BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. F BECKY SHULL, EMPLOYEE LAKE VILLAGE HEALTH CARE CENTER, EMPLOYER RESPONDENT #1

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1 BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. F BECKY SHULL, EMPLOYEE CLAIMANT LAKE VILLAGE HEALTH CARE CENTER, EMPLOYER RESPONDENT #1 AIG CLAIMS, INC., INSURANCE CARRIER RESPONDENT #1 DEATH & PERMANENT TOTAL DISABILITY TRUST FUND RESPONDENT #2 OPINION FILED JUNE 1, 2017 Hearing before Administrative Law Judge Elizabeth W. Hogan on March 23, 2017, in Hamburg, Ashley County, Arkansas. Claimant represented by Mr. Billy J. Hubbell, Attorney at Law, Crossett, Arkansas. Respondents #1 represented by Ms. Melissa Wood, Attorney at Law, Little Rock, Arkansas. Respondents #2 represented by Mr. David Pake, Attorney at Law, Little Rock, Arkansas. ISSUES A hearing was conducted to determine the claimant s entitlement to payment of rehabilitation expenses, permanent partial disability benefits, and attorney s fees. At issue is whether or not the claimant is entitled to permanent and total disability, pursuant to Ark. Code Ann , Ark. Code Ann , Ark. Code Ann , Ark. Code Ann , Ark. Code Ann (4)(7)(ii)(a), and Fund liability, Rule 28. After reviewing the evidence impartially, without giving benefit of the doubt to either party, Ark. Code Ann , I find the evidence does not preponderate in favor of the claimant. STATEMENT OF THE CASE The parties stipulated to an employee-employer-carrier relationship on June 9, 2007, at which time the claimant sustained a compensable scheduled injury at a compensation rate of $179.00/$ Medical expenses and temporary total

2 -2- disability benefits were paid until the end of the healing period on August 27, Dr. Martin assessed a fifty percent (50%) impairment rating which Respondents #1 accepted. The claimant contends she is permanently and totally disabled and entitled to ongoing medical treatment. Respondents #1 contend all appropriate benefits have been paid. The claimant cannot meet her burden of proving permanent disability. Respondent #2 defers to the outcome of litigation. The following were submitted without objection and comprise the evidence of record: the parties prehearing questionnaires and exhibits contained in the transcript. The claimant was the only witness to testify at the hearing. At times she was emotionally distraught during her testimony as well as agitated. The claimant, age 61 (D.O.B. January 5, 1956), has a high school education and vo-tech training as a CNA. She has worked as a first responder, hair dresser, assistant manager at Safeway, pharmacy technician, and with a stereo speaker company. Her highest salary was her job at Safeway, $20.00 per hour, but she was earning $9.15 per hour with the respondent employer. She has not worked since 2009 and she has not looked for work. She receives Social Security Disability benefits (since 2009) of $1, monthly, which is more than her salary with the respondent employer. Her health history includes chronic back pain, restless leg syndrome, sciatica, depression, and anxiety. In 2000, she had a left partial knee replacement. The claimant began work for the respondent employer in She had worked one and one-half (1½) days before she injured her right knee when she slipped in water and fell. She required surgery with Dr. Ken Martin in The

3 -3- claimant continued to experience symptoms (grinding, locking, popping) necessitating a second right knee surgery which the claimant did not find beneficial. The claimant stated that she requires medication (anti-inflammatories and pain pills) in order to function. The claimant returned to work part-time for one and one-half months (1½), working in the medical records department. As she was on crutches, she was unable to lift heavy files. The claimant voluntarily left the respondent employer s employ. She felt she was physically unable to work despite the fact that she has no work restrictions. She said she used to attend church four (4) times a week, but now she is only able to go twice a week. Prolonged sitting makes her knee stiff. She is still able to perform house cleaning with assistance, but she is unable to garden or lift her grandchildren. She worries about her knee locking up and falling but she did not have a walking device with her at the hearing. The claimant did say she is able to operate a cash register, answer phones, or assist in a pharmacy. Since she has good days and bad days, she does not think she could consistently work a forty (40) hour week. MEDICAL EVIDENCE The claimant came under the care of Dr. Ken Martin in 2008, who performed a total right knee replacement. She remained symptomatic with popping, locking, swelling, and instability in the right knee, causing her to fall. The claimant reported a fall in 2013, striking her right knee against her bathtub. A second surgery was performed on January 14, She continued to report pain and difficulty walking but withdrew from physical therapy: Patient stated that work (sic) compensation would not pay past 12 visits, thus she did not go to any more treatments. She stated that she was in the midst of a lawsuit and would continue to be non-compliant as this is something that should have been paid for. (Note: the

4 -4- claimant did not request a hearing until 2016 and did not use Medicare to obtain treatment).... If arthofibrosis returns, she will likely not be a surgical candidate as we may not insure compliance with full treatment and recovery. (Dr. Martin s report of April 9, 2014). The claimant continued to complain of pain and Dr. Martin diagnosed pes bursitis and IT band tendinitis. X-rays showed a stable total knee replacement on the right knee and partial knee replacement on the left knee. Dr. Martin released the claimant on February 20, 2014, to activity as tolerated but also noted an off work status. On June 25, 2014, the claimant s work status was designated as full duty. On August 27, 2014, Dr. Martin stated she had reached maximum medical improvement but noted an off work status. She was encouraged to continue home exercises. Although she complained of chronic pain, Dr. Martin commented that additional surgery would not improve her condition. The claimant relies on her family physician to prescribe numerous medications. These records seem to focus on her chronic back pain and sciatica rather than knee pain. The claimant reported that her back pain interfered with her activities of daily living. Her testimony that her back had been asymptomatic since injections in 2014, appears to be at odds with her general practitioner s records. Records in 2016 show back and sciatic pain. She disputed medical records showing she was working or had a bruise right behind her knee. FINDINGS OF FACT AND CONCLUSIONS OF LAW The claimant contends she is permanently and totally disabled based on a scheduled knee injury. She has an impairment rating for a total knee replacement but no work restrictions. The claimant voluntarily left the respondent s employ.

5 -5- Wage loss is the degree to which the compensable injury has affected the claimant s earning capacity. The extent of disability is a question of fact for the Commission. Cross v. Crawford County Memorial Hospital, 54 Ark. App. 130, 923 S.W.2d 886 (1996). The Commission is charged with assessing wage loss on a case by case basis. Factors to be considered in assessing wage loss include the claimant s, age, education, work experience, medical evidence and other matters which may reasonably be expected to affect the workers future earning power such as motivation, post-injury income, bone fide job offers, credibility, or voluntary termination. Glass v. Edens, 233 Ark. 786, 346 S.W.2d 685 (1961); City of Fayetteville v. Guess, 10 Ark. App. 313, 663 S.W.2d 946 (1984); Curry v. Franklin Electric, 32 Ark. App. 168, 798 S.W.2d 130 (1990); Oller v. Champion Parts Rebuilders, 5 Ark. App. 307, 635 S.W.2d 276 (1982); and Hope School District v. Charles Wilson, 2011 Ark. App. 219, S.W.3d (2011). The award of wageloss is not a mathematical formula but a judicial determination based on the Commission s knowledge of industrial demands, limitations, and requirements, Henson v. General Electric, 99 Ark. App. 129, 257 S.W.3d 908 (2008). Permanent total disability is defined as the inability, because of a compensable injury or occupations disease, to earn any meaningful wages in the same or other employment. The burden of proof is on the claimant to prove an inability to earn any meanignful wage in the same or other employment, Ark. Code Ann (e)(1) and (2). The claimant has a high school diploma and managerial experience. She voluntarily left her employ, has not looked for work elsewhere, and has no work restrictions. Therefore, I find the claimant is not permanently and totally disabled. Absent a finding of total disability, the claimant s knee injury is considered a scheduled injury, and she is not eligible to receive permanent partial disability benefits, Ark. Code Ann (b), Ark. Code Ann (g), Maxey v.

6 -6- Tyson Foods, Inc., 66 Ark. App. 301, 991 S.W.2d 624 (1999), Hill v. White Rogers, 10 Ark. App. 402, 665 S.W.2d 292 (1984). Ark. Code Ann (b): Employee(s) suffering a scheduled injury shall not be entitled to permanent partial disability benefits in excess of the percentage of permanent physical impairment set forth above except as otherwise provided in Ark. Code Ann (b). 1. The Workers Compensation Commission has jurisdiction of this claim in which the employee-employer-carrier relationship existed on June 9, 2007, at which time the claimant sustained a compensable scheduled injury at a compensation rate of $179.00/$ Medical expenses and temporary total disability benefits were paid until the end of the healing period on August 27, Dr. Martin assessed a fifty percent (50%) impairment rating which Respondents #1 accepted. 2. If they have not already done so, the respondents are directed to pay the court reporter, Celia Jamison s, fees and expenses within thirty (30) days of receipt of the bill. This claim is respectfully denied and dismissed. IT IS SO ORDERED. ELIZABETH W. HOGAN Administrative Law Judge