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Bell v. Pine Bluff Toyota5/24/2000
NOT DESIGNATED FOR PUBLICATION
AFFIRMED
Appellant, Henry Bell, suffered an admittedly compensable back injury in an October 18, 1996, car wreck. The only issue litigated at the June 18, 1998, hearing was appellant's entitlement to a five percent permanent partial impairment rating assigned by Dr. Jim Moore. The administrative law judge determined that appellant was entitled to the five percent permanent partial impairment rating. The Workers' Compensation Commission reversed that determination, finding that appellant failed to prove that the impairment rating was supported by objective physical findings, and further stating that even if objective physical findings were present, appellant failed to prove that the October 18, 1996, accident was the major cause of the five percent rating assigned by Dr. Moore. Appellant brings this appeal, arguing that the Commission's decision is not supported by substantial evidence.
On appeal, this court must determine whether there is substantial evidence to support the Commission's result. Harvest Foods v. Washam, 52 Ark. App. 72, 914 S.W.2d 776 (1996). Substantial evidence is that relevant evidence which a reasonable mind might accept as adequate to support a conclusion. Id. The evidence is viewed in the light most favorable to the findings of the Commission and is given its strongest probative value in favor of the Commission's decision. Barrett v. Arkansas Rehabilitation Servs., 10 Ark. App. 102, 661 S.W.2d 439 (1983). The question is not whether the appellate court might have reached a different conclusion from the one found by the Commission if it were reviewing the case de novo, or even whether the evidence would have supported a contrary finding. Tyson Foods, Inc. v. Disheroon, 26 Ark. App. 145, 761 S.W.2d 617 (1988). The Commission's decision should not be reversed unless it is clear that fair-minded persons could not have reached the same conclusions if presented with the same facts. Johnson v. Democrat Printing and Lithograph, 57 Ark. App. 274, 944 S.W.2d 138 (1997).
Arkansas Code Annotated section 11-9-102(5)(F)(ii) (Repl. 1996) provides:
(a) Permanent benefits shall be awarded only upon a determination that the compensable injury was the major cause of the disability or impairment.
(b) If any compensable injury combines with a pre-existing disease or condition or the natural process of aging to cause or prolong disability or a need for treatment, permanent benefits shall be payable for the resultant condition only if the compensable injury is the major cause of the permanent disability or need for treatment.
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. 1996). "Objective findings" are those that cannot come under the voluntary control of the patient. Ark. Code Ann. § 11-9-102(16)(A)(i) (Repl. 1996).
Prior to his compensable injury, appellant had undergone two previous back surgeries. In a February 19, 1997, electrodiagnostic consultation, Dr. David Miles found that NCV/EMG studies suggested some chronic changes at L5 on the left side, including some current irritation, but there was also evidence of old changes that would be expected, given his prior back problems.
In a June 30, 1997, file note, Dr. Jim Moore stated: I believe [appellant] has sustained a stretch phenomenon as a result of the 10/18/96 injury. There is no evidence of a surgical lesion being present. . . . I believe this stretch phenomenon would translate to a PPD level of 5% which would be considered above and beyond anything that has been previ
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