CLAIM NO. F102474
Before the Arkansas Workers’ Compensation Commission
OPINION FILED AUGUST 13, 2003
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by HONORABLE RANDOLPH SHOCK, Attorney at Law, Fort Smith, Arkansas.
Respondents represented by HONORABLE CURTIS NEBBEN, Attorney at Law, Fayetteville, Arkansas.
Decision of the Administrative Law Judge: Reversed.
OPINION AND ORDER
The respondents appeal an opinion and order filed by the Administrative Law Judge on December 31, 2002. In that opinion and order, the Administrative Law Judge found that the claimant has sustained a permanent anatomical impairment as the result of her compensable injury in the amount of 7% rated to the body as a whole. In addition, the Administrative Law Judge found that the claimant has experienced an additional 5% loss of wage-earning capacity also rated to the body as a whole. After conducting a de novo review of the entire record, we find that the preponderance of the evidence fails to establish a compensable anatomical impairment attributable to the claimant’s work-related injury. We therefore reverse the Administrative Law Judge’s award of a 7% permanent anatomical impairment rated to the body as a whole. We are likewise therefore constrained by law to reverse the Administrative Law Judge’s award of a 5% loss of wage-earning capacity rated to the body as a whole.
Ark. Code Ann. § 11-9-704(c)(1)(B) provides that “[a]ny determination of the existence or extent of physical impairment shall be supported by objective and measurable physical or mental findings.” Ark. Code Ann. § 11-9-102(16) defines “objective findings” as “those findings which cannot come within the voluntary control of the patient.” In addition, the Commission has adopted the AMA Guides to the Evaluationof Permanent Impairment (4th Edition 1993) exclusive of any sections which refer to pain and exclusive of straight leg raising tests or range-of-motion tests when making physical or anatomical impairment ratings to the spine. See Commission Rule 34; see also Ark. Code Ann. §§ 11-9-519(h), 11-9-521(h), and 11-9-522(g).
In the present case, we find that the record fails to indicate the presence of any objective physical findings sufficient to support the presence of a permanent anatomical impairment ratable under the AMA Guidesto the Evaluation of Permanent Impairment (4th Edition 1993). In reaching this decision, we note that Dr. Bradley Short assigned the claimant a 5% anatomical impairment on October 29, 2001 pursuant to DRE Lumbosacral Category II on page 3/102 of the 4th Edition of the AMA Guides. For his part, the Administrative Law Judge rejected Dr. Short’s application of the AMA Guides, and the Administrative Law Judge assigned the claimant a 7% permanent anatomical impairment pursuant to Section II.C in Table 75 on page 3/113 of the AMA Guides for abnormalities at the L5-S1 level of the claimant’s lumbar spine. In taking this course of action, the Administrative Law Judge correctly rejected Dr. Short’s 5% impairment rating based on the failure of Dr. Schwartz to indicate what objective findings, if any, might support a 5% impairment rating under DRE Lumbosacral Category II on page 3/102 of the AMA Guides.
For his part, the Administrative Law Judge based his 7% impairment rating on objective diagnostic testing which indicated that the claimant at one point was experiencing disk bulging at the L5-S1 level of the spine with impingement of the S1 nerve roots as established by objective diagnostic testing performed in March of 2001, approximately one month after the claimant’s work-related back injury lifting a patient that occurred on February 19, 2001. While these diagnostic test results would certainly support a 7% impairment rating pursuant to Section II.C of Table 75 on page 3/113 of the AMA Guides, these diagnostic test results clearly do not establish the existence of a permanent injury and impairment in the present case because subsequent diagnostic testing performed in May of 2001 indicates that both the disk bulge and nerve root compression had resolved. We see no indication in Section 3.3 or any other section of the AMA Guides to the Evaluation of PermanentImpairment, or in any medical reports presented in this case, which would indicate that the methods of providing an anatomical impairment rating under either the diagnosis-related estimates in Section 3.3(g) or the range-of-motion model in Section 3.3(j) provide a permanent anatomical impairment rating for an intervertebral disk which initially bulges but later goes back into place, as the claimant’s physician, Dr. Karen Perry, seems to have concluded has occurred in this case in her report on May 10, 2001. Because we fail to see any indication that the AMA Guides
provides a permanent anatomical impairment for a transient disk bulge and nerve root compression that resolve, we are constrained to find that the claimant’s diagnostic testing indicative of disk bulge and nerve root compression in March of 2001 are not objective medical findings of a permanent anatomical impairment, as the Administrative Law Judge concluded.
We note that the medical records contain some reference which seem to indicate that the claimant’s physicians early on may have detected the presence of muscle spasms during clinical examination. The Arkansas Courts have concluded that muscle spasm is an objective finding. However, the last reference to the presence of muscle spasms in this record was again recorded by Dr. Perry on May 10, 2001, and in light of the several medical reports in the record for periods after this date which either document the absence of muscle spasms or contain no reference to the presence or absence of muscle spasms, on this record, we are constrained to conclude that the observation of muscle spasms was also a transient medical finding which last occurred at approximately the same point that the claimant’s nerve root compression and disk bulge were confirmed as having resolved. Therefore, we are forced to conclude that the initial observations of muscle spasms in the medical reports in this case, while certainly objective findings, do not support the existence of permanent
physical impairment.
As the claimant’s brief on appeal notes, the record also contains other diagnostic test reports containing some degree of objective findings, including notations of levoscoliosis and degenerative changes of the facets on x-ray examination, a nonspecific lesion in the anterior inferior aspect of the L4 vertebral body, vertebral body end plate changes involving the inferior L4 vertebral body, disk dessication, mild bulging of the L4-5 intervertebral disk with osspous facet hypertrophy of the L4-5 and the L5-S1 disk as indicated by lumbar MRI on July 31, 2001. With regard to these objective findings, no physician has ever related any of these findings, which all appear on their face to be either degenerative, or consistent with a benign tumor, as being causally related to the claimant’s work-related lifting injury. Because we find that the preponderance of the evidence fails to establish any causal connection between these objective findings and any injury sustained in the claimant’s admittedly compensable lifting injury, we find that these objective findings also do not support a determination of the existence or extent of any permanent anatomical impairment which might be attributable to the claimant’s work-related injury.
Because we find that the claimant has failed to support the existence or extent of any permanent physical impairment attributable to her work-related injury with objective and measurable physical or mental findings, we find that the claimant has failed to establish that she has experienced any compensable permanent anatomical impairment.
In order to be entitled to any wage-loss disability benefits in excess of permanent physical impairment, a claimant must first prove that she sustained a compensable permanent physical impairment as a result of a work-related injury. Wal-Mart Stores, Inc. v. Connell, 340 Ark. 475, 10 S.W.3d 727 (2000). Because the claimant in the present case has failed to establish that she sustained a permanent physical impairment as a result of her work-related injury, we are likewise constrained to find that the claimant is not entitled to an award of any benefits for permanent wage-loss disability.
Therefore, after conducting a de novo review of the entire record, and for the reasons discussed herein, we find that the Administrative Law Judge’s award of additional benefits at issue must be, and hereby is, reversed.
IT IS SO ORDERED.
_____________________________ OLAN W. REEVES, Chairman
Commissioner Yates concurs.
Commissioner Turner dissents.