{"id":"full_commission-H005445-2025-09-29","awcc_number":"H005445","decision_date":"2025-09-29","opinion_type":"full_commission","claimant_name":"Gerardo Munoz","employer_name":"Azz Galvanizing, Inc","title":"MUNOZ VS. AZZ GALVANIZING, INC. AWCC# H005445 September 29, 2025","outcome":"denied","outcome_keywords":["remanded:1","dismissed:1","denied:5"],"injury_keywords":["cervical","neck","shoulder","sprain","rotator cuff"],"pdf_url":"https://www.labor.arkansas.gov/wp-content/uploads/Munoz_Gerardo_H005445_20250929.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Munoz_Gerardo_H005445_20250929.pdf","text_length":21015,"full_text":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n \nCLAIM NO.  H005445 \n \nGERARDO PEREZ MUNOZ, \nEMPLOYEE \n \nCLAIMANT \nAZZ GALVANIZING, INC.,  \nEMPLOYER \n \nRESPONDENT \nAMERICAN ZURICH INSURANCE CO., \nINSURANCE CARRIER/TPA \nRESPONDENT \n  \n      \nOPINION FILED SEPTEMBER 29, 2025  \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 KAREN H. McKINNEY, \nAttorney at Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Affirmed as Modified. \n \n \n OPINION AND ORDER \nThe claimant appeals an administrative law judge’s opinion filed April \n7, 2025.  The administrative law judge found that res judicata barred \ncompensability of an injury to the claimant’s cervical spine.  The Full \nCommission finds that the claimant did not prove by a preponderance of the \nevidence that he sustained a compensable injury to his neck or cervical \nspine.     \nI.  HISTORY \n Gerardo Perez Munoz, now age 54, testified that he became \nemployed as a production worker for the respondents in about September \n\nMUNOZ - H005445  2\n  \n \n \n2019.  The parties stipulated that the employment relationship existed on \nJune 10, 2020.  The claimant testified on direct examination: \n  Q.  What happened on June 10\nth\n of 2020? \nA.  Well, the department in which I hurt my shoulder \nhappened. \n  Q.  Can you describe how it happened? \nA.  The accident was the person behind us was working with a \nmachine and he did not turn off the machine, so it was loose \nand it hit me and that is when I hurt my shoulder.  Well, it \nwasn’t that it hit me.  It was that – it’s my – the person who \nwas working with me yelled at me and so I pushed it.  That’s \nhow I hurt my shoulder. \n \n The respondents’ attorney examined Cathy Copeland, the \nrespondent-employer’s safety coordinator: \nQ.  And were you the safety coordinator at the time Mr. Perez \nreported his injury? \n  A.  Yes.   \nQ.  Can you tell us what you recall about what he told you \nregarding his injury. \nA.  He came into my office that morning just a little bit after 6 \no’clock and told me that – he called them the frames fell (sic).  \nThe crane had hit one and they fell and hit him. \nQ.  Okay.  And did he tell you where it hit him? \nA.  He was holding his shoulder. \nQ.  Did he say he was hit in the shoulder? \nA.  He said it hit him.  Specifically the shoulder, not \nnecessarily, but he was holding his shoulder.... \nQ.  And after that was reported, what did you do? \nA.  They gave us a claim number and they told us to go to the \nwalk-in clinic in Fayetteville, which didn’t open until 8:00.... \nQ.  So did you drive him there? \nA.  I did.   \n \n According to the record, the claimant treated at MedExpress \nFayetteville on June 10, 2020:  “Patient comes in today for a Pain, \n\nMUNOZ - H005445  3\n  \n \n \nShoulder.  Hurt right shoulder this morning when trying to push a heavy \npiece of metal, painful to raise arm, hand feels ‘asleep’ at times....this am \nwhile at work a heavy piece of metal was falling towards pt put hands up to \nstop metal and developed pain to right shoulder[.]”  A physician assessed \n“Unspecified sprain of right shoulder joint[.]”  It was reported at MedExpress \non June 17, 2020, “Patient comes in today for [an] injury to shoulder.  Hurt \nright shoulder at work on June 10\nth\n at 6:00 am.”     \nDr. Clinton C. Turner noted on December 30, 2020, “Pt comes in \nwith right shoulder pain that started 3-4 months ago at work.”  Dr. Turner’s \nassessment included “Acute pain of right shoulder” and “Subacromial \nbursitis of right shoulder joint.”   \nThe claimant was provided physical therapy visits beginning January \n20, 2021, at which time it was noted, “Pt c/o right shoulder pain since June \n’20, after pushing a big piece of metal away from his shoulder while \nworking.  States he is having trouble reaching and lifting with RUE now; he \nis having trouble sleeping, and he feels numbness in his right hand/fingers \nwhen waking up in the mornings.  He also c/o right side neck pain and \ntightness.”  The physical therapist noted that the claimant was experiencing \n“intermittent numbness in his right hand, consistent with cervical \nderangement.”        \n\nMUNOZ - H005445  4\n  \n \n \n A pre-hearing order was filed on January 27, 2021.  The claimant \ncontended, “The claimant contends he sustained a compensable injury to \nhis right hand, arm, and shoulder and that he is entitled to medical benefits \nas a result thereof.  Claimant reserves all other issues.”   \n The respondents contended, “The respondents contend the claimant \ndid not sustain a compensable injury to his right hand, arm, or shoulder that \narose out of and in the course of his employment as a result of a specific \nincident and that is established by objective medical findings of an injury.”   \n The parties agreed to litigate the following issues: \n1. Compensability of injury to claimant’s right hand, arm, and \nshoulder on June 10, 2020. \n2. Related medical.   \n \nThe physical therapist noted on February 4, 2021, “Pt reports he felt \nfine after previous PT session, and has less neck pain now.  States his left \nupper arm continues to hurt, with 3-10 pain rating.  He also reports having \nmild numbness in his right hand.”   \nDr. Turner’s assessment on February 19, 2021 included “Acute pain \nof right shoulder,” “Cervical radiculopathy,” and “Right arm numbness.”   \nAn MRI of the claimant’s cervical spine was taken on February 26, \n2021 with the following impression: \n1. Motion artifact limits image quality and interpretation. \n2. Cervical spondylosis, worst at the C5-6 and C6-7 levels \nwhere there is mild to moderate canal and foraminal \nnarrowing.   \n\nMUNOZ - H005445  5\n  \n \n \n \nThe physical therapist noted on February 26, 2021, “No neck pain.”   \nThe claimant was discharged from physical therapy on March 5, \n2021.   \nAn MRI of the claimant’s right shoulder was taken on April 14, 2021: \n HISTORY:  Acute right shoulder pain.... \nIMPRESSION:  1.  Advanced infraspinatus tendinosis with \nmoderate to severe infraspinatus muscle atrophy. \n2.  Mild supraspinatus tendinosis. \n3.  Advanced tendinosis of the long head of the biceps tendon \nwith associated mild tenosynovitis. \n4.  Mild degenerative change of the acromioclavicular joint \nwith presence of an os acromiale.   \n \n Dr. Robert Macleod reported on April 23, 2021: \n50-year-old male comes in for evaluation of right shoulder \npain that began probably a year ago when he was working he \nwas lifting up overhead and felt a soreness in his right \nshoulder.  He filed a workers comp claim but apparently there \nis no causality and he continued to have pain in his right \nshoulder worse with overhead lifting and sleeping at night.  Is \nbetter with rest and anti-inflammatories because the persistent \nthe symptoms he had x-rays and MRI which demonstrated \npossible rotator cuff tear is referred here for further evaluation \nand treatment.... \nMRI of the right shoulder is reviewed and demonstrates \nsignificant tendinosis of the supra and infraspinatus with \nmuscle atrophy of the infraspinatus probably partial thickness \ntear.... \nAfter discussion of the risks and benefits, the patient elected \nto proceed with a Depro-Medrol injection into the right \nshoulder.... \n \n A hearing was held on May 26, 2021.  The claimant’s attorney stated \nat that time, “We are contending that the injury – and I think the \n\nMUNOZ - H005445  6\n  \n \n \nrespondents know this – is to the shoulder and that the arm and hand – the \nshoulder and the upper arm, but the hand is a symptom, so that is not a \nseparate injury.”   \nAn administrative law judge filed an opinion on June 28, 2021.  The \nadministrative law judge found, in pertinent part: \n2.  Claimant has met his burden of proving by a \npreponderance of the evidence that he suffered a \ncompensable injury to his right shoulder and upper arm while \nworking for respondent on June 10, 2020.   \n3.  Respondent is liable for payment of all reasonable and \nnecessary medical treatment provided in connection with \nclaimant’s compensable injury.   \n \n The parties thereafter stipulated that the administrative law judge’s \nJune 28, 2021 opinion was “final.”   \n Dr. James Boyle’s assessment on February 10, 2022 was “1.  Partial \nthickness rotator cuff tear.”  Dr. Boyle performed surgery on April 25, 2022:  \n“1.  Right shoulder arthroscopic rotator cuff repair.  2.  Right shoulder \narthroscopic biceps tenodesis for biceps tendon tear.  3.  Right shoulder \narthroscopic subacromial decompression.”  The pre- and post-operative \ndiagnosis was “Right shoulder rotator cuff tear, right shoulder biceps tendon \ntear, and right shoulder subacromial impingement.”   \n Dr. Christopher Dougherty performed surgery on October 17, 2023:  \n“1.  Removal of deep orthopedic hardware.  2.  Subacromial decompression \nwith distal clavicle resection.”  The pre- and post-operative diagnosis was \n\nMUNOZ - H005445  7\n  \n \n \n“1.  Painful retained orthopedic hardware, right shoulder.  2.  Impingement \nsyndrome and acromioclavicular joint arthritis.”   \n On June 26, 2024, Dr. Dougherty appeared to indicate that the \nclaimant had reached maximum medical improvement effective June 5, \n2024.  Dr. Dougherty assigned the claimant a 10% permanent impairment \nrating.   \n A pre-hearing order was filed on January 15, 2025.  The claimant \ncontended, “The claimant contends his neck was injured at the same time \nhis shoulder was injured and he is entitled to medical treatment for his neck.  \nClaimant reserves all other issues.” \n The respondents contended, “The respondents acknowledge that the \nclaimant sustained a 10% impairment rating for his right shoulder injury for \nwhich he is entitled to permanent partial disability benefits.  Respondents \nhave initiated PPD benefits and are paying a controverted attorney’s fee on \nsaid benefits.  With regard to the alleged cervical injury, respondents \ncontend the claimant was the subject of a full hearing on May 26, 2021 \nwherein claimant alleged a compensable injury.  Following the taking of \ntestimony and review of the medical records, the ALJ found that the \nclaimant proved he sustained a compensable injury to his right shoulder \nand upper arm.  Res judicata applies where there has been a final \nadjudication on the merits of an issue by a court of competent jurisdiction \n\nMUNOZ - H005445  8\n  \n \n \non all matters litigated and those matters necessarily within the issue which \nmight have been litigated.  See Castleberry v. Elite Lamp Company, 69 Ark. \nApp. 359, 13 S.W.3d 211 (2000); Harvest Foods v. Washam, 52 Ark. App. \n72, 914 S.W.2d 776 (1996); Perry v. Leisure Lodges, Inc., 19 Ark. App. 143, \n718 S.W.2d 114 (1986).  Res judicata applies to decisions of the Workers’ \nCompensation Commission if the merits of the issue have already been \nsubject to a full and fair hearing.  Beliew v. Stuttgart Rice Mill, 64 Ark. App. \n334, 980 S.W.2d 270 (1998); Perry, supra.  The rationale underlying the \ndoctrine of res judicata is to end litigation by preventing a party who has \nhad one fair trial of a question of fact from again drawing it into controversy.  \nCox v. Keahey, 84 Ark. App. 121, 133 S.W.3d 430 (2003); Mohawk Tire & \nRubber Co. v. Brider, 259 Ark. 728, 536 S.W.2d 126 (1976).”   \n The parties agreed to litigate the following issues: \n1. Compensability of injury to claimant’s cervical spine on \nJune 10, 2020. \n2. Related medical. \n3. Res judicata.   \n4. Law of case. \n5. Claim proclusion. I (sic). \n \nA hearing was held on March 12, 2025.  The claimant testified on \ndirect examination: \nQ.  Can you briefly describe what happened to you on June \n10\nth\n of 2020. \nA.  That is when the accident that I had with the company \nhappened.  A piece of metal – a piece of metal was coming \ntowards me and so that it wouldn’t hit me directly, I tried to \n\nMUNOZ - H005445  9\n  \n \n \npush it with my hands and like tried to move aside so that it \nwouldn’t hurt me.  So that is where I injured my right arm.   \nQ.  And did you say you tried to push away with your hands or \ndid you say your right hand? \nA.  I tried to push it with my hand, but what really felt the \nimpact was my shoulder.... \nQ.  And just after your accident, what were your symptoms? \nA.  It was lots of pain.  It was a very acute pain, very severe \npain, and I cannot really tell you if it was here on the shoulder \nor here on my neck.   \nQ.  Had the symptoms from the time of your injury up to the \ntime you had your first shoulder surgery, did they change? \nA.  From the shoulder, yes, but with the neck, no.  Up until \ntoday currently I still hurt from – I am still hurting from my \nneck.... \nQ.  So are you describing pain from behind your right ear \ndown your neck and to your right shoulder? \nA.  Yes. \nQ.  And that has been present since right after your accident? \nA.  Yes.   \n \n An administrative law judge filed an opinion on April 7, 2025.  The \nadministrative law judge found that the claimant proved he was “entitled to \npayment of permanent partial disability benefits in an amount equal to 10% \nto the body as a whole for his compensable right shoulder injury.”  The \nadministrative law judge found that the respondents had controverted the \nclaimant’s entitlement to permanent anatomical impairment, and that the \nrespondents were liable for payment of an attorney’s fee.  The respondents \ndo not appeal the administrative law judge’s findings with regard to \nanatomical impairment and fees for legal services.   \nThe administrative law judge found, “2.  Claimant’s claim for \ncompensability of an injury to his cervical spine on June 10, 2020, is barred \n\nMUNOZ - H005445  10\n  \n \n \nby the doctrine of res judicata.”  The claimant appeals to the Full \nCommission.   \nII.  ADJUDICATION \n Ark. Code Ann. §11-9-102(4)(Repl. 2012) provides, in pertinent part: \n(A)  “Compensable injury” means” \n(i)  An accidental injury causing internal or external \nphysical harm to the body ... arising out of and in \nthe course of employment and which requires \nmedical services or results in disability or death.  An \ninjury is “accidental” only if it is caused by a specific \nincident and is identifiable by time and place of \noccurrence[.]   \n \nA compensable injury must also be established by medical evidence \nsupported by objective findings.  Ark. Code Ann. §11-9-102(4)(D)(Repl. \n2012).  “Objective findings” are those findings which cannot come under the \nvoluntary control of the patient.  Ark. Code Ann. §11-9-102(16)(A)(i)(Repl. \n2012). \n The employee has the burden of proving by a preponderance of the \nevidence that he sustained a compensable injury.  Ark. Code Ann. §11-9-\n102(4)(E)(i)(Repl. 2012).  Preponderance of the evidence means the \nevidence having greater weight or convincing force.  Metropolitan Nat’l \nBank v. La Sher Oil Co., 81 Ark. App. 269, 101 S.W.3d 252 (2003).     \n An administrative law judge found in the present matter, “2.  \nClaimant’s claim for compensability of an injury to his cervical spine on \nJune 10, 2020, is barred by the doctrine of res judicata.”  The Full \n\nMUNOZ - H005445  11\n  \n \n \nCommission finds that the claimant did not prove by a preponderance of the \nevidence that he sustained a compensable injury to his neck or cervical \nspine. \n The claimant testified that he had formerly been employed as a \nproduction worker for the respondents.  The parties stipulated that the \nemployment relationship existed on June 10, 2020.  The claimant testified \nthat he injured his shoulder on that date as the result of a work-related \naccident.  The claimant did not initially contend that he injured any other \nbody part but expressly testified, “I hurt my shoulder.”  The respondent-\nemployer’s safety coordinator testified that the claimant was “holding his \nshoulder” following the accidental injury.  According to the record, the \nclaimant was treated at MedExpress on June 10, 2020 for “Pain, \nShoulder....Hurt right shoulder this morning when trying to push a heavy \npiece of metal[.]”  A physician’s assessment on June 10, 2020 was “sprain \nof right shoulder joint.”  The treating physician did not report an injury to the \nclaimant’s neck or cervical spine.   \n Dr. Turner examined the claimant on December 30, 2020 and noted, \n“Pt comes in with right shoulder pain that started 3-4 months ago at work.”  \nDr. Turner assessed “Acute pain of right shoulder” and “Subacromial \nbursitis of right shoulder joint.”  Dr. Turner did not report that the claimant \nhad injured his neck or cervical spine.  A physical therapist reported on \n\nMUNOZ - H005445  12\n  \n \n \nJanuary 20, 2021 that the claimant was suffering from “right side neck pain \nand tightness.”  The therapist noted that the claimant’s symptoms were \nconsistent with “cervical derangement.”  The evidence does not \ndemonstrate that the notation of “cervical derangement” on January 20, \n2021 was causally related to the right shoulder injury which occurred on \nJune 10, 2020.  Nor does the evidence demonstrate that Dr. Turner’s \nassessment of “Cervical radiculopathy” on February 19, 2021 was causally \nrelated to the right shoulder injury which occurred on June 10, 2020.  A \nphysical therapist noted on February 26, 2021 that there was “No neck \npain,” and the claimant was discharged from physical therapy on March 5, \n2021.   \n A hearing was held on May 26, 2021.  The claimant’s attorney stated \nat that time, “We are contending that the injury – and I think the \nrespondents know this – is to the shoulder and that the arm and hand – the \nshoulder and the upper arm, but the hand is a symptom, so that is not a \nseparate injury.”  The claimant did not contend that at that time that he had \nsustained a compensable neck or cervical injury.  An administrative law \njudge filed an opinion on June 28, 2021 and found that the claimant proved \nhe sustained “a compensable injury to his right shoulder and upper arm \nwhile working for respondent on June 10, 2020.”  The parties have \nstipulated that the administrative law judge’s June 28, 2021 decision was \n\nMUNOZ - H005445  13\n  \n \n \nfinal.  The claimant underwent surgeries to his right shoulder on April 25, \n2022 and October 17, 2023.  Dr. Dougherty assigned the claimant a 10% \npermanent impairment rating on or about June 26, 2024.  The respondents \ndo not appeal the administrative law judge’s finding that the claimant \nsustained a 10% whole-body impairment related to the compensable right \nshoulder injury, and that the respondents had controverted the claimant’s \nentitlement to permanent anatomical impairment.   \n A pre-hearing order was filed on January 15, 2025.  The claimant \ncontended that he injured his neck at the same time he injured his right \nshoulder.  The parties expressly agreed to litigate the issue, “1.  \nCompensability of injury to claimant’s cervical spine on June 10, 2020.”   \n In accordance with Ark. Code Ann. §11-9-102(4)(A)(i)(Repl. 2012), \nthe Full Commission finds that the claimant did not prove by a \npreponderance of the evidence that he sustained a compensable injury to \nhis neck or cervical spine.  The claimant did not prove that he sustained an \naccidental injury causing internal or external physical harm to his neck or \ncervical spine.  The claimant did not prove that he sustained an injury to his \nneck or cervical spine which arose out of and in the course of employment, \nrequired medical services, or resulted in disability.  The claimant did not \nprove that he sustained a compensable injury to his neck or cervical spine \nwhich was caused by a specific incident or was identifiable by time and \n\nMUNOZ - H005445  14\n  \n \n \nplace of occurrence on June 10, 2020 or any other date.  In addition, the \nclaimant did not establish a compensable injury to his neck or cervical spine \nwhich was established by medical evidence supported by objective findings.  \nThe evidence does not demonstrate that the findings of “Cervical \nradiculopathy” or “Cervical spondylosis” can be interpreted as objective \nmedical evidence establishing a compensable injury to the claimant’s neck \nor cervical spine.   \n After reviewing the entire record de novo, the Full Commission finds \nthat the claimant did not prove by a preponderance of the evidence that he \nsustained a compensable injury to his neck or cervical spine.  Therefore, we \nneed not adjudicate whether res judicata bars the claim for an alleged neck \nor cervical injury.  The Full Commission denies the claimant’s request to \nremand to the administrative law judge for additional proceedings.  See Ark. \nCode Ann. §11-9-704(b)(7)(Repl. 2012).  The claim for an alleged injury to \nthe claimant’s neck or cervical spine is respectfully dismissed. \n IT IS SO ORDERED.     \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner \n \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner","preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H005445 GERARDO PEREZ MUNOZ, EMPLOYEE CLAIMANT AZZ GALVANIZING, INC., EMPLOYER RESPONDENT AMERICAN ZURICH INSURANCE CO., INSURANCE CARRIER/TPA RESPONDENT OPINION FILED SEPTEMBER 29, 2025","fetched_at":"2026-05-19T22:29:44.058Z","links":{"html":"/opinions/full_commission-H005445-2025-09-29","pdf":"https://www.labor.arkansas.gov/wp-content/uploads/Munoz_Gerardo_H005445_20250929.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/"}}