CLAIM NO. E610689
Before the Arkansas Workers’ Compensation Commission
ORDER FILED OCTOBER 28, 1999
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE THOMAS H. McGOWAN, Attorney at Law, Little Rock, Arkansas.
Respondent No. 1 represented by the HONORABLE JOHN D. DAVIS, Attorney at Law, Little Rock, Arkansas.
Respondent No. 2 represented by the HONORABLE TERRY PENCE, Attorney at Law, Little Rock, Arkansas.
Decision of the Administrative Law Judge: Affirmed as modified.
[1] OPINION AND ORDER[2] The respondents appeal an opinion and order filed by the administrative law judge on April 29, 1999. In that opinion and order, the administrative law judge found that the claimant has proven by a preponderance of the evidence that he has experienced a change in his physical condition which entitles him to an additional 8% in his permanent impairment rating. After conducting a de novo review of the entire record, we find that the claimant has proven by a preponderance of the evidence that he has experienced a change in his physical condition which entitles him to an additional 4% in his permanent impairment rating. Therefore, we find that the decision of the administrative law judge must be affirmed as modified. [3] Since the claimant’s injury occurred prior to July 1, 1993, this claim is governed by the provisions of the Arkansas Workers’ Compensation Law as it existed prior to Act 796 of 1993. As regards a change in physical condition, Ark. Code Ann. §11-9-713(a) (1987) states:
[4] As regards the claimant’s claim for an increase in permanent disability benefits, Ark. Code Ann. § 11-9-704(c) (1987) states in relevant part:(a) Except where a joint petition settlement has been approved, the commission may review any compensation order, award, or decision. This may be done at any time within six (6) months of termination of the compensation period fixed in the original compensation order or award, upon commission’s own motion or upon the application of any party in interest, on the ground of a change in physical condition or upon proof of erroneous wage rate. Upon the 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.
[5] In the present case, an administrative hearing was held on September 23, 1997. As a result of the hearing, the claimant was found to have sustained a 35% impairment to his wage-earning capacity in excess of a 12% anatomical impairment rating accepted by the respondents. There is no dispute that the present claim for a change in physical condition was presented within six months of termination of the prior compensation period fixed in the original compensation award. [6] We find that the claimant has proven by a preponderance of the evidence that he has sustained a change in physical condition, and an increase in his physical impairment. The record indicates that Dr. Jordon performed range of motion testing following fusion surgery in 1991, which formed the basis of Dr. Jordon’s original 12% impairment rating. Dr. Jordon performed range of motion testing again on September 7, 1997, and assigned the claimant a 16% impairment rating. Dr. Jordon performed range of motion testing on September 9, 1998, and assigned the claimant a 20% impairment rating. Dr. Jordon testified he has consistently used the 1998 edition of theAmerican Medical Association Awards to Permanent Impairment. Dr. Jordon also testified that he would expect the claimant’s underlying condition to worsen over time. [7] We find that the claimant has established a change in physical condition. The respondents assert that Dr. Jordon’s range of motion testing is insufficient to establish a change in physical condition in the form of increased anatomical impairment. However, we note that under Pre-Act 796 law, range of motion testing was found to be an “objective and measurable physical finding”. See, Taco Bell v. Finley, 38 Ark. App. 11, 826 S.W.2d 313 (1992). In addition to testifying that he expected the claimant’s underlying condition to worsen over time, Dr. Jordon also explained that increased muscle spasm causes decreased range of motion. [8] However, as the respondents also point out, Dr. Jordon’s records indicate that the claimant’s anatomical impairment on September 7, 1997, ine days prior to the first hearing, was already 16%. Therefore, we find that the claimant has only established a 4% increase in his permanent disability, representing the difference between his 16% impairment at the time of the first disability hearing, and his 20% impairment at the time of the most recent hearing. [9] Therefore, after conducting a de novo review, and for the reasons discussed herein, we find that the administrative law judge’s decision must be, and hereby is, affirmed as modified. [10] 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 administrative law judge’s decision in accordance with Ark. Code Ann. § 11-9-809 (Repl. 1996). For prevailing in part on this appeal before the Full Commission, claimant’s attorney is hereby awarded an additional attorney’s fee in the amount of $250.00 in accordance with Ark. Code Ann. § 11-9-715Any determination of the existence or extent of physical impairment shall be supported by objective and measurable physical or mental findings.
(Repl. 1996). [11] IT IS SO ORDERED. [12] __________________________
ELDON F. COFFMAN, Chairman __________________________ MIKE WILSON, Commissioner [13] Commissioner Humphrey recused.