CLAIM NO. E712419
Before the Arkansas Workers’ Compensation Commission
OPINION FILED MAY 12, 1999
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by DANIEL WREN, Attorney at Law, Little Rock, Arkansas.
Respondent represented by MIKE ROBERTS, 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 September 21, 1998, finding that claimant has proven entitlement to a physical impairment rating. Based upon our de novo review of the entire record, we find that claimant has failed to meet his burden of proof. Therefore, we find that the decision of the Administrative Law Judge must be, and hereby is, reversed. [3] This matter was submitted to the Administrative Law Judge on briefs of the parties and on Dr. Steven A. Kulix’s March 30, 1998 report. The sole issue to be decided by the Administrative Law Judge, and on appeal, is whether claimant has proven entitlement to the 5% whole person impairment assigned by Dr. Kulix. [4] The burden of proof rests upon the claimant to prove the compensability of his claim. Ringier America v.Comles, 41 Ark. App. 47, 849 S.W.2d 1 (1993). There is no presumption that a claim is compensable, that the claimant’s injury is job-related or that a claimant is entitled to benefits.Crouch Funeral Home v. Crouch, 262 Ark. 417, 557 S.W.2d 392 (1977); O.K. Processing, Inc. v. Servold, 265 Ark. 352, 578 S.W.2d 224 (1979). The party having the burden of proof on the issue must establish it by a preponderance of the evidence. Ark. Code Ann. § 11-9-704(c)(2) (Repl. 1996). In determining whether a claimant has sustained his burden of proof, the Commission shall weigh the evidence impartially, without giving the benefit of the doubt to either party. Ark. Code Ann. § 11-9-704; Wade v. Mr. C Cavenaugh’s, 298 Ark. 363, 768 S.W.2d 521 (1989); and Fowler v. McHenry, 22 Ark. App. 196, 737 S.W.2d 663 (1987). [5] Ark. Code Ann. § 11-9-704(c)(ii)(B) provides:
[6] “Objective findings” are those findings that cannot come under the voluntary control of the patient. Ark. Code. Ann. §11-9-102(16)(A)(i). Furthermore, Ark. Code Ann. §11-9-102(16)(A)(ii) states:Any determination of the existence or extent of physical impairment shall be supported by objective and measurable physical or mental findings.
[7] In Department or Parks and Tourism v. Helms, 60 Ark. App. 110, ___ S.W.2d ___ (1998), the Arkansas Court of Appeals stated:When determining physical or anatomical impairment, neither a physician, any other medical provider, an Administrative Law Judge, the Workers’ Compensation Commission, nor the courts may consider complaints of pain; for the purpose of making physical or anatomical impairment ratings to the spine, straight-leg raising tests or range of motion tests shall not be considered objective findings.
[8] The evidence in this case reveals that claimant’s impairment rating was assigned solely upon claimant’s range of motion testing. The only medical record introduced into evidence assesses claimant’s condition as follows:It was incumbent upon appellee to present evidence that active range of motion tests are objective tests. In other words, it was incumbent upon her to present proof that these tests do not come under the voluntary control of the patient. She did not do so. In fact, there is authority to suggest that active range of motion tests are based almost entirely upon the patient’s cooperation and effort . . .
[9] The radiographs did reveal a healed fracture. However, Dr. Kulik did not consider the healed fracture in assessing claimant’s impairment. Dr. Kulik’s finding with regard to claimant’s impairment rating is as follows:Healed fracture with some loss of motion, both in ankle dorciflexion and foot inversion, eversion.
[10] A review of Dr. Kulik’s March 30, 1998 report clearly reveals that the impairment ratings he assigned were for claimant’s restricted range of motion. There were no objective medical findings, as that term has been defined, supporting the impairment rating assigned. Consequently, we find that claimant has failed to prove by a preponderance of the evidence entitlement to the impairment ratings assigned by Dr. Kulik. These ratings are obviously based upon subjective criteria which do not meet the statutory definition of objective medical findings. Accordingly, in our opinion, it would be improper to award an impairment based upon these subjected findings. [11] Therefore, for those reasons set forth herein, we find that the decision of the Administrative Law Judge should be reversed. [12] IT IS SO ORDERED. _______________________________His disability rating would be 3% for his ankle motion lack of extension, which would be 7% lower extremity, and 10% foot impairment. He would also have for his lack of subtalar motion 2% whole person, 5% lower extremity, and 7% impairment. When you combine the whole person values from the ankle and the hindfoot, according to the combined values chart 5% whole person disability.
ELDON F. COFFMAN, Chairman _______________________________ MIKE WILSON, Commissioner [13] Commissioner Humphrey dissents. [14] DISSENTING OPINION
[15] I must respectfully dissent from the opinion of the majority finding that claimant is not entitled to benefits for permanent anatomical impairment. Claimant sustained an admittedly severe fracture to the heel of his foot and eventually underwent open reduction and internal medal fixation to repair the shattered bones. This hardware remains in claimant’s foot. Although the Act may prohibit an award of benefits in this situation, common sense indicates that a permanent anatomical impairment surely results from such an injury and in particular, because of the hardware remaining in claimant’s foot. This is just another example of the many injustices resulting from Act 796 of 1993. As a result of the Act, claimants typically receive inadequate or no compensation whatsoever for their work-related injuries. [16] ______________________________ PAT WEST HUMPHREY, Commissioner