{"id":"full_commission-H208370-2024-04-09","awcc_number":"H208370","decision_date":"2024-04-09","opinion_type":"full_commission","claimant_name":"Jason House","employer_name":"Penske Logistics, Inc","title":"HOUSE VS. PENSKE LOGISTICS, INC. AWCC# H208370 APRIL 9, 2024","outcome":"granted","outcome_keywords":["granted:1","denied:1"],"injury_keywords":["fracture","knee","hip","back","shoulder"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/House_Jason_H208370_20240409.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"House_Jason_H208370_20240409.pdf","text_length":23513,"full_text":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n \nCLAIM NO.  H208370 \n \nJASON HOUSE, \nEMPLOYEE \n \nCLAIMANT \nPENSKE LOGISTICS, INC.,  \nEMPLOYER \n \nRESPONDENT \nOLD REPUBLIC INSURANCE COMANY, \nINSURANCE CARRIER/TPA \nRESPONDENT \n  \n      \nOPINION FILED APRIL 9, 2024 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE MICHAEL L. ELLIG, Attorney at \nLaw, Fort Smith, Arkansas. \n \nRespondents represented by the HONORABLE JARROD S. PARRISH, \nAttorney at Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Reversed. \n \n \n OPINION AND ORDER \nThe claimant appeals an administrative law judge’s opinion filed \nOctober 2, 2023.  The administrative law judge found that the claimant \nfailed to prove he was entitled to permanent partial disability benefits.  After \nreviewing the entire record de novo, the Full Commission reverses the \nadministrative law judge’s opinion.  The Full Commission finds that the \nclaimant proved he sustained a permanent anatomical impairment in the \namount of 37% to the right lower extremity.     \nI.  HISTORY \n\nHOUSE - H208370  2\n  \n \n \n Jason Patrick House, now age 51, testified that he was previously \ninvolved in a motor vehicle accident in 1997.  The claimant testified that he \nsustained injuries which included a right kneecap fracture.  Dr. James W. \nLong noted on December 12, 2016: \nThis is the initial office visit in several years for this 44-year-\nold male complaining of pain in his left knee.  This patient has \na significant orthopaedic history.  He was initially injured in \n1997 and treated at University of Arkansas for Medical \nSciences with a fracture of his right acetabulum, treated by \nopen reduction and internal fixation and with plate and \nscrews, plus an intramedullary rod of his right femur and an \narthrotomy of his right knee with repair of the fractures \nextensor mechanism, including the patella.  This occurred as \nthe result of a motor vehicle accident in 1997.  Open reduction \nand internal fixation procedure for the hip, including the \nacetabulum as well as the midthird of the femur with retained \nintramedullary rod and the fracture about the right patella and \nextensor mechanism.  He developed no overt arthritic \nsymptoms in his right hip, fortunately, and his knee is \nsymptomatic, but not severely so....I have not seen him in \nseveral years and he reports that he did well enough with his \nhip replacement on the left and his reconstruction for \nacetabular and femoral fracture as well as the knee \nreconstruction for fracture to the point that he went back to \nwork.  He drives a truck that carries chicken entrails for Bozel.  \nThis requires him to work on a very slick floor as a result of \nspillage of this cargo.   \nOn September 13, 2016, the patient slipped and fell on a \nconcrete floor and injured his left knee as well as his left \nshoulder.... \nIMPRESSION:   \n1.  Subacute fracture of the left patella at the proximal pole \nthat is incomplete with avulsion of a small patellar fragment \nand possible quadriceps tear. \n2.  Posttraumatic arthrosis of the left shoulder with limitation of \nmotion.  No fracture or over structural change. \n3.  Old left total hip replacement with subacute trauma.  No \nfractures or bony lesions, and no loosening. \n\nHOUSE - H208370  3\n  \n \n \n4.  Severe, old, posttraumatic arthrosis of the right hip with \nretained acetabular plate and screws.   \n5.  Healed fracture of the right femur with retained \nintramedullary rod, antegrade. \n6.  Severe posttraumatic arthrosis of the right knee.   \n \nThe patient has significant orthopaedic pathology in his right \nhip and knee secondary to trauma in 1997, with retained \nhardware as recorded above.  He is in today because of the \nleft knee from an apparent tear of the quadriceps tendon that \noccurred during a fall in September of 2016.... \nThe posttraumatic arthrosis that is radiographically quite \nsevere in the left knee and the right hip does not appear to be \ndirectly affected by the fall in September of 2016, in which he \nlanded on his left knee, hip, and shoulder.  The degeneration \nof the right hip and the right knee may eventually require \nreplacement arthroplasty.... \n \n It was noted on May 11, 2022, “Knee bone on bone on the right; Lots \nof pain all the time; Pt is not helpful; walking is hard after 1/2 day; can go \nback out after sitting 2 yrs; Last injection was 7-10 yrs ago; 1 mo benefit.”   \nThe parties stipulated that the claimant “sustained a compensable \ninjury to his right knee” on June 15, 2022.  The claimant testified on direct \nexamination: \nQ.  Would you briefly describe to the judge the accident that \noccurred on June 15, 2022. \nA.  I was pre-tripping my trailer....And I hooked up my truck \nand go to dolly the landing gear up and turned around and \nstepped in a hole that I didn’t see.... \nQ.  When you stepped in that hole, what happened? \nA.  I heard a pop and I twisted it a little bit there....My [right] \nknee swelled up.     \n \n Dr. Trent Johnson noted on July 15, 2022: \n\nHOUSE - H208370  4\n  \n \n \nMr. House is here for evaluation of his right knee.  He reports \na pain in his right knee.  The patient has a history of stepping \nin a trailer rut, sustained twisting injury to his right knee.  \nSince that time, he has had medial-sided knee pain.  The \npatient reports aching and throbbing, worse with \nweightbearing and ambulating.  This pain is mainly about the \nmedial aspect of the knee.  He has history of posttraumatic \narthritis of the knee.... \nIMAGING:  X-rays of the right knee show severe end-stage \ntricompartmental arthritis of his knee.  There is joint space \nnarrowing and varus deformity, osteophyte formation, and \nsubchondral sclerosis.  There is an intramedullary rod present \nin his femur.  He has no acute fractures or dislocations.   \nIMPRESSION/DIAGNOSIS:  50-year-old gentleman with \nexacerbation of his arthritis in his right knee.  Treatment \noptions were discussed at this time and include a steroid \ninjection.   \n \n Dr. Jonathan Creech reported on or about August 30, 2022: \n50-year-old male past med history of hypertension and \nsurgical history of a left total hip arthroplasty with right knee \npain for years.  He had a twisting injury at work on June 15 \nand has exacerbated his chronic knee pain.  His right knee \npain is moderate to severe, sometimes dull, sometimes sharp \npain that is chronic, steady, improved with rest, and worse \nwith activities.  [Has] tried NSAIDs, Tylenol, and a \ncorticosteroid injection the last was on July 15.... \nX-rays of the right knee demonstrate varus alignment with \nbone-on-bone arthritis the medial compartment.  There is a \nprevious antegrade femoral nail with a distal interlocking \nscrew.  There are osteophytes, subchondral sclerosis, and \ncysts.... \nThis is a Worker’s Compensation injury.  His right knee \nosteoarthritis is a degenerative disease over multiple years.  It \nis possible that he has now acute on chronic pain from a \nmeniscal injury or other soft tissue injury on top of his arthritis.   \n \n\nHOUSE - H208370  5\n  \n \n \n Dr. Creech performed surgery on November 16, 2022:  “Right \nRobotic Total Knee Arthroplasty.”  The pre- and post-operative diagnosis \nwas “Right Knee Osteoarthritis.” \n The claimant testified that he benefitted from surgery performed by \nDr. Creech.     \n Dr. Creech assessed and planned the following on or about February \n16, 2023: \nX-rays of the right knee demonstrate total knee arthroplasty \nwith appropriate alignment and positioning.  No complicating \nfeatures. \n50-year-old male with past medical history of hypertension \nnow 3 months out status post right total knee arthroplasty \ndoing well.  His pain is controlled.  He is happy with his \nresults.  He states he is having difficulty bending his knee to \nget into his truck. \nDiscussed returning to work for sedentary duty for 3 weeks \nand then returning to full duty.  Physical therapy ordered to try \nto increase flexion.  He would like to return to clinic in 6 weeks \nfor a recheck.... \n \n An IMPAIRMENT EVALUATION SUMMARY – Lower Extremity was \nperformed at Functional Testing Centers, Inc. on April 19, 2023.  It was \nnoted at that time, “Mr. House reports injury at work when he stepped in a \nhole while at work resulting in the onset of right knee pain.”  An \nOccupational Therapist and a Certified Senior Disability Analyst concluded, \n“The guides recommend using the section that provides the greater \nimpairment.  In Mr. House’s case, the Diagnosis based estimate impairment \nis the greatest impairment and is the most appropriate, applicable \n\nHOUSE - H208370  6\n  \n \n \nimpairment for this patient.  This results in a 15% Whole Person, 37% \nLower Extremity impairment as a result of this work related injury.”   \nThe parties stipulated that the claimant “has been assigned an \nimpairment rating of 37% to his right lower extremity.”   \n A pre-hearing order was filed on June 28, 2023.  According to the \npre-hearing order, the claimant contended that he was “entitled to \npermanent partial disability benefits for his compensable injury and that his \nattorney is entitled to the statutory fees.”   \n The respondents contended that “all appropriate benefits have been \npaid.  The claimant suffered a twisting injury to his right knee resulting in a \nmeniscal tear.  Prior to his injury, he had surgery on his right knee and had \na prior diagnosis of osteoarthritis which was deemed to be bone on bone.  \nDr. Creech’s report of 8/30/22 indicated the claimant has had chronic right \nknee pain for years.  Medical reports, including the surgical report, support \nthe diagnosis of osteoarthritis being the sole need for the total knee \nreplacement.  In light of this, it is respondents’ position that the claimant’s \nwork related meniscal injury is not the major cause of the need for the total \nknee replacement or the permanent rating that has been assigned.  Thus, it \nis respondents’ position that they are not liable for that impairment rating.”   \n The parties agreed to litigate the following issues: \n1.  Claimant’s entitlement to permanent disability benefits in \nan amount equal to 37% to the lower extremity. \n\nHOUSE - H208370  7\n  \n \n \n2.  Attorney’s fee.   \n \n After a hearing, an administrative law judge filed an opinion on \nOctober 2, 2023.  The administrative law judge found that the claimant \nfailed to prove he was entitled to permanent partial disability benefits.  The \nclaimant appeals to the Full Commission. \nII.  ADJUDICATION \n Permanent impairment is any functional or anatomical loss remaining \nafter the healing period has been reached.  Johnson v. Gen. Dynamics, 46 \nArk. App. 188, 878 S.W.2d 411 (1994).  The Commission has adopted the \nAmerican Medical Association Guides to the Evaluation of Permanent \nImpairment (4\nth\n ed. 1993) to be used in assessing anatomical impairment.  \nSee Commission Rule 34; Ark. Code Ann. §11-9-521(g)(Repl. 2012).  It is \nthe Commission’s duty, using the Guides, to determine whether the \nclaimant has proved he is entitled to a permanent anatomical impairment.  \nPolk County v. Jones, 74 Ark. App. 159, 47 S.W.3d 904 (2001).   \n Any determination of the existence or extent of physical impairment \nshall be supported by objective and measurable physical findings.  Ark. \nCode Ann. §11-9-704(c)(1)(Repl. 2012).  Objective findings are those \nfindings which cannot come under the voluntary control of the patient.  Ark. \nCode Ann. §11-9-102(16)(A)(i)(Repl. 2012).  Although it is true that the \nlegislature has required medical evidence supported by objective findings to \n\nHOUSE - H208370  8\n  \n \n \nestablish a compensable injury, it does not follow that such evidence is \nrequired to establish each and every element of compensability.  Stephens \nTruck Lines v. Millican, 58 Ark. App. 275, 950 S.W.2d 472 (1997).  All that \nis required is that the medical evidence be supported by objective medical \nfindings.  Singleton v. City of Pine Bluff, 97 Ark. App. 59, 244 S.W.3d 709 \n(2006).  Medical opinions addressing impairment must be stated within a \nreasonable degree of medical certainty.  Ark. Code Ann. §11-9-\n102(16)(B)(Repl. 2012). \n Permanent benefits shall be awarded only upon a determination that \nthe compensable injury was the major cause of the disability or impairment.  \nArk. Code Ann. §11-9-102(F)(ii)(a)(Repl. 2012).  “Major cause” means \n“more than fifty percent (50%) of the cause,” and a finding of major cause \nmust be established according to the preponderance of the evidence.  Ark. \nCode Ann. §11-9-102(14)(Repl. 2012).  Preponderance of the evidence \nmeans the evidence having greater weight or convincing force.  \nMetropolitan Nat’l Bank v. La Sher Oil Co., 81 Ark. App. 269, 101 S.W.3d \n252 (2003). \n An administrative law judge found in the present matter, “2.  \nClaimant has failed to meet his burden of proving by a preponderance of \n[the] evidence that he is entitled to permanent partial disability benefits in an \namount equal to 37% to the lower extremity for his compensable injury.”  \n\nHOUSE - H208370  9\n  \n \n \nThe Full Commission finds that the claimant proved he was entitled to a \nrating for permanent anatomical impairment in the amount of 37% to the \nright lower extremity.   \n The claimant sustained injuries which included a right kneecap \nfracture as the result of a motor vehicle accident occurring in 1997.  Dr. \nLong noted in December 2016 that the claimant had undergone an \narthrotomy of the right knee following the 1997 accident.  Dr. Long’s \nimpression in 2016 included “6.  Severe posttraumatic arthrosis of the right \nknee.”  It was noted in May 2022 that the claimant suffered from chronic \npain in his right knee, “Knee bone on bone on the right.”   \n The Full Commission therefore recognizes that the claimant suffered \nfrom a pre-existing arthritic condition in his right knee.  However, the parties \nstipulated that the claimant “sustained a compensable injury to his right \nknee” while employed with the respondents on June 15, 2022.  The \nclaimant testified that the June 15, 2022 compensable injury occurred as \nthe result of a twisting motion after he stepped into a hole.  Dr. Johnson \nexamined the claimant on July 15, 2022 and reported a “varus deformity” in \nthe claimant’s right knee.  The Full Commission finds that the “varus \ndeformity” reported by Dr. Johnson was a supporting objective medical \nfinding.  See Singleton, supra.  Dr. Long had expressly noted in 2016 with \nregard to the claimant’s right knee, “He does not have any angular \n\nHOUSE - H208370  10\n  \n \n \ndeformity.”  The claimant was suffering from an objective varus deformity \nfollowing the June 15, 2022 stipulated compensable injury to the right knee.  \nDr. Johnson’s impression on July 15, 2022 was “exacerbation of his arthritis \nin his right knee.\"   \n Dr. Creech performed a \"Right Robotic Total Knee Arthroplasy” on \nNovember 16, 2022.  The claimant reported benefit from surgery performed \nby Dr. Creech, and post-surgical improvement is evidence demonstrating \nthat surgical treatment was reasonably necessary in connection with the \ncompensable injury.  Hill v. Baptist Med. Ctr., 74 Ark. App. 250, 48 S.W.3d \n544 (2001).   \n As we have discussed, an IMPAIRMENT EVALUATION SUMMARY \n– Lower Extremity was performed at Functional Testing Centers, Inc. on \nApril 19, 2023.  Following the IMPAIRMENT EVALUATION SUMMARY, the \nclaimant was assigned permanent anatomical impairment in the amount of \n“15% Whole Person, 37% Lower Extremity impairment as a result of this \nwork related injury.”  An Occupational Therapist and a Certified Senior \nDisability Analyst concluded in part that the claimant had sustained a \n“Flexion” impairment resulting from “PASSIVE Range of Motion” of the right \nknee.  “Passive” range of motion performed by an examiner is not under the \nclaimant’s voluntary control and can be interpreted as objective medical \nevidence establishing anatomical impairment.  See Hayes v. Wal-Mart \n\nHOUSE - H208370  11\n  \n \n \nStores, 71 Ark. App. 207, 29 S.W.3d 751 (Ark. 2000).  See also Evans v. \nFirestone Bldg. Prods., 2020 Ark. App. 80, 594 S.W.3d 139.  The Full \nCommission finds in the present matter that the 15% whole-person, 37% \nlower extremity impairment was supported by objective medical findings to \ninclude the post-compensable injury “varus deformity” reported by Dr. \nJohnson and the passive range of motion deficit observed by the evaluators \nat Functional Testing Centers, Inc. \n The respondents argue on appeal that the major cause of the \nclaimant’s permanent anatomical impairment was the preexisting arthritic \ncondition in the claimant’s right knee.  The respondents cite as authority \nHickman v. Kellogg, Brown & Root, 372 Ark. 501, 277 S.W.3d 591 (2008).  \nIn Hickman, the Arkansas Supreme Court affirmed the Commission’s \ndecision that the claimant failed to prove his compensable injury was the \nmajor cause of knee-replacement surgery and a resulting anatomical \nimpairment rating.  The Supreme Court’s holding in Hickman is readily \ndistinguishable from the evidence in the present matter.  In Hickman, for \ninstance, a treating physician had testified that pre-existing degenerative \nchanges were the major cause of the claimant’s surgery and impairment.  \nThere was no such testimony in the present matter.  In fact, there were no \nexpert opinions of record contradicting the conclusion that the claimant had \n\nHOUSE - H208370  12\n  \n \n \nsustained permanent anatomical impairment “as a result of this work related \ninjury.”   \n The evidence in the present matter is similar to the evidence \npresented in Ark. Forestry Comm. v. Lindsey, 2021 Ark. App. 497, 638 \nS.W.3d 333, where the Court of Appeals distinguished the Court’s holding \nin Hickman, supra.  The Court in Lindsey affirmed the Commission’s finding \nthat the claimant had sustained a permanent anatomical impairment as a \nresult of his compensable injury.  The claimant in Lindsey proved he was \nentitled to a permanent anatomical impairment despite a pre-existing \ndegenerative condition.   \n The Full Commission finds in the present matter that the claimant \nproved by a preponderance of the evidence that he sustained a 15% whole-\nperson, 37% lower extremity impairment as a result of his compensable \ninjury.  The Full Commission finds that this rating was consistent with the 4\nth\n \nEdition of the Guides at Table 41, p. 3/78.  The permanent rating was \nsupported by objective and measurable physical findings, including a varus \ndeformity and passive range of motion deficit.  The claimant proved that the \nJune 15, 2022 compensable injury was the major cause of his permanent \nanatomical impairment.  The permanent impairment assessed by the \nevaluators at Functional Testing Centers, Inc. was not the result of a prior \ninjury or pre-existing condition.    \n\nHOUSE - H208370  13\n  \n \n \n After reviewing the entire record de novo, the Full Commission \nreverses the administrative law judge’s opinion.  The Full Commission finds \nthat the claimant proved he sustained permanent anatomical impairment in \nthe amount of 37% to the right lower extremity as a result of the \ncompensable injury sustained by the claimant on June 15, 2022.  The \nclaimant’s attorney is entitled to fees for legal services in accordance with \nArk. Code Ann. §11-9-715(a)(Repl. 2012).  For prevailing on appeal to the \nFull Commission, the claimant’s attorney is entitled to an additional fee of \nfive hundred dollars ($500), pursuant to Ark. Code Ann. §11-9-715(b)(Repl. \n2012). \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 he sustained a thirty-seven percent (37%) permanent \nanatomical impairment to his lower right extremity. \n\nHOUSE - H208370  14\n  \n \n \n \"Permanent impairment\" has been defined as \"any permanent \nfunctional or anatomical loss remaining after the healing period has \nended.\"  Carrick v. Baptist Health, 2022 Ark. App. 134, 643 S.W.3d 466 \n(2022).  \nAny determination of the existence or extent of physical impairment \nmust be supported by objective and measurable physical or mental \nfindings.  Ark. Code Ann. §11-9-704(c)(1)(B).  \"Objective findings\" are those \nfindings that cannot come under the voluntary control of the patient, and \ncomplaints of pain are not to be considered objective medical findings.  Ark. \nCode Ann. §11-9-102(16)(A); Reed v. First Step, Inc., 2019 Ark. App. 289, \n577 S.W.3d 424 (2019).  \nThe Commission is authorized to decide which portions of the \nmedical evidence to credit and to translate this evidence into a finding \nof permanent impairment using the American Medical Association Guides \nto the Evaluation of Permanent Impairment (4th ed. 1993); thus, the \nCommission may assess its own impairment rating rather than rely solely \non its determination of the validity of ratings assigned by \nphysicians.  Carrick, 2022 Ark. App. 134, 643 S.W.3d 466.  \"Permanent \nbenefits shall be awarded only upon a determination that the compensable \ninjury was the major cause of the disability or impairment.\"  Ark. Code Ann. \n\nHOUSE - H208370  15\n  \n \n \n§11-9-102(4)(F)(ii)(a); Leach v. Cooper Tire & Rubber Co., 2011 Ark. App. \n571 (2011). \n In the present case, the claimant has failed to meet his burden of \nproving that his compensable injury was the major cause of his alleged \npermanent impairment.  Prior to his work-related injury, the claimant was \ndiagnosed with “severe posttraumatic arthrosis of the right knee from a \nfracture of the femur and injury around the patella that occurred in a motor \nvehicle accident in the 1990s.”  (Reps. Ex. 1, P. 9).  \nOn May 11, 2022, just prior to his on-the-job accident, Dr. Terri \nLewelling classified the claimant’s condition as “[k]nee bone bone on the \nright; Lots of pain all the time; Pt is not helpful; walking his hard after 1/2 \nday.” (Resp. Ex. 1, P. 13). \n After the claimant’s compensable injury, Dr. Trent Johnson noted in \nhis report dated July 15, 2022, the claimant’s pre-existing degenerative \ncondition, finding “[s]evere end-state tricompartmental arthritis of his right \nknee.  There is joint space narrowing and varus deformity, osteophyte \nformation, and subchondral sclerosis.”  (Resp. Ex. 1, P. 16).  Post-accident \nx-rays of his right knee revealed “varus alignment with bone-on-bone \narthritis of the medial compartment.  There is a previous antegrade femoral \nnail with a distal interlocking screw.  There are osteophytes, subchondral \nsclerosis, and cysts.”  (Resp. Ex. 1, P. 28).  Dr. Jonathan Creech’s pre-\n\nHOUSE - H208370  16\n  \n \n \noperative findings state that the claimant’s “right knee osteoarthritis is a \ndegenerative disease over multiple years... with right knee pain for years.” \nId. \n Considering the medical records leading up to the claimant’s injury \nand the claimant’s complaints of debilitating pain just thirty-five (35) days \nprior to his work-related injury, it is clear that the major cause of the \nclaimant’s permanent partial impairment is his pre-existing arthrosis and \nosteoarthritis, and the claimant has failed in meeting his burden of proof in \nthis matter. \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. H208370 JASON HOUSE, EMPLOYEE CLAIMANT PENSKE LOGISTICS, INC., EMPLOYER RESPONDENT OLD REPUBLIC INSURANCE COMANY, INSURANCE CARRIER/TPA RESPONDENT OPINION FILED APRIL 9, 2024","fetched_at":"2026-05-19T22:29:45.737Z","links":{"html":"/opinions/full_commission-H208370-2024-04-09","pdf":"https://labor.arkansas.gov/wp-content/uploads/House_Jason_H208370_20240409.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/"}}