BOYD v. MONTICELLO SCHOOL DISTRICT, 1996 AWCC 287


CLAIM NO. E110747

MACKIE BOYD, EMPLOYEE, CLAIMANT v. MONTICELLO SCHOOL DISTRICT, EMPLOYER, RESPONDENT NO. 1 and PUBLIC EMPLOYEE CLAIMS DIVISION, INSURANCE CARRIER, RESPONDENT NO. 1 and SECOND INJURY FUND, RESPONDENT NO. 2

Before the Arkansas Workers’ Compensation Commission
OPINION FILED NOVEMBER 21, 1996

Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.

Claimant represented by WILLIAM W. BENTON, Attorney at Law, Pine Bluff, Arkansas.

Respondents No. 1 represented by RICHARD S. SMITH, Attorney at Law, Little Rock, Arkansas.

Respondent No. 2 represented by MARK LONG, Attorney at Law, Little Rock, Arkansas.

Decision of Administrative Law Judge: Affirmed.

[1] OPINION AND ORDER
[2] Respondents No. 1 appeal an opinion of the Administrative Law Judge finding that claimant is permanently and totally disabled and that the Second Injury Fund has no liability in this claim.

[3] After our de novo review of the entire record, we find that claimant has met her burden of proving by a preponderance of the evidence that she is permanently and totally disabled. Additionally, we find that the Second Injury Fund does not have liability for compensation benefits. Accordingly, we affirm the opinion of the Administrative Law Judge.

[4] In determining the extent of permanent disability, the Commission may consider, in addition to the evidence of permanent anatomical impairment, claimant’s general health, age, education, work experience, attitude, interest in rehabilitation, degree of pain and any other matters reasonably expected to affect her future earning capacity. Ark. Code Ann. § 11-9-522 (b)(1) (Repl. 1996); Glass v.Edens, 233 Ark. 786, 346 S.W.2d 685 (1961); Oller v.Champion Parts Rebuilders, Inc., 5 Ark. App. 307, 635 S.W.2d 276 (1982); Arkansas Wood Products v. Atchley, 21 Ark. App. 138, 729 S.W.2d 428 (1987).

[5] Claimant is presently 60 years old. Although claimant is a high school graduate, she testified that she did not do very well in school. In fact, testing performed subsequent to the compensable injury revealed scores at the beginning of the 8th grade in reading, the beginning of the 4th grade in spelling and the end of the 4th grade in arithmetic. Claimant’s job history includes employment as a sewing machine operator, in a fiberglass boat manufacturing plant, at Wal-Mart in the lady’s wear department and as a cook for the employer in the present matter. These jobs involved extensive use of the upper extremities to reach and lift.

[6] On September 11, 1989, claimant sustained an admittedly compensable injury to her left shoulder while lifting cans of peanuts. She experienced immediate pain in her upper back and shoulder. Claimant eventually came under the care of Dr. John O. Lytle, an orthopedic surgeon, who performed three surgeries and one “procedure” on claimant’s left shoulder. By arthrogram Dr. Lytle diagnosed impingement syndrome of the left shoulder with a tear of the rotator cuff at the biceps groove. On March 26, 1990, Dr. Lytle performed arthroscopy for debridement of the anterior glenoid labrum, along with an impingement release and acromioplasty. In June 1990, claimant underwent manipulation under anesthesia for a frozen left shoulder. Claimant continued to experience residual pain and weakness in the upper extremity. She was released to return to work on August 23, 1990. However, on September 6, 1990, claimant reinjured her shoulder while lifting a mixing bowl. Thereafter, on November 23, 1990, Dr. Lytle performed open acromioplasty and an impingement release, along with debridement of the rotator cuff due to persistent popping in the subacromial space. The final surgery occurred in March 1994 for recurrent tear of the rotator cuff. This surgery involved exploration of the rotator cuff and repair of the longitudinal tear, a distal clavicle resection and a repeat acromioplasty. Dr. Lytle assigned claimant a permanent anatomical impairment rating of 15% to the body as a whole. Claimant has permanent restrictions concerning lifting and excessive use of the upper extremity, with an absolute restriction against overhead activities. She has been unable to work since her second injury in September 1990.

[7] Claimant’s left upper extremity remains weak and she experiences constant pain, which extends into the muscles of the upper back and causes headaches. She has significant limitations concerning any use of the left upper extremity. Further, claimant presented credible testimony that the difficulties with her left upper extremity would prevent her from performing any of her prior jobs or any other job for which she would be qualified.

[8] Additionally, Dr. H. Austin Grimes, an orthopedic surgeon who evaluated claimant’s left upper extremity, reported that “I do not think that the work she has done in the past is going to be practical for her to do in the future, even after she gets better. I think she is going to continue to have difficulty with the shoulder from now on.”

[9] Based on the above evidence concerning claimant’s loss in earning capacity, we find that claimant has presented a prima facie case that she falls within the odd-lot category, thereby shifting to respondents the burden of going forward with evidence that some kind of suitable work is regularly and continuously available to claimant. M. M.Cohn Co. v. Haile, 267 Ark. 734, 589 S.W.2d 600 (Ark.App. 1979). Claimant does not have to be “utterly helpless” in order to be entitled to benefits for total disability. While claimant may be able to work a small amount, the compensable injury restricts her to “services that are so limited in quality, dependability or quantity that a reasonably stable market for them does not exist.” Hyman v.Farmland Feed Mill, 24 Ark. App. 63, 748 S.W.2d 151
(1988).

[10] We find that respondents have presented insufficient evidence to overcome claimant’s prima facie
case. It is true that in 1993, Susanne Perrine, with Continental Rehabilitation Resources, Inc., purportedly located suitable jobs Dr. Lytle thought might be reasonable for claimant to attempt. However, claimant underwent another surgical procedure in March 1994, subsequent to this assessment. Further, in February 1995, Rehabilitation Management, Inc. evaluated claimant and reported that claimant’s “pain complaints and continued limitations related to the left arm and shoulder, in addition to her age (DOB 12/9/35; age 59), in conjunction with apparent lack of transferable skills, would appear to indicate that Ms. Boyd would not be a liable candidate for vocational rehabilitation and return to work planning.”

[11] Therefore, we find that claimant has proven by a preponderance of the evidence that the compensable injury has rendered her permanently and totally disabled.

[12] We realize that claimant experiences physical limitations or restrictions from conditions totally unrelated to her employment and that these would limit claimant’s ability to perform certain job functions. However, the greater weight of the evidence indicates that the shoulder injury alone would, and has, rendered her permanently and totally disabled. For this reason, we also find that the Second Injury Fund has no liability for compensation benefits.

[13] In Mid-State Construction Co. v. Second InjuryFund, 295 Ark. 1, 746 S.W.2d 539 (1988), the Arkansas Supreme Court set forth the test for determining Second Injury Fund liability.

It is clear that liability for the Fund comes into question only after three hurdles have been overcome. First, the employee must have suffered a compensable injury in his present place of employment. Second, prior to that injury the employee must have had a permanent partial disability or impairment. Third, the disability or impairment must have combined with the recent injury to produce the current disability status. (Original emphasis).

[14] The conditions which could possibly limit claimant’s ability to perform certain jobs functions include phlebitis, swelling and muscle spasms in her feet, a thyroid condition for which she takes medication, a melanoma near her right eye, and a back condition for which she had surgery in August 1991. However, even if any of these conditions would constitute a prior disability or impairment, which we do not find, the greater weight of the evidence indicates as discussed above, that the compensable injury to claimant’s left shoulder alone and of itself renders her permanently and totally disabled. Thus, the third element for Second Injury Fund liability has not been established.

[15] Accordingly, we affirm the opinion of the Administrative Law Judge finding that claimant is permanently and totally disabled. Additionally, we find that the Second Injury Fund has no liability for compensation benefits. Respondent No. 1 is directed to comply with the award set forth in the opinion of the Administrative Law Judge. All accrued benefits shall be paid in a lump sum without discount and with interest thereon at the lawful rate from the date of the opinion of the Administrative Law Judge. For prevailing on this appeal before the Commission, claimant’s attorney is hereby awarded an additional attorney’s fee in the amount of $250.00.

[16] IT IS SO ORDERED.

JAMES W. DANIEL, Chairman PAT WEST HUMPHREY, Commissioner

[17] Commissioner Holcomb concurs in part and dissents in part.

[18] CONCURRING AND DISSENTING OPINION
[19] I respectfully dissent from the majority’s opinion in this case. I am unable to find from the record below that the claimant is permanently and totally disabled. Claimant sustained an admittedly compensable work-related left shoulder injury on September 11, 1989. She suffered a reinjury of the same shoulder at work in September of 1990. Each of these injuries required surgical repairs of the rotator cuff. Claimant was assessed a 15% physical impairment rating to the body as a whole as a result of her compensable injuries. In my opinion, claimant may have proven entitlement to wage loss disability over and above the 15% physical impairment rating, however, such wage loss does not reach the level of permanent and total disability. On June 21, 1992, Dr. Lytle released the claimant to return to work with restrictions. No lifting above shoulder level and no lifting heavier than 25 pounds. In my opinion, this minimal restriction does not reach the level of permanent and total disability.

[20] Moreover, I find that respondent No. 1 has failed to prove that the Second Injury Fund is liable for any disability over and above the physical impairment rating. In this regard, I must concur with the majority’s decision. The record reveals that prior to her compensable injury, claimant had no problem carrying out her job duties. It was not until after her compensable injury that the claimant began to suffer from conditions unrelated to her compensable injury which prevented her from working. Claimant first experienced back trouble a year and a half after her compensable injury. Moreover, the foot and bunion problems were noted approximately a year after her injury. The record also reveals that the claimant suffered from a cyst and a melanoma which likewise arose after her compensable injury. Since these conditions all arose subsequent to the compensable injury, they are excluded under the disability test from being used to find Second Injury Fund liability. Accordingly, I find that respondent No. 1 has failed to prove that the Second Injury Fund bears any liability for wage loss over and above the claimant’s physical impairment rating. For these reasons, I concur with the majority in part and dissent in part.

[21] ALICE L. HOLCOMB, Commissioner