{"id":"alj-H401851-2024-09-09","awcc_number":"H401851","decision_date":"2024-09-09","opinion_type":"alj","claimant_name":"Gloria Tackett","employer_name":"Pinnacle Place Memory Care","title":"TACKETT VS. PINNACLE PLACE MEMORY CARE AWCC# H401851 September 9, 2024","outcome":"unknown","outcome_keywords":[],"injury_keywords":["shoulder","fracture","strain","back","rotator cuff"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/Tackett_Gloria_H401851_20240909.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Tackett_Gloria_H401851_20240909.pdf","text_length":21454,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H401851 \n \nGLORIA YVONNE TACKETT, EMPLOYEE CLAIMANT \n \nPINNACLE PLACE MEMORY CARE, \nEMPLOYER RESPONDENT \n \nACCIDENT FUND INSURANCE CO., \nCARRIER/THIRD-PARTY ADMINISTRATOR RESPONDENT \n \nOPINION FILED SEPTEMBER 9, 2024 \n \nHearing  before  Administrative  Law  Judge,  Steven  Porch,  on  July 24,  2024,  in  Little  Rock, \nArkansas. \n \nClaimant was represented by Mr. Gary Davis, Attorney at Law, Little Rock, Arkansas. \n \nRespondents were represented by Mr. James Arnold II, Attorney at Law, Fort Smith, Arkansas. \n \nSTATEMENT OF THE CASE \n \n A full hearing was held on this claim on July 24, 2024.  A prehearing telephone conference \ntook place on June 4, 2024. A prehearing order was entered on that date and subsequently entered \ninto evidence, with amendments by the parties, as Commission Exhibit 1. The parties’ stipulations \nare set forth. \nSTIPULATIONS \n By agreement of the parties, the stipulations applicable to this claim are as follows: \n1. The Arkansas Workers’ Compensation Commission has jurisdiction of the \nwithin claim. \n \n2. The employer/employee/carrier  relationship  existed  among  the  parties  on \nDecember  25,  2023,  when  Claimant  allegedly  sustained  a  compensable \ninjury to her right shoulder. \n \n3. Respondents have controverted this claim in its entirety. \n \n\nTACKETT H401851 \n \n \n2 \n \n \n4. Claimant’s average weekly wage of $900, entitles her to a temporary total \ndisability rate of $600, and a permanent partial disability rate of $450.\n1\n \nISSUES \n The parties have identified the following issues to be adjudicated: \n1. Whether  Claimant sustained  compensable  injuries to  her right shoulder by  specific \nincident. \n  \n2. Whether Claimant is entitled to any reasonable and necessary medical treatment. \n \n3. Whether Claimant is entitled to temporary total disability benefits from December 26, \n2023, to a date yet to be determined. \n \n4.  Whether Claimant is entitled to a controverted attorney’s fee.  \n \nAll other issues are reserved. \n \nCONTENTIONS \n \nClaimant’s Contentions: The Claimant contends that she sustained compensable injuries to \nher right shoulder due  to  involvement  with  a  physically  aggressive  patient.  Claimant  contends \nentitlement to payment of temporary disability benefits from approximately December 25, 2023, \nand continuing through a date yet to be determined. It appears that Respondents may have paid \nsome benefits through approximately December 12, 2024, at which time Claimant was notified of \nthe Respondents controversion of the claim. Medical expenses have been incurred by Claimant. \nThe claim has been controverted for purposes of an attorney’s fee.  \nRespondents’ Contentions: Respondents contend, without waiving any other defenses, the \nMRI taken on January 19, 2024, reports exclusively chronic findings. \n \n  \n \n1\n The parties stipulated and the Commission approved Claimant’s average weekly wage, \ntemporary total disability benefits, and permanent partial disability benefits on the hearing date. \n\nTACKETT H401851 \n \n \n3 \n \n \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n Therefore, after a thorough consideration of the facts, issues, the applicable law, and the \nevidentiary record, I hereby make the following Findings of Fact and Conclusions of Law in accordance \nwith Ark. Code Ann. § 11-9-704 (Repl. 2012):   \n1. The Arkansas Workers’ Compensation Commission has jurisdiction over this claim. \n \n2. The stipulations set forth above are reasonable and are hereby accepted. \n \n3. The Claimant has not proven by the preponderance of the evidence that she sustained \ncompensable injuries to her right shoulder by specific incident nor through the course \nof employment. \n \n4. Based on my finding that 1.) Claimant did not sustain an injury by specific incident, \nand  2.) nor  did her  injury arise  out  of  and  through  the  course  of  employment, the \nremaining  issues of reasonable  and  necessary  medical  treatment,  temporary  total \ndisability benefits, and a controverted attorney’s fee are moot and will not be addressed \nin this opinion. \n \n \nCASE IN CHIEF \nSummary of Evidence \n The record is made up of Claimant’s Exhibit 1, Medical Records, that consists of 111 pages, \nRespondents’ Exhibit 1, correspondence and questionnaire, that consist of 4 pages, Respondents’ \nExhibit  2, medical  records,  consisting  of 154 pages, and Commission  Exhibit  1,  Pre-Hearing \nOrder, that consists of 5 pages. Forms AR-C and AR-1 blue-backed and made a part of this record. \nThe Claimant was the only witness testifying in the full hearing.  \nClaimant was employed as a nurse for the Respondent/Employer. On December 25, 2023, \nClaimant was attempting to break up a fight between two patients. Claimant, in her effort to break \nup the fight was punched, kicked, and choked by one of the patients. This altercation resulted in \nalleged   rotator   cuff   tears   to   her   right   shoulder. The   Claimant   reported this injury   to \nRespondent/Employer the same day. The Claimant has not worked for Respondent/Employer since \n\nTACKETT H401851 \n \n \n4 \n \n \nthat December 25, 2023, incident. However, on April 5, 2024, she accepted a job at Blossoms of \nWest Dixon Nursing Home.  \nDespite not working for the Respondent/Employer from December 25, 2023, through April \n5, 2024, Claimant did receive some medical treatment through the ER at Baptist Medical Center \n(“Baptist”) and  later  at  the  Concentra  Medical  Center (‘Concentra’). The  Claimant  went  to  the \nemergency room at Baptist on December 26, 2023. There the doctor noted that the Claimant had \ntenderness in her right shoulder. Claimant’s Exhibit 1, page 6. Claimant received an x-ray to her \nright shoulder that found no acute fracture or dislocation. However, osteoarthritis was present in \nthe glenohumeral and AC joint. Claimant’s Exhibit 1, page 8. Claimant’s final diagnosis from her \nER visit was a strain to her lower back and to her shoulder. Claimant’s Exhibit 1, page 17. Claimant \nreceived a Toradol injection and was released.  \nRespondent/Employer  next  sent  Claimant  to  Concentra  on  January  3,  2024.  There, Dr. \nClint Bearden, Physician Assistant, assessed the Claimant as having a right rotator cuff tear and \nsuspected it was an infraspinatus tear. Claimant’s Exhibit 1, page 21. The Claimant was allowed \nto return to work on January 3, 2024, with restrictions, i.e. no reaching above shoulders or activities \nthat would involve physical altercations. Claimant’s Exhibit 1, page 26. Claimant also underwent \nphysical therapy. Claimant’s Exhibit  1,  pages  27 – 28.   Dr.  Bearden  ordered  an  MRI  at  Chenal \nMRI for Claimant on January 19, 2024. Claimant’s Exhibit 1, pages 40 – 41.  This MRI report \nshows a  complete  full  thickness  tear  of  the  supraspinatus  tendon  with  approximately  5.5  cm  of \nretraction just proximal to the glenoid. Claimant’s Exhibit 1, pages 40 – 41. The report also shows \na complete full-thickness tear of the infraspinatus tendon with approximately 5 cm of retraction. \nClaimant’s Exhibit 1, pages 40 – 41.  Both tears are age indeterminate and suggestive of chronicity \nbased  on the  associated  moderate  supraspinatus  and  the  severe  infraspinatus  muscular  atrophy. \n\nTACKETT H401851 \n \n \n5 \n \n \nClaimant’s Exhibit 1, pages 40 – 41.  The report also revealed a mild subscapularis tendinosis with \nlow-grade  partial  thickness  articular  surface  tear  of  the  subscapularis  tendon  and  a  tear  with \nretraction of the long head of the bicep’s tendon. Claimant’s Exhibit 1, pages 40 – 41. There were \nalso degenerative tears of the superior, anterior, and inferior labrum muscular atrophy. Claimant’s \nExhibit 1, pages 40 – 41.  \nClaimant has had previous injuries to her right shoulder. While working for the Arkansas \nDepartment  of  Correction, Wrightsville  Unit, Claimant  injured  her  right  shoulder  when  she \nattempted to catch a medication box falling from a cart. Respondents’ Exhibit 2, page 35. Claimant \nunderwent an MRI at Chenal MRI on March 10, 2016. The report shows that Claimant had a near \ncomplete tear of her supraspinatus with a few intact anterior leading fibers. Respondents’ Exhibit \n2, page 46. The tear continues posteriorly into the conjoined tendon and infraspinatus as a moderate \ngrade  articular  surface  tear  with  approximately  2.5  cm  medial  retraction  of  the  articular  fibers. \nRespondents’ Exhibit 2, page 46. She also had minimal atrophy of the supraspinatus muscle fiber. \nRespondents’ Exhibit 2, page 46. The report further reveals the intra-articular portion of the long \nhead of the bicep’s tendon also appear significantly degenerated and torn with longitudinal split \ntear  extending  into  the vessel groove. Respondents’ Exhibit 2, page 46. The report also shows \nmultiple degenerative changes. Respondents’ Exhibit 2, page 46.  \nThe Claimant also received an MRI from Arkansas Specialty MRI Center on March 29, \n2016, due to a fall that she claims reinjured her right shoulder. Respondents’ Exhibit 2, page 53. \nThe fall took place after her right shoulder injury involving the medication box. This MRI report \nfound   a   large   full-thickness   tear   of   the   supraspinatus   and   infraspinatus   tendons   with \nmusculotendinous  retraction  and  large  gaps. Respondents’ Exhibit 2, page 53. The  report  also \nnoted  there  may  be  some  mild  atrophy.  The  report further  revealed a  concern  for  a  focal \n\nTACKETT H401851 \n \n \n6 \n \n \nlongitudinal  split  tear  in  the  bicipital  tendon  at  the  level  of  the  proximal  humeral  diaphysis. \nRespondents’ Exhibit 2, page 53. The report finally noted tendinopathy of the subscapularis tendon \nand biceps anchor. Respondents’ Exhibit 2, page 53.  \nDr. Theodore Hronas, Board Certified Radiologist, reviewed three MRIs and radiographs \npreviously  mentioned  in  this  opinion.  Respondents’  Exhibit  2,  pages  150-151.    Dr.  Hronas \nsummarized this report in Respondents’ Exhibit 2, pages 151 -152, and found that the:  \n“...initial MRI exams of the right shoulder demonstrate evidence of a tear of the \ndistal  supraspinatus  tendon  that  progressed  significantly  in  a  short  period  of  time,  with \nfindings of complete tears of both the supraspinatus and infraspinatus tendons on March \n29,  2016.  The  most  recent  MRI  exam  on  the  right  shoulder,  01/19/2024,  demonstrates \nsevere   osteoarthritic   change   of   the   right   glenohumeral   joint   with   extensive   bone \nremodeling  and  chronic  tears  and  severe  muscle  atrophy  of  both  the  supraspinatus  and \ninfraspinatus  tendons  as  described.  This  degree  of  osteoarthritic  change  and  the  chronic \ntendons tears with severe muscle atrophy takes years to develop. There is no reactive joint \neffusion,  edema,  or  any  objective  findings  of  an  acute  or  recent  injury  of  the  right \nshoulder.”  \n \nDr.  Hronas also reviewed radiographs of Claimant’s right shoulder that were taken on \nJanuary 3, 2024, approximately one week after the date of the injury. Respondents Exhibit 2, page \n151. The radiographs revealed a severe osteoarthritic change of the right shoulder with abnormal \nsuperior  subluxation  of  the  humeral  head  resulting  in  loss  of  the  normal  subacromial  space. \nRespondents  Exhibit  2,  page  151. Dr.  Hronas opined  that  the  loss  of  the  subacromial  space  is \npathognomonic for a chronic rotator cuff tear. Respondents Exhibit 2, page 151. Dr. Hronas also \nnoted a right humeral head bone remodeling, sclerosis, and subchondral cystic formation present \nwithin the glenoid. Respondents Exhibit 2, page 151. Dr. Hronas further noted the shortening of \nthe distal right clavical related to chronic osteolysis. Respondents Exhibit 2, page 151. There was \nno evidence of an acute fracture or dislocation. Respondents Exhibit 2, page 151. Dr. Hronas also \nstated that in his  review  findings  were  made  within  a  reasonable  degree  of  medical  certainty. \n\nTACKETT H401851 \n \n \n7 \n \n \nRespondents’ Exhibit 2, page 151-152. Moreover, Claimant testified that she has never had surgery \non her right shoulder to repair the tendon tears. Transcript, page 17, lines 9-23.  \nAdjudication \nA. Whether Claimant sustained compensable injuries to her right shoulder by \nspecific incident. \nTo determine compensability, I find Arkansas Code Annotated § 11-9-102(4)(A)(i) (Repl. \n2012), applies to the analysis of Claimant’s alleged injuries, and it defines “compensable injury” \nas: \n(i) An accidental injury causing internal or external physical harm to the body . . . \narising out of and in the course of employment and which requires medical services \nor results in disability or death.  An injury is “accidental” only if it is caused by a \nspecific incident and is identifiable by time and place of occurrence[.] \n \nA compensable injury must be established by medical evidence supported by objective findings.  \nArk.  Code  Ann.  §  11-9-102(4)(D) (Repl. 2012).  “Objective findings” are those findings that \ncannot come under the voluntary control of the patient.  Id. § 11-9-102(16).  The element “arising \nout of . . . [the] employment” relates to the causal connection between the claimant’s injury and \nhis or her employment.  City of El Dorado v. Sartor, 21 Ark. App. 143, 729 S.W.2d 430 (1987).  \nAn  injury  arises  out  of  a  claimant’s  employment  “when  a  causal  connection  between  work \nconditions and the injury is apparent to the rational mind.”  Id. \nIf the claimant fails to establish by a preponderance of the evidence any of the requirements \nfor  establishing  compensability,  compensation  must  be  denied.   Mikel  v.  Engineered  Specialty \nPlastics,  56  Ark.  App.  126,  938  S.W.2d  876  (1997). Again,  this  standard  means  the  evidence \nhaving greater weight or convincing force.  Barre v. Hoffman, 2009 Ark. 373, 326 S.W.3d 415; \nSmith v. Magnet Cove Barium Corp., 212 Ark. 491, 206 S.W.2d 442 (1947). \n\nTACKETT H401851 \n \n \n8 \n \n \n A claimant’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 much \nweight to accord to that person’s testimony are solely up to the Commission.  White  v.  Gregg \nAgricultural Ent., 72 Ark. App. 309, 37 S.W.3d 649 (2001).  The Commission must sort through \nconflicting evidence and determine the true facts.  Id.  In so doing, the Commission is not required \nto  believe  the  testimony  of  the  claimant  or  any  other  witness  but  may  accept  and  translate  into \nfindings of fact only those portions of the testimony that it deems worthy of belief.  Id. \nDiscussion.  I find the Claimant has not proven by the preponderance of the evidence that \nshe sustained compensable injuries to right shoulder 1.) by specific incident, nor 2.) arising out of \nand through the course of employment. Claimant has injured her right shoulder twice before. First \nwhen she worked at the Wrightsville prison and a medicine box fell and she attempted to catch it \nthereby injuring her right shoulder. Transcript, page 23, lines 22 – 25, thru page 24, lines 1 – 4.  \nAs previously mentioned, Claimant underwent an MRI at Chenal MRI on March 10, 2016. The \nMRI report shows that Claimant had a near complete tear of her supraspinatus with a few intact \nanterior leading fibers. Respondents’ Exhibit 2, page 46. The tear continued posteriorly into the \nconjoined tendon and infraspinatus as a moderate grade articular surface tear with approximately \n2.5 cm medial retraction of the articular fibers. Respondents’ Exhibit 2, page 46. She also had \nminimal atrophy of the supraspinatus muscle fiber. Respondents’ Exhibit 2, page 46. The report \nfurther  reveals the intra-articular portion of the long head of the bicep’s tendon also appear \nsignificantly  degenerated  and  torn  with  longitudinal  split  tear  extending  into  the  vessel  groove. \nRespondents’  Exhibit  2,  page  46.  The  report  also  shows  multiple  degenerative  changes. \nRespondents’ Exhibit 2, page 46.  \n\nTACKETT H401851 \n \n \n9 \n \n \n The Claimant then fell and reinjured her right shoulder a few weeks after her initial injury \nto that same shoulder attempting to catch a medication box. Claimant received another MRI for \nthis injury from Arkansas Specialty MRI Center on March 29, 2016. Respondents’ Exhibit 2, page \n53. Again,  as  mentioned  earlier,  this  MRI  report  found  a  large  full-thickness  tear  of  the \nsupraspinatus  and  infraspinatus  tendons  with  musculotendinous  retraction  and  large  gaps. \nRespondents’ Exhibit 2, page 53. The report also noted  there  may  be  some  mild  atrophy and a \nconcern for a focal longitudinal split tear in the bicipital tendon at the level of the proximal humeral \ndiaphysis. Respondents’  Exhibit  2,  page  53.  The  report also  revealed tendinopathy  of  the \nsubscapularis tendon and biceps anchor. Respondents’ Exhibit 2, page 53.  \nThe Claimant never underwent corrective surgery for these injuries to her right shoulder. \nTranscript, page 17, lines 9-23. When Claimant allegedly injured herself on December 25, 2023, \nwhile attempting to break up two patients fighting, she underwent an MRI on January 19, 2024. \nThis  MRI  report  shows  a  complete  full  thickness  tear  of  the  supraspinatus  tendon  with \napproximately 5.5 cm of retraction just proximal to the glenoid. Claimant’s Exhibit 1, pages 40 – \n41.  The  report  also  shows  a  complete  full-thickness  tear  of  the  infraspinatus  tendon  with \napproximately 5 cm of retraction. Claimant’s Exhibit 1, pages 40 – 41.    Both  tears  are  age \nindeterminate and suggestive of chronicity based on the associated moderate supraspinatus and the \nsevere  infraspinatus  muscular atrophy. Claimant’s Exhibit 1, pages 40 – 41.    The  report  also \nrevealed a mild subscapularis tendinosis with low-grade partial thickness articular surface tear of \nthe  subscapularis  tendon  and  a  tear  with  retraction  of the  long  head  of the  bicep’s  tendon. \nClaimant’s Exhibit 1, pages 40 – 41. There were also degenerative tears of the superior, anterior, \nand inferior labrum. muscular atrophy. Claimant’s Exhibit 1, pages 40 – 41.  \n\nTACKETT H401851 \n \n \n10 \n \n \nBased on these reports, the Claimant has sustained numerous tears to her right shoulder, all \nwithout surgery. The alleged December 25, 2023, work-related injury appears strikingly like the \ninjuries that occurred in 2016. This necessitates the need for a medical comparison. Dr. Theodore \nHronas,  Board  Certified  Radiologist, gave  that  comparison  and reviewed  three  MRIs  and \nradiographs previously mentioned in this opinion. Respondents’ Exhibit 2, pages 150-151.    Dr. \nHronas summarized his report in Respondents’ Exhibit 2, pages 151 -152, and found that:  \n“This degree of osteoarthritic change and the chronic tendons tears with severe \nmuscle atrophy takes years to develop. There is no reactive joint effusion, edema, or any \nobjective findings of an acute or recent injury of the right shoulder.”  \n \nDr. Hronas further stated that his findings were made within a reasonable degree of medical \ncertainty. Respondents’ Exhibit 2, page 151-152. I credit Dr. Hronas report. His report made clear \nthat Claimant’s alleged work-related injury could not have occurred on December 25, 2023, but \nstated that her injuries would have taken “years to develop.” Moreover, his report concludes the \nmatter by stating that there were no ‘reactive joint effusion, edema, or any objective findings of an \nacute or recent injury of the right shoulder.” Thus, Claimant’s alleged December 25, 2023, work-\nrelated altercation could not have been the specific incident that caused her right shoulder injuries. \nMoreover, considering Dr. Hronas report that Claimant’s injuries would have taken years to \ndevelop it is also clear that Claimant’s injuries did not arise out of the course of employment with \nRespondent/Employer. We were not dealing with recent or new injuries but old injuries. Injuries, \naccording to Claimant’s own testimony, she has never had surgery to repair. Transcript, page 17, \nlines 9-23. It is Claimant’s responsibility to prove that she was injured by  specific incident and \nduring the course and scope of her employment. She has failed to do so. Thus again, Claimant has \nnot  proven  by  the  preponderance  of  the  evidence that she  sustained  a  compensable  injury by \n\nTACKETT H401851 \n \n \n11 \n \n \nspecific incident or arising out of and through the scope of employment. Therefore, her claim must \nfail. \nMISCELLANEOUS ISSUES \n Based  on  my  previous  findings that  1.) Claimant  did  not  sustain  an  injury  by  specific \nincident,  and 2.) nor  did  her  injury  arise  out  of  and  through  the  course  of  employment,  the  \nremaining issues regarding reasonable and necessary medical treatment, temporary total disability \nbenefits, and a controverted attorney’s fee are moot and will not be addressed in this opinion.  \nCONCLUSION \n In accordance with the Findings of Fact and Conclusions of Law set forth above, the parties \nshall act consistent with this opinion.  \n IT IS SO ORDERED. \n \n       ________________________________ \n       Hon. Steven Porch \n                                                                                    Administrative Law Judge","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H401851 GLORIA YVONNE TACKETT, EMPLOYEE CLAIMANT PINNACLE PLACE MEMORY CARE, EMPLOYER RESPONDENT ACCIDENT FUND INSURANCE CO., CARRIER/THIRD-PARTY ADMINISTRATOR RESPONDENT OPINION FILED SEPTEMBER 9, 2024 Hearing before Administrative Law Judge, Steven Porch, o...","fetched_at":"2026-05-19T22:48:38.197Z","links":{"html":"/opinions/alj-H401851-2024-09-09","pdf":"https://labor.arkansas.gov/wp-content/uploads/Tackett_Gloria_H401851_20240909.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}