{"id":"alj-H304058-2024-09-25","awcc_number":"H304058","decision_date":"2024-09-25","opinion_type":"alj","claimant_name":"Jonathan Mohler","employer_name":"Robert A. Young Iii (cross Creek Ranch LLC)","title":"MOHLER VS. ROBERT A. YOUNG III (CROSS CREEK RANCH LLC) AWCC# H304058 September 25, 2024","outcome":"granted","outcome_keywords":["granted:2"],"injury_keywords":["back","knee"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/MOHLER_JONATHAN_H304058_20240925.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"MOHLER_JONATHAN_H304058_20240925.pdf","text_length":38671,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO.  H304058 \n \nJONATHAN MOHLER, Employee                                                                  CLAIMANT \n \nROBERT A. YOUNG III (CROSS CREEK RANCH LLC),                        RESPONDENT \nEmployer                                                                                                \n \nMIDWEST INSURANCE COMPANY, Carrier                                          RESPONDENT                                                         \n \n \n \n OPINION FILED SEPTEMBER 25, 2024 \n \nHearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Fort Smith, \nSebastian County, Arkansas. \n \nClaimant represented by EDDIE H. WALKER, JR.,  Attorney, Fort Smith, Arkansas. \n \nRespondents represented by MICHAEL C. STILES, Attorney, Little Rock, Arkansas. \n \n \n STATEMENT OF THE CASE \n  \n On August 5, 2024, the above captioned claim came on for hearing at Fort Smith, \nArkansas.    A  pre-hearing  conference  was  conducted  on February  14,  2024, and  an \namended pre-hearing order was filed on June 19, 2024.  A copy of the pre-hearing order \nhas been marked as Commission’s Exhibit #1 and made a part of the record without \nobjection. \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\nMohler – H304058 \n2 \n \n 3.   Respondents have controverted this claim in its entirety. \n At the time of the hearing the parties agreed to stipulate that claimant is entitled to \npayment of compensation benefits at the maximum rate in effect for 2022 of $790.00 for \ntotal disability benefits and $593.00 for permanent partial disability benefits. \n At the pre-hearing conference the parties agreed to litigate the following issues: \n1.   Compensability of injury to claimant in the form of a tick bite on October 29,  \n2022.   Alternatively, compensability of injury due to the cumulative effect of tick bites that \nhe received during the course of his employment from January 1, 2022 until his condition \nbecame disabling in January of 2023. \n 2.    Related medical treatment. \n 3.    Temporary total disability benefits from January 15, 2023 through a date yet \nto be determined. \n 4.   Attorney’s fee. \n 5.   Notice. \nThe claimant contends he sustained a compensable injury on October 29, 2022 as \nthe result of a tick bite.  Although the Commission’s file shows a January 14, 2023 date \nof injury, said date was actually the date on which the claimant became disabled and his \nactual injury date should be October 29, 2022. In the alternative, claimant contends that \nif  his  condition  is  not  due  to  the  specific  tick  bite  of  October  29,  2022,  it  is  due  to  the \ncumulative effect of tick bites that he received during the course of his employment from \nJanuary  1,  2022  until  his  condition  became  disabling  in  January  of  2023.    Further, \nclaimant contends that his job duties exposed him to ticks at a much greater frequency \nthan members of the general public are exposed to ticks; therefore, even if his condition \n\nMohler – H304058 \n3 \n \nis determined to be an occupational disease it is still compensable in the same way that \nhistoplasmosis is still compensable for people who develop it as a result of working in the \npoultry industry.   Claimant contends he is entitled to temporary total disability benefits \nfrom  January  15,  2023  until  a  date  yet  to  be  determined  and  reasonably  necessary \nmedical  treatment.    In  addition,  claimant  contends  that  the  respondent  carrier  is  not \nentitled to any credit for payments that the respondent employer has made; rather, the \nclaimant should be ordered to reimburse the respondent employer to the extent that the \nclaimant is awarded temporary total disability benefits, minus attorney’s fees, during any \nperiod of time for which the respondent employer paid full wages while the claimant was \ntemporarily totally disabled.  Claimant contends his attorney is entitled to an appropriate \nattorney’s fee.  \nThe respondents contend the claimant did not sustain a compensable injury in the \nform  of  an  occupational  disease  while  employed  by  the  respondent  employer.    The \nrespondents  have  denied  and  controverted  this  claim  in  its  entirety.    Accordingly,  the \nrespondents have not and are not paying any benefits to or on behalf of the claimant for \nhis supposed occupational disease injury.  The claimant’s physical problems and need \nfor  medical  treatment,  if  any,  are  not  related  to  his  employment  with  the  respondent \nemployer.  Rather, the claimant’s physical problems and need for medical treatment, if \nany, stem from an unrelated and/or pre-existing condition.  Also, the respondents assert \nA.C.A. §11-9-601, as there is no causal connection between the claimant’s occupation \nfor  the  respondent  employer  and  the  alleged  occupational  disease.    Additionally,  no \ncompensation is owed “for any ordinary disease of life to which the general public is \nexposed.”  See A.C.A. §11-9-601(e)(3).  The respondents had no notice of the claimant’s \n\nMohler – H304058 \n4 \n \nalleged injury until January 16, 2023.  Accordingly, the respondents are not liable for any \nbenefits whatsoever prior to January 16, 2023.  Also, if it is determined the claimant is \nentitled  to  any  indemnity  benefits  with  regard  to  this  claim,  then  the  respondents  are \nentitled to a credit for the respondent carrier’s wage continuation payments to the claimant \nsubsequent to January 2023. \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  FINDINGS OF FACT & CONCLUSIONS OF LAW \n \n 1.   The stipulations agreed to by the parties at a pre-hearing conference conducted \non February 14, 2024 and contained in an amended pre-hearing order filed June 19, 2024 \nare hereby accepted as fact. \n 2.   Claimant’s claim for a compensation injury is an accidental injury, not an \noccupational disease. \n 3.     Claimant has met his burden of proving by a preponderance of the evidence \nthat  he  suffered  a  compensable  injury  in  the  form  of  a  tick  bite  resulting  in alpha-gal \nallergy. \n 4.        Respondent  is  liable  for  payment  of  all  reasonable  and  necessary  medical \ntreatment provided in connection with claimant’s compensable injury. \n 5.    Claimant has met his burden of proving by a preponderance of the evidence \nthat he is entitled to temporary total disability benefits beginning January 14, 2023 and \n\nMohler – H304058 \n \n5 \n \ncontinuing through a date yet to be determined. \n 6.    Pursuant to A.C.A. §11-9-807(b), respondent is entitled to a credit for wages \nclaimant was paid beginning January 14, 2023 and continuing through a date yet to be \ndetermined. \n 7.    Respondent has controverted claimant’s entitlement to indemnity benefits and \nis liable for payment of an attorney fee on those benefits. \n 8.    Claimant’s failure to provide notice prior to January 16, 2023 does not bar his \nentitlement to benefits.  A.C.A. §11-9-701(b)(1)(B). \n \n FACTUAL BACKGROUND \n Claimant is a 50-year-old man who began working for respondent at Cross Creek \nRanch in July 2020.  Cross Creek Ranch is owned by Robert Young III, former Chairman \nof the Board of ArcBest Corporation.  Young testified at his deposition that he is in the \ncattle  business;  buying steers  that  weigh 550-600  pounds,  grazing them  to  put  on \nadditional weight, and sending them to a feed lot.  His business operates under the name \nCross  Creek  Ranch  and  it  consists  of  over  1000  acres with 1400  head  of  cattle.    The \nranch is a mixture of pastures with grass and trees.   \n Young testified that he hired claimant as a ranch hand to tend cattle.  Claimant’s \nduties included giving vaccinations, debugging, and deflying.  He was also responsible \nfor  spraying  insecticides,  repairing fences,  building  fences, bailing hay,  brush  hogging, \nand putting out fertilizer.  Young testified that claimant was responsible for anything that \nneeded to be done on the ranch.   \n In order for claimant to accomplish his job tasks, he was provided with a home for \n\nMohler – H304058 \n \n6 \n \nhe and his family to live in on the ranch.  Accordingly to claimant’s wife, Courtney Mohler, \nthey moved into this home on July 26, 2020.   \n Claimant testified that while taking care of the cattle and livestock was his main \npriority, he had many other duties such as repairing fences.  Claimant testified that fences \nfrequently get damaged and it is important that repairs be made as soon as possible to \nprevent  the  cattle  from  getting  out  of  the  pasture.    Testimony  from  claimant, Courtney \nMohler, and Robert Young III is that ticks are prevalent on Cross Creek Ranch.  Courtney \ntestified that ticks are abundant and that she had received tick bites while living on the \nranch.  Claimant testified that ticks are “thick” on the ranch.  Likewise, Young testified that \nthere are ticks present on the ranch and that when his children were younger and they \nwould go to the ranch he and his wife would have to go over their children with a “fine-\ntooth comb” to make sure they had not been bitten by ticks. \n Claimant testified that he typically preformed tick checks at night before bedtime \nor showering.  On October 29, 2022, claimant was performing a tick check and discovered \na tick on the back side of his knee.  Admittedly, claimant did not recall the specific date \non his own.  However, he did remember that on the day the tick was found he had repaired \na fence and taken a picture of a nearby tree that had been rubbed on by a deer.  The \nphoto shows that it was taken on October 29, 2022.  Claimant also testified that he has \nbeen bitten multiple times by ticks while working on Cross Creek Ranch. \n Claimant  testified  that  before  October  2022  he  had  never  thrown  up  without \nwarning.  However, in early November 2022 he vomitted without warning while taking his \nkids  deer  hunting  on  the  ranch.    Courtney  Mohler  testified  that  she  began  noticing \nclaimant having new health issues in December 2022.  She testified that on the night of \n\nMohler – H304058 \n \n7 \n \ntheir daughter’s birthday she noticed that claimant’s face and eyes were swollen and that \nhis color was not normal.  She stated that claimant had difficulty eating that night and was \nnot able to participate in the birthday party. \n On the night of January 14, 2023, Courtney took claimant to the emergency room \ndue to uncontrollable vomiting; stomach pain; and irritation in the throat and esophagus.  \nClaimant was struggling to stay upright or get out of bed.  She testified that claimant had \nnever had these issues before October 2022. \n The  emergency  room  report  from  Washington  Regional  Medical  Center  dated \nJanuary 14, 2023 indicates that claimant’s complaints included dizziness, low blood \npressure, nausea, vomiting, and abdominal pain.  An EKG did not reveal a cause for the \nsymptoms; a CT of the abdomen showed no acute intra-abdominal pathology; and a chest \nx-ray showed no acute pathology.  Claimant was diagnosed with dizziness; nausea and \nvomiting;  and  abdominal  pain.    He  was  given  medication  for  nausea  and  instructed  to \nreceive follow-up care from his primary care physician. \n On  January  26,  2023,  claimant  was  seen  by  his  primary  care  physician,  Dr. \nJantzen Slater, who ordered various lab tests.   One of those lab tests was for alpha-gal.  \nIn a report dated February 7, 2023, Dr. Slater stated that the lab results were positive for \nalpha-gal, shrimp, and wheat.  Since that time claimant has continued to be treated by \nDr.  Slater  for  various  conditions;  including alpha-gal  syndrome. Alpha-gal  syndrome  is \ntriggered by tick bites. His treatment has primarily included the use of medications and \navoidance of various foods.  In addition to Dr. Slater, claimant has also been evaluated \nby Dr. Tina Merritt at the Allergy Asthma Clinic of Northwest Arkansas and by Dr. Scott \nLucchese,  neurologist.    Both  Drs.  Merritt  and  Lucchese  have  diagnosed  claimant  with \n\nMohler – H304058 \n \n8 \n \nalpha-gal allergy. \n Claimant has not worked for respondent since his initial emergency room visit on \nJanuary  14,  2023.    Respondent  has  continued  to  pay  claimant  his  regular  wages \n(including an increase) throughout this period of time.  Respondent has also continued to \nallow claimant and his family to live in the home on Cross Creek Ranch. \n Claimant has filed this claim contending that he suffered a compensable injury as \na result of the tick bite on October 29, 2022 which resulted in a diagnosis of alpha-gal \nsyndrome.  He requests payment of related medical treatment, temporary total disability \nbenefits, and a controverted attorney fee. \n \nADJUDICATION \n The first issue for consideration is whether claimant’s claim of an injury in the form \nof  a  tick  bite  and  the  subsequent  diagnosis  of  alpha-gal  syndrome  is  an  occupational \ndisease  or  an  accidental  injury.    Claimant  contends  that  it  is  an  occupational  disease.  \nOccupational disease injuries are governed by the provisions of A.C.A. §11-9-601 et seq.  \nA.C.A.  §11-9-601  does  not  define  the  distinction  between  “accidental  injury”  and \n“disease”, but a widely accepted distinction is that occupational diseases are generally \ngradual rather than sudden in onset.  Johnson v. Democrat Printing and Lithograph, 57 \nArk. App. 274, 944 S.W. 2d 138 (1997); Hancock v. Modern Indus. Laundry, 46 Ark. App. \n186, 878 S.W. 2d 416 (1994).   \n After  reviewing  the evidence  presented,  I do not  find that  claimant’s  injury  is \ngoverned by the occupational disease provisions of A.C.A. §11-9-601 et seq.  Alpha-gal \nsyndrome is: \n\nMohler – H304058 \n \n9 \n \n[A]n allergic reaction to a type of sugar community called \nalpha-gal.   It is found in the meat and organ meats of \nmammals, such as cows, pigs, and sheep.  It may also \n \nbe found in products that come from animals, such as \n  gelatin, medicines, medicine capsules, some milk \n  products, vaccines, and cosmetics.  (Washington \n  Regional Medical Center patient education materials, \n  Page 95 of Claimant’s Exhibit 1.) \n \n  \nThis same document indicates that alpha-gal syndrome causes an allergic reaction \nthat can be immediate or delayed for several hours, and range from mild to severe.  This \nmaterial states the cause of alpha-gal syndrome as follows: \n  This allergy is first triggered by a tick bite from a lone \n  star or blackleg tick.  These ticks bite animals, such \n  as cows, pigs, or sheep, and pick up the alpha-gal \n  sugar from their blood.  If this same tick bites you, it \n  may cause your body’s defense system (immune system) \n  to produce antibodies to alpha-gal and cause the allergic \n  reaction. \n \n \n Dr. Slater confirmed that claimant developed an alpha-gal allergy as a result of a \ntick bite in a letter dated August 17, 2023.  As respondent correctly points out in its brief, \nalpha-gal syndrome is not a disease but rather an allergy.  More importantly, claimant’s \ninitial contention is that he contracted alpha-gal syndrome through a tick bite that occurred \non October 29, 2022 as a result of a specific incident.  This would be a sudden onset and \nnot  a  gradual  onset.   [I  do  note  that  claimant  alternatively contends  that  he  suffered  a \ncompensable injury due to cumulative tick bites.  For reasons to be discussed, I find that \nhe  has proven  a  compensable  injury  as a  result  of  a  specific  incident.]     As previously \nnoted, occupational diseases are generally gradual in onset rather than sudden in onset.  \nJohnson, supra.    \n\nMohler – H304058 \n \n10 \n \n Based on the foregoing, I find that claimant’s claim is for an accidental injury rather \nthan an occupational disease.   \n As noted above, it is claimant’s initial contention that he contracted alpha-gal \nsyndrome as a result of a tick bite that occurred on October 29, 2022.  This is a claim for \na  specific  injury,  identifiable  by  time  and  place  of  occurrence. In  order  to  prove  a \ncompensable injury as the result of a specific incident that is identifiable by time and place \nof occurrence, a claimant must establish by a preponderance of the evidence (1) an injury \narising out of and in the course of employment; (2) the injury caused internal or external \nharm to the body which required medical services or resulted in disability or death; (3) \nmedical evidence supported by objective findings establishing an injury; and (4) the injury \nwas caused by a specific incident identifiable by time and place of occurrence.  Odd Jobs \nand More v. Reid, 2011 Ark. App. 450, 384 S.W. 3d 630. \n After reviewing the evidence in this case impartially, without giving the benefit of \nthe doubt to either party, I find that claimant has met his burden of proof.  First, I find that \nclaimant has proven by a preponderance of the evidence that his injury arose out of and \nin the course of his employment and that it was caused by a specific incident identifiable \nby time and place of occurrence.   \n As previously discussed, claimant testified that he typically performed tick checks \nat night before bedtime or showering.  Through a photo he had taken while repairing a \nfence  on  October  29,  2022,  claimant  was  able  to  establish  this  date  as  the  day  he \nremoved a tick from behind his knee area.  It was in early November, shortly after this tick \nbite, that claimant began to have issues of vomiting without warning. \n In  response  to  claimant’s  contention  and  testimony,  respondent  states  that \n\nMohler – H304058 \n \n11 \n \nclaimant cannot prove that he was bitten by a tick while in the course of his employment.  \nRespondent contends that claimant does not know what he was doing or where he was \nbitten by a tick; therefore, he cannot prove that he was performing “employment services”.   \n In its brief, respondent frequently refers to claimant as an “on call employee” who \nwas performing job duties during periods of the day, but was also engaged in personal \nactivities such as taking his children hunting on the ranch.  Respondent also notes that \nclaimant generally liked to end his workday at 3:00 p.m. and that he and another ranch \nhand would attempt to alternate weekends off.  Respondent contends that while claimant \nwas frequently engaged in employment services while on the ranch, he was also engaged \nin personal activities and at those times was not performing employment services.  Since \nhe  does  not  know  specifically  what  he  was  doing  when  he  was  bitten  by  the  tick, \nrespondent contends that claimant cannot meet his burden of proof. \n I find that claimant was a “resident employee” and that his claim for compensation \nbenefits  is  governed  by  the  Arkansas  Supreme  Court  decision  in Jivan  v.  Econ.  Inn  & \nSuites, 370 Ark. 414, 260 S.W. 3d 281 (2007).  In that case, Nimisha Jivan was employed \nas an assistant manager at the Economy Inn in Hope.  She and her husband, the manager \nof  the  Economy  Inn,  lived  in  a  room  provided  by  the  hotel  and  carried  out  their  job \nresponsibilities on the premises.  On February 17, 2003, Nimisha was off duty.  She was \nin the process of changing her clothes in the bathroom of her hotel room to go to the gym \nwhen a fire broke out.  Unfortunately, Nimisha died as a result of smoke inhalation. \n Nimisha’s husband and two minor children filed a workers’ compensation claim.  \nNotably, the parties stipulated that  Nimisha and her husband were provided a room at \nthe hotel in order to live on the premises and carry out their responsibilities.  The parties \n\nMohler – H304058 \n \n12 \n \nalso stipulated that on February 17, 2003, Nimisha was off duty and was in the bathroom \nof  her  hotel  room  changing  clothes  to  go  to  the  gym  to  exercise.    Finally,  the  parties \nstipulated that Nimisha and her husband were considered on-call to address any hotel \nrelated issues.    \n The question before the Court was whether Nimisha was performing “employment \nservices” at the time of her death.  The Court first noted that an employee is performing \nemployment  services  if  they  are  doing  something  that  is  generally  required  by  their \nemployer.  Wallace v. West Fraser, Inc., 365 Ark. 68, 225 S.W. 3d 361 (2006).  The Court \nthen discussed its prior decision in Deffenbaugh Indus. v. Angus, 313 Ark. 100, 852 S.W. \n2d 804 (1993).  Angus was injured when a mobile home where he resided on the premises \nof his employer was destroyed by a tornado.  The Court found that because Angus was \ncontinually on duty he qualified as a residential employee and “the entire period of his \npresence on the premises is deemed included in the course of employment.”  The Court \nalso  noted  that  under  the  doctrine  of  increased  risk,  injuries  are  compensable  if  the \nemployment exposed the employee to a greater degree of risk than other members of the \ngeneral public in the same vicinity.  Under this theory: \n  [T]he claimant must prove only that the conditions \n  of her employment, or the place where her employ- \n  ment required her to be, intensified the risk of injury \n  “due to extraordinary natural causes.” \n \n \n Deffenbaugh was decided before Act 796  of 1993 and the Jivan court noted that \nit did not preclude the application of the residential-employee rule.  The Court also noted \nthat any interpretation of a statute becomes part of the statute.  The Court then found the \nfollowing with respect to Nimisha: \n\nMohler – H304058 \n \n13 \n \n  Based upon these stipulated facts, Nimisha, like Angus  \n  in Deffenbaugh, resided on the employer’s premises \n  at the time of her fatal injury.  Employing an increased- \n  risk analysis, Nimisha was expected to reside on the \n  premises and, as a residential employee of the hotel, \n  the condition of living at the hotel “intensified the risk \n  of injury due to extraordinary natural causes.”  [citation \n  omitted.]  That is to say, her presence on the premises \n  during the fire exposed her to a greater degree of risk \n  than someone who did not live on the premises.  In \n  fact, the parties stipulated that Nimisha was on call \n  twenty-four hours per day, and while living on the \n  premises, she was to carry out her responsibilities \n  as an assistant manager of the hotel by being available \n  for work duties at all times.  Thus, Nimisha indirectly \n  advanced her employer’s interests, even while \n  remaining on the premises during the fire. \n \n \n I find that the decision in Jivan applies to this claimant.  Claimant was provided a \nhome on the ranch for he and his family to live in and was expected to be available twenty-\nfour hours per day.  Young specifically testified: \n  A I wanted him on the ranch.  Cattle lived there \n  24 hours a day and he is responsible for the cattle.  So \n  if a fence broke and they were out on a county highway, \n  he would be there to get them up and get them in. \n \n  Q So would it be correct to say that he was basically \n  a 24-hour-a-day employee? \n \n  A He was available 24 hours. \n \n      *** \n \n  Q Mr. Stiles asked about Mr. Mohler hunting on the \n  ranch property sometimes. Even if he is doing personal \n  hunting, if he is on the property, is he considered to be \n  on call as an employee?  I mean if something happened \n  on the ranch while he was hunting, would he be expected \n  to take care of it?  For example, if one of these bobcats \n  that we have been talking about attacked some of your \n  livestock,  would he be expected to intervene? \n\nMohler – H304058 \n \n14 \n \n \n  A Yes. \n \n  Q So if he is physically on the property, he is on \ncall as far as you are concerned? \n \nA He is supposed to act like an owner. \n \nQ That is within the scope of his and within the scope \nof your expectation as an employer for him to perform \nemployment services if he is on the property; is that right? \n \nA That is correct.   (Emphasis added.) \n \n \n Claimant’s living on the ranch exposed him to a greater risk than someone who \ndid not live on the premises.  In other words, claimant was not like most employees who \ngo to work and then go to their personal home; instead, he was required by his employer \nto live on the ranch and be available twenty-four hours a day.  This increased his risk to \nexposure of ticks which according to the testimony of the witnesses were prevalent on \nthe ranch.  Accordingly, even if claimant was bitten while performing an activity other than \nhis  normal  work  activity, his  risk  of  injury  was  greater  because  he  lived  on  the  ranch.  \nThus, claimant indirectly advanced his employer’s interest when he was bitten by a tick \non the ranch. \n I also find claimant’s testimony credible regarding his finding of the tick on October \n29, 2022, after spending a portion of the day repairing fencing.  Claimant testified that he \nwas able to relate the tick bite to that day because of a photo on his phone that he had \ntaken of a tree that day while repairing the fence. \n In its brief,  respondent  contends  that  claimant  did  not  save  the  tick  and  did  not \nhave  it  biopsied  for  alpha-gal.  It is not reasonable that a person in claimant’s position \n\nMohler – H304058 \n \n15 \n \nwould  save  a  tick for a  biopsy  in the  event  that  they  later become  sick  from  alpha-gal.  \nThere is no such requirement under the law.  Claimant is only required to meet his burden \nof proof by a preponderance of the evidence.  Based on a totality of the evidence, I find \nthat  claimant  has proven that  the  tick  bite of  October 29,  2022  arose  out of  and  in  the \ncourse of  his employment and  that  it  was  caused by a  specific  incident,  identifiable by \ntime and place of occurrence. \n I also find that claimant has proven that the tick bite caused internal harm to his \nbody  that  required  medical  services  or  resulted  in  disability  and  that  he  has  offered \nmedical evidence supported by objective findings establishing the injury.  When claimant \nbegan having uncontrolled vomiting he was taken to the emergency room on January 14, \n2023, and referred to his primary care physician, Dr. Slater.  Dr. Slater ordered various \nlab tests which included an alpha-gal panel which was positive for alpha-gal syndrome.  \nAs previously noted, alpha-gal is transmitted by tick bites. \n In a letter dated August 17, 2023, Dr. Slater stated that claimant developed alpha-\ngal as a result of being bitten by a tick at work.   \n  Unfortunately, during his work, he was bitten by a tick. \n  Subsequent medical evaluation and tests have confirmed \n  that Mr. Mohler has developed an alpha-gal allergy as a \n  direct result of the tick bite. \n \n \n Since his diagnosis claimant has continued to be treated for his symptoms by Dr. \nSlater  and  Dr.  Merritt.    The  positive  lab  test  for  alpha-gal  is  an  objective  finding \nestablishing  an  injury.    Therefore,  I  find  that  the  remaining  elements  of  compensability \nhave been proven. \n In  reaching  this  decision  I  note  that  respondent  has  offered  a  report  from  Dr. \n\nMohler – H304058 \n \n16 \n \nJoshua  Kennedy,  a  physician  at  UAMS  specializing  in  allergy  and  immunology.    Dr. \nKennedy acknowledges that claimant has tested positive for alpha-gal, but also opines \nthat other diagnoses for claimant’s complaints should be considered.  Based on his \nopinion,  respondent  contends  that  alpha-gal  syndrome  is  not  the  “major  cause”  of \nclaimant’s disability or need for medical treatment.   However, an employee is not required \nto prove that his compensable injury is the major cause for the need for treatment unless \nthe employee is seeking permanent benefits; when the employee has suffered a specific \ninjury and is seeking only medical benefits and temporary total disability, the major cause \nanalysis is not applicable and the employee need only show that the compensable injury \nwas a factor in the need for additional medical treatment.  Jackson v. O’Reilly Auto, Inc., \n2013 Ark. App. 755. \n In summary, I find that claimant has met his burden of proving by a preponderance \nof the evidence that he suffered a compensable injury in the form of a tick bite on October \n29, 2022, which resulted in alpha-gal syndrome. \n Having  proven  that  he  suffered  a  compensable  injury,  respondent  is  liable  for \npayment of all reasonable and necessary medical treatment provided in connection with \nclaimant’s alpha-gal syndrome.    \n The  next  issue  for  consideration involves claimant’s request for temporary total \ndisability benefits.  Claimant has not worked for respondent or any other employer since \ngoing to the emergency room on January 14, 2023.  Claimant’s injury is an unscheduled \ninjury; therefore, in order to be entitled to temporary total disability benefits, claimant has \nthe  burden  of  proving  by  a  preponderance  of  the  evidence  that  he  remains  within  his \nhealing  period  and  that  he  suffers  a  total  incapacity  to  earn  wages.   Arkansas  State \n\nMohler – H304058 \n \n17 \n \nHighway  &  Transportation  Department  v.  Breshears,  272  Ark.  244,  613  S.W.  2d  392 \n(1981).   \n I  find  that  claimant  has  met  his  burden  of  proof.    The  medical  evidence  clearly \nindicates that claimant remains within his healing period for his alpha-gal allergy as his \ntreating physicians attempt to treat claimant for his condition and resolve his symptoms.  \nBased upon the medical evidence I find that claimant remains within his healing period.   \n I also find that claimant has proven that he suffers a total incapacity to earn wages \nas a result of his compensable injury.  First, I note that claimant testified that he is currently \nunable to perform his work for respondent and has not been able to do so since January \n14, 2023.  I find claimant’s testimony to be credible.  Claimant presented as a credible \nwitness at the hearing and I find his testimony regarding his inability to work believable.  \nWith regard to claimant’s integrity, I note the testimony of Penny Ring, the office manager \nfor respondent.  On cross examination she was asked about claimant’s trustworthiness.   \n  Q Do you have an opinion about his trustworthiness? \n \n  A I don’t have any reason not to trust him.  He has been \n  an exemplary employee and full of integrity. \n \n   \n \n I also note that Dr. Slater has opined that claimant is incapable of working.  In his \nletter of August 17, 2023 he stated: \n  This [alpha-gal allergy as a result of a tick bite at work] is \n  thought to be at the root of his current symptoms which \n  have rendered him essentially incapacitated to his previous \n  and presumably any occupation. \n \n     *** \n  This condition poses a significant challenge to Mr. \n  Mohler’s quality of life and his ability to perform his \n\nMohler – H304058 \n \n18 \n \n  job effectively.  He now requires constant vigilance \n  and adjustments to his lifestyle to avoid potential \n  triggers. \n \n \n More recently, in a letter dated June 17, 2024, Dr. Slater stated: \n  I am writing on behalf of Jonathan Mohler who as you \n  know is undergoing medical treatment for a work-related \n  injury.  Although his treatment has improved his symptoms, \n  he remains unable to work due to his condition.   \n  (Emphasis added.) \n \n \n Based upon claimant’s testimony and the opinion of Dr. Slater, I find that claimant \nhas  proven  by  a  preponderance  of  the  evidence  that  he  has  been  temporarily  totally \ndisabled as a result of his compensable injury since January 14, 2023.   \n Although I have found that claimant is temporarily totally disabled as a result of his \ncompensable  injury, respondent  is  not  liable  for  payment  of  any  benefits at  this  time.  \nA.C.A. §11-9-807(b) states: \n If the injured employee receives full wages during \n disability, he or she shall not be entitled to compen- \nsation during the period. \n \n The  parties  agree  that  since  the  time  of  claimant’s  disability  respondent  has \ncontinued to pay him his full wages.  In addition, claimant has been permitted to continue \nliving in his home on the ranch and respondent has continued to pay for claimant’s \nvehicle, health insurance, and utilities.   \n Claimant contends that payment of his full wages does not entitle respondent to a \ncredit because the payment was not intended by the parties as an advance payment of \ncompensation.   In support of that contention, claimant cites Varnell v. Union Carbine, 29 \n\nMohler – H304058 \n \n19 \n \nArk. App. 185, 779 S.W. 2d 542 (1989).  However, most recently, the Arkansas Court of \nAppeals addressed A.C.A. §11-9-807 and this issue in Advanced Portable X-Ray, LLC v. \nParker, 2014 Ark. App. 548, 444 S.W. 3d 398.  In that decision the Court stated: \n  Each of the cases cited by the Commission in support \n  of its opinion are distinguishable from the present \n  appeal.  In both Lion Oil and Looney, supra, our  \n  supreme court was called to interpret what is now \n  codified at subsection(b), and as held in Looney, it \n  interpreted the statute to mean that excess wages \n  over the TTD rate are not to be credited to the employer. \n  Those cases do not stand for the proposition that when \n  an employer pays an employee “full wages” during a \n  period of disability, the employee is entitled to both  \n  full wages and TTD.  To construe the statute in that \n  manner would effectively void subsection(b). \n \n  To clarify, when an employer pays an employee “full \n  wages” during a period of disability and the employee \n  is subsequently awarded TTD benefits for that period, \n  the employer is entitled to a credit under subsection (b) \n  for the amounts paid to the employee that are commen- \n  surate with the employee’s TTD rate; the employer is \n  not, however, entitled to a credit for amounts paid in \n  excess of the TTD rate. \n \n \n Based  upon  the  decision  in Parker,  I  find  that  respondent  is  entitled  to  a  credit \npursuant to A.C.A. §11-9-807(b) for the amounts paid to claimant that are commensurate \nwith his temporary total disability rate; respondent is not entitled to a credit for amounts \npaid in excess of the temporary total disability rate. \n Finally,  I  find  that  respondent  has  controverted  claimant’s  entitlement  to \ncompensation benefits.  Claimant has been temporarily totally disabled since January 14, \n2023, and respondent is entitled to a credit for reasons discussed herein.  Therefore, at \nthis  point  no  indemnity  benefits  are  being  paid  to  the  claimant.    Since  no  benefits  are \n\nMohler – H304058 \n \n20 \n \nbeing paid to claimant, there are no indemnity benefits from which to withhold his 12 ½% \nportion  of  an  attorney  fee.    In  the  event  indemnity  benefits  are  paid  to  claimant  in  the \nfuture, claimant’s portion of the attorney fee should be withheld from those amounts and \nforwarded to Mr. Walker.  Respondent is liable for paying its portion of the attorney fee to \nMr.  Walker.    Although  it  has  been  given  a  credit  for  full  wages  paid  to  claimant,  those \nbenefits were controverted and have been awarded. \n The final issue for consideration involves notice.  Respondent contends that it did \nnot have notice of the claimant’s injury until January 16, 2023; therefore, it is not liable for \npayment of  any  benefits  prior  to  January  16,  2023.    As  previously discussed,  claimant \nsought medical treatment from the emergency room on January 14, 2023, at which time \nhe  was  diagnosed  with  dizziness;  nausea  and  vomiting;  and  abdominal  pain.    He  was \ngiven  medication  and  instructed  to  receive  follow-up  treatment  from  his  primary  care \nphysician.  This is the only treatment claimant received before January 16, 2023. \n When the claimant saw  his primary care physician on January 26, 2023, Dr. Slater \nordered various lab tests which included an alpha-gal panel.  It was only after this test \nreturned positive that it became apparent that claimant’s symptoms were related to a tick \nbite.  Pursuant to A.C.A. §11-9-701(b)(1)(B) failure to give notice does not bar a claim: \n  If the employee had no knowledge that the condition \n  or disease arose out of and in the course of the \n  employment.” \n \n \n I  find that  claimant  had  no  knowledge  that his  condition  or disease  arose out  of \nand in the course of his employment until after the lab results were performed and it was \ndetermined that the cause of claimant’s alpha-gal allergy was the result of a tick bite.  This \n\nMohler – H304058 \n \n21 \n \noccurred after January 16, 2023.  Therefore, claimant’s failure to provide notice before \nJanuary 16, 2023 is excused pursuant to A.C.A. §11-9-701(b)(1)(B). \n \nORDER \n Claimant’s claim for a compensable injury is a claim for an accidental injury, not \nan  occupational  disease.    I  find  that  claimant  has  met  his  burden  of  proving  by  a \npreponderance of the evidence that he suffered a compensable injury in the form of a tick \nbite which resulted in alpha-gal syndrome on October 29, 2022.  Respondent is liable for \npayment of all reasonable and necessary medical treatment provided in connection with \nclaimant’s compensable injury.  Claimant is entitled to temporary total disability benefits \nbeginning  January  14,  2023  and  continuing  through  a  date  yet  to  be  determined.  \nBecause respondent has continued to pay claimant his full wages, respondent is entitled \nto a credit for those full wages pursuant to A.C.A. §11-9-807(b).  While claimant is not \nrequired to pay his portion of an attorney fee to Mr. Walker, respondent has controverted \nclaimant’s entitlement to indemnity benefits and as such is liable for payment of an \nappropriate fee. \n All sums herein accrued are payable in a lump sum and without discount. \n Respondent is liable for payment of the court reporter’s charges for preparation of \nthe hearing transcript in the amount of $1,140.25. \n IT IS SO ORDERED. \n \n      _____________________________________ \n       GREGORY K. STEWART \n       ADMINISTRATIVE LAW JUDGE","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H304058 JONATHAN MOHLER, Employee CLAIMANT ROBERT A. YOUNG III (CROSS CREEK RANCH LLC), RESPONDENT Employer MIDWEST INSURANCE COMPANY, Carrier RESPONDENT OPINION FILED SEPTEMBER 25, 2024 Hearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Fort Smi...","fetched_at":"2026-05-19T22:49:28.717Z","links":{"html":"/opinions/alj-H304058-2024-09-25","pdf":"https://labor.arkansas.gov/wp-content/uploads/MOHLER_JONATHAN_H304058_20240925.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}