Clark, 120418 ARWC, G700171

• Case Date: December 04, 2018
• Court: Kansas

SHALONE R. CLARK, Employee CLAIMANT U.S. RENAL CARE, INC., Employer RESPONDENT CNA INSURANCE COMPANY, Insurance Carrier/TPA RESPONDENT No. G700171 Arkansas Workers Compensation Before the Arkansas Workers' Compensation Commission December 4, 2018          Hearing before ADMINISTRATIVE LAW JUDGE ELIZABETH W. HOGAN on July 20, 2018 in Little Rock, Pulaski County, Arkansas; reassigned for purposes of an Opinion to ADMINISTRATIVE LAW JUDGE ERIC PAUL WELLS in Springdale, Washington County, Arkansas.           Claimant represented by MARK ALAN PEOPLES, Attorney at Law, Little Rock, Arkansas.           Respondents represented by FRANK B. NEWELL, Attorney at Law, Little Rock, Arkansas.           ERIC PAUL WELLS, ADMINISTRATIVE LAW JUDGE.          STATEMENT OF THE CASE          On July 20, 2018, the above captioned claim came on for a hearing at Little Rock, Arkansas before Administrative Law Judge Elizabeth W. Hogan. ALJ Hogan will be out for an extended period of time and as a result this claim has been reassigned to this administrative law judge for a decision on the record. Both parties indicated that they had no objection to proceeding in this matter.          A pre-hearing conference was conducted by ALJ Hogan on June 5, 2018, and a Pre-hearing Order was filed on June 6, 2018. A copy of the Pre-hearing Order has been marked Commission's Exhibit No. 1 and made a part of the record without objection.          At the pre-hearing conference the parties agreed to the following stipulations:

1. The Arkansas Workers' Compensation Commission has jurisdiction of this claim.

2. On all relevant dates, the relationship of employee-employer-carrier existed between the parties on December 17, 2016.

3. The claimant’s weekly compensation rates are $326.00 for temporary total disability and $245.00 for permanent partial disability.

4. Medicaid has paid some expenses.

         By agreement of the parties the issues to litigate are limited to the following:

1. Whether claimant sustained a compensable injury to her back, neck and shoulder on December 17, 2016.

2. Whether claimant is entitled to medical benefits.

3. Whether claimant is entitled to temporary total disability benefits.

4. Whether claimant’s attorney is entitled to an attorney’s fee.

         Claimant’s contentions are:

“a. That she sustained a compensable injury to her back, shoulder, and neck on or about December 17, 2016;

b. That claimant is entitled to reasonable and necessary medical treatment relative to her work injuries;

c. That claimant is entitled to TTD from date of injury until a yet to be determined date in the future; and

d. That this claim has been controverted in its entirety and thus, undersigned counsel is entitled to maximum statutory attorney’s fees.”

         Respondents’ contentions are:

“1. Claimant did not sustain a compensable injury to her back, shoulder, neck, or any other body part on or about December 17, 2016.

2. Claimant is not entitled to awards of weekly or medical benefits.

3. Claimant is not entitled to an award of attorney’s fees.

4. Respondents reserve the right to supplement these contentions if additional discovery discloses other defenses.”

         The claimant in this matter is a 41-year-old female who alleges to have sustained compensable injuries to her back, neck and shoulder on December 17, 2016. On direct examination the claimant was asked to describe the incident she alleges and her experience of pain or discomfort as a result of that incident as follows:

Q And what happened?

A Well, when I got to work, like I was saying, I was a little tense. I was a little tense. No pain or anything. I had feeling and everything, but anyway, the day I got hurt, it was a patient by the name of Catherine Lewis.

I rolled her in, assisted her from the wheelchair, because at the time, she didn’t have a order for a Hoyer lift, but anyway, she was able to stand, and while we was in the middle of transferring, I had her hands on my shoulder and I just kind of had my hand on her waist to kind of help her.

But anyway, her legs gave way. That’s when she went down, but she was holding me. So, her weight, you know, had kind of just pulled me forward. And I had to grab her by her waist and kind of lift her up and throw her over to the chair on the edge of the seat.

I called another worker, Lannell Seamster. He’s a nurse. I called him over to help him. I said, I need some help. And he helped me pull him back and his comment -- he made a statement to me. He said, Clark, you are --

MR. NEWELL: Objection, Your Honor. I’m --

THE COURT: We can’t go into conversations that you had with --

MS. CLARK: Okay.

THE COURT: -- other people.

MR. PEOPLES CONTINUING:

A But -- well, it was a -- it was a -- well, it’s a worker -- another worker, but he helped me. And he, you know, he helped me.

Q Okay.

A Uh-huh.

Q Did you experience any pain or discomfort?

A It was at the end of the day –- after I finished doing my work and everything -- it was the end of the day. And I started noticing dull, nagging, aching in my back, and I’m like, okay, you know, I’m use to aches and pains, you know. But, I didn’t know anything, you know, was going -- but, I didn’t know it was going to get this severe. I just thought it was an ache, you know, and you have to compliance -- mandatory compliance with everything, and it was me and another coworker there.

         The claimant continued to work after she alleges the incident to have occurred, but the length of her time of work after the alleged incident is unclear due to her vague and non-responsive answers in testimony. It is clear, however, that the claimant did not leave work early due to her alleged injury.          The claimant was asked on cross-examination about pain or symptoms at the time she alleges the incident to have occurred. I note her cross-examination testimony conflicts with her direct examination testimony. That testimony is as follows:

Q And you’ve given a description of how you were holding the patient who you were moving from what, a wheelchair to a dialysis chair?

A A wheelchair.

Q And that’s described in pretty good detail in the deposition, so I’m not going to go through that.

You said in your deposition that your neck started hurting about 5:00 p.m. that day; is that right?

A I don’t recall the time.

Q Okay. Or. four or five. I think you just testified --

A Yeah. Around four or five. I was saying (inaudible) and I didn’t --

Q But, you had -- you had no symptoms at all while you were moving this lady from the wheelchair to the dialysis chair?

A I mean, as far as, I mean, you know, if you have something -- working in the nursing field -- when you have any kind of -- if a patient go down while you trying to transfer, you know, and you -- you try to think quick. You grab. You throw. You’re going to have a little muscle fatigue trying to, you know, because I’m holding –- I’m holding dead weight because, you know, just saying, so, I mean, that was something that I’m used to working --

Q Okay.

A -- with and --

Q Well, I understand.

A But there was no pain or anything at the time.

Q You had no pain, and your right arm and shoulder didn’t go numb on you --

A Exactly.

Q -- or something? Okay.

A Exactly.

Q And so you didn’t report an injury to anybody that day?

A Right. Because I -- I wasn’t hurting right then, you know.

         The claimant testified that she did not report that she suffered any injury because she did not have any symptoms or pain resulting from the incident she alleges to have caused her compensable injuries to her neck, back and shoulder.          The claimant alleges her work-related incident to have occurred on December 17, 2016, which was a Saturday. Again, the claimant completed her work day and was not scheduled to return to work until Monday, December 19, 2016. The claimant testified that on Sunday she experienced excruciating pain and swelling in her neck and shoulder. In the claimant’s deposition testimony, she alleges that she called her supervisor and informed her that she would not be able to work on Monday, December 19, 2016. However, in her hearing testimony she alleges that her mother called her supervisor and informed her that she would not...