{"id":"alj-G708582-2023-11-17","awcc_number":"G708582","decision_date":"2023-11-17","opinion_type":"alj","claimant_name":"Linda Bradley","employer_name":"Pine Bluff School District","title":"BRADLEY VS. PINE BLUFF SCHOOL DISTRICT AWCC# G708582 NOVEMBER 17, 2023","outcome":"dismissed","outcome_keywords":["dismissed:1","granted:1","denied:1"],"injury_keywords":["neck","shoulder","ankle","cervical","rotator cuff","back","lumbar"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads//BRADLEY_LINDA_G708582_20231117.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"BRADLEY_LINDA_G708582_20231117.pdf","text_length":32137,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nAWCC FILE No G708582 \n \nLINDA K. BRADLEY, EMPLOYEE       CLAIMANT \n \nPINE BLUFF SCHOOL DISTRICT, EMPLOYER             RESPONDENT No 1 \n \nAR SCHOOL BOARDS ASSOC.-WCT, CARRIER/TPA                RESPONDENT No 1 \n \nDEATH & PERMANENT TOTAL DISABILITY \nTRUST FUND                 RESPONDENT No 2  \n \n \n \nOPINION FILED 17 NOVEMBER 2023 \n \n \nHeard before Arkansas Workers’ Compensation Commission (AWCC) Administrative  Law \nJudge JayO. Howe on 10 August 2023 in Pine Bluff, Jefferson County, Arkansas. \n \nMs. Laura Beth York, Attorney-at-Law in Little Rock, Arkansas, appeared for the claimant. \n \nMs.  Melissa  Wood, Attorney-at-Law  in  Little  Rock,  Arkansas,  appeared  for  Respondent \nNo 1. \n \nMr. David L. Pake, Attorney-at-Law in Little Rock, Arkansas, waived appearing on behalf of \nRespondent No 2. \n \nI.  STATEMENT OF THE CASE \n \nThe above-captioned case was heard on 10 August 2023 in Pine Bluff, Arkansas, after \nthe parties participated in a prehearing telephone conference on 18 April 2023. A Prehearing \nOrder, admitted to the record without objection as Commission’s Exhibit No 1, was entered \non the same day. The Order stated that the ISSUES TO BE LITIGATED were the claimant’s \nentitlement to permanent total disability or wage-loss disability benefits. All other ISSUES \nwere reserved. \nThe Prehearing Order set forth the following STIPULATIONS: \n1.  The AWCC has jurisdiction over this claim. \n\nL. BRADLEY- G708582  \n2 \n \n2.  An employee/employer/carrier relationship existed between the parties on 4 December \n2017, when the claimant sustained compensable injuries to her neck and right shoulder. \n \n3.  Claimant’s average weekly wage (AWW) was $416.37, which entitled her to temporary \ntotal disability and permanent partial disability benefits at a rate of $278/$209 per week, \nrespectively. \n \nThe claimant was the sole WITNESS providing testimony at the hearing. \nThe parties’ CONTENTIONS, as set forth in their prehearing questionnaire responses, \nwere incorporated by reference into the Prehearing Order and were as follows: \nThe  claimant  CONTENTDS that she  is  permanently  and  totally  disabled  or,  in  the \nalternative, that she has wage-loss as a result of the 4 December 2017 work injury and that \nher attorney is entitled to an attorney’s fee.  \nRespondent No 1 CONTENDS that all appropriate benefits have been paid with regard to \nthe claimant’s compensable injuries sustained on 4 December 2017. Further, the four percent \n(4%)  impairment  rating  assigned  by  Dr.  Pearce  was  accepted  and  paid. No  additional \ntreatment  has  been  recommended for the claimant’s neck injury. Dr. Pearce released the \nclaimant to full duty. Lastly, the claimant is not entitled to permanent disability benefits in \nexcess of the four percent (4%) rating. \nRespondent No 2 CONTENDS that it  defers  to  litigation  on  the  issue  of  the  extent  of \ndisability. It intends to waive its attendance if it is in agreement with Respondent No 1’s \ncontentions.\n1\n \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \nHaving  reviewed  the  record  as  a  whole  and  having  heard  testimony  from  the  witness, \nobserving her demeanor, I make the following findings of fact and conclusions of law under \nACA § 11-9-704: \n1. The AWCC has jurisdiction over this claim. \n \n \n1\n As noted above, Respondent No 2 waived its appearance, as reflected in its statement on Contentions. \n\nL. BRADLEY- G708582  \n3 \n \n2. The stipulations offered by the parties are accepted as fact. \n \n3. The  claimant failed  to  establish, by  a  preponderance  of  the  evidence, that she  is \nentitled to the additional benefits sought in connection with her compensable injuries. \n \n4.  Accordingly, this claim is dismissed. \n \nIII.  HEARING TESTIMONY and MEDICAL EVIDENCE    \nA. Claimant on Direct-Examination  \nClaimant, Linda  Bradley, is  a sixty-two-year-old female with a bachelor’s degree in \npsychology.  She worked  briefly  under  a  cosmetology  license while  earning  her  degree. Ms. \nBradley also earned a certificate in secretarial word processing around 1990. [TR at 9-11.] \nHer  past  employment  includes  stints  with  the  Census  Bureau  as  a  form  editing  clerk  and \nworking as a program operations assistant at the Pine Bluff Convention Center. [TR at 12.] \nShe worked for a period of time as a para-professional with the local school district \nbefore taking a break from employment to help with family matters. She then began working \nas a correctional officer for the Arkansas Department of Corrections in the mid- to late-90s. \nThat work consisted of a broad array of duties, from booking new detainees to supervising \ninmate’s daily routines. [TR at 13-14.] At some point in that job, she injured her ankle during \nthe course of her employment. Ms. Bradley made a workers’ compensation claim related to \nthat injury and received some benefits, including medical treatment. She explained that her \nankle injury left her with some permanent restrictions in the correctional officer’s role and \nthat she ultimately left that job. [TR at 16.] \nThe claimant then began working as an administrative assistant at Kids First in Pine \nBluff. Ms. Bradley continued in that role for some time before beginning work around 2016 \nfor the respondent-employer, Pine Bluff School District, where she was a para-professional \nassisting disabled students. [TR at 17-18.] She was primarily assigned to a one-on-one role \nwith  a  student  whom  she  assisted  throughout  the  day.  The  claimant  also  assisted  with \n\nL. BRADLEY- G708582  \n4 \n \nanother student in the same classroom at different times during the day. [TR at 19.] She was \nassisting the second student when she was injured. \nOn 4 December 2017, the claimant was outside with the second child, waiting on her \nprimary  student  to  arrive,  when  he  suddenly  ran  into  the  building  unaccompanied.  Ms. \nBradley went after him and tripped as she was entering the building. [TR at 19.] She fell on \nor  toward  her  right  side,  injuring  her  right  arm  and  neck. [TR  at  20.] The  respondents \naccepted her claim as compensable, and she sought treatment. After an MRI revealed a tear \nor tears in her right shoulder, Dr. Gordon performed surgery on 19 April 2018. [TR at 21.] \nAccording to the claimant, the surgery did not improve her pain. \nMs. Bradley said that Dr. Gordon discussed another potential surgical procedure with \nher and suspected adhesive capsulitis, but she did not want another operation. [TR at 22.] \nShe  then  sought  another  opinion  from  Dr.  Reynolds,  who  ordered  an  MRI  of  her  cervical \nspine. That scan revealed some remarkable findings, and she was referred to Dr. McCarthy, \na  spine  specialist,  for  further  evaluation. [TR  at  23.] Dr.  McCarthy  did  not  feel  surgical \nintervention was appropriate, so she returned to Dr. Gordon, who performed a right-shoulder \naspiration in April of 2019. According to the claimant, that procedure did not provide relief \nfor her shoulder pain. [TR at 24.] \nThe claimant did not recall Dr. Gordon then referring her for pain management, but \nremembered seeing Dr. Ahmadi at UAMS after obtaining a Change of Physician order. Ms. \nBradley  confirmed  that  the  medical  records  reflected  Dr.  Ahmadi  recommending  an \narthroscopic  debridement  procedure  at the  end  of  September  of  2020  and  that  she  was \nhesitant to agree to another surgery. Id. When asked why, she responded, “The first surgery \ndidn’t help at all. It hurt, so I was cautious and I just was iffy about it. I don’t know. It wasn’t \ngoing to help me, that’s what my mind was telling me if, you know, you [are] dealing with \nthis pain, what if that pain is worse [after surgery].” [TR at 24-25.] \n\nL. BRADLEY- G708582  \n5 \n \nAfter Dr. Ahmadi left UAMS, the claimant followed up with Dr. Pearce, who ordered \nanother MRI in July of 2021. She stated that she didn’t recall Dr. Pearce discussing the MRI \nfindings or surgery with her, but that he released her from care. Dr. Pearce assessed a four \npercent (4%) impairment rating to the body as a whole. When he released her in 2022, she \ndid not feel that any of the treatment she received improved her condition. [TR at 25-26.] \nFollowing Dr. Pearce’s release, Ms. Bradley sought care from her PCP, Dr. Firmatura, \nwho “wrote a letter that [she was] permanently disabled as a result of that rotator cuff tear.” \nDr. Firmatura ordered nerve block treatment and referred her to Pain Treatment Centers of \nAmerica. [TR at 26.] She received some temporary pain relief, “but it went back to hurting.” \n[TR  at  27.]  The  claimant  testified  that  because  of  the  injury,  she  was  prescribed \nHydrocodone, Tizanidine, and Gabapentin.  She takes Hydrocodone and Tizanidine on a daily \nbasis, but does not take the Gabapentin “’cause it doesn’t help.” Id. According to the claimant, \nshe takes the medication about three (3) times a day and it can make her feel “drowsy, sleepy, \ndisoriented.” [TR at 28.]  \nMs. Bradley said that she returned to the respondent’s employment in a different job. \nThey “had me to do secretarial things, which hurt. Is – I  was,  like,  updating  schedules  or \nupdating process of special needs children coming tin to that program and every day it was, \nlike, typing; so it was a bunch of typing; so.” [TR at 29.] She indicated that being in a seated \nposition to type hurt her shoulder, and said that she could not perform her duties for eight \n(8) hours per day. [TR at 30.] The claimant testified that she was put back into a classroom \nwhere she graded papers, moved boxes, filed papers, and helped students; but she also had \nto intervene if children began fighting. Id. \nContinuing  her  testimony,  the  claimant  stated  that  after  helping  to  stop  one  fight \namongst students, her pain became worse. She was then asked, “what happened with your \nemployment?” and answered, “[m]y doctor took me off from work, because I was still hurting \n\nL. BRADLEY- G708582  \n6 \n \nand they fired me.” [TR at 34.] Ms. Bradley appealed her termination via a letter to the school \ndistrict. Id. As for her plans for returning to work, she said: \nFor me to heal, to get well, and to be able to, maybe, return, because I \ndidn’t know – I didn’t know that the – you know, I would still be hurting. So to \nme, that was unfair, because I had plans to go back to work, if I could, if the \nhealing process was feasible that I could, actually do what I needed to do at my \njob. I don’t want to be there and couldn’t do what I needed to do.  [TR at 35.] \n  \n The claimant testified that at some point after her termination, she applied for and \nwas approved for Social Security Disability. [TR at 36.] She did not believe that any of the \nconditions listed in her application previously prevented her from working. She was “almost \nsure” that she listed the rotator cuff injury, but  told  them  that  was  the  reason  for  her \napplication. The claimant previously applied for and was denied for Social Security Disability \nwhen she injured her ankle working for the Department of Correction. [TR at 39.] She stated \nthat  her  ankle  still  gives  her  trouble,  but  that  she  did  not  list  that  on  her  most  recent \napplication. When asked, “[d]o you think there’s any type of employment that you could do?” \nshe answered, “I don’t know. I don’t think so. Something that doesn’t require my right arm \nor ankle.” Id.  \n Reviewing again with counsel the jobs she’d worked in the past, the claimant stated \nthat she could not perform again in any of those jobs. [TR at 40-41.] Ms. Bradley said that \nher daily life activities have also been impacted by her pain. [TR at 42.] Her adult son and \ndaughter help her around the house. The claimant stated that she loves to read but cannot \nread like she used to, “[b]ecause I like cuddling with a book on my right side, but it’s so \npainful, I can’t.” [TR at 45.] She described her pain on the day of the hearing at eight (8) to \nnine (9) on a scale of one (1) to ten (10). [TR at 46.] \n B.  Claimant on Cross-Examination and Redirect \n Ms.  Bradley  began  her  cross-examination  by  disagreeing  to  some  extent  with  her \ndeposition  testimony  about  the  physicality  of  her  job  with  the  Department  of  Corrections, \n\nL. BRADLEY- G708582  \n7 \n \nwhich she had earlier described as “kind of” physical. She agreed that she described the job \nas “very physical” at the hearing. [TR  at  47.] As for  the difference  in  her descriptions,  she \noffered “I don’t know why I said that [referring to the deposition testimony]. Maybe I was \nscared.” [TR at 48.]  \n The claimant went on to agree that her treatment, except for with her family doctor \nand Pain Treatment Centers, was paid for through workers’ compensation. [TR at 50.] She \nstated that she began receiving Social Security Disability around April of 2021. Ms. Bradley \ntestified that she was working as a classroom para-professional at the end of the 2018 to 2019 \nschool year when she says her family doctor took her off work. [TR at 51-52.] She agreed that \nshe was terminated because her employer needed to fill the position that she could not work \nin. \n The  claimant  recalled  being  asked  at  her  deposition  whether  she  had  any \nphysician-ordered restrictions. Her response was, “[n]o, I don’t know. I haven’t asked. I just \nknow I am restricting myself, because it hurts to do it.” [TR at 52.] Ms. Bradley answered \nsome questions about past providers and agreed with a medical note showing that Dr. Pearce \noffered  and  she  declined  physical  therapy. [TR  at  54.] She  explained  that  past  physical \ntherapy had hurt and agreed that was the same time that she was released to regular work \nduties without restrictions. \n Ms. Bradley concluded her testimony on cross examination saying that she tries to go \nto the gym once or twice a week, but that she cannot do anything with her arm when she’s \nthere. [TR at 56.] \n During a brief redirect, the claimant stated that she began seeing Dr. Firmatura in \n2021, that he saw her for a number of conditions, and that he wrote a letter referring her to \npain management. [TR at 57-58.] She explained that a liver condition kept her from taking \npain medication for some time, but that the condition resolved, which allowed her to begin \n\nL. BRADLEY- G708582  \n8 \n \ntaking pain medication again. Ms. Bradley went on to state that even lifting a can of soup \nwith  her  right  arm  hurts  and  that  such  a  physical  restriction  is  a  result  of  the  workplace \naccident. [TR at 60.]  \nC.  Medical Evidence \nMs. Bradley sought some treatment for her shoulder injury before presenting on 19 \nApril 2018 for arthroscopic repair of her right rotator cuff tear with Dr. Gordon.\n2\n  See, [Cl. \nEx. No 1 at 31-41.] Use of her right arm was restricted and a return to work date of 2 May \n2018  was  authorized. [Id.  at  42.] She  followed up  in  clinic  on  1  May  2018, when  she  was \nordered to start physical therapy and continued off work until her pain was better controlled. \n[Id. at 43.] The claimant was next seen by Dr. Gordon on 29 May 2018, when his clinic note \nordered continued physical  therapy  and work restrictions of  no lifting,  pushing,  or  pulling \nover 5 pounds and no overhead use. He also provided a work letter limiting use of her right \narm until re-evaluating on 27 June 2018. [Id. at 47-49.] \nAt  her visit  in  the  end  of  June,  Dr.  Gordon  noted  slow  improvement  and  that  the \nclaimant  was  not  working  over  the  summer.  He  delayed  continuing  physical  therapy \nfor two-and-a-half weeks due to her complaints of pain. [Id. at 50.] Ms. Bradley next saw Dr. \nGordon on 1 August 2018, and he ordered an MRI because of her continued pain, stiffness, \nand weakness. [Id. at 55.] They reviewed the imaging on 7 August 2018, which revealed the \nrepair  to  be  structurally  intact.  Dr.  Gordon  suspected  her  pain  could  be  associated  with \nadhesive  capsulitis.  He  encouraged  continued  therapy  and  stretching and  a  follow-up  in \nanother month. [Id. at 57-58.]  \nThe  claimant  saw  Dr.  Gordon  again  on  5  September  2018,  when  she  continued  to \nreport pain and limited motion. She was reluctant to consider additional intervention, so Dr. \n \n2\n The OrthoArkansas website shows that Dr. Eric  Gordon is an  orthopaedic surgeon specializing in \nsports medicine, knees, and shoulders. \n\nL. BRADLEY- G708582  \n9 \n \nGordon referred her to Dr. Reynolds for another opinion. [Id. at 62.] Dr. Reynolds assessed \npossible postoperative adhesive capsulitis and cervical radiculopathy and recommended an \nMRI of the cervical spine to evaluate for radiculopathy. [Id at 67.] His review of the cervical \nMRI noted some degenerative changes and recommended further evaluation of the cervical \nspine, but did not recommend any further surgery for her right shoulder. [Id. at 73-74.] \nDr.  Kathryn  McCarthy next  saw  the  claimant on  23  October  2018 and  assessed  no \nintervention for the cervical MRI findings and did not correlate the claimant’s shoulder pain \nto the MRI findings. She noted that the “rotator cuff repair in her right shoulder has healed \nbased on MRI findings” and deferred to Dr. Gordon for further management. [Id. at 78.] \nMs. Bradley saw Dr. Gordon again on 23 January 2019. At nine (9) months out from \nsurgery, he noted her progress had been slow. He believed she would benefit from additional \nphysical therapy and suggested placing her at MMI if she did not make progress in the next \nsix  weeks. [Id.  at  80.] He  saw  her  again  on 6  March  2019.  They  discussed  that  additional \ninterventions beyond symptom management included diagnostic arthroscopy and aspiration \nto further evaluate for an infection, although the MRI did not show signs of an infection. She \ndid not wish to proceed surgically, but would consider the aspiration procedure. Regular work \nduties were to continue. [Id. at 84-85.] The aspiration was performed on 12 April 2019. [Id. \nat 88.] Dr. Gordon saw her again on 21 May 2019. She reported little change in her pain. The \nlab  results  from  the  aspiration  showed  no  signs  of infection.  Dr.  Gordon  recommended \nadditional physical therapy to improve her limited shoulder motion, but stated that he was \nnot sure what else to offer her at the time. [Id. at 92-93.] He returned her to regular work \nduty. \nThe claimant presented to Dr. Gordon’s office again on 2 July 2019 with complaints of \nongoing pain and limited motion. He noted: \n\nL. BRADLEY- G708582  \n10 \n \nI discussed with her that I am not certain what else can be done to help \nher symptoms. She has had adequate time to recover from her prior surgery. \nPostoperative   MRI   showed   her   repair   healing   appropriately.   We   saw \nadditional opinion  with  Dr.  Reynolds  and  even  worked  up  her cervical  spine \nwith  DR.  McCarthy,  that  did  not  really  give  a  cause  for  her  persistent  pain \nsymptoms. She is frustrated by this but I believe we have done about all I can \ndo for her. Discussed possible referral for evaluation by Dr. Paulus or Cayme \nas Physical Medicine and Rehabilitation specialists since things seemed to be \nstructurally  intact. Unfortunately there is  no  further  surgical  intervention  I \ncould confidently offer to provide pain relief. Follow up with me as needed.  [Id. \nat 99.]  \n \nHe provided a note returning her to regular duty work and for follow up with PMR. \nShe then saw Dr. Paulus on 18 July 2019. After reviewing her history and examining her, \nDr. Paulus could not offer any additional treatment options. [Id. at 104.] He returned her to \nwork without any restrictions. [Id. at 106.] \n Ms.  Bradley saw  Dr. Ahmadi  at  UAMS  on  3  September  2019. His  review  of  the \nimaging revealed no bony injury or malalignment and a healed, intact rotator cuff area. She \nreceived  a  lidocaine  injection  to  help  manage  her  pain and  they  discussed  non-operative \nmanagement  versus possible  arthroscopic  debridement  in  the  future.  He  noted  that  her \nactivity was not limited and released her without any restrictions. [Id. at 111-112, 114.] \n The claimant presented to Dr. Ahmadi’s clinic again on 26 May 2020 complaining of \npain. She was advised to “continue to use the right shoulder as much as possible,” and \nadditional physical therapy was recommended. [Id. at 119.] Ms. Bradley returned to the clinic \non 30 September 2020 when it was noted that she stopped physical therapy because of pain. \n[Id. at 120.] The note states that she would think about possible surgical options to address \nthe pain and return accordingly. [Id. at 124.] \n On  22  June  2021, Ms.  Bradley  returned  to  UAMS  where,  because  Dr.  Ahmadi  had \nmoved to another practice, she saw Dr. Pearce. He limited her to left arm duty pending an \nMRI. She returned after the MRI scan, and Dr. Pearce placed her at MMI on 27 July 2021. \nHe noted that she declined further physical therapy and returned her to regular duty without \n\nL. BRADLEY- G708582  \n11 \n \nrestrictions. [Id.  at  131.] Dr.  Pearce  then  provided  a  letter  dated  31  August  2021 to  the \nclaimant’s attorneys affirming that she reached MMI with no impairment rating, that she \nhad no restrictions, and that his opinion was within a reasonable degree of medical certainty. \n[Id. at 134.] \n The claimant’s medical records next include a letter from her PCP Dr. Firmatura,\n3\n \ndated 21 October 2021, which states in full: \n We are seeing this patient for all of her medical conditions. She is on \npermanent disability for right rotator cuff pathology. She had a right rotator \ncuff repair done April 2018 with minimal relief. We are no [sic] referring her \nto  pain  management  to  manage  her  pain.  If  you  have  any  questions  please \ncontact out [sic] office.  [Id. at 135.] \n  \nThe record  from  the  office  visit  apparently  associated  with  that  letter  notes  her \nemployment status as “Disabled, Disability started fell and hurt shoulder.” [Id. at 137.] \n Following Dr. Firmatura’s referral, she began treating at Pain Treatment Centers of \nAmerica on 18 November 2021. [Id. at 142-167, 169-186.] \n On 9 June 2022, Dr. Pearce dictated an addendum to his 27 June 2021 record, noting \na six percent (6%) PPI to the upper extremity, which translated to a four percent (4%) rating \nof the person as a whole according to the AMA 4\nth\n Edition guide. [Id. at 168.] \n The respondents  provided some additional  medical  records  not  included  in  the \nclaimant’s exhibits. See, [Resp. Ex. No 1.] Those records include a 26 January 2021 note from \na visit with Dr. Dill.\n4\n Right shoulder pain was among her complaints for that visit, and her \nemployment status at the time was listed as “Disabled.” [Id. at 18.] A note from another visit \nwith Dr. Dill states that she fell five months earlier onto her outstretched hands. [Id. at 22.] \n \n3\n It appears from the note that Dr. Firmatura is a provider at Family Health Associates of Southeast \nArkansas. \n4\n It  appears  from  the  note  that  Dr.  Dill  is  a  provider  at  Family  Health  Associates  of  Southeast \nArkansas. \n\nL. BRADLEY- G708582  \n12 \n \n It appears that her first visit with Dr. Firmatura was on 14 September 2021, when \nthe chief  complaint  is  listed  as establishing  care. [Id.  at  33.]  Similar to  the  note from  her \nvisit  with  Dr.  Firmatura  the  next  month, her employment status was listed as “Disabled, \nDisability started fell and hurt shoulder.”  [Id. at 34.] \nIV.  ADJUDICATION \n The  stipulations are  outlined  above and  accepted  as  facts. It  is  settled  that  the \nCommission, with the benefit of being in the presence of a witness and observing his or her \ndemeanor, determines a witness’ credibility and the appropriate weight to accord their \nstatements.  See, Wal-Mart  Stores,  Inc.  v.  VanWagner,  337  Ark.  443,  448,  990  S.W.2d  522 \n(1999). The Commission must sort through conflicting evidence and determine the true facts. \nIn so doing, the Commission is not required to believe the testimony of the claimant or any \nwitness,  but  may  accept  and  translate  into  findings  of  fact  only  those  portions  of  the \ntestimony that it deems worthy of belief. White v. Gregg Agricultural Ent., 72 Ark. App. 309, \n37  S.W.3d  649  (2001). It is further settled that a party’s testimony is never considered \nuncontroverted. Nix v. Wilson World Hotel, 46 Ark. App. 303, 879 S.W.2d 457 (1994). \nA.  The Claimant Failed to Prove by a Preponderance of the Evidence that she is \nEntitled to Permanent Total Disability.  \n \nArkansas law defines “Permanent Total Disability” as the inability, because of a \ncompensable  injury,  to  earn  any  meaningful  wages.  And  the  employee  has  the  burden  of \nproving  that  inability  to  earn  wages.  ACA.  §§  11-9-519(e)(1-2). A  permanent  impairment \nrating is not required to consider the effects of a compensable injury in a claim for permanent \ntotal disability. Rutherford v. Mid-Delta Community Services, Inc., 102 Ark. App. 317, 285 \nS.W.3d 248 (2008). \nHere, the claimant suffered a compensable injury to her right shoulder in December \nof 2017.  She  underwent  surgical  repair in  April  of  2018 and  began  physical  therapy. Her \n\nL. BRADLEY- G708582  \n13 \n \nrecovery was slow with ongoing reports of pain and stiffness. Ms. Bradley later underwent \nan aspiration to rule out a possible infection in the shoulder joint as a source of her otherwise \nunexplained pain. She reported that physical therapy caused her more pain and eventually \nstopped therapy altogether. Dr. Pearce placed Ms. Bradley at MMI and returned her to full \nduty without restrictions. He later assigned her a four percent (4%) impairment rating to the \nbody as a whole, which the respondents accepted and paid. \nThe record shows that Ms. Bradley was advised of her termination from the Pine Bluff \nSchool District  by way of  a  6  September  2019 letter indicating  her dismissal  for  failure  to \nreport to work for the 2019-2020 school year (noting eighteen consecutive days of absence on \nthe date of the letter). Her refusal to return to work as in spite of the many return to work \nauthorizations in the records. Explaining why she was not working or her possible plan for \nreturning to work, she said that she had plans to go back if “the healing process was feasible,” \nbut that she didn’t want to work if she couldn’t do what she needed to do. See, [TR at 35.] \nThe claimant states that she began receiving Social Security Disability around April \nof 2021, which would be consistent with her PCP’s letter from October 2021 referring her for \npain management and stating that she was “on permanent disability.” Findings of permanent \ndisability for the purposes of Social Security are different, however, from permanent and total \ndisability under Arkansas’s Workers’ Compensation laws. See Martin v. Jensen Construction \nCo., 2010 Ark. App. 294, 374 S.W.3d 774. Ms. Bradley recalled not being under any physician-\nordered restrictions, and only offered that she was restricting herself from working or even \nattempting to work because she was afraid of hurting herself. \nThe  claimant  failed  to  prove, by  a  preponderance  of  the  evidence, that  she  is \npermanently and totally disabled. Ms. Bradley did not offer persuasive testimony that she \nwas  totally  unable  to  earn  any  wages. Her  own  testimony  that  she  could  not  perform  any \nkind of work is not supported by the medical evidence. She did not describe attempts to find \n\nL. BRADLEY- G708582  \n14 \n \nwork or any  difficulties  associated  with  actually  attempting  any  work  duties.  Instead  she \nonly  suggested  generally  that  any  sort  of  work  she  was  familiar  with  would  be  impossible \nbecause of the physical requirements or because pain medication makes her feel tired. I find \nthe records consistent with Dr. Pearce’s release to be credible.  I  find  her  letter  from  Dr. \nFirmatura to be of little evidentiary value as it seems to be relating to her Social Security \nDisability determination and as she was self-reporting a “disability” status to his clinic from \nthe outset of her care with him.  \nAccordingly, I find that the claimant failed to prove by a preponderance of the evidence \nthat her compensable shoulder injury rendered her permanently and totally disabled. \nB. The Claimant Failed to Prove by a Preponderance of the Evidence that she is \nEntitled to Wage-loss Benefits. \n \nThe  wage-loss  factor is the extent to which an injured worker’s compensable  injury \nnegatively impacts that person’s ability to earn a livelihood. Rice v. Ga.-Pacific Corp., 72 Ark. \nApp.  148,  35  S.W.3d  328  (2000). “In considering claims for permanent partial disability \nbenefits in excess of the employee's percentage of permanent physical impairment, the \nWorkers' Compensation Commission may take into account, in addition to the percentage of \npermanent physical impairment, such factors as the employee's age, education, work \nexperience, and other matters reasonably expected to affect his or her future earning \ncapacity.” Ark. Code Ann. § 11-9-522(b)(1). A claimant’s motivation to return to work may be \nconsidered also. Rice, supra. If a work-related injury combines with a preexisting disease or \ncondition or the natural process of aging to cause or prolong the disability or need for \ntreatment, permanent benefits shall be payable for the resultant condition only if the \ncompensable injury is the major cause of the permanent disability or need for treatment. Ark. \nCode Ann. § 11-9-102(4)(F)(ii)(a). Major cause means something that is more than fifty \npercent (50%) of the cause. Ark. Code Ann. § 11-9-102(14)(A). \n\nL. BRADLEY- G708582  \n15 \n \nMs. Bradley chose not to return to her job despite several work release authorizations \nprovided by  her  physicians  through  the  course  of  her  treatment.  She  did  not  provide \ntestimony  about  how  she  now  earns wages  less  than  she  did  previously,  attributing  that \ndecrease in earnings to her compensable injury; nor did she testify that she attempted or was \nattempting to return to work. I do not find her motivated to return to work, and she testified \nto  as  much. Upon  her  presentation  to  establish  care  with  Dr.  Firmatura,  her  problem  list \nincluded:    (1)    diabetes    mellitus    with    diabetic    neuropathy,    (2)    hypertension,    (3) \nhyperlipidemia,  (4)  non-occlusive  coronary  artery  disease,  (5)  gastroesophageal  reflux \ndisease, (6) constipation, (7) morbid obesity, (8) lumbar radiculopathy, (9) sleep apnea, and \n(10) a Vitamin D deficiency. [Resp. Ex. No 1 at 37-38.] \nThe  claimant  is  over sixty  (60) years  old,  with a bachelor’s degree and secretarial \ncertification,  and  she  has ample experience  in  administrative duties from her corrections \nexperience and her work in education. Aside from general concern about hurting, she did not \nprovide persuasive evidence as to any loss in her ability to perform those functions or others \nfor  which  she  may  be  qualified.  Moreso,  she  did  not  provide persuasive  testimony  that \ndifficulty  in  the  workplace  would be  attributed  by  at  least  fifty percent (50%) to  her \ncompensable injury and not to any of the litany of other conditions with which she has been \ndiagnosed. \nThe claimant has no physician-ordered work restrictions, and the rating assigned by \nDr.  Pearce was  accepted  and  paid. I do  not find that  she prove, by  a preponderance  of  the \nevidence, that she is entitled to wage-loss disability. \nC. Attorney’s Fee \nConsistent  with  the  above,  the  claimant  fails  to  establish  that  he  is  entitled  to  an \nattorney’s fee. \nV.  ORDER \n\nL. BRADLEY- G708582  \n16 \n \n Consistent with the Findings of Fact and Conclusions of Law set forth above, this \nclaim is DENIED AND DISMISSED. \nSO ORDERED. \n \n________________________________ \n       JAYO. HOWE \n       ADMINISTRATIVE LAW JUDGE","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION AWCC FILE No G708582 LINDA K. BRADLEY, EMPLOYEE CLAIMANT PINE BLUFF SCHOOL DISTRICT, EMPLOYER RESPONDENT No 1 AR SCHOOL BOARDS ASSOC.-WCT, CARRIER/TPA RESPONDENT No 1 DEATH & PERMANENT TOTAL DISABILITY TRUST FUND RESPONDENT No 2 OPINION FILED 17 NOVEMBER 2023 Heard b...","fetched_at":"2026-05-19T23:00:36.129Z","links":{"html":"/opinions/alj-G708582-2023-11-17","pdf":"https://labor.arkansas.gov/wp-content/uploads//BRADLEY_LINDA_G708582_20231117.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}