Freight Sales Furniture Company and ITT Hartford Insurance Company v. William R. Baldridge

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

MARGARET MEADS, JUDGE

DIVISION II

FREIGHT SALES FURNITURE COMPANY AND ITT HARTFORD INSURANCE COMPANY,

APPELLANTS

V.

WILLIAM R. BALDRIDGE,

APPELLEE

CA00-109

September 13, 2000

APPEAL FROM THE WORKERS' COMPENSATION COMMISSION,

NO. E101227

AFFIRMED

Appellee, William Baldridge, suffered an admittedly compensable injury to his sciatic nerve on November 1, 1988, after falling from a ladder. This appeal arises as a result of a hearing held on March 2, 1999, to determine the extent of appellee's permanent disability. The administrative law judge found, among other things, that appellee was entitled to wage-loss disability in the amount of sixty percent. The Commission affirmed that finding. Appellants appeal from that portion of the Commission's decision relating to wage-loss disability, arguing that it is not supported by substantial evidence. We affirm.

Appellee, who was fifty-eight years old at the time of the hearing, has a BA degree in education. Prior to his compensable injury, appellee worked as a coach and teacher; as a salesman selling insurance, investments, and furniture; and was involved in anentrepreneurial

venture involving development of a coal mine. On November 1, 1988, appellee sustained a compensable injury to his sciatic nerve when an overhead box fell and knocked him off a ladder. He fell four feet to a concrete floor. Appellee has been treated by numerous physicians including Dr. C.E. Ransom, a family practitioner; Dr. Ronald Williams, a neurosurgeon; Dr. Ronald Fewell, a specialist in family practice; and Dr. David Kline, a neurologist who is generally recognized as the world's leading authority on peripheral nerve injuries. Appellee also underwent an independent medical examination performed by Dr. Barry Baskin, a physiatrist.

At the hearing on his claim, appellee testified that several months after the accident, his leg began to atrophy. He was eventually sent to Dr. Kline, who confirmed Dr. Williams's diagnosis of sciatic nerve damage. Appellee said that his leg continued to atrophy until he had a big leg and a little leg. He began to limp and was told that his condition would only get worse. He took a job selling furniture for Dillard's because appellant Freight Sales fired him after his accident. He continued to work at Dillard's until his limp became noticeable; it hurt to sit, stand, or walk; and he was no longer able to keep up with the other salesman. Appellee then obtained a job selling insurance to school teachers, but could not continue in that job because he was unable to drive for long hours and then sit and wait in the teacher's lounge. Appellee finally went to work for a neighbor who is a farmer, but he was only able to work an hour or two in the morning before he wouldhave to go home and rest. Later, he might come back for another hour in the afternoon. He was laid off through the winter, and when he returned in the spring he was told they hired someone else. Appellee has not worked since. Appellee last taught school in 1968, and has not had a securities license for ten or fifteen years.

With regard to his current physical condition, appellee testified that his left foot is numb, he hurts constantly, and he gets spasms in his left leg. Some nights he has bad muscle cramps and spasms. He has had numerous falls because his leg gives way, and he is unable to do the jobs he has done previously because he cannot sit or stand for very long. Usually he cannot get around for a day or so every week. He is unable to play golf, hunt, or ride horses, but is able to sweep the living room floor and wash dishes. He is able to get firewood and cut it over a period of days, and he might throw a few pieces in the truck, but he doesn't do any splitting except with a power splitter on a tractor. Appellee killed a deer, but it was behind his house about fifty yards away, and he walked out with his crossbow and shot it. In 1996 his leg got so bad that he could not get out of bed. Because appellants were no longer paying for his medical treatment and he had no insurance, he was treated by Dr. Fewell, a personal friend. In November 1998, appellee was approved for social security disability.

Dr. Fewell testified that he examined appellee within a year of his injury, gave him steroid injections as early as 1991, and saw him casually as a friend. He took a more active role in appellee's treatment when his workers' compensation benefits were terminated, andthe first notation in his medical records of a formal examination was in 1996. A January 1996 MRI revealed degenerative disc disease of the lumbar spine and a ruptured disc, which he felt was a result of appellee's fall. Dr. Fewell testified that he had no doubt that the weakness and atrophy in appellee's left leg contributed to his degenerative disc disease. Appellee had altered body mechanics due to the stress on his low spine because his weight could not be evenly distributed between his two feet. It was Dr. Fewell's opinion that the left leg weakness was the result of the nerve injury which caused the leg to atrophy, and that the nerve injury occurred as a result of the fall from the ladder in 1988.

Dr. Fewell testified further that if appellee were working, he might do well for weeks or months, but at times he would have so much trouble that his attendance would suffer, and most employers would not tolerate it. He did not believe that appellee could be employed on a permanent basis and said that appellee's full-time jobs had been held with duress and agony. Dr. Fewell also testified that he agreed with Dr. Ransom's report dated March 17, 1994, which said that appellee was totally and permanently disabled and disagreed with Dr. Baskin's finding that appellee's degenerative condition was not related to his work injury. Dr. Fewell testified that he is familiar with degenerative conditions and knows that they progress over time, but he feels that appellee's condition has been accelerated beyond random degeneration.

The record also contains various medical records. On March 17, 1994, Dr. Ransom wrote that appellee has marked atrophy of his left leg and calf and cannot walk without alimp. He has pain day and night, awaking at night with pain and numbness in his left leg. He is unable to sit or stand for longer than thirty minutes and had to quit work as a furniture salesman for Dillard's because of pain. Dr. Ransom wrote:

I feel that Mr. Baldridge's pain is certainly real. I feel that he has chronic asymmetric sensory motor neuropathy of the left leg, most likely secondary to his fall in 1988 when he fell from the ladder. I feel that Mr. Baldridge is totally and permanently disabled to hold gainful employment and I feel that he should be declared so as soon as possible.

On February 26, 1997, Dr. Ransom wrote that over the past two years, appellee's left leg decreased significantly in size to the point that he lost eighty to eighty-five percent of the muscle mass in his left leg and seventy-five percent of the muscle mass in his right leg. Approximately three months previous to the date of the letter appellee was unable to walk for a period of three to four weeks, and approximately one week before the date of the letter appellee was unable to stand. Dr. Ransom wrote that appellee has been unable to hold gainful employment since 1988, even though he has attempted to work for very short periods of time. There was no doubt in his mind that appellee was totally and permanently disabled and would remain so for the rest of his life. He stated that he had been in family practice for twenty-seven years, has not known any other patient who deserves total and permanent disability more, and believes it stems from appellee's 1988 injury.

On February 18, 1997, Dr. Baskin, an independent medical examiner, wrote that appellee has atrophy of the lower extremities, right worse than left, occasional pain with sitting or standing, and progressive weakness requiring him to walk with crutches. It washis opinion that appellee should refrain from heavy lifting and from a job that required him to be on his feet all day long, and that he would benefit from a sit-down job with the ability to stand and move about as he wished. Dr. Baskin stated that appellee apparently had quite a bit of weakness initially in his lower left extremity, but the injury is now approximately nine years old, and it is difficult to determine the residual appellee has. On October 20, 1997, Dr. Baskin concluded that appellee's current condition is related more to his degenerative disc condition than to his work-related fall.

After reviewing the evidence the Commission wrote:

The administrative law judge found that the claimant has sustained wage loss disability in the amount of 60%, in addition to his physical impairment: "When considering his age of fifty-seven years, which is considered old by most industry standards, his education is good, but he is not physically capable of utilizing all of his mental potential, work experience is good, but re-employment in any of his previous occupations would be limited at best, and considering how all of this will impact his future earning capacity, the sixty (60%) awarded is supported by a preponderance of the evidence." After de novo review of the entire record, we affirm this finding. The claimant testified that he can perform some limited physical activities, such as sweeping floors. The claimant's extensive and varied work experience gives him the chance to procure wages, even if on a limited, part-time basis.

On appeal, appellants argue that the Commission's finding that appellee sustained a sixty percent wage-loss disability is not supported by substantial evidence. When reviewing a decision of the Workers' Compensation Commission, we 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 Serv., 265 Ark. 489, 579 S.W.2d 360 (1979). Substantial evidence is thatrelevant evidence which a reasonable mind might accept as adequate to support a conclusion. Harvest Foods v. Washam, 52 Ark. App. 72, 914 S.W.2d 776 (1996). 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 Co. v. Bond, 7 Ark. App. 65, 644 S.W.2d 321 (1983). It is the function of the Commission to determine the credibility of witnesses and the weight to be given their testimony. Wade v. Mr. C. Cavenaugh's, 298 Ark. 363, 768 S.W.2d 521 (1989).

For reversal appellants argue that appellee is a highly-educated individual who has lost his ambition and is no longer motivated to work; that he was able to work as a farm hand almost five years after his nerve injury; that he is still capable of performing his own chores; that two years prior to the hearing he was able to successfully "stalk" a deer and kill it with his crossbow; that Dr. Baskin concluded that appellee's problems and restrictions were related to his degenerative disc disease; that the Commission put more "stock" in Dr. Ransom's medical records; and that Dr. Fewell was testifying as a friend and not a doctor. We do not agree.

In the first place, appellee testified in detail about his current physical problems and their impact on his ability to work. This testimony is supported by Dr. Fewell's testimony that he did not believe appellee could be employed on a permanent basis and that appellee's full-time jobs had been held with agony. It is also supported by Dr. Ransom's opinion thatappellee is totally and permanently disabled. As to appellee being capable of performing his own chores and successfully "stalking" a deer, appellee testified that his friends and neighbors have helped a lot; that he tries to do what he can with the help of his wife; that usually he cannot get around for a day or so every week; that sometimes his condition is worse when he helps with household chores; that he lives with pain every day; and that the deer that he "stalked" was behind his house, and he walked out and shot it. In regard to appellee's farm work, appellee testified that he would work an hour or two and then go home and rest; that he might come back for another hour in the late afternoon; and that he intended to return to that job, but was told that they hired someone else. Moreover, although appellants rely heavily on Dr. Baskin's opinion, conflicts in the medical evidence are a question of fact for the Commission; when the Commission chooses to accept the testimony of one physician over another in such cases, we are powerless to reverse the decision. Henson v. Club Products, 22 Ark. App. 136, 736 S.W.2d 290 (1987).

After a thorough review of the record, we can only conclude that there is substantial evidence to support the Commission's decision.

Affirmed.

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