BEFORE THE ARKANSAS WORKERS COMPENSATION COMMISSION CLAIM NO. G SHIRLEY BURRIS, EMPLOYEE SMITH BLAIR, INC., EMPLOYER

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1 BEFORE THE ARKANSAS WORKERS COMPENSATION COMMISSION CLAIM NO. G SHIRLEY BURRIS, EMPLOYEE SMITH BLAIR, INC., EMPLOYER TRAVELERS INDEMNITY INSURANCE COMPANY, INSURANCE CARRIER/TPA CLAIMANT RESPONDENT RESPONDENT OPINION FILED FEBRUARY 21, 2017 Hearing conducted before ADMINISTRATIVE LAW JUDGE MARK CHURCHWELL, in Texarkana, Miller County, Arkansas. The claimant appeared PRO SE. The respondent was represented by HONORABLE GUY ALTON WADE, Attorney at Law, Little Rock, Arkansas. STATEMENT OF THE CASE A hearing was held in the above-styled claim on January 4, 2017, in Texarkana, Arkansas. A Prehearing Order was entered in this case on December 12, The following stipulations were submitted by the parties and are hereby accepted: 1. On or about May 16, 2014, the claimant sustained admittedly compensable bilateral wrist injuries. By agreement of the parties, the issues to be litigated and resolved at the present time were limited to the following: 1. The claimant s average weekly wage and applicable compensation rates. 2. End of healing period and whether the claimant was underpaid eight weeks of benefits in approximately March of Extent of permanent impairment.

2 2 The record consists of the January 4, 2017, hearing transcript and the exhibits contained therein. FINDINGS OF FACT AND CONCLUSIONS OF LAW 1. On or about May 16, 2014, the claimant sustained admittedly compensable bilateral wrist injuries. 2. The claimant s appropriate impairment rating is 40% to the right upper extremity below the elbow instead of the 27% to the upper extremity below the elbow previously accepted by the respondents. 3. The claimant s healing period ended on March 25, 2016, and the respondents took an appropriate credit against liability for the $ in additional temporary total disability benefits paid after that date. 4. The claimant s average weekly wage is $724.49, which is precisely what the respondents calculated. DISCUSSION The claimant sustained admittedly compensable bilateral carpal tunnel syndrome injuries in (Comm. Exh. 1 p. 1) Dr. Darius Mitchell performed a carpal tunnel release procedure on Ms. Burris left wrist on July 31, 2014, and by all accounts in the medical record, Ms. Burris experienced a complete resolution of her left carpal tunnel syndrome symptoms almost immediately. (R. Exh. 1 p. 10, 67) Dr. Mitchell then performed a carpal tunnel release procedure on Ms. Burris right wrist on or about October 9, (R. Exh. 1 p. 18) Unfortunately, Dr. Mitchell s release procedure on the right wrist improved Ms. Burris symptoms for at most a short time, and Dr. Michael Moore performed a revision release procedure on July 20, 2015.

3 3 During his revision surgery, Dr. Moore noted that the median nerve in Ms. Burris right wrist had become adhered to scar tissue. Dr. Moore loosened the nerve from the scar tissue and placed the nerve in a NeuraGen wrap. Dr. Moore also observed and removed a neuroma from the median nerve during surgery. Dr. Moore indicated that the injury to the median nerve appeared to involve approximately 25-30% of the nerve, and that Ms. Burris might elect to undergo nerve grafting in the future. (R. Exh. 1 p. 87) When Dr. Moore retired, Ms. Burris came under the care of Dr. Jeanine Andersson. In February of 2016, Ms. Burris underwent a repeat electrodiagnostic study which indicated the presence of severe right focal median neuropathy and severe chronic denervation of the abductor pollicis brevis muscle. (R. Exh. 1 p ) On March 25, 2016, Dr. Andersson calculated a 27% impairment to Ms. Burris right upper extremity using data which is not identified in her report. (R. Exh. 1 p. 150) The respondents have accepted and are currently paying out that rating. (R. Exh. 2 p. 31) In the present claim, Ms. Burris takes issue first with the 27% impairment accepted by the respondents since Dr. Andersson acknowledged in a report dated March 24, 2016, that her rating would be based only on functional deficit and would not take into account Ms. Burris more disabling neurological component. Ms. Burris has noted that in her

4 4 own report, Dr. Andersson indicated that Ms. Burris impairment needs to be measured off of the repeat nerve conduction study performed by Dr. Sprinkle. (R. Exh. 1 p. 148) Second, Ms. Burris seeks a Commission finding regarding the end of her healing period and whether she was underpaid approximately eight weeks of benefits in approximately March of Third, Ms. Burris seeks a finding as to whether or not gain sharing profits, gym membership reimbursement, and premium payments by an employer for vision and dental insurance are considered wages for purposes of calculating an average weekly wage. (T ) The respondents contend that appropriate benefits have been paid at the appropriate rate. In addition, the respondents objected to hearsay testimony and improper handwriting on medical reports offered into evidence. Issue 1: Evidentiary Objections. This examiner has confirmed that all of the text in the nine pages of medical reports in Claimant s Exhibit 1 is also contained in Respondents Exhibit 1. This examiner therefore reviewed the unedited reports in Respondents Exhibit 1 in researching the findings herein. However, I note that Respondents Exhibit 1 also contains highlighter markings which may make both Claimant s Exhibit 1 and Respondents Exhibit 1 subject to a substitution demand by

5 5 either the Full Commission or the Arkansas Courts on any review. However, notwithstanding the defects, I am accepting all of the proffered documents into evidence for purposes of the findings herein. Mr. Wade raised a number of hearsay objections during Ms. Burris narrative testimony. (T. 11, 12, 13, 14, 15, 16, 19, 22, 23, 27) However, Mr. Wade sought essentially what this examiner perceives as the exact same type of hearsay testimony from Ms. Burris on two occasions himself. (T. 64 L. 3-4; T. 66 L ) The Arkansas Supreme Court has previously explained regarding the admissibility of hearsay testimony in St. Paul Ins. Co. v. Touzin, 267 Ark. 539, 592 S.W.2d 447 (1980): First, the compensation law provides that the Commission is not bound by technical rules of evidence or procedure, but may "conduct the hearing in a manner as will best ascertain the rights of the parties." [Citation omitted]. Professor Larson discusses at length the cases construing such provisions in workers' compensation statutes. He concludes that the factfinders are expected to adhere to basic rules of fair play, such as recognizing the right of cross examination and the necessity of having all the evidence in the record. On the other hand, a compensation commission undoubtedly has expertise much superior to that of a jury in the weighing of testimony and should therefore be left to determine the probative value of hearsay testimony and other proof that might not be admissible in a court of law. Larson, Workmen's Compensation Law, and (1976). Having found no subsequent guidance from the Court or the Legislature to the contrary, I find that the proffered

6 6 hearsay testimony is accepted into the record and will be accorded whatever weight that it is entitled to. Issue 2: Permanent Impairment. The Arkansas Court of Appeals thoroughly discussed the requirements necessary to establish an entitlement to benefits for a permanent anatomical impairment in Excelsior Hotel v. Squires, 83 Ark. App. 26, 115 S.W.3d 823 (2003). First, benefits for permanent impairment must be based on an impairment rating using the AMA Guides to the Evaluation of Permanent Impairment (4 th ed. 1993). The Commission may review the Guides even if the Guides are not in the record, and the Commission may determine its own impairment rating under the Guides, rather than simply assessing the validity of impairment ratings assigned by doctors. Avaya v. Bryant, 82 Ark. App. 273, 105 S.W.3d 811 (2003). Second, benefits for permanent anatomical impairment shall be awarded only if the claimant s compensable injury is the major cause of the impairment at issue. Ark. Code Ann (4)(F)(ii)(a). The provisions of Ark. Code Ann (4)(F)(ii)(b) do not apply in determining a claim for permanent anatomical impairment. Michael v. Keep & Teach, Inc., 87 Ark. App. 48, 185 S.W.3d 158 (2004). Major cause means more than 50% of the cause. Ark. Code Ann (14).

7 7 Third, a determination of the existence and extent of physical impairment must be supported by objective and measurable physical findings. Ark. Code Ann (c)(1)(B). Objective findings are defined as those findings which cannot come under the voluntary control of the patient. Ark. Code Ann (16)(A)(i). When determining the permanent physical impairment, neither a doctor nor the Commission may consider complaints of pain. For purposes of assigning impairment ratings to the spine, straight-leg-raising tests and range-of-motion tests do not qualify as objective findings. Ark. Code Ann (16)(A)(ii). If the allegation of permanent physical impairment is supported by objective and measurable findings, then the Commission must also consider the credibility of relevant subjective evidence as well in assessing permanent impairment. Singleton v. City of Pine Bluff, 97 Ark. App. 59, 244 S.W.3d 709 (2006). A. Left Carpal Tunnel Syndrome During the course of the hearing, Ms. Burris testified about some intermittent numbness, tingling, and shooting pains that she experiences at time in her left arm or her left thumb area. (T ) However, according to Dr. Mitchell s records, Dr. Mitchell released Ms. Burris from his care for her left wrist on August 15, 2014, some two weeks after surgery, with a complete resolution of her left carpal tunnel syndrome symptoms. (R. Exh. 1 p. 9-13) This

8 8 examiner sees no indication that Ms. Burris ever again complained about any symptoms in her left wrist or hand to any doctor after August 15, 2014, and Ms. Burris never underwent any additional diagnostic testing at any point after her release on August 15, Under these circumstances, I find that Ms. Burris has failed to establish that the existence and extent of any impairment due to her left carpal tunnel syndrome is supported by objective medical findings, and I see no basis for a rating to the left wrist on this record under the AMA Guides. Ms. Burris has therefore failed to establish that she is entitled to an award of benefits for an impairment rating for her left carpal tunnel syndrome. B. Right Carpal Tunnel Syndrome Again, Dr. Andersson has credibly opined that the most disabling portion of Ms. Burris right upper extremity injury is her neurological deficit and that Ms. Burris impairment rating needs to be measured off of the repeat nerve conduction study performed by Dr. Sprinkle. (R. Exh. 1 p. 148) Dr. Sprinkle indicated in his study performed on February 16, 2016, that Ms. Burris has a severe right focal median neuropathy. (R. Exh. 1 p. 124) Under these circumstances, I find that the most appropriate measure of Ms. Burris impairment for her compensable right wrist injury is the 40% to the upper extremity assigned on Table 16 on page 3/57 of the AMA

9 9 Guides for a severe median nerve entrapment injury at the wrist. I note that this degree of impairment under this table is supported by Dr. Sprinkle s objective electrodiagnostic study performed essentially contemporaneous to Ms. Burris reaching the end of her healing period for her right wrist injury. In addition, since there is no indication anywhere in the record that any other abnormality, in addition to the work related injury, subsequent nerve adhesion and neuroma, caused or contributed to the abnormal nerve testing results obtained by Dr. Sprinkle, I find that the claimant s compensable right carpal tunnel syndrome injury is the major cause of the 40% impairment to the upper extremity assigned herein. Dr. Andersson s report appears somewhat ambiguous as to whether a calculated functional impairment (27% in this case) and a calculated neurological impairment (40% in this case) should or should not be combined or considered as alternatives. I find for the following reasons that the calculated functional impairment and the neurological impairment should not be combined (i.e., added together) and are instead alternative impairment ratings. First, as far as this examiner can discern from the record, Ms. Burris sustained only one injury to her right upper extremity - a compression of the median nerve in her right wrist (i.e., carpal tunnel syndrome). Her sensory and motor dysfunctions - involving largely the thumb and to a

10 10 lesser extent the index finger - are manifestations of the nerve injury in her wrist. Second, the text in Section 3.1 (The Hand and Upper Extremity) of the AMA Guides specifically states that if an impairment results from a peripheral nerve lesion, the evaluator should not apply impairment percentages for measurements in section 3.1f through 3.1j because of duplication. Therefore, for example, a separate impairment for restricted motion would be allowed only if restricted motion cannot be attributed to the peripheral nerve lesion. See page 3/46. Third, the example applying Table 16 on 3/56 specifically states, consistent with the text on page 3/46, that if a patient is assigned a rating for median nerve impairment in the hand under Table 16, no additional impairment is allotted for loss of grip strength. In utilizing Table 16 to determine a rating for a median nerve entrapment injury, this examiner has considered the possibility that Table 16 could provide a false positive impairment value under circumstances where a patient s clinical symptoms markedly improved after surgery, but the patient s electrodiagnostic readings did not change after surgery. In addition, this examiner has not identified through legal research any prior published majority Full Commission opinions utilizing Table 16 in assessing impairment for ulnar or median nerve entrapment injuries.

11 11 Nevertheless, in the present case, Dr. Andersson has credibly opined that Ms. Burris rating should be determined based on Dr. Sprinkle s nerve conduction study. I note that the only alternative to Table 16 in assessing impairment to a median nerve in the upper extremity in the fourth edition of the AMA Guides involves using Table I point out that the severity of the impairment using Tables 11 and 12 appears to be based on subjective test results involving sensation responses and active movement of the affected member, whereas Table 16 severity can be based on the objective electrodiagnostic test results themselves. In addition, this examiner sees no indication that Ms. Burris subjective clinical symptoms in her right upper extremity improved after Dr. Moore s surgery in July of 2015 identifying a neuroma and median nerve adherence, and this examiner notes that Ms. Burris s ongoing impairment is supported not only by the objective electrodiagnostic test results, but also by objective clinically identified ongoing muscle atrophy that inhibits thumb function. 1 (R. Exh. 1 p. 152) In comparing the methodology of Table 16 to Tables 10-15, I also note that the maximum impairment assignable to the upper extremity for impairment involving only the median nerve under Table 15 is 44% to the upper extremity due to 1 Again, as far as this examiner can discern from the reports in evidence, the muscle atrophy and decreased thumb function are both manifestations of the impaired median nerve due to the nerve s injury in the wrist.

12 12 combined motor and sensory deficit. I note that this percentage is comparable to, and only slightly more than, the 40% assignable under Table 16 for severe neuropathy of the median nerve at the wrist. Therefore, absent any credible indication that Ms. Burris clinical symptoms are in any way out of proportion to her electrodiagnostic test results, in light of the more subjective nature of the evaluation process using Table 10-15, and in light of Dr. Andersson s opinion that Ms. Burris nerve impairment should be based on the most recent nerve conduction study performed by Dr. Sprinkle, I conclude that Table 16 contains the more preferable methodology as compare to Table for determining Ms. Burris impairment rating. Therefore, for all of the reasons discussed herein, I find that Ms. Burris appropriate impairment rating is 40% to the upper extremity, and not a more or lesser amount. I find that 40% is Ms. Burris rating instead of 27%, and therefore the 40% awarded herein is not in addition to the 27% previously accepted by the respondents. Finally, I note that since the injury was at the wrist (i.e., below the elbow) the rating assigned herein represents 40 percent of 183 weeks (i.e., 73.2 weeks). See Ark. Code Ann (a)(2). The respondents are entitled to a credit against this award for the benefits that they have previously paid

13 13 to Ms. Burris for a 27% impairment to her right upper extremity below the elbow. C. Reflex Sympathetic Dystrophy. Ms. Burris has referenced RSD (reflex sympathetic dystrophy) in her prehearing contentions and in testifying about her medical reports. It is true that Dr. Mitchell for a period in 2015 had a working diagnosis of reflex sympathetic dystrophy in Ms. Burris right hand. (R. Exh. 1 p. 57, 71) However, this was before Dr. Moore found the median nerve adhered in scar tissue and a neuroma involving the radial 25% of the median nerve during surgery on July 20, (R. Exh. 1 p. 87) No physician ever again after these surgical findings ever again mentioned reflex sympathetic dystrophy as a possible cause of Ms. Burris symptoms. Under these circumstances, I find credible the opinions of Dr. McAlister and Dr. Moore that Ms. Burris did not have reflex sympathetic dystrophy or chronic regional pain syndrome. (R. Exh. 1 p. 71, 84) Because I find that Ms. Burris did not have reflex sympathetic dystrophy, I find no basis for attempting to rate a separate impairment for that condition under the AMA Guides. Issue 3: End Of Healing Period For Right Wrist And Temporary Disability Overpayment Credits. The respondents filed a Form S at the Commission on or about April 6, 2016, indicating that the respondents paid Ms. Burris temporary total disability compensation to April

14 14 5, 2016, but learned that Dr. Andersson had assigned Ms. Burris an impairment rating for her right wrist on March 25, Under these circumstances, the respondents claimed one week and four days of overpayment of $ in temporary total disability compensation for the period between March 25, 2016, and April 6, The respondents began making payments for the 27% impairment rating retroactive to March 25, 2016, and the respondents recouped the $ temporary disability overpayment by reducing Ms. Burris first three bi-weekly permanent disability checks by a total of $ spread out over the three checks (the first check was reduced by $362.00; the second was reduced by $362.00; the third was reduced by $35.00). (R. Exh. 2 p. 31) The computer payment log in evidence confirms that biweekly payments were subsequently made to Ms. Burris in the amounts indicated in the Form S for March, April and May to recoup the overpayment. (R. Exh. 2 p. 19) The claimant s work related injury at issue is a wrist injury, therefore the claimant s injury is considered a scheduled injury. See Ark. Code Ann (a). For a scheduled injury, a claimant is entitled to temporary total disability benefits until the healing period ends or until the claimant returns to work, whichever occurs first. Wheeler Construction Co. v. Armstrong, 73 Ark. App. 146, 41 S.W.3d 822 (2002). The healing period continues until the injured employee is as far restored as the permanent

15 15 character of the injury will permit. The healing period ends once the underlying condition has become stable and when nothing further in the way of medical treatment will improve the permanent character of the injury. Mad Butcher, Inc. v. Parker, 4 Ark. App. 124, 628 S.W.2d 582 (1982). The persistence of pain is not sufficient, by itself, to extend the healing period provided that the underlying condition has stabilized. Id. In the present case, Ms. Burris did not return to work. Therefore, temporary disability compensation continues until her healing period ends. I find that Ms. Burris healing period for her right wrist ended, as the Form S also concluded, on March 25, 2016, when Dr. Andersson assigned Ms. Burris an impairment rating. By that date, Dr. Sprinkle had performed the nerve conduction study. Ms. Burris had declined surgery, and Ms. Burris had undergone a functional capacity evaluation. On this record, I find that Ms. Burris was as far restored as the permanent nature of her injury would permit as of March 25, 2016, when Dr. Andersson assigned her a permanent impairment rating. A claimant cannot be awarded temporary disability benefits after the healing period has ended. Elk Roofing Co. v. Pinson, 22 Ark. App. 191, 737 S.W.2d 661 (1987). Because I find that the claimant s healing period ended on March 25, 2016, the respondents are correct that they overpaid one week and four days of temporary disability

16 16 benefits. A workers compensation insurance carrier is entitled to recoup by a credit against future benefits an inadvertent overpayment of disability benefits. See Maulding v. Price s Utility Contractors, Inc., 2009 Ark. App. 776, 358 S.W.3d 915. Again, the computer print out in evidence confirms that over the first three biweekly PPD (permanent impairment) payments, the respondents in this case reduced Ms. Burris three checks in a sum totaling their prior $ overpayment in temporary disability compensation. (R. Exh. 2 p. 19) Because the respondents were entitled to a credit against liability for their prior $ overpayment, I find that Ms. Burris has not been underpaid any benefits. Issue 4: Average Weekly Wage Arkansas Code Annotated section provides: (a)(1) Compensation shall be computed on the average weekly wage earned by the employee under the contract of hire in force at the time of the accident and in no case shall be computed on less than a full-time workweek in the employment. (2) Where the injured employee was working on a piece basis, the average weekly wage shall be determined by dividing the earnings of the employee by the number of hours required to earn the wages during the period not to exceed fifty-two (52) weeks preceding the week in which the accident occurred and by multiplying this hourly wage by the number of hours in a full-time workweek in the employment. (b) Overtime earnings are to be added to the regular weekly wages and shall be computed by dividing the overtime earnings by the number of weeks worked by the employee in the same employment under the contract of hire in force at the time of the accident, not to

17 17 exceed a period of fifty-two (52) weeks preceding the accident. (c) If, because of exceptional circumstances, the average weekly wage cannot be fairly and justly determined by the above formulas, the commission may determine the average weekly wage by a method that is just and fair to all parties concerned. In addition, Arkansas Code Annotated section (19) provides: Wages means the money rate at which the service rendered is recompensed under the contract of hiring in force at the time of the accident, including the reasonable value of board, rent, housing, lodging, or similar advantage received from the employer and includes the amount of tips required to be reported by the employer pursuant to section 6053 of the Internal Revenue Code of 1954 and the regulations promulgated pursuant thereto or the amount of actual tips reported, whichever amount is greater. In the present case, I find for the following reasons that the respondents correctly determined Ms. Burris wages in determining an average weekly wage. First, to the extent that Ms. Burris contends that her wages should include her production bonuses, I note that there are 12 bonuses documented on the 52 week earnings schedule in evidence. (R. Exh. 2 p. 17) Ms. Burris has presented no evidence whatsoever that she received any production bonuses during the relevant 52 week period in addition to the 12 bonuses documented on the earnings schedule in evidence. Second, to the extent that Ms. Burris contends that her average weekly wage should include the employer s portion of premiums paid for vision and dental insurance, my research suggests that the Arkansas Supreme Court has never addressed

18 18 this specific issue in a published opinion. However, the Arkansas Court of Appeals has addressed this issue in at least one published opinion and interpreted that the term wages as used in the Arkansas Workers Compensation Law does not include employer contributions to an employee s fringe benefits of medical, life, and disability insurance. Tabor v. Levi Strauss & Co., 33 Ark. App. 71, 801 S.W.2d 311 (1990) Since employer contributions to vision and dental insurance appear to be the same general type of fringe benefit addressed in Tabor, I find under the reasoning of Tabor that Smith Blair s contributions of premiums toward Ms. Burris vision and dental insurance are not wages within the meaning of the Arkansas Workers Compensation Law. Under the reasoning of Tabor, I likewise conclude that gym membership reimbursement is a fringe benefit that is also not wages for purposes of determining an average weekly wage. Third, I note that the total sum of Ms. Burris 52 weeks of wages for the period ending on May 11, 2014, is identified as $37, on the weekly earnings schedule in evidence. (R. Exh. 2 p. 17) This 52 week sum, divided by 52 weeks, exactly reproduces the average weekly wage of $ listed on the Form 2 in evidence. (R. Exh. 2 p. 15) I therefore find for all of the reasons discussed herein, that the preponderance of the evidence establishes that Ms. Burris average weekly wage is $ per week,

19 19 and that the respondents were correct in determining the average weekly wage without adding in the employer s portion of insurance premiums or gym membership reimbursements. AWARD The respondents are directed to pay benefits in accordance with the findings set forth herein. All accrued sums shall be paid in a lump sum without discount and this award shall earn interest at the legal rate until paid, pursuant to Ark. Code Ann , and Couch v. First State Bank of Newport, 49 Ark. App. 102, 898 S.W.2d 57 (1995), and Burlington Industries, et al v. Pickett, 64 Ark. App 67, 983 S.W.2d 126 (1998); reversed on other grounds 336 Ark. 515, 988 S.W.2d 3 (1999). The respondents are directed to pay the court reporter s fees and expenses within thirty (30) days of billing. IT IS SO ORDERED. MARK CHURCHWELL Administrative Law Judge