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 JUNE 25, 1997
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by PAUL TEUFEL and JIM BURTON, Attorneys 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] This case comes on for review before the Commission following a remand from the Arkansas Court of Appeals issued on December 18, 1996.
[3] Respondents appealed 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. The only issue on remand concerns claimant’s entitlement to benefits for wage loss disability.
[4] 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) (Repl. 1996). 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.
[5] 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.
[6] 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) (Repl. 1996); 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).
[7] 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.
[8] 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 as 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 to the cervical and thoracic spine resulting in permanent anatomical impairments. 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 cervical and thoracic spine.
[9] 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.
[10] 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 but had to quit because he was physically unable to continue to perform the work.
[11] 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. In reaching that conclusion, we have considered only claimant’s compensable cervical and thoracic spine injuries, and have not taken into account his scheduled eye injury or any nonwork-related conditions.
[12] Accordingly, we affirm the opinion of the Administrative Law Judge finding that claimant is entitled to benefits 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.
[13] IT IS SO ORDERED.
ELDON F. COFFMAN, Chairman PAT WEST HUMPHREY, Commissioner
[14] Commissioner Wilson dissents.
[15] DISSENTING OPINION
[16] I respectfully dissent from the majority’s opinion. Based upon my de novo review of the entire record, I find that when claimant’s age, education, work experience, compensable injury to the body as a whole, and other matters probably before the Commission in determining wage loss are considered, claimant has not proven entitlement to 20% loss in his earning capacity.
[17] Claimant’s most significant injury which resulted from claimant’s November 26, 1990, compensable injury was the injury to claimant’s right eye. The record also reflects that claimant’s non-compensable lumbar injury is of the nature to require surgical intervention which claimant had not pursued as of the date of the last hearing. When I exclude claimant’s right eye injury, and claimant’s non-compensable lumbar condition from our consideration of permanent partial disability and wage loss, a preponderance of the evidence, in my opinion, does not support a finding of wage loss disability of 20%. While it is difficult to exclude the right eye injury (because it was a scheduled injury) and non-compensable lumbar condition from evaluating the claimant’s wage earning capacity since these are claimant’s most serious conditions, we cannot consider such conditions when determining a claimant’s entitlement to wage loss benefits.
[18] The record reflects that after being released to return to work by his treating physician, claimant did return to work for respondent, worked long overtime hours during the busy summer, and did not complain of problems with his cervical or thoracic spine. Although claimant did eventually cease his employment with respondent claiming that he was in pain, there is no evidence that this inability to work occurred as a result of claimant’s compensable whole body injuries to his cervical and thoracic spine. Other than claimant’s complaints of difficulty raising his arms, all other complaints of problems sleeping, physical discomfort, and the use of prescription pain medication and muscle relaxers have not been attributed to the compensable whole body injuries. In my opinion, the record does not support a 20% wage loss award when one excludes the scheduled and noncompensable injuries.
[19] MIKE WILSON, Commissioner
