ARKANSAS DEPARTMENT OF CORRECTION AND ARKANSAS INSURANCE DEPARTMENT, PUBLIC EMPLOYEE CLAIMS DIVISION APPELLANTS
FRANKLIN GYRONE CLARY APPELLEE
FROM THE ARKANSAS WORKERS' COMPENSATION COMMISSION [NO.
Charles H. McLemore, Jr., for appellants.
Beth York, for appellee.
W. GRUBER, Chief Judge
Arkansas Department of Correction (ADC) and Arkansas
Insurance Department Public Employee Claims Division appeal
from a decision of the Arkansas Workers' Compensation
Commission (Commission) adopting the decision of the
administrative law judge (ALJ) finding appellee Franklin
Clary had proved that he sustained a compensable left-knee
injury and ordering appellants to pay medical expenses and
temporary-total disability benefits (TTD). The only issue on
appeal is whether substantial evidence supports the
Commission's decision. We affirm.
time of the injury, appellee worked as a correctional officer
at the ADC. He testified that on Saturday, November 21, 2015,
he was escorting a prisoner downstairs along with his
supervisor, Sgt. Kevin Nunnery, when he felt a
"pop" in his left knee. He described how they
stopped for a minute, he rubbed his left knee, Sergeant
Nunnery looked at him, and then they proceeded to take an
inmate to the shower. He testified that he told Sergeant
Nunnery about his knee popping at that time and indicated
that it was protocol to inform the supervisor, but he did not
mention it again because they were shorthanded and he was
trying to finish his shift. While appellee knew that an
incident report needed to be filed, he explained that they
were shorthanded and busy at the time of the incident so he
continued working. He worked the entire shift but switched
with other officers in the control booth three times to get
off his knee. Appellee went home, iced his knee, and took
went to work the next day, he could walk, but his knee was
swollen and sore. He stated that he was assigned to the
control booth that day and reported to Lt. Nicola Kelly. He
testified that he and Lieutenant Kelly discussed the upcoming
Thanksgiving potluck and that he told her he was glad to be
in the control room because his knee was swollen from working
on Saturday. Appellee stated that Lieutenant Kelly did not
offer him workers' compensation paperwork, nor did he ask
for medical treatment because he did not know the severity of
his injury at that time. Appellee knew Sunday evening when he
got home that he needed to see a doctor because his knee was
hard to bend. On Monday morning, he saw Dr. Kirk Reynolds, an
orthopedic surgeon whom he had previously seen. Dr. Reynolds
drew fluid off the left knee and ordered work restrictions of
no bending and minimal standing. Appellee did not call
appellant on Monday morning when he realized it was a
workers' compensation claim because he knew he had to
give the work restrictions to his supervisor, and he was not
scheduled to work again until Wednesday, November 25.
appellee went to work on Wednesday, Lieutenant Kelly sent him
home because there was no light duty within his restrictions.
Later that day, he called human resources to ask about the
005-incident report, returned to complete it, and gave it to
Lieutenant Kelly. Appellee testified that his claim was
denied and he sought treatment on his own. He had surgery on
December 8 and was released by Dr. Reynolds to work with no
restrictions on January 18, 2016. His last day to work for
appellant was November 22, 2015, as he was terminated on
December 29, 2015. After he was released to work, appellee
began to work for Loomis, an armored-car company.
Nunnery testified at the hearing before the ALJ. He explained
that at the beginning of each day there was a short meeting
where he received assignments from the lieutenant and found
out which six officers he would supervise that day. He would
see those officers at the meeting and several times during
the shift, and all had radios to communicate if they needed
assistance or had an incident. He explained that taking the
inmates to the showers was part of the duties he would have
done with appellee, as it requires two officers for one
inmate. Sergeant Nunnery did not remember appellee reporting
an injury to his knee. If an injury had been reported, he
explained that he would have gone straight to the lieutenant,
called the company nurse, and completed the paperwork.
six or seven years as a sergeant and his thirteen years
working for the ADC, Sergeant Nunnery had never reported an
injury. He did not recall if they were busy that day, but he
stated that Saturdays were busy with showers and visitation
all day and that they were usually shorthanded. Sergeant
Nunnery did not recall appellee going to the control booth
that day, but indicated that they often traded out to give
the officer on the floor some relief as it was usually busy.
He testified that he would not file an incident report if
someone told him his or her knee had "popped" like
an ordinary joint pop and did not need medical attention. He
would file a report if someone told him his knee had
"popped out." He testified that if his knee had
popped and had a bit of soreness, he would not report that
last witness to testify at the hearing was Lieutenant Kelly,
who was supervisor over the entire shift. She had been in her
current position for about two years and had been a sergeant
the previous seven years. During these years as a supervisor,
she had reported several workplace injuries. She explained
that the procedure was to notify her as the supervisor,
complete a urinalysis, and call the company nurse to report.
At that point, the nurse would give a confirmation number and
send the worker for either medical attention or back to work.
The injured employee was required to fill out the form 005,
which could be signed by the sergeant but ultimately was
signed by the lieutenant.
Kelly was working on Saturday, November 21, and Sunday,
November 22. She recalled appellee reporting an injury to her
on Wednesday, November 25, when he was scheduled to return to
work. She questioned appellee as to why he did not report the
injury, but he stated that he had reported it to his
sergeant. Lieutenant Kelly explained that if appellee was
working with Sergeant Nunnery at the time of his injury, it
was the sergeant's responsibility to have the officer
complete the incident report and to notify the lieutenant.
The lieutenant would then bring the injured employee to the
office and call the company nurse. She indicated that
appellee likely worked the control booth on Sunday, November
22, as he had worked there numerous times. It was a standing
job requiring the officer to move side to side between two
control panels. She did not consider it to be lighter work,
but it did not require walking all over the prison or up and
down stairs. She acknowledged that sometimes there might be a
chair in the control booth, but that the job mostly required
Kelly recalled talking to appellee in the past about problems
with his leg as well as his heart and other illness, but he
never complained about not being able to work. Although she
could not recall specific days, she had talked to him about
his knee, and she told him about her knee problems and
scheduled knee surgery. When asked if appellee was a good
employee, she replied, "Very good to me. Good heart.
medical records indicate that appellee began seeing Dr.
Charles Clark for his right knee in 2006. Dr. Clark performed
surgery for patellofemoral syndrome on the right knee in
January 2006 and on the left knee in February 2006. Appellee
saw Dr. John Lytle for bilateral knee pain in November 2008.
There was no history of trauma, and the pain was worse in the
right knee. Results of the physical exam were consistent with
"early degenerative meniscus involvement." Dr.
Lytle recommended an MRI of the right kneeand if the results
confirmed meniscus involvement, ...