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Hosey v. Wal-Mart Associates, Inc.

Court of Appeals of Arkansas, Division I

April 6, 2016

JENNIFER LEA HOSEY, APPELLANT,
v.
WAL-MART ASSOCIATES, INC., APPELLEE

APPEAL FROM THE ARKANSAS WORKERS' COMPENSATION COMMISSION [NO. G108727 & G209123].

Moore, Giles & Matteson, L.L.P., by: Greg Giles, for appellant.

Bassett Law Firm LLP, by: Curtis L. Nebben, for appellee.

ROBERT J. GLADWIN, Chief Judge.

Jennifer Lea Hosey appeals from the Arkansas Workers' Compensation Commission's ("Commission's") denial of her claim for medical benefits for her neck and shoulder injuries. Appellant contends that her injuries were caused by accidents while in the employ of appellee Wal-Mart Associates, Inc. (Wal-Mart), thus requiring Wal-Mart to provide the medical care for both problems and entitling her to temporary total-disability benefits (TTD). Because the Commission had a substantial basis for the denial of relief, we affirm.

I. Facts

Appellant worked for Wal-Mart as an overnight stocker on October 6, 2011, when she manually pulled a pallet of juice backward and ran the pallet into a stack of milk crates. She was facing the pallet of juice and pulling the pallet jack with both hands when she hit the milk crates, coming to a dead stop. She was jerked forward, and her right shoulder popped. She immediately had burning pain and sharpness from her shoulder down to her hand on her right side.

Appellant reported the incident to a supervisor, describing it as having caused her arm to have "shooting pains [that] run from the shoulder to [her] fingers on the right side." On October 11, 2011, she described her injury on the Form AR-N as "Rt shoulder, Rt arm all the way down to fingers, Rt side of neck." Dr. Hasmukh Patel treated her for right-arm and shoulder pain on that date, ordered an MRI, and placed her on light duty. Appellant performed light-duty work for Wal-Mart and was referred to Dr. Charles Pearce.

Dr. Pearce noted in his initial evaluation on November 29, 2011,

She had an MR arthrogram performed on November 7, 2011, which by report showed a posterior superior labral tear, she had previously had an anterior labral repair done by me on August 13, 2008, and this was intact. I reviewed her scan I do not see a definite posterior superior labral tear as described. The anterior labral repair is intact.

(Emphasis added.) His assessment was that her right-shoulder pain was consistent with possible nerve irritation, and there were no physical findings consistent with a posterior labral tear. He found that appellant was not at maximum-medical improvement (MMI) and that she should continue light duties. Appellant followed up with Dr. Pearce on December 29, 2011, and he found that she was still not at MMI, but that she could resume her regular work duties.

Appellant requested a change of physician, and on February 15, 2012, appellant saw Dr. Jason Stewart for a second opinion. His assessment was as follows:

1) Based on the lack of findings on her physical exam, I believe that the slight loss of motion she has is a residual of the 2008 surgery. At that time she says that she had lost approximately 25% of her function of the arm. I would not estimate it to be that great today. I would say that she has 10% or less deficit in range of motion of the right arm, but I believe this to be a residual still from 2008 and not a new finding. She does not symptomatically show any signs of a posterior superior labral tear and I would not recommend any surgery on the shoulder for this problem.
2) Cervical radiculopathy, most likely C5, symptomatic. I would recommend an MRI of the C-spine. It does not sound like this injury is being covered by Worker's Comp. If it is, I would recommend an MRI of the C-spine. If not, I have advised her to contact her personal family physician, Dr. Robert Sykes in Nashville, Arkansas, and I would recommend that he get an MRI for her of her neck to see if she does have a symmetric disc bulge causing cervical symptoms that could cause the lateral shoulder pain and arm pain and numbness in the hands.
3) Regarding her right shoulder, she is at [MMI]. There is no impairment rating for this diagnosis, and she can return to her regular duties without restriction. (Emphasis added.)

At Dr. Stewart's recommendation, Dr. Robert Sykes referred appellant to a neurosurgeon, Dr. Fred Contreras, on May 10, 2012, ...


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