{"id":"alj-H307385-2024-06-05","awcc_number":"H307385","decision_date":"2024-06-05","opinion_type":"alj","claimant_name":"Paul Shelly","employer_name":null,"title":"SHELLY VS. R BARTEL, INC.AWCC# H307385June 5, 2024","outcome":"granted","outcome_keywords":["granted:7"],"injury_keywords":["fracture","back"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/SHELLY_PAUL_H307385_20240605.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"SHELLY_PAUL_H307385_20240605.pdf","text_length":20959,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO.  H307385 \n \nPAUL SHELLY, Employee                                                                              CLAIMANT \n \nR BARTEL, INC., Employer                                                                      RESPONDENT \n \nSTATE AUTO INSURANCE COMPANIES, Carrier                                  RESPONDENT                                                                  \n \n \n \n OPINION FILED JUNE 5, 2024 \n \nHearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Fort Smith, \nSebastian County, Arkansas. \n \nClaimant represented by EDDIE H. WALKER, JR., Attorney, Fort Smith, Arkansas. \n \nRespondents represented by MICHAEL E. RYBURN, Attorney, Little Rock, Arkansas. \n \n \n STATEMENT OF THE CASE \n  \n On May 13, 2024, the above captioned claim came on for hearing at Fort Smith, \nArkansas.    A  pre-hearing  conference  was  conducted  on March  27,  2024 and  a  pre-\nhearing  order  was  filed  on  that  same  date.    A  copy  of  the  pre-hearing  order  has  been \nmarked as Commission’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 the \nwithin claim. \n 2.     The  employee/employer/carrier  relationship  existed  among  the  parties  on \nNovember 3, 2023. \n 3.   The claimant was earning sufficient wages to entitle him to compensation at \nthe weekly rates of $743.00 for total disability benefits and $557.00 for permanent partial \n\nShelly – H307385 \n \n2 \n \ndisability benefits. \n At the pre-hearing conference the parties agreed to litigate the following issues: \n1.  Compensability of injury to claimant’s left big toe on November 3, 2023. \n2. Related medical benefits. \n3. Temporary total disability benefits from November 4, 2023 through February 2,  \n2024. \n4. Permanent partial disability benefits. \n5. Attorney’s fee. \nThe claimant contends he sustained a compensable injury when he broke his toe \nas a result of a job related incident on November 3, 2023 and that as a result he developed \ncomplications in his left big toe that resulted in the necessity of that toe being amputated.  \nClaimant contends he is entitled to temporary total disability benefits from November 4, \n2023  until  February  2,  2024  and  reasonably  necessary  medical  treatment.    Claimant \ncontends he is entitled to permanent disability benefits because of the amputation of  his \nbig toe.  Claimant contends his attorney is entitled to an appropriate attorney’s fee.  \nThe  respondents  contend  the  claimant  was not  injured  at  work  on  November  3, \n2023.  The claimant had a diabetic ulcer on his left big toe prior to November 3, 2023.  He \nallegedly stumped the left toe at work but there is no proof that an injury occurred due to \nthat  incident.   The  claimant broke  the  same toe  about  one  year  prior  to  the  incident  at \nwork.  The toe was later amputated due to the diabetic foot infection and osteomyelitis.  \nThe claimant also had a right foot pressure injury that was treated at the same time.  The \nright foot was not injured at work.  The major cause of any permanent impairment is not \nthe incident at work.  \n\nShelly – H307385 \n \n3 \n \n From a review of the record as a whole, to include medical reports, documents, \nand other matters properly before the Commission, and having had an opportunity to hear \nthe testimony of the witness and to observe his demeanor, the following findings of fact \nand conclusions of law are made 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 \non March 27, 2024 and contained in a pre-hearing order filed that same date are hereby \naccepted as fact. \n 2.   Claimant has met his burden of proving by a preponderance of the evidence \nthat he suffered a compensable injury to his left great toe on November 3, 2023. \n 3.      Respondent  is  liable  for payment  of all  reasonable  and  necessary  medical \ntreatment  provided  in  connection  with  claimant’s  compensable  left  great  toe  injury.  \nRespondent is not liable for payment of any medical treatment associated with claimant’s \nright foot. \n 4.   Claimant has proven by a preponderance of the evidence that he is entitled to \ntemporary total  disability  benefits  beginning November 4, 2023  and  continuing  through \nFebruary 2, 2024. \n 5.   Claimant has met his burden of proving by a preponderance of the evidence \nthat he is entitled to permanent partial disability benefits for the loss of the great toe in the \namount of 32 weeks.  A.C.A. §11-9-521(a)(12). \n 6.  Twenty-five percent (25%) of the indemnity benefits payable to claimant are to \nbe withheld and forwarded to the appropriate agency for payment of claimant’s past due \n\nShelly – H307385 \n \n4 \n \nchild support.  A.C.A. §11-9-110(d). \n 7.   Respondent has controverted claimant’s entitlement to all unpaid indemnity \nbenefits. \n \n FACTUAL BACKGROUND \n Claimant began working for respondent as a fiber technician, installing fiber optic \ncable, on February 22, 2023.  Claimant’s job duties required him to install fiber optic cable.  \nClaimant testified that on November 3, 2023, he was in the process of carrying some fiber \noptic cable to a trailer when his left foot struck an underground concrete vault.  Claimant \ntestified that he paused his work momentarily before regathering himself and continuing \nto work.  Claimant estimated that after this incident he was on his feet for an additional \nsix hours. \n Claimant testified that he did not arrive at home until approximately 10:00 p.m. on \nthe night of November 3, 2023.  It was after arriving at  home that he determined that he \nhad injured his left toe.   \n  Q And how did you determine – how did you first \n  realize that your toe was actually injured? \n \n  A Well, just by feeling, you know.  After it happened, \n  I didn’t take my boot off or nothing.  I continued to work. \n  When I got home that night, I took my boot off and I had \n  seen some swelling in it and it was turning colors.   \n \n   And I just got in the shower and kind of started \n  feeling a little bit feverish and took some ibuprofen and \n  went to bed.  And I got up the next morning and it had \n  swollen even bigger, so that is when I decided to go to \n  the emergency room. \n \n \n Claimant went to the emergency room on November 4, 2023, where he was seen \n\nShelly – H307385 \n \n5 \n \nby Dr. Seiter, a podiatrist who had previously treated claimant for foot issues.  Claimant \nwas diagnosed as having suffered a fractured great left toe with a severe infection.  On \nNovember 5, 2022, claimant underwent surgery which consisted of an amputation of the \nleft great toe and a right foot full thickness wound excision. \n As a result of this injury and surgery, claimant was taken off work by Dr. Seiter.  \nClaimant  testified  that  he  was  released  to  return  to  work  by  Dr.  Seiter  on  February  2, \n2024, and he returned to work for respondent on February 5, 2024.   \n Claimant has filed this claim contending that he suffered a compensable injury to \nhis  left  great  toe  while  working  for  respondent  on  November  3,  2023.    He  requests \npayment  of  temporary  total  disability  benefits,  permanent  partial  disability  benefits, \npayment of medical benefits, and a controverted attorney fee. \n \nADJUDICATION \n Claimant  contends  that  he  suffered  a  compensable  injury  to  his  left  big  toe  on \nNovember 3, 2023, when he struck his left foot against an underground concrete vault.  \nClaimant’s claim is for a specific injury identifiable by time and place of occurrence.  In \norder 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 \nevidence (1) an injury arising out of and in the course of employment; (2) the injury caused \ninternal  or  external  harm  to  the  body  which  required  medical  services  or  resulted  in \ndisability or death; (3) medical evidence supported by objective findings establishing an \ninjury; and (4) the injury was caused by a specific incident identifiable by time and place \nof occurrence.  Odd Jobs and More v. Reid, 2011 Ark. App. 450, 384 S.W. 3d 630. \n\nShelly – H307385 \n \n6 \n \n After reviewing the evidence in this case impartially, without giving the benefit of \nthe  doubt  to  either  party,  I  find  that  claimant  has  met  his  burden  of  proving  by  a \npreponderance of the evidence that he suffered a compensable injury to his left great toe \non November 3, 2023.   \n First, I find that claimant met his burden of proving that his injury arose out of and \nin  the  course  of  his  employment  and  that  the  injury  was  caused  by  a  specific  incident \nidentifiable by time and place of occurrence.  As previously noted, claimant testified that \non  November  3,  2023,  he  was  working  for  the  respondent  and  was  in  the  process  of \npulling  on  some  fiber  optic  cable  when  he  struck  his  left  foot  against  a  concrete  vault.  \nClaimant testified that he paused for a period of time before continuing his job activities.  \nWhen claimant got home that night and took his boot off he discovered that his left toe \nhad swelling and was turning colors.  The next morning the swelling had increased and \nhe sought medical treatment. \nThe  documentary  evidence  introduced by  the  claimant  contains  an  investigative \nreport performed by Douglas Renard, the Director of Safety and Fleet Operations for the \nrespondent.  Renard’s report basically collaborates claimant’s statements regarding the \naccident.  To that point, there is no indication that claimant was not working for respondent \nat the time this injury occurred or that he was not engaged in employment services.  To \nthe contrary, I find based upon claimant’s testimony as well as the remaining evidence \nthat claimant has met his burden of proving by a preponderance of the evidence that his \ninjury  arose  out  of  and  in  the  course  of his employment and  that  it  was  the  result  of  a \nspecific incident identifiable by time and place of occurrence. \n I also find that claimant has proven that his injury caused internal harm to his body \n\nShelly – H307385 \n \n7 \n \nthat  required  medical  services  or  resulted  in  disability  and  that  he  has  offered  medical \nevidence  supported  by  objective  findings  establishing  an  injury.    With  respect  to  these \nissues, it is important to review claimant’s prior problems with his feet.  The medical \nrecords indicate that on June 6, 2023, claimant presented to the emergency room for right \nfoot  erythema  with  right  foot  diabetic  ulcers.    Claimant  was  subsequently evaluated  by \nDr.  Seiter  on  June  8,  2023 and  he indicated that  claimant  was  having  moderate  pain \noverlying wound sites of the plantar bilateral first metatarsal heads, right greater than left.  \nDr. Seiter’s diagnosis of the claimant’s condition included a pressure ulcer of the right \nfoot, stage 3; pressure injury of toe of left foot, stage 2; pressure ulcer of toe of right foot, \nstage 2; Type 2 diabetes; and left foot pain.   The medical records indicate that claimant \ncontinued to be evaluated by Dr. Seiter for treatment involving both his left and right foot \nover the course of the next few months.   That treatment primarily consisted of cleansing \nthe feet with soap and water and applying antibiotics with protective dressing. \n In the report dated September 9, 2023, Dr. Seiter indicated: \n  Patient additionally demonstrates resolvement of \n  previous ulceration underlying the plantar aspect \n  left hallux.   \n \n \n Dr. Seiter’s diagnosis of the claimant no longer mentioned any pressure injury of \na toe on the claimant’s left foot at that time.  The resolvement of the left hallux issues was \nalso noted by Dr. Seiter in his report of October 17, 2023.  All of this occurred before the \nincident on November 3, 2023.   \n It is also important to note that Dr. Seiter answered various questions proposed to \nhim  in  a  letter  dated  May  1,  2024.    The  first  question  that  Dr.  Seiter  addressed  was \n\nShelly – H307385 \n \n8 \n \nwhether the claimant revealed to him that he had a work-related injury.  In response to \nthat question, Dr. Seiter indicated that claimant did not reveal a work-related injury to him.  \nInstead, he stated that his recollection was that claimant had an infected ulceration of the \nleft great toe and that this was a new finding.  However, a report of a work-related injury \nis reflected in the notes of Nurse McKenzie dated November 4, 2023.  Specifically, Nurse \nMcKenzie stated: \n  Pt presents to ED via POV with c/o L toe pain.  Pt \n  states he stumped his toe yesterday on concrete  \n  and woke up this morning to it being severely swollen, \n  painful, and leaking fluid with sores on L big toe.  Pt \n  states this morning L leg was red and inflamed \n  radiating up the leg to the groin area.   \n \n \n Thus,  claimant  did  report  a  work-related  injury  at  the  time  he  initially  sought \nmedical treatment at the emergency room on November 4, 2023. \n Dr. Seiter also indicated that claimant gave a history of having fractured  his left \ngreat toe over a year ago before November 3, 2023, and that he had never sought medical \nattention.  Claimant testified that he had informed Dr. Seiter that he thought he had broke \nhis toe a year to a year and a half ago, but had been informed that there was nothing that \ncould be done for a broken toe.   \n Regardless of whether claimant had previously suffered a fracture to his left toe, it \nis the opinion of Dr. Seiter that claimant’s amputation of the left big toe resulted from the \ninjury which occurred on November 3, 2023.  In response to questions posed to him, Dr. \nSeiter indicated in his report of May 1, 2024: \n   \n  2.   Did the claimant already have a pre-existing cellulitis/ \n  osteomyelitis condition of the toe? \n\nShelly – H307385 \n \n9 \n \n \n  No, but he had reported swelling ever since a previous fracture. \n \n  3.  The claimant told you he broke the left big toe 1 to \n  1.5 years previously and never went to the doctor.  The  \n  x-rays and MRI showed a broken toe.  Is it likely that the \n  broken toe was due to the previous accident and not the \n  incident on 11/3/2023? \n \n  It is unlikely that the previously noted left great toe fracture \n  was not the cause of infection and ulceration prior to the \n  incident on 11/3/2023 as patient had no history of infection \n  to this area in previous evaluations. \n \n  4.   What is the medical consequences of stumping the  \n  left toe on 11/3/2023? \n \n  In this situation it resulted in an ulcer formation that ultimately \n  led to infection of the bone requiring partial left hallux amputa- \n  tion. \n \n  5.   What is the major cause of the amputation of the left \n  big toe? \n \n  Diabetes?  Secondary contributing factor \n \n  Cellulitis?  Secondary contributing factor \n \n  Osteomyelitis?  Primary contributing factor \n \n  The injury at work?  Primary causative factor \n \n  6.  Is it likely that that osteomyelitis developed overnight \n  between 11/3/2011 (sic) and 11/4/2023. \n \n  Review of chart indicates patient was previously on IV anti- \n  biotics for infection about the right foot.  Given limited informa- \n  tion regarding injury or left great toe and date of injury it is \n  difficult to ascertain as to timeframe for involvement of the \n  osteomyelitis. \n \n \n Thus, according to the opinion of Dr. Seiter, claimant’s injury at work was the \nprimary factor in the claimant’s need for amputation of his left big toe.  I find that Dr. \n\nShelly – H307385 \n \n10 \n \nSeiter’s opinion is entitled to great weight. \n Based upon the opinion of Dr. Seiter as well as the remaining evidence presented \nin  this  case,  I  find  that  claimant  has  proven  that  his  injury  caused  internal  harm  to  the \nbody that required medical services and resulted in disability.  I also find that claimant has \noffered medical  evidence  supported  by objective  findings establishing  an  injury.    Here, \ntesting revealed a fractured toe as well as an infection which resulted in the amputation \nof the left great toe.   \n Based on the foregoing evidence, I find that claimant has met his burden of proving \nby a preponderance of the evidence that he suffered a compensable injury to his left great \ntoe on November 3, 2023.   \n Respondent  is  liable  for  payment  of  all  reasonable  and  necessary  medical \ntreatment provided in connection with claimant’s compensable injury.  This includes the \nsurgical procedure performed by Dr. Seiter to amputate claimant’s left great toe.  With \nrespect to this issue, I note that in addition to the amputation of claimant’s left great toe, \nDr. Seiter also performed a wound excision on the claimant’s right foot on November 5, \n2023.    Respondent  is  not  liable  for  payment  of  any  medical  benefits  associated  with \nclaimant’s right foot. \n I also find that claimant has proven by a preponderance of the evidence that he is \nentitled to temporary total disability benefits beginning November 4, 2023 and continuing \nthrough February 2, 2024.  The injury to claimant’s left great toe is a scheduled injury.  A \nclaimant  who  suffers  a  scheduled  injury  is  entitled  to  temporary  total  disability  benefits \nduring  their  healing  period  or  until  they  return  to  work.    A.C.A.  §11-9-521(a); Wheeler \nConstruction Company v. Armstrong, 73 Ark. App. 146, 41 S.W. 3d 822 (2001).  Here, \n\nShelly – H307385 \n \n11 \n \nclaimant was taken off work by Dr. Seiter beginning on November 4, 2023, and he did not \nrelease  claimant  to  return  to  work  until  February  2,  2024,  according  to  claimant’s \ntestimony.  I find that claimant’s testimony is credible and entitled to great weight and \ntherefore  find  that  claimant  is  entitled  to  temporary  total  disability  benefits  beginning \nNovember 4, 2023 through February 2, 2024.   \n I also find that claimant has proven by a preponderance of the evidence that he is \nentitled to permanent partial disability benefits for the loss of his great toe in the amount \nof 32 weeks.  Claimant’s surgery resulted in the total amputation of his left great toe which \naccording to A.C.A. §11-9-521(a)(12) would entitle him to payment of permanent partial \ndisability benefits in an amount equal to 32 weeks.  With respect to this issue, I find that \nclaimant’s compensable injury was the major cause of his permanent impairment. \n Claimant  testified  at  the  hearing  that  he  owes  back  child  support.    Pursuant  to \nA.C.A.  §11-9-110(d)  up  to  25%  of  weekly  compensation  benefits  may  be  withheld  for \npayment of past due child support.  Accordingly, I find that 25% of the indemnity benefits \npayable  to  claimant  are  to  be  withheld  and  forwarded  to  the  appropriate  agency  for \npayment of claimant’s past due child support. \n \nAWARD \n Claimant has met his burden of proving by a preponderance of the evidence that \nhe suffered a compensable injury to his left great toe on November 3, 2023.  Respondent \nis  liable  for  payment  of  all  reasonable  and  necessary  medical  treatment  provided  in \nconnection with claimant’s compensable left great toe injury.  Respondent is not liable for \npayment of any medical benefits provided for claimant’s right foot.  Claimant is entitled to \n\nShelly – H307385 \n \n12 \n \ntemporary total disability benefits beginning November 4, 2023, and continuing through \nFebruary  2,  2024.    Claimant  is  entitled  to  permanent  partial  disability  benefits  in  an \namount equal to 32 weeks for the amputation of his left great toe.  Twenty-five percent \n(25%) of the indemnity benefits payable to claimant are to be withheld and forwarded to \nthe appropriate agency for payment of claimant’s past due child support. \nPursuant to A.C.A. §11-9-715(a)(1)(B), claimant’s attorney is entitled to an attorney \nfee  in  the  amount  of  25%  of  the  compensation  for  indemnity  benefits  payable  to  the \nclaimant.   Thus, claimant’s attorney is entitled to a 25% attorney fee based upon the \nindemnity benefits awarded.   This fee is to be paid one-half by the carrier and one-half \nby  the  claimant.      Also  pursuant  to  A.C.A.  §11-9-715(a)(1)(B),  an  attorney  fee  is  not \nawarded on medical benefits. \n Respondent is liable for payment of the court reporter’s charges for preparation of \nthe hearing transcript in the amount of $401.95. \n All sums herein accrued are payable in a lump sum and without discount. \n IT IS SO ORDERED. \n \n      _____________________________________ \n       GREGORY K. STEWART \n       ADMINISTRATIVE LAW JUDGE","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H307385 PAUL SHELLY, Employee CLAIMANT R BARTEL, INC., Employer RESPONDENT STATE AUTO INSURANCE COMPANIES, Carrier RESPONDENT OPINION FILED JUNE 5, 2024 Hearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Fort Smith, Sebastian County, Arkansas. Cl...","fetched_at":"2026-05-19T22:52:25.556Z","links":{"html":"/opinions/alj-H307385-2024-06-05","pdf":"https://labor.arkansas.gov/wp-content/uploads/SHELLY_PAUL_H307385_20240605.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}