Mary Ginther vs. Emerson Electric Company

BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H303571 MARY M. GINTHER, EMPLOYEE CLAIMANT EMERSON ELECTRIC COMPANY, EMPLOYER RESPONDENT OLD REPUBLIC INSURANCE COMPANY, MITCHELL, WILLIAMS, SELIG, GATES AND WOODYARD, P.L.L.C., INSURANCE CARRIER/TPA RESPONDENT OPINION FILED APRIL 9, 2025 Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas. Claimant represented by the HONORABLE SCOTT HUNTER, JR., Attorney at Law, Jonesboro, Arkansas. Respondents represented by the HONORABLE RICHARD N. DODSON, Attorney at Law, Texarkana, Texas. Decision of Administrative Law Judge: Affirmed as Modified. OPINION AND ORDER The respondents appeal an administrative law judge’s opinion filed October 1, 2024. The administrative law judge found that the claimant proved she sustained a compensable injury. The administrative law judge awarded medical treatment and a period of temporary total disability benefits. After reviewing the entire record de novo, the Full Commission finds that the claimant proved by a preponderance of the evidence that she sustained a compensable injury. We find that the claimant proved she was

GINTHER - H303571 2 entitled to temporary total disability benefits and reasonably necessary medical treatment. I. HISTORY Mary Ginther, now age 35, testified that she became employed with the respondents, Emerson Electric Company, in October 2022. Ms. Ginther testified that her job title was “Paint Technician.” The claimant testified on direct examination: Q. And we’re here today because of an alleged job injury on February 15, 2023, is that right? A. Correct. Q. And can you please explain to the Court what happened on that day? A. I was working on the Paint Line, and we were doing the 1000 Jack Stand Challenge, which meant we have to have 1000 jack stands completed within that month. That means it had to be welded, painted, packed, and shipped out within that month. So I was loading and unloading jack stands from the line, and then I heard a loud popping in my right shoulder, and I had instant pain in my right shoulder down my right arm, my forearm.... Q. Were you working with anyone, by yourself when you were working with these jack stands? A. No. Paige Jones was working on the line with me.... Q. As far as after the injury, did you – did you let anybody, a supervisor or anyone, know of the injury? A. The Operations Manager, Annie Stigall. She kind of was walking up to the Paint Line kind of seeing I was holding my arm, asked me what happened, and then she told me I needed to go fill out an Incident Report.... Q. Where did you go to fill out the Incident Report? A. I went to Joe B. I can’t pronounce his last name, so I apologize. He was the Safety Coordinator at that time, and he told me to fill out an Incident Report, so I took the Report, filled it out, I had Paige Jones look over it, and then she

GINTHER - H303571 3 signed it as a witness, and I gave it back to Joe that same day. The claimant’s attorney examined Paige Jones: Q. And where do you work? A. Emerson Electric.... Q. Did you ever work directly with Mary Ginther? A. Yes, sir. Q. Specifically on February 15, 2023, do you – do you remember if you were working in close proximity to Mary Ginther? A. Yes, sir....We were working side by side hanging jack stands while other people were pulling parts off the line.... Q. On that date, do you remember anything happening to Ms. Ginther’s physical condition while she was working? A. It was a normal day at first, and then we were hanging the jack stands, you heard a pop and her arm – and her arm went limp. Q. So you were – y’all were sitting there working, you heard this pop. I guess it attracted your attention? A. Yes. I looked at her and I asked what had happened. Q. What did she tell you? A. She wasn’t sure as to what had fully happened at that current moment. She just knew that her arm got hurt. According to the record, the claimant filled out an “Emerson Professional Tools MFG Incident Report” on February 15, 2023. The claimant wrote that the event occurred at 9:00 a.m. on February 15, 2023 and that the location was “Ashflat Paint Line.” The claimant reported that Paige Jones witnessed the incident. The claimant described the injury as “Right bicept/shoulder (sic).” The claimant wrote on the “Incident Report,” “I was pulling parts off the line, heard my right shoulder pop and have had pain in my forearm, bicep and shoulder since.”

GINTHER - H303571 4 The claimant testified that she returned to restricted work for the respondents following the specific incident, but that the condition of her right arm progressively worsened. The claimant agreed on cross-examination that she continued to work for three months. The claimant testified that the respondent-employer’s Safety Coordinator eventually directed her to treat with Dr. Terry Burns. Dr. Burns examined the claimant on May 5, 2023: Pt complaining of Rt shoulder pain off and on since 2/15/23. Pt describes pain as burning, achy, constant, and worsens with certain movements along with some weakness. She denies any specific fall or injury but does say she does a lot of repetitive lifting at work....Has been using Biofreeze, meloxicam/ibuprofen, applying wraps and ice/heat. Alicia Justice testified that she was the respondent-employer’s “HR Business Partner.” Ms. Justice testified that the respondents paid for the claimant’s May 5, 2023 treatment with Dr. Burns. The claimant was treated at WRMC Orthopaedic and Sports Medicine Clinic on June 20, 2023. An LPN assessed “(1) Tear of distal tendon of biceps” and “(2) Right shoulder pain....MRI reviewed with patient. Discussed right elbow distal biceps repair since injury was in Feb 2023 and has had no relief. No shoulder derangement seen on MRI.” The LPN also reported, “Today’s visit related to an accident/injury?: Yes. Date of Accident/Injury: 02/15/23 (LOADING PARTS ONTO LINE ABOVE HEAD, FELT/HEARD POPPING).”

GINTHER - H303571 5 Dr. Dylan Carpenter’s diagnosis on June 20, 2023 was “Tear of distal tendon of biceps” and “Right shoulder pain.” Dr. Carpenter performed a “Right distal biceps repair” on June 28, 2023. The claimant testified that Dr. Carpenter arranged follow-up treatment after surgery, which treatment included physical therapy. The claimant testified on direct examination: Q. And it looks like you missed some work at Emerson due to the surgery and the rehab, is that right? A. Correct. Q. Approximately how long did you – did you miss work? A. For the surgery, I missed three weeks. Dr. Carpenter reported on July 18, 2023 that the claimant could return to work on July 24, 2023. Dr. Carpenter assigned work limitations of “light duty, no lifting over 5 lbs, no over head work.” The claimant testified that she returned to work for the respondents. A pre-hearing order was filed on May 7, 2024. The claimant contended, “The Claimant contends that her position is the paint line as a paint tech, but she is often required to do other positions within Emerson Electric that are outside of her job description. On the date of injury the Claimant was being required to load and unload jack stands for the ‘1000 jack challenge’ for the month. As she was lifting a jack, she felt a pop and had immediate shooting pain, reported the injury and filled out an incident report.”

GINTHER - H303571 6 The parties stipulated that the respondents “have controverted this matter in its entirety.” The respondents contended, “The Employer controverts the claim. The Claimant has not and cannot establish by a preponderance of the evidence that she sustained a compensable injury during the course and scope of her employment. The medical records obtained to date do not establish an injury within the course and scope of the Claimant’s employment.” The parties agreed to litigate the following issues: 1. Compensability of a right arm injury. 2. Reasonable and necessary medical treatment. 3. TTD from February 15, 2023, to a date to be determined. 4. Attorney’s fees. 5. All other issues are reserved, including PPD. After a hearing, an administrative law judge filed an opinion on October 1, 2024. The administrative law judge found that the claimant proved she sustained a compensable injury. The administrative law judge awarded medical treatment and a period of temporary total disability benefits. The respondents appeal to the Full Commission. II. ADJUDICATION A. Compensability Ark. Code Ann. §11-9-102(4)(Repl. 2012) provides, in pertinent part: (A) “Compensable injury” means:

GINTHER - H303571 7 (i) An accidental injury causing internal or external physical harm to the body ... arising out of and in the course of employment and which requires medical services or results in disability or death. An injury is "accidental” only if it is caused by a specific incident and is identifiable by time and place of occurrence[.] A compensable injury must also be established by medical evidence supported by objective findings. Ark. Code Ann. §11-9-102(4)(D)(Repl. 2012). “Objective findings” are those findings which cannot come under the voluntary control of the patient. Ark. Code Ann. §11-9-102(16)(A)(i)(Repl. 2012). The requirement that a compensable injury must be established by medical evidence supported by objective findings applies only to the existence and extent of the injury. Stephens Truck Lines v. Millican, 58 Ark. App. 275, 950 S.W.2d 472 (1997). The employee has the burden of proving by a preponderance of the evidence that she sustained a compensable injury. Ark. Code Ann. §11-9- 102(4)(E)(i)(Repl. 2012). Preponderance of the evidence means the evidence having greater weight or convincing force. Metropolitan Nat’l Bank v. La Sher Oil Co., 81 Ark. App. 269, 101 S.W.3d 252 (2003). An administrative law judge found in the present matter, “3. The claimant has satisfied the required burden of proof to show that she sustained a compensable, work-related injury to her right arm on February

GINTHER - H303571 8 15, 2023.” The Full Commission finds that the claimant proved by a preponderance of the evidence that she sustained a compensable injury. The claimant testified that she became employed with the respondents in October 2022. The claimant’s job title for the respondent- employer was “Paint Technician.” The claimant testified that she was working on the respondents’ Paint Line on February 15, 2023. The claimant testified that she heard a loud “popping” and pain while unloading a jack stand. A co-worker on February 15, 2023, Paige Jones, testified that she heard a “pop” and that the claimant’s arm “went limp.” The claimant testified that the respondent-employer’s Safety Coordinator directed her to fill out an Incident Report, and the claimant indeed filled out such a Report on February 15, 2023. The Incident Report, which was included of record, corroborated the claimant’s testimony at hearing. The claimant wrote on the Incident Report that she heard a “pop” in her right shoulder and that she immediately began suffering from pain in her right forearm and bicep. The respondents state on appeal that the “noise on the production floor” precluded the claimant or Paige Jones from hearing a “pop” on February 15, 2023. Nevertheless, the Full Commission finds that the probative evidence of record corroborates the testimony of the claimant and Paige Jones.

GINTHER - H303571 9 As we have discussed, the claimant testified that the respondent- employer’s Safety Coordinator eventually directed her to seek treatment with Dr. Terry Burns. Dr. Burns saw the claimant on May 5, 2023 and purported to state that the claimant did not have a “specific fall or injury,” but he also noted that the claimant had been suffering with pain since the date of the work-related accidental injury, February 15, 2023. A representative of the respondent-employer, Alicia Justice, testified that the respondents paid for the claimant’s May 5, 2023 visit with Dr. Burns. The claimant was examined at WRMC Orthopaedic and Sports Medicine Clinic on June 20, 2023. It was plainly noted at that time that the claimant had been suffering from pain since the accidental injury which occurred on February 15, 2023. Dr. Carpenter’s diagnosis on June 20, 2023 was “Tear of distal tendon of biceps” and “Right shoulder pain.” Dr. Carpenter performed a “Right distal biceps repair” on June 28, 2023. In workers’ compensation cases, the Commission functions as the trier of fact. Blevins v. Safeway Stores, 25 Ark. App. 297, 757 S.W.2d 569 (1988). The Commission is not required to believe the testimony of the claimant or any other witness but may accept and translate into findings of fact only those portions of the testimony it deems worthy of belief. Farmers Co-op v. Biles, 77 Ark. App. 1, 69 S.W.3d 899 (2002). The Full Commission finds in the present matter that the claimant was a credible

GINTHER - H303571 10 witness. The claimant proved by a preponderance of the evidence that she sustained a compensable injury in accordance with Ark. Code Ann. §11-9- 102(4)(A)(i)(Repl. 2012). The claimant proved that she sustained an accidental injury causing physical harm to the body, that is, the claimant’s right arm. The claimant proved that the injury arose out of and in the course of employment, required medical services, and resulted in disability. The injury was caused by a specific incident and was identifiable by time and place of occurrence on February 15, 2023. The claimant also established a compensable injury by medical evidence supported by objective findings, namely, Dr. Carpenter’s diagnosis of “Tear of distal tendon of biceps.” The Full Commission finds that the “Tear of distal tendon of biceps” was causally related to the February 15, 2023 accidental injury. B. Temporary Disability The standard for determining entitlement to temporary total disability benefits differs depending on whether the injury is a scheduled injury or an unscheduled injury. Lawless v. AT&T Tech. Servs. Co., 2025 Ark. App. 67, CV-24-289 (Ark. App. Feb. 05, 2025), citing City of Fort Smith v. Kaylor, 2019 Ark. App. 517, 588 S.W.3d 803. The claimant in the present matter sustained a compensable scheduled injury to her right arm on February 15, 2023. For scheduled injuries the injured employee is to receive

GINTHER - H303571 11 compensation for temporary total disability during the healing period or until she returns to work, whichever occurs first. Ark. Code Ann. §11-9- 521(a)(Repl. 2012); Wheeler Constr. Co. v. Armstrong, 73 Ark. App. 146, 41 S.W.3d 822 (2001). An incapacity to earn wages is presumed when a claimant has sustained a compensable scheduled injury. Minnesota Min. & Mfg. v. Baker, 337 Ark. 94, 989 S.W.2d 151 (1999). The healing period is that period for healing of the injury which continues until the employee is as far restored as the permanent character of the injury will permit. Nix v. Wilson World Hotel, 46 Ark. App. 303, 879 S.W.2d 457 (1994). Whether an employee’s healing period has ended is a question of fact for the Commission. Ketcher Roofing Co. v. Johnson, 50 Ark. App. 63, 901 S.W.2d 25 (1995). An administrative law judge found in the present matter, “5. The claimant has satisfied the required burden of proof to show that she is entitled to TTD for a period of three weeks, one day.” The administrative law judge cited as authority a well-known case related to unscheduled injuries, Ark. State Hwy. Dept. v. Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981). The administrative law judge therefore erred as a matter of law. Lawless, supra. Nevertheless, the Full Commission has the duty to decide the case de novo and we are not bound by the characterization of evidence

GINTHER - H303571 12 adopted by an administrative law judge. Tyson Foods, Inc. v. Watkins, 37 Ark. App. 230, 792 S.W.2d 348 (1990). The Full Commission reiterates in the present matter that the claimant sustained a compensable scheduled injury on February 15, 2023. Although the evidence demonstrates that she entered a healing period beginning February 15, 2023, the claimant initially returned to work for the respondents following the compensable injury. The medical records indicate that Dr. Carpenter performed a “Right distal biceps repair” on June 28, 2023. The claimant testified that she was unable to work beginning the date of surgery. The evidence therefore demonstrates that the claimant remained within a healing period and did not return to work beginning June 28, 2023. Dr. Carpenter noted on July 18, 2023 that the claimant could return to restricted work beginning July 24, 2023. The claimant testified that she returned to work for the respondents, where the claimant remains gainfully employed. The claimant therefore proved that she was entitled to temporary total disability benefits beginning June 28, 2023 until July 24, 2023. See Armstrong, supra. After reviewing the entire record de novo, the Full Commission finds that the claimant proved she sustained a compensable scheduled injury on February 15, 2023. The claimant proved that she was entitled to temporary total disability benefits beginning June 28, 2023 and continuing until July

GINTHER - H303571 13 24, 2023. The claimant proved that the medical treatment of record following the compensable injury, including surgery performed by Dr. Carpenter, was reasonably necessary in connection with Ark. Code Ann. §11-9-508(a)(Repl. 2012). The claimant’s attorney is entitled to fees for legal services in accordance with Ark. Code Ann. §11-9-715(a)(Repl. 2012). For prevailing on appeal to the Full Commission, the claimant’s attorney is entitled to an additional fee of five hundred dollars ($500), pursuant to Ark. Code Ann. §11-9-715(b)(Repl. 2012). IT IS SO ORDERED. ___________________________________ SCOTTY DALE DOUTHIT, Chairman ___________________________________ M. SCOTT WILLHITE, Commissioner Commissioner Mayton dissents. DISSENTING OPINION I must respectfully dissent from the majority’s opinion. In my de novo review of the record, I find that the claimant has failed to meet her burden of proof she suffered a compensable injury to her right shoulder on February 15, 2023. The claimant alleged she was injured while working for the respondent employer on February 15, 2023, “loading and unloading jack

GINTHER - H303571 14 stands from the line and then I heard a loud popping in my right shoulder, and I had an instant pain in my right shoulder and down my right arm, my forearm.” The claimant completed an incident report, which was given to the safety coordinator, and the claimant returned to work. Three months later, the claimant was treated by Dr. Terry Burns for a workers’ compensation evaluation. Dr. Burns referred the claimant to Dr. Dylan Carpenter, who performed surgery on the claimant’s right upper extremity. The respondent’s carrier denied and controverted this claim. After a hearing, an administrative law judge (ALJ) determined that the claimant satisfied her burden of proving she suffered a compensable injury to her right upper extremity. Generally, a specific incident injury is an accidental injury arising out of the course and scope of employment caused by a specific incident identifiable by time and place of an occurrence. Ark. Code Ann. § 11-9- 102(4)(A)(i). This requires a claimant establish by a preponderance of the evidence: (1) an injury arising out of and in the course of employment; (2) that the injury caused internal or external physical harm to the body which required medical services or resulted in disability or death; (3) medical evidence supported by objective findings establishing an injury as defined in Ark. Code Ann. §11-9-102(16) and; (4) that the injury was caused by a

GINTHER - H303571 15 specific incident identifiable by time and place of occurrence. Ark. Code Ann. § 11-9-102(4)(A)(i). A compensable injury must be established by medical evidence supported by "objective findings." Ark. Code Ann. § 11-9-102(4)(D). Objective findings cannot come under the voluntary control of the patient. Ark. Code Ann. § 11-9-102(16). It is within the Commission's province to weigh all the medical evidence, to determine what is most credible, and to determine its medical soundness and probative force. Sheridan Sch. Dist. v. Wise, 2021 Ark. App. 459, 637 S.W.3d 280 (2021). In weighing the evidence, the Commission may not arbitrarily disregard medical evidence or the testimony of any witness. Id. The Commission is not required to believe the testimony of the claimant or any other witness but may accept and translate into findings of fact only those portions of the testimony that it deems worthy of belief. White v. Gregg Agricultural Enterprises, 72 Ark. App. 309, 37 S.W.3d 649 (2001). I find the claimant’s testimony is inconsistent and unreliable. The claimant has consistently provided misleading information regarding her claim. The claimant and her coworker, Paige Jones, assert that they heard the claimant’s shoulder pop while on the production line floor. However, the

GINTHER - H303571 16 employer facility is a 220,000 square foot facility that is made up, essentially, of one large room. During the claimant’s shift, there are typically around 135 workers on the production floor. The paint line is loud for a variety of reasons: Compressors power the paint guns; there are two nearby blasting cabinets where parts are sprayed with glass beads and other abrasive materials; workers operate power grinders; a large tumbler with abrasive beads shakes and vibrates parts to clean them; and there are at least five forklifts in the building which honk and beep as they move. Hearing protection is provided to the workers and in these areas, and employees have to raise their voices to be heard. It strains credulity to believe the claimant and Ms. Jones were able to hear a pop from the claimant’s arm or shoulder with the elevated noise in the facility. In addition, Ms. Jones was two and a half to three feet away from the claimant. This is also evidenced by the claimant’s inconsistent statements regarding the location of the pop. At the hearing, both the claimant and Ms. Jones testified they heard the claimant’s shoulder pop while on the production floor. This was confirmed in the incident report. However, when she was deposed on December 4, 2023, the claimant testified she heard a pop near her elbow and the inside of her right arm. In addition, the claimant did not report a popping sound to Dr. Terry Burns at her initial appointment on May 5, 2023.

GINTHER - H303571 17 For these reasons, it is clear that the claimant’s inconsistent testimony fails to meet her burden of proving that she suffered a specific incident injury on February 15, 2023. Further, the claimant has been inconsistent in her testimony about whether she was working alone or with Ms. Jones at the time of her injury. In her deposition, the claimant testified that Ms. Jones was “helping me load the jack; however, at the hearing, claimant testified that she was loading the jack by herself without assistance. These inconsistencies can also be found in the claimant’s medical records. The claimant admitted at the hearing that Dr. Burns’ initial report regarding the claimant’s injury stated her chief complaint was shoulder pain, and she denied any specific injury. During her testimony at the hearing, the claimant never denied telling Dr. Burns she did not have a specific injury. In fact, at the hearing, the claimant admitted that she told Dr. Burns that there was no specific incident and later changed her position after filing her Form C. The claimant also testified during her deposition she was off work for three months following a bicep tendon repair surgery performed by Dr. Carpenter. However, the claimant was returned to work three weeks and one day after surgery.

GINTHER - H303571 18 It is clear that the claimant’s own inconsistent and self-serving reporting and testimony regarding the nature of her injury renders her unable to satisfy her burden of proof. Accordingly, the reasons set forth above, I must dissent. ___________________________________ MICHAEL R. MAYTON, Commissioner