TERESA SARNO-LISTY, Employee CLAIMANT
v.
BENTONVILLE SCHOOL DISTRICT, Employer RESPONDENT
And
ARKANSAS SCOOL BOARDS ASSOC. WCT, Carrier/TPA RESPONDENT
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...
