{"id":"full_commission-H300192-2024-06-20","awcc_number":"H300192","decision_date":"2024-06-20","opinion_type":"full_commission","claimant_name":"Ronnie Corter","employer_name":"Commercial Audio Systems, Inc","title":"CORTER VS. COMMERCIAL AUDIO SYSTEMS, INC. AWCC# H300192 JUNE 20, 2024","outcome":"unknown","outcome_keywords":[],"injury_keywords":["shoulder","fracture","rotator cuff"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/Corter_Ronnie_H300192_20240620.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Corter_Ronnie_H300192_20240620.pdf","text_length":16102,"full_text":"NOT DESIGNATED FOR PUBLICATION \n \n \nBEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \nCLAIM NO.  H300192 \n \nRONNIE CORTER, EMPLOYEE  CLAIMANT \n \nCOMMERCIAL AUDIO SYSTEMS, INC., EMPLOYER RESPONDENT \n \nSTONETRUST INSURANCE COMPANY,  \nINSURANCE CARRIER/TPA RESPONDENT \n \n \nOPINION FILED JUNE 20, 2024 \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, JASON M. RYBURN, \nAttorney at Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Affirmed and Adopted. \n \n OPINION AND ORDER \n Respondents appeal an opinion and order of the Administrative Law \nJudge filed January 10, 2024.  In said order, the Administrative Law Judge \nmade the following findings of fact and conclusions of law: \n1. The  stipulations  agreed  to  by  the  parties  at  a  pre-hearing \nconference conducted on September 6, 2023 and contained in a \npre-hearing order filed that same date are hereby accepted as fact.  \n \n2. Claimant has met his burden of proving by a preponderance of the \nevidence that he suffered a compensable injury to his left shoulder \non September 26, 2022. \n \n\nCORTER - H300192  2\n  \n \n \n3. Respondent is liable for payment of all reasonable and necessary \nmedical  treatment  provided  in  connection  with  claimant’s \ncompensable injury. \n \n4. Claimant has proven by a preponderance of the evidence that he \nis  entitled  to  temporary  total  disability  benefits  beginning \nSeptember  29,  2022  and  continuing  through  a  date  yet  to  be \ndetermined. \n \n5. Respondent has controverted claimant’s entitlement to all unpaid \nindemnity benefits. \n \n We have carefully conducted a de novo review of the entire record \nherein and it is our opinion that the Administrative Law Judge's decision is \nsupported by a preponderance of the credible evidence, correctly applies \nthe law, and should be affirmed.  Specifically, we find from a preponderance \nof the evidence that the findings made by the Administrative Law Judge are \ncorrect and they are, therefore, adopted by the Full Commission.  \n We therefore affirm the decision of the Administrative Law Judge, \nincluding all findings of fact and conclusions of law therein, and adopt the \nopinion as the decision of the Full Commission on appeal. \n All accrued benefits shall be paid in a lump sum without discount and \nwith interest thereon at the lawful rate from the date of the Administrative \nLaw Judge's decision in accordance with Ark. Code Ann. § 11-9-809 (Repl. \n2012). \n\nCORTER - H300192  3\n  \n \n \n For prevailing on this appeal before the Full Commission, claimant’s \nattorney is entitled to fees for legal services in accordance with Ark. Code \nAnn. § 11-9-715(a)(Repl. 2012).  For prevailing on appeal to the Full \nCommission, the claimant’s attorney is entitled to an additional fee of five \nhundred dollars ($500), pursuant to Ark. Code Ann. § 11-9-715(b)(Repl. \n2012). \n  IT IS SO ORDERED. \n                                       _____________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n                                       _____________________ \n    M. SCOTT WILLHITE, Commissioner \n \n \nCommissioner Mayton dissents \n \nDISSENTING OPINION \n \nI respectfully dissent from the majority opinion.  In my de novo review \nof the record, I find that the claimant has not proven by a preponderance of \nthe evidence that he suffered a compensable injury to his left shoulder on \nSeptember 26, 2022.  \n The claimant in this matter has a long history of bilateral shoulder \nissues and had surgery on his left shoulder in May 2022, approximately four \n(4) months prior to the accident in question.  (Hrng. Tr., P. 6).  The claimant \nreturned to work for the respondent employer in early September 2022 with \nlifting restrictions.  (Hrng. Tr., P. 7). \n\nCORTER - H300192  4\n  \n \n \n On September 26, 2022, the claimant walked to work.  When he \narrived prior to beginning work for the day, the claimant attempted to open \nthe building’s front door.  A coworker, Miguel, walked in the door in front of \nhim and pulled the door shut while the claimant held the handle.  (Hrng. Tr., \nPp. 8, 27, 31). \n The claimant would later seek medical treatment for his shoulder on \nSeptember 29, 2022, three days after the alleged injury.  (Hrng. Tr., P. 11). \nThe claimant’s treating physician, Dr. Wesley Cox, later performed a total \nleft shoulder arthroplasty.  (Resp. Ex. 1, P. 35) \n After a hearing on December 13, 2023, an administrative law judge \n(ALJ) found the claimant has proven by a preponderance of the evidence \nthat he sustained a compensable left shoulder injury.  However, there were \nno objective findings of an injury, and the claimant was not performing \nemployment services at the time of his injury. \n Arkansas Code Annotated section 11-9-102 (4)(A)(i) provides that a \ncompensable injury includes “[a]n accidental injury causing internal or \nexternal physical harm to the body. . . An injury is ‘accidental’ only if it is \ncaused by a specific incident and is identifiable by time and place of \noccurrence.”  \nGenerally, a specific incident injury is an accidental injury arising out \nof the course and scope of employment caused by a specific incident \n\nCORTER - H300192  5\n  \n \n \nidentifiable by time and place of an occurrence.  Ark. Code Ann. § 11-9-\n102(4)(A)(i).  This requires that a claimant establish by a preponderance of \nthe evidence:  (1) an injury arising out of and in the course of employment; \n(2) that the injury caused internal or external physical harm to the body \nwhich required medical services or resulted in disability or death; (3) \nmedical evidence supported by objective findings establishing an injury as \ndefined in Ark. Code Ann. §11-9-102(16) and; (4) that the injury was caused \nby a specific incident identifiable by time and place of occurrence.  Ark. \nCode Ann. § 11-9-102(4)(A)(i). \nThe injury in question falls under the “aggravation” classification \nsince the claimant’s left shoulder condition was clearly pre-existing.  An \naggravation of a pre-existing non-compensable condition is, itself, \ncompensable but must meet the definition of a compensable injury in order \nto establish compensability.  Oliver v. Guardsmark, Inc., 68 Ark. App. 24, 3 \nS.W.3d 336 (1999); Farmland Insurance Company v. DuBois, 54 Ark. App. \n141, 923 S.W.2d 5 883 (1996); Ford v. Chemipulp Process, Inc., 63 Ark. \nApp. 260, 977 S.W.2d 5 (1998).  \nA compensable injury must be established by medical evidence \nsupported by \"objective findings.\"  Ark. Code Ann. § 11-9-102(4)(D). \nObjective findings cannot come under the voluntary control of the patient. \nArk. Code Ann. § 11-9-102(16).  \n\nCORTER - H300192  6\n  \n \n \nIt is within the Commission's province to weigh all the medical \nevidence, to determine what is most credible, and to determine its medical \nsoundness and probative force.  Sheridan Sch. Dist. v. Wise, 2021 Ark. \nApp. 459, 637 S.W.3d 280 (2021).  In weighing the evidence, the \nCommission may not arbitrarily disregard medical evidence or the testimony \nof any witness.  Id.  The Commission is not required to believe the \ntestimony of the claimant or any other witness but may accept and translate \ninto findings of fact only those portions of the testimony that it deems worthy \nof belief.  White v. Gregg Agricultural Ent., 72 Ark. App. 309, 37 S.W.3d 649 \n(2001). \nHere, there were no new objective findings of an injury to the \nclaimant’s left shoulder.  The claimant presented to the emergency room at \nWashington Regional Medical Center on September 27, 2022, complaining \nof groin pain.  (Resp. Ex. 1, Pp. 33-36).  He did not mention shoulder pain \nat this time and did not, in fact, seek treatment for his left shoulder until \nSeptember 29, 2022.  (Resp. Ex. 1, P. 37). \nOn May 23, 2022, only four (4) months prior to the accident in \nquestion, Dr. Wesley Cox performed a left open glenoid allograft (Latarjet) \nsurgery on the claimant and implanted screws in the claimant’s left \nshoulder.  (Cl. Ex. 1, Pp. 3-7).  Dr. Cox had contemplated an arthroplasty at \nthat time but believed the Latarjet was more appropriate for the claimant. \n\nCORTER - H300192  7\n  \n \n \n(Cl. Ex. 1, P. 3).  The risks of the Latarjet procedure included recurrent \ninstability and hardware failure.  (Cl. Ex. 1, P. 6).  \nIn August of 2022, an X-ray revealed, “breakdown of the coracoid \ntransfer fragment is seen with loose inferior screw.”  (Cl. Ex. 1, P. 14).  This \nscrew fragment and “erosive changes of the glenoid articular surface” were \nnoted after an X-ray at the Washington Regional emergency department on \nSeptember 29, 2022.  (Cl. Ex. 1, P. 18).  \nThe September 29 X-ray was “compared to the patient’s x -ray on his \nphone showing the fractured screw previous,” and there were no findings of \n“acute fracture or dislocation of the shoulder.”  Id.  The only objective \nfindings at that time were clearly pre-existing. \nThe claimant was examined by Dr. Cox on December 21, 2022, who \nopined that there “really has not been much change here.  He had this \nincident at work with his arm being pulled on the door and he has had \nsignificant pain since then his X-rays do not look a ton different that they did \nbefore, but his symptoms are certainly worse.”  (Cl. Ex. 1, Pp. 23-24).  \nOn April 5, 2023, Dr. Cox wrote that, “I do not have a perfect \nexplanation for the pain that he is having, but he has a multiple E operated \nshoulder that is [sic] been through several very significant surgeries, and \nafter any sort of traumatic event, there may be significant pain without new \nobvious structural injury.”  (Cl. Ex. 1, P. 26).  \n\nCORTER - H300192  8\n  \n \n \nAs of July 12, 2023, an MRI showed post-surgical changes from \nLatarjet, rotator cuff intact on the left shoulder with no tearing.  (Cl. Ex. 1, P. \n33).  Dr. Cox ultimately performed a full arthroplasty due to the claimant’s \nongoing complaints of pain, writing in his operative report that, “[f]ortunately, \nhe is not dealing with recurrent instability as much as he is dealing with \npain.”  (Cl. Ex. 1, P. 35). \nThe record is clear that there were no new objective findings of an \ninjury after September 27, 2022.  The only objective findings reflect the pre-\nexisting failure of the Latarjet procedure that began in or around August of \n2022.  \nThe claimant’s treating physician, Dr. Cox, repeatedly opines that \nthere was no acute injury associated with the alleged September 26, 2022 \nincident but rather the claimant was suffering from subjective pain.  Without \nany objective findings indicating that the claimant injured his shoulder on \nSeptember 26, 2022, his claim fails and the ALJ should be reversed on this \npoint. \nOur rules define a compensable injury as \"[a]n accidental injury . . . \narising out of and in the course of employment.\"  Ark. Code Ann. § 11-9-\n102(4)(A)(i).  A compensable injury does not include an \"[i]njury which was \ninflicted upon the employee at a time when employment services were not \nbeing performed.\"  Ark. Code Ann. § 11-9-102(4)(B)(iii).  The Act, however, \n\nCORTER - H300192  9\n  \n \n \nfails to define the phrase \"in the course of employment\" or the term \n\"employment services.\"  Wood v. Wendy's Old Fashioned Hamburgers, \n2010 Ark. App. 307, 374 S.W.3d 785 (2010).  \nOur Supreme Court has held that an employee is performing \n\"employment services\" when he or she \"is doing something that is generally \nrequired by his or her employer.\"  Texarkana Sch. Dist. v. Conner, 373 Ark. \n372, 284 S.W.3d 57 (2008).  We use the same test to determine whether an \nemployee was performing employment services as we do when determining \nwhether an employee was acting within the course of employment.  Id.  \nSpecifically, it has been held that the test is whether the injury \noccurred \"within the time and space boundaries of the employment, when \nthe employee [was] carrying out the employer's purpose or advancing the \nemployer's interest directly or indirectly.\"  Id.  The critical inquiry is whether \nthe interests of the employer were being directly or indirectly advanced by \nthe employee at the time of the injury.  Id.  The issue of whether an \nemployee was performing employment services within the course of \nemployment depends on the particular facts and circumstances of each \ncase.  Id. \nIn short, an employee is performing employment services when \nengaged in the primary activity that he or she was hired to perform, or in \nincidental activities that are inherently necessary for the performance of the \n\nCORTER - H300192  10\n  \n \n \nprimary activity, or when an employee is performing employment \nservices when he or she is engaging in an activity that carries out the \nemployer's purpose or advances the employer's interests.  Olsten Kimberly \nQuality Care v. Pettey, 328 Ark. 381, 944 S.W.2d 524 (1997); Hightower v. \nNewark Pub. Sch. Sys., 57 Ark. App. 159, 943 S.W.2d 608 (1997). \nAn employee is generally not said to be acting within the course of \nemployment when he is traveling to or from the workplace, and thus, the \n\"going and coming rule\" ordinarily precludes compensation for injuries \nsustained while an employee is going to or returning from his place of \nemployment.  Linton v. Arkansas Dep't of Corrections, 87 Ark. App. 263,190 \nS.W.3d 275 (2004).  \nHowever, there are exceptions to the \"going and coming rule\" where \nthe journey itself is part of the employment service, such as traveling men \non a business trip and employees who must travel from job site to job \nsite.  Id.  Whether an employer requires an employee to do something has \nbeen dispositive of whether that activity constituted employment \nservices.  Campbell v. Randal Tyler Ford Mercury, Inc., 70 Ark. App. 35, 13 \nS.W.3d 916 (2000). \nIn the present case, the claimant was injured after walking to work. \n(Hrng. Tr., P. 27).  Although the claimant and other employees may access \na phone app called EzClocker to clock in and out for the day, the claimant \n\nCORTER - H300192  11\n  \n \n \ntestified that he had not clocked into work prior to reaching the respondent \nemployer’s front door.  (Hrng. Tr., Pp. 30-31).  He had not even entered the \nbuilding for the day.  (Hrng. Tr., P. 31).  In fact, the injury occurred when a \ncoworker, Miguel, pulled the door shut as the claimant was attempting to \nopen it.  (Hrng. Tr., Pp. 8, 31).  \nPrior to entering the building, there was no expectation that the \nclaimant perform any work activities in the parking lot.  (Hrng. Tr., P. 32). \nThe claimant testified that he did not have any job duties until entering the \nbuilding, and often not until morning meeting with the supervisor.  Id. \nAlthough the claimant did some exterior work on the building from time to \ntime, this was not a regular part of his job duties and he would not know \nwhether he had any of this work to do until entering the building and \nreceiving an assignment.  (Hrng. Tr., P. 33).  \nThe claimant testified that he had no responsibilities regarding \nopening the building.  (Hrng. Tr., P. 34).  He had received no instructions \nthe previous day regarding what to do that morning.  Id. \n  The claimant was clearly not performing employment services at the \ntime of his injury.  Although he was on the respondent employer’s property, \nit is undisputed that he had not entered the building when the alleged injury \noccurred and would not have been performing employment services until he \nreceived instruction on the day’s tasks. The claimant had not clocked in at \n\nCORTER - H300192  12\n  \n \n \nthe time of his injury, nor had he started work.  There were no preliminary \ntasks that the claimant must complete prior to work.  He was not doing any \nwork and he was not expected to be working.  There is no exception under \nwhich we can find that the claimant was providing employment services at \nthe time of his injury and for this reason. \nAccordingly, for the reasons set forth above, I must dissent. \n \n \n \n                                       _____________________ \n    MICHAEL R. MAYTON, Commissioner","preview":"NOT DESIGNATED FOR PUBLICATION BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H300192 RONNIE CORTER, EMPLOYEE CLAIMANT COMMERCIAL AUDIO SYSTEMS, INC., EMPLOYER RESPONDENT STONETRUST INSURANCE COMPANY, INSURANCE CARRIER/TPA RESPONDENT OPINION FILED JUNE 20, 2024 Upon review before the FULL COMMISSION in ...","fetched_at":"2026-05-19T22:29:45.379Z","links":{"html":"/opinions/full_commission-H300192-2024-06-20","pdf":"https://labor.arkansas.gov/wp-content/uploads/Corter_Ronnie_H300192_20240620.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/"}}