Gladys JOHNSON v. GENERAL DYNAMICS
CA 93-830
Court of Appeals of Arkansas En Banc
June 22, 1994
878 S.W.2d 411
The appellant also argues that the Commission erred in allowing a witness, Imogene Beavers, to testify by deposition. We do not address this question because the appellant has failed to include the challenged deposition in the record before us, and we are therefore unable to determine whether reversible error occurred. See Death and Permanent Total Disability Trust Fund v. Whirlpool Corp., 39 Ark. App. 62, 837 S.W.2d 293 (1992).
Because of our resolution of the appellant‘s first point for reversal, we need not address the remainder of her arguments.
Reversed and remanded.
JENNINGS, C.J., and ROBBINS, J., agree.
Shackleford, Shackleford & Phillips, P.A., by: Norwood Phillips, for appellee.
JUDITH ROGERS, Judge. This is an appeal from the Workers’ Compensation Commission‘s order affirming and adopting the administrative law judge‘s decision. The ALJ found that appellant had proven that she had sustained a compensable occupational disease which resulted in a period of temporary, total disability commencing on October 15, 1991, and extending until July 29, 1992; that appellant failed to prove that a violation of an Arkansas statute or official regulation caused in substantial part her occupational disease; and that appellant is not entitled to any permanent disability benefits. On appeal, appellant contends that she is entitled to permanent impairment benefits and wage loss disability benefits and that the Commission erred in failing to award benefits for violation of an Arkansas statute or official regulation. We reverse and remand in part, and affirm in part.
The record reflects that appellant had worked for appellee frоm September of 1975 until October of 1991, soldering computer component boards with the aid of a magnifying glass or microscope. The performance of this task produced fumes and smoke which were inhaled by appellant. Appellant began experiencing respiratory problems approximately six months prior to the time she quit work in October 1991. She sought medical treatment in August of 1991, and was diagnosed with obstructive pulmonary disease and hypertensive vascular disease. The Commission found that her condition was causally connected with her employment, and awarded appellant temporary total benefits. The Commission found, however, that appellant was not entitled to an award of permanent disability benefits. Appellant argues that there is no substantial evidence to support the Commission‘s denial of permanent disability benefits. The Commission found that appellant was not entitled to permanent anatom
Appellant first argues that the Commission erred in finding that she had suffered no permanent, anatomical impairment as a result of her occupational disease. We agree. The dissent points out that appellant argues that she is permanently, totally disabled and not that she has “some degree” of permanent partial disability. However, it stands to reason that if one argues total disability a partial disability can be found in the alternative. See Cite.
Permanent impairment, which is usually a medical condition, is any permanent functional or anatomical loss remaining after the healing period has been reached. Ouachita Marine v. Morrison, 246 Ark. 882, 440 S.W.2d 216 (1969). An injured employee is entitled to the payment of compensation for the permanent functional or anatomical loss of use of the body as a whole whether his earning capacity is diminished or not. Id. In the case of Wilson & Co. v. Christman, 244 Ark. 132, 424 S.W.2d 863 (1968), the supreme court stated that the Commission is “not limited, and never has been limited, to medical evidence only in arriving at its decision as to the amount or extent of permanent partial disability suffered by an injured employee as a result of injury.” In fact, it is the duty of the Workers’ Compensation Commission to translate the evidence on all issues before it into findings of fact. Gencorp Polymer Products v. Lander, 36 Ark. App. 190, 820 S.W.2d 475 (1991). It has alsо been said that nothing in our law does or should require precise evidence of the precise amount of disability. Bibler Bros. v. Ingram, 266 Ark. 969, 587 S.W.2d 841 (1979). It appears that the court in Bibler was referring to anatomical impairment and/or wage loss disability.
After reviewing the record it is clear that the Commission denied appellant benefits for permanent, partial, anatomical loss of the use of her bоdy for the sole reason that there was no numerical rating assigned by a physician. However, the record contains evidence from which reasonable minds could conclude that appellant sustained some degree of permanent impairment.
Appellant testified that six months before she had to
The record further reveals that appellant was instructed to use inhalers to help her condition. Dr. Dedman stated that appellant‘s exercise tolerance had increased, but he felt that this was brought about by the use of inhalers. He also testified that, as with any type of lung disease, there was a good chance that appellant‘s condition would worsen over the progression of time. Dr. Dedman felt that appellant was permanently disabled as a result of her illness.
The record also discloses that appellant was unable to perform activities she once could because of her diminished breathing capacity. Dr. Dedman testified that appellant could not ambulate any significant distance without chest discomfort and shortness of breath. Dr. Dedman stated that he did not believe this condition would get any better. Appellant testified that she was able to garden, perform yard work, carpentry work, and farming before she had this condition. She stated that as a result of her illness she was not able to do her housework.
Where the Commission denies a claim because of the claimant‘s failure to meet his burden of proof, the substantial evidence standard of review requires that we affirm the Commission‘s decision if its opinion displays a substantial basis for the denial of relief. Johnson v. American Pulpwood Co., 38 Ark. App. 6, 826 S.W.2d 827 (1992). We will reverse a decision of the Commission where convinced that fair-minded persons with the same facts before them could not have arrived at the conclusion reached by the Commission. Wade v. Mr. C. Cavenaugh‘s, 25 Ark. App. 237, 756 S.W.2d 923 (1988). Based on the facts in this case, we find that the opinion of the Commission fails to display a substantial basis for the denial of relief. We are not convinced that fаir-minded persons with the same facts presented in this case could reach the same conclusion as the Commission. The Commission had before it cogent evidence presented by appellant which could support a finding of permanent, anatomical impairment, and we note that there was no evidence in the record to rebut this strong evidence. Therefore, we reverse and remand on this issue. On remand of this case, it will be the function of the Commission to translate the evidence presented them into findings of fact. The dissent mischaracterizes this holding as awarding the appellant “some degree” of permanent, partial disability. To the contrary, we are holding that appellant is entitled to some degree of permanent, partial, anatomical impairment disability. The determination of the precise degree of impairment is the Commission‘s duty to determine under the law; therefore, we remand.
Appellant also argues that there is no substantial evidence to support the Commission‘s denial of wage loss disability benefits. We disagree.
The wage loss factor is the extent to which a compensable injury has affected the claimant‘s ability to earn a livelihood. Grimes v. North American Foundry, 42 Ark. App. 137, 856 S.W.2d 309 (1993).
The Commission denied wage loss disability benefits based on evidence that the appellant had been offered employment within her restricted capacity. The Commission stated that a bona fide and reasonably obtainable offer to be employed at wages equal to or greater than her average weekly wage at the time appellant last worked was tendered to her. Appellant contends that the work that was offered did not meet the work restrictions placed upon her by her doctors since she was still еxposed to fumes at the plant.
Drs. Dedman and Adamson felt that appellant was
After reviewing the evidence, wе cannot say there is no substantial basis for the Commission‘s denial of wage loss benefits.
For her last point, appellant argues that the Commission erred in refusing to award benefits for a violation of an Arkansas statute or official regulation.
Where established by clear and convincing evidence that an injury or a death is caused in substantial рart by the failure of an employer to comply with any Arkansas statute or official regulation pertaining to the health or safety of employees, compensation provided for by § 11-9-501(a)-(d) shall be increased by 25 percent.
Appellant argues that under
The Commission found that there was nothing in the record to indicate that the appellant‘s occupational disease was caused by a violation of an Arkansas statute or official regulation. In making our review, we recognize that it is the function of the Commission to determine the credibility of the witnesses and the weight to be given their testimony. CDI Contractors v. McHale, 41 Ark. App. 57, 848 S.W.2d 941 (1993). Therefore, we cannot say that there is no substantial evidence to support the Commission‘s decision.
Reversed and remanded in part; affirmed in part.
JENNINGS, C.J., concurs in part, and dissents in part.
JOHN E. JENNINGS, Chief Judge, concurring in part, dissenting in part. The majority holds, as I understand it, that the Commission erred in not awarding to the аppellant “some degree” of permanent partial disability. One problem with this holding is that this is not the appellant‘s contention. To the contrary, appellant argues that she “has proven that she is totally, permanently disabled.” There is not the slightest suggestion by the appellant that the Commission, on its own, ought to have found “some degreе” of permanent partial disability. The majority states that “it is clear that the Commission denied appellant benefits for permanent, partial anatomical, loss of the use of her body for the sole reason there was no numerical rating assigned by a physician.” Even the appellant recognizes that this is not true:
The Commission, in adopting the administrative law judge‘s decision, made the finding that the appellant was entitled to no permanent disability benefits for two reasons. First being that she was given no permanent partial physical impairment rating, and secondly, that the claimant was offered employment within her capacity, so that she would be limited to her anatomicаl impairment, pursuant to
Ark. Code Ann. § 11-9-522(b) . [Appellant‘s brief.]
Apart from the problem that the issue we reverse on is not urged by the appellant, none of thе cases cited by the majority has any significant bearing on the case at bar. For instance the court in Bibler Bros., Inc. v. Ingram, 266 Ark. 969, 587 S.W.2d 841 (1979), says that nothing in the law requires precise evidence of the amount of “disability.” The court clearly was referring to the combination of both anatomical disability and wage-loss disability. See, generally, Glass v. Edens, 233 Ark. 786, 346 S.W.2d 685 (1961); Arkansas Best Freight v. Brooks, 244 Ark. 191, 424 S.W.2d 377 (1968). In Brooks the court said:
The pronouncement in Glass v. Edens, 233 Ark. 786, 346 S.W.2d 685 (1961), settled the law with reference to non-scheduled injuries. “Loss of the use of the body as a whole” involves two factors. The first is the functional or anatomical loss. That percentage is fixed by medical evidence. Secondly, there is the wage-loss factor, that is, the degree to which the injury has effected claimant‘s ability to earn a livelihood. [Emphasis added.]
In determining permanent partial disability, factors such as the clаimant‘s age, education, experience, and other matters affecting wage-loss, must be considered along with the medical evidence.
The practical difficulties in remanding this case to the Commissiоn with instructions to fix, on this evidence, a certain degree of permanent partial disability, are overwhelming. Any finding of fact the Commission makes will simply be a guess.
The case at bar is one of those unusual workers’ compensation cases in which the principle of the burden of proof has some bearing. While I agree with the majority that therе is evi
Finally, the majority agrees with the Commission that there was evidence to support the Commission‘s finding that had the appellant returned to work “she would have earned the same wage that she was earning at the time of her departure.”
For the reasons stated, I respectfully dissent.