{"id":"full_commission-H108467-2023-03-23","awcc_number":"H108467","decision_date":"2023-03-23","opinion_type":"full_commission","claimant_name":"Samuel Perez","employer_name":"Cargill, Inc","title":"PEREZ VS. CARGILL, INC. AWCC# H108467 MARCH 24, 2023","outcome":"denied","outcome_keywords":["denied:1"],"injury_keywords":["shoulder","repetitive","back","neck"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/Perez_Samuel_H108467_20230323.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Perez_Samuel_H108467_20230323.pdf","text_length":30201,"full_text":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n \nCLAIM NO.  H108467 \n \nSAMUEL PEREZ, \nEMPLOYEE \n \nCLAIMANT \nCARGILL, INC.,  \nEMPLOYER \n \nRESPONDENT \nOLD REPUBLIC INSURANCE COMPANY, \nINSURANCE CARRIER/TPA \nRESPONDENT \n  \n      \nOPINION FILED MARCH 24, 2023 \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 LAURA J. PEARCE, \nAttorney at Law, Fort Smith, Arkansas. \n \nDecision of Administrative Law Judge:  Reversed. \n \n \n OPINION AND ORDER \nThe claimant appeals an administrative law judge’s opinion filed \nAugust 25, 2022.  The administrative law judge found that the claimant \nfailed to prove he sustained a compensable injury.  After reviewing the \nentire record de novo, the Full Commission reverses the administrative law \njudge’s opinion.  The Full Commission finds that the claimant proved by a \npreponderance of the evidence that he sustained a compensable injury to \nhis right shoulder which was caused by rapid repetitive motion.   \nI.  HISTORY \n\nPEREZ - H108467   2\n  \n \n \n The record indicates that Samuel Perez, now age 45, became \nemployed with the respondents, Cargill, in August 2018.  The respondents’ \nattorney examined the claimant at a deposition of record: \nQ.  So when you were hired by Cargill, what were you hired to \ndo?  What was your job to be? \nA.  My responsibilities? \nQ.  Yes. \nA.  I was working in evis.  I worked for evis.  Evis is what it is \ncalled.   \nQ.  Okay.  When you went to work, what did you actually do?  \nWhat jobs did you actually perform? \nA.  From the time that I started? \nQ.  Sure. \nA.  It’s called three points in evis.... \nQ.  So when you get to work and you clock in, what is the first \nthing that you do? \nA.  I put on my gloves and I go to the line.   \nQ.  Okay.  And what do you do on the line? \nA.  We are doing the rotation. \nQ.  Okay.  How many different stations are there in the \nrotation? \nA.  There, there is two....But when there is not enough \npeople, there is three.   \nQ.  And was this the job that you were doing when you were \ninjured? \nA.  No.   \nQ.  Okay.  How about when you were injured, what job were \nyou doing? \nA.  I was hanging the turkeys that go to the chiller.   \nQ.  And how long had you been assigned to do that job? \nA.  When I started.   \nQ.  When did you start hanging turkeys? \nA.  When I started.  I did that for about two years there in \nevis.... \nQ.  Can you describe for me, can you paint me a picture of \nwhat that looks like, like what your job looked like? \nA.  In evis? \nQ.  This job we are talking about, the hanging the turkeys, \nwalk me through what your day looked like.   \n\nPEREZ - H108467   3\n  \n \n \nA.  So, when I get there at evis, I am hanging them by their \nheads.   \nQ.  And how high is the line that you are hanging them on? \nA.  More or less around here, about this high (indicating).   \nQ.  And the way you moved your hand, your are pointing at \nabout chest height? \nA.  Yes.   \nQ.  And where are you picking the turkeys up before you hang \nthem on the line? \nA.  Off of the band.  There is a belt that comes by.   \nQ.  And how high is the belt? \nA.  About this table height.... \nQ.  And when you show up that day and you start hanging the \nturkeys, is that the only job that you do for the entire day? \nA.  Well, you are there for an hour hanging them by their \nheads because to do that you have to grab them and pull \nthem and put them up on the hook.   \nQ.  And then after that hour, what do you do? \nA.  And after that hour, we switch off to hang by the feet and \nthen the head again.   \nQ.  And is your portion of that job different when you hang \nthem by the feet than when you hang them by the head? \nA.  Yes....When we are hanging them by the feet, they put a \nbench that we have to be on top of to be able to pull the \nturkeys and then flip them over to hang them by their feet.... \nQ.  So someone at the first station is hanging turkeys by their \nheads and then the next station you are standing on a bench \nand you are taking the feet and you are also putting them up, \nhanging them up by their feet and their head at the same \ntime? \nA.  Yes.... \nQ.  And then after you hang them by their feet for an hour, do \nyou go back to hanging them by their head or do you do a \ndifferent job? \nA.  You go back to hanging by the head.   \nQ.  So when you said three point, when you are doing the \nthree-point job, is it because there is the two feet and the \nhead and then they are hanging by three points? \nA.  Yes.   \n \n\nPEREZ - H108467   4\n  \n \n \n The parties stipulated that the employee-employer-carrier \nrelationship existed on June 28, 2021.  The respondents’ attorney \nexamined the claimant at deposition: \nQ.  So what were you doing that day before you noticed that \nyou were hurting? \nA.  Oh, well, that day I was hanging, hanging birds, and I \nstarted to feel a heat in my chest and then around here \n(indicating), but, you know, I had been working and hanging \nthem all day.... \nQ.  So what parts of your body were hurting that day? \nA.  The hands, elbows, up here (indicating), and the back of \nmy neck.... \nQ.  Are you pointing to your shoulders? \nA.  Yes.... \nQ.  Was one side worse than the other? \nA.  Yes, the right side.... \nQ.  So would you have to lift a turkey and then turn in order to \nhang it or would you just lift it off the band and put it right up \non the line? \nA.  You have to turn.... \nQ.  And how quickly are they coming?  In that hour, how many \nturkeys would you say you hang by the head? \nA.  Well, honestly, to be really honest, I was just looking at the \nline, so that is all I know.   \nQ.  So if you are only at that station for one hour, hanging the \nturkeys by their head for an hour, would you hang 20 turkeys \nduring that time?  Would you hang 80 turkeys during that \ntime?  Can you give me an idea? \nA.  Well, I think in an hour, maybe 500.   \nQ.  And is that the same when you are taking them and \nflipping their feet up? \nA.  Yes.  It is just one line.... \nQ.  Let’s say before the month of June, had you had problems \nwith your shoulders before that? \nA.  So from three points, they changed me over to the chiller \nand that is when I started hurting.   \nQ.  Why did they change you over to the chiller? \nA.  They moved me to a position called utility.   \nQ.  Why? \n\nPEREZ - H108467   5\n  \n \n \nA.  Well, the utility position, you go around, you are sweeping \nor hanging or you can do any job there.... \nQ.  So in January of 2021, you start doing the utility position.  \nOther than the three-point area, what other types of jobs did \nyou do? \nA.  Well, when they first changed me over from three points, I \nwas in that department – what is it called – they transferred \nme to a department called all dock and that is where I was \nworking before shipping.   \nQ.  And what did you do in all dock? \nA.  I was there and I was moving the turkeys off of the truck to \ngo to deboning....In the chiller is where the turkeys are hung \nthat are going to be deboned.   \nQ.  Okay.  And is the equipment and the process different if \nyou are hanging turkeys in the chiller than what you’ve \nalready explained to me for three points? \nA.  Yes.  It is similar.   \nQ.  Okay.  Do the turkeys move faster or slower or is it about \nthe same? \nA.  Faster.  Faster.   \nQ.  And how long did you work in the chiller? \nA.  Well, from the time they took me off palleting until I was \nhurt.... \nQ.  So what is different about the chiller than what you \nexplained to me about three points? \nA.  So in the three points, you have to bend over to grab the \nchicken and then hang it up and in the chiller you don’t bend \nover.  So there, all the turkeys are already in a pile and you \njust have to find a leg and pull it up.... \nQ.  So the turkeys are in a big pile on this moving belt? \nA.  Yes.... \nQ.  Do you have a requirement – did you have a requirement \nto hang a certain number of turkeys in a period of time? \nA.  Yes.   \nQ.  And what was that number? \nA.  So there were four of us working, so you had to grab one \nand leave three, and then grab one and leave three.... \nQ.  So before you were switched over to the chiller, had you \nnoticed any pain in any of your body parts that you are \ncomplaining of today? \nA.  No.  No.  It wasn’t until I was in the chiller.   \n\nPEREZ - H108467   6\n  \n \n \nQ.  And then one day you were working in the chiller and then \nall of a sudden everything started to hurt? \nA.  Yes.     \n \n The claimant’s attorney examined the claimant at hearing: \nQ.  Now, before you got injured when you were working on \nthe chiller line, is there a quota?  Do you have to do a certain \nnumber of turkeys? \nA.  They have a goal, so many turkeys per day.   \n \n According to the record, the claimant treated at Cargill Health \nServices on July 9, 2021: \nPain in bilateral shoulders, arms including elbows, hands and \nfingers with tingling in small fingers and lateral hands and \nlower arms to elbow; No change.... \nDate/time of injury or onset of illness:  06-28-2021.... \nWork related?  Yes.... \nWhere the injury/illness occurred:  Debone/Rehang... \nWhat object or substance directly harmed the employee?  \nHanging turkeys.... \n•  OCC WC, Reduced Count to 50% of regular job dated:  07-\n07-2021 – 07-21-2021.... \n \n The claimant was treated with ice and medication.  It was noted, \n“Return to work at 50% RDCNT.”  The claimant continued to follow up at \nCargill Health Services.  It was noted on July 21, 2021, “He reports he has \nnot been working at a rdcnt as instructed, all the time and relates the new \npain to working rehang.  He has been coming to Health Services \nTreatments and taking medications as taught.  He voices concerns \nregarding his current position.”  It was noted, “What object or substance \ndirectly harmed the employee?  Hanging turkeys.”   \n\nPEREZ - H108467   7\n  \n \n \n It was noted on July 22, 2021, “EE instructed to go to Arkansas \nOccupational Health Clinic.”     \nThe record contains a CORRECTIVE ACTION/DISCIPLINE NOTICE \npresented on or about July 23, 2021: \n Samuel, \nOn 7/7, you were placed on restrictions of 50%.  On 7/9 and \n7/16, you were noticed not following your restrictions.  You \nhave been verbally communicated by your trainer, medical, \nand our supervisors to follow your piece count multiple times \n(see documentation).  By not following your restrictions, this \nwill not allow your body to feel better with the ESI you \nreceived on 7/7.   \nRestrictions must be followed at all times.  Not following \nrestrictions will lead towards additional disciplinary action....   \n \n Stephanie Dishman noted at Cargill Health Services on July 26, \n2021, “EE returns to work to report increased pain and bruise (appears to \nbe 2 to 3 days old) in area just below the right scapula.  Continued pain to \nBUE including shoulders and elbows with tingling to bilateral 5\nth\n digit.  He \nhas not worked since Wednesday, 07/21/2021....EE instructed to go to \nArkansas Occupational Health Clinic once he leaves Health Services.”   \n Additionally, a Nurse Practitioner reported on July 26, 2021: \nPatient states that he is concerned about a bruise that has \ndeveloped to the right side of his ribs.  Both elbows, pinky \nfingers and traps have slightly improved.   \nDiagnosis/Treatment rendered: \n1.  Unspecified disturbance of skin. \n2.  Pain in right elbow. \n3. Pain in left elbow.... \n \n\nPEREZ - H108467   8\n  \n \n \nThe claimant can return to work on 07/26/2021 with the \nfollowing temporary restrictions: \nAvoid repetitive bending and extending both elbows. \nUse gel guards as needed.   \nNo push, pull, lift more than 10 lbs.   \n \n The respondents terminated the claimant’s employment on or about \nJuly 27, 2021.  The claimant’s termination was related to excessive and \nunauthorized absences from the workplace.  \n Dr. Miles M. Johnson provided a Neurological \nEvaluation/Electrodiagnostic Report on August 17, 2021: \nPatient is a 44-year-old right-handed male with a 3-month \nhistory of medial elbow pain bilaterally.  He has numbness \nand tingling in the fourth and fifth digits and medial palm in the \nright greater than left hand.  There is some grip weakness.  \nDoes have some neck pain but denies any radiation.  Patient \nhas been to Dr. Berestnev and is referred for electrodiagnostic \ntesting of the bilateral upper extremity.... \nSUMMARY:  Bilateral median motor studies are normal.  \nUlnar elbow conduction velocities are decreased bilaterally \nrecording over the ADM and FDl.  Median and ulnar \northodromic sensory latency difference is normal bilaterally.  \nEMG examination of the bilateral upper extremity revealed \nreduced recruitment in the FDl bilaterally.   \n \n Dr. Johnson assessed “Moderate bilateral ulnar neuropathy at the \nelbows.  There is no electrodiagnostic evidence of radiculopathy, \nplexopathy, generalized peripheral neuropathy or other peripheral \nentrapment syndromes.”   \n The claimant treated at Community Clinic beginning November 12, \n2021.  The diagnosis at that time included “Trapezius muscle spasm.”   \n\nPEREZ - H108467   9\n  \n \n \n A pre-hearing order was filed on January 6, 2022.  According to the \ntext of the pre-hearing order, the claimant contended, “Claimant contends \nhe is entitled to medical treatment for his arms, hands, shoulders and neck.  \nHe also contends he is entitled to temporary total disability benefits.  The \nclaimant reserves all other issues.”   \n The parties stipulated that the respondents “controvert this claim in \nits entirety.”  The respondents contended, “Respondents contend that \nclaimant’s injuries do not meet the requirements as to compensability under \nAct 796.  Respondents contend that claimant failed to notify respondents of \na work-related injury that he alleges occurred on June 28, 2021.”   \n The parties agreed to litigate the following issues: \n1.  Whether claimant sustained a compensable injury to his \narms, hands and shoulders bilaterally as well as his neck \nas a result of a gradual onset injury culminating on June \n28, 2021.   \n2.  Whether claimant is entitled to medical treatment.   \n3.  Whether claimant is entitled to temporary total disability \nbenefits from the date last worked to a date yet to be \ndetermined.   \n4. Whether claimant’s attorney is entitled to an attorney’s fee. \n \nAnne Sheen, PA examined the claimant at Community Clinic on \nFebruary 18, 2022: \n44 y/o M presents with c/o persistent Rt arm pain.  States the \npain starts by his shoulder blade and radiates down his Rt \narm.  He denies known injury.  States the pain has been \nworsening and he now gets tingling/numbness in the arm.  He \nhas tried taking mobic and flexeril without improvement of his \nsxs.... \n\nPEREZ - H108467   10\n  \n \n \nMusculoskeletal:  Large knot/spasm noted proximal to Rt \nscapula – very ttp.  Pt reports limited ROM of Rt shoulder d/t \npain.  States pain radiates up his neck w/movements of his \nshoulder.  No spinous abnormalities noted to neck or bony \nabnormalities noted to bil shoulders, arms.   \n \n Ms. Sheen assessed “1.  Anxiety with depression” and “2.  Trapezius \nmuscle spasm.” \n Anne Sheen noted on March 16, 2022, “44 y/o M presents with \ncontinued c/o Rt posterior shoulder pain with radiation down Rt arm.  He \nhas been seen for this previously and trialed prednisone, NSAIDs, and \nmuscle relaxers without relief.  I referred him to PT but they were not able to \nreach him to schedule appt....Large knot/spasm noted proximal to Rt \nscapula – very ttp.”  Ms. Sheen assessed “1.  Trapezius muscle spasm.  2.  \nRight arm pain.  3.  Paresthesia of right upper extremity.”   \nAn MRI of the claimant’s right shoulder was taken on March 24, 2022 \nwith the following findings: \nBursal surface fraying of the supraspinatus and tendinopathy \nis seen.  The infraspinatus is intact and demonstrates normal \nsignal.  The subscapularis is intact and demonstrates normal \nsignal.  The long head biceps tendon is intact and \ndemonstrates normal signal.  No muscular atrophy is seen. \nMild degenerative changes of the acromioclavicular joint are \nseen.  A type II acromion is identified.  Increased signal seen \nin the anterior labrum consistent with an underlying tear.  The \nglenohumeral cartilage is well-maintained.   \nIMPRESSION:  1.  Tear involving the anterior labrum. \n2.  Bursal surface fraying of the distal fibers of the \nsupraspinatus.   \n \n\nPEREZ - H108467   11\n  \n \n \n A hearing was held on May 31, 2022.  At that time, the parties \nagreed to litigate the following issues: \n1.  Whether the claimant sustained a compensable injury to \nhis right shoulder as a result of a gradual-onset injury \nculminating on June 28, 2021. \n2.  Whether the claimant is entitled to medical treatment.  \n \nThe claimant testified at hearing that he had become employed with \nanother company.  The claimant testified that he continued to suffer from \npain in his right shoulder, right upper extremity, and neck.   \nAn administrative law judge filed an opinion on August 25, 2022.  \nThe administrative law judge found that the claimant failed to prove he \nsustained a compensable injury to his right shoulder.  The administrative \nlaw judge therefore denied the claim.  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(ii)  An injury causing internal or external physical harm to \nthe body and arising out of and in the course of \nemployment if it is not caused by a specific incident or is \nnot identifiable by time and place of occurrence, if the \ninjury is: \n(a)  Caused by rapid repetitive motion.... \n \nIn analyzing whether an injury is caused by rapid repetitive motion, \nthe standard is a two-pronged test:  (1)  the tasks must be repetitive, and \n(2)  the repetitive motion must be rapid.  Malone v. Texarkana Public \n\nPEREZ - H108467   12\n  \n \n \nSchools, 333 Ark. 343, 969 S.W.2d 644 (1998).  As a threshold issue, the \ntasks must be repetitive, or the rapidity element is not reached.  Id.  \nArguably, even repetitive tasks and rapid work, standing alone, do not \nsatisfy the definition; the repetitive tasks must be completed rapidly.  Id.   \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). \nArk. Code Ann. §11-9-102(4)(Repl. 2012) further provides, in \npertinent part: \n(E)  BURDEN OF PROOF.  The burden of proof of a \ncompensable injury shall be on the employee and shall be as \nfollows: \n(ii)  For injuries falling within the definition of compensable \ninjury under subdivision (4)(A)(ii) of this section, the burden of \nproof shall be by a preponderance of the evidence, and the \nresultant condition is compensable only if the alleged \ncompensable injury is the major cause of the disability or need \nfor treatment.   \n \n “Major cause” means more than fifty percent (50%) of the cause.  \nArk. Code Ann. §11-9-102(14)(A)(Repl. 2012).  A finding of major cause \nshall be established according to the preponderance of the evidence.  Ark. \nCode Ann. §11-9-102(14)(B)(Repl. 2012).  Preponderance of the evidence \nmeans the evidence having greater weight or convincing force.  \n\nPEREZ - H108467   13\n  \n \n \nMetropolitan Nat’l Bank v. La Sher Oil Co., 81 Ark. App. 269, 101 S.W.3d \n252 (2003). \n An administrative law judge found in the present matter, “3.  The \nclaimant has failed to prove by a preponderance of the evidence that he \nsustained a compensable injury to his right shoulder as a result of a gradual \nonset injury culminating on or about June 28, 2021.”  In workers’ \ncompensation cases, the Commission functions as the trier of fact.  Blevins \nv. Safeway Stores, 25 Ark. App. 297, 757 S.W.2d 569 (1988).  The \ndetermination of the credibility and weight to be given a witness’s testimony \nis within the sole province of the Commission.  Murphy v. Forsgren, Inc., 99 \nArk. App. 223, 258 S.W.3d 794 (2007).  The Commission is not required to \nbelieve the testimony of the claimant or any other witness but may accept \nand translate into findings of fact only those portions of the testimony it \ndeems worthy of belief.  Farmers Co-op v. Biles, 77 Ark. App. 1, 69 S.W.3d \n899 (2002).  An administrative law judge’s findings with regard to credibility \nare not binding on the Full Commission.  Roberts v. Leo Levi Hospital, 8 \nArk. App. 184, 649 S.W.2d 402 (1983).  The Full Commission has the duty \nto decide the case de novo and we are not bound by the characterization of \nevidence adopted by an administrative law judge.  Tyson Foods, Inc. v. \nWatkins, 31 Ark. App. 230, 792 S.W.2d 348 (1990).         \n\nPEREZ - H108467   14\n  \n \n \n The Full Commission finds in the present matter that the claimant \nproved by a preponderance of the evidence that he sustained a \ncompensable injury to his right shoulder as the result of rapid repetitive \nmotion.  The claimant became employed with the respondents in August \n2018.  The claimant testified that he worked in “evis” for the respondents, \nand that he was injured while “hanging the turkeys that go to the chiller.”  \nThe Full Commission finds that the claimant was a credible witness.  The \nevidence of record corroborated the claimant’s testimony.  The claimant \ndescribed in detail his repetitive work on the respondents’ “evis” assembly \nline or conveyor.  The claimant estimated that he processed approximately \n500 turkeys per hour, which work would calculate to about 8.3 turkeys per \nminute.  The evidence demonstrates that the claimant performed repetitive \ntasks in a rapid manner.  See Malone, supra.  We find that the claimant’s \nduties were both repetitive and rapid.  Whether or not an employee was \nperforming rapid repetitive motion is not a mathematical formula but is a \nfinding of fact based on the circumstances of each particular case.  Hapney \nv. Rheem Manufacturing Co., 67 Ark. App. 8, 992 S.W.2d 151 (1999).  The \nclaimant testified that he was required to process the turkeys “Faster.  \nFaster” when he worked in the respondents’ “chilling” department.   \n The claimant began treating at Cargill Health Services on July 9, \n2021.  A company nurse noted at that time, “What object or substance \n\nPEREZ - H108467   15\n  \n \n \nharmed the employee?  Hanging turkeys.”  The claimant was given a \n“Reduced Count” of the number of turkeys to process.  The “Reduced \nCount” restriction is probative evidence implicitly demonstrating that the \nclaimant’s rapid repetitive work for the respondents was causing his \nsymptoms.  On July 26, 2021, a company nurse appeared to notice a bruise \nin the claimant’s right scapula area.  The scapula is in the anatomic region \nof the claimant’s right shoulder where he complained of work-related pain.  \nHowever, the respondents terminated the claimant’s employment on or \nabout July 27, 2021.   \n A physician’s assistant reported a “Large knot/spasm” proximal to \nthe right scapula on February 18, 2022.  Spasm is a patent objective \nmedical finding establishing a compensable injury.  University of Ark. Med. \nSciences v. Hart, 60 Ark. App. 13, 958 S.W.2d 546 (1997).     \nAn MRI of the claimant’s right shoulder on March 24, 2022 showed a “tear” \nof the labrum and “bursal surface fraying” in the supraspinatus tendon.  The \nMRI results are additional objective medical findings establishing an injury.  \nWe find that these objective medical findings, that is, the reported spasm \nand the abnormalities shown on MRI, were causally related to the \nclaimant’s rapid repetitive work for the respondents.   \n The Full Commission finds that the claimant proved by a \npreponderance of the evidence that he sustained a “compensable injury” in \n\nPEREZ - H108467   16\n  \n \n \naccordance with Ark. Code Ann. §11-9-102(4)(A)(ii)(a)(Repl. 2012).  The \nclaimant proved that he sustained an injury causing physical harm to his \nright shoulder, and that the injury arose out of and in the course of \nemployment.  The claimant proved that the right shoulder injury was caused \nby rapid repetitive motion.  The claimant established a compensable injury \nby medical evidence supported by objective findings, notably the reports of \ntrapezius muscle spasm and “tear” and “fraying” shown on MRI.  The \nclaimant proved that the compensable injury was the major cause of his \nneed for medical treatment.     \n After reviewing the entire record de novo, the Full Commission finds \nthat the claimant proved by a preponderance of the evidence that he \nsustained a compensable injury to his right shoulder which was caused by \nrapid repetitive motion.  The claimant proved that the treatment of record \nwas reasonably necessary in accordance with Ark. Code Ann. §11-9-\n508(a)(Repl. 2012).  There are currently no recommendations for additional \nmedical treatment.  For prevailing on appeal to the Full Commission, the \nclaimant’s attorney is entitled to a fee of five hundred dollars ($500), \npursuant to Ark. Code Ann. §11-9-715(b)(Repl. 2012). \n \n \n \n\nPEREZ - H108467   17\n  \n \n \n IT IS SO ORDERED.   \n \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner \n \n \nCommissioner Mayton dissents. \nDISSENTING OPINION \n I must respectfully dissent from the Majority opinion finding that the \nclaimant has proven by a preponderance of the evidence that he sustained \na compensable injury to his right shoulder which was caused by rapid \nrepetitive motion. \nThe present case is one of credibility.  As highlighted by the Majority, \nit is the within the sole discretion of the Commission to determine the \ncredibility of a witness’ testimony; however, \"[w]here there are \ncontradictions in the evidence, it is within the Commission's province to \nreconcile conflicting evidence and to determine the true facts.\"  Templeton \nv. Dollar General Store, 2014 Ark. App. 248, 434 S.W.3d 417 (2014).  A \nclaimant's testimony is deemed controverted as a matter of law.  See Ester \nv. National Home Ctrs. Inc., 335 Ark. 356, 981 S.W.2d 91 (1998) (testimony \nof an interested party is taken as disputed as a matter of law); Flynn v. J. B. \nHunt Transp., 2012 Ark. App. 111, 389 S.W.3d 67 (2012) (\"[T]he \n\nPEREZ - H108467   18\n  \n \n \nuncorroborated testimony of an interested party is never to be considered \nuncontradicted.\").  The Commission is not required to believe the testimony \nof the claimant or any other witness, but may accept and translate into \nfindings of fact only those portions of the testimony that it deems worthy of \nbelief.  Long v. Wal-Mart Stores, Inc., 98 Ark. App. 70, 250 S.W.3d 263 \n(2007). \n The Majority has taken the claimant’s testimony at face value when \ndetermining that he was a credible witness and that his testimony was \ncorroborated by evidence of record.  I must agree with the ALJ’s \ndetermination that the claimant’s testimony was both contradictory and \nevasive.  (Opinion, P. 15).  The facts simply do not support the claimant’s \nallegations.  While the claimant had been employed with Cargill since 2018 \nas noted by the Majority, their opinion fails to note that the claimant had \nonly been working in the “chiller/deboner” station since May 2021, only a \nfew weeks prior to his alleged injury.  (Cl. Depo., Pp. 28-29). The claimant \nfailed to answer questions regarding this fact at the May 2022 hearing.  \nHowever, this timing had previously been addressed at the claimant’s \ndeposition. Id.  The claimant’s testimony, as accepted by the Commission, \nis that he hung 500 turkeys per hour, alternating between hanging them by \ntheir heads and by their feet (Cl. Depo., P. 24).  This, to quote the ALJ, is \n“contradictory to reason,” and is not logical or reasonable.  The testimony \n\nPEREZ - H108467   19\n  \n \n \nalso revealed the claimant’s job involved both working in the chiller hanging \nturkeys and deboning and that these activities rotated each hour throughout \nthe day.  (Tr., P. 8). The fact that his job duties alternated each hour \nthroughout the day is proof that his work was not rapid and repetitive.  \n The record simply does not support the claimant’s contentions.  \nBetween July 7 and August 17, 2021, the claimant visited Cargill nursing \nstaff on seven occasions.  (Cl. Ex. 1, pp. 1-27).  Initially, medical staff noted \nthat there was no bruising or swelling and only ice treatment was \nrecommended. Id. at P. 2.  In fact, the only notable issues appear to have \nbeen degenerative. Id. at P. 4.  At his subsequent appointment on July 26, \n2021, the claimant reported not working from July 21, 2021 to July 26, \n2021.  The claimant testified that he woke up with a bruise and could point \nto no specific cause of the bruise except he thought it was related to his \narm being swollen.  (Tr., Pp. 24-25).  There is no medical proof to support \nthis allegation.  In fact, at the time the bruise was reported, it appeared to \nbe “2 to 3 days old,” although the claimant had not worked for the previous \nfive days as noted above and was located on the right side of his ribs, not, \nas he testified, on his back at his shoulder blade.  (Cl. Ex. 1, pp. 19, 23).  \nSince the bruise did not appear until approximately one month after the \ndate of the accident, it should be given no weight.  Due to the nature, \nlocation, and timing of this bruise it defies logic to consider it as evidence \n\nPEREZ - H108467   20\n  \n \n \nsupporting a gradual onset injury or being an objective medical finding that \nwould support an award of benefits. \n In my review of the facts of this case, the questions of fact presented \nby the claimant’s testimony cannot be supported by the evidence, logic or \nreason.  The claimant appears evasive in his testimony, failing to answer \neven basic questions regarding when, where and how his injury occurred.  \nFrankly, the claimant failed to prove causation in this matter.  It is for this \nreason that I respectfully dissent.   \n \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner","preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H108467 SAMUEL PEREZ, EMPLOYEE CLAIMANT CARGILL, INC., EMPLOYER RESPONDENT OLD REPUBLIC INSURANCE COMPANY, INSURANCE CARRIER/TPA RESPONDENT OPINION FILED MARCH 24, 2023","fetched_at":"2026-05-19T22:29:46.575Z","links":{"html":"/opinions/full_commission-H108467-2023-03-23","pdf":"https://labor.arkansas.gov/wp-content/uploads/Perez_Samuel_H108467_20230323.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/"}}