JANYL JOHNSON, EMPLOYEE CLAIMANT
ACE HARDWARE CORP., EMPLOYER RESPONDENT
INDEMNITY INS. CO./ESIS, INC., INSURANCE CARRIER/TPA RESPONDENT
No. H006268
Arkansas Workers Compensation
Before the Arkansas Workers' Compensation Commission
March 16, 2021
Hearing
before Administrative Law Judge, James D. Kennedy, on the
4
th day of February, 2021, in Little Rock, Pulaski
County, Arkansas.
Claimant is represented by Andy L. Caldwell, Attorney at Law,
Little Rock, Arkansas.
Respondents are represented by Michael Ryburn, Attorney at
Law, Little Rock, Arkansas.
JAMES
D. KENNEDY, Administrative Law Judge
STATEMENT
OF THE CASE
A
hearing was conducted on the 4
th day of February,
2021, to determine the issues of compensability for injuries
to the lumbar region of the lower back as the result of a
work-related motor vehicle accident. At the time of the
hearing, the claimant announced that he was withdrawing the
right hand and right arm claims because these were symptoms
of the back injury. It was agreed that the respondents had
accepted the injury to the neck as compensable, provided
medical as to the neck injury, and paid temporary total
disability (TTD) benefits in regard to the injury to the
neck. The parties also agreed that the claimant earned
sufficient wages to earn the maximum TTD/permanent partial
disability (PPD) rate. As stated above, the claimant agreed
that he had received TTD, but contended that TTD ceased
between September 22 through November 5, 2020, and that he
was entitled to TTD for that period of time. The parties also
agreed that the respondents initially accepted the claim to
the lower back as compensable, but that the respondents were
now controverting the claim to the lower back in its
entirety. A copy of the Pre-hearing Order was marked
“Commission Exhibit 1” and made part of the
record without objection. The Order provided that the parties
stipulated that the Arkansas Workers’ Compensation
Commission has jurisdiction of the within claim and that an
employer/employee relationship existed on March 20, 2020, the
date of the claimed injury in question.
The
claimant’s and respondents’ responses were set
out in their respective responses to the Pre-hearing
Questionnaire and made a part of the record without
objection. The sole witness consisted of Janyl Johnson, the
claimant. From a review of the record as a whole, to include
medical reports and other matters properly before the
Commission, and having had an opportunity to observe the
testimony and demeanor of the witnesses, the following
findings of fact and conclusions of law are made in
accordance with Ark. Code Ann. § 11-9-704.
FINDINGS
OF FACT AND CONCLUSIONS OF LAW
1. The
Arkansas Workers’ Compensation Commission has
jurisdiction over this claim.
2. That
an employer/employee relationship existed on March 20, 2020,
the date of the claimed injury. At the time of the claimed
injury, the claimant earned sufficient wages to earn the
maximum TTD/PPD rate.
3. That
the respondents accepted the claimant’s neck injury
that occurred on March 20, 2020, as a work-related
compensable injury, and paid the medical and TTD.
4. That
the claimant has satisfied the required burden of proof to
show that he sustained a compensable work-related injury to
the lumbar region of the lower back on March 20, 2020.
5. That
the claimant has satisfied the required burden of proof to
show that he is entitled to the reasonable and necessary
medical treatment of the lumbar region of the lower back.
Additionally, the chiropractic treatment he already received
was reasonable and necessary.
6. That
the claimant has also satisfied the burden of proof to show
that he is entitled to additional TTD from September 22,
2020, up and through the date of November 5, 2020.
7. The
claimant is entitled to attorney fees pursuant to Ark. Code
Ann. § 11-9-715. This award shall bear interest at the
legal rate pursuant to Ark. Code Ann. § 11-9-809.
8. If
not already paid, the respondents are ordered to pay for the
cost of the transcript forthwith.
REVIEW
OF TESTIMONY AND EVIDENCE
The
Pre-hearing Order, along with the Pre-hearing Questionnaires
of the parties, were admitted into the record without
objection. The claimant submitted three (3) exhibits that
were admitted into evidence without objection: (1) Claimants
Exhibit One, which consisted of 149 pages of medical records;
(2) Claimant’s Exhibit Two, which consisted of six (6)
pages of payment and prescription records; and (3)
Claimant’s Exhibit Three, which consisted of two (2)
pages of claim payments.
The
claimant, who was the sole witness, testified that he was
born on July 29, 1961, and was employed by Ace Hardware on
March 20, 2020, when he was involved in a work-related motor
vehicle accident where a black pickup crossed the center line
and all lanes of traffic and hit the tractor-trailer that he
was driving. (Tr. 8, 9) The claimant testified that his neck
and entire back were injured. He reported the accident to his
manager, Daniel Higgins. Mr. Higgins came to the accident
scene and took the claimant to a doctor for a drug test. (Tr.
10)
Later,
the claimant sought chiropractic treatment on his own, and
was treated for a period of time. Later, the respondents sent
the claimant to Concentra. Treatment with Concentra started
on the date of April 15, 2020, and the claimant had started
treating with his chiropractor a few days earlier. (Tr. 11)
Concentra took him off of work for about a week and placed
him on work restrictions on April 29, where he was limited to
lifting no more than thirty (30) pounds. The claimant
testified that he was not offered work restrictions within
those parameters, so after the week off, he returned to work
until September. (Tr. 12)
Claimant
stated that Doctor Adametz took him off work around September
1 due to his condition at the time. The claimant returned to
Doctor Adametz on September 29 and was placed on light duty.
(Tr. 13) He was supposed to call into work on Saturday about
making his Sunday run and said,
[S]o that Saturday I got to feeling worse. I had a lot of
pain going in my arm and everything so I felt that I
wasn’t going to be able to even do that light duty. So
I called my employer that next morning to let him know that I
wouldn’t be able to do that light duty because the pain
and everything come back. And that Monday morning I went
right back to Doctor Adamtz and he took me off.
The
claimant testified that he had been off work since that time
and was still treating with Doctor Adamentz, primarily for
his neck. (Tr. 14) The respondents were currently paying for
that treatment and providing TTD, but he did not receive
disability payments between September 22 through November 5.
The claimant also stated that he was still having issues with
his neck, upper back, and lower back, and he used his own
insurance for the chiropractic treatment. (Tr. 15)
Under
cross examination, the claimant testified that he was
currently being treated by Doctor Adametz, but admitted he
did receive some treatment from Doctor Burton for his
tailbone area below his low back, after a recent
fender-bender where he was rear-ended. The claimant admitted
that he had not sent the workers’ compensation carrier
a written notice in regard to the treatment by the
chiropractor. The claimant also admitted that he was involved
in another vehicle accident in November 2020, where he was
again rear-ended, and that he was still being treated by his
chiropractor. The claimant provided he again injured his
tailbone area, and that the injury was not in the same area
that was injured in the accident involving the
tractor-trailer on March 20. (Tr. 16 - 18) He currently was
going to the same chiropractor where he presented prior to
being treated by Concentra after the March 20 tractor-trailer
accident. The chiropractor was now treating him for a
different condition than what arose from the truck accident,
and the treatment by the...
