Houston v. Robertson Bridge Grading Division

Full title: TRACY HOUSTON, EMPLOYEE, CLAIMANT v. ROBERTSON BRIDGE GRADING DIVISION…

Court: Before the Arkansas Workers' Compensation Commission

Date published: Apr 9, 1998

1998 AWCC 141 (Ark. Work Comp. 1998)

Opinion

CLAIM NO. E417199

OPINION FILED APRIL 9, 1998

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

Claimant represented by BILL ETTER, Attorney at Law, Jonesboro, Arkansas.

Respondent represented by RICHARD LUSBY, Attorney at Law, Jonesboro, Arkansas.

Decision of Administrative Law Judge: Reversed.

OPINION AND ORDER

[2] Respondent appeals from a decision of the Administrative Law Judge filed July 17, 1997 finding that claimant sustained a physical impairment rating of 15% to the body as a whole as a result of his compensable shoulder injury. Based upon our de novo review of the entire record, we find that claimant has failed to prove that he sustained a physical impairment rating greater than 6% to the body as a whole.

Claimant sustained an admittedly compensable injury to his right shoulder on September 1, 1994. At the first hearing held on July 24, 1996, it was determined that claimant sustained a nonwork-related independent intervening event on December 19, 1995, which resulted in a prolonged period of incapacity and need for medical treatment. That finding was affirmed by the Full Commission on appeal. The sole issue litigated at the June 18, 1997, hearing is the extent of claimant's permanent partial disability, including whether or not claimant sustained any wage loss disability over and above his physical impairment rating. At the hearing, claimant contended that he sustained a permanent impairment rating of 15% to the body as a whole and is entitled to additional compensation for wage loss over and above his physical impairment rating. Conversely, respondent contended that claimant sustained no more than a 6% physical impairment rating to the body as a whole and is not entitled to wage loss disability. The Administrative Law Judge found that claimant sustained a 15% physical impairment rating but further found that claimant was not entitled to wage loss disability benefits as claimant's waiver of vocational rehabilitation benefits operated to bar any wage loss disability pursuant to Ark. Code Ann. § 11-9-505(b)(3). Respondent lodged a timely appeal of the Administrative Law Judge's finding with regard to claimant's physical impairment rating. Claimant did not appeal the finding that claimant is not entitled to any wage loss disability benefits as a result of his waver of vocational rehabilitation. Accordingly, we affirm this finding of the Administrative Law Judge. However, after reviewing the evidence impartially, without giving the benefit of the doubt to either party, we reverse the finding that claimant sustained a 15% impairment to the body as a whole. Based upon our de novo review of the entire record, we find that claimant has only proven entitlement to a 6% impairment to the body as a whole as a result of his compensable shoulder injury.

Claimant's treating physician, Dr. Henry F. Stroope, assigned claimant a 25% permanent partial impairment to the right upper extremity which is the equivalent of a 15% whole person impairment. In his February 1, 1996, correspondence to respondent's representative Dr. Stroope stated that the impairment rating was not based upon range of motion but was based upon "acomplete resection of his acromioclavicular joint . . ." However, when Dr. Stroope's medical records are reviewed it is not clear that claimant actually underwent a complete resection of his acromioclavicular joint. Dr. Stroope's operative report was not introduced into evidence. However, his office notes for claimant's follow-up visits describe the surgical procedure which was performed on claimant. In Dr. Stroope's August 15, 1995, office note Dr. Stroope states "Tracy presents in follow-up today for his right acromioclavicular joint resection with anterior acromioplasty and subacromial decompression about one week ago." Dr. Stroope's September 12, 1995, office report describes the procedure as follows: "Tracy presents in follow-up today for his open subacromial decompression of the right shoulder with anterior acromioplasty and distal clavicle resection." Neither of the procedures outlined in these office notes amounts to complete resection of claimant's acromioclavicle joint. In fact, when Dr. Larry Mahon performed an independent medical evaluation of the claimant on March 7, 1996, Dr. Mahon ordered comparative x-rays of claimant's shoulders. Dr. Mahon noted "These films demonstrate resection of the outer end of the right clavicle. There is rather pronounced up righting of the clavicle from the scapula." These objective diagnostic films only reveal a resection of the distal clavicle, they do not reveal a complete resection of claimant's acromioclavicle joint. If a complete resection of the acromioclavicle joint was performed, it would show up on x-rays.

After performing the independent medical evaluation, and reviewing the comparative x-rays of claimant's shoulder, Dr. Mahon assigned claimant a 10% permanent impairment of the upper extremity which equates to a 6% whole body impairment as a result of the resection of the distal clavicle joint.

Ark. Code Ann. § 11-9-522(g) provides that the Commission shall adopt an impairment rating guide to be used in the assessment of anatomical impairment and specifically provides the guide shall not include pain as a basis for the impairment. In compliance with this statutory mandate, the Commission adopted The AMA Guides to the Evaluation of Permanent Impairment, Fourth Edition with the enactment of Commission Rule 34. Rule 34 specifically states:

That The Guides are adopted "exclusive at any section which refer to pain and exclusive of straight leg raising tests or range of motion tests when making physical or anatomical impairment ratings to the spine."

The Commission has adopted The Guides and to the extent thatThe Guides allow the use of subjective criteria for the establishment of an impairment rating, The Guides must give way to the statutory definition of objective findings as defined by the General Assembly. The portions of The Guides which are based upon subjective criteria cannot supersede the statutory definition established by the General Assembly. Therefore, to the extent that there is a conflict, the statutory definition as established by the General Assembly takes precedence over any subjective criteria set forth in The Guides.

Table 27 of the AMA Guides allows only a 24% impairment to the upper extremity for a resection of claimant's total shoulder. (Not 25% as assigned by Dr. Stroope). Claimant did not undergo this procedure. Rather, the objective diagnostic x-rays reveal that claimant had a resection of his distal clavicle which allows a 10% impairment of the upper extremity. Using table 3 of the Fourth Edition of the AMA Guides, a 10% impairment to the upper extremity equals a 6% whole body impairment. Dr. Stroope's office notes do indicate that claimant may have had some additional procedures such as a scraping of the joint performed about the acromioclavicle joint; however, since a complete resection of this joint was not performed, in our opinion, it would be inappropriate to utilize the impairment rating for a complete resection. Accordingly, we find that claimant has failed to prove by a preponderance of the evidence entitlement to the 15% whole body impairment assigned by Dr. Stroope. Rather, we find that the objective medical evidence reveals that claimant underwent a resection of his distal clavicle and is therefore entitled to no more than a 6% impairment rating to the body as a whole. Therefore, we reverse the decision of the Administrative Law Judge.

IT IS SO ORDERED.

ELDON F. COFFMAN, Chairman MIKE WILSON, Commissioner

Commissioner Humphrey dissents.