Poinsett County Sheriff's Department and Association of Arkansas Counties v. Edward O'Brien

DIVISION II

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN E. JENNINGS, JUDGE

CA 01-739

February 13, 2002

POINSETT COUNTY SHERIFF'S

DEPARTMENT and ASSOCIATION

OF ARKANSAS COUNTIES AN APPEAL FROM THE ARKANSAS

APPELLANTS WORKERS' COMPENSATION COMMISSION

VS.

EDWARD O'BRIEN AFFIRMED

APPELLEE

Edward O'Brien was a deputy sheriff in Poinsett County. On April 23, 1997, he was shot three times in a gun battle in the line of duty. The injury was accepted as compensable.

O'Brien was in an intensive care unit for eleven days and had his small intestine and a portion of his large intestine removed. He later developed a hernia at the site of the surgical incision. O'Brien also had two separate operations on his shoulder and had bullet fragments removed from his arm and side.

An administrative law judge, and then on appeal the full Commission, found that he had sustained a thirty-nine percent (39%)permanent impairment to the body as a whole. On appeal appellants contend that the Commission's award is not supported by substantial evidence. More specifically, appellants contend that the impair ment rating was not supported by "objective and measurable physical or mental findings" as required by Ark. Code Ann. § 11-9-704(c)-(1)(B) and that the injuries received by O'Brien in the line of duty were not the "major cause" of his disability or impairment under Ark. Code Ann. § 11-9-102(5)(F)(ii)(a). We affirm.

Substantial evidence, in the context of workers' compensation law, means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Wackenhut Corp. v. Jones, 73 Ark. App. 158, 40 S.W.3d 333 (2001). The thirty-nine percent (39%) anatomical impairment rating was arrived at by Dr. Kit Mays, O'Brien's pain specialist, who combined a twenty-six percent (26%) permanent impairment rating given by Dr. Barney Freeman, an orthopaedic surgeon, based on appellee's shoulder condition, with an eighteen percent (18%) permanent impairment rating to the lower extremity assessed by Dr. Mays. In dealing with appellants' first argument the full Commission stated:

[W]e have the following observations regarding the respondent's contention before the admini strative Law Judge and in their brief on appeal that Dr. Mays' 39% impairment rating does not satisfy the objective findings re quirement. The problem with the respondents' argument is, of course, that (1) the respon dents sent questions to Dr. Mays, (2) in areply letter, Dr. Mays advised that the impairment rating at issue was objectively measured and not under the voluntary control of the patient, (3) the respondents did not query Dr. Mays any further, and (4) the re spondents did not present any evidence in the record to rebut Dr. Mays' indication that his impairment rating was objectively measured and did not come within the voluntary control of the patient.

We see no reason to reject the Commission's reasoning. There is no reason the Commission could not accept the unrebutted testimony of Dr. Mays on this issue.

Appellants also contend that the Commission's finding that O'Brien's gunshot wounds were the "major cause" of his impairment is not supported by substantial evidence. This argument is based on the fact that O'Brien had several earlier injuries. In March 1992 he hurt his back lifting a motor vehicle accident victim. In 1993 he again injured his back in a scuffle with a prisoner. At that time degenerative disc disease was noted. In 1997, O'Brien fell and was diagnosed with a back sprain.

Certainly this evidence is relevant to the issue of major cause but given the extraordinary severity of the injuries Deputy O'Brien sustained in the gun battle, we think it clear that the Commission could reasonably find that those gunshot wounds and the subsequent complications were the major cause of his present disability.

Affirmed.

Stroud, C.J., and Crabtree, J., agree.