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St. Jean Industries, Inc. v. Ezell

Court of Appeals of Arkansas, Division II

November 2, 2016




          Bassett Law Firm LLP, by: Tod C. Bassett, for appellants.

          Orr Willhite, PLC, by: M. Scott Willhite, for appellee.

          Gladwin, C.J., and Glover, J., agree.


         This appeal follows the February 17, 2016 decision of the Workers' Compensation Commission (Commission) affirming the June 15, 2015 opinion of the Administrative Law Judge (ALJ) that Jerry Lynn Ezell sustained a compensable injury to his left big toe, that Ezell imparted notice to St. Jean Industries, Inc. (St. Jean), of his injury, and that Ezell proved by a preponderance of the evidence that he was entitled to temporary total-disability benefits from May 29, 2014 to September 14, 2014.

         St. Jean raises three points on appeal: (1) that the Commission's finding that Ezell sustained a compensable injury and that he is entitled to medical expenses and other benefits is not supported by substantial evidence; (2) that the Commission's finding that the injury is compensable is in error as a matter of law; and (3) that the Commission's finding that Ezell gave notice of his injury on February 14, 2014 is not supported by substantial evidence. We find no merit in these arguments, and we affirm.

         I. Facts

         Ezell was the only person to testify at the hearing before the ALJ on March 18, 2015. At the hearing Ezell testified that he began working for St. Jean in 2007 as a machine operator, manufacturing aluminum suspension parts for the automotive industry. Before he was laid off in December 2013, he had been a supervisor for two years. Ezell was rehired in January 2014 as a machine operator on a different machine. Since the layoff, the solid machine parts Ezell worked with had been replaced with hollow parts, which, unlike the prior parts Ezell had worked with, collected coolant inside them as they were machined. As Ezell pulled the parts off the machine, the coolant poured onto his feet, soaking his shoes and socks. After three weeks, on February 13, 2014, Ezell's left foot began to hurt while he was at work. When he got home and took off his boots, he observed a pea-sized blister on his left big toe. Ezell testified that he had been wearing the boots for work for about six months when the blister appeared. Ezell testified that he was on his feet while he worked at the machine, that he walked from the machine to the deburring station, and that the two stations were together in a small area.

         Ezell testified that he reported the blister to the technical assistant, Roy Lawrence, the next day. Ezell explained that when a supervisor is not present, the technical assistant is in charge, and he described the position as "a supervisor that's not allowed to discipline employees." Ezell testified that he told Lawrence that he was diabetic and that he needed to do something about his condition but that Lawrence "did not do anything in response to me telling him about the blister." Ezell testified that he reported the blister to the other two technical assistants, Jimmy House and Anthony Lawson, within a day or two of observing the blister. Mark Lee, Ezell's supervisor who ranked above the technical assistants, was not present during Ezell's shift; however, Ezell testified that he took a picture of the affected toe and sent it to Jimmy House. House then told Ezell that he reported the blister to Supervisor Lee and had forwarded the picture to Lee.

         Ezell called his family doctor on February 14, 2014, and made an appointment for February 24, 2014. Ezell testified that, until his appointment, he continued to work and that he wrapped his toe in gauze and applied peroxide to the wound to try to keep it dry and clean. Ezell stated that during the appointment, Dr. Lee Vaughan took a culture to determine the type of infection Ezell had, and he prescribed the first round of antibiotics and a topical application. In his progress notes, Dr. Vaughan noted "[B]lister on bottom of 1st toe (L) foot, getting worse" and wrote that Ezell had a diabetic foot ulcer. Dr. Vaughan also wrote that Ezell "works in coolant water" and that the coolant "causes boots to fall apart." Further down, Dr. Vaughan noted "[G]et waterproof chemical resistant boots, " and he prescribed Gentamicin ointment "for toe."

         Ezell testified that he went back to see his doctor on March 10, 2014, and Dr. Vaughan changed the antibiotic because the original one had not been effective. The progress notes from that appointment show that Ezell had ordered new work boots and that he still had a "small ulcer." Ezell took a note from Dr. Vaughan to the human-resources representative, Aimee Branscum, and offered to show her his toe, but she declined to see it.

         Ezell testified that two weeks before his toe was amputated, he requested that Lee move him to a different machine or a different shift where a different machine would be available, but Lee refused and told Ezell that other employees were ahead of him in the same requests. Ezell testified that he explained that his toe was not healing and was getting worse and that he offered to show Lee a new picture, to which Lee responded that he did not want to see either the new picture or the first picture that had been sent to him.

         Ezell testified that around May 29, 2014, he visited Dr. Vaughan again after his toe had gotten drastically worse overnight. Ezell explained that his wound progressed from blisters to "double in size" and he could not get his boot on his foot. Dr. Vaughan referred Ezell to Springhill Baptist Hospital in North Little Rock where Ezell was admitted. Dr. Martin Siems examined Ezell the day after he had been admitted and scheduled surgery. Ezell testified that he called ...

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