Greene County Road Department v. Dewey L. Potter

ARKANSAS COURT OF APPEALS

ANDREE LAYTON ROAF, JUDGE

DIVISION IV

NOT DESIGNATED FOR PUBLICATION

GREENE COUNTY ROAD DEPARTMENT

APPELLANT

v.

DEWEY L. POTTER

APPELLEE

CA 00-558

DECEMBER 20, 2000

APPEAL FROM THE ARKANSAS WORKERS' COMPENSATION COMMISSION

[NO. E812276]

AFFIRMED

Greene County Road Department (Greene County) appeals the Workers' Compensation Commission's findings that appellee Dewey Potter sustained a compensable injury, was entitled to temporary total disability benefits (TTD) from September 20, 1998 until January 13, 1999, and was entitled to a ten-percent permanent impairment rating. On appeal, Greene County argues that substantial evidence does not support the Commission's findings that (1) Potter sustained a compensable back injury arising out of and in his course of employment; (2) Potter remained within his healing period and was totally unable to earn wages from September 20, 1998, until January 13, 1999; and (3) Potter sustained a validly-assessed ten-percent permanent physical impairment to the body as a whole. We affirm.

On February 25, 1998, Dewey Potter alleged that he injured himself while stepping off a road grader he was operating while working for Greene County. Potter testified that his foot slippedwhen he was climbing on the grader, he fell off and jerked himself sideways. He stated that he realized he had hurt himself, so he sat for a while until he could get up, and then attempted to continue operating the grader. However, he was hurting badly and called the secretary, Betty Massey, and told her he was hurt and needed to go to the hospital. Massey testified that she received the call from Potter advising that he was injured, so she contacted Bill Knowles, the foreman, who took Potter to the hospital.

Potter remained off work for a few days. After returning to work, he continued to experience pain. He testified that he could no longer change the mower blades, and his legs hurt him all the time. On April 26, 1998, he reported to the emergency room at Arkansas Methodist Hospital. An MRI performed the next day revealed disk bulges. Potter testified that on August 23, 1998, while on a trip to Jonesboro with his wife, the pain in his back was so bad that his wife took him to St. Bernard's Hospital Emergency Room. The hospital referred him to Dr. Greg Ricca. On October 20, 1998, Dr. Ricca performed a diskectomy and fusion surgery. Dr. Ricca released Potter to light duty on January 13, 1999, but Greene County did not have light duty available so Potter did not return to work, nor did he look for other employment during this period. Potter returned to work after being released to full duty by Dr. Ricca on April 9, 1999. Dr. Ricca gave Potter a twenty-percent impairment rating to the body as a whole.

During the hearing before the Administrative Law Judge (ALJ), Potter testified that he had arthritis in his back before the accident and had been to the doctor for minor back problems, but the pain he had experienced was no comparison to the pain he felt after the February 25, 1998, incident. He also stated that, before and after the February fall, he worked on a farm in his off hours and on weekends, but that he drove a tractor with an air-cushion seat that did not jar him nearly as much as the road grader.

Dr. Ricca testified that his objective findings of injury were marked lumbar paraspinous muscle spasms, a positive bilateral straight-leg raising, and the April 27, 1998, MRI that revealed a broad-based disk rupture between L5-S1. He stated that Potter had marked degenerative changes at the L5-S1 and that some of the changes pre-existed the February incident and some were caused by the incident. Initially, Dr. Ricca testified that he believed the disk ruptured the day of the incident, basing his opinion on the fact Potter had a broad-based rupture and was asymptomatic prior to the accident and symptomatic after the incident. When cross-examined about Potter's prior back problems, Dr. Ricca stated that Potter told him about his prior back pain but did not tell him about any preexisting radiation or numbness into the legs, which prior medical reports established. He then conceded that this history would be important for him to know. After reviewing all prior medical records, Dr. Ricca could not state with certainty that the disk rupture was not present prior to the accident but said that he believed the February fall was more than fifty percent of the cause of Potter's impairment or need for treatment. He stated that he thought Potter was an honest person, and he did not know if he should blame Potter or himself for his not obtaining a better history.

The ALJ found that Potter had sustained a compensable injury on February 25, 1998, and was therefore entitled to medical benefits. She further found Potter was entitled to temporary total disability benefits from September 28, 1998 through January 13, 1999, and that he had sustained a ten-percent impairment rating to the body as a whole. The Commission affirmed and adopted the findings of the ALJ. This appeal followed.

When reviewing a decision of the Workers' Compensation Commission, this court views the evidence and all reasonable inferences deducible therefrom in the light most favorable to the findings of the Commission and affirms if the decision is supported by substantial evidence. Hooks v. Gaylord Container Corp., 67 Ark. App. 159, 992 S.W.2d 844 (1999). Substantial evidence issuch relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Id.

Green County first argues that is there is no substantial evidence to support the Commission's finding that Potter sustained a compensable injury. To be compensable, an injury must be established by medical evidence supported by objective findings, which are defined as findings that cannot come under the voluntary control of the patient. Continental Express, Inc. v. Freeman, 66 Ark. App. 102, 989 S.W.2d 538 (1999). Arkansas Code Annotated section 11-9- 102(5) (Supp. 1999) further provides in pertinent part:

(A) "Compensable injury" means:

(i) An accidental injury causing internal or external physical harm to the body ... arising out of and in the course of employment and which requires medical services or results in disability or death. An injury is "accidental" only if it is caused by a specific incident and is identifiable by time and place of occurrence.

With regard to this argument, Greene County sets forth five reasons why Potter's current condition cannot be causally related to the February 25, 1998, incident.

First, it argues that the injury did not arise out of and in the course of employment because Potter had prior objective findings of significant pre-existing, degenerative back conditions. It asserts that this is at least as likely a cause of Potter's current condition as the February 25, 1998, fall. It is the duty of the Workers' Compensation Commission to translate the evidence on all issues before it into findings of fact. Jeter v. B.R. McGinty Mechanical, 62 Ark. App. 53, 968 S.W.2d 645 (1998). The specialization and experience of the Commission make it better equipped than the appellate court to analyze and translate evidence into findings of fact. Id. It is the responsibility of the Commission to draw inferences when the testimony is open to more than a single interpretation, whether controverted or uncontroverted; and when it does so, its findings have the force and effect of a jury verdict. Oak Grove Lumber Co. v. Highfill, 62 Ark. App. 42, 968 S.W.2d 637 (1998). Evidence presented showed that various doctors saw Potter due to back problems before his injury. Symptoms contained in the reports, beginning in 1995, included "low-back pain radiating down to his right leg which is numb," "moderate bony degenerative change of the lower lumbar region," and that his right leg gave way after walking for a while. Potter admitted that he had minor back problems before the accident that he had been told was arthritis, but stated that there was no comparison in the pain he had after February 25, 1998. It is the function of the Workers' Compensation Commission to determine the credibility and weight due a witness and his or her testimony. Wood v. West Tree Service, 70 Ark. App. ___, ___ S.W.3d ___ (2000). The ALJ found Potter to be a credible witness and noted that his credibility and honesty were acknowledged by Betty Massey, Bill Knowles, Glen Maples, and Dr. Ricca. Thus, based on the evidence presented and the specialization and experience of the Commission in making findings of fact, substantial evidence exists to support a finding of a that Potter's prior degenerative back problems were not the cause of his injury.

Greene County next asserts that Potter's farm work starting in early April of 1998 is at least as likely a cause of his current condition as the February fall. This argument is without merit. Potter testified that he worked eight to ten hours on the week-end and would sometimes help in the evenings driving a tractor at Glenn Maples farm. He testified that the tractor had air-ride seats and there was no hard jarring, unlike driving the road grader. Glenn Maples testified that the job did not involve much lifting and twisting in hooking the equipment up to the tractor. Maples stated that Potter told him that he had hurt his back while working for Greene County and never said anything about hurting his back while working for him. Dr. Ricca, when asked by Greene County if he thought, based on the history provided, that the work on the farm was just as likely to cause the spasms as the February incident, stated "no." Again, based on the evidence presented and Potter's,Maple's and Dr. Ricca's testimony, and the superior position of the Commission to determine the credibility of witnesses, substantial evidence exists to support a finding of a compensable injury.

Green County next argues that Potter had identical findings and symptoms which preexisted the date of the accident and that the absence of new findings further indicates that no substantial evidence supports the Commission's finding that Potter sustained a compensable injury. Again, this argument is without merit. Dr. Ricca testified that Potter had objective findings of injury and that his accident "clearly exacerbated the pre-existing conditions to the point where it ended up requiring surgery." Potter testified that the minor pain he felt before the accident did not compare with the pain he felt afterwards. This constitutes substantial evidence to support the finding of a compensable injury.

Greene County next asserts that Dr. Ricca's opinions regarding the causation of Potter's condition were offered in reliance on an inaccurate and incomplete history and cannot be made without resort to speculation. It asserts that speculation and conjecture are not a substitute for credible evidence and cannot serve as the basis for establishing the compensability of Potter's claim, citing Dena Constr. Co., et al. v. Herndon, 264 Ark. 791, 575 S.W.2d 155 (1980). In this regard, Dr. Ricca's testimony could be found by the Commission to be credible and substantial. Again, after being apprised of Potter's prior medical records and symptoms, Dr. Ricca stated that the February 1998 incident "clearly exacerbated the pre-existing conditions to the point where it ended up requiring surgery." Further, contrary to Greene County's assertion, Dr. Ricca testified that he found Potter to be a truthful person, though he did concede that Potter was not a good historian. However, Dr. Ricca stated he did not know if that was his or Potter's fault. We do not agree that Dr. Ricca's revision of his opinion regarding when the disk rupture occurred after being presented with Potter's full medical history rendered his opinion speculative in regard to causation.

Next, Greene County asserts that substantial evidence does not support a finding that Potter sustained a compensable aggravation of his preexisting condition. An aggravation is a new injury resulting from an independent incident. Maverick Transportation v. Buzzard, 69 Ark. App. 128, ___ S.W.3d ___(2000). First, the Commission found that Potter sustained a compensable injury; its finding was not based upon an aggravation of a preexisting condition. However, although Dr. Ricca did acknowledge that he could not state the disk rupture was caused by the fall, he did say within a reasonable degree of medical certainty that the fall aggravated the conditions to the point Potter needed surgery. Based on the testimony of Dr. Ricca and Potter, there is substantial evidence to support a finding of a compensable injury, whether based on an aggravation of a prior condition or a new injury.

Greene County's second point on appeal is that there is no substantial evidence to support the Commission's finding that Potter was temporarily totally disabled from September 28, 1998, to January 13, 1999. Temporary total disability is that period within the healing period in which a claimant suffers a total incapacity to earn wages. Arkansas State Hwy. and Transp. Dep't. v. Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981); Georgia-Pacific Corp. v. Carter, 62 Ark. App. 162, 969 S.W.2d 677 (1998). The healing period is that period for healing of an injury which continues until the claimant is as far restored as the permanent character of the injury will permit. Id. If the underlying condition causing the disability has become more stable and if nothing further in the way of treatment will improve that condition, the healing period has ended. Nix v. Wilson World Hotel, 46 Ark. App. 303, 879 S.W.2d 457 (1994). Whether an employee's healing period has ended is a factual determination to be made by the Commission. Ketcher Roofing Co. v. Johnson, 50 Ark. App. 63, 901 S.W.2d 25 (1995). It stands to reason that the duration of an employees' total incapacity to earn wages within this healing period is likewise a purely factual determination.

Here, the Commission found that Potter was within his healing period from October 20, 1998 until January 13, 1999, and was totally incapacitated to earn wages. Dr. Ricca released Potter to light duty on January 13, 1999. Greene County had no light duty available, and Potter made no attempt to find other work until his full release in April of 1999. The Commission, therefore, found Potter entitled to TTD, likewise, only until he was released for light duty, and no longer. There is substantial evidence, in the form of Dr. Ricca's testimony and records, to support this finding.

Lastly, Greene County argues that there is no substantial evidence to support the Commission's finding that Potter was entitled to permanent disability benefits (PPD). It asserts that Dr. Ricca's rating of twenty-percent to the body as a whole was based on subjective criteria, loss of motion, and cannot provide a basis for an award of PPD. Arkansas Code Annotated § 11-9-102(16)(A)(ii) (Supp. 1997) states:

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.

Dr. Ricca assigned a twenty-percent rating utilizing the AMA Guidelines to Evaluation of Permanent Impairment. Dr. Ricca testified that his objective findings of injury were marked lumbar paraspinous muscle spasms, a straight-leg raising was positive bilaterally and Potter's April 27, 1998, MRI showed a broad-based disk rupture at the bottom level, between L5-S1. The ALJ, citing the above statute, noted that Dr. Ricca based his rating in part on loss of motion and stated, "using the same table that Dr. Ricca utilized, however, discounting the range-of- motion factor, the appropriate permanent impairment rating is ten percent." Clearly, the ALJ discounted the impairment rating assigned by Dr. Ricca based on loss of motion and used the AMA Guidelines to Evaluation of Permanent Impairment to make her determination of Potter's impairment rating. Consequently, the ten-percent rating was not based on subjective criteria, and the finding is supported by substantial evidence.

Greene County also argues that reasonable minds could not agree that the February fall was the major cause of any alleged permanent impairment. Ark. Code Ann. section 11-9-102(F)(ii)(a) (Supp. 1997) provides that permanent benefits shall be awarded only upon a determination that the compensable injury was the major cause of the disability or impairment. The Act defines "major cause" as more than fifty percent of the cause. Ark. Code Ann. § 11-9-102 (14) (A) (Supp. 1997). Dr. Ricca testified that the February fall was more than fifty percent of the cause of Potter's impairment or need for treatment. This testimony constitutes substantial evidence to support the award of benefits.

Affirmed.

Robbins , C.J., and Stroud, J., agree.