{ "id": 6141021, "name": "Sarah ELLISON v. THERMA-TRU", "name_abbreviation": "Ellison v. Therma-Tru", "decision_date": "1999-05-12", "docket_number": "CA 98-1064", "first_page": "286", "last_page": "294", "citations": [ { "type": "official", "cite": "66 Ark. App. 286" }, { "type": "parallel", "cite": "989 S.W.2d 987" } ], "court": { "name_abbreviation": "Ark. Ct. App.", "id": 13370, "name": "Arkansas Court of Appeals" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "40 Ark. App. 113", "category": "reporters:state", "reporter": "Ark. App.", "year": 1993, "opinion_index": 0 }, { "cite": "40 Ark. App. 108", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6137880 ], "weight": 3, "year": 1992, "opinion_index": 0, "case_paths": [ "/ark-app/40/0108-01" ] }, { "cite": "233 Ark. 786", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1691761 ], "weight": 2, "year": 1961, "opinion_index": 0, "case_paths": [ "/ark/233/0786-01" ] }, { "cite": "698 S.W.2d 302", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 1876597, 6654245 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/ark/287/0345-01", "/ark-app/16/0133-01" ] }, { "cite": "16 Ark. App. 133", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6654245 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/ark-app/16/0133-01" ] }, { "cite": "262 Ark. 695", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1675866 ], "weight": 2, "year": 1978, "opinion_index": 0, "case_paths": [ "/ark/262/0695-01" ] }, { "cite": "Ark. Code Ann. \u00a7 11-9-102", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1987, "pin_cites": [ { "page": "(F)" } ], "opinion_index": 0 }, { "cite": "35 Ark. App. 108", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6648249 ], "weight": 2, "year": 1991, "opinion_index": 0, "case_paths": [ "/ark-app/35/0108-01" ] }, { "cite": "38 Ark. App. 36", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6136783 ], "weight": 2, "year": 1992, "opinion_index": 0, "case_paths": [ "/ark-app/38/0036-01" ] }, { "cite": "Ark. Code Ann. \u00a7 11-9-522", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1987, "opinion_index": 0 }, { "cite": "52 Ark. App. 72", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6137601 ], "weight": 2, "year": 1996, "opinion_index": 0, "case_paths": [ "/ark-app/52/0072-01" ] }, { "cite": "56 Ark. App. 126", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6138564 ], "weight": 3, "year": 1997, "opinion_index": 0, "case_paths": [ "/ark-app/56/0126-01" ] }, { "cite": "28 Ark. App. 187", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6139108 ], "weight": 2, "year": 1989, "opinion_index": 0, "case_paths": [ "/ark-app/28/0187-01" ] }, { "cite": "295 Ark. 1", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1893822 ], "weight": 4, "year": 1988, "opinion_index": 0, "case_paths": [ "/ark/295/0001-01" ] }, { "cite": "Ark. Code Ann. \u00a7 11-9-525", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "weight": 2, "year": 1996, "opinion_index": 0 }, { "cite": "54 Ark. App. 125", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6138371 ], "weight": 2, "year": 1996, "opinion_index": 1, "case_paths": [ "/ark-app/54/0125-01" ] } ], "analysis": { "cardinality": 675, "char_count": 13806, "ocr_confidence": 0.769, "pagerank": { "raw": 1.6927754839221394e-07, "percentile": 0.6994996619494033 }, "sha256": "d8d3c238096bcc2b3af0026b6111596c6ef5fb9b7061b54cfa64ade06a083277", "simhash": "1:a982958dbb4d6b49", "word_count": 2219 }, "last_updated": "2023-07-14T22:49:30.040896+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Hart, Bird, Rogers, and Stroud, JJ., agree.", "Mead, J., dissents." ], "parties": [ "Sarah ELLISON v. THERMA-TRU" ], "opinions": [ { "text": "Wendell L. Griffen, Judge.\nSarah Ellison has appealed the decision by the Workers\u2019 Compensation Commission concerning her claim for permanent disability benefits associated with a compensable back injury governed by the Workers\u2019 Compensation Law that pre-dated Act 796 of 1993. Ellison contends that the Commission erred in its determination that she is entitled to permanent benefits on account of her anatomical impairment equal to a rating of 1% to the body as a whole, that she was entided to wage-loss disability benefits of 3% to the body as a whole, and that the Second Injury Fund (SIF) was not Hable pursuant to Ark. Code Ann. \u00a7 11-9-525 (Repl. 1996). We agree that the Commission erred; therefore, we reverse and remand so that the Commission can determine Ellison\u2019s entitlement to benefits according to the correct legal standards.\nEllison sustained a work-related back injury on May 8, 1991, while employed by Therma-Tru, arising from her work pulling a load of door styles. Therma-Tru accepted the injury as compen-sable and paid indemnity and medical benefits related to it. Ellison continued working for Therma-Tru until July 1, 1993, and has not returned to work elsewhere since that time. She filed a claim for additional compensation benefits in which she contended that she was permanently and totally disabled due to the combined effects of the May 8, 1991 injury and recurrences sustained in December 1992 and June 1993, as well as her pre-existing degenerative back condition and a pre-existing condition of chronic obstructive pulmonary disease. The SIF was joined as a party and denied any liability for benefits, while Therma-Tru denied Ellison\u2019s claim of being permanently and totally disabled. The Commission denied Ellison\u2019s claim for permanent and total disability benefits arising from her May 1991 compensable back injury and compensable recurrences in December 1992 and June 1993. Instead, the Commission found appellant entitled to 1% anatomical impairment, found that she was entitled to wage-loss disability benefits of 3% to the body as a whole, and held that the Second Injury Fund was not hable pursuant to A.C.A. \u00a7 11-9-525 and Midstate Construction Co. v. Second Injury Fund, 295 Ark. 1, 746 S.W.2d 539 (1988).\nIt is settled law that on appellate review of workers\u2019 compensation cases, we view the evidence and all reasonable inferences from it in the light most favorable to the Commission\u2019s findings. Johnson v. Hux, 28 Ark. App. 187, 772 S.W.2d 362 (1989). A decision of the Commission is reversed only if we are convinced fair-minded persons using the same facts could not reach the conclusion reached by the Commission. Mikel v. Engineering Specialty Plastics, 56 Ark. App. 126, 938 S.W.2d 876 (1997). In our review, we defer to the Commission in determining the weight of the evidence and the credibility of the witnesses. Id. The issue is not whether we may have reached a different conclusion or whether the evidence might have supported a contrary finding. Harvest Foods v. Washam, 52 Ark. App. 72, 914 S.W.2d 776 (1996).\nEllison argues that the Commission erroneously focused on deposition testimony by Dr. Stephen Heim, an orthopaedic surgeon, who acknowledged that Ellison had pre-existing back problems before the May 8, 1991 injury, concluded that she sustained some permanent impairment due to the job-related injury, and assessed her permanent anatomical impairment at 6% to the body as a whole due to her overall condition without dividing the impairment between the job-related and the pre-existing condition. When pressed during his deposition to apportion what part of the impairment rating was attributable to the traumatic work injury, Dr. Heim testified:\nWith the trauma that has been relayed to me and knowing the condition of her back, if she has injured her back on the date that you mention, several times, in 1991 and 1992 and was taken off work in 1993, I think that it is likely that if she is incurring ongoing trauma that it has contributed at least 1% to her back.\nThe Commission evaluated Dr. Heim\u2019s testimony and his written opinions regarding a 6% impairment rating in the following words:\nBased on Dr. Heim\u2019s written opinion and deposition testimony, we find that the greater weight of the evidence establishes that only 1% of the claimant\u2019s anatomical impairment rating to the body as a whole is attributable to her work-related injuries and recurrences in 1991, 1992 and 1993. . . Dr. Heim is of the opinion that the claimant\u2019s work-related injuries in 1991 with recurrences in 1992 and 1993 have aggravated claimant\u2019s preexisting abnormality at L5-S1, to the extent that the claimant has experienced an additional 1% impairment (on top of the 5% impairment attributable to the preexisting disc abnormality) attributable to her work-related injury.\nRegarding the Commission\u2019s determination that Ellison is entitled to only 1% anatomical impairment based on Dr. Heim\u2019s statement that if she has \u201congoing trauma that it has contributed to at least 1% to her back,\u201d this case is governed by workers\u2019 compensation law as of 1991, the date of the compensable injury for which appellant seeks permanent disability benefits. Thus, Ark. Code Ann. \u00a7 11-9-522 (1987) applies. That statute and case law pertinent to it such as Bates v. Frost Loggins Co., 38 Ark. App. 36, 827 S.W.2d 664 (1992), and Lockeby v. Massey Pulpwood, Inc., 35 Ark. App. 108, 812 S.W.2d 700 (1991), show that although a workers\u2019 compensation claimant must prove a causal connection between the work-related accident and the later disabling injury, it is not essential that the causal relationship between the accident and the disability be established by medical evidence, nor is it necessary that employment activities be the sole cause of a worker\u2019s injury in order to receive compensation benefits. By focusing on Dr. Heim\u2019s statement regarding the extent that \u201congoing trauma\u201d from the 1991 employment injury and its recurrences contributed to appellant\u2019s back condition, the Commission resorted to Act 796 of 1993 analysis based on Ark. Code Ann. \u00a7 11-9-102(F) (1987) which states, in pertinent part, as follows:\n(ii)(a) Permanent benefits shall be awarded only upon a determination that the compensable injury was the major cause of the disability or impairment.\n(b) If any compensable injury combines with a preexisting disease or condition or the natural process of aging to cause or prolong disability or a need for treatment, permanent benefits shall be payable for the resultant condition only if the compensable injury is the major cause of the permanent disability or need for treatment.\nThe Commission did not refer to \u00a7 ll-9-102(F)(ii)(a) and (b) in its opinion; however, its decision regarding Ellison\u2019s permanent physical impairment demonstrates that Act 796 reasoning was employed in deciding her impairment. Under the law in 1991 when Ellison was injured, it was not necessary that employment activities be the \u201cmajor cause\u201d for permanent disability.\nWe must also reverse the Commission\u2019s determination that Ellison is only entided to wage-loss disability benefits of 3% to the body as a whole. The Commission only factored the work-related injury into its analysis and made no reference to Ellison\u2019s pre-existing degenerative back condition and her chronic obstructive pulmonary disease. Both conditions were clearly established by the record. Concerning Ellison\u2019s pre-existing degenerative back condition, the Commission\u2019s opinion acknowledged Dr. Heim\u2019s opinion and deposition testimony that Ellison had some degree of permanent impairment. Ellison\u2019s testimony regarding her chronic obstructive pulmonary disease was uncontradicted and corroborated by medical records from her doctors.\nUnder the law in effect when Ellison\u2019s claim arose, where the claim is for permanent disability based on incapacity to earn, the Commission is supposed to consider all competent evidence relating to the incapacity, including the age, education, medical evidence, work experience, and other matters reasonably expected to affect the claimant\u2019s earning power. Rooney v. Charles, 262 Ark. 695, 560 S.W.2d 797 (1978); Perry v. Mar-Bax Shirt Co., 16 Ark. App. 133, 698 S.W.2d 302 (1985). Although the Commission cited the seminal case of Glass v. Edens, 233 Ark. 786, 346 S.W.2d 685 (1961), and its progeny, which recognize that these factors are properly considered in determining wage loss disability, it did not consider the effect of Ellison\u2019s pre-existing degenerative condition and her respiratory problem in concluding that Ellison\u2019s wage-loss disability is 3% to the body as a whole.\nThe Commission also erred when it failed to address the wage loss disability issue and Ellison\u2019s claim that she is permanently and totally disabled from the perspective of the \u201codd lot\u201d doctrine. Moser v. Arkansas Lime Co., 40 Ark. App. 108, 842 S.W.2d 456 (1992), supp. op., 40 Ark. App. 113, 846 S.W.2d 188 (1993), and similar cases provide that an employee who is injured to the extent that she can perform services that are so limited in quality, dependability, or quantity that a reasonably stable market for them does not exist may be classified as totally disabled. This employee is said to fall within the odd-lot category of disabled workers. Act 796 of 1993 abolished the odd-lot doctrine for permanent disability claims based on injuries that occurred after July 1, 1993 (see A.C.A. \u00a7 11-9-522(e) (Repl. 1996)); however, the doctrine was alive and applicable to Ellison\u2019s disability claim stemming from her 1991 compensable injury and its recurrences.\nFinally, the Commission erred when it held that the Second Injury Fund is not hable pursuant to Ark. Code Ann. \u00a7 11-9-525 and Midstate Const. Co. v. Second Injury Fund, 295 Ark. 1, 746 S.W.2d 539 (1988), and concluded that Ellison failed to prove the third factor required by the Midstate Construction opinion (that her prior disability or impairment combined with the additional permanent disability or impairment caused by the 1991 compensable injury to result in the current disability status). Even if Ellison\u2019s anatomical impairment from the 1991 injury and its recurrences was only 1%, the combined effect of that impairment and her pre-existing degenerative disease and pre-existing respiratory condition resulted in her current disability status by all the medical evidence. While the Commission\u2019s opinion concludes at page 9 that \u201cthe greater weight of the evidence establishes the claimant\u2019s respiratory problems in no way \u2018combined\u2019 with the claimant\u2019s most recent back problems to cause her present wage loss disability,\u201d the employer\u2019s physician even opined after the December 1992 episode, \u201cI really think that this lady is going to need to find another line of work.\u201d The October 11, 1993 medical report from Dr. Sills includes a statement that Ellison \u201cis unable to work due to her severe chronic obstructive pulmonary disease and back pain.\u201d Dr. Harford, the company physician, concluded in a July 21, 1993 report that appellant was \u201c[n]ot able to do factory work. She needs to change occupations.\u201d Likewise, Dr. Heim, the orthopaedic surgeon deposed by the parties, testified that \u201cMrs. Ellison is probably not a good candidate for vigorous activity that requires a lot of bending, stooping and lifting. She should have a sedentary job.\u201d This and other proof in the record shows that fair-minded people could not agree with the Commission that the combined effect of Ellison\u2019s work related 1991 injury and her pre-existing respiratory condition and preexisting degenerative back condition did not combine to produce her current disability.\nReversed and remanded.\nHart, Bird, Rogers, and Stroud, JJ., agree.\nMead, J., dissents.", "type": "majority", "author": "Wendell L. Griffen, Judge." }, { "text": "Meads, Judge,\ndissenting. I cannot agree with the majority to reverse this case. I believe the correct law was properly considered and applied to the facts of the case and the decision should be affirmed.\nThe record reflects that the Administrative Law Judge (ALJ) made the determination in her March 22, 1996, opinion, and reiterated in her April 18, 1996, amended opinion, that \u201c[t]his injury occurred prior to July 1, 1993, therefore Act 796 does not apply.\u201d Therma Tru and Liberty Mutual Ins. Co. appealed these decisions and specified in their Notice of Appeal: \u201cThe ALJ\u2019s finding that the injury is not governed by Act 796 is contrary to the facts and the law and is error.\u201d The Commission issued an opinion on October 22, 1996, finding that claimant sustained a recurrence of her 1991 injury in December 1992 and again in June 1993. This opinion includes the following:\nIn reaching our decision, we note that the respondents assert that any claim related to the claimant\u2019s 1993 back problems is governed by the provisions of Act 796 of 1993. However, we note that the amendments of Act 796 do not apply to a recurrence of an injury sustained before the effective date of the Act. Atkins Nursing Home v. Gray, 54 Ark. App. 125, 923 S.W.2d 897 (1996).\nClearly, the issue of whether Act 796 of 1993 or the law preceding Act 796 applies to these facts has been litigated and properly decided, and I do not believe the Commission failed to consider and apply the appropriate law when it reached its June 11, 1998, decision now on appeal to this court. For the majority to conclude that the Commission gave lip-service only to pre-Act 796 law but actually applied Act 796 is an insult to the Commission and wholly speculative.\nI dissent.", "type": "dissent", "author": "Meads, Judge," } ], "attorneys": [ "Walker, Shock, Harp & Hill, P.L.L.C., by: Eddie H. Walker, Jr., for appellant.", "Ledbetter, Cogbill Arnold & Harrison, L.L.P., by: E. Diane Graham, for appellee.", "Judy W. Rudd, for appellee." ], "corrections": "", "head_matter": "Sarah ELLISON v. THERMA-TRU\nCA 98-1064\n989 S.W.2d 987\nCourt of Appeals of Arkansas Divisions I and II\nOpinion delivered May 12, 1999\nWalker, Shock, Harp & Hill, P.L.L.C., by: Eddie H. Walker, Jr., for appellant.\nLedbetter, Cogbill Arnold & Harrison, L.L.P., by: E. Diane Graham, for appellee.\nJudy W. Rudd, for appellee." }, "file_name": "0286-01", "first_page_order": 314, "last_page_order": 322 }