{
  "id": 6138911,
  "name": "Milton TAYLOR v. PFEIFFER PLUMBING & HEATING CO. and AETNA CASUALTY & SURETY",
  "name_abbreviation": "Taylor v. Pfeiffer Plumbing & Heating Co.",
  "decision_date": "1983-04-13",
  "docket_number": "CA 82-482",
  "first_page": "144",
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  "last_updated": "2023-07-14T19:35:48.973709+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
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  "casebody": {
    "judges": [],
    "parties": [
      "Milton TAYLOR v. PFEIFFER PLUMBING & HEATING CO. and AETNA CASUALTY & SURETY"
    ],
    "opinions": [
      {
        "text": "Tom Glaze, Judge.\nIn this workers\u2019 compensation case, the appellant suffered a compensable injury on November 5, 1979, while working under a truck when its transmission fell on his left shoulder and chest. The primary question in this appeal is whether appellant sustained an injury scheduled under Ark. Stat. Ann. \u00a7 81-1313 (c) (1), (22) (Repl. 1976), or whether the injury should be apportioned to the body as a whole under \u00a7 81-1313 (d). The Commission affirmed the Administrative Law Judge\u2019s decision that appellant sustained a scheduled injury, finding the impairment was related to the arm and did not produce a permanent and total disability. We reverse.\nThe Administrative Law Judge\u2019s decision appears to have been based upon the medical evaluation and opinions of Dr. Joe K. Lester. On November 22, 1980, Lester wrote that as a result of appellant\u2019s injury, he sustained a 10% permanent physical impairment to his left upper extremity. On December 1,1981, Lester reported appellant would have problems at or above the shoulder level and related his physical impairment to his upper extremity and \u201cnot to the body as a whole.\u201d Again, on April 20,1982, Lester indicated he found no permanent physical impairment, except that which he previously indicated appellant had to his arm. This final report by Lester was in response to the Judge\u2019s request for the Doctor to either confirm or revise his previous conclusion that appellant sustained a scheduled injury. In making the request, the Judge indicated the injury was scheduled if it caused impairment below the shoulder. He defined shoulder as the junction of the arm and the trunk.\nWhile we have no problem with the Judge\u2019s definition of shoulder, we cannot agree that appellant\u2019s shoulder injury falls within the list of scheduled injuries in Ark. Stat. Ann. \u00a7 81-1313 (c) (Repl. 1976).\nThe Judge and Commission found appellant\u2019s injury scheduled under Ark. Stat. Ann. \u00a7 81-1313 (c) (1), which provides:\n(1) Arm amputated at the elbow, or between the elbow and shoulder, two hundred (200) weeks. (Emphasis supplied).\nIn reviewing the language contained in \u00a7 81 -1313 (c)(1), we keep in mind that Arkansas law requires that an injury scheduled under \u00a7 81-1313 (c) cannot be apportioned to the body as a whole in determining the extent of permanent partial disability as distinguished from permanent total disability. Haygood v. Belcher, 5 Ark. App. 127, 633 S.W.2d 391 (1982); Anchor Construction Co. v. Rice, 252 Ark. 460, 479 S.W.2d 573 (1972); and Moyers Brothers v. Poe, 249 Ark. 984, 462 S.W.2d 862 (1971). Thus, the rule in Arkansas is that a claimant sustaining a scheduled injury is limited to the applicable allowances set forth in \u00a7 81-1313 (c) and such benefits cannot be increased by considering wage loss factors absent a finding of permanent total disability. See Haygood v. Belcher, supra.\nThe test of whether appellant\u2019s shoulder injury falls within \u00a7 81-1313 (c) (1), (22) is primarily a question of law and has nothing to do with whether a doctor relates the effects of the injury to the arm. Shoulder is defined as that region where the scapula (shoulder blade) meets the clavicle (collar bone) and the humerus (the bone of the upper arm). 3 Schmidt\u2019s Attorneys\u2019 Dictionary of Medicine S-17 (1979);sce also, Stedman\u2019s Medical Dictionary (5th ed. 1982). In the instant case, the medical evidence showed conclusively that appellant sustained an injury to his left shoulder \u2014 not one between the shoulder and the arm. Dr. Lester\u2019s examination showed crepitus in appellant\u2019s left shoulder joint on active and passive motion which was consistent with degenerative changes in the rotator cuff mechanism in his shoulder. These changes were related to the injury. The rotator cuff is that structure consisting of muscle and tendon fibers blending with and thus strengthening the upper half of the shoulder joint. 3 Schmidt\u2019s Attorneys\u2019 Dictionary of Medicine R-87 (1979). As noted earlier, Lester also specifically mentioned appellant would have problems at or above the shoulder level.\nIn sum, the evidence undisputedly shows that appellant\u2019s injury was to his left shoulder. Even if the effects of the shoulder injury extended into his arm (between the elbow and shoulder), this fact would not make the injury a scheduled one. Appellant\u2019s shoulder impairment is clearly an unscheduled injury which should have been apportioned to the body as a whole pursuant to Ark. Stat. Ann. \u00a7 81-1313 (d). Accord McCarty v. Campbell Plumbing Co., 234 So.2d 895 (Ala. Civ. App. 1910); Jewell v. Wood, 130 So.2d 277 (Fla. 1961); Haggard v. Snyder Construction Co., 479 S.W.2d 142 (Mo. Ct. App. 1972).\nTherefore, we reverse and remand this cause to the Commission so that appellant\u2019s impairment can be apportioned correctly under \u00a7 81-1313 (d) and benefits can be redetermined accordingly.\nReversed and remanded.\nAlthough not binding on this Court, appellant cites three prior Commission decisions which held that the shoulder was a part of the unscheduled trunk of the body and not a scheduled member. Ruston v. M&S Lumber Company, WCC Claim No. 613480 (November 30, 1978); King v. Prescolite, WCC Claim No. 448501 (October 16, 1975); and Smith v. Johnson Timber Company, WCC Claim No. 149175 (January 23, 1974).",
        "type": "majority",
        "author": "Tom Glaze, Judge."
      }
    ],
    "attorneys": [
      "J. Fred Jones, for appellant.",
      "Friday, Eldredge ir Clark, by: Donald H. Bacon, for appellees."
    ],
    "corrections": "",
    "head_matter": "Milton TAYLOR v. PFEIFFER PLUMBING & HEATING CO. and AETNA CASUALTY & SURETY\nCA 82-482\n648 S.W.2d 526\nCourt of Appeals of Arkansas\nOpinion delivered April 13, 1983\nJ. Fred Jones, for appellant.\nFriday, Eldredge ir Clark, by: Donald H. Bacon, for appellees."
  },
  "file_name": "0144-01",
  "first_page_order": 164,
  "last_page_order": 167
}