Wayne Smith Trucking, Inc. v. McWilliams

RITA W. GRUBER, Judge,

concurring.

I fully agree with the majority’s decision to affirm the Commission’s permanent-impairment rating in this case. I write separately to caution that our decision must not be interpreted to mean that a scar, in and of itself, 11finecessarily constitutes an objective finding sufficient to support the existence of physical impairment.

The Commission found that “the scar on Mr. McWilliams’s forehead and injury to the trigeminal nerve” constituted objective medical evidence to support an impairment rating. (Emphasis added.) It noted Dr. Rutherford’s statement in a letter to appellant’s attorney that the rating was “based upon complaints of pain and sensory loss related to laceration left forehead. This is related to peripheral nerve injury secondary to the laceration involving the first division of the trigeminal nerve.” The Commission also noted Dr. Rutherford’s office entry that Mr. McWilliams had “persisting sensory loss and neuro-pathic pattern pain at the site of scalp laceration” some eleven months after his head injury, and the testimony of Mr. McWilliams, an “extremely credible” witness, that he seldom had headaches before.

I emphasize my viewpoint that the scar in and of itself does not constitute substantial evidence to support the Commission’s conclusion that objective medical findings supported an impairment rating. Substantial evidence can be found, however, from the location of the scar at the site of the forehead laceration; Dr. Rutherford’s medical explanation of the relationship between pain and sensory loss, the laceration, and peripheral nerve injury secondary to laceration of the trigeminal nerve; and Mr. McWilliams’s history of an absence of headache problems until after the head injury. Credibility, including the credibility of medical opinions that an injury resulted in |17anatomical impairment, is a matter for the Commission to determine. Singleton v. City of Pine Bluff, 97 Ark. App. 59, 244 S.W.3d 709 (2006).

For the above reasons, I concur in the majority’s decision.