Enter. Prods. Co. v. Leach
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Cite as 2009 Ark. App. 148
ARKANSAS COURT OF APPEALS
DIVISION III
No. CA 08-888
Opinion Delivered MARCH 4, 2009
ENTERPRISE PRODUCTS COMPANY
and ESIS
APPELLANTS
APPEAL FROM THE WORKERS’
COMPENSATION COMMISSION
[NO. F412400]
V.
BILLY J. LEACH
APPELLEE
AFFIRMED ON DIRECT APPEAL;
AFFIRMED ON CROSS-APPEAL
JOHN B. ROBBINS, Judge
Appellee Billy J. Leach sustained an injury to his cervical spine on June 17, 2003,
while working as a truck driver for appellant Enterprise Products Company. In a previous
proceeding, the Workers’ Compensation Commission found the injury to be compensable
and awarded temporary total disability benefits, as well as medical treatment to include
an anterior microdiskectomy of C6-7 with fusion performed on January 13, 2005. A
controversy subsequently arose concerning Mr. Leach’s entitlement to permanent benefits,
and after a hearing the Administrative Law Judge awarded benefits for 15 percent permanent
wage-loss disability and a 10 percent permanent anatomical impairment. The Commission
modified the ALJ’s award and found that Mr. Leach was entitled to 10 percent wage-loss
and an 8 percent permanent impairment.
Cite as 2009 Ark. App. 148
On direct appeal from the Commission’s most recent order, Enterprise Products
Company argues that there is no substantial evidence to support the Commission’s award
of wage-loss disability. Mr. Leach has cross-appealed, arguing that the Commission erred
in reducing the ALJ’s permanent impairment rating from 10 percent to 8 percent, and further
erred in reducing the ALJ’s wage-loss award from 15 percent to 10 percent. We affirm on
both direct appeal and on cross-appeal.
In determining the sufficiency of the evidence to support the Commission’s findings,
we view the evidence and all reasonable inferences deducible therefrom in the light most
favorable to the Commission’s findings, and we will affirm if those findings are supported
by substantial evidence. Farmers Coop. v. Biles, 77 Ark. App. 1, 69 S.W.3d 899 (2002).
Substantial evidence is such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion. Id. The determination of the credibility and weight of the
evidence is within the province of the Commission. Id.
Mr. Leach testified that he is sixty years old and did not finish high school but
obtained a GED. He served in the military as an aircraft maintenance technician from 1965
through his retirement from the military in 1985. Mr. Leach went into the truck driving
profession in 1989 and began driving for Enterprise Products Company in December 2001.
He drove tankers for the appellant, and sustained his compensable injury when he lifted a
hose over his head, resulting in severe neck and back pain.
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Cite as 2009 Ark. App. 148
Following his fusion surgery on January 13, 2005, Mr. Leach was released to return
to work for Enterprise Products Company on April 1, 2005. He returned to work at his
regular duties on April 3, 2005, and continued working for appellant through the end of
August 2005. According to Mr. Leach, his job was very strenuous and he was required to
pull as much as a hundred feet of two-inch hose that weighed well over 100 pounds.
Moreover, he testified that driving the tanker truck involved a lot of bouncing and that,
“You’ve got 45,000 pounds of liquid that’s sitting there just slamming you back and forth.”
Mr. Leach indicated that his job activities aggravated his surgery and that his pain
progressively worsened until he could not deal with the pain anymore, causing him to quit
his employment. He stated that extreme neck pain and limited use of his right arm affected
his ability to drive a truck, and he maintained that he can no longer engage in that line of
work. Mr. Leach has not been employed since the time that he quit working for appellant.
On direct appeal, Enterprise Products Company argues that the Commission erred in
finding that Mr. Leach was entitled to any permanent wage-loss disability because
Mr. Leach failed to prove that his compensable injury resulted in a diminution of his earning
capacity. The wage-loss factor is the extent to which a compensable injury has affected the
claimant’s ability to earn a livelihood. Emerson Elec. v. Gaston, 75 Ark. App. 232, 58
S.W.3d 848 (2001). Arkansas Code Annotated section 11-9-522(b) (Repl. 2002) provides:
(b)(1) In considering claims for permanent partial disability benefits in excess
of the employee’s percentage of permanent physical impairment, the Workers’
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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.
(2) However, so long as an employee, subsequent to his or her injury, has
returned to work, has obtained other employment, or has a bona fide and reasonably
obtainable offer to be employed at wages equal to or greater than his or her average
weekly wage at the time of the accident, he or she shall not be entitled to permanent
partial disability benefits in excess of the percentage of permanent physical
impairment established by a preponderance of the medical testimony and evidence.
In this case, the appellant contends that there was no evidence that Mr. Leach suffered any
wage-loss disability in addition to his permanent impairment, and specifically asserts that
he is barred from such benefits under subsection (b)(2) because he returned to his work as
a truck driver from April through August of 2005 performing the same job at the same
wages.
In its argument, Enterprise Products Company directs us to Mr. Leach’s testimony
on cross-examination, when he acknowledged that he had married a woman and moved to
the Dominican Republic to be with her after quitting his employment at the end of August
2005. Mr. Leach lived in either the Dominican Republic or Honduras from September 2005
through March 2007, and acknowledged taking several long flights back and forth to the
United States during that time. The appellant submits that Mr. Leach was physically capable
of continuing his employment, but instead chose to quit so he could move out of the country
to be with his wife. The appellant notes that Mr. Leach was returned to full duty on April
1, 2005, and that there were no restrictions placed on him by any physician since that time.
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In fact, he sought no medical treatment from the time he left Enterprise Products Company
until visiting the VA hospital in May 2007, and even then no restrictions were placed on his
job activities. Moreover, before resuming his work in April 2005, Mr. Leach passed a
physical examination given by the department of transportation clearing him to return to
work. Finally, appellant directs us to Mr. Leach’s testimony that his impending doctor visits
for suspected prostate cancer are an impediment to his applying for work due to scheduling
conflicts. Enterprise Products Company argues that the Commission’s decision awarding
wage-loss disability is not one that a fair-minded person would have reached given the same
set of facts.
We hold that the 10 percent permanent wage-loss disability awarded by the
Commission was supported by substantial evidence. While Mr. Leach did return to working
as a truck driver for a period of months following his surgery, this did not forever foreclose
him from wage-loss disability benefits because subsection 11-9-522(b)(2) denies entitlement
to such benefits only so long as an employee has returned to work at equal wages. Here,
Mr. Leach testified that his return to work aggravated his condition, causing extreme neck
pain and loss of use of his right arm, to the extent that he could no longer continue his
employment duties. He testified that he repeatedly complained to his supervisor, but he was
not offered lighter work. This testimony was deemed credible by the Commission, and it
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Cite as 2009 Ark. App. 148
established some measure of wage-loss disability as Mr. Leach could no longer be employed
at this strenuous level as a truck driver.
The evidence demonstrated that Mr. Leach sustained a compensable neck injury,
diagnosed as cervical spondylosis and radiculopathy at the C6-7 level, which necessitated
the need for fusion surgery. He reached maximum medical improvement and established
an 8 percent permanent anatomical impairment. Mr. Leach is sixty years old with limited
education and a limited range of prior work experience. While Mr. Leach did move out of
the country for almost two years, he explained that it was less expensive to live there on his
military retirement and that there were no VA hospitals to visit. The absence of any current
documented work restrictions does not bar appellee’s wage-loss claim as a matter of law,
and there is other evidence to support his claim. And while he has recently undergone
testing for suspected prostate cancer, his disability manifested itself long before then and it
is evident that the Commission did not take that nonwork-related condition into account as
it awarded only 10 percent in permanent wage-loss. On this record, we conclude that the
Commission committed no error in so doing.
We now turn to Mr. Leach’s cross-appeal, wherein he first argues that the
Commission erred in reducing his permanent anatomical impairment rating from 10 percent
to 8 percent.
Pursuant to Ark. Code Ann. § 11-9-522(g)(1)(A) (Repl. 2002), the
Commission has been charged with adopting an impairment guide to be used in the
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assessment of physical impairment. Pursuant to this directive, the Commission adopted the
American Medical Association’s Guides to the Evaluation of Permanent Impairment (4th
ed. 1993). See Excelsior Hotel v. Squires, 83 Ark. App. 26, 115 S.W.3d 823 (2003). Mr.
Leach contends that the 10 percent impairment rating assigned by the ALJ is both consistent
with the AMA Guides and the opinion of Dr. F.R. Shrader, who assigned a 10 percent rating
utilizing Table 75, Section IV(D), of the AMA Guides on May 24, 2007.
We hold that it was not error for the Commission to reduce appellee’s impairment
rating from 10 percent to 8 percent based on the evidence presented. The two competing
alternatives here are found in Table 75, page 3/113 of the AMA Guides. Section IV(C) of
that table provides for an 8 percent impairment for single-level cervical spinal fusion without
residual signs or symptoms, and section IV(D) assigns a 10 percent rating for single-level
cervical spinal fusion with residual signs or symptoms. The controversy relates to Mr.
Leach’s radiculopathy, and the Commission indicated that it could not rely on subjective
signs or symptoms to increase the impairment rating.
Prior to the fusion surgery, Mr. Leach was diagnosed with radiculopathy. This
diagnosis was based on objective studies, and in particular a December 8, 2004, medical
report documented that a nerve conduction study showed an acute right C7 radiculopathy.
However, following the C6-7 fusion surgery on January 13, 2005, there was an absence of
medical evidence demonstrating that radiculopathy was still present. In fact, in the
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subsequent medical reports authored by his surgeon, Dr. Joseph Hudson, Dr. Hudson made
no mention of radiculopathy but reported that Mr. Leach was doing very well and that his
fusion was progressing nicely. Dr. Hudson released him to work on April 1, 2005.
Although Mr. Leach testified that, after returning to work after the surgery, he was in a
considerable amount of pain, Ark. Code Ann. § 11-9-102(16)(A)(ii) (Repl. 2002) provides
that complaints of pain cannot be considered when determining physical impairment. And
while Mr. Leach is correct that Dr. Shrader indicated in his report that radiculopathy was a
residual sign increasing the rating to 10 percent pursuant to the AMA Guides, Dr. Shrader
never examined Mr. Leach and his opinion was limited to his evaluation of the prior medical
records. Because Mr. Leach failed to establish, post-operatively and objectively, the
presence of radiculopathy or any other residual sign or symptom independent of his
continuing pain, there was substantial evidence to support the 8 percent impairment awarded
by the Commission pursuant to section IV(C) of Table 75 of the AMA Guides.
Mr. Leach’s remaining argument is that the Commission erred in reducing the ALJ’s
wage-loss award from 15 percent to 10 percent. Mr. Leach asserts that this reduction was
based in part on the Commission’s erroneous award for only an 8 percent permanent
impairment as opposed to the 10 percent permanent impairment awarded by the ALJ.
However, for reasons previously stated, we affirm the 8 percent impairment rating awarded
by the Commission. Moreover, we think reasonable persons could conclude that appellee’s
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permanent partial disability was limited to 10 percent under these facts. While the
Commission credited Mr. Leach’s testimony that he was no longer employable as a tanker
truck driver, Mr. Leach is not totally disabled and he has not since applied for any work.
Lack of interest or motivation to return to work impedes the assessment of a claimant’s loss
of earning capacity. See Ellison v. Therma Tru, 71 Ark. App. 410, 30 S.W.3d 769 (2000).
Upon review of the evidence, viewing the facts in the light most favorable to the
Commission’s decision, we hold that its award of 10 percent permanent wage-loss disability
is supported by substantial evidence.
Affirmed on direct appeal; affirmed on cross-appeal.
MARSHALL and BROWN, JJ., agree.
Worley, Wood & Parrish, P.A., by: Jarrod S. Parrish, for appellant.
Joe M. Rogers, for appellee.
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