Efird v. Whelan Security, Inc.

423 S.W.3d 643, 2012 Ark. App. 548, 2012 WL 4663375, 2012 Ark. App. LEXIS 662
CourtCourt of Appeals of Arkansas
DecidedOctober 3, 2012
DocketNo. CA 12-392
StatusPublished

This text of 423 S.W.3d 643 (Efird v. Whelan Security, Inc.) 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
Efird v. Whelan Security, Inc., 423 S.W.3d 643, 2012 Ark. App. 548, 2012 WL 4663375, 2012 Ark. App. LEXIS 662 (Ark. Ct. App. 2012).

Opinion

ROBIN F. WYNNE, Judge.

_JjAlan J. Efird appeals from the Arkansas Workers’ Compensation Commission’s decision finding that his colon condition was not related to his admittedly compen-sable cervical spine injury; that he was entitled to a twelve-percent impairment rating for his compensable injury; and that he was entitled to twenty-four-percent wage-loss disability. His employer, Whe-lan Security, Inc., cross-appeals arguing that Efird failed to prove entitlement to wage-loss disability benefits. We affirm on both direct appeal and cross-appeal.

Efird, who was sixty years old at the time of the hearing and had a twelfth grade education, began working for Whe-lan Security in September 2007 as a part-time night security guard. On January 7, 2008, he fell and suffered a compensable cervical spine injury; he continued to work for Whelan Security until July 7, 2008, after which he did not work. At the hearing before the administrative law judge (ALJ) on August 24, 2011, Efird testified 12regarding his past employment and extensive medical history. He stated that he worked as a truck driver in 1975 for one year before injuring his knee. He had knee surgery and eventually returned to work doing construction. According to Efird, he was not able to “hold a job” in construction because of physical problems. He then worked as a guard for the Arkansas Department of Correction. Efird testified that in 1991 he was doing construction work when he injured his left wrist and shoulder, leading to a total shoulder replacement and a “fused” hand. Also before his injury at Whelan, Efird had hip surgery after falling and breaking his hip in his yard. In addition, Efird testified that he had spurs in his neck before his compensable injury in 2008.

When Efird began working as a security guard for Whelan in 2007, he was receiving social security disability benefits for his shoulder and hand problems. He testified that he informed his supervisors at Whe-lan of his disabilities, and they advised that he could sit in his truck for most of his shift; he was able to scare away would-be intruders with his shotgun. On January 7, 2008, while working as a night guard at a trucking company, he went into the warehouse and fell backwards, landing on his back on a forklift. According to Efird, he was unable to get up (after a period of paralysis, he was able to crawl to the office) and was found by an employee of the trucking company.

Efird was first treated in the emergency room at Baptist Health Medical Center, where x-rays of the lumbar spine showed no acute findings and he was sent home. Efird saw Dr. Michael Atta the following day. Dr. Atta’s notes from that visit indicate that Efird reported mild discomfort to his right shoulder and mild mid-back pain; Dr. Atta assessed right shoulder and thoracic strains. Efird was prescribed Na-prosyn and Soma, provided with a cane, and | ^returned to work with restrictions and instructed to return in one week for further evaluation. On January 16, 2008, Dr. Atta assessed Efird with lumbar contusion. After another appointment on January 28, 2008, Dr. Atta referred Efird for an MRI of his thoracolumbar spine and his right shoulder. The MRI of Efird’s spine revealed mild spinal stenosis at T10-Tll, spinal stenosis from L2-3 to L4-5, and no neural foramina narrowing. Efird returned to see Dr. Atta on February 4, 2008, continuing his complaints of numbness in both lower extremities, now radiating down to both feet, and persistent weakness in his right upper extremity. After reviewing the MRI results,-Dr. Atta found that there were no objective findings that correlated with Efird’s symptoms and released him back to regular work activities without restrictions.

Efird’s family physician, Dr. Larry Brashears, referred him to a neurosurgeon, Dr. Richard Jordan, to determine whether he had a spinal cord injury and possibly a residual cervical disc injury. Efird saw Dr. Jordan on June 25, 2008, and complained of low back pain and right lower extremity numbness radiating to the foot. He also reported that he intermittently lost bowel control. Dr. Jordan noted a “spastic gait.” A June 80, 2008 MRI of Efird’s cervical spine showed “severe multilevel canal narrowing -with at least moderately severe multilevel cord impingement. This is secondary to a combination of spondylosis and generalized multilevel disc bulging.”

On September 19, 2008, Dr. Jordan performed a decompressive cervical laminec-tomy of C3 through C6. After the surgery, Efird received physical therapy. The surgery did improve Efird’s preoperative complaints, but according to Dr. Jordan, the ongoing problems from the spinal cord injury included numbness in the extremities, weakness, and chronic pain. |4In a letter to Efird’s attorney dated June 24, 2009, Dr. Jordan summarized three separate problems with Efird’s spine: an old lumbar injury; facet hypertrophy at the lower thoracic levels that had been treated with injections; and the cervical spine injury, ongoing problems from which include numbness in the extremities, weakness, and chronic pain.

Dr. Earl Peeples saw Efird for an independent medical evaluation on July 23, 2009. Dr. Peeples deferred to Dr. Jordan as to maximum medical improvement (MMI) and an impairment rating. He stated that the need for the decompressive laminectomy was directly related to Efird’s fall at work.

Dr. Kenneth Rosenzweig also performed an independent medical evaluation. In his March 30, 2010 report, Dr. Rosenzweig noted that Efird was not recommended to be declared at MMI until two years after his surgery. He further noted that because of Efird’s “profound” disability, he was unable to work even in a sedentary capacity. He suggested an impairment rating of forty percent to the whole person.

In August 2010, Efird saw Dr. Brash-ears due to abdominal pain and weakness; he had a distended abdomen and reported that his bowel had not been moving. Efird was admitted to the hospital, where he underwent gallbladder surgery. He was discharged on August 15, 2010, but continued to have abdominal problems and constipation. He was admitted to the hospital again on August 31, 2010, and was released two days later.

Efird next saw Dr. Budhraja, a gas-troenterologist. Dr. Budhraja and Dr. Brashears were of the opinion that Efird suffered from “neurogenic colon due to spinal cord injury.” On April 21, 2011, Efird had a subtotal colectomy. Efird testified that this surgery, which was performed by Dr. Marotti, helped him tremendously.

IfiEfird testified that his “bowel movement problem” started on the night of his injury. As for his limitations after his fall at Whelan, Efird stated that he could no longer tie his own shoes or lift his grandchildren, and he could walk only about fifty yards without having to stop or sit down. He could no longer hunt. He walked with a cane but still sometimes fell down. Efird testified that he could still drive his vehicle and went to Wal-Mart daily.

At a hearing before an ALJ on August 29, 2009, the respondents agreed to accept the previously controverted care for Efird’s cervical spine, including the surgery by Dr. Jordan, and to compensate him for accrued temporary total disability (TTD) benefits from July 8, 2008, to a date to be determined.

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Bluebook (online)
423 S.W.3d 643, 2012 Ark. App. 548, 2012 WL 4663375, 2012 Ark. App. LEXIS 662, Counsel Stack Legal Research, https://law.counselstack.com/opinion/efird-v-whelan-security-inc-arkctapp-2012.