Birtcher v. Mena Water Utilities

2017 Ark. App. 210, 518 S.W.3d 707, 2017 Ark. App. LEXIS 230
CourtCourt of Appeals of Arkansas
DecidedApril 5, 2017
DocketCV-16-143
StatusPublished

This text of 2017 Ark. App. 210 (Birtcher v. Mena Water Utilities) 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
Birtcher v. Mena Water Utilities, 2017 Ark. App. 210, 518 S.W.3d 707, 2017 Ark. App. LEXIS 230 (Ark. Ct. App. 2017).

Opinion

KENNETH S. HIXSON, Judge

| j Appellant Brian 0. Birtcher sustained admittedly compensable injuries to his head and his left leg while working for appellee Mena Water Utilities on July 28, 2013. Mena Water Utilities covered the medical treatment associated with the injuries and accepted a thirty-three percent permanent anatomical impairment rating for neurologic impairments associated with traumatic dissection of the left vertebral artery and a stroke. Although Mena Water Utilities admitted that it was responsible for some degree of permanent partial wage-loss benefits, it controverted Mr. Birtcher’s claim that he was permanently and totally disabled.

After a hearing, the Workers’ Compensation Commission denied Mr. Birtcher’s claim for permanent and total disability benefits. The Commission did, however, award fifty-percent wage-loss disability over and above Mr. Birtcher’s permanent anatomical impairment rating. Mr. Birtcher now appeals, arguing that the Commission’s decision |2denying his claim for permanent and total disability benefits was not supported by substantial evidence. We affirm.

Permanent total disability is defined by statute as the inability, because of compensable injury or occupational disease, to earn any meaningful wages in the same or other employment. Ark. Code Ann. § 11—9—519(e)(1) (Repl.. 2012). The employee bears the burden of proving the inability to earn any meaningful wage. Ark. Code Ann. § ll-9-519(e)(2). In considering claims for permanent partial disability benefits in excess of the percentage of permanent physical impairment, the Commission may take into account such factors as the employee’s age, education, work experience, and other matters reasonably expected to affect his or her future earning capacity. Ark. Code Ann. § 11—9— 522(b)(1). The wage-loss factor is the extent to which a compensable injury has affected the claimant’s ability to earn a livelihood. Thompson v. Mountain Home Good Samaritan Vill., 2014 Ark. App. 493, 442 S.W.3d 873.

Our court views the evidence in a light' most favorable to the Commission’s decision and affirms the decision if it is supported by substantial evidence. Nichols v. Micro Plastics, Inc., 2015 Ark. App. 134, 2015 WL 826691. Substantial evidence exists if reasonable minds could reach the Commission’s conclusion. Id. When the Commission denies a claim because of the claimant’s failure to meet his burden of proof, the substantial-evidence standard of review requires that we affirm the Commission’s decision if it displays a substantial basis for the denial of relief. Martin Charcoal, Inc. v. Britt, 102 Ark. App. 252, 284 S.W.3d 91 (2008). It is the Commission’s duty, not ours, to make credibility determinations, to weigh the evidence, and to resolve conflicts in the medical testimony. Id.

| ¡¡Mr. Birteher testified that he was forty-two years old at the time of the hearing and that he lived in Rocky, Arkansas, which is about eight miles west of Mena. His past employment included working as a drilling rig operator, deputy sheriff, bouncer, and machine operator at a poultry plant. Mr. Birteher began working on the sewer-maintenance crew for Mena Water Utilities in 2006.

While working for Mena Water Utilities on July 28, 2013, Mr. Birteher was assaulted by a man and his wife while he was attempting to disconnect their water. According to Mr. Birteher, the man’s wife weighed 300 pounds and she kicked him in the head, stomped on his leg, jumped on his back, and jerked his head around.

Mr. Birteher went to the emergency room that day and was diagnosed with a broken left leg. Mr. Birteher was also experiencing dizziness, headaches, and1 nausea as a result of the attack, and he came under the care of a neurologist, Dr. Stephen F. Shafizadeh. Subsequent testing confirmed that Mr. Birteher had suffered a left vertebral artery dissection and a brain stem stroke. Mr. Birtcher’s problems included difficulty with swallowing, numbness in his extremities, and vertigo.

On October 9, 2013, Dr. Shafizadeh reported:

With regard to [Mr. Birteher] returning to work, I instructed him that he could return to work as long as work had limited risk. As such, I recommend to him to have a “desk job.” There were no limitations if he was to have a desk job at his same company that he worked at before. (Emphasis added.)

On January 8,2014, Dr. Shafizadeh reported:

With regards to returning to work, I, again, reviewed with the patient with his representative in the room that I do not do disability assessments. In brief, however, I relayed to him that given his decreased sensation of the right hand, right leg, and alterations in vision, I do not recommend him to do any machinery or any driving at work or otherwise. I also recommended to him that physically he could return to work as \J-ong as it was a desk job and he was not asked to do toork that would put him at harm if he fell or was involved in any machinery. These were generalized recommendations, and I relayed to him that I do not do specific recommendations in this kind of setting as there are innumerable situations which could include or exclude the above recommendations. (Emphasis added.)

A return-to-work permit dated January 8, 2014, indicated that Mr. Birteher could return to work with the restrictions, “no machinery, light duty, no driving.” Mr. Birteher subséquéntly returned to work for Mena Water Utilities at light duty.

On August 28, 2014, Dr. Scott W.F. Carle performed an independent medical examination of Mr. Birtcher. Dr. Carle assigned a thirty-three percent permanent partial impairment rating as a result of Mr. Birtcher’s compensable neurologic impairments. With respect to Mr. Birtcher’s ability to work, Dr. Carle gave the following assessment:

The claimant has had specific direction not to engage in activity that is beyond a “desk job” by his attending neurosurgeon. Subsequent to his current functional status pertaining to work ability and his apparent risk associated with engaging in activity, the following work class recommendations are made and should be considered permanent in duration.
The claimant would not be considered eligible for Commercial Vehicle Operation under the DOT due to his persistent symptoms of vertigo with a neurologic basis. Subsequent to that, he should also engage only in ground level work. He should not lift, push or pull beyond 20 pounds of force occasionally to move objects. He should not exceed 10 pounds of force on a frequent basis and no more than negligible force constantly. He should not operate dangerous machinery at work such as a backhoe or forklift.
A job description is available for review. There exists documentation that the claimant has been trained to work as a billing clerk and other light.duty office work. He will also be given the opportunity to go with contractors to identify meter locations. Duties for that'-will include “riding and communicating.” The claimant would appear to be able to do this job as described and would be of no direct threat of imminent harm to others or himself by engaging in this type of work activity. (Emphasis added.)

Mr.

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Related

McDonald v. Batesville Poultry Equipment
206 S.W.3d 908 (Court of Appeals of Arkansas, 2005)
Martin Charcoal, Inc. v. Britt
284 S.W.3d 91 (Court of Appeals of Arkansas, 2008)
Thompson v. Mountain Home Good Samaritin Village
2014 Ark. App. 493 (Court of Appeals of Arkansas, 2014)
Nichols v. Micro Plastics Inc.
2015 Ark. App. 134 (Court of Appeals of Arkansas, 2015)

Cite This Page — Counsel Stack

Bluebook (online)
2017 Ark. App. 210, 518 S.W.3d 707, 2017 Ark. App. LEXIS 230, Counsel Stack Legal Research, https://law.counselstack.com/opinion/birtcher-v-mena-water-utilities-arkctapp-2017.