Mary Dormany v. Wal-Mart Stores, Inc.

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN B. ROBBINS, JUDGE

DIVISION I

MARY DORMANY

APPELLANT

V.

WAL-MART STORES, INC.

APPELLEE

CA 00-508

MARCH 7, 2001

APPEAL FROM THE ARKANSAS

WORKERS' COMPENSATION

COMMISSION, [NO. E800135]

REVERSED AND REMANDED

Appellant Mary Dormany was working for appellee Wal-Mart Stores on November 15, 1997, when she sustained compensable injuries to her elbow and shoulder. As a result of her injuries, she received medical benefits as well as temporary total disability benefits. Ms. Dormany contended that she was also entitled to benefits for a permanent partial impairment rating, which were controverted by Wal-Mart. After a hearing, the Commission ruled that she was not entitled to permanent benefits because the impairment rating was not based upon objective findings. Ms. Dormany now appeals from this ruling.

When reviewing a decision of the Workers' Compensation Commission, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the findings of the Commission and affirm if the decision is supported by substantial evidence.

Hooks v. Gaylord Container Corp., 67 Ark. App. 159, 992 S.W.2d 844 (1999). In the cases where a claim is denied because a claimant failed to show entitlement to compensation bya preponderance of the evidence, the substantial-evidence standard of review requires that we affirm if a substantial basis for the denial of relief is displayed by the Commission's opinion. Id. Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Service Chevrolet v. Atwood, 61 Ark. App. 190, 966 S.W.2d 909 (1998).

Ms. Dormany testified that she injured her elbow and shoulder after sustaining a fall at work. She was treated by Dr. Phillip Johnson, was diagnosed with a fracture dislocation of the elbow, and underwent surgery. Over the next few months, Dr. Johnson noted healing since the surgery and performed range-of-motion tests. Ms. Dormany testified that these tests consisted of Dr. Johnson rotating her arm in different directions to see how far it would go. According to Ms. Dormany, "He would pull it until I would yell, at which time he would stop."

On February 5, 1998, an MRI of Ms. Dormany's shoulder produced negative findings. On February 11, 1998, Dr. Johnson reported, "Actually her shoulder is normal and she has in effect an adhesive capsulitis of the shoulder secondary to her elbow injury." Dr. Johnson performed range-of-motion tests on both the elbow and shoulder on March 29, 1998, and noted considerable restrictions. Based on his range-of-motion testing and the AMA guidelines, Dr. Johnson assigned a five percent permanent anatomical rating to Ms. Dormany's elbow, and a seven percent rating to her shoulder.

On appeal, Ms. Dormany argues that the Commission erred in failing to accept Dr. Johnson's impairment ratings and award permanent benefits. She acknowledges that, pursuant to Ark. Code Ann. § 11-9-704(c)(1) (B) (Repl. 1996), "Any determination of theexistence or extent of physical impairment shall be supported by objective and measurable physical or mental findings." She further concedes that the court of appeals has held that range-of-motion tests do not produce objective findings if they can come under the voluntary control of the patient. See Ark. Code Ann. § 11-9-102(16)(A)(i); Cox v. CFSI Temporary Employment, 57 Ark. App. 310, 944 S.W.2d 856 (1997). However, Ms. Dormany notes that, under the authority of Ark. Code Ann. §§ 11-9-519(h), 11-9-521(h), and 11-9-522(g), the Commission adopted Rule 34. This rule provides that the AMA Guidelines to the Evaluation of Permanent Impairment, 4th ed., shall be followed in determining permanent impairment ratings. Ms. Dormany asserts that the only tests prescribed by the guidelines for rating shoulder and elbow injuries, other than those involving amputation, are range of motion tests, which were performed by Dr. Johnson pursuant to the guidelines. Ms. Dormany submits that the requirements for establishing a permanent impairment appear to be inconsistent, and argues that the only logical way to construe the statutes is to hold that benefits for a permanent impairment are established if the AMA guidelines are properly followed by the physician, as long as the compensable injury itself was established by objective findings.

Alternatively, Ms. Dormany argues that even if she was required to prove the existence of her permanent impairment through objective findings, she did so in this case. She notes that Dr. Johnson indicated in a form prepared by her attorney that his impairment rating was based on objective data. Ms. Dormany suggests that even though her rating was based on range-of-motion tests, these were objective because they constituted passive, as opposed to active, testing.

The Commission decided this case without the benefit of our decision in Hayes v. Wal-Mart Stores, Inc., 71 Ark. App. 207, 29 S.W.3d 751 (2000). Hayes involved passive range-of-motion evaluations and under the circumstances presented in that case we held that such tests constituted objective findings pursuant to Ark. Code Ann. § 11-9-102(16)(A)(i). Consequently, we reverse and remand this case to the Commission with directions to reconsider its holding in light of Hayes v. Wal-Mart, supra.

Reversed and remanded.

Neal, J., agrees.

Griffen, J., concurs.

Wendell L. Griffen, Judge, concurring. I agree with the majority that we should reverse and to remand the Commission. However, I write separately to voice my view that strict construction of Arkansas Code Annotated section 11-9-102(16)(A)(ii) (Repl. 1996), prohibits its application to shoulder and elbow injuries.

Workers' compensation statutes are strictly construed by the Commission and the courts. See Ark. Code Ann. § 11-9-704(c)(3) (Repl. 1996). Our workers' compensation statutes require a claimant to establish the existence and extent of a compensable injury by objective medical evidence. See Ark. Code Ann. § 11-9-704(c)(ii)(B) (Repl. 1996). Objective findings are definedas those findings that do not fall under the voluntary control of the claimant. See Ark. Code Ann. § 11-9-102(16)(A)(i) (Supp. 1999).

Arkansas Code Annotated section 11-9-102(16)(A)(ii) (Repl. 1996) provides that "when determining physical or anatomical impairment, neither a physician, any other medical provider, an administrative law judge, the Workers' Compensation Commission,nor the courts may consider complaints of pain; for the purpose of making physical or anatomical impairment ratings to the spine, straight-leg raising tests or range of motion tests shall not be considered objective findings." (Emphasis added.)

Range of motion tests as they apply to shoulder injuries are discussed in John J. Gartland, M.D., Fundamentals of Orthopaedics 247-48 (3d ed. 1979). Gartland states that range of joint motion may be assessed actively and passively. He describes the active motion assessment as including full active range of flexion, extension, abduction, adduction, and internal and external rotation of both shoulders with any discrepancies noted. Gartland notes that the same assessments should be observed passively to determine joint tightness.

As the majority opinion notes, Dr. Johnson performed passive range of motion tests on appellant's elbow and shoulder on March 29, 1998. Based on the range of motion assessments and the AMA guidelines, Dr. Johnson assigned an anatomical rating to appellant's injuries. However, in support of its decision that appellant failed to prove by a preponderance of the evidence that she was entitled to permanent partial disability benefits, the Commission, in adopting the ALJ findings, found that range of motion tests are not objective findings, pursuant to section 11-9-102(16)(A)(ii).

I would hold that we are prohibited from applying section 11-9-102(16)(A)(ii), which relates to range of motion tests to the spine, to appellant's shoulder and elbow injuries when we adhere to the requirement that we strictly construe the provisions of the Workers' Compensation Code. We must also reject applying section 11-9-102(16)(A)(ii) when we consider the fact that the Commission has established Rule 34 in order to implement an impairment rating guide to be used in the assessment of anatomical impairment. In addition, the Commission has expressly adopted Guides to the Evaluation of Permanent Impairment (4th ed. 1993) for the purpose of evaluating permanent impairment, except for sections dealing with pain, straight leg raising tests, or range of motion tests when making physical or anatomical impairment ratings to the spine.

No authority has been cited for the proposition that injuries to the shoulders or elbows are injuries to the spine. In fact, we should doubt the validity of any reference that advances such an obviously absurd assertion. That is why I would hold that the Commission's decision denying the impairment ratings for appellant's shoulder and elbow injuries should be reversed as a matter of law.