{"id":"alj-H108811-2024-07-16","awcc_number":"H108811","decision_date":"2024-07-16","opinion_type":"alj","claimant_name":"Julie Revels","employer_name":null,"title":"REVELS VS. MAGNET COVE ELEMENTARY SCHOOLAWCC# H108811July 16, 2024","outcome":"granted","outcome_keywords":["affirmed:1","granted:4"],"injury_keywords":["shoulder","rotator cuff"],"pdf_url":"https://www.labor.arkansas.gov/wp-content/uploads/REVELS_JULIE_H108811_20240716.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"REVELS_JULIE_H108811_20240716.pdf","text_length":19761,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H108811 \n \nJULIE REVELS,  \nEMPLOYEE CLAIMANT \n \nMAGNET COVE ELEMENTARY SCHOOL, \nEMPLOYER                                                                                                         RESPONDENT \n \nARKANSAS SCHOOL BOARDS ASS’N. WORKERS’ \nCOMPENSATION TRUST/ARKANSAS SCHOOL  \nBDS. ASS’N, INS. CARRIER/TPA                                               RESPONDENT \n \nOPINION FILED JULY 16, 2024 \n \nHearing conducted before the Arkansas Workers’ Compensation Commission (the Commission), \nAdministrative Law Judge (ALJ) Mike Pickens on April 17, 2024, in Little Rock, Pulaski County, \nArkansas.  \n \nThe claimant was represented by the Honorable Gary Davis, Davis Law Firm, Little Rock, Pulaski \nCounty, Arkansas.  \n \nThe respondents were represented by the Honorable Melissa Wood, Worley, Wood & Parrish, P.A., \nLittle Rock, Pulaski County, Arkansas. \n \nINTRODUCTION \n \n In the prehearing order filed March 7, 2024, the parties agreed to the following stipulations, \nwhich they affirmed on the record at the hearing: \n1. The Arkansas Workers' Compensation Commission (the Commission) has \n jurisdiction over this claim. \n \n2. The  employer/employee/carrier-TPA  relationship existed  with  the  claimant at all \nrelevant  times including September  21,  2021,  when  the  claimant  sustained  an \nadmittedly compensable injury to her right shoulder, for which the respondents paid \nmedical and indemnity benefits. \n \n3. The claimant’s average weekly wage (AWW) was $1,128.44, which is sufficient to \nentitle her to weekly compensation rates of $736.00 for temporary total disability \n(TTD), and $552.00 for permanent partial disability (PPD) benefits. \n \n \n \n\nJulie Revels, AWCC No. H108811 \n \n2 \n \n4. The claimant’s authorized treating physician assigned her a permanent anatomical \nimpairment rating of 11% to the body-as-a-whole (BAW). \n \n5. The respondents have accepted and paid, or are in the process of paying, a permanent \nanatomical impairment rating of five percent (5%) BAW. \n \n6. The respondents controvert only the difference between the 11% BAW and five 5% \nBAW impairment ratings, which totals six percent (6%) BAW. \n \n7. The parties specifically reserve any and all other issues for future determination and/or \nlitigation. \n \n(Commission Exhibit 1 at 2; T. at 4-5). Pursuant to the party’s mutual agreement the issues \nlitigated at the hearing were: \n1. Whether the claimant is entitled to PPD benefits commensurate with the eleven \npercent 11% BAW, or the five percent 5% BAW permanent anatomical impairment \nrating pursuant to the applicable American Medical Association Guides to the \nEvaluation of Permanent Impairment (AMA, 4\nth\n Edition 1993) (the AMA Guides). \n \n2. Whether and to what extent the claimant’s attorney is entitled to a controverted fee on \nthese facts. \n \n3. The parties specifically reserve any and all other issues for future determination \nand/or litigation. \n \n(Comms’n Ex. 1 at 2; T. 4-5). \n \n The claimant contends she sustained admitted compensable injuries to her right shoulder. \nShe contends her authorized, principal treating physician assigned her a permanent anatomical \nimpairment rating of 11% BAW, and she is entitled to PPD benefits based on this 11% BAW rating. \nShe contends the respondents have accepted and will pay only a 5% BAW permanent anatomical \nimpairment rating. The claimant contends the respondents have controverted payment of PPD \nbenefits commensurate with the difference between the 11% BAW rating and the 5% BAW rating, \nwhich is 6% BAW and, therefore, her attorney is entitled to a controverted fee based on this amount \n(6%  BAW).  Finally,  the  claimant’s  attorney  respectfully  requests the  Commission  order  the \n\nJulie Revels, AWCC No. H108811 \n \n3 \n \nrespondents to deduct any attorney’s fees the claimant owes based on controverted benefits she \nmay receive by award or otherwise, and to pay his attorney’s fees by separate check payable \ndirectly to him. (Comms’n Ex. 1 at 3; T. 4-5; 102-104). \n  The respondents contend they have accepted and paid all appropriate benefits related to the \nclaimant’s September 21, 2021, compensable shoulder injury. The respondents contend they have \naccepted a 5% BAW permanent anatomical impairment rating, and that this 5% BAW rating is \nsupported by the AMA Guides, while the 11% rating is not supported by the AMA Guides. The \nrespondents reserve the right to supplement their contentions and to assert any and all other \napplicable defenses and arguments upon the completion of necessary investigation and discovery. \nThe  respondents  reserve  any  and  all  other  issues  for  future  determination  and/or  litigation. \n(Comms’n Ex. 1 at 3; T. 4-5; T. 104-106). \nSTATEMENT OF THE CASE \n The claimant, Ms. Julie Revels (the claimant), is 57 years old. She has worked as an \nelementary school teacher for some 34 years. She has worked for the Magnet Cove School District \nfor 21 years, and was working there as a third (3\nrd\n) grade teacher at the time of her admittedly \ncompensable September 21, 2021, right shoulder injury. On September 21, 2021, the claimant \nslipped on some water that had been spilled in her classroom, and fell sideways onto her right \nshoulder. (T. 10-15). The claimant was treated by Dr. Christopher Young, a Hot Springs, Arkansas \northopedic surgeon. Dr. Young ordered an MRI which revealed a torn rotator cuff in the claimant’s \nright shoulder, and he performed surgery to repair the tear. The claimant was off work some six \n(6) weeks, and thereafter underwent about a year of physical therapy (PT). Dr. Young opined the \nclaimant reached maximum medical improvement (MMI) as of November 8, 2022, and noted the \nshe was to undergo a functional capacity evaluation (FCE), apparently in order to assist him in \n\nJulie Revels, AWCC No. H108811 \n \n4 \n \ndetermining her permanent anatomical impairment. (T. 10-23; Claimant’s Exhibit 1 at 76; 1-76; \nRespondents’ Exhibit 1 at 1-3).  \n On December 21, 2022, the claimant underwent the FCE at Functional Testing Centers, \nInc. (Functional Testing Centers), of Mountain Home, Arkansas, which is owned and operated by \nMr. Rick Byrd and Mr. Casey Garretson. The claimant’s FCE results were deemed to be reliable, \nwith the claimant performing the test demonstrating 50 out of 50 of the consistency measures. \nBased on the FCE results Mr. Garretson, an occupational therapist specializing in functional \ncapacity testing, opined the claimant was capable of returning to full duty work, and assigned her \na permanent anatomical impairment rating of 9% to the right upper extremity, and 5% BAW. This \nimpairment rating report cites the Arkansas Court of Appeals’ decision in Hayes v. Wal-Mart \nStores, Inc., 71 Ark. App. 207, 29 S.W.3d 751 (Ark. App. 2000), wherein the court held that passive \nrange-of-motion (ROM) tests (where the doctor or examiner manipulates the claimant’s arm) were \nnot under the claimant’s voluntary control and, therefore, were objective in nature; while active \nROM tests (where the claimant was asked to raise her arm as high as she could, etc.) were in fact \nsubjective in nature. As stipulated, the respondents accepted and paid the 5% BAW impairment \nrating. (RX1 at 4-29; 24; Stipulation No. 5, supra.). \n On March 2, 2023, Dr. Young saw the claimant in follow-up of the FCE and, based on his \nreading of the FCE, the claimant’s significant loss of use of her right arm in performing activities \nwhich required her to lift and use her right arm above her head, as well as his interpretation of the \nAMA Guides, Dr. Young assigned the claimant an 11% BAW impairment rating. (CX1 at 78-81; \nand T. 18-45). \n Some six (6) months later Mr. Rick Byrd of Functional Testing Centers was asked and did \nwrite a letter to the respondents’ adjuster entitled, “Impairment Rating Review” in which he \n\nJulie Revels, AWCC No. H108811 \n \n5 \n \nrendered an opinion that Dr. Young’s 11% BAW impairment rating was not properly based on the \nAMA Guides. Mr. Byrd also reaffirmed his and Mr. Garretson’s opinion that based on the reliable \nFCE results and the AMA Guides, the claimant was entitled to a permanent anatomical impairment \nrating of 5% BAW which, again, the respondents accepted and paid. (RX1 at 30). Both Mr. \nGarretson and Mr. Byrd testified at the hearing, explaining in some detail how they arrived at the \n5% BAW rating; and they both disagreed with Dr. Young’s 11% BAW impairment rating, affirming \nand standing by their 5% BAW impairment rating based on the reliable FCE results and their \ninterpretation of the AMA Guides. (T. 46-99). \n Finally, in a progress note report dated September 5, 2023, after having reviewed Mr. \nByrd’s “Impairment Rating Review”, Dr. Young once again examined the claimant and concluded \nhe had no reason to change his 11% BAW impairment rating; and he reaffirmed his 11% BAW \nimpairment rating stating it was in fact based on the AMA Guides. (CX1 at 82-83). Neither party \nchose to depose Dr. Young and to introduce into evidence his evidentiary deposition.  \nDISCUSSION \nThe Burden of Proof \n When deciding any issue, the ALJ and the Commission shall determine, on the basis of the \nrecord  as  a  whole,  whether  the  party  having  the  burden  of  proof  has  established  it  by  a \npreponderance of the evidence. Ark. Code Ann. § 11-9-704(c)(2) (2024 Lexis Replacement). The \nclaimant has the burden of proving by a preponderance of the evidence he is entitled to benefits. \nStone v. Patel, 26 Ark. App. 54, 759 S.W.2d 579 (Ark. App. 1998). Ark. Code Ann. Section 11-9-\n704(c)(3) (2024 Lexis Repl.) states that the ALJ, the Commission, and the courts “shall strictly \nconstrue” the Act, which also requires them to read and construe the Act in its entirety, and to \nharmonize its provisions when necessary. Farmers Coop. v. Biles, 77 Ark. App. 1, 69 S.W.2d 899 \n\nJulie Revels, AWCC No. H108811 \n \n6 \n \n(Ark. App.  2002).  In  determining  whether  the  claimant  has  met  his  burden  of  proof,  the \nCommission is required to weigh the evidence impartially without giving the benefit of the doubt \nto either party. Ark. Code Ann. § 11-9-704(c)(4) (2023 Lexis Repl.); Gencorp Polymer Products \nv. Landers, 36 Ark. App. 190, 820 S.W.2d 475 (Ark. App. 1991); Fowler v. McHenry, 22 Ark. App. \n196, 737 S.W.2d 633 (Ark. App. 1987). \n All claims for workers’ compensation benefits must be based on proof. Speculation and \nconjecture, even if plausible, cannot take the place of proof. Ark. Dep’t of Corrections v. Glover, \n35 Ark. App. 32, 812 S.W.2d 692 (Ark. App. 1991); Deana Constr. Co. v. Herndon, 264 Ark. 791, \n595 S.W.2d 155 (1979). It is the Commission’s exclusive responsibility to determine the credibility \nof the witnesses and the weight to give their testimony. Whaley v. Hardees, 51 Ark. App. 116, 912 \nS.W.2d 14 (Ark. App. 1995). The Commission is not required to believe either a claimant’s or any \nother witness’s testimony but may accept and translate into findings of fact those portions of the \ntestimony it deems believable. McClain v. Texaco, Inc., 29 Ark. App. 218, 780 S.W.2d 34 (Ark. \nApp. 1989); Farmers Coop. v. Biles, supra.  \n The Commission has the duty to weigh the medical evidence just as it does any other \nevidence, and its resolution of the medical evidence has the force and effect of a jury verdict. \nWilliams v. Pro Staff Temps., 336 Ark. 510, 988 S.W.2d 1 (1999). It is within the Commission’s \nprovince to weigh the totality of the medical evidence and to determine what evidence is most \ncredible given the totality of the credible evidence of record. Minnesota Mining & Mfg’ing v. \nBaker, 337 Ark. 94, 989 S.W.2d 151 (1999). \n \n \n\nJulie Revels, AWCC No. H108811 \n \n7 \n \nThe preponderance of the credible evidence of record demonstrates the claimant is entitled \nto the 11% permanent anatomical impairment rating Dr. Young assigned her which was \nbased on the FCE results, his own physical examinations, and the applicable AMA Guides. \n \nPermanent Anatomical Impairment, Generally \n \n  The Arkansas Court of Appeals summarized the law as follows regarding compensable \npermanent impairment in Wayne Smith Trucking, Inc. v. McWilliams, 2011 Ark. App. 414, 384 \nS.W.3d 561: \n\"Permanent  impairment\"  has  been  defined  as  \"any  permanent  functional  or \nanatomical loss remaining after the healing period has ended.\" Main v. McGehee \nMetals, 2010 Ark. App. 585, at 9, ___ S.W.3d ___, ___. Any determination of the \nexistence or extent of physical impairment must be supported by objective and \nmeasurable findings. Dillard's v. Johnson, 2010 Ark. App. 138, ___ S.W.3d ___. \n\"Objective findings\" are those that cannot come under the voluntary control of the \npatient, and specifically exclude pain, straight-leg-raising test, and range-of-motion \ntests.  Ark.  Code  Ann.  §  11-9-102(16)(A)  (Repl.  2002); Vangilder  v.  Anchor \nPackaging, Inc., 2011 Ark. App. 240. In Wal-Mart Assocs., Inc. v. Ealey, 2009 Ark. \nApp. 680, this court, in addressing an impairment rating, held that there was no \nrequirement  that  medical  testimony  be  based  solely  or expressly  on  objective \nfindings, only that the medical evidence of the injury and impairment be supported \nby objective findings. Furthermore, permanent benefits shall be awarded only upon \na determination that the compensable injury was the major cause of the disability \nor  impairment. Ark. Code Ann. §  11-9-102(4)(F)(ii)(a)  (Supp.  2009).  \"Major \ncause\"  means  more than  fifty  percent  of  the  cause. Ark. Code Ann.  §  11-9-\n102(14)(A) (Supp. 2009).  \n \n  An injured employee is entitled to compensation for the permanent functional or \nanatomical loss of use of the body as a whole whether his earning capacity is diminished or not. \nVangilder, supra. The Commission is authorized to determine what portion of the medical and other \nrelevant evidence to credit and to translate that evidence into a finding of permanent impairment \nusing The American Medical Association Guides to the Evaluation of Permanent Impairment \n(American Medical Ass’n, 4\nth\n Ed., 1993) (the AMA Guides). The Commission may assess its own \nimpairment rating rather than rely solely upon determination of the validity of ratings assigned by \nphysicians. Main v. McGehee Metals, supra. \n\nJulie Revels, AWCC No. H108811 \n \n8 \n \n  The sole question for determination in this case is whether the claimant is entitled to the 11% \nBAW impairment rating Dr. Young consistently maintained she was entitled to based upon his \nreview of the FCE and subsequently issued reports, his own examinations of her, and the applicable \nAMA  Guides.  Of  course,  the  respondents  accepted  and  paid  a  5%  BAW  impairment  rating. \nTherefore, at issue is 6% BAW – i.e., the difference between Dr. Young’s 11% BAW impairment \nrating and the 5% BAW rating the respondents accepted. \n  This was a well-litigated case on an interesting issue by two (2) excellent, highly experienced \nattorneys that turns on rather subtle evidentiary considerations. All three (3) of the witnesses who \ntestified – the claimant, Mr. Garretson and Mr. Byrd – were all articulate and highly credible. Based \non the applicable law and the totality of the evidence, I am compelled to find the claimant has in \nfact met her burden of proof in demonstrating she is entitled to a permanent anatomical impairment \nrating of 11% BAW – i.e., she is entitled to additional PPD benefits based on an additional 6% \nBAW impairment rating, the difference between Dr. Young’s 11% BAW impairment rating and the \n5% BAW impairment rating the respondents accepted, for the following reasons. \n  First, again, I found all three (3) witnesses to be articulate and highly credible. I found the \nclaimant’s testimony concerning her demonstrable, objective physical limitations and restrictions \nresulting from her admittedly compensable right shoulder injury to be credible and reasonable, and \nnot exaggerated, as apparently did Dr. Young. This is especially true when considered in light of \nthe reliable FCE results, Dr. Young’s physical examinations, and the applicable AMA Guides. \n  Second, I find the record is devoid of sufficient evidence to demonstrate that Dr. Young’s \nopinion the claimant is entitled to an 11% BAW permanent anatomical impairment rating is not in \nfact based on objective factors. Clearly, as the claimant’s treating and operating orthopedic surgeon \nDr. Young is a medical professional and is in the very best position to determine the true and \n\nJulie Revels, AWCC No. H108811 \n \n9 \n \naccurate  extent  of the  claimant’s  permanent  anatomical  impairment. After  having  treated  the \nclaimant, operated on her; examined her on multiple occasions; reviewed the FCE results and \nsubsequent related reports, and thereafter conducted his own physical examinations of her, Dr. \nYoung opined the claimant is entitled to an 11% BAW impairment rating based on the applicable \nAMA Guides. The respondents apparently argue that Dr. Young based his 11% BAW impairment \nrating at least in part on subjective factors such as passive, rather than active, ROM tests, and/or \nthe claimant’s own subjective reports of what she can and cannot do/her physical limitations and/or \nrestrictions. See, Hayes v. Wal-Mart Stores, Inc., supra. But, significantly, the record is devoid of \nsufficient evidence to support this argument. I did not notice in any of Dr. Young’s relevant reports \nthat he based his impairment rating or any part thereof on active ROM or on any other notable \nsubjective factor(s). Therefore, when Dr. Young states he based his 11% impairment rating on the \nAMA  Guides, without clear, demonstrable evidence to the  contrary it  would constitute sheer \nspeculation and conjecture for me to state and find otherwise. As in any case, such speculation and \nconjecture would be unwarranted, and improper. \n  Therefore, for all the aforementioned reasons I hereby make the following: \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n1. The stipulations contained in the prehearing order filed March 7, 2024, which the \nparties affirmed on the record at the hearing, hereby are accepted as facts. \n \n2. The  claimant  has  met  her  burden  of  proof  in  demonstrating  she  is  entitled  to  an \nimpairment rating of 11% BAW – i.e., to additional PPD benefits based on the 6% \nBAW difference in the two (2) subject ratings.  \n \n3. The claimant’s attorney is entitled to the maximum statutory attorney’s fees based \non  the  additional  PPD  benefits  awarded  for  the  additional 6%  BAW permanent \nanatomical impairment rating determined herein. \n \n4. The respondents shall deduct the claimant’s portion of the attorney’s fee from the \nbenefits awarded and shall pay the claimant’s attorney’s entire fee via a separate \ncheck made out solely to the claimant’s attorney. \n\nJulie Revels, AWCC No. H108811 \n \n10 \n \nAWARD \n \n The respondents hereby are directed to pay benefits in accordance with the “Findings of \nFact and Conclusions of Law” set forth above. All accrued sums shall be paid in lump sum without \ndiscount, and this award shall earn interest at the legal rate until paid pursuant to Ark. Code Ann. \nSection 11-9-809, and Couch v. First State Bank of Newport, 49 Ark. App. 102, 898 S.W.2d 57 \n(Ark. App. 1995); Burlington Indus., et al v. Pickett, 64 Ark. App. 67, 983 S.W.2d 126 (Ark. App. \n1998); and Hartford Fire Ins. Co. v. Sauer, 358 Ark. 89, 186 S.W.3d 229 (2004).  \n If they have not already done so, the respondents shall pay the court reporter’s fee within \n20 days of their receipt of this opinion.  \n IT IS SO ORDERED. \n \n \n                                   Mike Pickens \n       Administrative Law Judge \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \nMP/mp","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H108811 JULIE REVELS, EMPLOYEE CLAIMANT MAGNET COVE ELEMENTARY SCHOOL, EMPLOYER RESPONDENT ARKANSAS SCHOOL BOARDS ASS’N. WORKERS’ COMPENSATION TRUST/ARKANSAS SCHOOL BDS. ASS’N, INS. CARRIER/TPA RESPONDENT OPINION FILED JULY 16, 2024 Hearing conducted before...","fetched_at":"2026-05-19T22:51:28.836Z","links":{"html":"/opinions/alj-H108811-2024-07-16","pdf":"https://www.labor.arkansas.gov/wp-content/uploads/REVELS_JULIE_H108811_20240716.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}