{"id":"alj-H307345-2026-04-28","awcc_number":"H307345","decision_date":"2026-04-28","opinion_type":"alj","claimant_name":"Josh West","employer_name":"Diamond Pet Foods","title":"WEST VS. DIAMOND PET FOODS AWCC# H307345 April 28, 2026","outcome":"granted","outcome_keywords":["granted:7","denied:1"],"injury_keywords":["back","fracture"],"pdf_url":"https://www.labor.arkansas.gov/wp-content/uploads/WEST_JOSH_H307645_20260428.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"WEST_JOSH_H307645_20260428.pdf","text_length":39339,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H307345 \n \nJOSH W. WEST, EMPLOYEE CLAIMANT \n \nDIAMOND PET FOODS, EMPLOYER                RESPONDENT \n \nARCH INDEMNITY INSURANCE CO, CARRIER/                             RESPONDENT \nSEDGWICK CLAIMS MANAGEMENT SERVICES, INC., TPA \n \n \nOPINION FILED 28 APRIL 2026 \n \n \nHeard before Arkansas Workers’ Compensation Commission Administrative Law Judge \nJayO. Howe on 26 February 2026 in McGehee, Arkansas. \n \nMr. Daniel A. Webb, Daniel A. Webb, P.A., appeared for the claimant. \n \nMr. Guy Alton Wade, Friday, Eldredge & Clark, LLP, appeared for the respondents. \n \nI. STATEMENT OF THE CASE \n \n A Prehearing Order was filed on 4 June 2025 and admitted to the record as \nCommission’s Exhibit No 1. The parties agreed to the following at the hearing: \nSTIPULATIONS \n \n 1. The Arkansas Workers' Compensation Commission (the Commission) has \n  jurisdiction over this claim. \n \n 2. The employee/employer/carrier-TPA relationship existed at all relevant  \n  times, including on 12 November 2023. \n \n 3. The respondents have controverted this claim in its entirety. \n \nISSUES TO BE LITIGATED \n \n Following an amendment at the hearing, the parties agreed to litigate the following \nIssues: \n 1. Whether the claimant sustained a compensable injury by specific incident to  \n  his right index finger.  \n \n 2. Whether the claimant is entitled to medical benefits and expenses   \n  associated with his alleged compensable injury. \n\nJ. WEST- H307645 \n2 \n \n \n 3.  Whether the claimant is entitled to permanent partial disability (PPD)  \n  benefits.\n1\n \n \n 4. Whether the claimant is entitled to benefits under Ark. Code Ann. § 11-9-505. \n \n5. Whether the claimant is entitled to an award of an attorney’s fee under Ark. \nCode Ann. § 11-9-715. \n \n All other issues are reserved. \n \nCONTENTIONS \n \n The parties’ Contentions were set out in their respective Prehearing Questionnaire \nresponses and were amended at the hearing to read: \nClaimant \n \nClaimant contends that he sustained serious injuries to his right finger, \nand Respondents have refused to accept the claim as compensable. \nClaimant contends entitlement to all benefits related to his finger \ninjury, including medical benefits and expenses and PPD. All other \nissues are reserved.  \n \nRespondents \n \nRespondents contend that the claimant did not sustain a compensable \ninjury to his right index finger within the course and scope of his \nemployment. Claimant was intoxicated at the time of the accident. As a \nresult, the claim is not compensable, and the respondents are not \nresponsible for the payment of any medical and/or indemnity benefits.  \n \nII. FINDINGS OF FACT AND CONCLUSIONS OF LAW \n \nHaving reviewed the record as a whole, including the evidence summarized below, \nand having heard testimony from the claimant and the witnesses, observing their \n \n1\n While the parties anticipated at the time of the prehearing conference providing an \nagreed-upon average weekly wage amount at the hearing, they had not yet made that \ndetermination on the date of the hearing. They agreed that they would revisit the matter as \nmay be necessary in the event benefits were awarded in this Opinion and that the \napplicable average weekly wage determination need not be included as an Issue to be \nlitigated at the hearing. [TR at 23.] \n\nJ. WEST- H307645 \n3 \n \ndemeanor, I make the following findings of fact and conclusions of law under Ark. Code \nAnn. § 11-9-704: \n1. The Commission has jurisdiction over this claim. \n \n2. The Stipulations as set forth above are reasonable and are hereby accepted. \n \n3. The claimant has proven by a preponderance of the evidence that he   \n  sustained a compensable injury by specific incident to his right index finger. \n \n4. The claimant has proven by a preponderance of the evidence that he is \nentitled to medical benefits associated with his compensable injury. He has \nfurther proven by a preponderance of the evidence that all of the treatment \nthat he received for his compensable right index finger injury and that is in \nevidence was reasonable and necessary. \n \n5. The claimant has proven by a preponderance of the evidence that he is  \n  entitled to a 45% (forty-five percent) permanent impairment rating to the  \n  right index finger and PPD benefits consistent with the same. \n \n6. The claimant has failed to prove by a preponderance of the evidence that he  \n  is entitled to benefits under Ark. Code Ann. § 11-9-505. \n \n7. The claimant has proven by a preponderance of the evidence that he is \nentitled to attorney’s fees under Ark. Code Ann. § 11-9-715 on the indemnity \nbenefits awarded in this Opinion. \n \nIII. ADJUDICATION \nThe stipulated facts as outlined above are reasonable and accepted. It is settled that \nthe Commission, with the benefit of being in the presence of a witness and observing their \ndemeanor, determines a witness’ credibility and the appropriate weight to accord their \nstatements. Wal-Mart Stores, Inc. v. VanWagner, 337 Ark. 443, 990 S.W.2d 522 (1999). A \nclaimant's testimony is never considered uncontroverted. Nix v. Wilson World Hotel, 46 \nArk. App. 303, 879 S.W.2d 457 (1994). The determination of a witness' credibility and how \nmuch weight to accord to that person's testimony are solely up to the Commission. White v. \nGregg Agricultural Ent., 72 Ark. App. 309, 37 S.W.3d 649 (2001). The Commission must \nsort through conflicting evidence and determine the true facts. Id. In so doing, the \nCommission is not required to believe the testimony of the claimant or any other witness \n\nJ. WEST- H307645 \n4 \n \nbut may accept and translate into findings of fact only those portions of the testimony that \nit deems worthy of belief. Id. \nSUMMARY OF THE EVIDENCE \n The claimant, Mr. Ricky Snow, and Mr. Cody Gipson testified at the hearing. The \nrecord consists of the hearing transcript, which includes following exhibits: Commission’s \nExhibit No 1 (the 4 June 2025 Prehearing Order and a subsequent rescheduling letter); \nClaimant’s Exhibit No 1 (one index page and 29 pages of medical and billing records); \nClaimant’s Exhibit No 2 (a one-page billing statement dated 6 February 2026); Respondents’ \nExhibit No 1 (one index page and 15 pages of employment and incident records); \nRespondents’ Exhibit No 2 (one index page and eight pages of medical records); \nRespondents’ Exhibit No 3 (one disc with an incident investigation report (on PowerPoint) \nand two short video files showing machinery); and Respondents’ Exhibit No 4 (the 14 \nJanuary 2026 cover letter that accompanied the respondents’ exchange of hearing exhibits). \n Claimant’s Testimony \n The claimant is thirty-seven years old with an associate’s degree in aviation \nmaintenance and applied sciences. The respondent-employer operates a pet food \nmanufacturing facility in Dumas, Arkansas. The claimant had been employed there for \napproximately three years before his accident. He worked in machinery maintenance at the \ntime relevant to this claim. \n On 12 November 2023, the claimant and his coworker Colby Russell were called to \nwork on a malfunctioning “bagger” machine that was overfilling bags with dog food. The \nmachine controlled the amount of dog food that was dropped into the bags via a roller \nsystem that opened and closed over a spout atop of the bags. Debris could get caught \nbetween the rollers and prevent them from completely closing and stopping the downward \nflow of dog food. The claimant and Mr. Russell each had a roller and spout set to clear on \n\nJ. WEST- H307645 \n5 \n \nthe machine. Mr. Russell cleared out his set and then pressed a button that actuated the \nroller system while the claimant still had his hand between two rollers. The end of the \nclaimant’s right index finger was smashed when the rollers closed together.  \n The claimant testified that his direct supervisor was not present at the time but that \nRicky Snow, the plant’s production supervisor, was notified of the accident and injury. The \nclaimant also spoke with Charlotte Coakley, who happened to be standing nearby, \nimmediately after the incident. He recalled saying, “Ms. [Coakley], I think I lost my finger. \nI need some help.” [TR at 34.] According to the claimant, Ms. Coakley looked around for \nsome first aid supplies, including in the women’s restroom while he waited outside the door; \nbut she did not find anything. \n The claimant recalled Mr. Russell driving him the short distance to Delta Memorial \nHospital within 10 minutes or so of the accident. He submitted to an after-accident urine \ndrug screen while in the emergency department. Bill Hale, the respondent-employer’s \nsafety manager, signed off on the sample as part of the sample collection and custody \nprocedure. The test later returned negative for any intoxicants. Consistent with that result, \nthe claimant denied being intoxicated or under the influence of any illicit substance around \nthe time of the accident.  \n As for the emergency treatment provided to the claimant, he stated that the doctor \n“gave me a shot and filed down the bone and put the skin over it and sewed it up.” [TR at \n39.] He testified that after a follow-up visit a few days later, he was authorized to return to \nwork with restrictions. He was, however, terminated upon his return to work.  \nQ:  All right. Any explanation for the termination? \nA:  They told me they thought I was lying about my drug screening. And \nwhen I... that’s it. \nQ:  But once again, you peed in the cup at the hospital that the nurse gave \nyou, correct? \nA:  Yes, sir. \n \n\nJ. WEST- H307645 \n6 \n \n[TR at 44-45.] He testified that he could have performed his work duties had he been \nallowed to return to the job. Explaining some of the ongoing difficulties that he now \nexperiences as a result of the injury, he stated, “especially when it comes to writing \nanything. I used to have decent handwriting, now it’s atrocious. Tightening bolts, if you try \nto reach in and grab one, I just have a problem with it, but I’m getting used to it now.” [TR \nat 45.] \n The claimant said that he was aware that the respondents reviewed security footage \nthat showed him taking a plastic product sample cup out of his maintenance bag on the \nmorning of his accident. He explained, though, that the cups were regularly used by him \nand others at the plant. “I probably had two or three, four more of them in it. They held \nbolts, cotter pins. If you [were] working on something, you know, you want to put your bolts \nin there, or your nuts. And I mean, that’s just what we used...” [TR at 47.] \n On cross-examination, the claimant acknowledged talking with Mr. Snow after the \naccident. He could not recall the specifics of their discussion, but denied that he stated any \nconcerns about after-accident drug testing. He understood that his termination was for a \n“lack of trust.” [TR at 71.] He denied obtaining any further medical treatment after his \nfollow-up and release to return to work with restrictions. After some confusion about what \nwas owed by whom for the medical treatment that he had received, the claimant presented \na medical bill for the emergency medical treatment showing that he was being held \nresponsible on an uncollected balance of approximately $4,000. That billing statement was \nintroduced into the record as Claimant’s Exhibit No 2. \n The claimant recalled discussing his past drug history at his deposition. And he \nacknowledged that he regularly uses marijuana for symptoms related to a PTSD diagnosis. \nHe maintained at his deposition and again at the hearing that he was not concerned about \nbeing able to pass a drug test after the accident. \n\nJ. WEST- H307645 \n7 \n \n Mr. Ricky Snow \n The witness testified that he is a production supervisor for the respondent-employer \nand that he was working on the day of the claimant’s accident. Before the claimant was \ntaken to the hospital, Mr. Snow recalled: \nA:  And he said that he cut his finger – cut his finger off. So I said, “Okay, \nJosh, well, we need to go to the hospital,” and he said, “No,” he can’t go. And I \nsaid, “Well, why can’t you go?” And he said, because he was dirty. \nQ:  Meaning what? \nA:  As far as taking the drug test. \nQ:  Okay. \nA:  That he was dirty. But I said, I mean, you still have to go to the hospital. \nQ:  Okay. So he told you he wasn’t going to be able to pass the mandatory \ndrug test— \nA:  Yes, sir. \nQ:  -- following this event? \nA:  Yes, sir. \n \n[TR at 90-91.] He testified, however, on cross-examination that he did not witness any signs \nof intoxication from the claimant that day. As a supervisor, Mr. Snow had encountered \nemployees before that he observed as possibly being intoxicated while at work and was \nfamiliar with the process for addressing those concerns. He did not take any such action \nrelating to the claimant because that brief discussion aside, he did not have any reason to \nbelieve that the claimant was impaired while at work. Mr. Snow explained that he was \nlater suspended for not immediately disclosing that conversation to the respondent-\nemployer. \n Mr. Cody Gibson \n Mr. Gibson testified that he works as a corporate safety director for the respondent-\nemployer and that he is based out of their offices in Meta, Missouri. He has remote access \nto the Dumas facility’s security camera system from his office and reviewed the available \nvideo footage as part of his after-accident review. He recalled viewing the claimant and \nothers moving around the facility after the accident. He believed that their activity was \n\nJ. WEST- H307645 \n8 \n \nsuspicious and noted, among other things, that Mr. Russell emptied a water bottle into a \ngarbage can and then carried the empty bottle to his truck before taking the claimant to the \nhospital. \n On the nature of the accident, he testified that the proper procedure for cleaning the \nbag filler would have involved using an air hose and wand instead of one’s hands to clear \nout debris. According to his testimony, Mr. Gibson prepared a PowerPoint report [Resp. Ex. \nNo 1 at 1-9] after completing his accident investigation. Several employment actions were \ntaken by the respondent-employer as a result of his investigation. \nQ:  Now, after your investigation and after this PowerPoint was put together, \nthere were several employees that were punished as a result of this, is that \nright? \nA:  That is correct. \nQ:  In fact, [the claimant] was even let go? \nA:  Yes. \nQ:  Along with Charlotte? \nA:  Yes. \nQ:  Along with Colby? \nA:  Yes. \nQ:  And along with Cory? \nA:  Correct. \nQ:  And even Ricky over here got suspended for a few weeks after that, is that \nright? \nA:  Yeah, that’s correct. Yeah. \nQ:  Okay. And the reason they were terminated of the reason for the \nsuspension was because of the circumstances of what the videos revealed that \noccurred immediately following this accident? \nA:  That is correct. Based on the statements we received, and then, \nconfirming with the camera system, there were definitely lies that were told. \nQ:  Okay. And based upon—you were present for Mr. Snow’s testimony that \nthe claimant, actually, told him that he was not gonna be able to pass the \ndrug test. \nA:  That’s my understanding. That’s correct. \nQ:  And that was consistent with the statements that you have? \nA:  Yes, sir. \n \n[TR at 119-120.] He went on to say that he believed the claimant and others attempted to or \nat least intended to provide the claimant with a urine sample that he could submit as his \nown. He further acknowledged, however, that he was not familiar with Quest Diagnostics’ \n\nJ. WEST- H307645 \n9 \n \nprocedures for conducting employee drug tests and that he did not have any reason to \nquestion the competency of the hospital staff who were involved in collecting the claimant’s \nurine sample. He also confirmed that Mr. Russell was not drug tested after the accident \nand that the accident would likely not have occurred but for Mr. Russell mistakenly \nactivating the machine while the claimant was still working on it. \n Mr. Gibson also explained some confusion about the billing for the claimant’s \nmedical treatment. He stated that the claimant had been advised that the charges would be \ntaken care of by the respondents. But when Mr. Gibson inquired with the hospital about \nthe patient’s balance, he was told that nothing was owed. The respondents then took no \nfurther action regarding the payment of the claimant’s treatment. \n Claimant’s Rebuttal Testimony \n The claimant again denied telling Mr. Snow that he would not be able to pass a drug \ntest. He also again denied using any marijuana around the time of his accident. \nQ:  Did you tell this fella [Mr. Snow] that you couldn’t take the test because \nyou were dirty? \nA:  No, sir. \nQ:  Were you smoking pot at that time in your life? \nA:  No, sir. No, sir. \n \n[TR at 130.] \n Medical Records and Documentary Evidence \n The Emergency Room Note authored by Dr. David Chambers includes, in part, the \nfollowing: \nCHIEF COMPLAINT: Cut the tip off his right index finger. \nHISTORY OF PRESENT ILLNESS: The patient was at work at \nDiamond and got his finger caught in a bagging machine and it \nbasically gnawed the end of his index finger off on the right. He has \nsome exposed bone and most of the bone from the distal inner \nphalangeal joint is missing. \nEXTREMITIES: He is missing most of the tip of his index finger on the \nright with estimated 80% of the bone missing on the distal inner \nphalangeal distally on the right index finger. He has a very small area \n\nJ. WEST- H307645 \n10 \n \nof cuticle intact. The remainder of the nail is totally gone. He does not \nhave the remaining finger with him. He said he felt like [the] machine \nate it. \nPROCEDURE NOTE: The finger was prepped with Betadine. A digital \nnerve block with approximately 6 mL of 2% blue lidocaine was placed \nbetween the distal and middle intraphalangeal joints. Thus, digital \nnerve block of the finger. Rongeurs were used to remove bone fragments \nand smooth the bone. The tip was then closed over the exposed bone \nwith four stiches of 2-0 Monofilament nylon. Tetanus shot was given. \nCleaned and dressed. He tolerated the procedure well. I will see him \nback Tuesday in the office but sooner if he has any problems. \n \n An X-ray report included the following findings: \nThere is amputation of the soft tissues of the distal second digit. There \nis a fracture through the mid shaft of the distal phalanx with the distal \nfragment displaced anteriorly and inferiorly. The DIP and PIP joints \nare maintained. There are no radiopaque foreign bodies. \n \n An Emergency Department Nurse’s Note included, in part, the following narrative: \nPt presents to ER with amputation past first joint on right index finger. \nPt’s finger cleaned with normal saline. Pt tolerated well. Pt prepped for \nsuturing... Applied 1 non-adherent bandage to right index finger, \nwrapped with 2 kerlix secured in place with tape and covered with 1” \ntubular gauze. Pt tolerated well. \n \n Per his discharge instructions, the claimant presented for a follow-up visit on 14 \nNovember 2023. He was authorized to return to work the next day with the use of his right \nhand restricted.  \n The drug screening paperwork indicates that the testing was being requested on \nbehalf of the respondent-employer by Ricky Snow and Bill Hale. Mr. Hale signed the form. \nThe specimen collection form indicates that the claimant’s sample was provided at the \nappropriate temperature. And the urine screening Result Report dated 14 November 2023 \nprovided a negative result verification. \n A billing statement dated 21 January 2025 showed total charges from Delta \nMemorial Hospital in the amount of $6,580.10; it appeared to represent a zero-balance \nowed at the time. The full balance appeared to be covered by Blue Cross on 2 January 2025. \n\nJ. WEST- H307645 \n11 \n \n[Cl. Ex. No 1.] \n The claimant appeared at the hearing with a billing statement that he had recently \nreceived from Delta Memorial Hospital. The statement was dated 6 February 2026 and \nrepresented an adjusted balance owed of $3,948.06 against an original balance of $6,580.10, \nwith no insurance payments having been applied to the account. \n[Cl. Ex. No 2.] \n The Employer Discharge Statement indicated that the claimant was terminated on \n20 November 2023 for “tampering with post-accident urine sample” and that his actions \nviolated company policy as a “fraudulent act or breach of trust.” The Termination Form \nlisted Gross Misconduct and indicated that he could not be rehired without consulting a \nplant manager or human resources. \n The respondent-employer’s Injury/Incident form indicated that the claimant \nsustained a “Disabling Injury” to his “(R) 2\nnd\n distal finger.” The Corrective Action section \nprovided that “Both workers are being assigned LOTO Refresher Training.” It also stated, \n“Maintenance Manager has met with crews & discussed one-man tasks and need for proper \ncommunication.” The form was signed by Mr. Hale on 13 November 2023. \n Mr. Hale then signed a disciplinary report dated 20 November 2023 that indicated \nthat the claimant was being terminated for “fraudulent activity after accident on 11/12.” \n[Resp. Ex. No 1.] \nDISCUSSION \n A. THE CLAIMANT HAS PROVEN BY A PREPONDERANCE OF THE   \n  EVIDENCE THAT HE SUSTAINED A COMPENSABLE INJURY TO  \n  HIS RIGHT INDEX FINGER. \n \nTo prove a compensable injury by specific incident, the claimant must establish four \n(4) factors by a preponderance of the evidence: (1) that the injuries arose out of and in the \ncourse of his employment; (2) that the injuries caused internal or external harm to the body \n\nJ. WEST- H307645 \n12 \n \nthat required medical services or resulted in disability or death; (3) that the injuries are \nestablished by medical evidence supported by objective findings, which are those findings \nwhich cannot come under the voluntary control of the patient; and (4) that the injuries were \ncaused by a specific incident identifiable by time and place of occurrence. Mikel v. \nEngineered Specialty Plastics, 56 Ark. App. 126, 938 S.W.2d 876 (1997). The employee has \nthe burden of proving by a preponderance of the evidence that he sustained a compensable \ninjury. Ark. Code Ann. § 11-9-102(4)(E)(i). Preponderance of the evidence means the \nevidence having greater weight or convincing force. Metropolitan Nat'l Bank v. La Sher Oil \nCo., 81 Ark. App. 269, 101 S.W.3d 252 (2003). If a claimant fails to establish by a \npreponderance of the evidence any of the requirements for establishing a compensable \ninjury, compensation must be denied. Mikel, supra. \n\"Objective findings\" are those findings which cannot come under the voluntary \ncontrol of the patient. Ark. Code Ann. § 11-9-102(16)(A)(i). The requirement that a \ncompensable injury must be established by medical evidence supported by objective \nfindings applies only to the existence and extent of the injury. Stephens Truck Lines v. \nMillican, 58 Ark. App. 275, 950 S.W.2d 472 (1997). \n The facts in this case clearly support a finding that the claimant met his burden in \nproving all four of the requisite factors listed above. There is no dispute that the claimant \nwas injured while at work and while performing ordinary work duties. The end of his right \nindex finger was amputated in a sudden accident. The treatment records contained \nobjective findings of this and show that medical treatment was required for the injury. The \nrecord plainly supports a finding that the claimant has satisfied the basic elements of a \ncompensable injury to his right index finger by specific incident.  \n\nJ. WEST- H307645 \n13 \n \nBut the respondents argue that they have appropriately denied liability for the \nclaimant’s otherwise compensable claim under Ark. Code Ann. § 11-9-102(4)(B)(iv), which \nprovides: \n(B) “Compensable injury” does not include: \n \n. . .  \n \n(a) Injury where the accident was substantially occasioned by the use of \nalcohol, illegal drugs, or prescription drugs used in contravention of \nphysician's orders. \n \n(b) The presence of alcohol, illegal drugs, or prescription drugs used in \ncontravention of a physician's orders shall create a rebuttable presumption \nthat the injury or accident was substantially occasioned by the use of alcohol, \nillegal drugs, or prescription drugs used in contravention of physician's \norders. \n \n(c) Every employee is deemed by his or her performance of services to have \nimpliedly consented to reasonable and responsible testing by properly trained \nmedical or law enforcement personnel for the presence of any of the \naforementioned substances in the employee's body. \n \n(d) An employee shall not be entitled to compensation unless it is proved by a \npreponderance of the evidence that the alcohol, illegal drugs, or prescription \ndrugs utilized in contravention of the physician's orders did not substantially \noccasion the injury or accident. \n \n If after-accident testing reveals that a claimant had illegal drugs in his system \naround the time of a workplace accident, a presumption attaches that the accident or injury \nin question was “substantially occasioned” by his use of such drugs. He must then rebut \nthis with proving by a preponderance of the evidence that the illegal drugs did not \nsubstantially occasion the injury or accident. Ark. Code Ann. § 11-9-102(4)(B)(iv)(d). The \nphrase \"substantially occasion\" requires that there be a direct causal link between the use \nof the drugs and the injury for the injury to be noncompensable. Waldrip v. Graco Corp., \n101 Ark. App. 101, 270 S.W.3d 891 (2008) (citing ERC Contractor Yard & Sales v. \nRobertson, 335 Ark. 63, 977 S.W.2d 212 (1998)). Ordinarily, this defense is raised when an \nafter-accident drug screening results positive for the presence of some illicit substance in a \n\nJ. WEST- H307645 \n14 \n \nclaimant’s system around the time of testing. That is not the case here, however. The \nmedical evidence in the record clearly shows that the urine sample tested after the \nclaimant’s accident returned a negative result—i.e., there were no illicit drugs or \nmetabolites found in the urine sample that was provided by the claimant.  \n Still, the respondents argue that the adverse inference should be applied in this case \nand cause the presumption to attach. They are unable to rely on any controlling authority \nor persuasive case law in support of this notion, though. They instead encourage that the \ntotality of the circumstances (the claimant’s supposed statement to Mr. Snow and the \nallegedly suspicious behaviors of others that were described in their internal after-accident \nreport) support assigning the adverse inference even in the absence of a positive drug \ntesting result.  \n I disagree. The record evidence shows that the claimant produced a urine sample in \nthe emergency department at the request of the respondent-employer. Appropriate \npersonnel then signed-off on the chain of custody of the sample (which showed an in-range \ntemperature at the time of collection); and the sample returned a negative result for any \nintoxicants. The respondents presented no actual, direct evidence attacking the validity of \nthe sample or showing that the collection procedure was somehow inconsistent with normal \nsample collection protocols. If there had been actual evidence of an adulterated sample or of \nthe claimant refusing the timely collection of a sample, an argument could be better made \nthat he was in violation of his implied consent to testing and thus potentially depriving the \nrespondents of their ability to present evidence, at least by way of testing results, that the \naccident was substantially occasioned by the use of some illicit substance. But just as there \nis no actual evidence of the claimant adulterating the sample he provided in the emergency \ndepartment or refusing or delaying his urine sample collection, there is no evidence of any \npre-accident behavior that might suggest that the accident (which, again, would very likely \n\nJ. WEST- H307645 \n15 \n \nnot have happened but for the mistaken and unsafe actions of another) was substantially \noccasioned by the use of an intoxicant. \n Even assuming, arguendo, that claimant did voice a concern about “something” \nshowing up in his system, a claimant’s worried mind is not a substitute for the actual \n“presence of alcohol, illegal drugs, or prescription drugs” that is contemplated by the \napplicable statute. Timely after-accident testing is the accepted means for determining \nwhether some intoxicant is actually present around the time of an accident. That testing \nhappened in this case in a nearby emergency department shortly after the accident. To \ndisregard the facially valid testing results in the absence of any direct evidence \nundermining the validity of the testing would require engaging in speculation and \nconjecture. And that, I cannot do. Dena Constr. Co. v. Herndon, 264 Ark. 791, 575 S.W.2d \n155 (1979). \n The claimant has thus proven by a preponderance of the evidence that as a result of \nthe workplace accident on 12 November 2023, he suffered a compensable injury by specific \nincident to his right index finger. He is, therefore, entitled to the benefits that ought to be \nassociated with the same. \n B. THE CLAIMANT HAS PROVEN BY A PREPONDERANCE OF   \n  THE EVIDENCE THAT HE IS ENTITLED TO MEDICAL BENEFITS  \n  ASSOCIATED WITH HIS COMPENSABLE INJURY \n \n Employers must promptly provide medical services which are reasonably necessary \nin connection with compensable injuries. Ark. Code Ann. § 11-9-508(a). However, injured \nemployees have the burden of proving by a preponderance of the evidence that medical \ntreatment is reasonably necessary. Patchell v. Wal-Mart Stores, Inc., 86 Ark. App. 230, 184 \nS.W.3d 31 (2004). What constitutes reasonable and necessary medical treatment is a fact \nquestion for the Commission, and the resolution of this issue depends upon the sufficiency \nof the evidence. Gansky v. Hi-Tech Engineering, 325 Ark. 163, 924 S.W.2d 790 (1996). A \n\nJ. WEST- H307645 \n16 \n \nclaimant may be entitled to additional treatment even after her healing period is ended, if \nthat treatment is geared towards management of a compensable injury. Patchell, supra. An \nemployee who has sustained a compensable injury is not required to offer objective medical \nevidence in order to prove that he is entitled to additional treatment. Ark. Health Ctr. v. \nBurnett, 2018 Ark. App. 427, 558 S.W.3d 408.  \n The claimant has met his burden on proving that he suffered a compensable injury \nby way of the partial amputation of his right index finger. He is, therefore, entitled to \nreasonable and necessary medical benefits associated with that compensable injury. The \ntreatments discussed at the hearing were reasonable and necessary in relation to the \nclaimant’s compensable injury. The testimony showed some confusion around the charges \nand billing associated with the claimant’s treatments (received during one hospital \nemergency department visit on 12 November 2023 and one follow-up clinic visit on 14 \nNovember 2023) associated with his compensable injury. The respondents are liable for the \ncosts and associated benefits related to those treatments, including any out-of-pocket \nreimbursement and mileage owed the claimant. \n C. THE CLAIMANT HAS PROVEN BY A PREPONDERANCE OF THE   \n  EVIDENCE THAT HE IS ENTITLED TO PERMANENT PARTIAL   \n  DISABILITY BENEFITS. \n \nAn injured worker must prove by a preponderance of the evidence that he is entitled \nto an award for a permanent physical impairment. Any determination of the existence or \nextent of physical impairment shall be supported by objective and measurable findings. \nArk. Code Ann. § 11-9-704(c)(1). Under Ark. Code Ann. § 11-9-522(g) and 11 CAR § 25-129 \n(previously our Rule 099.34), the Commission has adopted the American Medical \nAssociation (AMA) Guides to the Evaluation of Permanent Impairment (4th ed. 1993) for the \nassessment of anatomical impairment(s).   \n\nJ. WEST- H307645 \n17 \n \nPermanent benefits shall be awarded only upon a determination that the \ncompensable injury was the major cause of the disability or impairment. Ark. Code Ann. § \n11-9-102(4)(F)(ii)(a). “Major cause” means “more than fifty percent (50%) of the cause,” and \na finding of major cause shall be established according to the preponderance of the \nevidence.  Ark. Code Ann. § 11-9-102(14)(A). Preponderance of the evidence means evidence \nhaving greater weight or convincing force. Metropolitan Nat’l Bank v. La Sher Oil Co., 81 \nArk. App. 269, 101 S.W. 3d 252 (2003). \n Based on the preponderance of the evidence presented in this claim, the claimant’s \ncompensable injury to his right index finger was the major cause of his impairment. The \nclaimant did not seek additional treatment after his release with restrictions and \nsubsequent termination from employment. Nor did he separately seek an impairment \nrating from a physician relating to the partial amputation of his finger. The claimant is \nthus seeking a rating assignment from the Commission based on the evidence presented at \nthe hearing. In Jones v. Wal-Mart Stores, Inc., 100 Ark. App. 17, 262 S.W.3d 630 (2007), our \nCourt of Appeals held that the Commission has the authority to assess its own impairment \nrating in the absence of a physician-assigned rating. See also Polk County v. Jones, 74 Ark. \nApp. 159, 47 S.W.3d 904 (2001); Johnson v. General Dynamics, 46 Ark. App. 188, 878 \nS.W.2d 411 (1994). \n The medical records provide objective evidence to support a permanent impairment \nrating. I find those records to be credible. The Commission is authorized to accept or reject \na medical opinion and is authorized to determine its medical soundness and probative \nvalue. Poulan Weed Eater v. Marshall, 79 Ark. App. 129, 84 S.W.3d 878 (2002). \nApproximately 80% (eighty percent) of the distal inner phalangeal (DIP) bone was missing \nafter accident. The physician then removed more exposed bone before closing the skin over \nthe remaining tissues. Based on the records and my visualization of the claimant’s healed \n\nJ. WEST- H307645 \n18 \n \ninjury, I am assigning a 45% (forty-five percent) permanent impairment for the amputation \nof the right index finger at the DIP joint, which corresponds to a 9% (nine percent) \nimpairment of the hand, and to an 8% (eight percent) impairment of the upper extremity, \nand to a 5% (five percent) impairment of the whole person. See AMA Guides, Figures 16-3, \n16-5, Table 16-4. Because the claimant has proven by a preponderance of the evidence that \nhe is entitled to a permanent impairment rating in relation to his compensable injury, he is \nentitled to PPD benefits consistent with the same. \n D. THE CLAIMANT HAS FAILED TO PROVE BY A PREPONDERANCE OF  \n  THE EVIDENCE THAT HE IS ENTITLED TO BENEFITS UNDER   \n  ARK. CODE ANN. § 11-9-505. \n \n The claimant contends that he is entitled to benefits under Ark. Code Ann. § 11-9-\n505(a)(1) (“Section 505”) for the respondent-employer's refusal to return him to his prior job. \nIn order to receive benefits pursuant to Section 505, a claimant has the burden of proving \nby a preponderance of the evidence the following: (1) that he sustained a compensable \ninjury; (2) that there is suitable employment within his physical and mental limitations \navailable with the employer; (3) that the employer refused to return him to work; and (4) \nthat the employer's refusal to return him to work was without reasonable cause. Torrey v. \nCity of Fort Smith, 55 Ark. App. 226, 934 S.W. 2d 237 (1996); Nat'l. Cmty. Coll. v. \nCastaneda, 2018 Ark. App. 458, 588 S.W. 3d 911. \n The claimant cannot meet his burden for benefits under Section 505. He argued, \nessentially, that because he did not screen positive for drugs, he should not have otherwise \nbeen terminated for anything related to his accident and injury. In relying on this general \nnotion, he failed to meet his burden on elements (2) and (4), above.  \n First, he did not put on evidence of the availability of suitable work within his \nphysician-ordered “no use of right hand” restrictions after his release. Instead, and \nsomewhat to the contrary, the note releasing him to return to work with restrictions states \n\nJ. WEST- H307645 \n19 \n \nthat he “was adamant that he didn’t need to return to work” and that he was “going to seek \ntreatment by another physician.” [Cl. Ex. No 1 at 21.] The claimant did not present any \nevidence of any light duty or one-hand-only maintenance work that would have been \navailable upon his (apparently reluctant) return to work. \n But even if he had produced some evidence of unsuccessful efforts to return him to \navailable work, element (4) would remain fatal to his claim. The respondents testified at \nlength about their belief that the claimant and others acted dishonestly and in violation of \ncompany policies in the aftermath of the accident. The after-accident investigation findings \nresulted in the termination of several employees. Mr. Gibson explained that the involved \nemployees were believed to be “[l]ying, not being truthful,” and that “there was just reason \nto believe that they were adamantly lying... [when] supervisors on the floor cannot trust \nyou, then, that’s not someone that we, typically, want to employ.” [TR at 120-121.] Given \nthat several serious employment actions were taken after the review of the accident, I \ncannot find that the respondent-employer acted without reasonable cause in their decision \nto terminate the claimant’s employment or in any subsequent refusal on their part to \nreturn him to work. Because the claimant has failed to prove by a preponderance of the \nevidence all of the required elements for benefits under Section 505, his claim for the same \nmust fail. \n E. THE CLAIMANT HAS PROVEN BY A PREPONDERANCE OF THE   \n  EVIDENCE THAT HE IS ENTITLED TO AN ATTORNEY’S FEE. \n \n Because the claimant has proven an entitlement to indemnity benefits, he is also \nentitled to an attorney’s fee consistent with Ark. Code Ann. § 11-9-715. \nIV.  CONCLUSION  \n The claimant has proven that he suffered a compensable injury by specific incident \nto his right index finger, that he is entitled to medical benefits associated with that \n\nJ. WEST- H307645 \n20 \n \ncompensable injury, and that he is entitled to PPD benefits consistent with a 45% (forty-\nfive percent) permanent impairment rating to the right index finger. He has failed, \nhowever, to prove that he is entitled to benefits under Ark. Code Ann. § 11-9-505. All issues \nnot made part of this litigation have been reserved.  \n The respondents are directed to provide benefits accordingly. Any accrued amounts \nshall be paid in a lump sum without discount, and this award shall earn interest at the \nlegal rate until paid. Ark. Code Ann. § 11-9-809. See Couch v. First State Bank of Newport, \n49 Ark. App. 102, 898 S.W.2d 57 (1995). The claimant’s attorney is entitled to a twenty-five \npercent (25%) fee on the benefits awarded herein. One-half (1/2) of the fee is to be paid by \nthe claimant, and one-half (1/2) of the fee is to be paid by the respondents, consistent with \nArk. Code Ann. § 11-9-715. See Death & Permanent Total Disability Trust Fund v. Brewer, \n76 Ark. App. 348, 65 S.W.3d 463 (2012). \nSO ORDERED. \n      ________________________________ \n       JAYO. HOWE \n       ADMINISTRATIVE LAW JUDGE","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H307345 JOSH W. WEST, EMPLOYEE CLAIMANT DIAMOND PET FOODS, EMPLOYER RESPONDENT ARCH INDEMNITY INSURANCE CO, CARRIER/ RESPONDENT SEDGWICK CLAIMS MANAGEMENT SERVICES, INC., TPA OPINION FILED 28 APRIL 2026 Heard before Arkansas Workers’ Compensation Commission...","fetched_at":"2026-05-19T22:30:20.039Z","links":{"html":"/opinions/alj-H307345-2026-04-28","pdf":"https://www.labor.arkansas.gov/wp-content/uploads/WEST_JOSH_H307645_20260428.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}