Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Arkansas Department of Correction v. Clary

Court of Appeals of Arkansas, Division III

January 31, 2018



          Charles H. McLemore, Jr., for appellants.

          Laura Beth York, for appellee.

          RITA W. GRUBER, Chief Judge

         Appellants 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.

         At the 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 ibuprofen.

         When he 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.

         When 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.

         Sergeant 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.

         In his 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 for himself.

         The 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.

         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 standing.

         Lieutenant 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. Hard worker."

         The 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 knee[1]and if the results confirmed meniscus involvement, ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.