Potlatch Corp. v. Word

359 S.W.3d 426, 2009 Ark. App. 772, 2009 Ark. App. LEXIS 929
CourtCourt of Appeals of Arkansas
DecidedNovember 18, 2009
DocketNo. CA 09-536
StatusPublished
Cited by2 cases

This text of 359 S.W.3d 426 (Potlatch Corp. v. Word) 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
Potlatch Corp. v. Word, 359 S.W.3d 426, 2009 Ark. App. 772, 2009 Ark. App. LEXIS 929 (Ark. Ct. App. 2009).

Opinion

ROBERT J. GLADWIN, Judge.

Ii This appeal follows the March 4, 2009 decision of the Workers’ Compensation Commission that reversed the portion of the April 10, 2008 opinion of the Administrative Law Judge that found that appellee had failed to prove that he suffered a compensable injury to his left and right shoulders. The Commission instead found that appellee proved that he had sustained a compensable injury to his left shoulder and that he was entitled to reasonably necessary medical treatment and related temporary-total-disability benefits. Appellants’ sole argument on appeal is that the Commission’s decision is not supported by substantial evidence. We affirm the Commission’s finding regarding compensability, but remand for further consideration regarding appellant-employer’s entitlement to an offset for temporary-total-disability benefits received by appellee related to the left-shoulder injury.

^Appellee is sixty-four years of age (DOB June 29, 1945). He attended secondary school through the tenth grade and subsequently obtained his GED while working for appellant-employer Potlatch Corporation. He began working there in 1978 and worked for appellant-employer for approximately twenty-nine years. At the time of his injury, appellee was working as a maintenance worker.

On either July 29, 2005, or August 11, 2005,1 appellee allegedly injured his shoulders when a door-hanging mechanism to a kiln fell as he and his co-workers were attempting to put the door back on track. The incident was witnessed by three coworkers and immediately reported to ap-pellee’s supervisor. Subsequently, a written report of the incident was completed, but appellee did not report any continuing problems with his shoulders to appellant-employer. After the incident, appellee continued to work until his scheduled vacation on or about November 2, 2005, although testimony indicated' that he did so with some difficulty.

Appellee initially sought medical treatment for his left shoulder with his family physician, Dr. James Marsh, on November 15, 2005, utilizing his personal medical insurance. He was subsequently referred to Dr. Jason Stewart, an orthopedic surgeon. Dr. Stewart saw appellee on November 23, 2005, at which time he recommended an MRI of the left shoulder. The MRI scan revealed a rotator-cuff tear and acromio-clavicular arthritis with l3subacromial-im-pingement syndrome. Dr. Stewart performed rotator-cuff surgery on appellee’s left shoulder on December 13, 2005.

Appellee returned for a post-operative evaluation on December 30, 2005. At that time, appellee reported elbow problems, although he acknowledged they had preexisted the surgery. He was given anti-inflammatory medication for arthritis in his elbow and directed to return in one month. Appellee returned in February and March with reports that he was doing well, and he was released to return to full-duty work with no restrictions on March 15, 2006. Appellee returned to work performing his regular duties.

On October 25, 2006, appellee sought additional medical treatment from Dr. Stewart with complaints of right-shoulder pain similar to the symptoms and problems he previously had with his left shoulder. He was referred for an MRI, which revealed a massive rotator-cuff tear with gleneral-humeral-arthritic change, AC joint arthritis, and impingement. On December 27, 2006, appellee underwent a right-shoulder hemiarthroplasty for rota-tor-cuff arthropathy.

Appellee returned for post-operative evaluations on January 10, 2007, and on February 14, 2007, and both times reported doing very well. Dr. Stewart assigned appellee a five-percent whole-person-impairment rating based on his loss of range-of-motion in the upper extremity. He was prescribed six additional weeks of physical therapy.

In his deposition and at the hearing before the ALJ, appellee testified that he had not returned to work. He drew six months of short-term disability from appellant-employer until 14June 2007. He testified that he retired in June of 2007, at the age of sixty-two, and began drawing retirement benefits from appellant-employer. He further testified that he had been notified that he was approved for Social Security disability benefits in August 2007.

Appellee testified that he did not seek medical treatment immediately because he thought his shoulders would get better. He testified that he did not report the injury as work related because he did not want to ruin his crew’s safety record and believed his claim would be denied due to his delay based on statements made to him by a co-worker.

On cross-examination, appellee admitted that he had gone deer hunting on November 12, 2005, and had shot a deer using his left shoulder. He admitted that he had sought medical treatment for other problems on four separate visits between August 2005 and November 2005 and did not mention a work-related accident or complaints of shoulder pain. He admitted that he continued to work and that he had told both his supervisor, Jerry Forrest, and the safety coordinator, Raymond Culp, that he did not need to see a doctor after the incident.

Three co-workers of appellee, Ricky Howard, Jimmy Barrett, and Jim Grice, testified that they were working with him and had witnessed the incident in 2005 involving the door to the kiln. Although their descriptions of the event differed in exact details of how far the door fell, their testimony consistently corroborated appel-lee’s testimony that he complained of pain in both shoulders immediately following the incident. They all testified that they |sencouraged appellee to report the injury and that they assisted him in performing his job duties and continued to urge him to seek treatment.

Appellee’s supervisor, Jerry Forrest, testified that he first observed appellee in pain sitting on a bucket and was told by appellee that the door fell and jerked his arm. He testified that he filled out an incident report based on the statements of appellee. He observed appellee continuing to have problems with his shoulders during the months after the incident. He explained that if appellee had reported problems with his right shoulder, he would have included the problems in the report. He testified that he asked appellee if he needed treatment on several occasions and that appellee denied the need for treatment. He testified that although he was told that appellee was having surgery on his right shoulder, he was not told that it was work related.

Mr. Culp, the safety coordinator, testified that he talked with appellee on the Monday following the incident. Appellee told him that he had jerked his left shoulder, but that when he asked appellee if he needed medical attention, appellee said “no.” He testified that he asked appellee if he needed medical attention for a week to ten days when he made daily rounds, and each time he was told by appellee that he did not want to see a doctor. Mr. Culp recalled that after ten days appellee had improved and was no longer complaining of his symptoms. Mr. Culp was subsequently made aware of appellee’s left-shoulder surgery when appellee’s name was on a list of people on short-term disability. Mr. Culp testified that he did not believe the surgery was work related since it was four months later and appellee did not | (¡report it as related to the accident. He first learned that appellee was contending that his need for treatment was work related when Mr.

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Cite This Page — Counsel Stack

Bluebook (online)
359 S.W.3d 426, 2009 Ark. App. 772, 2009 Ark. App. LEXIS 929, Counsel Stack Legal Research, https://law.counselstack.com/opinion/potlatch-corp-v-word-arkctapp-2009.