Perry v. Mar-Bax Shirt Co.

698 S.W.2d 302, 16 Ark. App. 133, 1985 Ark. App. LEXIS 2193
CourtCourt of Appeals of Arkansas
DecidedOctober 30, 1985
DocketCA 84-303
StatusPublished
Cited by14 cases

This text of 698 S.W.2d 302 (Perry v. Mar-Bax Shirt 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
Perry v. Mar-Bax Shirt Co., 698 S.W.2d 302, 16 Ark. App. 133, 1985 Ark. App. LEXIS 2193 (Ark. Ct. App. 1985).

Opinion

George K. Cracraft, Chief Judge.

This is the second appeal of this workers’ compensation case. In an unpublished opinion dated October 26, 1982 we remanded the case to the Arkansas Workers’ Compensation Commission for clarification of evidentiary matters and for further review of the record to determine what effect, if any, the evidence as clarified had on the legal issues presented by the parties. In complying with the mandate the Commission found that the appellant had sustained permanent partial disability to the body as a whole. It further found that some portion of the total disability was apportionable to a preexisting disability resulting from arthritis. The Commission found that the degree of additional disability suffered by the claimant as a result of his compensable injury on May 30,1980, “blending both physical impairment and wage loss factors together” amounted to 25% to the body as a whole. Appellant brings this second appeal contending that the Commission erred in not finding him to be totally disabled under the “Odd Lot Rule” and in the alternative that there was no basis for apportionment. We find merit only in his second argument.

Appellant sustained a compensable injury to his back on May 30,1980 while moving a piece of heavy machinery. He was treated by his physician and returned to work on August 10,1980. On September 18, 1980 he left his employment with appellee stating that he had accepted employment at higher pay in a mill in Mississippi. The appellee heard nothing further from appellant until his attorney contacted the company in January 1982.

The employer testified that appellant was a good worker and performed his duties satisfactorily and without complaint for twelve years. There was testimony that had appellant complained about his work or asked, appellee would have assigned him lighter duties. It was stated that appellant gave two reasons for quitting his employment — the mill in Mississippi would pay him almost twice the wages he was then receiving and the machinery in appellee’s mill was getting on his nerves to such an extent that he felt a change was necessary. Appellant testified that before the injury he had experienced no difficulty with his back and was able to perform heavy work. After the injury he began having problems with his nerves and reached a point where he could not sleep at night. He stated that he tried to return to work after the injury but could not because of the pain. His daughter corroborated that testimony.

The appellant was fifty-three years of age and had a second grade education. He had worked most of his life as an unskilled laborer in the lumber industry and in appellee’s shirt factory. He stated that because of his injury he could no longer hunt and fish, garden or properly do his household chores and spent most of his time lying on a couch. He stated that at the time of his job related injury at appellee’s mill he had been “moonlighting” and holding down more than one job.

Dr. Douglas Stevens, a clinical psychologist, opined that appellant could not even perform light duties. Dr. Stevens stated that he was not a candidate for any work without rehabilitation to build his work tolerance and overcome emotional overlay.

Appellant’s treating physician released him to return to work. Appellant was treated by Dr. Ledbetter and Richard M. Logue, both orthopedic surgeons. Both testified that his healing period had ended. Dr. Ledbetter rated the appellant’s permanent partial disability as 15% to the body as a whole which he determined to be a combined rating of the job related injury and preexisting arthritis but was unable to separate the two. Dr. Logue determined his permanent partial disability to the extent of 20 to 30% overall. He attributed from 10% to 15% of his disability to the job related injury since he was working before the injury without complaint, and 10% to 15% to his preexisting arthritis.

The appellant contends that there is no substantial evidence to support a finding that appellant was not totally and permanently disabled. Our courts have long recognized that the wage loss factor, i.e., the extent “to which a compensable injury has affected claimant’s ability to earn a livelihood” rather than the functional or anatomical loss, is generally controlling in workers’ compensation determinations which are made on the basis of medical evidence, age, education, experience and other matters reasonably expected to affect the claimant’s earning power. Rooney & Travelers Ins. Co. v. Charles, 262 Ark. 695, 560 S.W.2d 797 (1978); Glass v. Edens, 233 Ark. 786, 346 S.W.2d 685 (1961).

Although the testimony of Dr. Stevens and the appellant might warrant a finding of total disability the extent of our inquiry on appeal is to determine if the finding of the Commission is supported by substantial evidence and we will affirm if reasonable minds could reach the conclusion the Commission reached. Bankston v. Prime West Corporation, 271 Ark. 727, 610 S.W.2d 586 (Ark. App. 1981).

It is clear from the opinion of the Commission that it considered the wage loss factor set forth in Glass v. Edens, supra. Although the Commission’s knowledge and experience is not evidence, once it has before it firm medical and lay evidence of physical impairment and functional limitations it has the advantage of its own superior knowledge of industrial demands, limitations and requirements and can apply its knowledge and experience in weighing the medical evidence of functional limitations together with other evidence of the manner in which the functional disability will affect the ability of the injured employee to obtain a job and thereby arrive at a reasonably accurate conclusion as to the extent of permanent partial disability as related to the body as a whole. Rooney & Travelers Ins. Co. v. Charles, supra; Bearden Lumber Co. v. Bond, 7 Ark. App. 65, 644 S.W.2d 321 (1983). From our review of the record viewed in the light of these principles, we cannot say that reasonable minds could not reach the Commission’s conclusion.

The appellant next contends the Commission erred in apportioning the total disability between the preexisting disease and the disability attributable to the job related injury. All parties concede that the Commission was correct in concluding that the provisions of Ark. Stat. Ann. § 81-1313(f)(2) (Repl. 1976), which was in effect at the time of the injury, governs the rules of apportionment.

In a series of cases we have held that the question of whether apportionment is proper does not depend upon whether the preexisting disability was work related or otherwise a compensable disability under the act. The rule has been established, however, that the prior impairment, although not actually a compensable disability, must have been of a physical quality sufficient to produce independently some degree of disability before the accident and continued to do so after it. Harrison Furniture Co. v. Chrobak, 2 Ark. App. 364, 620 S.W.2d 955 (1981); Chicago Mill & Lbr. Co. v. Greer, 270 Ark.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Rutherford v. Mid-Delta Community Services, Inc.
285 S.W.3d 248 (Court of Appeals of Arkansas, 2008)
Patterson v. Arkansas Department of Health
33 S.W.3d 151 (Supreme Court of Arkansas, 2000)
Buford v. Standard Gravel Co.
5 S.W.3d 478 (Court of Appeals of Arkansas, 1999)
Ellison v. Therma-Tru
989 S.W.2d 927 (Court of Appeals of Arkansas, 1999)
Haney v. Smith, Doyle & Winters & Continental Insurance
878 S.W.2d 775 (Court of Appeals of Arkansas, 1994)
Grimes v. North American Foundry
872 S.W.2d 59 (Supreme Court of Arkansas, 1994)
Grimes v. North American Foundry
856 S.W.2d 309 (Court of Appeals of Arkansas, 1993)
Lunsford v. Rich Mountain Electric Coop
832 S.W.2d 291 (Court of Appeals of Arkansas, 1992)
Stuart's, Inc. v. Brown
543 So. 2d 649 (Mississippi Supreme Court, 1989)

Cite This Page — Counsel Stack

Bluebook (online)
698 S.W.2d 302, 16 Ark. App. 133, 1985 Ark. App. LEXIS 2193, Counsel Stack Legal Research, https://law.counselstack.com/opinion/perry-v-mar-bax-shirt-co-arkctapp-1985.