{"id":"full_commission-H109299-2023-05-19","awcc_number":"H109299","decision_date":"2023-05-19","opinion_type":"full_commission","claimant_name":"David Wise","employer_name":"Midland Industrial Services, LLC","title":"WISE VS. MIDLAND INDUSTRIAL SERVICES, LLC AWCC# H109299 MAY 19, 2023","outcome":"remanded","outcome_keywords":["remanded:1"],"injury_keywords":["back","neck"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/Wise_David_H109299_20230519.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Wise_David_H109299_20230519.pdf","text_length":31323,"full_text":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n \nCLAIM NO.  H109299  \n \nDAVID J. WISE, \nEMPLOYEE \n \nCLAIMANT \nMIDLAND INDUSTRIAL SERVICES, LLC,  \nEMPLOYER \n \nRESPONDENT \nLIBERTY MUTUAL GROUP, \nINSURANCE CARRIER/TPA \nRESPONDENT \n  \n      \nOPINION FILED MAY 19, 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 DAVID C. JONES, Attorney \nat Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Affirmed as Modified. \n \n \n OPINION AND ORDER \nThe claimant appeals an administrative law judge’s opinion filed \nNovember 10, 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 finds that the claimant did not \nprove by a preponderance of the evidence that he sustained a \ncompensable injury.   \nI.  HISTORY \n David James Wise, now age 62, testified that he had been a diabetic \nfor approximately 20 years.  Mr. Wise testified that he controlled his diabetic \n\nWISE - H109299     2\n  \n \n \ncondition with medication.  Dr. Shawn L. Brummett saw the claimant on \nJune 30, 2020, “Patient here to follow up on diabetes.”  Dr. Brummett noted \nthat the claimant’s past medical history included “Diabetes mellitus.”  Dr. \nBrummett assessed “Type 2 diabetes mellitus without complication, without \nlong-term current use of insulin.  Mixed hyperlipidemia.  Essential \nhypertension.”  Dr. Brummett planned treatment with medication and follow-\nup in three months.     \n The record indicates that the claimant became employed with the \nrespondents, Midland Industrial Services, LLC on or about August 18, 2021.  \nThe claimant testified that the respondent-employer hired him to be a \nProject Manager.  The parties stipulated that the employee-employer-carrier \nrelationship existed on August 26, 2021.  The claimant testified on direct \nexamination: \n  Q.  And where were you located on August 26\nth\n of last year? \n  A.  I was in Vernon, Texas.   \n  Q.  And what were you supposed to be doing that day? \nA.  I was told I was sent over there to meet a crew and meet \nthe guys and see what was going on.... \nQ.  So what did you end up doing that day? \nA.  I ended up meeting the crew.  And when I met the crew, \nthe foreman was – that was Tyler Hayden, a good foreman, \nbut he didn’t have the right type crew to do what he was \ndoing.  He had mainly welders.  So I wasn’t supposed to be \non my tools, but I went ahead and helped him and I cut \nbrackets all day for running steam lines on that roof.   \nQ.  So where were you cutting the brackets? \nA.  Up on the roof.  It was like on top of the Wright Bacon \nplant.  It was 40 feet in the air and it was around, you know, \n\nWISE - H109299     3\n  \n \n \n100 or more on that black roof, and I was cutting stainless \nsteel brackets all day.  And it was terrible, hot, but ... \nQ.  And what kind of shoes were you wearing that day? \nA.  I had my most comfortable pair, Justins.  They are leather.  \nAnd when it’s hot like that – these are a low-top.  They are not \na high-top boot.  They are really comfortable and that is what I \nwore that day.  They are real nice steel-toed shoes.   \nQ.  Okay.  And how long were you on the roof that day? \nA.  We was on the roof for 10 hours that day.   \nQ.  And what time do you start? \nA.  I guess around 7:00, a little before.... \nQ.  So toward the end of the day or some time during the day, \ndid you begin having some symptoms in your feet? \nA.  Yeah, around noon, 1 o’clock, it started.  It was hot.  And \nthere was no way to get away from that black roof.  You know, \nmy feet started feeling a little scalded and hot, which it’s like \nwalking on hot pavement.  You know, by the time it was \nquitting time, I knew I scalded my feet.... \nQ.  So what did you do after work that night? \nA.  Well, I went to – actually went to Walmart and got me \nsome ice packs and some Aloe vera for my feet.  And I had \nlotion and stuff.  And I just took a cold shower, you know, \ntended to my feet the best I could.   \nQ.  Did you return to work the next day? \nA.  Yes, I did.   \nQ.  And did you report this problem? \nA.  I told Hayden and a guy they called Kanoe....I told – the \nwhole group, we meet every morning, and I told everybody.  I \nwas like, you know, I scalded and burnt my feet \nyesterday....But I told Tyler that I burnt my feet.  But in all \nfairness to Tyler and me, we didn’t think that it was all that \nbad.... \nQ.  So how long were you supposed to be in that area for \nMidland? \nA.  Well, they just said three or four days and that is just – \nwhen I left, that is what I was told and then I was going to \nGeorgia – I think it was Georgia – to meet a crew that was \nthere and do the same thing, but I never made it to Georgia.   \nQ.  So did you end up leaving the job early? \nA.  I left – yeah.  I think they had a few more days, two or \nthree more days, and I told them, you know, my feet are not \nright and I went ahead and left. \n\nWISE - H109299     4\n  \n \n \nQ.  And who did you tell that to? \nA.  I told it to Tyler.... \nQ.  And when you went home from that job what happened \nthen? \nA.  I went home and I think I took off 13 days and, you know, I \ndoctored my feet.  My wife and my little girl doctored my feet \nand soaked it in Epsom salt and put everything from Aloe vera \nto antibiotics on it to try to take care of it.  I figured, you know, \nit would go away and heal up. \nQ.  And did you go back to work? \nA.  I actually got hired on by Multi-Craft and I told them right \nup front that I burnt my feet and they sent me to a project in \nGeorgia – I mean in Jonesboro.   \n \n The claimant testified with regard to the alleged accidental injury, “I \nscalded my feet.  I knew they were scalded....They just kept getting worse \nand worse.”  The claimant’s wife, Barbara Ann Wise, testified that the \nclaimant reported the alleged injury to her.       \n David Rook testified that he was the Division Manager for the \nrespondent-employer’s Industrial Refrigeration Safety Division.  The \nrespondents’ attorney examined David Rook: \n  Q.  So [the claimant] was hired in mid-August.  Is that correct? \n  A.  Yes.   \nQ.  All right.  And if you can, Mr. Rook, take us through and \ntell us about the orientation process.  Who does that and \nwhen did that take place? \nA.  Well, it’s a typical function that most companies use and \nwhat we do is go over the safety portion.  I am not talking \nabout the HR portion.  The safety portion for us is to cover the \nawareness training of safety-related components of what we \ndo in our business.  Identifying slips, trips and falls, electrical \nsafe work practices, emergency notification procedures, \nconfined space awareness, just stuff that these folks would \nencounter, the employees we have, in the general industry \nand construction environment. \n\nWISE - H109299     5\n  \n \n \nQ.  All right.  And you did the presentation yourself? \nA.  I did.... \nQ.  And for the record, I have got some documents right there, \nif you want to grab that right there.  Those are Respondents’ \nExhibit No. 2.  Are those some of the documents that Mr. \nWise executed?  It would be the next set.   \nA.  That is correct. \nQ.  And did you all go over – and that first page, is that the \ncompany handbook? \nA.  Yes.  This is the signature page saying he received it.... \nQ.  And that is Page 2 of the exhibit, the handbook statement? \nA.  Yes, that is correct. \nQ.  And that document talks how injuries no matter how slight, \nyou are supposed to report it to your supervisor.  Is that \ncorrect? \nA.  That is correct.... \nQ.  So it’s safe to say you told him how and when to report \ninjuries at orientation.  Is that correct? \nA.  Well, that is correct.  On the safety side, if you don’t report \nit immediately, then we don’t have any way to mitigate the risk \nto other team members.... \nQ.  And if Mr. Wise had called in that day in Texas and told \nyou he had been hurt, I take it that – \nA.  That is correct, he could have got pulled off the job, \nbrought back to restricted duty, and we would have gotten him \nthe medical treatment he needed, more than likely.... \nQ.  And in terms of his employment, you heard him testify \ntoday that he left it looks like September 1\nst\n.  Is that correct? \nA.  That is correct, according to the termination paperwork, \nvoluntarily.     \n \n The claimant agreed on cross-examination that he began working for \nanother employer, Multi-Craft Contractors, on September 13, 2021.  The \nclaimant testified that a blister on his foot ruptured while he was performing \nwork for Multi-Craft Contractors.     \n According to the record, the claimant treated at Mercy Hospital \nNorthwest Arkansas on October 3, 2021: \n\nWISE - H109299     6\n  \n \n \nPatient presents with pain and swelling of his great toes.  \nPatient is diabetic.  He states that he was working on a hot \nroofs (sic) with still (sic) toed shoes approximately 1 month \nago and obtained burns to both toes.  He has continued to \nwork daily 10-hour days.  He has been self treating and states \nthat it has improved.  He is home now and with the \nencouragement of his family he comes in today.   \n \n It was noted on October 3, 2021 with regard to the claimant’s right \nfoot, “1.  Skin breakdown with callus and erythema.”  It was noted with \nregard to the claimant’s left foot, “2.  Skin breakdown with moderate \nerythema and mild smell.”   \n An x-ray of the claimant’s left foot was taken on October 3, 2021 with \nthe impression, “Radiographic findings consistent with osteomyelitis of the \n1\nst\n toe distal phalanx base.  1\nst\n toe plantar soft tissue ulcer.”   \n Dr. Tyler Worth Troutman attested to the following on October 3, \n2021: \nAgree w/ the note by Rachel Reynolds.  This is a 60-year-old \nman with a history of diabetes hypertension hyperlipidemia \nand obesity.  Presents from home with day left great toe \nulceration.  About a month ago he was working in Texas on a \nconstruction job on the roof of the building and developed \nburns in bilateral great toes.  He has been managing this at \nhome with soaking his feet in Epson salt and keeping toes \nwrapped and using triple antibiotic ointment.  He has baseline \nneuropathy but still has been having some mild pain on the \nmedial aspect of the great toe.  Denies any fevers or chills.  \nOn presentation inflammatory markers are moderately \nelevated and x-ray of the foot does reveal some bony \ndestruction indicative of osteomyelitis.... \nLarge ulceration on inferolateral aspect of L great toe with \nexposed muscle and purulent drainage. \nMuch smaller laceration on r great toe.   \n\nWISE - H109299     7\n  \n \n \nWe discussed the x-ray findings of osteomyelitis and my \nrecommendation for an amputation of the toe as antibiotics \nalone cannot cure OM.  This came as a shock to him.  He is \nunsure if he would agree to an amputation at this point.  He \nagreed to have orthopedics and infectious disease weigh in \ntomorrow and get an MRI of the foot to better describe the \nextent of the osteo.... \nStates he was working on a roof in 115 degree weather in TX \nabout a month ago.  Developed burns that blistered to both \nbig toes.  Was wearing steel toe boots at the time.  States the \nblisters opened up a few days later.  He has been managing \nhis own wound care at home and soaking in Epsom salt and \napplying Neosporin.  Has still been working 10 hour days on \nhis feet in steel toe boots.  He does keep his feet wrapped.  \nStates the side of his callous on left great toe is the most \npainful and blistered areas only mildly painful.  Denies prior \noccurrence.  Has neuropathy.... \n \n An MRI of the claimant’s left foot was taken on October 4, 2021 with \nthe following impression: \n1.  Osteomyelitis of the 1\nst\n toe distal phalanx.  Soft tissue \nulceration of the 1\nst\n toe.   \n2.  Probable reactive bone marrow edema and/or osteitis at \nthe 1\nst\n toe middle phalanx head.  Probable reactive \nmarrow edema the 1\nst\n metatarsal neck. \n3.  Foot soft tissue edema.   \n \n The claimant testified that he reported the alleged injury to David \nRook on or about October 4, 2021.   \n The assessment and plan of Dr. Michael Andrew Ebers on or about \nOctober 5, 2021 included “Diabetic foot ulcer complicated by left first toe \nosteomyelitis:  Obtain blood cultures.  Appreciate orthopedic surgery \nassessment.\"  The claimant received extended treatment visits at Mercy \nmedical center related to the diabetic condition in his left lower extremity.     \n\nWISE - H109299     8\n  \n \n \n The respondents’ attorney examined David Rook: \nQ.  And you didn’t hear anything about this until October it \nsounds like? \n  A.  October the 6\nth\n I think it was, the first of October.   \nQ.  All right.  And as far as you are aware, did he tell anyone \nat Midland about his foot injured before October?   \nA.  Not that I know of, no.... \nQ.  And if somebody called the company and reported an \ninjury, would they have referred it to you at that point? \nA.  It would go straight to me.  I get all of them.... \nQ.  Once again, the first time you learned about it was roughly \nOctober 6\nth\n after he had been to the hospital? \nA.  That is correct.   \n \n The record includes an “Appendix D – Accident Investigation \nReport.”  It was written on the Accident Investigation Report that the Date of \nAccident/Injury/Illness was August 26, 2021, “Vernon, Tx Job.”  The Date \nInvestigation Began was October 6, 2021.  It was handwritten on the \nAccident Investigation Report, “Team Member (TM) reported on 10/3/21 \nthat he worked on the roof in Vernon, Tx.  While there it was hot and he \nburned his feet through his boots.  T/M continued to work without any \ntreatment.”  The Part(s) of Body Affected were “Both feet – Big toe on each \nfoot blistered.”  It was written on the Report, “No medical treatment was \nadministered when aledged (sic) injury occured (sic).  T/M stated he added \ncreams & salts to his feet for self treatment.”  The Accident Investigation \nReport identified a witness as Tyler Haden:  “Tyler stated that T/M told him \nit was hot working on the roof.  Tyler agreed, but at no time did the T/M \nstate he was injured or had any issues with his feet.”  A second witness \n\nWISE - H109299     9\n  \n \n \nidentified was Kanoe O’Neil, and it was written, “Kanoe stated he had no \nknowledge of David Wise having any foot issues....Safety manager took \nstatement over phone.”   \n On October 13, 2021, the claimant underwent a debridement \nperformed for “Wound #1 Left Toe Great.”  Dr. Douglas Friesen reported on \nOctober 13, 2021, “60 y/o diabetic male with a hx of foot deformity and \nosteo of the L gr toe.  He was in the hosp and had an art duplex that \nrevealed monophasic flow.  He has no pulse on the L side.  He had an A1C \nthat was elevated.  He chews and is trying to stop.  He is getting the bs \nunder control.  The x-ray and MRI revealed osteo.  Script for AFO given, \ndiscussed hbot and how that works.  Script for diabetic shoes and custom \ninsoles given.”   \n The claimant continued to follow up with medical providers for his \ndiabetic condition and abnormalities in his lower extremities.  The claimant \nreturned to Dr. Brummett on April 27, 2022: \nPatient burned his big toe on left foot a few months ago, he \nhas recently went back to work and now the skin is peeling off \nand bleeding.   \nWould like to go back to wound care if possible.   \nPatient here for follow up on his wound on his left great toe.   \nThe wound improved after wound care treatments earlier this \nyear.   \nAbout 1 week ago a callus over the area of the previous \nwound came of (sic) and now he has an open wound there.  It \nbleeds some and is painful if he is on his feet.... \nSkin:  1.5 x 2cm ulcer on inferior-medial aspect of the left \ngreat toe.  No surrounding erythema or swelling.   \n\nWISE - H109299     10\n  \n \n \n \n Dr. Brummett assessed “Type 2 diabetes mellitus with foot ulcer, \nwithout long-term current use of insulin.  Diabetic ulcer of left great \ntoe....Ulcer – Referral back to wound care.  Today it does not appear \ninfected.  Encouraged him to keep the wound covered with a dressing like \nhe has been until he sees wound care.  He will also watch for signs of \ninfection and follow up if this happens.”   \n A pre-hearing order was filed on May 19, 2022.  According to the text \nof the pre-hearing order, the claimant contended that he was “entitled to \nmedical treatment for his injury and to repayment for medical expenses he \nhas incurred.  He contends he is entitled to temporary total disability \nbenefits from October 3, 2021, to the end of January 2022.  The claimant \nreserves all other issues.”   \n The parties stipulated that the respondents “have controverted the \nclaim in its entirety.”  The respondents contended, “1.  The respondents \ncontend that the claimant did not sustain specific incident injuries to his \ngreat toes during the course and in the scope of his employment on August \n26, 2021.  In that regard, the respondents contend that the claimant had no \nobjective medical findings to support compensability until what appears to \nbe more than a month later and that his condition is a result of his diabetic \npreexisting conditions and not a result of the work-related activities for the \nrespondent/employer herein.  2.  The respondents contend that the \n\nWISE - H109299     11\n  \n \n \nclaimant’s subsequent work activities after his resignation from the \nrespondent/employer herein and his failure to properly maintain his diabetic \nmedical condition led to his ultimate need for treatment and surgical \nintervention, and not the alleged exposure to heat with the \nrespondent/employer herein.  Furthermore, the respondents contend that \nthe claimant’s subsequent activities would be considered an independent \nintervening event, and his failure to maintain control of his diabetic condition \nand preexisting conditions led to his ultimate need for surgery.  3.  The \nrespondents contend that the claimant’s temporary total disability benefits \nwould be limited to what appears to be on or about October 6, 2021 through \nJanuary 2022 (the parties are trying to narrow down the dates for potential \ntemporary total disability benefits).  4.  The respondents contend that the \nclaimant would not be entitled to any type of permanent partial disability \nratings as the ‘major cause’ of any impairment would be a result of his \npreexisting condition, not a result of the work-related injury alleged herein.  \n5.  The respondents contend that they would be entitled to an offset for any \nunemployment benefits paid to the claimant should the claimant have \napplied for and received said benefits.  6.  The respondents would reserve \nthe right to amend and supplement their contentions after the discovery as \nbeen completed.”   \n The parties agreed to litigate the following issues: \n\nWISE - H109299     12\n  \n \n \n1.  Compensability. \n2.  If compensable, whether claimant is entitled to temporary \ntotal disability benefits and medical benefits. \n3.  Compensation rate. \n4.  Attorney fee. \n5.  Respondents raise lack of notice as a defense.   \n6.  Whether respondents are entitled to appropriate setoffs, \nshould benefits be awarded.   \n \n After a hearing, an administrative law judge filed an opinion on \nNovember 10, 2022 and found that the claimant did not prove he sustained \na compensable injury.  The administrative law judge therefore denied and \ndismissed the claim.  The claimant appeals to the Full Commission. \nII.  ADJUDICATION \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 \nphysical harm to the body ... arising out of and in the \ncourse of employment and which requires medical \nservices or results in disability or death.  An injury is \n“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 also be established by medical evidence \nsupported by objective findings.  Ark. Code Ann. §11-9-102(4)(D)(Repl. \n2012).  “Objective findings” are those findings which cannot come under the \nvoluntary control of the patient.  Ark. Code Ann. §11-9-102(16)(A)(i)(Repl. \n2012).   \n\nWISE - H109299     13\n  \n \n \n The employee has the burden of proving by a preponderance of the \nevidence that he sustained a compensable injury.  Ark. Code Ann. §11-9-\n102(4)(E)(i)(Repl. 2012).  Preponderance of the evidence means the \nevidence having greater weight or convincing force.  Metropolitan Nat’l \nBank v. La Sher Oil Co., 81 Ark. App. 269, 101 S.W.3d 252 (2003).  When \ndeciding any issue, the Commission shall determine, on the basis of the \nrecord as a whole, whether the party having the burden of proof on the \nissue has established it by a preponderance of the evidence.  Ark. Code \nAnn. §11-9-704(c)(2)(Repl. 2012).  In workers’ compensation cases, the \nCommission functions as the trier of fact.  Blevins v. Safeway Stores, 25 \nArk. App. 297, 757 S.W.2d 569 (1988).  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).   \n An administrative law judge found in the present matter, “2.  \nClaimant has failed to prove by a preponderance of the evidence that he \nsuffered a compensable injury on August 26, 2021.”  The Full Commission \nhas the duty to adjudicate the case de novo and we are not bound by the \ncharacterization of evidence adopted by an administrative law judge.  Tyson \nFoods, Inc. v. Watkins, 31 Ark. App. 230, 792 S.W.2d 348 (1990).  An \n\nWISE - H109299     14\n  \n \n \nadministrative law judge’s findings with regard to credibility are not binding \non the Full Commission.  Roberts v. Leo Levi Hospital, 8 Ark. App. 184, 649 \nS.W.2d 402 (1983).   \n In the present matter, the Full Commission finds that the claimant did \nnot prove by a preponderance of the evidence that he sustained a \ncompensable injury on August 26, 2021.  As we have discussed, the \nclaimant testified that he has suffered from a pre-existing diabetic condition \nfor approximately 20 years.  Dr. Brummett diagnosed “Diabetes mellitus” on \nJune 30, 2020.  The claimant became employed with the respondents, \nMidland Industrial Services, LLC on or about August 18, 2021.  The parties \nstipulated that the employment relationship existed on August 26, 2021.  \nThe claimant testified that he walked on the surface of a roof that day, and \nthat the surface of the roof was extremely hot as a result of the \ntemperature.  The claimant testified that he was wearing low-top, steel-toed \nboots.  The claimant testified that he eventually “scalded” both feet while \nworking on the roof.  The claimant testified that he reported the alleged \ninjury to at least two co-workers. \n There was no evidence of record from August 26, 2021 which \ncorroborated the claimant’s testimony.  The Full Commission finds that the \nclaimant was not a credible witness with regard to the claimant’s testimony \nthat he scalded his feet on August 26, 2021 while performing employment \n\nWISE - H109299     15\n  \n \n \nservices.  We find that David Rook, a Division Manager for the respondents, \nwas a credible witness based on the record.  David Rook credibly testified \nthat the claimant did not report a workplace injury to him or any other \nindividual on August 26, 2021.  Mr. Rook testified that the claimant \nvoluntarily resigned his employment with the respondents effective \nSeptember 1, 2021.  The claimant agreed that he began working for \nanother employer on September 13, 2021.   \n The claimant did not seek medical treatment for the alleged August \n26, 2021 injury until October 3, 2021.  The claimant informed the medical \nproviders at that time that he had had sustained burns to his great toes \n\"approximately 1 month ago.\"  The claimant’s reporting on October 3, 2021 \nwould place the injury as occurring approximately September 3, 2021 after \nthe claimant had already resigned his employment with the respondents.  \nThe Full Commission recognizes that the claimant is not required to identify \nthe precise time and numerical date upon which the alleged “scalding” \noccurred.  Edens v. Superior Marble & Glass, 346 Ark. 487, 58 S.W.3d 369 \n(2001).  Nevertheless, in the present matter, the claimant’s lengthy delay in \nseeking medical treatment and his failure to timely report the alleged \nscalding injury is a detriment to the claimant’s credibility.  The weight of the \nevidence does not corroborate the claimant’s testimony that he scalded his \nfeet or great toes on August 26, 2021.   The Full Commission reiterates our \n\nWISE - H109299     16\n  \n \n \nfinding that David Rook was a credible witness.  Mr. Rook credibly testified \nthat the claimant did not timely report an injury to him.  Mr. Rook also \ntestified that there were no corroborating eyewitnesses to the alleged \nAugust 26, 2021 injury.   \n   The Full Commission finds that the claimant did not prove by a \npreponderance of the evidence that he sustained a compensable injury in \naccordance with Ark. Code Ann. §11-9-102(4)(A)(i)(Repl. 2012).  The \nclaimant did not prove that he sustained an accidental injury causing \nphysical harm to the body.  The claimant did not prove that he sustained an \ninjury which arose out of and in the course of employment, required medical \nservices, or resulted in disability.  The claimant did not prove that he \nsustained an injury as the result of a specific incident identifiable by time \nand place of occurrence on August 26, 2021.  Additionally, the claimant did \nnot establish an injury by medical evidence supported by objective findings.  \nThe evidence does not demonstrate that the abnormalities in the claimant’s \nlower extremities shown on and after October 3, 2021 were causally \nconnected to a scalding injury which allegedly occurred on August 26, \n2021.  See Ford v. Chemipulp Process, Inc., 63 Ark. App. 260, 977 S.W.2d \n5 (1998).   \n After reviewing the entire record de novo, therefore, the Full \nCommission finds that the claimant did not prove by a preponderance of the \n\nWISE - H109299     17\n  \n \n \nevidence that he sustained a compensable injury on August 26, 2021.  This \nclaim is respectfully denied and dismissed. \n IT IS SO ORDERED.       \n \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    O. MILTON FINE II, Special Commissioner \n \n \nCommissioner Willhite dissents. \n \n \nDISSENTING OPINION \n After my de novo review of the record in this claim, I dissent from the \nmajority opinion finding that the claimant did not prove by a preponderance \nof the evidence that he sustained a compensable injury. \n For the claimant to establish a compensable injury as a result of a \nspecific incident, the following requirements of Ark. Code Ann. §11-9-102 \n(4)(A)(i) (Repl. 2012), must be established: (1) proof by a preponderance of \nthe evidence of an injury arising out of and in the course of employment; (2) \nproof by a preponderance of the evidence that the injury caused internal or \nexternal physical harm to the body which required medical services or \nresulted in disability or death; (3) medical evidence supported by objective \nfindings, as defined in Ark. Code Ann. §11-9-102 (4)(D), establishing the \ninjury; and (4) proof by a preponderance of the evidence that the injury was \n\nWISE - H109299     18\n  \n \n \ncaused by a specific incident and is identifiable by time and place of \noccurrence.  Mikel v. Engineered Specialty Plastics, 56 Ark. App. 126, 938 \nS.W.2d 876 (1997).  \n It is undisputed that the claimant suffered from diabetes prior to his \nworkplace accident.  However, a pre-existing disease or infirmity does not \ndisqualify a claim if the employment aggravated, accelerated, or combined \nwith the disease or infirmity to produce the disability for which \ncompensation is sought.  See, Nashville Livestock Commission v. Cox, 302 \nArk. 69, 787 S.W.2d 664 (1990); Conway Convalescent Center v. \nMurphree, 266 Ark. 985, 585 S.W.2d 462 (Ark. App. 1979); St. Vincent \nMedical Center v. Brown, 53 Ark. App. 30, 917 S.W.2d 550 (1996).  The \nemployer takes the employee as he finds him.  Murphree, supra.  In such \ncases, the test is not whether the injury causes the condition, but rather the \ntest is whether the injury aggravates, accelerates, or combines with the \ncondition.   \n The claimant’s injuries meet the requirements for compensability.  \nThe claimant provided credible testimony that he was involved in a \nworkplace incident on August 26, 2021.  The claimant testified that he was \nworking on a rooftop in 100-degree weather cutting brackets for \napproximately ten hours.  The claimant testified further that he was wearing \na pair of leather steel-toe shoes while performing these duties.  According \n\nWISE - H109299     19\n  \n \n \nto the claimant, by the end of the workday, he knew he had scalded his feet \nso he went to Walmart and bought some ice packs and Aloe vera for his \nfeet.  The next day the claimant reported to the foreman, Tyler Hayden, that \nhe “scalded and burnt” his feet the previous day at work.   \n The claimant took time off from work for thirteen (13) days and \n“doctored [his] feet”.  When the claimant returned to work (working for Multi-\nCraft), he worked approximately ten (10) to twelve (12) days before the sore \non his foot burst. \n There were objective findings of the injury in the form of a diabetic \nulcer of the left great toe and “osteomyelitis of the first toe distal phalanx \nbase” as noted in the October 3, 2021, medical records from Mercy Hospital \nNorthwest Arkansas.  In addition, this injury required medical treatment in \nthe form of prescription medications and debridement of the left great toe.    \n I recognize that in general foot ulcers are common for diabetic \npatients; however, the claimant testified that he had not had trouble with his \nfeet prior to his workplace accident.  There is nothing in the record to \ncontradict the claimant’s testimony regarding whether he had trouble with \nhis feet in the past; therefore, I credit the claimant’s testimony as being \ncredible. \n Despite having diabetes prior to the work accident, the claimant was \nable to perform his job duties without limitations or restrictions.  It was not \n\nWISE - H109299     20\n  \n \n \nuntil after the workplace incident that the claimant developed a diabetic \nulcer and osteomyelitis which ultimately resulted in the above-referenced \ntreatments to his left great toe.   \n Therefore, based on the aforementioned, I find that the claimant has \nestablished by a preponderance of the evidence that he sustained a \ncompensable left foot injury.  In light of this finding, this matter should be \nremanded to the ALJ for a finding regarding the claimant’s entitlement to \nmedical and temporary total disability benefits. \n For the foregoing reasons, I dissent from the majority opinion. \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner","preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H109299 DAVID J. WISE, EMPLOYEE CLAIMANT MIDLAND INDUSTRIAL SERVICES, LLC, EMPLOYER RESPONDENT LIBERTY MUTUAL GROUP, INSURANCE CARRIER/TPA RESPONDENT OPINION FILED MAY 19, 2023","fetched_at":"2026-05-19T22:29:46.380Z","links":{"html":"/opinions/full_commission-H109299-2023-05-19","pdf":"https://labor.arkansas.gov/wp-content/uploads/Wise_David_H109299_20230519.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/"}}