Racquel Henderson v. Riverside Furniture

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March 3, 2004







Karen R. Baker, Judge

Appellant, Racquel Henderson, appeals from a decision by the Workers' Compensation Commission reversing the Administrative Law Judge's (ALJ) award of eleven percent permanent partial disability and denying benefits. Appellant has two arguments on appeal. First, she argues that the Commission erred in misapplying the law to the facts in this case. Second, she argues that there is not substantial evidence in the record to support the Commission's decision. We affirm.

It is undisputed that on October 27, 2000, Ms. Henderson sustained a compensable injury to her right leg below her knee when a table top fell hitting the back of her leg. Following the injury, appellee paid all appropriate temporary total disability and medical benefits. The parties stipulated that appellant developed reflex sympathetic dystrophy ("RSD")1 following the injury. On the day of the accident, appellant saw Dr. Holder. He put a splint on her leg. A bone scan performed in November showed the possibility of RSD, and Dr. Holder's records indicate that at that time he diagnosed her with the condition. She returned to work full time, and was provided alternate work opportunities such as sitting in a chair and bagging hardware. Appellant continued to complain of pain and swelling and trouble when walking. Dr. Holder referred appellant to Dr. Swicegood, who treated appellant with six sympathetic blocks in her back. Dr. Holder and Dr. Swicegood both noted in their reports that appellant had a tremor in her right lower leg, which would cease with distraction. Dr. Swicegood stated that he could not even rule out that the tremor was not "completely factitious."

On March 14, 2002, a year after Dr. Swicegood treated appellant, she saw Dr. Bradley Short, a specialist in rehabilitative medicine. Dr. Short reported that her symptoms were allodynia (a painful sensation), hypersensation, and a limp, all of which are within the voluntary control of the patient. Dr. Short also reported a subtle atrophic change in her right foot and leg, such as less hair and skin that appeared more shiny. Dr. Short stated that in his opinion appellant suffered from RSD at the time he examined her. He further stated, however, that "because [appellant] came to [him] with that diagnosis, [he] rated her for that condition, although she [did] not meet the criteria for that condition" according to the Guidelines. Thus, he conceded that there was "no basis for a diagnosis of [RSD]" in this case. Dr. Gary Moffitt conducted an independent evaluation of appellant on May 4, 2002. He noted that appellant continued to complain of pain in the right leg that extended up to the right hip. Dr. Moffitt's physical examination of appellant revealed no swelling, discoloration, or abnormality of the right extremity. He noted that her tremor "completely goes away" when distracted. He also noted that her right and left calves measured the same, and there was minimal difference in the temperatures of her right and left feet. Dr. Moffitt noted that a whole body bone scan performed on appellant back in November 9, 2000, suggested the possibility of RSD, and although he was unable to find it in the record, a triple phase bone scan performed fifteen days after the whole body scan indicated "probable" improvement of any RSD symptoms when compared to the November 9 bone scan. However, Dr. Moffitt recognized in his letter that there was a significant amount of controversy regarding the value of bone scans in diagnosing RSD in the medical community. In conclusion, Dr. Moffitt stated that in his opinion, in May 2002, appellant did not meet the criteria for RSD "based on the AMA Guides to the Evaluation of Permanent Impairment."

Following a hearing before the ALJ, the ALJ determined that appellant had met her burden of proving entitlement to permanent disability benefits for both physical impairment and actual "disability" or loss of wage earning capacity. The Commission reversed the ALJ's decision and denied permanent disability benefits for physical impairment and wage loss. This appeal followed. When reviewing a decision of the Arkansas 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 that decision if it is supported by substantial evidence. Clark v. Peabody Testing Serv., 265 Ark. 489, 579 S.W.2d 360 (1979). Substantial evidence is that which a reasonable mind might accept as adequate to support a conclusion. Crossett Sch. Dist. v. Fulton, 65 Ark. App. 63, 984 S.W.2d 833 (1999). The issue is not whether this court might have reached a different result from the Commission. Malone v. Texarkana Pub. Schs., 333 Ark. 343, 969 S.W.2d 644 (1998). If reasonable minds could reach the result found by the Commission, we must affirm the decision. Bradley v. Alumax, 50 Ark. App. 13, 899 S.W.2d 850 (1995).

Arkansas Code Annotated ยง 11-9-704(c)(1)(B) (Repl. 1997) states that, "any determination of the existence or extent of physical impairment shall be supported by objective and measurable physical or mental findings." Furthermore, section 11-9-102(16) defines objective findings as, "those findings which cannot come within the voluntary control of the patient." The wage-loss factor is the extent to which a compensable injury has affected the claimant's ability to earn a livelihood. Sapp v. Phelphs Trucking, Inc., 64 Ark. App. 221, 984 S.W.2d 817 (1998). To be entitled to any wage-loss disability benefit in excess of permanent physical impairment, a claimant must first prove, by a preponderance of the evidence, that she sustained permanent physical impairment as a result of a compensable injury. Smith v. Gerber Prods., 54 Ark. App. 57, 922 S.W.2d 365 (1996).

Considering Dr. Moffitt's letter and Dr. Short's deposition, we cannot hold that reasonable minds could not reach the same result as the Commission. In Dr. Moffitt's letter of May 4, 2002, he reported that a physical exam of appellant showed no abnormalities of the lower right extremity. The tremor of the right lower extremity, when distracted, "completely goes away." Dr. Moffitt did not agree with the previous diagnosis of RSD. He found in the record a bone scan, from approximately a year and a half earlier, which only provided that there was a possibility of RSD. The other bone scan that was performed fifteen days after the first bone scan indicated probable improvement of any RSD symptoms. However, in conclusion, Dr. Moffitt opined that appellant did not meet the criteria for RSD "based on the AMA Guides to the Evaluation of Permanent Impairment" in May 2002. Moreover, Dr. Short's deposition revealed that after examining appellant, he made findings of allodynia and hypersensation, both of which were within the voluntary control of the patient. Although Dr. Short noted some subtle symptoms in appellant such as a limp, a difference in temperature in her feet, less hair on her right foot, and skin that appeared more shiny on the right side, and a .75 centimeter difference in her calf sizes, Dr. Short nonetheless concluded that, "there [wa]s no basis for a diagnosis of [RSD]." Dr. Short concluded that although, in his opinion, appellant suffered from the condition, according to the guidelines, appellant did not meet the criteria for RSD. While we agree there was conflicting evidence before the Commission in this case, it is well-settled that the Commission has the duty of weighing medical evidence as it does any other evidence, and the resolution of any conflicts in the medical evidence is a question of fact for the Commission. See Bartlett v. Mead Containerboard, 47 Ark. App. 181, 888 S.W.2d 314 (1994). The Commission is not required to believe the testimony of any witness and may accept and translate into findings of fact only those portions of testimony it deems worthy of belief. Tucker v. Roberts-McNutt, Inc., 342 Ark. 511, 29 S.W.3d 706 (2000). Moreover, the Commission's resolution of the medical evidence has the force and effect of a jury verdict. Johnson v. Democrat Printing & Lithograph, 57 Ark. App. 274, 944 S.W.2d 138 (1997). Based on the evidence before the Commission, there was substantial evidence to support the Commission's denial of permanent partial disability.


Pittman and Gladwin, JJ., agree.

1 RSD is more recently referred to in the medical community as complex regional pain syndrome, "CRPS."