ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

TERRY CRABTREE, JUDGE

DIVISION I

KELLY OTTO CLARK

APPELLANT

V.

WAL-MART STORES, INC., and CLAIMS MANAGEMENT, INC.

APPELLEES

CA 01-652

MARCH 20,2002

APPEAL FROM THE ARKANSAS WORKERS' COMPENSATION COMMISSION

[NO. E 509893]

REVERSED AND REMANDED

The appellant, Kelly Otto Clark, appeals from a decision of the Arkansas Workers' Compensation Commission in which the Commission found in favor of the appellee, Wal-Mart Stores, Inc., and thus found that appellant failed to prove entitlement to additional benefits. The Commission affirmed an Administrative Law Judge's (ALJ) findings that appellant failed to prove the following: (1) a compensable mental injury; (2) a compensable ulcer; (3) that medical expenses remain unpaid which are the liability of appellee; (4) that ongoing medical treatment was reasonably necessary for treatment of his compensable injury; (5) that he is entitled to any additional temporary total disability compensation; (6) that he is entitled to any permanent disability compensation. On appeal, appellant arguesthat the

Commission erred in finding that he did not prove a compensable mental injury.1 We reverse and remand.

Appellant worked for appellee for approximately eight years. He had eventually worked his way up to customer service manager. On June 11, 1995, in order to prepare for visitors from the home office, appellant agreed to stay and work after the store closed to strip and wax the floors. Appellant was in the locked store by himself. Sometime around 3:00 a.m., on the morning of June 12, 1995, appellant slipped and fell, apparently landing on his back and hitting his head. Appellant testified that he lost consciousness for a period of time, and he testified that he was lying in a puddle of blood when he woke up. Apparently, a nosebleed was the source of the blood. Appellant also sustained minor cuts on his jaw. Appellant called the receiving manager, Mark Druin, who had a key, to let him out of the store. Mr. Druin offered to call an ambulance or take appellant to the hospital, but appellant refused, stating that his sister lived close and she could take him. Appellant drove himself to his sister's house, and she took him to the emergency room. Appellee accepted and paid appellant's medical expenses related to the June 1995 fall until appellant was fully released without restrictions or permanent impairment by Dr. Terry Sutterfield. An ALJ found that appellant failed to prove a compensable mental injury and was not entitled to any additional medical benefits. On March 21, 2001, the Commission affirmed and adopted the decisionof the ALJ. It is from this opinion that appellant brings this appeal.

When reviewing a decision of the Arkansas Workers' Compensation Commission, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the findings of the Commission and affirm that decision if it is supported by substantial evidence. Clark v. Peabody Testing Serv., 265 Ark. 489, 579 S.W.2d 360 (1979). Substantial evidence is that which a reasonable mind might accept as adequate to support a conclusion. Crossett Sch. Dist. v. Fulton, 65 Ark. App. 63, 984 S.W.2d 833 (1999). The issue is not whether this court might have reached a different result from the Commission. Malone v. Texarkana Pub. Schs., 333 Ark. 343, 969 S.W.2d 644 (1998). If reasonable minds could reach the result found by the Commission, we must affirm the decision. Bradley v. Alumax, 50 Ark. App. 13, 899 S.W.2d 850 (1995). In making our review, we recognize that it is the function of the Commission to determine credibility of witnesses and the weight to be given their testimony. Stephens Truck Lines v. Millican, 58 Ark. App. 275, 950 S.W.2d 472 (1997).

Appellant's sole point on appeal is that the Commission erred in finding that he did not prove a compensable mental injury. The Commission found that appellant failed to satisfy the requirements necessary to prove a compensable mental injury under section 11-9-113. Arkansas Code Annotated section 11-9-113(a)(1) (Repl. 1996) states:

A mental injury or illness is not a compensable injury unless it is caused by physical injury to the employee's body, and shall not be considered an injury arising out of and in the course of employment or compensable unless it is demonstrated by the preponderance of the evidence; provided, however, that this physical injury limitation shall not apply to any victim of a crime ofviolence.

When appellant was taken to the emergency room on June 12, 1995, he was complaining of dizziness at times, right low back pain, pain in his right shoulder which extended into the back of his neck, right hip pain, and burning in his lower back. Appellant was unable to raise his right hand above his head. X-rays were taken of appellant's lumbar spine, cervical spine, and right shoulder, and these studies produced normal results. A back and neck strain were diagnosed, and physical therapy was prescribed. Appellant was treated by Dr. A. M. Grasse between June and August 1995. On September 7, 1995, appellant came under the care of Dr. Terry Sutterfield. Appellant reported headaches along with neck pain into the occipital area that would occasionally radiate into his right arm. Dr. Sutterfield noted that appellant's complaints did not follow any specific dermatome pattern. Dr. Sutterfield reported that appellant demonstrated subjective decreased range of motion in the neck, and would not flex or extend his neck much past twenty degrees. Dr. Sutterfield ordered a head MRI, which was performed on September 11, 1995, which revealed a sinus condition, but was otherwise negative. A cervical spine MRI performed the same day revealed a straightening of the cervical spine consistent with paraspinous muscle spasms, but was also otherwise negative. In September 1995, Dr. Sutterfield released appellant to return to light duty work. However, appellant did not report to work, rather advising Dr. Sutterfield that every time he took his sinus medicine he had experienced diarrhea, nausea, and upset stomach. On October 26, 1995, Dr. Sutterfield opined that appellant had reached maximum medical improvement.

Appellant sought no medical treatment between October 26, 1995, and March of 1996. On March 9, 1996, appellant presented to the Stone County Medical Center Emergency Room and was seen by Dr. N. J. Piediscalzi. Appellant was complaining that he had developed severe muscle spasms from his abdomen into his chest while sitting at home visiting with his sister. Appellant related that these symptoms had been prompted by an incident which had occurred earlier that evening when he went to visit his parents. An electrical defect in his vehicle caused the vehicle to catch on fire and burn up. Appellant related that following the fire he had become quite nauseated. Appellant was diagnosed with acute anxiety reaction.

On July 17, 1996, appellant presented to Dr. Jim Moore, a neurosurgeon, for evaluation. Dr. Moore opined that appellant's "episodic dizziness and blackouts may well be hyperventilation-oriented rather than on the basis of any intracranial process...." An EEG performed on October 16, 1996, did not reveal any abnormal findings. An MMPI was performed by Dr. Patrick Caffey, a clinical psychologist who summarized the results as follows:

In summary, the MMPI profile suggests that stress and anxiety are being converted into physical complaints by an individual who tends to overreact to even minor problems. He appears oversensitive, negativistic, and inclined to complain. He likely tends to handle difficulty through use of denial and repression and may express resentment over how he feels other people are treating him. There is some suspicion regarding the motives of others. He is likely to exaggerate pain or physical discomfort. The `83 norms indicate that surgery is not likely to be of benefit in controlling the pain. However, psychological techniques may be of help in reducing pain by decreasing anxiety and stress. However, he will likely be resistive to a psychological explanation of his difficulty. It is important to note that test results alsosuggest that he may be sporadic about following treatment recommendations, possibly over or under-medicating himself.

In a file note dated November 4, 1996, Dr. Moore indicated that no further diagnostic testing was needed, and appellant should have reached maximum medical improvement prior to that time. Dr. Moore opined that appellant should be able to work, although he suggested that hyperventilation might create some episodes of blanking out. Dr. Moore reported that he did not see any evidence of objective changes that would warrant a rating on appellant.

On referral from appellant's attorney, a neuropsychological evaluation was performed on November 15, 1999, by Dr. James R. Moneypenny, a psychologist. A report from Dr. Sutterfield dated January 16, 1996, indicated that he had spoken with appellant's attorney that day regarding a neuropsychological testing referral. Dr. Sutterfield advised appellant's attorney that appellant did not complain of any typical neuropsychological complaints, but primarily musculoskeletal, other than his chronic headaches.

Dr. Moneypenny, on November 15, 1999, administered the Halstead Reitan Neuropsychological Test Battery, reporting that appellant's scores were indicative of significant cognitive dysfunction. Dr. Moneypenny also administered the Minnesota Multiphasic Personality Inventory - 2, diagnosing appellant with a mood disorder and a somatoform disorder. Dr. Moneypenny opined that "[t]he overall pattern of findings indicates that the psychological maladjustment and cognitive deficits noted above are causally related to the fall he experienced in June of 1995." Dr. Moneypenny stated that "[h]e suffers from symptoms of brain damage that he sustained in a fall." Dr. Moneypennyopined that appellant has sustained a 100% permanent physical impairment as a result of his mental problems.

The ALJ gave Dr. Moneypenny's opinion no weight. The ALJ reasoned that Dr. Moneypenny's diagnosis is based on his assumption that appellant sustained organic brain damage as a result of the fall. The ALJ found that diagnostic studies performed on appellant have failed to demonstrate the existence of any organic brain damage. Thus, the ALJ found that appellant did not prove a compensable mental injury. The Commission affirmed these findings. We remand for a determination of whether appellant has a mental injury, and if so, whether the mental injury was caused by appellant's June 1995 fall.

The ALJ stated that he was not giving Dr. Moneypenny's opinion any weight based on the fact that Dr. Moneypenny assumed that the mental injury was caused by organic brain damage. However, no findings were made as to whether appellant actually had sustained a mental injury. In essence, Dr. Moneypenny's opinion has two parts. First, Dr. Moneypenny found that based on the tests he administered, appellant has a mood disorder and a somatoform disorder. Second, Dr. Moneypenny opined that appellant has brain damage as a result of the fall. The ALJ found Dr. Moneypenny's opinion that appellant has brain damage to be an assumption, and entitled it no weight. However, no finding was made as to the first part of Dr. Moneypenny's opinion, i.e., that appellant has a mental injury. As such, we remand for a determination as to whether appellant has a mental injury.

If it is determined that appellant does have a mental injury, then the cause of that mental injury must be determined. We are mindful of the ALJ's finding that appellant failedto demonstrate any organic brain damage. However, appellant need not prove brain damage in order to prove a compensable mental injury. Appellant need only prove that any mental injury has a causal connection to his June 1995 fall. See Ark. Code Ann. § 11-9-113; Terrell v. Arkansas Trucking Serv., Inc., 60 Ark. App. 93, 959 S.W.2d 70 (1998). As such, we remand for a determination of causation if it is found that appellant has sustained a mental injury.

Reversed and remanded.

Robbins and Roaf, JJ., agree.

1 We note that appellant in his brief makes no argument regarding the other issues decided adversely to him by the Commission. Thus, we need not address them on appeal.