{"id":"alj-G305185-2024-09-12","awcc_number":"G305185","decision_date":"2024-09-12","opinion_type":"alj","claimant_name":"Cynthia Forsgren","employer_name":"Health Management Associates Inc","title":"FORSGREN VS. HEALTH MANAGEMENT ASSOCIATES INC. AWCC# G305185 September 12, 2024","outcome":"granted","outcome_keywords":["granted:3"],"injury_keywords":["neck","shoulder","cervical","back"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/FORSGREN_CYNTHIA_G305185_20240912.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"FORSGREN_CYNTHIA_G305185_20240912.pdf","text_length":17493,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO. G305185 \n \nCYNTHIA J. FORSGREN, EMPLOYEE CLAIMANT \n \nHEALTH MANAGEMENT ASSOCIATES INC., EMPLOYER RESPONDENT#1 \n \nLIBERTY MUTUAL GROUP, CARRIER RESPONDENT#1 \n \nDEATH & PERMANENT TOTAL DISABILITY TRUST FUND                  RESPONDENT#2 \n \n \n OPINION FILED SEPTEMBER 12, 2024 \n \n \nHearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Fort Smith, Sebastian \nCounty, Arkansas. \n \nClaimant represented by EDDIE H. WALKER JR., Attorney, Fort Smith, Arkansas. \n \nRespondents #1 are represented by RICK BEHRING JR., Attorney, Little Rock, Arkansas. \n \nRespondent #2 is represented by CHRISTY L. KING, Attorney, Little Rock, Arkansas; although \nnot appearing at the hearing. \n \n \n STATEMENT OF THE CASE \n  \n On July 23, 2024, the above captioned claim came on for a hearing at Fort Smith, Arkansas. \nA pre-hearing conference was conducted on May 16, 2024, and a pre-hearing order was filed on that \nsame date. A copy of the pre-hearing order has been marked as Commission’s Exhibit #1 and made \na part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1.   The Arkansas Workers’ Compensation Commission has jurisdiction of this claim.  \n            2.   The employee/employer/carrier relationship existed on March 18, 2012. \n            3.   Claimant sustained a compensable injury on March 18, 2012. \n\nForsgren-G305185 \n2 \n \n \n       4.   The respondents have controverted the claim regarding wage loss. \n       5.  The compensation rates are $574.00 for temporary total disability and $421.00 for permanent \npartial disability.  \nBy agreement of the parties, the issues to be litigated and resolved at the forthcoming hearing \nwere limited to the following: \n1.     Whether claimant is entitled to wage loss benefits. \n2.      Whether claimant is entitled to medical benefits. \n3.      Attorney fees. \nAt the hearing, the parties announced that issue #2 had been resolved and was not presented. \nAll other issues are reserved by the parties. \nThe claimant contends that “She returned to work following her compensable injuries and her \njob duties aggravated her symptoms. As a result of the impact of her job duties on her condition she \nrequested her employer to provide her with part-time work or at least work that she could perform \nwithout aggravating her condition and her employer refused to grant such request. As a consequence \nof  her  employer  failing  to  provide  job  accommodations  the  claimant  ended  up  leaving  that \nemployment.  The  permanent  restrictions  that  have  been  placed  on  the  claimant  as  a  result  of  her \ncompensable  injuries  negatively  impacts  her  access  to  the  labor  market  and  therefore  the  claimant \ncontends  that  she  is  entitled  to  wage  loss  disability.  The  claimant  contends  that  she  is  entitled  to \nreasonably  necessary  medical  treatment.  The  claimant  contends  that  her  attorney  is  entitled  to  an \nappropriate attorney’s fee.” \nRespondents #1 contend that “To date, all benefits to which the claimant is entitled have been \npaid and have not been controverted. The respondents accepted this claim as compensable. To date, \nthe  respondents  have  paid  for  all  reasonable  and  necessary  medical  treatment.  To  date,  the \n\nForsgren-G305185 \n3 \n \n \nrespondents  have  paid  all  appropriate  temporary  disability  benefits.  To  date,  the  respondents  have \npaid all appropriate permanent partial disability benefits related to permanent anatomical impairment \nratings  assigned  to  her  neck  (7%)  and  right  shoulder (6%).  The  claimant  returned  to  work  for  the \nrespondent employer. Upon information and belief, the respondent employer offered work within her \nrestrictions until her voluntary resignation/separation. The respondents are investigating this claim; \nhowever,  at  this  time,  the  respondents  contend  that  the  claimant  is  not  entitled  to  any  wage  loss \nbenefits. The respondents reserve the right to supplement and/or amend their contentions prior to \nthe full hearing.” \n Respondent  #2  contends that “The  Death  and  Permanent  Total  Disability  Trust  Fund \nreserves its right to identify the issues to be litigated upon completion of discovery.” \n            From a review of the entire record including medical reports, documents, and other matters \nproperly before the Commission, and having had an opportunity to hear the testimony of the witness \nand  to  observe her demeanor,  the  following  findings  of  fact  and  conclusions  of  law  are  made  in \naccordance with A.C.A. §11-9-704: \n \n  FINDINGS OF FACT & CONCLUSIONS OF LAW \n \n 1.   The stipulations agreed to by the parties at a pre-hearing conference conducted on May \n16, 2024 and contained in a pre-hearing order filed that same date are hereby accepted as fact. \n 2.  Claimant has met her burden of proving by a preponderance of the evidence that she has \nsuffered a loss in wage earning capacity in an amount equal to 15% to the body as a whole. \n \n FACTUAL BACKGROUND \n Following the hearing, I requested briefs from the parties on the issue of wage-loss disability. \nThose briefs were very much appreciated and are blue backed to the record of this case.  \n\nForsgren-G305185 \n4 \n \n \nHEARING TESTIMONY  \n \n Claimant  testified  that  in  2012, she  suffered  an admittedly compensable injury  to  her  neck, \nshoulder,  and  arm  while  employed  with  respondent  Health  Management Associates. Claimant \neventually received surgery on her shoulder which did not resolve her issues. She continued to have \nnumbness that radiated down her arm and into the palm of her hand.  \n Claimant was released to work but testified that she had trouble operating the mouse on the \ncomputer and caring for patients, such as hanging an I-V bag above her head and giving injections. \nAt the end of a twelve-hour shift, her neck and shoulders hurt. Claimant’s work was considered light \nduty  work  but she was  never  symptom  free  while  doing  that. When  she  was  switched  to  full  duty \nwork,  her condition worsened. She  reported  to  both  her  doctor  and  employer  that  she  was  having \nproblems  while  working  but  felt  there  was  nothing  being  done  to  help  her. She  resigned  her \nemployment  in December 2014. Claimant  was  seen  by  Dr.  Blankenship  after  Dr.  Harp  ordered  a \ncervical  MRI. Dr.  Blankenship  prescribed  a  course  of  physical  therapy,  medication,  some topical \ncream, and referred her to Dr. Cannon, a pain management specialist. Her condition improved when \nshe was not working but was still there. Dr. Blankenship suggested surgery would be appropriate, but \nclaimant wanted to avoid that unless it was her last resort. She believes resigning from her job helped \nher avoid having surgery on her neck. \n Since  her  resignation  in  2014,  claimant  has  not  worked  anywhere  and  has  not  sought \nemployment anywhere else.  As of the date of the hearing, claimant was sixty-five years old with an \nassociate degree in nursing from WestArk. She has worked as an RN since December 1979. \n Claimant made it clear that she was not claiming she was totally disabled and conceded it might \nbe possible for her to find some kind of part-time work if it was light duty. However, claimant has \nchosen  not  to  do  that  because  she  feared  ending  up  in  a situation where she  would  be  required  to \n\nForsgren-G305185 \n5 \n \n \nperform  duties  that  would  worsen  her  condition. Claimant  wants  to  avoid surgery, if  possible,  and \nbelieves not working is her safest way to do so. \n On cross examination, claimant said that prior to working as a nurse, she had worked in an \noffice  and  had  done  sales  for  a  hardware  store. Both  those  positions  required  her  to  work  on  a \ncomputer  and  answer  phones,  just  as  she  had  to  do  while  working  as  a  nurse. Claimant  said  that \nworking as an office clerk is something she does not want to do because it is boring. \n Claimant  agreed  that  Dr.  Harp  had  released  her  to  return  to  work  without  restrictions  in \nOctober 2013 and that she worked at full duty at that time until she resigned in December 2014. She \nearned the same wages after being released to return to full duty in October 2013 until she resigned \nin December 2014.  \nClaimant testified that her duties varied while working as an RN. Some of her nursing activities \nmade her symptoms worse, but others did not affect her at all. Claimant said she missed a few days of \nwork because of her arm before she resigned. Her job was modified to reduce her hours from twelve-\nhour shifts to eight-hour shifts. At the time she resigned, she was not under any work restrictions, and \nher position as an RN was still available to her. Claimant agreed that except for the fact she resigned, \nshe could still be at respondent HMA as of the date of the hearing.  \n Claimant conceded that when Dr. Harp released her regarding her right shoulder, he did not \nimpose any work restrictions on her. She stated that she had not returned to treatment for her right \nshoulder since she was released in March 2016. The work restrictions imposed by Dr. Blankenship \nincluded limiting lifting overhead to twenty-five pounds, which would have probably been within her \njob duties as an RN. She did not know if respondent HMA could have accommodated the restriction \nof “no prolonged hyperextension or extension of the neck,” because she had resigned before receiving \nthat restriction and thus never presented it to respondent HMA.  \n\nForsgren-G305185 \n6 \n \n \n Claimant stated that she takes Ibuprofen as needed for her pain and returns yearly to get an \ninjection from Dr. Cannon.  While Dr. Blankenship indicated early in her treatment that it was possible \nfor  her  to  have  surgery  on  her neck,  claimant agreed  that  nothing  in  the  records  since  that  time  \nsuggested that she needed surgery.  \n Claimant testified in the ten years since she resigned from HMA, she had not looked for a job \nor filled out an employment application with anyone, nor had she attempted any job retraining.  She \nsaid she had no plans to ever return to work. Claimant says that she cooks meals, walks, mops, dusts \nand  vacuums  occasionally.    She  has  no  driving  restrictions  and  participates  in  the  care  of  her \ngrandchildren, who were all under thirteen years of age. She volunteers at her church and she and her \nhusband have traveled extensively since she resigned. \n On redirect examination, claimant said that she was not doing physical work while she was on \nvacation and had the ability to control when she rested. She did not have that same flexibility while \nshe was  working  at  the  hospital. Claimant  testified  that  her resignation  in  2014  was  not  due  to  her \ndesire to travel.  She accrued vacation time while working and that vacation time would have been \nenough for her to take the trips that she has taken since she resigned. \n Claimant said she had not chosen Dr. Harp as her physician and that he did not do anything \nto help her get a lighter duty job, but instead released her to full duty.  It was Dr. Blankenship that put \nthe restrictions on her that Dr. Harp failed to place upon her. She felt she had no option but to resign \nbecause Dr. Harp was not helping her. Claimant said she has permanent restrictions for her shoulder \nand her neck. Her daily activities are affected by not doing things as quickly as she used to. She believes \nhaving a regular job would aggravate her condition. \n On recross examination, claimant did not know what modifications she could have been given \nto accommodate her physical problems. She was unwilling to accept a position that was not going to \n\nForsgren-G305185 \n7 \n \n \nallow her to work as an RN.  \n I found claimant to be a credible witness and a good historian as to what had taken place in \nthis matter over the past dozen years.  \n \nREVIEW OF THE EXHIBITS \n \n While  the  parties  submitted  ample  medical  records,  a  detailed  review  of  them  would  be \nsuperfluous. Claimant ably described her course of treatment, including the timeline that I will outline \nin the adjudication section of this opinion. The permanent impairment ratings were not contested and \nhave already been paid.  \n \nADJUDICATION \n \n The Commission is charged with the duty of determining disability based on a consideration \nof medical evidence and other factors affecting wage loss, such as the claimant's age, education, and \nwork  experience.  Motivation,  postinjury  income,  credibility,  demeanor,  and  a  multitude  of  other \nfactors are matters to be considered in claims for wage-loss-disability benefits in excess of permanent-\nphysical impairment. Cooper v. Univ. of Ark. for Med. Scis., 2017 Ark. App. 58, 510 S.W.3d 304. \n As mentioned above, I find the timeline of claimant’s treatment to be relevant in weighing the \nevidence in this case.  \n1. She  was  first  treated  by Dr.  Harp for  a  right  shoulder  injury,  including  surgery on  June  18, \n2013.  \n2. Dr. Harp declined to give claimant an injection in her shoulder on October 21, 2023, releasing \nher claimant to full duty.  He repeated that release on December 18, 2023.  \n3. Despite that release, she continued being treated by Dr. Harp for the next year. On March 14, \n2024, he recorded that “the patient specifically requests that we proceed with an MRI on her \n\nForsgren-G305185 \n8 \n \n \nshoulder and cervical spine to evaluate for continued symptoms,” and he concurred such could \nbe useful.  \n4. At the June 13, 2014, visit, Dr. Harp noted that the request for cervical spine X-rays had not \nbeen authorized, and he again recommended such. This entry refers to claimant undergoing \ntherapy on her neck.  \n5. On November 10, 2014, the results of an MRI were discussed in Dr. Harp’s notes; there is a \nprotrusion on the right side at C4-5. He discussed with claimant a surgical referral, but issued \nher a note to return to work at full duty with no restrictions.  \n6. On December  1,  2014,  claimant  resigned her  employment,  citing  her  neck  and  right  arm \ninjuries. She stated that her request for job modification had been denied. \n7. On March 9, 2015, claimant began seeing Dr. Blankenship for her neck injury. She continues \nto treat with his clinic, seeing him, Dr. Cannon, or as in the most recent visit being April 29, \n2024, APRN  Rhonda  Findley. A  new  MRI  was  recommended  and  a  return  visit  to  Dr. \nBlankenship for  evaluation  was  mentioned. At  that  last  visit,  claimant stated  her  neck \ncondition was getting worse. \n  As I said above, I found claimant to be a credible witness, in large part because she testified \nto matters that did not help her case. She admitted that she has not looked for any kind of work since \nshe resigned from respondent in 2014. She convinced me that if she was not able to work as an RN, \nshe was not interested in another job within her physical limitations.  \n “Although a lack of interest in pursuing employment impedes the assessment of the claimant's \nloss of earning capacity, it is not a complete bar.”  Ark. DOT v. Abercrombie, 2019 Ark. App. 372. In \nher  post-trial  brief,  claimant requested a  wage  loss  disability  of  30%-40%. I  recognize “there  is  no \nexact formula for determining wage loss,” Hixon v. Baptist Health, 2010 Ark. App. 414. Had claimant \n\nForsgren-G305185 \n9 \n \n \ngone back to work at some type of employment and earned considerably less than she made as an RN \nat the time she resigned, I would have had a more precise measure for what her wage loss disability \nshould be.  However, I understand why she resigned when she did, given Dr. Harp’s release to full \nduty despite the disc protrusion in her neck that he was not treating. While her failure to seek other \nemployment in the years since demonstrates a lack of motivation to return to the workforce, that alone \ndoes  not  bar  claimant  from  receiving some  degree of  wage  loss  benefits.  After considering all  the \nfactors set forth in the first paragraph of this section of this opinion, I am satisfied that claimant has \nproven she has a wage loss disability of 15% above her physical impairment ratings.  \nORDER \n \n Claimant  has  met  her burden  of  proving  by  a  preponderance  of  the  evidence  that she  has \nsuffered a loss in wage earning capacity in an amount equal to 15% to the body as a whole. Respondent \nhas  controverted  claimant's  entitlement  to  payment  of  permanent  partial  disability  benefits  in  an \namount equal to 15% based upon this loss in wage earning capacity. \nPursuant to A.C.A. § 11-9-715(a)(1)(B), claimant's attorney is entitled to an attorney fee in the \namount of 25% of the compensation for indemnity benefits payable to the claimant. Thus, claimant's \nattorney is entitled to a 25% attorney fee based upon the indemnity benefits awarded. This fee is to \nbe paid one-half by the carrier and one-half by the claimant. \nRespondent is liable for payment of the court reporter's charges for preparation of the hearing \ntranscript in the amount of $ 637.45. \nAll sums herein accrued are payable in a lump sum and without discount. \n IT IS SO ORDERED. \n                                                                                              \n_______     \n JOSEPH C. SELF \nADMINISTRATIVE LAW JUDGE","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. G305185 CYNTHIA J. FORSGREN, EMPLOYEE CLAIMANT HEALTH MANAGEMENT ASSOCIATES INC., EMPLOYER RESPONDENT#1 LIBERTY MUTUAL GROUP, CARRIER RESPONDENT#1 DEATH & PERMANENT TOTAL DISABILITY TRUST FUND RESPONDENT#2 OPINION FILED SEPTEMBER 12, 2024 Hearing before ADM...","fetched_at":"2026-05-19T22:48:50.796Z","links":{"html":"/opinions/alj-G305185-2024-09-12","pdf":"https://labor.arkansas.gov/wp-content/uploads/FORSGREN_CYNTHIA_G305185_20240912.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}