BEFORE THE ARKANSAS WORKERS COMPENSATION COMMISSION CLAIM NO. G JEFFREY K. BROWN, EMPLOYEE DELTA CARTAGE, LLC., UNINSURED EMPLOYER

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1 BEFORE THE ARKANSAS WORKERS COMPENSATION COMMISSION CLAIM NO. G JEFFREY K. BROWN, EMPLOYEE DELTA CARTAGE, LLC., UNINSURED EMPLOYER CLAIMANT RESPONDENT OPINION FILED JULY 11, 2016 Hearing before ADMINISTRATIVE LAW JUDGE ANDREW L. BLOOD, on May 13, 2016, at Jonesboro, Craighead County, Arkansas. Claimant represented by the HONORABLE M. SCOTT WILLHITE, Attorney at Law, Jonesboro, Arkansas. Respondent represented by the HONORABLE RICHARD A. REID, Attorney at Law, Blytheville, Arkansas. STATEMENT OF THE CASE A hearing was conducted in the above styled claim to determine the claimant s entitlement to additional workers compensation benefits. On March 30, 2016, a prehearing conference was conducted in the claim, from which a Prehearing Order of the same date was filed. The Prehearing Order reflects stipulations entered by the parties, the issues to be addressed during the course of the hearing, and the contentions of the parties relative to the afore. The claimant does not seek wage loss disability benefits but only permanent impairment. The Prehearing Order is herein designated a part of the record as Commission Exhibit #1. The testimony of Jeffrey K. Brown, coupled with medical reports and other documentary evidence comprise the record in this claim. DISCUSSION Jeffrey K. Brown, the claimant, with a date of birth of December 27, 1968, commenced

2 his employment with respondent as a truck driver in late July/early August On or about December 12, 2013, while within the course and scope of his employment the claimant suffered an injury to his right shoulder. A prior hearing was conducted on the issue of compensability and is now law of the case. The claim was previously controverted in its entirety for purposes of attorney s fees. The testimony of the claimant reflects that he underwent surgery in connection with his compensable December 2013, right shoulder injury in November The claimant has now returned to work as a truck driver and is making more than he earned in the employment of respondent. The claimant maintains that prior to the December 2013, accident he was able to use his right shoulder without any physical limitations. Following his November 2014, right shoulder surgery in the treatment of his compensable injury, and the healing of the scar from the surgery, the claimant testified regarding the residual symptoms he experienced: Well, I ve got some grinding in it, just a little bit of grinding, and if I just move my arm different, certain ways and I m not expecting it, I may use it and it will end up popping every once in a while, so - - (T. 15). The claimant offered that the strength has not completely returned to the arm. The claimant continued regarding the limitations in the range of motion in the right shoulder, which he attributes as residuals of the injury and surgery: Well, if I raise - - I can still raise it up high. I can move it out to the side high and put it behind me, but probably the main thing would be I still have problems with like combing my hair every once in a while. If I go to comb my hair, it kind of irritates it, it will pop. 2

3 I m not even expecting it, it just pops, and it usually gets a little bit sore and it eventually goes away. (T. 16). The testimony of the claimant reflects that he has taken Celebrex for years due to arthritis in his knee. The claimant acknowledged that he had a prior right shoulder injury, which he describes as a slight tear, for which he underwent surgery, before December 2013 right shoulder injury. The claimant denies experiencing any popping or grinding in his right shoulder before the December 13, 2013, accident. In addition to the popping, grinding, and loss of strength, the claimant also noted soreness in the right shoulder with prolonged use, all of which he attributes as residuals of the compensable December 13, 2013, right shoulder injury. The testimony of the claimant reflects that Dr. Stroope performed surgery on the right shoulder in November The claimant testified that he last saw Dr. Stroope on June 2, 2015, at which time he was released from the care of same. The claimant continued regarding his last contact with Dr. Stroope: No, he moved out of town after that. He was - - he told us he was going to be moving, but we didn t know when, and then I went to try to go back to him and talk to him, and he d done moved. (T. 18). The claimant acknowledged that at the time of the afore he was attempting to obtain a rating in connection with the December 2013, compensable right shoulder injury. The claimant confirmed that he has not seen a doctor regarding his right shoulder since the June 2, 2015, visit to Dr. Stroope. During cross-examination the claimant confirmed that he had previously undergone surgery on his right shoulder to address a tear, offering: 3

4 I guess it s the same area. I just know it s on the rotor cuff. They didn t tell me it was the same area. (T. 19). The claimant testified that the pervious right shoulder injury was work-related. The claimant maintains that he got over the injury and did not have any problems with the shoulder thereafter until the December 2013, injury. The claimant confirmed that he was paid indemnity benefits after he reached the end of his healing period for permanent disability from the injury. The claimant s testimony reflects that he had some permanent disability before the December 2013, compensable right shoulder injury. The claimant confirmed that the main problems bothering him now is the popping or crepitus in his shoulder from the December 2013, compensable injury. The record reflects the presence of a radiology report regarding a August 5, 2014, MRI of the claimant s right shoulder. The afore reflects, in pertinent part: IMPRESSION: Prior acromioplasty/sbacromial decompression. Subacromil enthesopathy/keel spurring with free fluid within the subacromial/subdeltoid space. Question resection involving the distal end of the right clavicle as well with disruption of the right acromioclavicular joint. Correlate with surgical history. Deltoid muscle fatty infiltration without dehiscence. Muscle bulk rotator cuff fatty infiltration somewhat asymmetric involving infraspinatus and teres minor muscle with some atrophy. Prior attempted rotator cuff repair involving the supraspinatus tendon. Supraspinatus tendinosis with large full-thickness re-tear. Tendinosis with partial thickness tear involvement of the infraspinatus tendon. Intra-articulr biceps tendinosis. Early/mild right glenohumeral joint osteoarthrosis. (CX #1, p. 1-2). The medical in the record reflects that the claimant was seen by Dr. Henry F. Stroope at 4

5 NEABC on October 23, The afore office note reflects, in pertinent part: HISTORY OF PRESENT ILLNESS: Shoulder Pain Jeffrey K Brown is a 52 y.o. male self-referred and is seen for right shoulder pain. The pain began 1 years ago. The pain is located anterior. He describes the symptoms as aching, dull and throbbing. Symptoms improve with rest. Treatment has included Natural history and expected course discussed. Questions answered. Treatment to date has been without significant relief. Limited activities include: reaching, lifting, pulling, pushing, dressing self, work at or above shoulder height, difficulty sleeping on affected side. No stiffness, no weakness, no swelling is reported. Patient is a light manual worker. * * * Ortho Exam: Examination of the patient s right shoulder is performed he has a healed surgical scar consistent with a prior open rotator cuff and distal clavicle excision. Range of motion is limited. He has active forward evaluation of 120 degrees. Abduction 100 degrees. He does have good power with resisted external rotation and really no discomfort with that but does have significant pain with resisted abduction and forward elevation against resistance. * * * IMPRESSION: 1. Pain in joint, shoulder region, unspecified laterality 2. Complete rupture of rotator cuff, right-recurrent. * * * The patient brought us an MRI report done ballotable of his right shoulder. It is consistent with a large rotator cuff tear. However I am not been able to see the disc myself and had really no idea how large it looks or whether or not it looks like a repairable rotator cuff tear. I discussed possible treatment options with the patient and I will make final plans afer am able to get the images and review them myself. Most likely we ll have to proceed with open rotator cuff repair with application of a human dermal allograft but I will 5

6 reserve judgment based upon the MRI images. (CX #1, 3-6). On November 21, 2014, the claimant underwent an open right rotator cuff repair with appliction of graft (right)-human dermal allograft at NEA Baptist Memorial Hospital under the care of Dr. Stroope. (CX #1, p. 8-10). The medical in the record reflects that the claimant was seen in follow-up by Dr. Stroope on December 30, 2014, and February 3, (CX #1, p ). On March 3, 2015, the claimant was seen by Drew Weldon Harper, PA-C, at NEABC. The progress note of the afore reflects, in pertinent part: Patient Instructions Mr. Brown is a 53 year old male who is here for rotator cuff repair follow up. He has completed his band therapy and have full ROM of the right shoulder. He has good cuff strength on the right shoulder as well. He does report occasionally having a serious blister that forms on the incision site but will pop and go away. This is most likely a suture being dissolved. The patient will return in 4 weeks for a follow up. At this point, if the patient is continuing to improve with his shoulder as he is today, the patient will be able to return as needed. The patient was sent to PT as he is wanting to strengthen his rotator cuff. HE is wanting FCEs performed and, since we do not do those in the office, He was referred to his PCP to have these done. (CX #1, p. 17). The claimant was again seen at NEABC on March 31, 2015, by Michael Scott Griffith, PA-C, in follow-up. The progress note of the afore visit reflects, in pertinent part: Subjective: The patient is 53 y.o and is now about 4 months post right shoulder open RCR with graft done at NEA Baptist Hospital on 11/21/14. Pain is controlled with current analgesics. Medications being used: narcotic analgesics including hydrocodone/acetaminophen (Lorcet, 6

7 Lortab, Norco, Vicodin). Post op problems reported: none Since last visit Jeffrey Brown in No change. Return in 6 weeks. * * * Patient was sent by his lawyer for FCE regarding his right shoulder. At this point, he is only 4 months from his rotator cuff repair. It is Dr. Stroope s opinion that it is too soon at four months for an FCE due to the fact that it may take 6 or more months to reach MMI. (CX #1, p ). The record reflects the presence of a June 2, 2015, correspondence authored by Dr. Stroope regarding the claimant: It is my medical opinion that Jeffrey Brown may return to full duty immediately with no restrictions. (CX #1, p. 22). The record reflects the presence of the pertinent passages of the AMA Guides to the Evaluation of Permanent Impairment, 4 th edition. (CX #2). An impairment rating relative to the claimant s December 2013, right shoulder injury and subsequent surgery was generated by Dr. Spencer H. Guinn, a Jonesboro orthopedic surgeon, based on his review of the clamant s medical records authored while under the care of Dr. Stroope. The afore reflects, in pertinent part: Impairment Rating According to The American Medical Association Guides to the Evaluation of Permanent Impairment, I did a thorough review of Mr. Brown s notes from NEA Baptist from Dr. Stroope. He is status post open right rotator cuff repair with application of human dermal allograft. At his last visit, March 31 st, he was seen by Dr. Stroope s physician assistant. It was noted at the time that his limitation of range of motion was consistent with adhesive capsulitis and that he had moderate pain, however, no follow up with Dr. Stroope was obtained. At his last visit, he was noted to lack 15 degrees of external rotation which is 0% impairment. He lacked two vertebral levels of internal rotation, Page 3/45, Figure 7

8 44, this results in a 2% impairment. He lacked 5 degrees of full forward flexion, Page 3/43, Figure 38, this results in a 1% impairment. 10 degrees of abduction, Page 3/44, Figure 41, this is a 1% impairment. This is a total of 4% impairment of the shoulder and upper extremity, which corresponds to 2% of the whole person. (CX #3). After a thorough consideration of all of the evidence in this record, to include the testimony of the witness, review of the medical records and other documentary exhibits, application of the appropriate statutory provisions and applicable case law, I make the following: FINDINGS 1. The Arkansas Workers Compensation Commission has jurisdiction of this claim. 2. On December 12, 2013, the employment relationship existed between the parties, during which time the claimant earned wages sufficient to entitle him to weekly compensation benefits of $243.00/$182.00, for temporary total/permanent partial disability. 3. On December 12, 2013, the claimant sustained a compensable injury to his right shoulder, which resulted in open rotator cuff repair surgery with application human dermal allograft, and reached the end of his healing period on June 2, The claimant has a permanent physical impairment in the amount of 2% to the body as a whole as a result of the December 12, 2013, compensable right shoulder injury. 5. The respondent has controverted the claimant s entitlement to indemnity benefits to correspond with the permanent physical impairment growing out of the December 12, 2013, compensable injury. CONCLUSIONS The claimant suffered a compensable injury on December 12, 2013, to his right shoulder 8

9 which resulted in surgery. The claimant maintains that he has incurred a permanent physical impairment as a result of the compensable injury and is entitled to the payment of corresponding permanent partial disability benefits. Respondent denies that the claimant s December 12, 2013, compensable injury resulted in addition anatomical impairment noting that he had previously suffered a right rotator cuff tear for which he underwent surgery. The present claim is one governed by the provision of Act 769 of 1993, in that the claimant maintains entitlement to workers compensation benefits as a result of an injury having been sustained subsequent to the effective date of the afore provisions. Permanent Physical Impairment Ark. Code Ann (c)(1)(b) (Supp. 2009), provides, in pertinent part: Any determination of the existence or extent of physical impairment shall be supported by objective and measurable physical or mental findings. Ark. Code Ann (16)(A) (Supp. 2009), provides, in pertinent part: (i) Objective findings are those findings which cannot come under the voluntary control of the patient. (ii)(a) When determining physical or anatomical impairment, neither a physician any other medical provider, an administrative law judge, the Workers Compensation Commission, nor the court may consider complaints of pain. Arkansas Workers Compensation Commission Rule , Impairment Rating Guide General Provisions, mandates the use of the Guides to the Evaluation of Permanent Impairment (4 th ed. 1993) in the assessment of anatomical impairment. 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 9

10 411 (1994). An injured employee is entitled to the payment of compensation for the permanent functional or anatomical loss of use of the body as a whole whether his earning capacity is diminished or not. Id. It is undisputed that the claimant underwent surgery in the treatment of his diagnosed right rotator cuff tear from the December 12, 2013, compensable injury. The surgery was performed by Dr. Henry F. Stoope, an orthopedic surgeon, who at the time practiced medicine in Jonesboro, Arkansas. The claimant was last seen by Dr. Stroope on June 2, 2015, at which time he was deemed to have reached the end of his healing period from the compensable injury and surgery. Dr. Stroope relocated his practice and did not provide rating in connection with the claimant s compensable shoulder injury. The claimant s prior pertinent medical records were submitted to Dr. Spence H. Guinn, a Jonesboro orthopedic surgeon, for an assessment of the residual anatomical impairment for the December 12, 2013, compensable injury and subsequent surgery. The May 4, 2016, rating report generated as a results of the afore preponderates that the claimant has sustained a permanent impairment in the amount of 2% to the body as a whole as result of the December 12, 2013, right shoulder injury. Respondent has controverted the claimant s entitlement to indemnity benefits to correspond to the 2% whole body impairment. AWARD Respondent is herein ordered and directed to pay to the claimant permanent partial disability benefits at the weekly compensation benefit rate of $182.00, to correspond with the 2% whole body impairment sustained as a result of the December 12, 2013, compensable right shoulder injury. Said sums accrued shall be paid in lump without discount. 10

11 Maximum attorney fees are herein awarded to the claimant s attorney on the controverted indemnity benefits herein awarded pursuant to Ark. Code Ann This award shall bear interest pursuant to Ark. Code Ann until paid. If they have not already done so, the respondents are directed to pay the court reporter fees and expenses within thirty (30) days of receipt of the invoice. IT IS SO ORDERED. Andrew L. Blood, ADMINISTRATIVE LAW JUDGE 11