Wolfe v. First Fleet, Inc., 110718 ARWC, G705807

• Case Date: November 07, 2018
• Court: Arkansas

JOHN D. WOLFE, Employee, CLAIMANT v. FIRST FLEET, INC., Employer, RESPONDENT COTTINGHAM & BUTLER CLAIMS SERVICES, INC. Insurance Carrier/TPA, RESPONDENT WCC No. G705807 Arkansas Workers Compensation Before the Arkansas Workers' Compensation Commission November 7, 2018          Hearing before ADMINISTRATIVE LAW JUDGE ERIC PAUL WELLS in Fort Smith, Sebastian County, Arkansas.           Claimant represented by MICHAEL L. ELLIG, Attorney, Fort Smith, Arkansas.           Respondents represented by WILLIAM C. FRYE, Attorney, North Little Rock, Arkansas.           ERIC PAUL WELLS ADMINISTRATIVE LAW JUDGE.          STATEMENT OF THE CASE          On August 9, 2018, the above captioned claim came on for a hearing at Fort Smith, Arkansas. A pre-hearing conference was conducted on June 6, 2018, and a Pre-hearing Order was filed on that same date. A copy of the Pre-hearing Order has been marked Commission's Exhibit No. 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 this claim.          2. On all relevant dates, the relationship of employee-employer-carrier existed between the parties.          3. The claimant sustained a compensable injury to his low back on August 9, 2017.          4. The claimant is entitled to a weekly compensation rate of $661.00 for temporary total disability and $496.00 for permanent partial disability.          By agreement of the parties the issues to litigate are limited to the following:          1. Whether claimant is entitled to medical treatment as recommended by Dr. James Blankenship.          2. Whether claimant is entitled to temporary partial disability benefits from May 28, 2018 to July 4, 2018; whether claimant is entitled to temporary total disability benefits from July 5, 2018 to July 22, 2018; and whether claimant is entitled to temporary partial disability benefits from July 23, 2018 to a date yet to be determined.          3. Whether claimant’s attorney is entitled to an attorney’s fee.          The claimant's contentions are as follows:

“The claimant contends that the medical services that have been recommended by Dr. Blankenship constitute reasonable necessary medical services for his compensable injury and should be the liability of the respondents. The claimant further contends that he is entitled to temporary total or temporary partial disability benefits from August 10, 2017 through a date yet to be determined. The claimant finally contends that his attorney is entitled to the statutory fee on all indemnity benefits herein and herein after awarded.”

         The respondents’ contentions are as follows:

“Respondents accepted a back strain as compensable. The claimant was treated conservatively with physical therapy and injections without improvement. He then underwent an Independent Medical Evaluation with Dr. Luke Knox, who felt the claimant was engaging in symptom magnification. Dr. Knox placed the claimant at maximum medical improvement on May 4, 2018, and sent the claimant for a Functional Capacity Evaluation. During this time period, claimant was receiving temporary partial disability in the sum of $384.00.

Respondents contend that the medical treatment recommended by Dr. Blankenship is not reasonable and/or necessary. That the claimant reached maximum medical improvement on May 4, 2018, and is not entitled to temporary total disability or temporary partial disability benefits. Further, that the claimant is not entitled to a permanent impairment rating.”

         The claimant in this matter is a 44-year-old male who is employed by the respondent as a truck driver. The claimant sustained an admittedly compensable low back injury on August 9, 2017. At that time, the claimant had worked for the respondent for about eight years. At the hearing in this matter, the claimant was asked on direct examination about his job duties as follows:

Q Would you describe for the Judge what your job with the First Fleet involved.

A I worked out of the Springdale terminal. I was assigned to the Georgia-Pacific Recycling, the Harmon Recycling facility, and my job required me to pick up loads in the local area, take them back to the plant for processing, and then move them to Muskogee to their big GP plant in Muskogee.

On a normal day, I'd put all the trailers in the door and then go around and drop and hook and pick up loaded trailers and drop off empty trailers at customers.

Q And how many hours did you work a day?

A It depended on the day, but between 10 and sometimes I max out my logbook at 14.

Q And how many hours would you be driving?

A There again, depending on the day, between six and ten.

Q And how many times would you have to get in and out of the cab of your semi per day?

A Probably 50 to 60 times, at least.

Q And how many times would you switch trailers a day, approximately?

A It would be up to 30, depending on how many times I had to move trailers in the yards and stuff.

Q Did you essentially live out of your truck during --

A Yes, sir.

Q -- your workweek?

A Yes. The contract required the driver to be on site, so what I would do is I would leave my house in Ozark on Monday and then stay in my truck Monday through Friday and then go back home on Fridays.

Q And what were you being paid at the time of the accident and injury?

A It was a salary pay. It was $200 a day base pay.

Q If their records show that your average weekly wage was $996, does that sound about right?

A Yes. Yes.

         The claimant also gave direct examination testimony about his injury, his reporting of that injury, and the events that shortly followed. That testimony is as follows:

Q Would you describe the accident and injury for the Judge.

A Yes, sir. I had pulled into a drop yard up in Bentonville, at a Walmart, which is one of our customers, and I got out like I always did. I walked back to the back of the trailer and reached down to pull the pin on the slide for the tandems. I jerked on it several times. It didn't come loose. I put both hands on it and I jerked and jerked and jerked and finally when it popped loose, it kind of released and when it released, I just felt a really sharp pain on the left side of my back down by my beltline. And I went to my knees and then I crawled back to my truck.

Q Did you report this accident and injury to First Fleet?

A Yes, sir. I reported it to Dave Huthart (phonetic), which is my terminal manager. He told me to go ahead because I was at a place where I was going to go to bed anyway. He told me to go to bed and wait until the morning and call Kerry Pritchard.

Q Did you stay in your truck that night?

A Yes, sir.

Q Did you call Ms. Pritchard the next morning?

A Yes, sir. Then she referred me to the Portland terminal to go through the process of reporting the accident.

Q And after you reported the accident, were you sent somewhere for the medical care?

A Yes, sir. I think it is called the Arkansas Occupational Health in Springdale.

Q And what did they do for you?

A I saw the nurse practitioner. I think her last name was

Rice. She saw me. She basically told me to go home

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