CLAIM NO. E416557
Before the Arkansas Workers’ Compensation Commission
OPINION FILED NOVEMBER 12, 1997
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by SCOTT HUNTER, Attorney at Law, Jonesboro, Arkansas.
Respondents represented by CURTIS NEBBEN, Attorney at Law, Fayetteville, Arkansas.
Decision of Administrative Law Judge: Affirmed.
[1] OPINION AND ORDER
[2] Respondent appeals a March 3, 1997 opinion of the Administrative Law Judge finding that claimant has proven by a preponderance of the evidence that she is entitled to benefits for a permanent anatomical impairment of 5% to the body as a whole. Respondents’ argument on appeal is that there are no objective and measurable findings to support any award for permanent anatomical impairment pursuant to Ark. Code Ann. § 11-9-704(c)(1)(B) (Repl. 1996). We disagree. On December 1, 1994, claimant sustained serious injuries when she was hit by a vehicle in the employer’s parking lot. The injuries were to her head, left eye, lower back and left knee. The present claim appears to be limited to benefits for permanent anatomical impairment due to the head injury.
[6] Claimant added that she experiences problems with attention and concentration, is irritable with people around her, and has difficulty performing simple math. She has likewise had some difficulties with depression both before and after the injury. [7] We would initially point out that claimant’s head injury is not governed by Ark. Code Ann. § 11-9-113, which refers to mental injury or illness, caused by a physical injury to the employee’s body. Claimant’s cognitive dysfunction and impairments are caused by actual physical trauma to claimant’s brain. In other words, claimant’s impairment is organically based. See GaryCoffman v. Jones Timber Co., Full Commission opinion filed August 13, 1997 (E511952) Therefore, we find that the claimant’s impairment rating is controlled by the provision of Chapter 4 (The Nervous System) of the AMA’s Guides to the Evaluation of PermanentImpairment (4th ed. 1993), and not by Chapter 14 (Mental and Behavior Disorders) as the dissent argues. Consequently, the provisions of Chapter 14 for mental and behavior disorders are relevant to our analysis only to the extent indicated by Chapter 4, since the claimant’s impairment was caused by physical injury to the body as opposed to any sort of “psychiatric impairment” as the dissent suggests. [8] In Chapter 4 (The Nervous System) of the Guides, several of the residuals or deficits claimant has experienced are discussed. A review of Subsection 4.1 involving the cerebral or forebrain of the central nervous system reveals that claimant is entitled to a permanent anatomical impairment of at least 5% to the body as a whole. Even discounting the problems claimant is experiencing with balance, claimant’s irritability and outbursts of anger and aggression are dealt with in Subsection 4.1(c). While claimant would fall within the mild limitation of daily social interpersonal functioning using Table 3, the percentage of impairment to the whole person can range anywhere from 0% to 14%. Claimant experiences a lack of sense of smell which reduces her perception of taste. This deficit is discussed in Subsection 4.1(f) dealing with the olfactory or cranial nerves, in particular cranial nerves VII and IX. This deficit was documented by Dr. Inman. The Guides give a maximum impairment from anosmia of 5%. [9] Based on the above evidence, we find that claimant has proven by a preponderance of the evidence that she is entitled to benefits for a permanent anatomical impairment of 5% to the body as a whole. The dissent seems to place great weight on the neuropsychological testing (while at the same time arguing that these results can never be used as indicia of psychiatric impairment), but totally disregards the objective medical evidence of brain damage indicated by CT scans. The CT scans showing cerebral edema, as well as interhemispheric hemorrhaging, are sufficiently objective to support the award for permanent anatomical impairment. Claimant’s residual deficits are consistent with this traumatic brain injury. The underlying condition is post concussion syndrome or traumatic, organic brain damage and the residual deficits are merely indicia supporting the diagnosis. Therefore, we find that claimant’s permanent anatomical impairment is sufficiently supported by objective and measurable findings and accordingly, affirm the opinion of the Administrative Law Judge. [10] Finally, we note that respondent and the dissent contend that the Commission cannot award benefits for permanent anatomical impairment because Dr. Inman allegedly used the wrong edition of the Guides. However, we would point out that the Commission is not limited to medical opinions in deciding the amount or extent of permanent anatomical impairment, and it is the Commission’s duty to determine the precise degree of impairment. Johnson v.General Dynamics, 46 Ark. App. 188, 878 S.W.2d 411 (1994). [11] For the foregoing reasons, we affirm the opinion of the Administrative Law Judge finding that claimant has proven by a preponderance of the evidence that she is entitled to benefits for a permanent anatomical impairment of 5% to the body as a whole. Respondent is directed to comply with the award set forth in the opinion of the Administrative Law Judge. All accrued benefits shall be paid in a lump sum without discount and with interest thereon the lawful rate from the date of the opinion of the Administrative Law Judge. For prevailing on this appeal before the Commission, claimant’s attorney is hereby awarded an additional attorney’s fee in the amount of $250.00. [12] IT IS SO ORDERED.Per your request of December 4, 1996, I have reviewed my deposition and test results for your client, Shelia Brock. Using the Guidelines of the American Medical Association’s, “Guides to the Evaluation of Permanent Impairment, Fourth Edition”, I have rated Ms. Brock’s permanent impairment at 5%. This classification is based on the range within the normal classification of 0-5%, and is based on the fact that while Ms. Brock’s initial Halstead-Reintan Neuropsychological Impairment was rated as moderate, on follow up evaluation the HRB data were within the normal range. Nevertheless, as indicated in both my testimony and final evaluation, there are residual deficits in both verbal memory, higher level balance, as well as loss of smell and taste secondary to cranial nerve damage. Because the patient scored within the normal range on the last HRB evaluation, I have chosen the Normal Range, according to the classification of impairments due to mental and behavioral disorders; using the range of 0-5% I selected 5% as the most appropriate indication of her permanent level of impairment.
ELDON F. COFFMAN, Chairman PAT WEST HUMPHREY, Commissioner
[13] Commissioner Wilson dissents.[14] DISSENTING OPINION
[15] I must respectfully dissent from the majority opinion finding that the claimant sustained a 5% permanent impairment. Based upon my de novo review of the record, I find that the claimant did not sustain any permanent impairment.
[20] In addition the Commission is mandated by Ark. Code Ann. §11-9-522(g)(1)(A) to use the Guides to Permanent Impairment. Rule 34, of the Commission adopted the Guides to the Evaluation ofPermanent Impairment, Fourth Edition. Rule 34, in citing Ark. Code Ann. § 11-9-102(16) states:Any determination of the existence or extend of physical impairment shall be supported by objective and measurable physical or mental findings.
[21] My review of the evidence indicates that Dr. Inman failed to use the Fourth Edition of the AMA Guidelines to arrive at the claimant’s permanent impairment rating that he assessed to her on December 11, 1996. Although Dr. Inman claims to have used theGuides to arrive at his conclusion, it is apparent that Dr. Inman is mistaken and his opinion is flawed. [22] The following is an excerpt from the comment section of the Guidelines dealing with evaluating psychiatric impairment:“Objective findings” are those findings which cannot come under the voluntary control of the patient. When determining physical or anatomical impairment, neither a physician (or any other medical provider) nor any Administrative Law Judge, the Workers’ Compensation Commission or the Courts may consider complaints of pain. For the purpose of making physical or anatomical ratings 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.
[23] It is clear that the fourth edition of the AMA GuidesThe decision not to use percentages for estimates of mental impairment in this fourth edition of the Guides
was made only after considerable thought and discussion. The second edition (1984) provided ranges of percentages for estimating such impairment. Mental functions, such as intelligence, thinking, perception, judgment, affect, and behavior, were considered to fall into five classes, and the ranges were given as follows: normal, 0% to 5%; mild impairment, 10% to 20%; moderate impairment, 25% to 50%; moderately severe impairment, 55% to 75%; and severe impairment, more than 75%. Ability to carry out daily activities was estimated as follows: class 1, self-sufficient; class 2, needs minor help; class 3, needs regular help; class 4, needs major help; and class 5, quite helpless. From estimates of the individual’s functioning, a whole-person impairment estimate could be made.
The procedure for the second edition was highly subjective. The third edition (1988) did not list percentages but instead provided the same classes of impairment as the fourth edition. There are some valid reasons to use ranges of percents for mental impairments. If this were done, the chapter on mental disorders would be consistent with Guides chapters for the other organ systems. Another point is that various systems for estimating disability have developed ranges of percentages; if such estimates were not provided in the Guides, the material in the Guides on mental disorders might be ignored. This would increase the likelihood that estimates would be made inconsistently in the various jurisdictions.
A more persuasive argument is that, unlike the situations with some organ systems, there are no precise measures of impairment in mental disorders. The use of percentages implies a certainty that does not exist, and the percentages are likely to be used inflexibly by adjudicators, who then are less likely to take into account the many factors that influence mental and behavioral impairment. Also, because no data exist that show the reliability of the impairment percentages, it would be difficult for Guides
users to defend their use in administrative hearings. After considering this difficult matter, the Committee on Disability and Rehabilitation of the American Psychiatric Association advised Guides contributors against the use of percentages in the chapter on mental and behavioral disorders of the fourth edition.
specifically rejected ratings as being too subjective, therefore they are not objective and measurable as required by the Commission. There is absolutely no evidence in the record of permanent impairment. The only evidence is the opinion of Dr. Inman which is not based upon measurable and objective findings as required by the Workers’ Compensation Act in Commission Rule 34. Dr. Inman’s opinion amounts nothing more to speculation and conjecture. Conjecture and speculation, even if plausible, cannot take the place of proof. Ark. Dept. of Correction v. Glover, 35 Ark. App. 32, 812 S.W.2d 692 (1991). Dena Construction Co. v.Herndon, 264 Ark. 791, 575 S.W.2d 155 (1970). Arkansas MethodistHospital v. Adams, 43 Ark. App. 1, 858 S.W.2d 125 (1993). It appears that Dr. Inman used the second edition of the AMA Guides
in assessing the claimant’s permanent impairment. The Commission has adopted the fourth edition of these Guides. Although Dr. Inman states these are objective and measurable they are based on an outdated edition of the Guides. [24] The claimant also had no neuropsychological testing prior to her accident. The evidence presented showed that the claimant had previously suffered from depression to the extent that she had twice attempted suicide. In addition Dr. Inman had stated in his deposition that problems with concentration and attention co-exist with depression. [25] Therefore based upon my de novo review of the record, I find that the permanent impairment assessed by Dr. Inman for the claimant is not based on objective and measurable findings and therefore is not in compliance with the Arkansas Workers’ Compensation Act and Rule 34 of the Commission. Therefore, I respectfully dissent from the majority opinion. [26] The majority finds that Chapter 4 is the proper chapter to be used when assessing the claimant’s permanent impairment. Even if Chapter 4 of the Guides, instead of Chapter 14, is applied to the assessment of the claimant’s permanent impairment, there still must be measurable and objective findings. In my opinion, there are no such findings in the record. The claimant’s neuropsych testing has revealed that the claimant is within the normal range. [27] I respectfully disagree with the majority’s finding that Ark. Code Ann. § 11-9-113 is not applicable to this claim. If I were to find that the claimant is entitled to any permanent disability benefits, which I do not find, it is my opinion that Ark. Code Ann. § 11-9-113 would apply. Ark. Code Ann. § 11-9-113
provides:
[28] Pursuant to subsection (b)(1), I find that the claimant is only entitled to a maximum benefit of 26 weeks. Further, at no time shall the claimant exceed a total of 26 weeks in all disability benefits (temporary total and permanent partial) combined. However, based upon my de novo of the record, I cannot find that the claimant has proven by a preponderance of the evidence that she has any permanent impairment. Accordingly, I must dissent from the majority’s opinion finding that the claimant is entitled to a 5% permanent impairment. [29] MIKE WILSON, Commissioner(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 also 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.
(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.