BEFORE THE ARKANSAS WORKERS COMPENSATION COMMISSION CLAIM NO. G WILLIAM RODGERS, EMPLOYEE OPINION FILED OCTOBER 31, 2014

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1 BEFORE THE ARKANSAS WORKERS COMPENSATION COMMISSION CLAIM NO. G WILLIAM RODGERS, EMPLOYEE ULTIMATE FORD, INC., EMPLOYER RISK MANAGEMENT RESOURCES, INSURANCE CARRIER CLAIMANT RESPONDENT RESPONDENT OPINION FILED OCTOBER 31, 2014 This matter was submitted before ADMINISTRATIVE LAW JUDGE CHANDRA L. BLACK, in Little Rock, Pulaski County, Arkansas. The claimant was represented by The Honorable Thomas W. Mickel, Attorney at Law, Bryant, Arkansas. The respondents were represented by The Honorable Jarrod Parrish, Attorney at Law, Little Rock, Arkansas. STATEMENT OF THE CASE A prehearing was held in the above-styled claim on June 30, 2014, in Little Rock, Arkansas. A Prehearing Order was previously entered in this case on that same date. The following stipulations were submitted by the parties. I hereby accept said stipulations as fact: 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 September 16, On that date, the claimant sustained admittedly 1

2 compensable injuries to both of his knees. 4. At the time of his compensable incident, the claimant s average weekly wage was $ The claimant is entitled to a temporary total disability rate of $215, and a permanent partial disability rate of $ The claimant has been assigned a 10% right lower extremity impairment rating, and a 2% left lower extremity rating. Both of these ratings have been accepted by the respondents. 6. All issues not litigated herein are reserved under the Arkansas Workers Compensation Act. By agreement of the parties, the sole issue to be adjudicated at this is: whether the claimant is entitled to additional medical treatment in the form of a total right knee replacement. The claimant submitted the following contentions pursuant to his Responsive Filing: A. Claimant contends that he sustained admittedly compensable, bilateral crush injuries to his legs and to his pelvic/hip area when a car crashed through the auto dealership where Claimant was working and struck him. Claimant has been treated by multiple physicians, including an evaluation by Dr. Lowery Barnes who has recommended knee replacement surgery. Respondents have denied the surgery on the grounds it is caused by preexisting conditions. Claimant contends his need for replacement surgery is a compensable consequence from compensable knee surgeries for which Respondents previously paid. B. Claimant is having his surgery done on Medicare. Claimant contends he will be temporarily totally disabled beginning as of the date of surgery, which is anticipated to be done prior to any hearing in this 2

3 claim. C. Claimant contends that Respondents have controverted this claim with respect to the benefits claimed at present. Therefore, Claimant contends s/he is entitled to maximum attorneys fees on all benefits awarded. Claimant requests that and consents to Claimant s portion of attorneys fees, payable to Claimant s attorney, be deducted from compensation payable to Claimant by Respondents and paid directly to Claimant s attorney. The respondents contend that all appropriate benefits have and continue to be paid with regard to this matter. Respondents further contend that they are unaware of any medical treatment or benefits that have ben denied with regard to this matter. The documentary evidence in this case consists of the documents contained in the transcript record of September 17, The parties filed Briefs on September 29, These have been blue-black and made a part of the record. A hearing was scheduled for September 17, 2014, in this matter. However, at the time of the scheduled hearing, the parties agreed to submit this matter on record. DISCUSSION A review of the medical evidence of record demonstrates that the claimant sought initial treatment for his compensable injury on September 16, 2011 from Baxter Regional Medical Center. There, the claimant came under the care of Dr. Dan Swoyer. At that time, the claimant s chief complaint was bilateral leg pain. Dr. Swoyer reported, in relevant part: HISTORY OF PRESENT ILLNESS: 3

4 The patient is a 75-year-old male who was apparently working in the shop at Ultimate Buick when an SUV rolled into the garage and brakes did not work and bumped him, knocked him down, hit a bunch of benches, barrels, and crates, and he says rolled him quite a ways. He is not sure whether the actual truck ran over him or what he thinks happens is he got knocked down and some barrels and benches rolled over on him. He presented with significant pain and was given some Dilaudid that did not help, subsequently Demerol. He underwent CT which was read as normal with no evidence of any fractures and a CT of the head that likewise was normal. He had multiple x-rays, all of these also essentially unremarkable and he initially presented to the emergency room at 2:22 p.m., currently almost 3 hours ago. This time he is relatively comfortable, having got some IV Demerol. * * * EXTREMITIES AND NEUROLOGIC: Grossly intact. He has some abrasions across his knees. He does not have anything that looks like a significant contusion such as a rollover type accident. I think he probably was bumped, push, rolled. DIAGNOSTIC DATA: CT and x-rays, as stated, showing no fractures or intracranial injuries. In view of his age, the fact that he does have significant pain and the potential for compartment syndrome. I feel that it is reasonable to proceed with a 23-hour admission and observation to rule out possible compartment syndrome development. Most likely he will go home in the A.M. This was all explained to the patient, he understands and agrees. On that same date, the claimant underwent x-rays in the form of two views of each knee, with an impression of Unremarkable knees, no acute fracture or dislocation. Dr. Swoyer authored a Discharge Documentation/Summary, on September 17, 2011: FINAL DIAGNOSIS: Multiple contusions and abrasions, status post motor vehicle accident. 4

5 SECONDARY DIAGNOSIS: 1. Benign prostatic hyperplasia. 2. Type 2 diabetes. 3. Non-Hodgkin s lymphoma. 4. Anxiety. 5. Peripheral neuropathy. 6. Chronic obstruction pulmonary disease. 7. Hypertension. 8. Hypercholesterolemia. On September 29, 2011, the claimant underwent a venous doppler of the left lower extremity, by Dr. Richard Burnett, due to injury with swelling of the left knee. Dr. Burnett rendered the following conclusion: Negative for deep vein thrombosis of the left lower extremity. On October 3, 2011, the claimant underwent an MRI of the left leg. Dr. Kyle McAlister rendered the following impression: Very abnormal appearing bony elements, as discussed above, with what appear to be injuries to the medial and lateral malleoli, but with the findings involving the talus, larsal bones, and metatarsals, it is hard to say this is not a more infiltrative process involving the bony elements. Orthopedic evaluation is recommended. The claimant underwent evaluation by Dr. Thomas Knox on October 13, Dr. Knox reported, in pertinent part: HISTORY: Mr Rogers is a 75-year-old male from Gassville who is referred by Work Comp and Dr. Burnett for evaluation of left knee and ankle pain. On September 16, 2011, this gentleman was run over by a SUV while at work at Ultimate Auto Group. He has had severe pain and soreness of the ankle, foot, and knee since that time. He says his pain is constant. It s a 5 on a scale of 1 to 10. He didn t have this pain prior to his injury. * * * 5

6 IMPRESSION: Contusion with reflex sympathetic dystrophy. RECOMMENDATION: I have gone over findings with Dr. Rodgers and his Work Comp nurse that we need to rule out infiltrative process. Additional history, his wife tells me he was treated for non-hodgkin s lymphoma over a year ago. I recommend lab work including protein electrophoresis, CRP, and sed rate. Recheck next week. On October 18, 2011, Dr. Knox wrote: I just got off the phone with Dr. Bruce White and he agrees that with a normal sed rate and normal CRP, the likelihood of any lymphoma recurrence would be very unlikely. We will proceed with a therapeutic exercise program. I will recheck him in about four weeks and see how he is doing. Dr. Knox saw the claimant on November 15, 2011, for a follow-up visit since therapy. The claimant reported that he had undergone five visits, but felt worse that than he did previously. Dr. Knox noted that the claimant had a meniscus tear per the MRI scan. His impression was 1. RSD, pain management controlled. 2. Meniscus pathology. Therefore, Dr. Knox recommended an arthroscopy of the left knee, and sympathetic blocks to see if this would help his lower extremities. The claimant underwent consultation for a second opinion by Dr. Setphen A. Hudson, on December 14, He stated, in relevant part: DISCUSSION/PLAN: We discussed the finding with the patient, his family, and his case manager today. I think most of his symptoms clinically appear to be consistent with reflex sympathetic dystrophy, specifically the pain out of proportion to the amount of injury, light touch sensitivity, and skin color 6

7 changes. I would recommend getting a triple-phase bone scan to evaluate for a the possibility of RSD. I would suggest continuing with the Neurotin, and I will start him back on this at 100 mg three times a day and then increase it to 200 mg three times a day if he tolerates this after the first week, because I think most of his pain is more neuropathic in nature. Hopefully, he can back off of the Lortab somewhat. I think he is taking too much Lortab and may need to scale this back. I will leave this up to his pain management doctors at the VA. I would recommend then setting him up with Dr. Nallu, our physical medicine rehab doctor for sympathetic blocks to see if this shows a response consistent with RSD as the definitive way to find this out. We will see what the bone scan shows. Certainly, if there is evidence of this on the bone scan, I would recommend proceeding with the sympathetic blocks. I do not think he is going to be able to work at this point, and I think he is at risk for chronic pain secondary to RSD, in addition to his chronic back pain with which he is already dealing. A three phase bone scan of the claimant s knees was performed on December 21, Dr. C. Douglas Borg rendered the following impression: 1. Phase bone scan of the bilateral lower extremities that is not reveal abnormal activity suggestive of reflex sympathetic dystrophy. Spot views of the bilateral hands also did not demonstrate focal abnormality. 2. Mild activity within the bilateral knees is suggestive of degenerative change. On December 28, 2011, the claimant saw Dr. Hudson for follow up of his Crush injury, bilateral extremities; possible reflex sympathetic dystrophy, and degenerative tears medial later menisci, of the left knee. Specifically, Dr. Hudson opined, in relevant part: BONE SCAN: His bone scan does not show any evidence of fracture in 7

8 either lower extremity, just some degenerative changes in his knees. It does not show any significant abnormal uptake in his lower extremities or evidence of RSD. ASSESSMENT: 1. Bilateral crush injuries, lower extremities. 2. Probable reflex sympathetic dystrophy, bilateral lower extremities. 3. Tear, medical and lateral menisci, left knee. DISCUSSION/PLAN: I discussed this with him today. I still think this may be more a neuropathic pain and RSD type pain. I still think he would benefit from a trial of a lumbar sympathetic block to see if this relieves some of his burning pain. I discussed this with him at length today. I think he needs physical therapy for range of motion and desensitization. I will see about getting him set up to see Dr. Nallu for possible synthetic block and observe his response to this. If he fails to improve with this, in the future we may need to consider doing an arthroscopy of his knee, but this does not seem to be what is causing his pain at this point. Dr. Pranitha R. Nallu evaluated the claimant on January 12, 2012, due to a chief complaint of bilateral lower extremity pain status post crush injury in September of He wrote: IMAGING STUDIES: A triple-phase bone scan study showed degenerative joint changes at the bilateral knees and was negative for reflex sympathetic dystrophy. An MRI of the left knee and left ankle shows degenerative tears of the medial and lateral meniscus with bone marrow changes. IMPRESSION/DIAGNOSIS: Bilateral lower extremity pain, left worse than the right side, with bilateral foot swelling secondary to neuralgia, neuritis, and possible complex regional pain syndrome secondary to a crush injury in September On January 30, 2012, Dr. Nallu performed Bilaterally lumbar sympathetic block. The claimant had a preoperative diagnosis 8

9 and a postoperative diagnosis of: Bilateral lower extremity reflex sympathetic dystrophy, complex regional pain syndrome. Dr. Nallu performed Bilateraly lumbar sympathetic block under fluoroscopic guidance. The claimant had a preoperative diagnosis and a postoperative diagnosis of: Bilateral lower extremity reflex sympathetic dystrophy, complex regional pain syndrome. This second procedure was performed on February 6, The claimant saw Dr. Hudson for a follow-up visit on April 24, At that time, the claimant reported that he was not really much better. The claimant reported that he had been treated by Dr. Nallu for possible reflex sympathetic dystrophy with some nerve blocks, but these had not really helped. Dr. Hudson wrote, in relevant part: ASSESSMENT: Crush injury, bilateral lower extremities, with possible meniscus tears of the knees. DISCUSSION/PLAN: I reviewed the previous MRI from December This was an abnormal study and was limited because of significant bone marrow edema with possible contusions of bones and significant marrow edema in the distal femur in the medial and lateral sides. There also were some degenerative meniscal tears. The bony contusion should be resolving at this point and improved. Since he has failed to improve, I think we should get some new MRIs to evaluate the meniscus and see if this is a problem with meniscus tears of if there is still a problem with the bone itself. An MRI of the claimant s left knee was performed on May 2, 2012, with the following impression being rendered by Dr. Joe 9

10 Tullis: Impression: 1. Chronic cystic change in the lateral tibial plateau subchondral, but the edema in the lateral tibial plateau on the study of 7 months ago and also in the fibula has resolved. 2. There is a little bit of edema remaining centrally medially in the tibia as a residual of the more diffuse change that was present 7 months ago, which improved considerably. This is now chronic edema. Most of the acute edema in the medial tibia and all of it in the medial fibula have resolved. 3. The ACL and PCL are normal. 4. The menisci are abnormal, especially in the medial meniscus. The lateral meniscus also has chronic signal in it and chronic tear, especially in the posterior and mid portion of the lateral meniscus. 5. There is chronic change at this time, but essentially all of the acute contusion/acute bone edema has resolved or remains chronic. On that same date, an MRI of the claimant s right knee was performed. Dr. Tullis rendered the following impression: 1. Subchondral cystic change in the lateral tibial plateau with chronic edema signal. This is not an acute injury. 2. There is a lot of fluid in the joint space, and a small Baker s cyst posteriorly. 3. Bilateral tears plus degenerative change in the menisci, medial and lateral. The claimant underwent surgery to his knees, on July 20, 2012, by Dr. Hudson: PREOPERATIVE DIAGNOSIS: Bilateral knee medial and lateral meniscus tears. POSTOPERATIVE DIAGNOSIS: 1. Right knee medial meniscus tear and lateral meniscus tear. 2. Left knee lateral meniscus tear. PROCEDURE PERFORMED: 10

11 1. Right knee arthroscopy with partial medial and lateral meniscectomy knees. 2. Left knee arthroscopy with partial lateral meniscectomy. On August 30, 2012, Dr. Hudson pronounced the claimant to be at maximum medical improvement from the bilateral knee arthroscopies. Dr. Hudson wrote, in part: He does have an impairment rating due to the meniscectomies. He had a left knee partial lateral meniscectomy on the left knee, and that equals 2% of the left lower extremity and 1% whole person impairment. The right knee had partial medial and lateral meniscectomies, and that is 10% impairment of the right lower extremity, 4% whole person impairment. Combining 1% and 4% from the whole person impairment equals 5% whole person impairment from the meniscectomies. My suggestion at this point would be for pain management and possibly some Neurontin or other medication to help with this nonspecific pain. I think he needs to continue doing the range of motion exercises and strengthening exercises on his own, but if the therapy is not helping at this point, he can discontinue the formal physical therapy. I will be glad to see him back as needed if there is anything else I can help with. I do not know what more I can do at this point. The claimant underwent an independent medical evaluation by Dr. Barry Baskin on November 1, Dr. Baskin did not think the claimant was at maximum medical improvement at that time. He recommended looking at the claimant s lumbar spine, pelvis and hips. On May 28, 2013, Dr. Baskin wrote the following letter: I received your letter today requesting my opinion regarding Mr. Rodgers knee injuries. I understand that he is still being evaluated for his back, based on my evaluation I do believe his knee injuries are at maximum medical improvement. Mr. Rodgers underwent partial medial and lateral menisectomy of the right as well as partial lateral meniscectomy of the left knee on 7/29/12. 11

12 Using the AMA Guidelines Fourth Edition table 64 on page 85 he would have a 40% whole impairment and 10% lower extremity impairment to the right lower extremity impairment to the right lower based on a partial medial and lateral meniscectomy. He would have a 1% whole person impairment and 2% lower extremity based on the left knee partial lateral meniscectomy. This would give him a 5% whole person impairment and a 12% lower extremity impairment. Mr. Rodgers has had some significant injuries to his knees and no doubt will have persistent arthritis. There is certainly a possibility that he will require a total knee arthroplasty in the future. This concludes my Impairment Rating on Mr. William Rodgers knees and his gait as a result of his knee injuries. If there are any questions regarding his evaluation and impairment, please contact me. Dr. Lowery Barnes wrote the following in an office visit note, on August 21, 2013: PLAN: This is a difficult problem. I suspect that the labral issue of the right hip is not causing significant symptoms. I do not think he would be helped with arthroscopy. His symptoms about his right hip are lateral. They are not in his groin. It is my impression that his main problem at this time is the arthritis of his right knee. At some stage, the question will be ask whether not this is work comp related. It is my impression that the mechanism of injury would not be a common mechanism for meniscal tears of the knees. It was decided, however, that these were related to her [sic] worker s compensation and both knees were arthroscoped. In my opinion, the knees remain part of the workers compensation claim. This is especially true in [sic] the arthritis was not documented preoperatively or postoperatively. Patient does not remember ever having a standing Rosenberg view of his knees. On March 11, 2014, Dr. Hudson wrote the following letter to the medical case manager, Ms. Jarret: 1. In your opinion, within a degree of medical certainty, is the need for total knee replacement the direct 12

13 result of the work injury or is the primary need for total knee replacement due to pre-existing arthritis of the knees? In my opinion, the patient did have pre-existing osteoarthritis of his knees prior to this injury that was clearly evidenced at his arthroscopy and on the x- rays from the initial injury. It is always difficult to say whether a patient would have progressed to a knee replacement if there had been no other injuries sustained, so I think there are some possibilities that the injuries could have exacerbated his symptoms and this led him toward knee replacement surgery. I do think, however, that the primary need for the knee replacement is due to the pre-existing arthritis in his knees. 2. Are there objective findings directly related to the work injury? In my examination of the patient at the time after his initial injury, at his first visit to me, I was not convinced that the majority of his pain was coming from the knee joints themselves and seemed to be more from the crush injury of the soft tissues and/or the nerves because he was having more generalized pain and symptoms at that time. I have not recently examined the patient, so I cannot comment on his current objective findings, but that was the case at my initial visit with the patient. 3. Is the patient at maximum medical improvement in regards to the work injury? If no, please outline the treatment plan to achieve maximum medical improvement in relationship to the work injury. I have previously released the patient at MMI on At that time I was treating his knees only and felt that he had reached maximum medical improvement from the injury itself at least. My review of his further workup does not seem to have uncovered any significant injuries in relation to this, so I must conclude that he most likely has reached maximum medical improvement from the injury itself and is having more symptoms and problems from the osteoarthritis of his knees at this point. 13

14 I apologize if this took a while to get to you, but hopefully this will help. Let me know if you need further documentation or further questions answered. Prior medical records demonstrate that on November 1, 2010, the claimant underwent an evaluation for treatment of bilateral knee pain. At that time, the claimant complained that his knees hurt, and that he fatigued quickly. The claimant had undergone treatment for cancer, in the form of non Hodgkin s lymphoma. 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 he is entitled to additional medical treatment. After weighing the evidence impartially and without giving the benefit of doubt to either party, I find that the claimant failed to prove by a preponderance of the evidence that additional treatment recommended, in the form of a right total knee replacement, is causally related to his compensable knee injury of September 16, Here, the claimant is now 78 years old, but at the time of his compensable incident, he was 75 years old. It is undisputed that on September 16, 2011, the claimant sustained admittedly compensable injuries to his knees, when an SUV rolled into the garage of his place of employment. The exact mechanism of the 14

15 claimant s injury is unclear. Nonetheless, the respondentinsurance carrier has paid some medical benefits, including a surgical procedure for the right knee. Prior to his compensable injury, the claimant suffered from pre-existing arthritis of the right knee. Previously, on November 24, 2010, the claimant underwent a physical therapy evaluation for pain of the knees. The evidence also shows that prior to his work injury of September of 2011, the claimant underwent treatment for lymphoma. Dr. Baskin opined on May 28, 2013, that the claimant could possibly require a total knee arthroplasty in the future. On August 21, 2013, Dr. Barnes opined that the knees remain a part of the workers compensation claim. Dr. Hudson, opined on March 11, 2014, that the primary need for the knee replacement is due to the pre-existing arthritis of the knees. I have attached minimal weight to Dr. Barnes opinion because it was based on an incomplete history of the claimant s prior problems of documented arthritic problems and prior treatment for lymphoma. However, significant weight has been attached to Dr. Hudson s opinion as a treating physician and because it is consistent with the other medical evidence of record. 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 15

16 as he finds him. However, I do not find this to be the case in this matter. Therefore, based on the expert opinion of Dr. Hudson, (the claimant s treating physician), the fact that the claimant complained of knee pain a few months prior to his injury, and because his pre-existing arthritis was symptomatic prior to his work injury, I find that the claimant s compensable right knee injury of September 2011, is not a contributing factor in his need for a total right knee replacement. As such, I am compelled to find that the total right knee replacement surgery is not causally related to the claimant s compensable injury of September 16, Pursuant to Ark. Code Ann , the respondents are not liable for the expense of this additional medical treatment. This claim is hereby respectfully denied and dismissed in its entirety. 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 September 16, The claimant failed to prove his entitlement to 16

17 additional medical treatment, in the form of a total right knee replacement. ORDER The claimant failed to prove his entitlement to additional medical treatment, in the form of, a total right knee replacement. This claim is hereby respectfully denied and dismissed in its entirety. CB/kw IT IS SO ORDERED. CHANDRA L. BLACK Administrative Law Judge 17