NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

ANDREE LAYTON ROAF, JUDGE

DIVISION III

BEVERLY ELLIS

APPELLANT

v.

BURLINGTON INDUSTRIES

APPELLEE

CA 00-01087

MAY 16, 2001

APPEAL FROM THE ARKANSAS WORKERS' COMPENSATION COMMISSION

[NO. E305472]

AFFIRMED

This is Beverly Ellis's second appeal of this case. This court reversed and remanded for further findings in 1999 because it was impossible to determine the exact basis for the Commission's denial of Ellis's claim for permanent-disability benefits. Upon remand, the Commission found that Ellis failed to submit evidence of a physical impairment, resulting from her prior compensable injury, that was supported by objective and measurable physical findings. On appeal Ellis argues that the Commission's denial of benefits is not supported by substantial evidence. We affirm.

The facts of this case have not changed since this court remanded to the Commission for further findings. As this court previously noted, Ellis suffered a partial-scalping injury on March31, 1993, when her hair became entangled in machinery. She underwent skin-graft surgery on April 1, 1993, and was released to return to work in May 1993. She received medical and temporary total-disability benefits as a result of the initial compensable injury. Ellis subsequently filed this claim for permanent total-disability benefits based on persistent headaches. The record included testimony from Ellis and husband, James, regarding her headaches and their effects on her life and work.

In a February 17, 2000, opinion, the ALJ complied with the Commission's remand for further findings and stated that Ellis:

[f]ailed to submit evidence of a physical impairment resulting from the March 31, 1993, compensable injury that is supported by objective and measurable physical findings pursuant to the above-cited statutory provision [section 11-9-704(c)(1)]. Dr. Corbitt's medical determination that Claimant qualified for 100% impairment rating of permanent total disability is not supported by objective and measurable physical findings in the record. Dr. Cathey opined that by the very nature of the entity a headache is a subjective complaint. Anatomical impairment is an essential component of disability which the claimant has the burden of proving and Claimant has failed to sustain her burden of proof that she has sustained an anatomical impairment. To be entitled to disability benefits Claimant must first establish the presence of an anatomical impairment as a result of her compensable injury.

The Commission affirmed and adopted the ALJ's findings and conclusions. It is from this decision that Ellis brings this second appeal, arguing that sufficient evidence does not support the Commission's denial of her claim.

In cases where the Commission's denial of relief is based on the claimant's failure to prove entitlement by a preponderance of the evidence, the substantial evidence standard of review requires us to affirm if the Commission's opinion displays a substantial basis for the denial of relief. Weller v. Darling Store Fixtures, 38 Ark. App. 95, 828 S.W.2d 858 (1992). As the ALJ recognized, Ellis's injury occurred in March of 1993 and is therefore governed by the Workers' Compensation Act that was in effect prior to the enactment of Act 796 of 1993. Under that Act, both the Commission and the court are required to construe the provisions of the Workers' Compensation Act liberally, inaccordance with its remedial purposes; however, liberal construction does not mean enlargement or restriction of any plain provision of the law. Holiday Inn-West v. Coleman, 31 Ark. App. 224, 792 S.W.2d 345 (1990). If a statutory provision is plain and unambiguous, it is the duty of the court to enforce it as it is written. Id.

The ALJ based his denial of permanent disability on Arkansas Code Annotated section 11-9-704(c)(1) (1987), and there is not a marked difference between the two acts with respect to that section of the statute. Section 11-9-704(c)(1) provided in pertinent part:

(c) Evidence and Construction. (1) At the hearing the claimant and the employer may each present evidence in respect of the claim and may be represented by any person authorized in writing for such purpose. The evidence may include verified medical reports which shall be accorded such weight as may be warranted from all the evidence of the case. Any determination of the existence or extent of physical impairment shall be supported by objective and measurable physical or mental findings.

Under the earlier statute, this court defined objective as meaning "based on observable phenomena" and, in medical terms, "[i]ndicating a symptom or condition perceived as a sign of disease by someone other than the person afflicted." Keller v. L.A. Darling Fixtures, 40 Ark. App. 94, 845 S.W.2d 15 (1992).

Ellis argues that Dr. Mary Corbitt's disability rating was supported by her clinical findings made prior to August 17, 1994, which were not merely reiterations of subjective complaints. She also notes that Dr. Corbitt indicated that her headaches "will continue indefinitely." She argues that this was noted by the Commission in its April 11, 1996, opinion and, in essence, the Commission had therefore already found her to be permanently disabled before she filed her claim for permanent disability.

The ALJ's opinion, adopted by the Commission, noted the testimony of Dr. Corbitt, Ellis's treating physician, and Dr. Stephen Cathey, a neurosurgeon, in support of the conclusion that Ellisdid not present objective findings supporting her claim for permanent disability. He noted that Dr. Corbitt's August 13, 1997, letter stated that Ellis "continues to suffer from severe, intractable chronic daily headache. In my medical opinion she qualifies for 100% rating of permanent total disability." The ALJ also noted deposition testimony from Dr. Cathey based on an August 8, 1994, evaluation of Ellis wherein Dr. Cathy opined that a headache by its very nature is a subjective complaint. Further, when questioned regarding the impact of Ellis's headaches on her ability to function, Dr. Cathy stated: "Well, it all depends on how bad the headache is, I suppose, but there was not really any objective evidence of neurological deficits or restricted movement in the neck or any condition that would be objectively measurable that would restrict her from independent function." This court has stated that complaints of headaches are indications over which a person has voluntary control and are not objective findings. Swift-Eckrich, Inc. v. Brock, 63 Ark. App. 118, 975 S.W.2d 857 (1998). Though Ellis argues she did not need to put forth additional evidence to support her claim for permanent disability, the only medical evidence she abstracted, Dr. Corbitt's letter, supplied no symptoms or conditions, aside from the headaches, observed by the doctor. Further, while it is true that the Commission held that Ellis's headaches were a compensable consequence of her injury, the Commission also stated that "persistence of pain is not sufficient in itself to extend the healing period or to find that the claimant is totally incapacitated from earning." (emphasis added).

Ellis's other argument is that the ALJ misstated the law when he stated that "[a]natomical impairment is an essential component of disability." She is incorrect. Disability was defined, at the time of Ellis's accident, as "incapacity because of injury to earn, in the same or any other employment, the wages which the employee was receiving at the time of the injury." Ark. Code Ann. § 11-9-102(5) (1987). However, the Commission must find permanent impairment before aclaimant is eligible for wage-loss benefits. See Wal-Mart Stores v. Connell, 340 Ark. 475, 10 S.W.3d 882 (2000) (holding that for a claimant to be entitled to any wage-loss disability benefit in excess of permanent physical impairment, a claimant must first prove, by a preponderance of the evidence, that he sustained permanent physical impairment as a result of a compensable injury). Because the Commission did not find any basis for a permanent physical impairment rating, wage-loss disability was not available to Ellis.

Affirmed.

Stroud, C.J., and Pittman, J., agree.