BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION

CLAIM NO. G702819

STEVEN E. LEPINE, CLAIMANT EMPLOYEE

WHITMORE FERTILIZER COMPANY, INC., RESPONDENT NO. 1 EMPLOYER

AG-COMP SIF CLAIMS, RESPONDENT NO. 1 INSURANCE CARRIER/TPA

DEATH & PERMANENT TOTAL DISABILITY RESPONDENT NO. 2 TRUST FUND

OPINION FILED SEPTEMBER 23, 2020

Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.

Claimant represented by the HONORABLE GARY DAVIS, Attorney at Law, Little Rock, Arkansas.

Respondents No. 1 represented by the HONORABLE GUY A. WADE, Attorney at Law, Little Rock, Arkansas.

Respondents No. 2 represented by the HONORABLE CHRISTY L. KING, Attorney at Law, Little Rock, Arkansas.

Decision of Administrative Law Judge: Affirmed in part, reversed in part.

OPINION AND ORDER

The claimant appeals and the respondents cross-appeal an administrative law judge’s opinion filed February 12, 2020. The administrative law judge found that the claimant proved he sustained a deviated septum as a result of his compensable injury. The administrative law judge found that the claimant was not entitled to a permanent impairment rating for the deviated septum. The administrative law judge LEPINE – G702819 2

found that the claimant may return to Dr. Colclasure to discuss additional treatment options.

After reviewing the entire record de novo, the Full Commission affirms the administrative law judge’s finding that the claimant sustained a deviated septum as a result of the compensable injury. The Full

Commission finds that the claimant proved he sustained permanent anatomical impairment in the amount of 8% as a result of the deviated septum. The Full Commission reserves the issue of additional medical treatment in accordance with Ark. Code Ann. §11-9-508(a)(Repl. 2012).

I. HISTORY

Steven Lepine, now age 41, testified that he became employed with the respondents, Whitmore Fertilizer Company, in about 2009. The parties stipulated that the employee-employer-carrier relationship existed on April

19, 2017. The claimant testified that he was working for the respondents that day as a Field Consultant. The claimant testified on direct examination:

Q. So tell us what happened in April of 2017 when you got hurt? A. I had started my job as a Field Consultant with Whitmore Fertilizer Company….My field consultant work hadn’t picked up at the time, so I was applicating fertilizer the day that I was injured – had the accident. Q. Okay. All right. Tell us about the accident. A. I was headed toward St. Charles to my next field that I was going to applicate – fertilize. I went to make a left-hand turn. I had my blinker on. I checked my mirrors. I checked the backup camera in the machine. I seen a semitruck behind me, so it was behind me. I made a left-hand turn, and I never

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seen the semitruck that come around the semitruck that was behind me that struck me right behind the cab. So I was making a left-hand turn, and the semitruck come behind me, passing in the other lane, and struck me in the right side. Q. Okay. Now, as a result of the accident you had a lot of injuries? A. Yes.

The parties stipulated that the claimant “sustained compensable injuries (head, shoulder, back, knees)” in the April 19, 2017 motor vehicle accident. According to the record, the claimant treated at UAMS on April

19, 2017 at which time it was reported, “Mechanism of injury: motor vehicle crash. Injury location: shoulder/arm and face. Injury location detail: nose, lip and face and L shoulder.” A physical exam indicated, “Nose: Nasal deformity and swelling with multiple nasal lacerations, active venous bleeding from L nostril[.]”

A CT of the maxillofacial area was taken on April 19, 2017 with the impression, “Extensively comminuted fractures involve both nasal bones, anterior nasal septum, and anterior maxillary process. There is extensive overlying medial soft tissue swelling and laceration of the external nasal structures with scattered areas of embedded radiopaque debris. Extensive hemosinus throughout the paranasal sinuses.” A CT maxillofacial was taken on April 21, 2017. The findings included, “Right lateral bony nasal septal deviation is demonstrated.” The impression was “1. Acute post- traumatic fracture deformities of the bilateral nasal bones and anterior nasal

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spine and small penetrating soft tissue foreign bodies along the left premaxillary soft tissues. 2. Air-fluid levels within the bilateral maxillary and left sphenoid sinuses.”

An MR of the claimant’s left shoulder on May 24, 2017 showed, among other things, a “posterior superior labral tear.” The claimant began treating with Dr. Eric Gordon for the compensable left shoulder injury.

The parties stipulated that the Commission’s Medical Cost

Containment Division approved a Change of Physician from Dr. Vaughn to

Dr. J. Chris Colclasure. The claimant began treating with Dr. Colclasure on

May 24, 2017:

Soft tissue injuries to the nose and nasal bones. He had multiple lacerations. He comes with a CT scan of the facial bones. He has a tiny nasal fracture with no significant displacement. He has some foreign material (likely glass in the facial soft tissues). I have reviewed his CT facial bones. I reviewed these images – incidental osteoma left superior orbital rim. No surgery needed to date. Still some numbness of the nose and left midfacial region. The injury was 4/19/17…. Relevant Physical Findings: Multiple healing facial lacerations and nasal soft tissue lacerations. He has relative good bony symmetry. The lacerations are multiple and complex, still some erythema – no palpable obvious foreign body. Some septal deviation to the left…. PLAN: At this point we need to follow his facial lacerations conservatively. These may require intervention down the road – at this point it is too early to tell. His nasal fracture requires no intervention but he may require septoplasty down the road if his congestion does not settle down.

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I encouraged him that his audiogram is normal overall today. Return in six months. He has a left calvarial osteoma of the left supraorbital rim – I reviewed his film with Dr. Peeples with neuroradiology – this lesion is smoothy marginated, not expansible and appears benign – this can be followed with a repeat CT in one year.

Dr. Colclasure’s impression on May 24, 2017 included “Deviated nasal septum.”

The record indicates that Dr. Gordon performed a “Left shoulder arthroscopy – rotator cuff repair and debridement” on September 11, 2017.

The claimant followed up with Dr. Colclasure on November 10, 2017.

Dr. Colclasure examined the claimant and noted “Nasal Cavity: marked septum to the left.” Dr. Colclasure planned, “His septum is off to the left – most likely secondary to his facial injury as he did not have issues with left sided nasal congestion prior to the injury. Consider septoplasty and we discussed what this involves and the risks, benefits, and alternatives to the procedure. He would like to proceed. Repeat CT facial bones this spring.

Flonase trial to help with his congestion.”

Dr. Jim English reported on November 29, 2017:

This 38 year old male was involved in [an] MVA April 19, 2017 and sustained wounds of his left cheek, the tip of his nose, avulsion of his left alar foot, fracture of the nasal septum, the nasal bones, the anterior maxillary process with blood noted in his scans within his sinuses. He also had shards of glass noted in his soft tissue.

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The patient was triaged and initially repaired at UAMS with suturing of his left alar rim, etc. He was seen in follow-up by Dr. Chris Colclasure and given additional appointments over the course of the year. He was then referred to this clinic for a second opinion and surgical options. On examination, Steven was found to have healing scars of the left cheek, the left alar rim and the tip of his nose. He had asymmetry of his nostrils possibly secondary to the previous left alar foot laceration. The patient had a deviated septum to the right with a left shift to his maxillary crest. Also detected was a small fracture of his nasal sidewall with his initial insult. The findings were shared with both he and his parents as was his recommendations to include: 1) a surgical septoplasty with a columellar strut, 2) serial dermabrasions of his nasal tip, left cheek and left alar foot and 3) follow up for at least one year for potential injections of steroids, 5) F/U for swelling and scar formation, etc….

Dr. Colclasure stated on December 19, 2017, “In regards to your request Mr. Lepine may in the future require further surgery including revision of his facial scars and/or septoplasty. It is difficult to provide an exact cost, but I suspect that this would cost approximately a maximum of

$10,000.”

Dr. Gordon reported on January 23, 2018, “Patient has reached the point of Maximum Medical Improvement. Based upon the objective measures taken today and the American Medical Association guidelines to evaluation of permanent impairment, fourth edition patient has sustained a

6% impairment to the left upper extremity which translates to a 4% impairment to the whole person. Regular work duties, no restrictions.

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Follow-up as needed.” The parties stipulated that the respondents accepted the 4% impairment rating assessed by Dr. Gordon.

Dr. Colclasure signed a “Physician’s Statement” on March 15, 2018.

Dr. Colclasure opined that the claimant had sustained an 8% whole-person impairment rating based on the 4th Edition of the Guides to the Evaluation of

Permanent Impairment. Dr. Colclasure wrote that the following “objective and measurable findings” supported the permanent impairment rating:

“facial scars, deviated nasal septum [with] nasal airway obstruction.”

A CT of the facial bones on April 4, 2018 showed, among other things, “Mild rightward septal deviation” in the claimant’s nasal cavity. The claimant followed up with Dr. Colclasure on April 4, 2018: “Doing well overall. I reviewed his CT scan. His left frontal osteoma is stable….Nasal

Cavity: marked septum to the left.” Dr. Colclasure’s impression was

“Deviated nasal septum. Fracture of nasal bones, subsequent encounter for fracture with routine healing. Maxillary fracture, left side, initial encounter for closed fracture. Osteoma.” Dr. Colclasure planned, “He is doing well. This osteoma is stable and I do not think this requires further imaging. From this point he will return as needed.” The claimant agreed on cross-examination that he had not treated with Dr. Colclasure since April 4,

2018.

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A pre-hearing order was filed on September 25, 2019. The claimant contended, “Claimant contends that admitted compensable injuries were sustained 4/19/17. Claimant contends he sustained impairment of 4% to the body as a whole in connection with a shoulder injury and 8% to the body as a whole in connection with a deviated septum and facial scaring

(sic). Respondents payment records indicate they have paid $12,428 in permanent impairment benefits. The total for impairment to be paid should have been $25,784. Claimant contends $14,356 in benefits is due and owing and has been controverted.” The respondents contended,

“Respondents No. 1 contend that any additional ppd rating is not applicable and claimant is not entitled to any more benefits. In addition to the 4% PPD rating which was paid, the respondents also paid the $3,500 for facial scarring as set out by statute. Any other benefits claimed are not a part of this work injury but pre-existed. Claimant’s claim should be dismissed with prejudice.”

The text of the pre-hearing order indicated, “By agreement of the parties, the issues to be litigated at the hearing are limited to the following: additional permanent partial disability benefits and attorney’s fees. All other issues are reserved.”

The claimant’s attorney corresponded with Dr. Colclasure on

September 26, 2019:

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We represent the above patient in connection with injuries sustained on the job on 4/19/17. Enclosed for your convenience [is] a copy of [your] 3/15/18 “Physician’s Statement” in which you rendered an impairment of 8% to the body as a whole. The Administrative Law Judge involved in Mr. Lepine’s workers’ compensation claim has asked us to obtain clarification from you as to references (pages/tables) in the AMA Guides to the Evaluation of Permanent Impairment, 4th Edition, which you used in order to arrive at the 8% body as a whole impairment rating. I am enclosing for [you] Chapter 9 of the AMA Guides, 4th Edition. Assuming that you were looking at page 229, we obviously await your advice as to your specific references. A short note from you addressing this inquiry would be most appreciated. We look forward to hearing from you regarding the above….

Dr. Colclasure wrote on the correspondence, “Class 2 → involves supporting structure of face. Nasal septum is a supporting structure.

Therefore, Class 2 impairment.”

A hearing was held on November 20, 2019. The claimant testified that he was employed with the respondents as an Operator, which position entailed driving a fertilizer truck. The claimant testified that he suffered from difficulty breathing after the motor vehicle accident. The claimant testified that he had not undergone surgery from Dr. Colclasure.

An administrative law judge filed an opinion on February 12, 2020.

The administrative law judge found that the claimant proved he sustained a deviated septum in the motor vehicle accident, but that the claimant was not entitled to a permanent impairment rating for the injury. The administrative law judge found that the claimant “may return to Dr. Colclasure to discuss

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the deviated septum and treatment options.” The claimant appeals to the

Full Commission and the respondents cross-appeal.

II. ADJUDICATION

A. Compensable Consequence

If an injury is compensable, then every natural consequence of that injury is also compensable. Hubley v. Best Western Governor’s Inn, 52 Ark.

App. 226, 916 S.W.2d 143 (1996). The basic test is whether there is a causal connection between the two episodes. Jeter v. B.R. McGinty

Mechanical, 62 Ark. App. 53, 968 S.W.2d 645 (1998). Whether there is a causal connection is a question of fact for the Commission. Id.

An administrative law judge found in the present matter, “2. The claimant has proven by a preponderance of the credible evidence that he sustained a deviated septum in the compensable motor vehicle accident.

The trauma to the nose was significant enough to produce multiple injuries to the nose and face.” The Full Commission finds that the claimed proved he sustained a deviated septum as a natural consequence of his compensable injury.

The parties stipulated that the claimant sustained compensable injuries to his head, shoulder, back, and knees in a work-related motor vehicle accident occurring on April 19, 2017. The claimant testified that his vehicle was hit by an oncoming semi-truck. The claimant was treated at

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UAMS on April 19, 2017. It was reported that the claimant’s injuries included a “nasal deformity.” A CT on April 19, 2017 showed “Extensively comminuted fractures involve both nasal bones, anterior nasal septum

[emphasis supplied], and anterior maxillary process.” A CT on April 21,

2017 demonstrated “Right lateral bony nasal septal deviation.” Dr.

Colclasure’s physical findings on May 24, 2017 included “Some septal deviation to the left.” Dr. Colclasure’s impression included “Deviated nasal septum.”

Dr. Colclasure examined the claimant on November 10, 2017 and reported “Nasal cavity: marked septum to the left….His septum is off to the left – most likely secondary to his facial injury as he did not have issues with left sided nasal congestion prior to the injury [emphasis supplied].” Dr.

English examined the claimant on November 29, 2017 and confirmed “a deviated septum.” A CT of the claimant’s facial bones on April 4, 2018 showed, among other things, “Mild rightward septal deviation.” Dr.

Colclasure’s impression on April 4, 2018 was “Deviated nasal septum.”

The Commission has the authority to accept or reject a medical opinion and to determine its probative value. Poulan Weed Eater v.

Marshall, 79 Ark. App. 129, 84 S.W.3d 878 (2002). Based on the claimant’s treatment at UAMS, along with the post-accident diagnostic testing, the reports of Dr. Colclasure, and the report of Dr. English, the Full Commission

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finds that the claimant proved he sustained a deviated septum as a natural consequence of the April 19, 2017 compensable injury.

B. Anatomical Impairment

Permanent impairment is any functional or anatomical loss remaining after the healing period has been reached. Johnson v. Gen. Dynamics, 46

Ark. App. 188, 878 S.W.2d 411 (1994). The Commission has adopted the

American Medical Association Guides to the Evaluation of Permanent

Impairment (4th ed. 1993) to be used in assessing anatomical impairment.

See Commission Rule 34; Ark. Code Ann. §11-9-522(g)(Repl. 2012). It is the Commission’s duty, using the Guides, to determine whether the claimant has proved he is entitled to a permanent anatomical impairment.

Polk County v. Jones, 74 Ark. App. 159, 47 S.W.3d 904 (2001).

Any determination of the existence or extent of physical impairment shall be supported by objective and measurable physical findings. Ark.

Code Ann. §11-9-704(c)(1)(Repl. 2012). Objective findings are those findings which cannot come under the voluntary control of the patient. Ark.

Code Ann. §11-9-102(16)(A)(i)(Repl. 2012). Although it is true that the legislature has required medical evidence supported by objective findings to establish a compensable injury, it does not follow that such evidence is required to establish each and every element of compensability. Stephens

Truck Lines v. Millican, 58 Ark. App. 275, 950 S.W.2d 472 (1997). All that

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is required is that the medical evidence be supported by objective findings.

Singleton v. City of Pine Bluff, 97 Ark. App. 59, 244 S.W.3d 709 (2006).

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

Ark. Code Ann. §11-9-102(F)(ii)(a)(Repl. 2012). “Major cause” means

“more than fifty percent (50%) of the cause,” and a finding of major cause shall be established according to a preponderance of the evidence. Ark.

Code Ann. §11-9-102(14)(Repl. 2012). Preponderance of the evidence means the evidence having greater weight or convincing force.

Metropolitan Nat’l Bank v. La Sher Oil Co., 81 Ark. App. 269, 101 S.W.3d

252 (2003).

An administrative law judge found in the present matter, “5. The claimant is not entitled to a rating for the deviated septum as it is not mentioned in the AMA Guidelines or in Ark. Code Ann. §11-9-521, §11-9-

519 and §11-9-522. I am not aware of any case law on the subject and none has been cited.” The Full Commission does not affirm the administrative law judge’s finding that the claimant is not entitled to a permanent rating for the deviated septum. We find that the claimant proved he sustained a permanent anatomical impairment of 8% with regard to the deviated septum.

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As we have discussed, the parties stipulated that the claimant sustained compensable injuries to his head, shoulder, back, and knees in a work-related motor vehicle accident on April 19, 2017. The Full

Commission has affirmed the administrative law judge’s finding that the claimant proved he sustained a deviated septum as a natural consequence of the compensable injury. Dr. Colclasure signed a Physician’s Statement on March 15, 2018 and opined that the claimant had sustained an 8% whole-person impairment rating based on the 4th Edition of the Guides to the Evaluation of Permanent Impairment. Dr. Colclasure wrote that the following “objective and measurable findings” supported the permanent impairment rating: “facial scars, deviated nasal septum [with] nasal airway obstruction.” The parties stipulated that the respondents accepted “$3,500 for facial scarring.” The respondents contended that they “paid the $3,500 for facial scarring as set out by statute.” Nevertheless, the Commission has not awarded compensation for disability based on “permanent facial or head disfigurement” in accordance with Ark. Code Ann. §11-9-524(Repl.

2012).

Based on correspondence to him dated September 26, 2019, Dr.

Colclasure clarified the basis for his rating of 8% permanent anatomical impairment. Dr. Colclasure informed the claimant’s attorney, “Class 2 → involves supporting structure of face. Nasal septum is a supporting

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structure. Therefore, Class 2 impairment.” The Full Commission finds that the claimant proved he sustained permanent anatomical impairment in the amount of 8% in accordance with the deviated septum the claimant sustained as a result of the compensable injury. The 4th Edition of the

Guides plainly indicates on page 9/229 that a Class 2 Impairment of the whole person is supported when there is “loss of supporting structure of part of the face….Depressed cheek, nasal, or frontal bones constitute class

2 impairments.” There are a number of patent objective medical findings in the present matter supporting Dr. Colclasure’s assessment of an 8% permanent rating arising from a Class 2 Impairment in the 4th Edition of the

Guides. These objective findings include the post-injury diagnostic testing which showed a nasal deformity and fracture of the anterior nasal septum.

A CT on April 21, 2017 confirmed a “Right lateral bony nasal septal deviation” and Dr. Colclasure’s physical examination on May 24, 2017 showed a “Deviated nasal septum.” Dr. English agreed that the claimant had sustained a post-injury “deviated septum.” A CT of the facial bones on

April 4, 2018 demonstrated a “Mild rightward septal deviation.”

The Full Commission finds that the claimant proved by a preponderance of the evidence that he sustained an 8% permanent impairment rating for the deviated septum which the claimant sustained as a natural consequence of the compensable injury. The 8% rating is

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supported by the 4th Edition of the Guides at page 9/229, “Class 2:

Impairment of the Whole Person, 5% to 10%.” The 8% rating is supported by objective and measurable physical findings as described above. The

Full Commission finds that Dr. Colclasure’s medical opinion assessing 8% permanent impairment was stated within a reasonable degree of medical certainty in accordance with Ark. Code Ann. §11-9-102(16)(B)(Repl. 2012).

The claimant also proved that the compensable injury was the major cause of the 8% rating assessed by Dr. Colclasure. Dr. Colclasure informed counsel on or about September 26, 2019 that the 8% permanent impairment rating was based on the deviated nasal septum rather than facial scarring. The Commission has not awarded compensation for permanent facial disfigurement in accordance with Ark. Code Ann. §11-9-

524, and the respondents shall not be allowed to offset $3,500 from the

Commission’s award of 8% permanent anatomical impairment.

After reviewing the entire record de novo, the Full Commission finds that the claimant proved he sustained a deviated nasal septum as a natural consequence of the stipulated compensable injury. We find that the claimant proved he sustained permanent anatomical impairment in the amount of 8% as a result of the deviated nasal septum. The respondents are not entitled to an offset of this rating in accordance with Ark. Code Ann.

§11-9-524(Repl. 2012). The claimant proved that the medical treatment of

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record provided was reasonably necessary in accordance with Ark. Code

Ann. §11-9-508(a)(Repl. 2012). However, the pre-hearing order shows that the parties agreed to litigate only the issues of additional permanent partial disability benefits and fees for legal services. The parties expressly reserved all other issues, including additional medical treatment. Dr.

Colclasure last medical treatment of record took place on April 4, 2018, at which time Dr. Colclasure stated that the claimant would “return as needed.” Based on the record currently before us, therefore, the Full

Commission reserves the issue of additional medical treatment after April 4,

2018.

The claimant’s attorney is entitled to fees for legal services in accordance with Ark. Code Ann. §11-9-715(a)(Repl. 2012). For prevailing in part on appeal, the claimant’s attorney is entitled to an additional fee of five hundred dollars ($500), pursuant to Ark. Code Ann. §11-9-715(b)(Repl.

2012).

IT IS SO ORDERED.

______SCOTTY DALE DOUTHIT, Chairman

______CHRISTOPHER L. PALMER, Commissioner

______M. SCOTT WILLHITE, Commissioner