Opinion
CLAIM NO. E506048
OPINION FILED SEPTEMBER 11, 1997
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by TRAVIS MATHIS, JR., Attorney at Law, Arkadelphia, Arkansas.
Respondents represented by MIKE ROBERTS, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed.
OPINION AND ORDER
An Administrative Law Judge entered an opinion and order in the above-captioned claim on October 7, 1996, finding that claimant was entitled to an 8% whole body physical impairment rating as assigned by her treating physician, Dr. Kevin McLeod.
Respondents now appeal from that opinion and order, contending that claimant has not satisfied Ark. Code Ann. § 11-9-704(c)(1)(B) (Repl. 1996), which requires a physical impairment rating to be "supported by objective and measurable physical or mental findings."
Following our de novo review of the entire record, we specifically find that claimant has proven, by a preponderance of the credible evidence, that she is entitled to an 8% whole body permanent anatomical impairment rating. The decision of the Administrative Law Judge must therefore be, and hereby is, affirmed.
Claimant sustained a compensable injury on March 13, 1995, when she fell and suffered a three-part fracture of the right proximal humerus. She received conservative management from Dr. Kevin McLeod, who issued an 8% whole body permanent impairment on May 30, 1995. On March 7, 1996, Dr. McLeod explained the basis of this rating:
Based on her examination of 5-30-95 involving right shoulder injury after the three part fracture to proximal humerus, she was found to have a normal neurovascular exam to the upper extremity and no muscle weakness. She did have restriction of range of motion compatible with fracture contracture and capsulitis about the right shoulder.
Dr. McLeod explained further on May 7, 1996:
The patient . . . received a final disability review on 5-30-95. She showed no motor or neurological impairment to the right upper extremity. Her only impairment was in this (sic) deficient margins of range-of-motion. The 8% impairment is related to that restricted range-of-motion compatible with a capsulitis to the shoulder and this was stated with intent of a reasonable degree of medical certainty.
Ark. Code Ann. § 11-9-704(c)(1)(B) (Repl. 1996) requires that "any determination of the existence or extent of physical impairment shall be supported by objective and measurable physical or mental findings." Also, Ark. Code Ann. § 11-9-102(16)(A)(i) (Repl. 1996) defines "objective findings" as "those findings which cannot come under the voluntary control of the patient," while Ark. Code Ann. § 11-9-102(5)(F)(ii)(a) (Repl. 1996) provides that "permanent benefits shall be awarded only upon a determination that the compensable injury was the major cause of the disability or impairment." Furthermore, range of motion tests cannot serve as "objective findings" within the meaning of the foregoing statutory provisions. In Cox v. CFSI Temporary Employment, ___ Ark. App. ___, ___ S.W.2d ___ (1997), the Arkansas Court of Appeals held that:
Construing the Act strictly, it is apparent that appellant's inability to bend more than 90 degrees is not an "objective finding" within the meaning of Ark. Code Ann. § 11-9-102(16)(A)(i). Appellant's limitation could clearly have come under his voluntary responses, his manipulation, and control. See Duke v. Regis Hairstylists, 55 Ark. App. 327, 935 S.W.2d 600 (1996).
Finally, it should be noted that any impairment rating claimant may be entitled to should be assigned to the whole body, since a shoulder injury is deemed to be a non-scheduled one. SeeTaylor v. Pfeiffer Plumbing Heating, 8 Ark. App. 144, 648 S.W.2d 526 (1983).
Because Dr. McLeod has expressly relied upon range of motion findings in determining the extent of claimant's permanent impairment, we can allow essentially no weight to the rating he has assigned. However, this does not end our inquiry, for we are persuaded that the ultimate origins of claimant's restricted range of motion are themselves objective. In other words, while range of motion testing cannot serve as the basis for an impairment rating, the residual abnormalities which have resulted in the loss of motion can be the basis of an impairment rating — so long as they are supported by objective findings within the meaning of Ark. Code Ann. § 11-9-102(16)(A)(i) (Repl. 1996).
In the present claim, Dr. McLeod has diagnosed claimant's residual abnormalities as "capsulitis" and "fracture contracture." Dorland's Illustrated Medical Dictionary, 28th ed., 1994, defines "capsulitis" as the "inflammation of a capsule, as that of the lens, joint, liver, or labyrinth."
While Dr. McLeod has not elaborated on his diagnosis of "fracture contracture," the term "contracture" is defined byDorland's as a "condition of fixed high resistance to passive stretch of a muscle, resulting from fibrosis of the tissues supporting the muscles or joints, or from disorders of the muscle fibers." In turn, "fibrosis" (again, according to Dorland's) is the "formation of fibrous tissue, as in repair or replacement of parenchymatous elements."
We find these diagnoses consistent with claimant's reported residual complaints, and we find that the preponderance of the evidence establishes that these residual abnormalities have in fact produced a permanent anatomical impairment in claimant's shoulder.
We also find that the presence of permanent capsulitis and fracture contracture in claimant's shoulder is supported by objective medical findings. Claimant's multiple humerus fracture, which has caused both of her residual abnormalities, has been consistently documented with objective radiographic studies, beginning with the date of her injury (March 13, 1993) when Dr. Victor Ferrari identified a fracture "through the right humeral neck."
We also find that claimant's compensable injury is the major cause of her resulting impairment as required by Ark. Code Ann. § 11-9-102(5)(F)(ii)(a) (Repl. 1996). The record before us simply contains no source for claimant's permanent impairment other than the multiple humerus fracture of March 13, 1996.
Because we find from our de novo review of the entire record that claimant's whole body impairment is supported by objective findings within the meaning of Ark. Code Ann. §§ 11-9-704(c)(1)(B) and 11-9-102(16)(A)(i) (Repl. 1996), and that her compensable injury is the major cause of said impairment, we specifically find that claimant is entitled to an 8% permanent anatomical impairment rating to the whole body. The decision of the Administrative Law Judge must therefore be, and hereby is, affirmed.
All accrued benefits shall be paid in a lump sum without discount and with interest thereon at the lawful rate from the date of the Administrative Law Judge's decision in accordance with Ark. Code Ann. § 11-9-809 (Repl. 1996).
For prevailing on this appeal before the Full Commission, claimant's attorney is hereby awarded an additional attorney's fee in the amount of $250.00 pursuant to Ark. Code Ann. § 11-9-715(b) (Repl. 1996).
IT IS SO ORDERED.
DISSENTING OPINION
I respectfully dissent from the majority's opinion finding that claimant has proven entitlement to a permanent partial disability rating of 8% to the body as a whole. Based upon my de novo review of the entire record, the impairment rating assigned is based solely upon subjective findings.
As a result of her injury claimant was examined and treated by several physicians. Claimant was seen by Dr. Mark Jansen who released claimant to return to work, April 15, 1995 without an impairment rating. Dr. Jansen specifically noted in the form to be completed by treating physicians that "the claimant has suffered no permanent impairment due to her work related injury."
Claimant has also been examined and treated by Dr. Kevin McLeod. On May 30, 1995, claimant saw Dr. McLeod for a final disability review. Dr. McLeod examined claimant on that date and based upon his range of motion studies assigned the claimant an 8% whole person impairment.
As noted by the majority, Dr. McLeod concluded that the range of motion deficiencies were "compatible with fracture contracture and capsulitis about the right shoulder".
In November of 1995 claimant sought the services of Dr. Bruce Safman with regard to her shoulder difficulties. Dr. Safman noted:
On examination, the patient has abduction to 180 degrees and forward flexion to 180 degrees. Shoulder adduction is to 50 degrees, external rotation to 90 degrees, and internal rotation to 70 degrees. Strength, sensation and reflex examination of the upper extremity is within normal limits.
Based upon these findings, and using the Guides of the Evaluation of Permanent Impairment, Fourth Edition, Dr. Safman assigned the claimant a 1% disability rating to the upper extremity which computes to a 1% whole body disability rating.
Ark. Code Ann. § 11-9-704(c)(1) requires that any determination of permanent impairment be supported by "objective and measurable physical or mental findings." Ark. Code Ann. § 11-9-102(16) defines objective findings as:
. . . those findings which cannot come under the voluntary control of the patient. In determining physical or anatomical impairment, neither a physician, nor any other medical provider, an Administrative Law Judge, a Workers Compensation Commission, nor the courts may consider the complaints of pain; for the purpose of making physical or anatomical impairment ratings to the spine, straight leg raising tests or range of motion tests shall not be considered objective findings. Medical opinions addressing compensability and permanent impairment must be stated within a reasonable degree of medical certainty.
This Commission has previously held that range of motion tests are tests which allow the claimant to voluntarily control the outcome. Therefore, pursuant to Ark. Code Ann. § 11-9-102(16) such tests do not provide objective findings. Although the physicians in the case relied upon the AMA Guides to the Evaluation of Permanent Impairment, the guides must give way to the statutory definition of objective findings as defined by the General Assembly. Impairment ratings pursuant to the guide which are based upon subjective criteria such as range of motion cannot, and do not, supersede the statutory definition of objective findings. See Southern v. Whirlpool Corp., Full Commission Opinion, April 12, 1996, (Claim No. E413412); Wallace v. Southwestern Sales, Full Commission Opinion, Filed May 21, 1996, (Claim No. E313660); and Hulsey v. Rockline Industries and Wausau Insurance Company, Full Commission Opinion, Filed March 7, 1995, (Claim No. E400928).
It is clear that claimant's impairment rating of 8% is based solely upon range of motion tests. Since we have found that range of motion tests are not objective and measurable findings, the impairment ratings based upon such tests are not compensable. Therefore, I find that claimant has failed to prove by a preponderance of the evidence that she sustained an impairment rating supported by objective and measurable physical findings.
I am not persuaded by the majority's analysis that claimant's rating based upon a restricted range of motion is supported by a diagnosis of capsulitis and fracture contracture.
Dr. McLeod's mention of "capsulitis" and "fracture contracture", does not amount to actual objective medical "findings." Dr. McLeod merely stated that claimant had a restriction of range of motion "compatible with fracture contracture and capsulitis about the right shoulder." Appellant's limitation could clearly come under his voluntary responses, his manipulation and control. See Duke v. Regis Hair Stylist, 55 Ark. App. 327, 935 S.W.2d 600 (1996)." Without any other objective tests to render a positive result claimant has failed to prove the compensability of his claim. Cox v. CFSI Temporary Employment, ___ Ark. App. ___, ___ S.W.2d ___ (1997). Other than the range of motion tests, Dr. McLeod did not perform any other objective tests to render a positive result for the fracture contracture and capsulitis. Absent objective testing for fracture contracture and capsulitis, these cannot be actual objective findings since they are based upon a range of motion test. Furthermore, it has never been established that Dr. McLeod would have made this same statement if he had arrived at the same minimal range of motion findings as Dr. Safman. The very fact that these two competent physicians arrived at two separate range of motion findings and two separate impairment ratings is an indicator in and of itself that the assumption of an objective basis for the range of motion results is just that, an assumption, not grounded in objective medical findings. An impairment rating based upon a diagnosis, does not satisfy the objective measurable medical findings requirement. The law is clear. Objective findings are necessary for an impairment rating.
Finally, I feel compelled to address the majority's opinion sustaining the 8% impairment rating based upon the objective finding of multiple humerus fracture. Neither Dr. Jansen, Dr. McLeod, nor Dr. Safman saw fit to assign an impairment rating based upon a completely healed fracture with a normal neurovascular exam. The objective finding relied upon by the majority is the claimant's initial x-ray after her injury. The majority has failed to consider that this fracture has healed, no longer resulting in the objective finding of multiple humerus fracture. A healed fracture is no longer a fracture, and thus, no longer a present, objective finding. In my opinion, the majority has misapplied our own requirement that the Guides to the Evaluation of Permanent Impairment (4th ed. 1993) (exclusive of any section referring to pain, or straight leg raising or range of motion tests) be used in the assessment of all anatomical impairments, but have also misapplied the Court of Appeals decision that range of motion testing renders subjective findings which cannot be the basis for an impairment rating. Cox v. CFSI, supra. See Commission Rule 34. Our adoption of The Guides was not an act done arbitrarily by the Commission, but rather an act required by the General Assembly as set forth in Ark. Code §§ 11-9-519(h), 11-9-520(h) and 11-9-521(g). Act 796 of 1993 placed a sunset provision on the guide adopted by the Commission unless the provision was reenacted by the General Assembly. For over three years The Guides have served as our means of assigning permanent impairment ratings. The General Assembly could have allowed our rating guide to simply fade away, if the General Assembly perceived it to be an unfair or improper means to assign permanent impairment ratings. Act 260 was specifically enacted "to assure that the impairment rating guide adopted by the Commission will remain in effect until otherwise provided by law."
Nowhere in The Guides to the Evaluation of Permanent Impairment (4th ed. 1993) is there any support or basis for the 8% impairment rating unless one relies upon impermissible range of motion testing. I simply cannot see fit to disregard our rules, the General Assembly's reaffirmation of our impairment rating guide, or the express holding of the Court of Appeals regarding subjective findings. Therefore, I must respectfully dissent.
MIKE WILSON, Commissioner