BEFORE THE ARKANSAS WORKERS COMPENSATION COMMISSION CLAIM NO. G RONNIE AKINS, EMPLOYEE CRANFORD CONSTRUCTION CO., EMPLOYER

Transcription

1 BEFORE THE ARKANSAS WORKERS COMPENSATION COMMISSION CLAIM NO. G RONNIE AKINS, EMPLOYEE CRANFORD CONSTRUCTION CO., EMPLOYER ACIG INSURANCE CO., CARRIER CLAIMANT RESPONDENT RESPONDENT OPINION FILED JUNE 23, 2016 Hearing before ADMINISTRATIVE LAW JUDGE ANDREW L. BLOOD, on June 22, 2016, at Little Rock, Pulaski County, Arkansas. Claimant represented by the HONORABLE EUGENE P. CLIFFORD, Attorney at Law, Little Rock, Arkansas. Respondents represented by the HONORABLE WILLIAM M. BRIDGFORTH, Attorney at Law, Pine Bluff, Arkansas. STATEMENT OF THE CASE A hearing was conducted in the above-styled claim to determine the claimant s entitlement to workers compensation benefits. On May 16, 2016, a pre-hearing conference was conducted in this claim, from which a Pre-hearing Order of the same date was filed. The Prehearing 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 Ronnie Akins, and Jessica Ellis, coupled with medical reports and other documents comprise the record in this claim.

2 DISCUSSION Ronnie Akins, the claimant, with a date of birth of August 3, 1953, has an eleventh grade education along with two (2) years in the Job Corp. The claimant commenced his employment with respondent-employer on March 26, During the last several years of his employment with respondent-employer the claimant discharged the duties of Asphalt Roller Operator. The claimant acknowledged having prior symptoms in his right lower extremity before the date of the claimed injury in the present claim, however attributed same to heel spurs. The claimant asserts that on or about May 2, 2014, while discharging employment duties in Pine Bluff the pain in his right lower extremity became so severe that he informed his supervisor, Derrick Duncan, of the complaint. The claimant maintains that Mr. Duncan attempted to contact the appropriate personnel at the North Little Rock office of respondent-employer but was unable to reach anyone. The claimant maintains that the following day the pain in his right lower extremity was such that he telephoned his supervisor and informed him that he would not be in to work but instead would be seeking medical treatment from his primary care physician, Dr. Elizabeth W. Irby. The claimant maintains that he was seen by Dr. Irby in accordance with the above, and was sent for an MRI. The claimant testified that after the MRI results were obtained he was referred to Dr. Jame Pierce at Foot and Ankle Associates. The claimant s testimony reflects that his treatment under the care of Dr. Pierce included the placement of a boot, medication, and directions to remain off work for two (2) weeks. The claimant testified that pursuant to the recommendation of his physician he underwent surgery in connection with the diagnosed achilles tear. While acknowledging he has been released to return to work by his treating physicians the 2

3 claimant testified that he continues to experiences symptoms in the right lower extremity, to include pain and swelling. The claimant maintains that he has not been physically capable of performing a regular job. Jessica Ellis, Safety and HR Director of respondent-employer, testified that she has been employed by same for seventeen years. Ms. Ellis testimony reflects that her job duties include overseeing safety and workers compensation reporting. Ms. Ellis testified that respondentemployer first received notice of the claimant s claim on June 4, 2014, via a note from a physician. Ms. Ellis added that the afore reflected that the claimant would be off work until July 3, Additionally, Ms. Ellis testified that she had a June 4, 2014, message to call the claimant, which she did. Based on her June 4, 2014, telephone conversation with the claimant, Ms. Ellis testified that she explained the FMLA process and informed the claimant that Ms. Carrie Stout with Consolidated Administration would be contacting him. Ms. Ellis testified that she committed her June 4, 2014, conversation with the claimant to a contemporaneous memorandum. (RX #1). The testimony of Ms. Ellis reflects that the claimant last discharged employment duties for respondent-employer in May Ms. Ellis offered that the claimant was on FMLA subsequent to May 2014, and that his employment with respondent-employer ceased when his period of FMLA ended. The medical in the record reflects that the claimant was seen by Dr. Irby, his primary care physician, at Pleasant Valley Family Clinic, on April 23, The medical report of the afore visit reflects, in pertinent part: This 60 year old male presents for chronic conditions, Allergies 3

4 and musculoskeletal pain. History of Present Illness: 1. chronic conditions * * * 3. musculoskeletal pain Onset 3 weeks ago. Severity level is moderate. It occurs intermittently and worsening. Location: right ankle (calcaneus). The pain is aching and sharp. Context: there is no injury. The pain is aggravated by walking. The pain is relieved by rest. Associates symptoms include decreased mobility, joint tenderness, limping and swelling. Pertinent negatives include bruising, crepitus, difficulty initiating sleep, joint instability, locking, nocturnal awakening, nocturnal pain, numbness, popping, spasms, tingling in the arms, tingling in the legs and weakness. (JX #1, p. 12). Treatment-wise, the only disposition reflected in the April 23, 2014, report was the prescription of medication, to include Medrol Pak. Chronologically, the next medical reflected in the record is a June 3, 2014, office note of the claimant s visit to Foot and Ankle Associates. The afore reflects the claimant s chief complaint was that of pain and swelling at the back of right heel. The June 3, 2014, report further reflects, in pertinent part: History of Present Illness: Pain and swelling at posterior right heel. Present for over one year. Aggravated by going up and down ladders. * * * Plan. Office Visit - New Patient Reviewed the findings and the xrays with the patient. Discussed concern over damage to the achilles tendon and need for immobilization. Discussed obtaining MRI for further evaluation of the achilles and evaluate for possible tear. Immobilization is required to rest the achilles and allow for healing as well to help 4

5 prevent further damage that could lead to rupture. rx for Noroc 10/325, #20,sig one tab... rx MRI right ankle for further evaluation of possible damage and tear. A new walking splint nonpneumatic was dispensed. It fit appropriately... A form of medical necessity was documented in the chart. The patient was given proof of receipt,.. (JX #1, p ). The claimant was again seen by Dr. Pierce on June 10, Office note of the afore visit reflects, in pertinent part: Patient is seen in clinic today for follow-up of much pain and swelling in Association with the right lower extremity. Patient has undergone MRI evaluation. MRI results have been refuted scanned into patient chart under multimedia. MRI results show tear of 50% percent of the fibers within the Achilles tendon at the insertion into the calcaneus at the lateral aspect. Physical exam reveals much decrease in localized edema at the lateral insertion of the Achilles tendon. Pain upon palpation is still present is greatly the three years previous visit. NONTRAUMATIC RUPTURE OF ACHILLES TENDON Office Visit - Established Patient review MRI with patient and spouse. Discussed with patient immobilization versus surgical intervention. Will proceed with conservative and advised continue immobilization for conservative treatment measures. Discussed with patient surgical intervention if incomplete healing. Return to clinic in one month. Letter written for work restrictions. (JX #1, p. 19). Dr. Pierce authored a June 10, 2014, correspondence in connection with her evaluation of the claimant of the same date: Mr. Akins is currently under my care and continues to be restricted from regular occupational activities. Mr. Akins has undergone 5

6 MRI evaluation which shows chronic Achilles tendinopathy with tear 50% of the fibers. Mr. Akins is to be immobilized in a below the knee boot walker to the right lower extremity and will be reevaluated on a regular basis. These restrictions are to be in place until Mr. Akins is released return to regular occupational activities. Tentative date to return to occupational activities with no restrictions is August 4, 2014 however this is pending no unforeseen complications. (JX #1, p. 20). The evidence reflects that the claimant underwent surgery under the care of Dr. Pierce on July 16, 2014, in the form of a an exostectomy of the right calcaneus and primary repair of the right Achilles tendon. The medical in the record reflects that the claimant was evaluated by Dr. Gregory Ardoin at Arkansas Specialty Orthopaedics on January 22, The narrative report regarding the afore reflects, in pertinent part: History The comprehensive history was reviewed and the following findings are in addition: 61-year-old male presents a chief complaint of right posterior heel pain. The pain is been present now for a few years. He was seen and evaluated by a local podiatrist in June of She ordered an MRI which revealed chronic Achilles tendinosis type changes. She placed him in a boot and subsequently perform the surgical debridement and secondary pair of the Achilles tendon insertion and Haglund s excision in July The patient presents to me for evaluation for continued pain. He also is requesting a impairment rating. He states that this was probably do (sic)to chronic exertional activity from his job. He states that there is no one specific injury reported. Reports having to climb up on heavy equipment daily. He currently is not working. This is currently not a work comp case. The patient s pain is described as throbbing. He reports that it is improving. It is improved with rest. It is worsened with lifting standing and walking. The patient has tried surgery as described, physical therapy after surgery and medications. He has not tried anti-inflammatory creams. He states that the swelling is worse with activity and is 6

7 located at the insertion of the Achilles tendon. * * * Assessment Continued pain despite debridement and secondary pair of the Achilles and Haglund s excision Plan I explained that sometimes 9 months. I think he needs to give this a few more months. If his symptoms do not improve I will repeat his MRI. I also prescribed P.33 cream for the scar and anti inflammatory effects b.i.d. He ll continue his physical therapy exercises at home. I ll see him back in about 2 months. In regards to permanent impairment there is no permanent impairment given for this problem at this point. (JX #1, p ). The record reflects the presence of a February 11, 2015, release of the claimant authored by Dr. Pierce. The afore reflects, in pertinent part: Mr. Akins is release to return to regular occupational activities at his lawyers discretion. (JX #1, p. 25). A memorandum generated by Ms. Ellis regarding her June 2014, contact with the claimant was entered in the record. The afore reflects, in pertinent part: 6/4/2014 I had a doctor s note from Foot and Ankle Associates of Central Arkansas and a message to call Ronnie on my desk. The doctor s note said that Ronnie is medically restricted from regular occupational activities till July 3 rd. 6/4/2014 I spoke with Ronnie and explained the FMLA process and told him Carrie Stout with Consolidated Administration would be contacting him. He asked about short term disability. I asked him if he currently had a policy. He said no. I explained that it would not cover pre-existing injury or illness. Ronnie then asked about workers comp. I explained that workers comp only covered injury or illness that happen at work or are caused by work. 7

8 Ronnie then said this has to be casused by getting on and off the roller. I asked why he thought it was work related and he said I m just trying to get something. He said his foot was swelling and he was wearing a walking boot. He also said he might need surgery and the doctor told him he may be off work for a year if he has to have the surgery. (RX #1). After a thorough consideration of all of the evidence in this record, to include the testimony of the witnesses, review of the medical records 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. The employment relationship existed at all times pertinent, to include on or about May 2, 2014, during which time the claimant earned an hourly wage rate of $16.59, as a full-time employee. 3. The claimant has failed to sustain his burden of proof by a preponderance of the evidence that sustained a compensable injury to his right lower extremity on or about May 2, 2014, pursuant to Ark. Code Ann (4) (A) (Supp. 2009). CONCLUSIONS The claimant maintains that while within the course and scope of his employment with respondent-employer he suffered an injury to his right lower extremity which required surgery and rendered his temporarily totally disabled for a period of time. The claimant seeks corresponding medical and indemnity benefits as well as controverted attorney fees. Respondents deny the claimant suffered a compensable injury while in the employment of same. The present claim is one governed by the provisions of Act 796 of 1993, in that the 8

9 claimant seeks workers compensation benefits as a result of an injury having been sustained subsequent to the effective date of the afore provisions. Compensability The claimant acknowledged that he experienced symptoms in his right lower extremity prior to May 2014, however attributed same to heel spurs. The duration of the claimant s employment with respondent-employer is not disputed, nor is there a dispute regarding the claimant s job duties and the manner in which he discharged same. The claimant does not identify a specific incident which serves as the basis for the diagnosed Achilles tendon tear, but rather describes a gradual onset. 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). Indeed, an aggravation of a pre-existing non-compensable condition by a compensable injury is itself compensable. Oliver v. Guardsmark, 68 Ark. App. 24, 3 S.W.3d 336 (1999). An aggravation is a new injury resulting from an independent incident, and being a new injury with an independent cause, must meet the definition of a compensable injury in order to establish compensability of same. Crudup v. Regal Ware, Inc., 341 Ark. 804, 20 S.W.3d 900 (2000); Farmland Insurance Co. v. Dubois, 54 Ark. App. 141, 923 S.W.2d 883 (1996). Ark. Code Ann (4)(A) (Supp. 2009), defines compensable injury (i) An accidental injury causing internal or external physical harm to the body...arising out of and in the course of employment and which requires medical services or results in disability or death. An injury is accidental only if it is caused by a specific incident and is identifiable by time and place of occurrence; 9

10 (ii) An injury causing internal or external physical harm to the body and arising out of and in the corse of employment if it is not caused by a specific incident or is not identifiable by time and place of occurrence, if the injury is: (a) Caused by rapid repetitive motion. Carpal tunnel syndrome is specifically categorized as a compensable injury falling within this definition[.] A claimant must prove by a preponderance of the evidence the following factors to find an injury compensable under the rapid repetitive motion theory: 1) the injury arose out of and in the course of his employment; 2) the injury caused internal or external physical harm to the body which required medical services or resulted in disability or death; 3) the injury was caused by rapid repetitive motion; 4) the injury was the major cause of the disability or need for treatment; and 5) the injury must be established by medical evidence supported by objective findings. Malone v. Texarkana Public Schools, 333 Ark. 343, 969 S.W.2d 644 (1998). The claimant attributes the injury to his right lower extremity to his job duty activities of climbing up and down the asphalt roller numerous times during the course of his daily duties. The claimant offered that he climbed up and down the roller three (3) to four (4) time before beginning to lay the asphalt, as well as up to seven (7 ) times during the day once he commenced laying the asphalt. While the task of mounting and dismounting (climbing up and down the roller) may be described as repetitive, the claimant has failed to describe the speed at which the task was performed. The claimant s job was that of asphalt roller operator, which meant that he sat on the machine (roller) as the asphalt was laid and between the times that he was climbing up and down on the roller to check the asphalt. The medical in the record describes the claimant s condition as chronic in nature, with symptoms covering several years. The evidence in the record does not preponderate that the 10

11 diagnosed right Achilles tendon tear was the product of rapid repetitive motion. The claimant has failed to sustain his burden of proof by a preponderance of the evidence that he sustained a compensable injury arising out of and in the course of his employment. This claim is respectfully denied and dismissed. If they have not already done so, the respondents are directed to pay the court reporter fees and expenses within thirty (30) days of receipt of the invoice. IT IS SO ORDERED. Andrew L. Blood, ADMINISTRATIVE LAW JUDGE 11