                                 Cite as 2014 Ark. App. 493

                 ARKANSAS COURT OF APPEALS
                                         DIVISION I
                                        No. CV-14-51


GEORGE THOMPSON                                   Opinion Delivered   September 24, 2014
                               APPELLANT
                                                  APPEAL FROM THE ARKANSAS
V.                                                WORKERS’ COMPENSATION
                                                  COMMISSION
                                                  [NO. F509124]
MOUNTAIN HOME GOOD
SAMARITAN VILLAGE, SENTRY
INSURANCE COMPANY, AND
DEATH & PERMANENT TOTAL
DISABILITY TRUST FUND
                      APPELLEES                   AFFIRMED IN PART; REVERSED
                                                  AND REMANDED IN PART



                               RITA W. GRUBER, Judge

       George Thompson appeals the December 2013 decision of the Arkansas Workers’

Compensation Commission regarding his claim for additional benefits related to his 2005

compensable back injury. As his first point, he contends that the Commission disregarded

overwhelming evidence of his permanent and total disability. Second, and alternatively to the

first point, he contends that the ten-percent wage-loss award is unsupported by substantial

evidence and ignores his complete loss of earning potential. Third, he contends that

substantial evidence does not support the Commission’s finding that his impairment rating to

the body as a whole is merely five percent. Fourth and last, he challenges the constitutionality

of the Arkansas Workers’ Compensation Act. We reverse and remand for further findings on

point 3, remand for further consideration of point 2, and affirm points 1 and 4.
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        Thompson sustained his compensable injury in April 2005 while working in Good

Samaritan Village’s maintenance department and while lifting a large television. After

receiving conservative care and pain-management treatment from various physicians, he was

granted a change of physician to neurosurgeon Dr. Rebecca Barrett-Tuck and saw her in a

July 2006 office visit.    Respondents did not accept a ten-percent permanent partial-

impairment rating to the body as a whole assigned by Dr. Barrett-Tuck on September 16,

2008.

        At a May 1, 2013 hearing before an administrative law judge, the parties stipulated that

maximum medical improvement had been reached and the healing period had ended on

September 16, 2008. Controverted issues at the hearing included the ten-percent permanent

partial impairment rating assigned by Dr. Barrett-Tuck, additional medical treatment, and

permanent and total disability. Live testimony was given by Thompson; Mike Magee, his

friend, bowling and golfing companion, and pharmacist; Bill Koop, Thompson’s neighbor;

and Anita Hall, whom Thompson described as his “significant other.” Thompson’s medical

records, a vocational evaluation by Bob White, and depositions by Thompson and Dr.

Barrett-Tuck were also introduced into evidence. In his request for medical treatment,

Thompson explained that he had been unable to undergo any back surgery because of an

abdominal aneurysm and that he was receiving treatment for pain management from his

personal physician, Dr. Tim Paden.

        In a written decision, the law judge found that Thompson did not meet his burden of

proof that surgery was reasonable and necessary or that he was permanently and totally


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disabled. The law judge found that Thompson had proved entitlement to additional pain

management, including prescription medication and rhizotomies, as reasonable and necessary

medical treatment; a permanent partial-impairment rating of five percent to the body as a

whole; and ten-percent wage-loss-disability benefits over and above the five-percent

impairment rating. The Commission adopted and affirmed the law judge’s decision.

                     I. Denial of Claim for Permanent and Total Disability
                             II. Wage-Loss Award of Ten Percent

       Permanent total disability is defined by statute as the inability, because of compensable

injury or occupational disease, to earn any meaningful wages in the same or other

employment. Ark. Code Ann. § 11-9-519(e)(1) (Repl. 2012). The employee bears the burden

of proving the inability to earn any meaningful wage. Ark. Code Ann. § 11-9-519(e)(2)

(Repl. 2012). In considering claims for permanent partial-disability benefits in excess of the

percentage of permanent physical impairment, the Commission may take into account such

factors as the employee’s age, education, work experience, and other matters reasonably

expected to affect his or her future earning capacity. Ark. Code Ann. § 11-9-522(b)(1) (Repl.

2012). The wage-loss factor is the extent to which a compensable injury has affected the

claimant’s ability to earn a livelihood. Cross v. Crawford Cnty. Mem’l Hosp., 54 Ark. App. 130,

923 S.W.2d 886 (1996). Thompson contends that his compensable back injury rendered him

permanently and totally disabled. Alternatively, he argues that the ten-percent wage-loss

award is far too low and that an award of at least seventy-five percent is more reasonable.

       Thompson points to the opinion of Dr. Barrett-Tuck that he is permanently and

totally disabled and the opinion of Bob White that no jobs are available if he cannot work at

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Good Samaritan; the continuation of his intractable pain despite extensive conservative

treatment; all remaining medical records; and his and Magee’s testimony that he (Thompson)

cannot sustain prolonged standing or walking and is unable to engage in work or activities

such as golfing and bowling due to his pain, numbness, and need for pain medication. He

asserts that all his work experience involved physical labor that he now cannot perform; his

physical ability declined after his injury until he simply could not continue; and his chronic

pain and the medical findings corroborate the opinions of Dr. Barrett-Tuck and Mr. White

and the Social Security Administration’s finding that he is permanently and totally disabled.

He asserts that any lack of motivation he may have about returning to work is natural and

cannot reasonably be held against him and that the Commission’s reference to the lack of a

functional-capacity examination is an unreasonable, insufficient, and conjectural basis on

which to discredit the overwhelming majority of the evidence establishing permanent and

total disability.

        The Commission summarized Dr. Barrett-Tuck’s notes from March through

September 2008 as follows. On March 11, 2008, Thompson would “not be able to return

to work.” On May 14, 2008, his pain was stable and perhaps a bit better, he delayed plans

for a spinal-cord stimulation because he lacked insurance coverage; an Aspen posterior-fusion

device was seen as a good option should his pain persist, and a follow-up MRI was

recommended. On September 16, 2008, Dr. Barrett-Tuck wrote:

        He is still considering the possibility of a fusion in the future, but as it stands now he
        does not have any insurance to cover surgical intervention. I have recommended a
        10% impairment rating to the body as a whole in relation to the lifting injury that
        occurred several years ago . . . . He has disc bulges with resultant lateral recess stenosis

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       that we have discussed the possibility of a posterior fusion and clamping for treatment.
       He has also considered a spinal cord stimulator.

On the same date, she signed a pre-printed statement of her belief within a reasonable degree

of medical certainty that as a result of his work injury sustained at Good Samaritan, Thompson

was permanently and totally disabled and was entitled to the ten-percent impairment rating.

       The Commission also noted the February 16, 2008 report of Thompson by Bob

White, a vocational-evaluation specialist:

       For obvious reasons George Thompson states he has tried to keep his job and continue
       working as he recognizes that once he leaves, income, insurance, retirement all come
       into question. He also states his doctor, Rebecca Barrett-Tuck has encouraged him to
       leave for health reasons and possible further continued deterioration of his spinal
       problems related to returning to work.

               I have stated to George that I always encourage any individual to work as long
       as possible however, there comes a time when you must weigh continued employment
       against health issues and make a decision as to what is in your best interest in terms of
       quality of life issues. I do not have the answer to those questions-they must be decided
       between Mr. Thompson and his treating physician.
                                               ....
               Vocationally, if George and his doctor determine he should not continue in his
       job I have nothing to offer him from the standpoint of employment or related options.
       At age 58, with a 10th grade education, working in the area of painting and carpentry
       with light duty afforded him with his employer, if he cannot continue in this work,
       the combination of factors cited above will eliminate him from all jobs for which he
       might otherwise be qualified.

       The Commission observed that Thompson was sixty-three years old, had a tenth-grade

education and no GED, but could read, write, and do basic math. The Commission

summarized other evidence as follows:

       His work history before Good Samaritan included stints in construction—painting and
       carpentry—along with an extended job as a forklift driver. He worked for Good
       Samaritan for 19 years in the maintenance department. This position included the
       installation and/or removal of appliances, and helping at times with residents. His

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      compensable . . . injury in April 2005 occurred as the result of his lifting a large
      television. As documented above, he has undergone extensive conservative treatment
      and multiple diagnostic procedures. The only procedure [that] has given him lasting
      relief was a rhizotomy. As addressed [within this opinion, he has been] awarded
      additional treatment in this area. Dr. [Greg] Elders gave him an “interim” 20-pound
      lifting restriction pending a rating by his surgeon. While Dr. Barrett-Tuck at one point
      had him on a 25-pound restriction, she eventually opined that he was permanently and
      totally disabled and could no longer work. Claimant’s abdominal aortic aneurysm
      prevents him from undergoing surgical treatment; but . . . Dr. Barrett-Tuck is
      apparently not anxious to pursue that avenue anyway because Claimant’s lumbar
      condition is not severe enough to warrant it.

               Claimant resigned in March 2008 from Good Samaritan because, per his
      resignation letter, he had work restrictions and could not obtain a release from his
      doctor. But this does not comport with his testimony that he was still working there
      at this point. Furthermore, he admitted that he made no effort to obtain such a release.
      After his injury, he only worked at full duty for “just a short time,” and the heaviest
      thing he lifting [sic] during this time weighed around 75 pounds. While his hearing
      testimony was that following his injury, Good Samaritan only let him work a few
      hours each day, this conflicts with his deposition testimony.

              According to Claimant, he has problems standing. Numbness in his left leg
      results from standing too long. However, . . . shifting positions helps with this. He is
      taking medication, including Vicodin, for his pain. While he termed most of his days
      as “bad” ones, where his pain is 6/10 to 10/10, at another point he termed his
      maximum pain as 8/10. And again, he has been awarded additional pain management.

      The Commission noted the testimony of Thompson and others that he was still able

to drive, perform housework, and help care for Hall’s grandchildren. The Commission

credited Magee’s testimony that Thompson had golfed since his injury over Thompson’s

testimony to the contrary. However, the Commission found that Thompson’s testimony that

continual back pain had clearly curtailed his previous activities was corroborated by the

testimony of Magee, Hall, and Koop.

      The Commission observed that White was unable to opine whether Thompson could

continue in his former job at Good Samaritan but did opine that he would be unable to find

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other employment should he not be able to work there, and the Commission noted the lack

of a functional-capacity evaluation in evidence. Assessing the credibility of the evidence, the

Commission specifically stated that it did “not find” that Thompson was motivated to return

to the workforce.

       The Commission concluded that Thompson had not proved permanent and total

disability. Upon considering his age, education, work experience, the nature and extent of

his compensable injury, his permanent restriction, and other relevant factors, it found that he

had sustained a ten-percent impairment to his wage-earning capacity in excess of the five-

percent anatomical impairment to the body as a whole in connection with his compensable

lower back injury, which was the major cause of the wage-loss disability.

       When deciding any issue, administrative law judges and the Commission shall

determine whether the party having the burden of proof on the issue has established it by a

preponderance of evidence. Ark. Code Ann. § 11-9-705(a)(3) (Supp. 2011). We review the

evidence in the light most favorable to the findings of the Commission, and we will affirm if

those findings are supported by substantial evidence. Jordan v. Home Depot, Inc., 2013 Ark.

App. 572, 430 S.W.3d 136. Where the Commission denies benefits because the claimant

failed to meet his burden of proof, the substantial-evidence standard of review requires that

we affirm if the Commission’s decision displays a substantial basis for the denial of relief. Id.

       The issue on review is not whether the evidence would have supported a contrary

finding or whether we might have reached a different result; we affirm if reasonable minds

could reach the Commission’s conclusion. Sanchez v. Pork Grp., Inc., 2012 Ark. App. 570.


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We defer to the Commission on issues involving the weight of the evidence and the

credibility of the witnesses. Woodmancy v. Framco, Inc., 2011 Ark. App. 785, 387 S.W.3d 286.

The Commission may accept and translate into findings of fact only those portions of the

testimony it deems worthy of belief. Rheem Mfg., Inc. v. Bark, 97 Ark. App. 224, 245 S.W.3d

716 (2006).

       Here, the Commission’s denial of Thompson’s claim for permanent and total disability,

and its finding that he sustained only a ten-percent wage loss, turned on the Commission’s

assessment of the weight of the evidence and the credibility of witnesses. We hold that the

Commission’s decision displays a substantial basis for the denial of his claim for permanent and

total disability. We remand the wage-loss issue for the Commission to consider whether our

reversal of the five-percent impairment rating, see point 3, affects Thompson’s ability to earn

a livelihood and therefore affects the wage-loss factor.

                                    III. Impairment Rating

        “Permanent impairment” has been defined as “any permanent functional or

anatomical loss remaining after the healing period has ended.” Main v. Metals, 2010 Ark. App.

585, at 9, 377 S.W.3d 506, 511. Any determination of the existence or extent of physical

impairment must be supported by objective and measurable findings. Ark. Code Ann. § 11-

9-704(c)(1)(B) (Repl. 2012). Under Arkansas Code Annotated section 11-9-102(4)(F)(ii)

(Repl. 2012),

       (a) Permanent benefits shall be awarded only upon a determination that the
       compensable injury was the major cause of the disability or impairment.

       (b) If any compensable injury combines with a preexisting disease or condition or the

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       natural process of aging to cause or prolong disability or a need for treatment,
       permanent benefits shall be payable for the resultant condition only if the compensable
       injury is the major cause of the permanent disability or need for treatment.

The Commission is authorized to decide which portions of the medical evidence to credit

and to translate this evidence into a finding of permanent impairment using the American

Medical Association Guides; thus, the Commission may assess its own impairment rating

rather than rely solely on its determination of the validity of ratings assigned by physicians.

Firestone Bldg. Products v. Hopson, 2013 Ark. App. 618, 430 S.W.3d 162.

       Here, the Commission discussed Thompson’s entitlement to an impairment rating and

attendant permanent partial-disability benefits as follows:

               As discussed above, Dr. Barrett-Tuck assigned Claimant a rating of ten percent
       (10%) to the body as a whole. She stated that she utilized the AMA Guides in making
       this assignment, and that the bases for it are his annular tears.

              In Coleman v. Pro Transportation, 2006 AWCC 48, Claim No. F210837 (Full
       Commission Opinion filed March 14, 2006), rev’d on other grounds, 97 Ark. App.
       338, 249 S.W.3d 149 (2007), the Commission wrote:

              Even if the compensable injury was the major cause of the degenerative bulging
              and annular tear, there is no provision in the Guides for assigning permanent
              impairment based on an annular tear. Moreover, the Commission in previous
              cases has cited expert medical testimony indicating that an annular tear cannot
              form the basis for an impairment rating pursuant to the Guides.

       (Citations omitted.) As alluded to above, the Arkansas Court of Appeals reversed,
       finding that Claimant was entitled to a lumbar rating. Coleman v. Pro Transportation, 97
       Ark. App. 338, 249 S.W.3d 149 (2007). In so doing, however, the court did not reject
       the Commission’s holding that, standing alone, an annular tear cannot form the basis
       for a rating. Rather, the court credited the testimony of the opining physician that
       spondylosis (along with subjective findings, which the court stated were insufficient
       by themselves to support a rating) was present as well. Thus, the Court of Appeals’
       decision in Coleman is distinguishable from the case at hand. Claimant’s annular tear
       alone does not permit the awarding of an impairment rating, and permanent partial
       disability benefits therefor. But see Dokes v. Smart Style, 2012 Ark. App. 696

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       (“Appellant must prove that the annular tear resulted from the compensable injury
       before she is entitled to an impairment rating resulting from that tear . . . .”) Thus, [the
       Commission] cannot credit Dr. Barrett-Tuck’s finding on this matter.

               But Claimant also suffered what his 2005 MRI report described as a “mild
       right-sided foraminal bulge” at L4-5. The CT scan that year documented it as a “small
       broad-based disc bulge.” The 2007 MRI reflected a “very slight annular bulge” at this
       level. The 2010 CT scan and the 2011 MRI documented the bulge as well.

The Commission applied Dr. Barrett-Tuck’s finding that this bulge was caused at least in part

by Thompson’s work-related injury, and the Commission found that Thompson was entitled

to a five-percent rating under Table 75, Disorder II(B), for a disc lesion that is “[u]noperated

on, stable, with medically documented injury, pain, and rigidity associated with none to

minimal degenerative changes on structural tests such as . . . magnetic resonance imaging.”

The Commission also found that Thompson’s compensable back injury was the major cause

of his impairment.

       Thompson argues that the Commission improperly applied Table 75 by relying on

Disorder II(B) rather than Disorders II(C) and II(F), which assign higher impairment ratings

for moderate to severe degenerative changes and for multiple levels. Respondents argue that

there was no evidence that the annular tear—noted by Dr. Barrett-Tuck—resulted from his

compensable injury. They further argue that because Dr. Barrett-Tuck’s assignment of a

rating was improperly based on an annular tear, the Commission correctly disregarded it and

assigned its own impairment rating under Table 75 Disorder II(B).

       The Commission rejected Dr. Barrett-Tuck’s assignment of an impairment rating upon

the Commission’s finding that she relied solely on the presence of the annular tear. We

reverse this finding in light of her deposition testimony. She testified that the annular tear and

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disc protrusion were objectively related to the injury, that there was a combination of a tear

and degenerative changes, that the major cause of Thompson’s symptoms was his injury, and

that she considered the annular tears and disc bulge in assigning the impairment rating. In

light of this testimony, we remand to the Commission for further findings on the issue of

impairment. We also observe that an impairment rating may be based on annular tears only

if the tear resulted from the compensable injury. The determination of whether a causal

connection exists is a fact question for the Commission to determine. Dokes v. Smart Style,

2012 Ark. App. 696.

                                 IV. Constitutional Challenge

       The Commission denied Thompson’s “Motion to Recuse and Notice of Intent to

Introduce Evidence at Hearing,” in which he argued that the provisions of the Arkansas

Workers’ Compensation Act providing for the establishment of administrative law judges are

unconstitutional. The Commission correctly ruled that the points raised in the motion were

identical to those considered and rejected by this court in Long v. Wal-Mart Stores, Inc., 98

Ark. App. 70, 250 S.W.3d 263 (2007), that Thompson did not seek to distinguish Long or to

argue that it should be modified or overruled, and that the Act is constitutional. We direct

counsel’s attention once again to Long, and we again reject his arguments and affirm the

Commission’s decision affirming the constitutionality of the Act.

       Affirmed in part; reversed and remanded in part.
       WHITEAKER and VAUGHT, JJ., agree.
       Frederick S. “Rick” Spencer, for appellant.
       Micheal Alexander, for appellees.



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