BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. G508545 MARION SEGARS, EMPLOYEE KISWIRE PINE BLUFF, INC., EMPLOYER TRAVELERS INDEMNITY COMPANY, INSURANCE CARRIER CLAIMANT RESPONDENT RESPONDENT OPINION FILED FEBRUARY 15, 2017 Hearing before Administrative Law Judge Elizabeth W. Hogan on November 18, 2016, in Little Rock, Pulaski County, Arkansas. Claimant represented by Mr. M. Keith Wren, Attorney at Law, Little Rock, Arkansas. Respondents represented by Mr. Tod C. Bassett, Attorney at Law, Fayetteville, Arkansas. ISSUES A hearing was conducted to determine the claimant s entitlement to payment of medical expenses, temporary total disability benefits and attorney s fees. At issue is whether or not the claimant sustained a compensable injury pursuant to Ark. Code Ann. 11-9-102. After reviewing the evidence impartially, without giving benefit of the doubt to either party, Ark. Code Ann. 11-9-704, 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 November 4, 2015, at which time the claimant was earning sufficient wages to be entitled to a compensation rate of $629.00/$472.00, in the event this claim is found to be compensable. The claimant contends he injured his right shoulder on November 4, 2015, catching a test tube. Ultimately, Dr. Scott Bowen performed surgery on January 13, 2016, for a rotator cuff tear. The claimant s employment was terminated on May 9,
-2-2016. He seeks payment of medical expenses, temporary total disability benefits from January 13, 2016, to a date yet to be determined, and attorney s fees. The respondents contend the claimant did not sustain an injury within the course and scope of employment. The activity of catching a test tube is insufficient to cause a rotator cuff tear. The claimant has also had a rotator cuff tear of the left shoulder in the past. His termination was related to a non-work related back injury which required the use of narcotics. The following were submitted without objection and comprise the evidence of record: the parties prehearing questionnaires and exhibits contained in the transcript along with the deposition of the claimant (taken October 6, 2016), incorporated by reference. The following witnesses testified at the hearing: the claimant and former coworker Harry Reep, whose testimony was not persuasive. The claimant, age 56 (D.O.B. August 23, 1960), has a high school education and vo-tech training in auto body work and cabinet making. He is right hand dominant. His health history includes a 1992 or 1993 back injury for which he takes medication and a 2015 left rotator cuff injury which required surgery. The claimant worked for the respondent employer for twenty-five (25) years from 1991 to April 2016, (ten [10] days after his FMLA benefits expired). He now draws Social Security Disability benefits based on his back and shoulder. Since 2001, the claimant worked as a lab technician for the company, testing wire samples. On November 4, 2015, the claimant was applying acid to a wire in a test tube. As he was throwing the wire in the trash, he lost his grip on the test tube. When he reached out to grab it, he heard a popping sound in his right shoulder.
-3- He reported the incident to his lead man, who referred him to the supervisor, who referred him to the safety manager. The claimant was sent to the company doctor who performed X-rays which were negative. The safety manager told the claimant the carrier would not pay for more treatment. The claimant tried unsuccessfully to return to work and used some vacation time. The claimant went to see his family physician, Dr. Phillips, who was already prescribing medication for his back. An MRI scan was positive and Dr. Bowen performed rotator cuff surgery on January 13, 2016. Dr. Bowen released him on April 25, 2016, with permanent work restrictions. Because the claimant s FMLA time had expired ten (10) days earlier, his employment was terminated. On cross-examination, respondent s counsel pointed out several inconsistencies with the claimant s testimony at the hearing as compared to the medical records and the deposition testimony. For instance, the claimant denied falling through the floor and injuring both ankles in April 2013. He also denied telling the doctor he was able to work on November 11, 2015. The claimant stated that his right arm pain reported in 2013, dissipated before the incident in November 2015, but the respondents argue that the claimant was already taking medication for his back pain that masked his shoulder pain. His back pain increased in 2015 to the point that he began seeing Dr. Mocek for pain management. The respondents also point out that the prospects of disability were discussed early on with his physician, suggesting a lack of motivation. Deposition page 54: Attorney Bassett: If there was any way that you could get that same job back at Kiswire, would you be willing to go back out there and do it? Claimant Segars: If I don t get my disability, yes, sir.
-4- MEDICAL EVIDENCE Prior to the November 4, 2015, right shoulder incident at work, the claimant complained of bilateral shoulder pain, worse on the left. Report of April 30,2013: (After lifting a lawnmower) He may have a degenerative rotator cuff tear in the right shoulder though he indicated today that he didn t want to pursue anything concerning this. He will contact us if this remains symptomatic and an MRI scan could be obtained of one or both shoulders. Both shoulders were X-rayed. The claimant was diagnosed with impingement and synovitis of the left shoulder. On a follow-up visit, Dr. Bowen physically examined both shoulders. The right shoulder showed full range of motion and the claimant reported improvement in pain. The left shoulder remained weak, painful, and the clinical exam was positive for a drop sign. An MRI of the left shoulder was positive for a rotator cuff tear and osteoarthritis. Surgery was performed on July 12, 2013. Dr. Bowen does mention a jerking incident with the left arm in his report of July 30, 2013, which is not unlike the November 4, 2015, incident at work. The claimant asked to return to work on September 3, 2013, with right hand duty only. In an October 17, 2013, report, the claimant was released. It is noted that the clinical exam compared the left and right arm. Only the left arm exhibited weakness. After the incident at work on November 14, 2015, the claimant saw a company doctor and reported a work-related incident consistent with his testimony. On November 9, 2015, the claimant saw his family physician, Dr. Phillips, but made no mention of a shoulder problem. On November 11, 2015, the claimant reported that his claim had been denied and he needed to return to work and would follow-up with his family physician. An
-5- November 25, 2015, MRI scan was positive for a large rotator cuff tear of the right shoulder. Dr. Phillips referred the claimant to Dr. Burrell for a December 14, 2015, appointment which the claimant apparently cancelled. On December 18, 2015, the claimant asked Dr. Phillips to refer him to Dr. Bowen who performed the earlier surgery on his left shoulder. The claimant saw Dr. Bowen on January 5, 2016, listing a date of injury of November 4 th or 7 th of 2015. Report of January 5, 2016: Butch is here today complaining of right shoulder pain that began when he was working at Kiswire, stripping wire and testing it with nitric acid in a test tube and then suddenly had to reach for the test tube as it fell out of his hand. The sudden forward motion of his right shoulder caused significant pain in the shoulder. He has never had pain before. It is pertinent that he had a left shoulder rotator cuff repair two and a half years ago that did well. (Emphasis added)... I presume that since he had no symptoms in his shoulder prior to this injury that this was causative and is the reason for his current shoulder problem. Surgery (partial rotator cuff repair of acute on chronic tear of two tendons) was performed on January 13, 2016, to the claimant s right shoulder. In a January 21, 2016, follow-up report, the doctor commented: we were able to close the defect for the most part but left a small 5 by 5 mm area posteriorly that could not be closed fully.... He understands that at two years, there is a 50% failure rate. He is looking at possible disability later... The claimant was provided with home exercises and excused from work. Dr. Phillips record of February 26, 2016, mentions a lumbar strain and back brace although the handwritten report is difficult to read in its entirety.
-6- Dr. Bowen s report of April 7, 2016: We did a partial repair and he had about 75% of the tendon closed. He has been on light duty status which has been no duty for him... He states there is a click in his shoulder which he can reproduce when he flexes. Dr. Bowen released the claimant to permanent light duty, lifting no more than 5 (five) pounds up to his waist on an occasional basis, and no overhead lifting for any significant period of time. Dr. Bowen recommended a desk job. The claimant tried unsuccessfully to return to work so Dr. Bowen recommended a sedentary job using a computer and/or a phone with headset. Dr. Bowen also prescribed a month of rest. An April 15, 2016, leave slip also prescribes limited standing. A September 20, 2016, report mentions some pain relief and improved range of motion, but continuing night pain and catching in the right shoulder. The clinical exam showed weakness and decreased range of motion. Dr. Bowen advised that the claimant may need periodic injections, repeat MRI scans and a reverse shoulder replacement. FINDINGS OF FACT AND CONCLUSIONS OF LAW The claimant s medical records show a history of bilateral shoulder (since 2013) and back pain (since 1992) for which the claimant took medication. Despite these problems, the claimant was able to perform his job as a lab technician and had worked for the company for twenty-five (25) years. The claimant injured his right shoulder when he tried to grab a test tube slipping out of his hand on November 4, 2015. He reported the incident to his employer and was sent to a company doctor. When the X-rays were negative, the claim was apparently controverted. Dr. Bowen performed surgery and opined that the incident at work caused his injury, based not on the weight of the test tube, but on the forward motion of his shoulder.
-7- As this claim arose after July 1, 1993, this case is governed by Act 796 of 1993, which must be strictly construed, Ark. Code Ann. 11-9-704, 11-9-717. Under the Act, the claimant has the burden of proving the following requirements by a preponderance of the evidence of record: 1. An injury arising out of and in the course of employment 2. An injury causing internal or external harm to the body, requiring medical services or resulting in disability or death 3. An injury established by objective medical findings 4. (a) An injury caused by a specific event identifiable by time and place of occurrence or 5. (b) A gradual injury, caused by rapid and repetitive motion, which is the major cause of the disability or need for medical treatment. Dr. Bowen based his opinion of causation on inaccurate information. The claimant had, in fact, previously reported right arm pain and a rotator cuff tear was suspected in 2015, although never confirmed by diagnostic testing. The right arm was never specifically treated before 2015, however, the claimant was taking increasing amounts of medication for his back symptoms. Therefore, Dr. Bowen s medical opinion is not binding on the Commission. Roberts v. Leo Levi Hospital, 8 Ark. App. 184, 649 S.W. 402 (1983). 1. The Workers Compensation Commission has jurisdiction of this claim in which the employee-employer-carrier relationship existed on November 4, 2015, at which time the claimant was earning sufficient wages to be entitled to a compensation rate of $629.00/$472.00, in the event this claim is found to be compensable. 2. The claimant has failed to prove by a preponderance of the credible evidence that he sustained a compensable injury,
-8- caused by a specific incident, arising out of and in the course of his employment which produced physical bodily harm, supported by objective findings, requiring medical treatment or producing disability, pursuant to Ark. Code Ann. 11-9-102. 3. 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