{"id":"alj-H303915-2024-05-02","awcc_number":"H303915","decision_date":"2024-05-02","opinion_type":"alj","claimant_name":"Joey Davis","employer_name":null,"title":"DAVIS VS. ARKANSAS TECH UNIVERSITYAWCC# H303915 & H305142May 2, 2024","outcome":"denied","outcome_keywords":["dismissed:1","denied:3"],"injury_keywords":["shoulder","repetitive","carpal tunnel","wrist","back"],"pdf_url":"https://www.labor.arkansas.gov/wp-content/uploads/DAVIS_JOEY_H303915H305142_20240502.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"DAVIS_JOEY_H303915H305142_20240502.pdf","text_length":33253,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO. H303915 & H305142 \nJOEY DAVIS, EMPLOYEE CLAIMANT \n \nARKANSAS TECH UNIVERSITY, EMPLOYER RESPONDENT \n \nPUBLIC EMPLOYEE CLAIMS DIVISION, CARRIER RESPONDENT \n \n \n \n OPINION FILED MAY 2, 2024 \n \n \nHearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Russellville, Pope \nCounty, Arkansas. \n \nClaimant is not represented and appears pro se. \n \nRespondents represented by CHARLES H. MCLEMORE, Attorney, Little Rock, Arkansas. \n \n \n STATEMENT OF THE CASE \n  \n On March 20, 2024, the above captioned claim came on for a hearing at Russellville, Arkansas. \nA pre-hearing conference was conducted on February 22, 2024, and a pre-hearing order was filed on \nthat same date. A copy of the pre-hearing order has been marked as Commission’s Exhibit #1 and \nmade a part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1.   The Arkansas Workers’ Compensation Commission has jurisdiction of this claim.  \n            2.    The employee/employer/carrier relationship existed on June 7, 2023, and July 27, 2023. \n            3.    Claimant’s average weekly wages are $451.97 and $450.07. \n            4.   The respondents have controverted the claim in its entirety. \n By agreement of the parties, the issues to be litigated and resolved at the forthcoming hearing \nwere limited to the following: \n\nDavis-H303915 & H305142 \n2 \n \n            1.     Whether claimant sustained a compensable injury to his right upper extremity on June 7, \n2023. \n            2.     Whether claimant sustained a compensable injury to his left upper extremity on July 27. \n2023. \n            3.     If compensable, whether claimant is entitled to medical treatment. \n             4.    If compensable, whether claimant is entitled to temporary total disability benefits. \n All other issues are reserved by the parties. \n The claimant contends that “On June 7, 2023 [H303915] right hand sore while cleaning stove, \nnext day swollen, pain moved up arm, given braces, moved to shoulder, told carpel tunnel then tendon \nupper arm. On July 7, 2023 [H305142] direct result of brace on right hand sharp pains in left elbow – \ntennis elbow.” \n The respondents contend that “The claimant reported on June 15, 2023, having an injury to \nhis right hand on June 7, 2023 [H303915] and medical treatment was initially provided by respondent \nfor the claimant. The claimant subsequently reported on August 2, 2023, having an injury to his left \nhand  on  July  27,  2023  [H305142]  after  which  respondent  provided  claimant  with  initial  medical \ntreatment. The claimant has been examined by physicians and provided an EMG nerve conduction \nstudy, which was normal. When the claimant was seen by Dr. Mark Tait, orthopedic hand surgeon, \non August 16, 2023, the claimant was released at maximum medical improvement with 0% permanent \nimpairment  and  released  to  full  duty  with  no  restrictions.  Respondent  contends  that  the  claimant \ncannot meet his burden of proving that he sustained a compensable specific incident injury or gradual \nonset injury arising out of and in the course of his employment caused by both rapid and repetitive \nmotion to either hand on either June 7, 2023, or July 27, 2023. Respondent further contends that the \nclaimant cannot establish that his alleged injury is the major cause of disability or need for treatment. \n\nDavis-H303915 & H305142 \n3 \n \nRespondent contends that if the claimant’s claim was compensable, the respondent cannot be \nresponsible for disability, medical, or other benefits prior to receipt of the employee’s report of injury. \nThe respondent reserves the right to raise additional contentions, or to modify those stated herein, \npending the completion of discovery.”  \n From a review of the entire record including medical reports, documents, and other matters \nproperly  before  the  Commission,  and  having  had  an  opportunity  to  hear  the  testimony  of  the \nwitnesses and to observe their demeanor, the following findings of fact and conclusions of law are \nmade in accordance with A.C.A. §11-9-704: \n \n  FINDINGS OF FACT & CONCLUSIONS OF LAW \n \n 1.      The  stipulations  agreed  to  by  the  parties  at  a  pre-hearing  conference  conducted  on \nFebruary 22, 2024 and contained in a pre-hearing order filed that same date are hereby accepted as \nfact. \n 2.   Claimant  has  failed  to  prove  by  a  preponderance  of  the  evidence  that  he  suffered  a \ncompensable injury to his right upper extremity on July 7, 2023. \n 3.    Claimant has failed to prove that he suffered a gradual injury to his left upper extremity \ndue  to  rapid  repetitive  motion  on  or  about  July  27,  2023,  or  as  a natural  consequence  from  a \ncompensable injury to his right upper extremity.  \n \n FACTUAL BACKGROUND \n Claimant maintained he had two separate injuries, one to his right upper extremity which led \nto an injury to his left upper extremity due to overuse. These two cases were consolidated for trial, as \nthere were overlapping factual issues and medical records that mentioned both injuries. The parties \nagreed to this consolidation in the prehearing conference (Commission X 1).   \n\nDavis-H303915 & H305142 \n \n4 \n \n \n There  was  some  testimony  regarding  when  claimant  reported  the  injury;  however, claimant \ndid not seek reimbursement for the one doctor’s visit he had before a report was made,  nor  did \nrespondent raise a delayed report as a defense to this matter. As such, I did not find it necessary to \ndetermine if claimant was entitled to any benefits prior to June 15, 2023, the date of the Employee’s \nReport of Injury Form (R.NMX.5) \nHEARING TESTIMONY \n \n Claimant testified that he first injured his right hand while working as a custodian at Arkansas \nTech. On June 7, 2023, he was cleaning a stove in an apartment, and something did not feel right in \nhis hand. Claimant noticed the next day the hand was swollen, but he already had a doctor’s \nappointment for high blood pressure coming up, so he did not immediately seek medical treatment. \nWhen he went to his regular doctor’s appointment on June 15, 2023, he mentioned his hand and was \ntold that it might be carpal tunnel. When claimant returned to work that day, he told his supervisor, \nStacey  Cox,  that  he  had  hurt  his  hand,  after  which  he  was  referred  to  the Conservative Care \nOccupational Clinic on June 16, 2023. Claimant was seen by APRN Dalana Rice and was given a brace \nto wear on his right hand; claimant stated that he was told to wear the brace constantly except when \nhe was in the shower.  \n Regarding his claim for his left hand on July 27, 2023, claimant said that he was using his left \narm more as he was cleaning the apartments and his elbow and wrist started popping and hurting in \nthat  left  arm.  He  returned  to  see APRN Dalana  Rice  and  was  given  a  brace  for  his  left  arm,  an \nappointment was made for claimant to be evaluated for carpal tunnel, and that test was performed on \nJuly 31, 2023, by Dr. Miles Johnson.  \n Claimant said he was referred to physical therapy but was having to use his “comp time” at \nwork to go to doctor’s visits for physical therapy. He continued to use both arms at work until August \n\nDavis-H303915 & H305142 \n \n5 \n \n \n2, 2023, at  which  time  he  was  placed  on  restrictions. There  was  apparently  a  problem  in \ncommunicating the restrictions to claimant’s supervisor because it was a few days before his lifting \nrestrictions  were  recognized  by  respondent. Claimant  said  he  was  off  work  for  eight  working  days \nbecause there was no light duty for him to do.  Claimant was then seen by Dr. Mark Tait. Following \nthat visit on August 16, 2023, respondent determined it was going to deny the claim as of August 24, \n2023. Claimant  testified  he  had  no additional  medical  treatment  since  the  claim  was  denied by \nrespondent, as he could not afford the physical therapy out of his pocket. Claimant returned to work \nfor respondents until September 15, 2023, at which time the work without restrictions became too \nmuch for him and he left his employment. Claimant requested temporary total disability benefits from \nSeptember 15 through January 1, 2024. \n On cross-examination, claimant said that it was a repetitive injury that happened over a period \nof time, but that he was not having any problems with his right hand before June 7, 2023. He had \npreviously been treated for an infection in that hand and he had an injury to the middle finger of his \nright  hand  when  it  was  stuck  in  a  shackle  while  working  for  Tyson.  Claimant  explained  that  some \nmedical records from 2019 which mentioned bilateral hand swelling was due to blood pressure issues. \nClaimant said his issues were different after June 7, 2023, because he believed that he had soft tissue \ndamage from repetitive  use  at  Arkansas  Tech  and  was  not  properly  trained  on  safety  regarding \nrepetitive motion.  \n Claimant  was  asked  about  the  entry  on  the  June  15, 2023, record  from  Kirkland  Family \nMedical Center (R.X.1 page 14) which stated “patient c/o right hand pain not better, reports he spoke \nto Brittney Calvert, PA about this last visit. He rates the pan 5/10 and states it gets worse with use, he \nis having numbness in that now. Has nerve conduction studies planned with neurologist next month.”  \nClaimant  said  the  previous  complaint  was  about  the  cyst  and  the  nerve  conduction  study  was  for \n\nDavis-H303915 & H305142 \n \n6 \n \n \nneuropathy in his feet. Claimant said that he had a nerve conduction study performed by Dr. Miles \nJohnson in Fort Smith on July 31, 2023, but did not know why it was done on both hands. As he had \ntestified under  direct  examination,  claimant stated that  the  appointment  with  Kirkland  on  June  15, \n2023, was one that was regularly scheduled for his blood pressure, and he asked about his hand while \nhe was there because he thought it was probably just sore. He did not know there was a problem with \nhis hand at that time other than the soreness. After the nerve conduction study, claimant was sent to \nDr.  Mark  Tait. Claimant was not impressed with Dr. Tait’s examination, stating “He did not seem \ninterested in anything. He tried to diagnose a soft tissue pain with an x-ray machine.”   Dr. Tait had \nordered  a  course  of  physical  therapy  for  claimant  after  the  visit with Dr.  Tait,  the  respondent \ndetermined that it was going to controvert this claim, and claimant was not able to continue with his \nphysical therapy treatment because Dr. Tait released claimant with no restrictions on August 16, 2023.  \n After claimant rested, Stacy Cox, who was claimant’s direct supervisor, testified as to claimant’s \njob duties consisting of scrubbing showers, vacuuming, mopping floors, dusting, cleaning glass in the \ndoorways and entrances. She said that there were a variety of different job duties, but they were all \nrelated to cleaning. She recounted how she learned that claimant stated he hurt himself on the job. \nMs. Cox testified to the production of some of the records that were offered by respondents as its \nExhibit 2 at the hearing.  \n On cross-examination, Ms. Cox explained how employees were instructed to make workers’ \ncompensation claims.  Ms. Cox did not recall a luncheon in which claimant had his hand wrapped in \nearly June 2023.  \n Respondents next called Julie Ennis who is the custodial director and the supervisor of Stacy \nCox. She said those cleaning an apartment were expected to do two or three units a day, but if one \nwas not finished at the end of the workday, it would be done the next day. Claimant identified portions \n\nDavis-H303915 & H305142 \n \n7 \n \n \nof Respondent’s Exhibit #2, including one that she filled out when she spoke with claimant on June \n15, 2023. Ms. Ennis testified that June 15, 2023, was the date that she first knew that he was making \na workers’ compensation claim. Ms. Ennis was not positive if she handed the Employer’s Report of \nInjury Form to claimant or if Stacey Cox gave it to him. \n In rebuttal, claimant testified that when he got back from his June 15, 2023, appointment with \nKirkland, he told Stacey Cox that he had carpal tunnel and needed to find out how to file a workers’ \ncompensation  claim. Claimant  denies  that  he  was  handed  the  document  that  Ms.  Ennis  identified, \nstating that he was given one by “the safety guy.”   \n After claimant rested, the court had the following exchange with claimant: \nQ. (By the Court) In your claim, the way that we wrote it up in the prehearing \norder, you were alleging and your testimony was that you were working on a \nstove  on  June 7  and you felt  something  happen  to  your hand,  but  part  of \nyour testimony and the form you filled out on June 15, this is Respondent’s \n2 Document  5,  says  that  it  is  repetitive  work,  repetitive  cleaning  and \nscrubbing. \nYou may not be  aware of this, but there is a significance in workers’ \ncompensation for either a gradual onset injury or a specific incident injury. I \nneed to know what you are claiming. Are you claiming a specific incident or \nare you claiming a gradual onset? \n \nA. (By Mr. Davis) I got that word from the doctor they sent me to. That’s \nhow I know that word. \n \nQ. (The Court) I am just asking you what your claim is. Are you claiming a \nspecific  incident  in  cleaning  the  stove  on  June  7 regarding  your  right  arm \ninjury or are you claiming as it says in the form on page 5 a repetitive injury, \nwhich would be a gradual onset? I am not telling you what your claim is. I \nam asking you what your claim is. \n \nA. (Mr. Davis) I am claiming a specific injury. \n \nQ. (The Court) Okay. That is for the June 7 injury. Now are you claiming – \non your left hand or are you claiming a specific incident or are you claiming \na gradual onset on it? \n \nA. (Mr. Davis) Gradual. \n\nDavis-H303915 & H305142 \n \n8 \n \n \n \nQ. (The Court) Gradual on the left? \nA. (Mr. Davis) Yes. \n \nREVIEW OF THE EXHIBITS \n \n Claimant did not introduce any medical records. Prior to the hearing, he had been advised as \nto the records that respondents’ counsel was going to offer into evidence, and he relied upon those \nduring his testimony. Claimant objected to the first ten pages of the respondents’ medical records as \nbeing irrelevant. I overruled the objection because the records related to the same part of claimant’s \nbody that he maintains is now injured as a result of work-related activity. However, while relevant, I \nfind those records were related to a finger injury from 2011 (R.X.1 pages 1-3) and provide no useful \ninformation for the determination of this claim. \n The records from January 27, 2019, from St. Mary’s Hospital involved pain in claimant’s right \nwrist. The next day, he followed up with his healthcare provider at Kirkland Family Medical Clinic \nwith this entry at the history of present illness: \n“Thirty-year-old  male  presents  unaccompanied  today  for  a  follow  up  after \ngoing  to  the emergency  room  at  SMRMC  on  Saturday  due  to  bilateral  hand \nswelling. He  states  he  woke  up  with  his  hands swelling. Denies  any  recent \ninjuries. Denies any swelling to lower extremities. He was given Naproxen 500 \nmg bid and states his hands are better, reports that swelling has subsided, has \nbetter strength and grip. He was put on light duty but patient is here to get a \nwork  release  so  he  can return  to  work  without  restrictions,  no  other \ncomplaints.”   \n \n There were no other entries regarding this incident (R.X. pages 4-5). \n On January 16, 2023, claimant saw PA Brittany Calvert at Kirkland for “follow up with weight \nloss and knot right hand...has  knot  on  right palm  and  right  hand  locks  up at  times  when  gripping \nthings...”  PA Calvert examined claimant’s right hand, and she reported “no tenderness, no warmth, \nor objective synovitis and trigger finger.”  For the pain in his right hand, claimant received an injection \n\nDavis-H303915 & H305142 \n \n9 \n \n \nof Ketorolac and was told to return for follow up in four weeks, or sooner if the symptoms worsened \nor new symptoms arose. (R.X. pages 6-10).  \n Claimant returned to Kirkland on June 16, 2023, and was seen by APRN Tanna Shockley. He \nsaid that the pain in his right hand was not better, and that he had spoken to Brittany Calvert about \nthis on his last visit (which was in January 2023, as recounted in the above paragraph). Claimant said \nthe  pain  got  worse  with  use  and he was  having  numbness  in  that  hand  now.    There  was  a  nerve \nconduction study planned with a neurologist in July 2023. APRN Shockley concluded that claimant \nwas suffering from carpal tunnel syndrome of the right wrist.  She had claimant wear a splint on his \nright arm and stated he should proceed with the nerve conduction studies with the neurologist next \nmonth. (R.X. pages 11-15) \n Claimant returned to work and reported a work-related injury after seeing APRN Shockley on \nJune 15, 2023; the next day he was sent to Conservative Care Occupational Health, a medical provider \nselected by respondent.   On June 16, 2023, claimant described the accident as follows:  \n“Patient states on 6-7-23 his right hand was sore while cleaning a stove. He \nsaid  the  next  day  it  was  swollen.  He  went  to  see  PCP  yesterday  and  was \ndiagnosed with carpal tunnel. Ordered brace. Has had tingling in hands since. \nTingling is in the last two fingers. Swelling was in base of hand next to wrist. \nUnable to grab anything small. Taking Ibuprofen and wrapped with an Ace \nbandage. Did help with swelling and pain.”   \n \n APRN Dalana Rice did an examination of claimant’s right hand and noted that there was no \nswelling or bruising present, nor an abrasion or erythema. She noted some subjective findings such as \ndecreased grip strength and pincher grasp as well as noting that claimant reported that palpation in \nthe fourth metacarpal nodule was painful. Claimant also reported pain to palpation over the medial \nhand’s dorsal surface as well as pain with motion in his hand.  APRN Rice disagreed that claimant had \ncarpal tunnel syndrome, as the numbness was in his fourth and fifth fingers which would be consistent \n\nDavis-H303915 & H305142 \n \n10 \n \n \nwith cubital tunnel syndrome. She suggested the “usual course of treatment” which is splinting along \nwith ice and NSAIDs. APRN Rice determined that the splint was appropriate for the symptoms, told \nhim to take naproxen every twelve hours, and apply ice for fifteen minutes at least twice a day. There \nwere no work restrictions given at that time, but she did recommend that claimant use his left hand \nfor repetitive motion duties. Claimant was released to regular duty and was told to return in two weeks. \n(R.X. pages 16-22) \n Claimant returned to Conservative Care Occupational Health on June 30, 2023, and again saw \nAPRN Rice. The patient’s description of the accident was copied from the previous medical record, \nand claimant’s complaint was that his right hand was tingling, numb, and sore. APRN Rice  stated, \n(and I believe inaccurately) that the problem began on June 15, 2023. Her entry as to the examination \nof the right hand is largely identical to the previous entry, although she did add that claimant reported \npain with gripping and repeated tingling in the fourth and fifth fingers. She recommended that the \ncurrent treatment measures continue, and that claimant’s recommended work status remain at regular \nduty. (R.X. pages 23-25) \n Claimant returned to Conservative Care Occupational Health on July 7, 2023, this time seeing \nAPRN Cynthia Johnson. Her report did not contain any objective findings, nor did she restrict his \nactivity at work. She referred him for a nerve conduction velocity study. (R.X. pages 28-33) \n Claimant returned to his primary care provider on July 31, 2023, where he saw PA-C Brittney \nCalvert, and at that point he is complaining of problems with his left elbow and thumb. PA-C Calvert \nsuspected  that  the  problem  in  the  left  hand  was  secondary  to  overuse  but  there  were  no  objective \nfindings in her report. She noted that claimant was due for a nerve conduction study on his right wrist \nlater that day (R.X. pages 34-38).  \n Claimant was seen by Dr. Miles Johnson at Northwest Arkansas EMG Clinic on July 31, 2023. \n\nDavis-H303915 & H305142 \n \n11 \n \n \nThe history of the present illness as recorded by Dr. Johnson was that claimant had pain in the right \nmedial elbow and had been noticing problems in the left upper extremities. He had been referred by \nAPRN  Cynthia  Johnson  for  electrodiagnostic  testing  on  the  bilateral  upper  extremities. After \nperforming  some  physical  examinations  including  several  tests  which are  subjective  in  nature,  Dr. \nJohnson performed an EMG/NCS test to determine peripheral nerve involvement. The summary of \nthe test was:  \n“Bilateral  medial  and ulnar motor  studies  are  normal. Bilateral  median ulnar \northodromic sensory latency difference is normal. Radial sensory response is \nnormal  bilaterally. EMG  examination  of  the  bilateral  upper  extremities is \nwithin normal limits.”  His assessment was “normal electrode diagnostic study \nof the bilateral upper extremities. There is no electrodiagnostic evidence of a \nradiculopathy,  plexopathy,  generalized  peripheral  neuropathy  or  peripheral \nnerve entrapment syndrome or injury.”  (R.X. pages 39-43) \n \n Following  the EMG/NCV study,  claimant  returned  to  see  APRN  Delana  Rice  at the \nConservative  Care  Occupational  Health  Clinic  on  August  2,  2023. The  results  of  the  exam  were \nexplained  to  claimant,  which indicated  no carpal  or  cubital  tunnel  syndrome  and  no  radiculopathy. \nAPRN  Rice  believed  that  claimant  would  benefit  from  physical therapy  and referred  him  to River \nValley Therapy for such. APRN Rice restricted claimant to lifting ten pounds or less and no forced \ngripping for more than five seconds or repetitive motion work with either hand. (R.X pages 44-51). \n Claimant returned to Conservative Care Occupational Health on August 9, 2023, and again \nsaw APRN Delana Rice. An x-ray of the left thumb was ordered and was normal in that there were \nno fractures or abnormalities noted. APRN Rice determined that claimant should be referred to an \northopedic  doctor  to  evaluate  and  treat  the  left  thumb  and  elbow. After  this  visit,  claimant  was  to \nreturn to regular duty; however, use of his left hand and elbow were restricted to no lifting over five \npounds, no forced gripping and no repetitive motion work. (R.X 52-56) \n On August 14, 2023, claimant had his initial evaluation for physical therapy. The chart from \n\nDavis-H303915 & H305142 \n \n12 \n \n \nRiver Valley Therapy Sports Medicine was primarily a recitation of claimant’s complaints and I saw \nno  objective  findings  in  the  report by Scott  Bailey,  the  occupational  therapist, who worked  with \nclaimant  (R.X  pages  57-58). On  August  16,  2023, claimant  returned  to  see Mr.  Bailey  and  received \nconservative treatment; it was noted that he had an orthopedic appointment that day and no additional \ntherapy was added to his plan of care.  \n On August 16, 2023 claimant had his initial visit with Dr. Mark Tait, a hand surgeon, at the \nUAMS  Orthro  Clinic.    Dr. Tait  reviewed  the  past  medical  history  that  had  been  recorded  in  the \nelectronic medical records; there is no indication as to how extensive these records were. During the \nphysical examination, claimant showed some mild tenderness over the lateral epicondyle that was very \nmild. There was also some mild tenderness of the CMC joint and thenar muscles. Dr. Tait’s impression \nwas that claimant had bilateral mild lateral epicondylitis.  In the discussion and plan, Dr. Tait recorded:  \n                      “I discussed with the patient today, regarding the non-operative interventions \nmoving forward. I see no indication for operative interventions. At this point \nand  time,  he  will  receive  occupation  therapy  for  two  more  visits  and  will \ntransition him to a home program for treatment of the mild tennis elbow and \nCMC synovitis. I discussed with the patient that he won’t feel some symptoms, \nreassured him I see no signs of pathology that will require surgical intervention. \nHe can proceed with unrestricted lifting and gripping with both hands. He will \nbrace as   needed. I   feel   this   patient   has   reached   maximum   medical \nimprovement.”  \n                      (R.X. pages 60-62)   \n \n Dr. Tait then did a “To Whom it May Concern” as follows: “It is my medical opinion that Mr. \nJoey Davis may return to work without any restrictions regarding right hand.”  \n Between the time that Dr. Tait opined that the claimant needed no further treatment and the \ntime that respondents decided to controvert this claim, claimant returned to River Valley Therapy for \nthree  more  sessions of  physical  therapy  (August  21,  23,  25). These  records  contain  claimant’s \nsubjective reports as to how he is progressing, but there are no objective findings in any of these three \n\nDavis-H303915 & H305142 \n \n13 \n \n \nreports. \n Based on Dr. Tait’s findings, respondents determined on August 24, 2023, that it would no \nlonger recognize this as a compensable claim. \nDOCUMENTARY EVIDENCE \n Respondents  submitted twenty  pages  of  documentary  evidence. Many of these  are not \nparticularly  pertinent  to  the  decision in this  case. Claimant’s Report of Injury Form is referenced \nbelow. On August 24, 2023, that there was a letter to claimant denying his claim and on August 25, \n2023, a request for a change of physicians was denied by the Medical Cost Containment Division of \nthe Arkansas Workers’ Compensation Commission (R.NM. pages 2, 13, 14). On September 1, 2023, \nMr. Robert Montgomery, the Managing Attorney of the Public Employee Claims Division, wrote a \nletter to claimant explaining that his claim was denied due to no objective medical evidence of injury \nto either claimant’s right upper extremity or left upper extremity.  \n \nADJUDICATION \n \n \nA. Claim for a right upper extremity injury. \n Because the Employee’s Report of Injury Form (R. NM. 5) attributed this injury as “repetitive \ncleaning and scrubbing,” I requested that claimant clarify his claim. As recited above, he maintained \nit was a specific injury to his right arm on June 7, 2023, while engaged in employment activity. He \nwas definite that nothing was wrong with his right arm before that date (T. 44).  \n To  prove  a  compensable  injury  for  a  specific  injury,  the  claimant  must  establish  by  a \npreponderance of the evidence: (1) an injury arising out of and in the course of employment; (2) that \nthe injury caused internal or external harm to the body which required medical services or resulted \nin disability or death; (3) medical evidence supported by objective findings, as defined in Ark. Code \n\nDavis-H303915 & H305142 \n \n14 \n \n \nAnn. § 11-9-102(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  the \nrequirements for establishing the compensability of the claim, compensation must be denied. Mikel \nv. Engineered Specialty Plastics, 56 Ark. App. 126, 938 S.W.2d 876 (1997).  \n Based on the medical records from Kirkland, I cannot find that claimant met his burden of \nproof that his injury arose from the course of his employment. He complained of an issue with his \nright hand during his examination on January 16, 2023. When he returned to Kirkland on June 15, \n2023,  he  made  no  mention  of  a  specific  incident  the  week  before  at  work,  but  rather  related  the \nproblem back to what he had reported in January 2023. It is also curious that claimant told APRN \nShockley about a  nerve  conduction study that had  already  been  planned  with  a  neurologist  in  July \n2023; were it related to this injury, it would have had to have been scheduled between June 7, 2023, \nand June 15, 2023.  No records from a neurologist—including a verification that an appointment had \nbeen scheduled after June 7, 2023—were submitted. Viewing all the evidence before me, the records \nindicate  this  was  a  problem  that  existed  before  June  7,  2023,  and  was  not  caused  in  the  manner \nclaimant alleged.  \n Further, the medical records do not show an objective finding of an issue with claimant’s right \narm. The EMG/NCV test was normal, as was the x-ray performed by Dr. Tait. Even conceding for \nthe sake of argument that claimant had something wrong in his right arm, there are no medical records \nto support anything other than “bilateral mild lateral epicondylitis” (R.X. 60) and “bilateral mild CMC \nsynovitis (R.X. 61); both of those diagnoses were due to claimant’s report of tenderness, which are \nsubjective findings, not the objective findings required by Ark. Code Ann. § 11-9-102(16).   \n Thus, as claimant complained of issues with his right hand that had nothing to do with his \nemployment in January 2023, did not mention anything about an injury at work when he was seen at \n\nDavis-H303915 & H305142 \n \n15 \n \n \nKirkland on June 15, 2023, and because he failed to provide sufficient medical evidence of an objective \nfinding on his right upper extremity, he has not met his burden of proof on that issue. \n \n B. Claim for a left upper extremity injury. \n After both sides rested, I asked claimant to be specific about what he was claiming as far as \nthe injury to his left arm. The Prehearing Order said simply “On July 27, 2023, direct result of brace \non right hand, sharp pains in left elbow—tennis elbow.”   His testimony clarified that he believed that \nhe suffered a gradual onset injury due to overuse of his left hand because of the restricted use of his \nright arm, and did not attribute the issue with his left arm to be related to a specific incident.  \n  To be awarded benefits for a gradual onset injury, the claimant must prove several things: (1) \nthe  injury  arose  out  of  and  in  the  course  of  employment;  (2)  the  injury  caused  internal  or  external \nphysical harm to the body, which required medical services or resulted in death or disability; (3) the \ninjury was caused by rapid repetitive motion; (4) the injury was the major cause of the disability or \nneed for treatment; and (5) the injury was established by objective medical findings. A.C.A. § 11-9-\n102(4)(D); Malone v. Texarkana Public Schools, 333 Ark. 343, 969 S.W. 2d 644 (1998) and Hapney v. Rheem \nMfg. Co. 342 Ark. 11, 26 S.W.3d 777 (2000). Arkansas courts have set out a two-pronged test for such \ncases  as  the  matter  at  bar.  The  claimant  must  engage  in  tasks  that  are  repetitive  and  the  repetitive \nmotion must be rapid, Malone, supra. \n Claimant’s testimony fails to support that he engaged in rapid repetitive motions during his \ncustodial work. While claimant did not give a recitation of his job duties, during his testimony he told \nof cleaning toilets and stoves, wiping countertops, and scrubbing bathtubs. None of this kind of work \nqualifies as “rapid repetitive motion” activities.  \n However, that finding does not end the examination of the claim for a left arm injury. When \n\nDavis-H303915 & H305142 \n \n16 \n \n \na  worker  sustains  a  compensable  injury,  then  every  natural  consequence  of  that  injury  is  also \ncompensable, Hubley v. Best Western Governor's Inn, 52 Ark. App. 226, 916 S.W.143 (1996). The basic \nissue is whether there is a casual connection between the initial injury and the alleged consequential \ncondition. Jeter v. B.R. McGinty Mechanical, 62 Ark. App. 53, 968 S.W.2d 645 (1998). It is not hard to \nunderstand how working with restrictions on one hand could cause overuse on the other. However, \nthere is the necessity of proving a compensable injury—in this case, to claimant’s right hand—before  \na subsequent injury may be a natural consequence from that compensable injury. Failing to establish \nthe issues with the right upper extremity was a compensable injury means that his claim for his left \nupper extremity must be denied on that basis as well as the failure to prove a gradual onset injury.   \n \nORDER \n \n For  the reasons  set  out  above,  claimant  has  failed  to  meet  his burden  of  proving  by  a \npreponderance of the evidence that he suffered a compensable injury on June 7, 2023 and has also \nfailed to meet his burden of proof by a preponderance of the evidence that he suffered a compensable \ngradual-onset  injury  on  or  about  July 27,  2023.  Therefore,  his claim  for  compensation  benefits  is \nhereby denied and dismissed. \n Respondent is responsible for paying the court reporter her charges of $858.00 for preparation \nof the hearing transcript. \n \n IT IS SO ORDERED. \n \n \n                                                                                              \n_______     \n JOSEPH C. SELF \nADMINISTRATIVE LAW JUDGE","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H303915 & H305142 JOEY DAVIS, EMPLOYEE CLAIMANT ARKANSAS TECH UNIVERSITY, EMPLOYER RESPONDENT PUBLIC EMPLOYEE CLAIMS DIVISION, CARRIER RESPONDENT OPINION FILED MAY 2, 2024 Hearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Russellville, Pope County, ...","fetched_at":"2026-05-19T22:53:41.052Z","links":{"html":"/opinions/alj-H303915-2024-05-02","pdf":"https://www.labor.arkansas.gov/wp-content/uploads/DAVIS_JOEY_H303915H305142_20240502.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}