Walker Logging v. Paschal

821 S.W.2d 786, 36 Ark. App. 247, 1992 Ark. App. LEXIS 5
CourtCourt of Appeals of Arkansas
DecidedJanuary 8, 1992
DocketCA 91-17
StatusPublished
Cited by14 cases

This text of 821 S.W.2d 786 (Walker Logging v. Paschal) 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
Walker Logging v. Paschal, 821 S.W.2d 786, 36 Ark. App. 247, 1992 Ark. App. LEXIS 5 (Ark. Ct. App. 1992).

Opinion

Melvin Mayfield, Judge.

The appellant Walker Logging appeals a decision of the Workers’ Compensation Commission which held that the claimant, John Paschal, is permanently and totally disabled and that the Second Injury Fund has no liability. We affirm.

At a hearing on Mr. Paschal’s claim for additional benefits it was stipulated that he sustained a work related injury on August 13, 1987; that temporary total disability benefits had been paid; and that permanent partial disability payments had been paid on a scheduled injury rating of 30% to the right lower extremity. The claimant contended he was totally and permanently disabled.

The appellant-employer contended that the claimant was not permanently totally disabled; that the Commission should take into account the claimant’s refusal to pursue vocational rehabilitation; and, if the claimant was adjudged permanently totally disabled, then any a.ward in excess of the 30 % scheduled injury was the liability of' the Second Injury Fund.

The Second Injury Fund contended that the claimant was not permanently totally disabled; that there had been no showing of a combination of injuries to invoke Fund exposure; and that the claimant suffered from a scheduled injury for which no further benefits were due.

The administrative law judge held that the claimant’s compensable injury had combined with his prior back condition to result in permanent, total disability; that the appellant was liable for all medical and related expenses and for permanent, partial disability of 30 % to the right lower extremity; and that the Second Injury Fund was liable for all excess permanent, total disability benefits. The Second Injury Fund appealed to the Commission which affirmed the law judge’s finding that the claimant was totally and permanently disabled but reversed the liability of the Second Injury Fund.

The claimant-appellee is a man in his late forties who left school at age 17 after being promoted to the eighth grade. He testified he cannot read or write; he has worked at many jobs during his lifetime, all of which involved heavy manual labor; and he was refused employment, or fired from, several jobs because of a back problem. The claimant said he was working for appellant as a timber cutter when he was injured on August 13,1987, when a tree fell on him and he suffered an injury to his right knee. Dr. Robert S. Bell, orthopedic surgeon, repaired the knee surgically and reported in a letter dated September 11, 1987, that the claimant was found to have a torn medial collateral ligament, torn anterior cruciate, torn posterior cruciate, torn lateral meniscus and torn patella tendon, as well as, torn lateral capsular ligament. The claimant testified that his knee swells when he is on it for more than a few minutes at a time; he walks with a cane; he sleeps poorly because his back and knee hurt; he has to have regular injections in the knee; he can do nothing to help around the house, cannot mow the lawn, change the oil in his truck or help with the gardening; and he had to purchase a van so he could keep his knee stretched out when he had to ride somewhere.

The record contains a number of letters from Dr. Bell reporting his findings in the months following the claimant’s knee reconstruction. They reflect that for several months the claimant appeared to be healing nicely. On January 25, 1988, Dr. Bell stated:

John is seen in follow-up of cruciate reconstruction. He now has 95 degrees of flexion. He is continuing to improve his strength. He has good stability at this time. I am going to plan to admit John to Union Medical Center for arthroscopy of his knee and removal of staples.

On May 9,1988, Dr. Bell reported that for the extent of his injury the claimant was doing remarkably well; he said the claimant could not, however, return to activities which required excessive walking and climbing on unlevel ground and he gave the claimant a permanent impairment rating of 20 % to the lower extremity. Approximately a month later Dr. Bell reexamined the claimant and repeated his x-rays. In a letter dated June 3,1988, he stated that the claimant was showing increased swelling in his knee and some early degenerative changes which he had not taken into account in the earlier rating. Dr. Bell said for that reason he felt he had under-rated the claimant and he increased his permanent impairment rating to 30% to the lower extremity.

Dr. W. S. Burdick, an orthopedic surgeon with The Bone & Joint Clinic in Shreveport, Louisiana, examined the claimant on November 8, 1988, on referral from Dr. Bell and reported:

Impression: Postoperative repair of severe ligamentous injury, right knee; traumatic chondromalacia, right knee, with a definite prognosis of traumatic osteoarthritis developing in the knee. I think that, from the stability standpoint, the patient had an excellent repair of the severe ligament injury, but I think the articular cartilage damage is going to prevent this patient from returning to his previous type of work, which was working in the woods and on uneven ground. I would not think that he could return to any work of this type or work that required repeated squatting, bending or walking any significant distance. I think the patient is going to have to be retrained for some other semi-sedentary or sedentary type of occupation.

The claimant testified that he has suffered from back problems since he was 12 years old. On March 6,1986, Dr. Ernest R. Hartmann, an orthopedic surgeon who performed a pre-employment physical on the claimant for Cooper Industrial, reported that he had a sacralized L5 disc. In a follow up letter Dr. Hartmann explained that “sacralization means that the normal, finger-like transverse process which sticks out from the side of the vertebra is deformed to the extent that it has configuration of the sacrum and will form abnormal joints which can become a source of a back problem.” He said this was a congenital abnormality that would not constitute a rateable, residual disability.

Appellant first argues on appeal that the Commission erred in holding that the claimant was permanently and totally disabled. When reviewing a decision of the Workers’ Compensation Commission, we must view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the findings of the Commission and affirm that decision if it is supported by substantial evidence. Clark v. Peabody Testing Service, 265 Ark. 489, 579 S.W.2d 360 (1979). The issue is not whether we might have reached a different result or whether the evidence would have supported a contrary finding; if reasonable minds could reach the Commission’s conclusion, we must affirm its decision. Bearden Lumber Company v. Bond, 7 Ark. App. 65, 644 S.W.2d 321 (1983). We think there is substantial evidence to support the Commission’s finding of total and permanent disability.

Appellant also argues that the claimant should be required to have a vocational rehabilitation analysis.

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Bluebook (online)
821 S.W.2d 786, 36 Ark. App. 247, 1992 Ark. App. LEXIS 5, Counsel Stack Legal Research, https://law.counselstack.com/opinion/walker-logging-v-paschal-arkctapp-1992.