Conley Transport v. Judy Vallor

ca02-526

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN F. STROUD, JR., CHIEF JUDGE

DIVISION IV

CONLEY TRANSPORT

APPELLANT

V.

JUDY VALLOR

APPELLEE

CA 02-526

December 23, 2002

APPEAL FROM THE WORKERS'

COMPENSATION COMMISSION

[E905588]

REMANDED

This is a workers' compensation case in which appellee, Judy Vallor, suffered compensable injuries while employed as a truck driver by appellant, Conley Transport. The ALJ found that appellee was entitled to a four-percent permanent-partial-impairment rating for her left upper extremity. The Commission affirmed the ALJ's decision and adopted her findings of fact. In this one-brief appeal, appellant contends that the Commission's finding was not supported by substantial evidence and must therefore be reversed. We remand to the Commission for clarification of its decision.

In Hayes v. Wal-Mart Stores, 71 Ark. App. 207, 209-10, 29 S.W.3d 751, 753 (2000), we discussed the difference between active range-of-motion tests and passive range-of-motion tests in evaluating physical impairment:

As can be seen, Helms contains dicta to the effect that active range-of-motion tests come under the voluntary control of the patient, and therefore do not constitute objective findings under Ark. Code Ann. § 11-9-102(16)(A)(i). However, the testimony in the case at bar (which the Commission expressly found to be credible) shows that the test performed in the present case was not one in which the limb was actively moved by the subject, but instead was a test in which the limb was moved passively by the examiner.

. . . .

Doctor Meredith stated in a letter that range-of-motion studies of the type he performed can be "objectively and consistently measured by qualified physicians with reasonable accuracy and reproducibility."

The Commission was not required to accept this testimony as credible. However, given that the Commission did expressly find the testimony of appellant and Dr. Meredith to be credible, the conclusion is inescapable that the tests performed on appellant were passive range-of-motion evaluations performed by the examiner and not under the voluntary control of appellant. Under these circumstances, we hold that the Commission's opinion displays no rational basis for its finding that the range-of-motion tests performed on appellant did not constitute objective findings under Ark. Code Ann. § 11-9-102(16)(A)(i).

Here, the Commission framed the issue before it as follows: "At issue here is whether the Administrative Law Judge used objective findings, i.e., the passive range of motion measurements, to support the decision or whether the decision was based on `subjective' medical findings substantiated by active range of motion measurements." The Commission majority concluded that appellee's four-percent permanent-partial-impairment rating was based on "valid objective medical evidence." Appellant's primary contention in this appeal is that the evidence does not support the Commission's finding. Appellant contends that the only thing we know for sure is that appellee's impairment rating was based solely upon range-of-motion measurements and that to conclude that the rating was calculated usingpassive, rather than active, range-of-motion criteria requires guesswork by the Commission.

The Commission's decision in this case is at best confusing. Moreover, it affirms the ALJ's decision and adopts the ALJ's findings of fact, making necessary an examination of the ALJ's decision, which is also confusing. The confusion stems from the fact that appellee suffered a variety of compensable injuries stemming from two separate work incidents. She suffered compensable hand and wrist injuries from a fall that occurred in December 1997, which necessitated carpal-tunnel release surgeries. She subsequently suffered elbow and foot injuries from a fall that she sustained on May 3, 1999. With respect to her foot injury, the ALJ concluded that she was still undergoing active treatment and that no impairment rating would be assessed at the time of the order. Thus, it is clear that the ALJ postponed a decision on the foot injury and that it is not part of this appeal. What is unclear, however, is whether the 1997 hand and wrist injuries were somehow included in the four-percent impairment rating for appellee's upper left extremity.

In a pre-hearing order filed February 26, 2001, the ALJ set out the parties' stipulations, including the following: "The claimant sustained a compensable injury to her hands on December 21, 1997, and compensable injuries to her left foot and left elbow on May 3, 1999." In addition, the ALJ set out the issues that the parties had agreed to litigate and offered the following explanation:

In regard to the foregoing issues the claimant contends that she is entitled to payment of a 4 percent permanent partial impairment rating based upon Dr. Axelson's January 17, 2000 rating. A 32 percent rating to the right hand and 20percent rating to the left hand based on the results of an impairment award given by Dr. Akkad on October 8, 1999, or alternatively, a 3 percent rating to each hand as a result of an impairment awarded by Dr. Kelly in June 2000. ....

In regard to the foregoing issues the respondents contend that the three impairment ratings in question (3 percent to the right hand; 3 percent to the left hand; and 4 percent to the left arm) are not supported by or based upon objective findings of permanency and that they are, therefore, invalid under our current Act.

(Emphasis added.) Prior to the hearing, therefore, it seems clear that three impairment ratings were at issue, involving both hands and the left arm. Adding to the confusion is the fact that the appellee testified at the hearing about her December 1997 accident, which resulted in the hand and wrist surgeries performed by Drs. Akkad and Kelly, and that the ALJ's opinion also sets out that testimony.

Following the hearing, the ALJ's opinion was filed on July 3, 2001. It lists the parties' stipulations, including the following: "The claimant sustained compensable injuries to her left foot and left elbow on May 3, 1999" (emphasis added), and "[t]he claimant's claim #E900999 has been settled and a joint petition order has been entered in that claim." The ALJ makes no findings or conclusions that specifically address the hand and wrist injuries, even though they were included in the issues that the parties had agreed to litigate. Moreover, after recapping Dr. Nils Axelsen's reports and letters, which relate only to appellee's elbow injury, the ALJ concludes:

After a review of this entire record, I find that the claimant has proven by a preponderance of the evidence that she is entitled to a 4 percent impairment rating to her left upper extremity. Dr. Axelsen had performed passive range of motion tests on this claimant and made this 4 percent assessment of impairment. . . . Therefore, the respondents should pay to this claimant 4 percent impairment for her left elbow.

(Emphasis added.) Thus, it seems that the ALJ's opinion is limited to appellee's left elbow and that the hand and wrist injuries were what was settled in claim #E900999.

A problem that we have with the ALJ's opinion, however, is that it states, "On January 17, 2000, Dr. Axelsen assesses the claimant with a 4 percent left upper extremity impairment based on her passive range of motion." (Emphasis added.) Yet an examination of Dr. Axelsen's January 17, 2000 letter demonstrates that it is not at all clear whether the impairment rating was based upon passive or active range-of-motion measurements:

Ms. Judy Vallor had an impairment rating in Physical Therapy. This was done based on range of motion alone and range of motion and grip strength. There is no reason to believe that from a radial head fracture she should not get her original grip strength back so her impairment will be based on range of motion alone. Her total upper extremity impairment is 4%. Her impairment of the whole person is 2%.

(Emphasis added.) In addition, the quoted letter provides that appellee had an impairment rating "in Physical Therapy." Appellee was specifically asked at the hearing what she did in physical therapy when they assigned the impairment rating, and her response was more descriptive of active range-of-motion tests than passive range-of-motion tests.

Moreover, Dr. Axelsen's most recent progress note preceding the January 17, 2000 report was dated December 6, 1999, and it provides:

Judy's elbow is doing fine. Passively, I can get her into neutral extension, full flexion, full supination, and full pronation. Actively, she still seems to be having a little bit of trouble trying to get full pronation and supination. Apparently she is going to have surgery on her foot by Dr. Crotty. I will see her back on a p.r.n. basis.

(Emphasis added.) This December report follows one dated October 27, 1999, in which Dr. Axelsen notes that appellee "has a - 5 degrees of passive extension, a - 10 degrees of active extension...."

The Commission's opinion explains its adoption of the ALJ's findings and refutes the dissenting commissioner's opinion by offering the following explanation:

The medical records indicate the claimant was subjected to both passive and active range of motion testing. However, the Dissent relies on a medical report by Dr. Nils Axelsen dated December 6, 1999, on which to confirm a finding that the impairment rating Dr. Axelsen assigned was based on active range of motion tests:

Judy's elbow is doing fine. Passively, I can get her to neutral extension, full flexion, full supination, and full pronation. Actively, she still seems to be having a little bit of trouble trying to get her full pronation and supination.

Dr. Axelsen later assigned claimant a 4% impairment rating for her upper extremity, but failed to address whether he relied on active or passive range of motion tests in this conclusion.

Reading the two reports together, the Dissent concludes that the 4% impairment rating Dr. Axelsen assigned to claimant is based on subjective tests and therefore is contrary to statute. However, this argument ignores other medical reports prepared by Dr. Axelsen indicating that claimant was subjected to passive range of motion tests as well. On October 27, 1999, Dr. Axelsen, opined:

Judy's elbow still hurts. Her motion has gotten better. She has a - 5 degrees of passive extension, a - 10 degrees of active extension. She has full flexation. She has full pronation. She has only about 15 degrees of supination. The elbow is not swollen.

Also, on June 2, 2000, Dr. James Kelly, opined:

The patient underwent MMI recently on the left and right hands with Sharon Meissner. Her calculations were a bit inconsistent; however, I feel that it is reasonable that she have a 3% deficit of the left and right hands secondary to her carpal tunnel releases and blunt trauma to the wrist bilaterally. This will be added to her chart as a permanent record and made available to her Worker's Compensation carrier on an as-needed basis.

When read together, those reports can support a conclusion that claimant's assigned impairment rating is based on valid objective medical evidence. Based on medical evidence that claimant was tested both actively and passively, it is not speculation to award claimant benefits.

(Emphasis added.)

Our problem with the Commission's reasoning is that the June 2, 2000 report from Dr. Kelly is related only to the hand and wrist injuries, not the elbow. If it is correct that the hand and wrist injuries were not considered in assessing the four-percent permanent impairment rating, then the Commission's reliance upon Dr. Kelly's June 2, 2000 report in order to bolster Dr. Axelsen's impairment rating seems totally inapplicable to the injury at issue. It is not clear to us if the ALJ and the Commission considered the 1997 hand injuries as supporting Dr. Axelsen's four-percent "total upper extremity impairment"rating, and, if so, to what extent. We remand to the Commission for clarification of its reasoning in affirming the ALJ's decision.

Remanded for clarification.

Neal and Baker, JJ., agree.