{"id":"full_commission-G906168-2023-06-13","awcc_number":"G906168","decision_date":"2023-06-13","opinion_type":"full_commission","claimant_name":"Gail Tibbetts","employer_name":"Westwood Primary School","title":"TIBBETTS VS. WESTWOOD PRIMARY SCHOOL AWCC# G906168 JUNE 13, 2023","outcome":"granted","outcome_keywords":["granted:3","denied:2"],"injury_keywords":["knee","hip","sprain","back"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/Tibbetts_Gail_G906168_20230613.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Tibbetts_Gail_G906168_20230613.pdf","text_length":35458,"full_text":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \nCLAIM NO. G906168 \n \n \nGAIL TIBBETTS,  \nEMPLOYEE  CLAIMANT \n \nWESTWOOD PRIMARY SCHOOL,   \nEMPLOYER                 RESPONDENT \n \nARKANSAS SCHOOL BOARDS ASSOCIATION., \nCARRIER/TPA RESPONDENT \n \n \nOPINION FILED JUNE 13, 2023 \n \nUpon  review  before  the  FULL  COMMISSION,  Little  Rock,  Pulaski  County, \nArkansas. \n \nClaimant represented by the HONORABLE JARID M. KINDER, Attorney at \nLaw, Ozark, Arkansas. \n \nRespondents represented by the HONORABLE MELISSA WOOD, Attorney \nat Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge: Reversed. \n \n \nOPINION AND ORDER \n \n            The claimant appeals a decision of the Administrative Law \nJudge filed on November 15, 2022.  The Administrative Law Judge found \nthat, inter alia, the claimant has failed to prove by a preponderance of the \nevidence that she is entitled to additional medical treatment regarding her \ncompensable right knee injury after Dr. Chris Arnold’s initial Change of \nPhysician evaluation in September 2020 and that the claimant has failed to \nprove by a preponderance of the evidence that she is entitled to temporary \n\nTIBBETTS – G906168                                                               2 \ntotal disability benefits from September 8, 2020, to a date yet to be \ndetermined  After our de novo review of the entire record, the Full \nCommission finds that the claimant has proven by a preponderance of the \nevidence that she is entitled to additional medical treatment as provided by \nDr. Arnold and additional temporary total disability benefits beginning on \nSeptember 8, 2020, and continuing to a date yet to be determined.\n               I.  HISTORY \n  The claimant, now 48 years old, worked for the respondent-\nemployer as a cook.  The claimant sustained an admittedly compensable \ninjury to her right knee in a workplace incident on September 13, 2019.  The \nclaimant testified that the accident happened in the following manner: \nQ Okay.  Now let’s jump into the real reason \n we are here, your workplace injury.  \n When  did you have your workplace \n injury? \n \nA September 13\nth\n of 2019.  It was Friday \n the 13\nth\n. \n \nQ  Okay.  What happened? \n \nA  I went into the walk-in cooler and I \n grabbed a couple of bags of lettuce.  I \n was walking out of the cooler with the \n lettuce and someone removed this \n grease pit rack from the floor and moved \n it and brought it in there, but nothing was \n there.  I didn’t realize it was not there.  So \n the floor was like an inch and a half off.  I \n\nTIBBETTS – G906168                                                             3 \n wasn’t even looking down and I just \n walked and I fell and that was it. \n \n... \n \nQ  Okay.  So what parts of your body were  \n injured? \n \nA  My knees, my elbows hurt, my knees hurt \n at that point. \n \nQ  Okay.  And let’s talk specifically about \n your knee because that is why we are \n here today. \n \nA  Yes. \n \nQ  Did you feel any sort of pain, pop, any \n type of sensation in your leg after you had \n the incident? \n \nA  Yes. \n \nQ  What was that sensation? \n \nA  It was like numbness and weakness and \n when I walked, it would give out. \n \nQ  Now, prior to this incident, had you had \n any problems with your knees? \n \nA  Never. \n \n  The claimant was seen at Mercy Clinic on the day of the work \naccident with the chief complaint of pain to her “L hip, R knee, R elbow”.  \nThe claimant returned to Mercy Clinic on September 16, 2019, with the \nsame complaints.  At this visit, Dr. Terry Clark noted, “Gail’s tertiary \n\nTIBBETTS – G906168                                                             4 \nproblem is pain located in the right knee.  She describes it as aching.  The \nproblem began on 9/13/2019.  Gail says it seems to be constant.  Her pain \nlevel is 8.”  An x-ray taken of the claimant’s right knee that day showed no \nradiographic abnormalities.  The claimant was diagnosed with sprain of \nother specified parts of right knee (patellar tendon), taken off work, and \nprescribed acetaminophen and ibuprofen.  Additionally, a right knee MRI \nwas scheduled. \n  The claimant underwent a right knee MRI on September 17, \n2019, which revealed the following: \nFINDINGS:  Medial and lateral menisci are intact \nwithout evidence of tear.  The anterior and \nposterior cruciate ligaments are intact without \nevidence of tear.  The medial and lateral \ncollateral ligaments are intact. \nNo focal articular cartilage defect or marrow \nedema.  Small popliteal cyst posteromedially.  \nThere is a thin zone of T2 hyperintensity in the \nprepatellar region consistent with prepatellar \nedema or bursitis. \n \nIMPRESSION: \n \n1. No appreciable internal arrangement of the \nknee joint. \n2. Small popliteal cyst posteromedially. \n3. Thin zone of prepatellar fluid which may be \nprepatellar bursitis.  \n \n  The claimant continued to experience right knee pain and \nreturned to Mercy Clinic for a follow-up visit on October 14, 2019.  During \n\nTIBBETTS – G906168                                                             5 \nthis visit, a plan of care was devised that included placing the claimant in a \nhinged knee brace “3x/week for 3 weeks” and “start[ing] physical therapy as \nscheduled”. \n  The claimant underwent six sessions of physical therapy \nbefore Dr. Clark determined she had reached maximum medical \nimprovement (hereinafter, “MMI”) on November 4, 2019, and released the \nclaimant to full duty effective November 1, 2019.  The claimant was \ndischarged from physical therapy after one additional session. \n  The claimant returned to see Dr. Clark on November 25, \n2019.  Dr. Clark noted, “She has had no improvement in the right knee \nsymptoms despite being off work, medications, physical therapy and time.  \nFor this reason, it is felt to be medically prudent at this time to seek the \nopinion of orthopedics.” \n  The claimant was seen by Patrick Walton, PA at Mercy Clinic \nOrthopedics River Valley on December 13, 2019.  After examining the \nclaimant, Walton’s impression was “plica syndrome of the right knee”.  \nWalton noted the following plan: \nPLAN:  She has never had an injection and I I \n[sic] think we should fail that first before we \ndiscussed [sic] any type of surgical intervention.  \nThat is a possibility.  Resection of this plica is \nsomething that could be considered if she fails \nthe injection.  She is happy with getting an \ninjection and not wanting surgery unless it is \nabsolutely necessary.  She has been on \nunrestricted duty.  We will continue that.  We are \n\nTIBBETTS – G906168                                                             6 \ngoing to get her a brace.  She is complaining of \nsome weakness and I think that is probably due \nto just 3 months of knee pain and some \nweakness because she has not been able to \nrehab it well enough because of the pain.  The \nbrace I think will help with that.  She will \ncontinue those exercises.  We will see her back \nin a month to discuss the effects of the injection.  \nInjection of 5 mL of 0.5% Marcaine and 2 mL of \nbetamethasone in the right after her consent \nwas obtained.  No x-rays needed with her return. \n \n  An x-ray taken during this visit showed “minimal joint space \nnarrowing and minimal degenerative disease.  No acute fractures.” \n  The claimant returned to see PA Walton on January 17, 2020.  \nWalton noted that following the injection the claimant felt like she was \nprobably 90%-95% better.  However, she had not tested the knee because \nshe had the flu and was primarily off for three weeks.  Walton indicated that \n“if it flares up again, I think she would be a candidate for a scope to resect \nher plica.” \n  At the claimant’s next visit to see PA Walton, he \nrecommended that the claimant “have a formal excision of her plica from \nthe right knee through an arthroscopy”. \n  On March 18, 2020, Dr. Steven Smith performed a right knee \narthroscopy and resection of anteromedial plica.  Dr. Smith noted in the \nDescription of Procedure: \n... Moderate scarring in suprapatellar pouch \nseen with a large medial shelf medial \nchondromalacia noted where the plica had been \n\nTIBBETTS – G906168                                                             7 \nabrading this area.  Also a small area of very \nsuperficial grade 3 on the weightbearing portion \nof the medial femoral condyle with no flap \ninstability.  Medial meniscus was normal.  ACL \nand PCL normal.  Lateral compartment normal. \n... \n \n  Dr. Smith released the claimant to regular duty with no \nrestrictions on May 26, 2020, noting, “I believe she is at MMI.  She has no \npermanent impairment.” \n  The claimant exercised her right to a one-time change of \nphysician and began receiving treatment from Dr. Chris Arnold.  The \nclaimant’s initial visit with Dr. Arnold was on September 8, 2020.  Dr. Arnold \nnoted the following impressions: \n45 year old female with right knee pain \nsecondary to chondral defect MFC. \nShe had a work injury one year ago.  She had a \nknee scope March 2020 by a doctor in Fort \nSmith which did not help.  Op report reviewed \nshowing grade 3 chondral defect medial femoral \ncondyle.  She continues to have right knee pain, \nswelling, locking which is bothersome with daily \nactivities. \n \n  Dr. Arnold diagnosed claimant with right knee chondromalacia \nand recommended “CSI and MRI to evaluate for chondral defect/flap”.  Dr. \nArnold provided the claimant with a steroid injection and ordered an MRI. \n  The claimant underwent a right knee MRI on September 18, \n2020.  The MRI revealed the following: \nFINDINGS: \n\nTIBBETTS – G906168                                                             8 \nCompared with 17 September, 2019.  Very small \npopliteal cyst actually appears smaller than the \nprevious years exam.  Tear of the anterior horn \nof the lateral meniscus which is a progressive \nfinding from previous years exam.  The cruciate \nand collateral ligaments are intact.  \nDegenerative type changes within the medial \nmeniscus with no definite tear.  Small knee joint \neffusion.  Resolution of previous patellar edema \nsince prior exam.  No significant chondromalacia \nof the patella. \n \nIMPRESSION: \nSmall joint effusion.  Small tear anterior horn \nlateral meniscus.  Tiny popliteal cyst. \n \n  In his September 22, 2020 office notes, Dr. Arnold noted the \nfollowing impression: \n45-year-old female with right knee pain \nsecondary to lateral meniscus tear and chondral \ndefect/flap mfc. \n \n  Dr. Arnold performed an arthroscopy on the claimant on \nOctober 23, 2020.  Dr. Arnold took the claimant off work until January 1, \n2021.  The claimant returned to Dr. Arnold on January 25, 2021, for a \nfollow-up visit.  During this visit, the claimant continued to complain of right \nknee pain.  Dr. Arnold discussed surgery as a treatment option, noting, “I \nexplained that though I am not recommending a surgical intervention at this \ntime, this may be recommended or necessary in the future to alleviate or \ntreat this condition, especially if conservative measures fail or the condition \ncontinues to progress or worsen.” \n\nTIBBETTS – G906168                                                             9 \n  On September 24, 2021, the claimant underwent a right total \nknee arthroplasty.  Dr. Arnold explained the necessity for this intervention \nas follows: \nPlan: Counseling – Knee DJD \nSurgical Options and Alternatives \nTotal knee replacement: In review of the clinical \nrecord and by patient report, the patient has \nprogressively worsening right knee pain and \ninstability that has been recalcitrant to non-\nsurgical treatments.  The patient is unable to \ncomplete their activities of daily living without \nfunctionally limiting pain.  The patient has failed \nobservation.  They have failed a home exercise \nprogram that included quad \nstrengthening/stretching exercises for greater \nthan 12 weeks.  They have attempted a course \nof anti-inflammatory medications consisting of \nibuprofen as needed, this has offered short term \nrelief, but the patient’s symptoms continue.  \nThey have failed rest, corticosteroid injections, \nand wearing of an unloader brace.  Their \nsymptoms are too advanced for arthroscopic \ntreatment.  Further options were reviewed with \nthe patient of continued observation vs. further \nworkup, vs. surgical intervention.  They wish to \nproceed with surgical intervention consisting of a \nright total knee arthroplasty using ROSA robotic \nsystem.   \n \n  The claimant began experiencing stiffness in her right knee \nsecondary to arthrofibrosis.  To address the arthrofibrosis, the claimant \nunderwent a right total knee manipulation on December 1, 2021. \n \n\nTIBBETTS – G906168                                                             10 \n  Dr. Ethan Schock reviewed the claimant’s medical records on \nbehalf of the respondents and provided a report dated August 3, 2022.  Dr. \nSchock opined the following: \n[It] is my opinion that the patient’s mechanism of \ninjury, description of symptoms, radiologic \nstudies, and intraoperative findings do not \nsuggest a reasonable causality and necessary \nassociation for the orthopedic treatments – office \nvisits, radiologic studies (MRI, x-ray, ultrasound), \nor surgical intervention (second arthroscopic \nprocedure, total knee arthroplasty, and \nmanipulation under anesthesia). \n \nThere does not appear to be a[n] MRI \ndocumented structural defect nor arthroscopic \nintraoperative observation from 10/23/2020, to \nsuggest a causal relationship from the 9/13/2019 \nwork-related injury. \n \nThere does not appear to be any evidence to \nsuggest an acute structural injury that can be \nassociated with the 9/13/2019 work-related \ninjury that could, within a reasonable degree of \nmedical certainty, be directly causal to the \ndevelopment of osteoarthritis or need for total \nknee arthroplasty in such a short period of time \n(September 2019 to November 2020[)] (the date \nat which Dr. Arnold recommended this surgery). \n \nRather, all described radiologic and \nintraoperative findings appear to be consistent \nwith a more chronic, preexisting, and \ndegenerative process. \n \n  A Pre-hearing Order was filed on May 25, 2022.  The \nclaimant’s contentions are as follows: \n1. The Claimant, Gail Tibbets [sic], sustained a \ncompensable right knee injury on September 13, \n\nTIBBETTS – G906168                                                             11 \n2019, while working for Westwood Primary \nSchool in Greenwood, Arkansas. \n2. Despite objective evidence of injury and \nproviding medical and temporary total disability \nbenefits, the Respondents later denied \ncompensability of the Claimant’s right knee \ninjury. \n3. The Claimant contends she is owed medical \nbenefits for her right knee injury, including, but \nnot limited to, a total knee replacement. \n4. The Claimant contends she is owed \ntemporary total disability benefits from \nSeptember 8, 2020, to a date yet to be \ndetermined. \n5. Due to the controversion of entitled benefits, \nthe Respondents are obligated to pay [one] half \nof the Claimant’s attorney’s fees on both future \nand past indemnity benefits. (Lula L. Garrett v. \nSuperior Marketing Service, Full Commission \nOpinion filed November 5, 2001 (E903251)). \n6. Claimant reserves the right to raise additional \ncontentions at the hearing of this matter. \n \n  “Respondents contend that all appropriate benefits have been \npaid with regard to Claimant’s compensable knee injury sustained on \n9/13/19.  Dr. Steven Smith opined that Claimant reached MMI on 5/26/20, \nand Claimant was released to full duty with no permanency being assigned.  \nDr. Smith also confirmed that Claimant’s lateral meniscus was intact when \nhe did surgery on 3/18/20.  As such, Claimant’s need for treatment after \nthat date, if any, is due to a new tear or injury.  Additional medical treatment \nis no longer reasonable and necessary or associated with the 9/13/19 date \nof injury.  [With] regard to the statue [sic] of limitations, Claimant filed a \nForm C on 2/12/20, seeking only additional medical treatment.  The statute \n\nTIBBETTS – G906168                                                             12 \nof limitations has run on all other benefits, as the last medical and indemnity \nwere both paid in September of 2020.” \n  The parties agreed to litigate the following issues:  \n(1) Whether the Claimant is entitled to additional \nmedical treatment regarding her compensable \nright knee injury after Dr. Christopher Arnold’s \ninitial Change of Physician evaluation in \nSeptember 2020. \n \n(2) Whether the Claimant is entitled to temporary \ntotal disability benefits from September 8, 2020, \nto a date yet to be determined. \n \n(3) Respondent raised statute of limitations as \nan affirmative defense regarding indemnity \nbenefits. \n \n(4) Whether Claimant’s attorney is entitled to an \nattorney fee. \n \n After a hearing, an Administrative Law Judge filed an opinion \non November 15, 2022.  The Administrative Law Judge found: \n1.  The stipulations agreed to by the parties at \nthe pre-hearing conference conducted on May \n25, 2022, and contained in a Pre-hearing Order \nfiled May 25, 2022, are hereby accepted as fact. \n \n2.  The claimant has failed to prove by a \npreponderance of the evidence, that she is \nentitled to additional medical treatment \nregarding her compensable right knee injury \nafter Dr. Chris Arnold’s initial Change of \nPhysician evaluation in September 2020.  \n \n3. The claimant has failed to prove by a \npreponderance of the evidence that she is \nentitled to temporary total disability benefits from \n\nTIBBETTS – G906168                                                             13 \nSeptember 8, 2020, to a date yet to be \ndetermined. \n \n4.  The issue of statute of limitations raised by \nthe respondent in this matter is moot as the \nclaimant is unable to prove entitlement to any \nindemnity benefits at this time. \n \n5. The claimant has failed to prove that her \nattorney is entitled to an attorney’s fee in this \nmatter. \n \n The claimant appeals these findings to the Full Commission. \n II.  ADJUDICATION \n       A.  Additional Medical Treatment \n       An employer shall promptly provide for an injured employee \nsuch medical treatment as may be reasonably necessary in connection with \nthe injury received by the employee.  Ark. Code Ann. §11-9-508(a).  The \nclaimant bears the burden of proving that she is entitled to additional \nmedical treatment.  Dalton v. Allen Eng’g Co., 66 Ark. App. 201, 989 \nS.W.2d 543 (1999).  What constitutes reasonably necessary medical \ntreatment is a question of fact for the Commission.  Wright Contracting Co. \nv. Randall, 12 Ark. App. 358, 676 S.W.2d 750 (1984). \n  An employee is not required to prove that her compensable \ninjury is the major cause for the need for treatment unless she is seeking \npermanent benefits; when the employee has suffered a specific injury and \nis only seeking medical benefits and temporary total disability, the major-\ncause analysis is not applicable, and the employee need only show that the \n\nTIBBETTS – G906168                                                             14 \ncompensable injury was a factor in the need for additional medical \ntreatment.  Williams v. L & W Janitorial, Inc., 85 Ark. App. 1, 145 S.W.3d \n383 (2004). \n  The Full Commission finds that the treatment, including \nsurgical interventions performed by Dr. Arnold, was reasonably necessary.  \nThe claimant sustained a compensable right knee injury on September 13, \n2019.  The claimant testified that she had never experienced pain in her \nright knee prior to her workplace accident.  The claimant received \nconservative treatment and a right knee arthroscopy and resection of \nanteromedial plica prior to Dr. Smith’s determination that she had reached \nMMI on May 26, 2020.   \n  After the determination of MMI was reached, the claimant \ncontinued to experience pain and chose to change physicians from Dr. \nSmith to Dr. Arnold.  When Dr. Arnold first examined the claimant he noted \nthat the claimant continued to suffer from right knee pain, swelling, and \nlocking and diagnosed her with right knee chondromalacia.  Dr. Arnold \nrelated the claimant’s knee chondromalacia to her work accident, noting, \n“She had a work injury with a chondral defect medial femoral condyle grade \n3.”  In addition, Dr. Smith noted that the plica (which was treated as part of \nthe claimant’s compensable injury) was abrading the medial \nchondromalacia.  Additionally, Dr. Arnold indicates that the claimant’s need \n\nTIBBETTS – G906168                                                             15 \nfor additional treatment was caused by a meniscus tear and chondral \ndefect. \n  We also note that the record is void of evidence of any \nadditional significant accidents or injuries to the claimant’s right knee \nbetween May 26, 2020 (when Dr. Smith determined she was at MMI) and \nSeptember 8, 2020 (when she first saw Dr. Arnold).  Clearly, the claimant’s \ncompensable right knee injury was a factor in the need for additional \nmedical treatment.  \n  We are not unmindful of Dr. Schock’s opinion; however, we \nassess greater weight to the statements of Dr. Arnold who is the claimant’s \ntreating physician. \n  Based on the aforementioned, we find that the treatment \nprovided by Dr. Arnold was reasonably necessary and causally connected \nto the claimant’s September 13, 2019, work injury. \n  Therefore, the Full Commission finds that the claimant has \nproven by a preponderance of the evidence that she is entitled to the \nreasonable and necessary medical treatment provided in relation to her \ncompensable right knee injury which was provided by Dr. Arnold.  \n  B.  Additional Temporary Total Disability Benefits \n  Ark. Code Ann. §11-9-521 provides that for scheduled \ninjuries, an injured worker is entitled to temporary total benefits during the \nhealing period or until the employee returns to work.  It is not necessary for \n\nTIBBETTS – G906168                                                             16 \na claimant with a scheduled injury to prove that she is totally incapacitated \nfrom earning wages in order to collect temporary total disability benefits.  \nFendley v. Pea Ridge Sch. Dist., 97 Ark. App. 214, 245 S.W.3d 676 (2006).  \nRather, she is entitled to temporary total disability benefits during her \nhealing period or until she returns to work, whichever occurs first, \nregardless of whether she has demonstrated that she is actually \nincapacitated from earning wages.  Wheeler Const. Co. v. Armstrong, 73 \nArk. App. 146, 41 S.W.3d 822 (2001).  \n   “Healing period” means that period for healing of an injury \nresulting from an accident.  Ark. Code Ann. §11-9-102(12).  The healing \nperiod has not ended so long as treatment is administered for the healing \nand alleviation of the condition. J.A. Riggs Tractor Co. v. Etzkorn, 30 Ark. \nApp. 200, 785 S.W.2d 51 (1990); Mad Butcher Inc. v. Parker, 4 Ark. App. \n124, 628 S.W.2d 582 (1982). \n  The Full Commission finds that the claimant is entitled to \nadditional temporary total disability benefits.   In the present matter, the \nclaimant suffered a compensable injury to her right knee.  At the August 18, \n2022 hearing, the claimant testified that she was not working because she \nwas terminated from her job on September 8, 2020 and because, as she \nexplained, “I am still in a lot of pain.  I can hardly walk.  I can hardly get up.  \nI can hardly move.  I can hardly turn.  I can hardly bend.”  Additionally, there \n\nTIBBETTS – G906168                                                             17 \nis not a medical record from Dr. Arnold within the Commission’s record \nshowing that the claimant has reached MMI. \n  Since the claimant sustained a scheduled injury, remained \nwithin her healing period, and has not returned to work, the Full \nCommission finds that the claimant is entitled to additional temporary total \ndisability beginning on September 8, 2020, and continuing to a date yet to \nbe determined. \n  C. Statute of Limitations \n  The statute of limitations for workers’ compensation claims is \nset forth in A.C.A. §11-9-702 (a) as following: \n  A.C.A. §11-9-702(b) states, in pertinent part: \n \nIn cases in which any compensation, including \ndisability or medical, has been paid on account \nof injury, a claim for additional compensation \nshall be barred unless filed with the commission \nwithin one (1) year from the date of the last \npayment of compensation or two (2) years from \nthe date of the injury, whichever is greater. \n \n  In overruling Kirk v. Central States Manufacturing, 2018 Ark. \nApp. 78, the Arkansas Supreme Court held that under a plain reading of \nArk. Code Ann. § 11-9-702(b)(1), the statute of limitations on a request for \nadditional workers’ compensation benefits commences when the last \npayment, whether for disability or medical benefits, is made. Wynne v. \nLiberty Trailer, 2022 Ark. 65, 641 S.W.3d 621. \n\nTIBBETTS – G906168                                                             18 \n  Here, the claimant filed a Form C seeking additional medical \nexpenses on February 13, 2020.  The last payment for medical benefits \nwas made on September 22, 2020.  The claimant’s Form C was clearly filed \nwithin one year of the date that the last payment was issued.  Therefore, \nthe statute of limitations has not run on the claimant’s claim for indemnity \nbenefits as the respondents contend. \n       III. Conclusion     \n   Based on our de novo review of the entire record, the Full \nCommission finds that the claimant has proven by a preponderance of the \nevidence that she is entitled to reasonable and necessary medical \ntreatment provided in relation to her compensable right knee injury, which \nwas provided by Dr. Arnold and additional temporary total disability benefits \nbeginning on September 8, 2020, and continuing to a date yet to be \ndetermined.  The Full Commission further finds that the statute of limitations \nhas not run in this matter.  The claimant’s attorney is entitled to fees for \nlegal services in accordance with Ark. Code Ann. §11-9-715(a) (Repl. \n2012).   For prevailing on appeal to the Full Commission, the claimant’s \nattorney is entitled to an additional fee of five hundred dollars ($500), \npursuant to Ark. Code Ann. §11-9-715(b) (Repl. 2012). \n \n \n \n\nTIBBETTS – G906168                                                             19 \n IT IS SO ORDERED. \n \nSCOTTY DALE DOUTHIT, Chairman \n \n \n      ______________________________________ \n M. SCOTT WILLHITE, Commissioner  \n \n \n \n \nCommissioner Mayton dissents. \n \nDISSENTING OPINION \n  I must respectfully dissent from the Majority’s determination that the \nclaimant has met her burden of proving by a preponderance of the evidence \nthat she is entitled to additional medical treatment provided by Dr. Arnold. I \nmust further dissent from the Majority’s findings that the statute of \nlimitations for indemnity benefits was tolled by the February 12, 2020 Form \nAR-C requesting additional medical benefits and that the claimant is entitled \nto additional temporary total disability benefits beginning on September 8, \n2020 and continuing to a date to be determined. \n Our rules provide that the respondent must provide any medical \ntreatment \"as may be reasonably necessary in connection with the injury \nreceived by the employee.\" Ark. Code Ann. § 11-9-508(a). The claimant has \nthe burden of proving by a preponderance of the evidence that the \nadditional medical treatment requested was reasonable and necessary. \n\nTIBBETTS – G906168                                                             20 \nAmaya v. Newberry's 3N Mill, 102 Ark. App. 119, 282 S.W.3d 269 (2008). \n\"What constitutes reasonable and necessary treatment under this statute is \na question of fact for the Commission to decide.\" Id. The claimant’s \ncontention that the respondent carrier is responsible for the surgery and \nfollow-up treatment provided by Dr. Chris Arnold disregards the objective \nmedical findings found in the claimant’s September 17, 2019 and \nSeptember 18, 2020 MRIs. The 2019 MRI, as reported by Dr. Terry Clark, \nfound in relevant part: “1. No appreciable internal arrangement [sic] of the \nknee joint. 2. Small popliteal cyst posteromedially. 3. Thin zone of \nprepatellar fluid which may be prepatellar bursitis.” (Resp. Ex. 1, P. 1). This \nfinding was later confirmed by Dr. Steven Smith, who on March 18, 2020 \nperformed a right knee arthroscopy and resection of anteromedial plica. \n(Resp. Ex. 1, Pp. 4-6). Dr. Smith’s postoperative diagnosis was consistent \nwith the September 2019 MRI—plica syndrome and a superficial grade 3 \nchondromalacia of medial femoral condyle. Id. Dr. Smith’s operative report \nstated that the claimant’s “Medial meniscus was normal. ACL and PCL \nnormal. Lateral compartment normal.” Id. On May 26, 2020, the claimant \nreturned to Dr. Smith complaining of some achiness in her knee, but Dr. \nSmith opined that “overall her knee looks quite good. I am going to release \nher to regular duty. I believe she is at MMI. She has no permanent \nimpairment.” (Resp. Ex. 1, P. 8). \n\nTIBBETTS – G906168                                                             21 \n The claimant later obtained a change of physician order granted by \nthe Commission and began treating with Dr. Chris Arnold on September 8, \n2020. Dr. Arnold obtained a second MRI, and when compared with the \nSeptember 17, 2019 MRI, Dr. William Hocott found a “[t]ear of the lateral \nmeniscus which is a progressive finding from the previous year” and \n“[d]egenerative changes within the medial meniscus with no definite tear.” \n(Clt. Ex. 1, P. 116). Pursuant to these findings, Dr. Arnold performed a right \nknee arthoscopy on the claimant on October 23, 2020 and later a total right \nknee replacement on September 24, 2021. (See Clt. Ex. 1, Pp. 131, 159-\n160). However, the findings of the 2020 MRI are in contradiction to the 2019 \nMRI as well as Dr. Arnold’s surgical findings. The claimant’s adjuster, Misty \nThompson, obtained an additional opinion from Dr. Ethan Schock, an \northopedic surgeon, who reviewed the claimant’s records, MRIs, and \nsurgical reports to determine whether in his expert opinion the treatment \nafter Dr. Smith’s MMI date of May 26, 2020 was reasonable and necessary. \n(See Resp Ex. 1, Pp. 15-17). Dr. Schock’s report references Dr. Arnold’s \nOctober 23, 2020 report, not submitted into evidence by either party, \nstating, “[o]perative note describes grade 3 patellofemoral, grade 3 medial \nfemoral condyle degenerative changes, ‘extensor mechanism \nmalalignment’ and no evidence of tear of the medial or lateral meniscus.” \n(Resp. Ex. 1, Pp. 16-17). Dr. Schock opines that “the patient’s mechanism \nof injury, description of symptoms, radiologic studies, and interoperative \n\nTIBBETTS – G906168                                                             22 \nfindings do not suggest a reasonable causality and necessary association \nfor the orthopedic treatments, office visits, radiologic studies (MRI, x-ray, \nultrasound), or surgical intervention (second arthroscopic procedure, total \nknee arthroplasty, and manipulation under anesthesia).” Id. \n It is within the Commission's province to reconcile conflicting \nevidence, including the medical evidence, and to determine the true facts. \nHernandez v. Wal-Mart Assocs., 2009 Ark. App. 531, 337 S.W.3d 531 \n(2009); Pyle v. Woodfield, Inc., 2009 Ark. App. 251, 306 S.W.3d 455 \n(2009). Further, the Commission is entitled to review the basis for medical \nopinions in deciding the weight and credibility of the opinion and medical \nevidence. Aegon Ins. United States v. Durham-Gilpatrick, 2010 Ark. App. \n826, 378 S.W.3d 773, (2010). In the present case, it is clear that the weight \nof the medical evidence proves that the claimant’s surgical interventions \nprovided by Dr. Arnold were not reasonably necessary or related to her \ncompensable September 13, 2019 right knee injury. The findings of the \nSeptember 2019 MRI were unequivocal in showing that there was no lateral \nor medial meniscus tear. The operative report of Dr. Smith and the \noperative report of Dr. Arnold, as provided by Dr. Schock, support the fact \nthat the claimant never suffered a meniscus tear of any sort. The 2020 MRI \nreading provided by Dr. Hocott is an outlier and does not comport with the \nfacts as reasonably interpreted. Dr. Arnold’s treatment and two surgeries, \nincluding a total knee replacement, were based on an MRI reading by Dr. \n\nTIBBETTS – G906168                                                             23 \nHocott which was clearly in error and not supported by any of the surgical \nfindings. \n “In order to be entitled to temporary total disability benefits, a \nclaimant must prove by a preponderance of the evidence that he remained \nin his healing period and suffered a total incapacity to earn wages.” \nArkansas State Highway & Transp. v. Breshears, 272 Ark. 244, 613 S.W.2d \n392 (1981). In the present case, the claimant’s healing period ended on \nMay 26, 2020 when released at MMI by Dr. Smith. As any medical \ntreatment after that date was not causally related to her September 2019 \ninjury, she is not entitled to benefits for any disability arising from that \ntreatment. \n As a secondary matter, the claim for additional indemnity benefits is \nbarred by the statute of limitations. The claimant submitted a form AR-C on \nFebruary 12, 2020, requesting only additional medical benefits. The \nclaimant made no written request for additional indemnity benefits until her \nResponse to the Prehearing Questionnaire was filed on April 26, 2022. In \ncases in which any compensation, including disability or medical, has been \npaid on account of injury, a claim for additional compensation shall be \nbarred unless filed with the commission within one (1) year from the date of \nthe last payment of compensation or two (2) years from the date of the \ninjury, whichever is greater. Ark. Code Ann. § 11-9-702(b)(1). A claim for \nadditional compensation must specifically state that it is a claim for \n\nTIBBETTS – G906168                                                             24 \nadditional compensation. Documents which do not specifically request \nadditional benefits shall not be considered a claim for additional \ncompensation. Ark. Code Ann. § 11-9-702(c). While certain claims may toll \nthe running of the statute of limitations, such claims cannot revive other \nforms of compensation once the statute has run. Flores v. Walmart \nDistribution, 2012 Ark. App. 201 (2012). The Arkansas Court of Appeals \nhas made it clear that the statute of limitations can run on a claim for \nadditional indemnity benefits and not have run on additional \nmedical benefits. Id. Our rules are clear that tolling the statute of limitations \nfor additional medical benefits does not inherently toll the statute with \nregard to indemnity benefits if additional indemnity benefits are not \nspecifically requested. I believe that the statue of limitations has expired for \nadditional indemnity benefits due to claimant’s failure to submit a written \nrequest, by way of a Form C or otherwise, for additional indemnity benefits \nuntil April of 2022. For this reason, I would find the claimant is not entitled to \nany additional indemnity benefits resulting from her February 12, 2020 \ninjury. \nFor the reasons stated above, I respectfully dissent. \n                                                                      \n \n     \nMICHAEL R. MAYTON, Commissioner","preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. G906168 GAIL TIBBETTS, EMPLOYEE CLAIMANT WESTWOOD PRIMARY SCHOOL, EMPLOYER RESPONDENT ARKANSAS SCHOOL BOARDS ASSOCIATION., CARRIER/TPA RESPONDENT OPINION FILED JUNE 13, 2023 Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas. Clai...","fetched_at":"2026-05-19T22:29:46.325Z","links":{"html":"/opinions/full_commission-G906168-2023-06-13","pdf":"https://labor.arkansas.gov/wp-content/uploads/Tibbetts_Gail_G906168_20230613.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/"}}