Lee v. Alcoa Extrusion, Inc.

201 S.W.3d 449, 89 Ark. App. 228, 2005 Ark. App. LEXIS 70
CourtCourt of Appeals of Arkansas
DecidedJanuary 26, 2005
DocketCA 04-591
StatusPublished
Cited by24 cases

This text of 201 S.W.3d 449 (Lee v. Alcoa Extrusion, 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
Lee v. Alcoa Extrusion, Inc., 201 S.W.3d 449, 89 Ark. App. 228, 2005 Ark. App. LEXIS 70 (Ark. Ct. App. 2005).

Opinion

Terry Crabtree, Judge.

In this workers’ compensation case, the Commission affirmed an administrative law judge’s award to the appellant, Russell Lee, for wage-loss disability in the amount of twenty-five percent. However, the Commission reversed the ALJ’s finding that appellant had been rendered permanently and totally disabled. The Commission agreed with the ALJ that the Second Injury Fund had controverted appellant’s entitlement to wage-loss disability, including the twenty-five percent award. On appeal, appellant claims that substantial evidence does not support the Commission’s conclusion that he failed to prove entitlement to permanent and total disability benefits. On cross-appeal, the Second Injury Fund contends that the Commission erred in finding that it controverted appellant’s entitlement to wage-loss disability benefits. We affirm.

Appellant was born on May 26,1958. After graduating from high school, he secured employment at Alan White Furniture Company in Stamps, Arkansas, where he worked on an assembly line from 1976 to 1977. On April 29, 1977, appellant began working for Howmet, the predecessor to Alcoa. Alcoa manufactures stadium seats, shower doors, and scaffold boards. Appellant testified that he started working for Howmet as a “puller” but advanced to the maintenance department. On August 7, 2001, appellant sustained an admittedly compensable injury to his back while working for Alcoa, for which he underwent surgery on August 29, 2001. Appellant returned to work on light duty after his surgery. However, appellant claimed that he was unable to perform the assigned job duties due to his injury. Appellant has not worked again since that time.

During the course of his employment with Alcoa, appellant suffered at least two injuries to his back prior to August 2001. Appellant testified that in 1990 he and two other employees were working in a hole tightening bolts when he was injured. At that time, appellant was bent over pulling on a wrench when he experienced severe pain in his low back. Appellant reported the injury to his supervisor and was ultimately treated by Dr. Walker. Dr. Walker referred appellant to Dr. Warren Long, an orthopedic physician, and appellant underwent a myelogram. Later, Dr. Long discharged appellant to return to work.

Appellant returned to work for Alcoa and performed his regular job duties in the maintenance department. In December 1994, appellant suffered another injury to his back while working for Alcoa. As a result, the company doctor, who was also appellant’s family physician, Dr. Pullig, treated appellant. In addition, appellant sought treatment from Dr. Wilber Giles, a Little Rock neurosurgeon. Dr. Giles admitted appellant to the hospital and performed a CT scan and a myelogram. Ultimately, appellant was released to return to his regular work duties. Appellant stated that he did not experience any residual effects from his 1994 injury upon returning to work.

On August 7, 2001, while assisting a co-worker, appellant sustained an injury to his low back while moving a bath enclosure. Appellant reported the injury to his supervisor, David McWill-iams. Appellant attempted to return to his regular job duties that day but was unable to complete them. Dr. Patrick Antoon, Alcoa’s new company doctor, treated appellant for his complaints resulting from the August 7, 2001, injury. Dr. Antoon referred appellant to Dr. Robert Germann, an El Dorado neurosurgeon. Dr. Germann ordered an MRI and noted that it reflected a very large herniated disc at the L4-5 on the left. As a result, Dr. Germann performed surgery on appellant on August 29, 2001, in the form of a left L4-5 intra-laminar laminotomy with removal of a herniated disc. Appellant testified that, following the surgery, his pain decreased by a small amount. Thereafter, Dr. Germann referred appellant to a physical therapist. Appellant stated that the physical therapy made his pain worse. A December 10, 2001, report from Dr. Germann noted that appellant was undergoing work-conditioning treatments three times per week followed by a functional-capacity evaluation. During the time appellant received treatment from Dr. Germann, appellant also continued to receive treatment from Dr. Antoon.

Appellant testified that he continued to treat with Dr. Antoon because he was the company doctor and because Dr. Antoon had not released him to go back to work. Dr. Antoon prescribed several medications to appellant. However, appellant stated that while the medicine helped control some of his pain, it did not completely alleviate it.

Appellant testified that he is extremely restricted in his physical capacity because of the severe pain he experiences in his low back, attributable to the August 7, 2001, compensable injury. Appellant noted that he alternates between standing and sitting; however, he finds that he does better when he has an opportunity to lie down. Appellant estimates that he can walk approximately twenty feet before having to stop, stand straight, and rest.

For less than two weeks, appellant returned to light-duty work at Alcoa working at a conveyor belt. He stated that he had to quit because while he was sitting by the assembly line he was required to twist his body to complete his task. While working on the assembly line, appellant had an onset of back pain and “passed out.”

In a report dated February 12, 2002, Dr. Germann opined that appellant had reached maximum medical improvement with a ten percent permanent physical impairment to the body as a whole. Appellant had previously been assessed with a seven percent impairment to the body as a whole by Dr. Carl Goodman relative to the 1994 injury. Dr. Germann noted that appellant’s ten percent impairment included the seven percent previously assessed by Dr. Goodman.

Alcoa acknowledged the three percent permanent impairment resulting from appellant’s August 7, 2001, injury and paid appropriate benefits. Appellant asserted that as a result of the compensable injury he incurred a loss of earning capacity or wage loss in excess of the anatomical impairment. Appellant filed a worker’s compensation claim seeking wage loss disability benefits. Alcoa joined the Second Injury Fund in the claim asserting that any loss of earning capacity suffered by appellant from the August 2001 injury should be the responsibility of the Second Injury Fund.

The Second Injury Fund completed discovery in this matter by taking the deposition of Dr. Aritoon. Sometime after the deposition, the Fund acknowledged liability for wage-loss benefits in the amount of twenty-five percent to the body as a whole. Ultimately, the Fund presented appellant with a check representing the twenty-five percent wage-loss benefits at the hearing before the ALJ. The Second Injury Fund denies that it controverted wage-loss benefits in this claim and denies that any attorney’s fee was owed to appellant’s attorney.

On appeal, appellant claims that substantial evidence does not support the Commission’s conclusion that he failed to prove entitlement to permanent and total disability benefits. Appellant asserts that he had been rendered permanently and totally disabled as a result of the August 7, 2001, compensable injury. We recognize that Alcoa acknowledged liability for medical and permanent disability benefits to correspond with a three percent anatomical impairment from the August 2001 injury.

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Bluebook (online)
201 S.W.3d 449, 89 Ark. App. 228, 2005 Ark. App. LEXIS 70, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lee-v-alcoa-extrusion-inc-arkctapp-2005.