BEFORE THE ARKANSAS WORKERS COMPENSATION COMMISSION CLAIM NO. G (06/05/2013) TERRY L. HANEY, EMPLOYEE CLAIMANT COMFORT INN, EMPLOYER RESPONDENT

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1 BEFORE THE ARKANSAS WORKERS COMPENSATION COMMISSION CLAIM NO. G (06/05/2013) TERRY L. HANEY, EMPLOYEE CLAIMANT COMFORT INN, EMPLOYER RESPONDENT CONTINENTAL WESTERN INS. CO., CARRIER RESPONDENT OPINION FILE JUNE 25, 2015 Hearing before ADMINISTRATIVE LAW JUDGE ANDREW L. BLOOD, on April 23, 2015, at Pine Bluff, Jefferson County, Arkansas. Claimant pro se. Respondents represented by the HONORABLE KEVIN J. STATEN, Attorney at Law, Little Rock, Arkansas. STATEMENT OF THE CASE A hearing was conducted in the above styled claim to determine the claimant s entitlement to additional workers compensation benefits. On March 16, 2015, a pre-hearing conference was conducted in this claim, from which a Pre-hearing Order of the same date was filed. The Pre-hearing Order reflects stipulations entered by the parties, the issues to be addressed during the course of the hearing, and the contentions of the parties relative to the afore. The Pre-hearing Order is herein designated a part of the record as Commission Exhibit #1. The testimony of Terry L. Haney coupled with medical reports and other documentary comprise the record in this claim.

2 DISCUSSION Terry Lee Haney, the claimant, with a date of birth of September 7, 1961, is a high school graduate. In describing his work history, the claimant s testimony reflects: Sir, mostly, it s been physical, skilled labor, but I am a skilled carpenter, ironworker, basically, maintenance work as a carpenter and that sort of - - that sort of work? (sic) (T ). The claimant commenced his employment with respondent-employer in Regarding the afore, the claimant testified: I was maintenance tech. I was, basically, in charge of all the make-readies and the work orders that could come in on a daily basis. Just overall painting, fixing damages to the walls, taking out the trash, pool maintenance, keeping the pool clean, and the area tidy, the parking lots clean and clean up from debris and whathave-you. Just overall everything, carpet shampooing, and that s pretty much it. (T. 16). The parties stipulated that the claimant suffered an injury to his right knee on June 5, As to any injury to his right knee prior to June 5, 2013, the claimant offered: No, sir, I had not. I mean, other than just - - well, I mean, before that, I had knee surgery- - (T. 16). The claimant elaborated on the prior right knee surgery of December 2010: Yes, sir. I was working at Modeling Contractors Bridge Construction and I had injured that knee, and I had outpatient surgery. It was, basically, minor surgery to remove some broken cartilage under the knee cap? (sic) (T. 16). When questioned regarding the length of time he was off work as a result of the prior right complaints, the claimant offered: I was - - I was ambulatory by five months. I was getting better. I was beginning to walk without crutches within about five months. (T. 17). 2

3 The claimant asserts that he was not having any difficulty with the right knee, which he described as fully healed, at the time of his employment by respondent. The claimant described the mechanics of the June 5, 2013, work-related right knee injury: Yes, sir. I was getting the pool ready to be vacuumed and I was dragging up the hoses and a part of the pool system didn t work. There s a vacuum system that was clogged up, it wouldn t work; so, I was having to pull out hoses and put them on the skimmer and it would create a suction and I was able to vacuum the pool that way. The Comfort Inn is built on somewhat of a marsh. It s right across the street from the Pine s Mall, and it s - - right behind the Comfort Inn, it s always wet. It s like a wet land, and frogs and bugs, it s just a - - it s a daily game of trying to keep them out of the pool, you know, and it - - I wasn t very successful at it. I tripped over the hose that I d pull out. And, basically, landed on my right knee. (T ). The claimant testified that he reported the accident to his supervisor, Mr. Avi Patel, the owner of the business. The testimony of the claimant reflects that Mr. Patel actually found him laying on the ground: Within about three to five minutes - - about three minutes, I d say, and I was in a lot of pain and I - - and I asked the man if he could take me to a doctor, and he said - - at that time, he said, They need you over across the street at the Holiday Inn. I was working at both places simultaneously. And I asked him to fill out an accident report and send me to a doctor, because I mean, I had a hard time standing up and he said, Well, I ll get back with you on that. But - - (T. 18). The claimant testified that he first received medical treatment in connection with the June 5, 2013, right knee injury, on June 13, 2013, at Healthcare Plus. The claimant offered that because respondent would not take him to the doctor he paid for the afore treatment himself. The 3

4 claimant testified that he did not work between June 5, 2013, and June 13, 2013: Well, the doctor - - when I saw him on the 13 th, he laid me off on the 13 th, which was that day, it was a Thursday, until Sunday and told me I could return to work on the 17 th. But the reasoning behind that, sir, was that he did an X-ray while I was there and he said- - * * * And so, they told me I could return to work the next day on the 17 th, which was Monday, but with restrictions. Just do whatever you re allowed to do, and again, I - - (T ). The claimant testified that because he was in so much pain he did not go to work on Monday, June 17, 2013, and so notified his employer. The claimant testified that he returned to work on June 23, 2013, and worked until June 26, On June 25, 2013, the claimant hurt his left knee in his employment at Holiday Inn, which was settled by Joint Petition. The claimant asserts that he continued to experience symptoms in his right knee, and remained off work after June 26, The claimant maintains that he has not worked in two years or twenty-two months. (T. 15). The claimant was involved in a motor vehicle accident in April 2014, for which he came under the treatment of Dr. William Rutledge: Sir, in April of 2014, I was struck by a - - it was a automobile, pedestrian accident on the Martha Mitchell Expressway. I was riding in a van, we were pulled over in the median. We had a trailer behind us, and we had pulled over to check the tire on the trailer. At that time, I had sat down on the fender well and was talking to the person I was with, and I happened to look up and right before impact, the man had lost consciousness and hit the trailer I was sitting on. I had enough time to stand up and push him out of the way and the trailer, when he hit the trailer, the trailer jumped up in the air and hit me and knocked me in the air, and then, about fifteen feet down an embankment. At that point, he hit 4

5 the van, and then, it spun out in front of the van close to where I was at down in the embankment. (T. 22). The claimant described the symptoms he experienced in the right knee during the period between June 2013 and April 2014: Well, my knee would just pop out of place and it would cause me to fall down; I d have to catch the ground. Sometimes it would lock in place; especially, the first thing when I would wake up, my knee would be in a locked position, whatever position it was, then, while I was, you know, sleeping. And it s just constant pain underneath, and it - - it - - around the whole perimeter of my knee, it was just constant all the way around, and was a lot of swelling at first, it was a lot of bruising, and there was also swelling on the inside according to Dr. Alexander. (T. 23). Initially, the claimant testified that he was seen by Dr. Alexander at Healthcare Plus one (1) time during which he was provided one (1) prescription. The claimant explained that he was not receiving medical treatment in connection with the June 5, 2013, right knee injury because he could not afford it. As a consequence of the afore, the claimant described the treatment measures that he undertook in connection with his right knee symptoms: I just, basically, had nothing except an ace bandage that I would wrap around my knee, and, you know, I had the pills that he had given me, which was a narcotic, Hydrocodone. And I was taking that, and, of course, I could take Aleve. (T.24-25). The claimant acknowledged seeing Dr. Alexander on another occasion between June 2013, and September 2013, pursuant to the authorization of Ms. Darnisha Hill, the claims adjuster of respondent-carrier. The claimant maintains that the purpose of the afore was to obtain an orthopedic surgeon, and that he left the second visit of Dr. Alexander with the assumption that the referral would be forthcoming. Specifically, the claimant offered regarding the afore, to go 5

6 home and wait and you d get a call from Dr. Pollard. (T. 27). The claimant testified that he never received such a telephone call. The claimant asserts that he was physically unable to work during the above period: I could not work. As a maintenance man, I mean, basically, all I could maybe paperwork at best, just sit down or stand in one position, and not move around a whole lot. There was really nothing I could do. (T. 25). Thereafter, the claimant was involved in the April 2014, motor vehicle accident. The claimant described his symptoms from the April 2014, motor vehicle accident as a very stiff neck. The claimant continued: I couldn t really move my head from side to side. My back was just - - from the mid to lower region was just in tremendous pain, and it had pinched the nerve that had run down the back of my right leg. (T. 28). The claimant addressed any impact from the April 2014, motor vehicle accident on his right knee: The accident didn t - - in my opinion - - the accident did not increase or diminish the [right knee] pain. The pain was there and it just remained constant. So, I had the knee pain all along. And I told Dr. Rutledge during our initial questionnaire, you know, medical history, that I had a pre-existing workers comp case, that I d injured my knee on June the 5th of 2013, at work, and I asked him, at that time, if he would refer me to see Dr. Pollard, who s the orthopedic surgeon, because he had to have a referral in order to be seen- - for - - by a new patient. And it had - - even though he had done surgery on my knee three years prior earlier in Yes, sir. And that s why I had requested him, specifically, and that and the fact that he s in Pine Bluff, and he knew the history of my - - of my knee, and - - but I had gone over the amount of time 6

7 to not need a referral. (T ). The testimony of the claimant reflects that he is confident that the April 2014, motor vehicle accident did not aggravate or exacerbate his right knee pain, noting that he had the same right knee symptoms following the accident as he had before. The claimant was seen by Dr. Pollard on September 29, The claimant testified that after being seen by Dr. Pollard on September 29, 2014, an MRI was ultimately performed on October 9, 2014, pursuant to the recommendation of same. The claimant was seen in follow-up by Dr. Pollard on December 3, The testimony of the claimant reflects that surgery has been recommended for his right knee. The claimant maintains that he has been unable to work since June 26, 2013, and will remain so until after he is released following the right knee surgery. The claimant testified that he was considered a part-time employee of respondent, and that he had not been employed long enough to receive unemployment compensation benefits. The testimony of the claimant reflects that he filed for Social Security Disability benefits seven (7) months ago and the same is pending. accident: The claimant described his right knee symptoms attributable to the June 5, 2013, Oh, it s just - - it still continues to swell. There s still probably injury - - well, there s injury to the inside of my knee, there s a torn ligament that he - - It hurts, I mean - - Yes, sir. It hurts all the time. Just severe pain and if I turn my foot from side to side, I get just a very sharp pain. 7

8 It s not locking, but it still would just fall out from under me. (T ). The claimant maintains that his right knee gives away without warning: Right. Yes, sir. Yes, sir. Exactly, and I have a cane. I was given a cane, but usually, I mean - - and you would have it in your left hand and I, basically, just - - I had to drop it to use my hands to protect my knee. (T. 36). During cross-examination, the claimant acknowledged that in May 2010, he was diagnosed with a right knee medial meniscus tear following an MRI. The claimant maintains that within five (5) months of the surgery for the right knee medial meniscus tear in 2010, he was able to return to work. The claimant offered that because he was subsequently laid off he did not return to work. The claimant continued regarding his recovery from the afore right knee surgery: All right. But I was able to move around without aid of crutches. I was able to walk around; I mean, it was still a little discomfort. I mean, any time you have surgery, I believe that you re going to have some sort of discomfort, but I was to the point where my knee was healing. (T. 38). The claimant concedes that he was still having right knee pain in The claimant denies that he was informed by Dr. Pollard on January 14, 2011, that he had chronic pain. The claimant confirmed that a 9% whole body impairment rating was generated as a result of the 2010, right knee injury and surgery. (T. 41). The claimant testified that he was uncertain if he worked anyplace between the time of his 2010, right knee injury and his late April 29, 2013, employment with respondent. The testimony of the claimant reflects he worked for respondent through June 5, The claimant s testimony reflects that he visited Healthcare Plus on June 13, 2013, relative to his June 5, 2013, right knee injury and was directed to remain off work through June 8

9 16, The claimant maintain he returned to work on June 23, 2013, however denied working June 20, through June 22, The claimant s testimony reflects the he worked on June 24, 2013, and June 25, 2013, and that while he was on the clock on June 26, 2013, he did not work. The claimant injured his left knee on June 25, 2013, while working at the Holiday Inn. The claimant concedes that following his June 25, 2013, left knee injury he started receiving temporary total disability benefits. During the afore period, the claimant was seen by Dr. Charles Pierce at Arkansas Specialty Orthopedics, and treated for approximately two (2) months. (T. 47). The claimant s left knee claim was settled by Joint Petition in which he received $7, In addition to the afore, temporary total disability and medical benefits were paid in connection with the claimant s June 25, 2013, left knee injury. The claimant acknowledged that he has not worked anywhere since the June 25, 2013, left knee injury, nor has he attempted to work anywhere since his June 25, 2013, left knee injury. The claimant confirmed that he prepared a narrative report to correct Dr. Rutledge s previous report. The claimant testified that prior to going to Dr. Rutledge s office he telephoned and was informed that the doctor was out of state. The testimony of the claimant reflects that he went to the office of Dr. Rutledge shortly after receiving the first narrative report of Dr. Rutledge; that he waited in his office for three (3) hours; and that thereafter Dr. Rutledge s nurse directed him to give her the report and it would be taken care of. The claimant acknowledged that approximately a week later he received the March 20, 2015, report of Dr. Rutledge which reflected contents almost verbatim from what he had written. The testimony of the claimant reflects that Dr. Rutledge signed off on his corrections and that he did not again return to the doctor s office. 9

10 The claimant testified that if in his September 2014, Dr. Pollard indicated that he had injured or aggravated his right knee in the April 2014, motor vehicle accident, the entry would be inaccurate. The medical in the record reflects that prior to the acknowledged compensable June 5, 2013, right knee injury, the claimant has last visited Healthcare Plus on April 13, 2012, with complaints of pain in the right upper leg. The office note regarding the afore visit reflects a diagnoses of muscle sprain, lumbar pain with radiation down right leg, and hypertension. (RX #1, p ). The June 13, 2013, office note of Healthcare Plus regarding a visit of the same date by the claimant reflects his chief complaints as Knee Pain, Bilateral Leg Pain, BP med refill. The afore office note further reflects under history of present illness from the patient: pt states he had knee surgery on Right knee 2 yrs. ago. pat states both his knees are swollen and he had been having fever, both legs are hurting. 24 hours standing/walking Patient here with c/o bilateral knee and leg pain sustained after fall while cleaning a pool. Patient also request a refill on his blood pressure medications.... (RX #1, p. 20). The June 13, 2013, office note reflects that the physical examination of the claimant s knees yield finding of swelling and crepitus in both knees, as well as tenderness to palpation. (RX #1, p ). The record reflects the presence of an off-work slip generated during the June 13, 2013, visit of the claimant to Healthcare Plus, directing him to remain off work from June 13, 2013, through June 16, (RX #1, p. 23). The medical evidence reflects that the claimant was seen at Healthcare Plus on June 26, 10

11 2013, as an WC initial, left knee pain and swelling with the employer being identified as Holiday Inn Express. The afore office note recites an injury being suffered by the claimant on June 25, 2013, when he tripped over covered bed frame at work landing on left knee. (RX #1, p. 25). During the June 26, 2013, clinic visit the claimant s left knee complaint was diagnosed as a contusion for which he was directed to remain off work until July 1, (RX #1, p ). The medical in the record reflects that the claimant was seen in follow-up at Healthcare Plus relative to his June 25, 2013, left knee injury on July 1, 2013, and directed to remain off work through July 9, (RX #1, p ). The medical in the record reflects that the claimant was seen by Dr. William L. Rutledge on May 7, 2014, relative to injuries suffered on April 21, 2014, in a motor vehicle accident. The report of the afore visit reflects, in pertinent part: HISTORY OF PRESENT ILLNESS: Mr. Haney is a 53-yearold male, who suffered injuries in a vehicular accident. He was on the highway and sitting on trailer when a vehicle lost control striking the trailer and knocking him to the ground. He suffered injuries to the neck, mid and lower back, and right knee. He was evaluated at Jefferson Regional Medical Center and is seeing me in followup. He continues to experience neck pain particularly with rotation of the head. His headaches are occurring daily. His lower back is quite painful with radiation of pain to the right gluteal region and right leg. His right knee is very painful with walking or negotiating stairs. He injured his right knee a couple of years ago and it is not completely healed. It is now worse this accident. This patient had no direct head trauma, but he did get knocked into a ditch and reports a brief loss of consciousness. His history is significant, however, and a previous history of several TIAs. * * * His right knee is tender anteriorly and laterally. He has pain with flexion of the knee and lateral stress. There is negative drawer 11

12 sign. * * * PLAN: I am going to prescribe hydrocodone for pain. He is to have physical therapy three times weekly. recheck in two weeks or so. (RX #1, p ). The evidence reflects that the claimant was seen in follow-up by Dr. Rutledge on May 11, The afore office note recites that the claimant s right knee is bothersome. The May 11, 2014, office note reflects the assessment, contusion of the right knee with exacerbation of chronic right knee pain. (RX #1, p. 33). The medical in the record reflects that the claimant was again seen by Dr. Rutledge on May 20, The office note of the afore visit reflects, in pertinent part: SUBJECTIVE: Mr. Haney was injured in an accident and is receiving therapy. He admits to some improvement of his neck pain. His lower back is painful with pain radiating to the right gluteal region. His headaches are less frequent and less severe. The right knee is quite bothersome. He had an injury to his right knee in 2010, then re-injured a year or two ago. This was aggravated with his vehicular accident of 04/21/14. This pain in the knee hurts with standing, walking, and bending. PHYSICAL EXAMINATION: * * * SPINE: There is some lower cervical and proximal thoracic tenderness.... There is guarding of the paraspinal muscles and tenderness of the right SI joint and right gluteal region. EXTREMITIES: His right knee is crepitant and tender with no effusion. It is painful with range of motion. ASSESSMENT: 1. Cervical strain, improving. 2. Thoracic strain. 3. Lumbar strain. 12

13 4. Contusion to the right knee. 5. Headaches, improved. (RX #1, p. 34). The record reflects the presence of a June 11, 2014, Final Report of Dr. Rutledge regarding the claimant. The afore reflects, in pertinent part: BRIEF HISTORY: Mr. Haney was injured when a car hit him as a pedestrian. A vehicle lost control and struck a trailer that Mr. Haney was standing beside. He was knocked to the ground and suffered multiple injuries.... At that time, he was in distress complaining of pain in the neck, mid back, lower back, right gluteal region, and right leg.... PHYSICAL EXAMINATION: On the initial exam, Mr. Haney was in distress secondary to neck pain, headache and right knee pain.... The knee was tender and painful with range of motion. Neurologic exam was grossly psychologic. * * * PLAN: Physical therapy was started and we prescribed narcotic analgesics along with skeletal muscle relaxants..... His symptoms improved and by 06/11/14, Mr. Haney has reached maximum medical improvement. He remains symptomatic with intermittent neck and lower back pain right knee pain. His right knee pain is back to his baseline status of chronic problems. I feel he has reached maximum medical improvement, so I discharged him from active care. I did provide him with exit prescription of analgesics and skeletal muscle relaxants. PROGNOSIS: The prognosis for this patient is guarded. He suffered painful musculoskeletal ligamentous injuries that responded to appropriate care. His right knee had chronic pain and problems and he is to see orthopedic surgeon in the future. The injury that he suffered on 04/21/14 aggravated this chronic right knee pain. He is at risk for a re-expression of symptoms even with minimal trauma... (RX #1, p ). The medical reflects that the claimant was seen by Dr. Allan Pollard on September 29, The office note of the afore visit reflects that the claimant was there for an evaluation of a 13

14 right knee injury: I have followed the pt previously for a R knee injury which occurred in April of The pt underwent surgical treatment in Oct of The pt had diagnostic arthroscopy of the R knee with chondroplasty of the medial femoral condyle with microfx of chrondral injury of the medial femoral condyle, partial medial meniscectomy, and chronroplasty of the patellofemoral joint. The pt was last seen in Jan of I have not seen him back for f/u since then. The pt comes in today for evaluation of a R knee injury which occurred in June of The pt was working doing some maintenance at a local hotel when he tripped and fell around the pool and struck the anterior aspect of the R knee. The pt tells me that he was having some mild pain in the R knee but it got worse after this fall in June of Since then, the pt has had pain in the medial aspect of the R knee as well as sensation of grinding and popping in the R knee. The pt occasionally uses a cane to help him ambulate. He also uses an Ace wrap and a knee support on a prn basis. He has been followed at HealthCare Plus. The pt also sustained another injury to his R knee in April of 2014 when he was involved in a MVA on the Martha-Mitchell expressway. This also aggravated his R knee. The pt has been followed by Dr. Rutledge at HealthCare Plus who referred the pt here today for further orthopedic management. The pt is taking some hydrocodone, but he is not presently taking any antiinflammatory medication. * * * R knee There is a trace effusion. Previous arthroscopy portals are well healed with no sign of infection. Active ROM of the R knee is approx 10 degrees to 90 degrees of flexion. Passive ROM of the R knee is from 0 to 120 degrees of flexion. The pt is able to actively extend the R knee against gravity resistance... Clinically, the extensor mechanism is intact. The pt is tender to palpation over the medial joint line. The lateral joint line is nontender. McMurray s test causes pain along the medial aspect of the knee with external rotation of the R leg. Ligamentous exam is limited somewhat by guarding but is stable. Lechman s test is 14

15 negative.... X-RAYS: Four views of the R knee taken today in our office including AP, weightbearing AP, lateral and sunrise views show some narrowing of the medial joint space on the weightbearing view of the R knee. I do not see any advanced degenerative changes. No other abnormality is identified. IMPRESSION: 1. OA of the R knee medial compartment s/p R knee injury April 2010 the chondral injury of the medial femoral condyle, medial meniscus tear and chondromalacia of the patellofemoral joint. 2. Two recent R knee injuries June 2013 and April The pt indicates that his knee is worse since those injuries, and so it is possible that he may have had a tear of his menial meniscus in addition to his preexisting chronic problems. PLAN: The diagnosis was discussed with the pt. I have recommended further workup with an MRI scan of the R knee. The pt will be scheduled for an MRI scan of the R knee. When the result is available, the tender to palpation will be contacted and we will make a plan of treatment from there. The pt may bear weight as tolerated on the R leg, but I told him it is okay to use the cane prn if needed. The pt is not presently working. I gave him a Rx for meloxicam 7.5 mg 1 p.o.q.d... He can use the Ace wrap or knee support prn if he finds it helpful. F/U pending review of the MRI scan of the R knee. (RX #1, p ). The record reflects the presence of a October 9, 2014, radiology report relative to an MRI of the claimant s right knee, which was ordered by Dr. Pollard and performed at Jefferson Regional Medical Center. The afore reflects, in pertinent part: FINDINGS: There is an oblique undersurface tear in the body of the medial meniscus. There is severe chondral surface thinning in the medial compartment with mild subchondral narrow edema in the medial femoral condyle and medial tibial plateau. There is mild to moderate chondral surface thinning in the patellofemoral compartment. 15

16 There is a trace joint effusion. No loose bodies demonstrated. * * * IMPRESSION: 1. Medial meniscus tear. Severe chondral surface thinning and adjacent bone contusions in the medial compartment. 2. Medial collateral ligament sprain. 3. Trace joint effusion with intra-articular fatty mass medial to the infrapatellar fat pad and additional fatty mass within a probable ganglion cyst posterior to the proximal tibiofibular joint, perhaps representing a variant of lipoma arborescens. 4. Small Baker s cyst. 5. Patellar tendinosis. (RX #1, p. 47). The claimant was again seen by Dr. Pollard on December 3, The office note of the afore visit reflects, in pertinent part: HISTORY OF PRESENT ILLNESS: The pt is a 53 y/o man who returns today for f/u of a R knee injury. The pt has a history of a R knee injury in April of He had surgical treatment in Oct of 2010 with R knee arthroscopy with chondroplasty of the medial femoral condyle with microfx to chondral injury of the medial femoral condyle, partial medial meniscectomy and chondroplasty of the patellofemoral joint. The pt had a re-injury of his R knee in June of He was working doing maintenance at a local hotel when he tripped and fell and struck the anterior aspect of the R knee. His knee pain got worse after that injury. The pt also injured his knee again in a MVA in April of The pt has continued to have problems with R knee pain. He has R knee pain which is localized along the medial aspect of the R knee. He notes episodes of popping and locking in the R knee. He uses a cane some of the time to ambulate. His knee pain is significant enough that he has had to limit his activity because of his knee pain. The pt was evaluated most recently on 09/29/2014. An MRI scan of the R knee was obtained. This showed some degenerative change in the medial compartment along with a medial meniscus 16

17 tear. The pt returns today for f/u and discussion of the MRI scan results. The pt continues to have significant symptoms of pain, popping and locking in the R knee. His pain is localized along the medial aspect of the R knee. PHYSICAL EXAM: * * * * * * EXTREMITIES: R knee There is a trace effusion. Active ROM of the R knee is from 10 degrees to 90 degrees of flexion.... * * * MRI scan of the R knee done 10/09/2014 has been reviewed. There is a tear of the medial meniscus. This is best seen on the coronal images in the middle ½ of the medial meniscus. There is also some degenerative change in the medial compartment. I can see an area of increased signal in the medial femoral condyle and medial most aspect of the medial tibial plateau. There is a small osteophyte from the medial femoral condyle. I do not see any tear of the lateral meniscus. The anterior and posterior cruciate ligaments, medial and lateral collateral ligaments and extensor mechanism are all intact. There is a Baker s cyst. My impression based upon my review of the MRI scan of the R knee is that the pt has degenerative change in the medial compartment with a tear of the medial meniscus. The radiologist s report regarding the MRI scan of the R knee done 10/09/2014 has been reviewed and is included in the chart.... * * * IMPRESSION: 1. OA of the R knee medial compartment s/p R knee injury April 2010 with chondral injury of the medial femoral condyle, medial meniscus tear and chondromalacia of the patellofemoral joint. 2. Recent R knee injuries in June 2013 and April 2014 Now 17

18 with findings of medial meniscus tear on MRI scan of the R knee. The medial meniscus tear may be a result of the pt s recent knee injuries and may also be a residual of the pt s previous partial medial meniscectomy and degenerative change in the medial compartment of the R knee. PLAN: I explained the diagnosis to the pt. I have explained the treatment options. I told the pt at this point I think he has two options. Option #1 is to continue with symptomatic measures and activities as tolerated. Option #2 would be to proceed with R knee arthroscopy. R knee arthroscopy would be done in order to address any unstable flaps of meniscus with partial medial meniscectomy and also any unstable flaps of articular cartilage. I told the pt that arthroscopy would be done in the hopes of making his symptoms of popping and locking better. I told the pt in clear terms that I do not think arthroscopy is going to make his knee pain free. He has degenerative change in the medial compartment of the R knee and arthroscopy is not going to change that. I do not, however, think that the degenerative change is severe enough to warrant TKA at this point. After discussing the treatment options with the pt, he wants to proceed with arthroscopic surgery. He is having considerable problems with his R knee and he wants to try anything possible to improve his symptoms in his R knee. He understands that with knee arthroscopy, he may well continue to have pain in the R knee. The pt elects to proceed with surgical treatment. He will be scheduled for outpatient surgery Jefferson Surgery Center Tues 12/30/2014 for R knee arthroscopy/meniscectomy. I have explained the diagnosis, proposed surgical procedure, potential benefits and risks, postop course and treatment alternatives to the pt today in lay terms, and his questions have been answered. (RX #1, p ). The record reflects the presence of a March 20, 2015, of Dr. Rutledge regarding the claimant. The afore report, with is captioned Narrative Report reflects, in pertinent part: BRIEF HISTORY: Mr. Terry Haney was seen by me for injury suffered in an automobile accident that occurred on 04/21/14. He was first seen at my clinic on 05/17/14. He required physical therapy and care for his injuries and was subsequently discharged on 06/11/14. 18

19 A retraction is in order because of my final report dated 06/11/14. This report did not accurately give history of Mr. Haney s right knee injury and some facts and dates are in error. Mr. Haney was injured in an automobile/pedestrian accident that occurred on 04/21/14. He complained from that accident of pain in the neck, mid and low back, right leg, and right gluteal region. His leg pain in my opinion was caused by a pinched nerve in his lower back that radiated to his posterior right thigh and leg just behind the right knee. He has severe pain in his right knee during his initial visit in my office and advised me that this was a preexisting injury that he sustained in a work-related accident that occurred 06/05/13. He further advised me that he had been seen in Pine Bluff by Dr. Lester Alexander at the time of his 06/05/13 accident injury, who advised him to see an orthopedic surgeon as soon as possible. He requested that I make referral for him to see Dr. Allen Pollard because he had not received clearance from his Workmen s Compensation judge for such a referral. He reiterated this information to me and my staff on each visit to the office over the next several weeks of treatment. He advised me that he had a personal injury case pending against the driver of the vehicle that struck him on 04/21/14 and he did not want his right knee preexisting problem or injury to be attributed to that accident. Mr. Haney s history was also positive and that he advised that he had earlier injury and subsequent surgery to his right knee. This was disclosed on his initial medical questionnaire at my office and he advised me that his knee had healed fully and that he was able to return to work and normal activities of daily living after the surgery. That particular surgery was done in 2010, but in my final report on Mr. Haney s treatment and progression during my care, we used factual documentation obtained from JRMC. Because of this, we made a referral to Dr. Pollard that inadvertently attributed Mr. Haney s past medical issues regarding his right knee pain and continued suffering to the injury sustained to his 2010 problems. This mistake occurred because the only right knee injury records prior to the 04/21/14 accident that I saw were that of My physical therapist and staff did not treat his right knee injury per se, but administrated therapeutic modalities to his entire right leg to help alleviate inflammation and pain caused by the pinched nerve in his lower back. Upon completion of his rehab here, I agreed with his earlier right knee assessment done by Dr. Alexander and I made referral to Dr. Allen Pollard for his knee 19

20 injury that occurred on the job on 06/05/13. I hope this clarifies the inaccuracies stated in my final report of 06/11/14 as it relates to Mr. Terry Haney. (CX #2). The record reflects that the claimant was again seen by Dr. Pollard on April 3, The office note of the afore visit reflects, in pertinent part: HISTORY OF PRESENT ILLNESS: The pt is a 53 y/o man who returns today for f/u of his R knee. The pt was previously scheduled for R knee arthroscopy/meniscectomy on 12/30/2014. He called and cancelled that surgery as he was still working through the WC process. The pt has a past history of a R knee injury in April of In Oct of 2010, the pt had R knee arthroscopy with chondroplasty of the medial femoral condyle and microfx to the area of chondral injury of the medial femoral condyle, partial medial meniscectomy and chondroplasty of the patellofemoral joint. The pt had a re-injury of his R knee in June of The pt was injured in an on-the-job accident while doing maintenance. He tripped and fell and injured his R knee. The pt also was injured in a MVA in April of The pt has R knee pain. He has popping in the R knee but no locking. The pt s pain is worse over the medial aspect of the R knee. The pt has undergone an MRI scan of the R knee which did show a medial meniscus tear. Th pt is continuing to go through the WC process. He tells me he has a court hearing later this month to determine the status of the WC claim in this instance. * * * PLAN: I talked with the pt today again about the treatment options. The alternatives are either to continue with symptomatic measures and activities as tolerated or consider R knee arthroscopy. R knee arthroscopy would be for diagnostic arthroscopy of the R knee with meniscectomy. I went over the surgical procedure with the pt today. I told the pt that if he has a meniscus tear or unstable flaps of articular cartilage that are acting as a mechanical problem in the knee, then arthroscopy may help some at least with symptoms of popping in the R knee. I did explain to the pt that arthroscopy is not going to have any effect on 20

21 the degenerative change in the medial compartment. The pt may well continue to have pain in the R knee despite arthroscopic intervention. I do not see much else to offer other than observation and symptomatic measures or R knee arthroscopy/meniscectomy. Although the pt is developing some degenerative change in his R knee, the degenerative changes are not severe enough to warrant a TKA presently. I told the pt that someday that might be required. The pt is going to consider arthroscopy of the R knee as outlined. He does not want to do anything until he has had his court appearance later this month.... The pt is going to consider R knee arthroscopy/meniscectomy. After he has had his appearance in court, and if he decides that that is the course he wants to pursue, he is instructed to give me a call and we can get him set up for outpatient surgery for R knee arthroscopy/meniscectomy... (CX #3). After a thorough consideration of all of the evidence in this record, to include the testimony of the witness, review of the medical reports and other documentary evidence, application of the appropriate statutory provisions and applicable case law, I make the following: FINDINGS 1. The Arkansas Workers Compensation Commission has jurisdiction of this claim. 2. On June 5, 2013, the employment relationship existed, during which time the claimant earned wages sufficient to entitle him to weekly workers compensation benefits of $145.00, for temporary total/permanent partial disability. 3. On June 5, 2013, the claimant sustained an injury to his right knee arising out of and in the course of his employment. 4. The claimant was temporarily totally disabled for the period June 13, 2013, through June 16, 2013, and from June 26, 2013 and continuing through the end of healing period, a date to be determined. 21

22 5. The respondents shall pay all reasonable hospital and medical expenses arising out of the claimant s compensable June 5, 2013, right knee injury. 6. Issues of permanency are expressly reserved. 7. The respondents have controverted the claimant s entitlement to workers compensation benefits, both medical and indemnity, subsequent to June 25, CONCLUSIONS The compensability of the claimant s June 5, 2013, right knee injury is not disputed. The claimant s contends that as a result of the June 5, 2013, compensable injury he continues to require medical treatment, which respondents have refused to provide, and that he has been rendered totally disabled from engaging in gainful employment since he last discharged employment duties in June The claimant seeks corresponding medical and temporary total disability benefits as a result of the June 5, 2013, compensable right knee injury. Respondents content that the claimant only missed three to four days from work as a result of the June 5, 2013, compensable injury, and that they have paid all accident related medical expenses. The present claim is one governed by the provisions of Act 796 of 1993, in that the claimant asserts entitlement to workers compensation benefits as a result of an injury having been sustained subsequent to the effective date of the afore provisions. Medical Treatment In workers compensation law, an employer takes the employee as he finds him, and employment circumstances that aggravate pre-existing conditions are compensable. Heritage Baptist Temple v. Robison, 82 Ark. App. 460, 120 S.W.3d 150 (2003). A pre-existing disease or 22

23 infirmity does not disqualify a claim if the employment aggravated, accelerated, or combined with the disease or infirmity to produce the disability for which compensation is sought. St. Vincent Medical Center v. Brown, 53 Ark. App. 30, 917 S.W.2d 550 (1996). As noted above, the compensability of the claimant s June 5, 2013, right knee injury is not disputed. While the claimant suffered a prior injury to his right knee in 2010 which resulted in surgery and an assessment of an anatomical impairment, there is no evidence in the record to reflect that the claimant sought treatment in connection with his right knee complaints subsequent April 13, 2012, before his June 5, 2013, compensable injury. The claimant commenced his employment with respondent on or about April 29, There is no evidence in the record to reflect that the claimant experienced restriction or physical limitations in the discharge of his employment duties prior to the June 5, 2013, compensable injury to his right knee. Ark. Code Ann (a) (Repl. 2012), mandates that the employer shall promptly provide for an injured employee such medical treatment as may be reasonably necessary in connection with the injury received. What constitutes reasonably necessary medical treatment is a question of fact for the Commission. Dalton v. Allen Engineering Co., 66 Ark. App. 201, 989 S.W.2d 543 (1999). The injured employee must prove that medical services are reasonably necessary by a preponderance of the evidence. Reasonably necessary medical services may include that necessary to accurately diagnose the nature and extent of the compensable injury; to reduced or alleviate symptoms resulting from the compensable injury; to maintain a level of healing achieved; or to prevent further deterioration of the damage produced the compensable injury. Jordan v. Tyson Foods, Inc., 51 Ark. App. 100, 911 S.W.2d 593 (1995); Artex 23

24 Hydrophonics, Inc. v. Pippin, 8 Ark. App. 200, 649 S.W.2d 845 (1983). In the present claim, the evidence preponderates that the claimant suffered a compensable injury to his right knee on June 5, Contrary to the assertions of respondents that they have paid all accident related medical expenses associated with the claimant s compensable June 5, 2013, right knee injury, the evidence in record reflects that the same is not so. Following the occurrence of the claimant s June 5, 2013, right knee injury, he first secured medical treatment on June 13, 2013, and was directed to remain off work until June 17, While the claimant did return to work, the evidence reflects that he continued to experience symptoms in the right knee. There is no evidence in the record to reflect that the claimant has been symptom free with respect to his right knee injury since the June 5, 2013, accident. The evidence preponderates that the clamant continued to seek and obtain medical treatment in connection with his right knee injury subsequent to June 17, It is undisputed that on or about June 25, 2013, the claimant suffered an injury to his left knee while employed by a different employer, for which he received medical treatment and indemnity benefits, the claimant s right knee complaints/symptoms persisted. Additionally, the claimant suffered injuries in a April 21, 2014, motor vehicle accident. The medical in the record reflects that medical providers providing treatment for the injuries growing out of the automobile accident were notified by the claimant of his June 5, 2013, work-related right knee injury, and continuing complaints relative to same. The evidence reflects that treatment was rendered to the claimant in connection with his June 5, 2013, right knee injury by Dr. Alexander at HealthCare Plus, and by Dr. Allan Pollard, a Pine Bluff orthopedic surgeon. Diagnostic studies disclosed the presence of objective findings 24

25 evidencing the June 5, 2013, compensable right knee injury. Indeed, in December 2014, surgery was recommended and scheduled relative to the claimant s right knee complaint, but later canceled by claimant when respondents refused to be responsible for the cost of same. The claimant has sustained his burden of proof by a preponderance of the evidence that his present need for medical treatment, to include surgery, is the product of the June 5, 2013, compensable right knee injury in the employment of respondents. The respondents have controverted the claimant s entitlement to workers compensation benefits growing out of the June 5, 2013, compensable right knee injury subsequent to June 17, Temporary Total Disability Benefits The parties stipulated that the claimant suffered a compensable right knee injury on June 5, Temporary total disability for unscheduled injuries is that period within the healing period in which the claimant suffers a total incapacity to earn wages. Ark. State Highway & Transportation Dept. v. Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981). The claimant suffered a compensable scheduled injury in his June 5, 2013, accident. The claimant s claim for temporary total disability for his scheduled injury is governed by Ark. Code Ann (Repl. 2012). An employee who has suffered a scheduled injury is to receive temporary toal disability or temporary partial disability benefits during his healing period or until he returns to work. Wheeler Construction Co. v. Armstrong, 73 Ark. App. 146, 41 S.W.3d 822 (2001). Ark. Code Ann (13) defines healing period as, that period for healing of an injury resulting from an accident. A claimant s healing period has not ended when treatment is being administered for the healing and alleviation of the condition. J.A. Ridggs Tractor Co. v. Etzkorn, 30 Ark. App. 200, 785 S.W.2d 51 (1990). 25

26 Nevertheless, there is evidence in the record to reflect that the claimant received temporary total disability benefits in connection with his compensable June 25, 2013, left knee injury. Neither the duration nor the amount of his weekly temporary total disability compensation benefit rate relative to the June 25, 2013, left knee injury is identified in this record. In Karen Hatcher v. Columbia Forrest Products/Staffmark, Full Workers Compensation Commission, September 14, 2005 (F and F404780), the Full Commission determined that Ark. Code Ann was applicable in the instance of the claimant being awarded temporary total disability from two (2) different respondents. In Hatcher the injuries were bilateral carpal tunnel syndrom, with one respondent being responsible for the right wrist and the other being responsible for the left wrist. In the afore, the Full Commission ruled, under Ark. Code Ann and with guidance from to reduce in an amount equal to, dollarfor-dollar, the amount of benefits the claimant was awarded for the same period of disability. Accordingly, respondents are entitled to an offset for temporary total disability benefits paid to the claimant in connection with his compensable left knee injury for the same temporary total disability covering the compensable right knee injury. In the present claim, the claimant has not worked since June 26, The claimant s right knee has remained symptomatic since suffering the June 5, 2013, compensable injury. The claimant was seen by an orthopedic physician, Dr. Pollard, on September 29, 2014, and underwent an MRI of the right knee on October 9, Specific options have been recommended in the treatment of the claimant s right knee complaint, to include right knee arthroscopy. Indeed, surgery was scheduled for the right knee on December 30, 2014, but later 26

27 cancelled due to the controversion of the claim. The claimant has sustained his burden of proof by a preponderance of the evidence that he remains within his healing period as a result of the June 5, 2013, compensable injury and has not worked since June 26, Respondents have controverted the claimant s entitlement to workers compensation benefit relative to the June 5, 2013, compensable right knee injury subsequent to June 26, AWARD Respondents are herein ordered and directed to pay to the claimant temporary total disability benefits at the weekly compensation benefit rate of $145.00, for the period commencing June 13, 2013, through June 16, 2013, and June 26, 2013, through the end of his healing period or until such time as he returns to work, as a result of the June 5, 2013, compensable right knee injury. Said sums accrued shall be paid in lump without discount. The respondents are entitled to an offset, dollar-for-dollar, for temporary total disability benefits paid to the claimant in connection with his compensable left knee injury, for the same period of disability, pursuant to Ark. Code Ann Respondents are further ordered and directed to pay all reasonably necessary medical, hospital, and other apparatus expenses growing out of and in connection with the treatment of the claimant s compensable June 5, 2013, right knee injury, to include medical related milage. until paid. This award shall bear interest at the legal rate pursuant to Ark. Code Ann , IT IS SO ORDERED. Andrew L. Blood, ADMINISTRATIVE LAW JUDGE 27