{"id":"full_commission-H103797-2023-04-04","awcc_number":"H103797","decision_date":"2023-04-04","opinion_type":"full_commission","claimant_name":"Robert Powers","employer_name":"University Of Arkansas Fayetteville","title":"POWERS VS. UNIVERSITY OF ARKANSAS FAYETTEVILLE AWCC# H103797 & H103798 & H201158 APRIL 4, 2023","outcome":"granted","outcome_keywords":["granted:1","denied:1"],"injury_keywords":["knee","back","strain","lumbar","hip","herniated","sprain"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/Powers_Robert_H103797_H103798_H201158_20230404.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Powers_Robert_H103797_H103798_H201158_20230404.pdf","text_length":32666,"full_text":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n \nCLAIM NOS.  H103797, H103798 & H201158  \n \nROBERT POWERS, \nEMPLOYEE \n \nCLAIMANT \nUNIVERSITY OF ARKANSAS FAYETTEVILLE,  \nEMPLOYER \n \nRESPONDENT \nPUBLIC EMPLOYEE CLAIMS DIVISION, \nINSURANCE CARRIER/TPA \nRESPONDENT \n  \n      \nOPINION FILED APRIL 4, 2023 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE EVELYN E. BROOKS, Attorney \nat Law, Fayetteville, Arkansas. \n \nRespondents represented by the HONORABLE CHARLES H. McLEMORE, \nJR., Attorney at Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Affirmed as modified. \n \n \n OPINION AND ORDER \nThe respondents appeal an administrative law judge’s opinion filed \nAugust 18, 2022.  The administrative law judge found that the claimant \nproved he was entitled to additional medical treatment “for his left knee \ninjury.”  After reviewing the entire record de novo, the Full Commission \naffirms the administrative law judge’s opinion as modified.  The Full \nCommission finds that the claimant proved he sustained a compensable left \nknee injury as a natural consequence of his compensable back injury.     \nI.  HISTORY \n\nPOWERS – H103797, H103798, H201158  2\n  \n \n \n Robert John Powers, now age 56, testified that he became employed \nas a Master Plumber for the respondents, University of Arkansas, in 2005.  \nThe record indicates that the claimant sustained a work-related back injury \non or about August 29, 2019.  A medical provider reported on September 6, \n2019 that the claimant had sustained a Strain or Tear to his “Lower Back \nArea (Trunk)” on August 29, 2019.  It was noted, “Robert was carrying parts \nboxes into the basement through the quad.  He felt a strain in his lower left \nback.”  An x-ray of the claimant’s lumbar spine was taken on September 3, \n2019 with the impression, “1.  Mild disc space narrowing at L5-S1.  No \ncompression deformity or subluxation identified in the lumbar spine.  2.  \nMild bilateral acetabular spurring.”   \n Dr. Mark Miedema reported on November 24, 2020: \nMr. Powers presents for evaluation of 1 year intermittent low \nback pain.  This was a work related lifting injury.  He was \nlifting and carrying heavy boxes on 8/29/19 when he had \nonset of pain.  He works plumbing at the University of \nArkansas.  He never went through any treatments.  His pain \nsubsided for a time but has resurfaced several times over the \npast year it has particularly been worse over the last few \nweeks.  He is not having any leg pain at this time.   \n \n Dr. Miedema assessed “1.  Low back pain....2.  Degeneration of \nlumbosacral intervertebral disc....3.  Lumbar spondylosis....4.  Lumbosacral \nradiculopathy.”  Dr. Miedema treated the claimant conservatively.   \n\nPOWERS – H103797, H103798, H201158  3\n  \n \n \n An MRI of the claimant’s lumbar spine was taken on January 15, \n2021 with the impression, “Lower lumbar spondylosis, worst at the L4-5 and \nL5-S1 levels.  At L5-S1, there is a central disc extrusion measuring 7 mm.”   \n A Change of Physician Order on July 20, 2021 provided in part, “the \nclaimant is rescheduled with James Blankenship, M.D.”  Dr. James B. \nBlankenship examined the claimant on July 26, 2021: \nThe patient has lower back and bilateral hip pain with buttock \npain, right greater than left.  He has occasional bilateral lower \nextremity pain to his feet.  He has been having increasing \ncramping in his leg....He was injured on the job in November \nof 2020 when he was lifting some heavy equipment and had \nthe immediate onset of pain.  He did six months of physical \ntherapy with some transient relief.  He has been working at full \nduty.  He had an LESI with no significant relief.... \nHe has failed routine and usual conservative measures.  I told \nhim that given the fact that his pain duration is now eight \nmonths, it is unlikely that he is going to make any \nimprovement over where he is.  I told him the problem is not \nso much the herniated disc.  The problem has to do with the \nmalalignment and the instability.   \nI told him that if he elected for surgical intervention, my \nrecommendation would be an anterior lumbar interbody \narthrodesis at L5-S1 with posterior decompression and \ndiscectomy on the left-hand side with Bridgepoint clamping.... \n \n An MRI of the claimant’s lumbar spine taken October 13, 2021 \nshowed abnormalities which included “gross annular fissuring.”       \nThe parties stipulated that the employee-employer-carrier \nrelationship existed on January 18, 2022.  The claimant participated in a \nFunctional Capacity Evaluation on January 18, 2022: \n\nPOWERS – H103797, H103798, H201158  4\n  \n \n \nMr. Robert Powers is referred to Functional Testing Centers, \nInc. for the purpose of undergoing a comprehensive functional \ncapacity evaluation to determine his current functional \nstatus.... \nMr. Powers is referred with complaints of on-going pain in his \nlow back which he attributed to injuries he sustained in a \nwork-related accident.... \nConsistency of effort testing obtained during this evaluation \nindicate significant observational and evidence-based \ninconsistencies resulting in self-limiting behavior and sub-\nmaximal effort.  The results of this evaluation indicate that an \nunreliable effort was put forth, with 26 of 54 consistency \nmeasures within expected limits.... \nMr. Powers completed functional testing on this date with \nunreliable results.   \nOverall, Mr. Powers demonstrated the ability to perform work \nin at least the LIGHT classification of work as defined by the \nUS Dept. of Labor’s guidelines over the course of a normal 8-\nhour workday with limitations as noted above.... \nMr. Powers left the facility with the same gait patterns he had \nbeen exhibiting throughout testing.  His pace of movement \nwhen leaving the testing area was measured at 2.7 ft/sec. and \nhe exhibited no limp or altered gait pattern as he exited the \nfacility and entered a vehicle.... \nMr. Powers made no complaints or references to any new or \ndifferent areas or regions of pain that he wasn’t experiencing \nat the start of this evaluation.   \n \n The claimant testified on direct examination: \nQ.  At the end of that FCE, did you have an incident occur \nwith your left knee? \n  A.  Yes. \n  Q.  What happened? \nA.  It was towards the end of the test and he had me – he put \nsome weights on the ground and he asked me to pick it up.  \nAnd then I asked him how much weight it was and he told me \nhe couldn’t tell me the weight, you know, what it was. \nQ.  Why were you concerned about the weight? \nA.  I didn’t want to injure my back.   \nQ.  Were you on restrictions at that point as well? \nA.  Yes. \n\nPOWERS – H103797, H103798, H201158  5\n  \n \n \nQ.  Okay.  So then what happened? \nA.  I spread my legs and with my back being out, I used my \nknees and just go straight down on my back instead of \nbending my back.  And I went to pick it up and when I got it, I \ndon’t know, anywhere from 12 inches off the ground or so and \nI just felt my left knee pop.   \nQ.  Did you say anything about that? \nA.  Yes, I did....I told him my knee popped and he just kept \ngoing.   \nQ.  Okay. \nA.  Like kind of ignored me.   \nQ.  All right.  So at that point you said you had the weight off \nthe ground.  What did you do then? \nA.  He told me to – once I had it up, he had – I don’t know how \nmany feet it was, but he had me to carry it across the room \nand then turn around and come back and set it in the chair. \nQ.  And how much testing did you do after that movement? \nA.  I think that was the end of it.... \nQ.  Now, after you left, what did you do? \nA.  I went home and put an ice bag of peas on my left knee.   \nQ.  Okay.  And the next day, what happened? \nA.  I was hurting even worse.  My whole body was aching, but \nmy knee was really bad and I just sat there in my chair with an \nice pack or a bag of peas on it.   \nQ.  Did you try to contact the therapist? \nA.  I texted him. \n \n At hearing, the claimant submitted into evidence a text message \ndated January 19, 2022:  “This is Robert Powers.  My left knee is injured \nfrom the test yesterday.”  The claimant received a reply, “You need to \nspeak to your adjuster and Dr. Blankenship.”   \n The claimant texted “Debbie” on January 20, 2022:  “This is Robert \nPowers my left knee got injured from the test I need to see a doctor.”  The \nclaimant received a reply, “I will forward this to adjuster regarding approval.”   \n\nPOWERS – H103797, H103798, H201158  6\n  \n \n \nMuhannad Abdin, CNA noted on January 27, 2022, “Pt. reports \ninjuring his left knee during his workmen’s compensation evaluation \n1/18/22.”  Mr. Abdin diagnosed “Left knee injury.”   \nDr. Deborah Deere saw the claimant on January 28, 2022:  “Has a \nworkers comp back claim and was doing a functional study on 1/18, he was \nasked to lift a wt from the floor and injured his left knee.  States that he felt \na pop and was in a chair for 2 days with ice on it afterwards.  Normal gait, \nno previous injury to that knee.”  The claimant was provided a left neoprene \nknee sleeve, and he was referred to orthopedics.     \nDr. Blankenship reported on January 31, 2022: \nMr. Powers has elected not to have surgery.  We have \ndischarged him from our clinic.  I have reviewed his functional \ncapacity evaluation.  He gave unreliable effort with 26 out of \n54 consistency measures.  In that situation, it is unlikely that I \nwould offer the patient surgical intervention if he changes his \nmind in the future.  I am not saying that the gentleman is \nmalingering.  What I am saying is that he has inappropriate \nillness behavior.  The gentleman does have sagittal plane \nmalalignment with instability with annular fissuring which \nwould be considered a disc herniation....He would qualify for \n5% impairment to the body as a whole.  His additional level \nwould bring this up one more percent to a 6% impairment to \nthe body as a whole....This narrative has been based on a \nreasonable degree of medical certainty and a review of his \ncomplete medical records and his functional capacity \nevaluations.   \n \n On January 31, 2022, a claims specialist with the respondent-carrier \nqueried Charles Davidson and Casey Garretson, representatives of \nFunctional Testing Centers, Inc.  The claims specialist asked, among other \n\nPOWERS – H103797, H103798, H201158  7\n  \n \n \nthings, “Can you tell me if Mr. Powers reported an injury to his left knee at \nany time during his testing?”  Mr. Davidson and Mr. Garretson replied in \npart: \nYou will see on his intake paperwork (Pain Drawing attached) \nthat Mr. Powers had already indicated before any testing was \nperformed that he had bilateral leg and knee pain.... \nMr. Powers did not report “popping” of either knee and there \nwas no audible crepitation or popping noted at any time during \nthis evaluation.   \nMr. Powers began testing with a normal gait pattern while \nwalking at a moderate pace with normal arm swing as noted \non page 7 of the report.  All lifting was stopped by Mr. Powers \nwith complaint of his low back that he described as “straining.”  \nIt was further documented that his lifts were symmetrical in \nnature with no shifts away from either lower extremity \nindicating any injury or pain process.  He performed carrying \nof weight after completion of the lifting with no limp or any \nindication of knee pain or issues.   \nMr. Powers did not complete any crouching tasks and in fact \nminimally squatted when asked to attempt a crouch position.  \nHe reported bilateral knee pain and fatigue with that single \nattempt and did this without favoring either knee.  He did not \nreport injury nor was there any indication of any change in his \ncondition following this single trial as he then completed \nseveral hours of additional testing with no change in his gait or \nspeed of movement when walking or performing general \nmobility tasks such as standing for prolonged periods.   \nMr. Powers walking was re-assessed at the conclusion of the \nevaluation and his pace and gait patterns remained \ncompletely normal.  He did not have a limp present and \nactually walked at an improved pace as compared to that \nnoted at the onset of the evaluation. \nAt no time during or immediately after the FCE did Mr. Powers \nreports (sic) any injury to his left knee.... \nIn conclusion, there is absolutely no indication of injury during \nthis FCE regardless of Mr. Powers complaints.   \n \n\nPOWERS – H103797, H103798, H201158  8\n  \n \n \n The claimant signed a Form AR-N, Employee’s Notice Of Injury, on \nFebruary 4, 2022.  The claimant reported on the Accident Information \nsection of the Form AR-N that the date of accident was January 18, 2022 \nand that he notified the employer on January 19, 2022.  The claimant wrote, \n“Left knee was damaged during functional test required by workmans \ncomp.”  The claimant also wrote, “Was not told the weight that I picked \nup/they would not tell me the weight.  They refused to tell me the weight \npast my weight limit.”  It was also contended on the Form AR-N, “The \nemployee was at a testing site for workers comp. for a back injury.  He was \nbeing tested to see if he was ready to go back to work.  During the testing \nhe was told to pick up an unknown amount of weight.  He felt a pop to his \nleft knee when trying to pick up the weights.”   \n A claims specialist informed the claimant on February 7, 2022, “After \ncompleting my investigation into the claim you filed for an injury on \n01/18/2022, it appears your claim does not meet the criteria for \ncompensability.  Therefore, I must respectfully deny your claim for workers’ \ncompensation benefits.”   \n The claimant filed a Form AR-C, Claim For Compensation, on \nFebruary 16, 2022.  The Accident Information section of the Form AR-C \nindicated that the Date of Accident was January 18, 2022.  The claimant \n\nPOWERS – H103797, H103798, H201158  9\n  \n \n \nwrote, “I injured my left knee as a compensable consequence of my \ncompensable back injuries of September 2019 and November of 2020.”   \nDr. Christopher P. Dougherty treated the claimant for left knee pain \non March 16, 2022 and reported “Complete tear, knee, anterior cruciate \nligament.”  Dr. Dougherty noted that the date of onset was 01/2022, \n“Context:  Return to work ability test.”  Dr. Dougherty assessed, “His exam \nis consistent with a tear of the left ACL.  He will need [an] MRI of the left \nknee for further assessment.”   \n An MRI of the claimant’s left knee was taken on March 23, 2022 with \nthe following impression: \n1.  Minimal heterogeneity of the ACL suggestive of a very mild \nsprain.  ACL is intact.   \n2.  Mild subcutaneous swelling along the anterior aspect of \nthe knee.   \n \nThe claimant followed up with Dr. Dougherty on March 30, 2022:  \n“His MRI of the left knee was reviewed and discussed today.  It shows a \nmild ACL sprain.  We will treat this conservatively at this time.  He will get \nstarted in physical therapy.  He will return in 2 months for recheck.”  \nDr. Dougherty referred the claimant to Trinity Rehab on March 30, \n2022.    \nA pre-hearing order was filed on April 21, 2022.  According to the \ntext of the pre-hearing order, the claimant contended that he was “entitled \n\nPOWERS – H103797, H103798, H201158  10\n  \n \n \nto medical benefits for his left knee, injured as a result of his compensable \nback injuries.  The claimant reserves all other issues.” \n The parties stipulated that the respondents “have controverted the \nclaim in regarding claimant’s left knee.”  The respondents contended, “The \nclaimant reported having an injury to his low back on August 29, 2019 \nwhich has been accepted as compensable.  The respondent has provided \nthe claimant with medical treatment reasonable and necessary for the \ncompensable injury, including treatment with Dr. Mark Miedema who \ntreated the claimant conservatively with injection, physical therapy, and an \nMRI.  No surgery was recommended by Dr. Miedema, only Gabapentin and \nMedrol has been prescribed, and no work restrictions were given by Dr. \nMiedema.  In April 2021, the claimant reported having had an injury to his \nlow back in November 2020.  The respondent accepted this as a medical \nonly claim, and the claimant continued to be provided treatment for his low \nback for his August 29, 2019 injury.  The claimant had his onetime Change \nof Physician to Dr. Blankenship, who saw the claimant on July 26, 2021 and \nadditional treatment with Dr. Blankenship, including a second MRI study \nwas provided by respondent.  Dr. Blankenship offered the claimant lumbar \ninterbody arthrodesis at L4-5 and L5-S1, but the claimant declined surgery.  \nDr. Blankenship then ordered a Functional Capacity Evaluation.  At the \nJanuary 18, 2022 FCE, the claimant performed unreliably with 26 out of 54 \n\nPOWERS – H103797, H103798, H201158  11\n  \n \n \nconsistency measures, after which Dr. Blankenship wrote in his January 31, \n2022 letter that he would not operate on this claimant because of the \nclaimant’s ‘inappropriate illness behavior’ Dr. Blankenship discharged the \nclaimant form (sic) his clinic and released the claimant at maximum medical \nimprovement.  After this FCE appointment, at which the claimant tested \nunreliably, the claimant alleged to have sustained an injury to his left knee \nduring the FCE.  Respondent contends that the claimant did not sustain a \ncompensable injury to his left knee at the FCE or as a compensable \nconsequence of a compensable injury.  The claimant was not taken off work \nby his physicians, and Dr. Blankenship released the claimant at MMI on \nJanuary 31, 2022 at which time Dr. Blankenship assigned the claimant a \n6% rating to the body as a whole.  The claimant returned to work and \nrespondent has accepted this rating and is paying permanent partial \ndisability benefits to the claimant.  The respondents reserve the right to \nraise additional contentions, or to modify those stated herein, pending \ncompletion of discovery.”   \n The parties agreed to litigate the following issue:  “1.  Whether \nclaimant is entitled to medical benefits regarding to his left knee.”  \n The claimant followed up with Dr. Dougherty on June 1, 2022:  “He \nwas seen in the office today as a follow up for continued left knee pain.  He \nhas been working on a home exercise program with only slight \n\nPOWERS – H103797, H103798, H201158  12\n  \n \n \nimprovement.  He will continue with this and we will see him back as \nsymptoms warrant and he gets everything worked out with work.”  Dr. \nDougherty assessed “1.  Sprain of anterior cruciate ligament of \nknee....Patient will return to the office as needed.”   \n After a hearing, an administrative law judge filed an opinion on \nAugust 18, 2022.  The administrative law judge found that the claimant \nproved he was entitled to additional medical treatment “for his left knee \ninjury.”  The respondents appeal to the Full Commission. \nII.  ADJUDICATION \n If an injury is compensable, then every natural consequence of that \ninjury is also compensable.  Hubley v. Best Western Governor’s Inn, 52 Ark. \nApp. 226, 916 S.W.2d 143 (1996).  The basic test is whether there is a \ncausal connection between the two episodes.  Jeter v. B.R. McGinty \nMechanical, 62 Ark. App. 53, 968 S.W.2d 645 (1998).  The burden is on the \nemployee to establish the necessary causal connection.  Nichols v. Omaha \nSch. Dist., 2010 Ark. App. 194, 374 S.W.3d 148.  Whether there is a causal \nconnection is a question of fact for the Commission.  Jeter, supra. \n An administrative law judge found in the present matter, “2.  \nClaimant has met his burden of proof by a preponderance of the evidence \nthat he is entitled to additional medical treatment from Dr. Christopher \nDougherty for his left knee injury.”  It is the duty of the Full Commission to \n\nPOWERS – H103797, H103798, H201158  13\n  \n \n \nenter findings in accordance with the preponderance of the evidence and \nnot on whether there is substantial evidence to support an administrative \nlaw judge’s findings.  Roberts v. Leo Levi Hospital, 8 Ark. App. 184, 649 \nS.W.2d 402 (1983).  The Full Commission enters its own findings in \naccordance with the preponderance of the evidence.  Tyson Foods, Inc. v. \nWatkins, 31 Ark. App. 230, 792 S.W.2d 348 (1990). \n In the present matter, the Full Commission finds that the claimant \nsustained a compensable injury to his left knee as a natural consequence of \nthe claimant’s compensable back injury.  The claimant has been employed \nas a Master Plumber for the respondents, University of Arkansas, since \n2005.  The claimant sustained a work-related back injury on August 29, \n2019, and the respondents accepted the injury as compensable.  The \nclaimant apparently sustained another work-related back injury in \nNovember 2020 which was also accepted as compensable by the \nrespondents.  The claimant was treated conservatively for his compensable \nback injuries.  The claimant received a Change of Physician to Dr. \nBlankenship on July 20, 2021.  Dr. Blankenship recommended surgery, but \nthe claimant declined the surgical method proposed by Dr. Blankenship. \n The claimant participated in a Functional Capacity Evaluation on \nJanuary 18, 2022.  Casey Garretson and Charles Davidson with Functional \nTesting Centers, Inc. concluded that the claimant gave an “invalid” and \n\nPOWERS – H103797, H103798, H201158  14\n  \n \n \n“inconsistent” effort.  The claimant testified that he injured his left knee while \nattempting to lift a heavy weight during the Functional Capacity Evaluation.  \nThe claimant testified that the evaluators “kind of ignored” him and \ncontinued with the evaluation.  The claimant testified that, after completing \nthe Functional Capacity Evaluation, he returned home and placed “an ice \nbag of peas” on his knee. \n The Commission is not required to believe the testimony of the \nclaimant or any other witness but may accept and translate into findings of \nfact only those portions of the testimony deemed worthy of belief.  Holloway \nv. Ray White Lumber Co., 337 Ark. 524, 990 S.W.2d 526 (1999).  The Full \nCommission finds in the present matter that the claimant was a credible \nwitness.  First, the documentary evidence of record corroborated the \nclaimant’s testimony.  The record indicates that the claimant sent a text \nmessage to one of the functional capacity evaluators the day after the \nFunctional Capacity Evaluation, January 19, 2022, and informed him, “My \nleft knee is injured from the test yesterday.”  The evaluator replied through a \ntext, “You need to speak to your adjuster and Dr. Blankenship.”  The \nclaimant also sent a text message to an individual named \"Debbie” on \nJanuary 20, 2022 and informed her, “This is Robert Powers my left knee got \ninjured from the test I need to see a doctor.”  The claimant received a reply, \n“I will forward this to adjuster regarding approval.”   \n\nPOWERS – H103797, H103798, H201158  15\n  \n \n \n Additionally, the medical providers corroborated the claimant’s \ntestimony.  A CNA noted on January 27, 2022, “Pt. reports injuring his left \nknee during his workmen’s compensation evaluation 1/18/22.”  The CNA \ndiagnosed “Left knee injury.”  Dr. Deere reported on January 28, 2022, “Has \na workers comp back claim and was doing a functional study on 1/18, he \nwas asked to lift a wt from the floor and injured his left knee.  States that he \nfelt a pop and was in a chair for 2 days with ice on it afterwards.”  The \nclaimant was treated conservatively by Dr. Deere and Dr. Dougherty.  An \nMRI of the claimant’s left knee on March 23, 2022 showed “a very mild \nsprain” and “mild subcutaneous swelling along the anterior aspect of the \nknee.”  Dr. Dougherty confirmed on March 30, 2022 that MRI “shows a mild \nACL sprain.”  Dr. Dougherty referred the claimant for rehabilitation.   \n The Full Commission finds that the claimant was a credible witness, \nand that the evidence of record corroborated the claimant’s testimony.  We \nfind in the present matter that the claimant’s testimony was entitled to more \nevidentiary weight that the reports of Casey Garretson and Charles \nDavidson.  Based on the claimant’s credibility and the corroborating \nevidence of record, the Full Commission finds that the claimant injured his \nleft knee during the January 18, 2022 Functional Capacity Evaluation. \n After reviewing the entire record de novo, the Full Commission finds \nthat the claimant sustained a compensable left knee injury as a natural \n\nPOWERS – H103797, H103798, H201158  16\n  \n \n \nconsequence of his compensable back injury.  The claimant proved that the \nmedical treatment of record provided in connection with his compensable \nleft knee injury, including the treatment provided and recommended by Dr. \nDougherty, was reasonably necessary in accordance with Ark. Code Ann. \n§11-9-508(a)(Repl. 2012).  For prevailing on appeal to the Full Commission, \nthe claimant’s attorney is entitled to a fee of five hundred dollars ($500), \npursuant to Ark. Code Ann. §11-9-715(b)(Repl. 2012). \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 determination that the \nclaimant sustained a compensable left knee injury as a natural \nconsequence of his compensable back injury and that the related treatment \nprovided for his left knee, including the treatment provided and \nrecommended by Dr. Dougherty was reasonable and necessary. \n\nPOWERS – H103797, H103798, H201158  17\n  \n \n \nThe claimant sustained compensable back injuries in August 2019 \nand November 2020, which were accepted by the Respondents.  The \nclaimant alleges he sustained an injury to his left knee during a functional \ncapacity exam (FCE) on January 18, 2022.  The facts presented do not \nsupport the claimant’s contentions.  On his FCE intake paperwork, the \nclaimant “had already indicated before any testing was performed that he \nhad bilateral leg and knee pain.”  (Resp. Ex.2, P. 33).  During the intake \ninterview, the claimant reported that he had additional pain in both knees. \nId.  “He also indicated prior to testing that he had moderate difficulty with \nsquatting, kneeling and climbing stairs that he stated was due to bilateral \nknee pain.” Id.  The claimant’s efforts during the FCE were inconsistent. \n(Resp. Ex. 2, P. 14).  This inconsistency resulted in “self-limiting behavior \nand sub-maximal effort” with only 26 of 54 consistency measures falling \nwithin the expected limits. Id.  The claimant’s conduct and self-reported pain \nare “indicative of symptom magnification.”  (Resp. Ex. 2, P. 15).  The FCE \nevaluator reported that the claimant “did not report ‘popping’ of either knee \nand there was no audible crepitation or popping noted at any time during \nthis evaluation.”  (Resp. Ex. 2, P. 33).  The claimant performed normally \nthroughout the FCE, and “it was further documented that his lifts were \nsymmetrical in nature with no shifts away from either lower extremity \nindicating any injury or pain process.  He performed carrying of weight after \n\nPOWERS – H103797, H103798, H201158  18\n  \n \n \ncompletion of the lifting with no limp or any indication of knee pain or \nissues.” Id.  The claimant did not complete any crouching tasks during the \nFCE and complained of bilateral knee pain during the single attempt at \nsquatting. Id.  He did not report  any injury and there was no indication of \nany change in his condition.  (Resp. Ex. 2, P. 34).  The claimant went on to \ncomplete “several hours of additional testing with no change in his gait or \nspeed of movement.” Id.  Ultimately the claimant’s “walking was re-\nassessed at the conclusion of the evaluation and his pace and gait patterns \nremained completely normal.  He did not have a limp present and \nactually walked at an improved pace as compared to that noted at the \nonset of the evaluation. Id.  (emphasis in original).  The claimant did not \nreport any injury to his left knee during or immediately after the FCE and \ndenied any injury when asked about any new areas of pain Id.  Unreliable \neffort on a functional capacity exam is a relevant factor in determining the \nweight of a claimant’s testimony and the Commission is within its rights to \nafford greater credibility to the weight of the medical evidence when a \nclaimant’s testimony is unreliable.  Willis v. Ark. Dep't of Corr., 2021 Ark. \nApp. 50, 616 S.W.3d 679 (2021), citing O'Guinn v. Little River Mem'l Hosp., \n2013 Ark. App. 593, 430 S.W.3d 150 (2013). \nAfter the claimant reported his left knee injury, the respondent carrier \nsent the claimant to Pat Walker clinic for treatment, but there were no \n\nPOWERS – H103797, H103798, H201158  19\n  \n \n \nobjective indications of injury at that time.  (Resp. Ex. 1, P. 55-57).  Dr. \nDeborah Deere’s report from that visit reflects “no swelling or effusion, no \npain or crepitus with patellar compression, full [range of motion], no joint \nline tenderness.”  (Resp. Ex. 1, P. 56).  \nWhen the claimant later saw Dr. Christopher Dougherty of his own \nvolition, there was no indication of an ACL tear on an MRI and there was \nonly evidence of a very mild sprain.  (Resp. Ex. 1, Pp. 66, 69).  In fact, the \nACL was intact.  The claimant has not missed any work due to this alleged \ninjury and treated with home exercises.  He is still able to drive, walk, and \ntravel.  (Trans. Pp. 31-32).  The sole source of information regarding if and \nwhen this injury took place is the claimant himself.  Arkansas Code \nAnnotated section 11-9-102(4)(D) requires that a compensable injury must \nbe established by medical evidence supported by objective findings. \nWithout the support of objective findings, a diagnosis of a sprain is \ninsufficient to establish compensability. Smith v. Howard Cnty. Children's \nCtr., 2005 Ark. App. LEXIS 423 (2005). \nDespite the conflicting testimony and evidence, the ALJ gave great \nweight to the claimant’s testimony, appearing to wholly disregard reports \nfrom the FCE examiner, stating that he “found him to be a credible witness . \n. . The way he described how he injured his left knee is plausible.”  \n(Opinion, P. 10).  The ALJ describes that claimant as “cautious about doing \n\nPOWERS – H103797, H103798, H201158  20\n  \n \n \nanything to his injured back during the exam,” and finds “it hard to believe \nthat he would not have mentioned an injured knee prior to the evaluation.” \nId.  However, what the ALJ sees as caution is considered “inappropriate \nillness behavior” by Dr. James Blankenship.  (Resp. Ex. 1., P. 58). \nIt is well settled that while a case my ultimately “boil down” to the \ncredibility of a claimant, a party’s testimony is never considered \nuncontroverted.  Nix v. Wilson World Hotel, 46 Ark. App. 303, 879 S.W.2d \n457 (1994), citing Lambert v. Gerber Products Co., 14 Ark. App. 88, 684 \nS.W.2d 842 (1985). “[T]he Commission is not required to believe the \ntestimony of the claimant or other witnesses but may accept and translate \ninto findings of fact only those portions of the testimony it deems worthy of \nbelief.” Wright v. Conway Freight, 2014 Ark. App. 451, 441 S.W.3d 45 \n(2014), citing Cottage Café, Inc. v. Collette, 94 Ark. App. 72, 226 S.W.3d 27 \n(2006).  \nBecause of the claimant’s unreliable performance at the FCE, the \nCommission is entitled to review the basis for a doctor’s opinion in deciding \nthe weight and credibility of the opinion and medical exhibits.  Maverick \nTransportation v. Buzzard, 69 Ark. App. 128, 10 S.W.3d 467 (2000).  A \nphysician’s special qualifications and whether a physician rendering an \nopinion ever actually examined the claimant are factors in considering the \n\nPOWERS – H103797, H103798, H201158  21\n  \n \n \nweight and credibility of an opinion.  Barksdale Lumber Co., et al v. Lois \nMcAnally, 262 Ark. 279, 557 S.W.2d 868 (1977). \nI do not find the claimant’s testimony credible.  The fact the claimant \nwas inconsistent with his efforts at the FCE shows he is exaggerating his \nclaim.  Based on his refusal to put forth reliable and good faith effort during \nhis FCE so that his physical condition could accurately be assessed, I \nwould give very little, if any, weight to his testimony.  The FCE reports made \na part of the record clearly show the claimant was not forthcoming about the \nextent of his injuries, was not credible in testing, and did not sustain a \ncompensable injury to his left knee on June 18, 2022 during his functional \ncapacity exam. \nFor the reasons stated above, I respectfully dissent. \n \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner","preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NOS. H103797, H103798 & H201158 ROBERT POWERS, EMPLOYEE CLAIMANT UNIVERSITY OF ARKANSAS FAYETTEVILLE, EMPLOYER RESPONDENT PUBLIC EMPLOYEE CLAIMS DIVISION, INSURANCE CARRIER/TPA RESPONDENT OPINION FILED APRIL 4, 2023","fetched_at":"2026-05-19T22:29:46.504Z","links":{"html":"/opinions/full_commission-H103797-2023-04-04","pdf":"https://labor.arkansas.gov/wp-content/uploads/Powers_Robert_H103797_H103798_H201158_20230404.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/"}}