CLAIM NO. F705424
Before the Arkansas Workers’ Compensation Commission
OPINION FILED JANUARY 20, 2010
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE EVELYN BROOKS, Attorney at Law, Fayetteville, Arkansas.
Respondents represented by the HONORABLE JAMES ARNOLD, II, Attorney at Law, Fort Smith, Arkansas.
Decision of Administrative Law Judge: Reversed.
OPINION AND ORDER
The claimant appeals an Administrative Law Judge’s May 12, 2009 opinion finding that the admittedly compensable work-related injury to the claimant’s right shoulder was not the major cause of her impairment, due to pre-existing arthritis in that shoulder.
After a de novo review of the entire record, the Full Commission reverses the opinion of the Administrative Law Judge that the claimant failed to prove that the compensable injury to her right shoulder was not the major cause of her impairment. The Full
Page 2
Commission awards the claimant the impairment rating of 6% to her right shoulder.
I. PROCEDURAL HISTORY
A hearing was held on February 24, 2009, and on May 12, 2009, the Administrative Law Judge filed his opinion. The Administrative Law Judge determined that the claimant had preexisting degenerative arthritis of the right acromioclavicular joint and that the admittedly compensable injury to the claimant’s right shoulder was not the major cause of her permanent impairment. The Administrative Law Judge found that Dr. Arnold’s opinion that the claimant’s compensable injury was the major cause of the permanent impairment rating to the left shoulder was inconsistent with his opinion that the injury was also the major cause of the permanent impairment rating to the right shoulder, because there was preexisting and symptomatic arthritis in her right shoulder.
II. ADJUDICATION
II. Ark. Code Ann. Sec. 11-9-102(4)(F)(ii)(a) provides that permanent benefits shall be awarded only upon a determination that the compensable injury was the major cause of the disability or impairment. “Major cause” is defined as more than fifty percent (50%) of the cause, and a finding of major cause shall be
Page 3
established according to a preponderance of the evidence. Ark. Code Ann Sec. 1-9-102(14)(A); see Pollard v. MeridianAggregates, 88 Ark. App. 1, 193 S.W.3d 738 (2004). Further, Ark. Code Ann. Sec. 11-9-102(4)(F)(ii)(b) provides that if any compensable injury combines with a preexisting disease or condition or the natural process of aging to cause or prolong disability or a need for treatment, permanent benefits shall be payable for the resultant condition only if the compensable injury is the major cause of the permanent disability or need for treatment.
The Full Commission finds that the claimant proved by a preponderance of the evidence that the work-related incident was the major cause of the impairment rating for her right shoulder injury. Dr. Arnold stated that the claimant’s right shoulder injury and impairment were caused, in the majority, by the work-related incident, even though she had prior right shoulder pain. The claimant was injured while working on a gas pump, using a push-pull movement with wrenches in each hand above chest level, when she experienced immediate and sharp pain in each shoulder. She received immediate treatment, but her symptoms became problematic, requiring the attention of a specialist. Her left shoulder was successfully treated with surgery
Page 4
by Dr. Arnold. The claimant had no history of left shoulder pain prior to the work-related injury. Dr. Arnold stated that the damage in her left shoulder, and the subsequent permanent impairment to her shoulder, were caused entirely by the work-related incident, because her symptoms started at the time of the incident.
The claimant had experienced right shoulder pain prior to the work-related incident. Her testimony and the records indicate that she experienced pain, related to arthritis, as early as the fall of 2005. The claimant saw her primary care physician for this pain. Her pain was noted in September 2005, but the next notation of right shoulder pain was one year later, on September 22, 2006, when a Medrol Dosepak was prescribed for it. Dr. Arnold explained at deposition that a Medrol Dosepak is a prescription for steroids typically given to treat inflammation and is used by primary care doctors to soothe musculoskeletal complaints.
A month later, the claimant was seen again by her primary care doctor, for right shoulder pain and other problems. It was noted that the steroids did not help, but no further treatment occurred. On December 1, 2006, x-rays of the claimant’s right shoulder showed degenerative changes in the acromioclavicular joint and
Page 5
an otherwise normal shoulder. On December 4, 2006, the primary care physician assessed degenerative arthritis of the right acromioclavicular joint, but no further treatment was planned or ordered.
The claimant presented on February 7, 2007, the day of her work-related incident, to the emergency room, complaining of pain in her right and left shoulders. The notes do not differentiate between the quality of the pain in each shoulder. The claimant denied experiencing “similar symptoms previously” and noted that she had a history of arthritis pain in her right shoulder. She was diagnosed with a muscle strain.
The claimant saw her primary care physician on February 13, 2007, with bilateral shoulder pain. It was noted that she had a December 2006 diagnosis of degenerative arthritis of the right AC joint and shoulder. The claimant described the work-related incident and the immediate sharp pain and the discomfort she experienced in both shoulders, which had not improved. She was given an injection, a prescription, and restricted duty. The physician indicated the expectation that this would resolve without further treatment. The claimant was released from care on February 19, 2007.
Page 6
On July 19, 2007, the claimant presented to Dr. Arnold, an orthopedic surgeon, with bilateral shoulder pain. She described the work-related injury and reported that she developed severe shoulder pain in both shoulders. Dr. Arnold noted that in her right shoulder, flexion was 180, extension was 30, abduction was 180, and adduction was 30. ER and SS were weak. The AC was tender. Bilateral x-rays showed a slight amount of AC arthrosis (joint disease) but were otherwise negative. His impression was bilateral shoulder pain secondary to probably AC arthropathy. He stated that he could not rule out a cuff tear, tendinosis or other. He recommend a conservative course of treatment including physical therapy and anti-inflammatories. He ordered an MRI. Dr. Arnold was under the impression that she had no pain in her shoulders prior to the incident. He felt that the incident was the “instigating factor.” He explained to her that the arthrosis was pre-existing, but it could have been aggravated by an event.
The claimant returned for a follow-up appointment on August 7, 2007 with Dr. Arnold, reporting that her left shoulder was worse. Her exam was unchanged, except that the left was more tender than the right. Dr. Arnold noted that the MRI was read as
Page 7
normal, and that he thought “most of it is AC arthrosis.” He recommended an injection on the left which gave her complete and immediate relief. If her pain returned, the next step would be a distal clavicle excision. A follow-up was planned in three months.
The claimant returned to Dr. Arnold on August 14, 2007 with a systemic reaction to the injection. She related the pain in her shoulders to the push-pull work she was doing in February 2007 at work. He felt she had AC arthropathy. The plan was to scope her shoulder and do a distal clavicle excision and acromioplasty. The surgery was performed on October 26, 2007, with pre-and post-operative diagnoses of left shoulder acromioclavicular joint arthropathy and an anterior acromial spur. Dr. Arnold performed a left shoulder diagnostic arthroscopy, arthroscopic acromioplasty, and open distal clavicle excision.
The claimant experienced improvement post-operatively and was happy with her results. On November 21, 2007, she reported to Dr. Arnold that her right shoulder was symptomatic in the same way that her left shoulder was. “The right shoulder is actually worse now than it has ever been.” Her right AC was “exquisitely tender.” X-rays and MRIs showed AC arthrosis of the right shoulder. His impression was right shoulder pain
Page 8
secondary to a work-related injury with AC arthropathy. The same surgical plan for her left shoulder was made for her right shoulder. The December 21, 2007 report of operation by Dr. Arnold reflected pre-and post-operative diagnoses of right shoulder acromioclavicular joint arthropathy and an anterior acromial spur. He performed right shoulder diagnostic arthroscopy, arthroscopic acromioplasty, and an open distal clavicle excision.
The claimant underwent physical therapy in the winter of 2008. On January 24, 2008, the claimant reported to Dr. Arnold that she was better than she was before the surgery and “happy.” On April 22, 2008, she underwent an impairment rating evaluation, with 6% to the whole body assessed for the right distal clavicle resection and 6% assessed for the left distal clavicle resection, based on the AMA Guides, 4th, table 49B. She also underwent a functional capacity evaluation on that date, which was valid. She showed the capacity to perform light duty, (20 pounds occasionally, 10 frequently, nominal weight consistently) but only with elbows strictly at her side, which was problematic due to her small frame and large abdomen.
Dr. Arnold gave a deposition in this claim, in which he first explained that the absence of left
Page 9
shoulder pain prior to the incident and the presence of left shoulder pain immediately upon the incident showed that the incident was the cause of her shoulder injury and subsequent impairment.
Dr. Arnold then explained that he was initially unaware of a prior diagnosis of arthritis and of right shoulder pain prior to the incident. He noted that the claimant had sought treatment from her primary care physician once in September 2005, a year later in September 2006 and in December 2006. In that time, a Medrol Dosepak was prescribed, and x-rays revealed some degenerative changes, not unusual for a person engaged in physical labor. He felt that this treatment by her primary care physician was indicative of a certain level of shoulder problem, but that at the time of the work-related incident, her right shoulder symptoms changed significantly, driving her to seek emergency attention and eventually the attention of a specialist. Prior to this incident, she had not required the services of an orthopedic specialist. She had not undergone physical therapy or injection therapy. His treatment of her was all new. He reviewed the records, and Dr. Arnold stated that the majority of her symptoms arose after the incident and not before. The first report of Dr. Lewis in February 2007 mentions sharp pain, but sharp pain is
Page 10
absent from any prior record concerning her shoulder. Sharp pain is consistent with this kind of push/pull injury.
Dr. Arnold explained that the mechanism of the incident, in which the AC joints were “sheared” in that push and pull motion, was consistent with the joint inflammation and damage the claimant sustained. The presence of prior symptoms, minor symptoms or remote treatment, would not change his opinion regarding causation, because of the strong corollary between the mechanism of injury and the claimant’s problems.
Dr. Arnold stated that a portion of the cause of the impairment rating was the work injury. He noted that some component of her problem was preexisting, “but in my opinion I would say the majority of it, 51% or more, was related to the work injury because after the injury that’s when she sought the treatment of injections and therapy, and eventually a surgery. . .” He also stated that the majority of her symptoms occurred after the incident, which shows that the majority of her problems and of her impairment rating were caused by work-related injury.
Dr. Arnold explained that “this is not a black-or-white thing.” The majority of the claimant’s right shoulder problems and resulting impairment were
Page 11
caused by the work-related incident. He repeatedly testified that all of her complaints in her right shoulder were not necessarily related to the work injury, but the majority of them were.
Based upon the claimant’s reports in the medical records that she had sharp pain bilaterally at the time of the February 2007 incident, that she had prior right shoulder pain due to arthritis, that she had never had pain similar to the pain she had at the time of the incident, and based upon Dr. Arnold’s testimony that the claimant’s condition before and after the incident had changed, that the injury is consistent with the push/pull activity she was performing, the Full Commission finds that the February 2007 work-related injury was the major cause of the claimant’s right shoulder injury and the resulting 6% impairment rating. The key is not so much the absence of pain prior to the incident, as in the case of the left shoulder, but the presence of a new pain and problem immediately after the incident. Dr. Arnold’s logic and opinion are absolutely consistent for both shoulders.
After a de novo review of the entire record, the Full Commission finds that the claimant has proven by a preponderance of the evidence that her admittedly compensable injury to her right shoulder was the major
Page 12
cause of her 6% permanent impairment rating to that shoulder.
All accrued benefits shall be paid in a lump sum without discount and with interest thereon at the lawful rate from the date of the Administrative Law Judge’s decision in accordance with Ark. Code Ann. Sec. 11-9-809 (Repl. 2002).
Since the claimant’s injury occurred after July 1, 2001, the claimant’s attorney’s fee is governed by the provisions of Ark. Code Ann. Sec. 11-9-715 as amended by Act 1281 of 2001. For prevailing on this appeal before the Full Commission, claimant’s attorney is hereby awarded an additional attorney’s fee in the amount of $500.00 in accordance with Ark. Code Ann. Sec. 11-9-715(b) (Repl. 2002).
IT IS SO ORDERED.
A. WATSON BELL, Chairman
PHILIP A. HOOD, Commissioner
Commissioner McKinney dissents.
DISSENTING OPINION
Page 13
I must respectfully dissent from the majority’s finding that the claimant’s injury was the major cause of her permanent anatomical impairment. In my opinion, the claimant has failed to meet her burden of proof.
Injured workers bear the burden of proving by a preponderance of the evidence that they are entitled to an award for a permanent physical impairment. Moreover, it is the duty of this Commission to determine whether any permanent anatomical impairment resulted from the injury, and, if it is determined that such an impairment did occur, the Commission has a duty to determine the precise degree of anatomical loss of use. Johnson v. General Dynamics, 46 Ark. App. 188, 878 S.W.2d 411 (1994); Crow v. WeyerhaeuserCo., 46 Ark. App. 295, 880 S.W.2d 320 (1994). Physical impairments occur when an anatomical or physiological abnormality permanently limits the ability of the worker to effectively use part of the body or the body as a whole. Consequently, an injured worker must prove that the work-related injury resulted in a physical abnormality which limits the ability of the worker to effectively use part of the body or the body as a whole. Therefore, in considering such claims, the Commission must first determine whether the evidence shows the presence of an
Page 14
abnormality which could reasonably be expected to produce the permanent physical impairment alleged by the injured worker.Crow, supra.
Ark. Code Ann. § 11-9-704(c)(1) (Repl. 2002) provides that “[a]ny determination of the existence or extent of physical impairment shall be supported by objective and measurable physical or mental findings.” Objective findings are those findings which cannot come under the voluntary control of the patient. Ark. Code Ann. § 11-9-102(16)(A)(i) (Supp. 2005). The Commission cannot consider complaints of pain when determining physical or anatomical impairment. Ark. Code Ann. § 11-9-102(16)(A)(ii)(a). Furthermore, for the purpose of making physical or anatomical impairment ratings to the spine, straight-leg raising tests or range-of-motion tests shall not be considered objective findings. Ark. Code Ann. § 11-9-102(16)(A)(ii)(b). With regard to the medical findings other than those which are specifically precluded from being considered objective, a medical finding may be considered objective only if it is the result of a diagnostic procedure which does not come under the voluntary control of the patient. Department ofParks Tourism v. Helms, 60 Ark. App. 110, 959 S.W.2d 749 (1998).
Page 15
In my opinion, the evidence demonstrates that the major cause of the claimant’s permanent anatomical impairment was not her work injury. Dr. Arnold’s deposition and the medical records show that he diagnosed the claimant’s left and right shoulders with the same difficulties and performed the same surgical procedures bilaterally.
In Dr. Arnold’s deposition, the respondent’s attorney asked Dr. Arnold about the claimant’s left shoulder difficulties and their relation to her work-related injury:
Q. And the reason that you believe there is a connection between the inflammation in the joint that you treated surgically as it relates to the left shoulder and the work-related injury was the lack of any symptoms in that shoulder prior to the injury?
A. Correct. And the inciting event. An injury — no symptoms, an event, and the onset of symptomatology.
Q. You eventually — I’m going to go ahead and deal with the left shoulder now. Okay?
A. Okay.
Q. You eventually placed her at MMI with the left shoulder and eventually you gave her a 10-percent rating to the upper extremity, which is equivalent to a 6-percent rating to the body as a whole for the left shoulder?
A. Right.
Q. What is your opinion with regard to whether the major cause for that impairment rating was the work-related inciting event or the underlying pre-existing condition?
Page 16
A. Well, I thought the majority of it was the inciting event.
Q. And again, was that because of the lack of symptoms with the left shoulder prior to the inciting event?
A. Yeah. I mean, she may have had some symptoms related to the event that she didn’t tell me about, but this is an injury that goes along with repetitive — with an injury like this.
Q. You might not have been concerned or it might not change your opinion if there had been some minor symptoms, remote treatment, or something like that?
A. Probably not, yeah.
Dr. Arnold also had an exchange with respondents’ counsel about the claimant’s right shoulder impairment and its relation to her work related injury:
Q. As it relates to the right shoulder were your findings with regard to the right shoulder any different than your findings with regard to the left shoulder?
A. Almost identical if I remember correctly.
Q. The same problem?
A. Yeah.
Q. Did you understand her symptomatology chronology to the be same; in other words, that she had no symptoms with either shoulder until the precipitating work-related event?
A Correct. That’s the way I understood it.
Q. Okay. Doctor, I’m going to ask you to assume that the medical record that the Judge is going to be presented in this case reflects that she had had right shoulder pain sufficient to report to aPage 17
physician beginning at least September 7, `05. Then September 22, `06, she was seen by Dr. Rebecca Lewis for right shoulder pain. She was given a Medrol Dosepak to help with her shoulder pain. On October 20th, she went back to Dr. Lewis again with persistent right shoulder pain, where she was given additional prescriptions for that. On October 25, `06, she was again seen for right shoulder pain. She had some shoulder x-rays ordered by Dr. Lewis done December 1, 2006. Followed up on December 4, 2006, with a diagnosis of degenerative arthritis of the right acromioclavicular joint. And then when she presented to the hospital after this inciting event, there is a specific notation, “right shoulder has arthritis and was hurting before today.” With that history of shoulder problems significant to receive that type of medical treatment within a matter of weeks prior to this inciting event, would your opinion with regard to the right shoulder be different than with regard to the left shoulder?
A. I never saw those records.
Q. I’m not saying you did.
A. Right. Did you ever forward those to me or did I ever receive those or anything?
Q. No. I got them after taking her deposition.
A. Okay. Well, she never — she never informed me of any shoulder pain, so I was never aware of any of these, you know. Like I told you, she told me that she had gone after this injury — she had gone to the emergency room and actually had a — at one point had had an injection by Dr. Lewis into the shoulder after this particular injury, but she had never informed me of the pre-existing injury to the right shoulder, so I’d have to review those.
Page 18
Q. I’ll be happy to give them to you. I’m going to mark a copy of them for the record.
A. Okay.
Q. But if your prior opinion with regard to the left shoulder was based upon the absence of symptoms prior to the precipitating event, is this level of symptoms with regard to the right shoulder more an indication of a symptomatic pre-existing arthritic condition that was ongoing and producing symptoms prior to and at the time of the work-related injury?
A. Can I review these just for a second?
Q. Sure. Take all the time you need.
A. (Witness reviews documents.) September of `05 there was no note of right shoulder pain.
Q. Down at the bottom lower left.
A. Does she comment anything on here?
Q. No, not in the narrative report, only the handwritten notes.
A. Okay. So we don’t know about that. This is September 22, `06, right shoulder pain. No exam on there. Medrol Dosepak. Right shoulder pain October of `06. Radiology report on December of `06. Then February of `07 Dr. Lewis said, “follow-up of left shoulder and right shoulder sustained through a work-related injury.” So would you repeat your question again?
Q. My question is, and there’s no dispute about the payment of the medical bills and the payment of all the temporary disability. What I’m concerned about here today has to do with the permanent impairment rating.
Page 19
A. Okay.
Q. You indicated with regard to the left shoulder that you felt the major cause for the 6-percent body-as-a-whole impairment rating was the fact that by history she had no left shoulder symptoms prior to the precipitating work-related event, —
A. Right.
Q. — and, therefore, you felt the major cause of that impairment rating was the work-related precipitating event?
A. Correct.
Q. Okay. Now, I have presented you and you’ve had an opportunity to review medical records which reflect that on the right shoulder, not the left, but on the right shoulder she had what are described as persistent right shoulder complaints, within a matter of weeks prior to this was undergoing active treatment for those complaints. What is your opinion with regard to the right shoulder as it relates to the 6-percent impairment rating? Is the major cause in your opinion, if you have one, for the 6-percent body-as-a-whole impairment rating that was assigned to the right shoulder the underlying arthritic condition that was symptomatic before the work-related event or this work-related event that she told you about?
A. I think I would say that, first of all, there’s no way to know for sure, and Dr. Lewis is an excellent physician, she’s not an orthopedic surgeon, and I don’t see any exam that relates to the strength of her rotator cuff. The only thing that I see is she had shoulder pain and she had some arthritis in the AC joint, which I had told Ms. McClendon was existing before her particular injury. So I don’t know if there’s any way that you can tell how much of it was related, and like I told her before, a portion of her current conditionPage 20
was pre-existing and a portion of it was related to the work injury. How much, I can’t tell you.
Q. So you are unwilling to way that 51 percent of the cause of her 6-percent body-as-a-whole impairment rating for the right shoulder —
A. Right.
Q. — is due to this precipitating work-related event as opposed to the underlying arthritic condition?
A. I would say it probably is 51 percent or greater, and the reason is is because she had never sought the treatment by a specialist. She had never been engaged in therapy program. She had never received any injections. She had been seeing her doctor for this prior to that injury and she had had a subacromial injection by her primary care physician, which she had never had in the year prior to that. And she had seen me and I had given her an injection into the AC joint, none of which she had had before. I think there was some component of it that was pre-existing, but in my opinion, I would say the majority of it, 51 percent of more, was related to this work injury because after the injury that’s when she sought the treatment of injections and therapy and eventually a surgery, and that’s all we have to go by.
The medical records reflect that the claimant had right shoulder difficulties prior to her admittedly compensable injury. These difficulties are very similar to the types of problems the claimant had after her work-related injury. Dr. Arnold’s explanation of why he believes the left shoulder impairment was the major cause of the work-related injury due to the claimant having no symptoms or problems prior to the
Page 21
February 7, 2007, is directly contrary to the explanation he gave for the major cause of the claimant’s right shoulder impairment. In my opinion, his opinion is entitled to little weight.
Dr. Arnold claims the lack of difficulties in the left shoulder prior to the injury date of February 7, 2007, gives him a basis to show major cause of the left shoulder impairment was the work-related accident. However, when presented with he same diagnosis on the right shoulder and the same corrective surgical procedures, he finds major cause of right shoulder impairment to be the work-related injury. Even when confronted with pre-existing difficulties on the right shoulder and medical treatment prior to the work-related injury.
The medical records indicate that on October 20, 2006, the claimant was seen by Dr. Rebecca Lewis, complaining of “persistent right shoulder pain.” A radiology report form Siloam Springs Memorial Hospital on December 1, 2006, regarding the claimant’s right shoulder gave the following impression:
“Degenerative changes in the acromioclavicular joint. Otherwise normal views of the right shoulder.”
On December 4, 2006, the claimant again saw Dr. Lewis and was diagnosed with degenerative arthritis of the right acromioclavicular joint. It is clear that the claimant had pre-existing degenerative arthritis in the right acromioclavicular joint.
I agree with Dr. Arnold’s logic in determining major cause for the claimant’s left shoulder. However, when presented with the fact that the claimant had prior difficulties with her right shoulder before the injury,
Page 22
Dr. Arnold abandons his left shoulder analysis of major cause due to lack of prior difficulties after learning the claimant did have the right shoulder difficulties before the work-related injury. It is of note that Dr. Arnold was unaware of these prior difficulties until the day of the deposition, although the claimant’s right shoulder difficulties are found in medical reports just two months and three days prior to the work-related injury. Accordingly, I give no weight to the opinion of Dr. Arnold.
The Commission has a duty to translate the evidence on all the issues before it into findings of fact. Weldon v. Pierce Bros.Const. Co., 54 Ark. App. 344, 925 S.W.2d 179 (1996). Moreover, the Commission has the authority to resolve conflicting evidence and this extends to medical testimony. Foxx v. American Transp., 54 Ark. App. 115, 924 S.W.2d 814 (1996). The Commission has the duty of weighing the medical evidence as it does any other evidence, and the resolution of any conflicting medical evidence is a question of fact for the Commission to resolve. Emerson Electric v.Gaston, 75 Ark. App. 232, 58 S.W.3d 848 (2001); CDIContractors McHale, 41 Ark. App. 57, 848 S.W.2d 941 (1993);McClain v. Texaco, Inc., 29 Ark. App. 218, 780 S.W.2d 34 (1989).
Although the Commission is not bound by medical testimony, it may not arbitrarily disregard any witness’s testimony. Reeder v.Rheem Mfg. Co., 38 Ark. App. 248, 832 S.W.2d 505 (1992). However, it is well
Page 23
established that the determination of the credibility and weight to be given a witness’s testimony is within the sole province of the Workers’ Compensation Commission. Wal-Mart Stores, Inc. v.Sands, 80 Ark. App. 51, 91 S.W.3d 93 (2002). The Commission is not required to believe the testimony of the claimant or any other witness, but may accept and translate into findings of fact only those portions of the testimony it deems worthy of belief.McClain, supra.
The Commission is never limited to medical evidence in arriving at its decision. Moreover, it is well within the Commission’s province to weigh all the medical evidence and determine what is most credible. Smith-Blair, Inc. v. Jones, 77 Ark. App. 273, 72 S.W.3d 560 (2002). The Commission is entitled to review the basis for a doctor’s opinion in deciding the weight and credibility of the opinion and medical evidence. Id. In addition, the Commission has the authority to accept or reject a medical opinion and determine its medical soundness and probative force. Green BayPackaging v. Bartlett, 67 Ark. App. 332, 999 S.W.2d 695 (1999). The Commission’s resolution of the medical evidence has the force and effect of a jury verdict. McClain, supra.
In my opinion, the major cause of the claimant’s permanent impairment to the right shoulder was her pre-existing degenerative arthritis of the right acromioclavicular joint, not the work-related injury or its treatment. Accordingly, the claimant is not entitled to
Page 24
permanent impairment. Therefore, for all the reasons set forth herein, I respectfully dissent from the majority’s opinion.
KAREN H. MCKINNEY, Commissioner
Page 1