{"id":"alj-H303571-2024-10-01","awcc_number":"H303571","decision_date":"2024-10-01","opinion_type":"alj","claimant_name":"Mary Ginther","employer_name":"Emerson Electric Company","title":"GINTHER VS. EMERSON ELECTRIC COMPANY AWCC# H303571 October 01, 2024","outcome":"granted","outcome_keywords":["granted:1"],"injury_keywords":["shoulder","wrist","strain","fracture","repetitive","hip","back"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/GINTHER_MARY_H303571_20241001.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"GINTHER_MARY_H303571_20241001.pdf","text_length":32143,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H303571 \nMARY M. GINTHER, EMPLOYEE     CLAIMANT \nVS. \nEMERSON ELECTRIC COMPANY, EMPLOYER   RESPONDENT \nOLD REPUBLICAN INSURANCE CO./ \nMITCHELL, WILLIAMS, SELIG, GATES AND \nWOODYARD, P.L.L.C., \nINSURANCE CARRIER/TPA      RESPONDENT \n \nOPINION FILED OCTOBER 1, 2024 \nHearing before Administrative Law Judge, James D. Kennedy, on the 26\nTH\n day of June, \n2024, in Batesville, Arkansas. \n \nClaimant is represented by Scott Hunter, Jr., Attorney at Law, Jonesboro, Arkansas. \nRespondent is represented by Richard N. Dodson, Attorney at Law, Jonesboro, \nArkansas. \n \nSTATEMENT OF THE CASE \n A hearing was conducted on the 26\nth\n day of June 2024, to determine the issues of \ncompensability of a claimed work-related right arm injury, medical in regard to the injury, \ntemporary total disability from February 15, 2023, to a date to be determined plus attorney \nfees.  All other issues were reserved. The respondents contended that the claim was not \ncompensable.  At the time of the hearing the parties stipulated that the claimant earned \nan average weekly wage of $1,058.75, sufficient for a TTD rate of $705.00 per week.   A \ncopy of the Pre-hearing order was marked “Commission Exhibit 1” and made part of the \nrecord without objection.  The Order provided that the parties stipulated that the Arkansas \nWorkers’ Compensation Commission has jurisdiction of the within claim and that an \n\nGINTHER – H303571 \nemployer/employee relationship existed on or about February 15, 2023, the date of the \nclaimed injury in question.        \n The claimant’s and respondent’s contentions are all set  out  in  their  respective \nresponses  to  the  Pre-hearing Questionnaire  and  made  a  part  of  the  record  without \nobjection.  From a review of the record as a whole, to include medical reports and other \nmatters properly before the Commission and having had an opportunity to observe the \ntestimony and demeanor of the witness, the following findings of fact and conclusions of \nlaw are made in accordance with Ark. Code Ann. 11-9-704. \nFINDINGS OF FACT AND CONCLUSSIONS OF LAW \n1. The Arkansas Workers’ Compensation Commission has jurisdiction over this \nclaim. \n \n2.  An employer/employee relationship existed on February 15, 2023, the date of \nthe claimed injury.  At the time, the claimant earned an average weekly wage \nof $1,058.75.00 a week, sufficient for a TTD rate of $705.00 per week. \n \n3. The claimant  has  satisfied the required burden  of  proof  to  show  that she \nsustained a compensable, work-related injury to her right arm on February 15, \n2023. \n \n4. The claimant is found to be entitled to reasonable and necessary medical for \nthe treatment of the work-related right injury to her right arm. \n \n5. The  claimant  has  satisfied  the  required  burden  of  proof  to  show  that she  is \nentitled to TTD for a period of three weeks, one day. \n \n6. That all other issues are reserved.  \n \n7. The  claimant  is  entitled  to  attorney  fees pursuant  to  A.C.A. 11-9-715.    This \naward shall bear interest at the legal rate pursuant to A.C.A. 11-9-809. \n \n8. If  not  already  paid,  the  respondents are ordered  to  pay  for  the  cost  of  the \ntranscript forthwith. \n \n \n\nGINTHER – H303571 \nREVIEW OF TESTIMONY AND EVIDENCE \n The Pre-hearing  Order  along  with  the  Pre-hearing  questionnaires of the parties \nand the claimant’s amended response to the Pre-hearing  questionnaire were  admitted \ninto the record without objection.  The claimant submitted one exhibit that was admitted \ninto the record without objection and the respondents submitted seven exhibits that were \nadmitted into the record without objection.     \n The claimant, Mary M. Ginther, testified that she was born on January 31, 1990, \nwas  34  years old at  the  time  of  the hearing, and  started  working  for  the  respondent  in \nOctober of 2022, where she continues to work as a Paint technician. The job consists of \ntraining the painters, maintaining the Paint Line, and helping where needed, which can \ninclude filling out orders.  In regard to the claimed job injury on February 15, 2023, the \nclaimant testified she was working on the Paint Line where they were performing the 1000 \nJack Stand Challenge, meaning 1000 jack stands were to be welded, painted, packed, \nand  shipped  out during  the month. (Tr. 8, 9) “I was loading and unloading jack stands \nfrom the line, and then I heard a loud popping in my right shoulder, and I had an instant \npain  in  my  right  shoulder  down  my  right  arm,  my  forearm.”  This  occurred during the \nmorning.  Paige Jones, a painter on the Paint Line, was working with me at the time. The \nclaimant stated she let Annie Stigall, the Operations Manager, who happened to walk up \nat  that time, know what  happened,  and was instructed  to  go  fill  out  an  incident  report.  \nShe then went to the Safety Coordinator to fill out the report and asked Paige Jones, who \nwas working on the line with the claimant, to review it and sign it.  The report was then \nreturned to the Safety Coordinator, and the claimant then returned to work. (Tr. 10, 11) In \nregard to her injury, claimant stated she “took it easy the rest of the day.  I wasn’t lifting \n\nGINTHER – H303571 \nany parts anymore.  I believe I wrapped my arm up that same day.  I mean, I was in pain.”  \nShe went on to state that although her job title did not change, her job duties did.  She \ncontinued working for maybe three months, and during that time, her pain progressively \ngot worse.  She later told the Safety Coordinator that she needed medical attention and \nwas sent to the available doctor for a workers’ compensation evaluation.  The doctor was \nDoctor Terry Barns, who coincidentally was her primary care physician.  She contended \nat the time of her testimony that she went to Doctor Barns through workers’ comp.  Dr. \nBarns referred her to Doctor Dylan Carpenter, the doctor who performed surgery on her \nright bicep.  She then received physical therapy for a minimum of three weeks.  She stated \nshe had lost  strength  and  rotation  in  her  arm,  and  if  she  used the  wrist  and  forearm \nrepeatedly, her forearm became sore. (Tr. 12 - 15) She missed three weeks of work due \nto the surgery. (Tr. 16) \n Under  cross  examination,  the  claimant admitted that  every  employee  of  the \nrespondent was required by their job description to be able to lift 50 pounds.  She also \nadmitted that she stated in her deposition that the person working next to her heard her \narm  pop.    She also  admitted  the  manufacturing  area  was  one  very  large  room,  with \ndividers  for  the  welding  booths  and  paint  booths,  with  forklifts  running  up  and  down \nbeeping  and  honking  at  intersections.    Additionally  in  manual  machining, which was \nlocated behind her work area, they were blasting parts with glass beads, similar in method \nto sand blasting, along with running grinders, and there were approximately 130 people \nworking during her shift. (Tr. 17 - 20) Hearing protection was provided for the employees, \nbut not required. (Tr. 21) \n\nGINTHER – H303571 \n The  claimant  was  also  questioned  about  the  incident  report that she  filled  out \nwhere she stated her shoulder popped but didn’t state her elbow popped.  She testified \nthat she had “pain in my forearm and bicep” and she did not go to the doctor that day, \nafter being asked if she needed to. (Tr. 22) She admitted she finished her shift and worked \nevery shift  day  for  the  next  three  months, not making  a request for the  respondent to \nmodify her job. (Tr. 23) She also admitted that she later scratched her hand on a blasting \nbox and reported it to the respondent, but in her deposition when asked if she suffered \nany other injuries or falls in the three months following the accident and May 23\nrd\n, testified \n“Not that I recall.” (Tr. 24, 25) \n The claimant was also questioned about Dr. Burn’s report which provided that her \nchief  complaint  was  right  shoulder  pain.    The  report  provided the  claimant  denied  any \nspecific injury. (Tr. 27, 28) She testified that Dr. Burns referred her to Dr. Carpenter as \nher  personal  primary  physician. She  also  admitted  not  telling Natalie Wilson  with \nHelmsmen that she was seeing her personal doctor, but then added that Natalie Wilson \n“was aware that I was supposed to see Doctor Carpenter and denied my claim, which is \nwhen I believe I went to see him myself.”  She went on to say that the referral to Dr. \nCarpenter  was  from  Dr.  Burns, as her worker’s compensation doctor.  In regard to Dr. \nBurns, she went on to respond, “I don’t understand how I would know the difference if \nhe's  both  my  primary  and  because Emerson couldn’t provide me their workers’ comp \ndoctor.  Who is to say whether at that time he was my acting primary or workers’ comp \ndoctor.” (Tr. 29 - 31) \n She was also questioned about the report from Dr. Carpenter dated June 20, 2023, \nwhich  provided  that  the  referring  physician  was  Dr.  Burns,  and  which  stated  that  her \n\nGINTHER – H303571 \ncurrent problem was of a “sudden” onset. (Tr. 32) She admitted that she told Dr. Burns \nthat there was no specific incident, but after filing her Form C, she told Dr. Carpenter it \nwas sudden.  She admitted stating that the severity of her pain was mild to severe with \nuse for four to six months, and also that six months predated her claim but affirmatively \nstated that four months would not.  She also admitted she was off work for three weeks \nand a day, after the surgery on June 30, returning to work on July 24. (Tr. 33, 34) \n On  redirect,  the  claimant  was questioned about  Dr. Burn’s medical record of \nFebruary 15, 2023, Respondent’s Exhibit 2, a document which provided she had been \ncomplaining   of   right   shoulder   pain   and   further   down   in   the   report, referred   to \nMusculoskeletal and Extremities.  The claimant read “Able to abduct right arm, normal \ninternal rotation, painful at biceps tendon insertion and distal bicep.” (Tr. 39) \n The claimant’s second witness who testified was Paige Jones, a coworker, who \nstarted  working for  the  respondent during November, of  22  and  was  working  there on \nFebruary, of 23.   She currently works as an Assembler, but on February 15, 2023, she \nworked on the Paint Line, working directly with the claimant, hanging jack stands, working \nprobably  two  and  a  half  feet  from  the  claimant.    She  admitted  hearing  a  pop with the \nclaimant’s arm going limp and asking the claimant what happened.  She stated that the \nclaimant “wasn’t sure as to what had happened at that current moment.  She just knew \nthat her arm got hurt.”  She denied socializing or interacting with the claimant outside of \nwork. (Tr. 41, 42) \n Under  cross  examination,  Ms.  Jones  admitted  she  considered  the  claimant  a \ncoworker and friend but denied going to lunch with her during work hours.  She went on \nto testify that the claimant stopped hanging jack stands and went to paperwork and then \n\nGINTHER – H303571 \nreturned and worked for the next three months on light duty. (Tr. 43 - 45).  At this point \nthe claimant rested. \n The  respondents  called  Alicia  Justice,  employed  by  the  respondent  as  the  HR \nBusiness Partner.  She testified she deals with employee benefits, payroll, time keeping, \nworkers’ comp claims, and a change in job status.  She admitted not being employed by \nthe  respondents  on  February  15,  2023,  but  had seen the claimant’s incident report of \nFebruary 15, 2023, and there was no record of the claimant going to the doctor on that \ndate, or record of a request by the claimant stating she was unable to pick up 50 pounds. \n(Tr. 47 – 49) She was also aware that the claimant presented to Dr. Burns and that the \nrespondent paid for the one visit to Dr. Burns but did not pay for any additional medical.  \nIn regard to employee absences, Ms. Justice was aware that the claimant had requested \noff on February 21, which was requested prior to the incident, and that she was later off \non February 27 and March 21, which were both unexcused.  She was also off on April 25, \nwhich had been scheduled by the claimant.  She was also off work July 3, 4, 6, 7, 10, and \nmaybe the 20\nth,\n and was off work due to surgery.  Ms. Justice admitted the respondent’s \nrecords provided the claimant had been off work three weeks and a day after the surgery.  \nSince  September  23,  there  have been no  work  restrictions.  She  also  agreed  the  work \narea  in  the  building  was  estimated  to  be  over  200,000  square  feet  and  that  the  noise \nlevels  in  the  building  sometimes  exceeded OSHA  sound  guidelines.  (Tr.  51 – 55)  She \nwent  on  to  state  the  reason  the  respondents  were  controverting  the  claim  was  due  to \ninconsistencies with the claimant’s different stories. (Tr. 57) \n Under cross examination, Ms. Justice admitted starting work for the respondents \non May 30\nth\n, 2023, a date after the work-related incident of the claimant.  Ms. Justice was \n\nGINTHER – H303571 \nquestioned about the standard protocol after an injury and responded, “The policy says \nthat you’re supposed to report the injury immediately and go to the doctor if needed, so \nthe inconsistencies was kind of - - she didn’t go to the doctor or she didn’t say she needed \nmedical attention til three months later, so what did she do during those three months?” \n(Tr. 59) Ms. Justice was then asked the following question: \n Q.  “Well, I’m assuming that they paid for that because workers’ comp sent \n her there.  I mean, they wouldn’t pay for her to go to her PCP, so I’m \n assuming  they paid that because workers’ comp sent her there, is that \n right?” \n A.  “Yes.”  (Tr. 60) \n Under  redirect, Ms.  Justice  stated  that  it  concerned her  that  the  claimant  stated \nthat her shoulder popped, and later stated that her elbow popped and that she earlier had \nstated in her deposition she had been off work for three months, rather than three weeks.  \n(Tr. 61) \n       The claimant submitted 29 pages of medical records.  The initial medical record of \nJune  20,  2023, provided  that the  claimant  presented  to  Dr.  Burns  at  the  White  River \nHealth Center.  The report provided under assessment and plan that there was a tear of \nthe distal tendon of the biceps with a strain of the muscle facia and tendon of the biceps, \nalong with right should pain.  Right elbow distal biceps repair was discussed due to the \ninjury occurring in February of 2023.  The report further provided that the visit was the \nresult of an accident/injury on February 15, 2023, while loading parts onto a line overhead, \nwhere the claimant heard a popping.  The chief complaint was a right tendon tear.  The \n\nGINTHER – H303571 \nend of the report provided Cassie Miller LPN was scribing for and in the presence of Dr. \nCarpenter. (Cl. Ex. 1, P. 1 – 5) \n The claimant returned to the White River Health Center on July 18, 2023, with the \nreport providing for specified surgical aftercare, involving a strain of muscle, tendons and \nother parts of the right elbow, and providing that the date of the surgical procedure was \nJune 28, 2023.  The report referred to the same injury as the June 20, 2023, report, and \nwas provided by Dr. Carpenter. (Cl. Ex. 1, P. 6 – 10) A progress note dated August 10, \n2023, also by Dr. Carpenter, provided that the claimant had been performing therapy with \nno issues and was extending her arm at home and felt a huge pull with an audible pop.  \nThe report referred to right elbow pain and stated that the hardware was present with no \nobvious fracture. (Cl. Ex. 1, P. 11 – 16) The claimant again returned to the White River \nHealth Clinic and Dr. Carpenter on August 17, 2023, and the right elbow was tender with \nno swelling. (Cl. Ex. 1, P. 17 – 21) On September 19, 2023, the claimant was again seen \nby Dr. Carpenter, and the right elbow was nontender with no swelling observed, but with \na limited range of motion. (Cl. Ex. 1, P. 22 – 26) \n The  respondents  also  submitted  various  exhibits  that  were  admitted  without \nobjection.  The incident report dated February 15, 2023, provided that the claimant was \nsuffering pain in her right shoulder and elbow and was injured while pulling parts off the \nline, heard her right shoulder pop, and suffered pain in her forearm, biceps, and shoulder \nsince then. (Resp. Ex. 1, P. 1) \n The  respondents  also  introduced  a  medical  report  from  Dr.  Burns  dated  May  5, \n2023, which provided that the claimant presented with a complaint of right shoulder pain \noff and on since February 15, 2023, denying a fall or injury, but the report providing that \n\nGINTHER – H303571 \nthe claimant stating she does a lot of repetitive lifting while at work.  The report went on \nto provide that x rays would be obtained of the right shoulder and arm. (Resp. Ex. 2, P. \n1, 2) A right arm MRI report review with the claimant dated June 20, 2023, provided for a \ndiscussion of the right elbow distal biceps repair since the injury was February of 2023. \n(Resp. Ex. 3, P. 1, 2) A report from White River Ortho and Sports Medicine provided that \nthe  claimant  could  return  to  work  on  August  11,  2023,  on  light  one  arm  duty.    Dr. \nCarpenter saw the claimant in his office on August 17, 2023, placing work restrictions on \nthe claimant of one-handed duty with no lifting, reaching, pushing, or pulling involving the \nright arm.  The claimant was again seen by Dr. Carpenter on September 19, 2023, and \nthe  report provided  the  claimant  could  return  to  work  on  September  20,  2023,  with  no \nlifting over 5 pounds. (Resp. Ex. 4, P. 1 – 4)  \n The  respondents  also  submitted  the  deposition  of  the  Claimant,  taken  on \nDecember 4, 2023. The deposition provided that the claimant had a previous workers’ \ncompensation claim involving a hip and had filed a claim for Social Security Disability for \nhip  dysplasia  and  club  feet,  and  possibly  back  pain,  a  number  of  years earlier.    The \nclaimant testified during her deposition that she heard a pop in her arm near her elbow \non the inside of her arm in the morning during her shift.  She initially told Paige Jones, a \nco-worker, who was standing next to her, and then told Annie Stegall, her supervisor.  Ms. \nStegall requested that the claimant fill out an incident report. The claimant testified she \nthen filled out the report.  The claimant was specifically asked about the incident report \nproviding that she was pulling parts off the line and heard her right shoulder pop and that \nshe  had  pain  in  her  right  forearm,  bicep,  and  shoulder  since  then  and  she  responded \n“Correct.”  She went on to state that she assumed that she had pulled a muscle and went \n\nGINTHER – H303571 \nhome and rested, after finishing her shift.  She also stated at the time of her deposition \nthat  Dr.  Burns  referred  her  as  her  personal  primary  physician  to  Dr.  Carpenter.  She \ntestified that  she  told  the  respondent  she  was  going  to  see  Dr.  Carpenter,  which was \ndenied. (Resp. Ex. 7, P. 24 – 33)  \nDISCUSSION AND ADJUDICATION OF ISSUES \n In regard to the primary issue of compensability, the claimant has the burden of \nproving by a preponderance of the evidence that she is entitled to compensation benefits \nfor  the  injury  to her right arm on  February  15,  2023, under  the  Arkansas  Workers’ \nCompensation Law.   In  determining  whether  the  claimant has  sustained her burden  of \nproof, the Commission shall weigh the evidence impartially, without giving the benefit of \nthe doubt to either party.  Ark. Code Ann 11-9-704.  Wade v. Mr. Cavanaugh’s, 298 Ark. \n364, 768 S.W. 2d 521 (1989).  Further, the Commission has the duty to translate evidence \non all issues before it into findings of fact.  Weldon v. Pierce Brothers Construction Co., \n54 Ark. App. 344, 925 S.W.2d 179 (1996). \n The  claimant  contends she  injured  her right arm at  the  time  of a work-related \nincident on February 15, 2023, and is entitled to reasonable and necessary medical for \nthe right arm injury, which would include the surgery already performed.  The respondents \ncontroverted the claim in its entirety, contending that the claimant could not establish by \na  preponderance  of  the  evidence  that  she  sustained  a  compensable  injury  during  the \ncourse and scope of her employment.    \n The claimant was born January 31, 1990, and was 34 years old at the time of the \nhearing.  She  started  working  for  the  respondent  during  October  of  2022,  where  she \ncontinues to work as a Paint Technician.  In regard to the claimed work injury on February \n\nGINTHER – H303571 \n15, 2023, the claimant testified she was removing jack stands from an overhead line when \nshe heard a popping she described occurring in her right shoulder at one point and also \ndescribed  occurring  in  her  right  forearm.    Her  co-worker,  Paige  Jones,  performing  the \nsame actions on the same line and who was approximately two and a half feet away from \nthe claimant, testified that she heard a pop and noticed that the claimant’s arm appeared \nlimp, and then asked the claimant at that time what had happened.  The response from \nthe claimant was that she did not know.  The claimant went on to testify that as fate would \nhave  it,  Annie  Stigall,  the  Operations  Manager,  walked  by  about  that  time,  and  the \nclaimant told her what had occurred.  Ms. Stigall instructed the claimant to go to the Safety \nCoordinator and fill out an incident report.  The claimant obtained the report form, filled it \nout, and brought  it  back to  the  line,  where  she requested  that her  co-worker  sign  the \nreport, and  then  returned  the  incident  report  to  the  Operations  Manager.  The  claimant \ncontinued to work that day and for approximately three more months thereafter, initially \nthinking that she had simply pulled a muscle. \n The claimant either self-imposed light duty for herself or light duty was provided to \nher by her supervisors.  In any case, the uncontroverted testimony is that the claimant \nlater notified the Safety Coordinator that she needed medical attention and was then sent \nto the clinic that provided workers’ compensation care for the respondent, White  River \nHealth  Center. The  doctor who normally treated workers’ compensation claims for the \nrespondent was apparently unavailable, and the claimant saw Dr. Burns who worked in \nthe same clinic, and who also happened to be her personal primary care physician.  Dr. \nBurns referred the claimant to Dr. Carpenter, who after various imaging modalities, and \na clinic visit, recommended surgery for a tear of the distal tendon of the right bicep, and \n\nGINTHER – H303571 \nthe surgery was later performed.  The initial visit to Dr. Burns was treated and paid for by \nthe respondent as a workers’ compensation doctor’s  visit,  but  that was  the  only  health \ncare that was treated as a workers’ compensation related matter.  Testimony from both \nthe  respondent  and  claimant  provided  that the  claimant  was off  work  three  weeks  and \none day due to the surgery and a healing period after the surgery on the forearm. \n The respondent based their denial of the claim on the fact that the claimant initially \nstated that she heard her shoulder pop in a noisy, large manufacturing center, and that \nshe  waited  approximately  three  months  before  requesting  health  care  in  regard  to the \ninjury. \n  Discrepancies were  noted  in the claimant’s testimony during her deposition and \nher  testimony during  the  actual  hearing in  regard  to where  the heard pop emanated, \nalthough the  claimant  and  her  coworker who  was  working  near  here, both  testified  to \nhearing a pop.  However, Paige Jones, the co-worker, also testified that she noticed that \nthe claimant’s right arm appeared limp immediately after the incident. \n The  actual  incident  report  signed  by  the  claimant  and  witnessed  by  co-worker \nPaige Jones, who was less than three feet away at the time of the incident, was filed on \nthe date of the injury and provided that the claimant injured her right bicep and shoulder \nwhile  pulling  parts  off  of  an  overhead  line, when the  claimant  heard  her  right  shoulder \npop, and then suffered pain in her right shoulder, forearm, and biceps.  This report filed \nshortly after the incident on February 15, 2023, corresponds with the medical report by \nDr.  Burns  on  June  20,  2023,  and  the  findings  of  Dr.  Carpenter, who later performed \nsurgery for a tear involving the distal right bicep.   \n\nGINTHER – H303571 \n Under workers’ compensation law in Arkansas, a compensable  injury  must  be \nestablished  by medical  evidence  supported by  objective  findings  and  medical opinions \naddressing  compensability and must  be  stated  within  a  degree  of  medical  certainty. \nSmith-Blair,  Inc.  v.  Jones,  77  Ark.  App.  273,  72  S.W.3d  560  (2002).    Speculation  and \nconjecture cannot substitute for credible evidence.  Liaromatis v. Baxter County Regional \nHospital,  95  Ark.  App.  296,  236  S.W.3d  524  (2006).    More  specifically,  to  prove  a \ncompensable injury, the claimant must establish by a preponderance of the evidence: (1) \nan injury arising out of and in the course of employment; (2) that the injury caused internal \nor external harm to the body which required medical services or resulted in disability or \ndeath; (3) medical evidence supported by objective findings, as defined in A.C.A. 11-9-\n102 (16) establishing the injury and (4) that the injury was caused by a specific incident \nand identifiable by time and place of occurrence.  If the claimant fails to establish any of \nthe requirements for establishing the compensability of the claim, compensation must be \ndenied.  Mikel v. Engineered Specialty Plastics, 56 Ark. App. 126, 938 s.W.2d 876 (1997). \n An  injury for  which  the  claimant  seeks  benefits must  be  established  by  medical \nevidence supported by objective findings which are those findings that cannot come under \nthe voluntary control of the patient. A.C.A. 11-9-102 (16).  It is also important to note that \nthe claimant’s testimony is never considered uncontroverted.  Lambert v. Gerber Products \nCo.  14 Ark. App. 88, 684 S.W.2d 842 (1985).  \n Here, the incident report of February 15, 2023, and the findings in the later medical \nrecords are  found  to  be  causally  related to the  same  incident.  The  testimony  of  the \nclaimant, even with the noted discrepancies, and the testimony of the coworker are found \nto  be  believable, providing  that  an  injury  was  caused  by  a  specific  incident.    It  is  also \n\nGINTHER – H303571 \nnoted that Arkansas law does not require in every case to establish the casual connection \nbetween a work-related incident and an injury with an expert medical opinion.  See Wal-\nMart Stores, Inc. v. VanWagner, 337 Ark. 443, 990 S.W.2d 522 (1999).  Arkansas courts \nhave  long  recognized  that  a  causal  relationship  may  be  established  between  an \nemployment-related  incident  and  a  subsequent  physical  injury  based  on  evidence  that \nthe injury manifested itself within a reasonable period of time following the incident so that \nthe  injury  is  logically  attributable  to  the  incident,  where  there  is  no  other  reasonable \nexplanation for the injury.  Hail v. Pitman Construction Co. 235 Ark. 104, 357 A.W.2d 263 \n(1962) That is found to be the case in the matter currently before the Commission. \n A workers’ compensation claimant bears the burden of proving the compensable \ninjury by a preponderance of the evidence. A.C.A. 11-9-102 (4) (E) (i).  A compensable \ninjury is one that was the result of an accident that arose in the course of his employment \nand  that  it  grew  out  of  or  resulted  from  the  employment.   See  Moore  v.  Darling  Store \nFixtures, 22 Ar. App 21, 732 S.W.2d 496 (1987)  Based upon the available evidence in \nthe  case  at  bar, there  is  no  alternative  but  to find  that  the  claimant  has  satisfied the \nrequired burden of proof by a preponderance of the credible evidence to show that the \ninjury to her right forearm on February 15, 2023, is in fact work related and compensable \nunder the Arkansas Workers’ Compensation Act. \n In  regard  to  the  medical,  the Arkansas  Compensation  Act  provides  that  an \nemployer shall promptly provide for an injured employee such medical treatment as may \nbe reasonably necessary in connection with the injury received by the employee.  A.C.A. \n11-9-508(a).    The  employee  has  the  burden  of  proving  by  a  preponderance  of  the \nevidence  that  medical  treatment  is  reasonably  necessary.   Stone  v.  Dollar  General \n\nGINTHER – H303571 \nStores,  91  Ark.  App.  260,  209  S.W.  3d  445  (2005).    Preponderance  of  the  evidence \nmeans the evidence having greater weight or convincing force.  Metropolitan Nat’l Bank \nv. La Sher Oil Co., 81 Ark App. 263, 101 S.W.3d 252 (2003).  What constitutes reasonably \nnecessary medical treatment is a question of fact for the Commission.  Wright Contracting \nCo. v. Randall, 12 Ark. App. 358, 676 S.W.2d 750 (1984).  In the present matter, the initial \ntreatment by Dr. Burns, and the follow-up treatment and surgery by Dr. Carpenter, along \nwith the physical therapy, are found to be both reasonable and necessary.  \n It is also found that the claimant has satisfied the burden of proof that she is entitled \nto temporary  total disability for  a  period of  three  weeks  and  one  day,  based  upon  the \ntestimony the claimant missed that period from work, starting on the date of the surgery \nand returning to work three weeks and one day later.  It is noted that the claimant had \nworked  up  to  the  time  of  the  surgery,  only  missing  a  very  limited  amount  of  work.  \nTemporary  total  disability  is  the period  of  time  within  the  healing  period in  which  an \nemployee  suffers  a  total  incapacity  to  earn  wages.   Arkansas  State  Highway  and \nTransportation  Department  v.  Brashears,  272  Ark.  App.  244,  613  s.W.2d  392  (1981).  \nDisability  means  incapacity  because  of  injury  to  earn,  in  the  same  or  any  other \nemployment, the wages which the employee was receiving at the time of the injury.  The \nCommission may consider the claimant’s physical capabilities and evaluate her ability to \nengage in any gainful employment.  Here, the claimant continued to work after the injury \nof February 15, 2023, until finally being examined by a physician, where it was determined \nthat surgery would be required to correct the issue involving her right forearm.   It appears \nthat the surgery actually occurred on the date of June 28, 2023, based upon a medical \n\nGINTHER – H303571 \nreport, and from the testimony of both the claimant and the witness for the respondent, \nclaimant returned to work in some capacity three weeks and one day later.  \n After weighing the evidence impartially, without giving the benefit of the doubt to \neither party, it is found that the claimant has satisfied her burden of proof to show that she \nsuffered a work-related injury to her forearm on February 15, 2023, and that her claim is \nfound  to  be compensable.    She  is  also found  to  be entitled  to  both reasonable  and \nnecessary medical care, which includes the surgery to her right forearm performed by Dr. \nCarpenter,  as  well as follow  up  physical therapy and is also entitled  to temporary  total \ndisability for a three-week, one-day period.  \n The claimant and her attorney are entitled to the appropriate legal fees as spelled \nout in A.C.A. 11-9-715 \n This award shall bear interest at the legal rate pursuant to A.C.A. 11-9-809.  If not \nalready paid, the respondents are ordered to pay the cost of the transcript forthwith. \nIT IS SO ORDERED. \n            ___________________________ \n      JAMES D. KENNEDY \n      Administrative Law Judge","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H303571 MARY M. GINTHER, EMPLOYEE CLAIMANT VS. EMERSON ELECTRIC COMPANY, EMPLOYER RESPONDENT OLD REPUBLICAN INSURANCE CO./ MITCHELL, WILLIAMS, SELIG, GATES AND WOODYARD, P.L.L.C., INSURANCE CARRIER/TPA RESPONDENT OPINION FILED OCTOBER 1, 2024 Hearing before...","fetched_at":"2026-05-19T22:47:05.730Z","links":{"html":"/opinions/alj-H303571-2024-10-01","pdf":"https://labor.arkansas.gov/wp-content/uploads/GINTHER_MARY_H303571_20241001.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}