Lack of 'magic words' isn't fatal to validity of impairment rating

The Arkansas Court of Appeals upheld the Workers' Compensation Commission's finding that the claimant sustained 12 percent permanent physical impairment and 20 percent wage loss disability.

Case name: Averitt Express, Inc. v. Gilley, No. CA08-152 (Ark. Ct. App. 11/05/08).

What it means: In Arkansas, a physician's permanent impairment evaluation does not have to contain any "magic words" or cite the American Medical Association Guides to the Evaluation of Permanent Impairment. As long as the physician's impairment rating comports with the AMA Guides, the lack of specific language in the evaluation will not affect its validity.

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Summary: The claimant suffered a torn rotator cuff while working as a truck driver for the employer. His treating physician assigned 6 percent permanent impairment to the body as a whole. The orthopedic surgeon who performed an independent medical evaluation opined that the claimant suffered 12 percent permanent physical impairment.

The Court of Appeals upheld the administrative law judge's reliance on the surgeon's rating. "The opinion of a doctor who performs a one-time examination of the claimant can constitute substantial evidence of the Commission's opinion," the court said. It also found that the IME physician's failure to cite pertinent sections of the AMA Guides or use magic words in his evaluation did not affect the validity of the rating. The commission found that the AMA Guides supported the rating and the employer did not present evidence to the contrary.

The employer also argued that the claimant was not entitled to wage loss disability benefits because his treating physician released him to work without physical restrictions. The court explained that the commission is permitted to consider many factors in determining wage loss disability, including the claimant's age, education and work experience. The commission found credible the claimant's testimony that he was unable to continue his duties with the employer. Further, he was 59 years old at the time of the hearing, had spent most of his life driving long-haul trucks, and was unable to use his left arm for long periods of time.

December 2, 2008

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