Robert Herdison vs. Drivers Select, Inc

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 the FULL COMMISSION in Little Rock, Pulaski County, Arkansas. Claimant represented by the HONORABLE LAURA BETH YORK, Attorney at Law, Little Rock, Arkansas. Respondents represented by the HONORABLE KAREN H. McKINNEY, Attorney at Law, Little Rock, Arkansas. Decision of Administrative Law Judge: Affirmed and Adopted. OPINION AND ORDER Claimant appeals an opinion and order of the Administrative Law Judge filed October 2, 2024. In said order, the Administrative Law Judge made the following findings of fact and conclusions of law: 1. The stipulations agreed to by the parties at the pre- hearing conference conducted on April 29, 2024, and contained in a Pre-hearing Order filed April 30, 2024, are hereby accepted as fact.

Herdison-H304951 2 2. The claimant has failed to prove by a preponderance of the evidence that he sustained compensable injuries to his cervical, thoracic and lumbar spine on or about June 22, 2023. 3. The claimant has failed to prove by a preponderance of the evidence that he is entitled to medical treatment for his alleged compensable cervical, thoracic and lumbar spine injuries. 4. The claimant has failed to prove by a preponderance of the evidence that he is entitled to temporary total disability benefits from June 23, 2023, to a date yet to be determined. 5. The claimant has failed to prove by a preponderance of the evidence that his attorney is entitled to an attorney’s fee in this matter. We have carefully conducted a de novo review of the entire record herein, and it is our opinion that the Administrative Law Judge's decision is supported by a preponderance of the credible evidence, correctly applies the law, and should be affirmed. Specifically, we find from a preponderance of the evidence the findings of fact made by the Administrative Law Judge are correct and they are, therefore, adopted by the Full Commission. Therefore, we affirm and adopt the October 2, 2024 decision of the Administrative Law Judge, including all findings and conclusions therein, as the decision of the Full Commission on appeal.

Herdison-H304951 3 IT IS SO ORDERED. ___________________________________ SCOTTY DALE DOUTHIT, Chairman ___________________________________ MICHAEL R. MAYTON, Commissioner Commissioner Willhite dissents. DISSENTING OPINION The Administrative Law Judge (hereinafter referred to as “ALJ”) found that the Claimant failed to prove by a preponderance of the evidence that he sustained compensable injuries to his cervical, thoracic, and lumbar spine on or about June 22, 2023, that the Claimant failed to prove by a preponderance of the evidence that he is entitled to medical treatment for his alleged injuries, and that the Claimant failed to prove by a preponderance of the evidence that he is entitled to temporary total disability benefits from June 23, 2023, to a date yet to be determined. Lastly, the ALJ found that the Claimant failed to prove by a preponderance of the evidence that his attorney is entitled to an attorney’s fee in this matter. After conducting a thorough review of the record, I would reverse the ALJ’s findings as to the Claimant’s compensable injuries to his cervical, thoracic, and lumbar spine and find that he is entitled to medical treatment for

Herdison-H304951 4 his compensable injuries, and entitled to temporary total disability from November 18, 2023 to a date yet to be determined. 1. Claimant has suffered compensable work-related injuries to his cervical, thoracic and lumbar spine on or about June 22, 2023. To establish a compensable injury by a preponderance of the evidence the Claimant must prove: (1) an injury arising out of and in the course of employment; (2) that the injury caused internal or external harm to the body which required medical services or resulted in disability or death; (3) medical evidence supported by objective findings, as defined in Ark. Code Ann. §11-9-102(16), establishing the injury; and (4) that the injury was caused by a specific and identifiable time and place of occurrence. The central question in this case is whether the Claimant’s injury arose in the course and scope of his employment with the Respondent. A compensable injury does not include an injury “inflicted upon the employee at a time when employment services were not being performed.” Ark. Code Ann. § 11-9-102(4)(B)(iii). An employee is performing employment services when he is doing something that is generally required by his employer. Dairy Farmers of America v. Coker, 98 Ark. App. 400, 255 S.W.3d 905. The Arkansas Court of Appeals uses the same test to determine whether an employee is performing employment services as it does when

Herdison-H304951 5 determining whether an employee is acting within the course and scope of employment. Pifer v. Single Source Transp., 347 Ark. 851, 69 S.W.3d 1 (2002). The test is whether the injury occurred within the time and space boundaries of the employment when the employee was carrying out the employer’s purpose directly or indirectly. Id. An employee traveling to and from the workplace is generally said not to be acting within the course and scope of employment. Olsten Kimberly Quality Care v. Pettey, 328 Ark. 381, 944 S.W.2d 524 (1997). This “going and coming” rule ordinarily precludes recovery for an injury sustained while the employee’s going to or coming from his place of employment. Id. The rationale behind this rule is that an employee is not within the course of employment while traveling to or from his job. Id. However, an exception to this rule exists where the employee must travel from jobsite to jobsite, whether or not he is paid for that travel time. Id. The rationale behind this exception is that such travel is an integral part of the job itself. Id. Even where a Claimant is not performing his primary employment activity, an injury may be deemed compensable if the Claimant is fulfilling a duty placed upon him by their employer. Moncus v. Billingsley Logging, 366 Ark. 383, 235 S.W.3d 877 (2006). Respondent employee, Abigail Robertson testified that she texted Claimant and another Respondent employee about a job to pick-up a truck

Herdison-H304951 6 at MHC Kenworth in Van Buren and drive it to Rogers on June 22, 2023. The Claimant had the option to take his personal vehicle to Van Buren and have another employee carpool with him, or vice versa. The Claimant and another employee decided to take the other employee’s vehicle. Claimant and the other employee travelled from Fort Smith to Van Buren, picked the truck up and drove it to Rogers. After completing the Respondent’s jobs, Claimant testified that they then travelled back to the Respondent’s offices in Fort Smith to check-in with their supervisor, return paperwork, and pick- up his personal vehicle to return home. While travelling back to the Respondent’s Fort Smith office the Claimant and the other employee of Respondent were in a car accident. Claimant’s testimony that he was travelling back to the Respondent’s offices in Fort Smith to check-in with his supervisor, return paperwork and pick up his personal vehicle is credible as he may have genuinely believed that was required for this specific job as there were no clearly established procedures by Respondent’s witnesses’ own testimony. Further, it is apparent that traveling was an integral part of the Claimant’s position with the Respondent at the time of the accident. See Olsten v. Pettey, 328 Ark. 381, 944 (1997). While the necessity of this trip is unclear, Claimant was clearly fulfilling a duty placed upon him by the Respondent at the time of his accident as he was generally required to return paperwork and check-in

Herdison-H304951 7 with his supervisor at the end of a job. Respondent employee Jennifer Powell testified that not all jobs start and stop at the Respondent’s Fort Smith office and that every bid/job is different. Based on the testimony of both Respondent witnesses, I find it credible that the Claimant was returning to the Respondent’s offices in Fort Smith as generally required and not prohibited by the Respondent, and therefore performing employment services. Based upon the credible evidence, I find that the Claimant was performing employment services at the time of the accident and was within the course and scope of his employment when the accident occurred. Next, the Claimant must prove by a preponderance of the evidence that the injuries he suffered caused internal or external harm to the body which required medical services, that the medical evidence is supported by objective findings establishing the injury; and that the injury was caused by a specific and identifiable time and place of occurrence. On June 22, 2023, Claimant sought medical treatment for his injuries related to the motor vehicle accident. Claimant stated that he had complaints of pain to his head, cervical neck pain and thoracic pain. X-Rays were obtained, but no fractures or dislocations were apparent. Claimant then followed up with Dr. Chester Carlson who diagnosed the Claimant with a sprain of his cervical, thoracic and lumbar spine and muscle spasms at each of these three areas

Herdison-H304951 8 of the spine. Dr. Carlson recommended and performed several trigger- point injections for these muscle spasms and pain associated with the Claimant’s sprain of his cervical, thoracic and lumbar spine. On July 24, 2023, Claimant underwent a Cervical, Lumbar, and Thoracic Spine MRI which showed disc bulges and spurring of the C4-C5, C5-C6, C6-C7, L3- L4, L4-L5, T7-T8, T8-T9, and T9-T10. Claimant continued treatment with Dr. Carlson and on October 4, 2023, Dr. Carlson referred Claimant to neurologist Dr. Sean Moore stating: I will release this patient from my care today. The patient has reached the maximum medical benefit of my treatment plan at this time. However, this patient still has ongoing pain due to this accident and will likely require medical treatment for this problem in the future. On October 24, 2023, Claimant was seen by Dr. Moore who evaluated the MRI from July 24, 2023, stating: The patient has an MRI of the cervical, lumbar and thoracic spine from 7/24/23. The thoracic MRI shows small disc bulges at T7-8, T8- 9, and T9-10 with minimal central stenosis. There is mild neural foraminal stenosis at T8-9. There is no abnormal cord signal on T2- weighted images. The cervical MRI shows a mild disc bulge at C4-5. There is a central disc herniation at C5-6 and left paracentral herniation at C6-7. There is minimal stenosis at C4-5. There is severe canal stenosis at C5-6 with abnormal T2-weighted signal within the spinal cord. There is moderate central and left neural foraminal stenosis at C6-7. The alignment is otherwise normal. The lumbar MRI shows spondylolisthesis at L3-4. There is moderate central and neural foraminal stenosis at this segment. There is mild disc bulging at L4-5 with minimal stenosis. There is mild disc bulging at L5-S1 without significant stenosis. There is mild facet arthropathy. The alignment is otherwise normal.

Herdison-H304951 9 Dr. Moore then diagnosed Claimant with cervical stenosis/HNP with severe radiculopathy and myelopathy, lumbar stenosis/spondylolisthesis with radiculopathy, neurogenic claudication, as a result of the June 22, 2023 motor vehicle accident. Dr. Moore then recommended surgical intervention for the Claimant’s cervical stenosis secondary to his severe and progressive neurologic deficits. On November 18, 2023, Claimant received an anterior cervical microdiscectomy and fusion at C5-6 and C6-7 for spinal cord decompression. At stated earlier, Claimant also received injections for muscle spasms at the thoracic and lumbar levels of his spine. Based upon the credible proof in the record, I find that Claimant sustained compensable injuries to his cervical, thoracic and lumbar spine as a result of his June 22, 2023 work accident. 2. The Claimant is entitled to medical treatment for his compensable work-related injuries to his cervical, thoracic, and lumbar spine. An employer shall promptly provide for an injured employee such medical treatment as may be reasonably necessary in connection with the injury received by the employee. Ark. Code Ann. §11-9-508(a). The claimant bears the burden of proving that she is entitled to additional medical treatment. Dalton v. Allen Eng’g Co., 66 Ark. App. 201, 989 S.W.2d 543 (1999). What constitutes reasonable and necessary medical treatment is a question of fact for the Commission. White Consolidated

Herdison-H304951 10 Indus. v. Galloway, 74 Ark. App. 13, 45 S.W.3d 396 (2001); Wackenhut Corp. v. Jones, 73 Ark. App. 158, 40 S.W.3d 333 (2001). The Arkansas Court of Appeals has held a claimant may be entitled to additional medical treatment even after the healing period has ended, if said treatment is geared toward management of the injury. See Patchell v. Wal-Mart Stores, Inc., 86 Ark. App. 230, 184 S.W.3d 31 (2004); Artex Hydrophonics, Inc. v. Pippin, 8 Ark. App. 200, 649 S.W.2d 845 (1983). Such services can include those for the purpose of diagnosing the nature and extent of the compensable injury; reducing or alleviating symptoms resulting from the compensable injury; maintaining the level of healing achieved; or preventing further deterioration of the damage produced by the compensable injury. Jordan v. Tyson Foods, Inc., 51 Ark. App. 100, 911 S.W.2d 593 (1995); Artex, supra. In the present case, Claimant sustained compensable injuries to his cervical, thoracic and lumbar spine. Diagnostic testing performed on July 24, 2023, demonstrated objective problems at the cervical, thoracic, and lumbar areas of the Claimant’s spine. Muscle spasms were also observed and treated in the Claimant’s upper and mid-back areas. The Claimant also reported suffering bowel incontinence and radiculopathy.

Herdison-H304951 11 On October 4, 2023, Dr. Chester Carlson placed Claimant at maximum medical improvement stating: I will release this patient from my care today. The patient has reached the maximum medical benefit of my treatment plan at this time. However, this patient still has ongoing pain due to his accident and will likely require medical treatment for this problem in the future. Dr. Carlson then referred the Claimant to neurosurgeon Dr. Shawn Moore for evaluation and treatment. Claimant was seen by Dr. Moore on October 24, 2023. Dr. Moore recommended surgical intervention for his cervical stenosis secondary to his severe and progressive neurologic deficits. Claimant underwent an anterior cervical microdiscectomy and fusion at C5-6 and C6-7 for spinal cord decompression for his compensable cervical injury on November 18, 2023. Based upon the credible evidence, I find that the Claimant is entitled to reasonable and necessary medical treatment for the compensable injuries to his spine including surgery for his compensable cervical injury. 3. Claimant is entitled to temporary total disability benefits from November 18, 2023 to a date yet to be determined. Temporary total disability benefits are appropriate where the employee remains in the healing period and is totally incapacitated from

Herdison-H304951 12 earning wages. Ark. State Highway Dep’t v. Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981). Claimant underwent surgery for his compensable cervical injury on November 18, 2023. While no explicit medical testimony regarding the claimant’s ability to work is presented within the record, it is certainly more probable that such an invasive surgery would warrant time off work where Claimant is totally incapacitated from earning wages. I find that Claimant is entitled to temporary total disability benefits from November 18, 2023, until such a date as the Claimant is released from care from his authorized physician. For the reasons stated above, I respectfully dissent. ______________________________ M. SCOTT WILLHITE, Commissioner