Opinion
CLAIM NO. E220063
OPINION FILED MAY 31, 1994
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE JAY N. TOLLEY, Attorney at Law, Fayetteville, Arkansas.
Respondents represented by the HONORABLE CURTIS NEBBEN, Attorney at Law, Fayetteville, Arkansas.
Decision of Administrative Law Judge: Affirmed in part, reversed in part, and vacated in part.
OPINION AND ORDER
The respondents appeal an opinion and order filed by the administrative law judge on August 12, 1993. In that opinion and order, the administrative law judge found that the claimant is entitled to permanent partial disability compensation in an amount equal to 5% to the right upper extremity, and the administrative law judge found that the claimant is entitled to a vocational rehabilitation evaluation and possible retraining program. After conducting a de novo review of the entire record, we find that the administrative law judge's decision must be affirmed in part, reversed in part, and vacated in part.
The claimant worked for the respondent employer for approximately three years, and, during this period of time her primary duties involved making homemade biscuits. To make these biscuits, the claimant mixed flour, shortening, buttermilk, and other ingredients together with her fingers. Once the dough was mixed, the claimant moved a portion of dough to a floured table, and she kneaded it with both hands and with an extra large rolling pin which required her to exert pressure with both hands and arms. On busy days, the claimant made approximately 20 batches of biscuits in this manner, and on light days, she made 13 to 14 batches.
In February or March of 1992, the claimant began to experience pain in the area of her right elbow. She was initially treated by Dr. Randall Oates, a family practitioner, and Dr. Oates diagnosed an overuse syndrome or tendonitis of the right elbow. Dr. Oates took the claimant off work for a period of time, and, while she was off work, the condition improved. However, she experienced an exacerbation of her symptoms when she returned to work again. Consequently, Dr. Oates again took her off work. While she was off work, her condition again improved, but when she returned to work, she again experienced an exacerbation of her symptoms. This pattern of intermittent problems continued over the next several months. She also began to experience similar problems with her left arm, although the symptoms were not as severe as on the right.
Due to the claimant's continued problems, Dr. Oates referred her to Dr. Thomas R. Dykman, a rheumatologist. Dr. Dykman examined the claimant on October 14, 1992, and the only finding which his examination revealed was "mild tenderness to pressure at the cervical and elbow regions" and "prominent tenderness along the lateral epicondyle which increased with reinforcement maneuvers." Otherwise, his examination did not reveal any positive findings. Dr. Dykman diagnosed lateral epicondylitis, commonly known as tennis elbow, and mild fibrositis secondary to the epicondylitis, and he recommended continued conservative treatment. He indicated that he did not need to see the claimant again unless Dr. Oates desired further consultation.
The claimant returned to Dr. Oates on October 30, 1992, and Dr. Oates also noted local tenderness over the right lateral epicondyle at that time. Then, on November 27, 1992, Dr. Oates opined that the claimant would not be able to continue performing work involving extensive use of her arms, and he recommended that the claimant pursue vocational rehabilitation. In fact, Dr. Oates apparently recommended as early as June of 1992, that the claimant change occupations to one requiring less use of her right arm. The claimant last worked in November of 1992, when Dr. Oates took her off work. In February of 1993, the respondent employer advised her that they did not have work available within her restrictions.
On March 25, 1993, the claimant was examined by Dr. James F. Moore, an orthopedic specialist. Dr. Moore's examination also revealed tenderness over the lateral epicondyle, and the examination also revealed pain with resisted extension of the right elbow over the extensor origin. However, no other abnormal findings were revealed, and the examination revealed full range of motion of the elbow. Consequently, Dr. Moore also diagnosed right tennis elbow. He injected the elbow with DepoMedrol, but he opined that the claimant might need surgery because she had "been resistant to many different treatments."
The claimant was also examined by Dr. Alice M. Martinson, an orthopedic surgeon, on June 10, 1993, at the request of the respondents. The claimant had not worked since November of 1992, and Dr. Martinson indicates that the claimant advised her that she was experiencing "only a mild non-disturbing soreness." Dr. Martinson's report describes the claimant's complaint as "more of an awareness of that part of her anatomy than it is a pain." However, the claimant advised her that the use of her right arm for any significant forceful repetitive work increased her symptoms. Dr. Martinson's examination revealed a full range of motion of the claimant's right elbow. However, the claimant also demonstrated some discomfort to deep pressure within the substance of the common extensor muscle mass, and she demonstrated some discomfort in the same area with resisted wrist extension. Despite this discomfort, the claimant was able to generate normal strength against resistance. Objective testing with a Jamar dynamometer revealed good pinch and grip strength. Based on the finding of tenderness, Dr. Martinson opined that the claimant has right lateral epicondylitis, and she noted that the claimant has minimal symptoms when she avoids repetitive forceful use of her arm. Dr. Martinson also opined that the claimant sustained a 5% permanent physical impairment to her right upper extremity.
With regard to the claimant's entitlement to compensation for a permanent physical impairment, an injured worker has the burden of proving by a preponderance of the evidence that she is 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. Physical impairments occur when an anatomical, physiological, or psychological abnormality limits the ability of the worker to effectively use part of the body or the body as a whole. Consequently, an injured worker must prove that the work-related injury resulted in, or worsened, a permanent anatomical, physiological, or psychological abnormality which limits the ability of the worker to effectively use part of the body or the body as a whole. Therefore, in considering such claims, the Commission must first determine whether the evidence shows the presence of an abnormality which could reasonably be expected to produce the permanent physical impairment alleged by the injured worker.
With regard to this determination, 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 (quotingWebster'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).
In general, 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 cannot arbitrarily disregard the testimony of any witness. Reeder, supra; Wade, supra.
In considering whether the findings support the existence of an abnormality, the Commission obviously must consider whether the finding is consistent with the symptoms described by the worker. In addition, the Commission must assess the reliability and dependability of the findings. We have previously recognized that the reliability and dependability of medical findings vary. William Crow v. Weyerhaeuser, Full Workers' Compensation Commission, Mar. 24, 1993 (Claim No. D919732). Likewise, the weight to be given to medical findings varies in relation to the reliability and dependability of the finding.
Abnormalities which can be confirmed without any subjective input from the injured worker present little difficulty. In this regard, some abnormalities are readily observable without report of laboratory procedures or subjective input from the worker, and observations of such abnormalities are entitled to great weight. Likewise, other abnormalities may be confirmed through extremely reliable laboratory procedures which are devoid of any subjective input from the worker, such as a x-ray, a MRI, or CT scan. Such findings are also entitled to great weight.
However, cases where the abnormality is primarily manifested in the subjective complaints of the injured employee are more difficult. In such cases, clinical diagnostic procedures may confirm the presence of an abnormality which is consistent with the subjective complaints of the worker. In this regard, the results of such clinical diagnostic procedures may satisfy the requirements of Ark. Code Ann. § 11-9-704 (c)(1) even though there is a subjective component involved. Reeder, supra. In fact, some abnormalities can only be confirmed by clinical diagnostic procedures which rely to some extent on subjective input from the injured worker. See, Shirley Dean Keller v. Darling Store Fixtures, Full Workers' Compensation Commission, Sept. 9, 1991 (Claim No. D913097). However, greater scrutiny must be used in weighing findings which rely to some extent on subjective input from the injured worker. Certainly, the ability of the injured worker to manipulate the results must be considered in determining the weight to be given to such findings, and any evidence indicating that the injured worker manipulated the result affects the weight given to the finding. In this regard, evidence that controls have been utilized to minimize the possibility of contrived responses may bolster the reliability and dependability of the finding. Likewise, the reliability and dependability of the finding may be bolstered where the diagnostic procedure produces consistent responses on repeated trials over a period of time. In addition, the extent to which the reliability and dependability of the clinical procedure is accepted by the medical profession may affect the weight given to the finding.
In the present claim, the physical examination of each of the physicians who examined the claimant revealed prominent tenderness in the area of the lateral epicondyle of the humerus, and the examinations of Dr. Dykman, Dr. Moore, and Dr. Martinson revealed increased pain with resisted extension maneuvers of the elbow, wrist, or fingers. Both of these findings are consistent with the clinical procedures commonly used in the medical profession to diagnosis epicondylitis. See also, The Merck Manual, 15th ed. (1987). In Reeder, supra, the Arkansas Court of Appeals found that procedures similar in nature to these procedures satisfied the requirements of Ark. Code Ann. § 11-9-704 (c)(1), even though the procedure relied on the subjective response of the claimant. Consequently, we find that the findings of tenderness over the lateral epicondyle and the increased pain with resisted extension maneuvers satisfies the statutory requirements of Ark. Code Ann. § 11-9-704 (c)(1). However, we note that both of these procedures are subject to manipulation by the patient, and there is no evidence that any controls were utilized to minimize the possibility of contrived responses. Consequently, although there is no suggestion that the claimant contrived her responses, the reliability and dependability of the findings are diminished, and the weight given to the findings must be adjusted accordingly.
Nevertheless, even though these findings may suggest the existence of a condition which is consistent with the claimant's complaints, these findings do not establish the presence of a permanent physical impairment. Lateral humeral epicondylitis is commonly defined as "inflammation of the epicondyle or of the tissues adjoining the epicondyle of the humerus." Dorlands Illustrated Medical Dictionary, 27th ed. (1988); Attorney's Dictionary of Medicine (1994). Moreover, the finding of tenderness over the lateral epicondyle and increased pain with resisted extension merely indicates the presence of inflammation. These findings, in themselves, do not indicate the presence of any permanent abnormality. Consequently, the findings in the present claim merely indicate the presence of inflammation, and inflammation in itself is not a permanent condition. Although the cause or origin of inflammation may be a permanent abnormality, there are no findings indicating the presence of such a permanent abnormality in the present claim.
In addition, only Dr. Oates and Dr. Martinson have rendered any opinion with regard to whether the claimant sustained any permanent impairment. Dr. Oates, who treated the claimant for the longest period of time, opined that he did not think that the condition was permanent. In this regard, Dr. Oates made the following comments:
In summary, she has had a puzzling persistent overuse syndrome and tendonitis in her arms, which had been aggravated by her continued overuse at work. However, even since she has discontinued work, she has continued to have puzzling chronic pain, which is difficult to explain. She has been hesitant to receive the treatment which I expect to resolve this. I have no reason to think that this problem would be a permanent condition. However, if she continues to do repetitive work I have every reason to think that she will have more problems in the future. At this point I do not state that she has a permanent disability. However, she does need job rehabilitation in an occupation which will avoid over use.
As discussed, Dr. Martinson opined that the claimant sustained a 5% permanent impairment to her upper extremity. However, in reaching this conclusion, Dr. Martinson made the following comments:
The AMA Guidelines do not fit this clinical situation well. At this point she has no objective [emphasis in original] physical abnormalities in her right upper extremity with the exception of the tenderness. The Guidelines do permit some latitude in those cases where the severity of the clinical findings does not correspond to the true extent of the physical problem. On that basis, I believe it would be appropriate to assign her a five percent impairment rating for her dominant right upper extremity because of her underlying soft tissue abnormality and the likelihood of recurrence when put to use.
Consequently, Dr. Martinson's opinion is based on her perception of the "true extent of the physical problem," which she developed after examining the claimant on one occasion. With regard to the nature of this problem, Dr. Martinson makes the following comments:
The customary course of this condition is one of exacerbation and remission depending upon the amount and type of use demanded of the muscles of the arm. The underlying pathology is believed to be one of microscopic tears within the substance of the muscle origin. These heal with scar which, like all scar, responds poorly to additional repetitive stretching producing chronic inflammatory signs and symptoms. . . .
Consequently, Dr. Martinson's opinion is based on her assumption that scar tissue is in fact present which is causing the inflammation. However, as discussed, the findings of tenderness and increased pain with resistive extension merely establish the presence of inflammation; these findings do not indicate the presence of scar tissue or any other permanent impairment, a fact which Dr. Martinson concedes when she recognizes that there are no objective physical abnormalities in her right upper extremity with the exception of tenderness. In addition, with regard to Dr. Martinson's explanation of the source or cause of the inflammation, we note that there is disagreement over the etiology or pathegonsis of epicondylitis. See, Attorney's Textbook of Medicine, § 4.72 (1994); The Merck Manual, 15th ed. (1987). Consequently, we find that Dr. Martinson's opinion is based on speculation and conjecture and that her opinion regarding permanent impairment is entitled to little weight.
Therefore, considering the lack of findings establishing a permanent physical impairment and the lack of findings to support Dr. Martinson's opinion, we find that the claimant failed to prove by a preponderance of the evidence that she is entitled to compensation for a permanent physical impairment.
With regard to the administrative law judge's finding regarding a vocational rehabilitation evaluation and possible retraining program, we note that neither party raised these issues in the prehearing filings or at the hearing. Consequently, the issue was not submitted nor developed by either party. The decision of an administrative law judge which is based upon a finding of fact not submitted or developed by either party denies the losing party the right to be heard on that issue. Arkansas Louisiana Gas Company v. Grooms, 10 Ark. App. 92, 661 S.W.2d 433 (1983). Therefore, we find that the administrative law judge's decision regarding these issues must be vacated.
Finally, we note that the administrative law judge also found that the claimant was entitled to additional temporary total disability compensation through June 10, 1993. The respondents have not appealed this finding. In this regard, Dr. Martinson opined after her June 10, 1993, examination of the claimant that her condition had plateaued. The claimant did attempt to locate employment during this time, but she was unable to continue this pursuit due to the problems she was experiencing. In fact, she returned unemployment compensation checks she received because she was physically unable to search for employment, as required. Consequently, we find that the preponderance of the evidence establishes that the claimant was in her healing period and totally incapacitated from working during this period. Therefore, we find that the claimant is entitled to temporary total disability compensation for this period.
Accordingly, after conducting a de novo review of the entire record, and for the reasons discussed herein, we find that the claimant failed to prove by a preponderance of the evidence that she is entitled to compensation for a permanent physical impairment. Therefore, we find that the administrative law judge's decision in this regard must be reversed. In addition, we find that the administrative law judge's decision with regard to a vocational rehabilitation evaluation and possible retraining program must be vacated. However, we find that the claimant proved by a preponderance of the evidence that she is entitled to temporary total disability compensation through June 10, 1993, and we find that the administrative law judge's decision in this regard must be affirmed. With the exception of portions pertaining to compensation for a permanent physical impairment and to a vocational rehabilitation evaluation and possible retraining, the respondent is ordered to comply with the order contained in the administrative law judge's August 12, 1993, opinion and order.
All accrued benefits shall be paid in a lump sum without discount and with interest thereon at the lawful rate from the date of the Administrative Law Judge's decision in accordance with Ark. Code Ann. § 11-9-809 (1987).
IT IS SO ORDERED.
DISSENTING OPINION
I must respectfully dissent from the opinion of the majority finding that claimant is not entitled to any benefits for permanent anatomical impairment.
Each physician to examine claimant noted tenderness over the lateral epicondyle or increased pain with resisted extension maneuvers or both. I certainly agree that these findings are objective and measurable. However, I cannot agree that "there is no evidence that any controls were utilized to minimize the possibility of contrived responses." In my opinion, the fact that "tenderness over the lateral epicondyle and the increased pain with resisted extension maneuvers" were consistent findings by each examining physician over a prolonged period of time ensures the "reliability and dependability of the findings."
Additionally, the permanency of claimant's condition is adequately supported by the increased symptoms claimant experienced whenever she tried to return to work or otherwise use the extremity in any meaningful way and the opinions of the physicians that claimant has permanent restrictions which preclude any employment requiring extensive or repetitive use of the extremity. In fact, the employer terminated claimant's employment because there was no work available within the permanent restrictions imposed by the treating physicians. The mere fact that the medical profession may not be sure of the exact pathology involved with epicondylitis is insufficient to support a finding that the condition is not a permanent abnormality. For the foregoing reasons, I dissent. The opinion of the Administrative Law Judge finding that claimant is entitled to benefits for permanent anatomical impairment in an amount equal to 5% to the upper extremity should be affirmed.
PAT WEST HUMPHREY, Commissioner