{"id":"full_commission-H301211-2024-05-21","awcc_number":"H301211","decision_date":"2024-05-21","opinion_type":"full_commission","claimant_name":"Wesley Givens","employer_name":"J.E.L. Enterprises, LLC","title":"GIVENS VS. J.E.L. ENTERPRISES, LLC AWCC# H301211 MAY 21, 2024","outcome":"unknown","outcome_keywords":[],"injury_keywords":["back","neck","shoulder","fracture","cervical","lumbar","sprain","strain"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/Givens_Wesley_H301211_20240521.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Givens_Wesley_H301211_20240521.pdf","text_length":32343,"full_text":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n \nCLAIM NO.  H301211 \n \nWESLEY C. GIVENS, \nEMPLOYEE \n \nCLAIMANT \nJ.E.L. ENTERPRISES, LLC, d/b/a PLANT \nSERVICES OF NORTH LITTLE ROCK, \nEMPLOYER \n \nRESPONDENT \nAUTO OWNERS INSURANCE COMPANY, \nINSURANCE CARRIER/TPA \nRESPONDENT \n  \n      \nOPINION FILED MAY 21, 2024 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE LAURA BETH YORK, Attorney \nat Law, Little Rock, Arkansas. \n \nRespondents represented by the HONORABLE RANDY P. MURPHY, \nAttorney at Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Affirmed. \n \n \n OPINION AND ORDER \nThe claimant appeals an administrative law judge’s opinion filed \nJanuary 8, 2024.  The administrative law judge found that the claimant \nfailed to prove he sustained a compensable injury.  After reviewing the \nentire record de novo, the Full Commission affirms the administrative law \njudge’s finding.  The Full Commission finds that the claimant was not \nperforming employment services at a time when the alleged physical \ninjuries were inflicted.      \nI.  HISTORY \n\nGIVENS - H301211  2\n  \n \n \n Wesley Craig Givens, now age 63, testified that he became \nemployed with the respondents, Plant Services, in 2016.  Mr. Givens \ndescribed his job for the respondent-employer:  “It was to maintain and take \ncare of plants in offices, homes, buildings, help install plants, pull out bad \nplants, unload trucks.”     \nThe record includes a series of Plant Services “Daily Logs” \napparently submitted by the claimant beginning July 20, 2022.  The Daily \nLogs included listings of an Account, Time-In, Time-Out, Start Mileage, and \nEnd Mileage.  The record indicates that the last Daily Log submitted by the \nclaimant was dated December 6, 2022.   \nThe parties stipulated that the employment relationship existed at all \npertinent times, including December 15, 2022.  The claimant testified on \ndirect examination: \n Q.  What was going to be your route on December 15\nth\n, 2022? \nA.  I was starting at Park Plaza doing the plants there, then I \nwas gonna leave Park Plaza and go to Corky’s on Bowman, \nand then I was going to Farm Bureau, and then I was going to \nParker Lexus right around the corner.... \nQ.  Now, where was the first place that you stopped on \nDecember 15\nth\n, 2022. \nA.  Park Plaza....I have a little wagon, and I have a – a \ncontainer, a plastic container that I fill up with water, and I had \nto take it out to the car, unload, put everything away, then I \nhave to come back into the office to sign out because you \nhave – it was the last thing you did.  Then I went out to the \ncar, got into the car, filled out my time at the mall that was on \nmy clipboard, and I pulled out going towards Markham. \nQ.  Okay.  Now, were you in a company car or were you in \nyour own personal vehicle? \n\nGIVENS - H301211  3\n  \n \n \nA.  No, I was in a company car.   \nQ.  Who owns that car? \nA.  JEL Enterprise Plant Service.   \nQ.  And where were you headed? \nA.  I was headed to Corky’s on Bowman. \nQ.  Were you headed to Corky’s to eat lunch or were you \nheaded to Corky’s to take care of their plants? \nA.  To do their plants.  I had to be there – I had to be there \nbefore 10:00 or 10:15 to give me enough time, ‘cause people \nstart coming in at 10:30.   \nQ.  Okay.  What happened on that route? \nA.  I pulled out and made a right turn onto West Markham.  I \ncame up to a red light and I stopped.  I was in the second lane \ngoing west.  The light was red.  A lady pulled up in the turn \nlane, and she rolled down the window and she yelled.  I had to \nopen my window and ask her what she needed, and she said, \n“I’m runnin’ late.  Can I make a turn in front of you?”  I looked \nto the right and I looked to the left and behind me, and there \nwas nobody coming, so I said, “Sure, go ahead.”  So I let her \ngo in front of me.  After she had met the turn, I had just started \nhittin’ the gas and all of a sudden I saw this person coming to \nme from the far left lane, and she had turn – I thought she was \ngoing through and she just all of a sudden swerved her car \nand came right at me....I was facing west, and I got spun \naround and I was then facing east.... \nQ.  What happened to your body on the inside of that vehicle \nwhen the collision occurred? \nA.  I – she hit me on the driver’s door and the back seat doors.  \nI held onto the steering wheel and I hit the passenger door.  I \nslung across – I hit on the console, the stuff that I had on the \nseat, and I hit the door on the other side.... \nQ.  Did anyone other than the paramedics and the police \nofficers come to the scene of the accident that you know of? \nA.  Um, Jane Lanning and Wanda Yarber, they came and \ncleaned out the car.   \nQ.  At the scene of the accident? \nA.  Aft – yes.  After I had been taken to the – to the hospital.   \nQ.  Okay.  How did Jane know that you’d been in an accident? \nA.  I sent – we have a group text between Jane, Teresa and \nmyself, and I sent her a text.   \nQ.  Okay.  What did you have inside that vehicle? \n\nGIVENS - H301211  4\n  \n \n \nA.  I had my water equipment.  I had bought groceries and my \ngroceries were in the car, because the one paramedic brought \nan orange back ‘cause it was my breakfast.   \nQ.  Did you have your paperwork that you would fill out to turn \nin –  \nA.  Yes. \nQ.  – for your –  \nA.  All my – all my daily log paperwork was in the car.  I had \nstuff in the doors, this and that, and stuff got wet. \nQ.  Okay.  So the Daily Log that was in your vehicle that you \nfill out to show where you’ve been –  \nA.  Correct. \nQ.  – was no longer in your possession? \nA.  No.... \nQ.  So you never made it to Corky’s? \nA.  No.   \n    \nA Metro EMS Ambulance Patient Care Record dated December 15, \n2022 indicated that an ambulance was On Scene at approximately 9:58 \na.m.: \n62 y/o m cc of neck pain.  Pt was involved in a two car MVC.  \nPt was a restrained driver of a small SUV.  Pt was struck on \nthe driver side causing moderate damage to the car.  The Pt \nstated that he was driving around 30mph.  Pt stated that his \nneck hurts.  Pt had no other complaints or obvious injuries.  Pt \nhad all SMC’s intact.  A C-collar was placed on the Pt.  The Pt \nwas assisted and secured to the cot.  Treatment and \nassessment times are approx.  Pt was transported to SVI LR.  \nPt care turned over the ER staff.   \n \n An x-ray of the claimant’s left shoulder was taken on December 15, \n2022 with the findings, “No fracture is identified.  No dislocation is identified.  \nNo arthritis is noted.  No suspicious periosteal reaction or unexpected \nforeign body is seen.”  A CT of the claimant’s cervical spine was taken on \nDecember 15, 2022 with the impression, “There is some degenerative \n\nGIVENS - H301211  5\n  \n \n \nchange of the cervical spine but no fracture or subluxation.”  A CT of the \nclaimant’s lumbar spine was taken on December 15, 2022 with the \nimpression, “Advanced degenerative change of the lumbar spine as \ndiscussed above but no fracture or subluxation.”   \nAn emergency physician diagnosed “Cervical sprain” on December \n15, 2022 and it was noted, “The patient presents following motor vehicle \ncollision.  The onset was just prior to arrival.  The Collision was passenger \nside impact.  The patient was the driver....Location:  back.  The degree of \npain is minimal.”  The claimant was discharged to Home and was \nprescribed medication.  The claimant testified that he did not return to work \nfor any employer after the December 15, 2022 motor vehicle accident. \nThe respondents’ attorney cross-examined the claimant: \nQ.  Now you’ve confirmed with your attorney that you never \nreported – formally reported a workers’ compensation claim \nwith Jane Lanning. \nA.  No.   \nQ.  Okay.  And you never asked Jane Lanning or the workers’ \ncomp carrier to provide any type of medical; you did that on \nyour own. \nA.  Correct.   \nQ.  Okay.  Now you, of course, went to the emergency room \nby ambulance after the accident? \nA.  Yes.... \nQ.  Jane and Wanda also came to the emergency room at St. \nVincent’s, correct? \nA.  Yes.... \nQ.  Did you tell Jane and Wanda that you were done for the \nday and you were going home? \nA.  Not that I remember.   \nQ.  Okay.  Could you have said that to them at that time? \n\nGIVENS - H301211  6\n  \n \n \nA.  I might’ve but I cannot remember it. \nQ.  Okay.  You just don’t remember? \nA.  I don’t remember.... \nQ.  Now let’s talk about your route with Park Plaza Mall.  You \nwere there [on] December 15? \nA.  Yes. \nQ.  Okay.  I don’t think anybody’s disputing that you were \nthere at Park Plaza Mall on December 15, just for the record, \nand you had serviced that account and had completed your \nwork there when the accident happened. \nA.  Yes.   \n \n The claimant was transported via ambulance to Baptist Health \nMedical Center on December 19, 2022.  The claimant complained of \nGeneralized Weakness and Abdominal Pain.  Physical examination at that \ntime showed “Right arm diffuse tenderness and swelling.”  An MRI of the \nclaimant’s cervical spine was taken on December 19, 2022: \n1.  There is no acute displaced fracture or gross \nmalalignment.  There is mild endplate stress response across \nthe C5-6 level again without acute displaced fracture. \n2.  There are degenerative changes across the C5-6 level with \nmild canal narrowing but no cord compromise.  There is \nmoderate to severe right foraminal narrowing. \n3.  There is bulging with mild canal narrowing at the C6-7 level \nwithout cord compromise.  There is mild to moderate bilateral \nforaminal narrowing left greater than right.   \n \n A CT of the claimant’s neck was taken on December 19, 2022 and \nthe findings included, “MARROW:  There is no pathologic marrow signal \nintensity.  There is mild endplate stress response and edema across the \nC5-6 level without acute displaced fracture.”  It was reported on December \n19, 2022 that the CT of the claimant’s cervical spine showed “No evidence \n\nGIVENS - H301211  7\n  \n \n \nof acute fracture or subluxation.”  A CT of the claimant’s head showed “No \nacute intracranial abnormality.”  An x-ray of the claimant’s right humerus \nshowed “No fracture.”  The claimant was diagnosed with “Motor vehicle \ncollision, initial encounter.  Strain of right shoulder, initial encounter.”     \nA note was written at Parker Cadillac on January 18, 2023 indicating, \n“We have not seen Wes Givens with The Plant Services for the month of \nDecember, taking care of the plants.” \nAn x-ray of the claimant’s cervical spine was taken at Cabot \nEmergency Hospital on January 26, 2023 with the impression, “Slightly \nlimited exam despite swimmer’s view.  Degenerative disc disease is seen at \nC5-C6.  No definite vertebral body compression fracture.  Straightening of \nnormal cervical lordosis may be secondary to muscle spasm.”   \nAn MRI of the claimant’s right shoulder was also taken on January \n26, 2023, with the following impression: \n 1.  No fracture or dislocation of the right shoulder. \n2.  Osteoarthritis of the acromioclavicular and glenohumeral \njoints noted.   \n \n Additionally, an x-ray of the claimant’s lumbar spine was taken on \nJanuary 26, 2023 with the following impression: \n1.  Minimal superior endplate height loss with slight anterior \nwedging at L1, L2, and L3.  No posterior cortex height loss or \nevidence of any retropulsion. \n2.  Mild posterior disc height loss at L2/L3 and L5/S1 along \nwith L4/L5 and L5/S1 facet hypertrophy. \n3.  Trace levoscoliosis.  No significant listhesis.   \n\nGIVENS - H301211  8\n  \n \n \n \n An MRI of the claimant’s brain was taken on February 3, 2023, with \nthe following impression: \n1.  Multiple T2 and FLAIR hyperintense foci in bilateral frontal, \nparietal, parieto-occipital white matter and pons, suggestive of \nUBOs (unidentified bright object) non-specific lacunes.  \nPeriventricular white matter hyperintensity.  These can be \nseen in patients with chronic small vessel ischemic disease or \ncan be seen in patient with headaches.  Please correlate \nclinically. \n2.  Mild cerebral and cerebellar atrophy. \n3.  Partially empty Sella. \n4.  Mild tortuosity of the cavernous portions of both the \ninternal carotid arteries. \n5.  Incidental note is made of minimal mucosal thickening in \nbilateral mastoid air cells.   \n6.  Mild mucosal thickening in ethmoid air cells and maxillary \nsinuses.   \n \n An MRI of the claimant’s right shoulder was taken on February 3, \n2023: \nHISTORY:  Patient was involved in a motor vehicle accident \non 12/15/2022.... \nIMPRESSION:  1.  Partial tear involving the subscapularis \ntendon. \n  2.  Partial tear involving the supraspinatus tendon. \n3.  Mild to moderate tendinosis involving the rest of the \nsupraspinatus tendon.   \n  4.  Tendinosis of infraspinatus tendon. \n5.  Suspicious tear involving the posterior-superior labrum.  \nHowever, please correlate clinically as lack of significant \ndiffusion limits evaluation of the labrum. \n6.  Mild thickening of the inferior gleno-humeral ligament, with \nhyperintense signal.  This can be due to edema or can be due \nto adhesive capsulitis.  Please correlate clinically. \n7.  Mild fluid in subacromial – subdeltoid and subcoracoid \nbursae and also along the biceps tendon. \n\nGIVENS - H301211  9\n  \n \n \n8.  Hyperintense signal involving the biceps tendon, \nsuggestive of biceps tendinosis. \n9.  Moderate changes of osteoarthritis in the gleno-humeral \njoint. \n10.  Mild synovial effusion. \n11.  Moderate degenerative changes in the acromio-clavicular \njoint, with hypertrophic spurs.   \n12.  Subtle altered marrow signal intensity along the articular \nmargins of the acromio-clavicular joint.  This can represent \ndegenerative or traumatic edema. \n13.  Mild lateral downsloping of the acromion.   \n14.  Subtle hyperintense signal involving the infraspinatus \nmuscle.  This can represent mild contusion/edema.   \n \n An MRI of the claimant’s lumbar spine on February 3, 2023 showed \nabnormalities including a herniation of the L3-4 disc.   \n A physician’s assistant performed a right shoulder steroid injection \non February 3, 2023.   \n The record indicates that Dr. Chandrakanth Boddu performed a \ncervical epidural injection and lumbosacral epidural injection on February \n10, 2023. \n Dr. Boddu informed the claimant on February 13, 2023, “I am writing \nconcerning your care and treatment that has been provided thus far.  It is \nmy belief the injury you sustained was proximately caused by the motor \nvehicle accident occurring on December 15, 2022.”   \n Dr. Boddu performed a “Cervical and lumbar radiofrequency ablation \nof medial branch” on February 23, 2023.   \n\nGIVENS - H301211  10\n  \n \n \n Dr. Boddu performed right shoulder surgery on or about March 31, \n2023:  “1.  Debridement of synovitis.  2.  Debridement of subacromial bursa.  \n3.  Debridement of the cuff tear.  4.  Subacromial decompression.  5.  \nAcromioclavicular joint distal clavicle excision.”  The post-operative \ndiagnosis was “1.  Synovitis.  2.  Subacromial bursitis.  3.  Possible partial-\nthickness cuff tear on the bursal surface.  4.  Impingement syndrome.  5.  \nPosttraumatic acromioclavicular joint injury.”      \nA pre-hearing order was filed on August 2, 2023.  According to the \npre-hearing order, the claimant contended, “The claimant contends that on \nDecember 15, 2022, he was involved in a motor vehicle accident (MVA) \nwithin the course and scope of his employment.  The claimant contends he \nwas driving his employer’s vehicle when the MVA occurred, and he \nsustained injuries to his head, neck/cervical spine, lower back/lumbar spine, \nright shoulder, and right knee as a result of the subject MVA.  The claimant \nfurther contends the respondent-employer, J.E.L. Enterprises (JEL), first \nrefused to file a claim, so the claimant filed a Form AR-C on February 23, \n2023, and thereafter the respondents denied the claim in its entirety.  The \nclaimant contends he was forced to obtain his own medical treatment which \nincluded an MRI of his lumbar spine which revealed disc herniations at L3-\n4, L4-5, L5-S1; an MRI to his right shoulder which revealed tears; an MRI of \nhis brain which revealed a diffuse traumatic brain injury; and an MRI of his \n\nGIVENS - H301211  11\n  \n \n \ncervical spine which revealed a disc herniation at C5-6.  The claimant \ncontends he has undergone a rhizotomy for his cervical spine and his \nlumbar spine injuries; an arthroscopic surgery to his right shoulder; he has \nbeen diagnosed as having post-concussion syndrome; and his doctor has \nrecommended he undergo an anterior cervical discectomy and fusion \n(ACDF) at C5-6, all as a direct result of the subject MVA.  Therefore, the \nclaimant contends he is entitled to payment of his medical and related \nexpenses; to TTD benefits from December 16, 2022, through a date yet to \nbe determined; and that his attorney is entitled to a controverted attorney’s \nfee.  The claimant reserves the right to plead further upon the completion of \nnecessary and appropriate investigation and discovery; and specifically \nreserves any and all other issues for future determination and/or litigation.”   \n The parties stipulated that the respondents “have controverted this \nclaim in its entirety.”  The respondents contended that the claimant “was not \nperforming ‘employment services’ at the time of the subject MVA.  The \nrespondents further contend the claimant cannot meet his burden of proof \npursuant to the Act in demonstrating he sustained any compensable injuries \nwithin the course and scope of his employment with JEL.  The respondents \nreserve the right to plead further upon the completion of necessary and \nappropriate investigation and discovery; and specifically reserve any and all \nother issues for future determination and/or litigation.”   \n\nGIVENS - H301211  12\n  \n \n \n The parties agreed to litigate the following issues: \n1.  Whether the claimant sustained compensable injuries \nwithin the meaning of the Arkansas Workers’ Compensation \nAct (the Act) to his head, neck/cervical spine, lower \nback/lumbar spine, right shoulder, and right knee, on \nDecember 15, 2022.   \n2.  If the claimant’s alleged injuries are deemed compensable, \nto extent to which he is entitled to medical and indemnity \nbenefits. \n3.  Whether the claimant’s attorney is entitled to a \ncontroverted fee on these facts.   \n4.  The parties specifically reserve any and all other issues for \nfuture litigation and/or determination.   \n \n Dr. Boddu performed low back surgery on August 17, 2023:  “L3-4 \nand L4-5 central canal and bilateral lateral recess decompression.”  The \npost-operative diagnosis was “L3-4 and L4-5 stenosis.  MRI shows L3-4 \nmild to moderate bilateral lateral recess stenosis and mild central canal \nstenosis; the L4-5 shows moderate bilateral lateral recess stenosis and \nmoderate central canal stenosis.”   \nA hearing was held on October 10, 2023.  The respondents’ attorney \nexamined the company owner, Jane Ellen Lanning: \nQ.  From a personal standpoint, how would you describe your \nrelationship with Wesley Givens over the past 30 to 35 years? \nA.  We’ve been the best of friends.... \nQ.  Now I want to talk about Mr. Givens’ route.  Are those \nreflected on the Daily Log sheets?   \nA.  Yes, they are.... \nQ.  Did you ever receive any Daily Log sheets after December \n6? \nA.  No.   \nQ.  Did you turn in all of the Daily Log sheets to my law firm \noffice? \n\nGIVENS - H301211  13\n  \n \n \nA.  Yes.... \nQ.  Have you ever seen the Daily Log sheets after December \n6? \nA.  I have not....   \nQ.  Did you have a conversation at the hospital with Mr. \nGivens? \nA.  Yes.... \nQ.  And did Mr. Givens make any statement about where he \nhad been or where he was going or what his activities were? \nA.  He said – he said that he was leaving Park Plaza to go \nhome and out of nowhere boom, this lady just hit him.... \nQ.  You don’t know whether he intended to stop anywhere \nbefore he went home?   \nA.  I have no idea. \nQ.  Okay.  He didn’t say anything about going to work any \nadditional accounts, did he? \nA.  No.   \nQ.  Okay.  Now, you’re familiar with the Daily Logs and the \nroute that Mr. Givens normally did on days when he serviced \nthe mall.  Is that right? \nA.  Yes.   \nQ.  Okay.  And when you looked at these, were you able to \nsee that the West Little Rock accounts were before the mall? \nA.  Yeah.   \n \n An administrative law judge filed an opinion on January 8, 2024.  The \nadministrative law judge found, among other things, that the claimant failed \nto prove he sustained a compensable injury.  The administrative law judge \ntherefore denied the claim.  The claimant appeals to the Full Commission. \nII.  ADJUDICATION \n Act 796 of 1993, as codified at Ark. Code Ann. §11-9-102(4)(Repl. \n2012), 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 \n\nGIVENS - H301211  14\n  \n \n \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(B)  “Compensable injury” does not include: \n(iii)  Injury which was inflicted upon the employee at a time \nwhen employment services were not being performed[.]   \n \n An employee is performing employment services when he is doing \nsomething that is generally required by his employer.  Dairy Farmers of \nAmerica v. Coker, 98 Ark. App. 400, 255 S.W.3d 905 (2007).  The Arkansas \nCourt of Appeals uses the same test to determine whether an employee is \nperforming employment services as it does when determining whether an \nemployee is acting within the course and scope of employment.  Pifer v. \nSingle Source Transp., 347 Ark. 851, 69 S.W.3d 1 (2002).  The test is \nwhether the injury occurred within the time and space boundaries of the \nemployment, when the employee was carrying out the employer’s purpose \ndirectly or indirectly.  Id.   \n The employee has the burden of proving by a preponderance of the \nevidence that he 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 It is the duty of the Full Commission to enter findings in accordance \nwith the preponderance of the evidence, not whether there is substantial \n\nGIVENS - H301211  15\n  \n \n \nevidence to support an administrative law judge’s findings.  Roberts v. Leo \nLevi Hospital, 8 Ark. App. 184, 649 S.W.2d 402 (1983).  The Full \nCommission reviews an administrative law judge’s opinion de novo, and it is \nthe duty of the Full Commission to conduct its own fact-finding independent \nof that done by an administrative law judge.  Crawford v. Pace Indus., 55 \nArk. App. 60, 929 S.W.2d 727 (1996).  The Full Commission enters its own \nfindings in accordance with the preponderance of the evidence.  Tyson \nFoods, Inc. v. Watkins, 31 Ark. App. 230, 792 S.W.2d 348 (1990).  The Full \nCommission is not required to believe the testimony of the claimant or any \nother witness but may accept and translate into findings of fact only those \nportions of the testimony it deems worthy of belief.  Farmers Co-op v. Biles, \n77 Ark. App. 1, 69 S.W.3d 899 (2002).   \n An administrative law judge found in the present matter, “2.  The \nclaimant has failed to meet  his burden of proof in demonstrating he was \nengaged in the performance of employment services at the time of the \nsubject December 15, 2022, MVA.”  The Full Commission finds that the \nalleged physical injuries on December 15, 2022 were inflicted upon the \nclaimant at a time when employment services were not being performed.     \n The claimant testified that he became employed with the \nrespondents, Plant Services, in 2016.  The claimant testified that his job \nbasically entailed maintaining and caring for plants in various locations.  As \n\nGIVENS - H301211  16\n  \n \n \nwe have discussed, the record includes a series of Plant Services “Daily \nLogs” which the claimant apparently compiled for the period beginning July \n20, 2022.  Illustrative of these Daily Logs is an entry dated August 9 where \nthe claimant appeared to have logged that he serviced plants at Corky’s \nRibs & BBQ in West Little Rock for approximately 18 minutes before \ntraveling to Park Plaza Mall for employment duties at that location.  There \nwere no Daily Logs demonstrating that the claimant ever began his work \nduties at Park Plaza Mall before proceeding to Corky’s in West Little Rock.     \n The parties stipulated that the employment relationship existed on \nDecember 15, 2022.  The claimant testified that he was working for the \nrespondents that day at Park Plaza before driving to Corky’s in West Little \nRock.  The claimant testified that he had finished his duties at Park Plaza \nand proceeded to drive on West Markham toward Corky’s restaurant, when \nhis car was struck on the passenger side by another vehicle.  The claimant \ntestified that his Daily Log to corroborate his testimony with regard to \nDecember 15, 2022 was not available because “stuff got wet.”  Based on \nthe evidence before us, the Full Commission finds that the claimant was not \na credible witness.  We instead find credible the testimony of the \nowner/operator for Plant Services, Jane Ellen Lanning.  Ms. Lanning \ntestified that the claimant informed her the December 15, 2022 motor \nvehicle accident occurred while “he was leaving Park Plaza to go home.”  \n\nGIVENS - H301211  17\n  \n \n \nMs. Lanning testified that the claimant was not driving to another work \nlocation such as Corky’s at the time of the accident, and that she never saw \na Daily Log corroborating the claimant’s testimony.  The Full Commission \ndoes not find credible the claimant’s assertion that the December 15, 2022 \nDaily Log was essentially ruined, destroyed, or no longer in his possession \nas a result of the accident. \n We recognize that a claimant may be performing employment \nservices if the employer requires him to travel from jobsite to jobsite as part \nof his work.  See Moncus v. Billingsley Logging, 366 Ark. 383, 235 S.W.3d \n877 (2006).  In the present case, however, the evidence does not \ndemonstrate that the employer required or directed the claimant to travel \nfrom Park Plaza to Corky’s or any other location at the time of the accident \non December 15, 2022.  Instead, we again find credible Jane Ellen \nLanning’s testimony that the claimant had finished his work for the day at \nthe time the accident occurred.  The critical inquiry in accordance with Act \n796 is whether the claimant was performing employment services when the \ninjury occurred.  See Parker v. Comcast Cable Corp., 100 Ark. App. 400, \n269 S.W.3d 391 (2007), citing Moncus, supra.  The Commission is bound to \nexamine the activity the claimant was engaged in at the time of the accident \nin determining whether or not he was performing employment services.  Hill \nv. LDA Leasing, 2010 Ark. App. 271, 374 S.W.3d 268 (2010).  In the \n\nGIVENS - H301211  18\n  \n \n \npresent matter, the evidence does not demonstrate that the claimant was \nperforming employment services at the time of the December 15, 2022 \nmotor vehicle accident.   \n After reviewing the entire record de novo, the Full Commission finds \nthat the claimant did not prove by a preponderance of the evidence that he \nsustained a compensable injury.  The Full Commission finds that the \nclaimant was not performing employment services at the time of the \nDecember 15, 2022 motor vehicle accident.  This claim is therefore \nrespectfully denied and dismissed. \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. \nDISSENTING OPINION \n The ALJ found that the Claimant failed to prove, by a preponderance \nof the evidence, that he was engaged in the performance of employment \nservices at a time when the alleged physical injuries were inflicted on \nDecember 15, 2022 and that the Claimant has failed to meet his burden of \nproof in demonstrating he sustained a compensable injury to his lumbar \n\nGIVENS - H301211  19\n  \n \n \nspine, cervical spine, right shoulder and right knee.  I disagree, I would rule \nin favor of the Claimant as having been engaged in performing employment \nservices and sustaining a compensable injury to his right shoulder.  \n An employee is performing employment services when he is doing \nsomething that is generally required by his employer.  Dairy Farmers of \nAmerica v. Coker, 98 Ark. App. 400, 255 S.W.3d 905.  The Arkansas Court \nof Appeals uses the same test to determine whether an employee is \nperforming employment services as it does when determining whether an \nemployee is acting within the course and scope of employment.  Pifer v. \nSingle Source Transp., 347 Ark. 851, 69 S.W.3d 1 (2002).  The test is \nwhether the injury occurred within the time and space boundaries of the \nemployment when the employee was carrying out the employer’s purpose \ndirectly or indirectly.  Id.  \n For the case at hand, Claimant was assigned to work at Park Plaza \nMall, Corky’s Barbeque, and a line of Parker car dealerships.  Claimant \nadmitted that in the past he has serviced the areas west of Little Rock first \nand then journeyed to Park Plaza Mall.  However, there is nothing in the \nrecord that states Claimant performed employment services in that order on \nthe date of the accident.  Claimant stated in the hearing that he serviced the \nplants at Park Plaza Mall and was journeying to Corkey’s Barbeque when \nthe accident occurred.  Further, a fellow co-worker, Teresa Bailey, testified \n\nGIVENS - H301211  20\n  \n \n \nat the hearing that Claimant would normally go to the Park Plaza Mall and \nthen to Corky’s Barbeque.  The Claimant presented as a credible witness in \nthe hearing and provided credible testimony that his work at Corky’s \nBarbeque was part of his normal job duties and a benefit to the \nRespondent.  \n Therefore, I believe Claimant was performing employment services \nat the time of the accident on December 15, 2022.  \n To 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 \nto the body which required medical services or resulted in disability or \ndeath;  (3) medical evidence supported by objective findings, as defined in \nArk. Code Ann. §11-9-102(16), establishing the injury; and  (4) that the \ninjury was caused by a specific and identifiable time and place of \noccurrence.  A compensable injury must be established by medical \nevidence supported by objective findings and medical opinions addressing \ncompensability must be stated within a degree of medical certainty.  Smith-\nBlair, Inc. v. Jones, 77 Ark. App. 273, 72 S.W.3d 560 (2002).  \n Claimant sustained a compensable injury to his right shoulder. \nClaimant was in a motor vehicle accident on December 15, 2022 in the \ncourse and scope of his employment.  Claimant was diagnosed with the \n\nGIVENS - H301211  21\n  \n \n \nobjective findings of a shoulder strain, and multiple tears in ligaments of the \nClaimant’s right shoulder as viewed by X-Ray and MRI.  This injury caused \ninternal or external harm to his body which required medical services in the \nform of injections and right rotator cuff tear surgery.  Further, Dr. \nChandrakanth opined that Claimant’s injuries resulted from the December \n15, 2022 motor vehicle accident by letter on February 13, 2023.  The \ncredible evidence supports the conclusion that this injury was caused by the \nmotor vehicle accident on December 15, 2022,  I would rule in favor of the \nClaimant as having sustained a compensable injury to his right shoulder.  \n Therefore, I would rule that the Claimant has proved by a \npreponderance of the evidence that he was performing employment \nservices for Respondent and sustained a compensable injury to his right \nshoulder.  \n For the foregoing reasons, I dissent with the majority opinion. \n \n \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner","preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H301211 WESLEY C. GIVENS, EMPLOYEE CLAIMANT J.E.L. ENTERPRISES, LLC, d/b/a PLANT SERVICES OF NORTH LITTLE ROCK, EMPLOYER RESPONDENT AUTO OWNERS INSURANCE COMPANY, INSURANCE CARRIER/TPA RESPONDENT","fetched_at":"2026-05-19T22:29:45.456Z","links":{"html":"/opinions/full_commission-H301211-2024-05-21","pdf":"https://labor.arkansas.gov/wp-content/uploads/Givens_Wesley_H301211_20240521.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/"}}