CLAIM NO. F007394
Before the Arkansas Workers’ Compensation Commission
OPINION FILED JANUARY 9, 2002
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE JAY TOLLEY, Attorney at Law, Fayetteville, Arkansas.
Respondents represented by the HONORABLE JAMES ARNOLD II, Attorney at Law, Fayetteville, Arkansas.
Decision of the Administrative Law Judge: Affirmed.
OPINION AND ORDER
Respondent appeals from a January 18, 2001 opinion of the Administrative Law Judge finding that claimant proved by a preponderance of the evidence that he sustained a compensable injury to his right shoulder.
The issues on appeal are whether claimant’s right shoulder difficulties are causally related to the employment or to a preexisting condition and whether the injury is established or supported by objective medical findings.
Claimant has the burden of proving by a preponderance of the evidence that his condition is causally related to his employment. Estridge v.Waste Management, 343 Ark. 276, 33 S.W.3d 167 (2000). Questions of credibility and the weight and sufficiency to be given evidence are matters within the province of the Workers’ Compensation Commission.Swift-Eckrich, Inc. v. Brock, 63 Ark. App. 188, 975 S.W.2d 857 (1998). The compensable injury must be established by medical evidence supported by objective findings. Ark. Code Ann. § 11-9-102(4)(D) (Supp. 2001). Objective findings are those which cannot come under the voluntary control of the patient. Ark. Code Ann. § 11-9-102(16)(A)(i) (Supp. 2001.) A preexisting disease or 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); Minor v. Poinsett Lumber Mfg. Co., 235 Ark. 195, 357 S.W.2d 504
(1962); Conway Convalescent Center v. Murphree, 266 Ark. 985, 588 S.W.2d 462 (Ark.App. 1979); St. Vincent Medical Center v. Brown, 53 Ark. App. 30, 917 S.W.2d 550 (1996). As is commonly stated, the employer takes the employee as he finds him. Murphree, supra. In such cases, the test is not whether the injury causes the condition, but rather the test is whether the injury aggravates, accelerates, or combines with the condition. After conducting a de novo review of the entire record, we find that the claimant has met his burden of proof and, accordingly, affirm the opinion of the Administrative Law Judge.
The record indicates that claimant has had prior difficulties with his right shoulder, beginning in early 1996. On February 23, 1996, claimant presented to the Family Clinic with complaints of right shoulder pain as a result of doing overhead work. He received a diagnosis of overuse syndrome. There was no documentation of swelling, restricted range of motion, or any other objective medical findings.
On June 4, 1996, claimant presented to Dr. Tom Patrick Coker with a history of a work-related injury “about two weeks ago.” Claimant said he felt like his shoulder had popped out of socket. The physical examination revealed full range of motion, no instability, no profound weakness, but some popping, although Dr. Coker noted that it was difficult to tell if the popping was old or new. The diagnosis was shoulder strain.
Claimant returned to Dr. Coker on March 17, 1997, again believing his shoulder had popped out of socket at work. X-rays were interpreted as normal. There were no objective findings revealed by the examination.
Apparently, some time in June 1997, an arthrogram was performed due to multiple subluxation episodes. However, there is no report of this procedure in the record.
Claimant was next seen by Dr. John P. Park on January 14, 1999. Dr. Park noted prior reconstructive surgery for right side posterior instability. Claimant’s history was of a work-related injury on or about December 21, 1998, when he felt something tear. The clinical examination revealed full range of motion, some mild crepitation, and good stability. The plan was to get another arthrogram of the shoulder.
Claimant testified that the last incident or difficulty he had with his right shoulder prior to his employment with this employer was the above-noted occurrence in December 1998. Claimant began his employment with the employer in February 2000. Claimant presented credible testimony that he was experiencing no difficulties with his right shoulder during his employment with the employer until June 16, 2000. He described his injury on that date in the following manner:
A I was working on a feed trailer outside — actually it was a truck and it had a feed bin on the back. I was installing an auger, a floor auger, into it. The bottom was filled with feed, and we were trying to work it in, trying to get it through and push it to and from, and more or less, I — you know, I just gave it a little too much and my shoulder just started bothering me.
Q Which shoulder was it that you were performing the operation that leads you to say, “I gave it a little too much”? What actually were you doing?
A I was pulling and pushing, but I was mostly using my right shoulder, you know. That’s my — I’m right-handed.
In reports dated June 19 and June 26, 2000, apparently from the Cooper Clinic, claimant is noted to have limited range of motion, both actively and passively, and crepitus. The June 26 note also details apparent subluxation of the humeral head, and adds that “[u]nfortunately, he has had previous injury and shoulder surgery so I do not know what our true functional baseline is in this patient.” Thereafter, claimant was referred to Dr. Park, who had treated claimant’s right shoulder in the past.
Dr. Park performed a diagnostic arthroscopy in August 2000. In a clinic note dated August 25, 2000, Dr. Park stated that: “. . . We had a discussion regarding his operative findings. I think he will resolve satisfactory. The shoulder is stable. He had a small partial tear on the undersurface of the cuff, which was shaved, and we will assess him in three months. He is back to work already with no restrictions.”
In a report dated October 21, 2000, Dr. Park stated the following:
I appreciate your letter regarding Ryan Austin. As you recall, the patient is a 26 year old male who had a traumatic injury to his shoulder that was felt to be a posterior dislocation and underwent a posterior reconstruction of his shoulder 07/24/97. He underwent a diagnostic arthroscopy on his shoulder on 08/11/00, approximately and was found that he had no new evidence of rotator cuff tearing visualizeable within the substance of it only a small little flap lesion on the capsular layer on the under surface which was shaved away and essentially asymptomatic.
I do not anticipate any new treatment would be needed for this tear and should heal quite quickly.
Crepitus, restricted passive range of motion, and subluxation can constitute objective medical findings to support compensability. DonnaJordan v. Wal-Marts Stores, Inc., Full Commission Opinion filed July 31, 1998 (E415504); Janet Roberts v. Baxter International, Full Commission Opinion filed April 12, 2001 (E714829); Hayes v. Wal-Mart Stores, Inc., 71 Ark. App. 207, 29 S.W.3d 751 (2000); and Wal-Mart Stores, Inc. v.Stotts, ___ Ark. App. ___, ___ S.W.3d ___ (October 10, 2001) (CA00-1468).
In the present case, it is unclear how the physician arrived at the finding of subluxation of the humeral head. However, we find that restricted passive range of motion and crepitus are objective evidence of injury with little or no evidence to the contrary. See Estridge, supra.
There are no medical opinions in the record explicitly addressing the causal connection issue. However, the Administrative Law Judge, who heard claimant’s live testimony and observed his demeanor, specifically found that “claimant has testified credibly” about a work-related injury sustained in June 2000 while pushing and pulling an auger. Claimant also credibly testified that he was not experiencing difficulties with his right shoulder during his employment with this employer until the June 2000 incident. Further, a June 19, 2000 office note documents a consistent history of “pulling a trailer on a floor auger when he hurt his right shoulder.” Additionally, a June 26, 2000 office note contains a diagnosis of “acute strain of right shoulder.” Based on the above evidence, we find that claimant has proven by a preponderance of the evidence that he sustained an injury arising out of his employment.
Respondent argues, and claimant’s attorney seems to concede, that the diagnostic arthroscopy failed to reveal any objective evidence of an acute injury to the right shoulder. In other words, it was claimant’s preexisting condition, rather than the work-related injury, that caused the need for treatment, including, specifically, the diagnostic arthroscopy. However, claimant does not have to prove that the injury is the major cause of the disability or need for treatment. The accidental injury at work must either cause or precipitate the need for treatment.Estridge, supra. Notwithstanding the findings (or lack of findings) of the diagnostic arthroscopy, a preponderance of the evidence indicates that the June 2000 accidental injury at work caused or precipitated the need for treatment and the diagnostic procedure, especially since claimant was essentially asymptomatic prior to the accident.
For the foregoing reasons, we affirm the opinion of the Administrative Law Judge finding that claimant has proven by a preponderance of the evidence that he sustained a compensable injury. Respondent is directed to comply with the award set forth in the opinion of the Administrative Law Judge. All accrued benefits shall be paid in a lump sum without discount and with interest thereon at the lawful rate from the date of the Administrative Law Judge’s decision in accordance with Ark. Code Ann.§ 11-9-809 (Repl. 1996). For prevailing on this appeal before the Full Commission, claimant’s attorney is hereby awarded an additional attorney’s fee in the amount of $250.00 in accordance with Ark. Code Ann. § 11-9-715 (Repl. 1996).
IT IS SO ORDERED.
______________________________ ELDON F. COFFMAN, Chairman
______________________________ SHELBY W. TURNER, Commissioner
Commissioner Wilson dissents.
DISSENTING OPINION
MIKE WILSON, Commissioner
I respectfully dissent from the majority opinion finding that the claimant proved by a preponderance of the evidence that he sustained a compensable injury to his right shoulder. Based upon my de novo review of the record, I would reverse the decision of the Administrative Law Judge.
For the claimant to establish a compensable injury as a result of a specific incident which is identifiable by time and place of occurrence, the following requirements of Ark. Code Ann. § 11-9-102(4)(A)(i) (Supp. 1999), must be established: (1) proof by a preponderance of the evidence of an injury arising out of and in the course of employment; (2) proof by a preponderance of the evidence that the injury caused internal or external physical harm to the body which required medical services or resulted in disability or death; (3) medical evidence supported by objective findings, as defined in Ark. Code Ann. § 11-9-102(16), establishing the injury; and (4) proof by a preponderance of the evidence that the injury was caused by a specific incident and is identifiable by time and place of occurrence. If the claimant fails to establish by a preponderance of the evidence any of the requirements for establishing the compensability of a claim, compensation must be denied. Mikel v.Engineered Specialty Plastics, 56 Ark. App. 126, 938 S.W.2d 876 (1997).
In my opinion, the claimant has failed to prove his injury by objective findings. Objective findings are defined at Ark. Code Ann. §11-9-102(16) (Supp. 1999) as:
. . . those findings which cannot come under the voluntary control of the patient. When determining physical or anatomical impairment, neither a physician, any other medical provider, an administrative law judge, the Workers’ Compensation Commission, nor the courts may consider complaints of pain; for the purpose of making physical or anatomical impairment ratings to the spine, straight-leg raising tests or range-of-motion tests shall not be considered objective findings. Medical opinions addressing compensability and permanent impairment must be stated within a reasonable degree of medical certainty.
The medical evidence shows that the claimant first obtained medical treatment on June 19, 2000. X-rays were taken which showed no evidence of fracture or dislocation. The claimant was diagnosed with a strain of his right shoulder. Because of the claimant’s continued complaints of pain, Dr. Park performed a diagnostic arthroscopy on August 11, 2000. This arthroscopy did not reveal any new evidence of rotator cuff tearing. However, Dr. Park noted that there was a small flap lesion, which he described as “asymptomatic.” Dr. Park did not anticipate any further medical treatment was necessary, and he released the claimant to return to work without restrictions on August 25, 2000.
Further, the claimant’s own attorney noted at the hearing that he acquiesced in Dr. Park’s observations that the claimant’s lesion was asymptomatic and was not the cause of the symptoms from which the claimant was complaining. I would note that at the hearing the claimant’s attorney admitted unequivocally in his summation that the claimant had no objective findings of injury.
Now, the reason I want to make a summation and not just leave is that it’s quite simple to say that the medical of Dr. Park reflects no objection findings, but here’s where we are in this case: diagnostically to rule out whether or not he has had an injury, he’s entitled to reasonable and necessary medical. The reason I withdrew our claim for temporary total disability is that I acknowledge that there are not objective findings to show that he has a right to receive TTD or, in turn, permanent impairment, but you don’t know what this guy has got until you scope him, and, quite simply, there is no testimony that anything else happened other than exactly as he said it did.
Therefore, after I consider the lack of medical evidence to support a finding of compensability, I find that the claimant has failed to meet his burden of proof. Therefore, I must respectfully dissent from the majority opinion awarding benefits.
_______________________________ MIKE WILSON, Commissioner