CLAIM NO. E115092
NANCY TATUM, EMPLOYEE, CLAIMANT v. INTERNATIONAL PAPER COMPANY, SELF-INSURED, EMPLOYER, RESPONDENT
Before the Arkansas Workers’ Compensation Commission
OPINION FILED MARCH 13, 1995
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by ZAN DAVIS, Attorney at Law, Little Rock, Arkansas.
Respondent represented by MICHAEL J. DENNIS, Attorney at Law, Pine Bluff, Arkansas.
Decision of Administrative Law Judge: Affirmed in part and reversed in part.
[1] OPINION AND ORDER
[2] Both parties appeal an opinion of the Administrative Law Judge filed on March 18, 1994.
[3] Respondent appeals the Administrative Law Judge’s award of benefits for attendant care services from August 28, 1991 through November 15, 1991. Claimant appeals the Administrative Law Judge’s finding that her left shoulder difficulties are not causally related to an admittedly compensable injury sustained on August 27, 1991.
[4] Claimant has the burden of proving by a preponderance of the evidence that she is entitled to compensation. Stone V. Patel,
26 Ark. App. 54,
759 S.W.2d 579 (1988); Ark. Code Ann. §
11-9-705 (a)(3) (Supp. 1993). Questions of credibility and the weight and sufficiency to be given evidence are matters within the province of the Workers’ Compensation Commission. Central Maloney, Inc. v.York,
10 Ark. App. 254,
663 S.W.2d 196 (1984). After our de novo review of the entire record, we find that claimant has met her burden of proof. Accordingly, we affirm the Administrative Law Judge’s award of benefits for attendant care services but reverse the finding concerning claimant’s left shoulder difficulties.
[5] On August 27, 1991, claimant was injured when both of her arms were pulled into a paper-winder machine. The machine has two cylinders, which look like an old-time, wringer washing machine. Both of claimant’s arms were rolled between the cylinders up to the elbows. Claimant sustained two fractured fingers on her left hand and one on her right. Additionally, she sustained crush injuries to the soft tissues of both arms up to the elbows. Although Dr. John Lytle, claimant’s treating physician for several months after the accident, initially did not document complaints concerning claimant’s left shoulder, claimant presented credible testimony that she experienced symptoms involving her entire left upper extremity, including her left shoulder, and that she voiced these complaints to Dr. Lytle.
[6] Dr. Lytle testified that claimant’s treatment was “complicated.” He added that claimant complained of pain in her left shoulder and over time developed stiffness. However, Dr. Lytle testified that he never documented or found a specific injury to her left shoulder. Dr. Lytle added that he performed no tests to determine whether claimant was experiencing some sort of internal derangement in the shoulder. In a report dated January 3, 1992, Dr. Lytle stated that claimant “continues to be stiff in her shoulder. . . .” On that date Dr. Lytle rated claimant’s permanent anatomical impairment at 15% to the left upper extremity, inclusive of the difficulties claimant was experiencing with her shoulder.
[7] Claimant came under the care of Dr. John Dodson in early May of 1992. Dr. Dodson believe claimant’s symptoms were “highly suggestive of internal derangement of the shoulder, most notably a rotator cuff tear.” An MRI of claimant’s left shoulder was interpreted as abnormal. Dr. Dodson referred claimant to Dr. Richard Nix, who performed surgery for chronic impingement syndrome and rotator cuff tendonitis. When claimant’s condition failed to progress satisfactorily, Dr. Nix performed exploratory surgery on claimant’s left shoulder, repaired a rotator cuff tear and smoothed a small osteophyte.
[8] On April 26, 1992, claimant was involved in a nonwork-related motor vehicle accident. Respondent claims that this accident was an independent intervening cause of claimant’s left shoulder difficulties. Claimant presented credible testimony that only her right shoulder and neck were injured in this accident and that the problems she was experiencing with her left upper extremity were already present and related to the compensable injury. The emergency room record concerning the motor vehicle accident details right arm complaints and notes a previous injury in August 1991 to her left upper extremity. Based on this evidence, we find that the motor vehicle accident was not an independent intervening cause of claimant’s left shoulder problems.
[9] Dr. Lytle opined that claimant’s chronic impingement syndrome and rotator cuff problems are not causally related to the compensable injury. However, as noted above, claimant complained of left shoulder symptoms while under the care of Dr. Lytle but Dr. Lytle never caused any diagnostic studies to be performed to delineate any possible condition. Dr. Dodson reviewed various medical records, including those generated by Dr. Dodson, as well as claimant’s history, and opined that claimant’s left shoulder problems are causally related to the compensable injury. Claimant likewise testified that her problems relate back to the work-related injury. Based on this evidence, we find that claimant has proven by a preponderance of the evidence that her left shoulder difficulties are causally related to the compensable injury.
[10] Concerning attendant care services, the Administrative Law Judge awarded benefits for twenty-four hour care from August 28 through November 15, 1991. Claimant, Barbara Gulley, Cheryl Grant and Anna Simpkins testified that during that period of time claimant needed twenty-four hour assistance with her personal needs. They added that claimant could never be left alone. Based on this evidence, we find that claimant has proven by a preponderance of the evidence that she is entitled to benefits for attendant care services from August 28 through November 15, 1991.
[11] For the foregoing reasons, we affirm the opinion of the Administrative Law Judge awarding benefits for attendant care services from August 28 through November 15, 1991. Additionally, we reverse the opinion of the Administrative Law Judge finding that claimant failed to prove by a preponderance of the evidence that her left shoulder difficulties are causally related to the work-related injury. 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 on this appeal before the Commission, claimant’s attorney is hereby awarded an additional attorney’s fee in the amount of $250.00.
[12] IT IS SO ORDERED.
JAMES W. DANIEL, Chairman PAT WEST HUMPHREY, Commissioner
[13] Commissioner Tatum concurs and dissents.
[14] CONCURRING AND DISSENTING OPINION
[15] I concur with part and dissent with part of the majority’s decision. I concur with the decision of the Administrative Law Judge finding that claimant is entitled to benefits for attendant care from September 23, 1991 through November 15, 1991. However, I respectfully dissent from the majority’s determination that claimant has proven by a preponderance of the credible evidence that her left shoulder injury is causally related to her compensable injury of August 27, 1991. Therefore, as stated, I concur with part and dissent with part with the majority’s decision.
[16] ALLYN C. TATUM, Commissioner
