{"id":"alj-H300312-2024-04-23","awcc_number":"H300312","decision_date":"2024-04-23","opinion_type":"alj","claimant_name":"Tab Ogden","employer_name":"Mcdonald’s/buckliew Enterprises","title":"OGDEN VS. MCDONALD’S/BUCKLIEW ENTERPRISES AWCC# H300312 APRIL 23, 2024","outcome":"denied","outcome_keywords":["denied:3"],"injury_keywords":["shoulder","back","neck"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/OGDEN_TAB_H300312_20240423.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"OGDEN_TAB_H300312_20240423.pdf","text_length":25729,"full_text":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. H300312 \n \nTAB OGDEN, Employee CLAIMANT \n \nMCDONALD’S/BUCKLIEW ENTERPRISES, Employer RESPONDENT \n \nRISK MANAGEMENT RESOURES, Carrier RESPONDENT \n \n \n \n OPINION FILED APRIL 23, 2024 \n \nHearing  before  ADMINISTRATIVE  LAW  JUDGE  ERIC  PAUL  WELLS  in Harrison, Boone \nCounty, Arkansas. \n \nClaimant  represented  by FREDERICK  S.  SPENCER,  Attorney  at  Law, Mountain  Home, \nArkansas. \n \nRespondents  represented  by CAROL  LOCKARD  WORLEY,  Attorney  at  Law, Little  Rock, \nArkansas. \n \n STATEMENT OF THE CASE \n \n On January  29,  2024,  the  above  captioned  claim  came  on  for  a  hearing  at Harrison, \nArkansas.      A  pre-hearing  conference  was  conducted  on October  9,  2023,  and  a  Pre-hearing \nOrder  was  filed  on October  10,  2023.      A  copy  of  the  Pre-hearing  Order  has  been  marked \nCommission's Exhibit No. 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 this claim. \n 2. The   relationship   of   employee-employer-carrier   existed   between   the   parties on \nNovember 21, 2022. \n 3. The respondents have controverted the claim in its entirety. \n By agreement of the parties the issues to litigate are limited to the following: \n\nOgden – H300312 \n \n-2- \n 1.  Whether  Claimant  sustained  a  compensable  injury  to  his  right  shoulder  on  or  about \nNovember 21, 2022. \n 2. Whether Claimant is  entitled to medical treatment for his compensable right shoulder \ninjury. \n 3.  Respondents  raise  lack  of  notice  as  a  defense  in  that  December  1,  2022,  was  the  first \nnotice of any alleged work-related injury. \n The claimant's contentions are as follows: \n“The   Claimant   sustained   a   compensable   injury   to   his   right \nshoulder.  The  Claimant  contends  that  he  was  attacked  by  another \nemployee  as  he  was  performing  employment  services  for  the \nrespondent employer. The Claimant contends that he did nothing to \ninstigate the attack. \n \nThe  Claimant  contends  that  he  is  entitled  to  reasonable   and \nnecessary medical treatment by Dr. Cutler and Dr. Sidani. \n \nThe Claimant contends he is entitled to past TTD benefits (dates to \nbe determined). \n \nThe  Claimant  contends  that  he  is  entitled  to  an  impairment  rating \nrelated  to  the  surgery  he  had  on  his  right  shoulder.  The  Claimant \ncontends that he is  entitled to permanent partial  disability benefits \nrelated to the rating.” \n \n The respondents’ contentions are as follows: \n“Respondents contend that Claimant did not suffer a compensable \ninjury  on  or  about  11/21/22.  Respondents  contend  they  did  not \nreceive  notice  of  any  claimed  injury  until  12/1/22  and  that  they \nwould not be liable for any benefits prior to receipt of actual notice \nof   injury   in   the   event   compensability   is   found.   Respondents \ncontend  that  Claimant’s  need  for  medical  treatment,  if  any,  is \nassociated  with  preexisting  and  underlying  problems  and  not  any \nacute injury while working for Respondent/Employer.” \n \n The  claimant  in  this  matter  is  a 38-year-old  male who  alleges  to  have  sustained  a \ncompensable  right  shoulder  injury  when  he  was  involved  in  an  altercation  he  alleges  to  have \n\nOgden – H300312 \n \n-3- \noccurred on November 21, 2022, between himself and another employee. The claimant identified \nthe other employee as Nick D’Angelo. Both the claimant and Mr. D’Angelo were working in the \nrespondent’s kitchen on November 21, 2022.  \n On direct examination the claimant described the altercation he alleges as follows: \nQ Okay.   So   sometime   after   that   point   in   time,   what \nhappened? \n \nA Well,  Nick  attacked  me.  He  grabbed  my  arm,  and  he \ntwisted  and  jerked  and  popped  and  he  and – and  he  was – I  think \nhe was drunk, and I’ve never been attacked before at a job and he – \nI didn’t even have a reason why he attacked me. \n \nQ How do you think – why do you think he was drunk? \n \nA Because I could smell alcohol on his breath; that’s why. \n \nQ Did his demeanor indicate he was mad at you or just mad at \n– what caused him to do it? Do you have any idea of why he did it? \n \nA I think just to hurt me. \n \nQ Why? \n \nA I don’t – that’s the reason I don’t know. I don’t know why \npeople  don’t  like  one  person  or  another.  Jealousy,  maybe,  or  I \ndon’t know, you know. I don’t know what causes people to hate \none person. \n \nQ Had  you  ever  had  an  altercation  or  problems  with  this \nemployee before? \n \nA No. In fact, I always liked him. \n \n The  claimant  was  questioned  on  direct  examination  about  his  reporting  of  the  alleged \naltercation as follows: \nQ As a result of that, did you tell your employer immediately \nwhen  it  happened,  or  was  it  later  in  the  day,  or  was  it  later  in  the \nweek, or what? \n \n\nOgden – H300312 \n \n-4- \nA As soon as  I – when  I went to leave that day,  I – we were \nswamped  all  day,  like,  I  don’t  know  why  it  seems  like  when \nsomething  happens  you  get  so  busy  that  you – I  call  it  taking \nbullets, you know, making a thousand burritos and everything else \nthat we do, sandwiches. We got so busy and then at the end of the \nday I told Tonya I said, “Tonya, I’d make a report. Nick attacked \nme this morning.” And she said, “Are you hurt?” And I said, “I \ndon’t even know yet.” But I was in like a different kind of pain \nthen. \n \nQ When  he  attacked  you,  how  do  you  know  that  something \nwas hurt? \n \nA Because something popped and I was going to try toughing \nit out because I’m a tough person. I mean look at my build. I mean \nI’m not a weakling. And... \n \nQ How tall are you? \n \nA I’m five-eleven. \n \nQ How much do you weigh? \n \nA Probably 199 now. \n \nQ And so you felt a pop? \n \nA Yes, sir. \n \nQ And you said, “It was a different pain.” And how was it \ndifferent? \n \nA Like I couldn’t no longer lift my arm up, like I had full \nfunction. Can I demonstrate? \n \nQ Sure. \n \nA I can – when I lift up my arm, I can lift my arm up like this \nnow.  And  I  could  before  he  attacked  me.  After  he  attacked  me,  I \ncould only lift it this high. \n \n While  the  claimant  did  report  the  alleged  altercation  at  the  end  of  the  day  in  which  he \nalleges  it  occurred,  he  did  not  report  an  alleged  injury  from  that  alleged  altercation  until \n\nOgden – H300312 \n \n-5- \nDecember 1 or December 2, 2022. Following is a portion of the claimant’s cross examination \ntestimony: \nQ Okay. And you told the – you told the judge on direct you \nwere at the doctor within a day of the accident. There’s no medical \nrecords in November. You didn’t go to a doctor until after you \nstarted saying you had a work injury on December 1\nst\n, right? \n \nA The work – I was going to the doctor prior for the pain. \n \nQ Okay. I’m talking about between November 21\nst\n and when \nyou  first  reported  an  injury  on  the  1\nst\n of December. There’s no \ndoctor visits in that window of time, right? \n \nA I  did  report  the  attack  and  stuff  to  Tonya  Mosley,  and  the \nvery next day I wrote out a statement and gave it to her. \n \nQ Okay.  Reporting  the  attack  and  reporting  a  work-related \ninjury are two different things. Don’t you agree with that? \n \nA Reporting an incident is the same thing. \n \nQ Okay.  In  the  report  of  an  incident,  you  did  not  report  that \nyou were injured in any way. You’ve already agreed with me on \nthat. \n \nA I told her I wasn’t sure. \n \nQ In  your  deposition  under  oath,  you  told  me  December  1\nst\n \nwas the first time. Are you going back on that testimony? \n \nA The first time that I had when to the doctor over the injury? \n \nQ No,  you  told  me  December  1\nst\n was  the  first  time  you \nreported a work injury to anyone at McDonald’s under oath at your \ndeposition. Are you changing your – \n \nA. Okay. No. \n \nQ Let me finish my question, please. \n \nA Okay. \n \nQ Are you changing your testimony today? \n\nOgden – H300312 \n \n-6- \n \nA No. I think I can stick with that. \n \nQ Okay.   Now   in-between   the   21\nst\n of   November   and \nDecember 1\nst\n when you finally tell Tonya that you were saying you \nwere  hurt,  you  were  working  your  regular  duty,  regular  hours, \nregular shifts, right? \n \nA Yes. \n \n The respondent called Tonya Mosley as a witness. Ms. Mosley is the general manager for \nthe respondent’s facility where the claimant alleges the altercation on November 21, 2022, to \nhave occurred. Following is a portion of Ms. Mosley’s direct examination testimony about the \nclaimant’s reporting of the alleged altercation: \nQ Mr.  Ogden  has  testified  multiple  times  today  that  he  told \nyou he didn’t know if he was hurt on the day of the incident. Did \nhe make any type of statement like that to you? \n \nA No, sir. \n \nQ On the 21\nst\n? \n \nA No, sir. \n \nA Did  he  report  an  incident  of  Nick D’Angelo putting  his \nhands on him? \n \nA Yes. \n \nQ Was  there  any  mention  by  Mr.  Ogden  of  being  hurt  or \nthinking he was hurt – \n \nA No. \n \nQ -- with regard to his right shoulder? \n \nA No. \n \nQ Did you hear anything about him saying he had any injury \nbecause of being touched by Nick D’Angelo before December 1\nst\n, \n2022? \n\nOgden – H300312 \n \n-7- \n \nA No. \n \nQ And  did  you  work  with  Nick  on  a  day-in/day-out  basis  or \non  a  regular  basis  in  that  window  of  time  between  the  21\nst\n and \nDecember 1\nst\n? \n \nA Yes. \n \n A First Report  of Injury  is  found  at  Respondents’  Exhibit  2,  page  6, regarding  the \nclaimant’s allegation of injury to his right shoulder from the November 21, 2022, altercation he \nalleges. That First Report of Injury is marked as received on December 2, 2022.  \n The  first  medical  record  in  evidence  after  November  21,  2022,  is  a  visit  note  from \nArkansas Orthopedics Sports Medicine in Harrison, Arkansas. Following is a portion of that visit \nnote: \nImpression/Plan: \nThis  37-year-old  male  well-known  to  us  after  performing  a  AC \nreconstruction a revision a reconstruction several years ago is here \nwith  chief  complaint  of  right  shoulder  injury.  He  states  he  was \ninvolved  in  an  altercation  a  few  weeks  ago  he  got  his  right \nshoulder  injured. He  had  gone  to  formal  physical  therapy  and  he \nstates  it  helped  a  little  bit  but  is  having  quite  a  bit  of  pain  and \nweakness. \n \nPhysical exam right shoulder shows prominence over the AC joint \nwith  feelings  of  instability.  He  has  positive  supraspinatus  and \nJobes  testing.  Negative  Spurling’s.  He  has  5/5  strength  biceps \ntesting.  He  has  full  range  of  motion.  Forward  flexion  180  degrees \nexternal rotation to 45. \n \nX-rays  3  views  of  the  right  shoulder  today  show  some  superior \nmigration  of  his  clavicle  and  possibly  some  migration  of  his \nretention button. \n \nAssessment  and  plan,  right  shoulder  injury  he  may  have  stretched \nhis donor graft or the repair may have failed possibly has a rotator \ncuff injury due to the altercation he was in. He has been already in \nformal  physical  therapy.  At  this  point  we  have  recommended  an \n\nOgden – H300312 \n \n-8- \nMRI of his right shoulder. We will make further recommendations \npending the studies. \n \n On  December  28,  2022,  the  claimant  underwent  an  MRI  of  the  right  shoulder  at  North \nArkansas  Regional  Medical  Center  in  Harrison,  Arkansas.  Following  is  a  portion  of  that \ndiagnostic report: \nFINDINGS:    Postsurgical    changes    are    seen    of    AC    joint \nreconstruction. The supraspinatus, infraspinatus, and subscapularis \nare intact. The biceps tendon is well seated in the bicipital groove \nand shows appropriate labral attachment. Degenerative changes are \nseen  involving  the  posterior  glenoid  with  likely  labral  tear.  Joint \ncapsule is slightly thickened. \n \nIMPRESSION:   Possible   tear   of   the   posterior   labrum   with \nassociated  degenerative  changes  of  dislocation.  Joint  capsule  is \nthickened raising the possibility of adhesive capsulitis. Postsurgical \nchanges are seen of AC joint reconstruction. \n \n On  December  29,  2022,  the  claimant  was  seen  by  Dr.  Tarik Sidani  of  Arkansas \nOrthopedics and Sports Medicine. Dr. Sidani recommended surgical intervention at that time for \nthe claimant’s right shoulder. Following is portion of that medical record: \nChief Complaint: Right shoulder \n \nHPI:  This  is  a  37  year  old  male  who  is  being  seen  for  a  chief \ncomplaint of Right shoulder, post MRI rt shoulder Dec. 28 @ 4pm \nchkin @ NARMC. \n \nImpression/Plan \nMRI follow-up right shoulder. \n \nPhysical  examination  shows  a  deformity  at  the  AC  joint  gross \ninstability  here  exquisite  tenderness  palpation  over  the  posterior \naspect  of  the  clavicle  prominent  hardware  shoulder  joint  itself \nshows  negative  supraspinatus  sign  negative  biceps  maneuvers  no \ninstability posterior or anteriorly negative labral maneuvers. \n \nMRIs reviewed as well as plain film x-rays shows redislocation of \nthe  AC  joint  with  hardware  pulled  through  the  coracoid  process \nradiologist   reading   this   is   possible   posterior   labral   tear   and \n\nOgden – H300312 \n \n-9- \nunimpressed by this he also has advanced degenerative changes of \nthe distal clavicle. \n \nAssessment  plan  recurrent  AC  separation  at  this  patient’s  age \nactivity level and amount of instability and dislocation at this point \nwill  recommend  revulsion  surgery  risks  benefits  potential  case \npostoperative  course  healing  times  and  restrictions  to  lifting  were \nall  discussed  he  understands  like  proceed  we  will  get  him  on  the \nschedule  for  right  AC  reconstruction  and  distal  clavicle  excision \nutilizing semitendinosus allograft. \n \n On  February  10,  2023,  the  claimant  underwent  surgical  intervention  at  the  hands  of  Dr. \nSidani. Following is a portion of that operative report: \nPREOPERATIVE DIAGNOSIS: \n1. Recurrent AC separation right shoulder \n2. Acromioclavicular arthritis right shoulder \n \nPOSTOPERATIVE DIAGNOSIS: \n1. Recurrent AC separation right shoulder \n2. Acromioclavicular arthritis right shoulder \n \nPROCEDURE: \n1. Revision  reconstruction  right  AC  joint  and  coracoclavicular \nligaments \n2. Distal clavicle excision, open \n \n The   claimant   has   returned   to   work   for   the   respondent   and   was   asked   on   direct \nexamination about his “ability after the surgery.” \nQ Tell  the  judge  in  your  own  words  what  has  happened  in \nterms  of  your  ability  after  the  surgery.  Have  you  been  able  to  go \nback to work at McDonald’s? \n \nA Yes, sir. Your Honor, I was attacked at McDonald’s, and \nthese  are  in  my  own  words.  I  was  attacked  by  Nick D’Angelo.  I \ndidn’t know his last name, but he attacked me. He jerked my left or \nright arm, I don’t even remember this, but the way that he jerked \nme, he popped something and tore my arm off. I mean – and I have \nworked at McDonald’s for two years prior, and I’ve continued to \nwork there afterwards on this. \n \n\nOgden – H300312 \n \n-10- \n The claimant has had serious difficulties with his right shoulder prior to the alleged injury \non  November  21,  2022. On  direct  examination  the  claimant  discussed  his  prior  right  shoulder \ndifficulties as follows: \nQ Now, Tab, one of the things that – one of the questions that \nwe  have  is  that  you  had  had  prior  problems  with  your  right \nshoulder before this injury and you’ve not really denied that, have \nyou? \n \nA No, I don’t deny that at all. In fact, it hurts right now. I \nthink I’m going to have to live with the pain all my life. \n \nQ But  did  you  ever  lose  any  time  or  have  any  problems \nassociated  with  the  shoulder  that  interfered  with  your  ability  to \nwork prior to November 21 of 2022? \n \nA No, sir. \n \nQ But you did have a surgery, did you not, beforehand? \n \nA Yes, I think – I believe two prior surgeries. \n \nQ And to the right shoulder? \n \nA Yes, sir. \n \nQ And  you  worked  there  for  approximately,  what,  two  years \nwhen the injury occurred? \n \nA Two years, I’d say. \n \n On   cross   examination   the   claimant   was   also   questioned   about   his  right   shoulder \ndifficulties before his alleged November 21, 2022, injury as follows: \nQ Mr. Ogden, I want to talk to you in more detail about your \nproblems before November 21\nst\n of 2022. You wrecked a bicycle in \n2018 and had a pretty severe shoulder separation, correct? \n \nA Yes. \n \nQ And you had to have surgery with Dr. Sidani? \n \n\nOgden – H300312 \n \n-11- \nA I believe so. \n \nQ Alright.  And  going  forward  from  there  you  told  me  your \nshoulder hurt all the time, correct? \n \nA Yes. \n \nQ Alright.  It  popped  again  that  same  year  while  you  were  in \njail,   and   your   shoulder   and   neck   started   hurting,   and   they \ndetermined you had another complete separation; correct? \n \nA Yes, sir. \n \nQ You had to have a second operation with Dr. Sidani, right? \n \nA Yes, sir. \n \nQ And coming out of that  second operation you continued to \nhave severe ongoing pain in that right shoulder, right? \n \nA Correct. \n \nQ Alright. You told me it hurt all the time, and it was hurting \nwithin the seven days leading up to November 21\nst\n, 2022, right? \n \nA Yes, sir. \n \nQ And you explained it was a 10 out of 10 on a pain scale for \nat least six months before this accident, right? \n \nA Yes, sir. \n \nQ And if 10 is the max on the pain scale, you can’t get any \nworse than 10 out of 10, can you? \n \nA I don’t think so. \n \nQ Okay.  And  you  confessed  here  on  direct  you  were  already \nseeing  a  pain  specialist  for  the  shoulder  before  November  21\nst\n, \n2022, right? \n \nA Yes. Yes, sir. \n*** \n\nOgden – H300312 \n \n-12- \nQ You’ve  consistently  complained  of severe  right  shoulder \npain  and  neck  pain  from  2018  all  the  way  up  to  this  incident  on \nNovember 21\nst\n, 2022, right? \n \nA Yes, sir. \n \nQ And you explained the pain you have had before November \n21\nst\n,  2022,  was  going  through  the  collar  bone/clavicle  into  the \nshoulder, right? \n \nA What I believe is that, those body parts. \n \n The  respondent  has  also  introduced  several  medical  records  dating  from  September  10, \n2018, through October 20, 2022, that well document the claimant’s long history of right shoulder \ndifficulties. In fact, the claimant was actively treating for his right shoulder about a month before \nthe November 21, 2022, injury he alleges. \n It is the claimant’s burden to prove that he sustained a compensable right shoulder injury \non  November  21,  2022,  during  the  altercation  he  alleges  to  have  occurred  between  himself  and \nMr. D’Angelo.  \nIn  order  to  prove  a  compensable  injury  as  the  result  of  a  specific  incident  that  is \nidentifiable by time and place of occurrence, a claimant must establish by a preponderance of the \nevidence  (1)  an  injury  arising  out  of  and  in  the  course  of  employment;  (2)  the  injury  caused \ninternal or external harm to the body which required medical services or resulted in disability or \ndeath;  (3)  medical  evidence  supported  by  objective  findings  establishing  an  injury;  and  (4)  the \ninjury was 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 The  respondents  called  Ms.  Adriane Green  as  a  witness  in  this  matter. Ms.  Green  is \ncurrently  a  general  manager  for  the  respondent  but  served  as  a  district  manager  for  the \nrespondent  in  November  of  2022  which  included  the  responsibility  for the facility  the  claimant \n\nOgden – H300312 \n \n-13- \nalleges  the  November  21,  2022,  altercation  and  injury  to  have  occurred.  Ms.  Green  gave  direct \nexamination  testimony  about  her  interaction  with  the  claimant  about  the  alleged  altercation  and \nobtaining video of the alleged altercation as follows: \nQ Had you received any report that Mr. Ogden was saying he \nhad been hurt at work before December 1\nst\n, 2022? \n \nA I don’t believe so. I got a phone call from Tonya, saying \nhey, I need to come up there. I think that was about the first. \n \nQ And these conversations Mr. Ogden is talking about where \nyou – you’re talking about the incident, you’re looking at video, \nyou’re talking about going to doctors, is that after December 1\nst\n, on \nor after December 1\nst\n? \n \nA It  was  on  or  after.  Yeah.  Because  I  had  to  have  him  come \nup there and show me the incident, where it happened. \n \nQ Okay. I’ve introduced a video for the judge to watch and I \nhave it here on my iPad, and we’ll look at it here in a minute. Did \nyou produce or procure that video? \n \nA Yes, I did. \n \nQ And did you share that with Mr. Ogden in the course of the \ninvestigation – \n \nA Yes, I did. \n \nQ -- we were just talking about? Did he look at the video with \nyou? \n \nA Yes. \n \nQ And did he agree that this video that we have was what he \nwas talking about as far as – \n \nA Yes. \n \nQ -- it   being   an   attack   or   an   incident   involving   Nick \nD’Angelo? \n \nA Yes. \n\nOgden – H300312 \n \n-14- \n \n The video was played during the hearing and this administrative law judge has reviewed \nit  multiple  times  in  preparation  for  issuing  a  decision.  Mr. D’Angelo is  in  a  black  shirt  and  the \nclaimant is wearing a blue shirt. At one point in the relatively short video, around the 49 second \nmark, Mr. D’Angelo does appear to very briefly lay a hand on the claimant’s right shoulder, but I \nfind  no  force  being  used.  It  is  certainly  a  better  descriptor  to  say  it  was  a  gentle  touch  than  a \nforceful  touch  of  the  right  shoulder.  At  roughly  the  one-minute  mark,  Mr. D’Angelo does  use \nboth hands to pull downward on the claimant’s left arm. But frankly, it does not appear to have \nmuch force or effect on the claimant. During the remainder of the video, it does not appear that \nthe two men have any physical contact. I also note it does not appear that the claimant is in any \nphysical distress. The only pull or tug to the claimant’s body by Mr. D’Angelo is to his left arm, \nnot his right.  \nThe claimant was asked on cross examination about the video as follows: \nQ Okay. You’ve seen a video of the incident that you have \ndescribed here today with Nick grabbing you, correct? \n \nA Yes, when Adriane showed it to me. I think that’s the only \ntime I’ve seen it prior. \n \nQ So  you  watched  it  with  Adriane who  was  sitting  next  to \nme? \n \nA Yes, sir. \n \nQ And you don’t dispute that what you two guys watched on \nthe video is the incident you are talking about with Nick, right? \n \nA That’s me getting attacked, yes, sir. \n \n The claimant can certainly show objective medical findings regarding this right shoulder, \nparticularly   given   his   history   of   right   shoulder   treatment,   including   two   prior   surgical \n\nOgden – H300312 \n \n-15- \ninterventions.  However,  the  claimant  cannot  prove  a  causal  relationship  between  any  objective \nmedical findings regarding his right shoulder and the November 21, 2022, altercation he alleges. \nIt is not possible for a reasonable person to view the video evidence of the altercation he alleges \non November 21, 2022, and conclude that his right shoulder was injured or even affected in some \nway.  The  claimant  has  failed  to  prove  by  a  preponderance  of  the  evidence  that  he  sustained  a \ncompensable  right  shoulder  injury  on  or  about  November  21,  2022.  As  the  claimant  has  been \nunable to prove that he sustained a compensable injury to his right shoulder, he is also unable to \nprove  his  entitlement  to  medical  treatment  for  his  right  shoulder.  The  respondents  have  also \nraised the lack of notice defense in this matter. Given that the claimant failed to prove his alleged \nright shoulder injury compensable, the respondent’s lack of notice defense is moot. \n From a review of the record as a whole, to include medical reports, documents, and other \nmatters properly before the Commission, and having had an opportunity to hear the testimony of \nthe  witnesses and  to  observe their demeanor,  the  following  findings  of  fact  and  conclusions  of \nlaw are made in accordance with A.C.A. §11-9-704: \n FINDINGS OF FACT & CONCLUSIONS OF LAW \n 1.  The  stipulations  agreed  to  by  the  parties  at  the  pre-hearing  conference  conducted  on \nOctober  9,  2023,  and  contained  in  a  Pre-hearing  Order  filed October  10,  2023,  are  hereby \naccepted as fact. \n 2. The claimant has failed to prove by a preponderance of the evidence that he sustained a \ncompensable injury to his right shoulder on or about November 21, 2022. \n 3. The claimant has failed to prove by a preponderance of the evidence that he is entitled \nto medical treatment for his right shoulder. \n 4. The respondent’s defense of lack of notice is moot. \n\nOgden – H300312 \n \n-16- \n ORDER \nPursuant  to  the  above  findings  and  conclusions,  I  have  no  alternative  but  to  deny  this \nclaim in its entirety. \nIf  they  have  not  already  done  so,  the  respondents  are  directed  to  pay  the  court  reporter, \nVeronica Lane, fees and expenses within thirty (30) days of receipt of the invoice. \n IT IS SO ORDERED. \n \n                                ____________________________                                               \n       HONORABLE ERIC PAUL WELLS \n       ADMINISTRATIVE LAW JUDGE","preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H300312 TAB OGDEN, Employee CLAIMANT MCDONALD’S/BUCKLIEW ENTERPRISES, Employer RESPONDENT RISK MANAGEMENT RESOURES, Carrier RESPONDENT OPINION FILED APRIL 23, 2024 Hearing before ADMINISTRATIVE LAW JUDGE ERIC PAUL WELLS in Harrison, Boone County, Arkansas. Cl...","fetched_at":"2026-05-19T22:55:38.393Z","links":{"html":"/opinions/alj-H300312-2024-04-23","pdf":"https://labor.arkansas.gov/wp-content/uploads/OGDEN_TAB_H300312_20240423.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}