{"id":"alj-H300483-2023-12-15","awcc_number":"H300483","decision_date":"2023-12-15","opinion_type":"alj","claimant_name":"Jason Love","employer_name":null,"title":"LOVE VS. REYNOLDS CONTRUCTION COMPANY, INC.AWCC# H300483 DECEMBER 15, 2023","outcome":"denied","outcome_keywords":["dismissed:1","granted:1","denied:3"],"injury_keywords":["neck","back","shoulder","strain","thoracic","herniated"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/LOVE_JASON_H300483_20231215.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"LOVE_JASON_H300483_20231215.pdf","text_length":23605,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nAWCC FILE No H300483 \n \nJASON B. LOVE, EMPLOYEE        CLAIMANT \n \nREYNOLDS CONTRUCTION COMPANY, INC.,  \nEMPLOYER                     RESPONDENT \n \nAMERICAN CASUALTY CO. OF READING, P.A.,/ \nGALLAGHER BASSETT, CARRIER/TPA          RESPONDENT \n \n \n \nOPINION FILED 15 DECEMBER 2023 \n \n \nOn  hearing  before Arkansas Workers’ Compensation Commission (AWCC) Administrative \nLaw Judge JayO. Howe, 14 September 2023, Pine Bluff, Jefferson County, Arkansas. \n \nMs.  Laura  Beth  York, Attorney-at-Law  with Rainwater,  Holt  &  Sexton of  Little  Rock, \nappeared for the claimant. \n \nMs. Karen H. McKinney, Attorney-at-Law with the Barber Law Firm of Little Rock, appeared \nfor the respondents. \n \nI.  STATEMENT OF THE CASE \n \nThe above-captioned case was heard on 14 September 2023 in Pine Bluff, Arkansas, \nafter  the  parties  participated  in  a  prehearing  telephone  conference  on 6  June 2023. A \nPrehearing Order, admitted to the record without objection as Commission’s Exhibit No 1, \nwas entered that same day. The Order stated the following ISSUES TO BE LITIGATED: \n1. Whether  the  claimant sustained  compensable  injuries  to  his  neck,  back,  and  left \nshoulder by specific incident. \n \n2. Whether the claimant is entitled to reasonable and necessary medical treatment. \n \n3. Whether the claimant is entitled to temporary total disability benefits from 24 October \n2022 to a date yet to be determined. \n \n4.   Whether the claimant is entitled to controverted attorney’s fees. \n \nAll other ISSUES were reserved. \n\nJ. LOVE- H300483 \n2 \n \nThe Prehearing Order set forth the following STIPULATIONS: \n1.   The AWCC has jurisdiction over this claim. \n2.   An employee/employer/carrier relationship existed between the parties on 23 October \n2022 and at all other times relevant to this claim. \n \n3.   The respondents have controverted this claim in its entirety. \n \n3.   The claimant’s average weekly wage\n1\n was  $786,  entitling him to  temporary  total \ndisability  and  permanent  partial  disability  in  the  amounts  of  $524 and  $393, \nrespectively. \n \nThe following WITNESSES  testified at  the  hearing:  the  claimant  testified  on  his  own \nbehalf; and Mr. Casey Harness, Mr. James “J.T.” Tillman, Mr. Wes Brandon, and Mr. Ronnie \nMichael Reynolds testified on behalf of the respondents. \nThe parties’ CONTENTIONS, as set forth in their prehearing questionnaire responses, \nwere incorporated by reference into the Prehearing Order. Essentially, the claimant contends \nthat he suffered a compensable injury on 23 October 2022 and that he is entitled to associated \nbenefits,  while  the  respondents  contend  that  he  did  not  sustain  a  compensable  injury  by \nspecific  incident  and  that  any  back, shoulder, or  neck  issues  the  claimant  experienced  are \npre-existing and not arising out of his employment. \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \nHaving  reviewed  the  record  as  a  whole  and  having  heard  testimony  from  the  witness, \nobserving her demeanor, I make the following findings of fact and conclusions of law under \nArkansas Code Anotated § 11-9-704: \n1. The AWCC has jurisdiction over this claim. \n \n2. The parties’ stipulations are accepted as fact. \n \n4. The claimant has  not  proven  that  he  suffered  a  compensable  injury  on  23  October \n2022. \n \n \n1\n The 6 June 2023 Order noted that a stipulated Average Weekly Wage would be offered at \nthe time of the hearing. These amounts are reflective of the same. \n\nJ. LOVE- H300483 \n3 \n \n4. In the absence of a compensable injury, the other issues are moot and need not be \nspecifically addressed. \n \n5. Accordingly, the claimant is not entitled to an attorney’s fee. \n \nIII.  EVIDENCE PRESENTED AT THE HEARING  \n The claimant testified on his own behalf as the sole witness called for his case. The \nrespondents then called Mr. Casey Harness, Mr. James “J.T.” Tillman, Mr. Wes Brandon, \nand Mr. Ronnie Michael Reynolds. Their relevant testimony is recounted below. \nA. Claimant on Direct Examination  \nJason  Love is  a  thirty-two (32) year old  high  school  graduate  with  a  history  of \nconstruction and service industry work. (TR at 10-11) He began working for the respondent \nas a painter on 18 April 2022. Towards the end of September of that year, he began working \nas  a  general  laborer  with  the  carpentry  crew.  This  work  still  involved  painting,  but  also \nhelping with ceiling demolition, cleanup, moving furniture, and preparing areas for painting. \n(TR at 12) \nAccording to his testimony, the claimant participated in a “big furniture move” in \nearly October, when he “over-strained and hurt” himself between his left shoulder blade and \nspine, but kept working. (TR at 13) Mr. Love said that he mentioned some pain, but did not \nreport an accident “because at the time, I didn’t feel like there was anything to report.” (TR \nat 14)  \nOn 23 October 2022, however, the claimant “woke up that morning immobile and in \nsevere pain” that felt like “not simply a sore muscle or something of that nature. It was \nsomething more severe it felt.” Id.  Mr.  Love  presented  to  an  urgent  care  clinic,  where  he \nthought  that  he  mentioned  hurting  himself  at  work. According  to  the  clinic  notes,  his \ncomplaints were listed as: \n8/10 back pain medial to left shoulder blade x3 weeks- states he has had \npleurisy in the past and it feels very similar- states he has had a catch in his \n\nJ. LOVE- H300483 \n4 \n \nbreath  because  of  pain.  Denies  cough,  runny  nose,  sore  throat.  He  works \nconstruction  and  lifts  heavy  objects  often.  He  has  tried  ibuprofen  without \nimprovement. Denies chest pain- pain is primarily in the back. \n \nSee, (Cl.Ex. 1   at 1-6) Chest   X-rays   showed   no   findings.   He   was   diagnosed   with \nmusculoskeletal  strain,  prescribed  a  muscle  relaxer,  and  authorized  to  return  to  work \nwithout restrictions the following day. Id. \n The claimant testified that he mentioned his shoulder bothering him while at work, \nbut that it was “not directed as a – as a on-the-job report filed so to speak.” (TR at 15) Mr. \nLove also said that he was able to perform all work duties before 23 October and that while \nthere was some pain, it seemed manageable. He confirmed that while he woke up in pain on \nthe 23\nrd\n, that was a Sunday and that he had not worked since Friday, 21 October 2022. (TR \nat  16) The  claimant  denied  hunting  or  fishing  or  playing  football  over  the  course  of  the \nweekend. He said that working in general labor and construction, one anticipates some aches \nand pains. (TR at 17) The claimant notified his supervisor Casey Harness via text message \nabout  seeking  treatment. (TR  at  18) Some  of  that  and  subsequent  text  exchanges  were \nintroduced into the record as (Claimant’s Exhibit 2) \n Mr. Love presented for treatment again, this time at the emergency department, on \n31 October 2022. See, (Cl. Ex. 1 at 7-13)  He complained again of pain, now for the preceding \nmonth, and that it was getting worse and disrupting his sleep. He reported feeling numbness \nand tingling down his left upper extremity since his previous visit, but denied a fall or injury. \nA thoracic  spine CT report  showed  no  acute  abnormalities.  He  was  diagnosed  with \nmusculoskeletal  pain  and  radicular  pain,  referred  for  orthopaedic  follow-up,  prescribed \nTylenol #3 and Flexeril, and authorized to return to work without restrictions after three (3) \ndays. Id. \n The  claimant  underwent  an  MRI  study  on  11  November  2022 that  revealed  a \nherniated disc and eventually saw Dr. Seale. (TR at 21) Mr. Love stated that he attributed \n\nJ. LOVE- H300483 \n5 \n \nhis pain to “over-exertion at work” from “immense moving, heavy lifting, et cetera, things of \nthat nature that would result in a sore or a disgruntled muscle.” Id. But he denied filing a \nworkers’ compensation claim around that time. (TR at 22)  \nMr. Love stated that he found a Form N online and provided that to his employer on \nor about 16 December 2022, acknowledging that he gave them notice of an alleged workplace \ninjury  at  that  time. See, (Cl.  Ex.  3)  The  claimant  denied asking for  or  about medical care \nfrom the respondents at the time because he “had already gone to the doctor and that was \nalready in motion.” (TR at 23)  According to the claimant he told Mr. Reynolds that he meant \nno ill will in filing the form, but thought it appropriate “with there being a possible surgery \nand  with – to  my knowledge, that the  incident  happening during work, it seemed  like  the \nappropriate next step.” (TR at 24)  \nThe claimant was unsure about his days worked between the two (2) provider visits, \nbut stated that he had not performed any work for the respondent since 31 October 2022. (TR \nat 25)  \nAccording to the claimant, Dr. Seale performed a C7 to T1 spinal procedure on 23 June \n2023. He remained under Dr. Seale’s care at the time of the hearing. He denied applying for \nSocial  Security  Disability  or  unemployment  benefits,  but  discussed  the  latter with  the \nrespondent. (TR at 26)  \nMr. Love testified that he had not experienced the kind of pain he felt in October since \nhis mid-teens. Most work-related pains he had encountered since, he said, could be relieved \nwith  over-the-counter  pain  medication  and  hot  or  cold  compresses.  The  claimant  denied \nseeking medical treatment for pain in the past or having a primary care physician, but stated \nthat he underwent a previous MRI scan for lower back pain in 2016 when he injured himself \nworking at a rock packing plant. (TR at 28-29) He did not pursue a workers’ compensation \n\nJ. LOVE- H300483 \n6 \n \nclaim associated with that injury. Mr. Love began working another job instead of returning \nafter that injury. \nThe claimant testified that the surgery with Dr. Seale provided some relief and that \nphysical  therapy  had  helped,  but  that  his recovery  had  been slow with  some  ongoing  pain \nand discomfort. (TR at 30)  \nB. Claimant on Cross Examination by Ms. McKinney \nMr. Love confirmed that the present matter was his first experience with a workers’ \ncompensation claim. (TR  at  31) He  also  confirmed  that  during  his  deposition  he  explained \nthat his stepfather Mr. Toby Crow is a workers’ compensation insurance adjuster. Mr. Crow, \nhe testified, told him that he needed to file this workers' compensation claim and helped him \nfill out the Form N he provided to the respondents. (TR at 32) \nThe  claimant  said  that  he  had  experienced  muscle  pain  similar  to  what  he  felt  in \nOctober before and that it was from “over-exertion” or “over-working.” (TR at 34)  Reviewing \nhis Form N, he acknowledged that his stepfather helped him in choosing to use the words \n“objective findings.” (TR at 35) \nMr. Love agreed that he was asked at the urgent care clinic whether his injury was \nwork-related  and  responded  that  it  was  not.  “You  still  told  them,  ‘it’s  not  a  workers’ \ncompensation claim,’ didn’t you?” “Yes, ma’am,” he said. (TR at 36-37) He also acknowledged \nthat at the time he mentioned possible “pleurisy,” and that he did not mention a neck or \nshoulder injury. \nHe  said  that  his  supervisor  was  aware  of  some  pain,  but  that  he  told  him  it  was \nsomething he could work through. Mr. Love testified that on the weekend before presenting \nat the emergency department, he “ate and hung out at the house, rested up, in hopes of \nreturning to work on Monday.” (TR at 38) He was staying with his brother at the time and \nhelping  with  his  brother's  six (6) young  children.  He  continued  helping  take  care  of  the \n\nJ. LOVE- H300483 \n7 \n \nchildren through the summer of 2023, saying that others would come to help, too, while he \nwas first recovering from surgery. (TR at 39)  \nRegarding his visit to the emergency department, the claimant acknowledged that the \nreport showed that he denied a fall or injury, but said, “[t]o clarify, that was meant as a – I \ncouldn’t pinpoint when – when it happened as far as, you know, I lifted this at this time on \nthis date.” When asked, “the stipulations are that you injured yourself on October 23\nrd\n, 2022. \nYou didn’t injury yourself on that day, did you?” he answered, “No, ma’am.” (TR at 42)  Mr. \nLove acknowledged that he did not mention hurting himself at work in the text messages he \nsent Casey Harness when he first missed work. (TR at 44) \nThe claimant agreed that his responses to written discovery provided a work history \nof no more than five (5) previous employers, but a more complete work history was discussed \nat his deposition, which accounted for more than twenty (20) jobs in fourteen (14) years of \nworking. (TR at 46) He acknowledged “over-working and aggravating” his back and neck at \nother  jobs  and  working  other  jobs  just  as  physically  demanding  as  his  work  with  the \nrespondent. (TR at 47) Mr. Love said that he mentioned “general groans and moans” about \npain on the jobsite and that Casey Harness told him to “take it easy” after he said that his \narm was bothering him at some point. (TR at 48) \nMr.  Love  recalled  his  deposition  testimony,  where  he  said  that  he  did  not  hurt  his \nback in a particular instance and further testified at the hearing that “there’s no defining \nmoment of injury to my knowledge as far as like I mentioned, for example, I was doing this \ntask on this day at this time.” (TR at 49) That discussion went on: \nQ:  ... we’re talking about your step dad and the conversations you had with your step \ndad and him educating you on what’s going on, and your answer starting with line 2 \n– what was your answer? \n \nA:  “It was probably a couple weeks after the initial injury. He told me that if I – you \nknow, I may end up – it may be long term, maybe it was something worse. It may be \nlong term. Maybe it was something worse. Maybe look into workers’ comp, to which I \n\nJ. LOVE- H300483 \n8 \n \ntold him that I didn’t think that it would be convincible. I didn’t, because there was \nno defining moment. There was no defining injury, and that’s where he informed me \n–\" \n \nQ:  And that’s where he talked about the gradual onset injury, right? \n \nA:  Yes, ma’am. \n \nQ:  But you told me these are your words, “No defining moment. No defining injury.” \nYou read those words correct? \n \nA:  Yes, ma’am. \n \nQ:  Ad you said those words in your deposition, right? \n \nA:  Correct. \n \nQ:  You had that conversation with your stepfather, right? \n \nA:  Correct. \n \nJudge:  And to be clear from the Prehearing Order, gradual onset [injury] is \nnot being argued. \n \n Ms. York:  It’s not. ... \n \nTR at 50-51. The respondents’ cross examination ended shortly thereafter. \n \nC.  Witness Casey Harness \nMr. Harness testified that he had worked for Reynolds Construction for eight (8) years \nand that he was a construction superintendent. (TR at 58) He recalled the claimant working \non a project at the Juvenile Justice Center in September and October of 2022. According to \nMr. Harness: \nWhat  I  know  about  Jason  getting  hurt  is  he  came  in  on  one  Monday \nmorning and told me that he had injured himself over the weekend. He said \nthat  he thought  that  he  had  pulled something  or  did  something. He told  me \nthat  he  had  been  hurt  previously  and  thought  that  he  had  just  re-pulled \nsomething and he said he wanted to go to the doctor about that. At that point, \nI allowed him to stay and work... He had been taking photos of the furniture... \nHe’s good at taking the pictures, going back and locating the pictures to that \nroom and making sure everything gets put back....  (TR at 60) \n \n\nJ. LOVE- H300483 \n9 \n \nHe believed that this was before the claimant went to urgent care and before he had \nbeen  seen  for  his  shoulder  pain. Mr.  Harness  recalled  asking  if  the  claimant  was  hurt  at \nwork, because he knew as the supervisor, that an accident form would need to be completed \nif so, and the claimant responded “no.” (TR at 61) Mr. Harness went on to say that he was \nfamiliar with the process for reporting workplace accidents. \nOn cross examination, Mr. Harness said that he did not specifically ask the claimant \nhow he hurt himself, but recalled Mr. Love saying that he had been helping his brother with \nmoving some tanks or bottles or something heavy of a similar sort. (TR at 62) \n D.  Witness James “J.T.” Tillman \n Mr. Tillman stated that he worked as a laborer for the respondent and that he had \nworked there for eight (8) years. (TR at 64) When asked about what happened to Mr. Love \nand the reason for the day’s proceedings, he said, “I know he was at his brother’s house \nworking, cutting trees and stuff. He come in that Monday or Tuesday and said his back was \nhurting.” (TR at 65-66) “He said, ‘I hurt my back there at my brother’s.’ You know, he come \nin  complaining  that  his  back was  hurting. He was working with  his  brother that weekend \nand stuff.” Mr. Tillman said he remembered the claimant working for a few days afterwards \nbefore not seeing him at work anymore.  \n On brief cross examination, Mr. Tillman testified that the claimant said his back and \nhis shoulder were hurting, but mostly his back. (TR at 67) \n E.  Witness Wes Brandon \n Mr.  Brandon  testified  that at  the  time  of  the  hearing he  had  worked  for  Reynolds \nConstruction for about sixteen (16) months and that while he did “all kinds of stuff,” he was \nclassified as a carpenter. (TR at 68)  He did not observe the claimant injuring himself at work, \nbut called him after Mr. Love had not been at work for some time. “I called him just to razz \nhim and asked him pretty much ‘Did you quit?’ or ‘What’s up?’ And he says, ‘No,’ he just \n\nJ. LOVE- H300483 \n10 \n \ninjured hisself [sic]. I asked him if he injured hisself [sic] while at work, because I was gonna \nmake fun of him because we were working together hanging drywall and he said, ‘No,’ he did \nnot injure hisself [sic] at work.” (TR at 69) \n F.  Respondent Michael Reynolds \n Mr. Reynolds testified that he is the president of Reynolds Construction, and that he \nwas indirectly aware of Mr. Love complaining about pain in late September or early October \nof 2022. Mr. Harness mentioned Mr. Love complaining of pain “in passing” and said “it was \nno big deal.” (TR at 72)  According to Mr. Reynolds, he and the claimant talked several times \nbefore  the  claimant  alleged  a  workplace  injury.  He  recalled,  “I  believe,  I  asked  him, \nspecifically, in my office, you know, ‘Is this a workers’ comp claim?  Do  we  need  to  move \nforward with this?’ And he said ‘No... he didn’t believe himself that he had a workers’ comp \nclaim.’” (TR  at  73) When they eventually spoke about Mr. Love’s claim, he recalled the \nclaimant thought that he experienced a strain from moving furniture. (TR at 74) \n The witness went on to explain that a formal report of an injury did not occur before \nthe Form N was presented, and that if an injury had been reported, company policy would \nhave triggered a First Report of Injury, possible treatment from Healthcare Plus, an accident \nreport form, and a post-accident drug screening. He said that every new hire is made aware \nof the company’s policies and signs a statement to that effect. (TR at 75-76) \n On cross examination, Mr. Reynolds said that he did not offer medical treatment or \npaperwork to the claimant when they first discussed his pain because “he said he didn’t have \na claim.” (TR at 77)  He confirmed receipt of the Form N in December of 2022 and concluded \nhis testimony shortly thereafter. (TR at 78) \nIV.  ADJUDICATION \n The  stipulated  facts are  outlined  above and  accepted  as  fact. It  is  settled  that  the \nCommission, with the benefit of being in the presence of the witnesses and observing their \n\nJ. LOVE- H300483 \n11 \n \ndemeanor, determines a witness’ credibility and the appropriate weight to accord their \nstatements.  See Wal-Mart  Stores,  Inc.  v.  VanWagner,  337  Ark.  443,  448,  990  S.W.2d  522 \n(1999).   \nA. The  Claimant  Failed  to  Prove  by  a  Preponderance  of  the  Evidence  that  he \nSustained a Compensable Injury \n \nWhether the claimant suffered a compensable injury is a threshold matter that must \nbe addressed before considering the merits of his various claims of entitlement based upon \nsuch a finding. Under Arkansas’s workers’ compensation laws, a worker has the burden of \nproving, by a preponderance of the evidence, that he sustained a compensable injury as the \nresult of a workplace incident. Ark. Code Ann. § 11-9-102(4)(E)(i). A compensable injury must \nbe established by medical evidence supported by objective findings. Ark. Code Ann. § 11-9-\n102(4)(D).  Objective  medical  findings  are  those  findings  that  cannot  come  under  the \nvoluntary control of the patient. Ark. Code Ann. § 11-9-102(16)(A)(i). Causation does not need \nto be established by objective findings when the objective medical evidence establishes that \nan injury exists and other nonmedical evidence shows that it is more likely than not that the \ninjury was caused by an incident in the workplace. Bean v. Reynolds Consumer Prods., 2022 \nArk.  App  276,  646  S.W.3d  655,  2022  Ark.  App.  LEXIS  276,  citing Wal-Mart  Stores, Inc.  v. \nVanWagner, supra. \nMr.  Love alleges  a  compensable  injury  occurred  by  specific  incident.  The  claimant \nmust establish four (4) factors by a preponderance of the evidence to prove a specific incident \ninjury: (1) that the injury arouse during the course of employment; (2) that the injury caused \nan  actual  harm  that  required  medical  attention;  (3)  that  objective  findings  support  the \nmedical evidence; and (4) that the injury was caused by a particular incident, identifiable in \ntime and place. See Cossey v. G. A. Thomas Racing Stable, 2009 Ark. App. 666,5, 344 S.W.3d \n684, 689. \n\nJ. LOVE- H300483 \n12 \n \n I find that Mr. Love fails to meet his burden for satisfying these factors. He has not \nshown  that  it  is  more  likely  than  not  that  he  suffered  an  injury  in  the  course  of  his \nemployment, nor has he shown (as he readily admits) that any particular incident caused an \ninjury. There is conflicting evidence, through testimony I have no reason to find not credible, \nas  to  exactly when and  how  Mr.  Love  injured his  neck,  back,  and shoulder. He  appears  to \nhave told others that he hurt himself working with his brother, with whom he was living at \nthe time, over a weekend, and there is testimony of more than one instance where he denied \na workplace injury. His lodging of the Form N and providing notice of his intent to pursue \nthis  claim  seems  to  have  been  at  the  urging  of  his  stepfather,  who  has  knowledge  of  the \nbenefits available through a workers’ compensation claim and who assisted Mr. Love in \ninitiating his claim. The available evidence, however, simply does not support a finding of a \ncompensable injury in this matter. \nB. Other Claims of Entitlement \n Because Mr. Love fails to meet his burden on a compensable injury, his related claims \nof entitlement must also fail. He is not entitled to TTD benefits or reasonable and necessary \nmedical treatment. His claim for an attorney’s fee, accordingly, also fails. \nV.  ORDER \n Consistent with the findings of fact and conclusions of law set forth above, this claim \nis DENIED and DISMISSED. \nSO ORDERED. \n \n________________________________ \n       JAYO. HOWE \n       ADMINISTRATIVE LAW JUDGE","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION AWCC FILE No H300483 JASON B. LOVE, EMPLOYEE CLAIMANT REYNOLDS CONTRUCTION COMPANY, INC., EMPLOYER RESPONDENT AMERICAN CASUALTY CO. OF READING, P.A.,/ GALLAGHER BASSETT, CARRIER/TPA RESPONDENT OPINION FILED 15 DECEMBER 2023 On hearing before Arkansas Workers’ Compens...","fetched_at":"2026-05-19T22:59:36.681Z","links":{"html":"/opinions/alj-H300483-2023-12-15","pdf":"https://labor.arkansas.gov/wp-content/uploads/LOVE_JASON_H300483_20231215.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}