Robinson, 091919 ARWC, G900576

• Case Date: September 19, 2019
• Court: Kansas

DEANDRE ROBINSON, EMPLOYEE CLAIMANT RAILROAD SWITCHING SERVICES, INC., EMPLOYER RESPONDENT LM INSURANCE CORP., CARRIER RESPONDENT WCC No. G900576 Arkansas Workers Compensation Before the Arkansas Workers’ Compensation Commission September 19, 2019          Hearing before Administrative Law Judge O. Milton Fine II on July 18, 2019, in Little Rock, Pulaski County, Arkansas.           Claimant represented by Mr. Andy Caldwell, Attorney at Law, Little Rock, Arkansas.           Respondents represented by Mr. Zachary Ryburn, Attorney at Law, Little Rock, Arkansas.           Hon. O. Milton Fine, II Administrative Law Judge.          STATEMENT OF THE CASE          On July 18, 2019, the above-captioned claim was heard in Little Rock, Arkansas. A prehearing conference took place on May 20, 2019. A 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          At the hearing, 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 employee/employer/carrier relationship existed at all relevant times.

3. Respondents have controverted this claim in its entirety.

4. Claimant’s average weekly wage of $600.00 entitles him to compensation rates of $400.00/$300.00.^[1]

5. Claimant furnished notice of her alleged injury on May 26, 2016.

         Issues          At the hearing, the parties discussed the issues set forth in Commission Exhibit 1. Following an amendment of Issue No. 3 at the hearing, they read as follows:

1. Whether Claimant sustained a compensable injury to his right finger and hand.

2. Whether Claimant is entitled to reasonable and necessary medical treatment.

3. Whether Claimant is entitled to temporary total disability benefits from January 21, 2019 to March 4, 2019.

4. Whether Claimant is entitled to a controverted attorney’s fee.

         All other issues have been reserved.          Contentions          The respective contentions of the parties read as follows:          Claimant:

1. Claimant contends that he sustained injuries to his right finger and right hand in the course and scope of his employment and subsequently underwent surgery due to infection from the bite.

2. Respondents controverted the claim.

3. Claimant contends that he is entitled to temporary total disability benefits from the date of injury to a date yet to be determined^[2], medical care and treatment of his right finger and hand, payment of medical bills incurred, mileage, out-of-pocket expenses, and attorney fees.

         Respondents:          1. Respondents contend that Claimant allegedly sustained a spider bite at work. He went to the doctor with a wound and indicated that “there was no precipitating trauma or wound.” The doctor said that he was suspicious that it was a spider bite. The medical opinion on causation is not stated with a reasonable degree of medical certainty and is speculation–not proof. The claimant does not know when or where the wound happened.          2. This is not a compensable claim.          FINDINGS OF FACT AND CONCLUSIONS OF LAW          After reviewing the record as a whole, including medical reports, documents, and other matters properly before the Commission, and having had an opportunity to hear the testimony of 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 not proven by a preponderance of the evidence that he sustained a compensable injury to his right finger and/or his right hand.

4. Because of the above finding, the remaining issues–whether Claimant is entitled to reasonable and necessary medical treatment, temporary total disability benefits and a controverted attorney’s fee–are moot and will not be addressed.

         ADJUDICATION          Summary of Evidence          Claimant was the sole witness.          In addition to the prehearing order discussed above, the other exhibits^[3] admitted into evidence in this case were Claimant’s Exhibit 1, a compilation of his medical records, consisting of one index page and 40 numbered pages thereafter; Claimant’s Exhibit 2, black-and-white photocopies of five photographs of Claimant’s wound; and Respondents’ Exhibit 1, another compilation of Claimant’s medical records, consisting of one index page and eight numbered pages thereafter.          Adjudication          A. Compensability          Introduction.          Claimant has argued that on or around January 15, 2019, he sustained a compensable injury to his right finger and hand in the form of a spider bite. Respondents dispute that he suffered a compensable injury.          Testimony.          Claimant, who is 26 years old and a high school graduate, testified that as of January 15, 2019, he had been employed at Respondent Railroad Switching Services for approximately three to four months. He described his job there as follows:

Well, I guide the engine, guide the engineer, whoever is driving the train, and hook up the cars, get in between the train and hook them up, and tell them how to–where to go and how many to shove back. And take the rock carts from our yard, from the 3M plant, and take them out there to the main yard, and keep swapping them out.

         While hooking the rail cars together, Claimant wears work gloves.          Asked about the date he was purportedly bitten by a spider, Claimant stated that he does not know the exact day. Shown the Form AR-C in evidence that bears an alleged date of injury of January 15, 2019, Claimant related that someone at his employer filled out the form and he only signed it. He testified that prior to the spider incident, on January 16, 2019, he injured his finger in an obvious non-work-related activity: “I was playing basketball at Pine Bluff Arsenal in White Hall, and I dunked the basketball a little harder than usual, and I guess you say jammed my finger, and it just has a little swelling.” Claimant posted on social media that same day that he “broke” his finger. He stated that he made this post before first seeing a doctor.          Per an emergency room record in evidence dated January 18, 2019, Claimant presented with pain and swelling in his right finger on that date and related that it was “from playing basketball.” According to the history in a medical record dated January 21, 2019, Claimant “developed an area of swelling and pain along with ulnar aspect to the right finger on Wednesday, January 16, 2019.” Claimant confirmed the accuracy of this and the history that he went to the emergency room on January 17, 2019. He added that this was for the basketball injury.          However, despite the fact that his medical records do not reflect that he reported a work-related incident that occurred thereafter, he stated that he did suffer an injury on the job “days after” the basketball incident. Claimant testified:

I was at work in the night. It was probably about one o’clock in the morning. We ran . . . I was unhooking the cars to unhook them from the engine. And when I unhooked them from the engine, I felt a pinch from my–in my hand, my right hand, so I snatched my glove and I threw it off, and I walked toward the engine because I couldn’t see anymore, because when I took my glove off, my hat fell. So when I went up to the engine, to the other crew, they turned the light on, and we looked at my hand, and it had–looked like a little spider bite.

         The witness added that he approached the engineer, Ricky King, and the switchman, Keith Lambert. Claimant continued: “Ricky said, he said, ‘Man, it looks like you got bit by a spider.’ And that’s what...