Wal-Mart Stores, Inc. v. Westbrook

72 S.W.3d 889, 77 Ark. App. 167
CourtCourt of Appeals of Arkansas
DecidedApril 17, 2002
DocketCA 01-1282
StatusPublished
Cited by11 cases

This text of 72 S.W.3d 889 (Wal-Mart Stores, Inc. v. Westbrook) 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
Wal-Mart Stores, Inc. v. Westbrook, 72 S.W.3d 889, 77 Ark. App. 167 (Ark. Ct. App. 2002).

Opinion

Josephine Linker Hart, Judge.

Appellants appeal from an order of the Arkansas Workers’ Compensation Commission granting appellee temporary total disability benefits and permanent partial disability benefits. Appellants argue that there was not substantial evidence to establish that appellee (i) suffered a right shoulder injury arising out of and in the course of his employment; (ii) was entitled to temporary total disability benefits; and (iii) was entitled to permanent partial disability benefits associated with a 3% permanent impairment rating. We affirm.

On September 3, 1999, appellee, as an employee of appellant Wal-Mart, was restacking pallets of bicycles when a pallet fell, hitting appellee’s right shoulder and pinning him against another pallet. Appellee testified that he suffered extreme pain, but after being pulled out from underneath the bicycles, he worked for most of the day. The next day, his shoulder was sore, but he continued to work. He testified that following the accident he notified his supervisor.

Appellee further testified that he continued to work from September 1999, until he was excused from work, according to medical records, on February 7, 2000. Appellee stated that, following the accident, his pain worsened, and he suffered numbness in the mornings and could not lift his arm, and in January 2000, he went to see a company physician about his shoulder. The doctor referred him to another physician, Jay M. Lipke. Dr. Lipke performed surgery on appellee, according to medical records, on February 14, 2000, and released him to return to work for limited or light duty on April 24, 2000. Appellee acknowledged that, after the September accident, he continued to work and receive a salary from his other job as a minister, even though from February to April the associate pastors performed the “major parts” of his job. He also testified that the only previous injury to his right shoulder was a fall on ice that occurred seventeen or eighteen years earlier, and he had never had any pain or soreness in his right shoulder prior to September 3, 1999.

According to a letter dated January 25, 2000, Dr. Lipke noted that appellee had “a large cyst over the right AC joint and pain with forward elevation and abduction to 90 degrees,” with x-rays showing “some degenerative changes of the right AC joint and no other abnormalities.” The doctor aspirated the cyst and opined that “his symptoms are related to AC osteoarthritis” and possibly could have “underlying rotator cuff pathology.” An MR.I was performed on February 3, 2000, which revealed (i) a “[l]arge chronic full thickness tear of the rotator cuff. . . with atrophy of all muscles involving the rotator cuff”; (ii) a “[sjuperior subluxation of the humeral head such that it abuts the undersurface of the acromion”; and (iii) a “[hjypertropic changes of the AC joint with a[n] associated ganglion cyst superior to the AC joint.”

Dr. Lipke, in his notes of February 7, 2000, stated that appel-lee’s “MR.I reveals evidence of a large chronic rotator cuff tear with proximal migration of the humeral head,” as well as a cyst “that emanates from the AC joint.” The doctor opined that appellee “would benefit from surgical intervention” as an attempt to “restore rotator cuff function if at all possible.” He also indicated that during the surgery he would “excise the cyst” and “resect the distal clavicle.” Surgery was performed on February 14, 2000, and in the postoperative report, Dr. Lipke noted that appellee had a “chronic irreparable rotator cuff tear” and “acromi-oclavicular osteoarthritis with synovial cyst.”

Dr. Lipke subsequently determined that, within a reasonable degree of medical certainty, appellee had “60% [permanent partial impairment] to the upper extremity” with “30% [to the] body as a whole,” that the impairment was based on objective data, but that the work injury was not the “major cause” of appellee’s impairment. In a letter to appellee dated April 20, 2000, Dr. Lipke stated, “I don’t feel the work-related injury is the major cause of your impairment.” He concluded that “[bjased on the size and chronicity (long standing nature) of the tear, I think this is something that happened prior to the work[-]related injury.”

On May 12, 2000, in response to a letter from appellants’ attorney, Dr. Lipke stated that “[t]he 30% rating to the body as a whole is based on a 50% impairment to the right upper extremity as a whole.” 1 He further concluded that “[t]he 50% impairment to the extremity as a whole is based on loss of strength and motion due to the chronic rotator cuff tear.” On June 6, 2000, in response to a letter from appellee’s attorney, Dr. Lipke stated that appellee’s problems began with the work-related injury and that this injury “aggravated a pre-existing problem with the right shoulder (chronic rotator cuff tear).” Dr. Lipke further stated that, prior to the surgery, he felt that the work-related injury was the entire cause of appellee’s shoulder problems. He noted, however, that at the time of the surgery, appellee had a chronic rotator cuff tear that predated the work-related injury. He further stated:

I feel the work[-] related injury was an aggravating factor, or the straw that broke the camel’s back and this has added to his underlying shoulder problem. With this in mind, I would say the work[-] related injury added 5% impairment to his shoulder. In other words, 45% of his impairment would be related to the preexisting injury and 5% could be assigned to the work [-[related injury.

On August 21, 2000, in response to a letter from appellants’ attorney, Dr. Lipke stated that of the 50% impairment, 10% was caused by the work-related injury and 90% by the pre-existing condition.

On appeal to the Commission from the administrative law judge’s award of benefits to appellee, the Commission concluded that appellee established by a preponderance of the evidence that his “right shoulder difficulties were aggravated by, and thus causally related to, his employment.” The Commission further concluded that because Dr. Lipke opined that the compensable injury accounted for 10% of appellee’s total impairment, “the compensa-ble injury is the major cause of 3% of claimant’s total permanent impairment to the body as a whole,” and consequently, the Commission awarded permanent partial disability benefits on that basis. The concurring opinion noted that a 5% impairment to the right upper extremity is equivalent to a 3% impairment to the body as a whole. The Commission also awarded temporary total disability benefits from February 7, 2000, when Dr. Lipke excused appellee from work, to April 24, 2000, when the doctor released appellee to return to work. The Commission concluded that appellee’s employment as a minister during that time period did not preclude the award of temporary total disability benefits.

On appeal, appellants first argue that the Commission erred in concluding that appellee suffered a right shoulder injury arising out of and in the course of his employment. Primarily, they argue that appellee failed to establish a causal relationship between his employment and his injury.

A “compensable injury” is one “arising out of and in the course of employment.” Ark. Code Ann. § 11-9-102(4) (A) (i) (Repl. 2002).

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Bluebook (online)
72 S.W.3d 889, 77 Ark. App. 167, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wal-mart-stores-inc-v-westbrook-arkctapp-2002.