CLAIM NO. E810988
Before the Arkansas Workers’ Compensation Commission
OPINION FILED SEPTEMBER 14, 1999
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE RANDOLPH SHOCK, Attorney at Law, Fort Smith, Arkansas.
Respondents represented by the HONORABLE CURTIS NEBBEN, Attorney at Law, Fayetteville, Arkansas.
Decision of administrative law judge: Affirmed.
[1] OPINION AND ORDER[2] The respondent appeals to the Full Workers’ Compensation Commission an administrative law judge’s opinion filed March 17, 1999. The administrative law judge found that the claimant sustained a compensable injury to her right knee, for which she was entitled to reasonably necessary medical treatment. The Full Commission has reviewed the entire record de novo, and we affirm the opinion of the administrative law judge. [3] The claimant, age 20, has suffered previous problems with her knees bilaterally. The claimant testified that she had dislocated a knee while playing basketball in the eighth grade. The claimant said her right knee would occasionally “pop out” following the basketball incident, and that she would “just kind of work it back in.” Dr. Greg T. Jones examined the claimant on March 24, 1994:
[4] She has increased Q-angles, in the neighborhood of 15 + plus measured grossly today. She has lateral patellar tilt and a positive J-sign. Quadriceps are not particularly robust. She is quite on the heavy side. . . . Radiographs reveal a lateral tilting patella on the sunrise view; otherwise, no osseous abnormality.Ms. Jones is seen in initial evaluation regarding knee pain. This 15-year-old obese white female is seen for initial evaluation regarding right greater than left patellar pain. She had an injury playing basketball, approximately one year ago, and was initially treated in Farmington, New Mexico. She has had persistent symptoms and presents for an evaluation of same.
[5] The claimant became employed with Wal-Mart Super Center on or about March 28, 1998, and the claimant testified regarding a work-related injury to her right knee on September 1, 1998:Dr. Jones assessed patellar instability with chronic anterior knee pain, and he planned strengthening and therapy. Subsequent physical therapist’s notes indicate that the claimant wore a brace on her right knee in order to keep the patella in normal alignment. On April 1, 1994, a progress sheet shows that the claimant complained of a sore right knee after walking at a field trip. Dr. Jones noted on May 3, 1994:
Ms. Jones is seen in follow-up regarding her patellar instability. . . . She has had no further periods of the leg going out. . . . She demonstrates a full range of motion and no effusion. . . . She has her Palumbo patellar stabilization brace and will utilize that for strenuous activities. She will see us back on an as needed basis.
The claimant underwent an arthroscopy in New Mexico in October, 1996. The claimant testified that her knee did not again slip out of place following this surgery, and there was no further treatment of record for the claimant’s knee.
[6] The claimant went to Available Medical Care on September 2, 1998, where she reported stepping off a ladder at work and feeling her right knee “pop.” The record indicates that the claimant’s right knee was swollen. X-ray was taken September 2, 1998: [7] There is no fracture identified. There is no evidence of effusion. There is slightly exaggerated concavity of the medial plateau that could possibly reflect previous trauma or may reflect a normal variant. [8] IMPRESSION: [9] No acute fracture demonstrated. Slightly exaggerated concavity of the medial tibial plateau noted. [10] By September 8, 1998, the physician’s diagnosis was right knee strain, symptom magnification, no internal joint derangement. The claimant was wearing a knee immobilizer. An orthopaedist, Dr. Frankie Griffin, examined the claimant on September 21, 1998 and assessed: [11] 1. Recent patellar dislocation. The patient reports she has had a previous history of recurrent patellar dislocations but none since 1996. [12] 2. Rule out internal derangement. The patient is tender over the medial and lateral joint lines.I worked in the toy department and I was climbing a step ladder to get stuff off of the risers for the shelves. . . . I stepped down on the step and stepped on the floor and my knee popped and gave way and I hit the floor. . . . I heard a loud pop and when I looked down my knee cap was dislocated really bad and so I popped it back in place.
[13] The employee filed a claim for workers’ compensation benefits, which the respondent controverted in its entirety. The parties agreed to litigate the issues of whether the claimant sustained a compensable injury to her right knee on September 1, 1998, and the claimant’s entitlement to payment of medical expenses and attorney’s fees. The claimant contended that she suffered an accidental injury to her right knee arising out of and in the course of her employment on September 1, 1998. The respondent contended that the claimant did not sustain an injury arising out of and in the course of her employment as defined by Act 796 of 1993. [14] After a hearing, the administrative law judge found the claimant’s testimony to be highly credible and accurate: “Logically, the act of the claimant stepping backward off a ladder and placing almost her entire weight (the claimant is 5’4 and weighs 149 pounds) onto her right leg would be sufficient stress or trauma to produce the type of injury subsequently diagnosed.” The administrative law judge opined that the claimant experienced a specific employment-related incident, id est, “stepping backward off a ladder and placing essentially her entire weight on her right leg.” The administrative law judge was aware that the claimant’s symptoms after the accidental injury were “almost identical” with her prior difficulties following the prior basketball injury. The claimant credibly testified, however, that she had experienced no further difficulties after the right knee surgery of October, 1996. The administrative law judge thus found that the claimant had proven she had sustained a compensable injury as a result of a specific incident, and he ordered that the respondent shall be liable for the expense incurred by the claimant for the two examinations and treatment provided by Dr. Tinsman at Available Medical Care, and the claimant’s four visits to Dr. Griffin, the orthopaedist, and his referrals for physical therapy. Respondent appeals to the Full Commission. [15] A claimant has the burden of proving the compensability of her claim by a preponderance of the evidence. Georgia-PacificCorp. v. Carter, 62 Ark. App. 162, 969 S.W.2d 677 (1998). An accidental injury is caused by a specific incident, identifiable by time and place of occurrence. Ark. Code Ann § 11-9-102(5)(A)(i) (Supp. 1997). For an accidental injury to be compensable, the claimant must show that she sustained an accidental injury; that it caused internal or external physical injury to the body; that the injury arose out of and in the course of employment; and that the injury required medical services or resulted in disability or death. Id. Additionally, the claimant must establish a compensable injury by medical evidence, supported by objective findings. Ark. Code Ann. § 11-9-102(5)(D). “Objective findings” are those findings which cannot come under the voluntary control of the patient. Ark. Code Ann. § 11-9-102(16). The requirement that a compensable injury be established by medical evidence supported by objective findings applies only to the existence and extent of the injury. Stephens Truck Lines v. Millican, 58 Ark. App. 275, 950 S.W.2d 472 (1997). [16] In the present matter, the claimant was working in the respondent-employer’s toy department on September 1, 1998. As she was carrying merchandise down from shelves, she stepped down from a ladder, heard and felt a loud pop in her right knee, and fell to the floor. The claimant credibly testified regarding this accidental injury, which arose out of and in the course of her employment. The accidental injury caused physical injury to the body and required medical services, in that the initial treating physician diagnosed right knee strain, and Dr. Griffin diagnosed patellar dislocation, and both physicians prescribed conservative treatment measures. We also find that the claimant established a compensable injury by medical evidence, supported by objective findings. Dr. Tinsman at Available Medical Care reported that the claimant’s right knee was swollen following the injury. This report of swelling by a treating physician qualifies as an objective medical finding. Williams v. General Electric Co., Full Workers’ Compensation Commission, April 3, 1998 (E303597). We note that a physical therapist also reported swelling in the claimant’s right knee. [17] The respondent argues that the claimant failed to prove that she sustained a compensable “new” injury to her right knee, pursuant to Ark. Code Ann. § 11-9-102(5)(A)(i). The respondent states that the claimant did nothing out of the ordinary to cause her kneecap to dislocate again. The respondent also argues that the claimant’s problems are not work-related but rather are a recurrence of her basketball injury of earlier years. We recognize that the claimant has suffered previous knee problems, primarily on the right. The claimant indeed dislocated a knee in the eighth grade while playing basketball, and she was treated conservatively for patellar instability in 1994. However, the claimant underwent right knee surgery in October, 1996, and the record before the Commission shows that the claimant suffered no further problems with right patellar instability after surgery in 1996, until her accidental injury of September, 1998. Even Dr. Griffin, an orthopaedist, reported on September 21, 1998 that the claimant had not sustained a patellar dislocation since 1996. A recurrence is not a new injury, but is simply a period of incapacitation resulting from a previous injury. Atkins Nursing Home v. Gray, 54 Ark. App. 125, 923 S.W.2d 897 (1996). A recurrence exists when the second complication is a natural and probable consequence of a prior injury. Weldon v. Pierce Bros. Constr., 54 Ark. App. 344, 925 S.W.2d 179 (1996). From this record, we affirm the administrative law judge’s finding that the claimant sustained a new accidental injury as a result of the ladder incident at work, and not a recurrence of her basketball injury of time past. In reaching this conclusion, we are persuaded by the fact that the claimant did not have any further knee problems after the 1996 knee surgery until the ladder incident at work in 1998. To the extent that the respondents argue that the claimant did not do anything “out of the ordinary” to cause her kneecap to dislocate, we point out that there is no requirement under Act 796 for work activity to be “out of the ordinary” in order for a knee injury to arise out of and in the course of employment. Compare, Ark. Code Ann. § 11-9-114(b) (Heart or lung injury). In the present case, the claimant experienced a knee pop, her knee gave way, and she hit the floor while attempting to step off backwards from a ladder. While this activity might not be “out of the ordinary” for the claimant in her work duties, it was nevertheless a work duty. Clearly, the claimant’s injury resulting from that ladder incident arose out of and during the course of the claimant’s employment. [18] Accordingly, based on our de novo review of the entire record, and for the reasons discussed herein, we find that the claimant sustained a compensable injury to her right knee on September 1, 1998, pursuant to the provisions of Act 796 of 1993. We find that medical treatment rendered to the claimant by Dr. Tom Tinsman and Dr. Frankie Griffin was reasonable, necessary, and related to her compensable injury. We thus affirm, in its entirety, the opinion of the administrative law judge. [19] 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). [20] 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 in accordance with Ark. Code Ann. § 11-9-715(b) (Repl. 1996). [21] IT IS SO ORDERED. [22] _______________________________On September 24, 1998, Dr. Griffin assessed “recurrent patellar dislocation/subluxations” and prescribed physical therapy. The physical therapist’s evaluation of the claimant revealed “minimal swelling” in the right knee. Dr. Griffin wrote on October 15, 1998 that the claimant’s “kneecap continues to dislocate laterally.” An MRI taken October 16, 1998 gave the impression of “normal right knee.” Dr. Griffin followed up with the claimant on October 19, 1998 and again assessed “recurrent patellar dislocation/subluxations.”
ELDON F. COFFMAN, Chairman _______________________________ PAT WEST HUMPHREY, Commissioner [23] Commissioner Wilson dissents.