Calreece Williams v. International Paper Company and Sedgwick Claims Management Services, Inc.

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION I

CALREECE WILLIAMS

APPELLANT

V.

INTERNATIONAL PAPER CO. and

SEDGWICK CLAIMS MANAGEMENT SERVICES, INC.

APPELLEES

CA 05-949

FEBRUARY 22, 2006

APPEAL FROM THE WORKERS'

COMPENSATION COMMISSION

[NO. E118941]

AFFIRMED

John B. Robbins, Judge

Appellant Calreece Williams appeals the Arkansas Workers' Compensation Commission's denial of his claim for an additional percentage of permanent anatomical impairment and for permanent and total disability. In its July 13, 2005 opinion, the Commission awarded appellant (1) fifteen percent permanent physical impairment, which included an earlier five percent rating that had been accepted and paid, and (2) no wage loss disability. Appellant contends that he is entitled to between twenty-one percent and twenty-five percent permanent physical impairment, over and above his earlier five percent rating, and that he is entitled to permanent and total disability benefits with regard to his earning capacity. We disagree with his arguments and affirm.

Appellant was a long-standing employee of appellee International Paper Company at its Camden facility when he was undisputedly hurt in an on-the-job fall in July 1991, which hurt his back and neck.1 He was age forty-three at the time. He underwent a cervical fusion surgery at C5-C6 performed by Dr. Wilbur Giles on October 30, 1991, and after a period of recovery, he returned to work.

Appellant underwent another surgery performed by Dr. Giles on August 9, 1993, with regard to his lumbar spine at L4-L5. He recovered from that surgery and went back to work for appellee. On March 2, 1994, Dr. Giles issued appellant a five-percent permanent partial disability rating regarding appellant's back surgery, which was accepted and paid by appellee.

In an office visit in February 1995, Dr. Giles noted appellant's complaints of paresthesia in his arms, and back and right hip discomfort. In this visit, Dr. Giles opined that appellant suffered from "chronic cervical and lumbar degenerative disc disease status post anterior cervical fusion and lumbar laminectomy." Dr. Giles prescribed long-term use of ibuprofen to treat his inflammatory joint disease. A return visit in February 1996 revealed the same back, hip, and leg pain, and an assessment of the same condition, for which Dr. Giles changed the prescription medication to Voltaren. Again in February 1997, appellant was seen by Dr. Giles for a review of his chronic, intermittently symptomatic, inflammation in his cervical and lumbar discs. Dr. Giles changed his medication and added Elavil to assist with sleep at night. In the February 1997 visit, Dr. Giles stated his opinion that, "He is employable but I suspect that he will always continue to have intermittent episodes of chronic inflammatory states from time to time." Again in April 1997, Dr. Giles opined that appellant was employable but that he should avoid lifting over fifty pounds due to his persistent complaints of chronic back, hip, and leg pain.

In a return visit to Dr. Giles in January 1998, Dr. Giles recommended a repeat MRI of his spine due to progressively more constant pain in the back, hip, and leg and left-arm paresthesia. The February 1998 MRI that followed showed active inflammatory joint disease in multiple levels of his spine, for which Dr. Giles prescribed a short-term steroid dosage, and then a return to use of ibuprofen. A February 1999 return visit showed appellant essentially in the same, but perhaps more controlled, inflammatory condition. Appellant continued to work for appellee, working his way up through the ranks and eventually becoming wood-yard foreman by the time the plant closed on February 9, 2001. Appellant did not work after that date. A June 2001 visit to Dr. Giles revealed a similar set of complaints, although Dr. Giles provided appellant with stronger medication. In July 2001, Dr. Giles reviewed an MRI and suggested that appellant might consider another cervical fusion surgery at C3-C4 and C6-C7.

Appellant was seen by Dr. Wayne Bruffett for a second opinion in October 2001, when appellant was fifty-three years old. Dr. Bruffett agreed that cervical and lumbar surgery might help with the numbness that appellant was suffering, but that it was not likely to help with his chief complaint, which was chronic pain. Dr. Bruffett opined that appellant's current condition was not directly related to his work injury but rather was "consistent with more progressive degenerative change over time." Dr. Bruffett ordered another MRI. In reviewing the MRI results in September 2002, Dr. Bruffett opined that appellant should not undergo another low-back surgery because his lumbar spine was stable with degenerative changes. However, with regard to his cervical spine, Dr. Bruffett saw an area of spinal cord compression and myelomalacia. Though Dr. Bruffett saw that another cervical surgery might be warranted in the future, he wanted to wait and review his status in another year.

In October 2003, appellant was seen by Dr. William Ackerman, a pain specialist, upon Dr. Bruffett's referral. Dr. Ackerman treated appellant for cervical and lumbar spondylosis and post-laminectomy syndrome, giving him steroid injections in addition to strong narcotic prescription medications. By December 2003, Dr. Ackerman opined that appellant wasunable to return to work. In a February 16, 2004 letter to appellant's attorney, Dr. Ackerman said appellant should qualify for a five-percent impairment rating.

In April 2004, appellant sought out an independent medical evaluation from neurologist Dr. Warren D. Long, who gave appellant a twenty-five percent impairment rating for both his neck and back. Dr. Long broke down the fifteen percent rating attributable to his cervical region as follows: ten percent for the cervical surgeries at C4-C5 and C5-C6 added to five percent for the recent defects shown on x-ray in cervical spaces above and below the surgical sites. Dr. Long broke down the remaining ten percent rating attributable to his lumbar region as follows: the five-percent rating given by Dr. Giles attributed to the lumbar surgery at L4-L5 added to five percent for the defects shown at L3-L4 that will need surgery in the future.

Appellant testified at the May 2004 hearing that he was born in 1947, that he graduated high school, that he completed three years of college, and that he then joined the Army, serving for two years. In 1973, he began working for appellee International Paper and stayed there until the plant closed in 2001. He explained working all the way to the top in the wood yard, eventually making it to foreman. He explained that when he got hurt at work in 1991, he made about $12 to $13 per hour, but by the time he was laid off in 2001, he was making over $20 an hour. Appellant recalled having fusion surgery on his neck in 1991 and surgery on his back in 1993, both by Dr. Giles. He said he went back to his normal job duties after healing from each of the surgeries. Appellant remembered getting paid for a five-percent rating to his low back in 1994. He said that he had problems over the years with numbness and pain in his back and neck and emanating into one arm and one leg, but he just took medication and proceeded to work.

Appellant said his symptoms "were getting worse all the time" by the time the plant shut down in 2001. He filed for and received unemployment benefits after being laid off, through the first part of 2002. He said that although he applied for other jobs, no one hired him. He tried a job working for a relative preparing logs for the mill, but he said it was painful for him, so the job only lasted a few days. He said his daily medications caused him to be sometimes nauseated and often sleepy, but he needed sleep medication at night. He complained of neck and back pain and "give away symptoms" in his leg. As to sources of income, appellant said he draws $490 per month in retirement, had been approved for social security disability, and lived with his wife who works at a poultry plant in Arkadelphia. Appellant testified he spends his days watching television shows but he misses being able to hunt and fish. He said he did not think that he could go back to work with his pain and symptoms so much worse than they were in 2001.

On this evidence, the administrative law judge awarded appellant twenty-five percent permanent physical impairment, including the accepted five percent, in addition to thirty percent in wage-loss disability benefits over and above his anatomical rating. The employer appealed, and the Commission reversed the administrative law judge's decision, finding that appellant was entitled to fifteen-percent permanent physical impairment, including the accepted five percent, and that appellant was not entitled to any wage loss and further did not fall within the odd-lot doctrine.2 Appellant appealed this decision to our court.

Appellant argues that the Commission's decision is not supported by substantial evidence because the Commission narrowly applied the American Medical Association's Guides to the Evaluation of Permanent Impairment when it partially rejected Dr. Long's twenty-five percent impairment rating. Appellant also contends that the denial of his wage-loss claim is reversible error because the Commission unfairly dismissed consideration of his claim under the odd-lot doctrine and further erroneously viewed the evidence as failing to establish any wage-loss disability over his impairment rating.

In reviewing a decision of the Workers' Compensation Commission, we view the evidence and all reasonable inferences in the light most favorable to the Commission's findings and affirm if supported by substantial evidence. Arkansas Dep't of Health v. Williams, 43 Ark. App. 169, 863 S.W.2d 583 (1993). Substantial evidence exists "if reasonable minds could have reached the same conclusion." Kuhn v. Majestic Hotel, 324 Ark. 21, 23, 918 S.W.2d 158, 159 (1996)(quoting Plante v. Tyson Foods, Inc., 319 Ark. 126, 127-28, 890 S.W.2d 253, 253-54 (1994)). Matters of credibility are exclusively within the Commission's domain. Id. Where there are contradictions in the evidence, the Commission is allowed to reconcile the evidence, and this authority extends to medical testimony. Foxx v. American Transp., 54 Ark. App. 115, 924 S.W.2d 814 (1996). The Commission is entitled to review the basis for a doctor's opinion in deciding the weight of the opinion; there is no requirement that medical testimony be expressly or solely based on objective findings, only that the record contain supporting objective findings. Reeder v. Rheem Mfg. Co., 38 Ark. App. 248, 832 S.W.2d 505 (1992).

On appeal, our court is required to resolve all doubts in favor of the Commission's findings. Bale Chevrolet Company v. Armstrong, 241 Ark. 705, 409 S.W.2d 328 (1966). Even if we determined that the Commission reached the wrong result in a case, we are not at liberty to upset its findings where there is substantial evidence in the record to support it. Potlatch Forests, Inc. v. Smith, 237 Ark. 468, 374 S.W.2d 166 (1964).

We now consider the points raised on appeal. With regard to the impairment rating, the Commission set out that it was considering the claim under the law in existence prior to Act 796 of 1993, and it recited the requirements for establishing a permanent physical impairment, which must include objective and measurable physical findings. Ark. Code Ann. § 11-9-704(c)(1). Permanent impairment, which is usually a medical condition, is any permanent functional or anatomical loss remaining after the healing period has been reached. Ouachita Marine v. Morrison, 246 Ark. 882, 440 S.W.2d 216 (1969). An injured employee is entitled to the payment of compensation for the permanent functional or anatomical loss of use of the body as a whole whether his earning capacity is diminished or not. Id. The Commission may assess its own impairment rating rather than rely solely on its determination of the validity of ratings assigned by physicians. Avaya v. Bryant, 82 Ark. App. 273, 105 S.W.3d 811 (2003).

In this instance, the Commission made its own assessment. The Commission was in agreement with Dr. Long's assessment of appellant's cervical spine with regard to the ten-percent rating attributable to the 1991 surgery at C4-C5 and C5-C6. However, it rejected the additional five percent in the cervical region related to recent defects shown on x-ray studies. The Commission found that Dr. Bruffett's contemporary opinion as a treating physician for more than two years was entitled to more weight than Dr. Long's as a consulting physician. In January 2004, Dr. Bruffett attributed the current defects and symptoms not to his work injury in 1991 but to chronic and progressive degenerative change. The Commission also found it noteworthy that Dr. Ackerman, the pain specialist, opined that appellant suffered from significant degenerative disc disease. The Commission concluded the cervical assessment with the statement that the preponderance of the evidence did not support the additional five-percent rating given by Dr. Long because it was related to portions of his spine not injured at work.

As to the lumbar region, the Commission found that Dr. Giles's original five-percent impairment rating assessed after healing from the 1993 lumbar surgery was valid, in line with Dr. Long's assignment concerning the 1993 surgery. The Commission rejected Dr. Long's addition of another five-percent impairment because the basis was stated to be for a surgery yet to be performed in the future. These findings resulted in a net impairment rating of fifteen percent that included the five percent already accepted by the employer.

Appellant contends that the Commission unfairly applied the AMA Guides strictly against him to reduce Dr. Long's well-reasoned assessment. He adds that he is entitled to at least the twenty-one percent rating that the dissenting Commissioner believed was appropriate. We disagree. While the Commission recognized that it could consider other things than the medical evidence in arriving at its decision on the extent of impairment, citing to Jordan v. General Dynamics, 46 Ark. App. 188, 878 S.W.2d 411 (1994), it also said that it could not consider pain in that assessment. The Commission was correct in that statement. There is a distinction between anatomical impairment and a disability. See Foxx v. Amer. Transp., supra. While we would not hold that non-medical proof is wholly irrelevant to the issue of anatomical impairment, an anatomical impairment rating is dependent upon objective and measurable findings. Id.

As to the determination of the degree of impairment, the Commission was entitled to weigh the medical evidence, determine its probative force, and translate it into findings. The Commission's decision to award fifteen-percent permanent anatomical impairment to appellant, and to not award ten percent for defects unrelated to his work injury and for surgery not yet performed, is supported substantially in the record. We affirm this point.

Appellant's other contention on appeal is that the Commission's decision not to award him permanent and total disability is not supported by substantial evidence. He asserts that the Commission erred as a matter of law in stating that he did not qualify for consideration under the odd-lot doctrine, and further that it erroneously did not grant him any wage loss based upon his present condition. We disagree.

In making its decision, the Commission recognized that wage loss was the degree to which appellant's earning capacity was impaired by his work injury. It recognized that this query included consideration of the medical evidence, his age, his education, his work experience, and any other matters that might affect his future earning capacity, including the degree of pain suffered by appellant. It also stated that the odd-lot doctrine was a proper consideration, but that "it is agreed in this case that the extent of claimant's disability does not place him within the odd-lot doctrine." The Commission stated that the evidence clearly showed that appellant was capable of returning to work despite his work injury and the consequences therefrom, noting that he was able to work at appellee's plant until it closed in 2001. The Commission found that appellant was reasonably intelligent, a high school graduate with three years of college hours, a military veteran, a person who rose through the ranks at appellee's plant, and a man several years from retirement when his claim was heard at the age of fifty-seven. The Commission noted that at the time of his injury in 1991, appellant was making around $12 to $13 per hour, whereas when the plant closed he was making approximately $20 per hour. Applying the wage-loss statute at issue, the Commission found the relevant figure to be his earnings at the time of his work injury in 1991, and appellant had not presented any evidence that he sought work opportunities in that pay range. The Commission recited appellant's testimony that but-for the plant closing, he would have continued to work until retirement. Further, it noted that the medical records showed only normal residual symptoms from a relatively stable work injury, that were subject to intermittent flare-ups. On this evidence, it found that appellant did not prove by a preponderance of the evidence that he suffered a decrease in wage-earning capacity from the wages he earned at the time of his injury.

Appellant contends that the Commission erred in not finding him to have established a prima facie case of being in the odd-lot category. He primarily takes issue with the Commission's statement that it was "agreed" that he did not fit within the odd-lot category, stating that he certainly never "agreed" that he did not qualify under the odd-lot doctrine. Appellant's argument is not persuasive.

While the Commission stated that it was "agreed" that appellant did not fall within the odd-lot category, the context within which that statement was taken must be considered. The word "agreed" was embedded in the discussion of his entitlement to wage-loss disability benefits, and it is apparent that the Commission was stating that among all the Commissioners and the administrative law judge, none were persuaded that appellant presented a prima facie case of falling within the category. Therefore, we disagree that the Commission erred as a matter of law. We further hold that the Commission's finding that appellant did not present a prima facie case of odd-lot is supported by substantial evidence. The issue of a prima facie showing is a question of law, but it requires application of the facts as found by the Commission to the law. See Ellison v. Therma Tru, 71 Ark. App. 410, 30 S.W.3d 769 (2000).

Moving to the factual finding that appellant was not entitled permanent and total disability benefits, we also affirm. This issue necessarily revolved around a myriad of factors and the credibility of the testimony. Thus, we cannot say that the Commission's decision is not supported by substantial evidence. We affirm this point as well.

Affirmed.

Gladwin and Crabtree, JJ., agree.

1 His claim is controlled by the worker's compensation law prior to the enactment of Act 796 of 1993, a fact acknowledged by the Commission.

2 One Commissioner dissented, asserting that appellant was entitled to twenty-one percent in permanent physical impairment, and asserting that the thirty percent wage-loss award should be affirmed.