{"id":"full_commission-H000399-2023-04-19","awcc_number":"H000399","decision_date":"2023-04-19","opinion_type":"full_commission","claimant_name":"Glenn Gregg","employer_name":"City Of Conway","title":"GREGG VS. CITY OF CONWAY AWCC# H000399 APRIL 19, 2023","outcome":"unknown","outcome_keywords":[],"injury_keywords":["shoulder"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/Gregg_Glenn_H000399_20230419.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Gregg_Glenn_H000399_20230419.pdf","text_length":9287,"full_text":"NOT DESIGNATED FOR PUBLICATION \n \n \nBEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \nCLAIM NO. H000399 \n \nGLENN GREGG, EMPLOYEE  CLAIMANT \n \nCITY OF CONWAY, EMPLOYER RESPONDENT \n \nMUNICIPAL LEAGUE WORKERS’ COMPENSATION PROGRAM,  \nINSURANCE CARRIER/TPA RESPONDENT \n \n \n \nOPINION FILED APRIL 19, 2023 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE AARON L. MARTIN, Attorney at \nLaw, Fayetteville, Arkansas. \n \nRespondents represented by the HONORABLE MARY K. EDWARDS, \nAttorney at Law, North Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Affirmed and Adopted. \n \n OPINION AND ORDER \n Respondents appeal an opinion and order of the Administrative Law \nJudge filed September 20, 2022. In said order, the Administrative Law \nJudge made the following findings of fact and conclusions of law: \n1. The Arkansas Workers’ Compensation Commission \nhas jurisdiction of the within claim. \n \n2.  I accept the above stipulations as fact. \n \n3.  The Claimant proved his entitlement to a 20% \npermanent physical impairment to the right upper \nextremity for his distal bicep rupture on January 7, \n2020. \n\nGREGG – H000399 2\n  \n \n \n \n4. The Claimant’s attorney is entitled to a controverted \nattorney’s fee on all indemnity benefits awarded herein, \npursuant to Ark. Code Ann. §11-9-715. \n \n We have carefully conducted a de novo review of the entire record \nherein and it is our opinion that the Administrative Law Judge's September \n20, 2022 decision is supported by a preponderance of the credible \nevidence, correctly applies the law, and should be affirmed.  Specifically, \nwe find from a 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 We therefore affirm the decision of the Administrative Law Judge, \nincluding all findings of fact and conclusions of law therein, and adopt the \nopinion as the decision of the Full Commission on appeal. \n All 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 \nLaw Judge's decision in accordance with Ark. Code Ann. §11-9-809 (Repl. \n2012). \n For 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 \n\nGREGG – H000399 3\n  \n \n \nhundred dollars ($500), pursuant to Ark. Code Ann. §11-9-715(b)(Repl. \n2012). \n  IT IS SO ORDERED. \n                                       _____________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n \n                                       _____________________ \n    M. SCOTT WILLHITE, Commissioner \n \n \n \nCommissioner Mayton dissents \n \n \nDISSENTING OPINION \n \nI respectfully dissent from the majority Opinion finding that the \nclaimant proved his entitlement to a 20% permanent impairment rating to \nthe right upper extremity.  \nIt is the duty of this Commission to determine whether any \npermanent anatomical impairment resulted from the injury, and, if it is \ndetermined that such an impairment did occur, the Commission has a duty \nto determine the precise degree of anatomical impairment. Johnson v. \nGeneral Dynamics, 46 Ark. App. 188, 878 S.W.2d 411 (1994); Crow v. \nWeyerhaeuser Co., 46 Ark. App. 295, 880 S.W.2d 320 (1994). In order for \nthe claimant to prove he is entitled to permanent benefits, he must prove by \na preponderance of the evidence that his workplace injury was the major \n\nGREGG – H000399 4\n  \n \n \ncause of his permanent disability. See, e.g., Hickman v. Kellogg, Brown & \nRoot, 372 Ark. 501, 277 S.W.3d 591 (2008); Wright Steel & Mach., Inc. v. \nHeimer, 2017 Ark. App. 643, 535 S.W.3d 311 (2017). Ark. Code Ann. § 11-\n9-102(14) defines “major cause” as more than 50% of the cause and a \nfinding of major cause must be established by a preponderance of the \nevidence.  \nThe ALJ’s findings rely almost entirely on the opinion of Dr. Tom \nRoberts after isokinetic testing performed in July 2020. Dr. Roberts did not \nview the extent of the claimant’s injury internally and did not perform \nsurgery on the claimant. In fact, Dr. Roberts did not administer the isokinetic \ntesting on the claimant, but merely read the results to issue an impairment \nrating using the American Medical Association Guides to the Evaluation of \nPermanent Impairment (“AMA Guides”). Isokinetic testing is a measure of \nstrength and the AMA Guides state that strength measurements are \n“influenced by subjective factors that are difficult to control.” (AMA Guides, \nP. 64). The Guides states that “[b]ecause strength measurements are \nfunctional tests influenced by subjective factors that are difficult to control, \nand the Guides for the most part is based on anatomic impairment, the \nGuides does not assign a large role to such measurements.” Id. (emphasis \nin original). The Act is clear that impairment ratings must be based on \n“objective and measurable physical findings” not subject to the claimant’s \n\nGREGG – H000399 5\n  \n \n \ncontrol. Ark. Code Ann. § 11-9-704(c)(1)(B). Passive range of motion \ntesting does not fall within a claimant’s voluntary control and “is the correct \nmethod to determine a claimant’s potential impairment rating.” Hayes v. \nWal-Mart Stores, 71 Ark. App. 207, 29 S.W.3d. 751 (2000). \nThe claimant’s isokinetic testing was performed “at the therapy \nplace, wherever that was. It was a physical therapy place in Conway.” \n(Hrng. Tr., P. 26). Dr. Roberts did not perform the testing himself, and his \nonly report regarding the claimant’s range of motion reflects that the \nclaimant had “full range of motion of his right elbow. . . He ha[d] good \nforward flexion abduction strength of his shoulder. No significant swelling \n[was] noted.” (Joint Ex, P. 122). In fact, Dr. Roberts noted on four occasions \nthat the claimant had full extension and flexion of his right elbow. (Joint Ex., \nPp. 86-89, 103-104, 112-113, 121-122). Dr. Robert’s notes reflect that he \nrelied on the claimant’s statements regarding his injury rather than objective \nfacts. (See Joint Ex., P. 121). Dr. Robert’s impairment rating is given more \nweight than it is warranted by the ALJ. The unreliable isokinetic testing was \nnot performed by Dr. Roberts and he based the claimant’s impairment \nrating on data that he had not viewed first-hand. Furthermore, the objective \ntesting prioritized by the State reflected that the claimant has no impairment \nwhatsoever. \n\nGREGG – H000399 6\n  \n \n \nThe ALJ and the Commission have ignored the Claimant’s treating \nphysician, Lawrence O’Malley, who was in the best position to evaluate the \nclaimant and render an opinion on permanent impairment. Dr. O’Malley \nperformed surgery on the claimant’s right bicep on January 20, 2020, and in \nhis operative report stated he found “no fluid around the tendon, which \nwould be consistent with an acute injury” and extensive scarring which in \nhis opinion indicated an injury greater than six months in age due to the \namount of scarring present. (Joint Ex. 1, P. 71). He went on to state, “There \nis a very short amount of bicep tendon residual left with rounding off of the \ntendon consistent with a chronic injury.” Id. Later, in an opinion letter, dated \nDecember 2, 2020, Dr. O’Malley opined that the bicep tendon had a chronic \ntear and there was no fluid surrounding the residual tendon that would \nnormally be found after an acute rupture. (Resp. Ex., P. 6). Dr. O’Malley is \nof the opinion that the tear was at least six months old at the time of \nsurgery. Id. In his report dated December 3, 2020, Dr. O’Malley stated the \nclaimant’s tendon was chronically torn and that he had been performing his \nfull job as a firefighter with a torn distal bicep prior to his work injury. Dr. \nO’Malley assessed a 0% impairment rating. (Joint Ex., P.p. 76-80). \nThe Commission must remember that a claimant’s testimony is \nnever uncontroverted. Nix v. Wilson World Hotel, 46 Ark. App. 303, 879 \nS.W.2d 457 (1994). Further, the Commission is well within its rights to \n\nGREGG – H000399 7\n  \n \n \ndecide which medical evidence best translates to a finding of medical \nimpairment. See Polk County v. Jones, 74 Ark. App. 159, 47 S.W.3d 904 \n(2001). \nThe claimant has provided no medical proof of objective findings that \nhe is permanently impaired. In fact, Dr. O’Malley opined that 0% of the \nclaimant’s alleged impairment can be attributed to a compensable injury as \nthe claimant’s ruptured bicep tendon is a chronic condition pre-dating the \nalleged injury. These findings of the claimant’s treating physician, who \nperformed surgery on the claimant, must prevail over findings of a doctor \nwho did not even perform the subjective testing on which his rating was \nbased. \nIn the matter at hand, Dr. O’Malley’s opinion based on his hands-on \nfindings bear much greater weight than those of Dr. Roberts.  Accordingly, \nfor the reasons set forth above, I must dissent. \n \n \n                                                                              _____________________ \n    MICHAEL R. MAYTON, Commissioner","preview":"NOT DESIGNATED FOR PUBLICATION BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H000399 GLENN GREGG, EMPLOYEE CLAIMANT CITY OF CONWAY, EMPLOYER RESPONDENT MUNICIPAL LEAGUE WORKERS’ COMPENSATION PROGRAM, INSURANCE CARRIER/TPA RESPONDENT OPINION FILED APRIL 19, 2023 Upon review before the FULL COMMISSION in...","fetched_at":"2026-05-19T22:29:46.511Z","links":{"html":"/opinions/full_commission-H000399-2023-04-19","pdf":"https://labor.arkansas.gov/wp-content/uploads/Gregg_Glenn_H000399_20230419.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/"}}