{"id":"full_commission-G605091-2023-09-13","awcc_number":"G605091","decision_date":"2023-09-13","opinion_type":"full_commission","claimant_name":"Patricia Kizzire","employer_name":"Petrus Stuttgart, Inc","title":"KIZZIRE VS. PETRUS STUTTGART, INC. AWCC# G605091 SEPTEMBER 13, 2023","outcome":"dismissed","outcome_keywords":["remanded:1","dismissed:7","granted:1"],"injury_keywords":["knee"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/Kizzire_Patricia_G605091_20230913.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Kizzire_Patricia_G605091_20230913.pdf","text_length":16659,"full_text":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n \nCLAIM NO.  G605091 \n \nPATRICIA G. KIZZIRE, \nEMPLOYEE \n \nCLAIMANT \nPETRUS STUTTGART, INC.,  \nEMPLOYER \n \nRESPONDENT NO. 1 \nCENTRAL ARKANSAS AUTO DEALERS SIF/ \nRISK MANAGEMENT RESOURCES, \nINSURANCE CARRIER/TPA \n \nDEATH & PERMANENT TOTAL \nDISABILITY TRUST FUND \nRESPONDENT NO. 1 \n \n \n \nRESPONDENT NO. 2 \n  \n      \nOPINION FILED SEPTEMBER 13, 2023 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE GARY DAVIS, Attorney at Law, \nLittle Rock, Arkansas. \n \nRespondents No. 1 represented by the HONORABLE KAREN H. \nMcKINNEY, Attorney at Law, Little Rock, Arkansas. \n \nRespondents No. 2 represented by the HONORABLE CHRISTY L. KING, \nAttorney at Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Vacated & Remanded. \n \n \n OPINION AND ORDER \nThe claimant appeals an administrative law judge’s opinion filed \nFebruary 22, 2023.  The administrative law judge granted the respondents’ \nmotion to dismiss.  After reviewing the entire record de novo, the Full \nCommission vacates the administrative law judge’s order dismissing the \nclaim.  We remand the matter to the administrative law judge for \nconsideration of whether the respondents have paid for reasonably \n\nKIZZIRE - G605091   2\n  \n \n \nnecessary medical treatment provided in connection with the compensable \ninjury to the claimant’s right knee.     \nI.  HISTORY \n The record indicates that Pat Kizzire, now age 78, became employed \nwith the respondents, Petrus Stuttgart, Inc. in January 1998.  The parties \nstipulated that the claimant “sustained a compensable scheduled injury to \nthe right knee” on December 21, 2015.     \nAccording to the record, the claimant treated at Baptist Health \nStuttgart Medical Clinic beginning December 22, 2015 where the claimant \nwas assessed with “Right knee pain.”  The claimant underwent a “Right \nknee arthroscopic partial lateral meniscectomy and tricompartmental \nchondroplasty” on July 18, 2016.  The pre- and post-operative diagnosis \nwas “Right knee lateral meniscus tear and osteoarthritis.”  The claimant \ntestified that she underwent a right knee replacement in July 2017. \nThe claimant filed a Form AR-C, CLAIM FOR COMPENSATION, on \nNovember 28, 2017.  The CLAIM INFORMATION section of the Form AR-C \nindicated that the claimant was claiming “additional benefits” to include \nAdditional Temporary Total, Additional Temporary Partial Disability, \nAdditional Permanent Partial, Additional Medical Expenses, Rehabilitation, \nand Attorney Fees.       \n\nKIZZIRE - G605091   3\n  \n \n \nThe record indicates that the respondents paid temporary total \ndisability benefits through February 25, 2018.  On September 19, 2018, Dr. \nD. Gordon Newbern assigned the claimant a “right lower extremity \nimpairment of 50%.”  The parties stipulated that the respondents accepted \na 37% permanent anatomical impairment rating.   \n A pre-hearing order was filed on January 30, 2019.  The claimant \ncontended, “Claimant contends that admitted compensable injuries were \nsustained to both knees 12/21/15.  Claimant has had a knee replacement \non the right side, for which she was given an impairment rating of 50%.  \nRespondents have indicated they are only accepting 37%.  The different \n(sic) is controverted.  Claimant is also in need of treatment for her left \nknee/leg.  Respondents are denying claim.  Claimant reserves the right to \npursue other benefits to which claimant may become entitled in the future.  \nClaimant’s attorney respectfully requests that any attorney’s fees \nowed by claimant on controverted benefits paid by award or otherwise \nbe deducted from claimant’s benefits and paid directly to claimant’s \nattorney by separate check, and that any Commission Order direct the \nrespondent to make payment of attorney’s fees in this manner.”   \n The respondents contended, “Respondents contend that they \naccepted an injury to the claimant’s right lower extremity.  Respondents \nfurther contend that the claimant did not sustain an injury to her left lower \n\nKIZZIRE - G605091   4\n  \n \n \nextremity that is supported by objective medical findings.  Finally, \nRespondents contend that the 50% rating assessed by Dr. Newbern on \nSeptember 19, 2018 specifically uses portions of the Guides that use pain \nas a basis for impairment in contravention of Ark. Code Ann. §11-9-522(g) \nwhich provides that the Commission shall adopt an impairment rating guide \nto be used in the assessment of anatomical impairment and that the guide \nshall not include pain as a basis for impairment....”   \n The parties agreed to litigate the following issues:  “compensability \n(left leg pursuant to Ark. Code Ann. §11-9-102; medical treatment; \nadditional thirteen percent (13%) in anatomical impairment; and \nattorney’s fees.  All other issues are reserved.”   \n A hearing was held on July 25, 2019.  The claimant testified on direct \nexamination: \nQ.  You are still undergoing active medical treatment and still \nunder active care for your right knee in particular; correct? \nA.  Yes. \n \n An administrative law judge filed an opinion on October 9, 2019.  The \nadministrative law judge found, among other things, that the claimant \nproved “she sustained a left knee injury on December 21, 2015, that \nremains untreated.”  The administrative law judge directed the respondents \n“to pay an additional thirteen percent (13%) in anatomical impairment for \nthe claimant’s right knee.”  The administrative law judge found, “4.  The \n\nKIZZIRE - G605091   5\n  \n \n \nrespondents are directed to pay all reasonable and necessary medical \nexpenses for both knees within thirty (30) days of receipt, pursuant to Rule \n30.”   \n The respondents appealed to the Full Commission.  In an opinion \nfiled August 14, 2020, the Full Commission reversed the administrative law \njudge’s October 9, 2019 decision with regard to the claimant’s left knee.  \nThe Full Commission found that the claimant did not prove she sustained a \ncompensable injury to her left knee.  The Full Commission also found that \nthe claimant did not prove she sustained permanent anatomical impairment \ngreater than the 37% rating accepted and paid by the respondents. \n On May 19, 2021, the Full Commission granted a motion by Gary \nDavis to withdraw as the claimant’s attorney. \n The record contains a RESPONDENTS’ MOTION TO DISMISS with \na CERTIFICATE OF SERVICE dated October 12, 2022.  The respondents \nstated in part: \n1.  Claim number G605091 involves an injury on December \n21, 2015, when the claimant sustained a compensable \ninjury to her right knee.   \n2.  Respondents filed the First Report of Injury on July 19, \n2016, and the AR-2 on July 27, 2016, accepting this as a \ncompensable injury to the right knee.... \n3.  Claimant filed an AR-C on November 28, 2017, requesting \nboth initial and additional benefits.... \n4.  Issues arose in this claim regarding whether the claimant \nalso sustained a compensable injury to her left knee, \nclaimant’s entitlement to additional medical treatment, and \nthe claimant’s permanent impairment rating. \n\nKIZZIRE - G605091   6\n  \n \n \n5.  Following a hearing and appeal to the Full Commission, \nthe Full Commission found that the respondents had paid \nthe correct impairment rating and that the claimant did not \nprove she sustained a compensable injury to her left \nknee.... \n6. The Full Commission’s August 14, 2000, opinion was not \nappealed and is now res judicata. \n7. Claimant’s attorney filed a Motion to Withdraw as Counsel \non April 27, 2021, which was granted by the Full \nCommission in an order dated May 19, 2021.... \n8.  All justiciable issues have been resolved by the hearing \nand Full Commission opinion. \n9.  Claimant has not requested a hearing on this claim in the \nlast six months. \n                    10.  Pursuant to A.C.A. §11-9-702(a)(4), 11-9-702(d) and/or  \nCommission Rule 099.13 Respondents move that claim \nG605091 be dismissed without prejudice for failure to \nprosecute this claim.        \n \nAfter a hearing, an administrative law judge filed an opinion on \nFebruary 22, 2023.  The administrative law judge ordered, “there is no \nalternative but to find that the Motion to Dismiss should be granted and this \nmatter should be dismissed without prejudice at this time.”   \nThe claimant filed a notice of appeal to the Full Commission. \nOn May 12, 2023, the respondents filed a MOTION TO ADMIT \nADDITIONAL EVIDENCE ON APPEAL TO THE FULL COMMISSION.  \nThe respondents moved to introduce into the record “a Conditional \nPayment Search from CMS to determine if Medicare has paid for any \nmedical treatment that had been authorized by Respondents for claimant’s \ncompensable right knee injury.”   \n\nKIZZIRE - G605091   7\n  \n \n \nThe Full Commission filed a unanimous ORDER on June 23, 2023:  \n“After consideration of Respondents’ motion with no objection by the \nClaimant to the motion and all other matters properly before the \nCommission, we find that the Respondents’ Motion To Admit Additional \nEvidence On Appeal To The Full Commission should be and hereby is \ngranted.” \nII.  ADJUDICATION \n Ark. Code Ann. §11-9-702(Repl. 2012) provides, in pertinent part: \n  (b)  TIME FOR FILING ADDITIONAL COMPENSATION.... \n(d)  If within six (6) months after the filing of a claim for \nadditional compensation no bona fide request for a hearing \nhas been made with respect to the claim, the claim may, upon \nmotion and after hearing, if necessary, be dismissed without \nprejudice to the refiling of the claim within the limitation period \nspecified in subsection (b) of this section.   \n \n An administrative law judge determined in the present matter, “I am \ncompelled to find that the Motion to Dismiss should be granted due to the \nclaimant’s lack of prosecution and the matter should be dismissed without \nprejudice.”  The Full Commission does not affirm this finding.     \n The parties stipulated that the claimant sustained a compensable \ninjury to her right knee on December 21, 2015.  The claimant treated with \nvarious medical providers including Baptist Health Stuttgart Medical Clinic.  \nThe claimant filed a Form AR-C, CLAIM FOR COMPENSATION, on \nNovember 28, 2017.  The claimant contended, among other things, that she \n\nKIZZIRE - G605091   8\n  \n \n \nwas entitled to “Additional Medical Expenses.”  A pre-hearing order was \nfiled on January 30, 2019 wherein the claimant contended that was entitled \nto an anatomical impairment rating greater than that accepted by the \nrespondents.  The claimant also contended, “Claimant reserves the right to \npursue other benefits to which claimant may become entitled in the future.”  \nThe parties agreed to litigate issues including “medical treatment.”   \n A hearing was held on July 25, 2019.  The claimant testified on direct \nexamination that she was “still under active care” for her right knee.  An \nadministrative law judge filed an opinion on October 9, 2019.  The \nadministrative law judge found that the claimant sustained a compensable \ninjury to her left knee in addition to the stipulated compensable injury to the \nclaimant’s right knee.  The administrative law judge ordered the \nrespondents to pay an increased anatomical impairment rating.  The \nadministrative law judge also found, “4.  The respondents are directed to \npay all reasonable and necessary medical expenses for both knees within \nthirty (30) days of receipt, pursuant to Rule 30.”  The respondents appealed \nto the Full Commission.   \n The Full Commission reversed the administrative law judge’s finding \nthat the claimant proved she sustained a compensable injury to her left \nknee, and we reversed the administrative law judge’s finding that the \nclaimant was entitled to an increased impairment rating.  However, the Full \n\nKIZZIRE - G605091   9\n  \n \n \nCommission did not disturb the administrative law judge’s implicit finding \nthat directed the respondents to pay for reasonably necessary medical \ntreatment provided in connection with the claimant’s compensable right \nknee injury. \n The respondents now seek to dismiss the claim without prejudice.  \nThe respondents assert that the claimant has “failed to prosecute this \nclaim.”  The record does not support this assertion.  The Full Commission \nfinds that the claimant has been diligent in prosecuting her claim.  The \nparties stipulated that the claimant sustained a compensable injury to her \nright knee on December 21, 2015.  The Full Commission did not modify or \nreverse the administrative law judge’s October 9, 2019 opinion which \ndirected the respondents to pay for all reasonably necessary medical \ntreatment provided in connection with the compensable injury.  There has \nnot been a “want of prosecution” in the present claim, and the evidence \ndemonstrates that the claimant has been diligent in requesting appropriate \nbenefits.   \n The respondents have introduced into the record documentation of \nbilling from various medical providers including the original medical \nprovider, Baptist Health Medical Center Stuttgart.  The Full Commission \ntherefore vacates the administrative law judge’s dismissal of this claim.  We \nremand the matter to the administrative law judge for consideration of the \n\nKIZZIRE - G605091   10\n  \n \n \nclaimant’s contention that the respondents have failed to pay for reasonably \nnecessary medical treatment provided in connection with the compensable \ninjury to the claimant’s right knee.   \n IT IS SO ORDERED. \n \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner \n \n \n \nCommissioner Mayton dissents. \nDISSENTING OPINION \nI must respectfully dissent from the Majority’s determination that this \nmatter should be remanded to the administrative law judge for \nconsideration of whether the respondents have paid for reasonably \nnecessary medical treatment provided for the claimant’s 2015 right knee \ninjury. \nThe facts in this matter are not in dispute.  Prior to the respondent’s \nOctober 12, 2022 Motion to Dismiss, the last filing was a May 19, 2021 \norder by the Full Commission granting a motion by Gary Davis to withdraw \nas the claimant’s attorney.  The claimant testified for the first time at the \nJanuary 10, 2023 motion to dismiss hearing that after obtaining authorized \nmedical treatment in 2020 which was paid for by the respondent carrier, the \n\nKIZZIRE - G605091   11\n  \n \n \nclaimant sought additional treatment on her right knee that was billed to and \npaid for by Medicare.  (Hrng. Tr., P. 9).  Concurrent with a May 12, 2023 \nmotion to admit additional evidence on appeal, which was ultimately \ngranted by the Commission, the respondents submitted a payment \nsummary form from Centers for Medicare and Medicaid Services \nConditional Payment Search reflecting its diligence in determining if \nMedicare has paid for any authorized treatment of the claimant’s right knee. \nThis summary shows that no payments have been made by Medicare since \n2019.  Thus, Medicare has not paid for any treatment of Claimant’s \ncompensable right knee injury after she last sought treatment in 2020 which \nwas paid by the respondents.  No hearing was ever requested by the \nclaimant on this issue. \nOur rules provide that “If within six (6) months after the filing of a \nclaim for additional compensation no bona fide request for a hearing has \nbeen made with respect to the claim, the claim may, upon motion and after \nhearing, if necessary, be dismissed without prejudice.”  Ark. Code Ann. § \n11-9-702(d).  Further, Commission Rule 99.13 states “[u]pon meritorious \napplication to the Commission from either party in an action pending before \nthe Commission, requesting that the claim be dismissed for want of \nprosecution, the Commission may, upon reasonable notice to all parties, \nenter an order dismissing the claim for want of prosecution.”  \n\nKIZZIRE - G605091   12\n  \n \n \nWhile the Majority finds that the claimant’s ongoing medical \ntreatment satisfies the Commission’s requirement that a claim be diligently \nprosecuted, it is clear that without prompting by the motion to dismiss filed \nby the respondents, the claimant would not have addressed her nearly four-\nyear-old concerns regarding Medicare billing.  Further, there are no \noutstanding issues to litigate in this matter, nor has any hearing request \nbeen made on any issues since 2019.  Those issues are res judicata.  For \nthese reasons, this matter should be dismissed without prejudice. \nFor the reasons stated above, I respectfully dissent. \n \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner","preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. G605091 PATRICIA G. KIZZIRE, EMPLOYEE CLAIMANT PETRUS STUTTGART, INC., EMPLOYER RESPONDENT NO. 1 CENTRAL ARKANSAS AUTO DEALERS SIF/ RISK MANAGEMENT RESOURCES, INSURANCE CARRIER/TPA DEATH & PERMANENT TOTAL","fetched_at":"2026-05-19T22:29:46.124Z","links":{"html":"/opinions/full_commission-G605091-2023-09-13","pdf":"https://labor.arkansas.gov/wp-content/uploads/Kizzire_Patricia_G605091_20230913.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/"}}