Arkansas Highway & Transportation Department v. McWilliams

846 S.W.2d 670, 41 Ark. App. 1, 1993 Ark. App. LEXIS 54
CourtCourt of Appeals of Arkansas
DecidedFebruary 10, 1993
DocketCA 92-381
StatusPublished
Cited by16 cases

This text of 846 S.W.2d 670 (Arkansas Highway & Transportation Department v. McWilliams) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Arkansas Highway & Transportation Department v. McWilliams, 846 S.W.2d 670, 41 Ark. App. 1, 1993 Ark. App. LEXIS 54 (Ark. Ct. App. 1993).

Opinion

John Mauzy Pittman, Judge.

The Arkansas Highway and Transportation Department and Public Employee Claims Division, appellants, appeal from an order of the Arkansas Workers’ Compensation Commission. The Commission found that the appellee/claimant’s pre-existing impairment did not combine with his work-related injury to produce his current disability status, but rather that the claimant’s current disability status was solely the result of his compensable injury, and that the appellee Second Injury Fund had no liability in this case. In addition, the Commission found claimant’s healing period ended September 8, 1988. The primary issue is whether payment to the claimant should be solely from the appellants or from the appellants and the Second Injury Fund. We find no error and affirm.

Appellants first contend that there is no substantial evidence to support the Commission’s finding that the claimant’s current disability status is solely the result of his compensable injury. We do not agree.

When reviewing decisions from the Workers’ Compensation Commission, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the findings of the Commission. We must uphold those findings unless there is no substantial evidence to support them. Clark v. Peabody Testing Service, 265 Ark. 489, 579 S.W.2d 360 (1979). The issue is not whether we might have reached a different result or whether the evidence would have supported a contrary finding; if reasonable minds could reach the Commission’s conclusion, we must affirm its decision. Id.; Welch’s Laundry and Cleaners v. Clark, 38 Ark. App. 223, 832 S.W.2d 283 (1992).

In order for the Second Injury Fund to have liability, three prerequisites must be met: (1) the employee must have suffered a compensable injury at his present place of employment; (2) prior to that injury, the employee must have had a permanent partial disability or impairment; and (3) the disability or impairment must combine with the recent compensable injury to produce the current disability status. Mid-State Construction Co. v. Second Injury Fund, 295 Ark. 1, 746 S.W.2d 539 (1988); Ark. Code Ann. § 11-9-525(b)(3) (1987). If the more recent injury alone would have caused the claimant’s current disability status, the Second Injury Fund has no liability. In other words, the prior condition must combine with the compensable injury “to produce a disability greater than that which ‘would have resulted from the last injury, considered alone and of itself.’ ” Id. at 9, 746 S.W.2d at 543 (quoting Ark. Code Ann. § 11-9-525(b)(3)).

All parties agree that the claimant is now permanently and totally disabled and that he experienced a pre-existing non-work-related impairment to his back. As a child, he contracted spinal meningitis. Although he sustained a back strain in junior high school, he continued to play football through his senior year of high school. In 1980, he injured his lower back while playing softball. As his back condition worsened, he went to Dr. Thomas Fletcher for a diagnostic test which revealed a congenital fusion at the L4-5 level, a herniated disc at L5-S1 on the right, and degenerative disc disease at L3-4. On October 4, 1985, Dr. Fletcher performed a lumbar interlaminar laminotomy with bilateral L5-S1 discectomy decompression of conjoined L5-S1 right nerve root for the ruptured disc. On December 5,1985, Dr. Fletcher released the claimant to return to work with instructions to avoid heavy lifting or bending. Dr. Fletcher noted that the surgery was successful and that the claimant made a good recovery. The claimant returned to an active life and was able to participate in hunting, fishing, camping, and water skiing. From the summer of 1986 through the date of his compensable injury on November 12, 1987, claimant routinely performed heavy manual labor and on occasion worked sixty-hour weeks.

As stated, claimant sustained a compensable injury in November 1987 while working for appellant Arkansas Highway and Transportation Department. He continued working until he went to Dr. Fletcher on December 29, 1987. On March 9,1988, Dr. Fletcher performed a lumbar interlaminar laminotomy with bilateral L4-5 discectomy and exploration at L5-S1. Dr. Fletcher noted some adhesion at L5-S1 that required no intervention. He placed substantial restrictions on the claimant’s activities and approved only sedentary work or work requiring very light activity. Claimant obtained no relief after the 1988 surgery. On June 21, 1988, Dr. Fletcher assigned a ten-percent permanent impairment for the compensable injury and for the first time gave a ten-percent rating for the prior back problem. The compensable injury rating was subsequently increased by Dr. Jim Moore to eighteen percent.

Since his 1987 injury, claimant has undergone considerable medical treatment by a number of specialists. In October 1989, Dr. Moore performed a myelogram, which reflected arach-noiditis. Dr. Moore indicated that this condition was found at L4-5 and L5-S1 levels and was related to the compensable injury. It is important to note that the March 1988 surgery performed by Dr. Fletcher involved a discectomy at L4-5 and an exploration at L5-Sl. Thereafter, claimant saw Dr. Richard Guyer about the possibility of installing a dorsal column stimulator. Dr. Guyer referred to Dr. Ralph Rashbaum, who determined that the claimant was not a candidate for the procedure but that he might require fusion surgery at L3-4. Dr. Rashbaum stated the L5-S1 level did not seem to be painful at this time. Subsequently, claimant saw a urologist for chronic bladder problems that developed after the 1988 surgery. The record establishes that this treatment continued until April 8, 1991.

From our review of the record, we conclude that there is substantial evidence to support the Commission’s finding that the claimant’s current disability is a result of his compensable injury on November 12, 1987. The claimant did not experience severe pain until after his compensable injury. Dr. Rashbaum stated that the L5-S1 level was not causing pain prior to the compensable injury. Dr. Moore stated that the claimant’s problems stemmed from his compensable injury. The 1985 surgical treatment of the L5-S1 disc protrusion was successful according to all consulting doctors. There was evidence that the L-5 nerve root discomfort was related to the 1987 injury. Dr. Moore’s X-ray notes from May 1989 revealed the existence of fusion related to the prior impairment, but indicated that the fusion was not significantly impairing the claimant’s range of motion. The medical records indicate that the L5-S1 scarring and adhesions were mild before 1987. After the 1988 surgery, only minimal adhesion was found at L5-S1, but scarring from L4-5, L5-S1 was significant enough to cause claimant’s problems regarding his range of motion. The arachnoiditis at L4-5, L5-S1 was attributed to the compensable injury. In sum, we conclude that there was evidence from which the Commission could reasonably conclude that the Second Injury Fund had no liability in this case.

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Bluebook (online)
846 S.W.2d 670, 41 Ark. App. 1, 1993 Ark. App. LEXIS 54, Counsel Stack Legal Research, https://law.counselstack.com/opinion/arkansas-highway-transportation-department-v-mcwilliams-arkctapp-1993.