Martin v. Jensen Construction Co.

374 S.W.3d 774, 2010 Ark. App. 294, 2010 Ark. App. LEXIS 303
CourtCourt of Appeals of Arkansas
DecidedApril 7, 2010
DocketNo. CA 09-210
StatusPublished
Cited by2 cases

This text of 374 S.W.3d 774 (Martin v. Jensen 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
Martin v. Jensen Construction Co., 374 S.W.3d 774, 2010 Ark. App. 294, 2010 Ark. App. LEXIS 303 (Ark. Ct. App. 2010).

Opinions

RITA W. GRUBER, Judge.

| T This workers’ compensation case involves appellant Grady Martin Jr.’s claims for a compensable neck injury. Appellee Jensen Construction Company initially accepted the compensability of the injury, which Martin sustained in September 1999 when he fell from a ladder onto rip-rap. Martin underwent separate cervical surgeries in January and December 2001, first at level C3^4 and then at C5-6. Jensen controverted benefits after the second surgery, and a hearing took place before an administrative law judge in 2003. The law judge issued an opinion that subsequently was appealed to the Workers’ Compensation Commission. In 2005 the Commission awarded Martin a twenty-five-percent wage-loss disability beyond his fifteen-percent anatomical impairment and found that he had proven | entitlement to medical treatment related to his compen-sable cervical injury, including the two surgeries. The Commission found that a lumbar MRI was not reasonably necessary in connection with the compensable injury, that Martin had not sustained a lumbar injury, and that he was not entitled to treatment for his lumbar spine as a com-pensable consequence of the cervical injury. The 2005 decision was not appealed to this court.

In February 2006 Martin underwent surgery at a third level of his cervical spine, C4-5. Litigation ensued when he claimed additional benefits, asserting that his physical condition had worsened since the time of the Commission’s decision in 2005. The parties stipulated at a 2008 hearing that the Commission’s 2005 decision was final and had become the law of the case. The administrative law judge found that Martin failed to prove that he was permanently disabled or was entitled to additional wage loss beyond the 2005 award. The Commission adopted and affirmed the law judge’s opinion in a decision of January 6, 2009.

The Commission refused in its 2009 decision to revisit its specific finding in 2005 that Martin had not sustained a compensa-ble lumbar injury, noting that it was res judicata and the law of the case. The Commission found that Martin had proven that medical treatment related to the cervical spine, including the third cervical surgery, was reasonable, necessary, and related to his compensable neck injuries; he had proven entitlement to an additional two percent whole-body anatomical impairment due to the third surgery; he had failed to prove that he was permanently and totally disabled; and he had failed to prove entitlement to additional wage-loss disability beyond that already awarded by the 2005 opinion. Martin now | ..¡appeals the Commission’s decision, raising two points. He contends that substantial evidence does not support the denial of his claims for permanent total disability or additional wage-loss disability benefits beyond the 2005 award. We discuss the two points as one, and we affirm.

The wage-loss factor is the extent to which a compensable injury has affected the claimant’s ability to earn a livelihood. Sivixay v. Danaher Tool Group, 2009 Ark. App. 786, 359 S.W.3d 433. When a claimant has an impairment rating to the body as a whole, the Commission has the authority to increase the disability rating based upon wage-loss factors. Id. The Commission is charged with the duty of determining disability based upon a consideration of medical evidence and other factors affecting wage loss, such as the claimant’s age, education, and work experience. Id.; see Ark.Code Ann. § 11-9-522(b)(1) (Repl.2002). Permanent total disability is the inability, because of com-pensable injury, to earn any meaningful wages in the same or other employment. See Ark.Code Ann. § 11-9-519(e)(1) (Repl. 2002).

The injured party bears the burden of proof in establishing entitlement to benefits under the Worker’s Compensation Act and must sustain that burden by a preponderance of the evidence. Dearman v. Deltic Timber Corp., 2010 Ark. App. 87, 377 S.W.3d 301. It is within the Commission’s province to reconcile conflicting evidence and to determine the true facts. Stone v. Dollar Gen. Stores, 91 Ark.App. 260, 209 S.W.3d 445 (2005). The evidence is viewed in the light most favorable to the Commission’s decision, and the decision will be ^affirmed when it is supported by substantial evidence. Ester v. Nat’l Home Ctrs., Inc., 335 Ark. 356, 981 S.W.2d 91 (1998). Substantial evidence exists if fair-minded persons could reach the same conclusion when considering the same facts. Id. Where the Commission denies benefits because the claimant has failed to meet his burden of proof, the substantial-evidence standard of review requires that we affirm if the Commission’s decision displays a substantial basis for the denial of relief. Frances v. Gaylord Container Corp., 341 Ark. 527, 20 S.W.3d 280 (2000).

At the time of the hearing, appellant was forty-eight years old with a ninth-grade education. He testified that before the third surgery, he felt as if he were becoming paralyzed: he required help in the shower because he could not use his hands to hold soap, he could hardly move his legs, and he had numbness from the neck down. He testified that the third surgery helped but the pain afterward increased, and it had been suggested that he needed a morphine pump. He said he was taking Excedrin three to four times a day and experienced excruciating pain daily. He said he could walk only seven to eight minutes at a time, had pain when standing or sitting too long, and had pain when he tried to perform housework or drive a vehicle. He testified that he had been determined permanently and totally disabled for purposes of social security.

Additionally, Martin testified that his neck was better, he felt better after his third surgery, and he had told his surgeon that the surgery was very, very helpful and that he was happy about it. He said that at the time of his 2003 hearing, drowsiness from a previous 1 r,medication had been a primary reason he had felt that he could not work. He testified that he no longer took the same medicine and no longer had the cane he had used at the first hearing. He also said he had gone fishing five times the previous month, could drive his car, and could use a self-propelled lawnmower, although it hurt him. He said that his lower back had gotten worse and worse, and so had his neck. Other problems he testified to were tiredness and weakness; pain inside his ears that affected his jaws and went to his hands, legs, and feet; pain all over his body almost every day; and nausea, vomi1> ing, heartburn, abdominal gas, and irritability.

A March 1, 2006 report by Martin’s surgeon, Dr. Lee M. Buono, stated that Martin could walk without a cane and that he and his wife were ecstatic with the results of the third surgery, which the doctor concluded was a “home run.” On April 3, 2006, Dr. Buono reported that Martin’s numbness and walking were “much better,” he was still doing quite well and was very happy with the surgery results, he was experiencing some swelling but no significant pain, and Mobic would be started for arthritis in his joints. On June 5, 2006, Dr.

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Bluebook (online)
374 S.W.3d 774, 2010 Ark. App. 294, 2010 Ark. App. LEXIS 303, Counsel Stack Legal Research, https://law.counselstack.com/opinion/martin-v-jensen-construction-co-arkctapp-2010.