CLAIM NO. F006691
Before the Arkansas Workers’ Compensation Commission
OPINION FILED MAY 23, 2001
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by JAY TOLLEY, Attorney at Law, Fayetteville, Arkansas.
Respondents represented by NEAL HART, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed.
OPINION AND ORDER
In an opinion and order filed on November 2, 2000, an administrative law judge determined that claimant proved the occurrence of a specific incident injury for which he is entitled to receive all reasonably necessary medical benefits. Moreover, claimant received an open-ended award of temporary total disability benefits commencing on June 24, 2000. Based on our de novo review of the entire record, we find that the decision of the administrative law judge should be affirmed.
Claimant was employed as a dock worker. His duties included unloading trucks, stocking inventory, and loading items for customers. Claimant testified that on or about January 29, 2000, he injured his shin. He explained that he stepped on an angle iron, which caused him to fall off of the dock. Claimant stated that he landed on the corner of a truck tailgate. He testified that he cut open his shin as a result of the fall.
Claimant testified that “Jeff,” a front office employee, encouraged him to report the incident. He stated that he complied, advising “Wimpy,” the employer’s manager, of the fall. He stated that Wimpy administered Iodine to the cut, and he returned to work. According to claimant’s testimony, he advised Wimpy that he did not need immediate medical treatment.
Claimant stated that his knee stiffened following the accident, and he had difficulty ambulating. Three weeks after the fall, claimant informed Jarold Southern that medical treatment might be necessary. However, respondents did not furnish medical care. He stated that he attempted to schedule an appointment with his sister’s physician. However, he was unsuccessful. Although claimant informed him of the scheduling problem, Wimpy was unresponsive. On June 23, 2000, he was terminated.
Claimant testified that he could not afford medical treatment. When he employed the services of an attorney, he was furnished the names of several physicians from whom he could obtain treatment without payment at the time of service. He testified that he scheduled an appointment with Dr. Duke Harris.
Claimant stated that he has not worked since consulting Dr. Harris. He testified that prior to his employment with respondents, he was involved in the timber industry. Claimant explained that he worked with a partner, cutting trees and sawing logs.
On cross-examination, claimant conceded that he is unsure of the precise injury date. With respect to the delay obtaining medical care, he stated that he called Washington Regional Hospital. He was informed by hospital personnel that he could not receive treatment without a payment source. Claimant stated that following his employment separation, he requested medical care from respondents. He testified that Wimpy declined to furnish treatment.
Claimant conceded that since his employment separation, he put brakes on his sister’s car. He stated that he had some hay, which he was unable to cut and bale. Claimant testified his neighbor cut and baled the hay, and he simply drove the truck. He stated that he is incapable of working.
The medical evidence included Dr. Harris’ chart note for June 29, 2000, which contained a history of a work-related injury to claimant’s knee occurring in February of 2000. Dr. Harris noted that x-rays demonstrated no abnormalities. He indicated that “[claimant] had a significant laceration over the proximal anterior aspect of his tibia.” He furnished samples of Vioxx, and recommended range of motion exercises. His clinical examination revealed:
When I see him today, he’s in apparent distress. His knee is very difficult to examine. He’s very stiff. He does have full extension. I think he may have a trace of effusion but this would be hard to judge. I have difficulty flexing him. I can get him back to approximately 60 o but he’s in a lot of distress with this. I can’t really tell for sure whether he might have some internal derangement.
On July 24, 2000, Dr. Harris reexamined claimant. He noted that the laceration over claimant’s tibia had healed. He indicated that claimant reported pain and swelling. Although he was in distress, Dr. Harris documented an increase in flexion to 90o. Again, range of motion exercises were recommended. Dr. Harris scheduled a follow up appointment for the following month, noting that arthroscopy may be necessary if claimant is not “near 100%.” Claimant contends that he sustained an accidental injury identifiable by time and place of occurrence. Respondents assert that claimant cannot meet his burden of proof in the absence of an injury date.
We find that claimant testified credibly regarding the occurrence of a work-related injury. He offered a detailed account of the injury mechanics. Moreover, claimant reported the injury, and described the administration of first aid by Wimpy in the form of Iodine. It is apparent by his cross-examination that counsel for respondents obtained claimant’s deposition during discovery. Nevertheless, claimant’s hearing testimony is not disputed. We are satisfied that the injury was reported to Wimpy on the date it occurred, and to Jarold Southern several weeks later. We find that claimant’s testimony provides sufficient specificity to satisfy the time/place/definiteness requirements of the act.
In reaching our decision, we recognize that respondents argue that the absence of an injury date precludes a finding that claimant sustained a specific incident injury. However, we have previously rejected the argument that the absence of an injury date is fatal. See, Betty Reeves v. Diversicare Leasing Corporation, Full Workers’ Compensation Commission Opinion filed Feb. 1, 2001 (E911404). Moreover, we note that there is no evidence that the employer documented the injury and first aid administration. Under these circumstances, it is disingenuous for respondents to argue this perceived deficiency compels a denial of claimant’s claim.
Respondents also contend that claimant failed to satisfy the objective findings requirement. We find no merit to this argument. Upon his initial examination, Dr. Harris documented the precise location of claimant’s “significant laceration.” This represents an objective finding. Moreover, his subsequent report indicated that the tibia laceration had healed. As we interpret Dr. Harris’ report, he observed a change in claimant’s injury. Also, he documented the results of the passive range of motion testing he performed. Thus, we are satisfied that the objective findings requirement is satisfied.
In reaching this conclusion, we note that Dr. Harris appears careful to distinguish patient history from his observations. For example, he recorded claimant’s report of swelling. Although he deemed the report credible, it is apparent that he did not observe this symptom.
Claimant seeks reasonably necessary medical treatment for his work-related injury. Although claimant was not examined by a physician until June of 2000, he explained that he lacked the resources to obtain medical care. Moreover, he testified credibly regarding his unsuccessful attempts to obtain treatment at the expense of respondents. It is apparent that claimant required medical services for Dr. Harris’ examination showed a laceration, stiffness, and decreased range of motion. He opined that surgery may be indicated. Claimant testified that illness forced him to cancel an appointment with Dr. Harris. However, he remains symptomatic. Claimant testified that he is unable to bend his knee. He stated that he continues to limp. Since Dr. Harris has yet to rule out arthroscopy, it is apparent that he deemed further treatment appropriate. We find that claimant is entitled to reasonably necessary medical treatment.
In reaching our decision, we note that respondents have advanced the argument that claimant failed to prove the reasonableness and necessity of Dr. Harris’ treatment. Their position is based on claimant’s hearing testimony that he failed to improve as a result of Dr. Harris’ medical care. We are not persuaded. Claimant testified that as a result of the side effects, he was forced to discontinue taking Vioxx. Dr. Harris’ chart note showed that he prescribed this medication to alleviate the soreness in claimant’s knee. Thus, it is not surprising that claimant’s complaints of pain continued. However, the record showed that claimant’s flexion increased after a prescribed course of range of motion exercises.
Claimant also seeks an open-ended award of temporary total disability benefits beginning on June 24, 2000. Respondents contend that several factors militate against an award of indemnity benefits. They point to claimant’s failure to introduce off-work slips, and the absence of any reference to the healing period in Dr. Harris’ reports. Respondents also cite claimant’s termination for alleged misconduct as well his work after the employment separation.
Claimant sustained a scheduled injury; therefore, he must show that he remained within his healing period and failed to return to work. Wheeler Const. Co. v. Armstrong, 73 Ark. App. ___, ___ S.W.3d ___ (2001). According to his report of July 24, 2000, Dr. Harris opined that arthroscopy may be necessary unless claimant improved. Claimant testified credibly that his condition has not improved. He stated that he has pain and continues to limp. Therefore, we find that claimant remains within his healing period. Also, claimant has yet to return to work. We recognize that claimant has performed a few isolated tasks since his employment separation. However, this does not constitute a return to the work force. We specifically find that the Armstrongtest is satisfied.
With respect to the argument raised by respondents that claimant’s termination is a bar to an award of temporary total disability benefits, we note that case law supports a contrary conclusion. See, Superior Ind. v. Thomaston, 72 Ark. App. 7, 32 S.W.3d 52 (2000).
Based on our de novo review of the record, and for the foregoing reasons, we specifically find that claimant proved the occurrence of a specific incident injury for which he is entitled to receive reasonable and necessary medical treatment. We further find that claimant proved entitlement to an open-ended award of temporary total disability benefits commencing on June 24, 2000. Thus, the decision of the Administrative Law Judge is affirmed. All accrued benefits shall be paid in a lump sum without discount and with interest thereon at the lawful rate from the date of the Administrative Law Judge’s decision in accordance with Ark. Code Ann. § 11-9-809 (Repl. 1996). For prevailing on this appeal before the Full Commission, claimant’s attorney is hereby awarded an additional attorney’s fee in the amount of $250.00 pursuant to Ark. Code Ann. §11-9-715 (Repl. 1996).
IT IS SO ORDERED.
______________________________ ELDON F. COFFMAN, Chairman
_______________________________ SHELBY W. TURNER, Commissioner
Commissioner Wilson dissents.