KALB v. KROGER COMPANY, 2001 AWCC 112

CLAIM NO. E815412

STEPHANIE M. KALB, EMPLOYEE, CLAIMANT v. KROGER COMPANY, EMPLOYER, RESPONDENT, CONTINENTAL CASUALTY COMPANY, INSURANCE CARRIER, RESPONDENT

Before the Arkansas Workers’ Compensation Commission
OPINION FILED MAY 17, 2001

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

Claimant represented by HONORABLE DODDRIDGE DAGGETT, Attorney at Law, Marianna, Arkansas.

Respondent represented by HONORABLE WENDY S. WOOD, Attorney at Law, Little Rock, Arkansas.

Decision of Administrative Law Judge: Affirmed.

OPINION AND ORDER
Respondents appeal to the Full Commission an Administrative Law Judge’s opinion filed January 4, 2001. The Administrative Law Judge found that claimant’s requested medical treatment is reasonable and necessary to treat her admittedly compensable injury. After a de novo review of the entire record, the Commission affirms the decision of the Administrative Law Judge. We find that claimant has proved by a preponderance of the evidence her entitlement to reasonable and necessary medical treatment related to her compensable injury.

Respondents argue that claimant’s need for medical treatment stems from a pre-existing illness and not her compensable injury. Claimant, a high school senior at the time she injured her knee, was an all-around sports player and participated in gymnastics and softball competitions. She admitted that she hyperextended her left knee as a highschool freshman and wore a brace, but stated she had no further problems with that knee.

I. HISTORY

Claimant, a cashier for respondent-employer, testified that she twisted her knee on December 20, 1998, while lifting cokes from a customer’s cart.

I was scanning groceries across the scanner. And I’ve memorized all the numbers on the cokes so — you know, instead of picking them up. But Paul said there was a new rule that, says, you know, I think we had cameras or something, getting stored in, because they had — we had a problem with people stealing. So we would have to bend down to the bottom of the groceries and pick them up and scan them, so the cameras could see us scanning. And that’s what I did. I was bent down, and when I had bent, whenever I raised to stand up, I turned to my left side, and it felt like my knee went back and over to my left. I felt that my — something in my knee. I think it was my bone or something. It went back and over to my left side, and ever since then that’s when my knee was hurting, from that night on.

(Record, pgs. 13, 15).

Claimant stated that a knot developed on the back of her left knee that night and she reported it to Lee Thompson, her immediate supervisor, the next day. Mr. Thompson told claimant to call Paul Martin, the general store manager, who sent claimant to Dr. Bell. Dr. Bell referred claimant to Dr. John Wilson who referred claimant to Dr. Herbert Hahn. Claimant received about nine weeks of physical therapy and returned to light duty during this time. Claimant ultimately returned to full duty and stated she has continued to have pain in her left knee since the date of her compensable injury.

Although respondents argue that they were not aware of claimant’s continued pain, claimant testified that Mr. Martin would sometimes carry her down stairs when she was having problems negotiating the stairs. Claimant did testify that between January of 1999, and May of 1999, she did not continue to complain to her supervisors of pain. She stated that Mr. Martin informed her that he would not pay her medical bills.

Did you have a conversation along this line with her that “This bill comes out of my back pocket. It counts against my store’s profit-and-loss statement,” or anything like this, and “This counts against me”?

All the bills do, yes, sir.

Okay. So you did have a conversation with her so that you told her that “This medical bill counts against my store’s profit-and-loss ratio,” or something to that effect?
Yes, sir, but I have no control over what the company wants to pay.

Claimant terminated her employment with respondent-employer in May of 1999.

II. ADJUDICATION

Employers must promptly provide medical services which are reasonably necessary for treatment of compensable injuries. Ark. Code Ann. §11-9-508(a). Injured employees have the burden of proving, by a preponderance of the evidence, that medical treatment is reasonably necessary for treatment of the compensable injury. Ark. Code Ann. §11-9-705 (a)(3) (repl. 1996); Jordan v. Tyson Foods, Inc., 51 Ark. App. 100, 911 S.W.2d 593 (1995). What constitutes reasonably necessary medical treatment is a question of fact for the Commission Gansky v. Hi-Tech Engineering, 325 Ark. 163, 924 S.W.2d 790 (1996); Air Compressor Equipment v. Sword, 69 Ark. App. 162, 11 S.W.3d 1 (2000).

Questions of credibility and the weight and sufficiency to be given evidence are matters within the province of the Workers’ Compensation Commission. Swift-Eckrich, Inc. v. Brock, 63 Ark. App. 118, 975 S.W.2d 857 (1998).

Medical treatment intended to reduce or enable an injured worker to cope with chronic pain attributable to a compensable injury may constitute reasonably necessary medical treatment. Tina Haskins v. TEC, Full Workers’ Compensation Commission, June 20, 1991 (D704562). An employer may also remain liable for medical treatment reasonably necessary to maintain a claimant’s condition after the healing period ends. Artex Hydrophonics, Inc. v. Pippin, 8 Ark. App. 200, 649 S.W.2d 845
(1983).

It is undisputed that claimant suffered a compensable injury on December 20, 1998. At issue is whether arthroscopic surgery is reasonably necessary treatment of claimant’s compensable injury. Respondents argue that claimant’s need for surgery is not related to her compensable injury and that they are, therefore, not liable for associated costs.

Respondent-carrier’s witness testified that the respondent paid claimant’s physical therapy bills for January and February of 1999, and that claimant contacted them on October 14, 1999, to inform them of her continuing pain.

Dr. Wilson initially noted on January 7, 1999, that claimant did not need surgery for her compensable injury:

This lady is having more problems laterally than she does medically and the only MRI findings is the possibility of a small tear medially. I have explained to her that she does not have an operative problem.

(Claimant’s Ex. 1., p. 6). Dr. Wilson was aware of claimant’s previous knee problems at the time he rendered this opinion. Despite Dr. Wilson’s opinion, he referred claimant to Dr. Hahn who opined that arthroscopic surgery was necessary to help improve claimant’s medical condition. Surgery was scheduled for November of 1999, and February of 2000, but was not performed because respondents refused to pay for associated costs.

Dr. Hahn opined on August 28, 2000:

Ms. Kalb has a history of an acute twisting injury to the left knee on the job 12-17-98. She was evaluated by Dr. John Wilson in Helena, AR. Examination as performed and physical therapy and MRI recommended. MRI suggests a small medical meniscus tear of the left knee posterior horn. She had a prior history of a popliteal cyst. Surgery was scheduled for arthroscopy of the left knee in November 1999 and February 2000 but also was not performed. The surgery is planned to be directed at the resolution of the symptoms brought on by the acute twisting injury of the left knee, probably due to the medial meniscus tear, and hopefully the arthroscopy would make more clear whether this process was an acute injury or a chronic problem. (emphasis added).

(Claimants Ex. 2, p. 1).

Dr. Hahn wrote on January 21, 2000:

In answer to your request regarding my patient Stephanie Kalb, she did have an aggravation of the left knee process with prior history of popliteal cyst. She does give a history of acute injury on the job which I believe produced this present process. There may have been an underlying abnormality with the knee such as a small meniscus tear. There is no way to say one way or the other. (emphasis added).

(Respondents Ex. 1, p. 25).

Dr. Hahn appeared to have earlier provided a contradictory opinion when he signed (on March 3, 2000) a statement prepared by respondent-carrier on February 28, 2000:

Ms Kalb had an underlying state of pathology/process prior to her work-related injury of 12/17/98.
You concur with Dr. John Wilson that Ms. Kalb did reach MMI on 4/15/99.
In your medical opinion, Ms. Kalb’s current symptoms are a result of the underlying state of pathology/process and not the result of the acute work injury of 12/17/98.

(Respondent’s Ex. 1, p. 26).

Dr. Hahn consistently opined in his January 21, 2000, and August 28, 2000, letters, that claimant’s left knee surgery is needed to treat her work-related compensable injury. The preponderance of the evidence indicates that arthroscopic surgery is reasonably necessary to treat claimant’s compensable injury. We find that Dr. Hahn’s August 28, 2000, letter was meant to clarify respondent-carrier’s letter that he signed on March 3, 2000.

While respondents claim that claimant’s surgery could be necessitated by many other reasons, there was no evidence to suggest that claimant re-injured her knee after her compensable injury.

Based on the aforementioned evidence and for the reasons stated herein, the Full Commission finds that arthroscopic surgery of claimant’s left knee is reasonably necessary and that all such benefits should be paid by respondents.

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 in accordance with Ark. Code Ann. § 11-9-715 (Repl. 1996).

IT IS SO ORDERED.

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

Commissioner Wilson dissents.