{"id":"alj-H206201-2023-09-13","awcc_number":"H206201","decision_date":"2023-09-13","opinion_type":"alj","claimant_name":"Charles Mackey","employer_name":"Dragon Woodland Sawmill Corp","title":"MACKEY VS. DRAGON WOODLAND SAWMILL CORP. AWCC# H206201 SEPTEMBER 13, 2023","outcome":"granted","outcome_keywords":["dismissed:1","granted:2","denied:1"],"injury_keywords":["knee","back"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/MACKEY_CHARLES_H206201_20230913.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"MACKEY_CHARLES_H206201_20230913.pdf","text_length":16540,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H206201 \n \n \nCHARLES E. MACKEY, EMPLOYEE CLAIMANT \n \nDRAGON WOODLAND SAWMILL CORP., \n EMPLOYER RESPONDENT \n \nTRAVELERS PROP. & CASUALTY CORP., \n CARRIER RESPONDENT \n \n \nOPINION FILED SEPTEMBER 13, 2023 \n \nHearing before Administrative Law Judge O. Milton Fine II on  July 28, 2023, in Marion, \nCrittenden County, Arkansas. \n \nClaimant pro se. \n \nRespondents  represented  by  Mr.  Guy  Alton  Wade,  Attorney  at  Law,  Little  Rock, \nArkansas. \n \n \nSTATEMENT OF THE CASE \n On July 28, 2023, the above-captioned claim was heard in Marion, Arkansas.  A \nprehearing conference took place on May 22, 2023.  The Prehearing Order entered that \nsame day  pursuant  to  the  conference  was  admitted  without  objection  as  Commission \nExhibit  1.    At  the  hearing,  the  parties  confirmed  that  the  stipulations,  issues,  and \nrespective contentions, as amended, were properly set forth in the order. \nStipulations \n The parties discussed the stipulations set forth in Commission Exhibit 1.  After an \namendment at the hearing, they read as follows: \n1. The  Arkansas  Workers’  Compensation  Commission  has  jurisdiction  over \nthis claim. \n\nMACKEY – H 206201 \n \n2 \n2. The  employee/employer/carrier/third-party  administrator  relationship  exis- \nted among the parties on November 30, 2021, when Claimant sustained a \ncompensable injury to his left knee by specific incident. \n3. Respondents accepted this claim as a medical-only one and paid benefits \npursuant thereto. \n4. Claimant’s average weekly wage of $411.90 entitles him to compensation \nrates of $275.00/$206.00. \nIssue \n At the hearing, the following was litigated: \n1. Whether Claimant is entitled to temporary total disability benefits. \n All other issues have been reserved. \nContentions \n The respective contentions of the parties are as follows: \n Claimant: \n1. Claimant  contends that he is  entitled  to  temporary  total  disability  benefits \nin connection with his stipulated compensable left knee injury. \nRespondents: \n1. Respondents  contend  that  they  accepted  and  have  paid  reasonable, \nnecessary  and  related  medical  treatment  in  connection  with  Claimant’s \ncompensable   injury      His   Form   AR-C   and   prehearing   questionnaire \nresponse note two different dates of injury to which Respondents have no \nknowledge or notice as none was reported on either date.  IF Claimant is \n\nMACKEY – H 206201 \n \n3 \ncontending  any  injury  on  the  January  10,  2021,  date,  the  statute  of \nlimitations  has  run.    IF  Claimant  is  contending  an  injury  on  January  5, \n2022,  this  is  the  first  notice  received  by  Respondents,  and  they  are  not \nresponsible for any related medical treatment. \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n After reviewing the record as a whole, including medical reports, documents, and \nother  matters  properly  before  the  Commission,  and  having  had  an  opportunity  to  hear \nthe  testimony  of  Claimant  and  to  observe  his  demeanor,  I  hereby  make  the  following \nfindings  of  fact  and  conclusions  of  law  in  accordance  with  Ark.  Code  Ann. §  11-9-704 \n(Repl. 2012): \n1. The  Arkansas  Workers’ Compensation  Commission  has  jurisdiction  over \nthis claim. \n2. The stipulations set forth above are reasonable and are hereby accepted. \n3. Claimant   has   not   proven   by   a   preponderance   of   the   evidence   his \nentitlement to temporary total disability benefits for any period. \nCASE IN CHIEF \nSummary of Evidence \n Claimant was the sole witness. \n Along  with  the  Prehearing  Order  discussed  above,  the  exhibits  admitted  into \nevidence  in  this  case  were  Claimant’s  Exhibit  1,  a  compilation  of  his  medical  records, \nconsisting  of  seven  numbered  pages;  Respondents’  Exhibit  1,  another  compilation  of \nClaimant’s  medical  records, consisting  of  one  index  page  and 18  numbered  pages \n\nMACKEY – H 206201 \n \n4 \nthereafter; Respondents’ Exhibit 2, Claimant’s Form AR-C and prehearing questionnaire \nresponse, consisting of one index page and four numbered pages thereafter; and Joint \nExhibit 1, copies of the Form AR-W for this claim, consisting of two pages. \nAdjudication \n As  the  parties  stipulated supra,  Claimant  was  an  employee  of  Respondent \nDragon  Woodland  Sawmill  Corporation  (“Dragon”)  on November 30,  2021,  when  he \nsuffered a compensable injury to his left knee in a specific incident.  They accepted this \nas  a  medical-only  claim  and  furnished  benefits  in  connection  with  it.    In  this  action, \nClaimant has asserted that Respondents should also pay him temporary total disability \nbenefits.  They dispute this. \n Claimant’s stipulated  compensable  injury  is  a  scheduled  one.   See Ark.  Code \nAnn.  §  11-9-521(a)(4)  (Repl.  2012).    An  employee  who  has  sustained a  compensable \nscheduled injury is entitled to temporary total disability compensation “during the healing \nperiod  or  until  the  employee  returns  to  work,  whichever  occurs  first  .  .  .  .”  Id.  §  11-9-\n521(a).   See  Wheeler  Const.  Co.  v.  Armstrong,  73  Ark.  App.  146,  41  S.W.3d  822 \n(2001).    The  healing  period  ends  when  the  underlying  condition  causing  the  disability \nhas  become  stable  and  nothing  further  in  the  way  of  treatment  will  improve  that \ncondition.  Mad Butcher, Inc. v. Parker, 4 Ark. App. 124, 628 S.W.2d 582 (1982). \n Claimant  must  prove  his  entitlement  to  temporary  total  disability  benefits  by  a \npreponderance  of  the  evidence.    Ark.  Code  Ann.  §  11-9-705(a)(3)  (Repl.  2012).    This \nstandard  means  the  evidence  having  greater  weight  or  convincing  force.   Barre  v. \n\nMACKEY – H 206201 \n \n5 \nHoffman,  2009  Ark.  373,  326  S.W.3d  415;  Smith  v.  Magnet  Cove  Barium  Corp.,  212 \nArk. 491, 206 S.W.2d 442 (1947). \n A claimant’s testimony is never considered uncontroverted.  Nix v. Wilson World \nHotel,  46  Ark.  App.  303,  879  S.W.2d  457  (1994).    The  determination  of  a  witness’ \ncredibility and how much weight to accord to that person’s testimony are solely up to the \nCommission.  White v. Gregg Agricultural Ent., 72 Ark. App. 309, 37 S.W.3d 649 (2001).  \nThe  Commission  must  sort  through  conflicting  evidence  and  determine  the  true  facts.  \nId.  In so doing, the Commission is not required to believe the testimony of the claimant \nor  any  other  witness,  but  may  accept  and  translate  into  findings  of  fact  only  those \nportions of the testimony that it deems worthy of belief.  Id. \n Claimant, who is 45 years old and attended two years of college, testified that his \njob  at  Dragon,  a  timber-cutting  business,  was  to  use  a  chainsaw  to  remove  all  of  the \nlimbs from trees that had been felled.  Asked how he injured his knee on November 30, \n2021, he responded: \nDuring   November   we   was—I   can’t   remember   the   time,   but   I   was \napproaching a tree.  I was cutting up a big tree.  It was a big tree, a limb \noff  the  tree.    And  I  was  cutting,  although  the  saw  was  dull,  but  I  was \nholding the tree cutting it, cutting it, cutting, it, and while I was going down, \nit kicked back.  So I went underneath the tree, started cutting at the bottom \nof the tree, and then I went back on top to finish . . . [s]o during the time I \nwent  back  on  top  of  the  tree,  when  I’d  keep—it  was—I  was  cutting  the \ntree, the limb, and it kicked back, so I held it—I held it down like this right \nhere so I could put force on it to keep at it.  And during the process when I \nwas cutting it, when it kicked back, I pushed it back down to hold it to keep \nit from coming back, and I went down on my  left knee.  I cut my left knee \ntrying to hold it, the chainsaw, down in the wood so I could finish cutting it. \n \n\nMACKEY – H 206201 \n \n6 \n According to Claimant, the contact with the chainsaw left more than a superficial \nwound: \n“Whew, it was—ooee.  I ain’t never seen a bone before inside of a human \nbody until I seen my own, but I cut it right across at an angle, and I cut the \ntop of it and the gristle.  It was cut pretty deep . . . you could see the bone \nit it . . . [i]t was like a filet. \n \n Following the accident, Claimant was transported to Forrest City Medical Center, \nwhere  he  was  seen  in  the  emergency  room.    The  records  of  that  visit  show  that  he \npresented with multiple left knee lacerations that measured from 2.6 to 7.5 cm long and \nwere  no  longer  bleeding.    Following  x-rays,  he  was  diagnosed  as  having,  inter alia,  a \nfractured  left patella.   The cuts  were  closed with  eight “simple  sutures.”  Claimant  was \nonly off work for one day—December 1, 2021—due to his knee.  On December 2, 2021, \nhe went back to work at Dragon. \n The  records  of  Claimant’s  emergency  room  visit—the  sole  treatment  he  has \nundergone in connection with his knee injury—do not reflect that he was taken off work.  \nThe following exchange occurred: \nQ. So  far  as  you  know,  there’s  not  a  doctor  that’s  taken  you  out  of \nwork, correct? \n \nA. Correct. \n \nHowever,  he  also  testified  that  emergency  room  personnel  advised  that  he  take  some \ntime off work.  He did this—staying away from his job a single day.  His records also do \nnot  show  that  he  was  assigned  light  duty  by  a  physician.    But  Claimant disagreed, \nstating that that this occurred and, based on this, his duties at Dragon were modified for \nroughly  three  weeks.    They  consisted  of  his  sitting  on  the  tailgate  of  a  pickup  truck, \n\nMACKEY – H 206201 \n \n7 \nsharpening and servicing the chainsaws.  Claimant explained why he could not resume \nhis regular limb-cutting tasks at that point: \nI wasn’t eligible to do any walking . . . [w]asn’t able to put no pressure.  A \nchainsaw weighs 20 pounds.\n1\n  I couldn’t put no pressure on my leg, and I \ncouldn’t do no walking.  I was going through mud and sticks, because we \nwas in the woods. \n \n According to Claimant, after this period of light duty, he went home to Mississippi \nfor  Christmas.    In  early  January  2022,  when  the  timber-cutting  project  in  Arkansas \nresumed, he was returned to his former job because the timber crew was short-handed.  \nHis  supervisor,  Joe,  made  this  determination  and  informed  him.    Claimant’s  testimony \non this matter was inconsistent.  He first said that he was only able to trim “two to three \ntrees.”  Later, he stated that he successfully resumed his regular duties for two or three \ndays  but  was  unable  to  continue  at  some  point  on  the  last  day.    Asked  what  was \nhappening while he was doing this, he replied:  “My knee was like—it was stiffening up.  \nIt  was  getting  sore.    It  was  stiffening  up  and  I  just  couldn’t  bear  the  pain.”  Claimant \ndescribed having trouble  walking, steadying himself in the mud, and applying  pressure \nto cut the limbs.  He stated that once he began cutting a second tree, he had to cease \nworking because his leg was “tingling . . . and it was just too stiff to bear it.”  Claimant \nreturned to the work truck, and his fellow crew members brought the trees to him there \nto strip.\n2\n  While their work day normally ended at 5:00 p.m., Claimant had to stop using \nthe  chainsaw  that  day  at  3:00  p.m.  because  he  felt  he  could  not  continue.    From  that \n \n \n1\nShortly thereafter, Claimant related that he was “carrying a 15-pound chainsaw,” \nand offered no explanation for the weight discrepancy. \n \n2\nClaimant  did  not  make  clear  on  which  day  this  impromptu  modification  took \nplace. \n\nMACKEY – H 206201 \n \n8 \npoint until quitting time, he simply gathered trash for burial.  Joe approved of this.   The \ntestimony of Claimant was that he did not request to go back to the chainsaw-servicing \njob. \n Later  that  evening,  per  Claimant,  he  informed  Joe  that  he  would  not  be  able  to \nfinish the job.  Joe responded that he understood, and that Claimant had to do whatever \nhe  had  to  do.    The  next  day,  Joe  drove  him  from  the  Arkansas  jobsite  back  to \nMississippi. \n The following exchange took place on direct examination: \nQ. Were you—did you ever go back to work for Dragon? \n \nA. No, sir. \n \nQ. Okay.  Did anybody from Dragon ever tell you don’t come back, or \nfire you or anything? \n \nA. No, sir. \n \nQ. Okay.    As  of  sitting  here  today,  do  you  know  if  you’re  still  an \nemployee of Dragon? \n \nA. No, sir. \n \nQ. You don’t know whether or not you are? \n \nA. I know I’m not. \n \nQ. Why do you know that? \n \nA. (No audible response) \n \nQ. Did anybody ever tell you you were fired? \n \nA. No, sir. \n \nQ. Did you tell Joe you were quitting? \n\nMACKEY – H 206201 \n \n9 \n \nA. I did told him I couldn’t handle it. \n \nQ. I mean, did you resign your job? \n \nA. Yes,  sir.    Yes,  sir.    Well,  to  my  knowledge,  I  heard  they  wasn’t  in \nbusiness no more or something. \n \nQ. Okay.  But I was trying to find out on this— \n \nA. Okay. \n \nQ. —you basically told your supervisor that you were quitting your job? \n \nA. Yes, sir. \n \nQ. Okay.  And he took you home to Mississippi? \n \nA. Yes, sir. \n \nThe subject arose again on cross-examination: \nQ. Now, you were not fired from Dragon, were you? \n \nA. No, sir. \n \nQ. All right.  You decided you just couldn't do the job and so you took \nyourself out of work? \n \nA. Yes, sir. \n \nQ. And you told Joe, “I’m not coming back.” \n \nA. Yes, sir. \n \nQ. Now,  you’ve  not  been  back  to  Dragon  to  work  at  any  point  after \nthat? \n \nA. No, sir. \n \n\nMACKEY – H 206201 \n \n10 \n After his resignation, Claimant did not go back to work anywhere  for about three \nand  one-half  months.   He  asked  that he be awarded  temporary  total  disability benefits \nfor this period  In describing his condition during this time, he related: \n[T]here  where  [sic]  the  months  I  was  out,  I  just  couldn’t  do  it.    I  couldn’t \nperform, I couldn’t move it.  I couldn’t, you know, my leg would stiffen up . . \n. it’s like stiff, like I told—like it was hard to bend it.  It was hard to bend my \nknees, and it was feeling like, when I put weight on it, it didn’t feel like—it \ndidn’t feel like I had a knee.  Didn’t feel like I had a leg. \n \n Asked about his stitches, Claimant testified that approximately three weeks after \nhe  received  them, “[t]hey  rotted  out.”  He  later\n3\n  stated  that  this  occurred  in  January \n2022.    The  only  treatment  he  ever  received  on  his  left  knee  was  the  November  30, \n2021,  emergency  room  visit.    While  he  later  attempted  to  see  a  doctor, he  was \nunsuccessful. \n The  foregoing  evidence  shows  that  prior  to  the  day  in  January  2022  that \nClaimant quit his job at Dragon, he had missed  only one day of work due to his injury:  \nDecember  1,  2021.  But  a  claimant  must  demonstrate  that  his  disability  lasted  more \nthan  seven  days.    Ark.  Code  Ann.  §  11-9-501(a)(1)  (Repl.  2012).    Thus,  he  cannot \nestablish his entitlement to temporary total disability benefits unless he can extend this \nperiod by six more days. \n But Claimant has been unable to do this.  Again, his unequivocal testimony was \nthat  the  last  day  he  was  on  the  timber-cutting  job  in  Arkansas,  he  resigned.   The \nArkansas  Court of  Appeals  in Lybyer  v.  Springdale  Sch.  Dist., 2019  Ark.  App.  77, 568 \n \n \n3\nEven  later,  Claimant  acknowledged  that  he  does  not  know  when  the  stitches \ndissolved. \n\nMACKEY – H 206201 \n \n11 \nS.W.3d  805,  held  that “a  voluntary  resignation  is  a  refusal  to  return  to  work  [per  Ark. \nCode Ann. § 11-9-526 (Repl. 2012)]\n4\n, which does not entitle [a claimant] to TTD benefits \nunder the Act.”  Because of this, Claimant has not proven his entitlement to temporary \ntotal disability benefits. \nCONCLUSION \n In accordance with the Findings of Fact and Conclusions of Law set forth above, \nthis claim for additional benefits is hereby denied and dismissed. \n IT IS SO ORDERED. \n \n       ________________________________ \n       Hon. O. Milton Fine II \n       Chief Administrative Law Judge \n \n \n4\nThis provision reads: \n \nIf any injured employee refuses employment suitable to his or her capacity \noffered to or procured for him or her, he or she shall not be entitled to any \ncompensation during the continuance of the refusal, unless in the opinion \nof the Workers’ Compensation Commission, the refusal is justifiable.","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H206201 CHARLES E. MACKEY, EMPLOYEE CLAIMANT DRAGON WOODLAND SAWMILL CORP., EMPLOYER RESPONDENT TRAVELERS PROP. & CASUALTY CORP., CARRIER RESPONDENT OPINION FILED SEPTEMBER 13, 2023 Hearing before Administrative Law Judge O. Milton Fine II on July 28, 2023, i...","fetched_at":"2026-05-19T23:02:50.164Z","links":{"html":"/opinions/alj-H206201-2023-09-13","pdf":"https://labor.arkansas.gov/wp-content/uploads/MACKEY_CHARLES_H206201_20230913.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}