{"id":"alj-H202662-2023-06-27","awcc_number":"H202662","decision_date":"2023-06-27","opinion_type":"alj","claimant_name":"David Ferren","employer_name":"Townsell & Hill, Inc","title":"FERREN VS. TOWNSELL & HILL, INC. AWCC# H202662 JUNE 27, 2023","outcome":"denied","outcome_keywords":["dismissed:1","granted:1","denied:2"],"injury_keywords":["shoulder","rotator cuff","back"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/FERREN_DAVID_H202662_20230627.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"FERREN_DAVID_H202662_20230627.pdf","text_length":15673,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \n CLAIM NO.: H202662 \n \nDAVID W. FERREN, EMPLOYEE                                                                       CLAIMANT \n \nTOWNSELL & HILL, INC., EMPLOYER                                  RESPONDENT \n \nSTONETRUST COMMERCIAL INS. CO., \n INSURANCE CARRIER                                                                                    RESPONDENT  \n \nSTONETRUST INSURANCE, THIRD PARTY    \nADMINISTRATOR(TPA)                                                                                  RESPONDENT \n \n   OPINION FILED JUNE 27, 2023 \n \nHearing held before Administrative Law Judge Chandra L. Black in Little Rock, Pulaski County, \nArkansas. \n \nThe Claimant, pro se, unrepresented.  \nThe Respondents represented by the Honorable Mr. Zachary F. Ryburn, Attorney at Law, Little \nRock, Arkansas.   \n     Statement of the Case \nOn  April  26,  2023,  the  above-captioned  claim  came  on  for  a  hearing  in  Little  Rock, \nArkansas.  A pre-hearing telephone conference was conducted on February 22, 2023, from which \na Pre-hearing Order\n1\n was filed on that same day.  A copy of said order and the parties’ responsive \nfilings have been marked as Commission’s Exhibit No. 1 and made a part of the record without \nobjection.    \n \n1\n It appears that I inadvertently omitted the Pre-hearing Order from the April 26, 2023, hearing transcript.  \nTherefore, it has been blue-backed and merged into the hearing transcript by reference.   \n\nFerren – H202662 \n2 \n \n \nStipulations \n By agreement of the parties the stipulations applicable to this claim are as follows: \n1. The Arkansas Workers’ Compensation Commission has jurisdiction of the within  \n \nclaim. \n \n \n2. That  the  employee-employer-carrier  relationship  existed  at  all  relevant  times \nincluding on or about September 22, 2019, when the Claimant allegedly sustained \nan injury to his right shoulder. \n3. The parties will stipulate to the Claimant’s average weekly wage (AWW) as well \nas the corresponding compensation rates later. \n4. The Respondents have controverted this claim in its entirety.  \n \n5. All   issues   not   litigated  herein  are  reserved  under  the  Arkansas  Workers’ \nCompensation Act. \n6. The Respondents have not paid any benefits on this claim.\n2\n  \nIssues \nBy agreement of the parties, the issues to be adjudicated at the hearing are as follows: \n1.  Whether this claim is barred by the statute of limitations. \n2.         Whether the Claimant sustained a compensable injury to his right shoulder. \n \n2\n At the beginning of the hearing, the parties jointly agreed that the Respondents have not paid any benefits \nto or on behalf of the Claimant in this matter.  \n\nFerren – H202662 \n3 \n \n \n3. Whether the Claimant is entitled to medical treatment for his alleged injury.  \n4. Whether the Claimant is entitled to temporary total disability compensation from  \nSeptember 23, 2019 through a date yet to be determined. \nContentions \nThe parties’ contentions are set forth below.   \nClaimant:   \nThe  Claimant  contends  that  he  sustained  a  compensable  injury  to  his  right  shoulder  on \nSeptember 22, 2019.  Per the Claimant’s responsive filing, his injury occurred as follows: “While \nflagging for a cane operator, I was pulling the rig to clear the crane and he fell through a beam and \ntore his rotator cuff.”   He further contends that he is entitled to medical treatment and temporary \ntotal disability for his alleged shoulder injury.    \n Respondents: \n The  Respondents  stated in their responsive filing, “The  statute  of  limitations  has  run  on \nthis claim.  The injury did not occur.” \n                     FINDINGS OF FACT AND CONCLUSIONS OF LAW \nBased on my review of the record as a whole, to include the aforementioned documentary \nevidence, other matters properly before the Commission, and after having had an opportunity to \nhear the testimony of the Claimant and observe his demeanor, I hereby make the following findings  \nof fact and conclusions of law in accordance with Ark. Code Ann. §11-9-704 (Repl. 2012): \n1.     The Arkansas Workers’ Compensation Commission has jurisdiction over this  \n    claim. \n \n\nFerren – H202662 \n4 \n \n \n \n2.       I hereby accept the above-mentioned proposed stipulations as fact. \n            \n3.       Claimant has failed to prove by a preponderance of the evidence, that his claim was \n                      timely filed.  Instead, the evidence preponderates that this claim for initial benefits   \n          is barred by the statute of limitations period set forth in Ark. Code Ann. §11-9-702   \n          (Repl. 2012).  \n4.        Because of the above findings/conclusions, the remaining issues— whether Claimant  \nsustained  a  compensable  injury  to  his  shoulder  by  specific  incident;  whether  he  is \nentitled to reasonable and necessary medical treatment; and temporary total disability \nbenefits —are moot due to the above finding and have not been addressed herein.  \nSummary of Evidence \nDuring the hearing, the only witness to testify was the Claimant, Mr. David Wayne Ferren.  \n            The record consists of the April 26, 2023 hearing transcript, comprising of the following \nexhibits: Specifically, Commission’s Exhibit No. 1 (the Prehearing Order has been blue-backed) \nincludes  the  Commission’s  Prehearing  Order  filed  on February  22,  2023  and  the  parties’ \nresponsive filings; Respondents’ Exhibit No. 1 is entitled Respondents’ Documentary Index, \nwhich consists of a cover sheet and six numbered pages. \n                                                  Testimony \n  \n The  Claimant,  age  62,  has  a  high  school  education.    He  has  prior  work  experience  as  a \ncarpenter for a construction company.  The Claimant confirmed that he is alleging a work-related  \n \n\nFerren – H202662 \n5 \n \n \ninjury to his shoulder.  According to the Claimant, he reported his injury to Mr. Mitchell Gough, \nhis boss. \n Specifically,  the  Claimant  offered  the  following  account  of  his  conversation  with  Mr. \nGough: \nMR. FERREN:  I went down and told him – I told him I just fell, and I said, “I don’t know \nwhat I did but I can’t move my shoulder at all.”  So he called Todd and reported it, and \nthey were supposed to’ve made a accident report on the job. \n \nThe Claimant testified that Todd is the owner of Townsell & Hill/the respondent-employer.   \nHe  confirmed  that  they  did  not  offer  him  any  medical  treatment.  The  Claimant  testified  that  he \nwent to the doctor on his own, and they performed an X-ray of his shoulder.  However, according \nto the Claimant, it did not reveal anything.  The Claimant worked for the respondent-employer for \nfourteen months after his alleged injury, before losing his job.   \n Subsequently, the Claimant obtained an MRI of his shoulder approximately two years after \nthe incident.  However, the Claimant did not recall the exact date the MRI was performed.  The \nClaimant verified that he is alleging an injury to his right shoulder.  He denied any prior problems \nwith his right shoulder or having sought any medical treatment for his shoulder before his alleged \nwork-related incident.  The Claimant last worked in March 2022.  According to the Claimant, his \nemployment was ended because he told a coworker he was not going to wear a harness anymore \nbecause it hurt his shoulder.  The Claimant further explained that his coworker reported what he \nhad said to Todd (Townsell), and he did not give him a chance to explain, he just fired him. \n  \n\nFerren – H202662 \n6 \n \n \nThe Claimant admitted he filed a claim for an injury to his shoulder after he obtained the \nMRI.  He confirmed having filed a Form AR-C with the Commission.  The Claimant verified that \nhe did not file a claim until two years after his injury.  He was asked again if the Respondents ever  \npaid on his claim, and his reply was, “Nope.”  The Claimant used his personal health insurance \nthat he obtained through the company (the respondent-employer) to pay for his medical treatment. \n He  confirmed  that  he  did  not  file  a  claim  for  his  shoulder  condition  until  April  4,  2022.  \nThe Claimant verified that he filed a Form AR-C with the Commission at that time.  He admitted \nthat he signed the form on March 30, 2022.  Next, the Claimant maintained that he filed a claim \nprior to April 4, by calling the Commission.  Then, the Claimant stated that he does not know if \nhe filed a claim before April 4, 2022.   \nOn  cross-examination,  the  Claimant  was  shown  an  intake  form/clinic  note  from  Unity \nHealth/Searcy Medical Center.  The Claimant obtained medical treatment from that facility on July \n22, 2021.  Per this form, the Claimant reported that he fell and hurt his shoulder at work about six \nyears  ago.    However,  the  Claimant  denied  having  an  injury  to  his  shoulder  six  years  ago.    The \nClaimant testified that the first time he went to the doctor was in 2019.   He agreed that the form \nshould read he had an injury a little over two years ago.   \nThe  Claimant  confirmed  that  he  fell  between  some  rafters/a  bottom  beam  and  hurt  his \nshoulder as he reported in his interrogatories.  He further explained: \nMR.  FERREN:  I  loaded   --  I  flagged  in  a  crane  with  a  full  bundle  of  plywood,  and  the \nchoker turned up and I pulled on the choker to get it unplug, and when it broke loose, it \nmade me stepped back and I stepped in the beam and landed right on my shoulder.    \n \nHe confirmed that he drew unemployment benefits after the respondent-employer fired  \n \n\nFerren – H202662 \n7 \n \n \nhim.  The Claimant admitted that he filed a claim after he got the MRI done.  According to the \nClaimant,  it  took  him  over  four  months  to  get  approval  for  the  MRI  through  his  private  health \ninsurance.  \n                                                    Medical Evidence \nThere is  only  one  medical  record  of  evidence.    On  July  22,  2021,  the  Claimant  sought \nmedical treatment from Unity Health at Searcy Medical Center.   Dr. Justin O. Franz evaluated the \nClaimant due to a chief complaints of right shoulder injury/pain.  Per this clinic note, the Claimant \nunderwent an MRI of the right shoulder on June 28, 2021, with an impression of, in relevant part: \n“A  full  thickness  near  full  width  tear  of  the  supraspinatus...”  Dr. Franz assessed the Claimant \nwith “1.  Localized primary osteoarthritis of right shoulder.  2. Chronic tear of rotator cuff tendon-\nunspecified  rotator  cuff  tear  or  rupture  of  right  shoulder,  not  specified  as  traumatic.    3.  \nNontraumatic rupture of right shoulder, not specified as traumatic.”     \n          Adjudication \nA.  Statute of Limitations  \n The crucial issue for determination is whether the Claimant filed a timely claim for benefits \nwith  the  Commission  for  his  alleged  September  22,  2019,  right  shoulder  injury.    The  Claimant \nessentially alleges that he timely filed a claim for his alleged shoulder injury of September 22,  \n \n\nFerren – H202662 \n8 \n \n \n2019, for which he is entitled to associated benefits.   Respondents contend that this claim is barred \nby the statute of limitations. \nIn that regard, Arkansas law limits the time in which a claim for compensation may be filed. \nThe relevant statute of limitations is set out in Ark. Code Ann. §11-9-702 (a) (1), which states in \npertinent part:  \nA claim for compensation for disability on account of an injury, other than an occupational \ndisease  and  occupational  infection,  shall  be  barred  unless  filed  with  the  Workers' \nCompensation Commission within two (2) years from the date of the compensable injury.  \nIf, during the two-year period following the filing of the claim, the  Claimant receives no \nweekly benefit compensation and receives no medical treatment resulting from the alleged \ninjury, the claim shall be barred thereafter.   \n \nThe burden rests on Claimant to prove that his claim was timely filed. Stewart v. Ark. Glass \nContainer, 2010 Ark. 198, 366 S.W.3d 358; Kent v. Single Source Transp., 103 Ark. App. 151, \n287 S.W.3d 619 (2008).  Under Ark. Code Ann. §11-9-705(a)(3) (Repl. 2012), he must prove this,  \nby  a  preponderance  of  the  evidence.   The standard “preponderance of the evidence” means the \nevidence having greater weight or convincing force. Barre v. Hoffman, 2009 Ark. 373, 326 S.W.3d \n415; Smith v. Magnet Cove Barium Corp., 212 Ark. 491, 206 S.W.2d 442 (1947). \nThe  Claimant  admitted  that  he  did  not  receive  any  type  of  payment for  medical  or   \nindemnity benefits from the Respondents for his alleged shoulder injury of September 22, 2019. \nMoreover, the Claimant’s testimony is corroborated by the documentary evidence, and there is no  \n\nFerren – H202662 \n9 \n \n \nprobative evidence to the contrary.   In fact, the Claimant initially readily admitted that he did not \nfile a claim for benefits until the filing of the Form AR-C, which occurred on April 4, 2022.  I  \nfound this part of his testimony credible.  However, the Claimant later denied that this was the first \ntime  he  filed  his  claim.    Instead,  the  Claimant  maintained  he  filed  a  claim  by  calling  the \nCommission.    While  such  action  does  not  constitute  the  filing  of  a  claim,  I  must  note  that  the \nClaimant  has  introduced  no  probative  evidence  to  establish  this  statement.    Of  significance,  the \nClaimant contradicted himself and gave conflicting and confusing testimony in this regard.  I found \nthe Claimant to be less than forthcoming in his assertion of having filed a claim before April 4, \n2022.    Nevertheless,  the  evidence  before  shows  that  the  Claimant  did  not  file  a  claim  with  the \nCommission for his alleged shoulder injury until April 4, 2022.              \n No benefits have been paid  on this claim.   Therefore, this is  a claim for initial worker’s \ncompensation benefits.  The Claimant’s alleged  date  of  injury  for  his  right  shoulder  injury  is \nSeptember 22, 2019.   Hence, the Claimant had until September 22, 2021, to file a claim with this \nCommission.   However, the evidence before clearly demonstrates that the Claimant did not file a \nclaim  with  this  Commission  until  April  4,  2022,  when  he  filed  the  Form  AR-C.    Hence,  no \nprobative evidence in the record indicates otherwise.  This leads me to conclude that the filing of \nthis claim is more than two years from the date of the alleged injury.  Considering the foregoing, \nI  am  compelled  to  conclude  that  this  claim  is  time-barred  pursuant  to  the  specified  statute  of \nlimitations for a claim of initial benefits.      \n\nFerren – H202662 \n10 \n \n \nB.  Remaining Issues  \nBecause  of  the  foregoing,  the  remaining  issues—whether  Claimant  alleged  that  he \nsustained a compensable injury to his right by specific incident; whether he is entitled to reasonable \nand necessary medical treatment; and temporary total disability benefits —are moot and will not \nbe addressed. \n                                                         ORDER \nIn accordance with the findings of fact and conclusions of law set forth above, this claim \nfor initial workers’ compensation benefits is barred by the statute of limitations.  As such, this  \nclaim for benefits must be, and it hereby, respectfully denied and dismissed.   \nIT IS SO ORDERED. \n \n \n                                  _____________________________                                                            \n                     Honorable Chandra L. Black \n                     Administrative Law Judge","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO.: H202662 DAVID W. FERREN, EMPLOYEE CLAIMANT TOWNSELL & HILL, INC., EMPLOYER RESPONDENT STONETRUST COMMERCIAL INS. CO., INSURANCE CARRIER RESPONDENT STONETRUST INSURANCE, THIRD PARTY ADMINISTRATOR(TPA) RESPONDENT OPINION FILED JUNE 27, 2023 Hearing held befo...","fetched_at":"2026-05-19T23:06:50.774Z","links":{"html":"/opinions/alj-H202662-2023-06-27","pdf":"https://labor.arkansas.gov/wp-content/uploads/FERREN_DAVID_H202662_20230627.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}