CLAIM NO. E813574
VICKI BROWN, EMPLOYEE, CLAIMANT v. TYSON FOODS, SELF-INSURED EMPLOYER, RESPONDENT
Before the Arkansas Workers’ Compensation Commission
OPINION FILED JANUARY 14, 2000
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the GREGORY GILES, Attorney at Law, Texarkana, Arkansas.
Respondents represented by the ANGELA DOSS, Attorney at Law, Fayetteville, Arkansas.
Decision of the Administrative Law Judge: Affirmed.
OPINION AND ORDER
[1] The respondent appeals an opinion and order filed by the Administrative Law Judge on June 28, 1999. In that opinion and order, the Administrative Law Judge determined that claimant sustained a specific incident injury to her right knee on November 21, 1997. Claimant was awarded temporary total disability benefits from September 4, 1998, through February 8, 1999, and permanent partial disability benefits based upon an impairment rating of 7%. Finally, the Administrative Law Judge determined that claimant was entitled to all reasonable and necessary medical expenses associated with the treatment of her compensable right knee injury. Based on our de novo review of the entire record, we affirm in its entirety the Administrative Law Judge’s opinion.
[2] It is undisputed that on November 21, 1997, claimant sustained a work-related fall. According to claimant’s credible testimony, she fell after her right foot got caught in a cord. Claimant was unable to walk; therefore, she was carried to the nurse’s station by co-workers. She stated that she was in a great deal of discomfort. Although it was difficult to identify the source of the pain, claimant thought that her left leg was broken. She was transported to the company physician, Dr. Harris. He prescribed Naprosyn, and released claimant to return to work. She testified that she did not need additional medical care for the treatment of her left knee.
[3] Claimant testified that initially, her left knee was more symptomatic than the right one. She stated that she began experiencing episodes of her right knee “giving way.” After an episode resulted in claimant falling to the ground, she presented to Wadley Regional Medical Center. This occurred on January 19, 1998. Dr. Paul Meredith completed a patient history, which mentioned a work-related fall. She described episodes of popping, and her knee “giving way.” Dr. Meredith ordered claimant to use an Ace bandage at work, and prescribed medication.
[4] Claimant’s symptoms increased, as reflected in a chart note dated February 18, 1998. Dr. Meredith ordered x-rays, which were normal. On February 20, 1998, he referred claimant to Dr. J.E. Keever, an orthopedist. Dr. Keever examined claimant on February 25, 1998. Again, claimant related a history of a work-related fall occurring in November of 1997. Dr. Keever noted a “positive apprehension sign on the right.” He stated that testing showed “that her right knee does have a very significant tilt compared to the left knee.” With respect to the significance of this finding, Dr. Keever stated that “[r]ealistically, I think this represents a symptomatic subluxation of her patella.” According to Dorland’
Illustrated Medical Dictionary, 27th Edition, the term subluxation refers to an incomplete or partial dislocation. Dr. Keever stated that claimant could continue working. He encouraged her to use the rehabilitation brace, and prescribed physical therapy.
[5] On April 1, 1998, Dr. Keever stated that claimant needed a MRI, probably followed by arthroscopic surgery. The MRI, conducted on July 6, 1998, was normal. Claimant’s symptoms persisted and on July 22, 1998, she reported “buckling, catching, giving-way, and effusions.” On September 17, 1998, Dr. Keever performed arthroscopic surgery. His operative report reflected:
. . . There was marked lateral positioning of the patella, as seen from the anterolateral portal and it was viewed from the superior lateral portal. It was quite interesting that there was an overlapping lateral facet that obviously was taking most of the stress of the knee when in flexion, even though there was reasonably good centering of the patella in the groove on full flexion. Accordingly, the lateral release was carried out through a lateral peripatellar incision and the later 5 millimeters of the patella was removed with a micro-oscillating saw. This gave a very nice decompression of the lateral patellofemoral joint. . . .
Dr. Keever’s post-surgical diagnosis was “lateral compression syndrome, right knee.” And, in a chart note dated September 21, 1998, he explained his surgical findings: “At the time of surgery she did have significant overhanging area and was treated by partial lateral fasciectomy and lateral release.”
[6] Dr. Keever was asked to complete a “Physician’s Workers’ Compensation Questionnaire,” which he did on November 23, 1998. He opined that a causal connection existed between claimant’s fall and her right knee problems. In order to respond to the questions, Dr. Keever also attached copies of chart notes. Included was a note dated February 25, 1998. It is clear from reviewing the chart note that Dr. Keever knew that initially claimant’s left knee “was the most symptomatic.” Although her left knee symptoms completely resolved, claimant’s right knee problems increased.
[7] In a letter to claimant’s counsel dated March 1, 1999, Dr. Keever outlined the condition of claimant’s knee when he performed surgery:
. . . [claimant] did have a significant intraarticular pathology noted at the time of her arthroscopy, consisting of some chondromalacia of the lateral facet of the patella with an over-hanging spur. She underwent lateral retinacular release in an attempt to improve this, but I don’t think it basically changes the fact that she has a significant problem with her knee that will, in my opinion, be a life-time limitation.
Liability has been accepted for a medical-only injury to claimant’s left knee; however, it is the contention of the respondent that claimant did not sustain a compensable right knee injury in the fall occurring on November 21, 1997. It is argued that the absence of a right knee injury is supported by the initial injury report, completed on the date of the fall, which documented only a left knee injury. It is true that the AR-N noted only a left knee injury. However, it does reference the fall. According to the AR-N completed by claimant, the injury occurred at 4:00, and she completed the form at 4:00 as well. Claimant testified that she was in a great deal of pain following the fall. Moreover, she had difficulty pinpointing the origin of the pain. Indeed, claimant was carried to the nurse’s station because she could not walk on either leg. The AR-N indicated that claimant tripped, and started to fall. She stated she had no further memory of the fall. Upon further reflection, claimant remembered that she fell on both knees. This is consistent with the history she furnished to medical providers, and her hearing testimony. Since claimant landed on her left knee, it is logical to conclude that her right knee struck the floor as well. No other scenario makes sense. Otherwise, claimant would have engaged in an acrobatic landing, involving the balancing of her weight on one knee (the left one).
[8] Based on the foregoing, we are not troubled by claimant’s inability to immediately describe the mechanics of the injury when questioned by the company nurse on November 21, 1997. Claimant was in extreme pain. Her left knee was most symptomatic, and this is what she reported.
[9] In reaching our decision, we note that claimant’s credible testimony revealed the existence of no knee problems at all prior to the fall occurring on November 21, 1997. There is no medical evidence in the record to dispute claimant’s testimony. Claimant has shown by a preponderance of the evidence that she injured her right knee in the work-related fall she sustained on November 21, 1997. In our opinion, claimant has satisfied all elements of a compensable specific incident injury.
[10] In so holding, we reject the argument advanced by the respondent on appeal that claimant is unable to satisfy the objective findings requirement. In a report dated February 25, 1998, Dr. Keever noted that merchant views of claimant’s knees showed “a very significant tilt” of the right knee, which he attributed to “a symptomatic subluxation of her patella.” In a chart note dated September 21, 1998, Dr. Keever stated that he treated claimant’s condition by performing a “partial lateral fasciectomy and lateral release.” We specifically find that claimant has satisfied the objective findings requirement.
[11] Claimant also seeks permanent partial disability benefits. In a letter to claimant’s counsel dated March 1, 1999, Dr. Keever addressed claimant’s restrictions and assigned an impairment rating. He recommended that claimant cease working in environments which are slippery and refrigerated. He suggested sedentary work. Dr. Keever imposed permanent restrictions, stating that she should avoid “continuous or even prolonged walking, standing, and any crawling, climbing, or squatting, or kneeling.” He assigned an impairment rating of 7%, using Table 64 of the AMA Guides, 4th Edition. We specifically find that the impairment rating assigned by Dr. Keever comports with the Arkansas Workers’ Compensation Act. Accordingly, claimant is entitled to permanent partial disability benefits based upon the 7% anatomical impairment rating.
[12] Claimant contends that she is entitled to temporary total disability benefits from September 4, 1998, until February 8, 1999. Entitlement to temporary total disability benefits requires claimant to satisfy a two-prong test: (1) claimant must be within her healing period; and (2) completely incapacitated from earning wages. Arkansas Highway Transportation Department v. Breshears,
272 Ark. 244,
613 S.W.2d 392 (1981). The healing period is defined as that period for healing the injury, which continues until claimant is as far restored as the permanent nature of the injury will allow. Nix v. Wilson World Hotel,
46 Ark. App. 303,
879 S.W.2d 457 (1994). In the event that the underlying condition has stabilized and there is no additional treatment that will improve claimant’s condition, the healing period has ended. Id. This question is one of fact for the Commission to resolve.
[13] Temporary total disability is awarded when claimant is incapacitated because of injury to earn the wages she was receiving at the time of the injury. Johnson v. Rapid DieMolding,
46 Ark. App. 244,
878 S.W.2d 790 (1994).
[14] According to the evidence, Dr. Keever opined that claimant was unable to work after September 3, 1998, as a result of her work-related right knee injury. On January 11, 1999, he stated that claimant could work only in a sedentary capacity. Dr. Keever also opined that claimant needed retraining for office work. A follow-up visit for one month was scheduled. Claimant testified that she contacted respondent employer after her appointment with Dr. Keever. She stated that she spoke with Angela DeHaan. According to claimant’s testimony, Ms. DeHaan informed her that no light duty work was available. After notifying Dr. Keever of respondent employer’s position, he amended claimant’s disability status. In a note dated January 11, 1999, Dr. Keever excused her from work until February 8, 1999. Based on the medical evidence and claimant’s credible testimony, we find that claimant has demonstrated entitlement to temporary total disability benefits from September 4, 1998, through February 8, 1999.
[15] Claimant also seeks medical benefits associated with the treatment of her work-related right knee injury. The evidence demonstrated that subsequent to November 21, 1997, claimant’s right knee symptoms increased. Claimant obtained medical care for her symptoms, including a course of conservative treatment. Ultimately, Dr. Keever performed arthroscopic surgery. We find that the medical care claimant obtained was reasonably necessary for the treatment of her compensable right knee injury.
[16] Based on our de novo review of the record, and for the foregoing reasons, we specifically find that claimant sustained a compensable right knee injury on November 21, 1997, and is entitled to related medical benefits, permanent partial disability benefits totaling 7%, and temporary total disability benefits from September 4, 1998, through February 8, 1999.
[17] 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 opinion of the Administrative Law Judge. 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.
[18] IT IS SO ORDERED.
[19] _______________________________
PAT WEST HUMPHREY, Commissioner
[20] Chairman Coffman concurs.
CONCURRING OPINION
[21] I concur in the principal opinion’s findings. I write separately to express my conclusions on the conflicting evidence regarding whether the claimant injured her right knee, in addition to her left knee, in the incident at work, and on the administrative law judge’s award of temporary total disability compensation.
[22] Dr. Keever’s questionnaire responses are the most persuasive medical evidence on the issue of whether the claimant’s right knee problem arose out of the incident at work. Dr. Keever was the claimant’s treating physician, and Dr. Keever performed the arthroscopy on the claimant’s right knee. Dr. Keever’s questionnaire responses attribute the claimant’s problems to a fall at work.
[23] Therefore, it appears to me that the only real question at this point is whether or not the claimant did or did not hurt her right knee in the fall at work, and resolution of this issue depends on the credibility of the claimant’s hearing testimony that she did experience symptoms in her right knee after the fall, even though the more severe symptoms (initially) in her left knee apparently resolved after only one doctor’s visit.
[24] The evidence which would most appear to discredit the claimant’s hearing testimony that she did, in fact, hurt both knees in the fall would appear to be (1) the fact that she only reported a left knee injury on the AR-N completed immediately after the fall at the nurse’s station (2) the doctor’s report from that same date indicating a left knee injury with no mention of the right knee (3) the fact that she did not seek any additional medical treatment for either knee for approximately two months after that one visit (4) the respondents’ initial injury report which likewise only indicates a left knee injury and (5) the fact that the claimant initially turned her right knee treatment in on group insurance (and not workers’ compensation). The evidence most consistent with, or corroborative of, the claimant’s testimony that she sustained a right knee injury, in addition to a left knee injury, in the fall is (1) the fact that all medical reports starting with the right knee treatment in January of 1998 refer the claimant’s right knee problems back to her fall at work (2) the fact that her AR-N and the initial investigation reports were prepared at the time of the fall when her left knee was very painful (3) her testimony that she could not walk on either leg immediately after the fall when she was carried to the nurse’s station by co-workers (4) the fact that the claimant never had any knee problems prior to the fall, and (5) as the principal opinion notes, the fact that it is hard to imagine tripping and falling onto only one knee without also sustaining some degree of trauma to the other knee.
[25] Since Dr. Keever has related the claimant’s problems to a fall, and since there is no evidence of a fall before or after the November incident that would have initiated the claimant’s symptoms, I believe the claimant’s hearing testimony as to what happened, particularly where, as here, (1) only two months elapsed between the incident and her first right knee examination and since (2) it appears that the claimant was experiencing relatively minor right knee symptoms which a reasonable person would have expected to resolve without going back to the doctor (although in this case the right knee did not ultimately resolve).
[26] I also find that the preponderance of the evidence does not support the dissent’s proposal to modify the administrative law judge’s temporary total disability award. The evidence indicates that the claimant worked standing at a production line at the time of the injury. There is no evidence that the claimant could have found any sedentary work anywhere during the one-month period that Dr. Keever tried to release her to sedentary work. Therefore, I also concur in the finding that the claimant proved by a preponderance of the evidence that she remained within her healing period and totally incapacitated to earn during the period in question.
[27] ______________________________ ELDON F. COFFMAN, Chairman
[28] Commissioner Wilson dissents.
DISSENTING OPINION
[29] I respectfully dissent from the finding that claimant has proven by a preponderance of the evidence that she suffered a compensable injury to her right knee and that she is entitled to any workers’ compensation benefits related to her right knee problems.
[30] The Administrative Law Judge in this case found that claimant suffered a compensable injury to her right knee which arose out of and in the course of her employment, satisfying the Act’s requirement that claimants seeking benefits must prove by a preponderance of the evidence that the injury arose out of and in the course of the employment. Deffenbaugh Indus. v Angus,
313 Ark. 100,
852 S.W.2d 804 (1993). “Arising out of the employment” refers to the origin or cause of the accident while the phrase “in the course of the employment” refers to the time, place, and circumstances under which the injury occurred.
Id., Jones v. Cityof Imboden,
39 Ark. App. 19,
21,
832 S.W.2d 866 (1992) (
citingFranklin Collier Farms v. Bullard,
33 Ark. App. 33,
800 S.W.2d 438 (1990); Moore v. Darling Store Fixtures,
22 Ark. App. 21,
732 S.W.2d 496 (1987); Gerber Products v. McDonald,
15 Ark. App. 226,
691 S.W.2d 879 (1985); Owens v. National Health Laboratories,Inc.,
8 Ark. App. 92,
648 S.W.2d 829 (1983)). There is no doubt that, if claimant actually injured her right knee when she fell on November 21, 1997, her fall arose out of and in the course of her employment. The important question is whether she actually injured her right knee on November 21, 1997. I cannot find that claimant proved by a preponderance of the evidence that her injury to the right knee — subluxation of her patella — occurred on November 21, 1997.
[31] The medical records indicate that claimant did not mention her right knee pain when she was carried to the nurse’s station and examined there on the date of her injury, November 21, 1997, when she signed her original Form N, or when she was examined and x-rayed by Dr. Harris on the date of her injury. Claimant’s first mention of right knee pain was on January 19, 1998, almost exactly 2 months after the original injury. There is no explanation in the record for how such a painful (according to claimant) injury could be neglected for almost two whole months without mention to her physicians or her work place nurses or supervisors.
[32] In claimant’s testimony she stated that both knees hurt immediately after her fall, but that the left knee hurt worse. I cannot believe that there is no mention of her right knee pain in any of the notations concerning claimant’s injury, if she indeed brought it up. I further cannot believe that if she fell on both knees, sustaining a deep left knee contusion and dislocating her right knee cap, that she would not have mentioned her right knee pain. She did testify that she had right knee pain immediately after her fall. Of course, she also testified that she did not mention her right knee because it “wasn’t hurting at the time,” and that she knew she was supposed to indicate on the form N which body parts were hurting.
[33] Another set of inconsistencies is found in the variety of statements of injury and form Ns existing in the record. Claimant filled out two different form Ns, on the date of the accident — November 21, 1997, indicating an injury to her left knee, and on October 12, 1998, indicating an injury to both knees on December 7, 1997 (the date of injury was changed to November 21, 1997 by Margie Richardson per claimant’s telephone request). She filled out two different statements of injury as well, on February 26, 1998, indicating injury to both knees and that Jay and Elizabeth Lee were witnesses, and on October 12, 1998, indicating that claimant injured both knees on December 7, 1998 and that Ms. Miles and Lee were witnesses, (the date of injury was changed to November 21, 1998 by Margie Richardson per claimant’s telephone request). There is a notation on the October 12, 1998 statement of injury that claimant’s “witness said she did not see her fall and could not make a statement.”
[34] The company nurse’s Individual Encounter report and her Referral and Treatment Authorization dated November 21, 1997, concerning claimant’s injury on that date, reflect that claimant fell on her left knee, and claimant’s supervisor’s report of injury also prepared November 21, 1997 indicates that claimant injured her left knee.
[35] Lastly, claimant was aware that her work-related injury was originally treated by the company doctor, and she testified that she thought her right knee pain was related to her work-related injury, yet she chose to charge her own health insurance with her right knee treatment because she did not know “exactly” what was wrong with her knee. I find that difficult to credit.
[36] While it is clear that claimant’s November 21, 1997 accident arose out of and in the course of employment, there is a paucity, not a preponderance, of evidence showing that claimant hurt her right knee on that date. Therefore claimant is not entitled to any benefits arising out of her right knee injury.
[37] Furthermore, even if claimant was entitled to benefits, which she is not, due to a compensable injury to her right knee, I would not award temporary total benefits to claimant after January 11, 1998. Dr. Keever released her to sedentary work on January 11, 1998, and then took her off work later that day after claimant returned to him to say that she was told there was no sedentary work available. I cannot believe that claimant’s ability to work at sedentary employment disappeared in the time it took claimant to get the second note from Dr. Keever. I would award temporary total benefits only until January 11, 1998 if I found that claimant suffered a compensable injury and was entitled to such benefits, which she did not and is not.
[38] For the foregoing reasons, I respectfully dissent from the majority opinion.
[39] ___________________________ MIKE WILSON, Commissioner
