Sunbeam Corp. v. Bates , 271 Ark. 385 ( 1980 )

James H. Pilkinton, Judge.

This is a workers’ compensation case. The issue is the extent of appellee’s disability. At the hearing below it was stipulated that appellee had sustained a compensable injury on or about March 18, 1977, and was entitled to the maximum weekly benefit of $84.00. Temporary total disability was paid until May, 1977. After May, 1977, appellant paid additional permanent disability benefits. until June 12, 1979, the date of the hearing, based upon a permanent disability rating of 15% to the body as a whole, which appellant insisted was correct.

Appellee contends that he had sustained compensable injuries while working for appellant in 1972 and in 1975; and again finally on March 18, 1977. The last injury required back surgery. Appellee claimed that he had not returned to work since March 18, 1977, due to the injuries. He claimed that additional benefits were due.

Appellant has controverted payment of any permanent disability benefits over 15% to the body as a whole.

The administrative law judge found, among other things, that appellee is totally disabled. The Arkansas Workers’ Compensation Commission adopted and affirmed the opinion of the administrative law judge. The Commission determined that the healing period ended on October 2, 1978, and entered an award directing payment of weekly benefits from that date forward as long as appellee remains totally disabled. Appellant has appealed to this court from the findings and award of the Commission.

Appellant contends there is no substantial evidence to support an award in excess of 15% to the body as a whole. Under the principles of the Workers’ Compensation law as explained by this court and the Arkansas Supreme Court on many occasions, the decision of the Workers’ Compensation Commission must stand if supported by substantial evidence. The findings of fact made by the Commission are given the same standing as a jury verdict. Barksdale Lumber Company v. McAnally, 262 Ark. 379, 557 S.W. 2d 868 (1977).

Appellee testified that he was forty-four years of age, married and had two children living at home. It is undisputed that appellee had an eighth grade education, and no vocational training. He had started working for the appellant in 1967. Prior to that time, he had worked as a farm laborer, as a tractor operator for the highway department, as a plumber’s helper, and as a leather cutter. Appellee further testified that since going to work for the appellant company in 1967, he had performed nearly every job in the factory. He testified that he first injured his lower back in 1972 and was treated by Dr. Robinson in Dumas. He testified that he hurt his back again in 1975 and that time was treated not only by Dr. Robinson but also by Dr. Sam Thompson in Little Rock. It is undisputed that claimant injured his back again on March 18, 1977.

According to the evidence, appellee had not received any injury other than those sustained while working for the appellant. Subsequent to his injury in March, 1977, he had surgery performed by Dr. Robert Dickins and remained under his care as of the date of the hearing. According to appellee his back still gave him trouble and he had difficulty sleeping but was able to get along without medication.

Appellee testified that he had attempted to return to work for appellant in December of 1978. According to his testimony he saw the personnel manager, Ms. Margie Poole, who apparently had all of the doctors’ reports on the claimant at the time. Appellee says that Ms. Poole did not put him to work but told him she would let him know something in a few days. Appellee testified that he had not had any word from the company since his conversation with the personnel manager, although on more than one occasion he has talked with Ms. Poole in regard to the payment of bills and weekly benefits. Appellee candidly admitted that if the firm had a job which it would allow him to undertake, he would go back immediately.

The appellee testified that he had attempted to find work at other places. He said that he had made applications at the unemployment office in Dumas, at Curt’s Auto Parts Store, T. A. Edwards Trucking Company, the Piggly Wiggly store, Richard Powell’s One Stop, and at the Catfish Kitchen. Appellee said that he had lived in the Dumas area for twelve years but had been reared sixteen miles east of Dumas at a town called Watson. He stated that he knew the people in the area and they knew him. He had been unsuccessful in his efforts to find work in the area. The record shows that he had even talked to a friend of twenty years about a job at a car lot, but this friend also would not hire him. In addition to the appellee’s efforts to obtain employment at most available sources in the area, the record shows that appellant employed the Southern Rehabilitation Service to attempt to rehabilitate the appellee. The record shows that appellee went to Little Rock in December of 1978 and took tests, and in January of 1979 he was contacted at Dumas by a representative of the Southern Rehabilitation Service. He has had no further contact whatsoever from Southern Rehabilitation Service since January of 1979.

A review of the medical records in this case indicates that the appellee has a long-standing back problem which originated as a compensable injury while working for the appellant. The problems he has had since that time have all been related to his employment with the appellant. His testimony indicates that he would be working for appellant right now if appellant would allow him to return. The unexplained refusal by appellant to allow appellee to return to work is inconsistent with its position that he is only 15% disabled. The record is clear and undisputed that appellee has made a good faith effort to find employment in a somewhat rural area. Thus far, all of his attempts to find employment have been unsuccessful and, as far as this record shows, the efforts of the Southern Rehabilitation Service employed by appellee have been abandoned. We find that there is substantial evidence to support the Commission’s finding that the appellee is, in fact, totally disabled as a direct result of the injuries he has sustained at the appellant plant. It follows, of course, that appellee is entitled to be compensated for total disability benefits until such time as his total disability ceases. As a result of these industrial injuries, appellee has been placed in a rural labor market with very limited education, at forty-five years of age with three back injuries which have resulted in surgery and a permanent impairment rating of 15% to the body as a whole. The consequence of this situation is apparent. The appellee cannot secure employment. This case is governed by Ark. Stat. Ann. § 81-1313 (a) (Repl. 1976). The pertinent provisions reads as follows:

(a) Total Disability. In case of total disability, there shall be paid to the injured employee during the continuance of such total disability 66-2/3 of his average weekly wage. . ..

The term “disability” is defined in Ark. Stat. Ann. § 81-1302(e) as follows:

(e) ‘Disability’ means incapacity because of injury to earn, in the same or any other employment, the wages which the employee was receiving at the time of the injury.

The plain meaning of the language quoted above is that if the appellee is totally incapacitated to earn in the same or any other employment the wages he was receiving at the time of his injury, then he is entitled to receive weekly benefits “during the continuance of such total disability”.

By making this award, the Commission hoped that the appellee’s disability is not permanent and that he will eventually remain an employment status. That, however, remains to be seen.

Since the decision and award of the Arkansas Workers’ Compensation Commission is supported by substantial evidence, it is our duty to affirm.

Newburn, J., dissents.