Bettie Golden, d/b/a MS Carriers, and the Arkansas Property & Casualty Guaranty Fund v. Bettie Golden, Employee

ca03-753

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION IV

BETTIE GOLDEN, d/b/a MS CARRIERS, AND THE ARKANSAS PROPERTY & CASUALTY GUARANTY FUND,

APPELLANTS

v.

BETTIE GOLDEN, EMPLOYEE,

APPELLEE

CA03-753

FEBRUARY 4, 2004

APPEAL FROM THE ARKANSAS WORKERS' COMPENSATION COMMISSION,

NO. F106480

AFFIRMED

Sam Bird, Judge

Appellee Bettie Golden, a truck driver and an independent owner/operator, suffered a gradual-onset injury to her right shoulder that rendered her unable to continue driving on July 29, 2000, when she was on an out-of-state road trip. The respondents accepted the injury as compensable, and they paid a ten-percent whole-body impairment that she was assigned at the end of her healing period that ended on April 26, 2001. On March 1, 2002, a hearing was held before an administrative law judge to determine appellee's entitlement to 1) additional permanent impairment and/or permanent disability benefits, and 2) additional medical treatment.

The law judge found that appellee had proven that she had sustained wage-loss in the amount of forty percent to the body as a whole, entitling her to an overall permanent partial disability award of fifty percent; and that she had proven entitlement to "continued reasonably necessary medical treatment." The Workers' Compensation Commission affirmed the decision of the law judge. The respondents now appeal the decision of the Commission. They contend that the Commission's decision to award the forty-percent loss in wage-earning capacity is not

supported by substantial evidence, and that appellee failed to prove that she is entitled to additional medical treatment. We hold that substantial evidence supports the Commission's findings that appellee is entitled to additional wage loss and medical treatment; therefore, we affirm the decision of the Commission.

The evidence introduced in this case included medical records and the testimony of appellee, who appeared pro se before the administrative law judge. Appellee testified that she was a fifty-three-year-old high school graduate who had completed one year of college and had two degrees from truck-driving schools, and that she had driven a truck for the ten years preceding the hearing. She said that she previously had worked on an assembly line in a factory, had cleaned houses, had cared for the elderly, had picked cotton and beans, and had worked as a waitress and short-order cook. She said that her gradual-onset injury had begun sometime before July 2000, but that the pain had not become severe enough to see a doctor before July 24 of that year. She stated that she did not remember what she had been doing to cause the problem, but that the injury was a result of her work.

Appellee further testified that the diagnosis of a torn rotator cuff was not made until after she had seen a series of doctors. She said that the nagging pain she was experiencing at the time of the March 2002 hearing, a pain from her right shoulder to her wrist, was the same as it had been in July 2000. She said that raising her arm was painful, that she used it only if necessary, and that she had not used it except during therapy since July 2000. She testified that she no longer performed housework in her home. She testified that Dr. William Morrison in Mississippi had not thought that surgery would help, that she had undergone physical therapy through Dr. Thomas Sturdavant, that at the time of the hearing Dr. Sturdavant had said that nothing more could be done, and that she would be willing to submit to surgery. She testified that respondents would not allow her to return to Dr. Sturdavant. She also contended that the injury affected parts of her body other than her arm and shoulder, but she admitted that she had no medical reports to support that contention. Physical therapy records were introduced as part of the medical evidence. The treatment notes of October 10 and 19, 2000, included the following assessments:

Patient continues with excessive facial grimacing and posturing with the arm at the side; however, with rope and pulley and overhead rowing she is able to perform these with little to no discomfort. . . .

Patient continues with overreaction with excessive facial grimacing and extreme guarding and unusual posturing of the right upper extremity.

Dr. Thomas Sturdavant referred appellee to Dr. Mark J. Morrow for a neurological consultation. Dr. Morrow reported on October 31, 2000, that appellee's behavior regarding her upper right extremity was "inconsistent and unusual." Dr. Morrow also stated that appellee was "very adverse to passive or active movement of the limb, yet often moved it briskly on her own" when she was unaware that he was observing.

On January 23, 2001, appellee underwent a functional capacities evaluation ordered by Dr. Sturdavant. The evaluation noted inappropriate pain behavior in the form of "frequent facial grimacing, excessive verbalization of pain, and self-limiting secondary to pain or fear of pain despite good mechanics and relative ease of lift or movement." Also noted were inconsistent performance and poor effort. It was recommended that although appellee no longer had the ability to meet the demands of truck driving, she could perform sedentary work with limited overhead lifting, continuation of home exercise or walking program, and "pain management/behavioral health to address symptom magnification and self-limiting." On January 26, 2001, Dr. Sturdavant recommended a continuation of physical therapy.

An MRI of appellee's right shoulder was finally performed on February 14, 2002. It revealed a full-thickness tear of the rotator cuff. On February 27, 2001, Dr. Sturdavant referred appellee to Dr. William A. Morrison for evaluation and treatment of the rotator-cuff tear. On March 1, 2001, Dr. Morrison assessed the tear as an apparent work-related injury. He also stated that it was difficult to find such a relationship because appellee "doesn't know how she did this," and he characterized her history of shoulder pain as very obtuse and difficult to ascertain. He concluded that appellee did not wish to proceed with a surgical approach and therefore was not a candidate for surgery.

On April 24, 2001, Dr. Sturdavant pronounced that appellee had reached maximum medical improvement. He returned her to work at light duty with permanent restrictions of limited overhead activity, no lifting greater than ten pounds, and no repetitive use of the right upper extremity.

Dr. Ken Rosenzweig conducted an independent medical evaluation of appellee on April 2, 2002. He noted that he was relying on reports for information because neither X-rays nor MRIs were available for his perusal, and because no "films or diagnostics" were sent in advance or brought in on the day of the examination. Dr. Rosenzweig wrote that his shoulder exam of appellee was invalid because of resistance to attempts for strength testing as well as active and passive range of motion, but he noted that such testings were not accepted modalities in current Arkansas Workers' Compensation law. He stated that appellee most likely was at maximum medical improvement with the current level of treatment but that she might have an improved outcome with modification of her psychological disorder and reconsideration of surgical management.

Dr. Rosenzweig assigned appellee a ten-percent upper-extremity impairment under the Guide to the Evaluation of Permanent Impairment, and he opined that the rotator-cuff tear was "most likely occupation-related." His report concluded:

It appears that conservative care has been correct and there has been no recorded treatment over the past year. But, due to the absence of management, it is not knownat this time, due to her somatoform1 behavior during examination, what she truly can and cannot do. She does have documented cuff pathology that has most likely propagated over the past year, rendering her shoulder very difficult to use, and she has allowed herself to "freeze up", and has remained in the sling for the duration. . . .

(Footnote added.)

Finally, the independent medical evaluation included Dr. Rosenzweig's responses to written interrogatories. He noted that a claim of insidious onset was typical for rotator cuff pathology due to impingement syndrome, and that "it has been somewhat difficult to see through this due to her personality and behavior disorder and her somatoform reaction." He stated his agreement that appellee could not safely drive a truck, and he opined that left-handed sedentary work was an option. His answer to the last interrogatory included this statement:

It appears that she had been driving for 10 years, and most likely, at the time of her claim, is when her impingement propagated to the full thickness cuff tear, and it was not initially diagnosed, but only found after the fact, after months of conservative care. It is possible that her outcome could have been different, had she had a timely diagnosis and intervention, with introduction to orthopaedic care sooner.

Having set forth the evidence before the Commission that is pertinent to the points on appeal, we now discuss the merits of those points.

Loss in Wage-Earning Capacity

The wage-loss factor is the extent to which a compensable injury has affected the claimant's ability to earn a livelihood. Bradley v. Alumax, 50 Ark. App. 13, 899 S.W.2d 850 (1995). Arkansas Code Annotated section 11-9-522 (b)(1) (Repl. 2002) specifies:

In considering claims for permanent partial disability benefits in excess of the employee's percentage of permanent physical impairment, the Workers' Compensation Commission may take into account, in addition to the percentage of permanent physical impairment, such factors as the employee's age, education, work experience, and other matters reasonably expected to affect his or her future earning capacity.

A claimant's lack of interest and negative attitude about entering the job market impedes the Commission's assessment of a claimant's wage loss and is a factor that may be considered. City of Fayetteville v. Guess, 10 Ark. App. 313, 663 S.W.2d 946 (1984). Similarly, although a claimant's failure to participate in rehabilitation services does not bar his claim, the failure may impede a full assessment of his wage-earning loss by the Commission. Ellison v. Therma-Tru, 71 Ark. App. 410, 30 S.W.3d 769 (2000).

In the present case, the Commission's adjudication of wage loss included the following discussion:

Ms. Golden is nearly age 55 with only a high school diploma, and her work history consists primarily of unskilled manual labor. The claimant became a truck driver in about 1991. The respondents stipulated that the claimant sustained a compensable injury to her right shoulder. The claimant has a documented rotator cuff tear, and Dr. Sturdavant opined that the claimant could not return to full work activity. The claimant, who the Commission finds was a credible witness, testified that she had almost no functional use of her right arm. The record corroborates the claimant's testimony that she was unable to resume her truck-driving occupation, which she had performed for nearly ten years before the compensable injury. . . .

Dr. Rosenzweig, like the other examining physicians, did not think the claimant could resume her former duties of driving a truck. Based on the claimant's age, education, and prior work experience, the Full Commission affirms the Administrative Law Judge's opinion that the claimant proved she sustained wage-loss disability in the amount of 40%. (Emphasis added.)

Respondents allege that all of appellee's medical reports provide that her pain was exaggerated and that she demonstrated inappropriate pain behavior. Respondents point to notations that she overreacted to pain tests and that she gave minimal effort. They complain that medical providers were unable to render a proper diagnosis because of her inadequate participation and cooperation with them. They also note the law judge's reference to a pre-hearing conference where appellee, pointing out that vocational rehabilitation was never offered to her, stated that she wanted to pursue disability benefits rather than explore such rehabilitation.

The issue on appeal is not whether this court might have reached a different result from the Commission: we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the findings of the Commission and affirm they are is supported by substantial evidence. Cooper Tire & Rubber Co. v. Angell, 75 Ark. App. 325, 58 S.W.3d 396 (2001). Substantial evidence is that which a reasonable mind might accept as adequate to support a conclusion. Id. If reasonable minds could reach the result found by the Commission, we must affirm the decision. Id. In making our review, we recognize that it is the function of the Commission to determine credibility of witnesses and the weight to be given their testimony. Id. It is within the Commission's province to reconcile conflicting evidence and to determine the true facts when there are contradictions in the evidence. Ellison v. Therma-Tru, supra.

The respondents' arguments go to the weight and credibility of the evidence, matters that are within the purview of the Commission. We hold that the independent medical evaluation by Dr. Rosenzweig, Dr. Sturdavant's finding of maximum medical improvement and his release to light-duty work with restrictions, and the testimony of appellee, whom the Commission found to be a credible witness, constitute substantial evidence to support the finding of the Commission that appellee sustained a forty-percent wage-loss disability in addition to the ten-percent impairment rating. Therefore, we affirm the first point on appeal.

Additional Medical Treatment

Arkansas Code Annotated section 11-9-508(a) (Supp. 2003) mandates that an employer promptly provide for an injured employee such medical services as may be reasonably necessary in connection with the injury. Respondents argue that appellee has demonstrated an unwillingness to effectively participate in any medical treatment. They complain that appellee underwent Dr. Sturdavant's conservative treatment plan, that she initially refused surgery, that she ceased physical therapy treatment, and that she did not seek medical treatment for an entire year before the independent medical evaluation. They repeat arguments made under their first point on appeal, referring to appellee's "exaggerated pain response to all treating physicians." Although acknowledging Dr. Rosenzweig's opinion that surgery might be helpful, respondents point to his statement that no treatment was necessary at the time of the evaluation based on "an invalid examination and her pain behaviors." They rely upon the opinion of Dr. Morrison, "who had the benefit of the imaging reports" not provided to Dr. Rosenzweig, that appellee was not a candidate for surgery.

It is the Commission's responsibility to use its experience and expertise to translate medical testimony into findings of fact, and it is within the Commission's province to accept or reject medical opinion and to determine its medical soundness and probative value. Epoxyn Products, Inc. v. Padgett, ___ Ark. App. ___ , ___ S.W.3d ___ (December 10, 2003). Furthermore, it is the duty of the Commission to weigh the medical evidence and, if the evidence is in conflict, the resolution of such evidence is a question of fact for the Commission. Id.

Here, the Commission noted that Dr. Sturdavant recommended continuation of physical therapy in January 2001, and that an MRI subsequently showed the right rotator-cuff tear. The Commission specifically discussed Dr. Rosenzweig's independent medical evaluation of April 2002:

We recognize that Dr. Rosenzweig noted a "somatoform reaction and exaggerated pain behaviors," but he also confirmed a full thickness rotator cuff tear. Dr. Rosenzweig recommended aggressive medical treatment and possible surgical management in order to return normal function to the claimant's injured right shoulder. Dr. Rosenzweig opined that full recovery might not be possible short of surgery. Dr. Rosenzweig also concluded that the claimant's rotator cuff tear was related to her occupation.

Regarding the conservative treatment given to appellee before she underwent the independent medical evaluation, we note Dr. Rosenzweig's statement that the diagnosis of the torn rotator cuff was found after the fact, only after months of conservative care, and that her outcome possibly could have been different with timely diagnosis and intervention, and with earlier orthopaedic care. It is clear to us that the Commission's finding that appellee was entitled to additional medical treatment was based upon the recommendations of Drs. Sturdavant andRosenzweig, and upon the Commission's rejection of conflicting evidence. Affirmed.

Griffen and Crabtree, JJ., agree.

1 "Somatization" is defined in psychiatry as "the conversion of mental experiences or states into bodily symptoms." The Sloane-Dorland Annotated Medical-Legal Dictionary (1987).