THOMAS v. MAGNETEK, 1998 AWCC 244

CLAIM NOS. E610090 and E610091

LOIS THOMAS, EMPLOYEE, CLAIMANT v. MAGNETEK, EMPLOYER, RESPONDENT and ITT SPECIALTY RISK SERVICES, INC., INSURANCE CARRIER, RESPONDENT

Before the Arkansas Workers’ Compensation Commission
OPINION FILED June 19, 1998

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

Claimant represented by the HONORABLE LORIANE PICKELL, Attorney at Law, Fayetteville, Arkansas.

Respondents represented by the HONORABLE CURTIS L. NEBBEN, Attorney at Law, Fayetteville, Arkansas.

Decision of Administrative Law Judge: Affirmed.

[1] OPINION AND ORDER
[2] The respondents appeal an opinion filed by an administrative law judge on October 14, 1997. The administrative law judge found that the claimant has proven that she is entitled to additional medical treatment for her left knee. After reviewing the entire record de novo, we affirm the decision of the administrative law judge. [3] The parties stipulated that the claimant sustained a compensable injury to her left knee on August 15, 1995. The claimant testified that her left knee “snapped” when she tripped over a mat and ran into a machine. The claimant presented to Mediquik Walk-In Clinic on August 21, 1995. The doctor found the claimant’s left knee to be swollen, and he diagnosed sprain of the left knee. Dr. David Mullins opined that the claimant could resume light duties on August 28, 1995, with no prolonged standing. The claimant was provided a knee brace and crutches. The claimant returned to work for the respondent-employer performing a “sit-down job,” but she testified that she continued to have problems with her knee, particularly when walking. Dr. Kenneth Koehn released the claimant on September 25, 1995. He allowed the claimant to return to regular duties, but he advised her to be cautious about standing all day or rapidly walking. In October, 1995, in addition to her regular employment, the claimant began part-time employment at Hardee’s. [4] The parties stipulated that the claimant sustained another compensable injury to her left knee on June 21, 1996. An individual driving a forklift vehicle inadvertently pushed a pallet onto the claimant’s knee. Dr. Joe Rouse diagnosed a contusion of the left knee, but he opined that no treatment was needed and released the claimant. The claimant returned to work the next day, and she continued to work until being terminated on July 23, 1996. After being terminated, the claimant began working full-time at Hardee’s. The claimant asserted that she still felt chronic, acute pain in her left knee after leaving the respondent-employer. [5] The claimant did not seek further medical treatment until returning to Dr. Rouse on February 14, 1997. The claimant explained that financial and transportation problems previously precluded her from seeking treatment. The claimant had lost her primary job and her residence, and she had extensive automobile problems. The claimant told Dr. Rouse that her knee pain had “never really gone” since her 1996 injury. Dr. Rouse opined that chondromalacia was present in the claimant’s left knee. Dorland’sIllustrated — Medical Dictionary, 28th Edition, defines “chondromalacia” as softening of the articular cartilage, most frequently in the patella. Dr. Rouse referred the claimant to Dr. Tomlinson, an orthopaedic surgeon, for a second opinion. Dr. Tomlinson’s impression was possible medial meniscus tear, left knee. Dr. Tomlinson corresponded in June, 1997:

Ms. Lois Thomas is seen back following an MRI scan of her left knee. It shows lateral patellar subluxation, moderate, with a tear of the medial parapatellar retinaculum. Her menisci are normal.
Impression: Lateral patellar subluxation with chondromalacic changes, traumatic.
Discussion: It sounds like Lois had an acute traumatic event to her left knee and a subsequent lateral patellar subluxation/dislocation. She has developed chondromalacicd changes in the lateral patellar facet.
Because her Q-angle is only 10, I think she would do well with a proximal extensor mechanism realignment. We cannot resurface the patella, however, if we improve her tracking, I think her symptoms will improved (sic). I would put her in a hinged brace following this, and I would also use a muscle stim unit to increase her VMO tone as quickly as possible. I think this will significantly help her. I am not sure if it will make her knee completely asymptomatic.

[6] In August, 1997, Dr. Tomlinson reported that the claimant “probably has subluxed her patella laterally again.” He recommended a VMO advancement and arthroscopy. The claimant opted to wait for this procedure until the Commission decided whether or not her condition was compensable. After a hearing, the administrative law judge found that the claimant is entitled to additional medical treatment on her left knee. Respondents appeal. [7] In the event of a work-related injury, it is the duty of the respondent-employer to provide medical services that are “reasonably necessary in connection with the injury received by the employee.” Ark. Code Ann. § 11-9-508(a) (Repl. 1996). In assessing whether a given medical procedure is reasonably necessary, we analyze both the proposed procedure and the condition it is sought to remedy. Deborah Jones v. Seba, Inc., Full Workers’ Compensation Commission, December 12, 1989 (D511255). Treatment intended to reduce or enable a claimant to cope with chronic pain attributable to a compensable injury may constitute reasonably necessary medical treatment. BillyChronister v. Lavaca Vault, Full Workers’ Compensation Commission, June 20, 1991 (D704562). [8] We affirm the administrative law judge’s finding that the claimant is entitled to additional medical treatment for her left knee. The claimant sustained compensable left knee injuries in 1995 and 1996. Although the claimant was released with no impairment rating, her doctor advised her to be cautious about prolonged standing or rapid walking. We find that such a warning would not have accompanied an opinion regarding a completely-healed left knee. When she sought additional treatment in 1997, the claimant told Dr. Rouse that her pain had “never really gone” since the compensable injury of 1996. Treatment intended to reduce or enable a claimant to cope with chronic pain may constitute reasonably necessary medical treatment. Dr. Tomlinson, an orthopedist, opined that the claimant had an acute traumatic event to her left knee and a subsequent lateral patellar subluxation/dislocation. He has recommended treatment which he thinks will “significantly help” the claimant. We find that the claimant has shown, by a preponderance of the evidence, that she is entitled to such treatment. [9] The respondents point to the claimant’s weight and her employment at Hardee’s as contributing to her condition. None of the treating physicians ever mentioned the claimant’s weight; on the contrary, Dr. Tomlinson found the claimant to be “healthy” and “well developed.” Further, there is no suggestion of bilateral
knee difficulties, which a reasonable mind would expect if the claimant’s weight was the cause of her problems. Likewise, we find that the record before us does not establish a causal connection between the claimant’s employment at Hardee’s and her adverse knee condition. Speculation and conjecture can never be substituted for credible evidence, no matter how plausible. DenaConstruction Co. v. Herndon, 264 Ark. 791, 575 S.W.2d 151 (1980). [10] The respondents also contend that the administrative law judge erred in failing to apply Ark. Code Ann. § 11-9-509(1) (Repl. 1996) to this claim. Ark. Code Ann. § 11-9-509(1) provides:

The amounts payable or time periods allowable for authorized medical, hospital, and other services and treatment furnished under §§ 11-9-508 — 11-9-516, unless waived by the employer-respondent or approved by the commission and warranted by the preponderance of the evidence on the basis of the record as a whole, are:
(1) Six (6) months if the claimant lost no compensable time from work as a result of his injury.

[11] The claimant lost no compensable time from work as a result of her injuries, and she does not seek temporary disability benefits. Claimant’s last date of injury was June 21, 1996, and she did not seek additional treatment until February 14, 1997, nearly eight months later. Respondents assert that this code section was enacted to prevent extended and prolonged treatment for minor injuries, and they state, “Both of claimant’s injuries fall squarely into this category.” However, since we find that additional medical treatment for the claimant’s compensable knee injuries is warranted, Ark. Code Ann. § 11-9-509(1) does not bar her claim. See, Fields v. Lincoln Manufacturing, Full Workers’ Compensation Opinion, September 2, 1997 (E600663). [12] Accordingly, based on our de novo review of the entire record, and for the reasons discussed herein, we find that the claimant proved, by a preponderance of the evidence, that she is entitled to additional medical treatment for her left knee. Therefore, we affirm the administrative law judge’s opinion. 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 as provided by Ark. Code Ann. § 11-9-715(b) (Repl. 1996). [13] IT IS SO ORDERED.

ELDON F. COFFMAN, Chairman PAT WEST HUMPHREY, Commissioner

[14] Commissioner Wilson dissents. [15] DISSENTING OPINION
[16] I respectfully dissent from the majority’s opinion finding that the claimant is entitled to additional medical treatment for her left knee. Based upon my de novo review of the record, I find that the claimant has failed to meet her burden of proof. [17] Claimant has the burden of proving by a preponderance of the credible evidence that medical treatment is reasonable and necessary. Norma Beatty v. Ben Pearson, Inc., Full Workers’ Compensation Commission, Feb. 17, 1989 (D612291); B.R.Hollingshead v. Colson Caster, Full Workers’ Compensation Commission, Aug. 27, 1993 (D703346). In workers’ compensation cases, the burden rests upon the claimant to establish her claim for compensation by a preponderance of the evidence. Kuhn v.Majestic Hotel, 50 Ark. App. 23, 899 S.W.2d 845 (1995); Bartlettv. Mead Container Board, 47 Ark. App. 181, 888 S.W.2d 314 (1994). [18] My review of the evidence indicates that the claimant received all appropriate medical treatment for both the August 15, 1995 and June 26, 1996 injuries to her left knee. The claimant was given no permanent impairment or any restrictions as a result of either injury. The evidence shows that the claimant was diagnosed on June 21, 1996 with a bruise only and was released by Dr. Rouse, her treating physician, at that time. The claimant did not seek treatment until February 14, 1997, which was over eight months after the second injury on June 21, 1996. [19] Further, there is no indication in the record that Dr. Tomlinson’s diagnosis of lateral patellar subluxation with chondromalacia changes is causally related to either of the claimant’s knee injuries. It is of interest to note that the claimant worked at Hardy’s Restaurant full-time after she was terminated by the respondent in July of 1996. The claimant’s job duties at Hardy’s required her to stand on her feet for long periods of time. The claimant was not required to stand for prolonged periods of time when she was employed by the respondent employer. [20] I also cannot agree with the majority’s finding that Ark. Code Ann. § 11-9-509 does not apply to this claim. The claimant lost no compensable time from work as a result of her two knee injuries. The claimant presently does not seek temporary total disability benefits. It is clear that the six-month period as set forth in Ark. Code Ann. § 11-9-509 has expired. The claimant’s last date of injury was June 21, 1996 and she did not seek medical treatment again until February 14, 1997 which is approximately eight months later. Accordingly, in my opinion, Ark. Code Ann. §11-9-509 is applicable to the facts of this claim and claimant’s claim for benefits should be denied. [21] Therefore, for the reasons stated herein, I respectfully dissent from the majority opinion. [22] MIKE WILSON, Commissioner