Inskeep v. Emerson Electric Co.

983 S.W.2d 132, 64 Ark. App. 101, 1998 Ark. App. LEXIS 713
CourtCourt of Appeals of Arkansas
DecidedNovember 11, 1998
DocketCA 98-502
StatusPublished
Cited by6 cases

This text of 983 S.W.2d 132 (Inskeep v. Emerson Electric Co.) 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
Inskeep v. Emerson Electric Co., 983 S.W.2d 132, 64 Ark. App. 101, 1998 Ark. App. LEXIS 713 (Ark. Ct. App. 1998).

Opinion

Margaret Meads, Judge.

This is an appeal from the Arkansas Workers’ Compensation Commission. Appellant, a truck driver for appellee Emerson Electric, suffered a compensable injury in September 1977 when the truck that he was driving overturned, pinning him in the truck for several hours and killing his driving partner. Appellant suffered injuries to his left leg and spine that required two leg surgeries and five back surgeries, including fusions from L3 to the sacrum. He received permanent partial impairment ratings of twenty-five percent to the left leg and thirty-five percent to the body as a whole for the spine. Nonetheless, appellant returned to work for Emerson in 1986. On January 2, 1996, appellant was involved in two accidents as a result of icy road conditions while driving a tractor-trailer rig with a partner. At the time the first accident occurred, appellant was in the sleeper; he was driving when the second accident occurred.

At a hearing held August 7, 1996, on appellant’s workers’ compensation claim, appellant contended that he was entitled to payment of further medical expenses and six months of additional temporary total disability benefits. Issues regarding change of physician and extent of permanent disability were reserved. On September 16, 1996, an administrative law judge (ALJ) entered an order holding that appellant sustained an aggravation, or new injury, of his preexisting condition on January 2, 1996; that as a result of his compensable injuries he was entitled to temporary total disability benefits beginning with his last day worked and ending on February 7, 1996; and that he is entitled to payment of all medical expenses incurred for treatment by Dr. Tyrer subsequent to January 2, 1996. No appeal was taken from this order.

On January 8, 1997, a hearing was held on the issues of change of physician, additional permanent partial impairment rating, and wage-loss disability. The transcript and exhibits from the August 7, 1996, hearing were incorporated by reference, and additional evidence was received. In an opinion entered February 25, 1997, the ALJ found that appellant did not sustain additional permanent partial impairment to the body as a whole as a result of the January 2, 1996, accidents; that appellant sustained a thirty-five percent impairment to his wage-earning capacity; and that appellant’s authorized family physician, Dr. Shedd, is authorized to refer appellant to Dr. Larry Mahon for future medical maintenance as necessary. In a supplemental opinion filed March 24, 1997, the ALJ found that appellant sustained an additional permanent partial impairment of five percent to the body as a whole as a result of the January 2, 1996, incidents, and that appellant’s compensation rate should be based upon his January 1996 earnings.

The full Commission affirmed the ALJ’s award of a thirty-five percent wage-loss disability and the change of physician. Flowever, it found that appellant failed to prove that he sustained an additional five percent permanent anatomical impairment and that appellant’s compensation rate should be based on his 1977 earnings rate. Appellant appeals from the reversal of the five percent anatomical impairment and the application of his 1977 earnings.

There was evidence that appellant continued to have problems with his leg and back after he returned to work in 1986, and that after the January 2, 1996, accidents he hurt between his shoulder blades and in the upper part of his back. On January 4, 1996, Dr. Shedd took appellant off work. Appellant was subsequently treated by Dr. Roy Tyrer, Jr., and underwent an independent medical evaluation by Dr. Larry Mahon. Appellant has not been physically able to drive a truck since the January 2 accidents. Since that time, appellant has not worked for anyone, but he had a construction business in which he did supervisory work and actual labor.

Appellant testified, however, that he stopped working in that business in November 1996 and turned it over to his son, because he got to the point where he was not having “a good day.” Mentally and physically he could not do the work. His bad days got closer together, he had no one to take care of him “prescription wise,” and it got to the point where when he tried to do anything at all, he would get “down” and could not get “up.” He said that he would just go home. Appellant now has constant pain; there are days that he cannot get out of the house because of pain even if he has not done anything. The pain comes all of a sudden, it “knocks him to his knees,” and it is all he can do to get back “up.”

Appellant testified further that he now has problems that he did not have prior to January 1996. The upper part of his back gives him problems; he cannot raise his arm; it feels as if he is having a heart attack; the pain is like a knife and limits his motion on his right side. He said that he is worse now than he was before the 1996 accidents.

Dr. Tyrer reported on January 29, 1996, that appellant had been troubled with upper lumbar discomfort extending into the interscapular area since the January accidents. His impression was mild to moderate thoracal lumbar muscle sprain. He did not feel that appellant sustained significant additional injury in the January accidents. A January 31, 1996, isotope bone scan showed increased activity in the lower lumbar area where appellant had the prior spinal fusion, and increased activity in the right rib cage and in the left tibia below the knee, both of which are areas where appellant had a prior injury. An MRI of appellant’s thoracic spine performed March 18, 1996, showed slight disc dessication in the mid-thoracic area without evidence of intervertebral disc herniation or other definite abnormality. On April 17, 1996, Dr. Tyrer reported that he told appellant that he did not believe any additional treatment was indicated or would be beneficial, and he did not think that the January accidents had any appreciable adverse effect on appellant’s preexisting chronic low-back problem.

Dr. Larry Mahon’s report dated June 3, 1996, recites that appellant has pain in his low back and numbness in his toes, the back of his right thigh, and his calf. He also has some aching pain between his shoulders and aching discomfort of the left lower leg associated with weather changes. AP and lateral x-rays of his thoracic spine reveal extensive osteoarthritis with bone spurring. Based upon the history, Dr. Mahon opined that appellant’s new complaints concerning his mid-thoracic area were apparently due to one of the January 1996 injuries. It was his further opinion that appellant sustained permanent aggravation of his prior existing lumbar pathology as a result of the January 1996 injury, and assuming appellant’s history was correct, the permanent aggravation contributed an additional five percent permanent partial impairment to the body as a whole.

Dr. Mahon wrote that he was surprised appellant was able to perform the duties of a truck driver since 1982 [sic] with his history of chronic back problems and multiple surgeries; that he must be a rather stoic individual very desirous of remaining employed; that his work tolerance during that time was marginal; and that the additional injuries and symptomatology resulted in appellant’s inability to return to that level of activity.

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Bluebook (online)
983 S.W.2d 132, 64 Ark. App. 101, 1998 Ark. App. LEXIS 713, Counsel Stack Legal Research, https://law.counselstack.com/opinion/inskeep-v-emerson-electric-co-arkctapp-1998.