{"id":"full_commission-H203628-2023-06-09","awcc_number":"H203628","decision_date":"2023-06-09","opinion_type":"full_commission","claimant_name":"William Holmes","employer_name":"Conagra Foods, Inc","title":"HOLMES VS. CONAGRA FOODS, INC. AWCC# H203628 JUNE 9, 2023","outcome":"denied","outcome_keywords":["denied:2"],"injury_keywords":["shoulder","back","repetitive","neck","rotator cuff"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/Holmes_William_H203628_20230609.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Holmes_William_H203628_20230609.pdf","text_length":36676,"full_text":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n \nCLAIM NO.  H203628 \n \nWILLIAM W. HOLMES, \nEMPLOYEE \n \nCLAIMANT \nCONAGRA FOODS, INC.,  \nEMPLOYER \n \nRESPONDENT \nACE AMERICAN INSURANCE COMPANY/  \nBROADSPIRE, INSURANCE CARRIER/TPA \nRESPONDENT \n  \n      \nOPINION FILED JUNE 9, 2023 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE LAURA BETH YORK, Attorney \nat Law, Little Rock, Arkansas. \n \nRespondents represented by the HONORABLE MELISSA WOOD, Attorney \nat Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Reversed. \n \n \n OPINION AND ORDER \nThe claimant appeals an administrative law judge’s opinion filed \nJanuary 31, 2023.  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 proved \nhe sustained a compensable injury to his left shoulder.  We find that the \nclaimant provided timely statutory notice of his compensable injury.  The \nclaimant proved he was entitled to reasonably necessary medical treatment \nand a period of temporary total disability benefits.     \nI.  HISTORY \n\nHOLMES - H203628  2\n  \n \n \n The record indicates that William Wesley Holmes, now age 54, was \nhired by the respondents, Conagra Brands, Inc. in September 2000.  Mr. \nHolmes testified that he initially worked on a processing line for the \nrespondent-employer.  The claimant testified on direct examination: \n  Q.  What’s your current job at Conagra? \n  A.  Spice Utility Prep. \nQ.  Spice Utility Prep.  Do you know approximately when you \nstarted in the spice utility prep area? \nA.  All I know is I been doing it about 17 years.   \nQ.  Okay, that’s fair.  Now, what do you do as a spice utility \nprep employee? \nA.  I – I’m a little nervous, but I’ll be alright. \nQ.  You’re fine. \nA.  They put these blends together for me in one department, \nand then I drive a truck and take these blends and put them \non a rack inside another room, and then I blend them.   \nQ.  So let’s break that down a little bit further.  About what \ntime do you get to work in the morning? \nA.  I usually start at four o’clock every morning.... \nQ.  And where is the first place that you go? \nA.  Well, the first thing I do I have to get a Kevlar glove and a \nknife....I got to get dressed, put a white coat on, and \neverything.... \nQ.  Where do you go next? \nA.  Then I go inside the spice room and get my things I have \nto have to do the job, which is a boat paddle, and I have to \nhave an apron, and a knife, and a glove, a Kevlar glove.... \nQ.  Are you the only one in that room? \nA.  Yes, ma’am.   \nQ.  So you work primarily by yourself? \nA.  By myself.  Yes, ma’am.   \nQ.  Now you get there, you have all these items, what do you \ndo next?  You mentioned driving a forklift to go get your –  \nA.  Yes, I go to the next room to get them and I drive a forklift.  \nI set them up on a – it’s called a spring-loaded thing.  I don’t \nknow what you call it.  It’s spring-loaded.  It goes up and \ndown.  Then I have to walk up.  When I get off the truck and \ngo back around – this is a River blender I blend them in.... \n\nHOLMES - H203628  3\n  \n \n \nQ.  When you pick up those spices, is a forklift lifting up a \npallet? \nA.  Yeah, it’s lifting up a 1200 pound batch....Some of them \nare much heavier.... \nQ.  Do you do this several times during –  \nA.  It’s cumulatively.   \nQ.  Do you drive the forklift over there several times a day or \njust once during the day? \nA.  Several times a day....Back and forth.   \nQ.  You drive the forklift over.  The pallet gets – the forklift \ngets the pallets of spices.  You deliver that to another area.  Is \nthat correct? \nA.  Yeah, I deliver it to the area where I’m working....On that \nthing I was talking about. \nQ.  So there’s a spring –  \nA.  There’s a spring-loaded deal that holds them in place and I \ngo up the stairs and I start stripping the bags.  I have to strip \nthe bag and put it inside of a River blender, which is probably \nas long as this table right here.... \nQ.  Approximately how many bags of spices are on that \npallet? \nA.  There’s a lot. \nQ.  You don’t know a number? \nA.  I don’t know a number.  I’ve never counted them, but I load \ntwelve hundred batches and when we do the others, they’re \ntwo thousand pounds.   \nQ.  These bags that you’re –  \nA.  The bags are 50-pound bags.  Yes, ma’am.   \nQ.  They’re 50-pound bags.  Okay.  And you mentioned that \nyou have to strip them? \nA.  Yes....I mean I have to have my Kevlar glove on and a \nknife, and I have to take them off the pallet with both hands \nand set them on a table, which is this long. \nQ.  It’s about two feet long? \nA.  Yes, and it’s about – and it comes up to about right here. \nQ.  To your waist level? \nA.  Yes, waist level....I take the pallets off and set them on \nthis table, then strip them....I grab the bags, I strip them, take \nthe outside layer off the bag, put them in a trash can, which is \nbelow me.  There’s a trash can below me which is called a \nmuler, and I set them in that.   \n\nHOLMES - H203628  4\n  \n \n \nQ.  Then you use your knife the cut the bag, and you take that \nouter layer off and throw it away? \nA.  Yes.   \nQ.  So you’re doing that with each one of those –  \nA.  Every bag that’s on that pallet.   \nQ.  Then when those bags are de-bagged, I’ll call it –  \nA.  It’s a little square hole.  You just pour it over in there \ncumulatively.  I mean I’m doing it pretty quickly.... \nQ.  Now, approximately how many pallets do you deliver to \nyour area each day? \nA.  Well, we usually run – I can do four an hour.   \nQ.  Four pallets an hour? \nA.  Yes.   \nQ.  And those pallets, do they range in weight from 1200 to \n2000? \nA.  Uh-huh, 2000 pounds.   \nQ.  And each one of the bags that you’re lifting –  \nA.  Are 50-pound bags.  Correct.... \nQ.  So every bag all day long is 50 pounds? \nA.  50 pounds.  Yes.... \nQ.  So you turn to your right, you pick up a pallet and – I’m \nsorry, you pick up a bag and you set it in front of you.  Is that \ncorrect? \nA.  It is in front of me.   \nQ.  Once it’s stripped and opened, you turn to your left and \nyou pour it into a hole.  Is that correct? \nA.  Yeah, until I get it all in there cumulatively.   \nQ.  And so the boat paddle that you have, what do you do with \nthe boat paddle? \nA.  At the end when I get it all out and if they’re all the same \nblend, I don’t have to use that paddle until the last one is \ndone, until I change to another ingredient.  I change to a \ndifferent type of blend.  Then I have to take that pallet with \nboth of these hands, and I have to scrape the bottom of that \nRiver blender out until I get most of it all out.  I do not get all of \nit, but I try to get most of it out.  There’s usually about 60 \npounds left in there.   \nQ.  When you said you used a pallet, do you mean a paddle? \nA.  The paddle.  It’s a boat paddle.   \nQ.  Okay, it’s a boat paddle.  And approximately how many \ntimes a day are you using the boat paddle? \nA.  Probably four or five times a day.   \n\nHOLMES - H203628  5\n  \n \n \nQ.  And you mentioned that you start work at 4:00 a.m.  What \ntime does your shift end? \nA.  I usually get off when I’m done.  It’s usually different hours.  \nI may work eight, sometimes I work 12 hours, sometimes 10, \nsometimes nine.  I mean you don’t ever know.  Whenever I \nget done, I usually leave. \nQ.  So you’re doing this at least eight hours a day? \nA.  No, more than eight hours.... \nQ.  At the time this accident happened, how many days a \nweek were you working? \nA.  Five. \nQ.  Five days a week.  Okay.  Now, you have been doing this \nnow for 17 years, is that correct? \nA.  To the best of my knowledge.   \nQ.  How has your shoulder been for the last 17 years up until \nFebruary of 2022? \nA.  It’s been fine until they started adding more blends.   \nQ.  So what do you mean by that?  How did your job change? \nA.  It changed when they added more blends.  We usually \nonly blend 12, about 12 a day.  Now we’re doing sometimes \n16/18 blends a day.   \nQ.  When you say “blends,” does that mean – \nA.  That’s them pallets that we’re talking about.   \nQ.  Pallets.  So they added more pallets to your day.  Is that \ncorrect? \nA.  That’s correct.   \nQ.  And so tell us what transpired in February of 2022.   \nA.  Well, I started noticing pain in my shoulder, right here, the \nleft shoulder I had the surgery on.  I just thought, you know, it \nwas just a pulled muscle or something, so I never went to the \nnurse or nothing.  I just tolerated it.  So it began to start \nburning and getting worse, so I went and told my supervisor \nTyler that I was going to go see the nurse, which she is here \nright now.  I went and seen Lisa.... \nQ.  Now, when you went to see Lisa, did you tell her your \nshoulder was hurting? \nA.  Yeah.  She sent me to my family doctor.... \nQ.  Did you tell Lisa at that time that you saw her, that first \ntime, that this was a work injury? \nA.  Yes, I believe I did.   \nQ.  Was some workers’ comp paperwork offered to you that \nday? \n\nHOLMES - H203628  6\n  \n \n \nA.  No. \nQ.  What did Lisa tell you to do? \nA.  She just told me to go see my family physician.   \nQ.  And who is your family physician? \nA.  Dr. Kirkland.     \n \n According to the record, the claimant treated with Dr. Allan K. \nKirkland on February 11, 2022: \nNurse’s Note:  53 y/o male unaccompanied here with c/o left \nshoulder pain.  States pain in left shoulder x 1 wk.  Pain \nradiates to deltoid area.  Pain is 10/10 when doing any activity \nor movement with left arm.  Heat helps with the pain.  Didn’t \nfeel anything pop in shoulder, thinks it from over use of arm.  \nNo pain when resting.  Works at Conagra and does repetitive \nlifting 50 lb. bags and uses left arm mostly when pouring the \nbags.  Has paperwork that needs to be completed before he \ncan come back to work.   \nProvider’s Note:  This 53-year-old male presents to clinic \ntoday complaining of left shoulder pain.  Symptoms started \nabout a week ago.  He has a repetitive motion job as above \nand feels that it started at work.  There was no acute injury.  \nPain is severe with forward flexion or abduction at the \nshoulder.  He denies any crepitus or prior injury.  The right \nshoulder is doing fine.   \n \n Dr. Kirkland assessed “1.  Pain of left shoulder joint....Work note \ngiven.”  Dr. Kirkland planned conservative treatment.   \n The claimant testified on direct examination: \n  Q.  Do you go back to your employer? \n  A.  Yes, I went back to see Lisa. \n  Q.  Did you see her that day or the following day? \n  A.  That day.... \nQ.  And what conversation did you have with Lisa at that \nappointment? \nA.  I gave her the paperwork that Dr. Kirkland gave me.  I had \nso many restrictions I couldn’t sweep or do nothing so. \nQ.  Did you ask for workers’ comp? \n\nHOLMES - H203628  7\n  \n \n \nA.  Yes, I did ask for the workers’ comp paperwork.  Yes, I did.   \nQ.  Was it offered to you? \nA.  No, she said we couldn’t go with that.  That’s why we were \ngoing with Sedgwick.... \nQ.  Sedgwick was your short-term disability carrier? \nA.  Yes, ma’am.   \n \n The record contains a document entitled CONAGRA FOODS, INC. – \nDS.  The document was dated February 11, 2022 and included the \nfollowing language:  “Thank you for reporting this claim to Sedgwick.  Below \nplease find a report of the DS claim that was recently reported.”  The report \nalso included the language, “What is the reason for this absence?  Work \nRelated Injury or Illness....EE has shoulder pain in left shoulder.”   \nThe respondent-employer also provided a Return-to-Work \nTemporary Modified Duty Agreement dated February 11, 2022.  The \nTemporary Modified Duty Agreement indicated that temporary modified \nduty would begin on February 14, 2022, and the document included the \nfollowing language:  “In an effort to assist you in recovering from your \nrecent injury/illness, Conagra offers a temporary modified duty program.  \nTemporary modified duty lasts no longer than 90 days and will be reviewed \nwith you on an ongoing basis, at least every 30 days, to determine if it is \nrehabilitative to you, and if you are progressing toward a full duty release.”  \nThe claimant was assigned temporary restrictions:  “Lifting limit 10 lbs, \nseldom carry or lift, primarily sitting with occasional, walking, standing.”  \nHowever, the Temporary Modified Duty Agreement also included the \n\nHOLMES - H203628  8\n  \n \n \nfollowing language:  “We have identified temporary modified duty work \nbased on your abilities, performing the following job tasks:  ‘No \naccommodation.’”  Individuals signing the Temporary Modified Duty \nAgreement included the claimant, a Human Resources Representative, a \nSupervisor/Manager, and the Occupational Health Nurse, Lisa Chambers.   \nDr. Jefferson Cartwright examined the claimant on March 22, 2022: \nWilliam is a 53 year old gentleman referred by Dr. Kirkland for \nevaluation of his left shoulder.  He reports left shoulder pain.  \nHe denies neck pain.  He denies left upper extremity \nparesthesias.  He reports weakness in the left shoulder.  He \ndenies any history of dislocation....He reports no significant \nimprovement after physical therapy....He denies any history of \ninjury but feels that overuse ConAgra may have contributed.  \nHe was taken off work a month ago by Dr. Kirkland.... \nMy impression clinically is that the patient’s left shoulder \nsuffers with a combination of issues which seem to include \nsubacromial impingement, subacromial bursitis, bicipital \ntendinitis, high-grade partial thickness tearing of the \nsupraspinatus, probable low grade partial thickness tearing of \nthe subscapularis, arthritis of the acromioclavicular joint but I \ncannot rule out any labral pathology given the guarding on \nexamination.  Therefore, before making any treatment \nrecommendations, I have recommended that we send the \npatient for an MRI of the left shoulder.  I would like to see him \nback after he has completed that MRI study so that we can \nreview the findings and then discuss treatment options.   \n \n An MRI of the claimant’s left shoulder was taken on April 7, 2022 \nwith the following impression:  “Supraspinatus tendon partial thickness tear.  \n2.  Infraspinatus tendinopathy.  3.  Marked AC joint arthrosis.”   \n The claimant followed up with Dr. Cartwright on April 13, 2022:  “My \nimpression clinically is that the patient’s left shoulder suffers with a \n\nHOLMES - H203628  9\n  \n \n \ncombination of issues which seem to include subacromial impingement, \nsubacromial bursitis, bicipital tendinitis, high-grade partial thickness tearing \nof the supraspinatus, probable low grade partial thickness tearing of the \nsubscapularis, arthritis of the acromioclavicular joint but I cannot rule out \nany labral pathology given the guarding on examination....I would suggest \nhe consider arthroscopy given that he has tried therapy with no benefit.”  \n Dr. Cartwright performed surgery on April 28, 2022:  “Arthroscopic \nanterior labral repair and capsulorraphy of the LEFT \nshoulder....Arthroscopic rotator cuff repair of the SUPRASPINATUS \n(superior rotator cuff) of the LEFT shoulder....Arthroscopic repair of a type 2 \nSLAP lesion of the LEFT shoulder....Arthroscopic resection of the distal \nclavicle of the LEFT shoulder....Arthroscopic extensive debridement of \nsynovium, posterior labrum, subscapularis, and subacromial bursa of the \nLEFT shoulder....Arthroscopic lysis of adhesions and manipulation under \nanesthesia of the LEFT shoulder....Arthroscopic subacromial \ndecompression and acromioplasty of the LEFT shoulder.”  The post-\noperative diagnosis included “High grade partial thickness tearing of the \nsupraspinatus of the LEFT shoulder.”  Dr. Cartwright provided follow-up \ntreatment after surgery.    \nThe claimant signed a Form AR-C, CLAIM FOR COMPENSATION, \non May 10, 2022.  The ACCIDENT INFORMATION section of the Form AR-\n\nHOLMES - H203628  10\n  \n \n \nC indicated the Date of Accident was February 12, 2022.  The cause of \ninjury was described:  “Lt. Shoulder.  Repetitive Motion   Each hour of shift, \nI pick up 50 lb bags (1200 lbs per pallet, 4 pallets per hour) and set on my \nwork table, strip open bag (remove outer layer of bag) then pour contents \nfrom inner layer into rivet blender.  Once each pallet is blended, I weigh, \nseal and move to warehouse location using electric forklift.  Then I go back \n& start over.  Also stack empty pallets & trash at end of shift.”  The CLAIM \nFOR COMPENSATION was filed with the Commission on May 16, 2022. \nA WORKERS COMPENSATION – FIRST REPORT OF INJURY OR \nILLNESS was prepared on May 17, 2022.  The FIRST REPORT OF \nINJURY OR ILLNESS indicated that the TYPE OF INJURY/ILLNESS was \n“L SHOULDER TENDINITIS.”  The injury was described as \nOCCUPATIONAL DISEASE OR CUMULATIVE INJURY which occurred \nwhile the claimant was “LIFTING.”  The FIRST REPORT OF INJURY OR \nILLNESS also indicated that the injury occurred as the result of “L \nSHOULDER REPETITIVE MOTION.”   \nThe claimant signed a Form AR-N, EMPLOYEE’S NOTICE OF \nINJURY on May 24, 2022.  The ACCIDENT INFORMATION section of the \nForm AR-N indicated that the Date of Accident was February 12, 2022, and \nthat the employer was notified of the accident at 7:05 a.m. on February 12, \n2022.  The claimant discussed the cause of injury:  “Repetitive Motion – \n\nHOLMES - H203628  11\n  \n \n \nEach hr of shift, pick up 50# bags, 1200# per pallet, 4 pallets per hr & set \non table, strip open X 2, pour contents into river blender.  Once blended, \nweigh, seal & move to warehouse location using elec. fork lift.  Go back & \nstart again.  End of day – stack empty pallets, c/o trash, etc.” \nThe claimant received physical therapy visits beginning June 9, \n2022.       \nThe record contains a Return-to-Work Medical Assessment Form \ndated August 1, 2022.  The document indicated that the claimant would \nreturn to unrestricted work as of August 3, 2022.   \nThe claimant testified that he returned to work for the respondents on \nAugust 3, 2022.   \nA pre-hearing order was filed on September 13, 2022.  According to \nthe text of the pre-hearing order, the claimant contended, “On 2/12/2022, \nclaimant was lifting several 50-lb bags onto a table.  He has done this for 17 \nyears.  On the day of the accident, he became unable to lift any more bags \ndue to pain in his left shoulder.  Claimant reported the injury to the nurse, \nbut his claim was denied in its entirety.  Claimant sought treatment on his \nown, He had an MRI to his left shoulder, and it revealed a tear.  Claimant \nunderwent surgery.  Claimant contends that he sustained a compensable \ninjury in the scope and course of his employment and that he is entitled to \n\nHOLMES - H203628  12\n  \n \n \nmedical benefits, TTD and that his attorney is entitled to an attorney fee.  All \nother issues are reserved.”   \n The parties stipulated that the respondents “have controverted the \nclaim in its entirety.”  The respondents contended, “Respondents contend \nthat Claimant did not suffer a compensable gradual onset or specific \nincident injury on 2/12/22 while working for Respondent/Employer.  The \nclaimant failed to provide notice of a claimed injury until 5/16/22.  \nRespondents contend that in the event compensability is found, they would \nnot be liable for benefits until receipt of actual notice of a claimed injury.”  \nThe parties stipulated that “if Claimant is able to prove his left shoulder \ninjury to be a compensable injury, the respondent is entitled to a credit for \nshort term disability benefits as provided in the Arkansas Workers’ \nCompensation Act.”   \n The parties agreed to litigate the following issues: \n1.  Whether Claimant sustained a compensable gradual onset \ninjury to his left shoulder culminating on or about February \n12, 2022; or alternatively, whether he sustained a specific \ninjury to his left shoulder on February 12, 2022.   \n2.  Whether Claimant is entitled to payment of medical bills. \n3.  Whether Claimant is entitled to additional medical \ntreatment. \n4.  Whether Clamant is entitled to temporary total disability \nbenefits from February 12, 2022, to August 3, 2022. \n5. Whether Claimant’s attorney is entitled to an attorney fee. \n6.  Respondents raise Lack of Notice as a defense to the \nclaim.   \n \n\nHOLMES - H203628  13\n  \n \n \nAfter a hearing, an administrative law judge filed an opinion on \nJanuary 31, 2023.  The administrative law judge found, among other things, \nthat the claimant failed to prove he sustained a compensable injury.  The \nadministrative law judge therefore dismissed the claim.  The claimant \nappeals to the Full Commission.     \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 \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 \n\nHOLMES - H203628  14\n  \n \n \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.  \nMetropolitan Nat’l Bank v. La Sher Oil Co., 81 Ark. App. 269, 101 S.W.3d \n252 (2003).   \n In workers’ compensation cases, the Commission functions as the \ntrier of fact.  Blevins v. Safeway Stores, 25 Ark. App. 297, 757 S.W.2d 569 \n(1988).  The determination of the credibility and weight to be given a \nwitness’s testimony is within the sole province of the Commission.  Murphy \nv. Forsgren, Inc., 99 Ark. App. 223, 258 S.W.3d 794 (2007).  The \n\nHOLMES - H203628  15\n  \n \n \nCommission is not required to believe the testimony of the claimant or any \nother witness but may accept and translate into findings of fact only those \nportions of the testimony it deems worthy of belief.  Farmers Co-op v. Biles, \n77 Ark. App. 1, 69 S.W.3d 899 (2002).  An administrative law judge’s \nfindings with regard to credibility are not binding on the Full Commission.  \nRoberts v. Leo Levi Hospital, 8 Ark. App. 184, 649 S.W.2d 402 (1983).  The \nFull Commission has the duty to adjudicate the claim de novo and we are \nnot bound by the characterization of evidence adopted by an administrative \nlaw judge.  Tyson Foods, Inc. v. Watkins, 31 Ark. App. 230, 792 S.W.2d \n348 (1990).      \n An administrative law judge found in the present matter, “2.  The \nclaimant has failed to prove by a preponderance of the evidence that he \nsustained a compensable gradual onset injury to his left shoulder \nculminating on or about February 11, 2022.”  The Full Commission finds \nthat the claimant proved by a preponderance of the evidence that he \nsustained a compensable injury to his left shoulder.  The claimant, who we \nfind was a credible witness, has been employed with the respondents since \n2000.  The claimant worked on the “Spice Utility Prep” line for the \nrespondents.  The claimant testified that he unloaded bags of spices from \npallets, and the record shows that the claimant’s work for the respondents \nwas repetitive.  The claimant credibly described “1200 pound” batches on \n\nHOLMES - H203628  16\n  \n \n \npallets which he unloaded and processed at a rate of 50 per hour.  The \nclaimant’s testimony indicated that he performed this work for at least eight \nhours daily.  The claimant’s left shoulder gradually began hurting as a result \nof these work activities.     \n The claimant testified that he reported these symptoms to the \ncompany nurse, Lisa Chambers, beginning about February 11, 2022.  At \nhearing, Lisa Chambers basically denied the claimant’s testimony and \nstated that the claimant did not report that his symptoms were related to \nwork.  Nevertheless, the Full Commission recognizes Dr. Kirkland’s \nFebruary 11, 2022 report where Dr. Kirkland stated, “Works at Conagra and \ndoes repetitive lifting 50 lb. bags and uses left arm mostly when pouring the \nbags.”  The respondents argue that the claimant did not provide statutory \nnotice of his injury.  Yet the record clearly includes a Conagra Foods \ndocument dated February 11, 2022 which states in part, “What is the \nreason for this absence?  Work Related Injury or Illness....EE has shoulder \npain in left shoulder.”  Further, the Modified Duty Agreement indicated on \nFebruary 11, 2022 that the claimant had sustained a “recent injury/illness.”  \nIndividuals signing this document included the claimant, a Human \nResources Representative, a Supervisor/Manager, and the Occupational \nHealth Nurse.  The evidence therefore demonstrates that the claimant \nprovided timely notice in accordance with Ark. Code Ann. §11-9-\n\nHOLMES - H203628  17\n  \n \n \n701(b)(1)(A)(Repl. 2012).  There were clearly objective findings of injury, \ni.e., a “partial thickness tear” shown on April 7, 2022.  The Full Commission \nfinds that the “partial thickness tear” was causally related to the gradual-\nonset injury to the claimant’s left shoulder.  The claimant underwent left \nshoulder surgery on April 28, 2022.   \n The claimant contended on his Form AR-C that he picked up 50-\npound bags at the rate of 1200 pounds per pallet, 4 pallets per hour.  The \nclaimant credibly testified that these duties were performed at least eight \nhours daily and sometimes greater than eight hours daily.  The evidence \nshows that the claimant was repetitively lifting 24 50-pound bags from a \npallet, four times each hour, for a total of 96 bags per hour.  The record \nshows therefore that the claimant was lifting at least 768 50-pound bags \ndaily.  The Full Commission finds that the claimant’s work duties for the \nrespondents were both rapid and repetitive.  See Malone, supra.  The Full \nCommission also notes that the claimant returned to work for the \nrespondents following his release from surgery. \n The Full Commission finds that the claimant proved by a \npreponderance of the evidence that he sustained a “compensable injury” in \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 left \nshoulder, which arose out of and in the course of employment, and was \n\nHOLMES - H203628  18\n  \n \n \ncaused by rapid repetitive motion.  The claimant also established a \ncompensable injury by medical evidence supported by objective findings.  \nThe claimant proved that the compensable injury was the major cause of \nhis disability and need for treatment. \n After reviewing the entire record de novo, therefore, the Full \nCommission finds that the claimant proved he sustained a compensable \ninjury to his left shoulder.  The claimant proved that the medical treatment \nof record, including surgery performed by Dr. Cartwright, was reasonably \nnecessary in accordance with Ark. Code Ann. §11-9-508(a)(Repl. 2012).  \nThe evidence demonstrates that the claimant remained within a healing \nperiod and was totally incapacitated from earning wages beginning \nFebruary 12, 2022 and continuing until August 3, 2022.  The claimant \ntherefore proved that he was entitled to temporary total disability benefits \nbeginning February 12, 2022 and continuing until August 3, 2022.  See Ark. \nState Hwy. Dept. v. Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981).  The \nrespondents are entitled to an appropriate offset in accordance with Ark. \nCode Ann. §11-9-411(Repl. 2012). \n The claimant’s attorney is entitled to fees for legal services in \naccordance with Ark. Code Ann. §11-9-715(a)(Repl. 2012).  For prevailing \non appeal to the Full Commission, the claimant’s attorney is entitled to an \n\nHOLMES - H203628  19\n  \n \n \nadditional fee of five hundred dollars ($500), pursuant to Ark. Code Ann. \n§11-9-715(b)(Repl. 2012). \n IT IS SO ORDERED.      \n \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner \n \n \n \nCommissioner Mayton dissents. \nDISSENTING OPINION \n  I must respectfully dissent from the Majority’s determination that the \nclaimant proved by a preponderance of the evidence he sustained a left \nshoulder injury while employed by the respondent employer on or around \nFebruary 12, 2022, and is entitled to medical treatment and temporary total \ndisability benefits. \n Arkansas Code Annotated section 11-9-102 (4)(A)(ii)(a) provides that \na compensable 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.” \n\nHOLMES - H203628  20\n  \n \n \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 \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 \nbe repetitive, and (2) the repetitive motion must be rapid.  As a threshold \nissue, the tasks must be repetitive, or the rapidity element is not \nreached.  Arguably, even repetitive tasks and rapid work, standing alone, \ndo not 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-compressed equipment to attach the parts together with \nnuts, and throwing the units in a box.  Id. \n\nHOLMES - H203628  21\n  \n \n \nIn the present case, the ALJ determined that while “[i]t is certain that \nthe claimant gave testimony that demonstrated he would be working at a \nrapid pace . . . [i]t is difficult to find it reasonable that some operation or \nmovement of the body is repetitive when that operation or movement only \noccurs during well less than half of the workday.”  (ALJ Op., P. 15).  At the \nNovember 3, 2022 hearing, the claimant testified that over the course of an \neight hour shift, he could deliver and process four pallets an hour.  (Hrng. \nTr., P. 17). Each pallet consists of forty bags of seasoning weighing fifty \npounds each.  Id.  Most days, the claimant lifted, stripped, and emptied \napproximately twelve pallets during an eight-hour shift, although at times he \nmay be called to work longer shifts and to process sixteen to eighteen \npallets per day.  (Hrng. Tr., Pp. 16-19).  Although the hearing testimony did \nnot investigate how the claimant spent the remainder of his days at work, it \nis clear that at the pace he describes, the claimant’s processing work, even \nassuming eighteen pallets per day would be done within approximately 4.5 \nhours, or a little over half of a shift.  For this reason alone, the claimant’s \nwork cannot be considered repetitive.  If the claimant was indeed only \nprocessing twelve pallets or even up to eighteen pallets over the course of \nan eight hour shift, I would argue that his duties were neither rapid nor \nrepetitive given the evident lack of time constraints.  For this reason alone, \n\nHOLMES - H203628  22\n  \n \n \nthe claimant has failed to meet his burden of proving that his injury was \ncaused by rapid repetitive motion. \nAccording to the testimony of the claimant, a normal workday \nconsisted of him processing only twelve pallets during a shift which would \ntake up much less than half of his shift.  Even on the days when he \nprocessed up to eighteen pallets during a shift, this work would only take up \napproximately half of his workday.  Since processing pallets only took up a \nportion of his shift, this activity cannot be considered rapid or repetitive.   He \ndid not testify about being under any time constraints or offer any real proof \nthat the processing of the pallets was rapid.  He testified that he could \nprocess four pallets an hour, but never testified he had to work rapidly to \nprocess four in an hour.  Since the record does not contain any testimony \non this crucial point, the claimant has failed to prove his work was \nrapid.  The claimant testified that on most shifts he processed twelve pallets \nper shift.  The fact he would only handle twelve pallets during an eight hour \nshift is proof itself that his job was not repetitive.  In addition, processing \npallets was not his only job duty.  According to the WorkSmart Analysis \nattached as an exhibit to the claimant’s deposition, there were twelve duties \nhe was to perform during his shift.  (Resp. Ex 3).  The record is devoid of \nany proof or testimony that any of these other duties were rapid or \nrepetitive.  The fact the claimant had many other duties to perform during \n\nHOLMES - H203628  23\n  \n \n \nhis shift that were not rapid or repetitive is additional proof that his job \nduties for the respondent employer were not rapid or repetitive.  \nThe claimant pleads in the alternative that his injury was the result of \na specific incident.  To prove the occurrence of a specific-incident \ncompensable injury, the claimant must establish that (1) an injury occurred \narising out of and in the scope of employment; (2) the injury caused internal \nor external harm to the body that required medical services or resulted in \ndisability or death; (3) the injury is established by medical evidence \nsupported by objective findings as defined in Arkansas Code Annotated \nsection 11-9-102(16); and (4) the injury was caused by a specific incident \nand is identifiable by time and place of occurrence.  Ark. Code Ann. § 11-9-\n102(4)(A)(i); Springfield Grocer Co. v. Chaulsett, 2023 Ark. App. 53, 659 \nS.W.3d 731 (2023). \nThere was little testimony on this point at the November 2022 \nhearing; however, when asked directly both at his deposition and at the \nhearing whether there was “any type of anything specific that happened in \nFebruary,” the claimant testified, “No, it just started hurting,” and described \na “throbbing” sensation.  (Hrng. Tr., P. 34).  In fact, the claimant testified \nthat by February of 2022, his shoulder had been hurting for several weeks \nand he had ignored it.  (Hrng. Tr., P. 30). \n\nHOLMES - H203628  24\n  \n \n \nThe claimant can point to no specific incident that resulted in his \nalleged injury, and he has therefore failed to meet his burden of proof that \nhe sustained a specific incident on or around February 12, 2022.   \nFor the reasons stated above, I respectfully dissent. \n  \n \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner","preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H203628 WILLIAM W. HOLMES, EMPLOYEE CLAIMANT CONAGRA FOODS, INC., EMPLOYER RESPONDENT ACE AMERICAN INSURANCE COMPANY/ BROADSPIRE, INSURANCE CARRIER/TPA RESPONDENT OPINION FILED JUNE 9, 2023","fetched_at":"2026-05-19T22:29:46.282Z","links":{"html":"/opinions/full_commission-H203628-2023-06-09","pdf":"https://labor.arkansas.gov/wp-content/uploads/Holmes_William_H203628_20230609.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/"}}