Ronnie Ellis v. J.D. & Billy Hines Trucking, Inc. and Cypress Insurance Company
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ARKANSAS COURT OF APPEALS
DIVISION II
No.
CA08-688
RONNIE ELLIS,
Opinion Delivered 10
DECEMBER 2008
APPELLANT
V.
APPEAL FROM THE WORKERS’
COMPENSATION COMMISSION,
[NO. F607247]
J.D. & BILLY HINES TRUCKING, INC.
and CYPRESS INSURANCE COMPANY,
APPELLEES
REVERSED and REMANDED
D.P. MARSHALL JR., Judge
1.
W O RK ERS’
– CONTUSION CONSTITUTED OBJECTIVE M EDICAL FINDING –
ARK. CODE ANN. § 11-9-102 WAS SATISFIED.– The appellate court has held
that a contusion is an objective medical finding; here, reasonable persons with the same facts before
them could not have arrived at the Workers’ Compensation Commission’s conclusion that the
contusion diagnosis by the claimant’s doctor did not satisfy the requirement of an objective finding
as required by Arkansas Code Annotated § 11-9-102(4)(D); therefore, the appellate court
reversed and remanded for the Commission to reexamine its decision about the compensability of
the claimant’s shoulder and knee injuries.
COM PENSATION
REQUIREM ENT OF
2.
WORKERS’ COM P EN SATION – EVIDENCE – COM M ISSION M AY NOT ARBITRARILY DISREGARD
M EDICAL EVIDENCE.– Though it is the province of the Commission to weigh conflicting medical
evidence, it may not arbitrarily disregard medical evidence; the Commission was directed on
remand to consider certain relevant evidence not previously considered.
Moore & Giles, LLP, by: Greg Giles, for appellant.
Michael E. Ryburn, for appellee.
Ronnie Ellis was involved in an automobile accident while driving a truck for
J.D. & Billy Hines Trucking, Inc. Ellis swerved to avoid an oncoming car; his truck’s
brakes locked up; and the truck skidded off the road, landing on its side. Ellis claimed
that he injured his neck, left shoulder, and left knee in the accident. His employer
accepted the neck injury as compensable, but refused to pay benefits for Ellis’s
alleged shoulder and knee injuries. The Commission adopted the administrative law
judge’s opinion and found that Ellis failed to prove that he suffered compensable left
knee and shoulder injuries. Ellis appeals.
To receive benefits for his shoulder and knee injuries, Ellis had to prove these
facts: (1) that he suffered an injury arising out of and in the course of his employment;
(2) that the injury was caused by a specific incident identifiable by time and place of
occurrence; (3) that the injury caused internal or external physical harm to his body,
which required medical services or resulted in disability or death; and (4) that the injury
was established by medical evidence supported by objective findings. Ark. Code
Ann. § 11-9-102(4)(A)(i), (D) (Supp. 2007). The Commission found that Ellis failed
to prove either a left knee or left shoulder injury because the injuries were not
established by medical evidence supported by objective findings.
Under our
substantial-evidence standard of review, we must affirm if fair-minded persons with
the same facts before them could have reached the Commission’s conclusion. Smith
v. County Market/Southeast Foods, 73 Ark. App. 333, 336, 44 S.W.3d 737, 739
(2001).
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The Commission acknowledged two pieces of medical evidence supporting
Ellis’s claims: (1) an Emergency Nursing Record from the date of Ellis’s accident with
a checkmark beside the words “tenderness/swelling” and “L shoulder” handwritten to
the side; and (2) a Texas Workers’ Compensation Work Status Report bearing the
date of the accident (a Report which, according to testimony, may have been created
several days later), where Ellis’s doctor noted “contusion L shoulder & L knee.” But
the Commission concluded that neither record constituted an objective medical
finding.
We
agree
with
the
Commission
that
the
first
record—noting
“tenderness/swelling”—is ambiguous. We do not know whether the nurse intended
to note “tenderness” (a subjective finding), “swelling” (an objective finding), or both.
In the absence of evidence explaining the ambiguity, Ellis did not meet his burden of
proving that this was an objective medical finding.
We disagree, however, with the Commission’s conclusion about the second
piece of medical evidence—the “contusion” diagnosis by Ellis’s doctor.
The
Commission decided that the “diagnosis of contusions in the knee and shoulder,
without more, do not satisfy in this case the requirement of an objective finding” and
that a contusion “can itself be based either on objective findings or subjective
complaints.” The Commission relied on Rodriguez v. M. McDaniel Co., 98 Ark.
App. 138, 252 S.W.3d 146 (2007), in reaching its conclusion.
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In Rodriguez, the claimant was twice diagnosed with a hip contusion. First, in
the emergency room on the date of her injury, Rodriguez was diagnosed with a “hip
contusion on the right.” 98 Ark. App. at 143, 252 S.W.3d at 150. Three weeks later,
Dr. Timothy Yawn evaluated Rodriguez and also diagnosed a contusion. Dr. Yawn
later testified that “his diagnosis of a contusion did not necessarily mean that he had
viewed a disturbance in the skin and tissue.” 98 Ark. App. at 142, 252 S.W.3d at 150.
Dr. Yawn also testified about the emergency-room contusion note. He said that “the
notation in the record most likely referred to tenderness and not to visible darkening
or bruising.” 98 Ark. App. at 144, 252 S.W.3d at 152. Various tests failed to reveal
any internal injury. 98 Ark. App. at 141–44, 252 S.W.3d at 149–52. In Rodriguez,
the Commission thus had to weigh conflicting medical evidence about a contusion.
As this court acknowledged, “the Commission chose to believe the testimony of Dr.
Yawn,” 98 Ark. App. at 144, 252 S.W.3d at 152, and not the emergency-room record.
We therefore affirmed the Commission’s finding that Rodriguez failed to prove
objective medical findings. 98 Ark. App. at 143–45, 252 S.W.3d at 151–52.
This case is different. Here we have a contusion diagnosis with no conflicting
testimony about the nature of the contusion.
In their brief, the appellees quote a medical dictionary that defines a “contusion”
as an injury to tissues without breakage of skin: a bruise.
ENCYCLOPEDIA
AND
DICTIONARY
OF
M EDICINE, NURSING,
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AND
M ILLER-KEANE
ALLIED HEALTH 375
(6th ed. 1997). The appellees’ definition echoes those in other medical reference
books. E.g., T HE SLOANE-DORLAND AN N O T ATED M EDICAL-LEGAL DICTIONARY 165
(1987); STEDMAN’S M EDICAL DICTIO N ARY
390
(26th
ed.
1995); T ABER’S
CYCLOPEDIC M EDICAL D I CT I O NARY 479 (20th ed. 2005). It is substantially the same
as the standard definition of a contusion. 3 OXFORD ENGLISH D I CT I O N ARY 857 (2nd
ed. 1998).
Our cases, moreover, use the words “contusion” and “bruise”
interchangeably. Parson v. Arkansas Methodist Hospital,103 Ark. App. 178, 182, __
S.W.3d __, __ (2008). For example, this court has specifically referred to a doctor’s
diagnosis of a shoulder contusion as a bruise. Stephenson v. Tyson Foods, Inc., 70
Ark. App. 265, 268, 272–73, 19 S.W.3d 36, 38, 41 (2000). And we have held that a
contusion is an objective medical finding. Parson, 103 Ark. App. at 182, __ S.W.3d
at __; Bryant v. Staffmark, Inc., 76 Ark. App. 64, 67, 61 S.W.3d 856, 858 (2001).
We must follow our precedent in this case.
The parties do not discuss contusions to internal organs, which may raise
external-visibility issues. Compare Meister v. Safety Kleen, 339 Ark. 91, 92–95, 3
S.W.3d 320, 321–22 (1999) (addressing diagnosis of contusion to internal body part);
see also ATTORNEY’S ILLUSTRATED M EDICAL DICTIONARY C74 (West Publishing
Company 1997) (defining contusions of the heart, brain, and spinal cord). And we do
not address that type of contusion.
This case is about Dr. Nix’s unequivocal
diagnosis of contusions to Ellis’s left shoulder and left knee. We are convinced that
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reasonable persons with the same facts before them could not have arrived at the
Commission’s conclusion about Ellis’s contusions. Smith, 73 Ark. App. at 336, 44
S.W.3d at 739.
We therefore reverse and remand for the Commission to re-examine
its decision about the compensability of Ellis’s shoulder and knee injuries in light of
our conclusion that Ellis satisfied the statute’s objective-findings requirement. Ark.
Code Ann. § 11-9-102(4)(D).
On remand, the Commission should consider all relevant medical evidence,
including the spasms noticed by Ellis’s chiropractor and the “soft-tissue swelling”
noted in an emergency-room record. Ellis did not emphasize it, and neither the ALJ
nor the Commission addressed this other medical evidence. At the hearing, Ellis’s
attorney directed the ALJ’s attention to “two primary references”—the Emergency
Nursing Record and the Texas Workers’ Compensation Work Status Report.
Though it is the province of the Commission to weigh conflicting medical evidence,
it may not arbitrarily disregard medical evidence.
Coleman v. Pro Transportation,
Inc., 97 Ark. App. 338, 346–47, 249 S.W.3d 149, 155–56 (2007). We make no
comment on the effect of this evidence; we merely direct that the Commission
consider it when it revisits compensability.
Reversed and remanded.
BIRD and BAKER, JJ., agree.
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