Excelsior Hotel and Twin City Fire Insurance Company v. Larry Squires

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION III

EXCELSIOR HOTEL and TWIN CITY FIRE INSURANCE COMPANY

APPELLANTS

V.

LARRY SQUIRES

APPELLEE

CA05-257

September 28, 2005

APPEAL FROM THE ARKANSAS WORKERS' COMPENSATION COMMISSION

[NO. E803951]

AFFIRMED

Josephine Linker Hart, Judge

Appellants, Excelsior Hotel and Twin City Fire Insurance Company, appeal from the Arkansas Workers' Compensation Commission's finding that appellee, Larry Squires, sustained a permanent anatomical impairment of thirty percent to the body as a whole. Appellants argue on appeal that there was not substantial evidence that appellee developed a permanent lung condition as a result of a work-related injury. We affirm.

Appellee fractured ribs on his left side when he fell from a ladder and landed on a five-gallon bucket. The parties stipulated that on March 25, 1998, during his employment with appellant Excelsior Hotel, appellee sustained compensable injuries to his left shoulder and ribs. The parties, however, litigated whether appellee sustained a compensable lung injury.

According to the medical records, appellee was seen on March 30, 1998, by Dr. Thomas Hart, who reported that appellee was "having congestion and difficulty breathing because of splinting secondary to severe pain." Dr. Hart noted that appellee had "audible congestion in the lungs" and was taking "very short shallow breaths." He further noted "some decreased breath sounds on the left side due to poor inspiratory and expiratory effort." He also observed that the "[r]ight appeared to be pretty clear." In an emergency-room record dated April 20, 1998, it was noted that appellee "still had some inspiratory crackles in his left base." On April 23, 1998, Dr. Jack A. Griebel, Jr., a pulmonologist, noted that a chest x-ray showed a large pleural effusion filling approximately one-third of the left chest. He further observed associated dyspnea. A thoracentesis was performed that day. On May 8, 1998, Dr. Griebel noted that appellee continued to "have some limitation of breathing and shortness of breath...." A radiological-examination report dated May 12, 1998, showed a persistent moderate left pleural effusion and a normal right chest. Records from July 8, 1998, again described a left-sided pleural effusion filling approximately one-third of the left chest, and thoracentesis was recommended.

On May 12, 1999, Dr. Griebel opined that appellee had "[r]eactive airway disease syndrome, asthma secondary to pulmonary contusion syndrome as suffered from fall with multiple rib fractures." In a letter dated January 8, 2001, Dr. Griebel noted that appellee had developed a left pleural effusion that was drained and had suffered extensive left-chest fractures. He further noted that appellee "has continued to manifest significant shortness of breath and had a reactive airway, almost asthma-like, condition since his fall." He opined that appellee "has significant obstructive airway defect abnormalities on his pulmonary function testing, as documented on the values of November 18, 1999, with an FEV1 of 2.13, 53% of predicted." He also thought appellee "has some limitation of his lung capacity secondary to pleural thickening and scarring from the severe rib fractures." He further noted that appellee was asymptomatic prior to the injury and symptomatic after the injury, that appellee had shown no evidence of reversal, and that appellee would have "some problem requiring medication and treatment of this for a prolonged period of time." Based on his pulmonary-function test, Dr. Griebel concluded that, by American Medical Association criteria, appellee had a permanent impairment of thirty percent to the body as a whole. In his deposition testimony, Dr. Griebel stated that appellee's reactive airway disease was secondary to the injury he received and that he was "primarily looking at the reactive airway disease." He further agreed that the impairment rating was the result of the injury appellee sustained.

In challenging the Commission's findings, appellants contend that there was not substantial evidence that appellee developed a permanent lung condition as a result of a work-related incident. To summarize their multiple assertions, they argue that there was no evidence of an injury to the lung caused by the accident; that there was no evidence that appellee's injury was the major cause of his disability; that Dr. Griebel's rating did not comply with the AMA Guides; and that the findings used to obtain that rating were not objective.

A "compensable injury" is an "accidental injury causing internal or external physical harm to the body ... arising out of and in the course of employment...." Ark. Code Ann. § 11-9-102(4)(A)(i) (Supp. 2005). Further, "[p]ermanent 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) (Supp. 2005). And "[i]f 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) (Supp. 2005). "Major cause" is defined as "more than fifty percent ... of the cause." Ark. Code Ann. § 11-9-102(14)(A) (Supp. 2005). Also, a compensable injury must be established by medical evidence supported by objective findings. Ark. Code Ann. § 11-9-102(4)(D) (Supp. 2005). "Objective findings" are "those findings which cannot come under the voluntary control of the patient." Ark. Code Ann. § 11-9-102(16)(A)(i) (Supp. 2005). Further, any determination of the existence or extent of physical impairment must be supported by objective and measurable physical findings. Ark. Code Ann. § 11-9-704(c)(1)(B) (Repl. 2002).

On appeal, we view the evidence in a light most favorable to the Commission's decision, and we uphold that decision if it is supported by substantial evidence. White v. Georgia-Pacific Corp., 339 Ark. 474, 6 S.W.3d 98 (1999). Further, we will not reverse the Commission's decision unless we are convinced that fair-minded persons with the same facts before them could not have reached the conclusions arrived at by the Commission. Id.

We conclude that there was substantial evidence to support the Commission's finding that appellee sustained a permanent anatomical impairment of thirty percent to the body as a whole. There was substantial evidence that appellee's lung condition was a compensable injury and that this injury was the major cause of his permanent disability, as Dr. Griebel stated that the reactive airway disease was secondary to the accident, that he was "primarily" looking at reactive airway disease, that appellee was asymptomatic prior to his injury and symptomatic after his injury, and that appellee had shown no reversal and would require medication and treatment for a prolonged period. Also, substantial evidence supported the Commission's decision that his permanent impairment rating was established by medical evidence supported by objective findings, including the results of appellee's pulmonary-function testing, which, as found by the Commission, was objective. See Emerson Elec. v.Gaston, 75 Ark. App. 232, 58 S.W.3d 848 (2001). While appellants assert that the tests did not comply with AMA Guides, Dr. Griebel stated that he used AMA criteria in assessing appellee's permanent impairment. Consequently, we affirm the Commission's decision.

Affirmed.

Neal and Vaught, JJ., agree.