{"id":"full_commission-H109777-2023-05-02","awcc_number":"H109777","decision_date":"2023-05-02","opinion_type":"full_commission","claimant_name":"Ronald Steward","employer_name":"International Paper Co","title":"STEWARD VS. INTERNATIONAL PAPER CO. AWCC# H109777 MAY 2, 2023","outcome":"unknown","outcome_keywords":[],"injury_keywords":["repetitive","neck","shoulder","back","strain","herniated"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/Steward_Ronald_H109777_20230502.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Steward_Ronald_H109777_20230502.pdf","text_length":18562,"full_text":"NOT DESIGNATED FOR PUBLICATION \n \nBEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \nCLAIM NO. H109777 \n \n \nRONALD L. STEWARD,  \nEMPLOYEE  CLAIMANT \n \nINTERNATIONAL PAPER CO.,   \nEMPLOYER                 RESPONDENT \n \nSEDGWICK CLAIMS MANAGEMENT SERVICES, INC. \nCARRIER/TPA RESPONDENT \n \n \nOPINION FILED MAY 2, 2023  \n \nUpon  review  before  the  FULL  COMMISSION,  Little  Rock,  Pulaski  County, \nArkansas. \n \nClaimant  represented  by  the  HONORABLE  MATTHEW  J.  KETCHAM, \nAttorney at Law, Fort Smith, Arkansas. \n \nRespondent  No.  1  represented  by  the  HONORABLE  JOHN  P.  TALBOT, \nAttorney at Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Affirmed and Adopted. \n \n \n OPINION AND ORDER \n Respondents appeal an opinion and order of the Administrative Law \nJudge filed October 6, 2022.  In said order, the Administrative Law Judge \nmade the following findings of fact and conclusions of law: \n \n \n \n\nSTEWARD – H109777   2\n  \n \n \n \n1. The stipulations agreed to by the parties at a \npre-hearing conference conducted on May 5, \n2022 and contained in a pre-hearing order filed \nthat same date are hereby accepted as fact, as \nis the stipulation announced at the hearing \nregarding the claimant’s compensation rate. \n \n2. Claimant has met his burden of proving by a \npreponderance of the evidence that he suffered \na compensable gradual-onset injury to his right \nbicep. \n \n3. Claimant has met his burden of proof by a \npreponderance of evidence that he is entitled to \ntemporary total disability benefits beginning \nJune 4, 2021 and continuing through January \n31, 2022. \n \n4. Claimant has met his burden of proof by a \npreponderance of the evidence that he is \nentitled to medical benefits in the amount of \n$23,508.36. \n \n5. Respondents have failed to prove by a \npreponderance of the evidence that claimant is \nbarred from receiving benefits due to false \nstatements on his employment application. \n \n6. Respondent has controverted claimant’s \nentitlement to all unpaid indemnity benefits. \n \n We have carefully conducted a de novo review of the entire record \nherein and it is our opinion that the Administrative Law Judge's October 6, \n2022 decision is supported by a preponderance of the credible evidence, \ncorrectly applies the law, and should be affirmed.  Specifically, we find from \na preponderance of the evidence that the findings made by the \n\nSTEWARD – H109777   3\n  \n \n \n \nAdministrative Law Judge are correct and they are, therefore, adopted by \nthe Full Commission.  \n We therefore affirm the decision of the Administrative Law Judge, \nincluding all findings of fact and conclusions of law therein, and adopt the \nopinion as the decision of the Full Commission on appeal. \n All accrued benefits shall be paid in a lump sum without discount and \nwith interest thereon at the lawful rate from the date of the Administrative \nLaw Judge's decision in accordance with Ark. Code Ann. §11-9-809 (Repl. \n2012). \n For prevailing on this appeal before the Full Commission, claimant’s \nattorney is entitled to fees for legal services in accordance with Ark. Code \nAnn. §11-9-715 (Repl. 2012). For prevailing on appeal to the Full \nCommission, the claimant’s attorney is entitled to an additional fee of five \nhundred dollars ($500), pursuant to Ark. Code Ann. §11-9-715(b) (Repl. \n2012).  \n \n \n \n \n \n \n\nSTEWARD – H109777   4\n  \n \n \n \n IT IS SO ORDERED. \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner \n \n \n \nCommissioner Mayton dissents. \n \n \nDISSENTING OPINION \n \n  I must respectfully dissent from the Majority’s determination that the \nclaimant sustained a compensable gradual onset right bicep injury while \nworking for International Paper Company. \nI. The claimant has not met his burden of proving that he \nsuffered a gradual onset injury caused by rapid repetitive \nmotion. \n \nArkansas Code Annotated section 11-9-102 (4)(A)(ii) provides that a \ncompensable injury includes “(ii) An injury causing internal or external \nphysical harm to the body and arising out of and in the course of \nemployment if it is not caused by a specific incident or is not identifiable by \ntime and place of occurrence, if the injury is: (a) Caused by rapid repetitive \nmotion.” \nThe supreme court in Malone v. Texarkana Public Schools., 333 Ark. \n343, 969 S.W.2d 644 (1998), noted that the legislature did not establish \n\nSTEWARD – H109777   5\n  \n \n \n \nguidelines as to what constitutes \"rapid repetitive motion\" and that as a \nresult, that determination has been made by the fact-finder in each case. \nAfter reviewing rapid repetitive motion cases, the court in Malone, \nsupra, established a test for analyzing whether an injury is caused by rapid \nrepetitive motion: \"The standard is a two-pronged test: (1) the tasks must be \nrepetitive, and (2) the repetitive motion must be rapid. As a threshold issue, \nthe tasks must be repetitive, or the rapidity element is not \nreached. Arguably, even repetitive tasks and rapid work, standing alone, do \nnot satisfy the definition. The repetitive tasks must be completed \nrapidly.\" Id. The facts of High Capacity Products. v. Moore,  61 Ark. App. 1, \n962 S.W.2d 831 (1998), present a compelling picture of what \nconstitutes rapid repetitive motion. There, the testimony indicated that the \nclaimant used an airgun to assemble blocks by attaching two nuts to each \nblock with a quota of one thousand units per day. Her assembly duties \nrequired her to attach a nut every fifteen seconds. This required three \nmaneuvers to be repeated in succession all day: assembling the separate \nparts, using the air-compressor equipment to attach the parts together with \nnuts, and throwing the units in a box Id. \nWith regard to the alleged injury, the claimant’s job with International \nPaper Company (“IPC”) was “general box worker.” (Hrng. Tr., P. 8). The \nclaimant started this position in March 2019 and alleges he was injured by \n\nSTEWARD – H109777   6\n  \n \n \n \nthe end of May 2019. (Hrng. Tr., Pp. 8, 12-13). The claimant explained that \nfor this job, “the boxes come down the conveyor belt and they are going on \nto a table and we have to check through the boxes to make sure that they \nare correct and no damages. And then we have to push them over to a \nconveyor belt to the left.” (Hrng. Tr., P. 8). The weight of boxes varied from \nan estimated five to fifty pounds. (Hrng. Tr., P. 10). Sliding the boxes is \nassisted by an air pressure thing that helps slide the boxes and by the table \nbeing dampened to be slick. (Hrng. Tr., P. 10). In essence, this position \nconsisted entirely of pushing boxes from one conveyor belt to an inspection \ntable and onto another conveyor platform that actually grabs the boxes, \nturns them, and takes them to another area. (Hrng. Tr., P. 12). \nAny claim for a rapid repetitive motion injury here fails at the second \nprong of the analysis, even if the assessment for the purposes of argument \nthe job was repetitive. There is no proof that the motion required to push \nboxes from one place to another was rapid. While the claimant alleges that \nthe conveyor moved “fast,” he provided no details on how many boxes he \nwould handle per minute, the number of boxes he handled per shift or how \nmuch time was spent on each shift performing these tasks. (Hrng. Tr., P. \n10). The claimant has simply failed to provide any proof that his work was \nrapid in nature other than his self-serving testimony that the conveyor \nmoved fast. Importantly, a claimant’s testimony is never uncontroverted. Nix \n\nSTEWARD – H109777   7\n  \n \n \n \nv. Wilson World Hotel, 46 Ark. App. 303, 879 S.W.2d 457 (1994). \nAs an initial matter, the ALJ stated in his Opinion that “Claimant \ndescribed the work as ‘really fast,’ and that there were times when the \nboxes he was charged with inspecting and placing on a different conveyor \nline were pushing each other; that indicated to me there were times he was \nnot able to keep up with the rapid pace.” (P. 15). There was no testimony \nprovided by the claimant that he was not able to keep up with the rapid \npace and there was no testimony at all as to the pace other than his \nstatement that it was “really fast.” (Hrng. Tr., P. 10). It is up to the claimant \nto prove by a preponderance of the evidence his job was rapid and \nrepetitive and it is not enough for him to state his own opinion that his job is \nrapid and repetitive. With that statement, the claimant reached his own legal \nconclusion which was accepted by the ALJ and the Majority.  \nSimply put, “[s]peculation and conjecture cannot substitute for \ncredible evidence.” Smith-Blair, Inc. v. Jones, 77 Ark. App. 273, 72 S.W.3d \n560 (2002) (citing Dena Constr. Co. v. Herndon, 264 Ark. 791, 575 S.W.2d \n155 (1980)). Since no proof was presented other than the claimant's \nstatement that the conveyor moved fast, he has not satisfied his burden of \nproof that his job was rapid. The statement by the ALJ that the claimant’s \ntestimony indicated to him there were times that the claimant was not able \nto keep up with the rapid pace does not satisfy the claimant’s burden of \n\nSTEWARD – H109777   8\n  \n \n \n \nproof when the record contained no testimony as to the pace of the \nclaimant’s job. \n Even if the claimant successfully establishes that his injury was \ncaused by rapid repetitive motion, he has shown no proof of a causal \nconnection between his injury and his work at IPC. When the primary injury \nis shown to have arisen out of and in the course of employment, the \nemployer is responsible for any natural consequence that flows from that \ninjury. Ingram v. Tyson Mexican Original, 2015 Ark. App. 519 (2015). \nHowever, for this rule to apply, the basic test is whether there is a causal \nconnection between the injury and the consequences of such. The burden \nis on the employee to establish the necessary causal connection. Id. \nThroughout the claimant’s treatment for the right bicep tear, his \nproviders agreed that this was not a workers’ compensation matter. First, at \nan August 31, 2021 visit, Patrick Walton, PA reported that the injury “[d]oes \nnot appear to be a workers comp. issue.” (Resp. Ex. 1, P. 56). Then, on \nOctober 20, 2021, when specifically asked on a disability form whether the \ninjury was work related, Dr. Steven Smith indicated no. (Resp. Ex. 1, P. 63). \nDr. Smith reiterated on January 22, 2022 that this injury was not work \nrelated. (Resp. Ex. 1, P. 71). In addition, in his Operative Report dated \nSeptember 30, 2021, Dr. Smith noted “significant synovitis . . .and actually \nquite a bit of degenerative change” with “grade 3 chondromalacia with some \n\nSTEWARD – H109777   9\n  \n \n \n \ndelamination of the cartilage” and “[s]ignificant bursitis.” (Resp. Ex. 1, P. \n62). This is additional evidence that the claimant’s medical conditions were \nnot work related. \nII. This injury is not compensable due to the Shipper’s \nTransport defense. \n \nIn Shipper's Transport of Georgia v. Stepp, the Arkansas Supreme \nCourt adopted the rule that a claimant's false representation regarding his \nphysical condition in procuring employment will bar the claimant from \nobtaining benefits if the employer shows that (1) the employee knowingly \nand willfully made a false representation as to his physical condition; (2) the \nemployer relied on the false representation and this reliance was a \nsubstantial factor in the hiring; and (3) there was a causal connection \nbetween the false representation and the injury. Whether or not these \nfactors exist are questions of fact for the Commission to resolve findings are \nsupported by substantial evidence. 265 Ark. 365, 578 S.W.2d 232 (1979); \nNewsome v. Union 76 Truck Stop, 34 Ark. App. 35, 805 S.W.2d 98 (1991).  \nThe ALJ correctly determined that the claimant knowingly made false \nrepresentations as to his physical condition. The claimant was required to \ncomplete a questionnaire regarding his physical health, provide his health \nhistory to IPC, and undergo a health assessment with Cynthia Johnson, \nAPRN prior to beginning work. (See Resp. Ex. 2, Pp. 2-11). While the \n\nSTEWARD – H109777   10\n  \n \n \n \nclaimant alleges that he did not understand the questions posed on the \nArkansas Occupational Health Clinic intake questionnaire, his excuses fall \nflat. (See Resp. Ex.2, Pp. 8-9). While the claimant states that he assumed \nthe questionnaire was “saying do you have any of these symptoms now,” \nthe form is clear in asking, “Have you ever had or have you now” a number \nof medical conditions including migraines; neck, shoulder, or arm pain, \ninjury or surgery; back pain, strain, herniated disc, or surgery; and a \ncondition which would require a specific work assignment. (Hrng. Tr, P. 44, \nResp. Ex. 2, Pp. 8-9). The claimant selected “no” for each, directly \ncontradicting his medical history. (See Resp. Ex. 1, Pp.1-47). \nThe claimant’s misrepresentation of his medical history was a factor \nin his employment. Due to the claimant’s self-reporting on the intake \nquestionnaire, Cynthia Johnson approved him to work with no restrictions. \n(Resp. Ex. 2, P. 11). IPC expects prospective employees to answer \ntruthfully on these questionnaires. (Hrng. Tr., P. 60). These responses \naffect an employee’s placement within the company and any job \nrestrictions. Id. While the ALJ notes that the forms the claimant completed \ndishonestly were “Post-Offer/Pre-Placement Health” documentation, he fails \nto investigate the correlation between the information in these forms and \nthe claimant’s final hiring and placement with IPC. The health evaluations \nconducted by IPC impact an employee’s placement and duties and surely \n\nSTEWARD – H109777   11\n  \n \n \n \nimpact their ultimate employability. (Hrng. Tr., P. 61). An employer’s \nreliance on false statements by a prospective employee should not be \nlimited to the moment of hiring - this factor is relevant throughout the hiring \nprocess. A reasonable interpretation of Shippers Transport would support \nthe position of the respondent. The respondent relied on false statements \nmade by the claimant on his employment application when placing him in \nhis specific job, which is a part of the hiring process. A claimant should not \nbe rewarded for making false statements on his employment application. \nFor this reason, IPC’s reliance on the claimant’s false statements is \nsufficient to meet the requirements of a Shipper’s defense. \nThe ALJ determined the respondents failed to show a causal \nconnection between the claimant’s current complaint and his 2019 car \naccident. After his May 11, 2019 accident, the claimant presented at Valley \nHealth Care in Fort Smith on June 26, 2019 complaining of “numbness \ndown right arm and into hand” and radiating right arm pain. (Resp. Ex. 2, P. \n6). The claimant’s complaints of radiating right arm pain continued through \nhis June 27, 2019, June 28, 2019, July 3, 2019 and July 22, 2019 visits with \nValley Health. (Resp. Ex. 1, Pp. 10-12, 15). The claimant visited Valley \nHealth an additional three times with continued complaints of numbness \nand pain in his right arm before being released from care on August 1, \n2019. (Resp. Ex. 1, Pp. 16-19). The claimant then began treating with Dr. \n\nSTEWARD – H109777   12\n  \n \n \n \nDanny Silver at Meridian Clinic in Fayetteville, who stated that the claimant \nreported his pain “interferes with sleep, work and ADL’s.” (Resp. Ex. 1, P. \n26 error in original). At that appointment, the claimant complained of right \narm numbness, right shoulder pain, radiating pain in his right arm and right \nshoulder along with muscle spasms. (Resp. Ex. 1, P. 24). In his past \nmedical history, his symptoms were listed as “strain of tendons at shoulder \nand upper arm level, right arm.” (Resp. Ex. 1, P. 24). At a September 25, \n2019 visit with Dr. Silva, the claimant reported “joint pain, excessive muscle \naches, neck pain, upper extremity pain, shoulder pain, and \nnumbness/tingling sensations.” (Resp. Ex. 1, P. 30). At that visit, Dr. Silva \nconsidered that claimant may have suffered a strain of other muscles, \nfascia, and tendons at his shoulder, upper arm, and right arm. (Resp. Ex. 1, \nP. 31).The claimant was informed that he was unlikely to ever fully recover \nfrom these injuries. (Resp. Ex. 1, P. 6). \nAfter his alleged injury while working for IPC, the claimant presented \nto the Good Samaritan clinic in Fort Smith with complaints identical to those \nfrom 2019, including “a constant discomfort, achy pain” in his right arm. \n(Resp. Ex. 1, P. 48). By June 10, 2021, the claimant’s right shoulder pain \nhad improved. (Resp. Ex. 1, P. 49). From these similarities, it is evident that \nthe claimant’s issues were a result of ongoing damage from his 2019 car \naccident. At that time, no efforts were made to find a concrete source of the \n\nSTEWARD – H109777   13\n  \n \n \n \nclaimant’s right shoulder and arm pain, and his doctors believed he was \nunlikely to fully recover from that injury. For this reason, the respondents \nhave proved the final prong of the Shipper’s defense and should not be \nresponsible for the claimant’s injury. \nAdditionally, Shippers Transport should not be so narrowly \ninterpreted by the ALJ and the Majority in this case. Had the Supreme Court \nin Shippers Transport been presented with the facts of this case, I think \nthey would have reached the same result as I have reached that the \nClaimant should be barred for his untruthful answers on his employment \napplication especially because his answers were used by IPC to determine \nthe particular employment activity to which he should safely be assigned, \nwhich was part of the overall hiring process. The rule of law in the Shippers \nTransport case should be expanded beyond the actual moment of hiring to \nencompass the entire hiring process, including job placement. To narrowly \ndefine the law of the Shippers Transport case destroys the intent of the \nSupreme Court decision to protect employers when claimants have been \nuntruthful in the responses to the questions on the employment \napplications. To rule otherwise merely rewards the claimant for being \nuntruthful and punishes the employer and the workers' compensation \ninsurance carrier for relying on these false statements. This limited defense \ncannot be what the Supreme Court intended when they ruled in the \n\nSTEWARD – H109777   14\n  \n \n \n \nShippers Transport case.  \nFor the reasons stated above, I respectfully dissent. \n \n \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner","preview":"NOT DESIGNATED FOR PUBLICATION BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H109777 RONALD L. STEWARD, EMPLOYEE CLAIMANT INTERNATIONAL PAPER CO., EMPLOYER RESPONDENT SEDGWICK CLAIMS MANAGEMENT SERVICES, INC. CARRIER/TPA RESPONDENT OPINION FILED MAY 2, 2023 Upon review before the FULL COMMISSION, Littl...","fetched_at":"2026-05-19T22:29:46.363Z","links":{"html":"/opinions/full_commission-H109777-2023-05-02","pdf":"https://labor.arkansas.gov/wp-content/uploads/Steward_Ronald_H109777_20230502.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/"}}