{"id":"full_commission-H401851-2025-02-11","awcc_number":"H401851","decision_date":"2025-02-11","opinion_type":"full_commission","claimant_name":"Gloria Tackett","employer_name":"Pinnacle Place Memory Care","title":"TACKETT VS. PINNACLE PLACE MEMORY CARE AWCC# H401851 February 11, 2025","outcome":"granted","outcome_keywords":["granted:6","denied:1"],"injury_keywords":["shoulder","rotator cuff","strain","lumbar","sprain"],"pdf_url":"https://www.labor.arkansas.gov/wp-content/uploads/Tackett_Gloria_H401851_20250211.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Tackett_Gloria_H401851_20250211.pdf","text_length":16229,"full_text":"NOT DESIGNATED FOR PUBLICATION \n \nBEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \nCLAIM NO. H401851 \n \nGLORIA YVONNE TACKETT, \nEMPLOYEE    CLAIMANT \n \nPINNACLE PLACE MEMORY CARE, \nEMPLOYER                                                                           RESPONDENT \n \nACCIDENT FUND INSURANCE COMPANY, \nCARRIER/TPA                                                                       RESPONDENT \n \nOPINION FILED FEBRUARY 11, 2025 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE GARY DAVIS, Attorney at Law, \nLittle Rock, Arkansas. \n \nRespondents represented by the HONORABLE JAMES A. ARNOLD, II, \nAttorney at Law, Fort Smith, Arkansas. \n \nDecision of Administrative Law Judge:  Affirmed and Adopted. \n \nOPINION AND ORDER \n Claimant appeals an opinion and order of the Administrative Law \nJudge filed September 9, 2024. In said order, the Administrative Law Judge \nmade the following findings of fact and conclusions of law: \n1. The Arkansas Workers’ Compensation Commission \nhas jurisdiction over this claim. \n \n2. The stipulations set forth above are reasonable and are \nhereby accepted. \n \n\nTackett-H401851   2  \n \n \n3. The Claimant has not proven by the preponderance of \nthe evidence that she sustained compensable injuries \nto her right shoulder by specific incident nor through \nthe course of employment.  \n \n4. Based on my finding that 1.) Claimant did not sustain \nan injury by specific incident, and 2.) nor did her injury \narise out of and through the course of employment, the \nremaining issues of reasonable and necessary medical \ntreatment, temporary total disability benefits, and a \ncontroverted attorney’s fee are moot and will not be \naddressed in this opinion. \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 September 9, 2024 decision of \nthe Administrative Law Judge, including all findings and conclusions \ntherein, as the decision of the Full Commission on appeal.  \n IT IS SO ORDERED. \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n     \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner \n  \n\nTackett-H401851   3  \n \n \nCommissioner Willhite dissents. \n \nDISSENTING OPINION \n  The Administrative Law Judge (hereinafter referred to as “ALJ”) found \nthat the Claimant had not proved by a preponderance of the evidence that \nshe sustained a compensable injury by specific incident nor through the \ncourse  of  employment  and  based  on  that  finding  the  Claimant  was  not \nentitled  to  reasonable  and  necessary  medical  treatment,  temporary  total \ndisability benefits or a controverted attorney fee.  After my de novo review, I \nwould concur in part and dissent in part with the ALJ’s findings.  I would rule \nin  favor  of  the  Claimant  sustaining  an  aggravation  of  her  pre-existing \ncondition through the course of her employment with the Respondent and \ntherefore that she is entitled to reasonable and necessary medical treatment \nof such injury. However, I would concur with the ALJ that the Claimant is not \nentitled to temporary total disability benefits as a result of her compensable \ninjury.  \n1. Claimant suffered a compensable aggravation to her pre-existing \nshoulder condition. \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 \n\nTackett-H401851   4  \n \n \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.  A \ncompensable injury must be established by medical evidence supported by \nobjective findings and medical opinions addressing compensability must be \nstated within a degree of medical certainty.  Smith-Blair, Inc. v. Jones, 77 \nArk. App. 273, 72 S.W.3d 560 (2002).  \nThe employer takes the employee as he finds him.  Conway \nConvalescent Center v. Murphree, 266 Ark. 985, 585 S.W.2d 462 (Ark. App. \n1979).  A pre-existing disease or infirmity does not disqualify a claim if the \nemployment aggravated, accelerated, or combined with the disease or \ninfirmity to produce the disability for which compensation is sought.  See, \nNashville Livestock Commission v. Cox, 302 Ark. 69, 787 S.W.2d 664 \n(1990); Conway Convalescent Center v. Murphree, 266 Ark. 985, 585 \nS.W.2d 462 (Ark. App. 1979); St. Vincent Medical Center v. Brown, 53 Ark. \nApp. 30, 917 S.W.2d 550 (1996).  An increase in symptoms of a pre-\nexisting degenerative condition is sufficient to establish a compensable \ninjury.  Parker v. Atlantic Research Corp., 87 Ark. App. 145, 189 S.W.3d 449 \n(2004). \n\nTackett-H401851   5  \n \n \nThe Claimant has a long history of symptomology and diagnoses for \nher right shoulder.  Claimant was diagnosed with right rotator cuff syndrome \nas early as 2005.  In 2005, the Claimant had an X-Ray of her shoulder \nwhich showed as essentially normal “with type 2 acromial spurring.”  For 11-\nyears Claimant did not seek treatment for her right shoulder.  On January \n25, 2016, Claimant suffered an injury at work when she caught a falling \nwooden medication box injuring her right arm and shoulder.  The Claimant \nwas subsequently diagnosed with a strain of her right levator scapulae \nmuscle on February 25, 2016.  Claimant undergoes an MRI on March 10, \n2016, which shows:  \n1. Near complete tear of the supraspinatus is seen with a few \nintact anterior leading fibers. The tear continues posteriorly \nwith the conjoined tendon and infraspinatus as a moderate \ngrade  articular  surface  tear  with  approximately  2.5  cm \nmedial retraction of the articular fibers. Minimal atrophy of \nthe supraspinatus and infraspinatus muscle fibers is seen.  \n2. There is a tear of the superior and articular fibers of the \ninfraspinatus without evidence of scrotal there is tear of the \nsuperior mid articular fibers of the subscapularis without \nsignificant tendon retraction. Degenerative changes of the \nlesser tuberosity is seen.  \n3. The intra-articular portion of the long head of the biceps \ntendon also appear significantly degenerated and torn with \nlongitudinal split tear extending into the vessel groove.  The \ntendon appears to reconstitute distally within the bicipital \ngroove and proximal arm.  Moderate biceps tenosynovitis is \nnoted.  \n4. Severe acromioclavicular degenerative changes are seen. \nModerate joint effusion is noted.  There is indentation of \nthe myotendinous fibers of the supraspinatus.  A large \namount of fluid is seen in the subacromial bursa.  \n\nTackett-H401851   6  \n \n \n \nOn April 4, 2017, the Claimant is diagnosed with a full thickness rotator cuff \ntear of her right shoulder and a partial-thickness rotator cuff tear of her left \nshoulder.  Dr. Samuel Moore recommends Claimant undergo a rotator cuff \nrepair surgery on the basis of diagnoses but does not specify which \nshoulder or if the surgery would be bilateral. On August 11, 2017, Claimant \nundergoes a left shoulder arthroscopy.  \n On December 25, 2023, Claimant was attacked by a patient while \nperforming employment services for Respondent.  Claimant presented to the \nemergency room of Baptist Health and was seen by Dr. Clinton Evans who \ndiagnoses her with a contusion or strain of her right shoulder and lumbar \nspine. Claimant was then referred to Clint Bearden, PA for evaluation of \nClaimant’s right shoulder.  Clint Bearden diagnoses the Claimant with a right \nrotator cuff tear and refers the Claimant for an MRI which showed:  \n1. Motion limited evaluation.  \n2. Complete full thickness tear of the supraspinatus tendon \nwith approximately 5.5 cm of retraction just proximal to the \nglenoid. This is technically age indeterminate, however \ngiven associated moderate supraspinatus muscular \natrophy, is suggestive of chronicity.  \n3. Complete full-thickness tear of the infraspinatus tendon \nwith approximately 5 cm of retraction. This is technically \nage indeterminate, however given associated severe \ninfraspinatus muscular atrophy, is suggestive of chronicity.  \n4. Mild  supcapularis  tendinosis  with  low-grade  partial \nthickness articular surface tear of the subscapularis tendon.  \n5. Tear with retraction of the long head of the biceps tendon.  \n\nTackett-H401851   7  \n \n \n6. Degenerative tears of the superior, anterior, and inferior \nlabrum. Probable 16 mm paralabral cyst adjacent to the \nanterior inferior labrum.  \n7. Severe degenerative arthrosis of the glenohumeral joint.  \n8. Small glenohumeral joint effusion.  \n9. Mild  to  moderate  degenerative  arthrosis  of  the \nacromioclavicular joint.  \n10. All  findings  are  age  indeterminate  unless  otherwise \nspecified.  \n \nBased  on  this  MRI,  the  Claimant  is  referred  to  Dr.  David  Gilliam  for \nevaluation.  This MRI visualizes a clear aggravation and progression of the \nobjective findings of an injury to the Claimant’s right shoulder including a  5.5 \ncm retraction of the supraspinatus tendon as compared to a 2.5 cm retraction \nvisualized in the 2016 MRI of Claimant’s right shoulder. On March 19, 2024, \nClaimant is seen by Dr. Gilliam who states that Claimant’s symptoms were \nexacerbated  by  her  December  25,  2023,  work  injury.    Dr.  Gilliam  also \nassesses the Claimant as having a recent rotator cuff sprain of her right \nshoulder in the context of chronic rotator cuff tears.  \n The Respondent then requested an independent medical evaluation \nof Claimant’s medical records by Dr. Theodore Hronas. Dr. Hronas opined:  \nIn  summary,  the  initial  MRI  exams  of  the  right  shoulder \ndemonstrate  evidence  of  a  tear  of  the  distal  supraspinatus \ntendon that progressed significantly in a short period of time, \nwith findings of complete tears of both the supraspinatus and \ninfraspinatus  tendons  on  3/29/2016.  The  most  recent  MRI \nexam  of  the  right  shoulder,  1/19/24,  demonstrates  severe \nosteoarthritic  change  of  the  right  glenohumeral  joint  with \nextensive  bone  remodeling  and  chronic  tears  and  severe \nmuscle atrophy of both the supraspinatus and infraspinatus \n\nTackett-H401851   8  \n \n \ntendons as described. This degree of osteoarthritic change and \nthe  chronic  tendon  tears  with  severe  muscle  atrophy  takes \nyears to develop. There is no reactive joint effusion, edema, or \nany objective findings of an acute or recent injury of the right \nshoulder. \nWhen  medical  opinions  conflict,  the  Commission  may  resolve  the \nconflict based on the record as a whole and reach the result consistent with \nreason, justice, and common sense.  Barksdale Lumber v. McAnally, 262 Ark. \n379, 557 S.W.2d 868 (1977).  It is within the Commission’s province to weigh \nall  of  the  medical  evidence  and  to  determine  what  is  most  credible.  \nMinnesota Mining & Mfg. v. Baker, 337 Ark. 94, 989 S.W.2d 151 (1999). \nBased on my review of the record, I find that Dr. Gilliam’s medical opinion \nshould be given more weight as he is an orthopedic physician, had personal \ncontact with the patient and extensively reviewed the Claimant’s current and \npast medical history in relation to her right shoulder.  \n A doctor is not required to be absolute in an opinion nor are the \nmagic words “within a reasonable degree of medical certainty” even \nrequired to be used by the doctor for an injury to be related to the work \naccident.  Freeman v. Con-Agra Frozen Foods, 344 Ark. 296 (2001).  \nRather, the medical opinion must simply be more than speculation. Id.  If a \ndoctor renders an opinion about causation of a workers’ compensation \ninjury with language that goes beyond possibilities and establishes that \nwork was the reasonable cause of the injury, this should pass muster. Id.  \n\nTackett-H401851   9  \n \n \nHere, Dr. Gilliam states that Claimant’s symptoms were exacerbated by the \nwork-incident on December 25, 2023, with an objective finding of a rotator \ncuff strain of her right shoulder.  \n Although Claimant clearly had objective evidence of an injury to her \nright shoulder prior to the work-incident, there is clear and credible evidence \nthat she suffered from an aggravation of the injury after the work accident on \nDecember 25, 2023.  The Courts have held in several cases that an increase \nin symptoms following a work-related accident is sufficient proof to establish \ncompensability.  Parker v. Atlantic Research Corp., 87 Ark. App. 145, 189 \nS.W.3d 449 (2004).  There was an objective change in the condition of \nClaimant’s right shoulder following her work accident and her authorized \nphysician opined that it was related to the December 25, 2023, work incident.  \nTherefore, I find that the Claimant has sustained a compensable injury to her \nright shoulder.  \n2. Claimant is entitled to reasonable and necessary medical care in the \nform of surgical intervention as recommended by Dr. Gilliam.  \n An employer shall promptly provide for an injured employee such \nmedical treatment as may be reasonably necessary in connection with the \ninjury received by the employee. Ark. Code Ann. § 11-9-508(a).  Reasonable \nand necessary medical services may include those necessary to accurately \ndiagnose the nature and extent of the compensable injury; to reduce or \n\nTackett-H401851   10  \n \n \nalleviate symptoms resulting from the compensable injury; or to maintain the \nlevel of healing achieved; or to prevent further deterioration of the damage \nproduced by the compensable injury.  Jordan v. Tyson Foods, Inc., 51 Ark. \nApp. 100, 911 S.W.2d 593 (1995).  \n Claimant has suffered a compensable injury to her right shoulder as a \nresult of the work-incident that took place on December 25, 2023.  Claimant \nis entitled to reasonable and necessary medical treatment in connection with \nthe  injury  received  by  the  employee.  To  date  Claimant  has  undergone \nconservative treatment in the form of physical therapy and injections without \nrelief. Based upon the lack of success with conservative care, I find that \nClaimant is also entitled to reasonable and necessary medical care in the \nform of surgical intervention as recommended by Dr. Gilliam.  \n3. Claimant is not entitled to temporary total disability benefits.  \nTemporary total disability benefits are appropriate where the employee \nremains in the healing period and is totally incapacitated from earning wages.  \nArk. State Highway Dep’t v. Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981).  \nThe Claimant has the burden of proof in showing that they remain in their \nhealing period and are totally incapacitated from earning wages. Id.  \nWhile Claimant may have remained in her healing period due to her \nongoing compensable injury to her right shoulder and was partially \n\nTackett-H401851   11  \n \n \nrestricted, she was not completely taken off of work by any physician in the \nrecord and was therefore not totally incapacitated from earning wages.  \n Therefore,  I  find  that  the  Claimant  suffered  a  compensable \naggravation to her right shoulder as a result of the work-incident that took \nplace on December 25, 2023 and is entitled to reasonable and necessary \nmedical treatment including surgical intervention by Dr. Gilliam.  However, I \ndo not find that Claimant is entitled to temporary total disability benefits as \nshe was not totally incapacitated from earning wages.  \n  For the reasons stated above, I respectfully dissent. \n                                                                                \n_________________________________ \n                                                             M. SCOTT WILLHITE, Commissioner","preview":"NOT DESIGNATED FOR PUBLICATION BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H401851 GLORIA YVONNE TACKETT, EMPLOYEE CLAIMANT PINNACLE PLACE MEMORY CARE, EMPLOYER RESPONDENT ACCIDENT FUND INSURANCE COMPANY, CARRIER/TPA RESPONDENT OPINION FILED FEBRUARY 11, 2025 Upon review before the FULL COMMISSION in...","fetched_at":"2026-05-19T22:29:44.593Z","links":{"html":"/opinions/full_commission-H401851-2025-02-11","pdf":"https://www.labor.arkansas.gov/wp-content/uploads/Tackett_Gloria_H401851_20250211.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/"}}