CLAIM NO. E408083
Before the Arkansas Workers’ Compensation Commission
OPINION FILED SEPTEMBER 3, 1996
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by RALPH M. PATTERSON, JR., Attorney at Law, North Little Rock, Arkansas.
Respondents represented by MARGARET M. NEWTON, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed.
[1] OPINION AND ORDER
[2] An Administrative Law Judge entered an opinion and order in the above-captioned case on November 8, 1995, finding that claimant had proven, by a preponderance of the credible evidence, his entitlement to a permanent impairment rating of 5% to the body as a whole. Respondents now appeal from that opinion and order, contending that claimant has not satisfied the prerequisites for an award of permanent benefits as established by Act 796 of 1993.
[5] On July 29, 1994, claimant consulted Dr. John L. Wilson, a Little Rock orthopedist who had previously treated him for a C6 fracture incurred during a 1979 automobile accident. By September 28, 1994, Dr. Wilson had determined that claimant did not require surgery and assessed him a 5% permanent impairment rating. [6] Respondents have raised several challenges to the rating issued by Dr. Wilson, beginning with the assertion that claimant’s compensable injury is not the major cause of said impairment, as required by Ark. Code Ann. § 11-9-102(5)(F)(ii). Concerning this issue, respondents point to claimant’s 1979 fracture at the C6 level, as well as Dr. Harshfield’s MRI findings of “degenerative changes” at the same location, and argue that “it is impossible to determine whether the 5% rating applies to the prior injury, the present injury, or represents a combination of the two.” We disagree. [7] Claimant’s last consultation with Dr. Wilson pertaining to the C6 fracture took place on November 12, 1979. Although claimant returned to Dr. Wilson a number of times after that date for various other injuries, the latter never issued a permanent impairment rating attributable to the 1979 cervical injury. It also appears that claimant never again complained of any difficulties associated with said injury. [8] In addition, claimant’s testimony, which we specifically find to be credible, established that he entered the U.S. Armed Forces in “either the first month of 1980, or late in 1979,” and went on to serve as a paratrooper with the Rapid Deployment Force. When asked if he had undergone a pre-induction physical, claimant answered in the affirmative. We are doubtful of the proposition that claimant would have been allowed to jump out of airplanes for the U.S. military if his cervical spine was permanently impaired. [9] Also of note is the fact that the 1979 injury is some fifteen years removed from that of June 8, 1994, and there is no indication from the record that claimant ever sustained any injury beyond the fracture at C6 as a result of the former. Finally, Dr. Wilson, as claimant’s longtime treating physician, had full knowledge of the 1979 injury when he issued a permanent impairment rating for claimant’s work-related injury in 1994 — yet in so doing he cited neither the first injury nor the degenerative changes noted by Dr. Harshfield as playing a causative role. [10] In light of the foregoing facts, we specifically find that claimant’s fracture at the C6 level had resolved by November 12, 1979 — long before he suffered a compensable injury on June 8, 1994 — and thus played no role in his eventual permanent impairment. Accordingly, we also specifically find that the compensable injury of June 8, 1994, was the major cause of the permanent anatomical impairment as assessed by Dr. Wilson on September 28, 1994. [11] Concerning respondents’ claim that there are insufficient objective findings on which to base a permanent impairment, we note first of all that a herniated disc is well beyond a patient’s ability to control, and certainly qualifies as “objective” insofar as medical findings are concerned. This finding, discovered a short time after claimant’s fall on June 8, 1994, corroborated his subjective complaint of neck pain immediately after the accident. Claimant also complained of continued neck pain on July 29, 1994, and Dr. Wilson noted muscle spasms in the cervical spine at the same time. By September 28, 1994, claimant still suffered from neck pain and, according to Dr. Wilson’s letter of that date, objective findings of spasms in the shoulder area were present. [12] Based on the MRI of June 8, 1994, and Dr. Wilson’s findings of muscle spasms on July 29 and September 28, 1994, we specifically find that claimant was possessed of sufficient objective findings on which to base a permanent impairment rating for his compensable injury. (See Ark. Code Ann. § 11-9-102(16). [13] As for respondents remaining points on appeal, we note that Dr. Wilson’s statements and opinions, including those relating to claimant’s permanent impairment, are of a definite character and do not tend toward equivocation. We thus specifically find that his opinions are stated with a reasonable degree of medical certainty, as required by Ark. Code Ann. § 11-9-102(16). [14] Finally, we find from Dr. Wilson’s letter of September 28, 1994, that claimant’s injury had stabilized. From our review of Table 75(II)(c) of the American Medical Association’s Guides toEvaluation of Permanent Impairment, (4th Ed.), we further specifically find that Dr. Wilson’s assessment of a 5% permanent anatomical impairment rating is within the appropriate limits for an unoperated herniated nucleus pulposus (with or without radiculopathy) in the cervical spine. [15] Based on our de novo review of the entire record, and for the reasons discussed herein, we specifically find that claimant has proven, by a preponderance of the credible evidence, that he is entitled to the 5% permanent anatomical impairment rating issued by Dr. Wilson on September 28, 1994. The decision of the Administrative Law Judge must therefore be, and hereby is, affirmed. [16] 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). [17] For prevailing on this appeal before the Full Commission, claimant’s attorney is hereby awarded an additional attorney’s fee in the amount of $250.00 as provided by Ark. Code Ann. §11-9-715(b) (Repl. 1996). [18] IT IS SO ORDERED.The examination reveals encroachment on the central canal by the herniated disc at C5-C6. No forminal stenosis is associated with this. There are degenerative changes noted at this level, including ossification of the anterior-longitudinal ligament suggesting a chronic etiology. The altered MR appearance of the odontoid process of C2 should be evaluated with plain file tomography to determine if there is a congenital variation of anatomy or if the changes could be acute.
JAMES W. DANIEL, Chairman PAT WEST HUMPHREY, Commissioner
[19] Commissioner Holcomb dissents.