Tom Williams v. Williamette Industries

ca04-974

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION IV

CA04-974

March 16, 2005

TOM WILLIAMS AN APPEAL FROM ARKANSAS

APPELLANT WORKERS' COMPENSATION

COMMISSION [E700242]

V.

WILLAMETTE INDUSTRIES

APPELLEE REVERSED AND REMANDED

Wendell L. Griffen, Judge

The issue in this case is whether appellant is entitled to permanent-disability benefits for muscle loss in his abdominal wall following surgery to treat a compensable leg injury. The Workers' Compensation Commission (Commission) determined that appellant failed to prove entitlement to compensation for impairment to the body as a whole or entitlement to wage-loss disability. We reverse and remand for an award of permanent-partial disability benefits based on appellant's abdominal condition, for the Commission to determine appellant's impairment rating to the body as a whole, and for a determination of his wage-loss disability.

On January 5, 1997, while working as a forklift driver for appellee Willamette Industries, appellant sustained admittedly compensable injuries when his right foot, ankle, and lower leg were crushed by a forklift. While recovering from these injuries, appellant fell and suffered a compound fracture to his left leg. Appellee also accepted the left-leg injury as a compensable consequence of the right-leg injury.

Dr. Robert Olive, an orthopedic surgeon, performed multiple surgeries on appellant's left leg. However, appellant's left leg developed bone infection near the fracture sites. Appellant sought a second opinion and came under the care of Dr. James Lillich. In an attempt to control the infections in appellant's left leg, Dr. Lillich and Dr. Paul Davis performed a rectus abdominus free-flap graft (graft procedure) that involved removing a fist-sized mass of muscle tissue from appellant's right lower abdomen and left upper leg and grafting it onto his lower left leg. The procedure was performed to establish better blood flow to the infected areas. The discharge report following this procedure stated that "[p]ostoperatively he has done relatively well except for a need for return to the OR to check the vascularity of the flap and possible internal bleeding around the graft harvest site." The report further indicated "patient will need to remain nonweight-bearing on this left side." Unfortunately, the procedure was unsuccessful; Dr. Lillich eventually amputated appellant's left leg below the knee. Appellant was thereafter fitted with a prosthesis on his left leg.

Appellant testified that the doctors removed approximately eight inches of abdominal tissue and supporting abdominal structures. He further described the tissue mass as "fist-sized." Appellant testified that he experiences problems due to the abdominal surgery. He stated that "when I lift this muscle is gone, and when I lift something that's very heavy, it shifts all the load over to this side, my left side, and it causes me to where [sic] I can't lift a whole lot." He further indicated that he does not attempt to lift more than forty pounds "very often." When asked if he experienced pain in that area (meaning the side from which the tissue was removed), he replied: "Yes, it loads up the other side. That's why I think I had a hernia. I've still got the problem today but they said they couldn't find nothing, but it's still there."

On May 17, 2000, Dr. Lillich assigned a permanent impairment rating for appellant's injuries to his lower extremities, his abdominal condition, and to the body as a whole. Specifically, he assigned an impairment rating of 8% to the body as a whole due to the "palpable defect in the supporting structures of the right lower abdominal wall." Appellee paid benefits for the impairment ratings assigned for appellant's lower extremities, but refused to pay benefits for that portion of his impairment rating relating to appellant's abdominal condition.

Appellant reached maximum medical improvement in December 1999 and returned to work for appellee, again driving a forklift. He was subsequently fired for allegedly stealing a saw belonging to a subcontractor working on appellee's premises.1 At the time of the hearing, he was fifty-two years old and was employed by a hospital as a maintenance technician, working sixteen hours per week and earning $10.84 per hour. Appellant also receives $857 monthly in disability benefits.

The Commission found that appellant failed to prove entitlement to an impairment to the body as a whole and, as a result, that he was not entitled to receive wage-loss disability benefits. The Commission further found that the record was "silent" with regard to the "palpable defect in the supporting structures of the abdominal wall" noted by Dr. Lillich in his May 17 report. The Commission noted that the operative report from the graft procedure was not introduced into evidence and that none of the medical records addressed the amount of abdominal tissue harvested or the care and treatment of the abdominal wound. Thus, the Commission concluded that appellant failed to present evidence of an abdominal hernia because he presented no evidence that he experienced any protrusion or discomfort at the site of the tissue graft or resulting from the removal of the abdominal tissue. Further, it noted that diagnostic testing failed to support any evidence of a hernia, and it concluded that Dr. Lillich's May 17 report merely mimicked the language from the AMA guides for hernia-related impairment.2

The Commission determined that the AMA guides governing permanent impairment ratings do not provide for an impairment rating for an abdominal defect absent a finding of a hernia. Thus, it concluded that appellant failed to prove entitlement to an impairment rating to the body as a whole, as a result of the graft procedure.3 Because the percentage of permanent physical impairment to the body as a whole must be established before a claimant may receive permanent-partial disability benefits in excess of his percentage of permanent physical impairment, and because the Commission found that appellant failed to establish an impairment to the body as a whole, it also determined that appellant was not entitled to receive any wage-loss disability benefits.

In reviewing decisions from the Workers' Compensation Commission, we view 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. Whitlach v. Southland Land & Dev., 84 Ark. App. 399, 141 S.W.3d 916 (2004). Substantial evidence exists if reasonable minds could reach the same conclusion. Id. 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. Id.

We agree that appellant did not suffer a hernia. However, we reverse because the Commission erred in finding appellant did not prove entitlement to an impairment of the body as a whole related to his abdominal condition. Therefore, we remand for an award of permanent-partial disability benefits and for a determination of appellant's wage-loss disability. A claimant who receives a scheduled injury may receive permanent-partial disability benefits in the amount of the permanent-partial disability rate attributable to the injury, as specified in Ark. Code Ann. § 11-9-521 (Repl. 2002). By contrast, a permanent-partial disability not scheduled in § 11-9-521 shall be apportioned to the body as a whole, meaning that the claimant shall be paid compensation for the proportionate loss of use of the body as a whole relating from the injury. Ark. Code Ann. § 11-9-522(a)(Repl. 2002).

In addition, if an injury is compensable, every natural consequence of that injury is also compensable; the basic test is whether there is a causal connection between the two episodes. Air Compressor Equip. v. Sword, 69 Ark. App. 162, 11 S.W.3d 1 (2000). Thus, the question in this case is not whether appellant suffered a hernia, but whether the defect in appellant's abdomen is a natural consequence of a compensable injury. We hold that it is.

Simply stated, because appellant did not suffer a hernia does not mean that he did not suffer a compensable injury. It is beyond question that the tissue removed from appellant's abdomen was part of the graft procedure and that procedure was related to his compensable injuries. There is no dispute that appellant's left leg injuries were a compensable result of appellant's compensable right leg injuries. Nor is it disputed that the graft procedure was a compensable treatment resulting from Dr. Lillich's attempt to treat appellant's compensable left leg injuries.

Furthermore, there is uncontradicted proof in the record that appellant has a palpable defect in the supporting structures of his abdominal wall resulting from the loss of the supporting muscle removed during the graft procedure. This is established by appellant's testimony concerning the graft procedure and by the medical evidence concerning the graft procedure. In addition, appellant testified that his ability to lift objects weighing over forty pounds is limited due to the procedure and that he has to shift the weight he bears to his left side to compensate for the loss of supportive muscle on his right side. Simply put, the record clearly and indisputably shows that appellant sustained an abdominal defect due to treatment obtained for his compensable injuries.

It is true that the Commission was not required to rely on Dr. Lillich's impairment rating because it may assess its own impairment rating rather than rely solely on the ratings assigned by physicians. Avaya v. Bryant, 82 Ark. App. 273, 105 S.W.3d 811 (2003). It is also true that Dr. Lillich's description of appellant's impairment would be insufficient to support a finding of a hernia under the AMA impairment ratings for hernias.

However, the Commission erred in disregarding the evidence, including Dr. Lillich's report, that appellant suffered an 8% impairment to the body as a whole based on the defect in his abdominal wall. The Commission may not arbitrarily disregard evidence in support of a claim. Freeman v. Con-Agra Frozen Foods, 344 Ark. 296, 40 S.W.3d 760 (2001). Dr. Lillich was one of two doctors who performed the abdominal surgery and who personally witnessed the condition of appellant's abdomen during the surgery. He also provided follow-up treatment after the surgery. Moreover, although Dr. Lillich used language from the AMA guidelines, he never opined that appellant had a hernia or that his impairment was based on a hernia. He simply opined that appellant's impairment rating to the body as a whole, attributed to his abdomen, was 8%, "based on the palpable defect in the supporting structures of the abdominal wall." The record amply supports this conclusion and does not provide any basis for the Commission to disregard Dr. Lillich's opinion concerning the permanency of appellant's abdominal condition, let alone the likely impact of that condition on appellant's ability to work.

Therefore, we hold that reasonable minds could not have concluded, as the Commission did, that appellant failed to prove that the graft procedure resulted from a compensable injury. Accordingly, we reverse and remand on this point. Finally, because the Commission erroneously determined that appellant suffered no impairment to the body as a whole, it also determined that appellant was not entitled to wage-loss disability benefits. However, in light of our holding that appellant was entitled to an impairment rating to the body as a whole because of the abdominal defect, we also reverse on this point and remand for the Commission to determine appellant's entitlement to wage-loss benefits.

Reversed and remanded.

Gladwin and Baker, JJ., agree.

1 Appellant explained at the hearing before the Administrative Law Judge that he found the saw on the ground near the end of his shift. Believing the saw to have been abandoned, and after witnessing another forklift driver nearly run over the saw, appellant placed it in a common locker. Approximately five minutes later, he learned from another worker that the subcontractor was looking for a saw and thought that someone had taken it. Appellant retrieved the saw and took it to the other employee, who returned the saw to its owner. Appellant was thereafter terminated. He subsequently brought suit against appellee under the Americans with Disabilities Act, alleging that he was fired in retaliation for requesting an accommodation for an air-conditioned forklift cab under the Act. The parties settled this dispute out of court.

2 The word "hernia," for workers' compensation purposes, has been defined by the Arkansas Supreme Court to generally mean an abdominal rupture. Bottoms Baptist Orphanage v. Johnson, 240 Ark. 175, 398 S.W.2d 544 (1966).

3 The Commission also found that appellant failed to prove entitlement to permanent-partial disability benefits to the body as a whole based on his lower-extremity injuries and, therefore, that appellant was only entitled to permanent-partial disability benefits in accordance with the schedule for the lower extremity injury. Appellant does not appeal from this finding.