Whitlatch v. Southland Land & Development

141 S.W.3d 916, 84 Ark. App. 399, 2004 Ark. App. LEXIS 61
CourtCourt of Appeals of Arkansas
DecidedJanuary 21, 2004
DocketCA 03-736
StatusPublished
Cited by23 cases

This text of 141 S.W.3d 916 (Whitlatch v. Southland Land & Development) 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
Whitlatch v. Southland Land & Development, 141 S.W.3d 916, 84 Ark. App. 399, 2004 Ark. App. LEXIS 61 (Ark. Ct. App. 2004).

Opinion

Terry Crabtree, Judge.

The Workers’ Compensation Commission affirmed and adopted the opinion of an Administrative Law Judge, who found that the appellant, Charles Whitiatch, failed to prove that he was permanently and totally disabled. The ALJ found that appellant was entitled to only 50% wage-loss disability benefits beyond the 9% anatomical rating assigned by appellant’s physician. On appeal, appellant claims that substantial evidence does not support the Commission’s decision; we agree. Therefore, we reverse and hold that appellant is entitled to permanent total disability benefits.

In reviewing decisions from the Workers’ Compensation Commission, the appellate court views the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission’s findings, and we affirm if the decision is supported by substantial evidence. Carman v. Haworth, Inc., 74 Ark. App. 55, 45 S.W.3d 408 (2001). Substantial evidence exists if reasonable minds could reach the same conclusion. Daniels v. Arkansas Dep’t Human Servs., 77 Ark. App. 99, 72 S.W.3d 128 (2002); Lee v. Dr. Pepper Bottling Co., 74 Ark. App. 43, 47 S.W.3d 263 (2001). When a claim is-denied because the claimant has failed to show an entitlement to compensation by a preponderance of the evidence, the substantial-evidence standard of review requires us to affirm if the Commission’s opinion displays a substantial basis for the denial of relief. Clardy v. Medi-Homes LTC Serv. LLC, 75 Ark. App. 156, 55 S.W.3d 791 (2001).

On February 2, 1998, appellant sustained a compensable injury to his low back when he was involved in a head-on motor vehicle accident while returning with supplies to his workplace, Southland Land & Development. At the time of appellant’s injury, Southland Land & Development, the appellee, had employed appellant for seven years as a maintenance man. Appellant described his job duties as requiring him to refurbish mobile homes when a tenant moved, maintain the grounds, and perform minor plumbing and electrical jobs. Prior to working for appellee, Coker Building employed appellant in construction work, and International Paper employed him as a forklift driver. Appellant described all of his past work experience as manual labor.

In an effort to overcome his injuries and return himself to work, appellant underwent numerous procedures, tests, and treatments over a four-year period. Appellant initially came under the care of Dr. Richard McCarthy, with the Arkansas Spine Center. On April 22, 1998, Dr. McCarthy conducted an evaluation of appellant, and based upon the severity of appellant’s injuries, the doctor reported:

He has been in a good state of health until February 2, 1998, at which point he was involved in a motor vehicle accident. . . Mr. Whitlatch wound up underneath his steering wheel with the steering wheel up against his chest. Since then the pain has gotten worse... The pain is felt in his back and hip on the left. His leg pain is significantly worse than the back pain. The primary pain has been felt around the anterior aspect of his left hip into the left testicle along the medial side of his left thigh and has now settled at it’s worst point pressed again the medial side of his left knee. There is some component of pain and numbness along the posterior aspect of the leg but this is much less than the thigh pain. There is some pain that extends along the medial side of the left calf as well. The pain is present throughout all of the day, and it is constant. He sleeps very poorly at night, often having to get up for pain relief... Walking or bending makes his pain worse. He really has a lot of difficulty even standing in one place. . . Although he desires going back to work, there is some question as to whether or not he will be able to go back to physical labor.

Dr. McCarthy performed surgery on appellant’s back in june of 1998. Dr. McCarthy found the nerve root to be, “quite taut” and it appeared to be “under pressure from beneath.” The postoperative diagnosis was, “herniated nucleus pulposus, L3-4, with extra tyrami-dal nerve root compression.” The surgery relieved some of appellant’s lower leg pain, but appellant’s lower back, hip, and upper back pain remained. As a result of appellant’s continuing pain, Dr. McCarthy ordered a follow-up MRI on August 27, 1998, which revealed significant scarring around the L3 nerve root. The report following the MRI states:

No significant disc bulge or herniating is identified. Enhancing epidermal scar is identified in the left L3-4 foramen and extends back posteriorly and laterally from prior surgery. This may partially surround the L3 root within the foramen.

By September 9, 1998, appellant reported “intolerable” pain, and Dr. McCarthy referred appellant to Dr. Carl Covey for pain management. At that time, Dr. McCarthy wrote in his progress note:

I will ask for him to be evaluated by the pain service and allow them to see what can be done for his problem. At this point he is unable to return to work, its too early to rate him and I would say that at this point he has a poor prognosis for being able to return to work. At this point, I don’t have much else to offer him to be able to help him with his problem.

Dr. Covey implanted, first a trial and then a permanent, spinal cord stimulator to alleviate appellant’s pain. Appellant testified that the stimulator made the pain bearable; however, it did not eliminate it. In addition, appellant was prescribed narcotic medication, OxyContin, twice daily and a Duragesic patch that he changes every forty-eight hours. In his medical reports, Dr. Covey indicated that the OxyCon-tin was prescribed for appellant’s “break through pain.”

By December of 2000, appellant reported increasing pain, complaints of his legs falling asleep, and loss of bladder control. Dr. Covey wrote in a progress note on December 8, 2000:

[Appellant] says that when he sits for a period of time or when he is sleeping many times at night, he legs will fall asleep so much that he can’t get up or stand and loses control of his bladder at that time. It is positional related. . . Assessment: patient with contractible back and left lower extremity pain, now with complaints of some numbness and incontinence, intermittent related to position, specifically sitting or laying for long periods of time. . .

Ultimately, appellant was referred for a functional capacity evaluation with Dr. Kevin Collins. On August 3, 2001, appellant underwent the testing, and the report confirmed that he was unable to complete many of the tests and exercises normally performed and that he was “crying” in pain while lifting only eight pounds. In spite of appellant’s “crying” pain, the report concluded that appellant “displayed the functional abilities of working in the sedentary category for an eight-hour day. Frequent position changes should be afforded as needed.”

Following the functional capacity evaluation, Dr.

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Bluebook (online)
141 S.W.3d 916, 84 Ark. App. 399, 2004 Ark. App. LEXIS 61, Counsel Stack Legal Research, https://law.counselstack.com/opinion/whitlatch-v-southland-land-development-arkctapp-2004.