{"id":"alj-H404171-2025-06-23","awcc_number":"H404171","decision_date":"2025-06-23","opinion_type":"alj","claimant_name":"Hunter Shelton","employer_name":"Diversified, LLC","title":"SHELTON VS. DIVERSIFIED, LLC AWCC# H404171 June 23, 2025","outcome":"granted","outcome_keywords":["granted:5"],"injury_keywords":["ankle"],"pdf_url":"https://www.labor.arkansas.gov/wp-content/uploads/SHELTON_HUNTER_H404171_20250623.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"SHELTON_HUNTER_H404171_20250623.pdf","text_length":17184,"full_text":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. H404171  \n \nHUNTER SHELTON, Employee CLAIMANT \n \nDIVERSIFIED, LLC, Employer RESPONDENT \n \nTRAVELERS PROPERTY CASUALTY CO. OF AMERICA, Carrier RESPONDENT \n \n \n \n OPINION FILED JUNE 23, 2025 \n \nHearing   before   ADMINISTRATIVE   LAW   JUDGE GREGORY   K.   STEWART in \nSpringdale, Washington County, Arkansas. \n \nClaimant represented by LAURI THOMAS, Attorney at Law, Fayetteville, Arkansas. \n \nRespondents  represented  by JASON  M.  RYBURN,  Attorney  at  Law, Little  Rock, \nArkansas. \n \n \n STATEMENT OF THE CASE \n \n On June  5,  2025,  the  above  captioned  claim  came  on  for  a  hearing  at \nSpringdale, Arkansas.   A pre-hearing conference was conducted on February 20, 2025, \nand  a pre-hearing  order  was  filed  on February  24,  2025. A  copy  of  the  Pre-hearing \nOrder  has  been  marked  Commission's  Exhibit  No.  1  and  made  a  part  of  the  record \nwithout objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1. The  Arkansas  Workers'  Compensation  Commission  has  jurisdiction  of  this \nclaim. \n 2. The employee/employer/carrier relationship existed June 21, 2024. \n\nShelton – H404171 \n \n-2- \n 3. Claimant sustained a compensable injury on June 21, 2024, and the employer \nhas now controverted the claim in its entirety. \n Prior to the hearing, the parties agreed that respondent had not controverted the \nclaim, but instead, had accepted a compensable injury to the left ankle and foot on June \n21,  2024.  The parties also  agreed  to  stipulate  that  respondent  is  continuing  to  provide \nclaimant  with  medical  treatment  and  that  claimant  would  be  entitled  to  benefits  at  the \nmaximum compensation rate. \n At the pre-hearing conference the parties agreed to litigate the following issues: \n 1. Compensation rate. \n 2.  Whether  claimant  is  entitled  to  additional  temporary  total  disability  benefits, \nmedical benefits. \n 3. Attorney fee. \n Based upon the parties stipulations, the only issues for consideration at the time \nof  the  hearing are claimant’s  entitlement  to  temporary  total  disability  benefits  from \nNovember 12, 2024, through January 10, 2025, and a controverted attorney fee. \n The  claimant  contends “he  sustained  a  compensable  injury  while  working  for \nrespondent  on  or  about  June  21,  2024.    At  that  time,  claimant  was  in  the  course  and \nscope of his employment with respondent when the claimant jumped out of the way of a \nroll of wire and injured his left ankle and left foot upon landing.  The claimant underwent \nan  MRI  that  found  a  large  cyst  in  his  Sinus  Tarsi.    As  a  result  of  the  findings,  the \nclaimant has attended numerous sessions of physical therapy at Advanced Orthopedic \nSpecialists.    He  also  received  one  injection  of  Depo-Medrol  and  Lidocaine  to  his  left \nsubtalar  joint  with  Dr.  Hagan  at  Advanced  Orthopedic  Specialist.    Since  claimant  had \n\nShelton – H404171 \n \n-3- \nfailed  conservative  treatment  for  his  left  ankle,  Dr.  Yakin  recommended  a  left  subtalar \narthroscopy  with  debridement  and  excision  of  a  cyst,  the  procedure  took  place  on \nDecember 12, 2024.  On December 16, 2024 Dr. Yakin placed the claimant as “unable \nto return to work” with no specified date to return to work and ordered 6 additional \nweeks of physical therapy.  In a letter dated December 5, 2024 the claimant received an \nofficial  notice  that  confirmed  his  termination.    The  letter  stated  the  termination  was  a \nresult of policy violations and lists his final date of employment as November 12, 2024.  \nThe claimant’s termination came shortly after he discussed retaining representation for \nhis injury and rejecting a phone call from his employer on November 12, 2024.  On that \nday, the claimant was being treated for kidney stones and had requested paid time off \nas  advised  by his  employer.    The  claimant advised  his  employer  that  he  would  not  be \njoining  the  call.    He  also  informed  his  employer  about  his  recent  use  of  prescribed \nnarcotics and expressed his hesitation about joining the call while under the influence of \na controlled substance.  The employer terminated the claimant for retaliatory purposes \nand to avoid paying the temporary total disability for his upcoming surgery.” \n The respondents contend “this is an accepted claim, and all appropriate benefits \nhave been paid.” \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 \nhear  the  testimony  of  the  witnesses and  to  observe their demeanor,  the  following \nfindings of fact and conclusions of law are made in accordance with A.C.A. §11-9-704: \n \n \n\nShelton – H404171 \n \n-4- \n FINDINGS OF FACT & CONCLUSIONS OF LAW \n 1. The  parties  stipulations  at  the  prehearing  conference  that  the  Arkansas \nWorkers’  Compensation  Commission  has  jurisdiction  of  this  claim  and  that  the \nemployee/employer/carrier relationship existed on June 21, 2024, are hereby accepted \nas fact. \n 2. The  parties  stipulation  that  claimant  suffered  a  compensable  injury  to  his  left \nankle and foot on June 21, 2024, is also hereby accepted as fact.  \n 3. The parties stipulations that respondent is continuing to provide claimant with \nmedical  treatment  at  the  time  of  the  hearing  and  that  claimant  would  be  entitled  to \ncompensation at the maximum compensation rates are also hereby accepted as fact. \n 4.  Claimant  has  met  his  burden  of  proving  by  a  preponderance  of  the  evidence \nthat  he  is  entitled  to  temporary  total  disability  benefits  beginning  December 12,  2024 \n(the date of his surgery) and continuing through January 10, 2025 (the date he returned \nto work for another employer). Respondent is entitled to a credit for any temporary total \ndisability benefits previously paid for this period of time.  \n 5. Respondent has controverted claimant’s entitlement to all unpaid temporary \ntotal disability benefits. \n \nFACTUAL BACKGROUND \n Claimant  is  a  30-year-old  man  who  worked  for  respondent  for  almost  a  year  as \nan  audio/video  instillation  technician.  His  job  duties  included  lifting  heavy  equipment, \nclimbing ladders and using lifts to get into ceiling spaces, and running wire hundreds of \nyards. Claimant suffered an admittedly compensable injury to his left ankle and foot on \n\nShelton – H404171 \n \n-5- \nJune  21,  2024.  On  that  date,  he  and  other  employees  were  running  cable  down  a \nhallway   at   Tennessee   Technical   Institute   when   someone yelled to  “Watch  out”. \nClaimant jumped out of the way and in doing so injured his left ankle and foot.  \n Claimant reported his injury and initially sought medical treatment from an urgent \ncare  facility  in  Tennessee  where  he  was  instructed  to  follow-up  with  his  primary  care \nphysician, Dr. Abernathy.  \n Claimant  testified  that  Dr.  Abernathy  believed  that  he  had  a  torn  ligament  and \nrecommended that he see a specialist. As a result, claimant came under the care of Dr. \nYakin,  orthopedic  surgeon,  who initially diagnosed claimant’s condition as a sprained \nankle  and  recommended  the  use  of  a  walker  boot  and  physical  therapy.  When \nclaimant’s condition did not improve, Dr. Yakin ordered an MRI scan which revealed a \ncyst  in  the  ankle  which  he  treated  with  a  steroid  injection.  In  a  report dated  November \n25, 2024, Dr. Yakin noted that the steroid injection had worsened claimant’s symptoms \nand  he  recommended  surgery.  Dr.  Yakin  performed  a  left  subtalar  arthroscopy with \ndebridement  and  cyst  excision  on  December  12,  2024.  Following  the  surgery,  he  also \nordered physical therapy for the claimant.  \n Claimant  has  filed  this  claim  contending  that  he  is  entitled  to  temporary  total \ndisability benefits from November 12, 2024, through January 10, 2025. \n \nADJUDICATION \n Claimant contends that he is entitled to temporary total disability benefits for his \ncompensable injury from November 12, 2024, through January 10, 2025. Claimant’s \nankle  injury  is  a  scheduled  injury.  An  employee  who  suffers  a  scheduled  injury  is \n\nShelton – H404171 \n \n-6- \nentitled  to  temporary  total  disability  benefits  during  their  healing  period  or  until  they \nreturn  to  work.  ACA §11-9-521(a); Wheeler  Construction  Company  v.  Armstrong,  73 \nArk. App. 146, 41 SW 3d 822 (2001). However, the claimant’s “failure to return to work \nmust be causally related to the injury.” Foster v. Tyson Poultry, 213 Ark. App. 172, 426 \nSW 3d 563 citing Fendley v. Pea Ridge School District, 97 Ark. App. 214, 216-17, 245 \nSW 3d 676, 677-78 (2006). \n After reviewing the evidence in this case impartially, without giving the benefit of \nthe  doubt  to  either  party,  I  find  that  claimant  has  proven  by  a  preponderance  of  the \nevidence that he is entitled to temporary total disability benefits beginning on December \n12, 2024, the date of his surgery, and continuing through January 10, 2025, the date he \nreturned to work for another employer.  \n Claimant is requesting temporary total disability benefits beginning on November \n12, 2024, the date his employment was terminated. As the court in Foster indicated, the \nclaimant’s failure to return to work must be causally related to the injury. I do not find \nthat claimant’s failure to work beginning on November 12, 2024, is causally related to \nhis injury. Instead, his failure to return to work on November 12, 2024, is attributable to \na  non-work-related  condition; kidney  stones  and  his  decision  not  to  attend  a  Zoom \nmeeting with his employer. While claimant’s decision may have been justified given his \nkidney stones, it is not related to his work injury.  \n After  his  compensable  injury,  claimant  continued  to  work  for  respondent  as  an \naudio/video  installation technician, performing  his  regular  job  duties.  He  continued  to \nperform those job duties through his termination on November 12, 2024.  \n\nShelton – H404171 \n \n-7- \n As  previously  noted,  claimant  came  under  the  care  of  Dr.  Yakin,  orthopedic \nsurgeon,  with  his  first  visit  occurring  on  August  9,  2024,  at  which  time  Dr.  Yakin \nprescribed physical therapy and the use of a walker boot. Dr. Yakin made no mention of \nany  work  restrictions  at  that  time  and  claimant  continued  to  work  for  respondent. \nClaimant  apparently  returned  to  Dr.  Yakin  on  November  6,  2024,  and  later  that  same \nday,  he  went  to  Northwest  Medical  Center  emergency  room  for  complaints  of  kidney \nstones.  Neither  of  these  medical  records  are  in  evidence.  There  is  a  note  from  the \nemergency room taking claimant off work for one day for the kidney stones.  \n Claimant  testified  that  after  November  6  he  decided  to  take  PTO  leave  and \ncontacted his supervisor and attempted to complete an online request but there was an \nerror on the website and his PTO did not go through. There was some discussion at the \nhearing regarding this request and whether claimant had followed proper procedures for \napproval.  However,  for  reasons  to  be  discussed,  the  claimant’s  failure  to  continue \nworking  for  respondent  after  November  12,  2024, are not  related  to  his  compensable \ninjury.  \n Claimant also testified that the medical report given to him at Dr. Yakin’s office \nafter  his  visit  on  November  6  did  not  accurately  reflect  limitations  given  to  him  by  Dr. \nYakin.  Claimant  contacted  Dr.  Yakin’s  office  and  on  November  8,  2024,  Dr.  Yakin \nindicated:  \nThe  injured  worker  may  return  to  work  so  long  as  the \nfollowing  functional  limitations  or  restrictions  as  listed  below \nare adhered to. \n \n- No climbing \n- No walking more than 100 yards \n \n\nShelton – H404171 \n \n-8- \n Based  on  his  PTO  request,  claimant  did  not  return  to  work  or  even  attempt  to \nreturn to work within the limitations given to him by Dr. Yakin. November 8 was a Friday \nand claimant was scheduled off work on Saturday, Sunday, and Monday (Veteran’s \nDay).  On  Tuesday,  claimant  was  asked  to  attend  a  Zoom  meeting.  Claimant  testified \nthat  he  had  suffered  from  another  kidney  stone  and  was  taking  hydrocodone  so  he \nrequested  that the meeting be  rescheduled, but  respondent  refused.  Claimant  testified \nthat  he  did  not  feel  comfortable  participating  in  a  meeting  while  taking  hydrocodone. \nBased on claimant’s refusal to participate in the Zoom meeting, his employment was \nterminated by respondent effective on November 12, 2024. \n Although  claimant  had  been  given  restrictions,  Dr.  Yakin  had  indicated  that \nclaimant  could  return  to  work  within  those  restrictions.  Attending  the  Zoom  meeting \nwould have fallen within those restrictions. Claimant’s decision to not attend the meeting \nand  his  subsequent  termination  was  related  his  kidney  stone  and  medication,  not  his \nankle injury.  \nQ And  when  the  time  came  to  do  that  light-duty  work, \nyou did not participate? You did not show up? \n \nA Unfortunately, I had a kidney stone, which you can’t \never  know  when  a  medical  emergency  is  going  to  happen, \nbut that is why PTO is there. \n \nQ Okay.  \n \nA So  I  followed  the  handbook  by  letting  my  supervisor \nknow  I  couldn’t  show  up  to  the  meeting  and  explained  it \nwasn’t for recreational. It was for a medical emergency. It \nwasn’t  just  because  I  didn’t  want  to  work.  It’s  because  I \ncouldn’t function at the meeting. I don’t think anyone would \nrequire a worker to go to any meeting on any medication. \n \n\nShelton – H404171 \n \n-9- \n Regardless of whether one thinks claimant’s refusal to attend the Zoom meeting \nwas justified, given his kidney stones and his taking hydrocodone, the law requires that \nthe  failure  to  return  to  work  be  related  to  the  compensable  injury.  Under  these \ncircumstances, I find that claimant’s failure to return to work and his termination by \nrespondent was not related to his compensable injury, but rather to a non-work-related \ncondition.  Therefore,  I  do  not  find  that  claimant  is  entitled  to  temporary  total  disability \nbeginning on November 12, 2024.  \n I do find that claimant is entitled to temporary total disability benefits beginning on \nDecember 12, 2024, the date of his surgery, and continuing through January 10, 2025, \nthe  date  he  returned  to  work  for  another  employer.  Dr.  Yakin  performed  surgery  on \nclaimant’s  left  ankle  on  December  12,  2024.  On  December  16,  2024,  Dr.  Yakin \nindicated in a report that claimant was unable to return to work until further “specified”. \nOn December 23, 2024, Dr. Yakin indicated that claimant could return to work at a sit-\ndown  job  once  he  was  no  longer  taking  narcotic  pain  medication.  As  noted,  claimant \nreturned to work on January 10, 2025, for another employer.  \n Based  on the foregoing,  I  find  that  claimant has met his  burden of  proving by  a \npreponderance  of  the  evidence  that  he  is  entitled  to  temporary  total  disability  benefits \nbeginning December 12, 2024, and continuing through January 10, 2025. At one point \nin  the  hearing,  Attorney  Ryburn  indicated  that  respondent  had  paid  claimant  some \ntemporary  total  disability  benefits  beginning  on  the  date  of  the  surgery.  Respondent  is \nentitled to a credit for any temporary total disability benefits previously paid. \n \n \n\nShelton – H404171 \n \n-10- \nAWARD/ORDER \n Claimant has met his burden of proving by a preponderance of the evidence that \nhe  is  entitled  to  temporary  total  disability  benefits  beginning  December  12,  2024,  and \ncontinuing  through  January  10,  2025.  Respondent  is  entitled  to  a  credit  for  any \ntemporary total disability benefits previously paid during this period of time. Respondent \nhas controverted claimant’s entitlement to any unpaid temporary total disability benefits. \nPursuant  to  A.C.A.  §11-9-715(a)(1)(B),  claimant’s  attorney  is  entitled  to  an \nattorney fee in the amount of 25% of the compensation for indemnity benefits payable to \nthe claimant.   Thus, claimant’s attorney is entitled to a 25% attorney fee based upon \nthe indemnity benefits awarded.   This fee is to be paid one-half by the carrier and one-\nhalf by the claimant.   Also pursuant to A.C.A. §11-9-715(a)(1)(B), an attorney fee is not \nawarded on medical benefits. \nAll  sums herein  accrued are payable  in a  lump  sum and  without  discount.   This \naward shall bear interest at the maximum legal rate until paid. \nRespondents  are  liable  for  payment  of  the  court  reporter’s  charges  for \npreparation of the hearing transcript in the amount of $547.50. \n IT IS SO ORDERED. \n      _______________________________ \n      GREGORY K. STEWART \n      ADMINISTRATIVE LAW JUDGE","preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H404171 HUNTER SHELTON, Employee CLAIMANT DIVERSIFIED, LLC, Employer RESPONDENT TRAVELERS PROPERTY CASUALTY CO. OF AMERICA, Carrier RESPONDENT OPINION FILED JUNE 23, 2025 Hearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Springdale, Washington Cou...","fetched_at":"2026-05-19T22:39:58.112Z","links":{"html":"/opinions/alj-H404171-2025-06-23","pdf":"https://www.labor.arkansas.gov/wp-content/uploads/SHELTON_HUNTER_H404171_20250623.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}