McDonald v. Batesville Poultry Equipment

206 S.W.3d 908, 90 Ark. App. 435
CourtCourt of Appeals of Arkansas
DecidedApril 13, 2005
DocketCA 04-872
StatusPublished
Cited by10 cases

This text of 206 S.W.3d 908 (McDonald v. Batesville Poultry Equipment) 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
McDonald v. Batesville Poultry Equipment, 206 S.W.3d 908, 90 Ark. App. 435 (Ark. Ct. App. 2005).

Opinion

Sam Bird, Judge.

This workers’ compensation case presents statutory and factual issues regarding a claimant’s entitlement to permanent total disability benefits after he has sustained a scheduled compensable injury. Appellant Kenneth McDonald suffered a compensable scheduled injury to his right leg on May 5,1999, when he fell through a broken board in the floor of a chicken house while he was running wires for the installation of a ventilation fan. The injury required several surgeries and resulted in a fifty-percent impairment rating to his left lower extremity. Although appellee Batesville Poultry Equipment accepted the impairment rating and related expenses, it controverted McDonald’s claim that his injury rendered him permanently and totally disabled from engaging in gainful employment. Appellee asserted at a hearing before the administrative law judge that, because the injury was a scheduled one, McDonald was statutorily precluded from establishing a claim for permanent total disability.

In an opinion of September 22, 2003, the law judge found that the claim was lodged under Ark. Code Ann. § ll-9-519(c); after considering McDonald’s age, education, work history, and permanent restriction limitations, the law judge found that McDonald was entitled to permanent total disability benefits. The Workers’ Compensation Commission reversed the award in an order of June 17, 2004, finding that Ark. Code Ann. §§ 11 — 9— 521(g) and -519(b) statutorily barred McDonald from recovering permanent total disability benefits because he had a scheduled injury. The Commission further found that, even if our statutes allowed McDonald to recover permanent and total disability benefits, he was not entitled to permanent and total disability benefits under the facts of the case.

McDonald now appeals the denial of his claim, raising two points: he contends that the Commission improperly interpreted Ark. Code Ann. §§ 11-9-521 and -519, and he contends that he is permanently and totally disabled. Appellee has filed a brief asserting that the Commission’s decision is correct. Additionally, appel-lee has filed a motion to strike a nonconforming portion of McDonald’s statement of the case. We grant the motion because we agree with appellee’s assertion that, in contravention of Ark. R. Sup. Ct. 4-2(a)(6) (2004), McDonald has included argument in his statement of the case. Deletion of this portion of the statement of the case, however, does not affect our disposition of the appeal.

We agree with both of McDonald’s points on appeal. The case is remanded to the Commission for application of the proper statute in determining whether McDonald is entitled to claim benefits for permanent and total disability.

I. Statutory Provisions

Regarding the issue of whether McDonald’s claim for permanent total disability was statutorily allowed, the Commission wrote:

Prior to Act 796 of 1993, the Workers’ Compensation Act did not have a statutory provision allowing for permanent and total disability benefits for a scheduled injury. The award for a scheduled injury has always been limited to the schedule unless the claimant established by a preponderance of the evidence that [a] scheduled injury rendered him permanendy and totally disabled under Ark. Code Ann. § 11-9-519. Moser v. Arkansas Lime Co., 40 Ark.App. 108, 842 S.W.2d 456 (1992), Supp. Op., 40 Ark. App. 114, 846 S.W.2d 188 (1993). Act 796 now provides a specific section addressing a claimant’s entidement to benefits in excess of the schedule. Ark. Code Ann. § ll-9-521(g). Accordingly, stricdy construing the Act as the Commission is mandated to do, we find that we are guided and limited by the Act in awarding any benefits for a scheduled injury over and above the amount set forth in the schedule.
Ark. Code Ann. § ll-9-521(g) specifically states that a claimant is not entided to benefits over and above the schedule except as provided in Ark. Code Ann. § 11 — 9—519(b). This provision only provides for permanent and total disability benefits in limited circumstances. A claimant must have lost “both hands, both arms, both legs, [both] eyes, or any two (2) thereof” in order to be deemed permanendy and totally disabled. The Act does not provide for any circumstances in which a claimant with a [scheduled] injury may be permanendy and totally disabled. While we recognize that there may be circumstances in which a claimant with only one scheduled injury who does not satisfy the multiple losses set forth in Ark. Code Ann. § 11-9-519(b) may be permanendy and totally disabled, the Act does not allow for an award of benefits greater than the schedule. Ark. Code Ann. § 11-9-1001 prohibits this Commission from adding coverage or expanding the scope of the statute; accordingly, we find that we cannot look to other factors beyond the loss of the extremities listed in § 519 (b) in determining whether a claimant with a scheduled injury is permanendy and totally disabled.
When we analyze this claim under the provisions of Ark. Code Ann. § ll-9-519(b), we cannot find that the claimant has proven that he is permanendy and totally disabled. First, the claimant did not lose a combination of any of the two extremities listed. In fact, the claimant has not lost any extremity whatsoever. The claimant has a 50% permanent impairment to his left leg. Further, the claimant did not [lose] both of his eyes, nor did he [lose] any combination of the hands, arms, legs, or eyes that would constitute permanent total disability under § 11-9-519(b). In short, a wage-loss determination on a scheduled injury is contradictory to the statutory interpretation.

As his first point on appeal, McDonald contends that the Commission improperly interpreted Ark. Code Ann. §§ 11-9-521 and -519. The relevant portions of Ark. Code Ann. § 11-9-521 (Repl. 2002) state:

(a)An employee who sustains a permanent compensable injury scheduled in this section shall receive, in addition to compensation for temporary total and temporary partial benefits . . . weekly benefits in the amount of the permanent partial disability rate attributable to the injury, for that period of time set out in the following schedule:
(g) Any employee suffering a scheduled injury shall not be entitled to permanent partial disability benefits in excess of the percentage of physical impairment set forth above except as otherwise provided in § ll-9-519(b).

Also relevant to this first point on appeal is Ark. Code Ann. § 11-9-519 (Repl. 2002), which provides in pertinent part as follows:

(b) In the absence of clear and convincing proof to the contrary, the loss of both hands, both arms, both legs, both eyes, or of any two (2) thereof shall constitute permanent total disability.
(c) In all other cases, permanent total disability shall be determined in accordance with the facts.
(e) (1) “Permanent total disability” means inability, because of compensable injury or occupational disease, to earn any meaningful wages in the same or other employment.

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Bluebook (online)
206 S.W.3d 908, 90 Ark. App. 435, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcdonald-v-batesville-poultry-equipment-arkctapp-2005.