Opinion
CLAIM NO. F000939
OPINION FILED SEPTEMBER 7, 2001
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE PHILIP M. WILSON, Attorney at Law, Little Rock, Arkansas.
Respondents represented by the HONORABLE MIKE ROBERTS, Attorney at Law, Little Rock, Arkansas.
Decision of the Administrative Law Judge: Affirmed as modified.
OPINION AND ORDER
Respondent appeals a January 24, 2001 opinion of the Administrative Law Judge finding that claimant has proven by a preponderance of the evidence that he sustained a compensable injury to his right shoulder; that claimant is entitled to benefits for temporary total disability from January 21 to April 24, 2000; and that claimant is entitled to benefits for a permanent anatomical impairment of 3% to the body as a whole.
Respondent's arguments are premised on the assertion that claimant's right shoulder difficulties are the result of a preexisting condition and therefore not causally related to the employment. Claimant has the burden of proving by a preponderance of the evidence that his condition is causally related to his employment. See Estridge v. Waste Management, 343 Ark. 276, 33 S.W.3d 167 (2000). Questions of credibility and the weight and sufficiency to be given evidence are matters within the province of the Workers' Compensation Commission. Swift-Eckrich, Inc. v. Brock, 63 Ark. App. 118, 975 S.W.2d 857 (1998). A preexisting disease or infirmity does not disqualify a claim if the employment aggravated, accelerated, or combined with the disease or infirmity to produce the disability for which compensation is sought. See Nashville Livestock Commission v. Cox, 302 Ark. 69, 787 S.W.2d 664 (1990); Minor v. Poinsett Lumber Mfg. Co., 235 Ark. 195, 357 S.W.2d 504 (1962); Conway Convalescent Center v. Murphree, 266 Ark. 985, 588 S.W.2d 462 (Ark.App. 1979); St. Vincent Medical Center v. Brown, 53 Ark. App. 30, 917 S.W.2d 550 (1996). As is commonly stated, the employer takes the employee as he finds him. Murphree, supra. In such cases, the test is not whether the injury causes the condition, but rather the test is whether the injury aggravates, accelerates, or combines with the condition.
Based on our de novo review of the entire record, we find that claimant has met his burden of proof and, accordingly, affirm the opinion of the Administrative Law Judge, as modified herein.
Claimant is "an assembler maintenance" employee with the employer. Claimant added that ". . . whatever comes along to be put together, we put it together." The parties stipulated that an incident occurred on September 3, 1999. Claimant described his injury in the following manner:
Karen Hodges, who works in layaway, and myself was restacking two pallets of bicycles, and the pallets were uneven, and as we moved the bicycles from one pallet to an empty pallet or another pallet, the pallet that we was working on fell. Karen hollered, "It's falling," and as I turned around, it hit me and pushed me into the other pallet pinning me against the pallet with the bicycles and crushing my, mashing my left shoulder, my right shoulder. In that process there was a lot of pain, extreme pain, and after they dug me out from under the bicycles — I couldn't get out by myself. After they dug me out from under the bicycles, I stayed at work for almost the whole rest of the day and then took off and went home. The next day it was not, it was sore. I had a lot of pain, but I went in and went ahead and did what I could do with my hand in front of me, and it's been that way ever since.
Claimant immediately informed Beverly Moseley, his supervisor, of the incident, but continued to perform his job duties although he was forced to limit his lifting as well as overhead reaching. Claimant's condition progressively worsened over the ensuing months and he finally had to seek medical attention from the company doctor, Dr. Judson N. Hout, on January 21, 2000. Dr. Hout made a referral to Dr. Jay M. Lipke, who examined claimant on January 25, 2000. Claimant gave a history of "direct trauma to the anterior aspect of his right shoulder and felt as though something came in and out of joint." An MRI scan revealed evidence of a large chronic rotator cuff tear with proximal migration of the humeral head, as well as a cyst emanating from the AC joint. Dr. Lipke's records indicate that he excused claimant from work beginning February 7, 2000 and performed surgery on February 14, 2000. Dr. Lipke released claimant to return to work with restrictions on April 24, 2000.
Concerning any causal connection between claimant's shoulder difficulties and his employment, as well as the extent of his permanent anatomical impairment, Dr. Lipke, in a report dated June 6, 2000, opined the following:
This is in response to your recent letter concerning Mr. J. W. Westbrook. Historically, I believe Mr. Westbrook's current problems necessitating surgery began with the work-related injury on September 3, 1999. This injury aggravated a pre-existing problem with the right shoulder (chronic rotator cuff tear). Historically, the patient relates not having significant problems with her (sic) shoulder prior to the work related injury.
It was my feeling prior to the surgery that the work related injury was the entire cause of his shoulder problems, however, at the time of surgery he did have a chronic rotator cuff tear that I feel predated the work related injury. However, I feel the work related injury was an aggravating factor, or the straw that broke the camel's back and this has added to his underlying shoulder problem. With this in mind, I would say the work related injury added 5% impairment to his shoulder. In other words, 45% of his impairment would be related to the pre-existing injury and 5% could be assigned to the work related injury. My decision is (sic) this is entirely arbitrary and based on my clinical judgement as well as the fact that Mr. Westbrook had a functional shoulder prior to the injury and now has considerable permanent impairment.
I am afraid this is the best I can do in this complicated matter.
Based on claimant's credible testimony and the opinion of Dr. Lipke that the September, 1999 incident aggravated claimant's preexisting shoulder condition and caused claimant's need for surgery and at least part of his permanent disability, we find that claimant has met his burden of proof by a preponderance of the evidence that his right shoulder difficulties were aggravated by, and thus causally related to, his employment.
Concerning the extent of claimant's permanent anatomical impairment, Dr. Lipke opined that claimant had a 50% impairment to the right upper extremity or 30% to the body as a whole. Respondent's argument against this award is that the compensable injury is not the major cause of claimant's disability, as is required by Ark. Code Ann. § 11-9-102(4)(F)(ii) (Supp. 1999). We agree that the compensable injury does not account for the total amount of disability assigned by Dr. Lipke. However, Dr. Lipke clearly stated his opinion that the compensable injury accounts for 10% of claimant's total impairment. Therefore, the compensable injury is the major cause of 3% of claimant's total permanent impairment to the body as a whole. Accordingly, we find that claimant is entitled to benefits for a permanent anatomical impairment of 3% to the body as a whole.
Temporary total disability is that period within the healing period in which claimant suffers a total incapacity to earn wages. Ark. State Highway Transportation Dept. v. Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981). The healing period ends when the underlying condition causing the disability has become stable and nothing further in the way of treatment will improve that condition. Mad Butcher, Inc. v. Parker, 4 Ark. App. 124, 628 S.W.2d 582 (1982). There is no dispute about whether claimant remained within his healing period during the time in question. While claimant at one point during the hearing did testify that he was off work beginning January 21, 2000, he was far from certain in his testimony concerning this date. The documentary evidence indicates that Dr. Lipke did not excuse claimant completely from work until February 7, 2000. Further, Dr. Lipke released claimant to return to work on April 24, 2000. Therefore, we find that claimant is entitled to benefits for temporary total disability from February 7 to April 24, 2000. Accordingly, the opinion of the Administrative Law Judge is modified in this regard.
Respondent challenges the award for temporary total disability on the basis that claimant was able to continue performing his concurrent job as pastor of the First Church of the Nazarene. However, claimant was able to perform his ministerial duties with the assistance of three associate pastors. Further, the simple fact that claimant continued to receive or earn wages as a pastor is not determinative of whether claimant is disabled. A similar situation occurred in Stevens v. Mountain Home School District, 41 Ark. App. 201, 850 S.W.2d 335 (1993). In Stevens, claimant was entitled to temporary total disability benefits even though she continued to work at her second job earning the same or more than she would have earned for the employer at which she sustained the compensable injury. In construing the statutory definition of disability, the court held that "any other employment" means any other employment in lieu of the one in which the employee was injured. In the present case, the greater weight of the evidence indicates that claimant did not have the capacity to earn the same or more wages in employment in lieu of his job with this employer.
Finally, claimant acknowledges, and we find, that respondent is entitled to an offset pursuant to the provisions of Ark. Code Ann. § 11-9-411 (Repl. 1996).
For the foregoing reasons, we affirm the opinion of the Administrative Law Judge finding that claimant sustained a compensable injury and that claimant is entitled to benefits for a permanent anatomical impairment of 3% to the body as a whole. However, we modify the Administrative Law Judge's award of benefits for temporary total disability to award such benefits from February 7 to April 24, 2000.
Respondent is directed to comply with the award set forth herein. 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 in accordance with Ark. Code Ann. § 11-9-715 (Repl. 1996).
IT IS SO ORDERED.
______________________________ SHELBY W. TURNER, Commissioner
CONCURRING OPINION
I concur in the principal opinion's findings and award of benefits. I write separately only to express my thoughts on the dissenting opinion's "major cause" argument.
At one level, the dissenting opinion's arguments are well taken. In this regard, Dr. Lipke has explained in no uncertain terms that the claimant has a preexisting component and a work-related component to his shoulder impairment at issue in this case. The dissenting opinion is certainly correct that the work-related component of the claimant's impairment is not the "major cause" of the 50% impairment to the claimant's right upper extremity (equivalent to 30% impairment rating to the body as a whole). However, I also point out that we are not awarding the claimant a 50% impairment to the right upper extremity. To the contrary, Dr. Lipke has opined that he can apportion the claimant's 50% impairment to the right upper extremity between the preexisting condition and the work-related injury, and that based on that apportionment, the claimant's work-related injury is mathematically the (major/sole) cause of 5% impairment to the right upper extremity (equivalent to 3% impairment to the body as a whole).
While it is rare for doctors to provide the Commission medical opinions which apportion an injured patient's anatomical impairment, because of Dr. Lipke's apportionment, the claimant has established that his work-related injury is the major cause (mathematically the sole cause) of 3% of his anatomical impairment rating to the whole body. Consequently, as I understand the amendments of Act 796 of 1993, the claimant is entitled to an award of benefits for the 3% anatomical impairment rating to the whole body attributable to his work-related injury, but he is not entitled to an award of indemnity benefits for the 27% anatomical impairment rating to the whole body attributable to his preexisting shoulder condition. Accord Ellison v. Therma-Tru, 66 Ark. App. 286, 989 S.W.2d 987 (1999); Jimmie F. Booth v. Sears Roebuck Company, Full Workers' Compensation Commission, Opinion filed July 13, 1999 (WCC No. E605030).
_______________________________ ELDON F. COFFMAN, Chairman
DISSENTING OPINION
I respectfully dissent from the majority opinion as I find that the Administrative Law Judge's opinion should be reversed in regard to its finding that the claimant has a permanent physical impairment in the amount of 3% to the body as a whole as a result of his September 3, 1999, injury.
Regarding the award of benefits for permanent physical impairment, Arkansas Code Annotated § 11-9-102(4)(F) (Supp. 1999) provides:
(i) When an employee is determined to have a compensable injury, the employee is entitled to medical and temporary disability as provided by this chapter.
(ii)(a) Permanent benefits shall be awarded only upon a determination that the compensable injury was the major cause of the disability or impairment.
(ii)(b) If any compensable injury combines with a preexisting disease or condition or the natural process of aging to cause or prolong disability or a need for treatment, permanent benefits shall be payable for the resultant condition only if the compensable injury is the major cause of the permanent disability or need for treatment.
Further, "major cause" is defined as more than fifty percent of the cause. Arkansas Code Ann. § 11-9-102(14)(A) (Supp. 1999).
The claimant's physician opined on at least four separate occasions that the claimant's work related injury was not the major cause of his impairment.(1)Responding to a letter on April 20, 2000, Dr. Lipke assessed the claimant's permanent impairment rating and clearly checked "No" on a form which asked him to state, "Whether the Claimant's work is the major cause of the impairment (greater than 50%)."(2) In a letter to the claimant of the same date, Dr. Lipke wrote, "I don't feel the work-related injury is the major cause of your impairment. . . . I can't in good conscious (sic) state that the trauma you sustained at work caused greater than 50% of your present impairment." (3) While Dr. Lipke did state in a letter dated June 6, 2000, that he believed that the claimant's work-related injury of September 3, 1999, aggravated a pre-existing chronic rotator cuff tear, he quantified the contribution of this aggravation as follows, "the work-related injury added 5% impairment to his shoulder (sic) In other words, 45% of his impairment would be related to the pre-existing injury and 5% could be assigned to the work-related injury." (4)And lastly, Dr. Lipke wrote in an August 21, 2000, letter,"I don't feel the 9/3/99 injury caused more than 50% of the impairment rating, . . . 10% of the impairment was caused by the work-related injury and 90% by the pre-existing condition."
Because the claimant failed to meet the major cause requirement set forth in Ark. Code Ann. § 11-9-102(4)(F), I would find that he is not entitled to benefits for any permanent physical impairment he sustained as a result of his September 3, 1999, injury. Therefore, I respectfully dissent from the majority opinion.
______________________________ MIKE WILSON, Commissioner