JOHNSON v. WAL-MART STORES, INC., 2000 AWCC 273

CLAIM NO. E814637.

JAMES R. JOHNSON, EMPLOYEE, CLAIMANT v. WAL-MART STORES, INC., SELF-INSURED EMPLOYER, RESPONDENT, CLAIMS MANAGEMENT, INC. TPA, RESPONDENT.

Before the Arkansas Workers’ Compensation Commission
ORDER FILED OCTOBER 18, 2000.

Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.

Claimant represented by the HONORABLE JOSEPH P. GRAHAM, Attorney at Law, Prescott, Arkansas.

Respondent represented by the HONORABLE MIKE ROBERTS, Attorney at Law, Little Rock, Arkansas.

Decision of the Administrative Law Judge: Vacated and remanded.

ORDER

The respondents appeal an opinion and order filed by the administrative law judge on June 12, 2000. In that opinion and order, the administrative law judge found that the claimant has a permanent partial disability in the amount of 9% to the body as a whole from the claimant’s admittedly compensable right-shoulder injury. For the reasons discussed below, we find that the administrative law judge’s decision should be vacated, and this case remanded for additional findings.

The relevant facts are not in dispute. The claimant sustained a “massive” rotator cuff tear injury including the supra and infraspinatus tendons. The injury was treated by Dr. Frank Hamlin with acromioplasty and cuff repair. The claimant was later assigned a 15% impairment to the upper extremity (equivalent to 9% to the body as a whole) by Dr. Barry Green based on the results of range-of-motion testing.

On appeal, the claimant acknowledges that Dr. Green used range-of-motion tests to assess the degree of permanent impairment that the claimant sustained. The respondents assert that Dr. Green therefore relied inappropriately on subjective findings to assign the claimant an impairment rating. The claimant asserts that Dr. Green’s use of range-of-motion testing is permissible to assign an impairment rating under the current law, since Dr. Green was rating the claimant’s shoulder, and not his spine. We note that the claimant’s argument on appeal is inconsistent with prior decisions of the Arkansas Court of Appeals. See generally,Department of Parks Tourism v. Helms, 60 Ark. App. 110, 959 S.W.2d 749 (1998). Therefore, we find that the administrative law judge erred in relying on Dr. Green’s determination of range-of-motion deficits to assign the claimant a 9% impairment rating.

However, we point out that Table 27 (page 3/61) of the AMAGuides to the Evaluation of Permanent Impairment (4th Ed.) assigns impairments to the upper extremity for arthroplasty of specific bones or joints. We also note that the claimant has undergone acromioplasty surgery, for which the Commission has previously awarded benefits under Table 27. See, Rowe v. Hot SpringsRehabilitation Services, Full Workers’ Compensation Commission, Op. Filed Dec. 4, 1997 (Claim No. E506945); Houston v. RobertsonBridge Grading Division, Full Workers’ Compensation Commission, Op. Filed April 9, 1998 (Claim No. E417199). See, also, Vandiverv. Wal-Mart Associates, Inc., Full Workers’ Compensation Commission, Op. Filed March 29, 2000 (Claim No. E711036).

Consequently, we vacate the administrative law judge’s decision and remand for additional findings in light of Table 27 of the AMA Guides (4th Ed.) and the Commission’s findings in Rowe
and Houston.

IT IS SO ORDERED.

___________________________ ELDON F. COFFMAN, Chairman
_______________________________ MIKE WILSON, Commissioner

Commissioner Humphrey concurs.