{"id":"alj-H109799-2024-05-16","awcc_number":"H109799","decision_date":"2024-05-16","opinion_type":"alj","claimant_name":"Gina Sallee","employer_name":"Universal Health Services Inc","title":"SALLEE VS. UNIVERSAL HEALTH SERVICES INC. AWCC# H109799 MAY 16, 2024","outcome":"granted","outcome_keywords":["granted:4"],"injury_keywords":["neck","knee","shoulder","cervical","wrist","strain","rotator cuff"],"pdf_url":"https://www.labor.arkansas.gov/wp-content/uploads/SALLEE_GINA_H109799_20240516.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"SALLEE_GINA_H109799_20240516.pdf","text_length":20573,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO. H109799 \nGINA SALLEE, EMPLOYEE CLAIMANT \n \nUNIVERSAL HEALTH SERVICES INC., EMPLOYER RESPONDENT \n \nSEDGWICK CLAIMS MANAGEMENT SERVICES INC., CARRIER RESPONDENT \n \n OPINION FILED MAY 16, 2024 \n \nHearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Fort Smith, Sebastian \nCounty, Arkansas. \n \nClaimant represented by EVELYN E. BROOKS, Attorney, Fayetteville, Arkansas. \n \nRespondents represented by LAUREN A. SPENCER, Attorney, Little Rock, Arkansas. \n \n \n STATEMENT OF THE CASE \n  \n On April 10, 2024, the above captioned claim came on for a hearing at Fort Smith, Arkansas.  \nA pre-hearing conference was conducted on February 8, 2024, and a pre-hearing order was filed on \nFebruary 15, 2024.  A copy of the pre-hearing order has been marked as Commission’s Exhibit #1 \nand made a part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1.   The Arkansas Workers’ Compensation Commission has jurisdiction of this claim.  \n            2.   The prior opinion of the Full Commission is res judicata. \n            3.   The employee/employer/carrier relationship existed on December 7, 2021.  \nAt the pre-hearing conference the parties agreed to litigate the following issues: \n1.  Whether claimant is entitled to additional treatment for her neck injury. \n2.  Whether claimant is entitled to additional treatment on her left knee. \n\nSallee-H109799 \n2 \n \n3.  Whether claimant is entitled to treatment specifically for a left shoulder injury.\n1\n \nAll other issues are reserved by the parties. \nThe  claimant  contends  that “She is entitled to medical treatment as recommended by Drs. \nDougherty and Blankenship. The claimant reserves all other issues.” \nThe respondents contend that “Claimant is not entitled to additional treatment for her neck \nand left knee and contend the injury to the left shoulder is not compensable and claimant is not entitled \nto treatment. The respondent reserves all other issues.”               \n From a review of the entire record including medical reports, documents, and other matters \nproperly  before  the  Commission,  and  having  had  an  opportunity  to  hear  the  testimony  of  the \nwitnesses and to observe their demeanor, the following findings of fact and conclusions of law are \nmade in accordance with A.C.A. §11-9-704: \n  FINDINGS OF FACT & CONCLUSIONS OF LAW \n \n 1.      The  stipulations  agreed  to  by  the  parties  at  a  pre-hearing  conference  conducted  on \nFebruary 8, 2024 and contained in a pre-hearing order filed February 15, 2024 are hereby accepted as \nfact. \n 2.     Claimant has proven by a preponderance of the evidence that she is entitled to additional \nmedical treatment for her compensable neck and left knee injury.  \n 3.          Claimant  has  proven  by  a  preponderance  of  the  evidence  that her  left  shoulder  is  a \ncompensable injury, and as such, she is entitled to medical benefits for that injury which occurred on \nDecember 7, 2021. \n \n \n1\n While not expressed in clear terms in the prehearing order, the compensability of the left shoulder issue was litigated; \nrespondents contended that it was not compensable, and claimant sought benefits that could only be awarded if it was \ndetermined she suffered a compensable injury.   \n\nSallee-H109799 \n3 \n \n \n FACTUAL BACKGROUND \n This matter was previously tried before me on September 14, 2022. An opinion was issued on \nNovember 3, 2022, in which I found that claimant failed to prove that she suffered a compensable \ninjury on December 7, 2021, as she did not provide convincing evidence that she was acting in the \ncourse of her employment at the time of the accident. By so finding, I did not have to determine if \nclaimant’s injuries at issue at that hearing--to her neck and left knee--were compensable.   \n On June 9, 2023, the Full Commission reversed that decision, finding claimant did prove by \nthe preponderance of the evidence that she was acting within the course of her employment duties \nwith  the  respondent on  December  7,  2021, when  she  had  an  automobile  accident.  The  Full \nCommission then found that claimant proved she suffered compensable injuries to her neck and left \nknee.  All other issues were reserved.   \n That decision was not appealed to the Arkansas Court of Appeals and therefore is res judicata \non the issue of whether claimant suffered a compensable injury on December 7, 2021.  The parties \nagreed  that  the  transcript  from  the  previous  hearing,  including  the  medical  records, should be \nconsidered as an exhibit to this hearing, and I am treating it as such.  \n At  the  conclusion  of  the  hearing,  I  requested  the  parties  submit  briefs  in  support  of  their \nposition  on  the  issues  that were  being  litigated  in  this  hearing.  Those  briefs were  very  much \nappreciated and are blue backed to the record of this case. \nHEARING TESTIMONY \n \n Claimant was the only witness at the hearing.  Before she began testifying regarding the issues \nfor this hearing, I advised the parties that I remembered the testimony from the previous hearing and \nthat I had no question that claimant was in a severe automobile accident when she collided with a deer \non interstate 40 and as such, she did not need to go into great detail as to the severity of the accident.   \n\nSallee-H109799 \n4 \n \n \n Claimant said she was having pain in her neck, left knee and right shoulder immediately after \nthe accident and went to the emergency room the following day.  After seeing other physicians, she \nwas  eventually  treated  by  Dr.  James  Blankenship  for  her  neck  and  shoulder  and  Dr.  Christopher \nDougherty for her knee and shoulder.  Claimant testified that on March 14, 2024, she had surgery on \nher left shoulder which was performed by Dr. Dougherty.  She is currently receiving physical therapy; \nhowever, she completed a course of physical therapy and is now currently doing home exercises.  Dr. \nDougherty also has recommended surgery on claimant’s left knee but because respondent denied that \nportion of the claim, the surgery has been delayed.  \n Claimant  stated  that  she  was  still treating  with Dr.  Blankenship  for  her  neck.    Epidural \ninjections did not help her, and Dr. Blankenship believes that her alternative is either pain management \nor surgery.  While claimant does not want to have surgery on her cervical spine, she believes that it is \na necessity because she is not getting better.  She has headaches on a daily basis, and pain from her \nneck down from the base of her scull to her shoulders and into her left arm.  She did not complain of \nnumbness in her hands at this time.   \n On cross-examination, claimant repeatedly claimed that she could not remember after having \nimmediate  recall  of  the  question  she  was  asked  on  direct  examination.    However,  many  of  the \nquestions dealt with accidents that claimant had prior to December 7, 2021, and none of the injuries \nfrom those accidents were preventing claimant from working at the time of her compensable injury.   \nDEPOSITION OF DR. JAMES BLANKENSHIP  \n Dr. James Blankenship was deposed on March 25, 2024.  He is a board-certified neurosurgeon \nwho first saw claimant in September 2022.  She presented to his clinic with neck pain, suboccipital \npain, bilateral shoulder, and subscapular pain, as well as lower left extremity pain down to her hand, \nbilateral  numbness  in  both  upper  extremities  and  had  decreased  strength.    Dr.  Blankenship  said \n\nSallee-H109799 \n5 \n \n \nclaimant related this to a motor vehicle accident that happened in December 2021 and his information \nregarding her symptoms came from the claimant.  Dr. Blankenship found objective findings such as \nweakness in the triceps muscles in both arms as well as her hands.  Based on the radiographs, he found \nthat claimant had an anterolisthesis, meaning that she did not have good alinement at C4-C5 and C5-\n6 levels of her cervical spine.  The bilateral hand weakness was attributed to pressure on the spinal \ncord as well.  He clarified that he was unaware that claimant had an automobile accident on April 4, \n2023, and any entry he made on a form that related to that accident was probably due to him talking \ntoo fast and thinking about someone else.  It was his opinion that the accident of December 2021 was \nthe one that caused the malalignment of claimant’s cervical spine and the disc protrusion that he saw.  \n Dr. Blankenship testified that his opinion that was expressed in his December 7, 2023, letter \nto Dr. David Cannon; “I have told her there was not any surgical intervention that is going to help” \nwas  no  longer  his  opinion.    As  claimant  has  failed  multiple  attempts  at  conservative  treatment,  he \nbelieves surgical  intervention  is  now  appropriate  and  recommended a  cervical  fusion  with  titanium \nimplants at C4-5, C5-6, and C6-7.   \n On  cross-examination,  Dr.  Blankenship  said other  than  the  disc  protrusion,  he  had  no \nexplanation why claimant was having paresthesia and the weakness in her upper extremities, but he \ndid believe that surgery would help resolve the pain complaint that she was having.  He agreed that \nthe headaches could be related to the neck issues.   \n On redirect-examination, Dr. Blankenship was asked if a newer and clearer MRI would help \nhim see any changes that happened after the April 2023 accident.  While he was unsatisfied with the \nprevious  MRIs  that  he  had  seen, he  did  not  believe  that  that  was  going  to  change  his offering  of \nsurgery because he was able to see a misalignment in the cervical spine. \n \n\nSallee-H109799 \n6 \n \n \nREVIEW OF THE EXHIBITS \n \n Claimant submitted 150 pages of medical records. However, a detailed review of the records \nfor the neck and left knee injuries is not necessary.  For the former, Dr. Blankenship’s deposition \nexplained what he had done in treating claimant and that his last entry was not his current opinion; \nfor  the  latter,  Dr.  Chris  Dougherty answered  an  inquiry  from respondent, Sedgwick, regarding a \nmedical records review conducted by Dr. Owen Kelly (Cl. X 132), and in his response, clearly outlined \nhis opinion as to claimant’s condition and outlined his recommended course of treatment (Cl. X. 145). \nA further examination of the records relevant to the left knee and left shoulder claims will be addressed \nin the appropriate section of the adjudication. \n Respondent submitted as non-medical exhibits claimant’s deposition which was taken before \nthe September 14, 2022, hearing as well as some other documents which were a part of that record, \nand my opinion of November 3, 2022 (the relevance of which is not apparent, as it was reversed by \nthe Full Commission).  \nADJUDICATION \n \n Compensable  injuries  must  be  established  by  medical  evidence  supported  by  objective \nfindings, Ark. Code Ann. § 11-9-102(4)(D), and objective findings are those that cannot come under \nthe voluntary control of the patient. Ark. Code Ann. § 11-9-102(16)(A)(i). Complaints of pain are not \nobjective medical findings. Ark. Sec'y of State v. Young, 2018 Ark. App. 508, at 8, 559 S.W.3d 331, 336. \nHowever, once it has been established that a claimant has sustained a compensable injury, she is not \nrequired to offer objective medical evidence to prove entitlement to additional benefits, Ark. Health \nCtr. v. Burnett, 2018 Ark. App. 427, at 9, 558 S.W.3d 408, 414. The Full Commission found claimant \npresented objective  evidence  to  support  her claim for  neck  and  left  knee  injuries, which makes it \nunnecessary for her to provide new objective findings for the treatment she seeks for those injuries.     \n\nSallee-H109799 \n7 \n \n \nA. The neck injury \n  As summarized above, Dr. Blankenship believes claimant has failed at conservative treatment, \nand Claimant  seeks  additional  medical  treatment  for  her cervical  spine  as recommended  by  Dr. \nBlankenship. Respondents  had Dr.  Blankenship’s records  reviewed  by  Dr.  Owen  Kelly,  an \northopedist, who offered the opinion that “The isolated accident of 12/7/21 is not responsible for \nthe findings of her cervical spine nor is it responsible for her treatment.”  Dr.  Kelly  attributed \nclaimant’s condition to degenerative disease of the cervical spine.   \n In reviewing Dr. Kelly's report, I give more credibility to the doctor that has examined a patient \nthan I do to one that merely reviewed records. Dr. Kelly’s statement regarding any degenerative disc \ndisease he  saw is  irrelevant;  \"a  pre-existing  disease  or  infirmity  does  not  disqualify  a  claim  if  the \nemployment  aggravated,  accelerated,  or  combined  with  the  disease  or  infirmity  to  produce  the \ndisability  for  which  compensation  is  sought.\" Fulton  Cty.  Hosp.  v.  Herring,  2020  Ark.  App.  221,  597 \nS.W.3d 162. A person with degenerative disc disease without symptoms or limitations is not barred \nfrom benefits; the Full Commission’s decision in this case was that claimant was working at her job \nwhen she was injured, and there is no medical evidence she was restricted in any way before that day. \nAs  such,  I  find she  has  proven  by  a  preponderance  of  the  evidence  that  the  medical  treatment  as \nrecommended by Dr. Blankenship is reasonable and necessary. \nB. The left knee injury. \nDr. Dougherty had been treating claimant for some time before he recommended surgery \nfor her compensable knee injury.  Dr. Kelly reviewed the records from Dr. Dougherty and opined \nthat the MRIs that he examined showed:  \n“... finding significant with  cartilage  loss on  the  medial  compartment, \ndegenerative changes, and an  intact ACL.  Also,  two  independent  radiology \nreadings document an intact anterior cruciate ligament. The treating physician \nnotes she would need to undergo ACL construction. There's no evidence of \n\nSallee-H109799 \n8 \n \n \nACL  compromise  or  loss  of  integrity.  The  findings  noted  in  her  knee  are \ntypical of an age-related wear pattern including a degenerative meniscal tear, \nmost specifically on the medial side involving the anterior cartilage.... Ms. Sallee \nsustained  no  identifiable  injury  to  the  left  knee  joint  or  cervical  spine  at  the \ntime  of  the  incident....  The  findings  noted  on  the  previous  imaging  are \nconsistent with non-traumatic findings.”   \n \nDr.  Daugherty responded to Dr. Kelly’s medical records review in a letter  of  February  20, \n2024, wherein he stated:  \n1.   I  have  read  the  opinion  of Dr. Kelly  and  agree with  the  observations  he \nformulated  from  her  imaging  studies. Her clinical  exam  does  not,  however, \ncorrelate  with  her  imaging  studies.  She  has  a  clear Lachman’s and  anterior \ndrawer  on  exam  indicating  an  incompetent  ACL. Her  clinical  exam  is \nconsistent  with  a  Sherman Type-1 ACL  tear  which  is  an  avulsion  of  the \nfemoral side of the ACL without restriction. \n2.  The car accident has relation to the current injury, and it caused the injury \nin question, and this did aggravate the condition of the meniscus tear. \n3.  Without ACL repair, the patient will progress with arthritis and the plan of \nAC repair is not documented to increase the development of arthritis. \n4.  Reasonable treatment is ACL repair with post op PT and pre-op labs for \nsurgery. \n \n Dr. Kelly’s medical record review was of little use on this point; he could not possibly give a \nwell-informed  opinion  on  a  knee  injury  without  conducting  the same physical  examination as her \ntreating physician.  As the existence of a compensable knee injury has already been established as a \nmatter of law, claimant has met her burden of proof that the recommended surgery to her left knee is \nreasonable and necessary.  \nC. The left shoulder injury:    \n The claim for a left shoulder injury was not litigated in the previous hearing, and therefore, it \nmust be established as (1) an injury arising out of and in the course of employment; (2) the injury \ncaused internal or external harm to the body which required medical services or resulted in disability \nor  death;  (3)  medical  evidence  supported  by  objective  findings  establishing  an  injury;  and  (4)  the \ninjury  was  caused  by  a  specific  incident  identifiable  by  time  and  place  of  occurrence. Odd  Jobs  and \n\nSallee-H109799 \n9 \n \n \nMore v. Reid, 2011 Ark. App. 450, 384 S.W. 3d 630.   \n I noted on December 8, 2021, the day after the accident, claimant reported to the Emergency \nDepartment at Mercy Hospital in Fort Smith that she was having pain in her neck, left knee and left \nwrist.  During the course of that visit, she both denied any pain in her left shoulder (“Left shoulder: \nNormal. No swelling or tenderness. Normal range of motion. Normal strength. Normal pulse,”) (Cl. \nX. 21), and complained of it: (“She is tender to the left cervical paraspinal muscles in the left upper \ntrapezius into the left shoulder.”) (Cl. X. 17) Two weeks later, the records from Dr. Thomas Cheyne \nstate that claimant was complaining of left shoulder pain.  He did not do any objective testing during \nthat December 22, 2021, visit, but simply noted that claimant had a “left shoulder contusion.”  (Cl. \nX.  39).    On January 6, 2022, Dr. Cheyne recorded that claimant had a “strain of muscle(s)  and \ntendon(s) in the rotator cuff of left shoulder.”  Claimant  received physical  therapy  on  her  left \nshoulder,  and  when  conservative  care  did  not  provide  her  with  relief, Dr.  Dougherty  performed \nsurgery on that shoulder on March 14, 2024.  (Cl. X. 150).  In his pre-operative note, he stated without \nequivocation “Her injury occurred during a car wreck in December 2021.”   \n I  noted  in  my  opinion  from  the  first  hearing “it is obvious that claimant will engage in \ndeceptive  behavior when she believes it helps her.”  Nothing about her testimony in the second \nhearing changed my mind on that point; she was often evasive in cross-examination and professed \nto have memory problems (although she had no such issues during direct testimony).   However, my \nbelief that claimant will be less than truthful when she thinks it is to her benefit isn’t determinative \nhere; telling the doctors that her left shoulder was injured in the automobile accident and then having \nto undergo  a  surgery  on  that shoulder isn’t particularly beneficial.    With  no  testimony  or  medical \nrecords to the contrary, and with Dr. Dougherty’s conclusion that the accident caused the injury to \nher left shoulder, I find claimant has met her burden of proof that her left shoulder was injured in \n\nSallee-H109799 \n10 \n \n \nthe automobile accident of December 7, 2021. The Full Commission found this accident occurred \nduring the course of claimant’s employment.  As there are objective medical findings that she suffered \ninternal  bodily  harm on  this  portion  of  her  claim,  I  find the  treatment  recommended  by  Dr. \nDaughterty is reasonable and necessary.  \nORDER \n \n Claimant  has  proved  by  a  preponderance  of  the  evidence  that she  is  entitled  to  additional \nmedical treatment for her compensable neck injury as directed by Dr. Blankenship. \n Claimant  has  proved  by  a  preponderance  of  the  evidence  that  she  is  entitled  to  additional \nmedical treatment for her compensable left knee injury as directed by Dr. Dougherty. \n Claimant has proved by a preponderance of the evidence that she sustained a compensable \ninjury to her left shoulder on December 7, 2021, and is entitled to medical treatment for that injury as \ndirected by Dr. Dougherty.  \n Pursuant to A.C.A § 11-9-715(a)(1)(B)(ii), attorneys fees are awarded \"only on the amount of \ncompensation for indemnity benefits controverted and awarded.\" In this case, there was no claim that \nindemnity benefits have been controverted up to the date of the hearing, and as all issues other than \nmedical benefits were reserved, no attorney's fee can be awarded in this matter at this time. Claimant's \nattorney is free to voluntarily contract with medical providers pursuant to A.C.A. § 11-9-715(a)(4). \n Respondent  is  responsible  for  paying  the  court  reporter  her  charges  for  preparation  of  the \ntranscript in the amount of $541.95. \n IT IS SO ORDERED. \n                                                                                              \n_______     \n JOSEPH C. SELF \nADMINISTRATIVE LAW JUDGE","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H109799 GINA SALLEE, EMPLOYEE CLAIMANT UNIVERSAL HEALTH SERVICES INC., EMPLOYER RESPONDENT SEDGWICK CLAIMS MANAGEMENT SERVICES INC., CARRIER RESPONDENT OPINION FILED MAY 16, 2024 Hearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Fort Smith, Sebastia...","fetched_at":"2026-05-19T22:54:26.683Z","links":{"html":"/opinions/alj-H109799-2024-05-16","pdf":"https://www.labor.arkansas.gov/wp-content/uploads/SALLEE_GINA_H109799_20240516.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}