{"id":"alj-H305153-2024-05-24","awcc_number":"H305153","decision_date":"2024-05-24","opinion_type":"alj","claimant_name":"Ricky Smith","employer_name":"Ark. Dept. Of Transp","title":"SMITH VS. ARK. DEPT. OF TRANSP. AWCC# H305153 MAY 24, 2024","outcome":"granted","outcome_keywords":["dismissed:1","granted:2","denied:1"],"injury_keywords":["neck","back"],"pdf_url":"https://www.labor.arkansas.gov/wp-content/uploads/Smith_Ricky_H305153_20240524.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Smith_Ricky_H305153_20240524.pdf","text_length":18926,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H305153 \n \n \nRICKY SMITH, EMPLOYEE CLAIMANT \n \nARK. DEPT. OF TRANSP., \n EMPLOYER RESPONDENT \n \nPUBLIC EMPLOYEE CLAIMS, \n CARRIER/TPA RESPONDENT \n \n \nOPINION FILED MAY 24, 2024 \n \nHearing before Administrative Law Judge O. Milton Fine II on April 12, 2024, in Forrest \nCity, St. Francis County, Arkansas. \n \nClaimant pro se. \n \nRespondents  represented  by  Mr. Robert  H. Montgomery,  Attorney  at  Law,  Little  Rock, \nArkansas. \n \n \nSTATEMENT OF THE CASE \n On April  12,  2024,  the  above-captioned  claim  was  heard  in Forrest  City, \nArkansas.   A  prehearing  conference  took  place  on February  5,  2024.   The  Prehearing \nOrder  entered  on  that  date  pursuant  to  the  conference  was  admitted  without  objection \nas  Commission  Exhibit  1.    At  the  hearing,  the  parties  confirmed  that  the  stipulations, \nissues, and respective contentions, as amended, were properly set forth in the order. \nStipulations \n The   parties   discussed   the   stipulations   set   forth   in   Commission   Exhibit  1.  \nFollowing an amendment of Stipulation No. 2 to correct a typographical error, they are \nthe following, which I accept: \n\nSMITH – H305153 \n \n2 \n \n1. The Arkansas Workers’ Compensation Commission has jurisdiction over \nthis claim. \n2. The    employee/employer/carrier/third-party     administrator     relationship \nexisted  among  the  parties  on  August  6,  2020,  when  Claimant  was \ninvolved in a motor vehicle accident. \n3. Respondents have controverted this claim in its entirety. \n4. Claimant’s  average  weekly  wage  entitles  him  to  the  maximum \ncompensation rates, $711.00/$533.00. \nIssues \n The  parties  discussed  the  issues  set  forth  in  Commission  Exhibit  1.   The \nfollowing were litigated: \n1. Whether  this  claim  is  barred  by  the  statute  of  limitations;  or  whether \nRespondents are estopped from raising this defense. \n2. Whether  Claimant  sustained  compensable  injuries to  his  neck,  back, \nshoulders, chest, and arms by specific incident. \n3. Whether   Claimant   is   entitled   to   reasonable   and   necessary   medical \ntreatment of his alleged injuries. \n4. Whether  Claimant  is  entitled  to  temporary  total  disability  benefits from \nAugust 12, 2020, to a date yet to be determined. \n6. Whether Respondents  are  entitled  to  an  offset  concerning  the  short-term \ndisability benefits paid to Claimant in connection with his alleged injuries. \n\nSMITH – H305153 \n \n3 \n \n All other issues have been reserved. \nContentions \n The respective contentions of the parties are as follows: \nClaimant: \n1. Claimant contends that on August 6, 2020, he was rear-ended in a motor \nvehicle  accident.    This  resulted  in compensable injuries  to  his  neck, \nshoulders, chest, arms, and back.  He also suffers from nervousness and \nanxiety,\n1\n and  has  discomfort  when  sleeping  or  when  walking  for  an \nextended period. \n2. Claimant further contends that he is entitled to reasonable and necessary \nmedical treatment, plus temporary total disability benefits. \nRespondents: \n1. Claimant alleged that he sustained injuries as the result of a motor vehicle \naccident on August 6, 2020.  Respondents have controverted this claim in \nits entirety. \n2. Information  currently  available  reflects  that  Claimant  may  have  been \ninvolved in a motor vehicle accident on his way to work on August 6, 2020.  \nHe  had  not  started  work  that  day  and  was  not  performing  employment \n \n \n1\nClaimant did not raise an issue regarding whether his alleged “nervousness and \nanxiety” are compensable.  I am unable to raise issues sua  sponte.    For  that  reason, \nthis  will  not  be  addressed.   But I  nonetheless  note  that  nothing  in  the  medical  records \nbefore  me  show  that  Claimant  has  made  a prima  facie case  that  he  has  sustained  a \ncompensable mental injury under Ark. Code Ann. § 11-9-113 (Repl. 2012). \n\nSMITH – H305153 \n \n4 \n \nservices at the time of the accident as required by Ark. Code Ann. § 11-9-\n102(4)(B)(iii) (Repl. 2012). \n3. Claimant  filed  a  Form  AR-C  dated  September  13,  2023.    The  form \nappears  to  have  been  received  by  the  Commission  on  September  18, \n2023.  It was received by Respondent Public Employee Claims Division on \nSeptember 19, 2023.  Respondents contend that this claim was not timely \nfiled  as  required  by Ark.  Code  Ann. § 11-9-702(a)(1) (Repl.  2012) and  is \ntherefore  barred  by  operation  of  the  statute.    That  provision  states  that \nclaims for compensation shall be barred unless filed with the Commission \nwithin  two  years  from  the  date  of  injury.    This  claim  was  filed  more  than \nthree years after the date of the motor vehicle accident for which Claimant \nnow requests benefits; therefore, it is time-barred. \n4. In  the  event  that  this  claim  is  ultimately  found  to  be  compensable, \nRespondents contend that:  (1) the notice provisions of Ark. Code Ann. § \n11-9-701(a)(1)  (Repl.  2012)  apply  to  the  facts  of  this  claim  and  that \nRespondents  are  thus  not  responsible  for  disability,  medical,  or  other \nbenefits prior to the receipt of Claimant’s report of injury; and (2) they are \nentitled  to  all  applicable  credits and  offsets  related  to  his  receipt  of  other \ndisability and/or indemnity benefits from other sources. \n\nSMITH – H305153 \n \n5 \n \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n After  reviewing  the  record  as  a  whole,  including  medical  reports,  deposition \ntestimony,  documents,  and  other  matters  properly  before  the  Commission,  and  having \nhad  an  opportunity  to  hear  the  testimony  of  the  witnesses  and  to  observe  their \ndemeanor,  I  hereby  make  the  following  findings  of  fact  and  conclusions  of  law  in \naccordance with Ark. Code Ann. § 11-9-704 (Repl. 2012): \n1. The Arkansas Workers’ Compensation Commission has jurisdiction over \nthis claim. \n2. The stipulations set forth above are reasonable and are hereby accepted. \n3. Claimant  has  not  proven  by  a  preponderance  of  the  evidence  that  the \ninstant  claim  for  initial  benefits  was  timely  filed.    Instead,  the  evidence \npreponderates that it is barred by the statute of limitations set forth in Ark. \nCode Ann. § 11-9-702(a)(1) (Repl. 2012). \n4. Because  of  the  above  finding,  the  remaining  issues–whether  Claimant \nsustained  compensable  injuries  to  his  neck,  back,  shoulders,  chest,  and \narms  by  specific  incident, when  did  he  provide  notice  of  his  alleged \ninjuries,  whether  he  is  entitled  to  reasonable  and  necessary  medical \ntreatment  of  his  alleged  injuries,  whether  he  is  entitled  to  temporary  total \ndisability benefits, and whether Respondents are entitled to an offset–are \nmoot and will not be addressed. \n\nSMITH – H305153 \n \n6 \n \nCASE IN CHIEF \nSummary of Evidence \n The witnesses were Claimant and Lieutenant Lonnie Banks. \n Along  with  the Prehearing Order  discussed  above,  the  exhibits  admitted  into \nevidence in this case consist of the following:  Claimant’s Exhibit 1, a compilation of his \nmedical  records and  related  documentation,  consisting  of 952  numbered pages; \nRespondents’ Exhibit 1, another compilation of Claimant’s medical records, consisting \nof one index  page  and 22 numbered pages thereafter; Respondents’ Exhibit 2, non-\nmedical records, consisting of one index page and 21 numbered pages thereafter; and \nRespondents’ Exhibit 3, the transcript of the deposition of Claimant taken December 11, \n2023, consisting of 79 numbered pages. \nADJUDICATION \nA. Statute of Limitations \n Claimant has alleged herein that he sustained compensable injuries to his neck, \nback,  shoulders,  chest,  and  arms  by  specific  incident  as  a  result  of  a  motor  vehicle \naccident  that  the  parties  have  stipulated  took  place  on  August  6,  2020.   Respondents \nhave  controverted  this  claim  in  its  entirety,  per  another  stipulation.   As  Claimant \nacknowledged  in  his  testimony  and  the  evidence  otherwise  shows,  no  benefits  of  any \ntype  have  been  paid  in  connection  with  this  claim.   Arkansas  Code  Annotated  §  11-9-\n702(a)(1)  (Repl.  2012)  sets  out  the  applicable  statute  of  limitations concerning  a  claim \nfor initial benefits: \n\nSMITH – H305153 \n \n7 \n \nA claim for compensation for disability on account of an injury, other than \nan occupational disease and occupational infection, shall be barred unless \nfiled with the Workers’ Compensation Commission within two (2) years \nfrom  the  date  of  the  compensable  injury.    If  during  the  two-year  period \nfollowing  the  filing  of  the  claim  the  claimant  receives  no  weekly  benefit \ncompensation  and  receives  no  medical  treatment  resulting  from  the \nalleged  injury,  the  claim  shall  be  barred  thereafter.    For  purposes  of  this \nsection, the date of the compensable injury shall be defined as the date an \ninjury is caused by an accident as set forth in § 11-9-102(4). \n \nSee  Wynne  v.  Liberty  Trailer,  2022  Ark.  65,  641  S.W.3d  621.   The  burden  rests  on \nClaimant to prove that his claim was timely filed.  Stewart v. Ark. Glass Container, 2010 \nArk.  198,  366  S.W.3d  358; Kent  v.  Single  Source  Transp.,  103  Ark.  App.  151,  287 \nS.W.3d 619 (2008).  Under Ark. Code Ann. § 11-9-705(a)(3) (Repl. 2012), he must do \nso by a preponderance of the evidence.  The standard “preponderance of the evidence” \nmeans the evidence having greater weight or convincing force.  Barre v. Hoffman, 2009 \nArk.  373,  326  S.W.3d  415; Smith  v.  Magnet  Cove  Barium  Corp.,  212  Ark.  491,  206 \nS.W.2d 442 (1947). \n A claimant’s testimony is never considered uncontroverted.  Nix v. Wilson World \nHotel, 46 Ark. App. 303, 879 S.W.2d 457 (1994).  The determination of a witness’s \ncredibility and how much weight to accord to that person’s testimony are solely up to the \nCommission.  White v. Gregg Agricultural Ent., 72 Ark. App. 309, 37 S.W.3d 649 (2001).  \nThe  Commission  must  sort  through  conflicting  evidence  and  determine  the  true  facts.  \nId.  In so doing, the Commission is not required to believe the testimony of the claimant \nor  any  other  witness,  but  may  accept  and  translate  into  findings  of  fact  only  those \nportions of the testimony that it deems worthy of belief.  Id. \n\nSMITH – H305153 \n \n8 \n \n In order to be timely, Claimant’s Form AR-C needed to have been filed within two \nyears  of  the  accident, or  by  August  6,  2022.    However, he did not sign the  claim  form \nuntil over 13 months past this deadline, on September 13, 2023; and it was not filed with \nthe  Commission  until  five  days  thereafter,  on  September  18,  2023.    Consequently, the \nstatute  of  limitations  was  clearly  abridged;  and  Claimant  has  not  met  his  burden  of \nestablishing that it was filed in a timely manner. \n In  an  effort  to  avoid  this  result,  Claimant  has  asserted  that the  doctrine  of \nequitable  estoppel  should  bar  Respondents  from  raising  this  affirmative  defense.    In \nSnow  v.  Alcoa,  15  Ark.  App.  205,  691  S.W.2d  194  (1985),  the  Arkansas  Court  of \nAppeals addressed whether the doctrine of estoppel operates as a bar to the raising by \nrespondents of the statute of limitations in the context of a workers’ compensation claim.  \nThe court wrote: \nEstoppel   is   an   equitable   doctrine which   is   invoked   in   appropriate \ncircumstances  to  prevent  a  party  from  prevailing  on  purely  technical \ngrounds  after  having  acted  in  a  manner  indicating  that  the  opposing \nparty’s strict compliance with the technicality would not be required.  In \nFoote’s Dixie Dandy v. McHenry, Adm.,  270  Ark.  816,  607  S.W.2d  323 \n(1980),  the  Arkansas  Supreme  Court stated  the  necessary  elements  of \nestoppel.  The Court said: \n \n(1)  the  party  to  be  estopped  must  know  the  facts;  (2)  he  must \nintend  that  his  conduct  shall  be  acted  on  or  must  so  act  that  the \nparty asserting the estoppel had a right to believe it is so intended; \n(3) the latter must be ignorant of the true facts; and (4) he must rely \non the former’s conduct to his injury. \n \n In  the  case  at  bar, none of the four elements listed above weigh in Claimant’s \nfavor.  Regarding Element No. 1, Claimant was in his personal vehicle, en route to his \n\nSMITH – H305153 \n \n9 \n \njob as an officer with the State of Arkansas Highway Police, at the time he was struck.  \nHe  contacted  Lieutenant  Banks,  his  supervisor,  to  inform  him  that  as  a  result  of  the \naccident, he was not feeling well and was going home to rest.  By Claimant’s own \nadmission,  at  the  time  of  the  collision,  he  had  not  yet  clocked  in  and  was  not  yet \nperforming  any  of  his  law  enforcement  duties;  he  was  merely  commuting  to  work.  \nCertainly,  Banks  was  not  in  a  position  to  believe  otherwise.    In Hudak-Lee  v.  Baxter \nCounty Reg. Hosp., 2011 Ark. 31, 378 S.W.3d 77, the Arkansas Supreme Court stated: \nIn  order  for  an  accidental  injury  to  be  compensable,  it  must  arise  out  of \nand  in  the  course  of  employment.    Ark.  Code  Ann.  §  11-9-102(4)(A)(i) \n(Supp.  2009).    A  compensable  injury  does  not  include  an  injury  that  is \ninflicted upon  the employee at  a  time  when employment  services are  not \nbeing performed. Ark. Code Ann. § 11-9-102(4)(B)(iii) (Supp. 2009).  The \nphrase “in the course of employment” and the term “employment services” \nare not defined in the Workers' Compensation Act.  Texarkana Sch. Dist. \nv. Conner, 373 Ark. 372, 284 S.W.3d 57 (2008).  Thus, it falls to the court \nto  define  these  terms  in  a  manner  that  neither  broadens  nor  narrows  the \nscope of the Act.  Id. \n \nAn employee is performing employment services when he or she is doing \nsomething  that  is  generally  required  by  his  or  her  employer.   Id.; Pifer  v. \nSingle  Source  Transp.,  347  Ark.  851,  69  S.W.3d  1  (2002).    We  use  the \nsame  test  to  determine  whether  an  employee  is  performing  employment \nservices as we do when determining whether an employee is acting within \nthe  course  and  scope  of  employment.  Jivan  v.  Econ.  Inn  &  Suites,  370 \nArk. 414, 260 S.W.3d 281 (2007).  The test is whether the injury occurred \nwithin  the  time  and  space  boundaries  of  the  employment,  when  the \nemployee  was  carrying  out  the  employer's  purpose  or  advancing  the \nemployer's interest, directly or indirectly.  Id.  In Conner, 373 Ark. 372, 284 \nS.W.3d  57,  we  stated  that  where  it  was  clear  that  the  injury  occurred \noutside the time and space boundaries of employment, the critical inquiry \nis  whether  the  interests  of  the  employer  were  being  directly  or  indirectly \nadvanced by the employee at the time of the injury.  Moreover, the issue \nof  whether  an  employee  was  performing  employment  services  within  the \ncourse of employment depends on the particular facts and circumstances \nof each case.  Id. \n\nSMITH – H305153 \n \n10 \n \n \nBanks  testified  that  Claimant  never  approached  him  and  indicated  that  he  wanted  to \ninitiate the workers’ compensation process.  Instead, Banks assisted him with applying \nfor leave under the Family Medical Leave Act (“FMLA”).  I credit this. \n Concerning  Element  No.  2,  the  evidence  does  not  show  that  Banks  said  or  did \nanything to dissuade Claimant from filing a workers’ compensation claim earlier than he \ndid.  Claimant eventually filed his Form AR-C on the advice of his physician, Dr. Lloyd \nRobinson.    It  was  Claimant's  testimony  that  as  part  of  his  training  for Respondent \nemployer, “[w]orkman [sic] comp was never mentioned.”  In contrast, Banks’s testimony \nwas  that  Claimant  as  an  Arkansas  Highway  Police  officer  not  only  received  training \nregarding workers’ compensation, but that he was a recipient of emails that were sent \nout  concerning  the  process.    This  includes  a  program  called  Company  Nurse.    The \nfollowing exchange took place while Lieutenant Banks was on the witness stand: \nQ. Have  you  ever,  in  the  course  of  this  action,  did  you  ever  advise \n[Claimant] not to file a workers’ compensation claim? \n \nA. No, sir. \n \nQ. Did you do anything that slowed down or deterred him from filing a \nworkers’ compensation claim? \n \nA. No, sir. \n \nAfter consideration, I credit Banks over Claimant.  In so doing, I note that photographs \nin evidence, which depict the bulletin board at the location where Claimant reported to \nwork, included the contact information for Company Nurse that was to be employed “IN \nCASE OF WORKPLACE INJURY” (emphasis in original). \n\nSMITH – H305153 \n \n11 \n \n As  for  Element  No.  3,  Claimant  was  hardly  ignorant  of  the  true  facts.    As \ndiscussed  above,  he  was  the  one  person  who  had  in  his  possession  all  of  the  facts \nsurrounding  his  motor  vehicle  accident.    Moreover,  he  had  been  instructed  in  the \nprocess of filing a workers’ compensation claim.  That doing so did not occur to him until \nhis conversation with Dr. Robinson does not excuse this. \n Finally,   with   respect   to   Element   No.   4, the   evidence   establishes   that \nRespondents  did  not  engage  any  conduct  on  which  Claimant  relied  to  his  detriment.  \nNeither  Banks  nor  anyone  affiliated  with  Respondents  did  anything  whatsoever  to \nprevent Claimant from filing a claim earlier than he did.  In sum, the doctrine of equitable \nestoppel  does  not  bar  Respondents  from  asserting  their  statute-of-limitations  defense \nhere. \n Claimant cannot, and has not, proven that the instant claim was timely filed under \nArk. Code Ann. § 11-9-702(a)(1).  Instead, the evidence preponderates that it is barred \nby the statute of limitations set forth in Ark. Code Ann. § 11-9-702(a)(1) (Repl. 2012). \nB. Remaining Issues \n Because  this  claim  is  time-barred,  the  remaining  issues–whether  Claimant \nsustained  compensable  injuries  to  his  neck,  back,  shoulders,  chest,  and  arms  by \nspecific  incident,  when  did  he  provide  notice  of  his  alleged  injuries,  whether  he  is \nentitled to reasonable and necessary medical treatment of his alleged injuries, whether \nhe  is  entitled  to  temporary  total  disability  benefits,  and  whether  Respondents  are \nentitled to an offset–are moot and will not be addressed. \n\nSMITH – H305153 \n \n12 \n \nCONCLUSION \n In  accordance  with  the  findings  of  fact  and  conclusions  of  law  set  forth  above, \nthis claim for initial benefits is hereby denied and dismissed. \n IT IS SO ORDERED. \n \n       ________________________________ \n       Hon. O. Milton Fine II \n       Chief Administrative Law Judge","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H305153 RICKY SMITH, EMPLOYEE CLAIMANT ARK. DEPT. OF TRANSP., EMPLOYER RESPONDENT PUBLIC EMPLOYEE CLAIMS, CARRIER/TPA RESPONDENT OPINION FILED MAY 24, 2024 Hearing before Administrative Law Judge O. Milton Fine II on April 12, 2024, in Forrest City, St. Franc...","fetched_at":"2026-05-19T22:54:43.431Z","links":{"html":"/opinions/alj-H305153-2024-05-24","pdf":"https://www.labor.arkansas.gov/wp-content/uploads/Smith_Ricky_H305153_20240524.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}