Foxx v. American Transp.
Annotate this Case
*ADVREP*CA4* EN BANC
HAROLD LEE FOXX
APPELLANT
V.
AMERICAN TRANSPORTATION
APPELLEE
CA 95-218
JUNE 19, 1996
APPEAL FROM THE ARKANSAS
WORKERS' COMPENSATION
COMMISSION, [E307313 & E317586]
SUBSTITUTED OPINION UPON GRANT
OF PETITION FOR REHEARING
John B. Robbins, Judge.
Appellant Harold Lee Foxx sustained a compensable back injury
while working for appellee American Transportation in April 1993.
American Transportation paid certain benefits, but controverted
Mr. Foxx's claim that he had suffered a 5% permanent impairment as
a result of his injury. Mr. Foxx filed a claim with the Workers'
Compensation Commission, and the Commission ruled that Mr. Foxx
failed to prove the alleged 5% impairment. Mr. Foxx now appeals,
arguing that the Commission's decision is not supported by
substantial evidence. In addition, Mr. Foxx contends that the
Commission erred as a matter of law when it relied upon wage-loss
disability factors in denying his permanent anatomical impairment
rating.
When reviewing decisions from the Workers' Compensation
Commission, we view the evidence and all reasonable inferences
deducible therefrom in the light most favorable to the Commission's
findings and affirm if supported by substantial evidence. Welch's
Laundry & Cleaners v. Clark, 38 Ark. App. 223, 832 S.W.2d 283
(1992). Substantial evidence is that which a reasonable person
might accept as adequate to support a conclusion. City of Fort
Smith v. Brooks, 40 Ark. App. 120, 842 S.W.2d 463 (1992). A
decision by the Workers' Compensation Commission should not be
reversed unless it is clear that fair-minded persons could not have
reached the same conclusions if presented with the same facts.
Silvicraft, Inc. v. Lambert, 10 Ark. App. 28, 661 S.W.2d 403
(1983).
The evidence in this case shows that Mr. Foxx sustained a knee
injury while working for American Transportation on March 15, 1993.
Mr. Foxx returned to work and, on April 23, 1993, injured his lower
back. When asked how this injury occurred, Mr. Foxx replied,
"[p]ossibly bending and stooping, favoring my left knee, the
doctors say I pulled the muscles in the left side of my back." He
subsequently received medical treatment from Drs. Gil Johnson, Earl
Peeples, and Robert McCarron.
Dr. Johnson treated Mr. Foxx four days after his back injury,
and indicated that straight leg tests and x-rays were negative.
Dr. Johnson diagnosed a lumbar strain, and Mr. Foxx was then
attended by Dr. Peeples. Dr. Peeples saw Mr. Foxx in May 1993
and found no definite abnormality. He ultimately determined that
Mr. Foxx's healing period ended on June 7, 1993, and rendered the
following opinion:
I do not anticipate the patient would have any permanent
impairment of function related to his injury. I do not
anticipate any further medical expenses related to his
problem.
Dr. McCarron treated Mr. Foxx next, and noted that Mr. Foxx
essentially had a normal examination. However, due to urinary
symptoms and scrotal pain, Dr. McCarron ordered an MRI which was
performed in late June or early July 1993. The MRI revealed a
herniated disc at L4-5, and on September 24, 1993, Dr. McCarron
estimated a 5% impairment to his body as a whole. It is on this
opinion that Mr. Foxx primarily relies.
In addition to the medical evidence, the Commission considered
evidence prepared by private investigator Kenneth Jones. Mr. Jones
investigated Mr. Foxx from July 17, 1993, until July 30, 1993.
During this time, Mr. Jones prepared a video tape and observed
Mr. Foxx operating a mowing service. According to Mr. Jones, he
saw Mr. Foxx lift heavy objects, bend down, and run without
exhibiting any symptoms of pain or disability. Mr. Foxx was also
seen moving a very heavy mower from one location to another. There
was further evidence that, during this time, Mr. Foxx was operating
a cleaning service which entailed cleaning offices.
In finding that Mr. Foxx failed to prove a 5% permanent
anatomical or functional impairment, the Commission weighed the
medical evidence along with other evidence of Mr. Foxx's physical
capabilities. Although Dr. McCarron assigned a 5% impairment
rating, Dr. Johnson failed to assign a rating and Dr. Peeples
opined that Mr. Foxx's healing period had ended and that he
suffered no permanent functional impairment. The resolution of
conflicting medical evidence is a question of fact to be determined
by the Commission. Brantley v. Tyson Foods, Inc., 48 Ark. App. 27,
888 S.W.2d 543 (1994). In addition to the conflicting medical
evidence, the Commission relied on the fact that Mr. Foxx was
capable of engaging in relatively heavy labor activities. However,
as Mr. Foxx points out, the issue presented to the Commission was
whether Mr. Foxx had suffered an anatomical impairment, not whether
he had suffered a wage-loss disability. We held in Second Injury
Fund v. Fraser-Owens, 17 Ark. App. 58, 702 S.W.2d 828 (1986), that
"`anatomical impairment' means the anatomical loss as reflected by
the common usage of medical impairment ratings." See Second Injury
Fund v. Yarbrough, 19 Ark. App. 354, 721 S.W.2d 686 (1986). The
bases for these medical impairment ratings are found generally in
Guides to the Evaluation of Permanent Impairment (3d ed. 1988)
published by the American Medical Association. In the introduction
to chapter one of this publication, the following definition is
found:
The accurate and proper use of medical information
to assess impairment depends on the recognition that,
whereas impairment is a medical matter, disability arises
out of the interaction between impairment and external
demands, especially those of an individual's occupation.
As used in the Guides, "impairment" means an alteration
of an individual's health status that is assessed by
medical means, "disability," which is assessed by
nonmedical means, is an alteration of an individual's
capacity to meet personal, social, or occupational
demands or statutory or regulatory requirements.
(emphasis in original)
Clearly, the Commission considered Mr. Foxx's capacity to
perform strenuous occupational demands in deciding whether he
suffered an anatomical impairment. Its opinion included the
following:
Despite all claimant's continued complaints of pain
and unknown to his healthcare providers, claimant was
working for respondent and ran a cleaning business and
lawn care business. Claimant did the cleaning and the
yard work himself. He had apparently began these
operations while he was off work for the carpal tunnel
syndrome. He continued to work after the knee and back
difficulties. In fact, claimant's tax return[s] indicate
that his cleaning service grossed over $30,000 in 1993.
The evidence shows that claimant was working on
lawns with a lawn mower that weighs between 200 and 300
pounds. A videotape illustrates that claimant was quite
mobile. He was able to move the lawn mower in and out of
a trailer without significant difficulties. There were
many other activities on the videotape which indicate
that claimant was able to run, jump and actively work.
The preponderance of the evidence does not establish
that claimant is entitled to any benefits, even the
contingent 5% disability benefits. The Administrative
Law Judge apparently relied primarily upon medical
reports. However, the videotape indicates that claimant
was able to participate in gainful employment at 100%
capacity.
Claimant was able to lift mowers and perform many
other activities. Therefore, claimant has failed to
prove by a preponderance of the credible evidence that he
has any impairment. Therefore, we find that respondent
should not be liable for a 5% disability rating. When
the medical reports, specifically Dr. McCarron's assess-
ment, is weighed against the preponderance of the
credible evidence, it is clear that claimant has not
sustained a 5% disability rating.
While these evidentiary findings would be highly relevant and
appropriate in determining wage-loss disability, wage-loss
disability was not an issue. However, the Commission held that,
because Mr. Foxx "was able to participate in gainful employment at
100%," he was not entitled to any benefits.
We agree with Mr. Foxx that the Commission has blurred the
distinction between anatomical impairment and wage-loss. The
landmark case of Glass v. Edens, 233 Ark. 786, 346 S.W.2d 685
(1961), involved a decision of the Commission which held that
evidence other than clinical findings could not be considered to
arrive at a rating for permanent partial disability. The supreme
court reversed and remanded because disability in excess of
anatomical impairment was sought. See also Ray v. Shelmutt Nursing
Home, 246 Ark. 575, 439 S.W.2d 41 (1969). Here, disability (wage-
loss) in excess of anatomical impairment has never been sought by
Mr. Foxx.
While we do not hold that non-medical proof is wholly
irrelevant to the issue of anatomical impairment, the Commission
may not arbitrarily disregard a physician's opinion (Wade v. Mr. C.
Cavenaugh's, 25 Ark. App. 237, 756 S.W.2d 923 (1988)), especially
when based on objective and measurable findings. Though the
opinions of the medical experts conflicted, Dr. McCarron had the
benefit of an item of objective medical proof that Dr. Johnson
and Dr. Peeples did not. Dr. McCarron reported that an MRI was
performed which revealed a herniated disc. The Commission may not
have believed Dr. McCarron, or it may have believed that the
herniated disc was not caused by the compensable injury, but, if
so, it should have said as much.
We remand this proceeding to the Commission for it to make
some finding regarding Dr. McCarron's report and the MRI which
reflected a herniated disc.
Reversed and remanded.
Jennings, C.J., Mayfield, and Neal, JJ., agree.
Pittman and Rogers, JJ., dissent.*ADVREP*CA4-A*EN BANC
CA 95-218
June 19, 1996
HAROLD LEE FOXX AN APPEAL FROM THE ARKANSAS
APPELLANT WORKERS' COMPENSATION
COMMISSION
VS.
AMERICAN TRANSPORTATION DISSENT
APPELLEE
John Mauzy Pittman, Judge.
Today this court takes a stroll down the primrose path, lured
by a disingenuous argument. By this decision, the majority holds
that the Workers' Compensation Commission cannot consider evidence
demonstrating the absence of functional incapacity in determining
whether or not a claimant has suffered any degree of permanent
disability. In other words, it is being held that the issue of
permanent functional or anatomical impairment is a question to be
determined purely by expert medical testimony. The majority so
holds based only on the dubious authority of two second injury fund
cases that touch upon the concept of impairment as it relates to
the fund's liability, as well as on an equally dubious reference to
an introduction contained in the American Medical Association's
Guides to the Evaluation of Permanent Impairment. I submit that
this decision is unprecedented and contrary to our established law
that it is the function of the Commission to weigh all of the
evidence, resolve conflicts, and determine the credibility of the
witnesses. Therefore, I dissent.
Permanent impairment, which is usually a medical condition, is
any permanent functional or anatomical loss remaining after the
healing period has been reached. Johnson v. General Dynamics, 46
Ark. App. 188, 878 S.W.2d 411 (1994). An injured employee is
entitled to the payment of compensation for the permanent function-
al or anatomical loss of use of the body as a whole whether his
earning capacity is diminished or not. Id.
In this case, only one of appellee's three physicians was of
the opinion that appellant had suffered a permanent impairment
stemming from his injury. Even this physician assigned only a
minimal rating of five percent. The Commission discounted that
opinion based on evidence, unknown to that physician, demonstrating
appellant's ability to perform strenuous manual labor without any
apparent difficulty. In the videotape that the Commission had
before it, appellant was observed operating a yard service and
doing such things as lifting heavy machinery, running, and jumping.
Appellant was also said to be engaged in cleaning offices. In
light of appellant's demonstrated physical capabilities, the
Commission gave no weight to the doctor's opinion and concluded
that appellant had suffered no functional or anatomical impairment
so as to justify an award of permanent disability.
We should be guided in our decision by the standard of review.
Where the Commission denies a claim because of the claimant's
failure to meet his burden of proof, the substantial evidence
standard of review requires that we affirm the Commission's
decision if its opinion displays a substantial basis for the denial
of relief. Johnson v. American Pulpwood Co., 38 Ark. App. 6, 826 S.W.2d 827 (1992). In conducting our review, we have recognized
that it is the function of the Commission to determine the
credibility of the witnesses and the weight to be given their
testimony. Crow v. Weyerhaeuser Co., 46 Ark. App. 295, 880 S.W.2d 320 (1994). We have said that the Commission has the duty of
weighing medical evidence as it does any other evidence, and that
resolving any conflict is a question of fact for the Commission.
Id. We have further recognized that, although the Commission may
not arbitrarily disregard the testimony of any witness, it is not
bound by medical opinion. Reeder v. Rheem Mfg. Co., 38 Ark. App.
248, 832 S.W.2d 505 (1992). The Commission is also entitled to
examine the basis for a doctor's opinion, like that of any other
expert, in deciding the weight to which that opinion is entitled.
Id. The Commission is charged with the duty of translating the
evidence into findings of fact. Johnson v. General Dynamics, 46
Ark. App. 188, 878 S.W.2d 411 (1994).
Fairly recently, we have also observed that the Commission is
not limited, and never has been limited, to the consideration of
medical evidence alone in arriving at its decision as to the amount
or extent of permanent partial disability suffered by an injured
employee. Id. In Johnson v. General Dynamics, the Commission had
both denied wage loss benefits and found that the claimant had not
sustained a permanent anatomical impairment because the evidence
failed to include a numerical impairment rating. We upheld the
Commission's denial of wage loss benefits, but we reversed the
Commission's decision that appellant was not entitled to benefits
for permanent anatomical impairment. We held that the absence of
a numerical impairment rating was no impediment to a finding of
permanent functional impairment. In making that decision, we
considered not only medical evidence but also the testimony of the
claimant as to her physical limitations resulting from the injury.
And also recently, we considered evidence of the appellant's
ability to work as a truck driver ten to twelve hours a day, five
to six days a week, in sustaining the Commission's denial of
permanent partial disability. Crow v. Weyerhaeuser Co., supra.
More to the point, in Bibler Brothers, Inc. v. Ingram, 266 Ark.
969, 587 S.W.2d 841 (Ark. App. 1979), we expressly approved of the
Commission's consideration of lay testimony in addition to the
medical evidence in assessing permanent partial impairment.
Nevertheless, the majority holds today that the evidence relied
upon by the Commission is not pertinent evidence to consider when
determining the existence or degree of permanent functional
disability, and that such evidence is only relevant to a determina-
tion of wage loss. I can find no support for this proposition.
"Disability" means incapacity because of injury to earn, in
the same or any other employment, the wages which the employee was
receiving at the time of the injury. Ark. Code Ann. 11-9-102(5)
(1987). Arkansas Code Annotated 11-9-522(a) (1987) provides:
A permanent partial disability not sched-
uled in 11-9-521 shall be apportioned to the
body as a whole, which shall have a value of
four hundred fifty (450) weeks, and there
shall be paid compensation to the injured
employee for the proportionate loss of use of
the body as a whole resulting from the injury.
In Glass v. Edens, 233 Ark. 786, 346 S.W.2d 685 (1961), the supreme
court held that the legislature's use of the term "loss of the use
of the body as a whole" does not mean merely functional disability,
but also includes loss of use of the body to earn substantial
wages, i.e., wage loss. In so holding, the court relied on a
passage from Professor Larson's treatise:
The key to the understanding of this
problem is the recognition, at the outset,
that the disability concept is a blend of two
ingredients, whose recurrence in different
proportions gives rise to most controversial
disability questions: the first ingredient of
disability in the medical or physical sense,
as evidenced by obvious loss of members or by
medical testimony that the claimant simply
cannot make the necessary muscular movements
or exertions; the second ingredient is de
facto inability to earn wages, as evidenced by
proof that claimant has not in fact earned
anything.
233 Ark. at 787, 346 S.W.2d at 686-87 (quoting A. Larson, The Law
of Workmen's Compensation, 57.10). While noting the distinction
between physical and wage-loss disability, I can find nothing in
Larson's or our case law since the decision in Glass v. Edens that
draws a bright line between the kind of proof that can be consid-
ered to support either concept of disability. In no decision,
since either Glass v. Edens or even the inception of our law on
workers' compensation, has it ever been held that evidence
demonstrating the lack of functional limitation is not relevant to
the issue of functional impairment or disability. Perhaps that is
so because common sense dictates a contrary conclusion. While in
some instances medical testimony might be considered indispensable,
that does not lead to a strict conclusion that non-medical
testimony is not relevant to either supplement the medical
testimony or to contradict it. Of course, the natural corollary to
the decision in this case is that even the claimant's testimony as
to his or her physical abilities is not competent evidence for the
Commission to consider in assessing functional or anatomical
impairment.
It has been held that in examining the record for substantial
evidence to support an award or denial of compensation for
permanent partial disability, the examination is directed to all
the competent evidence and is not confined to the medical evidence
alone. Vaccaro-Grobmeyer Co. v. McGarity, 249 Ark. 1132, 463 S.W.2d 372 (1971). And Larson, as is embodied in our case law,
see, e.g., Reeder v. Rheem Mfg. Co., supra, recognizes that if a
Commission wishes to enter an award contradicting the medical
testimony, it must take care to show in the record the valid
competing evidence or considerations that impelled it to disregard
the medical evidence. 2B A. Larson, The Law of Workmen's Compensa-
tion, 79.52(d) (1995). That is precisely what the Commission did
here. It evaluated the medical testimony assigning a five percent
impairment rating against evidence demonstrating that the appellant
was not suffering from any degree of functional or anatomical
impairment, and it concluded that appellant was not entitled to
permanent partial disability benefits. To make that assessment is
undeniably within the purview of the Commission, and I cannot say
that its disregard of the medical opinion was arbitrary in any way.
In sum, the Commission's decision displays a substantial basis for
the denial of permanent disability benefits.
Perhaps the majority's confusion stems from the fact that the
videotape happens to show appellant performing work-related
activities. If so, the majority has missed the point. The point
made by the tape is not that appellant can perform his job, but
rather that the activities portrayed, regardless of their nature,
tend to demonstrate that he is not, in fact, physically impaired in
any degree.
To be of the opinion that the Commission is only permitted to
consider expert medical opinion and testimony in determining the
existence or degree of permanent functional or anatomical impair-
ment is without precedent. To hold that evidence showing the
absence of physical limitation is irrelevant is nothing short of
preposterous. With all due respect, such evidence is highly
probative in determining the existence or degree of permanent
disability. I cannot agree then with this court's erection of a
line of demarcation in the kind of proof that can be offered. Fur-
thermore, I seriously question the majority's citation to the AMA
Guidelines as authority. Our legislature never adopted those
standards and to use what amounts to a preface in that literature
to add substance to our body of law is not only misguided but also
strikes me as judicial legislation.
In closing, I also take issue with the majority's direction to
the Commission on remand. Its discussion of Dr. McCarron's
testimony gives the firm impression that the court considers his
opinion more worthy of belief. It should go unsaid that it will be
for the Commission to decide issues of credibility and weight to be
given the various witnesses' testimony.
Rogers, J., joins in this dissent.
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