{"id":"full_commission-H300652-2024-06-13","awcc_number":"H300652","decision_date":"2024-06-13","opinion_type":"full_commission","claimant_name":"Lorena Tinajero","employer_name":"Tyson Poultry, Inc","title":"TINAJERO VS. TYSON POULTRY, INC. AWCC# H300652 JUNE 13, 2024","outcome":"unknown","outcome_keywords":[],"injury_keywords":["shoulder","repetitive","wrist","carpal tunnel","back"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/Tinajero_Lorena_H300652_20240613.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Tinajero_Lorena_H300652_20240613.pdf","text_length":32454,"full_text":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n \nCLAIM NO.  H300652 \n \nLORENA TRUJILLO-TINAJERO, \nEMPLOYEE \n \nCLAIMANT \nTYSON POULTRY, INC.,  \nEMPLOYER \n \nRESPONDENT \nTYNET CORPORATION, \nINSURANCE CARRIER/TPA \nRESPONDENT \n  \n      \nOPINION FILED JUNE 13, 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 R. SCOTT ZUERKER, \nAttorney at Law, Fort Smith, Arkansas. \n \nDecision of Administrative Law Judge:  Affirmed. \n \n \n OPINION AND ORDER \nThe respondents appeal an administrative law judge’s opinion filed \nDecember 15, 2023.  The administrative law judge found that the claimant \nproved she sustained a compensable injury to her right shoulder.  After \nreviewing the entire record de novo, the Full Commission finds that the \nclaimant proved she sustained a compensable injury to her right shoulder.     \nI.  HISTORY \n The record indicates that Lorena Tinajero-Trujillo, now age 48, \nbecame employed with the respondent, Tyson Poultry, Inc., in January \n\nTINAJERO - H300652  2\n  \n \n \n2015.  The parties stipulated that the employment relationship existed “on \nor about November 30, 2021.”  The claimant testified on direct examination: \nQ.  And on November 30\nth\n of 2021, what kind of job were you \ndoing? \nA.  At that point I was already in a different department.  DSI, \nsorter it is called.... \n  Q.  And in the sorter job, what do you do? \nA.  When you get the chicken breast, it’s in the shape of a \nheart, you trim the edges and then you put it on a separate \nband....The machine cuts it.  We just grab the part from the \nmiddle and then it lets it go.... \nQ.  And in the days before November 30\nth\n of 2021, had the \nmachine been cutting properly? \nA.  No.  It had been three days since the machine had not \nbeen cutting properly and it was challenging to pull the \nchicken out.... \nQ.  So on November 30\nth\n of 2021, what happened? \nA.  On that day it had been really a tough day.  It was tougher \nthan usual.  And I was pulling on it when I felt something hot \non my shoulder all the way to the elbow.  I told my supervisor \nthat I could no longer pull on that and I was just going to let \nthe chicken go and I told my co-workers the same thing.  But \nwhen they saw that we weren’t doing it, the chicken was just \ngoing by, they fixed the machine.... \nQ.  After you felt that burning, did you report that? \nA.  I told the supervisor that my arm was burning a lot. \n \n According to the record, the claimant sought treatment with Dana \nThompson, LPN on December 8, 2021:  “TM with C/O pain in right elbow.  \nStates was sorting chicken and the right elbow started feeling hot and \nbecame painful.  Started approx. one week ago, but she thought it was just \noverworked that day and was tired.  Slight edema noted to lateral elbow.”     \n Dana Thompson treated the claimant conservatively for her elbow \ncomplaints. \n\nTINAJERO - H300652  3\n  \n \n \n On December 8, 2021, the claimant signed a TEAM MEMBER \nSTATEMENT OF INJURY/ILLNESS.  The STATEMENT indicated that the \nDate of Injury was November 30, 2021, 12:00 p.m.  The Details of \nInjury/Illness indicated, “While sorting chicken started to feel hot on the right \nelbow.”     \n The claimant signed a Form AR-N, EMPLOYEE’S NOTICE OF \nINJURY, on December 8, 2021.  The Form AR-N indicated that the Date of \nAccident was November 30, 2021 and that the employer was notified of \nsame on December 1, 2021.  The ACCIDENT INFORMATION section of \nthe Form AR-N indicated that the body part injured was “The right elbow.”  \nThe claimant appeared to write that she had begun feeling “pain and hot” in \nher right elbow while working.   \n The record indicates that the claimant began receiving physical \ntherapy on December 10, 2021.  The claimant’s occupation was listed as \n“Sorter Operator Class 3.”  The claimant complained of pain in her “Upper \nExtremity” and the following Description ensued:  “Discomfort and tension \nwith inflammation of lateral epicondyle; December 1\nst\n onset with regular \nwork duties.”  The History and Physical indicated, “Work Related:  Yes.” \n A physical therapist noted on December 20, 2021, “Stated that the \nelbow is doing much better although referral of pain from shoulder to the \nouter arm has gotten worse, due to work duties performed since Friday[.]”   \n\nTINAJERO - H300652  4\n  \n \n \n On December 28, 2021, the claimant signed a TEAM MEMBER \nSTATEMENT OF INJURY/ILLNESS.  The TEAM MEMBER STATEMENT \nindicated that the Date of Injury was November 30, 2021.  The Details of \nInjury indicated, “While sorting chicken started to feel hot on the right \nelbow.”      \n The claimant was examined at Arkansas Occupational Medicine \nServices on January 5, 2022.  Ceth Dawson, PA-C reported at that time: \nMs. Trujillo Tinajero was sortin (sic) chicken and felt like she \noverworked her elbow and shoulder.  Date of injury was on \n12/1/2021.... \nPatient states she gradually started having right elbow pain \nwhile working the factory line 11/30/2021 that has remained \nconstant since. \n \nHISTORY OF PRESENT ILLNESS \nLorena’s primary problem is pain located in the right elbow.  \nShe describes it as throbbing, burning.  She considers it to be \nmedium.  The problem began on 12/1/2021.  Lorena says that \nit seems to be variable – depending on the activity level.  She \nhas noticed that it is made worse by repetitive arm use, \nexertion. \n \nCOMMENTS ON HISTORY OF PRESENT ILLNESS \nAnn (sic) interpreter is present.  Lorena presents with right \nelbow pain that began approximately 1 month ago while \nworking and has gradually gotten worse.  She states that she \ndoes works (sic) on the line doing repetitive arm movements \nwhen she begins having pain in her right elbow that radiates \nup and has occasional tingling in her 4\nth\n and 5\nth\n fingers.  She \nalso reports occasional pain when she wakes up in the \nmorning.  She reports seeing the company nurse and treated \nwith stretching exercises and ibuprofen.  She has been \nrotating through different positions at work but has notice (sic) \nlittle to no improvement.... \nRight Shoulder:  The shoulder examination is normal. \n\nTINAJERO - H300652  5\n  \n \n \nRight Elbow:  Pain to palpation is present over the antecubital \nfossa.  Pain on motion is present over the elbow.... \n \n The diagnosis was “1.  Injury of ulnar nerve at forearm level, right \narm, initial encounter” and “2.  Pain in right elbow.”  Ceth Dawson assessed \n“Signs and symptoms consistent with cubital tunnel syndrome....The cause \nof this problem appears to be related to work activities.”  Mr. Dawson \nreturned the claimant to Regular Duty, follow-up in one week.   \n Ceth Dawson’s diagnosis on January 12, 2022 was “1.  Injury of \nulnar nerve at forearm level, right arm, subsequent encounter.  2.  Lateral \nepicondylitis, right elbow.  3.  Pain in right elbow.”  Mr. Dawson provided the \nclaimant with a “forearm strap,” and he returned her to regular work duty.     \n The claimant informed Dana Thompson on January 26, 2022, \n“States her pain has gotten worse and it is shooting into her shoulder.  6 \nsessions of PT ordered.  Educated on proper use of forearm strap.”   \n The claimant treated at Trinity Rehabilitation, Inc. beginning January \n28, 2022:  “Line worker for Tyson Berry Street plant.  Complains of severe \nRight elbow pain since early December, 2021....Referred for treatment of \nlateral epicondylitis.”  The assessment at that time included, “Therapy exam \nsuggests lateral epicondylitis.  I also suspect improper wear/overly \naggressive tightening/wearing of the counterforce brace resulting in radial \ntunnel syndrome and cubital tunnel syndrome type pain complaints.”     \n\nTINAJERO - H300652  6\n  \n \n \n Dr. Konstantin V. Berestnev completed a Form AR-3, Physician’s \nReport on February 16, 2022:  “Patient states that she gradually started \nhaving right elbow pain while working the factory line 11/30/2021 that has \nremained constant since.  Patient states that her right elbow is doing a little \nbetter, but she is still having a little bit of pain.  Patient has completed 5/6 \nsessions of physical therapy.”  Dr. Berestnev diagnosed “1.  Injury of ulnar \nnerve at forearm.  2.  Lateral epicondylitis, right elbow.  3.  Pain in right \nelbow.”  Dr. Berestnev returned the claimant to work with no restrictions on \nFebruary 16, 2022. \n The claimant was also discharged from Trinity Rehabilitation, Inc. on \nFebruary 16, 2022, at which time it was noted, “Will wear wrist splint until \nabout 2/24/22 before attempting to wean from same to limit chances of \nrecurrent elbow pain.”   \n The claimant returned to Dr. Berestnev on May 20, 2022: \nMs. Trujillo Tinajero was sortin (sic) chicken and felt like she \noverworked her elbow and shoulder.  Date of injury was on \n12/01/2021.... \nPatient states she gradually started having right elbow pain \nwhile working the factory line 11/30/2021 that has remained \nconstant since.... \nLorena’s primary problem is pain located in the right \nelbow....The problem began on 12/01/21....She feels it is \ngetting worse.   \n \n Dr. Berestnev diagnosed “1.  Injury of ulnar nerve at forearm level, \nright arm, subsequent encounter.  2.  Pain in right elbow.”  Dr. Berestnev \n\nTINAJERO - H300652  7\n  \n \n \nassessed, “An interpreter is present.  Lorena presents for recheck of right \nelbow burning in olecranon area....Lorena’s recommended work status is \nRegular Duty.”   \n Dr. Berestnev’s diagnosis on June 3, 2022 was “1.  Injury of ulnar \nnerve at forearm level, right arm, subsequent encounter.  2.  Pain in right \nelbow.”  The claimant informed a nurse practitioner on or about September \n27, 2022 that she was suffering from right arm numbness.  A Neurological \nEvaluation/Electrodiagnostic Report was done on December 13, 2022 with \nthe assessment, “Moderate right carpal tunnel syndrome.”   \n Candise Bostedt, RN reported on January 12, 2023: \nTM reports to OHS this am to report an injury.  Adriana Pena \nassisted TM in filling out paperwork.  Maria Camacho assisted \nin translating initial complaint of injury.  TM states that on \n11/30/21 she was working in DSI as a sorter and the new \nmachine was not making cuts correctly.  She states, “that day \n11/30/2021 the machine was worse because it was too much, \nand I started feel burn and hot on the right elbow and feel the \nsame through the wrist and up to the shoulder.”  TM continued \nby stating, “also felt like pull from inside my arm from the wrist \nto my elbow and same something pull from my shoulder to my \nright elbow.”  TM reports that the issue is from an injury that \noccurred on 11/30/2021.  TM received HMP, PT, and \ntreatment at Conservative Care for this issue.  TM was \ncleared with no further issues mid June.  TM has not reported \nany further issues/injuries/complaints since.   \n \n Candise Bostedt noted on February 8, 2023, “TM stated multiple \ntimes she did not have pain in her wrist.  TM states she has only had pain in \nher elbow and shoulder.”   \n\nTINAJERO - H300652  8\n  \n \n \nDr. Bryan Benafield, Jr. performed a “Right carpal tunnel release” on \nFebruary 17, 2023.  The pre- and post-operative diagnosis was “Right \ncarpal tunnel syndrome.”   \n Dr. Benafield’s assessment on March 1, 2023 was “1.  Carpal tunnel \nsyndrome of right wrist” and “2.  Impingement syndrome of right shoulder \nregion.”   \n Dr. Benafield reported on March 30, 2023: \nPatient seen in follow-up on the right arm.  She has recovered \nwell from her right carpal tunnel release but is still having \nsome shoulder pain despite doing the exercises I gave her \nlast time.  She has pain with abduction forward flexion internal \nrotation pain at night.  We discussed previously doing some x-\nrays and getting an injection done possibly.... \nOn exam her carpal tunnel incision is well-healed she has \ngreat range of motion.  On her shoulder she has pain with \nabduction internal rotation.  She has a positive impingement \nsign positive supersize provocative test positive crossarm.  \nMinimal AC joint tenderness. \nX-rays:  3 views right shoulder show questionable osteophyte \noff the anterior acromion minimal AC joint changes no \nglenohumeral changes.... \nAfter discussion of the risks and benefits, the patient elected \nto proceed with a Depo-Medrol injection into the right \nshoulder(s).  The injection was for treatment of \nimpingement.... \n \n The record indicates that Dr. Benafield performed another right \nshoulder injection on or about April 2, 2023.   \nA pre-hearing order was filed on June 1, 2023.  According to the pre-\nhearing order, the claimant contended, “She injured her right elbow and \nshoulder while pulling chicken apart and is entitled to medical treatment.  \n\nTINAJERO - H300652  9\n  \n \n \nClaimant reserves all other issues.”  The parties stipulated that the \nrespondents “have controverted the claim in its entirety.”  The respondents \ncontended, “Claimant did not sustain a compensable injury as that term is \ndefined by Act 796.”  \n The parties agreed to litigate the following issues: \n1.  Whether claimant sustained a compensable injury on or \nabout November 30, 2021. \n  2.  Whether claimant is entitled to medical treatment.   \n \n Dr. Benafield reported on or about August 7, 2023: \nPatient seen in follow-up for the right shoulder after the MRI.  \nThis showed low-grade partial-thickness articular surface tear \nof the infraspinatus intrasubstance tear of the distal \nsupraspinatus and some degenerative changes of the AC joint \nand a type II acromion.  In March she had a subacromial \ninjection that only gave her 40% improvement for about 2 \nweeks.... \nAfter discussion of the risks and benefits, the patient elected \nto proceed with a Depo-Medrol injection into the right ac \njoint(s).  The injection was for treatment of arthritis.... \nI have discussed with the patient through an interpreter \nregarding her MRI findings.  There is nothing I see that needs \nsurgery at the present time.  Given the lack of response to the \nprevious injection I think that we should try an AC joint \ninjection.  This was explained to the patient she agreed and \ntolerated it well.  We discussed how this makes most of her \npain go away it is likely that it will take a distal clavicle \nexcision to make the pain go away and stay away.  I will see \nher back in a month to assess how the injection did.   \n \n Dr. Benafield assessed “1.  Impingement syndrome of right shoulder \nregion” and “2.  Arthritis of acromioclavicular joint.”   \n\nTINAJERO - H300652  10\n  \n \n \n Dr. Benafield stated on September 11, 2023, “We will try a month of \nformal physical therapy to the shoulder and if that does not improve then we \nare going to have to have a discussion about surgical intervention.”   \nAfter a hearing, an administrative law judge filed an opinion on \nDecember 15, 2023.  The administrative law judge found, among other \nthings, that the claimant proved she sustained a compensable injury.  The \nrespondents appeal to the Full Commission. \nII.  ADJUDICATION \n Ark. Code Ann. §11-9-102(4)(Repl. 2012) provides, in pertinent part: \n  (A)  “Compensable injury” means: \n(i)  An accidental injury causing internal or external physical \nharm to the body ... \narising out of and in the course of employment and which \nrequires medical services or results in disability or death.  An \ninjury is “accidental” only if it is caused by a specific incident \nand is identifiable by time and place of occurrence[.]   \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 \n\nTINAJERO - H300652  11\n  \n \n \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, “3.  \nClaimant has met her burden of proof by a preponderance of the evidence \nthat she sustained a compensable injury to her right shoulder on or about \nNovember 30, 2021, and is entitled to reasonable and necessary medical \ntreatment for that injury as recommended by Dr. Robert Benafield.”  The \nFull Commission finds that the claimant proved by a preponderance of the \nevidence that she sustained a compensable injury.   \n The claimant became employed with the respondents in 2015.  The \nclaimant testified that she was a “Sorter,” processing chickens for the \nrespondent-employer.  The parties stipulated that the employment \nrelationship existed on or about November 30, 2021.  The claimant testified \nthat, while operating a machine for the respondents, she “felt something hot \non my shoulder all the way to the elbow....I told the supervisor that my arm \nwas burning a lot.”  The claimant began treating with a company nurse on \nDecember 8, 2021, who reported only pain in the claimant’s right elbow.  A \nphysical therapist reported on December 10, 2021 that the claimant was \nsuffering with pain in her “Upper Extremity.”  The physical therapist \nexpressly noted on December 20, 2021 that the pain was radiating “from \nshoulder to outer arm.”   \n\nTINAJERO - H300652  12\n  \n \n \n The claimant began treating at Arkansas Occupational Medicine \nServices on January 5, 2022.  At that time, a physician’s assistant reported \nthat that claimant had overworked her elbow “and shoulder” while \nprocessing chicken for the respondents.  The claimant was treated \nconservatively.  The company nurse reported on January 26, 2022 that the \npain was “shooting into her shoulder.”  Beginning January 12, 2023, \nCandise Bostedt, RN noted that the claimant was suffering from pain in her \nright shoulder as the result of an incident occurring November 30, 2021.   \n Dr. Benafield treated the claimant’s right shoulder with injections and \nassessed “Impingement syndrome of right shoulder region.”  On August 7, \n2023, Dr. Benafield reported that an MRI showed “low-grade partial-\nthickness articular surface tear of the infraspinatus intrasubstance tear of \nthe distal supraspinatus and some degenerative changes of the AC joint \nand a type II acromion.”   \n In workers’ compensation cases, the Commission functions as the \ntrier of fact.  Blevins v. Safeway Stores, 25 Ark. App. 297, 757 S.W.2d 569 \n(1988).  The 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 seems worthy of belief.  Farmers \nCo-op v. Biles, 77 Ark. App. 1, 69 S.W.3d 899 (2002).   \n\nTINAJERO - H300652  13\n  \n \n \n In the present matter, the Full Commission finds that the claimant \nwas a credible witness.  The claimant has been employed with the \nrespondents since 2015 and continues to work for the respondents.  The \nclaimant testified that she began feeling a burning “on my shoulder all the \nway to my elbow” while performing employment services on or about \nNovember 30, 2021.  When she was allowed to see a physician at \nArkansas Occupational Medical Services on January 5, 2022, a physician’s \nassistant corroborated the claimant’s testimony that she felt a burning in her \nright shoulder as the result of her Sorter duties for the respondents.  The \nclaimant has continued to receive conservative medical treatment as a \nresult of her work-related shoulder complaints.   \n The Full Commission finds that the claimant proved she sustained a \n“compensable injury” in accordance with Ark. Code Ann. §11-9-\n102(4)(A)(i)(Repl. 2012).  The claimant proved that she sustained an \naccidental injury causing physical harm to the body.  The claimant proved \nthat she injury arose out of and in the course of employment and required \nmedical services.  The injury was caused by a specific incident and was \nidentifiable by time and place of occurrence on or about November 30, \n2021.  The claimant also established a compensable injury by medical \nevidence supported by objective findings, namely Dr. Benafield’s report of a \npartial-thickness tear in the claimant’s right shoulder.  We find that this \n\nTINAJERO - H300652  14\n  \n \n \npartial-thickness tear was causally related to the November 30, 2021 \ncompensable injury and was not the result of a prior injury or pre-existing \ncondition.     \n After reviewing the entire record de novo, the Full Commission finds \nthat the claimant proved she sustained a compensable injury to her right \nshoulder.  The claimant proved that the medical treatment of record \nprovided in connection with the claimant’s right shoulder injury, including \ntreatment provided by Dr. Benafield, was reasonably necessary in \naccordance with Ark. Code Ann. §11-9-508(a)(Repl. 2012).  For prevailing \non appeal to the Full Commission, the claimant’s attorney is entitled to a fee \nof five hundred dollars ($500), pursuant to Ark. Code Ann. §11-9-\n715(b)(Repl. 2012).   \n IT IS SO ORDERED. \n \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner \n \n \n \nCommissioner Mayton dissents. \n \n \nDISSENTING OPINION \n \nI respectfully dissent from the majority opinion.  In my de novo review \nof the file, I find that the claimant has failed to prove by a preponderance of \n\nTINAJERO - H300652  15\n  \n \n \nthe evidence that she suffered a compensable right shoulder injury on \nNovember 30, 2021. \nThe claimant in this matter alleges that she suffered an injury to her \nright shoulder when removing a little piece like a nerve from a chicken fillet \nwhile working for the respondent employer on November 30, 2021.  (Hrng. \nTr., P. 8).  When the claimant presented to the nurse’s station and \nsubmitted a Statement of Injury on December 8, 2021, the claimant \nreported a burning, painful sensation in her right elbow.  (Resp. Ex. 2, P. 1). \nWhile the claimant’s native language is Spanish and the form was in \nEnglish, an interpreter assisted the claimant in completing her paperwork. \n(Hrng. Tr., P. 19). \nThe claimant underwent on-site physical therapy before being sent to \nArkansas Occupational Health Center (AOHC) for an evaluation.  (Cl. Ex. 1, \nPp. 12-14).  The claimant was once again assisted by an interpreter and \nstated that her primary problem was pain in her right elbow.  (Resp. Ex. 1, \nP. 4).  PA-C Ceth Dawson fully examined the claimant and noted that her \nright shoulder was normal.  (Resp. Ex. 1, Pp. 4-6).  \nWhen the claimant later complained that the pain had gotten worse, \nPA-C Dawson issued a forearm strap and referred the claimant to physical \ntherapy.  (Resp. Ex. 1, Pp. 9-10).  At this January 12, 2022 appointment, \nPA-C Dawson examined the claimant and once again found that her \n\nTINAJERO - H300652  16\n  \n \n \nshoulder was normal.  (Resp. Ex. 1, P. 8).  The claimant was ultimately \nreleased to return to work on February 16, 2022.  (Resp. Ex. 1, P. 19) \nThe claimant later saw Dr. Robert Benafield at Ozark Orthopaedics \nwhere, in December of 2022, he performed a physical examination and \nconcluded that the claimant had a good range of motion in her right \nshoulder and that she did not exhibit any obvious signs of pain.  (Cl. Ex. 1, \nP. 48).  \nIt was not until March 1, 2023, that Dr. Benafield diagnosed the \nclaimant with impingement syndrome in her right shoulder.  (Cl. Ex. 1, P. \n53).  An MRI revealed a “low-grade partial thickness articular surface tear of \nthe infraspinatus intrasubstance tear of the distal supraspinatus and some \ndegenerative changes of the AC joint and a type II acromion.” (Cl. Ex. 1, P. \n65-66).  Dr. Benafield has opined that the claimant does not need surgery \nto treat her shoulder.  Id.  \nAfter a hearing on September 25, 2023, an administrative law judge \n(ALJ) ruled that the claimant has met her burden of proving that she \nsustained a compensable right shoulder injury on November 30, 2021.  \nArkansas 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 \n\nTINAJERO - H300652  17\n  \n \n \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 \nidentifiable by time and place of an occurrence.  Ark. Code Ann. § 11-9-\n102(4)(A)(i).  This, therefore, requires that a claimant establish by a \npreponderance of the evidence:  (1) an injury arising out of and in the \ncourse of employment; (2) that the injury caused internal or external \nphysical harm to the body which required medical services or resulted in \ndisability or death; (3) medical evidence supported by objective findings \nestablishing an injury as defined in Ark. Code Ann. §11-9-102(16) and; (4) \nthat the injury was caused by a specific incident identifiable by time and \nplace of occurrence.  Ark. Code Ann. § 11-9-102(4)(A)(i). \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).  \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 \n\nTINAJERO - H300652  18\n  \n \n \nCommission may not arbitrarily disregard medical evidence or the testimony \nof any witness.  Id.  \nThe 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 that it deems worthy of belief. \nWhite v. Gregg Agricultural Enterprises, 72 Ark. App. 309, 37 S.W.3d 649 \n(2001). \nIn the present case, the claimant did not report any shoulder \ncomplaints when she presented to the Tyson facility nurse on November \n30, 2021.  (Cl. Ex. 1, P. 1).  At that time, she stated that she was “sorting \nchicken and the right elbow started feeling hot and became painful.  Started \napprox. one week ago, but she thought it was just overworked that day and \nwas tired.”  Id.  \nDespite numerous encounters with Tyson’s nursing staff regarding \nher right arm and wrist beginning on December 8, 2021, the claimant did \nnot mention shoulder pain until January 12, 2023, well over two years after \nthe alleged injury.  (Cl. Ex. 1, Pp. 1-4).  The claimant reported “[d]iscomfort \nand tension with inflammation of lateral epicondyle” in her History and \nPhysical dated December 10, 2021 (Resp. Ex. 1, P. 1).  \nPrior to notifying the respondent employer of her alleged shoulder \ninjury, the claimant visited Ozark Orthopedics on September 27, 2022, \n\nTINAJERO - H300652  19\n  \n \n \nwhere she denied any injuries causing right arm and shoulder pain, stating \nthat her pain only started three days prior to that appointment.  (Cl. Ex. 1, P. \n20).  \nOn the basis of the medical records alone, it is obvious that the \nclaimant did not suffer a compensable right shoulder injury on November \n30, 2021.  There is simply no evidence that this issue was mentioned in the \ndays, weeks, or years following her initial complaints of right elbow pain. \nThe claimant’s claim should be rejected on this basis alone.  However, for \nthe ALJ, this matter came down to a question of the claimant’s credibility. \nIn workers’ compensation cases, a decision often rests solely on the \ncredibility of the claimant as a witness.  A determination of the weight and \ncredibility of a witness' testimony is exclusively within the province of the \nCommission.  Wade v. Mr. C. Cavenaugh's, 298 Ark. 363, 768 S.W.2d 521 \n(1989).  The Commission has the right to believe or disbelieve the \ntestimony of any witness, and the Commission's decision is entitled to the \nweight we give a jury verdict.  Tyson Foods, Inc. v. Disheroon, 26 Ark. App. \n145, 761 S.W.2d 617 (1988).  Importantly, a claimant’s testimony is never \nuncontroverted.  Nix v. Wilson World Hotel, 46 Ark. App. 303, 879 S.W.2d \n457 (1994). \nIn his order, the ALJ relies on two points in judging the claimant to be \na credible witness:  (1) a note from the claimant’s second physical therapy \n\nTINAJERO - H300652  20\n  \n \n \nsession stating, “nothing was mentioned about her arm and shoulder \ndiscomfort this session”, and (2) the fact that the Statement of Injury form \nwas in English while the claimant’s primary language is Spanish.  (P. 6; see \nalso Resp. Ex. 1, P. 3, Resp. Ex. 2, P. 1).  This determination is flawed from \nthe outset.  \nAlthough Spanish is the claimant’s first language, a translator was \npresent to read the Statement of Injury form to the claimant and to translate \nthat response to nursing staff.  (Hrng. Tr., Pp. 19-23).  Further, the physical \ntherapy report states that there was “nothing stated regarding arm or \nshoulder discomfort” during the claimant’s December 13, 2021 session. \n(Resp. Ex. 1, P. 3).  \nThe ALJ’s findings and assumption that the claimant reported a \nshoulder injury because of an entry noting that nothing was mentioned \nabout her arm and shoulder during a physical therapy treatment is \nunfounded speculation.  The claimant not mentioning shoulder discomfort \nduring physical therapy is not, itself, evidence of a shoulder injury.  There is \nno evidence in the record supporting this assumption, and the ALJ is \nsubstituting his own conjecture for evidence.  Speculation and conjecture \ncannot substitute for credible evidence.  Smith-Blair, Inc. v. Jones, 77 Ark. \nApp. 273, 72 S.W.3d 560 (2002). \n\nTINAJERO - H300652  21\n  \n \n \nThe claimant repeatedly demonstrates that she is not a credible \nwitness.  Not only does her self-serving testimony directly contradict the \nfacts in the record, but she has apparently been untruthful to her treating \npractitioners on multiple occasions.  In her testimony, the claimant states \nthat she repeatedly informed Tyson’s medical staff that she was suffering \nfrom right shoulder pain, and this information never made it into her \nrecords.  (See Hrng. Tr., Pp. 16-23).  This strains credibility.  \nWhile a single incident of an error in medical records is not unheard \nof, it seems unlikely that the same error would occur on numerous \noccasions while speaking with different practitioners and with different \ntranslators.  Further, if the claimant did indeed injure her shoulder on \nNovember 30, 2021, then she did not give a truthful history to Ozark \nOrthopaedics in September of 2022 when she reported that she had \nsuffered no injury and that her pain began three days prior.  (Cl. Ex. 1, P. \n20).  \nThis issue arose again when the claimant informed Tyson nurses \nthat her doctor instructed her to obtain an injection if she was experiencing \npain.  (Cl. Ex. 1., P. 3).  However, after attempting to verify this information \nwith Trinity Rehabilitation and AOHC, Tyson’s medical staff determined that \nthe claimant had received no such direction.  Id.  The claimant is not a \ncredible witness, and we must disregard her testimony. \n\nTINAJERO - H300652  22\n  \n \n \nBecause the claimant’s testimony is unreliable and her statements \ncannot be trusted, we are left to rely only on the facts found in the medical \nrecords in this matter.  Those records reflect that the claimant did not so \nmuch as mention her right shoulder until September of 2022 and did not \ninform her employer of any issues regarding her shoulder until January of \n2023, well over two years from the date of the alleged injury.  The first \nmention of the claimant’s shoulder was to Ozark Orthopaedics, and the \nclaimant stated that her shoulder pain had only begun in September of \n2022.  \nThere is simply no evidence that the claimant suffered a right \nshoulder injury on November 30, 2021. \nAccordingly, for the reasons set forth above, I must dissent. \n \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner","preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H300652 LORENA TRUJILLO-TINAJERO, EMPLOYEE CLAIMANT TYSON POULTRY, INC., EMPLOYER RESPONDENT TYNET CORPORATION, INSURANCE CARRIER/TPA RESPONDENT OPINION FILED JUNE 13, 2024","fetched_at":"2026-05-19T22:29:45.286Z","links":{"html":"/opinions/full_commission-H300652-2024-06-13","pdf":"https://labor.arkansas.gov/wp-content/uploads/Tinajero_Lorena_H300652_20240613.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/"}}