Opinion
CLAIM NO. F201682
OPINION FILED JUNE 28, 2006
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the Honorable Frederick S. Spencer, Attorney at Law, Mountain Home, Arkansas.
Respondents represented by the Honorable Jeremy Swearingen, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed in part and reversed in part.
OPINION AND ORDER
The respondents appeal and the claimant cross-appeals an administrative law judge's opinion filed September 9, 2005. The administrative law judge found, among other things, that the claimant did not prove the Commission's adjudication process was unconstitutional. The administrative law judge found that the claimant did not prove "compensability of his left upper extremity cubital and carpal tunnel syndromes." The administrative law judge found that the claimant did not prove his alleged low back injury was compensable, and that the claimant did not prove his alleged organic brain injury was compensable. The administrative law judge found that the claimant proved he had sustained a compensable mental injury. Finally, the administrative law judge found that the claimant did not prove he was entitled to an additional 3% anatomical impairment.
After reviewing the entire record de novo, the Full Commission affirms in part and reverses in part the opinion of the administrative law judge. The Full Commission finds that the claimant did not prove the Commission's adjudication process was unconstitutional; that the claimant did not prove he sustained a compensable left upper extremity cubital syndrome or carpal tunnel syndrome condition; that the claimant did not prove he sustained a compensable low back injury, and that the claimant did not prove he sustained a compensable organic brain injury. The Full Commission reverses the administrative law judge's finding that the claimant sustained a compensable mental injury. We affirm the administrative law judge's finding that the claimant did not prove he was entitled to an additional 3% anatomical impairment.
I. HISTORY
Michael Louis Veloria, age 47, was examined in 1992 for complaints of back pain and pain in both elbows. Dr. Vowell stated in August 1992, "It is my impression that he may have a chronic low back strain. There is no neuropathy that I can detect. He probably has a tardy nerve palsy on the left, although it is not to the point that it causes any muscular atrophy."
A psychiatrist opined with regard to the claimant in December 1992, "he had what I considered a major depression without psychosis."
Dr. G. Elders noted in January 1999, "Since he was a teenager, he had leg pains, ankle pains, tendinitis, heel spurs, carpal tunnel, various other problems."
The parties stipulated that the claimant sustained compensable injuries to his upper extremities on September 1, 2001. The claimant testified, "I was working in an apartment complex, by myself, and I was running wire overhead. And the plumber had material throwed about, and I slipped, tripped, kind of did a Superman-style dive, and hit the bottom plate of a wall, new construction wall. And I landed on my lower wrist, upper wrist, however you want to call it, and it just jammed everything. My arms went numb pretty quick. I threw a fit, and I kept working, and then I did a slip-trip again, soon thereafter, where my feet went up in the air, and I came down on my right buttock and my right forearm."
The claimant treated with Dr. Lonnie Robinson on September 7, 2001. At that time, the claimant did not report any sort of work-related accident. Instead, the claimant saw Dr. Robinson "to discuss problems he has had in the past with surgery." Dr. Robinson's impression was "1. Right knee pain. 2. Abdominal swelling." Dr. Robinson did describe a "positive Tinel's on the right wrist" and indicated he would place the claimant in a cock-up splint for the wrist.
There are otherwise no medical records before the Commission indicating that the claimant sustained an accidental injury to his upper extremities on September 1, 2001.
A nerve conduction study of the claimant's right upper extremity was taken in December 2001, with the following impression: "1. Significant focal slowing of the ulnar nerve at the elbow. 2. Nerve conduction study is consistent with mild carpal tunnel syndrome. There is also mild slowing of the ulnar nerve across the wrist."
Dr. Robinson noted in January 2002, "Nerve conduction studies showed CTS, mild in nature on the right, also slowing at the ulnar nerve at elbow indicating ulnar neuritis." Dr. Robinson's impression was "1. Ulnar neuritis on the right. 2. Right CTS."
Dr. Thomas E. Knox stated the following impression in January 2002: "Carpal tunnel syndrome, of recent origin, and longstanding ulnar neuropathy of the elbow." On February 26, 2002, Dr. Knox performed a "Submuscular ulnar nerve transposition, right elbow."
In August 2002, the claimant presented to Dr. Robinson for complaints of right lower back pain radiating to his right leg. Dr. Robinson noted "some mild spasm" and gave the following impression: "1. Back pain. 2. Radicular syndrome on the right."
An MRI in August 2002 showed L4-L5 disc herniation on the right.
Dr. Bruce D. Robbins informed Dr. Robinson in September 2002, "Michael is having problems with his upper extremities. The nerve conduction studies show changes consistent with mild bilateral carpal tunnel syndrome. The left side is worse than the right. . . . The ulnar nerve on the left side shows significant slowing across the elbow. . . . The right side is post-surgical and the conduction velocity is within normal limits. . . . The EMG needle examination show (sic) mild chronic neurogenic changes in muscles innervated by C5-6 on the right side. The left side EMG needle examination is within normal limits."
Dr. R. Doug Foster, an orthopaedic specialist, examined the claimant in September 2002. Dr. Foster noted, "MRI shows L4/5 degenerative disc disease with a chronic posterolateral disc herniation at L4/5 in the lateral recess."
In December 2002, the claimant filled out what appears to be a Social Security Administration form. The claimant wrote that he was anxious and nervous, but he did not relate this condition to the compensable injuries. The claimant wrote, "Due to my lack of health (physical) I feel I'm losing my mental health!!!"
Dr. Robinson noted in April 2003, "Describing depression, he basically met all the criteria with anhedonia, depressed mood, easily irritated, poor sleep." Dr. Robinson's impression was, "1. Lumbar radiculopathy. 2. Bilateral hand paresthesias. 3. Carpal tunnel syndrome. 4. Depression."
The following was written on April 4, 2003, apparently by Dr. Thomas E. Knox: "His nerve conduction studies, completed on April 1st by Dr. Robbins, show a significant cubital tunnel syndrome of the left elbow plus bilateral carpal tunnel syndrome. In my opinion, based on these two studies which are now about six months apart, we definitely need to consider doing bilateral open carpal tunnel releases and cubital tunnel releases with anterior transposition of the left ulnar nerve."
The parties stipulated that the respondents "accepted Claimant's left upper extremity as compensable and provided medical benefits until Claimant was diagnosed with cubital and carpal tunnel syndrome in this extremity."
The parties deposed Dr. Knox on May 22, 2003. The respondents' attorney questioned Dr. Knox:
Q. Let me kind of sum this up doctor, would it be fair to say that you're still recommending that Mr. Veloria have bilateral carpal tunnel releases and a left-sided ulnar nerve transposition?
A. I am.
Q. But with respect to whether those surgeries, or the need for those surgeries is related to his alleged work injury or it's related to some more chronic condition that he might have had since 1992, would you have to engage in speculation or conjecture to say which one it's related to, if any?
A. I would, based on Dr. Vowell's note on his left arm, I'd have to say that there's a possibility that his left side on the ulnar nerve could have been a more chronic problem but there was no mention of it in Dr. Vowell's note at least ten years ago that he was having hand complaints of carpal tunnel, so definitely they're of a more recent onset. . . .
Q. So let me try to break up the questions then, with respect to the left ulnar nerve transposition, is there any way you can state to a reasonable degree of medical certainty that the need for the claimant's left ulnar nerve transposition its (sic) related to his alleged work injury as opposed to being something that's more chronic or pre-existing?
A. I can only say that there was a documentation that there may very well have been ulnar nerve entrapment ten years ago. . . .
The record indicates that the claimant underwent an "open carpal tunnel release, right wrist" on September 2, 2003.
Dr. Robinson's impression in April 2004 included "Depression."
Dr. Knox wrote the following on April 2, 2004:
Michael Veloria was seen initially on January 14, 2002. He was referred by his primary care physician, Dr. Lonnie Robinson, for evaluation of paresthesias and numbness in his right hand. He reported the onset of these symptoms in August or September, 2001. Dr. Robinson had obtained nerve conduction studies of the right upper extremity, and the report from Dr. Bruce Robbins, dated December 6, 2001, showed significant slowing of the ulnar nerve at the elbow, as well as mild carpal tunnel syndrome. My assessment was carpal tunnel syndrome, of recent onset, and longstanding ulnar neuropathy of the elbow.
On February 26, 2002, Mr. Veloria underwent submuscular ulnar nerve transposition. . . .
On August 19, 2002, Mr. Veloria saw Dr. Michael Moore, a hand surgeon in Little Rock, Arkansas, for an independent medical evaluation. Dr. Moore felt his clinical history and physical examination were consistent with bilateral carpal tunnel syndrome. . . .
Nerve conduction studies completed September 5, 2002, showed mild bilateral carpal tunnel syndrome, left greater than right, and marked slowing of the left ulnar nerve at the elbow. Bone scan on December 2, 2002, showed moderately intense focal increased uptake in the left wrist, and mild increased activity in the right wrist, much less in intensity than that seen on the left. MRI scans of both wrists showed small fluid collections in the lunate on the right, consistent with small cysts, and very tendinous attachment of the triangular fibrocartilage to the radius on both the left and right wrists.
The bone scan, MRI, and plain film x-rays were forwarded to Dr. Mike Moore for review. He asked Dr. Al Alexander, orthopaedic radiologist, to review the MRI scans. Dr. Alexander felt the scan of the right wrist suggested changes in the lunate consistent with ulnar impingement, and a probable small defect in the TFCC. The left wrist MRI scan suggested a probable small defect in the TFCC and small interosseous ganglion cyst in the distal scaphoid. The bone scan revealed increased activity in this area. The bone scan also suggested degenerative changes near the thumb basilar joints. The MRI scans did not suggest ischemic necrosis of the wrists or any significant problem. Dr. Moore noted that if his wrist symptoms were fairly diffuse and nonspecific, it was unlikely he would benefit from surgery to treat ulnocarpal impingement. In addition, the TFCC tears could be related to his age and not trauma. The majority of Mr. Veloria's symptoms at his examination in August, 2002, were related to persistent numbness in both hands and intermittent, recurrent swelling in the right hand. . . .
Nerve conduction studies completed April 1, 2003, again showed mild bilateral carpal tunnel syndrome, and significant slowing of the left ulnar nerve across the elbow. Based on this study and the one done six months earlier, I felt consideration should be given for bilateral open carpal tunnel releases and cubital tunnel release with anterior transposition of the left ulnar nerve.
On July 30, 2003, we were informed that Freemont (sic) Pacific Insurance Co. was in liquidation, and their claims had been turned over to Crockett Adjustment for further handling. On August 6, 2003, we were notified by Myrna Ward, Claims Adjuster, that a right open carpal tunnel release was approved, but that treatment for the left upper extremity had been denied.
Mr. Veloria underwent right open carpal tunnel release on September 2, 2003. . . . I last examined Mr. Veloria on October 6, 2003. I would place him at maximum medical improvement from his right carpal tunnel release as of that date. He was released to return to work, with a lifting restriction of 25 lbs.
He recently had an impairment evaluation utilizing the Dexter system, a computer hardware/software system designed for the evaluation and rehabilitation of individuals with upper extremity (hand, wrist, elbow, or shoulder) musculoskeletal impairment. This system is licensed by the
American Medical Association to use the Guides to the Evaluation of Permanent Impairment, 4th Edition, in a software format. It calculates impairment ratings based on level of amputation, if applicable, and objective findings of active range of motion, static or manual muscle strength, and sensory loss.
This evaluation shows a right upper extremity impairment of 3% for abnormal motion, plus 20% grip strength impairment, for a total upper extremity impairment of 22%, which is 13% whole person. . . .
The parties stipulated that the respondents "accepted Claimant's right upper extremity as compensable and have provided medical benefits, temporary total disability benefits, and permanent partial disability benefits for a 19% impairment rating to Claimant's right upper extremity."
Dr. Vann A. Smith, a neuropsychologist, examined the claimant on July 5, 2004 and essentially diagnosed the following: "Organic Brain Dysfunction" and "Chronic Pain Syndrome Secondary to Orthopaedic Trauma and residua."
The claimant was seen at Baxter Regional Medical Center on September 15, 2004 and was diagnosed as having "Depression."
Dr. Stephen Dollins provided a psychiatric evaluation on September 15, 2004:
The patient was referred for the intensive outpatient program by Dr. Lonnie Robinson due to depressive symptoms. The patient reports he had been in good mental and emotional health until suffering a severe injury at work in 2001 and states that for about the first 6 months after his injury he had remained hopeful that he would recover from this and his mood remained fairly normal. He states he hit a plateau at that point and began to realize that he would not fully recover from the injuries he sustained and this was the onset of his depression symptoms. He states he suffered a fall at work in which he suffered injuries to his arms, neck, and back. He has had several subsequent surgeries and chronic pain since that time. . . .
Dr. Dollins' admitting diagnoses were the following: "Axis I: Major depression, single episode, severe. Axis II: No diagnosis. Axis III: Chronic pain." Dr. Dollins admitted the claimant to an outpatient program for treatment of depression symptoms.
The parties deposed Dr. Smith on September 24, 2004. Dr. Smith testified that the testing he administered on the claimant indicated the presence of "some mild diffuse brain dysfunction."
A pre-hearing order was filed on November 2, 2004. The parties agreed to litigate the following issues:
1. What is claimant's average weekly wage.
2. Whether Claimant's left upper extremity cubital and carpal tunnel syndrome are compensable.
3. Whether Claimant sustained a compensable low back injury.
4. Whether Claimant sustained a compensable organic brain injury.
5. Whether Claimant sustained a compensable mental injury.
6. Whether Claimant is entitled to reasonably necessary medical benefits in connection with his injuries.
7. Whether Claimant is entitled to temporary total disability benefits from October 14, 2003, to a date to be determined.
8. Whether Claimant is entitled to an additional 3% impairment rating to the right upper extremity.
9. Whether Claimant is entitled to an attorney's fee.
The parties deposed Dr. Stephen Dollins, a psychiatrist, on January 20, 2005. The respondents' attorney questioned Dr. Dollins:
Q. You've indicated that he voiced to you a level of frustration with his dealings with workers' comp. Are you, would you be able to state whether his depression symptoms were related to that frustration with the proceedings that he had to deal with as opposed to —
A. Oh, yeah, I —
Q. — causally related to the actual physical problems?
A. — think they both contributed. Yes.
Q. Is there any way for you to state which one was more of a causative factor?
A. No. No. But that was one of his, one of his primary stresses, that frustration. . . .
[M]ost of the medical records I've seen are all just focused on his arms. All these surgeries for carpal tunnel release and nerve stuff and pain in his arms and bone scans of his wrists, even discounting the back, even if he only suffered arm injuries in the fall, then that appears to be a significant factor in his being unable to work and in his problems with subsequently developing depression. . . .
Q. Did you use the DSM in making your diagnosis, or did you assess your diagnosis of him simply based off of what you saw?
A. I have the five axis, DSM-IV diagnostic assessment in my evaluation . . .
Q. Now, you say single episode major depression. What does that mean, single episode?
A. Just that he's had one bout of depression, although it's dragged out for a while. He'd been in treatment for, I believe, about a year and a half at the point that I saw him, and on anti-depressant medications. It had been one continuous episode rather than a bout of depression years ago, a period of remission, then another bout. When patients have had more than one separate episode of depression with a period of remission in between, it's classified as major depression recurrent. In the case where the patient has only had one episode of depression, regardless of the length of it, it's classified as a single episode.
The claimant's attorney questioned Dr. Dollins:
Q. Doctor, based upon a reasonable degree of psychiatric certainty, medical certainty, do you have an opinion — first of all, do you have an opinion as to whether or not the diagnosis that you have just given is causally related to
Mr. Veloria, a man who had worked for Zimdahl Electric some six years, was a licensed electrician, until an injury of September 1st, 2001, when he had the injuries that you've described. Do you have an opinion, first of all, as to whether or not, based upon a reasonable degree of medical certainty, whether or not the diagnosis that you've described is causally related to that?
A. Yes.
Q. And what is that opinion, Doctor?
A. I believe it was causally related. . . .
Q. Doctor, based upon a reasonable degree of psychological certainty, or medical certainty, do you believe that Mr. Veloria, unless and until he can have the treatment that he needs for this major depression, would not be able to perform a job eight hours a day, five days a week, without having to absent himself from the job situation because of the symptoms?
A. Yeah. I think completely independently from his physical symptoms, he has a bad enough depression going on, at least when I saw him in September, that would prevent him from working.
The administrative law judge found, in pertinent part:
3. Claimant's constitutional challenges to the Commission's adjudication process should be, and hereby are, rejected. Claimant did not submit credible evidence of either bias or pressure on the Commission's administrative law judges. Further, Claimant failed to demonstrate how the Commission's adjudicative process violates the separation of powers principle or does not comport with procedural due process.
10. Claimant did not sustain his burden of proving the compensability of his left upper extremity cubital and carpal tunnel syndromes. . . .
11. Claimant did not sustain his burden of proving that his low back injury is compensable. . . .
12. Claimant failed to sustain his burden of proving that his alleged organic brain injury is compensable. There is no medical evidence in the record establishing such an injury. Further, there are no objective findings of such an injury.
13. Claimant sustained his burden of proving that his mental injury is compensable. Claimant's compensable right upper extremity injuries preceded and caused his mental injury. His corroborated testimony demonstrates that his mental condition was better prior to his accident, but much worse afterwards. Dr. Dollins diagnosed Claimant's "major depression" using the DSM-IV.
14. Claimant sustained his burden of proving his entitlement to reasonably necessary medical benefits in connection with his compensable mental injury. . . .
16. Claimant did not sustain his burden of proving entitlement to temporary total disability benefits from October 14, 2003, to a date to be determined, based upon his compensable right upper extremity injuries. The specialist treating Claimant's right upper extremity, Dr. Knox, established the Claimant was at maximum medical improvement as of October 6, 2003.
17. Claimant sustained his burden of proving that he is entitled to temporary total disability benefits under Ark. Code Ann. § 11-9-113(b)(1) based upon his compensable mental injury. Testimony in the record, including that of Dr. Dollins, establishes that Claimant's depression extended at least as far back as the date Claimant was declared to be at maximum medical improvement for his right upper extremity problems, October 6, 2003. As of September of 2004, Dr. Dollins testified that Claimant's depression was severe enough that it "would prevent him from working." Thus, Claimant is entitled to temporary total disability benefits for twenty-six weeks commencing October 14, 2003.
19. Claimant did not sustain his burden of proving entitlement to an additional 3% permanent impairment rating to his right upper extremity.
There are no objective and measurable physical findings in the record that would support an additional impairment rating.
Both parties appeal to the Full Commission.
II. ADJUDICATION
A. Constitutionality
The administrative law judge found, "Claimant's constitutional challenges to the Commission's adjudication process should be, and hereby are, rejected. Claimant did not submit credible evidence of bias or pressure on the Commission's administrative law judges. Further, claimant failed to demonstrate how the Commission's adjudication process violates the separation of powers principle or does not comport with procedural due process." The Full Commission affirms this finding.
The claimant on appeal again states that the Commission's adjudication process violates the separation of powers doctrine and due process. Counsel states that Arkansas' executive branch of government has exerted pressure on the Commission and has infringed on the Commission's decisional independence.
It is well-settled that an act by the legislature is entitled to a presumption of constitutionality. Golden v. Westark Community College, 58 Ark. App. 209, 948 S.W.2d 108 (1997). The party challenging a statute has the burden of proving it unconstitutional. Lambert v. Baldor Elec., 44 Ark. App. 117, 868 S.W.2d 513 (1993).
The Commission may appoint as many persons as may be necessary to be administrative law judges, and administrative law judges are employees of the Commission. Ark. Code Ann. § 11-9-205(b). When deciding any issue, administrative law judges shall determine, on the basis of the record as a whole, whether the party having the burden of proof on an issue has established it by a preponderance of the evidence. Ark. Code Ann. § 11-9-704(c)(2); § 11-9-705(a)(3).
The claimant asserts that the workers' compensation system employing administrative law judges violates due process, equal protection, and separation of powers. However, the Full Commission has already refuted all of these purported constitutional violations raised by the claimant's attorney inPlummer v. Wal-Mart Stores, Inc., Workers' Compensation Commission F209057 (Oct. 10, 2005); Edwards v. Galloway Sand Gravel, Workers' Compensation Commission F109737 (Oct. 11, 2005); and Bland v. Baxter Regional Medical Center, Workers' Compensation Commission F204378 (Aug. 16, 2005).
An adjudicator is presumed to be unbiased, and to overcome that presumption, a litigant must show a conflict of interest or some other specific reason for disqualification. Quinn v. Webb Wheel Prods., 59 Ark. App. 272, 957 S.W.2d 187 (1997), citing Withrow v. Larkin, 421 U.S. 35 (1975). In general, the test is whether the adjudicator's situation is one that might lead him not to hold the balance [between the parties] clear and true. Quinn, supra, citing Tumey v. Ohio, 273 U.S. 510 (1927).
In the present matter, the claimant has not demonstrated that the Commission's adjudicative process violates separation of powers, due process, or any other constitutional or statutory provision. The Full Commission therefore affirms the finding of the administrative law judge.
B. Compensability of Left Upper Extremity Cubital and Carpal Tunnel Syndrome, and Low Back
Ark. Code Ann. § 11-9-102(4)(A)(i) defines "compensable injury":
An accidental injury causing internal or external physical harm to the body . . . arising out of and in the course of employment and which requires medical services or results in disability or death. An injury is "accidental" only if it is caused by a specific incident and is identifiable by time and place of occurrence[.]
A compensable injury must be established by medical evidence supported by objective findings. Ark. Code Ann. § 11-9-102(4)(D). The claimant's burden of proof shall be a preponderance of the evidence. Ark. Code Ann. § 11-9-102(4)(E)(i).
The claimant contends in the present matter, "the preponderance of the evidence does in fact establish" that the claimant "sustained injuries to his left upper extremity as the result of his accidents on September 1, 2001." The Full Commission recognizes the parties' stipulation that the claimant "sustained compensable injuries to his upper extremities on September 1, 2001." Nevertheless, the medical evidence before the Commission just does not indicate that the claimant sustained any internal or external physical harm to his left upper extremity as the result of an accident occurring September 1, 2001. The claimant testified that he "landed on my lower wrist, upper wrist, however you want to call it, and it just jammed everything." The claimant testified that he then "did a slip-trip again, soon thereafter, where my feet went up in the air, and I came down on my right buttock and right forearm."
The medical records do not corroborate the claimant's testimony in this regard. When the claimant presented to Dr. Robinson on September 7, 2001, Dr. Robinson did not note any sort of work-related accident or injury involving the claimant's left upper extremity. Dr. Robinson did note right knee pain, abdominal swelling, and apparently right wrist pain, but again, Dr. Robinson did not describe an injury involving the claimant's left upper extremity. The Full Commission recognizes the January 2002 impression of Dr. Knox, to wit: "Carpal tunnel syndrome, of recent origin, and longstanding ulnar neuropathy of the elbow." The record does not indicate that this impression of carpal tunnel syndrome and ulnar neuropathy arose as a result of the September 1, 2001 incident. We also recognize Dr. Robbins' report in September 2002, i.e., that diagnostic testing showed "changes consistent with mild bilateral carpal tunnel syndrome. The left side is worse than the right. . . . The ulnar nerve on the left side shows significant slowing across the elbow." However, the Full Commission is unable to causally relate this diagnostic testing to the September 2001 specific incident.
The respondents nevertheless paid benefits for the claimant's left upper extremity, until the claimant "was diagnosed with cubital and carpal tunnel syndrome in this extremity." The preponderance of evidence before the Commission does not demonstrate that the claimant sustained left cubital or left carpal tunnel syndrome as a result of the September 1, 2001 incident. The claimant did not prove that the diagnosis of left cubital or left carpal tunnel syndrome was the result of an accidental injury arising out of and in the course of the claimant's employment on September 1, 2001. We therefore affirm the adminstrative law judge's finding, "Claimant did not sustain his burden of proving the compensability of his left upper extremity cubital and carpal tunnel syndromes."
The claimant also contends that he sustained an injury to his low back "as a result of the September 1, 2001, accidents." The Full Commission finds that the claimant did not prove he sustained a compensable injury to his low back. The evidence does not demonstrate that the claimant sustained a low back injury as the result of the September 1, 2001 incident. We again note that Dr. Robinson did not describe any sort of back pain when he examined the claimant on September 7, 2001. The claimant reported in December 2001 that his back was "giving him a lot of problems," but he did not attribute these problems to a workplace incident. The medical records indicate that the claimant began complaining of lower back pain in August 2002. Dr. Robinson noted "some mild spasm," and a subsequent MRI showed an L4-L5 disc herniation on the right. The record does not demonstrate that the claimant's back pain, spasm, or disc herniation arose out of or in the course of the claimant's employment as a result of the September 1, 2001 accident. We therefore affirm the administrative law judge's finding, "Claimant did not sustain his burden of proving that his low back injury is compensable."
C. Compensability of Alleged Organic Brain Injury/Admission of Evidence
The administrative law judge found, "Claimant failed to sustain his burden of proving that his alleged organic brain injury is compensable." The Full Commission affirms this finding.
On November 1, 2004, the Commission received the respondents'Motion In Limine To Exclude Dr. Vann Smith's Records And Testimony For Failure To Meet Evidence Standards Of Rule 702 and Daubert/Kumbo Cases. On May 26, 2005, the administrative law judge entered an Order Granting Motion In Limine. In an Order filed January 10, 2006, the Full Commission stated that we would treat the claimant's "first substituted brief" as a reply brief. We noted that the administrative law judge's motion in limine was not a final ruling on the admissibility of the evidence in question, but was only interlocutory, tentative, preliminary in nature, and subject to reconsideration and change. See, Conagra, Inc. v. Strother, 68 Ark. App. 120, 5 S.W.3d 69 (1999).
The respondents on appeal cite Ark. Code Ann. § 11-9-705:
(d) Expert testimony shall not be allowed unless it satisfies the requirements of Federal Rule of Evidence 702 with annotations and amendments, that is, Daubert v. Merrell-Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and Kumbo Tire Co. v. Carmichael, 526 U.S. 137 (1999).
The admissibility of expert testimony rests largely within the broad discretion of the trial court and an appellant bears the burdensome task of demonstrating that a trial court abused its discretion. Williams v. First Unum Life Ins. Co., 358 Ark. 224, ___ S.W.3d ___ (2004), citing Collins v. Hinton, 327 Ark. 159, 937 S.W.2d 164 (1997).
Federal Rule of Evidence 702 provides:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.
The respondents state in the present matter, "Dr. Smith's reports, notes and testimony fail to satisfy the requirements for reliability and validity of proffered expert testimony, as required by Ark. Code Ann. § 11-9-705(d), Rule 702 of the Federal Rules of Evidence, and applicable case law." The Full Commission is unable to agree with the respondents that Dr. Smith's reports, notes and testimony should be excluded on these bases. Moreover, the Commission should be more liberal with the admission of evidence, rather than more stringent. See, Bryant v. Staffmark, Inc., 76 Ark. App. 64, 61 S.W.3d 856 (2001).
The Full Commission nevertheless affirms the administrative law judge's finding that the claimant did not prove he sustained a compensable organic brain injury. There is not a scintilla of evidence before the Commission demonstrating that the claimant sustained physical harm to his brain as a result of the September 1, 2001 incidents testified to by the claimant. The Full Commission recognizes Dr. Smith's July 2004 diagnosis of "Organic Brain Dysfunction." We also recognize Dr. Smith's subsequent deposition testimony wherein he stated that testing on the claimant had shown "some mild diffuse brain dysfunction." The Commission has the authority to accept or reject a medical opinion and the authority to determine its probative value. Poulan Weed Eater v. Marshall, 79 Ark. App. 129, 84 S.W.3d 878 (2002). In the present matter, although we do not exclude the reports and testimony of Dr. Smith, the Full Commission assigns absolutely no weight to Dr. Smith's opinion that the claimant sustained an organic brain injury. The decision of the administrative law judge is affirmed.
D. Mental injury or illness
Ark. Code Ann. § 11-9-113 provides:
(a)(1) A mental injury or illness is not a compensable injury unless it is caused by physical injury to the employee's body, and shall not be considered an injury arising out of and in the course of employment or compensable unless it is demonstrated by a preponderance of the evidence; provided, however, that this physical injury limitation shall not apply to any victim of a crime of violence.
(2) No mental injury or illness under this section shall be compensable unless it is diagnosed by a licensed psychiatrist or psychologist and unless the diagnosis of the condition meets the criteria established in the most recent issue of the Diagnostic and Statistical Manual of Mental Disorders.
(b)(1) Notwithstanding any other provision of this chapter, where a claim is by reason of mental injury or illness, the employee shall be limited to twenty-six (26) weeks of disability benefits.
The administrative law judge found in the present matter, "Claimant sustained his burden of proving that his mental injury is compensable." The Full Commission reverses this finding.
The claimant was reported as having depression since at least 1992, nine years before the stipulated compensable injury. Dr. Robinson's impression in April 2003 included "depression," but he did not causally link the claimant's depression to a compensable injury. When he first saw the claimant in September 2004, Dr. Dollins related the claimant's depression to the claimant's belief "he would not fully recover from the injuries he sustained." Mental anguish about an injury is not enough on its own to establish compensability; to be compensable, a mental injury must be caused by the physical injury itself. See, Amlease, Inc. v. Kuligowski, 59 Ark. App. 261, 957 S.W.2d 715 (1997). Dr. Dollins testified at deposition that a "primary stressor" of the claimant's mental condition was simply "frustration." Dr. Dollins also testified that the claimant suffered from depression "independently from his physical symptoms."
The Full Commission finds that the claimant did not prove he sustained a compensable mental injury pursuant to Ark. Code Ann. § 11-9-113(a)(1). We therefore reverse this finding of the administrative law judge.
E. Anatomical Impairment
Finally, the administrative law judge found, "Claimant did not sustain his burden of proving entitlement to an additional 3% permanent impairment rating to his right upper extremity." The Full Commission affirms this finding.
An injured worker must prove by a preponderance of the evidence that he is entitled to an award for a permanent physical impairment. Weber v. Best Western of Arkadelphia, Workers' Compensation Commission F100472 (Nov. 20, 2003). Any determination of the existence or extent of physical impairment shall be supported by objective and measurable physical or mental findings. Ark. Code Ann. § 11-9-704(c)(1)(B). "Objective findings" are those findings which cannot come under the voluntary control of the patient. Ark. Code Ann. § 11-9-102(16)(A)(i).
In the present matter, the parties stipulated that the respondents accepted a 19% impairment rating to the claimant's right upper extremity. The claimant argues that he is entitled to a 22% permanent impairment rating to the right upper extremity. The Full Commission recognizes the April 2004 letter of Dr. Knox, in which correspondence Dr. Knox assigns a 22% rating based on "active range of motion, static or manual muscle strength, and sensory loss." None of the factors listed by Dr. Knox are objective, and the Commission cannot rely on those factors as objective findings to support an increased anatomical impairment rating. The opinion of the administrative law judge is affirmed.
Based on our de novo review of the entire record, the Full Commission affirms in part the opinion of the administrative law judge. The Full Commission finds that the claimant did not prove the Commission's adjudication process was unconstitutional; that the claimant did not prove he sustained a compensable left upper extremity cubital syndrome or carpal tunnel syndrome condition; that the claimant did not prove he sustained a compensable low back injury; and that the claimant did not prove he sustained a compensable organic brain injury. The Full Commission reverses the administrative law judge's finding that the claimant sustained a compensable mental injury. We affirm the administrative law judge's finding that the claimant did not prove he was entitled to an additional 3% anatomical impairment. The claim for additional benefits is denied and dismissed.
IT IS SO ORDERED.
_______________________________ OLAN W. REEVES, Chairman
_______________________________ KAREN H. McKINNEY, Commissioner
Commissioner Turner concurs in part and dissents in part.
CONCURRING AND DISSENTING OPINION
I must respectfully concur in part and dissent in part from the Majority opinion. Specifically, I concur with the portion of the Majority's decision finding that the claimant did not prove the Commission's process was unconstitutional. Likewise, I concur with their finding that Dr. Smith's reports are admissible. With respect to the remainder of the Majority's opinion, I respectfully dissent without opinion.
_______________________________ SHELBY W. TURNER, Commissioner