Nolen v. Walmart Associates, Inc., 093019 ARWC, G804149

• Case Date: September 30, 2019
• Court: Kansas

FRED A. NOLEN, EMPLOYEE CLAIMANT v. WALMART ASSOCIATES, INC., EMPLOYER RESPONDENT WALMART ASSOCIATES, INC/CLAIMS MANAGEMENT, INC., INSURANCE CARRIER/TPA RESPONDENT Claim No. G804149 Arkansas Workers Compensation Before the Arkansas Workers' Compensation Commission September 30, 2019           Hearing before the Arkansas Workers' Compensation Commission (the Commission), Administrative Law Judge (ALJ) Mike Pickens, in El Dorado, Union County, Arkansas.           The claimant was represented by the Honorable F. Mattison Thomas, III, Attorney at Law, El Dorado, Union County, Arkansas.           The self-insured respondent was represented by the Honorable R. Scott Zuerker, Ledbetter Law Firm, Fort Smith, Sebastian County, Arkansas.           OPINION AND ORDER           Mike Pickens, Administrative Law Judge.          INTRODUCTION          In the Prehearing Order filed January 31, 2019, the parties agreed to the following stipulations, which they modified and affirmed at the hearing:

1. The Arkansas Workers' Compensation Commission (the Commission) has jurisdiction over this claim.

2. The employer/employee/carrier-TPA relationship existed at all relevant times including June 15 and 16, 2018, the date(s) of the claimant's alleged injuries.

3. The claimant's average weekly wage (AWW) is $522.44, corresponding to weekly indemnity rates of $348.00 for temporary total disability (TTD), and $261.00 for permanent partial disability (PPD) benefits.

4. The respondents have controverted this claim in its entirety.

(Comms'n Exhibit A at 1-2; Hearing Transcript at 4-5).          By agreement of the parties, the issues litigated at the hearing were:          Whether the claimant's alleged injuries - an intestinal bleed which allegedly resulted in a fall wherein he injured his forehead and right knee - constitute a "compensable injury(ies)" as that term is defined in the Arkansas Workers' Compensation Act (the Act);

2. Whether the claimant is entitled to payment of medical benefits, and TTD benefits from June 22 - October 22, 2018; and

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. A at 2).          The claimant contends that on the late evening and/or early morning of June 15-16, 2018, he sustained an "intestinal bleed" within the course and scope of his employment as a stocker with Walmart. The claimant contends this alleged work-related "intestinal bleed" resulted in him falling and hitting and injuring his forehead and right knee. He contends he is entitled to payment of medical, and TTD benefits from June 22 - October 22, 2018, as well as a controverted attorney's fee. The claimant specifically reserves any and all other issues for future litigation and/or determination. (Comms'n Ex. A at 2-3).          The respondents contend the claimant cannot meet his burden of proof under the Act in demonstrating his "intestinal bleed," or his alleged forehead, and left knee injuries constitute "compensable injury(ies)" within the meaning of the Act. The respondents reserve the right to assert additional defenses after completion of necessary investigation and discovery. (Commission's Ex. A at 3).          The record consists of the hearing transcript of the September 25, 2019, hearing, and the documents contained therein. The claimant's oral deposition was taken under oath on February 8, 2019. It has been made a part of the record. It has been marked "Joint Exhibit 1" and is retained in the Commission's file.          STATEMENT OF THE CASE          The claimant, Mr. Fred A. Nolen, was sixty-two (62)-years old at the time of the alleged injury, sixty-three (63) years old at the time of the hearing. At the time of the alleged injuries he was working as a night stocker at Walmart in Camden, Arkansas. His normal shift was from 10:00 P.M. to 7:00 - 8:00, or 8:30 A.M. On Thursday and Friday, which was in the late evening hours of June 14^th, and early morning of June 15, 2018, the claimant was moving "a lot of water." (Tr. at 9). The claimant described his workload during this period of time to be "unusually heavy," although he had moved and re-stocked water, bags of dog food, and other such products in the past, as well as after the date of the alleged injury. (Tr. at 10-15; 35-36).          After he got home from work on Saturday, June 16, 2018, the claimant experienced a "gurgling" in his stomach, went to the restroom, and noticed blood in his stool. He had never experienced blood in his stool before. While he did not testify as to any specific incident wherein he felt a pull, strain, or any pain at work at any time between June 14^th - 16^th, the claimant attributed the bleeding to his "straining with the dog food, moving the dog food..." and water at work sometime between June 14^th - 16^th, apparently most likely during his June 15^th - 16^th shift. (Tr. at 9-19). The claimant went to the restroom at home two (2) more times that Saturday, June 16^th, and each time noticed blood in his stool. (Tr. at 17-18). He believed he had sustained an "internal injury" when he was moving the product(s) at work sometime between June 14^th and 16^th, most likely during his June 15^th - 16^th shift, which he has...