Vaccaro-Grobmeyer Co. v. McGarity

463 S.W.2d 372, 249 Ark. 1132, 1971 Ark. LEXIS 1438
CourtSupreme Court of Arkansas
DecidedFebruary 22, 1971
Docket5-5460
StatusPublished
Cited by3 cases

This text of 463 S.W.2d 372 (Vaccaro-Grobmeyer Co. v. McGarity) is published on Counsel Stack Legal Research, covering Supreme Court of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Vaccaro-Grobmeyer Co. v. McGarity, 463 S.W.2d 372, 249 Ark. 1132, 1971 Ark. LEXIS 1438 (Ark. 1971).

Opinions

J. Fred Jones, Justice.

This is a workmen’s compensation case in which the claimant-appellee, William A. McGarity, hereinafter called the claimant, was awarded 50% permanent partial disability to the body as a whole by the referee, and on review by the full Commission he was awarded 100% permanent disability. On appeal to the St. Francis County Circuit Court the award of the Commission was affirmed. On appeal to this court the employer, Vaccaro-Grobmeyer Co. and its workmen’s compensation insurance carrier, Casualty Reciprocal Exchange, contend that there is no substantial evidence to sustain the award and they state the point they rely on as follows:

“The award of One Hundred (100%) Per Cent permanent disability is not supported by any substantial medical evidence.”

On appeals from the decisions of the Workmen’s Compensation Commission, the trial court, as well as this court, only looks to the record for a determination of whether there is any substantial evidence to sustain the findings and award of the Commission and if there is, the Commission’s order is affirmed. This rule has been announced so often citation would only add volume without weight to this opinion. In examining the record for substantial evidence to support an award or denial of compensation for permanent partial disability in a workmen’s compensation case, the examination is directed to all the competent evidence and is not confined to the medical evidence alone. See Wilson & Co., Inc. v. Christman, 244 Ark. 132, 424 S. W. 2d 863. In the case at bar, however, we conclude that the award of the Commission was supported by substantial medical evidence.

The facts, as gathered from the record, are as follows: The claimant’s right arm was amputated near the shoulder in 1918 when he was 13 years of age. Following the amputation of his arm, the claimant had farmed until 1933 when he became engaged in house painting. He had lost no appreciable time from work as a house painter until his injury on July 23, 1965, when he attempted to move a refrigerator from against the wall of a room he was painting; his foot slipped on a drop cloth and he twisted and injured his back.

Following his injury, the claimant was seen by his family physician, Dr. George McPhail, in Forrest City. Dr. McPhail testified that he had known the claimant for about 20 years and had been his family physician during that time. He testified that following the injury he examined and x-rayed the claimant and diagnosed his condition as degenerative arthritis of the lumbar spine, along with disc disease. He hospitalized the claimant frorii July 24, 1965, to August 6, 1965, and again from September 14, 1965, to September 23, 1965, at which time claimant was discharged from the hospital free of muscle spasm and pain. He re-entered the hospital in Forrest City on two subsequent occasions and was last discharged from that hospital on January 20, 1966. On February 21, 1966, Dr. McPhail reported as follows:

“He was kept in the hospital from July 25 to August 6, 1965. The muscle spasm and pain gradually subsided and he was discharged home on August 6, 1965.
He was in the office for twenty-two (22) visits and was given out-patient treatments each time, between August 6 and September 14, 1965. He was re-admitted to Forrest Memorial Hospital on September 14, 1965, for more intensive treatment and was again discharged free of spasm and pain on September 23, 1965. Since that time he has been back in the hospital on two (2) occasions and I understand in the interim he has been hospitalized on two or more occasions in Little Rock.
In all sincerity and fairness to both the insured and the insuror, I feel that this man’s sprain would have healed permanently much sooner had he not had a previous existing back injury or disease. I do feel that he has been truthful in stating that he has severe back pain, as evidenced in every examination by a severe left lower dorsal and lumbar muscle spasm.”

On February 21, 1968, Dr. McPhail reported as follows:

“* * * I understand he has been in a Little Rock hospital on several occasions, because of this injury, having received surgical treatment on at least two occasions, by a Little Rock physician. I have treated him in my office on numerous occasions between each hospital stay, here and at Little Rock.
He is now wearing a back brace and a brace on his left foot. I feel he has now reached maximum benefits from any treatment, except from muscle re-laxan ts and analgesics, which he can secure on prescription and administer to himself at home. He is 75% totally and permanently disabled to do any form of manual labor.”

Dr. McPhail re-examined the claimant on November 21, 1968, and testified that the claimant’s condition was worse than when he last saw him and that it was his then opinion that the claimant was totally disabled. As to his final opinion, Dr. McPhail testified as follows:

“Q. you say that because of this back condition that he now has resulted from the injury and in your opinion he is a 100% disabled?
A. Absolutely — he will never work another day and the reason that I asked him to be excused from this Courtroom because I am the man’s doctor and I suppose that I will continue to treat him after this hearing. I think I know if he was here and heard it where this testimony was revealed to him he will become a bedridden invalid because our minds do play a big part in our ability or will to sort of get up and do for ourselves.-
Q. Doctor, with the type of back this man has as you said resulted from the injury, how does that affect him and prohibit him and keep him from painting — what keeps him from painting like he use to — he has still got his back back there? He has still got some bones and discs and nerves back there?
A. Mr. Sharpe, he is numb from his knee down and if he got on a ladder or any place to work he might just tumble off there and kill himself besides he must experience excruciating pain on any type walking even and bending would be out of the question. Gentleman, I don’t want to make my testimony too strong but I have seen a lot of backs but that is as bad one as I ever looked at and a man still be ambulatory.”

Dr. Richard M. Logue, an orthopedic specialist in Little Rock, examined the claimant on May 17, 1967, and reported, in part, as follows:

"From the history, physical examination, and review of the x-rays, it is apparent that this man has a severe involvement of his back by a traumatic arthritic process which, to some extent, is undoubtedly due to the alleged injury and the subsequent long involved treatment course to which he has failed to respond either to his or his treating doctor’s complete satisfaction. He has some residual findings in his left lower extremity and marked limitation of motion of his low back which indicates some persistent irritation of the nerve roots existing from the levels which are noted to be markedly narrowed in the x-rays.

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Cite This Page — Counsel Stack

Bluebook (online)
463 S.W.2d 372, 249 Ark. 1132, 1971 Ark. LEXIS 1438, Counsel Stack Legal Research, https://law.counselstack.com/opinion/vaccaro-grobmeyer-co-v-mcgarity-ark-1971.