{"id":"alj-H305461-2024-03-14","awcc_number":"H305461","decision_date":"2024-03-14","opinion_type":"alj","claimant_name":"Tommy Shelton","employer_name":"City Of Booneville","title":"SHELTON VS. CITY OF BOONEVILLE AWCC# H305461 MARCH 14, 2024","outcome":"granted","outcome_keywords":["granted:2"],"injury_keywords":["back"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/SHELTON_TOMMY_H305461_20240314.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"SHELTON_TOMMY_H305461_20240314.pdf","text_length":16995,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO. H305461 \n \nTOMMY J. SHELTON, EMPLOYEE CLAIMANT \n \nCITY OF BOONEVILLE, EMPLOYER RESPONDENT \n \nARKANSAS MUNICIPAL LEAGUE, CARRIER RESPONDENT \n \n \n OPINION FILED MARCH 14, 2024 \n \n \nHearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Fort Smith, Sebastian \nCounty, Arkansas. \n \nClaimant represented by MICHAEL L. ELLIG, Attorney, Fort Smith, Arkansas. \n \nRespondents represented by MARY K. EDWARDS, Attorney, North Little Rock, Arkansas. \n \n \n STATEMENT OF THE CASE \n  \n On January 23, 2024, the above captioned claim came on for a hearing at Fort Smith, Arkansas. \nA pre-hearing conference was conducted on November 30, 2023, and a pre-hearing order was filed \non  that  same  date. A  copy  of  the  pre-hearing  order with  modifications has  been  marked  as \nCommission’s Exhibit #1 and made 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 \n           2.    The employee/employer/carrier relationship existed on August 14, 2023. \n \n           3.    The respondents have controverted the claim in its entirety.  \nBy agreement of the parties, the issues to be litigated and resolved at the forthcoming hearing \nwere limited to the following: \n1.  Whether claimant sustained a compensable injury on August 14, 2023. \n\nShelton-H305461 \n2 \n \n2. If compensable, the claimant’s average weekly wage. \n3. If compensable, whether claimant is entitled to temporary total disability benefits. \n4. If compensable, whether claimant is entitled to medical benefits. \n5. Attorney’s fees.  \nAll other issues are reserved by the parties. \nThe  claimant contends  that “On or about August 14, 2023, he  stepped  on  a  wire,  and  it \npunctured his shoe and left foot. This wound subsequently became infected and has resulted in the \nneed for medical treatment and has produced temporary total disability beginning on August 16, 2023, \nand continuing through a date yet to be determined. He further contends that his attorney is entitled \nto the statutory attorney’s fees on appropriate benefits.” \nThe respondents contend that “Claimant cannot prove by a preponderance of the evidence \nthat he sustained a compensable injury on August 14, 2023. Claimant cannot prove that his injury was \ncaused by a specific incident and was identifiable by time and place of occurrence.”  \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 \nNovember 30, 2023 and contained in a pre-hearing order filed that same date are hereby accepted as \nfact, as is the stipulation announced at the hearing of this matter. \n 2.    Claimant has met his burden of proof by a preponderance of evidence that he suffered a \ncompensable injury on August 16, 2023.  \n\nShelton-H305461 \n3 \n \n \n3.  Claimant is entitled to temporary total disability benefits beginning August 16, 2023, and \ncontinuing to a date to be determined. \n4. Claimant is entitled to reasonable and necessary medical benefits for his lower left extremity \ninjury. \nFACTUAL BACKGROUND \n           Before any testimony was taken, the parties stipulated that claimant’s average weekly wage was \n$680.80, which yields a temporary total disability rate of $454.00 per week.  \n          Claimant had failed to provide to respondent a copy of the records he intended to introduce as \nrequired  by  the  scheduling  order,  sending  only  the  index to  both  respondent  and  to  the  court. \nRespondent raised an objection to those records being admitted. After claimant’s counsel conferred \nwith his legal assistant, he advised that the email containing those records did not appear in the “sent” \nfolder at his office, and he did not know if it was human error or mechanical error, but the failure to \nprovide the records was an error on his part. Mr. Ellig advised that those records would be helpful in \ndeciding  the  case. Respondent’s  attorney  was  given  the  option  of continuing  the  hearing  or \nwithdrawing her objection. Ms. Edwards advised that she had seen the records in question and wanted \nto proceed with the hearing. The claimant’s records were then received without objection. I appreciate \nthe candor both attorneys showed to the court in addressing this matter.  \nHEARING TESTIMONY  \n \n Claimant  testified  that  in  August  2023, he  was  working  for  the City  of  Booneville  in  the \nSanitation Department. His job consists of operating an automated truck which picked up the trash \ncan and emptied it into the truck bed. He made two trips a week to the landfill approximately fifty \nmiles away from Booneville. When he was not operating the truck, he would work on maintenance \nfor it. Claimant said there was a trough on the truck that caught small items that fell into it and had to \n\nShelton-H305461 \n4 \n \n \nbe  cleaned  out  manually.  Claimant  testified  that the  debris was on  the  ground  because  there  was \nnowhere else to put it. It was necessary for him to walk across the ground where the material had been \ndumped. Over a five-year period, claimant said he found knives, nails, a saw blade, and all sorts of \nsmall stuff that would not compact. The compactor on the truck shoves everything to the front but \nthere  was a  gap  between the  compactor  and  the  truck  where  the materials fell  into  a  trough.  Over \ntime, after enough materials accumulated on the ground, it was removed using a backhoe. Claimant \nestimated  that  the  cleanup  of  the  ground  took  place  maybe  twice  a year.  Claimant  testified  that  he \nwore tennis shoes at work. \n Claimant has been diagnosed as a diabetic for around five to six years and could not feel the \nbottom of his left foot because of neuropathy. On August 16, 2023, claimant felt sick, and noticed on \nAugust 17, 2023, that his foot was infected. Claimant went to the doctor where the foot was x-rayed \nand a piece of wire was discovered in his foot. On August 19, 2023, claimant had an operation, and \nthe metal was removed. He remained in the hospital for two weeks treating the wound. After claimant \nwas discharged from the hospital, he continued to see his treating physician; after six weeks, claimant’s \nleft foot was amputated due to the infection. \n The claimant and his attorney had this exchange: \nQ. (By Mr. Ellig) How do you think you got that wire in your foot? \nA. I stepped on it at work. \n \nQ. And why do you think that? \nA. Because I didn’t go nowhere. I went home, I went to work, you know, and \nI parked the car on the carport, which is concrete. Now if it needed gas, I go \nget gas, but it is still all on concrete. If I stepped on that on concrete, it never \nwent, you know, in my foot like that so, you know, one hundred percent that \nit happened at work. \n \nQ. Were you around any other kind of trash or wires? \nA. No. No, not beside work. \n \nQ. Do you know exactly when it stuck in your foot? \n\nShelton-H305461 \n5 \n \n \nA. No, I don’t know for sure when it was, but  it  was – it  was  around  that \nAugust 17, sometime before then, but I could not tell you when. \n  \n Q. But the medical records show you gave history that the problem with your \n foot started about a week prior to that time when you went to the doctor on \n the seventeenth, you think that’s somewhere in the area? \n A. I think so.  \n \n On cross-examination, claimant said he typically worked alone, and no one saw him step on \nthat piece of metal at work. He admitted he did not know when or exactly where he stepped on the \npiece of metal. He said he did not feel the piece of metal go into his foot. \n The following exchange took place between respondent’s attorney and claimant: \nQ. (By Ms. Edwards) In fact, you do not know for certain that you stepped \non this piece of metal at work? \nA. It’s the only place that I could have- \n \nQ. I understand. \nA. -then. \n \nQ. I am going to need a yes or no from you. You do not know for certain \nyou stepped on this piece of metal at work? \nA. No. \n Claimant  testified  that  he  did not  see  the  specific  piece  of  metal  that  is  represented  by \nRespondent’s Non-Medical Exhibit page 3. Claimant conceded the first time he saw it was when the \ndoctor showed him a picture of it. Claimant agreed that he wears tennis shoes to places other than \nwork, such as the gas station, the post office, and from his house to get into the truck. \n Claimant related that he had neuropathy of his left foot and had been diagnosed with diabetes \nprior to this incident. As part of his diabetic care, claimant had regular foot examinations.  \n The following exchange then took place between respondent’s counsel and claimant: \nQ. (By Ms. Edwards) And we talked about shoes a little bit. They were tennis \nshoes,  but did you ever notice any wire in any of your shoes? \nA. No. \n \nQ. Did you ever notice any blood on the socks? \n\nShelton-H305461 \n6 \n \n \n A. No. \n \n Q. And you do your own laundry, right? \n A. Yes. \n \n Q.  And  we  talked  about  neuropathy  a  bit,  but  your  left  foot  could  bleed, \n correct? \n A. Yes. \n \n Q. You just didn’t see any blood there? \n A. Right. \n \n Claimant  agreed  that some  of the  medical records mentioned that  his  left  foot  had  been \nbleeding.  Claimant  admitted  that  in  2022,  he  had  an  infection  on  his  left  foot  that  was  treated  by \nwound debridement and then eventually two toe amputations. Claimant agreed that when he went to \nthe doctor in August 2023, he was unaware that he had stepped on the metal object, but he felt the \nsymptoms of infection, was feeling bad, and noticed an odor coming from his left foot.  \n On redirect-examination, claimant said he did not attribute any of his prior difficulties with \nhis left foot to his job. He said he was comfortable in his own mind that the most likely or probable \nplace that he stepped on the piece of wire was at work. He had not seen any other pieces of wire, \ntrash, debris of any kind around his premises or at the gas station or any other place. While claimant \ndid not see the particular piece of wire that he stepped on, he had seen other pieces of wire in the \ndebris he described earlier. \n Claimant’s supervisor, John Slinker, testified that part of claimant’s job was to wash out trash \nand debris from what he called a trough on the back of the truck. The trash goes on the ground and \nthen is to be picked up in a reasonable amount of time. The truck was washed out at the same place \neach day and material fell to the ground in that place. To perform his job, Mr. Slinker said claimant \nhad to walk through the trash that could have been on the ground for months. Mr. Slinker described \nthe material as anything small enough to fit through a quarter or half-inch gap in the compactor of \n\nShelton-H305461 \n7 \n \n \nthe truck, and that he had seen pieces of wire, nails, and the like in that material on the ground. \n On  cross-examination,  Mr.  Slinker  stated  he  did  not  see  the  injury  and  had  no  personal \nknowledge of when it had taken place. He said there was too much stuff to pick out a specific piece \nof trash. Mr. Slinker said that his only personal knowledge was that Mr. Shelton told him he stepped \non a piece of metal at work. \n Claimant’s sister, Judy Schultz, stated that she had not noticed any wire or other metallic \nmaterials laying around his house. She said that he did not go out much other than to the store, and \nthe post office, and things like that.  \n On cross-examination, Ms. Schultz conceded the only personal knowledge that she had about \nwhether claimant stepped on a piece of metal at work was what he told her. \n While Ms. Schultz’s testimony was largely unhelpful on the issues in this matter, I found all \nthe witnesses to be credible on the matters to which they testified.   \nREVIEW OF THE EXHIBITS \n \n The  extent  of  the  injury  in  this  case  is  not  in  dispute,  and  as  such,  a  detailed  review  of  the \nmedical exhibits is unnecessary. The records before August 2023 show that claimant suffered from \ndiabetes for years, and as he testified, two toes had been amputated on his left foot before the injury \nthat gave rise to this claim.  After the foreign object was removed, the treatment for the infection was \nunsuccessful, and claimant’s left foot was amputated.   \n The non-medical  exhibits  included respondent’s First Report  of  Injury,  which  includes  the \nnotation  that  claimant  was  “unsure  when/what  happened;  metal  in  foot.”    There  was  also  a \nphotograph of the piece of metal that was removed from claimant’s foot; it is laid beside a ruler and \nlooks to be about four inches long, although it is bent at nearly a 90-degree angle, almost in an “L” \nshape.  \n\nShelton-H305461 \n8 \n \n \nADJUDICATION \n \nIn order to prove a compensable injury as the result of a specific incident that is identifiable \nby time and place of occurrence, a claimant must establish by a preponderance of the evidence (1) an \ninjury arising out of and in the course of employment; (2) the injury caused internal or external harm \nto  the  body  which  required  medical services  or  resulted  in  disability  or  death;  (3)  medical  evidence \nsupported  by  objective  findings  establishing  an  injury;  and  (4)  the  injury  was  caused  by  a  specific \nincident identifiable by time and place of occurrence. Odd Jobs and More v. Reid, 2011 Ark. App. 450, \n384 S.W. 3d 630. The medical records provide objective findings that claimant had a problem with his \nfoot that required medical services to remedy, thus satisfying the second and third elements of proof \nas set out above.  \nClaimant was unsure of the precise date that the alleged injury occurred, but that is not fatal \nto a claim, Edens v. Superior Marble & Glass, 346 Ark. 487, 492, 58 S.W.3d 369, 373 (2001): \"Although \nthe  inability  of  the  claimant  to  identify  the  exact  date  of  an  injury  might  be  considered  by  the \nCommission  in weighing the  credibility  of  the  evidence,  the statute  does  not  require  that  the  exact \ndate be identified in order for the injury to be compensable.\" A person without neuropathy would \nhave felt the piece of metal go into his heel. However, claimant is not such a person; I decline to hold \nhim to an impossible standard in that regard.   \nThat  then  leaves the  question  of  whether  claimant  established  by  a  preponderance  of  the \nevidence that he suffered an injury arising out of and in the course of his employment.  “The burden \nof proof for causation is a preponderance of the evidence, which is more likely than not or more than \n50%  probability.” Wal-Mart  Stores,  Inc.  v.  VanWagner,  337  Ark.  443,  990  S.W.2d  522  (1999). I  am \nsatisfied from the testimony of both claimant and Mr. Slinker, claimant’s supervisor, that small pieces \nof wire, nails and other debris were on the ground in the area where claimant worked, and that such \n\nShelton-H305461 \n9 \n \n \ndebris  was  left  there  for  extended  periods  of  time after  the  compactor  was  cleared  after  each  use.   \nClaimant testified that he had to walk across that debris daily, and Mr. Slinker confirmed that was part \nof claimant’s job. As such, I am satisfied that it is more likely than not that claimant stepped on the \npiece of metal that was embedded in his foot while working for respondent, City of Booneville, and \ntherefore,  I  find  that  he  has  established  by  a preponderance  of  the  evidence  that  he  is  entitled  to \nworkers’ compensation benefits for the injury to his left foot beginning on August 16, 2023.   \nORDER \n \nRespondents  are  directed  to  pay  benefits  in  accordance  with  the  findings  of  fact  set  forth \nherein this Opinion. \nAll accrued sums shall be paid in lump sum without discount, and this award shall earn interest \nat the legal rate until paid, pursuant to Ark. Code Ann. § 11-9-809. \nPursuant to Ark. Code Ann. § 11-9-715, the claimant's attorney is entitled to a 25% attorney's \nfee on the indemnity benefits awarded herein. This fee is to be paid one-half by the carrier and one-\nhalf by the claimant. \nAll issues not addressed herein are expressly reserved under the Act. \nRespondent  is  responsible  for  paying  the  court  reporter  her  charges  for  preparation  of  the \ntranscript in the amount of $579.50. \n IT IS SO ORDERED. \n                                                                                              \n_______     \n JOSEPH C. SELF \nADMINISTRATIVE LAW JUDGE","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H305461 TOMMY J. SHELTON, EMPLOYEE CLAIMANT CITY OF BOONEVILLE, EMPLOYER RESPONDENT ARKANSAS MUNICIPAL LEAGUE, CARRIER RESPONDENT OPINION FILED MARCH 14, 2024 Hearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Fort Smith, Sebastian County, Arkansas. ...","fetched_at":"2026-05-19T22:56:30.563Z","links":{"html":"/opinions/alj-H305461-2024-03-14","pdf":"https://labor.arkansas.gov/wp-content/uploads/SHELTON_TOMMY_H305461_20240314.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}