BOGARD v. CWR CONSTRUCTION, 1998 AWCC 7

CLAIM NO. E217705

MATT BOGARD, EMPLOYEE, CLAIMANT, v. CWR CONSTRUCTION, EMPLOYER, RESPONDENT and AETNA INSURANCE COMPANY, INSURANCE CARRIER, RESPONDENT

Before the Arkansas Workers’ Compensation Commission
OPINION FILED JANUARY 12, 1998

Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.

Claimant represented by the HONORABLE KENNETH A. OLSEN, Attorney at Law, Little Rock, Arkansas.

Respondents represented by the HONORABLE BETTY J. DEMORY, Attorney at Law, Little Rock, Arkansas.

Decision of Administrative Law Judge: Affirmed.

[1] OPINION AND ORDER
[2] The claimant appeals an opinion and order filed by the Administrative Law Judge on January 16, 1997. In that opinion and order, the administrative law judge found that the present claim is barred by the statute of limitations. After conducting a denovo review of the entire record, we find that the claimant failed to prove by a preponderance of the evidence that the benefits sought in the present claim are causally related to the claimant’s work-related injury. Therefore, we find that the decision of the administrative law judge must be affirmed. [3] The claimant began working for the respondent construction company in July of 1991 and continued to work for the respondents until January of 1992. Sometime around November 15, 1991, the claimant slipped in the mud at a work site. The claimant reported at that time that his knee hurt but indicated that he did not want to file a workers’ compensation claim. The record indicates that approximately 3 days later, the claimant missed a few days from work due to problems with his left knee. However, the claimant returned to work until he quit his job in January of 1992 because of a management dispute. The claimant began drawing unemployment benefits after January of 1992. [4] The medical record indicates that the claimant first sought treatment for his knee from Dr. Agnew at UAMS on March 19, 1992. The claimant subsequently underwent an arthroscopic surgery on his left knee on April 15, 1992, and thereafter underwent multiple surgeries for which the claimant has subsequently been assigned a 65% impairment rating based on his knee condition and surgeries. The claimant asserts that his medical treatment beginning on March 19, 1992, his multiple surgeries, and his disability are causally related to the work-related incident that occurred on or about November 15, 1991. [5] However, we find that the greater weight of the evidence in the record indicates that the claimant’s knee injury sustained on or about November 15, 1991, was temporary in nature and resolved prior to March 19, 1992, when he first sought treatment from Dr. Agnew at UAMS. In reaching this conclusion, we note that although the claimant asserts that his left knee problems beginning in March of 1992 are causally related to having slipped in the mud at a construction site in November of 1991, the record indicates that the claimant apparently only missed a very short period of work thereafter and then continued to work until he quit and drew unemployment benefits in January of 1992. In addition, we note that the claimant did not see a doctor until March 19, 1992, approximately 4 months after the construction site incident and 2 months after he quit working for the respondents. [6] In addition, Dr. Agnew’s report from March 19, 1992, does not
mention any work-related incident in 1991. Instead, that report refers to a history of 14 years of knee problems with surgery at age 17 for a medial meniscectomy which “gradually worsened with medial joint line pain until he is now severely limited.” Likewise, Dr. Agnew’s April 15, 1992, operative report also indicates a history of “insidious onset of pain and deformity in his knee, over the last 2 to 3 years” with “advanced degenerative changes.” Likewise, Dr. Agnew drafted a letter dated November 6, 1992, which stated in relevant part:

Mr. Bogard first came under my care in March of this year for problems stemming from chronic left knee pain, secondary to having had medial meniscectomy at age 18. Mr. Bogard was gainfully employed as a construction worker and part-time crane operator, however this became increasingly difficult for him, if not dangerous due to the posture of his leg.

[7] The first medical records ever suggesting that the claimant’s problems beginning in March of 1992 were potentially work related was a 1996 outpatient note prepared by a Dr. Michael Gruenwald and in a letter prepared by Dr. Gruenwald shortly thereafter, apparently in response to an inquiry from the claimant’s attorney. In assessing the weight to be accorded Dr. Gruenwald’s opinions in these documents, we note that these documents indicate that the claimant’s problems started with a work-related injury sustained in June (not November) of 1991. We also note that neither of these documents contain any explanation whatsoever as to how Dr. Gruenwald might have come to the conclusion in 1996 that the claimant’s knee problems were work-related. Moreover, Dr. Gruenwald’s opinion regarding the etiology of the claimant’s knee problems (i.e. that these problems were somehow work related) appears wholly inconsistent with the prior reports of Dr. Agnew, his colleague at UAMS. [8] In reaching our decision, we also note that the claimant apparently went back to work for the respondents in March of 1992, and apparently never indicated to the respondents at that time (i.e. when he first went to Dr. Agnew) that he felt that he was experiencing any problems related to the November 1991 incident. If the claimant in March of 1992 felt that his knee problems at that time were a continuation of the incident that occurred in November of 1991, then the claimant would likely have advised the respondents (who he was working for again in March of 1992) that he was going to the doctor for work-related knee problems, and the claimant certainly would have advised Dr. Agnew of the incident that occurred in November of 1991. In assessing the significance of the evidence that the claimant never mentioned any work-related incident to Dr. Agnew and never indicated to his employer in March of 1992 that he was going to the doctor for knee problems, we also note that the claimant’s knee problem at age 17 (for which he received surgery) was also work related, indicating that the claimant has prior experience with the workers’ compensation system. In short, after conducting a de novo review of the entire record, and for the reasons discussed herein, we find that the greater weight of the evidence in the record indicates that the claimant experienced a relatively minor incident involving his left knee in November of 1991, and that any temporary exacerbation that the claimant may have experienced as a result of that particular incident resolved prior to his seeking medical treatment in March of 1992. Consequently, we find that the claimant failed to prove by a preponderance of the evidence that he is entitled to any of the benefits which he seeks in the present claim. Therefore, we find that the administrative law judge’s decision denying benefits must be affirmed. Because we find that the claimant failed to prove by a preponderance of the evidence that he is entitled to any of the benefits which he seeks in the present claim, we need not address the respondents’ alternative assertion that the claimant’s present claim is barred by the statute of limitations. [9] IT IS SO ORDERED.

ELDON F. COFFMAN, Chairman MIKE WILSON, Commissioner

[10] Commissioner Humphrey dissents.