Mark L. Thomas v. Entergy Arkansas, Inc.

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION II

CA05-667

December 14, 2005

MARK L. THOMAS

APPELLANT

v.

ENTERGY ARKANSAS, INC.

APPELLEE

APPEAL FROM THE ARKANSAS WORKERS' COMPENSATION

COMMISSION [NO. F308759]

REVERSED AND REMANDED

Andree Layton Roaf, Judge

Appellant Mark L. Thomas appeals from a Workers' Compensation Commission (Commission) decision denying him benefits for a total knee replacement he received after suffering an on-the-job injury while employed by appellee, Entergy Arkansas, Inc. The Commission determined that the evidence demonstrated that Thomas suffered from a pre-existing degenerative condition that eventually would have required surgery and that Thomas failed to prove by a preponderance of the evidence that treatment he received after his new injury was causally related to an earlier compensable knee injury. On appeal, Thomas argues (1) that the Commission erred in finding that the evidence does not support a finding that Thomas sustained a new injury or aggravation of his first injury, but rather, that he suffered from a pre-existing degenerative condition that would have required him to have surgery anyway; (2) that the major-cause analysis is not applicable when a claimant is only seeking medical and temporary total disability benefits; and (3) that the Commission erred in giving the testimony of Thomas's supervisors more weight and credibility than that of his two co-workers. We reverse and remand for an award of benefits.

Thomas, a twenty-six year employee of Entergy Arkansas, Inc., testified that on or about March 23, 2003, he re-injured his right knee climbing several flights of stairs while in the process of training a co-worker, Wayne Jackson. Mr. Jackson corroborated Thomas's story. Thomas had suffered a previous on-the-job compensable injury to his right knee in May of 1998 when he stepped through a threshold and hyperextended his knee. In June 1998, Thomas's physician performed an arthroscopic medial meniscectomy on his right knee after determining that he suffered from a degenerative condition as well as a tear of the medial meniscus.

On April 8, 2003, after his new injury, Thomas's family physician, Dr. Humphreys, gave him a shot, put him in a knee brace and took him off work for a couple of days. Thomas's condition did not improve, so Dr. Humphreys referred him to Dr. Young. In his deposition, Dr. Young stated that when he saw Thomas, he explained that he had been going up some steps and loaded or jammed his knee. Dr. Young explained that "axially loaded means a pretty significant compression force across the joint surface" and that the meniscus, the cartilage between the bones, is a cushion, and that if a portion is removed, there are increased stresses over the joint. He further explained that Thomas, a fairly young forty-six year old man, had a lot of wear and tear on his knee and was predisposed to problems, partially as a result of having some meniscus removed after the 1998 injury. Dr. Young performed arthroscopy on July 2, 2003. He said that he found a small tear of the medial meniscus and "pretty extensive degenerative changes in his medial compartment." After the arthroscopy, Thomas continued to limp significantly, and required a fair amount of medicine. Thomas still felt quite a lot of pain, and his limp started to cause back pain. On September 10, 2003, Dr. Young performed total knee replacement surgery on Thomas, although such a procedure is unusual for someone only forty-six years old. Thomas recovered well from the surgery, and returned to work on February 11, 2004.

Dr. Young stated that the degeneration of the knee was secondary to the lack of meniscus, and further stated "I think the incident he had on the stairs was a significant force across an already degenerative knee, and I think it exacerbated his symptoms, caused a small tear of his remaining cartilage and pretty significantly inflamed his knee." Dr. Young noted that trauma is a factor that rapidly advances knee degeneration, and further asserted that he believed within a reasonable degree of medical certainty that the major causes of Thomas's increased degenerative changes were the traumas his knee received in 1998 and 2003, with the 2003 trauma playing a significant role by aggravating Thomas's previous condition.

Dr. James Mulhollan, an orthopedic surgeon with a practice limited to arthroscopic knee surgery, had previously evaluated Thomas in 2000 regarding his 1998 injury. However, a conflict developed between them and Thomas ultimately was operated on by Dr. Kincheloe after the 1998 injury. Thomas apparently fainted when Dr. Mulhollan attempted to explain to him the "reality" of his predicament with respect to his knee. In his 2003 deposition, Dr. Mulhollan declared that the second job injury was not the major problem in Thomas's case. He said that the meniscus tear, although occurring by a traumatic mechanism, was actually "a manifestation of the underlying illness rather than the root etiology of the knee problem." Dr. Mulhollan also stated that an abnormal knee is more easily injured, and that people with pathologic joints were more inclined to receive injuries from relatively innocuous mechanisms. Dr. Mulhollan asserted that within a reasonable degree of medical probability that neither the 1998 injury and the subsequent surgery or the 2003 injury served as the major cause of the condition that required Thomas to have his knee replaced; rather, the degenerative process in his knee was the major cause, and Thomas would have required total knee replacement regardless of whether an injury occurred. Dr. Mulhollan acknowledged that axial loading is a traumatic event and that, while the degeneration was more than fifty percent of the cause of the total knee replacement, the injuries from 1998 and 2003 were contributing factors. The Commission referred extensively to Dr. Mulhollan's 2000 and 2003 opinions and testimony in resolving that Thomas should be denied benefits.

When a workers' compensation claim is denied because the claimant fails to establish by a preponderance of the evidence that he is entitled to compensation, the substantial evidence standard of review requires the appellate court to affirm the Commission if its opinion displays a substantial basis for the denial of the relief sought by the worker. See Williams v. L&W Janitorial, Inc., 85 Ark. App. 1, 145 S.W.3d 383 (2004); Oliver v. Guardsmark, Inc., 68 Ark. App. 24, 3 S.W.3d 336 (1999). The appellate court views the evidence and all reasonable inferences deducible therefrom in a light most favorable to the findings of the Commission and affirms if the decision is supported by substantial evidence. Heptinstall v. Asplundh Tree Expert Co., 84 Ark. App. 215, 137 S.W.3d 421 (2003). Substantial evidence is such relevant evidence which reasonable minds might accept as adequate to support a conclusion of the Commission. Id. The issue on appeal is not whether this court might have reached a different result from that reached by the Commission or whether the evidence would have supported a contrary finding; if reasonable minds could reach the Commission's conclusion, we must affirm its decision. Id. The Commission is required to weigh the evidence impartially without giving the benefit of the doubt to any party. Id. The Commission also has the duty of weighing the medical evidence as it does any other evidence. Id. On review, we recognize the Commission's function to determine the credibility of witnesses and the weight to be given their testimony. Wal-Mart Stores, Inc. v. Stotts, 74 Ark. App. 428, 58 S.W.3d 853 (2001). The Commission is not required to believe any witness, but may accept and translate into findings of fact only those portions of the testimony that it deems worthy of belief. Pina v. Wal-Mart Stores, Inc., ____ Ark. App. ____, ____ S.W. 3d ____ (May 11, 2005). These standards cannot totally insulate the Commission from judicial review, and this court will reverse a decision of the Commission where it is convinced that fair-minded persons with the same set of facts before them could not have reached the same conclusion. Wade v. Mr. C. Cavenaugh's, 25 Ark. App. 237, 756 S.W.2d 923 (1988).

For purposes of workers' compensation, an aggravation is a new injury resulting from an independent incident; and a recurrence is not a new injury but is merely another period ofincapacitation resulting from a previous complication. Maverick Transp. v. Buzzard, 69 Ark. App. 128, 10 S.W.3d 467 (2000). It is well settled that for purposes of workers' compensation, an employer takes the employee as he finds him. See, e.g., Williams v. L&W Janitorial, Inc., 85 Ark. App. 1, 145 S.W.3d 383 (2004); Hermitage Baptist Temple v. Robinson, 82 Ark. App. 460, 120 S.W.3d 150 (2003); Smith Blair, Inc. v. Jones, 77 Ark. App. 273, 72 S.W.3d 560 (2002); Oliver v. Guardsmark, Inc., 68 Ark. App. 24, 3 S.W.3d 336 (1999). An aggravation of a pre-existing noncompensable condition by a compensable injury is, itself, compensable. Hermitage Baptist Temple, supra.

In Williams v. L&W Janitorial, Inc., supra, the claimant appealed from the Commission's denial of her claim for medical benefits and temporary total disability. Appellant sustained a compensable work-related injury to her knee in 1996; she suffered a subsequent work-related injury to the same knee in 2000. Appellant's X-rays showed the development of a lot of arthritis, and one of her treating physicians testified that the major reason for doing a total knee replacement on appellant was her pre-existing arthritis and that most of the cause of the knee replacement pre-existed her job injury. Id. The doctor also testified that the injury "had some effect on her knee," and that the fall was a contributing factor to her occupational disability, although he could not say that it was fifty percent of the cause due to the high level of arthritis. Id at 6.

Dr. James Mulhollan also testified in Williams's case and stated that the major cause of her knee replacement would not be her 2000 injury, but her underlying degenerative process; the injury merely accelerated the process. Id. This court reversed the Commission's denial of benefits, finding that the appellees had to take appellant as they found her; that there was no dispute that appellant's knee injury was compensable; and that the knee injury did not have to be the major cause of the need for the knee replacement surgery. Id. This court also pointed out that, while both doctors agreed that appellant's injury was not the major cause of her need for knee replacement surgery, they both also testified that the injury was at least a factor in the resulting surgery. Williams v. L&W Janitorial, Inc., supra, see also Artex Hydrophonics, Inc. v. Pippin, 267 Ark. 1014, 593 S.W.2d 473 (Ark. App.1980) (affirming Commission's grant of medical expenses to claimant who sustained a compensable on the job injury when an accident resulted in compression fractures to four or five of his vertebrae where subsequent tests revealed that claimant had multiple myeloma which weakened his bones and predisposed him to the compression fractures he sustained during the injury); Hermitage Baptist Temple, supra (affirming the Commission's grant of benefits to a claimant who suffered an admittedly compensable injury that apparently made a pre-existing bone tumor symptomatic).

In the present case, there can be no question that Thomas suffered a compensable aggravation of a preexisting condition of his right knee on March 23, 2003. While there was some conflicting testimony about the exact date and time Thomas informed his supervisors of his injury and filled out his incident reports, there is no denying that all witnesses testified that Thomas did experience the injury, that Thomas's limp became more noticeable after March 23, and that Thomas was in a great deal more pain.

Although Drs. Young and Mulhollan clearly conflicted on whether Thomas's injury was the major cause of his need for total knee replacement, they agreed that both his injury in 1998 and his injury in 2003 were contributing factors to his need for the surgery. This case is clearly on point with Williams v. L&W Janitorial, Inc., supra. While Thomas's pre-existing condition could have eventually resulted in total knee replacement, there is no dispute that his injuries had aggravated and accelerated the condition.

Thomas's final two points of appeal are misplaced. While it is true that the major-cause analysis is not applicable to this case, see Williams v. L&W Janitorial, Inc., supra, and both doctors clearly testified in terms of major cause, it does not appear that the Commission used the major-cause analysis to reach its decision to deny benefits. The Commission simply failed to apply the established law that aggravation of even a noncompensable injury is itself compensable. In addition, while it is the function of the Commission to weigh the evidence and determine the credibility of the witnesses, and the Commission is free to believe one witness over another, there is no indication that the Commission gave more weight and credibility to the testimony of Thomas's supervisors than toThomas's co-workers. In fact, the Commission's opinion makes no mention of any of their testimony, instead giving total credence to Dr. Mulhollan's suggestion that Thomas's degenerative knee condition would have required him to have total knee replacement eventually. The Commission found that Thomas had not proved that he suffered an aggravation of his 1998 injury mainly because his knee surgery was attributable to his pre-existing degenerative condition and not because he did not provide credible testimonial and objective medical evidence to establish that he suffered an injury on March 23, 2003.

In sum, Entergy Arkansas had to take Thomas as it found him; it was well aware that Thomas had suffered an on-the-job compensable knee injury in 1998. Thomas continued to work for the company, and by all accounts was an excellent, trust-worthy, and dependable worker. Aggravation of a pre-existing non-compensable condition by a compensable injury is compensable; thus, Thomas was entitled to treatment for his knee condition. Although there are some discrepancies in the testimony, the witnesses all essentially agree that Thomas sustained some type of injury on March 23, 2003, and that this injury was at least a contributing factor in his need for total knee replacement. Under these facts, fair-minded persons would not reach the same conclusion as the Commission.

Reversed and remanded for an award of benefits.

Crabtree and Baker, JJ., agree.