dissenting.
The decision of the Workers’ Compensation Commission denying permanent partial disability to the appellant is supported by substantial evidence. Therefore, I dissent. The Commission found, “[I]n the present matter, the preponderance of the evidence does not support Dr. Bryan’s finding that the claimant sustained a 19% whole-person impairment,” “that the claimant did not prove by a preponderance of the evidence that the ... injury was the major cause of any percentage or degree of permanent physical impairment,” and that “the claimant did not prove that he sustained any percentage or degree of permanent physical impairment [that] was supported by objective and measurable physical findings.”
This seventy-two-year-old man had degenerative back problems before the com-pensable injury occurred. Everyone agrees that the step off the elevator aggravated the preexisting degenerative conditions. However, aggravating the symptoms and causing pain alone is not necessarily enough to cause a permanent-anatomical impairment. Both Drs. 17Kravetz and Bryan indicated that the x-rays and MRI showed no discernable anatomical change that could be attributed to the injury. Dr. Bryan, before being asked to give a rating, stated that he anticipated minimal or no permanent-partial impairment. When he gave the rating he attributed a portion of the rating to spon-dylolisthesis and a portion to degenerative-disc disease, neither of which were caused by or significantly effected by the injury. Both of these were observed by examinations before the injury.
The majority relies on Pollard v. Meridian Aggregates, 88 Ark.App. 1, 193 S.W.3d 738 (2004) and Leach v. Cooper Tire & Rubber Co., 2011 Ark.App. 571, 2011 WL 4477865, for the proposition that if the injury aggravated an otherwise asymptomatic preexisting condition, then any permanent impairment subsequently found would be attributable to the injury as the major cause. Both of these cases are distinguishable from the instant case. And insofar as Leach extends the language of Pollard beyond its facts, it is contrary to both statutory and established case law. In Pollard, the injury was significant enough to require surgery and there was discerna-ble anatomical impairment requiring a permanent rating. The only issue was whether the injury was the major cause. The Commission found that because the rating was based on the preexisting condition in a higher percentage than the injury, the injury was not the major cause. Our court reversed, holding that because the need for surgery and the resulting impairment would not have occurred but for the work-related aggravation, it was the major cause. Here, there was no need for surgery and no anatomical change.
In Leach, a back injury aggravated preexisting degeneration, just as in this case. But, in Leach, the MRI after the accident revealed a possible fracture and/or traumatic injury to |Rthe spine, and the doctor observed muscle spasms. Here, there was no new fracture and no new anatomical changes observed. The problem is that the language of Leach goes beyond the facts, and citing Pollard, makes a broad holding that the major cause requirement is satisfied where a compensable injury aggravates an asymptomatic preexisting condition such that the condition becomes symptomatic and requires treatment. Standing alone, this statement flies in the face of Arkansas Code Annotated section 11-9-102(14), which defines major cause as more than fifty percent of the cause. The supreme court has emphasized this threshold requirement by reversing our court in a case where we relied on Pollard. Hickman v. Kellogg, Brown, & Root, 872 Ark. 501, 277 S.W.3d 591 (2008). They held that even if surgery is required, the claimant still must prove that the injury is more than fifty percent of the cause of the needed medical treatment. Hickman, supra.
Mr. Wright was aging, and the tests both before and after the accident confirmed his degenerative conditions. While the injury aggravated the symptoms, it did not change the anatomy or cause any impairment beyond the normal process of aging. Substantial evidence supports the Commission’s decision, and I would affirm. Judge Gruber joins this opinion.