JIMMY BOYETT, EMPLOYEE CLAIMANT
SNL DISTR. SVCS. CORP., EMPLOYER RESPONDENT
NY MARINE & GEN. INS. CO., CARRIER RESPONDENT
WCC No. G901719
Arkansas Workers Compensation
Before the Arkansas Workers' Compensation Commission
October 2, 2019
Hearing
before Administrative Law Judge O. Milton Fine II on August
13, 2019, in Batesville, Independence County, Arkansas.
Claimant represented by Mr. Phillip J. Wells, Attorney at
Law, Jonesboro, Arkansas.
Respondents represented by Mr. Eric Newkirk, Attorney at Law,
Little Rock, Arkansas.
Hon.
O. Milton Fine, II Administrative Law Judge.
STATEMENT
OF THE CASE
On
August 13, 2019, the above-captioned claim was heard in
Batesville, Arkansas. A prehearing conference took place on
May 20, 2019. A prehearing order entered on that date
pursuant to the conference was admitted without objection as
Commission Exhibit 1. At the hearing, the parties confirmed
that the stipulations, issues, and respective contentions, as
amended, were properly set forth in the order.
Stipulations
At the
hearing, the parties discussed the stipulations set forth in
Commission Exhibit 1. After an amendment of the third and the
addition of a fifth at the hearing, they are the following,
which I accept:
1. The Arkansas Workers' Compensation Commission
hasjurisdictionoverthis claim.
2. The employee/employer/carrier relationship existed on or
about January 15, 2019.
3. Claimant's average weekly wage of $875.00 entitles him
to compensation rates of $583.00/$437.00.
4. This claim has been controverted in its entirety.
5. Claimant reached maximum medical improvement and the end
of this healing period with respect to his alleged right
shoulder injury on April 1, 2019.
Issues
At the
hearing, the parties discussed the issues set forth in
Commission Exhibit 1. The following were litigated:
1. Whether Claimant sustained a compensable injury to his
right shoulder by specific incident on or about January 15,
2019.
2. Whether Claimant is entitled to reasonable and necessary
medical treatment.
3. Whether Claimant is entitled to temporary total disability
benefits.
4. Whether Claimant is entitled to a controverted
attorney's fee.
All
other issues have been reserved.
Contentions
The
respective contentions of the parties, following amendments
at the hearing, read as follows:
Claimant:
1.
Claimant contends that during the course of his employment,
he pulled on a fifth wheel of a truck and injured his
shoulder.
2.
Claimant further contends that the shoulder injury required
that he undergo surgery and that he became temporarily
disabled on February 6, 2019. This period ended on April 1,
2019, when he reached maximum medical improvement and the end
of his healing period.
3.
Claimant reserves any issue as to permanent impairment and/or
wage loss disability.
Respondents:
1.
Respondents contend that the claimant did not sustain a
compensable work injury on or about January 15, 2019.
2.
Respondents have no knowledge or information pertaining to a
purported work event on that day and have denied and
controverted in its entirety the existence of any work
incident/event occurring on January 15, 2019.
3.
Alternatively, in the unlikely event that compensability is
somehow established, Respondents have no liability until
February 28, 2019, for benefits due to the lack of
notice.
[1]
4.
Respondents contend that the claimant had pre-existing right
shoulder/upper extremity problems that predated any alleged
event or incident that might have occurred on or about
January 15, 2019. Thus, Respondents contend that, to the
extent objective findings exist, there would be no causal
connection between the work environment or an incident that
purportedly occurred on January 15, 2019, and the true source
of any such objective abnormalities would instead be the
claimant's pre-existing non-work-related right
shoulder/upper extremity abnormality.
5.
Finally, by way of further alternative contention,
Respondents plead an offset for all group medical or
disability benefits paid to or on behalf of the claimant, as
well as an offset or any unemployment benefits received by
the claimant, to the extent allowed under Arkansas law
(should compensability somehow be established).
FINDINGS
OF FACT AND CONCLUSIONS OF LAW
After
reviewing the record as a whole, including medical reports,
documents, and other matters properly before the Commission,
and having had an opportunity to hear the testimony of the
witnesses and to observe their demeanor, I hereby make the
following findings of fact and conclusions of law in
accordance with Ark. Code Ann. § 11-9-704 (Repl. 2012):
1. The Arkansas Workers' Compensation Commission
hasjurisdictionoverthis claim.
2. The stipulations set forth above are reasonable and are
hereby accepted.
3. Claimant has not proven by a preponderance of the evidence
that he sustained a compensable injury to his right shoulder.
4. Because of the above finding, the remaining issues-whether
Claimant is entitled to reasonable and necessary medical
treatment, temporary total disability benefits and a
controverted attorney's fee-are moot and will not be
addressed.
ADJUDICATION
Summary
of Evidence
The
hearing witnesses were Claimant; his wife, Barbie Boyett; his
supervisor Dwayne Lukehart; and his other supervisor Kip
Jaros.
In
addition to the prehearing order discussed above, the other
exhibits
[2] admitted into evidence in this case
were Claimant's Exhibit 1, a compilation of his medical
records, consisting of one index page and 15 numbered pages
thereafter; Respondents' Exhibit 1, another compilation
of Claimant's medical records, consisting of one index
page and 22 numbered pages thereafter; and Respondents'
Exhibit 2, non-medical records, consisting of one index page
and 22 numbered pages thereafter.
Adjudication
A.
Compensability
Introduction.
Claimant
has argued that on or around January 15, 2019, he sustained a
compensable injury to his right shoulder. Respondents dispute
that he suffered a compensable injury.
Testimony.
During
the time period relevant to the cause of action, Claimant was
a truck driver for Respondent SNL Distribution Services
("SNL"). He described his job there as follows:
"I hauled bread, different parts of the state, different
states." Along with over-the-road driving, this entailed
that he perform "[a] little bit of unloading," and
"swap trailers . . . drop and hook trailers and
stuff." As of January 2019, he had been employed there
five to six months.
Asked
to describe an on-the-job injury he sustained at SNL, he
related: "I was dropping and hooking, which means
switching trailers. I retch [sic]
[3] under and grabbed the fifth
wheel to release the trailer that I was dropping. I pulled on
it and I felt a pop in my arm and my shoulder." He
elaborated that the sensation was in his right shoulder. This
occurred approximately at noon.
[4] Claimant stated that despite this
problem, he was able to continue working that day. This
entailed a three to four-hour drive back to his place of
employment. Questioned how his shoulder was doing at that
point, Claimant testified: "It hurt. I mean it really
wasn't bad the first day." He denied having any
pre-existing problems with, or medical treatment on, this
shoulder.
Per
Claimant's testimony, upon his arrival back at SNL that
day, he told his "boss," Dwayne Lukehart, what had
happened. He related:
I went in and told him that I was jerking on a fifth wheel
and my shoulder popped. I said, it hurts. I said, you said no
matter how big or how small the injury, to report it. I said,
that's what I'm doing ... We talked about it and he
said, well if we're going to do workman's comp, we
got to do it right now. He says, a bunch of paperwork. I
said, let's give it a couple days and see what's
happening. We'll see if it's really something serious
or not. And he said, well, have you got short-term disability
on you. I said, that's fine. I said, I can take care of
it. I said, if I do have to go to the doctor or something,
I'll take care of it on my own insurance. That's why
...
