FM Structural Plastic Tech, Inc. v. Jeremy Hoy

ca03-253

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
DIVISION I

FM STRUCTURAL PLASTIC TECH,

INC.

APPELLANT

V.

JEREMY HOY

APPELLEE

CA 03-253

SEPTEMBER 24, 2003

APPEAL FROM THE WORKERS'

COMPENSATION COMMISSION

[NO. F105145]

AFFIRMED

John B. Robbins, Judge

Appellee Jeremy Hoy began working for appellant FM Structural Plastic Tech, Inc. (FM) in June 2000. In May 2001, he filed a workers' compensation claim against FM, alleging that he injured his right knee while working on January 30, 2001. FM controverted the claim in its entirety. However, after a hearing the Commission found that Mr. Hoy proved a compensable injury and awarded compensation for related medical benefits. In addition, Mr. Hoy was awarded temporary total disability benefits from March 20, 2001, through the time he returned to work in July 2001, as well as temporary partial disability benefits for the following two weeks. FM now appeals, arguing that the decision of the Commission is not supported by substantial evidence. We find no error and affirm.

This court affirms findings of fact by the Commission if the decision is supported by substantial evidence. Branscum v. RNR Constr. Co., 60 Ark. App. 116, 959 S.W.2d 429 (1998). Substantial evidence exists if reasonable minds could have reached the same conclusion without resort to speculation or conjecture. White Consol. Indus. v. Galloway, 74 Ark. App. 13, 45 S.W.3d 396 (2001).

Mr. Hoy testified on his own behalf and stated that he was working for appellant sanding parts on January 30, 2001. On that day he was required to climb a ladder, and upon doing so he hurt his knee. Mr. Hoy stated, "I don't know if I slipped or how I did it but it just went out on me." Mr. Hoy reported the injury to his supervisor and then finished his work shift. However, he testified that immediately after the incident on the ladder he experienced pain and swelling, and had difficulty walking or putting weight on his right leg.

On the same day as the accident, Mr. Hoy visited his personal physician, Dr. Jeff Honderich. Dr. Honderich prescribed medication and advised him to return in a couple of days. Then, on February 1, 2001, at the request of appellant, Mr. Hoy visited Dr. Gary Moffitt. Dr. Moffitt reported that Mr. Hoy could return to work but should minimize weight bearing, and he saw him again on February 6, 2001. At that time Dr. Moffitt recommended an MRI, but one was never performed because Mr. Hoy elected to continue treatment with Dr. Honderich. Dr. Honderich subsequently referred Mr. Hoy to an orthopedist, Dr. Scott Cooper.

Mr. Hoy first visited Dr. Cooper on February 14, 2001. Dr. Cooper prescribed anti-inflammatory and pain medications, as well as a month of physical therapy. However, Mr. Hoy's problems continued and on March 20, 2001, Dr. Cooper performed an arthroscopy and proximal patellar realignment on Mr. Hoy's right knee.

Mr. Hoy continued to see Dr. Cooper after the surgery and continued physical therapy until May 21, 2001. According to Mr. Hoy, he was off work for about six months following the January 30, 2001, injury, and upon returning he worked only four hours per day for the next two weeks pursuant to Dr. Cooper's orders. At some time in August 2001, Mr. Hoy returned to full duty for FM, but quit voluntarily in October 2001. Since then he has secured other employment.

Mr. Hoy acknowledged that he received workers' compensation benefits for an injury to his right knee in 1996. He testified that he was working for Hudson Foods and "fell into a drainage hole striking my right knee, then fell backwards and felt my knee extend, had severe pain and felt a pop." As a result of the 1996 injury, Mr. Hoy underwent arthroscopic repair of a chondral fracture of the patella. He was awarded medical benefits as well as benefits for a period of temporary total disability.

Mr. Hoy stated that he returned to work for Hudson Foods performing the same job, and was not given any lifting restrictions or permanent impairment rating. He acknowledged that he continued to have problems with his right knee from 1996 through the time of the January 30, 2001, injury. He stated that about once a month he would have swelling, tenderness, or "give-away" episodes like the one he had on January 30, 2001. However, Mr. Hoy maintained that the prior episodes would always resolve, and never caused him to miss any work at FM. In this regard, he testified:

Between the original surgery and the January 30, 2001 injury, I was having just a little bit of swelling and tenderness, and a little difficulty getting around like I normally would. I would have flare-ups if I would go out and dance, haul wood, or hill climbing. It wouldn't bother me more than a day. It wouldn't put me where I couldn't get around. I did not seek medical treatment for the 1996 injury up until January 30, 2001.

The knee pain after my January 30th injury was different than the pain I had in the past. It was a lot more painful and hard for me to get around on. I attribute my injury to the January 30th incident because before Thanksgiving 2000 we had been doing a lot of overtime and a lot more standing, and it started aggravating me a little more than it had before. And then January when I climbed up the ladder and slipped, or whatever, it just never did get any better. There's no doubt in my mind that that specific incident triggered my knee problems.

On cross-examination, Mr. Hoy was questioned about why he waited until May 2001 to file a workers' compensation claim. He responded that he had been receiving medical and short-term disability benefits from his group insurance coverage, but that the benefits ran out. Mr. Hoy maintained that he was still within his healing period at the time he filed his claim.

Dr. Cooper was asked by both parties to give an opinion about what caused the need for surgery. On October 24, 2001, Dr. Cooper wrote:

As you can see from the hospital H & P and my office notes, Mr. Hoy did have trouble with his knee prior to the injury for which he came to see me. In fact, it sounds as if the patella was subluxing or partially dislocating during that time although no one can say for sure that his patella was dislocating.

Also from my notes, you can see that after his injury at work he seemed to be having more trouble with his feeling that his kneecap was going out on him more. He told me that prior to that injury at work when his knee would go out on him, he would get better after a couple of days. But after the injury at work, it failed to get better. Therefore, I think it's safe to say that the surgery resulted from the injury at work from which he failed to recover. On the other hand, he was having symptoms at least similar in quality to this, if not in quantity, prior to that specific injury.

On November 30, 2001, Dr. Cooper wrote:

Your first question had to do with what distinguished the injury for which I treated him from his previous injuries. Objectively, there was no difference at all. Mr. Hoy simply reported to me, as I was taking his history, that he failed to recover from that episode relatively quickly like he had the others. There is no question that the difference was subjective.

I cannot state that the episode that led to his surgery was significantly different from his previous episodes on any objective basis. As you are probably aware, a big part of medical care is obtaining a history. That is simply what the patient tells us. Unless I have reasons to think otherwise, I tend to take my patients at face value. But to answer your question, there is no objective difference between his prior episodes and the one after which I saw him.

I don't think I'm saying anything different in my letter to you from what I said in my letter to [appellee's counsel]. I didn't treat him after his previous injuries. I saw him only after he reported persistent pain and disability after the episode at work. Therefore, from that perspective, that was the injury that led to his surgery. Is there any question as to whether or not he had had a similar problem before? There's no question at all. It's clear that he did. He came to me when he continued to hurt after that last episode. He told me what had happened and how he felt and I took it at face value. We tried to treat him nonoperatively and it failed.

By the way, no where did I say that his injury at work was the "crowning blow" as for Mr. Hoy's need for surgery. Certainly he may have needed surgery eventually anyway. It was simply what led him to come and see me and since, according to him, he had a lot of trouble after the episode at work, and we could not get him well without surgery, we ended up operating on him.

For reversal, appellant contends there is not substantial evidence to support the Commission's decision that Mr. Hoy sustained a compensable injury. Specifically, FM argues that Mr. Hoy sustained a recurrence of the prior 1996 injury, rather than a compensable aggravation. FM cites Crudup v. Regal Ware, Inc., 341 Ark. 804, 20 S.W.3d 900 (2000), where the supreme court held that a recurrence is not a new injury but merely another period of incapacitation resulting from a previous injury.

For its argument that Mr. Hoy suffered a recurrence on January 30, 2001, FM refers to Mr. Hoy's testimony where he acknowledged experiencing pain, swelling, and "give-away" episodes with his right knee on a monthly basis from the time of the 1996 surgery through the date of the alleged compensable injury. He stated that the only difference in symptoms after the January 30, 2001, episode was increased pain.

FM further notes that in Mr. Hoy's testimony about the January 30, 2001, incident, he could not remember if he slipped or how he injured himself. The doctor's notes prepared by Dr. Honderich fail to reference any work-related injury, and in Dr. Moffitt's note dated February 6, 2001, he reported that Mr. Hoy "does not feel like this is a workers' compensation claim." Furthermore, Mr. Hoy waited more than three months from the alleged incident to file a workers' compensation claim. While Dr. Cooper did indicate at one time that the March 2001 surgery resulted from the episode at work, he also related that Mr. Hoy's symptoms were similar to those he was previously experiencing, and stated, "Certainly he may have needed surgery eventually anyway." Under these circumstances, FM argues that Mr. Hoy failed to prove a compensable aggravation.

Finally, FM correctly points out that an aggravation, being a new injury with an independent cause, must meet the requirements for a compensable injury. See Crudup v. Regal Ware, Inc., supra. It contends that there was a failure of proof on two essential bases. First, it contends that Dr. Cooper's opinion as to compensability was not stated within a reasonable degree of medical certainty as required by Ark. Code Ann. § 11-9-102(16)(B) (Repl. 2002). Next, it argues that appellee failed to establish a compensable injury with medical evidence supported by objective findings as required by Ark. Code Ann. § 11-9-102(4)(D) (Repl. 2002). In this regard, FM acknowledges the presence of a loose joint and swelling, but submits that these findings were insufficient because they had been intermittently present since the 1996 injury.

We discussed the difference between a recurrence and an aggravation in Maverick Transp. v. Buzzard, 69 Ark. App. 128, 130, 10 S.W.3d 467, 468 (2000), as follows:

An aggravation is a new injury resulting from an independent incident. Farmland Ins. Co. v. DuBois, 54 Ark. App. 141, 923 S.W.2d 883 (1996). A recurrence is not a new injury but merely another period of incapacitation resulting from a previous injury. Atkins Nursing Home v. Gray, 54 Ark. App. 125, 923 S.W.2d 897 (1996). A recurrence exists when the second complication is a natural and probable consequence of a prior injury. Weldon v. Pierce Bros. Constr., 54 Ark. App. 344, 925 S.W.2d 179 (1996). Only where it is found that a second episode has resulted from an independent intervening cause is liability imposed upon the second carrier. Id.

We hold that substantial evidence supports the Commission's decision that Mr. Hoy sustained a compensable injury. While Mr. Hoy did acknowledge having problems with his right knee dating back to 1996, the Commission relied on the fact that it was not until after the January 30, 2001, incident that Mr. Hoy sought medical treatment and missed work. Mr. Hoy testified that he immediately told his supervisor about the accident, had trouble finishing the work day, and visited a doctor about the problem after finishing his shift. Although the initial doctor's report did not reference any work-related events, Dr. Moffitt saw Mr. Hoy two days later and reported, "patient states he was climbing up a ladder and his right knee gave out." Significantly, Mr. Hoy indicated that the knee pain he experienced subsequent to January 30, 2001, was more severe than before, and that unlike the prior occasions, it did not get any better. This was despite conservative treatment that included a month of physical therapy. He stated, "There's no doubt in my mind that that specific incident triggered my knee problems."

While the opinions given by Dr. Cooper were equivocal, he indicated that he was simply relying on the history given by Mr. Hoy in deciding to perform the surgery. According to Dr. Cooper, Mr. Hoy advised him that after the incident at work his knee failed to get better, and Dr. Cooper thus concluded, "Therefore, I think it's safe to say that the surgery resulted from the injury at work from which he failed to recover." It is the Commission's duty to judge credibility of witnesses, see Wal-Mart Stores, Inc. v. Stotts, 74 Ark. App. 428, 58 S.W.3d 853 (2001), and it found Mr. Hoy to be credible. We are bound to defer to the Commission on the issue of Mr. Hoy's credibility, and there was substantial evidence to support the finding that the injury he suffered while climbing the ladder at work constituted an independent intervening cause that triggered the need for surgery.

We next turn to the appellant's argument that there were no objective medical findings to support Mr. Hoy's alleged compensable condition. We reject this argument because there was evidence of knee swelling, which clearly cannot come under the voluntary control of the claimant. While appellant submits that this should not be considered because Mr. Hoy had experienced swelling of the knee during other episodes before the alleged compensable incident, we cannot agree with this interpretation of Ark. Code Ann. § 11-9-102(4)(D) (Repl. 2002). The statute requires medical evidence supported by objective findings, which was present in this case, but does not require the additional criterion suggested by appellant.

Finally, we address appellants argument that Dr. Cooper's opinion did not satisfy Ark. Code Ann. § 11-9-102(16)(B) (Repl. 2002), which provides that medical opinions addressing compensability must be stated within a reasonable degree of medical certainty. We agree that Dr. Cooper's opinion on compensability lacked the definiteness required to satisfy the statute. However, that fact does not require reversal in this case.

In Wal-Mart Stores, Inc. v. VanWagner, 337 Ark. 443, 990 S.W.2d 522, the supreme court held that objective medical evidence is not essential to establish the causal relationship between the injury and a work-related accident. In Crudup v. Regal Ware, Inc., supra, the supreme court affirmed the Commission's opinion denying compensability because the medical opinion addressing compensability was insufficient, and because there was no other evidence to establish a causal relationship between the appellant's employment and carpal tunnel syndrome. However, in the case at bar there was evidence, in the form of Mr. Hoy's testimony, to support a connection between the work-related incident and knee injury. Thus, the lack of a reasonably certain medical opinion on the issue of compensability was not fatal to Mr. Hoy's claim.

Affirmed.

Griffen and Neal, JJ., agree.