Johnson v. Latex Construction Co.

232 S.W.3d 504, 94 Ark. App. 431, 2006 Ark. App. LEXIS 208
CourtCourt of Appeals of Arkansas
DecidedMarch 15, 2006
DocketCA 05-1140
StatusPublished
Cited by6 cases

This text of 232 S.W.3d 504 (Johnson v. Latex Construction 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
Johnson v. Latex Construction Co., 232 S.W.3d 504, 94 Ark. App. 431, 2006 Ark. App. LEXIS 208 (Ark. Ct. App. 2006).

Opinion

David M. Glover, Judge.

Appellant, David Johnson, suffered an admittedly compensable injury to his back while working for appellee Latex Construction Company. At a hearing on July 29, 2004, the ALJ was presented with the following issues pertinent to this appeal: 1) whether appellant was entitled to additional temporary-total disability benefits, and 2) whether appellant had sustained wage loss in excess of his assigned anatomical impairment rating. The ALJ concluded 1) that appellant was not entitled to additional TTD benefits for the period beginning October 30, 2003, and ending March 4, 2004, and 2) that he was entitled to permanent impairment in the form of wage-loss disability in the amount of forty-five percent above his five-percent permanent-impairment rating to the body as a whole. The Commission modified the ALJ’s wage-loss determination and concluded that appellant was only entitled to a ten-percent loss in wage-earning capacity, thereby giving him fifteen percent in total-permanent impairment. The Commission affirmed the ALJ’s denial of TTD benefits beyond the date of October 30, 2003. This appeal followed. We reverse and remand for an award of benefits consistent with this opinion.

Appellant was employed by appellee Latex Construction as a welder’s helper when he sustained a compensable injury to his back on February 7, 2003, while working on a construction project in Alabama. Although appellant was a trained welder, he explained that it was easier to find regular work as a helper. Appellant was first treated for his injury by Dr. Greg Massanelli at an emergency room in Alabama. A February 13, 2003 MRI revealed “mild dehydration of the discs at L3-4, L4-5 with anterior spondylitic changes and mild disc bulge at L3-4. No other abnormalities noted.” After appellant returned to Arkansas, the Commission granted him a change of physician to Dr. Jeffrey DeFIaan, who eventually referred appellant to Dr. Edward Saer. Dr. Saer subsequently referred appellant to Dr. Sundar Krishnan. A second MRI was performed on July 31, 2003, as ordered by Dr. Krishnan. It revealed annular tears at L2-3, L3-4, and L4-5, along with small central protrusions at L3-4 and L4-5; however, the study revealed “no definite sign of nerve root impingement.” Dr. Krishnan recommended a discogram, but appellees denied the procedure. Dr. Krishnan appealed the denial, contending that the discogram results might indicate the need for intradiscal electrothermal therapy (IDET) or spinal surgery; however, the request was still denied.

Dr. Krishnan’s notes reveal that he discussed appellant’s condition with Dr. Charles Mauriello, an orthopedic specialist for appellees’ utilization reviewer, and that they agreed the next appropriate step was facet injections. Those injections were performed on November 14, 2003; however, appellees terminated appellant’s temporary-total disability benefits as of October 29, 2003, which was the day that Dr. Krishnan and Dr. Mauriello agreed that the injections were an appropriate next step. As it turned out, the injections were of no help. Appellees agreed in January 2004 to allow a discogram. Dr. Krishnan opined that the discogram and a subsequent CT exam showed mild degenerative changes at L2-3, a posterior annular tear at L3-4, and a small central disc herniation at L4-5. He noted, however, that appellant expressed pain at every level from L2 through SI, even though the L5-S1 disc appeared “pretty much within normal limits.” Pending a functional-capacity evaluation, Dr. Krishnan released appellant from his care on February 11, 2004, concluding that he had nothing left to offer appellant. Dr. Donald Smith performed the functional-capacity evaluation on March 1, 2004. He concluded that appellant had reached maximum-medical improvement, that he had no permanent impairment, and that he was capable of performing medium-level work. Dr. Smith’s review of appellant’s radiographic studies prompted him to opine that they showed “some very mild degenerative changes in the L3-L4 and L4-L5 levels, which are commensurate with the patient’s age and work history. These studies are essentially normal for a patient of this age group.” Dr. Saer released appellant on March 5, 2004, assigning him a five-percent impairment rating to his body as a whole.

On July 5, 2004, a second functional-capacity evaluation was performed by Doin Dahlke. Mr. Dahlke described appellant’s functional limitations, in part, as being “able to sit continuously for 20-25 minutes and stand continuously for 20-25 minutes without a change in postural position. He can return to standing after a 5-10 minute sit break.” Mr. Dahlke concluded that “Mr. Johnson demonstrated the ability to perform work activities at the LIGHT Physical Demand Classification as determined through the Department of Labor for an 8-hour day with the above limitations.”

Bob White, a vocational specialist, was hired by appellant’s attorneys to evaluate appellant. Mr. White concluded, in part, that “a combination of age, education, limited work history (i.e., [appellant] has only done heavy unskilled work during his life) in conjunction with a back injury that has not resolved and for which there is no effective treatment, has effectively eliminated him from returning to work in any capacity.”

Dale Thomas, a vocational consultant, was hired by appel-lees’ attorneys to evaluate appellant. Mr. Thomas concluded:

Mr. Johnson sustained a job related injury to his lower back and has been diagnosed with low back strain. Functional Capacity Testing was performed in March and July of this year. Test results indicate that Mr. Johnson has at least the ability to perform Light work and possibly the ability to perform some types of Heavy work. However, he is not a suitable candidate to return to past work due to the Heavy nature of that work. He is capable of full time work according to the most recent FCE. Past work as a Welder’s Helper has been unskilled. However, the claimant has the skills needed to perform the job of Welder. Mr. Johnson has poor literacy abilities. However, he has some ability to read, write and do simple arithmetic.
Mr. Johnson is capable of working in an unskilled job that falls within the light level of work for a full workday.

In reviewing decisions from the Workers’ Compensation Commission, the appellate court views the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission’s findings, and we affirm if the decision is supported by substantial evidence. Whitlatch v. Southland Land & Dev., 84 Ark. App. 399, 141 S.W.3d 916 (2004). Substantial evidence exists if reasonable minds could reach the same conclusion. Id. When a claim is denied because the claimant has failed to show an entitlement to compensation by a preponderance of the evidence, the substantial-evidence standard of review requires us to affirm if the Commission’s opinion displays a substantial basis for the denial of relief. Id. We do not reverse a decision of the Commission unless we are convinced that fair-minded persons with the same facts before them could not have arrived at the conclusion reached. Ellison v. Therma Tru, 71 Ark. App. 410, 30 S.W.3d 769 (2000).

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Bluebook (online)
232 S.W.3d 504, 94 Ark. App. 431, 2006 Ark. App. LEXIS 208, Counsel Stack Legal Research, https://law.counselstack.com/opinion/johnson-v-latex-construction-co-arkctapp-2006.