VICKI L. LOWMAN, EMPLOYEE CLAIMANT
M C EXPRESS, LLC, EMPLOYER RESPONDENT
ARKANSAS TRUCKING ASSOCIATION SI FUND/YORK RISK SERVICES GROUP, INC., INSURANCE CARRIER/TPA RESPONDENT
No. G600870
Arkansas Workers Compensation
Before the Arkansas Workers' Compensation Commission
February 23, 2017
Hearing
before Chief Administrative Law Judge David Greenbaum on
January 13, 2017, at Jonesboro, Craighead County, Arkansas.
Claimant represented by Mr. Phillip J. Wells,
Attorney-at-Law, Jonesboro, Arkansas.
Respondents represented by Mr. Guy Alton Wade,
Attorney-at-Law, Little Rock, Arkansas.
DAVID
GREENBAUM, Chief Administrative Law Judge.
STATEMENT
OF THE CASE
A
hearing was conducted on January 13, 2017, to determine
whether the claimant sustained a compensable right shoulder
injury arising out of and during the course of her employment
with M C Express, resulting from an admitted work incident.
A
prehearing conference was conducted in this claim on November
9, 2016, and a Prehearing Order was filed on November 9,
2016. At the hearing, the parties stated that the
stipulations, the issues, as well as their respective
contentions were correctly set out in the Prehearing Order,
subject to a minor clerical correction concerning the
applicable compensation rates. A copy of the November 9,
2016, Prehearing Order was introduced, without objection, as
"Commission's Exhibit 1."
It was
stipulated that the employee/employer/carrier relationship
existed at all relevant times, including January 21, 2016;
that the claimant sustained compensable injuries to her back
and right arm as the result of a specific incident on said
date; that she earned sufficient wages to entitle her to
compensation rates of $628.00 per week for temporary total
disability and $471.00 per week for permanent partial
disability; and that respondents had controverted
compensability of an alleged right shoulder injury as the
result of the admitted work incident.
By
agreement of the parties, the primary issue presented for
determination was whether the claimant sustained a right
shoulder injury as the result of the admitted incident. If
overcome, claimant's entitlement to associated benefits
must be addressed.
Claimant
contended, in summary, that as a direct result of her fall on
January 21, 2016, she sustained a right rotator cuff tear in
her shoulder; that she was entitled to temporary total
disability benefits for the period beginning June 17, 2016,
and continuing through the present while maintaining that her
healing period had not ended; that respondents should be held
responsible for all medical and related treatment for the
right shoulder, including, but not limited to surgery,
together with continued, reasonably necessary medical
treatment; and that a controverted attorney's fee should
attach to any benefits awarded.
The
respondents contended that the claimant did not sustain an
injury to her right shoulder as the result of the admitted
work accident and that any shoulder complaints pre-existed
the work injury and were not the responsibility of
respondents.
At the
scheduled hearing, the claimant testified in her own behalf.
Fred Fraser and Arlette Williams were called as witnesses by
the respondent. The record is composed solely of the
transcript of the January 13, 2017, hearing containing
numerous exhibits.
From a
review of the record as a whole, to include medical reports,
documents and other matters properly before the Commission,
and having had an opportunity to hear the testimony of the
witnesses and to observe their demeanor, 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. The
stipulations agreed to by the parties are hereby accepted as
fact.
3. The
claimant has proven, by a preponderance of the credible
evidence, that in addition to her admitted injuries, she also
sustained a right shoulder injury as the result of her slip
and fall on January 21, 2016, entitling her to appropriate
benefits for the right shoulder claim.
4. The
claimant has proven, by a preponderance of the evidence, that
she is entitled to temporary total disability benefits
beginning June 17, 2016, and continuing through the date of
the within hearing and until such time as her healing period
is determined to have ended. The claimant's healing
period had not ended as of January 13, 2017.
5.
Respondents are responsible for all medical and related
treatment as the result of the claimant's right shoulder
injury, including, but not limited to right shoulder surgery,
and respondents remain responsible for continued, reasonably
necessary medical treatment.
6.
Issues not addressed herein are specifically reserved.
DISCUSSION
The
material facts in this claim are primarily undisputed. As
reflected by the stipulations, and as will be set out further
below, it is undisputed that the claimant sustained
compensable injuries to her back and right arm as the result
of a specific incident identifiable in time and place of
occurrence when she slipped on some ice and fell, landing on
her hands and knees. The incident was promptly reported to
the employer. Further, respondents exercised good faith in
meeting its obligations under our workers' compensation
laws by providing the claimant with prompt, reasonably
necessary medical treatment after she returned to Arkansas
following a road-trip to multiple states as a truck driver
for the employer herein. It is further undisputed that upon
obtaining medical treatment from the company doctor, the
claimant voiced complaints of pain in her low back and right
arm, including complaints of numbness in the entire right
hand going up her right arm. Subsequent medical treatment
reflected that the claimant's complaints were related to
a possible rotator cuff tear which was confirmed by an MRI,
requiring surgical correction. Respondents maintained that
the claimant's right shoulder injury was not the result
of the admitted accident, but, rather related to a
pre-existing work injury. However, the record reflects that
the claimant's prior injury was a minor injury to the
left shoulder rather than the right shoulder. All of the
credible evidence of record reflects that the claimant's
right shoulder injury was directly and causally related to
the January 21, 2016, slip and fall.
The
claimant, Vicki L. Lowman, testified in her own behalf. On
and before January 21, 2016, the claimant worked for the
respondent employer as an over-the-road truck driver. The
claimant was employed by the respondent for approximately
thirteen (13) years. The claimant stated that during the
course of her employment, she had slipped on the ice several
times previously. In fact, the claimant candidly acknowledged
that she sustained a prior injury with the employer herein
during 2013 when, "I slipped and landed on my butt and
left shoulder, elbow." The claimant stated that the 2013
incident resulted in a workers' compensation claim; that
following the incident, she missed approximately two (2)
weeks of work, after which she returned to work for the
employer herein without any further complaints and/or any
physical limitations until January 21, 2016. (Tr.9-10)
The
claimant's description of the January 21, 2016, incident,
its prompt reporting, as well as the claimant's initial
medical treatment, is set out below:
Q And if you would, in your own words describe to the Judge
what happened on January the 21st of
...
