Opinion
CLAIM NO. E300751
OPINION FILED APRIL 8, 1997
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE DONALD S. RYAN, Attorney at Law, Little Rock, Arkansas.
Respondents represented by the HONORABLE J. MICHAEL PICKENS, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Reversed and remanded.
OPINION AND ORDER
The respondents appeal an opinion and order filed by the administrative law judge on February 8, 1996. In that opinion and order, the administrative law judge found that the claimant is permanently and totally disabled as a result of a combination of impairments to her right arm, right shoulder, and neck.
After conducting a de novo review of the entire record, we find that the claimant failed to prove by a preponderance of the evidence that she is permanently and totally disabled. However, we find that the claimant proved by a preponderance of the evidence that she sustained a permanent physical impairment of 35% rated to the body based on a combination of impairments to her neck, right shoulder, and right arm.
Injured workers bear the burden of proving that they are entitled to an award for a permanent physical impairment. Therefore, when considering claims for permanent physical impairments, the Commission must impartially weigh all of the evidence in the record to determine whether the preponderance of the evidence establishes that the worker sustained a permanent physical impairment as a result of a compensable injury. Consequently, an injured worker must prove that the work-related injury resulted in, or worsened, a permanent anatomical, physiological, or psychological condition which limits the ability of the worker to effectively use part of the body or the body as a whole. Moreover, it is the duty of this Commission to determine whether any permanent anatomical impairment resulted from the injury, and, if we determine that such an impairment did occur, we have a duty to determine the precise degree of anatomical loss of use.Johnson v. General Dynamics, 46 Ark. App. 188, 878 S.W.2d 411 (1994).
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). 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 her 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 she 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 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). Likewise, although a claimant's failure to participate in rehabilitation does not bar her claim, the failure may impede a full assessment of her wage earning loss by the Commission. Nicholas v. Hempstead County Memorial Hospital, 9 Ark. App. 261, 658 S.W.2d 408 (1983).
In the present claim, the claimant experienced a "pop" in her shoulder on December 18, 1992, while attempting to assist other nursing home staff members in maneuvering an incapacitated nursing home resident who had slumped in a wheelchair. Co-workers immediately questioned the source of the "pop" to insure that they had not somehow injured the incapacitated resident, and the claimant indicated that she felt her shoulder pop as she was assisting in her attempt to lift the resident further upright in the wheelchair. When the claimant reached behind the wheelchair to untie a restraint, the claimant also stated that her hand felt numb.
The claimant was treated that same day by Dr. Lander Smith who initially diagnosed a "musculoskeletal strain." When the claimant reported persistent neck symptoms, Dr. Smith referred the claimant to Dr. J. Tod Ghorley who suspected a possible traction neuropathy of the brachial plexus, an impingement syndrome, and cervical myositis. Dr. Ghorley caused a cervical MRI to be performed which indicated a possible disk herniation at the C5-6 level of the spine, and Dr. Ghorley referred the claimant to Dr. Richard Peek, an orthopedic surgeon at the Arkansas Spine Center. On February 22, 1993, Dr. Peek performed a diskectomy and spinal fusion with bone graft at the C5-6 level of the claimant's spine. On May 1, 1995, Dr. Earl Peeples, an orthopedic surgeon who performed an evaluation of the claimant at the request of the respondent, rated the claimant's permanent anatomical impairment due to the cervical injury and fusion procedure at 10% to the body as a whole.
Dr. Peek, who continued to follow the claimant after the claimant's cervical surgery, assigned the claimant a 35% permanent physical impairment rated to the body as a whole on June 14, 1994, based in part on the cervical procedure and subsequent cervical limitations. However, Dr. Peek ascertained that the claimant has sustained a right shoulder dysfunction and a severe compromise of her right arm which are also incorporated into Dr. Peek's 35% permanent impairment rating.
The respondents accepted and paid the 10% permanent anatomical impairment rating assigned by Dr. Peeples for the claimant's cervical impairment. The respondents have denied liability for the right shoulder and right arm components of Dr. Peek's anatomical impairment rating.
With regard to determining whether the evidence shows the presence of an abnormality which could reasonably be expected to produce the permanent physical impairment alleged by an injured worker, Ark. Code Ann. § 11-9-704 (c)(1) (1987) provides that "[a]ny determination of the existence or extent of physical impairment shall be supported by objective and measurable physical or mental findings." The Arkansas Court of Appeals has found that a finding is objective if it is based on observable phenomena or it indicates a symptom or condition perceived as a sign of an underlying abnormality by someone other than the person afflicted. Keller v. L. A. Darling Fixtures, 40 Ark. App. 94, 845 S.W.2d 15 (1992); Reeder v. Rheem Manufacturing, 38 Ark. App. 248, 832 S.W.2d 505 (1992); Taco Bell v. Finley, 38 Ark. App. 11, 826 S.W.2d 213 (1992). As discussed by the Court, objective findings are not limited to those that can be seen or ascertained by touch. Keller, supra. With regard to measurable findings, the Court has noted that measurable has been defined to mean "great enough to be worth consideration." Keller, supra (quoting Webster's Third New International Dictionary (Unabridged) (1976)). In addition, the Court has recognized that "measurable findings may involve the extent, degree, dimension, or quantity of the physical condition." Keller, supra. According to the Court, findings do not have to be exact to be measurable, and physicians are not "confined to any specific chart or guideline in making their evaluation of the existence or extent of physical impairment." Keller, supra.
The Court has also found that findings may satisfy the statutory requirements of Ark. Code Ann. § 11-9-704 (c)(1) even though there is a subjective component involved.Keller, supra; Reeder, supra; Taco Bell, supra. Furthermore, the Court has found that Ark. Code Ann. § 11-9-704 (c)(1) does not prohibit the Commission from considering other factors, even if purely subjective, so long as the record contains objective and measurable findings to support the Commission's ultimate decision. Keller, supra; Taco Bell, supra. In fact, the Court has found that Ark. Code Ann. § 11-9-704 (c)(1) "precludes an award for permanent disability only when it would be based solely on subjective findings." Keller, supra (quoting Reeder, supra) (emphasis in original).
The existence and extent of physical impairment must be established with medical evidence. The Commission has the authority and the duty to weigh medical evidence to determine its medical soundness, and we have the authority to accept or reject medical evidence. Reeder, supra; Mack v. Tyson Foods, Inc., 28 Ark. App. 229, 771 S.W.2d 794 (1989); Wasson v. Losey, 11 Ark. App. 302, 669 S.W.2d 516 (1984); Farmers Insurance Co. v. Buchheit, 21 Ark. App. 7, 727 S.W.2d 391 (1987). Likewise, the Commission is entitled to examine the basis for a physician's opinion, like that of any other expert, in deciding the weight to which that opinion is entitled. Reeder, supra. However, as with any evidence, we can not arbitrarily disregard the testimony of any witness. Reeder, supra; Wade, supra.
In the present claim, we find that objective and measurable physical findings support the existence of a physical impairment to the claimant's right arm and to her right shoulder. In this regard, Ms. Faye Villareal, one of the claimant's co-workers at Faulkner Nursing Home who participated in maneuvering the incapacitated resident on December 18, 1992, testified that she was instructed to accompany the claimant to Dr. Smith's office on December 18, 1992, after the work-related incident, and Ms. Villareal testified that she observed that the claimant's right arm had developed a blue color while they waited in Dr. Smith's office. In addition, Ms. Villareal testified that the claimant's right arm felt cool to the touch. Subsequent records from various medical providers also indicate observations at various times of a blue tint in the skin of the claimant's right arm and/or a decreased skin temperature on the claimant's right arm as compared to her left arm. Likewise, the bluish color and temperature differential were apparent at the hearing held on February 8, 1996.
The claimant testified that she experienced some degree of numbness in her hand almost immediately after her shoulder popped. According to the claimant, the numbness in her lower arm has progressively increased to the point that she currently is incapable of using her right hand. The claimant testified that she has experienced pain in her shoulder and upper arm of sufficient severity that she is incapable of effectively using her arm or shoulder. In this regard, Dr. Peek has measured atrophy in the claimant's right arm apparently related to disuse, and a bone scan ordered by Dr. Reginald Rutherford, a neurologist who has also followed and evaluated the claimant, also indicated right upper extremity changes consistent with disuse.
However, the claimant has undergone an exhaustive battery of diagnostic testing to determine a basis for her symptom presentation. Multiple MRI's, nerve conduction studies, and other diagnostic testing have failed to establish an anatomical abnormality consistent with the observable skin changes, the reported lower arm paresthesia, the upper extremity and shoulder pain, or the headaches which the claimant has reported. Dr. Peek has treated the claimant's right upper extremity with medication, physical therapy, a TENS unit, and bio-feedback therapy for an apparent dystrophy syndrome. However, Dr. Peek has acknowledged that a psychological component may be involved in the claimant's impairment. In that regard, Dr. Peek noted during his June 14, 1994, evaluation:
She has disuse atrophy of the upper [right] extremity. Whether this is from dystrophy or residual pain, conversion reaction or a combination, the end result is that she is primarily using her left hand to do her activities of daily living.
Notably, Dr. Peek, Dr. Peeples, and Dr. Rutherford have each indicated that the claimant will very likely never regain useful function of her right upper extremity because of the effects of prolonged disuse. However, Dr. Rutherford and Dr. Peeples have indicated that they each strongly suspect a significant psychological component to the claimant's right upper extremity disability, and both Dr. Peeples and Dr. Rutherford have opined that the claimant has experienced a conversion disorder. In that regard, Dr. Rutherford opined in his report dated March 8, 1994, that a "[r]eview of Mrs. Humphrey's psychological profile reveal significant and pervasive abnormality which from my perspective would be considered ample substraight for evolution of a conversion disorder." Likewise, Dr. Peeples testified that the global paresthesia which the claimant indicates that she experiences in her lower arm could not possibly be associated with any known nerve disorder because of the large number of nerves that would be involved. Dr. Peeples testified that he did not assign the claimant an impairment rating for her right shoulder and right arm dysfunction during his evaluation because diagnostic test results have not established any anatomical basis to support the claimant's symptom presentation.
The Arkansas Courts have recognized the compensability of a mental disorder or psychoneurosis, such as a conversion reaction. Wilmon v. Allen Canning Co., 38 Ark. App. 105, 828 S.W.2d 868 (1992); Boyd v. General Industries, 22 Ark. App. 103, 733 S.W.2d 750 (1987). However, the claimant has the burden of proving by a preponderance of the evidence that her psychological or emotional condition is causally related to her compensable injury. Henson v. Club Products, 22 Ark. App. 136, 736 S.W.2d 290 (1987); Boyd, supra; Wilmon, supra. Therefore, although the disabling effects of a mental disorder or psychoneurosis may be compensable, the claimant must establish causation by showing that the symptoms of the neurosis or disorder were triggered or precipitated by the physical injury. Boyd, supra.
In the present claim, we find that the greater weight of the evidence establishes that the claimant's work-related injury triggered a conversion disorder which has contributed, at least in part, to the claimant's right arm and right shoulder impairment. In this regard, extensive diagnostic testing indicates that the claimant experienced a relatively minor work-related upper right extremity injury which should have resolved with no permanent impairment. Dr. Rutherford has opined that his evaluation of the claimant's psychological profile indicates "ample substraight for evolution of a conversion disorder." Although Dr. Rutherford originally suspected clinical malingering, a subsequent bone scan and atrophy measurements indicated degenerative changes from disuse which are not consistent with clinical malingering. Dr. Rutherford later speculated that the claimant's somewhat irrational and incoherent behavior still suggests "a pre-morbid psychological disorder." However, all of the evidence in the record indicates that the claimant was asymptomatic in all respects prior to the work-related injury, but has remained consistently convinced since the incident that she has sustained increasingly disabling pain in her right shoulder and paresthesia in her lower right arm which have prevented her from using her right hand. Therefore, for the foregoing reasons, we find that the greater weight of the evidence establishes that, to the extent that a conversion disorder has contributed to the claimant's permanent physical impairment, the conversion disorder is a compensable consequence of her work-related injury.
In addition, we find that the preponderance of the evidence establishes that the claimant sustained a 35% permanent physical impairment rated to the whole body as a result of her arm, shoulder, and neck impairments. In this regard, the medical record indicates that Dr. Peek determined that the claimant reached maximum medical improvement on June 14, 1994, and additional medical and psychological care since that date have failed to improve the claimant's medical condition. Dr. Peek's permanent impairment evaluation indicates that the claimant has sustained a limitation of motion in the cervical spine as a result of cervical injury and surgery, with flexion limited to 30 degrees, extension to 20 degrees, rotation of 10 degrees to the right and 40 degrees to the left, with 30 degrees of tilt to the right and left, with muscle spasm apparent on the right side of the cervical spine. Dr. Peek indicated a trigger point and decreased range of motion in the claimant's right shoulder limited to 90 degrees. In addition, Dr. Peek measured a 1/2" atrophy of the claimant's right arm and forearm caused by disuse. Moreover, Dr. Peek, Dr. Peeples, and Dr. Rutherford have each indicated that the claimant will not regain effective use of her right upper extremity, and Dr. Peek has opined that the claimant's combined anatomical impairment to her neck, arm, and shoulder is 35% rated to the body as a whole.
In assessing the weight to be accorded Dr. Peek's 35% impairment rating, we note that Dr. Peeples had available Dr. Peek's prior impairment rating when Dr. Peeples performed his evaluation of the claimant at the respondent's request on May 1, 1995. With regard to Dr. Peek's prior impairment rating Dr. Peeples stated:
I am unable to correlate the patient's loss of arm function physically with her cervical surgery. I believe Dr. Peek's rating probably covers the entire upper extremity and the cervical area. Since I am not convinced the patient's right upper extremity is physically related to her injury in December of 1992, I would not provide an impairment rating for the upper extremity. Obviously if for psychological or other reasons the patient quit using her arm and it atrophies this produces substantial impairment and it is possible to lose function permanently of an extremity from disuse on a psychological basis even though there is no physical abnormality.
Moreover, Dr. Peeples' report indicates that he does not necessarily disagree with the degree of impairment observed and calculated by Dr. Peek, but he disagrees with Dr. Peek regarding whether the upper extremity impairment is causally related to the claimant's compensable injury. However, as discussed, we find that the claimant proved by a preponderance of the evidence that she sustained compensable impairments to her right arm and right shoulder in addition to the admittedly compensable impairment to her neck. Therefore, after considering the various reports of Dr. Peek, Dr. Peeples, and Dr. Rutherford, and all other evidence in the record, we find that the claimant has sustained a 35% permanent physical impairment rated to the whole body.
With regard to the claimant's assertion that she is permanently and totally disabled as a result of her injuries, the claimant was 36 years old at the time of the hearing, and she has a high school education. In 1987 the claimant completed a three month adult education program in computer business applications and earned a certificate after completing her study of Word Perfect, Word Star, and Basic programming.
The claimant worked as a certified nurse's assistant in general patient care at the Heritage Center, a nursing home in Conway for a total of approximately five and one-half years. In addition, the claimant managed a business telemarketing condominiums for two and one-half years. The claimant's duties in that employment included supervising telephone solicitors, payroll, hiring and firing personnel, and writing marketing scripts. The claimant testified that the firm was highly successful under her management. The claimant also worked as a secretary in a one-person office for less than a year where her duties included typing, filing, billing, and general clerical duties. The claimant testified that she has also worked in marketing at the Arkansas Educational Television Network. At the time of her injury, on December 18, 1992, the claimant had been employed by Faulkner Nursing Home for approximately six months as a staff coordinator. The claimant's duties in that position involved personnel management, verification of employee credentials, and patient care.
As discussed, the medical evidence indicates that the claimant's limitations are in her lower right arm, her right shoulder, and her neck. The claimant testified that she experiences limitations in neck motion which interfere to some degree with her ability to drive. The claimant testified that she also experiences muscle spasms in her right shoulder and headaches which appear to originate from the spasm and extend to her right temple.
The claimant's most significant impairment is clearly the perceived paresthesia and disuse associated with her lower right arm. However, the claimant testified that she has made several adjustments to compensate for an inability to use her right arm. In this regard, the claimant has learned to write with her left hand, and she has learned techniques to perform daily tasks, such as tying her shoes, tying trash bags, and putting on cosmetics without using her right hand. She continues to cook on occasion and performs chores around the house with the assistance of her husband and her children.
In an office note dated December 13, 1994, Dr. Peek observed that the claimant is a young woman and that it would be helpful to her condition to find employment which she could perform. At that time, Dr. Peek noted that the claimant was unable to drive the family's stick shift vehicle, and might therefore require home bound employment. However, Dr. Peek's subsequent note on March 14, 1995, and the claimant's testimony indicate that she has subsequently become able to drive and would therefore no longer be limited to homebound employment. Dr. Peek has also indicated that the claimant would be an appropriate candidate for retraining with a one-handed typing program. In that regard, the claimant indicated that she has a strong interest in computers but does not know whether she would be capable of operating a computer using only her left hand.
The claimant testified that she has not attempted to look for work since her neck surgery, and she has not investigated any type of vocational adjustment in addition to discussions she has had with rehabilitation case workers requested by the respondents. The claimant testified that she would like to return to work if she could resolve all of the problems with her neck and hand.
In short, the claimant's physical limitations will probably prevent her from returning to her former work in patient care as a nurse's assistant. However, the claimant has office skills, computer skills, and management skills which should be highly transferrable if the claimant decides to seek re-employment in an office environment. Moreover, the claimant's testimony regarding her achievements in managing a telemarketing firm indicate that she has developed experience and proficiency in that field, and the claimant has experience using telephone equipment and office equipment which she could operate with her current physical limitations with minimal retraining. Therefore, we find that the claimant failed to establish that her medical condition has combined with other factors to preclude her from employment in a relatively stable market. Consequently, we find that the claimant failed to make a prima facie case that she falls in the "odd lot" category or that she is permanently and totally disabled.
Because we find that the claimant is not permanently and totally disabled as a result of her combined impairments, we note that the claimant's multiple impairments include one impairment to a scheduled part of the body (lower arm), as well as impairment to two parts of the body which are not scheduled (neck and shoulder). With regard to the claimant's right arm impairment, an award for a scheduled injury is limited to the benefits provided in the statute for that scheduled injury, absent a finding of permanent and total disability. See, e.g., Anchor Construction Co. v. Rice, 252 Ark. 460, 479 S.W.2d 573 (1972); Springdale Farms v. McGarrah, 260 Ark. 483, 541 S.W.2d 928 (1976); Moyers Brothers v. Poe, 249 Ark. 984, 462 S.W.2d 862 (1971); Taylor v. Pfeiffer Plumbing Heating, 8 Ark. App. 144, 648 S.W.2d 526 (1983); Rash v. Goodyear Tire and Rubber Co., 18 Ark. App. 248, 715 S.W.2d 449 (1986);Haygood v. Belcher, 5 Ark. App. 127, 633 S.W.2d 391 (1982). In addition, an injury scheduled under Ark. Code Ann. § 11-9-521 is payable without regard to subsequent earning capacity. Consequently, an award for a scheduled injury cannot be increased by considering wage loss factors, unless the claimant proves that she is permanently and totally disabled. See, e.g., Rice, supra; McGarrah, supra; Taylor, supra; Rash, supra; Haygood, supra.
Because this Commission has no way of knowing how much of the claimant's 35% permanent physical impairment rated to the whole body is attributable to the claimant's scheduled arm impairment, as opposed to the non-scheduled neck and shoulder impairments, we find it necessary to remand this case to the administrative law judge for the purpose of receiving additional evidence to determine what portion of the claimant's 35% impairment rating is attributable to the scheduled arm impairment. In addition, because compensation for a physical impairment to the arm is payable without regard to subsequent wage loss, the administrative law judge is also directed to determine the degree of impairment to the claimant's earning capacity related to the claimant's neck and shoulder impairments without regard to the scheduled arm impairment.
In reaching our decision that the claimant's arm impairment is a scheduled impairment, we note that the Full Commission has previously held that an impairment to the arm caused by reflex sympathetic dystrophy is apportionable to the body as a whole because reflex sympathetic dystrophy involves a physical defect most likely located within the central nervous system at the level of the spinal cord, and not within the extremity itself. Rachel Williams v. Moll Tool Plastics, Full Workers' Compensation Commission, May 1, 1990 (Claim No. D701514); Tina Haskins v. TEC, Full Workers' Compensation Commission, July 14, 1993 (Claim No. E107391).
However, in the present case, we find that the greater weight of the evidence establishes that the claimant has not experienced reflex sympathetic dystrophy. In this regard, Dr. Peeples testified that he reviewed all of the claimant's medical records and he did not find any of the classic symptoms of reflex sympathetic dystrophy (swelling, sweating, increased skin temperature, hypersensitivity, bone demineralization) in the claimant's medical records. Although Dr. Peek referred to a "dystrophy" at various stages in his office note, Dr. Peeples testified that general medical usage of the term "dystrophy" designates a descriptive term and not a diagnosis. In that regard, Dr. Peeples testified that there are a number of possible causes of "dystrophy" including disuse dystrophy and reflex sympathetic dystrophy, among others.
Based on discoloration of the claimant's right hand, Dr. Peek did initially diagnose "sympathetic dystrophy" of the claimant's right hand on April 8, 1993. However, other than that one notation of "sympathetic dystrophy", Dr. Peek used the term "dystrophy", and not "sympathetic dystrophy" in all subsequent reports. Dr. Peek's notes after April 8, 1993, tend to indicate that Dr. Peek changed his initial diagnosis of "sympathetic dystrophy" after April 8, 1993, and treated the claimant thereafter for a "dystrophy" of unknown etiology. Moreover, the exhaustive diagnostic and clinical studies ordered and performed by Dr. Peek and Dr. Rutherford indicate that the claimant's right arm impairment is not related to any identifiable physical abnormality located outside the arm itself. Consequently, for the reasons discussed herein, we find that the greater weight of the evidence establishes that the claimant's right arm impairment is to a scheduled part of the body, and compensation for that impairment is therefore limited to the schedule under Ark. Code Ann. § 11-9-521 (1987).
Therefore, after a de novo review of the entire record, and for the reasons discussed herein, we find that the claimant has failed to prove by a preponderance of the evidence that she is permanently and totally disabled. In addition, we find that the claimant proved by a preponderance of the evidence that she has sustained a 35% physical impairment to the body as a whole as a result of impairment to her arm, shoulder, and neck. We hereby remand this case to the administrative law judge for the purpose of determining what portion of the 35% anatomical impairment rating is attributable to the claimant's scheduled arm impairment, expressed as a rating to the upper extremity and not as a rating to the body as a whole, and to determine the extent of impairment to the claimant's future wage earning capacity without regard to the scheduled arm impairment.
IT IS SO ORDERED.
CONCURRING AND DISSENTING OPINION
I concur with the opinion of the majority finding that the admittedly compensable injury caused a conversion disorder, which significantly contributed to the permanent anatomical impairment to claimant's right upper extremity. Additionally, I agree that claimant is entitled to benefits for a total permanent anatomical impairment of 35%. However, I must respectfully dissent from the opinion of the majority finding that claimant has failed to prove by a preponderance of the evidence that she is permanently and totally disabled, as well as the finding that the permanent impairment to claimant's right upper extremity below the shoulder represents a scheduled injury, which cannot be apportioned to the body as a whole.
It is undisputed that while lifting a resident, claimant felt and heard a pop in her right shoulder. There was absolutely no direct injury to the arm below the shoulder. However, shortly after the accident, claimant's entire right upper extremity, including the hand, went numb, turned a blue color and felt cool to the touch. An abnormality was discovered at the C5-6 level and surgery was performed by Dr. Peek. Claimant continued to experience intractable pain and paresthesia in the right upper extremity. She also experiences continuous pain and muscle spasms in the right shoulder and neck, which resulted in frequent headaches. The greater weight of the evidence indicates that claimant experienced a compensable controversion disorder which prevented her from using the extremity. As a result of this disuse, claimant developed atrophy in the arm and shoulder. Vocational rehabilitation efforts were suspended by respondent.
In my opinion, claimant has presented a prima facie case that she falls within the odd-lot category, thereby shifting to respondents the burden of going forward with evidence that some kind of suitable work is regularly and continuously available to the claimant. M. M. Cohn Co. v. Haile, 267 Ark. 734, 589 S.W.2d 600 (Ark.App. 1979). Claimant does not have to be "utterly helpless" in order to be entitled to benefits for total disability. While claimant may be able to work a small amount, the compensable injury restricts her to "services that are so limited in quality, dependability, or quantity that reasonably stable market for them does not exist." Hyman v. Farmland Feed Mills, 24 Ark. App. 63, 748 S.W.2d 151 (1988). There has been insufficient evidence presented by respondents to overcome claimant's prima facie case.
Claimant has done an admirable job adjusting to the activities of daily living. However, the evidence indicates that suitable work is not regularly and continuously available to claimant and her "future job prospects are negligible." See, Lewis v. Camelot Hotel, 35 Ark. App. 212, 816 S.W.2d 632 (1991). Therefore, I find that claimant has proven by a preponderance of the evidence that she has been rendered permanently and totally disabled.
In my opinion, even if claimant is not permanently and totally disabled, any permanent anatomical impairment to her right upper extremity below the elbow is the result of an unscheduled injury, which should be apportioned to the body as a whole. As noted above, there was not a direct injury to claimant's arm. The disability associated with claimant's arm does not appear to be related to a physical abnormality located elsewhere in the body. The disability is caused by a psychological condition. This psychological condition has resulted in objective physical findings, representing a classic case of conversion disorder. A psychological condition is an unscheduled injury, which will support an award for wage loss disability. Wilson Co. v. Christman, 244 Ark. 132, 424 S.W.2d 863 (1968); Terral v. Austin Bridge Co., 10 Ark. App. 1, 660 S.W.2d 941 (1983);Boyd v. General Industries, 22 Ark. App. 103, 733 S.W.2d 750 (1987); Paul I. Tiggelbeck v. Tigg Corporation, Full Commission opinion filed August 13, 1990 ( D812946).
As noted by the court in Taylor v. Pfeiffer Plumbing Heating Co., 8 Ark. App. 144, 648 S.W.2d 526 (1983), "[e]ven if the effects of the shoulder injury extended into his arm (between the elbow and shoulder), this fact would not make the injury a scheduled one." Further, in Rachel Williams v. Moll Tool Plastics, Full Commission opinion filed May 1, 1990 ( D701514), we held that a permanent disability to the arm caused by reflex symptomatic dystrophy was an unscheduled injury, which could be apportioned to the body as a whole.
In my opinion, when seeking an award based on loss of wage earning capacity, claimant should not be limited to the scheduled award for an injury to the arm when the clearly compensable unscheduled psychological injury caused the permanent anatomical impairment to the arm.
For the foregoing reasons, I concur in part and dissent in part.
PAT WEST HUMPHREY, Commissioner
CONCURRING AND DISSENTING OPINION
I concur in the majority's finding that the claimant has failed to prove by a preponderance of the evidence that she is permanently and totally disabled. However, I respectfully dissent from the majority's opinion finding that the claimant proved by a preponderance of the evidence that her conversion disorder is a compensable consequence of her work-related injury and that she sustained a 35% physical impairment to the body as a whole as a result of impairment to her arm, shoulder and neck. If I were to conclude that the claimant is entitled to any impairment for her arm, which I do not find, I do agree with the majority's conclusion that the claimant's right arm impairment is limited to the schedule as set forth in Ark. Code Ann. § 11-9-521 (1987). My review of the evidence indicates that the claimant's work-related injury did not trigger a conversion disorder that contributed to the claimant's right arm and right shoulder impairment. Therefore, I find that the claimant has sustained a 10% impairment to the body as a whole as a result of the neck injury and successful surgery.
In my opinion, the medical evidence demonstrates that the claimant's right arm dysfunction is unrelated to her compensable neck injury and surgery. The claimant has been examined by Dr. Reginald Rutherford, a neurologist, Dr. David Collins, an orthopedic surgeon, and Dr. Earl Peeples, an orthopedic surgeon. Each of these highly competent physicians have opined that the claimant's right arm complaints are not related to her neck injury and surgery.
Dr. Peek referred the claimant to Dr. Rutherford when he could not find the origin of the claimant's right arm complaints. In a report dated March 16, 1994, Dr. Rutherford noted, after a thorough examination of the claimant, some "coolness of the right hand with prior vascular studies proving normal and contemporary examination failing to demonstrate other clinical features suggestive of reflex sympathetic dystrophy." Dr. Rutherford opined that the coolness in the claimant's right hand was the result of "minor sympathetic dysfunction related to disuse/misuse of the right upper extremity." Significantly, Dr. Rutherford found that the claimant was malingering. He also found that:
The motor and sensory impairment noted of the right upper extremity noted on contemporary examination is clearly volitional in nature. The observations which allow this conclusion comprise non-physiologic co-contraction of non-tested muscles with no discernable volitional effort in tested muscles on manual muscle testing of the right upper extremity as described above and sensory impairment on joint position sense and testing for sensory inattention. To elaborate upon this, Mrs. Humphrey was consistently incorrect on predicting the direction of excursion of the distal phalanx of the right index finger and right hand on repetitive testing. If there was an underlying objective basis for impaired joint position sense of which there is not and Mrs. Humphrey was guessing the direction of excursion, the anticipated pattern of response based upon law of probability is that she would guess the direction of excursion correctly on some trials and incorrectly on other trials. The above testing was performed with sufficient repetition that her absolute consistency pertaining to 100% error in this form of testing was felt to represent unequivocal evidence of a volitional basis for her said sensory impairment of the right upper extremity. This was further supported by the observation that on double simultaneous sensory testing she stated "neither" when only the right upper extremity was stimulated. The above pattern of motor and sensory dysfunction is indicative of malingering rather than a conversion reaction operant at a subconscious level. Mrs. Humphrey's aberrant behavior is likely reinforced both socially and economically related to manipulation of relatives and an unresolved workers' compensation claim, respectively.
After receiving Dr. Rutherford's initial findings, the respondent carrier had Dr. Collins perform an independent medical evaluation of the claimant. In assessing the claimant's scapular winging of the shoulder, Dr. Collins stated:
The shoulder is stable. Impression:
Functional winging, right shoulder. The patient is informed that this is an acquired/habitual disorder which does not imply a structural problem. In my opinion it does not contribute to permanent partial impairment. It does not restrict her in her activities. On the basis of her shoulder exam, I feel that she can be unrestricted in her activities and recognize no impairment secondary to this. She will continue to follow with Dr. Rutherford.
After receiving Dr. Collins' report, Dr. Rutherford further found:
I remain of the opinion that Mrs. Humphrey's problem is that of a conversion disorder with volitional features operant as previously outlined. Mrs. Humphrey was advised that whether or not she experiences any clinical improvement rests solely with her in which she must commence to use the right arm if she is to achieve any clinical improvement. In discussing this with Mrs. Humphrey, it was evidently apparent that she has no insight into her condition, demonstrating by her responses that she was both poorly coherent and somewhat irrational in her thought processes. This is considered indicative of a pre-morbid psychological disorder, which is the basis for her current dysfunction.
Dr. Peeples performed an independent medical evaluation of the claimant on May 1, 1995. Dr. Peeples found that the loss of use in the claimant's right arm was "in all probability psychological in origin and not physically based. He stated further noted:
3. I am unable to delineate a specific physical relationship between the surgical procedure at C5-6 anteriorly and the global loss of strength and atrophy of the right upper extremity. Obviously the single nerve root nearby at the time of surgery would not cause this type of neurological condition even if completely destroyed which it was not. Furthermore, the patient's symptoms presented after surgery by a period of over one month and careful neurological examination indicated they did not have a pattern consistent with an organic basis. This was also documented by EMG. I did not find evidence of classic reflex dystrophy. It is many times very difficult to sort this out from nonphysical pseudoparalysis and pain complaints.
Dr. Peeples also stated in his deposition that he agreed with Dr. Rutherford's opinion that the claimant's right arm dysfunction was the result of a conversion disorder with volitional features. He also suspected "a non-physical basis to this woman's arm paralysis," which was operant at either an intentional or subconscious level, or perhaps both.
In addition, there is no objective medical basis for the claimant's inability to use her right arm. EMG nerve conduction testing in April of 1994 proved to be completely normal except for focal dysfunction of the median nerve localized to the wrist. This was considered an incidental finding unrelated to the claimant's diminished function of the right arm.
The claimant is required to show that her right arm complaints are the natural and probable consequence of her compensable injury. In my opinion, the evidence simply does not support such a finding. Three highly qualified specialists have stated unequivocally that the claimant's right arm complaints are totally unrelated to her compensable neck injury and that the claimant has sustained no permanent anatomical impairment as a result of her right arm complaints. The evidence shows that the claimant is suffering from a conversion disorder. However, this is totally unrelated to the claimant's compensable neck injury and subsequent surgery. Accordingly, I find that the 10% whole body impairment rating assessed by Dr. Peeples to be fair, reasonable and supported by objective physical findings. Therefore, I respectfully dissent from the majority opinion finding otherwise.
MIKE WILSON, Commissioner