Coleman v. Pro Transportation, Inc.

Robert J. Gladwin, Judge,

dissenting. The majority has lVc ..determined that it is in a better position to weigh the conflicting evidence in this case than the Workers’ Compensation Commission. This is not the function of this court; therefore, I dissent.

I agree with the majority on the four points in which they affirm the Commission, but I would also affirm on appellant’s permanent-impairment rating and wage-loss benefits. There is no dispute that appellant, John Coleman, was entitled to a permanent-impairment rating. Dr. Prychodko, in his report of October 8, 2003, stated that appellant had reached maximum-medical improvement. He also found that his lumbar impairment is DRE Category II (Guides to the Evaluation of Permanent Impairment, 4th Ed., Chpt. 3, p. 102) giving five percent to the whole person. The cervical impairment is also DRE Category II (Guides, Ch. 3, p. 104) at five percent. The other injuries have healed and are rated at zero percent. The combined whole-person impairment rating was ten percent. Later, during his deposition testimony, Dr. Prychodko raised appellant’s whole-person impairment rating to eleven percent. On November 11, 2003, Dr. Moore wrote that he had no quarrel with Dr. Prychodko’s findings. Subsequently, appellees’ attorney sent a letter to Dr. Moore, which stated:

Thank you for your file notes on Mr. Coleman dated November 11, 2003. However, this report does not answer the question regarding Mr. Coleman’s impairment rating according to Table 75. Please address this impairment rating pursuant to Table 75. Thank you. Dr. Moore.

In the margin of this letter is found the following handwritten note:

Table 75 AMA 4th Ed.
II A
Cx 0%
L 0%
B Cx 4%
L 5%
Average Cx 2%
L 254_PPD
J. Moore M.D.

The Commission weighed these notes along with the report of Dr. Prychodko and awarded appellant a permanent-impairment rating of four-and-a-half percent.

The majority concedes that “the medical evidence bearing on the issue of Coleman’s entitlement to the 11% rating is to some extent conflicting.” (Emphasis added.) The majority further states that an attorney for one party dictated how Dr. Moore should use the AMA guides. That is simply not supported by the record. Dr. Moore was asked to consider appellant’s impairment rating in light of Table 75. The majority seems to suggest that it is impermissible for the Commission to consider an answer given in response to a direct question from an attorney. Of course, this is how virtually all evidence is submitted to a finder of fact.

The majority next states that Dr. Moore’s handwritten notes, were “scribbled numbers[,] which can perhaps be read as an averaging of the impairment ratings resulting in a 414% rating.” The majority further states that Dr. Moore provides no further comment. These notes can be read in no other way than to find that Dr. Moore utilized Table 75 of the AMA guidelines, 4th edition, in assessing appellant’s impairment. Under subheading II A, he found cervical impairment of zero percent and lumbar impairment of zero percent, and under part B, he found cervical impairment of four percent and lumbar impairment at five percent. This equated to an average cervical impairment of two percent and average lumbar impairment of two-and-a-half percent.

The Commission is free to weigh this conflicting evidence and reach the decision it did, and we should not reverse if it is supported by substantial evidence. This court reviews a decision of the Workers’ Compensation Commission to determine if there is substantial evidence to support it. Rice v. Georgia Pac. Corp., 72 Ark. App. 148, 35 S.W.3d 328 (2000). Substantial evidence is that relevant evidence that a reasonable mind might accept as adequate to support a conclusion. Wheeler Constr. Co. v. Armstrong, 73 Ark. App. 146, 41 S.W.3d 822 (2001). We review the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission’s findings and we affirm if its findings are supportable by substantial evidence. Geo Specialty Chem., Inc. v. Clingan, 69 Ark. App. 369, 13 S.W.3d 218 (2000). This issue is not whether we might have reached a different decision or whether the evidence would have supported a contrary finding; instead, we affirm if reasonable minds could have reached the conclusion rendered by the Commission. Sharp Co. Sheriffs Dep’t v. Ozark Acres Improvem’t Dist., 75 Ark. App. 250, 57 S.W.3d 764 (2001).

In this case it is undisputed that the’appellant is entitled to a permanent-impairment rating. However, the majority admits that “the medical evidence bearing on the issue of Coleman’s entitlement to the 11% rating is to some extent conflicting.” I would defer to the Commission’s findings as to the weight to be afforded this conflicting evidence. As I would affirm the Commission’s finding as to the anatomical-impairment rating, I would also affirm on appellant’s wage-loss benefits.

Vaught, J., joins.