Date: 01-18-2022

Case Style:

Myers v. City of Rockport

Case Number: CV-15-590

Judge: ROBERT J. GLADWIN

Court:

ARKANSAS COURT OF APPEALS
On appeal from The ARKANSAS WORKERS’ COMPENSATION COMMISSION

Plaintiff's Attorney: Sherri Arman McDonough

Defendant's Attorney:

Little Rock. AR - Best Workers’ Compensation
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Little Rock, AR - Workers’ Compensation lawyer represented party on a Arkansas Workers’ Compensation claim.

At the hearing on the issues of compensability of appellant’s head injury, the date he
reached the end of his healing period, entitlement to additional temporary total-disability
benefits (TTD) from February 2012 until March 2013, and entitlement to permanent totaldisability benefits (PTD) or additional wage-loss benefits, appellant claimed that on April 1,
Cite as 2015 Ark. App. 710
2010, while working as a police officer for appellee, City of Rockport (the City), he
injured both shoulders and sustained a closed-head injury in an automobile accident.
Appellant alleged that he was permanently and totally disabled or was entitled to additional
wage loss as a result of his injuries. He also claimed that he had reached the end of his healing
period on March 11, 2013.
In the accident, a full-sized pickup truck struck appellant’s vehicle. The people in the
pickup were killed on impact. Appellant’s car spun multiple times before striking a cinderblock wall. The initial treating surgeon, Dr. Lorio, reported on April 8, 2010, that appellant
had injured his right shoulder. Dr. Lorio did not report any symptoms or signs of injury
related to appellant’s head. Dr. Lorio specifically noted, “Patient is a thirty-four-year-old
police officer who was in an MVA injuring his shoulder and MRI confirmed a rotator cuff
tear and AC arthrosis.” Dr. Lorio performed right-shoulder surgery on April 16, 2010.
On June 8, 2011, over one year following the compensable injury, appellant informed
Dr. Lorio that he was suffering from symptoms in his left shoulder. There was no indication
of a head injury. Dr. Lorio noted appellant’s complaints of “whole body soreness” following
the April 1, 2010 accident, but Dr. Lorio did not report an injury to appellant’s head. Dr.
Lorio performed left-shoulder surgery in October 2011 and eventually assigned a permanent
rating for appellant’s left shoulder. Dr. Lorio opined on February 1, 2012, that appellant had
reached maximum medical improvement (MMI).
Appellant claimed that he began having headaches after the accident. Appellant first
saw Dr. Baskin on December 10, 2012, and had a brain MRI on February 21, 2013. On
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March 11, 2013, Dr. Baskin noted the finding on the MRI that he believed represented
scarring and stated that appellant was at the end of his healing period.
On referral from Dr. Baskin, neuropsychologist Dr. A.J. Zolten examined appellant
on February 11, 2013, and explained in a report of that date and a supplemental report dated
March 13, 2014, how appellant’s measured cognitive deficits were related to a coupcontracoup injury and the finding on the MRI.
The City sent appellant for a vocational rehabilitation assessment on September 11,
2013. The vocational-rehabilitation consultant, Heather Taylor, stated that it was unlikely
appellant would ever be able to return to competitive employment. The City controverted
the compensability of appellant’s closed-head injury, contending that the injury to appellant’s
brain was not supported by objective findings. The City claimed that appellant was not
permanently and totally disabled but that, due to his shoulder injuries, he sustained wage-loss
disability of thirteen percent. The City also contended that appellant’s healing period had
ended on February 1, 2012, and controverted his claim to additional TTD.
The ALJ found in favor of appellant, finding that he had proved by a preponderance
of the evidence that he had sustained a compensable brain injury, that he was permanently
and totally disabled, and that he was entitled to additional TTD from February 2012, to
March 11, 2013. The City appealed to the Workers’ Compensation Commission, and the
Commission found that appellant had not proved that he had sustained a compensable head
or brain injury and had not proved that he was permanently and totally disabled. Instead, the
Commission found that appellant had sustained wage-loss disability of thirty percent in excess
of his bilateral-shoulder ratings. The Commission stated as follows:
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In the present matter, there is no probative evidence of record corroborating Dr.
Zolten’s assertion that the claimant was suffering from cortical dysfunction resulting
from a “coup-contracoup” injury. Instead, the evidence of record demonstrates that
the claimant injured his right and left shoulders in the April 1, 2010 motor vehicle
accident. There is no evidence of record showing that the claimant also injured his
head. The information given an MRI examiner on February 21, 2013 was “history of
traumatic brain injury in April 2010.” Again, there is no probative evidence of record
demonstrating that the claimant suffered a traumatic brain injury on April 1, 2010.
Additionally, the record does not show that the finding of “a small focus of gliosis” in
the MRI was causally related to the April 1, 2010 motor vehicle accident. The
Commission recognizes the opinions of Dr. Baskin, including Dr. Baskin's
determination in July 2013 of “emotional and behavioral impairments” related to an
alleged traumatic brain injury. It is within the Commission’s province to weigh all of
the medical evidence and to determine what is most credible. Minnesota Mining & Mfg.
v. Baker, 337 Ark. 94, 989 S.W.2d 151 (1999). In the present matter, the record does
not show that the claimant injured his head or brain on April 1, 2010. The Full
Commission therefore assigns minimal evidentiary weight to the opinions of Dr.
Baskin and Dr. Zolten in the present matter.
Because the Commission found that appellant’s brain injury was not compensable,
appellant was not awarded the claimed additional TTD after the shoulder surgeon had
released him as being at MMI on February 1, 2012. A timely appeal followed.
II. Applicable Law
Arkansas Code Annotated section 11-9-508(a) (Repl. 2012) requires an employer to
provide an injured employee such medical services as may be reasonably necessary in
connection with the injury received by the employee. When the primary injury is shown to
have arisen out of and in the course of employment, the employer is responsible for any
natural consequence that flows from that injury. Ingram v. Tyson Mexican Original, 2015 Ark.
App. 519, at 5–6. However, for this rule to apply, the basic test is whether there is a causal
connection between the injury and the consequences of such. Id. The burden is on the
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employee to establish the necessary causal connection. Id. The determination of whether a
causal connection exists between two episodes is a question of fact for the Commission. Id.
On appeal in workers’ compensation cases, we view the evidence and all reasonable
inferences deducible therefrom in the light most favorable to the Commission’s findings and
will affirm if those findings are supported by substantial evidence. Id. Substantial evidence
means such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion. Id. The issue on appeal is not whether we might have reached a different result
or whether the evidence would have supported a contrary finding; if reasonable minds could
reach the Commission’s conclusion, we mustaffirm its decision. Id. Where a claim is denied,
the substantial-evidence standard requires us to affirm the Commission if its opinion displays
a substantial basis for the denial of relief. Id. It is the function of the Commission to
determine the credibility of the witnesses and the weight given to their testimony. Id. The
Commission is not required to believe the testimony of the claimant or any other witness, but
may accept and translate into findings of fact only those portions of the testimony it deems
worthy of belief. Id.
The Commission has the authority to accept or reject medical opinions, and its
resolution of the medical evidence has the force and effect of a jury verdict. Cossey v. Gary A.
Thomas Racing Stable, 2009 Ark. App. 666, 344 S.W.3d 684. The Commission is not bound
by a doctor’s opinion that is based largely on facts relayed to him by the claimant where there
is no sufficient independent knowledge upon which to corroborate the claimant’s claim. Id.
III. Compensability
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In a workers’ compensation case, the claimant has the burden of proving by a
preponderance of the evidence that his claim is compensable, i.e., that his injury was a result
of an accident that arose in the course of his employment, and that it grew out of, or resulted
from, the employment. Bates v. Frost Logging Co., 38 Ark. App. 36, 827 S.W.2d 664 (1992).
He must prove a causal connection between the work-related accidentand the later disabling
injury. Id. It is not essential, however, that the causal relationship between the accident and
disability be established by medical evidence. Gerber Prods. v. McDonald, 15 Ark. App. 226,
691 S.W.2d 879 (1985). Questions of causation in compensation cases must be answered in
light of the facts peculiar to each case, and the answer in one is of little aid to an answer in
another. Pace Corp. v. Burns, 251 Ark. 311, 472 S.W.2d 78 (1971).
Appellant argues that he presented evidence to prove by a preponderance that he
sustained a compensable injury. He recites the facts of the accident and claims that he began
to have headaches and cognitive issues after the accident, and they were not addressed until
December 10, 2012. Regardless of the fact that it was two years after the accident, he
maintains that he proved a compensable brain injury due to his accident. Arkansas Code
Annotated section 11-9-102(4)(D) requires that a compensable injury must be established by
medical evidence supported by objective findings. “Objective findings” are those findings
which cannot come under the voluntary control of the patient. Ark. Code Ann. § 11-9-
102(16)(A)(i).
Appellant contends that the only evidence of record demonstrated that his cognitive
deficits, which were supported by objective signs of injury, were caused by the accident. He
claims that no evidence exists to contradict any of the evidence he presented, and he claims
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that this is a notable fact lending credence and weight to his evidence. See Bates, supra. He
contends that the evidence was that he worked for four years at this job before the accident
and loved it, functioning at a high level. He tried to return after the accident and could not
due to his shoulders, and because his thoughts were “cloudy.” He admits that he did not see
Dr. Baskin for the headaches and cognitive difficulties until more than two years after the
accident but contends that he was addressing one problem at a time: right-shoulder surgery
April 16, 2010; June 8, 2011, left-shoulder surgery. He explains that it took time for the leftshoulder injury to become noticeable after the right shoulder was healing, as he was focused
on the right shoulder.
He contends that a similar rationale exists for the brain injury. He asserts that Dr.
Zoltan’s tests showed deficits consistent with a coup-contracoup brain injury.
Neuropsychological testing is not enough to establish the injury, Watson v. Tayco, Inc., 79 Ark.
App. 250, 86 S.W.3d 18 (2002); therefore, appellant points to Dr. Baskin’s record noting that
the test results were consistent with traumatic brain injury and his agreement to do an MRI.
Dr. Baskin also noted that if residual scarring were present, it would be consistent with
traumatic brain injury. The MRI revealed a “very small focus of high signal within the deep
white matter at the right frontal lobe felt to represent a small focus of gliosis of scarring.”
Appellant argues that this is an objective sign of injury, and this, combined with the
neuropsychological testing, constitutes objective findings. Appellant claims that these findings
and opinions were disregarded by the Commission.
The City argues that the Commission correctly determined that appellant did not
sustain a compensable injury to his brain. The City argues that Dr. Zolten’s conclusions were
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based largely on appellant’s response to test questions presented to him, the doctor’s
observations, and statements made by either appellant or his wife. The doctor noted that
appellant’s “thought processes were clear, logical and coherent” and that his “speech and
language skills were intact to observation.” The test results and answers all came from
responses made under appellant’s voluntary control. When asked to clarify any objective
findings of traumatic injury related to the motor-vehicle accident, the doctor responded that
while neuropsychology was an empirical science that utilized standardized techniques for
measuring functional brain capacity and injury, neuropsychology was inexact to the extent
that no direct measures of the brain are obtained, and therefore, the entire work of it is based
on the inference that observed functioning directly related to inferred brain functioning.
He said that his comments on the vector of injury were his best clinical estimate and
did not necessarily mean that the vector occurred or did not occur, or whether it was or was
not related to MRI findings because coup-contracoup injuries often generate bilateral
findings, and often the contracoup injury is more severe than the site of impact. Thus, he was
only guessing as to the cause of the MRI finding.
Dr. Baskin’s review of his medical records showed a normal head CT. The City notes
that the MRI revealed no acute finding of traumatic brain injury or residual accumulation of
cerebrospinal fluid in the ventricles of the brain. The MRI simply revealed to Dr. Baskin that
“this may represent a small focus of gliosis.” His opinion was not stated within a reasonable
degree of medical certainty. Arkansas Code Annotated section 11-9-102(16)(B) requires that
medical opinions addressing compensability and permanent impairment must be stated within
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a reasonable degree of medical certainty. City contends that the Commission gave the
appropriate weight to Dr. Zolten’s conclusions and guesswork, as well as to Dr. Baskin’s
opinions. Guesswork is not the standard.
Based on the evidence that there were no complaints regarding appellant’s head or
brain having been injured in the accident until more than two years following the event, and
there was no evidence that the MRI finding was related to appellant’s accident, reasonable
minds could have concluded, as the Commission did, that appellant did not prove the
necessary causal connection. Accordingly, we affirm on the issue of compensability.
IV. PTD
PTD 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). The employee bears the burden of proving the inability to earn
any meaningful wage. Ark. Code Ann. § 11-9-519(e)(2). 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). The wage-loss factor is the extent to which a compensable
injury has affected the claimant’s ability to earn a livelihood. Thompson v. Mountain Home Good
Samaritan Vill., 2014 Ark. App. 493, 442 S.W.3d 873.
Appellant contends that because the record supports the conclusion that he has a
compensable brain injury and that he cannot return to gainful employment, the Commission’s
decision that he is not permanently and totally disabled is not supported by substantial
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evidence. He argues that the only evidence of record demonstrates that he cannot sustain
gainful employment. The vocational-rehabilitation counselor described his limitations:
significant memory problems; poor concentration; word-finding deficits; communication
difficulties; inability to follow through with a task. He also has persistent fatigue and problems
with anger and social interaction. He asserts that his wife’s testimony corroborates the
counselor’s findings.
The City contends that appellant is not entitled to PTD but is entitled to the wage loss
determined by the Commission. The City argues that the preponderance of the evidence
clearly demonstrates that appellant is unable to return to work as a police officer but does not
show that he is unable to return to other employment other than for reasons allegedly
attributable to a traumatic brain injury. Because we have upheld the Commission’s
determination that appellant’s head-injury claim is not compensable, the wage-loss award is
affirmed.
V. TTD and Healing Period
Temporary total disability is appropriate during the healing period in which an
employee suffers a total incapacity to earn wages. Crawford v. Superior Indus., 2009 Ark. App.
738, 361 S.W.3d 290. The healing period is that period for healing of an accidental injury and
will continue until the employee is as far restored as the permanent character of his injury will
permit, and ends when the underlying condition causing the disability has become stable and
no treatment will improve that condition. Mad Butcher, Inc. v. Parker, 4 Ark. App. 124, 628
S.W.2d 582 (1982). The claimant has the burden to show by a preponderance of the evidence
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that he remains in the healing period. Hickman v. Kellogg, Brown & Root, 372 Ark. 501, 277
S.W.3d 591(2008).
Appellantargues that Dr. Lorio released him as having reached MMI on his shoulders
on February 1, 2012. After that, his only medical attention was for his brain injury. Thus,
the date his healing period ended should be determined by the compensability of his brain
injury. Because we affirm the Commission’s denial of compensability, we must also affirm
its decision that appellant’s healing period ended on February 1, 2012.

Outcome: Affirmed

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