler’s help. But she acknowledged \nthat at her deposition she testified that she had asked others to go find Ms. Wheeler for her \nbecause she was in pain. It’s unclear exactly when or to whom she attributed a statement \nabout “Becky needs that bed now,” but that is another uncorroborated exchange that does \nnot fall neatly into her supposed timeline. \nThe claimant testified that she spoke about injuring herself with Ms. Wheeler and \nothers at least three times- when she hit the station, when she first told Ms. Wheeler she \nneeded help with the second bed, and when they all gathered afterwards at the nursing \nstation. Ms. Wheeler testified credibly that the claimant did not make any report or an \ninjury or appear injured at any point during their shift together. None of the claimant’s \nsupposed reports of injuries or discussions of injuries were corroborated. The claimant’s \nversion of the first conversation with Ms. Wheeler is also suspect, in that she testified that \nMs. Wheeler left the bedside of a patient in a “diabetic emergency” to retrieve and bring \nanother bed into an already crowded room with “a lot of commotion” and “a lot of people in \nthere.” It would strain a common sense of patient care priorities to accept that occurring \nduring a patient care emergency. \nMs. Wheeler’s testimony and version of events, conversely, seems credible. She \nexplained that they first learned about the bed being broken after another nurse delivered \nchocolate milk to a patient who said her blood sugar felt low. The claimant was supposed to \nstay with Ms. Wheeler throughout the shift, and they both brought a replacement bed to \nthe room before lifting the patient away from the broken bed. After the beds were \nexchanged, the claimant started to move the broken bed and was stopped by Ms. Wheeler \nwithout any apparent incident. To Ms. Wheeler’s knowledge, and to that of Ms. Ivy, the \nshift continued on unremarkably. Again, a common sense approach to replacing a broken \n\nJ. MOORE- H303140 \n19 \n \nbed for a bed-bound patient tracks with Ms. Wheeler’s version of events, where they first \nbrought over a bed to replace the broken one. \nThe claimant attributed her story about the bed hitting the nurse’s station not \nappearing in the medical records to error on the part of her providers. She suggested the \nsame for a note indicating that she was injured while wheeling a bed with a patient in it. \nFinally, even if the claimant could provide credible evidence to meet her burden on \nthe incident actually happening, she failed to present objective findings of an injury. See \nHall, supra.  \nIn short, the claimant failed to provide a preponderance of evidence in support of her \nversion of how she suffered compensable injuries to her back/spine or hip by specific \nincident. Her claim must fail for that reason. \nB. The Issue of the Applicable Average Weekly Wage is Moot. \n \nHaving found that the claimant failed to meet her burden on proving that a \ncompensable injury was sustained, determining her average weekly wage for the purpose of \nbenefits is moot. \nC. The Claimant Failed to Prove by a Preponderance of the Evidence that She \nis Entitled to an Attorney’s Fee. \n \nFor the reasons explained above, the claimant has failed to prove that she is entitled \nto an attorney’s fee. \nV.  ORDER \n Consistent with the above Findings of Fact and Conclusions of Law, this claim for \ninitial benefits is DENIED AND DISMISSED. \nSO ORDERED. \n \n________________________________ \n       JAYO. HOWE \n       ADMINISTRATIVE LAW JUDGE","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION AWCC FILE No H303140 JULIE MOORE, EMPLOYEE CLAIMANT GREENBRIER NURSING & REHAB CNTR., EMPLOYER RESPONDENT INDEMNITY INS. CO. OF N. AMERICA, CARRIER/ ESIS, INC., TPA RESPONDENT OPINION FILED 3 DECEMBER 2024 Heard before Arkansas Workers’ Compensation Commission (AWCC)...","fetched_at":"2026-05-19T22:45:01.786Z","links":{"html":"/opinions/alj-H303140-2024-12-03","pdf":"https://www.labor.arkansas.gov/wp-content/uploads/MOORE_JULIE_H303140_20241203.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}