CONNELL v. WAL-MART STORES, INC., 1998 AWCC 321

CLAIM NO. E501467

DORIS CONNELL, EMPLOYEE, CLAIMANT v. WAL-MART STORES, INC., SELF-INSURED EMPLOYER, RESPONDENT

Before the Arkansas Workers’ Compensation Commission
OPINION FILED AUGUST 31, 1998

Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.

Claimant represented by the HONORABLE EDDIE H. WALKER, JR., Attorney at Law, Fort Smith, Arkansas.

Respondents represented by the HONORABLE ANGELA DOSS, Attorney at Law, Fayetteville, Arkansas.

Decision of Administrative Law Judge: Affirmed and Adopted in part; affirmed as modified in part.

[1] OPINION AND ORDER
[2] The respondent appeals and the claimant cross-appeals an opinion and order of the Administrative Law Judge filed December 5, 1997. In said order, the Administrative Law Judge made the following findings of fact and conclusions of law:

1. The Arkansas Workers’ Compensation Commission has jurisdiction of this claim.
2. On July 22, 1994, the relationship of employee-self insured employer existed between the parties.
3. On July 22, 1994, the claimant earned wages sufficient to entitle her to weekly compensation benefits of $132.00.
4. On July 22, 1994, the claimant sustained a compensable injury to her right knee, in the form of a tear of the medial meniscus in the area of the anterior horn.
5. The claimant subsequently experienced a compensable consequence or complication of this initial compensable injury, which was in the form of reflex sympathetic dystrophy (RSD). This condition was causally related to and was a direct and proximate consequence of the claimant’s initial compensable right knee injury and required medical treatment.
6. There is no dispute, at the present time, over the payment of any medical expenses.
7. There is no dispute over the payment of temporary total disability benefits accruing through July 29, 1995. All such benefits have been previously paid.
8. The claimant has proven by the greater weight of the credible evidence presented that she continued to be temporarily totally disabled, as a result of either of the effects of her initial compensable right knee injury or her subsequent compensable RSD, for the period of July 30, 1995, through September 26, 1995. The claimant has failed to establish her entitlement to any temporary disability benefits after September 26, 1995.
9. The claimant’s healing periods from the effects of both the initial compensable right knee injury and the subsequent compensable consequence in the form of RSD ended on September 26, 1995.
10. The initial compensable injury to the claimant’s right knee constitutes an injury to a portion of her body that is “Scheduled” under Ark. Code Ann. § 11-9-521.
Therefore, the claimant’s entitlement to permanent benefits attributable to this injury is controlled by the provisions of this subsection.
11. The claimant’s compensable consequence or complication, in the form of RSD, is not to a portion of her body that is “scheduled” under the Act. Therefore, her entitlement to permanent benefits attributable to this condition is controlled by the provisions of Ark. Code Ann. § 11-9-522.
12. The claimant has failed to prove by the greater weight of the credible evidence that she has been rendered permanently totally disabled as the result of the effects of either or both compensable right knee injury and/or the subsequent compensable consequence or complication in the form of RSD.
13. Under Ark. Code Ann. § 11-9-521 the claimant is limited to permanent benefits attributed solely to permanent physical impairment resulting from her initial compensable right knee injury. The greater weight of the credible evidence establishes such permanent physical impairment to be in the amount of 8% to the leg between the hip and knee.
14. Under the provisions of Ark. Code Ann. § 11-9-522, the claimant may be awarded permanent benefits for both permanent physical impairment and permanent partial “disability” resulting from the compensable consequence or complication of RSD. The claimant has proven by the greater weight of the credible evidence presented, the existence of some degree of permanent physical impairment or loss of body function as a result of the effects of the compensable consequence or complication of RSD. She has further proven that the existence of this permanent physical impairment or loss of body function is supported by “objective and measurable physical findings” as those terms are defined in the Act. However, the actual extent or degree of such permanent physical impairment cannot be calculated in a manner which complies with the provisions of the Act. Therefore, no award of permanent benefits can be made for permanent physical impairment attributable to the claimant’s compensable complication of RSD. The claimant has further proven by, the greater weight of the credible evidence presented, that as a result of her RSD, she has experienced permanent loss of wage earning capacity or a permanent partial “disability” (as that term is defined in the Act) in the amount of 30% to the body as a whole. Thus, the claimant would be entitled to permanent benefits, under Ark. Code Ann. § 11-9-522(b) for such permanent partial “disability” or loss of wage earning capacity.
15. The respondent has controverted the claimant’s entitlement to any temporary total disability benefits accruing after July 29, 1995 and her entitlement to any permanent disability benefits in excess of 8% to the leg between the hip and knee. The respondent has specifically controverted the claimant’s entitlement to any permanent benefits attributable to the claimant’s reflex sympathetic dystrophy (RSD).
16. A reasonable fee for the claimant’s attorneys is the maximum statutory attorney’s fee on all controverted benefits herein awarded. No allocation of this fee, is made at the present time, between the claimant’s various attorneys. Such a determination is specifically reserved for future determination, when and if necessary.

[3] We have carefully conducted a de novo review of the entire record herein and it is our opinion that the Administrative Law Judge’s findings No. 1-13 and 15-16 are supported by a preponderance of the credible evidence, correctly apply the law, and should be affirmed. Specifically, we find from a preponderance of the evidence that these findings made by the Administrative Law Judge are correct and they are, therefore, adopted by the Full Commission. We therefore affirm these findings of fact and conclusions of law therein, and adopt the opinion of the Administrative Law judge on these issues as the decision of the Full Commission on appeal. [4] With regard to finding No. 5, we note that it has been asserted on appeal that the claimant failed to establish that she sustained reflex sympathetic dystrophy (RSD) as a compensable consequence of her admittedly compensable right knee injury. In this regard, the claimant sustained an admittedly compensable right knee injury on July 22, 1994. Arthroscopic surgery was performed on the claimant’s knee by Dr. John Mertz, an orthopedist, in January of 1995. He assigned an 8% impairment rating, which was accepted and paid by respondents. [5] However, the record also establishes that subsequently, the claimant began to experience a combination of symptoms that involved her right lower extremity. Dr. Mertz, her primary treating physician has stated unequivocally that claimant suffers from RSD. In a chart note dated January 30, 1997, Dr. Mertz stated that claimant suffered from “chronic reflex sympathetic dystrophy of the right knee and right lower extremity.” In a letter to attorney David K. Harp dated February 28, 1997, Dr. Mertz attributed claimant’s RSD to her work-related injury. Moreover, the physician chosen by respondents to conduct an IME, Dr. Rodger C. Dickinson, also concluded that claimant has RSD. When he examined claimant, Dr. Dickinson detected diffuse swelling and some mottling of the leg. His report reflected that claimant’s bone scan showed evidence of “fairly diffuse uptake around the knee.” He pointed out that such a finding is consistent with a diagnosis of RSD. Dr. Dickinson’s deposition testimony isentirely consistent with his report with respect to claimant’s diagnosis of RSD. [6] The claimant was also treated by Dr. William Money and Dr. M. Carl Covey, anesthesiologists and chronic pain management specialists. Drs. Money and Covey were far more equivocal regarding the claimant’s diagnosis. However, there is no
indication in chart notes prepared by either Dr. Covey or his partner Dr. Money that either physician ever opined that the claimant has not sustained RSD. [7] After considering the opinions and records of Dr. Mertz, Dr. Dickinson, Dr. Covey, Dr. Money, and all other evidence properly in the record, we find that the greater weight of the credible evidence in the record establishes that the claimant developed RSD as a consequence of her original work-related injury. The diagnosis of RSD is supported by objective findings, including the abnormal triple phase bone scan as well as the diffuse swelling of her right lower extremity and slight skin mottling of her right lower extremity, which her physicians have observed. [8] With regard to the Administrative Law Judge’s award of a 30% wage loss attributable to the claimant’s unscheduled RSD in finding No. 14, we note that the claimant was employed as a checker by the respondent when she sustained her original work-related knee injury in 1994. The claimant was 61 years old at the time of the hearing in 1997. The claimant has a 12th grade education and cosmetology training. The evidence indicates that the claimant operated her own beauty shop for 14 to 16 years. As a result of a functional capacity evaluation performed in April of 1995, the claimant’s work restrictions have been identified as light-duty in nature, namely avoiding squatting and kneeling, engaging in frequent reversals of posture and positions, alternating standing, sitting and walking. However, these restrictions appear to be primarily associated with the claimant’s scheduled knee injury, and not associated with her subsequent reflex sympathetic dystrophy syndrome. [9] Dr. Dickinson testified that reflex sympathetic dystrophy is a condition involving the sympathetic nervous system. Thus, reflex sympathetic dystrophy is a pain syndrome, so that the claimant’s physical restrictions for her reflex sympathetic dystrophy are basically limited by the amount of pain that she can tolerate. Dr. Dickinson indicated that there are no activities which would cause the reflex sympathetic condition to become worse, but that there are a lot of things that the claimant cannot do or tolerate due to chronic pain and discomfort. Dr. Dickinson also opined that the main component of the claimant’s problem is chronic reflex sympathetic dystrophy. [10] To the extent that the respondent asserts on appeal that the claimant could presently be employed by the respondent earning the same or greater wages if she would return to work, we point out that Dr. Holder indicated on March 27, 1995:

Ideally, Wal-mart would find her something to do so that she can go back to work with some kind of limitation. She says she had a stool she could work on, but they took it away from her. Treating her depression would certainly be instrumental in getting her back to work. I would estimate it to be another 2-3 months before she is functional again and able to do her regular job.

[11] Then, on June 11, 1995, Dr. Mertz indicated in correspondence to Dr. Holder:

As by letter of April 29, states, I do not believe that she will be able to work at Wal-Mart again and that she is impaired from this type of work.

[12] On September 26, 1995, approximately eight months after the claimant last worked for Wal-Mart, Dr. Mertz again indicated in a letter to Dr. Holder:

[S]he needs to be in a permanently lighter duty type of job under the guidelines that were outlined on April 10, 1995, through her Workfit Analysis at Arkansas Physical Therapy. I still agree with those recommendations and it does not appear that she can work in her previous job.

[13] In light of these reports indicating that the claimant shouldnot return to her prior job, we find no merit in respondent’s argument that the claimant could have, or should have, returned to her checking duties when her temporary total disability ended on September 26, 1995. [14] However, as the respondent also notes, the record in this case indicates that the claimant has made no attempt to pursue any employment anywhere, between September of 1995, when her healing period ended, and September of 1997, when the hearing was held. The claimant testified that her current limitations include weakness in her right knee, and problems with the bottom of her foot and her hip. The claimant testified that her problem primarily is pain. The claimant testified that she cannot shower because of throbbing pain caused by water hitting her leg. The claimant testified that she has difficulty going down stairs because it feels like her knee is going to give out. The claimant testified that she sits with her leg straight and elevated on a pillow and sleeps with her leg on a pillow. The claimant testified that she can stand without needing to sit and rest for approximately 10-15 minutes. [15] The claimant testified that prior to working at Wal-Mart, she worked approximately one year as a deli manager making and selling sandwiches at a mall. Prior to that job, the claimant worked approximately one year as a cashier at a gas station. The claimant also owned her own beauty shop for a number of years during an earlier period. [16] After consideration of the claimant’s age, education, prior work experience, the pain limitation associated with her reflex sympathetic dystrophy, and all other relevant factors, we find that the claimant has sustained a permanent decrease in her wage earning capacity of 15% rated to the body as a whole attributable to her non-scheduled reflex sympathetic dystrophy condition. In reaching that decision, we note that the claimant has shown no motivation to attempt to return to work since she last worked for Wal-Mart in February or March of 1995. Although the claimant apparently perceives herself as totally disabled from returning to work, we note that the claimant has work experience in light sales from jobs prior to Wal-Mart, in addition to many years of experience in business as a beautician. Although the claimant has suggested that she is constrained to keep her leg raised, which would of course preclude many types of employment, we note that no physician has placed this physical restriction on the claimant as a prerequisite to returning to work. Moreover, the claimant has simply failed to seek any additional employment since early 1995 to determine the extent that her chronic pain syndrome may impede her ability to perform light-duty-category work. As the Administrative Law Judge noted, light-duty sales, clerical and manufacturing positions are within the claimant’s physical restrictions, limitations and requirements. While the claimant’s stamina to return to full time employment and her pain tolerance at work are both certainly somewhat unknown factors at this point, we believe that the claimant should be able to find employment which does not involve stair climbing and which will allow the claimant alternative sitting, standing and walking without squatting and kneeling, if and when the claimant determines to apply for additional work. Obviously, the claimant could make or answer telephone calls. Consequently, for the reasons discussed herein, we find that the Administrative Law Judge’s finding No. 14 must be affirmed as modified. [17] All accrued benefits shall be paid in a lump sum without discount and with interest thereon at the lawful rate from the date of the Administrative Law Judge’s decision in accordance with Ark. Code Ann. § 11-9-809 (Repl. 1996). [18] For prevailing in part on this appeal before the Full Commission, claimant’s attorney is hereby awarded an additional attorney’s fee in the amount of $250.00 in accordance with Ark. Ann. § 11-9-715 (b) (Repl. 1996). [19] IT IS SO ORDERED.

ELDON F. COFFMAN, Chairman

[20] Commissioner Humphrey concurs in part and dissents in part. [21] CONCURRING AND DISSENTING OPINION
[22] I concur in the finding that claimant’s reflex sympathetic dystrophy (RSD) is a compensable consequence of her work-related knee injury. However, I must respectfully dissent from the finding that claimant failed to demonstrate that she is permanently and totally disabled. [23] Claimant is 61 years of age. She is a high school graduate. Claimant has also completed a cosmetology course. She is unable to work as a cashier because her leg must be extended when she sits. She stated that she often experiences pain while seated. Claimant acknowledged that she previously worked in a deli preparing sandwiches, which required her to stand throughout the day. She stated that she is only capable of standing for periods of 10-15 minutes at a time without rest. Although claimant owned and operated a hair salon for approximately 16 years, she stated that she is no longer able to perform this type of work. Claimant explained that hair care requires extended standing. [24] Claimant continues to take medication. She takes amitriptyline for sleep. Claimant stated that she also takes medication for swelling and fluid retention. Also, claimant takes over-the-counter medication for pain. She stated that she is unable to shower because the force of the water causes throbbing pain in her lower right extremity. [25] Upon his initial review of the functional capacity test performed in February of 1995, Dr. Mertz opined that claimant was capable of performing light duty work. However, in a report dated April 14, 1995, he imposed significant restrictions on her activities. Specifically, he indicated that she should avoid squatting, kneeling, and work below knee level. He indicated that she should engage in work that permitted frequent position reversal so as to avoid stress to her knees. Dr. Mertz advised against ladder climbing, and stated that any stair climbing should be infrequent. However, it is clear that he altered his position. In a clinic note dated March 24, 1997, Dr. Mertz stated that “[claimant] is still totally disabled and has been since January 16, 1995.” With respect to claimant’s limitations following the RSD diagnosis, Dr. Dickinson addressed this issue in his deposition testimony. As his testimony illustrates, enumerating physical restriction with a diagnosis of RSD presents a unique challenge. In this regard, Dr. Dickinson stated:

I don’t think that any activity itself is going to be I would say injurious, make her condition worse. There are a lot of things that she just cannot do or cannot tolerate due to her chronic pain and discomfort. But I’m not sure that there’s any activity that’s going to make it any worse . . . She just can’t tolerate a lot of different activities.

[26] After considering claimant’s age, education, work history, physical restrictions resulting from her knee injury and chronic RSD, I find that she is permanently and totally disabled. [27] Finally, I wish to comment on the downward modification of claimant’s wage loss award. This is particularly tragic in a case involving an injured worker with chronic reflex sympathetic dystrophy, which is a complex and painful syndrome. [28] To support a finding that claimant is only entitled to an award equal to 15% to the whole body, the principal opinion cites claimant’s lack of motivation to return to the work force. Moreover, the opinion states that “claimant apparently perceives herself as totally disabled from returning to work . . . ” This suggests that the only evidence in the record to support a finding of permanent and total disability is claimant’s perception of her limitations. I cannot agree. In a clinic note dated March 24, 1997, Dr. Mertz stated that claimant is “totally disabled and has been since January 16, 1995.” In my opinion, this report is entitled to great weight. Moreover, claimant testified that she is incapable of returning to the work force as a result of her limitations. Accordingly, I find no basis whatsoever for reducing claimant’s wage loss award. [29] For the foregoing reasons, I concur in part and respectfully dissent in part. [30] PAT WEST HUMPHREY, Commissioner [31] Commissioner Wilson dissents. [32] DISSENTING OPINION
[33] I respectfully dissent from the majority opinion finding that claimant sustained reflex sympathetic dystrophy as a compensable consequence of her admittedly compensable right knee injury. Since I find claimant has failed to prove by a preponderance of the evidence that her reflex sympathetic dystrophy (hereinafter RSD) is a compensable consequence of claimant’s right knee injury, I find that claimant has failed to prove entitlement to any wage loss disability as she has failed to prove that she sustained a compensable injury to the body as a whole. [34] It is undisputed that claimant sustained a compensable injury to her right knee on July 22, 1994. Although claimant’s testimony at the hearing was somewhat confusing with regard to when she first experienced a slip and fall accident, the medical records clearly provide a history of having sustained an injury in July of 1994 when claimant began having knee pain when she was kneeling down to clean her stall which had followed an injury to claimant’s knee several months prior when she slipped on a wet floor at work. As a result of claimant’s compensable right knee injury the claimant underwent surgery to her knee in January of 1995 performed by Dr. John D. Mertz. In his January 27, 1995, report, Dr. Mertz notes, “Doris returns 11 days post right knee arthroscopic debridement of an anterior horn medial meniscus tear. She has improved.” As a result of claimant’s compensable right knee injury and arthroscopic procedure, claimant was assigned an 8% physical impairment rating to claimant’s right lower extremity which was accepted and paid by respondent. On March 27, 1995, the claimant was examined by Dr. Holder as she continued to complain of pain in and about her right knee. Dr. Holder noted:

She does have some effusion in the knee, some areas of tenderness. She has considerable quadriceps atrophy on the right. She needs to be convinced that she can use the knee. She is not using the knee now, and is getting worse. . . .

[35] In his June 11, 1995, correspondence to Dr. Holder, Dr. Mertz indicates that claimant had been seen by Dr. M. Carl Covey an anesthesiologist and pain management consultant. Dr. Covey’s medical records from that initial visit were not introduced into evidence. However, Dr. Mertz noted:

Doris has been to see Dr. Covey who didn’t specifically feel that she has reflex dystrophy, although Dr. Covey did feel that she might have some component of persistent neuralgic type pain which could explain some of the below the knee pain and some of the shin pain. Her three phase bone scan ordered by him done on May 24, 1995, at St. Mary’s showed increased activity in the region of the right knee, distal femur region which could be consistent with reflex dystrophy. We do not feel that she has septic arthritis and an inflammatory arthropathy is unlikely. She does complain of some left wrist pain, swelling and she’s on Lodine and Amitriptyline. (emphasis added)

[36] Claimant was seen by Dr. Covey’s partner Dr. William Money on July 3, 1995. Dr. Money’s report of that date was introduced into evidence. His physical examination on that date revealed:

There is no temperature difference between the legs. There is no hypersensitivity, no molting, and no cyanosis. Because of the lack of response to conservative therapy, she is sent for lumbar paravertebral sympathetic block.

[37] Claimant returned to Dr. Money on July 19, 1995. On that date, Dr. Money noted the following during his physical exam:

There is no temperature difference between the legs, no hypersensitivity, no molting and no cyanosis. Because of her positive response to her initial and only lumbar paravertebral sympathetic block, she gives informed consent to repeat the procedure.

[38] Claimant returned to Dr. Money on August 9, 1995. Again, he noted no hypersensitivity, molting or cyanosis. However, he did detect a slight temperature difference with the right leg being approximately two to three degrees warmer than claimant’s left leg. Dr. Money stated, “There does not appear to be any tenderness whatsoever of the knee that I can elicit.” Due to claimant’s improvement with sympathetic blocks, Dr. Money again repeated the process however he performed the sympathetic block “via the epidural route.” According to the medical records introduced into evidence, the claimant was seen by Dr. Covey on September 1, 1995. At that time, Dr. Covey noted:

Ms. Connell returns today for follow-up. Apparently her reflex sympathetic dystrophy symptoms have nearly completely resolved. The temperature and appearance of both lower extremities are identical, and she is having none of the residual dysesthetic pain or vasomotor symptoms. She says now that her only problem is this persistent deep, achy, right knee pain that may or may not be correctable surgically; it may just be medical degenerative disease of the joint.

[39] In June of 1996, claimant underwent an examination by Dr. Rodger Dickinson at respondent’s request for a second opinion. After examining the claimant, and reviewing her medical records, Dr. Dickinson noted:

I agree with the present assessment. I believe that what she has is reflex sympathetic dystrophy of the right leg. The diagnosis of reflex sympathetic dystrophy is pain which is not proportionate to the amount of trauma or physical findings. I think this is consistent etiology that is somewhat obscure. She has had all the appropriate testing and measures of blocks, medications, and has had only minimal response. I doubt seriously if she will have any significant improvement. I think it is certainly reasonable that if her pain gets worse to consider repeat injections and medications. However, I do not feel that anything currently is going to resolve her or significantly improve her.

[40] In order to prove the compensability of an alleged compensable consequence, all requirements for proving compensability apply. Claimant must meet her burden to prove that the treatment and diagnosis of her RSD is a compensable consequence by a preponderance of the evidence and she must meet this burden by presenting medical evidence supported by objective findings. Morever, medical opinions addressing compensability must be stated within a reasonable degree of medical certainty. See Ark. Code Ann. § 11-9-102(5)(B) and 11-9-102(16). Except in the most obvious cases, the existence of a causal relationship must be established by expert medical opinion. Billy Wayne Jeter v. B RMcGinty Mechanical, Full Commission Opinion filed March 6, 1997 (E208256), affirmed, ___ Ark. App. ___, ___ S.W.2d ___ (May 6, 1998). Ortho R. Wells v. Armstrong Rubber Co., Full Commission Opinion April 14, 1997 (D100998); and Carolyn Jackson v. BosleyConstruction, Inc., Full Commission Opinion March 6, 1997 (E009401); and John Cotton v. Ball and Prier, Full Commission Opinion September 23, 1997 (E512437). [41] In Dr. Covey’s and Dr. Money’s medical records, portions of which are set forth above, it is noted that neither doctor diagnosed claimant with reflex sympathetic dystrophy. Rather, when Dr. Covey first saw claimant, his impression was of a neuralgia type pain, “possibility of reflex sympathetic dystrophy”. (emphasis added) Throughout her treatment with Dr. Covey and Dr. William Money, claimant was never diagnosed with RSD. At best, it was only noted that claimant had a “possibility” of this syndrome with some symptoms suggestive of RSD. It was from these medical reports of Dr. Covey and Dr. Money that the other physicians considered the diagnosis of possible RSD to account for claimant’s unaccountable complaints of pain. However, it is of particular importance and interest that in his January 31, 1996, report Dr. Covey again never opined within a reasonable degree of medical certainty that claimant in fact suffered from RSD. Rather, Dr. Covey noted:

She is back for re-evaluation today. When I saw her last in September of 1995, she had had resolution of a lower extremity reflex sympathetic dystrophy type phenomenon. Her chief complaint today is primarily left shoulder and left upper extremity pain. She also has occasional episodes of left lower extremity pain. It is mostly arthritic. She has right knee pain as well.

[42] At that time, Dr. Covey diagnosed claimant with “chronic pain disorder, arthritis, osteoarthritis, and some apparent degree of fibromyalgia.” He did not include a diagnosis of RSD. All symptoms suggestive of RSD had resolved by September 1995, leaving claimant with only unaccountable pain complaints. Despite Dr. Covey’s final impression on January 31, 1996, claimant’s remaining physicians continued to conclude that claimant suffered from RSD. These physicians did not explain why they continue to maintain this diagnosis after Dr. Covey and Dr. Money, specialists in pain disorders, unequivocally noted that claimant had resolved all of her reflex sympathetic dystrophy type symptoms. [43] Furthermore, when Dr. Dickinson’s deposition is reviewed, I am not persuaded by a preponderance of the evidence that this deposition supports a finding of RSD based upon a medical opinion stated within a reasonable degree of medical certainty. Dr. Dickinson likened RSD to a wastebasket diagnosis. Moreover, I note that Dr. Dickinson is a orthopedic surgeon and does not specialize in the field of anesthesiology, or nervous system disorders. Accordingly, I place greater weight on the medical opinions of Dr. Covey and Dr. Money; specialists in the field of pain disorders, pain management and anesthesiology, to determine whether claimant in fact suffers from RSD. The Commission has the authority to accept or reject medical opinions, and its resolution of the medical evidence has the force and effect of a jury verdict. McClain v. Texaco, Inc., 29 Ark. App. 218, 780 S.W.2d 34
(1989). [44] Both Dr. Covey and Dr. Money are unable to conclude after examining and treating claimant that she in fact suffers from RSD within a reasonable degree of medical certainty. At best, they describe RSD type symptoms or phenomenon with a possible diagnosis of RSD. In my opinion a possible diagnosis, even by specialists in the field is not sufficient to satisfy a diagnosis within a reasonable degree of medical certainty. Therefore, I find that claimant has failed to prove by a preponderance of the evidence that her RSD is a compensable consequence of claimant’s compensable right knee injury. [45] Since I find that claimant has failed to prove the compensability of alleged RSD, I find that claimant has not proven that she sustained an injury to the body as a whole and is therefore not entitled to any permanent partial disability benefits over and above the rating set forth for claimant’s scheduled injury. Moreover, I feel compelled to point out the flawed logic in the majority’s award of wage loss benefits. The majority assumes that claimant has to have some unratable physical impairment for her RSD type symptoms. However, in order to have an impairment, the condition must be permanent. Drs. Covey and Money, specialists in pain disorders, both found that all of claimant’s RSD type symptoms resolved. If the symptoms resolved, they cannot be permanent. See Tipton v. Arkadelphia PublicSchools, Full Commission Opinion September 11, 1997 (E506048); rev’d in unpublished opinion on June 3, 1998, CA97-1505. Without an impairment, rateable or otherwise, wage loss benefits are inappropriate as Ark. Code Ann. § 11-9-522(b)(1) (Supp. 1997) only provides for wage loss “in excess” of a permanent anatomical impairment. In my opinion, the majority has clearly resorted to impermissible speculation in awarding permanent benefits for anything other than claimant’s scheduled injury impairment. Therefore, I respectfully dissent from the majority opinion. [46] MIKE WILSON, Commissioner