Wayne Smith Trucking, Inc. v. McWilliams

• Decision Date: 01 June 2011
• Docket Number: No. CA 10–1232.,CA 10–1232.
• Citation: 2011 Ark. App. 414,384 S.W.3d 561
• Parties: WAYNE SMITH TRUCKING, INC., And Arkansas Trucking Association, Appellants v. Dan McWILLIAMS, Appellee.
• Court: Arkansas Court of Appeals

2011 Ark. App. 414

384 S.W.3d 561

WAYNE SMITH TRUCKING, INC., And Arkansas Trucking Association, Appellants

v.Dan McWILLIAMS, Appellee.

No. CA 10–1232.

Court of Appeals of Arkansas.

June 1, 2011.

Melissa Faye Wood, Little Rock, for appellants.

Thomas W. Mickel, Conway, for appellee.

DAVID M. GLOVER, Judge.

[Ark. App. 1]Appellee Dan McWilliams suffered an admittedly compensable injury on April 13, 2008, while tightening a nylon strap on a load of baled cardboard; the strap broke, causing him to fall and strike his head on one of the trailer's dolly legs. He suffered a laceration from the midline of his forehead to just below his hairline toward his left ear. The laceration required nineteen stitches and left a scar across McWilliams's forehead.

McWilliams filed a claim for permanent-disability benefits.¹ At the hearing, the parties stipulated that McWilliams had sustained a compensable injury on April 13, 2008; that appellants had paid all medical expenses to date; that McWilliams's healing period had ended on or before September 14, 2009; that appellants had paid the maximum [Ark. App. 2]disfigurement benefits of $3500; and that appellants controverted McWilliams's entitlement to permanent-disability benefits.

McWilliams was the only witness at the hearing on his claim for permanent-disability benefits. He said that he did not lose consciousness when the accident occurred, but that he was hurting “pretty bad” when he got up from the ground. He was initially treated at a local hospital, where the laceration was sewn up; he underwent a CT scan three days later in Morrilton where he was seen by Dr. Joel Milligan, his family doctor, who took him off work for five days. McWilliams denied having headaches prior to his injury, but testified that since his injury, he has been having headaches toward the left side of his forehead, just a little above the scar. He testified that sometimes he had headaches every day, but other times he might go a day or two without having a headache. He testified that the headaches did not affect his vision or hearing, but he stated that on occasion they got intense enough that he had to stop and lie down to reduce the symptoms. According to him, that cut into his fourteen-hour workdays.

McWilliams testified that Dr. Milligan sent him to Dr. Reginald Rutherford due to his persistent headaches; that Dr. Rutherford prescribed Carbatrol for his headaches; and that he sees Dr. Rutherford every three months or so. While he was satisfied with Dr. Rutherford's treatment, he testified that he still could not get rid of his headaches. McWilliams agreed that he told Dr. Milligan that he only had headaches when he put pressure on the area of the scar. According to him, that statement was correct when he told Dr. Milligan, but he also testified that he cannot lie on that part of his head and that [Ark. App. 3]he cannot wear a hard hat (which he was required to do at some of the locations to which he traveled). McWilliams testified that he had passed his DOT physical on February 16, 2009, but that it was noted in his health history that he had headaches. McWilliams stated that he believed the headaches had become worse since April 2008, and that although the medication prescribed by Dr. Rutherford had helped alleviate the number of headaches, it did not prevent the headaches.

Medical records introduced at the hearing indicate that McWilliams underwent a CT head scan at St. Anthony's Medical Center in Morrilton on April 16, 2008. This report noted:

FINDINGS: Focal laceration is noted at the left frontal scalp. No fracture, intracranial hemorrhage, contusion, or other brain parenchymal abnormality is seen. No extraaxial fluid collection or midline shift. There is a regular fatty deposition and coarse calcification along the superior and anterior falx. The corpus callosum appears to be incompletely developed, especially related to the posterior aspect. No other definite congenital abnormality is identified. The fatty regions are midline and do not appear to be positioned in a nondependent manner to suggest free-floating fat. They are not present in the lateral ventricles, third ventricle, basilar cisterns, or fourth ventricle. Some are positioned in the region of the absent posterior corpus callosum. No other abnormalities are identified. No fracture is seen. Visualized aspects of the sinuses and orbits are unremarkable.

IMPRESSION:

1. No acute intracranial abnormality.

2. Incomplete corpus callosum and fatty midline tissue with dense coarse calcifications, is a congenital variant. This does not appear to be due to free-floating fatty tissues as can be seen with a ruptured dermoid. However, if the patient has history of chronic headaches or recurrent headaches, further evaluation could be performed with MRI of the brain and MRI of the spine.

A March 2, 2009 progress note from Dr. Rutherford indicated that McWilliams's CT imaging of the head was normal, but that he had persisting sensory loss [Ark. App. 4]and neuropathic-pattern pain at the site of the scalp laceration; that the laceration was well healed; and that there was no impairment of motor function for the frontalis muscle. Dr. Rutherford recommended 200 mg of Carbatrol twice per day and Tegretol. A March 23, 2009 progress note from Dr. Rutherford indicated that McWilliams reported the Tegretol to be of benefit pertaining to diminished neuropathic pain; that it was well tolerated at a level of 5.5, which is low therapeutic; and that the Carbatrol 200 mg twice per day would be continued.

A September 14, 2009 progress note from Dr. Rutherford indicated that McWilliams reported continuing pain and sensory loss in the left frontal region, which was a permanent aftermath of the injury, and that he was at maximum medical improvement. It also designated that he had a fourteen-percent impairment of the whole person as derived from Table IX on page 145 of the Fourth Edition AMA Guides to the Evaluation of Permanent Impairment.

On September 24, 2009, Shy Cox (a registered-nurse medical consultant with Medical Case Management of Arkansas, Inc.) requested that Dr. Rutherford state any/all objective findings to support the stated impairment rating, to which Dr. Rutherford replied that it was based upon clinical exams. Appellants' counsel also inquired about his findings used to support the permanent-impairment rating—she assumed that the clinical examination was only based on subjective complaints of pain and headaches in addition to the altered sensation identified by McWilliams during the evaluation. Dr. Rutherford [Ark. App. 5]replied, “The impairment rating is based upon complaints of pain and sensory loss related to laceration left forehead. This is related to peripheral nerve injury secondary to laceration involving the first division of the trigeminal nerve.” ² Appellants' counsel then further responded that the impairment rating must be supported by objective findings, which she had been unable to identify. She observed that while Dr. Rutherford's letter referenced peripheral-nerve injury secondary to the laceration, she did not see that an EMG or a nerve-conduction-velocity test was performed to document that damage. Dr. Rutherford again responded that an EMG/NCV was not possible for the nerve involved and that his diagnosis was based on history and examination.

In an opinion filed June 23, 2010, the administrative law judge found that McWilliams had proven by a preponderance of the credible evidence that he was entitled to a six-percent impairment to the body as a whole, which was supported by objective findings. The ALJ noted that McWilliams was an extremely credible witness (even though the issue of his entitlement to permanent-impairment benefits turned primarily on the medical evidence rather than McWilliams's credibility); he also noted that Dr. Rutherford's impairment rating was derived from the Fourth Edition AMA Guides to the[Ark. App. 6]Evaluation of Permanent Impairment, Table IX. In his opinion, the ALJ cited from the Guides to the Evaluation of Permanent Impairment, 145 (4th Ed.1993):

The trigeminal nerve (cranial nerve V) is a mixed nerve having sensory fibers to the face, cornea, anterior scalp, nasal and oral cavities, tongue, and the supratentorial dura mater. The nerve also transmits motor impulses to the muscles of mastication.

Sensation in the parts served by the three major divisions of the trigeminal nerve is tested with the usual techniques for evaluating sensation, that is, pain, temperature, and touch; the two sides of the face or body are compared. Bilateral loss of facial sensation is uncommon. An impairment percentage for loss of sensation involving the trigeminal nerve is combined with an estimated impairment percentage for pain or motor loss.

Using the information contained in Table IX, the ALJ found that Dr. Rutherford had concluded McWilliams sustained mild impairment due to uncontrolled facial-neurologic pain and assigned him the maximumimpairment permitted for mild impairment without clarifying the basis for his determination. However, the ALJ further noted that McWilliams was able to work seventy hours per week, referencing McWilliams's testimony that, while the medication prescribed by Dr. Rutherford did not prevent his headaches, it had reduced them from occurring daily to occurring only two to three times per week.

The ALJ cited Singleton v. City of Pine Bluff (Singleton II), 102 Ark.App. 305, 285 S.W.3d 253 (2008), for our court's holding that claimants are entitled to an impairment rating if there are objective findings that support it even if the AMA Guides to the Evaluation of Permanent Impairment (4th Ed.1993) do not contain any express method of [Ark. App. 7]rating an injury that is compensable pursuant to Arkansas law. In this regard, the ALJ found that there were definitely observable, objective findings in the claim, notwithstanding McWilliams's post-concussive headache syndrome...