{"id":"full_commission-H101867-2023-09-20","awcc_number":"H101867","decision_date":"2023-09-20","opinion_type":"full_commission","claimant_name":"Thurn Apple","employer_name":"White River Agency On Aging, Inc","title":"APPLE VS. WHITE RIVER AGENCY ON AGING, INC. AWCC# H101867 SEPTEMBER 20, 2023","outcome":"granted","outcome_keywords":["granted:2","denied:1"],"injury_keywords":["back","hip","cervical","shoulder","rotator cuff","knee","fracture"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/Apple_Thurn_H101867_20230920.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Apple_Thurn_H101867_20230920.pdf","text_length":11997,"full_text":"NOT DESIGNATED FOR PUBLICATION \n \nBEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \nCLAIM NO.  H101867\n \n \nTHURN K. APPLE, EMPLOYEE  CLAIMANT \n \nWHITE RIVER AGENCY ON AGING, INC., \nEMPLOYER RESPONDENT \n \nAGING SERVICES FUND/ \nRISK MANAGEMENT RESOURCES, CARRIER/TPA RESPONDENT \n \nOPINION FILED SEPTEMBER 20, 2023 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE LAURA BETH YORK, Attorney \nat Law, Little Rock, Arkansas. \n \nRespondents represented by the HONORABLE MELISSA WOOD, Attorney \nat Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Affirmed and Adopted. \n \nOPINION AND ORDER \n The claimant appeals and the respondents cross-appeal an opinion \nand order of the Administrative Law Judge filed May 2, 2023.  In said order, \nthe Administrative Law Judge made the following findings of fact and \nconclusions of law: \n1. The Arkansas Workers’ Compensation Commission has jurisdiction \nover this claim. \n \n2.  An employer / employee relationship existed on or about February 8, \n2021,  and  at  all  relevant  times,  when  the  claimant  sustained  a \ncompensable injury in the form of a fractured sacrum.  \n\n \nAPPLE - H101867   2\n  \n \n \n3.  The  claimant  earned  an  average  weekly  wage  of  $398.40  with  a \ntemporary total disability / permanent partial disability rates of $216.00 \n/ $200.00, respectively. \n \n4.  That the claimant has been assigned a five percent (5%) rating to the \nbody as a whole, which has been accepted by the respondents. \n \n5.  That the claimant has failed to satisfy the required burden of proof that \nshe is entitled to permanent and total disability but, in the alternative, \nhas satisfied the required burden of proof, by a preponderance of the \nevidence, that she is entitled to an Award of wage-loss in the amount \nof five percent (5%).  \n \n6. The claimant is entitled to attorney’s fees pursuant to Ark. Code Ann. \n§11-9-715. This Award shall bear interest at the legal rate pursuant to \nArk. Code Ann. §11-9-809. \n \n7.  If not already paid, the respondents are ordered to pay for the cost of \nthe transcript forthwith. \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 May 2, 2023 \ndecision 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 of fact made by the \nAdministrative Law Judge are correct and they are, therefore, adopted by \nthe Full Commission.  \n\n \nAPPLE - H101867   3\n  \n \n \n Therefore we affirm and adopt the decision of the Administrative Law \nJudge, including all findings and conclusions therein, as the decision of the \nFull Commission on appeal.  \n IT IS SO ORDERED. \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner \n \n \n \nCommissioner Mayton dissents. \n \nDISSENTING OPINION \nI must respectfully dissent from the Majority’s determination that the \nclaimant is entitled to a five percent (5%) award for wage loss. \nDisability is defined under Arkansas law as the \"incapacity because \nof compensable injury to earn, in the same or other employment, the wages \nwhich the employee was receiving at the time of the injury.\"  Ark. Code Ann. \n§ 11-9-102(5).  The wage-loss factor is the extent to which a compensable \ninjury affects a person's ability to earn a livelihood.  Rice v. Ga.-Pacific \nCorp., 72 Ark. App. 148, 35 S.W.3d 328 (2000).  Wage-loss disability is to \nbe determined from a consideration of the medical evidence, together with \n\n \nAPPLE - H101867   4\n  \n \n \nthe other elements such as the injured worker's age, education, experience, \nand other matters affecting wage loss, including the claimant's motivation to \nreturn to work.  Id.  If a work-related injury combines with a preexisting \ndisease or condition or the natural process of aging to cause or prolong the \ndisability or need for treatment, permanent benefits shall be payable for the \nresultant condition only if the compensable injury is the major cause of the \npermanent disability or need for treatment.  Ark. Code Ann. § 11-9-\n102(4)(F)(ii)(a).  Major cause means more than fifty percent (50%) of the \ncause.  Ark. Code Ann. § 11-9-102(14)(A). \nIn the present case, the claimant is a sixty-eight (68) year-old woman \nwith an eleventh-grade education prior to obtaining her GED.  (Hrng. Tr., P. \n6).  The claimant had over twenty years of experience working on the \nassembly line at a shirt factory in Mountain View prior to purchasing and \noperating a grocery store with her husband for ten years before ultimately \nselling and returning to the assembly line.  (Hrng. Tr., Pp. 7-8).  At one \npoint, the claimant was working four jobs simultaneously, ultimately quitting \none to have time for sleep.  (Hrng. Tr. P. 11).  After an on-the-job fall with \none employer in 2005, the claimant had surgery on her back.  (Hrng. Tr., \nPp. 11-12, 15).  Bolts and screws from this surgery remain in place and the \nclaim was ultimately settled for $30,000.00.  (Hrng. Tr., Pp. 38-39).  The \n\n \nAPPLE - H101867   5\n  \n \n \nclaimant began working for the respondent employer in 2013 until she \nsuffered an admittedly compensable fractured sacrum on February 8, 2021. \n(Hrng. Tr, Pp. 13-14). \nThe claimant has multiple pre-existing conditions contributing to her \nallegations that she is unable to work.  Prior to her work-related injury, the \nclaimant treated for multiple conditions, including left hip pain, type 2 \ndiabetes with diabetic polyneuropathy, chronic kidney disease, piriformis \nsyndrome of the left side, chronic pain syndrome, hip osteoarthritis, hand \nosteoarthritis, fibromyalgia, cervical degenerative disc disease, right \nshoulder arthropathy, hypertension, right shoulder rotator cuff tear or \nrupture, pain in left shoulder, arthritis of the knee, and bilateral sacroiliitis \namong many other medical issues and complaints.  (Resp. Ex. 1, Pp. 23-\n28).  On July 20, 2020, the claimant was treated for left knee and hip pain \nby her family physician, Dr. Eric Spann.  (Resp. Ex 1, P. 32).  Later, on July \n22, 2020, a note from Fletcher Chiropractic reflects that the claimant treated \nfor left-side low back pain with no accident or injury reported.  (Resp. Ex. 1, \nP. 35).  Dr. Spann ultimately referred the claimant to physical therapy for \nhip and low back pain after a September 21, 2020 visit.  (Resp. Ex. 1, Pp. \n36-37).  According to Dr. Charles Varela in his report dated February 8, \n2021, the claimant was evaluated by John Hilvert, physical therapist, on \n\n \nAPPLE - H101867   6\n  \n \n \nSeptember 28, 2020 for left-sided low back pain which she had for \napproximately five months prior to her work injury.  Dr. Varela went on to \nstate that at the time the claimant was seen by the physical therapist she \nhad complained of paresthesia of the left lower extremity, transient \nweakness, and significant limitations secondary to pain.  She complained of \nthese issues when she saw Dr. Varela.  (Resp. Ex. 1, P. 43). \nImportantly, the claimant’s compensable sacral fracture had resolved \nby June 2022.  The claimant was seen by Dr. Varela on June 27, 2022, who \nopined that his impression of claimant’s condition was “1. Status post \nprobably S3 sacral fracture, acute, work related, resolved.  2. Chronic \nmechanical low back pain with symptoms not justified by objective findings, \nnot related to work injury.”  (Resp. Ex. 1, Pp. 43-45).  In fact, Dr. Varela was \nof the opinion that: \n[b]ased on physical examination and \nreview of records, it appears that the \npatient sustained a fracture of the sacrum \nat the L4-5 level. Based on examination \ntoday and because the patient does not \nhave tenderness over the area of the \nsacral fracture, this fracture has resolved \nand there is no evidence that this would \nbe a continuing source of the patient’s \npain. Therefore, this injury has reached \nmaximum medical improvement (MMI), \nand the patient is released without \nimpairment or restriction from this injury. \n\n \nAPPLE - H101867   7\n  \n \n \nIn addition, the patient has chronic low \nback pain.  She has a long previous \nhistory of low back pain which is not \nrelated to her work injury.  This is best \ndocumented on a note by the physical \ntherapist John Hilvert on 9/28/2020, as \nwell as 10/5/2020, where she is noted to \nhave essentially the same symptoms of \nleft-sided low back pain with lower \nextremity numbness and weakness as \nshe complains of after her work injury. \n \nIt is because of her chronic low back pain, \nas well as this patient’s age, and general \nphysical conditioning, that I would place \nwork restrictions on this patient.  The \npatient can return to work with 25-lb \nweight restriction.  If she cannot tolerate \nthis type of work without restriction, the \npatient may need to consider other types \nof employment that are physically less \ndemanding.  However, again, this would \nbe secondary to non-work-injury related \nfactors.  Id. \n \n After obtaining a change of physician order through the Commission, \nDr. Luke Knox evaluated the claimant on September 15, 2022, finding that: \nI do not believe that there are any further \nmedical treatment and/or additional \ndiagnostic tests directly recommended \nand/or necessary associated with the \nsacral fracture and/or low back injury and \ncomplaints. \n \n\n \nAPPLE - H101867   8\n  \n \n \nSecondly, I agree with Dr. Varela that Ms. \nApple is at maximum medical \nimprovement. I do not believe there are \nany other treatment options available. \n(Resp. Ex. 1, P. 53).  \n \nDr. Knox assigned a 5% permanent impairment rating to the claimant’s \nbody as a whole but did not provide any work restrictions.  Id. \n As to the question of whether there was work available for the \nclaimant within her restrictions, it is clear that both the respondent employer \nand other area employers could provide ample work for the claimant.  Prior \nto being released to full duty, office coordinator Misty Glenn testified that \nthe respondent was offered light duty, but that the claimant stated she could \nnot complete them and “pretty much dusted and answered the phone.” \n(Hrng. Tr., Pp. 47-48, 51).  The claimant was transferred to another area \nafter telling coworkers that she “just basically gets paid to do nothing.” \n(Hrng. Tr., P. 48).  Further, a report from vocational counselor, Keondra \nHampton, identifies multiple job openings in the claimant’s area making at \nleast her average weekly wage of $398.40.  (See Resp. Ex. 2).  Although \nthe ALJ determined that the claimant had made some effort and “at least \nlooked for available work,” it is clear that the claimant waited three months \nto do so until just prior to the hearing.  (Op., Pp. 17-18; Hrng. Tr., Pp. 43-\n44). \n\n \nAPPLE - H101867   9\n  \n \n \n Based on the facts at hand, the claimant is unable to meet the \nrequirements to be entitled to wage loss disability.  The claimant has a long \nhistory of chronic pain unrelated to her work-related injury on February 8, \n2021, and her providers agree that she has no ongoing issues resulting \nfrom this injury that would impact her ability to gain meaningful employment. \nIn fact, the record reflects a disinterest in doing so.  The only restrictions on \nthe claimant’s ability to work are all related to her long-standing pre-existing \nproblems which are unrelated her on-the-job injury.  None of the claimant’s \ntreating physicians have placed any restrictions on her work activities \nrelated to her compensable injury on February 8, 2021.  The claimant has \nfailed to meet her burden of proving by a preponderance of the evidence \nthat she is entitled to a 5% wage loss award above her 5% anatomical \nrating. \nFor the reasons stated above, I respectfully dissent. \n  \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner","preview":"NOT DESIGNATED FOR PUBLICATION BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H101867 THURN K. APPLE, EMPLOYEE CLAIMANT WHITE RIVER AGENCY ON AGING, INC., EMPLOYER RESPONDENT AGING SERVICES FUND/ RISK MANAGEMENT RESOURCES, CARRIER/TPA RESPONDENT OPINION FILED SEPTEMBER 20, 2023 Upon review before the FU...","fetched_at":"2026-05-19T22:29:46.143Z","links":{"html":"/opinions/full_commission-H101867-2023-09-20","pdf":"https://labor.arkansas.gov/wp-content/uploads/Apple_Thurn_H101867_20230920.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/"}}