Chicago Mill & Lumber Co. v. Greer

George Howard, Jr., Judge. On January 17, 1978, claimant-appellee, a 62-year-old black man, with no formal education — claimant cannot even write his name — while in the course of his employment with appellant, was injured when a log fell on his right foot fracturing his ankle. The fracture required surgery involving the insertion of metal screws to repair the injury. Claimant’s left leg was amputated below the knee in 1938 or 1939 as a consequence of an injury for which he received no compensation.1 The Workers’ Compensation Commission, in determining claimant’s permanent disability and the application of Arkansas’ Second Injury Law to such determination, made the following findings of fact: 1. That as a result of the combined effect of the non-job-related amputation of his left leg and the 40 percent impairment to his right leg resulting from the compensable injury of January 17, 1978, the claimant is permanently and totally disabled. 2. That payments from the Second Injury Fund as per Section 13(f)(2)(iii) are not applicable to this claim.2 3. That the non-job-related amputation of the claimant’s left leg below the knee prior to the compensable injury of January 17, 1978, independently produced some degree of disability before the accident and continues to operate as a source of disability after the accident; ;and that the respondent, Chicago Mill & Lumber Company, is entitled to a credit of $10,500.00 under the Rule of Apportionment for the non-job-related amputation of the left leg and is based upon 125 weeks at $84.00 per week. 4. That respondents’ total liability for all weekly compensation benefits to the claim under Finding of Fact No. 3 amounts to $39,500.00 and represents 470.24 weeks at $84.00 per week; and that after respondents have paid weekly benefits which amount of $39,500.00, further benefits due the claimant for total disability shall be paid from the Death and Permanent Total Disability Bank Fund. In explaining the Commission’s posture in fixing the employer’s share at $39,500.00 for claimant’s disability - the Commission apportioned claimant’s share at $10,-500.00 — the Commission stated: “As per Section 10(c)(2) of the Act, the respondent’s total disability for weekly benefits in this case is $50,000.00. The claimant, prior to his compensable injury of January 17, 1978, suffered a non-job-related amputation of his left leg below the knee which would have entitled him to 125 weeks of compensation if the amputation had been the result of a compensable injury. There is no evidence in the record as to when the amputation occurred, or the amount of the claimant’s earnings at the time of the amputation. In view of the lack of evidence concerning this question, we feel that a fair and reasonable method to determine the credit to be given from the prior injury is to base it on the claimant’s earnings at the time of the compensable injury of January 17, 1978. The claimant’s compensation rate for the injury of January 17, 1978, is $84.00 per week, and 125 weeks at $84.00 per week for the amputation of the left leg below the knee will give the respondent, Chicago Mill & Lumber Company, a credit of $10,500.00. “Since the maximum total liability ol the respondent, Chicago Mill & Lumber Company, is $50,000.00, and giving them a credit of $10,500.00, for the non-job-related amputation of the claimant’s left leg, will leave a balance to be paid by the respondent, Chicago Mill & Lumber Company, of $39,500.00 or 470.24 weeks at $84.00 per week.” Appellant argues that the Commission erred in ruling that the second injury fund was not applicable in this proceeding. In Arkansas Workmen’s Compensation Commission v. Sandy, 217 Ark. 821, 233 S.W. 2d 382 (1950), the Arkansas Supreme Court made the following relevant comment in sustaining the Commission’s holding that the claimant was not entitled to payment from the “Second Injury Fund”: “This court has held that the degree of disability suffered by an injured employee is a factual question to be determined from the evidence in the case.” The Supreme Court commented further in Sandy by quoting from the opinion of the Commission: “ ‘This fund, called the ‘Second Injury Fund’, is a limited and restricted fund and is created specifically for the benefit of those employees who are found to be totally and permanently disabled and who strictly comply with the provisions and requirements of § 13(f)(2)(iii). While Workmen’s Compensation Acts are generally to be liberally construed the solvency of this special ‘Second Injury Fund’ requires that the provisions and requirements thereof be fully and strictly complied with. In our opinion, the ‘loss of a member or organ’, or the ‘loss of use of a member or organ’, as is provided for in § 13(f)(2)(iii) means the total loss or total loss of use. To hold otherwise would open this special fund to the point of insolvency and provide no benefit to those who do comply with its provisions and who are entitled to benefits thereunder.’ ” Dr. Harold H. Chakales, claimant’s physician,- submitted a medical report dated October 17, 1978, which reads: “At this time, I feel that Mr. Greer has reached maximum healing and that he carries a physical impairment of approximately 35-40% of the right lower extremity.” Dr. Richard M. Logue, who examined the claimant at the request of the employer, stated in his medical report dated August 18, 1978: “. . . I would anticipate that his disability relating to this injury would be in the magnitude of possibly 15 percent to the right leg below the knee.” The claimant testified with reference to his right leg: “. . . I can’t stand up on it no more, because I tries it . . that he has tried to resume work on three occasions, but was “told to go back home” after working about an hour with his crutches when his foot started swelling and paining; and that his left leg is a wooden leg. Upon this evidence the Commission found that claimant’s impairment to his right leg was 40%, and, accordingly, he has not sustained a total loss of use required under the statute governing the second injury fund. We hold that there is substantial evidence to support the holding of the Commission. Appellant also argues that the Commission “erred by apportioning the specific value of the pre-existing injury ($10,500.00) rather than the effect of the pre-existing injury upon the ultimate liability, $45,800.00.” In other words, appellant is ultimately liable only for the amount of disability attributable to the injury of January 17, 1978 — the 40% impairment of claimant’s right leg, an award of 50 weeks at $84.00 per week or $4,200.00. “Any additional award resulting from the effect of the pre-existing injury and therefore that portion ($45,800.00) should be apportioned.” Under Ark. Stat. Ann. § 81-1310(c)(l)(2) (Repl. 1976), appellant’s total liability for claimant’s permanent total disability3 for weekly benefits is $50,000.00. The Commission, having found that claimant’s pre-existing impairment independently produced some degree of disability before the compensable injury as well as after the injury, concluded that claimant’s pre-existing disability resulting from the non-job-related amputation of his left leg should be apportioned. Inasmuch as there was no evidence in the record specifying the exact date that claimant’s left leg was amputated or the amount of the claimant’s earnings at the time of the amputation, the Commission concluded that a fair and reasonable method for determing the credit to be given for the pre-existing injury was to base the calculation on claimant’s earnings at the time of his compensable injury of January 17, 1978, and apply the schedule for such a member contained in Ark. Stat. Ann. § 81-1313(c). A credit of $10,-500.00 was applied against appellant’s Lability of $50,000.00, thus requiring appellant to pay $39,500.00 or 470.24 weeks at $84.00 per week. At the end of this period, further payments due claimant for his total disability would be made from the Death and Permanent Total Disability Bank Fund. The effect or the contribution of a pre-existing injury, when combined with a present compensable injury resulting in permanent total disability, as in the instant case, is seldom susceptible of exact proof. This determination must be left principally, if not entirely, to the discretionary estimate of the Workers’ Compensation Commission which is endowed with the responsibility to develop the State’s policy in industrial injury cases. Southeastern Construction Company, et al v. Dependent of S. W. Dodson, Deceased, 153 So. 2d 276 (Miss. 1963); Bill Williams Feed Service v. Mangum, 183 So. 2d 917 (Miss. 1966). The question involving a worker’s total disability is to be determined as a question of fact. Eddie McNeely v. Clem Mill & Gin Company et al, 241 Ark. 498, 409 S.W. 2d 502 (1966); Arkansas Workmen’s Compensation Commission v. Sandy, supra. Prior to claimant’s compensable injury on January 17, 1978, claimant was fully employed, engaged in heavy manual labor involving mill work, his job assignment required a considerable amount of standing and walking and it is clear that claimant performed satisfactory service at Chicago Mill over a relatively long period of time in spite of the fact that he had a wooden leg. Indeed, the Commission was free to consider these factors and any inferences derived therefrom in making the apportionment in this case. We are unable to perceive, and the appellant has not demonstrated, any abuse of the Commission’s discretion or manifest errors on the part of the Commission in making the apportionment in this proceeding. Total disability, within the meaning of the Workers’ Compensation Law, does not mean merely functional disability, but includes the varying degrees in each instance, loss of use of the body to earn substantial wages. Glass v. Edens. 233 Ark. 786, 346 S.W. 2d 658 (1961). Balancing of functional factors and loss of use of the body to earn substantial wages is a responsibility of the Commission. Mann v. Potlatch Forrests, 237 Ark. 8, 371 S.W. 2d 9 (1963). The Supreme Court made the following relevant comment in Rooney & Travelers Insurance Co. v. Charles, 262 Ark. 695, 560 S.W. 2d 797 (1978), Justice, now Chief Justice, Fogleman, speaking for the Court: “We have long recognized that the wage-loss factor, i.e., the extent ‘to which a compensable injury has affected a claimant’s ability to earn a livelihood,’ rather than the functional or anatomical loss, is generally controlling in disability determinations, which are to be made by the Workmen’s Compensation Commission on the basis of medical evidence, age, education, experience and other matters reasonably expected to affect the claimant’s earning power. .. .”4 Finally, appellant contends that if the Second Injury Fund is not liable and appellant is required to pay benefits in excess of the scheduled allowance for the 40% impairment to claimant’s right leg, $4,200.00, handicapped employees may be discharged when their employers adjust their work force to miminize their exposure. Appellant’s argument is neither persuasive nor impressive, for studies have established that handicapped workers have a lower accident rate than workers in possession of their full functions. See: Encouragement of Employment of the Handicapped, 8 Vand. L. Rev. 575 (1955). Moreover, emphasis is now placed on the rehabilitation of employees who have sustained permanent disability in industrial accidents. Rehabilitation Within The Worker's Compensation Framework, 19 Rutgers Law Review 401 (1965). Arkansas’s Rehabilitation Law, Ark. Stat. Ann. § 81-1310(f) is perhaps one of the most objective pieces of legislation designed to cope with the problems involving disabled or handicapped employees. Moreover, the history of claimant’s performance as an employee, over the years, as well as Chicago Mill’s conduct after claimant was discharged by his physician, refutes appellant’s argument. After claimant had reached the maximum healing period, appellant returned claimant to his former work assignment even though claimant was even more handicapped than before. It is clear that claimant was a dependable, conscientious and dedicated employee. To limit claimant’s recovery can likewise cast a deleterious effect on the efforts of the Commission and employers alike endeavoring to promote the rehabilitation of the handicapped. Needless to say, a reversal of the Commission in this case will have the effect of penalizing a handicapped employee who has sought to improve himself economically without relying solely on social agencies for assistance. Indeed, society’s attitude and thinking about the handicapped in 1980 is more humane and realistic than it was fifty years ago. Affirmed. Wright, C.J., and Hays and Newbern, JJ., dissent. Claimant’s affidavit dated May 31, 1979, states: “ T was cutting timber for the Shannon Brothers in Mississippi around 1938 or 1939, when a tree fell on my left leg and crushed it. I did not receive any compensation for same; I even had to pay my own medical bills.’ ” 2Ark. Stat. Ann. § 81-1313(f)(2)(iii) provides: (f) Second injury: In cases of permanent disability arising from a subsequent accident, where a permanent disability existed prior thereto: (2) If an employee has a prior permanent total disability not occasioned by an injury resulting while in the employ of the same employer in whose employ he received a subsequent permanent injury, the amount of compensation for the subsequent injury shall be fixed as follows: iii. If an employee who had previously incurred permanent partial disability through the loss of one [1] hand, one [1] arm, one [1] foot, one [1] leg, or one [1] eye, incurs permanent total disability through the total loss of another member, enumerated in this sentence, he shall be paid, in addition to the compensation for permanent partial disability provided in Section 13(c) (subsection (c) of this section), additional compensation during the continuance of such total disability at the rate prescribed in Section 10 [§ 81-1310] of this Act applied at the time of the accident which produced the total permanent disability. It has been conceded by the parties in this proceeding that claimant is totally and permanently disabled. As a direct consequence of claimant’s compensable injury of January 17, 1978, his earning capacity was reduced from 100% to zero.