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Davenport v. Wal-Mart Stores, Inc.

Court of Appeals of Arkansas, Division I

October 17, 2018



          Willard Proctor, Jr., P.A., by: Willard Proctor, Jr., for appellant.

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


         An administrative law judge (ALJ) found appellant Felecia Davenport was not entitled to temporary total-disability benefits (TTD) for the period from February 17, 2015, to a date to be determined. Specifically, the ALJ found appellee Wal-Mart Stores, Inc., [1](Wal-Mart) has at all times made suitable employment available to Davenport within her physical restrictions until such time Davenport left work and never returned, and Davenport failed to prove by a preponderance of the evidence her entitlement to TTD. The Workers' Compensation Commission (Commission) affirmed and adopted the ALJ's decision.[2] Davenport now appeals to this court, arguing (1) the Commission arbitrarily disregarded evidence and witness testimony and (2) the Commission's decision failed to provide a substantial basis for relief. We affirm the Commission's decision.

         Davenport began working as an order filler at a Wal-Mart Distribution Center on October 15, 2014. This job involved labeling boxes of merchandise requested by Wal-Mart stores and placing the boxes on a conveyor belt, which required bending, stretching, lifting, twisting, going up steps, and reaching with her body and arms and/or a metal bar to pull items down. On November 14, 2014, [3] Davenport suffered an admittedly compensable injury to her right thumb and shoulder while attempting to pull a box off a shelf. Davenport completed her shift that day but began to have shooting pain down her right arm that night. She reported she was experiencing pain and was seen by Dr. Shahid Shah of Sherwood Urgent Care on November 18, 2014, where she was diagnosed with a right-shoulder contusion and a sprained right thumb; x-rays of both her shoulder and thumb were negative for fractures or dislocations. A temporary alternative duty assignment (TAD) was completed detailing Davenport's restrictions[4] and offering Davenport work doing label backing or detail cleaning; Davenport checked the box stating she accepted the TAD position offered to her and signed the TAD on November 19, 2014.

         Davenport was seen by Dr. Waseem Shah of Sherwood Urgent Care on November 24, 2014, for a follow-up visit. He continued Davenport on light duty. However, on November 30, 2014, Dr. Kenneth Holder of Sherwood Urgent Care took Davenport off work until she could be evaluated for physical therapy. An MRI performed on December 4, 2014, indicated a small bursal-sided tear of the posterior fibers of the infraspinatus tendon.

         Davenport began physical therapy on December 5, 2014. She was seen by Dr. Waseem Shah on December 8, 2014, for a follow-up exam; referred to an orthopedist due to her acute right-shoulder pain; and was given a prescription for hydrocodone-acetaminophen tablets. She was also seen the same day for complaints of left-shoulder pain.

         A second TAD was generated on December 8, 2014, noting Dr. Shah had released Davenport for light duty in label backing with restrictions of no bending, stooping, or pulling of her shoulder or arms. Davenport marked that she accepted the TAD position and signed the document on December 13, 2014.

         Davenport was seen at Sherwood Urgent Care for follow up on December 12, 2014. She was informed she probably would not be given a refill on her pain medication due to her failure to use it as directed. She also continued to complain of left-shoulder and upper-arm pain. She became upset when she was told she could not obtain more pain medication and that workers' compensation would not cover any left-shoulder injury. It was noted to obtain a referral to orthopedic-surgery consultation; when she was told she could not see an orthopedist that day, Davenport left the clinic.

         Davenport received physical therapy on December 12 and 19, 2014. A third TAD was completed on December 20, 2014, stating Davenport's restrictions were no right-arm duty; Wal-Mart offered Davenport the jobs of label backing and detail cleaning, but Davenport did not accept or refuse the TAD, nor did she sign it. Davenport was seen by Dr. Waseem Shah on December 22, 2014, who noted she was still having right-shoulder pain with movement.

         Davenport was seen by Dr. Kyle Blickenstaff on December 30, 2014, and his examination revealed no tenderness on palpation of the acromioclavicular joint of the right shoulder; no muscle atrophy of the shoulders; no swelling of the right shoulder; no crepitus on palpation of right shoulder; and normal active and passive motion of the right shoulder. However, right-shoulder pain was elicited on elevation through active abduction, elevation through forward flexion on passive abduction, and during a Neer impingement test of the right shoulder. Dr. Blickenstaff found Davenport to be fit for light-duty work with restrictions of no lifting overhead and no pushing and pulling or repetitive reaching with the right upper extremity.

         Davenport failed to attend her physical-therapy appointments on December 29, 2014, and January 7 and 8, 2015. A fourth TAD was created on January 5, 2015, offering Davenport label-backing duties and detail cleaning. This TAD incorporated Dr. Blickenstaff's restrictions of modified light duty with no pushing, pulling, lifting more than five pounds, and no overhead reaching for 30 days. Davenport did not accept or refuse this TAD, and she did not sign the document.

         Dr. William Rutledge saw Davenport on January 20, 2015, noting she was unable to tolerate limited duty due to pain and discomfort. His examination revealed Davenport's right shoulder was slightly lower than her left; she had pain with far abduction and with external rotation; and the right thumb had mild tenderness with forward flexion. His assessment was right-shoulder strain, neck ...

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