{"id":"alj-H400020-2024-11-25","awcc_number":"H400020","decision_date":"2024-11-25","opinion_type":"alj","claimant_name":"Amanda Grayham","employer_name":"Prestonrose Farm & Brewing","title":"GRAYHAM VS. PRESTONROSE FARM & BREWING AWCC# H400020 November 25, 2024","outcome":"granted","outcome_keywords":["granted:2","denied:1"],"injury_keywords":["strain","sprain","fracture"],"pdf_url":"https://www.labor.arkansas.gov/wp-content/uploads/GRAYHAM_AMANDA_H400020_20241125.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"GRAYHAM_AMANDA_H400020_20241125.pdf","text_length":22230,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO.  H400020 \n \nAMANDA GRAYHAM, Employee                                                                   CLAIMANT \n \nPRESTONROSE FARM & BREWING, Employer                                    RESPONDENT \n \nEMPLOYERS PREFERRED INSURANCE CO., Carrier                          RESPONDENT \n                                               \n \n \n \n OPINION FILED NOVEMBER 25, 2024 \n \nHearing   before   ADMINISTRATIVE   LAW   JUDGE   GREGORY   K.   STEWART   in \nRussellville, Pope County, Arkansas. \n \nClaimant appearing pro se. \n \nRespondents represented by JAMES A. ARNOLD, II, Attorney, Fort Smith, Arkansas. \n \n \n STATEMENT OF THE CASE \n  \n On November  7,  2024,  the  above  captioned  claim  came  on  for  hearing  at \nRussellville,  Arkansas.    A pre-hearing  conference  was  conducted  on August  14,  2024, \nand a pre-hearing order was filed on that same date.  A copy of the pre-hearing order has \nbeen marked 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 \nAugust 26, 2023. \n 3.       The respondent has controverted this claim in its entirety. \n\nGrayham (H400020) \n 2 \n At the pre-hearing conference the parties agreed to litigate the following issues: \n1.    Compensability of injury to claimant’s left arm on August 26, 2023. \n2.    Related medical. \n3.     Temporary total disability benefits from November 9, 2023 through April 1,  \n2024. \n 4.      Compensation rates. \n The claimant contends she suffered a compensable injury to her left arm on August \n26, 2023.  She requests payment of medical benefits and temporary total disability from \nNovember 9, 2023 through April 1, 2024. \n The respondents contend the claimant’s condition does not meet the definition of \na compensable injury.\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 witnesses and to observe their demeanor, the following findings of \nfact and conclusions of law are made in accordance with A.C.A. §11-9-704: \n \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 August 14, 2024, and contained in a pre-hearing order filed that same date are hereby \naccepted as fact. \n 2.    Claimant has met her burden of proving by a preponderance of the evidence \nthat she suffered a compensable injury to her left arm on August 26, 2023. \n 3.     Respondent  is  liable  for  payment  of  all  reasonable  and  necessary  medical \n\nGrayham – H400020 \n \n3 \n \ntreatment provided connection with claimant’s compensable injury. \n 4.   Claimant has met her burden of proving by a preponderance of the evidence \nthat  she  is  entitled  to temporary total  disability  benefits  beginning  November  15,  2023, \nand continuing through March 11, 2024.  Respondent is entitled to a credit for the period \nof time in which claimant received unemployment compensation benefits. \n 5.   Claimant earned an average weekly wage of $382.00 which would entitle her \nto compensation at the rates of $255.00 for temporary total disability benefits and $191.00 \nfor permanent partial disability benefits. \n \nFACTUAL BACKGROUND \n \n \n Claimant began working for respondent in July 2022 as a waitress.  She testified \nthat her job duties required her to seat customers, take orders, process orders, and deliver \norders as well as beverages to customers. \n Claimant  testified  that  on  August  26,  2023,  she  was  unloading  a  rack  of  pint \nglasses that had been washed and dried.  While she was in the process of taking glasses \nout of a wet rack and putting them into a dry rack the following occurred: \n \n  So from a standing position, I am standing like this \n  (indicating), pint glass in my right hand, rack is to my \n  left where I was placing them.  This top rack was full. \n  I reached out with my left hand, took my two middle \n  fingers and slid them into the opening in the rack that \n  would allow me to lift that full rack up and place the \n  glass in an empty spot down in the bottom. \n \n  When I did that, I felt a pulling, popping sensation.  It \n  caused tingling, burning from here to here (indicating). \n \n\nGrayham – H400020 \n \n4 \n \n      *** \n \n  On the interior of my left arm between the crease in \n  my elbow and my thumb, about two inches from the \n  crease in my elbow. \n \n \n Claimant reported the injury to her supervisor, Elizabeth Preston, and was asked \nwhether she wanted to seek medical treatment.  Claimant indicated that she did not wish \nto seek medical treatment at that time and continued performing her job for the rest of the \nday. \n In fact, claimant continued performing her job for the respondent as a waitress until \nNovember 9, 2023.  At that time, the respondent was in the process of closing its facility \nin Paris and moving to a location in Clarksville.  On its last day of business at the Paris \nlocation,  claimant  testified  that  she  was  extremely busy  and  had  increased  pain  in  her \narm.  As a result, she did request medical treatment on that day and was eventually seen \nby William Walker, a nurse practitioner, on November 15, 2023.  It should be noted that \nclaimant did not return to work for respondent after November 9, 2023. \n Walker diagnosed claimant’s condition as a strain of muscles, fascia, and tendons \nin the claimant’s forearm.   \n Claimant was subsequently seen by Antoinette Johnson, a nurse practitioner, on \nNovember 27, 2023, and at that time was referred for an orthopedic evaluation.  Claimant \nwas eventually seen by Dr. Michael Hussey, an orthopedic surgeon, on December 20, \n2023.  Dr. Hussey noted that an x-ray of the claimant’s elbow showed no obvious signs \nof  trauma,  deformity,  or  lesions  around  the  elbow  joint.    He  also  noted  that  the \nulnohumeral and radiocapitellar joints were well aligned.  Dr. Hussey assessed claimant’s \n\nGrayham – H400020 \n \n5 \n \ncondition as lateral epicondylitis versus a partial-thickness extensor tear.  He ordered an \nMRI scan of the claimant’s left elbow which was performed on December 29, 2023.  The \nMRI scan contains the following impression: \n1.   Lateral epicondylitis, manifested by focal low-grade \nintrasubstance tearing of the common extensor tendon \ngroup, on a background of moderate tendinosis. \n2.    Mild common flexor tendinosis. \n3.    Mild distal biceps tendinosis. \n \n \nFollowing the MRI scan Dr. Hussey referred claimant to physical therapy for lateral \nepicondylitis.  Claimant testified that she was not confident in Dr. Hussey and as a result \nshe  sought  medical  treatment  from  Dr.  Owen  Kelly,  another  orthopedic  surgeon.  \nClaimant’s  initial  evaluation  with  Dr.  Kelly  occurred  on  March  11,  2024.    Dr.  Kelly \nacknowledged  that  while  claimant’s  MRI  scan  showed  lateral  epicondylitis,  it  was  his \nopinion  that  claimant’s pain was  localized  more  in  her  bicep tendon.    Furthermore,  he \nopined  that  her  examination  and  the  mechanism  of  injury  was  more  consistent  with  a \nbicep strain/sprain.    He  recommended that  claimant  discontinue  the  use  of  her  elbow \nbrace and instead use anti-inflammatories and therapy exercises. \n On that same date Dr. Kelly authored a letter to claimant stating as follows: \n  As you know, we had the opportunity to talk about your \nleft elbow and I really believe that you partially strained \nor sprained your biceps tendon when you were lifting.  I \nknow you have been told you have lateral epicondylitis  \nand I am not disagreeing with that, but your pain seems \nto localize more to your bicep tendon. \n \n \n Claimant has filed this claim contending that she suffered a compensable injury to \nher left arm on August 26, 2023.  She seeks payment of related medical benefits as well \n\nGrayham – H400020 \n \n6 \n \nas temporary total disability benefits from November 9, 2023 through April 1, 2024. \n \nADJUDICATION \n As previously noted, claimant contends that she suffered a compensable injury to \nher left arm while lifting a rack on August 26, 2023.  Claimant’s claim is for a specific injury \nidentifiable by time and place of occurrence.    In order to prove a compensable injury as \nthe  result  of  a  specific  incident  that  is  identifiable  by  time  and  place  of  occurrence,  a \nclaimant must establish by a preponderance of the evidence (1) an injury arising out of \nand in the course of employment; (2) the injury caused internal or external harm to the \nbody  which  required  medical  services  or  resulted  in  disability  or  death;  (3)  medical \nevidence  supported  by  objective  findings  establishing  an  injury;  and  (4)  the  injury  was \ncaused by a specific incident identifiable by time and place of occurrence.  Odd Jobs and \nMore v. Reid, 2011 Ark. App. 450, 384 S.W. 3d 630. \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 her burden of proof.   \n Initially, I note that respondent does not dispute that an incident was reported on \nAugust  26,  2023.    Testifying  at  the  hearing was  Elizabeth  Preston, the owner/operator \nwith her husband of the respondent.  Preston acknowledged that on August 26, claimant \nreported  an  injury  to  her  left  arm  and  Preston  asked  claimant  if  she  needed  to  seek \nmedical treatment.  Claimant indicated that she did not need to go to the doctor but would \nbe fine.  Preston further testified that during the period of time claimant continued to work \nthere she repeatedly asked claimant how her left arm was and offered to send her to the \ndoctor  on  several  occasions,  but  claimant  refused.    Finally,  Preston  testified  that  on \n\nGrayham – H400020 \n \n7 \n \nNovember 9, 2023, the last day of respondent’s operation in Paris, claimant indicated that \nher left arm was hurting worse than ever and at that point Preston informed claimant that \nshe  had  to  go  to  the  doctor.      Claimant  subsequently  sought  medical  treatment  from \nWilliam Walker, a nurse practitioner, on November 15, 2023.   \n Based upon the claimant’s testimony as well as the testimony of Preston and the \nhistory contained in the medical records which is consistent with claimant’s testimony, I \nfind that claimant has met her burden of proving by a preponderance of the evidence that \nher injury arose out of and in the course of her employment with respondent and that the \ninjury was caused by a specific incident identifiable by time and place of occurrence. \n I also find that claimant has proven that her injury caused internal harm to her body \nthat required medical services or resulted in disability and that she has offered medical \nevidence supported by objective findings establishing an injury.  Respondent’s primary \ncontention in this case is that there are no objective findings establishing a specific injury \nto claimant’s left arm.  In support of this contention, respondent relies in part upon a report \nwritten  by  Dr.  Theodore  Hronas,  a  board  certified  radiologist.    Dr.  Hronas  reviewed \nclaimant’s radiographs as well as the MRI scan of her left elbow.  In a report dated July \n10, 2024, he stated: \n  Radiographs of the left elbow, 12/20/23, were performed \n  Approximately four months after the date of injury.  The \n  radiographs are normal with no evidence of a fracture or \n  soft tissue injury. \n \n  The MRI of the left elbow, 12/29/2023, was performed \n  approximately four months after the date of injury.  The \n  exam shows no evidence of fracture or bone marrow \n  edema.  There is normal radial head articulation and \n  maintenance of the articular cartilage.  There is no \n  evidence of osteoarthritic change or osteochondral  \n\nGrayham – H400020 \n \n8 \n \n  injury.  The medical, lateral, and radial collateral \n  ligaments are intact.  There is increased T2 signal \n  intensity and mild thickening of the common extensor \n  tendon at the attachment with the lateral epicondyle \n  consistent with lateral epicondylitis.  The common \n  flexor tendon is intact.  There is mild increased \n  signal intensity involving the biceps tendon insertion \n  at the radial tuberosity.  The brachialis and triceps \n  tendons are normal.  There is no evidence of muscle \n  injury or soft tissue contusion. \n \n  In summary, there is evidence of mild chronic lateral \n  epicondylitis and mild chronic distal biceps tendinosis. \n  These changes are secondary to overuse syndromes \n  and not related to a single injury event.  Specifically, \n  there are no objective findings of either a recent or \n  remote injury of the left elbow. \n \n \n While Dr. Hronas does acknowledge that objective findings are present, it is his \nopinion that  those  findings  are  secondary  to  overuse  syndromes  and  not  related  to  a \nspecific injury.  Accordingly, respondent contends that since claimant is alleging a specific \ninjury there are no objective findings supporting a specific injury.  However, the MRI scan \nfrom December 29, 2023, was interpreted as showing a tearing of the common extensor \ntendon  group  as  well  as  lateral  epicondylitis  and  biceps  tendinitis.    Following  that  MRI \nscan Dr. Hussey diagnosed claimant’s condition as lateral epicondylitis and referred her \nto physical therapy. \nIn addition, claimant sought medical treatment from Dr. Owen Kelly, an orthopedic \nsurgeon, who evaluated the claimant on March 11, 2024.  Dr. Kelly stated that although \nthe  MRI  scan  showed  lateral  epicondylitis,  it was  his  belief  that  claimant’s  exam  and \nmechanism  of  injury  was  more  consistent  with  a  biceps  sprain/strain.    In  his  letter  to \nclaimant  dated  March  11,  2024,  he  stated  that  he  believed  the  claimant  had  partially \n\nGrayham – H400020 \n \n9 \n \nstrained or sprained her biceps tendon when she was lifting.  Dr. Kelly specifically stated \nthat  claimant’s  MRI  scan  of  her  left  elbow  revealed  lateral  epicondylitis  and  some \ntendinitis  of  the  bicep.    This  objective  finding  coupled  with  his  opinion  that  claimant \npartially  strained  or  sprained  her  biceps  tendon  when  she  was  lifting  satisfies  the \nrequirement of compensability. \n While  Dr.  Hronas  is  of  the  opinion  that  these  findings  do  not  support  a  specific \nincident but rather a cumulative type injury, Dr. Kelly’s opinion indicates that the objective \nfindings do support a finding that claimant partially strained or sprained her biceps tendon \nwhen she was lifting on August 26, 2023.  Dr. Kelly is an orthopedic surgeon as opposed \nto a radiologist, and I find that his opinion is entitled to great weight.  With respect to the \nissue  of  compensability, I further  note  that  there  is  no  indication that  claimant  had  any \nprior  complaints  with  her  left  arm  before  August  26,  2023.   Furthermore,  claimant \ncontinued to have complaints involving her left arm even after the incident on August 26, \n2023.  This is evident not only from claimant’s testimony but also from the testimony of \nPreston who testified that after August 26, 2023, she repeatedly asked claimant how her \narm  was  and  offered  to  send  claimant  to  the  doctor  on  several  occasions.    If  claimant \nwere  not  continuing  to  have  issues  involving  her  left  arm,  there  would  have  been  no \nreason for Preston to repeatedly ask her if she needed to seek medical treatment. \n In summary, after reviewing the evidence in this case impartially, without giving the \nbenefit of the doubt to either party, I find that claimant has met her burden of proving by \na preponderance of the evidence that she suffered a compensable injury to her left arm \non August 26, 2023. \n In making this finding, I have relied on the testimony of the claimant, the testimony \n\nGrayham – H400020 \n \n10 \n \nof  Preston,  and  the  medical  records.    I  have  not  given  any  weight  to  two  transcripts \nsubmitted by the claimant which purport to be reflections of her conversations with Drs. \nHussey and Kelly.  Claimant testified at the hearing that she had concerns about being \nable  to  accurately  remember  and  inform  her  family  about  her  discussions  with  Drs. \nHussey and Kelly.  As a result, claimant secretly recorded those conversations.  Neither \nDr. Hussey nor Dr. Kelly were aware that their conversations were being recorded.  I find \nthat these recordings are hearsay.  They are statements made out of court for the purpose \nof proving the matters asserted therein.  Neither Dr. Hussey nor Dr. Kelly were present at \nthe hearing and neither was provided a copy of these transcripts to determine whether \nthey  accurately  reflected  the  conversation  or  whether  further  clarification  was  needed.  \nWhile they are purportedly transcripts of conversations between claimant and her medical \nproviders,  they  are  not  medical  reports  and  therefore  do  not  come  within  the  hearsay \nexception under Arkansas Workers’ Compensation law.  Ordinarily, medical reports are \nsubmitted  as  an  exception  to  the  hearsay  rule;  however,  in  this  case,  these  are  not \nmedical   reports   prepared   by   the   treating   physicians   but   instead   purport   to   be \ntranscriptions of conversations between claimant and Dr. Hussey and claimant and Dr. \nKelly which was were taken without their knowledge or consent.  Therefore, I have given \nno weight to statements made in those transcripts. \n Respondent  is  liable  for  payment  of  all  reasonable  and  necessary  medical \ntreatment  provided  in  connection  with  claimant’s  compensable  injury.    I  also  find  that \nclaimant is entitled to temporary total disability benefits beginning November 15, 2023, \nand continuing through March 11, 2024.  Claimant’s injury to her left arm is a scheduled \ninjury.  An employee who has suffered a scheduled injury is entitled to receive temporary \n\nGrayham – H400020 \n \n11 \n \ntotal disability benefits during the healing period or until they return to work, regardless of \nwhether  they  are  totally  incapacitated  from  earning  wages.   Wheeler  Construction \nCompany v. Armstrong, 73 Ark. App. 146, 41 S.W. 3d 822 (2001).  In this particular case, \nI find that claimant entered her healing period and was taken off work when she initially \nsought medical treatment from Walker, the nurse practitioner, on November 15, 2023.  In \na  follow-up  note  dated  November  27,  2023,  Antoinette  Johnson,  a  nurse  practitioner, \nindicated that claimant was unable to return to work and stated that an estimated return \ndate was unknown.  Claimant testified that she did not return to work for any employer \nuntil after she was seen by Dr. Kelly on March 11, 2024.  Accordingly, based upon this \nevidence, I find that claimant remained in her healing period and that she had not returned \nto work beginning on November 15, 2023, and continuing through March 11, 2024, when \nshe was seen by Dr. Kelly. \n Claimant   testified   that   during   January,   February   and   March   she   received \nunemployment compensation benefits.  Pursuant to A.C.A. §11-9-506, compensation for \ntemporary  total disability  benefits  shall not be  payable  to an   injured  employee  for any \nweek  during  which  they drew unemployment  compensation  benefits.    Therefore,  while \nclaimant has been awarded temporary total disability benefits from November 15, 2023 \nthrough March 11, 2024, claimant is not entitled to benefits for any weeks during which \nshe also drew unemployment compensation benefits. \n The  next  issue  for  consideration  involves  claimant’s  compensation  rate.    The \nclaimant  submitted  into  evidence  paystubs  for  her  earnings  dating  from  November  10, \n2022 through November 17, 2023.  In addition, claimant attached a sheet summarizing \nher payments for the last 51 weeks of work with a total of $19,362.28.  However, average \n\nGrayham – H400020 \n \n12 \n \nweekly wages are to be determined at the time of the accident and wages earning after \nthe  accident  are  not  to  be  considered.    Accordingly,  I have based  claimant’s  average \nweekly wage on the wages she earned beginning with the date of November 10, 2022, \nand continuing through August 25, 2023, the date before her injury.  Claimant’s wages \nreflect that she earned a total of $15,295.86 during 40 weeks of work.  This results in an \naverage weekly wage of $382.00 per week which would entitle claimant to compensation \nat  the  rates  of  $255.00 per  week  for  total disability benefits  and $191.00  per  week  for \npermanent partial disability benefits. \n \nAWARD \n Claimant has met her burden of proving by a preponderance of the evidence that \nshe suffered a compensable injury to her left arm on August 26, 2023.  Respondent is \nliable  for  payment  of  all  reasonable  and  necessary  medical  treatment  provided  in \nconnection  with  claimant’s  compensable  injury.    Claimant  is  entitled  to temporary total \ndisability  benefits  from  November  15,  2023  through  March  11,  2024.   Claimant  is  not \nentitled  to  temporary  total  disability  benefits  for  any  weeks  during  which  she  received \nunemployment compensation benefits.  Finally, claimant earned an average weekly wage \nof $382.00 which would entitle her to compensation at the rates of $255.00 for temporary \ntotal disability benefits and $191.00 for permanent partial disability benefits. \n Respondent  is responsible  for  payment  of  the  court  reporter’s  charges  for \npreparation of the hearing transcript in the amount of $613.65. \n All sums herein accrued are payable in a lump sum without discount. \n \n\nGrayham – H400020 \n \n13 \n \n IT IS SO ORDERED. \n \n     _________________________________________ \n      GREGORY K. STEWART \n      ADMINISTRATIVE LAW JUDGE","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H400020 AMANDA GRAYHAM, Employee CLAIMANT PRESTONROSE FARM & BREWING, Employer RESPONDENT EMPLOYERS PREFERRED INSURANCE CO., Carrier RESPONDENT OPINION FILED NOVEMBER 25, 2024 Hearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Russellville, Pope ...","fetched_at":"2026-05-19T22:46:53.127Z","links":{"html":"/opinions/alj-H400020-2024-11-25","pdf":"https://www.labor.arkansas.gov/wp-content/uploads/GRAYHAM_AMANDA_H400020_20241125.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}