Opinion
CLAIM NO. E303579
OPINION FILED JULY 8, 1996
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by NOYL HOUSTON, Attorney at Law, Jonesboro, Arkansas.
Respondent represented by CURTIS L. NEBBEN, Attorney at Law, Fayetteville, Arkansas.
Decision of Administrative Law Judge: Affirmed.
OPINION AND ORDER
Claimant appeals from a decision of the Administrative Law Judge filed September 15, 1995 finding that the claimant failed to prove by a preponderance of the evidence that his compensable injury resulted in either permanent anatomical impairment to the body as a whole or permanent hearing loss.
The claimant sustained a compensable injury on March 26, 1992 when he fell from scaffolding. The fall resulted in an injury to his neck, shoulder and back. The claimant's injuries were treated by several physicians, including a chiropractor. The claimant underwent numerous tests to include x-rays, a cervical CT scan, a cervical MRI and two separate EMG/NCV studies.
The x-rays and CT scans taken within the year following the claimant's compensable injury, and prior to the claimant's automobile accident revealed no fractures or dislocations. Dr. Ricca, a neurosurgeon, examined the claimant and viewed these studies. Dr. Ricca's March 3, 1993 report states:
I reviewed a CT scan of the cervical spine done at BMH Osceola on 2-8-93. This study reportedly showed a disc rupture, however, I was not able to appreciate that. The study included the entire cervical spine and the cuts were rather large. I cannot arrive at any significant conclusions from this study. . . I cannot explain the etiology of the patient's symptoms based upon my history and physical examination. The examination essentially is normal today except for sensory changes which do not fit with radicular brachial plexus or peripheral nerve pathology that I can identify. . .
At Dr. Ricca's request, the claimant underwent an MRI and EMG/NCV tests. After reviewing these diagnostic tests results, and after once again examining the claimant, Dr. Ricca noted:
Cervical spine MRI was done at SBRMC on 3-26-93. The sagittal T1 T2 weighted images included from the posterior fossa to the upper thoracic spine. These were normal. The patient had axial images from C4-T1. These were also normal.
The EMG/NCV of upper both extremities was done by Dr. Terry Braden on 3-29-93. This study was of good quality and reportedly showed some evidence of a right C6 radiculopathy without any acute changes. This can be seen in an old injury.
I cannot explain the etiology of the patient's complaints.
I cannot identify any neurosurgical pathology at this time.
On April 7, 1993 the claimant was examined by Dr. James Rodney Feild. Dr. Feild examined the claimant and noted:
On examination, there is no limitation of motion of the neck. Adson's maneuver is negative. Phelan's sign is negative. Reflexes and strength in the upper and lower extremities are normal. The thoracic spine moves normally, and is not tender.
In a report to the claimant's treating physician, Dr. Feild noted:
I was unable to find anything on Gerald L. Petty. It sounds like he has degenerative disease of the cervical spine. There is no evidence of carpal tunnel nor cervical disc. I gave him a prescription for Toradol, and suspect that symptomatic treatment is appropriate.
The claimant's impairment rating of 15-20% disability to the neck was assigned by his treating physician, Dr. S.R. Cullom, after the claimant had been involved in a nonwork-related automobile accident. Dr. Cullom's July 1, 1993 medical report states:
The diagnosis of his condition at that time was probable cervical disc syndrome versus cervical disc extrusion. I feel like this patient has a permanent 15% to 20% disability to the neck. He has stopped doing roofing which requires his swinging which certainly is tough on the shoulder girdle and the neck. I feel like he has suffered permanent disability and has had to alter the way he makes his living as a result of the injury.
Dr. Cullom further states in his December 3, 1993 report:
Due to this disability to the shoulder/neck area he will never be able to do roofing again, and can not lift more than 15-20 pounds. He also faces the probability of surgery due to this injury.
The claimant's injury occurred on March 26, 1992, therefore this claim is governed by the law in effect prior to the enactment of Act 796. The burden of proof rests upon Ringier America v. Comles, 41 Ark. App. 47, 849 S.W.2d 1 (1993). There is no presumption that a claim is indeed compensable. O.K. Processing, Inc. v. Servold, 265 Ark. 352, 578 S.W.2d 224 (1979). The party having the burden of proof on the issue must establish it by a preponderance of the evidence. Ark. Code Ann. § 11-9-704 (c)(2) (1986). In determining whether a claimant has sustained his or her burden of proof, the Commission shall weigh the evidence impartially, without giving the benefit of the doubt to either party. Ark. Code Ann. § 11-9-704; Wade v. Mr. C Cavenaugh's, 298 Ark. 363, 768 S.W.2d 521 (1989); and Fowler v. McHenry, 22 Ark. App. 196, 737 S.W.2d 663 (1987).
Ark. Code Ann. § 11-9-704 (c)(1)(1987) required that any determination of the existence or extent of physical impairment shall be supported by objective and measurable physical or mental findings. Dr. Cullom's reports assigning a 15-20% physical impairment rating do not meet this requirement. Dr. Cullom's report simply states, "The diagnosis of his condition at that time was probable cervical disc syndrome versus cervical disc extrusion." (Emphasis added.) A diagnosis of a probable condition without any supporting statements of objective and measurable physical or mental findings is not sufficient to award a permanent impairment.
While Dr. Lopez's report of a 15% permanent partial impairment rating based upon a nonoperative partial impairment rating based upon a nonoperative herniated cervical disc does state objective and physical findings, such findings are inconsistent with those findings of Dr. Ricca and Dr. Feild. Dr. Lopez did not examine the claimant until March 14, 1995. Both Dr. Ricca and Dr. Feild examined the claimant in the Spring of 1993. Subsequent to their examination, and prior to the examination of Dr. Lopez, the claimant was involved in an automobile accident. The MRI and EMG studies relied upon by Dr. Ricca and Dr. Feild were taken before the automobile accident and revealed normal findings. Moreover, Dr. Ricca and Dr. Feild both independently concluded after reviewing the CT scan, MRI and EMG studies and after examining the claimant that the claimant was not suffering from a herniated or bulging disc in his cervical spine. Prior to the automobile accident, the claimant was, at most, suffering from degenerative disease of the cervical spine. For these reasons, we find that the claimant has failed to prove by a preponderance of the evidence that he has sustained a physical impairment rating as a result of his 1992 compensable injury. The only ratings assigned are either not supported by objective and physical findings or are clearly contrary to the findings of Dr. Ricca and Dr. Feild.
The claimant also contends that he has suffered compensable hearing loss. Claimant alleges that his hearing loss began after his injury. Claimant first sought treatment from Dr. Woodward, an otolaryngologist for the hearing loss in June of 1994, two years after the compensable injury. Dr. Woodward took a history from the claimant in which the claimant denied any significant noise exposure or personal or family history of otologic disease. Based upon this history, Dr. Woodward stated that the claimant's 18% binaural hearing loss was "probably" post-traumatic. However, claimant did not introduce any evidence of his hearing levels prior to the alleged injury, nor was there any evidence introduced to show that the claimant's post accident hearing condition was stable and not progressive. Without such evidence, there is nothing in the record to compare with Dr. Woodward's results.
We find that the claimant has failed to meet his burden of proof on his claim for hearing loss. The record is void of any objective evidence of the claimant's hearing abilities prior to the accident. Dr. Woodward's opinion that the claimant's hearing loss was related to the fall was based solely upon the claimant's history as provided to Dr. Woodward by the claimant. A medical opinion based solely upon claimant's history and own subjective belief that a medical condition is related to a compensable injury is not a substitute for credible evidence. Brewer v. Paragould Housing Authority, FC Opinion filed Jan. 22, 1996 ( E417617). In order to find that the claimant has sustained a hearing loss as a result of his compensable injury, the benefit of the doubt would have to be given to the claimant. This is clearly impermissible. Fowler v. McHenry, 22 Ark. App. 196, 737 S.W.2d 633 (1987). Moreover, for the Commission to conclude that the claimant's hearing loss was a direct result of his compensable injury, this Commission would have to resort to speculation and conjecture. Conjecture and speculation, even if plausible, cannot take the place of proof. Ark. Dept. of Correction v. Glover, 35 Ark. App. 32, 812 S.W.2d 692 (1991).Dena Construction Co. v. Herndon, 264 Ark. 791, 575 S.W.2d 155 (1970). Arkansas Methodist Hospital v. Adams, 43 Ark. App. 1, 858 S.W.2d 125 (1993). Accordingly, we must deny the claimant's hearing loss claim. Based upon our de novo review of the entire record and for all the foregoing reasons, the decision of the Administrative Law Judge is affirmed.
IT IS SO ORDERED.
Commissioner Humphrey dissents.