Sullivan v. Paris Retirement Inn

Annotate this Case
Helen SULLIVAN v. PARIS RETIREMENT INN

CA 97-703                                          ___ S.W.2d ___

                  Court of Appeals of Arkansas
                        Divisions I & II
               Opinion delivered February 11, 1998


1.   Workers' compensation -- factors on review -- substantial
     evidence defined. -- When reviewing a decision of the Workers'
     Compensation Commission, the appellate court views the
     evidence and all reasonable inferences deducible therefrom in
     the light most favorable to the findings of the Commission and
     affirms that decision if it is supported by substantial
     evidence; substantial evidence is that which a reasonable
     person might accept as adequate to support a conclusion. 

2.   Workers' compensation -- appellant failed to produce evidence
     that compensable injury was major cause of disability --
     denial of claim supported by substantial evidence. -- Where
     the appellant's physician stated that the single event in this
     case would not have caused spondylosis, although it may have
     cause the disc herniation, he was unable to state that the
     compensable injury was the major cause of appellant's
     permanent disability, and he opined that appellant's neck and
     shoulder injury were not causally related to her other
     complaints, appellant failed to produce evidence that the
     compensable injury was the major cause of her disability;
     there was substantial evidence to support the Commission's
     decision denying compensability for appellant's claim for
     permanent partial disability benefits.

     Appeal from the Arkansas Workers' Compensation Commission;
affirmed.
     Walters, Hamby & Verkamp, by:  Michael Hamby, for appellant.
     Ledbetter, Hornberger, Cogbill, Arnold & Harrison, by:  James
A. Arnold, II and Rebecca D. Hattabaugh, for appellee.

     Olly Neal, Judge.
**   Helen Sullivan appeals from the portion of the order of the
Workers' Compensation Commission that denied the compensability of
her claim for permanent partial disability benefits.  For reversal
of the Commission's order, appellant argues that the Commission's
decision that she failed to prove, by a preponderance of the
evidence, entitlement to permanent partial disability benefits is
not supported by substantial evidence.  We affirm.
     Appellant was employed by appellee as a nurse's assistant
whose job duties included lifting patients out of bed to dress and
bathe them.  On October 10, 1994, appellant suffered an injury to
her right shoulder, for which appellee accepted compensability and
paid benefits.  Appellant suffered a second injury to her right
shoulder and neck on June 12, 1995.  Following her compensable
injury, appellant underwent a cervical fusion that was performed by
Dr. Luis Cesar.  Subsequent to that time, appellant developed a
number of complaints involving pain in her left heel, left arm,
left shoulder and right forearm.  Appellant then filed a claim for
workers' compensation disability benefits and contended that she
sustained injuries to those parts of her body as a result of
repetitive trauma while employed by appellee.  The administrative
law judge awarded appellant benefits for her admittedly compensable
injuries through June 9, 1996.  The ALJ also found that appellant
had failed to prove by a preponderance of the evidence that she is
entitled to any permanent partial disability benefits as the result
of her compensable injuries.  In addition, the ALJ found that
appellant failed to prove that she suffered a compensable injury to
her left heel, left arm, left shoulder, or right forearm while
employed by appellee.  The appellant then appealed to the
Commission, which affirmed and adopted the ALJ's decision as its
own.  
     When reviewing a decision of the Workers' Compensation
Commission, we view the evidence and all reasonably inferences
deducible therefrom in the light most favorable to the findings of
the Commission and affirm that decision if it is supported by
substantial evidence.  Atkins Nursing Home v. Gray, 54 Ark. App.
125, 923 S.W.2d 897 (1996).  Substantial evidence is that which a
reasonable person might accept as adequate to support a conclusion. 
Smith v. Gerber Products, 54 Ark. App. 57, 922 S.W.2d 365 (1996).
     Arkansas Code Annotated  11-9-102(5)(f)(ii) (Repl. 1996)
provides:
          (a)  Permanent benefits shall be awarded only upon
               a determination that the compensable injury was
               the major cause of the disability or impairment.

          (b)  If any compensable injury combines with a pre-
               existing disease or condition or the natural 
               process of aging to cause or prolong disability
               or a need for treatment, permanent benefits shall
               be payable for the resultant condition only if the
               compensable injury is the major cause of the
               permanent disability or need for treatment.

Arkansas Code Annotated  11-9-102 (14) (A) (Repl. 1996) defines
"major cause" as "more than fifty percent (50%) of the cause."
     At trial, the deposed testimony of Dr. Cesar was admitted into
evidence.  According to Dr. Cesar, he performed a cervical fusion
on appellant at the C5-6 level to correct a disc herniation.  While
conducting the surgery, Dr. Cesar also removed bone spurs that he
opined were the result of cervical spondylosis.  Dr. Cesar noted
that when performing surgery to address an injury to the neck there
generally is a combination of the bone spur and disc herniation. 
Dr. Cesar assigned appellant a permanent impairment rating of 7% to
the body as a whole based upon AMA Guidelines.  When questioned,
Dr. Cesar could not state whether the 7% rating was due mostly to
cervical spondylosis or mostly to the disc herniation, because the
impairment rating refers to the type of procedure a patient has had
and the result.
     According to appellant, Dr. Cesar's testimony should be
construed to mean that the ratings do not provide sufficient
information or guidance to allow him to award a rating based upon
causation, but merely refer to the fact that it was a single level
operation to the neck and the results of the surgery.  When asked
what cervical spondylosis is, Dr. Cesar responded:
          Cervical spondylosis is a general term that refers
          to changes that you see in the spin due to chronic
          progressive wear and tear alterations that you see
          as people grow old, and are generally characterized
          by the drying up of discs, narrowing of the vertebral
          space, spurs, and many times disc herniations.
     Dr. Cesar also stated that the single event in this case would
not have caused spondylosis, although it may have cause the disc
herniation.  Dr. Cesar was unable to state that the compensable
injury was the major cause of appellant's permanent disability. 
Dr. Cesar also opined that appellant's neck and shoulder injury
were not causally related to her other complaints.
     As stated earlier, on appeal we view the evidence in the light
most favorable to the Commission's findings.  Here, appellant has
failed to produce evidence that the compensable injury is the major
cause of her disability.  
     We hold that there is substantial evidence to support the
Commission's decision.
     Affirmed.
     Robbins, C.J., and Bird, Rogers, and Griffen, JJ., agree.
     Stroud, J., dissents.


             John F. Stroud, Jr., Judge, dissenting.
     I cannot agree with the majorityþs decision to affirm the
Commissionþs denial of the compensability of appellantþs claim for
permanent partial disability benefits because the Commission
ignored key testimony of Dr. Luis Cesar, the neurosurgeon who
performed the anterior cervical fusion on appellant.   
     In support of its conclusion that appellant had failed to
prove that she was entitled to permanent partial benefits as a
result of her work-related injuries, the Commission stated in its
decision that Dr. Cesar was unable to state whether the disc
herniation or the spondylosis was the major cause for the surgery
and resulting impairment rating.  Yet, appellantþs abstract shows
that Dr. Cesarþs deposition testimony includes the following:
     DIRECT EXAMINATION -- The disc herniation could be
     produced or caused by a single traumatic event or the
     gradual wear and tear process that would be associated
     with aging and normal activities of daily living. 
     Really, what guides us in determining that is basically
     on the history.  If the patient has a clear cut history
     of having had an event that precipitated a symptom that
     he did not have before, I have to assume that was the
     cause of it.  By the same token, if there was a history
     of similar symptoms or symptoms in the same area of the
     body prior to the incident, I would have to assume that
     there were other processes going on and this new event
     may have aggravated it.

                             . . . 

     CROSS EXAMINATION -- I donþt have any prior history that
     refers to neck problems in this patient.  It is possible
     that a patient may have spondylosis and be asymptomatic
     until an event triggers the symptoms and the need for a
     fusion.  It can occur that way.  In that situation, it
     would be my opinion that the major cause or need for the
     fusion would be the event that precipitated the symptom.

(Emphasis added.)  
     The Commissionþs decision does not refer to this expressed
opinion by Dr. Cesar, which supports appellantþs position. 
Although a physician's opinion is not conclusive or binding on the
Commission, the Commission is not free to arbitrarily disregard any
witness's testimony.  Wade v. Mr. C. Cavenaughþs, 25 Ark. App. 237,
242, 756 S.W.2d 923, 925 (1988).  
     Here, appellant had no prior history of problems with her
neck.  Dr. Cesar's medical opinion was that in such a situation the
major cause for the fusion would be the event precipitating the
symptom.  His testimony supports appellantþs position that she was
asymptomatic and did not have any need whatsoever for a cervical
fusion until her admittedly compensable work-related injury to her
neck.  In the Commissionþs decision, there is no explanation as to
why the Commission chose to ignore Dr. Cesarþs testimony in this
regard.
     I would reverse and remand this case to the Commission for a
finding that appellant met her burden of proof and is entitled to
an award of permanent partial disability benefits as a result of
her compensable injury. 
     I respectfully dissent.       

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