Stout v. Firststaff, Inc., 020822 ARWC, H006623

• Docket Nº: CLAIM H006623
• Case Date: February 08, 2022
• Court: Kansas

DAISY STOUT, EMPLOYEE CLAIMANT v. FIRSTSTAFF, INC., EMPLOYER RESPONDENT And ZURICH INSURANCE COMPANY/GALLAGHER BASSETT SERVICES, INC., CARRIER/TPA RESPONDENT CLAIM No. H006623 Arkansas Workers Compensation Before the Arkansas Workers' Compensation Commission February 8, 2022          A hearing was held before ADMINISTRATIVE LAW JUDGE KATIE ANDERSON in Little Rock, Pulaski County, Arkansas.           Claimant appeared pro se.           Respondents were represented by Mr. Rick Behring, Jr., Attorney at Law, Little Rock, Arkansas.          OPINION           KATIE ANDERSON ADMINISTRATIVE LAW JUDGE          STATEMENT OF THE CASE          A hearing was held in the above-styled claim on November 10, 2021, in Little Rock, Arkansas. A prehearing telephone conference was conducted on October 6, 2021. Pursuant to the telephone conference, a Prehearing Order was filed on October 8, 2021. The Prehearing Order and the parties’ responsive filings have been marked as Commission’s Exhibit #1 and made a part of the record without objection from the parties.          Stipulations:          During the prehearing telephone conference and/or during the hearing, the parties agreed to the following stipulations. They read:

1. The Arkansas Workers’ Compensation Commission has jurisdiction of the within claim.

2. The employee-employer relationship existed on June 5, 2020, when Claimant sustained a compensable work-related injury to her right great toe and/or foot.

3. Respondents accepted this claim as compensable and paid medical benefits.

4. Claimant’s treating physician, Dr. Robert Martin, released Claimant to return to work without restrictions on September 11, 2020.

5. Claimant sought and obtained a Change of Physician to Dr. Michael Weber. Respondents authorized and paid for the initial visit with Dr. Weber.

6. The parties agreed to hold the issue of average weekly wage and compensation rates in abeyance.^[1]

7. All issues not litigated herein are reserved under the Arkansas Workers’ Compensation Act.

         Issues:          By agreement of the parties, the issues to be litigated at the hearing were as follows:

1. After consideration, Respondents’ Motion to Dismiss is held in abeyance pending the outcome of litigation.

2. Whether Claimant is entitled to additional medical benefits for her right great toe, two (2) adjacent toes, the joints of those toes, and/or her right foot.

3. Whether Claimant is entitled to temporary total disability (TTD) benefits.

         Contentions:          The following contentions were submitted by Claimant:          Claimant essentially contends that on June 5, 2020, while she was stacking boxes of acetone on a wood pallet, the operator of the electric pallet jack slammed the machine into the wood pallet where Claimant was working, causing the machine to malfunction and spin out of control. The electric pallet jack hit Claimant’s right toes/foot. Claimant contends the injury fractured the first three (3) digits of her right foot, caused bruising to her right toes/foot, and caused a sprain to a tendon in her right foot. Claimant contends that she immediately reported the incident to her supervisor. Claimant sought medical treatment after the June 5, 2020, incident at work and was under the care of Dr. Robert Martin at the University of Arkansas for Medical Sciences (UAMS) orthopedic clinic; Dr. Merritt Finney, PA-C at Concentra; and Dr. Michael Weber, orthopedic surgery specialist at OrthoArkansas. Claimant also alleges she attended physical therapy sessions. Claimant contends that she is entitled to compensation for her right toe/foot injury on June 5, 2020.          The following contentions were submitted by Respondents:

1. Respondents accepted as compensable an injury to the right great toe resulting from a specific incident on June 5, 2020. Respondents contend that all appropriate benefits have been paid.

2. Respondents contend that Claimant was released from care and to return to work without restriction on September 11, 2020. Respondents, therefore, contend that Claimant is not entitled to any additional benefits as a result of the compensable injury sustained on June 5, 2020.

3. Claimant is not entitled to any temporary disability benefits. Claimant continued to work (including a second job) and otherwise refused to return to work for the Respondent-Employer.

4. Claimant has not sustained any permanent anatomical impairment as a result of the compensable injury sustained on June 5, 2020.

5. Respondents contend that Claimant’s current physical problems, if any, are unrelated to her employment with Respondent-Employer and instead the result of a pre-existing condition, ordinary disease of life, and/or a subsequent intervening incident.

6. In the alternative, if it is determined that Claimant is entitled to any additional indemnity benefits, Respondents hereby request a set off for all benefits paid by Claimant’s group health carrier, all short-term disability benefits received by Claimant, all long-term disability benefits received by Claimant, and all unemployment benefits received by Claimant.

7. Respondents reserve the right to supplement and/or amend their contentions and assert any applicable defense.

         Summary of Evidence:          The record consists of the hearing transcript of November 10, 2021, and the exhibits contained therein. Specifically, the following exhibits have been made a part of the record. Commission’s Exhibit #1 included the Prehearing Order entered on September 16, 2021, and the parties’ respective responses to the prehearing questionnaire. Respondents’ Motion to Dismiss packet was labeled as Respondents’ Exhibit #1 and consisted of sixty-five (65) pages of Commission forms; Respondents’ Motion to Dismiss; Respondents’ Motion to Compel; Commission’s letter; Commission’s August 17, 2021, Order; Claimant’s production of authorizations; Claimant’s answers to interrogatories; an October 8, 2021, Prehearing Order; Respondents’ Motion for Reconsideration and Motion to Dismiss; and Commission’s October 29, 2021, Order. Respondents’ Non-Medical Records exhibit packet was labeled as Respondents’ Exhibit #2, which consisted of twenty-five (25) pages of documents from the Commission’s file, FirstStaff wage records, and excerpts from unemployment records. The documents proffered by Claimant have not been considered in this matter since they were not made a part of the record pursuant to the parameters set forth in the Prehearing Order.          Witnesses:          During the hearing, Daisy Stout (Claimant, used interchangeably herein), was the only witness to testify.          FINDINGS OF FACT AND CONCLUSIONS OF LAW          After reviewing the evidence and other matters properly before the Commission...