BEFORE THE ARKANSAS WORKERS COMPENSATION COMMISSION CLAIM NO. G DAVID CONWAY, EMPLOYEE FIRESTONE BUILDING PRODUCTS, LTD.

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1 BEFORE THE ARKANSAS WORKERS COMPENSATION COMMISSION CLAIM NO. G DAVID CONWAY, EMPLOYEE FIRESTONE BUILDING PRODUCTS, LTD., EMPLOYER OLD REPUBLIC INSURANCE CO./SEDGWICK CLAIMS MANAGEMENT SERVICES, INC., INSURANCE CARRIER/TPA CLAIMANT RESPONDENT RESPONDENT OPINION FILED SEPTEMBER 18, 2015 Hearing conducted before ADMINISTRATIVE LAW JUDGE MARK CHURCHWELL, in Texarkana, Miller County, Arkansas. The claimant was represented by HONORABLE GREGORY R. GILES, Attorney at Law, Texarkana, Arkansas. The respondent was represented by HONORABLE GAIL K. PONDER GAINES, Attorney at Law, Little Rock, Arkansas. STATEMENT OF THE CASE A hearing was held in the above-styled claim on August 6, 2015, in Texarkana, Arkansas. A Prehearing Order was entered in this case on May 12, The following stipulations were submitted by the parties either in the Prehearing Order or at the start of the hearing and are hereby accepted: 1. The Commission has jurisdiction. 2. The employee/employer relationship existed at all relevant times, including August 15, 2014 and October 9, This claim has been controverted in its entirety. 4. Claimant s average weekly wage of $ entitles him to compensation rates of $ per week for temporary total disability and $ per week for permanent partial disability. (T. 7)

2 2 By agreement of the parties, the issues to be litigated and resolved at the present time were limited to the following: 1. Compensation rate if necessary. (Resolved by stipulation) 2. Whether Claimant sustained a compensable injury on or about August 15, 2014 to his right shoulder. 3. Whether Claimant is entitled to temporary total disability benefits from on or about November 20, 2014 to a date yet to be determined. 4. Whether the medical treatment Claimant has had since on or about August 15, 2014 has been reasonable, necessary and related to his compensable injury such that Respondents should be ordered to pay for same. 5. Whether Claimant is entitled to additional medical treatment including the surgery being recommended by Dr. Darius Mitchell. 6. Attorney s fees. The record consists of three volumes: (1) the August 6, 2015, hearing transcript and the exhibits contained therein; (2) the August 6, 2015, deposition transcript of Margaret Haynie marked Claimant s Exhibit 2; and (3) the August 6, 2015, deposition transcript of Allison Howard marked Respondent s Exhibit 3. FINDINGS OF FACT AND CONCLUSIONS OF LAW 1. The Commission has jurisdiction. 2. The employee/employer relationship existed at all relevant times, including August 15, 2014 and October 9, This claim has been controverted in its entirety.

3 3 4. The claimant has failed to establish by a preponderance of the evidence that he sustained a compensable injury. DISCUSSION The primary issue in this case is whether Mr. Conway sustained a compensable right shoulder injury on or about August 15, Mr. Conway began working for Firestone Building Products in January of (T. 16) There is no indication in a pre-employment physical performed in January of 2012 that Mr. Conway was at that time having any shoulder difficulties. (C. Exh. 1 p. 4-7) In fact there is no evidence that Mr. Conway was ever having any medical problems of any type until the summer of In August of 2014, Mr. Conway worked the 11:00 to 7:00 shift at Firestone in G Bay in the production of rolled roofing. (T. 17, 160) His job title at that time was trucker ; his work in G Bay required Mr. Conway to work with rolls of rubber at least 50 feet long. (T. 18) Mr. Conway s crew chief in G Bay until the middle of September of 2014 was Mr. Doricko Henry. (T. 100) The third shift Production Supervisor over the Finishing Department, which included G Bay, was Mr. Tony Gulley. (T. 160, 187) Mr. Gulley supervised approximately 44 employees. (T. 178) The evidence which appears to this examiner to most strongly support Mr. Conway s claim that he injured his shoulder at work in August includes his hearing testimony

4 4 that (1) he experienced tingling, burning and soreness while pulling rubber at work, and (2) he told Mr. Henry and Mr. Gulley that same day that he was pulling on the roller and hurt his shoulder. (T ) In addition, Mr. Conway presented to the Wadley Regional Medical Center at Hope on September 15, 2014, after missing two days of work due to shoulder problems. (C. Exh. 1 p. 12) The nurse s triage notes at that visit appear to significantly corroborate in some respects Mr. Conway s testimony, stating: Presenting complaint: Patient states: rt, shoulder pain, injury at work, pulling at work, firestone, a month ago reported to supervisor. Transition of care: patient was not received from another setting of care. (C. Exh. 1 p. 10) Margaret Haynie, a friend and former co-worker, likewise testified in part that she recalled Mr. Conway telling her that he hurt his shoulder while pulling down on the rubber that he had to load upon the pull-out. (C. Exh. 2 p. 13) By contrast, for their parts, Mr. Henry and Mr. Gulley deny having received any information until after the Wadley hospital visit in September about Mr. Conway ever claiming to have sustained a work-related shoulder injury in August. For his part, Mr. Henry testified that he recalled Mr. Conway coming up to Mr. Henry one night to say that his shoulder was hurting. However, according to Mr. Henry, Mr.

5 5 Conway never indicated that he had injured himself at work, and when asked that night, Mr. Conway did not want to report an incident. Mr. Henry testified that Mr. Conway instead stated that night that I might have slept on it wrong. (T. 101) For his part, Mr. Gulley testified that Mr. Conway never even said anything to Mr. Gulley about his shoulder hurting until a disciplinary meeting in September related to Mr. Conway having missed two days of work in September before he went to the doctor. (T. 161) To prove the occurrence of a compensable injury as a result of a specific incident which is identifiable by time and place of occurrence, the claimant must establish by a preponderance of the evidence: (1) that an injury occurred arising out of and in the scope of employment; (2) that the injury caused internal or external harm to the body which required medical services or resulted in disability or death; (3) that the injury is established by medical evidence supported by objective findings, as defined in Ark. Code Ann (16); and (4) that the injury was caused by a specific incident and is identifiable by time and place of occurrence. Mikel v. Engineered Specialty Plastics, 56 Ark. App. 126, 938 S.W.2d 876 (1997). A claimant is not required to establish the causal connection between a work-related incident and an injury by either expert medical opinion or objective medical evidence.

6 6 See, Wal-Mart Stores, Inc. v. VanWagner, 337 Ark. 443, 990 S.W.2d 522 (1999). In fact, the Arkansas Courts have long recognized that a causal relationship may be established between an employment-related incident and a subsequent physical injury based on evidence that the injury manifested itself within a reasonable period of time following the incident so that the injury is logically attributable to the incident, where there is no other reasonable explanation for the injury. Hall v. Pittman Construction Co., 235 Ark. 104, 357 S.W.2d 263 (1962); Harris Cattle Company v. Parker, 256 Ark. 166, 506 S.W.2d 118 (1974). However, if the disability does not manifest itself until months after the accident, so that reasonable men might disagree about the existence of a causal connection between the accident and disability, the issue becomes a question of fact for the Commission's determination. Kivett v. Redmond Co., 234 Ark. 855, 355 S.W.2d 172 (1962). With regard to the specific incident requirement, I note that in Cedar Chemical Company V. Knight, 372 Ark. 233, 273 S.W.3d 472 (2008), the Arkansas Supreme Court affirmed the Full Commission s award of benefits for a knee injury caused by a specific incident under circumstances where the worker was required to ascend and descend multiple flights of stairs multiple times per shift; the worker testified that he developed knee pain while descending stairs

7 7 approximately five hours into his shift, and the Commission found the claimant s testimony credible. In considering the claimant s burden of proof, I note that, in construing the term identifiable by time and place of occurrence, the Arkansas Supreme Court in Edens v. Superior Marble & Glass, 346 Ark. 487, 58 S.W.3d 369 (2001) held that the term identifiable is not synonymous with the term identified. The Court explained: The interpretation of section (4)(A)(i), as it applies in the instant case, turns on the ordinary and usually accepted meaning of the word identifiable. Webster s Dictionary defines the word identifiable as subject to identification: capable of being identified. Webster s Third New International Dictionary 1123 (1993). A strict construction of the statute does not require, as a prerequisite to compensability, that the claimant identify the precise time and numerical date upon which an accident occurred. Instead, the statute only requires that the claimant prove that the occurrence of the injury is capable of being identified. [footnote omitted] The inability of the claimant to specify the date might be considered by the Commission in weighing the credibility [of] the evidence, but the statute does not require that the exact date be identified. Therefore, we reverse the Commission s decision to the extent that it was based on Mr. Edens s inability to provide an exact date of the injury, and remand for the Commission to consider the compensability of Mr. Eden s claim in a manner consistent with our interpretation of section (4)(A)(i). In the present case, Mr. Conway underwent a right shoulder MRI on November 5, 2014, which documented various objective right shoulder abnormalities. (C. Exh. 1 p. 41) Dr. Mitchell has concluded that these internal physical abnormalities require right shoulder surgery which would include right shoulder arthroscopy, decompression, distal

8 8 clavicle excision and rotator cuff repair. (C. Exh. 1 p. 51) In addition, by all accounts pulling rubber - the activity which Mr. Conway testified that he was performing when his shoulder symptoms began around 3:00 on a Wednesday - was an integral part of Mr. Conway s job functions in G Bay. However, on this record, I find for the following reasons that Mr. Conway has failed to establish by a preponderance of the credible evidence that his shoulder problems were caused by a specific incident as he contends. First, I note that approximately one month passed between Mr. Conway s first day off from work due to shoulder problems in mid-september and the alleged incident at work in mid-august. Second, Mr. Conway testified that he told a number of people that he had hurt himself at work, including Jessica Box, Tony Gulley, Ricko Henry, Margaret Haynie, Gregory Hickman, and a few more people. (T. 69) After reviewing the hearing or deposition testimony of six co-workers, this examiner concludes that only Ms. Haynie recalls Mr. Conway stating to her that he injured his shoulder pulling rubber at work. However as discussed below, Ms. Haynie s testimony describes a series of conversations that she had with Mr. Conway over time, and Ms. Haynie s testimony appears to this examiner, taken in its entirety, to describe ongoing shoulder complaints over time, not a specific incident. The other relevant witnesses deny completely Mr. Conway s

9 9 contention that he reported a work-related shoulder injury to his supervisors in August, and nothing in Ms. Haynie s testimony appears to this examiner inconsistent with the testimony of Mr. Conway s supervisors. In these regards, as noted above, Mr. Henry testified that he recalled Mr. Conway on one occasion saying that his shoulder was hurting, but also saying that he might have hurt it sleeping wrong. (T. 101) Ms. Haynie worked next to Mr. Conway in G Bay. (C. Exh. 2 p. 15) Ms. Haynie testified that she heard Mr. Conway on one occasion tell Mr. Henry that his shoulder was hurt or hurting. (C. Exh. 2 p. 11) Ms. Haynie did not, however, overhear any discussion about how Mr. Conway s shoulder had become hurt, and she did not hear Mr. Conway tell Mr. Henry that he had hurt his shoulder at work. (C. Exh. 2 p. 11, 15) At one point Ms. Haynie testified that Mr. Conway had told her off and on that he hurt his shoulder while pulling down on the rubber that he had to load upon the pull-out. (C. Exh. 2 p. 13) However, a few questions later Ms. Haynie testified that Mr. Conway had told her a couple of times before he talked to Mr. Henry that his shoulder was hurting whenever he would pull that rubber down. [Emphasis added] (C. Exh. 1 p. 13) Mr. Conway has not alleged a compensable gradual onset work-related injury 1, and Ms. Haynie s 1 To establish a compensable gradual onset injury, the alleged injury must have been caused by rapid repetitive

10 10 testimony does not, considered in its entirety, appear to this examiner to corroborate Mr. Conway s testimony that there was a specific incident pulling rubber, or even a specific shift of work on or about August 15, 2014, that caused Mr. Conway to experience tingling, burning and soreness, and which he reported that night to Mr. Henry and Mr. Gulley as a work-related injury as he contends. Third, in considering the weight to accord the history of an injury pulling at work in the nurse s notes on September 15, 2014, I note that those notes appear to make no reference to any specific incident on a particular date at work since pulling at work appears to be a task that Mr. Conway performed at least 17 times per night every night that he worked as a trucker in G Bay. (C. Exh. 3 p. 8) Fourth, I note that Mr. Conway has a previous history with Workers Compensation with another employer. (T. 89) I note that Mr. Conway used private insurance to pay for his emergency room bill from September 15, (T. 95) In addition, the first claim for workers compensation that Mr. Conway completed with the assistance of an attorney referred motion and the resulting condition is compensable only if the alleged compensable injury is the major cause of the disability or need for treatment. See Ark. Code Ann (4)(A)(ii)(a) and (E)(ii). In the present case, there is no evidence establishing that Mr. Conway engaged in rapid repetitive shoulder motion to perform his work, and such evidence is essential to establishing a compensable gradual onset shoulder injury. See Pulaski County Special School District v. Stewart, 2010 Ark. App. 487, 375 S.W.3d 758.

11 11 in February of 2015 to an injury in October of 2014, not in August of (R. Exh. 1 p. B18) Moreover, this examiner is unclear when after February 6, 2015, that Mr. Conway first alleged either orally or in writing that his shoulder problems at issue were caused by a specific incident that occurred on or about August 15, Fifth, in considering the weight to accord the reference to a work-related shoulder injury that happened one month earlier in the September 15, 2014, medical report, in conjunction with the other evidence presented in this case, I note that as of September 15, 2014, Mr. Conway had missed two consecutive shifts of work without obtaining a medical excuse on the first day of absence as required by company policy. Mr. Conway knew that the two day unexcused absence would prompt the second disciplinary action against him in a twelve month period, and Mr. Conway defended his unexcused absence when he returned to work on the grounds that he had missed the two shifts due to an allegedly work related injury that had occurred approximately one month earlier. (T. 68, ) I note that Mr. Conway therefore appears to have had a disciplinary incentive to report his shoulder problems as a work-related injury in mid-september. Sixth, in considering the weight to accord Mr. Conway s testimony that he in fact followed company policy and timely reported a work-related shoulder injury to his supervisor on the night it allegedly happened in August, I note that Mr.

12 12 Conway did not later avail himself of the opportunity on at least two occasions in October to explain the situation to the insurance adjuster who was attempting to investigate this matter. (T ; R. Exh. 3 p. 6-7) In according greater weight to the hearing testimony of Mr. Henry and Mr. Gulley over Mr. Conway s testimony regarding conversations that the men either did or did not have in August of 2014, this examiner recognizes that Mr. Gulley s self-described injury reporting procedures appear to this examiner to be consistent with Arkansas Code Annotated section and only if (1) a worker s alleged injury is caused by a specific incident (not gradual onset) and (2) the worker reports the incident and injury on the night that it occurs. By his own account, Mr. Gulley will not fill out an incident report unless the incident is reported during the shift that the incident happens. (T. 166, , 177, 185) At one point, Mr. Gulley went so far as to indicate that he would not fill out an incident report unless the employee also stated that the employee wanted to go to the doctor. (T. 177) However, in the present case Mr. Conway does not contend that his shoulder problems developed gradually or that he tried to wait one or more days after his symptoms began to report an injury that occurred days earlier. He instead contends that he contacted both Mr. Henry and Mr. Gulley to report an injury during the same shift when his

13 13 symptoms allegedly began at work. (T ) Again, Mr. Henry testified that Mr. Conway did mention his shoulder but did not relate it to work. (T. 101) Mr. Gulley testified that Mr. Conway did not mention his shoulder at all until after September 15, (T ) Darren Simpson, the Employee Relations Supervisor, testified that both Mr. Henry and Mr. Gulley in September told Mr. Simpson that Mr. Conway had not reported an on-the-job injury to either of them. (T. 145) According to Mr. Simpson, Mr. Conway in the September meeting at first said that he had reported the injury to Mr. Gully, and when Mr. Gulley denied that allegation, Mr. Conway asserted that he had reported an injury to Mr. Henry, who likewise denied that Mr. Conway had reported a workrelated shoulder injury. (T. 46) I find credible under the entirety of the circumstances the testimony of Mr. Henry and Mr. Gulley that Mr. Conway did not report any type of allegedly work-related shoulder injury before he missed work in mid-september, and I conclude that had Mr. Conway in fact reported to Mr. Gulley as he contends an allegedly workrelated shoulder injury during the same shift that it allegedly occurred, Mr. Gulley would have filled out an incident report. Finally, I note that on cross-examination at the hearing, Mr. Conway testified that he thinks the alleged injury occurred on a Wednesday between 11:00 and 3:00. (T.

14 14 62) However, this appears to be essentially new information certainly not corroborated by any other witness, not corroborated by any document in evidence, and not contained anywhere in the claimant s contentions identified in the Prehearing Order filed on May 12, For all of the reasons discussed herein, I find that Mr. Conway has failed to establish by a preponderance of the credible evidence that a specific incident occurred at work in mid-august of 2014 that caused a new shoulder injury or that aggravated any underlying right shoulder abnormality that may have existed before August of ORDER For the reasons discussed herein, this claim for workers compensation benefits must be, and hereby is, respectfully denied in its entirety. The respondents are directed to pay the court reporter s fees and expenses within thirty (30) days of billing. IT IS SO ORDERED. MARK CHURCHWELL Administrative Law Judge