BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. G307290 VIRGAL DIXON-REID GREGORY KISTLER TREATMENT CENTER FIRSTCOMP UNDERWRITER S GROUP CARRIER CLAIMANT RESPONDENT RESPONDENT OPINION FILED OCTOBER 21, 2014 Hearing before ADMINISTRATIVE LAW JUDGE ERIC PAUL WELLS in Fort Smith, Sebastian County, Arkansas. Claimant represented by MICHAEL ELLITG, Attorney, Fort Smith, Arkansas. Respondents represented by RANDY MURPHY, Attorney, Little Rock, Arkansas. STATEMENT OF THE CASE On July 24, 2014, the above captioned claim came on for a hearing at Fort Smith, Arkansas. A pre-hearing conference was conducted on December 4, 2013, and a pre-hearing order was filed on December 5, 2013. A copy of the pre-hearing order has been marked Commission's Exhibit No. 1 and made a part of the record without objection. At the pre-hearing conference the parties agreed to the following stipulations: 1. The Arkansas Workers' Compensation Commission has jurisdiction of this claim. 2. On all relevant dates, the relationship of employeeemployer-carrier existed between the parties. 3. The claimant sustained a compensable injury to her right shoulder.
2 By agreement of the parties the issues to litigate are limited to the following: rates. 1. A determination of the claimant s weekly compensation 2. Whether the claimant s right rotator cuff tear constitutes a compensable injury sustained in the accident on August 19, 2013, and her entitlement to reasonably necessary medical services and temporary total disability from August 20, 2013, to a date yet to be determined. 3. Whether the claimant sustained a compensable mental or psychological injury on August 19, 2013. 4. Whether the claimant is entitled to medical treatment related to her alleged mental or psychological injuries. 5. Whether the claimant is entitled to temporary total disability from August 20, 2013, to a date yet to be determined due to her alleged psychological difficulties. 6. Whether the claimant s attorney is entitled to an attorney s fee. Claimant s contentions are: The claimant contends that she has sustained a compensable mental or psychological injury as well as a physical injury in the employment related assault on August 19, 2013 and is entitled to benefits for this injury. These benefits include medical treatment and temporary total disability benefits. The claimant also contends that she is entitled to temporary total disability benefits from August 20, 2013 through a date yet to be determined as a result the combined effects of both her physical injury to her upper extremity and her resulting psychological injury. She also seeks the statutory
3 attorney s fees for her attorney on all appropriate benefits awarded. Respondents contentions are: Respondents contend that claimant has received all benefits to which she is entitled. Respondents contend that claimant s alleged emotional problems are not compensable under Arkansas Code Annotated 11-9-113. The claimant, in this matter, is a sixty-year-old female who was employed by the respondent on August 19, 2013. The claimant s job duties, at that time, included assisting and caring for clients who have some form of mental disability. At the hearing, the claimant gave direct examination testimony about an August 19, 2013, incident that she alleges to have caused a compensable right shoulder injury and compensable mental or psychological injury. Following is the claimant s testimony: Q. Would you briefly describe for the Judge this incident that occurred on August 19, 2013. A. As I traveled with my client down Rogers Avenue, he started to ask me to stop and eat. I had to decline in a way that wouldn't agitate him, and I told him we couldn't do it, because we were taking a trip later in the week. And he had a meltdown and began to hit me as I drove the car down Rogers Avenue. Q. And what did you do? A. Sir, I tried my best to keep my focus on traffic. And as soon as I could, I tried to get the car off the highway. Q. Did you try to ward off the blows A. I did.
4 Q. -- or did you just sit there and let him hit you? Can you describe to the Judge what action you took to protect yourself? A. As he sat on the right passenger seat adjacent to me, I raised my right arm to try and block him swinging at me with his left hand. Q. And did most of the blows strike you on the right forearm and right shoulder? A. Yes, sir, it did. Q. What happened once you got the vehicle stopped? A. He commenced to try to break the screen out of my radio. He still was beating the glass in my car. Q. Did you ultimately get him calmed down? A. I tried to make eye contact with him and do some of the things that I have been trained to do and actually did manage to get him to make eye contact with me and he was okay. Q. Would you describe this individual who was your client at the time? A. He is 6'3", 234. Q. How old is he? A. He's 31 years old, or was 31. Q. And does he have psychological and mental difficulties? A. Yes, he does. The claimant reported this incident to her supervisor and was sent by the respondent to see Dr. Terry Clark. Following is a portion of Dr. Clark s medical record from the claimant s August 19, 2013, visit:
5 CHIEF COMPLAINT: Virgal states that on August 19, 2013 she injured her right shoulder when she was assaulted by a client. HISTORY OF PRESENT ILLNESS: Virgal s primary problem is pain located in the right shoulder. She describes it as sore. It has been less than a day since the onset of pain. Virgal says that it seems to be constant. Her pain level is 3/10. She was struck by a client s fist in the right shoulder and forearm. She denies HA, neck pain or radicular symptoms......right Shoulder: Bruising is not present. A deformity is not present. Pain to palpitation is present over the shoulder laterally. Pain on motion is not present. Range of motion is normal. Strength is normal. At that time, Dr. Clark diagnosed the claimant with a right shoulder contusion and a forearm contusion. The claimant was instructed to take Ibuprofen over the counter for pain as needed and also was recommended a work status of regular duty. An x-ray of the claimant s shoulder was taken at the visit. The impression section of the x-ray report from that visit states, Mild degenerative changes at the acromioclavicular joint with no acute abnormalities seen. The following day, August 20, 2013, the claimant was again seen by Dr. Clark. The claimant continued to complain of right shoulder pain which the claimant indicated was constant. At that time, she reported her pain level as 4/10 and the report also states as follows: cannot find this one She is having dreams about the incident and feels in she is having some sx of PTSD. She feels nervous and paranoid. She is a care giver for an autistic person, and was attacked
6 by him yesterday. She has been very nervous and anxious since then. At that time, Dr. Clark prescribed the Zanax and also removed the claimant from work. On August 27, 2013, the claimant was again seen by Dr. Terry Clark. Following is a portion of Dr. Clark s medical record: Virgal s primary problem is pain located in the right shoulder. She describes it as sore. It has been 8 days since the onset of pain. Virgal says that it seems to be constant. She has noticed that it is made worse by moving it. It has improved with rest. She feels it is stable. Her pain level is 4/10. She states she is having dreams about the incident and feels that she is having no sx of PTSD. She feels nervous and paranoid. She is a caregiver for an autistic person, and was attacked by him. She remains extremely anxious in regards to the incident, and seems afraid to return as a caregiver to this client. She is having difficulty sleeping and concentrating. She c/o continued right shoulder pain......right Shoulder: TTP right shoulder laterally. Decreased ROM on abduction. Strength normal. At that time, Dr. Clark instructed the claimant to continue with the over the counter Ibuprofen and also directed the claimant to begin physical therapy for her right shoulder. The claimant was also to remain on Zanax. Dr. Clark continued the claimant s work status at a no work capacity. The medical records do indicate that the claimant began physical therapy at Total Rehab, Inc. at that time.
7 On September 16, 2013, the claimant was again seen by Dr. Clark. Following is a portion of the medical record from that visit: Virgal s primary problem is pain located in the right shoulder. She describes it as sore. It has been 28 days since the onset of pain. Virgal says that it seems to be constant. She has noticed that it is made worse by moving it. It is improved with rest. She feels it is stable. Her pain level is 5/10. She has been to PT, and has two more weeks at twice a week scheduled......right Shoulder: TTP right shoulder laterally. Decreased ROM on active abduction, but full ROM on passive movement. Strength normal. At that time, Dr. Clark indicated that the claimant was to continue with physical therapy and returned the claimant to work on restricted duty. On September 30, 2013, he claimant was again seen by Dr. Clark. This was the claimant s final visit with Dr. Clark. Following is a portion of that medical record: Virgal s primary problem is pain located in the right shoulder. She described it as sore. It has been about 6 weeks since the onset of pain. Virgal says that it seems to be constant. She has noticed that it is made worse by moving it. It is improved with rest. She feels it is stable. Her pain level is 2/10. She has completed PT and made good progress there. She has been working light duty, and feels ready to return to regular duty......right Shoulder: Minimal residual TTP right shoulder laterally. Full ROM but with mild disomfort on abduction. Strength normal. No edema or ecchymoses. Distal N-V status intact.
8 Again, during that visit, the claimant was released to a regular duty status. At the hearing, the claimant gave testimony regarding her employment with the respondent after she was released to full duty by Dr. Clark on September 30, 2013. Following is that testimony: A. The doctor released me on September 30 th. And when I returned that morning, they let me know that they no longer had a job for me. Q. Did they ever offer you any employment, light duty or otherwise, after that? A. Yes, sir. They said they'd use me as a fill-in, and I agreed to do such. Q. Did they ever call you? A. Yes, sir. They called me a couple of days later and asked me to go into the house with another autistic man. Q. And what did this involve? A. The same duties that I had performed. Q. Including transporting him around? A. Yes, sir. Q. And what was this gentleman's size? A. I have no idea. She called me and asked me to come and interview with that client, and, at that time, I declined to do so. I wasn't able to do that. Q. Why couldn't you do that? A. Because I was already stressing and still having problems from what had just happened to me. Q. Did they call you back for any other fill-in jobs?
9 A. She called me for a fill-in of a young girl, but the next morning she called me and told me never mind. Q. Have you ever -- other than this job with this other autistic gentleman -- actually refused any job they've offered you? A. No, sir, I have not. After the claimant was released by Dr. Clark it was her testimony that she continued to have right shoulder difficulties and eventually sought treatment at Oklahoma State University Medical Center. The claimant sought that treatment for both her alleged post traumatic stress disorder and her complaints of right shoulder pain. This treatment eventually resulted in the claimant undergoing an MRI of her right shoulder at A1 Imaging of Tulsa. The diagnostic report of that MRI is found in Joint Exhibit No. 1, Page 109. Following is the impression portion of that diagnostic report: 1. The examination demonstrates a fullthickness tear of the anterior-most portion of the supraspinatus tendon. During her course of treatment at the Oklahoma State University Medical Group, the claimant was seen by Dr. Patrick Kelly who is an orthopedic surgeon. Dr. Kelly had two clinic visits with the claimant and also had the opportunity to review her right shoulder MRI. Dr. Kelly s deposition was taken in this matter. After review of the medical records from Dr. Kelly s visits with the claimant and his overall testimony in deposition, it is clear that Dr. Kelly believes that the claimant suffered her
10 full thickness tear of the anterior most portion of the supraspinatus tendon as a result of her August 19, 2013, incident. Dr. Kelly has recommended both surgical intervention and physical therapy for treatment of the claimant s right shoulder. It is clear from the review of both Dr. Clark s records and Dr. Kelly s records and deposition testimony that the mechanism and symptomotology of the claimant s injury is not typical for this type of tear. However, Dr. Kelly explains throughout his deposition his belief that the claimant s right shoulder difficulties are related to this August 19, 2013, incident. In order for the claimant to prove that she suffered a compensable right shoulder injury she must prove the existence of objective medical findings. Here, the claimant can do that through the MRI performed at A1 Imaging of Tulsa on April 9, 2014. The claimant must also prove a causal connection between her August 19, 2013, incident and her objective medical findings. On July 15, 2014, Dr. Clark authored a letter to the respondents attorney in response to questions the respondents attorney asked regarding the claimant s treatment and MRI report of April 19, 2014, which showed a full thickness tear of the supraspinatus tendon. Following is a portion of the letter authored by Dr. Clark: Full-thickness tears of the supraspinatus tendon typically occur with a forceful, powerful elevation of the right arm against resistance. Examples of this include someone attempting to break their fall from a ladder or overhead handrail, or while forcefully trying to lift a heavy object. Ms. Dixon-Reid stated that her injury occurred when she was struck by a client s fist in her
11 right shoulder and forearm. With a reasonable degree of medical certainty, it is more than likely that the reported injury did not cause a torn supraspinatus tendon. In terms of the acuity or chronicity of the finding on the MRI, it is difficult to say with certainty if this is an acute or long standing problem. Mild atrophy of the supraspinatus and infraspinatus muscles could indicate either an acute problem or a chronic problem for which the muscles have compensated. During Dr. Kelly s deposition he was asked about the mechanism of injury that Dr. Clark reported in his medical records and differences that existed between what the claimant reported to Dr. Kelly. Following is a portion of Dr. Kelly s deposition testimony regarding those differences: Q. Okay, and what was that history? A. He says that Ms. Dixon states that her injury occurred when she was struck by a client s fist in her right shoulder and forearm. Q. And that s not the same history that she told you; is that correct? A. She said that she was hit by him and she was fending him off. Q. Again, we re just trying to get what you know and what was told to you. A. Yeah, but not precisely, I wouldn t say. Q. In fact, we ve got the record. You didn t mention anything remotely similar to what Ms. Dixon-Reid told Dr. Clark as he documented it there did you? A. Not exactly what he said, no. Q. Alright. And at least you will agree with Dr. Clark that that type of reported incident is not the type of incident that produces a
12 tear in the anterior most portion of the supraspinatus tendon? A. Yeah. Yes-what he says is he didn t tell me the position of the arm, he didn t tell me any of the other resultants or esultants, so I can t answer that based on what he stated. Q. Okay. Well, if a patient is struck in the arm in the manner described by Dr. Clark, at least you will agree that it is that s not the typical way that the tear occurs, is it? A. Once again, I don t know what the position of her arm was. So if she s struck in the forearm with her hands up this way, and she s resisting that, it can happen. If the arm is struck resting this way, probably not, struck in the forearm. Q. Okay. A. I don t know if she was pushing away. That s why I can t answer that question based on what he says. Q. In the literature regarding rotator cuff tears of this nature, is the typical situation a direct blow to the arm as given to Dr. Clark, or is it, as Dr. Clark noted a fall or something of that nature? A. I mean I ve seen-clinically, I ve seen people who have fallen into door frames with their-and hit their shoulder, and that compression or that impingement will propagate a tear. Q. But not a tear of this anterior most portion of the supraspinatus tendon in this location? A. Any part of the rotator cuff, depending on the position of the arm at the time of impact. Q. So looking at the literature, is it your testimony that the most common cause would be a direct blow to the arm or another cause as described by Dr. Clark as being the most typical? A. No. That is not the most typical.
13 In his deposition testimony, Dr. Kelly also took up the issue of whether the claimant s right shoulder difficulties were the result of an acute incident or whether they were chronic in nature. Following is Dr. Kelly s deposition testimony: Q. Now, x-rays of the right shoulder show no acute findings. A. Okay. Q. Would that be consistent with the tear? A. A small tear, yes. Q. Okay, but it would have to be extremely small; is that right? A. No. They can be a centimeter and still find them. Q. Would you expect x-rays to show a tear? A. No. Q. Not at all? A. A chronic tear, yes. Q. A chronic tear? A. Yes. Q. Okay. A. I would see a shift in the position of the humeral head of the glenoid. Q. Do x-rays sometimes show tears? A. Not the actual tear, but just the change in the position of the bone structure. You can t see that on a plain film. Q. Now, were you aware that the x-rays in this case were normal? A. Yes, she told me they were normal.
14 After a review of the medical evidence in this matter including the records of Dr. Clark and Dr. Kelly along with diagnostic testing and Dr. Kelly s deposition, I find that the claimant did suffer a compensable right shoulder injury during the August 19, 2013, incident. As such, the claimant is entitled to reasonable and necessary medical treatment for her right shoulder injury. The claimant has also asked the Commission to consider her entitlement to temporary total disability benefits from August 20, 2013, to a date yet to be determined. I note that Dr. Clark did return the claimant to full duty on September 30, 2013. At the hearing, the claimant gave testimony regarding her return to full duty and it is clear that the claimant s inability to return to work, at that time, dealt with her alleged mental or psychological difficulties. Here, the claimant is entitled to temporary total disability benefits from August 20, 2013, until she was returned to light duty by Dr. Clark on September 16, 2013. I also note a letter submitted by the respondents regarding the claimant s October 3, 2013, email in which she declined a work assignment in which she was referred to work with an adult male who has autism. That letter is written by Sharon Dewitt, the claimant s supervisor, and found at Respondents Exhibit No. 1, Page 2. The claimant has also asked the Commission to determine whether she sustained compensable mental or psychological injuries on August 19, 2013. Upon review of the medical evidence and the claimant s testimony, it is undisputed that the claimant has not
15 been seen, treated, or diagnosed by a licenced psychiatrist or psycologist. As such, the claimant has failed to meet the requirements under Ark. Code Ann. 11-9-113 and has failed to prove that she suffered a compensable mental or psychological injury on August 19, 2013. I also note that the claimant has asked for medical treatment and temporary total disability benefits associated with her alleged mental or psychological injuries. As the claimant has failed to prove those injuries compensable, she has also failed to prove her entitlement to any benefits. The Commission has also been asked to consider the claimant s compensation rates. I note a letter found at Respondents Exhibit No. 1, Page 3, written by Brenda Kishner, an office assistant for the respondent. That letter states, Virgal Dixon-Reid was employed by The Gregory Kistler Treatment Center on 01/25/13 as part-time, 16 hours per week. On 03/18/13 her hours were changed to full-time, 40 hours per week. The last day which she worked was on 09/30/13. Employee payroll records for the claimant were also introduced into evidence at Respondents Exhibit No. 1, Pages 4 and 5. After review of those records and given consideration to the claimant s change in status from part-time to full-time on March 18, 2013, I find that the claimant s average weekly wage is $600.36. As such, the claimant is entitled to a temporary total disability rate of $400 and a permanent partial disability rate of $300. From a review of the record as a whole, to include medical reports, documents, and other matters properly before the
16 Commission, and having had an opportunity to hear the testimony of the witness and to observe her demeanor, the following findings of fact and conclusions of law are made in accordance with A.C.A. 11-9-704: FINDINGS OF FACT & CONCLUSIONS OF LAW 1. The stipulations agreed to by the parties at the prehearing conference conducted on December 4, 2013, and contained in a pre-hearing order filed December 5, 2013, are hereby accepted as fact. 2. The claimant s average weekly wage is $600.36 with a temporary total disability rate of $400 and a permanent partial disability rate of $300. 3. The claimant has proven by a preponderance of the evidence that she suffered a compensable right shoulder injury in the form of a right rotator cuff tear during the specific incident that occurred on August 19, 2013. 4. The claimant has proven by a preponderance of the evidence that she is entitled to reasonable and necessary medical treatment regarding her compensable right shoulder injury. This treatment includes surgical intervention recommended by Dr. Kelly and its after care. 5. The claimant has proven by a preponderance of the evidence that she is entitled to temporary total disability benefits from August 20, 2013, to September 16, 2013, when she was returned to light duty by Dr. Kelly.
17 6. The claimant has proven by a preponderance of the evidence that her attorney is entitled to an attorney s fee in this matter commensurate with the benefits awarded herein and the Arkansas Workers Compensation Act. ORDER The respondents shall be responsible for the costs associated with the claimant s reasonable and necessary medical treatment for her right shoulder injury including surgical intervention and after care recommended by Dr. Kelly. The respondents shall also reimburse the claimant for any out of pocket expenses associated with her compensable right shoulder injury. The respondents shall pay the claimant temporary total disability benefits from August 20, 2013, to September 14, 2013, at a weekly rate of $400. The respondents shall pay to the claimant's attorney the maximum statutory attorney's fee on the benefits awarded herein, with one half of said attorney's fee to be paid by the respondents in addition to such benefits and one half of said attorney's fee to be withheld by the respondents from such benefits pursuant to Ark. Code Ann. 11-9-715. All benefits herein awarded which have heretofore accrued are payable in a lump sum without discount.
18 This award shall bear the maximum legal rate of interest until paid. IT IS SO ORDERED. ERIC PAUL WELLS ADMINISTRATIVE LAW JUDGE