Emberton, 033021 ARWC, G902239

• Case Date: March 30, 2021
• Court: Kansas

VICKY EMBERTON, EMPLOYEE, CLAIMANT CENTRAL ARK. DEV. COUNCIL, INC., EMPLOYER, RESPONDENT NO. 1 ATA WORKERS’ COMPENSATION TRUST/ RISK MG’T RESOURCES, INC., INSURANCE CARRIER/TPA, RESPONDENT NO. 1 STATE OF ARKANSAS, DEATH & PERMANENT TOTAL DISABILITY TRUST FUND, RESPONDENT NO. 2 CLAIM NO. G902239 Arkansas Workers Compensation Before the Arkansas Workers' Compensation Commission March 30, 2021          Hearing conducted before the Arkansas Workers’ Compensation Commission, Administrative Law Judge (ALJ) Mike Pickens, on December 30, 2020.          The claimant was represented by the Honorable Whitney B. James, Rainwater Holt & Sexton, Little Rock, Pulaski County, Arkansas.           Respondent No. 1 was represented by the Honorable Jarrod Parrish, Worley, Wood & Parrish, P.A., Little Rock, Pulaski County, Arkansas.           Respondent No. 2, represented by the Honorable Christy L. King, Little Rock, Pulaski County, Arkansas.           MIKE PICKENS ADMINISTRATIVE LAW JUDGE          INTRODUCTION          In the Amended Prehearing Order filed October 21, 2020, the parties agreed to the following stipulations, which they affirmed on the record at the hearing:

1. The Arkansas Workers’ Compensation Commission (the Commission) has jurisdiction over this claim.

2. The employer/employee/carrier-TPA relationship existed at all relevant times including March 29, 2019, when the claimant sustained a compensable injury to her left knee.

3. The claimant’s average weekly wage (AWW) is $909.66, entitling her to weekly compensation rates of $606.00 for temporary total disability (TTD), and $455.00 for permanent partial disability (PPD) benefits.

4. Respondent No. 1 initially accepted this claim as “medical only,” paid some medical benefits, and for the claimant’s one (1)-time-only change of physician (COP) appointment, and thereafter controverted the COP’s recommendation for additional medical treatment.

5. The parties specifically reserve any and all other issues for future determination and/or hearing.

(Commission Exhibit 1 at 1-2; Hearing Transcript at 3-4). Pursuant to the parties’ mutual agreement the issues litigated at the hearing were:

1. Whether the surgery the claimant’s COP has recommended for her left knee is related to, and reasonably necessary for, treatment of her March 29, 2019 compensable injury, or is necessitated by an independent intervening cause.

2. Whether the claimant is entitled to TTD benefits beginning and through dates yet to be determined as a result of the recommended surgery.

3. Whether the claimant’s attorney is entitled to a controverted fee on these facts.

4. The parties specifically reserve any and all other issues for future litigation and/or determination.

(Comms’n Ex. 1 at 2; T. 4-5).          The claimant, a bus driver for Central Arkansas Development Council, Inc. (CADA), contends that on March 29, 2019 she was helping a passenger with his walker when she stepped down from the bus onto unlevel ground, injuring her left knee. She sought medical treatment the next day, and underwent an MRI on April 4, 2019 that revealed a complex meniscus tear. She was referred to Dr. Charles Pearce who opined her injury was an exacerbation of pre-existing arthritis. Dr. Pearce placed the claimant at maximum medical improvement (MMI) on May 14, 2019. The claimant requested and obtained a COP to Dr. Joel Smith on October 29, 2019. Dr. Smith has opined the claimant’s lateral meniscus tear was acute, the result of her specific incident injury on March 29, 2019, and he has recommended an arthroscopy of the left knee with partial lateral meniscectomy. Respondent No. 1 has denied the surgery. The claimant contends she is entitled to medical benefits, TTD benefits in an amount yet to be determined, as well as a controverted attorney’s fee. She hereby specifically reserves all other issues for future litigation and/or determination. (Comms’n Ex. 1 at 2-3; T. 4-5).          Respondent No. 1 contends it has paid all appropriate medical and indemnity benefits to which the claimant is entitled. Respondent No. 1 contends the claimant’s need for medical treatment, if any, is associated with a pre-existing and underlying condition(s), and not her compensable injury. Alternatively, Respondent No. 1 contends the claimant suffered a second injury motor vehicle accident on June 23, 2020, which may well constitute an independent intervening cause necessitating her current need, if any, for medical treatment. (Comms’n Ex. 1 at 3; T. 4-5).          Respondent No. 2 waives its right to appear at the hearing and defers to the outcome of the litigation. (Comms’n Ex. 1 at 3).          STATEMENT OF THE CASE          The claimant, Ms. Vicky Diane Emberton (the claimant), was 60 years old at the time of the hearing, and 58 years old on March 29, 2019, the day of her compensable left knee injury. The claimant testified she has been employed with CADA two (2) years as a bus driver. In addition to driving clients to and from their destinations, her job duties included helping them on and off the bus if they required assistance. (T. 8-9).          On March 29, 2019, the day of her compensable left knee injury, the claimant stepped out of the bus, left leg first, to help a client with his walker. Her left leg and foot landed awkwardly on unlevel ground, and she immediately and suddenly felt and heard an audible “pop” in her left knee. She limped over to the client, helped him with his walker, and got back on the bus. When she got on the bus, she looked at her ankle and noticed “it was swelled, and my knee hurt real bad.” (T. 11; 10-11; 20-21). Her employer sent her for medical treatment the following morning, March 30, 2019. The Baptist Health/Malvern medical record from this visit reflects the claimant told the attending physician she had stepped off the bus while helping a customer when she “felt a pop” and then noticed swelling in her left knee, which the attending physician noted was present at the time of his physical examination. (Claimant’s Exhibit 1 at 1).          X-rays taken on this initial March 30, 2019 examination revealed no fracture, but arthritic changes in the claimant’s left knee involving primarily the lateral and patellofemoral joint compartments, “along with chondrocalcinosis, suggesting CPPD.” CPPD is the acronym for Calcium Pyrophosphate Deposition Disease, also known as “CPP crystal arthritis,” and “pseudogout” (CPPD, or pseudogout). CPPD is a type of arthritis which typically presents acutely (meaning sudden onset from a specific precipitating incident generally identifiable by time and place) resulting in pain and swelling. CCPD is a type of arthritis where calcium pyrophosphate crystals form in the synovial fluid of a joint, most commonly the knee, thus the “pseudogout” moniker. Physicians generally treat this relatively rare form of arthritis with therapy protocols used for acute gouty arthritis which are aimed at reducing painful swelling, and not surgery. Common treatment strategies include intraarticular glucocorticoids; oral colchicine; nonsteroidal anti-inflammatory drugs (NSAIDS); systemic...