BEFORE THE ARKANSAS WORKERS COMPENSATION COMMISSION CLAIM NO. G GREAT DANE TRAILERS, EMPLOYER OPINION FILED FEBRUARY 10, 2015

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1 BEFORE THE ARKANSAS WORKERS COMPENSATION COMMISSION CLAIM NO. G WILLIAM PHILLIPS, EMPLOYEE GREAT DANE TRAILERS, EMPLOYER AMERICAN ZURICH INSURANCE CO./ GALLAGHER BASSETT SERVICES, INC., INSURANCE CARRIER/TPA CLAIMANT RESPONDENT RESPONDENT OPINION FILED FEBRUARY 10, 2015 Hearing conducted before ADMINISTRATIVE LAW JUDGE MARK CHURCHWELL, in Little Rock, Pulaski County, Arkansas. The claimant was represented by HONORABLE SHERRI ARMAN MCDONOUGH, Attorney at Law, Hot Springs, Arkansas. The respondent was represented by HONORABLE GUY ALTON WADE, Attorney at Law, Little Rock, Arkansas. STATEMENT OF THE CASE A hearing was held in the above-styled claim on December 9, 2014, in Little Rock, Arkansas. A Prehearing Order was entered in this case on October 20, The following stipulations were submitted by the parties either in the Prehearing Order or during the course of the hearing and are hereby accepted: 1. The employee/employer/carrier relationship existed in April of 2013, and the claimant continued to work for Great Dane Trailers through July 18, The claimant s average weekly wage was $680 which would entitle him to a TTD rate of $453 and a PPD rate of $340, if this claim is found compensable. 3. The respondents controvert this claim in its entirety.

2 2 By agreement of the parties, the issues to be litigated and resolved at the present time were limited to the following: Claimant: 1. Compensability, specifically whether claimant sustained an injury by specific incident in the course and scope of his employment with the respondent. 2. Temporary total disability compensation from July 19, 2013, to a date yet to be determined. 3. Medical. Respondent: 1. Compensability. 2. Notice. The record consists of the December 9, 2014, hearing transcript and the exhibits contained therein. FINDINGS OF FACT AND CONCLUSIONS OF LAW 1. The employee/employer/carrier relationship existed in April of 2013, and the claimant continued to work for Great Dane Trailers through July 18, The claimant s average weekly wage was $680 which would entitle him to a TTD rate of $453 and a PPD rate of $340, if this claim is found compensable. 3. The respondents controvert this claim in its entirety. 4. The claimant has established by a preponderance of the evidence that he sustained a compensable injury to his neck. 5. The claimant has established by a preponderance of the evidence that he was temporarily totally disabled from July 19, 2013, until October 31, 2014.

3 3 6. The claimant has established that the medical treatment that he received through October 31, 2014, was reasonably necessary for his compensable injury. DISCUSSION In the present case, after hearing the live testimony and observing the demeanor of the witnesses, I find credible the testimony of Mr. Phillips and Mr. Faulkner, which I find establish by a preponderance of the credible evidence the following facts. At the time of the hearing conducted in this matter, Mr. Phillips was 43 years old. (T. 12) Mr. Phillips became employed by Great Dane Trailers in June of 2012 as a tractor-trailer mechanic - the only type of work that he has ever done. (T ) In April of 2013, the employees at Great Dane Trailers were rebuilding many trailer roll doors. Part of that process required each door be removed intact. The doors were heavy and required several individuals to remove. (T. 15) On one occasion (and on only one occasion), a trailer door slipped and hit Mr. Phillips on top of the head. (T. 17) Although Mr. Faulkner was not in a position to see the door hit Mr. Phillips, Mr. Faulkner was present when the door slipped, and Mr. Phillips did complain to Mr. Faulkner either that day or the next day that the door had hit him and hurt him. (T )

4 4 Prior to that incident, Mr. Phillips had never had any problems with his neck, had not been to a doctor for anything in years, and in fact did not even have a regular treating physician. (T ) After the door incident, Mr. Phillips neck was stiff the next day and within one week, he knew that something was seriously wrong with his neck. (T ) However, Mr. Phillips continued working. (T. 21) On several occasions between the date of the incident and June 6, 2013, Mr. Phillips discussed the matter with the safety director at the time, Paul Bray. (T ) Having failed to get any results following the chain of command, on June 6, 2013, Mr. Phillips went to the office of the facility s service manager, Mark Perry. (T ) At the hearing, Mr. Phillips recalled Mr. Perry s immediate response as Oh, my God, you realize if we turn this in to workers compensation, there goes our safety bonuses for the year? (T. 24) Consistent with Mr. Phillips recollection of that conversation, Mr. Perry during that meeting in June of 2013 did not at that time fill out any incident reports, did not provide Mr. Phillips with a Form N to complete, and Great Dane Trailers did not report the alleged injury to its workers compensation insurance provider. (T. 93, ) In fact, the Commission Form 1 in evidence signed by workers compensation Senior Claims Representative, Mitch Blakely, indicates that Great Dane Trailers at no time prior

5 5 to July 16, 2013, informed the workers compensation carrier about the alleged work injury since the Form 1 incorrectly states that the employer was not even notified of the alleged injury until July 16, (C. Exh. 1 p. 9) What actually occurred between June 6, 2013, and July 16, 2013, is that on June 6, 2013, Mr. Perry sent Mr. Phillips for medical treatment to Concentra at Great Dane Trailers expense without completing any forms or reports and without Great Dane Trailers reporting to its workers compensation insurance carrier the pending claim for an allegedly work-related neck injury. 1 (T. 25) Mr. Phillips came back to work from Concentra with work restrictions of 1 Mr. Perry was equivocal in his testimony with regard to whether he did or did not call his supervisor/corporate before sending Mr. Phillips to Concentra. Mr. Perry testified that he has no knowledge when corporate turned in any information to their workers compensation insurance company. (T ) Under the current law and Commission reporting procedures, since Great Dane Trailers is not selfinsured for workers compensation benefits, Great Dane Trailers had ten days after first receiving notification of the alleged injury from the employee to then notify Great Dane Trailers workers compensation insurance carrier so that the carrier can timely determine whether to accept or controvert the claim. See Ark. Code Ann and In 19 years as a Commission employee reviewing thousands of hearing transcripts, this is the first documented instance that this examiner can recall of an insured employer actually (1) not reporting a claim of alleged work injury to its workers compensation insurance carrier within 10 days and (2) instead using the employer s own funds to pay to send the employee for medical care for an alleged work injury. I am referring the employer s actions in this matter to the Commission s Compliance Division for any investigation that department may deem appropriate. Accord Harris v. Halley Oil, Full Workers Compensation Commission, Opinion filed April 21, 2000 (E812508).

6 6 no lifting, pushing or pulling over 20 pounds, and Great Dane Trailers provided Mr. Phillips painting work that he could do within those restrictions. (T. 27) However, when Mr. Phillips went for his fourth appointment at Concentra in July of 2013, Concentra lowered his restrictions. When Mr. Phillips took the new restrictions on or about July 18, 2013, to his supervisor, Juan Rodriguez, Great Dane Trailers sent Mr. Phillips home. (T. 29) Approximately one week after that, Mitch Blakely had Mr. Phillips put under video surveillance for the first time. (R. Exh. 2) Again, as far as this examiner can tell, no one at Great Dane Trailers completed any type of written report of injury, or requested that Mr. Phillips prepare any written report of injury, until July 16, 2016, i.e., one day before Mitch Blakely dated the carrier s Form 1 2, two days before Mr. Phillips was sent home from work by Great Dane Trailers, and slightly more than one week before Mitch Blakely had Mr. Phillips put under video surveillance. After both Great Dane Trailers and its workers compensation insurance carrier both decided not to pay for additional treatment at Concentra, Mr. Phillips had to find 2 Oddly, the Form AR-1 signed by Mr. Blakely lists the Date Prepared as 7/17/13", but the last date worked as and the first date of disability as I conclude that the Date Prepared is in error, since Mr. Blakely could not know on July 17, 2013, that Mr. Phillips would go to Concentra the next day (i.e., on July 18, 2013), and receive on July 18, 2013, work restrictions that Great Dane Trailers would no longer agree to accommodate.

7 7 a new medical provider. (T. 29) Mr. Phillips eventually came under the care of Dr. James Adametz, who ultimately performed surgery at the C4-5 and C5-6 levels of Mr. Phillips spine on August 25, (C. Exh. 1 p. 50). The claimant contends that he sustained a work related neck injury at Great Dane Trailers when the roll-up door fell on his head. (Comm. Exh. 1 p. 2) The respondents deny that the claimant sustained any injury in the course and scope of his employment; the respondents also contend that the MRIs taken in this case reflect that the claimant s medical condition requiring surgery was preexisting. (T. 8) Issue 1: Compensability 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).

8 8 I find in the present case that a door falling on an employee s head is a specific incident under any reasonable interpretation of that term. I also find that the falling trailer door incident that caused Mr. Phillips injury is identifiable by time and place of occurrence since the evidence establishes that a falling door in a trailer at Great Dane Trailers is a very, very unusual event. In fact, Mr. Faulkner at the time of the 2014 hearing had worked at Great Dame Trailers for seven years, and Mr. Faulkner cannot recall another incident of a door ever falling, much less falling in the April/May time frame when this door fell. (T. 74, 85) In light of the singular nature of the door falling incident at issue in this case, I find that the incident and resulting injury are identifiable by time and place of occurrence, and I note that an injured worker is only required to establish that the injury is identifiable by time and place of occurrence under the present law. The claimant is not required to establish the exact calendar date of the incident, and I do not find that the claimant s inability to pinpoint the exact calendar date, in light of all of the circumstances surrounding this case, diminishes his credibility since both the occurrence of the incident itself and his complaints within one day were corroborated by a credible hearing witness. See Edens v. Superior Marble & Glass, 346 Ark. 487, 58 S.W.3d 369 (2001).

9 9 Because Mr. Phillips was participating in removing the trailer door as a part of his job functions at Great Dane Trailers, I also find that any physical injury that Mr. Phillips sustained when the door fell on his head arose out of and occurred in the course and scope of his employment. I further find that the claimant has established by medical evidence supported by objective findings the acute neck injury that he contends occurred when the door fell and hit him on the head. Those objective findings of injury (not impairment) 3 include decreased passive range of motion testing documented at Concentra on both June 6, 2013, and June 13, (C. Exh. 1 p. 2, 17) The relevant objective findings also include crepitus and popping documented on July 18, 2013, muscle spasm documented on January 9, 2014, and stenosis at both the C4-5 and C5-6 levels of Mr. Phillips spine first documented by an MRI performed on August 27, (C. Exh. 1 p. 26, 38, 44) In determining whether objectively identified stenosis was causally related to an incident at work, the Commission has previously considered such questions as: Was the claimant seeking active medical treatment possibly related 3 Arkansas Code Annotated section (16)(A)(ii)(b) provides that range-of-motion testing shall not be considered an objective finding for the purpose of making physical or anatomical impairment ratings to the spine. [Emphasis added] The current law does not, however, state that passive range of motion testing shall not be considered an objective finding for determining the compensability of an injury.

10 10 to stenosis prior to the work injury? Was the claimant experiencing problems at the time of the work injury? What has a doctor opined, if anything? See Keene v. Arkansas Department of Health, Full Workers Compensation Commission, Opinion filed July 30, 2008 (F502422). In the present case, the claimant before the door falling incident was not seeking active medical treatment for decreased range-of-motion, spasms, crepitus, popping or any other neck abnormality. I have found credible the claimant s testimony that he was not experiencing any problems with his neck before the door incident, but knew that he was seriously injured within one week after the incident. For his part, Dr. Adametz has opined that, within a reasonable degree of medical certainty, the on-the-job injury is the cause of Mr. Phillips problem and the reason that he needs treatment. (C. Exh. 1 p. 48) In light of my findings that Mr. Phillips was asymptomatic before the incident, that Mr. Phillips realized that he had a serious injury within one week after the incident, and in light of the nature and location of the blunt force trauma that Mr. Phillips sustained above his neck on his head, I find credible Dr. Adametz s opinion that Mr. Phillips on-the-job injury is the cause of Mr. Phillips medical problem at issue and his need for medical treatment. I therefore find that Mr. Phillips has established a causal connection

11 11 between the door falling on his head and all of the objective findings documented herein. Finally, in light of Mr. Phillips good health before the incident, and his serious neck problems beginning within one week after the incident, in conjunction with Dr. Adametz s medical opinion and the existence of the objective findings cited previously, I find that the claimant has established that the injury that he sustained when the door fell caused internal harm to his neck which has required medical treatment and caused at least temporary disability 4. I therefore find that the claimant has established by a preponderance of the evidence each of the requirements necessary to establish that he sustained a compensable neck injury. In making these findings, this examiner has given due consideration to the testimony of the other hearing witnesses. Three members of management at the facility testified over and over that: (1) we did not prepare any incident report for Mr. Phillips; (2) if Mr. Phillips had reported an incident to any of us, we would have prepared an incident report; and (3) he therefore did not report any alleged injury to any of us. (T. 99, 105, 131, 140, 142, 154, 157, 158, 160) Mark Perry, the facility service manager, also testified at one point regarding standard 4 The issues of permanent impairment and permanent disability have been reserved. (T. 9)

12 12 procedures as follows when an employee attempts to report an allegedly work related injury: Q. Now, whenever somebody comes in and reports a claim, you don t decide if that claim is going to be accepted or not, do you? A. No. Q. You turn it in to the insurance company, and they re the ones who do an investigation. Is that right? A. Correct. Q. You don t make that determination? A. That s correct. (T ) The problem with this testimony is, of course, that when Mr. Phillips went into Mr. Perry s office to discuss an allegedly work related neck injury on June 6, 2013, Mr. Perry admits that he did not fill out any accident reports, and Great Dane Trailers did not turn this matter in to its workers compensation insurance carrier to permit the carrier at that time an opportunity to determine whether or not to accept the claim. Instead, Mr. Perry brought up the topic of safety bonuses, and Mr. Perry arranged to send Mr. Perry to Concentra at Great Dane Trailers expense until Mr. Phillips became too disabled to continue working at Great Dane Trailers. Mr. Perry and/or Great Dane Trailers then - six weeks later in July - took action to inform the workers compensation carrier that Mr. Phillips had reported a work related injury. However, even then, the workers compensation carrier was somehow given the misimpression

13 13 that Mr. Phillips did not notify his employer of the alleged neck injury until July 16, 2013, when there is no dispute that Mr. Phillips was in Mr. Perry s office nearly six weeks earlier on June 6, 2013, discussing with Mr. Perry the alleged work related neck injury for which Great Dane Trailers had in fact provided medical care at its own expense before contacting the carrier. There is also apparently no serious dispute in this case that Great Dane Trailers does in fact send employees to Concentra to treat work related injuries. (T. 115; C. Exh. 1 6, 15, 25, 32-33) There is overwhelming evidence that Mr. Perry sent Mr. Phillips to Concentra beginning on June 6, 2013, and that Mr. Perry (or someone at Great Dane Trailers) had Concentra bill Great Dane Trailers directly rather than notifying and billing Great Dane Trailers workers compensation insurance carrier. (C. Exh. 1 p. 7, 16, 23, 24, 34) Consequently, this examiner does not find credible either the testimony about filling out claim forms as routine procedure or about Great Dane Trailers notifying their workers compensation carrier in a timely manner as routine procedure in order to permit the carrier to make a timely and informed decision. I also note what this examiner considers relevant conflicts that existed between the hearing testimony and the deposition testimony of two of the Great Dane Trailers managers who testified. (T , )

14 14 In addition, to the extent that the various managers testified at the 2014 hearing regarding conversations that they allegedly had with Mr. Phillips before June 6, 2013, about his neck problems not being work related, that testimony begs the rhetorical question: If Mr. Phillips had already indicated to management before June 6, 2013, that his neck problems were not work related, then why did Great Dane Trailers on June 6, 2013, not (1) investigate and fill out the appropriate notice reports for the company s workers compensation insurance carrier on June 6, 2013, (2) turn this matter over to the workers compensation carrier on June 6, 2013, and (3) provide the workers compensation carrier on June 6, 2013, a recommendation to deny the workers compensation claim in its entirety? Again, this examiner finds the witnesses testimony on behalf of Great Dane Trailers inconsistent with the company s own actions between June 6, 2013, and July 16, Issue 2: Temporary Disability Compensation Temporary total disability for unscheduled injuries is that period within the healing period in which a claimant suffers a total incapacity to earn wages. Arkansas State Highway & Transportation Dept. v. Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981). The healing period ends when the underlying condition causing the disability has become stable and nothing further in the way of treatment will

15 15 improve that condition. Mad Butcher, Inc. v. Parker, 4 Ark. App. 124, 628 S.W.2d 582 (1982). In the present case, Mr. Phillips eventually required two-level cervical surgery to address the symptoms that began with the trailer door incident, and Dr. Adametz provided Mr. Phillips post-surgical follow up care until Dr. Adametz released Mr. Phillips from further care with a 10% impairment rating on October 31, (C. Exh. 1 p. 51) Dr. Adametz s release dated October 31, 2014, persuades this examiner that Mr. Phillips remained within his post-surgical healing period for his compensable neck injury until October 31, In light of Mr. Phillips exclusive work history as a tractor-trailer mechanic, the respondents inability to return Mr. Phillips to work when he received a new set of restrictions in July of 2013, and Dr. Adametz s indication in October of 2014 that it is not practical for Mr. Phillips to return to his previous line of work, I also find that Mr. Phillips has established by a preponderance of the evidence that he was completely incapacitated from working for this or any other employer from the day Great Dane Trailers sent him home in July of 2013 until Dr. Adametz released him from care to look for a new line of work on October 31, (C. Exh. 1 p. 51)

16 16 Issue 3: Reasonably Necessary Medical Treatment Employers must promptly provide medical services which are reasonably necessary for treatment of compensable injuries. Ark. Code Ann (a). Injured employees have the burden of proving by a preponderance of the evidence that medical treatment is reasonably necessary for treatment of the compensable injury. Ark. Code Ann (a)(3); Jordan v. Tyson Foods, Inc., 51 Ark. App. 100, 911 S.W.2d 593 (1995). What constitutes reasonably necessary medical treatment is a question of fact for the Commission. Gansky v. Hi-Tech Engineering, 325 Ark. 163, 924 S.W.2d 790 (1996); Air Compressor Equipment v. Sword, 69 Ark. App. 162, 11 S.W.3d 1 (2000). Medical treatment intended to reduce or enable an injured worker to cope with chronic pain attributable to a compensable injury may constitute reasonably necessary medical treatment. Patchell v. Wal-Mart Stores, Inc., 86 Ark. App. 230, 184 S.W.3d 31 (2004). An employer may also remain liable for medical treatment reasonably necessary to maintain a claimant's condition after the healing period ends. Artex Hydrophonics, Inc. v. Pippin, 8 Ark. App. 200, 649 S.W.2d 845 (1983). The Arkansas Courts have long recognized that a preexisting disease or infirmity does not necessarily disqualify a claim for benefits if the employment aggravated, accelerated, or combined with the disease or

17 17 infirmity to produce the disability for which compensation is sought. Jim Walter Homes Travelers Ins. v. Beard, 82 Ark. App. 607, 120 S.W.3d 160 (2003). Where an injured worker seeks surgery related to a medical condition that was aggravated by a work-related injury, the injured worker is not obligated to establish that the work-related injury is the major cause of the need for treatment in order to be entitled to benefits for surgery. The injured worker instead needs only to establish that the work-related injury was a factor in the need for subsequent treatment. Williams v. L & W Janitorial, Inc., 85 Ark. App. 1, 145 S.W.3d 383 (2004). In the present case, Mr. Phillips neck was asymptomatic before the trailer door incident. He became aware that he had sustained a serious injury within one week of the incident, and Dr. Adametz has opined that the on-the job injury is the cause of Mr. Phillips problem and the reason that he needs surgery. In light of the nature of the trauma that Mr. Phillips sustained to his head, and Mr. Phillips lack of symptoms before the trailer door incident, this examiner is not persuaded by the respondents contention that the stenosis requiring surgery preexisted the trailer door incident. However, even if the stenosis did to some degree preexist the trailer door incident, I find that the claimant has established by a preponderance of the evidence that his

18 18 compensable injury was at least a factor in his need for surgery under circumstances where (1) there is only one medical opinion on causation in evidence; (2) that medical opinion does not appear to be based on any material mistake of fact; and (3) Dr. Adametz opined therein that the on-thejob injury is the reason that Mr. Phillips needs treatment. (C. Exh. 1 p. 48) Compare Williams v. L & W Janitorial, Inc., 85 Ark. App. 1, 1456 S.W.3d383 (2004) [Non-conflicting medical opinions indicating a causal connection between injury and treatment cannot be disregarded and establish the injury as a factor] to Jackson v. O Reilly Automotive Inc., 2013 Ark. App. 755, S.W.3d [Physician never opined that injury was a factor in need for treatment]. Finally, I note that at least some of Mr. Phillips medical treatment at issue may have been paid by Blue Cross Blue Shield and/or by Medicaid. By agreement of the parties, any related subrogation issues are hereby reserved. (T. 72) Issue 4: Attorney s Fees The respondents have controverted the claimant s claim for additional benefits in its entirety. In Goodwin v. Phillips Petroleum Co., 72 Ark App. 302, 37 S.W.3d 644 (2001), the Court indicated that the granting of a credit against future benefits does not diminish the claimant s attorney s fee for establishing a claim for additional benefits in a controverted claim. Consequently, I find that

19 19 the claimant s attorney is entitled to a 25% attorney s fee calculated on all temporary disability benefits awarded herein, even though the respondents may not pay the entire award to the claimant if the respondents are required to reduce Mr. Phillips benefits under Arkansas Code Annotated section upon a determination that Mr. Phillips previously received a period of unemployment compensation that may overlap the period of this award. (T ) Issue 5: Notice provides: Arkansas Code Annotated section (a)(1) Unless an injury either renders the employee physically or mentally unable to do so, or is made known to the employer immediately after it occurs, the employee shall report the injury to the employer on a form prescribed or approved by the Workers Compensation Commission and to a person or at a place specified by the employer, and the employer shall not be responsible for disability, medical, or other benefits prior to receipt of the employee s report of injury. Furthermore, Arkansas Code Annotated section (b)(1) provides that: Failure to give the notice shall not bar any claim: (A) If the employer had knowledge of the injury or death; (B) If the employee had no knowledge that the condition or disease arose out of and in the course of the employment; (C) If the commission excuses the failure on the grounds that for some satisfactory reason the notice could not be given.

20 20 The form prescribed by the Commission is a Form AR-N. In the present case, Mr. Phillips signed the Form N in evidence on July 20, (C. Exh. 2 p. 8) However, there is no dispute that Mr. Phillips gave the respondent employer adequate verbal notice of the alleged neck injury at issue in this claim on June 6, 2013, to cause the employer to decide to send Mr. Phillips to the doctor at the employer s own expense. Since on this record it does not appear that Mr. Phillips incurred any medical expense before June 6, 2013, or sought benefits for any period of disability benefits before June 6, 2013, I find moot the question as to the exact date that the respondent employer first had knowledge of Mr. Phillips work related neck injury within the meaning of Section 701. Clearly the employer had knowledge of the allegedly work related neck injury both before the employer sent Mr. Phillips to the doctor for his neck and before the employer sent him home from work because of his neck. AWARD The respondents are directed to pay benefits in accordance with the findings set forth herein. All accrued sums shall be paid in a lump sum without discount and this award shall earn interest at the legal rate until paid, pursuant to Ark. Code Ann , and Couch v. First State Bank of Newport, 49 Ark. App. 102, 898 S.W.2d 57 (1995), and Burlington Industries, et al v. Pickett, 64 Ark.

21 21 App 67, 983 S.W.2d 126 (1998); reversed on other grounds 336 Ark. 515, 988 S.W.2d 3 (1999). The claimant s attorney is entitled to a 25% attorney s fee on the indemnity benefits awarded herein, one-half of which is to be paid by the claimant and one-half to be paid by the respondents in accordance with Ark. Code Ann and Death & Permanent Total Disability Trust Fund v. Brewer, 76 Ark. App. 348, 65 S.W.3d 463 (2002). 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