Opinion
CLAIM NOS. F012618, F012619 F107491
OPINION FILED APRIL 17, 2003
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by HONORABLE LAURA McKINNON, Attorney at Law, Fayetteville, Arkansas.
Respondents represented by HONORABLE WILLIAM C. FRYE, Attorney at Law, Little Rock, Arkansas.
Decision of the Administrative Law Judge: Affirmed.
OPINION AND ORDER
The respondents appeal and the claimant cross-appeals an Administrative Law Judge's opinion filed July 25, 2002. The Administrative Law Judge found that the claimant failed to prove she sustained a compensable shoulder injury on February 12, 2000, but that the claimant proved a compensable right shoulder injury on June 6, 2000. The Administrative Law Judge found that the claimant was not performing employment duties at the time of a December 26, 2000 incident, so that the claimant was not entitled to compensation for that incident. After reviewing the entire record de novo, the Full Commission affirms the opinion of the Administrative Law Judge.
I. HISTORY
The parties stipulated that the claimant, age 44, sustained a compensable back injury on February 12, 2000. The claimant testified that she twisted her back while lifting a resident. A doctor diagnosed "back strain" on February 12, 2000. The claimant testified that her shoulder began bothering her "Almost immediately after the back injury," but there is no record of complaints or treatment related to the claimant's shoulder contemporaneous with her back injury.
On April 18, 2000, the claimant described pain in her right shoulder and arm, and reported that she slept on her right shoulder. An x-ray of the right shoulder taken April 19, 2000 was negative.
The claimant testified that in June 2000, "A co-worker and I were turning a resident over. We had his pad, and I went to pull it over; and when I did, my arm just kinda blowed out. . . . The pain was so bad that I couldn't hardly move my arm at all." The claimant received emergency treatment on June 6, 2000, complaining of pain to her right upper arm. The claimant reported lifting a large patient at work that morning. A cervical spine series was taken on June 6, 2000, with the following findings:
There is straightening of the normal cervical lordosis, this may be due to patient positioning and/or spasm. There has been fusion of the C-2 and C-3 vertebral bodies, which may be congenital. The bony alignment is well preserved and the neuroforamen are widely patent.
IMPRESSION: No significant degenerative changes are identified.
RIGHT HUMERUS: Two views. There is no osseous or soft tissue abnormality.
Dr. Harry D. Starnes assessed shoulder pain and carpal tunnel syndrome on June 9, 2000. The claimant subsequently received an orthopedic examination and physical therapy. A magnetic resonance imaging of the right shoulder was taken on August 16, 2000, with the following findings:
The supraspinatus tendon shows edema near its insertion on the greater tubercle of the humerus. Full thickness tear is not clearly identified. No muscular retraction or atrophy is seen. Other components of the rotator cuff are normal. No joint effusion is seen and the glenoid labrum is intact as visualized.
IMPRESSION:
1. Intense high signal on T2 weighted images from the supraspinatus tendon near its insertion on the greater tubercle of the humerus. Partial tear is suspected. No muscular retraction or atrophy is noted.
2. Otherwise negative exam.
Dr. Bruce L. Safman reported on August 29, 2000, "Her MRI shows a tear in the supraspinatus tendon on the right side, and she is scheduled to undergo surgery for this next month." Dr. Safman took the claimant off work. Dr. Thomas Roberts performed an "arthroscopy of the glenohumeral joint with subacromial decompression" on September 12, 2000. Dr. Roberts returned the claimant to restricted work on November 10, 2000. On a form provided by the claimant's attorney on December 8, 2000, Dr. Roberts indicated that the claimant was temporarily totally disabled from December 12, 2000 until January 8, 2001. Dr. Roberts performed a "Closed manipulation of the right shoulder" on December 12, 2000.
The claimant testified:
Q. What happened on December the 26th, 2000? Tell me about the slip and fall.
A. Well, it was time to get off work. We were trying to go home.
Q. Tell the Judge first, was this during the big ice storm?
A. Yes, it was. . . . When it come time to get off work, the weather had got worse and he didn't want to take us home. So I told him I was going to drive. And when we started out — when I hit the driveway, I just slipped. . . .
Q. You had finished your shift; is that correct?
A. Yes.
Q. Had you clocked out?
A. Yes.
Q. And before this slip and fall, how many minutes had it been since you had clocked out?
A. Probably about 15 or 20 minutes, I think. . . .
Q. Was this slip in the building or out of the building?
A. It was outside the building. . . .
Q. What was your destination when you were departing the building?
A. I was headed home.
Q. What part of the body did you hit when you were injured?
A. I hit my head and then my hip. I fell on my right side.
Dr. Roberts returned the claimant to light work duty on January 4, 2001, and wrote to the claimant's attorney on April 4, 2001:
I last saw Ms. Nicholson on 2/21. Her final diagnosis was a rotator cuff strain with bursitis and subacromial impingement of the right shoulder with arthrofibrosis of the right shoulder. . . . She has permanent restrictions concerning the use of her shoulder. She has no lifting greater than 25 lbs. and no repetitive pushing, pulling or overhead work. . . . I do not feel that she had any pre-existing conditions of any significance associated with her injury.
Ms. Nicholson claimed entitlement to additional worker's compensation. The claimant contended that she continued to experience problems which were related to her February 12, 2000 compensable back injury. The claimant contended that she sustained a right shoulder injury on April 18, 2000, and that she re-injured her right shoulder on June 6, 2000. The claimant contended that she sustained a recurrence or aggravation of the February 12, 2000 compensable injury on December 26, 2000, when she slipped and fell in the parking lot. The claimant contended that she was entitled to temporary total disability compensation from February 16, 2001 to a date yet to be determined.
The respondents contended that any problems the claimant continued to experience were not related to the February 12, 2000 compensable back injury. The respondents contended that the claimant's shoulder problems were not related to her employment. The respondents contended that the claimant did not sustain a compensable injury on December 26, 2000.
The Administrative Law Judge found that the parties were to litigate the following issues:
(1) Whether the claimant sustained compensable injuries, and whether the claimant's continued problems were related to the February 12, 2000 compensable injury;
(2) Whether the claimant was entitled to temporary total disability compensation; and
(3) Reasonably necessary medical treatment.
After a hearing before the Commission, the Administrative Law Judge found that the claimant failed to prove she sustained a compensable injury to her shoulder on February 12, 2000. The Administrative Law Judge found that the claimant proved she sustained a compensable injury to her right shoulder on June 6, 2000. The Administrative Law Judge found that the claimant was not performing employment duties at the time of the December 26, 2000 incident, so that she was not entitled to worker's compensation for that incident.
The claimant does not appeal the Administrative Law Judge's finding that the claimant failed to sustain a compensable shoulder injury on February 12, 2000. However, the claimant contends that she is entitled to temporary total disability compensation from February 16, 2001 to a date yet to be determined. The respondents appeal the Administrative Law Judge's finding that the claimant sustained a compensable injury on June 6, 2000. The claimant appeals the Administrative Law Judge's finding that the claimant was not performing employment services at the time of the December 6, 2000 specific incident.
II. ADJUDICATION
A. The February 12, 2000 injury
The parties stipulated that the claimant sustained a compensable back injury on February 12, 2000. The Administrative Law Judge found that the claimant failed to prove she sustained a compensable shoulder injury on February 12, 2000. The claimant does not appeal the Administrative Law Judge's finding that the claimant did not injure her shoulder on February 12, 2000. The record does not indicate that the claimant sustained physical harm to her shoulder as a result of the February 12, 2000 compensable back injury. The Full Commission therefore affirms the Administrative Law Judge's finding that the claimant did not sustain a compensable shoulder injury on February 12, 2000. Nor does the record indicate that the claimant has suffered continued back problems as a result of the February 12, 2000 injury.
B. The June 6, 2000 injury
The Administrative Law Judge found that the claimant proved she sustained a compensable shoulder injury on June 6, 2000. The Full Commission affirms this finding. Ark. Code Ann. § 11-9-102(4)(A)(i) provides that a "compensable injury" is one arising out of and in the course of employment, caused by a specific incident identifiable by time and place of occurrence. The claimant must establish a compensable injury with medical evidence supported by objective findings. Ark. Code Ann. § 11-9-102(4)(D); Ark. Code Ann. § 11-9-102(16)(A)(i). The present claimant testified that she felt acute pain after moving a patient on June 6, 2000, and the medical evidence of record corroborates her testimony regarding this specific incident.
In his Concurring and Dissenting Opinion, Commissioner Yates asserts that there were only "minimal acute objective findings" to establish compensability with regard to the June 6, 2000 specific incident. But Act 796 of 1993 does not require the claimant to establish a compensable injury with "maximal" objective findings. The claimant must establish a compensable injury by medical evidence supported by objective findings, i.e., findings which cannot come under the claimant's voluntary control. Ark. Code Ann. § 11-9-102(16)(A)(i), supra. An August 2000 MRI showed "edema" in the claimant's shoulder, in addition to "Intense high signal on T2 weighted images." These are objective medical findings not within the claimant's voluntary control, and can be used to establish compensability. Foshee v. Spicer Manufacturing, Workers' Compensation Commission F005378 (Jan. 9, 2002). The dissent also essentially argues that there were no objective findings shown at surgery. We recognize that the operative note from September 12, 2000 included such findings as "glenohumeral joint appeared healthy. Humeral head and glenoid were normal." However, the surgeon also reported, "The rotator cuff had evidence of strain but no tear was noted." This evidence of a strain in the rotator cuff was another objective finding not within the claimant's voluntary control.
The Full Commission affirms the Administrative Law Judge's finding that the claimant sustained a compensable injury to her right shoulder on June 6, 2000.
C. The alleged December 26, 2000 injury
Act 796 of 1993, as codified at § 11-9-102(4)(B), provides that "compensable injury" does not include:
(iii) Injury which was inflicted upon the employee at a time when employment services were not being performed[.]
In the present matter, the Administrative Law Judge found that the claimant was not performing employment duties at the time of the alleged December 26, 2000 injury, and that the provisions of Act 796 barred an award. The Full Commission affirms the Administrative Law Judge's finding that the claimant was not performing employment services when she slipped on December 26, 2000. The claimant testified that she slipped on ice after clocking out and walking outside of the building to go to her car to go home. The Administrative Law Judge found that the claimant was not performing employment services at the time of this incident. We agree. See Hightower v. Newark Pub. Sch. Sys., 57 Ark. App. 159, 943 S.W.2d 608 (1997). In Hightower, the Court agreed with the Commission that the claimant was not entitled to compensation for an injury sustained when she fell on ice in a parking lot. Merely walking to and from one's car, even on the employer's premises, does not qualify as performing employment services pursuant to Act 796 of 1993.
The Full Commission has found compensability in instances where employees were injured while walking across a parking lot, if they were performing employment services. See, Thompson, Jr. v. Cavanaugh Motors, Workers' Compensation Commission E505691 (Sept. 11, 1996); Crossett School District v. Fulton, 65 Ark. App. 63, 984 S.W.2d 833 (1999). In the present matter, however, the preponderance of evidence supports the Administrative Law Judge's determination that the claimant was not performing employment services at the time of her December 26, 2000 fall. The claimant was merely walking to her car to go home and was not benefitting the employer in any way.
Even if the Full Commission did find that the claimant was performing employment services at the time of the December 26, 2000 specific incident, the evidence does not show that there was any physical harm which required medical services, as required by Ark. Code Ann. § 11-9-102(4)(A)(i). The record indicates that the claimant did not seek medical treatment as a result of her slip on ice on December 26, 2000. We have found no medical reports of a slip and fall or any symptoms related to same. The Full Commission affirms this finding of the Administrative Law Judge.
D. Temporary disability
An injured employee is entitled to temporary total disability compensation during that time that she remains within her healing period for the compensable injury, and is totally incapacitated to earn wages. Arkansas State Highway and Transportation Department v. Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981).
The claimant contended at the hearing that she was entitled to temporary total disability compensation from February 16, 2001 to a date yet to be determined. The Administrative Law Judge did not enter a finding with regard to temporary total disability, and the claimant notes this omission on appeal. The Full Commission finds that the claimant proved entitlement to temporary total disability compensation from August 29, 2000 through November 10, 2000. Dr. Safman took the claimant off work on August 29, 2000. The claimant underwent surgery on September 12, 2000 for her compensable right shoulder injury. The claimant was returned to work on November 10, 2000. The claimant was thus within her healing period and totally incapacitated to earn wages from August 29, 2000 through November 10, 2000. The claimant was again taken off work from December 12, 2000 until January 8, 2001; we find that the claimant proved entitlement to temporary total disability for this period as well. The preponderance of evidence does not show that the claimant was entitled to any additional temporary total disability compensation beyond these periods, including February 2001 and following.
Based on our de novo review of the entire record, the Full Commission affirms the Administrative Law Judge's finding that the claimant failed to prove she sustained a compensable shoulder injury on February 12, 2000, but that the claimant sustained a compensable shoulder injury on June 6, 2000. The claimant proved she was entitled to reasonably necessary medical treatment provided in connection with the June 6, 2000 compensable shoulder injury, including surgical treatment. We affirm the Administrative Law Judge's finding that the claimant did not sustain a compensable injury on December 26, 2000. The Full Commission awards temporary total disability compensation from August 29, 2000 through November 10, 2000, and from December 12, 2000 through January 8, 2001.
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, the claimant's attorney is hereby awarded an additional attorney's fee in the amount of $250.00 in accordance with Ark. Code Ann. § 11-9-715 (Repl. 1996).
IT IS SO ORDERED.
______________________________ OLAN W. REEVES, Chairman
Commissioner Turner concurs in part and dissents in part.
CONCURRING AND DISSENTING OPINION
I must respectfully concur in part and dissent in part from the principal opinion. Specifically, I concur in the finding that claimant proved a compensable injury to her shoulder on June 6, 2000; that she proved entitlement to reasonably necessary medical treatment for that injury; and that she is entitled to temporary total disability benefits from August 29, 2000 to November 10, 2000; and from December 12, 2000 to January 8, 2001. However, from all other findings of the principal opinion, I respectfully dissent.
I respectfully concur in part and dissent in part.
_______________________________ SHELBY W. TURNER, Commissioner
Commissioner Yates concurs in part and dissents in part.
CONCURRING AND DISSENTING OPINION
I respectfully concur in part and dissent in part from the majority's opinion. Specifically, I concur in the majority's finding that the claimant was not performing employment services at the time of her December 26, 2000, incident. I also concur in the majority's finding that the claimant failed to prove by a preponderance of the evidence that she sustained a compensable injury on February 12, 2000. However, I must respectfully dissent from the majority's finding that the claimant sustained a compensable injury on June 6, 2000, and the finding that the claimant was entitled to temporary total disability benefits from September 12, 2000, through November 10, 2000, and for the period December 12, 2000, through January 8, 2001. Based upon my de novo review of the record, I find that the claimant has failed to meet her burden of proof.
My review of the evidence indicates that the claimant's shoulder was symptomatic well before June 6, 2000, with no apparent work-related origin. For example, on direct examination, the claimant testified that, following the event of June 6, she felt a "sharp excruciating pain . . . through my shoulder, and my arm — I just couldn't hardly use it. It was severe pain." However, at a later point during direct examination, the claimant testified that, between April and June, 2000, her shoulder "gave me a great deal of trouble. I had trouble sleeping. I couldn't reach for anything. I could only move my arm down below my waist, and I could not raise it up without excruciating pain." Likewise, earlier in her testimony the claimant indicated that her shoulder gradually became worse during the time frame leading up to April 18, 2000, even to the point that she "couldn't hardly move it."
Also, the claimant's clinical presentation after June 6, 2000, has not been entirely consistent. During a consultation with Dr. Ben Dodge on June 27, 2000, the claimant referred to right forearm pain since June 12, 2000, rather than June 6. During that same evaluation, the claimant described a "pop" in her right arm while moving a patient. However, during a physical therapy evaluation on November 14, 2000, the claimant related shoulder pain while pulling a patient, but denied feeling or hearing any pop.
In my opinion, there are only tenuous or minimal acute objective findings to substantiate a finding of compensability as to the June 6, 2000, event. In particular, while the claimant's right shoulder MRI of August 16, 2000, showed some edema of the supraspinatous tendon and provided suspicion of a partial rotator cuff tear, the claimant's operative notes of September 12, 2000, reflected changes that were, in essence, mild and degenerative. Indeed, the claimant's shoulder was generally healthy, stable, and intact:
. . .She was found to have no posterior or anterior or inferior instability of the shoulder. . . . The patient's glenohumeral joint appeared healthy. Humeral head and glenoid were normal. The labrum was intact, probed and was stable. The anterior and posterior glenohumeral ligaments were healthy and were stable. The biceps root was stable. The biceps was stable as it exited the glenohumeral joint. The rotator cuff had evidence of strain but no tear was noted. It was intact to the humerus with no retraction or loss of fibers. The shoulder was checked through the anterior portal. No other abnormalities were noted. . . . The patient was noted to have a moderate amount of bursitis which was debrided with a shaver. The patient had a small anterior acromial spur.
In my opinion, it would require an impermissible degree of speculation and conjecture to concluded that the claimant's relatively minimal surgical findings were related to the event of June 6, 2000, given that she had been experiencing virtually the same symptoms since at least April, 2000. Conjecture and speculation, even if plausible, cannot take the place of proof. Ark. Dept. of Correction v. Glover, 35 Ark. App. 32, 812 S.W.2d 692 (1991). Dena Construction Co. v. Herndon, 264 Ark. 791, 575 S.W.2d 155 (1970). Arkansas Methodist Hospital v. Adams, 43 Ark. App. 1, 858 S.W.2d 125 (1993).
Therefore, for all the reasons set forth herein, I respectfully dissent from the majority's opinion finding that the claimant sustained a compensable shoulder injury on June 6, 2000. However, I respectfully concur in the majority's finding that the claimant failed to prove by a preponderance of the evidence that she sustained a compensable shoulder injury on February 12, 2000, and a finding that the claimant failed to prove that she sustained a compensable injury on December 26, 2000.
_______________________________ JOE E. YATES, Commissioner