CLAIM NO. E914773
Before the Arkansas Workers’ Compensation Commission
ORDER FILED MAY 11, 2001
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE JAY TOLLEY, Attorney at Law, Fayetteville, Arkansas.
Respondents No. 1 represented by the HONORABLE CONSTANCE CLARK, Attorney at Law, Fayetteville, Arkansas.
Respondent No. 2 represented by the HONORABLE DIANE GRAHAM, Attorney at Law, Fort Smith, Arkansas.
Decision of administrative law judge: Vacated and remanded.
ORDER
The claimant appeals the decision of the administrative law judge filed October 26, 2000.
The administrative law judge determined that the claimant failed to prove the occurrence of a compensable injury. In reaching its decision, the administrative law judge determined that the claimant failed to offer objective findings as required by statute. The claimant appealed the decision. Since the claimant offered objective findings, we remand this case to the administrative law judge for additional findings.
The claimant contends that she sustained a compensable shoulder injury. As an alternative theory of recovery, the claimant suggests the occurrence of a specific injury. Based on the conclusion that there were no objective findings, the administrative law judge failed to consider the remaining elements of compensability.
The claimant’s employment at the employer’s premises commenced in 1997, when she was hired through a temporary agency. She was assigned the task of packing power washer accessories. In May of 1998, the claimant was hired by respondents. However, her duties did not change. The claimant’s hearing testimony included a description of the steps involved in the performance of her job.
The claimant testified that she developed bilateral hand pain after a few months of packing washer accessories. Next, she experienced wrist pain. The claimant stated that she did not develop shoulder pain until January of 1999. A chart note dated October 16, 1998, supports the claimant’s testimony. In this regard, it is noted that a clinical examination reflected “[r]ange of motion all joints without crepitus, pain or limitation. . . .”
On February 4, 1999, the claimant consulted Dr. Burton Bledsoe. The claimant reported, inter alia, bilateral shoulder pain. On February 27, 1999, she returned to Dr. Bledsoe. He documented claimant’s complaints of shoulder and elbow pain. On clinical examination, he detected “mild weakly positive impingement signs bilateral shoulders. . . .” Again, an impingement on the right was noted the next month.
Dr. Tom Maddock evaluated the claimant on November 10, 1999. He diagnosed a frozen shoulder. Upon clinical examination, Dr. Maddock detected “mild crepitus.” Also, he documented decreased range of motion.
On March 28, 2000, the claimant was examined by Dr. Tom Patrick Coker. He noted a history of shoulder pain commencing in March of 1999. His clinical examination included active and passive range of motion testing. He documented a “10% loss of internal rotation and about a 15% loss of external rotation actively and passively.” Although he indicated there was no crepitance, he documented grinding. Dr. Coker diagnosed “adhesive capsilitis” (frozen shoulder).
In summary, there are findings of crepitus, grinding and limited range of motion in passive testing, recognized by the Court of Appeals and the Commission as objective. It was, therefore, error for the administrative law judge to conclude that the claimant failed to offer objective findings. We remand this case to the administrative law judge for additional findings.
All accrued benefits shall be paid in a lump sum without discount and with interest thereon at the lawful rate from the date of the administrative law judge’s decision in accordance with Ark. Code Ann. §11-9-809 (Repl. 1996).
The claimant’s attorney is hereby awarded an attorney’s fee in the amount of $100.00 in accordance with Ark. Code Ann. § 11-9-715(b)(1) (Repl. 1999). See, Belcher v. Holiday Inn, 50 Ark. App. 148, 900 S.W.2d 215 (1995); Crow v. Weyerhauser Co., 41 Ark. App. 225, S.W.2d 334 (1993); Harte v. City of Rogers, Full Workers’ Compensation Commission, Op. Filed November 29, 2000 (W.C.C. No. E906998).
IT IS SO ORDERED.
________________________________ ELDON F. COFFMAN, Chairman
________________________________ MIKE WILSON, Commissioner
Commissioner Turner concurs in part and dissents in part.
CONCURRING AND DISSENTING OPINION
SHELBY W. TURNER, Commissioner.
I concur in part and respectfully dissent in part from the majority opinion in this case. I concur in the finding that it was error for the administrative law judge to conclude no objective findings were offered by claimant. Moreover, I agree that this cause should be remanded for further findings. However, I cannot agree that claimant’s attorney is entitled to a fee of only $100.00.
Although the majority offers no explanation for limiting the attorney’s fee to $100.00, it appears to be based on the failure of claimant’s counsel to file an appeal brief. The woefully inadequate fees for attorneys representing injured workers are set by statute, and subject to Commission scrutiny. See, Ark. Code Ann. § 11-9-715. To the contrary, Commission approval is not required with respect to the fees received by respondents’ attorneys. It is this incongruity which gives me pause. Thus, I cannot agree to reduce the paltry attorney’s fee permitted by statute. I would award claimant’s counsel $250.00.
Based on the foregoing, I concur in part and dissent in part.
_______________________________ SHELBY W. TURNER, Commissioner