{"id":"full_commission-H000250-2024-05-28","awcc_number":"H000250","decision_date":"2024-05-28","opinion_type":"full_commission","claimant_name":"Darryl Payne","employer_name":"Phillips Community College","title":"PAYNE VS. PHILLIPS COMMUNITY COLLEGE AWCC# H000250 MAY 28, 2024","outcome":"unknown","outcome_keywords":[],"injury_keywords":["knee","fracture","back","ankle","hip","sprain"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/Payne_Darryl_H000250_20240528.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Payne_Darryl_H000250_20240528.pdf","text_length":46316,"full_text":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n \nCLAIM NO.  H000250  \n \nDARRYL G. PAYNE, \nEMPLOYEE \n \nCLAIMANT \nPHILLIPS COMMUNITY COLLEGE,  \nEMPLOYER \n \nRESPONDENT \nPUBLIC EMPLOYEE CLAIMS DIVISION, \nINSURANCE CARRIER/TPA \nRESPONDENT \n  \n      \nOPINION FILED MAY 28, 2024 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant appeared pro se. \n \nRespondents represented by the HONORABLE ROBERT H. \nMONTGOMERY, Attorney at Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Reversed in part, affirmed in part. \n \n \n OPINION AND ORDER \nThe claimant appeals an administrative law judge’s opinion filed \nNovember 14, 2023.  The administrative law judge found that the claimant \nfailed to prove he was entitled to additional medical treatment.  After \nreviewing the entire record de novo, the Full Commission finds that \nadditional medical treatment to be provided to the claimant by Dr. Busby is \nreasonably necessary in accordance with Ark. Code Ann. §11-9-\n508(a)(Repl. 2012).       \nI.  HISTORY \n\nPAYNE - H000250  2\n  \n \n \n The testimony of Darryl Payne, now age 55, indicated that he \nbecame employed with the respondents, Phillips Community College, in \nabout January 2019.  Mr. Payne testified that he had been employed as a \ncustodian for the respondents.  The parties stipulated that the employee-\nemployer relationship existed on January 7, 2020.  The claimant testified on \ndirect examination: \n  Q.  You got hurt on January the 7\nth\n of 2020? \n  A.  Yes.   \n  Q.  Tell the judge what happened.   \nA.  I was asked to get rid of some computer monitors that was \nout in the hallway.   \n  Q.  These were in boxes, right? \nA.  No, I was putting them in the boxes....They was pretty \nmuch in the way of the doorway of the students going in, so it \nwas probably maybe a hundred monitors....I came down the \nsteps with the box in front of me and that’s when the accident \nhappened.... \nQ.  You fell? \nA.  Yes.   \nQ.  And you injured –  \nA.  My left ribs, quads, tender loin, patella rupture or \nsomething like that.   \n \n The parties stipulated that the claimant “sustained a compensable \nwork-related injury to his left leg” on January 7, 2020.  According to the \nrecord, an x-ray of the claimant’s left knee was taken on January 7, 2020: \n  INDICATION:  Left knee pain with Trauma/injury.... \nFINDINGS:  No acute fracture or dislocation is appreciated.  \nNo significant suprapatellar bursal effusion is identified.  Soft \ntissue irregularity along the medial aspect of the anterior lower \nleg noted.   \nIMPRESSION:  No acute fracture or dislocation is \nappreciated.  No significant suprapatellar bursal effusion is \n\nPAYNE - H000250  3\n  \n \n \nidentified.  Soft tissue irregularity along the medial aspect of \nthe anterior lower leg noted.   \n \n The claimant’s testimony indicated that he underwent surgery by Dr. \nPhillip A. Smith on February 13, 2020.  An MR of the claimant’s lower \nextremity was taken on July 21, 2020 with the impression, “Prior surgical \nrepair of the quadriceps tendon which appears intact.  Focal area of \nchondromalacia involving the medial facet of the patella.”  Dr. Smith \nplanned on or about November 10, 2020, “He has met MMI.  He can return \nto work based on the medium work classifications.  We are going to get him \na knee brace today.  He will follow-up as needed.  I told him he needed to \ncontinue to focus on quad strengthening.  He also needs to focus on low \nimpact exercise and weight loss.” \n Dr. Smith reported on November 29, 2020: \nDarryl Payne underwent a left quad tendon repair on \n2/13/2020 for a work related injury.  He continued to complain \nof pain and was slow to progress with physical therapy.  \nSubsequent MRI and ultrasound showed no evidence of \nretear.  He underwent an FCE which placed him on \npermanent restrictions.  Based on the evaluation of \npermanent impairment, 4\nth\n Edition, he sustained a 5% whole \nperson or a 12% lower impairment rating based on grade 4 \nmuscle weakness to the left knee (Table 38 and 39 page 77).  \nPlease call with any questions or concerns.   \n \n The parties stipulated that “in November 2020, Claimant was \nassigned a twelve percent (12%) impairment rating to the left leg, which \nwas accepted and is currently being paid by Respondents.” \n\nPAYNE - H000250  4\n  \n \n \n Dr. Smith performed a second procedure on February 24, 2021:  “1.  \nOpen exploration and evaluation of left quad tendon.  2.  Repair of \ndiagnostic tenotomy quad tendon.”  The pre- and post-operative diagnosis \nwas “1.  Left knee pain following quad tendon repair.”       \n The parties stipulated that the claimant “reached MMI on or about \nJuly 13, 2021.” \n The claimant participated in a Functional Capacity Evaluation on \nAugust 13, 2021:  “The results of this evaluation indicate that a reliable \neffort was put forth, with 52 of 55 consistency measures within expected \nlimits....Mr. Payne completed functional testing on this date with reliable \nresults.  Overall, Mr. Payne demonstrated the ability to perform work in the \nMEDIUM classification of work[.]”   \n Dr. Smith reported on September 5, 2021: \nDarryl Payne sustained a left quad tendon rupture in [early] \nJanuary of 2020.  He was seen in clinic on 1/28/2021 \napproximately 3 weeks after his injury and determined to have \na left quad tendon rupture.  He underwent repair on \n2/13/2020.  He continued to have pain over the following year \ndespite extensive physical therapy.  He underwent exploration \nof the tendon on 2/24/2021 which showed complete healing.  \nHe was placed back in therapy but continue (sic) to complain \nof pain and weakness.  He reached MMI on 7/13/2021.  He \nwas sent for an FCE which was reliable and placed him in the \nmedium work classification.  Based on the guides to the \nevaluation of permanent impairment, 4\nth\n edition, he sustained \na 20% whole person impairment due to his routine use of a \ncane for ambulation (p. 76, table 36).  Please call with any \nquestions or concerns.   \n \n\nPAYNE - H000250  5\n  \n \n \n The parties stipulated that “in September 2021, Claimant was \nassigned a twenty percent (20%) whole body impairment rating, which was \nnot paid by Respondents.” \n Dr. Smith reported on October 15, 2021: \nDarryl Payne underwent a left quadriceps tendon repair on \nFebruary 13, 2020.  He had difficulty following surgery and \nwas slow to recover.  He underwent an exploration of his \nquadriceps tendon on February 24, 2021 which showed \nhealing of the tendon.  He reached MMI on July 13, 2021.  He \nunderwent a functional capacity exam which placed him at the \nmedium work classification as defined by the US Department \nof Labor.  Based on his range of motion he will have a 4% \nwhole person impairment or a 10% lower extremity \nimpairment (table 41, page 78).  Please call with any \nquestions or concerns. \n \n The parties stipulated that “in October 2021, Claimant was assigned \nan additional ten percent (10%) to the left lower extremity, which is also \ncurrently being paid by Respondents.” \n The claimant treated at Helena Regional Medical Center on October \n28, 2021:   \n52-year-old male with complaint of standing outside his home \nat which time his left leg gave out.  Patient fell backwards \nhitting the back of his head on concrete.  Patient states he \nhad momentary loss of consciousness.  Now with complaint of \nhaving a severe diffuse throbbing headache.  Patient also with \ncomplaint of pain in his left ankle, left hip, and lower left back.  \nPatient states he has had recent tendon surgery on his left \nleg....There is no tenderness or swelling of the left knee.... \n \n\nPAYNE - H000250  6\n  \n \n \n The diagnosis on October 28, 2021 was “Fall on same level, \nunspecified; Laceration without foreign body of scalp; Acute post-traumatic \nheadache; Sprain of ankle; Contusion of left hip.”   \n A pre-hearing order was filed on January 26, 2022.  The claimant \ncontended, “(a)  That he is permanently and totally disabled as a result of \nhis work injuries; (b)  That he is entitled to additional PPD based on 20% \nwhole body impairment; (c)  That the benefits set forth above have been \ncontroverted and thus undersigned counsel is entitled to maximum statutory \nattorney’s fees.  All other issues are reserved.”   \n The respondents contended, “Respondents contend that the \nclaimant has received all reasonable and necessary medical treatment for \ncompensable left knee injury.  After the January 7, 2020 incident the \nclaimant came under the care of Dr. Philip A. Smith.  The claimant \nunderwent a left quadriceps tendon repair on February 13, 2020.  He \nunderwent an exploration of his quadriceps tendon on February 24, 2021 \nand was found to be at MMI on July 13, 2021.  The claimant was assigned \nimpairment ratings of 12% to the lower extremity on 11/29/2020, and an \nadditional 10% to the lower extremity on 10/15/2021.  The claimant is \ncurrently receiving permanent partial disability benefits in payment of the \nassigned impairment ratings.”   \n\nPAYNE - H000250  7\n  \n \n \n The respondents contended, “The claimant sustained a \ncompensable injury to his left lower extremity.  As the claimant contends he \nsustained injuries to his lower extremities, the limitations expressed in Ark. \nCode Ann. §11-9-521(g) are applicable.  The Respondents contend that the \nclaimant is not permanently and totally disabled.  The claimant underwent a \nfunctional capacity examination which placed him at the MEDIUM work \nclassification as defined by the U.S. Department of Labor.  None of the \nclaimant’s physicians have indicated that the claimant is permanently and \ntotally disabled.  The claimant has also been evaluated for vocational \nrehabilitation possibilities by Heather Taylor, MRC, CRC.  The Respondents \ncontend that the claimant is not permanently and totally disabled and that \nhe is receiving and has received all appropriate indemnity benefits relative \nto his compensable scheduled lower extremity injury.”   \n The parties agreed to litigate the following issues: \n  1.  Permanent total disability, or in the alternative, wage loss.   \n2.  PPD based on twenty percent (20%) whole body \nimpairment. \n  3.  Attorney’s fees. \n  4.  All other issues are reserved. \n \n A hearing was held on March 30, 2022.  The claimant testified on \ndirect examination: \nQ.  You told me before the hearing that you wanted the judge \nto see your leg.  Do you want to do that? \nA.  Yes, please....I got on ice, so I got to pull this off.  Okay.  \n(Witness pulling up pants leg to show his knee).  This is where \n\nPAYNE - H000250  8\n  \n \n \nI’m having my problems at...it’s something going on right \nhere.  (Indicating left knee)....And they had stated that my \npatella was something defect (sic) in my records, and I asked \nthe doctor about it and he – that’s when the second surgery \nwas advised to me, but on this leg, you can see the \ndifference.  (Pulled up pants leg to compare both knees).... \nQ.  What’s your physical condition now?  You showed the \njudge your leg, other than the appearance of your leg and the \npain that you’ve described, what’s your physical condition like \nnow? \nA.  Just swelling, throbbing, weakness.  My equilibrium is off, \nbalance.  It’s just my leg is giving me problems.   \n \n An administrative law judge filed an opinion on June 22, 2022.  The \nadministrative law judge found, among other things, that the claimant “failed \nto prove by a preponderance of the evidence that he has been rendered \npermanently and totally disabled as a result of his compensable left lower \nextremity injury.  Alternatively, Claimant has failed to prove that he is \nentitled to wage loss for his scheduled injury to the left lower extremity.”  \nThe administrative law judge found that the claimant “failed to prove by a \npreponderance of the evidence that he is entitled to a twenty percent (20%) \npermanent impairment rating to the body as a whole.”   \n There was no appeal of the administrative law judge’s opinion filed \nJune 22, 2022, and the parties have stipulated, “The previous decision in \nthis matter is binding on this proceeding under the Law of the Case \nDoctrine.”   \n Dr. Charles E. Pearce reported on December 20, 2022: \n\nPAYNE - H000250  9\n  \n \n \nThe patient is a 53-year-old former employee of Phillips \nCounty Community College as a janitor and maintenance \nperson who injured his left knee when he fell down about 7-8 \nsteps while [carrying] computers.  He apparently sustained a \ndirect blow.  He was evaluated locally and subsequently had \nMRI scan of his left knee on January 15, 2020.  By report this \nshowed soft tissue edema in the suprapatellar bursa and \nsuspected partial tear of his quadriceps tendon.  He was then \nseen by Dr. Smith at Ortho Arkansas and had open repair of \nhis quadriceps tendon on February 13, 2020.  The patient had \na relatively uneventful postoperative course initially but was \nunable to return to normal activities because of ongoing pain \nand weakness about his knee leading to a follow-up MRI scan \non July 21, 2020 showing the repaired tendon to be intact.  \nThere was chondromalacia of the patella noted.  Despite time \nand modification activities the patient had continued pain \nleading to a 2\nnd\n surgery on February 24, 2021 by Dr. Smith \nwhich was opened (sic) exploration of the quadriceps tendon \nwhich appeared to be intact.  The most recent MRI scan was \non October 18, 2022 and is here for my review.  There were \nreports of subtle meniscal tears.  However I am not sure that \nthese would amount to any type of need for intervention and I \nam doubtful they are causing his current symptoms.  He was \nfound to have moderate chondromalacia of his patella \nespecially the medial facet.  He was then seen by Dr. Busby \nfor a 2\nnd\n opinion on November 18, 2022 and she opined that a \nknee arthroscopy with chondroplasty and meniscectomy was \nindicated.  She also stated that his major issue is quadriceps \nweakness that was relatively significant.  I agree with that \nstatement.  Currently he is using a cane in his right hand [to] \nambulate he has not been able to return to any type of gainful \nemployment since his injury and reports multiple falls.  This is \nbecause of leg weakness and giving way.  He had been \nemployed at this job for about a year before his injury.  He \ndoes not have a history of prior knee problems.  The patient \ntells me that he has had an FCE performed and in fact this \nhad been ordered.  I do not have those results.  I would like to \nlook at those before I make final recommendations for him.  \nHe does take ibuprofen for pain.  He recently has been given \nhydrocodone as well.... \nleft KNEE:  There is a well-healed midline incision.  The \npatellar and quadriceps tendon by palpation are intact.  He \n\nPAYNE - H000250  10\n  \n \n \nhas the ability to initiate isometric quads but cannot maintain a \nstraight leg raise or against resistance.  He complains of pain \nand crepitation about the knee and he in fact does have \nmoderate patellofemoral crepitation through range of motion.  \nHis motion is 0 to about 100 degrees....There is no collateral \nligament or AP instability of the knee.  Of significance \nmeasuring his thigh circumference 10 centimeters proximal to \nthe superior patellar pole he is 2 centimeters smaller on the \nleft compared to the right.   \nIMAGING:  X-rays ordered and interpreted by me he has \ndisuse atrophy of the patella.  The patellofemoral joints are \nnot well visualized because the patient is unable to flex to the \nappropriate level for those views.   \nIMPRESSION:  Post open left knee quadriceps tendon repair \nwith marked quadriceps weakness.  He has underlying \npatellofemoral chondromalacia most likely as well.  Doubt \nmeniscal pathology as etiology of pain.   \nPLAN:  1.  The patient is not at maximal medical improvement \npending my review of FCE that was completed.  Patient says \nthat he did that test.  We will try to get a copy of the results. \n2.  At most he can do a sitting job only. \n3.  He has previously been given an impairment rating based \non weakness of the leg which appears to be appropriate.   \n4.  There are no other diagnostic tests and/or surgery that I \ncan see that are indicated at this point. \n5.  Once I receive the FCE will make further recommendation \nregarding need for further intervention and care.  These \nstatements are made within a degree of medical certainty. \nThere is an addendum being dictated on December 30, 2022:  \nI have received and reviewed the functional capacity \nevaluations completed by this patient on August 13, 2021 and \nNovember 3, 2021.  The patient gave a valid effort with both \ntests and for both tests he was placed in the medium category \nof work as outlined by the department of labor.  This allows \noccasional lifting from 21-50 lbs, frequent lifting 11-20 lbs and \nconstant lifting 1-10 lbs.  These are his restrictions.  He has \npreviously been given impairment ratings and no additional \nimpairment is indicated.  There is no indication for further \ndiagnostic or treatment modalities for him.  His main deficit is \nrelated to decreased strength in the leg which is fully under \nhis own control in my opinion.  Arthroscopy previously \ndiscussed by another physician would be of little benefit for \n\nPAYNE - H000250  11\n  \n \n \nhim.  These statements are made within a degree of medical \ncertainty.   \n \n Rhonda Murphy, Assistant Claims Determination Manager, Arkansas \nInsurance Department, Public Employee Claims Division, corresponded \nwith Fenter Physical Therapy Center on January 18, 2023:  “I am \nauthorizing the following treatment:  X   Authorizing (3x4 weeks) of physical \ntherapy visits for (Left Quad Strengthening).”   \nA pre-hearing order was filed on May 25, 2023.  According to a \nquestionnaire filed by the claimant on March 30, 2023, the claimant \nappeared to contend that he was entitled to “Medical attention and if I get a \njob or compensation.”   \nThe respondents contended, “Respondents contend that the \nclaimant has received all reasonable and necessary medical treatment for \nhis compensable left lower extremity injury.  After the January 7, 2020 \nincident the claimant came under the care of Dr. Philip A. Smith.  The \nclaimant underwent a left quadriceps tendon repair on February 13, 2020.  \nHe underwent an exploration of his quadriceps tendon on February 24, \n2021 and was found to be at MMI on July 13, 2021.  The claimant was \nassigned impairment ratings of 12% to the lower extremity on 11/29/2020, \nand an additional 10% to the lower extremity on 10/15/2021.  The \nrespondents accepted and have paid PPD benefits relative to the assigned \nimpairment ratings.  A hearing was held in this claim on March 30, 2022 \n\nPAYNE - H000250  12\n  \n \n \nand an Opinion issued on June 22, 2022 by Administrative Law Judge Katie \nAnderson.  After a review of the evidence ALJ Anderson determined that \nthe claimant was not permanently and totally disabled, he was not entitled \nto any wage-loss disability, and he was not entitled to PPD benefits for a \n20% whole body impairment rating.  The issues and findings from that \nhearing are now res judicata and the law of the case.” \nThe respondents contended, “The claimant was granted a Change of \nPhysician to Dr. D’Orsay Bryant on July 18, 2022.  The respondents have \npaid for an evaluation of the claimant by Dr. Bryant.  The claimant has \nrecently undergone physical therapy treatment at the respondents’ \nexpense.  The Respondents contend that the claimant is not permanently \nand totally disabled and that he is receiving all appropriate indemnity \nbenefits relative to his compensable scheduled lower extremity injury.”       \nAccording to the pre-hearing order, the parties agreed to litigate the \nfollowing issues: \n1.  Whether Claimant is entitled to additional treatment of his \nstipulated compensable left lower extremity injury. \n2.  Whether Claimant is entitled to temporary total disability \nbenefits.  All other issues have been reserved.   \n \n The respondents’ attorney examined the pro se claimant at a \ndeposition taken June 20, 2023: \nQ.  I’m looking at a report, Darryl, from December of last year \nwhere you have been to see a Dr. Charles Pearce at UAMS in \nLittle Rock.  Is that right? \n\nPAYNE - H000250  13\n  \n \n \nA.  Yes, sir.... \nQ.  How did that appointment with Dr. Pearce go?  Do you \nremember? \nA.  I guess fine.  I mean, he checked me out.... \nQ.  And Dr. Pearce, at least in December of last year, I think \nhe says here – and I’ll just ask you if you remember this.  He \nsaid, “There are no other diagnostic tests and/or surgery that I \ncan see that are indicated at this point.”  Do you remember \nDr. Pearce telling you that he didn’t think you needed any \nsurgery? \nA.  Yes. \nQ.  Okay.  Is that the only time you’ve seen Dr. Pearce? \nA.  Yes.  And it’s workers’ compensation’s doctor.   \nQ.  Okay.  And so after you saw him – and that was in \nDecember of last year.  So after you saw Dr. Pearce back \nthen in December of last year, Darryl, did you see any other \northopedic doctors? \nA.  Yes. \nQ.  Okay.  Who did you see after Dr. Pearce? \nA.  Susan Busby before Dr. Pearce.   \nQ.  Okay.  Dr. Susan Busby? \nA.  Yes.  She’s in Forrest City, Arkansas. \nQ.  Okay.  And how was it that you ended up going to see Dr. \nBusby? \nA.  From my PCP.   \nQ.  Okay.  And I don’t know if I have any reports from Dr. \nBusby, but can you let me know what did she tell you and \nwhat did she suggest for you?  Do you remember? \nA.  Knee scope. \nQ.  Like, a laparoscopic knee surgery? \nA.  Yes, sir.   \nQ.  Okay.  And what – is that something that – did you talk to \nthe workers’ compensation people about that? \nA.  Yes.   \nQ.  And what did they tell you about the possibility of a knee \nsurgery? \nA.  Well, I contacted Rhonda Murphy, and she said that it \ndoesn’t – my meniscus tears and whatnot don’t fall under \nworkers’ compensation, only my quad.   \nQ.  Okay.  And I guess you’ve not had any kind of knee \nsurgery up until now.  Is that correct? \nA.  No.... \n\nPAYNE - H000250  14\n  \n \n \nQ.  And is it your thinking that you would like to have workers’ \ncompensation pay for that knee surgery? \nA.  Yes. \nQ.  Okay.  So besides Dr. Busby, and we talked about Dr. \nPearce, I know at one point – this was in August of last year.  \nYou saw a Dr. D’Orsay Bryant down in El Dorado.  Is that \ncorrect? \nA.  Yes.  COP, that’s my change of physician.   \nQ.  Right.  And so besides Dr. Pearce, Dr. Bryant, and Dr. \nBusby, have there been any other, let’s say, orthopedic \ndoctors that have seen you for your leg or knee or any of that \nproblem? \nA.  No.... \nQ.  Now, as we’re talking here today, you’ve already \nmentioned that you’re interested in the prospect of some kind \nof a knee surgery.  Is that correct? \nA.  Yes.   \nQ.  So help me understand how that came about, where it \nlooks like the injury was initially to the quadriceps tendon.  \nCorrect? \nA.  Correct.   \nQ.  And now, three-and-a-half years later, we’re talking about \ntrying to get knee surgery on your knee.  Kind of tell me how \nthat injury from the day you got hurt until now, how has that \nprogressed or changed or somehow or another affected your \nknee? \nA.  Well, first of all, if you look at the – it was stated when I \nfirst initially fell, it was a contusion to my hip and my knee.... \nQ.  And so help me – I mean, if I went from there, how does \nthat lead us to today, where you’re asking for surgery on that \nknee? \nA.  Well, I’ve had several falls and meniscus tears.  It’s in \nSusan Busby’s report, and my MRI states it.... \nQ.  What kind of issues, if any, are you having with your knee \nthese days? \nA.  Buckling.... \nQ.  And at the hearing we’ve got scheduled in your case \ncoming up next month, I guess, two issues.  One’s going to be \nwhether or not you’re entitled to additional medical treatment \nfor your left leg injury.  And so you’ve told me this morning \nthat Dr. Busby, I think, has recommended a knee surgery for \nyou.  Is that right? \n\nPAYNE - H000250  15\n  \n \n \nA.  Yes.   \nQ.  Is that the medical treatment that you’re seeking at this \npoint? \nA.  Chronic joint pain in my patella, but she spoke of a few \nthings.   \nQ.  Okay.  Tell me what she spoke of, just so I know. \nA.  Meniscus tears from my MRI, patella – she stated that my \npatella joint wasn’t observed at the time of my surgery.  It’s \nsomething with my patella once again.   \nQ.  Okay.  And so with the meniscus tear issue and then this \npatella issue, is it your understanding that Dr. Busby wants to \ndo – or some doctor would want to do some kind of surgery to \nfix that? \nA.  Yes, sir.... \nQ.  When was the last time you were at Fena Physical \nTherapy for physical therapy?  Do you happen to know? \nA.  Months ago.   \nQ.  Okay.  And how did it come about that physical therapy \nstopped?  Did you decide not to go back? \nA.  Workers’ compensation only paid for six weeks.   \nQ.  Okay.  Did the six weeks that you went to physical therapy \nseem to help your condition? \nA.  Not at all.... \nQ.  I guess I want to make sure, too, that I understand all of \nthis right, Darryl.  Because when we started a little while ago, I \nasked you about this report from Dr. Pearce from December \nof last year, about six months ago, where he says in this \nreport, “There are no other diagnostic tests or surgery that I \ncan see that are indicated at this point.\"  That's what Dr. \nPearce said six months ago.  So is that somehow different \nnow? \nA.  Before Dr. Pearce, once again, it was Ms. Busby.  So I \nwent to Ms. Busby first, then workers’ compensation sent me \nto an independent medical examiner, Dr. Pearce, when I \nstarted calling Rhonda on a daily basis.   \nQ.  Okay. \nA.  She sent me to the IME doctor, Dr. Pearce.   \nQ.  All right. \nA.  Once Dr. Pearce got a note of Ms. Busby’s information – \nfrom Dr. Pearce, I went back to Ms. Busby.  That’s the last \nfollow up.   \nQ.  Okay. \n\nPAYNE - H000250  16\n  \n \n \nA.  Do you mind – can I show you? \nQ.  Show me what? \nA.  Ms. Busby’s report. \nQ.  Sure, please....We took a quick break there, and you \nshowed me what looks to be a portion of a report from Dr. \nBusby, that looks to be dated November 9\nth\n, 2022.  Correct? \nA.  I have the whole report if you want it.   \nQ.  Yeah.  I guess, for purposes of today, we can agree you \nsaw Dr. Busby on November the 9\nth\n? \nA.  Yes, sir. \nQ.  Then workers’ compensation ended up getting you to Dr. \nPearce, who then saw you on December 20\nth\n, 2022, about six \nweeks later.  Correct? \nA.  Correct.   \nQ.  Okay.  So Darryl, let me ask you this.  We’re here today \ntalking about surgery for your knee, which you’ve – as I \nunderstand it, you would like to have that performed.   \nA.  Please.... \nQ.  So that’s one of the issues we’ll talk about, I guess, next \nmonth at the hearing is additional medical treatment for you. \nA.  Yes.... \nQ.  Do you know if Medicaid would pay for a knee surgery for \nyou? \nA.  Well, I let my PCP know, and she’s saying that it’s a \nworkers’ compensation case.  So everywhere I go, I get \ndenied, even when I try to go to any referral.  Nobody wanted \nto take on my workers’ compensation, so that was my whole \nproblem when I addressed Philip Hood.  I contacted him and \ncomplained that I could not get any type of treatment because \nI was on workers’ compensation.  So everybody ignores my \nknee.  But Medicaid pays for everything else. \n \n A hearing was held on August 17, 2023.  At that time, the following \ncolloquy took place: \nMR. MONTGOMERY:  I agree that the employer-employee-\ncarrier relationship existed on or about January 7, 2020, when \nthe claimant sustained a compensation (sic) work-related \ninjury to his left leg.  I have written, and I believe I told Judge \nFine on the phone, and I think we should add a comma and \n\nPAYNE - H000250  17\n  \n \n \nadd the words “specifically a left quadriceps tendon injury,” \nokay?  So that would be one addition I would ask for.... \nJUDGE HOWE:  So, Mr. Payne, do you understand and agree \nwith that? \nCLAIMANT:  That it’s a left quadriceps –  \nJUDGE HOWE:  Quadriceps injury, that that is the injury that \noccurred on that date? \nCLAIMANT:  Yes.   \nJUDGE HOWE:  Okay.  So we can stipulate to that.  The \nrecord will be reflective of that.   \n \n The pro se claimant attempted to introduce into the record the results \nof MRI testing ordered by his primary care physician.  The respondents \nobjected to introduction of the medical evidence, and the administrative law \njudge sustained the objection without allowing the claimant to proffer the \nevidence.     \nAn administrative law judge filed an opinion on November 17, 2023.  \nThe administrative law judge found that the claimant failed to prove he was \nentitled to additional medical treatment or additional indemnity benefits.  \nThe administrative law judge therefore denied and dismissed the claim.  \nThe claimant appeals to the Full Commission.       \nII.  ADJUDICATION \n The employer shall promptly provide for an injured employee such \nmedical treatment as may be reasonably necessary in connection with the \ninjury received by the employee.  Ark. Code Ann. §11-9-508(a)(Repl. 2012).  \nThe employee has the burden of proving by a preponderance of the \nevidence that medical treatment is reasonably necessary.  Stone v. Dollar \n\nPAYNE - H000250  18\n  \n \n \nGeneral Stores, 91 Ark. App. 260, 209 S.W.3d 445 (2002).  Preponderance \nof the evidence means the evidence having greater weight or convincing \nforce.  Metropolitan Nat’l Bank v. La Sher Oil Co., 81 Ark. App. 269, 101 \nS.W.3d 252 (2003).  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 administrative law judge found in the present matter, “3.  The \nclaimant failed to establish by a preponderance of the evidence that he is \nentitled to additional medical treatment for his compensable injury.  Nor is \nhe entitled to any additional indemnity benefits related thereto.”  The Full \nCommission finds that the claimant proved additional medical treatment \nwas reasonably necessary in connection with the compensable injury \nsustained by the claimant. \n The respondents essentially argue in their brief to the Full \nCommission that the claimant did not sustain a compensable left knee \ninjury.  The Full Commission notes that, at the hearing held August 17, \n2023, the respondents entered a revised stipulation that the claimant \nsustained “specifically a left quadriceps injury.”  Although the pro se \nclaimant tacitly assented to this late change, the Full Commission finds that \nthe respondents’ revised stipulation is not supported by the prior agreed \nstipulations or the evidence of record.     \n\nPAYNE - H000250  19\n  \n \n \n The parties initially stipulated that the employment relationship \nexisted on January 7, 2020, at which time the claimant “sustained a \ncompensable work-related injury to his left leg [emphasis supplied].”  It was \nreported that the claimant was suffering from “left knee pain” following the \ncompensable injury, and “soft tissue irregularity” in the claimant’s left \nanterior lower leg was noted.  Dr. Smith reported in November 2020 that the \nclaimant had sustained 12% permanent anatomical impairment based in \npart on “muscle weakness to the left knee” following the compensable \ninjury.  The respondents accepted this assigned permanent impairment \nrating which involved the claimant’s left knee.  Dr. Smith performed a \nsecond surgical procedure in February 2021 based in part on “Left knee \npain following quad tendon repair.”   \n The claimant contended in a pre-hearing order filed January 26, \n2022 that he was entitled to permanent total disability benefits.  The \nrespondents contended at that time that the claimant had received \nreasonably necessary medical treatment provided in connection with the \nclaimant’s “compensable left knee injury [emphasis supplied].”   The \nrespondents also contended in the January 26, 2022 pre-hearing order that \nthe claimant “sustained a compensable injury to his left lower extremity.”  \nAn administrative law judge filed an opinion on June 22, 2022 and found, \namong other things, that the claimant did not prove he was permanently \n\nPAYNE - H000250  20\n  \n \n \ntotally disabled.  The parties at that time did not adjudicate the claimant’s \nentitlement to additional medical treatment, and the administrative law \njudge did not enter a finding with regard to additional medical treatment.   \n The Arkansas Workers’ Compensation Commission shall make such \ninvestigation or inquiry in a manner as will best ascertain the rights of the \nparties.  Ark. Code Ann. §11-9-705(a)(1)(Repl. 2012); Bronco Industrial \nServices, LLC v. Brooks, 2021 Ark. App. 279, 625 S.W.3d 753.  See also \nClark v. Peabody Testing Service, 265 Ark. 489, 579 S.W.2d 360 (1979).      \n The claimant in the present matter did not sustain only a “left \nquadriceps tendon” injury.  We reiterate the parties’ stipulation that the \nclaimant sustained a compensable injury “to his left leg” on January 7, \n2020.  The claimant was plainly treated for “left knee pain” following the \ncompensable injury, and there were objective findings of “soft tissue \nirregularity” in the claimant’s left leg.  After the second surgery on February \n24, 2021, Dr. Smith noted “Left knee pain following quad tendon repair.”  A \npre-hearing order was filed on January 26, 2022.  The respondents \ncontended that the claimant had received all reasonably necessary medical \ntreatment provided in connection with the “compensable left knee injury.”  \nThe respondents also contended that the claimant had sustained a \ncompensable injury “to his left lower extremity.”     \n\nPAYNE - H000250  21\n  \n \n \n A hearing was held before an administrative law judge on March 30, \n2022.  The claimant informed the administrative law judge that he was \nsuffering from problems in his left knee as a result of the stipulated \ncompensable injury to the claimant’s left lower extremity.  The \nadministrative law judge filed an opinion on June 22, 2022.  The \nadministrative law judge found, among other things, that the claimant “failed \nto prove by a preponderance of the evidence that he has been rendered \npermanently and totally disabled as a result of his compensable left lower \nextremity injury [emphasis supplied].”  The parties have stipulated that the \nadministrative law judge’s June 22, 2022 decision is “the law of the case.”  \nThe administrative law judge’s decision patently states that the claimant \ninjured his left lower extremity, not just the “quadriceps tendon.”  Neither the \nprior agreed stipulations nor the evidence of record supports the \nrespondents’ assertion on appeal that the claimant failed to prove he \nsustained a compensable left knee injury on January 7, 2020. \n It is the Commission’s duty to translate the evidence of record into \nfindings of fact.  Gencorp Polymer Prods. v. Landers, 36 Ark. App. 190, 820 \nS.W.2d 475 (1991).  It is also within the Commission’s province to weigh all \nof the medical evidence and to determine what is most credible.  Minnesota \nMining & Mfg. v. Baker, 337 Ark. 94, 989 S.W.2d 151 (1999).  In the present \nmatter, the evidence demonstrates that the claimant sustained a \n\nPAYNE - H000250  22\n  \n \n \ncompensable injury to his left lower extremity, including his left knee, on \nJanuary 7, 2020.  The claimant has undergone two surgeries but continues \nto suffer with chronic pain and testified that he has difficulty even \nstraightening his left leg.  The evidence of record corroborates the \nclaimant’s testimony that his left leg will occasionally “give out,” causing the \nclaimant to fall.  This corroborating evidence includes the report from \nHelena Regional Medical Center dated October 28, 2021.   \n The claimant proved by a preponderance of the evidence that he is \nentitled to additional medical treatment to be provided by Dr. Busby.  Based \non Dr. Pearce’s December 20, 2022 report, Dr. Busby has explicitly noted \nthat an October 18, 2022 report showed “meniscal tears” in the claimant’s \nleft knee.  Dr. Pearce’s physical examination showed that the circumference \nof the claimant’s left lower extremity is 2 centimeters smaller than the right \nlower extremity.  The Full Commission assigns minimal evidentiary weight \nto Dr. Pearce’s opinion, “There is no indication for further diagnostic or \ntreatment modalities for him.”  \n  After reviewing the entire record de novo, the Full Commission finds \nthat the claimant proved he was entitled to additional medical treatment to \nbe provided by Dr. Busby.  The claimant proved that said treatment was \nreasonably necessary in accordance with Ark. Code Ann. §11-9-\n508(a)(Repl. 2012).  The parties stipulated that the claimant reached \n\nPAYNE - H000250  23\n  \n \n \nmaximum medical improvement on or about July 13, 2021.  The evidence \ntherefore demonstrates that the claimant reached the end of a healing \nperiod no later than July 13, 2021.  An employee who has suffered a \nscheduled injury, like the claimant, is to receive temporary total disability \nbenefits during his healing period or until he returns to work, whichever \noccurs first.  Ark. Code Ann. §11-9-521(a)(Repl. 2012); Wheeler Constr. \nCo. v. Armstrong, 73 Ark. App. 146, 41 S.W.3d 822 (2001).  Based on the \ncurrent evidence of record, the claimant did not prove that he re-entered a \nhealing period at any time after July 13, 2021.  The claimant therefore did \nnot prove he was entitled to additional temporary total disability benefits.   \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 \n I must respectfully dissent from the Majority’s finding that the \nclaimant proved by a preponderance of the evidence that he is entitled to \nadditional medical treatment. \n\nPAYNE - H000250  24\n  \n \n \nI. The claimant is not entitled to additional medical \ntreatment. \n \nArk. Code Ann. § 11-9-508(a) (Repl. 2012) requires an employer to \nprovide an employee with medical and surgical treatment \"as may be \nreasonably necessary in connection with the injury received by the \nemployee.\"  The claimant has the burden of proving by a preponderance of \nthe evidence that the additional treatment is reasonable and necessary. \nNichols v. Omaha Sch. Dist., 2010 Ark. App. 194, 374 S.W.3d 148 (2010). \nWhat constitutes reasonably necessary treatment is a question of fact for \nthe Commission.  Gant v. First Step, Inc., 2023 Ark. App. 393, 675 S.W.3d \n445 (2023).  In assessing whether a given medical procedure is reasonably \nnecessary for treatment of the compensable injury, the Commission \nanalyzes both the proposed procedure and the condition it sought \nto remedy.  Walker v. United Cerebral Palsy of Ark., 2013 Ark. App. 153, \n426 S.W.3d 539 (2013). \nIt is within the Commission's province to weigh all the medical \nevidence to determine what is most credible and to determine its medical \nsoundness and probative force.  Sheridan Sch. Dist. v. Wise, 2021 Ark. \nApp. 459, 637 S.W.3d 280 (2021).  In weighing the evidence, the \nCommission may not arbitrarily disregard medical evidence or the testimony \nof any witness.  Id.  However, the Commission has the authority to accept \nor reject medical opinions.  Williams v. Ark Dept. of Community Corrections, \n\nPAYNE - H000250  25\n  \n \n \n2016 Ark. App. 427, 502 S.W. 3d 530 (2016).  Furthermore, it is the \nCommission's duty to use its experience and expertise in translating the \ntestimony of medical experts into findings of fact and to draw inferences \nwhen testimony is open to more than a single interpretation.  Id. \nHere, the claimant suffered an admittedly compensable injury to his \nleft quadriceps on January 7, 2020.  Dr. Phillip A. Smith performed a left \nquadriceps tendon repair on February 13, 2020.  (Resp. Ex. 1, P. 8).  On \nFebruary 24, 2021, the claimant underwent exploration of the tendon, also \nperformed by Dr. Smith, which showed complete healing.  Id.  The claimant \nreached maximum medical improvement on July 13, 2021 and was sent for \na functional capacity evaluation (FCE) where he performed reliably.  Id. \nUltimately, he was assigned twenty percent (20%) whole person impairment \non September 5, 2021.  Id. \nIn June of 2022, an administrative law judge (ALJ) ruled that the \nclaimant was not permanently and totally disabled or entitled to wage-loss \ndisability benefits.  The claimant subsequently sought a one-time change of \nphysician and was evaluated by Dr. D’Orsay Bryant in El Dorado.  (Hrng. \nTr, Pp. 24-25).  He then treated with Dr. Charles E. Pearce, an orthopedic \nsurgeon, on December 20, 2022.  (Resp. Ex. 1, Pp. 15-17).  Dr. Pearce \nreviewed the claimant’s medical records and conducted a physical \nexamination of the claimant, opining that “[t]here are no other diagnostic \n\nPAYNE - H000250  26\n  \n \n \ntests and/or surgery that I can see that are indicated at this point.”  (Resp. \nEx. 1, P. 16).  Upon receiving and reviewing the claimant’s FCE, Dr. Pearce \nopined: \nHe has previously been given \nimpairment ratings and no \nadditional impairment is indicated. \nThere is no indication for further \ndiagnostic or treatment modalities \nfor him.  His main deficit is related \nto decreased strength in the leg \nwhich is fully under his own control \nin my opinion.  Arthroscopy \npreviously discussed by another \nphysician would be of little benefit \nfor him.  These statements are \nmade within a degree of medical \ncertainty.  Id. \n \nThe claimant has wholly failed to meet his burden of proving that he \nis entitled to any treatment of benefits beyond what has been paid.  Dr. \nPearce opined that the no further treatment would benefit the claimant and \nthat his sole remaining complaint – weakness – is subject to the claimant’s \nown control.  There is no documentary  evidence or testimony supporting \nthe claimant’s contention that he suffers from a condition that requires \ntreatment that is necessary, reasonable, or causally related to his \ncompensable injury. \nII. The agreed stipulation should remain in the record. \n\nPAYNE - H000250  27\n  \n \n \nAt the hearing, the respondent attorney sought to modify the parties’ \npre-hearing stipulations to state that the “claimant sustained a \ncompensation [sic] work-related injury to his left leg . . . ‘specifically a left \nquadriceps tendon injury.’” (Hrng. Tr., P. 10).  In granting this modification, \nthe ALJ had the following exchange with the claimant: \nJUDGE HOWE: So, Mr. Payne, do \nyou understand \nand agree with \nthat? \n \nCLAIMANT: That it’s a left \nquadriceps – \n \nJUDGE HOWE: Quadriceps injury, \nthat that is the \ninjury that \noccurred on that \ndate? \n \nCLAIMANT: Yes. \n \nJUDGE HOWE: Okay.  So we can \nstipulate to that. \nThe record will be \nreflective of that.  \nId. \n \nArkansas Code Annotated § 11-9-705(a)(1) provides that in \nconducting a hearing, \n\nPAYNE - H000250  28\n  \n \n \nthe Commission shall not be bound by \ntechnical or statutory rules of evidence or by \ntechnical or formal rules of procedure, except \nas provided by this chapter, but may make \nsuch investigation or inquiry, or conduct the \nhearing, in a manner as will best ascertain the \nrights of the parties. \n \nOur Court of Appeals has previously agreed with Commission rulings \non this matter.  See Jackson v. Circle T Express, 49 Ark. App. 94, 896 \nS.W.2d 602 (1995).  In Jackson, the employer initially accepted \ncompensability of a claim and later stipulated that the claim was \ncompensable at the prehearing conference.  Id.  This stipulation was \nmemorialized in a pre-hearing order.  Id.  At the hearing, the employer \nsought to withdraw its stipulation regarding compensability.  Id.  The \nCommission found that Circle T was not precluded from challenging the \nappellant's claim as a result of the stipulation or payment of compensation \nbased upon the appellant's failure to prove that he sustained a \ncompensable injury.  Id.  The Commission refused to enforce the stipulation \nbecause it found that such enforcement would be contrary to the basic \nnotions of justice and fair play.  Id.  It concluded that \"to find on one hand \nthat the facts fail to establish a cause of action and on the other to impose \nliability on one of the parties is not logically consistent or compatible with \nthe interests of justice and fair play.\"  Id. \n\nPAYNE - H000250  29\n  \n \n \nFurther, “[p]ro se claimants receive no special consideration of their \nargument and are held to the same standard as a licensed \nattorney.”  Boykin v. Crockett Adjustment Ins., 2013 Ark. App. 157 \n(2013).  “We will not develop an issue for a party at the appellate level.”  Id.   \n Although the Majority contends that the “respondents’ revised \nstipulation is not supported by the prior agreed stipulations or the evidence \nof the record,” and that the claimant only “tacitly” assented to the \nmodification, this is contrary to the facts and the notion of fair play.  (P. 18). \nThe claimant underwent imaging studies on his left knee on the date of the \ninjury which revealed “[n]o acute fracture or dislocation is appreciated.  No \nsignificant suprapatellar bursal effusion is identified.”  (Resp. Ex. 1, P. 1). \nThe records at hand do not reflect any further findings or treatment \nregarding the claimant’s left knee.  \nIt is our duty to ascertain the rights of the parties while ensuring that \nthe notions of justice and fair play are upheld.  The Majority sets aside a \nstipulation that is clearly and knowingly agreed to by the parties while \ndisregarding the evidence that the issue of the claimant’s left knee has not \nbeen litigated in the three years prior to this hearing.  This is unnecessarily \npunitive to the respondent carrier who, once this stipulation was entered \ninto the record, did not have the appropriate opportunity to defend against \nthis claim.  It goes beyond our duties to create and litigate an issue on \n\nPAYNE - H000250  30\n  \n \n \nbehalf of a pro-se claimant and is a violation of our well-settled rules, and \ntherefore this stipulation should remain in the record. \nAccordingly, for the reasons stated above, I respectfully dissent. \n  \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner","preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H000250 DARRYL G. PAYNE, EMPLOYEE CLAIMANT PHILLIPS COMMUNITY COLLEGE, EMPLOYER RESPONDENT PUBLIC EMPLOYEE CLAIMS DIVISION, INSURANCE CARRIER/TPA RESPONDENT OPINION FILED MAY 28, 2024","fetched_at":"2026-05-19T22:29:45.538Z","links":{"html":"/opinions/full_commission-H000250-2024-05-28","pdf":"https://labor.arkansas.gov/wp-content/uploads/Payne_Darryl_H000250_20240528.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/"}}