WILSON v. CARGILL, INC., 1994 AWCC 33

CLAIM NO. E009221

JOHNNY L. WILSON, EMPLOYEE, CLAIMANT v. CARGILL, INC., EMPLOYER, RESPONDENT and NATIONAL UNION FIRE OF PITTSBURGH, CARRIER, RESPONDENT

Before the Arkansas Workers’ Compensation Commission
ORDER FILED JUNE 17, 1994

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

Claimant represented by MARSHA WOODRUFF, Attorney at Law, Fayetteville, Arkansas.

Respondent represented by SCOTT SMITH, Attorney at Law, Fayetteville, Arkansas.

[1] ORDER
[2] This matter comes before the Full Commission as the result of an April 6, 1994 opinion of the Arkansas Court of Appeals in which they remanded this matter to us for further consideration. Specifically, the Court of Appeals found that we erred in stating:

The Administrative Law Judge made a specific factual finding that the claimant’s anatomical impairment equaled 8% to the body as a whole. Claimant did not appeal that finding; therefore, it is res judicata and this Commission is bound by that finding.

[3] As the Court of Appeals pointed out, it is our duty to make specific findings of fact based on a de novo review of the entire record; we clearly erred in failing to do so. In this case, claimant filed a general notice of appeal and, thus, called in to question the 8% permanent anatomical impairment rating. Therefore, the Court of Appeals remanded this matter to us for a specific determination as to the permanent impairment. [4] Based upon a review of the entire record, we are of the opinion that a preponderance of the credible evidence indicates claimant has sustained an 8% permanent anatomical impairment. Dr. Ralph G. Laraiso on January 14, 1992 assessed claimant an 8% permanent anatomical impairment rating. His opinion was based upon a disability evaluation performed at Northwest Arkansas Rehabilitation Hospital in which claimant was determined to qualify for medium work level. Medium work level includes lifting a maximum of 50 pounds on an occasional basis and lifting up to 20 pounds frequently. Dr. Laraiso followed the Guidelines to theEvaluation of Permanent Impairment, 3rd Ed. (Rev.), AMA Copyright 1990. He determined that past medical documentation shows rigidity with and without muscle spasms. [5] We find Dr. Laraiso’s opinion more comprehensive and more grounded in fact than that of Dr. Susan Raben. Dr. Raben at this time no longer performs permanent physical impairment assessments due to her difficulty with the process. [6] We find that a preponderance of the credible evidence shows that claimant has sustained an 8% permanent impairment. [7] We also find that claimant has failed to prove by a preponderance of the credible evidence that he is permanently and totally disabled. It is important to point out that claimant has had a relatively sparse wage earning history throughout his lifetime. There is insufficient evidence in the record that as a result of this injury he suffered a major loss in his capacity to earn wages. [8] No physician has opined that claimant is permanently and totally disabled. Rather, some physicians indicate that claimant should perform some type of lighter work. Claimant has been treated conservatively without
surgical intervention. Additionally, a functional capacity evaluation was performed. Over a 16-day period claimant was monitored. As stated, the testing indicated that claimant could work at a medium level job. [9] Furthermore, it should be noted that as of the date of the hearing claimant is only 39 years old. Also, the videotape in this case indicates that claimant is capable of some type of gainful employment. [10] We give the testimony of David Bell, a certified rehabilitation counselor, little weight in light of the fact that claimant’s treating physician opined that he is physically capable of working and the functional capacity evaluation supports the physician’s opinion. [11] Thus, in our opinion, based upon relevant wage loss factors, we find that claimant is entitled to a 20% permanent partial disability related to wage loss. Consequently, we find that claimant is not permanently and totally disabled. Claimant’s physicians have not indicated that he is not able to work. A functional capacity evaluation indicates that claimant is capable of performing medium work level. Thus, we find that a preponderance of the credible evidence does not indicate that claimant is permanently and totally disabled or that he falls within the odd-lot doctrine. However, we do find that a preponderance of the evidence shows that claimant has sustained an 8% permanent anatomical impairment and a 20% loss of wage earning capacity to the body as a whole for a total permanent partial disability award of 28% to the body as a whole. [12] All accrued and unpaid benefits are to be paid in a lump sum, without discount, with interest thereon from the date of the Administrative Law Judge’s decision until paid. In addition, for having prevailed in part on appeal, claimant’s attorney is hereby awarded an additional $250.00 to be paid one-half by claimant and one-half by respondent. [13] IT IS SO ORDERED.

JAMES W. DANIEL, Chairman ALLYN C. TATUM, Commissioner

[14] Commissioner Humphrey dissents. [15] I dissent for the reasons set out in my February 3, 1993 dissent in this case. [16] PAT WEST HUMPHREY, Commissioner