Excelsior Hotel v. Squires

115 S.W.3d 823, 83 Ark. App. 26, 2003 Ark. App. LEXIS 611
CourtCourt of Appeals of Arkansas
DecidedSeptember 3, 2003
DocketCA 03-116
StatusPublished
Cited by8 cases

This text of 115 S.W.3d 823 (Excelsior Hotel v. Squires) 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
Excelsior Hotel v. Squires, 115 S.W.3d 823, 83 Ark. App. 26, 2003 Ark. App. LEXIS 611 (Ark. Ct. App. 2003).

Opinion

Linker Hart, Judge.

Appellants, Excelsior Hotel and Twin City Fire Insurance Company, appeal from the Arkansas Workers’ Compensation Commission’s finding that appel-lee, Larry Squires, sustained a permanent anatomical impairment of thirty percent to the body as a whole. On appeal, appellants challenge the sufficiency of the evidence to support this finding and further contend that the Commission did not conduct a de novo review of the record. However, because the Commission failed to make specific findings of fact supporting its decision, we cannot conduct a meaningful review of the decision. Consequently, we reverse and remand for further findings of fact.

The parties stipulated that on March 25, 1998, appellee sustained compensable injuries to his ribs and left shoulder during his employment with appellant Excelsior Hotel. Appellants accepted the injuries as compensable and paid temporary total disability benefits from March 26 to June 14, 1998, and appellee returned to work on June 15, 1998. On November 21, 2001, a hearing was held before the administrative law judge on the issue of the anatomical impairment rating for appellant’s respiratory system.

According to the ALJ’s opinion of February 21, 2002, appellee, who performed maintenance work, fractured several ribs on his left side, which resulted in a hemorrhagic pleural effusion, when he fell three or four feet from a ladder and landed on a five-gallon bucket. The ALJ stated that Dr. Jack A. Griebel, Jr., a pulmonologist and critical care specialist, began treating appellee in April of 1998. Further, the ALJ observed that Dr. Griebel testified that he drained the fluid between appellee’s lung and chest wall so that appellee’s lung could more fully expand and allow normal expiration. In May of 1998, Dr. Griebel suggested that appellee return to light duty work, and he continued to prescribe medication and see appellee through August of 1998.

The ALJ further wrote that Dr. Griebel again saw appellee in January of 1999, when appellee complained of occasional difficulty breathing and had mild expiratory wheezing with maximal expiratory effort while not at rest. The doctor noted that the wheezing was a sign of obstructive lung disease, which would result from smoking or from emphysema. Further, Dr. Griebel noted that appellee had some chronic scarring in his lung base and that fluid and a contused lung could cause scarring. Also, Dr. Griebel explained that appellee had a strong blow to the chest that caused bloody fluid to build up and that it would be possible to have a contused lung concomitant with the fluid.

According to the ALJ, Dr. Griebel saw appellee on May 12, 1999, for shortness of breath, coughing, and occasional wheezing. The doctor concluded that appellee had reactive airway disease syndrome, asthma secondary to pulmonary-contusion syndrome, as a result of his fall and multiple rib fractures. He also opined that appellee had acute bronchitis exacerbating the reactive airway disease syndrome with asthma flair, resolving, and chronic muscu-loskeletal pain from the scapular and rib fracture injury.

The ALJ stated that in November of 1999, Dr. Griebel opined that appellee suffered from reactive airway disease with probable “overlined” chronic obstructive pulmonary disease. The doctor did not, however, know if the chronic obstructive pulmonary disease was preexisting or if there was any connection to the rib fractures. On August 23, 2000, Dr. Griebel’s examination revealed that appellee’s thorax was of normal AP diameter, which indicated that any chronic obstructive lung disease was not “real severe.” Dr. Griebel stated that reactive airway disease syndrome could be generated from a pulmonary contusion, a blow to the lung at the time of the trauma, but that he was unable to determine whether appellee had a pulmonary contusion because the pleural fluid would have been hiding it at the time.

The ALJ wrote that on January 8, 2001, Dr. Griebel further opined that appellee had significant obstructive airway defect abnormalities on his pulmonary-function testing, as documented on the values of November 18, 1999, with an FEV1 of 2.13, fifty-three percent of predicted, and that this suggested, by American Medical Association criteria, a permanent impairment of thirty percent to the body as a whole. Dr. Griebel believed that the test was calibrated daily. Further, Dr. Griebel noted that appellee continued to require regular use of inhaled bronchodilator therapy and had some limitation of his lung capacity secondary to pleural thickening and scarring from the severe rib fractures. Dr. Griebel also asserted that it was unclear how much of appellee’s current lung impairment, reactive airway disease and chronic obstructive pulmonary disease, was secondary to the trauma. Dr. Griebel did note that appellee was relatively asymptomatic prior to the injury and had been symptomatic after the injury.

Also, according to the ALJ, Dr. Griebel explained that two conditions were included in appellee’s impairment rating: reactive airway disease and chronic obstructive pulmonary disease. Dr. Griebel stated that while the chronic obstructive pulmonary disease was not likely to be due to the trauma, the reactive airway disease component could well all be due to the trauma. Further, the doctor stated that it was certainly a possibility that the chronic obstructive pulmonary disease was aggravated by the injury. Dr. Griebel concluded that it would seem a logical conclusion and it was his opinion that if appellee had no symptoms prior to the injury and has symptoms after the injury, there was an aggravation of the chronic obstructive pulmonary disease. Dr. Griebel further stated that if there has been an aggravation of the preexisting condition combined with the reactive airway disease, which was secondary to the injury, the impairment rating would be thirty percent.

After reciting the above testimony, the ALJ stated that the “assumption that there was no prior symptom of [chronic obstructive pulmonary disease] is consistent with the medical record and [appellee’s deposition] testimony.” Further, the ALJ noted that in estimating appellee’s impairment, Dr. Griebel referred to the American Medical Association’s Guides to the Evaluation of Permanent Impairment (4th ed. 1993), and according to one table, a twenty-six to fifty percent moderate impairment of the whole person was justified when FEV1 was between forty-one to fifty-nine percent of predicted. The ALJ wrote that “the only specialist in pulmonology, [appellee’s] treating physician, tested him objectively and rendered an opinion consistent with the AMA Guides.” The ALJ further stated that “[ajlthough the claimant could possibly have had pulmonary problems related to his smoking, or even to emphysema, [appellee’s] testimony and the medical record do not support such an assumption.” The ALJ concluded that a preponderance of the evidence supported appellee’s request for benefits for permanent anatomical impairment.

Appellants appealed the ALJ’s decision to the Commission, and the Commission affirmed the ALJ. In its opinion, the Commission stated that it had “carefully conducted a de novo review of the entire record,” that the ALJ’s findings of fact were correct, that it was affirming the ALJ’s decision, and that it adopted his opinion, including his findings of fact and conclusions of law.

On appeal from the Commission’s decision, appellants raise three issues.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Tempworks Management Services, Inc. v. Gary Jaynes
2020 Ark. App. 70 (Court of Appeals of Arkansas, 2020)
O'Guinn v. Little River Memorial Hospital
2013 Ark. App. 593 (Court of Appeals of Arkansas, 2013)
Vite v. Vite
377 S.W.3d 453 (Court of Appeals of Arkansas, 2010)
Hernandez v. Wal-Mart Associates, Inc.
337 S.W.3d 531 (Court of Appeals of Arkansas, 2009)
Enterprise Products Co. v. Leach
316 S.W.3d 253 (Court of Appeals of Arkansas, 2009)
Stone v. Dollar General Stores
209 S.W.3d 445 (Court of Appeals of Arkansas, 2005)

Cite This Page — Counsel Stack

Bluebook (online)
115 S.W.3d 823, 83 Ark. App. 26, 2003 Ark. App. LEXIS 611, Counsel Stack Legal Research, https://law.counselstack.com/opinion/excelsior-hotel-v-squires-arkctapp-2003.