{"id":"alj-H206243-2024-07-24","awcc_number":"H206243","decision_date":"2024-07-24","opinion_type":"alj","claimant_name":"Mickey Mcnair","employer_name":"Kimball & Thompson Produce, Inc","title":"MCNAIR VS. KIMBALL & THOMPSON PRODUCE, INC. AWCC# H206243 & H208493 & H208492 & H206220 July 24, 2024","outcome":"denied","outcome_keywords":["dismissed:1","denied:2"],"injury_keywords":["shoulder","back","rotator cuff","strain"],"pdf_url":"https://www.labor.arkansas.gov/wp-content/uploads/MCNAIR_MICKEY_H206243H208493H208492H206220_20240724.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"MCNAIR_MICKEY_H206243H208493H208492H206220_20240724.pdf","text_length":29124,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n    \n \n          CLAIM NO. H206243 \n \nMICKEY T. MCNAIR, Employee        CLAIMANT \n \nCENTURY LEASING, Uninsured Employer RESPONDENT #1 \n \nKIMBALL & THOMPSON PRODUCE, INC., Employer     RESPONDENT #2 \n \nAMTRUST NORTH AMERICA, Carrier                                                 RESPONDENT #2 \n \n   \n                                                   CLAIM NO. H208493 \n \nMICKEY T. MCNAIR, Employee                                                                          CLAIMANT \n \nKIMBALL & THOMPSON PRODUCE, INC., Employer                                  RESPONDENT \n \nAMTRUST NO. AMERICA, Carrier                                                             RESPONDENT \n \n     \n                                        CLAIM NOS. H208492/H206220 \n \nMICKEY T. MCNAIR, Employee                                                                        CLAIMANT \n \nKIMBALL & THOMPSON PRODUCE, INC., Employer                                 RESPONDENT \n \nSUMMIT CONSULTING, Carrier                                                                RESPONDENT \n \n \n \n OPINION FILED JULY 24, 2024 \n \nHearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Springdale, \nWashington County, Arkansas. \n \nClaimant represented by DAVID L. SCHNEIDER, Attorney, Fort Smith, Arkansas. \n \nRespondent, Century Leasing, not represented by counsel and not appearing at hearing. \n \nRespondents, Kimball & Thompson Produce and AmTrust North America, represented \nby WILLIAM C. FRYE, Attorney, No. Little Rock, Arkansas. \n \n\nMcNair – H206243/H208492/H208493/H206220 \n \n2 \n \nRespondents,  Kimball  &  Thompson  Produce  and    Summit  Consulting,  represented  by \nGUY ALTON WADE, Attorney, Little Rock, Arkansas. \n \n \n STATEMENT OF THE CASE \n  \n On June 26, 2024, the above captioned claim came on for hearing at Springdale, \nArkansas.  A pre-hearing conference was conducted on April 3, 2024 and a pre-hearing \norder was filed on that same date.  A copy of the pre-hearing order has been marked as \nCommission’s Exhibit #1 and made a part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations and \nissues: \nH206243 (October 8, 2020 DOI) \nStipulations: \nNone \nIssues: \n1. Jurisdiction. \n2. Whether claimant was an employee of Century Leasing (hereinafter \n“Century” on October 8, 2020. \n \n3. Whether claimant was a dual employee of Century and Kimball & \nThompson Produce (hereinafter “K&T” on October 8, 2020. \n \n4. Whether claimant suffered a compensable injury to his right shoulder  \nand right hand on October 8, 2020. \n \n5. Claimant’s entitlement to medical benefits. \n \n6. Claimant’s entitlement to temporary total disability benefits. \n \n7. Compensation rate. \n \n8. Attorney’s fee. \n \n\nMcNair – H206243/H208492/H208493/H206220 \n \n3 \n \n \nH208493 (January 8, 2021 DOI) \n \n Stipulations: \n \n1. The Arkansas Workers’ Compensation Commission has jurisdiction of this  \nclaim. \n \n1. The employee/employer/carrier relationship existed between the claimant,  \nK&T, and Technology Insurance on January 8, 2021.    \n \n Issues: \n \n1. Compensability of injury to claimant’s right shoulder on January 8, 2021 \n \n2. Related medical. \n \n3. Claimant’s entitlement to temporary total disability benefits. \n \n4. Attorney’s fee. \n \nH208492 (February 5, 2022 DOI) \n \nStipulations: \n \n1. The Arkansas Workers’ Compensation Commission has jurisdiction of this  \nclaim. \n \n2. The employee/employer/carrier relationship existed between the claimant, \nK&T and Bridgefield Insurance on March 5, 2022. \n \n Issues: \n \n1. Compensability of injury to claimant’s right shoulder on February 5, 2022. \n \n2. Related medical. \n \n3. Claimant’s entitlement to temporary total disability benefits. \n \n4. Attorney’s fee. \n \nH206220 (August 23, 2022) \n \nStipulations: \n \n\nMcNair – H206243/H208492/H208493/H206220 \n \n4 \n \n1. The Arkansas Workers’ Compensation Commission has jurisdiction of this  \nclaim. \n \n2. The employee/employer/carrier relationship existed between the claimant, \nK&T, and Bridgefield Insurance on August 23, 2022. \n \n  \n Issues: \n \n1. Compensability of injury to claimant’s right shoulder on August 3, 2022. \n \n2. Related medical. \n \n3. Claimant’s entitlement to temporary total disability benefits. \n \n4. Attorney’s fee. \n \nClaimant’s contentions are set forth in his pre-hearing questionnaire attached  \nto the pre-hearing order marked as Commission Exhibit #1 as Exhibit 1. \n Century Leasing did not set forth any contentions. \n Respondent,  Kimball  &  Thompson  and  Technology  Insurance  Company’s  \ncontentions are set forth in its pre-hearing questionnaire attached to the pre-hearing order \nmarked as Commission Exhibit #1 as Exhibit 2. \n Respondent,  Kimball  &  Thompson  and  Bridgefield  Insurance  Company’s \ncontentions are set forth in its pre-hearing questionnaire attached to the pre-hearing order \nmarked as Commission Exhibit #1 as Exhibit 3. \n From a review of the record as a whole, to include medical reports, documents, \nand other matters properly before the Commission, and having had an opportunity to hear \nthe testimony of the witnesses and to observe their demeanor, the following findings of \nfact and conclusions of law are made in accordance with A.C.A. §11-9-704: \n \n\nMcNair – H206243/H208492/H208493/H206220 \n \n5 \n \n  FINDINGS OF FACT & CONCLUSIONS OF LAW \n \n 1.   The stipulations agreed to by the parties at a pre-hearing conference conducted \non April  3,  2024 and  contained  in  a  pre-hearing  order  filed  that  same  date  are  hereby \naccepted as fact. \n 2.    Claimant  has  failed  to  prove  by  a  preponderance  of  the  evidence  that  he \nsuffered a compensable injury to his right shoulder or right hand on October 8, 2020. \n 3.      Claimant  has  failed  to  prove  by  a preponderance  of  the  evidence  that  he \nsuffered a compensable injury to his right shoulder on January 8, 2021. \n 4.        Claimant  has  failed  to  prove  by  a  preponderance  of  the  evidence  that  he \nsuffered a compensable injury to his right shoulder on February 5, 2022. \n 5.        Claimant  has  failed  to  prove  by  a  preponderance  of  the  evidence  that  he \nsuffered a compensable injury to his right shoulder on August 23, 2022. \n \n FACTUAL BACKGROUND \n In July 2020, claimant responded to a job listing on Craig’s List.  He testified that \nhe went to Respondent 2’s office in Lowell where he was given an application and various \nforms to complete.  The employment application had Respondent 1’s name on it, but the \nother forms, mostly dealing with training and policy of Respondent 2, had Respondent 2’s \nname on them.   These documents were submitted into evidence as Claimant’s Exhibit \n#2. \n Claimant completed the forms on Respondent 2’s premises and was sent to a clinic \nfor a drug test.  The drug screen was negative and claimant was hired that same day.  \nClaimant  testified  that  he  never  visited  the  office  of  Respondent  1  and  never  had  any \n\nMcNair – H206243/H208492/H208493/H206220 \n \n6 \n \ncontact with Respondent 1.   Claimant testified that he was paid by Respondent 1 until \nJanuary 2021 when he began receiving payment from Respondent 2.  Claimant testified \nthat although he knew Respondent 2 had a payroll service, he was not aware that he was \nsupposed to be an employee of Respondent 1 until December 2020.  He testified that he \nreceived  his  job  instructions  from  Kenny  Blalock,  who  was  the  route  manager  for \nRespondent 2.   \n Testifying at the hearing was Gina Brown, Chief Financial Officer for Respondent \n2.  She testified that Respondent 1 leases employees to Respondent 2 and that some of \nthose employees eventually become employees of Respondent 2.  She testified that in \nJanuary  2021  claimant  went  from  being  an  employee  of  Respondent  1  to  being  an \nemployee of Respondent 2. \n Claimant contends that at the time of his first injury on October 8, 2020, he was a \ndual  employee  of  Respondent  1  and  Respondent  2.    At  that  time  Respondent  1  was \nuninsured and Respondent 2 was provided workers’ compensation insurance by AmTrust \n(Carrier #1).  At the time of the other alleged injuries claimant was admittedly an employee \nof Respondent 2.  At the time of the injury on January 8, 2021, Respondent 2’s coverage \nwas still provided by AmTrust.  At the time of the third and fourth injuries on February 5, \n2022 and August 23, 2022, Respondent 2’s coverage was provided by Summit Consulting \n(Carrier #2).   \n Claimant’s job duties were to drive a box truck, delivering produce to restaurants, \nschools, hospitals, nursing homes, Native American facilities, et cetera.  At many of these \nlocations,  claimant  had  to  get  the appropriate  produce  and  dolly  it in  to the  facility.   At \nsome locations such as the Cherokee Nation, the produce was unloaded by employees \n\nMcNair – H206243/H208492/H208493/H206220 \n \n7 \n \nof the facility. \n Claimant   has   filed   this   claim   contending   that   he   suffered   four   separate \ncompensable injuries to his right shoulder while performing his job.  He has requested \npayment  of  medical  benefits  relating  to  his  compensable  injuries  as  well  as  temporary \ntotal disability benefits and a controverted attorney fee. \n \nADJUDICATION \n Claimant contends that he suffered compensable injuries to his right shoulder and \nhand  on  October  8,  2020; his  right  shoulder  on  January  8,  2021; his  right  shoulder  on \nFebruary 5, 2022; and his right shoulder on August 23, 2022.  All of these claims are for \nspecific  injuries  identifiable  by  time  and  place  of  occurrence.  In  order  to  prove  a \ncompensable injury as the result of a specific incident that is identifiable by time and place \nof occurrence, a claimant must establish by a preponderance of the evidence (1) an injury \narising out of and in the course of employment; (2) the injury caused internal or external \nharm to the body which required medical services or resulted in disability or death; (3) \nmedical evidence supported by objective findings establishing an injury; and (4) the injury \nwas caused by a specific incident identifiable by time and place of occurrence.  Odd Jobs \nand More v. Reid, 2011 Ark. App. 450, 384 S.W. 3d 630. \n After reviewing the evidence in this case impartially, without giving the benefit of \nthe doubt to either party, I find that claimant has failed to meet his burden of proof for all \nfour injuries. \n Claimant has alleged that he suffered four separate compensable injuries.  Each \nof these injuries involves his right shoulder (the first injury also involves his right hand).  \n\nMcNair – H206243/H208492/H208493/H206220 \n \n8 \n \nSome  of  the  evidence  presented  is  relevant  to  more  than  one  particular  injury.    For \ninstance, prior to discussing the merits of each particular claim, I note the following with \nrespect to claimant’s credibility.  Claimant acknowledged that from 2007 through 2015 he \nwas  incarcerated  for  endangering  the  welfare  of  a  minor.    Claimant  was  subsequently \ncharged with two failures to register as a sex offender in Benton County that resulted in \nadditional terms for both charges.  Claimant also acknowledged that he was convicted of \nembezzlement in Oklahoma.  Finally, claimant was terminated by Respondent 2 in August \n2022 for theft of property in connection with the unauthorized use of Respondent 2’s fuel \ncard.    Gina  Brown  testified  that  while  going  through  credit  card logs  she  discovered \ncharges on two Sundays that should not have been made on those days.  She testified \nthat each employee has their own PIN number and that claimant’s PIN number was used \nin those purchases.  She stated that this resulted in criminal charges being filed against \nclaimant. \n Obviously,  these  facts  do  not  exclude  claimant  from  prevailing  and  proving  a \ncompensable  injury  while  performing  his  job  duties;  however,  they  are  relevant  when \nconsidering his credibility as a witness. \n With respect to claimant’s claims of injuries to his right shoulder, I note that there \nare  credibility  issues  as  well.    Claimant  testified  on  direct  examination  that  prior  to  his \ninjury in October 2020 he had not had any problems with his right shoulder.  However, \nwhen claimant sought medical treatment on January 15, 2021 from the emergency room, \nthe following history is noted: \n  Mr. McNair is a 41-year-old male that presents to the \n  emergency department complaining of some right sided \n  anterior shoulder pain that has been present for a year \n\nMcNair – H206243/H208492/H208493/H206220 \n \n9 \n \n  but has been worse over the last week after he was hit \n  in the back of the shoulder by a door that was swung  \n  shut and hit him.  He states that about a year ago he \n  had an MRI of the shoulder that showed a minor tear \n  of the rotator cuff but he did not follow-up.  (Emphasis \n  added.) \n \n \n In response to this history, claimant testified: \n \n  Q Now, the medical records indicate that you had told \n  the doctor you had an MRI of your shoulder a year before. \n  Do you remember anything about that? \n \nA No, not a year. \n \nQ Had you ever had any problems with your shoulder \nbefore? \n \nA No.  Nothing out of the normal. \n \n Further, Dr. Dougherty in his report dated September 20, 2021, notes that claimant \nhas had right shoulder issues for more than five years and that he had failed conservative \ncare. \n  Patient reports he’s been having pain in his right shoulder. \n  He was here last year for the same reason (2020) for an \n  injection in his right shoulder but refused to get it and now \n  he is regretting it. \n \n      *** \n  His x-rays of the right shoulder today show severe AC joint \n  arthritis.  His exam is also consistent with impingement \n  syndrome.  He has failed conservative care and over 5  \n  years of symptoms including a physician based home \n  exercise program.  (Emphasis added.) \n \n \n In  response  to  this  history,  claimant  testified  that  he  does  not  know  where  Dr. \nDougherty got this history and that it is incorrect. \n\nMcNair – H206243/H208492/H208493/H206220 \n \n10 \n \n Thus,  claimant  contends  that  two  medical  reports  from  two  different  physicians \nnoting a history of prior right shoulder complaints is incorrect.  I do not find this testimony \ncredible.  Dr. Dougherty’s statement that claimant had a five-year history of right shoulder \ncomplaints and failed conservative treatment is part of the basis for his decision to perform \nsurgery on the claimant’s right shoulder. \n In short, based on the foregoing, I find claimant’s credibility to be suspect and \nsignificant in all four of his right shoulder claims. \n Turning to the claims in particular, the first claim is for an injury to claimant’s right \nshoulder  and  right  hand  on  October  8,  2020.    Claimant  testified  that  while  making  a \ndelivery to a restaurant that day he reached out to grasp a handle on the truck and the \nhandle came off, causing him to slip and land on the top of his two-wheel dolly.  Claimant \ntestified that after this incident he called his supervisor, Blalock, reported the injury, and \nsent him a picture of his hand. \n Claimant did not seek any medical treatment for this injury.  The first medical report \nafter  October  8,  2020  is  from  an  emergency  room  visit  on  January  15,  2021,  for  the \nalleged January 8, 2021 injury at which time claimant gave a history of right shoulder pain \npresent for one year.  Claimant not only indicated that he had shoulder pain for a year, \nbut  also  gave  a  history  of  having  undergone  an  MRI  of  the  shoulder  which  showed  a \nminor tear of the rotator cuff.  Claimant denies giving this history.  Notably, the emergency \nroom report makes no mention of an accident or injury on October 8, 2020. \n In  addition,  with  respect  to  the  October  8,  2020  claim,  I  note  that  there  is  no \nobjective evidence of injury to claimant’s right hand or right shoulder.  Therefore, I find \nthat  claimant  has  failed  to  offer  medical  evidence  supported  by  objective  findings \n\nMcNair – H206243/H208492/H208493/H206220 \n \n11 \n \nestablishing a compensable injury to his right shoulder and right hand on October 8, 2020.   \n Based on claimant’s credibility, the lack of medical treatment until after another \nalleged  injury,  the  history  of  prior  right  shoulder  complaints  and  the  lack  of  objective \nfindings, I find that claimant has failed to prove by a preponderance of the evidence that \nhe suffered a compensable injury, or an aggravation of a pre-existing condition to his right \nshoulder and right hand on October 8, 2020. \n Having  found  that  claimant  failed  to  prove  a  compensable  injury  on  October  8, \n2020,  the  issue  of  whether  claimant  was  a  dual  employee  of Respondent  1  and \nRespondent 2 on that date is moot. \n Claimant also contends that he suffered a compensable injury to his right shoulder \non January 8, 2021.  Claimant testified that on that date he and one of Respondent 2’s \nmaintenance men were standing at the back of his truck looking at damage to the floor of \nthe truck.  The wind caught one of the doors which was loose due to a broken hook and \nstruck him in the back and shoulder.  Claimant testified that he told the maintenance man \nthat he was going to leave and go get checked out. \n  Q Who did you notify besides this maintenance gentleman \n  that there was there at that time?  Who else did you notify? \n \n  A He was the only one that - - on that one, he was there \n  and I told him I was leaving to go get checked out. \n \n \n However,  there  is  no  medical  report  indicating  that  claimant  sought  medical \ntreatment on that day.  There is the aforementioned medical report from the emergency \nroom dated one week later on January 15, 2021.  That report does indicate that claimant \nmentioned  having  been  struck  in  the  back  of  the  shoulder  a  week  ago  by  a  door.    As \n\nMcNair – H206243/H208492/H208493/H206220 \n \n12 \n \npreviously  discussed,  the  report  also  indicates  that  claimant  gave  a  history  of  right \nshoulder pain a year ago that resulted in an MRI scan showing a minor tear in the rotator \ncuff.  More importantly, the report contains no objective findings of injury.  The report does \ncontain notations of complaints of pain and decreased range of motion.  It also notes that \nno  effusion,  spasm,  laceration,  or  swelling  are  present.    At  that  time  claimant  was \ndiagnosed with chronic right shoulder pain. \n Based on claimant’s credibility, the history of prior shoulder complaints and the \nlack of objective findings, I find that claimant has failed to meet his burden of proving a \ncompensable injury or an aggravation of a pre-existing condition to his right shoulder on \nJanuary 8, 2021. \n Claimant does not allege another compensable injury until February 5, 2022, more \nthan a year after January 8, 2021; however, he did seek medical treatment for his right \nshoulder from Dr. DeClerk on August 17, 2021.  The report indicates that claimant’s right \nshoulder has been bothering him but does not mention any injuries.  The report states \nthat claimant had seen an orthopedic doctor and was supposed to get an injection but did \nnot.  The report also states that claimant has seen Dr. Dougherty and that therapy in the \npast has provided little relief.  None of these other medical reports are in the record.  Dr. \nDeClerk diagnosed claimant with pain in his right shoulder joint; prescribed medications; \nand referred claimant back to Dr. Dougherty. \n Claimant was seen by Dr. Dougherty on September 20, 2021.  His report indicates \nthat claimant’s problems included tendinitis of the right rotator cuff with an onset date of \nJuly  15,  2020.  Notably, this is before claimant’s first alleged injury date and again \ncontradicts claimant’s testimony that he had no right shoulder problems prior to October \n\nMcNair – H206243/H208492/H208493/H206220 \n \n13 \n \n2020.  The problems list also indicates that claimant has pain in the right shoulder joint \nwith  an  onset  date  of  August  17,  2021.    (Not  a  claimed  injury  date.)      His  report  also \nindicates  that  there  was  no  work-related  injury.    The  report  then  goes  on  to  state  that \nclaimant had shoulder issues for five years and that he had failed conservative care.  Dr. \nDougherty  went  on  to  recommend  a  right  shoulder  arthroscopy  with  subacromial \ndecompression and distal clavicle resection.   \n Dr.  Dougherty  performed  this  surgery  on  September  28,  2021,  with  a  post-op \ndiagnosis  to  include:    impingement  syndrome  with  acromioclavicular  arthritis;  intact \nrotator  cuff;  pristine  articular  surfaces;  and  intact  biceps.    According  to  claimant’s \ntestimony he has not seen Dr. Dougherty since September 2021.   \n Claimant claims a third injury to his right shoulder on February 5, 2022.  Claimant \ntestified that on that date he was walking when he slipped on ice and fell, injuring his right \nshoulder.  In support of this claim, claimant offered a video of the incident.  The video is \napproximately three seconds long and does show the claimant as he started to slip and/or \nfall.  Claimant was seen at the emergency room later that day complaining of pain in the \nright AC joint.  Given the video evidence, there is no question that this incident occurred \nas  described  by  claimant.    However,  in  order  to  prove  a  compensable  injury,  claimant \nmust also medical evidence supported by objective findings establishing an injury.  I find \nthat he has failed to meet that burden of proof.   \n X-rays of the claimant’s right shoulder were negative for acute bony pathology.  In \naddition,  the  physical  exam  revealed  a  full  range  of  motion,  both  passive  and  active.  \nClaimant  was  given  Tylenol and  Motrin  and diagnosed  with  a  strain  of  the muscle  and \ntendons of the rotator cuff of the right shoulder.   \n\nMcNair – H206243/H208492/H208493/H206220 \n \n14 \n \n Absent   objective   findings,   claimant   cannot   meet   his   burden   of   proving   a \ncompensable   injury.      Therefore,   I   find   that   claimant   has   failed   to   prove   by   a \npreponderance of the evidence that he suffered a compensable injury or an aggravation \nof a pre-existing condition on February 5, 2022. \n The final claim for compensability is for August 23, 2022.  Claimant contends that \non that date he injured his right shoulder while lifting a box of apples.  The circumstances \nsurrounding this injury are suspect.  Claimant testified as follows: \n  I came in after my school, after I got out of class, to \n  check my route load.  It was kind of a habit because \n  we didn’t always have the best people stacking the \n  pallets and loads and wrapping them like they should. \n  And the load I was on was a really picky one.  If \n  something fell off, they would reject loads, so I would \n  go in after class and check it and make sure it was \n  right. \n \n  And I had seen a box of apples that was on the pallet, \n  you know, if someone moved it or something it was \n  liable to fall.  So I picked it up to put it back on the \n  pallet further up and when I kind of tossed it up there, \n  I felt my shoulder kind of roll.  As it rolled, it kind of \n  popped and started hurting. \n \n \n Claimant acknowledged that he was not scheduled to work on the night of August \n23, but simply decided to show up, clock in, work 15 to 20 minutes and then leave. \n  Q Now, you weren’t scheduled to work on the evening \n  of August 23; were you? \n \n  A I was on no schedules. \n \n  Q Well, would it surprise you to learn if Ms. Brown and  \n  Mr. Blalock testify that you have to be on the schedule to  \n  work and clock in? \n \n  A This is incorrect. \n\nMcNair – H206243/H208492/H208493/H206220 \n \n15 \n \n \n  Q They are just lying? \n \n  A I hadn’t been on the schedule in a year and I made \n  many trips.  I would be called in by Amanda Blalock and \n  Kenny Blalock and Luke. \n \n  Q So you could just show up, clock in, and do anything \n  anytime and anywhere? \n \n  A Yes, sir. \n \n      *** \n  Q So at 9:30, approximately, on August 23\nrd\n of 2022, \n  it was completely acceptable for you just to appear out of \n  nowhere and try to go to work; if that what you are telling \n  us? \n \n  A Yes, sir. \n \n  Q Okay.  And that you did it routinely; is that what you  \n  are telling us? \n \n  A Yes, sir. \n \n \n Gina Brown testified that claimant was not scheduled to work on the night of August \n23, but showed up and clocked in.  She testified that employees are not supposed to be \nat Respondent 2 if they are not on the schedule and that employees can’t just show up \nand work.  In response to Brown’s testimony, claimant testified that he had shown up on \nother occasions but admitted that most of the time he did not clock in. \n  Q Had you been paid for those? [Nights he had gone to \n  the warehouse while not on the schedule.] \n \n  A No, sir.  Sometimes I didn’t - - most of the time I didn’t \n  clock in, I would just come by, because it made my life easier \n  if the pallets weren’t leaning and falling over. \n \n Thus, claimant was not scheduled to work on the night of August 23, but shows \n\nMcNair – H206243/H208492/H208493/H206220 \n \n16 \n \nup,  clocks  in,  and  plans  to  work  only  15  to  20  minutes  before  leaving.    Other  than \nclaimant’s testimony, there is no evidence that he had ever done this before.  In fact, even \nclaimant admitted that most of the time when he allegedly did this in the past he did not \nclock in.  It seems more than coincidental that claimant would appear at work on the night \nof August 23, clock into work 15 to 20 minutes, and just happen to have an injury during \nthat time. \n As between the testimony of Brown and claimant, I found Brown’s testimony more \ncredible.  Her testimony is that claimant was not supposed to be present unless he was \non the schedule.  I do not find credible claimant’s testimony that he was not on the \nschedule and that he would routinely show up and work when he wanted.   \n Having  accepted  Brown’s  testimony  as  credible,  I  find  that  claimant  was  not \nperforming  employment  services  at  the  time  of  his  alleged  injury.    An  employee  is \nperforming employment services when he is doing something that is generally required \nby  his  employer.   Texarkana  School  District  v.  Conner,  373  Ark.  372,  284  S.W.  3d  57 \n(2008).  The test is whether the injury occurred within the time and space boundaries of \nthe employment, when the employee was carrying out the employer’s interest, directly or \nindirectly.  Javan v. Econ. Inn & Suites, 370 Ark. 414, 260 S.W. 3d 281 (2007).   \n I do not find that claimant was doing something that was required by his employer \nor that he was within the time and space boundaries of his employment at the time he \ncontends  his  injury  occurred.    According  to  Brown’s  testimony,  claimant  was  not \nscheduled to work on the right of August 23 and was not to be present unless he was on \nthe schedule.  Therefore, claimant was not performing an activity that was required by his \nemployer during the time and space boundaries of his employment.  The fact claimant \n\nMcNair – H206243/H208492/H208493/H206220 \n \n17 \n \nwas  picking  up  a  box  of  apples  is  not  controlling  given  the  evidence  indicating  that \nclaimant was not supposed to be present unless he was scheduled to work.  An employee \ncannot simply create a situation of performing employment services by showing up  at \nwork and clocking in if they are not supposed to be present and working. \n Even if it were determined that claimant was performing employment services on \nAugust 23, claimant still has the burden of proving by a preponderance of the evidence \nthat  he  suffered  a  compensable  injury.    Here, a finding  that  the  injury  occurred  is \ndependent  on  claimant’s  credibility.    For  reasons  previously  discussed,  I  find  that \nclaimant’s testimony is not credible. \n Accordingly,  I  find  that  claimant  has  failed  to  prove  by  a  preponderance  of  the \nevidence that he suffered a compensable injury or aggravation of a pre-existing condition \nto his right shoulder on August 23, 2022. \n \n      ORDER \n Claimant has failed to prove by a preponderance of the evidence that he suffered \ncompensable injuries to his right shoulder and right hand on October 8, 2020; his right \nshoulder on January 8, 2021; his right shoulder on February 5, 2022; or his right shoulder \non August 23, 2022.  Therefore, his claim for compensation benefits is hereby denied and \ndismissed. \n Respondents are liable for payment of the court reporter’s charges for preparation \nof the hearing transcript in the amount of $1,065.45. \n \n \n\nMcNair – H206243/H208492/H208493/H206220 \n \n18 \n \n IT IS SO ORDERED. \n \n      _____________________________________ \n       GREGORY K. STEWART \n       ADMINISTRATIVE LAW JUDGE","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H206243 MICKEY T. MCNAIR, Employee CLAIMANT CENTURY LEASING, Uninsured Employer RESPONDENT #1 KIMBALL & THOMPSON PRODUCE, INC., Employer RESPONDENT #2 AMTRUST NORTH AMERICA, Carrier RESPONDENT #2 CLAIM NO. H208493 MICKEY T. MCNAIR, Employee CLAIMANT KIMBALL...","fetched_at":"2026-05-19T22:51:56.121Z","links":{"html":"/opinions/alj-H206243-2024-07-24","pdf":"https://www.labor.arkansas.gov/wp-content/uploads/MCNAIR_MICKEY_H206243H208493H208492H206220_20240724.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}