Opinion
CLAIM NO. E810255
OPINION FILED APRIL 6, 2000
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE SHEILA F. CAMPBELL, Attorney at Law, Little Rock, Arkansas.
Respondents represented by the HONORABLE STEPHEN L. CURRY, Attorney at Law, Little Rock, Arkansas.
Decision of administrative law judge: Affirmed.
OPINION AND ORDER
The respondents appeal and the claimant cross-appeals an administrative law judge's opinion filed October 8, 1999. The administrative law judge found that the condition of the claimant's right shoulder is the natural and probable consequence of the original compensable injury and not the result of an independent intervening cause. The administrative law judge found that the claimant's care by Dr. Yocum, including the proposed surgery for the claimant's shoulder, is reasonably necessary in connection with the compensable injury and is the responsibility of the respondents. The administrative law judge found that the claimant was entitled to temporary total disability compensation from February 24, 1999, until a date to be determined. After de novo review of the entire record, the Full Workers' Compensation Commission affirms the opinion of the administrative law judge.
I. HISTORY
The parties stipulated that the claimant, age 25, sustained a compensable injury to his right shoulder on June 22, 1998. The claimant testified that he tried to grab a beam to prevent falling off a 4-5 foot ladder, "And as I grabbed the beam, my arm, my shoulder popped. And that's when I fell to the ground and hit my elbow." The claimant reported the injury to his supervisor, and the respondent-employer began providing medical treatment.
The claimant testified that he returned to work on or about June 27, 1998, and that the respondents provided modified work duty. The claimant asserted, however, that his shoulder condition worsened. For some reason, the claimant began secretly taping conversations with other employees of the respondent-employer. The record includes a purported transcription of these conversations, beginning August 11, 1998. The claimant was complaining to a manager, Zane Anderson, that another employee "threw racial remarks to me." "I feared for my life," the claimant said regarding the offensive employee, known only as "James." The claimant said, "I thought the dude was going to come in here and shot (sic) everybody the way he is he's kinda the way he is he clicks just like that next thing you know he's like the devil coming at you."
Dr. Charles T. Marable reported on August 14, 1998:
24 y/o follows up for right shoulder pain and lateral epicondylitis following a work related accident on 6/29/98. Patient has been working on restricted duty (no heavy lifting, hammering, or drilling with right upper extremity). Patient states he used his drill on occasion and this exacerbates his shoulder pain. Also drives a truck with no power steering and states this exacerbates his elbow and shoulder pain. Pain was improving with Naprelan.
Patient states while playing basketball 1 and 1/2 weeks ago he swung his right arm across his body and heard a pop in the shoulder.
Dr. Marable assessed "shoulder bursitis/tendonitis and lateral epicondylitis" and noted that the claimant "has not strictly followed his work restrictions or curtailed his extracurricular activities as recommended. I do not think additional time off from work is necessary but I have recommended patient see Dr. John Yokum (sic) next week for further evaluation."
Dr. Yocum, an orthopedic surgeon, examined the claimant on August 18, 1998 and reported that x-rays of the right shoulder showed no fracture or dislocation. The claimant did have a "Type II acromion." Dr. Yocum's impression was that the claimant had sustained a shoulder subluxation with subsequent instability symptoms, and that he had some rotator cuff tendinitis. Dr. Yocum prescribed medication and physical therapy, return in 3-4 weeks, and stated that operative measures might be required if conservative treatment failed. Dr. Yocum indicated that the claimant could return to modified work duty the next day, August 19, 1998.
However, the parties stipulated that the claimant tendered a written resignation of employment on August 19, 1998:
Dear Sound Security,
Recent occurrences demand that I resign as Alarm Tech effective August 19, 1998.
Disagreements with employees and philosophy of the company has hinder (sic) my performance and my ability to assist in further goals.
I will miss the challenge and adventure my role offered, as well as the many people with whom I worked.
The claimant testified that he did not actually intend to resign, but that he submitted the letter "to get their attention." Further, said the claimant, the employer did not accept his resignation on that date.
The record includes a note written by the claimant on August 21, 1998:
Dear Sound Security,
I am writing this letter for reinstatement of employment that this situation has been resolved by both parties. Myself and sound security.
More transcription, dated August 21, 1998, indicated that the claimant wished to "throw out my resignation and just really come back to work." Nevertheless, the claimant testified, "I didn't know I was trying to ask for my job back." The respondents weren't really sure they wanted the claimant back and told him he would hear from them by the following Monday. The record does not indicate that they re-hired him at that time. The claimant testified that the respondent-employer "let me go" on August 24, 1998.
On September 3, 1998, meanwhile, the claimant began receiving physical therapy at HealthSouth Rehabilitation Center of Little Rock. Dr. Yocum opined that the claimant could return to full work on September 14, 1998. "I'm here!" the claimant announced to the respondents on Monday, September 14, 1998. The claimant was told he needed to fill out another application, but the business was under new management and the claimant was not hired at that time. The claimant testified that he subsequently began attending a trade school in order to acquire an electrician's license. The claimant said that he had also worked "odd jobs, like maybe a car wash here or a car wash there, but that's about it." The claimant testified that he had applied for jobs at Wal-Mart, Home Depot, Target, Affiliated Foods, and United Parcel Service. The claimant testified that he was willing to perform any work, except "no lifting." (The respondents stopped paying medical benefits after September 14, 1998).
The claimant returned to Dr. Yocum on November 10, 1998 with complaints "of recurring right shoulder pain." On December 2, 1998, Dr. Yocum wrote that "His MRI indicated bone bruising in the area of typical . . . (sic) lesion. I feel he indeed has continuing instability in the shoulder that may require surgical stabilization. I feel that he could return, as previously to light duty work with no over head activities in the right arm. I plan to see him back in follow up in about one month. He is having some difficulty with his workman's comp. situation." Dr. Yocum authored similar reports in January, 1999.
Williams contended that he should be awarded additional benefits for temporary total disability from August 19, 1998 until a date to be determined, and additional medical expenses, including for proposed surgery, as well as an attorney's fee for controversion. The respondents contended that the claimant is not entitled to temporary disability, stating that he was not totally incapacitated to earn wages, and that light duty was available until he resigned his employment on August 18, 1998. The respondents contended that the medical care by Dr. Yocum, including the proposed surgery, was not reasonably necessary in connection with the compensable injury, but was necessitated by an independent intervening cause, that is, playing basketball.
On a questionnaire provided by the claimant's attorney, Dr. Yocum on May 4, 1999 diagnosed "shoulder instability with dislocation," related to the claimant's compensable injury. Dr. Yocum recommended surgery. After a hearing before the Commission, the administrative law judge determined that "the medical record is consistent with the claimant's assertion that his continuing shoulder problems were the result of the compensable injury. In that regard, the claimant's medical care and the proposed surgery are appropriate and are reasonably necessary in connection with that injury."
As for temporary total disability compensation, the administrative law judge found:
A claimant who continues in his healing period and has been released to restricted duty is entitled to temporary total disability benefits where his employer fails to provide such work. Here, however, the employer's responsibility to do so ended when the claimant resigned his employment, even though he may have acted hastily. On the other hand, Dr. Yocum has determined that the claimant should have surgery and has taken him off work as of February 24, 1999, until a date to be determined, as a result of his compensable injury.
The administrative law judge thus directed the respondents to pay benefits to the claimant. The administrative law judge found that the claimant was entitled to medical treatment from Dr. Yocum, and that the claimant was entitled to temporary total disability from February 24, 1999 until a date to be determined. The respondents appeal the award of benefits in its entirety. The claimant cross-appeals and states that he should be entitled to temporary total disability beginning August 18, 1998, rather than February 24, 1999.
II. ADJUDICATION
A. Compensable Consequence
An aggravation is a new injury resulting from an independent incident. Farmland Ins. Co. v. DuBois, 54 Ark. App. 141, 923 S.W.2d 883 (1996). A recurrence is not a new injury but merely another period of incapacitation resulting from a previous injury.Atkins Nursing Home v. Gray, 54 Ark. App. 125, 923 S.W.2d 897 (1996). A recurrence exists when the second complication is a natural and probable consequence of a prior injury. Weldon v. Pierce Bros. Constr., 54 Ark. App. 344, 925 S.W.2d 179 (1996).
In the present matter, the claimant sustained an admittedly-compensable injury to his right shoulder on June 22, 1998, for which the respondents initially provided medical treatment. Dr. Charles Marable subsequently diagnosed "shoulder bursitis/tendonitis and lateral epicondylitis", related to the compensable injury. Dr. John Yocum, an orthopedist, began treating the claimant in August, 1998, and his impression was that the claimant had sustained a shoulder subluxation with subsequent instability symptoms, and that he had some rotator cuff tendinitis. The respondents ceased providing medical benefits after September 14, 1998. However, the claimant returned to Dr. Yocum in November, 1998, complaining of "recurring right shoulder pain." An MRI taken in December, 1998 indicated bone bruising, and Dr. Yocum felt that surgical stabilization of the claimant's shoulder might be required. In May, 1999, Dr. Yocum diagnosed shoulder instability with dislocation, which resulted from the compensable injury, and he recommended surgery.
The dissent asserts that the claimant's need for surgery was necessitated by an independent intervening cause, that is, playing basketball. However, our de novo review of the evidence does not support the dissent's theory. We note that the claimant was initially restricted from overhead use of his right arm, and that Dr. Marable's August 14, 1998 office note indicated that the claimant heard a "pop" while playing basketball several days before. However, Dr. Marable also indicated that the claimant's pain had improved, released the claimant to return to work, and indicated that the "pop" occurred when the claimant swung his arm across his body, which was not prohibited overhead activity. In addition, the claimant testified that the basketball incident referred to was "Nerf" basketball, a lightweight toy, that he and his two-year-old son were playing with. Further, the claimant testified that his shoulder had already been "popping" on other occasions between the time of the compensable injury and the Nerf basketball episode with his child. From this record, the Full Commission is unable to find that the claimant's use of a Nerf basketball constitutes an independent intervening cause of the claimant's ongoing shoulder complaints and need for surgery.
Employers must promptly provide medical services which are reasonably necessary for treatment of compensable injuries. Ark. Code Ann. § 11-9-508(a) (Repl. 1999). In the present matter, we affirm the administrative law judge's finding that the claimant's care by Dr. Yocum, including the proposed surgery for the claimant's shoulder, is reasonably necessary in connection with the claimant's compensable injury, and is the responsibility of the respondents.
B. Temporary Disability
Temporary disability is determined by the extent to which a compensable injury has affected the claimant's ability to earn a livelihood. An injured employee is entitled to temporary total disability compensation during the period of time that he is within his healing period and totally incapacitated to earn wages.Arkansas State Highway and Transportation Department v. Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981). Ark. Code Ann. § 11-9-102(12) (Repl. 1999) defines "healing period" as the period necessary for healing of an injury resulting from an accident. The healing period continues until the employee is as far restored as the permanent character of his injury will permit. When the underlying condition causing the disability becomes stable, and when nothing further will improve that condition, the healing period has ended. The claimant is no longer entitled to receive temporary total disability compensation, regardless of his physical capabilities.
In the present matter, the claimant sustained a compensable injury to his right shoulder on June 22, 1998, and he returned to work on or about June 27, 1998. The respondents provided modified work duty for the claimant, within his physical restrictions. The parties stipulated that the claimant tendered a written resignation of employment on August 19, 1998. The claimant did not attribute this voluntary written resignation to the compensable injury; rather, the claimant wrote that disagreements with employees and the company's philosophy had hindered his performance and ability to assist in further goals. The claimant tried to rescind his resignation in a note written August 21, 1998, but the respondent-employer never rehired the claimant. The claimant contended that he was entitled to temporary total disability compensation from August 19, 1998 until a date to be determined. Nevertheless, we find that the claimant was not totally incapacitated to earn wages as of August 19, 1998, and that the claimant is not entitled to temporary total disability compensation from that date.
In a note dated May 18, 1999, Dr. Yocum indicated that the claimant was off work as of February 24, 1999, and that he recommended surgery to repair the instability related to the June, 1998 compensable injury. We therefore find that the claimant re-entered a healing period on February 24, 1999 for his compensable injury, and that the claimant was totally incapacitated to earn wages from that date until a date to be determined. The claimant is thus entitled to temporary total disability compensation from February 24, 1999 until a date to be determined.
III. CONCLUSION
Accordingly, based on our de novo review of the entire record, and for the reasons discussed herein, the Full Commission finds that the condition of the claimant's right shoulder is the natural and probable consequence of the original compensable injury, and not the result of an independent intervening cause. We find that the claimant's care by Dr. Yocum, including proposed surgery for the claimant's shoulder, is reasonable, necessary, causally connected to the compensable injury, and the responsibility of the respondents. We find that the claimant has proven entitlement to temporary total disability compensation from February 24, 1999 until a date to be determined. The Full Commission thus affirms in its entirety the opinion of the administrative law judge.
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 in part 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.
___________________________
Commissioner HUMPHREY concurs.
DISSENTING OPINION
I respectfully dissent from the majority's opinion finding that the claimant's right shoulder problem is the natural and probable consequence of his original compensable injury. In my opinion, the claimant's right shoulder problems are the result of an independent intervening cause. After his compensable injury on June 22, 1998, the claimant was able to return to work within 5 days of the incident with light-duty work restrictions. The claimant was aware of these restrictions which included no heavy lifting, hammering, or drilling with his right upper extremity. However, on August 14, 1998, Dr. Marable reported that the claimant told him he used his drill which exacerbated his shoulder pain. In addition, the claimant reported to Dr. Marable that he had driven a truck without power steering which had exacerbated his elbow and shoulder pain. Further, the claimant told Dr. Marable that he was playing basketball 1 1/2 weeks prior when he swung his right arm across his body and heard a pop in the shoulder and he had increased pain since that time. Dr. Marable concluded that the claimant had not strictly followed his work restrictions or curtailed his extra-curricular activities as recommended.
The claimant attempted to explain away the basketball incident he previously reported to Dr. Marable by stating that he was playing Nerf Basketball with his two year old son. However, the record reflects that prior to the June incident, the claimant had engaged in strenuous basketball games with adults for many years. Further, there is no dispute that the claimant continued to play basketball contrary to his physician's directions. While under Dr. Yocum's care, the claimant admitted that in January and February of 1999, he "shot basketball". The claimant admitted that during this time period he also played H-O-R-S-E and was able to make jump shots.
When an employee is determined to have a compensable injury, the employee is entitled to medical and temporary total disability benefits. Ark. Code Ann. § 11-9-102(5)(F)(i) (Supp. 1997). Benefits are not payable for a condition which results from a non-work-related independent intervening cause following a compensable injury which causes or prolongs disability or need for treatment Ark. Code Ann. § 11-9-102(5)(F)(iii) (Supp. 1997). "The test for determining whether a subsequent episode is a recurrence or an aggravation is whether the subsequent episode was a natural and probable result of the first injury or if it was precipitated by an independent intervening cause." Georgia Pacific Corp. v. Carter, 62 Ark. App. 162 969 S.W.2d 677 (1998). Whether there is a causal connection between an injury and a disability and whether there is an independent intervening cause are questions of fact for the Commission to determine. Oak Grove Lumber Co. v. Highfill, 62 Ark. App. 42 968 S.W.2d 637 (1998).
In my opinion, the claimant shoulder condition is not causally related to his compensable accident of June 22, 1998. The claimant was able to return to work within a week of the original injury. However, his condition continued to deteriorate due to his non-work-related activities. Therefore, for all the reasons set forth herein, I respectfully dissent from the majority's opinion finding that the claimant's current shoulder condition is causally related to his compensable accident.
However, if I were to find that the claimant's shoulder problems were related to his compensable injury, I would find that the claimant was not entitled to any temporary total disability benefits for the period between August of 1998 and February of 1999. The evidence shows that the claimant was offered modified work for the respondents. However, the claimant tendered his resignation in August 1998 because of a disagreement with another employee. I can agree with the majority's finding that the claimant is not entitled to temporary total disability benefits from August 19, 1998, through the period of February 24, 1999, where Dr. Yocum took the claimant off work.
__________________________ MIKE WILSON, Commissioner