Evans, 011222 ARWC, H000809

Docket NºClaim H000809
Case DateJanuary 12, 2022
CourtKansas
STACY EVANS, EMPLOYEE CLAIMANT
EL DORADO PACKAGING, INC., EMPLOYER RESPONDENT
CNA INSURANCE COMPANY, INSURANCE CARRIER/TPA RESPONDENT
Claim No. H000809
Arkansas Workers Compensation
Before the Arkansas Workers' Compensation Commission
January 12, 2022
         Hearing before the Arkansas Workers' Compensation Commission (the Commission), Administrative Law Judge (ALJ) Mike Pickens, on October 14, 2021, in El Dorado, Union County, Arkansas.           The claimant was represented by the Honorable Laura Beth York, Rainwater, Holt & Sexton, Little Rock, Pulaski County, Arkansas.           The respondents were represented by the Honorable Karen H. McKinney, Barber Law Firm, Little Rock, Pulaski County, Arkansas.          OPINION AND ORDER           Mike Pickens, Administrative Law Judge.          INTRODUCTION          In the Prehearing Order filed July 23, 2021, the parties agreed to the following stipulations, which they affirmed on the record at the hearing:
1. The Arkansas Workers' Compensation Commission (the Commission) has jurisdiction over this claim.
2. The employer/employee/carrier-TPA relationship existed with the claimant at all relevant times including January 27, 2020, the date the claimant alleges he sustained work-related injuries to his head, neck, and lower back.
3. The claimant's average weekly wage (AWW) is sufficient to entitle him to the 2020 maximum weekly compensation rates for temporary total disability (TTD), and permanent partial disability (PPD) benefits, if the claim is deemed compensable.
4. The respondents have controverted this claim in its entirety.
5. The parties specifically reserve any and all other issues for future determination and/or litigation.
(Commission's Exhibit 1 at 1-2; Hearing Transcript at 6-8).
1. Whether the claimant has sustained compensable injury(ies) within the meaning of the Arkansas' Workers' Compensation Act (the Act) to his head, neck, and lower back on January 27, 2020.
2. If the claimant's alleged injury(ies) are deemed compensable, the extent to which he is entitled to medical and indemnity benefits.
3. Whether the claimant's attorney is entitled to a controverted fee on these facts.
4. The parties specifically reserve any and all other issues for future litigation and/or determination.
(Comms'n Ex. 1 at 2; T. 6-8).          The claimant contends that on Monday, January 27, 2020, he was hit by a forklift within the scope and course of his employment as a warehouse supervisor with El Dorado Packaging, Inc. (El Dorado Paper Bag). The claimant contends he sustained injuries to his head, neck, and lower back as a result of the subject alleged work incident. He claims further he has had seizures since the alleged incident. He contends he was treated at South Arkansas Medical Association Healthcare Clinic (SAMA), in El Dorado, and by Dr. Robert Watson, a primary care physician (PCP) associated with a facility called Family Medical Care of South Arkansas. In summary, the claimant contends he sustained compensable injuries to his head, neck, and lower back within the course and scope of his employment; that he is entitled to medical benefits at the respondents' expense, TTD benefits from the date of the alleged injuries to a date yet to be determined; and that his attorney is entitled to a controverted fee. The claimant specifically reserves any and all other issues for future litigation and/or determination. (Comms'n Ex. 1 at 2; T. 6-8).          The respondents contend the claimant did not sustain a "compensable injury"(ies) within the Act's meaning arising out of the course and scope of his employment. Specifically, the respondents contend that if the claimant sustained any injury(ies) whatsover, any such injury(ies) was(were) idiopathic in nature and, therefore, not compensable within the Act's meaning. The respondents specifically reserve any and all other issues for future litigation and/or determination. (Comms'n Ex. 1 at 2; T. 6-8).          The record herein consists of the hearing transcript and any exhibits contained therein and attached thereto, as well as the parties' blue-backed briefs.          STATEMENT OF THE CASE          The Witnesses' Testimony          The claimant, Mr. Stacy Evans (the claimant) was 49 years old at the time of the hearing, and 47 years old at the time of the alleged injury(ies) of January 27, 2020, is no longer employed at El Dorado Paper Bag. He obtained an associate degree online from Strayer University, which He worked with El Dorado Paper Bag from approximately some time in 1992, until the date of his alleged injury(ies), January 27, 2020, at which time he was working as a warehouse manager. The claimant's primary job duties involved oversight of shipping and receiving, along with other duties required to supervise the warehouse workers. (T. 14-25).          The claimant testified that on the day of the alleged incident, January 27, 2020, he was walking around the warehouse looking for a missing pallet of product. The forklift operator, Mr. Vincent Powell, was moving a pallet of Tidy Cat, and the claimant was waiting to ask Mr. Powell to help him look for the missing pallet, "because he's been there the longest, so if anything's missing, he'll find it." While waiting for Mr. Powell to finish this job, he testified as Mr. Powell was backing-up, the back of the forklift hit him in the left arm, knocking him to the ground and causing his head to hit the concrete. The claimant said the forklift "beeps" when it is operating in reverse, but he does not recall hearing it beeping at the time of the alleged incident. He testified he sustained a scratch to his arm, a cut on his head, and also injured his neck and lower back as a result of the alleged incident. He also alleged he experienced seizures and incontinence after the accident, but he has not had any seizures since December 2020. The claimant testified he told someone to go get help, and to get Ms. Cashonna Moore and his son, both of whom also worked at the same location. He testified further he was taken to the hospital emergency room (ER) in an ambulance where he was examined and released without having received any treatment and in violation of "protocol" even though "they knew he had a concussion.", so he sought treatment on his own from SAMA and his PCP, Dr. Watson. (T. 26-50).          On cross-examination, the claimant admitted to various discrepancies between his deposition and hearing testimony related to exactly when the alleged incident occurred, and exactly how it occurred, but attributed them to his severe "anxiety." He became noticeably agitated and argumentative on cross-examination when confronted with the fact he was working under a "Performance Improvement Plan" and possibly in danger of being fired at the time of the alleged incident; as well as when he was asked more details about operation of the forklift, exactly how the incident occurred, and the specifics of his medical treatment. (T. 59-121).          The claimant's wife, Ms. Latisha Cato Evans, testified when she arrived at the hospital after the alleged incident she saw blood on the claimant's head, and said she witnessed the claimant have seizures after the alleged incident. She also testified concerning which doctors had given the claimant's certain medications, and the fact his treating physician restricted the claimant's driving for a time when he reported having experienced seizures. (T. 127-131).          Mr. Robert Moore, who was employed as the janitor at El Dorado Paper Bag on January 27, 2020, was the respondents first witness. Mr. Moore testified he no longer worked for El Dorado Paper Bag, but was self-employed as a taxi driver. He said if he would not have left the company in March of 2021, he would have been employed there two (2) years as of the hearing date. He admitted he was present to testify pursuant to the respondents' subpoena as a reluctant witness. He testified both the claimant and Ms. Colleen Martin hired him, and that the claimant was his actual supervisor. Mr. Moore testified as an eyewitness to the incident. He said he saw the claimant present in the area where Mr. Powell was operating the forklift. (T. 137-138).          Mr. Moore testified that from where he was standing about 10-15 feet away from the forklift and the claimant, he could see the claimant behind the forklift pacing back and forth. Mr. Moore testified he had a clear line of sight to the claimant and the forklift and there was nothing obstructing his vision. Mr. Moore saw Mr. Powell was pulled into an aisle with a pallet on the forks, and he was reading the bar codes on the...

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