Dacus Casket Co. v. Hardy

Frank Holt, Justice. This is a workmen’s compensation case. Appellee fell and sustained a compensable back injury on January 26, 1968, while lifting a casket. After a spinal disc operation, she returned to work on June 24, 1968, and on February 6, 1969, sustained a second injury by a fall. A referee determined that as a result of the first injury, appellee had sustained a 15% permanent partial impairment of the body as a whole and that her second injury did not result in any permanent disability. On appeal the full commission increased the award for the first injury to 25% permanent partial disability to the body as a whole, and also awarded 10% permanent partial disability to the body as a whole as a result of the second injury. The circuit court affirmed the commission and from that adverse ruling comes this appeal. For reversal the only issue presented questions the sufficiency of the evidence to support the commission’s findings. Appellant argues that the commission completely ignored the basis of the referee’s finding, based upon the medical evidence that appellee’s permanent partial disability was only 15%, and that no competent testimony, except her own, was offered to support a finding of greater disability. We reiterate our well-established rule that in a workmen’s compensation case, the findings of the referee are without significance on appeal to the circuit court or to this court. Lane Poultry Farms v. Wagoner, 248 Ark. 661, 453 S. W. 2d 43; Moss v. El Dorado Drilling Co., 237 Ark. 80, 371 S. W. 2d 528 (1963). Also, we have often said that the degree of disputed disability incurred by a claimant as a result of an injury is a question of fact to be determined by the commission and we will affirm its finding if there is any substantial evidence to support it. Potlatch Forest, Inc. v. Smith, 237 Ark. 468, 374 S. W. 2d 166 (1964); Pearson v. Faulkner Radio Serv. Co., 220 Ark. 368, 247 S. W. 2d 964 (1952). We thus review the evidence. Appellant concedes that appellee incurred a 15% permanent partial disability as a result of the first injury. However, it asserts that after the first injury, appellee returned to work and accomplished her tasks until her second fall which resulted in an injury temporary in nature and totally unrelated to the original injury. Dr. Canale testified to having seen appellee on February 15, 1968, for the injury she had received on January 26, 1968, and diagnosing her injury as a herniated L-5 disc. He performed an operation and removed the disc. He recommended that appellee should not return to work until June 22, 1968, and that upon her return she should not perform work requiring her to lift over 35 to 40 pounds. He did not see appellee after June 6 until the first of July when she again visited his office, after returning to her work, and complained of- low back pain. He recommended that she continue to work. Dr. Canale next saw appellee after her second injury. He stated that in his opinion appellee had a lumbosacral strain as the result of her second fall, but that she had not suffered any additional permanent disability. However, he also testified to having written a letter to Dr. Deneke (appellee’s treating physician subsequent to her second injury) recommending-that appellee give up her present employment since it was causing her difficulty. Dr. Deneke stated in a report to the Arkansas Rehabilitation Service that appellee should avoid walking, standing, pushing and pulling; and that she should be trained for work which could be accomplished “in a sitting position” and should not engage in an occupation requiring standing for a whole work period. Dr. Deneke, along with Dr. Tooms (another examining orthopedic specialist), felt that appellee had a 10-15% permanent partial disability based on her first injury and none on her second one. The three doctors appear to agree about appellee’s inability to continue her previous employment with appellant as a result of her second injury. Appellee is 45 years of age, has completed one-half of the ninth grade, and is without any special training. At the time of both injuries, she sewed linings in caskets for the appellant. This job required her to reach, bend, walk, stoop, and to lift the foot part of caskets. After her first injury she returned to this work for approximately seven months, missing only six and three-quarter days which included days she saw a doctor. About a month after the second injury she again returned to this work. Her back hurt her so much, however, that she was irregular in her work attendance. About two months after appellee returned to her work, appellant terminated her employment because of sporadic absenteeism. It appears that some of- the days she missed (1214 in two months) “were days when she was hospitalized” or undergoing a doctor’s examination. Since then she has been unable to find-other work. Her other work history consists of being a waitress-and shoe store clerk. She applied for a position which was available through the Employment Security Division but was advised by Dr. Deneke not to take it because the position involved stooping, lifting, bending, and standing. , We have held that permanent partial disability can consist of functional disability or loss in earning capacity or a combination of both. Wilson & Co. v. Christman, 244 Ark. 132, 424 S. W. 2d 863 (1968). There we said: “The opinions of attending physicians and medical experts are admissible as competent evidence when properly presented in a compensation case, but such opinions are not conclusive. They are only to be considered by the commission along with all other competent evidence, medical and otherwise, in arriving at the degree of permanent partial disability in a compensation case. Appellant argues that there is no evidence to sustain the commission’s award of 60% permanent partial disability. It is true that no one testified that claimant has a 60% permanent partial disability. Neither did any witness, including the appellee’s own testimony, fix his partial disability at 50% or 70%, but there is substantial evidence in the record that appellee has suffered a disability both in the loss of use of his body as a whole, and in loss of capacity to earn in the same or any other employment, the same wages he was receiving at the time of the injury.” In that case 30% was the highest amount of permanent partial disability that existed, according to the medical evidence; however, we affirmed the commission’s award of 60%. Likewise, in the case at bar the medical evidence would limit appellee’s recovery to 15%; however, the commission awarded a total of 35% permanent partial disability as a result of the two injuries. Following the second injury the doctors advised that appellee would be restricted on the labor market to performing tasks only in a sitting position. Dr. Deneke testified: “* * * she made an honest effort to work, and I felt like that it was proper to recommend that she not continue in this capacity that she was working under at the Dacus Casket Company and recommended that she seek help from the Vocational Rehabilitation Service to learn a new trade and secure a job that would enable her to work in a sitting position rather than in a standing position lifting ten to fifteen pounds of weight in a position that necessitated her back to be in a flexed position.” Following her second injury appellee applied to Vocational Rehabilitation but that agency did not have any available position allowing her to work in a sitting position. Appellee testified that she sought work with a former employer who had a cashier’s position open but was unacceptable because of her condition. She was refused work as a shoe clerk when the manager received a doctor’s report about her limited physical condition. Appellee also testified that after the second injury she had unsuccessfully tried to sew. She takes pain and sleeping pills provided by Dr. Deneke to alleviate her back pain; otherwise, she can only sleep two to three hours. Her dependent children do her housework. The question presented in this case is one of credibility and, thus, a matter within the exclusive province of the commission. Kivett v. Redmond Co., 234 Ark. 855, 355 S. W. 2d 172 (1962). The commission reviewed the testimony adduced by the appellant and the appellee, and evaluated the conflicting evidence. Its finding has the same verity as that of a jury. Appellant’s attack upon appellee’s testimony as to the extent of her injuries, being in excess of the medical testimony, and her attempts to obtain employment, even if uncorroborated, is pertinent only to appellee’s credibility. In the case at bar the appellee suffered two separate injuries in the employment of the-same employer. After the first injury she returned to work for about seven months and apparently performed he-r duties satisfactorily. After the second injury she was terminated a short tíme after returning to work because of sporadic absenteeism occasioned by the disabling effects of this injury. She was then restricted by her doctors to work that could be performed only in a sitting position. Further, she was handicapped by her age, lack of education, and limited work experience. As in Christman, her former employers and prospective employers refused her employment due to doctors’ reports. Certainly it must be said that when we view the evidence most favorably to the commission’s finding, as we must do, and then apply the long-established substantial evidence rule, the total award of 35% to the claimant for both injuries is justified. In the circumstances, we deem it unnecessary, and think it only academic, that we approve the allocation of a separate percentage of disability to either injury. Affirmed. Fogleman and Jones, JJ., dissent.