CLAIM NO. E406698
Before the Arkansas Workers’ Compensation Commission
OPINION FILED NOVEMBER 18, 1996
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by PHILLIP WELLS, Attorney at Law, Jonesboro, Arkansas.
Respondent represented by JAMES W. TILLEY, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Reversed.
[1] OPINION AND ORDER
[2] Respondent appeals and claimant cross-appeals from a decision of the Administrative Law Judge filed January 10, 1996 finding that the claimant sustained a 30% wage loss disability. Based upon our de novo review of the entire record, we find that the claimant has not proven entitlement to permanent partial disability over the amount of his physical impairment rating. Therefore, we reverse the decision of the Administrative Law Judge.
[5] On February 16, 1995, Dr. Pratt diagnosed the claimant with chronic low back pain and leg pain. The claimant was referred to Dr. Moacir Schnapp with the Pain Clinic and Rehabilitation Center. On November 1, 1994 Dr. Schnapp concluded that the claimant has reached maximum medical improvement. Specifically, Dr. Schnapp stated:Mr. Branscum returns today. EMG nerve conduction study normal. MRI of the lumbar spine revealing desiccation at L4 and L5 only. Bone scan of the low back normal. In essence, a non-operative back. I have recommended considering continued exercise and psychological counseling, possibly giving him something to help in sleep. Will contact his psychiatrist, Dr. Jim Pang, Jr. at Lakeside. (RX-1, p. 82)
[6] The claimant has undergone several aptitude tests which placed him in an above average range of intelligence. (CX-1, RX-1, p. 73-79, 78-91, 93-95) The vocational rehabilitation counselor following the claimant determined that the claimant ranked high in the science skilled, technology skilled, consumer economics, outdoor, arts skilled, and service skilled areas. The claimant’s five highest vocational areas are in business professional, science professional, communication, science skilled and technology professional. The case manager concluded, “[w]hen the client is viewed in relation to his five highest vocational interest areas and three highest peaks on the work values profile, he is revealed as having the requisite vocational abilities to be successful in training and/or employment in various occupations of the science skilled occupational group.” (RX-1, p. 79) [7] Dr. Paul Neal, a clinical psychologist, administered the Minnesota Multiphasic Personality Inventory, Million Clinical Multiaxial Inventory, Shipley Institute of Living Scale, and Rorschach Ink Blot Test. Dr. Neal stated:At the present time, I believe Mr. Branscum has reached maximal medical improvement. According to the AMA Guideline for Permanent Physical Impairment, I believe Mr. Branscum has suffered 20% permanent physical impairment to the body as a whole. I believe that he will continue to have some pain on and off, depending on activities and stress, but as time goes by, I expect some of his discomfort to improve. My recommendations are that he continues with his exercises at home, that he looks for a job that he can do with his limitations or goes back to school, which may actually be the preferred choice. (CX-1, p. 13)
[8] Dr. Neal concluded that the claimant has fairly severe depression and anxiety and will probably experience pain worse than some persons due to his depression and may focus on the pain. (RX-1, p. 90) Dr. Neal further stated:Intellectual screening indicates that Mr. Branscum is functioning in the high average range of intelligence as indicated by the WAIS-R IQ equivalency score of 111 on the Shipley Institute of Living Scale. He is extremely high in abstract reasoning ability and fairly high in long-term memory (fund of vocabulary); this gap between these two scales indicates that he probably has more intellectual potential than he has used thus far. (RX-1, p. 90)
[9] It is important to note that Dr. Neal did not review the claimant’s medical records. [10] Dr. John J. Harris, a psychiatrist, saw the claimant on June 13, 1995 for the purpose of psychiatric assessment, opinion and treatment recommendations. Dr. Harris not only met with the claimant but he also reviewed the claimant’s medical records. After thoroughly examining the medical records, the test results from Dr. Neal’s testing and personally interviewing the claimant Dr. Harris stated:The suggested diagnoses are post traumatic stress disorder resulting from his accident on 5/9/94, resulting in a major depression with melancholia and generalized anxiety disorder; an additional diagnosis is mixed personality disorder, with borderline and avoidant features. (RX-1, p. 91)
[11] Claimant contends that in addition to sustaining the obvious physical injuries in his fall, he also sustained a mental or psychological injury as a result of the fall. Moreover, claimant contends that he is permanently and totally disabled. [12] The claimant’s injury occurred on May 9, 1994. Thus, this claim is governed by Act 796 of 1993. Ark. Code Ann. § 11-9-102 (5) (A) (i) (Repl. 1996) defines compensable injury as:A second careful review of the medical records provided the undersigned and of the psychiatrical findings from the evaluation conducted on June 13, 1995 by the undersigned revealed no contraindication for Mr. Branscum to resume active participation in his previous vocation but in clear observance of the physical limitations otherwise outlined.
Since providing the report dated June 16, 1995 the undersigned has learned that Mr. Branscum has undertaken private airplane flight instructions which require considerable concentration, spatial orientation, manual dexterity and coordination, as well as physical ability. There is no basis, then, especially when considering the latter that Mr. Branscum suffers from the effects of significant psychiatrical impairment to preclude him from resuming administrative or supervisory activities involving his previous vocation. . . (RX-1, p. 92)
[13] For injuries deemed to be mental injuries, Ark. Code Ann. § 11-9-102 (5) (C) (Repl. 1996) states, “[t]he definition of `compensable injury’ as set forth herein shall not be deemed to limit or abrogate the right to recover for mental injuries as set forth in § 11-9-113. . .” [14] Section 11-9-113 states:An accidental injury causing internal or external physical harm to the body or accidental injury to prosthetic appliances, including eyeglasses, contact lenses, or hearing aids, 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 is it caused by a specific incident and is identifiable by time and place of occurrence.
[15] In considering the meaning of this statutory provision in light of the evidence presented in this claim, we note that Act 796 requires the provisions of the Arkansas Workers’ Compensation law to be strictly construed. Ark. Code Ann. § 11-9-704 (C) (3) (Repl. 1996). Moreover, the General Assembly expressly admonished this Commission not to liberalize, broaden or narrow the workers’ compensation statutes. Ark. Code Ann. § 11-9-1001 (Repl. 1996). Thus, in applying the strict construction doctrine and considering the legislative admonishment, we cannot read anything into the Act that is not clearly stated in its language, unless the failure to do so would do manifest violence to the intent of the General Assembly. [16] For a mental injury to be compensable under Act 796, it must be diagnosed by a licensed psychiatrist or psychologist and that diagnosis must meet the criteria established in the most current issue of the Diagnostic and Statistical Manual of Mental Disorders. These statutory requisites have not been established. Although Dr. Neal diagnosed the claimant with post-traumatic stress disorder and mixed personality disorder, his diagnosis does not meet the criteria established in the Diagnostic and Statistical Manual of Mental Disorders. [17] Based upon our de novo review of the entire record, we find that the claimant failed to prove by a preponderance of the evidence the necessary requirements to establish a compensable mental illness under Act 796. [18] As previously stated, this claim is governed by Act 796 which was passed by an overwhelming majority of the General Assembly. According to Ark. Code Ann. § 11-9-101 (B):A mental injury or illness is not a compensable injury unless it is caused by a 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; . . . 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 current issue of the Diagnostic and Statistical Manual of Mental Disorders. (Emphasis added.)
[19] Since the primary purpose of the Arkansas Workers’ Compensation laws are to encourage the return to work of injured employees and to return the workers’ compensation system to a state of economic viability, an award of wage loss disability in this case would negate the explicit purpose of the Act. The General Assembly obviously sought to establish safeguards to assure that only those workers who sustained legitimate work-related mental injuries are compensated. Due to the nebulous nature of mental injuries, the General Assembly set forth specific guidelines of when and how benefits are to be awarded. If a claimant proves a compensable mental injury, Ark. Code Ann. § 11-9-113 (B) limits recovery to only 26 weeks of disability benefits. The Act does not provided for wage loss disability for mental illness. [20] If we follow the logic of the Administrative Law Judge and award wage loss disabilities for alleged mental illness, the primary purposes of the workers’ compensation laws will clearly be abrogated. If we were to liberalize or broaden the Act (which is clearly prohibited) and allow mental illness to be considered in awarding wage loss disability, we would be opening the flood gates of wage loss litigation. This was not the intent of the General Assembly and clearly does not advance the purpose of the General Assembly in returning injured workers to work and in returning the workers’ compensation system to a state of economic viability. Consequently, even if we were to find that the claimant sustained a compensable, mental injury, which we do not find, we cannot use it as the basis for awarding wage loss disability. [21] When we take into consideration the claimant’s age, education, work experience, medical evidence, post-injury income, credibility, demeanor, and interest in returning to work, we find that the claimant has not sustained any disability over and above his physical impairment rating. Glass v. Edens, 233 Ark. 786, 346 S.W.2d 685 (1961); City of Fayetteville v. Guess, 10 Ark. App. 313, 663 S.W.2d 946 (1984). Curry v. Franklin Electric, 32 Ark. App. 168, 798 S.W.2d 130 (1990). The functional capacity evaluation revealed that the claimant was capable returning to the workforce. The limitations placed upon the claimant by the evaluation were far from rigorous, and the claimant was not unduly restricted. The medical evidence clearly reveals that the claimant may and should return to the workforce. [22] Despite the medical clearance to return to work, the claimant never attempted to return to work or to work rehabilitation, yet he has begun flying lessons. At the time of the hearing, the claimant was only 31 years of age. He is a high school graduate and he attended one year of college in addition to several vocational courses. The claimant has experience supervising employees and he has owned his own business. These factors coupled with the recommendations from his physicians that he return to work as well as Dr. Harris’ evaluation which states there are “. . . no contradictions for Mr. Branscum to resume active participation in his previous vocation . . .” clearly show that the claimant has failed to prove by a preponderance of the evidence any wage loss disability. [23] Based upon our de novo review of the entire record, we find that the claimant did not sustain any disability over and above his physical impairment. The claimant’s young age, education, intellect and work experience coupled with medical evidence unequivocally proves that the claimant may resume his previous vocation within his physical restrictions. Accordingly, we find that the Administrative Law Judge’s decision should be reversed and the claim dismissed. [24] IT IS SO ORDERED.The primary purposes of the workers’ compensation laws are to pay timely temporary and permanent disability benefits to all legitimately injured workers that suffer an injury or disease arising out of and in the course of their employment, to pay reasonable and necessary medical expenses resulting therefrom and then to return the worker to the workforce, and to improve workplace safety through safety programs; improve health care delivery through the use of managed care concepts; encourage the return to work of injured workers;
deter and punish frauds of agents, brokers, solicitors, employers and employees relating to procurement of workers’ compensation coverage or the provision or denial of benefits; curtail the rise in medical costs associated with the provision of workers’ compensation benefits; and emphasize that the workers’ compensation system in this state must be returned to a state of economic viability. (Emphasis added.)
JAMES W. DANIEL, Chairman ALICE L. HOLCOMB, Commissioner
[25] Commissioner Humphrey dissents.