Terry Potocki v. St. Edward Mercy Medical Center

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION II

CA04-539

JANUARY 26, 2005

TERRY POTOCKI

APPELLANT V. AN APPEAL FROM THE ARKANSAS

WORKERS' COMPENSATION

COMMISSION [F004149]

ST. EDWARD MERCY

MEDICAL CENTER

APPELLEE

AFFIRMED ON DIRECT APPEAL; AFFIRMED

ON CROSS-APPEAL

Olly Neal, Judge

This appeal is brought from a decision of the Worker's Compensation Commission (Commission) that appellant Terry Potocki proved she developed reflex sympathetic dystrophy (RSD) and was entitled to a twenty-three percent anatomical impairment rating. We affirm.

Appellant worked as a nurse's aide for appellee, St. Edward Mercy Medical Center. On April 5, 2000, she sustained a compensable calcaneal fracture to her right ankle. She was initially treated by Dr. Joel R. Lane of Cooper Clinic Department of Orthopedics. In October of 2000, Dr. John Swicegood noted that appellant's bone scan results indicated significant blood-flow loss in appellant's right ankle and foot, consistent with the symptoms of RSD. Dr. Swicegood's impression was "RSD of the right foot" and "Complex regional pain syndrome, type I." Appellant thereafter sought additional benefits, claiming entitlement to permanent-partial disability and wage-loss disability. St. Edward Mercy Medical Center controverted appellant's entitlement to such benefits. The Administrative Law Judge (ALJ) determined that appellant was so entitled, and the Commission affirmed as modified the ALJ's decision. This appeal and cross-appeal followed.

In reviewing a decision of the Workers' Compensation Commission, this court views the evidence and all reasonable inferences in the light most favorable to the findings of the Commission.  Magnet Cove Sch. Dist. v. Barnett, 81 Ark. App. 11, 97 S.W.3d 909 (2003). These findings will be affirmed if supported by substantial evidence. Id. Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Id.; Wheeler Constr. Co. v. Armstrong, 73 Ark. App. 146, 41 S.W.3d 822 (2001). If reasonable minds could reach the result found by the Commission, we must affirm the decision. Wal-Mart Stores, Inc. v. Brown, 73 Ark. App. 174, 40 S.W.3d 835 (2001). In making our review, we recognize that it is the function of the Commission to determine the credibility of witnesses and the weight to be given their testimony. Searcy Indus. Laundry, Inc. v. Ferren, 82 Ark. App. 69, 110 S.W.3d 306 (2003).

On appeal, appellant argues that (1) "the Commission's adoption of the AMA Guides to the Evaluation of Permanent Impairment 4th Edition is in violation of Ark. Code Ann. § 11-9-101," and (2) "the Commission's adoption of the AMA Guides 4th Edition violates the Equal Protection Clause of the United States Constitution," subjecting the Guides to strict scrutiny or in the alternative to a rational basis standard. We find nowhere in the record that these arguments were raised to the Commission. Therefore, as neither of these argument were raised below, we do not consider them on appeal. Weber v. Shirpat Corp., ___ Ark. ___, ___ S.W.3d ___ (Dec. 8, 2004); Harding v. City of Texarkana, 62 Ark. App. 137, 970 S.W.2d 303 (1998); Jordan v. Tyson Foods, Inc., 51 Ark. App. 100, 911 S.W.2d 593 (1995).

Appellee cross-appeals, arguing that the decisions of the Commission (1) that appellant sustained RSD as a result of her compensable injury, and (2) that appellant was entitled to a permanent impairment rating are not supported by substantial evidence. We disagree and affirm on both points.

In October 2000, Dr. Swicegood found symptoms consistent with RSD, including edema and coolness in appellant's right foot. The results of a three-phase bone scan showed a decreased blood flow to the right ankle and foot as well as delayed uptake in the soft tissues of the right foot and ankle. Also, Dr. Steven Heim testified that the objective symptoms of RSD include reddening, different temperatures, and shiny skin; he deferred to Dr. Swicegood's diagnosis of RSD and opined that he "would lean in an RSD direction."

Dr. Reginald Rutherford disagreed with Dr. Swicegood's diagnosis of RSD, determining instead that appellant's "neurological examination is clearly abnormal demonstrating diminution of the right ankle jerk, weakness of the toes right foot and blunting of pinprick sensation over the sole and to a lesser extent dorsum of the right foot. The above findings indicate injury to the peripheral nervous system in addition to her calcaneal fracture." Nevertheless, regarding contradictory testimony, it is the exclusive function of the Commission to determine the credibility of witnesses and the weight to be given their testimony. Huffy Serv. First v. Ledbetter, 76 Ark. App. 533, 69 S.W.3d 449 (2002). Therefore, as substantial evidence supports the Commission's determination that appellant suffered from RSD, we affirm this point.

Next, we address appellee's cross-appeal that the Commission's determination to award a permanent impairment rating is not supported by substantial evidence. Any determination of the existence or extent of physical impairment shall be supported by objective and measurable physical or mental findings. Ark. Code Ann. § 11-9-704 (Repl. 2002). In this instance, the Commission determined that:

The record indicates that 23% of Dr. Heim's impairment rating was based on passive range of motion, was based on objective findings, and was not related to the claimant's reflex sympathetic dystrophy. The Court of Appeals has held that "passive" range of motion can constitute an objective medical finding for purposes of assigning permanent impairment. See, Hayes v. Wal-Mart Stores, 71 Ark. App. 207, 29 S.W.3d 751 (2000). In the present matter, Dr. Heim testified that 23% of his rating was based on the physician's manipulation and was not under the voluntary control of the claimant. We find that the claimant's compensable injury was the major cause of her 23% anatomical impairment, pursuant to Ark. Code Ann. § [11-9-]102(4)(F)(ii)(a). The claimant's injury to her right lower extremity was a scheduled injury. A claimant who has sustained a scheduled injury but is less than permanently and totally disabled is not entitled to wage-loss disability. Maxey v. Tyson Foods, Inc., 66 Ark. App. 301, 991 S.W.2d 624 (1999). The instant claimant does not contend that she is entitled to permanent and total disability, and the record does not show that she is entitled to same.

As substantial evidence supports the Commission's finding of twenty-three percent impairment, we affirm.

Affirmed on direct appeal; affirmed on cross-appeal.

Gladwin and Robbins, JJ., agree.