Hubbard v. Riceland Foods

Cite as 2017 Ark. App. 135

ARKANSAS COURT OF APPEALS
DIVISION I
No. CV-16-749

Opinion Delivered: March 8, 2017
JAMES HUBBARD
APPELLANT

V. APPEAL FROM THE ARKANSAS
WORKERS’ COMPENSATION
RICELAND FOODS, LIBERTY COMMISSION
MUTUAL INSURANCE COMPANY, [NO. F501447]
DEATH & PERMANENT TOTAL
DISABILITY TRUST FUND
APPELLEES
AFFIRMED

BART F. VIRDEN, Judge

Appellant James Hubbard was working for appellee Riceland Foods on March 16,

2004, when he sustained compensable injuries to his right shoulder and neck. 1 In September

2015, an administrative law judge (ALJ) found that Hubbard was permanently and totally

disabled. The Arkansas Workers’ Compensation Commission (Commission) reversed that

decision and determined that Hubbard had sustained 50 percent wage-loss disability.

Hubbard argues on appeal that the Commission’s decision is not supported by substantial

evidence and that the Commission erred as a matter of law by requiring him to have a

physician’s opinion that he was permanently and totally disabled in order to sustain his

burden of proof. We affirm.

In November 2008, an ALJ found that Hubbard had also proved that he sustained a
1

compensable neck injury and that surgery was reasonable and necessary. The Commission
affirmed and adopted the ALJ’s decision.
Cite as 2017 Ark. App. 135

I. Hearing

A. Hubbard’s Testimony

At a hearing in July 2015, Hubbard testified that he was seventy-three years old, that

he had finished the sixth grade in school and did not read or write well, and that he had

worked “odd jobs” after leaving school. He stated that he had picked and chopped cotton,

cut wood, dug holes for septic tanks, and mowed lawns. He later threw logs at a sawmill

and stacked lumber. He went to work for Riceland in the early 1960s. He was laid off from

Riceland for a couple of years during which time he worked at a paper mill. Hubbard then

returned to Riceland. He testified that he had worked there for nearly forty years. He said

that he began working in the packaging department; he was later moved to shipping and

receiving; and then he was moved to the scale floor where he had started moving pipes. He

said that his job was to physically move big round pipes that “looked like [they] weighed

about 3,000 or 4,000 pounds.” He said that the rice would go through the pipes and that

he directed it for loading into a truck, a railcar, or a bin. Hubbard said he worked sixty-five

to eighty hours per week. He said that in 1997 he injured his left foot and ankle when he

had strained to pull a pipe, that he still has problems with the foot, and that he wears special

boots to protect his ankle.

According to Hubbard, on March 16, 2004, he overstrained while pulling a pipe and

felt “a shocking pain” down his right arm from his neck and shoulder. He reported the

injury and worked with assistance until June 29, 2004, when he turned sixty-two years old,

retired, and began drawing Social Security benefits and pension payments. Hubbard said

2
Cite as 2017 Ark. App. 135

that he would still be working at Riceland today but could no longer work there because

of his injuries. He said, “I don’t know of any job I’ve held in my lifetime that I would be

physically able to do right now.”

Hubbard testified that he had surgeries on his neck, elbow, and wrist and fingers. He

agreed that at a deposition in March 2008 he testified that the surgeries had improved the

use of his hand and that his neck had gotten better. He agreed that, according to his

deposition, he had said that he had no problems other than his neck was “a little stiff.”

Hubbard testified that he had a ten-pound lifting restriction after his neck surgery.

Hubbard said that he had had diabetes for thirty years, high blood pressure, and some

cholesterol issues. He also had cataract surgery not long ago. Hubbard was wearing a neck

brace at the hearing and stated that he wore it off and on during the day and that he had to

be careful how he turned his neck. He stated that he could drive a vehicle but that he had

to turn his entire upper body to look out the window. He displayed his right hand—a fist

that he had difficulty opening completely. Hubbard stated that he had received therapy for

his hand and had chosen on his own to wear a hand brace. He denied having had problems

with his right hand since he was a young boy and did not know why his therapist would

have written that in his records. He also denied having had any other injuries since 2004

but was confronted with records from Jefferson Comprehensive Care System, Inc., showing

that he had been involved in a motor-vehicle accident in April 2009, that he had complained

of neck and back pain, and that he had follow-up visits from April through August “just [to]

mak[e] sure there wasn’t nothing wrong with [him].”

3
Cite as 2017 Ark. App. 135

In describing an average day, Hubbard said that he got up early to take his

medications, that he watched television in the morning, and that friends sometimes came

by to check on him, feed his dogs, or help him with his lawn. He said that his niece lives

with him and that she does the cooking and cleaning. Hubbard agreed that he did not wear

a neck brace to his deposition in March 2008 and that he had testified that he was mowing

his own yard, cooking and cleaning, driving, and living by himself.

Hubbard testified that he had not looked for work in any capacity since he left

Riceland and had not returned to Riceland to see whether the company had work for him.

B. Medical Records

On March 16, 2004, Hubbard sought treatment at Stuttgart Regional Clinic and was

assessed with right-shoulder strain. He was released the same day to restricted-duty work.

Hubbard began experiencing problems with his right arm and hand in late March 2004 and

followed up with several doctors at the clinic. At a follow-up visit in April 2004, Hubbard

was restricted to left-hand work only. In May 2004, Hubbard was pulling a lever to release

rice with his left hand and pulled his left shoulder. An EMG/nerve-conduction study in

May 2004 was abnormal, and it was recommended that he have a full neurological

consultation and testing.

A nerve-conduction study in April 2007 was also abnormal. It was noted that

Hubbard complained of right-arm weakness that had progressed to his left arm. Hubbard

saw Dr. Reza Shahim at Neurological Surgery Associates in August 2007. On August 31,

2007, Dr. Shahim performed “1. Cervical laminectomy extending from C4 through C7

with decompression C3, 4, 5, 6, and 7. 2. Bilateral foraminotomies. 3. Lateral mass plating

4
Cite as 2017 Ark. App. 135

at C3-4 with posterior inner facet fusion at C3-4.” In January 2008, Dr. Shahim reported

that Hubbard was getting better and released him.

In November 2008, Dr. Shahim reported that “[Hubbard] could undergo

decompression of a median nerve and ulnar nerve, but I’m not sure if that is going to help

him with his hand function at this point. . . . His neck and shoulder symptoms are stable.”

In January 2009, Dr. David Rhodes performed “1. Right volar wrist flexor tendon

tenosynovectomy with median nerve decompression of the wrist. 2. Right ulnar nerve

decompression at the elbow. 3. Adjacent tissue transfer of the flexor carpi ulnaris to fill a

soft tissue defect measuring 4 cm2.”

In September 2009, Dr. Shahim reported that Hubbard complained of right-hand

weakness, had right-hand claw deformity, and continued to have neck and shoulder

symptoms. In January 2010, Hubbard saw Dr. Rhodes, who noted that “he has

improvement, however, the right long finger is continuing to be flexed.” In February 2010,

Hubbard underwent surgery—a right-hand flexure contracture release. In June 2010, Dr.

Rhodes noted that Hubbard had said that he was “much improved from his surgeries,” and

Dr. Rhodes released him. The parties agreed that Hubbard reached maximum medical

improvement (MMI) on June 9, 2010.

In February 2012, Hubbard saw Dr. Shahim, who reported that

[Hubbard] is doing fairly well. He does complain of some aches and pains in the
posterior cervical spine. He says his symptoms have been very stable. He denies any
new pain or any change in any pain pattern. He has had right arm weakness and right
hand deformity, which has also been stable.

Dr. Rhodes saw Hubbard in March 2012 and noted that Hubbard had reported

improvement after his hand surgery. Dr. Shahim reported in October 2012 that
5
Cite as 2017 Ark. App. 135

The patient has neck and shoulder pain. He has received prior cervical
decompression. He has had significant improvement in his symptoms. He says his
neck and shoulder symptoms are not very severe at this point. He has right hand
deformity that is stable. He says after ulnar decompression and release in his hand,
that his hand has improved. He says his neck and shoulder symptoms are mild and
the headaches are very mild and not very severe at this point.

On June 4, 2014, Dr. Shahim assigned a 13 percent permanent impairment to the

body as a whole.

II. Permanent & Total Disability and Wage Loss

“Permanent total disability” means inability, because of compensable injury or

occupational disease, to earn any meaningful wages in the same or other employment. Ark.

Code Ann. § 11-9-519(e)(1) (Supp. 2015). The burden of proof shall be on the employee

to prove inability to earn any meaningful wage in the same or other employment. Ark.

Code Ann. § 11-9-519(e)(2).

When a claimant has been assigned an anatomical impairment rating to the body as

a whole, the Commission has the authority to increase the disability rating, and it can find

a claimant totally and permanently disabled based on wage-loss factors. Milton v. K-Tops

Plastic Mfg. Co., 2012 Ark. App. 175, 392 S.W.3d 364. The wage-loss factor is the extent

to which a compensable injury has affected the claimant’s ability to earn a livelihood. Id.

The Commission is charged with the duty of determining disability based on a consideration

of medical evidence and other matters affecting wage loss, such as the claimant’s age,

education, and work experience. Id. In considering factors that may affect an employee’s

future earning capacity, the court considers the claimant’s motivation to return to work,

since a lack of interest or a negative attitude impedes our assessment of the claimant’s loss of

earning capacity. Id.
6
Cite as 2017 Ark. App. 135

III. Commission’s Decision

While the ALJ determined that Hubbard had sustained his burden of proving that he

was permanently and totally disabled, the Commission reversed, finding that

the claimant did not prove by a preponderance of the evidence that he is permanently
and totally disabled. No treating physician has opined that the claimant is “unable to
earn any meaningful wage in the same or other employment,” which element the
claimant is required to prove in accordance with Ark. Code Ann. § 11-9-519(e)
(Repl. 2012). Both treating surgeons have opined that the surgeries the claimant has
undergone have decreased the claimant’s symptoms and increased his physical
capabilities. Nevertheless, the claimant has not sought any appropriate gainful
employment since retiring from Riceland in 2004. The claimant’s demonstrated lack
of interest in returning to work is an impediment to the Commission’s full assessment
of the claimant’s alleged permanent total disability. When considering the claimant’s
relatively advanced age, lack of education, history of unskilled manual labor,
permanent physical restrictions, and lack of interest in returning to gainful
employment, the Full Commission finds that the claimant proved he sustained wage-
loss disability in the amount of 50%.

(Internal citations omitted.)

IV. Standard of Review

In reviewing decisions from the Commission, we view the evidence and all

reasonable inferences deducible therefrom in the light most favorable to the Commission’s

findings, and we affirm if the decision is supported by substantial evidence. White v. Ark.

State Highway & Transp. Dep’t, 2009 Ark. App. 768. Substantial evidence exists if reasonable

minds could reach the same conclusion. Id. The determination of the credibility and weight

to be given a witness’s testimony is within the sole province of the Commission; the

Commission is not required to believe the testimony of any witness but may accept and

translate into findings of fact only those portions of the testimony it deems worthy of belief.

Voan v. City of Texarkana, 2015 Ark. App. 625. The issue is not whether the appellate court

7
Cite as 2017 Ark. App. 135

might have reached a different result from the Commission; if reasonable minds could reach

the result found by the Commission, the appellate court must affirm. Milton v. K-Tops Plastic

Mfg. Co., 2012 Ark. App. 175, 392 S.W.3d 364.

V. Discussion

Hubbard argues that the Commission erred as a matter of law in requiring an injured

worker to produce a physician’s opinion that he is permanently and totally disabled. He also

argues that it is “utterly non-sensical” to find that he did not seek other employment due

to a lack of interest after the Commission found that he was credible in stating that he had

retired due to difficulties he experienced as a result of his work injury. Hubbard argues that

because of these errors, the Commission erred in finding that he was entitled to only 50

percent wage-loss disability.

The Commission found that Hubbard had retired from Riceland because of his

work-related injuries and the associated difficulties with that particular job but that Hubbard

had improved following his surgeries. He could have, but did not, seek other work that he

was capable of performing. We note that the statute says “the same or other employment.” The

Commission apparently did not believe Hubbard’s testimony that he “can’t do anything.”

Hubbard had a ten-pound lifting restriction and had reached MMI in June 2014. We hold

that the Commission’s decision displays a substantial basis for denying Hubbard’s claim that

he was permanently and totally disabled.

Further, we hold that there is substantial evidence to support the Commission’s

decision that Hubbard sustained 50 percent wage-loss disability. The Commission pointed

out that Hubbard is now seventy-three years old, that he has only a sixth-grade education,

8
Cite as 2017 Ark. App. 135

and that his work history involves primarily unskilled manual labor. The Commission

considered the appropriate factors, including the medical evidence and Hubbard’s

motivation to return to work within his restrictions.

The Commission required Hubbard to prove that he was “unable to earn any

meaningful wage,” which is an element of proving permanent and total disability. The

Commission did not require a physician’s opinion in order to sustain his burden of proof.

The Commission was simply pointing out that Hubbard had no physician’s opinion that he

was permanently and totally disabled and that, in fact, his surgeons reported that Hubbard

had improved after his surgeries. Having a physician’s opinion is just one way to demonstrate

permanent and total disability.

Affirmed.

ABRAMSON and GLADWIN, JJ., agree.

Gary Davis, for appellant.

Friday, Eldredge & Clark, LLP, by: Guy Alton Wade and Phillip M. Brick, Jr., for

appellees.

9