Evans, 012821 ARWC, G607380

Docket Nº:WCC G607380
Case Date:January 28, 2021
Court:Kansas
ALAN EVANS, Employee CLAIMANT
RICK MOONEY CONSTRUCTION, INC., Employer RESPONDENT
EMPLOYERS MUTUAL CASUALTY COMPANY, Carrier RESPONDENT
WCC No. G607380
Arkansas Workers Compensation
Before the Arkansas Workers' Compensation Commission
January 28, 2021
         Hearing before ADMINISTRATIVE LAW JUDGE AMY GRIMES in Fort Smith, Sebastian County, Arkansas; submitted on the record before ADMINISTRATIVE LAW JUDGE ERIC PAUL WELLS, in Fort Smith, Sebastian County, Arkansas.           Claimant represented by JARID M. KINDER, Attorney at Law, Ozark, Arkansas.           Respondents represented by CURTIS L. NEBBEN, Attorney at Law, Fayetteville, Arkansas.          OPINION           HONORABLE ERIC PAUL WELLS, ADMINISTRATIVE LAW JUDGE.          STATEMENT OF THE CASE          On October 27, 2020, the above captioned claim came on for a hearing at Fort Smith, Arkansas before Administrative Law Judge Amy Grimes. As Judge Grimes is no longer employed by the Commission, this claim has been assigned to this Administrative Law Judge for consideration on the record. A pre-hearing conference was conducted on May 28, 2020. An Amended Pre-hearing Order was filed on September 11, 2020. A copy of the Amended Pre-hearing Order has been marked Commission's Exhibit No. 1 and made a part of the record without objection.          At the pre-hearing conference the parties agreed to the following stipulations:
1.The Arkansas Workers' Compensation Commission has jurisdiction of this claim.
2.The employee/employer/carrier relationship existed among the parties on July 28, 2016.
3.The claimant sustained compensable bilateral shoulder injuries on July 28, 2016.
4.The claimant was earning sufficient wages to entitle him to the weekly rates of $646.00 for temporary total disability benefits and $485.00 for permanent partial disability benefits.
5. The claimant reached maximum medical improvement for his right shoulder injury on August 13, 2019 and was assessed a 4% permanent anatomical impairment rating to the body as a whole which has been paid. The 4% was related to the left shoulder.
         The issues to be litigated at the forthcoming hearing are as follows:
1. Claimant’s entitlement to additional medical treatment. Claimant’s contentions are:
“1. The claimant suffered a compensable bilateral shoulder injury on July 28, 2016 while working for the respondent, Rick Mooney Construction, Inc.
2.To date, the claimant has been experiencing numbness and tingling in both arms. Wesley Cox, M.D. recommended EMG testing on the claimant’s upper extremities for which the respondents are refusing to authorize.
3. Due to the controversion of entitled benefits, the respondents are obligated to pay one half of the claimant’s attorney’s fees.
4. Claimant reserves the right to raise additional contentions at the hearing of this matter, including a right shoulder rating.”
         Respondents’ contentions are:
“The respondents contend they have paid all benefits to which the claimant is entitled. The claimant was assessed a 4% permanent anatomical impairment rating to the body as a whole for his right shoulder injury by Dr. Cox which has been paid. The claimant underwent treatment for his left shoulder injury by Dr. Benafield who assessed no permanent anatomical impairment rating. The respondents contend based on the present medical evidence the claimant is not entitled to a permanent anatomical impairment rating for his left shoulder. The respondents contend that the claimant is not entitled to any wage loss benefits.”
         The claimant in this matter is a 51-year-old male who sustained compensable bilateral shoulder injuries on July 28, 2016. Following the claimant’s compensable bilateral shoulder injuries, he treated with Dr. Brian Benafield, which included diagnostic testing on both shoulders and surgical intervention on the claimant’s left shoulder on December 2, 2016. Following is a portion of the operative report authored by Dr. Benafield found at Joint Exhibit 1, Page 15:
PREOPERATIVE DIAGNOSIS: Left shoulder pain with possible superior labrum anterior to
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