Kazlaskas, 021218 ARWC, G706107

• Case Date: February 12, 2018
• Court: Kansas

CHERYL M. KAZLASKAS, EMPLOYEE CLAIMANT ARKANSAS DEPARTMENT OF CORRECTION, SELF-INSURED EMPLOYER RESPONDENT PUBLIC EMPLOYEE CLAIMS DIVISION, TPA RESPONDENT No. G706107 Arkansas Workers Compensation Before the Arkansas Workers’ Compensation Commission February 12, 2018           7/31/2017          Hearing before CHIEF ADMINISTRATIVE LAW JUDGE ANDREW L. BLOOD, on December 28, 2017, at Newport, Jackson County, Arkansas.           Claimant represented by the HONORABLE ANDY L. CALDWELL, Attorney-at-Law, Little Rock, Arkansas.           Respondent represented by the HONORABLE CHARLES H. McLEMORE, Attorney-at-Law, Little Rock, Arkansas.           ANDREW L. BLOOD, Chief Administrative Law Judge.          STATEMENT OF THE CASE          A hearing was conducted in the above-styled claim to determine the claimant’s entitlement to workers’ compensation benefits. On October 30, 2017, a prehearing conference was conducted in this claim, from which a Prehearing Order of the same date was filed. The Prehearing Order reflects stipulations entered by the parties, the issues to be addressed during the course of the hearing, and the contentions of the parties relative to same. The Prehearing Order is herein designated a part of the record as “Commission Exhibit #1.”          The testimony of Cheryl Kazlaskas, Gary Kazlaskas, Morgan Jaco, Timothy Craig, and James R. Hill, along with January 8, 2018, deposition testimony of Mindy Howard, coupled with medical reports and other documentary evidence, comprise the record in this claim. With the deposition of Ms. Mindy Howard having been obtained and made a part of the record, those documents authored by her and previously proffered during the hearing are now included as exhibits in the hearing record.          DISCUSSION          Cheryl Kazlaskas, the claimant, with a date of birth of March 24, 1983, is a 2001 high school graduate with additional education in criminal justice. The claimant commenced her employment with the respondent in June, 2017, when she started at the academy. The claimant worked as a correctional field sergeant, supervising inmates in the garden by horseback. The claimant testified regarding the specific training she underwent as horse riding officer:

I had to do the regular correctional officer academy, the full five weeks of all the defensive tactics, chemical agent qualification, firearms, and then whenever I got to the facility, specifically for the field sergeant job I had to do a horseback. I had to have 40 hours in the saddle shadowing another sergeant, so I did that on the Grimes yard, or garden, and then the week before the injury was the first time that I was on the McPherson site and I was still shadowing. I didn't have my own work crew until Monday. (T. 44-45)

         The claimant normally worked at the McPherson Unit of respondent.          The claimant confirmed that she injured herself at home moving. Regarding the specifics of the afore, the claimant testified:

We had to move an entire household in two weekends, so we got a U-Haul, we got everything loaded, got everything unloaded the next day. I was very sore from the move. I had some back pain, not severe back pain, but enough that I can't sit on a horse for eight hours, I can't do my job effectively.

I have a weapon, I'm responsible for it, responsible for the inmates. It was not a smart choice to go to work that day, so I called in. I told them that my back was hurting because of that, and they told me that was fine.

The next day I still wasn't up to doing the job so I called in. They told me I needed to get a doctor's note because I was running out of paid time off. I used it all during the move.

So I went to the doctor, told them that I was experiencing the pain, that I felt it was from the move. That doctor prescribed me -- I don't remember what she gave me, but they gave me a prescription and it didn't help, so I had to go back to the doctor, because I missed work again because what she gave me wasn't effective.

So I saw a different doctor, and that doctor speculated that it was more than just -- He said he thought it was probably a bulging disc, which is why the Facebook post said that, but no x-ray, no MRI, nothing was done. That was his guess. And so he prescribed me a different pain medication.

He prescribed me a steroid to help with the inflammation, and he said, "If you continue to have problems after this," he's like, "we'll go further, but right now I think this will deal with the situation."

So he gave me that and it helped and I was feeling great, and so I told them I wanted to come back to work, and Mindy said I couldn't come back to work without an Essential Job Functions form filled out. (T. 45-47)

         The claimant identified Mindy as Mindy Howard, the HR manager.          The claimant testified that she does not have direct knowledge that she had a bulging disk at any time before July 31, 2017. The claimant confirmed that she submitted an Employee Leave Request in connection with a back complaint associated with the moving, and that she was told that she could not return to work without the Essential Job Functions form marking yes on everything on the document. The claimant asserts that by the time she received the clearance from Sherwood Urgent Care she was feeling very good.          The claimant testified that her typical shift at respondent was Monday through Friday, 5:30 a.m. to 1:00 p.m. As to her rate of pay, the claimant offered that she thought it was a salary – between $16.00 and $18.00 per hour. The claimant did not return to work at respondent following the July 31, 2017, incident.          The claimant confirmed the July 25, 2017, record of the Batesville Sherwood Urgent Care Clinic, which reflects that she presented a history of onset of complaint two (2) days earlier with dull pain to her left lower back that radiated to her leg. The claimant denied having muscle spasms at the time of the clinic visit. The testimony of the claimant reflects that she was released to return to work during the Friday, July 28, 2017, visit. The claimant denied that she did anything to hurt herself during the weekend.          The claimant testified that she returned to work on Monday, July 31, 2017:

I clocked in, went down to the barn, saddled my horse, got on my horse, rode down to – Got on my horse, rode down, got my inmates, went and worked in the field with them, and then we had to do heat lay-ins where you take inmates that are new to the field because of the heat, you have to take them back to prevent heat exhaustion and things of that nature. So I escorted my group of inmates back to the sally port to let them back in, and we had to wait for the sally port to come open, so I had the inmates sitting back-to-back in front of me. I had my back to the parking lot, and I was watching my inmates on my horse. (T. 52-53)

         The claimant testified that she had her back to the parking lot when she heard what sounded like a loud bang. The claimant continued:

So the loud bang scared my horse and my horse spooked, and when she spooked, she went very quickly to the right, and I started to fall off to the left.

         I did not actually fall off, I caught myself. (T. 53).          The claimant testified that there were no other employees of the respondent present supervising the inmates directly with her at the time of the incident. The claimant’s testimony that she saw Sergeant Jaco in the general vicinity off in the distance. As to whether Sergeant Jaco’s horse was spooked by the loud noise, the claimant offered:

When I collected my horse and I looked up to see her, it appeared to me that she had just collected her horse. I didn't actually see the horse spook, but it looked like she was doing a correction move with her horse, which is the same thing that I just did with mine when it spooked. (T. 54)

         The claimant testified that after making the corrective move with her horse, as she sit in the saddle and waited to get the inmates in, she began to experience muscle spasms:

Yes. Whenever I corrected myself, it was a very distinct pain. And I tried to ignore it because I had no choice, and the longer I sat there in the saddle, the more the spasms intensified. (T. 55)

         The claimant asserts that she never had muscle spasms in connection with the moving incident at home, and that the pain was different from that involving the moving. The claimant continued, regarding the July 31, 2017, incident:

I continued to supervise my inmates. When they were able to go into the sally port I rode my horse back to the

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