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Williams v. Arkansas Department of Community Correction

Court of Appeals of Arkansas, Division III

September 21, 2016

SANDRA C. WILLIAMS APPELLANT
v.
ARKANSAS DEPARTMENT OF COMMUNITY CORRECTION AND ARKANSAS INSURANCE DEPARTMENT, PUBLIC EMPLOYEE CLAIMS DIVISION APPELLEES

         APPEAL FROM THE ARKANSAS WORKERS' COMPENSATION COMMISSION [NO. G203173]

          Gary Davis, for appellant.

          Charles H. McLemore Jr., for appellee.

          KENNETH S. HIXSON, Judge.

         Appellant Sandra Williams appeals from a January 8, 2016 opinion by the Arkansas Workers' Compensation Commission (Commission) affirming and adopting the findings of fact and conclusions of law made by the Administrative Law Judge (ALJ) in favor of appellees the Arkansas Department of Community Correction and the Arkansas Insurance Department, Public Employee Claims Division. On appeal, appellant contends that the Commission's assignment of permanent partial-disability (PPD) benefits was not supported by substantial evidence. We disagree and affirm.

         Appellant injured both arms and left knee on April 16, 2012, in a fall during her employment at the Arkansas Department of Community Correction. Appellees contested the claim. The ALJ found in a March 11, 2013 opinion that the injuries were compensable and that appellant was entitled to temporary total-disability (TTD) benefits. Appellees did not appeal that decision.

         After reaching maximum medical improvement, appellant sought PPD benefits arising out of her compensable injuries. Dr. J. Adam Smitherman, appellant's treating physician, assigned a forty-seven percent impairment rating to her right upper extremity and a five percent impairment rating to her left upper extremity. On the other hand, Dr. Bruce Randolph, who was retained by appellees to perform an independent medical examination on appellant, assigned only a four percent impairment rating to appellant's right wrist, a two percent impairment rating to appellant's right elbow, and a six percent impairment rating to her left wrist. A hearing was held before the ALJ on March 12, 2015, to determine the extent of appellant's permanent impairment.

         At the hearing, appellant testified that Dr. Smitherman was her treating physician and that she had seen him several times. She saw Dr. Randolph on only one occasion after appellees had requested an independent medical evaluation. Appellant testified that both doctors conducted range-of-motion testing, which included testing where she moved her extremities (active range of motion) and testing where the doctor moved her extremities with her relaxed (passive range of motion).

         The ALJ reviewed the medical records of each physician. The pertinent medical records reflect that Dr. Smitherman issued a written physician's statement opining that appellant had a forty-seven percent impairment rating to her upper extremity and a five percent impairment rating to her left wrist. Dr. Smitherman's statement additionally provided that the objective and measurable findings that formed the bases for the ratings included "[l]oss of motion in Right Elbow, wrist & hand; Loss of motion Left elbow & wrist." Furthermore, Dr. Smitherman cited to Figures 32 and 35 and Tables 3 and 15 of the American Medical Association's Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA Guidelines), in support of his findings. Lastly, Dr. Smitherman checked the corresponding box on the report form indicating that he used passive range-of-motion criteria in assigning appellant's impairment.

         Dr. Randolph examined appellant on February 10, 2015. In a very detailed report with charts and calculations, Dr. Randolph assigned a four percent upper-extremity impairment rating for appellant's right wrist, a two percent upper-extremity impairment rating for appellant's right elbow, and a six percent upper-extremity impairment rating for appellant's left wrist. Using the AMA Guidelines, Dr. Randolph calculated that these ratings translated to a seven percent whole-person impairment rating due to the loss of motion in appellant's right wrist, right elbow, and left wrist. He further explained that these ratings were based on passive range-of-motion criteria and were "given within reasonable medical certainty."

         After the hearing, the ALJ filed its opinion on June 9, 2015, wherein it adopted the impairment ratings of Dr. Randolph and found that the appellant sustained a four percent upper-extremity impairment rating for appellant's right wrist, a two percent upper-extremity impairment rating for appellant's right elbow, and a six percent upper-extremity impairment rating for appellant's left wrist, and that appellant did not sustain her burden of proving additional impairment.

         In resolving the conflicting medical opinions between Dr. Smitherman and Dr. Randolph concerning appellant's impairment rating, the ALJ specifically made the following findings:

The Commission is authorized to accept or reject a medical opinion and is authorized to determine its medical soundness and probative value. Poulan Weed Eater v. Marshall, 79 Ark.App. 129, 84 S.W.3d 878 (2002); Green Bay Packing v. Bartlett, 67 Ark.App. 332, 999 S.W.2d 692 (1999). Based on my review of the evidence, I credit that both Smitherman and Randolph used only passive range-of-motion testing in assigning their ratings that they represented were based only on such testing.
That said, in examining Dr. Smitherman's findings, there is no way to tell if the impairment ratings he assessed are valid ones based on his testing. When asked to cite the objective and measurable findings that he used, the doctor simply responded: "Loss of motion in Right Elbow, wrist, & head; Loss of motion Left elbow & wrist." These are not quantified in the evidence at bar. One cannot determine if the findings of his passive range-of-motion testing comport with Figures 32 and 35 and Tables 3 and 15-which Smitherman stated that he used-without resorting to speculation and conjecture. But speculation and conjecture cannot serve as a substitute for proof. Dena Construction Co. v. Herndon, 264 Ark. 791, 796, 575 S.W.2d 155 (1979). That said, I cannot, and do not, credit his findings regarding the degree of Claimant's alleged impairment.
Dr. Randolph's findings, on the other hand, are extensively documented and comport with those portions of the AMA Guides he cited in support of the ratings he assigned under them. I thus credit his findings and find that the evidence preponderates that Claimant is entitled to impairment ratings of four percent (4%) to her right ...

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