Fulton County Hospital and Risk Management Services v. Melissa J. Herring

2020 Ark. App. 221, 597 S.W.3d 162

• Court: Court of Appeals of Arkansas
• Decided: April 8, 2020
• Status: Published

Opinion

Cite as 2020 Ark. App. 221 Reason: I attest to the accuracy and integrity of this document ARKANSAS COURT OF APPEALS Date: 2021-06-21 14:59:42 Foxit PhantomPDF Version: DIVISION I 9.7.5 No. CV-19-763

FULTON COUNTY HOSPITAL AND Opinion Delivered: April 8, 2020 RISK MANAGEMENT SERVICES APPEAL FROM THE ARKANSAS APPELLANTS WORKERS’ COMPENSATION COMMISSION V. [NO. G707822]

MELISSA J. HERRING AFFIRMED APPELLEE

MEREDITH B. SWITZER, Judge

Fulton County Hospital and its insurance carrier, Risk Management Resources

(collectively “Hospital”), appeal the decision of the Arkansas Workers’ Compensation

Commission (“Commission”) that Melissa Herring suffered a compensable left-knee injury

on May 17, 2017, arguing that substantial evidence does not support the Commission’s

determination. We affirm the Commission’s decision.

I. Hearing Testimony

Herring testified that she had worked as a licensed practical nurse for the Hospital for

almost ten years. In her deposition, Herring explained that on May 17, 2017, she was

working a twelve-hour day shift; she was busy performing her duties, including delivering

meal trays, dispensing medications, attending to patients, and charting medical information;

and she was subject to being interrupted during these tasks by call lights, phone calls, and

questions from patients’ families. She said that around 5:30 p.m., a patient called her for

assistance to move to the bedside commode. When the patient collapsed during the transfer, Herring held the patient in a pivoting position with her knees on the floor to prevent the

patient from falling to the floor while she completed the transfer. Herring said that during

the transfer, she felt a “pop” in the right side of her left knee. Although she felt a tightening

on the inside of her knee, she did not report an injury and continued her shift for the next

one and a half hours. She did not tell anyone about her injury; she began icing her knee

that night for thirty minutes every two hours and kept it elevated, thinking that it would

resolve itself.

Herring testified that when she hurt her knee, all of her supervisors were gone for

the day. She said that she told Susan Neely, the assistant director of nursing who was also

Herring’s supervisor, about the incident five days after it occurred, but Neely told her it was

“too late” to report the incident. Herring stated that within a week of the incident she also

spoke with Melanie Stone, the charge nurse on duty the day she was injured, and Mandy

Kauffman, a registered nurse at the hospital, and told them that she had hurt her knee at

work. Stone told Herring to tell Neely. Herring told Stone she had already told Neely and

was told that it was too late to do anything about it. Herring said a couple of weeks after

her injury, a woman named Regina from the human-resources department gave her some

workers’-compensation forms, which she completed and returned; Regina then sent the

forms to MedCor and instructed Herring to call MedCor and report her injury. Herring

said that when she spoke to MedCor, she reported the date and time the injury occurred

and was asked if she had seen a doctor. She reported that she had seen Dr. Kauffman, and

she was told that was okay.

2 Herring testified that she saw her primary-care physician, Dr. Kauffman, who

referred her to Dr. Rauls. She saw Dr. Rauls on June 9, 2017, and Dr. Rauls performed a

left-knee scope on June 16, 2017. Herring testified that Dr. Rauls’s records indicated she

injured her knee after feeling a pop at work. Herring changed physicians to Dr. Chris

Arnold, who saw her on March 29, 2018. He performed a scope and surgery on April 11,

2018, and a total knee replacement on October 19, 2018. She denied having any knee

issues prior to the May 17 incident.

On cross-examination, Herring admitted that in her deposition she stated she first

sought medical treatment from the Hospital emergency room (“ER”), but her testimony at

the hearing was that she saw Dr. Kauffman first at Salem Family Clinic on May 26, 2017,

nine days after her injury, and he referred her to an orthopedic physician. Herring

acknowledged that Dr. Kauffman’s report did not indicate she told him that she was injured

at work, and that his nurse practitioner diagnosed her with degenerative joint disease on

that visit.

Herring agreed that when an incident occurred during a patient transfer it was

considered a reportable incident; however, she did not report it. She also admitted she did

not tell a supervisor or anyone else that she had hurt her knee on May 17 because she did

not think anything would come of it. Although Herring injured herself after 5:30 p.m.,

there was always a charge nurse on duty after that time, and Herring admitted she should

have reported her injury to the charge nurse but did not do so. Herring said she did not

work on May 18 and did not recall when she worked next except it was after she had gone

to the ER.

3 A May 27, 2017 Hospital ER report indicated that Herring presented with left-knee

pain, had been seen by her primary-care physician the day before and was diagnosed with a

Baker’s cyst on her left knee, had fluid drained from the knee, and was given a steroid

injection. The report further stated Herring informed the ER that she had stepped off the

porch that day and felt a pop, which Herring denied. Herring claimed she told the nurse

that she was injured at work transferring a patient.

Herring then testified that she could not recall if she had worked from May 18 to

May 27, but she claimed she reported her injury to Regina Caldwell and Susan Neely via

text message prior to going to the ER on May 27. Herring testified she was seen in Dr.

Kauffman’s clinic on May 31, 2017, by the nurse practitioner who recorded the following

history for her left knee: Herring was walking, heard a pop in her knee, the knee began to

hurt, had a “dull ache” all the time, there was “stabbing” pain when she walked, and there

was swelling, causing Herring to use crutches. Herring testified that her knee began to swell

the night she hurt it. The first mention of a work-related incident in Dr. Kauffman’s records

was not until December 12, 2017. That record indicated that she had developed pain and

swelling at work on May 17, 2017, had her knee drained, and was referred to Dr. Rauls.

Thomas Cooper, the Hospital safety manager, testified that the Hospital asks

employees to report a work-related injury to a direct supervisor within twenty-four hours

or to the charge nurse if the employee’s direct supervisor is unavailable. Cooper stated that

according to Hospital records, Herring worked full shifts on May 17, 18, 23, and 24, 2017,

and she worked five hours on May 31 because that was the day she was seen by Dr.

Kauffman. Herring disputed she worked those days, stating that she might have been

4 scheduled to work those days but did not do so. Cooper also stated that the incident

between Herring and the patient absolutely warranted a patient-incident report, but he

admitted that while a majority of the incidents are reported, some are not.

An MRI was performed on June 5, 2017. It indicated a root tear of the posterior

horn of the medial meniscus that was at least high-grade partial; adjacent edema within the

soft tissues; moderate-sized joint effusion; sprain of the medial collateral ligament; and

chondromalacia of the medial compartment. On June 6, Dr. Kauffman referred her to Dr.

Rauls for the medial meniscus tear. Dr. Rauls performed a left-knee arthroscopic abrasion

chondroplasty medial femoral condyle; his opinion was that the medial meniscus overall

looked good, and the ACL was intact.

Herring was seen by Dr. Casey Wagner on March 29, 2018; x-rays were taken on

her left knee, and a second MRI was ordered. On April 6, Herring returned to Dr. Wagner;

the MRI indicated a medial meniscus tear including a tear of the posterior horn root,

moderate to severe weightbearing medial femorotibial osteo chondrosis as well as irregular,

moderate grade chondrosis along the medial patella, small to moderate knee effusion.

Herring saw Dr. Arnold on April 10, who noted Herring had injured her knee at work ten

months prior; she had undergone a left-knee scope, chondroplasty in June 2017 that offered

no relief of pain; and despite conservative treatment, she continued to have pain and swelling

in her knee. Dr. Arnold opined that Herring had left-knee pain secondary to a medial

meniscus tear and early osteoarthritis, and the MRI showed a medial meniscus tear including

a tear of the posterior horn root, moderate to severe weightbearing medial femorotibial

osteochondrosis as well as irregular, moderate chondrosis along the medial patella, small to

5 moderate knee effusion. Dr. Arnold performed the second scope on Herring’s left knee on

April 11, and her total left-knee replacement on October 19.

II. Commission’s Decision

The administrative law judge (ALJ) denied Herring benefits, finding she failed to

satisfy her burden of proving that a work-related injury arising from her employment was

the cause of her left-knee injury. The Commission reversed the ALJ’s denial of benefits,

finding Herring proved by a preponderance of the evidence she sustained a compensable

left-knee injury on May 17, 2017. The Commission’s decision, in pertinent part, states:

A claimant is not required in every case to establish the causal connection between a work-related incident and an injury with an expert medical opinion. See Wal-Mart Stores v. VanWagner, 337 Ark. 443, 990 S.W.2d 522 (1999). The Arkansas courts have long recognized that a causal relationship may be established between an employment related incident and a subsequent physical injury based on evidence that the injury manifested itself within a reasonable period of time following the incident so that the injury is logically attributable to the incident, where there is no other reasonable explanation for the injury. Hall v. Pittman Construction Co., 235 Ark. 104, 357 S.W.2d 263 (1962).

The evidence preponderates that the claimant’s left knee injury satisfies the requirements of compensability. The claimant’s injury was an accidental injury sustained while the claimant was performing employment services. The claimant testified that she sustained an injury at work on May 17, 2017 when she was assisting a resident onto a bedside commode. The claimant testified that her knew began swelling the same night of the incident. The claimant sought medical treatment nine days after her workplace accident. An MRI taken on June 5, 2017, revealed a root tear of the posterior horn of the medial meniscus in the claimant’s left knee. Given the closeness in proximity of the time between the work accident and the complaint of left knee swelling and pain, the Full Commission finds that the claimant’s injury was caused by her workplace accident.

Also, the injury was an internal or external physical injury that is supported by objective findings in the form of a left knee medial meniscus tear. In addition, the claimant’s left knee injury required medical treatment in the form of prescription medication, physical therapy, and surgical intervention.

6 Further, the injury arose out of and in the course of employment. The claimant testified that when she was helping a resident up from a chair, the resident collapsed on her. To keep the resident from falling, the claimant held her with her weight in a pivoting position. The claimant’s knees stayed on the floor as she placed the resident on the bedside commode. During the incident the claimant felt a pop in the right side of her left knee. The claimant’s testimony is supported by the history provided to her medical providers and documents in the medical records.

The respondents argued that the claimant failed to prove that her left knee injury arose out of her employment, noting an alleged delay in reporting the workplace incident. Regarding the delay in reporting her injury to the respondent- employer, the claimant explained that, although it was standard procedure for each floor of the facility to be staffed with two nurses at a time, on the day the claimant’s accident occurred, she was the only nurse on the floor. The claimant testified further that when the needs of the residents are demanding, there isn’t time to do anything other than care for the residents. Additionally, the claimant’s accident happened after normal business hours, when there were no supervisors available to whom she could report the accident.

In addition, the claimant offered credible testimony that she reported her workplace accident to three of the respondent-employer’s employees within one week of the incident, i.e., Susan Neely, Melanie Stone, and Mandy Kauffman. Instead of offering the claimant workers’ compensation paperwork, which would have been the appropriate response, Neely informed the claimant that it was “too late” to address the work-related injury. The claimant testified credibly that she informed the respondent-employer of the workplace accident. Therefore, we find that the claimant gave notice to the employer within a reasonable time period pursuant to the requirements set forth in A.C.A. § 11-9-701.

The respondents further argue that the claimant’s injury was not an acute injury, but instead was degenerative in nature. The claimant was in fact diagnosed with degenerative joint disease in her left knee; however, a pre-existing disease of infirmity does not disqualify a claim if the employment aggravated, accelerated, or combined with the disease or infirmity to produce the disability for which compensation is sought. See Nashville Livestock Commission v. Cox, 302 Ark. 69, 787 S.W.2d 664 (1990); Conway Convalescent Center v. Murphree, 266 Ark. 985, 585 S.W.2d 462 (Ark. App. 1979); St. Vincent Medical Center v. Brown, 53 Ark. App. 30, 917 S.W.2d 550 (1996). The employer takes the employee as he finds him. Murphree, supra. The claimant worked for the respondent-employer as a nurse for ten years without restrictions or limitations. The claimant testified that she had not had any problems with her left knee prior to the May 17, 2017 workplace accident. The claimant’s testimony is supported by the fact that there was no evidence in the record that she had previously sought or received any treatment for her left knee. Even though the claimant suffered from a previously asymptomatic degenerative 7 condition, she clearly suffered a meniscus tear that met the requirements for compensability.

Therefore, for the foregoing reasons, the Full Commission finds that the claimant proved by a preponderance of the evidence that she sustained a compensable left knee injury.

III. Standard of Review

In appeals involving workers’-compensation claims, this court views the evidence in

the light most favorable to the Commission’s decision and affirms the decision if it is

supported by substantial evidence. Webb v. Wal-Mart Assoc., Inc., 2018 Ark. App. 627, 567

S.W.3d 86. Substantial evidence is that which a reasonable mind might accept as adequate

to support a conclusion. Greene Cty. Judge v. Penny, 2019 Ark. App. 552, 589 S.W.3d 478.

The issue on review is not whether the appellate court might have reached a different result;

we affirm if reasonable minds could reach the Commission’s conclusion. Ark. Highway &

Transp. Dep’t v. Wiggins, 2016 Ark. App. 364, 499 S.W.3d 229.

To prove the occurrence of a specific-incident compensable injury, the claimant

must establish that (1) an injury occurred arising out of and in the scope of employment; (2)

the injury caused internal or external harm to the body that required medical services or

resulted in disability or death; (3) the injury is established by medical evidence supported by

objective findings; and (4) the injury was caused by a specific incident and is identifiable by

time and place of occurrence. Pafford Med. Billing Servs., Inc. v. Smith, 2011 Ark. App. 180,

381 S.W.3d 921.

Questions concerning the credibility of witnesses and the weight to be accorded their

testimony are within the exclusive province of the Commission, and this court defers to the

Commission’s conclusions. Penny, supra. If there are contradictions in the evidence, it is 8 within the province of the Commission to reconcile conflicting evidence and to determine

the true facts. Georgia-Pacific Corp. v. Carter, 62 Ark. App. 162, 969 S.W.2d 677 (1998).

The Commission has the authority to accept or reject medical opinions, and its resolution

of the medical evidence has the force and effect of a jury verdict. Lonoke Exceptional Sch.,

Inc. v. Coffman, 2019 Ark. App. 80, 569 S.W.3d 378. However, the Commission may not

arbitrarily disregard medical evidence. Id. In order for an administrative action to be invalid

as arbitrary, it must either lack any rational basis or hinge on a finding of fact based on an

erroneous view of the law; an act is not arbitrary simply because the appellate court would

have decided differently. Id.

IV. Discussion

The Hospital asserts the evidence does not support the Commission’s finding that

Herring sustained a compensable injury, arguing that the Commission took Herring’s

testimony “at face value” and ignored the fact that she failed to report her injury, even

though she could have reported her injury to the charge nurse on duty. The Hospital

contends Herring’s “excuse” for not reporting her injury was not credible and cast doubt

on whether the injury had occurred, calling the existence of the injury “highly suspect” and

arguing Herring’s testimony was inconsistent, unsupported, self-serving, and

uncorroborated. The Hospital claims the Commission arbitrarily disregarded the

inconsistencies and contradictions in Herring’s testimony unfavorable to her; that the

medical records were not consistent with a work-related injury; and that because reasonable

persons could not find otherwise, there was no substantial evidence to support an award of

benefits to Herring.

9 Although the Hospital asserts the Commission should not have found Herring’s

version of events credible, such determinations are within the Commission’s province, and

this court is bound by those decisions. Penny, supra. Herring’s failure to immediately report

her injury does not preclude a finding that Herring suffered a work-related injury—it simply

goes to the weight of the evidence. The Commission was aware of inconsistencies in the

evidence but found Herring’s testimony as to how she injured her left knee to be credible;

this court will not reweigh those credibility determinations.

The Hospital also argues that the Commission’s finding that Herring had met her

burden of proving that she sustained a compensable injury given the close proximity of the

time between Herring’s alleged injury and the swelling and pain is not supported by

substantial evidence. This appears to be an argument regarding whether Herring proved a

causal relationship between her need for treatment and her injury. Objective medical

evidence is necessary to establish the existence and extent of an injury, but not necessary to

establish the causal relationship between the injury and a work-related accident. Wal-Mart

Stores v. Van Wagner, 337 Ark. 443, 990 S.W.2d 522 (1999). If objective medical evidence

establishes the existence of an injury, and a preponderance of the other nonmedical evidence

establishes a causal relation to a work-related incident, that is sufficient proof to sustain a

workers’-compensation claim. Id.

The Hospital does not argue there are no objective medical findings that Herring

suffered an injury. The question of whether there was a causal connection again hinges on

the Commission’s credibility determinations, and it found Herring’s testimony credible as

10 to how her injury occurred. There is substantial evidence to support the Commission’s

award of benefits; therefore, we affirm.

Affirmed.

GLADWIN and MURPHY, JJ., agree.

Barber Law Firm PLLC, by: Karen H. McKinney, for appellant.

Frederick S. “Rick” Spencer, for appellee.