{"id":"full_commission-H208121-2026-04-29","awcc_number":"H208121","decision_date":"2026-04-29","opinion_type":"full_commission","claimant_name":"Zuleyka Pichardo","employer_name":"Prairie Grove Elementary School","title":"PICHARDO VS. PRAIRIE GROVE ELEMENTARY SCHOOL AWCC# H208121 April 29, 2026","outcome":"granted","outcome_keywords":["granted:7"],"injury_keywords":["thoracic","knee","back","lumbar","fracture","cervical","neck","shoulder"],"pdf_url":"https://www.labor.arkansas.gov/wp-content/uploads/Pichardo_Zuleyka_H208121_20260429.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Pichardo_Zuleyka_H208121_20260429.pdf","text_length":43355,"full_text":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n \nCLAIM NO.  H208121 \n \nZULEYKA PICHARDO, \nEMPLOYEE \n \nCLAIMANT \nPRAIRIE GROVE ELEMENTARY SCHOOL,  \nEMPLOYER \n \nRESPONDENT \nARKANSAS SCHOOL BOARDS ASSN., \nINSURANCE CARRIER/TPA \nRESPONDENT \n  \n      \nOPINION FILED APRIL 29, 2026 \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 JAMES A. ARNOLD II, \nAttorney at Law, Fort Smith, Arkansas. \n \nDecision of Administrative Law Judge:  Affirmed. \n \n \n OPINION AND ORDER \nThe claimant appeals an administrative law judge’s opinion filed \nSeptember 8, 2025.  The administrative law judge found that the claimant \nfailed to prove she sustained a compensable injury “in the form of thoracic \noutlet syndrome.”  After reviewing the entire record de novo, the Full \nCommission affirms the administrative law judge’s opinion.     \nI.  HISTORY \n Zuleyka Maria Pichardo Sanabria, now age 39, testified that she \nbecame employed with the respondents on September 26, 2022.  The \n\nPICHARDO - H208121  2\n  \n \n \nparties stipulated that the employment relationship existed on November 4, \n2022.  The claimant testified on direct examination: \n Q.  Where did you work on November 4\nth\n of 2022? \n A.  I was working at the school, elementary, Prairie Grove. \n Q.  And what was your job there? \n A.  I was serving food to the students.... \n Q.  And what happened on November 4\nth\n of 2022? \nA.  I was serving lunch, some food during lunch.  One of my \nfriends handed me a pizza tray.  I put the pizza tray in the \nwarmer.  So when I was turning around, I actually slipped and \nI fell on my knee.  When I was trying to hold on to something \nwith my left hand, on the sting (sic) table that they had, and \ntried to get up, there was a police officer.  He was a co-\nworker.  His name was Paredes and he tried to help me up.  \nSo I went to the office, to the manager, Danielle.  I actually \nwent with the officer and he helped me interpret.... \nQ.  And how did you land? \nA.  I slipped. \nQ.  And did you fall onto your back or onto your side?  How \ndid you land? \nA.  I fell on my back.   \n \n Danielle Patton testified that she was employed with the \nrespondents.  The respondents’ attorney examined Ms. Patton: \n  Q.  And what do you do there? \n  A.  I am the manager of the elementary kitchen. \n  Q.  Was that your position back in November of ’22? \n  A.  Yes.   \nQ.  Okay.  And I am going to mispronounce her name, but did \nZuleyka Pichardo work in the kitchen at the elementary school \nwhile you were there? \nA.  Yes. \nQ.  And do you recall having a conversation with her on \nNovember 4\nth\n of 2022? \nA.  Yes. \nQ.  What was that about? \nA.  She told me that she fell. \nQ.  And did she tell you what body part she hurt? \n\nPICHARDO - H208121  3\n  \n \n \nA.  She said her knee and lower back. \nQ.  Did she mention any other body parts? \nA.  No.   \nQ.  And was somebody there interpreting for her? \nA.  The janitor at the school.   \n \n According to the record, the claimant treated at MANA Urgent Care \non November 7, 2022: \nMs. Sanabria is a 35 y/o female non-English speaking (Kim \ninterpreted) presents to urgent care c/o “.... I got hurt at \nwork....I slipped....hurt my back....all the back....and the \nknee....right knee and leg.”   \nHer injury occurred three days ago at one of the local schools \nin Prairie Grove.  She did not seek treatment at that time.   \nHer back pain is from “top to bottom” and she points above \nher bilateral scapulas and tells me the pain goes all the way to \nher bilateral lumbar region.... \nBACK:  Back without deformity.  Tenderness about \nparaspinous muscles in thoracic and lumbar region.   \n \n Dr. Brent Witherington assessed “1.  Lumbar back pain,” “2.  Right \nknee pain,” “3.  Acute bilateral thoracic back pain,” and “4.  Morbid obesity.”  \nDr. Witherington planned conservative treatment.   \n An x-ray was taken on November 8, 2022: \n  History:  Mid and lower back pain after fall at work.   \nFINDINGS:  PA and lateral views of the thoracic and lumbar \nspine were obtained.  The T1 vertebral body is not included \non this exam.  There is normal vertebral body height and \nalignment.  No evidence of a fracture or subluxation is seen.  \nThe paravertebral soft tissue muscles are unremarkable. \nIMPRESSION:  1.  Unremarkable exam.   \n \n Dr. Witherington’s assessment on November 16, 2022 included “1.  \nAcute bilateral thoracic back pain.”  Dr. Witherington noted on November \n\nPICHARDO - H208121  4\n  \n \n \n16, 2022, “Her plain films of the lumbar spine, thoracic spine and right knee \nwere unremarkable per radiology....Her exam is benign today and her \ncomplaints are fairly subjective.  She has not been compliant with treatment \nrecommendations.  I releasing (sic) her back to full duty.” \n The record indicates that the claimant was provided a series of \nphysical therapy visits at MANA Physical Therapy beginning November 17, \n2022.  It was noted at that time, “Patient is a 35yo female with a 10-day \nhistory of low back, upper back and right knee pain.  She fell at work and \nhas been having pain since then.”   \n A physical therapist noted on January 26, 2023, “She continues to \nhave significant pain (7/10) in the lower back and right knee.  Patient also \nreports development of LUE radiculopathy.”   \n The claimant treated at Washington Regional Urgent Care on \nFebruary 9, 2023:  “Fell November 2022 at work landing on right knee then \nfalling backwards landing on back.  Has had back pain thoracic region since \nas well as knee hurting.”   \n The claimant reported at Rise Physical Therapy on February 23, \n2023, “I was serving food for the kids and when I realized someone left the \npizza in the oven, I turned around to get the pizza out when I slipped and \nfall (sic) to the floor hitting my right knee.”     \n\nPICHARDO - H208121  5\n  \n \n \n A physical therapist noted on March 2, 2023, “Patient was seen in \nour office for 15 visits for low back and right knee pain after a fall at work.  \nShe did not report any significant improvements in pain but wanted to \ncontinue therapy.  It was suggested that she return to PCP and get re-\nassessed before continuing therapy due to lack of progress.  We are \ndischarging her at this time, thank you for the referral.”  \n It was noted at Rise Physical Therapy on March 27, 2023, “Zuleyka \nreports that she went back to work today.  States that she’s very tired and \nback is hurting more today.”    \n Dr. Loren Guzman reported on May 4, 2023, “Patient is a 36 yo with \nPMH of asthma who was referred from Alison Knox APRN for evaluation \nand management of low back pain that started after a fall in November \n2022 at work where she fell forward, landing on her knee and fell back on \nher back grabbing two things at her side to stop her fall.  This pain has been \npersistent despite NSAIDs, muscle relaxants and PT....Skin color, \ntemperature are normal in all 4 extremities.”   \n An MR of the claimant’s thoracic spine was taken on May 17, 2023: \n  History:  Back pain after fall.... \nFindings:  The alignment of the thoracic spine is normal.  \nVertebral body heights are maintained.  The marrow signal \nnormal.  The thoracic cord signal is normal.  Mild T7-T8 and \nT8-T9 disc bulges.  No significant central canal or \nneuroforaminal stenosis.  The visualized portions of the chest \nand upper abdomen are unremarkable. \nIMPRESSION:  No acute abnormality in the thoracic spine.   \n\nPICHARDO - H208121  6\n  \n \n \n \n An MRI of the claimant’s cervical spine was taken on July 28, 2023 \nwith the impression, “Negative exam.”   \n The claimant participated in a Functional Capacity Evaluation on \nOctober 31, 2023:  “Ms. Pichardo is referred with complaints of on-going \npain in her neck, both arms and her right knee which she attributed to \ninjuries she sustained in a work related accident....The results of this \nevaluation indicate that an unreliable effort was put forth, with 18 of 46 \nconsistency measures within expected limits....Ms. Pichardo completed \nfunctional testing on this date with unreliable results.  Overall, Ms. \nPichardo demonstrated the ability to perform work in at least the LIGHT \nclassification of work[.]”   \n Dr. Guzman noted on December 27, 2023 and January 30, 2024, \n“Skin color, temperature are normal in all 4 extremities.”   \n An MRI of the claimant’s left shoulder was taken on February 21, \n2024 with the impression, “No left rotator cuff or labral tear.”   \n An APRN reported on February 29, 2024: \nShe is tearful and would like a permanent fix to her problem.  \nShe has crepitus around the shoulder girdle with movement of \nher left shoulder.  No shoulder joint pain.  She had a normal \nMRI and has already tried ESI without improvement in this \npain. \nWe sent for updated cervical and left shoulder MRI – these do \nnot show any abnormalities to explain her pain.  We are not \nsure why she continued to have trapezius pain.  Shoulder \n\nPICHARDO - H208121  7\n  \n \n \ninjury could have occurred from the mechanism of injury \n(catching herself as she fell). \nWill again send to Sports Medicine for further evaluation.   \n \n Dr. Robert Benafield, Jr. examined the claimant on March 28, 2024: \nPatient is a 37-year-old right-hand-dominant female who \nworks with School district in the kitchen.  She was at work on \n11/4/2022 when she fell injuring her left shoulder and neck.  \nShe has treatment for now for over a year and evidently \nnobody has really looked at her left shoulder.  She had an \nMRI of her left shoulder about a month ago that was normal \nother than a type II acromion.  She was referred here for \nshoulder evaluation.  She has had no physical therapy for the \nshoulder no injections into the shoulder.  She reports pain with \nabduction and internal rotation and pain at night.  She has \nbeen on full duty work because she failed an FCE.... \nI discussed with the patient and her companion and the nurse \ncase manager.  I think she may have impingement of the \nshoulder.  We discussed etiology natural  history and \ntreatment.  She was offered a corticosteroid injection in the \nsubacromial space agreed and tolerated it well.  She will go to \nphysical therapy for a month.  She can return to work with no \noverhead lifting and no lifting greater than 10 pounds.  I will \nsee her back in a month for recheck.   \n \n Dr. Benafield assessed “1.  Impingement syndrome of left shoulder \nregion.”   \n Dr. Benafield ordered an NM BONE THREE PHASE STUDY, which \nwas performed on May 8, 2024: \n  HISTORY:  Impingement syndrome of left shoulder.... \nFINDINGS:  Flow, blood pool and delayed images \ndemonstrate no abnormal areas of increased radiotracer \nactivity in the right or left shoulders.  No evidence of \nosteomyelitis.   \nIMPRESSION:  1.  NORMAL TRIPLE PHASE BONE SCAN \nOF THE LEFT SHOULDER.   \n \n\nPICHARDO - H208121  8\n  \n \n \n The claimant followed up with Dr. Benafield on May 21, 2024: \nPatient seen in follow-up after the triple phase bone scan.  \nThis was normal showing no areas of inflammation.  She is \n(sic) now had no response or improvement with an injection \nwhich is suggest (sic) that the problem is not coming from her \nshoulder and negative bone scan which again suggest (sic) \nthat there is not a problem in her shoulder.  She failed an FCE \nwith unreliable results.... \nI have discussed with the patient and her companion \nregarding her visit results.  We discussed how there is (sic) \nbeen no objective findings that really show any significant \npathology in her shoulder.  I do not know what to make of her \npain but I cannot explain it.  It is possible this is related to \npsychological issues.  She may need to see a pain specialist.  \nBased on the negative bone scan and the failed FCE I am \ngoing to release her to MMI with 0 permanent impairment.  \nShe is released from my care.   \n \n Dr. Christopher P. Dougherty reported on July 15, 2024: \nThe patient presents to the office today regarding left shoulder \npain with numbness and tingling down her arm.  This began \nafter a work injury 11/4/2024.  She has tried conservative care \nof physical therapy, rest with activity modification, cortisone \ninjections and medical with little to no relief of the pain.  She \nhas had several studies completed of the cervical spine, \nthoracic spine and left shoulder including MRI’s and a bone \nscan.  She has a very positive adson’s.  All the testing was \nreviewed today have been reported as normal test with no \nabnormalities noted.  Her exam is consistent with thoracic \noutlet syndrome.  We will need to send her for an MR \nvenogram of the neck to check for this.  We will check bilateral \nsides for comparison.  We will work on approval for this and \nwill see her back to discuss the results once the test is \ncompleted.  For work her restrictions are only right arm use.  \nNo left arm use at this time.   \n \n Dr. Benafield was provided a “Major Contributing Cause Physician \nLetter” on July 19, 2024.  Dr. Benafield reported that the claimant’s \n\nPICHARDO - H208121  9\n  \n \n \ndiagnosis was “Shoulder impinegment (sic).”  Dr. Benafield stated, “If she \nhas TOS it is not related to her injury.”   \nThe claimant followed up with Dr. Dougherty on September 9, 2024: \nShe returns to the office today to discuss her MR findings.  \nShe had an MR angio chest W/WO contrast at Northwest \nMedical in Bentonville on 8/16/24.  Her MRI was \nindependently reviewed and agreed with outside interpretation \nand findings of thoracic outlet syndrome of the left side.  Her \nexam remains consistent with these findings.  She will need to \nbe referred to Washington Regional to Dr. James Counce for \nfurther treatment.  Her current work restriction will remain no \nlifting with the left upper extremity.  Her TOS is post traumatic \nfrom having to catch herself at work during her fall.  At that \ntime scar tissue in the form of fibrotic bands can form after \nhyperextension injuries, and this is well documented in the \nliterature.  Based on her mechanism of injury where she \nexperienced hyperextension of the arm while falling, to catch \nherself, this is consistent with the induction of the scar tissue \nformation resulting in her thoracic outlet syndrome. \n \n Dr. Dougherty diagnosed “1.  Left thoracic outlet syndrome.”   \n Dr. Theodore Hronas corresponded with the respondents’ attorney \non September 20, 2024: \n At your request, the following films and reports were reviewed: \n Clinical records provided. \n MRA of the chest, 08/16/2024. \nThe clinical history is of a work-related accidental injury that \noccurred on 11/04/2022 and described as, “I got hurt at work, \nI slipped hurt my back, all the back, and the knee and right \nknee and leg.”  An MRA of the chest is presented for review.  \nThe study is of good quality and sufficient for diagnostic \npurposes.  The indication for this exam was concern for \nthoracic outlet syndrome.  I am a board-certified radiologist \nwith additional training in body and musculoskeletal MRI, and \ntherefore my focus will be on the imaging study provided.   \n\nPICHARDO - H208121  10\n  \n \n \nThe initial pre contrast images of the upper chest demonstrate \nnormal mediastinal and upper thoracic anatomy with no \nevidence of mass or lymphadenopathy.  The brachial plexus \nis normal in appearance bilaterally.  Pre and post contrast \nimages of the chest demonstrate normal appearance of the \ngreat vessels.  The common carotid, vertebral, and subclavian \narteries are normal in size and caliber with no evidence of \nstenosis or abnormal extrinsic mass effect.  The internal \njugular and subclavian veins are normal.  Specific attention to \nthe subclavian veins demonstrates no evidence of stenosis or \nextrinsic mass effect.  No abnormal venous collateral vessels \nare present.   \nIn summary, the MRA of the chest is normal with no evidence \nof either arterial or venous stenosis, occlusion, or extrinsic \nmass effect.  Specifically, there are no objective imaging \nfinding (sic) that would suggest presence of thoracic outlet \nsyndrome.   \nMy findings herein are stated within a reasonable degree of \nmedical certainty.   \n \n Dr. James S. Counce reported on or about September 26, 2024: \nThis is a 37-year-old female who fell at work 2 years ago and \nhad to catch herself on her left arm ever since then she has \nhad pain ever since.  She has weakness numbness tingling of \nthe left arm and discoloration when she raises her left arm.  \nShe has underwent physical therapy and extensive imaging \nworkup.  MRI chest shows mild-to-moderate narrowing of the \nleft subclavian vein underlying the clavicle in the arms in the \nup position.  She was referred for thoracic outlet \nsyndrome[.]... \nShe has thoracic outlet syndrome on the left.  Her left arm is \nswollen and discolored with pain, numbness and loss of \nstrength.  Schedule left robotic assisted thoracic surgery with \n1\nst\n rib resection.   \n \n Dr. Counce performed a procedure on October 31, 2024:  “Left \nrobotic-assisted thoracic surgery with first rib resection and venolysis.”  The \n\nPICHARDO - H208121  11\n  \n \n \npre- and post-operative diagnosis was “Left-sided thoracic outlet \nsyndrome.”   \n Dr. Counce reported on March 11, 2025: \nThis is a 37-year-old Hispanic female, who fell at work 2 years \nago and had to catch herself on her left arm.  Ever since then, \nshe has complained of pain weakness, numbness and tingling \nof her left arm as well as discoloration when she raises it over \nher head.  She went to physical therapy and has had \nextensive imaging workup.  MRI of her chest showed mild to \nmoderate narrowing of the left subclavian vein, underlying the \nclavicle and the arms in the up position.  She was referred to \nour clinic for evaluation.  It was felt that she does have a true \nthoracic outlet syndrome and she is scheduled for a left \nrobotic assisted thoracic surgery with 1\nst\n rib resection.  She \nconsented to the procedure and was taken to the operating \nroom on 10/31/2024.  She was last seen on November 12, \n2024 during that visit, she looked good.  She was breathing \nwithout difficulty.  She had full range of motion.  She was a \nlittle reluctant to left (sic) arm above her head.  Her chest x-\nray was unremarkable.  Her surgical wounds were healing \nnicely.  Plan for outpatient physical therapy and occupational \ntherapy.  Plan was to see back in 4 months with a repeat \nchest x-ray at that time.   \nShe only got 10 sessions of PT before her insurance stopped \npaying.  She continues to have a lot of pain, numbness, \ntingling in her arm and hand.  She has temperature changes \nin her arm when trying to use it.  Her hand is too weak to hold \na glass of water....She feels unable to return to work, she is \ntoo weak and in too much pain.... \nShe has no more popping or grinding.  She still has pain in \nher left shoulder and arm....Plan to see her back 8 months \nwith a chest x-ray.  I am afraid she is going to have chronic \npain that we can not do much about other than refer her for \nchronic pain management.   \n \n The respondents’ attorney examined Dr. Counce at a deposition \ntaken April 1, 2025: \n\nPICHARDO - H208121  12\n  \n \n \n  Q.  Tell us about thoracic outlet syndrome.... \nA.  Thoracic outlet syndrome is a compression syndrome \nassociated with either the thoracic inlet or thoracic outlet, \nwhich is this small space where structures are traveling from \nthe neck to the chest or from the chest to the neck, are \ncompressed by first rib muscles and other things, and it can \ncause a variety of problems;  pain, swelling.  It can cause \narterial aneurysms; it can cause venous occlusion; it can \ncause neuralgia from these nerve trunks that are coming from \nthe neck down to the arm.  It’s a syndrome; it’s not a disease \nand so it’s hard to assign a single blood work or single test.  \nIt’s more a constellation of symptoms and findings and lack of \nfindings, also, that go with thoracic outlet syndrome.   \nQ.  Am I correct in understanding that thoracic outlet \nsyndrome can either be due to trauma or can be due to \ncongenital or anatomical variants? \nA.  That’s correct.   \nQ.  When you initially saw this patient, what history did you \nget from her? \nA.  What I have recorded is she was 37 years old at the time \nthat I saw her and she fell at work two years ago and had to \ncatch herself on her left arm and since then she has had pain.  \nShe has weakness, numbness, tingling in the left arm, and \ndiscoloration when she raises her left arm.  She has – she \nhad undergone physical therapy and extensive imaging \nworkup.  An MRI, the chest showed mild or moderate \nnarrowing of the left subclavian vein with some venous \ncollaterals underlying the clavicle in the arms-up position, and \nshe was referred to us because – and I have forgotten who it \nwas that referred her to us because they thought she had \nthoracic outlet syndrome.... \nQ.  The claim is that this thoracic outlet syndrome arose as a \nresult of the fall that occurred.  Do you have an opinion as to \nthat, other than relying on the history she gave you?  In other \nwords, was there anything about her physical findings, either \non examination or during the operative procedure, which \nsuggested that it had to be due to trauma as opposed to \nsomething else? \nA.  No.   \nQ.  So any opinion regarding work-relatedness would be \ndependent on the history that she gave you? \nA.  That’s correct. \n\nPICHARDO - H208121  13\n  \n \n \n \n A pre-hearing order was filed on April 15, 2025.  The claimant \ncontended, “Claimant contends she is entitled to treatment as \nrecommended by Dr. Dougherty for her injuries sustained on 11/4/2022, \nincluding treatment for thoracic outlet syndrome.”   \n The parties stipulated that the respondents “have controverted this \nclaim in its entirety.”  The respondents contended, “All appropriate benefits \nhave been paid.”   \n The parties agreed to litigate the following issues: \n1.  Whether Claimant sustained a compensable injury to her \nthoracic outlet resulting in thoracic outlet syndrome. \n2.  Whether Claimant is entitled to medical treatment as \nrecommended by Dr. Christopher Dougherty, including \ntreatment for thoracic outlet syndrome. \n3.  Whether Claimant is entitled to temporary total disability \nbenefits from October 31, 2024 to a date yet to be \ndetermined. \n4.  Whether Claimant’s attorney is entitled to an attorney’s fee.   \n5.  Claimant reserves all other issues.   \n \n After a hearing, an administrative law judge filed an opinion on \nSeptember 8, 2025.  The administrative law judge found, among other \nthings, that the claimant failed to prove she sustained a compensable injury \n\"in the form of thoracic outlet syndrome.\"  The administrative law judge \ntherefore denied and dismissed the claim “in its entirety.”  The claimant \nappeals to the Full Commission.   \nII.  ADJUDICATION \n\nPICHARDO - H208121  14\n  \n \n \n Ark. Code Ann. §11-9-102(4)(Repl. 2012) provides, in pertinent part: \n  (A)  “Compensable injury” means: \n(i)  An accidental injury causing internal or external physical \nharm to the body ... arising out of and in the course of \nemployment and which requires medical services or results in \ndisability or death.  An injury is “accidental” only if it is caused \nby a specific incident and is identifiable by time and place of \noccurrence[.]   \n \n A compensable injury must also be established by medical evidence \nsupported by objective findings.  Ark. Code Ann. §11-9-102(4)(D)(Repl. \n2012).  “Objective findings” are those findings which cannot come under the \nvoluntary control of the patient.  Ark. Code Ann. §11-9-102(16)(A)(i)(Repl. \n2012).   \n The employee has the burden of proving by a preponderance of the \nevidence that she sustained a compensable injury.  Ark. Code Ann. §11-9-\n102(4)(E)(i)(Repl. 2012).  Preponderance of the evidence means the \nevidence having greater weight or convincing force.  Metropolitan Nat’l \nBank v. La Sher Oil Co., 81 Ark. App. 269, 101 S.W.3d 252 (2003). \n An administrative law judge found in the present matter, “2.  The \nclaimant has failed to prove by a preponderance of the evidence that she \nsustained a compensable injury in the form of thoracic outlet syndrome.”  \nThe Full Commission affirms this finding.  The parties stipulated that the \nemployment relationship existed on November 4, 2022.  The claimant \ntestified that she slipped and fell on her knee.  The claimant testified that \n\nPICHARDO - H208121  15\n  \n \n \nshe “was trying to hold on to something with my left hand” when she fell.  \nThe record indicates that the respondents initially accepted the claim and \nprovided benefits primarily related to symptoms which included back pain. \n The credibility of witnesses and the weight to be given their \ntestimony are matters exclusively within the province of the Commission.  \nJohnson v. Democrat Printing & Lithograph, 57 Ark. App. 274, 944 S.W.2d \n138 (1997).  The Commission is not required to believe the testimony of the \nclaimant or any other witness, but may accept and translate into findings of \nfact only those portions of the testimony it deems worthy of belief.  Jackson \nv. Circle T. Express, 49 Ark. App. 94, 896 S.W.2d 602 (1995).   \n The claimant contends that she “sustained a compensable injury to \nher thoracic outlet resulting in thoracic outlet syndrome.”  The Full \nCommission finds that the claimant was not a credible witness, and that the \nclaimant did not prove by a preponderance of the evidence that she \nsustained a compensable injury to her thoracic outlet.  The evidence of \nrecord does not corroborate the claimant’s assertion that she sustained an \ninjury to her thoracic outlet as the result of “grabbing” with her left hand.  \nWe find credible Danielle Patton’s testimony that the claimant asserted \ninjuries only to her knee and lower back.  Nor did the medical evidence \ncorroborate the claimant’s testimony.  The claimant informed the medical \nproviders at MANA Urgent Care on November 7, 2022 that she had injured \n\nPICHARDO - H208121  16\n  \n \n \nher back and right knee.  An x-ray of the claimant’s back on November 8, \n2022 was unremarkable.  Dr. Witherington assessed “1.  Acute bilateral \nthoracic back pain” on November 16, 2022.  A series of physical therapy \nnotes beginning November 17, 2022 indicated that the claimant complained \nof “low back, upper back and right knee pain.”  There was no report of pain \nrelated to the claimant’s thoracic outlet.  The claimant continued to inform \nvarious medical providers that she had injured her back and knee.  The \nrecord indicates that the claimant returned to work for the respondents on \nor about March 27, 2023.     \n On May 4, 2023, the claimant asserted for the first time that she \n“grabbed two things” to stop her fall on November 4, 2022.  Dr. Guzman \nreported on May 4, 2023, “Skin color, temperature are normal in all 4 \nextremities.”  An MR on May 17, 2023 showed “No acute abnormality in the \nthoracic spine.”  Dr. Guzman continued to note on December 27, 2023 and \nJanuary 30, 2024, “Skin color, temperature are normal in all 4 extremities.”   \n An APRN reported on February 29, 2024 that the claimant had \nsustained a shoulder injury which “could have occurred from the \nmechanism of injury (catching herself as she fell).”  The evidence before the \nCommission does not demonstrate that the claimant “caught herself” with \neither upper extremity in order to prevent the slip and fall which occurred on \nNovember 4, 2022.  Dr. Benafield’s assessment on March 28, 2024 was “1.  \n\nPICHARDO - H208121  17\n  \n \n \nImpingement syndrome of left shoulder region.”  Nevertheless, Dr. \nBenafield released the claimant with 0% permanent impairment on May 21, \n2024.   \n Dr. Dougherty opined on July 15, 2024 that the claimant’s \nexamination was “consistent with thoracic outlet syndrome.”  On October \n31, 2024, Dr. Counce performed a “Left robotic-assisted thoracic surgery \nwith first rib resection and venolysis.”  Dr. Counce diagnosed “Left-sided \nthoracic outlet syndrome.”  Dr. Counce had stated on September 26, 2024 \nthat the claimant “fell at work 2 years ago and had to catch herself on her \nleft arm ever since then she has had pain ever since.”  The evidence does \nnot corroborate Dr. Counce’s conclusion that the claimant “had to catch \nherself” and as a result injured her left arm on September 26, 2024.   \n The Commission has the authority to accept or reject a medical \nopinion and the authority to determine its medical soundness and probative \nforce.  Green Bay Packaging v. Bartlett, 67 Ark. App. 332, 999 S.W.2d 692 \n(1999).  It is within the Commission’s province to weigh all of 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, the \nFull Commission finds that the opinions of Dr. Witherington, Dr. Benafield, \nand Dr. Hronas are entitled to more evidentiary weight than the opinions of \nDr. Doughtery and Dr. Counce.  The Full Commission attaches significant \n\nPICHARDO - H208121  18\n  \n \n \nevidentiary weight to Dr. Benafield’s opinion on July 19, 2024, “If she has \n[Thoracic Outlet Syndrome] it is not related to her injury.” \n The Full Commission finds that the claimant did not prove she \nsustained an accidental injury causing physical harm to her thoracic outlet.  \nThe Full Commission finds that the claimant did not prove she sustained an \ninjury to her thoracic outlet which arose out of and in the course of \nemployment, required medical services, or resulted in disability.  The \nclaimant did not prove that she sustained an injury to her thoracic outlet \nwhich was caused by a specific incident or was identifiable by time and \nplace of occurrence.   \n The Full Commission therefore affirms the administrative law judge’s \nfinding that the claimant failed to prove by a preponderance of the evidence \nthat she sustained a compensable injury in the form of thoracic outlet \nsyndrome.  The claimant did not prove that treatment provided by Dr. \nCounce, including surgery, was reasonably necessary in accordance with \nArk. Code Ann. §11-9-508(a)(Repl. 2012).  The claimant did not prove she \nwas entitled to any period of temporary total disability benefits in \naccordance with Ark. State Hwy. Dept. v. Breshears, 272 Ark. 244, 613 \nS.W.3d 392 (1981), or Wheeler Constr. Co. v. Armstrong, 73 Ark. App. 146, \n41 S.W.3d 822 (2001).  This claim is respectfully denied and dismissed. \n \n\nPICHARDO - H208121  19\n  \n \n \n IT IS SO ORDERED. \n \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner \n \n \n \nCommissioner Willhite dissents. \n \nDISSENTING OPINION \n \nThe Administrative Law Judge (hereinafter referred to as “ALJ”) found \nthat the Claimant has failed to prove by a preponderance of the evidence that \nshe sustained a compensable injury in the form of thoracic outlet syndrome \nand  by  virtue  of  that  decision  all  remaining  benefits  were  denied.  After \nreviewing the entire record de novo, I disagree with the findings of the ALJ.  \nI would find that the Claimant has proved by a preponderance of the evidence \nthat she suffered a compensable injury to her thoracic spine in the form of \nthoracic  outlet  syndrome,  as  a  result  of  her  work  accident  of  November  4, \n2022.  I  would  further  find  that  Claimant  is  entitled  to  reasonable  and \nnecessary  medical  treatment  as  recommended  by  Dr.  Dougherty,  and \ntemporary total disability benefits from October 31, 2024, to a date yet to be \ndetermined. \n1. The Claimant proved that she sustained a compensable injury that \ncaused thoracic outlet syndrome. \n\nPICHARDO - H208121  20\n  \n \n \nTo  establish  a  compensable  injury  by  a  preponderance  of  the \nevidence  the  Claimant  must  prove:  (1)  an  injury  arising  out  of  and  in  the \ncourse of employment; (2) that the injury caused internal or external harm to \nthe body which required medical services or resulted in disability or death; \n(3) medical evidence supported by objective findings, as defined in Ark. Code \nAnn.  §11-9-102(16),  establishing  the  injury;  and  (4)  that  the  injury  was \ncaused  by  a  specific  and  identifiable  time  and  place  of  occurrence.  A \ncompensable injury must be established by medical evidence supported by \nobjective findings and medical opinions addressing compensability must be \nstated within a degree of medical certainty.  Smith-Blair, Inc. v. Jones, 77 Ark. \nApp. 273, 72 S.W.3d 560 (2002).  \nThe  employer  takes  the  employee  as  he  finds  him.  Conway \nConvalescent Center v. Murphree, 266 Ark. 985, 585 S.W.2d 462 (Ark. App. \n1979).  A pre-existing disease or infirmity does not disqualify a claim if the \nemployment  aggravated,  accelerated,  or  combined  with  the  disease  or \ninfirmity  to  produce  the  disability  for  which  compensation  is  sought.  See, \nNashville Livestock Commission v. Cox, 302 Ark. 69, 787 S.W.2d 664 (1990); \nConway Convalescent Center v. Murphree, 266 Ark. 985, 585 S.W.2d 462 \n(Ark. App. 1979); St. Vincent Medical Center v. Brown, 53 Ark. App. 30, 917 \nS.W.2d 550 (1996). An increase in symptoms of a pre-existing degenerative \n\nPICHARDO - H208121  21\n  \n \n \ncondition is sufficient to establish a compensable injury.  Parker v. Atlantic \nResearch Corp., 87 Ark. App. 145, 189 S.W.3d 449 (2004). \nOn  November  4,  2022,  the  Claimant  slipped  and  fell  onto  her  right \nknee and back as she was serving lunch for the Respondent in the course \nand scope of her employment.  Claimant testified that she attempted to break \nher fall by grabbing a serving table with her left hand.  Following the incident, \nClaimant was escorted by a coworker to the office to report the incident to a \nmanager named Danielle.  \n The Claimant first sought medical care on November 7, 2022, at the \nMANA Urgent care.  At this visit, Claimant reported an injury to her back, right \nknee  and  leg  as  the  result  of  the  work  accident  on  November  4,  2022. \nClaimant  underwent  x-rays  which  showed  no  remarkable  injuries.  The \nClaimant was diagnosed with lumbar back pain, acute bilateral  thoracic back \npain, and right knee pain.  Claimant was then prescribed pain medication and \nreferred for physical therapy.  \n The  Claimant  was  seen  by  MANA  Physical  Therapy  on  multiple \noccasions,  up  to  and including  June  21,  2023.  The  Claimant  consistently \nreported  upper  and  lower  back  pain,  as  well  as  right  knee  pain  at  these \nappointments.  On  January  26,  2023,  the  Claimant  additionally  reported \nradiculopathy in her left upper extremity to her physical therapist.  Claimant \nhas a significant medical history of lumbar pain and carpal tunnel symptoms \n\nPICHARDO - H208121  22\n  \n \n \nprior  to  her  work-related  incident  on  November  4,  2022,  however,  the  left \nupper  extremity  symptoms  are  new  findings.  Various  medical  providers \nevaluated the Claimant’s medical condition and offered possible diagnoses \nof  shoulder  impingement  syndrome  as  well  as  complex  regional  pain \nsyndrome.  \nOn  May  21,  2024,  Dr.  Robert  Benafield  placed  the  Claimant  at \nmaximum medical improvement and gave her a 0% permanent impairment \nrating, stating that there were not objective findings to show any significant \npathology  in  her  left  shoulder.    The  Claimant  requested  and  received  a \nChange of Physician order to be seen by Dr. Chris Dougherty.  Claimant was \nfirst seen by Dr. Dougherty on July 15, 2024.  Dr. Dougherty noted that the \nClaimant was suffering from left shoulder pain, numbness in her left arm and \nhad a positive Adson’s test.  Following this examination, Dr. Dougherty stated \nthat the Claimant’s symptoms were consistent with thoracic outlet syndrome. \nDr.  Dougherty  ordered  an  MR  venogram  which  showed  the  Claimant  as \nhaving thoracic outlet syndrome.  Dr. Dougherty then referred the Claimant \nto Dr. James Counce for further evaluation and treatment.  \nClaimant was seen by Dr. James Counce on September 26, 2024.  Dr. \nCounce  noted  Claimant  as  having  swelling,  pain,  discoloration,  numbness \nand loss of strength in her left arm.  The Claimant was again diagnosed with \n\nPICHARDO - H208121  23\n  \n \n \nthoracic outlet syndrome.  Dr. Counce recommended surgery for her thoracic \noutlet syndrome.  Claimant underwent surgery on October 31, 2024.  \n As noted by the ALJ, thoracic outlet syndrome is an unusual malady \nin workers’ compensation.  However, the medical records of Dr. Dougherty \nand Dr. Counce prove that the Claimant suffered from an objective condition \nand refer to various physical findings such as a  positive Adson’s test, as well \nas discoloration and swelling of the Claimant’s left upper  extremity.  Dr. \nDougherty also confirmed these objective findings through the results of the \nClaimant’s venogram.  \nA letter by Dr. Theodore Hronas was presented at the hearing to rebut \nthe findings made by Dr. Dougherty and Dr. Counce.  However, I give this \nevidence  less  evidentiary  weight  than  the  findings  of  Dr.  Dougherty.  This \ndecision is based upon the discretion and duty of the Commission to make \ndeterminations of credibility, weigh the evidence, and to resolve conflicts of \nmedical testimony and evidence.  Martin Charcoal, Inc. v. Britt, 284 S.W.3d \n91 (Ark. App. 2008).  Dr. Hronas states that there is “no objective imaging \nfinding that would suggest [the] presence of thoracic outlet syndrome.”  This \nopinion is solely based upon a review of the July 16, 2024, film and report.  \nIn  contrast,  Dr.  Dougherty  examined  the  Claimant  in  person,  reviewed  her \nmedical history as well as prior diagnostic testing and performed a physical \nexamination.  Specifically, Dr. Dougherty found that the Claimant had a “very \n\nPICHARDO - H208121  24\n  \n \n \npositive  adsons  [test.]”  Despite  the  letter  of  Dr.  Hronas,  I  find  that  the \nClaimant  suffered an objective  compensable  injury  to her  thoracic  spine  in \nthe form  of  thoracic outlet  syndrome  as  a  result of her  November  4, 2022, \nwork-accident.  \n Arkansas   law   recognizes   that   an   aggravation   of   a   preexisting \ncondition  by  a  compensable  injury  is  itself  compensable.  Mineral  Springs \nSchool District v. Macon,704 S.W.3d 374 (Ark. App. 2025).  Further, the work \naccident is not required to be the original cause of the underlying abnormality. \nWright v. St. Vincent Doctors Hospital Indemnity Ins. Co. of N. Am., 2012 Ark. \nApp. 153 and Cooper Tire & Rubber Co. v. Leach, 2012 Ark. App. 452.  Also, \ndelayed  symptom  onset  does  not  preclude  a  finding  of  compensability. \nUniversity of Arkansas for Medical Sciences v. Barton, 2022 Ark. App. 181. \nIn the case at hand, the Claimant suffered from an objective condition that \nresulted  in  discoloration,  swelling,  pain  and  numbness  in  her  left  upper \nextremity.  These symptoms began somewhat progressively after her work \naccident of November 4, 2022.  \nAlthough the Claimant had medical problems that predated the work \naccident,  the  evidence  in  the  record  supports  the  conclusion  that  the \nClaimant’s work-related  accident  on  November  4,  2022,  either  caused  her \nthoracic  outlet  syndrome  or  substantially  and  materially  contributed  to  the \ndevelopment of the condition.  Therefore, I would reverse the decision of the \n\nPICHARDO - H208121  25\n  \n \n \nALJ  and   find   that   the   Claimant  has   met   her   burden   of   proof  by   a \npreponderance of the evidence that she sustained a compensable injury in \nthe form of thoracic outlet syndrome as the result of her November 4, 2022, \nwork accident.  \n2.  The  Claimant  is  Entitled  to  Reasonable  and  Necessary  Medical \nBenefits for her Compensable Injury. \nAn  employer  shall  promptly  provide  for  an  injured  employee  such \nmedical  treatment as may  be  reasonably necessary  in  connection with  the \ninjury received by the employee.  Ark. Code Ann. § 11-9-508(a).  Reasonable \nand necessary medical services may include those necessary to accurately \ndiagnose  the  nature  and  extent  of  the  compensable  injury;  to  reduce  or \nalleviate symptoms resulting from the compensable injury; or to maintain the \nlevel of healing achieved; or to prevent further deterioration of the damage \nproduced by the compensable injury.  Jordan v. Tyson Foods, Inc., 51 Ark. \nApp. 100, 911 S.W.2d 593 (1995).  \nThe Claimant sustained a compensable injury in the form of thoracic \noutlet syndrome as a result of her work accident of November 4, 2022.  The \nClaimant obtained a change of physician order through this commission and \nwas  seen  by  Dr.  Christopher  Dougherty  on  July  15,  2024.  Dr.  Dougherty \ndiagnosed the Claimant with thoracic outlet syndrome and then referred the \nClaimant to Dr. James Counce.  Dr. Counce recommended surgery.  Based \n\nPICHARDO - H208121  26\n  \n \n \nupon  the  medical  records,  I  find  that  the  medical  treatment  the  Claimant \nreceived for her thoracic outlet syndrome from Dr. Dougherty and Dr. Counce \nwas  both  reasonable  and  necessary  as  the  result  of  her  work  accident  of \nNovember 4, 2022.  \n3. The  Claimant  is  Entitled  to  Temporary  Total  Disability  Benefits \nfrom October 31, 2024 to a Date to be Determined. \n  To prove entitlement to temporary total disability benefits a Claimant \nmust prove that she remains in her healing period and that she suffers a total \nincapacity to earn wages.  Arkansas State Highway & Transportation Dept. \nv. Breshears, 613 S.W. 2d 392 (Ark. 1981).  The Claimant received surgical \ntreatment for her work-related thoracic outlet syndrome on October 31, 2024. \nThe  medical  notes  through  March  11,  2025,  indicate  that  Dr.  Counce \ncontinued to keep the Claimant off work through that date.  Based upon the \nevidence in the record in this matter I find that the Claimant met her burden \nof proof to demonstrate that she remained in her healing period and that she \nsuffered a total incapacity to earn wages.  Therefore, I find that the Claimant \nis  entitled  to  temporary  total  disability  benefits  from  October  31,  2024  to  a \ndate to be determined. \n4.   The Claimant’s Attorney is Entitled to an Attorney’s Fee. \nAn attorney’s  fee is appropriate in cases where indemnity benefits are \nawarded.  Ark. Code Ann. §11-9-715(a)(1)(B).  As I find that the Claimant is \n\nPICHARDO - H208121  27\n  \n \n \nentitled to temporary total disability, therefore an attorney’s fee would be \nappropriate and should be awarded.  \nAfter  my de  novo review  of  the  entire  record,  I  would  reverse  the \ndecision of the ALJ, and find that the Claimant met her burden of proof that \nshe sustained a compensable injury in the form of thoracic outlet syndrome \nas the result of her November 4, 2022 work accident, that she is entitled to \nreasonable and necessary medical treatment of her injury including medical \ntreatment rendered by Dr. Dougherty and Dr. Counce, that she is entitled to \ntemporary  total  disability  benefits  from  October  31,  2024,  to  a  date  to  be \ndetermined, and that her attorney is entitled to an attorney’s fee. \n \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner","preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H208121 ZULEYKA PICHARDO, EMPLOYEE CLAIMANT PRAIRIE GROVE ELEMENTARY SCHOOL, EMPLOYER RESPONDENT ARKANSAS SCHOOL BOARDS ASSN., INSURANCE CARRIER/TPA RESPONDENT OPINION FILED APRIL 29, 2026","fetched_at":"2026-05-19T22:29:43.591Z","links":{"html":"/opinions/full_commission-H208121-2026-04-29","pdf":"https://www.labor.arkansas.gov/wp-content/uploads/Pichardo_Zuleyka_H208121_20260429.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/"}}