BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. G HERMINA OSORNIO, EMPLOYEE CLAIMANT TYSON POULTRY, INC.

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1 BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. G HERMINA OSORNIO, EMPLOYEE CLAIMANT TYSON POULTRY, INC., EMPLOYER TYNET CORPORATION INSURANCE CARRIER RESPONDENT RESPONDENT OPINION FILED FEBRUARY 17, 2015 Hearing before ADMINISTRATIVE LAW JUDGE AMY GRIMES, in Springdale, Washington County, Arkansas. Claimant represented by JENNIFER NEWMAN, Attorney, Springfield, Missouri. Respondent represented by E. DIANE GRAHAM, Attorney, Fort Smith, Arkansas. STATEMENT OF THE CASE On November 24, 2014, the above captioned claim came before the Workers Compensation Commission in Springdale, Arkansas, for a hearing. A pre hearing conference was conducted on May 20, 2014, and a pre hearing order filed that same date. A copy of the pre hearing order has been marked as Commission s Exhibit No. 1 and with modification and no objection is made part of the record. The parties agreed to the following stipulations: 1. The Arkansas Workers' Compensation Commission has jurisdiction of this case. 2. The relationship of employee-employer-insurance carrier existed at all relevant times on September 28, The date of the compensable injury to the right shoulder is September 28, The rates of compensation are $ for temporary total disability and $ for permanent partial disability. 5. The claimant's healing period ended on October 11, 2012.

2 G HERMINA OSORNIO The respondents have accepted liability for permanent partial disability in the amount of 7% to the claimant's body as a whole. The issues to be litigated are limited to the following: 1. Whether claimant sustained injury to her right forearm, right elbow, neck, and upper back as a result of the September 28, 2011 injury. 2. Whether claimant is entitled to further medical care for her right forearm, right elbow, neck, right shoulder, and upper back on September 28, The nature and extent of permanent partial disability for alleged injuries. 4. Reimbursement for medical treatment rendered on April 30, 2012, May 7, 2013, and June 12, Attorney s fees. The claimant contends she injured her right forearm, right elbow, right shoulder, neck, and upper back on September 28, The respondents authorized medical treatment with regard to her right shoulder. However, the respondents have not provided the claimant with medical treatment with regard to her right forearm, right elbow, neck, and upper back. The claimant alleges that she is in need of additional medical treatment for her work injury. The claimant alleges that she sustained permanent disability to her right forearm, right elbow, and upper back on September 28, The respondents have not paid any permanent partial disability benefits with regard to the right forearm, right elbow, and upper back. The claimant also alleges that she sustained permanent partial disability in excess of Dr. Andrew Heinzelman's rating of 7% of the body as a whole with regard to the right shoulder. The claimant has had continuing pain in her right shoulder, right forearm, right elbow, neck, and upper back after her release from authorized medical treatment. The claimant may be willing to forego additional medical treatment if the parties are able to reach a settlement agreement. The claimant contends that

3 G HERMINA OSORNIO -3- her attorney is entitled to an attorneys' fee in the amount of 25% of the indemnity payments to the claimant pursuant to A.C.A (a)(1)(b). The respondent contends they accepted claimant's right shoulder injury as compensable and have paid all appropriate benefits. Respondent denies a compensable injury to any body part other than the right shoulder. Claimant has done nothing after the healing period ended October 11, 2012, with the exception of filing an AR-C in September No further action was taken until respondent filed a Motion to Dismiss in the case on April 18, The above stipulations are hereby accepted as fact. From a review of the record as a whole to include medical reports, documents, and having heard testimony and observed demeanor of all witnesses, the following decision is rendered. FACTUAL BACKGROUND The claimant is a 56 year old female who suffered an admittedly compensable injury to her right shoulder on September 28, 2011(T. 8; Comm. X 1). The claimant worked in the deboning department, cooking chicken(t. 9). The claimant testified that she was initially injured while working for the respondent at Chick-N-Quick(T. 10). She added that in that position, she weighed meat, packaged it and put it into bags(t. 10). She lifted 28 to 30 pounds while working in this position. The claimant stated that while working for Chick-N-Quick on September 28, 2011, she lifted both of her arms and heard a cracking sound at the base of her skull down to her right shoulder(t. 11). The claimant stated that she had no prior issues with her neck or shoulder before September 28, 2011, and was sent for medical treatment for her injuries(t. 12). The claimant had right shoulder surgery in May of 2012 which was performed by Dr. Heinzelmann(T. 14, 31). The claimant was returned to work on one-handed duty four days later, and she confirmed this on cross examination(t. 31). The claimant

4 G HERMINA OSORNIO -4- further added that the respondent provided her with work within the restrictions set out by Dr. Heinzelmann(T. 31). The claimant testified that she saw Dr. Gathright, her personal physician, in June of 2012 for continuing pain. She added she could not get a call back from Dr. Heinzelmann(T ). Workers compensation did not pay for that treatment(t. 15). The claimant was prescribed physical therapy from August 2012 until October 2012 and was working on light duty with restrictions(t. 16). The claimant last saw Dr. Heinzelmann in October of 2012 and was released from treatment(t. 16). Dr. Heinzelmann ordered a functional capacity evaluation and it was performed on October 30, 2012(T. 32). The claimant testified that she did not know that the results of the testing were deemed unreliable, with 33 of 54 inconsistencies(t. 32). Dr. Heinzelmann gave the claimant a permanent impairment rating of 7% related to the right shoulder injury(t. 33; Comm. x 1). The respondent paid the rating(t. 33). The claimant stated that she returned to work after being released, but had difficulty performing her job duties. The claimant added on cross examination that she worked during the time the rating was paid(t. 33). She continued that her hand and part of her back hurt. She added all of the hand and up to the right shoulder hurt(t. 19). The claimant testified that she reported her continuing issues to the nurses at work several times. They rendered no further treatment. The claimant further testified that she was not approved for any further treatment after begin released by Dr. Heinzelman(T. 19). The claimant stated that after release, she continued to have hand cramps and she was unable to lift over head with her right shoulder. The claimant continued that she was required to lift 28 to 30 pounds at work and she was lifting the weight with her right shoulder, but it hurt a lot (T. 20). She stated, I feel like I have pricks all over my hands (T. 20). The claimant stated, she felt like ants were crawling on her and she could not lift heavy items(t. 21). The claimant testified that she was not employed at the time of the hearing and had been on short term disability for 11 weeks since January

5 G HERMINA OSORNIO -5-27, 2014(T. 21, 25). The claimant stated that she could have been on leave with the respondent for one year, but chose to resign because of her cancer treatment(t. 38). The claimant was seen by Dr. Mullins in August of 2014(T. 22). She stated she was still having issues with her right shoulder and arm(t. 22). Dr. Mullins assigned an 18% rating to the claimant and placed her on restrictions(t. 23; Cx 1, p ). On cross examination, the claimant agreed that she had pain in the right side of her neck along with cervical strain in During that time she was taken off work and given medication(t. 27). The claimant further agreed that in September of 2011 she saw Dr. Haws and was x-rayed and returned to work(t. 28). Dr. Haws placed the claimant on one handed duty and ordered a MRI of the claimant s shoulder and referred the claimant to Dr. Heinzelmann(T. 28). Dr. Heinzelmann continued the claimant s one handed duty(t. 28). The claimant confirmed that she did not return to Dr. Heinzelmann because he would not answer her calls. She added further on cross examination that Dr. Haws also would not answer her calls(t ). The claimant further confirmed that she filed her visit to Dr. Gathright on June 12, 2012 with her group health insurance(t. 31). The claimant continued on cross examination that she saw Dr. Heinzelmann nine times, but had not seen him in 2013 or The claimant further agreed that she had not seen any other doctor for her right shoulder from 2012 until she saw Dr. Mullins in 2014(T. 33). The claimant further added on cross examination that she was seen at Mercy Clinic on May 9, 2013 for coughing(t. 33; Rx 1, p. 90). The claimant also remembered being seen for a medical visit on January 27, 2014 for pneumonia(t. 34; Rx 1, p ). The claimant agreed that she was seen again on February 3, 2014 for pneumonia(t. 34). The claimant further confirmed, on cross examination, that she was seen in the ER after her release by Dr. Heinzelmann(T. 34). The claimant was seen in November 2012 for abdominal pain, diarrhea and vomiting(t. 34; Rx 1, p ). The claimant then

6 G HERMINA OSORNIO -6- began seeing Dr. Oakhurst for cancer treatments in February of 2014(T. 34; Rx 1, p ). The claimant stated that she was not aware that the doctor evaluated her extremities and musculoskeletal system(t. 34). Dr. Oakhurst noted in every visit with the claimant that she had normal range of motion for the musculoskeletal system(t. 35; Rx 1, p ). Dr. Oakhurst noted that the claimant s extremities were normal(t. 35; Rx 1, p ). The claimant stated that she did know that Dr. Oakhurst had noted she had no pain on visits to him(t ; Rx 1, p. 97, 107, 118, 155). The doctor further noted on some visits that the claimant had abdominal pain or pain in her legs, but noted on her last visit with him on July 3, 2014 she had no pain(t. 36). Dr. Oakhurst also noted a normal range of motion for the claimant in July 2014(T. 36). The claimant stated that she had suffered pain ever since being diagnosed with cancer(t. 36). The claimant confirmed on cross examination that she was examined by Dr. Mullins(T. 37). She added that the examination consisted of her moving her arm and hand above her, in front of her, and out to the side and back(t. 37). The claimant confirmed that she stopped the motion when she wanted because it hurt. She told Dr. Mullins the motion hurt and stopped moving(t. 37). The examination took 45 minutes The claimant stated that these were the only tests that Dr. Mullins performed(t. 37). DISCUSSION The claimant in this matter has first asked the Commission to determine if she suffered compensable injuries to her right elbow, right forearm, neck and upper back as a result of a work related incident on September 28, The claimant has an admittedly compensable right shoulder injury for which the respondents have paid benefits. The medical records submitted reflect that the claimant, indeed, suffered a rotator cuff tear(rx 1, p. 38). The claimant had surgery for the compensable right shoulder injury on May 18, 2012(Rx 1, p ). The claimant was assessed a 7% impairment by Dr.

7 G HERMINA OSORNIO -7- Heinzelman and the respondents have accepted and paid the rating(rx 1, p ; Comm x 1). A.C.A (4)(A)(i) defines compensable injury as: An accidental injury causing internal or external physical harm to the body... arising out of and in the course of employment and which requires medical services or results in disability or death. An injury is accidental only if it is caused by a specific incident and is identifiable by time and place of occurrence. The claimant must prove by a preponderance of the evidence that she sustained a compensable injury as defined under A.C.A (4)(A)(i); See also (4)(E)(i). A preponderance of the evidence means the evidence having greater weight or convincing force. Smith v. Magnet Cove Barium Corp., 212 Ark. 491, 206 S.W. 2d 442 (1947). Furthermore, to be compensable under the same burden, the claimant must prove that the existence of physical injury or damage is supported by medical evidence. A.C.A (4)(D) requires that a compensable injury must be established by medical evidence. The statute also requires that the medical evidence submitted be in the form of objective findings. Objective findings are defined in A.C.A (16)(A)(i) as those findings which cannot come under the voluntary control of the patient. The statute requires medical opinions addressing compensability must be stated within a reasonable degree of medical certainty, A.C. A (16)(B). The Arkansas Court of Appeals has addressed this issue in previous opinions. The Court in 1998 affirmed the Commission s finding that the claimant did not sustain a compensable injury when there was no evidence connecting objective medical findings to an alleged specific incident, Ford v. Chemipulp Process, Inc., 63 Ark. App. 260, 977 S.W. 2d 5 (1998). Here, the claimant has testified that she had continued right shoulder pain, which included some numbness in her arm. A review of all the medical records presented reflects that the claimant had a right shoulder injury; however, there is no evidence of injuries to her right forearm, right elbow, neck and upper back. The claimant was seen by

8 G HERMINA OSORNIO -8- numerous doctors. Initially, her treating physicians noted her shoulder issues, but no others. The claimant s x-rays as early as October 17, 2011 reflect no abnormalities(cx 1, p. 2). X-rays taken on October 18, 2011 show that the claimant had no acute pathology of the cervical spine and further showed that the claimant had a normal study of the right elbow(cx 1, p. 15). Dr. Heinzelmann, who performed surgery on the claimant, noted in April of 2012 that while the claimant might have a rotator cuff tear that would cause her pain, she should still have full function of the elbow, the hand, and the wrist(cx 1, p. 50). He further noted that he was unable to reproduce radiating pain upon examination of the claimant s neck(cx 1, p. 50). Post surgery on May 25, 2012, Dr. Heinzelmann noted that there was no complications from the claimant s shoulder surgery. Furthermore, the claimant was seen numerous times subsequent to her September 2011 shoulder injury for various aliments, but none of those records reflect that she reported problems with her right elbow, right forearm, neck, and upper back. The claimant saw her personal physician on June 12, 2012 and reported shoulder pain, spreading to her chest. She reported nothing related to her right forearm, elbow, neck, or upper back. Additionally, the medical records submitted reflect that none of the examinations performed by any of the physicians that the claimant saw found problems with the claimant s neck, upper back, right forearm, or right elbow. In fact, the majority of the examinations and x-rays related to the musculoskeletal area were noted as normal, with the exception of the right shoulder. While the court in Ford affirmed a finding that there was no connection to objective medical findings and a specific incident, in the instant case, there are simply no objective medical findings to support the claimant s contention that she suffered compensable injuries to her right elbow, right forearm, neck and upper back. The claimant must prove by a preponderance of the evidence that she sustained compensable injuries and the compensable injuries must be supported by objective medical findings. Here, the claimant has failed to prove by a preponderance of the evidence that she sustained

9 G HERMINA OSORNIO -9- compensable injuries to her right elbow, right forearm, neck, and upper back on September 28, Having found that the claimant did not suffer compensable injuries to her right elbow, right forearm, neck, and upper back, the issue of medical treatment as it relates to those areas is moot. The claimant further asked for additional medical treatment for her compensable right shoulder injury. However, a review of the medical evidence does not reveal any particular recommendation for further medical treatment related to the claimant s right shoulder injury. The claimant was assessed to be at MMI and received an impairment rating of 7% from Dr. Heinzelmann in January of He made no recommendations for further treatment. At the request of the claimant s attorney, in August of 2014 Dr. Mullins assessed an impairment rating of 18%. He noted that the claimant s future medical care might include physical therapy, pain medications, and injections(cx 1, p. 161). I do not find Dr. Mullins recommendations to be credible as to the future medical treatment needed by the claimant. I find that there is no evidence to suggest that the claimant needs any specific additional medical treatment and the claimant s request is denied. The claimant has also asked the Commission to address the issue of the extent of the claimant s permanent partial disability. Having found that the claimant did not suffer compensable injuries to her right forearm, right elbow, neck, and upper back, the issue of PPD for those injuries is moot. However, the issue of PPD related to the claimant s compensable right shoulder injury must be addressed. Two different impairment rating assessments have been submitted into evidence. Dr. Heinzelmann assessed a 7% impairment rating for the claimant in January of Dr. Mullins, almost a year and one half later, assessed an 18% impairment for the claimant at the request of her attorney. Dr. Mullins report reflects an assessment based on subjective findings, all within the control of the claimant, not objective medical findings. A.C.A defines objective findings as findings which cannot come under the voluntary control of the patient. The claimant clearly testified that she responded to testing by Dr.

10 G HERMINA OSORNIO -10- Mullins by stopping the movement in her extremities when she experienced pain. She stated that she reported to Dr. Mullins that the movement hurt and she stopped the movement. These findings clearly are subjective and under the control of the claimant. The examination of the claimant took only some 45 minutes. A.C.A (c)(ii)(B) states that any determination of the existence or extent of physical impairment shall be supported by objective and measurable physical or mental findings. Clearly, Dr. Mullins findings and his determination of the claimant s physical impairment are not supported by objective and measurable physical findings. On the other hand, the assessment by Dr. Heinzelmann is clearly supported by objective and measurable findings as well has his treatment of the claimant from the beginning of her shoulder treatment. Furthermore, A.C.A (16)(A)(ii)(a) stated that when determining physical or anatomical impairment, neither a physician, another medical provider, an administrative law judge, the Workers Compensation Commission, nor the courts may consider complaints of pain. There is no question that Dr. Mullins used the claimant s complaints of pain to form his opinion and assess an impairment rating. This matter presents a question of credibility to be determined by the Commission. Clearly, two competing reports have been submitted into evidence. Based on a review of the reports by Dr. Heinzelmann and those of Dr. Mullins, including a review of the considerations that each doctor used to assess the claimant s physical impairment, I find that Dr. Heinzelmann s finding is more credible. Clearly, he treated the claimant for a much longer period of time. Dr. Mullins merely reviewed the claimant s records and administered a short examination some year and a half after the after her release by Dr. Heinzelmann and some three years after the claimant s initial shoulder injury. Having previously stated that I find the reports, treatment, and impairment assessment of Dr. Heinzelman to be more credible, I find that his 7% impairment rating is correct and the claimant is not entitled to any additional impairment rating.

11 G HERMINA OSORNIO -11- The claimant has also asked for reimbursement for medical treatment rendered on April 30, 2012, May 7, 2012 and June 12, A review of the evidence provides that the claimant was treated on April 30 and May 7, 2012 by her personal physician for blood pressure issues. While the claimant s high blood pressure was revealed in preparation for the claimant s shoulder surgery the claimant has a history of high blood pressure. The treatment of the condition is not related to or caused by the compensable shoulder injury. Furthermore, the June 12, 2012 visit to Dr. Gathright, her personal physician, while related to a complaint of shoulder pain, was not authorized. I find that the claimant is not entitled to reimbursement for the above requested medical treatment. FINDINGS OF FACT AND CONCLUSIONS OF LAW 1. The claimant has not proven by a preponderance of the evidence that she sustained compensable injuries to her right elbow, right forearm, neck, and upper back on September 28, She has not submitted objective medical findings to support a finding the she suffered compensable injuries to these areas. 2. Having found that the claimant did not suffer compensable injuries to her right elbow, right forearm, neck, and upper back, the issue of medical treatment for those areas is moot. Having found that there are no credible recommendations for treatment for the claimant s right shoulder injury, I find that she is not entitled to any additional medical treatment. 3. Having found that the claimant did not suffer compensable injuries to her right elbow, right forearm, neck, and back the issue of PPD for those injuries is moot. I find the 7% impairment rating and assessment of MMI provided by Dr. Heinzelmann and related to the claimant s admittedly compensable right shoulder injury to be credible.

12 G HERMINA OSORNIO -12- Therefore, I find that the claimant is not entitled to any additional amount of PPD for her right shoulder injury. 4. I find that the claimant is not entitled to reimbursement for medical treatment provided on April 30, 2012 and May 7, The treatment provided on those dates was not related to or caused by the claimant s admittedly compensable right shoulder injury. Furthermore, the claimant is not entitled to reimbursement for treatment rendered on June 12, 2012 by Dr. Gathright, as it was unauthorized. 5. Based on the above findings, the claimant s attorney is not entitled to an attorney s fee. ORDER Based on the above findings and conclusions I have no choice but to deny and dismiss this claim in its entirety. IT IS SO ORDERED. AMY GRIMES ADMINISTRATIVE LAW JUDGE