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PATTERSON v. ARKANSAS DEPARTMENT HEALTH5/3/2000
about once a month, she takes calls for the Health Department on the weekends, assisting in locating nurses in the county from which the call originated. She is also able to do a limited amount of other telephone work and some paperwork. However, this limited employment is not equivalent to her usual employment which had paid more than $30,000.00 per year.
On October 1, 1996, Dr. Reginald J. Rutherford wrote that he considered the claimant capable of working in a sedentary capacity, depending on her motivation and whether the employer is accommodating, and then assessed her anatomical impairment at 25% to the body as a whole, which was accepted by respondents 1. On October 3, 1996, Dr. Moore wrote that the claimant's residuals were going to be significant, noting that she had cauda equina syndrome and arachnoiditis, and he rated her impairment at 60% to the body as a whole. He also remarked that the claimant would require ongoing medication that is generally best provided by a pain clinic surrounding. On November 4, 1996, he wrote that he did not believe that the claimant was "capable of returning to working activities, possibly sedentary, but certainly medication will be required. . . ." He noted that the claimant had ongoing cauda equina syndrome which is not thought likely to improve.
When the entire record is reviewed, in light of the claimant's age, education, work experience, level of motivation, physical condition, and other matters reasonably expected to affect her future earning capacity, the preponderance of the evidence shows
that she has sustained substantial permanent disability but has not been rendered permanently and totally disabled. Even though she had sustained a significant low back injury and undergone four surgeries, the claimant continued to return to the work place, until the consequences of the last surgery, which were more substantial. Even though she is severely limited by her physical condition and the effects of the medication related to her compensable injury, she has been able to undertake limited employment by being on call, being available to give advice over the telephone, and by doing paperwork, employment which is not constant in its demands on the claimant's time, but which is not full time and are not widely available with other employers. (Emphasis ours.)
We think from a reading of the ALJ's opinion, which was adopted by the Commission, that fair-minded persons with the same facts before them could not have reached the same conclusions. Indeed, there is no suggestion that appellant's testimony is not credible, and the opinion outlines appellant's severe and ongoing medical problems. Further, Dr. Moore, appellant's treating physician, did not believe appellant capable of returning to work, unless possibly in sedentary activities, but "certainly medication will be required" and only on a trial basis. Moreover, the evidence is that appellant needs continuing pain medication, which is ineffective in giving her long-term relief and which impairs her ability to think. We are not unmindful of Dr. Rutherford's opinion that appellant is able to return to work and that conflicts in the medical evidence are a question of fact for the Commission. When the Commission chooses to accept the testimony of one physician over another in such cases, we are powerless to reverse the decision. Henson v. Club Prods., 22 Ark. App. 136, 736 S.W.2d 290 (1987). However, we note that the ALJ's opinion is silent in regard to any findings of credibility and fails to state that it accepts Dr. Rutherford's opinion over that of Dr. Moore. Finally, we think it significant that the ALJ's opinion states that appellant has performed some employment which is not constant i
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