At least two judges think so.
The Arkansas Court of Appeals recently issued an opinion in Multi-Craft Contractors, Inc. v. Yousey, regarding a serious injury sustained at work. The issue before the Court was whether the evidence was sufficient for the Workers’ Compensation Commission to award permanent-impairment benefits for a brain injury.
Mr. Yousey was seriously injured in an accident on February 24, 2012. The accident took place when Yousey was unloading equipment for his employer, Multi-Craft Contractors, Inc. Yousey broke his cheekbones, nose, sinuses, jaw, and orbital bones, as well as a hand and foot. A neurologist testified that Yousey had the worst skull fracture he had ever seen. Yousey continues to suffer from headaches, memory loss, fascial numbness, and loss of his senses of taste and smell. A clinical psychologist found that, nearly two years after the accident, Yousey’s test results from a neuropsychological evaluation were consistent with traumatic head injury.
“Permanent impairment” has been defined as any permanent functional or anatomical loss remaining after the healing period has ended. By law, determination of the existence or extent of a physical impairment must be supported by objective and measurable physical or mental findings.
In this case, the majority reversed the commission’s decision awarding Yousey permanent-impairments for his brain. The Court wrote that Yousey’s fractures and pneumocephalus were objective findings to support an injury only to his skull or his head—not his brain. The Court noted that, under prior opinions, neuropsychological testing does not produce the “objective” findings required by Arkansas’s Workers’ Compensation Act. Thus, they did not believe that the evidence satisfied the statute’s requirement for objective findings to support a brain injury.
The concurring opinion “reluctantly” joined the majority decision and noted that it is undisputed that Yousey sustained serious work-related injuries, and that common sense supports the notion that those injuries were likely the cause of Yousey’s brain injury. However, without “objective” evidence, the concurring judge felt no choice but to join the majority. In conclusion, the judge asked that the legislature take a serious look at the objective requirement within the Worker’s Comp. Act.
Unlike the majority and concurrence, the dissenting judges would have affirmed the commission’s decision to award Yousey a “modest” permanent-impairment rating of 29%. The dissent wrote that the statute does not need to be rewritten; rather, the objective-findings bar has been raised too high by the Courts. The dissent wrote that the majority’s opinion creates a requirement that “a worker must apparently suffer a head injury gruesome enough to attract a hungry horde of Zombies before he or she can prevail before the commission and retain even a modest award on appeal.” The judge concluded: “unlike my colleagues, I don’t believe the General Assembly would bless such a result for the men, women, and families it represents.”
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