Linda Parson v. Arkansas Methodist Hospital and Arkansas Property & Casualty Guaranty Fund
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ARKANSAS COURT OF APPEALS
DIVISIONS I and IV
No. CA 07-1185
LINDA PARSON
Opinion Delivered
SEPTEMBER 24, 2008
APPELLANT
APPEAL FROM THE WORKERS’
COMPENSATION COMMISSION,
[NO. F501700]
V.
ARKANSAS METHODIST HOSPITAL
and ARKANSAS PROPERTY &
CASUALTY GUARANTY FUND
APPELLEES
AFFIRMED
JOHN B. ROBBINS, Judge
1.
WORKERS’ COMPENSATION – CLOSED-HEAD INJURY CLAIM DENIED – FINDINGS WERE
NOT SUFFICIENT TO SUPPORT A COMPENSABLE INJURY TO APPELLANT’S BRAIN .– The
Workers’ Compensation Commission committed no error in denying appellant’s
claim for a compensable closed-head injury; neuropsychological testing, without
more, is not adequate to establish an organic brain injury by “objective findings”
within the meaning of Ark. Code Ann. § 11-9-102(4)(D); in the present case, the
facial hematoma and contusions were undisputedly objective findings, but they only
supported the injury to appellant’s head for which the appellees had already paid
compensation; these findings were not sufficient to support a compensable injury to
appellant’s brain.
2.
WORKERS’
– SUBSTANTIAL BASIS FOR COMMISSION’S DENIAL OF
COMPENSABILITY – WENTZ V. SERVICE MASTER OVERRULED.– Although appellant
correctly asserted that she was also diagnosed with a concussion after the accident,
such a diagnosis without more did not constitute an objective finding; there was
nothing about appellant’s diagnosis of a concussion to demonstrate that the diagnosis
was based on anything other than subjective criteria; the evidence suggesting that
appellant sustained a closed-head injury was found in the neuropsychological testing
and appellant’s own testimony regarding her symptoms, but because there was no
other objective evidence establishing a brain injury, there was a substantial basis for
COMPENSATION
the Commission’s denial of compensability; because the appellate court’s decision
was contrary to the holding in Wentz v. Service Master, Wentz was overruled.
3.
WORKERS’ COMPENSATION – PERMANENT IMPAIRMENT WAS NOT ESTABLISHED –
WAGE-LOSS DISABILITY COULD NOT BE AWARDED .– The Commission did not err in
failing to award benefits for a permanent anatomical impairment and permanent
wage-loss disability; even had appellant proved a compensable brain injury, which
she did not, the Commission correctly ruled that she failed to support any permanent
impairment with objective findings required by Ark. Code Ann. § 11-9-704(c)(1)(B);
and wage-loss disability cannot be awarded without first establishing the existence
of a permanent impairment.
4.
WORKERS’ COMPENSATION – MEDICAL EVIDENCE SUPPORTED BY OBJECTIVE FINDINGS
– MEDICAL OPINIONS DISTINGUISHED.– Compensation must be denied if the claimant
fails to prove any of the elements required for establishing a compensable injury;
because appellant failed to establish a compensable injury with medical evidence
supported by objective findings, it was immaterial whether her neurologist’s opinions
were stated within a reasonable degree of medical certainty; in Wentz, the appellate
court did state in its opinion that objective findings are also defined as medical
opinions stated with a reasonable degree of medical certainty; however, these are
clearly two distinct considerations in workers’ compensation law, and the court’s
statement in Wentz to the contrary was erroneous.
Appeal from the Workers’ Compensation Commission; affirmed.
Orr Willhite, PLC by: M. Scott Willhite, for appellant.
Mark Alan Peoples, PLC, for appellees.
This is the second appeal in this workers’ compensation case. In the first appeal, we
reversed and remanded the Commission’s decision denying compensability for a mental
injury, and instructed the Commission to address appellant Linda Parson’s claim that she
suffered a closed-head physical injury. See Parson v. Arkansas Methodist Hospital, CA06-1223
(June 20, 2007). In that opinion, we advised the Commission to analyze the claim under
Wentz v. Service Master, 75 Ark. App. 296, 57 S.W.3d 753 (2001), and Watson v. Tayco, Inc.,
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79 Ark. App. 250, 86 S.W.3d 18 (2002). On remand, the Commission found that
Ms. Parson failed to establish a compensable physical injury to her brain, and Ms. Parson
again appeals. In this appeal, Ms. Parson argues that the Commission erred in failing to find
that she sustained a physical injury to her brain, and erred in failing to award related medical
benefits as well as benefits for a permanent impairment and permanent partial wage-loss
disability. We affirm.
The standard of review for appeals from the Workers’ Compensation Commission is
well-settled. On appeal, this court will view the evidence in the light most favorable to the
Commission’s decision and affirm when that decision is supported by substantial evidence.
Crudup v. Regal Ware, Inc., 341 Ark. 804, 20 S.W.3d 900 (2000). Where the Commission
denies benefits because the claimant has failed to meet his burden of proof, the substantialevidence standard of review requires us to affirm if the Commission’s decision displays a
substantial basis for the denial of relief. Id. A substantial basis exists if fair-minded persons
could reach the same conclusion when considering the same facts. Id.
As we recited in our initial opinion, appellant Linda Parson sustained an admittedly
compensable injury while working as a nurse for appellee Arkansas Methodist Hospital on
October 29, 2001. On that date, she fell and hit her head on a desk, resulting in bruising and
black eyes. The appellee provided medical treatment for Ms. Parson’s injuries through 2004,
but subsequently controverted her claim that she suffered a brain injury and was entitled to
permanent disability benefits.
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Ms. Parson testified that she continues to suffer from memory loss and attention-span
problems as a result of the accident. She also stated that she has experienced near-syncope
episodes and that she has headaches every day, which she did not have prior to October 29,
2001. Ms. Parson indicated that she can no longer perform her duties as a nurse due to her
memory problems.
Dr. Demetrius Spanos, a neurologist, has been treating Ms. Parson since February
2002. Dr. Spanos assigned a 35% permanent impairment rating based on Ms. Parson’s
cognitive decline, and an additional 35% for her headaches. Dr. Spanos explained that the
cognitive decline was measured by two neuropsychological examinations conducted by
Dr. Dan Johnson in 2002 and 2004. Dr. Spanos testified that “each test is three and one half
hours long and I don’t understand how they do it because I don’t perform them, but there
is a validity portion to make sure the patient is not malingering or trying to fake symptoms.”
The tests measure such things as verbal skills, memory skills, and the intelligence quotient,
which are evaluated through a question-and-answer session. Dr. Spanos stated that these
neuropsychological tests “are so lengthy and so convoluted in the way they are done that I
accept them as objective.” Dr. Spanos conceded that “obviously [Dr. Johnson] can be
fooled” but thought it would be hard for a patient to fool him.
An MRI of the brain was performed subsequent to Ms. Parson’s accident, and
Dr. Spanos acknowledged that the MRI results did not show an objective sign of a traumatic
injury.
He further testified that an EEG test revealed no abnormalities.
Dr. Spanos explained:
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However,
Just because there was no abnormal result shown on the MRI does not mean there
was no injury to the brain or nervous system. Closed head injuries often show normal
results . . . . MRI’s and EEG’s can be normal and yet the patient has symptoms from
the head injury. There is some semblance of taking the patient at face value.
Arkansas Code Annotated section 11-9-102(4)(D) (Supp. 2007) provides, “A
compensable injury must be established by medical evidence supported by objective findings
as defined in subdivision (16) of this section.” Objective findings are defined as “those
findings which cannot come under the voluntary control of the patient.” Ark. Code Ann.
§ 11-9-102(16)(A)(i) (Supp. 2007). The Commission found that Ms. Parson failed to prove
compensability for a brain injury because there were no objective findings to support the
injury as required by statute. Consistent with our directive on remand, the Commission
analyzed this case under Wentz, supra, and Watson, supra, and noted our holding in Watson
that neuropsychological testing standing alone is not sufficient evidence of a brain injury;
there must be some other objective evidence of such an injury.
Because the two
neuropsychological tests performed by Dr. Johnson do not constitute objective findings
under our Watson holding, and there were no other objective findings to support the
existence of a brain injury, the Commission denied compensability.
The Commission’s decision further denied Ms. Parson’s claim for any permanent
anatomical impairment, finding that she failed to satisfy the provisions of Ark. Code Ann.
§ 11-9-704(c)(1)(B) (Repl. 2002), which provides, “Any determination of the existence or
extent of physical impairment shall be supported by objective and measurable physical or
mental findings.” Because Ms. Parson failed to prove that she sustained any compensable
permanent anatomical impairment, the Commission accordingly found that she was not
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entitled to any wage-loss disability. See Wal-Mart Stores, Inc. v. Connell, 340 Ark. 475, 10
S.W.3d 882 (2000).
On appeal, Ms. Parson argues that the Commission erred in finding that she failed to
establish a compensable brain injury. Ms. Parson submits that, contrary to the Commission’s
decision, there were objective findings to support her claim. She notes that the original
emergency-room report documented a soft-tissue injury to the head and knees, resulting in
a hematoma to the left forehead and facial contusions. These are objective findings because
they cannot come under the voluntary control of the patient. Ms. Parson further relies on
the medical diagnosis that she suffered a concussion as an objective finding to support an
injury. She asserts that this case is more like Wentz, supra, than Watson, supra. In Wentz, we
held that there were objective findings to support a compensable brain injury beyond the
results of the neuropsychological testing, and indicated that the diagnosis of a concussion was
among those objective findings. In the present case, Ms. Parson argues that reasonable minds
could only conclude that she suffered a compensable brain injury in light of the objective
findings and results of the neuropsychological tests.
[1] [2] We hold that the Commission committed no error in denying appellant’s claim
for a compensable closed-head injury. Neuropsychological testing, without more, is not
adequate to establish an organic brain injury by “objective findings” within the meaning of
Ark. Code Ann. § 11-9-102(4)(D). Rippe v. Delbert Hooten Logging, 100 Ark. App. 227,
S.W.3d
(2007) (citing Watson, supra). In the present case, the facial hematoma (swelling
containing blood) and contusions (bruising) are undisputedly objective findings, but they
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only support the injury to appellant’s head for which the appellees have already paid
compensation.
These findings are not sufficient to support a compensable injury to
appellant’s brain. Ms. Parson correctly asserts that she was also diagnosed with a concussion
after the accident, but such a diagnosis without more does not constitute an objective
finding. A concussion is “a jarring injury of the brain resulting in disturbance of cerebral
function.” Webster’s Ninth New Collegiate Dictionary 273 (1991). There was nothing about
Ms. Parson’s diagnosis of a concussion to demonstrate that the diagnosis was based on
anything other than subjective criteria. The evidence suggesting that Ms. Parson sustained
a closed-head injury was found in the neuropsychological testing and appellant’s own
testimony regarding her symptoms, but because there was no other objective evidence
establishing a brain injury, we hold that there was a substantial basis for the Commission’s
denial of compensability. Because our decision is contrary to the holding in Wentz, Wentz
is overruled.
[3] Ms. Parson also argues on appeal that the Commission erred in failing to award
benefits for a permanent anatomical impairment and permanent wage-loss disability.
However, even had Ms. Parson proved a compensable brain injury, which she did not, the
Commission correctly ruled that she failed to support any permanent impairment with
objective findings as required by Ark. Code Ann. § 11-9-704(c)(1)(B). And wage-loss
disability cannot be awarded without first establishing the existence of a permanent
impairment. See Wal-Mart Stores, Inc. v. Connell, supra.
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[4] Finally, Ms. Parson urges this court to credit Dr. Spanos’s opinions addressing
compensability and permanent impairment because they were stated within a reasonable
degree of medical certainty, which is a requirement pursuant to Ark. Code Ann. § 11-9102(16)(B) (Supp. 2007). However, compensation must be denied if the claimant fails to
prove any of the elements required for establishing a compensable injury. See Rippe, supra.
Because Ms. Parson failed to establish a compensable injury with medical evidence supported
by objective findings, it is immaterial whether Dr. Spanos’s opinions were stated within a
reasonable degree of medical certainty. As appellant notes, in Wentz, supra, we did state in
our opinion that objective findings are also defined as medical opinions stated with
a reasonable degree of medical certainty.
However, these are clearly two distinct
considerations in workers’ compensation law, and our statement in Wentz to the contrary
was erroneous.
As we indicated under similar facts in Rippe, supra, we recognize appellant’s dilemma
in attempting to prove objectively a condition that is undetectable with objective tests.
However, Ark. Code Ann. § 11-9-102(4)(D) requires that a compensable injury be
established by medical evidence supported by objective findings, and we see no way for this
dilemma to be addressed other than by legislative action.
Affirmed.
GLADWIN , BIRD, GLOVER, VAUGHT and BAKER, JJ., agree.
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