Del Monte Frozen Foods, Inc. v. Harmon

Donald L. Corbin, Judge. Appellant, Del Monte Frozen Foods, Inc., appeals the decision of the Workers’ Compensation Commission which awarded Limmel W. Harmon, cross-appellant and appellee in this case, benefits based on a 70% permanent partial disability rating. Appellant argues on this appeal that the Second Injury Fund, appellee, should bear a portion of the expense of Harmon’s injury due to a prior impairment. We affirm the Commission’s finding on this point. In the cross-appeal, Limmel Harmon, cross-appellant and appellee, appeals the finding of the full Commission which reduced the permanent total disability rating awarded to Harmon by the Administrative Law Judge to 70% permanent partial disability. We affirm the full Commission’s finding on this point as well. On July 15,1982, Harmon sustained an injury consisting of a lumbosacral strain arising out of and occurring in the course of his employment by Del Monte. On July 9, 1954, Harmon sustained a non-compensable fracture of his pelvis while engaged in military service. As a result of the fractured pelvis, Harmon received a permanent disability rating of 10% to the body as a whole. On or about February 21,1963, Harmon was diagnosed as having spondylolisthesis at L5 with left hip pain secondary thereto. On April 18, 1963, surgery was performed to effect a lateral lumbosacral fusion. Following the lumbosacral fusion, Harmon experienced a two-year period during which he remained in a back brace. He was practically asymptomatic from the spondylolisthesis from that time up until the July 15, 1982, lumbosacral strain arising out of his employment at Del Monte. Harmon was relatively asymptomatic from the July 9, 1954, pelvis fracture after 1963. Following the July 15, 1982, compensable injury, Harmon attempted to return to work for Del Monte but was unable to endure extended periods of work activity. He has been advised by his physicians to limit lifting, bending and twisting. He was under no such limitations prior to July 15,1982. As a result of the July 15, 1982, lumbosacral strain, Harmon sustained an actual anatomical impairment of 5% to the body as a whole. The Commission found that the lumbosacral strain aggravated Harmon’s pre-existing condition of spondylolisthesis. The full Commission made the following conclusion in its opinion: Harmon did not have an impairment prior to July 15, 1982, within the meaning of Ark. Stat. Ann. § 81-1313(i) (Supp. 1983) as that statute has been construed by the Arkansas Court of Appeals. See Osage Oil Company v. Rogers, 15 Ark. App. 319, 692 S.W.2d 786 (1985). Harmon is disabled as a result of the July 15, 1982 lumbosacral strain which aggravated his pre-existing back condition. Since his pre-injury condition did not independently operate to affect his ability to work this case does not properly present an issue of apportionment. Rather, the preponderance of the evidence shows that Harmon is disabled from the aggravating effects of the July 15,1982, lumbosacral strain upon his pre-existing and asymptomatic back condition of spondylolisthesis. The issue raised on the appeal by Del Monte Frozen Foods is whether liability for benefits resulting from the disability rating over the 5% attributed to the 1982 Del Monte injury should be the sole and separate responsibility of the Second Injury Fund, hereinafter referred to as “SIF”. In Osage this court held that “impairment” in Ark. Stat. Ann. § 81-1313(i) means loss of earning capacity due to a non-work related condition. Id. at 324, 692 S.W.2d at 789. The question before us is whether Harmon’s pre-existing injuries constituted an “impairment” under Ark. Stat. Ann. § 81-1313(i) (Supp. 1985). On appellate review the evidence and all inferences deducible therefrom must be viewed in the light most favorable to the finding of the Commission. We give the testimony its strongest probative force in favor of the finding of the Commission, whether it favored the claimant or the employer. Id. at 322, 692 S.W.2d at 788. We must affirm if the Commission’s finding is supported by substantial evidence; even when a preponderance of the evidence might indicate a contrary result, we affirm if reasonable minds could reach the Commission’s conclusion. Id. at 322, 692 S.W.2d at 788. Questions of credibility and the weight and sufficiency of the evidence are matters for determination by the Commission. The Commission is better equipped, by specialization and experience, to analyze and translate evidence into findings of fact than we are. Id. at 322, 692 S.W.2d at 788. The evidence in the record illustrates that Harmon did not experience a decrease in his capacity to earn wages as a result of either the congenital condition of spondylolisthesis or the 1954 pelvis fracture. Therefore, we find that there was substantial evidence to support the Commission’s findings that Harmon did not have an “impairment” within the meaning of Ark. Stat. Ann. § 81-1313(i) prior to July 15,1982 and that, under Osage, the SIF is not liable for any of the benefits which are a consequence of the July 15, 1982, injury. We affirm the Commission’s findings on this point. The question raised by Harmon’s cross-appeal is whether Harmon proved by a preponderance of the evidence that he is permanently and totally disabled. Dr. Austin Grimes stated in his April 14, 1983, report that Harmon’s lumbosacral strain should not have increased his permanent anatomical impairment by more than 5% over the pre-employment status. By letter dated September 6, 1983, to Crawford and Company, Dr. Grimes estimated Harmon’s combined permanent partial physical impairment from all sources, including the compensable injury, to be 30% to the body as a whole. Dr. Grimes and Dr. Ted Honghiran concurred that Harmon could return to work but also agreed that he should curtail activities involving lifting, bending, and twisting his back. The evidence indicated that Harmon’s vocational history is that of a manual laborer. He has a fourth grade education. His employment potential lies in work settings that will not require sustained physical exertion that may expose his back to new injury. Harmon testified that he planned to go back to work and stated that he felt he could work a 40-hour week. Based on this evidence the Commission reversed the ruling of the ALJ holding Harmon permanently and totally disabled. The Commission awarded permanent disability benefits of 70% to the body as a whole. Giving the testimony its strongest probative force in favor of the findings of the Commission we find that there was substantial evidence presented to support the Commission’s conclusion. Therefore, we affirm the Commission’s finding on the point raised in the cross-appeal. Affirmed. Mayfield, J., concurs. Cloninger and Glaze, JJ., dissent.