{ "id": 6138169, "name": "WAL-MART STORES, INC., and Claims Management, Inc. v. Jerrell WESTBROOK", "name_abbreviation": "Wal-Mart Stores, Inc. v. Westbrook", "decision_date": "2002-04-17", "docket_number": "CA 01-1282", "first_page": "167", "last_page": "173", "citations": [ { "type": "official", "cite": "77 Ark. App. 167" }, { "type": "parallel", "cite": "72 S.W.3d 889" } ], "court": { "name_abbreviation": "Ark. Ct. App.", "id": 13370, "name": "Arkansas Court of Appeals" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "62 Ark. App. 255", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6140818 ], "weight": 2, "year": 1998, "pin_cites": [ { "parenthetical": "holding that the \"major cause\" requirement was satisfied by evidence that an injury necessitated performance of surgery and that this surgery, at the site of a previous one, was the reason for the additional 2% impairment rating" }, { "parenthetical": "holding that the \"major cause\" requirement was satisfied by evidence that an injury necessitated performance of surgery and that this surgery, at the site of a previous one, was the reason for the additional 2% impairment rating" } ], "opinion_index": 0, "case_paths": [ "/ark-app/62/0255-01" ] }, { "cite": "41 Ark. App. 201", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6140577 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "203-04" }, { "page": "336" } ], "opinion_index": 0, "case_paths": [ "/ark-app/41/0201-01" ] }, { "cite": "272 Ark. 244", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1174871 ], "weight": 2, "year": 1981, "pin_cites": [ { "page": "247" }, { "page": "393" } ], "opinion_index": 0, "case_paths": [ "/ark/272/0244-01" ] }, { "cite": "59 Ark. App. 85", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6137261 ], "weight": 3, "year": 1997, "pin_cites": [ { "page": "90" }, { "page": "909" }, { "page": "87" } ], "opinion_index": 0, "case_paths": [ "/ark-app/59/0085-01" ] }, { "cite": "Ark. Code Ann. \u00a7 11-9-102", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "weight": 5, "pin_cites": [ { "page": "(4)", "parenthetical": "A" }, { "page": "(4)(JE)(i)" }, { "page": "(8)" }, { "page": "(14)", "parenthetical": "A" }, { "page": "(14)(B)" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 561, "char_count": 12864, "ocr_confidence": 0.684, "pagerank": { "raw": 1.9258776437049496e-07, "percentile": 0.7336035807493023 }, "sha256": "d8a5f050df9b365000c2ff62b58379ac8de6147a35882eba7d8872f15cdf537e", "simhash": "1:8cea1b9d6eda4f23", "word_count": 2073 }, "last_updated": "2023-07-14T22:00:28.541561+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Robbins and Baker, JJ., agree." ], "parties": [ "WAL-MART STORES, INC., and Claims Management, Inc. v. Jerrell WESTBROOK" ], "opinions": [ { "text": "Josephine Linker Hart, Judge.\nAppellants appeal from an order of the Arkansas Workers\u2019 Compensation Commission granting appellee temporary total disability benefits and permanent partial disability benefits. Appellants argue that there was not substantial evidence to establish that appellee (i) suffered a right shoulder injury arising out of and in the course of his employment; (ii) was entitled to temporary total disability benefits; and (iii) was entitled to permanent partial disability benefits associated with a 3% permanent impairment rating. We affirm.\nOn September 3, 1999, appellee, as an employee of appellant Wal-Mart, was restacking pallets of bicycles when a pallet fell, hitting appellee\u2019s right shoulder and pinning him against another pallet. Appellee testified that he suffered extreme pain, but after being pulled out from underneath the bicycles, he worked for most of the day. The next day, his shoulder was sore, but he continued to work. He testified that following the accident he notified his supervisor.\nAppellee further testified that he continued to work from September 1999, until he was excused from work, according to medical records, on February 7, 2000. Appellee stated that, following the accident, his pain worsened, and he suffered numbness in the mornings and could not lift his arm, and in January 2000, he went to see a company physician about his shoulder. The doctor referred him to another physician, Jay M. Lipke. Dr. Lipke performed surgery on appellee, according to medical records, on February 14, 2000, and released him to return to work for limited or light duty on April 24, 2000. Appellee acknowledged that, after the September accident, he continued to work and receive a salary from his other job as a minister, even though from February to April the associate pastors performed the \u201cmajor parts\u201d of his job. He also testified that the only previous injury to his right shoulder was a fall on ice that occurred seventeen or eighteen years earlier, and he had never had any pain or soreness in his right shoulder prior to September 3, 1999.\nAccording to a letter dated January 25, 2000, Dr. Lipke noted that appellee had \u201ca large cyst over the right AC joint and pain with forward elevation and abduction to 90 degrees,\u201d with x-rays showing \u201csome degenerative changes of the right AC joint and no other abnormalities.\u201d The doctor aspirated the cyst and opined that \u201chis symptoms are related to AC osteoarthritis\u201d and possibly could have \u201cunderlying rotator cuff pathology.\u201d An MR.I was performed on February 3, 2000, which revealed (i) a \u201c[l]arge chronic full thickness tear of the rotator cuff. . . with atrophy of all muscles involving the rotator cuff\u201d; (ii) a \u201c[sjuperior subluxation of the humeral head such that it abuts the undersurface of the acromion\u201d; and (iii) a \u201c[hjypertropic changes of the AC joint with a[n] associated ganglion cyst superior to the AC joint.\u201d\nDr. Lipke, in his notes of February 7, 2000, stated that appel-lee\u2019s \u201cMR.I reveals evidence of a large chronic rotator cuff tear with proximal migration of the humeral head,\u201d as well as a cyst \u201cthat emanates from the AC joint.\u201d The doctor opined that appellee \u201cwould benefit from surgical intervention\u201d as an attempt to \u201crestore rotator cuff function if at all possible.\u201d He also indicated that during the surgery he would \u201cexcise the cyst\u201d and \u201cresect the distal clavicle.\u201d Surgery was performed on February 14, 2000, and in the postoperative report, Dr. Lipke noted that appellee had a \u201cchronic irreparable rotator cuff tear\u201d and \u201cacromi-oclavicular osteoarthritis with synovial cyst.\u201d\nDr. Lipke subsequently determined that, within a reasonable degree of medical certainty, appellee had \u201c60% [permanent partial impairment] to the upper extremity\u201d with \u201c30% [to the] body as a whole,\u201d that the impairment was based on objective data, but that the work injury was not the \u201cmajor cause\u201d of appellee\u2019s impairment. In a letter to appellee dated April 20, 2000, Dr. Lipke stated, \u201cI don\u2019t feel the work-related injury is the major cause of your impairment.\u201d He concluded that \u201c[bjased on the size and chronicity (long standing nature) of the tear, I think this is something that happened prior to the work[-]related injury.\u201d\nOn May 12, 2000, in response to a letter from appellants\u2019 attorney, Dr. Lipke stated that \u201c[t]he 30% rating to the body as a whole is based on a 50% impairment to the right upper extremity as a whole.\u201d He further concluded that \u201c[t]he 50% impairment to the extremity as a whole is based on loss of strength and motion due to the chronic rotator cuff tear.\u201d On June 6, 2000, in response to a letter from appellee\u2019s attorney, Dr. Lipke stated that appellee\u2019s problems began with the work-related injury and that this injury \u201caggravated a pre-existing problem with the right shoulder (chronic rotator cuff tear).\u201d Dr. Lipke further stated that, prior to the surgery, he felt that the work-related injury was the entire cause of appellee\u2019s shoulder problems. He noted, however, that at the time of the surgery, appellee had a chronic rotator cuff tear that predated the work-related injury. He further stated:\nI feel the work[-] related injury was an aggravating factor, or the straw that broke the camel\u2019s back and this has added to his underlying shoulder problem. With this in mind, I would say the work[-] related injury added 5% impairment to his shoulder. In other words, 45% of his impairment would be related to the preexisting injury and 5% could be assigned to the work [-[related injury.\nOn August 21, 2000, in response to a letter from appellants\u2019 attorney, Dr. Lipke stated that of the 50% impairment, 10% was caused by the work-related injury and 90% by the pre-existing condition.\nOn appeal to the Commission from the administrative law judge\u2019s award of benefits to appellee, the Commission concluded that appellee established by a preponderance of the evidence that his \u201cright shoulder difficulties were aggravated by, and thus causally related to, his employment.\u201d The Commission further concluded that because Dr. Lipke opined that the compensable injury accounted for 10% of appellee\u2019s total impairment, \u201cthe compensa-ble injury is the major cause of 3% of claimant\u2019s total permanent impairment to the body as a whole,\u201d and consequently, the Commission awarded permanent partial disability benefits on that basis. The concurring opinion noted that a 5% impairment to the right upper extremity is equivalent to a 3% impairment to the body as a whole. The Commission also awarded temporary total disability benefits from February 7, 2000, when Dr. Lipke excused appellee from work, to April 24, 2000, when the doctor released appellee to return to work. The Commission concluded that appellee\u2019s employment as a minister during that time period did not preclude the award of temporary total disability benefits.\nOn appeal, appellants first argue that the Commission erred in concluding that appellee suffered a right shoulder injury arising out of and in the course of his employment. Primarily, they argue that appellee failed to establish a causal relationship between his employment and his injury.\nA \u201ccompensable injury\u201d is one \u201carising out of and in the course of employment.\u201d Ark. Code Ann. \u00a7 11-9-102(4) (A) (i) (Repl. 2002). As the claimant, appellee had the burden of proving a compensable injury by a preponderance of the evidence. Ark. Code Ann. \u00a7 11-9-102(4)(JE)(i) (Repl. 2002). \u201cThus, in order to prove a compensable injury [the claimant] must prove, among other things, a causal relationship between his employment and the injury.\u201d McMillan v. U.S. Motors, 59 Ark. App. 85, 90, 953 S.W.2d 907, 909 (1997).\nAppellee testified that he had no previous problems with his shoulder, that he was in pain following the accident, and that the pain worsened over time. Dr. Lipke attributed part of his impairment to the accident, concluding that the accident was the \u201cstraw that broke the camel\u2019s back,\u201d aggravating his underlying shoulder problems. While appellants point out reasons why the Commission could have discredited appellee\u2019s testimony, the Commission found appellee to be credible and concluded that appellee proved by a preponderance of the evidence that he sustained an injury arising out of and during the course of his employment and that there was a causal relationship between his injury and his employment. \u201cIn determining the sufficiency of the evidence to sustain the findings of the Commission, we review the evidence in the light most favorable to the Commission\u2019s findings and affirm if they are supported by substantial evidence.\u201d McMillan, 59 Ark. App. at 87, 53 S.W.2d at 908. Further, \u201cit is the function of the Commission to determine the credibility of the witnesses and the weight to be given their testimony.\u201d Id. Because the evidence establishes a substantial basis for the Commission\u2019s decision, we affirm.\nAppellants argue that because appellee worked as a minister and received full pay, he was not totally incapacitated from earning wages, and thus, appellee failed to establish that he was entitled to temporary total disability benefits from February 7, 2000, to April 24, 2000. We note that \u201c[temporary total disability is that period within the healing period in which the employee suffers a total incapacity to earn wages.\u201d Arkansas State Hwy. & Transp. Dep\u2019t. v. Breshears, 272 Ark. 244, 247, 613 S.W.2d 392, 393 (1981). \u201c\u2018Disability\u2019 means incapacity because of compensable injury to earn, in the same or any other employment, the wages which the employee was receiving at the time of the compensable injury. . . .\u201d Ark. Code Ann. \u00a7 11-9-102(8) (Repl. 2002). However, while appellee was able to earn wages as a minister during that period, as we explained in Stevens v. Mountain Home Sch. Dist., 41 Ark. App. 201, 203-04, 850 S.W.2d 335, 336 (1993), for the purpose of defining disability, \u201c \u2018any other employment\u2019 means any other employment in lieu of the one in which the employee was injured.\u201d Because appellee was working both jobs when he was injured, his job as a minister was not \u201cany other employment\u201d undertaken in place of his employment at WalMart. Accordingly, we affirm the Commission\u2019s award of temporary total disability-benefits.\nAppellants further contend that the Commission erred in awarding appellant permanent partial disability benefits because Dr. Lipke opined that the compensable injury was not the major cause of appellee\u2019s permanent disability or need for treatment. The relevant statute provides 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 compensa-ble injury is the major cause of the permanent disability or need for treatment.\nArk. Code Ann. \u00a7 ll-9-102(4)(F) (Repl. 2002). \u201c\u2018Major cause\u2019 means more than fifty percent (50%) of the cause.\u201d Ark. Code Ann. \u00a7 11-9-102(14) (A) (Repl. 2002). \u201cA finding of major cause shall be established according to the preponderance of the evidence. . . .\u201d Ark. Code Ann. \u00a7 11-9-102(14)(B) (Repl. 2002).\nWe note, however, that the Commission did not award permanent partial disability benefits based on Dr. Lipke\u2019s conclusion that appellee had a 30% impairment to the body as a whole. Rather, consistently with Dr. Lipke\u2019s findings, the Commission concluded that the compensable injury was the major cause of 3% of appellee\u2019s permanent impairment to the body as a whole, and consequently, the Commission awarded permanent partial disability benefits on that basis. Dr. Lipke\u2019s exacting testimony provided the Commission with a preponderance of evidence from which to determine that the compensable injury was the major cause of appellee\u2019s 3% impairment. See Second Injury Fund v. Stephens, 62 Ark. App. 255, 970 S.W.2d 331 (1998)(holding that the \u201cmajor cause\u201d requirement was satisfied by evidence that an injury necessitated performance of surgery and that this surgery, at the site of a previous one, was the reason for the additional 2% impairment rating). We affirm the Commission\u2019s award of permanent partial disability benefits.\nAffirmed.\nRobbins and Baker, JJ., agree.\nWe recognize that the 50% impairment figure differs from the 60% impairment figure mentioned above. The discrepancy, however, was not a basis for appeal.", "type": "majority", "author": "Josephine Linker Hart, Judge." } ], "attorneys": [ "Roberts, Roberts & Russell, P.A., by: Michael Lee Roberts and J.R. Wildman, for appellants.", "Philip M. Wilson, for appellee." ], "corrections": "", "head_matter": "WAL-MART STORES, INC., and Claims Management, Inc. v. Jerrell WESTBROOK\nCA 01-1282\n72 S.W.3d 889\nCourt of Appeals of Arkansas Division IV\nOpinion delivered April 17, 2002\nRoberts, Roberts & Russell, P.A., by: Michael Lee Roberts and J.R. Wildman, for appellants.\nPhilip M. Wilson, for appellee." }, "file_name": "0167-01", "first_page_order": 187, "last_page_order": 193 }