BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. G DAVID ROEBKE, Employee. CITY OF WEST FORK, Employer

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1 BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. G DAVID ROEBKE, Employee CITY OF WEST FORK, Employer MUNICIPAL LEAGUE WCT, Carrier CLAIMANT RESPONDENT RESPONDENT OPINION FILED MARCH 9, 2015 Hearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Springdale, Washington County, Arkansas. Claimant represented by ROXANNE BLAKE, Attorney, Rogers, Arkansas. Respondents represented by J. CHRIS BRADLEY, Attorney, North Little Rock, Arkansas. STATEMENT OF THE CASE On February 4, 2015, the above captioned claim came on for a hearing at Springdale, Arkansas. A pre-hearing conference was conducted on December 11, 2014, and a pre-hearing order was filed on that same date. A copy of the pre-hearing order has been marked Commission's Exhibit #1 and made a part of the record without objection. At the pre-hearing conference the parties agreed to the following stipulations: 1. The Arkansas Workers Compensation Commission has jurisdiction of the within claim. 2. The employee/employer/carrier relationship existed among the parties on April 9, The claimant sustained a compensable injury to his right shoulder on April 9, The claimant was earning an average weekly wage of $ which would entitle him to compensation at the weekly rates of $ for total disability benefits and $ for permanent partial disability benefits. At the pre-hearing conference the parties agreed to litigate the following issues:

2 2 1. Permanent partial disability benefits based on an impairment rating. 2. Attorney fee. At the time of the hearing the parties also agreed to litigate claimant s entitlement to permanent partial disability benefits based upon wage loss. The claimant contends that he is entitled to permanent partial disability benefits based on permanent physical impairment and wage loss resulting from his compensable shoulder injury. He contends his attorney is entitled to a fee on permanent benefits awarded. The respondents contend they are not aware of an impairment rating and that claimant is not entitled to benefits on account of an anatomical impairment or wage loss. From a review of the record as a whole, to include medical reports, documents, and other matters properly before the Commission, and having had an opportunity to hear the testimony of the witnesses and to observe their demeanor, the following findings of fact and conclusions of law are made in accordance with A.C.A : FINDINGS OF FACT & CONCLUSIONS OF LAW 1. The stipulations agreed to by the parties at the pre-hearing conference conducted on December 11, 2014, and contained in a pre-hearing order filed that same date, are hereby accepted as fact. 2. Claimant has failed to prove by a preponderance of the evidence that he is entitled to any permanent partial disability benefits as a result of his compensable right shoulder injury. FACTUAL BACKGROUND The claimant is a 40-year-old man who began working for the respondent in September 2010 as its Parks and Recreation Director and was responsible for the day to day operations of the parks and recreation department. In addition, claimant also testified

3 3 that he performed other physical jobs for the respondent such as helping the city maintenance crew hang Christmas lights, helping clear brush and debris, and other similar type jobs. On April 9, 2014, the claimant was in a lift basket approximately 14 or 15 feet off the ground placing an announcement on the city marquee when there was an equipment failure and the lift fell to the ground. After this fall claimant was taken by ambulance to Washington Regional Medical Center where he had various complaints including mild neck pain, moderate back pain, and arm pain. CT scans of the claimant s head, cervical spine, and chest all returned negative. The parties have stipulated that claimant suffered a compensable injury to his right shoulder as a result of the accident on April 9, After his initial medical treatment at Washington Regional Medical Center, claimant was referred by respondent to Dr. Berestnev for treatment. Dr. Berestnev first evaluated the claimant on April 14, 2014 at which time he gave claimant an injection and ordered an MRI scan of the right shoulder. When the MRI scan revealed multiple abnormalities, Dr. Berestnev referred claimant to an orthopaedist for further treatment. On May 19, 2014, claimant was evaluated by Dr. Benafield, orthopaedic surgeon, who diagnosed claimant s condition as a partial thickness tear of his right shoulder with possible biceps tendon tear and shoulder impingement. Dr. Benafield initially treated claimant conservatively with an injection, home exercises, and limited duty with no use of his right arm. Claimant returned to Dr. Benafield on June 23, 2014, at which time Dr. Benafield noted that claimant had received minimal improvement with the injection. Dr. Benafield went on to indicate that it was reasonable to consider surgical procedures and he indicated that surgery would be scheduled pending approval by the workers compensation carrier. Dr. Benafield performed surgery on the claimant s right shoulder on June 30, The procedure was an arthroscopic procedure with a distal clavicle excision and

4 4 subacromial decompression. Dr. Benafield s operative report notes that claimant s rotator cuff was intact, but claimant did have impingement and AC joint arthrosis. Following claimant s surgery he returned to Dr. Benafield on July 10, 2014 and Dr. Benafield noted that claimant had minimal complaints with a fairly good range of motion. He referred claimant to physical therapy and indicated that claimant could return to work with no use of his right arm for one month. Claimant s next visit with Dr. Benafield occurred on August 18, 2014, at which time claimant had an excellent range of motion, but he noted that claimant still had some soreness and was still lacking in strength. As a result, Dr. Benafield sent claimant for additional physical therapy in the form of a strengthening program. He also stated that he expected to release claimant to full duty when he returned the next month. Claimant s next visit with Dr. Benafield occurred on September 17, At that time, Dr. Benafield noted that claimant s range of motion was good but that he still had soreness and that while his strength was improving it was slow. Dr. Benafield indicated that he would release claimant to return to work without restrictions at that time. Claimant s last visit with Dr. Benafield occurred on October 10, Dr. Benafield noted that claimant s current examination revealed a full range of motion. He opined that claimant had reached maximum medical improvement and stated that claimant had no permanent impairment. He also released claimant from his care to return to full duty. Claimant has filed this claim contending that he is entitled to permanent partial disability benefits as a result of his compensable right shoulder injury. Claimant contends that he is entitled to an impairment rating as well as wage loss resulting from his compensable injury. ADJUDICATION Claimant contends that he is entitled to permanent partial disability benefits as a

5 5 result of his compensable right shoulder injury. Claimant contends that he is entitled to an impairment rating as well as benefits for wage loss resulting from his compensable injury. Permanent impairment is any permanent functional or anatomical loss remaining after the healing period has been reached. Johnson v. General Dynamics, 46 Ark. App. 188, 878 S.W. 2d 411 (1994). The Commission has adopted the AMA Guides to the Evaluation of Permanent Impairment (4 th Edition) which is to be used in assessing anatomical impairment. See Commission Rule ; A.C.A (g). Any determination of the existence or the extent of permanent impairment must be supported by objective and measurable physical findings. A.C.A (c)(1)(B). Objective findings are those findings which cannot come under the voluntary control of the patient. A.C.A (16)(A)(i). In this particular case, claimant testified that he continues to suffer from residual pain as well as a loss of strength and mobility. Claimant testified at the hearing that he can no longer perform many daily functions such as sporting activities. Claimant also testified that he can no longer perform overhead lifting and that even stirring food in a pot causes pain in his shoulder. First, with respect to complaints of pain, I note that the Commission may not consider complaints of pain in determining physical or anatomical impairment. A.C.A (16)(A)(ii)(a) states: When determining physical or anatomical impairment, neither a physician, any other medical provider, an administrative law judge, the Workers Compensation Commission, nor the courts may consider complaints of pain. Thus, the Commission by law is prohibited from considering claimant s complaints of pain in assessing permanent impairment. Claimant also testified that he lacks mobility in his right shoulder. However, in his report of October 10, 2014, Dr. Benafield noted that claimant s exam revealed a full range of motion.

6 6 Finally, claimant testified that he lacks strength in his right shoulder to perform ordinary daily functions. However, in order to assess an impairment rating based upon a lack of strength, there must be some objective measurable physical findings in order to support an impairment rating. Here, there are insufficient objective measurable physical findings in the record supporting a finding of permanent impairment. Here, claimant underwent surgery on his right shoulder which was performed by Dr. Benafield. After that surgical procedure Dr. Benafield evaluated the claimant on several occasions and based upon those examinations released claimant as having reached maximum medical improvement as of October 10, Dr. Benafield in that same report noted that claimant had no permanent impairment. Based upon the opinion of Dr. Benafield, which I find to be credible and entitled to great weight, I find that claimant has failed to prove that he suffered a permanent impairment under the Arkansas Workers Compensation law. Although the Commission may use the guides in assessing its own impairment rating, I find insufficient credible evidence which would support an impairment rating under the facts of this case. I also decline claimant s request to refer him to another physician for the purpose of assigning an impairment rating. Since claimant s treating physicians in this case were chosen by the respondent, claimant had the right to file a petition with the Commission requesting a change of physicians. Claimant did not do so and I believe that there is sufficient evidence of record to address this issue without a referral for an evaluation. As previously noted, the parties also agreed to litigate claimant s entitlement to benefits for wage loss resulting from his compensable injury. In order to be entitled to any wage loss disability benefits in excess of the permanent physical impairment, a claimant must first prove by a preponderance of the evidence that he sustained permanent physical impairment as a result of his compensable injury. Wal-Mart Stores, Inc. v. Connell, 340

7 7 Ark. 475, 10 S.W. 3d 891 (2000). Having found that claimant has failed to prove that he suffered any permanent physical impairment as a result of his compensable injury, claimant is not entitled to any wage loss benefits. Finally, it should be noted that at the hearing there was some discussion regarding a potential overpayment of benefits. Respondent s entitlement to a credit for overpayment of benefits was not raised as an issue and is not being addressed in this opinion. ORDER Claimant has failed to prove by a preponderance of the evidence that he is entitled to any permanent partial disability benefits as a result of his compensable injury. Therefore, his claim for compensation benefits is hereby denied and dismissed. IT IS SO ORDERED. GREGORY K. STEWART ADMINISTRATIVE LAW JUDGE