Allie Crelia v. Rheem Manufacturing Company, Crawford & Company, Second Injury Fund, and Death & Permanent Total Disability Fund
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DIVISION IV
CA06-1224
ALLIE CRELIA
APPELLANT
May 16, 2007
APPEAL FROM THE ARKANSAS
WORKERS’ COMPENSATION
COMMISSION
[NO. F209256]
V.
RHEEM MANUFACTURING
COMPANY, Crawford & Company,
Second Injury Fund, Death & Permanent
Total Disability Fund
APPELLEES
AFFIRMED
JOSEPHINE LINKER HART, Judge
Appellant, Allie Crelia, argues that the Arkansas Workers’ Compensation Commission
erred in finding that she was not permanently and totally disabled or, alternatively, erred in
finding that she was not entitled to wage-loss disability over and above the permanent partial
impairment rating to her right hand. We affirm.
On August 5, 2002, appellant sustained an admittedly compensable injury to her right
hand during her employment with appellee Rheem Manufacturing Company. The injury
occurred when four fingers of her right hand were amputated while she was working on a
press. Rheem’s insurance carrier, Crawford & Company, accepted a sixty-three percent
anatomical impairment rating to appellant’s right hand. Appellant also received benefits for
a compensable injury to her left elbow, epicondylitis.
Appellant argues that the Commission erred when it found that she was not
permanently and totally disabled, and she marshals several facts in support of her position.1
Appellant notes that she was sixty-four years old at the time of the hearing, has a high-school
education, and has performed factory work all her life. She further notes that she has had
four fingers on her dominant hand amputated, suffers from post-traumatic stress disorder
from the accident, has preexisting problems with ulcers on her feet that limit the amount of
standing and walking she can do, and has developed epicondylitis in her left arm due to
overcompensation with that arm.
“Permanent total disability” is defined as the “inability, because of compensable injury
or occupational disease, to earn any meaningful wages in the same or other employment.”
Ark. Code Ann. § 11-9-519(e)(1) (Repl. 2002). Further, “[t]he burden of proof shall be on
the employee to prove inability to earn any meaningful wage in the same or other
employment.” Ark. Code Ann. § 11-9-519(e)(2). When an appeal is taken from the denial
of a claim by the Commission, the substantial-evidence standard of review requires that we
affirm the decision if the Commission’s opinion displays a substantial basis for the denial of
relief. See McDonald v. Batesville Poultry Equipment, 90 Ark. App. 435, 206 S.W.3d 908
(2005). We defer to the Commission on issues involving the weight of the evidence and the
credibility of the witnesses. Id.
1
Appellees do not cross-appeal the issue of whether a claimant who has a scheduled
injury that does not constitute permanent total disability as set forth in Ark. Code Ann. §
11-9-519(b), may nevertheless be awarded permanent total disability benefits. This issue
requires interpretation of Ark. Code Ann. § 11-9-519(c) and (f), and we expressly left this
issue open in McDonald v. Batesville Poultry Equipment, 90 Ark. App. 435, 206 S.W.3d 908
(2005).
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CA06-1224
Here, the ALJ, in an opinion adopted and affirmed by the Commission, considered
the facts noted by appellant. The ALJ, however, observed that appellant underwent a
functional-capacity examination, which considered the amputation of her fingers and her
epicondylitis, and was found to be capable of performing “medium” work. Further, the ALJ
noted that Rheem offered employment in janitorial services that fell within these restrictions
and was willing to make accommodations to facilitate appellant’s employment, including
allowing her to sit as needed and to work only in the administrative offices. Appellant,
however, declined this employment.
Also, a clinical psychologist, Winston Wilson,
recommended that appellant be considered for work that was less demanding than she
previously had performed. Further, to alleviate her foot condition, Dr. John Moore directed
that she wear compression stockings and limit the amount of time she spent each day in
prolonged standing. The burden of proof was on appellant to prove an inability to earn any
meaningful wage in the same or other employment, and given the evidence relied on by the
Commission, we cannot say that there was not a substantial basis for the denial of relief.
Appellant alternatively argues that the Commission erred in finding that she was not
entitled to wage-loss disability over and above her impairment rating to her right hand,
noting her previous diagnosis of foot ulcers. Appellant asserts that the Second Injury Fund
bears the liability for wage-loss disability benefits under Ark. Code Ann. § 11-9-525 (Repl.
2002), which governs the liability of the Second Injury Fund. She argues that there is no
language in that statute excluding consideration of wage loss to a claimant who has a
scheduled injury as well as a prior impairment.
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CA06-1224
Appellant’s injury to her hand was a scheduled injury. W e observe that Ark. Code
Ann. § 11-9-521(g) (Repl. 2002), provides that “[a]ny employee suffering a scheduled injury
shall not be entitled to permanent partial disability benefits in excess of the percentage of
permanent physical impairment set forth above except as otherwise provided in § 11-9519(b).” The later provision, Ark. Code Ann. § 11-9-519(b), then describes what constitutes
permanent total disability when there is a combination of two scheduled injuries of particular
types. Considering these statutes, we hold that a claimant with a scheduled injury is not
entitled to permanent partial disability benefits. Our holding here is consistent with our
decision in Maxey v. Tyson Foods, Inc., 66 Ark. App. 301, 991 S.W.2d 624 (1999), rev’d on
other grounds, 341 Ark. 306, 18 S.W.3d 328 (2000), where we held that a claimant was not
entitled to wage-loss disability benefits for a scheduled injury.
Moreover, as we held in Maxey, we construe Ark. Code Ann. § 11-9-521 and -525
harmoniously, and thus, the claimant’s recovery for a scheduled injury is restricted to the
appropriate scheduled amount, regardless of whether the claimant is seeking recovery from
the employer, the insurer, or the Second Injury Fund. Thus, we hold that appellant is not
entitled to wage-loss benefits in addition to the compensation she received for her scheduled
injury.
Affirmed.
GLADWIN and ROBBINS, JJ., agree.
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CA06-1224
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