Milton v. K-Tops Plastic Mfg. Co.

392 S.W.3d 364, 2012 Ark. App. 175, 2012 WL 556448, 2012 Ark. App. LEXIS 271
CourtCourt of Appeals of Arkansas
DecidedFebruary 22, 2012
DocketNo. CA 11-796
StatusPublished
Cited by2 cases

This text of 392 S.W.3d 364 (Milton v. K-Tops Plastic Mfg. 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
Milton v. K-Tops Plastic Mfg. Co., 392 S.W.3d 364, 2012 Ark. App. 175, 2012 WL 556448, 2012 Ark. App. LEXIS 271 (Ark. Ct. App. 2012).

Opinion

CLIFF HOOFMAN, Judge.

_jjAppellant Sheila Milton appeals the decision of the Workers’ Compensation Commission finding that she failed to prove that she was permanently and totally disabled and assigning twenty-five percent wage-loss disability. Appellee K-Tops Plastic Manufacturing Company (K-Tops) cross-appeals from the Commission’s finding that the Second Injury Fund has no liability. We affirm on direct appeal and cross-appeal.

Milton sustained a back injury on May 5, 2006, when working for K-Tops. The compensability of her injury was the subject of previous litigation, which ended with the Commission’s decision on July 8, 2009, finding that Milton had suffered a compensable back injury, was entitled to medical treatment and temporary total disability, and had sustained an anatomical impairment of twelve percent to the body as a whole. This decision was not ^appealed.

On October 8, 2010, a hearing was held before an administrative law judge (ALJ) to determine Milton’s entitlement to permanent total disability benefits or wage-loss benefits and the liability of the Second Injury Fund. Milton was a forty-nine-year-old woman who had gone to school through the seventh or eighth grade and later obtained her GED. She had no further training or degrees. Milton worked for a shoe factory off and on for more than twenty years performing manual labor. In 2003, she worked for Wal-Mart for a short period of time stocking shelves and sustained a work-related injury. In January 2005, Dr. Harry Friedman performed back surgery related to this injury. Milton testified that she recovered completely from that injury and subsequently worked at Dollar General for a few months without restrictions, aside from using “common sense.”

Milton began working for K-Tops in February 2006. On May 5, 2006, she twisted her back while pulling a cage container. She did not work after this date and ultimately had surgery in September 2006 performed by Dr. Sam Murrell. Dr. Murrell performed another surgery in March 2007. The parties stipulated that Milton reached maximum medical improvement and the end of her healing period on June 20, 2007. On that date, Dr. Murrell released Milton to light-duty work with lifting of no more than twenty pounds. Milton continued to see Dr. Mur-rell for follow-up visits and refills of her prescriptions until March 2008. After that, Milton regularly saw a family medicine doctor, Dr. James Franks.

Milton testified that since her March 2007 surgery, her back pain had worsened. She testified that her back pain was constant and that she could not do the things she used to do, |sincluding fish, hike, swim, camp, shop, cook, and watch her grandson play sports. She said that walking caused her legs to spasm and the farthest distance she walked was about 100 yards to her mailbox. She testified that she could not shop at Wal-Mart or wash dishes for more than ten minutes without her back “acting up” and requiring her to lie down. She said that she would fall if she was on her feet for very long and that she had previously hit her shoulder and head upon falling, which made her scared to walk. She limited her driving because she was afraid her leg spasms would affect her driving. She said that the heaviest thing she lifts is her pillow and that she has problems getting in and out of the bathtub. Milton had been in two car accidents since her injury, but she said that they did not affect the condition of her back. Milton said that she lies flat on her back in bed or on her couch for seven hours a day. She has not worked anywhere since her injury. She said she wanted to work but her back would not let her, and she has not tried looking for a job because she did not think anyone would hire a person in her shape. Milton said that she took numerous pain medications and had experienced side effects, including loss of memory, dizziness, inability to concentrate, and nausea. Milton’s husband, Rodney Milton, corroborated her testimony that she recovered from her 2005 surgery but has had problems since the May 2006 injury.

The ALJ found that Milton was permanently and totally disabled and that the Second Injury Fund had no liability. K-Tops appealed to the Commission, which reversed the ALJ’s finding that Milton proved she was permanently totally disabled. The Commission found that she was entitled to wage-loss disability in the amount of twenty-five percent. The Commission affirmed the finding that the Second Injury Fund was not liable. Milton now 14appeals the findings that she was not permanently totally disabled and was not entitled to more than twenty-five percent wage loss. K-Tops brings a cross-appeal, arguing that it was error to find that the Fund was not liable.

In appeals involving claims for workers’ compensation, we view the evidence in the light most favorable to the Commission’s decision and affirm the decision if it is supported by substantial evidence. Leach v. Cooper Tire & Rubber Co., 2011 Ark. App. 571, 2011 WL 4477865. Substantial evidence exists if reasonable minds could reach the Commission’s conclusion. Id. The issue is not whether the appellate court might have reached a different result from the Commission; if reasonable minds could reach the result found by the Commission, the appellate court must affirm. Id.

Milton argues that she is no longer able to work and is entitled to permanent and total disability benefits. Pursuant to Arkansas Code Annotated section 11-9-519(e)(1) (Repl.2002), “permanent total disability means inability, because of compen-sable injury or occupational disease, to earn any meaningful wages in the same or other employment.” The burden of proof is on the employee to prove inability to earn any meaningful wages in the same or other employment. Ark.Code Ann. § 11-9-519(e)(2). Permanent total disability shall be determined in accordance with the facts. Ark.Code Ann. § 11 — 9—519(c).

When a claimant has been assigned an anatomical impairment rating to the body as a whole, the Commission has the authority to increase the disability rating, and it can find a claimant totally and permanently disabled based upon wage-loss factors. Lee v. Alcoa Extrusion, Inc., 89 Ark.App. 228, 201 S.W.3d 449 (2005). The wage-loss factor is the extent |sto which a compensable injury has affected the claimant’s ability to earn a livelihood. Id. The Commission is charged with the duty of determining disability based upon a consideration of medical evidence and other matters affecting wage loss, such as the claimant’s age, education, and work experience. Id. In considering factors that may affect an employee’s future earning capacity, the court considers the claimant’s motivation to return to work, since a lack of interest or a negative attitude impedes our assessment of the claimant’s loss of earning capacity. Id.

The Commission stated that it gave significant evidentiary weight to the opinion of Dr. Murrell that Milton was able to perform restricted work duties. The Commission also found that “there is no probative evidence of record corroborating the claimant’s testimony that she is physically required to remain supine for extended periods up to seven hours daily.” Furthermore, the Commission found that Milton was not motivated to find appropriate gainful employment within her permanent physical restrictions.

Milton argues that the Commission erred in finding that she could work based on Dr. Murrell’s June 20, 2007 report because Dr.

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392 S.W.3d 364, 2012 Ark. App. 175, 2012 WL 556448, 2012 Ark. App. LEXIS 271, Counsel Stack Legal Research, https://law.counselstack.com/opinion/milton-v-k-tops-plastic-mfg-co-arkctapp-2012.