Clifford Mickle v. DeQueen Regional Medical Center, Transportation Insurance Company, and Second Injury Fund

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

SAM BIRD, JUDGE

DIVISION II

CLIFFORD MICKLE,

APPELLANT

v.

DEQUEEN REGIONAL MEDICAL CENTER, TRANSPORTATION INSURANCE COMPANY, and SECOND INJURY FUND

APPELLEES

CA02-241

DECEMBER 11, 2002

APPEAL FROM THE ARKANSAS WORKERS' COMPENSATION COMMISSION, NO. E808951

AFFIRMED

This workers' compensation case involves two compensable back injuries suffered by Clifford Mickle, appellant. The first injury occurred in the 1980s in Oregon when he fell onto a metal beam. As a result of that injury he underwent two lumbar surgeries and received vocational rehabilitation. Mickle subsequently was awarded a nineteen-and-a-half percent permanent physical impairment rating and a total functional rating of thirty percent in Oregon. He later moved to Arkansas where, while loading a semi-truck for DeQueen Regional Medical Center on July 22, 1998, he sustained the second compensable injury to his lower back.

Mickle received medical benefits and temporary total benefits related to his second injury from August 27 through November 1, 1998. He returned to his job as a maintenance

tech, where he worked until being let go in March 1999 because he was still taking strong pain medication. His claim for further benefits was denied by an administrative law judge, and the Workers' Compensation Commission affirmed and adopted that decision. Mickle raises three points of appeal from the Commission's decision. He contends (1) that he is entitled to a ten percent impairment rating as a result of the 1998 injury, (2) that he is permanently and totally disabled as a result of the 1987 and 1998 compensable injuries, and (3) that the Second Injury Fund is responsible for wage-loss disability. We disagree and affirm.

1. Whether the appellant is entitled to a ten percent impairment rating as a result of his compensable injury.

The Commission found that Mickle failed to prove that his compensable injury resulted in a compensable anatomical impairment rating. Mickle contends on appeal that he is entitled to the ten-percent rating commensurate with that of ratings specialist Dr. Barry Green, who performed an independent medical evaluation of Mickle in September 1999.1 Dr. Green opined that "[b]ased on AMA Guides to the Evaluation of Permanent Impairment, Fourth Edition, Page 110, Table 72, III, radiculopathy2 is present, and this would yield 10%whole person impairment." In a follow-up letter, Dr. Green wrote:

Due to the injury sustained by Mr. Mickle on 7/20/1998, I rated him based on the "Injury Model" of the Diagnostic Related Estimates. . . . He did have symptoms of radiculopathy and 10% whole person impairment was given on this basis. This has no bearing on his previous injury and the surgery that he had for it.

Arkansas Code Annotated section 11-9-704(c)(1)(B) (Repl. 1996) requires that any determination of the existence or extent of physical impairment must be supported by objective and measurable physical or mental findings. The Commission found that the record in the present case was void of any objective finding supporting a diagnosis of radiculopathy, and that the diagnosis was based at best on subjective complaints of aches, pain, numbness, and sensations of pins and needles. In making this finding, the Commission referred to the medical records of Dr. Ron S. Pritchard, a radiologist at De Queen Regional Medical Center; pain specialist Dr. Bruce Safman; and Dr. William Blankenship, who performed an independent medical evaluation of Mickle.

Dr. Pritchard reported that an August 7, 1998, MRI suggested a herniated disc at L4-5, but that this was a "somewhat discord finding" and that a myelography was recommended for further evaluation. After the myelography was finally performed on March 12, 1999, Dr. Pritchard reported that it showed a postsurgical change at L5-S1 but no definite abnormalities. Dr. Blankenship wrote on March 18, 1999, that he did not find any objective basis for permanent partial or total impairment as a result of the compensable injury. On December 28, 1998, Dr. Safman noted that Mickle had a small disc herniation at L4-5 on the right side, but that his symptoms were primarily on the left side.

We agree with the Commission that the diagnosis of radiculopathy in itself does not constitute an objective finding upon which to base an impairment rating. Here, neither the MRI nor the subsequent myelogram revealed objective evidence to support the diagnosis of radiculopathy, and Mickle does not direct us to anything else in the medical record to support the diagnosis. Because the only basis of Dr. Green's impairment rating was the diagnosis of radiculopathy, we affirm the Commission's finding that Mickle failed to prove entitlement to compensation for permanent physical impairment.

The Commission stated in its decision that even if it were to find a rating based solely upon radiculopathy to be an objective medical finding, it would not find that Mickle had established that his compensable lumbar injury of July 1998 was the major cause of the radiculopathy upon which the diagnosis was based. Arkansas Code Annotated section 11-9-102(5)(F)(ii) (Repl. 1996) states:

(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 preexisting 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

The claimant has the burden of proving by a preponderance of the evidence that his claim is compensable. Ringier Am. v. Combs, 41 Ark. App. 47, 849 S.W.2d 1 (1993).

The Commission noted Mickle's testimony that he went to Dr. Jonathan Hoyt for medication when he first moved to Arkansas, and that Mickle saw Dr. Hoyt in January 1997for complaints of low back pain "like he had prior to back surgery." The Commission also noted that Mickle advised Dr. Blankenship that the leg pain had remained since his surgery. The Commission found that Mickle clearly had a pre-existing condition of a post-operative laminectomy at L5 with recurrent surgery, as specifically noted by Dr. Blankenship and as evidenced in the medical records. Stating that Dr. Green was not aware of Mickle's complaints of continuous leg pain or of Mickle's visit to Dr. Hoyt, the Commission stated that it placed no weight on Dr. Green's rating. Thus, the Commission found that the basis of Dr. Green's anatomical impairment rating clearly pre-existed claimant's July 20, 1998, lumbosacral strain, and that Mickle had not proven that his compensable injury was the major cause of the permanent impairment assessed.

When a claim is denied because the claimant has failed to show an entitlement to compensation by a preponderance of the evidence, the substantial-evidence standard of review requires us to affirm if the Commission's opinion displays a substantial basis for the denial of relief. Daniels v. Arkansas Dep't Human Servs., 77 Ark. App. 99, 72 S.W.3d 128 (2002). The issue is not whether we might have reached a different result or whether the evidence would have supported a contrary finding; if reasonable minds could reach the Commission's conclusion, we must affirm its decision. Green Bay Packaging v. Bartlett, 67 Ark. App. 332, 999 S.W.2d 695 (1999). The Commission has the duty of weighing medical evidence, and if the evidence is conflicting, its resolution is a question of fact for the Commission. Id. The Commission is not required to believe the testimony of the claimant or any other witness, but may accept and translate into findings of fact only those portionsof the testimony it deems worthy of belief. Smith-Blair, Inc. v. Jones, 77 Ark. App. 273, 72 S.W.3d 560 (2002). In the present case, we find that the Commission's opinion displays a substantial basis for the denial of Mickle's claim that he was entitled to the ten percent impairment rating assigned by Dr. Green.

2. Whether the appellant was permanently and totally disabled as a result of his 1987 and 1998 compensable injuries.

The Commission ruled that because Mickle failed to establish that he sustained a compensable percentage of permanent physical impairment, he failed to prove entitlement to any benefits in excess of this percentage. We agree.

Disability is defined under Arkansas law as the "incapacity because of compensable injury to earn, in the same or other employment, the wages which the employee was receiving at the time of the compensable injury." Ark. Code Ann. § 11-9-102(9) (Repl. 1996). The wage-loss factor is the extent to which a compensable injury affects a person's ability to earn a livelihood. Eckhardt v. Willis Shaw Express, Inc., 62 Ark. App. 224, 976 S.W.2d 393 (1998). Any consideration of "the employee's age, education, work experience, and other matters reasonably expected to affect his earning capacity" may not occur until the Commission has first determined the percentage of permanent physical impairment. Wal-Mart Stores, Inc. v. Connell, 340 Ark. 475, 10 S.W.3d 882 (2000). Thus, in view of Mickle's failure of proof regarding permanent physical impairment, his claim for wage-loss disability also fails.

3. Whether the Second Injury Fund is responsible for appellant's wage-loss disability.

A claimant who is not entitled to wage-loss disability benefits from his employer or its insurance carrier cannot be entitled to benefits from the Second Injury Fund. Maxey v. Tyson Foods, Inc., 341 Ark. 306, 18 S.W.3d 328 (2000). The Commission correctly ruled that because there was no finding of wage-loss disability, there was no Second Injury Fund liability.

Affirmed.

Pittman and Hart, JJ., agree.

1 Rule 4-2 of Ark. R. Sup. Ct. 4-2(a)(7) directs that reference . . . to material found in the abstract and Addendum shall be followed by a reference to the page number of the abstract or Addendum at which such material may be found; subsection (a)(8) requires that in the case of lengthy documents, only relevant excerpts in context need to be included in the Addendum. (Emphasis ours.) The argument portion of appellant's brief cites pages of the transcript rather than pages of the abstract and Addendum, and the Addendum includes quite lengthy medical records from Oregon.

2 Radiculopathy is a disorder of the nerve roots. Stedman's Medical Dictionary, 26th Edition (1995).