Branscum v. RNR Constr. Co.

Richard BRANSCUM v. RNR CONSTRUCTION COMPANY

CA 97-217                                          ___ S.W.2d ___

                  Court of Appeals of Arkansas
                           Division I
               Opinion delivered January 14, 1998


1.   Workers' compensation -- post-traumatic stress disorder --
     whether condition meets established criteria a question of
     fact. -- Pursuant to Ark. Code Ann.  11-9-113(a)(2) (Repl.
     1996), the diagnosis of post-traumatic stress disorder must
     meet the criteria established in the most current issue of the
     Diagnostic and Statistical Manual of Mental Disorders; the
     question whether the diagnosis of the condition meets the
     criteria established in the DSM must ordinarily be one of
     fact; the claimant has the burden of proof on this issue by a
     preponderance of the evidence. 

2.   Workers' compensation -- review of decision -- substantial
     evidence defined. -- In reviewing the Workers' Compensation
     Commission's decision on a question of fact, the appellate
     court will affirm the Commission if its decision is supported
     by substantial evidence; substantial evidence is such relevant
     evidence as a reasonable mind might accept as adequate to
     support a conclusion.

3.   Workers' compensation -- claim denied -- standard of review. -
     - Where a claim is denied, the substantial evidence standard
     of review requires the appellate court to affirm the Workers'
     Compensation Commission if its opinion displays a substantial
     basis for the denial of the relief sought.

4.   Workers' compensation -- no proof DSM criteria met --
     Commission's decision supported by substantial evidence. --
     Where neither doctors' report referred to the DSM nor to the
     criteria for the various disorders discussed, there was no
     evidence that conclusively established that the DSM criteria
     were met; the Workers' Compensation Commission's opinion
     adequately explained why it was not persuaded that the
     diagnosis of the appellant met the criteria established by the
     DSM; the decision that appellant did not sustain a compensable
     mental injury was supported by substantial evidence.

5.   Workers' compensation -- Commission declined to award wage-
     loss disability over and above appellant's physical impairment
     rating -- decision supported by substantial evidence. -- Where
     the Workers' Compensation Commission found that, after taking
     into consideration the claimant's age, education, work
     experience, medical evidence, post-injury income, credibility,
     demeanor, and interest in returning to work, the claimant had
     not sustained any disability over and above his physical
     impairment rating; and where the claimant failed to prove by
     a preponderance of the evidence any wage-loss disability; the
     Commission's decision declining to award wage-loss disability
     over and above appellant's physical impairment rating was
     supported by substantial evidence.  


     Appeal from the Arkansas Workers's Compensation Commission;
affirmed.
     McDaniel & Wells, P.A., by:  Phillip Wells, for appellant.
     Huckabay, Munson, Rowlett & Tilley, P.A., by:  Jim Tilley and
Julia Busfield, for appellee.

     John E. Jennings, Judge.
     The appellant, Richard Branscum, was a general contractor and
manager of RNR Construction Company, a heating and air conditioning
business.  At the time of the hearing below he was thirty-one years
old.  On May 9, 1994, he was working in Blytheville, Arkansas, when
he fell approximately thirty-five feet from a "bucket truck."  He
sustained back and internal injuries.  A bone scan of
Mr. Branscum's back was normal.  Dr. Ed Pratt, an orthopaedic
surgeon, diagnosed his condition as chronic low-back pain and leg
pain and concluded that the condition was "non-operative." 
Dr. Moacir Schnapp concluded in November 1994 that Mr. Branscum had
reached maximum medical improvement and rated his anatomical
impairment at twenty percent to the body as a whole.  
     At a hearing before the administrative law judge, Mr. Branscum
contended that as a result of his compensable injury he suffered
from psychological problems, including depression and post-
traumatic stress disorder, for which he was entitled to appropriate
benefits.  He also contended that he was permanently and totally
disabled as a result of the injury.  The administrative law judge
awarded Branscum a thirty percent wage-loss disability.
     The employer appealed to the full Commission arguing that the
award of wage-loss disability was error.  Mr. Branscum cross-
appealed, arguing that the award was inadequate.  The Commission
held that Branscum was not entitled to an award of wage-loss
disability.  Specifically, the Commission held: (1) that Branscum's
psychological injury was not compensable because it was not shown,
pursuant to Ark. Code Ann.  11-9-113(a)(2) (Repl. 1996), that the
diagnosis of the condition meets the criteria established in the
most current issue of the Diagnostic and Statistical Manual of
Mental Disorders, ("DSM"); and (2) that even if the claimant's
psychological condition was compensable, he would not be entitled
to wage-loss disability because of the limitation of benefits in
section 11-9-113(b)(1) (Repl. 1996).
     On appeal to this court, Branscum contends that both holdings
of the Commission were error and that, when the effects of his
psychological problems are considered, it was error for the
Commission not to award wage-loss disability.  Because we hold that
the Commission's finding that Branscum's psychological condition
was not compensable is supported by substantial evidence, we
affirm.  
     Arkansas Code Annotated section 11-9-113(a)(2) (Repl. 1996)
provides:
               No mental injury or illness under this
          section shall be compensable unless it is also
          diagnosed by a licensed psychiatrist or
          psychologist and unless the diagnosis of the
          condition meets the criteria established in
          the most current issue of the Diagnostic and
          Statistical Manual of Mental Disorders.  

     The most current issue of that publication is the fourth
edition, copywritten in 1994 by the American Psychiatric
Association.  As an example, the diagnostic criteria for post-
traumatic stress disorder are listed at page 428 of the manual:
               A.   The person has been exposed to a
          traumatic event in which both of the following
          were present:

               (1)  the person experienced,
               witnessed, or was confronted with an
               event or events that involved actual
               or threatened death or serious
               injury, or a threat to the physical
               integrity of self or others 

               (2)  the person's response involved
               intense fear, helplessness, or
               horror.  Note: In children, this may
               be expressed instead by disorganized
               or agitated behavior

               B.   The traumatic event is persistently
          reexperienced in at least one of the following
          ways:

               (1)  recurrent and intrusive
               distressing recollections of the
               event, including images, thoughts,
               or perceptions.  Note: In young
               children, repetitive play in which
               themes or aspects of the trauma are
               expressed
               (2)  recurrent distressing dreams of
               the event.  Note: In children, there
               may be frightening dreams without
               recognizable content.
               (3)  acting or feeling as if the
               traumatic event were recurring
               (includes a sense of reliving the
               experience, illusions,
               hallucinations, and dissociative
               flashback episodes, including those
               that occur on awakening or when
               intoxicated).  Note: In young
               children, trauma-specific
               reenactment may occur. 
               (4)  intense psychological distress
               at exposure to internal or external
               cues that symbolize or resemble an
               aspect of the traumatic event
               (5)  physiological reactivity on
               exposure to internal or external
               cues that symbolize or resemble an
               aspect of the traumatic event

               C.   Persistent avoidance of stimuli
          associated with the trauma and numbing of
          general responsiveness (not present before the
          trauma), as indicated by three (or more) of
          the following:

               (1)  efforts to avoid thoughts, 
               feelings, or conversations
               associated with the trauma
               (2)  efforts to avoid activities,
               places, or people that arouse
               recollections of the trauma
               (3)  inability to recall an
               important aspect of the trauma 
               (4)  markedly diminished interest or
               participation in significant
               activities 
               (5)  feeling of detachment or
               estrangement from others
               (6)  restricted range of affect,
               (e.g., unable to have loving
               feelings)
               (7)  sense of a foreshortened future
               (e.g., does not expect to have a
               career, marriage,  children, or a
               normal life span)

               D.   Persistent symptoms of increased
          arousal (not present before the trauma), as
          indicated by at least two (or more) of the
          following:

               (1)  difficulty falling or staying
               asleep
               (2)  irritability or outbursts of anger
               (3)  difficulty concentrating
               (4)  hypervigilance
               (5)  exaggerated startle response

               E.   Duration of the disturbance
          (symptoms in Criteria B, C, and D) is more
          than one month.

               F.   The disturbance causes clinically
          significant distress or impairment in social,
          occupational, or other important areas of
          functioning.  

               Specify if:

               Acute:    if duration of symptoms is
               less than 3 months

               Chronic:  if duration of symptoms is
               3 months or more

               Specify if:

               With delayed onset: if onset of symptoms
               is at least 6 months after the stressor.

     The question whether the diagnosis of the condition meets the
criteria established in the DSM must ordinarily be one of fact. 
The claimant has the burden of proof on this issue by a
preponderance of the evidence.  Ark. Code Ann.  11-9-102(5)(e)(i)
(Supp. 1997).  In reviewing the Commission's decision on a question
of fact, we will affirm the Commission if its decision is supported
by substantial evidence.  McMillan v. U.S. Motors, 59 Ark. App. 85,
953 S.W.2d 907 (1997).  Substantial evidence is such relevant
evidence as a reasonable mind might accept as adequate to support
a conclusion.  City of Fort Smith v. Brooks, 40 Ark. App. 120, 842 S.W.2d 463 (1992).
     In the case at bar Dr. Paul Neal, a clinical psychologist,
reported that "the suggested diagnoses" for Mr. Branscum were post-
traumatic stress disorder, major depression with melancholy and
generalized anxiety disorder, and mixed personalities disorder with
borderline and avoidant features.  A report from Dr. John Harris,
a psychiatrist, stated that appellant's thought content included
"symptoms suggesting the presence of a post-traumatic stress
disorder...."  It was his impression that Mr. Branscum had major
depression, single episode, and post-traumatic stress disorder, "by
history."  In a later report Dr. Harris concluded that there was no
basis to conclude that Mr. Branscum suffered from the effects of
significant psychiatrical impairment.  
     Neither Dr. Neal's nor Dr. Harris's reports refers to the DSM
nor to the criteria for the various disorders discussed.  It is
true that Dr. Harris's first report refers to five axes which
correspond to the system of "multi-axial assessment" set out by the
DSM, but this cannot be said to conclusively establish that the DSM
criteria were met.  Where a claim is denied, the substantial
evidence standard of review requires us to affirm the Commission if
its opinion displays a substantial basis for the denial of the
relief sought.  Linthicum v. Mar-Bax Shirt Co., 23 Ark. App. 26,
741 S.W.2d 275 (1987).  Here the Commission's opinion adequately
explains why it was not persuaded that the diagnosis of the
appellant met the criteria established by the DSM.
     The Commission went on to hold that, even if it were to find
that Mr. Branscum sustained a compensable mental injury, that
injury would not support an award of wage-loss disability because
Ark. Code Ann.  11-9-113(b) (Repl. 1996) limits recovery for a
compensable mental injury to twenty-six weeks of disability
benefits.  Although Branscum contends that this holding was error,
we need not reach the issue because we have upheld the Commission's
determination here that the mental injury was not compensable.
     Finally, appellant contends that the Commission erred in
declining to award wage-loss disability over and above his physical
impairment rating.  On this issue the Commission said:
          Consequently, even if we were to find that the
          claimant sustained a compensable, mental
          injury, which we do not find, we cannot use it
          as the basis for awarding wage loss
          disability.

               When we take into consideration the
          claimant's age, education, work experience,
          medical evidence, post-injury income,
          credibility, demeanor, and interest in
          returning to work, we find that the claimant
          has not sustained any disability over and
          above his physical impairment rating....  The
          functional capacity evaluation revealed that
          the claimant was capable returning to the
          workforce.  The limitations placed upon the
          claimant by the evaluation were far from
          rigorous, and the claimant was not unduly
          restricted.  The medical evidence clearly
          reveals that the claimant may and should
          return to the workforce.

               Despite the medical clearance to return
          to work, the claimant never attempted to
          return to work or to work rehabilitation, yet
          he has begun flying lessons.  At the time of
          the hearing, the claimant was only 31 years of
          age.  He is a high school graduate and he
          attended one year of college in addition to
          several vocational courses.  The claimant has
          experience supervising employees and he has
          owned his own business.  These factors coupled
          with the recommendations from his physicians
          that he return to work as well as Dr. Harris'
          evaluation which states there are "...no
          contradictions for Mr. Branscum to resume
          active participation in his previous
          vocation..." clearly show that the claimant
          has failed to prove by a preponderance of the
          evidence any wage loss disability.

     We cannot say that the Commission's decision in this regard
was not supported by substantial evidence.  
     For the reasons stated the Commission's decision is affirmed.
     Affirmed.
     Arey and Griffen, JJ., agree.