{"id":"full_commission-H204212-2023-07-26","awcc_number":"H204212","decision_date":"2023-07-26","opinion_type":"full_commission","claimant_name":"Johnny Hayes","employer_name":"Wal Mart Associates, Inc","title":"HAYES VS. WAL MART ASSOCIATES, INC. AWCC# H204212 JULY 26, 2023","outcome":"unknown","outcome_keywords":[],"injury_keywords":["shoulder","rotator cuff","repetitive","wrist","back","strain"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/Hayes_Johnny_H204212_20230726.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Hayes_Johnny_H204212_20230726.pdf","text_length":33929,"full_text":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n \nCLAIM NO.  H204212 \n \nJOHNNY R. HAYES, \nEMPLOYEE \n \nCLAIMANT \nWAL MART ASSOCIATES, INC.,  \nSELF-INSURED EMPLOYER \nRESPONDENT \n  \n      \nOPINION FILED JULY 26, 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 MICHAEL C. STILES, \nAttorney at Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Affirmed. \n \n \n OPINION AND ORDER \nThe claimant appeals an administrative law judge’s opinion filed \nDecember 29, 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 Johnny Ray Hayes, now age 59, treated at Midwest Orthopaedic \nInstitute on February 5, 2013: \nJohn Hayes is a 49-year-old right-hand-dominant gentleman \nwho sustained an injury on 2/4/13.  He states he is the \n\nHAYES - H204212  2\n  \n \n \noperations manager at Northern Illinois Fence in Cortland.  He \nwas using a Bobcat to clear the snow so that his employees \nwould not get injured.  While he was trying to get out of the \nBobcat he slipped and fell.  He struck the L1-2 area against a \nprominent hard area on the Bobcat and fell also onto his right \nelbow, axially loading his shoulder.  He states that he felt as \nthough something ripped in his shoulder.  He noticed that he \ncould not really move his arm after he fell. \nThe patient has some pain at his right elbow as well.... \nRADIOGRAPHIC EVALUATION:  Multiple views of the right \nelbow show posterolateral olecranon spurring which is mild.   \n \n A physician’s impression was “1.  Right shoulder weakness likely \nassociated with rotator cuff tear.  2.  Elbow contusion which is presently \nasymptomatic.” \n The claimant testified that he became employed with the \nrespondents in May 2021.  The claimant testified that he initially worked in \nthe respondent-employer’s Receiving Department, “Unloading freight and \nputting it on the conveyor belt.”  After several months, the claimant testified, \nhe began unloading trucks for the respondents, a “quantity of 700 boxes an \nhour, 7,000 a night.”  The claimant testified that he unloaded trucks 11 \nhours daily, three days per week.   \n The claimant testified on direct examination: \nQ. And what happened to your right elbow as you worked \nfor Walmart? \nA. It progressively started hurting more and more as I’m  \nlifting heavier freight off the floor and repetitive motion \nis basically the way I saw it....I was hurting more and \nmore in my right elbow as I was doing repetitive \nmotion, unloading the freight out of a semi.   \n \n\nHAYES - H204212  3\n  \n \n \nQ. Can you describe the motion that you were making? \nA. From right to left, right to left, keeping my feet in place.   \nQ. And that was using both hands? \nA.   Yes.... \nQ. And how did the box get off the truck? \nA. From me picking the box up and me putting the box on  \nthe conveyor. \nQ. So you were standing in the truck? \nA.   Yes....The conveyor belt was manually operated where  \nI could bring it in and out of the semi, so it would be  \nright next to me as I am unloading.   \nQ. And when you began having these issues with your  \nright elbow, did you report it to anybody at work? \nA. Yes, I reported it to Heather Mays about freight being  \nheavy and having to pick it up off the floor, can we do  \nsomething about it, it’s really bothering my arm.... \nQ. And did you speak to anyone else about your right arm  \nhurting? \nA. Yes.  Tim Wicks I believe is his last name.   \nQ. And who is he?  What’s his position? \nA. Manager at Walmart.  He was someone that I reported  \nto, also, like Heather Mays.   \nQ. And did he respond to you in any way when you  \nreported it? \nA. He also took photos, said he would e-mail higher up  \nand see if we could get this changed because it is an \nissue, and we understand that it is hurting your arm, \nand that’s what they told me and it never – it never \nworked out.  I had no response from them afterward.   \nQ. So your job was never changed? \nA. No.... \nQ. When do you believe that you began complaining of  \nyour arm? \nA. Around November of 2021.  \n\nHAYES - H204212  4\n  \n \n \n  \nQ. And between November of 2021 and January of 2022,  \nhow did your arm do? \nA. It was in pain every night.  I had to wear a brace on my  \narm.  I had to take Tylenol every day.  It was not a \ngood feeling, and it was pulling pain in my right \nelbow.... \nQ. And the receiving department, is that the department  \nyou were in in January of 2022? \nA.       Yes. \n \n The parties stipulated that the employee-employer-carrier \nrelationship existed on January 20, 2022.  The claimant testified on direct \nexamination: \n  Q. What happened on January 20\nth\n? \nA. Me and my wife went to Home Depot to get some  \nbuilding materials to do a small project, and I reached  \nout to grab a sheet of plywood and I pulled it and  \nsomething pulled in my arm and snapped and popped,  \nand it went from all the way to my wrist and it – I could  \nnot extend my arm.  I could not pull my arm to my  \nchest.   \nQ. And was that – the feeling that you felt, was that in your  \nright elbow? \nA.       Yes.   \n \n According to the record, the claimant treated at Mercy Hospital \nNorthwest Arkansas on January 20, 2022.  The claimant’s Chief Complaint \nwas “Arm pain (Pt was carrying piece of plywood and felt ‘pop’ in R arm.  \nHx of previous ligament repair in shoulder).” \nDr. Clarence J. Dye examined the claimant on January 20, 2022: \n\nHAYES - H204212  5\n  \n \n \nPatient is a 58-year-old man who presents for right arm pain.  \nPatient reports he was at work today and was moving boxes \nhad a pop in his right upper arm with acute onset of pain has \nbeen moderate to severe and worse with extension of his \narm.... \nRight upper extremity neurological exam is intact including \nsensation to light touch to thenar, medial palm, lateral dorsum \nof hand, and medial dorsum of hand.... \nElbow with no tenderness.  No gross deformity, no swelling, \nno warmth, and no erythema.  Full active ROM with flexion \nand extension.... \nHe was given a prescription for hydrocodone for breakthrough \npain and fitted with an arm sling and will need to follow-up \nwith a doctor from the Mercy doctor finder service with \npossible need for orthopedic referral and further imaging if \ncontinued symptoms. \nPatient reported improvement on reexamination and \nagreeable to discharge.  Denied new complaints.... \n \n Dr. Dye diagnosed “Pain of right upper arm (Primary).”  A nurse \nnoted on January 20, 2022, “Pt stated he was lifting plywood and heard a \npop in his elbow then it started hurting.  Pt states he can bend his right arm \nbut not straighten it out.”  Dr. Dye signed a note on January 20, 2022 which \nindicated, “John Hayes is able to return to work on:  01/26/2022.”   \nThe claimant e-mailed representatives of the respondent-employer \non January 21, 2022: \nHi guys I have some bad news I was lifting some plywood last \nnight and I either broke my arm or tore tendons in my right \narm I went to the ER they told me I probably tore a tendon or \nripped a bicep muscle they were not able to go a MRI and \nwas told to go to a regular physician to get a appointment with \na specialist due to the fact that I have previous surgery on my \narms, I called this morning and talked to Alicia in HR and she \ntold me to go and file a claim on Sedgwick I’m pretty sure I did \nit right I have the claim number the emergency room doctor \n\nHAYES - H204212  6\n  \n \n \ntold me to take off work at least until Wednesday I will let you \nknow the outcome after I see a orthopedic specialist, I would \ncome back to work regardless of the pain but I am unable to \nstraighten my arm so I don’t think I would be any good, I’m not \nsure what the outcome is going to be but I will keep you \ninformed Thank you.   \n \n An APRN noted on January 26, 2022: \nJohn presents in clinic with his spouse to establish care and \nfor his ED follow up.  He was seen in the ED January 20\nth\n with \ncomplaints of right arm pain.  He might have injured himself at \nwork.  He admits to throwing boxes at work, so he’s dealt with \nmild pain and swelling to his right upper arm for the past \nmonth.  He also might have injured himself the day of his ED \nvisit.  He states he was moving a sheet of plywood while at \nHome Depot.  He also mentioned having history of rotator cuff \nsurgery bilaterally. \nNo imaging was performed.  He was prescribed Norco for \npain relief, which he did not pick up.  He continues having \nsharp pain along his right elbow, with radiating pain down to \nhis right wrist and right shoulder.... \nMusculoskeletal exam:  muscular tenderness noted along \nright medial epicondyle.   \n \n The diagnosis on January 26, 2022 included “Right arm pain.”  The \nAPRN stated on January 26, 2022, “He may return to work Monday, \nFebruary 14\nth\n.”   \n Dr. Jeffrey Johnson provided a Patient Care Summary on February \n10, 2022: \n1.  Mr. Hayes was exceedingly frustrated with our front office \ntoday about the fact that he was not having an MRI today.  \nHe is also very frustrated that he was not contacted about \nthe clinic being canceled although again at the end of the \nclinic visit my office manager visited with him about our \nattempts to contact him.   \n\nHAYES - H204212  7\n  \n \n \nHe was also frustrated that I would not fill out his extensive \nSedgwick FMLA paperwork today before he left the office.  \nI spoke with both he and his accompanying family member \nthat this is not going to be filled out in lieu of me seeing \nother patients but I be happy to give him a work note that \nstates he has a 10 pound limit on his right arm pending the \nresults of his MRI.  His working diagnosis is medial \nepicondylitis.  I would recommend an MRI as below.... \nVicki provided him with a 10 pound limit on his right arm.  \nHe told her specifically “it was a waste of time to have \nbeen sent here.”  He was also quite frustrated with me and \nI addressed this directly.  He was frustrated about his \nweight, about the delay because of the weather, and about \nthe fact that he was not having an MRI today.  I spoke with \nboth he and his family member that other providers do not \nsend people to other doctors offices with orders for \nimaging studies but that he was referred here for a \nconsultation and I would recommend an MRI because of \nthe “pop” in his medial elbow.   \nI understand that his job does not have limited duty.  My \nworking diagnosis is medial epicondylitis and I am giving \nhim a 10 pound limit pending his MRI report especially \ngiven the fact that he has no swelling, no ecchymosis, and \nfull elbow range of motion. \n2.  With respect to the main reason that he is here, his medial \nelbow pain.  My working diagnosis is medial epicondylitis \nas his exam is consistent with this.  I do think that it is \nworth obtaining a MRI arthrogram of his right elbow given \nthe “pop” on 1/22/2022 when he picked up a sheet of \nplywood.   \nI would recommend the MRI be done at Washington \nRegional....I will order an MRI arthrogram of the right \nelbow to evaluate medial elbow pain and “pop.”   \n3.  He also mentions that he has pain in his shoulder and he \nasked if the work-up would be examining that.  We will \nrequest records from Dr. Glasgow regarding his shoulder \nspecifically I need to know if she did a tendon transfer from \nthe elbow to his shoulder which may be what he is \ndescribing.   \nI offered to send him to a shoulder doctor.  At the moment, \nwe will hold off on this.   \n\nHAYES - H204212  8\n  \n \n \n4.  I will see him back when the MRI is complete.  We \ndiscussed that that would not be the same day of the \nstudy.  X-rays are not required on return.   \n \nDr. Andreas Chen examined the claimant on March 1, 2022: \nA 58-year-old right-hand dominant male, who works at the \nWal-Mart distribution center, who presents today for \nevaluation of his right upper extremity.  He states that he was \nlifting a sheet of plywood on 01/20/2022 when he felt a pop \nand had significant pain that radiated from the medial aspect \nof his elbow to the shoulder and from the radial aspect of his \nelbow to his wrist.  Since then, he has been having pain and a \nbump over the medial aspect of the elbow.  Of note, he \npreviously had a dislocation of his right shoulder which \nrequired a labral repair and rotator cuff repair at an outside \ninstitution.  He notes that he has been having significant pain \nin the medial aspect of the elbow that radiates to his pinky and \nhis small fingers.  He is here today for evaluation and care.... \nEXTREMITIES:  Right upper extremity examination reveals no \ngross deformities.  He does have what appears to be an \navulsion of his medial flexor pronator mass *** the medial \nepicondyle.  He is significantly tender to palpation over the \nmedical epicondyle.  He has significant pain with palpation of \nthe ulnar nerve.... \nIMAGING:  AP and lateral of the right elbow were reviewed \nfrom previously revealing no fractures or dislocations.  No \narthritic changes are noted.   \n \n Dr. Chen assessed “A 58-year-old male with a potential avulsion of \nhis right flexor pronator mass from the medial epicondyle versus medial \nepicondylitis.  He also likely has right cubital tunnel syndrome.”  Dr. Chen \nplanned additional diagnostic testing, and occupational therapy.   \n An occupational therapist noted on March 4, 2022, “Patient reports \nhe was at Home Depot, lifting a piece of plywood when he felt a ‘pop’ in his \nright UE.  He had an immediate onset of pain.  Of note, he had right \n\nHAYES - H204212  9\n  \n \n \nshoulder surgery about 8 years ago.  Since the injury, he complains of \nnumbness and tingling in the RF and SF.  He describes the pain in his ulnar \nelbow and this is sensitive to touch.”  It was also noted on March 4, 2022, \n“Patient does work at Walmart.  He is currently off on FMLA.  His job \nrequires heavy lifting.”  The occupational therapist reported, “It does appear \nhe had swelling/bulge in flexor mass of the forearm.” \n An MRI of the claimant’s right elbow was taken on or about March \n15, 2022 and was compared with radiographs from January 26, 2022.  The \nfollowing impression resulted: \n1.  Medial epicondylitis with associated high-grade partial-\nthickness undersurface tear of the common flexor tendon \nat its humeral attachment. \n2.  Insertional biceps tendinosis with high-grade partial-\nthickness tear of the short head of the biceps tendon at its \ninsertion on the radial tuberosity.  Adjacent focal grade 1 \nstrain of the supinator muscle medially.   \n3.  Additional mild tendinosis of the distal triceps and common \nextensor tendon origin.   \n \n The claimant continued to receive occupational therapy visits.   \n The claimant followed up with Dr. Chen on April 1, 2022: \nA 58-year-old male, who presents back today for evaluation of \nhis medial elbow.  He has been having pain there.  Still he \nrecently underwent a nerve conduction study and MRI of his \nelbow.  He is here today for further evaluation and care.   \nPHYSICAL EXAMINATION:  Right upper extremity \nexamination reveals a palpable step-off due to the flexor \npronator mass avulsion just distal to the medial aspect of the \nelbow.... \n\nHAYES - H204212  10\n  \n \n \nMRI of his elbow reveals an avulsion of his medial flexor \npronator mass.  It was retracted by approximately 1 cm.  I do \nnot notice a UCL tear.   \nNerve conduction studies from Dr. Barbara Bess from \n03/30/2022 were reviewed revealing decreased velocities at \n39.4 m/sec in right ulnar nerve.  No diminishment in amplitude \nis noted.  He has no EMG changes noted.   \n \n Dr. Chen assessed “A 58-year-old male with right cubital tunnel \nsyndrome and an avulsion of his right flexor pronator mass.  PLAN:  I told \nhim that he has 2 things going on.  We can fix those at the same time.  \nWhat I can do is an in-situ cubital tunnel release.  During that same \nprocedure, I can repair of the flexor pronator mass.  It is not going to be \n100% though, but hopefully it will help him with that pain.”   \n Dr. Chen performed surgery on April 11, 2022:  “1.  Right cubital \ntunnel release.  2.  Right flexor pronator origin avulsion repair.”  The pre- \nand post-operative diagnosis was “1.  Right cubital tunnel syndrome.  2.  \nRight medial epicondylitis.”  The claimant received follow-up treatment after \nsurgery.   \n Dr. Chen noted on July 1, 2022: \n50-year-old male, who is now almost 12 weeks out from his \nsurgery, he has been doing good, he is still sore, he is still \nweak on his elbow.  He states that it feels like he gets stiff \nespecially in the mornings.  He is unable to fully extend his \nelbow.  He notes that he has pain especially when he is using \na nail gun.  He also notes that when he is slapping something, \nit hurts him significantly over the medial aspect of the elbow.  \nHe has not done any therapy as he is without insurance.  He \ncurrently has an attorney to try to get on Workman’s Comp.... \n\nHAYES - H204212  11\n  \n \n \nPLAN:  The patient tells me that he was having significant \npain in his right medial aspect of the elbow before his final \ninjury on 01/28/2022.  He states that he was doing significant \nrepetitive motion of lifting of boxes and had been lifting 7000 \nboxes in an 11-hour shift.  This may have contributed to his \ninjury over the medial aspect of the elbow.  Currently, he is \nunable to do the same type of work as that requires a \nsignificant amount of repetitive motion and significant amount \nof resistance on the elbow and may impair the repair.  I told \nhim I do not think that he would be able to qualify for \ngovernment disability as he would be able to do other jobs, \nbut he would have significant difficulty going back to his \nprevious job.  I do think that this will get better and I think that \nhe will get stronger, but it will take some time.  There is a long \ndelay prior to undergoing a surgery.  Let us see him back in \nanother two months for repeat evaluation.   \n \n Dr. Chen assessed “A 58-year-old male, 11-1/2 weeks status post \nright cubital tunnel release and right flexor pronator repair.”   \nA pre-hearing order was filed on August 4, 2022.  According to the \ntext of the pre-hearing order, the claimant contended that he was “entitled \nto medical treatment and temporary total disability benefits for his right \nupper extremities (sic) injury.  Claimant reserves all other issues.” \n The parties stipulated that the respondents “have controverted the \nclaim in its entirety.”  The respondents contended, “1.  The respondent \ncontends the claimant, who was hired on May 24, 2021 did not sustain a \ncompensable gradual-onset elbow injury (that culminated on January 20, \n2022) as defined by Arkansas law.  According, the claimant is not entitled to \nany benefits whatsoever.  2.  The respondent has denied and controverted \nthis claim in its entirety; thus, the respondent has not paid any benefits to or \n\nHAYES - H204212  12\n  \n \n \non behalf of the claimant as a result of his purported right elbow injury.  3.  \nThe claimant’s supposed injury did not occur out of and in the course and \nscope of the claimant’s employment for the respondent employer.  4.  The \nrespondent respectfully contends that the claimant’s job for the respondent \nemployer was neither rapid nor repetitive.  5.  The claimant is not entitled to \nany benefits herein, as the claimant’s need for medical treatment, if any, is \nunrelated to the supposed gradual-onset injury that culminated on January \n20, 2022.  Instead, the claimant’s current ailments and need for medical \ntreatment, if any, is related to any unrelated and/or pre-existing condition.  \n6.  In the alternative, if it is determined the claimant sustained a \ncompensable injury, then the respondent hereby requests a setoff for all \nbenefits paid by the claimant’s group health carrier, all short-term disability \nbenefits received by the claimant, all long-term disability benefits received \nby the claimant, and all unemployment benefits received by the claimant.  7.  \nThe respondent reserves the right to amend and supplement its contentions \nand position after additional discovery has been completed.”   \n The parties agreed to litigate the following issues: \n1.  Whether claimant sustained a compensable injury on \nJanuary 20, 2022. \n2.  If compensable, whether claimant is entitled to temporary \ntotal disability benefits and medical benefits. \n3.  Compensation rates.   \n4.  Attorney fees.   \n \nThe claimant followed up with Dr. Chen on September 8, 2022:   \n\nHAYES - H204212  13\n  \n \n \nA 59-year-old male, who is now 5 months out from his \nsurgery.  He has been doing poorly.  He continues to have \npain over the medial and lateral aspects of the elbow.  \nUnfortunately, due to his insurance status, he has been \nunable to go to therapy visits, but he states that he is getting \nworkman’s comp approved right now.  He notes that his \nthumbs have also been triggering - this is not related to his \nworkman’s comp.... \nHe has not done any therapy.  Usually, I do send people to \nTherapy after a flexor pronator repair.  I would like for him to \nbe therapy (sic).  I would like him to sign up for Mercy \nFinancial Aid if he is ineligible for Workman’s Comp.  I do \nthink that this is a Workman’s Comp injury though.  I am going \nto send him to Therapy for the medial and lateral aspects of \nthe elbow.  I ultrasounded his elbow.  He does have \nsignificant inflammation and signal over the lateral epicondyle, \nbut not over the medial epicondyle.  I want to see him back in \nanother 6 weeks for repeat evaluation to see how is therapy is \ndoing.  He wants to wait until he gets insurance to get his \ntrigger fingers taken care of.  I told him I can give him an \ninjection at that point.    \n \n Dr. Chen assessed “A 59-year-old male, with right medial and lateral \nepicondylitis even after a flexor pronator repair.”   \nAfter a hearing, an administrative law judge filed an opinion on \nDecember 29, 2022 and found that the claimant failed to prove he \nsustained a compensable injury.  The administrative law judge therefore \ndenied and dismissed the claim.  The claimant appeals to the Full \nCommission.     \nII.  ADJUDICATION \n Act 796 of 1993, as codified at Ark. Code Ann. §11-9-102(4)(Repl. \n2012), provides in pertinent part: \n\nHAYES - H204212  14\n  \n \n \n(A)  “Compensable injury” means: \n(ii)  An injury causing internal or external physical harm to the \nbody and arising out of and in the course of employment if it is \nnot caused by a specific incident or is not identifiable by time \nand place of occurrence, if the injury is: \n(a)  Caused by rapid repetitive motion.... \n \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 Preponderance of the evidence means the evidence having greater \nweight or convincing force.  Metropolitan Nat’l Bank v. La Sher Oil Co., 81 \nArk. App. 269, 101 S.W.3d 252 (2003).  “Major cause” means “more than \nfifty percent of the cause,” and a finding of major cause shall be established \n\nHAYES - H204212  15\n  \n \n \naccording to the preponderance of the evidence.  Ark. Code Ann. §11-9-\n102(14)(Repl. 2012).    \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 gradual-onset injury on January 20, 2022.”  The \nFull Commission finds that the claimant did not prove by a preponderance \nof the evidence that he sustained a compensable injury.  The claimant \nbecame employed with the respondents in May 2021.  The claimant \ntestified that he unloaded boxes for the respondents at a rate of “700 boxes \nan hour,” and the claimant described his work as involving “repetitive \nmotion.”  The claimant testified that he wore a brace on his right arm. \n The parties stipulated that the employee-employer-carrier \nrelationship existed on January 20, 2022.  The claimant testified that he \nwas away from the respondents’ workplace at the time of the alleged injury.  \nThe claimant testified that while shopping at Home Depot, “I reached out to \ngrab a sheet of plywood and I pulled it and something pulled in my arm and \nsnapped and popped, and it went from all the way to my wrist and it - I \ncould not extend my arm.\"  The claimant testified that he felt immediate pain \nin his right elbow.   \n The evidence does not demonstrate that the claimant sustained an \ninjury causing physical harm to his right upper extremity which arose out of \n\nHAYES - H204212  16\n  \n \n \nand in the course of employment.  The claimant has the burden of proving \nsuch an injury in accordance with Ark. Code Ann. §11-9-102(4)(A)(ii)(Repl. \n2012) and Ark. Code Ann. §11-9-102(4)(E)(ii)(Repl. 2012).  The phrase \n“arising out of the employment” refers to the origin or cause of the accident \nand the phrase “in the course of the employment” refers to the time, place, \nand circumstances under which the injury occurred.  J. & G. Cabinets v. \nHennington, 269 Ark. 789, 600 S.W.2d 916 (1980).  In the present matter, \nthe alleged injury to the claimant’s right elbow occurred while he was lifting \na piece of plywood away from the workplace.  A nurse noted on January 20, \n2022, “Pt stated he was lifting plywood and heard a pop in his elbow and it \nstarted hurting.”  The claimant informed the respondent-employer on \nJanuary 21, 2022, “I was lifting some plywood last night and I either broke \nmy arm or tore tendons in my right arm[.]”  An APRN noted on January 26, \n2022, “He states he was moving a sheet of plywood at Home Depot \n[emphasis supplied].”  An injury which occurred at Home Depot was not an \ninjury arising out of or in the course of the claimant’s employment with the \nrespondents. \n Additionally, Dr. Chen reported on March 1, 2022, “He states that he \nwas lifting a sheet of plywood on 01/20/2022 when he felt a pop and had \nsignificant pain that radiated from the medial aspect of his elbow to the \nshoulder and from the radial aspect of his elbow to his wrist.”  Dr. Chen \n\nHAYES - H204212  17\n  \n \n \ndescribed a nonwork-related injury which did not arise out of or in the \ncourse of the claimant’s employment with the respondents.  An \noccupational therapist noted on March 4, 2022, “he was at Home Depot, \nlifting a piece of plywood when he felt a ‘pop’ in his right UE.”  The \noccupational therapist did not describe an injury arising out of or in the \ncourse of the claimant’s employment with the respondents.  In any event, \nDr. Chen performed a right cubital tunnel release and right flexor pronator \navulsion repair on April 11, 2022.  Dr. Chen reported in part on September \n8, 2022, “I would like him to sign up for Mercy Financial Aid if he is ineligible \nfor Workman’s Comp.  I do think that this is a Workman’s Comp injury \nthough.”  It is within the Commission’s province to weigh all the medical \nevidence and to determine what is most credible.  Minnesota Mining & Mfg. \nv. Baker, 337 Ark. 94, 989 S.W.2d 151 (1999).  In the present matter, Dr. \nChen’s opinion that “this is a Workman’s Comp injury” is not supported by \nthe record and is entitled to minimal evidentiary weight.  The weight of \nprobative evidence demonstrates that the claimant did not prove he \nsustained a compensable injury.  The claimant was shopping at Home \nDepot on January 20, 2022 and felt a “pop” in his right elbow while grabbing \na piece of plywood.  This injury occurred away from the workplace and did \nnot arise out of or in the course of the claimant’s employment with the \nrespondents.   \n\nHAYES - H204212  18\n  \n \n \n After reviewing the entire record de novo, the Full Commission finds \nthat the claimant did not prove by a preponderance of the evidence that he \nsustained a compensable injury.  This claim is respectfully denied and \ndismissed. \n IT IS SO ORDERED.  \n \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n     \n    ___________________________________ \n    O. MILTON FINE II, Special Commissioner \n     \n \n \nCommissioner Willhite dissents. \n \nDISSENTING OPINION \n \nThe Administrative Law Judge (hereinafter, “ALJ”) found that Claimant \nhas  failed  to  prove  by a  preponderance  of  the  evidence  that  he  suffered  a \ncompensable gradual-onset injury on January 20, 2022.  \nThe  preponderance  of  the  evidence  supports  a  finding  that  the \nclaimant suffered a compensable gradual onset injury to his right elbow. \nA.C.A. §11-9-102(4)(A)(ii)(a) reads:  \n  \n(4)(A) ‘Compensable injury’ means:   \n \n(ii) An injury causing internal or external physical harm to the \nbody and arising out of and in the course of employment if it is \nnot caused by a specific incident or is not identifiable by time \nand place of occurrence, if the injury is:   \n(a) Caused by rapid repetitive motion. ...  \n\nHAYES - H204212  19\n  \n \n \nTo receive benefits for a gradual onset injury, the claimant must prove \nby a preponderance of the evidence that: (1) the injury arose out of and in \nthe course of his or her employment; (2) the injury caused internal or external \nphysical  harm  to  the  body  that  required  medical  services  or  resulted  in \ndisability  or  death;  (3)  that  the  injury  was  caused  by  rapid  and  repetitive \nmotion; (4) the injury was a major cause of the disability or need for treatment; \nand  (5)  that  the  injury  was  established  by  medical  evidence  supported  by \nobjective findings.  Pulaski County Special School District v. Stewart, 2010 \nArk. App. 487 (2010).   \nThe claimant’s right elbow injury satisfies the criteria for a gradual-\nonset compensable injury.  The issue here is whether the claimant’s injury \narose out of and in the course of his employment.  Regarding his job duties, \nthe claimant testified as follows:  \n \n Q. And after that job, what did you do?  \n A. I went to the receiving dock, unloading semis, and that  \nwould be the whole semitruck of boxes, floor to ceiling,  \nunloading those manually onto a conveyor belt.  \nQ. And did you do just one semitruck a night or more?  \nA. It could be up to four.  It would be a multiple – it would  \nbe quantity of 700 boxes an hour, 7,000 a night.  \nQ. And how many hours at a shift did you work?   \nA. We would have – I was on duty for 11 hours.   \nQ. And how many days a week did you work?  \nA. Three days a week; Saturday, Sunday, and Monday.   \nQ. And so during those 11 hours, was there any other duty  \nthat you had other than unloading the truck?       \n\nHAYES - H204212  20\n  \n \n \nA. No.   \nQ. And how heavy would these boxes be?   \nA. Anywhere from half a pound all the way to 65 pounds,  \n 70 pounds. They were not marked. They’re not weighed. \nThey were just – some were heavy, some were not.   \n \nThe claimant testified that he reported that he was having issues with \nhis right elbow to Heather Mays, Tim Wicks, who was a manager, and Brent, \nan  operations manager.    According to  the  claimant, he  began  complaining \nabout the pain in his elbow around November of 2021.  In addition to reporting \nhis  injury,  the  claimant  wore  a  sports  brace  on  his  right  elbow  when  he \nworked which, according to the claimant, was visible.      \nObjective findings of an injury are present in this matter in the form of \na high-grade partial-thickness undersurface tear of the common flexor tendon \nat  its  humeral  attachment  and  an  insertional  biceps  tendinosis  with  high-\ngrade  partial-thickness  tear  of  the  short  head  of  the  biceps  tendon  at  its \ninsertion on the radial tuberosity.  The claimant’s treatment included a right \ncubital  tunnel  release  and  right  flexor  pronator  origin  avulsion  repair.    The \nclaimant’s work-related injury was the sole reason for him to seek treatment \nfor his right elbow.   \nFinally, the claimant’s injury was caused by rapid repetitive motion.  As \ndescribed  above,  the  claimant  unloaded  7,000  boxes  in  an  11-hour  period \nwithout any other intervening job duties.   I  find  that  the  claimant’s  duties \n\nHAYES - H204212  21\n  \n \n \nrequired rapid repetitive motion and this motion caused his right elbow injury. \nThus, I find that the claimant sustained a compensable, gradual-onset injury.   \nI  am  aware  that  the  claimant  sustained  an  injury  lifting  a  piece  of \nplywood  at  Home  Depot.   However,  it  is unlikely  that  lifting  a  three-quarter \ninch piece of plywood would cause the resulting injury to the claimant’s elbow \nif it were not already compromised by his work injury.  Prior to working for the \nrespondent-employer,  the  claimant  had  no  problems  with  his  right  elbow.  \nThus, I find that the claimant’s work injury was the major cause for the \nclaimant's need for treatment.   \nBased on the aforementioned, I find that the claimant has established \nby  a  preponderance  of  the  evidence  that  he  sustained  a  compensable \ngradual onset injury to his right elbow.   \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner","preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H204212 JOHNNY R. HAYES, EMPLOYEE CLAIMANT WAL MART ASSOCIATES, INC., SELF-INSURED EMPLOYER RESPONDENT OPINION FILED JULY 26, 2023 Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas. Claimant represented by the HONORABLE EVELYN ...","fetched_at":"2026-05-19T22:29:46.248Z","links":{"html":"/opinions/full_commission-H204212-2023-07-26","pdf":"https://labor.arkansas.gov/wp-content/uploads/Hayes_Johnny_H204212_20230726.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/"}}