Cox v. CFSI Temporary Employment

tDave Allen COX v. CFSI TEMPORARY EMPLOYMENT

CA 96-959                                          ___ S.W.2d ___

                  Court of Appeals of Arkansas
                           Division II
                 Opinion delivered May 28, 1997


1.   Workers' compensation -- range-of-motion test not considered
     objective finding in determining compensability -- substantial
     evidence supported Commission's finding that appellant's lack
     of range of motion was not objective finding. -- Where it was
     apparent that appellant's inability to bend more than ninety
     degrees was not an "objective finding" within the meaning of
     Ark. Code Ann.  11-9-102(16)(A)(i) because appellant's
     limitation could clearly have come under his voluntary
     responses, his manipulation, and control; the Commission, in
     determining the compensability of appellant's claim, proceeded
     under Ark. Code Ann.  11-9-102(16)(A)(i) which was a correct
     application of the law; there was substantial evidence to
     support the Commission's finding that appellant's lack of
     range of motion was not an "objective finding."

2.   Workers' compensation -- substantial evidence defined -- when
     Commission's decision will be reversed. -- Substantial
     evidence is that evidence which a reasonable person might
     accept as adequate to support a conclusion; a decision by the
     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.

3.   Workers' compensation -- how compensable injury established --
     Commission's denial of benefits supported by substantial
     evidence. -- A compensable injury must be established by
     medical evidence supported by "objective findings" as defined
     in Ark. Code Ann.  11-9-102(16); where the record revealed
     that the only positive finding associated with appellant's
     injury was his inability to bend over ninety degrees, this was
     not an "objective finding"; the record did not indicate any
     other objective tests which rendered a positive result
     indicating that appellant had sustained a compensable injury;
     the appellate court could not say that there was no
     substantial basis to support the Commission's denial of
     benefits.


     Appeal from the Arkansas Workers' Compensation Commission;
affirmed.
     Daily, West, Core, Coffman & Canfield P.L.L.C, by:  Eldon F.
Coffman, for appellant. 
     Shaw, Ledbetter, Hornberger, Cogbill & Arnold, by:  James A.
Arnold, II, for appellees.

     Judith Rogers, Judge.
     This is an appeal from the Workers' Compensation Commission's
order affirming and adopting the administrative law judge's
decision.  The ALJ found that appellant failed to establish that he
had sustained a compensable injury supported by objective findings
as required by Ark. Code Ann.  11-9-102(5)(D) (Repl. 1996).  On
appeal, appellant argues that the Commission erred in not
considering deficits in range of motion and mobility as "objective
findings."  Also, appellant contends, in the alternative, that
there is no substantial evidence to support the Commission's
decision.  We affirm the Commission's decision.
     The record reveals that appellant worked for appellee for one
month lifting table tops which weighed between twenty-five and
forty pounds.  On January 4, 1995, between 7:00 a.m. and 9:00 a.m.,
appellant's back began to hurt.  He saw Dr. Michael W. Callaway who
diagnosed lumbar strain.  Appellant visited doctors from January
1995, through August 1995.  Appellant's overall diagnosis was
lumbar strain with no positive, objective tests results.  The only
sign of appellant's back strain was the assessment that appellant
was unable to bend over more than ninety degrees.  There were signs
of disc bulges, but the disc problems were said to be unrelated to
appellant's work activity or his back strain.
     On appeal, appellant argues that the Commission erred in not
considering his inability to bend more than ninety degrees as an
"objective finding."  Appellant admits that a range of motion test
is not to be considered an "objective finding" when determining
impairment ratings as set forth in Ark. Code Ann.  11-9-
102(16)(A)(ii) (Repl. 1996).  However, appellant reasons that a
range of motion test should be considered an "objective finding"
when determining compensability.  We disagree.
     Arkansas Code Annotated  11-9-102(5)(A)(ii)(b) (Repl. 1996)
provides:
          (5)(A)  `Compensable injury' means:
               (ii)  An injury causing internal or external physi-
               cal harm to the body and arising out of and in the
               course of employment if it is not caused by a
               specific incident or is not identifiable by time
               and place of occurrence, if the injury is:

               (b)  A back injury which is not
               caused by a specific incident or
               which is not identifiable by time
               and place of occurrence.

Arkansas Code Annotated  11-9-102(5)(D) provides that a compensa-
ble injury "must be established by medical evidence, supported by
`objective findings' as defined in  11-9-102(16)."  "Objective
findings" are those findings which cannot come under the voluntary
control of the patient.  Ark. Code Ann.  11-9-102(16)(A)(i) (Repl.
1996).
     Construing the Act strictly, it is apparent that appellant's
inability to bend more than ninety degrees is not an "objective
finding" within the meaning of Ark. Code Ann.  11-9-102(16)(A)(i). 
Appellant's limitation could clearly have come under his voluntary
responses, his manipulation, and control.  See Duke v. Regis
Hairstylists, 55 Ark. App. 327, 935 S.W.2d 600 (1996).  The
Commission, in determining the compensability of appellant's claim,
proceeded under Ark. Code Ann.  11-9-102(16)(A)(i) which was a
correct application of the law.  Consequently, we cannot say that
there is no substantial evidence to support the Commission's
finding that appellant's lack of range of motion was not an
"objective finding."
     Appellant also argues that even if appellant's inability to
bend ninety degrees is found not to be objective, there is no
substantial evidence to support the Commission's denial of
benefits.  We disagree.
     A compensable injury must be established by "medical evidence
supported by `objective findings' as defined in  11-9-102(16)." 
Ark. Code Ann.  11-9-102(5)(D) (Repl. 1996).  The record reveals
that the only positive finding associated with appellant's injury
was his inability to bend over ninety degrees.  As we discussed
above, this is not an "objective finding."  The record does not
indicate any other objective tests which rendered a positive result
indicating that appellant had sustained a compensable injury.
     Substantial evidence is that evidence which a reasonable
person might accept as adequate to support a conclusion.  Crawford
v. Pace, 55 Ark. App. 60, 929 S.W.2d 727 (1996).  A decision by the
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.  Id.  Based on the record and the
evidence before us, we cannot say that there is no substantial
basis to support the Commission's denial of benefits.
     Affirmed.
     Pittman and Meads, JJ., agree.