CLAIM NO. E512350
Before the Arkansas Workers’ Compensation Commission
OPINION FILED SEPTEMBER 15, 1998
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by DENVER L. THORNTON, Attorney at Law, El Dorado, Arkansas.
Respondent represented by W. LEE TUCKER, Attorney at Law, Bryant, Arkansas.
Decision of Administrative Law Judge: Affirmed
[1] OPINION AND ORDER[2] Claimant appeals from a decision of the Administrative Law Judge filed January 28, 1998, finding that claimant failed to prove by a preponderance of the evidence entitlement to permanent partial disability benefits in excess of the 8% impairment rating assigned by the claimant’s treating physician. Based upon our denovo review of the entire record, we find that claimant has failed to prove entitlement to further benefits. Therefore, we find that the decision of the Administrative Law Judge must be and hereby is affirmed. [3] Claimant sustained an admittedly compensable injury on August 17, 1995. At the hearing held on January 5, 1998, the sole issue was claimant’s entitlement to permanent partial disability benefits in excess of the 8% physical impairment rating assigned by Dr. William Hefley. At the hearing, claimant contended that he was permanently and totally disabled, or in the alternative, entitled to permanent partial disability benefits in excess of the physical impairment rating previously accepted by respondent. Conversely, respondent contended that claimant has received all appropriate benefits owed on this claim. After reviewing the evidence impartially, without giving the benefit of the doubt to either party, we agree with respondent. [4] Claimant was fifty-five years old when he sustained his compensable injury. Claimant’s injury occurred when a tree limb fell on the claimant’s right shoulder resulting in a clavicle fracture. As a result of this injury, claimant underwent a right shoulder arthroscopy, percutaneous acromioplasty and percutaneous distal clavicle excision on March 28, 1996, performed by Dr. Hefley. After several follow-up visits, claimant was eventually returned to full duty by Dr. Hefley on July 2, 1996. Dr. Hefley’s examination on that date revealed full range of motion. Dr. Hefley’s July 16, 1996, office note reflects that claimant had returned to work, but worked only three days. The examination, however, was normal. As a result of claimant’s surgery, Dr. Hefley assigned claimant a permanent partial physical impairment of 6% to the body as a whole. The record further reflects that between July 1996 and April 1997 claimant did not seek any additional medical treatment for his right shoulder. However, on April 22, 1997, claimant returned to Dr. Hefley with continued complaints of right shoulder pain. Dr. Hefley’s examination on that date again revealed full passive range of motion with no crepitation, warmth, redness, or swelling. Dr. Hefley obtained x-rays which were unchanged from claimant’s previous x-rays when claimant was released to return to work in July 1996. Due to claimant’s continued complaints of pain, Dr. Hefley ordered an MRI to rule out a rotator cuff tear. The MRI proved normal. Despite the normal examination and diagnostic studies, Dr. Hefley performed a second arthroscopic surgery, primarily for exploratory and diagnostic purposes to determine the cause of claimant’s pain. Dr. Hefley’s surgery letter dated July 17, 1997, states:
[5] On August 26, 1997, Dr. Hefley examined claimant in a follow-up visit. Although claimant continued to complain of discomfort in the shoulder, the examination was normal with full range of motion about claimant’s shoulder. At that time, Dr. Hefley stated in his report “I don’t know anything else to offer Willie to solve his shoulder pain problem.” Dr. Hefley further stated that claimant had reached maximum medical improvement from his second surgical procedure and released claimant to return to work without restrictions. Due to claimant’s second surgical procedure, Dr. Hefley assigned an additional 2% impairment rating to the body as a whole. [6] In determining wage loss disability, the Commission may take into consideration the workers’ age, education, work experience, medical evidence and any other matters which may reasonably be expected to affect the workers’ 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). A claimant’s lack of interest in pursuing employment with her employer and negative attitude in looking for work are impediments to our full assessment of wage loss. [7] Claimant testified that he has not been able to return to work despite Dr. Hefley’s release without restrictions. Claimant further testified that he is unable to help out around the house and all he does on a daily basis is watch his grandchildren and visit friends at deer camp. [8] Although claimant’s injury is not to be considered in a vacuum when assessing an employee’s claim for wage loss disability benefits, it is this injury which must always be the starting point for any wage loss analysis, as it is this injury, and this injury alone, which makes the claimant entitled to workers’ compensation benefits in the first place. As outlined above, and as qualified in Ark. Code Ann. § 11-9-522(B)(1) (Repl. 1996) this commission may consider the physical impairment rating, inaddition to other factors reasonably expected to affect the claimant future earning capacity. Moreover, the claimant’s motivation and attitude towards returning to work are important factors to be considered. As noted by the Administrative Law Judge, claimant’s injury has not affected claimant’s wage earning capacity. Claimant received a permanent anatomical impairment rating because he underwent surgery. Neither the injury nor the surgery have prevented claimant from returning to work. In fact, claimant’s treating physician has released claimant to return to work without restrictions. [9] In our opinion claimant is simply not motivated at this time to return to the productive wage earning segment of society. Claimant is currently drawing social security and simply lacks the motivation to return to work. The medical evidence, likewise, fails to support an award of wage loss disability benefits. Claimant’s physical examination were all normal. Even a second surgical procedure failed to substantiate a medical reason for claimant’s subjective pain complaints. Dr. Hefley even returned claimant to full duty, without restriction. Clearly, claimant’s injury has not produced any decrease in claimant’s wage earning capacity; therefore, we find that it would be improper to award wage loss benefits merely because of claimant’s age and limited education. Consequently, we cannot find that claimant has proven by a preponderance of the evidence entitlement to any wage loss disability in excess of his permanent anatomical impairment rating. [10] Accordingly, for those reasons set forth herein, we find that the decision of the Administrative Law Judge should be affirmed. [11] IT IS SO ORDERED.I took him to the operating room today for right shoulder surgery. I did a shoulder arthroscopic and the glenohumeral joint looked to be in good condition. There was no evidence of a superior labral detachment, as was though to be a possibility on the MRI. I did a revision acromioplasty and distal clavicle excision. Hopefully, this will improve his symptoms.
ELDON F. COFFMAN, Chairman MIKE WILSON, Commissioner
[12] Commissioner Humphrey dissents. [13] DISSENTING OPINION[14] I must respectfully dissent from the finding of the majority that claimant failed to demonstrate that he is permanently and totally disabled. [15] Claimant is fifty-eight years old. He has a fourth grade education. Claimant is unable to read, write, or perform simple math calculations. However, claimant stated he is able to print his name. He testified that he began working in the timber industry when he was thirteen years of age, and he has no other employment experience. Moreover, he has no vocational training. Claimant testified that he is right-hand dominant. [16] On August 17, 1995, claimant was struck by a tree limb resulting in a fracture to his right shoulder. Dr. William Hefley performed a right shoulder arthroscopy, percutaneous acromioplasty, and percutaneous distal clavicle excision on March 28, 1996. Although claimant was released to return to work following the first surgical procedure, he reported to Dr. Hefley in April of 1997 that he had only worked three days since the injury. A chart note dated April 22, 1997, explains that he was experiencing too much pain to work. Dr. Hefley administered an injection; however, claimant subsequently reported that the procedure was ineffective. A MRI was ordered, and although there was no evidence of a rotator cuff tear, a superior labrum tear could not be ruled out. Claimant was again injected in June of 1997 by Dr. Hefley. [17] On July 17, 1997, Dr. Hefley performed a second arthroscopy. His surgery report stated that there was no evidence of a superior labral injury. In an effort to reduce claimant’s pain, Dr. Hefley performed a revision acromioplasty and distal clavicle excision. [18] In his final chart note dated August 26, 1997, Dr. Hefley stated that he had nothing further to offer claimant in order to resolve his shoulder pain. Nevertheless, he imposed no restrictions on claimant’s work activities. In my opinion, it is important to note that all of the chart notes prepared by Dr. Hefley indicate that claimant was never pain free following his compensable injury. [19] Claimant stated that he is unable to operate a chain saw because of his inability to grip objects for extended time periods. Claimant indicated that the pain in his shoulder extends the length of his arm and into his fingers. He stated that the second surgical procedure failed to eliminate his pain. [20] Claimant testified that he is incapable of performing household chores, and mainly stays at home. He testified that he is able to sit in a chair; however, he has difficulty walking. Claimant explained that he had polio as a child, and steel bolts have been placed in his knees. It is claimant’s testimony that he is in constant pain. He stated that he takes over-the-counter medication; however, it is ineffective. Claimant testified that he is unable to hunt or fish as those activities cause shoulder pain. [21] On cross-examination, claimant testified that he made repeated attempts to perform his job both before and after the first surgery. He stated that each time Dr. Hefley instructed him to return to work, he followed those instructions. However, he stated he was simply incapable of working. Moreover, he stated that when he obtained a full release, his employer, Mr. Raymond Mitchell, indicated that there was no work for him to perform. Claimant acknowledged that he has not worked since August of 1997. His testimony reveals that he attempted to secure employment at a sawmill owned by Georgia Pacific; however, he was unsuccessful. Admittedly, claimant was unclear with respect to other attempts to obtain employment. However, counsel for respondents never asked for clarification from claimant. Notwithstanding claimant’s testimony regarding his attempts to return to work and secure new employment, the majority concludes that claimant is not motivated to return to the workforce. In my opinion, the evidence demonstrates otherwise. Thus, I fervently disagree with the majority’s conclusion with respect to claimant’s motivation. [22] An injured worker is entitled to permanent benefits in excess of her anatomical impairment rating by demonstrating a diminution of her wage earning capacity. Williams v, St. VincentInfirmary, 59 Ark. App. 148, 954 S.W.2d 302 (1997). The applicable statutory provision is Arkansas Code Ann. § 11-9-522 (b) (1) (Repl. 1996), which states:
[23] The medical evidence reveals that although Dr. Hefley opined that claimant could return to work without restrictions, he consistently documented claimant’s continued complaints of shoulder pain. In his final chart note, Dr. Hefley stated that “I don’t know anything else to offer Willie to solve his shoulder pain problem.” There is no evidence to suggest that claimant’s complaints of pain are feigned. [24] Claimant is right-hand dominant, and his permanent impairment relates to his right shoulder. Given the demands imposed by the logging industry, coupled with claimant’s unsuccessful attempts to return to work, it is my view that he is precluded from engaging in this type of work. His ability to grip the saw, which weighs approximately thirty pounds, has been compromised by the shoulder injury he sustained. His only work experience is in manual, unskilled labor which he began at age thirteen. Thus, claimant has no transferable skills. He stated that he is unable to perform household chores or engage in hobbies such as hunting and fishing. Claimant testified that he spends his days watching his grandchildren, or sitting at a deer camp. Claimant has a fourth grade education, and is illiterate. He is fifty-eight years old. Claimant experiences pain on a daily basis. He testified that each night, he must sleep with a pillow under his arm. [25] Considering all the relevant factors, I find that claimant is permanently and totally disabled. At the very least, it is my opinion that claimant has demonstrated that he is entitled to wage-loss benefits. [26] Based on the foregoing, I respectfully dissent. [27] PAT WEST HUMPHREY, Commissioner(b) (1) 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 reasonably expected to affect his future earning capacity.