{"id":"full_commission-G904652-2024-12-13","awcc_number":"G904652","decision_date":"2024-12-13","opinion_type":"full_commission","claimant_name":"Nela Jikatake","employer_name":"Cargill Meat Products","title":"JIKATAKE VS. CARGILL MEAT PRODUCTS AWCC# G904652 December 13, 2024","outcome":"granted","outcome_keywords":["granted:1"],"injury_keywords":["shoulder","rotator cuff","sprain","repetitive","back"],"pdf_url":"https://www.labor.arkansas.gov/wp-content/uploads/Jikatake_Nela_G904652_20241213.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Jikatake_Nela_G904652_20241213.pdf","text_length":34891,"full_text":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n \nCLAIM NO.  G904652  \n \nNELA JIKATAKE, \nEMPLOYEE \n \nCLAIMANT \nCARGILL MEAT PRODUCTS,  \nEMPLOYER \n \nRESPONDENT \nSEDGWICK CLAIMS MANAGEMENT SVCS., INC, \nINSURANCE CARRIER/TPA \nRESPONDENT \n  \n      \nOPINION FILED DECEMBER 13, 2024 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE EVELYN E. BROOKS, Attorney \nat Law, Fayetteville, Arkansas. \n \nRespondents represented by the HONORABLE R. SCOTT ZUERKER, \nAttorney at Law, Fort Smith, Arkansas. \n \nDecision of Administrative Law Judge:  Reversed. \n \n \n OPINION AND ORDER \nThe claimant appeals an administrative law judge’s opinion filed \nSeptember 13, 2023.  The administrative law judge found that the claimant \nfailed to prove she was entitled to temporary total disability benefits from \nJune 21, 2022 through a date yet to be determined.  The administrative law \njudge found that the claimant proved she was entitled to temporary total \ndisability benefits from April 13, 2023 through April 19, 2023.  After \nreviewing the entire record de novo, the Full Commission finds that the \nclaimant proved she was entitled to temporary total disability benefits \n\nJIKATAKE - G904652  2\n  \n \n \nbeginning June 21, 2022 and continuing through a date yet to be \ndetermined.     \nI.  HISTORY \n The record indicates that Nela Jikatake, now age 54, became \nemployed with the respondents, Cargill, on October 19, 2015.  The \nclaimant’s Job Title was “Debone – Breast Trim.”  The parties stipulated \nthat the claimant “sustained a compensable injury to her left shoulder” on \nJune 11, 2019.  The claimant testified on direct examination:   \n  Q.  And what happened that day? \nA.  I was walking.  I hit my toe on a pallet, my feet on a pallet.  \nIt was broken and I tripped.... \nQ.  During that time after you fell, did you have any trouble \ndoing your work? \nA.  Yes. \nQ.  What caused you problems doing your work after you fell? \nA.  It was extreme pain and when I move it, it was just too \nmuch. \nQ.  Did you continue to work, though, up until you saw the \ndoctor? \nA.  Yes.     \n \n An MRI of the claimant’s left shoulder was taken in August 2019 with \nthe impression, “1.  Mild tendinosis of the rotator cuff.”  An MRI of the \nclaimant’s left shoulder was taken in September 2019 with the impression, \n“1.  Tendinopathy of the supraspinatus and infraspinatus.”   \nDr. John Heim reported on or about September 20, 2019, “WC new \npt with left shoulder pain from a fall on 06/11/2019.  Since the injury she has \nhad 6 visits of therapy but has not helped.  She also had MRI done and we \n\nJIKATAKE - G904652  3\n  \n \n \nhave images with report....She is not on work restrictions currently, she is \nno longer working.”  Dr. Heim assessed “1.  Adhesive capsulitis of left \nshoulder.”  Dr. Heim noted, “Nela is scheduled for shoulder surgery on \n09/23/2019.  She may return to work on 09/24/2019 with the following \nrestrictions:  no use of left arm for the next 2 weeks.”   \nDr. Heim performed surgery on September 23, 2019:  “Arthroscopy \nleft shoulder with lysis and resection of adhesions as well as manipulation \nunder anesthesia.”  The post-operative diagnosis was “Status post \narthroscopic adhesion lysis and manipulation under anesthesia left \nshoulder.”  The claimant testified that she did not benefit from surgery \nperformed by Dr. Heim.       \nThe claimant began treating with Dr. Christopher A. Arnold on \nJanuary 21, 2020.  Dr. Arnold assessed “Sprain of left rotator cuff \ncapsule[.]”  Dr. Arnold assessed the following Work Status:  “No lifting, \npushing or pulling greater than 25 lbs.  No repetitive overhead.”   \nDr. Arnold planned on February 4, 2020, “Your exam shows a \nprobable cuff tear and adhesive capsulitis.  We need to obtain an MRI to \nevaluate the extent of the tear and get a plan.”   \nAn MRI of the claimant’s left shoulder was taken on February 19, \n2020 with the following impression: \n1.  No rotator cuff tendon tear, tendon retraction, or muscle \natrophy. \n\nJIKATAKE - G904652  4\n  \n \n \n 2.  Intact biceps labral complex. \n3.  Very mild increased signal within the conjoined tendon of \nthe rotator cuff is present.  This may represent very minimal, \nresidual tendinosis but is much improved compared to \n9/6/2019.   \n \n Dr. Arnold performed a Joint Injection/Aspiration on March 3, 2020.  \nIt was noted on March 3, 2020, “She is no left arm duty.”  Dr. Arnold \nreported on April 7, 2020: \nHISTORY:  Nela Jikatake had a workers’ compensation injury.  \nShe had an arthroscopy and lysis of adhesions.  It offered no \nrelief.  She was seen in my office.  I thought she had findings \nconsistent with a high-grade partial tear of the cuff.  I gave her \na subacromial injection.  This offered no relief.... \nRADIOGRAPHS:  I reviewed her MRI.  She has a high-grade \npartial tear of the suprapinatus.   \nPLAN:  She has failed therapy, anti-inflammatories, \narthroscopy, and subacromial injection.  I think the next step \nwould be an arthroscopy and possible cuff repair.  I think it is \nreasonable, given the profound cuff weakness, her failure to \ntherapy, anti-inflammatories, injection, and arthroscopy and \nthe MRI findings.  At the current time, I would recommend \narthroscopy, possible cuff repair.  She agrees with this plan.  \nAt the current time, no left-handed duty until we get this \napproved.   \n \n Dr. Heim reported on May 13, 2020: \nI have reviewed Ms. Jikatake’s medical records again to offer \nyou my best assessment of her medical status based on my \nlast visit with her. \nThe claimant developed an adhesive capsulitis of her left \nshoulder resulting in arthroscopic adhesiolysis and \nmanipulation under anesthesia.  She received post-operative \nphysical therapy and despite inconsistent participation her \nresults were good.  She was released at MMI and was \nprovided an impairment rating on 10/30/19.  As often is the \ncase, with this diagnosis, patients rarely recover to their pre-\ninjury state.  This is the purpose of the impairment rating. \n\nJIKATAKE - G904652  5\n  \n \n \nIt is my medical opinion that Ms. Jikatake does not need \nfurther treatment or diagnostic studies which is why I released \nher at maximum medical improvement. \n \n A pre-hearing order was filed on March 31, 2021.  The parties \ncontended, “The claimant contends she is entitled to the additional medical \ntreatment as recommended by Dr. Chris Arnold.  Claimant reserves all \nother issues.  The respondents contend this claim was accepted as \ncompensable and benefits were paid.  Claimant was provided treatment for \nthis injury, which resulted in Dr. Heim performing an arthroscopic procedure \non her left shoulder.  She was released from his care at MMI on November \n30, 2019 with a 4% whole body impairment.  The rating was paid out to the \nclaimant via a check for $4500 in November of 2019.  Respondents \ncontend claimant’s voluntary resignation from employment with Cargill [on] \nJuly 16, 2019 results in claimant not being entitled to temporary total \ndisability benefits beyond those already paid.  Respondents have provided \nclaimant with all reasonably necessary evaluation and treatment and \nclaimant is not entitled to additional benefits.”   \n The parties agreed to litigate the following issue:  “1.  Claimant’s \nentitlement to additional medical treatment recommended by Dr. Arnold.”   \n A hearing was held on May 13, 2021.  The claimant testified that she \nwanted to undergo surgery recommended by Dr. Arnold.  The respondents’ \nattorney cross-examined the claimant: \n\nJIKATAKE - G904652  6\n  \n \n \n  Q.  And you returned to work after the injury.  Correct? \n  A.  Yes, I did go back to work. \nQ.  How long would you say you continued to work after the \ninjury? \nA.  It was a while and then I went and asked if I could quit \nbecause I was in pain.   \n  Q.  So it was your decision to leave Cargill? \nA.  Yes, it was my decision because I was in a lot of pain, but \nwhen I kept going back and telling them, it was like they don’t \ncare.... \nQ.  And when you had surgery by Dr. Heim, were you still \nworking for Cargill? \nA.  No, I wasn’t because I was really in pain at that time.   \nQ.  So Cargill continued to provide medical treatment for you \neven though you were no longer working there? \nA.  Yes. \nQ.  And they provided medical care up until the time your \ndoctor said that you were at maximum medical improvement.  \nCorrect? \nA.  Yes.  It was after the doctor said that, then they stopped \nhelping me.... \nQ.  And have you applied for any employment since leaving \nCargill? \nA.  No. \nQ.  And why not? \nA.  Because I still don’t feel better.  My hand is not better – not \nmy hand, but my shoulder.  It is still not perfect.  I cannot lift \nup anything that is heavy.   \nQ.  So, there is no type of work that you think that you can do \nin your current condition? \nA.  Yes.... \nQ.  So you are saying that after the accident, you were \ncompletely unable to use your left hand? \nA.  Yes.  Yes.  That it what I have been saying from the \nbeginning.   \nQ.  Okay.  And after the surgery, you were still completely \nunable to use your left hand? \nA.  Yes.  Yes, it is still and I can’t lift up anything heavy with \nmy hand.  And also when I lay on it, it also hurts.   \n \n\nJIKATAKE - G904652  7\n  \n \n \n An administrative law judge filed an opinion on May 26, 2021.  The \nadministrative law judge found, “2.  Claimant has failed to meet her burden \nof proving by a preponderance of the evidence that she is entitled to \nadditional medical treatment in the form of surgery by Dr. Arnold.”   \n Dr. Sheldon Ricklon noted on August 2, 2021 that the claimant “has \napplied for work at George’s to be on the line but asking for a letter \n[requesting] some restrictions given the issue with her left shoulder.  Still \nwith pains....Unable to reach above her head secondary to pain and very \nrestricted ROM of her left shoulder.”  Dr. Ricklon noted on September 8, \n2021, “Still with [shoulder] discomfort and limited ROM esp reaching \noverhead.  Wrote letter to employer but states it was not approved.”     \n In an opinion filed October 14, 2021, a majority of the Full \nCommission reversed the administrative law judge’s May 26, 2021 decision.  \nThe Full Commission found that the claimant “has proven by a \npreponderance of the evidence that she is entitled to additional medical \ntreatment in the form of an arthroscopic procedure as recommended by Dr. \nArnold.”  The parties have stipulated that the Full Commission’s October 14, \n2021 opinion was “final.” \n The claimant testified on direct examination: \nQ.  Did Dr. Arnold recommend additional surgery for your left \nshoulder? \n  A.  Yes. \n  Q.  Were you able to have that surgery? \n\nJIKATAKE - G904652  8\n  \n \n \n  A.  No.... \n  Q.  Have you been able to see Dr. Arnold again? \n  A.  No. \n  Q.  Did you finally get a new doctor, Dr. Dougherty? \n  A.  Yes.   \n \n Dr. Christopher P. Dougherty examined the claimant on June 20, \n2022: \nShe is here today as a new patient for continued pain in her \nleft shoulder s/p work accident in June 2019.  Her MRI of the \nleft shoulder shows a split tear in biceps tendon.  Her exam is \nconsistent with biceps tendinitis and adhesive capsulitis.  She \nhas failed conservative care of injections and physical therapy \nand over 3 years of symptoms.  She needs to be set up for a \nleft shoulder arthroscopy with MUA, lysis of adhesions and \nbiceps tenotomy....Once approved we will get her set up for \nsurgery and will see her back after for post operative care.   \n \n Dr. Dougherty corresponded with the claimant’s attorney on August \n18, 2022: \nIn response to your question addressed in your letter dated \nJuly 15, 2022, yes the bicep tear is related to her injury when \nshe fell on her outstretched arm.  Biceps tenotomy is \nindicated.  If the bicep is unstable due to the rotator cuff tear, \nit will not be known until the time of surgery. \nBiceps tenotomy means cutting off one tendon and not \nreattaching it, allowing it to heal to the humerus over a few \nweeks.  The biceps will still function well after tenotomy, but \nthere may be a change in the appearance of the arm with \nsome flattening of the biceps.   \n \n A pre-hearing order was filed on September 13, 2022.  The claimant \ncontended, “The claimant contends she is entitled to surgery for her \ncompensable shoulder injury as recommended by her authorized treating \nphysician, Dr. Dougherty.  Dr. Arnold had recommended surgery, which \n\nJIKATAKE - G904652  9\n  \n \n \nwas awarded by the Full Commission.  Dr. Arnold now refuses to treat her \nas a workers’ compensation case.  Therefore, she requested a change of \nphysician to Dr. Dougherty, and he has recommended surgery for her work-\nrelated condition.  Claimant reserves all other issues.”   \n The respondents contended, “This claim came before the \nCommission for a hearing on May 13, 2021.  It was the Opinion of the ALJ \nthat Claimant failed to meet her burden of proving by a preponderance of \nthe evidence that surgery recommended by Dr. Arnold was reasonable and \nnecessary medical treatment for her compensable left shoulder injury.  That \ndecision was appealed by the Claimant to the Full Commission.  The Full \nCommission reversed and awarded the Claimant the ‘additional medical \ntreatment in the form of an arthroscopic procedure as recommended by Dr. \nArnold.’  Dr. Arnold had recommended a surgical procedure consisting of a \nsubacromioplasty, distal clavicle excision and a rotator cuff repair based \nupon his [identification] of a ‘high-grade partial tear of the supraspinatus’ on \nthe MRI performed on 2/19/2020.  When Claimant attempted to return to Dr. \nArnold to schedule the surgery, Dr. Arnold refused to perform the surgery.  \nA second Change of Physician was authorized and on June 20, 2022, \nClaimant was evaluated by Dr. Dougherty.”   \n The respondents contended, “Dr. Dougherty states in his report that \n‘her MRI of the left shoulder shows a split tear in biceps tendon.’  As it was \n\nJIKATAKE - G904652  10\n  \n \n \nthe first and only visit to Dr. Dougherty, he had not ordered a new MRI, \nconsequently, he must have been utilizing the MRI of 2/19/2020 to come to \nthis conclusion.  It had been the contention of the Respondents previously \nthat when Dr. Marvin interpreted the MRI he noted ‘no rotator cuff tear, \ntendon retraction, or muscle atrophy’ which was contradicted by Dr. \nArnold’s reading.  Additionally, Dr. Marvin wrote in his report: \nThe long head of the biceps tendon rests normally in the \nbicipital groove.  Intra-articular biceps tendon is normal in \nappearance...Intact biceps labral complex.” \n \n The respondents contended, “Dr. Dougherty’s assessment now \nsupports Dr. Marvin’s interpretation of the rotator cuff tendons showing no \ntear and contradicts the opinion of Dr. Arnold in that Dr. Doughtery does not \nidentify a tear in the supraspinatus, does not recommend a distal clavicle \n[resection] nor a rotator cuff repair.  Instead, Dr. Dougherty contradicts both \nDr. Marvin and Dr. Arnold by identifying a bicep tendon tear.”   \n The respondents contended, “It is the contention of the Respondents \nthat the Full Commission authorized a surgical procedure consisting of a \nsubacromioplasty, distal clavicle excision and a repair of Claimant’s left \nsupraspinatus as recommended by Dr. Arnold, basing much of their \nOpinion in the fact that Dr. Arnold ‘believe[d] [this procedure] is reasonable \nand necessary.’  Dr. Dougherty, Claimant’s new treating physician does not \nrecommend the procedure the Full Commission found to be reasonable and \n\nJIKATAKE - G904652  11\n  \n \n \nnecessary, but instead believes a completely different procedure is needed.  \nThe procedure recommended by Dr. Dougherty is not the surgery awarded \nby the Commission, therefore, the Respondents contend that Claimant is \nnot entitled to the surgery proposed by Dr. Dougherty.”   \n The parties agreed to litigate the following issue:  “1.  Claimant’s \nentitlement to additional medical treatment in the form of surgery as \nrecommended by Dr. Dougherty.” \n A hearing was held on November 9, 2022.  The claimant testified \nthat she wanted to  undergo surgery recommended by Dr. Dougherty, \n“because I want to feel much better.”  The claimant testified with regard to \nher left shoulder, “There is pain in it.  Every now and then there will be pain \nin it and if I move it frequently, it will be like a stabbing pain.”       \n An administrative law judge filed an opinion on November 30, 2022.  \nThe administrative law judge found, \"2.  Claimant has met her burden of \nproving by a preponderance of the evidence that she is entitled to additional \nmedical treatment in the form of surgery as recommended by Dr. \nDougherty.”  The parties have stipulated that the administrative law judge’s \nNovember 30, 2022 opinion was “final.” \n Dr. Dougherty performed surgery on April 13, 2023:  “1.  \nSubacromial decompression, distal clavicle resection.  2.  Arthroscopic lysis \nof adhesion.  3.  Manipulation under anesthesia.”  The pre- and post-\n\nJIKATAKE - G904652  12\n  \n \n \noperative diagnosis was “1.  Adhesive capsulitis.  2.  Biceps tendinitis.  3.  \nImpingement syndrome.  4.  Acromioclavicular joint arthritis.”   \n On April 17, 2023, Dr. Dougherty signed a Return to Work/School \nform.  Dr. Dougherty indicated that the claimant could return to work on \nApril 20, 2023 with the following Work Limitations:  “Light duty with 10lb \nlifting restriction.”   \n The claimant followed up with Dr. Dougherty on April 26, 2023: \nShe returns to the office today for her 2 week post op visit for \nsurgery that was performed on 4/13/23.  Left shoulder \narthroscopy with MUA, lysis of adhesions, subacromial \ndecompression and distal clavicle resection.  Her stitches \nwere removed today and the incisions are well healed.  She is \nstill having some pain but she is going to therapy.  She will \ncontinue with her therapy.  She is cleared to return to work on \nMonday May 1 with restrictions of light duty and no lifting \nmore than 10lbs with left upper extremity.  We will see her \nback in 4 weeks for her 6 week post op visit.   \n \n The record indicates that the claimant was provided physical therapy \nbeginning May 5, 2023.  The claimant also continued to follow up with Dr. \nDougherty.   \nA pre-hearing order was filed on June 21, 2023.  The parties \ncontended, “The claimant contends she is entitled to temporary total \ndisability from June 21, 2022 to a date yet to be determined.  Claimant \nreserves all other issues.  The respondents contend that all appropriate \nbenefits have been paid.  Respondents further contend that light duty would \nhave been available but for the fact that claimant voluntarily terminated her \n\nJIKATAKE - G904652  13\n  \n \n \nemployment with respondent employer resulting in claimant not being \nentitled to additional temporary total disability benefits.”   \n The parties agreed to litigate the following issues: \n1.  Temporary total disability benefits from June 21, 2022 \nthrough a date yet to be determined. \n2.  Attorney fee.   \n \n The respondents’ attorney examined the claimant at a deposition \ntaken August 10, 2023: \nQ.  When I looked through all of your stuff, I don’t think that \nyou have worked for Cargill since July of 2019, is that correct? \nA.  July what? \nQ.  July 19\nth\n of 2019. \nA.  That is correct.... \nQ.  Do you know why you were terminated on July 19\nth\n of \n2019? \nA.  They did not stop me.  I stopped myself because I couldn’t \ntolerate the pain.   \nQ.  And my question to you is when you got terminated, you \njust quit going to work because of the pain.  Correct? \nA.  Yes.   \nQ.  And when you stopped going, did you call them and tell \nthem you were not going? \nA.  I didn’t call them.  I told them that I wanted to resign, so \nthey gave me two weeks to resign.  I was the one that \napproached them because I couldn’t handle the pain.  I \nwanted to resign. \nQ.  Since you resigned or since your employment terminated \nwith Cargill back in July of 2019, have you worked for anyone \nelse? \nA.  After the surgery, I went back and I worked at George’s \nand it was just like two – \nTHE INTERPRETER:  Let me clarify what she means by two. \nTHE WITNESS:  But after two weeks, the pain was just too \nmuch and I couldn’t work anymore.... \nQ.  Other than that two weeks, have you worked for anyone \nelse? \n\nJIKATAKE - G904652  14\n  \n \n \nA.  None.... \nQ.  Let’s go back to when you quit at Cargill.  You where there \nfor about a month after you injured your shoulder.  Okay.   \nA.  Uh-huh.  Yes.... \nQ.  And during that period of time, was anyone treating you for \nyour shoulder? \nA.  Yes.  The nurse.   \nQ.  At Cargill? \nA.  Yes.   \nQ.  Okay.  And did Cargill – after you told them you hurt your \nshoulder, did Cargill modify your job for you? \nA.  They didn't. \nQ.  They did not? \nA.  Yes, they didn’t.  I was still at the same place.   \nQ.  Did you ask them to modify your job? \nA.  They said there was no other position available.   \nQ.  Who told you that? \nA.  I asked Shauna.  I told her that my shoulder was really not \nup to spraying the chickens with water and turning them over.   \nQ.  Who is Shauna? \nA.  My supervisor.   \n \n After a hearing, an administrative law judge filed an opinion on \nSeptember 13, 2023.  The administrative law judge found that the claimant \nfailed to prove she was entitled to temporary total disability benefits from \nJune 21, 2022 through a date yet to be determined.  The administrative law \njudge found that the claimant proved she was entitled to temporary total \ndisability benefits “from April 13, 2023, through April 19, 2023.”  The \nclaimant appeals to the Full Commission.   \nII.  ADJUDICATION \n Temporary total disability is that period within the healing period in \nwhich the employee suffers a total incapacity to earn wages.  Ark. State \n\nJIKATAKE - G904652  15\n  \n \n \nHwy. Dept. v. Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981).  “Healing \nperiod” means “that period for healing of an injury resulting from an \naccident.”  Ark. Code Ann. §11-9-102(12)(Repl. 2012).  The healing period \nis that period for healing of the injury which continues until the employee is \nas far restored as the permanent character of the injury will permit.  \nArkansas Highway & Transp. Dep’t v. McWilliams, 41 Ark. App. 1, 846 \nS.W.2d 670 (1993).  The healing period has not ended so long as treatment \nis administered for the healing and alleviation of the condition.  Mad \nButcher, Inc. v. Parker, 4 Ark. App. 124, 628 S.W.2d 582 (1982).  Whether \nan employee’s healing period has ended is a question of fact for the \nCommission.  Dallas County Hosp. v. Daniels, 74 Ark. App. 177, 47 S.W.3d \n283 (2001).   \n An administrative law judge found in the present matter, “2.  \nClaimant has failed to meet her burden of proving by a preponderance of \nthe evidence that she is entitled to temporary total disability benefits from \nJune 21, 2022 through a date yet to be determined.  Claimant has proven \nby a preponderance of the evidence that she is entitled to temporary total \ndisability benefits from April 13, 2023, through April 19, 2023.”  The Full \nCommission first notes that the administrative law judge erred as a matter \nof law in awarding temporary total disability benefits from April 13, 2023 \nthrough April 19, 2023.  Ark. Code Ann. §11-9-501(a)(1)(Repl. 2012) \n\nJIKATAKE - G904652  16\n  \n \n \nprovides, “Compensation to the injured employee shall not be allowed for \nthe first seven (7) days’ disability resulting from the injury, excluding the day \nof injury.\"  The administrative law judge’s award of seven days in the \npresent matter is not allowed in accordance with Ark. Code Ann. §11-9-\n501(a)(1)(Repl. 2012).   \n Nevertheless, it is the duty of the Full Commission to enter findings \nin accordance with the preponderance of the evidence and not whether \nthere is substantial evidence to support an administrative law judge’s \nfindings.  Roberts v. Leo Levi Hospital, 8 Ark. App. 184, 649 S.W.2d 402 \n(1983).  The Full Commission reviews an administrative law judge’s opinion \nde novo, and it is the Full Commission’s duty to conduct its own fact-finding \nindependent of that done by an administrative law judge.  Crawford v. Pace \nIndus., 55 Ark. App. 60, 929 S.W.2d 727 (1996).  The Full Commission \nenters its own findings in accordance with the preponderance of the \nevidence.  Tyson Foods, Inc. v. Watkins, 31 Ark. App. 230, 792 S.W.2d 348 \n(1990). \n The Full Commission finds in the present matter that the claimant \nproved she was entitled to temporary total disability benefits beginning June \n21, 2022 and continuing through a date yet to be determined.  The claimant \nbecame employed with the respondents in October 2015.  The parties \nstipulated that the claimant sustained a compensable injury to her left \n\nJIKATAKE - G904652  17\n  \n \n \nshoulder on June 11, 2019.  The claimant testified that she tripped and fell.  \nDr. Heim performed a left shoulder arthroscopy on September 23, 2019.  \nThe claimant testified that she did not benefit from surgery performed by Dr. \nHeim.  Dr. Arnold’s impression in January 2020 was “Sprain of left rotator \ncuff capsule.”  Dr. Arnold eventually recommended additional surgery, \nwhich treatment the respondents controverted.  After an administrative law \njudge found that the claimant was not entitled to surgery recommended by \nDr. Arnold, a majority of the Full Commission filed an opinion on October \n14, 2021 and found that Dr. Arnold’s treatment recommendation was \nreasonably necessary.  The claimant testified that she was unable to have \nsurgery recommended by Dr. Arnold, and that she therefore began treating \nwith Dr. Dougherty.   \n The claimant agreed at deposition that she had not worked for the \nrespondent-employer since July 19, 2019.  The claimant testified that she \nwas unable to effectively move her left upper extremity, without pain, \nfollowing the compensable injury to her left shoulder.  The claimant testified \nthat she attempted to return to work with the respondents for a time but was \nunable to lift objects with her left arm.  The medical evidence corroborated \nthe claimant’s testimony.  For example, Dr. Ricklon reported in August 2021 \nthat the claimant was unable to lift her left arm above her head.  The \n\nJIKATAKE - G904652  18\n  \n \n \nclaimant testified that she “stopped myself” from working for the \nrespondent-employer “because I couldn’t tolerate the pain.”   \n The respondents contend that the claimant’s “voluntary resignation” \nwas a “refusal to return to work” in accordance with Lybyer v. Springdale \nSchool District, 2019 Ark. App. 77, 568 S.W.3d 805.  In Lybyer, the Court of \nAppeals affirmed the Commission’s finding that a “voluntary resignation” in \nfact disqualified a claimant from receiving temporary total disability benefits.  \nIn the present matter, the Full Commission finds that the appellate authority \nmore applicable is Farmers Co-op v. Biles, 77 Ark. App. 1, 69 S.W.3d 899 \n(2002).  The Court of Appeals in Biles held that if, during the healing period, \nthe employee is unable to perform remunerative labor with reasonable \nconsistency and without pain and discomfort, her temporary total disability \nis deemed total.  See Pyles v. Triple F. Feeds of Texas, 270 Ark. 729, 606 \nS.W.2d 146 (Ark. App. 1980).  In the present matter, the Full Commission \nfinds that the claimant was physically unable to perform remunerative labor \nfor the respondents as a result of the compensable injury to the claimant’s \nleft shoulder.   \n Dr. Dougherty opined on June 20, 2022 that diagnostic testing of the \nclaimant showed a “split tear in biceps tendon....She needs to be set up for \na left shoulder arthroscopy with MUA, lysis of adhesions and biceps \ntenotomy.”  In their brief on appeal, the respondents agree that the claimant \n\nJIKATAKE - G904652  19\n  \n \n \nre-entered a healing period beginning June 20, 2022.  The respondents \nassert that the claimant failed to prove the “second prong” of entitlement to \ntemporary total disability benefits, that is, “incapacity to earn wages.”  The \nFull Commission finds that the claimant remained within a healing period \nand was totally incapacitated from earning wages beginning June 21, 2022 \nand continuing through a date yet to be determined.   \n After reviewing the entire record de novo, the Full Commission finds \nthat the claimant proved she was entitled to temporary total disability \nbenefits beginning June 21, 2022 and continuing through a date yet to be \ndetermined.  See Breshears, supra.  The claimant proved by a \npreponderance of the evidence that she was physically unable to perform \nremunerative labor for the respondents beginning June 21, 2022 and \ncontinuing through a date yet to be determined.  See Biles, supra.  The \nrespondents failed to prove that the claimant refused suitable employment \nin accordance with Ark. Code Ann. §11-9-526(Repl. 2012). \n The claimant’s attorney is entitled to fees for legal services in \naccordance with Ark. Code Ann. §11-9-715(a)(Repl. 2012).  For prevailing \non appeal to the Full Commission, the claimant’s attorney is entitled to an \nadditional fee of five hundred dollars ($500), pursuant to Ark. Code Ann. \n§11-9-715(b)(Repl. 2012). \n \n\nJIKATAKE - G904652  20\n  \n \n \n IT IS SO ORDERED.     \n \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner \n \n \n \nCommissioner Mayton dissents. \nDISSENTING OPINION      \n I must respectfully dissent from the Majority’s finding the claimant \nproved she is entitled to temporary total disability benefits from June 21, \n2022, to a date yet to be determined. \nOur Rules require that to prevail on a request for temporary total \ndisability benefits, the claimant must prove by a preponderance of the \nevidence that he is totally incapacitated from earning wages and remains in \nhis healing period.  Hickman v. Kellogg, Brown, and Root, 372 Ark. 501, \n277 S.W.3d 591 (2008).  \nThe healing period ends when the employee is as far restored as the \npermanent nature of his injury will permit, and if the underlying condition \ncausing the disability has become stable and if nothing in the way of \ntreatment will improve that condition, the healing period has ended.  Id.  \nThe determination of when the healing period has ended is a factual \ndetermination for the Commission.  Id. \n\nJIKATAKE - G904652  21\n  \n \n \nI. The claimant has been released to return to work by three \ntreating physicians.  She is not incapacitated from \nearning wages. \n \nThe claimant has been returned to work by three of the \nphysicians she has encountered throughout this process.  Dr. \nMarcus Heim reported the claimant “is not on work restrictions \ncurrently, she is no longer working.”  Dr. Heim expressed \nreservations about the claimant’s motivation, stating, “[s]he does not \nseem terribly motivated so I am a little apprehensive about this,” but \nopined there was no other option to treat the claimant.   \nOn September 23, 2019, Dr. Heim opined the claimant “may \nreturn to work on 09/24/2019 with the following restrictions: no use of \nleft arm for the next 2 weeks.”  \nOn January 21, 2020, Dr. Christopher Arnold assessed a work \nrestriction of “[n]o lifting, pushing or pulling greater than 25 lbs.  No \nrepetitive overhead.”   \nThe claimant’s testimony reflects her treating physician, Dr. \nChristopher Dougherty returned her to work with restrictions \nfollowing her April 13, 2023 surgery.  At her deposition, the claimant \nhad the following exchange: \nQ: (by Mr. Zuerker) Up \nuntil you saw Dr. \nDougherty, did any \ndoctor have you on \n\nJIKATAKE - G904652  22\n  \n \n \nany kind of \nrestrictions? \n \nA: What kind of \nrestrictions? \n \nQ: Don’t’ work or do \ncertain things at work. \n \nA: No, no one said that. \nOnly he said that I \ncould work. \n \nQ: Did Dr. Dougherty tell \nyou you should work? \n \nA: Yes, he said that I \ncould work, but I \nshouldn’t carry \nanything more than \nfive pounds and that I \nshould use my right \nhand more than my \ninjured hand. \n \nQ: And after he told you \nthat, did you look for \nany work? \n \nA: No, I didn’t. \n \nDr. Dougherty opined on five occasions the claimant was physically \nable to return to work with light duty restrictions beginning April 20, 2023.   \nOn May 26, 2023, Dr. Dougherty prescribed “10 work hardening \nvisits . . . to help her transition back to work. . . At this time she is cleared to \nreturn to work, with lifting restriction of no more than 10 lbs.”  Dr. Dougherty \n\nJIKATAKE - G904652  23\n  \n \n \nincreased the claimant’s lifting restriction to twenty pounds on August 9, \n2023. \nDr. Dougherty clearly intended for the claimant to return to work and \nencouraged her to do so on numerous occasions.  Her previous treating \nphysicians clearly agreed  she was capable of doing so.  The only party \nlimiting the claimant’s ability to work is herself with her self-serving \ntestimony.  \nWe expect workers to make a “good-faith effort to return to the work \nforce following an injury,\" and the claimant has failed to do so in this case. \nFarmers Co-Op v. Biles, 77 Ark. App. 1, 69 S.W.3d 899 (2002).  The \nclaimant’s refusal to return to the workforce despite all evidence she could \ndo so does not entitle her to indefinite disability benefits.  \nII. The claimant forfeited any entitlement to temporary total \ndisability benefits when she resigned her position from \nCargill. \n \nOur rules provide:  \n \n[i]f any injured employee refuses \nemployment suitable to his or her \ncapacity offered to or procured for \nhim or her, he or she shall not be \nentitled to any compensation \nduring the continuance of the \nrefusal, unless in the opinion of the \nWorkers' Compensation \nCommission, the refusal is \njustifiable. \n \n\nJIKATAKE - G904652  24\n  \n \n \nHere, the claimant voluntarily terminated her employment in July \n2019, prior to undergoing surgery.  The claimant testified, “I told them that I \nwanted to resign... I was the one that approached them because I couldn’t \nhandle the pain. I wanted to resign.”  \nCargill’s workers’ compensation coordinator, Jennifer Ponder, stated \nthe claimant would have been offered light duty work if she had not \nresigned.  Ms. Ponder also testified that since her resignation in 2019, the \nclaimant has never come back and asked Cargill for any light duty work.  \nThe claimant simply has no interest in returning to work despite the \nefforts of numerous doctors and physical therapists.  Her own self-limiting \nbehavior cannot be the sole basis for an indefinite award, and we should \ncarefully examine the claimant’s credibility in this matter, as her testimony is \nclearly contradicted by the weight of the medical evidence. \nAccordingly, for the reasons set forth above, I respectfully dissent. \n  \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner","preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. G904652 NELA JIKATAKE, EMPLOYEE CLAIMANT CARGILL MEAT PRODUCTS, EMPLOYER RESPONDENT SEDGWICK CLAIMS MANAGEMENT SVCS., INC, INSURANCE CARRIER/TPA RESPONDENT OPINION FILED DECEMBER 13, 2024","fetched_at":"2026-05-19T22:29:44.729Z","links":{"html":"/opinions/full_commission-G904652-2024-12-13","pdf":"https://www.labor.arkansas.gov/wp-content/uploads/Jikatake_Nela_G904652_20241213.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/"}}