Barnard v. B & M Constr.

Bruce BARNARD v. B & M CONSTRUCTION

CA 95-247                                          ___ S.W.2d ___

                  Court of Appeals of Arkansas
                           Division II
               Opinion delivered February 14, 1996


1.   Workers' compensation -- standard of review. -- Where, as in
     the present case, the Workers' Compensation Commission denies
     a claim because the claimant has failed to show entitlement by
     a preponderance of the evidence, the appellate court affirms
     if the Commission's opinion displays a substantial basis for
     the denial of relief; substantial evidence means such relevant
     evidence as a reasonable mind might accept as adequate to
     support a conclusion; on appeal, the appellate court is
     required to view the evidence in the light most favorable to
     the findings and to give the testimony its strongest probative
     force in favor of the Commission's action.

2.   Workers' compensation -- scheduled permanent injuries -- loss
     of vision -- use of corrective lenses may be taken into
     consideration in evaluating extent of loss. -- Arkansas Code
     Annotated  11-9-521(c) (1987) provides that in all cases of
     permanent loss of vision, the use of corrective lenses may be
     taken into consideration in evaluating the extent of loss of
     vision.

3.   Workers' compensation -- weighing medical evidence --
     Commission's duty. -- The Workers' Compensation Commission has
     the duty of weighing medical evidence as it does any other
     evidence, and the resolution of any conflicts in the medical
     evidence is a question of fact for the Commission; the
     Commission is not required to believe the testimony of the
     claimant or any other witness but may accept and translate
     into findings of fact only those portions of the testimony it
     deems worthy of belief. 

4.   Workers' compensation -- Commission's findings supported by
     substantial evidence. -- Where the Commission found that the
     claimant had not sustained his burden of proof by a
     preponderance of the credible evidence of record and found
     that the claimant had not sustained any permanent disability
     as a result of his admittedly compensable injury, the
     appellate court concluded that the findings of the Commission
     were supported by substantial evidence.  


     Appeal from Arkansas Workers' Compensation Commission;
affirmed.
     Lane, Muse, Arman & Pullen, by: R. Keith Arman, for appellant.
     Anderson & Kilpatrick, by: Michael P. Vanderford, for
appellee.

     John F. Stroud, Jr, Judge.


*ADVREP*CA2*              DIVISION II









BRUCE BARNARD
                     APPELLANT

V.


B & M CONSTRUCTION
                      APPELLEE



NO. CA 95-00247

                                                February 14, 1996


APPEAL FROM THE ARKANSAS
WORKERS' COMPENSATION
COMMISSION [E202460]




AFFIRMED






                   John F. Stroud, Jr., Judge.




     Bruce Barnard was employed as a construction worker by B & M
Construction Company on February 10, 1992, when he fell from a
steel beam onto a concrete floor, striking his head.  He suffered
a closed head injury and had headaches and double vision.  B & M
Construction accepted the claim as compensable and paid temporary
total disability and medical benefits.  At a hearing before the
administrative law judge, Mr. Barnard contended that he was
entitled to a physical impairment rating due to loss of vision. 
The law judge denied and dismissed the claim.   After conducting a
de novo review, the Workers' Compensation Commission affirmed and
adopted the decision of the administrative law judge.  We affirm
the denial of the claim.   
     The claimant raises one point on appeal, stating that he has
shown by substantial evidence that he has sustained permanent
disability as a result of his admittedly compensable injury.  This
is not the standard by which we review cases when the Commission
has denied a claim.  Where, as here, the Commission denies a claim
because the claimant has failed to show entitlement by a
preponderance of the evidence, the substantial evidence standard of
review requires that we affirm if the Commission's opinion displays
a substantial basis for the denial of relief.  Brantley v. Tyson
Foods, Inc., 48 Ark. App. 27, 887 S.W.2d 543 (1994).  Substantial
evidence means such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.  Wright v. ABC Air,
Inc., 44 Ark. App. 5, 864 S.W.2d 871 (1993).  On appeal, we are
required to view the evidence in the light most favorable to the
findings and give the testimony its strongest probative force in
favor of the Commission's action.  Tyson Foods, Inc. v. Disheroon,
26 Ark. App. 145, 761 S.W.2d 617 (1988). 
     The evidence, which includes testimony by the claimant as well
as medical testimony and records, shows that the claimant reported
headaches and vision problems after the accident.  The claimant
stated that he continued to have double vision when viewing objects
up to four and one-half feet away.  Dr. Michael Brodsky followed
the claimant at Arkansas Children's Hospital Eye Clinic. 
Dr. Brodsky diagnosed the claimant's vision problem as convergence
insufficiency and prescribed reading glasses with prisms
incorporated into them in order to see objects close-up and use his
eyes together to avoid double vision.  
     In support of his claim for permanent disability, the claimant
refers to his need to wear two pairs of glasses to see properly. 
He points to the testimony of ophthalmologist Dr. Thomas R. Wallace
that a change of glasses would be required for switching from close
to distant work, such as when leaving close-up work at a bench to
walk across a room.  The claimant concludes that he can no longer
do construction work because he cannot walk while wearing the prism
glasses which he must wear for working with a screwdriver or hammer
and nails.  The claimant states, however, that he has a riding
lawnmower, a push mower, and a leaf mower; that he is able to do
lawn work; and that he is able to drive a car.  
     The medical evidence includes conflicting reports concerning
the claimant's fields of vision.  Dr. Wallace, in determining the
claimant's impairment rating, referred to testing the visual
fields.  His report of March 15, 1994, states:
     I have calculated Mr. Barnard's disability based on my
     interpretation of Guide to the Evaluation of Permanent
     Impairment, Third Edition Revised....

     Right eye appears to be his worse [sic].  He has 20/20
     vision in that eye for no central vision loss.  His
     visual field loss is approximately 47%.  This is an
     inferior hemianopia and according to the above mentioned
     book this entitles him to an addition 10% of loss, so his
     visual field loss in the right eye is 47% plus 10% or
     57%.  Combining this with the 57% loss of the right eye
     using the combined value chart shows a 100% loss in the
     right eye.  

     The left eye has no loss of central vision.  He has lost
     10% visual field with an extra 5% because he has lost an
     inferior quadrant yielding 15% loss of visual field. 
     Combining these on the combined value chart yields 16%. 

     When you combine the impairment in the worse eye (right)
     100% and the better eye (left) 16% and ... an impairment
     of the visual system of 38%... this shows an impairment
     of the whole person of 36%.  

     The claimant's visual fields were also tested by Dr. George
Schroeder, an ophthalmologist, and Dr. John Stuckey, an
optometrist.  In a letter of June 13, 1994, optometrist Dr. Thomas
H. Gulley compares their test results to those which Dr. Wallace
obtained.  Dr. Gulley states in his letter:
     These fields were done on the same type of instrument and
     the same threshold levels as at Dr. Tom Wallace's office.
     As you can see, the results are somewhat different and on
     both tests, it states there is low patient reliability. 
     
     In a letter dated July 21, 1994, Dr. Gulley evaluates the
claimant's corrected vision and refers to the subjective nature of
the testing:
     This is in response to [respondents'] questions.  Bruce
     Barnard has corrected vision of 20/20 in both eyes.  In
     other words, while wearing his glasses his vision is
     normal.  

     The disability rating given by Dr. Tom Wallace is based
     on the threshold test which is used to determine any
     deficit in Mr. Barnard's field of vision.  Dr. Wallace
     did the test on two occasions and the results were
     different in each instance.  I sent Mr. Barnard to Drs.
     Stuckey and Schroeder on June 9, 1994, to have that test
     performed.  The results of the test performed by Dr.
     Stuckey and Schroeder are different than those done by
     Dr. Wallace.  And it states on the test form that there
     is low patient reliability on all the tests.  The
     validity of these tests is based on the answers given by
     Mr. Barnard.  Because the three tests done are all
     different, none can be said to be a reliable test of Mr.
     Barnard's field of vision.  In my opinion, from the
     results of this test, it would be difficult to rate Mr.
     Barnard with any permanent impairment as a result of the
     on-the-job injury.  

     The impairment rating given by Dr. Wallace does not address
the claimant's vision as corrected with glasses.  Arkansas Code
Annotated  11-9-521(1987) addresses compensation for scheduled
permanent injuries.  Subsection (c) states, "In all cases of
permanent loss of vision, the use of corrective lenses may be taken
into consideration in evaluating the extent of loss of vision." 
Dr. Gulley stated that the claimant's corrected vision was normal. 
     The Commission found that the claimant had not sustained his
burden of proof by a preponderance of the credible evidence of
record, and found that the claimant had not sustained any permanent
disability as a result of his admittedly compensable injury.  The
Commission has the duty of weighing medical evidence as it does any
other evidence, and the resolution of any conflicts in the medical
evidence is a question of fact for the Commission.  Bartlett v.
Mead Containerboard, 47 Ark. App. 181, 888 S.W.2d 314 (1994).  The
Commission is not required to believe the testimony of the claimant
or any other witness, but may accept and translate into findings of
fact only those portions of the testimony it deems worthy of
belief.  Jackson v. Circle T. Express, 49 Ark. App. 94, 896 S.W.2d 602 (1995).  We conclude that the findings of the Commission are
supported by substantial evidence.  
     Affirmed. 
     COOPER and GRIFFEN, JJ., agree.