Opinion
CLAIM NO. E305441
OPINION FILED APRIL 8, 1997
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by ROBERT RUSSELL, Attorney at Law, Little Rock, Arkansas.
Respondents represented by J. CHRIS BRADLEY, Attorney at Law, North Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed.
OPINION AND ORDER
An Administrative Law Judge entered an opinion and order in the above-captioned claim on June 5, 1996, finding that claimant's fall of October 24, 1993, was a compensable consequence of his work-related knee injury of March 3, 1993.
Respondents now appeal from that opinion and order, contending that claimant's fall amounts to an independent intervening cause of his back injury and that said injury is not a compensable consequence of claimant's work-related injury.
Following our de novo review of the entire record, we specifically find that claimant has proven, by a preponderance of the credible evidence, that his fall of October 24, 1993, was causally connected to his compensable injury of March 3, 1993, and that the back injury resulting from the fall was a compensable consequence of claimant's work-related injury. Accordingly, the decision of the Administrative Law Judge is affirmed.
At the time of his original injury, claimant worked as a patrolman for the Wrightsville Police Department. While participating in police academy training, claimant sustained an extensive left knee injury after jumping from an obstacle course ladder. Claimant subsequently consulted Dr. John Yocum, an orthopedic surgeon, who performed a reconstruction of claimant's anterior cruciate ligament and carried out repairs of both the lateral and medial meniscus on March 19, 1993.
Following this surgery, Dr. Yocum monitored claimant's progress, and noted on May 4, 1993, that claimant would require another six months of recuperation before he could be "completely released from care and . . . return to full, unrestricted regular duty work." By June 25, 1993, claimant appeared to be doing well, and Dr. Yocum noted claimant's report that his knee was "doing pretty good." Claimant's situation seems to have improved even more by August 17:
On return he reported that his leg was feeling pretty good. He said that he was trying to be careful on the leg as much as he can but he has played volleyball and tried to show some kids on his basketball team a few moves under the goal. He has had no swelling, locking or catching, and no giving way.
Even in light of this progress, Dr. Yocum took care to discuss with claimant the "risks of rerupture," and noted that claimant was to be "fitted for a goldpoint anterior cruciate ligament brace." Approximately one month later, on September 14, 1993, Dr. Yocum still felt that claimant's "strength was not yet sufficiently rehabilitated to let him return to full activity." Claimant returned to Dr. Yocum on October 22, and in a letter of October 26, 1993, Dr. Yocum still did not think it appropriate to release claimant to full duty.
On October 24, 1993, claimant fell while taking a shower in his home:
I was just taking a shower, a regular shower, and it just gave out, caused me to fall in the shower . . . I was just standing, taking a shower and, you know, I was backing up to reach over to get some more soap, and I just fell . . . just like . . . just when I fell my leg, my knee was still like this (witness indicating).
Immediately after the fall, claimant experienced the onset of a "real bad sharp pain in the lower part of my back." This prompted claimant to return to Dr. Yocum on November 2, 1993, who diagnosed "low back pain on a mechanical basis due to a sprain." Claimant once again consulted Dr. Yocum on December 20, 1993, this time for follow-up on his knee, and was informed that he remained at "slightly increased risk for re-injury due to strength deficits." Finally, on June 20, 1994, Dr. Yocum stated that he "felt this patient had surely reached maximum improvement."
Claimant's employment as a Wrightsville police officer ended in April, 1994, following the disbandment of the department. According to claimant, Wrightsville's law enforcement was turned over to county authorities, who "didn't really want to accept a person that had been, you know, injured because you've got to go out and run, you know, chase people down." Claimant stated that he was also turned down by the cities of Maumelle and North Little Rock, apparently due to his injury. He was, however, able to obtain a position with the University of Arkansas at Little Rock police department on a relatively light-duty basis.
Unfortunately, claimant's duties at UALR came to include significant amounts of walking and some stair climbing, which Dr. Yocum opined on June 27, 1994, were responsible for exacerbations of his knee and back problems:
I felt that this new exacerbation of his knee and back were due to his increased walking activities at work and alteration of his gait.
Claimant reported back to Dr. Yocum on October 10, 1994, having experienced an acute onset of pain and then swelling in his knee on September 30, 1994. Dr. Yocum expressed concern that claimant may have re-torn his lateral meniscus and that arthroscopic exploration might be necessary. However, by November 10, 1994, claimant no longer experienced recurrent swelling and Dr. Yocum maintained conservative management.
During the entirety of this time, claimant's back continued to present problems, and he stated at the hearing (February 29, 1996) that it "still hurts me a lot." When asked whether his back was better or worse than the day of the actual fall, claimant answered "it's worse," but agreed that it was not bad enough to require his absence from work. Claimant's medical records indicate that he returned to Dr. Yocum for further evaluation of his back on February 21, 1995, and complained of "continued pain in his lower back on a daily basis . . . his pain has been present since a fall in the shower in October of 1993. He reported that this was due to his knee giving out." At this point, Dr. Yocum recommended a course of physical therapy in an effort to alleviate claimant's back problem.
We cannot agree with respondents' assertion that claimant's fall of October 24, 1993, is an independent intervening cause of his resulting back injury. Instead, we are persuaded that claimant's fall in the shower is causally related to his original compensable injury of March 3, 1993, and that the back injury he sustained from his fall is thus a compensable consequence of his original injury.
It is a well-known principle of our workers' compensation law that a claimant's testimony is never considered uncontroverted. Nix v. Wilson World Hotel, 46 Ark. App. 303, 879 S.W.2d 457 (1994). This does not mean, however, that we cannot find a given claimant's testimony to be credible. Indeed, it is the proper function of this Commission to determine the credibility of the witnesses and the weight to be given their testimony. McClain v. Texaco, 29 Ark. App. 218, 780 S.W.2d 34 (1989) (citing Johnson v. Hux, 28 Ark. App. 187, 772 S.W.2d 362 (1989)).
In the instant case, we find claimant's testimony to be credible in its entirety and entitled to considerable weight, and we accept as accurate and truthful his account of falling in the shower on October 24, 1993, after his knee "gave out."
We note, of course, respondents' argument that claimant's own medical records deny that he ever experienced any "locking, catching, or giving way" of his knee. However, we do not believe that this fact alone strips claimant's testimony of its credibility or precludes a finding that he experienced such an episode on October 24, 1993. Dr. Yocum himself appears to have expressed no surprise on February 21, 1995, when claimant informed him that the fall in the shower was precipitated by "his knee giving out." Also, claimant presented a detailed account of previous episodes when his knee would "give way":
Just basically, I was . . . I was still in a brace, so it was more or less when I got up, you know, standing up, my leg would, you know, give out, and I didn't have any crutches because they took the crutches away . . . No. The leg was already straight. I'd be sitting like this (witness indicating) at the office with a brace . . . That's right. And I had the okay to walk on it and put pressure on it . . . And when I did it would give out, but I was able to catch myself.
We also note from claimant's medical records that, as of the date of his fall (October 24, 1993), he remained within the six-month period that Dr. Yocum had opined would be required for full rehabilitation, and was still at an elevated risk of re-injury as late as December 27, 1993. It is thus evident from claimant's medical records, particularly in light of Dr. Yocum's occasional inquiries regarding "catching, locking, or giving way," that claimant was highly susceptible to the sort of occurrence which took place on October 24, 1993. We thus cannot agree with respondents' assertion that the fall of October 24, 1993, was an independent intervening cause of claimant's low back injury.
Accordingly, from claimant's credible testimony and the medical evidence discussed above, we specifically find that his fall of October 24, 1993, was causally related and attributable to his original compensable knee injury of March 3, 1993, and that the back injury resulting from the fall is thus a compensable consequence of claimant's work-related injury.
Based on our de novo review of the entire record, and for the reasons discussed herein, we specifically find that claimant sustained a compensable injury on October 24, 1993, in the form of a compensable consequence of his work-related injury of March 3, 1993. The decision of the Administrative Law Judge must therefore be, and hereby is, affirmed.
All accrued benefits shall be paid in a lump sum without discount and with interest thereon at the lawful rate from the date of the Administrative Law Judge's decision in accordance with Ark. Code Ann. § 11-9-809 (1987).
For prevailing on this appeal before the Full Commission, claimant's attorney is hereby awarded an additional attorney's fee in the amount of $250.00 as provided by Ark. Code Ann. § 11-9-715 (b) (1987).
IT IS SO ORDERED.
DISSENTING OPINION
I respectfully dissent from the majority's opinion finding that the claimant's back injury on October 24, 1993 is a compensable consequence of the claimant's compensable knee injury which occurred on March 3, 1993. Based upon my de novo review of the entire record, I find that the claimant has failed to prove by a preponderance of the evidence that he, in fact, suffered a compensable consequence when he fell.
Claimant testified that after surgery he experienced on a couple of occasions his left knee locking resulting in a fall. However, the medical records fail to substantiate claimant's testimony. A claimant's testimony is never considered uncontroverted. Lambert v. Gerber Products Co., 14 Ark. App. 88, 684 S.W.2d 842 (1985). Nix v. Wilson World Hotel, 46 Ark. App. 303, 879 S.W.2d 457 (1994). In fact, Dr. Yokum's May 25, 1993, August 17, 1993, and September 14, 1993 reports each contradict claimant's testimony. Dr. Yokum's May 25, 1993 correspondence to the Municipal League states: "He said that he had not had any locking or catching." Dr. Yokum's August 17, 1993 report likewise states: "He has had no swelling, locking or catching and no giving way." Finally, Dr. Yokum's September 14, 1993 report states: "On questioning, he said he had no giving way or swelling episodes." The majority has selectively chosen to ignore these medical records.
Moreover, the claimant was seen in Dr. Yokum's office on November 2, 1993 just one and a half weeks after the fall complaining of back pain resulting from his fall in the shower. However, Dr. Yokum's office records from that date do not mention that the claimant's knee locked up precipitating the fall. In fact, Dr. Yokum's office notes state:
Mr. Smith was seen in our office on this date for evaluation of his back. He related that he injured it when he fell in a shower on October 24, 1993. He initially had an onset of back pain in the lower back that continued to the present. he stated that the longer he was up walking about the more the back would aggravate him. He stated that it was pretty much present all the time, but was worse with activity. When he would walk, he had the vague sensation of pain down the posterior right thigh. He denied any sensory changes or weakness. He had no bowel or bladder dysfunction. He did have a history of previous back injury a couple of years ago when he was driving a bob truck, but stated that he had completely gotten over this.
As the claimant's treating physician for the compensable knee injury, Dr. Yokum was particularly interested in whether claimant's knee locked up, caught, or gave way. Thus, in my opinion, Dr. Yokum's report speaks volumes when it fails to mention the claimant's left knee locking on October 24, 1993. If claimant's knee had, in fact, locked up, one would expect Dr. Yokum's office notes to so reflect. However, Dr. Yokum's medical records from November 2, 1993 are silent on this issue. Thus, the absence of any notation regarding the knee causing the fall, in my opinion, clearly discredits claimant's testimony.
On the claimant's second visit following the fall, Dr. Yokum again notes the claimant "was not having any catching or locking symptoms." Again, on June 20, 1994, Dr. Yokum states: "He had no locking, catching or giving way." Again, the majority has apparently overlooked these medical reports.
Whether claimant's knee locked up was extremely important to Dr. Yokum since he continued to ask this question of the claimant on almost every visit after the knee surgery.
Dr. Yokum' s June 27, 1994 correspondence to the Municipal League in which he mentions the claimant's treatment for his back problems is glaringly silent with regards to the knee causing the problem. This report states:
Mr. Smith returned to our Southwest Hospital Clinic on June 22, 1994. On return, he reported that he has experienced some anterior knee pain. He said that his job at the University of Arkansas at Little Rock had changed a bit, and that he now had to do a good bit of walking including stairs. He said that this had aggravated his knee. He had some anterior pain after being up on it for a long time. He said that after his knee started hurting, it made him walk a little bit differently, and this has aggravated his back. He had no radiating lower extremity pain, sensory change or weakness. He had no bowel or bladder dysfunction. I had previously seen him for a back problem over a year ago.
Obviously, missing from this report is any mention that the previous back problem was associated with the claimant's compensable knee injury.
The only medical record which mentions the claimant's knee giving out on October 24, 1993 is Dr. Yokum's February 21, 1995 office note in which the claimant reported for the first time to Dr. Yokum that his knee had given out on October 24, 1993 causing him to fall in the shower. It is apparent that Dr. Yokum has simply recorded in his history a comment made by the claimant for the first time on February 21, 1995. This "history" is nowhere to be found in the 17 months of medical records subsequent to the fall. The record reveals that this "history" did not appear until after claimant retained an attorney to seek benefits for his back problems. Dr. Yokum's treatment of the claimant prior to the fall in the shower and subsequent to the fall in the shower clearly fail to substantiate claimant's allegations that his knee had been locking on numerous occasions and locked on October 24, 1993 resulting in a fall. Accordingly, I find that Dr. Yokum's medical records reporting no history of locking, catching or giving way carry greater weight than the claimant's obviously biased testimony and the one comment in Dr. Yokum's February 21, 1995 report. The many records prior to February 21, 1995 fail to support the claimant's allegations.
Consequently, I find that the claimant has failed to prove by a preponderance of the evidence that his knee actually locked on him on October 24, 1993 resulting in the claimant's fall in the shower. Therefore, I respectfully dissent from the majority opinion.
MIKE WILSON, Commissioner