CLAIM NOS. E021144 E215851
JOHNNY RISPER, EMPLOYEE, CLAIMANT v. FEDERAL COMPRESS WAREHOUSE COMPANY, EMPLOYER, RESPONDENT and ROYAL INSURANCE COMPANY, INSURANCE CARRIER, RESPONDENT
Before the Arkansas Workers’ Compensation Commission
OPINION FILED OCTOBER 9, 1995
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by PAUL TEUFEL, Attorney at Law, Jonesboro, Arkansas and JIM BURTON, Attorney at Law, Jonesboro, Arkansas.
Respondents represented by WALTER A. MURRAY, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed.
[1] OPINION AND ORDER
[2] Respondents appeal an opinion of the Administrative Law Judge finding that claimant is entitled to benefits for a permanent anatomical impairment of 10% to the right eye and for a loss in earning capacity of 20% to the body as a whole.
[3] Claimant has the burden of proving by a preponderance of the evidence that he 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 his burden of proof and accordingly, affirm the opinion of the Administrative Law Judge.
[4] On November 26, 1990, claimant sustained an admittedly compensable injury when he was hit by a bale of cotton. Claimant suffered multiple facial fractures, including a right trimalar fracture and right orbital floor blowout fracture, as well as spinal process fractures at C-6, C-7, and T-1, along with a nondisplaced right lateral mass fracture of C-6. The cervical and thoracic fractures were treated conservatively and apparently, benefits for a permanent anatomical impairment of 9% to the body as a whole have been accepted and paid by respondents. The issue on appeal concerns whether claimant is entitled to benefits for a permanent anatomical impairment to his right eye.
[5] Claimant has undergone at least two surgeries to repair the facial fractures sustained during the compensable injury. Claimant has been examined by several specialist concerning any residual impairments to his right eye. Claimant has been found to suffer from tenderness of the orbital rim; depressed vision fields; enophthalmus (the eye sets back in the socket); diplopia (double vision); esotropia (the eye turns inward); and ptosis (the drooping of the upper eye lid). Claimant’s condition and eye examinations have been hampered somewhat by an extreme nervousness concerning his right eye. Based on this evidence, we find that claimant has proven by a preponderance of the evidence that he is entitled to benefits for a permanent anatomical impairment of 10% to the right eye.
[6] Respondent argues that claimant’s esotropia preexisted the compensable injury. Claimant and his wife denied that he suffered from such a condition prior to the compensable injury. Further, and more importantly, Dr. Fleming testified that “[t]he restriction in which I call lateral gaze and looking to the side is consistent with the injury. It’s not consistent with the usual type of crossed eye.” Therefore, we find that there is insufficient evidence that any permanent impairment related to claimant’s esotropia preexisted the compensable injury.
[7] 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 his 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).
[8] Initially, we note that claimant was a poor historian, who had difficulty with recall and the comprehension of questions. However, we find that claimant has proven by a preponderance of the evidence that he is entitled to benefits for wage loss disability.
[9] At the time of the most recent hearing, claimant was 50 years old. He has a third grade education and his ability to read and write is practically nonexistent. The only job he has ever had was with the employer. His job duties included operating equipment such a forklift or simply pulling levers for a cotton compress; painting; stacking lumber; loading and unloading trucks and boxcars; and general maintenance and other housekeeping chores. Claimant sustained compensable injuries, which caused the above noted impairments to his right eye, as well as to the cervical and thoracic spine. He experiences difficulty raising his arms; problems sleeping; and physical discomfort, which requires prescription pain medication and muscle relaxants. His daily activities are very limited as a result of the continued difficulties with his right eye and cervical and thoracic spine.
[10] Claimant and his wife testified that he is unable to work. However, several physicians have opined that claimant should be able to perform some type of gainful employment.
[11] Following the compensable injury, claimant returned to work with the employer in April, 1991 and apparently, continued to work until February 1992. It appears that claimant eventually returned to his regular job duties. Claimant and several representatives of the employer testified that he quit his job in February 1992, stating that he was physically unable to continue to perform the job duties.
[12] Based on the above evidence, we find that claimant has proven by a preponderance of the evidence that he is entitled to benefits for wage loss disability in an amount equal to 20% to the body as a whole.
[13] Accordingly, we affirm the opinion of the Administrative Law Judge finding that claimant is entitled to benefits for a permanent anatomical impairment of 10% to the right eye and for a wage loss disability of 20% to the body as a whole. Respondents are 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.
[14] IT IS SO ORDERED.
JAMES W. DANIEL, Chairman PAT WEST HUMPHREY, Commissioner
[15] Commissioner Tatum dissents.
