GOSS v. BAKER ENGINEERING, 2002 AWCC 127

CLAIM NO. E910877

TONY GOSS, EMPLOYEE, CLAIMANT v. BAKER ENGINEERING, EMPLOYER, RESPONDENT, AMERICAN INTERSTATE INSURANCE COMPANY, INSURANCE CARRIER, RESPONDENT

Before the Arkansas Workers’ Compensation Commission
OPINION FILED JUNE 19, 2002

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

Claimant represented by the HONORABLE LAURA J. McKINNON, Attorney at Law, Fayetteville, Arkansas.

Respondents represented by the HONORABLE MICHAEL E. RYBURN, Attorney at Law, Little Rock, Arkansas.

Decision of the Administrative Law Judge: Reversed.

OPINION AND ORDER
The claimant appeals to the Full Workers’ Compensation Commission an Administrative Law Judge’s opinion filed December 5, 2001. The Administrative Law Judge found that the claimant failed to prove by a preponderance of the evidence that he sustained a compensable injury while working for the respondents on July 19, 1999. After reviewing the entire record de novo, the Full Commission reverses the opinion of the Administrative Law Judge. We find that the claimant proved by a preponderance of the evidence that he sustained a compensable injury on July 19, 1999.

I. HISTORY
Tony Goss, age 35, began working for the respondent employer around August 1997. Mr. Goss testified that he injured his right shoulder and collarbone in an automobile accident occurring in January 1999. The claimant said it was “possible that my knee bumped into the dash,” but that his right knee was not injured in the motor vehicle accident. The respondent carrier went “on the risk” on April 16, 1999.

The claimant testified that on July 14, 1999, a dog jumped a fence and attacked him. “I fell back, and it was kind of a hyperextension. . . . I jumped back and he fell right at my feet. And I hit him with my computer that I carry because he went to bite me, and I hit him. . . . the woman saw me slapping her dog . . .” The claimant said that he missed no work as a result of this incident.

The parties stipulated that the employer-employee relationship existed on July 19, 1999. The claimant testified that he was meter reading on July 19, 1999, “and on my way back to the vehicle the dogs were jumping at me trying to bite me. . . . They were jumping at me trying to bite me, and he made a lunge for me, and whenever he did, I stuck my Itron out, and I stepped to the right, and that’s when I stepped in the hole. . . . it pulled my knee back and I fell forward, fell on the ground, fell on my face, and my Itron slid across the ground. . . . It just felt like my knee had been ripped completely back this way.”

The claimant presented to Dardanelle Family Clinic on July 20, 1999. It was noted that the claimant was a meter reader. The claimant reported that his right knee was bothering him, that he had been in an accident the previous January, and that he had “stepped in hole yesterday.” The physician noted “some sub-patellar crepitance” upon physical examination. The claimant was treated with physical therapy, medication, and a brace.

The claimant was eventually referred to an orthopaedist, Dr. W. Bruce Brown, who reported on August 2, 1999:

Tony is a 33 year old meter reader who two weeks ago had a dog jump on his leg in which he hyperextended his knee and then a week ago stepped off a curb with increasing pain and was unable to weightbear until just the last two days. He has had previous history of an injury in January when he hit the dash of his car but does not feel he was symptomatic and he has not had any reason to believe it has been ongoing since then. . . .
X-rays are negative for a fracture or abnormal patellar positioning.
IMPRESSION: Rule-out anterior cruciate ligament injury vs articular vs meniscal pathology.

Dr. Brown recommended evaluation with an MRI. The claimant was also placed on light duties and treated conservatively. An MRI of the right knee was taken August 17, 1999:

MRI shows the patient to have normal anterior and posterior cruciates. The patellar tendon is normal in contour and signal. The menisci are normal in contour. There is some signal in the posterior horn of the medial meniscus that does not communicate with the articular surface. This signal is felt to be that of mucoid etiology.
IMPRESSION: Negative MRI of the right knee showing medial collateral and lateral collateral ligaments intact.

Dr. Brown followed up with the claimant on August 19, 1999:

Tony is here today with evaluation of his knee. His MRI does demonstrate no evidence of ACL injury. He does have what appears to be Type II degeneration of the posterior horn of his medial meniscus with most of his pain today laterally over the IT band and hopefully this is just IT band tendinitis. He does relate that he walked for years with a stirrup brace and since he has stopped doing that, his knee has become more painful so this may well also be related to indirect irritation of the IT band. I have recommended that we try to return to regular duties for half day and light duty for half day. He will continue work with stretching program to see if we can gradually progress him back to full activity. He will followup with us for reevaluation in two weeks, and hopefully he will be returned to full activity then.

Dr. Brown reported on September 2, 1999:

Tony follows up today. He apparently decreased his PT because the pain is not improving. He still has difficulty with his work and feels his knee hyperextends. On exam today, to me it still feels as if he has an ACL laxity with Grade I Lachman. He has joint line tenderness with squatting and McMurray’s testing. My feeling is that he may well have either articular cartilage damage or meniscal pathology. I have recommended that he consider arthroscopic evaluation and this is tentatively scheduled for next week pending work comp approval. This was discussed with him and he will continue to work in the interim until this is scheduled.

Dr. Brown scheduled an arthroscopic evaluation for the next day. However, the respondents apparently sent the claimant to another orthopaedist, Dr. Russell Allison, who wrote to Dr. Brown on September 10, 1999:

I saw Tony Goss as a second opinion today, a 33-year-old who injured his knee approximately one month ago who continues to have knee pain. You have seen him on several occasions; he has completed a course of physical therapy and had an MRI of his knee. However, he does not seem to be improving. He has no effusion today and has some mild tenderness on the anterior and lateral most part of joint line. He has a stable knee at the anterior, posterior, medial and lateral stresses. I have told him that since he is not improving and he has been through a course of therapy that it is very reasonable to proceed with a arthroscopy of the knee. We would have a much better chance of finding pathology that he has had on his MRI and I will fax a letter to his worker’s comp as soon as possible agreeing with your treatment choice.

Dr. Brown reported on September 14, 1999:

Tony is here again having been denied by his work comp insurance. He apparently has been told it is because I have dictated that he wore a stirrup brace on his knee and for the record I would state that the stirrup brace was on his ankle and not his knee, and my only consideration for this potentially being the source of his knee pain was that he had made a change in not wearing the brace. I do not feel the brace is directly related to any injury to his knee. I do feel that he has had several episodes to include a MVA, hyperextension episode with a dog jumping on him that any of which could present with difficulty in the knee pain that he is currently experiencing. I do not feel that there is any substitution for an arthroscopy as we have not been able to relieve his pain with conservative treatment. The MRI does show an abnormal medial meniscus and would not be surprised to find a tear at this level that would be symptomatic. I have informed him that he needs to discuss with his insurance company what the further steps are. He will followup with us on a PRN basis.

Dr. Brown released the claimant to full work activities on September 17, 1999. Dr. Brown noted on October 5, 1999 that the claimant had returned to work.

The claimant testified regarding another incident occurring January 14, 2000. While reading meters, “I was coming back from the third house a little girl ran up and kicked me. She acted like she was mentally disturbed, and she was keeping me from getting into my vehicle. Every time I’d go to go around her, she would step in front of me, and she just hauled off and kicked me.” The claimant presented to Dardanelle Family Clinic on January 14, 2000, stating that his right knee was re-injured after sustaining a kick on the outside of his knee. The physician assessed “contusion/strain” of the right knee and referred the claimant back to orthopaedics.

The claimant presented to Dardanelle Hospital on November 30, 2000. The nursing observations indicated that the claimant, a meter reader, had “strained himself” the previous day while opening a gate that was “rotten.” The claimant also reported that two weeks earlier, a “ram” had attacked him on the right side. A physician diagnosed “left indirect inguinal hernia,” “abdominal muscle strain,” and “left knee strain.” The claimant testified that his boss offered him a $100.00 bonus “if I would go out there at night and kill the sheep.” However, the claimant also testified that the respondents eventually terminated his employment, because of the alleged incident involving the ram.

Mr. Goss claimed entitlement to workers’ compensation. The claimant contended that he sustained a compensable injury to his knee on July 19, 1999. The claimant contended that he was entitled to temporary total disability compensation, reasonably necessary medical treatment, and an attorney’s fee.

After a hearing before the Commission, the Administrative Law Judge filed an opinion on June 13, 2001, and found that there were no “objective findings” to support a claim for compensability. The Administrative Law Judge therefore denied and dismissed the claim, and the claimant appealed to the Full Commission.

In an order filed October 29, 2001, the Full Commission vacated the Administrative Law Judge’s decision and remanded for the Administrative Law Judge “to analyze the entire record, and to make more adequate findings of fact thereafter.” The Administrative Law Judge filed another opinion on December 5, 2001. The Administrative Law Judge essentially determined that objective testing yielded no objective findings, but that even if there were objective findings, there was no causal connection between those findings and the claimant’s accidental injury. The Administrative Law Judge denied and dismissed the claim; claimant appeals to the Full Commission.

II. ADJUDICATION
A claimant has the burden of proving the compensability of his claim by a preponderance of the evidence. Georgia-Pacific Corp. 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(4)(A)(i) (Supp. 2002). For an accidental injury to be compensable, the claimant must show that he sustained an accidental injury; that the injury caused physical harm to his 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(4)(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).

In the present matter, the Full Commission finds that the claimant proved by a preponderance of the evidence that he sustained an accidental injury to his right knee on July 19, 1999. The Dissenting Opinion
suggests that the claimant’s knee condition was the result of the January 1999 automobile accident. The determination of the credibility of the witnesses and the weight to be given their testimony are matters exclusively within the province of the Workers’ Compensation Commission.Cooper v. Hiland Dairy, 69 Ark. App. 200, 11 S.W.3d 5 (2000). Moreover, the Commission may not arbitrarily disregard the testimony of any witness. Crow v. Weyerhaeuser Co., 46 Ark. App. 295, 880 S.W.2d 320
(1994). The present claimant, who the Full Commission finds was a credible witness, testified that he injured his right shoulder and collarbone in the January 1999 motor vehicle accident; the claimant did not injure his right knee at that time.

The claimant credibly testified that while performing his work duties on July 19, 1999, he accidentally stepped into a hole while trying to avoid a lunging dog. The claimant testified, “It just felt like my knee had been ripped completely back this way.” The claimant presented to a physician on July 20, 1999, and the record from that date indicates that the claimant “stepped in hole yesterday.”

The Dissenting Opinion asserts that the claimant failed to prove that he sustained a compensable injury, because Dr. Brown signed a form in January 2001 indicating that the claimant’s accidental injury occurred on January 14, 1999 rather than five days later on January 19, 1999. The record indicates that Dr. Brown began treating the claimant in August 1999, and Dr. Brown’s notes from that time corroborate the claimant’s account of an injury sustained while trying to avoid an approaching dog. Dr. Brown opined in September 1999 that the July 19, 1999 incident was a factor in the claimant’s complaints of pain. The Full Commission therefore finds from Dr. Brown’s notes and a preponderance of the other evidence that the claimant sustained an accidental injury on July 19, 1999, which caused physical harm to his body, which arose out of and in the course of his employment with the respondents, and which required medical services and resulted in disability.

The preponderance of evidence also indicates that the claimant established the July 19, 1999 accidental injury by medical evidence, supported by objective findings. A physician physically examined the claimant’s knee on July 20, 1999 and reported “sub-patellar crepitance.” This is an objective medical finding, beyond the claimant’s voluntary control. See, Roberts v. Baxter International, Workers’ Compensation Commission E714829 (April 12, 2001); Jordan v. Wal-Mart Stores, Inc., Workers’ Compensation Commission E415504 (July 31, 1998).

In addition, Dr. Brown examined the claimant on September 2, 1999 and reported “it still feels as if he has an ACL laxity with Grade I Lachman.” The Administrative Law Judge cited Francis v. GaylordContainer Corp., 341 Ark. 527, 20 S.W.3d 280 (2000), and found that since Dr. Brown wrote “as if” in his report, then Dr. Brown’s “opinion” was not “stated within a reasonable degree of medical certainty.” The Administrative Law Judge erred as a matter of law. Dr. Brown’s September 2, 1999 report was not a medical opinion addressing causation. Rather, Dr. Brown’s September 2, 1999 report was an express medical finding based on his physical examination of the claimant. The Dissenting Opinion
contends that Dr. Brown’s report of “ACL laxity” was merely a possible diagnosis and not an objective medical finding. The Commission is authorized to accept or reject medical opinion and is authorized to determine its medical soundness and probative force. Green Bay Packingv. Bartlett, 67 Ark. App. 332, 999 S.W.2d 692[999 S.W.2d 695] (1999). Based on the preponderance of evidence before us, the Full Commission finds that the report of “ACL laxity” by the treating orthopaedist constitutes an objective medical finding. See, Parker v. Temperance HillLogging, Workers’ Compensation Commission F013379 (February 12, 2000).

Based on our de novo review of the entire record, the Full Commission reverses the opinion of the Administrative Law Judge. We find that the claimant proved by a preponderance of the evidence that he sustained a compensable injury to his right knee on July 19, 1999. We find that the claimant proved that he was entitled to temporary total disability compensation for a two-week period in September 1999, and that the claimant proved that he was entitled to reasonably necessary medical treatment. 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, the 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
(Repl. 1996).

IT IS SO ORDERED.

______________________________ ELDON F. COFFMAN, Chairman
______________________________ SHELBY W. TURNER, Commissioner

Commissioner Yates dissents.

DISSENTING OPINION

JOE E. YATES, Commissioner

I respectfully dissent from the majority opinion and would affirm the decision of the Administrative Law Judge to deny and dismiss this claim, as I find that the claimant failed to prove by preponderance of evidence that he sustained an accidental injury, caused by a specific incident on July 19, 1999, and established by medical evidence supported by objective findings.

The claimant alleges that he is entitled to benefits as a result of an injury sustained on July 19, 1999. However, the evidence shows that the claimant has had several injuries to this same knee, including: a motor vehicle accident in January 1999; an attack by a jumping dog on July 14, 1999; being kicked by a child in January 2000; and being butted by a ram in November 2000.

A clinic report of July 20, 1999, notes that the claimant’s right knee had been bothering him since a motor vehicle accident in January 1999. This report assesses the claimant as having chondromalacia patelae, a condition of the patella characterized by the subjective findings of tenderness and pain, and questions whether this condition is related to the motor vehicle accident.

Dr. Brown’s report of September 14, 1999, also acknowledges that the motor vehicle accident could be the cause of the claimant’s present difficulty; while recognizing the dog jumping incident and the hole fall incident as potential causes as well.

Further, a January 25, 2001, letter, written on the claimant’s attorney’s letterhead and signed by Dr. Brown, states that claimant’s injury on July 14, 1999, (not July 19, 1999) was the major cause of the claimant’s need for treatment. For these reasons I find that the claimant failed to prove that his alleged injury was the result of a specific injury occurring on July 19, 1999.

With regards to the medical evidence supported by objective findings, I disagree with the majority opinion’s characterization of Dr. Brown’s September 2, 1999, report of ACL laxity as an objective finding. My interpretation of this record in it’s entirety suggests that this is merely a possible diagnosis, which Dr. Brown is recommending surgery to confirm. I am further unpersuaded by the simplistic form letter of January 25, 2001, apparently drafted by the claimant’s attorney, which recites that Dr. Brown’s “opinion” is “[b]ased on objective medical findings” without setting forth specifically what those findings are.

The claimant’s MRI and x-rays were normal, and no other medical provider, in the course of 19 visits to medical providers, made an observation of crepitance after that initial exam on July 20, 1999. I therefore cannot find that the claimant proved by a preponderance of the evidence that he sustained a specific incident injury established by medical evidence supported by objective findings, and respectfully dissent from the majority opinion.

_____________________________ JOE E. YATES, Commissioner