{"id":"alj-H402896-2025-02-05","awcc_number":"H402896","decision_date":"2025-02-05","opinion_type":"alj","claimant_name":"Connie Roberts","employer_name":"University Of Arkansas Fayetteville","title":"ROBERTS VS. UNIVERSITY OF ARKANSAS FAYETTEVILLE AWCC# H402896 February 05, 2025","outcome":"denied","outcome_keywords":["dismissed:1","denied:5"],"injury_keywords":["shoulder","repetitive","back","neck","rotator cuff"],"pdf_url":"https://www.labor.arkansas.gov/wp-content/uploads/ROBERTS_CONNIE_H402896_20250205.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"ROBERTS_CONNIE_H402896_20250205.pdf","text_length":20599,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO.  H402896 \n \nCONNIE ROBERTS, Employee                                                                      CLAIMANT \n \nUNIVERSITY OF ARKANSAS FAYETTEVILLE, Employer                     RESPONDENT \n \nPUBLIC EMPLOYEE CLAIMS DIVISION, Carrier                                    RESPONDENT                                                              \n \n \n OPINION FILED FEBRUARY 5, 2025 \n \nHearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Springdale, \nWashington County, Arkansas. \n \nClaimant represented by MICHAEL L. ELLIG, Attorney, Fort Smith, Arkansas. \n \nRespondents   represented   by CHARLES   H.   MCLEMORE,   Attorney, Little   Rock, \nArkansas. \n \n \n STATEMENT OF THE CASE \n  \n On January  15,  2025,  the  above  captioned  claim  came  on  for  hearing  at \nSpringdale, Arkansas.  A pre-hearing conference was conducted on November 6, 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 \nSeptember 1, 2023. \n 3.   Respondents have controverted this claim in its entirety. \n 4.   The claimant was earning an average weekly wage of $597.78 which would \n\nRoberts – H402896 \n2 \n \nentitle her to compensation at the weekly rates of $399.00 for total disability benefits and \n$299.00 for permanent partial disability benefits. \n At the pre-hearing conference the parties agreed to litigate the following issues: \n1.   Compensability of injury to claimant’s right arm and shoulder as a result of a  \ngradual onset injury or a specific incident on September 1, 2023. \n2.   Related medical. \n3.    Temporary total disability benefits from September 13, 2024 through a date  \nyet to be determined. \n4.    Attorney’s fee. \nThe claimant contends that she had no problem with her right shoulder and arm \nuntil she started doing heavy overhead lifting and pulling and her symptoms with her right \nshoulder got significantly worse after a particular incident on or about September 1, 2023.  \nTherefore,  the  claimant  contends  that  her  difficulties  constitute  a  compensable  injury \nunder  one  or  both  definitions  under  A.C.A.  §11-9-102(4).    She  contends  that  she  has \nreasonably required medical services for this injury and has been rendered temporarily \ntotally disabled by this injury from September 2, 2023 through a date yet to be determined.  \nShe seeks the statutory attorney’s fee on all appropriate benefits awarded. \nThe respondent contends that the claimant reported on April 17, 2024 having an \ninjury to her right shoulder occurring from gradual onset over a period of eight months, \nwhich  respondent  has  controverted.      Respondent  contends  that  the  claimant  cannot \nestablish that she sustained a specific incident injury to her right shoulder on September \n1,  2023,  or  that  she  sustained  an  injury  to  her  right  shoulder  arising  out  of  and  in  the \ncourse of her employment from a gradual onset injury caused by both rapid and repetitive \n\nRoberts – H402896 \n3 \n \nmotion.  Respondent contends that the claimant has a pre-existing condition in her right \nshoulder, that the claimant cannot establish that her alleged injury is the major cause of \nany disability or need for treatment she has, and that if her right shoulder condition were \nrelated to a work injury, the claimant cannot establish she has timely filed a claim for her \nright  shoulder  condition.    Respondent  contends  that  if  the  claimant’s  claim  was \ncompensable,  the  respondent  cannot  be  responsible  for  disability,  medical,  or  other \nbenefits prior to receipt of the employee’s report of 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 witness and to observe her demeanor, the following findings of fact \nand conclusions of law are made in accordance with A.C.A. §11-9-704: \n \n  FINDINGS OF FACT & CONCLUSIONS OF LAW \n \n 1.   The stipulations agreed to by the parties at a pre-hearing conference conducted \non November  6,  2024 and  contained  in  a  pre-hearing  order  filed  that  same  date  are \nhereby accepted as fact. \n 2.    Claimant has failed to meet her burden of proving by a preponderance of the \nevidence that she suffered a compensable gradual onset injury to her right shoulder and \narm while employed by respondent. \n 3.   Claimant has failed to meet her burden of proving by a preponderance of the \nevidence that she suffered a compensable injury to her right shoulder and arm as a result \nof a specific injury while employed by respondent. \n \n\nRoberts – H402896 \n \n4 \n \n FACTUAL BACKGROUND \n The claimant is a 60-year-old woman with a GED.  Her prior jobs have included \nworking for a printing company in St. Louis for four and a half years; performing building \nmaintenance work for seven years; and in-home care of an elderly woman for six to eight \nmonths.  Immediately  prior  to  going  to  work  for  respondent  on  August  1,  2021,  the \nclaimant had been employed as a groundskeeper for various golf courses for 18 years. \n On August 1, 2021, claimant began working for respondent as a groundskeeper.  \nHer job duties were primarily mowing, but she also raked leaves, mulched leaves, and \noperated a weed eater.  On August 18, 2022, claimant was placed in charge of the tool \ncrib at respondent.  Claimant was responsible for checking out equipment to employees \nby  noting a  part  number  and  putting  information  into  a  computer  during  check out  and \ncheck in.   Claimant testified that she did not use the tools at the tool crib, but instead \nsimply  checked  them  out  to  workers  who  needed  various  tools.    She  also  spent  time \ncleaning tools, fixing tools, sweeping floors, and mopping floors.  She testified that the \ntool crib not only included tools, but many other things such as raincoats, boots, tables, \nand chairs.   \n Claimant  testified  that  she  had  no  physical  problems  performing  her  grounds-\nkeeping duties with respondent.  However, several months after she began working in the \ntool crib she started noticing problems with her right shoulder.   \n For several years claimant had sought medical treatment from Dr. Alec Spencer, \na chiropractic physician.  Medical reports from Dr. Spencer indicate that claimant made \nvarious complaints of pain in her shoulders.  Claimant attributes those complaints to back \nand neck pain, not shoulder joint pain.  \n\nRoberts – H402896 \n \n5 \n \n In  a  report  dated  June  29,  2023,  Dr.  Spencer  noted  that  claimant  was  having \ndifficulty using her right arm and could not lift anything over her head anymore.  He also \nnoted that claimant was having a hard time brushing her hair.  He requested an MRI scan \nfor  further  evaluation.    Dr.  Spencer’s  medical  reports  continue  to  reference  complaints \ninvolving claimant’s right shoulder.  Claimant eventually underwent an MRI scan on her \nright shoulder on March 12, 2024.  The findings on the MRI scan included: \n1. High-grade partial-thickness articular surface tear \ninvolving the distal fibers of the subscapularis medial \nsubluxation longhead biceps tendon is noted.  No \nmuscular atrophy is seen. \n \n2.  Low-grade intrasubstance tear involving the conjoined \ntendon of the supraspinatus and infraspinatus.   \n \n3.   Tendinopathy of the supraspinatus and infraspinatus. \n  \n4.    Mild to moderate degenerative changes of the acromio- \n            clavicular joint and Type II/III acromion. \n \n \n Following this MRI scan Dr. Spencer referred claimant to Dr. Samuel McClatchy \nat Ozark Orthopaedics.  Claimant was initially seen by Dr. McClatchy on April 16, 2024, \nand he recommended a surgical repair of the claimant’s right shoulder. \n Claimant has filed this claim contending that she suffered a compensable injury to \nher right shoulder and arm as a result of a gradual onset injury or a specific incident.  She \nseeks  payment  of  related  medical  treatment,  temporary  total  disability  benefits,  and  a \ncontroverted attorney fee. \nADJUDICATION \n Initially, claimant  contends  that  she  suffered  a  gradual  onset  injury  to  her  right \nshoulder and arm resulting from her job activities while working in respondent’s tool crib.  \n\nRoberts – H402896 \n \n6 \n \nPursuant to A.C.A. §11-9-102(4)(A)(ii), injuries that occur over a period of time and are \nnot  the  result  of  a  specific  incident  occurring  at  an  identifiable  time  and  place  are  not \ncompensable unless they are caused by rapid repetitive motion.  In order to be awarded \nbenefits for a gradual onset injury the claimant must prove several things:  (1)  the injury \narose out of and in the course of employment; (2)  the injury caused internal or external \nphysical  harm  to  the  body,  which  required  medical  services  or  resulted  in  death  or \ndisability; (3)  the injury was caused by rapid repetitive motion; (4) the injury was the major \ncause  of  the  disability  or need  for  treatment;  and  (5)  the  injury  was  established  by \nobjective findings.  A.C.A. §11-9-102(4)(D) and Malone v. Texarkana Public Schools, 333  \nArk. 343, 969 S.W. 2d 644 (1998).   \n With  respect  to “rapid  repetitive  motion”,  the  Courts  have established  a  two-\npronged test:  (1)  the task must be repetitive, and (2) the repetitive motion must be rapid.  \nAs a threshold issue, the tasks must be repetitive, or the rapidity element is not reached.  \nEven repetitive tasks and rapid work, standing alone, do not satisfy the definition.  The \nrepetitive tasks must be completed rapidly.  Malone, supra.   \n After reviewing the evidence in this case impartially, without giving the benefit of \nthe doubt to either party, I find that claimant has failed to meet her burden of proving by \na  preponderance  of  the  evidence  that  she  suffered  a  gradual  onset  injury  to  her  right \nshoulder.  Specifically, claimant has failed to prove that she suffered an injury that was \ncaused by rapid repetitive motion.   \n As previously noted, claimant was responsible for operating the respondent’s tool \ncrib.  The tool crib was located in a building which contained various tools as well as other \nitems such as raincoats, boots, tables, and chairs.  When an employee appeared at the \n\nRoberts – H402896 \n \n7 \n \ntool crib claimant would check out a particular item to that employee and note its status \nin  a  computer.    When  the  item  was  returned  claimant  would  return  the  item  to  the \ninventory and note that in the computer.  \n Claimant specifically testified as to two items in particular which she dealt with at \nthe tool crib.  These two items were barricades and an overhead door.  The barricades \nconsisted  of  two  A-frames  with  a  long  beam  laid  across  the  top  of  each  A-frame.  \nEssentially,  these barricades  look like  a  sawhorse  and  photos  of  the  barricades  were \nsubmitted into evidence by the respondent.  It was claimant’s testimony that the A-frame \nportion of the barricade was stored on a beam that stuck out about 10 to 12 feet long. \nClaimant testified that the number of barricades checked out daily would vary with some \ndays it being five and other days being two. \n Claimant  also  testified  that  the  tool crib  had  an  overhead  bay  door  for  taking \nequipment in and out of the building.  In order to open the door she had to pull on a heavy \ntow bar chain and it took a great deal of force for her to open the door.  Claimant testified \nthat on some days she would open the door up to ten times a day, but other days she \nmight only open the door twice a day. \n With respect to her job duties, the following testimony occurred: \n  Q As far as your other job duties at the tool crib, it \n  varied from day-to-day; correct? \n \n  A Correct. \n \n  Q So there was no certain movements of your shoulder \n  that you made very single day.  It would vary for every shift; \n  correct? \n \n  A Yes, sir. \n \n\nRoberts – H402896 \n \n8 \n \n \nI do not find that claimant has proven that her job duties required her to engage in rapid \nrepetitive  motion.    As  previously  noted,  the Courts  have  stated  that  the  tasks  must  be \nrepetitive and that the repetitive motion must be rapid.  In essence, repetitive tasks must \nbe completed rapidly.  Malone, supra.  Here, I find insufficient evidence that claimant’s \njob  duties  involved  repetitive tasks  that  were  completed  rapidly.    Absent  sufficient \nevidence  that  she  was  performing  repetitive  tasks  that  were  completed  rapidly,  she \ncannot establish a compensable gradual onset injury to her right shoulder.  Accordingly, \nI find that claimant has failed to meet her burden of proving by a preponderance of the \nevidence that she suffered a gradual onset injury to her right shoulder while employed by \nthe respondent. \n I likewise find that claimant has failed to prove by a preponderance of the evidence \nthat she suffered a compensable injury as the result of a specific incident identifiable by \ntime and place of occurrence.  In her contentions, claimant alleged that she suffered a \ncompensable  injury as  a  result  of  a  specific  incident  which  occurred  on  or  about \nSeptember 1, 2023.  Claimant testified that on this particular day she was opening the \noverhead door and when she pulled on the chain “it hurt so bad in my shoulder.”  Claimant \ntestified that she did not know if her shoulder popped, but she could not get the door open \nand another employee had to open it.   \n Although claimant originally alleged that this occurred on or about September 1, \n2023,  at  the  hearing  she  acknowledged  that  she  did  not  know  the  exact  date  of  the \nincident but believed it occurred sometime between September and November 2023.  Dr. \nSpencer’s medical report contains the following history: \n\nRoberts – H402896 \n \n9 \n \n  Patient states she is feeling worse since her last visit. \n  Can not lift anything over head anymore and has a  \n  hard time just brushing her hair.  Said she can hardly \n  work anymore because of it. \n \n \n At the hearing, claimant testified that the additional problems with her shoulder and \ndifficulty brushing  her hair  would  have occurred  within  two  weeks of  when the  incident \nwith the door occurred.  However, this history in Dr. Spencer’s medical records was not \nbetween September and November 2023, but instead was noted in Dr. Spencer’s medical \nreport of June 29, 2023, several months earlier.  In addition, I note that Dr. Spencer at \nthat time went on to state: \n  Shoulder has progressively gotten worse and can \n  not perform normal ADLs anymore.  Will be requesting \n  an MRI again, X-rays taken today of the shoulder and \n  arm were WNL.  MRI is needed for further evaluation. \n \n \n Notably, there is no mention in Dr. Spencer’s medical record of that date of any \nincident of the claimant lifting a door.  Furthermore, Dr. Spencer stated that he would be \nrequesting an MRI “again”.  There is no  indication as to when Dr. Spencer had previously \nrecommended an MRI scan.   \n Not only is there no mention in Dr. Spencer’s report of June 29, 2023 of an incident \nwith a door, there is no mention in any of Dr. Spencer’s medical reports of the claimant \nhaving reported an injury to her right shoulder while lifting an overhead door. \n Also  significant  is  Form  AR-N  signed  by  claimant  on  April  23,  2024.    That  form \ncontains the following description of how claimant was injured: \n  The employee was pulling chains and lifting tools  \n  which she was able to do perfectly fine when she \n  started working in this position.  She states that \n\nRoberts – H402896 \n \n10 \n \n  over the last 8 months she has started to experience \n  symptoms in the right shoulder and bicep and has \n  since been diagnosed with tears in the rotator cuff \n  and bicep.  This has affected her ability to perform \n  necessary tasks at work. \n \n \n While this form was typed by another individual, it was signed by claimant on April \n23, 2024.   \n In  addition,  prior  to  hiring  Attorney  Ellig  to  represent  her,  claimant  originally \nproceeded pro  se.    Claimant  completed  a  pre-hearing  questionnaire  in  her  own \nhandwriting  which  she  signed  on  August  26,  2024.    In  describing  her  injury,  claimant \nstated: \n  I started at tool crib on October 18\nth\n, 2022.  I had no \n  problems with doing any part of my job duties.  After \n  about 6 to 8 months of repetitive duties (lifting street \n  barricades above my head to hang on the upper beams \n  & dealing with opening and closing bay door that has \n  problems with pulling a very heavy chain to open & \n  close.  I started noticing a lot of pain in my right shoulder \n  & right arm. \n \n \n Thus,  claimant’s  AR-N  which  she  signed  in  April  2024  and  in  her  pre-hearing \nquestionnaire in her own handwriting which she signed on August 26, 2024, claimant did \nnot mention any specific incident but instead attributed her problems to the gradual onset \ninjury involving her job duties with respondent in the tool crib. \n Finally, I note that claimant was referred by Dr. Spencer to Dr. Samuel McClatchy, \nan orthopedic surgeon, for an evaluation and he has recommended a surgical procedure.  \nIn his report of April 16, 2024, he stated: \n  She has concerns in regards to her time off of work and \n  has also filed for Workers’ Compensation in regards to  \n\nRoberts – H402896 \n \n11 \n \n  this injury.  Given that there is no muscle atrophy noted \n  of the subscapularis I discussed with her that this is \n  likely an acute injury rather than something that has \n  been present for years.  She does not report a specific \n  injury, but this may be more related to repetitive lifting \n  with her shoulder.  (Emphasis added.) \n \n \n Thus, Dr. McClatchy has opined that claimant’s injury is acute in the sense that it \nhas not been present for years, but since no specific injury was reported, it was his opinion \nthat it was related to repetitive lifting.  As previously noted, claimant has failed to prove \nthat her job activities required rapid repetitive motion to establish a compensable gradual \nonset injury. \n For the reasons discussed herein, I also find that claimant has failed to prove by a \npreponderance of the evidence that she suffered a compensable injury as a result of a \nspecific  incident  identifiable  by  time  and  place  of  occurrence.    Claimant  indicated  that \nwhile  she  did not  know  the  date  of  the  specific  incident, she  believed  it occurred \nsometimes between September and November 2023.  However, Dr. Spencer’s report of \nJune 29, 2023 indicates that claimant was having difficulties with her right arm and that \nshe was having a hard time brushing her hair and could not performing normal activities \nof  daily  living.    Claimant  testified  that  this  was  within  two  weeks  of  the  door  incident.  \nHowever, Dr. Spencer’s report is dated June 29, 2023.  Furthermore, there is no mention \nof  any  incident  lifting  a  door  in  any  of  the  medical  reports  submitted  into  evidence.  \nFurthermore, claimant signed Form AR-N on April 23, 2024, and handwrote answers to \na  pre-hearing  questionnaire  on  August  26,  2024,  making  no  mention  of  any  specific \nincident.    Finally,  McClatchy  has  indicated  that  claimant’s  findings  are  more  related  to \nrepetitive lifting.  Accordingly, I find that claimant has failed to prove a compensable injury \n\nRoberts – H402896 \n \n12 \n \nby a specific incident identifiable by time and place of occurrence. \n \nORDER \n Claimant has failed to prove by a preponderance of the evidence that she suffered \na compensable injury in the form of a gradual onset injury or a specific injury identifiable \nby  time  and  place  of  occurrence.    Therefore,  her  claim  for  compensation  benefits  is \nhereby denied and dismissed. \n Respondents are liable for payment of the court reporter’s charges for preparation \nof the hearing transcript in the amount of $873.45. \nIT IS SO ORDERED. \n \n       ________________________________ \n        GREGORY K. STEWART \n        ADMINISTRATIVE LAW JUDGE","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H402896 CONNIE ROBERTS, Employee CLAIMANT UNIVERSITY OF ARKANSAS FAYETTEVILLE, Employer RESPONDENT PUBLIC EMPLOYEE CLAIMS DIVISION, Carrier RESPONDENT OPINION FILED FEBRUARY 5, 2025 Hearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Springdale, W...","fetched_at":"2026-05-19T22:43:18.771Z","links":{"html":"/opinions/alj-H402896-2025-02-05","pdf":"https://www.labor.arkansas.gov/wp-content/uploads/ROBERTS_CONNIE_H402896_20250205.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}