Opinion
CLAIM NO. E616529
OPINION FILED JANUARY 22, 1999
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by TOM THOMPSON, Attorney at Law, Batesville, Arkansas.
Respondents represented by TERRY SMITH, Attorney at Law, West Memphis, Arkansas.
Decision of Administrative Law Judge: Affirmed in part and reversed in part.
OPINION AND ORDER
Claimant appeals a decision of the Administrative Law Judge filed on March 3, 1998, finding that claimant's impingement syndrome is a compensable consequence of claimant's compensable injury and finding that claimant has failed to prove entitlement to the 11% physical impairment rating assigned by Dr. Joseph Yao. Based upon our de novo review of the entire record, we find that the decision of the Administrative Law Judge must be affirmed in part and reversed in part. Specifically, we find that the claimant failed to prove entitlement to the 11% impairment rating. Therefore, we affirm this finding of the Administrative Law Judge. However, we find that claimant has failed to prove that the impingement syndrome is a compensable consequence of claimant's compensable injury. Therefore, we reverse this finding.
Claimant sustained an admittedly compensable injury to her left shoulder on May 21, 1996. On that date, claimant fell during the course and scope of her employment resulting in a nondisplaced greater tuberosity fracture of her left shoulder. It is claimant's contention that her current diagnosis of impingement syndrome is a compensable consequence of her original injury. Claimant further contends that she is entitled to an 11% impairment rating assessed as a result of the impingement syndrome. Conversely, respondent contends that claimant's current condition is not a compensable consequence of claimant's compensable shoulder fracture. Additionally, respondent contended that the impairment rating assigned is not based upon objective and measurable medical findings and is therefore not a compensable impairment rating. After reviewing the evidence impartially, without giving the benefit of the doubt to either party, we agree with respondent.
The medical records, particularly the deposition of Dr. Yao, clarify how claimant's current condition of impingement syndrome developed. Claimant's primary treating physician, Dr. Yao, testified in his deposition that claimant's nondisplaced fracture in her shoulder healed as of approximately July 24, 1994. By that date, it had been at least 8 weeks since the fracture first occurred. When claimant was seen by Dr. Yao on July 24, 1996, she advised him that she had been lifting 25 pounds on a regular basis at work for the past two days. Since Dr. Yao found claimant's fracture had healed as of that date, he was of the opinion that claimant developed a shoulder strain due to the repetitive lifting at work. Dr. Yao was specifically asked in his deposition:
Q. What caused you to change your diagnosis to a left shoulder strain as opposed to the fracture?
A. It seems, in reviewing the report today, that I probably felt that the pain was related to her using her arm more, lifting the 25 pounds on a regular basis while working.
Q. Okay. At this point did you conclude or do you now conclude looking back at your reports that as of July 24, 1996, the greater tuberosity fracture had healed?
A. Yes, I believe so.
Q. Okay. As of July 24, you are looking at, I guess, at least eight weeks since the date of the fracture. And I think, as you previously stated, six weeks would be sufficient time for a fracture of that nature to heal, is that correct?
A. Yes.
Q. So as of July 24, Doctor, you concluded that Ms. Bezzard's left shoulder strain was more related to, I guess, excessive use. Would that be a term that you would agree with, or do you have a —
A. I believe so.
Q. Okay. So as of July 24, 1996, is it your opinion, Doctor, that the condition that Ms. Bezzard was suffering from was related to a gradual injury rather than the specific injury of May 21, 1996?
A. Yes.
Q. What do you think was the cause of this gradual injury?
A. I believe it was related to lifting the 25 pounds at work.
In his August 21, 1996, report Dr. Yao changed claimant's diagnosis from left shoulder strain to impingement syndrome. Dr. Yao described the difference between a strain and impingement syndrome as follows:
A. Strain implies that the pain is arising from the muscles or tendons, and it is generally due to some stress to the muscle, whether it be pulling or lifting.
Impingement syndrome is a condition where the rotator cuff tendons and often the bursa of the shoulder can be pinched between the upper arm and the structures that form the roof of the shoulder, including the acromion, the bottom edge of the end of the collarbone, and the joint beneath that junction between the collarbone and the acromion. And also there is a ligament that spans across the front of the shoulder that can also serve as an impinging source.
In his deposition, Dr. Yao was asked if he could relate claimant's left shoulder impingement syndrome to her compensable injury of the greater tuberosity fracture, to which he responded "I think that is hard to say for certain." Upon further questioning, Dr. Yao opined that the left shoulder impingement syndrome was related to claimant's repetitive lifting in July of 1996 stating "the lifting, I believe, began the strain problem, which once the rotator cuff was injured, the impingement process, I believe, perpetuated the pain."
When the primary injury is shown to have arose out of and in the course of the employment, the employer is responsible for every natural consequence that flows from that injury.McDonald Equipment Co. V. Turner, 26 Ark. App. 264, 766 S.W.2d 936 (1989). However, the claimant must prove by a preponderance of the evidence that there is a causal connection between the primary injury and the subsequent disability.Giddry v. J. R. Eads Construction Co., 11 Ark. App. 219, 669 S.W.2d 483 (1984). Consequently, the claimant must prove by a preponderance of the evidence that the disabling condition is a natural consequence flowing from the primary injury. In order to prove the compensability of an alleged compensable consequence, all requirements for proving compensability apply.John Cotton v. Ball Prier, FC Opinion September 23, 1997 ( E512437). Claimant must meet his burden to prove that his shoulder problem is a compensable consequence by a preponderance of the evidence and he must meet his burden by presenting medical evidence supported by objective findings. Ark. Code Ann. § 11-9-101(16); Dodd v. Service American Corp., FC Opinion August 29, 1995, ( E313993). Finally, except in the most obvious cases, the existence of a causal relationship must be established by expert medical evidence. See, Billy Wayne Jeter v. B R McGinty Mechanical, FC Opinion March 6, 1997, ( E208256); affirmed (May 6, 1998), Ortho R. Wells v. Armstrong Rubber Co., FC Opinion April 14, 1997, ( D100998); and Carolyn Jackson v. Bosley Construction, Inc., FC Opinion March 6, 1997, ( E009401).
The medical evidence in this case indicates that the impingement syndrome is only indirectly related to claimant's compensable injury and resulted from repetitive use. It is necessary for claimant to prove the compensability of the impingement syndrome by meeting all requirements for a compensable injury. Even assuming, arguendo, that all other necessary elements for a gradual onset, non-back injury have been met, claimant has failed to prove compensability of the impingement syndrome by objective medical findings. As noted inSharon Spaulding v. First Step School, Full Commission Opinion filed May 27, 1997 ( E416505):
. . . it is the condition or abnormality alleged to be a compensable consequence of the work-related injury that must be supported by objective findings, not the opinion regarding causation.
In the present claim, there were no objective findings substantiating the diagnosis of impingement syndrome. This diagnosis is based solely upon claimant's continued complaints of pain after her nondisplaced shoulder fracture healed. One may argue that the x-ray studies ordered by Dr. Mahon, dated March 25, 1997, document objective findings supportive of claimant's subjective complaints diagnosed as impingement syndrome. However, our review of the record reveals that claimant's MRI performed prior to claimant's development of impingement syndrome complaints showed the exact same findings which Dr. Mahon relied upon to support the impingement syndrome diagnosis. Since these findings pre-existed claimant's development of impingement syndrome we are constrained to find that these objective findings do not support claimant's diagnosis. All objective findings merely describe or disclose claimant's pre-existing physical anatomy. Accordingly, we find that claimant has failed to prove that her impingement syndrome is a compensable consequence of her work-related injury. Therefore, we would reverse this finding of the Administrative Law Judge.
The dissent asserts that the evidence in this claim is substantially similar to that in Oak Grove Lumber Co. V. Highfield [Highfill], 62 Ark. App. 42, ___ S.W.2d ___ (1998) wherein the Court of Appeals found a second fracture to be a natural consequence of the claimant's compensable injury. Since we find that claimant in the present claim has failed to establish her impingement syndrome by objective medical evidence, we find that this claim is readily distinguishable from Oak Grove Lumber Company v. Highfield [Highfill], 62 Ark. App. 42, ___ S.W.2d ___ (1998). Claimant's treating physician in the present claim, Dr. Yao, never stated that claimant's compensable fracture increased the probability of claimant developing a strain and thus eventually developing impingement syndrome. In Highfield, we were presented with direct testimony that the compensable injury increased the likelihood of the second injury. Furthermore, even assuming Dr. Yao's comments to be substantially similar to that of the treating physician inHighfield, a finding that we do not reach, the record in Highfield revealed that the claimant's subsequent fracture was supported by objective medical findings. Such is not the case in this claim. Consequently, we find thatHighfield is not controlling.
There are no objective findings substantiating the impingement syndrome diagnosis. Likewise, the impairment rating assigned by Dr. Yao for the impingement syndrome is based solely upon range of motion testing. Ark. Code Ann. § 11-9-704(c)(1)(B) (Repl. 1996) states that "Any determination of the existence of extent of physical impairment shall be supported by objective and measurable physical or mental findings." Range of motion tests cannot serve as objective findings. Cox v. CSFI Temporary Employment, 57 Ark. App. 310, 944 S.W.2d 856 (1997). Claimant's diagnosis of impingement syndrome is based upon her continued complaints of pain and her restricted range of motion. As neither of these constitute objective findings, there is no evidence in this record to support an award of the 11% permanent impairment rating. While the objective tests did document claimant's nondisplaced fracture, once the fracture healed, there are no objective findings supportive of a permanent impairment rating. Accordingly, we find that claimant has failed to prove by a preponderance of the evidence that she has sustained a permanent impairment of her compensable injury supported by objective measurable medical findings. Therefore, we find that this finding of the Administrative Law Judge should be affirmed.
Accordingly, for those reasons set forth herein, we find that the decision of the Administrative Law Judge should be affirmed in part and reversed in part.
IT IS SO ORDERED.
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Commissioner Humphrey dissents.