White v Gregg Agricultural Enterprises

• Decision Date: 24 January 2001
• Docket Number: 99-1124
• Citation: 37 S.W.3d 649
• Parties: ALVIN RAY WHITE, APPELLANT V. GREGG AGRICULTURAL ENTERPRISES, APPELLEE. CA 99-1124 Arkansas Supreme Court 24 January 2001 APPEAL FROM THE WORKERS' COMPENSATION COMMISSION, NO. E310658 AFFIRMED Sam Bird, Judge. This appeal is before this court for a second time. Appellee Gregg Agricultural Enterprises (hereinafter Gregg Farms) originally appealed a finding by the Commission that the appellant, Alvin Ray White, was entitled to a permanent anatomical rating of 26 percent. In the first appeal, we held that we could not reach the merits of White's argument because the Commission had failed to make sufficient findings of fact in support of its conclusion. We remanded with directions to the Commission to include an explanation of why it disregarded White's previous injury in Texas and its effect on White's current disability. See Doug Gregg Farms v. Alvin R. White, CA97-1424 slip op., (Ark. App
• Court: Arkansas Court of Appeals

ALVIN RAY WHITE, APPELLANT

V.

GREGG AGRICULTURAL ENTERPRISES, APPELLEE

CA 99-1124

Arkansas Supreme Court

24 January 2001

APPEAL FROM THE WORKERS' COMPENSATION COMMISSION, NO. E310658

AFFIRMED

Sam Bird, Judge.

This appeal is before this court for a second time. Appellee Gregg Agricultural Enterprises (hereinafter Gregg Farms) originally appealed a finding by the Commission that the appellant, Alvin Ray White, was entitled to a permanent anatomical rating of 26 percent. In the first appeal, we held that we could not reach the merits of White's argument because the Commission had failed to make sufficient findings of fact in support of its conclusion. We remanded with directions to the Commission to include an explanation of why it disregarded White's previous injury in Texas and its effect on White's current disability. See Doug Gregg Farms v. Alvin R. White, CA97-1424 slip op., (Ark. App. May 27, 1998). Following our remand, the administrative law judge rendered findings andreached the same result. The law judge found that White's 13 percent impairment to the body as a whole, in combination with his 14 percent loss of cervical range of motion, resulted in a 26 percent disability to the body as a whole. Gregg again appealed to the full Commission. The Commission then considered at length the medical evidence relating to the Texas injury and concluded that White had not proven that he sustained any new loss of cervical motion, instead of the 14 percent, and that he had sustained only an additional 2 percent impairment rating (instead of 13 percent). White brings this appeal.

This case had been the subject of two hearings before the administrative law judge. The first hearing involved only the issues of compensability and temporary total disability. At the hearing on those issues, White testified that his first workers' compensation injury, a pinched nerve in his shoulder, occurred in 1978, while he was working as a heavy-duty mechanic in Texas, and that he suffered another compensable injury to his back in November 1988. The 1988 injury lead to a fusion surgery at C5-6, C6-7 in 1989. White testified that he settled his claim for workers' compensation for approximately $45,000. On cross-examination, he denied being told by his treating physician for the 1988 injury, Dr. Stockton, that he was precluded from returning to work.

White began working part time for Gregg Farms in October 1991, at first on a part-time basis to see if he could handle the work. In February 1992, he began working full time. He testified that the job included a lot of bending and stooping. He said that prior to working for Gregg Farms, he was not having any trouble with his neck nor was he on any medication. On cross-examination, he testified that he saw a doctor approximately eight months before going to work for Gregg Farms. He also stated that he had attempted to see a doctor for follow up from his surgery, but could not get the paperwork from Texas straightened out in order to do so. He said that he began to experience pain, similar to pain he had experienced from his previous injuries, in December 1992, and he would occasionally wear a neck brace, which had been prescribed for him after his neck injury in 1988. He presented to Dr. Foster in April 1993. He stated that Dr. Foster's office billed his Texas compensation carrier for some of the bills. He said he worked at Gregg Farms until approximately two weeks before he had surgery in June 1993. After his surgery, Dr. Foster assigned White a 13 percent impairment rating. White also testified that Dr. Foster considered it to be a new injury. White testified that his fusion surgery was successful, and he returned to light-duty work for Gregg Farms on December 17, 1993, and worked a little more than one month before he was terminated. He applied for temporary total disability and medical benefits from May 25, 1993 through December 17, 1993. Gregg Farms denied all liability.

Doug Gregg, owner of Doug Gregg Farms, testified that when he hired White in late 1991, he was aware of White's back and neck problems. He said that White began to complain about pain in his back and neck shortly after he began working full-time, and that White attributed the pain to a previous injury. He also stated that he remembered White wearing a neck brace shortly after he began working full time, in the spring of 1993. Gregg testified that at no time did White ever report that he had sustained a work-related injury. The first time Gregg realized that White was claiming workers' compensation benefits was when he received a letter from White's attorney. In that letter, White's attorney wrote: "At the time of the injury, Alvin Ray White was working on a truck on a creeperstraining with a bar and injured his back. Copy of the letter from the orthopedic surgeon confirming a compensable injury is attached." The description of the injury matched the injury White received in Texas.

Gregg also testified that after he terminated White for leaving the job without notifying him or their immediate supervisor, White mentioned that he had fallen on the job and that he needed to fill out a workers' compensation form in order to report the injury. Gregg argued that White was not entitled to such benefits because White's injury was a recurrence of a previous injury for which he was compensated under Texas workers' compensation law.

On March 25, 1994, the law judge issued an opinion in that case awarding White temporary total disability from May 25 until December 17, 1993, medical benefits, and attorney's fees.

The law judge wrote:

Claimant testified that he was virtually asymptomatic when he went to work for Gregg and that his disabling condition came on gradually over time. I conclude that this is not a case where claimant remained symptomatic for a period of time following his first surgery and then sustained a recurrence of the initial injury. Dr. Foster's testimony that claimant's permanent impairment has increased by 13 percent is also evidence that claimant sustained anew injury or aggravation causing distinct, new, anatomical deficits rather than a simple recurrence of a previous condition.

Gregg appealed to the full Commission, and White cross-appealed. The Commission affirmed and adopted the law judge's opinion, and this order was not further appealed by either party.

In a subsequent hearing, White sought compensation for permanent disability. At that hearing, the specific issue was whether White was entitled to a permanent anatomical impairment rating, which is the issue of this appeal. Gregg denied liability for any of White's anatomical impairment, arguing that "all anatomical impairment is a result of White's preexisting or prior injury that occurred in 1988."

At that hearing, White testified again to when he began working for Gregg Farms and when his aggravation started. He also testified to the complications experienced after his June 10, 1993, surgery, which included having trouble turning his neck and sitting for a long period of time. He stated that he has continual pain. He stated that despite his problems, he returned to work in June 1994 and is working full time at Micro Plastics in Flippin. On cross-examination, White denied informing one of his doctors that he had been in constant painsince his injury in 1988. White also denied seeing any medical reports that classified him as totally and permanently disabled as a result of the Texas injury.

Dr. Robert Foster testified in a deposition that he first saw White in April 1993. He said White presented to him, complaining of persistent neck pain, headaches, and occasional pain in his arms. Dr. Foster's x-rays of White revealed pseudoarthrosis at C5-6. Dr. Foster attributed the fusion failure at C5-6 to White's smoking and the fact that White underwent two-level fusion surgery, as opposed to a one level.

When asked if the job at Gregg Farms caused White's pseudoarthrosis, Foster replied "No." However, Foster also stated that if he had been White's treating physician in Texas, he would have told White "that if you engage in any type of heavy work or activity, it may become symptomatic enough that you require surgery." He also rated him with a 13 percent impairment rating representing his previous surgeries as well as his previous fusions. He stated that he would not have been able to give him an impairment rating after his surgery in Texas because, at that time, White was not medically maximized in that he did not completely fuse. Hestated that the job at Gregg Farms made White symptomatic in that it caused him more pain, "[h]e had already stated that he had pain." On May 27, 1996, Dr. Foster then included an additional 14 percent rating for loss of range of motion, making a combined anatomical rating of 26 percent.

The administrative law judge issued an opinion stating that White had proven by a preponderance of the evidence that he was entitled to a 26 percent permanent impairment rating as assigned by Dr. Foster. In addition, the law judge found that White had sustained a gradual onset injury while working for Gregg Farms.

Gregg Farms appealed to the full Commission, which affirmed and adopted the findings and the opinion of the law judge. Gregg Farms then appealed to this court, at which time this court remanded the case to the Commission, who in turn remanded it to the administrative law judge to make further findings of fact.

As stated above, upon remand, the administrative law judge again found that White had proven by a preponderance of the evidence that he was entitled to the 26 percent permanent impairment rating as assigned by Dr. Foster. The administrative law judge failed to make findings of factregarding Dr. Stockton's opinion that appellee was permanently and totally disabled due to the failure of the fusion at C5-6.

The Commission reversed the law judge. It agreed that White has experienced a gradual onset injury that...