{"id":"alj-H401770-2024-11-19","awcc_number":"H401770","decision_date":"2024-11-19","opinion_type":"alj","claimant_name":"Marcelene Lumpkins","employer_name":"Birch Tree Communities, Inc","title":"LUMPKINS VS. BIRCH TREE COMMUNITIES, INC. AWCC# H401770 November 19, 2024","outcome":"granted","outcome_keywords":["granted:9"],"injury_keywords":["back","fracture","neck"],"pdf_url":"https://www.labor.arkansas.gov/wp-content/uploads/LUMPKINS_MARCELENE_H401770_20241119.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"LUMPKINS_MARCELENE_H401770_20241119.pdf","text_length":25005,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nAWCC FILE No H401770 \n \nMARCELENE LUMPKINS, EMPLOYEE      CLAIMANT \n \nBIRCH TREE COMMUNITIES, INC., EMPLOYER         RESPONDENT \n     \nATA WORKERS’ COMP SI TRUST, CARRIER/ \nRISK MANAGEMENT SERVICES, TPA          RESPONDENT \n \n \n \nOPINION FILED 19 NOVEMBER 2024 \n \n \n \nHeard before Arkansas Workers’ Compensation Commission (AWCC) Administrative Law \nJudge JayO. Howe on 21 August 2024 in Little Rock, Arkansas. \n \nMr. Mark Alan Peoples appeared for the claimant. \n \nMs. Melissa Wood, of Worley, Wood & Parish, PA, appeared for the respondents. \n \nI.  STATEMENT OF THE CASE \n \nThe above-captioned case was heard on 21 August 2024 in Little Rock, Arkansas, \nafter the parties participated in a prehearing telephone conference on 30 July 2024. A \nPrehearing Order, admitted to the record without objection as Commission’s Exhibit No 1, \nwas entered on the day of the conference.  \nThat Order set forth the following STIPULATIONS: \n1.  The AWCC has jurisdiction over this claim. \n2.  An employee/employer/TPA relationship existed at all relevant times, including \non 19 December 2023. \n \n3.  The claimant’s average weekly wage at the time of the injury was $958.10, which \nwould entitle her to TTD/PPD rates of $639/$479 per week. \n \n4.  The respondents have controverted this claim in its entirety. \n \n \n\nLUMPKINS- H401770  \n2 \n \nThe Order stated the following ISSUES TO BE LITIGATED: \n1. Whether the claimant sustained a compensable injury to both of her elbows by \nspecific incident on 19 December 2023. \n \n2. Whether the claimant is entitled to medical and indemnity benefits associated \nwith a compensable injury, including TTD benefits between the date of the injury \nand 13 June 2024.\n1\n \n \n3.  Whether the claimant is entitled to an attorney’s fee. \nThe parties’ CONTENTIONS, as set forth in their prehearing questionnaire \nresponses, were incorporated into the Prehearing Order by reference. The claimant \ncontends, as amended without objection at the beginning of the hearing: \n1. That she sustained compensable work injuries to both elbows by specific incident \non 19 December 2023. \n \n2. That she is entitled to TTD from the date of injury to 13 June 2024. \n3. That she is entitled to reasonable and necessary medical benefits related to her \ncompensable work injuries. \n \n4. That she is entitled to the maximum statutory fees associated with her claim \nbeing controverted by the respondents. \n \n The respondents contend: \n1. That the claimant did not sustain a compensable injury on 19 December 2023.  \n2. That she was not in the course and scope of her employment at the time of her \nfall and resulting injuries. \n \n The following WITNESSES testified at the hearing: Ms. Lori Smith, an employee of \nthe respondent-employer, was called by the claimant, and the claimant testified on her own \nbehalf; the respondents called Mr. Blake Smith (no apparent relation to Ms. Lori Smith) \nand Mr. Todd Henderson, both employees of the respondent-employer. \n \n1\n The Prehearing Order noted the claimant sought TTD benefits from the date of the injury \nto a date yet to be determined. At the outset of the hearing, she amended her contentions to \nallege that she was entitled to TTD benefits from the date of the injury through 13 June \n2024. Whether she was entitled to TTD benefits after 13 June 2024 was reserved. \n\nLUMPKINS- H401770  \n3 \n \nThe EVIDENCE considered  in this claim consisted of the hearing testimony along with \nthe following EXHIBITS: Commission’s Exhibit No 1 (the Prehearing Order), Claimant’s \nExhibit No 1 (an index page and 23 subsequent pages of medical records), and Claimant’s \nExhibit No 2 (an index page and three subsequent pages of non-medical \nrecords).                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                          \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n Having reviewed the record as a whole and having heard testimony from the \nwitnesses, observing their demeanor, I make the following findings of fact and conclusions \nof law under ACA § 11-9-704: \n1. The AWCC has jurisdiction over this claim. \n \n 2. The previously-noted stipulations are accepted as fact. \n \n3. The claimant proved by a preponderance of the evidence that she suffered \ncompensable injuries to both elbows by specific incident. \n \n4.   The claimant proved by a preponderance of the evidence that she is entitled \nto reasonable and necessary medical benefits associated with the treatment \nof her compensable injuries. \n \n5. The claimant proved by a preponderance of the evidence that she is entitled \nto TTD benefits between the date of injury and 13 June 2024, subject to any \napplicable offset associated with her receipt of short-term and/or long-term \ndisability payments.\n2\n \n \n6. The claimant proved by a preponderance of the evidence that she is entitled \nto an attorney’s fee. \n \nIII.  HEARING TESTIMONY  \nWitness Ms. Lori Smith \n \n2\n At the beginning of the hearing, the parties discussed that in the event the claimant was \nfound to be entitled to TTD benefits, they would handle applying appropriate offset \namounts from other disability benefits already provided to the claimant. See TR at 10. \nTestimony was not offered as to those potential offset amounts, and the issue was reserved \nshould the matter not be amicably resolved by the parties. \n\nLUMPKINS- H401770  \n4 \n \n Ms. Smith testified that she worked for the respondent-employer for twenty-eight \nyears and that she works with the claimant. Regarding the day of the claimant’s fall, she \nstated, “We were going out to her car. I was going to ride with her to the team meeting and \nwe went out the back door and we were stepping off some steps and I stepped off the step \nand I heard her scream and I looked over and she was in the air falling, and I heard her hit \nthe pavement really hard and she started crying, and I could tell she was injured really \nbad.” [TR at 14-15.] \n She explained that attending the quarterly off-site lunch meeting was “part of the \njob... you’re pretty much expected to go to it.” [TR at 16.] She did not clock out during for \nthe time in or around those lunch meetings and was not aware of anyone else not being on \nthe clock at those times. \nMs. Smith was asked on cross examination whether she considered the meetings to be \nmandatory. She responded, “I mean, yeah... I felt like I was expected to be at those \nmeetings.” [TR at 18.] She went on to answer that the employees got a free meal and talked \nabout work and enjoyed each other’s company. “[I]t’s kind of a benefit of our team, you \nknow.” [TR at 19.] She testified further that the finance team also has regular Zoom \nmeetings at 10:00 AM on Tuesdays. \nClaimant Marcelene Lumpkins \n The claimant testified that she has worked for the respondent-employer for ten \nyears. She did not recall exactly what caused her fall while leaving on the day of her \ninjuries, but recalled “hitting the pavement” and breaking both of her elbows, with the “left \nbeing the worst [sic].” [TR at 22.] She testified that she has not returned to work since the \nday of her fall.  \n\nLUMPKINS- H401770  \n5 \n \n As for whether attending the lunch meeting was mandatory, she said that it was not \nindicated explicitly that employees must attend, but she felt she was ordinarily expected to \nbe present. \nQ:  If you had something pressing that you had to do, like for instance, a family issue \nthat you had – that took precedence over this, -- \n A:  Uh-huh. \n Q:  -- would you clock out? \n A:  Yes. \n Q:  Okay. To go to the quarterly luncheon meeting, would you clock out? \n A:  No. \n . . .  \n Q:  You’ve been to several of these meetings? \n A:  Yes, I have. \n Q:  Okay. Off-site? \n A:  Yes. \n Q:  Have you ever clocked out?  \n  A:  No. \n Q:  To go to one of these meetings off-site? \n A:  No, not ever. \n Q:  So you were on the clock? \n A:  That’s correct. \n \n[TR at 24-25.] The claimant confirmed that she was not salaried, and that she accounted for \nher time on and off “the clock.” \n The claimant testified that she had not had problems with her elbows prior to the \nfall, but that she had undergone multiple surgeries on her left elbow since the accident. She \nstated that her injuries prevented her from completing basic daily tasks and that she would \nnot have been able to perform her job functions if she had returned to work. The claimant \nfurther testified that company policy prevented her from returning to work with any \nrestrictions in place. \n On cross examination the claimant testified that she was one of seven employees \nwho reported to the Chief Financial Officer (CFO). Performing administrative and clerical \nfunctions for the CFO and training new employees were within the scope of her job duties. \nAs for the lunch meetings, she said that new facility residents, their care needs, and rent \n\nLUMPKINS- H401770  \n6 \n \namounts could be among the work-related things discussed over lunch. Answering a \nquestion from the bench, the claimant clarified that Birch Tree is a residential care facility \nfor clients with mental health-related needs. \n     Witness Mr. Blake Smith \nAfter the close of the claimant’s case, the respondents called Chief Financial Officer \nBlake Smith to the witness stand. Mr. Smith started his position with the respondent-\nemployer in March of 2022. He provided the following testimony about the off-site lunch \nmeetings: \n Q:  ... you guys were going to Colton’s, is that right? \n A:  Yes. \n Q:  Was it for a mandatory meeting? \n A:  No. \n Q:  Were they forced to go there? \n A:  No. \n Q:  Was there an agenda? \n A:  No. \n Q:  Did the employees take their own vehicles? \n A:  Yes. \n Q:  Was anyone taking minutes? \n A:  No. \n Q:  Is it a social event? \n A:  Yes.  \n \n[TR at 38-39.] His direct examination concluded with the question of whether the claimant \nwas performing job duties when she fell. He responded that she was not. \n Mr. Smith testified on cross examination that he was aware that having meetings \noff-site required hourly employees to be outside of their assigned work areas. \n Q:  And were they required to clock out? \n A:  No. \n Q:  Okay. So they’re still on the clock, when they’re going to the luncheon? \n A:  Yes. \nQ:  You are aware, aren’t you, that it’s a Birch Tree policy that hourly employees \nleaving their assigned work locations for any reason must clock out of time keeping; \nyou’re aware of that, aren’t you? \n A:  Well, this was a team building exercise. \n Q:  Okay. \n A:  Yes. \n\nLUMPKINS- H401770  \n7 \n \n Q:  Okay. What’s a team building exercise? \nA:  So we have—like I said before, we’ve got some folks that work remotely, and \nthen, we have folks that work at the office and when I started at Birch Tree, I \ndiscovered that not everybody was always, you know, working together; and so this \nwas an effort to bring people together, so that we did get to know each other. So that \nwhen we are in the office, we could, you know, work better together. \n \n[TR at 41-42.] Mr. Smith then confirmed again that he was aware that employees were \nrequired to clock out when leaving their work areas for personal reasons and that they did \nnot clock out for the lunch meetings. \n     Witness Todd Henderson \n Mr. Henderson testified that he works as a senior accountant at the respondent-\nemployer and that he was working on the day of the claimant’s accident. He stated that he \nhad missed all or part of some lunch meetings before and that he did not consider them to \nbe mandatory. \n Q:  If you miss, are you reprimanded in any way? \n A:  I have never been. \n Q:  Are you forced to attend? \n A:  I don’t think so. Like I said, I got up and left before with permission. \n Q:  Is there any type of agenda that’s followed at these luncheons? \n A:  I would say it’s more social interaction, kind of. \n \n[TR at 45.] \n Mr. Henderson stated on cross examination that he felt like attending the meetings \nwas encouraged and that he did not clock out to attend them. \n     Medical and Documentary Evidence \n The records from the claimant’s emergency department visit show that she suffered \na left arm “comminuted fracture of the olecranon” with “dislocation of the capitellar joint \nwith the radius displaced anteriorly.” [Cl. Exhibit No 1 at 5.] She underwent surgery on 21 \nDecember 2023. A preoperative X-ray of her right arm revealed a “small incomplete radial \nneck fracture” of the right arm. Id. at 9. A surgical revision was required on 9 January 2024 \ndue to hardware fixation failure of the left arm. Id. at 15. \n\nLUMPKINS- H401770  \n8 \n \n Additional clinic notes indicate that she remained under a physician’s care with \norders for physical therapy and light duty restrictions through at least May of 2024. Id. at \n20, 22. \n The claimant also provided records from email threads related to the scheduling of \nthe finance team luncheon. [Cl. Exhibit No 2.] The emails begin with Blake Smith sending a \nmessage on December 5\nth\n that he would “like to schedule a team luncheon.” In a later reply \nto a calendar appointment titled “Finance Team Luncheon” for Monday, December 18\nth\n, \nSmith asks about moving the meeting from that Monday, December 18\nth\n, to Wednesday. \nTodd Henderson suggested moving it to Tuesday, December 19\nth\n, “in place of our team \nmeeting at 10.” Smith responded on the morning of the 19\nth\n, saying that they would meet at \nColton’s for lunch that day. “BTW, we’ll still have our weekly meeting this morning. I’ll \ncancel the meeting for next week,” he concluded. \nIV.  ADJUDICATION \nThe stipulated facts, as agreed during the prehearing conference, are outlined above \nand accepted. It is settled that the Commission, with the benefit of being in the presence of \nthe witness and observing his or her demeanor, determines a witness’ credibility and the \nappropriate weight to accord his or her statements. See Wal-Mart Stores, Inc. v. \nVanWagner, 337 Ark. 443, 448, 990 S.W.2d 522 (1999).   \nA. The Claimant Sustained a Compensable Injury. \nUnder Arkansas’ Workers’ Compensation laws, a worker has the burden of proving by a \npreponderance of the evidence that she sustained a compensable injury as the result of a \nworkplace incident. Ark. Code Ann. § 11-9-102(4)(E)(i). A compensable injury must be \nestablished by medical evidence supported by objective findings. Ark. Code Ann. § 11-9-\n102(4)(D). Objective medical findings are those findings that cannot come under the \nvoluntary control of the patient. Ark. Code Ann. § 11-9-102(16)(A)(i). Causation does not \n\nLUMPKINS- H401770  \n9 \n \nneed to be established by objective findings when the objective medical evidence establishes \nthat an injury exists and other nonmedical evidence shows that it is more likely than not \nthat the injury was caused by an incident in the workplace. Bean v. Reynolds Consumer \nProds., 2022 Ark. App 276, 646 S.W.3d 655, 2022 Ark. App. LEXIS 276, citing Wal-Mart \nStores, Inc. v. VanWagner, supra. \nThe claimant alleges that his injury occurred by specific incident. The claimant must \nestablish four (4) factors by a preponderance of the evidence to prove a specific incident \ninjury: (1) that the injury arose during the course of employment; (2) that the injury caused \nan actual harm that required medical attention; (3) that objective findings support the \nmedical evidence; and (4) that the injury was caused by a particular incident, identifiable in \ntime and place. See Cossey v. G. A. Thomas Racing Stable, 2009 Ark. App. 666,5, 344 \nS.W.3d 684, 689. \n There is no question that the claimant fell on 19 December 2023 and that she \nsuffered significant injuries to both elbows as a result of that fall. Those injuries required \nmedical attention, including surgical treatment and physical therapy. Factors (2), (3), and \n(4), noted above, are not at issue in this claim. It is on Factor (1)—whether the claimant \nwas in the course of her employment when she fell walking to her car to attend an off-site \nlunch meeting—that this claim turns. Based on the record before me, I find that the \nclaimant met her burden on this factor and that her work injuries are, therefore, \ncompensable. \n In Hudak-Lee v. Baxter County Reg. Hosp., 2011 Ark. 31, 378 S.W.3d 77, the Arkansas \nSupreme Court stated: \nIn order for an accidental injury to be compensable, it must arise out of and in the \ncourse of employment. Ark. Code Ann. § 11-9-102(4)(A)(i) (Supp. 2009). A \ncompensable injury does not include an injury that is inflicted upon the employee \nat a time when employment services are not being performed. Ark. Code Ann. § \n\nLUMPKINS- H401770  \n10 \n \n11-9-102(4)(B)(iii)  (Supp. 2009). The phrase \"in the course of employment\" and \nthe term \"employment services\" are not defined in the Workers' Compensation \nAct. Texarkana Sch. Dist. v. Conner, 373 Ark. 372, 284 S.W.3d 57 (2008). Thus, \nit falls to the court to define these terms in a manner that neither broadens nor \nnarrows the scope of the Act. Id. \n \nAn employee is performing employment services when he or she is doing \nsomething that is generally required by his or her employer. Id.; Pifer v. Single \nSource Transp., 347 Ark. 851, 69 S.W.3d 1 (2002). We use the same test to \ndetermine whether an employee is performing employment services as we do \nwhen determining whether an employee is acting within the course and scope of \nemployment. Jivan v. Econ. Inn & Suites, 370 Ark. 414, 260 S.W.3d 281 (2007). \nThe test is whether the injury occurred within the time and space boundaries of \nthe employment, when the employee was carrying out the employer's purpose or \nadvancing the employer's interest, directly or indirectly. Id. In Conner, 373 Ark. \n372, 284 S.W.3d 57, we stated that where it was clear that the injury occurred \noutside the time and space boundaries of employment, the critical inquiry is \nwhether the interests of the employer were being directly or indirectly advanced \nby the employee at the time of the injury. Moreover, the issue of whether an \nemployee was performing employment services within the course of employment \ndepends on the particular facts and circumstances of each case. Id. \n \n The testimony differs on exactly whether attending the off-site lunch meetings was \nexplicitly mandatory. Attendance was certainly encouraged. While Mr. Blake Smith did not \ncharacterize the luncheon as mandatory, he described it as a team building exercise in \nwhich he placed importance as an opportunity “to bring people together” and to “work \nbetter together.”  \n Even if there was no formal agenda for the luncheons, it was an opportunity for the \nteam to meet outside of the office to discuss current or upcoming business needs associated \nwith facility residents and generally get to know each other better. The respondent-\nemployer benefitted both directly and indirectly from these meetings. On the day of the \naccident, the claimant and Ms. Lori Smith were walking out to ride to the restaurant \ntogether. This is consistent with Mr. Smith’s aim to bring people together more, outside of \neven the meeting itself. And while the meeting was not held in lieu of that week’s regular \n\nLUMPKINS- H401770  \n11 \n \n10:00 AM finance meeting, the evidence shows that it’s scheduling did provide for the \nfollowing week’s regularly scheduled finance meeting to be canceled. \n There is no question from the testimony, however, that company policy requires \nhourly employees to clock out for personal matters and that the claimant and others did not \nclock out to attend the lunch meeting. Nor is there a question that Mr. Smith was aware of \nboth of these facts. His efforts to arrange a lunchtime meeting during his employee’s \nnormal working hours cuts in favor of the meeting’s attendance being an employer-\nendorsed work activity. And his support for the meetings was clearly geared towards \nadvancing the interests of the employer, both directly and indirectly. \n The evidence shows that the claimant’s attending the luncheon was both advancing \nthe interests of the employer and within the time and space boundaries of her employment. \nThe claimant’s accident occurred while she was on the clock and while she was attempting \nto attend a meeting for her employer’s benefit. Her workplace injuries arose out of and in \nthe course of her employment and are, therefore, compensable. \nB. The Claimant is Entitled to Reasonable and Necessary Medical \nBenefits Associated with the Treatment of her Compensable Injuries. \n \n Arkansas Code Annotated Section 11-9-508(a) (Repl. 2012) states that an employer \nshall provide for an injured employee such medical treatment as may be necessary in \nconnection with the injury received by the employee. Wal-Mart Stores, Inc. v. Brown, 82 \nArk. App. 600, 120 S.W.3d 153 (2003). But employers are liable only for such treatment and \nservices as are deemed necessary for the treatment of the claimant's injuries. DeBoard v. \nColson Co., 20 Ark. App. 166, 725 S.W.2d 857 (1987). The claimant must prove by a \npreponderance of the evidence that medical treatment is reasonable and necessary for the \ntreatment of a compensable injury. Brown, supra; Geo Specialty Chem. v. Clingan, 69 Ark. \nApp. 369, 13 S.W.3d 218 (2000). What constitutes reasonable and necessary medical \n\nLUMPKINS- H401770  \n12 \n \ntreatment is a question of fact for the Commission. White Consolidated Indus. v. Galloway, \n74 Ark. App. 13, 45 S.W.3d 396 (2001); Wackenhut Corp. v. Jones, 73 Ark. App. 158, 40 \nS.W.3d 333 (2001). \n The claimant has met her burden in proving that she suffered compensable injuries \nto both elbows. The treatment reflected in the medical records appears reasonable and \nnecessary, and no testimony or evidence contrary to the same was presented. She is, thus, \nentitled to reasonable and necessary medical benefits associated with those injuries. \nC. The Claimant is Entitled to Temporary Total Disability Benefits from \nthe Date of Injury to 13 June 2024. \n \nThe claimant has proven compensable scheduled injuies in this claim. She is, thus, \nentitled to temporary total disability (TTD) benefits during her healing period or until she \nreturns to work, whichever happens first. Ark. Code Ann. § 11-9-521. The healing period is \nthat period for healing of the injury which continues until the employee is as far restored as \nthe permanent character of the injury will permit. Nix v. Wilson World Hotel, 46 Ark. App. \n303, 879 S.W.2d 457 (1994). If the underlying condition causing the disability has become \nstable and nothing further in the way of treatment will improve that condition, the healing \nperiod has ended. Id. Whether an employee’s healing period has ended is a question of fact \nfor the Commission. Ketcher Roofing Co. v. Johnson, 50 Ark. App. 63, 901 S.W.2d 25 (1995). \nThe claimant must prove her entitlement to TTD benefits by a preponderance of the \nevidence. Ark. Code Ann. § 11-9-705(a)(3). \nIt is not disputed that the claimant did not work between the date of her injury and \n13 June 2024, the date through which she claims entitlement to TTD benefits. Her \ntreatment records available at the time of the hearing show that she remained under a \nphysician’s care and in a healing period at least one month beyond the 15 April 2024 clinic \nvisit that continued her physical therapy and anticipated further follow-up in a month’s \n\nLUMPKINS- H401770  \n13 \n \ntime. No evidence was presented to support a finding that her healing period had ended \nbefore 13 June 2024. \nI, therefore, find that the claimant is entitled to TTD benefits from the date of her \ninjury to 13 June 2024.\n3\n \nD. The Claimant Proved by a Preponderance of the Evidence that She is \nEntitled to an Attorney’s Fee. \n \nThe respondents controverted this claim in its entirety. The claimant is, accordingly, \nentitled to a controverted attorney’s fee consistent with the indemnity benefits associated \nwith these findings and Ark. Code Ann. § 11-9-715. \nV.  ORDER \n The respondents are directed to pay all benefits awarded under these Findings of \nFact and Conclusions of Law. The accrued sums are owed in a lump sum without discount, \nand this award shall earn interest at the legal rate until paid. Ark. Code Ann. § 11-9-809. \nThe claimant’s attorney is entitled to a fee of twenty-five (25%) percent of the indemnity \nbenefits awarded, with one-half (1/2) to be paid by the claimant and one-half (1/2) to be paid \nby the respondents. Ark. Code Ann. § 11-9-715. \nSO ORDERED. \n \n________________________________ \n       JAYO. HOWE \n       ADMINISTRATIVE LAW JUDGE  \n  \n \n3\n See FN 2.","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION AWCC FILE No H401770 MARCELENE LUMPKINS, EMPLOYEE CLAIMANT BIRCH TREE COMMUNITIES, INC., EMPLOYER RESPONDENT ATA WORKERS’ COMP SI TRUST, CARRIER/ RISK MANAGEMENT SERVICES, TPA RESPONDENT OPINION FILED 19 NOVEMBER 2024 Heard before Arkansas Workers’ Compensation Commi...","fetched_at":"2026-05-19T22:46:32.198Z","links":{"html":"/opinions/alj-H401770-2024-11-19","pdf":"https://www.labor.arkansas.gov/wp-content/uploads/LUMPKINS_MARCELENE_H401770_20241119.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}