Department of Parks & Tourism v. Helms
In Department of Parks & Tourism v. Helms, 60 Ark. App. 110, 959 S.W.2d 749 (1998) the appellant sustained compensable work-related injuries to her shoulder, lower back, and head. She was eventually given a permanent impairment rating of seven percent for her shoulder, which correlated to a four-percent permanent impairment to the body as a whole, based upon active range-of-motion tests.
In reversing the Commission's decision, the Court stated:
"This was not an evaluation of spine impairment for which range-of-motion tests have been eliminated by Ark. Code Ann. 11-9-102(16)(A)(ii). However, appellee did bear the burden to prove physical or anatomical impairment by objective and measurable physical findings. Ark. Code Ann. 11-9-704 (c)(1)(B) (Repl. 1996). "Objective findings" are those findings that cannot come under the voluntary control of the patient. Ark. Code Ann. 11-9-102 (16)(A)(i) (Repl. 1996). . . . The legislature has eliminated range-of-motion tests as a basis for physical or anatomical impairment ratings to the spine by definition. It was incumbent upon the employee to present evidence that active range-of-motion tests are objective tests. In other words, it was incumbent upon her to present proof that those tests do not come under the voluntary control of the patient. She did not do so. In fact, there is authority to suggest that active range-of-motion tests are based almost entirely on the patient's cooperation and effort. See American Medical Association, Guidelines to the Evaluation of Permanent Impairment, (3d ed. 1988). . . . Because appellee did not present any objective physical findings to support the percentage of impairment to the body as a whole, we cannot uphold the Commission's decision on this point since it does not provide a substantial basis for its award." (60 Ark. App. at 115.)