{"id":"alj-G600552-2024-05-29","awcc_number":"G600552","decision_date":"2024-05-29","opinion_type":"alj","claimant_name":"Tammy Miller","employer_name":"Mhm Support Services","title":"MILLER VS. MHM SUPPORT SERVICES AWCC# G600552 MAY 29, 2024","outcome":"unknown","outcome_keywords":[],"injury_keywords":["hip","knee","lumbar","back"],"pdf_url":"https://www.labor.arkansas.gov/wp-content/uploads/MILLER_TAMMY_G600552_20240529.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"MILLER_TAMMY_G600552_20240529.pdf","text_length":24532,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO.  G600552 \n \nTAMMY L. MILLER, Employee                                                                       CLAIMANT \n \nMHM SUPPORT SERVICES, Employer                                             RESPONDENT  #1                         \n \nMERCY HEALTH, Carrier/TPA                                                            RESPONDENT #1 \n \nDEATH & PERMANENT TOTAL DISABILITY TRUST FUND             RESPONDENT #2 \n \n \n OPINION FILED MAY 29, 2024 \n \nHearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Springdale, \nWashington County, Arkansas. \n \nClaimant represented by EDDIE H. WALKER, JR., Attorney, Fort Smith, Arkansas. \n \nRespondent #1 represented by RANDY P. MURPHY, Attorney, Little Rock, Arkansas. \n \nRespondent #2 represented by DAVID L. PAKE, Attorney, Little Rock, Arkansas; \nalthough not present at hearing. \n \n \n STATEMENT OF THE CASE \n  \n On May 8, 2024, the above captioned claim came on for hearing at Springdale, \nArkansas.  A pre-hearing conference was conducted on September 27, 2023 and a pre-\nhearing  order  was filed  on  that  same  date.    A  copy  of  the  pre-hearing  order  has  been \nmarked as Commission’s Exhibit #1 and made a part of the record without objection.  In \naddition, respondent #1’s letter brief dated June 9, 2022 has been blue-blacked and made \na part of the record herein. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1.   The Arkansas Workers’ Compensation Commission has jurisdiction of the \nwithin claim. \n\nMiller – G600552 \n \n2 \n \n 2.    All prior opinions are final. \n At the pre-hearing conference the parties agreed to litigate the following issues: \n 1.    Claimant’s entitlement to permanent  and  total  disability  benefits,  or,  in  the \nalternative, additional wage loss disability. \n 2.   Attorney fee. \nThe  claimant  contends that  her  condition  has  objectively  and  permanently  \nworsened  since a prior  wage  loss  determination and  that  as  a  result  of  that  worsening \nshe is now permanently and totally disabled. In the alternative, she contends that she is \nentitled  to  wage  loss  disability  in  excess  of  what  has  previously  been  awarded.    The \nclaimant contends her attorney is entitled to an attorney’s fee on all disability benefits not \npreviously paid. \nRespondent  #1  contends that  claimant  is receiving  appropriate  benefits  for  her \ncompensable injury.  Respondents further contend that claimant is not permanently and \ntotally disabled.  Finally, respondent #1 contends that claimant is not entitled to additional \nwage loss disability benefits. \nRespondent #2 defers to the outcome of litigation on the issues of PTD and wage \nloss and waives its appearance at the hearing.  The Trust Fund has not controverted the \nclaim against it. \nFrom a review of the record as a whole, to include medical reports, documents, \nand other matters properly before the Commission, and having had an opportunity to hear \nthe testimony of the witness and to observe her demeanor, the following findings of fact \nand conclusions of law are made in accordance with A.C.A. §11-9-704: \n \n\nMiller – G600552 \n \n3 \n \n \n  FINDINGS OF FACT & CONCLUSIONS OF LAW \n \n 1.   The stipulations agreed to by the parties at a pre-hearing conference conducted \non September  27,  2023 and  contained  in  a  pre-hearing  order  filed that  same  date are \nhereby accepted as fact. \n 2.    Claimant has met her burden of proving by a preponderance of the evidence \nthat she has suffered a permanent physical impairment rating in an amount equal to 30% \nto the body as a whole for her compensable left hip injury. \n 3.   Claimant has met her burden of proving by a preponderance of the evidence \nthat she has suffered a permanent impairment in an amount equal to 5% to the body as \na whole as a result of her compensable pelvic floor dysfunction. \n 4.   Claimant has met her burden of proving by a preponderance of the evidence \nthat she is permanently totally disabled as a result of her compensable injury. \n 5.   Respondent  #1  has  controverted  claimant’s  entitlement  to  permanent  total \ndisability benefits.    \n \n          FACTUAL BACKGROUND \n Claimant is a 51-year-old woman who began working for respondent as an RN on \nMarch 30, 2015.  On January 22, 2016, she was running down a hallway to get a blood \nconsent form when her scissors fell out of her scrub pocket.  Claimant turned to see what \nhad fallen and when she did, she fell to the floor.  As a result of the fall, claimant had pain \nin her knee, hip, and left buttock.   \n Claimant has undergone extensive medical treatment since January 22, 2016, with \n\nMiller – G600552 \n \n4 \n \nmultiple  surgeries.    On  January  5,  2017,  Dr.  Blankenship  performed  a  lumbar  fusion \nprocedure  at  L4-5  and  L5-S1.    He  also  performed  a  revision  with  decompression  and \nposterior lateral fusion on September 13, 2017.  On December 26, 2017, Dr. Blankenship \nperformed a left SI joint fusion and on April 17, 2018, he performed a right SI joint fusion.   \n In addition, on March 7, 2018, Dr. Sites performed an IT band release; periformis \nrelease of the left hip; a greater trochanteric bursectomy of the left hip;  and debridement \nof the gluteus medius tendon with repair of the left hip.  Claimant’s final surgical procedure \nwas performed by Dr. Dougherty on December 21, 2018, which included a gluteus medius \nrepair; periformis resection; and psoas resection.   \n This claim has been the subject of multiple hearings.  Following a hearing on June \n12, 2019, this administrative law judge found, inter alia, that claimant had proven that she \nsuffered a compensable injury to her left hip, left knee, and low back on January 22, 2016.  \nI  also  found  that  claimant  had  failed  to  prove  that her  SI  joint  complaints  were  a \ncompensable consequence of her compensable injury. Claimant was awarded medical \ntreatment for her compensable injury and temporary total disability benefits from January \n23, 2016 through a date yet to be determined. \n That opinion was appealed by both parties and in an opinion filed June 4, 2020 the \nFull Commission affirmed the finding that claimant had proven a compensable injury to \nher left hip, left knee, and low back.  The Full Commission reversed the SI joint finding \nand  held  that claimant had  proven  that  her  SI  joint  complaints  were  related  to  her \ncompensable injury.   \n A  second  hearing  was  conducted  on  January  13,  2021.    In  addition  to  the \nstipulations from the first hearing, the parties also agreed to stipulate that claimant had \n\nMiller – G600552 \n \n5 \n \nreached maximum medical improvement on June 30, 2019, and that she sustained a 14% \nimpairment rating to the body as a whole as a result of the injuries to her back and SI \njoints.  Claimant contended that she was permanently totally disabled as a result of the \ncompensable  injury,  or  alternatively  entitled  to  wage  loss  in  excess  of  her  impairment \nrating.    In  an  opinion  filed  February  25,  2021,  this  administrative  law  judge  found  that \nclaimant was not permanently totally disabled, but instead had suffered a loss in wage \nearning capacity in an amount equal to 60% to the body as a whole.  That opinion was \nappealed  by  the  claimant  and  cross-appealed  by  respondent  #1.    In  an  opinion  filed \nAugust  26,  2021,  the  Full  Commission  affirmed  and  adopted  the  February  25,  2021 \nopinion. \n Subsequent  to  the  second  hearing claimant returned  to  Dr.  Dougherty  for \nincreased pain in her left hip. Dr. Dougherty diagnosed claimant as suffering from pelvic \nfloor dysfunction which had not been addressed but was directly related to her prior injury \nand need for surgery.  He prescribed physical therapy for this condition.  In a report dated \nDecember  6,  2021,  Dr.  Dougherty  also  diagnosed  claimant  as  suffering  from  gluteal \ntendinitis of the left hip and noted that her exam was consistent with a partial thickness \ngluteus tear.  In a report dated January 19, 2022, Dr. Dougherty indicated that claimant \nneeded a diagnostic hip arthroscopy for a possible gluteus repair.  Prior to that procedure, \nhe noted  that claimant’s  lab  results  had been  reviewed and  that  her  ANA  was  positive \nand her vitamin D level was low.  He recommended that claimant see her primary care \nphysician to get those results under control before surgery could proceed.  On March 2, \n2022, Dr. Dougherty completed a work note indicating that claimant should be off work \nindefinitely beginning on November 3, 2022.   \n\nMiller – G600552 \n \n6 \n \n A third hearing was conducted on June 29, 2022 on the issue of whether claimant \nwas entitled to additional temporary total disability benefits beginning November 3, 2021 \nand continuing through a date yet to be determined.  In an opinion filed June 29, 2022, \nthis administrative law judge found that claimant was entitled to the requested temporary \ntotal disability benefits.  That opinion was not appealed. \n Since the time of the last hearing on June 29, 2022, claimant has continued to treat \nwith Dr. Mary Daut, who prescribes medication for chronic pain.  She also receives some \nmedication  from  her  primary  care  physician,  Dr.  DeClerk.    Claimant  did  not  undergo \nsurgery by Dr. Dougherty on her left hip, but continued under his care.  On February 13, \n2023,  Dr.  Dougherty  indicated  that  physical  therapy  had  helped  claimant’s  condition  a \nlittle but she continued to have hip pain.  He diagnosed her condition as complex regional \npain syndrome of the left lower limb; osteoarthritis of the left hip; and pain in the left hip.  \nHe also ordered a bone scan of the left hip to better assess her condition. \n Claimant returned to Dr. Dougherty on April 24, 2023, after the bone scan and he \nnoted that the scan was unremarkable with respect to her hip.  He also confirmed this \nduring his deposition testimony. \n Claimant’s last visit with Dr. Dougherty occurred on July 12, 2023, at which time \nhe noted that her symptoms had not improved since her last visit.  He also stated that she \nhad reached maximum medical improvement; that she had significant limitations in lifting  \nand ambulation; and assigned her an impairment rating in an amount equal to 30% to the \nbody as a whole for her hip. \n Claimant has filed this claim contending that she is permanently totally disabled, \nor alternatively entitled  to additional wage loss benefits. \n\nMiller – G600552 \n \n7 \n \n \nADJUDICATION \n Claimant contends that she is now permanently totally disabled as a result of her \nwork-related  injury.    Permanent  total  disability  is  defined  by  A.C.A.  §11-9-519(e)(1)  as \n“inability, because of compensable injury or occupational disease, to earn any meaningful \nwages  in  the  same  or  other  employment.”  Claimant  has  the  burden  of  proving  by  a \npreponderance of the evidence they are unable to earn any meaningful wage in the same \nor other employment.  A.C.A. §11-9-519(e)(2). \n After reviewing the evidence in this case impartially, without giving the benefit of \nthe doubt to either party, I find that claimant has proven by preponderance of the evidence \nthat she is permanently totally disabled as a result of her compensable injury. \n At the second hearing in this claim the parties stipulated that claimant had a 14% \nimpairment rating to the body as a whole as a result of the injuries to her back and SI \njoints.    It  was  determined  that  claimant  had  failed  to  prove  that  she  was  permanently \ntotally disabled, but instead that she had suffered a loss in wage earning capacity in an \namount equal to 60% to the body as a whole.  This finding was affirmed and adopted by \nthe Full Commission in an opinion filed August 26, 2021.   \n Since  that  second  hearing  the  claimant  returned  to  Dr.  Dougherty  for  additional \nmedical  treatment  for  increased  hip  pain.    Dr.  Dougherty  testified  that  claimant  suffers \nfrom Greater Trochanteric Pain Syndrome in her left hip. \n \n  Q Okay.  All right.  What is your diagnosis of Ms. \n  Miller’s condition now? \n \n  A She has what’s called Greater Trochanteric \n\nMiller – G600552 \n \n8 \n \n  Pain Syndrome. \n \n  Q Okay. Tell me what that is. \n \n  A It’s just chronic pain about the hip.  It’s not really \n  trochanteric bursitis as an isolated entity.  So when you \n  tear tendons, when you sew them back down, they can \n  develop what’s called neovascularization, which can \n  cause continued pain when there’s an increased sub- \n  stance P, which is associated with pain that comes from \n  the repair site. \n \n \n In  his  report  dated  July  12,  2023,  Dr.  Dougherty  stated  that  claimant  had  an \nimpairment rating of 30% to the body as a whole for her hip injury.  He confirmed this 30% \nrating during his deposition testimony and indicated that the rating was based on the AMA \nGuides, Fourth Edition.   \n Respondent  contends  that  the  30%  rating  is  based  on  subjective  factors,  not \nobjective  findings  as  required  by  A.C.A.  §11-9-102(16).    However,  according  to  Dr. \nDougherty’s  testimony,  the  tendon  inflammation  in  claimant’s  left  hip  is  confirmed  by \nobjective findings and imaging studies.  There is no requirement that medical testimony \nbe based solely on objective findings, only that the record contains supporting objective \nfindings.   Ark.  Dep’t.  of  Corr. v.  Washington,  2024  Ark.  App.  181,  685    S.W.  3d  347; \nSingleton v. City of Pine Bluff, 97 Ark. App. 59, 244 S.W. 3d 709 (2006).   \n Therefore, I find that the 30% impairment rating assigned by Dr. Dougherty is a \nvalid  rating.  This  rating  is  a  new  rating  assigned  after  the  last  hearing  on  claimant’s \nentitlement to wage loss.  Thus, in addition to the 14% impairment rating to the body as \na  whole  previously  assigned  to  claimant  for  her  back  injury, she  also  has  a  30% \nimpairment rating to the body as a whole for her left hip.   \n\nMiller – G600552 \n \n9 \n \n Claimant also contends that she is entitled to an impairment rating for her pelvic \nfloor dysfunction.  Dr. Dougherty described this dysfunction as follows: \n \nA So any time you have an injury about the hip, the \nmuscles that connect to the hip are actually very close to \nthe pelvic floor.  What we know through research and \npublished studies is, if you have hip pain, you can develop \npelvic floor dysfunction. \n \n So what that means is problems with urination, bladder \nretention, posture, simple things like that.  And so any time \nthat we do hip scopes now, we start - - we started recommend- \ning people do pelvic floor exercises. \n \nQ And did those exercises correct Ms. Miller’s problem, \nor does she still have a problem with control of her bladder? \n \nA She occasionally still has a struggle with it. \n \nQ She has testified in a deposition that she cannot control \nher bladder, and that she sometimes has issues with urgency, \nand she can’t get to the bathroom quick enough.  Is that \nconsistent with what you would expect, based upon your \nmedication evaluation? \n \nA Yes.  She - - the chronic pain leads to the chronic pelvic \nfloor dysfunction. \n \n \n Dr. Dougherty indicated at his deposition that he would not know how to calculate \nan  impairment  rating  for  pelvic  floor  dysfunction.    At  the  hearing,  claimant’s  counsel \nreferred  to  pages  149 and  254  of  the AMA  Guides,  Fourth  Edition,  as  appropriate  for \nconsideration in assessing an impairment rating.  The Commission may assess its own \nimpairment rating rather than rely solely on the determination of a rating assigned by a \nphysician.  Carrick v. Baptist Health, 2022 Ark. App. 134, 643 S.W. 3d 466.  In this case, \nI find that Table 17 on page 149 of the AMA Guides is appropriate as it deals with bladder \n\nMiller – G600552 \n \n10 \n \ndysfunction resulting from spinal cord and central nervous system disorders.  The table \nassigns  a  1-9  percent  to  the  body  as  a  whole  for  a  patient  that  has  some  degree  of \nvoluntary  control  but  is  impaired  by  urgency  or  intermittent  incontinence.    Claimant \ntestified that the more hip pain she has, the harder it is to control her bladder.  She testified \nthat she has bladder leakage and sometimes feels as if she needs to go to the bathroom \nwhen  she  doesn’t.    Dr.  Dougherty  confirmed  that  claimant  occasionally  struggles  with \ncontrol of her bladder. \n Based upon the foregoing evidence, I find that claimant is entitled to an impairment \nrating in an amount equal to 5% to the body as a whole for her bladder dysfunction.   \n As previously noted, it was determined that claimant had suffered a 60% loss in \nwage earning capacity following the second hearing in this claim.  After my review of the \nrelevant wage loss factors, I find that due to her increased impairment ratings as well as \nother relevant wage loss factors, that claimant is now permanently totally disabled as a \nresult of her compensable injury.  In considering claims for permanent disability in excess \nof  the  percentage  of  permanent  physical  impairment,  the  Commission  may  take  into \naccount  in  addition  to  the  percentage  of  permanent  physical  impairment  other  factors \nsuch  as  the  employee’s  age,  education,  work  experience,  and  all  other  matters \nreasonably expected to effect her future earning capacity.  A.C.A. §11-9-522(b)(1).  Here, \nclaimant is 51 years old.  She has an associate’s degree in nursing and has a varied work \nhistory.    From  2000  through  2003  claimant  worked  for  PeoplePlus  as  the  regional \ncoordinator   for   the   State   of   Alabama.      She   testified   that   PeoplePlus   staffed \ndemonstrations at Walmarts and merchandising events.  Thereafter, from 2003 to 2006 \nthe claimant worked as a senior account representative for J.B. Hunt.  Claimant previously \n\nMiller – G600552 \n \n11 \n \ntestified  that  this  job  required  her  to  be  on  the  phone,  sitting  at  a  desk  and  using  a \ncomputer.  Subsequent to J.B. Hunt the claimant sold toner and ink with her sister.  She \ntestified that she primarily worked on the phone from her home and used a computer in \nthe performance of that job which she did for almost three years.  Claimant was employed \nby Motorola from 2009 through 2013.  Claimant testified that she worked in the receiving \ndepartment which would receive approximately 5000 units a week and was in charge of \ngetting those units checked in and making sure proper paperwork was performed for each \nunit  and  getting  the  unit  to  a  technician  for  repair.    These  units  were  devices  such  as \nhandheld devices with scanners used at Walmart. \n After Motorola,  the  claimant  worked  as  a parttime  mechanic  with  her  husband \nplacing  skirts  underneath  trailers  to  make  them  more  aerodynamic.    She  also  testified \nthat she could change a truck tire, change a trailer tire, and perform oil changes.  It was \nduring  this  time  that claimant obtained  her  nursing  degree  and  began  working  for \nrespondent as a floor nurse. \n Much of this history regarding claimant’s prior work history was given by claimant \nat the January 13, 2021 hearing and confirmed at the most recent hearing. \n At  the  time  of  the  January  13,  2021  hearing  claimant  had  also  undergone  a \nfunctional capacities evaluation which revealed full levels of physical effort on claimant’s \nbehalf.  That evaluation determined that claimant was capable of performing work in the \nsedentary  classification  of  work.    All  of  these  factors  were  considered  in  assigning \nclaimant  a  loss  in  wage  earning  capacity in an  amount  equal  to  60%  to the  body  as  a \nwhole. \n Since that time, claimant has continued to have increased pain in her left hip.  This \n\nMiller – G600552 \n \n12 \n \nhas  resulted  in  additional  medical treatment from  Dr.  Dougherty  and  continued  pain \nmedication from Dr. Daut. \n At  his  deposition,  Dr.  Dougherty  indicated  that  claimant  should  not  perform  any \nheavy lifting and no pushing or pulling over 10 pounds.  He indicated that claimant would \nonly  be  capable  of  performing  seated  work.    He  further  noted  that  claimant’s  main \nlimitation was chronic pain in her hip and that increased activity caused additional pain.  \nHe testified that claimant could not sit or stand for prolonged periods of time and that if \nshe were to engage in some work activities she would have to be in a position that would \nallow her  to  alternative  between  sitting  and  standing  at  will.    Specifically,  in his  report \ndated July 12, 2023, Dr. Dougherty stated: \n   \n  Is in fact at MMI.  She has significant limitations in \n  lifting, ambulation and she is  unable to perform any \n  of her prior work capacity and I feel she is unable to \n  work gainfully due to these limitations.  (Emphasis \n  added.) \n \n \n Claimant testified that she currently suffers from burning pain on the top of her left \nthigh; pain in her left hip; groin pain; pelvic pain; pain in her low back; and pain in her right \nbuttock  that  radiates  into  her  right  foot.    In  addition,  with  respect  to  the  pelvic  floor \ndysfunction,  she  testified  that  she  frequently  has  bladder  leakage  and  that  she  has \nfeelings as if she needs to go to the bathroom but is unable to do so.  Because of this \nleakage, claimant is required to wear a diaper or pad on a daily basis.   \n In addition, as a result of the pain and her bladder dysfunction she testified that \nshe  has  difficulty  falling  asleep  and  staying  asleep  due  to  not  being  able  to  get \ncomfortable.  She also testified that she only sleeps two or three hours before waking due \n\nMiller – G600552 \n \n13 \n \nto pain or feeling as if she has to go to the bathroom. \n Finally, as previously noted, claimant has a 14% impairment rating to her low back \nand SI joints as a result of her compensable injury in addition to a 30% impairment rating \nto the body as a whole for her left hip injury and a 5% impairment rating to the body as a \nwhole for her pelvic floor dysfunction. \n After consideration of all of the relevant wage loss factors in this case, I find that \nclaimant has met her burden of proving by a preponderance of the evidence that she is \npermanently totally disabled.  Although the claimant might be able to perform some limited \nsedentary work, I find that claimant has proven that she is unable to earn any meaningful \nwages in the same employment she previously performed or any other employment. \n Finally,  with  respect  to  this  issue,  I  note  that  even  if  claimant  did  not  have  a \npermanent physical  impairment  attributable  to  her  pelvic  floor  dysfunction,  claimant \nnevertheless does suffer from the symptoms of pelvic floor dysfunction and based on the \ntotality  of  the  relevant  wage  loss  factors,  I  would  nonetheless  find  that  claimant  is \npermanently totally disabled even if she did not have a 5% impairment rating to the body \nas a whole as a result of the pelvic floor dysfunction. \n \nAWARD \n Claimant has met her burden of proving by a preponderance of the evidence that \nshe has suffered a permanent physical impairment in an amount equal to 30% to the body \nas a whole for her left hip and 5% to the body as a whole for her pelvic floor dysfunction.  \nClaimant has also proven by a preponderance of the evidence that she is permanently \ntotally disabled as a result of her compensable injury. \n\nMiller – G600552 \n \n14 \n \n Respondent #1 has controverted claimant’s entitlement to all benefits in excess of \nthose  previously  accepted  or  paid.    Respondent  #2  has  not  controverted  claimant’s \nentitlement to compensation benefits and is therefore not liable for payment of an attorney \nfee.  However, respondent #2 is to withhold claimant’s portion of the attorney fee from \nbenefits it will pay claimant at the appropriate time in the future. \n Respondent #1  is  responsible  for  payment  of  the  court  reporter’s  charges  for \npreparation of the hearing transcript in the amount of $606.00. \n All sums herein accrued are payable in a lump sum and without discount. \n IT IS SO ORDERED. \n \n     ______________________________________ \n  GREGORY K. STEWART \n                                                             ADMINISTRATIVE LAW JUDGE","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. G600552 TAMMY L. MILLER, Employee CLAIMANT MHM SUPPORT SERVICES, Employer RESPONDENT #1 MERCY HEALTH, Carrier/TPA RESPONDENT #1 DEATH & PERMANENT TOTAL DISABILITY TRUST FUND RESPONDENT #2 OPINION FILED MAY 29, 2024 Hearing before ADMINISTRATIVE LAW JUDGE GR...","fetched_at":"2026-05-19T22:54:52.003Z","links":{"html":"/opinions/alj-G600552-2024-05-29","pdf":"https://www.labor.arkansas.gov/wp-content/uploads/MILLER_TAMMY_G600552_20240529.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}