McDANIELS v. GARMENT, 1995 AWCC 175

CLAIM NO. E314519

BEATRICE McDANIELS, EMPLOYEE, CLAIMANT v. EUDORA GARMENT, EMPLOYER, RESPONDENT and GAB BUSINESS SERVICES, INC., CARRIER, RESPONDENT

Before the Arkansas Workers’ Compensation Commission
OPINION FILED AUGUST 29, 1995

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

Claimant represented by ROBERT G. BRIDEWELL, Attorney at Law, Lake Village, Arkansas.

Respondent represented by GLENN W. JONES and GENE OSMENT, Attorneys at Law, Little Rock, Arkansas.

Decision of Administrative Law Judge: Modified.

[1] OPINION AND ORDER
[2] This matter comes on for review by the Full Commission from the decision of the Administrative Law Judge filed on August 31, 1994 finding that claimant sustained a compensable injury to her left hand. However, the Administrative Law Judge erred in finding that claimant is entitled to a 15% permanent partial impairment to her left hand. The evidence does not establish that claimant’s compensable injury is the “major cause” of the permanent partial impairment rating. Therefore, we modify the decision of the Administrative Law Judge.

[3] Claimant contends that she sustained a work-related injury on or about July 19, 1993. She contends that she is entitled to medical expenses, temporary total disability benefits, and permanent partial disability benefits related to her work-related injury. Respondent contends that claimant did not sustain a compensable injury for which she is entitled to temporary total disability benefits, medical benefits and/or permanent partial disability benefits. In the alternative, respondent contends that if claimant did sustain a compensable injury, she is not entitled to permanent partial disability benefits.

[4] There is substantial evidence indicating that claimant did not sustain a compensable injury in the course and scope of her employment. Claimant has a pre-existing arthritic condition in her left hand and there is persuasive evidence that any medical treatment is the result of the arthritic condition. Yet, there is sufficient corroborating evidence that claimant did bump her thumb on or about July 19, 1993. Therefore, we find that claimant sustained a compensable injury.

[5] However, claimant has failed to prove that she is entitled to any permanent partial disability benefits related to her compensable injury. A.C.A. § 11-9-102
(5)(f)(ii) states:

Permanent benefits shall be awarded only upon a determination that the compensable injury was the major cause of the disability or impairment. If any compensable injury combines with a preexisting disease or condition or the natural process of aging to cause or prolong disability or the need for treatment, permanent benefits shall be payable for the resulting condition only if the compensable injury is the major cause of the permanent disability or need for treatment.

[6] Major cause is defined by A.C.A. § 11-9-102(14) to mean “more than fifty percent (50%) of the cause. A finding of major cause shall be established according to the preponderance of the evidence.”

[7] There is insufficient evidence that claimant’s compensable injury was the “major cause” of her permanent impairment rating. In fact, a review of the medical testimony indicates that claimant’s permanent disability is the result of her pre-existing degenerative arthritic condition. The medical evidence indicates that the compensable injury was not the “major cause” of the permanent partial disability rating. Dr. Rooney specifically states:

Q. Would it be your opinion that the bump itself, as she described it, was the major cause of her problems or would the degenerative condition itself have been the cause?
A. Well, I think the bump without the underlying degenerative change probably wouldn’t produce the problem that she had. Is that what you mean?
Q. Yes. And the underlying degenerative change could become symptomatic even without a bump, correct?

A. Yes, it could.

Q. And the surgery that you did could have been done even without the bump, correct?

A. That’s correct.

Q. And would not have been done but for the underlying degenerative changes?

A. That’s correct.

[8] There is insufficient evidence in the record to support claimant’s entitlement to permanent partial disability benefits. The greater convincing force of the evidence as shown through Dr. Rooney’s deposition is that claimant’s underlying degenerative arthritic condition was the basis for the impairment rating. The compensable injury of bumping her thumb against the machine was not the “major cause” for claimant’s permanent impairment. Thus, we modify the decision of the Administrative Law Judge. Claimant sustained a compensable injury and is entitled to benefits related thereto. However, she has failed to prove by a preponderance of the credible evidence that the compensable injury was the “major cause” of her permanent impairment rating. Therefore, respondent is not liable for the 15% permanent partial disability assessed.

[9] IT IS SO ORDERED.

JAMES W. DANIEL, Chairman ALLYN C. TATUM, Commissioner

[10] Commissioner Humphrey concurs in part and dissents in part.

[11] CONCURRING AND DISSENTING OPINION
[12] While I concur with the opinion of the majority finding that claimant sustained a work-related injury and is entitled to compensation benefits, I must respectfully dissent from the finding that claimant is not entitled to any benefits for permanent anatomical impairment.

[13] Claimant operated a sewing machine for 25 years for the employer. Even though claimant suffered from a preexisting arthritic condition in her thumb, this condition was latent until she bumped her thumb at work in May 1993. This caused her preexisting condition to become symptomatic. She again injured the thumb in July 1993 and sought medical treatment. Dr. Thomas P. Rooney believed the lump on claimant’s thumb was a “firm moveable nodule which [he] thought was probably a bony fragment.” Dr. Rooney opined that the degenerative arthritis and instability in claimant’s thumb was aggravated by the work-related trauma. Thereafter, Dr. Rooney performed fusion surgery to stabilize the thumb.

[14] The majority finds that claimant’s permanent anatomical impairment is the result of preexisting degenerative arthritis in the thumb. However, Dr. Rooney explained that following the surgery, claimant developed significant stiffness, swelling and weakness in the entire hand and fingers, which resulted in reflex sympathetic dystrophy. Dr. Rooney stated that this condition was caused by the trauma of the surgery.

[15] Dr. Rooney testified that although part of the rating for permanent anatomical impairment was related to the stiffness due to the fusion of claimant’s thumb, he added that the weakness in claimant’s gripe, the stiffness in her other fingers, as well as the decreased range of motion in her entire hand are the result of reflex sympathetic dystrophy.

[16] Thus, claimant’s permanent anatomical impairment cannot be solely attributed to a preexisting arthritic condition. Since the original compensable injuries were work-related, any conditions or disability resulting from the surgery are also compensable. Therefore, even if the majority is correct in finding that claimant is not entitled to permanent disability benefits for the preexisting arthritic condition, claimant is certainly entitled to such benefits for any other disability which is directly related to the compensable injuries.

[17] PAT WEST HUMPHREY, Commissioner