Opinion
CLAIM NO. F701782
OPINION FILED MARCH 4, 2009
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE GARY DAVIS, Attorney at Law, Little Rock, Arkansas.
Respondents No. 1 represented by the HONORABLE JIMMY C. CLINE, Attorney at Law, Little Rock, Arkansas.
Respondent No. 2 represented by the HONORABLE JUDY W. RUDD, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Reversed in part, affirmed in part.
OPINION AND ORDER
The claimant appeals an administrative law judge's opinion filed April 10, 2008. The administrative law judge found that the claimant failed to prove that he suffered a compensable injury to his left and right shoulders. After reviewing the entire record de novo, the Full Commission finds that the claimant proved he sustained a compensable injury to his left shoulder. We find that the claimant proved he was entitled to reasonably necessary medical treatment and temporary total disability benefits.
I. HISTORY
James Norman Word, age 63, testified that he began working for Potlatch in 1978. Mr. Word testified in a deposition:
Q. You contend that you injured your right and left shoulder on August 11, 2005; is that correct?
A. Yes, I did. . . . It was at the rear of the kilns, the deal that opens and closes the door. Opened both doors. The same one opens both doors. All right. It runs in a track. One end of the track was open at the back, was out of the track. I reached up to push it back over in the track. I had ahold of it with hands. It fell out snatching me to the ground. There was three employees with me at the time of the accident. And my foreman walked in within a minute after it happened. . . .
Q. You said that there were three co-workers around?
A. Yes, there was.
Q. And who were they?
A. Jim Grice, Ricky Howard, and Jimmy Dale Barnett.
Ricky Howard testified that he was present at the time of the accident and saw what happened. Mr. Howard testified that the claimant "had both hands on the hanger. And what his purpose was was to pull back and try to help push that thing up. . . . it just came off, and when it did, it just snatched down just like this (demonstrating). . . . It kind of doubled him over (demonstrating). It's a pretty good load that jerks down on you. It wasn't just an easy come down, it's a snatch on your whole body, and mostly on your shoulders and elbows and arms and things." Mr. Howard testified that the claimant "was kind of grimacing in pain, you know, trying to work his shoulders and arms and things like that."
Jimmy Barnett testified that he witnessed the accident: "I watched it just drop down where he was holding the handles, it just dropped down on his shoulders, you know. . . . Well, he said, `Man, that hurt my shoulders,' you know, at that time." Jim Grice testified, "We took the forklift with the boom attachment extender on it and we picked this deal up. . . . Norman was flagging me, he was standing in front of me, and I think I let it down just a shade too far maybe and it come out or it didn't go on the track right. And Norman flagged me to stop, and I stopped. . . . But anyway, it fell, either, kind of falling down, and he grabbed it." Mr. Grice testified on cross-examination, "I'm watching the forklift and I'm watching him. I just remember when the door closure come loose that it threw him. . . . I seen the man get hurt, that's all I know." Although the claimant initially contended that the accident occurred on August 11, 2005, a Potlatch Investigation Report for Accident/Incident was actually prepared on July 29, 2005. The Investigation Report indicated that the claimant injured his left shoulder while performing work duties, i.e., "repairing #2 kiln door." The Incident Event was described in writing, "Norman shook the handle, the carrier fell off track jerking Norman's shoulder." The record indicates that Jerry Forrest and the claimant prepared the Investigation Report. The Investigation Report was signed by the respondent-employer's Unit Manager, by the Manufacturing Superintendent, and by the Safety Coordinator, Raymond Culp.
Jerry Forrest testified that he was the claimant's supervisor. The respondents' attorney cross-examined Mr. Forrest:
Q. This report that Mr. Davis referenced, how did you get the information to fill out the report?
A. From Norman.
Q. And was everything in that report, did that come from Norman?
A. Yes.
Q. Was he with you when you filled out that incident report?
A. Yes.
Q. And did he mention to you at that time that he was having right shoulder problems?
A. I don't recall. It would have been — I think I would have written it down. . .
Q. If Mr. Word would have told you that the incident also involved his right shoulder, would you have put that in the incident report?
A. Yes. . . .
The administrative law judge questioned Jerry Forrest at hearing:
Q. You filled out an accident report that I have a copy of, it's Respondents' Exhibit Number 1, it's marked 3-1, and it indicates that the Claimant reported an injury to his left shoulder?
A. Correct.
Q. And that was on 7-29-05?
A. Correct.
Q. Okay. Is there a similar report relating to the right shoulder?
A. No, ma'am.
Q. Would you — once you became aware that he had an injury to his right shoulder as well, is there a company policy relating to filling out a new report or amending this report?
A. Well, if there was another injury, yes. I don't know on the second part of your question.
Q. I guess, were you required, as the supervisor, to report that right shoulder injury?
A. If it had been brought up as an injury, yes.
Q. Okay. I thought you testified earlier that you were aware that the Claimant was seeking medical attention for his right shoulder due to the work-related injury.
A. He told me he was going to the doctor for his right shoulder. . . .
Q. At that time did you understand or believe it to be related to the incident that had happened in July of `05?
A. No, I didn't understand it that way. . . .
Q. Then is it your testimony that as far as the right shoulder surgery, the right shoulder problem, that you were never told that it was work-related?
A. No.
Q. Is that correct?
A. Correct.
The claimant testified at deposition, "I thought my left one was the worst. . . . But both of them was hurting. . . . I didn't know my right one was hurt. It started — over the year, it started hurting. . . . I felt pain in both shoulders. Both shoulders." The claimant testified on cross-examination at the hearing that he had never seen the Investigation Report. The claimant testified, "if this is the report, it's wrong. It should have said shoulders, not shoulder. It should have said both shoulders, if this is the one it's supposed to be."
The claimant testified that he did not begin missing work until approximately November 2, 2005. Dr. Jason G. Stewart evaluated the claimant on November 23, 2005:
This is a 60 year old gentleman with four months of left shoulder pain. He was catching a door that was falling and it jerked his shoulder. He has trouble laying on the shoulder now. He can't lift the arm over his head without severe pain.
He does have occasional right shoulder pain. . . .
IMAGING: Three views of the left shoulder, ordered and interpreted by me, show significant joint arthritis and downsloping of the acromion.
Dr. Stewart assessed "Left shoulder pain" and recommended MRI of the left shoulder to rule out a rotator cuff tear. Dr. Stewart performed operative procedures on December 13, 2005: "1. Left open rotator cuff repair. 2. Left open distal clavicle resection. 3. Left open acromioplasty." The pre-and post-operative diagnoses were "1. Left rotator cuff tear. 2. Acromioclavicular arthritis and subacromial impingement syndrome."
On December 15, 2005, the claimant began filling out Weekly Indemnity Claim Forms for disability beginning November 23, 2005. The claimant indicated on the Forms that the disability was not due to an accident and was not work-related. The claimant also indicated that a worker's compensation claim had not been filed. Dr. Stewart filled out an Attending Physician's Statement on the first Claim Form and wrote that the nature of the injury was a Rotator Cuff Tear left shoulder. Dr. Stewart indicated that the disability was not work related.
Dr. Stewart noted on March 15, 2006, "Mr. Word is here in follow up three months status post rotator cuff repair of the left shoulder. He is doing well." Dr. Stewart's impression was "Status post rotator cuff repair of the left shoulder." Dr. Stewart recommended "1) Return to work, full duty with no restrictions. 2) Follow up in three months." Dr. Stewart signed a form indicating that the claimant could return to full duty on March 20, 2006.
The claimant testified at hearing that he returned to work on or about March 17, 2006. Dr. Stewart noted on October 25, 2006, "Mr. Word is here in follow up of right shoulder pain. He has had 10 months ago, a left rotator cuff tear. He is doing excellent on that side, but the right side is having similar symptoms." Dr. Stewart assessed "Left shoulder pain" and recommended MRI of the cervical spine and right shoulder.
The claimant followed up with Dr. Stewart on November 22, 2006: "Mr. Word is here with MRI results of the right shoulder. . . . MRI showed a massive rotator cuff tear with gleneral humeral arthritic change, AC joint arthritis, and impingement." Dr. Stewart assessed "Rotator cuff tear. . . . I went over his options with him. He has the surgical options of hemi arthroplasty for cuff tear or debridement procedure with DCR and acromioplasty. He has chosen the second option."
The claimant's testimony indicated that he did not work for the respondents after December 23, 2006. Dr. Stewart performed operative procedures on December 27, 2006: "Right shoulder hemiarthroplasty for rotator cuff arthropathy." The pre-and post-operative diagnoses were "Right shoulder cuff arthropathy."
On December 29, 2006, Dr. Stewart indicated on a Claim Form that the claimant's right shoulder surgery was not due to a work-related illness or injury. Beginning January 22, 2007, the claimant began indicating on some of his Weekly Indemnity Claim Forms that his disability was due to a work-related illness or injury. Dr. Stewart reported on February 14, 2007: "Mr. Word is here in follow up six weeks after a right Copeland hemiarthroplasty with extended articular surface. He is doing very well. The pain relief has been complete, with a 0/10 pain level. The left shoulder, which was operated on in 2005, is stable now and he is inquiring about an impairment rating. . . . IMAGING: Two views of the shoulder, ordered and interpreted by me, show a well aligned Copeland arthroplasty in good position." Dr. Stewart's impression was "Status post right Copeland hemiarthroplasty." Dr. Stewart's recommendations included "1) Based on loss of range of motion in the upper extremity, he has 80% upper extremity impairment rating and 5% whole person impairment rating. 2) 6 more weeks of PT for the right shoulder."
The claimant testified that he retired from employment in June 2007.
A pre-hearing order was filed on November 6, 2007. The claimant contended that he sustained compensable injuries to both shoulders on August 11, 2005. The claimant contended that he was entitled to temporary total disability benefits, medical benefits, and attorney's fees. The respondents contended that the claimant "did not sustain compensable injuries to either shoulder on August 11, 2005. Respondents contend that the claimant did not sustain a specific incident injury to his right shoulder that arose out of and in the course and scope of employment and that the alleged injury was not the major cause of the disability or need for treatment. Respondents further contend that claimant has sought and obtained short-term disability benefits for which he completed paperwork evidencing that his condition was not work related. Respondents contend that they are entitled to an offset for any short-term disability benefits the claimant has received. Respondents further contend they are not responsible for any benefits for the right shoulder claim until the report of injury was filed pursuant to Ark. Code Ann. § 11-9-701."
The parties agreed to litigate the following issues:
1. Compensability of claimant's alleged August 11, 2005 injury.
2. Claimant's entitlement to temporary total disability benefits.
3. Claimant's entitlement to medical benefits.
4. Controversion and attorney's fees.
5. Claimant reserves all other issues.
A hearing was held on January 11, 2008. At that time, the claimant contended that the alleged specific incident occurred on July 29, 2005 or August 11, 2005. The claimant contended that he was entitled to temporary total disability compensation beginning November 2, 2005 through February 14, 2007.
Raymond Culp, the respondent-employer's safety coordinator, testified for the respondents:
Q. Mr. Culp, you've heard the testimony regarding the incident report that Mr. Forrest filled out?
A. Yes.
Q. Did you review that incident report? Do you have the exhibit right in front of you?
A. Yes.
Q. Are those your initials?
A. Yes, signature. . . .
Q. Did you ever ask Mr. Word if he needed to go to the doctor?
A. Yes, I did. . . . This happened on Friday, the 29th. . . . I went and checked on Mr. Word that Monday morning at the machine shop and asked him how he was doing and what had happened. He said, you know, he jerked his shoulder, left shoulder. And I asked him if he'd been taking any ibuprofen or anything like that, and he said yes. And I asked him if he thought he needed medical attention, and he said no. . . .
Q. You did not learn about the left shoulder surgery or the right shoulder surgery until after he sought medical treatment and the surgeries were both performed, is that correct?
A. Well, I was made aware of the left shoulder surgery. In the office we have a list of people that go off on short-term disability and I saw Mr. Word's name put on there. I asked the secretary that handles these A and H forms why he was off, and she said he was off on shoulder surgery. . . .
The administrative law judge filed an opinion on April 10, 2008. The administrative law judge found, "3. The claimant has failed to prove by a preponderance of the evidence that he suffered a compensable injury to his left and right shoulders and upper extremities on July or August of 2005." The administrative law judge therefore denied the claim. The claimant appeals to the Full Commission.
II. ADJUDICATION
A. Compensability
Ark. Code Ann. § 11-9-102(4)(A) (Repl. 2002) defines compensable injury:
(i) An accidental injury causing internal or external physical harm to the body . . . arising out of and in the course of employment and which requires medical services or results in disability or death. An injury is "accidental" only if it is caused by a specific incident and is identifiable by time and place of occurrence[.]
A compensable injury must be established by medical evidence supported by objective findings. Ark. Code Ann. § 11-9-102(4)(D). "Objective findings" are those findings which cannot come under the voluntary control of the patient. Ark. Code Ann. § 11-9-102(16).
The employee's burden of proof shall be a preponderance of the evidence. Ark. Code Ann. § 11-9-102(4)(E)(i). Preponderance of the evidence means the evidence having greater weight or convincing force. Smith v. Magnet Cove Barium Corp., 212 Ark. 491, 206 S.W.2d 442 (1947).
In the present matter, the Full Commission finds that the claimant proved he sustained a compensable injury to his left shoulder. The claimant's testimony indicated that a heavy industrial door slipped from a track and fell on or about July 29, 2005, "snatching" the claimant to the ground. Other employees witnessed the accident. A Potlatch Investigation Report, prepared with the claimant's assistance on July 29, 2005, indicated that the claimant injured his left shoulder as a result of the accident. Dr. Stewart began treating the claimant on November 23, 2005: "This is a 60 year old gentleman with four months of left shoulder pain. He was catching a door that was falling and it jerked his shoulder." Dr. Stewart assessed "Left shoulder pain." Dr. Stewart performed surgery for a left open rotator cuff repair and other procedures involving the claimant's left shoulder on December 13, 2005.
The Full Commission finds that the claimant proved he sustained an accidental injury causing physical harm to his left shoulder on or about July 29, 2005. The accidental injury arose out of and in the course of employment, required medical services, and resulted in disability. The injury was caused by a specific incident and was identifiable by time and place of occurrence on or about July 29, 2005. The claimant established a compensable injury to his left shoulder by medical evidence supported by objective findings, including the left rotator cuff tear reported by Dr. Stewart. The left rotator cuff tear was causally related to the July 29, 2005 accidental injury.
The claimant did not prove that he sustained a compensable injury to his right shoulder. The claimant testified that he felt pain in both shoulders when the accident occurred on or about July 29, 2005. The July 29, 2005 Investigation Report, however, indicated that the claimant injured his left shoulder, not both shoulders. Dr. Stewart began treating the claimant for left shoulder pain on November 23, 2005. We recognize Dr. Stewart's notation on November 23, 2005, "He does have occasional right shoulder pain." Nevertheless, Dr. Stewart clearly stated that the claimant had "jerked" his left shoulder, not the right shoulder. We also note the credible testimony of Raymond Culp, who testified that the claimant jerked his left shoulder. The record in the present matter does not demonstrate that the claimant sustained a "bilateral shoulder injury" on or about July 29, 2005.
B. Notice of injury
Ark. Code Ann. § 11-9-701(Repl. 2002) provides:
(a)(1) Unless an injury either renders the employee physically or mentally unable to do so, or is made known to the employer immediately after it occurs, the employee shall report the injury to the employer on a form prescribed or approved by the Workers' Compensation Commission and to a person or at a place specified by the employer, and the employer shall not be responsible for disability, medical, or other benefits prior to receipt of the employee's report of injury. . . .
(b)(1) Failure to give the notice shall not bar any claim:
(A) If the employer had knowledge of the injury or death;
(B) If the employee had no knowledge that the condition or disease arose out of and in the course of the employment; or
(C) If the commission excuses the failure on the grounds that for some satisfactory reason the notice could not be given.
The Full Commission has found that the present claimant sustained a compensable injury to his left shoulder on or about July 29, 2005. The record demonstrates that the injury was made known to the employer immediately after it occurred. The Potlatch Investigation Report for Accident/Incident, prepared on July 29, 2005, was signed by the respondent-employer's Unit Manager, by the Manufacturing Superintendent, and by the Safety Coordinator. The evidence therefore shows that the employer had knowledge of the left shoulder injury no later than July 29, 2005. The claimant proved he was entitled to benefits for his compensable left shoulder injury no later than July 29, 2005.
C. Medical Treatment
The employer shall promptly provide for an injured employee such medical treatment as may be reasonably necessary in connection with the injury received by the employee. Ark. Code Ann. § 11-9-508(a) (Repl. 2002). The claimant must prove by a preponderance of the evidence that he is entitled to additional medical treatment. Wal-Mart Stores, Inc. v. Brown, 82 Ark. App. 600, 120 S.W.3d 153 (2003). What constitutes reasonably necessary medical treatment is a question of fact for the Commission. Dalton v. Allen Eng'g Co., 66 Ark. App. 201, 989 S.W.2d 543 (1999). In the present matter, the claimant proved that he sustained a compensable injury to his left shoulder. The claimant proved that all of the medical treatment of record for his left shoulder, including surgery by Dr. Stewart, was reasonably necessary in connection with the compensable left shoulder injury. The claimant did not prove that any of the treatment provided for his non-compensable right shoulder condition, including surgery, was reasonably necessary. The respondents are not liable for any medical treatment provided for the claimant's right shoulder condition.
D. Temporary Disability
Temporary total disability is that period within the healing period in which the employee suffers a total incapacity to earn wages. Ark. State Hwy. Dept. v. Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981). The instant claimant sustained a compensable left shoulder injury on or about July 29, 2005. The claimant testified that he began missing work as a result of his compensable injury on approximately November 2, 2005. Dr. Stewart performed compensable left shoulder surgery on December 13, 2005. The claimant testified that he returned to work on or about March 17, 2006. Dr. Stewart released the claimant to full duty on March 20, 2006. The claimant therefore proved that he remained within his healing period and was totally incapacitated to earn wages from November 2, 2005 until March 17, 2006.
Based on our de novo review of the entire record, the Full Commission finds that the claimant proved he sustained a compensable left shoulder injury. The claimant did not prove that he sustained a compensable right shoulder injury. We therefore reverse the administrative law judge in part and affirm in part. The compensable left shoulder injury was made known to the respondent-employer no later than July 29, 2005. The claimant proved that the medical treatment of record for his left shoulder, including surgery, was reasonably necessary pursuant to Ark. Code Ann. § 11-9-508(a) (Repl. 2002). The claimant proved that he was entitled to temporary total disability benefits from November 2, 2005 until March 17, 2006. The respondents are entitled to the appropriate offset in accordance with Ark. Code Ann. § 11-9-411(Repl. 2002).
The claimant's attorney is entitled to fees for legal services pursuant to Ark. Code Ann. § 11-9-715(Repl. 2002). For prevailing in part on appeal to the Full Commission, the claimant's attorney is entitled to an additional fee of five hundred dollars ($500), pursuant to Ark. Code Ann. § 11-9-715(b) (Repl. 2002).
IT IS SO ORDERED.
________________________________ A. WATSON BELL, Chairman
________________________________ PHILIP A. HOOD, Commissioner
CONCURRING AND DISSENTING OPINION
I respectfully concur, in part, and dissent, in part, from the majority's opinion. Specifically, I concur in the majority's finding that the claimant failed to prove by a preponderance of the evidence that he sustained a compensable injury to his right shoulder. However, I must respectfully dissent from the majority's finding that the claimant proved by a preponderance of the evidence that he sustained a compensable injury to his left shoulder. In my opinion, the claimant has failed to meet his burden of proof.
The evidence demonstrates that there are significant inconsistencies in the testimony of the witnesses to the events that occurred on July 29, 2005, when the claimant sustained this alleged work-related injury. The claimant stated that he was attempting to put the kiln back into the track when the kiln doors fell three to five feet to the ground jerking both of his shoulders. However, Mr. Jim Grice indicated that the door did not fall to the ground at all and did not jerk the claimant's shoulders. Rather, he stated that the door was already on the ground and as it began to lean on the claimant, the claimant threw his arms up to catch the door which caused the claimant to be thrown backwards. Mr. Jimmy Dale Barnett indicated that "the door fell approximately two to six inches before the bottom of the door hit the ground." Mr. Ricky Howard indicated that the claimant was standing on a ladder while working on the door when the alleged injuries occurred. It is clear that none of the statements of any of the eyewitnesses are consistent but yet contradict each other and not one version mirrors that of the claimant.
Further, there is evidence that the claimant continued to work and perform his normal job duties between the time of the alleged incident and his deer hunting vacation which began the second week of November 2005. The claimant never missed any work during that same period of time and he repeatedly indicated that he did not need to see a doctor. Although the claimant testified the he experienced difficulties in performing his job duties, he failed to notify the respondent employer, including Mr. Forrest and Mr. Culp of that.
Furthermore, the claimant sought medical treatment on four separate occasions between the date of the alleged incident in July of 2005, and the date he went deer hunting in November 2005. Never once did he inform his doctors about the alleged incident or complain about shoulder pain or difficulties in performing his job duties. Moreover, the claimant was able to set up and climb a 23-pound deer stand in November of 2005. The claimant testified in his deposition that he attempted to go hunting but he could not shoot his gun because he was in too much pain. However, when confronted with a letter from the Arkansas Game and Fish Commission which indicated that the claimant shot and tagged a deer on November 12, 2005, the claimant admitted at the hearing that he did shoot his gun and killed a deer. It is noteworthy that the claimant is left-handed and shoots a gun off of his left shoulder.
The medical evidence demonstrates that the claimant filed all of the medical in this claim for his left shoulder with his private insurance and, in fact, filed for short-term disability benefits. The claimant's treating physician, Dr. Jason Stewart, was asked to complete a form for disability and was asked "Is the disability due to work-related illness or injury?" Dr. Stewart indicated "No." The claimant and his treating physician both verified on the disability form that the claimant's left shoulder problems were not due to a work-related injury. Therefore, after considering all of the evidence, I cannot find that the claimant proved by a preponderance of the evidence that he sustained a compensable injury to his left shoulder. Therefore, for all the reasons set forth herein, I must respectfully dissent from the majority opinion.
_______________________________ KAREN H. McKINNEY, Commissioner