{"id":"alj-H207790-2024-03-26","awcc_number":"H207790","decision_date":"2024-03-26","opinion_type":"alj","claimant_name":"John Omalley","employer_name":"Baywood Colony Horizontal Property","title":"O’MALLEY VS. BAYWOOD COLONY HORIZONTAL PROPERTY AWCC# H207790 MARCH 26, 2024","outcome":"granted","outcome_keywords":["granted:2"],"injury_keywords":["shoulder","rotator cuff","back","fracture"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/OMALLEY_JOHN_H207790_20240326.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"OMALLEY_JOHN_H207790_20240326.pdf","text_length":35740,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION  \n \n CLAIM NO. H207790  \n  \n \nJOHN E. O’MALLEY,   \nEMPLOYEE                                                                                                                    CLAIMANT   \n \n                                                                                                           \nBAYWOOD COLONY HORIZONTAL PROPERTY,  \nEMPLOYER                                                                                                              RESPONDENT \n \nFIRSTCOMP INSURANCE COMPANY, \nINSURANCE CARRIER                                                                                          RESPONDENT                                     \n \nMARKEL SERVICE, INC.,  \nTHIRD PARTY ADMINISTRATOR                                                                       RESPONDENT                                                                                            \n  \n \nOPINION FILED MARCH 26, 2024    \n  \n \nA hearing was held before Administrative Law Judge Chandra L. Black, Garland County, Hot \nSpring, Arkansas.  \n  \nClaimant represented by the Honorable Laura Beth York, Attorney at Law, Little Rock, Arkansas.     \n  \nRespondents represented by the Honorable Randy P. Murphy, Attorney at Law, Little Rock, \nArkansas.  \n   \n                                                 STATEMENT OF THE CASE  \n  \nA hearing was held in  the above-styled claim  on October 27, 2023, in Hot Springs, \nArkansas.  A prehearing telephone conference was held in this matter on September 13, 2023.  A \nprehearing order was entered on that same day.  This prehearing order set forth the stipulations \nproposed by the parties, their contentions, and the issues to be litigated.  \n                  STIPULATIONS \nThe parties submitted the following stipulations, either pursuant to the prehearing order, or \nat the hearing.  I hereby accepted the following proposed stipulations as fact:  \n\nO’MALLEY – H207790  \n  \n  \n2  \n  \n1. The Arkansas Workers’ Compensation Commission has jurisdiction of this claim.  \n \n2. That the employee-employer-carrier relationship existed at all relevant times including \non or about October 1, 2022, when the Claimant allegedly sustained a compensable \ninjury to  his right  shoulder in  the  course  and  scope  of his  employment  with  the \nrespondent-employer/Baywood Colony Horizontal Property. \n \n3. The Claimant’s average weekly wage on October 1, 2022, was $1,019.23.  His weekly \nrate for temporary total disability (TTD) benefits is $679.00; and his rate for permanent \npartial disability (PPD) compensation is $509.00. \n \n4. The Respondents have controverted this claim in its entirety. \n \n5. All issues not litigated herein are reserved under the Arkansas Workers’ Compensation \nAct.  \n     \nIssues \nBy agreement of the parties, the issues to be litigated at the hearing were as follows:  \n1. Whether the Claimant sustained a compensable right shoulder injury in the course and \nscope of his employment with the respondent-employer on October 1, 2022. \n \n2. Whether the Claimant failed to give timely notice of his shoulder injury to his employer \nuntil October 13, 2022. \n \n3. Whether the Claimant is entitled to both current and future reasonable and necessary \nmedical benefits for his shoulder condition pursuant to Ark. Code Ann. §11-9-508 (a). \n \n4. Whether the Claimant is entitled to temporary total disability benefits for his right   \nshoulder condition in the event surgery is awarded for his injury. \n \n5. Whether the Claimant’s attorney is entitled to a controverted attorney’s fee. \nContentions \n \n  The respective contentions of the parties are as follows:       \n  \nClaimant:  \n  \n  The Claimant contends that on October 1, 2022, he fell while in the scope and course of \nemployment, injuring his right shoulder.  He was sore but tried to ignore it, and he continued to \n\nO’MALLEY – H207790  \n  \n  \n3  \n  \nget worse.  A week later, the Claimant was pulling a cord in the scope and course of employment, \nwhen he experienced excruciating pain in his right shoulder.  The Respondents denied the case in \nits entirety.  An MRI revealed a tear in his right shoulder and surgery was recommended.   \n   The Claimant contends that he sustained a compensable right shoulder injury in the course \nand scope of his employment and that he is entitled to TTD, medical benefits, and that his attorney \nis entitled to an attorney fee. \n   All other issues are reserved.  \nRespondents:  \n  \nRespondents contend that Claimant did sustain any injury within the course and scope of \n \nhis employment. The Respondents further contend that the Claimant did not timely report the \nalleged on the job injury.  The Respondents had the Claimant’s medical records reviewed by Dr. \nOwen L. Kelly who opined that Claimant suffers from pre-existing degenerative condition of the \nright  shoulder.  (See  attached).    The Respondents  contend  that  Claimant’s  right  shoulder \ncomplaints are related to a pre-existing degenerative condition.       \n \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 both witnesses and observe their respective demeanor, I hereby make the \nfollowing findings 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 this \n     claim. \n \n2.       I hereby accept the above-mentioned proposed stipulations as fact. \n \n\nO’MALLEY – H207790  \n  \n  \n4  \n  \n3.      The Claimant proved by a preponderance of the credible evidence that he sustained                           \n a compensable right shoulder injury October 1, 2022, while in the course and scope   \nof his employment with the Respondent-employer. \n   \n          4.          The Claimant did not give his employer notice of his right shoulder injury until   \n     October 14, 2022.  Therefore, the Respondents are not liable for any benefits that  \n     accrued prior to this time.  \n \n          5.          The Claimant proved by a preponderance of the evidence that all of the medical  \n           treatment of record was reasonable and necessary medical treatment for his right  \n           shoulder injury of October 1, 2022, as well as the rotator cuff repair surgery   \n           recommended by Dr. Micheal Hubbard. \n     \n          6.         The Claimant is entitled to temporary total disability during a reasonable recovery  \n           period after his surgery, for which his attorney will be entitled to a controverted     \n          attorney’s fee.  \n          \nSummary of Evidence \n \nMr. John E. O’Malley (referred to herein as the “Claimant”), and his wife, Mrs. Rita \nO’Malley both testified on behalf of the Claimant during the hearing.  \n            The record consists of the October 27, 2023 hearing transcript and the following exhibits: \nSpecifically, Commission’s Exhibit 1 comprises the Commission’s Prehearing Order filed on \nSeptember 13, 2023 and the parties’ responsive filings; Claimant’s Exhibit 1 includes a Medical \nSummary Report and medical records consisting of nine pages, which were marked accordingly; \nand the Respondents’ Medical Exhibit comprises a letter authored on November 1, 2022 by Dr. \nOwen L. Kelly, consisting of two pages has been marked Respondents’ Exhibit 1. \n                  Procedural History  \nThe Claimant confirmed that he is sixty-nine years of age.  He completed high school.    \nAccording to the Claimant, he has worked in the trades most of his life.  Specifically, the Claimant \ntestified that he has done carpentry work and slowly gotten into making cabinets and various other \nitems.  The Claimant agreed that he has been solidly employed for his entire life.  \n\nO’MALLEY – H207790  \n  \n  \n5  \n  \n  He testified that he started working for Baywood Colony about three weeks before he was  \nsupposed to start, which was sometime in May or June of 2022.  The Claimant testified that his \njob there included a lot of maintenance-type work.  His employment duties included electrical \nwork, rebuilding the pumps on the pool, landscaping, mowing, and everything to keep the property \nrunning properly.  He testified that Baywood Colony is a pretty big complex.  It includes twenty-\neight townhouses and a house.  The Claimant testified that there are a lot of hills on the property.  \nAs part of the Claimant’s package deal with Baywood Colony, he was allowed to live in the house.         \n  Regarding his alleged injury on October 1, 2022, the Claimant explained: \nA  I was in the back behind Jim and Lesley’s and there’s a hill there, and I was \nWeed whacking on the hill, and I lost my footing and came down.  Like I explained \nto Randy the last time I met him, I actually got up, that I can remember, and I went \nto pull the rope ..... I went up on the sidewalk to pull the rope on the weed whacker \nto get it started again, and I went, oh, geez, I couldn’t do it, so I called my wife and \nI said why don’t you come back here, so I didn’t do any more weed whacking after \nthat, but I thought I just got a stinger when I fell.  You know what I mean, it’s a \nbruised shoulder, that’s all.  I mean, people who have played football know what \nstingers are, you know, when you come down on your shoulder and that’s all I \nthought it was.  Am I carrying on too much?     \n \n   The Claimant denied ever having a prior problem with his right shoulder.  He went on to \nexplain that prior to his injury, he hung seventy-two sheets of drywall with his wife on the ceiling.    \nAccording to the Claimant, they flipped a house right before that and they did all the work on it, \nand he never had any issue with his right shoulder.   \n  He admitted that when he fell, he injured his right shoulder.  The Claimant confirmed he is \nright-handed.  The Claimant admitted that when he called his wife, she came over to help him.  \nThe Claimant testified that when he slipped and fell, he slid down the hill, injuring his right \nshoulder.  He denied injuring any other body part. The Claimant admitted that he continued \nworking for the rest of the day, but he just rode the lawnmower.  According to the Claimant, he did \nnot really think much of his shoulder until his daughter came over and suggested he have it looked   \n\nO’MALLEY – H207790  \n  \n  \n6  \n  \nat because it could be something that would not resolve on its own.  At that time, the Claimant, his \ndaughter, Meghan O’Malley, worked for an orthopedic surgeon, Dr. Hubbard.  However, his \ndaughter no longer works for Dr. Hubbard.  Currently, she works in the labor and delivery area at \nthat hospital.  The Claimant confirmed that his daughter holds a Bachelor of Science degree in \nnursing (BSN).  According to the Claimant, his daughter suggested he have his shoulder checked \nout because he told her that he had limited range of motion, and that it was “real sore.”  He testified \nthat if his daughter had not said something, he would have given it a long time to heal because as \nfar as he was concerned, it was a bruise. \n  The Claimant first sought medical treatment for his right shoulder on October 13, 2022.  At \nthat time, he saw Dr. Michael Hubbard.  He reported to Dr. Hubbard that he had fallen on his right \nshoulder about two weeks ago.  At that time, the Claimant complained of right shoulder pain.  X-\nrays were taken of the Claimant’s right shoulder.  The radiographic findings were: “No fracture \nand no dislocation, small bone fragment noted in the subacromial space.”   The Claimant reported \nto  Dr.  Hubbard  that  the  quality  of  his  pain  was  throbbing,  sharp,  constant,  and  worsening.                                    \nDr. Hubbard opined that the Claimant’s right shoulder had signs and symptoms for “a full thickness \nrotator cuff tear.”  Therefore, Dr. Hubbard recommended an MRI of the Claimant’s right shoulder \nand after that he directed the Claimant to see him back in clinic. \n  An MRI was performed of the Claimant’s right shoulder.  The Claimant agreed that the \nMRI revealed a full thickness tear of the rotator cuff.  Also, the Claimant testified that that Dr. \nHubbard mentioned something about tendons retracting, which is not good when they retract.  He \nconfirmed that once the results of the MRI were confirmed, they recommended that he get it taken \ncare of right away because it was not going to get much better and he would be extremely limited.  \nAs a result, Dr. Hubbard scheduled the Claimant for right shoulder rotator cuff repair surgery.       \n\nO’MALLEY – H207790  \n  \n  \n7  \n  \n  Specifically, my review of the medical evidence demonstrates that the Claimant underwent \nan MRI of the right shoulder on October 20, 2022.  The radiologist reading the MRI was Dr. Steven \nWeiner.  His impression was: “1.  Complete full-thickness tear with tear of the supraspinatus \ntendon with retraction of the tendon. 2.  Partial intrasubstance tear of the infraspinatus tendon, with \nmild tendinosis of the subscapularis tendon.  3. Indistinct extra-articular long head of the biceps \ntendon, possibly torn and/or displaced. 4.  probable degeneration of the glenoid labrum.  5. Small \nglenohumeral join effusion.  6.  Moderate to severe arthritic disease of the AC joint.”   \n  The Claimant testified that he discussed his shoulder injury with his employer the next day \nafter seeing Dr. Hubbard on October 13, 2022.  He testified that he called Cindy Feltus on October \n14, 2022, and she was not sure if they had workers’ compensation insurance.  According to the \nClaimant, this went on and on, and he kept calling Cindy, so finally he called a person by the name \nof Gene Adams, who is a lawyer, and he happens to live in a condominium on the property.  The \nClaimant testified that once Mr. Adams got involved then things were done.  According to the \nClaimant, he found out from the bookkeeper, Joy Gray, that they had insurance.   At that point, he  \ncalled  the  insurance  company  himself  after  receiving  the  information  from  Ms.  Gray.  He \nconfirmed that Mr. Adams is also a member of the board.  The Claimant testified that there are \nthree board members, and they hired him.     \n  According to the Claimant, he was scheduled for surgery, a couple of weeks after the MRI \nbut the workers’ compensation carrier denied the surgery.  The Claimant admitted that he was able \nto raise his arm prior to his injury.  Now, he testified that it is very painful when he raises his arm.  \nPer the Claimant, he hung drywall from the ceiling, and screwed in all the sheets.  The Claimant \ntestified that previously he used a hammer and pounded nails in the ceiling.  He is now unable to \ndo that.  The Claimant denied ever seeing Dr. Owen Kelly or speaking with anyone from his office.  \n\nO’MALLEY – H207790  \n  \n  \n8  \n  \nHe specifically denied that Dr. Kelly ever examined him.  The Claimant admitted that a few ago \nyears, Dr. Farbstein, a physician in the Chicago area, told him he had arthritis, but he never gave \nit any thought because he never had an issue, ever.  He denied that he had a general complaint of \npain in his shoulder when he saw the doctor in Chicago.   Instead, at that time, the Claimant testified \nthat he sought treatment from him because he has diabetes.  He admitted that he had some tests \ndone, and then the doctor asked if he knew he had arthritis.  The Claimant admitted that he feels \nstiff every now and then but that is part of growing old.   \n  He specifically denied that he ever had any prior complaints with his right shoulder or \nhaving seen a surgeon for right shoulder complaints.  The Claimant denied that he sought prior \ntreatment for right shoulder pain before his work-related accident.  He also denied ever having any \ntrouble hanging drywall before his work-related accident. \n  The Claimant admitted that Cindy terminated him right before (a couple of days or so) his \nsurgery was supposed to take place.  According to the Claimant, his surgery was supposed to be \naround November 1, 2022, on a Friday.  As a result, the Claimant and his wife moved back into \nthe house that they had been working on for several years.  The Claimant testified that he was \nshocked that Cindy was terminating him.  He further testified that he thought she would have more \ncompassion.  However, she gave him two weeks to get out of the house.  He confirmed that he was \nworking at St. Mary’s Church at the time of his termination.  The Claimant explained he was able \nto work at Baywood because they started real early in the morning and his wife helped him to do \na lot of the work.  He confirmed that he worked at St. Mary’s only one day of the week, depending \non what needed to be done.  The Claimant stopped working there because he realized his shoulder \nwas hurt.  He was unable to climb a ladder and he could only watch to make sure things were being \ndone correctly.  The Claimant testified that he donated a lot of time to St. Mary’s.  According to \n\nO’MALLEY – H207790  \n  \n  \n9  \n  \nthe Claimant, about 50% of the work he did there was as a volunteer.  He could not recall when \nSt. Mary’s started paying him again following his injury.  The Claimant testified that he had been \noff work for a couple of months before he returned to work at St. Mary’s because it was a couple \nof months before he could lift his arm.  He confirmed that he did his own home therapy.  The \nClaimant agreed that it could have been in January 2023 when he returned to work for St. Mary’s.  \nThe Claimant currently works for St. Mary’s and St. John’s.   \n  The Claimant confirmed that he would like to have the surgery done.  He has plans to \ncontinue working until the day he dies.  The Claimant stated that he wants to have the surgery done \nbecause he could lose about fifteen percent of the use of his shoulder, and he does not want to have \na problem with that being an issue.  He testified that he has constant pain when he is trying to do \nsomething.  According to the Claimant, there are certain things that he has to do with his left hand \nnow.  The Claimant confirmed that he is asking for the Commission to approve the recommended \nsurgery.         \n  On October 27, 2022, the Claimant saw Jennifer Jones, APRN, in clinic for follow-up of \nhis right shoulder MRI.  At that time, both conservative and surgical intervention were discussed.  \nThe  Claimant opted  to  proceed with  surgery.  Therefore, Jones  planned “a right shoulder \narthroscopy with subacromial decompression, distal clavicle excision, rotator cuff repair biceps \ntenodesis.”       \n  Basically, on cross-examination the Claimant testified that he could not affirm or deny he \nbegan working for Baywood Colony on August 15, 2022.    He testified that the incident occurred \na couple of weeks prior to his first doctor’s visit, which would put it around October 3 because he \nwas on vacation, and they had to wait for him.  The Claimant confirmed that he renegotiated his \nagreement on October 3, with Cindy.  According to the Claimant, Cindy is the President of the \n\nO’MALLEY – H207790  \n  \n  \n10  \n  \nBoard, and she was the only person he ever spoke to about that.  However, the Claimant admitted \nthat he did not mention anything to her during their renegotiation process.  Per the Claimant, he \ndid not mention his shoulder to Cindy because he was sure he was going to get better.  He \nconfirmed he did not realize he was injured to the extent that he was until he had the x-rays, and \nthe MRI that Dr. Hubbard had ordered and read.  \n  The Claimant was asked about a report authored by Dr. Hubbard on October 13, 2022.  At \nthat time, the Claimant gave a history of having fallen about three years ago, which would have \nrendered an injury date around the latter part of September.  He explained that he was never sure \nof the exact time date of his injury.   \n  Once both diagnostic tests had been performed, the Claimant testified that he told Cindy \nFeltus he had fallen at work and needed surgery.  He confirmed that there are no human resource \npeople, they are property owners who are part of the Board of Director.   The Claimant confirmed \nthat he was scheduled for surgery on November 15, 2022.  He admitted that he had not been taken \noff work by Dr. Hubbard.  The Claimant also admitted that Dr. Hubbard has not placed any \nrestrictions or limitations on his work.            \n  The Claimant testified that after he reported his injury to Cindy Feltus, she spoke with some \nindividuals with workers’ compensation knowledge, including the attorney and they gave him the \ncontact information.  He admitted that he took it upon himself to call the bookkeeper, Joy Gray \nbecause he figured she would know since she pays all the bills.  He admitted that Dr. Hubbard \nsuggested he attempt to have his surgery performed and covered by Medicare.  His response, “Why \nshould Medicare pay when they have insurance?  That’s not their responsibility.  It’s not Medicare’s \nresponsibility.”  He confirmed that he had seen Dr. Hubbard twice, and then he dealt with the nurse \npractitioner. \n\nO’MALLEY – H207790  \n  \n  \n11  \n  \n  Mrs. Rita O’Malley, the Claimant’s wife of forty-six years testified on behalf of her \nhusband.   She confirmed that her husband called her after his fall.  Mrs. O’Malley testified that \nwhen she got there, the Claimant was over by the pool.  He was sitting on the landscape blocks, \nand he had dirt all over his head and down his right side.  Mrs. O’Malley testified that the Claimant \n“was shaken up” a little bit.  She testified that the Claimant tried to start the weed whacker again, \nbut he could not pull the cord at all with his right arm.  Mrs. O’Malley did not recall the date of \nher husband’s accident.  However, she agreed that October 1 was a reasonable date for when this \ninjury occurred.  \n  She denied that the Claimant ever complained of right shoulder pain prior to his injury.  \nMrs. O’Malley further denied that she had observed her husband experiencing any right shoulder \npain prior to that date.  However, she testified that after the Claimant’s injury, he did not do very \nmuch.  He tried mowing the lawn on the day of his injury, but the lawnmower jarred his arm \nbecause it is hilly around that area.  She also testified that he did not do anything the rest of the \nday, because he was sore.  According to Mrs. O’Malley, the Claimant kind of sat and held his arm \na few days and he did not really say anything because he does not complain.  She confirmed that \ntheir daughter came over and suggested he have it looked at.  Mrs. O’Malley did not recall when \nthey moved out of the condominium at Colony, but she recalled it being after Thanksgiving.          \n     On November 1, 2022, Dr. Owen Kelly opined, in relevant part, after reviewing the \nClaimant’s medical records and imaging:    \n  Mr. O’Malley has finding consistent with chronic degenerative tear of the rotator \ncuff.  The tendon is retracted to the mild portion of the humeral head which confers and is \nconsistent with chronicity.  This finding is not typically seen in an acute injury.   \n The acromioclavicular  joint  arthritis  is  definitely  chronic.   The  subscapularis \npathology  along  with  the  associated  biceps  findings  are  nearly  always  found  to  be \nchronic/degenerative.   \nMr. O’Malley’s treating physician has coded the rotator cuff tear as ICD10 code \nM75.121 which is nontraumatic. \n\nO’MALLEY – H207790  \n  \n  \n12  \n  \nAlthough the fall cannot be ruled out as the source of completing an already \ndiseased/torn rotator cuff, the other findings are definitely degenerative.  It is unlikely the \nfall caused these findings.  This is confirmed by the objective imaging.     \n       \n                             ADJUDICATION  \nA. Compensability    \nArkansas  Code  Annotated §11-9-102(4)(A)(i)  defines  compensable  injury  as  “[a]n \naccidental injury causing internal or external physical harm to the body . . . arising out of and in \nthe course of employment and which requires medical services or results in disability or death.  An \ninjury is accidental only if it is caused by a specific incident and is identifiable by time and place \nof occurrence.”   \nA compensable injury must be established by medical evidence supported by objective \nfindings.  Ark. Code Ann. § 11-9-102(4)(D) (Supp. 2019).  “Objective findings” are those findings \nthat cannot come under the voluntary control of the patient.  Ark. Code Ann. § 11-9-102(16)(A)(i).  \nComplaints of pain are not considered objective medical findings.  Ark. Code Ann. § 11-9-\n102(16)(A)(ii)(a).    \nIf  the  Claimant  does  not  establish  by  a  preponderance  of  the  evidence  any  of  the \nrequirements for establishing compensability, compensation must be denied.  Id. This standard \nmeans the evidence that has greater weight or convincing force.  Metropolitan Nat ’l Bank v. La \nSher Oil Co., 81 Ark. App. 269, 101 S.W.3d 252 (2003) (citing Smith v. Magnet Cove Barium \nCorp., 212 Ark. 491, 206 S.W.2d 442 (1947)).    \nA causal relationship may be established between an employment-related incident and a \nsubsequent  physical  injury  based  on  the  evidence  that  the  injury  manifested  itself  within  a \nreasonable period of time following the incident, so that the injury is logically attributable to the \n\nO’MALLEY – H207790  \n  \n  \n13  \n  \nincident,  where  there  is  no  other  reasonable  explanation  for  the  injury.   Hall  v.  Pittman \nConstruction Co., 234 Ark. 104, 357 S.W.2d 263 (1962).   \nA review of the evidence demonstrates that the Claimant  proved by a preponderance of the \nevidence that he sustained a compensable specific incident injury to his right shoulder during and \nin the course of his employment with the respondent-employer on October 1, 2022 and that the \ninjury has caused external physical harm to his body which required medical services and resulted \nin disability.    \nThe Claimant credibly testified he sustained an accidental injury to his right shoulder on \nOctober 1, 2022, while working on landscaping at Baywood Colony.  He credibly testified that he \nwas pulling on the rope of a weed whacker when he slipped on a hill and fell on his right shoulder.  \nThe Claimant testified that he thought he had sustained a stinger/bruise to his right shoulder, and \nit would heal in time.   \nImmediately after his fall, the Claimant called his wife, and she came over and assisted \nhim.   The Claimant’s account of the incident is credible and corroborated by the medical evidence \nof record and his wife’s testimony.  There was no evidence presented by the Respondents to the \ncontrary concerning the Claimant’s account of the mechanism of his accidental injury of October \n1, 2022.  Of note, the Claimant was not sure of the exact date of injury.  However, it is well \nestablished under Arkansas workers’ compensation law that the Claimant does not have to provide \nthe precise date of an injury. \nNevertheless, the Claimant testified that he thought he had a stinger, which would resolve \non its own.  His testimony demonstrates that he continued with problems involving his right \nshoulder.  A few days later, the Claimant told his daughter, who is a nurse, about his shoulder, and \nshe suggested he have it checked out.  On October 13, the Claimant sought treatment from Dr.  \n\nO’MALLEY – H207790  \n  \n  \n14  \n  \nHubbard, and he performed x-rays of the Claimant’s right shoulder, which revealed “a possible \nrotator cuff tear.”   The Claimant essentially testified that he reported the incident to his employer \nthe next day.  His testimony demonstrates that he reported his injury to Cindy Feltus.   \nThe Claimant provided a history to Dr. Hubbard of having injured himself at work as \npreviously described.  Since his work-related injury, the Claimant has consistently complained of \nright shoulder pain and limited range of motion in his upper extremity.  However, prior to his work-\nrelated injury, the Claimant had not complained of any type of symptoms to his right shoulder.  In \nfact, his testimony shows that although the Claimant is almost 70 years old, he was able to hang \ndrywall and perform other laborious activities without any type of problems with his right shoulder.  \nMoreover, the Claimant testified that he had not ever sustained a prior injury to his right shoulder.  \nNor had the Claimant ever previously sought any medical treatment for his right shoulder.  On the \nother hand, since his work-related fall, the Claimant has consistently complained of right shoulder \npain and other related symptoms, which has resulted in limited use of his left arm.   \nUnder  these  circumstances, although  the  Claimant  suffered  pre-existing  degenerative \ndisease, this condition was asymptomatic.  Thus, I am persuaded that the majority of the medically \nobjective measurable physical findings demonstrated on the October 20, 2022, MRI resulted from \nthe Claimant’s work-related fall of October 1, 2022.  As such, the Claimant’s right shoulder injury \nis established by medical evidence supported by objective findings revealed on the MRI of his \nright shoulder, which was taken on October 20, 2022.  Specifically, the MRI of the Claimant’s left \nshoulder included objective and measurable findings of “a complete full-thickness tear with tear \nof the supraspinatus tendon with retraction of the tendon.” \nIt is noteworthy that even Dr. Kelly opined that the Claimant’s work-related fall cannot be \nruled out as the source of completing an already diseased/torn rotator cuff.  However, he went on  \n \n\nO’MALLEY – H207790  \n  \n  \n15  \n  \nto opine that it is unlikely the fall caused these findings.  Hence, due to all of the above reasons, I  \nhave attached minimal weight to Dr. Kelly’s opinion.   \nTherefore, due to all of the foregoing reasons, I find that the Claimant has established by a \npreponderance of the evidence all of the elements necessary to establish a compensable right \nshoulder injury on October 1, 2022.       \nB.  Notice of injury \n                Notice of injury or death per Ark. Code Ann. §11-9-701 reads: \n(a)(1) Unless an injury either renders the employee physically or mentally unable \nto do so, or is made known to the employer immediately after it occurs, the \nemployee shall report the injury to the employer on a form prescribed or approved \nby the Workers’ Compensation Commission and to a person or at a place specified \nby the employer, and the employer shall not be responsible for disability, medical, \nor other benefits prior to receipt of the employee’s report of injury.... \n \n(b)(1) Failure to give the notice shall not bar any claim: \n(A) If the employer had knowledge of the injury or death.  \n(B) If the employee had no knowledge that the condition or disease arose out of and \nin the course of the employment; or \n(C) If the commission excuses the failure on the grounds that for some satisfactory \nreason the notice could not be given. \n  \nThe Respondents contend that they did not receive timely notice of the Claimant’s injury.  \nThe Claimant readily admitted that he did not notify Cindy Feltus, Property Owner’s Association \nBoard, of his injury until the following day after his medical appointment with Dr. Hubbard, after \ndiscovering he had a more severe injury than he thought he had sustained.  Medical records \ndemonstrate that the Claimant first underwent evaluation by Dr. Hubbard on October 13, 2022.  \nThat is  based on  the  testimony  of  the Claimant  and  the date  of  service  on  the medical \ndocumentation of the Claimant’s first evaluation by Dr. Hubbard.  The evidence before me shows \nthat the Claimant provided Baywood Colony notice of his injury on October 14, 2022. \n\nO’MALLEY – H207790  \n  \n  \n16  \n  \nThe record fails to establish the existence of any statutory grounds for excusing notice to \nthe employer prior to that date.  Therefore, the Respondents are not liable for any indemnity or \nmedical benefits on this claim prior to October 14, 2022.  Since the Claimant reported his injury \nafter his medical appointment of October 13, the Respondents are not liable for the medical \nservices received by the Claimant on this date, which occurred with Dr. Hubbard.    \nC. Reasonable and Necessary Medical Treatment \n  An employer shall promptly provide for an injured employee such medical treatment as \nmay be reasonably necessary in connection with the injury received by the employee.  Ark. Code \nAnn. § 11-9-508(a).   \nOn the basis of the record as a whole, and after reviewing the evidence in this case \nimpartially, without giving the benefit of the doubt to either party, I find that all of the medical \nevidence of record is causally related to the Claimant’s right shoulder compensable injury of \nOctober 1, 2022.  Dr. Hubbard has recommended that the Claimant undergo surgical intervention \nfor repair of his rotator cuff.  This modality of treatment is reasonable and necessary to repair the \nClaimant’s right shoulder rotator cuff tear injury.    \nIn this regard, prior to the Claimant’s accidental work-related injury of October 1, 2022, \nthe Claimant had not had any problems or treatment for his right shoulder injury.  It was not until \nafter the Claimant’s compensable injury that surgery was recommended for his shoulder.  Although \nthe Claimant suffered pre-existing degenerative disease, this condition was asymptomatic.  In fact, \nthe Claimant was able to engage in various laborious activities, including but not limited to \nhanging sheetrock.  I therefore further find that the Claimant has sustained his burden of proving \nby a preponderance of the evidence that all the medical treatment of record is reasonably necessary \n\nO’MALLEY – H207790  \n  \n  \n17  \n  \nin connection with the compensable injury he received on October 1, 2022, namely, to his right \nshoulder. \nThe Respondents are therefore liable for this medical treatment of record.  However, based \non the above finding concerning notice, the respondents are not liable for the medical care that the \nClaimant received on October 1, 2022.  (See above discussion regarding Notice).    \nD. Temporary Total Disability Benefits \nWith respect to the Claimant’s shoulder injury, this is an unscheduled injury.  An injured \nemployee  who  suffers  an  unscheduled  injury  is  entitled  to  temporary  total  disability \ncompensation during the time that he is within his healing period and totally incapacitated to \nearn wages.  Arkansas State Highway and Transportation Department v. Breshears, 272 Ark. \n244, 613 S.W. 2d 392 (1981).  The healing period ends when the underlying condition causing \nthe disability has 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). \nThe Claimant will be entitled to temporary total disability compensation following his \nsurgery with Dr. Hubbard.  In this regard, the Claimant is entitled to these benefits for a \nreasonable recovery period of time as established by Dr. Hubbard following his right shoulder \nrotator cuff repair surgery.           \n                                  AWARD  \n  \nIn accordance with the findings of fact and conclusions of the law set forth above, the  \n \n \n \n\nO’MALLEY – H207790  \n  \n  \n18  \n  \nRespondents are directed to pay the award on this claim for a right shoulder injury of October 1, \n2022.    \nIT IS SO ORDERED.  \n                            _______________________________  \n              HON. CHANDRA L. BLACK     \n            ADMINISTRATIVE LAW JUDGE","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H207790 JOHN E. O’MALLEY, EMPLOYEE CLAIMANT BAYWOOD COLONY HORIZONTAL PROPERTY, EMPLOYER RESPONDENT FIRSTCOMP INSURANCE COMPANY, INSURANCE CARRIER RESPONDENT MARKEL SERVICE, INC., THIRD PARTY ADMINISTRATOR RESPONDENT OPINION FILED MARCH 26, 2024 A hearing w...","fetched_at":"2026-05-19T22:56:53.627Z","links":{"html":"/opinions/alj-H207790-2024-03-26","pdf":"https://labor.arkansas.gov/wp-content/uploads/OMALLEY_JOHN_H207790_20240326.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}