Averitt Express, Inc. v. Gilley , 104 Ark. App. 16 ( 2008 )

Larry D. Vaught, Judge,

dissenting. I dissent from the majority because I believe that substantial evidence does not support the Commission’s decision. Accordingly, I would reverse and remand.

There are two issues in this case: whether substantial evidence supports the Commission’s award of 12% impairment and 20% wage-loss. On both issues, the majority answers yes; however, the majority (as did the Commission) fails to actually state what that substantial evidence is.

Regarding the 12% impairment rating, the majority concludes that substantial evidence supports the award because the Commission can give greater weight to an independent medical physician over the treating physician. See Roberson v. Waste Mgmt., 58 Ark. App. 11, 944 S.W.2d 858 (1997). While this proposition of law is correct, the majority fails to identify any facts supporting the Commission’s decision to weigh the medical evidence in this way.

Arkansas Code Annotated section 1 l-9-522(g)(1)(A) (Repl. 2002), requires that the Commission adopt an impairment-rating guide to be used in the assessment of anatomical impairment. The Commission adopted the American Medical Association’s Guide to the Evaluation of Permanent Impairment (4th ed. 1993), to be used in this assessment. See Arkansas Workers’ Compensation Commission Rule 34. While Rule 34 does not require that a doctor specifically state that he or she is issuing an impairment rating as per the AMA Guide, the rule does require that the AMA Guide be used in the assessment of anatomical impairment. Id.

The Commission found that “[t]he Guides at Table 3, page 3/20 support Dr. Collins’s assessment of a 12% whole-body impairment rating.”¹ The majority opinion agreed, stating that “the Commission found that the AMA Guides support Dr. Collins’s rating.” However, AMA Guide Table 3 page 3/20 is merely a chart that converts upper-extremity ratings to whole-body ratings. This table does not demonstrate how an upper-extremity rating is assessed.

The only finding made by the Commission on the impairment-rating issue was that “the rating assigned by Dr. Collins was based on ‘anatomic alteration of the skin, subcutaneous tissue, deltoid muscle, acromion process, coracoacromial bursa and the rotator cuff.’ ” Based on that finding, the Commission concluded that “the record indicates that these findings were objective and not within the claimant’s voluntary control.” Again, the Commission and the majority fail to cite the AMA Guide or any other facts in the record that support this conclusion.

While, as the majority stated, no magic words are required, citing the AMA Guide and not applying it to the specific injury makes a mockery out of section ll-9-522(g)(l)(A). I would remand for the Commission to apply the AMA Guide and make findings of fact, which we can review on appeal.

I would also remand the 20% wage-loss award to be reexamined in light of the findings on the impairment rating.

Pittman, C.J., and Robbins and Heffley, JJ., join.

1 Dr. Collins’s report did not include this information.