{"id":"alj-H406506-2025-10-02","awcc_number":"H406506","decision_date":"2025-10-02","opinion_type":"alj","claimant_name":"Miranda Delgado","employer_name":"J T Handyman & Lawncare, LLC","title":"DELGADO-MIRANDA VS. J T HANDYMAN & LAWNCARE, LLC AWCC# H406506 October 02, 2025","outcome":"granted","outcome_keywords":["granted:2"],"injury_keywords":["neck","back","shoulder","rotator cuff","thoracic","cervical"],"pdf_url":"https://www.labor.arkansas.gov/wp-content/uploads/DELGADO_MIRANDA_ELISEO_H406506_20251002.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"DELGADO_MIRANDA_ELISEO_H406506_20251002.pdf","text_length":33947,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO. H406506 \n \nELISEO DELGADO-MIRANDA, EMPLOYEE CLAIMANT \n \nJ T HANDYMAN & LAWNCARE, LLC, UNINSURED EMPLOYER RESPONDENT \n \n \nOPINION FILED OCTOBER 2, 2025 \n \n \nHearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Springdale, Washington \nCounty, Arkansas. \n \nClaimant represented by EVELYN E. BROOKS, Attorney, Fayetteville, Arkansas. \n \nRespondents represented by BRIAN G. THOMAS, Attorney, Fayetteville, Arkansas. \n \n \n STATEMENT OF THE CASE \n  \n On July 10, 2025, the above captioned claim came on for a hearing at Springdale, Arkansas.  \nA pre-hearing conference was conducted on November 14, 2024, and a pre-hearing order was filed \non that same date.  The matter was originally set for a hearing on January 10, 2025, but the parties \nrequested additional time to complete discovery.  The order of November 14, 2024, was not modified, \nand a copy of that pre-hearing order has been marked as Commission’s Exhibit #1 and made a part \nof the record without objection. \n There were no stipulations announced at the pre-hearing conference.  After this matter was \ntried, the parties stipulated that claimant’s average weekly wage at the time of his accident was $172.80, \nwhich yields a temporary total disability rate of $115.00 per week.     \n By agreement of the parties, the issues to be litigated and resolved at the forthcoming hearing \nwere limited to the following: \n           1.    Whether the Commission has jurisdiction over this claim. \n\nDelgado-Miranda-H406506 \n2 \n \n \n           2.    If the Commission has jurisdiction, did claimant suffer a compensable injury on August 8, \n2024. \n           3.    If compensable, whether claimant is entitled to temporary total disability benefits, medical \nbenefits, and attorney’s fees. \n           4.    If compensable, whether respondent is entitled to any credits or offset for payment made \nby a third party.  \n All other issues are reserved by the parties. \n The claimant contends that “He is entitled to medical treatment for his neck, back and left \nshoulder, and to temporary total disability benefits form August 9, 2024, to a date yet to be determined.  \nClaimant reserves all other issues.” \n The respondents contend that “Claimant was not an employee of respondent.  Even if he was \nan employee, he was not injured during the course of his employment.” \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 claimant \nand  to  observe his demeanor,  the  following  findings  of  fact  and  conclusions  of  law  are  made  in \naccordance with A.C.A. §11-9-704: \n \n  FINDINGS OF FACT & CONCLUSIONS OF LAW \n \n 1.   The stipulation agreed to by the parties after the hearing of this is hereby accepted as fact. \n 2.   The Arkansas Workers’ Compensation Commission has jurisdiction over this claim. \n 3.   Claimant has met his burden of proving that he suffered a compensable injury to his neck, \nupper back and left shoulder, and is therefore entitled to medical benefits for those injuries.   \n 4.    Claimant has met his burden of proving he is entitled to temporary total disability from \nAugust 9, 2024, to a date to be determined. \n\nDelgado-Miranda-H406506 \n3 \n \n \nHEARING TESTIMONY \n \nClaimant was the only witness to testify at the hearing.  On August 8, 2024, claimant was in a \nmotor vehicle accident while driving J T Handyman’s truck.\n1\n Claimant testified he was returning from \na  job  site  to  Mr. Taverez’s home,  where  he  had  parked  his  truck  at  the  beginning  of  the  workday.  \nClaimant testified that he had worked on and off for Mr. Tavarez for about four years, doing tasks \nlike home remodeling, erecting fences and constructing decks.  Mr. Tavarez would contact claimant \nto  tell  him if  he  had  work  for  him  to  do.  Some  weeks  claimant  worked  two  or  three  days  a  week, \nothers would be an entire week and then there were weeks that he did not work at all.  Before 2023, \nclaimant worked for another individual on days he was not working for J T Handyman.\n2\n Claimant said \nhe was not licensed in carpentry or plumbing.  On the date of the accident, claimant had been working \nwith Mr. Tavarez and an unnamed woman.  Mr. Tavarez had two vehicles at the job site and claimant \nwas driving the one that was involved in the accident. \nClaimant testified that he was sometimes left to work alone on a job Mr. Tavarez had assigned \nhim. He was to contact Mr. Tavarez to let him know that he had completed the task.  Claimant said \nhe was paid by the hour by J T Handyman, but did not recall if it was $15.00 or $16.00 per hour. \nClaimant  testified  that  he  waited  a  couple  of  days  before  going  to  the  doctor  and  was \nexperiencing pain in his left shoulder, his head, and on his upper spine.  Claimant said that the doctor \ngave him pills for the pain in his head and for the pain in his body so that he could sleep.  He did \nphysical  therapy  and  was  eventually  referred  by  his  doctor  at  Community  Clinic  to  an  orthopedic \nspecialist where he had surgery on his left shoulder.   Claimant was wearing a sling at the time of the \n \n1\n The accident report lists “Flor Tavarez” as the owner of the vehicle.  It was referred to in the testimony as “Juan’s \ntruck.  For this opinion, a reference to Juan, Mr. Tavarez or J T Handyman is a reference to respondent.     \n2\n There was only one 1099 for claimant in each of the tax records provided, which indicates to me that  the second \nemployer did not keep tax records, nor did claimant report this income. \n\nDelgado-Miranda-H406506 \n4 \n \n \nhearing; the surgery took place on June 25, 2025, and he had not yet begun physical therapy.  Claimant \ntestified prior to surgery he couldn’t lift anything with his left shoulder, and he had been unable to do \nso since the time of the accident.  Claimant said he had a pain in his upper back which increased when \nhe bent down or tried to walk fast but was eased by using ice on it.  Claimant said that he would have \nnot been able to work at his employment due to the shoulder injury because he had to lift more than \nfive pounds in the course of his duties.  He explained that part of his duties included mixing cement \nand pouring it on poles used for fences.  He would have to lift the poles and the wood that used while \nperforming the work. \nOn cross-examination, claimant was asked about some entries in the medical records that are \ndifferent  from  his  testimony.    Because  the  records  were  in  English,  he  did  not  know  what  was \ncontained therein and had no explanation as to why his shoulder injury was not mentioned in his first \nrecord where he complained of back pain, left thigh pain, and eye discomfort.  He also did not know \nwhy the records said that he had an injury to his right shoulder when it was his left shoulder that was \ninjured in the accident.  Claimant testified that he had two MRIs, one on his spine and a second on \nhis left shoulder.  Claimant did not know why the records would say that his pain started in September \n2024.    Claimant  disagreed  that  the  January  2025  record  was  the  first  time  he  had  mentioned  left \nshoulder pain, but did not know why the medical records did not contain what he told them. \nClaimant testified that he was able to take trips while he was working for J T Handyman but \ndid so after telling Mr. Tavarez that he was going to be leaving the area.  Claimant did not know what \nMr. Tavarez had put on his checks as far as the memo line was concerned but said he was paid based \nupon how many hours he worked.  Claimant said that he did not need to be trained how to do the \nwork when he was on a job site.   \nOn  redirect-examination,  claimant  said  he  knew  how  to  do  tasks  like  cleaning  the  wall  for \n\nDelgado-Miranda-H406506 \n5 \n \n \npainting  and  dragging  wood  out  of  a  house,  but  each  day  he  was  given  directions  as  to  what  Mr. \nTavarez wanted him to do.  Claimant said that Mr. Tavarez kept track of his hours in a notebook, and \nclaimant had nothing to do with how the checks were made out.  He did not understand the purpose \nof a memo on a check, and he did not need that information for his taxes. \nWhen claimant wanted to make a trip to Mexico, he would tell Mr. Tavarez and was allowed \nto go.  After the accident, claimant spoke with Mr. Tavarez and was told that his medical treatment \nwas going to be covered.  When that didn’t happen, claimant sought counsel and through his attorney, \nfiled an AR-C form in which he listed his injuries, including his left shoulder.  Claimant said his physical \ntherapy was done on his left shoulder and he had no issues with his right shoulder. \nOn recross-examination, claimant explained that the day of the accident, he had been cleaning \nthe walls that were being painted.  That included removing nails with a crowbar.  The supplies for that \njob were in Mr. Tavarez’s truck.  Claimant said that he told Mr. Tavarez that he would call for work \nwhen he was okay to do so.  However, he had not called because he was not capable of working. \nUpon questioning by the Court, claimant said he did not have a contractor’s license and could \nnot work in the cities that required such.  Claimant clarified that he was hit on the driver’s side of the \nvehicle.  He also explained that if a job was in Springdale, he would use less gas if he went straight to \nthe job site, but if the job was in Fayetteville, he would normally go to Mr. Tavarez’s house first. \nLIST OF EXHIBITS \n \nIn  addition  to  the Prehearing Order  discussed above,  the exhibits admitted  into  evidence  in \nthis case were Claimant's Exhibit 1, a compilation of his medical records, consisting of one index page \nand 50 numbered  pages  thereafter;  Claimant's Exhibit 2,  non-medical  records,  consisting  of  one \nindex page and 34 numbered pages thereafter; Respondents' Exhibits 1-3A-C, 4,6 and 7, which were \nunnumbered and submitted without an index. Respondent’s Exhibit 5, an affidavit from a person not \n\nDelgado-Miranda-H406506 \n6 \n \n \ncalled as a witness, was proffered but was not received into evidence and was not considered in this \nopinion. \nREVIEW OF THE MEDICAL EXHIBITS \n \n Claimant began treatment at the Community Clinic in Springdale under the care of Dr. Claire \nServy.  These records show a course of conservative treatment including x-rays, medication, physical \ntherapy and an injection of Triamcinolone Acetonide in claimant’s left shoulder. When claimant did \nnot  respond,  he  was  referred  to Dr. Mark  Powell  for  surgery  on  his  rotator  cuff.    The submitted \nmedical records did not include the discharge summary of the rotator cuff surgery that claimant had \nin June 2025, because claimant was still being treated for his left shoulder injury at the time of the \nhearing. \nREVIEW OF THE NON-MEDICAL EXHIBITS \n The  records  submitted  by  both  parties  contained financial documents,  including copies  of \nchecks, tax returns and forms.  JT Handyman provided claimant with a 1099-NEC form for the years \n2020-2024.  The motor vehicle accident report showed the truck claimant was driving was struck on \nthe driver’s side door.  \nADJUDICATION \n \n In  its  contentions,  respondent  denied  that  the  Commission  has  jurisdiction  of  this  claim, \nbecause claimant was not an employee of JT Handyman, but rather an independent contractor. A.C.A. \n11-9-707(a)  (Repl.  1996)  provides  that  in  any  proceeding  for  the  enforcement  of  a  claim  for \ncompensation, a  prima  facie  presumption  shall  exist  that  the  Workers’ Compensation  Commission \nhas  jurisdiction.  Respondent  therefore  has  the  burden  of  proof  that  claimant  was  an  independent \ncontractor rather than an employee.   \n           At the time of this accident, A.C.A §11-9-102 read in pertinent part:  \n\nDelgado-Miranda-H406506 \n7 \n \n \n(9) “Employee” means an individual, including a minor, whether lawfully or unlawfully employed \nin  the  service  of  an  employer  under  a  contract  of  hire  or  apprenticeship,  written  or  oral, \nexpressed  or  implied,  and  the  individual’s  employment  status  has  been  determined  by \nconsideration  of  the  twenty-factor  test  required  by  the  Empower  Independent  Contractors \nAct of 2019, § 11-1-201 et seq. \n \nAct 1055 of 2019 (codified as A.C.A. §11-1-204) provided at the time of this accident as follows: \n \n Determination of employment status: \n \nFor purposes of this title, an employer or agency charged with determining the \nemployment status of an individual shall use the twenty-factor test enumerated \nby the Internal Revenue Service in Rev. Rul. 87-41, 1987-1 C.B. 296, in making \nits determination...[the individual factors discussed below]\n3\n \n  \n Before it was amended in 2025, there were no appellate decisions regarding the application of \nthe 20-factor test of Ark. Code. Ann § 11-1-204, and hence no guidance as to how those factors are \nto be weighed. The nine factors that comprised the common law test as set forth in appellate decisions \n(such as Riddell Flying Serv. V. Callahan, 90 Ark. App. 388, 206 S.W.3d 284 (2005)) were not applicable \nin 2024 as to whether an individual is an employee or independent contractor.  However, I do not \nbelieve that the cases that addressed the issue were completely overruled by this legislation; the statute \nsimply  substituted  the  20-factor  test  for  the  nine  common  law  factors.  Thus,  the  approach  to \ndetermining whether someone is an employee or an independent contractor remains the same, with \nthe factors to now be considered being those in A.C.A. §11-1-204. Franklin v. Arkansas Kraft, Inc., 5 \nArk. App. 264, 635 S.W.2d 286 (1982), cited in Riddell, contained this instructive passage: \n \n“There are numerous factors which may be considered in determining whether \nan injured person is an employee or an independent contractor for purposes of \nworkers’ compensation coverage. Obviously, the relative weight to be given the \nvarious factors must be determined by the Commission. Some of the factors \nwhich might be considered, depending on the facts of a given case, are [the nine \nfactors  omitted]  These  are  not all  the  factors  which  may  conceivably  be \nconsidered in a given case, and it may not be necessary in some cases for the \n \n3\n Both A.C.A §11-9-102(9) and §11-1-204 were amended by Act 743 of 2025. \n\nDelgado-Miranda-H406506 \n8 \n \n \nCommission to consider all of these factors. Traditionally, the “right to control” \ntest has been sufficient to decide most of the cases, although many variations \nof “control” have probably been squeezed into that test.”  \n \n Thus, some factors may not apply to these facts, and of the others, all may not be of equal \nimportance.  Based  on  the  evidence  before  me,  I find  the  following  to  have  been  proven  by  a \npreponderance of the evidence \n4\n \n \n(1)A  person  for  whom  a  service  is  performed  has  the  right  to  require  compliance  with  instructions,  including \nwithout limitation when, where, and how a worker is to work; \n \nMr. Tavarez told claimant where he would be working, kept up with the time, and directed the \ntasks on the job site.  \n \n(2) A worker is required to receive training, including without limitation through: \n(A) Working with an experienced employee; \n(B) Corresponding with the person for whom a service is performed; \n(C) Attending meetings; or \n(D) Other training methods; \n \nI do not see how this is applicable as far as training is concerned, because claimant had prior \nexperience in the construction and remodeling field.  However, if Mr. Tavarez wanted a job performed \nin a certain way, he retained the control to show claimant how he wanted it done.  \n \n(3) A worker’s services are integrated into the business operation of the person for whom a service is performed and are \nprovided in a way that shows the worker’s services are subject to the direction and control of the person for whom a service \nis performed; \n \nClaimant was not told to go to a certain property and perform his tasks, as an independent \ncontractor or subcontractor would be.  Thus, claimant’s work was integrated into that of respondent.  \n \n4\n Even though he appeared at the  hearing and had the burden of proving the Commission did not have jurisdiction \nover this matter, respondent Tavarez did not testify.  Claimant presented proof on many of these points which were \nunrebutted. While  a  claimant's  testimony  is  never  viewed  as  uncontroverted,  the  Commission  need  not  reject  the \nclaimant's  testimony  if  it  finds  that  testimony  worthy  of  belief. Ringier  America  v.  Combs,  41  Ark.  App.  47,  849 \nS.W.2d 1 (1993).  I found claimant overall to be a credible witness on the issues before me.  \n\nDelgado-Miranda-H406506 \n9 \n \n \n(4) A worker’s services are required to be performed personally, indicating an interest in the methods used and the results; \n \nThere was no evidence that claimant could send a substitute when JT Handyman wanted him  \nto work.  \n \n(5) A person for whom a service is performed hires, supervises, or pays assistants; \n \nI do not see the relevance of this factor to the case at bar.  \n \n \n(6) A continuing relationship exists between a worker performing services and a person for whom a service is performed; \n \nThere  is  no  question  that  the  parties  had  a  continuing  relationship.  However,  a general \ncontractor could have a painter he used regularly, or a business might have an accountant that was a \nfrequent consultant without creating an employer-employee relationship.  This factor does not favor \neither party under these facts.  \n \n(7) A worker performing a service has hours set by the person for whom a service is performed; \n \nClaimant said he did occasionally remain at a job site after respondent left, but he called to \nreport his time to Mr. Tavarez, which would be consistent for an employee rather than an independent \ncontractor.  \n(8) A worker is required to devote substantially full time to the business of the person for whom a service is performed, \nindicating the person for whom a service is performed has control over the amount of time the worker spends working and \nby implication restricts the worker from obtaining other gainful work; \n \n In examining claimant’s tax returns from 2020 to 2024, I note that the only income claimant \nreported was from JT Handyman, and the most money he reported in any particular year was in 2023 \nin the amount of $11679.00. Assuming claimant was making $15 per hour, that would mean he worked \nonly 778 hours for the year. That is hardly full time, which would mean claimant could have worked \nfor others on days he was not with Mr. Tavarez. Whether or not he engaged in other work is irrelevant; \nI find this factor favors JT Handyman.  \n\nDelgado-Miranda-H406506 \n10 \n \n \n(9)(A) The work is performed on the premises of the person for whom a service is performed, or the person for whom a \nservice is performed has control over where the work takes place. \n(B) A person for whom a service is performed has control over where the 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 time; or \n(iii) Require that the work be done at a specific place, especially if the work could be performed elsewhere; \n \nMr. Tavarez lined up the jobs and told claimant where they were working on a given day.  \n \n(10) A worker is required to perform services in the order or sequence set by the person for whom a service is performed \nor the person for whom a service is performed retains the right to set the order or sequence;   \n \nMr. Tavarez would direct claimant on what he wanted done at the job site on each day.  \n \n(11) A worker is required to submit regular oral or written reports to the person for whom a service is performed; \n \nThere were no reports required other than the hours worked, and no reason there would need \nto be such, since Tavarez was on the jobsite with claimant.  \n(12) A worker is paid by the hour, week, or month except when he or she is paid by the hour, week, or month only as \na convenient way of paying a lump sum agreed upon as the cost of a job; \n \nClaimant testified he was paid hourly.  There were no bids or invoices submitted into evidence \nthat I would expect from an independent contractor.  \n(13) A person for whom a service is performed pays the worker’s business or traveling expenses; \n \nClaimant testified that he was occasionally given gas money, but I believe the way the parties \nhandled travel was that claimant went directly to the job site if it was closer than driving first to JT \nHandyman to begin the day.   \n(14) A person for whom a service is performed provides significant tools and materials to the worker performing services;   \n \nClaimant testified that he carried a pry bar in his truck.  That is hardly a significant number of \ntools.    As  for  materials,  there  was  no testimony  that  claimant  provided  such.  An  independent \ncontractor would include the cost of materials into his bid for services.  \n(15) A worker invests in the facilities used in performing the services; \n\nDelgado-Miranda-H406506 \n11 \n \n \nThis has no application to the type of work involved in this matter.  \n(16) A worker realizes a profit or suffers a loss as a result of the services performed that is in addition to the profit or \nloss ordinarily realized by an employee; \n \nThis  section  highlights  a  major  difference  between  an  employee  and  an  independent \ncontractor.  The  latter  can  underbid  a  job,  see  raw  materials  skyrocket  in  price  after  a  bid  is  made, \nsuffer losses from theft, etc. all of which would cause a loss. The way claimant was paid in this case \nput no risk of loss on him.  At the same time, the only way for claimant to increase the money he \nreceived was to work more hours.   \n(17) A worker performs more than de minimis services for more than one (1) person or firm at the same time, unless \nthe persons or firms are part of the same service arrangement; \n \nAs  I  said  above, I  suspect  the  claimant  was  working  more  frequently  than  his  tax  records \nindicate.  However, speculation and conjecture, even if plausible, cannot take the place of proof. Ark. \nDep’t of Corrections v. Glover, 35 Ark. App. 32, 812 S.W.2d 692 (Ark. App. 1991), and I therefore cannot \nfind this supports respondent’s position.  \n(18) A worker makes his or her services available to the general public on a regular and consistent basis; \nAn independent contractor looking for remodeling work or fencing jobs would have his or \nher  information  on  social  media,  have  a  number  in  the  telephone  book,  have  business  cards  and \nletterhead,  and  other  indicia  of  being  in  business  for  the  general  public  to  contact  to  engage  those \nservices. Tavarez presented no evidence that the general public would know to contact claimant for \nhome repair services.  \n(19) A person for whom a service is performed retains the right to discharge the worker; and \n(20) A worker has the right to terminate the relationship with the person for whom a service is performed at any time \nhe or she wishes without incurring liability. \n \n These  final  two  will  be  considered  together.  The  right  to  discharge  a  worker  is  a  factor \nindicating that the worker is an employee and the person possessing the right is an employer. Likewise, \n\nDelgado-Miranda-H406506 \n12 \n \n \nif  a  worker  has  the  right  to  end  his  or  her  relationship  with  the  person  for whom  the services  are \nperformed whenever he or she wishes without incurring liability, that factor indicates an employer-\nemployee relationship.  Mr. Tavarez was free to end the relationship with claimant at any time, and \nclaimant could likewise determine he no longer wanted to work for JT Handyman.   \n          After  evaluating  all  the  factors  contained  in  Ark.  Code.  Ann  §11-1-204,  I  find  the  evidence \noverwhelmingly supports the finding that the claimant was an employee of JT Handyman on the date \nof  his  injury and  not  an  independent  contractor.  I  saw  how  the  checks  and  tax  documents  were \ndesignated by JT Handyman, but if the relationship of employer and employee exists, the designation \nor  description  of  the  relationship  by  the  parties  as  anything  other  than  employer  and  employee  is \nimmaterial.\n5\n If such a relationship exists, as I am convinced it does in this case, it is of no consequence \nthat the employee is designated as an independent contractor by the employer. Thus, respondent has \nfailed to meet his burden of proving that the Commission does not have jurisdiction because claimant \nwas an independent contractor. \nHaving determined that claimant was an employee, I now turn to respondent’s contentions in \nthe prehearing order that denied claimant was injured in the course of his employment.  At the hearing, \nhe clarified  that  he  believed the “going and coming rule” would bar this claim.  Although  I  have \ndetermined that claimant was an employee, for an accidental injury to be compensable, it must arise \nout  of  and  in  the  course  of  employment.  Ark.  Code  Ann.  §11-9-102(4)(A)(i)  (Repl.  2012).  A \ncompensable injury does not include an injury incurred at a time when employment services were not \nbeing  performed.  Ark.  Code  Ann.  §11-9-102(4)(B)(iii).  An  employee  is  performing  employment \nservices when he or she is doing something that is generally required by his or her employer. Cont’l \n \n5\n “Many employers mistakenly think as long as workers are given a W-2 or a 1099 at the end of the year, they are \nwithin the law. This is not true.” https://dws.arkansas.gov/workforce-services/employers/worker-misclassification/ \n\nDelgado-Miranda-H406506 \n13 \n \n \nConstr. Co. v. Nabors, 2015 Ark. App. 60, 454 S.W.3d 762. The test used to determine is whether the \ninjury  occurred  within  the  time  and  space  boundaries  of  the  employment  when  the  employee  was \ncarrying out the employer’s purpose or advancing the employer’s interest, either directly or indirectly. \nPifer v. Single Source Transp., 347 Ark. 851, 69 S.W.3d 1 (2002). Moreover, whether an employee was \nperforming  employment  services  within  the  course  of  employment  depends  on  the  particular  facts \nand circumstances of each case. Centers for Youth & Families v. Wood, 2015 Ark. App. 380, 466 S.W.3d \n422. \nClaimant had driven his personal truck to the Tavarez home to begin the workday.  He had \ndriven a JT Handyman truck to the jobsite and was returning it to end his workday.  Driving the truck \nback was part of his job, and he was thus advancing his employer’s interest.  Claimant was carrying \nout the express and immediate instructions of his employer, doing something specifically required by \nhis employer at the time of the accident, and therefore his claim is not barred by the “going and \ncoming” rule, see Moncus v. Billingsley Logging, 366 Ark. 383, 235 S.W.3d 877 (2006). \nFurther, respondent denied claimant had shown objective findings of an injury.  To prove a \ncompensable  injury,  the  claimant  must  establish  by  a  preponderance  of  the  evidence:  (1)  an  injury \narising out of and in the course of employment; (2) that the injury caused internal or external harm to \nthe  body  which  required  medical  services  or resulted  in  disability  or  death;  (3)  medical  evidence \nsupported by objective findings, as defined in Ark. Code Ann. § 11-9-102(16) establishing the injury; \nand  (4)  that  the  injury  was  caused  by  a  specific  incident  and  identifiable  by  time  and  place  of \noccurrence.   If   the   claimant   fails   to   establish   any   of   the   requirements   for   establishing   the \ncompensability of the claim, compensation must be denied. Mikel v. Engineered Specialty Plastics, 56 Ark. \nApp. 126, 938 S.W.2d 876 (1997). \n The first and fourth elements are clearly established, as claimant’s credible testimony identified \n\nDelgado-Miranda-H406506 \n14 \n \n \nthe motor vehicle accident of August 8, 2024, as the time and place of his injuries.  The physician that \ntreated  claimant  at  the  Community  Clinic began  a  course  of  conservative  treatment,  including \nmedication  and physical  therapy,  but initially  ordered  only  X-rays  as  a  diagnostic  tool.    Eventually, \nclaimant received an MRI of his thoracic spine on December 20, 2024, with the following impression: \n“There  are  multiple  exterior  disc  bulges at  T2-T3,  T3-T4 and T7-T8. No  canal  stenosis  identified. \nThere is a central disc protrusion at T8-T9, resulting in mild canal stenosis. The neural foramina are \npatent  at  this  level.” The  MRI  of claimant’s left shoulder\n6\n on April 11, 2025, revealed a “partial \nintrasubstance  tear  of  the  distal  supraspinatus  tendon.  Fluid  along  the  superior  margin  of  the \nsupraspinatus muscle.”  As for the neck injury, there has not yet been an MRI on claimant’s cervical \nspine, but the x-ray taken on August 12, 2024, revealed: “Straightening of the normal spine lordosis \nmay reflect muscular guarding or spasm” Claimant’s course of physical therapy included treatment for \nhis neck.  While I was not provided with any records showing the neck being treated in 2025, it was \npart of the original injury.  \n In  his  summation  after  the  testimony,  respondent  maintained  the  connection  between  the \naccident and the diagnoses months later made the connection tenuous. However, respondent is in no \nposition to complain about the length of time it took for claimant’s neck, upper back and left shoulder \nconditions to be fully diagnosed. These objective findings were delayed because JT Handyman failed \nto have the required workers’ compensation coverage for his employees, which includes prompt and \nproper  medical  care be provided  to  an  injured  worker. The  medical  records submitted contain  the \nnecessary objective findings of work-related injury sufficient for claimant to meet his burden of proof \n \n6\n Respondent pointed out that the physical therapy record of September 18, 2024, mentioned a diagnosis on claimant’s \nright shoulder.  That appears to be a coding error, as M25.511 is for the right shoulder and M25.512 is for the left \nshoulder. https://icdlist.com/icd-10/M25.11#specific-coding. The  portion  of  the  record  that would  have  been \ncomposed  by  the  therapist  did  not  specify which  shoulder  she  treated.  I  did  not  see  that Dr.  Servy specifically \nmentioned which shoulder she was treating until her January 8, 2025, office note.     \n\nDelgado-Miranda-H406506 \n15 \n \n \non this issue.  \n Claimant requested temporary total disability payments from August 9, 2024, to a date to be \ndetermined.  He did not specify if a specific injury or the combination of injuries caused him to be \nunable to work.  However, injuries to the neck, left shoulder and thoracic spine are all unscheduled \ninjuries; in  order  to  be  entitled  to  temporary  total  disability  benefits  for  an  unscheduled  injury,  the \nclaimant must prove by a preponderance of the evidence that he remains within his healing period \nand that he suffers a total incapacity to earn wages. Arkansas State Highway & Transportation Department \nv. Breshears, 272 Ark. 244, 613 S.W. 2d 392 (1981).  Because this matter was not handled by a claims \nadjuster as a work-related injury, claimant’s doctor was not asked to express an opinion on claimant’s \nability to work or to provide restrictions for him until April 18, 2025, at which time she restricted his \nability to lift, push or pull more than five pounds for the injury to his left shoulder.  Since I believe \nthe motor vehicle accident was the cause of the torn rotator cuff, the failure of the treating physician \nto specifically restrict claimant’s use of his shoulder before April 18, 2025, does not mean he had no \nsuch limitations before that date.  He clearly remained in his healing period at the time of the hearing.  \nIn Farmers Coop. v. Biles, 77 Ark. App. 1, 69 S.W.3d 899 (2002), the Arkansas Court of Appeals wrote: \n\"If, during the period while the body is healing, the employee is unable to perform remunerative labor \nwith  reasonable  consistency  and  without  pain  and  discomfort,  his  temporary  disability  is  deemed \ntotal.\" Given the nature of claimant’s work, I do not believe he could have performed with one arm \nany type of labor from August 9, 2024, through the date of the hearing, and therefore the left shoulder \ninjury alone would be sufficient for claimant to meet his burden of proof as to his claim for temporary \ntotal disability benefits from August 9, 2024, to a date to be determined.      \n \n \n\nDelgado-Miranda-H406506 \n16 \n \n \nORDER \n \nRespondent is directed to pay benefits in accordance with the findings of fact set forth herein \nthis Opinion. \n \nAll accrued sums shall be paid in lump sum without discount, and this award shall earn interest \nat the legal rate until paid, pursuant to Ark. Code Ann. § 11-9-809. \n \nPursuant to Ark. Code Ann. § 11-9-715, the claimant's attorney is entitled to a 25% attorney's   \nfee on the indemnity benefits awarded herein. This fee is to be paid one half by respondent and one \nhalf by the claimant. \n \nIf not already paid, respondent shall pay the court reporter's fee for preparation of the record \nin this case. \n \nAll issues not addressed herein are expressly reserved under the Act. \n \n IT IS SO ORDERED. \n                                                                                              \n_______     \n JOSEPH C. SELF \nADMINISTRATIVE LAW JUDGE","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H406506 ELISEO DELGADO-MIRANDA, EMPLOYEE CLAIMANT J T HANDYMAN & LAWNCARE, LLC, UNINSURED EMPLOYER RESPONDENT OPINION FILED OCTOBER 2, 2025 Hearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Springdale, Washington County, Arkansas. Claimant represent...","fetched_at":"2026-05-19T22:35:09.143Z","links":{"html":"/opinions/alj-H406506-2025-10-02","pdf":"https://www.labor.arkansas.gov/wp-content/uploads/DELGADO_MIRANDA_ELISEO_H406506_20251002.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}