Theresa Fretueg v. White River Orthopaedic Clinic

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

MARGARET MEADS, JUDGE

DIVISION II

THERESA FRETUEG

APPELLANT

V.

WHITE RIVER ORTHOPAEDIC CLINIC

APPELLEE

CA 00-224

SEPTEMBER 20, 2000

APPEAL FROM THE WORKERS' COMPENSATION COMMISSION

[NO. E117392]

AFFIRMED

Appellant, Theresa Fretueg, suffered a compensable injury to her left shoulder on April 21, 1986, while working as an x-ray technician for appellee. She was ultimately given a permanent anatomical impairment rating of twelve percent to the body as a whole, which appellee paid. However, appellee controverted appellant's contention that she was entitled to benefits for wage-loss disability in excess of her impairment rating. The administrative law judge (ALJ) found that appellant was entitled to a five-percent wage-loss disability in excess of her twelve-percent permanent anatomical impairment, for a total of seventeen percent to the body as a whole. The Commission affirmed. Appellant appeals, arguing that the Commission should have found her permanently and totally disabled under the odd-lot doctrine, and that there is no substantial evidence to support the Commission's finding of only a five-percent permanent wage-loss disability. We affirm.

On appeal, the evidence is viewed in the light most favorable to the findings of the Commission and is given its strongest probative value in favor of the Commission's decision. Barrett v. Arkansas Rehabilitation Servs., 10 Ark. App. 102, 661 S.W.2d 439 (1983). The question is not whether the appellate court might have reached a different conclusion from the one found by the Commission if it was reviewing the case de novo, or even whether the evidence would have supported a contrary finding. Tyson Foods, Inc. v. Disheroon, 26 Ark. App. 145, 761 S.W.2d 617 (1988). The Commission's decision should not be reversed unless it is clear that fair-minded persons could not have reached the same conclusions if presented with the same facts. Johnson v. Democrat Printing and Lithograph, 57 Ark. App. 274, 944 S.W.2d 138 (1997).

Beginning in 1981, appellant worked as an x-ray technician for appellee; she continued to work full-time in this position after the diagnosis of her injury. In March 1989, appellant was seen by Dr. J.R. Vander Schilden, an orthopaedic surgeon, who restricted appellant's normal work activities, particularly overhead and heavy lifting. Dr. Vander Schilden performed an anterior shoulder reconstruction on appellant's left shoulder in May 1989. Appellant returned to full-time employment after the surgery, with the restriction that she was to take x-rays for only part of the day. It was noted that appellant had a limited range of motion and occasional discomfort, but her prognosis for recovery was good. Dr. Vander Schilden opined that appellant reached maximum medical improvement on August 1, 1990, and he assigned her a twenty-percent permanent impairment to the left arm, whichconverted to a twelve-percent impairment to the body as a whole.

Dr. Vander Schilden's March 1, 1991, notes indicate that appellant's range of motion was extremely poor and that she was having night pain. Appellant was seen in Dr. Vander Schilden's office numerous times in 1991 for adhesive capsulitis secondary to her left shoulder reconstruction; she received steroid injections to alleviate her discomfort and to increase her range of motion on a temporary basis.

In February 1993, Dr. Vander Schilden again performed surgery on appellant's left shoulder. Following this surgery, appellant's pain was reduced but she had limited rotation of her shoulder, and she was unable to take x-rays because of weakness, pain, and loss of motion in her left shoulder. She continued to work at the same salary she received as an x-ray technician, until she was terminated in November 1994 due to a personality conflict with the office manager. Thereafter, she drew six months of unemployment benefits.

In November 1995, Dr. Vander Schilden opined that appellant was 100% disabled from taking x-rays on a permanent basis. An April 9, 1998, medical assessment of appellant's ability to do work-related activities indicates that she could lift up to five pounds occasionally and one to two pounds frequently; could balance frequently; could stoop, crouch, and kneel occasionally; but could not crawl or climb. Appellant's ability to stand, sit, and walk are not affected by her injury, but she has limitations for reaching, pushing, and pulling. Since 1995, appellant has worked as a fill-in nurse at a cardiology clinic; an air purifier salesperson; a church youth director; a substitute teacher and volunteer coordinator. She is currently a "para-teacher" in the Mountain Home School District. Additionally, appellant assists her husband with errands and paperwork required in his plumbing business, and she has applied for a secretarial job with the school district.

Appellant contends that she is permanently and totally disabled under the odd-lot doctrine. Although this doctrine was abolished by section 24 of Act 796 of 1993, it applies when the injury in question occurred prior to July 1, 1993, as did appellant's injury. In Lewis v. Camelot Hotel, 35 Ark. App. 212, 816 S.W.2d 632 (1991), this court discussed the applicability of the odd-lot doctrine in workers' compensation cases:

The "odd-lot doctrine" refers to employees who are able to work only a small amount. The fact that they can work some does not preclude them from being considered totally disabled if their overall job prospects are negligible. M.. M. Cohn Co. v. Haile, 267 Ark. 734, 589 S.W.2d 600 (1979). In reference to the odd-lot doctrine, we have recognized that "total disability" does not require a finding that the employee is utterly helpless, and an employee who is injured to the extent that he can perform services that are so limited in quality, dependability, or quantity that a reasonably stable market for them does not exist may be classified as totally disabled. Hyman v. Farmland Feed Mill, 24 Ark. App. 63, 748 S.W.2d 151 (1988). We have also observed:

If the evidence of degree of obvious physical impairment, coupled with other facts such as the claimant's mental capacity, education, training, or age, places claimant prima facie in the odd-lot category, the burden should be on the employer to show that some kind of suitable work is regularly and continuously available to the claimant.

Johnson v. Research-Cottrell, 15 Ark. App. 48, 50, 689 S.W.2d 8, 9 (1985) (quoting A. Larson, Workmen's Compensation Law 57.61 (1983)).

35 Ark. App. at 215, 816 S.W.2d at 634.

In support of her argument, appellant cites Buford v. Standard Gravel Co., 68 Ark.App. 162, 5 S.W.3d 478 (1999). In that case, we reversed and remanded the Commission's decision that the appellant failed to show that he was permanently and totally disabled under the odd-lot doctrine. Appellant asserts that the Buford case is similar to her situation. We disagree. In Buford, the appellant had suffered four serious work-related injuries - a crushed larynx and three consecutive lower-back injuries that required surgical intervention. Although Buford was only forty years old and had a high school education, his employment history consisted only of heavy labor, and his functional equivalency test indicated that he possessed poor math and writing skills. Moreover, he was unable to sit, stand, sleep, drive, or walk for more than a few minutes at a time, and he was not capable of working an eight-hour day.

Unlike the situation in Buford, appellant can work an eight-hour day, and she is not restricted in standing, walking, or sitting. She continued to work full-time at appellee's office for eight years after her injury. Although appellant's training is as an x-ray technician, she has demonstrated through her subsequent employment the ability to learn new tasks, such as filing insurance claims and doing secretarial work. Her medical limitations are not so restrictive as to render her services "so limited in quality, dependability, or quantity that a reasonably stable market for them" was not available. Lewis, supra. Therefore, we believe there is substantial evidence to support the Commission's finding that appellant failed to make a prima facie case that she is permanently and totally disabled under the odd-lot doctrine, and that she suffered only a five-percent wage-loss disability over and above her permanent anatomical impairment rating of twelve percent.

Appellant also argues that she is permanently and totally disabled under Ark. Code Ann. § 11-9-519(b) (Repl. 1996), which provides, "In the absence of clear and convincing evidence to the contrary, the loss of both hands, both arms, both legs, both eyes, or of any two (2) thereof shall constitute permanent total disability." However, the abstract does not indicate that appellant raised this issue to the Commission, and we do not address issues raised for the first time on appeal. Harding v. City of Texarkana, 62 Ark. App. 137, 970 S.W.2d 303 (1998).

Affirmed.

Robbins, C.J., and Crabtree, J., agree.