CLAIM NO. E102253
CODY NICCUM, EMPLOYEE, CLAIMANT v. KEARNEY COMPANY, EMPLOYER, RESPONDENT, and GAB BUSINESS SERVICES, INSURANCE CARRIER, RESPONDENT
Before the Arkansas Workers’ Compensation Commission
OPINION FILED NOVEMBER 28, 1994
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by JEFF WATSON, Attorney at Law, Springdale, Arkansas.
Respondents represented by JAMES TILLEY, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed in part; reversed in part; and modified in part.
[1] OPINION AND ORDER
[2] Respondents appeal and claimant cross appeals an opinion of the Administrative Law Judge filed on September 30, 1993.
[3] The Administrative Law Judge found that claimant’s neck, back and shoulder difficulties are causally related to his employment; that claimant is entitled to additional temporary total disability benefits from October 6 through May 4, 1993; that claimant is entitled to benefits for a permanent anatomical impairment of 5% to each shoulder and 5% to the back; that respondent controverted claimant’s entitlement to treatment for his shoulder, neck and back injuries; and that claimant is not entitled to benefits for psychological treatment provided by Dr. Justin Ternes.
[4] Respondent does not seriously argue that the Commission should reverse the Administrative Law Judge’s finding that claimant’s neck, shoulder and back injuries are work-related. Respondent’s stipulation that it paid all medical expenses associated with these conditions and respondent’s alternative contention that claimant’s healing period ended on October 27, 1992 in relation to his neck and back difficulties, presume that these conditions are compensable. A preponderance of the evidence certainly supports this conclusion. There is insufficient evidence that the activities detailed by respondent to support its contention that claimant is not entitled to temporary total disability benefits constitute independent intervening causes of claimant’s condition. Further, we would note that it is inaccurate to say that claimant did not complain of shoulder difficulties until several months after receiving treatment from Dr. Moore in January 1991. Dr. Moore’s first office note in January 1991 clearly details shoulder complaints. Further, an arthrogram of claimant’s shoulder was performed on February 6, 1991. Therefore, we find that claimant has proven by a preponderance of the evidence that his neck, shoulder and back difficulties are work-related.
[5] Concerning temporary total disability, the Administrative Law Judge awarded additional benefits through May 4, 1993, the date Dr. Raben rated claimant’s permanent anatomical impairment with regard to his back difficulties. Dr. Moore opined that claimant reached maximum medical improvement for his elbow difficulties on October 6, 1992. Dr. Raben reported that claimant reached maximum medical improvement for his neck and back difficulties on October 27, 1992. Dr. Park indicated that he had never had claimant remain off work due to the difficulties with his shoulders. Based on the above evidence, claimant’s period of temporary total disability could not have extended beyond October 27, 1992. Accordingly, we modify the opinion of the Administrative Law Judge to find that claimant is entitled to additional benefits for temporary total disability from October 6 through October 27, 1992.
[6] Concerning claimant’s permanent anatomical impairment, a preponderance of the evidence supports the awards made by the Administrative Law Judge. Respondents have accepted and apparently paid a 5% permanent anatomical impairment to each elbow, as assigned by Dr. Moore.
[7] Dr. Park has assigned claimant a permanent anatomical impairment of 5% to each shoulder. There are objective and measurable findings to support this rating. An arthroscopy performed in April 1991 revealed chronic bursitis. Additionally, Dr. Park noted “bilateral symmetrical trigger point discomfort at the joint areas.” Each of these findings are objective and measurable. Moreover, Dr. Park has imposed restrictions of no use of the shoulders above 90 degrees, no repetitive use of the arms above 90 degrees and no lifting greater than 10 pounds. Based on the above evidence, we find that claimant has proven by a preponderance of the evidence that he is entitled to benefits for a permanent anatomical impairment of 5% to each shoulder, for a total of 10% to the body as a whole.
[8] Dr. Raben’s rating of 5% to the body as a whole with regard to claimant’s back condition is likewise supported by objective and measurable findings. Dr. Raben relied on range of motion studies of the thoracolumbar spine and MRI evidence of derangement of one of the transitional level discs. Therefore, claimant has proven by a preponderance of the evidence that he is entitled to benefits for a permanent anatomical impairment of 5% to the body as a whole in relation to his back injury.
[9] Claimant appeals Administrative Law Judge’s failure to make a finding concerning his wage loss disability. Respondent has chosen not to respond to claimant’s contentions in this regard. However, we find that claimant is entitled to such benefits in an amount equal to 15% to the body as a whole.
[10] Claimant has permanent anatomical impairments as noted above to each elbow, each shoulder and his back. These injuries are going to significantly limit claimant’s ability to use his upper extremities to lift or perform repetitive activities. Claimant experiences constant pain in both upper extremities and his back. He has difficulty sitting, lifting, walking and with most any other activity. Although claimant acknowledged that he is able to perform many activities, he presented credible testimony that if he overextends himself, he experiences an increase in his disability. Claimant is 44 years old and completed the 12th grade but did not receive a diploma. He has not had any specialized education or training. He has work experience as a carpenter, an assembly line worker, a deputy sheriff, and with the employer. He will have significant difficulty performing any job for which he is qualified on a regular and continuous basis.
[11] Concerning Dr. Mauro’s statement that claimant was pleased to stay at home with his wife as they were both on workers’ compensation, claimant provided the following explanation:
A. I told him — he kept asking me if I wanted to go back to work, and I said, `Not if I have got to work in the kind of pain I’ve been working in,’ and he would say, `Do you want to go back to work?’ and I would say, `Not if I have to go back to work in the kind of pain that I had,’ so — but he asked me about some of this, and I said, `Well, you know, my wife and I get along fine,’ which we do. You know, we can stay —
Q. Did you — I’m sorry. Go ahead.
A. I mean, we can stay together 24 hours a day and it doesn’t bother us a bit.
[12] Based on the above evidence concerning claimant’s loss in wage earning capacity, we find that claimant has proven by a preponderance of the evidence that he is entitled to benefits for a wage loss disability of 15% to the body as a whole.
[13] Claimant has not appealed the Administrative Law Judge’s finding that he failed to prove by a preponderance of the evidence that he is entitled to benefits for a psychological condition. However, Dr. Justin A. Ternes clearly opined that claimant’s psychological treatment was not causally related to his employment.
[14] The Administrative Law Judge found that respondent controverted claimant’s entitlement to treatment for his shoulder, neck and back injuries. However, the parties stipulated that as of the date of the hearing, respondent had paid all medical expenses, except those for psychological treatment. Therefore, we find that respondent did not controvert claimant’s entitlement to treatment for the shoulder, neck and back injuries and accordingly, reverse the opinion of the Administrative Law Judge in this regard.
[15] For the foregoing reasons, we affirm the opinion of the Administrative Law Judge finding that claimant is not entitled to benefits for psychological treatment; that claimant’s neck, back and shoulder difficulties are causally related to his employment; and that claimant is entitled to benefits for a permanent anatomical impairment of 5% to each shoulder and 5% to his back. Further, we modify the opinion of the Administrative Law Judge to find that claimant is entitled to benefits for temporary total disability from October 6 through October 27, 1992. Additionally, we reverse the opinion of the Administrative Law Judge finding that respondent controverted claimant’s entitlement to treatment for the shoulder, neck and back injuries. Finally, we find that claimant has proven by a preponderance of the evidence that he is entitled to benefits for a wage loss disability of 15% to the body as a whole. Respondents are directed to comply with the award set forth herein and in 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 opinion of the Administrative Law Judge. For prevailing in part on this appeal before the Commission, claimant’s attorney is hereby awarded an additional attorney’s fee in the amount of $250.00.
[16] IT IS SO ORDERED.
JAMES W. DANIEL, Chairman ALLYN C. TATUM, Commissioner PAT WEST HUMPHREY, Commissioner
