CLAIM NO. E614140
Before the Arkansas Workers’ Compensation Commission
OPINION FILED MAY 27, 1999
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by DAVID MOREHEAD, Attorney at Law, Pine Bluff, Arkansas.
Respondent represented by WALTER MURRAY, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Reversed
[1] OPINION AND ORDER[2] The respondent appeals a decision of the Administrative Law Judge filed on October 13, 1998, finding that claimant has proven entitlement to a 5% permanent impairment rating. Based upon ourde novo view of the entire record, we find that claimant has failed to prove that the impairment rating assigned by Dr. Moore is supported by objective physical findings. [3] At the hearing held on June 18, 1998, claimant contended entitlement to the permanent partial impairment rating as assigned by Dr. Jim J. Moore. Conversely, respondent contended that the impairment rating assigned by Dr. Moore does not satisfy the statutory requirements. After conducting a denovo review of the entire record, without giving the benefit of the doubt to either party, we agree with the respondent. [4] The parties stipulated that the claimant sustained a compensable injury on October 18, 1996, when he was involved in a motor vehicle accident during the course and scope of his employment. The only issue litigated at the June 18, 1998 hearing was claimant’s entitlement to a permanent partial impairment rating. In this regard, Ark. Code Ann. §11-9-102(5)(f)(II) states:
[5] Furthermore, Ark. Code Ann. § 11-9-704(c) provides:Permanent benefits shall be awarded only upon a determination that the compensable injury was the major cause of the disability or impairment. If any compensable injury combines with a pre-existing disease or condition or the natural process of aging to cause or prolong disability or the need for treatment, permanent benefits shall be payable for the resulting condition only if the compensable injury is the major cause of the permanent disability or need for treatment.
[6] Finally, Ark. Code Ann. § 11-9-102(16) defines objective findings as:Any determination of the existence or extent of permanent impairment shall be supported by objective and measurable physical or mental findings.
[7] Dr. Jim J. Moore assigned claimant a 5% rating in his June 30, 1997 report. In this report, Dr. Moore stated:“. . . those findings that cannot come under the voluntary control of the patient. In determining physical or anatomical impairment, neither a physician, nor any medical provider, an Administrative Law Judge, the Workers’ Compensation Commission, nor the Courts may consider the complaints of pain; for the purpose of making physical or anatomical impairments to the spine, straight-leg raising tests or range of motion tests, shall not be considered objective findings. Medical opinions addressing compensability and permanent impairment must be stated within a reasonable degree of medical certainty.
[8] A review of this report reveals that Dr. Moore has failed to set forth any objective and measurable physical findings in support of the 5% “PPD level” assigned. Moreover, it is noted that Dr. Moore used the phrase “PPD level” as opposed to assigning a true impairment rating in accordance with the AMA Guide. Pursuant to Ark. Code Ann. § 11-9-522(g) this Commission has adopted the American Medical Association’s Guides to theEvaluation of Permanent Impairment (Fourth Edition) for the determination of any assessment of permanent physical impairment. As explained in the first chapter of the AMA Guides, there is a distinct difference between impairment and disability. A person may suffer an impairment under the Guides and may not necessarily be disabled, and vice versa. In this regard, the Guides state:I believe this patient has sustained a stretch phenomenon as a result of the 10/18/96 injury. There is no evidence of a surgical lesion being present. I believe this would translate to periodic requirements as far as treatment is concerned which would be non-surgically oriented and would be medication usage as well as epidural steroid injections. I believe this stretch phenomenon would translate to a PPD level of 5% which would be considered above and beyond anything that has been previously submitted on this patient.
[9] It is well settled that the assessment of disability for workers’ compensation purposes rests, not with the physician, but with the Workers’ Compensation Commission. “The determination of the precise degree of impairment is the Commission’s duty to determine under the law.” Johnson v. General Dynamics, 46 Ark. App. 188, 878 S.W.2d, 411 (1994). Furthermore, “it is the Commission’s duty to determine whether any permanent anatomical impairment resulted from an injury, and, if the Commission determines that such an impairment did occur, it has the duty to determine the precise degree of anatomical loss of use.” Crawford v. Hudson Foods, Full Commission Opinion filed June 10, 1998 (E701395); Carolyn Jackson v. BosleeConstruction, Full Commission Opinion filed March 6, 1997 (E009401); Terry Humphrey v. Faulkner Nursing Center, Full Commission Opinion filed April 8, 1997 (E300751). “It is the duty of the Commission, not of doctors, to determine the impairment rating of a claimant. Id.; GregoryLarry v. Cooper Tire and Rubber Company, Full Commission Opinion filed May 20, 1997 (E313078). [10] Our review of Dr. Moore’s June 30, 1997 report when he assigned the claimant a 5% “PPD level”, fails to shed any light upon the factors relied upon by Dr. Moore in reaching this conclusion. Our review of the medical records reveals that there has been virtually no change in claimant’s physical condition supported by objective medical evidence as a result of the compensable injury. Prior to his involvement in the motor vehicle accident on October 18, 1996, claimant had previously experienced lower-back problems which resulted in a laminectomy at L3-4 and L4-5. Comparing claimant’s diagnostic tests both prior to and subsequent to claimant’s October 18, 1996, compensable injury, reveals no change. Dr. Scott Harter who reviewed claimant’s myelogram and post-myelogram CT scans from March 28, 1994 and March 27, 1997 at the request of respondent summarized the changes as follows:In general, it is a physician’s responsibility to evaluate a patient’s health status and determine the presence or absence of an impairment. The physician may work in one of several settings, including a clinic or hospital, in the work place as an occupational medicine specialist, or as an independent medical examiner. If the physician is well acquainted with the patient’s activities and needs, he or she may also express an opinion about the presence or absence of a disability or handicap.
[11] In addition to MRI’s and CT scans which demonstrate no objective basis for a permanent impairment rating, claimant has also undergone an EMG/NCV study performed by Dr. David Miles. Dr. Miles summarized his electromyographic studies in his February 19, 1997 report as follows:In summary, there has been slight improvement in the L5-S1 disc herniation between 1994 and 1997. No other significant changes are evident.
[12] Interestingly, Dr. Miles has performed two previous NCV/EMG studies on claimant. The first study was performed on December 5, 1991 and revealed:Electromyographic studies suggest some chronic changes in L5 on the left side. The repetitive high-frequency discharges would suggest some chronicity. The positive waves would suggest some current irritation. Large amplitude long duration units would suggest some old changes.
[13] Specifically, the test “showed prolonged insertional activity, positive sharp waves and fibrillation potentials at two plus.” A second NCV/EMG study was performed by Dr. Miles on May 6, 1992. Dr. Miles’ impressions and conclusions from this second study are as follows:Electromyographic studies show irritation and some mild partial denervation of the L5 nerve root on the left side.
[14] Despite the fact that Dr. Miles performed two previous NCV/EMG studies on the claimant, there is no evidence that he compared his more recent findings from February 19, 1997, with either of the previous tests. Clearly, the February 19, 1997 test results identified “old changes”, but there is no evidence presented that the recent irritation noted in the February 19, 1997 report resulted from October 18, 1996 accident, and not from claimant’s pre-existing, underlying condition. Inasmuch as claimant carries the burden of proof by a preponderance of the evidence of establishing entitlement to a permanent impairment rating by objective medical findings, we cannot find that claimant has carried his burden of proof. [15] In finding that the 5% rating assigned by Dr. Moore satisfied the reliance on the AMA Guides, the Administrative Law Judge apparently relied upon Table 72 DRE Lumbosacral Spine Impairment categories. Under this Table, a 5% impairment of the whole person is appropriate for:Electromyographic studies show irritation and partial denervation of the L5 nerve root on the left side.
SUMMARY CONCLUSION: Electro-physiological studies continue to show irritation and partial denervation of the L5 nerve root on the left side. This is a little worse on this examination when compared to the last examination of December, 1991.
[16] First, there is no evidence that Dr. Moore in any manner relied upon this Table in assigning claimant a “PPD level”. [17] Second, given claimant’s pre-existing condition documented by MRI, myelogram and post-myelogram CT’s, we find that there is insufficient evidence that claimant’s compensable injury was the major cause of the 5% rating assigned by Dr. Moore. Claimant carries the burden of proof, and in our opinion, has failed to prove by a preponderance of the evidence that it was the October 18, 1996 accident which is the major cause of the rating assigned by Dr. Moore or which is responsible for the “clinical signs of lumbar injury” identified by Dr. Miles in the EMG studies. Accordingly, even if we were to assume that the February 19, 1997 NCV/EMG documents objective and measurable physical findings, we find that claimant has failed to prove by a preponderance of the evidence that these findings substantiate clinical evidence of a lumbar injury sustained on October 18, 1996. Given claimant’s chronic lower back problems which necessitated surgical intervention prior to the compensable injury, we cannot find that any changes detected through the NCV/EMG are the result of the October 18, 1996 incident and not the prior injuries. In this regard, we also find that claimant has failed to prove by a preponderance of the evidence that the injury he did sustain on October 18, 1996 is the major cause of the 5% rating as assigned by Dr. Moore. [18] Therefore, for those reasons set forth herein, we find that the decision of the Administrative Law Judge awarding claimant entitlement to a 5% permanent impairment rating must be, and hereby is, reversed. [19] IT IS SO ORDERED. [20] _______________________________Minor impairment: Clinical signs of lumbar injury are present without radicularopathy or loss of motion segment integrity.
ELDON F. COFFMAN, Chairman _______________________________ MIKE WILSON, Commissioner [21] Commissioner Humphrey dissents. [22] DISSENTING OPINION
[23] I must respectfully dissent from the majority opinion in this case finding that claimant failed to prove entitlement to permanent benefits for a permanent physical impairment of 5% to the whole body. In my opinion, claimant has met his burden of proof. [24] Claimant sustained an admittedly compensable injury on October 18, 1996. The sole issue here is claimant’s entitlement to permanent partial disability benefits in accordance with the anatomical impairment rating assigned by Dr. Jim J. Moore. In a report dated June 30, 1997, Dr. Moore offered an opinion with respect to claimant’s anatomical impairment:
[25] Dr. Moore’s opinion is stated within a reasonable degree of medical certainty for there is no ambiguity in his report. Moreover, his opinion is supported by the existence of objective findings. For example, electro-diagnostic testing performed by Dr. David A. Miles on February 19, 1997, demonstrated the presence of various neurological abnormalities. Dr. Miles noted that some abnormalities suggest a current or acute L5 nerve irritation on the left side. Further, the abnormalities are consistent with claimant’s symptoms, besides being supportive of Dr. Moore’s diagnosis of a “stretch” injury. [26] Although the evidence shows that there has been little to no change in the claimant’s preinjury and post-injury myelograms and MRI studies, the EMG/NCV testing performed by Dr. Miles revealed objective findings that satisfy the statute. It is true that previous EMG/NCV tests demonstrated irritation of the L5 nerve root on the left side. However, in his report dated February 19, 1997, Dr. Miles offered the following conclusions: “The electro-diagnostic studies do show some recent changes at L-5 on the left side. There is some recent irritation present. There is also evidence of old changes that would be expected from his prior problems.” In my opinion, the objective findings requirement has been satisfied. [27] I also find that the impairment rating assigned by Dr. Moore is in accord with the AMA Guides. In her opinion, the administrative law judge stated: “Obviously, Dr. Moore employed the recommended method termed the diagnosis related estimate of impairment (DRE), and was of the opinion that the claimant’s injury fell under `Lumbrosacral Category II: Minor Impairment’. This category provides that a 5% whole person impairment is appropriate when the clinical history and examination findings are compatible with a specific injury or illness, in this case a stretch injury to the L5 nerve (pg. 102).” I agree. [28] The majority is troubled by Dr. Moore’s use of the phrase “PPD level,” finding that this is not a reference to claimant’s anatomical impairment. In my opinion, the majority’s interpretation of Dr. Moore’s opinion places form over substance. Although Dr. Moore’s opinion could have been more articulate, he is a recognized expert with a great deal of experience treating workers’ compensation injuries. Thus, I am satisfied that he is referring to claimant’s anatomical impairment. [29] The final question is whether claimant has satisfied the major cause requirement. The medical history here makes it clear that claimant had some degree of permanent physical impairment as the result of the previous back injuries he suffered. Nevertheless, it is apparent from Dr. Moore’s report that the current assessment of physical impairment is separate from and in addition to previous ratings assigned. Also, Dr. Moore clearly determined that the 5% rating is based exclusively on the permanent effects of the neurological stretch injury which was produced by the work-related accident that occurred on October 18, 1996. This is supported by claimant’s testimony. He stated that at the time of the accident “I could mow my yard and everything. I can’t do any of that now.” Claimant also testified that he is “not able to get around.” Following the injury, claimant was terminated because he was unable to perform his job duties. In my opinion, the major cause requirement has been satisfied. [30] Based on the foregoing, I respectfully dissent. _________________________________ PAT WEST HUMPHREY, CommissionerI believe this patient has sustained a stretch phenomenon (apparently to the L5 nerve) as a result of the 10/18/96 injury . . . I believe this stretch phenomenon would translate to a PPD level of 5% which would be considered above and beyond anything that has been previously submitted on this patient.