BEFORE THE ARKANSAS WORKERS COMPENSATION COMMISSION CLAIM NO. G CATHERINE WILSON, EMPLOYEE LIBERTY MUTUAL FIRE INSURANCE,

Transcription

1 BEFORE THE ARKANSAS WORKERS COMPENSATION COMMISSION CLAIM NO. G CATHERINE WILSON, EMPLOYEE ARKANSAS HIGHWAY AND TRANSPORTATION DEPARTMENT, EMPLOYER LIBERTY MUTUAL FIRE INSURANCE, INSURANCE CARRIER CLAIMANT RESPONDENT RESPONDENT OPINION FILED SEPTEMBER 12, 2016 A hearing was held before ADMINISTRATIVE LAW JUDGE CHANDRA L. BLACK, in El Dorado, Union County, Arkansas. The claimant was represented by Mr. Kenneth A. Olsen, Attorney at Law, Bryant, Arkansas. The respondents were represented by Robert Montgomery, Attorney at Law, Little Rock, Arkansas. STATEMENT OF THE CASE A hearing was held in the above-styled claim on June 21, 2016, in El Dorado, Arkansas. A Prehearing Order was previously entered in this case on May 3, The following stipulations were submitted by the parties, either pursuant to the Prehearing Order, or at the time of the hearing. I hereby accept the following stipulations: 1. The Arkansas Workers Compensation Commission has jurisdiction of the within claim. 2. The employee-employer-insurance carrier relationship existed at all relevant times, including October 20, The claimant sustained a compensable right knee injury 1

2 on that date. 4. The claimant s average weekly wage at the time of her compensable injury was $ Dr. Pearce assessed the claimant with a 2% impairment rating for her lower extremity. 6. This rating has been accepted and paid by the respondent insurance-carrier. 7. The claimant obtained a Change of Physician Order to treat with Dr. Dewayne Daniels. 8. All issues not litigated herein are reserved under the Arkansas Workers Compensation Act. 9. This claim for additional benefits has been controverted in its entirety. By agreement of the parties, the issues to be litigated at the hearing were as follows: 1. Whether claimant is entitled to temporary total disability from December 8, 2015 and continuing to date yet to be determined. 2. Whether the claimant is entitled to additional medical treatment, including a total knee replacement. 3. Attorney s fee. The claimant s and respondents contentions were set out in their respective Responsive Filings, and at the time of the hearing. Said stipulations are hereby incorporated herein by reference. 2

3 The documentary evidence submitted in this case consists of the hearing transcript of June 21, 2016, and the documents contained therein. The following witness testified at the hearing: the claimant. DISCUSSION The claimant, age 65 (01/22/51), sustained an admittedly compensable injury to her right knee on October 20, 2014, while working for the respondent-employer. She became employed by the Arkansas Highway and Transportation Department on February 28, According to the claimant, the Highway and Transportation Department terminated her employment with them, per a letter she received on Monday(June 21, 2016). Nevertheless, the claimant worked as a single axle truck driver. However, her employment duties included flagging, picking up trash, digging, throwing limbs and debris off the road, and other laborious job activities. All of these employment duties required the claimant to be on her feet during most of the workday, with the exception of her breaks. Regarding the claimant s missed days from work, while working for the Highway and Transportation Department, the claimant explained. Q. Did you miss any significant amount of time from work due to injury or illness during that seven years you were actively working? 3

4 A. No more than when I had my shoulder operated on, my rotary cuff replaced and this knee that I m having problems with. That s about it for missing time. Q. Are you speaking, could you clarify whether you re talking about a prior incident or this work incident when you say you missed work because of your knee? A. The work incident. Q. The one we re here today for a hearing on? A. Yes, sir. The claimant verified that she sustained an injury on October 20, 2014, to her right knee. She specifically denied that at that time she was missing any work due to her right knee. Nor was the claimant on any kind of limited work which restricted use of her right leg. The claimant denied ever having had an MRI of the right leg prior to her work-related injury. She admitted that in October 2013, she told Dr. William Daniel(not Dr. Dewayne Daniels) about problems with her leg. The claimant testified that he x-rayed her knee and gave her a shot in it. She agreed that this all probably occurred during a routine work physical. The claimant testified that Dr. Daniel was her family doctor, but now he is retired. She admitted that she probably had an injection in her knee in May of Under further questioning, the claimant explained: Q. What I m asking for is just your impressions of what your condition was at that time or during that time frame and how it affected your ability to work and do your daily stuff. A. Well, it didn t affect my work at all because I was at work every day. So it didn t affect it. I did everything I 4

5 had to do, flagged and all of that. Q. Did it affect your ability to do your personal chores and things around the house or hobbies or activities? A. No, sir. Q. He mentions in his records, so there must have been some issue going on with your right knee. What would you describe as far as mild, moderate, or severe the pain level you had during that time? A. It was like mild pain. It wasn t a everyday thing. It was just something that would come and go. The claimant attributes her mild knee pain to age. She admitted that she was regularly taking pain pills, as needed. According to the claimant, her pain would come and go. If the claimant had flagging duties, and was doing a lot of standing, she would take fours pills a day. However, she testified that the medication was being taken for her back. Regarding her work-related injury of October 20, 2014, she explained: A. Well, they was, they was unhappy and everything. And it was just one of those bad days where it was, my break was over and I was getting out of the truck and the guy was hollering talking about get out, get out, get out, you know. He was really in a bad mood that day and everything. So I was trying to get out with my water cooler and everything, and I missed my step, and I went straight down to the ground on my knee. I was in a patch truck if you all know what a patch truck is. Q. Let s, let me go through these one at a time. When you say you went down on your knee do you mean you literally hit the ground with your knee? A. I hit the ground. I didn t hit it with my knee. My leg went straight down and something popped. Q. So you didn t fall? 5

6 A. No. I didn t fall. Q. But you noticed a pop in your knee when your foot hit the ground? A. Right. Q. A patch truck, you described pretty well on your deposition as being something that looks like a dump truck, but it s not? A. Yes, sir. The claimant admitted that she reported the incident to management, Charlotte Qinsby(phonetic). She verified that she filled out a report, but did not request medical treatment at that time. The claimant s explanation for not seeking medical treatment was because she was hoping she would be all right. She further testified that she did not wish to miss any more time from work. In the following days, the claimant was able to continue her regular employment duties, which included flagging(traffic control). She verified that no sitting is allowed while performing these duties. The claimant admitted that her knee symptoms increased. According to the claimant, she had a throbbing pain, which has resulted in her not being able to drive. As a result, the claimant told Ms. Quinsby that she was going to see doctor. At that time, Ms. Quinsby instructed the claimant to see the company nurse for the scheduling of an appointment. The claimant contacted the nurse and an appointment was made for her on October 30, 2014, with Dr. Deluca. The claimant verified that this was not her choice of 6

7 physician. She admitted that she gave a history of a work injury to Dr. Deluca. After seven months, Dr. Deluca referred her to Dr. Dedman. She verified that she underwent X-rays, injections, physical therapy, and MRI s. However, the claimant testified that her symptoms did not go away. Her symptoms became unbearable, which made it hard for her to walk or even rest. Ultimately, the claimant was referred to Dr. Charles Pearce. She verified that she first saw Dr. Pearce on October 8, The claimant admitted that she had worked for the entire year, performing her regular employment duties. According to the claimant, she would take pain pills and keep moving. However, she essentially testified that the pain pills were for her back, but helped her knee symptoms. She also underwent physical therapy for twelve weeks. The claimant stated that the physical therapy made her symptoms worse. She admitted that she underwent surgery in the form of a meniscus repair, by Dr. Pearce. Following this surgery, the claimant essentially stated that her knee pain was in fact made worse. She verified that she did undergo physical therapy treatment for twelve weeks. The claimant has not operated a car or truck since November 2, 2015, because she had driving restrictions following her knee surgery. Her restrictions have not been lifted. According to the claimant, she is unable to sit or stand for very long. 7

8 She admitted that after her visit on December 7, 2015, with Dr. Pearce, wherein he indicated she had reached maximum medical improvement, he referred her to Dr. Newbern. She verified that although Dr. Newbern made some recommendations, the adjustor, Amanda would not allow her to treat with Dr. Newbern. The claimant obtained a Change of Physician Order(February 1, 2016) to treat with Dr. Dewayne Daniels, instead of Dr. Pearce. She underwent evaluation by Dr. Daniels, in January. Prior to this Order being entered, the claimant went for a medical visit with Daniels, and paid this expense out of her pocket. She got a second MRI after her surgery with Dr. Pearce. Dr. Daniels prescribed more therapy. He later scheduled her for a total knee replacement. She admitted that the respondents paid for her visit with Dr. Daniels after she obtained the Order. She was unsure if they paid for the MRI. Upon further questioning, the claimant testified that she requested to treat with Dr. Daniels, and Amanda allowed her to continue to see him for five visits. However, the treatment in the form of a knee replacement was denied, by Amanda. The claimant stated that she did not obtain this surgery in April(2016) because she did not have the money, and her group health insurance refused to pay. The claimant testified: Q. Why have you not gone back to work since the surgery of Dr. Pearce? 8

9 A. Because the Highway Department don t have light duties. Q. Now when he released you you were put on restrictions, correct? A. Yes, sir. Q. Do you know what those restrictions were? A. No driving, no standing too long, no sitting too long, and no climbing, lifting. Q. Did you understand those to be permanent or temporary restrictions? A. I don t know. I really don t know. Q. Did you talk to the Highway Department and try to go back to work within those restrictions? A. Yes, I did. Q. And were you notified whether those were available to you? A. They wasn t available. Q. And has any doctor ever released you to go back to regular duty? A. No, sir. Q. Are you still waiting to have your knee replacement? A. Yes, sir. Q. Now you walked in here with a cane today. How often do you use that cane? A. Every day, all day. She admitted that her cane, is self-prescribed. The claimant denied any relief of her symptoms since November. The claimant testified that she is tired of sleeping on the couch. She stated that she has not slept in a bed since November. The claimant 9

10 explained that she has cramps, spasms, and pain of the right knee. She testified that she gets only three hours of sleep at night. On cross-examination, the claimant admitted that she testified during her deposition of April 20, 2016, that she did not use her cane all the time. She agreed that she began using the cane all the time following April 20 th. The claimant admitted that she told doctors that she fell out of the truck. However, she admitted that she landed on her feet. The claimant testified regarding her visit with Dr. Daniel: Q. And the records seem to indicate that in October of 2012 you saw him and then again in October of A. Yes, sir. Q. So can we, would it be correct that the reports in the joint exhibit from Dr. Daniel for those months of October 2012 and 2013 those would be appointments you had for like a scheduled physical? A. Yes, sir. Q. When you would go in for these visits for your scheduled physicals would you tell the doctor basically how you were feeling, and things you were experiencing, and pains, and that kind of thing? A. Yes, sir. She admitted that she reported to Dr. Daniel some mild knee pain during these visits. The claimant admitted that in October of 2012, Dr. Daniel indicated that she had some degenerative joint disease in her right knee. The claimant admitted that she has been taking Hydrocodone for her knee pain since October of 2012 and during the time that she had her 2013 visit. She admitted that she 10

11 was taking pains pill from October 2012 through 2013 due to knee pain. The claimant testified: Q. And then we get to the report on page, beginning on page eight which is in May of This would be approximately six to seven months after your physical appointment you had in October of 2013, correct? A. Yes, sir. Q. I just want to ask you a few questions here. Now let me ask you. Can you recall were you continuing to have right knee pain from October of 2013 when you saw the doctor for your physical through May of the following year 2014? Were you still having some regular knee pain? A. Somewhat. Q. Describe for me what you mean by somewhat. A. It wasn t a every day thing. No maybe once a month or something like that. Q. Was it -- A. It was mild pain. It wasn t nothing you can run home and tell nobody about. Q. And I guess I m asking because on page eight now when you saw Dr., I think it s Dr. Daniel on May 6, 2014, at least under the history of your present illness section for that visit you just told me you had pain once a month, it wasn t all that bad, correct? A. Yes. She denied having reported in May of 2014 to Dr. Daniel that her knee pain was moderate to severe. Nor did the claimant recall telling Dr. Daniel that her knee pain was made worse by climbing stairs and prolonged sitting. Regarding the proposed surgery, the claimant testified: 11

12 Q. And the surgery that say Dr. Newbern and now Dr. Daniels are interested in performing that is a surgery to more or less give you a partial knee replacement. Is that your understanding? A. No. My understanding he s giving me a complete knee replacement. Q. A total knee replacement? A. Yes, sir. Q. The reason I m asking is Dr. Newbern on page 32 said he might recommend a partial knee replacement to relieve your pain. Do you recall that? A. Yes. That s what he said in that time. Q. And now Dr. Daniels wants to do a total knee replacement? A. Yes, sir. The claimant testified that she was told by her supervisor that they do not have any light duty work available. According to the claimant, this conversation took place after Dr. Pearce found her to be at maximum medical improvement(mmi), in December of A review of the medical evidence of record demonstrates that the claimant first sought emergency treatment for his compensable knee injury on October 30, 2014, under the care of Dr. Joseph Deluca. Injury This is an initial visit. The injury occurred on 10/20/2014. Symptoms related to the injury have worsened. The trauma occurred due to a fall while at work. The injury was work related. Mechanism of injury details: Patient states that she missed the step in the truck and fell. The patient has pain in the right knee which is described as aching. The injury is aggravated by movement, standing, and walking. Interventions the patient has tried have not proved any relief. The injury associated with decreased mobility, generalized weakness, 12

13 joint pain, and localized swelling. Additional information: Takes pain medication while working without problems (tolerates a lot of pain). * * * Assessment/Plan 1. Assessment: Right Knee injury (959.7), Symptomatic, right knee Patient Plan: Take tylenol [sic] as needed continue on pain medications as directed (use sparingly) ICE to knee as needed Return to clinic in 4-6 weeks Norco 10 script today see scanning 2. Assessment: Right shoulder pain (719.41), Symptomatic right shoulder Patient Plan: See scanned document On May 20, 2015, Dr. Bill Dedman wrote the following letter: Ms. Wilson is a 64 year old lady who comes in today continuing to have pain in her right knee. She states that she had an accident on 10/20/2014 where she stepped out of the truck and twisted her right knee. She was seen by Dr. Joe Deluca on 10/31/2014 for this injury. X-rays done at that time were consistent with degenerative arthritis. She was given some Mobic and Norco, and she is here stating that she never got any relief, continued to have discomfort in the knee with activity. Past medical history includes diagnosis of degenerative arthritis. She has also recently been evaluated by me in March of this year for bilateral shoulder pain and is presently seeing Dr. Pierce[sic] in Little Rock for chronic shoulder pain. She is in physical therapy. Additionally, she was seen earlier this year by Dr. Angtuaco at Little Rock Diagnostic Clinic for headaches. Past surgeries include right shoulder surgery. Present medications include Protonix and Simvastatin. She has no known drug allergies. 13

14 Review of symptoms includes pain in her right knee, intermittent headaches, chronic shoulder pain, and some neck pain. Physical exam reveals that she has a somewhat flattened affect. She is in no acute distress. She walks in without difficulty. The neck exam is normal. Upper extremity exam reveals some discomfort with rotational movement of her shoulders. The lower back exam reveals no tenderness to palpation. The right knee reveals discomfort with flexion and extension. There is no swelling noted. Tenderness is primarily laterally and is mild. Left knee exam is normal. Neurovascular status of the lower extremities is normal. X- rays of her knees which were done in October 2014 are reviewed and revealed moderate degenerative arthritis. My impression is degenerative arthritis with knee sprain; also chronic complaints including both shoulders, neck, and headaches. She is to take Tylenol Arthritis, two every eight hours as needed for pain. She will continue her present medications. She is given an injection with Kenalog 30mg, Lidocain 3 cc, into the right knee under sterile conditions with a lateral approach. She is instructed to continue regular work and follow up in three weeks. Thank you. Dr. Dedman wrote the following letter on August 14, 2015: Ms. Wilson is a 64 year old lady whom I am seeing for right knee pain. She states that when she had an accident on 10/20/14, she stepped off the truck step and twisted her right knee. She was seen by Dr. Joe Deluca on 10/24/14 for the injury. X-rays were consistent with degenerative arthritis. She was treated by him with anti-inflammatories and pain medication. She states that since that time she has continued to have pain and discomfort. I saw her on 5/20/15 for a similar complaint. I injected her right knee, and she had some improvement over the next few weeks. She did not return at her regular appointment time, and I am seeing her now. She has also been seen by Dr. Pierce for neck and shoulder injuries and is to see Dr. Schlesinger for further evaluation. Physical exam today reveals she has a flattened affect. 14

15 Weight is 174. BP 122/64. Respirations 18. She has no limp as she walks in. The left leg reveals no unusual discomfort. The right leg reveals some discomfort with flexion. Range of motion is minimally decreased. Drawer s sign is negative. There is no unusual tenderness medially or laterally. My impression is chronic knee pain, secondary to injury in The injection has not helped. Anti-inflammatories have not helped. She will have an MRI, and then she is referred to orthopedics for further evaluation of knee pain. She is released from my care. The claimant underwent initial evaluation by Dr. Charles Pearce, Jr., on October 8, In a medical note dated that same date. Dr. Pearce wrote, in relevant part: History The comprehensive history taken on 10/08/2015 was reviewed and is unchanged. Reason for evaluation: Right knee pain. Mrs. Wilson is a pleasant 64-year-old lady of treated in the past for a right shoulder rotator cuff tear and repair. She has been back to work but has been having trouble with her right knee. She apparently injured her knee at about a year or so ago while on the job. She says this happened when she was getting out of the truck and missed the second step and twisted her knee. Her pain is been symptomatic for quite some time. She had MRI scan done August 2015 that shows a lateral meniscal tear and some chondromalacia. She has had continued pain despite time, modification activities and medications. Pain at times severe. Pain is 8 on the pain scale of * * * Assessment Right knee lateral meniscal tear and possible mild chondromalacia. Plan 1. The patient is not at maximal medical improvement. 2. Continue regular work duties. 15

16 3. The patient understands potential risks, benefits, and complications to include, but not limited to, neurovascular injury, anesthetic risks, expected outcome, and rehabilitation. This will be for right knee arthroscopic partial lateral meniscectomy and possible chondroplasty. Dr. Pearce authored an Operative Report on November 2, 2015, after performing surgery on the claimant s right knee. PREOPERATIVE DIAGNOSIS: Right knee: 1. Lateral meniscal tear. 2. Possible chondromalacia. POSTOPERATIVE DIAGNOSIS: Right knee: 1. Complex tear of entire posterior horn and midbody and portion of anterior horn lateral meniscus. 2. Chondromalacia of posterolateral aspect of lateral tibial plateau with some areas of complete loss of cartilage and corresponding area of lateral femoral condyle. 3. Mild chondromalacia of femoral trochlea. OPERATION PROCEDURE: Right knee: 1. Partial lateral meniscectomy. 2. Chondroplasty of the lateral tibial plateau. The claimant saw Dr. Pearce for a follow-up visit on November 23, He noted that the claimant was post right knee partial lateral meniscectomy for a complex tear, also unfortunately in that compartment, she had chondral malacia, which had some grade 4 areas. At that time, the claimant complained of some pain and swelling. On December 7, 2015, the claimant saw Dr. Pearce for follow-up treatment of her right knee injury. He reported, in relevant part: History 16

17 The comprehensive history taken on 12/07/2015 was reviewed and is unchanged. Date of surgery November 2, Mrs. Wilson returns after right knee arthroscopic partial lateral meniscectomy for complex tear. Unfortunately, she also has grade 4 chondral changes in a wide area. She is still having pain not unexpected because of her underlying arthritis. Anti-inflammatories in the form of diclofenac have not been helpful. I suspect her only option may be joint replacement. However this is not because of the work injury. Chondral findings were preexistent in my opinion. Assessment Right knee post meniscectomy but with preexistent findings of advanced chondral malacia. Chondral malacia is not work injury related. Plan 1. The patient has reached maximal medical improvement as a pertains to her right knee arthroscopy. 2. The patient is limited in her activities due to preexisting underlying arthritic changes of her knee. I would recommend no standing or walking greater than 2 hours. No climbing. No lifting greater than 20 pounds. 3. The patient has sustained a 2% permanent partial impairment as a pertains to the lower exdtremity. This is 1% of the person as a whole. Dr. Pearce wrote the following letter To Whom it May Concern, on December 17, 2015: Mrs. Wilson is post right knee arthroscopy on November 2, 2015 and unfortunately was found to have a complex tear of her lateral meniscus and complete loss of cartilage in the lateral compartment consistent with chronic arthritis change. I last saw her in this office on December 7, 2015 and released her from my care as a pertains to the knee arthroscopy. She is at maximal medical improvement as a pertains to that procedure. However, because of ongoing pain due to pre-existing arthritis she was referred to Dr. Newbern and has an appointment on January 28, Knee replacement may be the only option for her, but would not be done because of a work injury. The arthritis changes are preexistent in my opinion. 17

18 The claimant underwent initial evaluation by Dr. David Newbern on January 28, Dr. Newbern reported, in relevant part: wrote: Assessment Advanced lateral osteoarthritis of the right knee that has failed conservative treatment measures. This has severely impacted the patient s function and quality of life. I think she is a good candidate for considering a right lateral partial knee replacement to relieve her pain. She is in agreement. Plan 1. She is provided today with our Knee Replacement Manual, which describes the nature of the surgery, the recovery process, the do s and don t s, as well as the risks and benefits, for further information. 2. We will start the planning process at this time. In an Office Note dated January 18, 2016, Dr. Dewayne Daniels Catherine Wilson comes back in followup regarding her right knee. She continues to demonstrate an effusion. She still walks with antalgia. She states she received a letter from her workmen s compensation carrier, told her to come in today. I have explained her I really do not need to see her until after an MRI is done. She understands that I will see her back after the MRI has been obtained on her right knee. On February 12, 2016, Dr. Daniels wrote in an office note: Catherine Wilson come in complaining of right knee pain and swelling. She had a missed step coming out of a truck while at work on November 20, She eventually was seen and operated on by Dr. Charles Pearce in November She continues to have difficulty with weightbearing on her patella. She likes to pray on her knees. She has a large effusion that continues to be present on her right knee. She was released to light duty with multiple restrictions and there is no light duty available at her place of employment, so she is not currently at work. Further history is available in her health information sheet, which I reviewed today. X- rays show some medial joint space narrowing, but no acute pathology. 18

19 Impression: Right knee effusion. Plan: Because of the extended nature of the her problem, I have recommended she get an MRI. I will see her back after that is done. We will develop plan based on MRI findings. ADJUDICATION An employer shall promptly provide for an injured employee such medical treatment as may be reasonably necessary in connection with the injury received by the employee. Ark. Code Ann (a). The claimant bears the burden of proving that she is entitled to additional medical treatment. Dalton v. Allen Eng'g Co., 66 Ark. App. 201, 989 S.W. 2d 543 (1999). What constitutes reasonably necessary medical treatment is a question of fact for the Commission. Wright Contracting Co. v. Randall, 12 Ark. App. 358, 676 S.W.2d 750 (1984); Air Compressor Equipment v. Sword, 69 Ark. App. 162, 11 S.W. 3d 1 (2000). The parties stipulated that the claimant sustained a compensable injury to her right on October 20, The respondents have paid some medical and indemnity benefits, but have now controverted the claim for additional medical benefits. Nonetheless, it appears that the claimant s compensable workrelated injury occurred as she was exiting her company dump truck. The evidence before me demonstrates that the claimant missed a step and landed on her feet. The claimant credibly testified that she heard a pop during this incident. Although the claimant promptly reported this incident, she waited a few days before seeking 19

20 medical services. However, her knee pain and other related symptoms increased. On October 30, 2014, the claimant underwent initial evaluation by the company physician, Dr. Deluca. X-rays were performed of the claimant s right knee, which revealed degenerative arthritis. At that time, Dr. Deluca assessed the claimant as having Symptomatic, right knee, for which he prescribed a mediation regimen. However, the claimant testified that her symptoms failed to improve, but she continued working. Therefore, on May 20, 2015, the claimant underwent evaluation by Dr. Dedman. His impression, among other things was degenerative arthritis with knee sprain. Dr. Dedman gave the claimant an injection, in the right knee and instructed her to take Tylenol Arthritis, every eight hours as needed. Despite this injection and anti-inflammatory medication, the claimant continued with ongoing symptoms of right knee. As a result, on August 14, 2015, Dr. Dedman ordered an MRI of the claimant s right knee and referred her to orthopedics for further evaluation of her knee pain. The claimant also continued working during this period of time. Apparently, an MRI was performed on the claimant s right knee, in August of 2015, which revealed a lateral meniscal tears and some chondromalacia. On October 8, 2015, the claimant underwent initial evaluation 20

21 by Dr. Pearce for right knee pain. The claimant reported to Dr. Pearce that her pain level was very severe at times. Dr. Pearce assessed the claimant with Right knee lateral meniscal tear and possible mild chondromalacia. Dr. Pearce performed surgery on the claimant s right knee on November 2, 2015, in the form of, 1. Partial lateral meniscectomy. 2. Chondroplasty of the lateral tibial plateau. On December 7, 2015, Dr. Pearce pronounced the claimant to be at maximum medical improvement despite her ongoing symptoms of severe knee pain. He assessed the claimant with a 2% permanent impairment rating to the lower extremity. The respondents accepted and paid this rating. However, Dr. Pearce opined that the claimant s continued pain was not unexpected due to her underlying pre-existing chondral malacia/arthritis, which is not related to her work injury. On January 28, 2016, the claimant s right knee was evaluated by Dr. Newbern. At that time, he assessed the claimant with advanced lateral osteoarthritis of the right knee. Because the claimant s right knee symptoms failed to resolve with prior treatment modalities, Dr. Newbern recommended that she was a good candidate for a right lateral partial knee replacement, to relieve her pain. Ultimately, the claimant came under the care of Dr. Daniels for her right knee pain. The parties stipulated that in February of 2016, the claimant obtained a Change of Physician Order to treat 21

22 with Daniels. On February 12, 2016, Dr. Daniels saw the claimant for a large effusion that continued to be present on right knee. He recommended the claimant undergo another MRI. During the hearing, the claimant admitted that she had reported some problems with right knee to her family physician. The claimant described her symptoms of the knee as being mild, which were relieved by the medication that she had been taking for her back. The record demonstrates that in May of 2014, the claimant complained to her primary care physician that her right knee pain was worsening. However, the claimant continued to work with her knee symptoms. The claimant activities of daily living were not adversely affected due to her pre-existing arthritis. Her testimony demonstrates that she did not miss any days from work due to her knee condition. At the time of her compensable injury of October 20, 2014, the claimant was 63 years of age. The claimant has performed laborious work all of her life. It is not unexpected that she would have musculoskeletal issues considering, her work experience, age, weight, and pre-existing arthritis. I found the claimant to be a credible witness. Her substantive testimony is corroborated by the medical evidence of record, particularly that part about her not having missed work due to her knee symptoms and that she complained primarily about her knee problems during physicals, with exception of one visit. Nevertheless, Dr. Pearce stated that the claimant s ongoing 22

23 problems are related to her pre-existing arthritis. However, I find that the claimant s recent injury exacerbated her preexisting arthritis. I am persuaded of this due to the twisting mechanism of the claimant s injury; her continuing severe/significant discomfort despite conservative treatment and surgical intervention, her inability to work due to her symptoms of the right knee; and the fact that she now continues to demonstrate an effusion and walks with antalgia. In Williams v. L & M Janitorial, Inc., 85 Ark. App.1, 145 S.W. 3d 383 (2004), the Arkansas Court of Appeals pointed out that in workers compensation law, an employer takes the employee as he finds him. Therefore, based on all of the foregoing, the testimony elicited from the claimant during the hearing, and there being absolutely no evidence of any subsequent trauma or new injury, I find that the claimant s compensable right knee injury of October 20, 2014, is at least a contributing factor in her need for a partial knee replacement. See Thomas v. Entergy Arkansas, Inc., Full Workers Compensation Commission, Opinion filed January 24, 2006 (F308759). Minimal weight has been attached to the December 7, 2015, opinion of Dr. Pearce due to all of the foregoing. As such, I find that the claimant has established by a preponderance of the evidence a causal connection between her October 20, 2014, accident and her need for continued medical treatment for her right knee, under the care of her authorized 23

24 treating physician, Dr. Daniels, including any diagnostic tests and/or surgery(partial to total knee replacement) required in order to relieve her current knee symptoms. I think it is noteworthy that although the claimant testified that Daniels recommended, and had her scheduled for a total right knee replacement surgery in April of 2014, there is absolutely no medical documentation of this. However, of note, Dr. Newbern has opined that the claimant should undergo a partial knee replacement surgery. Pursuant to Ark. Code Ann , the respondents are liable for the expense of the unpaid additional treatment of record and any recommended by treating physician, Dr, Daniels, including surgery in the form of a total knee replacement. B. Temporary Total Disability Although the respondents have paid some indemnity benefits, they have now controverted the claimant s entitlement to any benefits after December 7, As a result, the claimant contends that she is entitled to temporary total disability compensation from December 8, 2015 through to a date yet to be determined. An employee who has suffered a scheduled injury is to receive temporary total or temporary partial disability compensation during his healing period or until he returns to work, whichever occurs first. Wheeler Constr. Co. v. Armstrong, 73 Ark. App. 146, 41 S.W.3d 822 (2001). 24

25 The instant claimant sustained a compensable injury to his right knee on October 20, Initially for approximately a year after her compensable incident, the claimant treated conservatively with various doctors. Ultimately, Dr. Pearce performed surgery on the claimant s right knee in November of He placed the claimant at maximum medical improvement on December 7, At that point, Dr. Pearce essentially placed the claimant on light duty work restrictions. The medical evidence demonstrates that Dr. Pearce s work restrictions remain in place. The claimant s testimony establishes that she has not been unable to return to work since this time. Her testimony demonstrates that the Highway and Transportation Department does not have any work available within her restrictions. Despite conservative treatment and even surgical intervention, the claimant has continued with ongoing increased pain of the right knee. She continues with a large effusion and walks with antalgia, and has difficulty with weightbearing. As a result of her compensable injury of October of 2014, her life has been severely impacted, with respect to function and quality of life. The medical evidence and the claimant s testimony demonstrate that the claimant has remained within her healing period since the date of her compensable injury. The evidence shows that the claimant has not returned to work since her surgery in November of 2015, due to her compensable injury. Nor has the respondent- 25

26 employer provided any light-duty work within her restrictions. I find that the claimant proved by a preponderance of the evidence her entitlement to temporary total disability compensation from December 8, 2015, and continuing through and until a date yet to be determined. C. Attorney s Fee It is undisputed that the respondents have controverted this claim in its entirety. Therefore, the claimant s attorney is entitled to a controverted attorney s fee on all indemnity benefits awarded herein to the claimant, pursuant to Ark. Code Ann FINDINGS OF FACT AND CONCLUSIONS OF LAW On the basis of the record as a whole, I make the following findings of fact and conclusions of law in accordance with Ark. Code Ann The Arkansas Workers Compensation Commission has jurisdiction of the within claim. 2. The employee-employer-carrier relationship existed at all relevant times, including October 20, The above-mentioned stipulations are hereby accepted. 4. The claimant has established by a preponderance of the evidence her entitlement to all of the medical treatment of record for her right knee, and any future treatment as recommended by her treating physician, Dr. Pearce, including a total knee replacement. 26

27 5. The claimant proved by a preponderance of the evidence her entitlement to temporary total disability from December 8, 2015, and continuing to a date yet to be determined. 6. The claimant s attorney is entitled to the maximum statutory attorney s fee based on the controverted temporary total disability compensation awarded herein. AWARD The respondents are directed to pay benefits in accordance with the Findings of Fact and Conclusions of Law set forth herein this Opinion. Maximum attorney s fees are herein awarded to the claimant s attorney on the controverted indemnity benefits, pursuant to Arkansas Code Ann All benefits herein awarded which have heretofore accrued are payable in lump sum without discount. This award herein shall bear the maximum legal rate of interest until paid. IT IS SO ORDERED. CB/kw CHANDRA L. BLACK Administrative Law Judge 27