{"id":"alj-H303337-2024-07-02","awcc_number":"H303337","decision_date":"2024-07-02","opinion_type":"alj","claimant_name":"Victor Melancon","employer_name":null,"title":"MELANCON VS. AMERICAN CONTRACTING SERVICES, INC.AWCC# H303337July 2, 2024","outcome":"granted","outcome_keywords":["granted:2"],"injury_keywords":["carpal tunnel","shoulder","wrist","fracture","neck","back","repetitive"],"pdf_url":"https://www.labor.arkansas.gov/wp-content/uploads/MELANCON_VICTOR_H303337_20240702.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"MELANCON_VICTOR_H303337_20240702.pdf","text_length":39583,"full_text":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. H303337 \n \nVICTOR MELANCON, Employee CLAIMANT \n \nAMERICAN CONTRACTING SERVICES, INC., Employer RESPONDENT \n \nTRAVELERS INDEMNITY CO., Carrier RESPONDENT \n \n \n \n OPINION FILED JULY 2, 2024 \n \nHearing  before  ADMINISTRATIVE  LAW  JUDGE  ERIC  PAUL  WELLS  in  Fort  Smith, \nSebastian County, Arkansas. \n \nClaimant represented by JARID M. KINDER, Attorney at Law, Fayetteville, Arkansas. \n \nRespondents represented by GUY ALTON WADE, Attorney at Law, Little Rock, Arkansas. \n \n STATEMENT OF THE CASE \n \n On April  4,  2024,  the  above  captioned  claim  came  on  for  a  hearing  at  Fort  Smith, \nArkansas.   A pre-hearing conference was conducted on November 27, 2023, and a Pre-hearing \nOrder  was  filed  on December  5,  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 April 29, \n2023. \n 3. The respondents have controverted the claim in its entirety. \n\nMelancon – H330337 \n \n-2- \n 4.  The  claimant  was  earning  sufficient  wages  to  entitle  him  to  compensation  at  the \nweekly rates of $835.00 for temporary total disability benefits and $626.00 for permanent partial \ndisability benefits. \n By agreement of the parties the issues to litigate are limited to the following: \n 1.  Whether  Claimant  sustained  a  compensable  bilateral  carpal  tunnel  injury  on  or  about \nApril 29, 2023. \n 2. Whether Claimant is entitled to medical treatment for his compensable bilateral carpal \ntunnel injury. \n 3. Whether Claimant is entitled to temporary total disability benefits from May 3, 2023, \nto a date yet to be determined. \n 4. Whether Claimant’s attorney is entitled to an attorney fee. \n The claimant's contentions are as follows: \n“1.  The  Claimant,  Victor  Melancon,  sustained  a  compensable \nbilateral carpal tunnel injury on April 29, 2023, while working for \nAmerican Contracting Services in Fort Smith, Arkansas. \n \n2.  Despite  objective  evidence  of  injury,  the  Respondents  denied \ncompensability of the Claimant’s injury. \n \n3. The Claimant contends that he is owed medical benefits as well \nas Temporary Total Disability benefits from May 3, 2023, through \na date yet to be determined. \n \n4.  Due  to  the  controversion  of  entitled  benefits,  the  Respondents \nare obligated to pay one half of the Claimant’s attorney’s fees. \n \n5. Claimant reserves the right to raise additional contentions at the \nhearing of this matter.” \n \n The respondents’ contentions are as follows: \n“Respondents  contend  the  claimant  did  not  sustain  a  compensable \ninjury    within    the    course    and    scope    of    his    employment. \n\nMelancon – H330337 \n \n-3- \nRespondents are not responsible for the payment of any medical or \nindemnity benefits.” \n \n The  claimant  in  this  matter  is  a 39-year-old  male who  alleges  to  have  sustained \ncompensable bilateral carpal tunnel injuries on or about April 29, 2023. The claimant worked as \na general laborer for the respondent performing various manual labor tasks including operating a \njackhammer. The respondent is in the business of repairing  and restoring  bridges. The  claimant \nhad  worked  for  the  respondent  on  two  previous  occasions,  and  during  those  periods  of \nemployment  also  engaged  in  manual  labor-type  work  including  jackhammering.  During  the \nclaimant’s  third  and  most  recent  employment  with  the  respondent  he  alleges  compensable \nbilateral  carpal  tunnel  injuries.  That  period  of  work  for  the  respondent  was  a  total  of  14  days. \nThe  claimant  began  work  on  April  17,  2023,  which  was  a  Monday.  For  the  first  week  of  his \nemployment with the respondent, the claimant was unable to work on the bridge itself because of \na problem with his Union dues. Instead of working on the bridge, the claimant was tasked with \nother work including picking up trash for that first week, ending Saturday, April 22, 2023. \n The next week, on Monday, April 24, 2023, the claimant began operating a jackhammer \non the bridge and doing “hydro” which is done by connecting and disconnecting hoses on the \nbridge.  It  was  the  claimant’s  testimony  that  he  was  jackhammering  for  13  hours  straight. \nFollowing is a portion his cross-examination testimony about jackhammering: \nQ Now,  you  complained  that  you  were  jackhammering  13 \nhours  straight  on  two  different  occasions.  So  you  would  get  to \nwork, clock in, get a jackhammer, and you would do that until you \nclocked out? \n \nA Yes, sir. \n \nQ According to your testimony; is that right? \n \nA Yes, sir. \n\nMelancon – H330337 \n \n-4- \n \nQ No breaks. Ate your lunch while you were jackhammering? \n \nA You have to eat whenever you get a chance. \n \nQ Never  got a chance  to  stop,  for  those  two  days  at  least,  is \nthat what the record shows? \n \nA While  I  am  eating  my  sandwich,  I  have  a  jackhammer  in \nmy lap. I don’t want to get sent home. \n \nQ What  you  are  testifying  to  is  that  you  got  no  breaks;  you \ndidn’t get to change positions; you didn’t rotate with anybody? \n \nA Not during those days, I did not. \n \n On  direct  examination  the  claimant  gave  testimony  about  when  his  problems  began, \nreporting them to the supervisor, and seeking medical treatment as follows: \nQ When did you first start noticing problems? \n \nA Maybe the 10\nth\n or 11\nth\n day of me jackhammering. \n \nQ If  we  have  down  April  29\nth\n of  2023  as  your  first  report  of \ninjury, does that sound correct? \n \nA Yes, sir. \n \nQ What were you noticing? \n \nA A  numbing  sensation,  lots  of  tingling.  The  only  way  to \nrelieve it was to raise my hands and shake them (indicating). I was \nbasically  waking  up  in  the  middle  of  the  night  with  pains  like \nshooting from my hands all the way up to my shoulders. \n \nQ Okay. Where was that numbness and tingling located? \n \nA From   the   tip   of   my   fingers   through   my   wrists   and \nsometimes mostly in my shoulder. \n \nQ And your testimony today is you first started noticing those \nsymptoms on April 29\nth\n of 2023; is that correct? \n \nA Yes, sir. \n\nMelancon – H330337 \n \n-5- \n \nQ Now, did you report this to anybody? \n \nA Yes, sir. I told Marcel. He is sitting right there. \n \nQ And  you  say  he  is  sitting  right  there.  Marcel  was  your \nsupervisor while working at this company? \n \nA Yes.   He   was   the   second   in   command   to   the   bridge \nsupervisor named Brian. \n \nQ Okay.  And  when  did  you  report  to  him  that  you  were \nhaving these issues? \n \nA The  29\nth\n when  I  got  off.  When  I  went  home,  I  texted  him \nand told him I was having a hard time opening my right hand. It’s \nclosed shut. I couldn’t open it. And it was hard just texting him. \nAnd I told him it was hard just texting him with my left hand. \n \nQ Okay.  Did  you  ever  have  any  problems  with  your  hands, \nwrists with numbness and tingling in the past? \n \nA Never in my life. \n \nQ How did you report the injury to Marcel? \n \nA By via text. \n \nQ And  what  was  the  response  from  the  company  after  you \nreported the injury? \n \nA I didn’t get a response. \n \nQ Did  your  supervisor  take  any  action  after  this,  after  you \nreported  that  you  were  having  numbness  and  tingling  in  your \nhands? \n \nA No, sir. I had to take action myself. \n \nQ Okay. And how long did you continue to jackhammer after \nthis? \n \nA A few more days until I couldn’t take it anymore. \n \nQ When did you first seek medical attention? \n\nMelancon – H330337 \n \n-6- \n \nA I took off May 2\nnd\n. \n \nQ And  I  will  note  in  the  medical  records  it  looks  like  you \ncalled your doctor on May 2\nnd\n? \n \nA Yes, sir. \n \nQ Okay. Why did you call your doctor on May 2\nnd\n? \n \nA I  wanted  to  seek  some  anti-inflammatory  meds  for  my \nhands to get the swelling to go down. \n \n On  May  2,  2023,  a  medical  record  from  Mercy  Clinic  Primary  Care indicates  the \nclaimant and his wife both called and left messages for the claimant’s primary care physician. \nThose messages follow: \nMessage:  \nPatient works in construction and is needing  an  anti inflammatory \nand pain medication to be called in due to his arms are in pain and \nswollen. Please advise. Thank you. \n*** \nMessage: \nVictor  called  to  give  a  bit  more  info.  He  said  that  his  job  is \nbuilding bridges, and he is running the jackhammer for at least the \nnext week. He is having pain and swelling in the arms due to this, \nand he does not want to lose his job over the health issue. \n \nHe chose to reach out to us rather than go to a walk-in, is since Dr. \nSyed knows his medical history and his med list, she would have a \nbetter idea of what would be safe to take. \n \nThe claimant was seen at Mercy Clinic Primary Care on May 10, 2023, and underwent x-\nrays of his wrists bilaterally: \nReason  For  Exam:  See  Diagnosis.  Numbness  and  tingling  of  both \nupper    extremities;    Numbness    and    tingling    of    both    upper \nextremities; Pain in both upper arms; pain in both upper arms. \n*** \nRight   wrist:   No   acute   fracture   or   dislocation.   No   significant \ndegenerative changes. No osseous erosions. \n \n\nMelancon – H330337 \n \n-7- \nLeft   wrist:   No   acute   fracture   or   dislocation.   No   significant \ndegenerative changes. No osseous erosions. \n \nImpression: \nIMPRESSION: \n1. No radiographic abnormality identified. \n \nDuring  that  visit  the  claimant  was  seen  by  Dr.  Beena  Syed,  his  primary  care  physician. \nFollowing is a portion of that medical report: \nChief Complaint \nFollow  Up  (He  also  wants  to  talk  about  his  hands.  He  hurt  them \nwhile  at  work.  He  was  jack  hammering  on  the  540  bridge  for  too \nlong. Now they are numb and in pain and now the pain is radiating \nto his neck. Can’t feel his finger tips.) \n \nVisit Diagnosis \nNumbness and tingling in both upper extremities (primary) \nPain in upper arms \nWhite coat syndrome with diagnosis of hypertension \n*** \nPROGRESS NOTE: \nPatient  has  hypertension.  He  is  only  taking  lisinopril.  He  stopped \ntaking  his  hydrochlorothiazide  because  it  did  not  make  him  feel \nright. He did not notify office about that. Lately his blood pressure \nis  staying  elevated.  He  states  that  at  home  his  systolic  blood \npressure is in 140s. \nHis  initial  blood  pressure  in  the  office  was  190/110  left  arm  and \n182/110 right arm. Reports no headaches, changes in vision, chest \npain,  shortness  of  breath,  confusion,  slurred  speech.  At  the  end  of \nthe visit it was down to 170/90. \n \nHe has been under stress because of recent hand pain secondary to \njackhammering  at  work.  He  states  that  he  did  it  for  13  hours \nstraight on 2 different occasions. \nOn  April  29  he  did  it  for  13  hours  and  the  problems  started  then. \nHad  pain  tingling  or  numbness  of  both  times  and  he  notified  his \nsupervisor  about  his  hands.  Sunday he  was  off  and  Monday  they \nput  him  on  the  same  job  for  13  hours.  Tuesday  he  took  off. \nWednesday   when   we   went   back   they   put   him   again   for \njackhammering  for  6  hours.  It  gradually  got  worsen  and  now \nradiates  up  to  his  neck,  but  the  worst  is  in  his  hands.  He  has  quit \nthis  job  due  to  persistent  placement  on  jackhammering/task  and \nresulting pain, tingling numbness of his hands. \n\nMelancon – H330337 \n \n-8- \n \nHe has not notified Workmen’s Compensation. He was working \nwith American contracting services, Jefferson Indiana. \nHe reports that this was the third time he was working with them. \nHe never had problems before, but the supervisor was different this \ntime. \nHe  took  Aleve  2  tablets  3  times  a  day  but  he  stopped  it  as  it  was \nhelping him short-term only. Now he is taking 3 aspirins, does not \nknow  the  strength,  but  he  gets  it  from  Dollar  store  and  he  takes  it \ntwice a day and it helps him somewhat. \n \nHe wants to work. He will be joining chicken plant now and he is \nconcerned that his symptoms might be worsened. \n \n On  May  18,  2023,  the  claimant  underwent  a  nerve  conduction  study  at  Mercy  Clinic \nNeurology  on  his  bilateral  upper  extremities,  which  was  performed  by  Dr.  Janice  Keating. \nFollowing is the Impressions section of that diagnostic report: \nIMPRESSION: \n1. Moderately  severe  bilateral  carpal  tunnel  syndrome,  worse  on \nthe right compared to the left. \n2. Ulnar nerve normal bilaterally. \n \n On May 30, 2023, the claimant was again seen by Dr. Syed. Following is a portion of that \nmedical report: \nPROGRESS NOTE: \nHe has been under stress because of recent hand pain secondary to \njackhammering  at  work.  He  states  that  he  did  it  for  13  hours \nstraight on 2 different occasions. \nOn  April  29  he  did  it  for  13  hours  and  the  problems  started  then. \nHad  pain  tingling  or  numbness  of  both  times  and  he  notified  his \nsupervisor  about  his  hands.  Sunday he  was  off  and  Monday  they \nput  him  on  the  same  job  for  13  hours.  Tuesday  he  took  off. \nWednesday   when   we   went   back   they   put   him   again   for \njackhammering  for  6  hours.  It  gradually  got  worsen  and  now \nradiates  up  to  his  neck,  but  the  worst  is  in  his  hands.  He  has  quit \nthis  job  due  to  persistent  placement  on  jackhammering/task  and \nresulting pain, tingling numbness of his hands. \n \nHe  took  Aleve  2  tablets  3  times  a  day  but  he  stopped  it  as  it  was \nhelping him short-term only. Now he is taking 3 aspirins, does not \n\nMelancon – H330337 \n \n-9- \nknow  the  strength,  but  he  gets  it  from  Dollar  store  and  he  takes  it \ntwice a day and it helps him somewhat. \nLast visit he reported that he will try to work in a chicken plant but \nhe could not work for more than 1 day because working there also \nresulted in his symptoms recurrence. \nHe  has  had  nerve  conduction  test  done  and  has  carpal  tunnel \nsyndrome. He was the breadwinner of the family and now his wife \nhas to go back to work because he cannot work and he has to stay \nhome   and   take   care   of   look   after   her   8-year-old   daughter. \nPreviously his mother-in-law was helping with her but now she has \nterminal cancer. \nHe states that even at home doing dishes and other chores results in \npain tingling and numbness of both hands. He has not been able to \nget  wrist  brace  because  he  did  not  have  money.  He  states  that  his \nwife will be paid today so he will start using it. He has been doing \nexercises. \n*** \nPLAN: In addition to above: \nBilateral carpal tunnel syndrome: Discussed with him for going for \nsurgery but he states that he cannot because at this point he has no \none  to  take  care  of  his  daughter  in  the  summer  break.  And  he  has \nto do the household stuff because his wife is working. He will get \nthe  brace  and  start  using.  He  is  doing  exercises.  I  will  also  have \nhim  see  neurology.  We  will  add  Cymbalta  and  it  might  help  him \nwith his symptoms and also with his anxiety. \n \nWhite  coat  syndrome:  Blood  pressure  is  better  today.  Will  add \nhydrochlorothiazide. Continue losartan. \n \n On June 13, 2023, the claimant was again seen by Dr. Syed. Following is a Progress Note \nfrom that visit: \nPROGRESS NOTE: \nPatient  has  come  for  his  follow-up.  He  states  that  he  is  taking \nhydrochlorothiazide  and  losartan  regularly.  He  reports  that  he  is \nchecking   his   blood   pressure   at   home   and   it   has   improved. \nYesterday  it  was  137/80.  He  states  that  starting  Cymbalta  has \nhelped  him  mostly  with  his  anxiety  but  the  current  dose  seems  to \nbe high for him. \nRegarding  carpal  tunnel  he  still  has  significant  problem,  he  has \nordered the brace and he will receive it soon and start using it. \nAlso  has  slight  elevation  in  white  cell  count.  No  fever,  night \nsweats, swollen glands, unintentional weight loss, chronic cough or \ndiarrhea. \n\nMelancon – H330337 \n \n-10- \n \n On June 15, 2023, Dr. Syed referred the claimant to Fort Smith Mercy Orthopedics with a \ndiagnosis  of  bilateral  carpal  tunnel  syndrome.  On  July  25,  2023,  the  claimant  was  seen  by  Dr. \nTrent Johnson at Mercy Orthopedics. Following is a portion Dr. Johnson’s clinic note: \nCHIEF  COMPLAINT:  Numbness  and  tingling  in  the  bilateral \nhands. \n \nHISTORY  OF  PRESENT  ILLNESS:  Mr.  Melancon  is  here  for \nevaluation  of  his  bilateral  hands.  He  is  a  38-year-old  gentleman. \nThe  patient  works  in  construction.  The  patient  has  numbness  and \ntingling in the bilateral hands. Been doing a lot of jack-hammering. \nSince  that  time,  he  has  significantly  worsening  pain,  with  pain  at \nthe  wrists,  as  well  as  numbness  and  tingling  in  the  fingertips.  He \nstates that he has numbness and tingling throughout the day, and in \nthe  evenings.  He  states  that  it  is  mainly  the  thumb,  index,  and \nmiddle  fingers.  He  has  tried  bracing  and  oral  anti-inflammatories \nwith continued symptoms. The patient is right-hand dominant. The \npatient  states  that  the  right  hand  affects  him  somewhat  more,  but \nboth  hands  are  moderately  symptomatic.  He  denies  any  particular \nneck pain, radicular or neurological symptoms. Denies any fever or \nchills. \n*** \nIMPRESSION/DIAGNOSIS:    A    38-year-old    gentleman    with \nbilateral  hands  he  has  carpal  tunnel  syndrome,  this  is  moderately \nsevere.   Treatment   options   are   discussed.   He   has   attempted \nnonoperative management with night-splinting, activity \nrestrictions,  and  oral  anti-inflammatories  with  continued  pain. \nSurgical  intervention  with  risks  and  benefits  of  carpal  tunnel \nrelease were discussed. The patient will go home and consider this \ntreatment option. \n \n The  respondent  in  this  matter  called  Marcel  Pryor,  Jr.  as  a  witness.  Mr.  Pryor  is  a \nsupervisor  for  the  respondent  and  directly  supervised  the  claimant  during  his  employment  with \nthe  respondent  at  which  time  he  alleges  to  have  sustained  compensable  bilateral  carpal  tunnel \nsyndrome.  Mr.  Pryor  gave  direct  examination  testimony  about  the  amount  of  jackhammering \ndone in a workday as follows: \nQ Okay. Tell me how that works out. \n\nMelancon – H330337 \n \n-11- \n \nA So like, okay, I think this is where he gets confused at. He \nhad been on the clock for 12 or 13 hours. \n \nQ Right. \n \nA I think there was some confusion that is coming in because, \nI mean, you’ve probably been on the clock 12, 13 hours, but you \nare  not  working  the  whole – you  are  not  jackhammering  no  13 \nhours. \n \n And you’ve got to sit down to eat holding the hammer, that \nis not the case. You get breaks. It’s up to you when you take your \nbreaks;  you  know  what  I  am  saying?  You  might  hammer  for  two \nhours,  sit  down  for  30.  You  might  hammer  another  two  hours,  sit \ndown for 30. It’s not no when you get there you straight hooking \nup a hammer and hammering for no 13 hours. \n \nQ Now,  do  you  have  enough  hammers  for  everybody  who  is \non the crew to have their own hammer? \n \nA Well,  we  got  multiple  compressors,  but  that  hammer  only \nallowed – that  compressor  only  allows  you  to  hook  up  five \nhammers, maybe. And we have people that is designated to switch \nout  so  everybody – so  you  might  have  five  hammers  going,  but \nyou’ve got six or seven people that is actually there, so you can \nswitch out and rotate with them. \n \nQ Okay. \n \nA Everybody  is  not  hammering.  If  everybody  hammered  13 \nhours, we wouldn’t have nobody. \n \nQ You wouldn’t have enough hammers? \n \nA No. I don’t think they will stay if they’ve got to hammer 13 \nhours straight every day. \n \nQ All  right.  So  you  have  enough  people  to  be  able  to  rotate \npeople in? \n \nA Yes, sir. \n \nQ People can take breaks? \n \n\nMelancon – H330337 \n \n-12- \nA That’s what we do. \n \nQ So  you  are  not  standing  there  hammering  for  13  hours \nstraight each day? \n \nA No, sir. \n \n On cross examination, Mr. Pryor was also asked about the time spent jackhammering by \nthe claimant as follows: \nQ Now, you are not here denying that Mr. Melancon didn’t \njackhammer on the job; is that correct? \n \nA No, sir. \n \nQ And you are not denying that he didn’t jackhammer for at \nleast from your testimony for at least two hours at any given time; \nis that correct? \n \nA Yes. \n \nQ Okay.  And  your testimony was that it’s very common for \nlaborers at American Contracting to jackhammer for two hours at a \ntime and take 30-minute breaks; correct? \n \nA I don’t know if it would be a full two hours. You got some \nguys that’s been doing it for years and they might hold it longer \nthan  two  hours,  but  you  got  some  that  might  just  hold  it  for  an \nhour. We don’t set a time that you have to hold it or nothing like \nthat. When you want to stop, you stop and take a break. \n \nQ So   it   is   up   to   the   individual   persons   on   the   job   to \njackhammer  as  long  as  they  want  to  jackhammer  for,  is  that \ncorrect, and that would include hours at a time? \n \nA No.  We  are  not  going  to  let  you  jackhammer  13  hours \nstraight. \n \nQ Okay. That wasn’t my question. My question was it is up to \nthe  individual  to  jackhammer  as  long  as  they  want  and  that  can \namount to hours at a time? \n \nA Yes, sir. \n \n\nMelancon – H330337 \n \n-13- \nQ Okay.  What  percentage  of  the  day  would  you  say  an \nindividual who was assigned a jackhammer would jackhammer? \n \nA Out   of   a   12-hour,   13-hour   shift,   I   would   say   he   is \njackhammering  between  eight  and  nine  hours.  And  I  say  that \nbecause you have got to think, if you take away that 30 minutes or \n40  minutes  every  time  you  are  stopping,  then  that  adds  up.  If  you \nstop  four  times,  that  is  two  hours  already  gone.  And  in  a  13-hour \nshift, you are going to stop more than four times. \n \nQ So your testimony as we sit here today is that at American \nContracting, it is possible for an individual who is jackhammering \nto jackhammer for nine hours out of their day; is that correct? \n \nA Yeah. \n \n On direct examination, Mr. Pryor was asked about the claimant reporting an injury to him \nas follows: \nQ Now,  did  he  ever  report  to  you  that  he  was  injured  on  the \njob? \n \nA One  particular  day.  So  his  vehicle,  sometimes  he  would \nleave  it  at  the  yard.  Sometimes  he  would  leave  it  at  the  yard  and \nthen  I  will  go  get  him.  So  I  took  him  back  to  the yard  on  this \nparticular day and we was just having a normal guys’ conversation \nand he said he might be a little late in the morning because he had \nto go see his doctor about his blood pressure. And he said, “I am \ngoing to see if she can give me anything.” He said, “I haven’t \nworked  with  you  guys  in  a  long  time.  I  got  to  get  back  used  to \nhammering.” \n \nQ Okay. Did he tell you he had injured himself or was hurt on \nthe job? \n \nA No,  sir.  He  never  said  he  was  injured  or  hurt.  The  only \nthink he said was he got to see his doctor to get his blood pressure \nmedicine and he said that his hands was hurting. He got to get back \nused to hammering. \n \nQ So he didn’t act like that was any particular issue with him, \nat least was your impression; is that correct? \n \nA No, sir. \n\nMelancon – H330337 \n \n-14- \n \nQ Now, had he come to you and said, “I’ve hurt myself on the \njob,” what would you do? \n \nA The  first  thing  I  would  do  is  call  April  Hicks  and  let  her \nknow and she would direct me  what the next step would be, but  I \nalready know that. Take him to the hospital. \n \nQ Okay. Now, is she the HR lady? \n \nA She is the safety lady. \n \n On cross examination, Mr. Pryor was asked about the claimant’s reporting of an injury to \nhim as follows: \nQ Now, your testimony earlier was that Mr. Melancon did not \nreport the injury to you; is that correct? \n \nA Yes, sir. \n \nQ But your testimony was Mr. Melancon said he was hurting \nin his hands from the jackhammer; is that correct? \n \nA He  said  his  hands  were  hurting  because  he  hadn’t \njackhammered in a long time. We was on our way to the yard and \nwe were just having a guys’ conversation and laughing and talking \nand  he  was  telling  me  about  that  he  was  going  to  be  late  the  next \nmorning. And he said, “When I go see my doctor, I am going to \nsee  if  she  can  give  me  something  because  my  hands  are  hurting \nme.” \n \nQ Okay.  And  then  on  5/3,  it  was  your  testimony  that  he  told \nyou  that  his  doctor  said  he  could  not  jackhammer  anymore; \ncorrect? \n \nA He never tell me that. \n \nQ Okay. \n \nA He text me, like I told the Judge, after all of this happening, \nhe didn’t show up the next day or whatever the case may be. So \nwhen I start receiving the text message, he put in the text message \nthat he was getting a lawyer and we were going to have to pay him \nand  he  said  his  hands  is  messed  up  from  hammering.  And  I  said, \n\nMelancon – H330337 \n \n-15- \n“Where is the doctor’s note at ? Did you give me a doctor’s note? \nDid you tell me you went to the doctor?” \n \n He didn’t have – I mean he’s got the text messages because \nwe got them. \n \n This  administrative  law  judge  questioned  Mr.  Pryor  in  order  to  get  clarification  about \nwhen and how he and the claimant had communicated about the claimant’s hands hurting from \njackhammering as follows: \nTHE COURT: I am trying to clarify a note that I took. Sir, \njust  shortly  ago,  you  said  he  did  say  his  hands  were  hurting  from \nhammering. And I know we talked about text messages and all, but \ndid he say that in person or was that a text message? \n \n THE WITNESS: That was a text message. \n \n THE  COURT:  Was  that  recently  or  back  around  the  time \nhe left work? \n \n THE WITNESS: I am not understanding. \n \n THE  COURT:  When  he  told  you  that  his  hands  were \nhurting from hammering – \n \n THE WITNESS: Uh-huh. \n \n THE COURT: -- when did that occur? \n \n THE WITNESS: Me and him, one day me and him was on \n– he  text  one  time  before,  but  that  was  when  after  all  of  this  was \ngoing on and he text me saying his hands was hurting and we was \ngoing to have to pay him. \n \n  But  one  time  before,  me  and  him,  like  I  said,  he \nused  to  drive  his  truck – used  to  drive  his  personal  SUV  to  the \nyard, so I would take him back to the yard to get his vehicle and he \nsaid that he might be a little late in the morning because he had to \ngo to the doctor to get some more medicine for his blood pressure \nand  he  said,  “  I  am  going  to  see  if  my  doctor  can  give  me \nsomething for my hands because my hands is hurting.” He said, “ I \ngot to get back used to jackhammering. I haven’t jackhammered \nwith you guys in a long time.” \n\nMelancon – H330337 \n \n-16- \n \n THE  COURT:  Okay.  So  that  was  an  exchange  while  he \nwas working, still working with the company? \n \n THE WITNESS: Yes, sir. \n \n THE  COURT:  And  then  there  was  an  exchange  later  on \nthrough a text message? \n \n THE WITNESS: Yes, sir. \n \n THE  COURT:  Do  you  remember,  roughly,  how  long  after \nhe quit working that text message was? \n \n THE WITNESS: The next day or even the day after. \n \n THE COURT: Soon after he stopped working? \n \n THE WITNESS: Yeah, but it wasn’t a text message saying \nmy  hand  is  injured.  It  went  straight  to  the  Threads,  whether  I \nGoogled  him  or  whether  he  had  Googled  me.  And  then  he  started \nsaying  we  are  going  to  have  to  pay  him.  We  are  going  to  have  to \npay him. \n \n  And I told him he wasn’t going to do nothing to me \nand I replied how a man is going to reply. That is what I did. But I \nnever text him first or nothing like that. He text me. \n \n THE COURT: Okay. \n \n THE  WITNESS:  He  text  implying  all  of  this  that  we  was \ngoing  to  have  to  pay  him.  He  implied  that  he  is  going  to  get  a \nlawyer and all this kind of stuff like that. \n \n THE COURT: Okay. Thank you. \n \n Mr. Pryor testified on direct examination about asking the claimant to move his truck on \nthe claimant’s last day of employment, which would have been Wednesday, May 3, 2023, as \nfollows: \nQ And  this  would  have  been  the  last  day  that  he  worked;  is \nthat right? \n \n\nMelancon – H330337 \n \n-17- \nA Yes. I told him, I said, “You’ve got trucks coming in and \nout.  Go  move  your  vehicle.”  And  then  I  said,  “When  you  are \nfinished with that, you don’t need to be taping up no more drains \nor nothing. You are supposed to be hammering.” \n \n But he said, “Why can’t me and Roy just finish picking up \npaper and trash like we have been doing for the last couple of days. \nI want to continue to do that.” \n \n I said, “That’s not your job at the time. You are supposed to \nhammer.” So he moved his vehicle and I’ve never seen him again. \n \n So  the  next  day  I  am  calling  him  and  looking  for  him.  He \nnever showed up. So I asked one of the guys where he was at and \nthey showed me a text where he said he’s tired of his job; that he \nwasn’t going to hammer. He didn’t want to hammer. \n \nQ So  did  he  come  back  after  you  had  told  him  to  move  his \ntruck? \n \nA No, sir. \n \n On cross examination, the claimant was questioned about being asked to move his truck \non the last day of his employment with the respondent as follows: \nQ You don’t remember being asked to move your truck and \nthen just getting in your truck and leaving? \n \nA No, sir. \n \nQ Okay. That didn’t happen or you just don’t remember that? \n \nA We had a conversation about my jackhammering and then I \nwas sent home. \n \nQ So you are claiming that he sent you home. You didn’t just \nleave the job? \n \nA He sent me home. \n \nQ Now,  did  you  ever  come  back  or  contact  them  about \nreturning to work at any point after May the 3\nrd\n? \n \nA No, sir. \n\nMelancon – H330337 \n \n-18- \n \n The  claimant  in  this  matter  has  asked  the  Commission  to  determine  whether  or  not  he \nsustained compensable bilateral carpal tunnel syndrome on or about April 29, 2023.  \n In order to prove a compensable carpal tunnel syndrome injury, claimant must satisfy all \nof the following requirements: (1) proof by a preponderance of the evidence of an injury arising \nout of and in the course of his employment; (2) proof by a preponderance of the evidence that the \ninjury caused external or internal physical harm to the body; (3) medical evidence supported by \nobjective findings as defined in A.C.A. §11-9-102(16); and  (4) proof by a preponderance of the \nevidence  that the  injury  was  the  major  cause  of  disability  or  need  for  treatment.  Claimant  does \nnot  have  the  burden  of  proving  by  a  preponderance  of  the  evidence  that  his  job  duties  required \nrapid  repetitive  motion.. Kildow  v.  Baldwin  Piano  &  Organ, 333  Ark.  335,  969  S.W.  2d  190 \n(1998). \nThe  credibility  of  witnesses  and  the  weight  to  be  given  to  their  testimony  are  matters \nsolely within the province of the Commission.  Ringier America v. Combs, 41 Ark. App. 47, 849 \nS.W.2d 1 (1993). \n It  is  clear  that  the  claimant  in  this  matter  overexaggerated  the  amount  of  time  he  spent \noperating  a  jackhammer.  However,  it  is  also  clear  that  he  did  spend  a  great  deal  of  time \njackhammering  on  the  days  that  he  did  so.  I  am  uncertain  if  that  time-period  was  three  or  four \ndays or as many as eight or nine. Either amount is a reasonable time-period to develop bilateral \ncarpal tunnel syndrome given the nature of operating a jackhammer. \n The claimant testified that he informed his supervisor, Mr. Pryor, that he injured himself \njackhammering. Mr. Pryor denies this but does admit the claimant made the following statements \nto  him,  speaking  of  being  late  because  he  was  going  to  the  doctor.  Mr.  Pryor  testified  that  the \n\nMelancon – H330337 \n \n-19- \nclaimant stated “I am going to see if she can give me anything”... “I haven’t worked with you \nguys in a long time. I got to get back used to handling.”; “I am going to see if my doctor can give \nme  something  for  my  hands  because  my  hands  is  hurting.”  ...  “I  got  to  get  back  used  to \njackhammering. I haven’t jackhammered with you guys in a long time.”; “When I go see my \ndoctor I am going to see if she can give me something because my hands are hurting me.” Mr. \nPryor also testified that the claimant, via text message, informed him about his hands hurting and \nthat he was going to get a lawyer and “we was going to have to pay him.” Mr. Pryor was the \nclaimant’s supervisor and while he does not believe the claimant reported an injury to him, his \nown testimony about the claimant’s statements proves otherwise.  \n The claimant on May 2, 2023, missed work but contacted his primary care physician’s \noffice  and  described  his  bilateral  upper  extremity  difficulties  and  related  those  difficulties  to \njackhammering.  The  claimant’s  May  18,  2023,  nerve  conduction  study  shows  “moderately \nsevere bilateral carpal tunnel syndrome, worse on the right compared to the left.” Dr. Johnson at \nMercy Orthopedics recommended surgical intervention as a treatment plan for the claimant’s \nbilateral  carpal  tunnel  syndrome.  The  claimant  is  able  to  prove  by  a  preponderance  of  the \nevidence that he sustained compensable injuries in the form of bilateral carpal tunnel syndrome \non or about April 29, 2023. \n The  claimant  has  asked  the  Commission  to  determine  whether  he  is  entitled  to  medical \ntreatment for his compensable bilateral carpal tunnel syndrome. \nEmployers  must  promptly  provide  medical  services  which  are  reasonably  necessary  in \nconnection  with  the  compensable  injuries,  Ark.  Code  Ann.  §11-9-508(a).    However,  injured \nemployees have the burden of proving by a preponderance of the evidence that medical treatment \nis  reasonably  necessary.   Patchell  v.  Wal-Mart  Stores,  Inc.,  86  Ark.  App.  230,  184  S.W.3d  31 \n\nMelancon – H330337 \n \n-20- \n(2004).    What  constitutes  reasonable  and  necessary  medical  treatment  is  a  fact  question  for  the \nCommission,  and  the  resolution  of  this  issue  depends  upon  the  sufficiency  of  the  evidence.  \nGansky v. Hi-Tech Engineering, 325 Ark. 163, 924 S.W.2d 790 (1996). \n After a review of all the medical records submitted into evidence in this matter, it appears \nthat the treatment the claimant has received thus far is reasonable and necessary treatment for his \ncompensable bilateral carpal tunnel syndrome, including the surgical intervention recommended \nby Dr. Johnson and its after care. \n The claimant has asked the Commission to determine if he is entitled to temporary total \ndisability benefits from May 3, 2023, to a date yet to be determined.  \nA  claimant  who  suffers  a  scheduled  injury  is  entitled  to  receive  temporary  total  or \ntemporary  partial  disability  benefits  during  their  healing  period  or  until  they  return  to  work, \nregardless  of  whether  there  is  a  total  incapacity  to  earn  wages. Wheeler  Construction  Co.  v. \nArmstrong,  73 Ark. App. 146, 41 S.W. 3d 822 (2001). \n In  the  present  matter,  the  claimant  has  sustained  scheduled  injuries  in  the  form  of \nbilateral carpal tunnel syndrome. The claimant was at the time of hearing in this matter still in his \nhealing  period.  The  claimant  had  during  the  time  period  after  his  compensable  April  29,  2023, \ninjury  worked  for  a  different  employer  but  was  not  employed  at  the  time  of  the  hearing  in  this \nmatter.   The   claimant   is   entitled   to   temporary   total   disability   benefits   for   his   scheduled \ncompensable injuries from May 4, 2023, until a date yet to be determined, less any period of time \nin which the claimant was employed by another employer. \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 \n\nMelancon – H330337 \n \n-21- \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 \nNovember  27,  2023,  and  contained  in  a  Pre-hearing  Order  filed December  5,  2023,  are  hereby \naccepted as fact. \n 2. The  claimant  has  proven  by  a  preponderance  of  the  evidence  that  he  sustained \ncompensable bilateral carpal tunnel injuries on or about April 29, 2023. \n 3.  The  claimant  has  proven  by  a  preponderance  of  the  evidence  that  he  is  entitled  to \nmedical   treatment   for   his   compensable bilateral carpal   tunnel   injuries.   This   includes \nreimbursement  for  any  out-of-pocket  expenses  related  to  the  medical  treatment  admitted  as \nevidence in this matter regarding the claimant’s bilateral carpal tunnel syndrome. \n 4.  The  claimant  has  proven  by  a  preponderance  of  the  evidence  that  he  is entitled  to \ntemporary  total  disability  benefits  from  May  4,  2023,  to  a  date  yet  to  be  determined,  less  any \nperiod of time in which the claimant has been employed by another employer. \n 5.  The  claimant  has  proven  by  a  preponderance  of  the  evidence  that  his  attorney  is \nentitled to an attorney fee in this matter. \n ORDER \nThe  respondent  shall  pay  for  the  reasonable  and  necessary  medical  treatment  associated \nwith  the  claimant’s  compensable  bilateral  carpal  tunnel  syndrome,  including  the  surgical \nrecommendation of Dr. Johnson. The respondent shall also be responsible for any out-of-pocket \nmedical expenses related to the medical treatment admitted as evidence in this matter regarding \nthe claimant’s bilateral carpal tunnel syndrome. The respondent shall pay the claimant temporary \n\nMelancon – H330337 \n \n-22- \ntotal disability benefits from May 4, 2023, to a date yet to be determined, less any time-period in \nwhich the claimant was employed by another employer. \n The respondent shall pay to the claimant’s attorney the maximum statutory attorney’s \nfee  on  the  benefits  awarded  herein,  with  one-half  of said  attorney’s  fee  to  be  paid  by  the \nrespondent in addition to such benefits and one-half of said attorney’s fee to be withheld by the \nrespondent from such benefits pursuant to Ark. Code Ann. § 11-9-715. \n All sums herein accrued are payable in a lump sum and without discount and shall earn \ninterest at the legal rate until paid. \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       HONORABLE ERIC PAUL WELLS \n       ADMINISTRATIVE LAW JUDGE","preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H303337 VICTOR MELANCON, Employee CLAIMANT AMERICAN CONTRACTING SERVICES, INC., Employer RESPONDENT TRAVELERS INDEMNITY CO., Carrier RESPONDENT OPINION FILED JULY 2, 2024 Hearing before ADMINISTRATIVE LAW JUDGE ERIC PAUL WELLS in Fort Smith, Sebastian County,...","fetched_at":"2026-05-19T22:50:46.905Z","links":{"html":"/opinions/alj-H303337-2024-07-02","pdf":"https://www.labor.arkansas.gov/wp-content/uploads/MELANCON_VICTOR_H303337_20240702.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}