{"id":"alj-H306917-2024-07-22","awcc_number":"H306917","decision_date":"2024-07-22","opinion_type":"alj","claimant_name":"Steve Gray","employer_name":null,"title":"GRAY VS. VISKASE COMPANIES, INC.AWCC# H306917July 22, 2024","outcome":"granted","outcome_keywords":["granted:5"],"injury_keywords":["knee","fracture","ankle"],"pdf_url":"https://www.labor.arkansas.gov/wp-content/uploads/Gray_Steve_H306917_20240722.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Gray_Steve_H306917_20240722.pdf","text_length":18853,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H306917 \n \nSTEVE GRAY, EMPLOYEE CLAIMANT \n \nVISKASE COMPANIES, INC., \nEMPLOYER RESPONDENT \n \nTRUMBULL INS. CO.,  \nCARRIER                       RESPONDENT \n \nTHE HARTFORD,  \nTPA                       RESPONDENT \n \nOPINION FILED JULY 22, 2024 \n \nHearing before Administrative Law Judge Steven Porch on June 14, 2024, in Jonesboro, Arkansas. \n \nClaimant represented by Mr. George H. Bailey, Attorney at Law, Little Rock, Arkansas. \n \nRespondents were represented by Mr. Randy P. Murphy, Attorney at Law, Little Rock, Arkansas. \n \nSTATEMENT OF THE CASE \n \n A full hearing was held on this claim on June 14, 2024. A prehearing telephone conference \ntook place on April 16, 2024. A prehearing order was entered on that date and subsequently entered \ninto evidence, with amendments by the parties, as Commission Exhibit 1. The parties’ stipulations \nare set forth. \nSTIPULATIONS \n By agreement of the parties, the stipulations applicable to this claim are as follows: \n1. The Arkansas Workers’ Compensation Commission has jurisdiction of the \nwithin claim. \n \n2. An  employer/employee/carrier relationship  existed among  the  parties  on \nOctober 13, 2023, when Claimant sustained a compensable injury to his left \nfibula and lower extremity. \n \n3. Respondents  accepted  this claim  as compensable  and  paid  some  related \nbenefits. \n \n\nGRAY H306917 \n \n2 \n \n 4.  The parties have stipulated to Claimant’s average weekly wage that entitles \nhim  to  a  temporary  total  disability  rate  of  $835  and  a  permanent  partial \ndisability rate of $626 a week. \n \nISSUES \n The parties have identified the following issues\n1\n to be adjudicated: \n1. Whether  Claimant  sustained  injuries  to  his  left  foot,  left lower  extremity above the \nknee,  and  left  lower  extremity below  the  knee as a  compensable  consequence  of his \nstipulated compensable injuries. \n \n2. Whether Claimant is entitled to an anatomical physical impairment determination for \nhis left foot, left lower extremity below the knee and above the knee. \n \n3.  Whether Claimant is entitled to a controverted attorney’s fee.  \n \nAll other issues are reserved. \n \nCONTENTIONS \n \nClaimant’s Contentions: The Claimant contends that he is entitled to multiple impairment \nratings. Those claimed are as follows: 9% to the left foot; 3% to the left lower extremity below the \nknee; and 3%  to  the  left  lower  extremity  above  the  knee.  The  rating  of  3%  to  the  left  lower \nextremity below the knee and the 3% rating to the left lower extremity above the knee are each \nalleged to be a compensable consequence under Arkansas Worker’ Compensation Law as the same \nare based on the muscle atrophy occurring as a result of, and subsequent to the fracture injury.\n2\n \nRespondents’ Contentions: Respondents contend that the Claimant has received all benefits \nto which he is entitled for the compensable injury. \n \n1\n Issue 1, whether Claimant is entitled to additional reasonable and necessary medical \ntreatment and unpaid medically related travel expenses; and Issue 2, whether Claimant is entitled \nto temporary partial disability benefits, have been resolved by the parties and are no longer issues \nfor this hearing. \n \n2\n Claimant amended his contentions through a letter from his counsel, George Bailey, on \nJune 3, 2024. This amendment was accepted. \n\nGRAY H306917 \n \n3 \n \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n After reviewing the record as a whole, including medical reports, non-medical documents, \npost hearing briefs from the parties, and other matters properly before the commission, and having \nthe opportunity to hear the testimony of the Claimant and to observe his demeanor, I hereby make \nthe following findings of fact and conclusions of law in accordance with Ark. Code Ann. § 11-9-\n704 (Repl. 2012): \n1.  The Arkansas Workers’ Compensation Commission has jurisdiction over this claim. \n2.  The stipulations set forth above are reasonable and are hereby accepted.  \n3.  The  Claimant has  proven  by  the  preponderance  of  the  evidence  that he  sustained  a \ncompensable  injury  to  his left lower  extremity above  the  knee,  left lower  extremity \nbelow  the  knee,  and  left  foot  as  a compensable  consequence of  his stipulated \ncompensable injuries. \n4.   The  Claimant has  proven  by  the  preponderance  of  the  evidence  that  he  is  entitled  to \nimpairment ratings of 3% to his left leg above the knee, 3% to his left leg below the \nknee, and 9% to his left foot. \n5.  Claimant has proven by the preponderance of the evidence that his attorney is entitled \nto a controverted attorney’s fee. \nCASE IN CHIEF \nSummary of Evidence \n The sole witness  at  the  hearing  was the Claimant. In  addition  to  the  prehearing  order \ndiscussed  above, I also have admitted  into  evidence Claimant’s Exhibit  1,  medical  records, \nconsisting of 46 pages, Claimant’s Exhibits 2, non-medical documents, correspondence, pleadings, \nconsisting of 47 pages, Claimant’s Exhibit 3, payment record, consisting of 1 page, Respondents’ \n\nGRAY H306917 \n \n4 \n \nExhibit 1,  Claimant’s  return  to  work  document,  consisting  of  1  page,  Respondents’  Exhibit  2, \npotential settlement letter dated, May 7, 2024, consisting of one 1 page, and Respondent Exhibit \n3,  functional  capacity  letter  dated  March  21,  2024,  consisting  of  1  page.  Claimant’s  and \nRespondents’ post hearing briefs are blue-backed and made a part of this record. I have also blue-\nbacked the final page of the impairment rating signed by Dr. Michael Haughey.  \nClaimant worked as a maintenance mechanic for Respondent/Employer. On October 13, \n2023, while working for the Respondent/Employer, Claimant slipped on a gel-like substance on \nthe floor, causing him to fall and suffer a broken left fibula. Respondent/Employer was made aware \nof this incident on the same day. Respondent has accepted this claim as compensable and has paid \nbenefits. Claimant  underwent  surgery  on  October  27,  2023,  performed  by  Dr. Haughey.  Dr. \nHaughey installed permanent hardware to secure Claimant’s left ankle.  \nThe Claimant was later referred by Dr. Haughey for a functional capacity evaluation and \nan impairment rating evaluation. The Functional Capacity Evaluation (“FCE”) was conducted on \nMarch 5, 2024, and concluded that the Claimant could return to work at the medium classification \nof work. The impairment evaluation summary, conducted on the same date as the FCE, resulted in \nan assignment of “2% Whole Person, 6% Lower Extremity, 9% Foot Impairment as a work-related \ninjury.” The  Impairment  Rating Summary  and  FCE were prepared  by  a  certified  occupational \ntherapist, Casey Garretson, and Dr. Haughey signed and agreed with the impairment evaluation.\n3\n \nSee Claimant’s Exhibit 1, pp. 41-45, and blue-backed signed impairment rating. The rating follows \nthe AMA Guides to the Evaluation of Permanent Impairment, Fourth Edition. The report includes \n \n3\n I am hereby reversing my decision at the hearing to not include the signed last page of \nthe FCE since it was in violation of the seven-day time limit prescribed in my prehearing order. \nThe unsigned FCE is a part of the record. Therefore, allowing the final page of that report signed \nby Dr. Haughey would not prejudice the Respondents. This final page will be blue-backed and \nmade a part of the record. \n\nGRAY H306917 \n \n5 \n \na finding that there was muscle atrophy in the Claimant’s left foot, left thigh, and left calf. Based \non the report, due to the reduced circumference of the left thigh by 1 cm and left calf by 1.2 cm, \nthe Claimant was assigned an impairment rating to the left thigh of 3% and the left calf of 3%. The \nreport combined these ratings to reflect a 6% lower left extremity impairment. The Claimant’s left \nfoot eversion of 2% resulted in a 9% impairment rating. \nThe FCE combined 6% impairment rating for the lower left extremity below the knee and \nabove the knee was accepted by Respondents. Respondents paid Claimant $4,936.00 based on this \n6% rating. However, Claimant disagrees with this amount. The Claimant argues that the 6% rating \nthat  was  based  on  two  ratings  of  3%  above  the  knee  and  3%  below  the  knee  was deficient  by \n$979.70. Claimant, in comparison, using the maximum compensation rate, 3% below the knee is \n$2,460.18, and 3% above the knee is $3,455.52, for a total of $5,915.70.  \nAdjudication \nA. Whether Claimant sustained injuries to his left foot, left lower extremity above the knee \nand left  lower  extremity  below the  knee due  to a compensable  consequence  of  the \nwork-related injury. \n \n Standard.  If an injury is compensable, every natural consequence of that injury is likewise \ncompensable.  Air Compressor Equip. Co. v. Sword, 69 Ark. App. 162, 11 S.W.3d 1 (2000).  The \ntest is whether a causal connection between the two episodes exists.  Id.; Jeter v. McGinty Mech., \n62 Ark. App. 53, 968 S.W.2d 645 (1998).  The existence of a causal connection is a question of \nfact for the Commission.  Id.; Carter v. Flintrol, Inc., 19 Ark. App. 317, 720 S.W.2d 337 (1986).  \nIt  is  generally  a  matter  of  inference,  and  possibilities  may  play  a  proper  and  important  role  in \nestablishing that relationship.  Osmose Wood Preserving v. Jones, 40 Ark. App. 190, 843 S.W.2d \n875  (1992).    It  is  not  essential  that  the  causal  connection  be  established  via  medical  evidence.  \nKoster v. Custom Pak & Trissel, 2009 Ark. App. 780, 2009 Ark. App. LEXIS 947; Gerber Prods. \n\nGRAY H306917 \n \n6 \n \nv. McDonald, 15 Ark. App. 226, 691 S.W.2d 879 (1985).  Under Ark. Code Ann. § 11-9-705(a)(3) \n(Repl. 2012), Claimant has the burden of establishing the existence of a compensable consequence \nby a preponderance of the evidence. \n The parties have stipulated that Claimant’s injury, a lateral malleolar fracture of the left \nlower  extremity,  a  broken  ankle,  was  a  compensable  injury.  Claimant  underwent  surgery  on \nOctober 27, 2023, where permanent hardware was placed and affixed, including a six-hole metal \nfibular plate and various locking screws. Due to this surgery, the Claimant did not have full use of \nhis left leg and foot for several weeks. According to the FCE and Impairment Evaluation Summary, \nthe Claimant sustained atrophy of 1 centimeter to his left thigh, atrophy of 1.2 centimeters to his \nleft calf, and a 2% eversion to the left foot. See Claimant’s Exhibit 1, pages 42, 43, and 45. I credit \nthis report. The  Impairment Rating Summary and FCE were prepared at the Functional Testing \nCenters,  Inc,  by a  certified  occupational  therapist,  Casey  Garretson,  and Rick  Byrd,  Emeritus, \nCertified Senior Disability Analyst. Dr. Haughey signed and agreed with the findings of this report. \nThe  law  is  clear  that  the  Commission  is  authorized  to  accept  or  reject  a  medical  opinion  and  is \nauthorized  to  determine  its  medical  soundness  and  probative  value. Poulan  Weed  Eater  v. \nMarshall,  79  Ark.  App.  129,  84  S.W.3d  878  (2002). Based  on  the  surgical  procedure  and  the \nhardware installed into the left ankle (See Claimant’s Exhibit 1, pages 10-12), the FCE, and the \nImpairment Evaluation Summary, it is clear that this atrophy is a direct result of the work-related \ninjury, the left ankle fracture, preventing the full and continued use of the left leg and left foot for \nseveral  weeks.  Thus,  Claimant  has  proven  by  the  preponderance  of  the  evidence  that  he  has \nsustained an  injury,  via muscle  atrophy, to  his  left foot,  left calf, and left thigh,  consistent  with \nCasey  Garretson  and  Rick  Byrd’s  Impairment  Rating  Summary  and  FCE as  a  compensable \nconsequence of his work-related injury, a broken left ankle. This leaves the question of a physical \n\nGRAY H306917 \n \n7 \n \nimpairment rating therefor. \nB.  Whether Claimant is entitled to an Anatomical Physical Impairment determination for \nhis left foot, left lower extremity below the knee and above the knee. \n \nStandard.  Permanent  impairment,  generally  a  medical  condition,  is  any  permanent \nfunctional  or  anatomical  loss  remaining  after  the  healing  period  has  been  reached.   Ouachita \nMarine v. Morrison, 246 Ark. 882, 440 S.W.2d 216 (1969).  Pursuant to Ark. Code Ann. § 11-9-\n522(g)  (Repl.  2002),  the  Commission  adopted  the Fourth  Edition  of  the AMA  Guides  as  an \nimpairment rating guide.  See AWCC R. 099.34.   A determination of the  existence or  extent of \nphysical impairment must be supported by objective and measurable physical or mental findings.  \nArk.  Code  Ann.  §  11-9-704(c)(1)(B)  (Repl.  2012).    Permanent  benefits  are  to  be  awarded  only \nfollowing  a  determination  that  the  compensable  injury  is  the  major  cause  of  the  disability  or \nimpairment.  Id. § 11-9-102(F)(ii).  “Major cause” is defined as “more than fifty percent (50%) of \nthe cause,” and a finding of major cause must be established by a preponderance of the evidence.  \nId. § 11-9-102(14).  Any medical opinion must be stated within a reasonable degree of medical \ncertainty.  Id. § 11-9-102(16). \n Discussion.  Based on the Impairment Rating Summary and FCE, the Claimant sustained \natrophy of 1 centimeter to his left thigh, and atrophy of 1.2 centimeters to his left calf, and a 2% \neversion to the left foot resulting in a 9% impairment rating. See Claimant Exhibit 1, pages 42, 43, \nand 45.  These are clear objective findings. But for the work-related left ankle injury, followed by \nthe  surgery,  disrupting  the  continued  and  full  use  of  his  left  leg  and  foot  for  several  weeks, \nClaimant  would  not  have  experienced  atrophy  to  his  left  thigh, calf and  foot.  Therefore,  I  find \nClaimant has proven by the preponderance of the evidence that he has sustained an injury to his \nleft foot, left calf, and left thigh, with objective findings of muscle atrophy consistent with Casey \nGarretson and Rick Byrd’s Impairment Rating Summary and FCE. I further find that Claimant’s \n\nGRAY H306917 \n \n8 \n \nwork-related compensable injury was a major cause of the left thigh, calf, and foot impairment; \nand as such, the Claimant is entitled to a 3% impairment rating to the left lower extremity above \nthe  knee,  and  a  3%  impairment  rating  to  the  left  lower  extremity  below  the  knee,  and  a  9% \nimpairment  rating  to  the  left  foot  consistent  with  Casey  Garretson and Rick Byrd’s Impairment \nRating Summary and FCE.  \n The impairment rating report makes clear that Claimant’s muscle atrophy impairment is \nthe greatest impairment and is the most appropriate, applicable impairment for him. See Claimant’s \nExhibit 1, page 45. During the hearing, Claimant testified, very convincingly, that all his issues \ninvolving his left leg have resolved. See Transcript page 46, lines 16-25, to page 47, lines 1-22. \nHowever, whether the muscle atrophy did in fact resolve is unclear. Claimant had serious hardware \ninstalled to secure his ankle. Though he has some range of motion with the permanent hardware, \nit  stands  to  reason  he  does  not  have full  range  of  motion  with  the  installation  of  the  hardware. \nMoreover, since Claimant may not be experiencing symptoms does not meant that the atrophy has \nindeed  resolved. Simply  stated,  we  will  need  another  FCE  to  make  that  determination. Thus,  I \ndon’t credit Claimant’s testimony in this respect  though I am  convinced he feels better. In  this \nrespect, I continue to credit the FCE and Impairment Evaluation Summary performed by Casey \nGarretson, Occupational Therapist,  and  Rick  Byrd, Emeritus, Senior  Disability  Analyst.  See \nClaimant’s Exhibit 1, page 45.  \nDuring the hearing, the argument was made that Respondents have accepted and paid the \n6% rating to  Claimant in  full  satisfaction of Claimant’s  impairment  to  the left  lower  extremity \nabove the knee and below the knee in an amount of $4,936.00. Claimant challenges this payment \nas full satisfaction of the 6% impairment rating. Claimant reasons that the 6% rating was based on \ntwo combined ratings of 3% above the knee and 3% below the knee. Claimant, in his calculation, \n\nGRAY H306917 \n \n9 \n \nusing  the  maximum statutory compensation  rate, shows 3% below  the  knee  ($82,006  x  .03) is \n$2,460.18, and 3% above the knee ($115,184 x .03) is $3,455.52, for a total of $5,915.70, resulting \nin a deficit of $979.70 owed by Respondent. Though I agree with Claimant’s calculation of the 6% \nimpairment rating, this argument was not officially made an issue before the Commission, and it \nwill not be formally addressed beyond this point. However, the Claimant is entitled to payment for \nthe left lower extremity below and above the knee, and his foot consistent with this opinion. \nC. Whether the Claimant is entitled to a controverted attorney’s fee. \n \nOne of the purposes of the attorney's fee statute is to put the economic burden of litigation \non the party who makes litigation necessary.  Brass v. Weller, 23 Ark. App. 193, 745 S.W.2d 647 \n(1998).  Under Ark. Code Ann. § 11-9-715 (Repl. 2012): \n(B)  Attorney’s  fees  shall  be  twenty-five  percent  (25%)  of  compensation  for \nindemnity  benefits  payable  to  the  injured  employee  or  dependents  of  a  deceased \nemployee  .  .  .  In  all  other  cases  whenever  the  commission  finds that  a  claim has \nbeen controverted, in whole or in part, the commission shall direct that fees for legal \nservices be paid to the attorney for the claimant as follows:  One-half (½) by the \nemployer or carrier in addition to compensation awarded; and one-half (½) by the \ninjured  employee  or  dependents  of  a  deceased  employee  out  of  compensation \npayable to them. \n \n Discussion.    The  evidence  before  me  clearly  shows  that  Respondents  have  controverted \nClaimant’s entitlement to the additional indemnity benefits awarded herein.  Thus, the evidence \npreponderates that Claimant’s counsel, the Hon. George Bailey, is entitled to a controverted fee \nthereon pursuant to the above provision. \nCONCLUSION AND AWARD \n Respondents are hereby directed to pay/furnish benefits in accordance with the findings of \nfact and conclusions of law set forth above. All accrued sums, minus any lawful offsets, shall be \npaid in a lump sum without discount, and this award shall earn interest at the legal rate until paid, \npursuant to Ark. Code Ann. § 11-9-809 (Repl. 2002).  See Couch v. First State Bank of Newport, \n\nGRAY H306917 \n \n10 \n \n49 Ark. App. 102, 898 S.W.2d 57 (1995). \n IT IS SO ORDERED. \n       ________________________________ \n       Hon. Steven Porch \n                                                                                    Administrative Law Judge","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H306917 STEVE GRAY, EMPLOYEE CLAIMANT VISKASE COMPANIES, INC., EMPLOYER RESPONDENT TRUMBULL INS. CO., CARRIER RESPONDENT THE HARTFORD, TPA RESPONDENT OPINION FILED JULY 22, 2024 Hearing before Administrative Law Judge Steven Porch on June 14, 2024, in Jonesbo...","fetched_at":"2026-05-19T22:51:47.714Z","links":{"html":"/opinions/alj-H306917-2024-07-22","pdf":"https://www.labor.arkansas.gov/wp-content/uploads/Gray_Steve_H306917_20240722.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}