CLAIM NOS. E101969 E208888
DONNA DuVALL, EMPLOYEE, CLAIMANT v. RIVERSIDE FURNITURE, EMPLOYER, RESPONDENT and SEDGWICK JAMES OF ARKANSAS, INSURANCE CARRIER, RESPONDENT
Before the Arkansas Workers’ Compensation Commission
OPINION FILED AUGUST 16, 1994
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by JOSEPH W. SEGERS, III, Attorney at Law, Fayetteville, Arkansas.
Respondent represented by ROBERT T. DAWSON, Attorney at Law, Fort Smith, Arkansas.
Decision of Administrative Law Judge: Affirmed.
[1] OPINION AND ORDER
[2] Respondent appeals an opinion of the Administrative Law Judge filed on September 7, 1993 finding that claimant is entitled to benefits for a wage loss disability of 25% to the body as a whole.
[3] Claimant has the burden of proving by a preponderance of the evidence that she is entitled to compensation. Stone v. Patel,
26 Ark. App. 54,
759 S.W.2d 579 (1988); Ark. Code Ann. §
11-9-705 (a)(3) (Supp. 1993). Questions of credibility and the weight and sufficiency to be given evidence are matters within the province of the Workers’ Compensation Commission. Central Maloney, Inc. v.York,
10 Ark. App. 254,
663 S.W.2d 196 (1984). After our denovo review of the entire record, we find that claimant has met her burden of proof and accordingly, affirm the opinion of the Administrative Law Judge.
[4] In October 1988, claimant sustained a compensable injury to her right shoulder while employed with the employer. Dr. Michael S. Wolfe performed an acromioplasty and rotator cuff repair with a ligament resection. Claimant returned to work but suffered work-related aggravations in 1990. In February 1991, Dr. Wolfe performed a Hitchcock procedure on claimant’s right shoulder. Prior to this surgery, on January 24, 1991, claimant sustained a work-related injury to her back. Claimant received conservative treatment at the direction of Dr. Ashcraft, who released claimant to return to work on February 4, 1991. However, claimant did not return to work for the employer at that time because she was off work until June 1991 as a result of her shoulder difficulties.
[5] In May 1991, claimant began to experience additional back difficulties. She eventually came under the care of Dr. Haines, who performed surgery in December 1991 for a herniated nucleus pulposus at L5-S1. The Administrative Law Judge specifically found that the back difficulties experienced by claimant in May 1991 were not a recurrence of her January 1991 compensable back injury. This finding was not appealed by either party. However, after our de novo review of the record, we find that claimant failed to prove by a preponderance of the evidence that the difficulties she experienced in May 1991 were a recurrence of her January 1991 compensable injury. Accordingly, we affirm the opinion of the Administrative Law Judge in this regard.
[6] Following her back surgery in December 1991, claimant was released to return to work by Dr. Haines in the spring of 1992. Dr. Haines reluctantly released claimant without restrictions but cautioned her to “be careful about how much bending and twisting she does, and how much lifting.” Claimant returned to her regular job with the employer. Although claimant acknowledged that she experienced back discomfort after work each day, she added that she was able to perform her job duties without significant difficulties.
[7] In May 1992, claimant sustained another work-related back injury while trying to push a buggy. Claimant testified that she experienced sudden, severe pain and had difficulty straightening up. Claimant improved somewhat during her hospitalization and was subsequently allowed to try to perform her job duties. However, claimant was physically unable to perform her job and has not worked since these efforts.
[8] 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) (Supp. 1993); Glass v. Edens,
233 Ark. 786,
346 S.W.2d 685 (1961); Oller v. Champion PartsRebuilders, 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).
[9] Claimant is forty-eight years old and has a high school education. She has work experience as a waitress, bartender, maid, and factory work in poultry plants and furniture mills. Claimant has an application for social security disability benefits pending at this time. On this application, claimant listed her back and shoulder conditions as reasons she is unable to work.
[10] Concerning claimant’s shoulder injury, claimant has been restricted from repetitive activities involving the shoulder or lifting greater than thirty pounds. As a result of loss of strength, motion and function, Dr. Wolfe rated claimant’s permanent anatomical impairment at 25% to the upper extremity.
[11] Following claimant’s May 1992 compensable back injury, she has been unable to return to work for the employer. Her treating physician has limited her standing, walking, stooping, lifting, pushing, and pulling. Her permanent anatomical impairment has been estimated to be 25% to the body as a whole.
[12] Claimant presented credible testimony that she is in constant pain and cannot sit or stand for prolonged periods of time or perform her usual domestic activities around the house. Claimant’s primary difficulties appear to involve her back but she continues to experience shoulder problems on an intermittent basis.
[13] Based on the above evidence concerning claimant’s wage earning capacity, we find that claimant has proven by a preponderance of the evidence that she is entitled to benefits for wage loss disability in an amount equal to 25% to the body as a whole. Accordingly, we affirm the opinion of the Administrative Law Judge in this regard.
[14] For the foregoing reasons, we affirm the opinion of the Administrative Law Judge finding that claimant is entitled to benefits for a wage loss disability of 25% to the body as a whole. Respondent 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.
[15] IT IS SO ORDERED.
JAMES W. DANIEL, Chairman PAT WEST HUMPHREY, Commissioner
[16] Commissioner Tatum dissents.
[17] DISSENTING OPINION
[18] I respectfully dissent from the majority’s opinion finding that claimant has proven by the preponderance of the credible evidence that she is entitled to 25% permanent partial disability benefits related to a loss of wage earning capacity.
[19] The facts of the case are somewhat confusing. It appears that claimant claims she is permanently and totally disabled and has been since July 15, 1992 based upon a series of injuries she allegedly sustained within the course and scope of her employment. The first injury of import occurred in October of 1988 when claimant sustained a compensable shoulder injury. A reinjury occurred in 1990. As a result of the shoulder injury, claimant was assessed a 25% impairment rating to the upper extremity. On January 24, 1991, claimant sustained a low back strain. Claimant was released to return to work with no restrictions on January 28, 1991. However, claimant remained off work until June 3, 1991 due to shoulder surgery. Claimant also alleges that in May, 1991 she sustained a work-related May, 1991 back problem; and, another on May 18, 1992. A hearing was held and an Administrative Law Judge found that claimant failed to prove by a preponderance of the credible evidence that the May, 1991 back injury was a compensable injury but found that claimant sustained a 25% permanent impairment due to loss of wage earning capacity. Respondent appealed the issue of wage earning capacity.
[20] The burden of proving the job relatedness of any alleged injury rests upon the claimant, Pearson v. FaulknerRadio Service,
220 Ark. 368,
247 S.W.2d 964 (1952); and there is no presumption to this effect, Farmer v. L.H.Knight Co.,
220 Ark. 333,
248 S.W.2d 111 (1952). 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. A.C.A. §
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).
[21] Claimant has failed to prove by a preponderance of the credible evidence that she is entitled to compensation benefits related to a loss of wage earning capacity. Therefore, as stated, I respectfully dissent from the majority’s portion of the decision.
[22] A review of the evidence indicates that claimant’s shoulder injury was accepted and all benefits have been paid in full. Additionally, a review of the evidence indicates that as the result of claimant’s January, 1991 low back strain, claimant was released to return to work without restrictions. Although claimant did not return to work until June 3, 1991, the delay was due to shoulder surgery. The record does not contain any significant evidence that claimant’s shoulder continued to affect her after she returned to work in June of 1991. There also does not appear to be any significant evidence in the record showing that claimant had a loss in wage earning capacity as a result of the shoulder injury.
[23] Additionally, a preponderance of the credible evidence does not support a contention that the 25% loss in wage earning capacity is related to the January 24, 1991 low back strain. A review of the evidence related to the low back strain indicates that claimant was released to workwithout any restrictions on January 28, 1991. As a result of the low back strain, there was no permanent defect.
[24] Furthermore, the May, 1991 back injury was not a compensable injury and was not related to claimant’s January, 1991 back strain. Therefore, this injury cannot be the basis of the award.
[25] Lastly, claimant’s May, 1992 back complaints cannot be the basis for the wage loss disability award. The May, 1992 back complaints are related to claimant’s December 1991 low back surgery which is the result of claimant’s May, 1991 nonwork-related injury.
[26] For the foregoing reasons, I respectfully dissent from the majority’s opinion.
[27] ALLYN C. TATUM, Commissioner
