Opinion
CA03-978
Opinion Delivered March 31, 2004
An Appeal from Arkansas Workers' Compensation Commission [F110145]. Reversed and Remanded.
Judy Michael appeals the decision of the Arkansas Workers' Compensation Commission denying her claim for permanent-partial-disability benefits and finding that she had an impairment rating of zero percent. Appellant contends that the Commission erred in denying her claim for permanent-disability benefits in the face of the nine percent permanent anatomic impairment rating given by her treating physician, and argues that the Commission's decision to deny her permanent-partial-disability benefits is not supported by substantial evidence. Due to the Commission's incorrect application of the relevant statute, we reverse and remand for additional findings of fact, conclusions of law, and such further proceedings as may be needed to comply with our opinion.
Appellant is the Director of the Keep Teach Daycare located in Sheridan, Arkansas. She injured her back on Friday, August 24, 2001, while she was holding a child. The child was trying to break free from the appellant, when the appellant "popped" her back. The pain that appellant experienced over the weekend caused her to visit a physician on Monday. Her physician, Dr. Clyde Paul, diagnosed her condition as a lumbar strain. Appellant continued to experience pain so she went to the emergency room. She underwent a magnetic resonance imagery (MRI) study and was referred to Dr. Sunder Krishnan, a neurosurgeon. After the employer's claim representative suggested that she visit Dr. Cathey for a second opinion, appellant went to Dr. Cathey one time on January 8, 2002. After meeting with Dr. Cathey, appellant returned to Dr. Krishnan for therapy. She was treated by Dr. Krishnan until he released her in April 2002. Dr. Krishnan signed a form stating that the appellant had a nine percent impairment rating to the body that was more than fifty percent related to the injury at work. Dr. Cathey stated that he did not believe appellant sustained any impairment as a result of the August 24, 2001, injury. The Commission adopted the administrative law judge's decision, held that the major cause of the appellant's permanent impairment was not the work-related injury, and denied her claim for permanent-partial-disability benefits.
We review the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission's findings and affirm if the findings are supported by substantial evidence. The Commission's decision will not be reversed unless it is clear that fair-minded persons could not have reached the same conclusions if presented with the same facts. Superior Industries v. Thomaston, 72 Ark. App. 7, 32 S.W.3d 52 (2000). We do not review the decision of the administrative law judge; we review the decision of the Commission. Daniels v. Affiliated Foods Southwest, 70 Ark. App. 319, 17 S.W.3d 817 (2000).
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. Ark. Code Ann. 11-9-102(4)(F)(ii)(b) (Supp. 2002) (emphasis added). Ark. Code Ann. 11-9-102 (14)(A) (Supp. 2002), defines a major cause to be more than fifty percent of the cause.
We hold that the Commission's decision is based on a flawed application of Ark. Code Ann. § 11-9-102(F)(ii)(b). Although the Commission concluded that appellant failed to demonstrate by a preponderance of the evidence that the compensable injury was the major cause of the permanent disability or need for treatment, its opinion dealt with permanent impairment as opposed to permanent disability. The issue raised by the statute is whether the compensable injury is the major cause of the permanent disability, not whether the compensable injury caused impairment.
In order to determine appellant's claim for permanent-partial-disability benefits it is necessary to address two issues raised by Ark. Code Ann. § 11-9-102 (4)(F)(ii)(b). The first issue is whether the compensable injury combined with a pre-existing condition to cause a disability. Ark. Code Ann. § 11-9-102 (8) (Supp. 2002), defines disability as "incapacity because of compensable injury to earn, in the same or any other employment, the wages which the employee was receiving at the time of the compensable injury." The Commission failed to address whether appellant's August 24, 2001, injury combined with a pre-existing condition to cause a disability. Instead, the Commission decided whether the compensable injury combined with a pre-existing condition to produce anatomical impairment.
"Preexisting condition" will be used to refer to the phrase "preexisting disease or condition or the natural process of aging" found in Ark. Code. Ann. § 11-9-102(4)(F)(ii)(b).
If the Commission finds that the August 24, 2001, compensable injury combined with appellant's pre-existing condition to produce a disability, then the Commission must determine whether the injury is the major cause of the disability. Ark. Code Ann. § 11-9-102 (14)(A), defines a major cause to be more than fifty percent of the cause. Whether the appellant sustained any impairment as a result of the August 24, 2001, injury does not address whether the injury is the major cause of appellant's disability. The benefits payable under the statute are for permanent disability occasioned by the combined effect of a compensable injury and some pre-existing condition. The impairment associated with such a pre-existing condition may be asymptomatic before a compensable injury occurs so as not to have produced disability before the compensable injury occurred. Whether or not this occurred in appellant's case is a finding the Commission must make in order to produce a decision under this statute.
In short, we hold that the Commission's decision to deny appellant's claim is based on an incorrect application of Ark. Code Ann. § 11-9-102 (4)(F)(ii)(b). Accordingly, we reverse that decision and remand the case so that the Commission can make appropriate findings of fact and conclusions of law, based on further proceedings if necessary, consistent with this opinion.
Reversed and remanded.
HART, ROBBINS, and ROAF, JJ., agree.
NEAL and CRABTREE, JJ., dissent.
I dissent in the reversal and remand of this case. The majority has determined that the Commission erred due to its incorrect application of Ark. Code Ann. § 11-9-102 (4)(F)(ii)(b).
The application of this statute was not the issue appellant brought before us; instead, the issue as framed by the appellant was "whether the finding of the Commission that the Appellant is not entitled to a permanent partial impairment rating of 9% to the whole body is supported by substantial evidence."
This is not an instance in which we have de novo review; our standard of review is that of substantial evidence. In denying permanent anatomical benefits, the Commission did not find that Ms. Michael was not permanently anatomically impaired. Rather, it determined that the compensable injury was not the major cause of any permanent impairment.
A claimant must prove a specific percentage of permanent impairment before he is eligible for permanent disability and wage-loss benefits, Wren v. Sanders Plumbing Supply, ___ Ark. App. ___, 117 S.W.3d 657 (2003), and here, substantial evidence supports the Commission's finding that Ms. Michael was not entitled to the permanent impairment rating given by Dr. Krishnan. Although Dr. Krishnan determined that appellant's work-related injury was more than fifty percent of the cause of her impairment, Dr. Cathey determined that appellant's condition was due to degenerative changes preexisting her injury. A compensable injury must be established by medical evidence supported by objective findings, and medical opinions addressing compensability must be stated within a reasonable degree of medical certainty. See Smith-Blair, Inc. v. Jones, 77 Ark. App. 273, 72 S.W.3d 560 (2002). Speculation and conjecture cannot substitute for credible evidence. Id. Further, the Commission has the authority to accept or reject medical opinions, and its resolution of the medical evidence has the force and effect of a jury verdict. Jim Walter Homes Travelers Ins. v. Beard, 82 Ark. App. 607, 120 S.W.3d 160 (2003). While there was conflicting medical evidence in this case, it is well settled that it is the Commission's duty to resolve such conflicts. Polk County v. Jones, 74 Ark. App. 159, 47 S.W.3d 904 (2001).
In this instance, the Commission's determination turned on its view of Dr. Krishnan's credibility and the weight to be given the evidence. The Commission specifically noted that appellant failed to demonstrate by a preponderance of the evidence that the compensable injury was the major cause of the permanent disability or need for treatment. I believe the Commission's decision was supported by substantial evidence. There is no evidence in the record that supports the impairment rating given by Dr. Krishnan. Furthermore, no objective finding is in the record to support the impairment rating given. Accordingly, I would have affirmed this case based on the issue appellant brought before us.
I am authorized to state that Judge Crabtree joins me in this dissent.