{"id":"alj-H109611-2023-10-10","awcc_number":"H109611","decision_date":"2023-10-10","opinion_type":"alj","claimant_name":"Steven Dawson","employer_name":"National Lift Truck","title":"DAWSON VS. NATIONAL LIFT TRUCK AWCC# H109611 OCTOBER 10, 2023","outcome":"denied","outcome_keywords":["granted:1","denied:4"],"injury_keywords":["shoulder","rotator cuff","back","fracture"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/DAWSON_STEVEN_H109611_20231010.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"DAWSON_STEVEN_H109611_20231010.pdf","text_length":30372,"full_text":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. H109611 \n \nSTEVEN DAWSON, Employee CLAIMANT \n \nNATIONAL LIFT TRUCK, Employer RESPONDENT \n \nLIBERTY MUTUAL GROUP, Carrier RESPONDENT \n \n \n \n OPINION FILED OCTOBER 10, 2023 \n \nHearing  before  ADMINISTRATIVE  LAW  JUDGE  ERIC  PAUL  WELLS  in  Fort  Smith, \nSebastian County, Arkansas. \n \nClaimant represented by MATTHEW J. KETCHAM, Attorney at Law, Fort Smith, Arkansas. \n \nRespondents represented by MICHAEL E. RYBURN, Attorney at Law, Little Rock, Arkansas. \n \n STATEMENT OF THE CASE \n \n On  July  13,  2023,  the  above  captioned  claim  came  on  for  a  hearing  at  Fort  Smith, \nArkansas.   A pre-hearing conference was conducted on April 24, 2023, and a Pre-hearing Order \nwas filed on April 25, 2023.   A copy of the Pre-hearing Order has been  marked Commission's \nExhibit No. 1 and made a part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1. The Arkansas Workers' Compensation Commission has jurisdiction of this claim. \n 2.   The   relationship   of   employee-employer-carrier   existed   between   the   parties   on \nDecember 3, 2021. \n 3. The respondents have controverted the claim in its entirety. \n\nDawson – H109611 \n \n-2- \n 4.  The  claimant  was  earning  sufficient  wages  to  entitle  him  to  compensation  at  the \nweekly rates of $667.00 for temporary total disability benefits and $500.00 for permanent partial \ndisability benefits. \n By agreement of the parties the issues to litigate are limited to the following: \n 1. Whether Claimant sustained a  compensable injury to his left upper  extremity and left \nshoulder on or about December 3, 2021. \n 2. Whether Claimant is entitled to medical treatment for his left upper extremity and left \nshoulder injury. \n 3.  Whether  Claimant  is  entitled  to  temporary  total  disability  benefits  from  December  4, \n2021, to a date yet to be determined. \n 4. Whether Claimant’s attorney is entitled to an attorney fee. \n Claimant’s contentions are: \n“1. The above listed proposed stipulations. \n \n2. The Claimant was injured on December 3, 2021, when he was at \na  place  of  business,  Whitt  Truck  Repair,  to  deliver  materials  on \nbehalf  of  Separate  Respondent,  National  Lift  Truck,  where  an \naltercation ensued between the Claimant and D. Joshua Whitt, son \nof the business owner,  wherein the Claimant received an injury to \nhis left upper extremity and shoulder. \n \nThe  Claimant  was  treated  the  same  day  at  Mercy  Hospital  Fort \nSmith wherein he complained of left shoulder and facial pain. The \nClaimant  was  treated  with  a  left  shoulder  dislocation  which  was \nsuccessfully reduced into place in the emergency room and he was \nreferred to an orthopedic surgeon for additional follow-up. \n \nOn  December  13,  2021,  the  Claimant  followed  up  with  Patrick \nWalton,   PA,   at   Mercy   Clinic   Orthopedics   for   continued   left \nshoulder pain. Dr. Walton referred the Claimant for an MRI of his \nleft  shoulder  and  was  instructed  to  return  upon  completion  of \nsame. \n \n\nDawson – H109611 \n \n-3- \nOn   January   11,   2022,   after   the   Claimant’s   MRI   had   been \nperformed,  he  followed  up  with  Dr.  Walton  wherein  the  results \nwere discussed and a rotator cuff repair surgery was scheduled. \n \nOn  February  7,  2022,  the  Claimant  underwent  a  left  shoulder \nscoped with  rotator  cuff  repair, subacromial decompression at AC \njoint  repair  performed  by  Dr.  Steven  Smith  at  Mercy  Orthopedic \nHospital. \n \nOn February 9, 2022, the Claimant started physical therapy for his \nleft shoulder at Mercy Therapy Services. \n \nThe  Claimant  continued  to  follow-up  with  Dr.  Walton  and  Mercy \nTherapy Services until he reached MMI. \n \n3.  The  Claimant  reserves  the  right  to  amend  and  supplement  his \ncontentions after additional discovery has been completed.” \n \n Respondents’ contentions are: \n \n“The claimant was not performing employment services at the time \nof   the   injury.   The   claimant   was   an   active   participant   in   an \naltercation.” \n \n The  claimant  in  this  matter  is a  62-year-old  male  who  has  alleged  to  have  sustained \ncompensable  injuries  to  his  left  shoulder  and  upper  left  extremity  on  December  3,  2021.  The \nclaimant  was  employed  by  the  respondent  on  December  3,  2021,  but  was  not  engaged  in  his \nnormal  job  duties  that  particular  day.  The  respondent-employer  is  in  the  business  of “trucking” \nor  moving  large  equipment  and  renting  out  forklifts.  The  claimant  normally  worked  for  the \nrespondent-employer hauling equipment with a semi-truck and trailer. However, on December 3, \n2021,  the  claimant  was  unable  to  perform  his  normal  job  duties  because  the  semi-truck  he \noperated  was  being  repaired.  The  claimant  testified  that  at  times  previously  when  the  truck  he \noperated was unavailable to him, he would make sales calls  for the respondent-employer in the \nFort  Smith  area.  On  December  3,  2021,  the  claimant  was  performing  those  sales  call  duties  for \n\nDawson – H109611 \n \n-4- \nthe respondent-employer. The claimant gave direct examination testimony about his day making \nsales calls on December 3, 2021, as follows: \nQ Okay. And what was wrong with it? Do you recall? \n \nA The  air  conditioner  was  broken  and  there  was  just –  no \nmajor issues other than the air conditioner. \n \nQ Do you remember about when the truck went down? \n \nA It  would  probably  be –  I  think  I  went  about  five  days \nwithout an air conditioner. \n \nQ Okay.  So  it  was  at  the  Peterbilt  dealership  being  repaired \non the day that this incident occurred? \n \nA Yes, sir. \n \nQ Okay.  Were  you,  in  fact,  doing  that  portion  of  your  job \nwhich  called  for  you  to  cold  call  businesses  and  try  to  drum  up \nbusiness? \n \nA Yes, sir. \n \nQ Okay. Do you remember where you had been that day prior \nto the location upon which you were injured? \n \nA I had a blue legal pad that every place I stopped I would get \na business card as I was instructed and then I would staple it to the \nlegal  pad  and  write  a  little  note  of  what  I  talked  about.  And  I \nstarted  up  in  Greenwood  and  made  a  loop  down  71  Highway  and \nthen  down  by  the  river  down  Wheeler  is  where  I  went  and  just \nmaking –  I  was  instructed  to  make  ten  calls  a  day.  Then  I  would \ntake my iPhone and take pictures of it, photos for the file deal, and \nI would email them to the Little Rock office as instructed. \n \nQ Who was your supervisor, if you had one? \n \nA Mike Vickers. \n \nQ Is that who you reported to? \n \nA Yes. \n \n\nDawson – H109611 \n \n-5- \nQ Okay. Was that your sole authority was Mike Vickers? \n \nA Yes. \n \nQ Was that the only person you ever dealt with? \n \nA Yes. \n \nQ Okay. Where was Mike located? \n \nA Little Rock, Arkansas. \n \nQ The Little Rock office? \n \nA Yes, sir. \n \nQ And  they  actually  had  a  brick-and-mortar  building  down \nthere? \n \nA Yes, sir. They have about five trucks. \n \nQ Okay.   And   was   it   Mike   Vickers   that   gave   you   this \nassignment  to  make  contacts  and  sales  calls  on  the  day  that  the \ntruck was not in operation? \n \nA Yes, sir. \n \nQ Okay. Is he the one that came up with the number ten? \n \nA Yes, sir. \n \nQ Okay.  What  about  the  business  card  and  the  proof,  whose \nidea was that? \n \nA His idea. \n \nQ Okay.  And  do  you  know  why  you  were  required  to  keep \ndetailed logs like that? \n \nA I   think   he   passed   it   onto   a   salesman.   I   was   like   an \nicebreaker and then he actually had a salesman in the area and then \nthey would follow up. \n \nQ Okay. Whose idea was it to bring a business card from each \ncall you made? \n\nDawson – H109611 \n \n-6- \n \nA Mr. Vickers. \n \nQ Okay. And you were instructed to do that? \n \nA Yes, sir. \n \nQ So on December 3\nrd\n, this was not the first day that you had \ngone out and made sales calls? \n \nA No, sir. \n \n During the claimant’s sales calls on December  3, 2021, he decided to stop at a business \nnamed “Whitt  Truck  Repair”  located  on  Wheeler  Street  in  Fort  Smith.  The  claimant  was  asked \non  direct  examination  about  why  he  decided  to  make  a  sales  call  to  Whitt  Truck  Repair  as \nfollows: \nQ Okay.  All  right.  So  what  led  you  to  stop  at  Whitt  Truck \nRepair? \n \nA I had known David and  he had done  work on my personal \ntrucks in the past and he was on my trail and I thought, well, I will \ngo  ahead  and  talk  to  David.  They  use  some  forklifts  because  they \ndo heavy truck repair. \n \nQ Okay. So David Whitt is the owner of Whitt Truck Repair? \n \nA Yes, sir. \n \nQ Okay. And you had a prior business relationship with him? \n \nA Yes, I did. \n \nQ Okay. So do you stop in there? \n \nA I did that day, yes. \n \n The claimant, prior to  and at least through the time of the hearing in this matter, owned \nhis own business by the name of “Town & Country Contractors” in addition to his employment \nwith   the   respondent-employer.   The   claimant   testified   that   he   started   Town   &   Country \n\nDawson – H109611 \n \n-7- \nContractors  roughly  25  years  before  his  employment  with  the  respondent-employer.  That \ncompany  performs  services  including  tree  cutting  and  earth  moving  with  a  bobcat  and  dump \ntruck.  The  company  also  grades  lots  and  can  dig  swimming  pools.  The  claimant  testified  that \nwhile  working  for  the  respondent-employer  he  performed  jobs  through  Town  &  Country \nContractors on the weekends.  \n The claimant described his personal business relationship with David Whitt, the owner of \nWhitt Truck Repair, on direct examination as follows: \nQ Okay.  So  getting  back  to  the  original  point,  your  Town  & \nCountry business is how you knew David Whitt prior to 12/3? \n \nA Yes, sir. \n \nQ Okay. Was it payment or did you all swap services, barter? \n \nA Sometimes  I  would  just  pay  him  if  he  wanted  to  get  paid, \nbut  if  he  needed  tree  work,  I  would  do  tree  work  for  him.  He  had \nmultiple rentals. It was a real casual thing. \n \nQ Okay.  And  how  long  had  that  been  going  on  between  you \nand David Whitt? \n \nA Probably seven years, six or seven years. \n \n On  December  3,  2021,  the  claimant  entered  Whitt  Truck  Repair  to  make  a  sales  call  to \nDavid Whitt, the owner of Whitt Truck Repair. The claimant gave direct examination testimony \nabout the events that followed: \nQ Okay.  So  you  are  in  your  own  truck.  You  stop  by  Whitt \nTruck Repair? \n \nA Yes, sir. \n \nQ Can you take us through what happened next. \n \nA Well, I stopped in to Whitt and I had previously called him \nto see if he could fix the air conditioner on the truck. \n\nDawson – H109611 \n \n-8- \n \nQ The one that was out at Peterbilt? \n \nA Yes, sir. \n \nQ Oh, okay. \n \nA And it was about three weeks before and he recommended I \ntake it to Jody’s, which is down the street, a repair place, because \nhe didn’t have time to mess  with  it  because  he  does  a  lot  of,  I \nguess, big stuff. That was small potatoes to him. \n \nQ Okay. \n \nA So I said okay. \n \nQ So  you  actually  talked  to  him  about  your  actual  truck  that \nwas sitting out at Peterbilt. \n \nA Yes, I did. \n \nQ So do you go in? \n \nA I  go  in.  I  walked  in  and  I  know  where  his  desk  is  and  I \nwalked around the corner and say hi and told him I had a pamphlet \nand  a  business  card  from  National  Lift.  And  I  told  him  that  I  was \nshaking  the  bushes  to  see  if  I  could  interest  him  in  any  forklift \nparts or just trying to break the ice. \n \nQ Okay. \n \nA And do what I was instructed to do, one of my ten calls for \nthe day. \n \nQ All right. And did he recognize you? \n \nA I don’t know if he did or not. I don’t know. \n \nQ Okay. \n \nA I  recognized  him.  I  have  had  multiple  dealings  with  him. \nHe would do mobile truck repair for my trucks and my trucks have \nbeen in his shop many times. \n \n*** \n\nDawson – H109611 \n \n-9- \nQ Okay.  So  you  indicated  that  you  had  gone  in  and  handed \nhim a pamphlet, a business card. By whom were those supplied to \nyou? \n \nA From National Lift of Arkansas. \n \nQ So those came from Little Rock? \n \nA Yes. \n \nQ And business card, was that a business card for you or just \nthe company in general? \n \nA It had the salesman’s name on it that was for the Fort Smith \nsalesman. \n \nQ Okay. \n \nA His name was – I can’t remember. \n \nQ Okay.  So  how  far  into  this  sale  call  did  you  all  talk  about \nthe services that National Lift provides? \n \nA Well,  for  several  minutes  we  did  and  I  was  at  his  desk. \nThen  he  brought  up  that  I  owed  him  some  tree  work  is  what  he \nsaid. I didn’t do a job that I was supposed to do. \n \nQ Okay. Had he likewise exchanged business cards? Did you \nhave one of his business cards? \n \nA Yes. \n \nQ Okay.  And  what  was  your  intent  on  having  that  business \ncard? \n \nA To staple it to the legal pad and be able to take a picture of \nit that night like I was instructed. \n \nQ Okay.   And   that   you   had   done   on   five   or   six   other \noccasions? \n \nA I think that was six or seven for the day. \n \nQ Okay.  That  day,  you  are  saying  that  was  the  sixth  or \nseventh call that day? \n\nDawson – H109611 \n \n-10- \n \nA Yes. \n \nQ But I mean on other occasions prior to December 3\nrd\n? \n \nA Oh, yes. \n \nQ Okay. So you have his card and he has your brochures and \nsales card from National Lift? \n \nA Yes, sir. \n \nQ Tell me what happened then. \n \nA At the point that he said I owed him, I said, “Well, David, \nlook up in the computer and show me what you’ve got,” and it was \nas  friendly  as  it  could  be  and  he  was  right  there,  you  know, \nbecause I couldn’t remember. It wasn’t that big of deal because \nwhat I had on the truck fixed was so minor. If I remember the last \ntime he worked on my truck, it was an adjustment of the valve on a \nboom truck where it couldn’t go all the way down, like the scissors \ndidn’t go all the way down. \n \nQ So admittedly, the conversation did turn from National Lift \nbusiness to your prior engagements with him as the owner of Town \n& Country? \n \nA Yes, sir. \n \nQ Okay. And tell me what you all discussed about this debt he \nfelt you owed him. \n \nA Well,  he  showed  me  on  a  computer.  He  said,  It’s  right \nhere.” \n \n And I said, “Okay.” Well, that is fair enough.” \n \n I said, “Well, David, there is two options we’ve got here.” I \nsaid, “I will write you a check or I’ve got some tree work to do,” \nbecause I had no idea he would be upset over anything like that. \n \nQ Okay. \n \nA And then I asked him, I said, “David, see Town & Country \nright  there,  see  the  phone  number?  I  have  had  that  phone  number \n\nDawson – H109611 \n \n-11- \nfor 20 years. If you had any issues with me, why didn’t you give \nme a call?” \n \n You  know,  like  it  was –  if  I  am  correct,  it  was  a  valve \nadjustment  on  a  truck  so  I  am  thinking,  well,  maybe  a  couple  of \nhours, 100 bucks an hour, 200 bucks. It was peanuts. \n \nQ Did you try to pay him? \n \nA Yes, I did. \n \nQ And? \n \nA And he said, “No. We are done.” \n \n And I said, “Okay. Fair enough.” \n \n And  he  started  getting  hostile  and  I  just  got  nervous  and  I \nthought I am getting out of here. \n \nQ Okay. And then what did you do? \n \nA I attempted to leave. I turned around and walked out as the \nvideo shows. I was just walking out like this and I had his card and \nhe grabbed me from behind. And then he spun me around and then \nwe kind of like (indicating) played patty-cake for a minute like this \n(indicating) because I guess he was attacking me over the business \ncard.  And  I  was  halfway  out  of  the  office  and  then  another  guy \ncome  up  from  behind  and  grabbed  me  from  behind  and  slammed \nme on the ground. \n \nQ Okay. Had you ever talked to that other person? \n \nA No. \n \nQ Who had it turned out that person was? \n \nA His son. \n \nQ Okay. Adult son? \n \nA (The witness nods his head up and down.) \n \nQ Okay. When you hit, what part of your body hit the floor? \n \n\nDawson – H109611 \n \n-12- \nA My left shoulder. \n \nQ Okay. Carpet, concrete? \n \nA Concrete. \n \nQ Concrete.  Okay.  Did  you  feel  pain  as  soon  as  you  it  the \nfloor? \n \nA I couldn’t move. \n \n The claimant was also questioned on cross examination  about the events at  Whitt Truck \nRepair on December 3, 2021, as follows: \nQ Whitt  Truck  Repair.  You  go  in  there  on  a  cold  call  as \ndirected by your employer; is that right? \n \nA That is correct. \n \nQ But you knew Mr. Whitt? \n \nA Yes, sir. \n \nQ But why did you say you don’t know if he knew you or \nnot? \n \nA Because  he  acted –  when  he  said,  “Well,  you  owe  me \nmoney.” It happened all at once. He might have just been pulling \nsomething, but he might have known me. I don’t know. I can’t \nanswer for him. \n \nQ How could he say that you owe him money if he didn’t \nknow you? \n \nA It’s when –  when  I  went  up  there –  I  will  start  from  the \nbeginning.  I  gave  him  the  card  and  brochure  from  National  Lift \nand we talked about that for a couple of minutes. And then he went \nin, “Well, you owe me money.” But we had a civil conversation \nfor several minutes about National Lift. \n \nQ Okay. \n \nA And  I  had  no  idea  that  he  would  be  hostile  towards  me  or \nviolent; otherwise, I wouldn’t have went in there. \n\nDawson – H109611 \n \n-13- \n \nQ Now,  you  said  you  were  shocked  that  he  said  you  owed \nhim money, that you didn’t realize you did owe him money; is that \nright? \n \nA That  is  correct  because  we  went  back  and  forth  multiple \ntimes over the years. He owed me. Sometimes I owed him. So if I \ndid tree work, I didn’t go and call him and say, “You owe me \nmoney  for  tree  work.”  I  just  waited  until  I  needed  some  truck \nrepair and then we would barter it. \n \nQ And  that  is  in  your  capacity  as  the  owner  of  Town  & \nCountry? \n \nA I  went  in  there  in  the  capacity  of  National  Lift  and  we \ntalked about that money for a period of time before we went back \nto in the capacity of National Lift with the business card. He spun \nme  around  mad  because  he  wanted  his  business  card  back  and  he \nshoved the pamphlets at me of his. So at that point I was just trying \nto  exit,  as  an  employee  of  National  Lift  exit  the  building.  And  I \ndon’t know if you have seen the video, but I was hunched over just \na little bit and I was headed out the door and he grabbed me like a \nbear. He is about 6 foot 6 and he is a professional bicycle rider and \nI am an old man. That’s when he spun me around wanting that card \nback  and  I  needed  that  card  because  I  was  instructed  by  my \ncompany  to  get  the  card  for  proof  that  I  made  these  stops  and  to \ntransfer that information over to the full-time salesman. \n \nQ But  the  money  that  was  owed  to  Whitt  Service  Company \nwas  owed  to  them  by  Town  &  Country?  This  money  that  he  said \nthat  you  owed  him  is  because  you  had  some  of  your  equipment \nfrom Town & Country worked on? \n \nA That is correct, a bucket truck. \n \nQ Okay. So that is all Town & Country’s debt that was owed \nthat wasn’t paid? \n \nA That’s what he claimed. \n \nQ Okay.  And  then  as  he  pulls  this  up,  you  said  you  made \nsome comments? \n \nA I made a comment. \n \n\nDawson – H109611 \n \n-14- \nQ That might have made him angry? \n \nA Maybe  so,  but  it  was  truth.  Right  next  to  my  name  is  my \nphone number and I said, “David, why didn’t you call me?” And I \ngot  it  still  to  this  day  in  my  phone  all  of  his  information.  And  it \nwasn’t because I had put it in there. It’s because he sent it to me. \n \nQ Okay. \n \nA Why he acted like an animal, I don’t know. \n \nQ So  he  grabbed  you  following  this  conversation  about  the \nmoney that Town & Country owed him; correct? \n \nA I don’t know why he grabbed me. He grabbed me because \nhe  wanted  his  business  card  back  that  I  needed  for  National  Lift. \nHe didn’t grab me because –  the  money  thing  was  over.  He  said, \n“We’re done.” That chapter was closed per David Whitt. \n \nQ Okay. \n \nA Now  I  am  leaving,  okay,  with  my  business  card  that  says \nDavid Whitt that is going to go on – as my employer instructed me \nto do. We were done with that conversation. And then he snatches \nme, this monster snatches me and spins me around and we do this \n(indicating).  And  then  another  monster  impales  me  to  the  ground \nand it changed my life. \n \n The  claimant  was  seen  at  Mercy  Hospital  Emergency  Department  in  Fort  Smith, \nArkansas,  after  his  altercation  at  Whitt  Truck  Repair.  Following  is  a  portion  of  the emergency \ndepartment record from that visit: \nHISTORY OF PRESENT ILLNESS \nSteven P. Dawson, a 60 y.o. male presents to the ED \n \nSteven P. Dawson is a 60 y.o. that presents with left shoulder pain \nsecondary  to  an  assault,  onset  unclear.  Patient  states  that  a  guy \nthrew him on the ground resulting in pain to the facial area and left \nshoulder that radiates downward to the forearm. Patient reports that \nthe pain improves when he props his arm on the counter. He denies \nLOC. He denies any other injuries at the time. \n \n\nDawson – H109611 \n \n-15- \n On  December  29,  2021,  the  claimant  underwent  an  MRI  of  his  left  shoulder.  Following \nwe find the  Impressions  section of that  MRI report performed  at Mercy Hospital and signed by \nDr. Leo Drolshagen. \nIMPRESSION: \n1.  Fracture  of  the  inferior  bony  glenoid  and  tear  of  anterior \ncartilaginous labrum. Also could be correlated with CT findings. \n2.   Fracture   of   the   humeral   head/greater   tuberosity   without \ndisplacement. \n3. Tear of supraspinatus tendon. \n4. High-grade partial tear subscapularis tendon. \n5.    Hypertrophy    acromioclavicular    joint.    Moderate    shoulder \neffusion. Extensive edema in proximal humeral marrow. \n \n On February 7, 2022, the claimant underwent surgical intervention at Mercy Orthopedic \nHospital at the hands of Dr. Steven Smith. Following is a portion of that operative report: \nPREOPERATIVE DIAGNOSES: \n1. Rotator cuff tear, left shoulder \n2. Biceps tendinopathy \n3. Acromioclavicular arthropathy. \n \nPOSTOPERATIVE DIAGNOSES: \n1. Rotator cuff tear, left shoulder. \n2. Biceps tendinopathy. \n3. Acromioclavicular arthropathy. \n \nPROCEDURE: \n1. Left shoulder arthroscopy. \n2. Arthroscopic rotator cuff repair. \n3. Arthroscopic biceps tenotomy. \n4. Arthroscopic acromioplasty with subacromial bursectomy. \n5.  Arthroscopic  distal  clavicle  resection  with  resection  AC  joint \nmeniscus. \n \n The  claimant  introduced  a  CD  into  evidence  that  contains  two  videos,  seemingly  the \nsame  events  from  two  different  views.  In  the  video  the  claimant  is  seen  entering  a  room  where \nDavid  Whitt  is  seated.  They  briefly  talk  and  exchange  objects,  presumably  David  Whitt’s \nbusiness  card  for  the  respondent-employer  sales  information  given  by  the  claimant.  The  men \n\nDawson – H109611 \n \n-16- \ncontinue  to  talk  until  eventually  the  claimant  begins  to  leave.  Mr.  Whitt  gives  chase  and  grabs \nthe  claimant  by  his  arm.  Brief  shoving  between  the  two  occurs  until  a  man  described  by  the \nclaimant  in  testimony  as  David  Whitt’s  son  intervenes.  The  son  puts  his  arms  around  the \nclaimant  and  releases  him  towards  the  ground.  The  claimant  hits  the  ground  and  remains  there \nfor  some  time.  I  note  that  the  video  provides  no  audio  recording  and  is  very  grainy  in \nappearance. It appears from the video evidence that the claimant’s injuries were sustained when \nhe hit the floor at the end of the altercation.  \n It is the claimant’s burden to prove by a preponderance of the evidence that he sustained \ncompensable injuries to his left upper extremity and left shoulder on or about December 3, 2021. \nIn  review  of  the  medical  evidence  submitted  into  the  record,  the  claimant  is  able  to  prove  the \nexistence of objective medical evidence to support his claim  on an upper left extremity and left \nshoulder  injury.  Both  the  MRI  and  operative  reports  support  the  occurrence  of  such  injuries. \nHowever, the claimant must also prove by a preponderance of the evidence that the injury arose \nout of and in the course of employment. Deffenbaugh Indus. v. Angus, 313 Ark. 100, 852 S.W.2d \n804 (1993). The claimant in this matter was certainly in the time, place and circumstance of his \nemployment given his duties to make sales calls on December 3, 2021, which would give rise to \na finding that the claimant was in the course of his employment at the time that he was injured. \nThe  claimant’s  burden,  however,  is  more  in  depth  than  merely  being  in  the  course   of \nemployment. He must also prove that his injuries arose out of that said employment. “Arising out \nof  employment”  refers  to  the  origin  or  cause  of  the  accident/incident,  while “in  the  course  of \nemployment” refers to the time, place circumstance under which the injury occurred. Little Rock \nConvention and Visitor Bureau v. Pack, 60 Ark. App. 8959 S.W.2d 415 (1997).  \n\nDawson – H109611 \n \n-17- \n After  a  review  of  the  claimant’s  testimony  and  the  video  evidence  submitted  into  the \nrecord, I find the origin or cause of the claimant’s incident to be that of a personal dispute over \nmoney Mr. Whitt believed the claimant owed him. The claimant was not involved in a physical \naltercation  by  chance,  random  act,  or  Mr.  Whitt’s  dislike  of  the  respondent-employer.  Instead, \nthe altercation occurred  because Mr. Whitt, rightfully or not, believed  the claimant owed him  a \npersonal debt arising from his personal business, Town & Country Contractors. This altercation \nthat caused the claimant’s injuries had nothing to do with his employment with the respondent-\nemployer and is solely based on his personal business issues. \n The  claimant  might  argue  the  positional-risk  doctrine,  which  stands  for  compensability \nwhen “conditions  related  to  employment  contribute  to  the  risk  by  placing  the  employee  in  a \nposition  that  increases  the  dangerous  effects  of  the  incident.”  This  is  stated  through  a  defense \ndiscussion of idiopathic falls in ERC Contractors Yard and Sales v. Robertson, 335 Ark. 63, 977 \nS.W.2d  212  (1998).  However,  here  there  is  no  positional  risk.  The  claimant  was  not  in  the \nprocess  of  performing  some  activity  that  was  inherently  risky,  such  as  driving  a  semi-tractor \ntrailer or being at a great height while working. Instead, the claimant walked into a business and \nwas involved in an altercation, not because of his work for the respondent-employer, but because \nof  what  Mr.  Whitt  believed  was  a  debt  owed  to  him  personally  by  the  claimant.  That  belief  by \nMr.  Whitt  is  the  origin  or  cause  of  the  claimant’s  injuries,  not  his  employment  with  the \nrespondent. This case is supported by the outcome of Kendrick v. Peel, Eddy and Gibbons Law \nFirm, 32 Ark. App. 29,  795 S.W.2d 365  (1990),  in which the Court of  Appeals cited 1 Larson, \nthe Law of Workers’ Compensation 6l.50 (3/90, as follows:  \nAn important and growing number of courts are accepting the full \nimplications  of  the  positional-risk  test:  An  injury  arises  out  of \nemployment if it would not have occurred but for the fact that the \n\nDawson – H109611 \n \n-18- \nconditions  and  obligations  of  the  employment  placed  claimant  in \nthe   position   where   he   was   injured....   This   theory   supports \ncompensation,   for   example,   in   cases   of   stray   bullets,   roving \nlunatics,  and  other  situations  in  which  the  only  connection  of  the \nemployment  with  the  injury  is  that  its  obligations  placed  the \nemployee in the particular place at the particular time when he was \ninjured   by   some   neutral   force,   meaning   by “neutral”   neither \npersonal   to   the   claimant   nor   distinctly   associated   with   the \nemployment. \n \n The  claimant  has  failed  to  prove  by  a  preponderance  of  the  evidence  that  he  sustained \ncompensable injuries to his upper left extremity and left shoulder on or about December 3, 2021.  \n The  respondent  made  a  motion  to  supplement  the  record  with  the  claimant’s  deposition \ntranscript  in  an  email  to  the  Commission  on  August  18,  2023.  The  respondent’s  motion  to \nsupplement is denied. \n From a review of the record as a whole, to include medical reports, documents, and other \nmatters properly before the Commission, and having had an opportunity to hear the testimony of \nthe  witness  and  to  observe  his  demeanor,  the  following  findings  of  fact  and  conclusions  of  law \nare made in accordance with A.C.A. §11-9-704: \n FINDINGS OF FACT & CONCLUSIONS OF LAW \n 1.  The  stipulations  agreed  to  by  the  parties  at  the  pre-hearing  conference  conducted  on \nApril 24, 2023, and contained in a Pre-hearing Order filed April 25, 2023, are hereby accepted as \nfact. \n 2. The claimant has failed to prove by a preponderance of the evidence that he sustained \ncompensable injuries to his left upper extremity and left shoulder on or about December 3, 2021.   \n 3.  The  claimant  has  failed  to  prove  that  he  is  entitled  to  medical  treatment  for  those \nalleged injuries. \n 4. The claimant has failed to prove his entitlement to temporary total disability benefits. \n\nDawson – H109611 \n \n-19- \n 5. The claimant has failed to prove that his attorney is entitled to an attorney’s fee in this \nmatter.  \n ORDER \n Pursuant to the above findings and conclusions, I have no alternative but to deny this \nclaim in its entirety. \nIf  they  have  not  already  done  so,  the  respondents  are  directed  to  pay  the  court  reporter, \nVeronica Lane, fees and expenses within thirty (30) days of receipt of the invoice. \n \n IT IS SO ORDERED. \n \n \n \n                                ____________________________                                              \n       HONORABLE ERIC PAUL WELLS \n       ADMINISTRATIVE LAW JUDGE","preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H109611 STEVEN DAWSON, Employee CLAIMANT NATIONAL LIFT TRUCK, Employer RESPONDENT LIBERTY MUTUAL GROUP, Carrier RESPONDENT OPINION FILED OCTOBER 10, 2023 Hearing before ADMINISTRATIVE LAW JUDGE ERIC PAUL WELLS in Fort Smith, Sebastian County, Arkansas. Claima...","fetched_at":"2026-05-19T23:01:20.026Z","links":{"html":"/opinions/alj-H109611-2023-10-10","pdf":"https://labor.arkansas.gov/wp-content/uploads/DAWSON_STEVEN_H109611_20231010.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}