CLAIM NO. F311100
Before the Arkansas Workers’ Compensation Commission
OPINION FILED NOVEMBER 16, 2007
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the Honorable Eddie H. Walker, Jr., Attorney at Law, Fort Smith, Arkansas.
Respondents No. 1 represented by the Honorable James Arnold, II, Attorney at Law, Fort Smith, Arkansas.
Respondent No. 2 represented by the Honorable David Pake, Attorney at Law, Little Rock, Arkansas.
Respondent No. 3 represented by the Honorable Judy Rudd, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed.
OPINION AND ORDER
Respondent No. 1 appeals and the claimant cross-appeals an administrative law judge’s opinion filed January 19, 2007. The administrative law judge found, among other things, that
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the claimant proved he sustained a compensable injury to his left shoulder and neck. The administrative law judge found that Respondent No. 1 should pay a 9% impairment rating for the neck and a 7% rating for the left shoulder, and that Respondent No. 1 should pay additional wage-loss disability in the amount of 16%.
After reviewing the entire record de novo, the Full Commission affirms the administrative law judge’s finding that the claimant sustained a compensable injury to the left shoulder, and we affirm the administrative law judge’s finding that the claimant proved he was entitled to 7% anatomical impairment and 16% wage-loss disability. The Full Commission reverses the administrative law judge’s opinion that the claimant sustained a compensable neck injury.
I. HISTORY
David Broom, age 56, testified that he held an associate degree in computer electronics. Mr. Broom testified that his employment history included work at a plywood mill and at a foundry. The claimant testified that he had been employed with two other companies and that he had “always done industrial electrician.”
Upon questioning by counsel for the Second Injury Fund, the claimant testified that he had received a prior impairment rating for his low back. There are no medical records before the Commission establishing such a rating.
The claimant testified that he began working for Gerber Products Company in 1998. The claimant testified that his job duties were “Instrumentation, electrician,” and that the work was sometimes physically demanding.
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Dr. Dale W. Asbury noted on June 10, 2003, “Patient comes in with pretty obvious rotator cuff syndrome on the left and for refill of his Xanax. . . . He is given 1 cc of Decadron LA and 1 cc of 1% Lidocaine to the left shoulder, the first injection, with 100% resolution of symptoms.”
The claimant testified that his work duties following the June 2003 visit with Dr. Asbury involved carrying motors, climbing ladders, lifting, and working in cabinets.
The parties stipulated that the employment relationship existed on July 9, 2003. The claimant testified on direct examination:
Q. Did anything unusual happen to you on July 9, 2003?
A. Yes. I was injured.
Q. What happened?
A. I was carrying a motor and pump over to the walker line and we had to — the conveyor — they’re conveyors with stairs going over the conveyors. We had two of them — and I made it over the first one and then the second one I missed. I was carrying the motor up in my arms next to my chest (demonstrating), and I missed a step and then I tried to, you know, catch myself — it had some rails going up — and when I did, the full weight of the motor yanked my arm all the way down. . . .
Q. So the weight of the hundred-pound motor in your left arm jerked your left arm and shoulder?
A. Yes, sir. It jerked it all the way down, yeah. I let go of it, but not before the pain hit.
Q. Did you have immediate pain?
A. Yes, sir, I had immediate pain. . . . It was from the corner of my neck down my shoulder and down my arm (pointing toward left shoulder and upper part of left arm).
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The claimant presented to Cooper Clinic on July 11, 2003 and reported a date of accident of July 9, 2003. A Radiology Report on July 11, 2003 showed the following findings: “Two view examination left shoulder reveals no fracture, dislocation, or significant degenerative change to be evident.” Dr. Terry L. Clark examined the claimant on July 11, 2003:
The patient is a 51-year-old gentleman who was helping to carry a motor up steps and felt a “pop” in his left shoulder, followed by pain. He denies radicular type symptoms. The pain is primarily superiorly, radiating down to the lateral aspect of the shoulder. . . .
He has tenderness to palpation of the left AC joint and the proximal third of the deltoid. He is able to abduct only to 70 degrees and that increases his discomfort. He has decreased range of motion on internal and external rotation. Distal neurovascular status is intact.
Dr. Clark’s impression was “Left AC joint strain.” Dr. Clark prescribed medication and assigned work restrictions. The claimant testified that the respondents initially accepted responsibility for his injury. The claimant testified that he continued to work following the initial visit to the doctor.
Dr. Clark’s impression on July 18, 2003 continued to be “Left AC joint strain.” Dr. Clark continued to plan conservative treatment and to keep work restrictions in place.
Dr. Clark noted on August 1, 2003, “Follow-up left shoulder strain and left AC joint strain. He continues to complain of pain. Apparently he reached up to grab a part and complained of worsening of pain.” Dr. Clark’s impression was “Left shoulder strain, rule out rotator cuff tear.” Dr. Clark continued to assign work restrictions and planned an MRI of the left shoulder.
An MRI of the claimant’s left shoulder was taken on August 5, 2003, with the following impression: “Tiny focal area of increased signal within the supraspinatus tendon, could represent
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a tiny partial tear or tiny focal perforation. No tendinous retraction. Mild hypertrophy and downward sloping of the acromion process.”
Dr. Keith F. Holder reported on August 8, 2003:
This is the final narrative summary on Mr. Broom, an employee of Gerber, who reports he is here for follow up of left shoulder MRI. He has been to physical therapy for two weeks, injury was four weeks ago. He reports he is still unable to lift his arm past 90 degrees. . . .
Left arm he is able to abduct to 90 degrees today thumb up and palm down. There is no give way with forward flexion or extension, or empty can or abduction.
MRI shows a small defect in the supraspinatus tendon and a down sloping acromion process and mild hypertrophy.
Dr. Holder’s impression was “Left shoulder strain. . . . May return to work, no lifting more than 20 pounds, floor to waist and waist to shoulder, no lifting above head, limited use of left shoulder and no repetitive motion of the left shoulder. He is referred to Dr. Michael Wolfe on 8-18.”
The claimant was examined at the Cooper Clinic Department of Orthopedics by Dr. Michael S. Wolfe on August 18, 2003. Dr. Wolfe reported, “Radiographs of the shoulder essentially within normal limits. He did have an MRI which may have shown a partial tear furuncle perforation to the supraspinatus. IMPRESSION: Subacromial impingement syndrome with possible minor rotator cuff pathology.” Dr. Wolfe’s treatment plan included medication and “aggressive physical therapy.”
Dr. Wolfe followed up with the claimant on September 4, 2003 and gave the following impression: “1. Impingement syndrome and possible rotator cuff pathology, left shoulder. 2. Carpal tunnel syndrome.”
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An electromyogram report was entered on September 8, 2003, with the following impression: “This is a normal nerve conduction study of the bilateral upper extremities with specifically no evidence to suggest carpal tunnel syndrome or compressive neuropathy.”
Dr. Wolfe stated on September 11, 2003, “He still obviously has persistent stiffness in the shoulder and does have MRI evidence of a partial rotator cuff tear. I do think that he is a candidate for surgical intervention and we have made an appointment for him to see Dr. Bebout.”
Dr. Robert G. Bebout examined the claimant on October 9, 2003:
He injured his left upper extremity. This happened when he was trying to carry a heavy pump and motor. The motor slipped out of his right hand, then all of the load was on his left arm, and it jerked and pulled and hurt the shoulder. This happened on 09, July of this year. . . .
He had an MRI scan which showed positive tenopathy and increased signal in the supraspinatus tendon, but no direct evidence of a tear.
All of his pain is located in the upper arm and does not really radiate down below the elbow. No numbness or tingling.
X-ray showed some degenerative changes in the AC joint with spurring on both distal clavicle and the acromion process. . . .
ASSESSMENT:
1. Tendonitis/bursitis, which I do not think is going to settle down because of the arthritic changes of the AC joint. I think he needs a Mumford anterior acromioplasty of this shoulder. Bursectomy expiration rotator cuff which is probably intact, to get over this injury. This will be scheduled once it is approved through Workers Comp as outpatient procedure.
With regard to when he was first taken off work, the claimant testified, “I think right before I had the surgery with Dr. Bebout, as far as I can remember. Maybe it was — I can’t remember.”
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On October 21, 2003, Dr. Bebout performed a “Mumford anterior acromioplasty, excision of thickened bursa of the left shoulder. The rotator cuff was intact.” Dr. Bebout’s pre-and post-operative diagnoses were “Chronic left shoulder pain with degenerative joint disease AC joint.”
Dr. Bebout noted on November 4, 2003, “Mr. Broom is a 52-year-old male who follows up now two weeks after Mumford anterior acromioplasty of the left shoulder. He had a thickened, inflamed large chronic subdeltoid bursitis, but the rotator cuff was intact. We did a Mumford anterior acromioplasty and excision of the bursa.”
The claimant testified that the respondent-employer paid for his shoulder surgery and that he received workers’ compensation while he was off work. The claimant testified that his range of motion improved following surgery by Dr. Bebout and that he thought Dr. Bebout’s surgery was helpful.
On November 12, 2003, Dr. Bebout indicated that the claimant could return to work on November 17, 2003 with the restriction of one-handed duty, “no use left arm.”
The claimant testified on cross-examination that he returned to restricted work.
A Radiology Report indicated that multiple views of the claimant’s cervical spine were taken on November 19, 2003, with the following impression: “Multilevel moderate degenerative change cervical spine.”
Dr. Bebout noted on November 19, 2003, “X-rays of the neck show degenerative disc disease, especially at the 3-4 level.”
The claimant followed up with Dr. Bebout on December 5, 2003: “He is having a different trouble now. He is complaining of numbness in the hand with tingling. . . . He has pain
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from the wrist all the way up into the upper back and the base of his neck area. . . . We are going to send him for an MRI of his neck. We will keep him off work until then.”
An MRI of the claimant’s cervical spine was taken on December 15, 2003, with the following impression: “Spondylitic ridging and disc protrusion and moderate canal stenosis C3-4. Disc bulging vs. very mild protrusion C6-7 as described.”
Dr. Bebout reported on December 18, 2003:
Mr. Broom is a 52 year old male who follows up after MRI of the neck because of continued pain in the shoulder despite normal motion of the shoulder. It looks like his shoulder has healed up well from surgery. This does show evidence of 3-4 stenosis that I think is causing the continued trouble with the shoulder at this point in time. We are going to send him to neurosurgery for their evaluation just to see if surgical intervention is necessary or what particular therapy they would prescribe.
A Radiology Report dated December 22, 2003 gave the following impression: “Multilevel degenerative change, greatest at C3-4, without definite instability present.”
Dr. Larry G. Armstrong examined the claimant and corresponded with Dr. Bebout on December 22, 2003:
[T]he patient is a 52-year-old, right-hand-dominant male who presents today having had an injury at work while employed at Gerber on 7/9/03. He has been off of work since that time. He had an initial injury while he was lifting a pump and motor across some lines. He stepped across the lines, the pump slipped in his right arm and he tried to grab it with his left arm and had the onset of pain in his left shoulder which progressed somewhat into his left triceps region and into the back of the left side of his neck. He did have subsequent shoulder surgery performed by you approximately two months ago. He did improve his range of motion of his left shoulder; however, he has continued with pain in the left posterior cervical region, left suprascapular and trapezius regions as well as into the left shoulder. . . . He presents today for evaluation of his neck. . . .
Cervical spine range of motion is diminished throughout rotation to the right and side bending to the left. There are increased tissue texture changes and musclePage 9
spasm, ropiness and tenderness appreciated throughout the supraspinatus, levator scapula and trapezius on the left side. This does reproduce the patient’s symptomatology. . . .
RADIOLOGIC: Cervical spine x-rays with flexion and extension views are reviewed in detail and reveal no subluxation, spondylolisthesis or instability. A cervical spine MRI scan from Cooper Clinic dated 12/15/03 is reviewed with the patient in detail and reveals spondylitic ridging which is broad based at C3-4 without frank neuroforaminal stenosis. There is no significant neuroforaminal stenosis throughout the cervical spine. Cervical alignment is adequate. There is some mild increased cervicothoracic angulation and there is a dorsal fat pad present as well.
IMPRESSION:
1. Cervical spondylosis, no frank radiculopathy.
2. No evidence of carpal tunnel.
3. Degenerative disc disease of the cervical spine.
4. Cervicalgia with cervical myofascial strain/sprain. . . .
I again reviewed all of the findings with the patient in detail as we discussed his pathophysiology on a plastic spine model. We discussed the fact that I believe surgery would not significantly benefit his condition and he would be better served by conservative methods in the future. He will not need to follow up with me unless there is a specific change in his clinical condition. In addition, the patient’s co morbid factor of anxiety and panic attacks will tend to exacerbate his condition. A TENS unit or muscle relaxers could help this. The cervical myofascial dysfunction may be a new diagnosis but it should be benefitted through time and conservative care. All of the above is discussed with the patient in detail. . . .
The claimant returned to see Dr. Clark on January 15, 2004. Dr. Clark’s impression was “1. Cervical strain. 2. Status post surgical repair of a torn rotator cuff of the left shoulder.” Dr. Clark treated the claimant conservatively and indicated the claimant could work “with limited use of the left shoulder and no overhead work.”
Dr. Clark noted on February 3, 2004, “He has tenderness to palpation of the left trapezius, proximal third with spasm. No midline or right-sided tenderness. Full range of
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motion of the neck. Full range of motion of the shoulder. Neurovascularly he is intact.” Dr. Clark planned conservative treatment and indicated the claimant could work “with the restrictions of limited overhead work.”
On March 2, 2004, a Cooper Clinic follow-up report indicated that the claimant “May return to work with limited overhead work.”
The claimant participated in a Functional Capacity Evaluation on March 25, 2004. The following recommendations resulted from the FCE: “Please see table titled `Physical Abilities’ for specific information regarding capabilities and limitations for this patient. Lifting profile identifies the patient at the `Light’ level of function for the most part. Specific Recommendations 1) No crawling unless absolutely necessary. 2) Use of 2 hands while climbing ladder. 3) No weighted nor repetitive motion of left arm above shoulder height.”
Dr. Holder noted on April 12, 2004, “As far as his functional capacity evaluation results, the reader is referred to those particular results. Basically, he is limited on his lifting with the left arm to no more than 20 pounds, floor to waist, 15 pounds waist to shoulder, and 10 pounds above head not greater than one-third of the time, limited repetitive motions of the left shoulder, and above shoulder level work. . . . He is referred back to Dr. Bebout and will follow-up here as needed.”
Dr. Bebout arranged another MRI of the claimant’s left shoulder, which was taken on May 5, 2004 with the following impression: “Increased signal intensity within the distal supraspinatus tendon consistent with tendonitis/tendinosis. No evidence for any full thickness rotator cuff tear although difficult to rule out a possible partial intrasubstance tear within the supraspinatus tendon.”
Dr. Bebout reported on May 12, 2004:
Mr. Broom is a 52-year-old male who follows up with MRI evaluation of his shoulder. This shows tendinitis, no tear in the rotator cuff. He continues to have pain from the neck into the shoulder and upper arm, no numbness or tingling of the arm.
ASSESSMENT AND PLAN: I think the majority of these symptoms are probably neck related, not shoulder related. He is right hand dominant. He has tried various medications, Mobic, Vioxx, Celebrex and Ultram. We are going to try a course of Bextra, send him back for some physical therapy to work on his neck with traction as well as a shoulder strengthening program. He will continue his present work status. We will see him back in the office in a couple of weeks for reevaluation.
Dr. Bebout eventually referred the claimant to a neurosurgeon, Dr. J. Michael Standefer. Dr. Standefer examined the claimant on June 24, 2004 and recommended “further investigation to include myelography and postmyelogram CT scanning to more fully and completely evaluate this problem.”
The claimant treated at a pain clinic with Dr. John R. Swicegood beginning in July 2004.
Dr. Bebout reported on September 29, 2004:
Mr. Boom (sic) follows up for neck and shoulder trouble. He had shoulder surgery, left shoulder surgery almost a year ago now and continues to have chronic pain in the neck and upper back referred to the shoulders, especially down the left arm. He has been evaluated by neurosurgery over the last year and they do not feel he has surgical indication on his neck. He does have a lot of degenerative disease in the neck and some disc bulge but they did not think it was causing any signifincat (sic) radiculopathy. . . .
I think at this time, he has reached maximum medical improvement, although he is certainly not well. According to the Guides to Evaluation of Permanent Impairment, fourth edition, American Medical Association, he has an impairment of 12% to the upper extremity for loss of motion of the shoulder which equates to 7% whole person and DRE category 3 for cervicothoracic symptoms and radiculopathy which equates to 15% whole person, page 3/104 for a combined total of 21% whole person disability for his current symptoms.
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The claimant testified that he began receiving checks for anatomical impairment following the rating assigned by Dr. Bebout.
The claimant sought emergency medical treatment on October 22, 2004. The record indicates that the claimant complained of pain in his left shoulder, neck, and back after falling approximately four feet from a platform at work.
On October 28, 2004, a Radiology Report gave the following impression after views of the claimant’s cervical spine: “1. Limited evaluation of the lower cervical spine. 2. Mild degenerative disc space narrowing and marginal spondylosis C3-4 and there is mild degenerative facet joint disease on the right C4-5.” Radiography of the claimant’s left shoulder on October 28, 2004 revealed the following impression: “No bony abnormality about the left shoulder.”
Dr. Bebout noted on October 28, 2004, “I think his major symptoms are coming from his neck. We are going to get an MRI of his neck.”
An MRI of the cervical spine was taken on November 19, 2004, with the following impression: “Moderate dorsal spondylotic ridging and disc protrusion C3-4 resulting in mild to moderate spinal canal stenosis and moderate bilateral foraminal stenosis.”
The claimant followed up with Dr. Bebout on December 1, 2004: “He had a MRI of his neck. This does show moderate spinal stenosis at the C3-4 level and bilateral foraminal stenosis as well. I am convinced that this is the reason for his ongoing shoulder and arm pain with pain at night as well as with activity during the day. . . . I think his neck disease has progressed since last evaluation and visit. I believe this is an ongoing problem from his original
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worker’s comp injury. He needs a neurosurgical evaluation for possible surgical intervention on the neck. We are going to set this up.”
An x-report on February 8, 2005 gave the following impression: “Cervical osteophytes, posterior, C3-4, and to a lesser degree C5-6.”
Dr. Arthur M. Johnson examined the claimant on February 8, 2005:
Mr. Broom is a 53 year old gentleman who has had problems with neck and shoulder pain and pain into the left arm, associated with some spasms. The patient has had this pain since 2003 when he was lifting a motor at work and taking it upstairs. . . .
The MRI scan of the cervical spine shows he has C3-4 cervical osteophyte with bilateral neuroforaminal narrowing, moderate degree, worse on the left hand side.
IMPRESSION: Osteophyte, C3-4, with neuroforaminal narrowing bilaterally. . . . The patient is to be scheduled for anterior cervical diskectomy and fusion at C3-4 due to his failure to respond to conservative, non-operative intervention. . . .
On a Return to Work slip dated March 22, 2005, Dr. Johnson indicated that the claimant could not return to work and was disabled from March 23, 2005 to May 23, 2005.
On May 11, 2005, Dr. Johnson performed an “Anterior cervical diskectomy and fusion at C3-4.” Dr. Johnson’s pre-and post-operative diagnoses were “Cervical disc herniation C3-4.”
The claimant testified that he thought the employer had paid for his neck surgery and that he received workers’ compensation while he was off work following Dr. Johnson’s surgery.
On May 24, 2005, Dr. Johnson kept the claimant off work until June 24, 2005.
Dr. Johnson noted the following on July 5, 2005:
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The patient still complains of some pain in his neck. The anterior cervical diskectomy and fusion was on 05/11/05. He is taking permanent muscle relaxants now. States his pain is more in the back of his neck and runs up and down the spine with no significant radiation to his extremities. Still has some pain in left arm but not nearly as much as prior to surgical intervention. He has returned to work and he is on work restrictions and guidance for his work environment. . . .
His x-rays show that he has good placement of the cervical plate and the bone plug at the C3-4 level. There appears to be normal progression of the fusion.
IMPRESSION: Status post anterior cervical diskectomy and fusion at C3-4 with some residual muscle spasm pain in his posterior neck area. . . . We will see him back in the clinic in approximately three months. Also his work restrictions are no lifting greater than 15 pounds with no working with his hands above his head or looking up on a continuous basis.
Dr. Johnson indicated on a Return to Work slip that the claimant could return to restricted work on July 11, 2005.
The claimant testified that he returned to restricted-duty work.
The claimant continued to follow up with Dr. Johnson.
An MRI of the claimant’s cervical spine was taken on October 11, 2005, with the following impression: “1. Artifact compatible with hardware from an anterior interbody fusion at C3-4 with no spinal or foraminal stenosis and no disc herniation seen.”
The claimant began treating with a physical therapist on October 12, 2005.
The claimant testified that he eventually had to stop working, “Because of the intensity of the muscle spasms I was having causing a lot of pain.”
Dr. Johnson noted on January 24, 2006 that the claimant’s pain was worsening and was continuing to cause significant problems radiating down to the arm. Dr. Johnson’s impression was “Cervicalgia status post anterior cervical diskectomy and fusion with excellent interbody fusion at C3-4 level.”
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Dr. Johnson took the claimant “off work indefinitely” on January 24, 2006. The respondents stopped paying benefits at about this point. The claimant testified that he had not been back at work after January 24, 2006.
Dr. Asbury assessed the following in March 2006: “Impingement Syndrome, Chronic Neck Pain. Status Post Multiple Neurosurgical and Orthopedic Procedures, not a lot of help. Chronic Pain Syndrome.”
Dr. Asbury signed a Physician’s Statement on March 24, 2006 indicating that the claimant was not able to work.
Dr. Asbury saw the claimant on April 6, 2006 and noted, “He wants to get back to work through some rehab situation. . . . He is referred to the Arkansas Vocational Rehabilitation Center over in Essex Place after a consultation with the social workers to see if they can help out some and get him off Disability and back to work.”
The claimant participated in a Functional Capacity Evaluation on May 2, 2006 and the following recommendations resulted: “Please see the table titled `Physical Abilities’ for specific recommendations. In general no low level or overhead work is recommended. Prolonged positions should be avoided. There is a strong concern for safety with low-level attempts at lifting. Alternate between sit and stand prn.”
Dr. Johnson stated on June 2, 2006:
The above captioned patient has been under my care. The patient has now reached his maximum medical improvement. He is given a permanent impairment disability rating according the AMA guidelines of nine percent (9%) to the body as a whole. This is within a reasonable degree of medical certainty.
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A pre-hearing order was filed on July 18, 2006. The claimant contended, among other things, that he was entitled to temporary total disability from January 24, 2006 until a date yet to be determined. The claimant contended that he was entitled to reasonably necessary medical treatment “in regard to his cervical spine.”
According to the pre-hearing order, the respondents contended that the claimant had “reached maximum medical improvement for the compensable injury sustained in the accident of July 9, 2003; that the respondents have paid all indemnity benefits to which the claimant is entitled; and that the respondents have provided and paid for all reasonable necessary medical evaluation and treatment for the compensable injury.”
The parties agreed to litigate the following issues:
1. Compensability of the claimant’s left shoulder and neck injuries on July 9, 2003.
2. Related medical.
3. Temporary total disability from July 16, 2003, until June 2, 2006.
4. Permanent partial impairment of 9 percent for the neck and 7 percent for the shoulder.
5. Is the claimant permanently and totally disabled or entitled to wage loss over his impairment?
6. Second Injury Fund liability.
7. Attorney’s fees.
In correspondence to the claimant’s attorney dated September 29, 2006, Dr. J. Thomas Sullivan stated that he had been treating the claimant since September 19, 2006. Dr. Sullivan opined, among other things, that the claimant “should continue to be listed at a total disability.”
A hearing was held on October 12, 2006. The claimant testified on direct:
Q. Do you know any way that you could go back to doing a physically demanding job and be able to perform it?
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A. No, sir.
Q. What is there about your condition that causes you to believe that you’re not able to go back to work at this point?
A. Because the pain and the muscle spasms that I can have without doing much of anything still occur, and that would increase if I went — you know, went back to doing the job I was doing. . . .
Q. Is the use of your left hand and arm limited in any way?
A. Yes. . . . I don’t have too much strength in it. You know, besides the hurting, you know, and the — well, the numbness, you know, in my hand I get sometimes, it’s mostly — it’s just a lot weaker than it was before.
The respondents’ attorney cross-examined the claimant:
Q. The records reflect that Dr. Asbury recommended that you go to a vocational rehabilitation specialist for an evaluation. Did you ever do that?
A. I set up an appointment, yes.
Q. But did you go see him?
A. No, sir, because I still found out I was employed by Gerber, and I still am employed by Gerber.
Q. Well, but nobody is going to let you go back to work at Gerber? None of these doctors are, are they?
A. No, sir. . . .
Q. Are you planning to go back to work at Gerber?
A. No, sir, I guess not.
Q. What are you planning on doing?
A. I don’t really know right now.
Q. Have you applied for social security disability?
A. Yes, sir.
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Q. Are you on it?
A. No, sir.
The claimant’s testimony indicated that the respondents had not paid for all the impairment ratings for the claimant’s shoulder and neck.
The parties deposed Dr. Bebout on October 25, 2006. The respondents’ attorney questioned Dr. Bebout:
Q. On his physical examination, what were your findings on the initial visit?
A. Well, I found that his motion, in his left shoulder we’re talking about, was somewhat limited really in all directions. Basically, we evaluate internal and external rotation and the ability to raise your arm straight over your head, and he was limited in all directions that we tested. He had what we call a positive impingement sign, which means when he tries to get his arm up over his head it causes significant pain with that attempt of motion. . . . His x-rays showed that he had arthritic changes where his collarbone and his shoulder blade met, what is called the AC joint over the top of the main ball joint area of the shoulder. Also, he’d had an MRI I believe by, that Dr. Wolfe had ordered that, that showed he had some irritation to his rotator cuff tendons, but no direct evidence of a torn tendon.
Q. The irritation to the tendons, would that be another way of describing inflammation?
A. Yes. . . .
Q. Would the arthritic changes — the degenerative changes and/or the spurring that you noted as having been present on the X-ray films, have been something that would have themselves been directly caused by the incident of the injury or accident of July 9, 2003, that was reported to you by Mr. Broom?
A. Well, more than likely the spurs were pre-existing or already there by the time of the accident. . . .
Q. Can you state, other than by relying upon the patient’s description of when his symptoms began, as to when the inflammation or the — now I’ve forgotten the term —
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A. The tendonitis or tendonopathy?
Q. — when that occurred?
A. No. It would just be from the patient’s history. . . .
Q. Okay, and based upon the information that Mr. Broom gave you and your review of the records and your physical examination of Mr. Broom, did you arrive at a preliminary diagnosis or an impression of what his problem was?
A. Yes, sir. I think he, you know, had the tendonitis as identified by the MRI and by his symptoms. Along with that, there’s bursitis, I think that was his underlying and, you know, the arthritis of the AC joint, which was, you know, just keeping things inflamed.
Q. Okay. Now you have mentioned bursitis here. Is that also an inflammatory process?
A. Yes. . . .
Q. And just reviewing it, I don’t want to go through all of it, you know, line-by-line or word-by-word, but were the findings during the operation consistent with what your impression had been pre-operatively?
A. Yes, sir. He had quite a bit of arthritic changes of that collarbone, acromion joint there that we removed, and then he had a very thick and inflamed bursa right underneath that we excised — we got rid of the bursa as well, and then we could evaluate and see, and inspect, palpate the rotator cuff and it was not torn. . . .
Q. Does the fact that the bursa is thickened suggest that the irritation had been present for a longer period of time than you would expect if the inflammation or the bursitis was caused only by a recent, specific accident?
A. Well, certainly it takes time for that process to occur, for it to thicken. I’m really not sure I can put a temporal, you know, time on it. . . .
Q. — can you state within a reasonable degree of medical certainty whether Mr. Broom’s problems that you ultimately treated him for were caused by the incident of July 9, 2003, as opposed to having been ongoing and developing prior to that?
A. No, I can’t be sure.
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The administrative law judge found, in pertinent part:
4. The claimant has proven by a preponderance of the evidence that he sustained a compensable injury to his left shoulder and to his neck on July 9, 2003. . . .
5. Respondent #1 should pay for the cost of all reasonable and necessary medical treatment for the claimant’s left shoulder and neck problems.
6. Claimant is entitled to temporary total disability from July 16, 2003, for the periods of time he was off work as a result of his compensable injuries to January 24, 2006.
The claimant then is entitled to temporary total disability from January 24, 2006, to June 2, 2006, continually, which is the period of time Dr. Johnson took the claimant off work indefinitely until he indicated the claimant had reached maximum medical improvement on June 2, 2006.
7. Respondent #1 should pay permanent partial disability to this claimant in the amount of 9 percent to his neck and 7 percent for his left shoulder problems as assessed by Dr. Johnson and Dr. Bebout.
8. The claimant has failed to prove by a preponderance of the evidence that he is permanently and totally disabled. . . .
9. The claimant has proven . . . that he is entitled to wage loss in the amount of 16 percent over and above his permanent partial ratings of 9 percent for his neck and 7 percent for his shoulder. . . .
10. There is no Second Injury Fund liability found in this matter.
Respondent No. 1 appeals to the Full Commission and the claimant cross-appeals.
II. ADJUDICATION
A. Compensability
Ark. Code Ann. § 11-9-102(4)(A) defines “compensable injury”:
(i) An accidental injury causing internal or external physical harm to the body . . . arising out of and in the course of employment and which requires medical services or results in disability or death. An injury is “accidental” only if it is caused by a specific incident and is identifiable by time and place of occurrence[.]
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A compensable injury must be established by medical evidence supported by objective findings. Ark. Code Ann. § 11-9-102(4)(D). “Objective findings” are those findings which cannot come under the voluntary control of the patient. Ark. Code Ann. § 11-9-102(16)(A)(i).
The claimant’s burden of proof shall be a preponderance of the evidence. Ark. Code Ann. § 11-9-102(4)(E)(i). Preponderance of the evidence means the evidence having greater weight or convincing force Smith v. Magnet Cove Barium Corp., 212 Ark. 491, 206 S.W.2d 442 (1947).
In the present matter, the administrative law judge found that the claimant proved he sustained a compensable injury to his left shoulder and neck on July 9, 2003. The Full Commission finds that the claimant proved he sustained a compensable left shoulder injury on July 9, 2003. The claimant testified that he was carrying a large motor on that date, and that the motor fell and jerked his left arm, causing immediate pain. Dr. Clark reported on July 11, 2003 that the claimant had felt a “pop” in his shoulder. Dr. Clark treated the claimant for a left AC joint strain. Dr. Holder subsequently diagnosed left shoulder strain. Dr. Bebout performed surgery in October 2003. Dr. Bebout noted that surgery revealed a “thickened, inflamed large chronic subdeltoid bursitis, but the rotator cuff was intact.” We find that the thickened and inflamed bursitis was an objective medical finding not within the claimant’s voluntary control, and that this objective medical finding was causally related to the July 9, 2003 accidental injury.
The Full Commission finds that the claimant proved he sustained an accidental injury causing physical harm to his left shoulder. The injury arose out of and in the course of the claimant’s employment, required medical services, and resulted in disability. The accidental
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injury to the claimant’s left shoulder was caused by a specific incident and was identifiable by time and place of occurrence on July 9, 2003. The claimant established a compensable injury by medical evidence supported by objective findings, namely, the thickened bursa as noted by Dr. Bebout. Other objective medical findings of a left shoulder injury include Dr. Armstrong’s note of muscle spasm throughout the supraspinatus, levator scapula, and trapiezius on the left side.
The claimant did not prove that he sustained a compensable injury to his neck or cervical spine. The Full Commission has found that the claimant proved he sustained a compensable injury to his left shoulder on July 9, 2003. The record does not demonstrate that the claimant also injured his neck or cervical spine on July 9, 2003. The claimant was treated for a left AC joint strain and a left shoulder strain following the July 9, 2003 accident. Although the claimant testified that he immediately felt pain in the “corner” of his neck, the record does not show that he also injured his neck on July 9, 2003. There was no record of treatment related to the claimant’s neck until radiological views of the claimant’s cervical spine were taken on November 19, 2003. Radiology at that time showed moderate degenerative change in the claimant’s cervical spine, and there is no indication that this degenerative condition was the result of the compensable injury to the claimant’s left shoulder.
The Full Commission reverses the administrative law judge’s finding that the claimant proved he sustained a compensable injury to his neck on July 9, 2003. The claimant did not prove that he sustained an accidental injury causing internal or external physical harm to his neck or cervical spine. The claimant did not prove that he sustained an injury to his neck or cervical spine arising out of and in the course of the claimant’s employment. The claimant did not
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establish a compensable injury to his neck or cervical spine by medical evidence supported by objective findings. The degenerative change in the claimant’s cervical spine, first shown in November 2003, was not the result of the July 2003 accident to the claimant’s left shoulder. The cervical disc herniation at C3-4, as reported by Dr. Johnson, was not the result of the accident occurring on July 9, 2003. Nor did the December 2003 reports of muscle spasm in the claimant’s supraspinatus, levator scapula, and trapezius establish a compensable injury to the claimant’s cervical spine. The February 2004 report of spasm in the left trapezius did not establish a compensable injury to the claimant’s cervical spine.
B. Medical Treatment
The employer shall promptly provide for an injured employee such medical treatment as may be reasonably necessary in connection with the injury received by the employee. Ark. Code Ann. § 11-9-508(a). The claimant must prove by a preponderance of the evidence that he is entitled to additional medical treatment. Wal-Mart Stores, Inc. v. Brown, 82 Ark. App. 600, 120 S.W.3d 153 (2003). What constitutes reasonably necessary medical treatment is a question of fact for the Commission. Dalton v. Allen Eng’g Co., 66 Ark. App. 201, 989 S.W.2d 543
(1999).
The Full Commission has determined ante that the claimant sustained a compensable injury to his left shoulder on July 9, 2003, but that the claimant did not sustain a compensable injury to his neck or cervical spine on that date. Even if the claimant proved by a preponderance of the evidence that he sustained a compensable injury to his neck or cervical spine on July 9, 2003, which injury the claimant has not proven, the record does not show that
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surgery performed by Dr. Johnson was reasonably necessary. Dr. Johnson performed a cervical diskectomy and fusion at C3-4 on May 11, 2005. The post-operative diagnosis was “Cervical disk herniation C3-4.” There is no probative evidence demonstrating that the claimant sustained a cervical disc herniation as a result of the July 9, 2003 accident. Nor does the record show that the claimant’s physical condition improved following surgery by Dr. Johnson. The claimant continued to complain of severe pain in his neck. The claimant testified that the pain kept him from returning to work, and Dr. Johnson noted in January 2006 that the claimant’s pain was worsening. A claimant’s lack of post-surgical improvement is a relevant consideration in determining whether surgery was reasonably necessary. See, Hill v. Baptist Medical Center, 74 Ark. App. 250, 48 S.W.3d 544 (2001).
The claimant otherwise proved that treatment provided in connection with the left shoulder injury, including surgery performed by Dr. Bebout, was reasonably necessary.
C. Temporary Total Disability
Temporary total disability is that period within the healing period in which the employee suffers a total incapacity to earn wages. Ark. State Hwy. Dept. v. Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981). “Healing period” means “that period for healing of an injury resulting from an accident.” Ark. Code Ann. § 11-9-102(12). Whether or not a claimant’s healing period has ended is a question of fact for the Commission. K II Constr. Co. v. Crabtree, 78 Ark. App. 222, 79 S.W.3d 414 (2002).
The instant claimant’s testimony indicated that he received temporary total disability benefits for the periods he was off work until approximately January 24, 2006. The claimant contended that he was entitled to temporary total disability from January 24, 2006 until a date
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yet to be determined. The administrative law judge found that the claimant was “entitled to temporary total disability from January 24, 2006, to June 2, 2006, continually, which is the period of time Dr. Johnson took the claimant off work indefinitely until he indicated the claimant had reached maximum medical improvement on June 2, 2006.” The Full Commission reverses this finding. The record indicates that Dr. Johnson began treating the claimant on February 8, 2005 for neck complaints, and we have determined ante that the claimant did not prove he sustained a compensable injury to his neck or cervical spine. We note that Dr. Bebout performed surgery in October 2003 in connection with the compensable left shoulder injury, and Dr. Bebout returned the claimant to work in November 12, 2003. Dr. Bebout assigned an anatomical impairment rating for the claimant’s shoulder on September 29, 2004. The claimant therefore reached the end of his healing period for the shoulder injury no later than September 29, 2004. Temporary total disability cannot be awarded after a claimant’s healing period has ended. Elk Roofing Co. v. Pinson, 22 Ark. App. 191, 737 S.W.2d 661 (1987).
The claimant did not prove that he sustained a compensable neck or cervical injury, so the claimant did not prove he was entitled to temporary total disability benefits for his neck or cervical complaints. The record does not otherwise show that the claimant re-entered a healing period for his shoulder injury after Dr. Bebout assigned an impairment rating on September 29, 2004. The Full Commission therefore reverses the administrative law judge’s finding that the claimant proved he was entitled to temporary total disability from January 24, 2006 to June 2, 2006. We find that the claimant did not prove he was entitled to additional temporary total disability compensation.
D. Permanent Partial Disability
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The administrative law judge found, “Respondent #1 should pay permanent partial disability to this claimant in the amount of 9 percent to his neck and 7 percent for his left shoulder problems as assessed by Dr. Johnson and Dr. Bebout.” Because the claimant did not prove that he sustained a compensable injury to his neck or cervical spine, the Full Commission does not affirm the administrative law judge’s award of 9% for the neck. However, we affirm the ALJ’s finding that the claimant proved he sustained a 7% anatomical impairment for the shoulder.
The Commission has adopted the Guides to the Evaluation of PermanentImpairment (4th ed. 1993) to be used in assessing anatomical impairment See, Commission Rule 099.34; Ark. Code Ann. § 11-9-522(g). The instant claimant sustained a compensable injury to his left shoulder on July 9, 2003. On October 21, 2003, Dr. Bebout performed an anterior acromioplasty and excision of thickened bursa of the left shoulder. On September 29, 2004, Dr. Bebout assigned a 7% anatomical impairment rating “for loss of motion of the shoulder.” The parties deposed Dr. Bebout on October 25, 2006. Dr. Bebout testified that the rating he assigned was based on “passive” range of motion. “Passive” range of motion is considered an objective finding in assessing anatomical impairment for a shoulder injury. See, Hayes v. Wal-Mart Stores, 71 Ark. App. 207, 29 S.W.3d 751
(2000); Ark. Code Ann. § 11-9-102(16)(A). Dr. Bebout also testified that his rating was based on Table 27 in the Guides.
The Full Commission affirms the administrative law judge’s finding that the claimant proved that he sustained a 7% anatomical impairment rating for the compensable left shoulder injury. We find that the 7% rating assessed by Dr. Bebout was taken from the Guides and was based on objective medical findings not within the claimant’s voluntary control. We also find
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that the compensable injury was the major cause of the claimant’s anatomical impairment, pursuant to Ark. Code Ann. § 11-9-102(4)(E)(ii).
In considering claims for permanent partial disability benefits in excess of the employee’s percentage of permanent physical impairment, the Commission may take into account, in addition to the percentage of permanent physical impairment, such factors as the employee’s age, education, work experience, and other matters affecting his future earning capacity. Ark. Code Ann. § 11-9-522(b)(1). “Permanent total disability” means inability, because of compensable injury, to earn any meaningful wages in the same or other employment. Ark. Code Ann. §11-9-519(e)(1).
In the present matter, the administrative law judge found that the claimant did not prove he was permanently and totally disabled, but that the claimant proved he was entitled to wage-loss disability in the amount of 16%. The Full Commission affirms this finding.
The claimant is age 56 and has earned an associate degree in computer electronics. The claimant has worked primarily as an industrial electrician. The claimant began working for the respondent-employer in 1998. The claimant’s work was sometimes physically demanding. The claimant sustained a compensable injury to his left shoulder on July 9, 2003. Dr. Bebout performed surgery on the claimant’s shoulder and subsequently assigned a 7% anatomical impairment rating. The claimant stopped working entirely on or about January 24, 2006. A Functional Capacity Evaluation in May 2006 showed that the claimant was able to perform restricted work duties. The claimant testified that he did not return to work for the respondent-employer and the claimant had in fact filed for social security disability.
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Although the claimant now has physical restrictions as a result of the compensable injury to his left shoulder and surgery, the record does not show that the claimant is permanently and totally disabled. The Full Commission therefore affirms the administrative law judge’s finding that the claimant is entitled to wage-loss disability in the amount of 16%.
E. Second Injury Fund
Finally, liability of the Second Injury Fund comes into question only after three hurdles have been overcome. First, the employee must have suffered a compensable injury at his present place of employment. Second, prior to that injury the employee must have had a permanent partial disability or impairment. Third, the disability or impairment must have combined with the recent compensable injury to produce the current disability status. Mid-State Constr. Co. v. Second Injury Fund, 295 Ark. 1, 746 S.W.2d 539 (1988).
In the present matter, the administrative law judge found that the Second Injury Fund was not liable. The Full Commission affirms this finding. The first hurdle for Second Injury Fund liability was overcome, in that the claimant sustained a compensable injury at his present place of employment. With regard to the second hurdle, i.e., a prior disability or impairment, the claimant testified that he had received a prior impairment rating for his low back. There are no medical records before the Commission establishing a prior impairment rating. Yet even if the claimant did have a prior impairment or disability, there is no indication that such impairment or disability “combined” with the compensable injury to produce the claimant’s current disability status. Liability for the claimant’s wage-loss disability shall be the sole responsibility of Respondent No. 1.
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After reviewing the entire record de novo, the Full Commission finds that the claimant proved he sustained a compensable injury to his left shoulder. The claimant did not prove that he sustained a compensable injury to his neck or cervical spine. The claimant did not prove that he was entitled to additional temporary total disability compensation after January 24, 2006, and the claimant did not prove that treatment provided for the neck or cervical spine was reasonably necessary. The claimant proved that he was entitled to a 7% anatomical impairment rating for the left shoulder, and that he was entitled to wage-loss disability in the amount of 16%. The Second Injury Fund is not liable for the instant claimant’s wage-loss disability. The Full Commission therefore affirms the administrative law judge’s opinion in part and we reverse in part.
The claimant’s attorney is entitled to fees for legal services pursuant to Ark. Code Ann. § 11-9-715(Repl. 2002). For prevailing in part on appeal, the claimant’s attorney is entitled to an additional fee of five hundred dollars ($500), pursuant to Ark. Code Ann. § 11-9-715(b)(2) (Repl. 2002).
IT IS SO ORDERED.
___________________________________ OLAN W. REEVES, Chairman
Commissioner McKinney concurs, in part, and dissents, in part.
CONCURRING AND DISSENTING OPINION
I must respectfully concur, in part, and dissent, in part, from the majority opinion. Specifically, I dissent from the
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finding that the claimant proved by a preponderance of the evidence that he sustained a compensable injury to his shoulder on July 9, 2003; that the claimant proved by a preponderance of the evidence that he suffered a permanent anatomical impairment rating of 7% for his left shoulder; and that the claimant is entitled to wage loss disability benefits in excess of his permanent anatomical impairment rating in the amount of 16%. However, I concur in the majority’s finding that the claimant failed to prove by a preponderance of the evidence that he sustained a compensable neck injury.
Although the claimant testified that he did not have any prior problems with his left shoulder the medical records clearly demonstrates that on June 10, 2003, the claimant experienced left shoulder pain. Dr. Asbury’s medical note from this date states that the claimant had rotator cuff syndrome. The symptoms were severe enough that Dr. Asbury administered a steroid injection to the claimant’s left shoulder. Dr. Asbury’s notes unequivocally reveal that the claimant had left shoulder complaints for at least a month before the July 9, 2003, incident. However, when the claimant was questioned about this at the hearing, the following exchange took place:
Q. Are you telling us that the day you walked into Dr. Asbury’s office on June 10
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and he injected your shoulder, that was the first day you had ever had any pain in your left shoulder?
A. I don’t remember, and that is the honest-to-God trust.
A month after the claimant received a steroid injection in his left shoulder, the claimant presented to Dr. Clark on July 11, 2003. The claimant reported pain in the very same shoulder in which he had received the steroid injection the previous month. The claimant did not mention to Dr. Clark that he had had problems with his left shoulder a month before this alleged incident. He also failed to tell Dr. Clark that he had received an injection to his left shoulder on June 10, 2003. Dr. Clark referred the claimant to Dr. Wolf who treated the claimant’s left shoulder with an injection. The claimant failed to mention to Dr. Wolf that he had received a prior injection to his left shoulder. In fact, Dr. Wolf’s August 18, 2003, medical note states, “There is no history of an injury.”
The claimant was ultimately referred to Dr. Bebout who performed an operation on the claimant’s left shoulder on October 21, 2003. Again, the claimant failed to tell Dr. Bebout that he had received a steroid injection from Dr. Asbury. The following
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exchange which took place with Dr. Bebout during his deposition, is especially enlightening:
Q. I am going to show you a report from Dr. Asbury dated June 10, 2003, and just ask you to review that. (long pause)
A. Yes. Uh-huh.
Q. Okay. Number one, do you have a recollection that Mr. Broom had told you that one month before this incident — this injury or accident he related to you — he had left shoulder symptoms sufficient to require his personal physician to give him a steroid injection into the left shoulder joint?
A. No, I don’t recall that at all.
Q. As it relates to the issue of whether Mr. Broom’s left shoulder symptoms and problems from which you surgically treated him was either due to a specific incident or were symptoms which were due to a condition which pre-existed that incident, do you think that report is significant?
A. Yes, sir.
Q. Okay. How? Why?
A. Well, it’s the same type of symptoms that I saw him for and, you know, he said — well, I guess he’s given him a couple of injections because he said his first injection had a hundred percent resolution of symptoms, but he doesn’t say on this report when that was — how — so, you know, it seems that the symptoms seemed, you know, the same as when we saw him.
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Q. There are some differences in Dr. Asbury’s findings. It appears that although he said, I believe he said a great deal of pain, his range of motion doesn’t appear to be as restricted as you found later.
A. That’s true.
Q. Despite the differences that — although I don’t think that Dr. Asbury specifically stated what his range of motion findings were — is a difference in the range of motion necessarily significant in whether or not the condition pre-existed the July 9 incident or was caused by the July 9 incident if the symptoms were otherwise the same?
A. Well, his loss of motion as you noted from June to when we saw him in October certainly could reflect, you know, an injury on top of a pre-existing condition that allowed him to get more inflammation in the shoulder which results in what we call adhesive capsulitis, where you get the increased stiffness as well as the, you know, the rotator cuff symptoms.
Q. Did he have adhesive capsulitis?
A. Well, by definition he did because if motion is limited, anytime you have limited motion, you know, we label that as adhesive capsulitis. It doesn’t say, you know, what causes the adhesive capsulitis. Adhesive capsulitis is really a symptom, not a diagnosis. So we still have to find out what the underlying reason for the adhesive capsulitis is, whether it’s chronic arthritis or an injury that caused it. I mean, adhesive capsulitis can be caused by problems with your pancreas and yourPage 33
gallbladder. You know, a lot of things can cause adhesive capsulitis.
Q. Okay. Can adhesive capsulitis also be something that develops gradually?
A. Yes.
Q. Okay. Getting back to Mr. Broom’s situation specifically, I’ll now show you Dr. Asbury’s June 10, 2003, report where we have left shoulder symptoms, which I believe you said were — I don’t want to use the wrong word — the same or similar? How would you characterize them as the symptoms you eventually saw him for?
A. Very similar.
Q. Okay. Dr. Asbury did a steroid injection, which according to this report gave him symptomatic relief. Have I accurately characterized what he said so far?
A. Yes, sir. Yes, sir.
Q. Okay. Then it was a period of 30 days from June — from the injection of June 10, 2003, to the July 9, 2003, incident. If I’m understanding your prior testimony correctly, it would not be unusual for the effects of the steroid to wear off during a period of 30 days —
A. That’s correct.
Q. — — and the symptoms to return, whether or not any injury occurred, or whether or not an injury occurred?
A. That’s correct.
Q. Okay, so the fact that Mr. Broom developed new symptoms 30 days after thePage 34
June 10, 2003, steroid injection does not in and of itself mean that there had to be a new precipitating event?
A. That’s correct.
Q. It could happen with a new precipitating event, it just didn’t necessarily have to?
A. That’s right.
Q. And in determining whether there was a new precipitating event or the significance of the new precipitating event, there is nothing in your physical exam or your findings during the course of the operation that suggested it had to be one or the other?
A. Right.
Q. Okay. So basically we’re left with a situation where in order to implicate the incident of July 9, 2003, at all, we have to rely upon Mr. Broom?
A. I would say so.
Q. But even if he had an incident on July the 9th, it could be that his underlying condition was not changed?
A. That’s right.
Q. And whatever complaints and treatment were necessitated after that July 9, 2003, event, may have been necessary even if that incident had not occurred?
A. It could work out that way.
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Furthermore, Dr. Bebout could not state within a reasonable degree of medical certainty whether the claimant’s need for surgery was caused by the incident of July 9, 2003, or whether it was caused by the claimant’s pre-existing condition. Dr. Bebout testified at his deposition:
Q. There would be nothing medically contra-indicated by that timeframe?
A. Right.
Q. With this new information about Dr. Asbury’s report —
A. Uh-huh.
Q. — — can you state within a reasonable degree of medical certainty whether Mr. Broom’s problems that you ultimately treated him for were caused by the incident of July 9, 2003, as opposed to having been ongoing and developing prior to that?
A. No, I can’t be sure.
Q. Do you wish you’d known about this?
A. Well, it wouldn’t have changed the way I treated him.
Q. You would have treated him the same regardless of whether it was an ongoing problem or the result of an injury?
A. Right.
Q. Okay, but as far as trying to state whether it was related to an injury at work or due to an ongoing condition of whateverPage 36
cause, that would have been useful information?
A. Yes.
. . .
Q. Okay. If I recall correctly, you ultimately rated him in September of 2004. Is that correct?
A. Yes.
Q. Okay. September 29, 2004?
A. Yes.
Q. We talked about the question of — with the new information based upon Dr. Asbury’s report — you were not in a position to say within a reasonable degree of medical certainty whether the shoulder symptoms either pre-existed or were related to the incident of July 9, 2003. Let me ask you that same question about the cervical symptoms which developed a month after you operated on the shoulder. With the several months lapsed between the July 9, 2003, incident and the onset of those cervical symptoms, can you state within a reasonable degree of medical certainty whether the cervical symptoms were related to July 9, 2003, incident?
A. No, not really.
Dr. Bebout was ultimately unable to opine that the claimant’s neck problems were related to any incident that happened in October either. Further, the question was asked at the deposition:
Q. Okay. You state there in the last paragraph, second sentence, “I believe this
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is an ongoing problem from his original worker’s [sic] comp injury.” Based on the information made available to you today during the course of the deposition, would that still be your opinion today?
A. I couldn’t say, definitely, that it was from the worker’s [sic] comp injury.
Q. Okay. To make any connection between the accident and his ongoing condition, whether treated by your or Dr. Johnson or whoever, you’re necessarily having to rely upon what Mr. Broom told you?
A. Yes, sir.
When I take the opinion of Dr. Bebout, that he was unaware that the claimant had received an injection one month prior to his July 11, 2003, visit, it is apparent that Dr. Bebout could not state within a reasonable degree of medical certainty whether or not the claimant’s arm problems were related to a July 9, 2003, incident. All we have is the claimant’s self-serving testimony that he did not have problems prior to the July 9, 2003, incident, on the same level as he did when he went to seek medical attention on June 10, 2003. In my opinion, the evidence fails to preponderate that the claimant’s problems were related to any alleged work related incident. Further, the history that the claimant related to Dr. Bebout when he made his initial opinion that the arm problems were related to the July 9, 2003, incident, were based upon the claimant’s self-serving history.
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A medical opinion based solely upon claimant’s history and own subjective belief that a medical condition is related to a compensable injury is not a substitute for credible evidence. Brewer v. Paragould HousingAuthority, Full Commission Opinion January 22, 1996 (Claim No. E417617). Moreover, the Commission is not bound by a doctor’s opinion which is based largely on facts related to him by the claimant where there is not sufficient independent knowledge upon which to corroborate the claimant’s claim. Roberts v. Leo Levi Hospital, 8 Ark. App. 184, 649 S.W.2d 402
(1983). Accordingly, I find that the claimant has failed to prove by a preponderance of the credible evidence that he sustained either a shoulder or cervical injury at work. Consequently, I must dissent from any award of benefits.
Therefore, for all the reasons set forth herein, I must dissent from the majority’s finding that the claimant proved by a preponderance of the evidence that he sustained a compensable injury to his left shoulder on July 9, 2003. However, I concur with the majority’s finding that the claimant did not sustain a compensable cervical injury.
___________________________________ KAREN H. McKINNEY, Commissioner
Commissioner Hood concurs in part and dissents in part.
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CONCURRING AND DISSENTING OPINION
I must respectfully concur in part and dissent in part. Specifically, I concur with the finding that the claimant sustained a compensable shoulder injury and that he is entitled to related benefits. I also agree that the Second Injury Fund should bear no liability in the present case. However, I must respectfully dissent from the finding that the claimant did not sustain a compensable neck injury and awarding related benefits. Finally, while I agree with the principle opinion that the claimant is entitled to wage loss benefits in the amount of at least 16%, I would have found the claimant to be permanently and totally disabled.
I find that the claimant has shown that he sustained a compensable neck injury. Though the Majority finds that the claimant had no record of treatment to his neck until November 2003, the claimant credibly testified that he felt pain in his neck from the onset of the injury. Furthermore, it is apparent that the claimant had neck related symptoms including pain radiating down his arm from the onset of the injury. In fact, Dr. Bebout specifically indicated that the claimant’s injuries and symptoms would be consistent with sustaining a neck injury. Yet, despite this evidence, the Majority has refused to consider or acknowledge the opinion of Dr. Bebout. The failure to give the opinion of Dr. Bebout in any weight is, in my opinion, reversible error.
The claimant worked as an instrumentation electrician for the employer for approximately five years before the incident giving rise to the present claim. The claimant testified that on July 9, 2003, he was injured when carrying a motor. The claimant indicated that he was taking the stairs over the conveyors while carrying a motor,
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when he fell. The claimant described that the motor weighed some 110-120 pounds. He indicated that he missed a step and tried to catch himself with his right arm. However, when he tried to catch himself and let go of the motor with his right arm, the weight of the motor pulled his left arm down.
The claimant testified that he suffered from immediate pain from the corner of his neck down his shoulder and down his arm. The claimant said that he continued to work after the injury, and that he went to the doctor some two days after the injury occurred. The claimant said that Dr. Bebout performed surgery on his shoulder. He said that after the surgery, his range of motion improved and that his pain was intermittent. The claimant said that he also suffered from intermittent numbness and tingling in his arm after the surgery.
At the time of the hearing, the claimant admitted that he had suffered minor problems with his shoulder before the work related injury. Indeed, in early June 2003, the claimant was treated for left shoulder pain. The claimant was diagnosed with rotator cuff syndrome. He was given an injection and told to return as needed. The claimant was noted to have 100% resolution of his symptoms. At the time of the hearing, the claimant testified that after receiving the injection, he had no further shoulder problems.
The claimant was seen at Cooper Clinic, P.A., on July 11, 2003. At that time the claimant reported that he had pain in his left shoulder after carrying a motor on stairs and feeling a pop. The claimant reported feeling pain in a radiating fashion down to the lateral aspect of his shoulder. X-rays were taken and indicated, “no fracture,
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dislocation or significant degenerative change.” The claimant was diagnosed with left AC joint strain, given medication, and placed on light duty. He was also instructed to return in 7-10 days. On July 19, 2003, the claimant was noted to have decreased range of motion and was prescribed physical therapy and medication.
The claimant continued to receive treatment and on August 1, 2003, an MRI was ordered to rule out a rotator cuff tear. The MRI indicated,
Tiny focal area of increased signal within the supraspinatus tendon, could represent a tiny partial tear or tiny focal perforation. No tendinous retraction. Mild hypertrophy and downward sloping of the acromion process.
The claimant returned to Dr. Holder, who indicated the claimant could remain on light duty work, but referred the claimant to Dr. Michael Wolfe. Dr. Wolfe indicated that the claimant had been suffering from shoulder pain for one month and that there was no history of injury. He indicated that the claimant had a partial tear to the furnucle perforation to the supraspinatus. Dr. Wolfe gave the claimant an injection and prescribed physical therapy. He also indicated that the claimant would need to remain on restriction from full duty work.
The claimant returned to Dr. Wolfe on September 4, 2003. Dr. Wolfe noted that the claimant still had decreased range of motion and pain. Dr. Wolfe also indicated that the claimant was suffering from numbness and tingling in his hand which had been bothering the claimant, “since his injury”. Dr. Wolfe indicated the claimant had a positive Tinel’s at the wrist and a positive Phalen’s sign. Dr. Wolfe diagnosed the claimant with carpal tunnel syndrome and impingement syndrome with a possible rotator
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cuff tear. Dr. Wolfe gave the claimant a cock-up splint to wear at night. He also referred the claimant for an EMG and a NCV and continued the claimant on light duty work.
The claimant’s EMG and NCV returned as normal. On September 11, 2003, Dr. Wolfe indicated that the claimant had MRI evidence of a partial rotator cuff tear. He also opined the claimant was a candidate for surgery. Accordingly, he referred the claimant to Dr. Bebout for a surgical consultation.
On October 9, 2003, Dr. Bebout treated the claimant. The report from that day provides,
He injured his left upper extremity. This happened when he was trying to carry a heavy pump and motor. The motor slipped out of his right hand, then all of the load was on his left arm, and it jerked and pulled and hurt the shoulder. This happened on 09 July of this year. He has been having trouble with it ever since. It has not improved.
He has had some steroid injections and some therapy. He had a MRI scan which showed positive tenopathy and increased signal in the supraspinatus tendon, but no direct evidence of a tear.
Dr. Bebout noted the claimant had some degenerative changes in the AC joint in the form of spurring on the distal clavicle and the acromion process. Dr. Bebout gave the following assessment,
1. Tendonitis/bursitis, which I do not think is going to settle down because of the arthritic changes of the AC joint. I think he needs a Mumford anterior acromioplasty of this shoulder. Bursectomy expiration rotator cuff which is probably intact, to get over this injury. This will be scheduled once it is approved through Workers Comp as outpatient procedure.
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The surgery was performed on October 21, 2003. On November 4, 2003, Dr. Bebout described the surgery and indicated that the claimant had a Mumford anterior acromioplasty of the left shoulder. Dr. Bebout noted that the claimant’s rotator cuff was intact but that he had a thickened and inflamed subdeltoid.
On November 19, 2003, during postoperative treatment, the claimant was noted to have paresthesia type symptoms in his left upper extremity. He also complained of radicular pain in his neck and in his upper trapezius and the base of his neck. X-rays of the claimant’s cervical spine were performed. The claimant was noted to have degenerative changes throughout his cervical spine and to suffer from stenosis at multiple levels. An MRI was later recommended. On December 15, 2003, the MRI was performed and revealed,
MRI CERVICAL SPINE:
Sagittal T1 and double echo images of the cervical spine were performed with axial gradient echo images and correlated with plain films with 19 November 2003. There is moderate spondylitic ridging with associated mild disc protrusion at C3-4 with posterior element hypertrophy as well and moderate canal and biforaminal stenosis at this level. There is bilateral posterolateral disc bulges or protrusions at C6-7, slightly more prominent on the right, may actually be a small protrusion, but without foraminal or significant canal stenosis. Marrow and spinal cord signal normal.
IMPRESSION:
Spondylitic ridging and disc protrusion and moderate canal stenosis C3-4. Disc bulging vs. very mild protrusion C6-7 as described.
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On December 18, 2003, Dr. Bebout indicated that the claimant had significant stenosis at C3-4, which he believed was causing the claimant’s ongoing shoulder complaints. As such, he referred the claimant to a neurosurgeon.
On December 22, 2003, Dr. Armstrong indicated that the claimant’s condition was not surgical, but recommended treatment in the form of physical therapy, use of a TENS unit, and muscle relaxers. On March 3, 2004, the claimant submitted to an FCE which revealed that the claimant had given consistent effort and reasonable reports of pain. The FCE report further indicated that the claimant was to perform absolutely no crawling and that he was not to perform overhead lifting. Likewise, the claimant was restricted from performing repetitive activities with his left arm if above shoulder height.
The claimant continued to receive treatment. On May 12, 2004, Dr. Bebout specifically indicated that the claimant’s symptoms appeared to be more related to a neck injury than due to a residual shoulder injury. Dr. Bebout then referred to Dr. Michael Standefer. Dr. Standefer initially treated the claimant on June 24, 2004, for ongoing complaints of muscle spasms in the neck and left shoulder in the back around his shoulder blade. Dr. Standefer indicated that the claimant appeared to have,”a focal disc bulging/protrusion/osteophyte formation at C3/-4 with focal disc bulging/protrusion/osteophyte formation at C3-4 with moderately severe canal stenosis.”
The claimant continued receiving treatment and on July 21, 2004, was noted to have muscle spasms. Likewise, on July 22, 2004, the claimant was noted to have left arm atrophy. On July 22, 2004, the claimant underwent a steroid injection and
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nerve block for treatment of his shoulder and neck. Unfortunately, the claimant received no relief.
Eventually, on September 29, 2004, Dr. Bebout pronounced that the claimant was at MMI and assigned an impairment rating. Dr. Bebout indicated that the claimant remained symptomatic and assigned him an impairment rating as follows,
. . . he has an impairment of 12% to the upper extremity for loss of motion to the shoulder which equates to 7% whole person and DRE category 3 for cervicothoracic symptoms and radiculopathy which equates to 15% whole person, page 3/104 for a combined total of 21% whole person disability for his current problems.
On October 28, 2004, the claimant again reported to Dr. Bebout. On that occasion, the claimant reported that he had suffered an exacerbation to his neck after he had fallen off a four foot platform at work and then hitting his head on a buggy. Repeat x-rays were performed and showed no significant change in the claimant’s condition. Dr. Bebout opined that he believed the claimant’s ongoing problems were related to a neck injury as opposed to a shoulder injury. He recommended another MRI, which revealed, “Moderate dorsal spondylotic riding and disc protrusion C3-4 resulting in mild to moderate spinal canal stenosis and moderate bilateral foraminal stenosis.”
On December 1, 2004, the claimant returned to Dr. Bebout. At that time Dr. Bebout indicated that he believed the claimant’s condition was ongoing and related to his original workers’ compensation injury. He prescribed the claimant medication and referred him to a neurosurgeon. On February 5, 2005, the claimant was treated by Dr. Johnson, who indicated that the claimant had neck and shoulder pain that
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went into the claimant’s left arm. The claimant was also noted to be suffering from spasms. After an examination, Dr. Johnson recommended the claimant undergo surgery.
On May 11, 2005, Dr. Johnson performed surgery in the form of an anterior cervical diskectomy and fusion at C3-4. The claimant was initially noted to have some symptom resolution after the surgery. However, he subsequently began suffering from arm and neck pain again. Dr. Johnson opined that the pain might be related to adjacent disc problems. The claimant continued to receive treatment from Dr. Johnson and eventually, on June 2, 2006, Dr. Johnson assessed the claimant with a 9% impairment rating.
The claimant also underwent an FCE on May 2, 2006. The claimant was noted to have given a consistent and full effort throughout the test. Likewise, the claimant was noted to have appropriate pain responses. Based on the results of that test, the examiner concluded, “The patient is functioning at less than sedentary level according to the lifting profile.”
The deposition of Dr. Bebout was also introduced in the record. Dr. Bebout testified that the claimant relayed suffering from an injury on July 9, 2003. Medical reports from Dr. Bebout were included with the deposition. On a report dated October 9, 2003, the claimant circled, “No” in response to the question, “Have you ever injured this part of your body before?” Dr. Bebout he noted that there was no specific statement by the claimant indicating that he had no history of shoulder problems. Rather, the report simply asked if the claimant had ever injured his shoulder before. Dr. Bebout indicated that his notes set forth that the claimant had been treated by Dr. Asbury. The
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notes also reflected that Dr. Wolfe had administered the claimant a steroid injection and recommended physical therapy. Dr. Bebout indicated that it would not be uncommon for a steroid shot to be temporarily effective and for the effectiveness of that treatment to be lacking when repeated.
Dr. Bebout further testified that he had examined the claimant and his MRIs. He indicated that the spurs in the claimant’s shoulder area as well as the arthritis were there at the time of the accident. However, he indicated that the nature of the claimant’s injury would be consistent with causing an onset of symptoms. He further described that it was not uncommon for shoulder and neck pathologies to be confused with one another.
Dr. Bebout agreed that the mechanism of the type of injury which the claimant experienced on July 9, 2003, would translate into trauma to his left arm, as well as to his cervical spine. Dr. Bebout was asked if it was likely that the claimant’s physical event, his accident on July 9, 2003, probably caused the symptoms he had when he first saw the claimant. Dr. Bebout responded, “I think it would cause a shoulder to stiffen up like that, yes sir.” Dr. Bebout agreed that if the claimant had a pre-existing condition and there was an event that triggered his symptomology and those symptoms never abated, he might agreed that the major cause for the claimant’s need for treatment would be that triggering event. Dr. Bebout acknowledged that his opinion would be based in part on the history given by the claimant.
Dr. Bebout was asked, “Is it likely that the claimant had some neck involvement all along and it simply was not focused upon because of the immediacy of his
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shoulder problems?” and Dr. Bebout responded, “You know, one symptom masks or over lies another one because it just is more prominent, and once you get one under control, then the one that wasn’t so symptomatic becomes apparent.” Dr. Bebout testified that based on information acquired during the taking of this deposition, it appeared to him now that the treatment the claimant required for his shoulder was due to the incident in July of 2003, and not from any pre-existing condition.
Dr. Bebout testified that he was acquainted with Dr. Arthur Johnson and considered him to be a good neurosurgeon. Dr. Bebout indicated that he was comfortable relying on Dr. Johnson’s opinion that what he treated the claimant for was likely due to the July 2003 accident. He further stated that Dr. Asbury was a good physician and that he had no reason to doubt his note indicating the claimant’s shoulder symptoms resolved after an injection. Significantly, he indicated that it would be unusual for the claimant to have such a severe loss of range of motion after the shot unless some intervening cause had occurred. He also stated that the incident with the motor would be precisely the type of incident that would be consistent with causing the claimant’s shoulder to stiffen and to cause a lack of range of motion.
On cross examination by the Second Injury Fund, Dr. Bebout was asked if the claimant’s neck problems and symptoms increased after his fall on October 21, 2004. Dr. Bebout respondent, “No. I thought, like he said, this was an ongoing problem that we had been dealing with from a year ago, I guess-from October of 2003. It seemed to have the same type of problems that he had been having for the last year.”
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At the time of the hearing the claimant was 55-years-old. The claimant indicated that he had an associates degree in computer electronics. However, the only time the claimant used the degree was for a period of six to eight months after graduating in 1980 or 1981. At the time of the injury the claimant was working in instrumentation, electrician. The claimant was earning between $18.50 and $19.00 an hour and worked in excess of 40 hours week.
The claimant indicated that after the surgery in May 2005, he attempted to back to work in a light duty capacity. However, after some five or six months he was no longer able to work due to pain and the severity of his muscle spasms. The claimant indicated that he still has difficulties related to his injury. He indicated that he felt that he would have difficulty working due to the pain and muscles spasms he experienced. He further reported that those symptoms would increase if he went back to performing work that was similar to that he previously performed. The claimant also said that he has lack of strength and numbness in his left arm which would preclude him from working. Finally, the claimant testified that neither Dr. Holder or Dr. Sullivan had released him to return to work.
While it is apparent that the claimant did suffer from pre-existing degeneration in his shoulder and neck, I find that his work-related accident caused him to sustain compensable aggravations. In making this finding it is important to note that the claimant had been able to work up until the incident with the motor. Yet, afterwards he could not work and had to have two surgeries. Furthermore, Dr. Bebout indicated that the claimant’s need for treatment was directly related to lifting the motor.
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It is also incredibly important to note that the Second Injury Fund even admits the claimant had compensable injuries for which the claimant is entitled to benefits and an impairment rating. Rather, they argue that Respondent No. 1 bears liability for benefits.
It is equally important to note that Respondent No. 1 even seems to admit that the claimant at least had a compensable neck injury. Respondent No. 1 seeks to bar the claimant from receiving benefits for both the shoulder and the neck injuries. Rather, their entire brief deals with the compensability of the shoulder and then half-heartedly addresses the claimant’s neck in a Second Injury Fund context. When reviewing the record, it is evident that the reason the respondents have failed to address the compensability of the claimant’s neck is because there is absolutely no evidence that the claimant had neck symptoms before the accident at work. Thus, when that is considered in conjunction with the objective findings in the claimant’s neck and the opinion of Dr. Bebout, the only conclusion that can be reached is that regardless of whether the claimant sustained a compensable shoulder injury, there is simply no way the evidence would support a finding that the claimant did not sustain a compensable neck injury.
Claimant has the burden of proving by a preponderance of the evidence that his condition is causally related to his employment. See Estridgev. 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.
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875 S.W.2d 857 (1998). 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. VincentMedical 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. However, although a disabling symptom of a preexisting condition may be compensable if it is brought on by an accident arising out of and in the course of employment, the employee’s entitlement to compensation ends when his condition is restored to the condition that existed before the injury unless the injury contributes to the condition by accelerating or combining with the preexisting condition. See Arkansas Power LightCo. v. Scroggins, 230 Ark. 936, 328 S.W.2d 97 (1959).
In my opinion, the Majority has erred in finding the claimant did not sustain a compensable injury. The Majority seems to place great emphasis on the fact that the claimant did not explicitly complain of neck pain immediately after the injury. Unfortunately, they simply do not acknowledge that his condition and
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symptoms were consistent with having sustained a cervical injury. In fact, the Majority entirely fails to provide a reason to reject the opinion of Dr. Bebout, who indicated that the claimant’s symptoms were consistent with having sustained a neck injury on the date in question. Though the Commission has the authority to weigh the medical evidence, they simply cannot arbitrarily disregard the opinion of a physician as they have done in this instance.
I find that the claimant has shown that he sustained a compensable neck injury. While the claimant had degeneration in his cervical spine, he had never been symptomatic or required treatment. Yet, after the work accident, he suffered from severe muscle spasms and radiating pain through his arm. Notably, even when the claimant was treated for his shoulder in June 2003, the claimant was not reported to have neck pain, spasms, or radicular pain. Yet, afterward, the claimant, suffered from such findings. In fact, when the claimant initially reported for treatment after the accident, he was already noted to have radiating pain down his arm. Likewise, as early as September of 2003, the claimant was noted to be suffering from numbness and tingling in his hand that began at the time of the injury. Additionally, after the injury, the claimant was noted to have herniations in his cervical spine. Finally, it is significant to note that Dr. Bebout believed the claimant’s neck injury would be consistent with the motor incident described by the claimant. Therefore, it is evident that even if the claimant did not sustain a compensable shoulder injury, he did sustain a compensable neck injury.
There is no evidence that the claimant had ever suffered from neck pain prior to the incident where he was lifting the motor. Immediately after the accident, the claimant was noted to have pain that radiated into his shoulder. This is exactly the type of symptomology that is typically associated with cervical injuries. I also note that on September 4, 2003, the claimant reported numbness and tingling in his hand. This is also
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indicative of a cervical injury. Unfortunately, as the claimant also suffered from shoulder problems, the claimant’s neck was not properly diagnosed. Only after his shoulder surgery was performed, and the claimant continued to present with neck problems was he properly diagnosed.
Not surprisingly, once an MRI was finally performed, the claimant was noted to have a disc protrusion at levels C3-4 and C6-7. He was also noted to have significant stenosis at C3-4. By May 12, 2004, the physician had concluded that the claimant’s ongoing symptoms were due to a neck injury rather than due to any residual shoulder problems. At that point Dr. Bebout referred the claimant to Dr. Standefer, who noted the claimant suffered from ongoing complaints of muscle spasms in his neck and left shoulder in the back around his shoulder blade. Dr. Standefer also noted the abnormalities of the claimant’s MRI.
On December 1, 2004, Dr. Bebout specifically noted that the claimant was having spasms. He also indicated that the claimant’s condition was related to his work accident and recommended the claimant see a neurosurgeon. At that point Dr. Johnson recommended the claimant undergo surgery. Dr. Bebout’s opinion that the claimant’s cervical condition was work-related was further verified in his testimony. Dr. Bebout indicated that shoulder and neck problems often accompany one another and are difficult to diagnose. He indicated, “You know, one symptom masks or over lies another one because it is just more prominent, and once you get one under control, then the one that wasn’t so symptomatic becomes apparent.” He further reiterated that he believed the claimant’s cervical problems were due to the claimant’s accident at work.
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Respondent No. 1 argues that the claimant did not sustain a compensable injury. They offer little explanation of this other than the fact that the claimant had degeneration. Ironically, they then argue that the claimant sustained an injury in October 2004 at work and that the Second Injury Fund would have liability. The Second Injury Fund did not present any argument as to compensability. Rather, they seem to agree that the claimant sustained compensable injuries for which Respondent No. 1 should be liable.
Respondent No. 1 contends that because the claimant had degenerative changes in his cervical spine, he did not sustain a compensable cervical injury. However, as previously discussed, the claimant had never suffered from neck problems before this incident. Afterward, he immediately presented with cervical symptoms. Likewise, the claimant was specifically noted to have protrusions at two levels. This, in my opinion, is more consistent with an acute injury than a degenerative process. Finally, when Dr. Bebout’s testimony that the claimant’s condition was caused by the accident caused the claimant’s condition, it becomes apparent that the claimant suffered a compensable aggravation for which he required medical treatment. However, for unfathomable reasons, the Majority has ignored the medical evidence and opinion of Dr. Bebout, both of which establish compensability.
The Administrative Law Judge awarded the claimant wage loss benefits in the amount of 16% in excess of his anatomical ratings. This finding has been affirmed. Though I agree with the fact that the claimant is entitled to some wage loss, I find that the claimant has been awarded permanent and total disability benefits.
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The principle opinion has also found that the claimant’s 2006 FCE indicated that he could return to perform restricted duties. This is a gross interpretation of the actual report itself, which does indicate the claimant could work at sedentary work, but then indicates the claimant is operating at a less than sedentary level and that his pain and reports of abilities are legitimate. Multiple physicians have indicated that the claimant will be unable to return to work. Additionally, an FCE indicated that the claimant was able to perform work at a less than sedentary capacity. Furthermore, when considering the claimant’s ongoing complaints, age, limited work experience, and other factors, I find that he is permanently and totally disabled.
The wage loss factor is the extent to which a compensable injury has affected the claimant’s ability to earn a livelihood. The Commission is charged with the duty of determining disability. Cross v. Crawford CountyMemorial Hosp., 54 Ark. App. 130, 923 S.W.2d 886 (1996). In determining wage loss disability, the Commission may take into consideration the worker’s age, education, work experience, medical evidence and any other matters which may reasonably be expected to affect the worker’s future earning power. Such other matters are motivation, post-injury income, credibility, demeanor, and a multitude of other factors. Glass v. Edens, 233 Ark. 786, 346 S.W.2d 685 (1961); City of Fayetteville v. Guess, 10 Ark. App. 313, 663 S.W.2d 946 (1984). Curry v. Franklin Electric, 32 Ark. App. 168, 798 S.W.2d 130 (1990).
In this instance, the claimant is quite intelligent and has completed education up to his associates degree in computers. However, he has not used that degree since the early 1980’s. Furthermore, since that time, the claimant has worked as
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an industrial electrician, which requires manual labor duties. The claimant testified that when he worked for the respondent employer he had to lift in excess of 100 pounds. Likewise, when describing the other jobs he had worked at, the claimant indicated that they had equal physical demands.
When reviewing the claimant’s medical records, it is apparent that he can no longer work as an industrial engineer. In fact, it is apparent that he cannot even work in a sedentary capacity. Throughout the course of his treatment and to the time of his FCE and impairment rating, the claimant’s physicians believed the claimant incapable of working. Specifically, I note that in January 2006, Dr. Holder took the claimant off work. Likewise, on February 20, 2006, Dr. Johnson indicated that the claimant’s impairment was, “severe limitations of functional capacity, incapable of minimal (sedentary) activity”. Additionally, on March 24, 2006, Dr. Asbury, answered a question regarding the claimant’s ability to work as follows, “No ability to work. Severe limitation of functional capacity; incapable of minimal activity”. In response to the question, “What medical restrictions/limitations are you placing on the patient? (Activities of Daily Living, Driving, Lifting, Pulling, Pushing, and Amounts, etc.)”, Dr. Asbury responded, “all of the above @ present time”. Dr. Asbury also noted the claimant was motivated to return to work.
Finally, the claimant submitted to an FCE which indicated that the claimant had given full effort and that he was functioning at a less than sedentary capacity. On May 2, 2006, the claimant submitted to an FCE which indicated that the claimant remained on Methadone, Elavil, and Flexeril. The claimant reported that he still suffered
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from numbness in his left hand. The claimant was noted to have incredibly limited abilities. Specifically, he was noted to need to avoid low level or overhead work. He was also instructed to avoid situations requiring prolonged positions. He was also told to “Alternate between sit and stand prn”. Furthermore, as is rarely seen with an FCE, the claimant was described as functioning at a less than sedentary activity level according to the lifting profile. This is significant as the claimant was explicitly noted to be providing consistent and maximum effort during the test. Furthermore, it is important to note that after performing several of the test activities, the claimant was noted to have an increase in pain and spasms. He was also noted to exhibit signs of physical discomfort such as frequent shifting in his chair after 30 minutes and shrugging his shoulders. He also had to ask to rise after 50 minutes of sitting in a chair.
The findings of the FCE were completely consistent with the claimant’s testimony. At the time of the hearing, the claimant reported that he still had neck, shoulder, and upper back pain. He also suffered from numbness and weakness of his left hand. The claimant said he did not believe he would be able to work as it would cause his symptoms to increase. As the claimant’s testimony so closely parallels the findings of the FCE, which indicates the claimant was functioning at a less than sedentary level and that the claimant had legitimate complaints of pain, it is evident that the claimant has sustained serious injuries which have rendered him unable to work.
Considering the severity of the claimant’s condition, his ongoing use of medications, his limited work history, and his inability to even engage in less than
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sedentary work, I find that it is evident that the claimant is unable to return to work in any capacity.
For the aforementioned reasons, I respectfully concur in part and dissent in part.
____________________________ PHILIP A. HOOD, Commissioner
NUNC PRO TUNC ORDER
The Full Commission, on its own motion, finds that a clerical error exists in the order filed November 16, 2007 stating that the decision of the Administrative Law Judge is Affirmed.
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Instead, the Decision of the Administrative Law Judge should state, Affirmed, in part and Reversed, in part. Ark. Code Ann. § 11-9-713(d) (Repl. 1996).
The order filed on November 16, 2007 is hereby modified only to include the corrected decision of the Administrative Law Judge. In all other respects, the order shall remain the same and shall not be otherwise affected.
IT IS SO ORDERED.
___________________________________ OLAN W. REEVES, Chairman
________________________________ KAREN H. McKINNEY, Commissioner
________________________________ PHILIP A. HOOD, Commissioner
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