{"id":"full_commission-H009300-2024-09-19","awcc_number":"H009300","decision_date":"2024-09-19","opinion_type":"full_commission","claimant_name":"Kimberly Taylor","employer_name":"Hino Motors Mfg. USA, Inc","title":"TAYLOR VS. HINO MOTORS MFG. USA, INC. AWCC# H009300 September 19, 2024","outcome":"granted","outcome_keywords":["granted:1","denied:1"],"injury_keywords":["back","shoulder","strain","lumbar","fracture","rotator cuff","hip","neck"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/Taylor_Kimberly_H009300_20240919.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Taylor_Kimberly_H009300_20240919.pdf","text_length":40396,"full_text":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n \nCLAIM NO.  H009300  \n \nKIMBERLY TAYLOR, \nEMPLOYEE \n \nCLAIMANT \nHINO MOTORS MFG. USA, INC., \nEMPLOYER \n \nRESPONDENT \nSOMPO AMERICA INSURANCE CO., \nINSURANCE CARRIER/TPA \nRESPONDENT \n  \n      \nOPINION FILED SEPTEMBER 19, 2024 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE ANDY L. CALDWELL, Attorney \nat Law, Little Rock, Arkansas. \n \nRespondents represented by the HONORABLE JASON M. RYBURN, \nAttorney at Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Affirmed in part, reversed in part. \n \n \n OPINION AND ORDER \nThe claimant appeals and the respondents cross-appeal an \nadministrative law judge’s opinion filed January 24, 2024.  The \nadministrative law judge found that the claimant did not prove she sustained \na compensable low back injury.  The administrative law judge found that the \nclaimant proved she was entitled to additional medical treatment provided in \nconnection with her compensable right shoulder injury.  After reviewing the \nentire record de novo, the Full Commission finds that the claimant proved \nshe sustained a compensable injury to her right shoulder.  We find that the \nclaimant proved the medical treatment of record related to her right \n\nTAYLOR - H009300  2\n  \n \n \nshoulder was reasonably necessary.  The Full Commission finds that the \nclaimant did not prove she sustained a compensable low back injury.  We \nfind that the claimant did not prove she was entitled to additional temporary \ntotal disability benefits.  The respondents are not liable for fees for legal \nservices in accordance with Ark. Code Ann. §11-9-715(a)(2)(B)(ii)(Repl. \n2012).       \nI.  HISTORY \n The parties stipulated that the employee-employer-carrier \nrelationship existed on or about October 21, 2020.  Kimberly Taylor, now \nage 43, testified on direct examination: \nQ.  And where were you employed back on October 21, \n2020? \n A.  At Hino Motors. \n Q.  How long had you been there? \n A.  Three days. \n Q.  And what was your job title? \nA.  Rear-axle....Put the seals on the axle and screw down the \nbolts.... \nQ.  And did you have an incident at work on October 21, \n2020? \n A.  Yes, sir.   \n Q.  Briefly tell the judge what happened. \nA.  I was getting trained by Kadesia Wilson, and the line kept \nstopping.  And the line – the line leader came over and told \nher not to pull the call wait and stop any more, show me what \nto do when the line – when it jams.  So with that being said, \nshe showed me what to do, and that consists of pulling the \npart to unjam it so it can go down the conveyor belt.  And so \nthen she – she showed me, and then once it was my turn, I \nwent to go and do the same as I was showed, pulled the part, \nbut when I pulled the part, I pulled – my body – I was on my \n\nTAYLOR - H009300  3\n  \n \n \ntiptoes because it was jammed -  I immediately felt a pinch but \nI didn’t think anything of it.... \nQ.  And what body parts did you hurt at that time? \nA.  My lower back and my right shoulder.   \n \n According to the record, the claimant treated at Coast to Coast \nMedical on October 21, 2020 where it was reported, “States hurt lower R \nside back pulling on part.” \nA Form AR-3, PHYSICIAN’S REPORT dated October 21, 2020 \nindicated the following:  “Patient was working on the line and tried to pull an \naxel (sic) that had gotten stuck.  Felt a little pull and sting to her right upper \nback.  As she continued to work the pain became worse....Tender to \npalpation to right upper back.”  Christopher Gross, APN reported on the \nForm AR-3 that the diagnosis was “Right upper back strain.”  The claimant \ntestified that she did not return to work for the respondents following the \nspecific incident occurring October 21, 2020.     \nChristopher Gross reported on November 6, 2020, “Patient was \nworking on the line on 10/21 and tried to pull an axel (sic) that had gotten \nstuck.  Felt a little pull and sting to her right Lower back.  As she continued \nto work the pain became worse.  When she woke up on 10/22 she noticed a \npain to right shoulder also which caused decreased function of the \nshoulder.  States she has been working but the pain is worse than when the \ninjury occurred.”  Mr. Gross diagnosed “Right upper back strain.  Right \nshoulder pain, Lower back Pain.”  The claimant was treated conservatively.         \n\nTAYLOR - H009300  4\n  \n \n \nA radiologist reported on November 6, 2020: \n RIGHT SHOULDER (two views, external and internal): \nThere are no fractures or dislocations identified.  The soft \ntissues appear normal.  No destructive lesion or significant \narthritic change is identified.   \nIMPRESSION:  Normal right shoulder.   \nLUMBAR SPINE WITH OBLIQUES (four views, AP, both \nobliques, lateral):  Osteophytes are present anteriorly \ninvolving L3 through S1.  There is joint space narrowing with \nsclerosis at L5-S1.  No fracture or dislocation is identified.   \nIMPRESSION:  Mild arthritic changes involving L3 through \nS1.  No acute abnormality is identified.     \n \n The parties stipulated that the respondents paid temporary total \ndisability benefits beginning November 6, 2020.  An Occupational Therapist \nreported on December 1, 2020, “Observation:  swelling continues to R \nupper trap and R anterior deltoid.”  An MRI of the claimant’s right shoulder \nwas taken on March 23, 2021: \n  HISTORY:  Right shoulder pain.  Pulling injury 10/21/2020.... \nFINDINGS:  The AC joint is normal.  A trace of fluid and \nedema is present in the subacromial bursa compatible with \nmild bursitis.  The tendons of the rotator cuff are intact.   \nBiceps tendon is intact.  Irregularity of the mid to posterior \nportion of the superior labrum is compatible with SLAP tear.  \nThe labrum is otherwise intact. \nThere is no fracture or pathologic osseous lesion.  There is no \nsoft tissue mass.  There is no significant joint effusion.  \nOPINION:  1.  SLAP tear. \n2.  Mild subacromial bursitis.   \n \n Dr. David Brown examined the claimant on May 6, 2021: \nThis is a 40 year old female who is being seen for a chief \ncomplaint of right shoulder pain.  The pain began on 10/21/20 \nafter she pulled on a piece of equipment at work that strained \nher shoulder.  She describes a sharp, throbbing pain located \n\nTAYLOR - H009300  5\n  \n \n \ndiffusely throughout the shoulder that radiates down the arm.  \nThe pain worsens when getting dressed and with reaching \nmotions.  She also complains of swelling.... \nX-rays of the right shoulder reveal no obvious fractures.  Her \nglenohumeral joint is reduced.  She has a downsloping \nacromion.   \nThe patient continues to complain of pain over 6 months out \nfrom her injury.  She has tried physical therapy, rest, and anti-\ninflammatories.  She describes her pain as sharp.  Her \nmedical records state that she has a possible SLAP tear.  I \nwill obtain the patient’s right shoulder MRI and make further \nrecommendations....I will place her on light duty with no use \nof her right arm restriction.   \n \n Dr. Brown’s impression was “Shoulder Pain, Right.” \n The claimant followed up with Dr. Brown on May 18, 2021:  “I am \nconcerned about proceeding with surgery with the patient’s current \nstiffness.  I will give the patient a steroid injection.  I will get her started back \ninto a formal physical therapy program.  I will see her back in 4 weeks to \nsee how she is doing.  I will keep her on light duty at work for now.”  The \nclaimant testified that she underwent physical therapy recommended by Dr. \nBrown.     \n The claimant continued to follow up with Dr. Brown, who noted on \nAugust 12, 2021, “I am very hesitant to proceed with any sort of surgery \nconsidering the amount of patient’s stiffness and apprehension with range \nof motion.  She has evidence of a SLAP tear that occurred in October 2020.  \nI recommend the patient undergo an independent medical exam with an \noption to treat via a second opinion.  I will keep her on light duty at work.”  \n\nTAYLOR - H009300  6\n  \n \n \nDr. Brown’s impression was “1.  Superior Glenoid Labrum Lesion (SLAP), \nRight.” \n The claimant treated with Denise Purnell, APRN on February 7, \n2022:  “Pt comes into clinic with c/o low back pain, hip pain....Overall \nfindings low back tenderness.”  Denise Purnell assessed “Allergic rhinitis” \nand “Lumbago.”         \nDr. Charles E. Pearce noted on February 28, 2022: \nThe patient is a 40-year-old right-handed employee of Hino \nMotors who was injured the 1\nst\n day of training/work when she \nwas instructed to pull an axle off of a line.  She says she could \nnot pull the axle despite leaning over the part and as she did \nso she felt a pinch and pull in her right shoulder.  She has \nbeen on light duty restrictions since.  She was seen and \nevaluated by Dr. Davis Brown who prescribed diclofenac and \nordered an MRI scan of her shoulder.  Additionally she had a \ncortisone injection.  Prior to that visit she had had a course of \ntherapy, modification activities and anti-inflammatories.  She \nhas never had similar problems in the past.  She complains of \nneck and right shoulder pain.  MRI scan was done and by \nreport showed a SLAP tear.  Surgery apparently was \ndiscussed but there was concern that she had not gained \nmotion despite the above modalities to include the steroid \ninjection.  Dr. Brown asked for a 2\nnd\n opinion.  Currently, she is \ncomplaining of shoulder, shoulder girdle, right neck and arm \npain to about the elbow.... \nIMAGING:  X-rays ordered and interpreted by me surgical \nspine and right shoulder show no significant acute \nabnormality.  There may be slight straightening of her lordotic \ncurve.  MRI scan from March 23, 2021 is a noncontrast scan \nand shows some possible undercutting of her superior labrum \nthat was labile (sic) a slap tear.  However this can be a normal \nfinding as well.   \n \n\nTAYLOR - H009300  7\n  \n \n \n Dr. Pearce gave the following impression:  “Right shoulder, shoulder \ngirdle, arm pain and weakness not consistent with MRI finding of slap tear.”  \nDr. Pearce recommended a Functional Capacity Evaluation and stated, “2.  \nPatient can continue with light duties, anti-inflammatories in the interim \ntime.”   \n Dr. Camdin M. Gray’s assessment on March 4, 2022 included \n“Lumbago....Low back pain – referral to PT as suspect muscle spasm.  XR \nas above, will trial cyclobenzaprine.”   \n The claimant participated in a Functional Capacity Evaluation on \nApril 6, 2022:  “Ms. Taylor completed functional testing on this date with \nunreliable results.  Overall, Ms. Taylor demonstrated the ability to perform \nwork in at least the SEDENTARY classification of work[.]” \n Dr. Gray noted on April 13, 2022, “Still having low back pain, \nattending PT.  Had worsening of her back pain the other day after doing \ntraction at PT.”   \n Dr. Pearce provided an Addendum on April 18, 2022: \nThe patient completed a functional capacity evaluation on \nApril 6, 2022.  She gave an unreliable effort only meeting 27 \nof 52 consistency measures.  She was placed in a least the \nsedentary classification of work.  However this is not valid \nbecause of her unreliable effort.   \nThe patient has reached maximal medical improvement. \nThe patient can return to regular work duties without \nrestriction.   \nThere is no indication for further diagnostic testing and/or \ntreatment.   \n\nTAYLOR - H009300  8\n  \n \n \nThe patient has sustained 0% permanent partial impairment \nas it relates to her upper extremity. \nThe statements are made within a degree of medical \ncertainty.   \n \n Dr. Gray planned on April 26, 2022, “Due to intermittent urinary \nincontinence based on positionality, concern for spinal cord pathology, so \nordered MRI to assess.  Also back pain has been ongoing for 8 weeks, so \nanother clinical indication of MRI.”   \nThe parties stipulated that the respondents paid temporary total \ndisability benefits through May 12, 2022.  Dr. Gray referred the claimant to \nPain Treatment Centers of America.  The record indicates that the claimant \nreceived a Lumbar Medial Branch Block at Pain Treatment Centers of \nAmerica on October 6, 2022.   \n Dr. Ted Shields performed a “Suprascapular Nerve Block for \nshoulder pain” at Pain Treatment Centers of America on October 24, 2022.  \nThe claimant continued to occasionally follow up with Dr. Shields for various \n“nerve block” procedures.        \n A pre-hearing order was filed on July 24, 2023.  The claimant \ncontended, “The Claimant contends that she sustained injuries to her back \nand right shoulder in the course and scope of [her] employment on October \n21, 2020, when she was removing parts from a machine.  The Respondents \ninitially accepted the right shoulder as compensable and paid medical and \ntemporary total disability benefits from November 6, 2020 through January \n\nTAYLOR - H009300  9\n  \n \n \n14, 2021.  Respondents have now controverted the claim in its entirety.  \nThe Claimant was under the treatment of Christopher Gross, APN with \nCoast to Coast Medical who diagnosed the Claimant with a SLAP tear of \nthe right shoulder and low back pain with radiculopathy and he \nrecommended an MRI of the lumbar spine and a referral to an orthopedist.  \nClaimant was treating with Dr. David Brown for her shoulder.  Dr. Brown \nopined that the Claimant sustained a SLAP tear of the right shoulder.  He \nwas concerned with performing surgery due to the Claimant’s stiffness and \nhe recommended a second opinion with an option to treat and he kept the \nClaimant on light duty.  The Respondents have denied the \nrecommendations of Dr. Gross and Dr. Brown.  Claimant contends that she \nsustained compensable injuries to her back and right shoulder; she is \nentitled to the recommended MRI of the lumbar spine, physical therapy and \na repair of her right shoulder SLAP tear, payment/reimbursement of medical \nand out of pocket expenses.  All other issues are reserved.”   \n The parties stipulated that the respondents “initially accepted \nClaimant’s alleged right shoulder injury as compensable and paid medical \nand temporary total benefits pursuant thereto; but they have now \ncontroverted this claim in its entirety.”  The respondents contended, “This \nrespondent will assert the following defenses:  The claimant did not suffer a \ncompensable back injury.  Her right shoulder was accepted and all \n\nTAYLOR - H009300  10\n  \n \n \nreasonable and necessary benefits were paid.  Claimant gave an unreliable \neffort in an FCE, failed to attend Physical Therapy appointments and then \nwas released at MMI with 0% impairment by Dr. Pearce on 2/28/22.  \nRespondents have not controverted the claim in its entirety and do not owe \nattorney’s fees on previous indemnity.”   \n The parties agreed to litigate the following issues: \n1.  Whether Claimant sustained compensable injuries by \nspecific incident to her back and right shoulder. \n2.  Whether Claimant is entitled to reasonable and necessary \nmedical treatment. \n3.  Whether Claimant is entitled to additional temporary total \ndisability benefits.   \n4.  Whether Claimant is entitled to a controverted attorney’s \nfee, including a fee on all indemnity benefits previously paid in \nthis claim.  All other issues have been reserved.   \n \n An MRI of the claimant’s right shoulder was taken on September 13, \n2023 with the following impression: \n1.  Tiny low-grade interstitial partial infraspinatus tendon tear.  \nNo full-thickness rotator cuff tear.   \n2.  Anterosuperior to posterosuperior labral tear.   \n \n After a hearing, an administrative law judge filed an opinion on \nJanuary 24, 2024.  The administrative law judge found, among other things, \nthat the claimant proved she sustained a compensable injury to her right \nshoulder.  The administrative law judge awarded reasonably necessary \nmedical treatment provided in connection with the compensable right \nshoulder injury.  The administrative law judge found that the claimant did \n\nTAYLOR - H009300  11\n  \n \n \nnot prove she was entitled to additional temporary total disability benefits.  \nThe administrative law judge found that the claimant did not prove she \nsustained a compensable low back injury.  The claimant appeals to the Full \nCommission and the respondents cross-appeal. \nII.  ADJUDICATION \n A.  Compensability \n Act 796 of 1993, as codified at Ark. Code Ann. §11-9-102(4)(Repl. \n2012), provides, in pertinent part: \n  (A)  “Compensable injury” means: \n(i)  An accidental injury causing internal or external physical \nharm to the body ... \narising out of and in the course of employment and which \nrequires medical services or results in disability or death.  An \ninjury is “accidental” only if it is caused by a specific incident \nand is identifiable by time and place of occurrence[.]   \n \n A compensable injury must 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 she sustained a compensable injury.  Ark. Code Ann. §11-9-\n102(4)(E)(i)(Repl. 2012).  Preponderance of the evidence means the \n\nTAYLOR - H009300  12\n  \n \n \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 1.  Right Shoulder \n An administrative law judge found in the present matter, “6.  \nClaimant has proven by a preponderance of the evidence that she \nsustained a compensable injury to her right shoulder by specific incident.”  \nThe Full Commission finds that the claimant proved she sustained a \ncompensable injury to her right shoulder.  The parties stipulated that the \nemployment relationship existed on October 21, 2020.  The claimant \ntestified regarding her job description, “Rear-axle....Put the seals on the \naxle and screw down the bolts.”  The claimant testified that, while \nperforming employment services, she injured her lower back and right \nshoulder while pulling on an industrial part.   \n The medical evidence corroborated the claimant’s contention that \nshe injured her right shoulder on October 21, 2020.  Christopher Gross, \nAPN reported that the claimant’s right shoulder began hurting as a result of \nthe accident which occurred on October 21, 2020.  Mr. Gross’ diagnosis on \nNovember 6, 2020 included “Right shoulder pain.”  An Occupational \nTherapist treated the claimant on December 1, 2020 and observed swelling \nin the area of the claimant’s right trapezius.  “Swelling” can be an objective \nmedical finding establishing a compensable injury.  White Cnty. Med. Ctr. \n\nTAYLOR - H009300  13\n  \n \n \nLLC v. Johnson, 2022 Ark. App. 262, 646 S.W.3d 245.  In addition, an MRI \nof the claimant’s right shoulder on March 23, 2021 showed a “SLAP tear.”  \nDr. Brown diagnosed this objective finding as “1.  Superior Glenoid Labrum \nLesion (SLAP), Right.”  Dr. Brown reported that the claimant injured her \nright shoulder while performing employment services on October 21, 2020.  \nThe “SLAP tear” was confirmed in the MRI of the claimant’s right shoulder \nwhich was taken on September 13, 2023.  \n In accordance with Ark. Code Ann. §11-9-102(4)(A)(i)(Repl. 2012), \nthe Full Commission finds that the claimant proved by a preponderance of \nthe evidence that she sustained a “compensable injury” to her right \nshoulder.  The claimant proved that she sustained an accidental injury \ncausing physical harm to her right shoulder.  The injury arose out of and in \nthe course of employment, required medical services, and resulted in \ndisability.  The injury was caused by a specific incident which was \nidentifiable by time and place of occurrence on October 21, 2020.  In \naddition, the claimant established a compensable injury by medical \nevidence supported by objective findings, namely the occupational \ntherapist’s observation of right shoulder swelling and the documented \n“SLAP tear” shown following the accidental injury.  The claimant proved that \nthese objective medical findings were causally related to the accidental \n\nTAYLOR - H009300  14\n  \n \n \ninjury occurring October 21, 2020 and were not the result of a prior injury or \npre-existing condition.   \n 2.  Back \n An administrative law judge found, “5.  Claimant has not proven by a \npreponderance of the evidence that she sustained a compensable injury to \nher back by specific incident.”  The Full Commission finds that the claimant \ndid not prove she sustained a compensable injury to her low back.  As we \nhave discussed, the parties stipulated that the employment relationship \nexisted on October 21, 2020.  In addition to her right shoulder, the claimant \ntestified that she injured her lower back while reaching for an industrial part.  \nThe claimant did not establish a compensable injury to her back by medical \nevidence supported by objective findings.  Christopher Gross reported on \nOctober 21, 2020 that the claimant was “Tender to palpation to right upper \nback.”  “Tenderness” is not an objective medical finding establishing a \ncompensable injury.  Rodriguez v. M. McDaniel Co., Inc., 98 Ark. App. 138, \n252 S.W.3d 146.   An x-ray of the claimant’s back was taken on November \n6, 2020 with the impression, “Mild arthritic changes involving L3 through S1.  \nNo acute abnormality is identified.”  The evidence does not demonstrate \nthat the “mild arthritic changes” described in the November 6, 2020 x-ray \nwere causally related to the October 21, 2020 accident, and these arthritic \nchanges cannot be interpreted as objective findings establishing a \n\nTAYLOR - H009300  15\n  \n \n \ncompensable injury.  There is no probative evidence before the \nCommission demonstrating that the claimant established a compensable \ninjury to her back by medical evidence supported by objective findings.  Nor \nis there any credible evidence demonstrating that the claimant suffered \nfrom “muscle spasm” in her low back as a result of the October 21, 2020 \nincident in which the claimant sustained a compensable injury to her right \nshoulder.   \n Pursuant to Ark. Code Ann. §11-9-102(4)(A)(i)(Repl. 2012), the Full \nCommission finds that the claimant did not prove by a preponderance of the \nevidence that the sustained a “compensable injury” to her low back.  The \nclaimant did not prove that she sustained an accidental injury causing \ninternal or external physical harm to her back.  The claimant did not prove \nthat she sustained an injury to her low back which arose out of and in the \ncourse of employment, required medical services, or resulted in disability.  \nThe claimant did not prove that she sustained an injury to her low back as \nthe result of a specific incident identifiable by time and place of occurrence \non or about October 21, 2020.  Finally, the claimant did not establish a \ncompensable injury to her low back by medical evidence supported by \nobjective findings.   \n B.  Temporary Disability \n\nTAYLOR - H009300  16\n  \n \n \n Temporary total disability is that period within the healing period in \nwhich the employee suffers a total incapacity to earn wages.  Ark. State \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 \ncontinues until the employee is as far restored as the permanent character \nof her injury will permit, and if the underlying condition causing the disability \nhas become stable and nothing further in the way of treatment will improve \nthat condition, the healing period has ended.  Harvest Foods v. Washam, \n52 Ark. App. 72, 914 S.W.2d 776 (1996).  The determination of when the \nhealing period has ended is a question of fact for the Commission.  Carroll \nGen. Hosp. v. Green, 54 Ark. App. 102, 923 S.W.2d 878 (1996).   \n An administrative law judge found in the present matter, “9.  \nClaimant has not proven by a preponderance of the evidence that she is \nentitled to additional temporary total disability benefits.”  The Full \nCommission affirms this finding.  The claimant proved by a preponderance \nof the evidence that she sustained a compensable right shoulder injury on \nOctober 21, 2020.  The claimant did not prove that she sustained a \ncompensable low back injury on that date.  The claimant testified that she \ndid not return to work for the respondents following the compensable injury.  \nThe respondents paid temporary total disability benefits beginning \n\nTAYLOR - H009300  17\n  \n \n \nNovember 6, 2020.  As we have discussed, an MRI of the claimant’s right \nshoulder on March 23, 2021 showed a “1.  SLAP tear.”  The claimant \nreceived conservative medical treatment.   \n Dr. Pearce examined the claimant on February 28, 2022 and \nrecommended a Functional Capacity Evaluation.  The claimant participated \nin a Functional Capacity Evaluation on April 6, 2022.  It was concluded that \nthe claimant performed during the Functional Capacity Evaluation “with \nunreliable results,” and the claimant was returned to Sedentary work.  Dr. \nPearce reported on April 18, 2022:  “The patient has reached maximal \nmedical improvement.  The patient can return to regular work duties without \nrestriction....The patient has sustained 0% permanent partial impairment as \nit relates to her upper extremity.”  The parties stipulated that the \nrespondents continued to pay temporary total disability benefits through \nMay 12, 2022.  The claimant’s testimony indicated that she subsequently \nreturned to work for another employer for a brief time.   \n Based on the current record before us, the Full Commission finds \nthat the claimant did not prove she was entitled to additional temporary total \ndisability benefits after May 12, 2022.  It is within the Commission’s \nprovince to weigh all of the medical evidence and to determine what is most \ncredible.  Minnesota Mining & Mfg. v. Baker, 337 Ark. 94, 989 S.W.2d 151 \n(1999).  The Full Commission finds in the present matter that Dr. Pearce’s \n\nTAYLOR - H009300  18\n  \n \n \nopinion is credible, is corroborated by the record, and is entitled to \nsignificant evidentiary weight.  We find that the claimant reached the end of \na healing period for her October 21, 2020 compensable right shoulder injury \nno later than April 18, 2022.  Dr. Pearce opined on April 18, 2022 that the \nclaimant had reached maximal medical improvement and could return to \nregular work duties without restriction.  There are no credible medical \nopinions of record contradicting Dr. Pearce’s opinion.  Temporary total \ndisability benefits cannot be awarded after the healing period has ended.  \nElk Roofing Co. v. Pinson, 22 Ark. App. 191, 737 S.W.2d 661 (1987).  \nPersistent pain does not extend a claimant’s healing period, provided that \nthe underlying condition has stabilized.  Mad Butcher, Inc. v. Parker, 4 Ark. \nApp. 124, 628 S.W.2d 582 (1982).  The Full Commission finds in the \npresent matter that the claimant’s condition stabilized no later than April 18, \n2022, the date Dr. Pearce opined that the claimant had reached maximal \nmedical improvement and could return to unrestricted work. \n C.  Medical Treatment \n The employer shall promptly provide for an injured employee such \nmedical treatment as may be reasonably necessary in connection with the \ninjury received by the employee.  Ark. Code Ann. §11-9-508(a)(Repl. 2012).  \nThe employee has the burden of proving by a preponderance of the \nevidence that medical treatment is reasonably necessary.  Stone v. Dollar \n\nTAYLOR - H009300  19\n  \n \n \nGeneral Stores, 91 Ark. App. 260, 209 S.W.3d 445 (2005).  What \nconstitutes reasonably necessary medical treatment is a question of fact.  \nWright Contracting Co. v. Randall, 12 Ark. App. 358, 676 S.W.2d 750 \n(1984).   \n An administrative law judge found in the present matter, “8.  \nClaimant has proven by a preponderance of the evidence that she is \nentitled to reasonable and necessary medical treatment of her \ncompensable right shoulder injury.  Moreover, she has proven by a \npreponderance of the evidence that all of her treatment that is in evidence \nwas reasonable and necessary.”  The Full Commission finds that the \nmedical treatment of record related to the claimant’s right shoulder was \nreasonably necessary in accordance with Ark. Code Ann. §11-9-\n508(a)(Repl. 2012).   \n The Full Commission has found that the claimant proved she \nsustained a compensable right shoulder injury on October 21, 2020.  The \nclaimant did not prove that she sustained a compensable low back injury.  \nWe find that the medical treatment of record related to the claimant’s right \nshoulder on and after October 21, 2020 was reasonably necessary.  Said \nreasonably necessary medical treatment includes the treatment of record \nprovided by Dr. Brown.  Dr. Brown eventually recommended an \nIndependent Medical Evaluation and second opinion.  On April 18, 2022, \n\nTAYLOR - H009300  20\n  \n \n \nDr. Pearce opined that the claimant had reached maximum medical \nimprovement and he stated, “There is no indication for further diagnostic \ntesting and/or treatment.”   \n The record therefore shows, as we have found supra, that the \nclaimant reached the end of a healing period related to her compensable \nright shoulder injury no later than April 18, 2022 as opined by Dr. Pearce.  \nHowever, it is well-settled that a claimant may be entitled to ongoing \nmedical treatment after the healing period has ended, if the medical \ntreatment is geared toward management of the claimant’s compensable \ninjury.  Patchell v. Wal-Mart Stores, Inc., 86 Ark. App. 230, 184 S.W.3d 31 \n(2004).  The Full Commission finds that the “Nerve Block for shoulder pain” \nadministered by Dr. Shields on October 24, 2022 was geared toward \nmanagement of the claimant’s injury and was reasonably necessary.  The \nclaimant did not prove that any treatment related to her low back was \nreasonably necessary, including treatment provided by Denise Purnell \nbeginning February 7, 2022 and following.    \n D.  Fees for legal services \n Ark. Code Ann. §11-9-715(Repl. 2012) provides, in pertinent part: \n(a)(1)(A)  Fees for legal services rendered in respect of a \nclaim shall not be valid unless approved by the Workers’ \nCompensation Commission.   \n(B)  Attorney’s fees shall be twenty-five percent (25%) of \ncompensation for indemnity benefits payable to the injured \nemployee or dependents of a deceased employee.... \n\nTAYLOR - H009300  21\n  \n \n \n(2)(B)(ii)  The fees shall be allowed only on the amount of \ncompensation for indemnity benefits controverted and \nawarded.   \n \n An administrative law judge found in the present matter, “10.  \nClaimant has proven by a preponderance of the evidence that her counsel \nis entitled to a controverted attorney’s fee on the indemnity benefits \npreviously paid under this claim, pursuant to Stipulation No. 3 and Ark. \nCode Ann. §11-9-715(Repl. 2012).”  The Full Commission does not affirm \nthis finding.   \n The parties stipulated that the employment relationship existed on \nOctober 21, 2020, on which date the claimant sustained a compensable \ninjury to her right shoulder.  The parties stipulated that the respondents paid \ntemporary total disability benefits beginning November 6, 2020 and \ncontinuing through May 12, 2022.  A pre-hearing order was filed on July 24, \n2023.  The claimant contended, among other things, that she sustained \ninjuries in the course and scope of her employment.  The parties stipulated, \n“3.  Respondents initially accepted Claimant’s alleged right shoulder injury \nas compensable and paid medical and temporary total disability benefits \npursuant thereto; but they have now controverted this claim in its entirety.”  \nYet the respondents also contended in part, “Respondents have not \ncontroverted the claim in its entirety and do not owe attorney’s fees on \nprevious indemnity.”   \n\nTAYLOR - H009300  22\n  \n \n \n A hearing was held on October 27, 2023.  At that time, the \nrespondents stated that they initially accepted compensability of the \nclaimant’s right shoulder injury and had paid temporary total disability \nbenefits until the claimant reached maximum medical improvement.  The \nrespondents stated that they had not controverted the claim in its entirety.  \nThe administrative law judge denied the respondents’ proposition to modify \nthe agreed stipulation.  It is well-settled that a stipulation is an agreement \nbetween attorneys respecting the conduct of the legal proceedings.  \nDinwiddie v. Syler, 230 Ark. 405, 323 S.W.2d 548 (1959).  The Commission \nhas the discretion to allow a party to withdraw a stipulation.  Jackson v. \nCircle T Express, 49 Ark. App. 94, 896 S.W.2d 602 (1995).  Since the \nrespondents in the present matter initially provided medical treatment and \npaid temporary total disability benefits, the Full Commission finds that the \nrespondents should be allowed to withdraw the earlier stipulation that they \ncontroverted the claim its entirety.   \n Moreover, a fee is payable from the employer or carrier only if \nbenefits are controverted and awarded.  Eldridge v. Pace Indus., LLC, 2021 \nArk. App. 245, 625 S.W.3d 734, citing Burton v. Chartis Claims, Inc., 2014 \nArk. App. 47.  See also Gant v. First Step, Inc., 2023 Ark. App. 393, 675 \nS.W.3d 445.  A maxim of workers’ compensation law is that when the \nCommission finds that a case has been controverted, in whole or in part, \n\nTAYLOR - H009300  23\n  \n \n \nthe Commission shall direct the payment of legal fees by the employer or \ncarrier in addition to the compensation awarded.  Ark. Code Ann. §11-9-\n715(a)(2)(B)(ii)(Repl. 2012; Harvest Foods v. Washam, 52 Ark. App. 72, \n914 S.W.2d 776 (1996).  One of the purposes of the statute and case law is \nto put the economic burden of litigation on the party that makes litigation \nnecessary by controverting the claim.  Id, citing Prier Brass v. Weller, 23 \nArk. App. 193, 745 S.W.2d 647 (1988).  In the present matter, litigation was \nnot necessary in order for the claimant to receive temporary total disability \nbenefits voluntarily paid by the respondents beginning November 6, 2020 \nand continuing through May 12, 2022.  In the subsequent pre-hearing order \nfiled July 24, 2023, the claimant did not contend that she was entitled to an \naward of this period of temporary total disability benefits.  Nor did the \nadministrative law judge award this period of temporary total disability \nbenefits or any other period.  We find that the claimant’s attorney is not \nentitled to fees for legal services in accordance with Ark. Code Ann. §11-9-\n715(a)((2)(B)(ii)(Repl. 2012).   \n After reviewing the entire record de novo, the Full Commission finds \nthat the claimant proved she sustained a compensable injury to her right \nshoulder.  We find that the claimant proved the medical treatment related to \nher right shoulder was reasonably necessary in accordance with Ark. Code \nAnn. §11-9-508(a)(Repl. 2012).  There are currently no recommendations \n\nTAYLOR - H009300  24\n  \n \n \nof additional treatment related to the claimant’s compensable right shoulder \ninjury.  The Full Commission finds that the claimant did not prove she \nsustained a compensable low back injury.  Based on the current record, we \nfind that the claimant did not prove she was entitled to additional temporary \ntotal disability benefits.  The respondents are not liable for fees for legal \nservices in accordance with Ark. Code Ann. §11-9-715(a)(2)(B)(ii)(Repl. \n2012).  However, for prevailing in part on appeal, the claimant’s attorney is \nentitled to a fee of five hundred dollars ($500), pursuant to Ark. Code Ann. \n§11-9-715(b)(Repl. 2012). \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 that the \nclaimant proved the medical treatment of record related to her right \nshoulder was reasonably necessary. \nArk. Code Ann. § 11-9-508(a) (Repl. 2012) requires an employer to \nprovide an employee with medical and surgical treatment \"as may be \n\nTAYLOR - H009300  25\n  \n \n \nreasonably necessary in connection with the injury received by the \nemployee.\" The claimant has the burden of proving by a preponderance of \nthe evidence that the additional treatment is reasonable and necessary. \nNichols v. Omaha Sch. Dist., 2010 Ark. App. 194, 374 S.W.3d 148 (2010). \nWhat constitutes reasonably necessary treatment is a question of \nfact for the Commission.  Gant v. First Step, Inc., 2023 Ark. App. 393, 675 \nS.W.3d 445 (2023).  In assessing whether a given medical procedure is \nreasonably necessary for treatment of the compensable injury, the \nCommission analyzes both the proposed procedure and the condition it \nsought to remedy.  Walker v. United Cerebral Palsy of Ark., 2013 Ark. App. \n153, 426 S.W.3d 539 (2013). \nIt is within the Commission's province to weigh all the medical \nevidence to determine what is most credible and to determine its medical \nsoundness and probative force.  Sheridan Sch. Dist. v. Wise, 2021 Ark. \nApp. 459, 637 S.W.3d 280 (2021).  \nIn weighing the evidence, the Commission may not arbitrarily \ndisregard medical evidence or the testimony of any witness.  Id.  However, \nthe Commission has the authority to accept or reject medical opinions. \nWilliams v. Ark Dept. of Community Corrections, 2016 Ark. App. 427, 502 \nS.W. 3d 530 (2016).  Furthermore, it is the Commission's duty to use its \nexperience and expertise in translating the testimony of medical experts \n\nTAYLOR - H009300  26\n  \n \n \ninto findings of fact and to draw inferences when testimony is open to more \nthan a single interpretation.  Id. \nAlthough the claimant admittedly injured her right shoulder on \nOctober 21, 2020, she was released at MMI by Dr. Charles Pearce on April \n18, 2022, after demonstrating an unreliable effort during her functional \ncapacity evaluation.  He released her to return to work at full duty with no \nimpairment, stating unequivocally: \nThe patient completed a functional \ncapacity evaluation on April 6, \n2022.  She gave an unreliable \neffort only meeting 27 of 52 \nconsistency measures. She was \nplaced in at least the sedentary \nclassification of work. However, \nthis is not valid because of her \nunreliable effort. \n \nThe patient has reached maximum \nmedical improvement \n \nThe patient can return to regular \nwork duties without restriction \n \nThere is no indication for further \ndiagnostic testing and/or treatment \n \nThe patient has sustained 0% \npermanent partial impairment as it \npertains to her upper extremity. \n \nAlthough the claimant underwent an MRI on September 13, 2023, \nthis took place nearly a year and a half after reaching MMI.  The report from \nDr. Ezekiel Shotts reflected a “[t]iny” low-grade partial interstitial \n\nTAYLOR - H009300  27\n  \n \n \ninfraspinatus tear.  Based on this finding, Dr. Shields recommended an \northopedic consult with no indication the MRI findings were the cause of the \nclaimant’s complaints of pain in her shoulder and with no course of \ntreatment.  In fact, he gave no reasoning as to how this referral is causally \nrelated to the claimant’s 2020 injury. \nDr. Shields did not offer an opinion as to whether the right shoulder \ntear was a result of the claimant’s 2020 injury or whether there was a later, \nintervening injury after the claimant reached MMI.  There is no way to \ndetermine the source of this tear which was not discovered until nearly a \nyear and a half after the claimant reached MMI and nearly three years after \nthe accident in question.   \nDr. Shotts and Dr. Shields provided no unequivocal statements that \nthe claimant’s right shoulder tear, which was discovered nearly three years \nafter the claimant’s initial injury, was the source of her alleged pain. \nHowever, Dr. Pearce was firm in his statement that the claimant did not \nrequire any further diagnostic treatment and had reached maximum medical \nimprovement as of April 18, 2022.  As a result, the claimant is not entitled to \nadditional medical treatment for her right shoulder injury.  \nAccordingly, for the reasons set forth above, I respectfully dissent.  \n \n \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner","preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H009300 KIMBERLY TAYLOR, EMPLOYEE CLAIMANT HINO MOTORS MFG. USA, INC., EMPLOYER RESPONDENT SOMPO AMERICA INSURANCE CO., INSURANCE CARRIER/TPA RESPONDENT OPINION FILED SEPTEMBER 19, 2024","fetched_at":"2026-05-19T22:29:45.054Z","links":{"html":"/opinions/full_commission-H009300-2024-09-19","pdf":"https://labor.arkansas.gov/wp-content/uploads/Taylor_Kimberly_H009300_20240919.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/"}}