{"id":"alj-H405323-2025-03-13","awcc_number":"H405323","decision_date":"2025-03-13","opinion_type":"alj","claimant_name":"Michael Risner","employer_name":"Geels Paint & Wallcovering Inc","title":"RISNER VS. GEELS PAINT & WALLCOVERING INC. AWCC# H405323 March 13, 2025","outcome":"granted","outcome_keywords":["granted:4"],"injury_keywords":["back","wrist","repetitive","fracture"],"pdf_url":"https://www.labor.arkansas.gov/wp-content/uploads/RISNER_MICHAEL_H405323_20250313.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"RISNER_MICHAEL_H405323_20250313.pdf","text_length":32493,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO. H405323 \nMICHAEL J. RISNER, EMPLOYEE CLAIMANT \n \nGEELS PAINT & WALLCOVERING INC., EMPLOYER RESPONDENT \n \nSUMMIT CONSULTING LLC, CARRIER/TPA RESPONDENT \n \n \n OPINION FILED MARCH 13, 2025 \n \n \nHearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Springdale, Washington \nCounty, Arkansas. \n \nClaimant represented by JARID M. KINDER, Attorney, Fayetteville, Arkansas. \n \nRespondents represented by JASON M. RYBURN, Attorney, Little Rock, Arkansas. \n \n \n STATEMENT OF THE CASE \n  \n On January 2, 2025, the above captioned claim came on for a hearing at Springdale, Arkansas. \nA pre-hearing conference was conducted on November 21, 2024, and a pre-hearing order was filed \non that same date. A copy of the pre-hearing order has been marked as Commission’s Exhibit #1 and \nmade 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 this claim. \n            2.   The employee/employer/carrier relationship existed on August 4, 2023. \n3.   The respondents have controverted the claim in its entirety.  \n By agreement of the parties, the issues to be litigated and resolved at the forthcoming hearing \nwere limited to the following: \n\nRisner-H405323 \n2 \n \n           1.   Compensation rate.\n1\n  \n           2.   If compensable, whether claimant is entitled to medical benefits. \n           3.   Whether claimant sustained a compensable injury regarding his right upper extremity on  \n                August 4, 2023.   \n All other issues are reserved by the parties. \n The claimant contends that “He sustained a compensable upper extremity injury on August 4, \n2023, while  working  for  Geels  Painting  in  Bentonville,  Arkansas. The  claimant  contends  that  he  is \nowed medical benefits. Due to the controversion of entitled benefits, the respondents are obligated \nto  pay  one-half of the claimant’s attorney’s fees. Claimant reserves the right to raise additional \ncontentions at the hearing of this matter.” \n In  an  amended  prehearing information  filed December  26,  2024,  the  respondents  contend \nthat “The claimant did not suffer a compensable injury to his elbow. He missed no time. No attorney’s \nfee can be awarded.” \n From a review of the entire record including medical reports, documents, and other matters \nproperly  before  the  Commission,  and  having  had  an  opportunity  to  hear  the  testimony  of  the \nwitnesses and to observe their demeanor, the following findings of fact and conclusions of law are \nmade in accordance with A.C.A. §11-9-704: \n \n  FINDINGS OF FACT & CONCLUSIONS OF LAW \n \n1. The  stipulations  agreed  to  by  the  parties  at  a  pre-hearing  conference  conducted  on \nNovember 21, 2024, and contained in a pre-hearing order filed that same date are hereby \naccepted as fact. \n \n1\n Although listed as an issue, there was no claim for indemnity benefits before me, and therefore the parties did not \npresent any evidence on this issue, which is now reserved. \n\nRisner-H405323 \n3 \n \n \n2.  Claimant has met his burden of proof by a preponderance of evidence that he suffered a \ncompensable injury to his right upper extremity on August 4, 2023.  \n3.    Claimant has met his burden of proof by a preponderance of evidence that he is entitled \nto  medical  treatment  from  Dr. Chad  Songy for the  compensable  injury  to his right  upper \nextremity injury. \n FACTUAL BACKGROUND \n In reviewing claimant’s exhibits, I noticed pages 16 and 23 had portions missing at the bottom \nof  each  page. The complete progress  notes  from August  15, 2024, and  November  7,  2024, were \nobtained, and  by  agreement  of  the  parties,  are  blue  backed  to  the  record,  along  with  the  email \ncorrespondence we had regarding those records.  \nHEARING TESTIMONY \n \n Claimant testified that he had worked for respondent Geels Paint for ten years, sometimes as \nthe foreman of a job, and other times as a painter. He testified that his job involved lifting five-gallon \npaint  buckets  which  were  approximately  sixty  pounds,  along  with  ladders,  tools, and  the  like. On \nAugust 4, 2023, claimant testified that the hydraulics failed on the boom lift he was using and slammed \ndown,  causing part  of  the  boom  lift  to  hit his  forearm.  After  the  shock of  the  incident was  over, \nclaimant noticed his forearm was hurting and saw a golf ball sized knot rising on his arm.  A coworker \ntook pictures of it for him, which were immediately sent to Logan Geels, his employer. Claimant told \nMr. Geels that he was on the way to the doctor and also notified his direct supervisor on this job, \nSteve Cortright. Neither Mr. Geels nor Mr. Cortwright instructed claimant to go to a doctor, so he \nwent to Washington Regional Urgent Care in Bentonville. He said at the time that he had decided to \ngo to the doctor, his arm felt like it was on fire and had a huge lump on it. Besides taking x-rays, the \nmedical  provider did  little  else except  advise  him  to  take  Tylenol  and  follow  up  with  Ozark \n\nRisner-H405323 \n4 \n \n \nOrthopedics or his primary care physician.  \n Claimant testified that Logan Geels asked him to put it under his private insurance and that \nthe  company  would  cover  all  co-pays. Claimant  did  not  fill  out a workers’ compensation incident \nreport and did not ask respondent Geels Painting to open a workers’ compensation case on his behalf. \nIt was his understanding that a workers’ compensation claim causes the insurance rating to go down \nwhich prevented the company from getting large jobs with the University of Arkansas, Cargill, and \nother  such  companies. He believed  that by this  injury  being  turned  into  his  private  insurance,  the \ncompany could continue to get jobs.  \n Claimant went to Ozark Orthopedics on August 11, 2023, but was not offered any form of \ntreatment. His  arm  remained  sore  and  continued  to  hurt  between  August  11, 2023, and  March  22, \n2024. He did not believe that it had gotten any better, and had started to go numb, so in March 2024, \nhe went to Urgent Care. In June 2024, claimant was seeing a doctor for some back issues which are \nunrelated to this injury and mentioned to his doctor that his elbow was still hurting and going numb. \nHe  was  referred  to  Dr. Chad Songy, who  saw claimant on  August  15,  2024. Following that  visit, \nclaimant asked that his employer pay for the surgery, at which time the employer offered to pay the \nco-pay  and  pay  him  for  being  off  work  for  two  months. Claimant  believes  that  the  surgery  would \nrequire him to be off work for four months and sought legal representation. Claimant has not yet had \nthe recommended surgery because he could not afford to be off work for four months without being \ncovered. Claimant denied he had any issues with his arm before August 4, 2023.  \n On cross-examination, claimant said that he struck his forearm on August 4, 2023, on what \nwould be the right side of his arm if his palm was facing downward. He agreed that he did not actually \nstrike his elbow on August 4, 2023. His initial report denied elbow pain, because at the time his pain \nwas in his forearm. When asked if the surgery he was requesting was regarding his elbow, claimant \n\nRisner-H405323 \n5 \n \n \nsaid “No, it is the ligaments in the forearm that connects to the elbow. It tore from the elbow, but it \ngoes all the way to the wrist.”  He agreed that the original pain on August 4, 2023, was where the strike \nhad happened but now has pain in the elbow itself from continuing working. The soreness persisted, \nand when he began experiencing numbness, he grew concerned. \n Claimant agreed that he continued working full time as a painter between August 2023 and \nMarch 2024, using rollers, brushes, sprayers, pole extensions, and the like. He said his pain increased \nbased on the constant movement of his arms while he was painting, rolling, and otherwise performing \nhis job duties.  \n Claimant denied that he had had an injury or any sort of trauma to his arm or elbow prior to \nthis incident. He was unaware that he had a bone spur in his elbow, which he understood to be calcium \ndeposits from injuries in the area. He did not deny that there was a bone spur there but agreed that \nthe bone spur was not caused by the incident on August 4, 2023. \n The following exchange took place between the respondent’s attorney and claimant: \nQuestion. (By Mr. Ryburn) Would you agree with me they could not say, at least \nthis radiologist who read the x-ray could not say that this – it’s hard to read, \nactually,  but  the  spur,  it  says  on  certain acuity. Would  you  agree  that  they \ncouldn’t say that this was caused by the accident? \nAnswer. (By claimant) The bone spur was not caused by it, but that is where it \nhad cracked. It was a bone spur there and at the time of impact, obviously there \nmust have been impact on the elbow that cracked the spur. \n \nQ.  Now you say that earlier you didn’t hit your elbow? \nA.  I hit my arm. The bar is right here (indicating), so it may have hit the elbow, \nor it may not have. \n \nQ.  You don’t know if it hit your elbow? \nA. I don’t know at the time. I  felt  the  pain  here  (indicating). And like  I  said \nwhen it hit, I didn’t realize what had happened. \n \nThe Court: When you pointed, you said that you felt the pain here. What were \nyour referring to? \nThe Witness:  My forearm. \nThe Court:  Okay. Thank you. \n\nRisner-H405323 \n6 \n \n \n \n Claimant said that between the time of the injury and March 2024, the pain was in his forearm \nand elbow from repeated working. Claimant conceded he did not know if the torn ligament existed \nfollowing  the  injury in  August  2023. He stated  that he  had  no  problem  before  he  was  injured,  but \nwithin seven months of the incident, the pain increased to where his arm was going numb. Claimant \ntestified that he was using his right arm for rolling and brushing but was doing heavy lifting with his \nleft arm.  \n Claimant was asked if he had been tested for marijuana on August 4, 2023, if he would have \ntested positive and he agreed that he would have done so, because he has a medical card. He believed \nthat a urine test would have been positive, but a mouth swab would not. \n Claimant stated that he was seeing a pain management doctor for issues with his back and did \nnot  know  why  those  records  were  not  provided  to  the  respondent  during  discovery. As  claimant \nstated,  it  was  that  physician  that  referred  him  to  Dr.  Songy. Claimant  also  did  not  know  why  the \nphysical therapy records were not provided in discovery. Claimant denied that he knew anything had \nhappened other than repetitive use of his elbow between August 4, 2023, and March 2024. He did not \nknow why the x-ray in August 2023 did not show the enthesophyte that was apparent in the MRI. \nClaimant was asked about Dr. Songy’s records, and  the  following  exchange  took  place  between \nrespondent’s counsel and claimant: \nQuestion. (By Mr. Ryburn) He says “He had an injury at work on, August 2023 \nwhenever he had a boom lift accident and injured his right elbow. He has pain \nlatterly and posterior on the elbow. He has pain with direct impact on the back \nof the elbow.” Would you not agree with me that describes more of an on-\ngoing current situation? \nAnswer. (By claimant) The reason he would be saying elbow, I would assume, \nwould be because that is where the ligaments are attached. \n \nQ.  My question really is about the direct impact. He says, “He has pain with \na direct impact to the back of the elbow.” \n\nRisner-H405323 \n7 \n \n \nA. Then he misunderstood. The impact was on the forearm. \n \nQ.  So, you don’t think he is implying you had and reported some direct impact \non the back on the elbow? \nA.  Correct. \n \n  Claimant was clear that he did not have impact to the back of his elbow after August \n2023, and did not know why the doctor said what he did. Claimant told the doctor where the pain \nwas,  which  went  from  his  elbow  to  his  wrist  and  there  was  a  sharp  pain  in  the  elbow  where  the \nligaments are attached. Claimant was referred to Rise Therapy which he charged to his insurance and \nrespondent  Geels  paid  the  co-pays. He  stated  that  he  agreed  that  he did  not have  any  swelling,  or \ndeformity or redness in his right elbow but was suffering from numbness and tingling in the fourth \nand fifth finger, along with pain upon palpation to the medial aspect of the right elbow over the radial. \nHe said this began in March 2024, about a week ago before he went to therapy. He did not attribute \nany incident or activities specifically that started the numbness or tingling other than working. He did \nstate  that  he  had  pain  in  his  elbow  from August 2023  and  then  the  numbness  started. Claimant  is \nrequesting a specific surgery to repair the ligament that was torn which was causing pain in his whole \narm.  \n The following exchange took place between respondent’s attorney and claimant: \nQuestion. (By Mr. Ryburn) Okay, but we don’t know that that ligament was \ntorn or August 2023; correct? \nAnswer. (By claimant) It was probably just damaged, but continuing working \ncaused more damage.  \n \nQ.  Okay. It was probably damaged, so you are essentially speculating, \nA. I didn’t have an MRI in August. The only way they can tell if a ligament or \nmuscle was damaged was by the MRI, and not by x-rays. \n \nQ.  Okay. In  addition  to  that, this  pain  changed  significantly  seven  months \nlater; correct? \nA.  From working, yes. \n \n Claimant  said  he  did  attribute  the  increase  in  pain  to  constant  movement  from  rolling, \n\nRisner-H405323 \n8 \n \n \nbrushing, reaching above his head, and climbing ladders, but the numbness started in March 2024. He \nsaid he was starting to get more of a burning feeling in the forearm and then it went to numbness and \na sharp pain in the elbow and forearm. There had been an increase and spread of the pain in February \nand March 2024. Claimant testified that he had hobbies that he engaged in before the injury, such as \nforaging and building motorcycles, but he had not done such since before the injury. \n On redirect examination, claimant stated that he was in his tenth year working for respondent \nGeels Painting and had continually done repetitive work during that time. He denied any pain in his \nupper extremities before August 4, 2023. After the day of the incident, claimant had pain in his forearm \nfor the first few weeks and some soreness of the elbow which then became numbness around the end \nof February, or the beginning of March 2024. Claimant stated that his symptoms changed over time \ndepending on how much work he had been doing. There were days when he got home and could not \nmove his arm at all, while other days he could use his left arm a lot more during work, and the pain in \nthe right arm was not as bad that night. Claimant said the surgery that was proposed was to reattach \nthe ligament in his right arm that was identified by the MRI.  \n On recross-examination, claimant admitted that the history that the doctors relied on came \nfrom him. \n The following exchange took place between claimant and respondent’s attorney: \nQuestion. (By Mr. Ryburn) Is it fair to say your elbow pain in your forearm \nprogressed due to work activities subsequent to August 2023? \nAnswer. (By claimant) Are you asking did it get worse because of working? \n \nQ.  Well, when you said, what are you referring to? \nA.  The pain in my arm. \n \nQ.  When you are saying your arm, what part of your arm are you referring to? \nA.  The forearm and elbow is where the ligament attaches. \n \nQ.  Okay. I understand where the ligament attaches. As far as what you injured \ninitially was your forearm; right? \n\nRisner-H405323 \n9 \n \n \nA.  Correct. \n \nQ.  And the pain – \nA.  Where the ligament runs and would possibly cause the tear. \n \nQ.   Possibly? \nA.  Because the ligament goes from the elbow to the – everyone is focusing on \nthe elbow. The elbow is where the ligament attaches. It happened here on the \nforearm where it could have pulled on that ligament to cause the damage. \n \nQ.  But you admit you are necessarily speculating? \nA. Yes, I am not a doctor. I am a painter. \n \nQ.  Okay? \nA.  All I know is before the injury, it did not hurt. After the injury, it hurt and \nprogressively got worse. \nQ.    Okay. But  you  would  agree  with  me  you  could  have  an  injury  after  an \ninjury; correct? \nA.  You could. I didn’t, but you could get hurt again, yes.  \n \n Claimant  then  confirmed  that  to  this  point,  he  had  used  his  self-insurance  to  pay  for  his \ntreatment and respondent Geels covered all the co-pays. \n After the parties rested, the Court had this exchange with claimant: \nThe Court: I am confused. You’ve got health insurance?  \nThe Witness: Yes. \n \nThe Court: And you have been running this on health insurance? \nThe Witness: Yes sir. \n \nThe Court: Why was there a gap in treatment from August 11, 2023, through \nMarch 2024? \nThe Witness: Over that time, I was just sore. I figured it would go away over \ntime, so I continued working. \n \nThe  Court:  Okay. And  then  there  was  the  gap  from  when  you  saw  Nurse \nDallas until you saw Dr. Songy. I also am not asking hearsay, but I am just \nwanting to know, was there a problem getting in to see Dr. Songy? \nThe Witness: Michelle Dallas did not refer me to Dr. Songy. When she had \nlooked  at  it,  she  said  that  she  thought  it  was  tennis  elbow. In  June  when  I \nwent to my pain management specialist, that’s when I mentioned it to him. I \nsaid “Hey this doesn’t seem right. This is still going on since August.” \n \nThe  Court: This is going to sound like it is an accusation and it isn’t. I am \n\nRisner-H405323 \n10 \n \n \nactually trying to find out why. You didn’t have to go through the workers’ \ncompensation  carrier  to  see  a  doctor  because  they  denied  the  claim. \nSometimes if someone has a comp. claim, they have to wait for the adjuster \nto make an appointment. You didn’t have that limitation, so I am trying to \nfind out – again, we don’t have any records from the spine doctor from June \nadmitted here, but you are telling me that you saw him in June? \nThe Witness:  Correct. \n \nThe Court:  And that has nothing to do with your work at all? \nThe Witness: Correct. I was there for another reason, and I brought it up to \nhim. \n \nThe Court:  Okay, then he got you in to see Dr. Songy? \nThe Witness:  Once he saw the MRI he said, “you need to go see a surgeon.” \n \n After  the  question  from  the court,  claimant’s  counsel  asked  questions  for  clarification \npurposes. Claimant believed that the injury was going to heal on his own and he just gave it time from \nAugust 2023 to March 2024. He did a course of physical therapy which did not relieve the pain and \nnumbness in his arm. \nREVIEW OF MEDICAL RECORDS \n The claimant’s testimony explained most of what was in the medical records which are relevant \nto  this  claim. He  first  went  to  Washington  Regional  Urgent  Care,  where Nurse  Practitioner  Sean \nKremers saw claimant, and his arm was x-rayed. Nurse Kremers recorded the following diagnosis: \n“Contusion  of  unspecified  forearm,  initial  encounter. Injury,   acute, \nuncomplicated. Unspecified  fracture  of  lower  end  of  unspecified  humerus, \ninitial encounter for closed fracture.” \n \n \n In the assessment and plan, regarding the contusion of claimant’s forearm, he was advised to \nrest, ice and elevate the affected area and keep an ace wrap on for compression. Claimant was advised \nthat if his condition worsens, he needed another evaluation at an emergency room or a primary medical \nclinic. Regarding the unspecified fracture of the lower end of the unspecified humerus, it was suggested \nthat  claimant  sees  a  specialist  for  further  evaluation  and  a  case  manager  was  to  contact  claimant \n\nRisner-H405323 \n11 \n \n \nregarding his appointment pertaining to that referral.  \n On August 11, 2023, claimant saw Dr. Christopher Henley following the referral from Nurse \nKremers. The  report  from  this  visit and  in  the  few  entries  from  Dr.  Henley,  there  appears  to  be a \ncontradiction. On the history and physical information, the chief complaint was recorded as: \n“Right forearm pain. He fell at work seven days ago, hitting the right elbow. \nHe  denies  elbow  pain. All  of  his  pain  and  swelling  is  along  the volar ulnar \nproximal. He has been working since the incident.” \n \n Despite Dr. Henley recording that claimant denied elbow pain, he stated that the part of the \nbody being treated was the elbow. \n On  March  22,  2024,  claimant  went  to  Humana  Family  medicine  and  saw  ARPN  Michelle \nDallas. During her examination, Nurse Dallas recorded the following as it relates to claimant’s right \nupper extremity: \n“Numbness and tingling in the fourth and fifth finger, pain with palpation at \nremedial  aspect  of  right  elbow  over  radial  nerve  location,  no  swelling, \ndeformity, or redness of right elbow.”  \n \n The remaining records were from Dr. Chad Songy at UAMS. Dr. Songy first saw claimant on \nAugust 15, 2024. Dr. Songy reviewed x-rays and an MRI finding: \n“Patient’s elbow has a well aligned radio capitellar and ulna humeral joint on \nx-ray  with  no  advanced  arthritis. He  does  have  enthesophyte  present,  does \nlook like there is a fracture in the enthesophyte. On the MRI, patient does have \nsignificant   tearing   to   the   common   extensor   mechanism   of   the   lateral \nepicondyle with extension into the lateral collateral ligament.” \n \n \nFor  his  assessment on August  15, 2024,  Dr.  Songy  found  the  claimant  had 1.  Right lateral \nepicondylitis, 2. Complete  tear  of  the  lateral  collateral  ligament  of  the  elbow  and 3. Elbow \nenthesopathy. Dr. Songy did not believe that the enthesophyte needed surgery, but thought the most \nreliable  option  for the  other  two  conditions would  be  a  debridement  of  the  common  extensor \n\nRisner-H405323 \n12 \n \n \nmechanism  with  repair  down  to  the bone  and  a lateral collateral repair.” Claimant  wanted  to think \nabout whether he wanted to have surgery to repair this condition.  \nClaimant  returned  to  Dr.  Songy  on November  7,  2024. Between  these  visits,  claimant had \nbeen seen by his pain management physician and had done a course of physical therapy; he returned \nthis day to discuss surgery. In his notes from that examination, Dr. Songy recorded: “On the MRI, \npatient does have significant tearing to the common extensor mechanism off the lateral epicondyle \nwith extension into the lateral collateral ligament.”  \n  \nADJUDICATION \n \nRespondents  denied  that  claimant  suffered  a  compensable  injury to  his  elbow. Therefore, \nbefore focusing on the elbow, it is claimant’s burden of proof to first show he suffered a compensable \ninjury of  any type, which  requires  proof (1)  that  the  injury  arose  out  of  and  in  the  course  of  the \nemployment,  (2)  that  the injury  caused  internal  or external  harm  to  the  body  that  required  medical \nservices, (3) that there is medical evidence supported by objective findings establishing the injury, and \n(4)  that  the  injury  was  caused  by  a  specific  incident  and  identifiable  by  the  time  and  place  of  the \noccurrence, Ark. Code Ann. § 11-9-102(4). Claimant bears the burden of proving a compensable injury \nby a preponderance of the credible evidence, Ark. Code Ann. § 11-9-102(4)(E)(i). Compensation must \nbe  denied  if  the  claimant  fails  to  prove  any  one  of  these  requirements  by  a  preponderance  of  the \nevidence. Mikel v. Engineered Specialty Plastics, 56 Ark. App. 126, 938 S.W.2d 876 (1997). \nThe evidence in this case supports that claimant suffered a compensable injury. Claimant was \nengaged  in  work  activity  when  the  boom  failed and  injured  his  forearm on  August 4,  2023, thus \nsatisfying the first and fourth element. The medical record from that day notes swelling and bruising \nof his right forearm (Cl. ME. 1), which were objective findings that showed harm to his body. Claimant \nwas credible that all of this was known by the respondent employer on the day of the accident, yet the \n\nRisner-H405323 \n13 \n \n \nemployer did not provide medical care to him as required by Ark. Code Ann. § 11-9-508, nor did it \nfile the report of injury required by Ark. Code Ann. § 11-9-529. Instead, claimant was instructed to \ntreat this as a non-work-related injury and use his private insurance coverage.  \n Before leaving the general question as to compensability, it is necessary to address a defense \nraised  by  respondent  at  the  close  of  the  hearing.  Respondent contended claimant  did  not  suffer  a \ncompensable injury per Ark. Code. Ann §11-9-102(4)(B)(iv) because he admitted during his testimony \nthat  he  would  have  had  a  positive  urine  test  for  marijuana  on  August  4,  2023.  That  section  of  the \nstatute provides:  \n(B) \"Compensable injury\" does not include: \n.... \n( iv)( a) Injury where the accident was substantially occasioned by the use of \nalcohol, illegal drugs, or prescription drugs used in contravention of physician's \norders. \n(  b)  The  presence  of  alcohol,  illegal  drugs,  or  prescription  drugs  used  in \ncontravention of a physician's orders shall create a rebuttable presumption that \nthe injury or accident was substantially occasioned by the use of alcohol, illegal \ndrugs, or prescription drugs used in contravention of physician's orders. \n( c) Every employee is deemed by his or her performance of services to have \nimpliedly consented to reasonable and responsible testing by properly trained \nmedical  or  law  enforcement  personnel  for  the  presence  of  any  of  the \naforementioned substances in the employee's body. \n(d) An employee shall not be entitled to compensation unless it is proved by a \npreponderance of the evidence that the alcohol, illegal drugs, or prescription \ndrugs utilized in contravention of the physician's orders did not substantially \noccasion the injury or accident.  \n \nBecause the respondent employer mishandled this case, there was no drug screen performed \nat the urgent care facility claimant visited on the day of the injury. Ordinarily, the positive test would \ncreate the rebuttable presumption set forth above. Despite having no results of a drug screening, I \nbelieve claimant's testimony under oath is sufficient to create that presumption. However, without any \nother  proof  to  the  contrary,  I  am  satisfied  that  the  evidence  in  the  case  is  such  that  claimant  has \nrebutted the presumption that his injury was substantially occasioned by the use of marijuana. The \n\nRisner-H405323 \n14 \n \n \nonly  evidence  I  heard  was  that  the  boom  itself  failed,  not  that  it  was  improperly  operated  due  to \nclaimant’s use of marijuana on the day of the accident. There  was  no  testimony  that  claimant was \nunder the influence of a controlled substance while he was on the job. Therefore, claimant’s admitted \nuse of marijuana while off-duty is not a bar to this claim.  \nHaving determined that the injury to claimant’s forearm meets the criteria of a compensable \ninjury and is not barred by his off-duty use of marijuana, the question then becomes if claimant proved \nby  a  preponderance  of  the  evidence  that  the  specific  treatment  he  sought is necessitated by the \ncompensable  injury. Respondents  urged  that  the  proof  was  insufficient  to support the claimant’s \nburden of proof but presented nothing in opposition to the evidence before me. Lateral epicondylitis \n(commonly called tennis elbow) can be caused by both overuse and acute trauma.\n2\n  As I have found \nthere was an acute trauma to the forearm, I would be forced to speculate that he would have developed \nthe same symptoms without that compensable injury to the forearm.  \nClaimant did not specifically assert that the lateral epicondylitis was a natural consequence of \nhis  forearm  injury,  but that is  not  necessary for the  Commission  to  consider if  such  was  the  case, \nConagra Packaged Foods, LLC v. Beauchamp, 2024 Ark. App. 548.\n3\n  If an injury is compensable, every \nnatural consequence of that injury is likewise compensable. Air Compressor Equip. Co. v. Sword, 69 Ark. \nApp. 162, 11 S.W.3d 1 (2000); Hubley v. Best West. Governor's Inn, 52 Ark. App. 226, 916 S.W.2d 143 \n(1996). The test is whether a causal connection between the two (2) episodes exists. Sword, supra; Jeter \n \n2\n See https://my.clevelandclinic.org/health/diseases/7049-tennis-elbow-lateral-epicondylitis,  referring  to  causes  for \ntennis elbow: “Any motion or activity that you frequently repeat can trigger tennis elbow. Extra stress from repetitive \nmovements builds up over time. Eventually, that  added use  and stress on your extensor muscle  tendon causes tiny \ntears (microtraumas). Those microtraumas cause symptoms you can feel and notice. \n \nIt is less common, but a sudden arm or elbow injury can also cause tennis elbow.” (Emphasis added) \n \n \n3\n Claimant did not allege a gradual onset injury as an alternative theory, and I decline to consider that alternative in \nthis opinion, leaving that as a reserved issue.  \n\nRisner-H405323 \n15 \n \n \nv. McGinty Mech., 62 Ark. App. 53, 968 S.W.2d 645 (1998). The existence of a causal connection is a \nquestion of fact for the Commission. Koster v. Custom Pak & Trissel, 2009 Ark. App. 780. It is generally \na  matter  of  inference,  and  possibilities  may  play  a  proper  and  important  role  in  establishing  that \nrelationship. Osmose  Wood  Preserving  v.  Jones,  40  Ark.  App.  190, 843  S.W.2d  875  (1992). A  finding  of \ncausation  need  not  be  expressed  in  terms  of  a  reasonable  medical  certainty  where  supplemental \nevidence supports the causal connection. Koster, supra; Heptinstall v. Asplundh Tree Expert Co., 84 Ark. \nApp. 215, 137 S.W.3d 421 (2003). \nWhile  I recognize  the  evidence  in  this  case could  have  been  more  extensive,  what was \npresented satisfies me that claimant has met his burden of proving a compensable injury for which he \nis entitled to medical treatment as directed by Dr. Songy. The employer’s failure to report this injury \nto the insurance carrier and thus having this managed as a normal compensation claim has created \nproblems for both the carrier and the claimant. Because of his employer’s disregard of the law which \nrequires  injury  claims  to  be  reported  and  medical  care  provided  for  an  injured  worker,  claimant \ncontinued to work with an injured arm until such time as it became too painful for him to ignore. That \nis unfortunate, because there is a recognized course of treatment for tennis elbow that includes many \nnon-surgical  options;\n4\n a  case  manager for  the  carrier could  have  ensured  claimant  received proper \ntreatment for his injury and perhaps avoided the necessity of surgery.   \n \nORDER \n \nClaimant has met his burden of proving by a preponderance of the evidence that he suffered \na compensable injury to his right upper extremity on August 4, 2023.  \n \n4\n See https://www.jsmcentral.org/assets/articles/fulltext_smjo-v2-1043.pdf “In   patients   presenting   Lateral \nEpicondylitis from acute trauma, prompt care has shown to be highly effective in curtailing pain symptoms.” The \narticle lists the various treatment options before surgery should be considered. \n\nRisner-H405323 \n16 \n \n \nClaimant  has  met  his  burden  of  proving  that  he  is entitled  to medical  treatment  as \nrecommended by Dr. Songy for his compensable injury. \nWhile this matter was controverted,  A.C.A § 11-9-715(a)(1)(B)(ii) provides that attorney’s fees \nare awarded \"only on the amount of compensation for indemnity benefits controverted and awarded.\" \nIn this case, there was no claim for indemnity benefits, and therefore no attorney's fee can be awarded \nin this matter at this time. \nRespondent  is  responsible  for  paying  the  court  reporter  her  charges  for  preparation  of  the \ntranscript in the sum of $ 568.45. \n IT IS SO ORDERED. \n                                                                                            \n_______     \n JOSEPH C. SELF \nADMINISTRATIVE LAW JUDGE","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H405323 MICHAEL J. RISNER, EMPLOYEE CLAIMANT GEELS PAINT & WALLCOVERING INC., EMPLOYER RESPONDENT SUMMIT CONSULTING LLC, CARRIER/TPA RESPONDENT OPINION FILED MARCH 13, 2025 Hearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Springdale, Washington Cou...","fetched_at":"2026-05-19T22:42:32.735Z","links":{"html":"/opinions/alj-H405323-2025-03-13","pdf":"https://www.labor.arkansas.gov/wp-content/uploads/RISNER_MICHAEL_H405323_20250313.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}