Michael E. Pollard v. Meridian Aggregates, Reliance National Indemnity Co., and Second Injury Fund

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION IV

MICHAEL E. POLLARD

APPELLANT

V.

MERIDIAN AGGREGATES,

RELIANCE NATIONAL INDEMNITY

CO., and SECOND INJURY FUND

APPELLEES

CA 05-305

OCTOBER 12, 2005

APPEAL FROM THE WORKERS'

COMPENSATION COMMISSION

[NO. F004974]

AFFIRMED

John B. Robbins, Judge

This is the second appeal in this workers' compensation case. Appellant Michael Pollard sustained a compensable back injury while working for appellee Meridian Aggregates in late March 2000, and on October 10, 2000, Mr. Pollard underwent a decompressive lumbar laminectomy at L2-3 and L3-4. Meridian Aggregates accepted responsibility for medical benefits and temporary total disability benefits, but controverted Mr. Pollard's claim to benefits for a permanent partial impairment and permanent wage loss. The Workers' Compensation Commission initially found that Mr. Pollard failed to prove that he sustained a compensable anatomical impairment. In the first appeal, we reversed that finding and instructed the Commission to assess a permanent anatomical impairment rating. See Pollard v. Meridian Aggregates, Ark. App. , S.W.3d (Sept. 29, 2004). Because we reversed on the issue of anatomical impairment, we also advised the Commission to address Mr. Pollard's argument that he is entitled to permanent wage-loss disability.

On remand, the Commission found that Mr. Pollard sustained a 10% anatomical impairment. The Commission further found that Mr. Pollard sustained additional permanent wage-loss disability of 40%. Pursuant to Ark. Code Ann. § 11-9-525 (Repl. 2002), the Commission held separate appellee Second Injury Fund liable for the wage-loss disability on the basis of Mr. Pollard's pre-existing back condition and two prior surgeries.

Mr. Pollard now brings this second appeal, arguing that the Commission erred in failing to find him permanently and totally disabled. Second Injury Fund does not challenge its responsibility for 40% wage-loss, but argues that the Commission committed no error in failing to award permanent total disability benefits. Because the issue in this appeal does not involve appellee Meridian Aggregates, it has not filed a brief. We affirm the Commission's decision.

Because Mr. Pollard sustained an injury to a part of his body that is not scheduled under workers' compensation laws, his entitlement to permanent disability benefits is controlled by Ark. Code Ann. § 11-9-522 (Repl. 2002), which provides in pertinent part:

(b)(1) In considering claims for permanent partial disability benefits in excess of the employee's percentage of permanent physical impairment, the Workers' Compensation Commission may take into account, in addition to the percentage of permanent physical impairment, such factors as the employee's age, education, work experience, and other matters reasonably expected to affect his or her future earning capacity.

Pursuant to this statute, when a claimant has been assigned an anatomical rating to the body as a whole, the Commission can find a claimant totally permanently disabled upon wage-loss factors. Whitlatch v. Southland Land & Dev., 84 Ark. App. 399, 141 S.W.3d 916 (2004). Wage-loss disability is the extent to which a compensable injury has affected the claimant's ability to earn a livelihood. Id.

In reviewing the Commission's decision, the question is not whether the evidence would have supported findings contrary to the ones made by the Commission or even whether we would have reached a different conclusion upon the same facts; the question is whether reasonable minds could reach the conclusion made by the Commission. Williams v. Brown's Sheet Metal, 81 Ark. App. 459, 105 S.W.3d 382 (2003). When a claim for benefits is denied because the claimant has failed to show an entitlement to those benefits 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. See id.

Mr. Pollard was forty-four years old at the time of the hearing. He testified that he graduated from high school and had some computer and electronics training, although he did not complete the training. In 1985, Mr. Pollard suffered back problems related to the L4-5 and L5-S1 discs, and as a result Dr. Gray Danielson performed a decompressive lumbar laminectomy and fusion. The surgeries were successful, and after being off work for almost a year, Mr. Pollard returned to the work force and performed various jobs such as a security guard, logger, and equipment operator. Mr. Pollard indicated that his back did not cause him any further significant problems until his employment with Meridian Aggregates.

Mr. Pollard began working for Meridian Aggregates in 1999 and was required to operate various types of equipment. He testified that in March 2000 he was operating a track hoe, and that the whipping action of the track hoe aggravated his back condition. He stated that the pain worsened over of a period of two weeks and that on April 4, 2000, his employer took him off work until he could get his back problems resolved. However, Mr. Pollard has not returned to any employment since that date.

After conservative treatment failed, Dr. Danielson performed surgery on October 10, 2000. Mr. Pollard indicated that the pain he felt in 2000 was similar to the pain he felt in 1985, but was more intense. He further stated that after the October 2000 surgery he has experienced increased numbness extending into his legs and groin area.

Mr. Pollard testified that his most recent injury has left him unable to resume his work duties. He stated that he cannot stand all day or sit for long periods of time, and that he has to lay down two or three times on his best day. Mr. Pollard further stated that he walks with the assistance of a cane. He testified that, "I cannot return to any of the prior jobs that I have done," and that, "There is no job that I can think of that I could do on a forty-hour basis."

On cross-examination, Mr. Pollard acknowledged that since the most recent surgery Dr. Danielson released him to hunt with a crossbow, and that he tried to go hunting but "walked about fifty feet and had to sit down for a while and then got up." Mr. Pollard also stated that he and his wife have done some short-term fishing from the bank. Mr. Pollard testified that he is on pain medication as needed, but that he had not taken any medication since a week before the hearing. He confirmed that he can read and write, and that he has no learning disabilities.

As for Mr. Pollard's future employment prospects, Dr. Danielson stated in a report dated March 27, 2001, that, "I do not think that it is reasonable to expect him to go back to his previous job and I think he will need to be retrained in a more sedentary occupation." On June 19, 2002, Dr. Danielson assigned limits of three hours sitting, one hour standing, and one hour walking over the course of an eight-hour work day.

Dr. Bruce Safman evaluated Mr. Pollard and reported on July 19, 2001, that, "I have no intention of having him return to heavy labor," but that, "I would promote a gradual reintegration of this patient into vocational endeavors." Dr. Kent Hensley reviewed the medical records and offered the following opinion in a report dated May 14, 2002:

In my opinion, this patient has reached maximum medical improvement. In my opinion, he is no longer temporarily totally disabled. However, he will be severely limited. This patient has involvement of every level of his lumbar spine. Therefore, in my opinion, he should not return to jobs that require more than occasional bending and lifting over 20 pounds. Given his prior work history he almost certainly will require vocational rehabilitation or at least vocational counseling prior to returning to the work force.

Mr. Pollard underwent a functional capacity evaluation on May 20, 2002, resulting in the following assessment:

His strength capabilities do not match any work category as defined by the U.S. Department of Labor's Dictionary of Occupational Titles. Even sedentary work is restricted as the client needs to alternate sitting, walking, standing, or lying down frequently during the day.

Mr. Pollard argues on appeal that there is no substantial evidence to support the Commission's decision that he is not permanently and totally disabled. He asserts that his work history includes jobs requiring physical labor, and that he is no longer able to engage in such employment. Mr. Pollard notes that his surgeon, Dr. Danielson, gave him significant physical restrictions and only authorized a maximum of a five-hour work day when his limitations are taken into account. Mr. Pollard submits that those limitations eliminate his ability to complete an eight-hour work day, and that for all practical purposes it is impossible for him to return to the work force.

Mr. Pollard's argument resembles the odd-lot doctrine. Under the odd-lot doctrine, when an injured worker makes a prima facie case of total disability by showing that he can only perform services that are so limited that a reasonably stable market for them does not exist, the burden shifts to the employer to show that some kind of suitable work is regularly and continuously available to him. See Ellison v. Therma Tru, 71 Ark. App. 410, 30 S.W.3d 769 (2000). However, the odd-lot doctrine has been abolished by Act 796 of 1993, codified at Ark. Code Ann. § 11-9-522(e) (Repl. 2002). See Emerson Elec. v. Gaston, 75 Ark. App. 232, 58 S.W.3d 848 (2001).

We hold that the Commission's opinion displays a substantial basis for denying permanent total disability benefits. While it is evident that Mr. Pollard is physically unable to return to any jobs involving heavy labor, there was evidence presented that he could perform sedentary work in some capacity. In its opinion, the Commission made note of the May 20, 2002, functional capacity evaluation, which indicated a minimal chance of Mr. Pollard returning to the work force. However, the Commission has the authority to accept or reject medical opinion, see Williams v. Brown's Sheet Metal, supra, and in this case the Commission relied on the medical opinions to the contrary. In this regard, Drs. Danielson, Safman, and Hensley all indicated that vocational training for a more sedentary occupation was appropriate, while none of these doctors gave the opinion that Mr. Pollard had been rendered completely unable to work. And while Mr. Pollard could not think of any job he would be able to perform, he also testified that he is able to engage in limited physical activities, takes pain medication only intermittently, and has the benefit of a high school education. While we may have reached a different conclusion on the same facts, we cannot say that reasonable minds could not conclude that Mr. Pollard failed to prove that he was permanently and totally disabled.

Affirmed.

Gladwin and Baker, JJ., agree.