{"id":"full_commission-H103080-2023-08-09","awcc_number":"H103080","decision_date":"2023-08-09","opinion_type":"full_commission","claimant_name":"Jimmy Foster","employer_name":"Booneville Human Development Center","title":"FOSTER VS. BOONEVILLE HUMAN DEVELOPMENT CENTER AWCC# H103080 AUGUST 9, 2023","outcome":"granted","outcome_keywords":["granted:1","denied:1"],"injury_keywords":["wrist","carpal tunnel","shoulder","back"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/Foster_Jimmy_H103080_20230809.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Foster_Jimmy_H103080_20230809.pdf","text_length":42179,"full_text":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n \nCLAIM NO.  H103080 \n \nJIMMY FOSTER, \nEMPLOYEE \n \nCLAIMANT \nBOONEVILLE HUMAN DEVELOPMENT \nCENTER, EMPLOYER \n \nRESPONDENT \nPUBLIC EMPLOYEE CLAIMS DIVISION, \nINSURANCE CARRIER/TPA \nRESPONDENT \n  \n      \nOPINION FILED AUGUST 9, 2023 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE JARID M. KINDER, Attorney at \nLaw, Fayetteville, Arkansas. \n \nRespondents represented by the HONORABLE CHARLES H. McLEMORE, \nJR., Attorney 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 February 9, 2023.  The \nadministrative law judge found that the claimant failed to prove his \ncardiovascular and right ulnar neuropathic conditions were compensable.  \nThe administrative law judge found that the claimant proved he was entitled \nto a period of temporary total disability benefits.  After reviewing the entire \nrecord de novo, the Full Commission finds that the claimant proved the \ndiagnosis of atrial fibrillation was a natural consequence of the \ncompensable COVID-19 condition sustained by the claimant.  We find that \n\nFOSTER - H103080  2\n  \n \n \nthe claimant did not prove the right ulnar neuropathic condition was a \nnatural consequence of the compensable injury.  The Full Commission finds \nthat the claimant did not prove he was entitled to additional temporary total \ndisability benefits.  The Full Commission finds that the claimant proved he \nsustained 10% permanent anatomical impairment as a result of the \ndiagnosis of atrial fibrillation.     \nI.  HISTORY \n Jimmy Glenn Foster, Sr., now age 68, testified that he had formerly \nbeen employed with the respondents, Booneville Human Development \nCenter.  The claimant testified on direct examination: \n  Q.  And what does BHDC do? \nA.  They take care of clients that is not able to take care of \ntheir self.  They feed them.  They take care of them.  They \nteach them how to work and they just work with clients that is \nnot privileged to be at home. \nQ.  What did you do for them? \nA.  I done the same thing.  I bathed them.  I shaved them.  I \nbrushed their teeth.  I made their beds.  We fed them.  We \nwashed their clothes.  We dried them and stuff like that.... \nQ.  Was your job at Booneville Health, was that a physical \njob? \nA.  Yes, sir....The physical part where we would strip the \nclient’s bed, remake them ourselves, mop and sweep the \nfloors, clean the toilets.  We would take their clothes down to \nlaundry and wash and dry them and fold them and put them \naway.  And make sure that they had food to eat at the time of \nfood and we would brush their teeth and shave them.... \nQ.  Now, out of an eight-hour workday, how much of that \nwould you spend on your feet working? \nA.  Pretty much the whole eight hours constantly being busy.   \n \n\nFOSTER - H103080  3\n  \n \n \n The parties stipulated that the employee-employer-carrier \nrelationship existed on July 31, 2020, and that the claimant “sustained a \ncompensable injury” on that date.  The claimant testified on direct \nexamination: \n  Q.  When did you contract COVID-19? \nA.  I want to say it was August.  That’s when I got tested and I \ntested positive at the facility.  And then we came to Fort Smith \nand done another testing under a big tent and they also tested \npositive.   \nQ.  How did you contract it? \nA.  COVID-19 had hit our facility through staff at first and then \nit spread to the clients.  And we had one client that – when I \ncame on duty that morning, we had one client that was \nquarantined and he had COVID and I had to take care of \nhim.... \nQ.  When did you start noticing symptoms? \nA.  About probably the last week in July and the first week in \nAugust.  I started losing my breath and feeling really bad.   \n \n According to the record, the claimant received emergency medical \ntreatment on August 8, 2020:  “Jimmy G. Foster, a 65 y.o. male presents to \nthe ED with a Chief Complaint of Shortness of Breath....65-year-old white \nmale with a history of seasonal rhinitis transferred from Waldron for COVID \npneumonia after he had been sick for approximately 8 days.”  The clinical \ndiagnoses were “Pneumonia due to COVID-19 virus (Primary)” and “Morbid \nobesity with BMI of 70 and over, adult.”   \n Dr. Monali Hanmant Patil reported on September 9, 2020: \nJimmy G. Foster is a 65 y. o. male admitted 8/8/2020 with \ncomplaints of shortness of breath.  Patient works [at] human \ndevelopment center in Booneville.  Patient had an exposure to \n\nFOSTER - H103080  4\n  \n \n \nCOVID patient couple 2 weeks ago.  Patient started having \nsymptoms about 8 to 9 days ago.  Patient tested positive for \nCOVID.  Symptoms started were getting worse with hypoxia \ncough low-grade fevers.  Patient presented to the ED.  He \nwas noted to be hypoxic.  He was initially started on BiPAP.  \nPatient was not tolerant of BiPAP he was switched to high \nflow nasal cannula.   \n \n Dr. Michael Morse prepared a Nerve Conduction & \nElectromyography Report on December 10, 2020, with the following \nconclusion:  “There is a moderately severe right median nerve entrapment \nat the wrist consistent with a clinical diagnosis of carpal tunnel syndrome.  \nThere is a mild nonlocalizing ulnar neuropathy.  EMG shows no active or \nchronic denervation.” \n Dr. Keith Bolyard noted on January 15, 2021: \nThe patient is 66 years old.  We are asked to see him via \nWorkers’ Compensation for his right shoulder.  He is \nstruggling through post-COVID hospitalization.... \nHe reports a normal right shoulder prior to COVID.  His \ncomplaints are that of a snapping of the right scapula and pain \nand weakness of the shoulder.   \nHe has been diagnosed with possible right cubital tunnel \nsyndrome, possible right carpal tunnel syndrome.  Though his \nsymptoms of carpal tunnel were not related today, numbness \nof the ulnar nerve distribution fingers was part of the symptom \ncomplex as well.... \nPHYSICAL EXAMINATION:  He has internal rotation almost \nequal on the right shoulder as he does the left.  He does have \na palpable snap at the inferior angle of the scapula with \ncertain range of motions.... \nX-RAY STUDIES:  X-rays today, 3 views of the right shoulder \nshow a large inferior humeral head osteophyte.... \nIMPRESSION:  1.  Right glenohumeral joint arthritis with \nstiffness. \n2.  Snapping scapula syndrome right.   \n\nFOSTER - H103080  5\n  \n \n \n \n Dr. Bolyard planned, “I think the scapula is probably more consistent \nwith a dyskinesis.  We will have him continue with home physical therapy \nthat he can do on his own checking with the physical therapist every couple \nof weeks, working on range of motion and strengthening....I tried to make it \nclear that his snapping scapula would not be a surgical intervention, but is \nprobably more related to muscle imbalance....No surgical intervention is \nplanned or contemplated.”     \n The claimant began treating with Dr. Julio F. Schwarz on February 1, \n2021: \n66-year-old white male who has been diagnosed as having \nparoxysmal atrial fibrillation.  Patient does not experience \nspecific symptoms with recurrence of atrial fibrillation.  He \ndoes complain of dyspnea on mild to moderate exertion, \nmoderate to severe in intensity, subsiding within 3 minutes \npost exercise cessation.  Patient describes no other \nassociated symptoms.  The only means to avoid such is to \nprevent this level of physical activity.... \nASSESSMENT AND RECOMMENDATIONS:   \n1.  Dyspnea on exertion. \n2.  Paroxysmal atrial fibrillation. \n3.  Essential hypertension. \n4.  Family history of heart disease. \n5.  Subarachnoid hemorrhage in August, 2020, of uncertain \netiology, residual right hemiparesis. \n6.  Overweight. \n7.  Residual right hemiparesis, ambulates with a walker.   \n \n Rhonda Murphy, Assistant Claims Determination Manager, \ncorresponded with the claimant on March 31, 2021: \n\nFOSTER - H103080  6\n  \n \n \nPublic Employee Claims Division (PECD) administers the \nworkers compensation benefits for AR Human Development \nCenter – Booneville. \nYour claim has been accepted as compensable based on \nyour positive COVID-19 medical status.  PECD will be \nresponsible for the authorized necessary and reasonable \nmedical treatment associated with this illness (if indicated).   \nThe total disability rate is based upon sixty-six and two-thirds \n(66 2/3%) of your average weekly wage at the time the \nexposure (sic).  Based on the wage information we have \nreceived, you will be entitled to receive TTD compensation in \nthe amount of $329.00 per week.  TTD compensation is \nbased on a seven day week. \nIt is my understanding that you received Director’s Leave pay \nthrough 1/8/2021.  A State Warrant for compensation benefits \nin the amount $3,948.00 representing payment for the period \nof 1/9/2021 through 4/2/2021 has been ordered.  You should \nreceive the warrant in the next seven to ten business days.... \nTemporary Total Disability (TTD) compensation will continue \nto be paid to you on a bi-weekly basis until you receive the \nrelease letter from AR Department of Health and return back \nto work.... \n \n A Human Resources Specialist informed the claimant on August 16, \n2021, “You are due for your five-year background checks.  Please fill out \nthe attached forms and bring back to Human Resources by Friday, \nSeptember 10, 2021 along with your driver’s license or photo ID.” \n An Assistant Personnel Manager corresponded with the claimant on \nOctober 25, 2021 and stated in part, “Your Background Checks with our \nfacility are currently out of date and in violation of Office of Long-Term Care \nregulations.  Please return the requested Background Check forms and \nupdated medical information by November 2, 2021 to prevent us from \nproceeding with termination.”     \n\nFOSTER - H103080  7\n  \n \n \nThe respondent-employer’s Director of Residential Services \ncorresponded with the claimant on November 30, 2021:  “This letter is to \ninform you that your employment with the Arkansas Department of Human \nServices is terminated effective November 30, 2021....Your resignation has \nbeen coded ‘Involuntary’ based on an internal investigation.” \nThe claimant testified on direct: \n Q.  Were you terminated from this position? \n A.  Yes, sir, I was. \nQ.  What was your understanding of why you were \nterminated? \nA.  From what I understand, refusing to go have an FBI \nbackground check because I wasn’t released from the doctor \nat that time. \nQ.  Did you go have the FBI background check done? \nA.  No, sir. \nQ.  Why did you not? \nA.  Because I was still under doctor’s care and wasn’t \nreleased to go back to work.   \n \n The claimant participated in a Functional Capacity Evaluation at \nFunctional Testing Centers, Inc. on April 26, 2022:  “Mr. Foster completed \nfunctional testing on this date with unreliable results....Overall, Mr. Foster \ndemonstrated the ability to perform work in at least the SEDENTARY \nclassification of work[.]”   \n In addition, an “IMPAIRMENT EVALUATION SUMMARY – Lower \nExtremity” was prepared at Functional Testing Centers, Inc. on April 26, \n2022: \n\nFOSTER - H103080  8\n  \n \n \nMr. Foster reports that he contracted COIVD-19 (sic) at work \nand was hospitalized with acute respiratory failure and had \nsubsequent placement on a ventilator.  He later had onset of \nskin breakdown in his Coccyx area with an open wound. \nDiagnosis:  Long term COVID 19 syndrome....Mr. Foster’s \nprimary complaint is shortness of breath with strenuous \nactivity.  He reports additional areas of pain that include:  right \nshoulder, low back and coccyx.  He also reports chest pain.   \nCo-morbidities include:  Hypertension.... \nWhen utilizing the Guides Table 8 (p. 162):  Classes of \nRespiratory Impairments:  Mr. Foster does have a class 2 \n(mild) impairment with a 10% Whole Person Impairment.   \n \n The claimant’s testimony indicated that he did not receive temporary \ntotal disability benefits after May 6, 2022.   \nRhonda Murphy corresponded with the claimant on May 17, 2022: \nWe have received a report from Rick Byrd indicating you have \nreached maximum medical benefit as of 4/26/2022. \nMr. Byrd also stated you have a 10% Permanent Partial \nImpairment for a mild ventilatory defect.  This impairment \nrating entitles you to 45 weeks of PPD benefits at the weekly \nrate of $247.00 for a total of $11,115.00.  PPD benefits are \npaid bi-weekly, and your first PPD payment will cover the \ndates 5/7/22 through 5/20/22.  You should receive this check \nin the next few days.  The PPD benefits will pay out on March \n17, 2023.... \n \n Dr. Sara L. Roberson reported on June 17, 2022:   \nJimmy G. Foster 10/16/1954 is a patient of mine at the family \nmedicine clinic in Waldron.  I have been this patient’s primary \ncare provider since 2014.  He is requesting this letter \nstatement concerning his ability to work.  This patient was \nhospitalized with severe COVID-pneumonia, he has had \ndeterioration in his health that has included diastolic heart \nfailure, pulmonary hypertension, paroxysmal A. fib and \nrespiratory failure.  He has had a great deal of trouble \nregaining his prior level of functioning.  I do not believe the \n\nFOSTER - H103080  9\n  \n \n \npatient will be able to return to work and should strongly \nconsider retirement at this time.   \n \n Dr. Terry Clark examined the claimant on September 26, 2022: \nJimmy’s primary problem is COVID.  The problem began on \n7/31/2020.  Additional History:  Pt contracted COVID while at \nwork.  He has had many complications from it.  He is here to \nreview FCE and IR results.   \nHe apparently contracted Covid-19 at work and had an \nextremely complicated course which included respiratory \nfailure, a small right-sided subarachnoid hemorrhage, a \ncoccygeal decubitus, atrial fibrillation and right ulnar nerve \nneuropathy.   \nHe had an FCE on 4/26/2022 which showed multiple \ninconsistencies and sub-maximal effort.  He is here today to \nreview those reports.  He is currently being treated for \npneumonia by his PCP, unrelated to the Covid.... \nMMI has been reached as of today’s date.  Agree with the \nimpairment rating of 10% whole person.  Due to \ninconsistencies on the FCE I am unable to determine work \nrestrictions.... \nMEDICAL CAUSATION \nThe cause of this problem is related to work activities.   \nRECOMMENDED WORK STATUS \nJimmy’s recommended work status is Regular Duty.  The \neffective date for this work status is 9/26/2022.   \n \n Dr. Clark diagnosed “1.  Acute respiratory failure with hypoxia.  2.  \nOther nontraumatic subarachnoid hemorrhage.  3.  Pressure ulcer of sacral \nregion, stage 4.”   \nA pre-hearing order was filed on October 6, 2022.  According to the \ntext of the pre-hearing order, the claimant contended, “1.  The claimant, \nJimmy Foster, sustained compensable injuries following a COVID-19 injury \non August 6, 2020 while working for Booneville Development Center in \n\nFOSTER - H103080  10\n  \n \n \nBooneville, Arkansas.  Said injuries, include, but are not limited to:  a \nrespiratory disorder, sacral wound, paroxysmal atrial fibrillation, dyspnea on \nexertion, essential hypertension, hypertensive heart disease, left ventricular \ndiastolic dysfunction, pulmonary hypertension, left ventricular dilation, trivial \nnonrheumatic mitral insufficiency trivial nonrheumatic tricuspid insufficiency, \na subarachnoid hemorrhage, and hemiparesis.  2.  Sara L. Roberson has \ntaken the claimant off work indefinitely due to his severe COVID-pneumonia \nand subsequent deterioration of health.  3.  To date, the claimant has only \nbeen released as at maximum medical improvement for his sacral wound \non September 27, 2021 and his lungs (mild ventilatory defect) [on] April 26, \n2022.  He remains in his healing period and has not been returned to work \nand thus contends he is owed temporary total disability benefits from May \n17, 2022 through a date yet to be determined.  4.  Due to the controversion \nof entitled benefits, the respondents are obligated to pay one half of the \nclaimant’s attorney’s fees.  5.  Claimant reserves the right to raise additional \ncontentions at the hearing of this matter.”   \n The respondents contended that “the claimant reported on August 5, \n2020 that he tested positive for COVID, with his last day at work being July \n31, 2020.  Respondent did accept this claim as compensable pursuant to \nArk. Code Ann. §11-9-601 (effective from March 11, 2020 and until May 1, \n2023) and respondent has provided benefits to or on behalf of the claimant \n\nFOSTER - H103080  11\n  \n \n \nfor this claim.  Respondent has provided reasonable and necessary medical \ntreatment for the claimant, including treatment with Dr. Terry Clark, Dr. \nDelilah Easom for wound care and Dr. Julio Schwarz, cardiac specialist.  \nThe claimant tested unreliably in the Sedentary classification of work at a \nFunctional Capacity Evaluation on April 26, 2022 with 13 of 53 consistency \nmeasures.  The claimant was paid his salary by his employer until January \n8, 2021 at which point the claimant was paid temporary total disability \nbenefits by the respondent from January 9, 2021 until May 6, 2022 when \nthe claimant was released at maximum medical improvement by his treating \nphysician, Dr. Terry Clark.  The claimant was assigned permanent \nanatomical impairment of 10% to the whole person which has been \naccepted by respondent and permanent partial disability benefits are being \npaid to the claimant for this impairment rating.  The claimant would not \nreturn to work and would not complete his mandatory background checks \nfor his job.  The claimant’s employment ended November 30, 2021.  The \nrespondents reserve the right to raise additional contentions, or to modify \nthose stated herein, pending the completion of discovery.”   \n The parties agreed to litigate the following issues: \n1.  Whether claimant is entitled to temporary total disability \nbenefits. \n2. Attorney’s fee.   \n \n\nFOSTER - H103080  12\n  \n \n \n After a hearing, an administrative law judge filed an opinion on \nFebruary 9, 2023.  The administrative law judge found that the claimant \nfailed to prove his “heart disease” and “right ulnar neuropathy” were \ncompensable conditions.  The administrative law judge found that the \nclaimant was entitled to a period of additional temporary total disability \nbenefits.  The claimant appeals to the Full Commission and the \nrespondents cross-appeal.   \nII.  ADJUDICATION \nA.   Natural Consequence \n1.   Atrial Fibrillation \nWhen the primary injury is shown to have arisen out of and in the \ncourse of employment, the employer is responsible for any natural \nconsequence that flows from that injury.  Nichols v. Omaha Sch. Dist., 2010 \nArk. App. 194, 374 S.W.3d 148.  The basic test is whether there is a causal \nconnection between the injury and the consequences of such.  Id.  The \nburden is on the employee to establish the necessary causal connection.  \nId.  Whether there is a causal connection is a question of fact for the \nCommission.  Jeter v. B.R. McGinty Mechanical, 62 Ark. App. 53, 968 \nS.W.2d 645 (1998).   \nAn administrative law judge found in the present matter, “2.  \nClaimant has failed to prove by a preponderance of the evidence that his \n\nFOSTER - H103080  13\n  \n \n \nheart disease was the result of his compensable illness from COVID-19.”  It \nis the Full Commission’s duty to enter findings in accordance with the \npreponderance of the evidence and not on whether there is substantial \nevidence to support the administrative law judge’s findings.  Roberts v. Leo \nLevi Hospital, 8 Ark. App. 184, 649 S.W.2d 402 (1983).  Preponderance of \nthe evidence means the evidence having greater weight or convincing \nforce.  Metropolitan Nat’l Bank v. La Sher Oil Co., 81 Ark. App. 269, 101 \nS.W.3d 252 (2003).  The Full Commission enters its own findings in \naccordance with the preponderance of the evidence.  Tyson Foods, Inc. v. \nWatkins, 31 Ark. App. 230, 792 S.W.2d 348 (1990).   \nThe Full Commission finds in the present matter that the claimant’s \natrial fibrillation and associated diagnoses were a natural consequence of \nthe compensable injury.  The claimant was employed for several years with \nthe respondents, Booneville Human Development Center.  The evidence \ndoes not demonstrate that the claimant had been treated for atrial fibrillation \nprior to the compensable injury.  The parties stipulated that the claimant \nsustained a compensable injury on July 31, 2020.  The claimant testified \nthat he contracted COVID-19 while performing employment services for the \nrespondents.  The claimant was indeed clinically diagnosed with \n“Pneumonia due to COVID-19 virus (Primary)” on August 8, 2020.   \n\nFOSTER - H103080  14\n  \n \n \nThe claimant received emergency treatment and extended in-patient \nresidential treatment as a result of contracting COVID-19 in the \nrespondents’ workplace.  Dr. Schwarz, a cardiologist, diagnosed \n“Paroxysmal atrial fibrillation” on February 1, 2021.  The Full Commission \nagain notes from the record that the claimant had not been diagnosed with \natrial fibrillation prior to contracting COVID-19 in the workplace.  Dr. \nRoberson reported on June 17, 2022, “This patient was hospitalized with \nsevere COVID-pneumonia, he has had deterioration in his health that has \nincluded diastolic heart failure, pulmonary hypertension, paroxysmal A. fib \nand respiratory failure [emphasis supplied].”  The Commission is authorized \nto accept or reject medical opinions, and our resolution of the medical \nevidence has the force and effect of a jury verdict.  Estridge v. Waste \nManagement, 343 Ark. 276, 33 S.W.3d 167 (2000).  The Full Commission \nin the present matter accepts Dr. Roberson’s June 17, 2022 report as \nmedical evidence demonstrating that the claimant’s diastolic heart failure \nand atrial fibrillation were natural consequences of the compensable \nCOVID-19 condition suffered by the claimant.  Dr. Roberson’s causation \nopinion is further supported by Dr. Clark’s report on September 26, 2022, \n“He apparently contracted Covid-19 at work and had an extremely \ncomplicated course which included respiratory failure, a small right-sided \n\nFOSTER - H103080  15\n  \n \n \nsubarachnoid hemorrhage, a coccygeal decubitus, atrial fibrillation and right \nulnar nerve neuropathy [emphasis supplied].”   \nThe Full Commission finds that the claimant proved the diagnosis of \natrial fibrillation was a natural consequence of the compensable COVID-19 \ncondition sustained by the claimant in the workplace.  We therefore find that \nthe treatment of record for same was reasonably necessary in accordance \nwith Ark. Code Ann. §11-9-508(a)(Repl. 2012).     \n2.   Right Ulnar Neuropathy \nAn administrative law judge found, “3.  Claimant has failed to prove \nby a preponderance of the evidence that his right ulnar nerve neuropathy \nwas the result of his compensable illness from COVID-19.”  The Full \nCommission affirms this finding.  As we have discussed, the parties \nstipulated that the claimant sustained COVID-19 in the respondents’ \nworkplace on or about July 31, 2020.  The record indicates that the claimant \nsubsequently received an extensive course of inpatient residential \ntreatment.  Dr. Morse performed electrodiagnostic testing on December 10, \n2020 and concluded, “There is a moderately severe right median nerve \nentrapment at the wrist consistent with a clinical diagnosis of carpal tunnel \nsyndrome.”  It is within the Commission’s province to weigh all of the \nmedical evidence and to determine what is most credible.  Minnesota \nMining & Mfg. v. Baker, 337 Ark. 94, 989 S.W.2d 151 (1999).  In the present \n\nFOSTER - H103080  16\n  \n \n \nmatter, there is no probative evidence demonstrating that Dr. Morse’s \ndiagnosis of carpal tunnel syndrome was causally related to the claimant’s \nCOVID-19 condition.  Nor did Dr. Morse opine that the clinical diagnosis of \nright carpal tunnel syndrome was causally related to COVID-19 contracted \nby the claimant.   \nDr. Bolyard noted on January 15, 2021 that the claimant reported a \n“snapping of the right scapula and pain and weakness of the shoulder.”  Dr. \nBolyard’s impression was “1.  Right glenohumeral joint arthritis with \nstiffness.  2.  Snapping scapula syndrome, right....I think the scapula is \nprobably more consistent with a dyskinesis....No surgical intervention is \nplanned or contemplated.”  The evidence does not demonstrate that \nglenohumeral joint arthritis, snapping scapula syndrome, or dyskinesis were \nin any way causally related to the compensable COVID-19 illness suffered \nby the claimant.  Nor is there any probative evidence demonstrating that the \nclaimant sustained right ulnar neuropathy as a result of treatment provided \nat any time on or after July 31, 2020.  The Full Commission therefore \naffirms the administrative law judge’s finding that the claimant did not prove \n“his right ulnar neuropathy was the result of his compensable illness from \nCOVID-19.”  The claimant did not prove by a preponderance of the \nevidence that the diagnosed condition of right ulnar neuropathy was a \nnatural consequence of the compensable injury.  Treatment for right ulnar \n\nFOSTER - H103080  17\n  \n \n \nneuropathy was not reasonably necessary in accordance with Ark. Code \nAnn. §11-9-508(a)(Repl. 2012).     \nB.   Temporary Disability \nTemporary 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 the 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). \nAn administrative law judge found in the present matter, “4.  \nClaimant has met his burden of proving that he is entitled to temporary total \ndisability benefits from May 7, 2022 through September 26, 2022.”  The Full \nCommission does not affirm this finding.  The parties stipulated that the \nclaimant sustained a compensable injury on or about July 31, 2020.  The \ncompensable injury sustained by the claimant was COVID-19, contracted \n\nFOSTER - H103080  18\n  \n \n \nby the claimant in the workplace.  The claimant testified that he did not work \nfor the respondents after approximately July 31, 2020.  Correspondence \nfrom an Assistant Claims Determination Manager indicated that the \nclaimant received “Director’s Leave pay” through January 8, 2021.  The \nrecord indicates that the claimant was paid temporary total disability \nbenefits for the period beginning January 9, 2021 and continuing through at \nleast April 2, 2021.  On August 16, 2021, a Human Resources Specialist \nasked the claimant to complete a series of background checks in order to \ncontinue his employment with the respondents.  The claimant testified that \nhe did not comply with this request, “Because I was still under doctor’s care \nand wasn’t released to go back to work.”  The respondents therefore \nterminated the claimant’s employment effective November 30, 2021.   \nThe claimant participated in a Functional Capacity Evaluation on \nApril 26, 2022:  “Mr. Foster completed functional testing on this date with \nunreliable results....Overall, Mr. Foster demonstrated the ability to perform \nwork in at least the SEDENTARY classification of work[.]”  An \n“IMPAIRMENT EVALUATION SUMMARY” prepared on April 26, 2022 \nindicated, “When utilizing the Guides Table 8 (p. 162):  Classes of \nRespiratory Impairments:  Mr. Foster does have a class 2 (mild) impairment \nwith a 10% Whole Person Impairment.”  The claimant testified that he did \nnot receive temporary total disability benefits after May 6, 2022.  The \n\nFOSTER - H103080  19\n  \n \n \nrespondent-carrier informed the claimant on May 17, 2022 that it accepted \n“a 10% Permanent Partial Impairment for a mild ventilatory defect.”     \nThe claimant contends on appeal that he is entitled to temporary \ntotal disability benefits from May 7, 2022 through September 26, 2022.  The \nFull Commission finds that the claimant did not prove he remained within a \nhealing period or was totally incapacitated from earning wages at any time \nafter April 26, 2022.  We note that the claimant was assigned a permanent \nanatomical impairment on April 26, 2022.  Permanent impairment is any \nfunctional or anatomical loss remaining after the healing period has been \nreached.  Johnson v. Gen. Dynamics, 46 Ark. App. 188, 878 S.W.2d 411 \n(1994).  Temporary total disability cannot be awarded after the healing \nperiod has ended.  Elk Roofing Co. v. Pinson, 22 Ark. App. 191, 737 \nS.W.2d 661 (1987).   \nThe evidence does not demonstrate that the claimant remained \nwithin a healing period or re-entered a healing period at any time after April \n26, 2022.  We recognize Dr. Roberson’s note on June 17, 2022, “I do not \nbelieve the patient will be able to return to work and should strongly \nconsider retirement at this time.”  The Full Commission finds that Dr. \nRoberson’s June 17, 2022 report was describing a permanent condition and \ncannot reasonably be interpreted as evidence demonstrating that the \nclaimant remained within a healing period related to the compensable \n\nFOSTER - H103080  20\n  \n \n \ninjury.  We also recognize Dr. Clark’s conclusion on September 26, 2022, \n“MMI has been reached as of today’s date.”  The Commission has the \nauthority to accept or reject a medical opinion and the authority to \ndetermine its medical soundness and probative force.  Green Bay \nPackaging v. Bartlett, 67 Ark. App. 332, 999 S.W.2d 692 (1999).  In the \npresent matter, the Full Commission places minimal evidentiary weight on \nDr. Clark’s conclusion that “MMI has been reached” as of September 26, \n2022.  The record instead demonstrates that the claimant was as far \nrestored as the permanent character  of his injury would permit no later than \nApril 26, 2022.  See Harvest Foods, supra.  The evidence does not \ndemonstrate that the claimant remained within a healing period or re-\nentered a healing period at any time after April 26, 2022.  The claimant \ntherefore did not prove that he was entitled to additional temporary total \ndisability benefits.         \nC.  Permanent Impairment \nFinally, permanent impairment is any functional or anatomical loss \nremaining after the healing period has been reached.  Johnson, supra.  The \nCommission has adopted the American Medical Association Guides to the \nEvaluation of Permanent Impairment (4\nth\n ed. 1993) to be used in assessing \nanatomical impairment.  See Commission Rule 34; Ark. Code Ann. §11-9-\n522(g)(Repl. 2012).  It is the Commission’s duty, using the Guides, to \n\nFOSTER - H103080  21\n  \n \n \ndetermine whether the claimant has proved he is entitled to a permanent \nanatomical impairment.  Polk County v. Jones, 74 Ark. App. 159, 47 S.W.3d \n904 (2001). \nAny determination of the existence or extent of physical impairment \nshall be supported by objective and measurable physical findings.  Ark. \nCode Ann. §11-9-704(c)(1)(Repl. 2012).  Objective findings are those \nfindings which cannot come under the voluntary control of the patient.  Ark. \nCode Ann. §11-9-102(16)(A)(i)(Repl. 2012).  Although it is true that the \nlegislature has required medical evidence supported by objective findings to \nestablish a compensable injury, it does not follow that such evidence is \nrequired to establish each and every element of compensability.  Stephens \nTruck Lines v. Millican, 58 Ark. App. 275, 950 S.W.2d 472 (1997).  All that \nis required is that the medical evidence be supported by objective medical \nfindings.  Singleton v. City of Pine Bluff, 97 Ark. App. 59, 244 S.W.3d 709 \n(2006).  Medical opinions addressing impairment must be stated within a \nreasonable degree of medical certainty.  Ark. Code Ann. §11-9-\n102(16)(B)(Repl. 2012). \nPermanent benefits shall be awarded only upon a determination that \nthe compensable injury was the major cause of the disability or impairment.  \nArk. Code Ann. §11-9-102(F)(ii)(a)(Repl. 2012).  “Major cause” means \n“more than fifty percent (50%) of the cause,” and a finding of major cause \n\nFOSTER - H103080  22\n  \n \n \nmust be established according to the preponderance of the evidence.  Ark. \nCode Ann. §11-9-102(14)(Repl. 2012). \nIn the present matter, the Full Commission finds that the claimant \nproved that he is entitled to a 10% permanent anatomical impairment \nrelated to his compensable atrial fibrillation.  The Full Commission has \ndetermined that the atrial fibrillation diagnosed by Dr. Schwarz was a \nnatural consequence of the compensable injury sustained by the claimant \non or about July 31, 2020.  Dr. Schwarz reported on April 4, 2022 that his \ndiagnosis included “1.  Paroxysmal atrial fibrillation.”  Dr. Schwarz noted \nthat an echocardiogram showed “Ejection Fraction:  60%.”  Dr. Schwarz \nreported that the claimant displayed “2.  Dyspnea on exertion.”   \nThe 4\nth\n Edition of the Guides, p. 6/195, Table 12, Class 2, provides \nfor a “10-29% impairment of the whole person.”  The Full Commission finds \nthat the claimant proved he sustained permanent anatomical impairment in \nthe amount of 10% as a result of the compensable atrial fibrillation \nsustained by the claimant.  The record indicates that the claimant “is \nasymptomatic during daily activities.\"  The surveillance evidence before the \nCommission demonstrates that the claimant is able to perform daily \nactivities such as drive a vehicle, shop, and occasionally preach and lead \nmusic at his local church.  A cardiac arrhythmia was documented by ECG \nas reported by Dr. Schwartz.  In addition, the claimant’s treating physicians \n\nFOSTER - H103080  23\n  \n \n \nhave recommended a dietary adjustment and have prescribed the use of \ndrugs to treat the compensable atrial fibrillation.   \nWith regard to atrial fibrillation, which was a natural consequence of \nthe compensable injury, the Full Commission finds that the claimant proved \nby a preponderance of the evidence that he sustained a 10% permanent \nanatomical impairment in accordance with the 4\nth\n Edition of the Guides, p. \n6/195, Table 12, Class 2.  The existence of 10% permanent anatomical \nimpairment is supported by objective medical findings confirmed on \ndiagnostic testing as reported by Dr. Schwarz.  The claimant also proved \nthat the compensable injury was the major cause of the 10% permanent \nanatomical impairment resulting from atrial fibrillation.   \nAfter reviewing the entire record de novo, the Full Commission finds \nthat the claimant proved the diagnosis of atrial fibrillation was a natural \nconsequence of the compensable COVID-19 condition sustained by the \nclaimant.  We find that the claimant did not prove the right ulnar neuropathic \ncondition was a natural consequence of the compensable injury.  The Full \nCommission finds that the claimant did not prove he was entitled to \nadditional temporary total disability benefits.  We find that the claimant \nproved he sustained 10% permanent anatomical impairment as a result of \nthe diagnosis of atrial fibrillation.  Said 10% permanent anatomical \n\nFOSTER - H103080  24\n  \n \n \nimpairment is in addition to the 10% rating accepted and paid by the \nrespondents with regard to respiratory impairment.   \nThe Full Commission denies the respondents’ motion to strike the \nclaimant’s appeal brief.  We advise the parties that, in performing a \nstatutory de novo review, the Full Commission has considered solely and \nexclusively the testimony and evidence submitted to the administrative law \njudge on December 6, 2022.  We have not relied on or considered any “new \nevidence” cited in the claimant’s briefs on appeal.  The claimant’s attorney \nis entitled to fees for legal services in accordance with Ark. Code Ann. §11-\n9-715(a)(Repl. 2012).  For prevailing in part on appeal, the claimant’s \nattorney is entitled to an additional fee of five hundred dollars ($500), \npursuant to Ark. Code Ann. §11-9-715(b)(Repl. 2012). \nIT IS SO ORDERED.     \n \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner \n \n \n \nCommissioner Mayton dissents. \n \nDISSENTING OPINION \n \n\nFOSTER - H103080  25\n  \n \n \nI must respectfully dissent from the Majority’s determination that the \nclaimant’s atrial fibrillation is a compensable consequence of the claimant’s \ncompensable July 31, 2020 COVID-19 infection. \nWhat constitutes a compensable, or natural, consequence under the \nAct is well settled.  Arkansas Code Annotated § 11-9-508(a) requires an \nemployer to provide an injured employee such medical services as may be \nreasonably necessary in connection with the injury received by the \nemployee.  As highlighted by the Majority, when the primary injury is shown \nto have arisen out of and in the course of employment, the employer is \nresponsible for any natural consequence that flows from that injury.  Nichols \nv. Omaha Sch. Dist., 2010 Ark. App. 194, 374 S.W.3d 148 (2010). \nHowever, for this rule to apply, the basic test is whether there is a causal \nconnection between the injury and its alleged consequences. Id.  The \nburden is on the employee to establish the necessary causal connection. Id. \nWhether a causal connection exists between two episodes is a question of \nfact for the Commission.  Jeter v. B.R. McGinty Mech., 62 Ark. App. 53, 968 \nS.W.2d 645 (1998). \nWhile it is the Commission’s duty use its expertise to determine the \nsoundness of medical evidence and to translate it into findings of fact and \nhas authority to accept or reject a medical opinion and to determine its \nmedical soundness and probative force, “[s]peculation and conjecture \n\nFOSTER - H103080  26\n  \n \n \ncannot substitute for credible evidence.”  Hamilton v. Gregory Trucking, 90 \nArk. App. 248, 205 S.W.3d 181 (2005); Smith-Blair, Inc. v. Jones, 77 Ark. \nApp. 273, 72 S.W.3d 560 (2002); Oak Grove Lumber Co. v. Highfill, 62 Ark. \nApp. 42, 968 S.W.2d 637 (1998).    \n On February 1, 2021, Dr. Julio Schwartz, a cardiologist with Mercy \nClinic Cardiology, determined that the claimant suffered from atrial \nfibrillation.  (Resp. Ex. 1, P. 56).  A year later, on February 15, 2022, FNP \nGayla Johnson recommended a 72-hour Holter monitor to assess \nclaimant’s cardiac rate and rhythm, stating that the claimant “does have a \nhistory of atrial fibrillation and he is not on an anticoagulation.” (Cl. Ex. 1, P. \n83).  At that time, the claimant presented with atrial fibrillation, “hypertensive \nheart disease, pulmonary hypertension, left ventricular diastolic dysfunction, \nleft atrial dilation, [and] mitral and tricuspid regurgitation;” however, his \ncondition was stable. Id.  Claimant once again presented to Dr. Schwartz on \nMarch 28, 2022.  (Cl. Ex. 1, P. 92).  Dr. Schwartz reported that the claimant \nhas a family history of heart disease\n1\n. Id.  Neither FNP Johnson nor Dr. \nSchwartz, both cardiac specialists, attributed the claimant’s heart \ncomplaints to his COVID-19 infection.  Dr. Schwartz, the only cardiologist \nwho treated the claimant, did not assess a permanent impairment rating for \n \n1\n As noted by the ALJ in his December 2022 opinion, there is an additional entry \nfrom Dr. Schwartz dated April 1, 2022.  It is unclear from the record whether the \nclaimant attended two visits with Dr. Schwartz. \n\nFOSTER - H103080  27\n  \n \n \nthe claimant’s atrial fibrillation and stated in his report dated February 1, \n2021 that the “[p]atient does not experience specific symptoms with \nrecurrence of atrial fibrillation.” Id.  Based on the findings of Dr. Schwartz, \nthe claimant is not entitled to a permanent impairment rating for his atrial \nfibrillation even if it is determined for the purposes of argument it is a \ncompensable consequence of his work-related injury. \nThe majority has based its finding that the claimant’s atrial fibrillation \nis related to his work injury on the reports of claimant’s family practitioner, \nDr. Sara Roberson, and an occupational medicine specialist, Terry Clark, \nrather than the treating cardiologist.  Neither Dr. Roberson nor Dr. Clark \never stated within a reasonable degree of medical certainty as required by \nour Act that the claimant’s atrial fibrillation was the result of his work-related \ninjury.  “[A] compensable injury must be established by medical evidence \nsupported by objective findings.  Medical opinions addressing \ncompensability must be stated within a reasonable degree of medical \ncertainty.”  Ark. Code Ann. § 11-9-102(16)(B); Smith-Blair, Inc. v. Jones, 77 \nArk. App. 273, 72 S.W.3d 560 (2002).  Again, “[s]peculation and conjecture \ncannot substitute for credible evidence.” Id.  In fact, Drs. Roberson and \nClark merely noted in their reports that the claimant had atrial fibrillation \nwithout stating the condition was related to or caused by his COVID-19 \ndiagnosis. \n\nFOSTER - H103080  28\n  \n \n \nNot one physician who has treated the claimant has stated within a \nreasonable degree of medical certainty that the claimant’s atrial fibrillation is \nrelated to or is the result of his compensable injury or that he sustained any \npermanent impairment as a result of his atrial fibrillation.  Speculation and \nconjecture cannot substitute for credible evidence.  There is no credible \nevidence that the claimant’s atrial fibrillation is work related or that this \ncondition has caused any permanent impairment.  To find otherwise is \nspeculation and conjecture by the Commission. \nFor the reasons stated above, I respectfully dissent. \n \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner","preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H103080 JIMMY FOSTER, EMPLOYEE CLAIMANT BOONEVILLE HUMAN DEVELOPMENT CENTER, EMPLOYER RESPONDENT PUBLIC EMPLOYEE CLAIMS DIVISION, INSURANCE CARRIER/TPA RESPONDENT OPINION FILED AUGUST 9, 2023","fetched_at":"2026-05-19T22:29:46.173Z","links":{"html":"/opinions/full_commission-H103080-2023-08-09","pdf":"https://labor.arkansas.gov/wp-content/uploads/Foster_Jimmy_H103080_20230809.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/"}}