Multi-Craft Contractors, Inc. v. Yousey

Cite as 2017 Ark. App. 143
ARKANSAS COURT OF APPEALS
DIVISION II
No. CV-16-565
Opinion Delivered March 8, 2017
MULTI-CRAFT CONTRACTORS,
INC. AND GALLAGHER BASSETT APPEAL FROM THE ARKANSAS
SERVICES, INC. WORKERS’ COMPENSATION
APPELLANTS COMMISSION
[NO. G201671]
V.
REVERSED IN PART AND
RICK YOUSEY AFFIRMED AS MODIFIED IN PART
APPELLEE ON DIRECT APPEAL; AFFIRMED IN
PART AND AFFIRMED AS
MODIFIED IN PART ON CROSS-
APPEAL
N. MARK KLAPPENBACH, Judge
Appellee 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 facial-nerve injury.
Cite as 2017 Ark. App. 143
As a 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.
Dr. 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.
2
Cite as 2017 Ark. App. 143
“Permanent 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 Trucking, supra.
An 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. Id.
In 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
3
Cite as 2017 Ark. App. 143
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.
The 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.
The 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.
4
Cite as 2017 Ark. App. 143
The 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.
Lastly, 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.
5
Cite as 2017 Ark. App. 143
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.
Our 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.
The 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
6
Cite as 2017 Ark. App. 143
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.
Appellants 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.
The 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
7
Cite as 2017 Ark. App. 143
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).
We 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.
On 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
8
Cite as 2017 Ark. App. 143
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.
Yousey 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.
Reversed in part and affirmed as modified in part on direct appeal; affirmed in part
and affirmed as modified in part on cross-appeal.
GRUBER, C.J., and GLOVER, J., agree.
Bassett Law Firm LLP, by: Curtis L. Nebben, for appellants.
Cullen & Co., PLLC, by: Tim Cullen; and Jason M. Hatfield, P.A., by: Jason M.
Hatfield, for appellee.
9