Opinion
CLAIM NO. E714829
ORDER FILED APRIL 12, 2001
Upon remand before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE FREDERICK SPENCER, Attorney at Law, Mountain Home, Arkansas.
Respondents represented by the HONORABLE TOM HARPER, JR., Attorney at Law, Fort Smith, Arkansas.
Decision of the Administrative Law Judge: Reversed.
OPINION AND ORDER
The claimant has appealed the decision of the Administrative Law Judge finding that the claimant has failed to prove that she sustained a compensable injury to her right knee. After conducting a de novo review of the entire record, we find that the decision of the Administrative Law Judge must be reversed.
The claimant suffered a severe right hip injury in a fall at work on December 6, 1997 which was accepted as compensable and treated. Thirty years prior, the claimant had suffered a severe injury to her right knee. Two weeks after the 1997 hip injury, the claimant reported experiencing some swelling in the right knee, and her condition with regard to the knee deteriorated significantly after that. The respondent accepted the right hip injury but controverted treatment of the claimant's right knee injury. The Administrative Law Judge held that the claimant failed to prove any objective findings of injury to her right knee because she did not present to the emergency room with complaints about her right knee at the time of the hip injury; that the claimant "cannot prove that said injury of December 6, 1997, was the major cause of her disability or need for treatment"; and that the claimant failed to prove that her injury was caused by rapid and repetitive motion.
On December 6, 1997, the claimant sustained an admittedly compensable injury when she fell down some steps at work. In the emergency room of Baxter County Regional Hospital, the claimant presented with significant right hip and groin pain, which was eventually diagnosed as a right femoral neck fracture (hip fracture). Dr. John Harp performed surgery inserting pins into the right hip on December 7, 1997. On December 11, 1997, the claimant was discharged from the hospital with instructions to return to Dr. Harp's clinic on December 23 for post-operative follow-up. In his chart note dated December 23, 1997, Dr. Harp reported that the claimant "is complaining of some knee swelling, but I think this is all secondary to her hip injury."
The claimant presented on January 20, 1998 with right knee pain. Dr. Harp noted that her knee was very abnormal, "however, I think this is from her earlier surgeries. I do not see any acute changes in the knee." On January 27, 1998, Dr. Harp stated that the claimant continued to complain of right knee pain and that she had a very abnormal knee: "I believe that she has severe degenerative arthritis and this has probably been exacerbated by her recent fall. A total knee replacement may be required." On February 4, 1998, Dr. Harp noted that the claimant could not use her right leg due to her knee pain. He stated that he and Dr. Knox felt a total knee replacement was necessary and that "her degenerative knee was most likely exacerbated by her fall."
The claimant underwent an independent medical evaluation at the respondent's request by Dr. Wolfe on March 10, 1998. He noted that the claimant stated that she had not had any pain in her knee prior to the fall on December 6, 1997. He noted that "radiographs of her knee reveal marked post-traumatic degenerative changes to the right knee with near complete loss of joint cartilage, particularly in the medial compartment and multiple pieces of retained hardware where she previously underwent what apparently was open reduction and internal fixation for a tibial plateau fracture." His impression of her hip injury and treatment was very positive. However, in regard to her knee, he stated:
I don't think there is any question but that the underlying problem is that of post-traumatic degenerative changes to the right knee and I think this is the reason her knee is functioning so poorly. There is no question but that the arthritic changes in the knee preceded her most recent injury and that this is the major contributing problem to her pain and dysfunction. I do think that she may very well have had an exacerbation of her problems from her fall and subsequent treatment, but to a reasonable degree of medical certainty, certainly her major problem related to the post traumatic degenerative changes preceded this injury. There is always the possibility that she could have had a small meniscal tear at the time of her fall and this may be a minor underlying problem relating to her knee. It certainly would be appropriate at the time, should she undergo further surgery, to check the status of the menisci and see if it can be determined if there was, indeed, a new injury to the meniscus. I think this is possible, but again I do not think it would be the major contributing factor to the deterioration of her knee. I do think that total knee replacement as proposed by her treating physician is appropriate and I think it would significantly improve the function to her knee and improve her in regard to pain control. I think this would allow her to return to more functional activities. . . . Utilizing table 62 of the Fourth Guide to Permanent Impairment, she would have a twenty percent impairment to the whole person, which is a fifty percent impairment to the involved lower extremity, based on the arthritic changes to her knee. This again is based on arthritic changes that preceded her injury and this degree of impairment, to a reasonable degree of medical certainty is not felt secondary to her most recent injury.
Dr. Harp saw the claimant on May 6, 1998 to monitor her hip and in preparation for her total knee replacement, and noted that claimant was "also very frustrated that her knee was functioning before she fell and does not understand why her knee is not functioning properly now. I have no explanation."
Dr. Nelson saw claimant on July 20, 1998 and stated that claimant reported no knee problems prior to her fall, but worsening occurred after. The claimant underwent right knee replacement surgery on August 27, 1998.
Dr. Wolfe wrote on January 19, 1999, upon review of hospital records, that:
Information from Dr. Nelson [surgeon for the total knee replacement] reveals no evidence of significant new trauma and is consistent with my earlier opinion that [claimant's] knee problem and surgery results from arthritic conditions relating back to an old injury and there is no evidence that the fall dated 12/06/97 was the major cause of the need for surgical intervention for the knee. I can state this with a reasonable degree of medical certainty.
Dr. Nelson wrote on March 29, 1999, that "it is my opinion that the fall did contribute to the injury. When she fell at work she fractured the hip. She did have a deformity of the knee prior to the injury, but it was asymptomatic. Evidently that is quite accurate, because she worked every day on twelve hour shifts. Apparently the fall aggravated the condition in her knee. I certain [sic] cannot prove it but it is my opinion." On September 8, 1999, Dr. Nelson reiterated that he thought the claimant's injury was related to increased symptoms in her arthritic knee: "I think it is, but there is no way I can prove it, as you know."
A pre-existing disease or infirmity does not disqualify a claim if the employment aggravated, accelerated, or combined with the disease or infirmity to produce the disability for which compensation is sought. See, Nashville Livestock Commission v. Cox, 302 Ark. 69, 787 S.W.2d 664 (1990); Minor v. Poinsett Lumber Mfg. Co., 235 Ark. 195, 357 S.W.2d 504 (1962); Conway Convalescent Center v. Murphree, 266 Ark. 985 588 S.W.2d 462 (Ark.App. 1979); St. Vincent Medical Center v. Brown, 53 Ark. App. 30, 917 S.W.2d 550 (1996). As is commonly stated, the employer takes the employee as he finds him. Murphree, supra. In such cases, the test is not whether the injury causes the condition, but rather the test is whether the injury aggravates, accelerates, or combines with the condition. However, although a disabling symptom of a pre-existing condition may be compensable if it is brought on by an accident arising out of and in the course of employment, the employee's entitlement to compensation ends when his condition is restored to the condition that existed before the injury unless the injury contributes to the condition by accelerating or combining with the pre-existing condition. See,Arkansas Power Light Co. v. Scroggins, 230 Ark. 936, 328 S.W.2d 97 (1959).
In the present case, we find that a preponderance of the evidence indicates that the claimant permanently aggravated her pre-existing knee condition in the December 6, 1997 fall, ultimately requiring the total knee replacement at issue in order to effectively relieve the extensive pain problems arising out of the aggravating injury. Compare Wackenhut Corp. v. Jones, ___ Ark. App. ___, ___ S.W.3d ___) (March 21, 2001).
In reaching this conclusion, we are particularly persuaded by the claimant's credible testimony, consistent with the medical reports, that the claimant's knee was asymptomatic prior to the fall, but became significantly painful after the fall. Although the Administrative Law Judge placed significant weight on the fact that the claimant complained of hip pain, not knee pain, when she presented to the emergency room, we note that there appears to be no dispute that the claimant was experiencing symptoms from a fractured hip at the time she presented to the emergency room. In addition, we note that it appears from the medical record that the claimant simply had little or no reason to use her knee, and therefore little or no way to discover the extent of her new knee problem until she tried to regain weight bearing in her right leg following right hip surgery. Finally, we find credible the opinions of the claimant's treating physicians, Dr. Harp and Dr. Nelson, who opined that the claimant's fall exacerbated/aggravated her pre-existing asymptomatic right knee condition, and we do not see a basis from the medical record to conclude that these physicians were under any misunderstanding as to how or when the claimant's right knee symptoms started following the December 6, 1997 fall.
As regards the requirement of objective medical findings of the aggravation injury, we note that the claimant's predominant knee symptom for the aggravation injury was severe pain, and this Commission has noted on several occasions the difficulties in identifying any objective findings to document the presence of that particular symptom. Likewise, the diagnostic tests in the record only document the pre-existing degenerative changes which pre-existed the fall. However, Dr. Wolfe did make an objective clinical observation of "effusion" in the right knee and of "crepitus" in the right knee during his March 10, 1998 examination, and the medical reports indicate that the claimant reported having right knee pain and swelling after her hip surgery. Under these circumstances, Dr. Wolfe's March 10, 1998 notation of "effusion" in the claimant's knee appears to be the best available objective evidence to verify an aggravation type injury, absent any available means to objectively measure the claimant's even more predominant pain symptoms. In reaching this conclusion, we recognize that a potentially significant temporal gap exists between the date of the fall and the date that Dr. Wolfe noted effusion in his examination report. However, we also note that Dr. Wolfe's clinical observation of knee effusion in March is entirely consistent with the claimant's complaints of knee swelling first documented in the medical record two weeks after the fall in December. Under these circumstances, we find that a preponderance of the evidence establishes a causal connection between Dr. Wolfe's observation of effusion and the claimant's December 6, 1997 fall and associated aggravation injury to claimant's knee.
At the start of the hearing, the claimant's attorney advised the Administrative Law Judge that the claimant sought to litigate three issues: (1) an alleged knee injury caused by a specific incident at work, (2) an alleged gradual-onset knee injury caused by repetitive motion at work, and (3) the claimant's entitlement to medical benefits and to benefits for an impairment rating assigned by Dr. Wolfe on March 13, 1998 related to her knee.
For all of the reasons discussed above, we find that the claimant established by a preponderance of the evidence that she sustained an aggravation injury to her right knee, in addition to a right hip fracture, arising out of the falling incident (specific incident) that occurred on December 6, 1997. Therefore, we do not reach the claimant's alternative theory that she sustained a gradual-onset knee aggravation. As regards the claimant's claim for medical benefits, we find that the claimant is entitled to an award of medical benefits for the treatment she has received for her knee after her December 6, 1997 fall, including but not limited to the surgery performed on August 27, 1998. However, in light of the claimant's testimony that some of her medical expenses and disability have been paid through private insurance, the respondent is directed to hold in reserve for a period of five years a sum equal to the potential subrogation claims for any benefits described in Ark. Code Ann. § 11-9-411(a). The respondent is entitled to a dollar-for-dollar offset on those benefits described in Ark. Code Ann. § 11-9-411(a).
With regard to the claimant's request for benefits based on Dr. Wolfe's assignment of a 50% permanent anatomical impairment to the claimant's right knee on March 10, 1998, we note that Dr. Wolfe assigned this rating based on arthritic changes whichpre-existed her December 6, 1997 fall. Therefore, we find that the claimant has failed to establish by a preponderance of the evidence that her compensable injury was the major cause of the impairment at issue. See Ark. Code Ann. § 11-9-102(4)(F) (Suppl. 1999).
Finally, we find that the claimant's attorney is entitled to the maximum statutory attorney's fee under Ark. Code Ann. § 11-9-715(a) (Repl. 1996).
For prevailing in part 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
Commissioner Turner concurs in part and dissents in part.
I concur with the findings in the principal opinion that claimant has proven by a preponderance of the evidence that she sustained a compensable aggravation of her pre-existing knee condition; that claimant is entitled to medical benefits for the treatment she has received for her knee; that respondent is entitled to an offset pursuant to Ark. Code Ann. § 11-9-411(a); and that claimant's attorney is entitled to the maximum statutory attorney's fee for controversion. However, I must respectfully dissent from the finding that claimant is not entitled to any benefits for the permanent anatomical impairment to her right knee.
________________________________ SHELBY W. TURNER, Commissioner
Commissioner Wilson dissents.
I must respectfully dissent from the majority opinion reversing the decision of the Administrative Law Judge, because I find, pursuant to a de novo review of the evidence, that claimant failed to prove by a preponderance of the evidence the elements of a claim of compensability. Claimant appealed the decision of the Administrative Law Judge that claimant failed to prove that she sustained a compensable injury to her right knee. No briefs were filed. After my de novo review of the entire record, I would affirm the Administrative Law Judge because claimant argued that the injury occurred during her fall on December 6, 1997, but failed to prove this.
Had claimant proceeded under the argument that her injury was the result of the stress placed upon her knee by her treatment, thus iatrogenic or a compensable consequence of the compensable hip injury, then the inference would be easy to draw that claimant would not have had the symptoms she experienced after December 6, 1997 if her hip had not required treatment, because claimant did not have any difficulty prior to the fall. I would suppose she may have faced difficulties arising out of the original knee injury some time in the future, however that is speculation.
Claimant did not make this argument and did not proceed under a compensable consequence theory. Claimant and respondent, and therefore, the Administrative Law Judge, focused on whether it was a specific incident or a rapid and repetitive injury. It seems to me that there was a specific incident, falling down, but that objective evidence is lacking because all of the objective findings refer to degenerative changes as a result of the old knee injury and surgery, not the December 6 fall. Dr. Harp's note that claimant complained of swelling is not sufficient to prove that he observed that swelling. The evidence is clear that claimant had post-traumatic and post-surgical degenerative changes in her right knee as a result of the original knee injury. No one identified a new injury to the knee. Thus, no objective findings of injury were found. Thus no separate compensable injury to claimant's knee occurred on December 6, 1997 as alleged by claimant.
As to the significance of Dr. Wolfe's notation that he observed "1+ effusion," I note that Dr. Wolfe related claimant's knee problems to her degenerative condition resulting from her original knee injury. Dr. Wolfe speculated that a small meniscal tear possibly occurred at the time she hurt her hip, however, he related claimant's knee problems to her original injury and not to her compensable fall, and he did not relate the existence of a minimal amount of effusion to the possible existence of a tear. Further, I note that Dr. Wolfe observed no other objective findings.
After my de novo review of the evidence, I find that claimant has failed to prove by a preponderance of the evidence that she sustained a compensable injury to her right knee on December 6, 1997 when she fell at work, and therefore I must dissent.
____________________________ MIKE WILSON, Commissioner