BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. G RONNIE CARTER, Employee. TYSON FOODS, INC., Self-Insured Employer RESPONDENT #1

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1 BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. G RONNIE CARTER, Employee CLAIMANT TYSON FOODS, INC., Self-Insured Employer RESPONDENT #1 DEATH & PERMANENT TOTAL DISABILITY TRUST FUND RESPONDENT #2 OPINION FILED APRIL 13, 2016 Hearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Springdale, Washington County, Arkansas. Claimant represented by EVELYN E. BROOKS, Attorney, Fayetteville, Arkansas. Respondent #1 represented by J. MATTHEW MAULDIN, Attorney, Little Rock, Arkansas. Respondent #2 represented by DAVID L. PAKE, Attorney, Little Rock, Arkansas; although not participating in hearing. STATEMENT OF THE CASE On March 16, 2016, the above captioned claim came on for a hearing at Springdale, Arkansas. A pre-hearing conference was conducted on January 25, 2016, and a prehearing 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 relationship existed between claimant and respondent #1 on May 21, The claimant sustained a compensable injury to his cervical spine on May 21, The claimant was earning an average weekly wage of $ which would entitle him to the maximum compensation rates of $ for total disability and $ for permanent partial disability benefits.

2 2 5. The claimant reached maximum medical improvement on March 17, At the time of the hearing the parties clarified that claimant s compensable injury was to both his cervical spine and right shoulder. At the pre-hearing conference the parties agreed to litigate the following issues: 1. Extent of permanent disability, including impairment rating and wage loss. 2. Attorney fee on the rating and any permanent benefits. The claimant contends he is entitled to receive a permanent impairment rating for his compensable injury. He also contends that he is entitled to permanent and total disability benefits, and that his attorney is entitled to receive an attorney fee for the permanent impairment rating and any additional permanent disability awarded. Claimant reserves all other issues. Respondent #1 contends that Dr. Wahlig refused to assign an impairment rating despite the request of Respondent #1. However, respondent #1 has voluntarily paid permanent partial disability benefits to claimant currently totaling $21, (through 1/28/16). Respondent #1 contends that no attorney s fees are owed on permanent partial disability benefits voluntarily paid to date. If claimant s attorney is awarded an attorney s fee on PPD benefits paid to date, additional attorney s fees totaling $1, were paid to claimant s attorney following claimant s reaching maximum medical improvement on March 17, 2015, and such fees should be applied toward any future award of attorney s fees. Respondent #1 contends claimant is not entitled to permanent total disability. The Trust Fund defers to litigation on the permanent total disability/wage loss issue. The Trust Fund has not controverted benefits. 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 witness and to observe his demeanor, the following findings of fact and conclusions of law are made in accordance with A.C.A :

3 3 FINDINGS OF FACT & CONCLUSIONS OF LAW 1. The stipulations agreed to by the parties at the pre-hearing conference conducted on January 25, 2016, and contained in a pre-hearing order filed that same date, are hereby accepted as fact. 2. The parties stipulation that claimant s injury also included an injury to his right shoulder is also hereby accepted as fact. 3. Claimant has failed to prove by a preponderance of the evidence that he is permanently totally disabled as a result of his compensable injury. Claimant has met his burden of proving by a preponderance of the evidence that he is entitled to permanent partial disability benefits in an amount equal to 35% to the body as a whole. This includes anatomical impairment ratings of 15% to the body as a whole and wage loss in an amount equal to 20% to the body as a whole. 4. Respondent is entitled to a credit for all permanent partial disability benefits previously paid to the claimant. 5. Respondent has controverted claimant s entitlement to all permanent partial disability benefits; including, those for which it is entitled to a credit. FACTUAL BACKGROUND The claimant is a 69-year-old high school graduate who attended embalmment school and was one credit shy of graduating with a business degree from New Mexico State University. Claimant testified that he served in the United States Navy and was a prisoner of war in Vietnam for 268 days. At the hearing respondent disputed claimant s testimony and offered some documentary evidence in support of its contention that claimant was not a prisoner of war. This documentary evidence was not provided to the claimant seven days prior to the hearing and following an objection by the claimant, it was excluded from the record. Respondent has proffered that documentation into the record.

4 4 The claimant began working for respondent as a truck driver in October On May 21, 2013, claimant was driving his truck in Fort Smith and it was raining. Claimant testified that his wiper blades were not working properly and as a result he attempted to replace them. Claimant testified that he was standing with one foot on his front tire and his other foot on the rail attempting to change the wiper blade on the driver s side of the truck when he slipped and fell. Claimant testified that his right shoulder, neck, and mid back struck the ground during the fall. Claimant notified respondent of his injury and was instructed to return to Springdale if he needed to see a physician. Claimant did so and was evaluated by Dr. Moffitt that same day. Dr. Moffitt diagnosed claimant as suffering from a contusion of the upper back and a contusion/strain of the right shoulder. Dr. Moffitt released claimant to return to work at full duties and instructed him to use ice and over-thecounter medications as needed. Claimant returned to Dr. Moffitt on June 3, 2013, with complaints of continued pain in his upper back into his right shoulder. Dr. Moffitt ordered an MRI scan of the claimant s right shoulder, prescribed medication, and restricted claimant from working above chest level. After this visit to Dr. Moffitt claimant returned to his home in Maine and treated with physicians in Maine including Susan Cruz, a nurse practitioner in Waterville, Maine. Cruz diagnosed claimant s condition as right shoulder, thoracic, and cervical contusion and sprain. She referred claimant to physical therapy and recommended moist heat, stretching exercises, and medication. In addition to seeing Cruz, claimant also was evaluated by Dr. Mancini for his right shoulder injury. According to the medical records Dr. Mancini ordered an injection and physical therapy. In a report dated September 10, 2013, Dr. Mancini indicated that claimant had a resolving impingement of his right shoulder, but noted that he continued to have myofascitis of the right upper extremity. He recommended that claimant be referred to physiatry for further evaluation.

5 5 Medical records indicate that claimant underwent various treatments for his compensable injury including medication, physical therapy, and a TENS unit. Eventually, claimant underwent an MRI scan on his cervical spine which according to Dr. Giunti in a report dated November 18, 2013 revealed a small herniation at the C5-6 level. Following this MRI scan claimant came under the care of Dr. Pavlak, neurosurgeon, for his work-related injury. Dr. Pavlak treated claimant with medication and in a report dated May 22, 2014 indicated that he and claimant agreed to discontinue medications due to its lack of effect on the claimant s symptoms. Dr. Pavlak went on to indicate that claimant was at the point where he would hold off on any further treatment other than the occasional palliative treatment such as a massager or trigger point injection. Dr. Pavlak noted that there was probably not anything else that could be done for claimant that was curative and indicated that claimant had reached maximum medical improvement. He discharged claimant from his care and instructed him to return as needed. After this release by Dr. Pavlak claimant continued to seek medical treatment from his family physician, Dr. Irving. In a report dated July 8, 2014, Dr. Irving referred claimant to the Maine Spine Institute for ongoing neck, back, and shoulder pain which up until that point had been unresponsive to treatment. Claimant was initially evaluated by Elizabeth Anderson, a physician s assistant in Dr. Wahlig s office. Anderson noted that claimant s MRI scan revealed a small disc bulge at the C5-6 level. She diagnosed claimant s condition as cervical spondylosis and neck pain. In addition, she ordered a CT myelogram which was performed on July 14, That myelogram confirmed a central disc herniation at the C5-6 level. Based upon those findings, Dr. Wahlig performed a fusion procedure at the C5-6 level on August 7, In a report dated September 17, 2014, Dr. Wahlig indicated that claimant could increase his activity as tolerated without restriction. Finally, in a report dated March 17, 2015, Dr. Wahlig indicated that imaging showed a stable fusion at the C5-6 level. Dr.

6 6 Wahlig went on to indicate that he did not believe claimant would have any functional improvement in his right upper extremity strength and stated that claimant had reached maximum medical improvement. The parties have stipulated that claimant reached maximum medical improvement for his compensable injury as of March 17, Since Dr. Wahlig s March 17, 2015 opinion stating that claimant had reached maximum medical improvement, claimant has continued to receive treatment from various physicians for various ailments which are unrelated to his compensable injury. Following his release of the claimant, Dr. Wahlig did not assign claimant an impairment rating and even though he was asked by respondent to assign an impairment rating, Dr. Wahlig indicated that he had no experience in assigning disability ratings and recommended that claimant be evaluated by a disability specialist. Even though claimant was not assigned an impairment rating, respondent nevertheless paid claimant permanent partial disability benefits. At the hearing respondent indicated that those benefits totaled $21, and that they were paid through January 28, Claimant s attorney indicated that she could not confirm the amounts paid, but admitted that respondent had paid some permanent partial disability benefits. Claimant has filed this claim contending that he is entitled to permanent total disability benefits as a result of his compensable injury. Claimant also contends that his attorney is entitled to a fee on any rating and any permanent disability benefits awarded. ADJUDICATION Claimant contends that he is permanently totally disabled as a result of his compensable injury. Permanent total disability is defined at A.C.A (e)(1) as: The inability, because of compensable injury or occupational disease, to earn any meaningful wages in the same or other employment.

7 7 Furthermore, claimant has the burden of proving by a preponderance of the evidence that he has the inability to earn any meaningful wage in the same or other employment. A.C.A (e)(2). In assessing the extent of disability, the Commission may take into account various factors. These factors include the percentage of permanent impairment as well as the claimant s age, education, work experience, and any other matters reasonably expected to affect his future earning capacity. A.C.A (b)(1). After reviewing the evidence in this case impartially, without giving the benefit of the doubt to either party, I find that claimant has failed to meet his burden of proving by a preponderance of the evidence that he is permanently totally disabled. Instead, after my review of the relevant wage loss factors and the claimant s permanent anatomical impairment, I find that claimant is entitled to permanent partial disability benefits in an amount equal to 35% to the body as a whole. This includes a 15% anatomical impairment as well as a loss in wage earning capacity in an amount equal to 20% to the body as a whole. The first issue for consideration involves the claimant s permanent anatomical impairment ratings. As previously noted, Dr. Wahlig refused to assign the claimant a permanent physical impairment rating. One of the physicians claimant has seen following his release by Dr. Wahlig is Dr. Guernelli, a physiatrist and pain management specialist. In a letter dated March 8, 2016, Dr. Guernelli assigned the claimant a permanent physical impairment rating equaling 19% to the body as a whole. Dr. Guernelli based this on a 15% rating for claimant s cervical thoracic spine combined with a 5% rating attributable to claimant s right shoulder. In assigning the 15% rating for claimant s cervical thoracic spine, Dr. Guernelli relied upon the DRE cervical thoracic category III portion of the 4 th Edition of the AMA Guides. It does not appear that that portion of the AMA Guides takes into account surgery as it taken into account in Table 75 of the Fourth Edition of the AMA

8 8 Guides. Table 75 assigns whole person impairment percentages due to specific spine disorders. With respect to cervical spine injuries, Section 2 assigns a 9% impairment rating for a cervical spine injury which was surgically treated with residual/medically documented pain and rigidity. That section also assigns an additional 1% for other levels. In this particular case, claimant s fusion surgery affected two levels, C5 and C6. I find that Table 75 is more appropriate for assigning an impairment rating in this case since it specifically takes into account claimant s surgically treated discs. Accordingly, I find based upon Table 75 of the Fourth Edition of the AMA Guides that claimant is entitled to a permanent anatomical impairment rating in an amount equal to 10% for his cervical spine injury. I also note that Dr. Guernelli also assigned the claimant a 5% impairment rating to his right shoulder for his compensable injury based upon the 4 th Edition of the AMA Guides. The fact that claimant suffers from permanent disability in his right shoulder is corroborated by the medical report of Dr. Wahlig dated March 17, In that report, Dr. Wahlig noted that claimant suffered from persistent right upper extremity shoulder pain and he also stated that he did not predict any functional improvement in the claimant s right upper extremity strength. As previously noted, Dr. Wahlig went on to indicate that claimant had reached maximum medical improvement. Based upon the opinion of Dr. Wahlig in his report of March 17, 2015, as well as Dr. Guernelli s opinion in the March 8, 2016 letter, I find that claimant s anatomical impairment for his compensable right shoulder injury equals 5% to the body as a whole. Accordingly, I find that claimant s permanent anatomical impairments equal 15% to the body as a whole for his compensable cervical spine injury and right shoulder injury. Turning to the relevant wage loss factors, I note that claimant is 69 years old. Claimant is a high school graduate and he attended embalmment school. In addition, claimant was one credit shy of graduating with a business degree from New Mexico State University. According to claimant s testimony, he had a GPA of 4.0 when he withdrew from

9 9 school due to a death in the family. Claimant testified that he used some of his knowledge from business when he owned his own trucking company from 1980 through Claimant testified that when he had the trucking company he had at least four trucks running. Claimant testified that his prior jobs have primarily consisted of mortician work and work as a truck driver. Claimant has not worked as a mortician since Claimant contends that he currently suffers from muscle spasms in his right shoulder and mid back next to his rib cage and in his neck. In addition, claimant testified that his right arm is weak and that if he engages in any physical activity such as raking the lawn he can only do it for five minutes before he has to sit down because of pain. Claimant acknowledged that the only medication he is currently taking for his work-related injury is Advil and Ibuprofen. Claimant testified that the only thing limiting him from working is the injury he suffered while working for the respondent. However, the medical records indicate that following claimant s compensable injury and his cervical fusion he has been treated for a number of other conditions not related to his work-related injury. Initially, with respect to this issue, I find claimant s testimony to be somewhat less than credible. Claimant s deposition was taken by respondent on February 24, At that time, claimant was asked about other ailments or health conditions after his cervical fusion surgery on August 7, In prefacing these questions, respondent s attorney specifically stated: Let s talk about what s going on with you medically other than just this work-related injury. Claimant went on to testify that since the cervical fusion surgery he had not received any medical treatment for any conditions other than something like a cold and he specifically denied any other surgeries or migraine headaches.

10 10 Q. Have you treated for any other ailments or health conditions since your fusion surgery? A. A cold, no. Q. All right. Can you say that again, Mr. Carter? A. Probably a cold or something like that, no. Q. Okay. So colds are the only kind of treatments that you ve had? Or treatment for colds is the only think you ve had? A. All I can remember. Q. Okay. Well, you had the - - excuse me - - the cervical fusion in August Have you had any other surgeries since then on any body part? A. No. Q. Did you say no? A. No. Q. Okay. I tell you what. I know what you mean, Mr. Carter, but just so we have a clear transcript, I asked you if you ve had any other surgeries on any body part since your fusion surgery in August of 2014, and your answer is no, you have not; correct? A. Correct. Q. Well, Mr. Carter, since your fusion surgery in August of 2014, are you - - is it your testimony that the only reason you had medical treatment or gone to the doctor or had any complaints is either due with your neck, right shoulder, mid back, or for treatment for colds? *** A. That s what I can remember, yes. Q. What I wanted to ask you about is that was - - you had to have that surgery because you were having terrible migraine headaches at the time. Have you had any other migraines or any other headaches since that time? ***

11 11 A. No. Q. Well, other than Dr. Wahlig, Dr. Guernelli, and Dr. Irving, is there any other doctors that you ve seen for any reason since your August 2014 fusion surgery, or is that it? A. No. That s it. *** In reality, the medical records indicate that claimant has received treatment for various non-work related medical conditions since his cervical fusion surgery in August For instance, on April 2, 2015, claimant sought medical treatment from Dr. Omsberg, a neurosurgeon. Claimant presented to Dr. Omsberg with complaints of back and leg pain with symptoms having begun five months ago. Following failed treatment of medication and physical therapy, Dr. Omsberg performed surgery at the L3-4 level on April 22, Despite this treatment, claimant had denied that he had undergone any surgeries or that he had received treatment for anything other than colds following his cervical spine surgery. In addition, the medical records indicate that claimant has suffered from severe gastrointestinal problems. Medical records from Dr. Irving, claimant s family physician, dated March 4, 2015 indicate that claimant was seen in the emergency room on February 23, 2015 for vomiting and diarrhea. Dr. Irving indicates that claimant suffers from explosive diarrhea some eight to ten times a day which results in him being lightheaded and dizzy. In a report dated March 11, 2015, Dr. Irving noted that claimant was still having eight to ten loose stools per day and referred him to a gastroenterologist, Dr. Henry. Dr. Irving further noted that claimant s diarrhea was incapacitating. A report from Dr. Irving dated March 24, 2015 indicates that claimant was having diarrhea 10 to 14 times per day and that he had undergone a colonoscopy with biopsies. Dr. Irving s subsequent medical records indicate that claimant continued to have

12 12 complaints involving diarrhea in reports dated July 10, 2015; August 13, 2015; January 7, 2016; January 15, 2016; February 2, 2016; and March 3, In fact, the report of January 7, 2016 indicates that claimant was having profuse diarrhea 20 to 30 times daily for the last month. He advised claimant to go to the emergency room for hydration, lab work and stool study, but claimant refused. Dr. Irving s report of February 2, 2016 indicates that claimant still suffers from diarrhea and his report of March 3, 2016 indicates that claimant s stool study was positive and that the recent biopsy in February showed an underlying collagenous colitis. In response to why he did not report these complaints of diarrhea, claimant contended that he did not consider it as a health condition because everybody suffers from diarrhea. However, it is clear from a review of the medical records that claimant was suffering from more than simple diarrhea. Significantly, claimant also denied at his deposition that he had fallen since his cervical spine surgery. However, Dr. Irving s report of June 25, 2015 indicates that claimant was reporting complaints of shaking and tremors all over his body and that three days ago his right foot began flopping when he walked and now he was unable to flex his foot. Thereafter, in a report dated July 10, 2015, Dr. Irving stated: His main issue is his frequent falls. Over the past several weeks, he has fallen several times. His right foot will catch and drag and he will fall. He complains of inability to lift his right foot. Dr. Irving referred claimant to Dr. Omsberg for his opinion on claimant s foot drop. In a report dated July 13, 2015, Dr. Omsberg diagnosed claimant s condition as perineal neuropathy at the knee. Furthermore, he stated that claimant had fallen several times. The claimant has a history of suffering from migraine headaches which resulted in surgery to decompress an occipital nerve by Dr. Branch on April 26, According to the medical records claimant s headaches dissipated at that time. Claimant testified at his

13 13 deposition that he had not suffered from any migraines or headaches since the surgery in However, the medical records indicate that claimant was seeking medical treatment for headaches just one month prior to his deposition of February 24, The medical records contain a report from Dr. Goodman, neurologist, dated January 18, 2016 in which claimant presented with complaints of headaches and noted that claimant s headaches had returned approximately one and a half months ago. He stated that claimant informed him that the headaches occurred daily in a similar presentation as those he previously suffered. At the hearing, claimant testified that his diarrhea and headaches were due to his blood pressure medication and that once that medication was changed both of those problems disappeared. However, that testimony is not supported by the medical records. The medical records do not indicate that claimant s diarrhea or headaches have resolved. In fact, the most recent medical record is the report of Dr. Irving dated March 3, 2016 which indicates that claimant s stool study from yesterday was positive and that claimant was still bothered by daily headache. In fact, Dr. Irving notes that claimant had recently seen a neurologist for his headaches and his medication was increased. The significance of this evidence is first an indication that claimant was being less than truthful during his deposition testimony when he denied having any surgeries or receiving medical treatment for other conditions other than colds since his cervical spine surgery in August of Claimant s credibility as a witness is particularly important when one considers claimant s testimony that the only reason he is unable to work is his compensable injury. In addition, these reports indicate that claimant suffers from physical conditions which arose after his compensable injury. Claimant testified that he has not looked for employment since his release by Dr. Wahlig. A claimant s lack of interest in employment is an impediment to the Commission s full assessment of a claimant s loss and is a factor to be considered in determining wage

14 14 loss. City of Fayetteville v. Guess, 10 Ark. App. 313, 663 S.W. 2d 946 (1984); Oller v. Champion Parts Rebuilders, 5 Ark. App. 307, 635 S.W. 2d 276 (1982). In addition to assigning impairment ratings in his letter of March 18, 2016, Dr. Guernelli indicated that claimant suffered from various restrictions relating to his neck pain and limited right shoulder motion. Dr. Guernelli indicated that claimant should avoid static neck positions for prolonged periods of time or repetitive neck extension and flexion. Claimant was also limited to lifting/carrying/pushing/pulling more than 15 pounds occasionally and 10 pounds frequently. In addition, claimant s overhead reaching, lifting, and carrying should be avoided. He should also avoid kneeling, squatting, and crawling and engage in minimal bending, crouching, stooping, and twisting. Claimant was also advised to avoid operating heavy machinery or truck driving. Dr. Guernelli went on to indicate that based upon those restrictions it was unlikely that claimant would be able to sustain a full time competitive job given his physical impairments as well as his age, education level, and prior work history. While Dr. Guernelli gave his opinion with regard to claimant s ability to work, there is no indication that Dr. Guernelli is an expert or has any expertise in vocational evaluations with regard to educational level and prior work history. Instead, that is a function for the Commission and I find that Dr. Guernelli s opinion with regard to that issue is entitled to little weight. However, the restrictions imposed by Dr. Guernelli are credible and within his area of expertise and are entitled to great weight. In support of this finding, I note that Dr. Wahlig had indicated in his report of March 17, 2015 that given claimant s right upper extremity dysfunction he would be unable to safely and consistently return to his prior employment as a truck driver. After consideration of all of these relevant wage loss factors, the claimant s testimony, and the medical records, I do not find that claimant is permanently totally disabled as a result of his compensable injury. Instead, I find that claimant has suffered a loss in wage earning capacity in an amount equal to 20% to the body as a whole. While

15 15 Dr. Guernelli placed significant physical restrictions upon the claimant s ability to return to physical work, the claimant is an educated man who is one credit shy of having a business degree. Claimant operated his own business for ten years and I find insufficient evidence indicating that claimant would be incapable of returning to that type of employment. Therefore, based upon the foregoing evidence, I find that claimant is entitled to permanent partial disability benefits in an amount equal to 20% to the body as a whole based upon a loss in wage earning capacity. Accordingly, claimant is entitled to permanent partial disability benefits totaling 35% to the body as a whole. This consists of 15% to the body as a whole for permanent anatomical impairment as well as a wage loss in an amount equal to 20% to the body as a whole. Respondent is entitled to a credit for all permanent disability benefits previously paid to the claimant. Respondent has controverted claimant s entitlement to all unpaid benefits and is liable for an appropriate attorney fee. I also find under the circumstances of this case that respondent likewise controverted claimant s entitlement to all permanent partial disability benefits. Although the respondent voluntarily paid claimant permanent partial disability benefits, respondent had previously controverted claimant s entitlement to additional medical treatment which resulted in a request for a hearing which was scheduled for January 7, Prior to that hearing respondent accepted additional medical treatment and reinstated compensation benefits. However, by denying claimant s entitlement to additional medical treatment, respondent controverted this claim and required claimant to obtain the services of an attorney. Therefore, based upon these circumstances, I find that respondent is liable for a controverted attorney fee on all permanent partial disability benefits. Respondent is entitled to a credit for any attorney fee previously paid.

16 16 AWARD Claimant has failed to prove by a preponderance of the evidence that he is permanently totally disabled as a result of his compensable injury. Claimant is entitled to permanent partial disability benefits in an amount equal to 35% to the body as a whole. This consists of 15% to the body as a whole for permanent anatomical impairment as well as 20% for loss in wage earning capacity. Respondent is liable for an attorney fee on all permanent partial disability benefits. The respondents are ordered to pay the court reporter s charges for preparing the hearing transcript in the amount of $ All sums herein accrued are payable in a lump sum without discount and this award shall bear interest at the maximum legal rate until paid. IT IS SO ORDERED. GREGORY K. STEWART ADMINISTRATIVE LAW JUDGE