ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JUDGE KAREN R. BAKER

DIVISION IV

CHESTER JONES

APPELLANT

V.

CELOTEX CORPORATION

APPELLEE

CA00-1096

MAY 9, 2001

APPEAL FROM THE ARKANSAS WORKERS' COMPENSATION COMMISSION

[NO. E801838]

AFFIRMED

Appellant, Chester Jones, brings this appeal challenging a decision of the Workers' Compensation Commission. The Administrative Law Judge found that appellant was entitled to a sixty percent permanent disability as a result of his compensable lower-back injury, and that appellant failed to prove by a preponderance of the evidence that his cervical-spine difficulties were causally related to his compensable lower-back injury. The Workers' Compensation Commission affirmed the decision by the Administrative Law Judge. Appellant argues there is insufficient evidence to support the decision by the Commission. We affirm.

On December 26, 1997, appellant was in the process of moving bundles of shingles from one pallet to another with a co-worker when he felt a pulling and stinging sensation in his back that went down his left leg. X-rays, performed by Dr. Bill Dedman, revealedmoderate degenerative arthritis of the lower lumbar area, and appellant was diagnosed with an

acute lumbar strain with underlying degenerative arthritis. Dr. Dedman released appellant to return to work under a light-duty restriction. On January 5, 1998, appellant sought chiropractic treatment; however, appellant later returned to Dr. Dedman who determined a neurological referral was necessary due to appellant's continued complaints of pain. On February 4, 1998, appellant was seen by Dr. Anthony Russell, a neurologist. Dr. Russell recommended that appellant undergo an MRI of his cervical and lumbar areas. The results of the MRI warranted a surgical procedure on appellant's cervical spine for spinal chord compression; the procedure was performed and therapy was recommended by Dr. Russell. The therapy apparently was unsuccessful, and appellant returned to Dr. Russell with continued complaints of pain in his lower back and lower left extremity. On May 4, 1998, appellant underwent lumbar surgery. At a follow-up appointment on June 8, 1998, a second MRI determined the lumbar area to be satisfactory. Dr. Russell assigned appellant a ten percent permanent impairment rating to the body as a whole for the lumbar area injury. Appellant continued to work for appellee, under Dr. Dedman's restrictions, until appellant underwent cervical surgery. Appellant testified that he has not performed any work since he ceased performing light-duty work for appellant.

We will affirm the Commission if its decision is supported by substantial evidence; substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Air Compressor Equip. v. Sword, 69 Ark. App. 162, 11 S.W.3d 1 (2000). We view the evidence in the light most favorable to the findings of the Commissionand give the testimony its strongest probative force in favor of the action of the Commission. Ellison v. Therma Tru, 71 Ark. App. 410, 30 S.W.3d 769 (2000). 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). Rather, reasonable minds could reach the Commission's conclusion, we will affirm. Southern Steel & Wire v. Kahler, 54 Ark. App. 376, 927 S.W.2d 822 (1996).

Appellant argues there is insufficient evidence to support the Commission's denial of compensability for the neck injury. Specifically, appellant contends that his cervical difficulties are a compensable consequence of his compensable lower back injury. Previously, on April 2, 1997, months before appellant's lower back injury, he was diagnosed by another physician with carpal tunnel syndrome as a result of symptoms of numbness and tingling in the fingers on both of his hands. In regard to the incident on December 26, 1997, in Dr. Russell's deposition, he stated that when he first saw appellant for his lower-back injury, appellant did not mention any injury to the neck or any symptoms associated with the numbness and tingling. The numbness and tingling symptoms were not mentioned to Dr. Russell until a subsequent visit. Once the symptoms of numbness and tingling were conveyed to Dr. Russell, he presumed the symptoms were related to the injury on December 26, 1997. However, after tests revealed that the appellant had a very significant osteophyte or bone spur on his cervical spine, Dr. Russell concluded that the symptoms of numbness and tingling were not caused by an acute injury, but rather occurred over a period of time due toa degenerative condition. Although there was some inconsistency in Dr. Russell's deposition testimony concerning causation, when asked directly if he could relate appellant's cervical problems to the event of December 26, 1997, Dr. Russell responded, "No, not that, no I can't." Ultimately, Dr. Russell identified the reason for the cervical surgery on appellant as an ongoing degenerative problem that had been present for quite some time prior to appellant's work-related injury. Because the cervical-spine problem was serious, surgery on appellant's cervical spine was commenced prior to surgery on appellant's lower back. This court defers to the Commission in determining the weight of the evidence. See High Capacity Prods. v. Moore, 61 Ark. App. 1, 962 S.W.2d 831 (1998). As a result, we cannot say that the Commission's decision on this point is not supported by substantial evidence.

Appellant also argues there is insufficient evidence for the Commission's denial of wage loss benefits in excess of fifty percent. Appellee cross-appeals on this point, arguing the Commission erred in finding that appellant had wage-loss disability as great as fifty percent to the body as a whole in consideration of his back injury alone. Testimony showed that appellant returned to work for appellee after his initial medical evaluation in December 1997, performing light-duty work only. Appellant also testified that he continued to perform light- duty work until he underwent surgery for his cervical complications. Since that time, appellant has not returned to work for appellee. On July 28, 1998, appellant was released by Dr. Russell with an assignment of a ten percent permanent impairment rating and, in regards to returning to work, a lifting restriction of twenty-five pounds or less. Appellant testified that he could find work even with the twenty-five pound restriction placed on him by Dr.Russell. Appellant also testified that his entire work experience has involved driving a lift truck, which he drove for appellee for thirty years. Appellant further testified as to his high school education and his age; as of the date of the hearing appellant was sixty years old. In considering claims for permanent partial disability benefits in excess of the employee's percentage of permanent physical impairment, the Commission may take into account, in addition to the percentage of permanent physical impairment, such factors as the employee's age, education, work experience, and other matters reasonably expected to affect his future earning capacity. Douglas Tobacco Prods. Co., Inc. v. Gerrald, 68 Ark. App. 304, 8 S.W.3d 39 (1999). Appellant's age, limited job experience, and other relevant factors support the Commission's finding that appellant was entitled to a sixty percent permanent disability, an excess of fifty percent of his permanent impairment rating of ten percent.

Hart and Neal, JJ., agree.