Federal Compress & Warehouse Co. v. Risper

FEDERAL COMPRESS & WAREHOUSE CO. v. Johnny
RISPER

CA 96-78                                           ___ S.W.2d ___

                  Court of Appeals of Arkansas
                          Division III
               Opinion delivered December 18, 1996


1.   Workers' compensation -- scheduled injuries -- partial
     permanent impairment to eyes come within this category. -- The
     test of whether or not an injury falls within the scheduled
     injury category is primarily a question of law; partial
     permanent impairments to the eyes come within the scheduled
     injury category as set out above in Ark. Code Ann.  11-9-
     521(f), and claimants are limited to the scheduled benefits;
     a claimant who sustains a scheduled injury is limited to the
     applicable allowances set forth in Ark. Code Ann.  11-9-521,
     and such benefits cannot be increased by considering wage-loss
     factors absent a finding of permanent total disability.

2.   Workers' compensation -- Commission may have improperly
     considered appellee's eye injury when determining amount of
     wage-loss benefits -- Commission's opinion reversed and
     remanded. -- Where it appeared from the Commission's opinion
     that it may have considered the appellee's eye injury when
     determining the amount of wage-loss benefits to which appellee
     was entitled, yet the appellee's eye injury was scheduled, and
     that injury could not and should not have been considered when
     determining appellee's wage-loss benefits, the appellate court
     reversed the Commission's opinion and remanded for the
     Commission to determine the extent of wage-loss benefits to
     which appellee may be entitled without giving consideration to
     his scheduled eye injury or his non-compensable lumbar injury,
     which may also have been considered to some extent.


     Appeal from the Arkansas Workers' Compensation Commission;
reversed and remanded.
     Walter A. Murray, for appellant.
     Paul J. Teufal, for appellee.
     
     John B. Robbins, Judge.
     Appellant Federal Compress & Warehouse Company appeals from a
decision of the Workers' Compensation Commission which held that
appellee Johnny Risper was entitled to a ten percent permanent
impairment rating to his right eye and twenty percent wage-loss
disability benefits to the body as a whole.  Appellant contends
on appeal that the Commission's opinion is not supported by
substantial evidence, specifically arguing that the Commission
erred as a matter of law in considering wage-loss disability as it
related to appellee's scheduled eye injury.
     The evidence indicated that on November 26, 1990, appellee
sustained an admittedly compensable injury when he was hit from
behind by a cotton bale and became trapped between two bales. 
Appellee sustained fractures in his neck and suffered an orbital
blowout to his right eye.  He underwent two surgical procedures to
repair his right eye and the surrounding bone.  Several eye
specialists who treated appellee opined that he had tenderness to
the orbital rim; depressed vision fields; enophthalmus (the eye
sits back in the socket); diplopia (double vision); esotropia (eye
turns inward); and ptosis (drooping of the upper eyelid).
     Appellee's eye injury and the resulting impairment falls under
the scheduled permanent injury category as set forth in Ark. Code
Ann.  11-9-521 (Repl. 1996).  That section provides in part:
       (a)  An employee who sustains a permanent compensable
     injury scheduled in this section shall receive, in
     addition to compensation for temporary total and
     temporary partial benefits during the healing period or
     until the employee returns to work, whichever occurs
     first, weekly benefits in the amount of the permanent
     partial disability rate attributable to the injury, for
     that period of time set out in the following schedule[.]
                             . . . .
       (14) Eye enucleated, in which there was useful vision,
     one hundred five (105) weeks;
                             . . . .
       (f)  Compensation for permanent partial loss or loss of
     use of a member shall be for the proportionate loss or
     loss of use of the member.
     The test of whether or not an injury falls within the
scheduled injury category is primarily a question of law.  See
Taylor v. Pfeiffer PLBG & HTG Co., 8 Ark. App. 144, 648 S.W.2d 526
(1983).  We have held that partial permanent impairments to the
eyes come within the scheduled injury category as set out above in
Ark. Code Ann.  11-9-521(f), and that claimants are limited to the
scheduled benefits.  E.g., Hampton & Crain v. Black, 34 Ark. App.
77, 806 S.W.2d 21 (1991); Emerson Elec. Co. v. Powers, 268 Ark.
920, 597 S.W.2d 111 (Ark. App. 1980).  Our prior cases have been
very clear in holding that a claimant who sustains a scheduled
injury is limited to the applicable allowances set forth in Ark.
Code Ann.  11-9-521, and such benefits cannot be increased by
considering wage-loss factors absent a finding of permanent total
disability.  Anchor Const. Co. v. Rice, 252 Ark. 460, 479 S.W.2d 573 (1972); Taylor v. Pfeiffer PLBG & HTG Co., supra; Haygood v.
Belcher, 5 Ark. App. 127, 633 S.W.2d 391 (1982).
     The Commission in this case held that the appellee was
entitled to benefits for a permanent anatomical impairment of ten
percent to the right eye and awarded him wage-loss disability
benefits of twenty percent to the body as a whole.  When discussing
wage-loss the Commission stated:
     [w]e find that claimant has proven by a preponderance of
     the evidence that he is entitled to benefits for wage
     loss disability.
          At the time of the most recent hearing, claimant was
     50 years old.  He has a third grade education and his job
     duties included operating equipment such as forklift or
     simply pulling levers for a cotton compress; painting;
     stacking lumber; loading and unloading trucks and
     boxcars; and general maintenance and other housekeeping
     chores.  Claimant sustained compensable injuries, which
     caused the above noted impairments to his right eye, as
     well as to the cervical and thoracic spine.  He
     experiences difficulty raising his arms; problems
     sleeping; and physical discomfort, which requires
     prescription pain medication and muscle relaxants.  His
     daily activities are very limited as a result of the
     continued difficulties with his right eye and cervical
     and thoracic spine.
                             . . . .
          Based on the above evidence, we find that claimant
     has proven by a preponderance of the evidence that he is
     entitled to benefits for wage loss disability in an
     amount equal to 20% to the body as a whole.
     It appears from the Commission's opinion that it may have
considered the appellee's eye injury when determining the amount of
wage-loss benefits to which appellee was entitled.  As pointed out
above, because the appellee's eye injury is scheduled, that injury
could not and should not have been considered when determining
appellee's wage-loss benefits.  See Clark v. Shiloh Tank and
Erection Company and Hartford Insurance Company, 259 Ark. 521, 534 S.W.2d 240 (1976).
     We vacate the Commission's opinion and remand for the
Commission to determine the extent of wage-loss benefits to which
appellee may be entitled without giving consideration to his
scheduled eye injury or his non-compensable lumbar injury, which
may also have been considered to some extent.
     Reversed and remanded.
     Rogers and Griffen, JJ., agree.