CLAIM NO. F606191
Before the Arkansas Workers’ Compensation Commission
ORDER FILED NOVEMBER 27, 2007
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE PHILLIP WELLS, Attorney at Law, Jonesboro, Arkansas.
Respondent represented by the HONORABLE MICHAEL DENNIS, Attorney at Law, Pine Bluff, Arkansas.
Decision of Administrative Law Judge: Affirmed.
OPINION AND ORDER
The respondents appeal an administrative law judge’s opinion filed June 20, 2007. The administrative law judge found that the claimant had sustained a 12% permanent physical impairment and 20% wage-loss disability. After reviewing the entire record de novo, the Full Commission affirms the opinion of the administrative law judge.
I. HISTORY
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Gary Dale Gilley, age 59, testified that he finished 12th grade and had a high school diploma. Mr. Gilley testified that he served in the U.S. Army for two years, driving a truck. The claimant’s work experience, since November 1967, involved truck driving. The claimant testified, “I’ve pulled flat beds, low boys, tankers, freight boxes, dry boxes, just all general freight. I’ve hauled steel, gasoline, machinery, just about everything.”
The claimant testified that he began working for Averitt Express in about January 2005. The parties stipulated that the claimant sustained a compensable injury to his left shoulder on June 1, 2005. The claimant testified that he slipped on the side of a truck.
Dr. Henry F. Stroope saw the claimant in August 2005 and assessed “Impingement syndrome of the left shoulder with possible rotator cuff tear. Review of the patient’s MRI shows a small area in the anterior leading aspect of the supraspinatus tendon which is either high grade tendonopathy vs a small rotator cuff tear — full thickness.”
Dr. Stroope performed a Primary Left Shoulder Arthroscopic Rotator Cuff Repair with Subacromial Decompression on February 9, 2006. The pre-and post-operative diagnosis was “Acute complete tear of the rotator cuff.”
On July 26, 2006, Dr. Stroope indicated that the claimant could return to regular work duties. The claimant testified, however, that he did not return to work for the respondent-employer.
Dr. Stroope informed the claimant’s attorney on August 22, 2006, “I am writing regarding Mr. Gary Gilley. According to the 4th Edition of the American Medical Association’s
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Guides to the Evaluation of Permanent Impairment, Mr. Gilley qualifies for an impairment rating of 10% to his upper extremity which is equivalent to 6% of the whole person.”
The parties stipulated that the claimant “sustained a permanent physical impairment in the amount of 6% to the body as a whole, for which he has received appropriate corresponding indemnity benefits.” The claimant began working for Barker Construction, driving a dump truck, following Dr. Stroope’s release. The claimant’s testimony indicated that work with Barker Construction was not as physically demanding as work with the respondent-employer.
A pre-hearing order was filed on February 20, 2007. The claimant contended, among other things, that “Dr. Stroope assessed him with a 6% permanent impairment rating to the body as a whole as a result of his shoulder injury and surgery. Claimant contends that he cannot perform the same work activity making the same wages as prior to his injury and surgery. Claimant further contends that as a result of his injury, surgery and inability to make the same wages, he should be entitled to wage loss disability benefits.” The respondents contended that the claimant had not suffered a wage loss as a result of his compensable injury.
According to the pre-hearing order, the parties agreed to litigate the issues of “wage loss/permanent partial disability and controverted attorney fees.”
Dr. David N. Collins provided an independent medical examination on March 21, 2007:
Mr. Gilley sustained injury to his left shoulder on 6/28/05, as a result of a fall from the truck that he was driving. He was in the process of getting out of his tractor trailer and slipped during descent while maintaining his position with his left arm. He had acute pain that has persisted. . . .
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He saw Henry Stroope, MD, on 8/23/05. Dr. Stroope diagnosed impingement with possible rotator cuff tear. . . . On 2/9/06, he underwent arthroscopic rotator cuff repair with subacromial decompression on the left. . . . He was seen o (sic) 8/8/06, by Dr. Stroope and released at that time. Of note is that he was doing reasonably well with most of his pain being gone, motion limited. He was advised regarding stretching and was felt to have reached maximum medical improvement. He was given follow up as needed. The patient reports that his impairment was 10% to the upper extremity, equal to 6% to the body as a whole.
He is working now but is working with a different company. . . . He has difficulties when he uses the arm away from the body for lifting and reaching his belt line posteriorly. No problems on the contralateral side. . . .
IMPRESSION:
1. Occupation related injury, left shoulder.
2. Status post arthroscopic repair of full thickness rotator cuff tear.
3. Decreased range of motion, left shoulder.
4. Clinical and imaging evidence signifying integrity of the rotator cuff repair.
Mr. Gilley was advised regarding the findings of today’s visit and the conclusions.
It would appear that he is well suited for his present occupation. I believe that he has reached maximum medical improvement. He has sustained permanent partial impairment as it relates to his work related injury and its treatment on the basis of anatomic alteration of the skin, subcutaneous tissue, deltoid muscle, acromion process, coracoacromial ligament, subacromial bursa and the rotator cuff. Impairment is equal to 20% to the upper extremity, equal to 12% to the body as a whole.
I believe there have been alterations of the coracoacromial archway that render his shoulder more weak in forward elevation than one might expect. I believe there is limited capacity to recover active forward elevation even with superb restoration of muscular strength.
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A hearing was held on May 4, 2007. At that time, the claimant contended that he was entitled to a 12% impairment rating as assessed by Dr. Collins.
The claimant at hearing described his physical condition: “I can’t pick up near what I could before. I can’t — I can’t reach out and pick up anything to speak of. I can’t lift. I can’t reach above me. . . . I can’t do near what I could with my left shoulder. . . . It’s hard for me to even put my shirttail in. My wife has to help me put my belt in the back loops — I can’t reach around there.”
The administrative law judge found, in pertinent part:
6. The claimant’s healing period ended on or about August 8, 2006, with a residual permanent physical impairment in the amount of 12% to the body as a whole, as a result of the June 1, 2005, compensable left shoulder injury.
7. In addition to his 12% anatomical impairment, when the claimant’s age, education, permanent limitations and restrictions are considered, the evidence preponderated that he has sustained a loss of earing (sic) capacity in the amount of 20% over and above his physical impairment.
The respondents appeal to the Full Commission.
II. ADJUDICATION
A. Anatomical Impairment
Any determination of the existence or extent of physical impairment shall be supported by objective and measurable physical or mental findings. Ark. Code Ann. § 11-9-704(c)(1)(B). The Commission has adopted the Guides to the Evaluation of Permanent Impairment (4th ed. 1993) to be used in the assessment of anatomical impairment. Commission Rule 099.24; Ark. Code Ann. § 11-9-522(g). Permanent benefits are only awarded upon a determination that the
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compensable injury was the major cause of the impairment. Ark. Code Ann. § 11-9-102(4)(F)(ii)(a). The administrative law judge found in the present matter that the claimant had sustained a 12% permanent physical impairment. The Full Commission affirms this finding. We recognize that Dr. Stroope, the treating surgeon, had previously assigned a 6% rating. The respondents accepted and paid out this rating. Dr. Collins subsequently evaluated the claimant and increased the impairment rating to 12%. The rating assigned by Dr. Collins was based on “anatomic alteration of the skin, subcutaneous tissue, deltoid muscle, acromion process, coracoacromial ligament, subacromial bursa and the rotator cuff.” The record indicates that these findings were objective and not within the claimant’s voluntary control. The Guides at Table 3, page 3/20 support Dr. Collins’ assessment of a 12% whole-body impairment rating. The Full Commission finds that the compensable injury was the major cause of the 12% rating assessed by Dr. Collins. The decision of the administrative law judge is affirmed.
B. Wage Loss
Ark. Code Ann. § 11-9-522 provides:
(b)(1) In considering claims for permanent partial disability benefits in excess of the employee’s percentage of permanent physical impairment, the Workers’ Compensation 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 or her future earning capacity.
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The administrative law judge found in the present matter that the claimant had sustained wage-loss disability in the amount of 20%. The Full Commission affirms this finding. The claimant is age 59 and is only a high school graduate. The majority of the claimant’s career has been spent driving long-haul trucks. The parties stipulated that the claimant injured his left shoulder on June 1, 2005. The claimant subsequently underwent surgery and received ratings from two separate physicians. Although the claimant was released to return to work, he now has significant permanent restrictions involving his left upper extremity. The evidence does not show that the claimant can drive for long periods using just one hand. Nor does the record support the respondents’ contention that the claimant is entitled to zero wage loss. We recognize that the claimant after his release was able to retain a local job driving a dump truck. Nevertheless, the claimant has significant permanent restrictions following his compensable injury and surgery and the claimant is not disqualified from receiving wage-loss disability. Because of his compensable injury and surgery, and due to the accompanying permanent physical restrictions, the claimant will not be able to return to full-time work with the respondent-employer. The Full Commission finds that the compensable injury was the major cause of the claimant’s wage-loss disability. The decision of the administrative law judge is affirmed. Based on our de novo review of the entire record, the Full Commission affirms the administrative law judge’s award of 12% anatomical impairment and 20% wage-loss disability. The claimant’s attorney is entitled to fees for legal services pursuant to Ark. Code Ann. § 11-9-715(Repl. 2002). For prevailing on appeal to the Full Commission, the claimant’s attorney is
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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
________________________________ PHILIP A. HOOD, Commissioner
Commissioner McKinney dissents.
DISSENTING OPINION
I must respectfully dissent from the majority opinion finding that the claimant sustained a 12% permanent physical impairment as well as a 20% wage loss disability. Based upon my de novo review of the entire record, without giving the benefit of the doubt to either party, I find that the claimant has failed to meet his burden of proof. With regard to the claimant’s physical impairment, Dr. Collins noted:
He has sustained permanent partial impairment as it relates to his work related injury and its treatment on the basis of anatomic alteration of the skin, subcutaneous tissue, deltoid muscle, acromion process, coracoacromial ligament, subacromial bursa and the rotator cuff. Impairment is equal to 20% to the upper extremity, equal to 12% to the body as a whole.
Dr. Collins did not advise whether he relied upon the A.M.A. Guides tothe Evaluation of Permanent Impairment, 4th edition in determining this rating.
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With regard to the claimant’s physical impairment, the issue on appeal is not whether the claimant sustained a physical impairment rating as the respondents accepted and paid the 6% anatomical impairment as assigned by the claimant’s operating physician. Rather, the issue is whether the claimant has proven entitlement to a 12% anatomical impairment rating. I find that the claimant has not proven entitlement to the 12% rating as assigned by Dr. Collins. Dr. Stroope’s impairment rating which was accepted and paid by the respondents is not based upon objective medical findings, but rather solely upon subjective active range of motion measurements. The A.M.A. Guides to the Evaluation of PermanentImpairment, 4th edition, specifically provides:
In evaluation of restriction of motion of the hand and upper extremity, the full range possible of active
motion should be carried out by the subject and measured by the examiner. Several repetitions may be performed to obtain reliable results. The examiner may check the range of passive motion by applying moderate pressure to the joint. However, in the Guides, the range of active motion takes precedence. . . . (emphasis in original)
In analyzing the medical opinions on anatomical impairment offered in the present claim, only Dr. Stroope specifically explained that he arrived at a 6% impairment to the body as a whole utilizing the A.M.A.Guides to the Evaluation of Permanent Impairment, 4th edition. Dr. Stroope’s range of motion measurements as calculated on August 8, 2006, plug into the appropriate Tables under the Shoulder Section of the Guides as follows:
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These add up to a 10% impairment to the left upper extremity which converts to a 6% impairment to the body as a whole pursuant to Table 3. Although the claimant has objective findings of injury, specifically surgery, the 6% rating was not based upon this objective finding, but rather solely upon the claimant’s active range of motion measurement. Thus, while the respondents accepted and paid this impairment rating, it does not comply with Ark. Code Ann. § 11-9-704(c)(1) as it is only supported by subjective medical findings.
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
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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 of Parks Tourism v. Helms, 60 Ark. App. 110, 959 S.W.2d 749
(1998).
Dr. Collins issued the claimant a 20% impairment to the upper extremity which is equal to a 12% impairment to the body as a whole. However, when Dr. Collins’s range of motion measurements are plugged into the appropriate Tables under the Shoulder Section of the Guides, the numbers do not add up to the 20% as found by Dr. Collins.
Not only does Dr. Collins fail to provide a measurement for shoulder extension rotation, but he also provided a measurement for Internal rotation that is impossible to plug into the tables in the Guides as it was not measured in degrees. When the range of motion measurements as provided by Dr. Collins are calculated pursuant to the Guides, these measurements only support a rating of 11% to the upper extremity which computes to a 7% impairment to the body as a whole under Table 3. Even if we were to give the claimant the benefit of the doubt and assume that Internal Rotation to L-5 allowed for the
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greatest impairment under Figure 44, it would only add an additional 5% to the 11% calculated above. Likewise, even giving the claimant the greatest impairment, a 3%, for the missing measurement of Extention Rotation, the total would only add up to 19% not the 20% assigned by Dr. Collins. However, Dr. Collins did not state that he relied upon these range of motion calculations to determine the claimant’s permanent anatomical impairment. A precise reading of Dr. Collins’s impairment rating indicates that he relied upon “anatomic alteration of the skin, subcutaneous tissue, deltoid muscle, acromion process, coracoacromial ligament, subacromial bursa and the rotator cuff.” The Guides do not establish or account for a 20% impairment to the upper extremity for these anatomic alterations whether one looks to the Upper Extremity section or the Skin section. Accordingly, I specifically disagree with the majority that Dr. Collins based his impairment assessment upon the 4th edition of the A.M.A. Guides to the Evaluation of PermanentImpairment. Therefore, I find that claimant has failed to prove by a preponderance of the evidence that the impairment rating assessed by Dr. Collins complies with Rule 099.34 which provides that the A.M.A. Guidesto the Evaluation of Permanent Impairment, 4th edition is to be used in the assessment of anatomical impairment. When one looks to the A.M.A. Guides there is simply no support for a 12% impairment rating.
With regard to wage loss, I find that the claimant has failed to prove any entitlement to wage loss as he has failed to prove by a preponderance of the evidence that he sustained a
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physical impairment rating that complies with the law. As noted above, the respondents accepted the 6% impairment to the body as a whole as assessed by Dr. Stroope even though this rating does not comply with the requirement that it be based upon objective medical findings. Since the claimant did not prove he was entitled to permanent physical impairment, the claimant did not prove he was entitled to wage-loss disability.Wal-Mart Stores, Inc. v. Connell, 340 Ark. 475, 10 S.W.3d 727 (2000).
Nevertheless, since the respondents accepted the 6% to the body as a whole even though it does not comply with the requirement of objective medical findings, I find that the claimant has failed to prove that he sustained any degree of wage loss. The claimant currently works driving a dump truck which has a manual transmission that he has to shift. Despite the claimant’s testimony that he cannot use his left arm very much, the claimant admitted that when he shifts gears on the dump truck, he would have to drive with his left arm. Driving a dump truck pays less than the claimant earned as an over-the-road driver, yet the job duties and responsibilities as very similar. In fact, the duties would even be less strenuous on his left shoulder with an
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automatic transmission and power steering available with an over-the-road rig. Claimant’s primary objection to over-the-road driving is the long hours required to sit in the truck. However, the claimant is required to sit in the dump truck, the only difference is the hauls are shorter and broken up during the day. Nevertheless, the sitting is the same. One must sit to drive. Claimant has not been restricted from sitting and he has failed to establish just how an injury to his left shoulder would prevent him from sitting and driving for long distances. At best, the claimant is restricted from lifting and loading or unloading any loads he hauls. His pre-injury job did not require much in the way of lifting, loading or unloading as most of his loads were loaded or unloaded by the recipient of the load. In addition, the evidence revealed that lumpers were available to unload the trucks and that the claimant would be reimbursed for any expenses he had to pay the lumpers. Furthermore, the evidence revealed that the respondents had work available for the claimant within his restrictions with “less than” load drivers that haul shorter distances and with no loading or unloading. The claimant never even tried to return to work with respondents, but rather went straight to work for a friend.
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After I consider the claimant’s age, education, work experience, physical injury, restrictions, and all other matters including but not limited to the claimant’s motivation and negative attitude in returning to work as an over-the-road driver, I find that the claimant has failed to prove by preponderance of the evidence that he sustained any wage loss disability. The claimant is capable of returning to work and earning the same or greater wages than he was earning at the time of his injury. Therefore, for all the reasons set forth herein, I must respectfully dissent from the majority opinion.
___________________________________ KAREN H. McKINNEY, Commissioner
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