before the arkansas workers’ compensation … · 7/9/2015 · a bilateral release to his knee....
TRANSCRIPT
BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION
CLAIM NO.G409544
SHANNON GODWIN, EMPLOYEE CLAIMANT
GARLAND COUNTY LANDFILL,EMPLOYER RESPONDENT
ASSOCIATION OF ARKANSAS COUNTIES WCT. INSURANCE CARRIER/THIRD PARTY ADMINISTRATOR RESPONDENT
OPINION FILED JULY 9, 2015
Hearing before ADMINISTRATIVE LAW JUDGE CHANDRA L. BLACK, in HotSprings, Garland County, Arkansas.
Claimant was represented by Mr. Gary Davis, Attorney at Law,Little Rock, Arkansas.
Respondents were represented by Mr. Michael Ryburn, Attorney atLaw, Little Rock, Arkansas.
STATEMENT OF THE CASE
A hearing was held in the above-styled claim on April 22,
2015, in Garland County, Arkansas. A Prehearing Order was
entered in this case, on February 10, 2015. This Prehearing
Order set forth the stipulations offered by the parties, and
outlined the issues to be litigated and resolved at the hearing,
along with the parties respective contentions.
The following stipulations were submitted by the parties,
pursuant to the Prehearing Order, or at the start of the hearing.
I hereby accept the following stipulations as fact:
1. The Arkansas Workers’ Compensation Commission has
jurisdiction of the within claim.
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2. The employee-employer-insurance carrier relationship
existed at all relevant times, including March 17, 2014.
3. This claim has been controverted in its entirety.
4. All issues not litigated herein are reserved under
the Arkansas Workers’ Compensation Act.
5. During the hearing, the parties agreed that the
claimant’s annual salary at the time of his alleged compensable
injury was $23,688. This entitles the claimant to a weekly
temporary total disability rate of $304, and permanent partial
disability of $228.
By agreement of the parties, the issues to be litigated at the
hearing are as follows:
1. Compensability of the claimant’s alleged left knee.
2. Reasonable and necessary medical treatment.
3. Temporary total disability compensation from March 18,
2014, to a date yet to be determined.
4. An attorney’s fee.
The claimant’s contentions are set out in his response to the
Prehearing Questionnaire. These are hereby incorporated herein by
reference. The respondents’ contentions are set out in its
response to the Prehearing Questionnaire. These are also
incorporated herein by reference.
The documentary evidence submitted in this case consists of
the hearing transcript of April 22, 2015, and the documents
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contained therein.
The following witnesses testified at the hearing: the
claimant, Billy Sawyer, and Shana Settle.
DISCUSSION
The claimant was forty-five years old at the time of the
hearing. He has an eleventh grade education. The claimant verified
that he previously held a commercial driver’s license. (CDL). He
admitted that he is claiming that he had an incident on March 17,
2014, at work that caused an injury to his left knee, while
performing employment duties with Garland County Landfill. He had
worked there for approximately five months when this alleged
incident occurred.
His job duties included driving a semi-truck, back and forth
from Garland County to Little Rock twice a day. The claimant
testified that he had to drive a truck from Garland County to a
landfill in Pulaski County. With respect to this accident, the
claimant testified that he was getting his stuff out of this truck,
when he slipped off the top step and fell and jammed his knee.
The claimant admitted that he told the doctor that he fell
about four feet. According to the claimant, he fell straight down
onto his leg, and landed in a straight-up position. The claimant
agreed that he “jammed his knee.” He stated that at that time, he
felt he would be all right, and that he just wanted to leave the
premises.
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He maintained that two people witnessed the incident, Mike who
worked in the transfer station, and some other person. The
claimant stated that he did not have a clue who that person was,
but he was not part of the supervisory personnel. He next stated
that Billy was his direct supervisor. The claimant testified that
after this alleged incident, Mike asked if he was all right, and he
replied, “... I’m hurt but I guess I guess I’d be all right, you
know.”
According to the claimant, he left the premises, and went
home. The claimant verified that the medical record, which
reflects April 29th, as the first report of injury is correct. He
admitted that this report is about five weeks after the incident
that took place. The claimant testified that if he saw a doctor
anywhere in between that five-week period, it would have been his
primary care physician, Dr. Cole. He is a physician associated
with the Family Medicine Clinic. The claimant maintained that
during this period of time, he was laid up and putting ice on his
knee and was hoping his pain would go away.
The claimant testified that his wife made him go to see a
doctor. He admitted that he used his health insurance to pay for
bills that he incurred for his knee. Ultimately, the claimant had
to have surgery on his knee. The claimant testified that he had
three surgeries on his knee. These surgeries were performed by Dr.
Young.
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He admitted that he underwent the first surgery on May 16th,
and another one on June 27th. The last surgery that the claimant
had was performed on December 3rd. He specifically agreed that
these were arthroscopic surgeries, where they punched holes in his
knee and used a scope to look around and “clean stuff up.”
According to the claimant, during his last surgery, they performed
a bilateral release to his knee. He admitted that he wore a knee
brace to the hearing. The claimant testified that since he went to
the doctor, he has worn a knee brace. According to the claimant,
he wears a knee brace, about ninety percent of the time. Following
his surgical sessions, the claimant underwent physical therapy
treatment each time. The claimant essentially testified that he
takes Hydrocodone, whether for his shoulder, neck or knee. The
claimant verified that he had an injury to his back in 2012, while
working for another employer. He stated that it was an injury to
his neck and shoulder area. The claimant admitted that after the
2012, injury, he had an agreement with the insurance people there
that he had been hurt on the job, for which he was paid some
temporary total disability benefits. He admitted that he continues
to receive medical treatment in connection with his 2012 injury.
However, the claimant verified that after he received a release
from his shoulder condition, his temporary total disability was
discontinued.
While working for Brady Mountain, the claimant stated that he
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was paid eleven something an hour at the point that he got injured
during the 2012 incident. The claimant admitted that there was
dispute with Brady Mountain’s workers’ comp insurance people over
his neck. He admitted that he recently got approval to have neck
surgery, which had been recommended for a while. According to the
claimant, Dr. Zach Mason, is going to perform surgery on his neck.
The claimant admitted that this surgery was scheduled for May 7,
2015. He denied that he has been paid any monies through the date
of the hearing, after the benefits for his impairment rating ran
out.
The claimant admitted that his wife is currently employed.
His wife is a nurse at Lake Hamilton Health Care. He agreed that
his wife has health insurance coverage through her job. The
claimant admitted that he is still receiving bills in connection
with his knee injury, even though he was trying to use his wife’s
health insurance to pay for his knee condition.
Regarding the use of his wife’s insurance, the claimant
attempted to explain:
Q Why is it that you wanted to use the health insurance topay for the condition of your knee instead of using workers'comp insurance through Garland County?
A I didn't want nothing to do with workmen's comp, I mean,Garland County. I was humiliated and, you know, I just didn'twant nothing to do with them. You know, I just, that was it.
I just, my insurance was turned down, said it was aworkmen's comp case so I had to try to, you know, getworkmen's comp, Garland County to pay for it.
Q Again, your health insurance, your wife's health
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insurance that she has out on you has denied payment forbenefits on this claim for your knee?
A Yes.
The claimant agreed that he was unhappy with the way that he
was treated when he worked at Garland County. He was written up a
couple of times there for some things. He explained:
Q Tell us about that.
A I was written up for getting my trailer, I got my trailerstuck at the Little Rock landfill on a pile of dirt.
Q What happens, I mean, what happens when you go to thelandfill and get your trailer stuck on a pile of dirt?
A I just get the dozer and pull you back and get youunstuck.
Q Do you get in trouble for that?
A No.
Q Well, I mean, you got written up for it.
A I got written up that time, yeah, for getting stuck.
Q Was it common to get stuck out there at the landfill?
A Oh, yes.
Q What else did you get written up for?
A I got written up for an incident that happened withsomebody else. An axle come loose on a trailer that I usuallyrun and stuff, and I wasn't even there that day. I gotwritten up for that. They wanted me to take the blame forsomebody else's incident.
Q Somebody else had driven the truck?
A Yeah, the truck and trailer. And then I got written upfor the lug nuts being loose on the back of the truck and Imissed it.
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Q You signed, you signed off on the write-up from theincident at the landfill?
A Yes.
Q You signed off on the write-up having to do with theincident involving the axle?
A Yes, I believe I did once.
Q Why did you do that? Why did you sign off on that?A Because I was being harassed, you know, to do it, youknow.
Q You wanted to keep your job there?
A Yes.
Q What happened with this last incident?
A The last incident, the lug nuts come loose on the truck. There was somebody, I guess it was behind the rig, said thatthere was a wheel loose. I stopped and, you know, I checkedthe trailer and stuff out, you know, that's what I figured itwas was the trailer, you know. Nothing was wrong there. SoI got in the truck and left and I heard it.
Q Let's stop.
A Huh?
Q Let's stop for just a second. Somebody had apparentlycalled in and thought that they noticed that you had a loosewheel?
A Yeah.
Q Okay. And in some manner you were contacted?
A Yes, on the driver's line.
Q And so you stopped the truck and you checked it out?
A I checked the trailer out and, you know, I didn't seenothing wrong there, you know, so I got in the truck andstarted leaving and then I felt something, so I stopped againand looked and it was the rear axle on the truck, the rear hubwas loose.
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Q Okay.
A So that’s when I called the landfill and had Bill andthem bring another truck. I went to the landfill and dumpedand come back and they wanted me to come to the office. Andthat's when I wouldn't sign a deal saying, you know, they hada list of stuff there and wanted me to sign again saying I wasresponsible for that other guy's accident, and that's whenthey fired me.
Q When you say "that other guy's accident," what do youmean by that?
A He ran an axle, I guess, I think he ran an axle off theback of a trailer, I guess. I wasn't there.
Q Okay.
A And they wanted me to take the blame for that.
Q In addition to taking the blame for the lug nuts beingloose?
A Yes, and that's why I wouldn't sign it is because of thatone, you know. I would have signed it because of the lug nutsbeing loose on the truck but I wasn't going to sign it becauseof that one incident, and that's when they said, "You'refired, get your stuff out of the truck."
Q Is the idea that since you're the driver, you're supposedto inspect the truck?
A Yes.
Q Is that the idea?
A Yes.
Q So if the lug nuts are loose -- I mean, you're not theguy that tightens the lug nuts?
A No.
Q You're not the mechanic?
A No.
Q But you're supposed to inspect your truck and find out if
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there's an issue before driving it?
A Yes.
Q Okay. So you were okay with signing something that said,‘Yeah, these lug nuts are loose’?
A Yeah, I was okay with that, yeah.
Q But you weren't okay with signing something else off onthe truck.
A Yeah, something that somebody else, you know, somebodyelse has done.
Q And so you got fired?
A Yes.
He testified that he was fired on March 17th. The claimant
stated that Shana, Billy, and Paul were present when he was fired.
According to the claimant, he was told to get his “stuff out of the
truck.” The claimant essentially testified that when he went to
get his belongings out of the truck, he slipped and fell. He went
on to explain that there was always hydraulic fluid all over the
steps.
The claimant agreed that there was another incident with his
knee before that. He testified that he was loading, and there was
ice around the area where you clocked out, which was the place
where you stepped down. According to the claimant, he did not see
the ice and fell directly on his knee. The claimant testified that
it hurt him, but he felt he would be all right. According to the
claimant, there was no one else there when this incident occurred.
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According to the claimant, he went home, and the next morning, he
told Billy about it. The claimant testified that Billy asked if he
was all right, and told him, “Well, I guess I’ll be. You know, it
hurts, but I guess I’ll be okay.” The claimant was unable to
recall how long before the March 17 incident, that this slipping on
the ice incident took place. However, he estimated it to be maybe
a month, or even two months before. The claimant was not aware of
any written report of this incident. He denied that he signed
anything saying that he reported the accident.
The claimant testified that when he slipped and jarred his
left knee, on March 17, he did not say anything to Billy because he
was humiliated and aggravated, and did not want “nothing” else to
do with them, after the way he was treated. He agreed that his not
wanting anything else to do with them, is what led to him using his
health insurance to pay his bills.
With respect to his 2012 injury, the claimant verified that
the company knew about the injury to his neck and shoulder from the
2012 injury. The claimant stated that he had a conversation with
Billy about his previous injury of 2012.
Specifically, the claimant explained:
A He asked me if I was going to keep my job once Igot, you know, my settlement and everything, and I'mgoing, "Yeah, you know, I'm going to provide for myfamily, you know, and invest that money in something, youknow, and keep working, you know."
The claimant admitted that years ago, when he was a
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teenager, he hurt one of his knees. However, the claimant
maintained that he could not even tell us which one it was,
because he does not really remember. He essentially agreed that
he does not recall which knee that he was having problems out of
because he was fine, and not having any problems. The claimant
testified that he did not have any problems with his knee until
this work incident. He denied any medical treatment with his
knee, from the time that he was a teenager, up until this
incident.
The claimant essentially testified that as of late, driving
a truck with a clutch would be impossible for him to do. He
maintained that the fact that he held a CDL, it does not really
do him “a whole heck” of a lot of good right now, with his knee
the way it is. He admitted that he is able to drive an automatic
car.
With respect to the treatment for his knee, the claimant
stated that the last thing that Dr. Young did for his knee was a
bilateral release. Following this, the claimant underwent
physical therapy. He stated that his knee has been aspirated,
about nine times. According to the claimant, the last time he
had something like this done was before his last surgery. The
claimant stated that they quit doing it because it was not doing
any good. He stated that by the time he could get home, his knee
would balloon back up.
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The claimant testified that he last saw Dr. Young was about
a month ago after the last medical report of record, which is
dated March 27th. He stated that he was told that there was
nothing else that they could do for his knee, other than a total
knee replacement. The claimant denied that he has a return
appointment to see Dr. Young. According to the claimant, he
needs a better brace, but cannot afford it now. Next, the
claimant admitted that the Hydrocodone, was prescribed for his
neck and shoulder problems. The claimant testified that Dr.
Young was aware that he was taking it already for these
conditions.
On cross-examination, the claimant gave an explanation of
how his 2012, injury occurred while working for Brady Mountain.
He testified:
Q What happened to you? What caused that?
A What caused my accident at the previous job?
Q Yes.
A I was operating a crane and something blew on thecrane, and the crane was set up on a steel barge, whichwe pushed around with our barge, so we're talking abouta seven-ton concrete block for a wave break.
Once I picked it up in the air and I was fixing torelease it something blew, I don't know, which made thearm swing all the way to one side and it started to flipover.
I had to jump out and I landed on this shoulder andit broke my shoulder and messed my neck up.
Q You're talking about your left shoulder?
A Yes, sir.
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Q And at that time did you also injure your left knee?
A No, sir.
Q You were thrown into some metal or some kind of aparty barge or something?
A I landed on that steel dock on my left shoulder.
Q Okay. You didn't hit your left knee?
A No, sir.
Q Now, that claim was accepted and you were off workfor a pretty good period of time?
A Yes, sir.
Q And you got a pretty good rating for your shoulder,is that right?
A Yes, I got a 16% disability rating on my leftshoulder.
Q And they paid that out up through November of 2014?
A Yes, sir.
Q Okay. Now, you say you now need surgery on yourneck?
A Yes, sir.
Q And in your deposition you said you were going tohave that surgery in March, but now it's going to be inMay?
A Yes.
Q And you have reopened that claim with the insurancecompany for Brady Mountain?
A Yes.
Q Are they paying you benefits now?
A No, sir.
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Q You're said they were going to pay for your surgery?
A Yes, sir.
Q Are you going to be disabled when you have surgery?
A Probably so.
Q Are they agreeing to pay you disability benefitswhen you have that surgery?
A After I have the surgery they said that they wouldstart paying me something for the healing time orsomething. I don't understand it. But no, I'm notreceiving anything right at the time.
Q Now when you stopped working for Brady Mountain theysent you to school to get your CDL, is that right?
A Yes, sir.
The claimant essentially testified that his neck and knee are
both a problem. He initially denied that he knew how workers’
compensation claims work, based on his experience of having a prior
workers’ compensation claim in 2012. The claimant testified:
Q Okay, wait a minute. In 2012 you had a workers'compensation injury that was accepted –
A Right.
Q -- and you have been the beneficiary of gettingworkers' compensation benefits.
A Yes, on my shoulder.
Q And you knew when you filed that claim that you hadto tell somebody that you got hurt on the job, didn'tyou?
A I was in a lake, you know, finally had to swim,about to drown, and an ambulance was called and I wascarried away in an ambulance.
Q Did you ever fill out any paperwork on this priorclaim saying, ‘Hey, I got injured on the job’?
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A On my knee?
Q No, on your neck and your shoulder.
A Yeah, I did.
Q Okay. So now let's talk about what happened in2014.
A Okay.
Q Now when you first filed a claim, you told them ithappened February the 17th of 2014.
A Yes, I believe so.
Q And why did you do that?
A Because that's when I got hurt.
When asked if he got hurt on March 17th of 2014, the claimant
replied, “Oh. I don’t really know.” Next, the claimant stated,
that he did not understand what was being asked of him, and asked
counsel for the respondents to repeat the question.
Next, the claimant testified:
Q I've got a First Report we're going to have sometestimony about in a minute that says, "When did thishappen?" You said, "February 17, 2014."
A I don't know. I was probably just confused aboutthe dates.
The claimant explained the circumstances surrounding the
termination of his employment. He verified that he was not injured
during any of the three incidents, regarding his trailer, for which
he was terminated.
He explained:
A They wanted me to sign that piece of paper with the
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incident saying, and part of it was saying that I wasresponsible for an accident that I wasn't even there thatday. And I wouldn't do it and that's when they said,"You are fired; clean out your truck." And after Icleaned out my truck, that's when I got hurt.
Q So you get fired and you're not an employee anymorewhen you walk out of that office, is that right?
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Q You got terminated before you ever got to the truckwhere this incident happened, is that right?
A They said, they fired me and told me to get mystuff. I was doing what they told me to do.
Q And the stuff now you're mentioning is personalstuff?A Yes.
Q What did you have in there?
A A flashlight and some tools, you know.
Q Stuff that belonged to you and not the county?
A Yes.
Q And where is the truck in location to the place thatyou were terminated?
A Maybe 50 yards maybe, I guess. I don't know.
Q And when they said, "Get your stuff," did you havestuff elsewhere around the employer's premises?
A No.
Q The only stuff you had was in the truck?
A Yeah, other than my clothes, you know, whichbelonged to them, you know.
Q So you get your stuff, did you get the stuff out ofthe truck?
A Yes.
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Q And as you're climbing down from the truck, that'swhen this happened to you?
A Yes.
Q Now, you're still on the employer's premises at thattime?
A Yes.
The claimant admitted that he waited five or six weeks before
going to the doctor. When asked how do we know something did not
happen to his knee within that five or six weeks, he replied:
“I guess you’ll just have to trust my word, I guess, I don’t know
know. I know I was laid up, you can ask my wife and talk to some
of the other drivers, because I was talking to some of them and
they knew about the accident.”
He admitted that when he finally went to the doctor, he did
not call or email his employer or the county. The claimant
admitted that after his permanent partial disability ran out on
December 3, 2014, from his previous injury, he filed a claim for
his knee.
With respect to the delay in filing a claim for his knee, the
claimant testified:
Q Did it take you a year to find that out?
A A year?
Q Well, from March until December, it took nine monthsto find that out?
A No, I was trying to get my insurance to pay for it.
Q And never once did you go to the county until
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December the 3rd and say, ‘Hey, I got hurt on the job, Igot a bad knee, I want y'all to pay for this’?
A I don't know, you'll have to ask my attorney becauseI don't know.
Q So --
A He's the one that sent it, not me.
Q What started the process then is when you went tothe attorney and he filed a Form C. That's the firsttime that the county possibly could have known about yousaying this was work related, is that right?
A I don't know.
With respect to the alleged incident where he fell on ice, the
claimant admitted that he did not go to the doctor. However, next
the claimant further admitted that he is asserting that all of his
knee problems are due to what happened to him on March 17th, while
getting out of the truck. The claimant also admitted that the
doctor told him on March 27th, that there is nothing he can do for
him other than a total knee replacement, except for a better knee
brace. However, the claimant stated that he does not wish to
undergo a total knee replacement at this time. According to the
claimant, this treatment was recommended by Dr. Young. So
technically, the claimant has been released to go back to work.
As of the date of the hearing, the claimant had not returned
back to work. The claimant maintained that he is not looking for
a new job because of his knee and neck problems. He admitted that
the other workers’ comp carrier will start paying in May when he
has the surgery on his neck.
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On direct examination, the claimant admitted that he was
specifically told to get his “stuff” out of the truck. He admitted
that at the time of his injury, he was doing what he had been told
to do. He admitted that while working for the respondent-employer
he clocked in and out for work. Although the claimant was not
certain, he did not believe he had clocked out on March 17th, when
his accident occurred. He agreed that the alleged coworker that
saw the incident, name is Mike, but he does not remember his last
name.
The claimant verified again on recross examination that this
Mike fellow was not his boss. He testified:
Q He's not in your department, is he?
A No, he runs the transfer station.
Q Do you remember when I asked in your deposition, Isaid, "So a guy named Mike that works at the transferstation saw this?" And you said, "Yeah, him and anotherguy."
Then I said, "Did you tell him that you had hurtyour knee?" And do you remember what you told me?
A No, I don't remember.
Q Today you’re saying you told him that you said youhurt your knee.
A He asked me if I was all right.
Q Your reply at page 19 in your deposition you said,"No, I didn't say nothing."
A No, I didn't say that.
Q That's what you said in your deposition. I'mreading it right here. "I was mad and I was frustratedand I didn't say nothing."
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A I didn't say nothing to Billy. I said to Mike, Isaid, "I don't know, I guess I'm all right, you know. Ithurts, but I guess I'm all right."
Q But today you're saying you did tell him. In yourdeposition you said you didn't tell him.
A I didn't tell Billy.
Q I asked you, "Did you tell Mike and the other guythat you had hurt your knee?" And you said, "No, Ididn't say nothing."
A No.
Billy Sawyer was called as a witness on behalf of the
respondents. He is the fleet manager for Garland County Landfill.
He admitted that he was employed there when the claimant was an
employee. Mr. Sawyer gave an explanation of the notices given to
the claimant concerning his problems with handling county
equipment. He agreed that the claimant’s employment was terminated
as a result of these incidents because that cost the county money.
Mr. Sawyer, Paul and Shana agreed to terminate the claimant. As a
result, they called the claimant into Mr. Sawyer’s office and
terminated him.
Under further questioning, Mr. Sawyer testified:
Q When you terminated him, did you tell him why?
A Yes, sir.
Q When you terminated him, did you intend for him tono longer be an employee of the county as of that moment?
A Yes, sir.
Q Did you tell him to go get his stuff out of histruck?
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A We told him if he had any personal belongings in thevehicles to get them out.
Q So the only thing that he had left to do after beingterminated was get his personal stuff?
A Yes, sir.
Q Did you follow him out to the truck?
A No, sir.
Q Did you see him after he got his stuff out of thetruck?
A No, sir.
Q So he left the premises after getting his personaleffects?
A Yes, sir.
Mr. Sawyer denied that the claimant ever reported to him that
he had ever been injured after he was terminated. He further
denied that the claimant ever reported to him he had been injured
until the insurance adjuster called him up. Mr. Sawyer agreed that
he did find out about the alleged injury until December of 2014.
At that point, Shana notified him of the injury.
On cross examination, Mr. Sawyer admitted that he did not
watch the claimant go the truck. He stated that Mike’s last name
is Andrey. He is the lead operator in charge of the transfer
station. Mr. Sawyer verified that Mr. Andrey is still employed by
the county. He stated that he did not ask Mr. Andrey about the
incident because this is the first time, that he heard that Mr.
Andrey witnessed any incident. He stated that he does not know if
the claimant clocked out on the 17th.
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Shana Settle was called as a witness on behalf of the
respondents. She stated that the claimant did not have any job
responsibilities to perform after he was fired. Ms. Settle stated
that she did not hear about the claimant’s alleged injury until
December 3rd, when Debbie from workers’ comp called her.
She admitted on cross examination that the claimant had been
instructed to get his personal belongings out of the truck after
being terminated.
My review of the medical evidence shows that the claimant
sought medical treatment from the Family Medicine Clinic, on April
29, 2014. Dr. William S. Cole reported, in relevant part:
Chief ComplaintThe Chief Complaint is: Left knee pain.
History of Present IllnessShannon Godwin is a 45 year old male.Patient states he was fired from Garland County Landfill. After he was fired, he was getting his stuff out of thetruck. He stepped out on the running board of the semiand he fell 4 feet. He states he landed on his feet andsomewho [sic] twisted his left knee. This happened on3/17. since [sic] then he has had worsening pain in theknee. He has had swelling. He has pain with weight-bearing. Pain is throbbing. He has no known hx leftknee problems.He goes pain clinic in LR and getshydrocodone for one a night per Dr. Ackerman for aprevious workman’s comp injury to his neck/shoulder.
•Medication list reviewed. (Cl. Ex. 1, p.1)
* * *
Assessment•Internal derangement of left knee
Therapy•Intervention and counseling on cessation of tobacco use.
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•Clinical summary provided to patient.
Counseling/Education•Instructions for patient
Plan
• INTERNAL DERANGEMENT OF LEFT KNEENorco 7.5-325 MG TABS, 10 days, 0 refills, 1 po q 6 hoursprn pain
No weight-bearing keep f/u app’t with ortho. I called and gotit moved up to 5/1/14 at 11:30 then notified patient. (Cl.Ex. 1, p.2)
On May 13, 2014, the claimant underwent evaluation by Dr.
Christopher Mitchell Young, due to a chief complaint of left knee
pain.
HPI: Shannon L. Godwin is here to follow up for Left kneepain after twisting the knee recently. She [sic] fellout of a semi truck. There is a small effusion about theknee at this point. Patient reports minimal relief fromconservative treatments. The pain is getting worse. Itis interfering with ADLs and sleep. They report givingway symptoms in the knee as well. (Cl. Ex. 1, p.3)
* * *
ASSESSMENT: Internal Derangement of Left knee withpossible Medial meniscal tear.
TREATMENT AND PLAN: Today we aspirated and injected her[sic] left knee with 2 cc celestone and 2 cc marcaine. We will see how this helps her [sic] pain and see her[sic] back in a few weeks. (Cl. Ex. 1, p.5)
On May 16, 2014, the claimant underwent left knee surgery by
Dr. Young. He reported, in pertinent part, the following in an
operative report:
PREOPERATIVE DIAGNOSIS:Internal derangement, left knee.
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POSTOPERATIVE DIAGNOSIS:Internal derangement, left knee.
PROCEDURE:Left knee arthroscopy with chondroplasty of the patella. (Cl. Ex. 1, p.7)
The claimant returned to see Dr. Young on May 22, 2014, for
his first follow up post-op visit for his left knee scope. At that
time, the claimant was doing well. He had no significant pain to
report at that time.
On May 27, 2014, the claimant saw Dr. Young for a follow-up
visit for a chief complaint of knee pain. He reported the
following in a progress note, in relevant part:
SUBJECTIVE:The patient is here for follow up of the knee scope onleft side. Unfortunately, he had a significant amount ofgrade 4 chondromalacia down to bone on the undersurfaceof his patella/osteoarthritis. He had significant amountof bone-on-bone arthritis under his patella. He stillcontinues to have these huge chronic effusionspostoperatively. We aspirated his knee several times. At this point, we plan to aspirate his knee again. Weare going to try to get approval to doviscosupplementation on him. (Cl. Ex. 1, p.10)
* * *
PHYSICAL EXAMINATION:Shows him to have a very large effusion of his left knee. There is no evidence of infection.
IMPRESSION:Osteoarthritis, left knee. (Cl. Ex. 1, p.12)
Dr. Young authored a progress note on June 17, 2014:
SUBJECTIVE:The patient is here for follow up of the knee scope onleft side. He is now about 1 month out from this surgery
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now. unfortunately [sic], he had a significant amount ofgrade 4 chondromalacia/osteoarthritis down to bone on theundersurface of his patella. He had significant amountof bone-on-bone arthritis under his patella. He stillcontinues to have these huge chronic effusionspostoperatively. We aspirated his knee several times. We have also given him a round of 3 euflexxa injectionsthat have not given him much relief either. He statesthat the steroid pack he has been on really helped hisknee swelling. Unfortunately this cannot be the longterm fix.
* * *PAST SURGICAL HISTORY:
Past Surgical HistoryProcedure Laterality Date
•Hx orthopedic surgeryrotator cuff surg , left shoulder•Pr knee scope, diagnostic 5/16/2014KNEE ARTHROSCOPY performed by Young, Christopher Mitchell, MD at HTSP MAIN OR•Pr knee scope,abrasn arthroplasty 5/16/2014KNEE CHONDROPLASTY ARTHROSCOPIC performed by Young,Christopher Mitchell
PLAN:The steroid pack he was on helped him initially but theswelling came back once he was finished with it. I amnot sure why his left knee is not getting any betterafter all of the aspirating and euflexxa injections. Iam going to get him another left knee MRI to see if I canfind the problem that way. We will see him back withresults. (Cl. Ex. 1, pp.21-22)
An MRI was performed of the claimant’s left knee on June 24,
2014, with the following impression:
1. Pronounced chondromalacia of the patella, with verymild chondromalacia of the medial tibiofemoraljoint.
2. There is some fraying of the lateral meniscus atits posterior horn/root junction and also some veryminimal radial blunting of the body of the lateralmeniscus.
3. A 1.1 centimeter chondro-osseous loose bodyposterior to the medial tibial condyle, image 21 of
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series number 5. (Cl. Ex. 1, p.23)
Dr. Young wrote the following in an operative report on June
27, 2014:
PREOPERATIVE DIAGNOSIS:Recurrent left knee pain.
POSTOPERATIVE DIAGNOSIS:Recurrent left knee pain.
PROCEDURES:Left knee arthroscopy with partial lateral meniscectomy. (Cl. Ex. 1, p.28)
The claimant saw Dr. Young for a follow-up visit on July 10,
2014:
HISTORY OF PRESENT ILLNESS:Patient is a 45-year-old, who is in to follow up for hisrepeat left knee scope. We scoped his knee 2 weeks ago. I removed a loose body from his left knee. He is here tofollow up from this. Unfortunately his left knee isstill significantly swollen. He is having pain withrange of motion. During the knee scope we foundsignificant chondromalacia under his patella, butotherwise a fairly unremarkable knee. He has hadsignificant pain and severe effusions in the past, thatis why we proceeded with another scope. He has failedsteroids and Euflexxa injections. He is having most ofhis pain over his medial joint line. His knee is stillheat [sic] and swollen today. He is here to discussfurther surgical options. (Cl. Ex. 1, p.30)
* * *
IMPRESSION:1. Left knee scope removal of loose body 2 weeks out
and still swollen and in pain.
PLAN:He is still hot and swollen today. At this time afterhaving two knee surgeries and multiple knee injections Ifeel like his ultimate fix will be a total kneereplacement. (Cl. Ex. 1, p.32)
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Dr. Young wrote the following in a progress note dated August
27, 2014:
HISTORY:The patient is here for followup of his left knee. Hehad severe swelling in his left knee status postarthroscopy x2. He is actually doing a little bitbetter. He says the swelling is not as bad as it hasbeen. He complains of continued pain. He says he reallycannot work with his knee like it is however. (Cl. Ex.1, p.39)
* * *IMPRESSION:Chronic effusion left knee, status post scope.
PLAN:At this point, he does not feel like he can do his job atwork. I suspect that is probably accurate based on hislevel of intraarticular effusion and some chondromalacia. I am not exactly sure what his return to work looks likeat this point. (Cl. Ex. 1, p.41)
On November 25, 2014, the claimant saw Dr. Young for
a follow-up visit:
HPI: Shannon L. Godwin is here today complaining of Leftknee pain after twisting the knee months ago. We havebeen watching his knee over the last few months. He hashad a history of his left knee being aspirated about 6-8times. He is doing slightly better today. He is stillnot able to work due to the pain and swelling but heseems to be some better today. There is a small effusionabout the knee at this point. Patient reports minimalrelief from conservative treatments. The pain is gettingworse. It is interfering with ADLs and sleep. They havesome catching symptoms present upon ambulation. MRIshows medial meniscal tear. (Cl.Ex. 1, p.44)
* * *
RADIOGRAPHIC FINDINGS: AP and lateral X-rays were nottaken and show no acute fractures and moderateosteoarthritis present.
ASSESSMENT: Chronic effusion left knee, status post
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scope.
TREATMENT AND PLAN: Will still keep him off work for now. Will F/U in a month. At this time we will proceed witha left knee scope. (Cl. Ex. 1, p.46)
Further review of the medical evidence shows that on December
3, 2014 the claimant underwent a third left knee surgery, by Dr.
Young. He reported the following in an operative report, in
relevant part:
PREOPERATIVE DIAGNOSIS:Patellofemoral syndrome, maltracking, left knee.
POSTOPERATIVE DIAGNOSIS:Patellofemoral syndrome, maltracking, left knee.
PROCEDURE:Left knee arthroscopy with a lateral release. (Cl. Ex.2, p.1)
The final medical report of record was authored by Jared
Wilson, a physician assistant, which resulted from the claimant’s
medical visit of March 10, 2015:
HPI: Shannon L. Godwin presents today for a 13 weekfollow-up after a left knee arthroscopy procedure with LRand is doing well. He still has some swelling butoverall his pain is better. He still has some difficultybut is improving. (Cl. Ex. 2, p.9)
* * *
ASSESSMENT: 13 weeks out from left knee arthroscopy withlateral release and healing well.
PLAN: Overall is doing much better. He still havingproblems but improved. At some point down the road hemay need a knee replacement before denies any is calmdown. He’ll continue activities as he tolerates. He’llcome back and see us on an as-needed basis.Dr. Chris was available for discussion if needed. (Cl.Ex. 2, p.11)
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ADJUDICATION
The claimant has asserted a compensable injury to his left
knee as a result of a March 17, 2014 incident, wherein he slipped
from the steps of his company truck and jammed his knee.
"Compensable injury" means an accidental injury causing
physical harm to the body, arising out of and in the course of
employment and which requires medical services or results in
disability or death. Ark. Code Ann. § 11-9-102(4)(A)(i). A
compensable injury must be established by medical evidence
supported by objective findings. Ark. Code Ann. §11-9-102(4)(D).
The claimant must prove by a preponderance of the evidence that he,
or she sustained a compensable injury. Arkansas Code Annotated
§ 11-9-102(4)(E)(i).
Specifically, the claimant contends that he suffered a left
knee injury as he existed his company vehicle, after management had
terminated his employment with them due to alleged damage to
company equipment. It is undisputed that management instructed the
claimant to remove his personal effects from his company-provided
truck after they gave him notice of his termination. At the time
of his alleged incident occurred, the claimant had worked only five
months for Garland Landfill as a semi-truck driver. During the
hearing, testimony was elicited from the parties, establishing that
the claimant was required to clock in and out for work. However,
there is insufficient evidence to support a finding that the
claimant had clocked-out(or, that he ever clocked-out of work that
30
day), on March 17, 2014, based on the testimony elicited from the
parties during the hearing. However, it is undisputed that the
claimant’s alleged event occurred on the premises of the
respondent-employer. Our supreme court has interpreted the term
“employment services” as performance of something generally
required by an employer.” Considering that the claimant was doing
what he had been specifically instructed to do by management, and
in light of all of the other aforementioned circumstances, I find
that the claimant was performing employment services when his
“alleged left knee injury/incident occurred.”
Nonetheless, after reviewing the evidence in this case
impartially, without giving the benefit of the doubt to either
party, I find that the claimant has failed to prove by a
preponderance of the credible evidence that he sustained a
compensable injury to his left knee, arising out of, and in the
course of his employment with the respondent-employer/Garland
County Landfill.
I am of this persuasion, particularly when considering all of
the inconsistencies and contradictions made by the claimant, as set
forth below. Given these circumstances, it would require conjecture
and speculation to conclude that the claimant’s current left knee
problems are causally related to his employment duties.
Speculation and conjecture, even if plausible, cannot take the
place of proof. Ark. Department of Correction v. Glover, 35 Ark.
App. 32, 812 S.W. 2d 692 (1991).
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Therefore, in the present matter, I find that the claimant was
not a credible witness. Despite the claimant’s assertion that he
reported his injury to management, Mr. Sawyer and Ms. Settle
credibly testified that the claimant did not make mention of any
injury to management on the day of the alleged incident. Both of
them credibly testified that they were not made aware of any
alleged injury to the claimant’s left knee until December 3, 2014,
some nine months following the alleged incident. At this point,
management was contacted by the respondent-insurance carrier.
Although the claimant now maintains that he injured his knee
on the day of his discharge, which was March 17, 2014; however,
when he first filed a claim in this matter, he reported an injury
date of February 17, 2014. During the hearing, the claimant stated
that he does not know when he injured his knee. He also testified
that prior to this incident, he injured his knee while working for
the respondent-employer. However, he made no documented report of
an injury, and Mr. Sawyer credibly denied that the claimant ever
report this alleged event to him. In 2012, the claimant had an
injury with another employer, for which he was receiving benefits,
when he started his employment with Garland County Landfill. He
did not make a documented complaint of an injury, until December of
2014, at which point the benefits for his 2012 injury were
discontinued.
Nonetheless, the claimant did not seek medical treatment for
his knee condition until some six weeks after the alleged incident.
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During the hearing the claimant conflicting reasons for using his
wife’s insurance to pay for this treatment (see full discussion
above). In sum, when comparing the claimant’s testimony to the
preponderance of the evidence, I am not persuaded that the claimant
injured his knee at work. Therefore, on the basis of the record as
a whole, I find that the claimant failed to prove that his need for
treatment and disability for his left knee problems arose out of
and during the course of his employment, or that his left knee
problems were the result of an alleged specific incident on March
17, 2014. As a result, this claim is hereby respectfully denied
and dismissed in its entirety. All other issues in this matter are
hereby rendered moot and have therefore not been addressed herein
this Opinion.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
On the basis of the record as a whole, I make the following
findings of fact and conclusions of law in accordance with Ark.
Code Ann. §11-9-704.
1. The Arkansas Workers’ Compensation Commission has jurisdiction of the within claim.
2. The remaining stipulations set forth above are hereby accepted.
3. The claimant has failed to prove by a preponderance of the credible evidence that he sustained a compensable left knee injury, arising out of and in the course of his employment with the respondent-employer, on or about March 17, 2014.
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ORDER
For the reasons discussed herein this Opinion, this claim
for a left knee injury must be, and hereby is, respectfully
denied.
IT IS SO ORDERED.
__________________________ CHANDRA L. BLACK
ADMINISTRATIVE LAW JUDGE
CB/ch
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