Opinion
CLAIM NO. E600375
OPINION FILED MAY 5, 2000
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by RICHARD S. MUSE, Attorney at Law, Hot Springs, Arkansas.
Respondent represented by WALTER A. MURRAY, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Reversed and Remanded.
OPINION AND ORDER
This matter is before us on respondent's appeal of the Administrative Law Judge's award of permanent partial disability benefits to claimant, because there are no objective findings of permanent impairment. The Judge relied upon a Commission opinion upheld by the Court of Appeals in an unpublished opinion. However, the Supreme Court has since overturned the Commission and Court of Appeals opinions, in Wal-Mart Stores Inc. v. Connell, ____ Ark. ___ [ 340 Ark. 475], ___ S.W.3d ___ [ 10 S.W.3d 727], (No. 99-727, March 2, 2000). Based upon the Supreme Court's directive, we must find that claimant has failed to prove his entitlement to permanent partial disability benefits. This claim must therefore be remanded to the Administrative Law Judge for a finding on claimant's alternative argument before the Administrative Law Judge, that his constitutional rights are violated by the absence of a remedy, which was not addressed previously.
The Supreme Court, in Wal-Mart v. Connell, supra, held that where the Commission could not assign a specific percentage of permanent impairment due to an inability to ascertain the actual extent or degree of physical impairment in compliance with the statutes, an award of permanent partial disability and wage loss benefits was barred.
There is little difference between Connell, supra, and the current claim. While claimant's physician imposed restrictions upon claimant's activities due to his shoulder injury, he refused to assign an impairment rating under the AMA Guides, because there were no statutorily sound objective findings. According to the Supreme Court, we are barred from awarding permanent partial disability benefits without objective findings supporting the assignment of a specific percentage of impairment.
Based upon our de novo review of the entire record, we reverse the decision of the Administrative Law Judge and remand this claim to the Judge for a ruling on the claimant's constitutional challenge.
IT IS SO ORDERED.
_______________________________
MIKE WILSON, Commissioner
Commissioner Humphrey dissents.