BEFORE THE ARKANSAS WORKERS COMPENSATION COMMISSION CLAIM NO. G BRENT JACKSON, EMPLOYEE BAPTIST HEALTH, SELF-INSURED EMPLOYER

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1 BEFORE THE ARKANSAS WORKERS COMPENSATION COMMISSION CLAIM NO. G BRENT JACKSON, EMPLOYEE BAPTIST HEALTH, SELF-INSURED EMPLOYER CLAIMS ADMINISTRATIVE SERVICES, TPA CLAIMANT RESPONDENT RESPONDENT OPINION FILED JULY 21, 2015 Hearing conducted before ADMINISTRATIVE LAW JUDGE MARK CHURCHWELL, in Little Rock, Pulaski County, Arkansas. The claimant was represented by HONORABLE GARY DAVIS, Attorney at Law, Little Rock, Arkansas. The respondent was represented by HONORABLE MELISSA WOOD, Attorney at Law, Little Rock, Arkansas. STATEMENT OF THE CASE A hearing was held in the above-styled claim on May 19, 2015, in Little Rock, Arkansas. A Prehearing Order was entered in this case on April 7, The following stipulations were submitted by the parties and are hereby accepted: 1. The Employer-Employee relationship existed on December 26, 2013, when Claimant sustained a compensable injury to his right lower extremity. 2. The claimant s average weekly wage of $ entitles him to TTD/PPD benefit rates in the respective amounts of $304/ The respondents controvert the claimant s claim for permanent anatomical impairment in excess of the 10% lower extremity rating provided by Dr. Jason Stewart. By agreement of the parties, the issues to be litigated and resolved at the present time were limited to the following: Claimant:

2 2 1. Extent of permanent impairment and controversion. 2. Temporary total disability from date last paid to January 7, Attorney s fees Respondent: 1. According to the Form AR-C, the claimant is asserting all available benefits under the Arkansas Workers Compensation Act. However, in his Response to Prehearing Questionnaire, Claimant s counsel asserts the extent of permanent impairment is the only issue to be addressed. The record consists of the May 19, 2015, hearing transcript and the exhibits contained therein. FINDINGS OF FACT AND CONCLUSIONS OF LAW 1. The Employer-Employee relationship existed on December 26, 2013, when Claimant sustained a compensable injury to his right lower extremity. 2. The claimant s average weekly wage of $ entitles him to TTD/PPD benefit rates in the respective amounts of $304/ The respondents controvert the claimant s claim for permanent anatomical impairment in excess of the 10% lower extremity rating provided by Dr. Jason Stewart. 4. The claimant has failed to establish by the preponderance of the evidence that he is entitled to any period of temporary disability benefits after December 3, The claimant s permanent anatomical impairment is 21% rated to the lower extremity. 6. The claimant s attorney s controverted attorney s fee shall be on the 11% additional impairment rated to the lower extremity awarded herein in excess of the 10% impairment to the lower extremity accepted by the respondents.

3 3 DISCUSSION Mr. Jackson injured his right leg on December 26, 2013, when he fell in a freezer at work. (T ) Diagnostic testing revealed a comminuted proximal tibial fracture which required open reduction and internal fixation with a plate and screws. (C. Exh. 1 p. 10) Unfortunately, Mr. Jackson later developed an infection in the area, and Dr. Christopher Stewart removed the hardware on June 19, (C. Exh. 1 p. 22) After further testing, Dr. Stewart on September 14, 2014, referred Mr. Jackson to Dr. Allan Smith to be evaluated for a possible knee arthroscopy. Dr. Stewart indicated in that same report that once Dr. Smith was through with Mr. Jackson (or if Dr. Smith did not operate), then Mr. Jackson will be approaching maximum medical improvement. (C. Exh. 1 p. 36) Dr. Smith evaluated Mr. Jackson on September 17, 2014, and Dr. Smith determined that Mr. Jackson was not a surgical candidate. (C. Exh. 1 p. 37) On December 3, 2014, Dr. Stewart examined Mr. Jackson. Dr. Stewart indicated that Mr. Jackson is at maximum medical improvement. Dr. Stewart indicated that he would assign Mr. Jackson an impairment rating after Mr. Jackson underwent a functional capacity evaluation. (C. Exh. 1 p. 39) Mr. Jackson underwent the functional capacity evaluation on December 18, 2014, and Dr. Stewart issued a report assigning

4 4 Mr. Jackson a permanent anatomical impairment rating on January 7, (R. Exh. 1 p. 3; C. Exh. 1 p. 40) A dispute exists at to when Mr. Jackson s healing period ended for purposes of paying temporary disability compensation, and a dispute exists regarding Mr. Jackson s permanent anatomical impairment. In the present claim, the respondents contend that Mr. Jackson reached the end of his healing period on December 3, 2014, when Dr. Stewart indicated that Mr. Jackson had reached maximum medical improvement. With regard to determining the appropriate permanent impairment, the respondents contend that Mr. Jackson has sustained a 10% impairment to the lower extremity as calculated by Dr. Jason Stewart on April 13, The claimant contends that he was within his healing period and entitled to temporary disability compensation until Dr. Christopher Stewart calculated his impairment on January 7, The claimant contends that he is entitled to the rating of 22% to the lower extremity and the rating of 24% to the whole body calculated by Dr. Christopher Stewart on January 7, Issue 1: End Of Healing Period The claimant s work related injury at issue is a leg injury, therefore the claimant s injury is considered a scheduled injury. For a scheduled injury, a claimant is entitled to temporary total disability benefits until the

5 5 healing period ends or until the claimant returns to work, whichever occurs first. See Ark. Code Ann (a); Wheeler Construction Co. v. Armstrong, 73 Ark. App. 146, 41 S.W.3d 822 (2002). The term healing period is defined by statute as that period for healing of an injury resulting from an accident. Ark. Code Ann (12). The Arkansas Courts have held that the healing period continues until the injured employee is as far restored as the permanent character of the injury will permit. The healing period ends once the underlying condition has become stable and when nothing further in the way of medical treatment will improve the permanent character of the injury. Mad Butcher, Inc. v. Parker, 4 Ark. App. 124, 628 S.W.2d 582 (1982). The persistence of pain is not sufficient, by itself, to extend the healing period provided that the underlying condition has stabilized. Id. In the present case, the claimant has not undergone any identifiable treatment after December 3, 2014, which appeared intended to improve the permanent character of his injury, and no such treatment has been proposed. For his part, Dr. Christopher Stewart indicated on December 3, 2014, that Mr. Jackson was at maximum medical improvement, and Dr. Stewart s opinion in this regard appears to this examiner consistent with Dr. Stewart s course of treatment and referrals. Because I find credible the opinion about

6 6 maximum medical improvement contained in Dr. Stewart s report dated December 3, 2014, I find that Mr. Jackson s healing period ended on December 3, Issue 2: Permanent Anatomical Impairment The Arkansas Court of Appeals thoroughly discussed the requirements necessary to establish an entitlement to benefits for a permanent anatomical impairment in Excelsior Hotel v. Squires, 83 Ark. App. 26, 115 S.W.3d 823 (2003). First, benefits for permanent impairment must be based on an impairment rating using the AMA Guides to the Evaluation of Permanent Impairment (4 th ed. 1993). The Commission may review the Guides even if the Guides are not in the record, and the Commission may determine its own impairment rating under the Guides, rather than simply assessing the validity of impairment ratings assigned by doctors. Avaya v. Bryant, 82 Ark. App. 273, 105 S.W.3d 811 (2003). Second, benefits for permanent anatomical impairment shall be awarded only if the claimant s compensable injury is the major cause of the impairment at issue. Ark. Code Ann (4)(F)(ii)(a). The provisions of Ark. Code Ann (4)(F)(ii)(b) do not apply in determining a claim for permanent anatomical impairment. Michael v. Keep & Teach, Inc., 87 Ark. App. 48, 185 S.W.3d 158 (2004). Major cause means more than 50% of the cause. Ark. Code Ann (14).

7 7 Third, a determination of the existence and extent of physical impairment must be supported by objective and measurable physical findings. Ark. Code Ann (c)(1)(B). Objective findings are defined as those findings which cannot come under the voluntary control of the patient. Ark. Code Ann (16)(A)(i). When determining the permanent physical impairment, neither a doctor nor the Commission may consider complaints of pain. For purposes of assigning impairment ratings to the spine, straight-leg-raising tests and range-of-motion tests do not qualify as objective findings. Ark. Code Ann (16)(A)(ii). If the allegation of permanent physical impairment is supported by objective and measurable findings, then the Commission must also consider the credibility of relevant subjective evidence as well in assessing permanent impairment. Singleton v. City of Pine Bluff, 97 Ark. App. 59, 244 S.W.3d 709 (2006). Rating Pursuant To The Guides In the present case, Mr. Jackson has various documented post-fall abnormalities related to his fall and leg injury including: the healed tibial plateau fracture, traumatic arthritis in the knee joint, decreased muscle mass (quadracep atrophy), decreased muscle strength, decreased range-of-motion of the knee joint, and his limp and use of a cane to ambulate. Lower extremity impairments are calculated using the analysis in section 3.2 The Lower

8 8 Extremity of the AMA Guides to the Evaluation of Permanent Impairment (4 th ed. 1993). The several sections discussed below could be used under appropriate circumstances. A. Gait Derangement (section 3.2b) On December 3, 2014, the date of Mr. Jackson s maximum medical improvement, Dr. Christopher Stewart indicated that Mr. Jackson should continue to be weight bearing as tolerated to the right lower extremity with a cane. Dr. Stewart also opined that I think he probably needs the cane at all times. (C. Exh. 1 p. 39) However, Mr. Jackson performed the tests of his functional capacity evaluation without using the cane, and Dr. Christopher Stewart subsequently rated Mr. Jackson s gait impairment as mild under the criteria of Table 36 on page 3/76. Under subsection c. of that table (part-time use of a cane with other criteria), Dr. Christopher Stewart assigned a 15% impairment to the whole body. (C. Exh. 1 p. 41). Although Table 36 has no rating conversion to the lower extremity, I note that the lower extremity ratings are converted to whole body ratings by multiplying by 0.4. See 3.2 p. 3/75. Therefore, converting backwards, Mr. Jackson s lower extremity rating for a 15% whole body rating is 15% / 0.4 = 37.5% rated to the lower extremity if Dr. Christopher Stewart s assignment of that rating was appropriate under the circumstances.

9 9 B. Specific Ratings i. Muscle Atrophy (section 3.2c) Although Mr. Jackson has some degree of documented quadracep muscle atrophy noted in medical reports, no physician or therapist has placed actual circumference measurements into the medical record from which to determine impairment due to atrophy using Table 37 on page 3/77. ii. Manual Muscle Testing (section 3.2d) In September of 2014, Dr. Christopher Stewart recorded, in part, 4/5 motor with tibialis anterior, EHL, FHL and gastrocsoleus. (C. Exh. Exh. 1 p. 35) However, no physician has attempted to assign Mr. Jackson a rating under section 3.2d (Manual Muscle Testing). Dr. Stewart s documented motor values in September were also recorded approximately three months before Mr. Jackson was deemed at maximum medical improvement. In addition, I note that the comment to the example on page 3/84 indicates that, by design, a diagnosis-related estimate related to fractures in Table 64 (discussed below) includes the expected muscle weakness or atrophy incurred with the fracture. Since Table 64 includes a diagnosis-related estimate for a tibial plateau fracture, a rating estimate based on manual muscle testing would appear unnecessary and inappropriate even if timely and adequate muscle mass testing data were available for use withtables 38 and 39 on page 3/77.

10 10 iii. Diagnosis-based estimate for plateau fracture (section 3.2i) Applying the criteria in Table 64 on page 3/85 for diagnosis-based estimates, Dr. Christopher Stewart assigned Mr. Jackson a 2% impairment to the whole body, equivalent to a 5% impairment to the lower extremity for his healed nondisplaced tibial plateau fracture. iv. Range of motion (section 3.2e) Dr. Christopher Stewart and Dr. Jason Stewart each determined a 4% impairment to the whole body equivalent to a 10% impairment to the lower extremity based on knee flexion of 98 degrees under the range of motion criteria (less than 110 degrees but greater than 80 degrees) of Table 41 on page 3/78. v. Arthritis (section 3.2g) Dr. Christopher Stewart determined a 3% impairment to the whole person, equivalent to a 7% impairment to the lower extremity, using the criteria for a 3 millimeter cartilage interval in the knee using Table 62 on page 3/83. Dr. Christopher Stewart acknowledged that Mr. Jackson also had arthritis in the other knee, but opined that the plateau fracture in the left knee exacerbated the arthritis in the left knee. (C. Exh. 1 p. 41). After performing these various determinations, Dr. Christopher Stewart added together the calculated impairments for gait derangement plus tibial plateau

11 11 fracture plus range of motion plus arthritis. (C. Exh. 1 p. 41) For his part, Dr. Jason Stewart rejected outright a rating for gait derangement since more specific methods were available, but then concluded that the remaining ratings are all looking at the same body part and should not be combined. Dr. Jason Stewart therefore assigned only a 10% impairment based on range of motion testing. (R. Exh. 1 p ) Applying the examples and information contained in the Guides, I find that the most appropriate way to calculate Mr. Jackson s lower extremity impairment under Section 3.2 is to (1) determine the fracture s impairment by combining the ratings for the diagnosis-based fracture impairment estimate with the impairment for knee range of motion, and then (2) combining the overall fracture rating with the arthritis rating under the combined values chart on page 322: 5% lower extremity + 10% lower extremity + 7% lower extremity = 21% combined impairment to the lower extremity. Dr. Jason Stewart s conclusion that these three impairments are all looking at the same body part and should not be combined appears inconsistent to this examiner with the text in the second paragraph of page 3/84 indicating that a femur fracture rating is determined by adding together a diagnosis-based rating for the fracture plus the range of motion impairment. Dr. Jason Stewart s conclusion that ratings for the tibial fracture and for the knee

12 12 arthritis are looking at the same thing appears inconsistent to this examiner with the example on page 3/83 which indicates that a patient experiencing both a tibial fracture and knee arthritis is entitled to a rating for the knee arthritis combined with an impairment for the fracture. Furthermore, I note that according to the first paragraph of text on page 3/82, most patients with arthritis are impaired more by pain and weakness and maintain their functional ranges of motion. Since this text indicates that arthritis is unlikely to normally contribute to decreased range of motion, there appears to this examiner to exist little likelihood that the arthritis impairment assigned in section 3.2g in fact overlaps with either a rating for knee range of motion in section 3.2e or to overlap with the diagnosisbased rating for the tibial plateau fracture in section 3.2i. To the extent that Dr. Christopher Stewart indicated that his rating for gait derangement should be added to other ratings calculated in section 3.2, his analysis appears inconsistent with the language in the second paragraph of section 3.2b on page 3/75, which states that ratings for gait derangement under Table 36 should stand alone and not be combined with those given in any of parts of section 3.2, and with the language in the same paragraph stating that the evaluator should use the more specific

13 13 methods in other parts of section 3.2 (rather than Table 36) whenever possible. Dr. Jason Stewart, in rejecting assignment of an impairment rating for gait derangement correctly identifies the language in section 3.2b which states that whenever possible, the evaluator should determine impairment with the more specific methods in section 3.2 instead of using gait derangement. However, I note that this statement in section 3.2b does not appear entirely consistent to this examiner with the language in the second paragraph of section 3.2i on page 3/84 indicating a patient with a femoral fracture with non-union who uses a crutch should be rated for use of the crutch or for the nonunion plus the range of motion, whichever is greater. (Emphasis added) In any event, the Full Commission in Terrell Dean v. City of Little Rock, Full Workers Compensation Commission, Opinion filed January 20, 2010 (F602881), concluded: The Full Commission finds that, according to the language of Table 36, the claimant is not entitled to a rating for the antalgic gait. The Guides are clear that Table 36 is applicable only when a rating under a more specific section of the Guides cannot be made and that a rating under Table 36 is not made in addition to those more specific ratings. The claimant has specific ratings addressing his injuries, obviating the need for a gait derangement rating under Table 36. The issue of the basis of the rating is moot, as no rating is available to the claimant for gait derangement in these circumstances, and therefore, the Full Commission reverses the Administrative Law Judge's award of a rating and his finding that the rating was supported by objective findings.

14 14 In light of the ambiguities between section 3.2b and section 3.2i about the use of Table 36, and the Commission s admonition in Dean, I accord no weight to Dr. Christopher Stewart s assignment of a rating for gait derangement since more specific methods are available under other parts of Section 3.2 for estimating impairment. Finally, to the extent that the claimant contends that he is entitled to benefits for both the lower extremity values and the whole person values listed for his assigned impairments in the relevant tables of Section 3.2, this examiner notes that every example calculation in Section 3.2 calculates impairment for either the lower extremity or the whole person. No example calculation indicates that any type of lower extremity injury entitles a patient to benefits for both the rating allocated to the lower extremity and the rating allocated to the whole person in the same table. The claimant has cited no legal authority or language from the Guides in support of his contention, and to the extent that Dr. Stewart s January 14, 2015, might arguably be interpreted to suggest that Mr. Jackson is entitled to benefits for both the whole person rating and the lower extremity assigned from the various tables of section 3.2, that interpretation of Dr. Stewart s letter would likewise not be supported by any legal authority or language from the Guides. Objective And Measurable Finding Supporting Impairment

15 15 The objective findings in the record that support the existence and extent of permanent knee arthritis and of a healed tibial plateau fracture with some screws remaining include the x-rays taken and interpreted by Dr. Christopher Stewart as recently as December 3, (C. Exh. 1 p ) Mr. Jackson s right lower extremity impairment is also supported by the muscle atrophy in the quads and the gastroc musculature of Mr. Jackson right leg, is supported by the by the presence of edema along both the medial and lateral joint line of the right knee pretesting, and is supported by post-testing increased edema on the anterior joint line of his right knee documented during his functional capacity evaluation on December 18, (R. Exh. 1 p. 9) Because I conclude that the allegation of permanent physical impairment is supported by objective and measurable findings, the Commission must also consider the credibility of relevant subjective evidence as well in assessing permanent impairment. Here, Mr. Jackson put forth a reliable effort during his functional capacity evaluation with 51 of 51 consistency measures within expected limits. (R. Exh. 1 p. 3) In addition the 98 degree range of knee flexion documented during the FCE test correlates well with the 95 degrees of flexion documented by Dr. Christopher Jackson on December 3, (R. Exh. 1 p. 1, 8) I find under these circumstances that the Commission should consider and apply the subjective active range of motion

16 16 (flexion) data generated during the FCE for purposes of assigning Mr. Jackson an appropriate impairment rating under Table 41. Major Cause In the present case, there are no medical records in evidence indicating that Mr. Jackson was receiving active medical treatment for his leg or knee before his fall at work on December 26, There is also no medical evidence indicating that Mr. Jackson suffered from any underlying preexisting medical condition in his right leg which rendered him at greater risk of sustaining a comminuted fracture of the tibial plateau if he were to fall. With regard to Mr. Jackson s right knee arthritis, Dr. Christopher Stewart has indicated that Mr. Jackson has some degree of arthritis in his left knee, and may have had some preexisting right knee arthritis, but that the fracture exacerbated the right knee arthritis. (C. Exh. 1 p. 41) Dr. Christopher Stewart s relevant assessment in September and December of 2014 was posttraumatic arthritis. (C. Exh. 1 p. 37, 37) No physician has indicated that Mr. Jackson experiences sufficiently collapsed joint space in the left knee to cause documented impairment under Table 62 on page 3/83 (i.e., a cartilage interval of 3 millimeters or less). The Arkansas Courts have interpreted that the major cause requirement is satisfied if a compensable injury

17 17 aggravates an asymptomatic preexisting condition such that the condition becomes symptomatic and requires treatment. Wright v. St. Vincent Doctors Hosp., 2012 Ark. App. 153, 390 S.W.3d 779; Leach v. Cooper Tire & Rubber Co., 2011 Ark. App. 571, S.W.3d. I find under the circumstances presented in the present case that Mr. Jackson has established by a preponderance of the evidence that the tibial plateau fracture that he sustained on December 26, 2014, was the major cause of all of the impairment awarded herein. Again there is no evidence that Mr. Jackson was seeking medical treatment for either leg before December 26, There is no evidence that Mr. Jackson had only 3 millimeters of joint space in the right knee before December 26, 2014, and there is no evidence that Mr. Jackson had only 3 millimeters of joint space in the left knee either before or after December 26, There was no reference to any edema in Mr. Jackson s left knee during the FCE. I find credible under these circumstances Dr. Christopher Stewart s assessment that Mr. Jackson has impairment from posttraumatic arthritis as well as a healed tibial plateau fracture. The posttraumatic arthritis and the tibial plateau fracture are the major cause, and in fact the sole cause, of the permanent impairment awarded herein.

18 18 AWARD The respondents are directed to pay benefits in accordance with the findings set forth herein; however, the parties All accrued sums shall be paid in a lump sum without discount and this award shall earn interest at the legal rate until paid, pursuant to Ark. Code Ann , and Couch v. First State Bank of Newport, 49 Ark. App. 102, 898 S.W.2d 57 (1995), and Burlington Industries, et al v. Pickett, 64 Ark. App 67, 983 S.W.2d 126 (1998); reversed on other grounds 336 Ark. 515, 988 S.W.2d 3 (1999). The claimant s attorney is entitled to a 25% attorney s fee on the indemnity benefits awarded herein, one-half of which is to be paid by the claimant and one-half to be paid by the respondents in accordance with Ark. Code Ann and Death & Permanent Total Disability Trust Fund v. Brewer, 76 Ark. App. 348, 65 S.W.3d 463 (2002). The respondents are directed to pay the court reporter s fees and expenses within thirty (30) days of billing. IT IS SO ORDERED. MARK CHURCHWELL Administrative Law Judge