Dillard's, Inc. v. Johnson

374 S.W.3d 92, 2010 Ark. App. 138, 2010 Ark. App. LEXIS 122
CourtCourt of Appeals of Arkansas
DecidedFebruary 11, 2010
DocketNo. CA 09-896
StatusPublished
Cited by4 cases

This text of 374 S.W.3d 92 (Dillard's, Inc. v. Johnson) 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
Dillard's, Inc. v. Johnson, 374 S.W.3d 92, 2010 Ark. App. 138, 2010 Ark. App. LEXIS 122 (Ark. Ct. App. 2010).

Opinion

DAVID M. GLOVER, Judge.

|! Elizabeth Johnson sustained an admittedly compensable neck injury on December 31, 2004, while working in retail sales for appellant Dillard’s, Inc. The injury occurred when a large metal display rack with a glass top that she and another employee were lifting slipped and fell on Johnson’s head. She was approximately forty-six years old at the time of the incident. She has received stipulated benefits related to the injury. In addition, however, she contended that she was entitled to a fifty-five percent whole-body anatomical-impairment rating, as opposed to the un-controverted ten percent; that she was permanently and totally disabled due to her compensable injury, or, alternatively, that she was entitled to wage-loss disability benefits; that her stroke and seizures, which started on |2June 29 or 30, 2006, were related to her compensable injury and resulting surgeries; and that she was entitled to psychiatric treatment related to her injury.

The ALJ denied appellee’s claims, finding that Johnson sustained an eleven-percent anatomical-impairment but that she was not entitled to any wage-loss disability benefits; that she did not prove her strokes and seizures were compensable consequences of her compensable injury; and that she did not prove psychiatric treatment was reasonably necessary. On appeal, the Commission reversed the ALJ’s decision.

Appellants, Dillard’s, Inc., and Fidelity & Guaranty Insurance Company, appeal from the Commission’s decision, which concluded that Johnson had proven 1) that she was entitled to a permanent impairment rating of twenty-six percent, including compensation for a seizure disorder and spinal stroke; 2) that psychiatric treatment was reasonably necessary in connection with her work-related injury; 3) that she was entitled to twenty-percent wage-loss-disability benefits; and 4) that appellee Second Injury Fund had no liability for the wage-loss-disability benefits award to Johnson. Johnson cross-appeals, contending that the Commission clearly erred in finding 1) that she sustained only a twenty-six percent anatomical impairment because she contends her impairment is greater than twenty-six percent to the body as a whole; 2) that she was entitled to only a twenty-percent wage-loss disability because she contends she was totally and permanently disabled; and 3) that the Second Injury Fund was not liable in this case. We affirm the Commission on direct appeal and on cross-appeal.

IsMedical Evidence

Elizabeth Johnson’s treatment was extended and extensive. She was treated in the emergency room on January 2, 2005, following the incident at work. Medical reports from that visit reported that she was positive for muscle spasms in her neck bilaterally and radiating down both arms with soreness of the left side and left arm in the triceps region; that her cervical spine x-ray showed degenerative changes with loss of disc height between C4 and C5; that there was no evidence of subluxation or malalignment in those areas; and that she was diagnosed with a cervical sprain and a scalp contusion. On April 27, 2005, she began treating with Dr. J. Michael Calhoun, a neurosurgeon, and a May 4, 2005 MRI of her cervical spine identified a prominent posterior osseous ridging with a moderate left paracentral-disc protrusion at C5-6 resulting in moderate to severe central-canal stenosis and prominent left anterolateral cord flattening as well as severe left foraminal narrowing; and a small left paracentral disc protrusion at C4-5 causing mild central-canal stenosis and mild left anterolateral cord flattening. Dr. Calhoun reported on that same day that Johnson’s MRI showed a large left C5-C6 disc herniation and that he thought her options were to try physical therapy again or surgery in the form of a C5-6 anterior cervical discectomy and fusion. On June 27, 2005, Dr. Calhoun performed a discec-tomy, foraminotomies, and arthrodesis at C5-6. The pre- and post-operative diagnosis was “Right C5-6 herniated nucleus pul-posus.” A secondary diagnosis was poorly controlled hypertension. Dr. Calhoun also reported that immediately after surgery, Johnson noticed difficulty with numbness and weakness primarily on her left side, and that she was |4significantly hypertensive “with blood pressures over 200 systolic,” which was controlled with medication.

On July 11, 2005, Dr. Calhoun reported to Dr. Michelle Ibsen that after surgery, Johnson “clearly has a myelopathy”; that she was hypertensive intra- and post-oper-atively; and that she “potentially could have suffered some cerebrovascular compromise of her spinal cord.”

On November 2, 2005, Johnson underwent a functional capacity evaluation, which concluded that “she did not put forth maximal effort on a consistent basis”; that the evaluation was therefore unreliable due to the inconsistencies noted within the report; and that overall, she demonstrated the ability to work at least at the “light” work category over the course of an eight-hour workday.

On May 9, 2006, Dr. Calhoun reported that Johnson awoke from her June 27, 2005 surgery for cervical-disc herniation with numbness and clumsiness in her hands; that she was noted to be unsteady on her feet; that it improved to some degree, but that she still had difficulty with fine-motor movements and disc coordination in her hands along with some unsteadiness on her feet and a tendency to fall. He also reported that he thought those symptoms would persist because the surgery had taken place almost a year earlier. He stated that “[i]t is thought that Mrs. Johnson suffered a ‘stroke’ of the spinal cord during the surgical procedure .... ”

On June 27, 2006, Dr. Calhoun operated on Johnson’s cervical spine a second time. He reported that her first surgery had occurred a year ago; that she had recently ^experienced worsening problems with her hands not functioning correctly and had difficulty ambulating; that a repeat MRI showed that a large osteophyte superior to the previous C5-6 diskectomy had formed; that there were some ischemic changes within the spinal cord; and that it was thought that she should undergo repeat surgery to remove her instrumentation and repeat corpectomies with repeat fusion. The pre-operative diagnosis was C5-6 cervical spinal stenosis, status post C5-6 fusion, and cervical myelopathy.

On June 30, 2006, Johnson received emergency treatment. The ER report provided that she presented complaining of passing out; that she had spinal-fusion surgery the previous week; that she had been on pain medication; that on the date of presentation, she had experienced dizziness when she bent over and stood up; that she felt hot and passed out; and that the family reported “she had some twitching and jerking of her arms, but no seizure-like activity,” made some snoring noise, and was completely unresponsive for about fifteen minutes. The physician’s diagnostic impression was syncope and hy-pokalemia. On that same date, Dr. David Martin noted that shortly after Johnson was admitted to the floor, the nursing staff witnessed her having a seizure; that she “was postictal for some time”; and that “the seizure lasted about two minutes.” Dr. Martin’s assessment was new onset seizure, hypertension, and recent spinal-fusion surgery of the cervical spine.

On the same date, June 30, 2006, Dr. Keith Schluterman reported that Johnson had presented “with two likely generalized tonic seizures today,” which were without clear recognized precipitant.

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Cite This Page — Counsel Stack

Bluebook (online)
374 S.W.3d 92, 2010 Ark. App. 138, 2010 Ark. App. LEXIS 122, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dillards-inc-v-johnson-arkctapp-2010.