CLAIM NO. F106480
Before the Arkansas Workers’ Compensation Commission
OPINION FILED APRIL 22, 2003
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant appeared PRO SE at the hearing. On appeal, claimant represented by HONORABLE KRISTOFER RICHARDSON, Attorney at Law, Jonesboro, Arkansas.
Respondents represented by HONORABLE KEVIN M. O’DWYER, Attorney at Law, Little Rock, Arkansas.
Decision of the Administrative Law Judge: Affirmed.
OPINION AND ORDER
The respondents appeal an Administrative Law Judge’s opinion filed May 30, 2002. The Administrative Law Judge found that the claimant proved she was entitled to wage-loss disability in the amount of 40%. The Administrative Law Judge found that the claimant proved she was entitled to additional medical treatment. After reviewing the entire record de novo, the Full Commission affirms the opinion of the Administrative Law Judge.
I. HISTORY
Bettie Golden, age 54, testified pro se that she was a high school graduate. Ms. Golden testified that she worked on a factory assembly line for a few years and worked as a home health aide. The claimant said she twice graduated from truck driving school, and that she had completed about one year of college. The claimant began driving a truck in about 1991.
The parties stipulated that the claimant sustained a compensable injury to her right shoulder. The claimant testified that she began having gradual problems with her right shoulder in approximately July 2000, and that these problems were caused by her truck-driving duties. The claimant first sought medical treatment on July 24, 2000, at which time she reported “Pain in right arm x 2-3 months.” The claimant was diagnosed with “Right shoulder sprain” in August 2000.
The claimant began treating with Dr. Thomas E. Sturdavant in September 2000. Dr. Sturdavant diagnosed “myofascial pain syndrome,” and his treatment included injection therapy. The claimant also underwent extensive physical therapy.
Dr. Sturdavant planned the following on January 26, 2001:
At this time, the patient was released to light duty as per the recommendations from the functional capacity evaluation 10 pound weight restriction, no repetitive motion, no overhead activities. The patient states she continues to have a lot of pain in her right neck and shoulder, which has essentially spread to the left side of her neck and shoulder as well as down into her bilateral lower extremities. At this time, I am suggesting that if she has not already had an MRI and according to some of the old records there is reference that she had one but there’s no official document to review. If one has not been done, we will repeat MRI and consider an EMG in the future. Once these two tests have been done, she will most likely be released at maximum medical improvement and she will be given an impairment rating. She is advised to continue with her physical therapy as well as her home exercise program.
An MRI of the right shoulder was taken on February 14, 2001, with the following impression:
1. Areas of tendonopathy in the supraspinatus tendon of the rotator cuff along with a full-thickness tear involving a portion of the supraspinatus tendon.
2. Small joint effusion with fluid extending into the subacromial/subdeltoid bursa.
3. Anterior acromial spur.
On February 27, 2001, Dr. Sturdavant planned to refer the claimant to Dr. Morrison for evaluation of the claimant’s rotator cuff tear. Dr. Sturdavant advised the claimant “that I still continue to believe that part of her pain complex is muscular in origin.”
Dr. William A. Morrison examined the claimant and assessed the following on March 1, 2001:
1. Tear involving the rotator cuff of the right shoulder.
2. Pain involving the right arm.
3. Apparent work-related injury.
PLAN: I tried to review with her the anatomy involved and reviewed with her the alternative treatment of acromioplasty the advantages, disadvantages and risks involved with this. I find it difficult to relate it to a work-related injury, as she doesn’t know how she did this. Apparently she works as a truck driver.
At this point in time she is really does not have enough symptoms that would warrant an operative intervention. She is having more pain elsewhere, and I informed her that she would not have relief of pain involving her neck, would not have pain relieved elsewhere other than the shoulder area. She states she is really not having too much shoulder pain, and therefore does not wish to proceed with a surgical approach, and she really, therefore, is not a surgical candidate. All questions concerning the management of this were invited and answered in detail.
On a Certificate Of Incapacity dated April 24, 2001, Dr. Sturdavant pronounced maximum medical improvement. Dr. Sturdavant returned the claimant to work at light duty, with permanent restrictions of limited overhead activity, no lifting over 10 pounds, and no repetitive use of the right upper extremity. The parties stipulated that the claimant’s healing period ended on April 26, 2001. The record indicates that the respondents accepted a 10% impairment rating at that time.
The claimant testified that the respondent-carrier would not allow her to return to Dr. Sturdavant.
Ms. Golden claimed entitlement to additional worker’s compensation. The claimant contended that she was permanently totally disabled; in the alternative, that she had sustained substantial impairment and/or disability exceeding the 10% rating. The claimant contended that she was entitled to additional medical treatment from Dr. Sturdavant.
The respondents contended that the claimant sustained no permanent disability as the result of her compensable injury. The respondents contended that the claimant was not entitled to additional medical treatment.
A hearing before the Commission was held on March 1, 2002. The claimant essentially contended that she was entitled to additional medical treatment. The claimant testified that she had almost no functional use of her right arm. The claimant testified on cross-examination that she could not drive a truck.
The Administrative Law Judge filed an Interim Opinion and Order on March 18, 2002:
[A]lthough the parties stipulated that the claimant sustained a gradual onset right shoulder injury, which was accepted as compensable, and for with (sic) respondent has paid various medical and indemnity benefits, including a ten percent (10%) whole body impairment for an alleged tear involving the rotator cuff of the right shoulder, the record as a whole does not totally support a shoulder injury.
* * *
At the conclusion of the March 1, 2002, hearing, this Administrative Law Judge inquired concerning the respective positions of the parties to an independent medical examination and evaluation. The claimant requested such an examination and evaluation. Respondent’s attorney requested leave to confer with his client, The Arkansas Property and Casualty Guaranty Fund. By letter dated March 12, 2002, respondent agreed to an independent medical evaluation.
Accordingly, Dr. Kenneth Rosenzweig . . . has been selected to perform an independent examination and evaluation of Bettie Golden. The cost of said examination is to be paid by the respondent, Arkansas Property and Casualty Guaranty Fund. . . .
Any determination with regard to the issues relevant to this case shall be held in abeyance pending receipt of the narrative report from Dr. Rosenzweig.
Dr. Rosenzweig, an orthopaedic specialist, independently examined and evaluated the claimant on April 2, 2002. Herein are excerpted relevant portions of Dr. Rosenzweig’s lengthy report:
Clinical Diagnosis
Based on historical review of the records and today’s physical exam, it is felt to be degenerative disc and joint disease of the cervical spine with impingement syndrome, secondary full thickness rotator cuff tear, along with somatoform reaction and exaggerated pain behaviors. . . .
Without having reviewed the films directly, and relying on the reports specifically, the prognosis for Ms. Golden returning back to truck driving seems somewhat guarded, based on her moderate to severe disease in her neck. Her shoulder dysfunction, whether it is truly a frozen shoulder by itself from immobilization, or due to intractable pain with somatoform reaction, it is not felt that she is going to resume truck driving, based on her current findings. However, with modification of her behavorial disorder, and with aggressive medical, and possible surgical management, return of shoulder function is an obtainable goal.
Maximum Medical Improvement
Ms. Golden is most likely at maximum medical improvement with the current level of treatment. It is understandable, based on this independent medical examination, the reluctance of the previous treating physicians to perform surgery. But, with the documented impingement and full thickness cuff pathology, satisfactory recovery may not be obtainable short of surgical repair and decompression. . . .
Using the Fourth Edition Guide to Evaluation of Permanent Impairment, as the result of rotator cuff pathology and shoulder dysrhythmia, due to these findings, regardless of her somatoform behavior, using Table 15, extrapolating from the dysfunction as if it were a suprascapular nerve injury, based on accepted and traditional impairment ratings for rotator cuff pathology, this would render her a 10% upper extremity impairment, which correlates to a 6% whole-person rating. It is with speculation the percentage of apportionment of how much this is degenerative in nature, and how much is related to her job description. However, since the type of job she had in her early 50’s, the rotator cuff tear is most likely occupation-related, and therefore, it is felt to be, by this examiner, a valid rating. Normal progression of cuff pathology does not occur until the late 60’s or 70’s.
Work Capacity
At this time, Ms. Golden can work a left-hand primary job. It would be my recommendation that she be reconsidered for surgical options in regard to management of the right shoulder, as long as the behavorial and/or somatoform activities can be appropriately handled.
Care, Management, Conclusion
It appears that conservative care has been correct and there has been no recorded treatment over the past year. But, due to the absence of management, it is not known at this time, due to her somatoform behavior during examination, what she truly can and cannot do. She does have documented cuff pathology that has most likely propagated over the past year, rendering her shoulder very difficult to use, and she has allowed herself to “freeze up”, and has remained in the sling for the duration. Aggressive return to motion, satisfactory pain management and shoulder decompression and repair with proper motivation should regain satisfactory use of this shoulder, although she may never return to overhead work. At this point, based on Dr. Sturdavant’s release, it appears to be an appropriate release at this time.
Dr. Rosenzweig also answered a number of “interrogatories,” which are included of record.
The Administrative Law Judge filed an opinion on May 30, 2002. The Administrative Law Judge found that the claimant failed to prove she sustained anatomical impairment greater than 10%. The Administrative Law Judge found, “The claimant has proven, by a preponderance of the evidence, that she has sustained wage-loss in the amount of forty percent (40%) to the body as a whole, entitling her to an overall fifty percent (50%) permanent partial disability award.” The Administrative Law Judge found that the claimant proved she was entitled to “continued reasonably necessary medical treatment.”
The respondents appeal to the Full Commission.
II. ADJUDICATION A. Wage Loss
The wage-loss factor is the extent to which a compensable injury has affected the claimant’s ability to earn a livelihood. Bradley v. Alumax, 50 Ark. App. 13, 899 S.W.2d 850 (1995). Ark. Code Ann. § 11-9-522(b) provides:
(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.
In the present matter, Ms. Golden is nearly age 55 with only a high school diploma, and her work history consists primarily of unskilled manual labor. The claimant became a truck driver in about 1991. The respondents stipulated that the claimant sustained a compensable injury to her right shoulder. The claimant has a documented rotator cuff tear, and Dr. Sturdavant opined that the claimant could not return to full work activity. The claimant, who the Commission finds was a credible witness, testified that she had almost no functional use of her right arm. The record corroborates the claimant’s testimony that she was unable to resume her truck-driving occupation, which she had performed for nearly ten years before the compensable injury.
Based on our review of the record, the preponderance of evidence does not support the dissenting opinion’s view that the claimant is entitled to no wage-loss disability exceeding her anatomical impairment. Dr. Rosenzweig, like the other examining physicians, did not think the claimant could resume her former duties of driving a truck. Based on the claimant’s age, education, and prior work experience, the Full Commission affirms the Administrative Law Judge’s opinion that the claimant proved she sustained wage-loss disability in the amount of 40%.
B. Medical Treatment
The employer must 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). As note supra, the parties stipulated that the claimant sustained a compensable injury to her right shoulder. The claimant treated with Dr. Sturdavant, who stated in January 2001 that the claimant would need to continue a physical therapy program. A subsequent MRI showed a right rotator cuff tear. Dr. Rosenzweig independently evaluated the claimant in April 2002. We recognize that Dr. Rosenzweig noted a “somatoform reaction and exaggerated pain behaviors,” but he also confirmed a full thickness rotator cuff tear. Dr. Rosenzweig recommended aggressive medical treatment and possible surgical management in order to return normal function to the claimant’s injured right shoulder. Dr. Rosenzweig opined that full recovery might not be possible short of surgery. Dr. Rosenzweig also concluded that the claimant’s rotator cuff tear was related to her occupation. The Full Commission affirms the Administrative Law Judge’s opinion that the claimant proved she was entitled to additional medical treatment.
Based on our de novo review of the entire record, the Full Commission finds that the claimant sustained wage-loss disability in the amount of 40%, in excess of the claimant’s 10% anatomical impairment. We find that the claimant proved she was entitled to additional reasonably necessary medical treatment. The Full Commission therefore affirms the opinion of the Administrative Law Judge.
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).
For prevailing on this appeal before the Full Commission, the claimant’s attorney is hereby awarded an additional attorney’s fee in the amount of $250.00 in accordance with Ark. Code Ann. § 11-9-715
(Repl. 1996).
IT IS SO ORDERED.
________________________________ OLAN W. REEVES, Chairman
________________________________ SHELBY W. TURNER, Commissioner
Commissioner Yates dissents.
DISSENTING OPINION
JOE E. YATES, Commissioner
I respectfully dissent from the majority’s opinion finding that the claimant was entitled to a 40% loss in wage-earning capacity in addition to her 10% permanent impairment rating and a finding that the claimant was entitled to continuing medical treatment. Based upon by de novo
review of the record, I find that the claimant has failed to meet her burden of proof.
The claimant works as a long-haul truck driver and is an independent owner/operator. The claimant has worked as a truck driver for approximately the last ten years. She has not worked since July of 2000. The claimant’s work history includes farm work, housecleaning, factory work, restaurant work, and sitting and caring for the elderly. The claimant has a commercial truck driving license and owns her own truck and has worked as a lease operator.
The claimant complained that her right shoulder and right upper extremity began hurting and the symptoms grew gradually worse. She eventually had to stop driving her truck on or about July 29, 2000, because the pain was too severe to continue. The claimant first sought medical treatment at an emergency room in Bedford Heights, Ohio. The claimant was seen by Dr. Malhalish with complaints of right arm pain. Dr. Malhalish noted that the claimant had been suffering from arm pain for approximately two to three months. The history that Dr. Malhalish noted stated that the claimant’s pain had progressively gotten worse over the last two weeks, with numbness in the right hand.
The claimant reported the injury and sought treatment from Dr. Henry Gindt at the Concentra Medical Clinic in Memphis, Tennessee after she returned home from Ohio. Dr. Gindt diagnosed a sprain to the right shoulder and upper arm. He recommended physical therapy and medication. The claimant was referred to Dr. Joseph Yao, who examined the claimant and noted a possible cervical disc herniation and recommended additional diagnostic studies.
The claimant ultimately came under the care of the Hattiesburg Clinic in Hattiesburg, Mississippi. Dr. Thomas Sturdavant became the claimant’s primary treating physician. Dr. Sturdavant is a physiatrist and he has remained the claimant’s primary treating physician. Dr. Sturdavant referred the claimant to Dr. William A. Morrison for evaluation and treatment. Dr. Morrison evaluated the claimant on March 1, 2001, and he assessed the claimant with a rotator cuff tear in the right shoulder. Dr. Morrison recommended that the claimant undergo surgery, but the claimant did not want to pursue that option. Ultimately, on April 24, 2001, Dr. Sturdavant found that the claimant had reached maximum medical improvement. He returned her to light duty work with limited overhead activity, no lifting of more than ten pounds, and no repetitive use of the right upper extremity. The claimant was assessed with a 10% permanent impairment rating, which was accepted and paid by the respondents.
At this time, the claimant is requesting wage-loss disability benefits. At the hearing, the claimant contended that she was permanently and totally disabled and requested additional permanent impairment benefits. However, the Administrative Law Judge found that the claimant was only entitled to a 40% loss in wage-earning capacity and no additional permanent impairment rating. The claimant has not appealed the decision of the Administrative Law Judge and has accepted the 40% loss in wage-earning capacity. The respondents have appealed the award of 40% loss in wage-earning capacity and argue that the claimant is not entitled to any loss in wage-earning capacity. I agree with the respondents.
The claimant sustained an injury to that portion of his body which is not scheduled under the Act. Therefore, the claimant’s entitlement to permanent disability benefits is controlled by Ark. Code Ann. §11-9-522. Permanent disability compensation is paid where the permanent effects of a work-related injury incapacitate the worker from earning the wages which he was receiving at the time of the injury. When making a determination of the degree of permanent disability sustained by an injured worker with an unscheduled injury, the Commission must consider medical evidence demonstrating the degree to which the worker’s anatomical disabilities impair his earning capacity, as well as other factors such as the worker’s age, education, work experience, and other matters which may reasonably be expected to affect the workers’ future earning capacity. Such other matters are motivation, post-injury income, credibility, and demeanor. 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). When it becomes evident that the worker’s underlying condition has become stable and that no further treatment will improve the condition, the disability is deemed to be permanent. If the employee is totally incapacitated from earning a livelihood at that time, he is entitled to compensation for permanent and total disability. Minor v. Poinsett Lumber Manufacturing Co., 235 Ark. 195, 357 S.W.2d 504
(1962).
In considering the factors which may affect an employee’s future earning capacity, the Commission may consider the claimant’s motivation to return to work, since a lack of interest or negative attitude impedes the Commission’s assessment of the claimant’s loss of earning capacity City of Fayetteville v. Guess, 10 Ark. App. 313, 663 S.W.2d 946 (1984) Oller v. Champion Parts Rebuilders, 5 Ark. App. 307, 635 S.W.2d 276 1982.
The record reflects that the respondent has not offered and the claimant has not requested vocational rehabilitation assistance. The claimant does not seem interested in pursuing that option. She basically said at the pre-hearing conference and at the hearing that she wants to pursue permanent disability benefits rather than explore vocational rehabilitation. Rehabilitation potential is an important factor in determining a loss in wage-earning capacity. Arkansas Freight v. Brooks, 244 Ark. 191, 424 S.W.2d 377 (1968). Whether or not an injured employee can be retrained is a pertinent factor for the Commission to consider in determining the extent, if any, of wage-earning loss. Smelser v. S. H. J Corp., 267 Ark. 966 [267 Ark. App. 996], 593 S.W.2d 61
(1980). The Commission may take a claimant’s refusal to pursue vocational rehabilitation into account in determining the degree of disability when the refusal hinders the Commission’s attempt to assess the extent of the overall disability. Second Injury Fund v. Robinson, 22 Ark. App. 157, 737 S.W.2d 162 (1987).
After the hearing, the Administrative Law Judge ordered the claimant to undergo an independent medical evaluation by Dr. Ken Rosenzweig. Dr. Rosenzweig noted that the claimant had not had any treatment for over one year since February, 2001. Dr. Rosenzweig was not availed the opportunity to review any of the previous radiographic studies that had been completed upon the claimant because she did not bring them with her. He was provided with the medical that was part of the record before us presently. Dr. Rosenzweig noted in his examination of the claimant’s shoulders:
. . .an invalid exam, resisting all attempts for active and passive range of motion, strength testing, etc. I was unable to get a true examination of the involved area. The girth of her arms and forearms measured symmetric bilaterally.”
Additionally, Dr. Rosenzweig noted with respect to the claimant’s neck examination,
Diminished flexion and extension secondary to non-cooperation. There were no palpable spasms, but a marked amount of facial grimacing and vocalization of discomfort. Her range of motion of the neck was not felt to be a valid exam. It is unclear whether she really has Spurling’s Phenomenon or increased pain with lateral flexion due to her global perceived exaggerations and inappropriate pain responses.
Dr. Rosenzweig concluded:
It appears that conservative care has been correct and there has been no recorded treatment over the past year. But, due to the absence of management, it is not known at this time, due to her somatoform behavior during examination, what she truly can and cannot do. She does have documented cuff pathology that has most likely propagated over the past year, rendering her shoulder very difficult to use, and she has allowed herself to “freeze up”, and has remained in the sling for the duration. Aggressive return to motion, satisfactory pain management and shoulder decompression and repair with proper motivation should regain satisfactory use of this shoulder, although she may never return to overhead work. At this point, based on Dr. Sturdavant’s release, it appears to be an appropriate release at that time.
When I take into consideration the claimant’s age of 53, her education, work experience, and all other matters expected to affect the claimant’s wage-earning capacity, I cannot find that the claimant is entitled to any loss in wage-earning capacity. The claimant has worked at a variety of jobs and her current status is based upon her own inability to use her arm. The claimant demonstrated inappropriate pain behavior during the testing procedure for the IME. Dr. Rosenzweig stated that the claimant could return to work at a sedentary level, but she is not interested in pursuing any sort of rehabilitation, only receiving benefits. Therefore, I find that the claimant has failed to meet her burden of proof. Accordingly, I find that the claimant is not entitled to any wage-loss disability benefits.
The claimant has the burden of proving by a preponderance of the credible evidence that medical treatment is reasonable and necessary Norma Beatty v. Ben Pearson, Inc., Full Commission Opinion, Feb. 17, 1989 (D612291); B.R. Hollingshead v. Colson Caster, Full Commission Opinion, Aug. 27, 1993 (D703346). Employers are only liable for medical treatment and services which are deemed reasonably necessary for the treatment of employees’ injuries. DeBoard v. Colson Co., 20 Ark. App. 166, 725 S.W.2d 857 (1987). In workers’ compensation cases, the burden rests upon the claimant to establish his/her claim for compensation by a preponderance of the evidence. Kuhn v. Majestic Hotel, 50 Ark. App. 23, 899 S.W.2d 845 (1995); Bartlett v. Mead Container Board, 47 Ark. App. 181, 888 S.W.2d 314 (1994). When assessing whether medical treatment is reasonably necessary for the treatment of a compensable injury, we must analyze both the proposed procedure and the condition it is sought to remedy. Deborah Jones v. Seba, Inc., Full Commission Opinion, Dec. 13, 1989 (D512553).
In my opinion, the claimant has failed to prove by a preponderance of the evidence that she is entitled to any additional medical treatment. The claimant’s treating physician released her to return to work as of April 24, 2001. The claimant has repeatedly refused to undergo any surgery which might correct her problem. Plus, the claimant also ceased physical therapy treatment. It appears that she enjoys a self-limiting behavior, secondary to pain. In the functional capacity evaluation performed at the request of Dr. Sturdavant on January 23, 2001, the evaluator noted that maximum effort was not given and that the claimant:
demonstrated inappropriate pain behavior during the testing procedure as follows: frequent facial grimacing, excessive verbalization of pain, and self-limiting secondary to pain or fear of pain despite good mechanics and relative ease of lift or movement. Inconsistent performance with non-musculoskeletal functional limitations . . . and poor effort with no signs of maximum effort observed (i.e., raised heart rate with increase in effort.
The recommendation of the functional capacity evaluation examiner was that the claimant could return to work at a sedentary level. The claimant has never been interested in anything but receiving benefits.
Therefore, when I consider all the evidence, I find that the claimant is not entitled to additional medical treatment. Although Dr. Rosenzweig has indicated that surgery might be beneficial to the claimant, she has indicated throughout her medical treatment that she does not wish to pursue that option. Accordingly, I would reverse the decision of the Administrative Law Judge.
Therefore, for all the reasons set forth herein, I respectfully dissent from the majority opinion awarding the claimant benefits.
_______________________________ JOE E. YATES, Commissioner