{"id":"alj-H305255-2025-02-06","awcc_number":"H305255","decision_date":"2025-02-06","opinion_type":"alj","claimant_name":"Seth Stanley","employer_name":"Novo Building Products LLC","title":"STANLEY VS. NOVO BUILDING PRODUCTS LLC AWCC# H305255 February 06, 2025","outcome":"granted","outcome_keywords":["granted:2"],"injury_keywords":["knee","shoulder","back"],"pdf_url":"https://www.labor.arkansas.gov/wp-content/uploads/STANLEY_SETH_H305255_20250206.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"STANLEY_SETH_H305255_20250206.pdf","text_length":18953,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO. H305255 \n \n \nSETH A. STANLEY, EMPLOYEE CLAIMANT \n \nNOVO BUILDING PRODUCTS LLC, EMPLOYER RESPONDENT \n \nCHARTER OAK FIRE INS. CO., CARRIER/TPA RESPONDENT \n \n \n OPINION FILED FEBRUARY 6, 2025 \n \n \nHearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Russellville, Pope \nCounty, Arkansas. \n \nClaimant represented by GARY DAVIS, Attorney, Little Rock, Arkansas. \n \nRespondents represented by MICHAEL E. RYBURN, Attorney, Little Rock, Arkansas. \n \n \n STATEMENT OF THE CASE \n  \n \n On December  17,  2024,  the  above  captioned  claim  came  on  for a hearing  at Russellville, \nArkansas.  A pre-hearing conference was conducted on August 22, 2024, and a pre-hearing order was \nfiled on that same date.  A copy of the pre-hearing order has been marked as Commission’s Exhibit \n#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 this claim.  \n            2.   The employee/employer/carrier relationship existed on August 8, 2023. \n            3.   Claimant sustained a compensable injury regarding his left knee. \n            4.   The compensation rates are $488.00 for temporary total disability and $366.00 for \npermanent partial disability.  \n\nStanley-H305255 \n2 \n \n However, at the hearing, claimant disputed the stipulation as to his temporary total disability \n(TTD) rate, and the parties arrived at a new stipulation of $564.00 for TTD and $423.00 for \npermanent partial disability (PPD).\n1\n   \n By agreement of the parties, the issues to be litigated and resolved at the forthcoming hearing \nwere limited to the following: \n            1. Whether claimant is entitled to temporary total disability benefits. \n            2. Whether claimant is entitled to medical benefits. \n            3. Attorney’s fees. \n All other issues are reserved by the parties. \n In  their  post-hearing  briefs,  the  parties  agreed  that  the  issues being  litigated  was  whether \nclaimant was entitled to TTD from February 19, 2024, through September 5, 2024.  The parties had \nreached an agreement regarding claimant’s need for additional medical treatment following the entry \nof  the  prehearing  order,  and  therefore,  claimant  removed  his  claim  for  additional  medical  benefits \nfrom this hearing, that issue being now reserved.   \n The claimant contends that “He sustained admitted compensable injuries.  His authorized \ntreating  physician,  Dr.  Kirk  Reynolds,  has  indicated  that  the  claimant  has  not  reached  maximum \nmedical  recovery.    His  temporary  disability  was  inappropriately  discontinued.    Claimant  contends \nentitlement to payment of temporary total disability benefits, beginning with the last payment of said \nbenefits and continuing through a date yet to be determined.  This matter has been controverted for \npurposes of attorney’s fees.  Claimant’s attorney respectfully requests that any attorney’s fees owed by \nclaimant on controverted benefits paid by award or otherwise be deducted from claimant’s benefits \n \n1\n Permanent  partial  disability  payments  are  not  being  sought  in  this  hearing.  However,  respondent  made  some \npayments it termed as PPD which are to be credited against its indemnity obligations to claimant.  \n\nStanley-H305255 \n3 \n \nand paid directly to claimant’s attorney by separate check, and that any Commission’s Order direct the \nrespondent to make payment of attorney’s fees in this manner.” \n The respondents contend that “This claim was accepted and paid.  The claimant injured his \nleft knee at work.  He was treated and released with a 7% permanent partial disability rating which has \nbeen paid.  He has had an FCE showing that he is capable of medium levels of work.  His maximum \nmedical improvement date was February 27, 2024.  He is not entitled to additional benefits.” \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 \n  FINDINGS OF FACT & CONCLUSIONS OF LAW \n \n 1.   The stipulations agreed to by the parties at a pre-hearing conference conducted on August \n22, 2024, and contained in a pre-hearing order filed that same date are hereby accepted as fact, as are \nthe additional stipulations announced at the hearing as set forth above. \n 2.    Claimant met his burden of proof that he is entitled to temporary total disability benefits \nat a rate of $564.00 per week from August 8, 2023, to a date to be determined, with respondents being \nentitled to credit against that total for any indemnity payments made to claimant.   \n \n FACTUAL BACKGROUND \n At the conclusion of the hearing, I requested briefs from both parties, setting forth what they \nbelieved  the  evidence  proved  in  support  of  their  contentions.    I  very  much  appreciated  both \nsubmissions, which are blue backed as exhibits to this hearing.  \n \n\nStanley-H305255 \n \n4 \n \n \n \nHEARING TESTIMONY  \n \n Claimant was the only witness that testified at the hearing.  On August 8, 2023, he sustained a \nknee injury while acting as a territory service representative for respondent Novo.  That job required \nhim to physically place between 8000 to 14,000 pounds of material in various Lowe’s locations.  On \nthe date of his injury, it had been raining; while carrying seven to eight boards on his left shoulder, \nclaimant slipped  in  the  water  and  twisted  his  knee.   He was  seen  by  the Conservative Care \nOccupational  Health  Clinic  the  next  day,  eventually  being  referred  to  Dr. William  Brown,  who \nperformed surgery on claimant’s left knee on September 20, 2023.  Claimant said he continued to have \nproblems with the knee and had a second surgery on September 5, 2024, this time under the care of \nDr. Kirk Reynolds.   \n Following  his  first  surgery,  claimant  was  sent  for  a  functional  capacity  assessment  that  was \nconducted  on  February  19,  2024.    Following  that  evaluation,  he  began  receiving  permanent  partial \ndisability payments through May 20, 2024.  Claimant contended that his temporary disability should \nnever have been discontinued because he continued to have problems after the first surgery. \n Claimant had a recommendation for the second surgery to be performed by Dr. Reynolds but \nthere was a delay in getting the approval from respondent Travelers for the surgery. Once that was \nobtained, there was then a delay for the plate that was implanted into his knee to be manufactured \nand delivered.   \n Claimant said he was in an unloader brace post-surgery from September 28, 2023, until Dr. \nReynolds performed the second surgery on September 5, 2024.  He had chronic pain in the knee after \nthe first surgery and was limited as to what he could do when trying to carry, bend, or bear weight on \nthat leg.  \n\nStanley-H305255 \n \n5 \n \n \n Claimant testified that he was not able to work between February 19, 2024, and September 5, \n2024, at his job as there was no work offered to him during that period of time within his restrictions. \n On  cross-examination,  claimant explained that  his  current employment  status  was  until  he \ncould operate at full capacity, there was nothing for him to do with the company.  The restrictions he \nreceived  in  February  2024  said  he  could  do  medium  levels  of  work  but  could  not  push  a  fifteen \nhundred pound cart; there were no attempts made to accommodate claimant within those restrictions.  \nClaimant stated that to perform his job, he would ask the forklift driver at Lowe’s to bring the pallet \nof product which had previously been delivered to the store to a cart that claimant would then push \ninto the aisles and offload the product from the cart onto the shelf or display. \n Claimant  testified  that  when  he  saw  Dr.  Reynolds  on  May  15,  2024, the  same  physical \nrestrictions  were  continued,  which  included  the  weight  restrictions  on  the  cart  claimant  utilized  in \nperforming his job duties. Claimant testified that he had not been released with those same restrictions \nafter his September 2024 surgery because he was still undergoing care and there had not been “an end \ndate discussed” as to when claimant would be released from care. Claimant said he had not looked for \nany other jobs because he was still employed by respondent Novo while his worker’s compensation \nclaim was ongoing, and he believed that would be unethical.  Were he permanently prohibited from \noperating  a 1500-pound cart, claimant  believed  he would no  longer  be  able to  work  for  Novo  and \nwould then be forced to take other action. \n Claimant testified about what he believed was incorrect regarding how the indemnity benefits \nhe  received between  February  19, 2024, and  September  5,  2024, were  either underpayments or \nmischaracterized payments.  His contentions will be explained more fully in the adjudication section \nof this Opinion. I found claimant to be a credible witness and that his testimony was consistent with \nthe documentary evidence.  \n\nStanley-H305255 \n \n6 \n \n \n \nREVIEW OF THE EXHIBITS \n \n The exhibits in the case were prepared, at least in part, for issues that were not presented at \ntrial. As such, an exhaustive review of the entire set of documents is unnecessary to decide the issues \nthat were litigated.  \nDr.  Brown  performed  a  left  knee  arthroscopy  on  September  20,  2023.    The  surgical  note \nrecords the procedure was “arthroscopic microfracture medial femoral condyle left knee ½ cm \ndefect.”  Of particular interest was this section of the procedure detail:  \n \n“The medial  meniscus  was  probed  and  at  one  point  I  thought  there  was  a \npotential posterior horn attachment tear, but I think this was just loose bodies \nfloating in the posterior compartment. On probing and pulling on the medial \nmeniscus, I cannot reproduce a tear.” \n \n Following the surgery, claimant participated in a course of physical therapy and continued to \nsee Dr. Brown for regular follow-ups.  On January 4, 2024, Dr. Brown recommended claimant return \nto work for half-days for 4 weeks with the goal of releasing him to full activity without restrictions.  \nThis recommendation was not possible; on February 1, 2024, Dr. Brown recorded “I recommend at \nthis  point  we  get  an  FCE  because  I  do  not  know  how  else  to  manage  his  work  requirements  and \noption.”   The FCE was performed on February 19, 2024, during which claimant put forth a reliable \neffort. After  reviewing  the  FCE,  Dr.  Brown found claimant had  reached maximum  medical \nimprovement  and  assessed  a  permanent  impairment  rating  of 7% to claimant’s lower extremity.   \nClaimant was “released to return to work with light duty restrictions in the medium labor criteria.”  \nThat category did not allow claimant to push 1500 pounds, which was a requirement for claimant’s \nposition with Novo.  \nClaimant requested a change of physicians after he was discharged from Dr. Brown’s care \n\nStanley-H305255 \n \n7 \n \n \nand first saw Dr. Reynolds on May 15, 2024.  His assessments and recommendations were: \nASSESSMENT \nLeft knee pain and loss of function secondary to traumatic chondral \ndefect of the medial femoral condyle. Unfortunately, this has failed to respond \nto arthroscopic microfracture. He has acquired varus alignment of the knee \nwith  medial  compartment  overload. Fortunately,  no  evidence  of  meniscal \ninjury. \n \nRECOMMENDATIONS \n \nI had a lengthy discussion today with Seth. Given his varus alignment \nand medial compartment overload he is likely to continue having disability in \nthe knee secondary to pain and loss of function. Fortunately, he is responding \nfavorably to the medial unloader brace. I encouraged him to continue wearing \nthe medial unloader brace. From a surgical perspective I would recommend \na valgus producing high tibial osteotomy. In the same setting I would perform \nan arthroscopic  evaluation  of  the  articular  cartilage  of his  medial  femoral \ncondyle.  In  the  setting  of  a  defect  less  than  12  mm, I  would perform  an \nautograft OATS to reconstruct his chondral defect. In the setting of a defect \ngreater than 12 mm, l would perform a chondral biopsy with anticipation of \na staged matrix autologous chondrocyte implantation if necessary. \nRisks and benefits of surgery were discussed at length. Postoperative \nrecovery  and  rehabilitation  were  outlined.  Seth  would  like  to proceed  with \nsurgery. I will order a CT scan of the left lower extremity using the BodyCAD \nFine osteotomy protocol. Once we have this available for review then we will \nbegin  preoperative  planning  and  schedule  him  for surgery  at  a  mutually \nconvenient  time. In  the  interim  he  remains  on  modified  duty  at work  with \nrecurrent restrictions in place. He has not reached MMI.   \n \nThis surgery  was eventually approved  by  respondents\n2\n and the  operation  took  place  on \nSeptember  5,  2024.   That operative  report  was  much  more  detailed  than  the  one prepared  by  Dr. \nBrown after the September 20, 2023, procedure.  The procedures performed were: \n1. Opening wedge to the left medial proximal tibial osteotomy. \n2. Left  knee  diagnostic  arthroscopy  with  chondroplasty  the  medial  femoral \ncondyle,  removal  of  multiple  chondral  loose  bodies  and  full-thickness \nchondral biopsy for possible staged MACI. \n \n2\n Before approving the surgery recommended by Dr. Reynolds, respondent Travelers submitted this matter for a peer \nreview, which denied the necessity of the second procedure.  To its credit, Travelers authorized the treatment despite \nthat denial.  As the peer review went only to the reasonableness of the second surgery, that peer review will not be \nexamined further in this opinion.    \n\nStanley-H305255 \n \n8 \n \n \n3. Intraoperative interpretation of x-ray by surgeon; AP and lateral views of the \nleft knee.  \n \n               The diagnostic arthroscopy revealed: \n1. The articular cartilage of the patellofemoral part was normal. \n2. The  medial  compartment  showed  a  15mm  X  20mm  full-thickness  chondral \ndefect  along  the weight-bearing portion  of  the  medial  femoral  condyle  with \nfibrocartilage  and  a  small  central  area  secondary  to  previous  microfracture \nwhich had failed.  \n3. There was medial meniscus deficiency.  \n4.  The ACL and PCL were normal. \n5. The lateral compartment was normal. \n6. There  were  multiple  chondral  loose  bodies  within  the  medial  gutter,  lateral \ngutter and suprapatellar pouch. \n  \nADJUDICATION \n \n Because the parties agreed to the compensation rate and since respondents authorized medical \ncare after the entry of the prehearing order in this matter, claimant’s brief states “the sole issue then \nis  the  period  of 09/05/24  back  to  02/19/24  with  respect  to  the  payment  of  temporary  disability \nbenefits.”  In its brief, respondent agreed that the disability payments should be recalculated at the \nappropriate TTD and PPD rates, but denied claimant was entitled to TTD between February 19, 2024, \nand September 5, 2024, because he had been released to return to work with a permanent impairment \nrating on February 19, 2024.  While I understand respondent’s position for a portion of the time in \nquestion, I find claimant has proven he was entitled to TTD from February 19, 2024, until September \n5, 2024.  \n A claimant who suffers a scheduled injury is entitled to temporary total disability benefits until \nthey reach the end of their healing period or until they return to work, whichever occurs first. Wheeler \nConstruction Co. v. Armstrong, 73 Ark. App. 146, 41 S.W. 3d 822 (2001).  In its brief, respondents argued \nthat “claimant was released to return to work and rated before he ever saw Dr. Reynolds. Dr. Reynolds \n\nStanley-H305255 \n \n9 \n \n \ncould not take him off work retroactively.”  There is no question that Dr. Brown released claimant at \nmaximum medical improvement (MMI) on February 27, 2024, with a permanent impairment rating.  \nThere  is  also  no  question  that  when  Dr.  Reynolds  saw  claimant  on  May  20,  2024, for  his  initial \nexamination, he stated in no uncertain terms that claimant had not reached MMI.  I need not decide \nif  Dr.  Reynolds  could  retroactively excuse  claimant  from  working before he  saw  him,  because  the \nproof in the case satisfies me that claimant had not reached the end of his healing period when Dr. \nBrown released him.   \nThe Commission has the authority to accept or reject medical opinion and to determine its \nmedical soundness and probative force, LVL, Inc. v. Ragsdale, 2011 Ark. App. 144, 381 S.W.3d 869. In \nreviewing the  operative  reports  from  Dr.  Brown  and  Dr.  Reynolds,  it  is apparent  there  was  more \ndamage to claimant’s knee than Dr. Brown realized.  I therefore reject Dr. Brown’s finding of MMI \nas of February 27, 2024, accept Dr. Reynolds’ opinion that claimant had not reached the end of his \nhealing  period  on  May  20,  2024,  and  thus find  that  claimant  has  not yet  reached  MMI  for  his \ncompensable injury of August 8, 2023. \nBased  on  the stipulation as to the claimant’s compensation rate and my previous  finding \nregarding MMI, claimant should have been paid $564.00 weekly from the date of his injury until he is \nreleased from care by Dr. Reynolds or returns to work, whichever occurs first. Respondent is entitled \nto credit for all payments made to claimant, regardless of whether the payments were designated as \nTTD  or PPD. Respondent will calculate  the  sum owed  to  claimant  after  taking  proper  credit  for \npayments made during the pendency of this claim.    \n \nORDER \n \nRespondents  are  directed  to  pay  benefits  in  accordance  with  the  findings  of  fact  set  forth \n\nStanley-H305255 \n \n10 \n \n \nherein this Opinion.  All accrued sums shall be paid in lump sum without discount, and this award \nshall earn interest at the legal rate until paid, pursuant to Ark. Code Ann. § 11-9-809. \nPursuant to Ark. Code Ann. § 11-9-715, the claimant's attorney is entitled to a 25% attorney's \nfee on the indemnity benefits awarded herein. This fee is to be paid one half by the carrier and one-\nhalf  by  the  claimant.  All  issues  not  addressed  herein  are  expressly  reserved  under  the  Act.  If  not \nalready paid, Respondent is responsible for paying the court reporter her charges for preparation of \nthe transcript.  \n IT IS SO ORDERED. \n                                                                                              \n_______     \n JOSEPH C. SELF \nADMINISTRATIVE LAW JUDGE","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H305255 SETH A. STANLEY, EMPLOYEE CLAIMANT NOVO BUILDING PRODUCTS LLC, EMPLOYER RESPONDENT CHARTER OAK FIRE INS. CO., CARRIER/TPA RESPONDENT OPINION FILED FEBRUARY 6, 2025 Hearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Russellville, Pope County, ...","fetched_at":"2026-05-19T22:43:20.839Z","links":{"html":"/opinions/alj-H305255-2025-02-06","pdf":"https://www.labor.arkansas.gov/wp-content/uploads/STANLEY_SETH_H305255_20250206.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}