{"id":"alj-H303578-2024-05-03","awcc_number":"H303578","decision_date":"2024-05-03","opinion_type":"alj","claimant_name":"Brandon Shackleford","employer_name":"Allen Family Enterprises, LLC","title":"SHACKLEFORD VS. ALLEN FAMILY ENTERPRISES, LLC AWCC# H303578 May 3, 2024","outcome":"granted","outcome_keywords":["granted:7"],"injury_keywords":["sprain"],"pdf_url":"https://www.labor.arkansas.gov/wp-content/uploads/SHACKLEFORD_BRANDON_H303578_20240503.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"SHACKLEFORD_BRANDON_H303578_20240503.pdf","text_length":29868,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nAWCC FILE No H303578 \n \nBRANDON G. SHACKLEFORD, EMPLOYEE      CLAIMANT \n \nALLEN FAMILY ENTERPRISES, LLC, (AFE, LLC,)  \nEMPLOYER                        RESPONDENT \n    \nNATIONAL INSURANCE COMPANY/SEDGEWICK \nCLAIMS MANAGEMENT SERCVICES, INC, CARRIER/TPA       RESPONDENT \n \n \n \nOPINION FILED 3 MAY 2024 \n \n \n \nHeard before Arkansas Workers’ Compensation Commission (AWCC) Administrative Law \nJudge JayO. Howe on 7 February 2024 in Little Rock, Arkansas. \n \nMr. Gary Davis, of the Davis Law Firm, appeared for the claimant. \n \nMr. Jason Ryburn, of the Ryburn Law Firm, appeared for the respondents. \n \nI.  STATEMENT OF THE CASE \n \nThe above-captioned case was heard on 7 February 2024 in Little Rock, Arkansas, after \nthe  parties participated  in  a pre-hearing  telephone  conference  on 19 September 2023.  The \nsubsequent Prehearing Order, admitted to the record without objection as Commission’s \nExhibit No 1, was entered on the same day that the conference was held. The Order stated \nthe following ISSUES TO BE LITIGATED: \n1.  Compensability. \n2.  Temporary Total Disability (TTD) benefits. \n3.  Medical Benefits. \n4.  Controverted Attorney’s Fee. \nThe parties’ CONTENTIONS, as set forth in their Prehearing Questionnaire Responses, \nwere incorporated into the Prehearing Order. The claimant contends: \n\nSHACKLEFORD- H303578  \n2 \n \n1.  That he sustained compensable injuries on or about 5 May 2023 to his right arm and \nelbow. \n2. That he is entitled to TTD benefits from 15 May 2023\n1\n through a date yet to be \ndetermined. \n3.  That he is entitled to coverage for reasonable and necessary medical expenses. \n4.  That he is entitled to a controverted attorney’s fee. \nThe respondents contend: \n1. That the claimant did not sustain a compensable injury. \n2. That the claimant sought and underwent unauthorized treatment.\n2\n \n3. That to the extent that the claimant may be entitled to TTD benefits, the \nrespondents are entitled to a credit for any unemployment benefits he received during a \nperiod of TTD entitlement.\n3\n \nThat Order also set forth the following STIPULATIONS: \n1.  The AWCC has jurisdiction over this claim. \n2.  An employee/employer/carrier relationship existed on or about 5 May 2023, at which \ntime the claimant sustained alleged injuries to his right arm and elbow. \n \n3.  Claimant’s Average Weekly Wage of $771.00 entitles him to compensation rates of \n$514.00/$386.00.\n4\n \n \nThe  following  WITNESSES  testified  at  the  hearing:  the  claimant  testified  on  his  own \nbehalf, Ms. Teresa Tessman testified on behalf of the respondents, and Mr. Chandler Jackson \nBrinkman was called by the respondents for the purpose of rebuttal testimony.\n5\n \n \n1\n See TR at 7-8. \n2\n See FN 1. \n3\n See FN 1.  \n4\n See TR at 5. \n5\n The claimant objected to Mr. Brinkman’s testimony because he was not identified with at \nleast seven days’ notice, per the Prehearing Order. That objection was sustained. His \ntestimony was then proffered as a rebuttal witness.  \n\nSHACKLEFORD- H303578  \n3 \n \nAdmitted  into  evidence  were Commission’s  Exhibit  No  1  (the  Prehearing  Order), \nClaimant’s Exhibit Nos 1 (medical records between 05/15/2023 and 08/03/2023), 2 (medical \nrecords between 09/28/2023 and 01/22/2024), and 3 (a text message dated 05/15/2023); and \nRespondent's Exhibit Nos 1 (miscellaneous records) and 2 (the transcript from the claimant’s \ndeposition). \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \nHaving reviewed the record as a whole and having heard testimony from the witnesses, \nobserving their demeanor, I make the following findings of fact and conclusions of law under \nACA § 11-9-704: \n1. The AWCC has jurisdiction over this claim. \n \n2. The previously noted stipulations are accepted as fact. \n \n3. The claimant proved by a preponderance of the evidence that he suffered a \ncompensable injury to his right arm/elbow by specific incident. \n \n4.  The claimant proved by a preponderance of the evidence that he is entitled to TTD \nbenefits from 15 May 2023 to a date yet to be determined, less the amount of credit the \nrespondents may claim against any unemployment benefits received by the claimant. \n \n5.  The claimant proved by a preponderance of the evidence that all treatment in \nevidence of his compensable right arm/elbow injury was reasonable and necessary. \n \n6.  The claimant proved by a preponderance of the evidence that he is entitled to a \ncontroverted attorney’s fee, under ACA § 11-9-715, on the indemnity benefits awarded \nherein. \n \nIII.  HEARING TESTIMONY & MEDICAL EVIDENCE \nClaimant Brandon Shackleford \nThe claimant is a 38-year-old male with a high school diploma. At the time relevant to \nthis  matter, he  had  been  on  the  job  with  the  respondent-employer for  about  ten  months, \nworking on  a  crew  that performed  parallel drilling and  placed conduit for underground \nutilities. [TR at 17.]  \n\nSHACKLEFORD- H303578  \n4 \n \nAccording to the claimant, he and his crew were working at a residential neighborhood in \nBenton  on  5  May  2023.  They  were  having  trouble  breaking  through  the  ground,  so  the \nclaimant borrowed a rock bar tool from other contractors also on the site. [TR at 18-19.] A \nrock bar, he explained, is a heavy steel pole, about six feet long and weighing thirty-five or \nso  pounds, with  a  sharpened  point  on  one  end  that  can  help  loosen  solid  ground.  Mr. \nShackleford said that when he stabbed the bar into the ground, he felt something in his elbow \nand knew that “[s]omething was not right.” [TR at 20.] He  described  the  pain  as  a  sharp, \nripping  pain,  but  tried  to  keep  working.  The  claimant  stated  that  he later struggled  to \nmanage  a  water  line  issue  by  himself (as  he  normally  would) and  that  others  on  the  crew \nultimately had to join in to help with the fix. [TR at 22.] The claimant testified that Chandler \nJackson Brinkman was with him when he first hurt his arm, that he told his supervisor “B.J.” \nthat his arm was “messed up” from using the rock bar, and  that B.J. did  not  ask him  any \nquestions about it afterwards. [TR at 23.] \nMr. Shackleford testified that the next week everyone knew he had been hurt and that \nhe reported his arm being swollen to “Trevor” (his contact for work scheduling), but that he \nreceived no direction on seeking care. [TR at 25.] He went on, “It came around Sunday and \nI’m still no better and I said, ‘I’ve had enough of it,’ and I ended up contacting the owners of \nthe company.” [TR at 28.] Mr. Shackelford recalled sending a text message: “Look I need to \nget the workers’ compensation information and get something going, ‘cause my arm ain’t no \nbetter.” The text was sent on Sunday, 14 May 2023, to owner Jeremy “Beau” Allen. [TR at \n29.] \nMr. Shackleford stated that the next day he presented to the emergency department at \nSaline  Memorial  Hospital,  following  direction  from  Teresa  Tessman,  a  co-owner  of  the \nrespondent employer. [TR at 30.] The encounter notes from that visit show that the claimant \nreported pain in his elbow and arm after using a heavy metal bar to break up the ground. He \n\nSHACKLEFORD- H303578  \n5 \n \nwas  diagnosed  with  Lateral  Epicondylitis  of  the  elbow.\n6\n [Cl. Ex. No 1 at 2.] The  claimant \ntestified  that  he  followed  up days  later at  a  Concentra  clinic,  again  at  the  direction  of  his \nemployers.  [TR  at  31.]  He  then  went  sometime  without  care because,  according  to  his \ntestimony, he did not have adequate health insurance after separating from his employment. \nThe  claimant  explained  that  he  had  difficulty  arranging  physical  therapy treatments that \nwere recommended because the respondents “ghosted” him. [TR at 33-34.] That led him to \ncontacting counsel and then reengaging in treatment after he received approval for Medicaid \ncoverage. [TR at 35.] \nThe claimant explained that he saw a physician again and began physical therapy. “So, I \ndid the nine weeks of physical therapy, and it did no good. Then, they did an injection, and it \ndid no good either. Then, he referred me to the doctor that I have now, Dr. Norton.” Id. He \ncontinued, “Dr. Norton did everything. He got me a MRI, and then, identified that there was \nsignificant tear damage, and then repaired the damage, and then, I’m ongoing in his medical \ncare right now.” [TR at 36.] He  said  that  his  then-current  treatment  included  physical \ntherapy two times per week. Id. \nAfter reporting the injury, seeking care, obtaining restrictions, and following up with the \nrespondents about returning to work, Mr. Shackleford stated that he was told that light duty \nwas  not  available.  They  offered,  according  to  his  testimony,  to  match  his accrued  and \navailable paid time off (PTO) of five days with another five days of paid time off work.  \nBy then, after they tell me, after my last day of being on PT – or the \nday  that  they  matched  me,  which  was  going  to  be  ten  paid  days \naltogether that, hopefully, by then my workers’ compensation would \nkick  in. On the – my  10\nth\n day of  being  paid this  PTO  that  they was \nmatching, they ended up sending me a letter and it was resigning me \nfrom my job, terminating me.  \n \n \n6\n The diagnosis line on the note mistakenly lists the left arm, while the rest of the note \nconsistently refers to the right arm, which is consistent with the claimant’s testimony and \nthe issues before the Commission. The reference to his left arm is clearly a scrivener’s error. \n\nSHACKLEFORD- H303578  \n6 \n \n[TR at 38.] \nMr. Shackleford eventually applied for unemployment and testified that the respondent-\nemployer objected to his unemployment benefits, so a hearing was scheduled on that matter. \n[TR at 37.] He said that for their argument against benefits being granted, the respondents \ncited excessive  absenteeism.  The  claimant eventually prevailed  and  received  benefits.  He \nrecalled that the amount was around $4,800 or consistent with the amounts reflected in the \nrecords provided by the respondents.\n7\n  \nIn  closing  his  testimony  on  direct  examination,  the  claimant  stated  that  he  did  not \nexperience problems with his right arm prior to the work incident at issue in this claim. [TR \nat 39.] \nOn cross examination, the claimant confirmed that the rock bar he used at the work site \nwas borrowed from another crew on location and that it was bent. Still, the bar was heavy, \nand he hoped it would help break through the hard ground. [TR at 43-44.] Mr. Shackleford \nrecalled stabbing the bar at the ground only once, and then his coworker tried a time or two \nbefore Trevor told them to stop because he thought that a gas leak might have caused the \nground to harden. [TR at 45.] He testified again that he tried to continue working that day, \nbut  that  he  did  not  do  any  more  digging  after  hurting  his  arm.  He also  said that as  he \ncontinued  to  experience  trouble  with  his  arm, he  attempted  to  seek  guidance from  his \nemployer on  obtaining care.  [TR  at  46.] The  claimant  agreed that  he was  paid  through  26 \nMay  2023  and  that  the  last ten days  of his pay  were from earned  PTO combined  with the \nmatching time offered by the respondents. [TR at 51.] \nThe examination then turned to the claimant’s application for unemployment benefits. \nHe  affirmed that  he  supplied the responses  and  information  submitted  on  his  benefits \n \n7\n The total amount paid in benefits, as reflected in Resp. Ex. No 1 at 1, is $4,880.00. \n\nSHACKLEFORD- H303578  \n7 \n \napplication  [Resp.  Ex.  No  1  at  1-30]  and offered that  any  inconsistency  between  the \nstatements in the application and those related to his workers’ compensation claim could be \nattributed to the direction or assistance of the staff to whom he explained his situation and \nwho helped him complete the forms. [TR at 59.] \nHe went on to say that when he returned to work on the Monday after injuring his arm, \n“[e]verybody’s talking to me about my arm,” which was notably swollen at the time. [TR at \n68.] Mr. Shackleford opined that in addition to those discussions that day, everyone on the \ncrew was in contact on the job site via Bluetooth headsets and all would have already known \nabout him getting hurt.  \nWitness Teresa Tessman, co-owner of the respondent-employer \nMs. Tessman testified that she handles “everything” regarding business administration, \n“[e]xcept for operations.” [TR at 75.] She stated that she first became aware of the claimant’s \ninjury on May 14\nth\n after co-owner Beau Allen advised her that the claimant was requesting \ninformation on filing a workers’ compensation claim. Ms. Tessman spoke with the claimant \nand directed him to seek appropriate care. She said that he reported hurting his elbow, but \nthat she did not know when the injury occurred until she was told by other members of the \ncrew. [TR at 76.] Ms. Tessman set the date of injury as 1 May 2023. [TR at 77.] She denied \nthat the claimant ever told her that he was injured on 5 May 2023. [TR at 81.] \nOn cross examination, Ms. Tessman testified that even if the claimant had indicated a \ndate of injury as May 1\nst\n, instead of May 5\nth\n, she still would have denied his claim. [TR at 82.] \nShe then stated that B.J. Coburn, another employee, was not present at the hearing because \nhe  was  out working. She  also said that Trevor,  another  employee  whose  name  appears  on \nsome text messages offered as evidence [Resp. Ex. No 1 at 79-81], was not present as a witness \nfor the same reason. [TR at 84-85.] \n\nSHACKLEFORD- H303578  \n8 \n \nMs.  Tessman  then  offered, under  redirect examination, that  Trevor was  not  present  to \ntestify because he was the company’s only driller, and that “[t]aking him off the job puts us \ncompletely out of production for a day. So in the—what he could testify to versus us losing \nthe money for the day was a decision that was made.” [TR at 88.] \nMedical Evidence \nA Saline  Memorial  Hospital  emergency  department  note  reflects  that  the  claimant \npresented on 15 May 2023, with a complaint of right arm/elbow pain that was worsening over \nthe previous two weeks. The record includes the following: \n37-year-old male presents [to] emergency room for complaints of pain in his \nright elbo[w] extending distally down his right forearm. Patient states that he \nis a line worker and was using a heavy metal bar to break up the ground and \nthe bar twisted and got out of balance causing him to twist his elbow. Onset x2 \nweeks.  States  it  is  just  gradually  getting worse, and  he  is  having  difficulty \nusing his arm. \n \n. . . \n \nSudden onset of symptoms, 2 weeks ago, Symptoms are worsening. \n \n[Cl. Ex. No 1 at 1-11.] X-ray findings were negative, and he was discharged with a diagnosis \nof  Lateral  Epicondylitis  or  tennis  elbow,  a  splint/sling  for  his  arm,  and  prescriptions  for \nMedrol and Ketorolac. \n He followed  up  at  a  Concentra  clinic  on  19  May  2023.  The record from  that  visit \nreflects a diagnosis of Right Elbow Tendonitis, more medication(s) being prescribed, orders \nfor  physical  therapy, and work restrictions of “No lifting more than 10 lbs right arm” and \n“May not grip/squeeze/pinch with right upper extremity.” Id. at 12. \n Mr. Shackleford received a referral for physical therapy from Dr. Michael Weber on 3 \nAugust  2023. Id.  at  13. An  MRI  report  dated  28  August  2023  included  the  following \nimpressions: \nLateral epicondylitis, manifested by high-grade intrasubstance tearing of the \ncommon extensor tendon, on a background of severe tendinosis. \n\nSHACKLEFORD- H303578  \n9 \n \n \nLow-grade lateral ulnar collateral ligament sprain. \n \nMild common flexor tendinosis. \n \nLow-grade sprain anterior band ulnar collateral ligament. \n \nMild distal biceps tendinosis. Mild reactive bicipitoradial edema and/or \nbursitis is noted. \n \nMild elbow osteoarthritis. \n \n[Cl. Ex. No 2 at 1.] \n      He   subsequently   underwent   surgical   repair with   Dr.   Brian   Norton for   lateral \nepicondylitis and common extensor tendon tear of the right arm. The operative note, dated 9 \nOctober  2023,  indicated  that  surgery  was  the  best  option  as  conservative  treatment  had \nfailed. [Cl. Ex. No 2 at 2-3.] The  claimant  followed  post-surgically  with  Dr.  Norton,  who \nrestricted him to off-work status for four weeks in a note dated 22 January 2024. [Cl. Ex. No \n1 at 4.] \nIV.  ADJUDICATION \nThe stipulated facts, as agreed during the pre-hearing conference, are outlined above. It \nis settled that the Commission, with the benefit of being in the presence of the witness and \nobserving his or her 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 MET HIS BURDEN IN PROVING THAT HE SUFFERED A \nCOMPENSABLE INJURY. \n \nUnder Arkansas’ Workers’ Compensation laws, a worker has the burden of proving by a \npreponderance  of  the  evidence  that  he  sustained  a  compensable  injury  as  the  result  of  a \nspecific 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-\n\nSHACKLEFORD- H303578  \n10 \n \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 need \nto be established by objective findings when the objective medical evidence establishes that \nan injury exists and other nonmedical evidence shows that it is more likely than not that the \ninjury was caused by an incident in the workplace. Bean v. Reynolds Consumer Prods., 2022 \nArk.  App  276,  646  S.W.3d  655,  2022  Ark.  App.  LEXIS  276, citing Wal-Mart  Stores, Inc.  v. \nVanWagner, supra. \nThe claimant alleges that his injury occurred by specific incident. The claimant must \nestablish  four  (4)  factors  by  a  preponderance  of  the  evidence  to  prove  a  specific  incident \ninjury: (1) that the injury arose during the course of employment; (2) that the injury caused \nan  actual  harm  that  required  medical  attention;  (3)  that  objective  findings  support  the \nmedical evidence; and (4) that the injury was caused by a particular incident, identifiable in \ntime and place. See Cossey v. G. A. Thomas Racing Stable, 2009 Ark. App. 666,5, 344 S.W.3d \n684, 689. \nBased on the credible evidence presented, I find that Mr. Shackelford met his burden of \nestablishing that he sustained a compensable injury. The claimant testified credibly that he \nhurt himself while using a rock bar and trying to dig a hole. He made reports to others about \nhis injury and did not work most of the next week because he continued having trouble with \nhis  arm  or  because  of  rain.  Over  the  course  of  that  week  and  through  the  weekend,  his \ncondition continued to worsen, and he did not receive direction from the respondents about \nseeking  care. Mr. Shackleford eventually contacted the company’s owners,  who  provided \nclaim information and directed him to either emergent or urgent care.   \nThe claimant’s medical notes record his report of injuring his arm and elbow while using \na heavy metal bar at work and that the problem worsened over the two weeks preceding his \npresentation for treatment. The note specifically relays, “Time Course: Sudden onset of \n\nSHACKLEFORD- H303578  \n11 \n \nsymptoms, 2 weeks ago, symptoms are worsening.” This is consistent with Mr. Shackleford’s \nversion  of  the  events.  He  was  initially  diagnosed  with  epicondylitis  or  tendonitis.  That \ndiagnosis was later confirmed via an MRI scan which also found a high-grade tendon tear \nand  a  low-grade  ligament  sprain,  in  addition  to  mild  tendinosis  and  arthritis. A  causal \nrelationship may be established between an employment-related incident and a subsequent \nphysical injury based on the evidence that the injury manifested itself within a reasonable \nperiod of time following the incident, so that the injury is logically attributable to the incident, \nwhere there is no other reasonable explanation for the injury. Hall v. Pittman Construction \nCo., 234 Ark. 104, 357 S.W.2d 263 (1962). Mr. Shackleford testified that he had not previously \nmissed work for an arm injury. \nThe respondents denied this claim altogether. They argued that they do not agree with \nthe claimed date of the injury. Ms. Tessman was asked, “can you tell me as far as your \nunderstanding from your investigation as to what the date of the injury was?” and she \nanswered, “Yes. May 1\nst\n.” She was later asked if the claim would have been denied even if \nthe claimant alleged, consistent with her own investigation’s findings, a date of injury of May \n1\nst\n instead  of  May  5\nth\n. She responded that she would “absolutely” have  denied  it anyway \nbecause, somewhat quizzically, she did not “think it happened.”  \nAs discussed during Ms. Tessman’s examination,\n8\n an earlier scheduled hearing date on \nthis  matter  was  continued,  at  least  in  part,  due  to  the  unexpected  unavailability  of the \nrespondent’s employee/intended witness named Trevor. When asked about Trevor’s absence, \nin light of the earlier continuance requested on that basis, she said that Trevor was working \nand, thus, not made available to testify. She explained that Trevor was the company’s only \ndriller  and that without  him  on the  job, they would  have  lost  money for  the  day. She  also \n \n8\n TR at 87-90. \n\nSHACKLEFORD- H303578  \n12 \n \nsuggested that he was not made available because “he was not there when it happened” \n(emphasis added). The “it” here appears to be the same “it” that she thought did not happen. \nHaving  observed  her  demeanor throughout  her  testimony  and  specifically  regarding \nTrevor’s absence and  considering  her poorly  supported,  if  not  inconsistent,  position  on  the \nclaimant’s injury either happening on a date other than he recalled  or supposedly not \nhappening at all, I find her credibility to be very suspect.  \nStill,  I  will  address  the  possible  discrepancy  regarding  the  actual  date  of  the  injury, \nbecause I do not find some question between whether Mr. Shackleford took up the rock bar \non May  the  1\nst\n or  May  the  5\nth\n to  be  fatal  to  his  claim for  a  compensable  injury  by  specific \nincident.  While  the  respondents  attempted  towards  the  end  of  the  hearing to offer  an \nalternative argument towards the claimant not meeting his burden for the injury occurring \nvia gradual onset, this claim was not brought as a gradual onset injury. In Pulaski County \nSpecial  Sch.  Dist.  V.  Laster,  2015  Ark.  App.  206, *6; 465  S.W.3d  421, 425; 2015  Ark.  App. \nLEXIS 262, ***7 our Court of Appeals helpfully explained: \nThis case was tried as an accidental injury case, not a gradual-onset one. \nSo, [Claimant] had the burden to prove, by a preponderance of the evidence, \nthat he sustained an \"accidental injury . . . arising out of and in the course of \nemployment[.]\" Ark. Code Ann. § 11-9-102(4)(A)(i) (Repl. 2012). \"An injury is \n'accidental' only if it is caused by a specific incident and is identifiable by time \nand place of occurrence[.]\" Ark. Code Ann. § 11-9-102(4)(A)(i). In Edens v. \nSuperior Marble & Glass, our supreme court held that \"identifiable by time \nand place\" meant subject to identification and did not require the claimant to \nspecify the exact time of the occurrence. 346 Ark. 487, 492, 58 S.W.3d 369, 373 \n(2001). A claimant's inability to specify the exact date and the precise time of \nthe accidental injury is a credibility issue that the Commission may \nweigh. Pafford Med. Billing Servs., Inc. v. Smith, 2011 Ark. App. 180, 381 \nS.W.3d 921. Still, [Claimant] must show a causal relationship between his \nemployment and the injury. Wal-Mart Stores, Inc. v. Westbrook, 77 Ark. App. \n167, 72 S.W.3d 889 (2002). Whether the causal connection exists is a fact \nquestion the Commission settles. Jeter v. B.R. McGinty Mech., 62 Ark. App. 53, \n59, 968 S.W.2d 645, 650 (1998). \n \n\nSHACKLEFORD- H303578  \n13 \n \nId. Whether the claimant was working with a rock bar on a Monday or a Friday, I find him \nto be credible in relaying that that is the incident that caused his injury, and he reported the \nsame  to  medical  providers  at  the  time  he  first  sought  treatment  for  his injury.  No  other \npossible intervening incidents were offered into the record as an alternative to the claimant’s \nversion of events, even if his recollection of the particular day may have been off. And the \navailable  medical  evidence  supports  his  report  of  a  workplace  injury  with  a  rock  bar  and \nsubsequent treatment efforts related to the same. His explanation of the cause of his injury \nand  the objective findings  support  resolving  his  claim for  a  compensable  injury by  specific \nincident in  his  favor. In Edens, supra,  the  Arkansas  Supreme  Court  made  clear  that  the \nstatute  only  requires  that  a  claimant  prove  that  the  occurrence  of  the  injury  is  capable  of \nbeing identified. \nB.   THE CLAIMANT MET HIS BURDEN IN PROVING THAT HE IS ENTITLED TO \nTEMPORARY TOTAL DISABILITY BENEFITS. \n \nThe  claimant  has  proven  a  compensable  scheduled  injury  in  this  claim. He  is,  thus, \nentitled  to  temporary  total  disability  (TTD)  benefits  during  his  healing  period  or  until  he \nreturns  to  work,  whichever  happens  first.  Ark.  Code  Ann.  §  11-9-521.  The  claimant  must \nprove his entitlement to TTD benefits by a preponderance of the evidence. Ark. Code Ann. § \n11-9-705(a)(3). \nIt is not disputed that the claimant has not worked since his 15 May 2023 visit to the \nemergency department, the date on which they contend his TTD benefits should begin. He \ncontinued  to  seek  treatment  at  various  times  between  his  initial  presentation  to  the \nemergency department and the hearing on this claim. In fact, at the time of the hearing, the \nclaimant was under a physician’s post-operative order, dated 22 January 2024, to remain off \nwork for four (4) weeks. The preponderance of the evidence establishes that he has not yet \n\nSHACKLEFORD- H303578  \n14 \n \nreached  the  end  of  his  healing  period. Mr.  Shackleford  has,  therefore,  proven  that  he  is \nentitled to TTD benefits from 15 May 2023 to a date yet to be determined.  \nIt  is  also  not  disputed,  however,  that  the  claimant  received  unemployment  benefits \nduring some of this time. “[I]f a claim for temporary total disability is controverted and later \ndetermined  to  be  compensable,  temporary  total  disability  shall  be  payable  to an  injured \nemployee with respect to any week for which the injured employee receives unemployment \nbenefits but only to the extent that the temporary total disability otherwise payable exceeds \nthe unemployment benefits.”  Ark. Code Ann. § 11-9-506(b). The  respondents  are, thus, \nentitled to a credit against the TTD benefit amount owed for those weeks that the claimant \nreceived unemployment benefits in an amount equal to the weekly unemployment benefit he \nreceived. \nC.   THE CLAIMANT IS ENTITLED TO REASONABLE AND NECESSARY MEDICAL \nBENEFITS ASSOCIATED WITH HIS COMPENSABLE INJURY. \n \nEmployers   are   responsible   for   providing medical   services   which   are   reasonably \nnecessary in connection with compensable injuries. Ark. Code Ann. 11-9-508(a). Employees \nhave  the  burden  of  proving  by  a  preponderance  of  the  evidence  that  medical  treatment  is \nreasonably necessary. See Patchell v. Wal-Mart Stores, Inc., 86 Ark. App. 230, 184 S.W.3d 31 \n(2004). The  Commission  must  resolve,  at  times,  conflicting  medical  evidence.  See Cedar \nChemical  Co.  v.  Knight,  99  Ark.  App.  162,  258  S.W.3d  394  (2007).  Here,  however,  I  am \npresented only with the medical evidence offered by the claimant which evidences treatment \nfrom 15 May 2023 and on, with an operative noted dated 9 October 2023 that is consistent \nwith  the  diagnosis  reported  in  his  other  medical  notes  and  which  states, “[h]e has failed \nconservative treatment. I felt the best treatment option would be to proceed [with surgical \nrepair].” I  may  not  arbitrarily disregard medical  evidence.  See Patchell,  supra. The  record \n\nSHACKLEFORD- H303578  \n15 \n \ndoes  not  contain  any  evidence  suggesting  that  the  care  sought  by  the  claimant  has  been \nunreasonable or unnecessary.  \nAccordingly,  I  find  that  the  claimant  is  entitled  to  payment  and/or  repayment  for  the \nmedical services provided in the diagnosis and treatment of his compensable injury and for \nthe allowable costs associated with the same. \nD.   THE CLAIMANT IS ENTITLED TO A CONTROVERTED ATTORNEY’S FEE. \n \nThe  respondents  controverted  this  claim  in  its  entirety.  The  claimant  is,  accordingly, \nentitled to a controverted attorney’s fee consistent with the indemnity benefits associated \nwith these findings and Ark. Code Ann. § 11-9-715. \nV.  ORDER \n     The respondents are directed to pay all benefits awarded under these Findings of Fact and \nConclusions of Law. The accrued sums are owed in a lump sum without discount, and this \naward shall earn interest at the legal rate until paid. Ark. Code Ann. § 11-9-809. \n     The claimant’s attorney is entitled to a fee of twenty-five (25%) percent of the indemnity \nbenefits awarded, with one-half (1/2) to be paid by the claimant and one-half (1/2) to be paid \nby the respondents. Ark. Code Ann. § 11-9-715. \nIT IS SO ORDERED. \n \n________________________________ \n       JAYO. HOWE \n       ADMINISTRATIVE LAW JUDGE","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION AWCC FILE No H303578 BRANDON G. SHACKLEFORD, EMPLOYEE CLAIMANT ALLEN FAMILY ENTERPRISES, LLC, (AFE, LLC,) EMPLOYER RESPONDENT NATIONAL INSURANCE COMPANY/SEDGEWICK CLAIMS MANAGEMENT SERCVICES, INC, CARRIER/TPA RESPONDENT OPINION FILED 3 MAY 2024 Heard before Arkansas ...","fetched_at":"2026-05-19T22:53:49.418Z","links":{"html":"/opinions/alj-H303578-2024-05-03","pdf":"https://www.labor.arkansas.gov/wp-content/uploads/SHACKLEFORD_BRANDON_H303578_20240503.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}