Service Chevrolet v. Doug Atwood

SERVICE CHEVROLET v. Doug ATWOOD

CA 97-618                                          ___ S.W.2d ___

                  Court of Appeals of Arkansas
                           Division I
                 Opinion delivered April 8, 1998


1.   Workers' compensation -- standard of review -- substantial evidence
     defined. -- In determining the sufficiency of the evidence to
     sustain the Workers' Compensation Commission's findings, the
     appellate court reviews the evidence in the light most
     favorable to the Commission's findings and affirms if they are
     supported by substantial evidence; substantial evidence is
     such relevant evidence as a reasonable mind might accept as
     adequate to support a conclusion; the issue is not whether the
     appellate court might have reached a different result or
     whether the evidence would have supported a contrary finding;
     rather, the extent of the court's inquiry is to determine if
     the Commission's findings are supported by substantial
     evidence. 

2.   Workers' compensation -- credibility of witnesses -- Commission's function
     to determine. -- It is the function of the Workers' Compensation
     Commission to determine the credibility of the witnesses and
     the weight to be given their testimony.

3.   Workers' compensation -- medical opinion -- Commission has authority to
     accept or reject -- findings have force and effect of jury verdict. --
     The Workers' Compensation Commission has the authority to
     accept or reject medical opinion and the authority to
     determine its medical soundness and probative force; the
     testimony of medical experts is an aid to the Commission in
     its duty to resolve issues of fact; 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.

4.   Workers' compensation -- arguments went to weight and credibility of
     testimony -- matters exclusively within province of Commission. -- Where
     appellant argued that appellee did not prove that he sustained
     a compensable injury under Ark. Code Ann.  11-9-
     102(5)(A)(i)(Supp. 1997), contending that appellee failed to
     report his injury in a timely fashion and failed to seek
     medical treatment in a timely fashion, the appellate court
     declared that those arguments went to the weight and
     credibility of the testimony and that those matters were
     exclusively within the province of the Workers' Compensation
     Commission.

5.   Workers' compensation -- compensable injury -- timely reporting not
     required by statute. -- The statutory definition of a compensable
     injury does not require timely reporting of an injury, or
     receipt of medical treatment within a specified period. [See
     Ark. Code Ann.  11-9-102(5)(A)(i).]

6.   Workers' compensation -- credibility of claimant -- Commission's function
     to determine. -- It is the Workers' Compensation Commission's
     function to determine the credibility of the claimant and the
     weight to be given to his testimony concerning his medical
     history.

7.   Workers' compensation -- substantial evidence supported Commission's
     findings. -- Where the Workers' Compensation Commission relied
     upon appellee's relation of his left-eye problems to a
     chemical injury he sustained while employed by appellant and
     upon appellee's and an ophthalmologist's indications that the
     wheel cleaner appellee had been using at the time of his
     injury was an acidic solution, substantial evidence supported
     the Commission's findings.

8.   Statutes -- construction -- basic rule. -- In considering the meaning
     of a statute, the appellate court construes it just as it
     reads, giving the words their ordinary and usually accepted
     meaning in common language; the basic rule of statutory
     construction to which all other interpretive guides defer is
     to give effect to the intent of the legislature; a legislature
     is presumed, in enacting a statute, to have had in mind court
     decisions pertaining to the subject legislated on and to have
     acted with reference to them.

9.   Workers' compensation -- medical opinions addressing compensability --
     prior law changed. -- Where prior workers' compensation law did
     not bar a finding of causal connection if a doctor used
     tentative expressions or phrases, provided that there was
     other evidence supporting the conclusion, Ark. Code Ann.
     section 11-9-102(16)(B) (Supp. 1997) changed prior law; now,
     medical opinions addressing compensability under  11-9-
     102(5)(A)(i) must be stated in terms expressing the medical
     expert's reasonable certainty that the claimant's internal or
     external physical harm was caused by his accidental injury.

10.  Workers' compensation -- physician's opinion complied with statutory
     requirement. -- Where an ophthalmologist, relying upon appellee's
     account, stated that "[c]ertainly, an acidic solution such as
     wheel cleaner can cause irregular corneal astigmatism like
     that present in [appellee]," the appellate court concluded
     that the opinion complied with the Ark. Code Ann. section 11-
     9-102(16)(B).

11.  Workers' compensation -- reservation of issue of permanent disability
     justified. -- Where appellee's initial medical treatment and
     evaluation were never completed, a reservation of the issue of
     permanent disability for later determination was justified.


     Appeal from the Arkansas Workers' Compensation Commission;
affirmed.
     Walter A. Murray, for appellant.
     David E. Smith, for appellee.

     D. Franklin Arey, III, Judge.
     The Workers' Compensation Commission found that the appellee,
Douglas Atwood, sustained a compensable injury to his left eye. 
The appellant, Service Chevrolet, was found to be responsible for
appellee's medical treatment and expenses; the Commission approved
reservation of the issue of appellee's permanent disability pending
additional treatment.  Appellant argues on appeal that the
Commission's decision is not supported by substantial evidence, and
that the Commission erred by reserving the issue of permanent
disability for later determination.  We affirm.  
     In determining the sufficiency of the evidence to sustain the
Commission's findings, we review the evidence in the light most
favorable to the Commission's findings and affirm if they are
supported by substantial evidence.  Stephens Truck Lines v.
Millican, 58 Ark. App. 275, 950 S.W.2d 472 (1997).  Substantial
evidence is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.  Id.  The issue is not
whether we might have reached a different result or whether the
evidence would have supported a contrary finding; rather, the
extent of our inquiry is to determine if the Commission's findings
are supported by substantial evidence.  See Bearden Lumber Co. v.
Bond, 7 Ark. App. 65, 644 S.W.2d 321 (1983).  
     In making our review, we recognize that it is the function of
the Commission to determine the credibility of the witnesses and
the weight to be given their testimony.  Whaley v. Hardee's, 51
Ark. App. 166, 912 S.W.2d 14 (1995).  The Commission has the
authority to accept or reject medical opinion and the authority to
determine its medical soundness and probative force.  McClain v.
Texaco, Inc., 29 Ark. App. 218, 780 S.W.2d 34 (1989).  The
testimony of medical experts is an aid to the Commission in its
duty to resolve issues 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.  Id.
     Appellant employed appellee to detail cars.  On January 30,
1995, appellee was spraying cleaner on the wheel of a car when a
drop of the cleaner splashed into his left eye.  Appellee
immediately washed his eye with water but did not report the
incident at that time.  Appellee testified that he began to
experience difficulties with his left eye approximately one week
after the incident.  His initial symptoms included redness,
swelling, watering, and matting of the left eye.  Appellee
eventually reported the incident because these symptoms persisted. 
     John McDonald, appellant's service manager, testified that
sometime after January 30, 1995, appellee informed him that he had
splashed the tire cleaner in his eye, and that his eye was burning. 
McDonald advised appellee to go to the office, fill out a workers'
compensation report, and go see his doctor.  An injury report was
completed on February 20, 1995, suggesting that appellee first
reported the incident approximately three weeks after it occurred.
     Appellee was referred by his initial treating physician to Dr.
Susan Blair, an ophthalmologist.  She first saw appellee on May 12,
1995.  Her report noted that appellee experienced problems with his
eye since the time of the injury, and that he experienced watering,
redness, swelling, and decreased vision in his left eye.  Dr. Blair
prescribed non-steroidal, anti-inflammatory eye drops.  She
subsequently noted that the redness, pain, and swelling in the left
eye improved.
     Visual acuity testing indicated that appellee's vision was
20/20 in the right eye and 20/40 in the left eye.  Dr. Blair
referred appellee for a corneal topography at UAMS, which confirmed
irregular astigmatism in the cornea of appellee's left eye as
compared to a normal topography of appellee's right eye.
     In a report dated August 4, 1995, Dr. Blair noted appellee's
reported history of splashing wheel cleaner in his left eye.  She
observed that she did "not have a record of what medical evaluation
was completed at the time of the initial injury."  She diagnosed
irregular corneal astigmatism in appellee's left eye accounting for
his mild decrease in visual acuity in that eye.  She continued:
     An ophthalmologic exam before and immediately after the
     injury would be needed to clearly associate the injury
     with this.  Certainly, an acidic solution such as wheel
     cleaner can cause irregular corneal astigmatism like what
     is present in Mr. Atwood's eye.

     The Commission concluded that appellee proved by a
preponderance of the evidence each of the requirements necessary to
establish a compensable injury.  It noted the objective findings by
Dr. Blair and her observations of redness and swelling, as well as
the abnormality indicated by the corneal topography.  The
Commission further noted that appellee consistently related his
left eye problems to a chemical injury sustained on January 30,
1995; that both appellee and Dr. Blair indicated that the wheel
cleaner was an acidic solution; and that Dr. Blair opined that an
acidic solution such as the wheel cleaner can cause irregular
corneal astigmatism like that present in appellee's left eye. 
     Appellant first argues that appellee did not prove that he
sustained a compensable injury under Ark. Code Ann.  11-9-
102(5)(A)(i)(Supp. 1997).  In support of this argument, appellant
contends that appellee failed to report his injury in a timely
fashion and failed to seek medical treatment in a timely fashion. 
These arguments go to the weight and credibility of the testimony,
and these matters are exclusively within the province of the
Commission.  See Stephens Truck Lines, 58 Ark. App. at 278, 950 S.W.2d  at 474.  The statutory definition of a compensable injury
does not require timely reporting of an injury, or receipt of
medical treatment within a specified period.  See Ark. Code Ann. 
11-9-102(5)(A)(i).  
     Appellant next argues that the Commission's opinion is based
upon speculation and conjecture, because appellee did not introduce
certain medical records, nor did he introduce evidence of the
toxicity of the wheel cleaner.  These arguments fail to recognize
that it is the Commission's function to determine the credibility
of appellee, and the weight to be given to his testimony concerning
his medical history.  See Whaley, 51 Ark. App. at 169-70, 912 S.W.2d  at 15.  The Commission obviously relied upon appellee's
relation of his left eye problems to the chemical injury he
sustained on January 30, 1995.  Further, it relied upon appellee's
and Dr. Blair's indications that the wheel cleaner was an acidic
solution.  Thus, substantial evidence supports the Commission's
findings.  
     Appellant also argues that Dr. Blair's medical testimony was
not stated to a reasonable degree of medical certainty. 
Specifically, appellant argues that the standard is not satisfied
by Dr. Blair's opinion that the wheel cleaner "can" cause an
irregular corneal astigmatism.  
     Appellant's argument requires us to further interpret Act 796
of 1993.  In considering the meaning of a statute, we construe it
just as it reads, giving the words their ordinary and usually
accepted meaning in common language.  Vanderpool v. Fidelity &
Casualty Ins. Co., 327 Ark. 407, 939 S.W.2d 280 (1997); Terral v.
Terral, 212 Ark. 221, 205 S.W.2d 198 (1947).  The basic rule of
statutory construction to which all other interpretive guides defer
is to give effect to the intent of the legislature.  Vanderpool,
327 Ark. at 415, 939 S.W.2d  at 285.  A legislature is presumed, in
enacting a statute, to have had in mind court decisions pertaining
to the subject legislated on and to have acted with reference
thereto.  Terral, 212 Ark. at 228, 205 S.W.2d  at 201.
     Prior to the passage of Act 796, proof of causation in
workers' compensation cases did not require medical certainty.  See
Hubley v. Best Western-Governor's Inn, 52 Ark. App. 226, 232 & n.1,
916 S.W.2d 143, 146 & n.1 (1996).  Our decisions simply did not
require physicians to express opinions in terms of either a "most
likely possibility" or "a reasonable degree of medical certainty." 
Pittman v. Wygal Trucking Plant, 16 Ark. App. 232, 700 S.W.2d 59
(1985).  Thus, in pre-Act 796 cases, we held that the medical
experts' use of such terms as "possible" or "might cause," among
others, did not preclude a finding of causal connection provided
there was other evidence supporting that conclusion.  Id.; see
Carter v. Flintrol, Inc., 19 Ark. App. 317, 720 S.W.2d 337 (1986). 

     Act 796 clearly works a change in our prior law.  Section 11-
9-102(5)(D) states that "[a] compensable injury must be established
by medical evidence...."  Section 11-9-102(16)(B) requires that
"[m]edical opinions addressing compensability... must be stated
within a reasonable degree of medical certainty...."  The statute
does not require the use of the phrase, "reasonable degree of
medical certainty."  Rather, it requires that the opinion be stated
within a reasonable degree of medical certainty.  
     Viewed in the context of our prior law, the change wrought by
 11-9-102(16)(B) becomes apparent.  Our prior law did not bar a
finding of causal connection if a doctor used tentative expressions
or phrases, provided that there was other evidence supporting the
conclusion.  See Pittman, 16 Ark. App. at 236, 707 S.W.2d  at 61-62. 
We presume that the General Assembly was aware of this when it
enacted Act 796.  See Terral, supra.  Section 11-9-102(16)(B)
changes prior law.  Now, medical opinions addressing compensability
under  11-9-102(5)(A)(i) must be stated in terms expressing the
medical expert's reasonable certainty that the claimant's internal
or external physical harm was caused by his accidental injury.
     A recent decision of the Supreme Court of Nebraska is helpful
in this regard:
     Our cases discussing the sufficiency of expert opinions
     have been a survey of various characterizations by the
     claimant's experts as to how certain they are that the
     claimant's injury was caused by his or her employment. 
     We have held that expert medical testimony based on
     "could," "may," or "possibly" lacks the definiteness
     required to meet the claimant's burden to prove
     causation.  Our well-known preference for the use of the
     phrases "reasonable degree of medical certainty" or
     "reasonable degree of probability" is an indication to
     courts and parties of the necessity that the medical
     expert opinion must be stated in terms that the trier of
     fact is not required to guess at the cause of the injury.
     
Paulsen v. State, 249 Neb. 112, 121, 541 N.W.2d 636, 643
(1996)(citations omitted).  Although the court expressed a
preference for certain phrases, it noted "that an expert opinion is
to be judged in view of the entirety of the expert's opinion and is
not validated or invalidated solely on the basis of the presence or
lack of the magic words þreasonable medical certainty.'"  Id.  
     Applying this reading of  11-9-102(16)(B), appellant's
challenge to Dr. Blair's opinion must fail.  Relying upon
appellee's account, Dr. Blair stated that "[c]ertainly, an acidic
solution such as wheel cleaner can cause irregular corneal
astigmatism like that present in [appellee]."  This opinion
complies with the statute.  
     Appellant also challenges the Commission's reservation of the
issue of permanent disability for later determination.  Appellant
contends that if appellee has not developed his evidence, he should
not be allowed a second chance to offer proof.  Appellant cites
Ark. Code Ann.  11-9-705(c)(1) for the proposition that all
evidence must be presented in the initial hearing.
     Appellee sought permanent disability compensation for the
decreased visual acuity caused by the irregular corneal astigmatism
in his left eye.  The Commission affirmed the administrative law
judge's reservation of this issue.  The Commission referenced Dr.
Blair's determination that appellee's uncorrected visual acuity is
20/40, and her statement that his visual acuity may be subject to
improvement by use of a hard contact lens over the cornea. 
Arkansas Code Annotated  11-9-521(c)(2) 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.  Since all medical treatment had been controverted, and
since Dr. Blair had not yet determined the degree of correctable
impairment, the Commission found that the ALJ properly reserved
this issue.
     We agree.  Appellee's initial medical treatment and evaluation
were never completed, justifying a reservation of the issue of
permanent disability for later determination.  See Gansky v. Hi-
Tech Eng'g, 325 Ark. 163, 924 S.W.2d 790 (1996).  
     Affirmed.
     Neal and Griffen, JJ., agree.