{"id":"full_commission-G600552-2024-10-16","awcc_number":"G600552","decision_date":"2024-10-16","opinion_type":"full_commission","claimant_name":"Tammy Miller","employer_name":"Mhm Support Services","title":"MILLER VS. MHM SUPPORT SERVICES AWCC# G600552 October 16, 2024","outcome":"unknown","outcome_keywords":[],"injury_keywords":["hip","back"],"pdf_url":"https://www.labor.arkansas.gov/wp-content/uploads/Miller_Tammy_G600552_20241016.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Miller_Tammy_G600552_20241016.pdf","text_length":16647,"full_text":"NOT DESIGNATED FOR PUBLICATION \nBEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. G600552 \nTAMMY MILLER, EMPLOYEE      CLAIMANT \nMHM SUPPORT SERVICES,  \nEMPLOYER                                 RESPONDENT #1 \n \nMERCY HEALTH, \nINSURANCE CARRIER/TPA    RESPONDENT #1 \n \nDEATH & PERMANENT TOTAL \nDISABILITY TRUST FUND    RESPONDENT #2 \n \n \nOPINION FILED OCTOBER 16, 2024 \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas.  \nClaimant  represented  by  the  HONORABLE EDDIE  H.  WALKER,  JR., \nAttorney, Fort Smith, Arkansas.  \nRespondent #1 represented  by  the  HONORABLE RANDY  P.  MURPHY, \nAttorney, Little Rock, Arkansas.  \nRespondent #2 represented by the HONORABLE DAVID L. PAKE, Attorney, \nLittle Rock, Arkansas.  \nDecision of Administrative Law Judge: Affirmed and Adopted.  \n \nOPINION AND ORDER \n Respondent appeals an opinion and order of the Administrative Law \nJudge filed May 29, 2024.  In said order, the Administrative Law Judge made \nthe following findings of fact and conclusions of law:  \n\n2 \nMILLER – G600552 \n1. The stipulations agreed to by the parties at a \npre-hearing conference conducted on \nSeptember 27, 2023, and contained in a pre-\nhearing order filed that same date are hereby \naccepted as fact.  \n \n2. Claimant has met her burden of proving by a \npreponderance of the evidence that she has \nsuffered a permanent physical impairment rating \nin an amount equal to 30% to the body as a \nwhole for her compensable left hip injury.  \n \n3. Claimant has met her burden of proving by a \npreponderance of the evidence that she has \nsuffered a permanent impairment in an amount \nequal to 5% to the body as a whole as a result of \nher compensable pelvic floor dysfunction.  \n \n4. Claimant has met her burden of proving by a \npreponderance of the evidence that she is \npermanently totally disabled as a result of her \ncompensable injury.  \n \n5. Respondent #1 has controverted Claimant’s \nentitlement to permanent total disability benefits.  \nWe have carefully conducted a de novo review of the entire record \nherein and it is our opinion that the Administrative Law Judge’s May 29, \n2024 decision is supported by a preponderance of the credible evidence, \ncorrectly applies the law, and should be affirmed.  Specifically, we find from \na preponderance of the evidence that the findings made by the \nAdministrative Law Judge are correct and they are, therefore, adopted by \nthe Full Commission.  \n\n3 \nMILLER – G600552 \nAll accrued benefits shall be paid in a lump sum without discount and \nwith interest thereon at the lawful rate from the date of the Administrative Law \nJudge’s decision in accordance with Ark. Code Ann. §11-9-809 (Repl. 2012).  \nFor prevailing on this appeal before the Full Commission, Claimant’s \nattorney is entitled to fees for legal services in accordance with Ark. Code \nAnn. §11-9-715 (Repl. 2012).  For prevailing on appeal to the Full \nCommission, the Claimant’s attorney is entitled to an additional fee of five \nhundred dollars ($500), pursuant to Ark. Code Ann. §11-9-715(b) (Repl. \n2012). \nIT IS SO ORDERED.  \n      \n_______________________________ \n   SCOTTY DALE DOUTHIT, Chairman             \n \n_______________________________ \n   M. SCOTT WILLHITE, Commissioner   \n \n \nCommissioner Mayton dissents. \n \nDISSENTING OPINION \n \nI must respectfully dissent from the majority’s opinion finding the \nclaimant is entitled to a thirty percent (30%) impairment rating for her left hip \ninjury, an additional five percent (5%) impairment rating for her pelvic floor \ndysfunction and is permanently and totally disabled as a result of her \nJanuary 22, 2016 compensable injury. \n\n4 \nMILLER – G600552 \nThe claimant has undergone extensive treatment and multiple \nsurgeries resulting from that injury and reached maximum medical \nimprovement on June 30, 2019.  She received a fourteen percent (14%) \nwhole body impairment rating at that time as a result of her injuries to her \nback and SI joints.  \nThe claimant later contended that she was permanently and totally \ndisabled or entitled to wage loss benefits in excess of her impairment rating.  \nA hearing was held on January 13, 2021.  In an opinion dated \nFebruary 25, 2021, an administrative law judge determined that the \nclaimant was not permanently and totally disabled but awarded the claimant \nsixty percent (60%) wage-loss disability. \nThe claimant later sought additional wage-loss benefits or, \nalternatively, an award of permanent and total disability benefits.  A hearing \nwas held on May 8, 2024.   \nIn an order dated May 29, 2024, an administrative law judge ruled \nthat the claimant is entitled to an additional thirty percent (30%) impairment \nrating for her left hip injury and an additional five percent (5%) impairment \nfor pelvic floor dysfunction and is permanently totally disabled.  \nRespondents #1 have filed an appeal alleging res judicata, arguing \nthat the issue of wage loss disability has been fully adjudicated.  In addition, \nrespondents #1 are alleging on appeal the claimant has failed to show any \nmaterial change in her condition since the February 25, 2021 Opinion and is \n\n5 \nMILLER – G600552 \nnot permanently and totally disabled or entitled to any additional permanent \nimpairment. \nRes judicata applies where there has been a final adjudication on the \nmerits of the issue by a court of competent jurisdiction on all matters \nlitigated and those matters necessarily within the issue which might have \nbeen litigated.  Beliew v. Stuttgart Rice Mill, 64 Ark. App. 334, 987 S.W.2d \n281 (1998).  \nThe key question regarding the application of res judicata is whether \nthe party against whom the earlier decision is being asserted had a full and \nfair opportunity to litigate the issue in question.  Cater v. Cater, 311 Ark. \n627, 846 S.W.2d 173 (1993). Res judicata does not apply if a claimant has \nsustained a change in condition or seeks benefits for a subsequent period \nof complications.  Rothrock v. Advanced Envtl. Recycling, 2018 Ark. App. \n88, 544 S.W.3d 61 (2018).  \nBefore analyzing the claim under the doctrine of res judicata, the \nburden of proof rests with claimant to establish whether there had been \na change in his physical condition.  Id.   The issue-preclusion provision \nof res judicata is also referred to as collateral estoppel and will bar \nrelitigating  issues if the following requirements are met: “(1) the issue \nsought to be precluded must be the same as that involved in the prior \nlitigation; (2) the issue must have been actually litigated; (3) the issue must \nhave been determined by a valid and final judgment; and (4) the \n\n6 \nMILLER – G600552 \ndetermination must have been essential to the judgment.”  Id.  It is well \nsettled that res judicata applies to decisions of the Commission.  Craven v. \nFulton Sanitation Serv., 361 Ark. 390, 206 S.W.3d 842 (2005). \nFurther, our Rules require that a claimant’s petition for additional \nbenefits is barred by res judicata unless there is a significant new \ndevelopment to the claimant’s condition.  “Res judicata applies to the \nCommission decisions if the merits of the issue have already been subject \nto a full and fair hearing, unless there is evidence of a change following the \nprevious order.”  Shaver v. Ashley County Detention Center, 2015 Ark. App. \n151 (2015) (citing Beliew v. Stuttgart Rice Mill, 64 Ark. App. 334, 987 \nS.W.2d 281 (1998)).  \nIn Shaver, the Court stated that the Commission “found that res \njudicata barred Shaver's claim because he had already litigated the issue of \ntemporary-total-disability benefits and there had been no material change in \nhis condition since the first order,” stating: \n[g]iven our standard of review, the fact that \nShaver had previously been released to work \nand found to be at maximum medical \nimprovement, and the fact that Shaver failed to \nprove that his condition had changed since the \nprevious order, we must affirm the \nCommission's decision that Shaver failed to \nprove entitlement to additional temporary-total-\ndisability benefits. Id. \n \nA new diagnosis, without a material change of worsening symptoms, \ndoes not constitute a change of condition sufficient to overcome this bar. \n\n7 \nMILLER – G600552 \nSee e.g. Leonard v. Brookwood Nursing Ctr., 1997 Ark. App. LEXIS 744 \n(1997); Pursifull v. Wilkinson Transportation, Inc., 1986 Ark. App. LEXIS \n2357 (1986). \nIn this matter, the claimant reached maximum medical improvement \non June 30, 2019, and received a fourteen percent (14%) whole body \nimpairment rating.  The claimant later contended that she was permanently \nand totally disabled or that she was entitled to wage loss benefits in excess \nof her impairment rating.  \nIn an opinion dated February 25, 2021, an administrative law judge \ndetermined that the claimant was not permanently and totally disabled but \nawarded the claimant sixty percent (60%) in wage-loss disability.  \nThe claimant later sought additional wage-loss benefits or, \nalternatively, an award of permanent and total disability benefits.  These \nissues are res judicata, as the claimant has failed to show any material \nchange in her condition since the February 25, 2021 order. \nDr. Terry Sites, an orthopedic surgeon, also evaluated the claimant \nand testified that, “based upon objective evidence I would say there’s no \nreason why she can’t work as an RN.”  \nDr. Owen Kelly, an orthopedic surgeon, also opined that: \nI see no reason that this lady cannot slowly get \nback to work. It is my opinion that the best \nthing for the lady would be to try to get back to \nwork in a slow, progressive fashion. I see no \n\n8 \nMILLER – G600552 \nobjective findings that would warrant an \nimpairment rating. \n \n Dr. George Diemel of Arkansas Orthopedics concluded that there \nwere no objective findings to support the claimant’s ongoing complaints and \nDr. Mary Francis Daut suspected “secondary gain or workman’s comp as \nmotivating factor for [claimant’s] pain.”  \nDr. Casey Smith with Advanced Orthopedics of Tulsa evaluated the \nclaimant and testified in a deposition that the claimant’s complaints of pain \nwere not proportionate to his findings on examination.  \n As recently as July 26, 2023, Dr. Daut opined that the claimant’s pain \nis chronic: \nThe problem identified has been going on for \nyears.  It is chronic (expected to last one year \nor more) but stable (meeting treatment goals). \nThe patient’s treatment goals are to clean \nhouse, wash dishes without needing to take a \nbreak, and cook a meal without needing to sit \ndown.  For this problem, we have met \ntreatment goals. \n \nFurther, Dr. Daut opined that the claimant: \npresents for evaluation and management of \nchronic pain in the left hip.  It has been going \non for years.  It is chronic (expected to last one \nyear or more) but stable (meeting treatment \ngoals.)  Her treatment goals are to \nwalking/exercise and Improved mobility.  For \nthis problem, we have met treatment goals.  \n \n Despite this extensive history, the majority relies on Dr. Christopher \nDaugherty’s diagnosis of pelvic floor dysfunction, complex regional pain \n\n9 \nMILLER – G600552 \nsyndrome, and osteoarthritis in its ruling that the claimant is permanently \nand totally disabled; however, in his opinion, Dr. Dougherty indicated that \nphysical therapy had helped claimant’s condition a little, but she continued \nto have pain.  \nAn April 2023 bone scan was unremarkable—there were no \nobjective findings.  Dr. Dougherty released the claimant at maximum \nmedical improvement with a whole-body impairment rating of thirty percent \n(30%) on July 12, 2023, stating that the claimant’s impairment rating was \nlimited to her hip.  At his deposition, Dr. Dougherty admitted that the \nclaimant’s condition has “been stable for a long time.”  \n There has, however, been no decline in the claimant’s condition \nsince the 2021 hearing on these issues.  The claimant’s condition and its \ntreatment have not changed, only the name.  \nBy her own admission, the claimant has no upcoming appointments \nto continue treatment for her pelvic floor dysfunction and has reached MMI. \nThe only changes the claimant alleges are the result of pelvic floor \ndysfunction and alleged increased pain.  \nThe only evidence we have of any condition is the claimant’s own \nself-serving complaints of pain, which many of her doctors have \ndetermined to be exaggerated and out of proportion to the objective \nevidence. \n\n10 \nMILLER – G600552 \n Because the issue of permanency has been previously litigated in \nthis matter, and the claimant has failed to show a material change in her \nphysical condition, I find that these issues are barred by the doctrine of res \njudicata.  \n“‘Permanent total disability’ means inability, because of compensable \ninjury or occupational disease, to earn any meaningful wages in the same \nor other employment.”  Ark. Code Ann. § 11-9-519(e)(1).  \nThe employee bears the burden of proving the inability to earn any \nmeaningful wage in the same or other employment.  Ark. Code Ann. § 11-9-\n519(e)(2).  “In the absence of clear and convincing proof to the contrary, the \nloss of both hands, both arms, both legs, both eyes, or of any two (2) \nthereof shall constitute permanent total disability;” however, “[i]n all other \ncases, permanent total disability shall be determined in accordance with the \nfacts.”  Ark. Code Ann. § 11-9-519(b)-(c).  “Permanent benefits shall be \nawarded only upon a determination that the compensable injury was the \nmajor cause of the disability or impairment.”  Ark. Code Ann. § 11-9-\n102(4)(F)(ii)(a).  Arkansas Code Annotated § 11-9-102(4)(D) provides that a \ncompensable injury must be established by medical evidence supported by \n\"objective findings.\"  An objective finding is defined as a finding which \ncannot come under the voluntary control of the claimant.  Ark. Code Ann. § \n11-9-102(16)(A)(i). \n\n11 \nMILLER – G600552 \nThe same factors that are considered when analyzing wage loss \ndisability claims are usually considered when analyzing permanent and total \ndisability claims.  Maulding v. Price's Utility Contractors, 2009 Ark. App. \n776, 358 S.W.3d 915 (2009).  Those factors include the claimant’s age, \neducation, work experience, motivation, post-injury income, credibility, \ndemeanor, and any other matters reasonably expected to affect her future \nearning capacity.  Ark. Code Ann. § 11-9-522(b)(1); St. Vincent Health \nServs. v. Bishop, 2010 Ark. App. 141 (2010).  \nPermanent total disability as defined by our legislature makes no \nprovision for whether employment is available in any particular geographical \narea, but instead provides that a claimant must prove the inability to earn \nany meaningful wages because of the compensable injury.  See Ark. Code \nAnn. § 11-9-519(e)(1); Birtcher v. Mena Water Utils., 2017 Ark. App. 210, \n518 S.W.3d 707 (2017). \n As highlighted above, the claimant is capable of working sedentary \njobs.  The only limitations provided by Dr. Dougherty include lifting and \nambulation.  Dr. Daut opined that “the patient’s treatment goals are to \nclean house, wash dishes without needing to take a break, and cook a \nmeal without needing to sit down.  For this problem, we have met \ntreatment goals.”  Despite the claimant’s contentions, the evidence \nsupports the conclusion that she can work a sedentary, seated job. \n\n12 \nMILLER – G600552 \n The claimant is 51 years old and has years of employment \nexperience that would allow for her to obtain any number of sedentary \njobs.  Specifically, the claimant earned a degree in nursing, has experience \nworking for corporations such as performing demonstrations for Wal-Mart, \nand as a senior account manager for J.B. Hunt which was a sit-down desk \njob for three (3) years until she was fired for having an affair with a co-\nworker.  \nThe claimant is not inhibited in her ability to earn a livelihood.  She \nis simply motivated by the desire to not return to work as noted by Dr. Daut \nwho suspected “secondary gain or workman’s comp as motivating factor \nfor [claimant’s] pain.” \n This claimant is a prime candidate for vocational rehabilitation.  She \nis perfectly capable of returning to the job market as noted by many of her \ntreating physicians.  She simply chooses not to even try to return to work. \nThere are no findings, objective or otherwise, that would support the \ncontention that the claimant is unable to earn a meaningful wage. \nAccordingly, for the reasons set forth above, I must dissent. \n \n                                     _______________________________                                     \n                                     MICHAEL R. MAYTON, Commissioner","preview":"NOT DESIGNATED FOR PUBLICATION BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. G600552 TAMMY MILLER, EMPLOYEE CLAIMANT MHM SUPPORT SERVICES, EMPLOYER RESPONDENT #1 MERCY HEALTH, INSURANCE CARRIER/TPA RESPONDENT #1 DEATH & PERMANENT TOTAL DISABILITY TRUST FUND RESPONDENT #2 OPINION FILED OCTOBER 16, 2024 ...","fetched_at":"2026-05-19T22:29:44.832Z","links":{"html":"/opinions/full_commission-G600552-2024-10-16","pdf":"https://www.labor.arkansas.gov/wp-content/uploads/Miller_Tammy_G600552_20241016.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/"}}