Sarno-Listy v. Bentonville School District, 032421 ARWC, G907985

Docket NºCLAIM G907985
Case DateMarch 24, 2021
CLAIM NO. G907985
Arkansas Workers Compensation
Before the Arkansas Workers' Compensation Commission
March 24, 2021
          Hearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Springdale, Washington County, Arkansas.           Claimant represented by JASON M. HATFIELD, Attorney, Springdale, Arkansas.           Respondents represented by JAMES A. ARNOLD, II, Attorney, Fort Smith, Arkansas.           GREGORY K. STEWART ADMINISTRATIVE LAW JUDGE          STATEMENT OF THE CASE          On February 10, 2021, the above captioned claim came on for hearing at Springdale, Arkansas. A pre-hearing conference was conducted on December 2, 2020 and a pre-hearing order was filed on that same date. A copy of the pre-hearing order has been marked as Commission’s Exhibit #1 and made a part of the record without objection.          At the pre-hearing conference the parties agreed to the following stipulations:          1. The Arkansas Workers’ Compensation Commission has jurisdiction of the within claim.          2. The employee/employer/carrier relationship existed between the parties on November 6, 2019.          3. The claimant sustained a compensable injury to her low back on November 6, 2019.          4. The claimant was earning an average weekly wage of $364.06 which would entitle her to compensation at the weekly rates of $243.00 for total disability benefits and $182.00 for permanent partial disability benefits.          5. Respondents paid benefits through November 2, 2020.          At the pre-hearing conference the parties agreed to litigate the following issues:          1. Additional medical treatment as recommended by Dr. Blankenship.          2. Additional temporary total disability benefits.          3. Attorney fee.          At the time of the hearing claimant clarified that she is requesting temporary total disability benefits beginning November 1, 2020 and continuing through a date yet to be determined.          The claimant contends she sustained a compensable injury while working for respondent on or about November 6, 2019. At that time, claimant was in the course and scope of her employment when she injured her low back. Claimant exercised her change of physician and the Workers’ Compensation Commission ordered her to see Dr. Blankenship. The current authorized treating physician is Dr. Blankenship, and he has tried conservative measures including steroid injections. Dr. Blankenship has now recommended surgery.          The respondents contend that to the extent the claimant is or was entitled to any workers’ compensation benefits, all appropriate benefits have been paid. Respondents deny that the claimant is entitled to additional compensation benefits of any kind after November 2, 2020.          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 witness and to observe her demeanor, the following findings of fact and conclusions of law are made in accordance with A.C.A. §11-9-704:          FINDINGS OF FACT & CONCLUSIONS OF LAW          1. The stipulations agreed to by the parties at a pre-hearing conference conducted on December 2, 2020 and contained in a pre-hearing order filed that same date are hereby accepted as fact.          2. Claimant has met her burden of proving by a preponderance of the evidence that the medical treatment recommended by Dr. Blankenship is reasonable and necessary medical treatment for her compensable injury.          3. Claimant has met her burden of proving by a preponderance of the evidence that she is entitled to temporary total disability benefits from November 3, 2020 through a date yet to be determined.          4. Respondent has controverted claimant’s entitlement to all unpaid indemnity benefits.          FACTUAL BACKGROUND          The claimant has a history of prior low back pain following motor vehicle accidents. The first motor vehicle accident was in 2009 and the second on June 8, 2016. As a result of the second accident, claimant sought chiropractic treatment from Dr. Scott Van Wilpe beginning on November 14, 2016. Dr. Van Wilpe’s medical records were submitted into evidence and showed that he treated claimant more than twenty times. In his report of March 14, 2017, Dr. Van Wilpe stated that the claimant had indicated:
I feel like I am almost back to normal. I am ready for re-exam.
         In his report of March 16, 2017, Dr. Van Wilpe indicated that claimant was reporting a 95 to 99% improvement overall. Finally, in his report dated March 27, 2017, Dr. Van Wilpe stated that claimant still had some mild residual symptomatology but stated that she had reached maximum medical improvement for the injuries she suffered as a result of the motor vehicle accident on June 8, 2016. Claimant testified that after she was released from chiropractic care she was careful with lifting and doing things because she did not want to reinjure her back. She stated that she gradually resumed normal activities such as biking, hiking, and walking. There is no indication that claimant sought any additional medical treatment for her low back after this release by Dr. Van Wilpe until after her injury with respondent on November 6, 2019.          The claimant began working for respondent as a substitute teacher in the Spring of 2017. After some additional training claimant began working for respondent as a paraprofessional in January 2019. As a paraprofessional the claimant worked one on one with students, helping them with lifting, toileting, and daily activities at school.          In November 2019 claimant was working with a student that weighed 47 pounds. That student would arrive at school in a bus in a “star” seat – similar to a booster seat. Claimant was required to get the student out of the “star” seat and put her in a mobilized wheelchair. Claimant was in the process of transferring the student on November 6, 2019, when she was hit from behind by a first grade student.
Q. When you were hit from behind, were you in the act of lifting and twisting?
A. Yes.
Q. Did you have her full weight?
A. Yes.
Q. And what kind of pain or - - what did you feel?
A. The best way to describe it is like a sharp stabbing pain in my back, like below my pant line.
         Claimant reported the injury which was accepted by the respondent and sent for medical...

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