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 injury. Substantial evidence
exists only if reasonable minds could have reached the same
conclusion without resort to speculation or conjecture.
Serrano v. Westrim, Inc., 2011 Ark.App. 771, 387
S.W.3d 292. Conjecture and speculation, even if plausible,
cannot take the place of proof. Id.
court has established that neuropsychological testing,
without more, is not adequate to establish an organic brain
injury by "objective findings." Parson v. Ark.
Methodist Hosp., 103 Ark.App. 178, 287 S.W.3d 645
(2008); Rippe, 100 Ark.App. 227, 266 S.W.3d 217.
Although Yousey's fractures and pneumocephalus were
objective findings, they supported an injury only to his
skull or his head, not his brain. See Parson,
supra (holding that the objective findings of a
facial hematoma and contusions supported an injury only to
appellant's head, not her brain). Dr. Morse testified
that based on the technology that was available, there were
no objective findings of an injury to Yousey's brain. We
hold that the evidence cited by the Commission does not
satisfy the statute's requirement for objective findings
to support a brain injury. Therefore, we reverse the
Commission's decision awarding Yousey
permanent-impairment benefits for his brain.
Commission found that Yousey was entitled to a
permanent-impairment rating of twenty-four percent to the
body as a whole for his loss of vision. The Commission
adopted the reasoning and assessment of Dr. Andrew Lawton, an
ophthalmologist with a speciality in neuro-ophthalmology. As
a result of the many fractures in Yousey's face,
including a left-orbital-blowout fracture, Yousey's left
eye was downwardly displaced and sunken in. Despite surgery,
his eyes remained misaligned, and he suffered from double
vision. Dr. Lawton testified that the AMA guides provided
three components for the measurement of visual impairment,
and the third component encompassed double vision. If a
person has double vision within the central ten to twenty
degrees of vision, Dr. Lawton said that it is interpreted by
the AMA rules as a total loss of vision in that eye. A person
would have to cover that eye in order to function. Dr. Lawton
said that Yousey has double vision even less than ten degrees
away from center of vision. According to Dr. Lawton, Yousey
is entitled to a rating for total loss of vision in one eye,
which is a twenty-five percent impairment of the entire
visual system and translates to a twenty-four percent
impairment of the whole person. The Commission agreed.
argue that this finding is not supported by substantial
evidence because Yousey's visual acuity and peripheral
vision were not affected by his injury; he can still see out
of his left eye. Alternatively, appellants argue that Yousey
should not be awarded benefits to the body as a whole because
his injury is a scheduled injury. Under the scheduled-injury
statute, appellants argue that Yousey did not suffer total
loss of vision. On cross-appeal, Yousey agrees that his eye
injury is a scheduled injury and asserts that he is entitled
to a rating for 100 percent loss of use of his left eye.
test of whether an injury falls within the scheduled-injury
category is primarily a question of law. Fed. Compress
& Warehouse Co. v. Risper, 55 Ark.App. 300, 935
S.W.2d 279 (1996). An eye injury and the resulting
impairment, including double vision, fall under the scheduled
permanent-injury category as set forth in Arkansas Code
Annotated section 11-9-521. See id. This statute
provides that an enucleated eye, in which there was useful
vision, is a scheduled injury for which an employee shall
receive weekly benefits in the amount of the permanent
partial-disability rate attributable to the injury for 105
weeks. Ark. Code Ann. § 11-9-521(a)(14). Compensation
for the permanent loss of eighty percent or more of the
vision of an eye shall be the same as for the loss of an eye.
Ark. Code Ann. § 11-9-521(c)(1).
agree with the parties that Yousey's injury is a
scheduled injury. Dr. Lawton's testimony provided
substantial evidence to support the Commission's finding
that Yousey was entitled to a rating for 100 percent loss of
vision in his left eye; however, because an eye injury is a
scheduled injury, the Commission erred in converting the
rating to an impairment to the body as a whole. A claimant
who sustains a scheduled injury is limited to the applicable
allowances set forth in Arkansas Code Annotated section
11-9-521. Fed. Compress & Warehouse Co.,
supra. We therefore affirm the Commission's
finding of 100 percent impairment to Yousey's left eye
but modify the award to reflect that it is a scheduled injury
and is not converted to an impairment to the body as a whole.
cross-appeal, Yousey argues that there is no substantial
evidence to support the Commission's refusal to award a
rating for his trigeminal nerve injury. The Commission found
that Yousey was not entitled to a rating for this injury
because the rating assessed by Dr. Morse was based on
Yousey's level of pain. When determining physical or
anatomical impairment, neither a physician, any other medical
provider, an administrative law judge, the Workers'
Compensation Commission, nor the courts may consider
complaints of pain. Ark. Code Ann. §
11-9-102(16)(A)(ii)(a). In Dr. Morse's deposition,
Yousey's counsel asked him if Yousey would be entitled to
a rating for a trigeminal nerve injury based on Table 9 of
page 145 of the AMA guides. Yousey's counsel noted that
the table rated mild, moderate, and severe neuralgic pain,
and Dr. Morse assigned a moderate rating based on the level
of pain Yousey reported from his headaches.
relies on this court's opinion in Wayne Smith
Trucking, Inc., 2011 Ark.App. 414, 384 S.W.3d 561, for
the proposition that damage to the trigeminal nerve is an
accepted finding to support an impairment rating. The
impairment rating affirmed in that case, however, was not
based solely on complaints of pain. Here, when asked to
assess a rating, Dr. Morse clearly considered only
Yousey's level of pain caused by his headaches.
Substantial evidence supports the Commission's denial of
permanent-impairment benefits for Yousey's nerve injury,
and we affirm.
in part and affirmed as modified in part on direct appeal;
affirmed in part and affirmed as modified in part on
Gruber, C.J., and Glover, J., agree.
for rehearing denied.
Gruber, C.J., and Klappenbach ...