{"id":"alj-H402231-2025-05-23","awcc_number":"H402231","decision_date":"2025-05-23","opinion_type":"alj","claimant_name":"Whitney Bray","employer_name":"Sizzlin’ Skillet LLC","title":"BRAY VS. SIZZLIN’ SKILLET LLC AWCC# H402231 May 23, 2025","outcome":"granted","outcome_keywords":["granted:1"],"injury_keywords":["back","lumbar","cervical","knee","hip"],"pdf_url":"https://www.labor.arkansas.gov/wp-content/uploads/Bray_Whitney_H402231_20250523.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Bray_Whitney_H402231_20250523.pdf","text_length":39231,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H402231 \n \n \nWHITNEY BRAY, EMPLOYEE CLAIMANT \n \nSIZZLIN’ SKILLET LLC, \n UNINSURED EMPLOYER RESPONDENT \n \n \nOPINION FILED MAY 23, 2025 \n \nHearing before Administrative Law Judge O. Milton Fine II on April 25, 2025, in Forrest \nCity, St. Francis County, Arkansas. \n \nClaimant pro se. \n \nRespondent\n1\n represented\n2\n by   Ms. Ashley   Dawn   Walker   Love, West   Memphis, \nArkansas. \n \n \nSTATEMENT OF THE CASE \n \n On April  25,  2025,  the  above-captioned  claim  was heard  in Forrest  City, \nArkansas.  A prehearing conference took place on March 10, 2025.  Respondent failed \nto  appear  at  that  conference.   The Prehearing Order  entered  on that  date pursuant  to \nthe conference was admitted without objection as Commission Exhibit 1. \nStipulations \n The parties reached no stipulations. \n \n \n1\nDue  to  Respondent’s  repeated  failure  to  file  a  prehearing  questionnaire \nresponse,  and  to  its  failure  to  appear  on  the  prehearing  telephone  conference,  it  was \nbanned from offering any documents into evidence and from calling any witnesses.  See \nCommission Exhibit 2. \n \n \n2\nMs.  Love,  who  has  an  ownership  interest  in  Respondent,  is  not  an  attorney.  \nShe was permitted to represent it before the Commission under Ark. Code Ann. § 11-9-\n704(c)(1)(A)(i)  (Repl.  2012).   See  Bouland  v.  Erwin  Keith,  Inc.,  2013  Ark.  App.  460, \n2013 Ark. App. LEXIS 460. \n\nBRAY – H402231 \n \n2 \nIssues \n The  parties  discussed  the  issues  set  forth  in  Commission  Exhibit  1.   The \nfollowing were litigated: \n1. Whether  Claimant  was  an  employee  of  Respondent  employer  on  August \n3, 2023. \n2. Whether  Claimant  sustained  a  compensable  injury  to  her  lower  back  by \nspecific incident. \n3. Whether   Claimant is   entitled   to   reasonable   and   necessary   medical \ntreatment of her alleged injury. \n4. Whether  Claimant  is  entitled  to  temporary  total  disability  benefits  from \nJanuary 2, 2024, to a date yet to be determined. \n5. What was Claimant’s average weekly wage? \nAll other issues have been reserved. \nContentions \n The respective contentions of the parties read as follows: \n Claimant: \n1. Claimant  contends  that  she  sustained  a  compensable  injury  to  her  lower \nback  by  specific  incident  on  August  3,  2023,  and  that  she  is  entitled  to \nmedical and indemnity benefits pursuant thereto. \n\nBRAY – H402231 \n \n3 \nRespondents: \n1. Respondent failed to offer any contentions. \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n After  reviewing  the  record  as  a  whole,  including  medical  reports  and  other \nmatters  properly  before  the  Commission,  and  having  had  an  opportunity  to  hear  the \ntestimony  of  the witness and  to  observe her demeanor,  I  hereby  make  the  following \nfindings  of  fact  and  conclusions  of  law  in  accordance  with  Ark.  Code  Ann.  §  11-9-704 \n(Repl. 2012): \n1. The Arkansas Workers’ Compensation Commission has jurisdiction over \nthis claim. \n2. Claimant has proven by a preponderance of the evidence that she was an \nemployee of Respondent on August 3, 2023. \n3. Respondent   owes   the   $361.75   transcript   bill   of   my   reporter,   Dawn \nCrawford,  and  is  hereby  ordered  to  pay  it  as  outlined  in  the  letter  dated \nMay 21, 2025, by June 20, 2025. \n4. Claimant has proven  by  a  preponderance  of  the  evidence  that she \nsustained  a  compensable  injury to  her lower  back by  specific  incident on \nAugust 3, 2023. \n5. Claimant  has  proven  by  a  preponderance  of  the  evidence  that she  is \nentitled    to    reasonable    and    necessary medical treatment   of    her \ncompensable lower   back injury.      Moreover, she   has   proven   by   a \n\nBRAY – H402231 \n \n4 \npreponderance of the evidence that all of her lower back treatment that is \nin evidence was reasonable and necessary. \n6. Claimant  has not proven  by a  preponderance  of  the evidence  that she  is \nentitled to temporary total disability benefits for any period. \n7. Because of Finding/Conclusion No. 6, supra, the issue of the valuation of \nClaimant’s average weekly wage is moot and will not be addressed. \nCASE IN CHIEF \nSummary of Evidence \n Claimant was the sole witness. \n In  addition  to  the Prehearing Order  discussed  above,  admitted  into  evidence  in \nthis case were the following:  Commission Exhibit 2, documents underlying the decision \nto  bar  Respondent  from  presenting  a  defense,  consisting  of  four  pages; Claimant’s \nExhibit 1, a compilation of her medical records, consisting of 43 pages; and Claimant’s \nExhibit 1, non-medical records, consisting of 14 pages. \nAdjudication \nA. Employment Relationship \n Introduction.   Claimant  has  alleged  that  on August  3,  2023,  she  sustained  a \ncompensable injury while employed by Respondent.  If she does not meet the definition \nof “employee” contained in Ark. Code Ann. § 11-9-102(9)(A) (Supp. 2024), her alleged \ninjury  is  not  one  governed  by  the  provisions  of  the  Arkansas  Workers'  Compensation \nAct. \n\nBRAY – H402231 \n \n5 \n Standards.  Whether a claimant was an independent contractor or an employee \nat  the  time  he  was  injured  is  a  question  of  fact.   Moore  v.  Long  Bell  Lumber  Co.,  228 \nArk. 345, 307 S.W.2d 533 (1957); Franklin v. Arkansas Kraft, Inc., 5 Ark. App. 264, 635 \nS.W.2d  286  (1982).  Section 11-9-102(9)(A) was  amended in  2019  by  the  General \nAssembly to  read  that a claimant’s status is to be determined by consideration of the \ntwenty-factor  test  required  by  the Empower Independent  Contractors  Act  of  2019,  Ark. \nCode Ann. §§ 11-1-201 et seq. (Supp. 2019).  Per § 11-9-204, that test comes from IRS \nRev. Rul. 87-41, 1987-1 C.B. 296: \n(1) A  person  for  whom  a  service  is  performed  has  the  right  to  require \ncompliance  with  instructions,  including  without  limitation  when, \nwhere, and how a worker is to work; \n \n(2) A worker is required to receive training, including without limitation \nthrough: \n(A) Working with an experienced employee; \n(B) Corresponding   with   the   person   for   whom   a   service   is \nperformed; \n(C) Attending meetings; or \n(D) Other training methods; \n \n(3) A  worker's  services  are  integrated  into  the  business  operation  of \nthe  person for  whom a  service  is  performed  and are  provided  in  a \nway  that  shows  the  worker's  services  are  subject  to  the  direction \nand control of the person for whom a service is performed; \n \n(4) A  worker's  services  are  required  to  be  performed  personally, \nindicating an interest in the methods used and the results; \n \n(5) A  person  for  whom  a  service  is  performed  hires,  supervises,  or \npays assistants; \n \n(6) A   continuing   relationship   exists   between   a   worker   performing \nservices and a person for whom a service is performed; \n \n(7) A  worker  performing  a  service  has  hours  set  by  the  person  for \nwhom a service is performed; \n\nBRAY – H402231 \n \n6 \n \n(8) A worker is required to devote substantially full time to the business \nof  the  person  for  whom  a  service  is  performed,  indicating  the \nperson  for  whom  a  service  is  performed  has  control  over  the \namount  of  time  the  worker  spends  working  and  by  implication \nrestricts the worker from obtaining other gainful work; \n \n(9) \n(A) The  work  is  performed  on  the  premises  of  the  person  for  whom  a \nservice is performed, or the person for whom a service is performed \nhas control over where the work takes place. \n \n(B) A  person  for  whom  a  service  is  performed  has  control  over  where \nthe work takes place if the person has the right to: \n(i) Compel the worker to travel a designated route; \n(ii) Compel  the  worker  to  canvass  a  territory  within  a  certain \ntime; or \n(iii) Require that the work be done at a specific place, especially \nif the work could be performed elsewhere; \n \n(10) A  worker  is  required  to  perform  services  in  the  order  or  sequence \nset by the person for whom a service is performed or the person for \nwhom  a  service  is  performed  retains  the  right  to  set  the  order  or \nsequence; \n \n(11) A worker is required to submit regular oral or written reports to the \nperson for whom a service is performed; \n \n(12) A  worker  is  paid  by  the  hour,  week,  or  month  except  when  he  or \nshe is paid by the hour, week, or month only as a convenient way \nof paying a lump sum agreed upon as the cost of a job; \n \n(13) A  person  for  whom  a  service  is  performed  pays  the  worker's \nbusiness or traveling expenses; \n \n(14) A person for whom a service is performed provides significant tools \nand materials to the worker performing services; \n \n(15) A worker invests in the facilities used in performing the services; \n \n(16) A worker realizes a profit or suffers a loss as a result of the services \nperformed  that  is  in  addition  to  the  profit  or  loss  ordinarily  realized \nby an employee; \n \n\nBRAY – H402231 \n \n7 \n(17) A  worker  performs  more  than  de  minimis  services  for  more  than \none (1) person or firm at the same time, unless the persons or firms \nare part of the same service arrangement; \n \n(18) A worker makes his or her services available to the general public \non a regular and consistent basis; \n \n(19) A  person  for  whom  a  service  is  performed  retains  the  right  to \ndischarge the worker; and \n \n(20) A worker has the right to terminate the relationship with the person \nfor  whom  a  service  is  performed  at  any  time  he  or  she  wishes \nwithout incurring liability. \n \nThe preface to that regulation reads: \n \nAs  an aid to  determining  whether an  individual  is an  employee  under  the \ncommon  law  rules,  twenty  factors  or  elements  have  been  identified  as \nindicating  whether  sufficient  control  is  present  to  establish  an  employer-\nemployee relationship.  The twenty factors have been developed based on \nan  examination  of  cases  and  rulings  considering  whether  an  individual  is \nan employee.  The degree of importance of each factor varies depending \non  the  occupation and  the  factual  context  in  which  the  services  are \nperformed.  The  twenty  factors  are  designed  only  as  guides for \ndetermining  whether  an  individual  is  an  employee;  special  scrutiny  is \nrequired in applying the twenty factors to assure that formalistic aspects of \nan arrangement designed to achieve a particular status do not obscure the \nsubstance of the arrangement (that is, whether the person or persons for \nwhom  the  services  are  performed exercise  sufficient  control over  the \nindividual for the individual to be classified as an employee). \n \n(Emphasis added)  The degree of control is still the key determination.  This goes along \nwith  what  the  court  wrote  in Franklin  v.  Arkansas  Kraft,  Inc.,  5  Ark.  App.  264,  635 \nS.W.2d 286 (1982): \nThere  are  numerous  factors  which  may  be  considered  in  determining \nwhether  an  injured person  is  an  employee  or  an  independent  contractor \nfor purposes of workers’ compensation coverage.  Obviously, the relative \nweight  to  be  given  the  various  factors  must  be  determined  by  the \nCommission.  Some of the factors which might be considered, depending \non the facts of a given case, are [the nine factors omitted]  These are not \nall the factors which may conceivably be considered in a given case, and it \n\nBRAY – H402231 \n \n8 \nmay not be necessary in some cases for the Commission to consider all of \nthese  factors.  Traditionally,  the  “right  to  control”  test  has  been \nsufficient  to  decide  most  of  the  cases,  although  many  variations  of \n“control” have probably been squeezed into that test. \n \n(Emphasis added) \n \n Under Ark. Code Ann. § 11-9-705(a)(3) (Repl. 2012), Claimant must prove by a \npreponderance  of  the  evidence  that  Respondent  was  her employer.    This  standard \nmeans the evidence having greater weight or convincing force.  Barre v. Hoffman, 2009 \nArk.  373,  326  S.W.3d  415; Smith  v.  Magnet  Cove  Barium  Corp.,  212  Ark.  491,  206 \nS.W.2d 442 (1947). \n A claimant’s testimony is never considered uncontroverted.  Nix v. Wilson World \nHotel,  46  Ark.  App.  303,  879 S.W.2d  457 (1994).    The determination  of a  witness’ \ncredibility and how much weight to accord to that person’s testimony are solely up to the \nCommission.  White v. Gregg Agric. Ent., 72 Ark. App. 309, 37 S.W.3d 649 (2001).  The \nCommission must sort through conflicting evidence and determine the true facts.  Id.  In \nso doing, the Commission is not required to believe the testimony of the claimant or any \nother  witness,  but may  accept  and  translate  into  findings  of  fact  only  those portions of \nthe testimony that it deems worthy of belief.  Id. \n After  consideration of the evidence  in  light of  the  above authorities,  I  find  that a \npreponderance  of  the  evidence readily establishes  that  Claimant  was  an  employee  of \nRespondent on the alleged date of injury, August 3, 2023.  All of the elements of the 20-\nfactor  test that apply  to  the  situation  at hand—a server  working  at a  restaurant—show \nthat  Claimant  was  an  employee  there  as  opposed  to  an  independent  contractor.   The \nfirst factor—the degree of control—most certainly does.  And it shows that Respondent \n\nBRAY – H402231 \n \n9 \nhad the  right  to  require  compliance by  Claimant with its instructions,  including  without \nlimitation when, where, and how she was to work.  The second factor does not apply to \nthis  situation.    The  third  factor,  however,  certainly  applies  and  weighs  in  favor  of \nClaimant  being  an  employee  of  Respondent.    Her services as  a  waitress  were \nintegrated  into Respondent’s business  operation such  that  a  customer  would  easily \ndiscern  that  her services were  subject  to  the  direction  and  control  of Respondent.    As \nfor the fourth factor, Claimant’s services were performed personally.  The fifth factor \ndoes  not  apply  here.    With  regard  to  the  sixth  and  seventh,  however,  Claimant  had  a \ncontinuing   relationship   with   Respondent;   and   her   hours   there   were   set   by   the \nestablishment.    As  for  the  eighth  and  ninth  factors,  Claimant worked  20  to  25  hours  a \nwork for Respondent—substantially full-time—and the work had to be performed on the \npremises  of  Respondent.   With regard to the tenth, Claimant’s services as a waitress \nmade  her  part  of  a  food-serving  process  that  had  ordered  steps.    Therefore,  she  was \nrequired  to  perform her services  in  the  order  or  sequence  set  by Respondent.    The \neleventh  factor  does  not  apply  here.    As  for  the  twelfth, Respondent  paid  Claimant  by \nthe hour.  The thirteenth factor does not apply.  The fourteenth likewise weighs in favor \nof  employment  status  because  Respondent,  a  restaurant,  furnished  Claimant  with  the \ntools  with  which  she  did  her  job.    Concerning  the  fifteenth,  she  did  not  invest  in  the \nrestaurant.  With regard to the sixteenth, Claimant did realize a profit or suffer a loss as \na result of the business that was in addition to the profit or loss ordinarily realized by an \nemployee.  While  she  received  tips,  they  are  something  that  is  ordinarily  realized  by  a \nrestaurant employee.  The seventeenth factor, concerning whether Claimant performed \n\nBRAY – H402231 \n \n10 \nmore  than  de  minimis  services  for  more  than  one  person  or  firm  at  the  same  time, \nunless the persons or firms are part of the same service arrangement, likewise argues \nin  favor  of  her  employee  status.    All  of  her  waitressing  services  were  for  customers  of \nRespondent.   As for the eighteenth factor, Claimant’s services  were available  to  the \ngeneral public only to the extent that they were offered through the restaurant.  Finally, \nconcerning  the  last  two  factors,  the  restaurant  had  a  right  to  discharge  Claimant,  and \n(as shown infra), she had a right to resign without incurring liability. \n To repeat, each and every one of the applicable factors point to Claimant being \nan  employee  of  Respondent,  as  opposed  to  an  independent  contractor.    She  has \nproven by a preponderance of the evidence that she had this status on the alleged date \nof injury, August 3, 2023. \nB. Compensability \n Introduction.  Again, Claimant has argued that she suffered a compensable lower \nback injury in a specific incident on August 3, 2023, while working for Respondent. \n Standards.    In  order  to  prove  the  occurrence  of  an  injury  caused  by  a  specific \nincident identifiable by time and place of occurrence, a claimant must show that:  (1) an \ninjury  occurred  that  arose  out  of  and  in  the  course  of  his  employment;  (2)  the  injury \ncaused internal or external harm to the body that required medical services or resulted \nin  disability  or  death;  (3)  the  injury  is  established  by  medical  evidence  supported  by \nobjective  findings,  which  are  those  findings  which  cannot  come  under  the  voluntary \ncontrol  of  the  patient;  and  (4)  the  injury  was  caused  by  a  specific  incident  and  is \nidentifiable by time and place of occurrence.  Mikel v. Engineered Specialty Plastics, 56 \n\nBRAY – H402231 \n \n11 \nArk.   App.  126,  938  S.W.2d   876   (1997).     If  a   claimant  fails  to   establish   by   a \npreponderance  of  the  evidence  any  of  the  above  elements,  compensation  must  be \ndenied.  Id. \n Evidence.   Claimant’s testimony was that she went to work for Respondent, a \nWest  Memphis restaurant,  in  January  2022  as  a waitress there.   She  described  her \nduties as a server: \nI  came  in  in  [sic]  the  morning,  and  I  set  up  the  tables,  made  sure  the \ntables  were  set up.   I prepared  the  drinks, the  teas  and  stuff  for  the  day, \nand I waited on the people, brought them their drinks, and cleaned off their \ntables and such, washed the dishes from their dishes. \n \nTurning  to  the  alleged August  3,  2023,  event,  which  Claimant  testified  took  place  at \napproximately 10:30 a.m., she related: \nI carry this big—big thing of tea and first, it’s a big pot, and I have to lift it \nup on this burner, and there’s a big urn of tea.  There’s two of them.  You \nhave to make unsweetened and sweetened, and I was carrying it, and my \nback  popped.    I  was  getting  the  other  one—a  couple  of  the  guys  to  help \nme carry it because it’s heavy to lift it up on top of the table, and I was told \nI wasn’t allowed to do that . . . [a]nd I informed [Ashley Dawn Walker Love] \nthat I was hurt.  I hurt my back.   She—I told her, and she told me that was \nmy problem, to figure it out. \n \nTestifying further, Claimant explained that the tea urn was “a big cylinder”—similar  to \nwhat is in use at other restaurants.  She was required, as part of her job duties, to pick it \nup off the floor in the back of the establishment, carry it to the front, and place it on the \ncounter so that it could be used to fill and refill beverage glasses.  Because the urn was \nso heavy and full, Claimant had to carry it between her legs while walking with it.  After \nher  back  popped, which  occurred  after  she  had  taken only a  few  steps, Claimant was \nunable to hoist the container to the counter, which was three to four feet high.  She had \n\nBRAY – H402231 \n \n12 \nto  enlist  the  aid  of  a  co-worker,  Adam  Soto, to  help  her do lift  it.  Claimant stated  that \nshe informed him that she had hurt her back.  After the alleged incident, she finished out \nher workday. \n It was the testimony of Claimant that she began to experience “severe pain” in \nher back after this incident.  She had difficulty straightening up.  The first treatment she \nunderwent  took  place  the  day  after  the  alleged  incident,  on  August  4,  2023.    On  that \noccasion, prior to going to work, she went to Marion Minor Medical Clinic.  The clinic set \nher  up  to  undergo  an  MRI  at  Methodist  Diagnostics.    Thereafter,  she  treated  at  NEA \nBaptist   Hospital   with   Danny   Ricker.  She   has   had   only   one   physical   therapy \nappointment.    The  reason  for  this  is  that  the  therapy  was  so  painful  that  it  had  to  be \ndiscontinued.  Claimant added that she recently underwent a second MRI.  But she has \nnot seen the report, and it is not in evidence.  Currently, she is treating for her back with \nDr.  Ted  Shields at  Pain  Treatment  Centers  of  America  (“PTCOA”).    However,  his \nrecords are not in evidence, either.  According to Claimant, she has declined to undergo \ninjections  at  PTCOA  because  she  is  afraid  to  do  so.    The  medication  that  she  is \nreceiving for her back consists of Percocet, which is a pain killer.  Later in her testimony, \nshe admitted that as of the date of her alleged back injury, she was already taking pain \nkillers.  Claimant hastened to add that while as of August 3, 2023, she was only taking \nthe medication on an as-needed basis, she now takes it four times a day.  Dr. Shields \nprescribed her a back brace. \n\nBRAY – H402231 \n \n13 \n The medical records  in  evidence  reflect  that Claimant  underwent  a  lumbar  MRI \non  October  30,  2023.    In  reviewing  this  MRI  against  one  that  Claimant  had  on \nNovember 8, 2019, Dr. Christopher Todd authored a report that reads in pertinent part: \nThe   lumbar   vertebral   bodies   remain   grossly   normal   in   height   and \nalignment.   Disc  space  height  is  well  maintained.    Disc  desiccation  is \ndemonstrated   at   L5-S1.      Marrow   signal   is   unremarkable.      Conus \nmedullaris is normal in appearance terminating at the T12-L1 disc space.  \nMild  facet  osteoarthropathy  is  demonstrated  involving  the  mid  and  lower \nlumbar spine. \n \nT12-L1:    No  significant  disk  bulging,  canal  stenosis,  lateral  recess  or \nneural foraminal narrowing. \n \nL1-L2:  No significant disk bulging, canal stenosis, lateral recess or neural \nforaminal narrowing. \n \nL2-L3:  No significant disk bulging, canal stenosis, lateral recess or neural \nforaminal narrowing. \n \nL3-L4:  No significant disk bulging, canal stenosis, lateral recess or neural \nforaminal narrowing. \n \nL4-L5:    Generalized  disc  bulging  is  demonstrated.    There  is  no  central \ncanal  stenosis  or  lateral  recess  narrowing.    Mild  to  moderate \nneural foraminal narrowing is demonstrated bilaterally. \n \nL5-S1:    Generalized  disc  bulging  is  demonstrated.    There  is  no  central \ncanal  stenosis  or  lateral  recess  narrowing.    Mild  to  moderate \nneural foraminal narrowing is demonstrated on the left. \n \nIMPRESSION:  Generalized disc bulging involving the lower lumbar spine \nresulting in mild to moderate neural foraminal narrowing bilaterally at L4-5 \nand  moderately  advanced  neural  foraminal  narrowing  [on]  the  left  at  L5-\nS1. \n \n On December 2, 2023, Claimant presented to Michael Charlton, N.P., at Marion \nMinor Medical Clinic “with a 2 day history of lumbar pain.”  The report of that visit \n\nBRAY – H402231 \n \n14 \ncontinues:  Denies known trauma.  Denies unusual activity.”  Charlton’s examination \nnotes read in pertinent part: \nBACK:  Right lumbar paraspinous musculature with trigger points.  Normal \ncurvature,  no  vertebral  tenderness,  motor  function,  sensation  to  light \ntouch, and DTR’s intact.  Negative cervical compression test.  Straight leg \nraise positive on right at 20 degrees, crossed legs pulling down right leg to \nknee.  Patient does describe occasional muscle spasms with lying flat and \nsitting.    Side  to  side  with  mild  pain  and  no  vertebral  tenderness.    No \nmention  of  bulging  disk  in  past,  and  no  disc  tenderness  in  lumbar  or \nsacrum today. \n \nClaimant returned to Charlton on March 15, 2024, with essentially the same findings as \nin December 2023. \n On April 3, 2024, Claimant went to the NEA Baptist Neurosurgery Clinic and saw \nDanny Ricker, N.P.  The report contains the following history:  “Whitney B. Bray is [a] 57 \ny.o. year old [sic] female that presents with lower back pain.  It was caused by lifting a \nheavy pot, she has had problems since August.”  Ricker also wrote: \nRadiographic studies: \nI  have  personally  reviewed  the  images  listed  below  and  these  are  my \nfindings  from   looking   at   these   images.     These  findings   have   been \ndiscussed with the patient. \n \nLumbar MRI revealed:  10/30/23 (outside) \nL2-3 bilateral facet disease \nL3-4 bilateral facet disease \nL4-5 diffuse bulge with mod bilateral foraminal stenosis \nL5-S1 diffuse bulge with mod left foraminal stenosis \n \nRicker referred Claimant to physical therapy. \n On  April  26,  2024,  Claimant  went  to  Fenter  Physical  Therapy  for  an  evaluation.  \nShe  told  the  therapist,  Joey  Britt, that  since  August  2203,  her  lower  back  had  been \nhurting and  had  been  progressively  worsening  to  the  point  that  lengthy  bouts  of \n\nBRAY – H402231 \n \n15 \nstanding or  walking had  become painful.  Britt wrote:  “Pt has already had a[n] MRI  of \nthe  lumbar  spine  and  Medical  records  indicate  degenerative  changes  including  disc \nbulges at multiple levels along with moderate to severe foraminal stenosis at the lower \nlumbar levels.” \n Claimant returned to  the  NEA  Baptist  Neurosurgery  Clinic  on  June  25,  2024.  \nThere, she presented with gluteal and sacroiliac pain.  She told treating personnel that \nthe  most  recent  episode  of  pain  started  more  than  one  month  earlier.    Ricker  wrote:  \n“This is a chronic problem.”  Claimant  told him that  she  had  been  on  Percocet  since \n2019, and that she had only tried one visit to physical therapy—on April 26, 2024—but \ndiscontinued it because it made her pain worse.  Ricker wrote: \nLumbar MRI revealed @ Methodist Diagnostic 5/12/2024 \n \nL1-2 min bulge with bilateral facet disease \nL2-3  min  bulge  with  min  bilateral  foraminal  stenosis  and  bilateral  facet \ndisease \nL4-5  bilateral  facet  disease  with  mod  left  worse  than  right  foraminal \nstenosis \nL5-S1 left bulge with mod bilateral foraminal stenosis \n \nRicker recommended that she discuss with her physician whether she should undergo \nan injection in her lower back versus her right hip. \n On December 21, 2024, Claimant underwent another MRI.  It reads in pertinent \npart: \nL4-L5:    Facet  and  endplate  degenerative  changes.    Some  asymmetric \nbulge  to  the  left.    Moderate  to  marked  left  and  moderate  right \nforaminal stenosis.  No canal stenosis. \nL5-S1:    Facet  and  endplate  degenerative  changes  along  with  trace  disc \nbulging.    Moderate  to  marked  bilateral  foraminal  stenosis.    No \ncanal stenosis. \n \n\nBRAY – H402231 \n \n16 \nIMPRESSION: \n1. Multilevel    foraminal    stenosis    due    to    facet    and    endplate \ndegenerative  changes  with  some  low-grade  bulging  at  L4/5  and \nL5/S1. \n2. No large disc herniation or canal stenosis. \n \nDiscussion.   In  this  case,  the  evidence reflects that  Claimant  has  objective \nfindings  of  an  injury  to  her lower  back.    These  findings  come from multiple MRIs that \nClaimant  has  undergone  since the  alleged  date  of  injury  that show  that  she  has disc \nbulging at  L4-5 and  L5-S1.  Further,  the  injury  caused  internal  or  external  harm  to  the \nbody that required medical services. \n As  for  whether  this lumbar condition  arose  out  of  and  in  the  course  of her \nemployment at Respondent, and was caused by a specific incident that is identifiable by \ntime  and  place  of  occurrence, the  evidence  shows  that on  August  3,  2023,  at \napproximately  10:30  a.m.,  Claimant  was  performing  her  job  as  a  server  when  she \nundertook one of her duties:  to carry the urn of tea from to the back of the restaurant to \nthe  front and  place  it on the  counter.   Because the  contain  was  full,  it  was heavy.   On \nthis  occasion,  Claimant  experienced a  pop  in  her back.    Thereafter,  she  began  having \nlower  back  pain.    The  next  day,  August  4,  2023,  she  sought  treatment  at  the  Marion \nMinor Medical Clinic and eventually underwent an MRI.  Again, the MRIs document that \ninjury  that  she  suffered  that  day.    I  find  that  those  findings  are  causally  related  to  the \nabove-described specific incident, which is identifiable by time and place of occurrence. \n A  causal  relationship  may  be  established  between  an  employment-related \nincident  and  a  subsequent  physical  injury  based  on  the  evidence  that  the  injury \nmanifested  itself  within  a  reasonable  period  of  time  following  the  incident,  so  that  the \n\nBRAY – H402231 \n \n17 \ninjury  is  logically  attributable  to  the  incident,  where  there  is  no  other  reasonable \nexplanation  for  the  injury. Hall  v.  Pittman  Construction  Co.,  234  Ark.  104,  357  S.W.2d \n263  (1962).    That  is  the  case here.   In  sum,  Claimant—whose  testimony  I  credit—has \nproven  by a preponderance of the  evidence that  she  suffered  a  compensable  injury  to \nher lower back by specific incident. \nB. Medical Treatment \n Introduction.   Claimant  has  alleged  that she  is  entitled  to  reasonable  and \nnecessary medical treatment in connection with her lower back injury. \n Standards.   Arkansas  Code  Annotated  Section  11-9-508(a)  (Repl.  2012)  states \nthat an employer shall provide for an injured employee such medical treatment as may \nbe necessary in connection with the injury received by the employee.  Wal-Mart Stores, \nInc. v. Brown, 82 Ark. App. 600, 120 S.W.3d 153 (2003).  But employers are liable only \nfor  such  treatment  and  services  as  are  deemed  necessary  for  the  treatment  of  the \nclaimant’s injuries.  DeBoard v. Colson Co., 20 Ark. App. 166, 725 S.W.2d 857 (1987).  \nThe claimant must prove by a preponderance of the evidence that medical treatment is \nreasonable  and  necessary  for  the  treatment  of  a  compensable  injury.   Brown, supra; \nGeo  Specialty  Chem.  v.  Clingan,  69  Ark.  App.  369,  13  S.W.3d  218  (2000).    What \nconstitutes  reasonable  and  necessary  medical  treatment  is  a  question  of  fact  for  the \nCommission.  White Consolidated Indus. v. Galloway, 74 Ark. App. 13, 45 S.W.3d 396 \n(2001); Wackenhut Corp. v. Jones, 73 Ark. App. 158, 40 S.W.3d 333 (2001). \n As  the  Arkansas  Court  of  Appeals  has  held,  a  claimant  may  be  entitled  to \nadditional treatment even after the healing period has ended, if said treatment is geared \n\nBRAY – H402231 \n \n18 \ntoward management of  the  injury.  See Patchell  v.  Wal-Mart  Stores,  Inc., 86  Ark.  App. \n230,  184  S.W.3d  31  (2004); Artex  Hydrophonics,  Inc.  v.  Pippin,  8  Ark.  App.  200,  649 \nS.W.2d 845 (1983).  Such services can include those for the purpose of diagnosing the \nnature and extent of the compensable injury; reducing or alleviating symptoms resulting \nfrom  the  compensable  injury;  maintaining  the  level  of  healing  achieved;  or  preventing \nfurther  deterioration  of  the  damage  produced  by  the  compensable  injury.   Jordan  v. \nTyson Foods, Inc., 51 Ark. App. 100, 911 S.W.2d 593 (1995); Artex, supra. \n Discussion.  I find that Claimant has proven by a preponderance of the evidence \nthat she is entitled to reasonable and necessary medical treatment of her compensable \nlower  back injury.  Moreover,  I  have  reviewed  her treatment  records  that  are  in \nevidence, and I find that she has proven by a preponderance of the evidence that all of \nthe treatment of her compensable lower back injury that is in evidence was reasonable \nand necessary. \nC. Temporary Total Disability \n Introduction.    Claimant  has  also  alleged  that she  is  entitled  to  temporary  total \ndisability benefits as a result of her compensable injury. \n Standards.  The compensable injury to Claimant’s lower  back is  unscheduled.  \nSee Ark. Code Ann. § 11-9-521 (Repl. 2012).  An employee who suffers a compensable \nunscheduled  injury  is  entitled  to  temporary  total  disability  compensation  for  that  period \nwithin  the  healing  period  in  which she  has  suffered  a  total  incapacity  to  earn  wages.  \nArk.  State  Hwy.  &  Transp.  Dept.  v.  Breshears,  272  Ark.  244,  613  S.W.2d  392  (1981).  \nThe  healing  period  ends  when  the  underlying  condition  causing  the  disability  has \n\nBRAY – H402231 \n \n19 \nbecome  stable  and  nothing  further  in  the  way  of  treatment  will  improve  that  condition.  \nMad Butcher, Inc. v. Parker, 4 Ark. App. 124, 628 S.W.2d 582 (1982).  Also, a claimant \nmust demonstrate that the disability lasted more than seven days.  Id. § 11-9-501(a)(1). \n Evidence.   Claimant’s testimony was that except for one  or  two days’ absence, \nshe  continued  to  work  for  Respondent  after  her  back  injury  until  the  first  week  of \nJanuary 2024.  Asked what happened in January, she responded: \nI called Ms. Ashley and told her I couldn't work anymore due to my—I had \nhealth  problems,  my  problems  in  my  back,  but  I  told  her  my  health \nproblems.  I had “health problems” is what I said. \n \nDuring  the  approximately  five-month  period  that  she  worked  after  injuring  her  back, \naccording  to  Claimant,  she  complained  about  her  back  every  day.    Soto  helped  her \ncarry the tea urn; she never again carried it by herself.  Despite her physical difficulties, \nshe persisted  in her  job  because  she  had  bills  to  pay.  Asked  if  she  worked anywhere \nelse after she resigned from Respondent, Claimant replied:  “No I wasn’t able to work.  I \ncan’t—I couldn’t stand up.  I couldn’t even—can’t even cook, stand in my kitchen and \ncook because my back, my lower back.”  In  addressing  the  circumstances  that  led  to \nher ultimately quitting her job, Claimant denied suffering another injury. \n The following exchange took place: \nQ. Has any doctor taken you off work in connection with your back? \n \nA. No, I wasn’t able to work so I quit, and I haven’t been able to go \nback since. \n \nQ. When you quit— \n \nA. To work. \n \n\nBRAY – H402231 \n \n20 \nQ. —you  testified  that  in  January  of  2024—were  you  on restrictions \nthen  when  you  quit,  or  did  you  just  quit  because  you  decided  on \nyour own you couldn’t do the job? \n \nA. I  decided  on  my  own  I  couldn’t  do  a  job.    I  had  to  find—I  just \nrecently  found  a  sit-down  job,  a  desk  job,  two  weeks  ago—well, \nthree weeks now.  No until then, I couldn’t find a sit-down  job,  a \ndesk job, because I can’t stand up for a period of time anymore. \n \n In  describing  her  work  and  educational  history,  Claimant  stated  that  she  has  a \nbachelor's  degree  in  social  work  from  the  University  of  Memphis.    She  worked  for \nthirteen years as a licensed alcohol and drug abuse counselor and as a case manager \nfor  two  different  treatment  facilities before  she  began  waitressing.    The  license  has \nlapsed,  and  she  has  learned  that  she  would  have  to  go  back  to  school  for  a  year  in \norder to get the license reinstated.  Food service and counseling are the only two areas \nin which she has worked. \n The following exchange occurred: \nQ. Do  you not believe that  there  was anything else  that  you  could  do \nphysically  that  you  would,  that  your  skills  as  a  licensed—and  I \nrealize  at  that  time  your  license  was  no  longer  active—as  a  social \nworker that may be transferable, that you could have done work in \nsome kind of related field after you left Sizzlin’ Skillet? \n \nA. No, because I have trouble just—I can’t even cook anymore.  I can’t \nstand at my sink long enough to cook because my lower back starts \nhurting me so bad.  All I can do is sit there and go, uh, uh, uh.  It’s \nterrible. \n \n Discussing  the  job  she  recently  obtained,  Claimant  stated  that  it  involves  taking \ncamping  reservations.    Asked  if  she  could  have  performed  that  job  at  the  time  she \nresigned from Respondent, Claimant answered:  “Yes, if I knew about the job I could \nhave . . . I looked for jobs.”  But she added that the job is part-time (30 hours a week) \n\nBRAY – H402231 \n \n21 \nand  pays  only  $12.00  per  hour,  while  her  server  position  paid  $11.00  per  hour  plus \ntips—and that she made $330.00 to $400.00 per week in tips while waitressing (during \na 20 to 25-hour workweek). \n On   cross-examination,   Claimant   admitted   that   after   she   resigned   from \nRespondent,  she  contacted  the  establishment  multiple  times  by  phone  and  even  in \nperson  in  an  effort  to  be  re-hired.  In explaining why she did this, Claimant stated:  “I \nneeded the financial support to pay my bills.” \n Discussion.   In Farmers Coop. v. Biles, 77 Ark. App. 1, 69 S.W.3d 899 (2002), \nthe Arkansas Court of Appeals wrote:  “If,  during  the  period  while  the  body  is  healing, \nthe employee is unable to perform remunerative labor with reasonable consistency and \nwithout  pain  and  discomfort,  his  temporary  disability  is  deemed  total.”   Here,  the \nevidence shows that Claimant continued to perform her job as a server for five months \nafter  she  suffered  her  compensable  lower  back  injury.    The  only  change  in  her  duties \nwas to receive help in lifting/carrying the aforementioned tea urn.  The two best judges \nof   her   ability   to   work   were   (1)  her  doctors   and   (2)  herself.      But  as   Claimant \nacknowledged in her testimony:  (1) no doctor has taken her off work; (2) she attempted \nto return to work at Respondents shortly after tendering her resignation; and (3) she has \nthe educational background and physical condition that would still enable her to work at \na  desk  job.    Consequently,  I am unable  to find  that Claimant has suffered  from  a  total \nincapacity to earn wages.  She has not proven by a preponderance of the evidence that \nshe is entitled to temporary total disability benefits for any period. \n\nBRAY – H402231 \n \n22 \nE. Average Weekly Wage \n Because  of  the  above  finding,  the  issue  of  the  valuation  of Claimant’s average \nweekly wage is moot and will not be addressed. \nCONCLUSION AND AWARD \n Respondent is hereby  directed  to  pay/furnish  benefits  in  accordance  with  the \nfindings of fact and conclusions of law set forth above.  All accrued sums shall be paid \nin a lump sum without discount, and this award shall earn interest at the legal rate until \npaid,  pursuant  to  Ark.  Code  Ann.  §  11-9-809  (Repl.  2012).   See Couch  v.  First  State \nBank of Newport, 49 Ark. App. 102, 898 S.W.2d 57 (1995). \n Respondent owes the $361.75 transcript bill of my reporter, Dawn Crawford, and \nis  hereby  ordered  to  pay  it  as  outlined  in  the  letter  dated  May  21,  2025,  by  June  20, \n2025. \n IT IS SO ORDERED. \n       ________________________________ \n       Hon. O. Milton Fine II \n       Chief Administrative Law Judge","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H402231 WHITNEY BRAY, EMPLOYEE CLAIMANT SIZZLIN’ SKILLET LLC, UNINSURED EMPLOYER RESPONDENT OPINION FILED MAY 23, 2025 Hearing before Administrative Law Judge O. Milton Fine II on April 25, 2025, in Forrest City, St. Francis County, Arkansas. Claimant pro se....","fetched_at":"2026-05-19T22:41:15.591Z","links":{"html":"/opinions/alj-H402231-2025-05-23","pdf":"https://www.labor.arkansas.gov/wp-content/uploads/Bray_Whitney_H402231_20250523.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}