MULTI-CRAFT CONTRACTORS, INC. AND GALLAGHER BASSETT SERVICES, INC. APPELLANTS
RICK YOUSEY APPELLEE
FROM THE ARKANSAS WORKERS' COMPENSATION COMMISSION [NO.
Bassett Law Firm LLP, by: Curtis L. Nebben, for appellants.
& Co., PLLC, by: Tim Cullen; and Jason M. Hatfield, P.A.,
by: Jason M. Hatfield, for appellee.
MARK KLAPPENBACH, Judge
Rick Yousey was seriously injured in an accident while
unloading equipment for his employer, appellant Multi-Craft
Contractors, Inc. Yousey's injuries were accepted and
medical treatment was provided, but Multi-Craft later
controverted his claims for permanent disability benefits for
his brain, loss of vision, and facial-nerve injury. The
Workers' Compensation Commission (Commission) awarded
Yousey benefits for impairments of his brain and left eye but
found that he was not entitled to benefits for a nerve
injury. On appeal, appellants contend that the impairment
ratings for his brain and left eye are not supported by
substantial evidence and that the Commission erred as a
matter of law. Yousey has filed a cross-appeal challenging
the Commission's findings regarding his left eye and
result of his February 24, 2012 accident, Yousey suffered
numerous facial fractures, including fractures of the
cheekbones, nose, sinuses, jaw, and orbital bones, as well as
a broken foot, broken hand, and torn rotator cuff. His
neurologist, Dr. Michael Morse, testified that Yousey had the
worst skull fracture he had ever seen and that he was lucky
to be alive. Yousey had surgeries on his face and to realign
his left eye, which had been pushed back into his head. He
testified that he suffered from double vision and blurred
vision since the accident, and as a result, he could no
longer obtain a commercial driver's license. Yousey said
that he takes prescription medication for headaches, which he
suffers from every day, and resorts to getting painful shots
in his head to treat the headaches when they become
unbearable. Other symptoms he suffers from include loss of
short-term memory, numbness and coldness in his left cheek,
loss of his senses of taste and smell, slower speech,
emotional lability, and depression.
Morse testified that Yousey's symptoms are consistent
with a frontal-lobe brain injury. Dr. Morse referred Yousey
to Richard Back, Ph.D., a clinical psychologist, for a
neuropsychological evaluation. Dr. Back tested Yousey and
found markedly impaired memory functioning and left-hand
impairment in terms of fine and gross motor tasks. Yousey had
improved somewhat when Dr. Back tested him again two years
later. Dr. Back opined that Yousey's test results and all
of his symptoms are consistent with the traumatic head injury
he had sustained and assessed a permanent-impairment rating
of twenty-nine percent to the body as a whole.
impairment" has been defined as any permanent functional
or anatomical loss remaining after the healing period has
ended. Wayne Smith Trucking, Inc. v. McWilliams,
2011 Ark.App. 414, 384 S.W.3d 561. Any determination of the
existence or extent of physical impairment shall be supported
by objective and measurable physical or mental findings. Ark.
Code Ann. § 11-9-704(c)(1)(B) (Repl. 2012).
"Objective findings" are those findings which
cannot come under the voluntary control of the patient. Ark.
Code Ann. § 11-9-102(16)(A)(i). Medical opinions
addressing compensability and permanent impairment must be
stated within a reasonable degree of medical certainty. Ark.
Code Ann. § 11-9-102(16)(B). However, there is no
requirement that medical testimony be based solely or
expressly on objective findings; the statute requires only
that the medical evidence of the injury and impairment be
supported by objective findings. Wayne Smith
injured employee is entitled to compensation for the
permanent functional or anatomical loss of use of the body as
a whole whether his or her earning capacity is diminished or
not. Id. The Commission is authorized to determine
what portion of the medical evidence to credit and to
translate that evidence into a finding of permanent
impairment using the AMA Guides to the Evaluation of
Permanent Impairment; the Commission may assess its own
impairment rating rather than rely solely upon determination
of the validity of ratings assigned by physicians.
reviewing decisions from the Commission, we view the evidence
and all reasonable inferences deducible therefrom in the
light most favorable to the Commission's decision and
affirm if that decision is supported by substantial evidence.
Rippe v. Delbert Hooten Logging, 100 Ark.App. 227,
266 S.W.3d 217 (2007). Substantial evidence is evidence that
a reasonable mind might accept as adequate to support a
conclusion. Id. Questions concerning the credibility
of witnesses and the weight to be given their testimony are
within the exclusive province of the Commission. Id.
Commission found that Yousey was entitled to a
permanent-anatomical-impairment rating of twenty-nine percent
to the body as a whole for a brain injury. The Commission
listed three objective findings to support its decision: (1)
the extreme damage to Yousey's face and skull evidencing
the traumatic forces applied to his brain; (2) the presence
of pneumocephalus; and (3) the presence of evidence of a
shear injury on an MRI. Appellants argue that none of these
constitute objective findings to support an impairment due to
a brain injury.
Commission first concluded that the severity of the damage to
Yousey's head was objective evidence of the great force
applied to his head, skull, and brain. The Commission noted
Dr. Back's testimony that the force it took to break the
multitude of bones in Yousey's face was consistent with
the type of force that would cause a brain injury. We agree
with appellants that the force of the accident and resulting
broken bones are not objective medical findings to support a
brain injury. Although great force was inflicted in the
accident, there was no evidence that the numerous fractures
Yousey suffered indicated that he necessarily injured his
brain as well.
Commission next found that Yousey's CT scan showed
pneumocephalus, which it said was "objective evidence of
skull fracture, and a skull fracture must involve trauma to
the brain." We agree with appellants that the Commission
used conjecture to find that a skull fracture "must
involve" trauma to the brain. Dr. Morse testified that
pneumocephalus was air inside the skull as a result of the
skull fracture. When asked what this meant regarding a brain
injury, Dr. Morse said that "it means his skull fracture
was pretty bad is all that means." There was no evidence
that the presence of pneumocephalus was an objective finding
of a brain injury.
the Commission relied on evidence of a shear injury on an
MRI. Dr. Morse testified that Yousey's MRI showed
something in his left internal capsule, but he could not tell
from the MRI if it was a cyst that he had been born with, a
shear injury due to the head injury, or an old, small infarct
from a prior stroke. Dr. Morse was asked if he could say it
was more likely to be shearing when considering all of the
evidence indicating that Yousey had sustained a brain injury,
but Dr. Morse said he could not say that. The Commission
found that it was more likely to be a shear injury because
there was no other evidence that Yousey had ever suffered a
stroke, and the accident was consistent with a shear injury.
Appellants argue that the Commission used conjecture and
speculation in reaching this conclusion. We agree. The
evidence established only that Yousey's MRI showed a
potential shear injury. Dr. Morse could not opine that it was
more likely to be a shear injury than the other two
possibilities. We hold that this does not constitute an
objective finding of a brain ...