Johnson, 111721 ARWC, H103183

Docket NºWCC H103183
Case DateNovember 17, 2021
CourtKansas
BILLY J. JOHNSON, EMPLOYEE CLAIMANT
FRITO-LAY, INC., EMPLOYER RESPONDENT
INDEMNITY INS. CO. OF NORTH AMERICA, CARRIER RESPONDENT
WCC No. H103183
Arkansas Workers Compensation
Before the Arkansas Workers' Compensation Commission
November 17, 2021
         Hearing before Administrative Law Judge O. Milton Fine II on September 17, 2021, in Jonesboro, Craighead County, Arkansas.           Claimant represented by Mr. George H. Bailey, Attorney at Law, Little Rock, Arkansas.           Respondents represented by Mr. Lee J. Muldrow, Attorney at Law, Little Rock, Arkansas.           HON. O. MILTON FINE II, CHIEF ADMINISTRATIVE LAW JUDGE.          STATEMENT OF THE CASE          On September 17, 2021, the above-captioned claim was heard in Jonesboro, Arkansas. A pre-hearing conference took place on July 12, 2021. The 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          The parties discussed the stipulations set forth in Commission Exhibit 1. They are the following, which I accept:
1. The Arkansas Workers’ Compensation Commission has jurisdiction over this claim.
2. The employer/employee/carrier relationship existed at all relevant times, including March 7, 2021, the date of the alleged injury.
3. Respondents have controverted this case in its entirety.
4. Claimant’s average weekly wage entitles him to the maximum compensation rates.
         Issues          At the hearing, the parties discussed the issues set forth in Commission Exhibit 1. Following the amendment of the third issue, the following were litigated:
1. Whether Claimant sustained a compensable injury to his left shoulder by specific incident.
2. Whether Claimant is entitled to reasonable and necessary medical treatment.
3. Whether Claimant is entitled to temporary total disability benefits from March 7, 2021, through August 15, 2021.
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 amendment at the hearing, read as follows:          Claimant:
1. Claimant contends that he sustained a compensable left rotator cuff injury on March 7, 2021, during the course of and within the scope of his employment with the respondent/employer.
2. Claimant contends that he is entitled to reasonable and necessary medical treatment and unpaid medically related travel expenses, particularly his treatment with Dr. Spencer Guinn, including a surgery that was scheduled for April 22, 2021, with more than thirty (30) days’ notice given to the respondents, and subsequently accomplished on said date. Return appointments with Dr. Guinn and all related treatment are claimed as reasonable and necessary.
3. Claimant contends that he is entitled temporary total disability benefits from March 7, 2021, through August 15, 2021.
4. Statutory attorney’s fees based upon all controverted amounts are claimed, as this claim has been controverted in its entirety.
5. All other issues are reserved. Respondents:
1. Respondents contend there is insufficient medical information available to determine whether Claimant’s left shoulder condition is the result of a chronic condition requiring surgery, or an acute job injury.
2. The matter is fully controverted.
         FINDINGS OF FACT AND CONCLUSIONS OF LAW          After reviewing the record as a whole, including medical reports, deposition transcript, documents, and other matters properly before the Commission, and having had an opportunity to hear the testimony of the claimant and to observe his 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 has jurisdiction over this claim.
2. The stipulations set forth above are reasonable and are hereby accepted.
3. Claimant has proven by a preponderance of the evidence that he sustained a compensable injury to his left shoulder by specific incident.
4. Claimant has proven by a preponderance of the evidence that he is entitled to reasonable and necessary treatment of his compensable left shoulder injury. Moreover, he has proven by a preponderance of the evidence that all of his left shoulder treatment that is in evidence was reasonable and necessary.
5. Claimant has proven by a preponderance of the evidence that he is entitled to temporary total disability benefits from April 22, 2021, to August 15, 2021.
6. Claimant has not proven by a preponderance of the evidence that he is entitled to temporary partial disability benefits for any period.
7. Claimant has proven by a preponderance of the evidence that his counsel is entitled to a controverted attorney’s fee on the indemnity benefits awarded herein, pursuant to Ark. Code Ann. § 11-9-715 (Repl. 2012).
         CASE IN CHIEF          Summary of Evidence          Claimant was the sole witness.          In addition to the Prehearing Order discussed above, admitted into evidence in this case were the following: Claimant’s Exhibit 1, a compilation of his medical records, consisting of two (2) index pages and nineteen (19) numbered pages thereafter; Claimant’s Exhibit 2, non-medical records, consisting of two (2) index pages and eleven (11) numbered pages thereafter; and Respondents’ No.1 Exhibit 1, another compilation of Claimant’s medical records, consisting of one (1) index page and twenty-eight (28) numbered pages thereafter.          Adjudication          A. Compensability          Introduction. Claimant, a truck driver, has argued that he suffered a compensable injury to his left shoulder in a specific incident on March 7, 2021. Respondents deny this.          Standards. In order to prove the occurrence of an injury caused by a specific incident identifiable by time and place of occurrence, a claimant must show that: (1) an injury occurred that arose out of and in the course of his employment; (2) the injury caused internal or external harm to the body that required medical services or resulted in disability or death; (3) the injury is established by medical evidence supported by objective findings, which are those findings which cannot come under the voluntary control of the patient; and (4) the injury was caused by a specific incident and is identifiable by time and place of occurrence. Mikel v. Engineered Specialty Plastics, 56 Ark. App. 126, 938 S.W.2d 876 (1997). If a claimant fails to establish by a preponderance of the evidence any of the above elements, compensation must be denied. Id. This standard means the evidence having greater weight or convincing force. Barre v. Hoffman, 2009 Ark. 373, 326 S.W.3d 415; Smith v. Magnet Cove Barium Corp., 212 Ark. 491, 206 S.W.2d 442 (1947).          A claimant’s testimony is never considered uncontroverted. Nix v. Wilson World Hotel, 46 Ark. App. 303, 879 S.W.2d 457 (1994). The determination of a witness’ credibility and how much weight to accord to that person’s testimony are solely up to the Commission. White v. Gregg Agric. Ent., 72 Ark. App. 309, 37 S.W.3d 649 (2001). The Commission must sort through conflicting evidence and determine the true facts. Id. In so doing, the Commission is not required to believe the testimony of the claimant or any other witness, but may accept and translate into findings of fact only those portions of the testimony that it deems worthy of belief. Id.          Testimony. Claimant testified that he worked for Respondent Frito-Lay for twenty (20) years. His testimony was that he injured his left shoulder at work on March 7, 2021, as he was cranking the legs or landing gear of the trailer to which he was seeking to hook to his truck, in order to raise the dollies and make the fifth wheel of the truck slide under it. He related:
I went out and I got in my truck. I done my computer logbook stuff, done my pre-trip inspection, pulled around to hook to my trailer. When I backed up my trailer was too—too low to get hooked to it . . . [o]nce I figured out the trailer was too low, just with my experience, I got as close as I could to the trailer and run the wheels kind of up under it as far as I could. It got a little bit of pressure off the trailer so
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