Emergency Ambulance Servs. v. Pritchard, CV-16-103

• Decision Date: 31 August 2016
• Docket Number: No. CV-16-103,CV-16-103
• Citation: 498 S.W.3d 774,2016 Ark. App. 366
• Parties: Emergency Ambulance Services, Appellant v. David Pritchard, Appellee
• Court: Arkansas Court of Appeals

2016 Ark. App. 366

498 S.W.3d 774

Emergency Ambulance Services, Appellant

v.David Pritchard, Appellee

No. CV-16-103

Court of Appeals of Arkansas, DIVISION III.

Opinion Delivered August 31, 2016

Michael E. Ryburn, Little Rock, for appellants.

Gary Davis, for appellee.

RITA W. GRUBER, Judge

Emergency Ambulance Services brings this appeal from the decision of the Arkansas Workers' Compensation Commission (Commission) that awarded a forty percent permanent impairment rating to David Pritchard, a paramedic supervisor for appellant. Appellant challenges the sufficiency of the evidence to support the award, arguing that the Commission ignored pertinent case law and improperly relied on an impairment rating that was based on subjective complaints and testing. We affirm.

An injured employee is entitled to compensation for the permanent functional or anatomical loss of use of the body as a whole whether his earning capacity is diminished or not. Wayne Smith Trucking, Inc. v. McWilliams , 2011 Ark. App. 414, at 13, 384 S.W.3d 561, 568. “Permanent impairment” is “any permanent functional or anatomical loss remaining after the healing period has ended.” Thompson v. Mountain Home Good Samaritan Vill. , 2014 Ark. App. 493, at 8, 442 S.W.3d 873, 879. Under Arkansas Code Annotated § 11–9– 102(4)(F)(ii) (Repl. 2012),

(a ) Permanent benefits shall be awarded only upon a determination that the compensable injury was the major cause of the disability or impairment.

(b ) If any compensable injury combines with a preexisting disease or condition or the natural process of aging to cause or prolong disability or a need for treatment, permanent benefits shall be payable for the resultant condition only if the compensable injury is the major cause of the permanent disability or need for treatment.

Mr. Pritchard suffered a compensable injury to his right wrist on April 15, 2014, while performing chest compressions on a patient being transported to a hospital. The ambulance driver slammed on the brakes, causing Mr. Pritchard's right hand and arm to become trapped and twisted by a strap securing the patient to the gurney. Mr. Pritchard received medical treatment in the hospital's emergency room and was seen by orthopedic surgeon Dr. Richard Wirges on April 29, 2014. Dr. Wirges observed that Mr. Pritchard was right-hand dominant and presented with “a lot of pain and swelling.” Dr. Wirges dictated the following notes:

He felt pops immediately on the radial and ulnar side of his wrist. He was treated conservatively at first .... Unfortunately, he just has not gotten any better. He had an MRI that showed he has radiocarpal arthritis with also some arthritic changes consistent with possible ulnar abutment syndrome on the ulnar side and some cystic changes in the bone but no obvious tears of any structure. At this point though his hand is very painful and very sore. He has swelling. He has stiffness. It is already going into his fingers. He does occasionally have a little bit of numbness and tingling, although it is minimal. He states that when the injury first happened, immediately his thumb went numb. That has improved a little bit.

Occasionally he has a little burning electricity but not much. It is mostly a throbbing pain.... No signs of compartment syndrome. There are soft tissue changes that are different from the contralateral side. It is very sensitive even to light touch. X-rays do show a little bit of osteopenic changes. He does have the radiocarpal arthritis and I wonder if this is not from possibly an old scapholuntate interosseous ligament tear, but there is no major DISI deformity on the lateral film. He also has a little bit of ulnar positive variation that would be consistent with the possible ulnar abutment syndrome.... [H]e had no symptoms prior to the injury though. Now he has symptoms and clinically the patient is concerning [sic] not only for all of these soft tissue changes but also for the possibility of RSD/chronic regional pain syndrome.

After diagnosing “right-wrist blunt trauma with soft tissue musculoskeletal symptoms as well as neurologic concern for reflex sympathetic dystrophy /chronic regional pain syndrome,” Dr. Wirges ordered an MR arthrogram and a three-phase bone scan.

Dr. Wirges noted at a May 6, 2014 return visit that the bone scan and arthrogram showed inflammatory changes. The arthrogram showed a torn “lunotriquetral ligament [and] TFCC with concern for widening of the DRUJ,¹ ” along with “a lot of soft tissue ligament tears and contrast going into the midcarpal joint as well as the DRUJ.” It also showed a partial tear with severe tendonosis of the ECU tendon and marked synovial thickening with “some chronic arthritic change there that definitely would have been made worse because of this injury and now looks more significant with inflammation.” Dr. Wirges stated that although the bone scan did not show a “classic picture” for RSD, there was a very high risk for it. He noted that some symptoms remained, but immobilization, Neurontin, and vitamin C had helped; that the hand looked better and the swelling had improved; that pain was still an issue but improving; and that Mr. Pritchard had done everything he had been asked to do. Dr. Wirges planned surgical exploration and stabilization in the form of possible ligament repairs, salvage procedures, or reconstruction. Again noting that Mr. Pritchard previously had been without pain or symptoms in the wrist, Dr. Wirges stated “all this” was directly related to Mr. Pritchard's injury, that he was still at risk for RSD, and that close monitoring was required.

Dr. Wirges wrote in a May 11, 2014 letter that Mr. Pritchard's “last chart note as well as reports from his MRI and CT scan findings” showed “several injuries in his wrists ” [sic]. Dr. Wirges stated that there were “several injuries to that wrist that need to be repaired, ... subluxation of his carpal bones, and ... this is something that is absolutely related to the injury and without repair will absolutely deteriorate and cause him more problems in the future.” Dr. Wirges added that he was “baffled” that coverage was being denied, and he opined that approval should be given “sooner rather than later ... in the best interests of the patient and his outcome.”

Surgery was ultimately approved and was performed on June 10, 2014. Surgical notes describe the procedure as right wrist exploration with partial wrist denervation, excision of the posterior interosseous nerve; right wrist synovectomy ; right distal radioulnar joint reconstruction using free tendon graft ; harvest of free tendon graft from partial thickness of the flexor carpi radialis tendon, ipsilateral arm; right lunotriquetral ligament repair; and right lunotriquetral fusion with hardware. A week later, Dr. Wirges's clinic note reflects that swelling was present and that, although not approved by workers' compensation, Mr. Pritchard was taking vitamin C for prevention of RSD, a development that would be “devastating.” Swelling, range of motion, hypersensitivities, color, and pain levels had improved at two weeks. Swelling, motion, and overall appearance had improved at three months; Mr. Pritchard could grasp a mustard bottle; his motion and strength were limited; strengthening exercises could be started; and pain, although improved, remained unresolved. Fusion never occurred. At four months, Dr. Wirges wrote that after “right wrist DRUJ reconstruction with ... lunotriquetral ligament repair and a screw placed ... for an attempted fusion,” the patient was “neurovascular grossly intact with the exception of numbness in the median nerve distribution area”—which was waking him at night.

On December 16, 2014, six months after surgery, Dr. Wirges wrote that Mr. Pritchard had “plateaued in his improvements,” was at maximum medical improvement (MMI), and did not want additional surgical treatment despite the risk for arthritis from posttraumatic changes and the possible need for “additional treatment in the future.” On December 19, 2014, Dr. Wirges assigned the permanent impairment rating as follows:

Based on the American Medical Association guides to the evaluation of permanent impairment fourth edition, this is his impairment rating: Due to sensation loss of the right thumb, index finger, and long finger, the patient has a 36% hand impairment. Due to the loss of motion of his wrists, he has an 8% upper extremity impairment. Using table 2 on page 3119, we see a 36% hand impairment is equal to a 32% upper extremity impairment. This is then added to the a percent [sic] upper extremity impairment from loss of motion of his wrists giving him a total of 40% right upper extremity impairment. Table 3 on page 3120 shows a 40% upper extremity impairment is equal to a 24% whole person impairment.

Mr. Pritchard, who was fifty-three years old at the time of the hearing before the administrative law judge, testified about the delay in approval for surgery and about subsequent concern for RSD and ongoing problems with his wrist and arm. He testified that his medications included one for pain. He said that he had participated in fifteen weeks of extensive physical therapy, received an injection in his wrist, and returned to work in patient transport wearing a compression wrap while “on the truck.” He said that he still wore a splint at night, the swelling had never gone down despite “steroids and everything else,” there were recent problems with his arm, and there were many things he could not do:

I cannot do chest compressions like I used to because of a lack of mobility in my hand. There

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