{"id":"alj-H208370-2023-10-02","awcc_number":"H208370","decision_date":"2023-10-02","opinion_type":"alj","claimant_name":"Jason House","employer_name":"Penske Logistics, Inc","title":"HOUSE VS. PENSKE LOGISTICS, INC. AWCC# H208370 OCTOBER 2, 2023","outcome":"denied","outcome_keywords":["dismissed:1","denied:3"],"injury_keywords":["knee","hip","back","fracture"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/HOUSE_JASON_H208370_20231002.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"HOUSE_JASON_H208370_20231002.pdf","text_length":17695,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO.  H208370 \n \nJASON HOUSE, Employee                                                                              CLAIMANT \n \nPENSKE LOGISTICS, INC., Employer                                                      RESPONDENT                       \n \nOLD REPUBLIC INSURANCE CO., Carrier/TPA                                      RESPONDENT                       \n \n \n \n OPINION FILED OCTOBER 2, 2023 \n \nHearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Fort Smith, \nSebastian County, Arkansas. \n \nClaimant represented by MICHAEL L. ELLIG, Attorney, Fort Smith, Arkansas. \n \nRespondents represented by JARROD S. PARRISH, Attorney, Little Rock, Arkansas. \n \n \n STATEMENT OF THE CASE \n  \n On August 28, 2023, the above captioned claim came on for hearing at Fort Smith, \nArkansas.  A pre-hearing conference was conducted on June 28, 2023 and a pre-hearing \norder was filed on that same date.  A copy of the pre-hearing order has been marked as \nCommission’s Exhibit #1 and 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 the \nwithin claim. \n 2.     Claimant sustained a compensable injury to his right knee on June 15, 2022. \n 3.      The claimant was earning an average weekly wage of $1,100.00 which would \nentitle him to compensation at the weekly rates of $733.00 for total disability benefits and \n\nHouse – H208370 \n \n2 \n \n$558.00.00 for permanent partial disability benefits. \n 4.    Claimant has been assigned an impairment rating of 37% to his right lower \nextremity. \n At the pre-hearing conference the parties agreed to litigate the following issues: \n1.     Claimant’s entitlement to permanent disability benefits in an amount equal to  \n37% to the lower extremity. \n2.      Attorney fee. \nThe claimant contends he is entitled to permanent partial disability benefits for his \ncompensable injury and that his attorney is entitled to the statutory fees.   \nThe  respondents  contend  that  all  appropriate  benefits  have  been  paid.   The \nclaimant suffered a twisting injury to his right knee resulting in a meniscal tear.  Prior to \nhis  injury,  he  had  surgery  on  his  right  knee  and  had  a  prior  diagnosis  of  osteoarthritis \nwhich  was  deemed  to be bone on bone.  Dr. Creech’s report of 8/30/22 indicated the \nclaimant has had chronic right knee pain for years.  Medical reports, including the surgical \nreport,  support  the  diagnosis  of  osteoarthritis  being  the  sole  need  for  the  total  knee \nreplacement.  In light of this, it is respondents’ position that the claimant’s work related \nmeniscal injury is not the major cause of the need for the total knee replacement or the \npermanent impairment that has been assigned.  Thus, it is respondents’ position that they \nare not liable for that impairment rating. \nFrom a review of the record as a whole, to include medical reports, documents, \nand other matters properly before the Commission, and having had an opportunity to hear \nthe testimony of the witness and to observe his demeanor, the following findings of fact \nand conclusions of law are made in accordance with A.C.A. §11-9-704: \n\nHouse – H208370 \n \n3 \n \n \n  FINDINGS OF FACT & CONCLUSIONS OF LAW \n \n 1.        The  stipulations  agreed  to  by  the  parties  at  a  pre-hearing  conference \nconducted on June 28, 2023 and contained in a pre-hearing order filed  that same date \nare hereby accepted as fact. \n 2.        Claimant has failed to meet his burden of proving by a preponderance of \nthew  evidence  that  he  is  entitled  to  permanent  partial  disability  benefits  in an  amount \nequal to 37% to the lower extremity for his compensable injury. \n \n FACTUAL BACKGROUND \n Claimant is a 51-year-old high school graduate who has primarily been employed \nas a truck driver for the last twenty-five years.  He was involved in a motor vehicle accident \nin 1997 in which he injured his right hip and fractured his right femur and kneecap.  This \nresulted in surgery on both his right hip and his right knee.   \n On June 15, 2022, claimant was working for respondent driving a truck hauling live \nturkeys from a farm to a processing plant.  As he was pre-tripping his trailer by dollying \nup the landing gear, he stepped in a hole, causing his right knee to twist and pop.   \n After  some  initial  treatment  at  MedExpress,  claimant  was  referred  to  Dr.  Trent \nJohnson,  orthopedic  surgeon,  for  treatment  on  July  15,  2022.    Dr.  Johnson  noted  that \nclaimant  had  a  history  of  post-traumatic  arthritis  of  the  right  knee  and  diagnosed  his \ncurrent  condition  as  an  exacerbation  of  the  arthritis  in  the  right  knee.    Dr. Johnson \nprescribed physical therapy and gave claimant an injection. \n In his report of August 12, 2022, Dr. Johnson noted that the injection had provided \nclaimant only a few days of relief and that claimant’s knee pain had gotten to the point \n\nHouse – H208370 \n \n4 \n \nthat it was no longer tolerable.  Dr. Johnson referred claimant to Dr. Kramer for a total \nknee  arthroplasty  evaluation.    Instead  of  seeing  Dr.  Kramer,  claimant  was  sent  by \nrespondent for an evaluation with Dr. Jonathan Creech, orthopedic surgeon.   \n In a report dated August 30, 2022, Dr. Creech noted that claimant had a twisting \ninjury at work that exacerbated his chronic right knee pain.  Dr. Creech performed a right \nrobotic  total  knee  arthroplasty  on  November  16,  2022.    Medical  records  following  the \nsurgery indicate that claimant had a good result from the procedure. \n Dr. Creech sent claimant for a functional capacities evaluation and an impairment \nrating  evaluation  which  were  performed  on  April  19,  2023.    The  functional  capacity \nevaluation determined that claimant gave a reliable effort with all consistency measures \nwithin expected limits.  In addition, the impairment evaluation determined that claimant \nhad an impairment rating of 15% to the body as a whole or 37% to the lower extremity. \n Respondent  has  not  accepted  liability  for  the  impairment  rating  and  as  a result, \nclaimant has filed this claim contending that he is entitled to payment of permanent partial \ndisability benefits based on the 37% impairment rating to the lower extremity. \n \nADJUDICATION \n Claimant  contends  that  he  is  entitled  to  payment  of  permanent  partial  disability \nbenefits based on the 37% impairment rating assigned to him following his surgery.  The \nrelevant statutory law is codified at A.C.A. §11-9-102(4)(F)(ii) which states: \n \n(a)   Permanent benefits shall be awarded only upon a \ndetermination that the compensable injury was the major \ncause of the disability or impairment.  \n(b)   If any compensable injury combines with a pre- \n\nHouse – H208370 \n \n5 \n \nexisting disease or condition or the natural process of \naging to cause or prolong disability or a need for \ntreatment, permanent benefits shall be payable for \nthe resultant condition only if the compensable injury \nis the major cause of the permanent disability or need \nfor treatment. \n \n \n A.C.A. §11-9-102(14)(A) defines “major cause” as more than fifty percent (50%) of \nthe cause. \n This  statute  was  addressed  by  the  Arkansas  Supreme  Court  in Hickman  v. \nKellogg, Brown & Root, 372 Ark. 501, 277 S.W. 3d 591 (2008).  In that case, Hickman \nslipped and fell hitting his right knee against a platform on April 26, 2002.  An injury to \nHickman’s right knee was accepted as  compensable  by  Kellogg.    (There  was  also  an \ninjury to Hickman’s back at that time, but issues involving the back are not relevant to this \ndiscussion.)    An  x-ray  of  Hickman’s  right  knee  showed  severe,  multi-compartmental \nosteoarthritis with no findings of acute traumatic injury.  An MRI of Hickman’s right knee \ndated August 15, 2022 showed a small joint effusion and degenerative arthritic changes \nin the right knee.   \n Hickman  eventually  underwent  a  total  knee  replacement  surgery  on  September \n29,  2004,  and  this  surgery was accepted and paid for by Kellogg.  Hickman’s treating \nphysician assigned an impairment rating of 30% to the lower extremity for the surgery.  \nKellog  did  not  accept  liability  for  the  impairment  rating  and  a  hearing  was conducted.  \nFollowing decisions by an administrative law judge and the Full Commission, the Court \nof  Appeals  reversed  and  found  that  since  Kellog  had  stipulated  that  the  knee  was \ncompensable, it could not avoid responsibility for surgery and the impairment rating.  An \nappeal to the Arkansas Supreme Court followed. \n\nHouse – H208370 \n \n6 \n \n The Court first noted the requirements of A.C.A. §11-9-102(4)(D) and (16).  It then \nnoted that in order for Hickman to be entitled to permanent benefits, he was required to \nshow (1) he sustained an injury arising out of and  in the course of his employment; (2) \nthat  the  injury  was  caused  by  a  specific  incident;  (3)  that  the  injury  caused  internal  or \nexternal physical harm to his body; (4) that the injury is supported by objective findings; \nand (5) that the injury was the major cause of the disability or need for medical treatment.  \nThe Court noted that the first four factors were supported by the evidence and the parties’ \nstipulations.  The Court stated: \n   \n  With regard to the fifth factor, the key issue is whether, \n  pursuant to Ark. Code Ann. §11-9-102(4)(F)(ii)(a), \n  Hickman’s compensable knee injury, stemming from \n  his work-related April 26, 2002 accident, was the \n  “major cause” of his resultant impairment rating. \n \n \n The Court went on to find that Hickman failed to prove that his work injury was the \nmajor  cause  of  his  total  knee  replacement  surgery  and  resulting  impairment  rating.    In \nreaching its decision, the Court noted Hickman’s pre-existing degenerative knee condition \nwhich had been described as significant as well as the diagnostic test showing severe \npost-traumatic degenerative arthritis with no acute findings of traumatic injury.  Hickman’s \ntreating physician noted that these findings existed prior to the April 26, 2002 injury. \n The Court also noted that medical records indicated that all physical evidence from \nHickman’s work-related  injury  had  resolved  itself  by  the  time  of  his  knee  replacement \nsurgery.  And finally, the Court noted that Hickman’s surgeon had opined that the severe \npre-existing degenerative changes in his right knee were the major cause of the surgery \nand impairment rating.   \n\nHouse – H208370 \n \n7 \n \n In making its finding that Hickman had failed to prove that his injury was the major \ncause of the total knee replacement surgery and resulting impairment, the Court noted: \n  Further, there is no evidence that the need for Hickman’s \n  knee-replacement surgery and the resulting impairment \n  would not have occurred but for the work-related injury. \n \n \n In a footnote to that statement, the Court noted: \n  We note that when a compensable injury combines with \n  a pre-existing condition to cause the need for treatment, \n  such as knee surgery, permanent benefits are payable \n  for the resulting impairment only if the injury is the major \n  cause of the permanent disability or need for treatment. \n  Ark. Code Ann. §11-9-102(4)(F)(ii)(b) (Supp. 2007) \n  (emphasis added).  Thus, the evidence of a causal \n  connection between the  employment-related injury  \n  and the need for surgery, which was sufficient for \n  purposes of determining the compensability of the \n  knee injury and the knee surgery, did not automatically \n  resolve the key issue in determining entitlement to \n  permanent benefits:  whether the compensable knee \n  injury was the major cause of Hickman’s eventual \n  need for a total knee replacement. \n   \n \n In other words, while a causal connection is sufficient  to   prove   a   compensable \ninjury and liability for surgery, it does not automatically resolve the issue of permanent \nbenefits  which  requires  a  showing  that  the  injury  was  the  major  cause  of  the  need  for \ntreatment and the resulting impairment. \n In this case, claimant also had a significant history of a pre-existing degenerative \ncondition.  In 1997 claimant was involved in a motor vehicle accident which resulted in a \nfracture of the right femur and kneecap.  Claimant underwent surgery on his right knee \nas a result of this prior motor vehicle accident.  Although claimant testified that after he \nrecovered  from  that  injury  and  the  resulting  surgery  he  did  not  have  any  additional \n\nHouse – H208370 \n \n8 \n \nproblems with his right knee until after the June 15, 2022 injury, the medical records reflect \notherwise.   \n On December 12, 2016, claimant was evaluated by Dr. James Long for complaints \ninvolving his left knee.  Although the focus was on the left knee, Dr. Long’s medical report \nindicates  that  an  x-ray was also taken of claimant’s right knee which showed diffuse \narthrosis, particularly in the medial compartment and changes in the patellofemoral joint \nconsistent with “significant posttraumatic degenerative change.”  Dr. Long’s diagnosis \nfrom that evaluation included:  Severe posttraumatic arthrosis of the right knee.  In that \nsame report, Dr. Long also stated: \n  The degeneration of the right hip and the right knee \n  may eventually require replacement arthroplasty. \n  (Emphasis added.) \n \n \n Claimant returned to Dr. Long on March 6, 2017 for a second injection in his left \nknee.  Dr. Long again stated the following with respect to the right knee: \n  He has severe posttraumatic arthrosis of the right  \n  knee from fracture of the femur and injury around \n  the patella that occurred in a motor vehicle accident \n  in the 1990s.   \n \n \n Furthermore, in an office note dated June 29, 2021, Dr. Terri Lewelling stated: \n  History left hip replacement, has been told that he \n  needs both knees replaced, shoulders hurt from \n  previous injury.  States he is not ready to see ortho. \n  When it gets too bad, he will consider it. \n  (Emphasis added.) \n \n \n Finally, approximately one month before the June 15, 2022 accident, claimant was \nseen by Dr. Lewelling for hypertension on May 11, 2022.  Dr. Lewelling’s note of that date \n\nHouse – H208370 \n \n9 \n \ncontains the following notation: \n  Knee bone bone on the right; Lots of pain all the time; \n  Pt is not helpful; walking is hard after ½ day; can go \n  back out after sitting 2 yrs [sic]; Last injection was \n  7-10 yrs ago; 1 mo benefit. \n \n \n These complaints regarding claimant’s right knee pain were noted only one month \nbefore his compensable injury. \n As claimant correctly notes in his post-trial brief, his treating physicians opined that \nhis work-related injury exacerbated the pre-existing arthritis in his right knee.  However, \nas  the  Court  in Hickman  noted,  evidence  of  a  causal  connection  may  be  sufficient  for \nproving compensability of the knee injury and liability for the knee surgery; however, the \nkey issue in determining entitlement to permanent benefits is whether the knee injury was \nthe major cause of the need for the total knee replacement.   \n I find that claimant has failed to prove by a preponderance of the evidence that his \ncompensable  injury  was  the  major  cause  of  the  permanent  disability  or  need  for \ntreatment.    Claimant’s  pre-existing  condition  was  described  as  severe  posttraumatic \narthrosis of the right knee.  According to Dr. Lewelling’s report of June 29, 2021, claimant \nhad been told that he needed both of his knees replaced and that when “it gets too bad, \nhe will consider it.”  Thereafter, in his report of May 11, 2022, Dr. Lewelling indicated that \nclaimant’s right knee was bone on bone and that claimant was having lots of pain.  He \nalso noted that claimant stated that walking was hard after one-half a day and that he had \nto sit for a period of time before returning to work. \n While Dr. Creech suspected that claimant might have a meniscal injury or some \nother  soft  tissue  injury  on  top  of his  arthritis,  this  was  not  established  according  to  the \n\nHouse – H208370 \n \n10 \n \nNovember  16,  2022  operative  report.    Instead,  the  operative  report  indicates  a \npreoperative diagnosis of right knee osteoarthritis with a postoperative diagnosis as the \nsame osteoarthritis. \n Thus, while claimant’s pre-existing arthritic condition was aggravated by the injury \non  June  15,  2022,  resulting  in  payment  of  compensation  of  benefits  and  medical \ntreatment, the injury was not the major cause of the permanent impairment or the need \nfor  treatment.    Therefore,  pursuant  to  A.C.A.  §11-9-102(4)(F)(ii)(a)  and  (b), and  the \ndecision  in Hickman, I  find  that  claimant has  failed  to meet  his burden  of  proving  by  a \npreponderance  of  the  evidence  that  he  is  entitled  to  payment  of  permanent  disability \nbenefits in an amount equal to 37% to the lower extremity. \n \nORDER \n Claimant has failed to prove by a preponderance of the evidence that he is entitled \nto permanent partial disability benefits in an amount equal to 37% to the body as a whole.  \nTherefore, his claim for compensation benefits is hereby denied and dismissed. \n Respondents  are  responsible  for  payment  of  the  court  reporter’s  charges  for \npreparation of the hearing transcript in the amount of $356.45. \n IT IS SO ORDERED. \n \n      ____________________________________ \n       GREGORY K. STEWART \n       ADMINISTRATIVE LAW JUDGE","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H208370 JASON HOUSE, Employee CLAIMANT PENSKE LOGISTICS, INC., Employer RESPONDENT OLD REPUBLIC INSURANCE CO., Carrier/TPA RESPONDENT OPINION FILED OCTOBER 2, 2023 Hearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Fort Smith, Sebastian County, A...","fetched_at":"2026-05-19T23:01:11.720Z","links":{"html":"/opinions/alj-H208370-2023-10-02","pdf":"https://labor.arkansas.gov/wp-content/uploads/HOUSE_JASON_H208370_20231002.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}