Arkansas Best Freight System, Inc. v. Brooks

• Decision Date: 26 February 1968
• Docket Number: No. 5--4449,5--4449
• Citation: 244 Ark. 191,424 S.W.2d 377
• Parties: ARKANSAS BEST FREIGHT SYSTEM, INC., Appellant, v. Walter BROOKS, Appellee.
• Court: Arkansas Supreme Court

Page 377

424 S.W.2d 377

244 Ark. 191

ARKANSAS BEST FREIGHT SYSTEM, INC., Appellant, v. Walter BROOKS, Appellee.

No. 5--4449.

Supreme Court of Arkansas.

Feb. 26, 1968.

Harper, Young, Durden & Smith, Ft. Smith, for appellant.

Shaw, Jones & Shaw, Ft. Smith, for appellee.

BROWN, Justice.

The trial court affirmed a finding of the Workmen's Compensation Commission that appellee, Walter Brooks, was totally disabled. The employer-appellant, Arkansas Best Freight System, Inc., controverted any disability in excess of fifty per cent to the body as a whole, that being the highest medical disability in evidence. Appellant contends there is not sufficient competent evidence to warrant an award based on total and permanent disability. The attorney's fee is also questioned.

On the issue of degree of disability we shall examine the facts in the light most favorable to the Commission's findings. Brooks was fifty-two years old at the time of the accident. He attended school some two or three years and thinks he 'made it through the second grade.' For thirty-six years he had been a truck driver, sixteen years for ABF. He sustained injuries in an accident on February 28, 1962, while operating a tractor-trailer unit. Principally the lower back and neck were injured. Because of the injuries he was able to work only intermittently under medication from the time of the accident until late in October. Surgery was performed in early November. The vertebral laminae one one side were removed; because of the 'hour-glass constriction' at the L--3 and L--4 interspaces it was performed bilaterally; a reptured intervertebral disc at the right L--4 interspace was removed, as well as the disc at L--3. His medical and hospital expenses have been approximately $3000. While he was under therapy after the operation he was advised by the doctor to try driving. He went out on a few runs for ABF but stated that the pain was unbearable even under medication. Since those experiences he has not been able to do any physical labor. He tried to run a power lawnmower in the summer of 1966 but was unable to do so. In early 1967, he testified, he lifted his granddaughter, who weighed about seventeen pounds, and the strain placed him in traction. He says he is presently unable to drive his own car. He has been on medication continuously since the accident. A few hours in a sitting position causes pain and causes the right leg to go to sleep. Bed rest is required twice daily. Brooks and two other truck drivers of long experience described the usual duties of truck transport operators. Besides actual driving they load and unload freight at terminals along their route; they change trailers, which involves rolling 'the dolly wheels down and get the pin open on the fifth wheel'; sometimes it is a two-man job; the turning of corners with a heavy load requires substantial physical exertion; some trips take up to fifteen hours, including driving, loading, and unloading.

Two surgeona, one an orthopedic and the other a neurological surgeon, estimated Brooks' disability. The latter performed Brooks' surgery. He estimated Brooks' disability to be 25 per cent to 30 per cent to the body as a whole and stated that the disability prevented claimant from driving a transport truck and performing the incidental duties. As to functional disability the orthopedist assessed 25 per cent and estimated 'that for additional matters this might be doubled to 50%.' The additional disability was described as 'psychophysiological,' a term used to describe a reaction by the patient based on both his emotional and physical state. The doctor found no evidence of malingering. He was further of the opinion that Brooks would be running a risk if he lifted...