LEWIS v. WORTH JAMES CONSTRUCTION, 1998 AWCC 258

CLAIM NO. E019648

GEORGE LEWIS, EMPLOYEE, CLAIMANT v. WORTH JAMES CONSTRUCTION, EMPLOYER, RESPONDENT, and CNA INSURANCE COMPANY, INSURANCE CARRIER, RESPONDENT

Before the Arkansas Workers’ Compensation Commission
OPINION FILED JULY 6, 1998

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

Claimant represented by the HONORABLE SIMMONS S. SMITH, Attorney at Law, Little Rock, Arkansas.

Respondents represented by the HONORABLE FRANK B. NEWELL, Attorney at Law, Little Rock, Arkansas.

Decision of the Administrative Law Judge: Reversed.

[1] OPINION AND ORDER
[2] The respondents appeal that portion of an administrative law judge’s decision filed on December 12, 1997, finding that the claimant has undergone a change in physical condition and is entitled to additional permanent disability benefits. After conducting a de novo review of the entire record, we find that the claimant has failed to prove by a preponderance of the evidence that he has experienced a change in physical condition. Therefore, we find that the administrative law judge’s decision in this regard must be reversed. [3] The claimant was injured on November 2, 1990, when a truck tire he was working on exploded. The accident resulted in injuries to the claimant’s left arm, shoulder, neck, and chest. The injuries to the claimant’s arm were the most severe of his various injuries. The claimant underwent surgical repair of the arm and it was immobilized for a significant period of time. The claimant also suffered some ulnar nerve damage in his arm, and a EMG suggested that the claimant had sustained a partial denervation of the C6-7 nerve root distributions. The claimant was first diagnosed with reflex sympathetic dystrophy (RSD) in July 1991 by Dr. Herbert Hahn, an orthopedic surgeon in Little Rock, Arkansas, who is the claimant’s authorized treating physician. [4] Medical records subsequent to Dr. Hahn’s diagnosis reflect that the claimant displayed all of the classic symptoms of RSD: i.e., swelling, temperature changes, heat and cold sensitivity, excessive sweating, burning sensations, muscle atrophy, etc . . . The symptoms manifested themselves not only in the claimant’s arm but in his neck and face as well. The claimant has exhibited evidence of swelling in his face and has complained of auditory and visual problems that did not develop until after his injury. Even after the claimant’s arm injury healed, he continued to suffer from these symptoms. [5] A previous hearing was conducted on July 6, 1994, to determine the extent of the claimant’s permanent disability. In an opinion and order filed on September 21, 1994 an administrative law judge found that the claimant had sustained a 15% anatomical impairment rated to the body as a whole as a result of his compensable injury and that the claimant had sustained an overall permanent disability of 40% to the body as a whole. By the time of the first hearing, and continuing to the present, the bulk of the medical care the claimant has received has been for treatment of his RSD condition. [6] The present claim for additional benefits which the claimant has filed herein, is based upon Ark. Code Ann. § 11-9-713(a) (Repl. 1996). That section provides as follows:

(1) Except where a joint petition settlement has been approved, the Workers’ Compensation Commission may review any compensation order, award, or decision.
(2) This may be done at any time within six months of termination of the compensation period fixed in the original compensation order or award, upon the Commission’s own motion whereupon the application of any party in interest, on the ground of a change in physical condition or whereupon proof of erroneous rate.
(3) Upon review, the Commission may make an order or award terminating, continuing, decreasing, or increasing for the future, the compensation previously awarded, subject to the maximum limits provided for in this chapter.

[7] The threshold determination that must be made in this case is whether the claimant has undergone a change in physical condition sufficient to justify an increase in his previous award of permanent disability benefits. At the present time, there is no doubt that the traumatic injuries the claimant sustained in his 1990 injury have resolved themselves to the extent that they have become stable and are not causing any disability in excess of what they were at the time of the previous hearing. However, the substance of the claimant’s claim is that his RSD has worsened and that he is now entitled to additional disability benefits as compensation for that condition. At the most recent hearing, the claimant testified that his RSD condition has grown worse. The claimant stated that the symptoms he experiences are now more severe and debilitating than they were at the time of the prior hearing. The claimant specifically notes that his facial and head swelling are greater and that he has frequent periods in which he is unable to see or hear properly. He has also stated that the pain in his hand and arm is more intense and is more limiting than he previously suffered. [8] The impetus for the claim filed by the claimant is a report from Dr. Herbert Hahn, dated January 14, 1997. In that report, Dr. Hahn discusses the claimant’s overall condition. Among other things, Dr. Hahn notes that the claimant is suffering from partial radial nerve palsy of the left upper extremity, reflex sympathetic dystrophy involving the left upper extremity, head, left ear, left eye, vocal cords, and left side of the chest, and a left chest wall contusion. The report then states as follows:

Mr. Lewis was last rated in January of 1993, which is four years ago, and at that time, my rating on the basis of mechanical abnormalities to the left upper extremity was 25% of the left upper extremity and I signed a rating with regard to lumbar disc disease and left lower extremity radiculopathy of 15% of the body as a whole. He has deteriorated since that time.

[9] However, Dr. Hahn contradicted that statement in his deposition taken on September 23, 1997. During the course of the deposition, the following exchange took place when the respondents’ counsel was questioning the doctor about the status of the claimant’s reflex sympathetic dystrophy.

Q: . . .Is that worse? Is that condition worse?

A: My sense of it, it is, it’s about the same, trying to recollect as best I can the overall condition related to just the reflex sympathetic dystrophy. There are other things that are affecting him that have changed since then, but just that portion of the process I would say is about the same.
Q: Now, what has changed? You say other aspects of his condition have changed?
A: Well, he has other affected body parts. His lumbar spine is symptomatic with disc disease. He has an arthritic knee, high blood pressure. There are a variety of things that are ongoing processes that do not distinctly affect his physical function that were not integral parts of his initial injury.
Q: Okay, so this is what I was having difficulty with in reading some of the medical reports. Is it your opinion that his degenerative disc disease is related to the injury he had?

A: Lumbar disease? Yes, . . . Answer no.

Q: Lumbar disease in 1990?

A: I would say it is not.

Q: Okay, then what about the arthritic left knee?

A: It is not.

Q: What about the high blood pressure?

A: . . . Hypertension is common, and so it is likely that this is just a coincident.

[10] The claimant’s counsel also questioned Dr. Hahn in a similar vein. When asked whether the claimant’s condition had gradually developed, Dr. Hahn made the following statement:

He has had this degree of functional impairment, in my estimation, for a number of years so it just didn’t . . . If you were saying did this gradually get to this point, no, I think that it has been well established for a long time. That is one of the reasons I am comfortable saying that I do not expect it to change.

[11] Dr. Hahn was also asked whether the condition was presently stable. Dr. Hahn then made the following statement:

It should be at its worst. Ordinarily, once one of these is established for several years, it also does not get significantly better.

[12] We find that the claimant has failed to establish that he has experienced a change in his physical condition sufficient to justify an award of additional permanent disability benefits. Dr. Hahn’s deposition testimony is more compelling than the one statement in his report of January 14, 1997. Dr. Hahn makes it very clear in his deposition that the nature of the claimant’s RSD condition was of long standing. Also, while the symptoms presently being suffered by the claimant are severe, the claimant’s testimony at the prior hearing indicates that they were equally severe at the time of the previous hearing. [13] While the claimant testified in this claim that his condition had deteriorated since the previous hearing, a comparison between his description of his condition in the first hearing and the second hearing are remarkably similar. In both cases, the claimant complained of severe headaches. Also, the claimant testified as to hearing and visual problems in both hearings. Likewise, the claimant indicated that persistent swelling, pain, numbness, and other symptoms in his arm were substantially disabling. Although the claimant asserts that his symptoms are now more severe than what they were before, we do not see any significant difference between the descriptions he gave of his condition at the 1994 hearing and the 1997 hearing. Also, some of the problems the claimant alluded to in the second hearing are clearly not the result of the RSD or any other compensable consequence of his injury. Specifically, the claimant related that he was having problems with his lower back and with his knee. However, Dr. Hahn stated in his deposition that the claimant’s lumbar disc problems and his arthritic knee were not related to his compensable injury. [14] We also note that, in his deposition, Dr. Hahn implies that the 15% impairment rating that he set out in January of 1993, did not include the debilitating effects of the claimant’s RSD condition. However, even if that is true, that omission would not be a sufficient basis to award the claimant additional permanent disability benefits. The award of benefits pursuant to the administrative law judge’s previous decision is res judicata as to the extent of the claimant’s permanent disability at the time of the 1994 hearing. Consequently, that decision cannot be reconsidered if the allegation is that the award was insufficient. Our decision, at present, is limited to whether the claimant has undergone a change in circumstances which results in greater disability or impairment that did not exist at the time of the original hearing. [15] Therefore, after conducting a de novo review of the entire record, and for the reasons set out above, we find that the claimant has failed to establish by a preponderance of the evidence that he has suffered a change in physical condition sufficient to justify an award of additional permanent disability benefits. Therefore, we find that the decision of the administrative law judge in this regard must be reversed. [16] IT IS SO ORDERED.

ELDON F. COFFMAN, Chairman MIKE WILSON, Commissioner

[17] Commissioner Humphrey dissents.