Opinion
CV-23-30
03-13-2024
ARKANSAS DEPARTMENT OF CORRECTIONS APPELLANT v. TEREASA WASHINGTON APPELLEE
Charles H. McLemore Jr., for separate appellant Public Employee Claims Division. Joe M. Rogers, for appellee.
APPEAL FROM THE ARKANSAS WORKERS' COMPENSATION COMMISSION [NO. H008038] AFFIRMED.
Charles H. McLemore Jr., for separate appellant Public Employee Claims Division.
Joe M. Rogers, for appellee.
BART F. VIRDEN, JUDGE.
Appellee Tereasa Washington suffered a compensable injury-carpal tunnel syndrome (CTS)-to both of her wrists on August 6, 2020, while employed by appellant, Arkansas Department of Corrections (ADC). ADC appeals from the opinion and order of the Arkansas Workers' Compensation Commission awarding a 10% permanent anatomical impairment rating to each of Washington's wrists. ADC argues that there were no objective and measurable physical findings after surgery to support the ratings. We affirm.
I. Background
Washington began working for ADC in February 2017 as a mental-health advisor. Her job duties required her to make rounds on over 100 inmates three times a week and to type her reports. In August 2020, Washington began experiencing numbness and tingling in her arms. A neurologist suspected CTS and recommended that she obtain an NCS/EMG. Dr. Michael Chesser concluded after testing that Washington suffered moderate right CTS and mild left CTS. ADC accepted the injury as compensable, and Washington was initially treated conservatively for symptoms.
On October 26, 2020, Dr. Sean M. Morell performed a release on Washington's right wrist and gave her a steroid injection in her left wrist. After describing the actions taken during the surgery on the right wrist, Dr. Morell stated that
[t]he carpal tunnel was completely released at this point in time. It was noticed that the patient had a recurrent median artery. The nerve was inspected and found to be in good condition.
Dr. Morell found that Washington could return to full-duty work with no restrictions on December 18. Washington did return to work, and Dr. Morell found that she had reached maximum medical improvement (MMI) as to her right wrist on February 8, 2021.
On February 24, Dr. Morell performed a release on Washington's left wrist and noted as an operative finding "thickened TCL." On April 23, he found that Washington had improved greatly and had "a nice result" on her left hand. Dr. Morell wrote the following:
Patient has returned to full activity and has full improvement of carpal tunnel symptoms. She has a 0% Impairment Rating in my medical opinion and has reached maximum medical improvement.
On June 10, Washington requested, and was subsequently granted, a change of physician from Dr. Morell to Dr. Michael Hood. Dr. Hood examined Washington on June 29 and noted that she was experiencing symptoms including "pain, swelling, weakness, loss of grip strength, feelings of giving way, pain when using tools, pain with grip, pain with heavy or repetitive activity, and sleep disturbance." He noted that she had had surgeries on both upper extremities in connection with CTS and had been returned to work with no restrictions. In the medical record, Dr. Hood made several findings and noted: "positive Durkan's compression test, palmar tenderness, decreased sensation, medial nerve distribution." Dr. Hood recommended therapeutic exercises and manual therapy. He also gave Washington a referral to have a functional capacity evaluation, which she participated in on July 28. The results were that she had given a reliable effort and had demonstrated an ability to perform work in the medium classification.
On August 31, Dr. Hood reported the following:
Utilizing [the American Medical Association (AMA) Guides] to the evaluation of permanent impairment fourth edition, Chapter 3, table 32 average strength of grip by age and 100 subjects, table 34 upper extremity impairment for loss of strength; the patient has the following loss of strength in the dominant right hand 26% and nondominant left hand 17.8%.
Both percent strength loss index result in 10% upper extremity to each extremity.
10% left and 10% right upper extremity impairment each corresponds to 6% whole person impairment. Utilizing the combined values chart 6% whole person + 6% whole person equals 12% whole person impairment.
Therefore the patient's final impairment rating is 10% to the left upper extremity, 10% to the right upper extremity, or 12% to the whole person.
Dr. Morell was asked to give a second opinion regarding Washington's permanent impairment rating, but he declined, saying that Washington was "a very problematic patient," that she had not wanted to return to work, and that she had "continuously bombarded" his nurse with complaints by sending "feverish" emails throughout the day.
The administrative law judge (ALJ) found that Washington had failed to prove that she was entitled to a 10% impairment rating to her upper extremities because there were no objective findings to support such conclusion and because Dr. Hood had relied on subjective findings in determining Washington's impairment ratings. Furthermore, the ALJ afforded greater weight to the opinion of Dr. Morell than to that of Dr. Hood. Washington appealed to the Commission.
The Commission reversed the ALJ's decision. Unlike the ALJ, the Commission assigned minimal weight to Dr. Morell's opinion that Washington had suffered 0% impairment and attached greater weight to Dr. Hood's "expert application of the Guides" in determining that Washington had sustained a 10% permanent-impairment rating to each wrist. Referencing Ark. Code Ann. § 11-9-521(h) (Repl. 2012) and Commission Rule 34, the Commission noted that it has adopted the AMA Guides to the Evaluation of Permanent Impairment (4th ed. 1993). The Commission recognized that loss of strength is a subjective finding; however, the Commission found that Dr. Hood's ratings were supported by objective findings in Dr. Morell's surgery notes, specifically, the "recurrent median artery" revealed during the right release and the "thickened TCL" shown during the left release.
II. Standard of Review
On appellate review, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission's findings, and we affirm if the decision is supported by substantial evidence. La-Z-Boy Mfg., Inc. v. Bruner, 2016 Ark.App. 117, 484 S.W.3d 700. Substantial evidence exists if reasonable minds could reach the Commission's conclusion. Id. We will not reverse the Commission's decision unless fair-minded persons with the same facts before them could not have reached the Commission's conclusions. Id. The issue is not whether we might have reached a different result or whether the evidence would have supported a contrary finding; furthermore, we are bound by the Commission's determinations on issues of credibility. Id. Moreover, the Commission's decision to accept or reject medical opinions and how it resolves conflicting medical evidence has the force and effect of a jury verdict. St. Francis Cnty. v. Watlington, 2015 Ark.App. 497, 470 S.W.3d 684. It is the Commission's duty to use its experience and expertise in translating the testimony of medical experts into findings of fact. Id.
III. Permanent Impairment
Permanent impairment has been defined as any permanent functional or anatomical loss remaining after the healing period has ended. Allen v. Staffmark Invs., LLC, 2022 Ark.App. 252, 646 S.W.3d 646. Any determination of the existence or extent of physical impairment must be supported by objective and measurable findings. Ark. Code Ann. § 11-9-704(c)(1)(B) (Repl. 2012). "Objective findings" are those findings that cannot come under the voluntary control of the patient, and complaints of pain are not to be considered objective medical findings. Ark. Code Ann. § 11-9-102(16)(A)(i) (Repl. 2012). A claimant will not receive an award for permanent benefits unless the injury was the major cause of the disability or impairment. Ark. Code Ann. § 11-9-102(4)(F)(ii)(a). "Major cause" means more than 50% of the cause, which the claimant must establish by a preponderance of the evidence. Ark. Code Ann. § 11-9-102(14)(A); Ark. Forestry Comm'n v. Lindsey, 2021 Ark.App. 497, 638 S.W.3d 333.
IV. Discussion
ADC argues that, in assigning Washington a 10% impairment rating on each wrist, Dr. Hood specifically relied on loss of strength, yet he indicated in his reports that Washington's hand strength was "5/5, normal muscle tone." Moreover, ADC argues that loss of strength is an entirely subjective finding and points to language contained in the AMA Guides that strength measurements are functional tests influenced by subjective factors that are difficult to control, that the Guides does not assign a large role to such measurements, and that further research is needed before loss of grip and pinch strength is given a larger role in impairment evaluation. According to ADC, the Commission has confused objective findings for injury with objective findings required to support permanent impairment. ADC also contends that the operative findings relied on by the Commission "were the findings treated by the surgeon." ADC asserts that the Commission erred in translating the medical evidence, citing Johnson v. Peco Foods, Inc., 2022 Ark.App. 187.
The Commission is authorized to decide which portions of the medical evidence to credit and to translate this evidence into a finding of permanent impairment using the AMA Guides; thus, the Commission may assess its own impairment rating rather than rely solely on its determination of the validity of ratings assigned by physicians. Carrick v. Baptist Health, 2022 Ark.App. 134, 643 S.W.3d 466. Although ADC suggests that the Commission was constrained to look to only Dr. Hood's reports for objective findings to support his impairment rating, the Commission examines the entire record. Singleton v. City of Pine Bluff, 97 Ark.App. 59, 244 S.W.3d 709 (2006). The Commission properly recognized that loss of strength is a subjective finding but found that there were objective findings in the record to support the 10% impairment rating assigned by Dr. Hood, who had consulted the AMA Guides. In Wayne Smith Trucking, Inc. v. McWilliams, 2011 Ark.App. 414, 384 S.W.3d 561, we affirmed the Commission's decision that the claimant had sustained a 14% impairment rating because, although the doctor had noted subjective findings of pain and sensory loss, he had consulted the AMA Guides, and the claimant had objective findings of a scar on his forehead and damage to the trigeminal nerve. There is no requirement that medical testimony be based solely or expressly on objective findings, only that the record contain supporting objective findings. Singleton, supra. This court has previously held that when there are objective findings, it is improper for the Commission to reject an impairment rating because it was based, in part, on subjective findings. Id. Here, the Commission recognized that Dr. Hood had based his ratings, in part, on subjective findings but found that the record contained objective findings to support the ratings assigned. Further, the Commission gave greater weight to Dr. Hood's opinion, even though Dr. Morell was Washington's treating physician and the surgeon who had performed her surgeries. That is a decision within the Commission's province. Watlington, supra. Viewing the evidence in the light most favorable to the Commission's findings, we hold that the Commission's decision is supported by substantial evidence.
Affirmed.
ABRAMSON and THYER, JJ., agree.