{"id":"alj-H401302-2024-07-16","awcc_number":"H401302","decision_date":"2024-07-16","opinion_type":"alj","claimant_name":"Sean Hogan","employer_name":null,"title":"HOGAN VS. KRAMER & COMPANY MECHANICALAWCC# H401302July 16, 2024","outcome":"granted","outcome_keywords":["granted:5"],"injury_keywords":["fracture","back","neck","wrist"],"pdf_url":"https://www.labor.arkansas.gov/wp-content/uploads/HOGAN_SEAN_H401302_20240716.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"HOGAN_SEAN_H401302_20240716.pdf","text_length":17603,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO.  H401302 \n \nSEAN P. HOGAN, Employee                                                                          CLAIMANT \n \nKRAMER & COMPANY MECHANICAL, Employer                                  RESPONDENT \n \nAMTRUST NORTH AMERICA, Carrier/TPA                                             RESPONDENT                                                                                                    \n \n \n OPINION FILED JULY 16, 2024 \n \nHearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Springdale, \nWashington County, Arkansas. \n \nClaimant represented by EVELYN E. BROOKS, Attorney, Fayetteville, Arkansas. \n \nRespondents represented by WILLIAM C. FRYE, Attorney, Little Rock, Arkansas. \n \n \n STATEMENT OF THE CASE \n  \n On June 19, 2024, the above captioned claim came on for hearing at Springdale, \nArkansas.  A pre-hearing conference was conducted on April 24, 2024 and a pre-hearing \norder was filed on that same date.  A copy of the pre-hearing order has been marked as \nCommission’s Exhibit #1 and made a part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1.   The Arkansas Workers’ Compensation Commission has jurisdiction of the \nwithin claim. \n 2.     The  employe/employer/carrier  relationship  existed  among  the  parties  on \nFebruary 8, 2024. \n 3.   The claimant was earning an average weekly wage of $1,350.00 which would \nentitle him to compensation at the weekly rates of $876.00 for total disability benefits and \n\nHogan – H401302 \n \n 2 \n$657.00 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’s head, left elbow, left forearm, and left \nhand on February 8, 2024. \n2.   Related medical. \n3.    Temporary total disability benefits from date last paid through April 11, 2024. \n4.    Attorney’s fee. \nAt the time of the hearing claimant noted that no compensation benefits had been  \npaid in this claim; therefore, he is requesting temporary total disability benefits from the \ndate of the injury through April 11, 2024, the date he returned to work for respondent. \n The claimant contends he suffered compensable injuries to his head, left elbow, \nleft forearm, and left hand on February 8, 2024.  He contends he is entitled to temporary \ntotal disability benefits, medical, and an attorney’s fee.  Claimant reserves all other issues. \n The respondents contend the claimant fell off a ladder on February 8, 2024.  He \nunderwent  a  drug  screen  that  confirmed  the  presence  of  THC  due  to  marijuana  use.  \nUnder A.C.A. §11-9-102, the claimant cannot overcome the presumption  that the injury \nwas caused by drug use.  The claimant did return to work on April 11, 2024 at regular \nduty.\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\nHogan – H401302 \n \n3 \n \n  FINDINGS OF FACT & CONCLUSIONS OF LAW \n \n 1.   The stipulations agreed to by the parties at a pre-hearing conference conducted \non April 24, 2024 and contained in a pre-hearing order filed that same date are hereby \naccepted as fact. \n 2.   Claimant has met his burden of proving by a preponderance of the evidence \nthat he suffered a compensable injury to his left upper extremity and his head on February \n8, 2024. \n 3.      Respondent  is  liable  for  payment  of  all  reasonable  and  necessary  medical \ntreatment provided in connection with claimant’s compensable injury. \n 4.    Claimant is entitled to temporary total disability benefits beginning February 9, \n2024 and continuing through April 10, 2024. \n 5.    Claimant’s attorney is entitled to a controverted attorney fee on all unpaid \nindemnity benefits. \n \n FACTUAL BACKGROUND \n Claimant is a 49-year-old man who began performing HVAC work for respondent \nin 2021.  On February 8, 2024, he was on a ladder working on a piece of return duct that \nwas going through a brick wall in a restaurant.  While performing this activity claimant fell \noff  his  ladder,  breaking  his  arm  and  hitting  his  head.    Claimant  testified  that  he \nmomentarily lost consciousness and upon wakening he was taken to the emergency room \nat Northwest Medical Center in Springdale by Matt, his supervisor.   \n At  the  emergency  room  claimant  underwent  a  procedure  to  set  his  broken  arm \nwhich was then placed in a splint.  The discharge diagnosis indicates that claimant was \n\nHogan – H401302 \n \n4 \n \ndiagnosed with a closed extra-articulated fracture of distal end of left radius; closed non-\ndisplaced fracture of the left frontal skull; closed traumatic minimally displaced fracture of \nthe distal end of the left ulna; lamina papyracea fracture; and nasal bone fracture.  While \nat the hospital claimant underwent a urine test which was positive for THC.   \n Claimant  subsequently  came  under  the  care  of  Dr.  Henley  who  recommended \nsurgery with metal hardware to treat claimant’s arm fracture.  This surgery was performed \nby  Dr.  Henley  on  February  22,  2024.    On  March  25,  2024,  Dr.  Henley  indicated  that \nclaimant could return to work without restrictions in 10 days and claimant returned to work \nfor respondent on April 11, 2024.   \n Claimant has filed this claim contending that he suffered a compensable injury to \nhis  head,  left  elbow,  left  forearm,  and  left  hand  on  February  8,  2024.    He  requests \npayment  of  medical  treatment,  temporary  total  disability  benefits,  and  a  controverted \nattorney fee. \n \nADJUDICATION \n Claimant contends that he suffered a compensable injury to his head, left elbow, \nleft forearm, and left hand when he fell off a ladder on February 8, 2024.  Claimant’s claim \nis for a 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 \n\nHogan – H401302 \n \n5 \n \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 While receiving medical treatment at the emergency room on February 8, claimant \nunderwent a urine drug screen test and according to the toxicology report the test was \npositive for THC (marijuana).  As a result, respondent contends that claimant’s claim for \ncompensation benefits is barred by the provisions set forth in A.C.A. §11-9-102(4)(B)(iv) \nwhich provides: \n   (B)  “Compensable injury” does not include: \n \n  .... \n \n   (iv)(a) Injury where the accident was substantially \n  occasioned by the use of alcohol, illegal drugs, or \n  prescription drugs used in contravention of physician’s \n  orders. \n \n   (b)  The presence of alcohol, illegal drugs, or \n  prescription drugs used in contravention of a physician’s \n  orders shall create a rebuttable presumption that the \n  injury or accident was substantially occasioned by the \n  use of alcohol, illegal drugs, or prescription drugs used \n  in contravention of physician’s orders.  \n \n   (c)  Every employee is deemed by his or her \n  performance of services to have impliedly consented \n  to reasonable and responsible testing by properly \n  trained medical or law enforcement personnel for the \n  presence of any of the aforementioned substances in \n  the employee’s body. \n \n   (d)  An employee shall not be entitled to compensa- \n  tion unless it is proved by a preponderance of the evidence \n  that the alcohol, illegal drugs, or prescription drugs utilized \n  in contravention of the physician’s orders did not substantially \n  occasion the injury or accident. \n \n \n It  is  undisputed  that  claimant  tested  positive  for  marijuana  metabolites  in  the \n\nHogan – H401302 \n \n6 \n \nemergency room immediately after his accident.  Therefore, a rebuttable presumption has \nbeen  created  pursuant  to  Arkansas  workers’  compensation  law  that  the  injury  was \nsubstantially  occasioned  by  the  use  of  illegal  drugs  or  prescription  drugs  used  in \ncontravention of a physician’s orders.  The burden of proof requires claimant to prove that \nthe accident was not substantially occasioned by the use of marijuana.   \n At  the  hearing  claimant  did  not  deny his use  of marijuana,  but  contends  that  he \nhas  a  medical  marijuana  card  which  he  uses  for  pain  associated  with  a  prior  accident \ninvolving his back, head, and neck.  Claimant testified that he only uses marijuana in the \nevening and normally takes only one or two puffs.  He testified that the marijuana does \nnot  intoxicate him,  and  that  when he  wakes  up  the  next  morning he  does  not  feel  any \neffects of the marijuana he smoked the night before. \n Also testifying at the hearing was Sherry King, claimant’s mother, who testified that \nshe and claimant lived together and that claimant normally takes one or two puffs in the \nevening some two or three days a week.  She also testified that she had not observed \nclaimant being intoxicated from marijuana.   \n Specifically, with respect to the fall on February 8, 2024, claimant testified that he \nprobably  smoked marijuana the night  before  his  fall.    He also  testified  that he  was not \naffected by marijuana on the date of the accident and that he did not use marijuana in the \nmorning before going to work and has never used it on the job.   \n In support of his contention that the injury was not substantially occasioned by his \nuse of marijuana, claimant has offered the testimony of Bryan Mendoza who also works \nfor  respondent  as  an  HVAC  technician.    Mendoza  testified  that  on  February  8  he  had \nbeen working in close proximity with claimant for five or six hours before claimant fell from \n\nHogan – H401302 \n \n7 \n \nthe  ladder.   Mendoza  testified  that  he  was  working  within  a  couple  of  feet  of  claimant \nduring this period of time and that he did not notice anything unusual about claimant’s \nbehavior or think that claimant was engaging in risky behavior.  Mendoza testified that he \ndid not see the claimant fall, but did see claimant as he was falling. \n Also testifying at the hearing was Michael Kramer.  Kramer and his wife are co-\nowners of the respondent.  Kramer testified that while on a ladder you were not supposed \nto lean from one side to the other more than two or three feet and that you are supposed \nto keep your body within the frame of the ladder itself and if you cannot reach something \nyou are supposed to move the ladder.  Nevertheless, Kramer also admitted that at times \nhe  had  used  poor  judgement  and  had  simply  gotten  lucky  with  respect  to  falling  off  a \nladder: \n  You know, I was blessed with pretty good balance, I \n  guess, so I always kind of knew I had that, but you know \n  you take that for granted.  But I would say probably \n  every once in a while, anyone who is good at their job \n  has probably cheated it.  I am one of the fortunate ones \n  that has never gotten hurt from it.  But like I said, I am \n  sure I have cheated it myself.   \n \n     *** \n \n   THE COURT:  You said you had cheated, but got \n  lucky in the past.  What you meant was you leaned out \n  further than you really should have, but hadn’t fallen over? \n \nA.      Yes.  And I mean I have never even come close. \nBut, yes, I have.  I mean I am from the field. \n \n  \n Based  upon  the  foregoing  evidence,  I  find  that  claimant  has  overcome  the \npresumption  that  his  injury  was  substantially  occasioned  by  the  use  of  marijuana.    As \npreviously noted, claimant testified that he only took one or two puffs of marijuana at night \n\nHogan – H401302 \n \n8 \n \nfor pain.  He testified that this did not cause him to become intoxicated and that he did \nnot feel any effects of marijuana the following morning.  Likewise, claimant’s mother also \ntestified that claimant only took one or two puffs per evening, and that this occurred only \ntwo or three evenings per week. With respect to February 8 in particular, claimant testified \nthat while he had probably smoked marijuana the night before his fall, he also testified \nthat he was not affected by it on the date of the accident and that he had not used it in \nthe morning and had never used it on the job.  More importantly, Bryan Mendoza, a co-\nworker of the claimant who worked in close proximity with claimant for some five to six \nhours  that  day  testified  that  he  did  not  notice  anything unusual about the claimant’s \nbehavior or notice that claimant was engaging in risky behavior.  Finally, even according \nto Michael Kramer, one of the co-owners of the respondent, he has been lucky in the past \nin cheating while leaning out over a ladder but fortunately had not been hurt.  Based on \nthe foregoing evidence, particularly the testimony of the claimant, his mother, Mendoza, \nand Kramer, whose testimony I find to be credible, I find that claimant has rebutted the \npresumption  that  his  injury  or accident  was  substantially  occasioned  by  the  use  of \nmarijuana.  Therefore, it is not a bar to his claim. \n I  do  find  that  claimant  has  satisfied  the  remaining  elements  of  compensability.  \nSpecifically, I find that claimant has met his burden of proving that his injury arose out of \nand in the course of his employment with respondent and that it was caused by a specific \nincident identifiable by time and place of occurrence.  Here, there is no question that while \nperforming HVAC work for the respondent claimant fell off a ladder on February 8, 2024.  \nI also find that claimant’s injury caused internal harm to his body that required medical \nservices or resulted in disability and that he has offered medical evidence supported by \n\nHogan – H401302 \n \n9 \n \nobjective findings.  Testing at the emergency room in the form of a CT scan of claimant’s \nbrain and head revealed a fracture and bruising to claimant’s forehead was noted as well \nas  blood  from  his  nose.    Finally,  radiographic  testing  revealed  a  fractured  left  forearm \nwhich  resulted  in  the  arm  being  set  and  placed  in  a  sling.    Claimant  subsequently \nunderwent surgery by Dr. Henley to repair the arm fracture with the installation of metal \nhardware.  This surgery occurred on February 22, 2024. \n Accordingly, I find that claimant has met his burden of proving by a preponderance \nof the evidence that he suffered a compensable injury to his left upper extremity including \nhis forearm, wrist, and hand as well as to his head on February 8. \n Respondent  is  liable  for  payment  of  all  reasonable  and  necessary  medical \ntreatment provided in connection with claimant’s compensable injury. \n The final issue for consideration involves claimant’s request for temporary total \ndisability benefits.  The injury to claimant’s left arm is a scheduled injury.  An employee \nwho  has  suffered  a  scheduled  injury  is  entitled  to  receive  temporary  total  disability \nbenefits during their healing period or until they return to work regardless of whether they \nare  totally  incapacitated  from  earning  wages.   Wheeler  Construction  Company  v. \nArmstrong, 73 Ark. App. 146, 41 S.W. 3d 822 (2001).  Here, claimant did not return to \nwork the day after his fall and did not return to work for respondent until April 11, 2024, \nafter  he was  released  by  Dr.  Henley.    Accordingly,  I  find  that  claimant  is  entitled  to \ntemporary  total  disability  benefits  beginning  February  9,  2024,  and  continuing  through \nApril 10, 2024. \nAWARD \n Claimant has met his burden of proving by a preponderance of the evidence that \n\nHogan – H401302 \n \n10 \n \nhe suffered a compensable injury to his left upper extremity including his forearm, wrist, \nand hand.  He also suffered a compensable injury to his head.  Respondent is liable for \npayment of all reasonable and necessary medical treatment provided in connection with \nclaimant’s compensable injuries.  Claimant is entitled to temporary total disability benefits \nbeginning February 9, 2024 and continuing through April 10, 2024. \nPursuant to A.C.A. §11-9-715(a)(1)(B), claimant’s attorney is entitled to an attorney \nfee  in  the  amount  of  25%  of  the  compensation  for  indemnity  benefits  payable  to  the \nclaimant.   Thus, claimant’s attorney is entitled to a 25% attorney fee based upon the \nindemnity benefits awarded.   This fee is to be paid one-half by the carrier and one-half \nby  the  claimant.      Also  pursuant  to  A.C.A.  §11-9-715(a)(1)(B),  an  attorney  fee  is  not \nawarded on medical benefits. \nRespondent is liable for payment of the court reporter’s charges for preparation of \nthe hearing transcript in the amount of $532.45. \nAll sums herein accrued are payable in a lump sum and without discount. \nIT IS SO ORDERED. \n \n    ________________________________________ \n     GREGORY K. STEWART \n     ADMINISTRATIVE LAW JUDGE","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H401302 SEAN P. HOGAN, Employee CLAIMANT KRAMER & COMPANY MECHANICAL, Employer RESPONDENT AMTRUST NORTH AMERICA, Carrier/TPA RESPONDENT OPINION FILED JULY 16, 2024 Hearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Springdale, Washington County, ...","fetched_at":"2026-05-19T22:51:26.685Z","links":{"html":"/opinions/alj-H401302-2024-07-16","pdf":"https://www.labor.arkansas.gov/wp-content/uploads/HOGAN_SEAN_H401302_20240716.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}