{"id":"alj-H306528-2024-09-18","awcc_number":"H306528","decision_date":"2024-09-18","opinion_type":"alj","claimant_name":"Malak Hussian","employer_name":"Beauty Sensations","title":"HUSSIAN VS. BEAUTY SENSATIONS AWCC# H306528 September 18, 2024","outcome":"denied","outcome_keywords":["denied:1"],"injury_keywords":["shoulder","back","neck","rotator cuff","lumbar","hip","knee"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/HUSSIAN_MALAK_H306528_20240918.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"HUSSIAN_MALAK_H306528_20240918.pdf","text_length":22208,"full_text":"1 \n \nBEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H306528 \n \nMALAK HUSSIAN, EMPLOYEE      CLAIMANT \nVS. \nBEAUTY SENSATIONS, EMPLOYER     RESPONDENT \n \nOPINION FILED SEPTEMBER 18, 2024 \n \nHearing before Administrative Law Judge, James D. Kennedy, on the 13th day of \nAugust 2024, in Little Rock, Arkansas. \n \nClaimant is Pro Se. \nRespondent, who was uninsured at the time of the claimed work-related incident was \nrepresented by Randy Murphy, Attorney at Law, Little Rock, Arkansas. \n \n \nSTATEMENT OF THE CASE \n A  hearing  was  conducted  on  the 13\nth\n day  of August 2024. At  the  time  of  the \nhearing, the primary issue before the Commission was whether the claimant suffered a \ncompensable work-related injury to her left shoulder and lower back and if the injury was \ndetermined to be work related, the issue of reasonable and necessary medical treatment.  \nThe claimant was also asking for temporary total disability. \n The respondent  contended that the  claimant  did  not  sustain  an  injury  within  the \ncourse  and  scope  of  her  employment  at  Beauty  Sensations. The  respondent  further \ncontended that a settlement was reached prior to obtaining representation by an attorney \nand the claimant had been paid an amount of money for a release. The claimant contends \nthat she had been injured on August 23, 2023, while stocking on a lower shelf and became \ndizzy when she stood up due to the extremely hot environment that she was required to \n\n2 \n \nwork in, which caused dizziness that resulted in a fall that injured her left shoulder and \nlower back.  \n A Prehearing Order dated June 25, 2024, provided that the parties stipulated that \nthe  Arkansas Workers’ Compensation Commission had jurisdiction  of  the  within  claim, \nand  that  an  employer/employee  relationship  existed  on  or  about  August  23,  2023, the \ndate the  claimant  contends  she  suffered  a  work-related  injury  to  her  left  shoulder  and \nlower back.         \n The Prehearing Order along with the claimant’s and respondent’s contentions were \nall set out in their respective responses to the Pre-hearing Questionnaire and made a part \nof the record without objection. The claimant, Ms. Malak Hussian, was the sole witness \non  behalf  of  the  claimant. Mr. Yongjin Song  was  the  sole  witness  on  behalf  of  the \nrespondent. From a review of the record as a whole, to include matters properly before \nthe Commission and having had an opportunity to observe the testimony and demeanor \nof  the  witnesses,  the  following  findings  of  fact  and  conclusions  of  law  are  made  in \naccordance with Ark. Code Ann. 11-9-704. \nFINDINGS OF FACT AND CONCLUSSIONS OF LAW \n1.  The Arkansas Workers’ Compensation Commission has jurisdiction over this \nclaim. \n2. That the claimant has failed to satisfy the required burden of proof to show \nthat she sustained a compensable injury to her left shoulder and lower back \non August 23, 2023. \n3. That consequently, all other issues are moot. \n\n3 \n \n4. If not already paid, the respondents are ordered to pay for the cost of the \ntranscript forthwith. \nREVIEW OF TESTIMONY AND EVIDENCE \n The  Pre-hearing  Order  along  with  the  Pre-hearing  questionnaires of the parties \nand respondents exhibit are made part of the record without objection.  \n The  claimant  testified  that she initially went  to  Beauty  Sensations,  not  for  the \npurpose of looking for a job, but to buy merchandise.  As she was checking out, she saw \na sign that stated they were hiring and she then inquired about employment, talking to a \ngentleman named Sam.  She was later contacted by Mr. Yongjim Song.  She was offered \nthe job and trained by Sam.  She “would hand merchandise up” and Sam explained that \ntheir customers were looking  for  hair sold as  a  product placed  into various categories.   \nShe was then instructed to stock a lower shelf, and she went over and “bent down and \nstocked the lowest shelf in alignment with the sunset setting on his business.”  She felt \nthat it was already hot where she was stocking and one of the workers had her own fan.  \nThe next thing that the claimant apparently knew was that she woke up on the floor and \nshe asked if she fell.  She was told “No, Malak, you fainted.”  (Tr. 15, 16) The claimant \nthen  talked  about  accommodation’s required  by the  America  with  Disabilities  Act  and \nstated that she felt she was entitled to them, which was no different than if she had cancer.  \nShe also stated that she was unable to obtain an attorney due to the fact her employer \nfailed to carry workers’ compensation insurance at the time of her fall. She was offered \n$1500.00  by  Mr.  Youngjim Song, which  she did  in  fact receive,  and  she  was  already \nbehind on her bills at the time of the receipt. She went on to testify that she was currently \nwearing a back brace and had to have some stability to even bend down. She did have \n\n4 \n \nhealth insurance and was 63 years old at the time of the hearing.  She also admitted that \nshe was on various medications prior to her injury while working for the respondent, but \nnot to the degree that she was now. She also admitted that she was currently drawing \nsocial security disability. (Tr. 17 – 22) \n Under cross examination, the claimant responded that she had about 24 hours of \ncollege at UALR and was attending Shorter College last year. She had stopped working \n33 years ago after four people invaded her home and blew her children’s brains out and \nshe stopped working due to trauma. Her last job before working for the respondent, was \nabout  25  years  ago, when  she  worked for  the  UAMS  Academic  Affairs  Department  in \n1998. She also admitted  receiving  active  medical  treatment  during  that  period  for  her \ndepression and mental issues. She testified there was a five-year period after the death \nof  her  children where she  could not remember  anything.  (Tr.  23 – 25) She  had  been \ntreated for post traumatic stress disorder off and on for a number of hears after the death \nof her children.  She also admitted to treatment for pain, and that she had been involved \nin a motor vehicle accident back in 2023, when her neighbor rear ended her, resulting in \nback and neck issues, and where she received an injection in her neck.  She also admitted \nthat  she  had  not  worked  for  an  income  since  her  claimed  work-related  injury  but  had \nperformed   volunteer   work   for   Watershed.      She   also   admitted   to   submitting   job \napplications for work but had not applied for any in the last few months.  She also admitted \nto  a  past  right  shoulder  surgery,  which  was  the  result  of  a  rotator  cuff  tear  in  2019.  \nAdditionally, she admitted to a lower back surgery between her L4 and L5 by Dr. David \nBumpass, but stated she was no longer being treated for this. (Tr. 26 – 28)  She was also \nreceiving  psychiatric  treatment  by  Dr.  Raymond  Molden,  with  the  last  visit  being  about \n\n5 \n \nSeptember 18, 2023, seeing Dr. Moulden on a regular basis for the purpose of medication \nrefills  due  to  the  post  traumatic  stress  disorder.  (Tr.  29)    The  claimant  admitted  taking \nPrazosin and Diazepam since the traumatic event involving her children. (Tr.30) \n The  claimant  was also  questioned about the  medical  records  providing  that  she \nstarted having pain in her neck and back as far back as 2010, and she responded that \nshe was not certain as to the date. (Tr. 31, 32)  The claimant was also questioned about \nher “chronic back pain” and she responded “well, if you’re mentioning 2010 to 2023, that \nis considered in the dictionary as chronic.”  She did not know how long she suffered from \nspinal stenosis. (Tr. 33) \n The claimant also admitted to an acute myocardial infarction, and congestive heart \nfailure, along with a trauma-induced grand mal seizure. Her rotator cuff tear was due to a \nseizure resulting from substance abuse. (Tr. 35) \n In regard to settling her claim, the claimant stated that Mr. Song had called her.  \nShe stated she knew that he was in trouble and that he attempted to resolve it with the \n$1500.00.  She went on to state that it was not a settlement but that she was accepting \nassistance in regard to her bills. (Tr. 37, 38) \n In  regard  to  the  actual  incident,  the  claimant  stated  she  remembered  squatting \ndown and placing items on the lower shelf and when she stood up, she became dizzy \nand that’s when Mr. Sam told her that she had fainted.  She remembered hitting her \nbuttocks  when  she  fell.    She  went  on  to  state  that  she  was  asked  to  sit  down  for  15 \nminutes, stayed until her shift was over, drove herself home, and felt that MEMS should \nhave  been  called.    She  also  stated  that  she  did  not  have  the  mind  to  request  medical \ntreatment.   She returned to work the next day. (Tr. 43 - 45) \n\n6 \n \nThe  claimant  stated  that  she  had  injured  her  spine  in  the  fall,  her  shoulder  and  lower \nlumbar. (Tr. 53) \n The  claimant  was  then  allowed  to  testify  on  what  would  amount  to  direct.    She \ntalked about the cowardice of so-called men and businessmen “trying to make my getting \nhelp a problem.”  She also talked about the horrible traumatic incident involving her \nchildren. (Tr. 55, 56)  She went on to state that she was being trained on what to do with \neach type of hair and the various categories the hair would be placed in.  She was handing \nSam hair samples and knickknack items when she became dizzy after standing up.  She \nhad never previously fainted. (Tr. 57) \n On  recross,  the  claimant  was  asked about  the  video  she  viewed  in the hearing, \nand she responded that it had been “finagled with, because I bent down to the lower shelf \nand stocked merchandise on my knees.” (Tr. 60, 61)    \n The claimant called no additional witness.  Mr. Yougjin Song, the owner of Beauty \nSensations then testified.  He stated that he was a resident of Little Rock and a native of \nSouth Korea, who previously had worked at UALR as an assistant professor in the speech \ndepartment.  He admitted not having workers’ compensation insurance in the past but \nhad obtained it due to having several employees.  He stated he was not aware of the fact \nthat workers’ compensation was required by the state of Arkansas. (Tr. 64 – 66)   He \nadmitted hiring the claimant and stated the claimant could only work 25 hours a week. \n(Tr. 69)  He also admitted the claimant was injured on her second day of work, and that \nhe was not present at the time of the accident.  He also testified that the air conditioning \nwas automatically set at 75 degrees.  After the claimant’s injury, he was told by Sam that \nshe stayed for several more hours and then went home.  She returned to work the next \n\n7 \n \nday.   He  went  on  to  state  that  she  told him that  she  had  forgotten  to  take  her  blood \npressure medicine.  Additionally, it was over 100 degrees outside and was too cold inside \nor whatever.  (Tr. 70 – 72)  He terminated her employment because he thought that the \n“environment would be too harsh for her.  She would not be fit to work in the retail business \nbecause, you know, it’s - - it would be difficult.”  He also admitted that he had entered into \nan agreement with the claimant where he would pay her $1500.00.  He had taken a “legal \nsample form” and prepared the affidavit for the payment of the money. (Tr. 73, 74) \n Under  cross  examination,  Mr.  Song  admitted  that  he  had  been  in  business  for \nabout 18 years.  (Tr. 78) \n In regard to documents entered into the record, medical records from Proper Pain \nSolutions were admitted as a joint admission.  The reports are in reverse chronological \norder.  A report dated March 28, 2024, provided that the claimant presented with right hip \nand knee pain.  The pain started in 2010.  “The onset of her pain was not associated with \nan incident.”  “She experiences pain all of the time.”  There was an assessment of low \nback  pain,  spondylosis  with  radiculopathy,  lumbar,  post  laminectomy,  cervicalgia  and \nmyalgia, along with right and left knee pain.  The claimant had been seen previously at \nProper Pain Solutions on February 29, 2024, and also February 1, 2024.  The February \n1, 2024, report from Proper Pain Solutions provided there had been an 85% improvement \nof the claimant’s low back pain and that the pain had started in 2010.  Additionally, the \nreport provided that the claimant had an altercation with a family member on January 30, \n2024.  Additionally, the report also provided that the pain started in 2010, and no initiating \nincident was noted.   \n\n8 \n \nThe claimant had also presented to Proper Pain Solutions on December 28, 2023, \nwith  similar  findings,  but  had  received  a  knee  injection on  that  date.  The  claimant  had \npreviously  presented  to  Proper  Pain  Solutions  on  November  27,  2023,  and  this  report \nprovided the claimant had presented with increased neck pain on the left side.  Again, the \nreport provided there was not an initiating incident.  The claimant had also presented to \nProper Pain Solutions on November 2, 2023, with the report providing for increased knee \npain, with the report again providing that the pain started in 2010.  The claimant previously \nhad presented  to  Proper  Pain  Solutions  on  August  31,  2023.    This  report  provided  for \nincreased pain in the neck and left shoulder.  Again, the report provided for no initiating \nincident.  The report mentioned that the claimant fell at work about a week earlier and \nhad bruised her right and left arm and had a lot of pain in the left shoulder.  A MRI was \ndiscussed. (Jt. Ex. 1, P. 1 – 32) \nDr.  Senthill  K.  Raghavan reported  on September  14,  2023,  that  the  claimant \nwanted  to  discuss  an  injury  to  the  left  shoulder  that  occurred from a  fall  at  work  after \nfainting.  The claimant stated she could not raise her left arm or turn her neck to the right. \n(Jt. Ex. 1, P. 33 – 37) \nA report from the UAMS Orthopedic Spine Clinic dated October 27, 2023, provided \nthat  the  claimant  had  presented  today  for  a  follow-up  after  a  L4-L5  robotic  TLIF  on \nJanuary  26,  2022.    The  claimant  had  stated  per  the  report  that  her  pain  had  initially \nworsened following her fall but that it now was settled some. (Jt. Ex. 1, P. 38 - 40) \nThe claimant had presented to Dr. Senthill K. Raghavan on November 11, 2022.  \nThis report  provided  for  chronic  post-traumatic  stress  syndrome  with  congestive  heart \nfailure, along with intervertebral disc degeneration. (Jt. Ex. 1, P. 41 – 45) \n\n9 \n \nA  report  from  the  Arkansas  Psychiatric  Clinic  on  or  about  September  18,  2023, \nprovided that the claimant was suffering from anxiety and PTSD. (Jt. Ex.1 A) \nA letter to the Commission dated May 29, 2024, requesting a subpoena be issued \nfor the work video footage of August 23, 2023, involving the fall by the claimant. (Jt. Ex. \n2)  \nThe affidavit that was discussed in the testimony which provided for the payment \nof $1500.00 to the claimant was admitted into the record. (Resp. Ex. 1)  A letter signed \nby  the  claimant  and  addressed  to  who  it  may  concern  provided  that  the  claimant  had \nwithdrawn her Workers’ Compensation Claim against Beauty Sensations. (Resp. Ex. 2)  \nA letter that provided the work history of the claimant  was also admitted into the record. \n(Resp. Ex. 3) \nAdditionally, a proffered exhibit from the claimant which was something akin to a \npromotional document was proffered which provided for what would be assumed to be \nsome type of possible treatment modality.  This exhibit was not found to be admissible.  \n(Clamant Proffer 1) Finally, a short video was viewed which provided that the claimant \nstood up  and  then  slumped  down  and  this  video  corresponded  with  testimony that  the \nclaimant had fainted or suffered from Syncope.   \nDISCUSSION AND ADJUDICATION OF ISSUES \nIn the present matter, the claimant testified that after stocking product while squatted or on her knees, \nshe fainted after standing up, due to the high temperatures of the work environment, and the fall resulted \nin  an  injury  to  her  left  shoulder  and  lower  back.  In  addition,  there  was  testimony  that  the  claimant \nreceived $1500.00 from the respondent for a settlement involving her workers’ compensation \nclaim after signing an affidavit of settlement.   \n\n10 \n \nIn  regard  to the  proposed settlement,  A.C.A.  11-9-108 provides that “no agreement to \nwaive his or her right to compensation shall be valid, and no contract, regulation, or device \nwhatsoever shall operate to relieve the employer or carrier in whole or in part, from any \nliability created by this chapter ......  Consequently, the affidavit does not allow the \nrespondent to enter into a so-called settlement and does not control the outcome of this \nmatter.   \n However,  the  claimant  still  has  the  burden  of  proof  in  regard  to  the  issue  of \ncompensability.  More specifically, in regard to the issue of compensability, the claimant \nstill has the burden of proving by a preponderance of the evidence, that she is entitled to \ncompensation benefits for the injuries to her left shoulder and low back.  In determining \nwhether the claimant has sustained her burden of proof, the Commission shall weigh the \nevidence impartially, without giving the benefit of the doubt to either party.  Ark. Code Ann \n11-9-704.  Wade v. Mr. Cavanaugh’s, 298 Ark. 364, 768 S.W. 2d 521 (1989).  Further, \nthe Commission has the duty to translate evidence on all issues before it into findings of \nfact.   Weldon  v.  Pierce  Brothers  Construction  Co.,  54  Ark.  App.  344,  925  S.W.2d  179 \n(1996). \n Under Arkansas Workers’ Compensation  law,  a  compensable  injury  must  be \nestablished  by medical  evidence  supported by  objective  findings  and  medical opinions \naddressing  compensability  and  must  be  stated  within  a  degree  of  medical  certainty. \nSmith-Blair,  Inc.  v.  Jones,  77  Ark.  App.  273,  72  S.W.3d  560  (2002).    Speculation  and \nconjecture cannot substitute for credible evidence.  Liaromatis v. Baxter County Regional \nHospital,  95  Ark.  App.  296,  236  S.W.3d  524  (2006).    More  specifically,  to  prove  a \ncompensable injury, the claimant must establish by a preponderance of the evidence: (1) \n\n11 \n \nan injury arising out of and in the course of employment; (2) that the injury caused internal \nor external harm to the body which required medical services or resulted in disability or \ndeath; (3) medical evidence supported by objective findings, as defined in A.C.A. 11-9-\n102 (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 \nthe requirements for establishing the compensability of the claim, compensation must be \ndenied.  Mikel v. Engineered Specialty Plastics, 56 Ark. App. 126, 938 s.W.2d 876 (1997). \nIn the present matter, there is no doubt that the claimant suffered from previous horrific \noccurrences and psychological trauma in her life which are truly unfathomable and that \nclearly  have had  a  detrimental  effect  on  her  life,  prior  to  the  incident  in  question  here.  \nHowever, even with the prior horrific occurrences, the claimant still must comply with the \napplicable workers’ compensation law and regulations in regard to satisfying the burden \nof  proof  for  her  claim.  The  injury  which  the  claimant  seeks  benefits for must  be \nestablished  by  medical  evidence  supported  by  objective  findings and these findings \ncannot come under the voluntary control of the patient. A.C.A. 11-9-102 (16).  It is also \nimportant  to  note  that  the  claimant’s  testimony  is  never  considered  uncontroverted.  \nLambert v. Gerber Products Co.  14 Ark. App. 88, 684 S.W.2d 842 (1985).  \n Here the primary evidence and testimony in regard to the claimant’s injuries comes \nfrom the claimant.  No medical evidence provided that her lower back and left shoulder \nproblems were due to a work-related incident.  Many medical records provided that the \nclaimant had suffered from issues involving low back pain and pain in her neck for years.  \nThe  pain  was  never  associated  with  a specific incident per  the  medical  reports. There \n\n12 \n \nwas  some  medical  that  mentioned a work-related fall, but  the  reports  did  not  specify \nspecifically the cause of the fall or the pain in the lower back and shoulder.   \n The claimant clearly fainted or suffered from Syncope, the medical term for a brief \nloss of consciousness that’s followed by a quick and full recovery, after a review of the \nwork-related video.    This  event  occurred after the  claimant assisted in  stocking  in  a \nsquatted position and then standing.  There are no medical reports that connect the event \nof the claimant’s Syncope to a work-related injury.  Syncope can occur just by jumping \nout of bed  quickly.    Testimony  provided  and was  believable,  that although  the  incident \noccurred on a hot August day, the air conditioner was automatically set for 75 degrees.  \nEven if the temperature was above 75 degrees, that alone is found to not be significant \nto satisfy the required issue of proof.  It is clear the claimant strongly feels she is entitled \nto  workers’  compensation  benefits  due  to  her  episode  of  Syncope,  but  there  is  no \nalternative but to apply the Arkansas law in regard to her workers’ compensation claim.  \nConsequently, without giving the benefit of the doubt to either party, there is no alternative \nbut to find the claimant has failed to prove by a preponderance of the evidence that she \nsuffered a compensable work - related injury under the Arkansas Workers’ Compensation \nAct.   Consequently, all other  issues are  moot. If not  already paid,  the  respondents  are \nordered to pay the cost of the transcript forthwith. \nIT IS SO ORDERED.   \n       ___________________________ \n        JAMES D. KENNEDY \n      Administrative Law Judge","preview":"1 BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H306528 MALAK HUSSIAN, EMPLOYEE CLAIMANT VS. BEAUTY SENSATIONS, EMPLOYER RESPONDENT OPINION FILED SEPTEMBER 18, 2024 Hearing before Administrative Law Judge, James D. Kennedy, on the 13th day of August 2024, in Little Rock, Arkansas. Claimant is Pro Se. R...","fetched_at":"2026-05-19T22:49:13.901Z","links":{"html":"/opinions/alj-H306528-2024-09-18","pdf":"https://labor.arkansas.gov/wp-content/uploads/HUSSIAN_MALAK_H306528_20240918.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}