VALLOR v. CONLEY TRANSPORT, INC., 2003 AWCC 185

CLAIM NO. E905588

JUDY VALLOR, EMPLOYEE, CLAIMANT v. CONLEY TRANSPORT, INC., EMPLOYER, RESPONDENT, BUSINESS INS. CO. C/O RISK ENTERPRISE MANAGEMENT, INSURANCE CARRIER, RESPONDENT

Before the Arkansas Workers’ Compensation Commission
OPINION FILED OCTOBER 13, 2003

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

Claimant represented by the HONORABLE MICHAEL HAMBY, Attorney at Law, Greenwood, Arkansas.

Respondents represented by the HONORABLE NEAL HART, Attorney at Law, Little Rock, Arkansas.

ORDER
The Arkansas Court of Appeals remanded this case for clarification of our affirmation and adoption of an Administrative Law Judge’s July 3, 2001 opinion. Specifically, the court requests clarification as to “whether the ALJ and the Commission considered the 1997 hand injuries as supporting Dr. Axelsen’s 4% `total upper extremity impairment’ rating and, if so, to what extent.”

On July 3, 2001, the Administrative Law Judge awarded claimant benefits for a 4% upper left extremity impairment rating. Respondents appealed this decision, asserting in its brief that, “the 4% rating in question was not supported by or based upon objective evidence of permanency and that it was, therefore, invalid under the provisions of our current Workers’ Compensation Act.” Rejecting this argument, the Full Commission affirmed and adopted the Administrative Law Judge’s award on February 27, 2002.

This case is somewhat confusing because claimant sustained compensable injuries on two separate occasions, December 21, 1997 and May 3, 1999. The first injuries were to claimant’s left hand and wrist; the second injuries were to her left elbow and foot. The Administrative Law Judge reserved issuing an impairment rating for claimant’s compensable foot injury upon proof of continued, active treatment, but awarded the assigned 4% impairment rating for claimant’s upper left extremity, stating, “Dr. Axelsen had performed passive range of motion tests on this claimant and made this 4 percent assessment of impairment.”

Respondents appealed this decision contending that the Commission could have only “guessed” as to whether claimant’s physician used a “passive range of motion,” rather than an “active range of motion,” test with regard to claimant’s hand and wrist complaints. Even while advancing this argument, respondents assert the best result would yield from “guessing” in their favor, “If we have to guess how the rating was calculated, the best guess, based upon the evidence at hand, is that it was impermissibly assigned using the active range of motion measurements as the guide.”

The Arkansas Court of Appeals remanded this case for clarification on December 23, 2002, with instructions to identify which injuries were considered in awarding claimant’s 4% impairment rating.

The confusion stems from the fact that appellee suffered a variety of compensable injuries stemming from two separate work incidents. She suffered hand and wrist injuries from a fall that occurred in December 1997, which necessitated carpal-tunnel release surgeries. She subsequently suffered elbow and foot injuries from a fall that she sustained on May 3, 1999. With respect to her foot injury, the ALJ concluded that she was still undergoing active treatment and that no impairment rating would be assessed at the time of order. Thus, it is clear that the ALJ postponed a decision on the foot injury and that it is not part of this appeal. What is unclear, however, is whether the 1997 hand and wrist injuries were somehow included in the four-percent impairment rating for appellee’s upper left extremity.

We believe that most of the confusion stems from the disposition of claimant’s first injuries. Issues to be litigated in the May 3, 2001 administrative hearing were claims #E900999 (involving claimant’s hand and wrist injuries) and #E905588 (involving claimant’s foot and elbow injuries). However, the parties reached a settlement on claim #E900999 after the hearing and the Commission entered a Joint Petition Order on June 29, 2001. The court notes the Administrative Law Judge’s failure to address claim #E900999, but at the time of the July 3, 2001 order, the issue regarding claimant’s hand and wrist injuries had been resolved. Therefore, the opinion only addressed the issue of claimant’s foot and elbow injuries, the former of which was reserved.

Understandably, considerable confusion exists over the issue of whether the 4% upper left extremity impairment rating is based solely on claimant’s elbow injury of 1999, or whether it also includes her initial hand and wrist injuries of 1997.

Specifically, the court of appeals seeks to clarify “whether the ALJ and the Commission considered the 1997 hand injuries as supporting Dr. Axelsen’s 4% `total upper extremity impairment’ rating and, if so, to what extent.”

The court further noted:

A problem that we have with the ALJ’s opinion, however, is that it states, “On January 17, 2000, Dr. Axelson assesses the claimant with a 4 percent left upper extremity impairment based on her passive range of motion.” (Emphasis added). Yet an examination of Dr. Axelson’s January 17, 2000, letter demonstrates that it is not at all clear whether the impairment rating was based upon passive or active
range-of-motion measurements.

In affirming and adopting the Administrative Law Judge’s opinion and in rebutting respondents assertion that claimant was only subjected to active range of motion testing for her elbow injury, the Commission made the following assessment:

The medical records indicate the claimant was subjected to both passive and active range of motion testing. However, the Dissent relies on a medical report by Dr. Nils Axelsen, dated, December 6, 1999, on which to confirm a finding that the impairment rating Dr. Axelsen assigned was based on active range of motion tests:
Judy’s elbow is doing fine. Passively, I can get her to neutral extension, full flexion, full supination, and full pronation. Actively, she still seems to be having a little bit of trouble trying to get her full pronation and supination.
Dr. Axelson later [January 17, 2000] assigned claimant a 4% impairment rating for her upper extremity, but failed to address whether he relied on active or passive range of motion tests in this conclusion. (Documentation added).
Reading the two reports together, the Dissent concludes that the 4% impairment rating Dr. Axelsen assigned to claimant is based on subjective tests and therefore is contrary to statute. However, this argument ignores other medical reports prepared by Dr. Axelsen indicating that claimant was subjected to passive range of motion tests as well. (Emphasis added).

Because the January 17, 2000 report failed to state whether the 4% impairment rating was based on passive or active range of motion testing, the Commission highlighted Dr. Axelson’s October 27, 1999 report and Dr. Kelly’s June 2, 2000 report and stated, “When read together, those reports can support a conclusion that claimant’s assigned impairment rating is based on valid objective medical evidence. Based on medical evidence that claimant was tested both actively and passively, it is not speculation to award claimant benefits.”

Apparently, this assessment was misunderstood. The Commission relied on the October 27, 1999, the January 17, 2000, and the June 2, 2000, reports to rebut respondents’ assertion that claimant was subjected to only
active range of motion tests for her elbow. This analysis related to range of motion testing only, not to the 4% left upper extremity impairment rating. The June 2, 2000 report was not considered in the Commission’s determination of whether claimant was entitled to a 4% impairment rating for her elbow injury.

Notably, Dr. Axelsen authored the October 27, 1999 report clearly relying on passive range of motion testing, and the January 17, 2000 report awarding claimant the 4% impairment rating. Conversely, Dr. Kelly’s June 2, 2000 report regarded only claimant’s hand and wrist complaints and was not considered in the 4% rating as it was authored by another physician and regarded compensable injuries which were previously joint petitioned. Furthermore, impairment ratings for claimant’s hand injuries were assessed, not by Dr. Axelsen, but by Dr. Kelly, who awarded a 3% rating for each hand, and Akkard, who awarded a 32% rating to claimant’s right hand and a 20% rating to claimant’s left hand. These ratings are in addition to the 4% impairment rating Dr. Axelsen assigned.

Therefore, in clarification, the Commission did not consider Dr. Kelly’s June 2, 200 report on claimant’s hand and wrist injuries to justify Dr. Axelsen’s 4% upper left extremity impairment rating.

IT IS SO ORDERED.

__________________________________ ELDON F. COFFMAN, Special Chairman
__________________________________ SHELBY W. TURNER, Commissioner

Commissioner McKinney dissents.