Williams v. Drew County Road Department

Full title: JOE W. WILLIAMS, EMPLOYEE, CLAIMANT v. DREW COUNTY ROAD DEPARTMENT…

Court: Before the Arkansas Workers' Compensation Commission

Date published: May 29, 1998

1998 AWCC 191 (Ark. Work Comp. 1998)

Opinion

CLAIM NO. E406727

OPINION FILED MAY 29, 1998

Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.

Claimant represented by the HONORABLE SARA M. SAWYER, Attorney at Law, Monticello, Arkansas.

Respondents represented by the HONORABLE BETTY J. DEMORY, Attorney at Law, Little Rock, Arkansas.

Decision of the Administrative Law Judge: Affirmed as modified.

OPINION AND ORDER

[2] The respondents appeal those portions of the administrative law judge's opinion filed on December 8, 1997 finding that the claimant has sustained a 50% impairment to the left wrist and finding that the respondents have controverted the claimant's entitlement to permanent partial disability benefits in excess of 17% to the left upper extremity below the elbow. After a de novo review of the entire record, and for the reasons discussed herein, we find that the administrative law judge's decision must be affirmed as modified.

The claimant sustained an admittedly compensable injury on April 11, 1994. This injury occurred when the claimant got his hand caught in a piece of machinery with a resulting crush injury to his hand, fingers, and wrist. The claimant was surgically treated for this injury by Dr. Charles Clark, an orthopedist in Pine Bluff, Arkansas. A second surgery was later performed on the claimant by Dr. Marsha Hixon to repair a broken pin that had been placed in the claimant's hand by Dr. Clark.

The respondents accepted the claim as compensable and provided the claimant medical care and disability benefits. In a letter dated November 3, 1994, Ms. Jodie Sullivan, a claims adjuster for the respondents' administration company, stated to the claimant that they would agree to a 30% disability rating to the hand, relying on reports from Dr. Clark. The respondents apparently initiated benefit payments to the claimant in accordance with this letter. The claimant later filed a claim in December of 1994, requesting permanent disability benefits contending that the report from Dr. Clark referred to in the respondents' November letter, assessed a 50% impairment to the arm below the elbow instead of 30% to the hand. Eventually, the respondents agreed to that position and paid the claimant the additional 20% impairment. However, the respondents would not agree that the claimant's attorney was entitled to a fee for the claimant's receipt of those additional permanent disability benefits. Later, the claimant was seen by Dr. Marsha Hixon who opined on August 1, 1996, that the claimant had a 19% impairment to the left upper extremity as a result of injuries to his fingers and wrist suffered in his compensable injury. The respondents then took the position that they had overpaid the claimant for his permanent disability benefits and requested that they be granted a credit or offset against any future benefits the claimant receives. At the time of the hearing, the only benefits to which the credit would have applied would have been for twelve days of disability the claimant sustained while recovering from the surgery performed by Dr. Hixon.

The claimant contends that, but for his attorney's efforts, the respondents would not have paid the claimant permanent disability benefits based upon an additional 20% impairment. On that basis, the claimant has taken the position that the respondents controverted the claimant's entitlement to benefits in excess of 30% to his hand, and that the claimant's attorney is entitled to a fee on those excess benefits. The respondents contend that they did not controvert this case at any point and any failure to pay the claimant's permanent disability benefits was the result of a misunderstanding of Dr. Clark's report and that they rectified the position as soon as they had obtained additional information regarding Dr. Clark's opinion. In the alternative, the respondents contend that the claimant's correct impairment rating was 17% (by reducing Dr. Hixson's rating), that their previous payment to the claimant of permanent disability benefits based upon a 50% anatomical impairment to his hand constitutes an overpayment, and that they are entitled to a credit based upon an overpayment of benefits.

The administrative law judge awarded the claimant anatomical impairment benefits based upon a 50% impairment to the arm below the elbow and therefore denied a credit based upon any alleged overpayment. The judge further found that the respondents had controverted the claimant's entitlement to all benefits in excess of 17% impairment to the left upper extremity.

The first issue that must be determined in this appeal is the extent of the claimant's permanent disability. In finding that the claimant was entitled to a 50% impairment to the arm below the elbow, the administrative law judge relied primarily upon Dr. Clark's opinion. The judge found that Dr. Clark's opinion was entitled to significant weight because Dr. Clark had specifically stated in his medical reports that he was basing his impairment rating upon the AMA Guides. In regard to Dr. Hixon's report, the administrative law judge specifically noted that Dr. Hixon did not set out in her report a reference to the AMA Guides.

The claimant's anatomical impairment to his wrist and fingers is supported by objective and measurable findings, and the claimant's work-related injury is clearly the major cause of the anatomical impairment at issue in this case. However, in the present case, the parties disagree as to which of the doctors correctly applied the AMA Guides in assessing the claimant's permanent impairment. Our review of both of the doctor's medical reports, as well as the pertinent sections of the AMA Guides to Permanent Impairment, Fourth Edition, lead us to conclude that both doctors relied upon the AMA Guides in evaluating the extent of the claimant's permanent impairment. The discrepancy in their opinions is not based upon any erroneous application of the AMAGuides, but instead reflects a difference in the opinions of the doctors as to the severity of the claimant's injuries.

Much of the confusion to the extent of the claimant's permanent disability can be attributed to two factors. The first of those factors is that the claimant suffered injuries to separate and distinct parts of his body. The injuries to the claimant's fingers, since they involve multiple digits, were properly apportioned to his hand. However, the claimant also sustained a severe injury to his wrist, which, according to the Schedule of Injuries set out in Ark. Code Ann. § 11-9-521 (a) (2), is apportioned to the arm below the elbow.

The second problem in assessing the extent of the claimant's anatomical impairment is that he was treated by two separate physicians, with one of them providing treatment almost solely to the claimant's fingers. These two physicians both evaluated the claimant but simply reached a different conclusion as to how much impairment the various injuries caused the claimant to suffer.

Following his injury, the claimant came under the treatment of Dr. Clark who performed surgery to set the claimant's broken fingers and to repair the damage to his wrist. While the claimant's wrist injury eventually resolved, albeit with a significant amount of anatomical impairment, the claimant continued to suffer severe problems with his fingers. Eventually he came under the treatment of Dr. Hixon because of the continuing problems with his fingers. The record contains extensive medical reports in regard to the treatment the claimant received from both Dr. Clark and Dr. Hixon for his finger problems, and we note that Dr. Hixon also performed surgery in attempts to alleviate problems the claimant was suffering in his fingers which was somewhat successful.

In order to resolve the issues relating to the claimant's impairment, we must first determine the weight to be accorded each of the doctors' impairment reports. In our opinion, Dr. Clark's evaluation of the claimant's wrist condition is more persuasive for the following reasons. Dr. Clark was the physician who primarily treated the claimant's wrist and performed corrective surgery upon it. We also note that the record contains an extensive series of reports prepared by a rehabilitation service regarding the claimant's condition which Dr. Clark was able to rely upon in assessing the extent of the claimant's permanent impairment. Based upon Dr. Clark's greater familiarity with the claimant's wrist injury, and related factors, we accord greater weight to Dr. Clark's assessment that the claimant sustained an impairment of 30% to the upper extremity because of his wrist injury.

In regard to the claimant's finger injuries, we are of the opinion that Dr. Hixon's report should be accorded greater weight. Dr. Hixon was the physician who began treating the claimant for his finger problems when one of the surgical pins inserted in his fingers broke. We also note that Dr. Hixon is a recognized hand specialist who was more familiar with the final results of the treatment to the claimant's fingers than was Dr. Clark. Dr. Hixson has opined that the claimant sustained a 34% impairment to his index finger, a 31% loss to his long finger, an 18% loss to his ring finger, and a 17% loss of the small finger.

Under the rating system used in the AMA Guides in the Evaluation of Permanent Impairment, Fourth Edition, the injuries to the various parts of the body are combined into a single impairment rating using various conversion tables. Using Dr. Hixon's evaluation of the injuries to the claimant's fingers and pursuant to Table 1 on page 18 of the AMA Guides, and Dr. Hixon's own December 14, 1995 letter, the claimant's finger injuries equate to an anatomical impairment rating of 17% to the hand. Reference to Table 2 on page 19 of the AMA Guides, indicates that a 17% impairment to the hand equates to a 15% impairment to the upper extremity. In order to determine the claimant's overall impairment rating, the 15% impairment to the claimant's upper extremity must be combined with the 30% impairment determined by Dr. Clark pursuant to the Combined Values Chart on page 322 of the AMA Guides. That chart indicates that a 30% impairment to the arm below the elbow when combined with a 15% impairment to the arm below the elbow, results in an impairment to that member of 41%. We, therefore, find that the claimant has established that, as a result of his compensable injury, he has sustained a permanent anatomical impairment in the amount of 41% to his arm below the elbow.

The next issue that must be decided is whether the claimant's attorney is entitled to a fee based upon the respondents' controversion of permanent disability benefits. Once again, this issue is clouded by confusion regarding proper evaluation of medical reports. In a clinic note dated August 16, 1994, Dr. Clark made the following statement:

"My feeling at this point is that he should be rated with a partial permanent impairment rating of 50% for each digit and 30% of the wrist which equates to 50% of the left upper extremity. This is based on the AMA Guide to the Evaluation of Partial Permanent Impairment, Fourth Edition."

In a letter dated November 4, 1994, the respondents' claim adjuster wrote a letter stating that Dr. Clark's opinion was being interpreted as entitling the claimant to receive benefits based upon a 30% impairment to his hand. Subsequently, the claimant retained an attorney who filed a claim for additional permanent disability benefits. After the claimant had filed a Prehearing Questionnaire and requested a hearing in this matter, but before a Prehearing Conference could be conducted, the respondents changed their position and admitted that the claimant had sustained a 50% impairment to the arm below the elbow. Controversion is a question of fact to be determined from the circumstances of each particular case. New Hampshire Insurance Company v. Logan, 13 Ark. App. 116, 680 S.W.2d 720 (1984). Also, the mere failure of an employer to pay compensation benefits does not amount to controversion in and of itself. Revere Copper and Brass, Inc. v. Talley, 7 Ark. App. 234, 647 S.W.2d 477 (1983). Also, the fact that the claimant retained an attorney to represent him also does not, by itself, provide a basis for controversion in and of itself. Hamrick v. Colson Coal, 271 Ark. 740, 610 S.W.2d 280 (1981). In the present claim, the respondents advised the claimant in writing that they would not pay any benefits in addition to a 30% impairment to the hand. They did not revise this position until after the claimant had retained the services of an attorney and the attorney had begun proceeding to litigate this issue. In our opinion, the respondents clearly controverted the claimant's entitlement to anatomical impairment benefits in excess of 30% to his hand. We further find that the respondents changed that position because of the efforts of the claimant's attorney.

We also note that in the course of the present litigation, the respondents have taken the position that the claimant is not entitled to any anatomical impairment benefits in excess of 17% to the arm below the elbow, and have requested a credit for any payments in excess of that amount. This has placed the respondents in the position of arguing that the claimant is not entitled to an attorney's fee since they had accepted an anatomical impairment of 50% to the arm, but at the same hearing contending that the respondents are entitled to a credit for any benefits already paid in excess of 17% to the arm below the elbow. On their face, these contentions are mutually exclusive.

After reviewing the entire record, we find that the claimant's attorney is entitled to a fee based on the claimant's entitlement to anatomical benefits in excess of 30% to the hand originally accepted by the respondents. Since we find that the greater weight of the credible evidence establishes that the claimant sustained an anatomical impairment rating of 41% to the arm below the elbow, we find that the claimant's attorney is entitled to an attorney's fee based upon the difference between a 30% impairment to the hand (47.4 weeks) and a 41% impairment to the arm below the elbow (64.78 weeks), or a fee on 17.38 weeks of benefits.

The remaining issue in this case is the respondents' entitlement to a credit based upon an overpayment of permanent disability benefits. The record indicates that the respondents previously paid to the claimant anatomical impairment benefits based upon a 50% impairment to the claimant's arm below the elbow. Since we have determined herein that the claimant is only entitled to permanent disability benefits based upon a 41% anatomical impairment to the arm, it appears that the respondents are entitled to a credit against any future benefits the claimant may be entitled to receive in an amount equal to their overpayment of permanent disability benefits.

For the reasons set out above, we find that the claimant has sustained a 41% anatomical impairment to his arm below the elbow as a result of his compensable injuries. We also find that the claimant's attorney is entitled to an attorney's fee based upon the controverted benefits indicated herein. Therefore, we find that the administrative law judge's decision in these regards must be affirmed as modified. In addition, the respondents are entitled to a credit against any future benefits to which the claimant may be entitled based upon their previous overpayment of permanent partial disability benefits.

The claimant's attorney is awarded an additional fee of $250.00 for prevailing in part on this appeal. One half of all attorney's fees awarded herein shall be paid by the respondent, with the balance to be paid by the claimant out of any future benefits he may receive.

IT IS SO ORDERED.

ELDON F. COFFMAN, Chairman MIKE WILSON, Commissioner

Commissioner Humphrey concurs.