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Dean v. City of Little Rock

Before the Arkansas Workers' Compensation Commission
Jan 20, 2010
2010 AWCC 12 (Ark. Work Comp. 2010)

Opinion

CLAIM NO. F602881

OPINION FILED JANUARY 20, 2010

Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.

Claimant represented by the HONORABLE GARY DAVIS, Attorney at Law, Little Rock, Arkansas.

Respondents No. 1 represented by the HONORABLE BETTY J. HARDY, Attorney at Law, Little Rock, Arkansas.

Respondent No. 2 represented by DAVID B. SIMMONS, Attorney at Law, Little Rock, Arkansas.

Decision of Administrative Law Judge: Reversed in part, and affirmed in part.


OPINION AND ORDER

The claimant appeals an Administrative Law Judge's April 20, 2009 opinion which applied the combined values tables of the American Medical Association's Guides to the Evaluation of Permanent Impairment, (4th Ed. 1993) (the Guides) to calculate the permanent impairment rating for separate injuries, and which did not award benefits for a 37% rating for the claimant's antalgic gait, under Table 36 of the Guides. The respondents cross-appealed, arguing that the award of benefits for the additional permanent partial impairment rating for the sciatic injury and for the antalgic gait was contrary to the evidence and the law, but that the combination of ratings was appropriate.

After a de novo review of the entire record, the Full Commission reverses, in part, and affirms, in part, the opinion of the Administrative Law Judge.

I. PROCEDURAL HISTORY

A hearing was held on January 20, 2009, on the issues of the extent of permanent impairment, vocational rehabilitation, and controversion, and on April 20, 2009, the Administrative Law Judge filed his opinion. The Administrative Law Judge first accepted the stipulations that the employee/employer/insurance carrier relationship existed on or about March 6, 2006, at which time the claimant sustained admittedly compensable injuries to his ankle and knee, and that the claimant earned an average weekly wage of $944.49, which would yield maximum weekly compensation rates for 2006 of $488.00 for temporary total disability benefits and $366.00 for permanent partial disability benefits.

The Administrative Law Judge then found that the claimant established by a preponderance of the evidence that he is entitled to benefits for a permanent anatomical impairment pursuant to Section d of Table 36 on page 3/76 of theGuides, based on his prescribed use of a short leg brace, noting that, "under the terms of the Guides, this rating cannot be combined with any other impairments to the lower extremity."

The Administrative Law Judge further found that, in the alternative to a rating pursuant to Table 36, the claimant also established by a preponderance of the evidence that he is entitled to benefits for permanent anatomical impairment for his knee condition, for his ankle condition, and for his sciatic nerve injury and impairment. The Administrative Law Judge combined these impairments to find that the claimant was entitled to 129.9 weeks of permanent partial disability benefits.

The Administrative Law Judge then found that the claimant's permanent impairment rating should not be based upon Table 36, because the Guides provide methodology for calculating separate impairments to the ankle, knee, and sciatic nerve.

The Administrative Law Judge also found that the respondents did not controvert the claimant's entitlement to 58.8 weeks of permanent partial disability benefits, but that they did controvert the remaining weeks of permanent partial disability benefits to which the claimant is entitled. He awarded the claimant's attorney an attorney's fee on the 71.1 weeks of permanent partial disability benefits controverted by the respondents. The claimant's attorney also received a 12% fee on 11.8 weeks of benefits originally unpaid due to a typographical error in a doctor's report.

II. ADJUDICATION

A. Permanent Anatomical Impairment

The Arkansas Workers' Compensation Commission has adopted theGuides, to be used in the assessment of permanent anatomical impairment, pursuant to Ark. Code Ann. Section 11-9-521(h). Commission Rule 099.34.

The claimant sought permanent anatomical impairment ratings, for the purposes of permanent partial disability benefits, for his antalgic gait, knee ligament laxity, ankle derangement, and a sciatic nerve injury located in the thigh. The impairment rating for the antalgic gait is found in Table 36 of the Guides, while the other injuries are addressed in other subsections of Section 3.2 of the Guides.

1. Antalgic Gait

The Administrative Law Judge issued a permanent anatomical impairment rating for the claimant's antalgic gait, after finding that objective findings supported the rating, pursuant to Section d of Table 36 of Section 3.2b, Gait Derangement. Guides at p. 3/75. The Administrative Law Judge then determined that no award of benefits was available for this rating, because of the language of Section 3.2b accompanying Table 36 of the Guides:

This part may serve as a general guide for estimating many lower extremity impairments. The lower limb impairment percents shown in Table 36 should stand alone and should not be combined with those given in other parts of Section 3.2. Whenever possible, the evaluator should use the more specific methods of those other parts in estimating impairments.
Guides, at p. 3/75 (emphasis in original).

The Full Commission finds that, according to the language of Table 36, the claimant is not entitled to a rating for the antalgic gait. The Guides are clear that Table 36 is applicable only when a rating under a more specific section of the Guides cannot be made and that a rating under Table 36 is not made in addition to those more specific ratings. The claimant has specific ratings addressing his injuries, obviating the need for a gait derangement rating under Table 36. The issue of the basis of the rating is moot, as no rating is available to the claimant for gait derangement in these circumstances, and therefore, the Full Commission reverses the Administrative Law Judge's award of a rating and his finding that the rating was supported by objective findings.

2. Ankle Derangement

The Administrative Law Judge found that the permanent anatomical impairment rating for his ankle injury fell under Ark. Code Ann. Sec. 11-9-521(a)(11), for the foot, and not under Ark. Code Ann. Sec. 11-9-521(a)(4), for the leg between the knee and the ankle. The Administrative Law Judge reasoned that the ankle is not between the ankle and the knee, following Milburn v. Concrete Fabricators, Inc., 18 Ark. App. 23, 709 S.W.2d 822 (1986), andTaylor v. Pfeiffer Plbg. Htg. Co., 8 Ark. App. 144, 648 S.W.2d 526 (1983). The Full Commission affirms this finding of the Administrative Law Judge.

The Court of Appeals has stated that the question of whether an injury is scheduled is a primarily one of law, having nothing to do with the way that a physician characterizes an injury.Taylor, supra at 146. Similarly, the question of which subsection of the schedule found at Ark. Code Ann. Sec. 11-9-521 within which an injury falls is a matter of law. We are called upon in this instance to interpret the statute. Recently, the Court of Appeals gave this outline for statutory interpretation inHempstead Cty. Hunting Club v. Ark. P.S.C., CA 08-128 (Ark. App. 6-24-2009) p7-9:

The question of the correct interpretation and application of an Arkansas statute is a question of law, which we decide de novo. Cooper Realty Inv., Inc. v. Arkansas Contractors Licensing Bd., 355 Ark. 156, 160, 134 S.W.3d 1, 3 (2003); see also Baker Refrigeration Systems, Inc. v. Weiss, 360 Ark. 388, 395, 201 S.W.3d 900, 903 (2005). When examining an issue of statutory construction, our cardinal rule is to give effect to the intent of the legislature. Arkansas Gas Consumers, Inc. v. Arkansas Public Service Comm'n, 354 Ark. 37, 49, 118 S.W.3d 109, 118 (2003). Where the language of a statute is clear and unambiguous, this court determines legislative intent from the ordinary meaning of the language used. McMickle v. Griffin, 369 Ark. 318, 323, 254 S.W.3d 729, 735 (2007). The statute should be construed so that no word is left void, superfluous, or insignificant; and meaning and effect must be given to every word in the statute if possible. Kildow v. Baldwin Piano Organ, 333 Ark. 335, 338-39, 969 S.W.2d 190, 191-92 (1998).

Where the meaning is unclear, our review becomes an examination of the whole act. Barclay v. First Paris Holding Co., 344 Ark. 711, 718, 42 S.W.3d 496, 500 (2001). We reconcile provisions to make them consistent, harmonious, and sensible in an effort to give effect to every part. Id. This court looks to the language of the statute, the subject matter, the object to be accomplished, the purpose to be served, the remedy provided, the legislative history, and other appropriate means that shed light on the subject. Arkansas Gas Consumers, Inc., 354 Ark. at 49-50, 118 S.W.3d at 116.

. . . This court does not engage in statutory interpretations that defy common sense and produce absurd results. Southwestern Bell Telephone, L.P. v. Director of Arkansas Employment Sec. Dep't, 93 Ark. App. 303, 309, 218 S.W.3d 317, 321 (2005).

The statutory language in question is found in Ark. Code Ann. Section 11-9-521(a) which establishes a schedule of permanent injuries. Either Section 11-9-521(a)(4), "leg amputated between the knee and the ankle," or Section 11-9-521(a)(11) "foot amputated," applies to the claimant's ankle injury. There is no other section of the statute which could be argued to apply to the ankle.

Taking the literal meaning of the statutory provisions, as directed by the courts, 11-9-521(a)(11) must include ankle injuries, because 11-9-521(4) excludes the ankle with the words "between the knee and the ankle." Firstly, "between" is defined as "in the time, space, or interval that separates" or "separating from." Webster's Ninth Collegiate Dictionary, p. 146. To give full meaning to the phrase "leg amputated between the knee and the ankle," the conclusion must be that the body part described includes neither the knee nor the ankle, since the part described is the leg separating the knee and the ankle.

Secondly, to find that the body part described in subsection (a)(11) includes the ankle, one must also find that it includes the knee. It would be absurd to state that the body part "between the knee and ankle" includes the ankle but not the knee. Further, this conclusion is contraindicated by the statute itself, in Ark. Code Ann. Sec. 11-9-521(a)(3) which identifies a different scheduled body part, "leg amputated at the knee, or between the knee and the hip. . ." Subsection (a)(3) addresses the knee, therefore it cannot appear again as a different scheduled injury under (a)(11). As stated above, an interpretation which renders a part of the statute absurd is proscribed.

Thirdly, the finding that the ankle falls within a scheduled injury to the foot creates no absurdity or conflict with another provision of the statute.

Fourthly, this result, that the ankle injury falls within a scheduled injury to the foot, is consistent with analogous case law. In Taylor v. Pfeiffer Plbg. Htg. Co., 8 Ark. App. 144, 648 S.W.2d 526 (1983), the claimant suffered a crush injury to his left shoulder and chest, presenting a question as to whether the injury was to the body as a whole or a scheduled one, defined as an "arm amputated at the elbow, or between the elbow and shoulder. . ." The Court of Appeals stated that the test of whether the shoulder injury is scheduled is "primarily a question of law and has nothing to do with whether a doctor relates the effects of the injury to the arm." The medical record showed that the damage existed in the shoulder, and not in between the shoulder and the arm, but actually in the joint itself, and therefore the injury was to the body as a whole for purposes of impairment. The shoulder was not "between the shoulder and the arm." The court came to the same conclusion inMilburn v. Concrete Fabricators, 18 Ark. App. 23, 26, 709 S.W.2d 822, ___ (1986), that a hip injury was to the body as a whole, and not a scheduled injury to the "leg amputated at the knee, or between the knee and the hip:"

It is clear that the appellant's problem is not between the hip and the knee. While medically speaking, a hip may be considered a part of the leg, from a legal point of view, a hip injury is an injury to the body as a whole under the Workers' Compensation Law.

If the hip is not between the knee and the hip, and the shoulder is not between the shoulder and the elbow, then the ankle cannot be between the ankle and the knee.

The rules of statutory construction and common sense require that the ankle injury falls within the schedule for an injury to the foot. The doctors' opinions are crucial in determining the location of the damage, which in this case is in the ankle itself, but as to the application of the law, their opinion is meaningless. The Full Commission finds that the claimant's ankle injury falls under Ark. Code Ann. Sec. 11-9-521(a)(11) and affirms the Administrative Law Judge on this point.

3. Sciatic Nerve Injury

1. The claimant suffered a nerve injury in his thigh, between the hip and knee, which is referred to in the record and the Administrative Law Judge's opinion as a sciatic nerve injury. Dr. Baskin gave the claimant a rating of 42% for this injury to the lower extremity. In his deposition, Dr. Baskin explained that the sciatic nerve is a large nerve that comes out of the low back, around the hip and buttock, and goes into the back of the thigh. Dr. Baskin testified that just above the knee, the sciatic nerve branches into the posterior tibial nerve and the peroneal nerve, "[a]nd this nerve appeared to be damaged around that area from the nerve conduction studies that were done." Dr. Baskin's testimony that the peroneal nerve, a branch of the sciatic nerve, was where the damage was located coincides with the impairment rating Dr. Baskin applied to that injury, of 42%, under Table 68, for sensory nerve deficits. This rating is supported by Dr. Baskin's subjective evaluation but also by his objective EMG/NCV nerve studies. Dr. Baskin also used Table 39, which is based upon totally subjective strength testing to arrive at a rating of 37%. The Full Commission finds that the appropriate permanent anatomical rating for the claimant's damage to the peroneal branch of sciatic nerve is 42% under Table 68, on page 3/89 of the Guides, affirming the Administrative Law Judge.

4. Combined Ratings

The claimant also appeals on the issue of the combination of the various ratings to the claimant's lower extremity (17% to the lower extremity for knee ligament laxity, 30% to the foot for ankle derangement, 42% to the leg between the knee and hip for sciatic nerve injury and 37% for antalgic gait), arguing that the scheduled injury statute defines the number of weeks of benefits to which a claimant is entitled, which the Administrative Law Judge impermissibly reduced by combining the three ratings.

The Commission has adopted the Guides for the purposes of carrying out Ark. Code Ann. Section 11-9-521, the scheduled injury statute. Section 3.2 of the Guides addresses the lower extremity and states that if "the patient has several impairments of . . . different parts, such as the ankle and a toe, the whole-person estimates for the impairments are combined" pursuant to the Combined Values Chart.Guides at p. 3/75. The Administrative Law Judge attempted to satisfy both the Legislative intent expressed in the schedule and language of the Guides by reducing the impairment ratings to each specific body part by the same factor that the Combined Values Chart reduced the ratings as expressed to the body as a whole. The Full Commission disagrees with this complicated and unnecessary method.

While the Guides are the adopted method of assessing impairment, the Commission is still bound to follow the statutes first. Therefore, for example, to the extent that theGuides rely solely upon subjective tests such as active range of motion or complaints of pain, the Commission does not utilize theGuides. Similarly, the combination of impairment ratings for separate body parts conflicts with the Legislative intent in scheduling injuries to those separate parts. Ark. Code Ann. Section 11-9-521 states:

(a) An employee who sustains a permanent compensable injury scheduled in this section shall receive . . . weekly benefits in the amount of the permanent partial disability rate attributable to the injury, for that period of time set out in the following schedule: . . .

(3) Leg amputated at the knee, or between the knee and the hip, one hundred eighty-four (184) weeks;

(4) Leg amputated between the knee and the ankle, one hundred thirty-one (131) weeks; . . .

(11) Foot amputated, one hundred thirty-one (131) weeks; . . .

(f) Compensation for permanent partial loss or loss of use of a member shall be for the proportionate loss or loss of use of the member. . .

Under this schedule, there is no justification for combining according to the Guides' method the ratings to body parts falling under the separate sub-sections. The claimant's ankle injury, falling under the schedule as an injury to the foot, should not be combined with any injury to a different member. Therefore, the Administrative Law Judge erred in attempting to combine the ankle rating with the other two ratings to the knee and to the upper leg.

Where the claimant has two separate impairment ratings to "the knee, or between the hip and the knee," under Ark. Code Ann. Section 11-9-521(a)(3), then a combination of the ratings to that member according to the Guides makes sense, to determine the appropriate amount of "permanent partial loss of use of the member." The claimant has a rating of 17% to the knee (which is an injury to the lower extremity under Ark. Code Ann. Section 11-9-521(a)(3)), and a rating of 42% for an injury to the peroneal branch of the sciatic nerve (which is also an injury to the lower extremity under Ark. Code Ann. Section 11-9-521(a)(3), combination is warranted under theGuides' Combined Values Chart on page 322.

The weeks of benefits payable for these ratings do not exceed the weeks payable for the amputation of the entire leg as provided in Ark. Code Ann. Section 11-9-521(a)(3). The entire leg is valued at 184 weeks. The value of the rating to the foot is 39.30 weeks. The combined value of the ratings to the knee (17%) and the sciatic nerve in the leg between the hip and knee (42%) is 52%, which is equivalent to 95.68 weeks. The total value of these ratings is 134.98 weeks.

The Administrative Law Judge's combination of the ratings of different members is unnecessary under Ark. Code Ann. Section 11-9-521 and results in a reduction of benefits unintended by that statute. Therefore, the Full Commission reverses the

Administrative Law Judge's decision to combine the three ratings. The Full Commission finds that the claimant is entitled to a rating of 30% to the foot for a total of 39.30 weeks, and that the claimant is entitled to a rating of 52% to the knee or leg between the hip and knee for a total of 95.68 weeks.

III. Conclusion

After a de novo review of the entire record, the Full Commission finds that:

A. There is no impairment rating available to the claimant for his gait derangement because of his more specific lower extremity impairments, according to the Guides;

B. The permanent anatomical impairment rating for the claimant's ankle injuries is a rating to the foot, pursuant to Ark. Code Ann. Section 11-9-521(a)(11);

C. The claimant is entitled to a permanent anatomical impairment rating in the amount of 30% to his foot, for his ankle injuries, pursuant to 11-9-521(a)(11);

D. The claimant is entitled to a permanent anatomical impairment rating of 42% to the lower extremity for the injury to the peroneal branch of his sciatic nerve located above his knee, pursuant to Table 68 of Section 3.2 of the Guides;

E. The claimant is entitled to a permanent anatomical impairment to his "knee or his leg between the hip and knee" pursuant to 11-9-521(a)(3) in the amount of 52%, which is the combination of the 17% rating to the lower extremity for his knee injury, and 42% rating to his leg between the hip and knee for the damage to the peroneal branch of his sciatic nerve, pursuant to the Combined Values Chart of the Guides;

F. The claimant is entitled to permanent partial disability benefits as follows:

1. permanent anatomical impairment to the foot (ankle injury), 30% of 131 weeks, or 39.3 weeks;

2. permanent anatomical impairment to "the knee or leg between the hip and knee," 52% of 184 weeks, or 95.68 weeks;

For a grand total of 134.68 weeks of benefits.

G The respondents initially accepted 47 weeks of benefits. Upon notice of a typographical error, the respondents accepted an additional 11.8 weeks of benefits, upon which the claimant's attorney is entitled to 12% attorney's fee. The claimant's attorney is also entitled to an attorney's fee on the 75.88 weeks of benefits controverted by the respondents and currently due the claimant.

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. Sec. 11-9-809 (Repl. 2002).

Since the claimant's injury occurred after July 1, 2001, the claimant's attorney's fee is governed by the provisions of Ark. Code Ann. Sec. 11-9-715 as amended by Act 1281 of 2001. For prevailing on this appeal before the Full Commission, claimant's attorney is hereby awarded an additional attorney's fee in the amount of $500.00 in accordance with Ark. Code Ann. Sec. 11-9-715(b) (Repl. 2002).

IT IS SO ORDERED.

A. WATSON BELL, Chairman

PHILIP A. HOOD, Commissioner

Commissioner McKinney concurs, in part, and dissents, in part.

CONCURRING AND DISSENTING OPINION

I respectfully concur in part and dissent in part. Specifically, I concur in the finding that the claimant is not entitled to permanent impairment for gait derangement, the finding the claimant is entitled to permanent impairment for his Sciatic nerve injury and the finding that the impairments should not be combined. However, I must dissent from the finding the ankle impairment is subject to the schedule for the foot.

I cannot agree with the majority's finding that the claimant's permanent anatomical impairment associated with his ankle should be subject to the schedule for the foot contained in Ark. Code Ann. § 11-9-521(a)(11) as opposed to Ark. Code Ann. § 11-9-521(a)(4) which contains the schedule for the leg between the ankle and the knee. I would reverse this finding.

Dr. Kulik assessed the claimant's impairment rating for his ankle injury by listing an amount for the body as a whole, an amount for the lower extremity and an amount for his foot. The claimant wants the rating of 30% to the foot because it results in more permanent partial disability. The number of weeks for the amputation of the foot is 131 weeks. See, Ark. Code Ann. § 11-9-521(a)(11). The number of weeks for the amputation of the leg between the knee and the ankle is also 131 weeks. See, Ark. Code Ann. § 11-9-521(a)(4). The foot can be amputated without taking the ankle. It is clear that the ankle is part of the leg, and not the foot. Further, a review of the medical records demonstrates that the appropriate rating is to the lower extremity. Dr. Baskin, in his rating of the claimant, stated that the permanent anatomical impairment rating for the claimant's ankle was 12% to the lower extremity. "He has a rating per Dr. Kulik of 9% to the whole person based on the foot and ankle measurements, giving him a 12% lower extremity impairment rating." Accordingly, I find that the more appropriate permanent anatomical impairment rating for the claimant's ankle injury is the 21% to the lower extremity. Therefore, I must dissent from the majority's finding.

The claimant has also asked for a permanent anatomical impairment rating associated with his sciatic nerve injury. I agree with the majority. However, I note that I am constrained to agree with this finding due to the Courts holding in Singleton v. City of Pine Bluff, Ark. App, ___, ___ S.W.3d ___(2008).

Therefore, for all the reasons set forth herein, I respectfully concur in part and dissent in part from the majority opinion.

KAREN H. McKINNEY, Commissioner


Summaries of

Dean v. City of Little Rock

Before the Arkansas Workers' Compensation Commission
Jan 20, 2010
2010 AWCC 12 (Ark. Work Comp. 2010)
Case details for

Dean v. City of Little Rock

Case Details

Full title:TERRELL DEAN, EMPLOYEE CLAIMANT v. CITY OF LITTLE ROCK, EMPLOYER…

Court:Before the Arkansas Workers' Compensation Commission

Date published: Jan 20, 2010

Citations

2010 AWCC 12 (Ark. Work Comp. 2010)