BEFORE THE ARKANSAS WORKERS COMPENSATION COMMISSION CLAIM NO. G JEFFREY STRUTTON, EMPLOYEE

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1 BEFORE THE ARKANSAS WORKERS COMPENSATION COMMISSION CLAIM NO. G JEFFREY STRUTTON, EMPLOYEE COOPER TIRE & RUBBER CO., SELF-INSURED EMPLOYER CENTRAL ADJUSTMENT CO. INC., THIRD PARTY ADMINISTRATOR CLAIMANT RESPONDENT RESPONDENT OPINION FILED FEBRUARY 2, 2015 Hearing conducted before ADMINISTRATIVE LAW JUDGE MARK CHURCHWELL, in Texarkana, Miller County, Arkansas. The claimant was represented by HONORABLE PAUL MILLER, Attorney at Law, Texarkana, Texas. The respondent was represented by HONORABLE FRANK B. NEWELL, Attorney at Law, Little Rock, Arkansas. STATEMENT OF THE CASE A hearing was held in the above-styled claim on November 20, 2014, in Texarkana, Arkansas. A Prehearing Order was entered in this case on October 7, The following stipulations were submitted by the parties and are hereby accepted: 1. The employee-employer relationship existed, and that the date of injury was March 20, Claimant is entitled to the maximum compensation rates. 3. Respondents have accepted liability for a compensable injury sustained by claimant on or about March 20, Weekly benefits have been paid at the maximum compensation rates. 5. Respondents are accepting liability for 52.5 weeks of permanent impairment benefits. 6. Respondents controvert a claim for any amount of permanent impairment in excess of 52.5 weeks.

2 2 By agreement of the parties, the issues to be litigated and resolved at the present time were limited to the following: Claimant: 1. Whether Mr. Strutton sustained an on-the-job closed head injury on March 20, 2013, which resulted in permanent partial disability. He should receive benefits including a 26% permanent partial disability rating for impairment. 2. Attorney fees. Respondent: 1. Extent of claimant s permanent physical impairment. The record consists of two volumes: (1) the November 20, 2014, hearing transcript and the exhibits contained therein, and (2) a transcript of Mr. Strutton s oral deposition taken August 8, 2014 marked Joint Exhibit 1. FINDINGS OF FACT AND CONCLUSIONS OF LAW 1. The employee-employer relationship existed, and that the date of injury was March 20, Claimant is entitled to the maximum compensation rates. 3. Respondents have accepted liability for a compensable injury sustained by claimant on or about March 20, Weekly benefits have been paid at the maximum compensation rates. 5. Respondents are accepting liability for 52.5 weeks of permanent impairment benefits. 6. Respondents controvert a claim for any amount of permanent impairment in excess of 52.5 weeks.

3 3 7. The claimant has failed to establish by a preponderance of the evidence that he sustained a compensable physical injury to his brain. 8. The claimant is entitled to 105 weeks of benefits for permanent anatomical impairment for total loss of use of his right eye. 9. Pursuant to Arkansas Code Annotated Section (d)(2)(B), the claimant s 105 weeks of permanent partial disability benefits shall be paid at his total disability compensation rate, not his permanent partial disability compensation rate. 10. The respondent is entitled to credit against its liability for benefits and controverted attorney s fees, the $23, in benefits for permanent anatomical impairment for which the respondent acknowledged liability in the prehearing conference conducted on October 6, 2014, and as reflected in the Prehearing Order filed on October 7, DISCUSSION This claim involves the nature and extent of the permanent anatomical impairment for vision problems that Mr. Strutton sustained arising out of an admittedly compensable industrial accident on March 20, 2013, when he was struck near the edge of his right eyebrow by a pipe. At that time, Mr. Strutton was 46 years old. Approximately six years prior to the accident, Mr. Strutton developed nearsightedness and began wearing prescribed bifocals. (T. 49) After the accident, Mr. Strutton now generally carries with him three pairs of glasses: one pair for driving, one pair for reading, and the third pair for intermediate distances of approximately 10 to 50 feet. (T. 34) Mr. Strutton testified that all of his

4 4 current glasses contain prisms to correct for double vision. The reading glasses have a very strong prism because his double vision is worse up close. (T. 23) The Arkansas Workers Compensation Commission has adopted the American Medical Association Guides to the Evaluation of Permanent Impairment (4th ed. 1993) [hereinafter Guides ] for the purpose of determining permanent anatomical impairment. According to chapter 8 of the Guides, the functions of the eye include: (1) corrected visual acuity for near and far objects; (2) visual field perception; and (3) ocular motility with diplopia. (p. 8/211) The general steps for determining impairment under chapter 8 are as follows: (1) determine for each eye the loss of visual field, (2) determine the loss of central vision for each eye, and (3) determine the impairment due to ocular motility (p. 8/217), then (4) combine the impairments obtained for each separate eye together using Table 7 to determine an impairment to the visual system, then (5) use Table 6 to convert the visual system impairment to a whole person impairment. In the present case, both parties agree that Mr. Strutton has sustained permanent impairment from defect (double vision) related to the third function of the eye - ocular motility with diplopia. The only physician who has attempted to rate Mr. Strutton s impairment is Dr. Vestal

5 5 Smith who is a rehabilitation physician, and not one of the several ophthalmologists who have evaluated Mr. Smith. (T. 21) Dr. Smith in November of 2013 initially assigned Mr. Strutton an 8% impairment to the whole person secondary to diplopia and difficulty with ocular motility, and a separate 3% impairment to the whole person pursuant to Table 2 of Chapter 4 (the central nervous system) due to weaknesses in visual scanning speed, visual motor processing and executive processing speed identified through neuropsychological testing. (R. Exh. 1 p. 4) In February of 2014, Dr. Smith consulted with one of Mr. Strutton s treating ophthalmologists, Dr. Andrew Lawton, and then revised Mr. Strutton s eye impairment to 100%, which converts to a 25% impairment of the visual system and converts to a 24% impairment to the whole body. Combining the newly rated 24% impairment to the whole body for the diplopia with the 3% impairment to the whole body for weaknesses in visual scanning speed, visual motor processing and executive processing speed previously assessed, Dr. Smith assigned Mr. Strutton an overall rating of 26% rated to the whole body. (C. Exh. 1 p. 11) Mr. Strutton contends that his on-the-job injury was a closed head injury for which he should be paid an anatomical impairment of 26% rated to the whole body, in addition to wage loss benefits for an unscheduled injury. (Comm. Exh. 1

6 6 p. 2) I note that under the formula contained in Arkansas Code Annotated section , a 26% rating to the whole body, if that is the correct rating, would entitle Mr. Strutton to 117 weeks of benefits (.26 x 450 weeks) at his permanent partial disability compensation rate. The respondents contend that the claimant s appropriate impairment rating is the 25% to the visual system assigned by Dr. Smith, and through a series of conversions derived from but not contained in either the Guides or the applicable statutes, the respondents contend that Mr. Strutton is entitled to 52.5 weeks of benefits for the 25% rating to his visual system. The respondents have not agreed to accept that portion of Dr. Smith s impairment rating assigned for the central nervous system, and the respondents have not accepted that Mr. Strutton sustained an unscheduled injury. Issue 1: What Is The Appropriate Rating Under The Arkansas Workers Compensation Law For Mr. Strutton s Eye Impairment If The Impairment Is Rated For A Scheduled Injury? As a threshold matter, I note that Dr. Smith has performed the only impairment rating calculations in the record. I also note that both parties rely in their contentions on Dr. Smith s opinion, written on February 3, 2014, that Mr. Strutton s diplopia is sufficient to assign a 25% impairment to the visual system (which converts to a 24% impairment to the whole body under the Guides conversion table). Consequently, I find from that undisputed

7 7 evaluation that: (1) Mr. Strutton has diplopia within 20 degrees of the center of fixation; (2) pursuant to Figure 3 and Example 1 on page 8/217, diplopia within the central 20 degrees is estimated to be 100% impairment of ocular motility, (3) pursuant to Example 1 on page 8/217, a 100% impairment of ocular motility is equivalent to the total loss of vision of one eye. In addition, I note that pursuant to the last paragraph on page 8/217, the impairment for ocular motility is combined with the other rated impairments only for the one eye that otherwise manifests the greater impairment. The evaluator is directed to disregard the loss of ocular motility in calculating impairment for the other eye. In the present case, the vast majority of the eye problems (other than the double vision) that Mr. Strutton has described in his hearing testimony and in his deposition testimony (i.e., moving at a different speed, limited movement to the right before twitching, pain looking up, eye pain after reading), are difficulties with his right eye only and are not problems with his left eye. (T. 17, 20, 33, 36, 43, 45) Consequently, I find that Mr. Strutton s right eye manifests the greater impairment. My finding that Mr. Strutton s right eye manifests the greater impairment also appears consistent with an FCE evaluator s observation in March of 2014 that Mr. Strutton performed various portions

8 8 of the FCE testing with his right eye closed. (C. Exh. 1 p. 14, 21, 22, 24 25, 26, 28) Pursuant to the directions in the last paragraph on page 8/217, and consistent with Example 1 on that page, I therefore find that Mr. Strutton s 100% impairment of ocular motility should be disregarded in the left eye, and that the 100% impairment of the right eye is equivalent to the total loss of vision of the right eye. I also note that a permanent eye injury is scheduled under the provisions of Arkansas Code Annotated section Under that statute a permanent loss of 80% or more of the vision of one eye shall be the same as for the loss of an eye, and the loss of an eye where there was previously useful vision entitles the injured worker to 105 weeks of benefits. Ark. Code Ann (a)(14) and (c)(1). Consequently, I find that Mr. Strutton is entitled to 105 weeks of benefits under Arkansas Code Annotated for the permanent impairment assigned for his post-injury diplopia. In addition, pursuant to Arkansas Code Annotated Section (d)(2)(B), the claimant s 105 weeks of permanent partial disability benefits for total loss of use of a member (eye) shall be paid at his total disability compensation rate, not his permanent partial disability compensation rate.

9 9 I do not find the respondent s contention - that the appropriate rating entitles Mr. Strutton to only 52.5 weeks of benefits - for several reasons. First, it defers logic to begin with impairment data indicating that a worker shall be assigned impairment equivalent to the total loss of use of an eye (i.e. 105 weeks of benefits under our statute) and then devise a system of conversion factors that somehow reduces those benefits to precisely half (52.5 week) of what the statute provides. Second, I point out that under Arkansas Code Annotated section , if an injured worker loses one eye, he is entitled to 105 weeks of benefits, and if he then loses his second eye, he is entitled to the additional 105 weeks of benefits payable under the statute for loss of the second eye, i.e., the worker is compensated the same amount (105 weeks) for the total loss of use of each eye. However, the visual system conversion provided for in Chapter 8 of the Guides and central to Mr. Newell s argument, the total loss of use of the first eye is deemed to represent only a 25% loss (instead of 50% loss as Section 521 provides) of the visual system. This examiner sees no persuasive rationale for converting an eye impairment to a visual system impairment as provided for under the Guides when the Arkansas injury schedule in Section 521 clearly provides benefits for the partial or total loss of use of an eye

10 10 and not for partial or total loss of use of the visual system. Third, I note that, while the Commission has adopted the Guides for the purposes of determining impairment, the Commission is still bound to follow the statutes first. Terrell Dean v. City of Little Rock, Full Workers Compensation Commission, Opinion filed January 10, 2010 (F602881). Mr. Newell s proposed conversion from the eye to the visual system in the present case is unnecessary under Arkansas Code Annotated section and would result in a reduction of benefits unintended by the statute, an error that the Commission would not allow in Dean. Issue 2: Did Mr. Strutton Sustain an Unscheduled Injury? Alternatively, Mr. Miller contends that some or all of Mr. Strutton s eye-related impairment is due to a closed head injury. Mr. Miller notes that a closed head injury (as opposed to an eye injury) would not be scheduled under Arkansas Code Annotated section , so that Mr. Strutton s impairment caused by a brain injury would be apportioned to the whole body. (Comm. Exh. 1 p. 2) The respondents deny that Mr. Strutton has any permanent unscheduled injury. (Comm. Exh. 1 p. 3) In considering Mr. Miller s brain injury contention, I note that any determination of the existence and extent of physical impairment must also be supported by objective and measurable physical findings. Ark. Code Ann

11 11 704(c)(1)(B). In addition, I note that objective medical findings are also necessary to establish the existence and extent of an injury, but are not essential to establish the causal relationship between the injury and the job. Wal- Mart Stores, Inc. v. VanWagner, 337 Ark. 443, 990 S.W.2d 522 (1999). Objective findings are defined as those findings which cannot come under the voluntary control of the patient. Ark. Code Ann (16)(A)(i). I find the issues regarding impairment for an alleged brain injury in this case at least somewhat similar to the relevant facts under consideration in Parson v. Arkansas Methodist Hosp., 103 Ark. App. 178, 287 S.W.3d 645 (2008). Ms. Parson sustained a compensable injury when she fell and hit her head on a desk, resulting in bruising and black eyes. Ms. Parson later filed a claim for a closed head injury and testified that she experienced memory loss, attention-span problems and headaches after the fall such that she could no longer perform her duties as a nurse. A neurologist assigned Ms. Parson a 35% impairment for cognitive decline measured by two neuropsychological examinations and an additional 35% impairment for headaches. The Commission found that Ms. Parson failed to establish a compensable physical injury to her brain. In affirming the Commission s conclusion that an alleged brain injury was not supported by objective findings, the Court noted that a hematoma to the forehead

12 12 and facial contusions are undoubtedly objective, but they only supported the injury to the head for which the employer had already paid compensation. The Court noted its prior holding that neuropsychological testing, without more, is not adequate to establish a brain injury by objective findings. The Court noted that the MRI in evidence of Ms. Parson s brain did not show any objective sign of a traumatic injury, and an EEG test result also in evidence did not reveal any abnormalities. The Court also found that a diagnosis of concussion was not an objective finding because there was nothing to indicate that the diagnosis was based on anything other than subjective criteria. By comparison in the present case, Mr. Strutton on March 29, 2013, underwent a CT scan of the brain which did not detect any acute cerebral or cerebellar pathology. (C. Exh. 1 p. 1) Dr. Smith s report dated November 20, 2013, (8 months after the injury) references a concussion diagnosis, neuropsychological testing, and Mr. Strutton having developed significant bruising around the right eye. (R. Exh. 1 p. 4) However, as also occurred in Parson v. Arkansas Methodist Hosp., supra, nothing in Dr. Smith s report indicates that the earlier concussion diagnosis or the neuropsychological testing were either one based on anything other than subjective criteria. Neither party has offered into evidence any medical reports of a physician from March of 2013 who may have actually seen bruising, and in any

13 13 event, as in Parson v. Arkansas Methodist Hosp., supra, this examiner can see no basis for concluding that bruising around the eye is a finding that supports an injury to the brain. The evidence that would appear to support a conclusion that at least some of Mr. Strutton s right eye problems may be a manifestation of a physical brain injury includes (1) a statement in Dr. Lawton s report of April 4, 2013, that Mr. Strutton has evidence of convergence insufficiency as a result of his concussion, [emphasis mine] and (2) Mr. Strutton s testimony that Dr. May Ellen Hoehn told him bluntly that his eye condition was due to a brain injury. (C. Exh. 1 p. 2; T ) However, in that same April 4, 2013 report, Dr. Lawson also indicated that Mr. Strutton developed bruising around the eye associated with pain and double vision. (C. Exh. 1 p. 2) This portion of Dr. Lawson s report therefore appears to associate Mr. Strutton s double vision with the bruising around his eye and therefore not to any type of traumatic brain injury. In addition, contrary to Mr. Strutton s testimony that Dr. Hoehn bluntly assured him that his eye problems were due to a brain injury, Dr. Hoehn s only report in evidence, dated April 15, 2013, contains two assessments, and beside each assessment she made the notation? Etiology. The first assessment related to Mr. Strutton s assessment of

14 14 convergence insufficiency, and the second related to his description of pain with eye movements. (C. Exh. 1 p. 8) There is no indication anywhere in that report indicating that Dr. Hoehn attributed any of Mr. Strutton s eye symptoms to a traumatic brain injury, and I interpret Dr. Hoehn s use of the notation? Etiology for both assessments to indicate that Dr. Hoehn could not determine the etiology for the conditions that Mr. Strutton presented with. I also note that Dr. Lawton referred Mr. Strutton to Dr. Hoehn. In light Dr. Lawton s notation that Mr. Strutton s double vision was associated with the bruising around his eye, and Dr. Hoehn s use of the notation of? Etiology next to her assessment of convergence insufficiency, Mr. Strutton has failed to establish by a preponderance of the evidence that any of his eye symptoms are objective manifestations of a physical brain injury. Because I find that the claimant has failed to support the existence of a physical brain injury with objective medical findings, I find that the claimant has failed to establish that he is entitled to the permanent benefits that he seeks for an unscheduled closed head injury. AWARD The respondents are directed to pay benefits in accordance with the findings set forth herein. All accrued sums shall be paid in a lump sum without discount and this award shall earn interest at the legal rate until paid,

15 15 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 additional 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

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