Main v. Metals

377 S.W.3d 506, 2010 Ark. App. 585, 2010 Ark. App. LEXIS 642
CourtCourt of Appeals of Arkansas
DecidedSeptember 15, 2010
DocketNo. CA 10-111
StatusPublished
Cited by11 cases

This text of 377 S.W.3d 506 (Main v. Metals) 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
Main v. Metals, 377 S.W.3d 506, 2010 Ark. App. 585, 2010 Ark. App. LEXIS 642 (Ark. Ct. App. 2010).

Opinion

LARRY D. VAUGHT, Chief Judge.

|,Appellant Michael Main appeals a decision of the Arkansas Workers’ Compensation Commission finding that he was not entitled to an additional anatomical-impairment rating pursuant to Ark.Code Ann. § 11-9-521 (Repl.2002). He also claims that the Commission erred in its decision to allow his employer an offset for an advanced payment of compensation as defined by Ark.Code Ann. § 11-9-807 (Repl. 2002). We affirm in part and reverse in part.

Main, who was born on October 28,1968, has a high-school education. For approximately eighteen years, he worked for McGehee Metals. His jobs ranged from operating heavy equipment and ordering and selling parts to performing mechanic work. On September 19, 2005, Main was shot during a robbery with a sawed-off shotgun armed with three-inch, magnum-steel shot.1 He sustained injuries to his left arm and torso (chest, liver, |2and intestinal track), resulting in a prolonged hospitalization, numerous surgeries, post-traumatic-stress syndrome, and depression with psychotic (hallucinations) features. Dr. Charles Mabry treated Main’s chest and abdomen, and Dr. John Lytle treated Main’s left elbow. Main also received counseling at Southeast Arkansas Behavo-rial Healthcare from Drs. Sizemore, Wooten, and Malik.

On August 24, 2007, Dr. Lytle assessed an eighty-eight percent impairment rating to Main’s left arm based on nerve dysfunction, loss of the elbow joint, and loss of hand strength. In his report, Dr. Lytle stated that Main had reached maximum medical improvement and further stated:

I have recommended to Mr. Main that he have further surgery to stabilize his left elbow.... He has restricted lifting of any weight with his left arm. He has no functional use of the left arm or hand.... I have recommended effusion of the left elbow. According to the ‘Guides to the Evaluation of Permanent Impairment,’ Fourth Edition, as published by the American Medical Association, I see his permanent impairment to the left arm to be a combination of the nerve dysfunction from the complete transsection of the ulnar nerve above the elbow with injuries to the radial nerve, combined with the loss of the elbow joint from massive trauma from gunshot wound, and the loss of strength in his hand. The impairment due to the loss of motor and sensory function of the ulnar nerve above mid forearm is 50 percent to the upper extremity. This is rated according to table 15 page 54. The impairment due to the loss of the elbow joint is 70 percent to the upper extremity and 42 percent to the person as a whole according to table 18 page 58. The impairment due to the loss of strength is computed to be a 45 percent strength index loss. According to table 34 page 65 is a 20 percent upper extremity impairment. Using the combined value table on page 324 for each of these numbers this is equivalent to 88 percent to the upper extremity. Using table three page 20. This is then equivalent to 53 percent to the person as a whole. I have recommended to Mr. Main that he consider an arthrodesis of the elbow.
|3I do not expect that this would alter his permanent impairment however certainly it would make his daily life more functional.

According to Dr. Lytle’s December 25, 2008 report

Michael Main sustained a massive extraordinary wound to his [left] arm. He has complete loss of function of the ulnar nerve and an unstable elbow joint. He can move his index finger, long finger and thumb with limited amount of grip. This is not very functional. I would say that his use of the arm is only slightly better than an amputation. You have previously reviewed the permanent impairment rating and I feel that this is accurate.

Main’s psychiatric records mention an incident where he was involved in a motor-vehicle accident after the robbery (in 2006) and sought chiropractic care. Two medical reports (and Main’s own testimony) stated that Main’s mental stress was exemplified by his reaction to a back-firing vehicle. Dr. Wooten’s report of August 27, 2007, states that Main cannot work and is unemployable. Main also testified that his left hand remains cold at all times and that he developed post-traumatic-stress disorder (PTSD) as a result of the attack. He further stated that he is unable to work based on the cumulative effect of the PTSD, the side effects of medication, and his physical limitations.

On September 18, 2007, Main signed a ' Form AR-C, Claim For Compensation. He contended that he was entitled to additional benefits, including additional temporary total and temporary partial, additional permanent partial, additional medical expenses, rehabilitation, attorney’s fees, child support, and “other.” In fact, Main, who has no legal training and was unrepresented at the time, placed a check in every box.

The owner of McGehee Metals, Edward McGehee, is an eighty-two-year-old man |4who has been in the metal business for several decades. He testified that he was unaware of changes in the law concerning the requisite number of employees needed to trigger mandatory workers’ compensation insurance. However, after this incident, he consulted an attorney and has remedied the situation by acquiring workers’ compensation insurance for his employees.

Specifically, at the February 20, 2009 hearing, Edward McGehee was questioned by his attorney:

Q. Did you have any kind of insurance on your business before Mr. Main’s situation?
A. No....
Q. When he was hurt, did you realize you owed him some worker’s (sic) compensation benefits?
A. Yeah, I knew I was going to have to pay worker’s (sic) comp sooner or later.
Q. Okay. And did you pay for Mr. Main’s [sic] medical bills?
A. Paid all his medical bills, hospital and everything.
Q. Do you have any idea how much you have paid on medical bills?
A. It’s been over five hundred thousand dollars or more.... That’s counting the wages and everything.
Q. Okay. Alright. Now you paid Mr. Main, you continued paying him his salary and that was four hundred and eighty dollars a week, is that right?
A. Yes sir.
UQ. [All right.] Did you consider that to be a gift to Mr. Main?
A. No, I didn’t consider it a gift, I figured I was going to have to pay it sooner or later through workman’s comp.
Q. Okay, did you understand that under workman’s comp, you might have to pay him less than four hundred and eighty dollars a week?
A. Well, I didn’t at first, I figured he needed the money and his wife was sick too, so that’s why I paid it for a long time. Until they told me different....
Q. Did you know whether or not it was more than four hundred eighty dollars a week or less than that four hundred and eighty dollars a week?
A. Less.
Q.

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Bluebook (online)
377 S.W.3d 506, 2010 Ark. App. 585, 2010 Ark. App. LEXIS 642, Counsel Stack Legal Research, https://law.counselstack.com/opinion/main-v-metals-arkctapp-2010.