Michael v. Keep & Teach, Inc.

Olly Neal, Judge,

dissenting. I dissent in the reversal and remand of this case. The majority has determined that the Commission erred due to its incorrect application of Ark. Code Ann. § 11 -9-102 (4) (F) (ii) (b). The application of this statute was not the issue appellant brought before us; instead, the issue as framed by the appellant was “whether the finding of the Commission that the Appellant is not entitled to a permanent partial impairment rating of 9% to the whole body is supported by substantial evidence.”

This is not an instance in which we have de novo review; our standard of review is that of substantial evidence. In denying permanent anatomical benefits, the Commission did not find that Ms. Michael was not permanently anatomically impaired. Rather, it determined that the compensable injury was not the major cause of any permanent impairment.

A claimant must prove a specific percentage of permanent impairment before he is eligible for permanent disability and wage-loss benefits, Wren v. Sanders Plumbing Supply, 83 Ark. App. 111, 117 S.W.3d 657 (2003), and here, the Commission’s opinion displays a substantial basis for its denial of Ms. Michael’s claim for permanent anatomical benefits. Although Dr. Krishnan determined that appellant’s work-related injury was more than fifty percent of the cause of her impairment, Dr. Cathey determined that appellant’s condition was due to degenerative changes preexisting her injury. A compensable injury must be established by medical evidence supported by objective findings, and medical opinions addressing compensability must be stated within a reasonable degree of medical certainty. See Smith-Blair, Inc. v. Jones, 77 Ark. App. 273, 72 S.W.3d 560 (2002). Speculation and conjecture cannot substitute for credible evidence. Id. Further, the Commission has the authority to accept or reject medical opinions, and its resolution of the medical evidence has the force and effect of a jury verdict. Jim Walter Homes Travelers Ins. v. Beard, 82 Ark. App. 607, 120 S.W.3d 160 (2003). While there was conflicting medical evidence in this case, it is well settled that it is the Commission’s duty to resolve such conflicts. Polk County v. Jones, 74 Ark. App. 159, 47 S.W.3d 904 (2001).

In this instance, the Commission’s determination turned on its view of Dr. Krishnan’s credibility and the weight to be given the evidence. The Commission specifically noted that appellant failed to demonstrate by a preponderance of the evidence that the compensable injury was the major cause of the permanent disability or need for treatment. I believe the Commission’s decision displays a sufficient basis for the denial of the claim. There is no evidence in the record that supports the impairment rating given by Dr. Krishnan. Furthermore, no objective finding is in the record to support the impairment rating given. Accordingly, I would have affirmed this case based on the issue appellant brought before us.

I am authorized to state that Judge Crabtree joins me in this dissent.