ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION III

THERESA BARRON

APPELLANT

V.

CREATIVE FOODS, EMPLOYER AND AMERICAN INTERSTATE INSURANCE

APPELLEES

CA03-630

January 7, 2004

APPEAL FROM THE ARKANSAS WORKERS' COMPENSATION COMMISSION

[NO. F013289]

AFFIRMED

Josephine Linker Hart, Judge

Appellant Theresa Barron appeals the decision of the Arkansas Workers' Compensation Commission denying her an award of permanent and total disability benefits and limiting her permanent impairment rating to 20% to her left hand. Appellant argues that the Commission erred as a matter of law by finding that the injuries appellant suffered to her left arm did not entitle her to total and permanent disability. Appellant then argues that the Commission erroneously interpreted the law because it did not properly consider the evidence presented by appellant that established her entitlement to permanent and total disability benefits. Finally, appellant argues in the alternative that in addition to the 20% loss of function to her hand, she suffered a loss of use of the upper extremity and is entitled to a 25% impairment rating to the upper extremity. We disagree and affirm.

Appellant's claim for workers' compensation benefits was accepted by appellee, and she received temporary total disability benefits, medical benefits, and permanent partial disability benefits based on an impairment rating of 19% to her left hand. The Commission affirmed and adopted the decision of the Administrative Law Judge that increased appellant's impairment rating of her left hand from 19% to 20% and found that she was not permanently and totally disabled. From the decision of the Commission comes this appeal.

When reviewing decisions of the Commission, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission's findings and affirm if substantial evidence supports the decision. See Swift-Eckrich, Inc. v. Brock, 63 Ark. App. 118, 975 S.W.2d 857 (1998); Georgia-Pacific Corp. v. Carter, 62 Ark. App. 162, 969 S.W.2d 677 (1998). On appellate review, the test of whether or not an injury falls within the scheduled-injury category is primarily a question of law. Federal Compress & Warehouse Co. v. Risper, 55 Ark. App. 300, 935 S.W.2d 279 (1996). Substantial evidence is that which a reasonable person might accept as adequate to support a resolution. Wackenhut Corp. and St. Paul Fire & Marine Ins. Co. v. Jones, 73 Ark. App. 158, 40 S.W.3d 333 (2001).

The Commission has the duty of weighing all evidence, notably, medical evidence, and the resolution of such evidence has the force and effect of a jury verdict. Chamber Door Indus., Inc. v. Graham, 59 Ark. App. 224, 956 S.W.2d 196 (1997). "The Commission has the authority to accept or reject medical opinion and the authority to determine its medical soundness and probative force." Hill v. Baptist Med. Center, 74 Ark. App. 250, 57 S.W.3d 735 (2001). However, the Commission is not totally insulated from judicial review by this standard because this would render this court's function in these cases meaningless. Cooper v. Hiland Dairy, 69 Ark. App. 200, 11 S.W.3d 5 (2000). We will not reverse a decision of the Workers' Compensation Commission unless it is clear that fair-minded persons could not have reached the same conclusions if presented with the same facts. Dallas County Hosp. v. Daniels, 74 Ark. App. 177, 47 S.W.3d 283 (2001).

Compensable injury is defined by Ark. Code Ann. § 11-9-102(4)(A)(Repl. 2002) as "an accidental injury causing internal or external physical harm to the body ... arising out of and in the course of employment and which requires medical services or results in disability or death ... [and is] `accidental' only if caused by a specific incident and is identifiable by time and place of occurrence." An employee who has suffered a scheduled injury is to receive temporary total or temporary partial disability benefits during his healing period or until he returns to work, regardless of whether he has demonstrated that he is actually incapacitated from earning wages. Wheeler v. Constr. Co. v. Armstrong, 73 Ark. App. 146, 41 S.W.3d 822 (2001). Scheduled injuries are different from unscheduled injuries in that the award for a scheduled injury generally is limited to the benefits provided for that particular scheduled injury. Risper, supra.

Appellant began working for appellee, Creative Foods, in November 1999. On January 4, 2000, appellant was injured when six to eight cans, each weighing seventeen pounds, fell on her left hand and arm. Appellant was initially treated by Dr. Rhodes who referred her to Dr. Joseph Yao, an orthopedic surgeon. After Dr. Yao performed a left carpal-tunnel surgery in March of 2000, the hand began to cramp and draw. Thereafter, appellant did not return to work, and on September 22, 2000, Dr. Yao performed a left elbow ulnar nerve anterior subcutaneous decompression on appellant. According to appellant, the second surgery did not improve her condition, and she complained that her hand had become worse. She was unable to work at her assigned job that required her to lift fifty-pound boxes and thirty-pound buckets. Ultimately, appellant received additional medical treatment from Dr. Earl Peeples and Dr. Riley Jones.

In letters written to appellee, American Interstate Insurance, regarding appellant's condition on April 12, May 3, May 24, and June 14, 2000, Dr. Yao recommended that appellant receive temporary disability benefits while waiting for left ulnar nerve decompression, which was performed on September 22, 2000. After the surgery, Dr. Yao recommended that appellant continue working on passive finger stretching exercises and noted that her left elbow incisional wound was healing well. In October 2000, Dr. Yao recommended physical therapy for her left elbow and hand motion exercises to relieve stiffness. On November 13, 2000, Dr. Yao noted that appellant's main problem was the stiffness in her left hand in the ring and small fingers. In January of 2001, Dr. Yao recommended a hand-surgery evaluation for the two fingers and noted that appellant could perform light duty work with no forceful use of the left hand.

Dr. Earl Peeples performed radiographs of appellant's hand and wrist on May 17, 2001, and noted that they did not suggest major dystrophy or bony abnormality. Dr. Peeples stated that there was "evidence of significant soft tissue contracture related to the ulnar innervated muscles the left upper extremity and a very severe claw deformity" and suggested that the EMG nerve conduction testing be repeated to test for damage to the ulnar nerve. On August 7, 2001, Dr. Peeples opined that appellant had a "permanent impairment of function complete functional loss of the little and ring finger, which represents 20% of the hand." Further, Dr. Peeples stated that due to the "additional loss of range of motion of the wrist and converting from hand to upper extremity," he would rate appellant's total impairment of function as 25% to the upper extremity.

Dr. Riley Jones performed an independent medical examination on October 15, 2001, and opined that appellant had 100% disability to the ring finger "based on the charts in the Fifth Edition of AMA Guide" and 92% to the little finger. Further, he stated that the impairment to the two fingers equated to 19% impairment to the hand according to the additive tables. Dr. Jones recommended that appellant perform light duty work and undergo a functional capacity evaluation.

The Commission adopted the opinion of the ALJ, which stated that appellant's claim for permanent and total disability benefits for her scheduled injury was governed by Arkansas Code Annotated section 11-9-521(g)(Repl. 2002). That section states that an employee suffering a scheduled injury shall not be entitled to permanent partial disability benefits over and above the impairment rating except as provided in section 11-9-519(b). Arkansas Code Annotated section 11-9-519(b) states, "In the absence of clear and convincing proof to the contrary, the loss of both hands, both arms, both legs, both eyes, or of any two (2) thereof shall constitute permanent total disability."

In accordance with section 11-9-519(b), the Commission found because appellant had lost only the use of her left hand, she was not entitled to permanent and total disability benefits, and, further, she is limited to the permanent partial disability benefits associated with the permanent impairment ratings assigned. In making this finding, the Commission noted Dr. Peeples's August 7, 2001, report, in which he stated:

It is my opinion that the patient has a permanent impairment of function complete with functional loss of the little and ring finger, which represents 20% of the hand. Due to additional loss of range of motion of the wrist and converting from hand to upper extremity, I would rate the patient's total impairment of function as 25% of the upper extremity.

Appellant argues that the Commission erred in its finding that appellant cannot be awarded permanent and total disability benefits because she suffered only one scheduled injury. Appellant asserts that strict construction of section 11-9-521(g)1 requires a finding that the statute does not address or restrict permanent and total disability benefits. Appellant contends that as a result of her injury she is entitled to an award of permanent and total disability benefits and that the limitations set out in section 11-9-521(g) do not apply to her. Further, appellant argues that because the Commission erroneously interpreted Ark. Code Ann. §§ 11-9-519(b) and 11-9-521(g), her claim for permanent and total disability was not properly considered.

Appellant's first and second arguments are so interrelated that we address them as one argument. Here, the medical evidence demonstrates that appellant lost the use of her ring finger and small finger on her left hand. Appellant's treating physician, Dr. Yao, stated that appellant could return to light duty work with no forceful use of her left hand. Dr. Peeples stated that appellant could return to limited-duty work and gave appellant a 20% impairment rating to her left hand. In addition, Dr. Peeples opined that appellant had an additional loss of range of motion of the wrist and converted her disability rating from 20% to the hand to 25% to the upper extremity. Dr. Jones, who performed an independent medical examination, also stated that appellant could return to light duty work and assigned her a 19% impairment rating to the left hand.

The Commission, by its adoption of the ALJ's opinion, denied appellant's claim for total and permanent disability and awarded her a 20% permanent impairment to her left hand. Although appellant testified that she was 53 years old and only had a tenth-grade education and had not been offered vocational rehabilitation, the Commission determined that her injury was governed by Ark. Code Ann. § 11-9-521(a)(9) and (10)(2001). Appellant argued before the Commission and on appeal that she was entitled to permanent and total disability benefits and that the Commission limited her disability by applying Ark. Code Ann. § 11-9-521. We agree with the Commission, and thus, the evidence relating to appellant's age, education, and work experience is not considered in determining the percentage of total and permanent disability suffered by appellant. Anchor Const. Co. v. Rice, 252 Ark. 460, 479 S.W.2d 573 (1972).

Appellant's hand injury falls under the scheduled-permanent injury category as set forth in Ark. Code Ann. § 11-9-521. We have held that partial permanent impairments that fall within the scheduled-injury category limits a claimant to the scheduled benefits. Risper, supra. Appellant, having failed to establish permanent and total disability is limited to the scheduled benefits.

For her last point, appellant argues that the Commission erred in determining that her permanent impairment rating should be limited to 20% to her left hand. Appellant contends that substantial medical evidence existed for the Commission to determine that Dr. Peeple's 25% impairment rating of appellant's upper extremity was correct. Appellant noted that Dr. Peeples treated her on May 17, 2001, and on August 7, 2001, and the extensive medical reports were sufficient to establish substantial evidence that she suffered a 25% permanent impairment to her upper extremity of her left arm. Appellant states that Dr. Peeples noted in both the May and August reports that he visually observed her loss of range of motion and that Dr. Peeples's August report was detailed and comprehensive in regard to his assessment to her impairment of the upper extremity.

Although the Commission adopted Dr. Peeples's assessment that appellant suffered a 20% impairment of her hand, the Commission found that there was insufficient evidence to support a 25% impairment rating to the upper extremity because Dr. Peeples did not elaborate on his basis for determining the loss of range of motion.

In his May 17 report, Dr. Peeples stated:

The left wrist extends and flexes 45 degrees, less than would be anticipated. The patient has decreased two point discrimination over the ulnar distribution. The remainder of the arm shows good range of motion of the elbow and shoulder.

This patient has evidence of significant soft tissue contracture related to the ulnar innervated muscles of the left upper extremity and a very severe claw deformity.

In his August 7 report, Dr. Peeples stated:

The patient continues to have complaints of stiffness in the wrist and displays about 45 degrees range of motion, both in flexion and extension. I cannot, again, explain all of these findings on a physical basis.

. . .

Due to additional loss of range of motion of the wrist and converting from hand to upper extremity, I would rate the patient's total impairment of function as 25% of the upper extremity.

Arkansas Code Annotated section 11-9-102(4)(D)(Repl. 2002), states that a "compensable injury must be established by medical evidence supported by objective findings as defined in subdivision (16) of this section." Arkansas Code Annotated section 11-9-102(16)(Repl. 2002) provides in relevant part:

(16)(A)(I) "Objective findings" are those findings which cannot come under the voluntary control of the patient.

(ii) When determining physical or anatomical impairment, neither a physician, any other medical provider, an administrative law judge, the Workers' Compensation Commission, nor the courts may consider complaints of pain; for the purpose of making physical or anatomical impairment ratings to the spine, straight-leg-raising tests or range-of-motion tests shall not be considered objective findings.

(B) Medical opinions addressing compensability and permanent impairment must be stated within a reasonable degree of medical certainty[.]

Here, there was no evidence other than Dr. Peeples's mention in his August report that appellant should be assessed a 25% impairment rating to the upper extremity. The Commission has the authority to accept or reject medical evidence and testimony. Hill, supra. We review the question of appellant's impairment rating based on a substantial evidence standard. Brock, supra. In Duke v. Regis Hairstylists, 55 Ark. App. 327, 330, 935 S.W.2d 600, 602 (1996), this court stated:

Based on our view of the evidence, we hold that the Commission correctly found that the appellant failed to establish her injury with medical evidence supported by objective findings. The results of each of the tests performed by Dr. Peeples were based on the patient's description of the sensations produced by various stimuli. Such descriptions are clearly under the voluntary control of the patient and therefore, by statutory definition, do no constitute objective findings. [citation omitted]

In the case at bar, the medical opinion of Dr. Peeples was not supported by objective medical evidence; thus, we hold that there is substantial evidence to affirm the findings of the Commission.

Affimed.

Neal and Baker, JJ., agree.

1 Arkansas Code Annotated section 11-9-521(g) states that "any employee suffering a scheduled injury shall not be entitled to permanent partial disability benefits in excess of the percentage of permanent physical impairment set forth above except as other provided in § 11-9-519(b)."