{"id":"alj-H304280-2024-03-05","awcc_number":"H304280","decision_date":"2024-03-05","opinion_type":"alj","claimant_name":"Larry Zintel","employer_name":"Pulaski County Road & Bridge","title":"ZINTEL VS. PULASKI COUNTY ROAD & BRIDGE AWCC# H304280 MARCH 5, 2024","outcome":"granted","outcome_keywords":["granted:1"],"injury_keywords":["back","lumbar","neck","shoulder","hip","cervical","strain"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/ZINTEL_LARRY_H304280_20240305.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"ZINTEL_LARRY_H304280_20240305.pdf","text_length":40319,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H304280 \n \nLARRY M. ZINTEL, \nEMPLOYEE                                                       CLAIMANT \n \nPULASKI COUNTY ROAD & BRIDGE, \nEMPLOYER                                                                              RESPONDENT \n \nAAC RISK MG’T SERVICES, \nCARRIER/TPA                                                                                 RESPONDENT \n \n \nOPINION FILED MARCH 5, 2024 \n \nHearing conducted before the Arkansas Workers’ Compensation Commission (the Commission), \nAdministrative  Law  Judge  (ALJ)  Mike  Pickens,  on  December  6,  2023, in  Little  Rock,  Pulaski \nCounty, Arkansas. \n \nThe  claimant  was  represented  by  the  Honorable Mark  Alan  Peoples,  Peoples  Law  Firm,  Little \nRock, Pulaski County, Arkansas. \n \nThe  respondents  were  represented  by  the  Honorable  Melissa  Wood,  Worley,  Wood  &  Parrish, \nLittle Rock, Pulaski County, Arkansas.     \n \nINTRODUCTION \n In  the  prehearing  order  filed  October  31,  2024,  the  parties  agreed  to  the  following \nstipulations, which they affirmed on the record at the hearing.  \n1. The Commission has jurisdiction over this claim. \n2. The employee-employer-carrier relationship existed at all relevant times including \non January 18, 2022, when the claimant alleges he sustained a compensable injury \nto his lower back/lumbar spine \n \n 3.    The claimant earned an average weekly wage of $744.40, which entitles him to \n            weekly indemnity rates of $496.00 for temporary total disability (TTD), and \n             $372.00 for permanent partial disability (PPD) if the claim is deemed compensable. \n \n4. The respondents have controverted this claim in its entirety.   \n \n5. The  parties  reserve  any  and  all  other  issues  not  litigated  herein  for  future \ndetermination and/or litigation. \n\nLarry Zintel, AWCC No. H304280 \n \n \n \n2 \n   \n(Commission Exhibit 1 at 2; Reporter’s Transcript at 6; 59). Pursuant to the parties’ mutual \nagreement, the issues litigated at the hearing were: \n1.  Whether the claimant sustained a compensable injury to his lower back/lumbar \n   spine on January 18, 2022. \n \n2.  If the claimant’s alleged lower back/lumbar spine injury is deemed compensable, \n    the extent to which he is entitled to medical benefits, and to TTD benefits beginning \n      on January 19, 2022, and continuing through a date yet to be determined. \n \n3.    Whether the claimant’s attorney is entitled to a controverted attorney’s fee on these \n   facts. \n \n(Comms’n Ex. 1 at 2; T. 6; 59) \n \n The claimant contends that on January 18, 2022, he sustained a compensable injury to his \nlower back/lumbar spine when he was involved in a motor vehicle accident (MVA) while in the \ncourse and scope of his employment. He contends he is entitled to medical treatment, and related \nexpenses; to TTD from the date of the injury through a future date yet to be determined, as well \nas to a controverted attorney’s fee. (See, Claimant’s Prehearing Questionnaire Response  filed \nOctober 9, 2023; and Claimant’s Post-Hearing Response Brief). \n First,  the  respondents  contend  the  claimant  was  not  engaged  in  the  performance  of \n“employment services” at the time of his alleged lower back/lumbar spine injury and, therefore, \nthe  injury  cannot  be  deemed  “compensable”  within  the  Act’s  meaning.  Alternatively,  the \nrespondents contend the claimant did not sustain a compensable injury on January 18, 2022, since \nthere exist no objective findings of any traumatic injury in the relevant medical records. Third, the \nrespondents  contend  that  even  if  his  alleged  lower  back/lumbar  spine  injury  is  deemed \ncompensable, the  claimant’s  treating  physician  opined  he  reached  maximum  medical \nimprovement (MMI) on April 12, 2022, and, therefore, he is not entitled to any TTD benefits after \n\nLarry Zintel, AWCC No. H304280 \n \n \n \n3 \nthis date. (See, Respondents’ Prehearing Questionnaire Response filed September 18, 2023; and \nthe Respondents’ Post-Hearing Brief). \n The  record  herein  consists  of  the  hearing  transcript  and  any  and  all  exhibits  contained \ntherein and attached thereto, as well as the parties’ prehearing questionnaire responses cited supra, \nand the parties’ post-hearing briefs and any and all responses and/or replies thereto, all of which \nhave been blue-backed and hereby made a part of the hearing record. The record specifically does \nnot include the PCRB holiday work schedule Internet/website link cited on page 2 of the claimant’s \npost-hearing brief; however, the ALJ does take administrative/judicial notice that the day before \nthe  subject  accident,  Monday,  January  17,  2022,  was  both  a  state  and  federal  holiday,  namely \nMartin Luther King, Jr. Day. \nSTATEMENT OF THE CASE \n The  claimant,  Mr.  Larry  Zintel  (the  claimant),  is  45  years  old.  He  worked  for  Pulaski \nCounty Road & Bridge (PCRB) as a senior operator for about nine (9) years and six (6) months, \nwhich he testified is a position similar to a crew chief. (T. 11-12). In addition to his supervisory \nduties,  the  claimant  described  his  job  as  a  senior  operator  as  physically  demanding  since  it \ninvolved, “shoveling asphalt, raking asphalt and rock, raking what we call  Class  7  SB-2,  jack-\nhammering-out a hole in the road to put asphalt into it, anything from climbing up on equipment \nto run it, to being on top of chip box giving hand signals for a driver to dump chips into it so we \ncan resurface the road with chip.” (T. 11-13; 22-23). His working hours were from 7 a.m. to 5:30 \np.m., Monday through Thursday. The claimant testified that on occasion he would get called into \nwork outside of his scheduled hours at any time of the day or night, for example when there was \ninclement weather, icy roads, storms, and similar incidents in order to sand and clear the roads. (T. \n12-13; 23).          \n\nLarry Zintel, AWCC No. H304280 \n \n \n \n4 \n On the morning of January 18, 2022, the claimant testified he was on his way to work when \nhe was involved in an MVA. He testified under oath he received a call from his supervisor, foreman \nGary Ellis (whose name is actually Gary Ellison), at about 6:20 a.m. instructing him to drive by \nand  pick  up  a  co-worker  named  David  Jones,  who  needed  a  ride  to  work.  (T.  11-14;  24;  38). \nSpecifically, the claimant testified:   \nI was driving in to work, my phone rang. I was it was Forman Gary [Ellison], and \nI went to reach for it and couldn’t reach it, so I had to pull over, get my phone. I \nanswered it and Gary was instructing me I need to go pick up David Jones because \nhis ride was not able to come in to work.   \n \n(T. 13) (Bracketed material added). The claimant testified it was not his understanding Foreman \nEllison was asking him to perform a personal favor. (Id). The claimant testified, “I took it as he \nneeded me to go pick up a fellow employee on my was in to work and bring him to work, which, \nin turn, I’d have to drive past the job, go pick him up and come back.” (Tr. 14). The claimant did \nnot believe he had a choice as to whether he could agree or refuse to pick up Mr. Jones. (Id). \n The claimant further testified he talked to Mr. David Jones that morning to let him know \nhe was on his way to pick him up. (T. 26). The claimant said he took Foreman Jones’s instruction \nto retrieve Mr. Jones and bring him to work as a directive from his supervisor and, again, he did \nnot believe he had a choice as to whether he could make his own decision as to whether to pick up \nMr. Jones. (T.13-14).   \n The claimant explained that in order to pick up Mr. Jones he had to drive past the PCRB \noffice. (T. 25). He was about two (2) miles away from Mr. Jones’s house when he was involved \nin  the  MVA.  (T.  14-15;  26).  The  claimant  testified  under  oath  he  agreed  the  police  report \nintroduced at the hearing accurately reflects how the accident happened and that the Emergency \n\nLarry Zintel, AWCC No. H304280 \n \n \n \n5 \nMedical Services ambulance (EMS, or the ambulance) arrived at the accident scene at 6:44 a.m., \nbut testified the ambulance did not transport him anywhere. (T. 31). He further testified the police \nreport  further  reflects  he  advised  the  officer  he  had  sustained  no  injuries  in  the  MVA,  and  he \nadmitted that is what the told the officer because, “That’s how I felt at the time.” (Claimant’s \nExhibit 2 at 11; T. 31-32).   \n Scott Seymour, the PCBR asphalt superintendent, testified under oath at the hearing on the \nrespondents’ behalf.  He  testified  he  usually  arrives  at  work  at  around  6:25  a.m.  (T.  34).  He \nexplained that on the morning of January 18\nth\n, 2022, he got a call from Mr. Zintel at about 6:35 \na.m. or 6:40 a.m., who told him he had been involved in a bad accident on Roosevelt Road. Mr. \nSeymour testified he did not instruct the claimant to pick up David Jones nor, to his knowledge, \ndid anyone else in management instruct the claimant to do so. (T. 35).  Gary Ellison (whom the \nclaimant referred to in his testimony as “Gary Ellis”) was terminated for calling another employee \na racial slur, and he would consider him to be a “disgruntled” employee. (T. 38). Mr. Ellison did \nnot testify at the hearing. \n David  Jones,  who  is  a  PCRB  construction  worker,  testified  he  usually  had  a  co-worker \nnamed Michael Needham take him to work. (T. 41-42). Mr. Jones testified he was the one who \nasked the claimant to give him a ride to work because Mr. Needham was off work. (T. 42-43). Mr. \nJones went on to explain that the date before the accident (which was Monday, January 17, 2022) \nMr. Needham, who usually gave him a ride to work, was off work, so he asked the claimant “that \nevening” (i.e., Monday, January 17, 2022) if the claimant could give him a ride to work the next \nmorning (i.e., Tuesday, January 18, 2022). (T. 43-44). Mr. Jones said asking a coworker to pick \n\nLarry Zintel, AWCC No. H304280 \n \n \n \n6 \nhim up and take him to work is not something that would require a supervisor’s permission. (T. \n44).   \n       Mr. Jones testified the claimant called him on the day of the MVA, after it had occurred; \nbut  said  he  did  not  talk  to  the  claimant  the  morning  of  the  MVA  (Tuesday,  January  18,  2022) \nbefore the accident occurred. Mr. Jones testified he had only talked to the claimant in person the \nevening before the date of the MVA (Monday, January 17, 2022) when he asked the claimant in \nperson if he could give him a ride to work the next day – January 18, 2022 – which was the day \nthe MVA occurred. (T. 43-44).   \n On cross-examination the claimant’s attorney pressed Mr. Jones, attempting to clarify his \ntestimony:   \n Q. You called Mr. Zintel the night before and asked him to come pick you up the next \n            day. Is that your testimony? \n \n A. I talked to Mr. Zintel that evening. \n Q. At work?   \n A. Yes.   \n Q. On Martin Luther King’s birthday? \n A. Sir, I don’t recollect what it was as far as a birthday. I don’t recollect what it was.  \n \n Q. The County Road and Bridge Department, is it open on Martin Luther King’s  \n  birthday? \n \nA. I can’t recall, sir.  \n \n Q.   Are you still employed with Pulaski County Road and Bridge? \n A. Yes, sir, I am. \n\nLarry Zintel, AWCC No. H304280 \n \n \n \n7 \n Q. Did anybody tell you how to testify here today? \n A. No, sir, they did not. \n Q. All right.   \n(T. 46).   \n        A little bit before Noon on the same day of the 1/18/2022 MVA, the claimant presented \nhimself  to  the  emergency  room  (ER)  complaining  of  neck,  shoulder,  and  hip  pain.  He  was \ndiagnosed with a cervical strain, prescribed narcotic pain medication, and released. (CX1 at 1-5). \nOn  April  7,  2022,  the  claimant  underwent  cervical  and  lumbar  spine  MRIs  at  Baptist  Hospital, \nwhich will be discussed in more detail below. (CX1 at 7-9)   \n       The  claimant  underwent  a  lumbar  MRI  on  April  7,  2022,  which  the  radiologist  Dr. \nRaymond Peeples interpreted as follows: “No evidence of acute lumbar spine injury.  Lower \nlumbar  degenerative  findings  are  present,  superimposed  on  mild  diffuse  narrowing  of  the  bony \nspinal canal secondary to short pedicles, as detailed above.” (CX1 at 7-9; RX1 at 1). Consequently, \nin a note dated April 19, 2022, Dr. Robert Ritchie of Concentra opined the claimant suffered from \n“chronic” neck and back pain and that he reached MMI as of April 12, 2022. (RX1 at 5; 2-5). \n Thereafter,  the  claimant  underwent  physical  therapy  (PT)  and  was  treated  with  pain, \nmuscle  relaxant,  and  anti-inflammatory  medications  including  Tramadol,  Gabepentin,  Robaxin, \nand Dicolfenac, although he did not take the Tramadol while working. (CX1 at 10). Because of \nhis  continued  neck  and  lower  back  pain  complaints,  the  claimant  was  evaluated  by  and  treated \nwith orthopedic specialists at Arkansas Spine and Pain and OrthoArkansas. (CX1 at 10-27). \n The  claimant  eventually  came  under  the  care  of  Dr.  I.U.  Onyekwela  (Dr.  O)  of \n\nLarry Zintel, AWCC No. H304280 \n \n \n \n8 \nOrthoArkansas  in  August  of  2023,  for  his  continuing  complaints  of  lower  back  pain  and \nradiculopathy. Dr. O ordered an MRI. The claimant underwent this MRI on September 18, 2023, \nwhich was not inconsistent with the April 7, 2022, MRI, and was interpreted as follows: “Bilateral \npars defect L5-S1 with grade 1 anterolisthesis. Neural foraminal stenosis worse on the right at L5-\nS1.” (CX1 at 19; RX1 at 6). Believing the L5 pars defect to be the cause of the claimant’s lower \nback  pain,  on  September  26,  2023,  Dr.  O  performed  surgery  on the claimant’s lumbar  spine  to \nalleviate the claimant’s lower back pain. (CX1 at 25-27).   \n        There exists no evidence in the record the claimant suffered from chronic lower back pain \nbefore the subject MVA of January 18, 2022, or that the cause of his continued lower back pain in \nthe days, weeks, and months after the 1/18/2022 MVA and the 9/23/2023 surgery was the result \nof some independent, intervening incident that happened at some point after the MVA. (T. 20-21; \nCX1 at 1-29; RX1 at 1-6). \n The  respondents  requested  that  Dr.  Ryan  Fitzgerald,  an  Arkansas-licensed  radiologist \nassociated  with  Fitzgerald  Medical  Consulting,  LLC,  review  the  original  films/media  of  the \nclaimant’s various diagnostic tests as set of in his written report dated November 28, 2023. (RX1 \nat 7-8). Dr. Fitzgerald concluded his report by stating: \nIn summary, MRI exams obtained in April 2022 and August 2023 showed, on my \npersonal  review,  no  evidence  of  an  acute  traumatic  injury.  Instead,  both  exams \nrevealed multiple potential degenerative pain generators independent of the subject \nevent [i.e., the Tuesday, January 18, 2022, MVA]. \n   \n(RX1 at 8; 7-8) (Bracketed material added). \n \n The claimant testified he has not returned to work since the January 18, 2022, MVA, and \nthat he does not believe he is physically capable of returning to work at this time because he is, \n\nLarry Zintel, AWCC No. H304280 \n \n \n \n9 \n“still recovering and recuperating.” (T. 19). He also testified his, “doctor’s still got me on light-\nduty, and we’ll find out more on January 17.” (T. 19). He further testified he does not believe he \nwill ever be able to perform any type of physical work in the future. (T. 21).   \n The claimant testified that Ambetter and Medicaid paid his medical bills, and he did not \npay anything out-of-pocket, but he no longer had insurance as of the hearing date. He also testified \nhe took off work pursuant to the Family and Medical Leave Act (FMLA) for a period of time after \nthe 1/18/2022 MVA, but that PCRB let him go after his FMLA time expired. (T. 29-31). On re-\ncross  examination –  as  he  had  initially  volunteered  in  his  direct  examination  testimony –  the \nclaimant  admitted  that  on  the  day  of  the  1/18/2022  MVA  an  ambulance  had  been  called  to  the \naccident scene but he did not require it to take him anywhere for medical treatment; and that he \ntold  the  police  officer  at  the  scene  he  was  not  injured.  On  re-cross  he  also  admitted  to  having \ntraveled to Eureka Springs in the Summer of 2023, and that he had attended a Jeff Dunham show \nsince the subject MVA. The claimant has applied for Social Security disability (SSD) benefits, but \nhis claim was denied. (T. 31-32).   \nDISCUSSION \nThe Burden of Proof \n When deciding any issue, the ALJ and the Commission shall determine, on the basis of the \nrecord  as  a  whole,  whether  the  party  having  the  burden  of  proof  has  established  it  by  a \npreponderance of the evidence. Ark. Code Ann. § 11-9-704(c)(2) (2023 Lexis Replacement). The \nclaimant has the burden of proving by a preponderance of the evidence he is entitled to benefits. \nStone v. Patel, 26 Ark. App. 54, 759 S.W.2d 579 (Ark. App. 1998). Ark. Code Ann. Section 11-\n\nLarry Zintel, AWCC No. H304280 \n \n \n \n10 \n9-704(c)(3) (2023 Lexis Repl.) states that the ALJ, the Commission, and the courts “shall strictly \nconstrue” the Act, which also requires them to read and construe the Act in its entirety, and to \nharmonize its provisions when necessary. Farmers Coop. v. Biles, 77 Ark. App. 1, 69 S.W.2d 899 \n(Ark.  App.  2002).  In  determining  whether  the  claimant  has  met  his  burden  of  proof,  the \nCommission is required to weigh the evidence impartially without giving the benefit of the doubt \nto either party. Ark. Code Ann. § 11-9-704(c)(4) (2023 Lexis Repl.); Gencorp Polymer Products \nv. Landers, 36 Ark. App. 190, 820 S.W.2d 475 (Ark. App. 1991); Fowler v. McHenry, 22 Ark. \nApp. 196, 737 S.W.2d 633 (Ark. App. 1987). \n All claims for workers’ compensation benefits must be based on proof. Speculation and \nconjecture, even if plausible, cannot take the place of proof. Ark. Dep’t of Corrections v. Glover, \n35 Ark. App. 32, 812 S.W.2d 692 (Ark. App. 1991); Deana Constr. Co. v. Herndon, 264 Ark. 791, \n595 S.W.2d 155 (1979). It is the Commission’s exclusive responsibility to determine the credibility \nof the witnesses and the weight to give their testimony. Whaley v. Hardees, 51 Ark. App. 116, 912 \nS.W.2d 14 (Ark. App. 1995). The Commission is not required to believe either a claimant’s or any \nother witness’s testimony, but may accept and translate into findings of fact those portions of the \ntestimony it deems believable. McClain v. Texaco, Inc., 29 Ark. App. 218, 780 S.W.2d 34 (Ark. \nApp. 1989); Farmers Coop. v. Biles, supra.  \n The  Commission  has  the  duty  to  weigh  the  medical  evidence  just  as  it  does  any  other \nevidence,  and  its  resolution  of  the  medical  evidence  has  the  force  and  effect  of  a  jury  verdict. \nWilliams v. Pro Staff Temps., 336 Ark. 510, 988 S.W.2d 1 (1999). It is within the Commission’s \nprovince  to  weigh  the  totality  of  the  medical  evidence  and  to  determine  what  evidence  is  most \n\nLarry Zintel, AWCC No. H304280 \n \n \n \n11 \ncredible  given  the  totality  of  the  credible  evidence  of  record. Minnesota  Mining  &  Mfg’ing  v. \nBaker, 337 Ark. 94, 989 S.W.2d 151 (1999). \n Both the claimant’s and respondents’ attorneys are  to  be  commended  for  their  thorough \nresearch as well as their zealous, good faith arguments on behalf of their respective clients. The \nexcellent record they made, as well as their thoughtful, well-written, and well-reasoned briefs – \nboth of which cited specific facts from the record – were most informative and helpful in assisting \nthe ALJ render the opinion herein.   \nThe Act’s “Employment Services” Exception to Compensability \n Of course, Ark. Code Ann. Section 11-9-102(4) (2023 Lexis Replacement), infra, sets forth \nthe elements a claimant must prove by a preponderance of the credible evidence of record in order \nto demonstrate a specific-incident compensable injury. But in this case, before I may even reach \nthe issue of compensability, I must address the threshold issue concerning whether the claimant \nwas performing “employment services” at the time of the subject  Tuesday,  January  18,  2022, \nMVA.   \n Pursuant to Ark. Code Ann. § 11-9-102(4)(B)(iii) (2023 Lexis Replacement) exempts from \nthe Act’s definition of a “compensable injury” any injury that was inflicted upon the employee at \na  time  when  employment  services  were  not  being  performed.  An  employee  is  generally  not \nconsidered to be performing employment services while merely traveling to or from the workplace; \nthus,  what  we  have  referred  to  for  as  long  as  I  can  remember  as  the “going-and-coming  rule” \nordinarily precludes a finding of compensability for injuries sustained while an employee is going \nto or returning from work. Moncus v. Billingsley Logging, 366 Ark. 383, 235 S.W.3d 877 (2006). \n\nLarry Zintel, AWCC No. H304280 \n \n \n \n12 \nThe rationale for this rule is that all persons, including employees, are subject to the recognized \nhazards of travel to and from work in a vehicle (or otherwise). Id.   \n The  Act’s  “employment  services”  exception  has  produced  a  great  deal  of  appellate \nprecedent. The Arkansas Supreme Court has held that the test to determine whether an employee \nwas in fact performing “employment services” at the time of an alleged injury(ies) is the same as \nthe  test  used  to  determine  whether  an  employee  was  acting  within  the  course  and  scope  of \nemployment, specifically: Whether the injury occurred  within the time and space boundaries of \nthe employment when the employee was carrying out the employer’s purpose(s) or advancing the \nemployer’s interest(s), either directly or indirectly. Collins v. Excel Specialty Products, 347 Ark. \n811,  69  S.W.3d  14  (2002); Pifer  v.  Single  Source  Transportation, 347  Ark.  815,  69  S.W.3d 1 \n(2002). \n Concerning the threshold employment services issue, in their brief the respondents cite a \nnumber of cases – both Full Commission and Arkansas appellate court cases – in support of their \ncontention  the  claimant  was not  engaged  in “employment services” at the time of the subject \nTuesday,  January  18,  2022,  MVA.  In  summary,  all  the  cases  the  respondents  cite  in  their  post-\nhearing  brief  deal  with  fact  situations  wherein  the  Commission  and/or  courts  have  deemed  the \nclaimant not to have been performing “employment services” at the time of the  incidents  in \nquestion. (Respondents’ Post-Hearing  Brief  at  3-5).  The  respondents’  contention  in  this  regard \nmay be summarized by the following sentences in their brief: “At the time of Mr. Zintel’s motor \nvehicle accident, he was doing absolutely nothing work-related. While it was generous of him to \npick  up  a  coworker,  he  was  not  in  the  course  and  scope  of  his  employment  at  the  time.” \n\nLarry Zintel, AWCC No. H304280 \n \n \n \n13 \n(Respondents’ Post-Hearing Brief at 5). However, based on the facts of this case as applied to the \napplicable law, I am compelled to find the claimant has met his burden of proof in demonstrating \nhe was engaged in employment services at the time the 1/18/2022 MVA occurred.       \n The preponderance of the credible evidence of record reveals a supervisor – forman Gary \nEllison – called him while he was on his way to work and instructed him to deviate from his normal \nroute to work in order to pick up a co-worker, Mr. David Jones, who was without transportation. \n(Mr. Jones apparently usually rode with another employee, but that employee was not going to be \nat work on Tuesday, 1/18/2022.) As the claimant credibly testified: \nI was driving in to work, my phone rang. I was it was Foreman Gary, and I went to \nreach for it and couldn’t reach it, so I had to pull over, get my phone. I answered it \nand Gary was instructing me I need to go pick up David Jones because his ride was \nnot able to come in to work.   \n \n(T.  13).  The  claimant  did  not  understand  that “Foreman  Gary”  was  asking  him  to  perform  a \npersonal favor. (Id). Quite to the contrary the claimant testified, “I took it as he needed me to go \npick up a fellow employee on my way in to work and bring him to work, which, in turn, I’d have \nto drive past the job, go pick him up and come back.” (T. 14). Indeed, the claimant did not believe \nhe had a choice as to whether he was to pick up the co-worker. (Id). Of course, the claimant did \nnot, however, ever make it to pick up Mr. Jones, as he was involved in the MVA before he arrived \nat Mr. Jones’ house. (Id). The claimant only worked only one (1) day for respondent after the day \nof the accident, 1/18/2022. (T. 17). \n Taken as a whole, the testimony of the respondents’ two (2) witnesses seeking to rebut the \nclaimant’s testimony that a supervisor called him and asked him to pick up Mr. Jones simply is \nnot  persuasive.  The  first  witness,  Mr.  Seymour,  candidly  conceded  he  had  no  knowledge  of \n\nLarry Zintel, AWCC No. H304280 \n \n \n \n14 \nwhether directed to pick up Mr. Jones on the morning of the subject MVA: \n Q. You do not know one way or the other whether Gary Ellison called Larry Zintel on \n  the morning of January the 18\nth\n 2022, do you?   \n \n A. I do not know, sir. \n(T. 40). \n And the record reveals the testimony of the respondents’ other witness, Mr. David Jones, \nis inconsistent and, therefore, lacks credibility. Mr. Jones initially testified: \nOkay. The day before the accident, like, my coworker that I normally ride with, he \nwas off that particular day, so that evening I asked Mr. Zintel could he perhaps give \nme a ride to work? And he agreed that he would pick me up hat particular morning.   \n \n(T. 43). However, Mr. Jones’s testimony is entitled to little or no weight since neither he nor Mr. \nZintel were even at work, “the day before the accident.”   \n        The   day   before   the   accident   was   January   17,   2022.   The   Commission  may   take \nadministrative/judicial  notice  that  January  17,  2022,  was  both  a  state  and  federal  holiday and, \ntherefore, all city, county, state, and federal government offices were closed that day in observance \nof Martin Luther King, Jr.’s (MLK) birthday. There exists no evidence in the record to rebut this \nfact. More specifically, there exists no evidence in the record to demonstrate the PCRB employees \nwere at work on the MLK birthday holiday. \n Consequently,  the  preponderance  of  the  credible  evidence  of  record  reveals  Mr.  Jones \ncould not, and at the very least that it is more likely than not that Mr. Jones did not talk with the \nclaimant at work on the evening of the MLK holiday – Monday, January 17, 2022 – the day before \nthe subject MVA of Tuesday, January 18, 2022. Indeed, the preponderance of the credible evidence \nreveals the claimant, “was instructed to go and pick him [Mr. David Jones] up because his normal \n\nLarry Zintel, AWCC No. H304280 \n \n \n \n15 \nride was having to quarantine out for COVID from his son being positive for COVID.” (T. 53) \n(Bracketed material added). I find the claimant’s testimony to be more credible on these facts than \nthat of the respondents’ witnesses. The preponderance of the credible  evidence leads one to the \nconclusion  the claimant  was  in  fact  advancing  his  employer’s  interest  when  he  followed  a \nsupervisor’s instructions, and deviated from his normal route to work to pick up a coworker who \notherwise would not have had ready transportation to work.     \nThe Act’s Definition of a Specific-Incident Compensable Injury \n The  respondents  second  contention  is  that  the  claimant  has  failed  to  meet  his  burden  of \nproof in demonstrating he sustained a compensable lower back/lumbar spine injury in the subject \nMVA because the medical record fails to reveal any objective findings of an acute traumatic lower \nback/lumbar spine injury. (Respondents’ Brief at 5-6).     \n For  any  specific-incident  injury  to  be  compensable,  the  claimant  must  prove  by  a \npreponderance of the evidence that his injury: (1) arose out of and in course of his employment; \n(2) caused internal or external harm to his body that required medical services; (3) is supported   \nby objective findings, medical evidence, establishing the alleged injury; and (4) was caused by a \nspecific  incident  identifiable  by  time  and  place  of  occurrence. Ark.  Code  Ann.  §  11-9-102(4); \nCossey v. Gary A. Thomas Racing Stable, 2009 Ark. App. 666, at 5, 344 S.W.3d 684, 687 (Ark. \nApp.  2009).  Of  course,  the  claimant  bears  the  burden  of  proving  the  compensable  injury  by  a \npreponderance of the credible evidence. Ark. Code Ann. § 11-9-102(4)(E)(i); and Cossey, supra.   \n “Objective findings” are those findings which cannot come under the voluntary control of \nthe patient. Ark. Code Ann. § 11-9-102(16)(A); Long v. Wal-Mart Stores, Inc., 98 Ark. App. 70, \n\nLarry Zintel, AWCC No. H304280 \n \n \n \n16 \nat  80  250  S.W.3d  263,  at  272  (Ark.  App.  2007).  Objective  findings, “specifically exclude such \nsubjective complaints or findings such pain, straight-leg-raising tests, and range-of-motion tests.” \nBurks  v.  RIC,  Inc.,  2010  Ark.  App.  862  (Ark.  App.  2010).  Objective  medical  evidence  is  not \nessential to establish a causal relationship between the work-related accident and the alleged injury \nwhere objective medical evidence exists to prove the existence and extent of the underlying injury, \nand a preponderance of other nonmedical evidence establishes a causal relationship between the \nobjective  injury  and  the  work-related  incident(s)  in  question. Flynn  v.  Southwest  Catering  Co., \n2010  Ark.  App.  766,  379  S.W.3d  670  (Ark.  App.  2010).  Moreover,  the  claimant  must  prove  a \ncausal relationship exists between her employment and the alleged injury. Wal-Mart Stores, Inc., \nv. Westbrook, 77 Ark. App. 167, 171, 72 S.W.3d 889, 892 (Ark. App. 2002) (citing McMillan v. \nU.S. Motors, 59 Ark. App. 85, 90, 953 S.W.2d 907, 909 (Ark. App. 1997)).   \n Concerning the proof required to demonstrate the aggravation of a preexisting condition, \nour appellate courts have consistently held that since an aggravation is a new injury, a claimant \nmust prove it by new objective evidence of a new injury different than the preexisting condition. \nVaughn  v.  Midland  School  Dist.,  2012  Ark.  App.  344  (Ark.  App.  2012)  (citing Barber  v.  Pork \nGrp., Inc., 2012 Ark. App. 138 (Ark. App. 2012); Grothaus v. Vista Health, LLC, 2011 Ark. App. \n130, 382 S.W.3d 1 (Ark. App. 2011); Mooney v. AT & T, 2010 Ark. App. 600, 378 S.W.3d 162 \n(Ark.  App.  2010)  (Emphases  added.).  Where  the  only  objective  findings  present  are  consistent \nwith prior objective findings or consistent with a long-term degenerative condition rather than an \nacute  injury,  this  does  not  satisfy  the  objective  findings  requirement  for  the  compensable \naggravation  of  a  preexisting  condition  injury. Vaughn,  2012  Ark.  App.  344,  at  6  (holding  that \n\nLarry Zintel, AWCC No. H304280 \n \n \n \n17 \nArkansas courts have interpreted the Act to require “new objective medical findings to establish a \nnew injury when the claimant seeks benefits for the aggravation of a preexisting condition”); \nBarber,  supra (affirming the Commission’s denial of an aggravation of a preexisting condition \nclaim where the MRI findings revealed a degenerative condition, with no evidence of, and which \ncould not be explained by, an acute injury) (Emphases added.). In Mooney, 2010 Ark. App. 600 at \n4-6,  378  S.W.3d  at  165-66  (Ark.  App. 2010), the court affirmed the Commission’s decision \ndenying a back injury claim where the objective evidence of an injury - including muscle spasms, \npositive EMG test results, and spinal stenosis revealed on an MRI - were all present both before \nand after the date of the alleged aggravation injury. (Emphasis added). \n Without a doubt, the record reveals that objective evidence – objective medical evidence – \nexists in this case. Therefore, only real primary point of contention is whether the objective evidence \nin  question – i.e.,  the  various  preexisting  degenerative  conditions  and  the L5-S1  pars  defect  the \nMRIs demonstrated – were or were not the result of the subject 1/18/2022 MVA, or whether the \nMVA aggravated or accelerated these preexisting degenerative conditions of the claimant’s lumbar \nspine.     \n In the present case, the claimant underwent an MRI of his lumbar spine on April 7, 2022. \nThe report from that test reflects, “No evidence of acute lumbar spine injury.” (RX. at 1). An MRI \nof the cervical spine showed, “minimal degenerative changes.” Another MRI of the lumbar spine \nwas performed on August 18, 2023, which revealed, “Bilateral pars defects L5-S1  with  grade  1 \nanterolisthesis.  Neural  foraminal  stenosis  worse  on  the  right  at  L5-S1.”  (RX1  at 6). Dr.  Ryan \n\nLarry Zintel, AWCC No. H304280 \n \n \n \n18 \nFitzgerald, a  radiologist  licensed  to  practice  in  Arkansas  associated  with  Fitzgerald  Medical \nConsulting, LLC, reviewed the claimant’s lumbar MRI films and confirmed they fail to reveal any \nevidence  of  an  acute traumatic  injury  but,  “instead,  both  exams  revealed  multiple  potential \ndegenerative pain generators independent of the subject event.” (RX1 at 7-8). \n Even taking Dr. Fitzgerald’s opinion at face value, the record is completely devoid of any \nevidence the claimant had ever suffered from lower back/lumbar spine-generated pain, undergone \ntreatment  for  any  such  pain,  or  that  any  such  pain  had  prevented  him  from  performing  his \nadmittedly  strenuous  manual  labor  job  at  any  time before  the  1/18/2022  MVA.  Based  on  the \nspecific facts of this case I cannot and do not find Dr. Fitzgerald’s opinion to be as persuasive as \nthe  totality  of  all  the  other  credible,  unrebutted  evidence  of  record.  To  find  otherwise  would \nconstitute sheer speculation and conjecture which, of course, can neither support or disprove a \nclaim for compensation. See, e.g., Deana, supra.   \n       Therefore,  after  examining  the  totality  of  all  the  medical  and  other  relevant,  credible \nevidence of record,  I am compelled to find  the 1/18/2022 work-related MVA more likely than \nnot  either  caused  and/or  aggravated  or  accelerated  the  preexisting  conditions  identified  by  the \npost-1/18/2022 MVA MRIs – and particularly the L5-S1pars defect. Just as surely as the claimant \ndid have preexisting degenerative conditions in his lumbar spine, he also was involved in a rather \nserious,  practically  head-on  collision  that created enough of a collision to deploy his truck’s \nairbags, and to prompt someone to call an ambulance. And while the claimant did not ride in the \nambulance to the ER, later that same day – 1/18/2022 – before Noon he himself was in enough \n\nLarry Zintel, AWCC No. H304280 \n \n \n \n19 \npain he presented himself to the ER. (T. 15; CX 1 at 1). Although his injuries initially appeared \nunremarkable, the claimant’s treating  physician  emphasized  to  him, “that emergent conditions \nmay arise and to return to the ER for new, worsening. Or any persistent conditions.” (CX1 at 5).   \n After  the  1/18/2022  MVA  the  claimant  suffered  chronic  lower  back/lumbar  spine  pain. \n(CX1  at  11-12).  He  was  given  a  work  restriction  as  of  6/2/22.  (CX  1  at  15).  And  again, \nsignificantly, the record is devoid of any evidence revealing the claimant ever had a problem with \nhis lower back before the subject work accident. And the claimant’s unrebutted testimony was that \nhe had no back pain and had never sought treatment for any back pain or discomfort, nor had lower \nback pain ever kept him from working. (C1 1 at 22). Dr. O ultimately diagnosed the claimant with \na “bilateral LA5 pars defect”, a condition well-known to the Commission that is a common cause \nof lower back/lumbar spine-generated pain and radiculopathy. (CX 1 at 22).   \n        Consequently, the preponderance of the aforementioned evidence reveals the claimant’s \nlower back pain/lumbar spine problems shown on the MRIs – including but not limited to the L5-\nS1 pars defect – were at the very least aggravated or accelerated by the subject 1/18/2022 MVA, \ncreating  pain  and  disability,  requiring  him  to  take  narcotic  pain,  anti-inflammatory,  and  other \nmedication (even Gabepentin, a well-known narcotic pain medication used in an attempt to help \nalleviate nerve pain), undergo PT, continuing medical treatment and, ultimately, requiring Dr. O \nto perform surgery in 2023 September. (CX 1 at 23; 25-27). And see, e.g., Lowes’s Home Centers, \nInc., v. Robertson, 2019 Ark. App. 24, 567 S.W.3d 899 (Ark. App. 2019); Fred’s, Inc. v. Jefferson, \n361  Ark.  258,  206  S.W.3d  238  (2005), et  al.  (Of  course, if the  claimant  would  have  had  a   \ndemonstrated,  documented,  or  admitted  history  of  lower  back/lumbar  spine  injury(ies),  pain, \n\nLarry Zintel, AWCC No. H304280 \n \n \n \n20 \nand/or treatment, etc., these facts may very well have demanded a contrary conclusion/decision in \nthis claim.) \n Therefore, for all the aforementioned reasons I hereby make the following: \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n1. The stipulations contained in the prehearing order filed October 31, 2023, hereby are \naccepted as facts.  \n \n2. The  claimant  has  met  his  burden  of  proof  in  demonstrating  he  was  engaged  in \n“employment services” at the time the subject January 18, 2022, MVA. \n   \n3. The  claimant  has  met  his  burden  of  proof  in  demonstrating  he  sustained  a \ncompensable lower back injury/lumbar spine specific injury – the bilateral L5-S1 pars \ndefect  and/or  the  aggravation  or  acceleration  of  the  preexisting  degenerative \ncondition(s) of his lumbar spine – as a result of the January 18, 2022, MVA. Based \non the applicable law and the facts of this claim, these conditions constitute “objective \nfindings” sufficient to support a claim for benefits herein.  \n \n4. The  record  is  devoid  of  any  evidence  the  claimant  ever  suffered  from  a  history  of \nlower back injury(ies), or chronic lower back/lumbar spine pain; that he ever required \nor underwent treatment for such pain; that such pain ever resulted in disability that \nrequired  him  to  miss  work  as  a  result  of  any  such  pain  and/or  the  preexisting \ndegenerative  condition(s)  of  his  lower  back/lumbar  spine  at  any  time before  the \nsubject Tuesday, January 18, 2022, MVA. \n \n5. The respondents are responsible for payment of the claimant’s related, reasonably \nnecessary  medical  treatment,  and  other  such  expenses  related  to  his  compensable \nlower back/lumbar spine injury. \n \n6. The  claimant  is  entitled  to  TTD  benefits  from  the  date  of  his  compensable  lower \nback/lumbar spine injury – Tuesday, January 18, 2022 – through the date his treating \northopedic surgeon, Dr. O, opines he reached MMI. Mad Butcher v. Parker, 4 Ark. \nApp. 124, 628 S.W.2d 582 (Ark. App. 1982). \n \n7. The claimant’s attorney is entitled to a controverted fee on these facts. \nAWARD \n \n WHEREFORE, the respondents hereby are directed to pay benefits in accordance with the \n\nLarry Zintel, AWCC No. H304280 \n \n \n \n21 \n“Findings of Fact and Conclusions of Law” set forth above. All accrued sums shall be paid in lump \nsum without discount, and this award shall earn interest at the legal rate until paid pursuant to Ark. \nCode Ann. Section 11-9-809, and Couch v. First State Bank of Newport, 49 Ark. App. 102, 898 \nS.W.2d 57 (Ark. App. 1995); Burlington Indus., et al v. Pickett, 64 Ark. App. 67, 983 S.W.2d 126 \n(Ark. App. 1998); and Hartford Fire Ins. Co. v. Sauer, 358 Ark. 89, 186 S.W.3d 229 (2004). \n If they have not already done so, the respondents shall pay the court reporter’s invoice \nwithin twenty (20) days of their receipt of this opinion. \n IT IS SO ORDERED. \n \n                                                                             \n                                               _____________________________                   \n                 Mike Pickens \n               Administrative Law Judge \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \nMP/mp","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H304280 LARRY M. ZINTEL, EMPLOYEE CLAIMANT PULASKI COUNTY ROAD & BRIDGE, EMPLOYER RESPONDENT AAC RISK MG’T SERVICES, CARRIER/TPA RESPONDENT OPINION FILED MARCH 5, 2024 Hearing conducted before the Arkansas Workers’ Compensation Commission (the Commission), ...","fetched_at":"2026-05-19T22:55:59.279Z","links":{"html":"/opinions/alj-H304280-2024-03-05","pdf":"https://labor.arkansas.gov/wp-content/uploads/ZINTEL_LARRY_H304280_20240305.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}