Warren, 072716 ARWC, G600181

Docket Nº:G600181
Case Date:July 27, 2016
No. G600181
Arkansas Workers Compensation
Before the Arkansas Workers’ Compensation Commission
July 27, 2016
         Hearing conducted before ADMINISTRATIVE LAW JUDGE MARK CHURCHWELL, in Little Rock, Pulaski County, Arkansas.           The claimant was PRO SE.           The respondents were represented by HONORABLE GUY WADE, Attorney at Law, Little Rock, Arkansas.           MARK CHURCHWELL, Administrative Law Judge.          STATEMENT OF THE CASE          A hearing was held in the above-styled claim on June 7, 2016, in Little Rock, Arkansas. A Prehearing Order was entered in this case on March 22, 2016. The following stipulations were submitted by the parties in the Prehearing Order and are hereby accepted:
1. The Arkansas Workers’ Compensation Commission has jurisdiction over this claim.
2. The employer/employee/carrier relationship existed on April 30, 2015.
         By agreement of the parties, the issues to be litigated and resolved at the present time were limited to the following:          Claimant:
1. Average weekly wage.
2. Compensability of right shoulder injury on April 30, 2015 by specific incident or by rapid repetitive motion.
3. Temporary disability from May 7, 2015, to a date yet to be determined.
4. Medical treatment incurred to date.
5. Additional medical treatment (including but not limited to additional therapy and return visits to Dr. Rooney).
1. Notice (on August 20, 2015).
2. Evidentiary objections raised at the hearing.
         The record consists of all of the testimony in the transcript of the hearing conducted on June 7, 2016, and all of the exhibits attached thereto. For reasons discussed below, the various evidentiary objections raised at the hearing are each overruled, and all testimony and exhibits proffered at the hearing are hereby accepted into evidence.          FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. The Arkansas Workers’ Compensation Commission has jurisdiction over this claim.
2. The employer/employee/carrier relationship existed on April 30, 2015.
3. The claimant’s average weekly wage of $452.50 per week entitles her to compensation rates of $302.00 per week for temporary total disability and $227.00 per week for permanent partial disability if this claim is found compensable.
4. The preponderance of the evidence establishes that the employer had actual notice of the alleged injury no later than May 5, 2015, and written notice is excused pursuant to Arkansas Code Annotated section 11-9-701(b)(1)(A).
5. The claimant proved by a preponderance of the evidence that she sustained a compensable injury to her right shoulder on April 30, 2015.
6. The claimant has established by a preponderance of the evidence that her office visit to Dr. Rose Shaw-Bullock on May 7, 2015, was reasonably necessary medical treatment related to her compensable right shoulder injury; however, the claimant has not offered into evidence reports of any of the diagnostic testing, surgery, or therapy that she underwent after May 7, 2015, on referral from Dr. Shaw-Bullock, and the claimant has failed to prove by a preponderance of the evidence that her compensable shoulder injury sustained on April 30, 2015, was a factor in the need for the treatment that she received after May 7, 2015.
7. The claimant has established by a preponderance of the evidence that she is entitled to temporary total disability compensation for the period from May 8, 2016, to July 8, 2016; the claimant has failed to establish that she remained within the healing period for her compensable right shoulder injury after July 8, 2016.
         DISCUSSION          The claimant, Marci Warren, was born in 1959, and she was approaching her 56th birthday when she contends that she injured her right shoulder driving a school bus at work on April 30, 2015. (Comm. Exh. 1 p. 2) At that time, she had been a bus driver for the school district since 1994. (T. 32-33) There is no dispute that Ms. Warren had previously injured her right shoulder in a work-related motor vehicle accident in 2006, and she had most recently been prescribed Lorcet for right shoulder pain two weeks before April 30, 2015, on April 16, 2015. (T. 36; R. Exh. 1 p. 69)          Ms. Warren is also a licensed cosmetologist and a licensed CNA. (T. 31, 34) Since 1994, Ms. Warren initially performed some part-time custodial work for the school district, has subsequently at times had jobs as a cosmetologist, and since 2009 has been involved in patient care for Integrity. (T. 32-34)          Ms. Warren had been off work as a bus driver for medical problems unrelated to her shoulder from December 11, 2014, until April 30, 2015. (T. 39-40; R. Exh. 2 p. 19) Before December 11, 2014, Ms. Warren drove a 72 passenger bus. When she returned to drive for the first time on the afternoon of April 30, 2015, she was assigned a 12 passenger bus. (T. 92)          Ms. Warren’s supervisor, Jackie Griffin, testified that Ms. Griffin recalled Ms. Warren coming to Ms. Griffin on May 5, 2015, and explaining that the steering wheel on the 12 passenger bus hurt her arm. (T. 94) Ms. Warren and her husband testified that the symptoms in her right arm changed on April 30, 2015, in that she began to experience for the first time pain running from her shoulder down her arm to her finger on and after April 30, 2015. (T. 39, 44, 45, 46, 47, 48, 56, 71, 77)          Ms. Warren testified that she underwent a DOT physical on May 6, 2015, and received a letter to take in. (T. 12) Ms. Warren testified that she presented to her regular treating physician, Dr. Rose Shaw-Bullock on May 7, 2015. Dr. Shaw-Bullock’s report from that date and a letter she prepared the next day are in evidence. Dr. Shaw-Bullock documented decreased range of motion and severe swelling, indicated that she was scheduling Ms. Warren for an MRI to evaluate her injury, and indicated that Ms. Warren should remain off work for two months until the injury was treated. (C. Exh. 1 p. 20)          Ms. Warren testified that she underwent an MRI and later underwent surgery performed by Dr. Thomas Rooney on her shoulder. (T. 13-15) However, there are no medical reports in evidence describing the results of a 2015 MRI or describing the nature and extent of Dr. Rooney’s surgical findings.          Ms. Warren contends that the respondents are liable for all of the medical treatment that she has incurred for her shoulder since April 30, 2015, and should also be responsible for additional follow-up by Dr. Rooney and for additional physical therapy. Ms. Warren contends that she is entitled to temporary disability from May 7, 2015, through the date of the hearing conducted on June 7, 2016, and continuing to a date yet to be determined. (Comm. Exh. 1 p. 2)          The respondents deny that Ms. Warren sustained any type of compensable shoulder injury on April 30, 2015, and contend that her complaints and any need for treatment are instead related to her pre-existing shoulder condition for which the respondents are not liable. The respondents also contend that Ms. Warren did not claim a work injury and did not provide notice to her employer until August 20, 2015. (Comm. Exh. 1 p. 3)          Issue 1: Evidentiary Objections          Mr. Wade timely objected to a number of types of hearsay evidence offered by Ms. Warren. This hearsay included an audio recording of a conversation between Ms. Warren, Paul Brewer, and Patricia Ausbrooks covering Ms. Warren’s options to resign or be terminated after she could not work and had run out of FMLA. (C. Exh. 2) The proffered hearsay also includes Ms. Warren’s hearing testimony as what Dr. Shaw-Bullock said to or in front of Ms. Warren, what Ms. Warren’s 2015 MRI indicated, what Dr. Rooney said to or in front of Ms. Warren about her shoulder, what the lady at the insurance company said about short term disability, what Ms. Warren said to one of her Integrity clients, and what Morris Plant (a union representative) said to Ms. Warren’s husband. (T. 12-13, 18, 73, 78)          The Arkansas Supreme Court has...

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