{"id":"full_commission-H304951-2025-03-07","awcc_number":"H304951","decision_date":"2025-03-07","opinion_type":"full_commission","claimant_name":"Robert Herdison","employer_name":"Drivers Select, Inc","title":"HERDISON VS. DRIVERS SELECT, INC. AWCC# H304951 March 7, 2025","outcome":"granted","outcome_keywords":["granted:3"],"injury_keywords":["cervical","thoracic","lumbar","back","neck","sprain"],"pdf_url":"https://www.labor.arkansas.gov/wp-content/uploads/Herdison_Robert_H304951_20250307.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Herdison_Robert_H304951_20250307.pdf","text_length":16945,"full_text":"NOT DESIGNATED FOR PUBLICATION \n \nBEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \nCLAIM NO. H304951 \n \nROBERT HERDISON, EMPLOYEE    CLAIMANT \n \n \nDRIVERS SELECT, INC., EMPLOYER                                 RESPONDENT \n \n \nQBE INSURANCE CORPORATION/ \nSEDGWICK CLAIMS MANAGEMENT  \nSERVICES, INC., CARRIER/TPA                                          RESPONDENT \n \n \nOPINION FILED MARCH 7, 2025 \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 KAREN H. McKINNEY, \nAttorney at Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Affirmed and Adopted. \n \n \nOPINION AND ORDER \n Claimant appeals an opinion and order of the Administrative Law \nJudge filed October 2, 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 the pre-\nhearing conference conducted on April 29, 2024, and \ncontained in a Pre-hearing Order filed April 30, 2024, \nare hereby accepted as fact. \n  \n\nHerdison-H304951    2  \n \n \n2. The claimant has failed to prove by a preponderance of \nthe evidence that he sustained compensable injuries to \nhis cervical, thoracic and lumbar spine on or about \nJune 22, 2023.  \n \n3. The claimant has failed to prove by a preponderance of \nthe evidence that he is entitled to medical treatment for \nhis alleged compensable cervical, thoracic and lumbar \nspine injuries.  \n \n4. The claimant has failed to prove by a preponderance of \nthe evidence that he is entitled to temporary total \ndisability benefits from June 23, 2023, to a date yet to \nbe determined.  \n \n5. The claimant has failed to prove by a preponderance of \nthe evidence that his attorney is entitled to an \nattorney’s fee in this matter. \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 the findings of fact made by the Administrative Law Judge \nare correct and they are, therefore, adopted by the Full Commission.  \n Therefore, we affirm and adopt the October 2, 2024 decision of the \nAdministrative Law Judge, including all findings and conclusions therein, as \nthe decision of the Full Commission on appeal.  \n  \n\nHerdison-H304951    3  \n \n \n IT IS SO ORDERED. \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n     \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner \n \n \n \nCommissioner Willhite dissents. \n \nDISSENTING OPINION \n The Administrative Law Judge (hereinafter referred to as “ALJ”) found \nthat the Claimant failed to prove by a preponderance of the evidence that he \nsustained compensable injuries to his cervical, thoracic, and lumbar spine on or \nabout June 22, 2023, that the Claimant failed to prove by a preponderance of \nthe evidence that he is entitled to medical treatment for his alleged injuries, and \nthat the Claimant failed to prove by a preponderance of the evidence that he is \nentitled to temporary total disability benefits from June 23, 2023, to a date yet to \nbe determined.  Lastly, the ALJ found that the Claimant failed to prove by a \npreponderance of the evidence that his attorney is entitled to an attorney’s fee \nin this matter.  After conducting a thorough review of the record, I would reverse \nthe ALJ’s findings as to the Claimant’s compensable injuries to his cervical, \nthoracic, and lumbar spine and find that he is entitled to medical treatment for \n\nHerdison-H304951    4  \n \n \nhis compensable injuries, and entitled to temporary total disability from \nNovember 18, 2023 to a date yet to be determined.  \n1. Claimant has suffered compensable work-related injuries to his \ncervical, thoracic and lumbar spine on or about June 22, 2023.  \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 \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 injury \nwas caused by a specific and identifiable time and place of occurrence.  \nThe central question in this case is whether the Claimant’s injury \narose in the course and scope of his employment with the Respondent.  A \ncompensable injury does not include an injury “inflicted upon the employee \nat a time when employment services were not being performed.”  Ark. Code \nAnn. § 11-9-102(4)(B)(iii).  An employee is performing employment services \nwhen he is doing something that is generally required by his employer.  \nDairy Farmers of America v. Coker, 98 Ark. App. 400, 255 S.W.3d 905.  \nThe Arkansas Court of Appeals uses the same test to determine whether \nan employee is performing employment services as it does when \n\nHerdison-H304951    5  \n \n \ndetermining whether an employee is acting within the course and scope of \nemployment.  Pifer v. Single Source Transp., 347 Ark. 851, 69 S.W.3d 1 \n(2002).  The test is whether the injury occurred within the time and space \nboundaries of the employment when the employee was carrying out the \nemployer’s purpose directly or indirectly.  Id.  \nAn employee traveling to and from the workplace is generally said \nnot to be acting within the course and scope of employment.  Olsten \nKimberly Quality Care v. Pettey, 328 Ark. 381, 944 S.W.2d 524 (1997).  \nThis “going and coming” rule ordinarily precludes recovery for an injury \nsustained while the employee’s going to or coming from his place of \nemployment. Id.  The rationale behind this rule is that an employee is not \nwithin the course of employment while traveling to or from his job. Id.  \nHowever, an exception to this rule exists where the employee must travel \nfrom jobsite to jobsite, whether or not he is paid for that travel time. Id.  The \nrationale behind this exception is that such travel is an integral part of the \njob itself. Id.  Even where a Claimant is not performing his primary \nemployment activity, an injury may be deemed compensable if the Claimant \nis fulfilling a duty placed upon him by their employer.  Moncus v. Billingsley \nLogging, 366 Ark. 383, 235 S.W.3d 877 (2006).  \nRespondent employee, Abigail Robertson testified that she texted \nClaimant and another Respondent employee about a job to pick-up a truck \n\nHerdison-H304951    6  \n \n \nat MHC Kenworth in Van Buren and drive it to Rogers on June 22, 2023.  \nThe Claimant had the option to take his personal vehicle to Van Buren and \nhave another employee carpool with him, or vice versa.  The Claimant and \nanother employee decided to take the other employee’s vehicle.  Claimant \nand the other employee travelled from Fort Smith to Van Buren, picked the \ntruck up and drove it to Rogers.  After completing the Respondent’s jobs, \nClaimant testified that they then travelled back to the Respondent’s offices \nin Fort Smith to check-in with their supervisor, return paperwork, and pick-\nup his personal vehicle to return home.  While travelling back to the \nRespondent’s Fort Smith office the Claimant and the other employee of \nRespondent were in a car accident. \nClaimant’s testimony that he was travelling back to the Respondent’s \noffices in Fort Smith to check-in with his supervisor, return paperwork and \npick up his personal vehicle is credible as he may have genuinely believed \nthat was required for this specific job as there were no clearly established \nprocedures by Respondent’s witnesses’ own testimony.  Further, it is \napparent that traveling was an integral part of the Claimant’s position with \nthe Respondent at the time of the accident.  See Olsten v. Pettey, 328 Ark. \n381, 944 (1997).  While the necessity of this trip is unclear, Claimant was \nclearly fulfilling a duty placed upon him by the Respondent at the time of his \naccident as he was generally required to return paperwork and check-in \n\nHerdison-H304951    7  \n \n \nwith his supervisor at the end of a job.  Respondent employee Jennifer \nPowell testified that not all jobs start and stop at the Respondent’s Fort \nSmith office and that every bid/job is different.  Based on the testimony of \nboth Respondent witnesses, I find it credible that the Claimant was \nreturning to the Respondent’s offices in Fort Smith as generally required \nand not prohibited by the Respondent, and therefore performing \nemployment services.  Based upon the credible evidence, I find that the \nClaimant was performing employment services at the time of the accident \nand was within the course and scope of his employment when the accident \noccurred.  \nNext, the Claimant must prove by a preponderance of the evidence \nthat the injuries he suffered caused internal or external harm to the body \nwhich required medical services, that the medical evidence is supported by \nobjective findings establishing the injury; and that the injury was caused by \na specific and identifiable time and place of occurrence.  On June 22, 2023, \nClaimant sought medical treatment for his injuries related to the motor \nvehicle accident.  Claimant stated that he had complaints of pain to his \nhead, cervical neck pain and thoracic pain. X-Rays were obtained, but no \nfractures or dislocations were apparent.  Claimant then followed up with Dr. \nChester Carlson who diagnosed the Claimant with a sprain of his cervical, \nthoracic and lumbar spine and muscle spasms at each of these three areas \n\nHerdison-H304951    8  \n \n \nof the spine.  Dr. Carlson recommended and performed several trigger-\npoint injections for these muscle spasms and pain associated with the \nClaimant’s sprain of his cervical, thoracic and lumbar spine.  On July 24, \n2023, Claimant underwent a Cervical, Lumbar, and Thoracic Spine MRI \nwhich showed disc bulges and spurring of the C4-C5, C5-C6, C6-C7, L3-\nL4, L4-L5, T7-T8, T8-T9, and T9-T10.  Claimant continued treatment with \nDr. Carlson and on October 4, 2023, Dr. Carlson referred Claimant to \nneurologist Dr. Sean Moore stating:  \nI will release this patient from my care today.  The patient has \nreached the maximum medical benefit of my treatment plan at this \ntime.  However, this patient still has ongoing pain due to this accident \nand will likely require medical treatment for this problem in the future. \n \nOn October 24, 2023, Claimant was seen by Dr. Moore who \nevaluated the MRI from July 24, 2023, stating:  \nThe patient has an MRI of the cervical, lumbar and thoracic spine \nfrom 7/24/23. The thoracic MRI shows small disc bulges at T7-8, T8-\n9, and T9-10 with minimal central stenosis.  There is mild neural \nforaminal stenosis at T8-9.  There is no abnormal cord signal on T2-\nweighted images.  The cervical MRI shows a mild disc bulge at C4-5. \nThere is a central disc herniation at C5-6 and left paracentral \nherniation at C6-7.  There is minimal stenosis at C4-5.  There is \nsevere canal stenosis at C5-6 with abnormal T2-weighted signal \nwithin the spinal cord.  There is moderate central and left neural \nforaminal stenosis at C6-7.  The alignment is otherwise normal.  The \nlumbar MRI shows spondylolisthesis at L3-4.  There is moderate \ncentral and neural foraminal stenosis at this segment.  There is mild \ndisc bulging at L4-5 with minimal stenosis.  There is mild disc bulging \nat L5-S1 without significant stenosis.  There is mild facet arthropathy.  \nThe alignment is otherwise normal.  \n\nHerdison-H304951    9  \n \n \nDr. Moore then diagnosed Claimant with cervical stenosis/HNP with \nsevere radiculopathy and myelopathy, lumbar stenosis/spondylolisthesis \nwith radiculopathy, neurogenic claudication, as a result of the June 22, \n2023 motor vehicle accident.  Dr. Moore then recommended surgical \nintervention for the Claimant’s cervical stenosis secondary to his severe \nand progressive neurologic deficits.  On November 18, 2023, Claimant \nreceived an anterior cervical microdiscectomy and fusion at C5-6 and C6-7 \nfor spinal cord decompression.  At stated earlier, Claimant also received \ninjections for muscle spasms at the thoracic and lumbar levels of his spine.  \nBased upon the credible proof in the record, I find that Claimant sustained \ncompensable injuries to his cervical, thoracic and lumbar spine as a result \nof his June 22, 2023 work accident.  \n2. The Claimant is entitled to medical treatment for his compensable \nwork-related injuries to his cervical, thoracic, and lumbar spine.  \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).  The \nclaimant bears the burden of proving that she is entitled to additional \nmedical treatment.  Dalton v. Allen Eng’g Co., 66 Ark. App. 201, 989 \nS.W.2d 543 (1999).  What constitutes reasonable and necessary medical \ntreatment is a question of fact for the Commission.  White Consolidated \n\nHerdison-H304951    10  \n \n \nIndus. v. Galloway, 74 Ark. App. 13, 45 S.W.3d 396 (2001); Wackenhut \nCorp. v. Jones, 73 Ark. App. 158, 40 S.W.3d 333 (2001).  \nThe Arkansas Court of Appeals has held a claimant may be entitled \nto additional medical treatment even after the healing period has ended, if \nsaid treatment is geared toward management of the injury.  See Patchell v. \nWal-Mart Stores, Inc., 86 Ark. App. 230, 184 S.W.3d 31 (2004); Artex \nHydrophonics, Inc. v. Pippin, 8 Ark. App. 200, 649 S.W.2d 845 (1983).  \nSuch services can include those for the purpose of diagnosing the nature \nand extent of the compensable injury; reducing or alleviating symptoms \nresulting from the compensable injury; maintaining the level of healing \nachieved; or preventing further deterioration of the damage produced by the \ncompensable injury.  Jordan v. Tyson Foods, Inc., 51 Ark. App. 100, 911 \nS.W.2d 593 (1995); Artex, supra. \n In the present case, Claimant sustained compensable injuries \nto his cervical, thoracic and lumbar spine.  Diagnostic testing performed on \nJuly 24, 2023, demonstrated objective problems at the cervical, thoracic, \nand lumbar areas of the Claimant’s spine.  Muscle spasms were also \nobserved and treated in the Claimant’s upper and mid-back areas.  The \nClaimant also reported suffering bowel incontinence and radiculopathy.  \n\nHerdison-H304951    11  \n \n \nOn October 4, 2023, Dr. Chester Carlson placed Claimant at \nmaximum medical improvement stating:  \nI will release this patient from my care today.  The patient has \nreached the maximum medical benefit of my treatment plan at this \ntime.  However, this patient still has ongoing pain due to his accident \nand will likely require medical treatment for this problem in the future.  \nDr. Carlson then referred the Claimant to neurosurgeon Dr. Shawn \nMoore for evaluation and treatment.  Claimant was seen by Dr. Moore on \nOctober 24, 2023.  Dr. Moore recommended surgical intervention for his \ncervical stenosis secondary to his severe and progressive neurologic \ndeficits.  Claimant underwent an anterior cervical microdiscectomy and \nfusion at C5-6 and C6-7 for spinal cord decompression for his compensable \ncervical injury on November 18, 2023.  \n Based upon the credible evidence, I find that the Claimant is \nentitled to reasonable and necessary medical treatment for the \ncompensable injuries to his spine including surgery for his compensable \ncervical injury.  \n3. Claimant is entitled to temporary total disability benefits from \nNovember 18, 2023 to a date yet to be determined.  \nTemporary total disability benefits are appropriate where the \nemployee remains in the healing period and is totally incapacitated from \n\nHerdison-H304951    12  \n \n \nearning wages.  Ark. State Highway Dep’t v. Breshears, 272 Ark. 244, 613 \nS.W.2d 392 (1981). \nClaimant underwent surgery for his compensable cervical injury on \nNovember 18, 2023.  While no explicit medical testimony regarding the \nclaimant’s ability to work is presented within the record, it is certainly more \nprobable that such an invasive surgery would warrant time off work where \nClaimant is totally incapacitated from earning wages.  I find that Claimant is \nentitled to temporary total disability benefits from November 18, 2023, until \nsuch a date as the Claimant is released from care from his authorized \nphysician. \nFor the reasons stated above, I respectfully dissent. \n                                                                                                \n______________________________                                                            \nM. SCOTT WILLHITE, Commissioner","preview":"NOT DESIGNATED FOR PUBLICATION BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H304951 ROBERT HERDISON, EMPLOYEE CLAIMANT DRIVERS SELECT, INC., EMPLOYER RESPONDENT QBE INSURANCE CORPORATION/ SEDGWICK CLAIMS MANAGEMENT SERVICES, INC., CARRIER/TPA RESPONDENT OPINION FILED MARCH 7, 2025 Upon review before t...","fetched_at":"2026-05-19T22:29:44.490Z","links":{"html":"/opinions/full_commission-H304951-2025-03-07","pdf":"https://www.labor.arkansas.gov/wp-content/uploads/Herdison_Robert_H304951_20250307.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/"}}