{"id":"alj-H206758-2023-03-06","awcc_number":"H206758","decision_date":"2023-03-06","opinion_type":"alj","claimant_name":"Christopher Berg","employer_name":"Wear Construction Mgmt., Inc","title":"BERG VS. WEAR CONSTRUCTION MGMT., INC. AWCC# H206758 MARCH 6, 2023","outcome":"denied","outcome_keywords":["dismissed:1","denied:2"],"injury_keywords":["knee","ankle","sprain"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads//BERG_CHRISTOPHER_H206758_20230306.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"BERG_CHRISTOPHER_H206758_20230306.pdf","text_length":13679,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO.  H206758 \n \nCHRISTOPHER BERG, Employee                                                                 CLAIMANT \n \nWEAR CONSTRUCTION MGMT., INC.,  Employer                                 RESPONDENT                         \n \nCINCINNATI INSURANCE CO., Carrier                                                   RESPONDENT                        \n \n \n \n OPINION FILED MARCH 6, 2023 \n \nHearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Fort Smith, \nSebastian County, Arkansas. \n \nClaimant represented by JARID M. KINDER, Attorney, Fayetteville, Arkansas. \n \nRespondents represented by KAREN H. MCKINNEY, Attorney, Little Rock, Arkansas. \n \n \n \n STATEMENT OF THE CASE \n  \n On  February  13,  2023,  the  above  captioned  claim  came  on  for  hearing  at Fort \nSmith, Arkansas.  A pre-hearing conference was conducted on November 30, 2022 and \na  pre-hearing  order  was  filed  on  that  same date.   A  copy  of  the  pre-hearing order has \nbeen marked as Commission’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: \n 1.   The Arkansas Workers’ Compensation Commission has jurisdiction of the \nwithin claim. \n 2.      The employee/employer/carrier  relationship  existed among  the  parties at all \nrelevant times. \n 3.      The  claimant  was  earning  sufficient  wages  to  entitle  him  to  the  maximum \n\nBerg – H206758 \n \n2 \n \ncompensation rates. \n At the pre-hearing conference the parties agreed to litigate the following issues: \n1.    Compensability of injury to claimant’s right knee on August 12, 2022. \n2.     Reasonable and necessary medical treatment. \n3.     Temporary total disability benefits from August 12, 2022 through a date yet  \nto be determined.  \n4.      Attorney fee. \nAt  the time of the hearing claimant clarified that he is requesting temporary total  \ndisability benefits from September 12, 2022 through November 28, 2022.  \n The claimant contends he sustained a compensable right knee injury on August \n12,  2022  while  working  for  the  respondent  in  Fort  Smith,  Arkansas.    Despite  objective \nevidence of injury, respondents denied compensability of claimant’s injury.  Claimant \ncontends  he  is  owed  medical  benefits  and  temporary  total  disability  benefits  from \nSeptember 12, 2022 through November 28, 2022.  Due to controversion of these benefits, \nrespondents  are  obligated  to  pay  one-half of the claimant’s attorney’s fee.  Claimant \nreserves all other issues. \nThe respondents contend the claimant did not sustain a compensable injury to his \nright knee on August 12, 2022 or at any other time. \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\nBerg – H206758 \n \n3 \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 November 30,  2022  and  contained  in  a  pre-hearing  order  filed  that  same  date  are \nhereby accepted as fact. \n 2.    Claimant has failed to meet his burden of proving by a preponderance of the \nevidence that he suffered a compensable injury to his right knee on August 12, 2022.   \n \n FACTUAL BACKGROUND \n The  claimant  is  a  49-year-old  man  with  a  tenth  grade  education.    He  has \nundergone apprenticeships in tile setting and as a marble mason.  He considers himself \na tile mason by trade and has performed that type of work since the early 1990s.   \n Claimant  worked  for  respondent  as  a  journeyman  carpenter,  primarily  installing \ngrid ceilings.  Claimant testified that his job required climbing ladders, kneeling, and being \non his feet a majority of the day.  He believes he began working for respondent in August \n2022 and continued working there until November 2022.   \n Claimant testified that on August 12, 2022, he was working for respondent at a job \nat  Alma  High  School.    Respondent  had  on  site  a  storage  trailer  which  claimant  was \nstanding in on August 12, 2022 when: \n  I was stepping out of the trailer and I stepped on a screw. \n  I overextended the ankle, my knee, and it made a funny \n  sound and it got really warm pretty darn quick. \n \n \n Claimant submitted into evidence a photo which he testified was taken the day of \nthe incident.  (Cl. Ex. 2, pg. 1)  Claimant testified that some time later that day he reported \nthe injury to his supervisor, Dahl Dunavant.  Claimant stated that he finished his work day \n\nBerg – H206758 \n \n4 \n \nand that evening his knee was painful and swollen.  Claimant testified that he continued \nto work after the incident because he needed money and could tolerate some pain.  He \nstated that he performed his job at a slower pace and that his knee was uncomfortable, \nsore, and swollen.   \n On  August  28,  2022,  claimant  sought  medical  treatment  at  Baptist  Emergency \nRoom complaining of right knee pain.  Claimant attributed his problems to an incident at \nwork two weeks earlier.  Claimant was diagnosed with a sprain of the medial collateral \nligament and instructed to receive follow-up care with an orthopedic surgeon.   \n On  September  14,  2022,  claimant  was  evaluated  by  Lacey  Kennon,  APRN,  at \nBaptist Orthopedics Clinic.  She took claimant off work until claimant underwent an MRI \nscan  and  an  evaluation  by  Dr.  Tobey,  orthopedic  surgeon.    Claimant’s  MRI  was \nperformed on September 27, 2022, and was read as showing a tear of the posterior horn \nof the medial meniscus. \n On  September  29,  2022,  claimant  was  evaluated  by  Dr.  Tobey  who  noted the \nmedial meniscus tear and recommended surgery.  Dr. Tobey performed surgery to repair \nthe meniscus on October 6, 2022.  After the surgery claimant underwent physical therapy \nand was released to return to work by Dr. Tobey on November 3, 2022.  Claimant testified \nthat he was laid off by respondent and after his release he went to work for Mars Pet Care \non November 28, 2022 operating a forklift and working in a mixing room. \n Claimant has filed this claim contending that he suffered a compensable injury to \nhis  right  knee  on  August  12,  2022.    He  requests  payment  of  medical,  temporary  total \ndisability benefits, and a controverted attorney fee. \n  \n\nBerg – H206758 \n \n5 \n \nADJUDICATION \n Claimant  contends  that  he  suffered  a  compensable  injury  to  his  right  knee  on \nAugust  12,  2022.      His  claim  is  for  a  specific  injury,  identifiable  by  time  and  place  of \noccurrence.   In order to prove a compensable injury as the result of a specific incident \nthat  is  identifiable  by  time  and  place  of  occurrence,  a  claimant  must  establish  by  a \npreponderance  of  the  evidence  (1)  an  injury  arising  out  of  and  in  the  course  of \nemployment; (2) the injury caused internal or external harm to the body which required \nmedical  services  or  resulted  in  disability  or  death;  (3)  medical  evidence  supported  by \nobjective  findings  establishing  an  injury;  and  (4)  the  injury  was  caused  by  a  specific \nincident identifiable by time and place of occurrence.  Odd Jobs and More v. Reid, 2011 \nArk. 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 proving by a \npreponderance of the evidence that he suffered a compensable injury. \n Initially, I do not find claimant’s testimony particularly credible.  Claimant testified \nthat he had not had any issues with his right knee prior to August 12, 2022.   \n  Q Now, prior to 8/12 of  ’22, did  you have any issues \n  with your right knee? \n \nA Yes and no. \n \nQ Okay.  What do you mean by yes and no? \n \nA My legs were - - my ankles were swollen.  I went \nto the doctors. \n \nQ Okay.  So my question for you is did you have any \nissues with your right knee?  You said your ankles. \n \n\nBerg – H206758 \n \n6 \n \nA No. \n \n \n However, the medical records indicate that claimant sought medical treatment for \nhis right leg on June 14, 2022, from Dr. Aaron White,  his primary care physician.  Included \nin those complaints was right knee pain. \n  He is here today for right leg and knee pain and \n  swelling.  He states he lays tile and is frequently \n  on his knees.  His knee swelled up and was \n  tender to touch but has since improved. \n  (Emphasis added.) \n \n \n While claimant testified that he sought medical treatment on that day because he \nwas  concerned  that  he  might  have  diabetes,  the  record  from  Dr.  White  clearly  reflects \nthat  claimant was complaining of right knee pain and Dr. White’s diagnosis included:  \n“Acute pain of right knee.”  Thus, I do not find claimant’s testimony that he did not have \nright knee pain prior to August 12, 2022 to be credible.   \n Claimant  also  testified  that  he  reported  the  injury  on  the  day  it  occurred  to  his \nsupervisor, Dahl Dunavant.  However, Dunavant testified that while claimant did mention \nthat he was suffering from knee pain on some unknown date, the claimant never indicated \nthat he had injured himself or that he needed medical attention.  Dunavant stated that if \nclaimant  had  indicated  that  he  had  injured  himself  at  work  he  would  have  contacted \nrespondent’s office manager, Lee  Ann Vicary, and asked where he should take claimant \nfor treatment.   \n Claimant also testified at the hearing that this conversation regarding the reporting \nof  his  accident  occurred  on  August  12,  2022,  the  date  of  the  injury.    However,  at his \ndeposition, claimant testified that the conversation occurred approximately one week after \n\nBerg – H206758 \n \n7 \n \nthe accident. \n \n  Q You said you reported it to your supervisor \n  because that is company policy; correct? \n \n  A The day it happened, yes. \n \n  Q And then I asked you again, “Did you tell \n  anybody you needed treatment for an injury?” \n  And what was your response?  “Did you tell \n  anybody you needed treatment for an injury? \n  What was your response here starting on Line \n  21? \n \n  A What was my answer? \n \n  Q Yes, right there “A”. \n \n  A “I went to Dahl and told him that if it gets to \n  a point to where I just” can’t bear it - - “you now, I \n  just – I need to go to the hospital.  I am going to.” \n  That is  correct. \n \n  Q All right.  I asked you, “When did you do that?” \n  And what was your response? \n \n  A That conversation was the same day - - \n \n  Q I asked you, “When did you do that?”  And  \n  what was your response? \n \n  A It was Friday, the day of the incident. \n \n  Q I am going to read here.  It says, “I think it \n  was from Friday.  It was like a week.  I think about \n  a week, maybe.” \n \n   So in your deposition, you tell me you talked \n  to Dahl a week after this; correct? \n \n  A No, ma’am. \n \n  Q That is not what your said in your deposition? \n \n\nBerg – H206758 \n \n8 \n \n  A My week was a week or so when I went to the \n  emergency room, not when I reported the incident. \n \n  Q That wasn’t my question; was it? \n \n  A I am confused. \n \n \n Thus, claimant has given conflicting testimony regarding the date he mentioned  \n \nany complaints to Dunavant.   \n \n Finally,  while  claimant  contends  that  he  suffered  this  compensable  injury  to  his \nright knee on August 12, 2022, I note that he did not seek any medical treatment for his \ncondition until August 28, 2022, more than two weeks later. \n In  summary,  claimant  has  the  burden  of  proving  by  a  preponderance  of  the \nevidence that he suffered a compensable injury to his right knee on August 12, 2022.  At \nthe  hearing,  claimant  denied  having  any  prior  right  knee  pain.    However,  the  medical \nrecords indicate that claimant had sought medical treatment for right knee pain from his \nprimary  care  physician  on  June  14,  2022.    In  addition,  while  claimant  testified  that  he \nreported  the  injury  to  his  supervisor,  Dahl  Dunavant,  Dunavant  testified  that  while \nclaimant  did  indicate  that  his  knee  was  hurting,  claimant  never  indicated  that  he  had \ninjured himself at work or that he needed medical attention.  Furthermore, with respect to \nthis conversation, claimant testified at the hearing that it occurred on the date of the injury, \nAugust 12; however, at his deposition, claimant testified that this conversation occurred \napproximately a week later.   Finally, claimant did not seek any medical treatment for any \ncomplaints of right knee pain until August 28, 2022, more than two weeks later.  Given \nthis  evidence,  I  simply  find that  claimant  has  failed  to meet his  burden of proving  by a \npreponderance of the evidence that he suffered a compensable injury to his right knee on \n\nBerg – H206758 \n \n9 \n \nAugust 12, 2022.   \nORDER \n Claimant  has  failed  to  meet  his  burden  of  proving  by  a  preponderance of  the \nevidence  that  he  suffered  a  compensable  injury  to  his  right  knee  on  August  12,  2022.  \nTherefore, his claim for compensation benefits is hereby denied and dismissed. \n Respondents are responsible for the court reporter’s charges for preparation of the \nhearing transcript in the amount of $708.45. \n IT IS SO ORDERED. \n \n       ________________________________ \n        GREGORY K. STEWART \n        ADMINISTRATIVE LAW JUDGE","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H206758 CHRISTOPHER BERG, Employee CLAIMANT WEAR CONSTRUCTION MGMT., INC., Employer RESPONDENT CINCINNATI INSURANCE CO., Carrier RESPONDENT OPINION FILED MARCH 6, 2023 Hearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Fort Smith, Sebastian Count...","fetched_at":"2026-05-19T23:09:08.760Z","links":{"html":"/opinions/alj-H206758-2023-03-06","pdf":"https://labor.arkansas.gov/wp-content/uploads//BERG_CHRISTOPHER_H206758_20230306.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}