Sullivan v. Paris Retirement Inn

Olly Neal, Judge. Helen Sullivan appeals from the portion of the order of the Workers’ Compensation Commission that denied the compensability of her claim for permanent partial disability benefits. For reversal of the Commission’s order, appellant argues that the Commission’s decision that she faded to prove, by a preponderance of the evidence, entitlement to permanent partial disability benefits is not supported by substantial evidence. We affirm. Appellant was employed by appellee as a nurse’s assistant whose job duties included lifting patients out of bed to dress and bathe them. On October 10, 1994, appellant suffered an injury to her right shoulder, for which appellee accepted compensability and paid benefits. Appellant suffered a second injury to her right shoulder and neck on June 12, 1995. Following her compensable injury, appellant underwent a cervical fusion that was performed by Dr. Luis Cesar. Subsequent to that time, appellant developed a number of complaints involving pain in her left heel, left arm, left shoulder and right forearm. Appellant then filed a claim for workers’ compensation disability benefits and contended that she sustained injuries to those parts of her body as a result of repetitive trauma while employed by appellee. The administrative law judge awarded appellant benefits for her admittedly compensable injuries through June 9, 1996. The ALJ also found that appellant had failed to prove by a preponderance of the evidence that she is entitled to any permanent partial disability benefits as the result of her compensable injuries. In addition, the ALJ found that appellant failed to prove that she suffered a compensable injury to her left heel, left arm, left shoulder, or right forearm while employed by appellee. The appellant then appealed to the Commission, which affirmed and adopted the ALJ’s decision as its own. When reviewing a decision of the Workers’ Compensation Commission, we view the evidence and all reasonably inferences deducible therefrom in the fight most favorable to the findings of the Commission and affirm that decision if it is supported by substantial evidence. Atkins Nursing Home v. Gray, 54 Ark. App. 125, 923 S.W.2d 897 (1996). Substantial evidence is that which a reasonable person might accept as adequate to support a conclusion. Smith v. Gerber Products, 54 Ark. App. 57, 922 S.W.2d 365 (1996). Arkansas Code Annotated § 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. Arkansas Code Annotated § 11-9-102(14) (A) (Repl. 1996) defines “major cause” as “more than fifty percent (50%) of the cause.” At trial, the deposed testimony of Dr. Cesar was admitted into evidence. According to Dr. Cesar, he performed a cervical fusion on appellant at the C5-6 level to correct a disc herniation. While conducting the surgery, Dr. Cesar also removed bone spurs that he opined were the result of cervical spondylosis. Dr. Cesar noted that when performing surgery to address an injury to the neck there generally is a combination of the bone spur and disc herniation. Dr. Cesar assigned appellant a permanent impairment rating of 7% to the body as a whole based upon AMA Guidelines. When questioned, Dr. Cesar could not state whether the 7% rating was due mostly to cervical spondylosis or mostly to the disc herniation, because the impairment rating refers to the type of procedure a patient has had and the result. According to appellant, Dr. Cesar’s testimony should be construed to mean that the ratings do not provide sufficient information or guidance to allow him to award a rating based upon causation, but merely refer to the fact that it was a single level operation to the neck and the results of the surgery. When asked what cervical spondylosis is, Dr. Cesar responded: Cervical spondylosis is a general term that refers to changes that you see in the spine due to chronic progressive wear and tear alterations that you see as people grow old, and are generally characterized by the drying up of discs, narrowing of the vertebral space, spurs, and many times disc herniations. Dr. Cesar also stated that the single event in this case would not have caused spondylosis, although it may have cause the disc herniation. Dr. Cesar was unable to state that the compensable injury was the major cause of appellant’s permanent disability. Dr. Cesar also opined that appellant’s neck and shoulder injury were not causally related to her other complaints. As stated earlier, on appeal we view the evidence in the light most favorable to the Commission’s findings. Here, appellant has failed to produce evidence that the compensable injury is the major cause of her disability. We hold that there is substantial evidence to support the Commission’s decision. Affirmed. Robbins, C.J., and Bird, Rogers, and Griffen, JJ., agree. Stroud, J., dissents.