Opinion
CLAIM NO. E213150
OPINION FILED JUNE 7, 1995
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE FLOYD M. THOMAS, JR., Attorney at Law, El Dorado, Arkansas.
Respondents represented by the HONORABLE MICHAEL ALEXANDER, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed.
OPINION AND ORDER
The respondents appeal an opinion and order filed by the administrative law judge on December 9, 1994. In that opinion and order, the administrative law judge found that the claimant's shoulder problems are causally related to her compensable neck injury and that the claimant is permanently and totally disabled. After conducting a de novo review of the entire record, we find that the claimant proved by a preponderance of the evidence that her shoulder problems are causally related to her compensable injury, and we find that she proved by a preponderance of the evidence that she is permanently and totally disabled as a result of the compensable injury. Therefore, we find that the administrative law judge's decision must be affirmed.
The claimant began working for the respondent employer in August of 1973, and she continued working for the respondent employer as a wrapper in the meat department for 19 years. Her duties included wrapping, packaging, and stocking meat. She sustained an admittedly compensable injury to her neck on July 20, 1992, when she experienced a sharp pain in her back, neck, and right arm as she was lifting a box of chicken. She initially was treated by her family physician, Dr. John Alexander. However, the respondent carrier ultimately referred her to Dr. Ernest Hartman, an orthopedic specialist. Dr. Hartman determined that he could not help the claimant, and he referred her to Dr. Wilbur Giles, a neurosurgeon. A MRI ordered by Dr. Giles revealed a herniated nucleus pulposus at C5-6 and at C6-7. Conservative measures failed to resolve the claimant's complaints of neck and shoulder pain, and, on November 6, 1992, Dr. Giles performed an anterior cervical discectomy and fusion at C5-6 and at C6-7. On March 8, 1993, Dr. Giles assigned a 10% permanent physical impairment rating to the body as a whole as a result of the claimant's neck injury, and he released her from his care.
Dr. Giles has indicated that the claimant initially received good relief from her neck and shoulder pain as a result of the surgery. However, he also indicated that she ultimately began to again complain of significant neck and shoulder pain. In this regard, on Thanksgiving Day of 1992, approximately three weeks after Dr. Giles performed the surgery, the claimant was holding her grandchild in her lap when the chair in which she was sitting collapsed, causing her to fall to the floor in a sitting position, and Dr. Giles indicated that she began complaining of increased neck and shoulder pain when he first saw her again after this fall, and he indicated x-rays taken subsequent to the fall showed that the fusion had decreased in height. The claimant testified that she experienced an increase in her neck and shoulder pain immediately after this fall, but she testified that her condition was essentially no worse after the fall than before.
The claimant also developed a frozen shoulder condition subsequent to the fall. According to Dr. Giles, the claimant became more apprehensive about her condition after the fall, and she essentially stopped using her arms and shoulders. As a result of this lack of movement, she ultimately developed a frozen shoulder condition in both shoulders. Dr. Giles referred the claimant to Dr. David Gilliam, an orthopedic surgeon, for treatment of this condition. After examining the claimant on February 17, 1993, Dr. Gilliam diagnosed a bilateral impingement syndrome of the shoulders, and he treated the condition conservatively with a subacromial bursal injection and physical therapy. However, the claimant's symptoms worsened, and Dr. Gilliam manually manipulated both shoulders while the claimant was under anesthesia. In addition, he performed an arthroscopy on the left shoulder. Although the claimant apparently obtained some relief from these procedures, she continued to experience problems with her shoulders as well as her neck. Dr. Gilliam determined that the claimant sustained a 20% permanent physical impairment to the body as a whole as a result of these problems with her shoulders. Both Dr. Gilliam and Dr. Giles have opined that the claimant's shoulder problems are causally related to her compensable injury.
The respondents contend that the claimant's fall is an independent intervening cause. In this regard, when an injury arises out of and in the course of employment, the original employer or carrier is responsible for every natural consequence that flows from the injury. Bearden Lumber Co. v. Bond, 7 Ark. App. 65, 644 S.W.2d 321 (1983). Consequently, when subsequent complications are the natural and probable result of the original injury, the employer remains liable. On the other hand, if the subsequent complications result from an independent intervening cause, the employer is relieved of liability for compensation benefits. However, the intervening incident must independently contribute to the claimant's condition before the employer is relieved of liability. Bearden, supra. Moreover, contrary to the arguments of the respondents, where there is a causal connection between the primary injury and the subsequent disability, there is no independent intervening cause unless the subsequent disability is triggered by activity on the part of the claimant which is unreasonable under the circumstances.Home Insurance Co. v. Logan, 255 Ark. 1036, 505 S.W.2d 25 (1974); Moss v. El Dorado Drilling Co., 237 Ark. 80, 371 S.W.2d 528 (1963); Aluminum Co. of America v. Williams, 232 Ark. 216, 225 S.W.2d 315 (1960); Guidry v. J R Eads Construction Co., 11 Ark. App. 219, 669 S.W.2d 483 (1984);Bearden Lumber Co. v. Bond, 7 Ark. App. 65, 644 S.W.2d 321 (1983); Lunsford v. Rich Mountain Electric Coop., 38 Ark. App. 188, 832 S.W.2d 291 (1992).
In the present claim, we find that the claimant's fall was not an independent intervening cause. In this regard, the evidence establishes that the claimant was simply sitting in a chair with her grandchild in her lap when the leg of the chair collapsed. Clearly, the act of sitting in a chair with a child in one's lap is not an unreasonable activity in itself. In addition, there is no evidence suggesting that the claimant was engaging in any sort of behavior which might have caused the chair to collapse. Moreover, there is no indication either of these activities were contrary to any limitations imposed by Dr. Giles. Therefore, we find that the fall was not caused by any activity by the claimant which was unreasonable under the circumstances and, thus, that the fall does not constitute an independent intervening cause which relieves the respondents of liability.
We also find that the shoulder problems suffered by the claimant are causally related to the her compensable neck injury. As discussed, the claimant experienced severe neck and shoulder pain after the occurrence of the injury on July 20, 1992, and Dr. Giles testified that her shoulder problems were caused by her avoidance of any use of her shoulders. With regard to the relationship of the shoulder problems to the neck injury, Dr. Giles stated the following:
I do believe that the frozen shoulders that Ms. Waters has are a result of the workmen's compensation injury. It is secondary to the fact that she had the neck problem and the fact that she did not use her shoulder girdle because of the intense neck and shoulder pain and, therefore, is related.
Likewise, Dr. Gilliam made the following comments in a letter dated April 2, 1993:
After researching the chart and contacting the patient directly by phone, and after speaking with her family physician, Dr. John Alexander, Jr., it is my opinion that her present shoulder symptoms are causally related to the on the job injury received in July of 1992. The reason I feel there is a causal relationship is because the patient denies any prior history of shoulder symptoms. Dr. Alexander has treated the patient for multiple musculoskeletal complaints, however, after a thorough review by him of his chart notes, he could find no previous specific complaint regarding shoulder symptoms. He has not previously treated Ms. Waters for any specific shoulder symptoms.
Based on the above findings I think it is more Likely than not that Ms. Waters' present symptoms had their onset and are causally related to the on the job injury of July 20, 1992.
In short, the evidence shows that the claimant had no shoulder problems whatsoever prior to the July 20, 1992, injury. However, subsequent to this injury, she began to experience severe shoulder pain as well as neck pain, and, due to the level of pain she was experiencing, she avoided any use of her shoulders. As a result of this lack of shoulder movement, she ultimately developed the frozen shoulder condition. Both Dr. Giles and Dr. Gilliam have opined that this condition was causally related to the compensable injury. Consequently, we find that the preponderance of the evidence establishes that the claimant's shoulder problems are causally related to the compensable injury.
In addition, we find that the preponderance of the evidence establishes that the claimant is permanently and totally disabled as a result of her compensable neck and shoulder injury. When determining the degree of permanent disability sustained by an injured worker, the Commission must consider the degree to which the worker's future wage earning capacity is impaired. In addition to medical evidence demonstrating the degree to which the worker's anatomical disabilities impair her earning capacity, the Commission must also consider other factors, such as the worker's age, education, work experience, and any other matters which may affect the worker's future earning capacity, including the degree of pain experienced by the worker. Ark. Code Ann. § 11-9-522 (1987); Tiller v. Sears, 27 Ark. App. 159, 767 S.W.2d 544 (1989). In considering the factors which may affect an employee's future earning capacity, we may consider the claimant's motivation to return to work, since a lack of interest or a negative attitude impedes our assessment of the claimant's loss of earning capacity. City of Fayetteville v. Guess, 10 Ark. App. 313, 663 S.W.2d 946 (1984); Oller v. Champion Parts Rebuilders, 5 Ark. App. 307, 635 S.W.2d 276 (1982). When it becomes evident that the worker's underlying condition has become stable and that no further treatment will improve the condition, the disability is deemed to be permanent. If the employee is totally incapacitated from earning a livelihood at that time, she is entitled to compensation for permanent and total disability. Minor v. Poinsett Lumber Manufacturing Co., 235 Ark. 195, 357 S.W.2d 504 (1962).
Likewise, an employee who is injured to the extent that she can perform services that are so limited in quality, dependability, or quantity that a reasonably stable market for them does not exist may be classified as totally disabled under the odd-lot doctrine. Lewis v. Camelot Hotel, 35 Ark. App. 212, 816 S.W.2d 632 (1991). The odd-lot doctrine recognizes that the obvious severity of some injuries may combine with other factors to preclude the employee from obtaining employment in any reasonably stable market, although the employee is not altogether incapacitated from work. Id. In this regard, the factors which may combine with the obvious severity of the employee's injury to place him in the odd-lot category are the employee's mental capacity, education, training and age.Id. If the claimant makes a prima facie showing that he falls in the odd-lot category, the respondents have the burden of going forward with evidence showing that "some kind of suitable work is regularly and continuously available to the claimant." Id.
In the present claim, the claimant is 60 years old, and she has a high school education. After graduating from high school in 1952, she worked at various assembly-type jobs until 1973. In 1973, she began working for the respondent employer as a meat wrapper, and she remained employed there until 1992, when she sustained the work-related neck injury. As discussed, the evidence shows that she sustained serious neck and shoulder injuries, and she has remained in pain almost constantly since that time. Prior to the injury, the claimant enjoyed doing needlepoint and crocheting, but she has been unable to engage in those activities since sustaining the injury and undergoing surgery. Her ability to do housework is drastically limited. Although she can do some light cleaning, she cannot vacuum, clean the woodwork, or do similar housework. She is unable to make the bed. She is able to do some driving in her local area of Magnolia. She also drives to El Dorado for her physical therapy, and she occasionally drives to Camden. However, driving increases her arm symptoms, and her husband does most of the driving. She has difficulty sleeping as a result of her problems. In this regard, she experiences significant neck pain at night, and she has difficulty moving in the bed. She attempted gardening, but was unable to continue due to pain and discomfort in her shoulders. Her husband also testified that she has difficulty getting in and out of bed, reaching items on cabinets, reaching into the refrigerator, and combing her hair.
The medical evidence establishes that she has sustained a 30% impairment to the body as a whole as a result of the combined effects of her neck and shoulder injury. The medical evidence also establishes that her physical abilities are extremely limited due to these injuries. With regard to the claimant's ability to work, Dr. Giles made the following comments in a letter dated August 12, 1993:
Martha Waters was re-evaluated in the office again on August 11, 1993. This lady continues to be recuperating from the surgical procedures and the manipulation that she has had on both shoulders for her extensive adhesive capsulitis. She also had De Quervain's disease of the left wrist. She has chronic inflammatory joint disease of the cervical spine and once she was placed on exercises to help her shoulder it exacerbated her neck discomfort and now she is having chronic neck pain once again. At the present time, she is restricted in flexion, extension, and rotation. She can use the shoulders but has pain in both joints and certainly cannot put the arms behind her back without significant discomfort.
It appears that this lady continues to be incapacitated as a result of her neck and shoulder disease. I do not think she is employable. I do not think that she will be able to return to her previous occupation, nor will she in the future be able to work overhead doing heavy lifting or push-pull type maneuvers of any type.
In addition, Dr. Gilliam made the following comments:
It is my opinion that the patient cannot return to her previous employment with Kroger. However, she might be able to do limited duty with permanent limitations on the upper extremities. The patient should be permanently restricted from any overhead use of the upper extremities. She should also be permanently restricted from any heavy lifting greater than 10 pounds with the upper extremities. She could however use the arms out in front of her, such as at a keyboard or typewriter, or probably answering the phone. Any work more aggressive than this sedentary activity described will probably be intolerable.
After considering all relevant factors, we find that the claimant's advanced age, limited education and training, and limited work experience have combined with the obvious severity of the her injuries to place her in the odd-lot category. Although she may not be altogether incapacitated from work, the preponderance of the evidence establishes that her injuries have so drastically limited the quality, dependability, and quantity of the services she can perform that a reasonably stable market for her does not exist. Furthermore, the respondents have failed to satisfy their burden of going forward with evidence showing that "some kind of suitable work is regularly and continuously available to the claimant." Therefore, we find that the claimant is permanently and totally disabled as a result of her compensable injuries.
Accordingly, based on our de novo review of the entire record, and for the reasons discussed herein, we find that the claimant's shoulder problems are causally related to the compensable injury and that the respondents are liable for compensation related to these problems. In addition, we find that the claimant has proved by a preponderance of the evidence that she is permanently and totally disabled as a result of her compensable injuries. Therefore, we find that the administrative law judge's decision must be, and hereby is, affirmed. The respondents are directed to comply with the order contained in the administrative law judge's decision.
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 (1987). 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 in accordance with Ark. Code Ann. § 11-9-715(b) (1987).
IT IS SO ORDERED.
Commissioner Tatum dissents.