Exxtra Help, Inc. and Hartford Insurance Company v. Geary Muldrew

ca01-932

NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

JUDGE JOSEPHINE LINKER HART

DIVISION III

EXXTRA HELP, INC. AND HARTFORD INSURANCE COMPANY

APPELLANTS

V.

GEARY MULDREW

APPELLEE

CA01-932

March 6, 2002

APPEAL FROM THE ARKANSAS WORKERS' COMPENSATION COMMISSION

[NO. E911994]

AFFIRMED

Appellants, Exxtra Help, Inc. (Exxtra Help) and Hartford Insurance Company, appeal from the decision of the Arkansas Workers' Compensation Commission (Commission) that granted Geary Muldrew, appellee, reasonable and necessary medical treatment and temporary total disability compensation. For reversal, appellants argue that substantial evidence did not exist to support the award of benefits by the Commission. We affirm.

Appellee, an employee of appellant, Exxtra Help, was assigned to work temporarily at the Carpet Cushion factory. After working half of a shift on September 15, and a full shift on September 16, appellant only worked half of a shift on September 17 before he left complaining of pain in his left shoulder which prevented him from continuing to work. Initially, appellants accepted the injury as compensable and provided medical treatment andtemporary total disability benefits through October 12, 1999. Thereafter, appellants controverted appellee's claim, asserting that there was a lack of objective medical findings to

establish a compensable injury and that the claimant's job was neither rapid nor repetitive, and therefore, appellee did not sustain a compensable injury.

In a split decision, the Commission affirmed the holding of the Administrative Law Judge (ALJ) that appellee had proven the existence of a compensable injury and was entitled to ongoing workers' compensation benefits through the end of appellee's healing period, a date yet to be determined. The appellants' two issues on appeal are whether there is substantial evidence to support the Commission's decision that appellee sustained a compensable, gradual onset injury, and whether the appellee is entitled to an open-ended award of medical and temporary total disability benefits.

After leaving work on September 17, appellee appropriately reported his injury to appellant's representative who arranged for him to see Dr. George M. Finley on September 20, 1999. Dr. Finley diagnosed that appellee suffered from a musculoskeletal strain. According to Dr. Finley's notes, although appellee complained of pain in his left shoulder, he had a full range of motion in his shoulder with some tenderness. He recommended "a period of rest and light-duty." One week later, appellee's light duty was extended, and on October 12, 1999, appellee was released to return to duty. Appellee reported to appellant, Exxtra Help, Dr. Finley's recommendations after his release to light duty and again upon being released to duty. Exxtra Help's representative, Lisa Marie Navarro, advised appellee that they did not have any available work and did not return appellee to either light duty orfull duty after his medical release.

Also, when appellee was seen by Dr. Finley on October 12, 1999, and released to return to work, the release was precipitated, according to appellee, when Dr. Finley learned that appellants refused to pay for physical therapy, which he had recommended for treatment of appellee's injury. However, the physician's notes regarding the October 12 visit do not reflect that any subjective complaints were registered by appellee nor do they reflect that physical therapy was recommended for appellee's condition.

In either event, appellee had no further medical treatment until December 6, 1999, when he returned to Dr. Finley, complaining of pain in his shoulder. Dr. Finley noted a mild degree of muscle tenderness; however, appellee's AC joint appeared normal, and he had full range of motion. Dr. Finley also opined that appellee could return to work but should not return to the same job that caused the injury. Appellee notified Exxtra Help of his work restrictions and again was not returned to work. Instead, appellant gave appellee a letter stating that he was terminated on September 17, 1999, because he was hurt during his probationary period. On January 13, 2000, after noting appellee's range of motion was virtually 100% and that there was nothing further that he could do, Dr. Finley recommended that appellee see an orthopedic surgeon, and referred him to Dr. David Collins.

On March 3, 2000, Dr. Collins performed an independent medical examination of appellee's left shoulder and upper extremity. Following that examination, Dr. Collins recommended an MRI/arthrogram and discussed additional imaging to include a bone scan.

The MRI was performed on May 22, 2000, and the findings of that test demonstratedmoderate to marked hypertrophic changes of the acromioclavicular joint and some mild tendonosis involving the supraspinatus. Further examination of the labrum revealed a very small tear at the base of the superior labrum posterior to the bicipital anchor. In Dr. Collins's opinion, the small tear "by description...does not seem to be a significant lesion." In order to clarify the findings of the MRI, Dr. Collins recommended a triple-phase bone scan.

The report of Dr. Alexander, the physician who performed the arthrogram noted the following without further comment: "increased activity in the left AC joint when compared to the right the delayed images most likely due to arthritis." On the same date, Dr. Collins placed appellee on a physical therapy program for his shoulder problem and limited his work activities to no lifting over fifteen pounds and no working with his arm above shoulder level. In their decision, the Commission noted that Dr. Finley, the treating physician, opined in December 1999 that the claimant "should not return to the same job that caused the injury." Further, the Commission found there were objective medical findings of the injury, citing the arthrogram performed in May 2000, which showed "a very small tear."

The Commission, discounting Dr. Collins's opinion that the labral tear was not a "significant lesion" stated, "the Commission need not base a decision on how the medical profession characterizes a given condition, but rather primarily on factors pertinent to workers' compensation law." Tyson Foods, Inc. v. Watkins, 31 Ark. App. 200, 792 S.W.2d 348 (1990). Thus, the Commission determined that the small tear constituted objective medical evidence despite the physician's opinion that the tear was not a significant lesion. However, the issue in Tyson concerned whether a condition was an injury or an occupationaldisease. The cited language was employed as a means of interpreting ambiguous statutory language, and it does not apply in the present case. We note, however, that "the Commission has the authority to accept or reject medical opinion and the authority to determine its medical soundness and probative force." Hill v. Baptist Med. Ctr., 74 Ark. App. 250, 253, 57 S.W.3d 735, 737 (2001).

Noting that appellant did not have a history of prior left shoulder problems, the Commission found there was a causal connection between the tear and appellee's work. The Commission determined that the preponderance of the evidence established the requirements set out in Ark. Code Ann. § 11-9-102(4). However, appellants vigorously argue that the medical evidence does not establish that the tear was the major cause of appellee's shoulder problem. In fact, they argue the medical evidence is inapposite, establishing that non-work related arthritic changes are the major cause of the problems associated with appellee's shoulder. As to major cause, the Commission simply stated: "[w]e find that the claimant's injury resulted from rapid repetitive motion, and that the compensable injury was the major cause of the claimant's disability and need for treatment."

··²

²··I. Standard of Review

When reviewing decisions from the Commission, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission's findings and affirm if substantial evidence supports the decision. See Swift-Eckrich, Inc. v. Brock, 63 Ark. App. 118, 975 S.W.2d 857 (1998); Georgia-Pacific Corp. v. Carter, 62 Ark. App. 162, 969 S.W.2d 677 (1998). Substantial evidence is that which a reasonable personmight accept as adequate to support a resolution. Wackenhut Corp. and St. Paul Fire & Marine Ins. Co. v. Jones, 73 Ark. App. 158, 40 S.W.3d 333 (2001).

Arkansas Code Annotated section 11-9-102(4)(F)(i) (Supp. 2001) states that "when an employee is determined to have a compensable injury, the employee is entitled to medical and temporary disability." ··²

_

²··The Commission has the duty of weighing all evidence, notably, medical evidence, and the resolution of such evidence has the force and effect of a jury verdict. Chamber Door Indus., Inc. v. Graham, 59 Ark. App. 224, 956 S.W.2d 196 (1997). "The Commission has the authority to accept or reject medical opinion and the authority to determine its medical soundness and probative force." Hill, supra. However, the Commission is not totally insulated from judicial review by this standard because this would render this court's function in these cases meaningless. Cooper v. Hiland Dairy, 69 Ark. App. 200, 11 S.W.3d 5 (2000). ··²

²··We will not reverse a decision of the Workers' Compensation Commission unless it is clear that fair-minded persons could not have reached the same conclusions if presented with the same facts. Dallas County Hosp. v. Daniels, 74 Ark. App. 177, 47 S.W.3d 283 (2001). ··²

_

²··

II. Burden of Proof for Gradual Onset Injury

The requirements necessary to establish the compensability of a gradual onset injury are set out in Arkansas Code Annotated section 11-9-102(4)(A)(ii) (Supp. 2001), which states in pertinent part that a gradual onset injury is:

[a]n injury causing internal or external physical harm to the body and arising out of and in the course of employment if it is not caused by a specific incident or is not identifiable by time and place of occurrence, if the injury is:

(a) [c]aused by rapid repetitive motion.

Further, Arkansas Code Annotated section 11-9-102(4)(E)(ii) (Supp. 2001) provides that:

[f]or injuries falling within the definition of compensable injury under subdivision (4)(A)(ii) of this section, the burden of proof shall be by a preponderance of the evidence, and the resultant condition is compensable only if the alleged compensable injury is the major cause of the disability or need for treatment.

(Emphasis added.) Moreover, a compensable injury must be established by medical evidence supported by objective findings. Ark. Code Ann. § 11-9-102(4)(D) (Supp. 2001). III. Rapid and Repetitive Motion

Our supreme court in Malone v. Texarkana Pub. Schs., 333 Ark. 343, 969 S.W.2d 644 (1998), explained that because our legislature had not established guidelines necessary to the determination of what constitutes "rapid and repetitive motion," that determination is made on a case-by-case basis. To determine rapid repetitive motion

[t]he standard is a two-pronged test: (1) the task must be repetitive, and (2) the repetitive motion must be rapid. As a threshold issue, the tasks must be repetitive, or the rapidity element is not reached. Arguably, even repetitive tasks and rapid work, standing alone, do not satisfy the definition. The repetitive tasks must be completed rapidly.

Id. at 350, 969 S.W.2d at 647-48.

Appellee, the only witness who testified regarding his work activities, explained that he moved 1,000 to 1,500 rolls of padding during each shift. According to his testimony, he was required to grab a piece of padding seven to eight feet long, weighing approximately 70 pounds, from a table, hoist it onto his shoulder, carry it to the back, and stack it. There were two machines that cut the padding as it came down the table. He testified that when themachine was running 7/16 inch padding, he would stand there and run it through; however, when the machine was running 5/8 inch padding he had to carry it one roll at a time to the back and stack it. When the machine ran 5/8 inch padding, he was also required to bring it back and place it on the table to be fed into the machine. Based on appellee's description of his job duties of repeatedly pulling, lifting, and carrying padding, coupled with the determination by the Commission to accept his testimony as credible, we cannot say that the Commission erred in determining that appellee's job required rapid repetitive motion.

IV. Major Cause

Appellants also argue that, even if appellee established that his job was one which required rapid repetitive motion, he cannot show that "the very small tear in the superior labrum" is the major cause of his disability or need for treatment. Major cause is a requirement to prove compensability for gradual onset injures, as appellee has claimed. In temporary benefits cases, we note that the major-cause requirement is unique to gradual onset injuries, and as noted in Estridge v. Waste Mgmt., 343 Ark. 276, 280-81, 33 S.W.3d 167, 170 (2000), it is unnecessary for the claimant to prove that the work, rather than the injury, was a major cause of the disability and need for treatment when the injury is identifiable by specific incident and time. "Major cause" means more than 50% of the cause of the disability or need for treatment and it is established by a preponderance of the evidence presented to the Commission. Ark. Code Ann. § 11-9-102(14)(A) (Supp. 2001); High Capacity Prods. v. Moore, 61 Ark. App. 1, 962 S.W.2d 831 (1998).

Appellants assert that appellee must establish the compensability of his claim withmedical evidence supported by objective findings, and they argue that the medical evidence is inapposite, establishing that non-work related arthritic changes are the major cause of the problems associated with appellee's shoulder. Contrary to appellants' assertion, there is no requirement that appellee offer medical evidence to establish major cause. High Capacity Prods., supra. In High Capacity Products, appellant asserted that an expert, meaning a physician, must state what the major cause was. However, this court held that the legislature has not limited the acceptable evidence that could be considered in determining major cause to a physician's ascertainment of the major cause. The Commission found that "the claimant's injury resulted from rapid repetitive motion, and that the compensable injury was the major cause of the claimant's disability and need for treatment." We note that the Commission found that appellee did not have a history of shoulder problems prior to his job. Thus, we cannot say that the Commission erred inasmuch as there is substantial evidence to support its findings that the small tear was the major cause of appellee's need for treatment.

Under our standard of review, we cannot say the Commission erred in determining that reasonable minds could find that substantial evidence existed to prove that the small tear was the major cause of appellee's need for treatment. Thus, we affirm the Commission's conclusion that the compensable injury was the major cause.

V. Temporary Total Disability

Appellants next argue that appellee should not have been awarded temporary total disability benefits for medical benefits beyond October 12, 1999. Appellants assert that appellee was released to return to work on October 12, 1999, by his treating physician, andthus was not entitled to temporary total disability benefits as defined by the statutes.

Arkansas Code Annotated section 11-9-102(8) (Supp. 2001) defines disability as follows: "incapacity because of compensable injury to earn, in the same or any other employment, the wages which the employee was receiving at the time of the compensable injury." "Temporary total disability represents that interval of time within the healing period in which a claimant suffers a complete inability to earn wages." Dallas County Hosp., supra at 183, 47 S.W.3d at 287 (2001) (citing Georgia-Pacific Corp. v. Carter, 62 Ark. App. 162, 969 S.W.2d 677 (1998)). Arkansas Code Annotated section 11-9-102(12) (Supp. 2001) defines healing period as "that period for healing of an injury resulting from an accident." This court has "interpreted this period as including the time until the employee is as far restored as the permanent character of the injury will permit." Dallas County Hosp., supra. The healing period is over once it is determined that the underlying condition will not improve with further treatment. See id. An ascertainment of whether a claimant's healing period has ended is a factual finding made by the Commission. See id.

On September 20, 1999, Dr. Finley placed appellee on light duty, however, appellants explained that lack of available work prohibited them from returning appellee to work. On October 12, 1999, Dr. Finley noted that appellee had a full range of motion and released him to return to work. However, appellee testified that he spoke with a representative from appellant Exxtra Help, and she informed him after his light duty release in September and full duty release in October that there was no work available. Although appellee was released to return to work with no restrictions from October to December, he testified thathe did not try to find another job during this period, and he "just didn't feel physically...capable." As previously noted, appellee had no further medical treatment until December 6, 1999, when he returned complaining of "a little pain." Dr. Collins examined appellee on December 6, 1999, and released him to return to work but not to the same job as caused the injury. Likewise, in June 2000, Dr. Collins restricted appellee's work activities, noting that he could work with his arm below shoulder level and could lift no greater than fifteen pounds.

In its opinion, the Commission held the following:

We recognize that Dr. Finley released the claimant to return to work on October 12, 1999. The claimant promptly reported for work with the respondents, but was informed that there was no work available for him. In fact, Ms. Navarro expressly testified at hearing that the respondents terminated the claimant after he hurt his shoulder. Although the treating physician had prescribed physical therapy to treat the claimant's compensable injury, none was provided by the respondents. By December, 1999, the claimant was unable to raise his left shoulder. The claimant was referred to an orthopedic specialist, who imposed new work restrictions in May, 2000. The Full Commission therefore finds that the claimant proved by a preponderance of the evidence that he was entitled to temporary total disability compensation from September 20, 1999 through the end of the claimant's healing period, a date yet to be determined.

Based on our standard of review, we cannot say that the Commission erred in granting appellee temporary total disability benefits from September 20, 1999, through the end of his healing period, a date yet to be determined.

Affirmed.

Jennings and Roaf, JJ., agree.