Vite v. Vite

377 S.W.3d 453, 2010 Ark. App. 565, 2010 Ark. App. LEXIS 597
CourtCourt of Appeals of Arkansas
DecidedSeptember 1, 2010
DocketNo. CA 09-1375
StatusPublished
Cited by5 cases

This text of 377 S.W.3d 453 (Vite v. Vite) 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
Vite v. Vite, 377 S.W.3d 453, 2010 Ark. App. 565, 2010 Ark. App. LEXIS 597 (Ark. Ct. App. 2010).

Opinion

RITA W. GRUBER, Judge.

| Appellant employee Gilberto Vite (Mr. Vite), a self-employed carpet layer for appellee employer Gilberto Vite, a sole-proprietorship, suffered a compensable back injury in November 2007 when he was struck by a large roll of carpet being unloaded from the back of a truck. He appeals the Arkansas Workers’ Compensation Commission November 9, 2009 decision denying his claim for permanent disability and additional medical benefits. He contends 1) that the Commission incorrectly calculated his average weekly pay, and 2) that substantial evidence does not support the Commission’s denial of permanent disability benefits and additional medical treatment. We affirm.

At a February 18, 2009 hearing, the administrative law judge accepted the parties’ stipulations that Mr. Vite had reached maximum medical improvement and his healing period Rhad ended on April 30, 2008, as reported by his treating physician; and that the treating physician, Dr. Rodney Routsong, had assigned a ten-percent anatomical rating to the body as a whole. Mr. Vite contended that as a result of his compensable injury he was permanently and totally disabled, based upon the ten-percent rating and a loss in wage-earning capacity; that he was entitled to additional medical treatment, including treatment from Dr. Routsong; and that wages should be calculated upon gross earnings without consideration of business deductions, resulting in the maximum compensation rate allowed by workers’ compensation. Appel-lees contested these issues, controverted the ten-percent impairment rating, and requested credit for any benefits paid in excess of the correct compensation rate.1

The law judge found that Mr. Vite failed to prove entitlement to permanent disability benefits or to additional medical treatment from Dr. Routsong as being reasonable and necessary; that Mr. Vite’s average weekly wage was $587.30; that compensation for total disability benefits and permanent partial disability benefits would be based upon this weekly wage; and that appellees were entitled to a credit for any benefits paid in excess of this rate. The Commission affirmed and adopted the law judge’s decision.

Mr. Vite, fifty-four years old at the time of the hearing, worked in northwest Arkansas for the fourteen years preceding his injury and had lived in the United States for thirty years. |sHis testimony was presented through a Spanish/English interpreter.2 Other evidence included Mr. Vite’s medical records; a functional capacity evaluation of Mr. Vite, performed on March 20, 2008; testimony by Tanya Owen, a rehabilitation expert, and the vocational evaluation she performed on November 4, 2008; an independent medical evaluation by Dr. Earl Peeples, an orthopedic surgeon, on October 16, 2008; and Mr. Vite’s recent tax returns.

Mr. Vite testified that his middle back was injured on November 19, 2007, when he and another employee were handling a carpet roll that weighed at least 350 pounds. He said that he was carrying the roll on his shoulder; it began to fall; the other employee pushed it; and it hit Mr. Yite’s back, causing him to trip, fall, and lose consciousness. He said that the pain caused by this injury had rendered him unable to do any carpet laying since the accident. He described his symptoms on the hearing date as pain radiating into both legs and shoulders, pain and numbness in his knees, and his lower back hurting when he walked, making him unable to walk without limping or favoring one side. He testified that he occasionally went gambling and that after his injury had gone with his wife to a nearby city, where he stood and sat at slot machines. He said pain sometimes precluded him from driving, but he could fill out paperwork without pain, could handle items with his hands, and was “okay” with normal activities such as stretching his arms out. He said he was unaware that his functional capacity evaluation produced unreliable results or that Dr. Routsong noted he walked normally on June 5, 2008.

14Tanya Owen testified that a wide-range achievement test and Raven Progressive Matrices she administered to Mr. Vite showed that he had no computer skills; was not literate in English; had a third-grade level in reading, kindergarten level in spelling, and fifth-grade level in arithmetic; and was poorly equipped for retraining. She said Mr. Vite would be unlikely to get and keep work because of his age; his lack of fluency in English, work skills outside construction, or computer skills; and his limited ability to learn computer skills. She testified that he would have to sit as needed; there were few sedentary, unskilled jobs to begin with; and there were no jobs in the area that he could do.

.Ms. Owen stated that she reached her conclusion “irresponsive [sic] of the functional capacity exam” but that it was consistent with what Mr. Vite told her in his two-to-three-hour interview, including a discussion of his physical symptoms; his functional capacity exam, which limited him to sedentary work; and the opinion of Dr. Routsong, his treating physician and an osteopathic doctor, who limited his lifting to five pounds. Ms. Owen said she would assign greater weight to a treating physician’s opinion than a one-time opinion by a different doctor, and she said she had not had access to the independent medical exam. She noted that the examiner administering the functional capacity evaluation exam concluded that Mr. Vite was capable of sedentary-level work after observing a lack of consistent effort and “numerous indicators of self-limiting effort.” Reiterating that Dr. Routsong had restricted lifting to five pounds, she stated that sedentary-level work required lifting up to ten pounds and that carpet laying is classified as heavy-level work with a requirement of occasionally lifting a hundred | ¡^pounds. Acknowledging the examiner’s statement that Mr. Vite’s “true functional limitations” were unknown due to his demonstrated inconsistencies, she said that, because the examiner was more qualified than she to make the statement, she would defer to him if that was his opinion.

Dr. Routsong’s reports included his assessment of Mr. Vite for complaints of back pain on November 26, 2007, a week after he suffered his compensable injury. Dr. Routsong noted that x-ray reports demonstrated minimal anterior compression fractures from T12 through L3. He ordered thoracic and lumbar MRIs, which were performed on December 6, 2007. Among the impressions stated on the report of the lumbar MRI were mild desiccation of L4-5 and L3-4 disc spaces, with minimal disc bulging; no focal disc protrusion, extruded disc fragment, central canal stenosis, or neural exit foraminal stenosis; moderate degenerative facet ar-thropathy at all levels; and no pathologic marrow signal intensity arising from vertebral bodies that would suggest healing trauma. Similarly, the thoracic MRI revealed no pathologic marrow signal intensity to suggest marrow infiltrative process or healing trauma, and it revealed normal alignment with no cord compression, enlargement, syrinx, or pathologic signal intensity suggesting neoplasm or myeloma. Dr. Routsong’s treatment of Mr. Vite from December 2007 through April 2008 included prescriptions for medications and physical therapy. At a final office visit on June 5, 2008, Dr. Routsong referred Mr. Vite to a Dr. Tejeda for ongoing pain management of his spine, shoulders, elbows, and knees.

| ,⅜Average Weekly Wage

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Bluebook (online)
377 S.W.3d 453, 2010 Ark. App. 565, 2010 Ark. App. LEXIS 597, Counsel Stack Legal Research, https://law.counselstack.com/opinion/vite-v-vite-arkctapp-2010.