White v. State
Annotate this Case
Download PDF
Cite as 2009 Ark. App. 768
ARKANSAS COURT OF APPEALS
DIVISION I
CA09-699
No.
Opinion Delivered
ROBERT WHITE
November 18, 2009
APPELLANT
V.
AN APPEAL FROM THE ARKANSAS
WORKERS’ COMPENSATION
COMMISSION
[ No. F704587]
ARKANSAS STATE HIGHWAY &
TRANSPORTATION DEPARTMENT,
PUBLIC EMPLOYEE CLAIMS and
SECOND INJURY FUND
APPELLEES
AFFIRMED
LARRY D. VAUGHT, Chief Judge
Robert White appeals the decision of the Workers’ Compensation Commission denying
his claims for permanent-total and wage-loss disability benefits. White argues on appeal that
there is a lack of substantial evidence supporting the Commission’s decision. We affirm.
On April 18, 2007, White was employed with appellee Arkansas Highway Department
when he suffered a compensable injury to his low back after a misstep. Appellee paid medical,
temporary-total disability benefits, and permanent-partial disability benefits for a one-percent
impairment rating. He was initially treated for this injury by Dr. Ron Bates, who diagnosed a
lumbar strain, released White from work, and prescribed medications, heat, and rest. Because
White continued to complain of pain, Dr. Bates recommended an MRI, which was performed
on May 3, 2007. The MRI revealed a bulging disc at L4-5 and evidence of a previous right
1
Cite as 2009 Ark. App. 768
hemilaminectomy and bulging disc at L5-S1.1 After reviewing these results, Dr. Bates referred
White to neurosurgeon Dr. Scott Schlesinger and continued White’s work release.
Dr. Schlesinger recommended conservative treatment for White in the form of lumbar
epidural injections, physical therapy, a TENS unit, and traction. Dr. Schlesinger continued to
keep White off work during this recommended treatment. White had three injections, but they
did not relieve his pain. On July 9, 2007, Dr. Schlesinger recommended a second MRI, which
revealed significant degenerative changes but no evidence of a surgically treatable problem. Dr.
Schlesinger recommended a functional capacity evaluation (FCE) and also concluded that White
had reached maximum medical improvement.
The FCE was performed on August 7, 2007. The FCE examiner reported that White
gave a reliable effort and concluded that White could perform medium work. After reviewing
the FCE results, Dr. Schlesinger released White from treatment, stating, “there is nothing further
I can do for him.” Dr. Schlesinger said, “I believe [he] is motivated in desiring to do work, but
I do not think he is going to be able to return to the kind of work he was previously doing.
However . . . the limitations are well outlined in his FCE.” On October 8, 2007, Dr. Schlesinger
wrote that White was entitled to a seven-percent impairment rating to his low back if he had not
been previously rated. If he had been rated previously, Dr. Schlesinger opined that White was
entitled to a one-percent impairment rating for his 2007 injury. Dr. Bates continued to prescribe
chronic-pain medication. Dr. Bates’s report of December 6, 2007, reflected that White had
It was undisputed that in February 1990, White suffered a non-work-related back
injury at L5-S1 that required surgery. After surgery, he returned to work at full duty and
continued to work until the 2007 injury.
1
2
Cite as 2009 Ark. App. 768
retired from the highway department because of pain.
White filed a claim for permanent-total and wage-loss disability benefits, which was
controverted by appellee. At the hearing before the administrative law judge (ALJ), White
testified that he was fifty-four years old and graduated from high school. While he had received
a welding certificate of completion from a vocational school, he testified that he never worked
as a welder. He worked as a stock boy and ran machinery for Platt Rogers for five and one-half
years. Then in 1978 or 1979 he began working for the highway department and worked there
for twenty-nine years in several different capacities—as a laborer, mower, truck driver, and
backhoe operator. From 1988 until April 2007, he worked as a motor grader, which required him
to operate heavy equipment to grade roads.
White testified that while his back condition was a little better than when he injured it in
April 2007, he was in constant pain. He said that he took Hydrocodone for pain on a regular
basis. He said that the medication made him drowsy and dizzy and that he did not think it would
be safe for him to operate the motor grader while taking his medication. He also testified that
he had difficulty sleeping, standing, and sitting. He could no longer fish, work in the yard, or
travel. He said that he retired because he could not perform his work for the highway
department. He testified that there were no light-duty jobs available at the highway department,
but acknowledged that he did not confirm this with his employer. He claimed that he was
permanently and totally disabled. White’s wife, Patricia, testified that White’s activities were
limited and that after the FCE he took pain pills and rested for two days.
The ALJ found that White failed to prove by a preponderance of the evidence that he
3
Cite as 2009 Ark. App. 768
was entitled to permanent-total or wage-loss disability benefits due to his 2007 compensable
injury. The ALJ cited the FCE results that demonstrated White was capable of performing work
at the medium classification. The ALJ also cited Dr. Schlesinger’s report that issued White a onepercent impairment rating for the 2007 injury. While the ALJ recognized that Dr. Schlesinger
stated that White would be unable to perform his prior work as a motor grader, the ALJ also
noted that no physician had opined and the record did not support the conclusion that White
was unable to perform work within the medium-work category or that he was permanently and
totally disabled. Further, White admitted that he had not sought other suitable employment with
the highway department or any other employers within the medium-work classification. The ALJ
found that White was not seeking any employment at the time of the hearing, but instead elected
to draw his retirement benefits, which grossed approximately $1,893.96 per month. As such, the
ALJ concluded that White was not motivated or interested in pursuing other suitable work, and
this impeded the assessment of White’s loss-of-earning capacity. The Commission affirmed and
adopted the ALJ’s opinion. White appeals from this decision.
White contends on appeal that there is a lack of substantial evidence supporting the
Commission’s decision that he is not entitled to permanent-total or wage-loss disability benefits.
In reviewing decisions from the 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. Lee v. Alcoa Extrusion, Inc., 89 Ark. App. 228,
232, 201 S.W.3d 449, 453 (2005). Substantial evidence exists if reasonable minds could reach the
same conclusion. Id., 201 S.W.3d at 453. When a claim is denied because the claimant has failed
4
Cite as 2009 Ark. App. 768
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., 201 S.W.3d at 453.
Permanent-total disability means inability, because of compensable injury or occupational
disease, to earn any meaningful wages in the same or other employment. Ark. Code Ann. § 11-9519(e)(1) (Repl. 2002). The burden of proof is 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).
Pursuant to Arkansas Code Annotated section 11-9-522(b)(1) (Repl. 2002), when a
claimant has been assigned an anatomical-impairment rating to the body as a whole, the
Commission has the authority to increase the disability rating, and it can find a claimant
permanently and totally disabled based upon the wage-loss factor. Lee, 89 Ark. App. at 233, 201
S.W.3d at 454. The wage-loss factor is the extent to which a compensable injury has affected the
claimant’s ability to earn a livelihood. Id., 201 S.W.3d at 454. The Commission is charged with
the duty of determining disability based upon a consideration of medical evidence and other
matters affecting wage loss, such as the claimant’s age, education, work experience, and other
matters reasonably expected to affect his or her future earning capacity. Id. at 233, 201 S.W.3d
at 454; Ark. Code Ann. § 11-9-522(b)(1). In considering factors that may affect an employee’s
future earning capacity, we consider the claimant’s motivation to return to work, because a lack
of interest or a negative attitude impedes our assessment of the claimant’s loss of earning
capacity. Lee, 89 Ark. App. at 233, 201 S.W.3d at 454.
We hold that substantial evidence supports the Commission’s decision that White did not
5
Cite as 2009 Ark. App. 768
meet his burden of proving his entitlement to permanent-total or wage-loss disability benefits.
White’s compensable injury did not require surgery, and he was issued only a one-percent
impairment rating for it. The FCE evaluator concluded that White was capable of performing
medium work. Neither of White’s treating physicians opined that he was permanently and totally
disabled or that he could not work. To the contrary, Dr. Schlesinger opined that White could
return to work as per the FCE recommendation, which was at the medium classification.
Further, there was substantial evidence supporting the Commission’s finding that White was not
motivated to return to work. He admitted that he had not looked for work within the mediumwork classification and that he had not contacted the highway department to inquire about
positions that were within his restrictions. Instead, he elected to receive retirement benefits.
White contends that the Commission arbitrarily disregarded his credibility and complaints
of pain, which the Commission is not permitted to do. He cites his history of returning to work
after the 1990 back injury and surgery and the FCE report that documented his complaints of
pain throughout the evaluation. He points to his wife’s testimony that after the FCE he was in
pain for two days. White contends that the Commission ignored the evidence that he was taking
pain medication that affected his ability to work. White argues that if the Commission had
considered all of this evidence, “it is clear that [he] is not able to return to ‘suitable work’ because
in his case there is no such thing.”
We disagree. First, the Commission did not arbitrarily disregard the credibility of White
and his complaints of pain. While the Commission did not expressly state, “We do not believe
White’s testimony that he is unable to work because of pain,” it implicitly reached that
6
Cite as 2009 Ark. App. 768
conclusion by finding that (1) the FCE report concluded that he would work at the medium
level; (2) Dr. Schlesinger opined that White could work as per the FCE; and (3) White was not
motivated to return to work. Credibility findings are matters within the province of the
Commission rather than this court. Ellison v. Therma Tru, 71 Ark. App. 410, 30 S.W.3d 769
(2000).
Second, White never presented any evidence that no “suitable work” existed for him. The
burden of proof is 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). The only evidence White presented on
this issue was that he was in pain and could not work. He did not ask his employer if they had
work within his restrictions available for him, and he did not pursue any other jobs within his
work restrictions.
Accordingly, we hold that substantial evidence supports the Commission’s decision.
Affirmed.
HART and ROBBINS, JJ., agree.
7
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.