{"id":"alj-G903306-2023-07-11","awcc_number":"G903306","decision_date":"2023-07-11","opinion_type":"alj","claimant_name":"Dale Bryant","employer_name":"City Of North Little Rock","title":"BRYANT VS. CITY OF NORTH LITTLE ROCK AWCC# G903306 JULY 11, 2023","outcome":"granted","outcome_keywords":["granted:3"],"injury_keywords":["knee","back"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads//Bryant_Dale_G903306_20230711.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Bryant_Dale_G903306_20230711.pdf","text_length":34132,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. G903306 \n \n \nDALE BRYANT, EMPLOYEE CLAIMANT \n \nCITY OF NORTH LITTLE ROCK, \n SELF-INSURED EMPLOYER RESPONDENT NO. 1 \n \nARK. MUN. LEAGUE, \n THIRD-PARTY ADMR. RESPONDENT NO. 1 \n \nDEATH & PERMANENT TOTAL DISABILITY \n TRUST FUND RESPONDENT NO. 2 \n \n \nOPINION FILED JULY 11, 2023 \n \nHearing  before  Administrative  Law  Judge  O.  Milton  Fine  II  on  May  11,  2023,  in  Little \nRock, Pulaski County, Arkansas. \n \nClaimant represented  by  Ms.  Laura  Beth  York  and  Mr.  Tanner  Thomas,  Attorneys  at \nLaw, Little Rock, Arkansas. \n \nRespondents No. 1 represented by Ms. Mary K. Edwards, Attorney at Law, North Little \nRock, Arkansas. \n \nRespondent  No.  2,  represented  by  Mr.  David  L.  Pake,  Attorney  at  Law,  Little  Rock, \nArkansas, excused from participation. \n \n \nSTATEMENT OF THE CASE \n On May 11, 2023, the above-captioned claim was heard in Little Rock, Arkansas.  \nA prehearing conference took place on  March 6, 2023.  The Prehearing Order entered \non that date pursuant to the conference was admitted without objection as Commission \nExhibit  1.    At  the  hearing,  the  parties  confirmed  that  the  stipulations,  issues,  and \nrespective contentions were properly set forth in the order. \n\n2 \nStipulations \n At  the  hearing,  the  parties  discussed  the  stipulations  set  forth  in  Commission \nExhibit 1.  They are the following, which I accept: \n1. The previous decision is binding on this proceeding under the Law of the \nCase Doctrine. \n2. Claimant  reached  maximum  medical  improvement  and  the  end  of  his \nhealing period on August 1, 2022. \n3. Claimant  was  assigned  an  impairment  rating  of  fifty  percent  (50%)  to  the \nlower  extremity  in  connection  with  his  stipulated  compensable  right  knee \ninjury.  Respondents No. 1 accepted this rating and are paying permanent \npartial disability benefits pursuant thereto. \nIssues \n At  the  hearing,  the parties  discussed the  issues  set forth  in  Commission  Exhibit \n1.  The following were litigated: \n1. Whether Claimant is permanently and totally disabled. \n2. Whether Claimant is entitled to a controverted attorney’s fee. \n All other issues have been reserved. \nContentions \n The respective contentions of the parties read as follows: \n Claimant: \n 1. On April 3, 2019, Claimant fell in the scope and course of employment and \ninjured  his  right  knee.    Respondents  No.  1  accepted  the  claim  as \ncompensable and paid for medical benefits. \n\n3 \n 2. An MRI on May 1, 2019, revealed a medial meniscus tear.  Claimant was \nsent  to  Dr.  Kirk  Reynolds,  who  performed  surgery  on  May  28,  2019.  \nClaimant  was  still  in  pain,  but  Dr.  Reynolds  released  him  at  maximum \nmedical   improvement   with   no   restrictions   and   a   zero   percent   (0%) \nimpairment  rating  on October  9,  2019.    Thereafter,  Claimant  requested a \nchange  of  physician  to  Dr.  Joel  Smith  and  underwent  another  MRI.  \nFollowing  the  MRI  and  conservative  treatment,  Claimant  underwent  total \nknee  replacement  surgery  on  September  23,  2021.    Still  in  pain,  he  was \nreferred by Smith to Dr.  Paul Edwards for additional treatment.  Edwards \nopined   that   Claimant   suffered   a   failed   total   knee   replacement   and \nrecommended  a  revision  surgery.  Following  this  procedure,  Claimant \nsuffered a massive hematoma on his right knee that required irrigation and \ndebridement. \n3. On  August  1,  2022,  Dr.  Edwards  placed  Claimant  at  maximum  medical \nimprovement and noted that he uses a cane, is in constant pain, and that \nhis right leg gives way at times.  Claimant underwent a functional capacity \nevaluation  that  reflected  that  he  gave  a  reliable  effort,  with  50  of  52 \nmeasures within expected limits, and showed that he could work within the \nSedentary  classification.    As  a  result,  Edwards  assigned  Claimant  a  fifty \npercent    (50%)    lower-extremity    rating    and    permanent    sedentary \nrestrictions.    Respondents  No.  1  accepted  this  rating  and  began  paying \nbenefits pursuant thereto. \n\n4 \n4. Claimant  is  a  64-year-old  man  with  a  ninth-grade  education.    His  entire \nwork  history  consists  of  heavy  manual  labor.    He  does  not  have  any \nappreciable  computer  skills.    Following  his  release  at  maximum  medical \nimprovement, he was terminated by the respondent employer, who could \nnot   accommodate   his   restrictions.      Claimant   requested   vocational \nrehabilitation  on  October  6,  2022.    Respondents  No.  1  accepted  this  on \nOctober 21, 2022, and sent him to Keondra Hampton with Systemetic.  In \na report dated November 17, 2022, Ms. Hampton related that she had met \nwith  Claimant.    She  opined  that  he  would  not  be  able  successfully to \nreturn  to  the  workforce  based  upon  the  records  that  she  had  reviewed.  \nHowever,  Respondents  No.  1  have  denied  that  he  is  permanently  and \ntotally disabled. \n5. Claimant contends that he is permanently and totally disabled as a result \nof  the  work  injury  that  occurred  on  April  3,  2019,  and  that  his  attorney  is \nentitled to an attorney’s fee. \n Respondents No. 1: \n 1. Respondents   No.   1   contend   that   Claimant    cannot   prove   by   a \npreponderance   of   the   evidence   that   he   is   permanently   and   totally \ndisabled. \n Respondent No. 2: \n 1. The Trust Fund defers to the outcome of litigation on the issue of whether \nClaimant is permanently and totally disabled.  Therefore, it does not owe a \n\n5 \nfee  on  any  indemnity  benefits  that  may  be  awarded  in  this  proceeding.  \nThe Trust Fund waives its right to attend the hearing thereon. \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n After  reviewing  the  record  as  a  whole,  including  medical  reports,  deposition \ntestimony,  documents,  and  other  matters  properly  before  the  Commission,  and  having \nhad  an  opportunity  to  hear  the  testimony  of  Claimant  and  to  observe  his  demeanor,  I \nhereby  make  the  following  findings  of  fact  and  conclusions  of  law  in  accordance  with \nArk. Code Ann. § 11-9-704 (Repl. 2012): \n1. The  Arkansas  Workers’  Compensation  Commission  has  jurisdiction  over \nthis claim. \n2. The stipulations set forth above are reasonable and are hereby accepted. \n3. Claimant  has  proven  by  a  preponderance  of  the  evidence  that  he  is \npermanently and totally disabled. \n4. Claimant  has  proven  by  a  preponderance  of  the  evidence  that  he  is \nentitled to a controverted attorney’s fee under Ark. Code Ann. § 11-9-715 \n(Repl.  2012)  on  the  permanent  and  total  disability  benefits  awarded \nherein.  This is the responsibility of Respondents No. 1. \nCASE IN CHIEF \nSummary of Evidence \n Claimant was the sole witness. \n In  addition  to  the Prehearing  Order  discussed  above,  exhibits  admitted  into \nevidence  in  this  case  were  Claimant’s  Exhibit  1, a  compilation  of  his  medical  records, \n\n6 \nconsisting of six abstract/index pages and 143 numbered pages\n1\n thereafter; Claimant’s \nExhibit  2,  his  vocational  evaluation  report,  consisting  of  one  index  page  and  seven \nnumbered  pages  thereafter;  Respondents  No.  1  Exhibit  1,  another  compilation  of \nClaimant’s  medical  records,  consisting  of  one  index  page  and 41  numbered  pages \nthereafter; and Respondents No. 1 Exhibit 2, the medical and indemnity payout histories \nin this claim, consisting of one index page and eight numbered pages thereafter. \n In  addition,  and  without  objection,  the  transcript  of  the  March  31,  2021, hearing \non this claim has been incorporated herein in its entirety by reference. \nAdjudication \n A. Procedural History \n An assessment of the issues at bar first requires a recounting of the procedural \nhistory of this matter.  On March 31, 2021, the first hearing was held on this claim.  The \nApril 20, 2021, opinion thereon contains the following findings of fact and conclusions of \nlaw: \n1. The  Arkansas  Workers’  Compensation  Commission  has  jurisdiction  over \nthis claim. \n2. The stipulations set forth [below] are reasonable and are hereby accepted: \nA. The   employee/self-insured employer   relationship   existed   at   all \nrelevant times,  including  April  3,  2019,  when  Claimant  sustained a \ncompensable right knee injury. \nB. Claimant’s average weekly wage was $240.06. \n \n \n1\nPlaced  at  the  end  of  this  exhibit,  at  pages  127-45,  are  Claimant’s  treatment \nrecords  from  Concentra  Clinic  from  April  9,  2019,  through  May  3,  2019.  Claimant’s \n\n7 \n3. Claimant  has  proven  by  a  preponderance  of  the  evidence  that  he  is \nentitled  to  additional  medical  treatment  in  the  form  of  a  partial  right  knee \nreplacement and related treatment. \nThis decision was not appealed.  The earlier opinion is thus binding on this proceeding \nunder  the  Law  of  the  Case  Doctrine;   and it  is res  judicata.   See  Thurman  v.  Clarke \nIndustries, Inc., 45 Ark. App. 87, 872 S.W.2d 418 (1994). \nB. Permanent and Total Disability \n Introduction.    Claimant  has now  contended  that  he  is  permanently  and  totally \ndisabled.  Respondents No. 1 have argued otherwise. \n Standards.  The parties have stipulated that Claimant sustained a compensable \ninjury to  h  is  right  knee.    This  is  a  scheduled  injury.   See  Ark.  Code  Ann.  §  11-9-\n521(a)(3)  (Repl.  2012).    Section  11-9-519(e)(1)  defines  “permanent  total  disability”  as \nfollows:  “inability, because of compensable injury or occupational disease, to earn any \nmeaningful wages in the same or other employment.”  A claimant who has sustained a \nscheduled injury is limited to the applicable allowances in § 11-9-521, and such benefits \ncannot be  increased  by  considering  wage-loss  factors.  Federal  Compress  &  Whse.  v. \nRisper, 55 Ark. App. 300, 935 S.W.2d 279 (1996). \n Arkansas Code Annotated § 11-9-102(4)(F)(ii) (Repl. 2012) provides: \n(a)  Permanent  benefits  shall  be  awarded  only  upon  a  determination  that \nthe   compensable   injury   was   the   major   cause   of   the   disability   or \nimpairment. \n \n(b)  If  any  compensable  injury  combines  with  a  preexisting  disease  or \ncondition or the natural process of aging to cause or prolong disability or a \nneed  for  treatment,  permanent  benefits  shall  be  payable  for  the  resultant \n \ncounsel is respectfully requested in the future to adhere to the Prehearing Order, which \nstates that medical records “must be arranged in chronological order.” \n\n8 \ncondition  only  if  the  compensable  injury  is  the  major  cause  of  the \npermanent disability or need for treatment. \n \n“Major cause” is more than fifty percent (50%) of the cause, and has to be established \nby a preponderance of the evidence.  Id. § 11-9-102(14).  “Disability” is the “incapacity \nbecause  of  compensable  injury  to  earn,  in  the  same  or  any  other  employment,  the \nwages which the employee was receiving at the time of the compensable injury.”  Id. § \n11-9-102(8). \n A claimant’s testimony is never considered uncontroverted.  Nix v. Wilson World \nHotel,  46  Ark.  App.  303,  879  S.W.2d  457  (1994).    The  determination  of a  witness’ \ncredibility and how much weight to accord to that person’s testimony are solely up to the \nCommission.  White v. Gregg Agricultural Ent., 72 Ark. App. 309, 37 S.W.3d 649 (2001).  \nThe  Commission  must  sort  through  conflicting  evidence  and  determine  the true  facts.  \nId.  In so doing, the Commission is not required to believe the testimony of the claimant \nor  any  other  witness,  but  may  accept  and  translate  into  findings  of  fact  only  those \nportions of the testimony that it deems worthy of belief.  Id. \n Evidence.  Claimant is 64 years old.  He was unsure of when he left school; but \nhe was certain that he  completed the ninth  grade.  His testimony was that he dropped \nout “because I had a family that I had to take care of.”  Despite his lack of an extensive \nformal education, Claimant is able to read and write.  He joined the United States Army \nin the 1970s and completed basic training.  But because of an issue that arose involving \nhis  two  minor  children,  to  whom  he  was  a  single  parent,  he  received  a  Less-Than-\nHonorable  Discharge  in  order  to  rejoin  them.    Eventually,  the  status  of  his  discharge \nwas  changed  to  Honorable.  Claimant eventually  married.   His  children are  grown  and \ngainfully employed. \n\n9 \n The   work   history   of   Claimant   shows   that   he   has   been   employed   in   the \nconstruction  industry.    Moreover,  he  has  been  a  dishwasher,  a  security  guard,  and a \njanitor.  His construction job involved “walking the beams, hanging jacks, help[ing] build \nthe deck, [and] help[ing] them with the concrete.”  In this capacity, he had to walk on an \nelevated surface while wearing a safety harness.  His custodial positions have involved \nvacuuming, mopping, and emptying trash, among other tasks. \n The  following  exchange  took  place  during  Claimant’s  testimony  in  the  2021 \nhearing: \nQ. Describe what happened on April 3, 2019. \n \nA. I was wearing a back—you have to have a back-vac.  It’s a vacuum \ncleaner  that  you  strap  around  your  back.    And  I  was  doing  stairs \nand I got entangled in the cord and lost my balance. \n \nQ. Did you fall all the way to the ground? \n \nA. No.  I just did the next step and it twisted and popped. \n \nQ. Okay. \n \nA. And after that, I was having a lot of pain, and so I reported it to my \nsupervisor and we filled out an accident report. \n \nQ. What body part did you injure? \n \nA. My right knee. \n \n Thereafter, he underwent an MRI of his right knee, which showed that he had a \nmeniscal  tear  and  bone  fragments  in  the  joint.    He  began  treating  with  Dr. Kirk \nReynolds.  On May 28, 2019, Reynolds performed arthroscopic surgery.  Following this, \nClaimant  went  to  physical  therapy.  However,  the  surgery  did  not  alleviate  his  knee \nproblems.  As  Claimant  testified, “[i]t  [his  knee]  never  got  right.”    Eventually,  Dr. \nReynolds released Claimant to light duty and then full duty.  Claimant’s testimony during \n\n10 \nhis  first  hearing  was  that  he  had  problems  performing  his  duties  at  the  library:   “I  was \nhaving difficulty with the stairs and moving at a  real fast pace and a lot of walking and \nstanding.”  He  disagreed  with  the  decision  of  Reynolds  to  return  him  to  regular  duty.  \nClaimant  elaborated  at  that  time:   “I’m  still  hurting,  I’m  still  having  a  lot  of  pain,  you \nknow, doing my job.  But I have to do it because I’m raising my grandkids, so I’ve got to \ndo it.”  Later, he stated: \nIt's pain, and after I do it, then it might be the next day I’m having a difficult \ntime getting out of the bed or I’m putting Icy Hot or Ben Gay or something \nand then wrapping it up to keep the heat in, just anything to try to make it \nfeel  better.    And  taking  Advil,  Tylenol,  you  know,  and  elevating  it.    And  I \njust go ahead on and go back to work. \n \n Following  a  change-of-physician order  that  Claimant  sought  and  received  from \nthe  Commission,  he  began  treating  with  Dr.  Joel  Smith.    The  first  treatment  Smith \nadministered  was  an  injection  of  the  knee.    Claimant’s  testimony  during  the  2021 \nhearing was that he obtained relief from this; in fact, he felt like he no longer needed his \nknee brace, which he began using following the accident.  But the effects of the injection \ndid not last.  Claimant had to resume use of the brace.  He wanted to undergo a second \ninjection.    But  other  than  additional  physical  therapy,  which  Claimant  stated  that  he \nreceived,  the  treatment  that  Dr.  Smith  recommended  consisted  of  a  partial  right  knee \nreplacement.    Respondents  No.  1  refused  to  approve  this  surgery;  but  as  alluded  to \nabove, the undersigned in the previous opinion directed that they do so. \n The  medical  records  in  evidence  show  that  the  surgery  that  Smith  ended  up \nperforming,   on   June   17,   2021,   was   a   total—not   partial—knee   replacement.  \nNonetheless, Respondents No. 1 covered this treatment.  Because Claimant developed \narthrofibrosis, Dr. Smith had to operate again on September 23, 2021.  In that instance, \n\n11 \nhe  performed  a  right  knee  manipulation  under  anesthesia.    However,  this  did not \nameliorate his symptoms. \n Dr.  Paul  Edwards  on  December  20,  2021,  diagnosed  Claimant  as  having \na”[f]ailed  right  total  knee  replacement.”  He  recommended  that  a  revision  total  knee \nreplacement take place, adding:  “I think he really has 2 issues here:  Progression of an \nosteolytic  lesion  in  the  lateral  femoral  condyle  with  likely aseptic  loosening  of  implants \nand  flexion  instability.”  Edwards  also  suggested  that  Claimant  wear  a  hinged  knee \nbrace.    The  doctor  placed  Claimant  at  light  duty,  pointing  out  that  he  could  ambulate \nwith  aid  of  a  cane.  The  revision  knee  replacement  occurred  on  February  3,  2022.  \nAsked  at the hearing  how  he  fared  after  this  operation,  Claimant responded:   “It  didn’t \ndo good at all.”  Unfortunately, Claimant developed a hematoma that grew to the point \nthat, per Dr. Edwards on March 4, 2022, “[h]e ha[d] significant excruciating pain.”  As a \nconsequence,  Claimant  had  to  undergo  a  fifth  surgical  procedure:    an  irrigation  and \ndebridement  of  the  right  knee.   This  occurred  on  March 7, 2022.   Edwards’s operative \nnotes  show  that  the  hematoma  was “[v]ery  large”:    comprised  of  150  ml  of  congealed \nblood.  Thereafter, in visits to Dr. Edwards, Claimant presented with steadily improving \npain.    On  May  2, 2022,  he  was  restricted  to  light,  sit-down  duty.    He  was  continued  in \nphysical therapy.  Dr. Edwards found Claimant to be at maximum medical improvement \n(“MMI”)  as  of  August  1,  2022.    In  his  report  on  that  date,  he  noted  that  Claimant \npresents with “persistent constant pain all the time . . . [and] numbness[/]tingling in the \ndistal  extremity.”  The restrictions  assigned  as  of  that  date  (which were  never  revised) \nincluded (1) seated work only/mainly, (2) no squatting/kneeling/twisting, (3) No climbing \nstairs/ladders,  (4)  no  prolonged  standing/walking,  (5)  elevation  of  right  lower  extremity \n\n12 \nwhenever possible, (5) use of crutches/cane/walker, and (6) no twisting/pushing/pulling.  \nThe doctor added:  “If no job is available with the stated modified duties, consider Dale \nBryant to be off work.”  On August 24, 2022, Edwards revised the MMI date to August 8, \n2022,  and  assigned  Claimant  an  impairment  rating  of  fifty  percent  (50%)  to  the  lower \nextremity. \n Claimant underwent a functional capacity evaluation (“FCE”) on August 8, 2022.  \nHe  gave  a  reliable  effort,  with  50/52  consistency  measures  within  expected limits,  and \ndemonstrated  the  ability  to  work  in  the  Sedentary  classification.    The  FCE  report \nincludes the following language: \nWhen  comparing  his  demonstrated  physical  abilities  with  that  of  a \nwritten job description for the position of Maintenance Assistant with \nthe   City   of   North   Little   Rock,   he   DID   NOT  meet   the   following \ndemands:  Frequently lift 40-50 lbs. and occasionally lift 140 lbs. \n \n(Emphasis in original) \n The testimony of Claimant was that before he was given permanent  restrictions, \nhe was given sit-down duty at his job site, Laman Library.  There, he was assigned the \ntask  of  tracing  shapes  onto  pieces  of  paper  and  then  cutting  them out.    He  was  not \ngiven  any  of  his  normal  custodial  duties—which  stands  to  reason,  since  they  were \nclearly  beyond  the  restrictions  assigned  by  Edwards.  Per  Claimant,  once  it  was \ndetermined that he could only work at the Sedentary level, he was terminated by Crystal \nGay,  the  manager  of  Laman  Library.  She  explained  to  him  that  there  was  no  longer \nanything  that  he  could  do  there,  in  light  of  his  restrictions.    He  never  returned  to  his \nnormal duties there. \n Claimant  agreed  to  participate  in  vocational  rehabilitation.    On  November  11, \n2022,  he  met  with  Keondra Hampton,  MS,  CRC,  who  is  a  vocational  rehabilitation \n\n13 \nconsultant.  Her report, which details his educational, vocational, and medical histories, \nreads in pertinent part: \nEmployment History \n \n. . . \n \nAccording  to  the  DOT  [United  States  Department  of  Labor,  Dictionary  of \nOccupational Titles], Mr. Bryant’s work history is classified as unskilled to \nsemi-skilled  and  he  has  no  transferrable  skills.    Mr.  Bryant  has  the \nvocational  profile  of  an  individual  with  one  year  of  high  school  education \nand  functional  limitations  with  the  inability  to  perform  posture  tasks \naccording to the FCE.  The ability to perform work within similar fields with \nspecific  vocational  preparation  (SVP)  of  unskilled  to  semiskilled  is  not \nprobable. \n \nStatements Regarding Returning to Work and/or Retraining \nMr. Bryant stated he has a desire to work, however, he is unable to return \nto  any  job  that  will  require  him  to  perform  outside  of  his  functional \nlimitations.  He said, “I would not want to get a job, just to turn around and \nget  fired  due  to  my  right  knee.”  Mr.  Bryant  reported  he  is  open  to \nreceiving any vocational rehabilitation services if he is capable of finding a \njob within his functional limitations. \n \nAnalysis, Goals, and Recommendations \nBased  on  the  FCE,  Mr.  Bryant  is  capable  of  performing  work  in  the \nsedentary category.  Due to his limited education and work history profile \nof  unskilled  to  semi-skilled  occupations,  Mr.  Bryant  does  not  have  any \ntransferrable  skills  that  would  transfer  to  sedentary  jobs.    I  recommend \nbasic  computer  skills  training  for  Mr.  Bryant  to  be  successful  in  a \nsedentary category of employment.  In my opinion, further assessment of \nthe Wide Range Achievement (Wrat4) and/or [an] intelligence assessment \nis  recommended  to  determine  Mr.  Bryant’s  training  ability.    Considering \nMr. Bryant has a ninth-grade education, adult education services are also \nrecommended with the possibility of obtaining his GED. \n \nIt is my opinion Mr. Bryant would not be able to successfully return to the \nworkforce based on the records reviewed  without the recommendation of \ntraining and assessments. \n \n On  November  28,  2022,  Claimant  began  undergoing  pain  management  at  Pain \nTreatment Centers of America.   On that day, he rated his pain as  ranging from 2/10 to \n10/10,   and   averaging   6/10.      Dr.   Noemi   Ramsay   prescribed   Hydrocodone   and \n\n14 \nrecommended a genicular nerve block.  Respondents, however, would not approve this.  \nAlthough Claimant, per the report, “denied use of any illicit drug,” the report contains the \nfollowing notation:  “Advised he will need to get a medical marijuana card if he continues \nto  use  marijuana.”  When  Claimant  returned  to  the  clinic  on  January  4,  2023,  he \ninformed  Jordan  Hardin,  P.A.,  that  while  his  pain  had  not  changed  significantly  since \ntheir  previous  encounter,  it  was  now  a  constant  10/10.    In  his  testimony,  Claimant \nrelated that he tries not to take Hydrocodone unless he has to.  He related that he used \nhis primary care physician to get his pain management referral. \n Asked at the hearing about the present condition of his knee, he responded: \nI  wear  a  sleeve  that’s  supposed  to  stop  the  swelling.    I  don’t  get  around \ntoo good, I’m hurting all the time.  I ice it, use heat, elevate it.  That’s all I \ncan  do  and  try  to  do  what  Marshall  at  physical  therapy,  he  showed  me \nsome exercises, and I do my best to do those. \n \n Use of the sleeve causes the knee to swell.  Once he removed it, he applies  ice \nto  the  knee  and  takes  medication.    He  uses  a  cane  now  because  he  becomes “off \nbalance”  at  times.    Claimant’s  knee  condition  has “gone  out”  and  caused  him to fall  at \ntimes.  He can only stand for 10 to 15 minutes at a time, and can only walk for a limited \ndistance.    According  to  Claimant,  he  avoids  driving  if  possible  because  his  right  knee \nproblems make it difficult to operate the accelerator and brake. \n In describing his daily activities, he related: \n \nMostly, I just try and do something to relieve the pain on my knee.  I try to \ndo exercises.  I welcome company if I ever get it, even if it’s the mailman.  \nBut I lost all that social life, so I don’t do anything. \n \nAsked  if  the  work-related  accident  in  question  changed  his  life,  Claimant  became \nemotional, stating:  “No fishing, no social life, no bowling, no intimacy with my wife, none \nof that.  Everything  changed.”  Claimant has been approved to receive Social Security \n\n15 \nDisability  benefits.    He  does  not  believe  that  he  could  return  to  his  former  job  in  the \nconstruction   industry.      While   he   admitted   that   he   has   had   pre-existing   health \nproblems—including  hypertension  and  the  need  for  a  CPAP  machine  at  night—these \ndid not  prevent  him  from  performing his  custodial  duties.    Claimant  does  not  think  that \nhe could go back to any line of work that he was in previously.  Under questioning from \nRespondents,  he  agreed  that  previously,  while  receiving  Social  Security  disability \nbenefits, he was able to return to the working world—in his capacity as a security guard.  \nThe following exchange took place: \nQ. So have you tried to work with Social Security to get you back into \nthe workforce now? \n \nA. Ma’am, they let me go at the library because it was nothing I could \ndo.  Who’s gonna hire me now? \n \n. . . \n \nQ. So  is  it  fair  to  say  that  mobility  is  a  concern  for  you  with  getting  a \njob, like being able to move around, is that a concern for you about \ngetting a job? \n \nA. Moving around, bending, lifting, standing, walking, doing the things \nthat I used to do on a job.  If I lied to them,  how long would I last, \nwhat, a day? \n \nClaimant  also  acknowledged  that  he  applied  for  unemployment  benefits.   But  he  was \nturned down. \n Later during his cross-examination, the following exchange occurred: \nQ. You testified earlier that you don’t feel like you could do any work at \nthe library, is that a fair statement? \n \nA. Yes. \n \nQ. Do you think you could check out books at the library? \n \n\n16 \nA. Ma’am,  I  don’t  know  how  to  check  out  any  books.    In  fact,  how \ncould  I  help  somebody  check  out  a  book  when  I  could  barely  get \naround  myself?    And  then  on  that,  if  you  check  out a  book,  you’re \ngonna have to go up there, from what I was seeing, it’s keyed [into] \nthose  computers,  and  I  don’t  know  anything  about  that.    They \nprobably wouldn’t get the book. \n \nHe  returned  to  this  subject  later,  summarizing:   “I  don’t  have  any  computer  skills.    My \neducation is not that good.”  Claimant did not think he could hold down a job answering \na  phone  because,  inter  alia,  his  spelling  is  poor.  In  a  related  vein,  the  following \nexchange took place on redirect examination: \nQ. Did  you  work  every  day  with  the  people  at  the  Laman  Library \ntogether with them?  Did you see them every day at work? \n \nA. Yes. \n \nQ. They were fairly able to assess your abilities, correct? \n \nA. Yes. \n \nQ. Did they ever offer you the opportunity to check out books? \n \nA. No. \n \nQ. Were you allowed to play around on computers at Laman Library? \n \nA. No.  I tried to get them to show me how to use the computer.  It was \none  guy  up  there,  and  he  said  he  would  try,  but  nothing  ever \nhappened. \n \nRespondents have never offered Claimant computer skills training, despite the fact that \nHampton  recommended  that  very  thing  in  her  vocational  evaluation.  Moreover,  they \nhave not offered additional training or testing of any type. \n With  respect  to  his  motivation  to  return  to  the  workforce,  Claimant  gave  the \nfollowing testimony: \nHow could I look for a job when I’m taking medications and I have the ice, \nheat?    I  would  love  to  work  because  working,  it  wasn’t  something  that  I \n\n17 \nreally enjoyed my job, it was something that was needed to pay my bills, \nto support my family, I mean, you know.  That’s why I never missed a day \nand  I  never  was  late.    And  whatever  they  asked  me  to  do,  whether  I \nthought  it  was  my  duty  or  not,  I  did  it.    I  performed  it  to  the  best  of  my \nability I did it.  I didn’t care what it was.  If it was picking up poop, I did it. \n \n When questioned by the Commission, Claimant stated that he would be open to \nreceiving vocational rehabilitation retraining, but “[t]oday I just can’t see it.  I mean, I’m \njust  not  able  to—I  know  I  would  love  to,  but  I’m  just  not  able  to  hold  down  a  job  right \nnow.”  In  his  testimony,  he  again  became  emotional  when  he  stated, “I  don’t  think  I’m \nretrainable,” and related that  in the course of his unsuccessful attempt to get his GED, \nhe  discovered  that  the  amount  of  education  he  actually had  was  markedly  less  than \nwhat one would expect, based on the number of grades he had completed. \n Discussion.    Claimant  is  a  credible  witness.    This  is  the  same  finding  I  made  in \nhis  previous  hearing.    His  testimony,  and  the  balance  of  the  credible  evidence  in  this \nmatter, reflect that he is 64 years old and  completed the ninth grade.   His work history \nhas consisted of stints as a construction worker, dishwasher, security guard, and janitor.  \nOn April 3, 2019, he suffered a compensable right knee injury.  As a result, he  has had \nto undergo five separate surgical procedures on that knee—including both a total knee \nreplacement and a revision total knee replacement.   Ultimately, on August 1, 2022, he \nreached the end of his healing period.  Thereafter, he began pain management—which \nhe still receives. \n He  was  assigned  an  impairment  rating  of  fifty  percent (50%)  to  the  lower \nextremity.        His    restrictions    include:        (1)    seated    work    only/mainly,    (2)    no \nsquatting/kneeling/twisting,    (3)    No    climbing    stairs/ladders,    (4)    no    prolonged \nstanding/walking,  (5)  elevation  of  right  lower  extremity  whenever  possible,  (5)  use of \n\n18 \ncrutches/cane/walker,  and  (6)  no  twisting/pushing/pulling.    These  comport  with  the \nfindings  of  his  FCE,  which  reflect  that  he  gave  a  reliable  effort  and  demonstrated  the \nability  to  work  only  in  the  Sedentary  classification.    Up  until  then,  the  light-duty  work \nClaimant had been given at his place of employment consisted of cutting out figures that \nhad been traced onto paper.  When the above findings made it clear that he could not \nreturn  to  his  custodial  work  at  the  library,  he  was  terminated.    Claimant  underwent  a \nvocational  rehabilitation  evaluation.    I  credit  the  opinion  given  by  Hampton,  the \nevaluator,  that  he “does  not  have  any  transferrable  skills  that  would  transfer  to \nsedentary jobs.”  While she recommended further assessments to determine his training \nability,  and  basic  computer  skills  training,  these  have  not   been  offered  to  him.  \nRegardless,  it  was  Claimant’s  sad,  frank  belief  that  his  poor  educational  history  would \nlikely not make any re-training efforts successful. \n While Claimant is motivated to return to the workforce—as his credible testimony \nand  vocational  history  reflects—the  possibility  of  such  a  return  does  not  look  at  all \npromising,  in  light  of  the  above  evidence.  To  the  contrary,  evidence  shows  that  he  is \nclearly unable to  go back to the working world.  In sum, I find that he has proven by a \npreponderance of the evidence that he is permanently and totally disabled.  In so doing, \nI  find  that  Claimant’s  compensable April  3,  2019,  compensable  right  knee  injury is  the \nmajor cause of his disability. \nC. Attorney’s Fee \n One of the purposes of the attorney's fee statute is to put the economic burden of \nlitigation  on  the  party  who  makes  litigation  necessary.  Brass  v.  Weller,  23  Ark.  App. \n193,  745  S.W.2d  647  (1998).    Since  Claimant  has  proven  herein  his  entitlement  to \n\n19 \npermanent   and   total   disability   benefits,   and   because   Respondents   No.   1   have \ncontroverted this, he has shown that his attorney should be awarded a controverted fee \nat  their  expense  under  Ark.  Code  Ann.  §  11-9-715  (Repl.  2012)  on  those  indemnity \nbenefits awarded herein. \nCONCLUSION AND AWARD \n Respondents  No.  1  are  directed  to  pay/furnish  benefits  in  accordance  with  the \nfindings of fact set forth above.  All accrued sums shall be paid in a lump  sum without \ndiscount, and this award shall earn interest at the legal rate until paid, pursuant to Ark. \nCode Ann. § 11-9-809 (Repl. 2002).  See Couch v. First State Bank of Newport, 49 Ark. \nApp. 102, 898 S.W.2d 57 (1995). \n Claimant’s  attorney  is  entitled  to  a  25  percent  (25%)  attorney’s  fee  awarded \nherein,  one-half  of  which  is  to  be  paid  by  Claimant  and  one-half  to  be  paid  by \nRespondents  No.  1  in  accordance  with  Ark. Code  Ann.  §  11-9-715  (Repl.  2012).   See \nDeath & Permanent Total Disability Trust Fund v. Brewer, 76 Ark. App. 348, 65 S.W.3d \n463 (2012). \n IT IS SO ORDERED. \n       ________________________________ \n       Hon. O. Milton Fine II \n       Chief Administrative Law Judge","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. G903306 DALE BRYANT, EMPLOYEE CLAIMANT CITY OF NORTH LITTLE ROCK, SELF-INSURED EMPLOYER RESPONDENT NO. 1 ARK. MUN. LEAGUE, THIRD-PARTY ADMR. RESPONDENT NO. 1 DEATH & PERMANENT TOTAL DISABILITY TRUST FUND RESPONDENT NO. 2 OPINION FILED JULY 11, 2023 Hearing be...","fetched_at":"2026-05-19T23:05:06.253Z","links":{"html":"/opinions/alj-G903306-2023-07-11","pdf":"https://labor.arkansas.gov/wp-content/uploads//Bryant_Dale_G903306_20230711.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}