NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

SAM BIRD, JUDGE DIVISION III

LEROY SANDERS,

APPELLANT

V.

WAL-MART STORES, INC.,

APPELLEE

CA00-1385

JUNE 13, 2001

APPEAL FROM THE WORKERS' COMPENSATION COMMISSION,

NO. E804882

AFFIRMED

Appellant LeRoy Sanders, a truck driver for appellee Wal-Mart Stores, Inc., sustained an admittedly compensable injury to his right elbow on April 13, 1998, when he was unhooking a trailer and his hand slipped from the crank handle. On appeal he contends that the Commission erred in finding that range-of-motion tests conducted by his orthopedic surgeon did not constitute objective physical findings upon which an impairment rating could be established. We affirm.

Arkansas Code Annotated section 11-9-704(c)(1)(B) (Repl. 1996) requires that any determination of the existence or extent of physical impairment shall be supported by objective and measurable physical or mental findings. Objective findings are those that cannot come under the voluntary control of the patient. Ark. Code Ann. § 11-9-102(16)(A)(i) (Supp. 1999). We applied the statutory requirement of objective findings to range-of-motion tests in Department of Parks and Tourism v. Helms, 60 Ark. App. 110, 959

S.W.2d 749 (1998), and in Hayes v. Wal-Mart, 71 Ark. App. 207, 29 S.W.3d 751 (2000).

The Helms court, finding that the claimant had not presented proof that the tests did not come under her voluntary control, found that her impairment rating had been predicated upon active range-of-motion tests and was not supported by objective findings. In Hayes the Commission found testimony to be credible by the claimant and physician that the claimant's arm had been moved by the physician, and thus found that the tests were passive range-of-motion evaluations not within the claimant's control. In Hayes we revisited the issue of whether range-of-motion tests constitute objective findings:

Helms contains dicta to the effect that active range-of-motion tests come under the voluntary control of the patient, and therefore do not constitute objective findings under Ark. Code Ann. § 11-9-102(16)(A)(i). However, the testimony in the case at bar (which the Commission expressly found to be credible) shows that the test performed in the present case was not one in which the limb was actively moved by the subject, but instead was a test in which the limb was moved passively by the examiner. Appellant testified, for example, that:

At the time of the May 18, 1998, check-up Dr. Meredith performed some tests to determine range of motion to my left shoulder. These tests did not have anything to do with my spine. Dr. Meredith did not instruct me to move my arm. . . . What the doctor did with the nurse present is he put his hand under my elbow towards the forearm and guided my hand upward with my arm extended and lifted it with my elbow up and then put it back down and he raised it to the level that he had it raised and went forward and he kept going forward until he stopped and then he did the same thing going to the back. . . . I did not control my arm when he was doing the test. He had my arm in his hand. At all times during the test Dr. Meredith was manipulating my arm and shoulder and I was not in control of it. . . . When the doctor was performing the test I did not have voluntary control of my arm. The doctor did not ask me to move my arm during the test and I could not have moved it forward to the extent that he moved it.

Doctor Meredith stated in a letter that range-of-motion studies of the type he performed can be "objectively and consistently measured by qualified physicians with reasonable accuracy and reproducibility."

The Commission was not required to accept this testimony as credible. However, given that the Commission did expressly find the testimony of appellant and Dr. Meredith to be credible, the conclusion is inescapable that the tests performed on appellant were passive range-of-motion evaluations performed by the examiner and not under the voluntary control of appellant. Under these circumstances, we hold that the Commission's opinion displays no rational basis for its finding that the range-of-motion tests performed on appellant did not constitute objective findings under Ark. Code Ann. § 11-9-102(16)(A)(i).

71 Ark. App. at 209-210, 29 S.W.3d at 753.

The abstract in the present case includes medical records of Dr. Scott Cooper, an orthopedic surgeon, regarding examinations of Sanders from May 1998 through January 1999. A report of May 1998 states, "Range-of-motion of the right elbow is approximately 10-110 degrees." In November 1998 Dr. Cooper reviewed a functional assessment evaluation of Sanders performed by HealthSouth. In January 1999 Dr. Cooper wrote, "I have measured his range of motion. Today his elbow range of motion is 5-135 degrees." In February 1999 Dr. Cooper assessed an eight percent rating for range of motion by combining an elbow impairment of three percent and a five percent impairment in wrist motion. He also assessed a twenty percent upper extremity impairment based upon strength testing and grip deficit, resulting in a twenty-six percent upper-extremity impairment and a sixteen percent whole person impairment based on the American Medical Association Guide to the Evaluation of Permanent Impairment.

Sanders contends that the impairment rating by Dr. Cooper is supported by objectivefindings based upon medical examination and passive range-of-motion tests that were administered by the doctor and not subject to the patient's voluntary control. He alleges that the Commission's belief in the invalidity of any range-of-motion-evaluations was based upon dicta in Department of Parks and Tourism v. Helms, supra. He concludes that the Commission's decision here, as in Hayes, supra, displays no rational basis for its finding that the range-of-motion tests did not constitute objective findings.

To support his argument that range-of-motion tests were passive tests performed by Dr. Cooper and were not under his own voluntary control, Sanders points to such phrases in the doctor's reports as "I have measured his ranges-of-motion," "my range-of-motion measurements," "my gross measurement," and "different settings." He points to Dr. Cooper's statement that he compared his evaluations with those made by HealthSouth. He also notes that Dr. Cooper's measurements were relied upon by Dr. Alice Martinson, a board-certified orthopedic surgeon who performed an independent medical evaluation upon Sanders before assigning a twenty-two percent impairment to the upper extremity and a thirteen percent total body impairment rating.

Wal-Mart contends that the permanent impairment ratings provided by Dr. Cooper and Dr. Martinson were not based on objective findings. It states that Dr. Cooper's calculations of impairment do not reflect an objective basis for the ratings, that Dr. Martinson performed no measurements herself, and that she noted that the loss of grip strength was due to pain. Wal-Mart argues that "by definition, range of motion is subjective in nature, requiring the patient himself to participate and observe the degree of flexion aparticular joint is capable of moving." Finally, Wal-Mart notes that neither doctor indicated a reasonable degree of medical certainty in arriving at the impairment ratings.

Although we do not agree with Wal-Mart that range-of-motion tests are by definition subjective, we do not interpret the evidence here, as Sanders does, as establishing that impairment ratings by the two physicians were based on passive range-of-motion tests or other objective and measurable findings. The evidence in this case simply does not rise to the level of that in Hayes, where credible testimony by both doctor and the claimant established that "the test was not one in which the limb was actively moved by the subject, but instead was a test in which the limb was moved passively by the examiner." 71 Ark. App. at 209, 29 S.W.3d at 753.

We affirm the Commission's finding that Sanders failed to prove entitlement to a permanent partial impairment rating based on the lack of objective medical findings on which to assess an appropriate impairment rating. Because this finding constitutes a substantial basis for the denial of the claim, we find it unnecessary to address further bases for denial as argued by Wal-Mart.

Affirmed.

Pittman and Neal, JJ., agree.