Nathaniel Jarrett v. Sol Alman Company, Inc. & CNA Insurance Company

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ca03-808

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION II

NATHANIEL JARRETT

APPELLANT

V.

SOL ALMAN COMPANY, INC. &

CNA INSURANCE CO.

APPELLEES

CA03-808

March 3, 2004

APPEAL FROM THE ARKANSAS WORKERS' COMPENSATION COMMISSION

[NO. E904563]

AFFIRMED

Larry D. Vaught, Judge

Appellant Nathaniel Jarrett challenges the sufficiency of the evidence supporting the opinion of the Arkansas Workers' Compensation Commission, which reversed the decision of the Administrative Law Judge (ALJ) and found that he was not entitled to benefits for a five-percent permanent-physical-impairment rating to the body as a whole. We affirm.

Appellant sustained a compensable lumbar injury on March 17, 1999, when he fell in a truck while working for appellee Sol Alman. He was paid for approximately four-and-a-half weeks of temporary-total-disability-benefits pursuant to compensation rates of $219/$164. Additionally, $3,752.76 in medical benefits were paid.

Appellant was seen by several physicians prior to seeing the company doctor, John Wilson, in April 1999. After a series of treatments and attempts to return to work in June 2000, appellant had an MRI, which revealed lumbar disc bulges at L2-3 and L4-5. Dr. Wilson read the report as appellant having degenerative-disc disease with bulging discs. On October 24, 2001, Dr. Wilson wrote in a letter that the bulging disc at L4-5 warranted a permanent-impairment rating at five percent to the body as a whole. Dr. Wilson further advised that the five-percent rating was in accordance with AMA Guides to the Evaluation of Permanent Impairment, 4th Ed.

Dr. Wilson was deposed on April 23, 2002, at which time his testimony was equivocal. He testified that he could not state for sure when the bulging disc occurred, but that even if it were a preexisting condition, the major cause of the impairment rating was appellant's now symptomatic disc, not merely the presence of a bulging disc. On the other hand, he also testified that the only objective evidence of the current symptoms was the MRI from June 30, 2000, and the muscle spasms that had subsided.

On June 26, 2002, a hearing was held before an ALJ. Appellant contended that he was entitled to an award of additional temporary-total disability and benefits for a five-percent permanent-physical-impairment rating to the body as a whole as assigned by Dr. Wilson. Appellees denied liability for any additional benefits. Appellant was the only witness at the hearing. He denied injuring his neck or low back in an earlier motor vehicle accident in 1997, although he admitted being treated by Dr. Dodson for a knee injury sustained in that 1997 accident.

In a decision dated August 6, 2002, the ALJ found that appellant was not entitled to awards of additional temporary-total-disability benefits or medical benefits. However, the ALJ did find that appellant was entitled to benefits for a five-percent permanent-physical-impairment rating to the body as a whole. The ALJ noted in his opinion that, as to any previous injury, and specifically as to the 1997 accident, there is no treatment or reference to symptoms located anywhere in the medical records from 1997 until the current injury. The ALJ also noted that appellant's supervisor acknowledged that he was a good employee who did not miss much time from work once he was released to return to work in 1997.

From that finding, appellees appealed to the Commission. The Commission reversed the decision of the ALJ with respect to the finding that appellant was entitled to benefits for a five-percent permanent-physical-impairment rating to the body as a whole, pointing out that appellant did not prove that his injury was the major cause of the permanent impairment for which benefits were awarded.

Appellant claims that the Commission's opinion, which reversed the ALJ on the issue of appellant's five-percent anatomical-impairment rating, is not supported by substantial evidence. The Commission found that appellant failed to prove that his admittedly compensable injury in 1999 was the major cause of the permanent impairment. Because of the equivocal nature of Dr. Wilson's deposition testimony, the Commission concluded that the symptomatic disc of unknown origin was not sufficient evidence of the major cause of the impairment.

Appellees contend that appellant's testimony that he had never before sustained a lumbar injury or received medical care for a lumbar problem prior to the March 17, 1999 fall was clearly false. They claim there was medical evidence that two years prior appellant sustained lumbar and cervical injuries in the 1997 motor vehicle accident. Although appellant missed several weeks' work following the accident, he then returned and resumed his normal duties until his fall in 1999. Appellees note that appellant failed to inform either Dr. Wilson or Dr. Moore, both treating physicians after the 1999 injury, of the 1997 motor vehicle accident or resulting injuries.

Appellees note that Dr. Wilson equivocated in his deposition testimony and agreed that the bulging disc could have been caused by the 1997 accident, or even after the 1999 compensable injury. He agreed that all that was really known was that as of June 30, 2000, the date of appellant's MRI, appellant had disc bulges at L2-3 and L4-5.

It is asserted by the appellees that the only evidence that the 1999 accident caused injury to appellant's L4-5 disc is appellant's testimony that he has lumbar pain. They claim that even if this testimony is credible, it falls short of supporting a finding of a compensable disc injuryor permanent impairment. Appellees argue that the medical evidence at most shows that appellant has degenerative joint disease that could be causing his back pain. Even if the pain is caused by the bulging disc, in order to be entitled to permanent-physical-impairment benefits, appellant is required to demonstrate that either the disc bulge was caused by the 1999 fall or that some objectively measurable change occurred in the disc as a result of that fall.

In reviewing decisions from the Workers' Compensation Commission, the appellate court views the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission's findings, and we affirm if the decision is supported by substantial evidence. Swearengin v. Evergreen Lawns, __ Ark. App. __, __ S.W.3d __ (Feb. 11, 2004). Substantial evidence exists if reasonable minds could reach the same conclusion. Id. 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. Id.

In workers' compensation law, an employer takes the employee as he finds him, and employment circumstances that aggravate preexisting conditions are compensable. Williams v. L & W Janitorial, Inc., __ Ark. App. __, __ S.W.3d __ (Feb. 4, 2004). An aggravation of a preexisting noncompensable condition by a compensable injury is, itself, compensable. Id. An aggravation is a new injury resulting from an independent incident. Id. An aggravation, being a new injury with an independent cause, must meet the definition of a compensable injury in order to establish compensability for the aggravation. Id.

"Permanent benefits shall be awarded only upon a determination that the compensable injury was the major cause of the disability or impairment." Ark. Code Ann. § 11-9-102(4)(F)(ii)(a) (Repl. 2002). "If any compensable injury combines with a preexisting disease or condition . . . 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." Ark. Code Ann. § 11-9-102(4)(F)(ii)(b) (Repl. 2002). "Major cause" is defined as "more than fifty percent . . . of the cause." Ark. Code Ann. § 11-9-102(14)(A) (Repl. 2002). Here, the Commission examined all of the testimony and medical evidence and concluded that Dr. Wilson could not definitively state that the 1999 injury was the major cause of appellant's impairment.

We affirm based on our requirement to strictly construe the statutes and our recognition that it is the Commission's function to determine the credibility of witnesses and the weight to be given their testimony. Williams v. L & W Janitorial, Inc., supra. Moreover, the Commission has the authority to accept or reject medical opinion and the authority to determine its medical soundness and probative force. Hill v. Baptist Med. Ctr., 74 Ark. App. 250, 57 S.W.3d 735 (2001). The Commission has the duty to use its expertise in translating evidence of medical experts into findings of fact. Id.

Affirmed.

Stroud, C.J., and Bird, J., agree.