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Nichols v. Micro Plastics, Inc.

Court of Appeals of Arkansas, Division II

February 25, 2015



Frederick S. "Rick" Spencer, for appellant.

Spicer Rudstrom, PLLC, by: Bradford J. Spicer, for appellees.


Appellant James A. Nichols sustained an admittedly compensable low back injury while working for appellee Micro Plastics, Inc., on May 12, 1994. As a result of the injury, Mr. Nichols underwent laminectomies in 1994 and 1995, and a laminectomy and fusion surgery in 1996. Mr. Nichols continued working for Micro Plastics until October 2002. Micro Plastics covered the medical treatment associated with the injury and accepted an eighteen percent permanent anatomical impairment rating.

In 2013, Mr. Nichols filed a petition alleging that he was permanently and totally disabled, or in the alternative that he was entitled to wage-loss benefits. After a hearing, the Workers' Compensation Commission rejected Mr. Nichols's claim for permanent and total disability benefits. The Commission did, however, award thirty-two percent wage-loss disability over and above Mr. Nichols' permanent anatomical impairment rating.

Mr. Nichols now appeals from the Commission's decision. First, he argues that the Commission erred in not finding that he is permanently and totally disabled. Alternatively, Mr. Nichols argues that he should be entitled to at least an eighty percent award of permanent partial wage-loss disability benefits. Finally, Mr. Nichols argues that the Arkansas Workers' Compensation Act is unconstitutional. We affirm.

Permanent total disability is defined by statute as the 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) (Repl. 2012). The employee bears the burden of proving the inability to earn any meaningful wage. Ark. Code Ann. § 11-9-519(e)(2) (Repl. 2012). In considering claims for permanent partial disability benefits in excess of the percentage of permanent physical impairment, the Commission may take into account such factors as the employee's age, education, work experience, and other matters reasonably expected to affect his or her future earning capacity. Ark. Code Ann. § 11-9-522(b)(1) (Repl. 2012). The wage-loss factor is the extent to which a compensable injury has affected the claimant's ability to earn a livelihood. Thompson v. Mountain Home Good Samaritan Vill., 2014 Ark.App. 493, 442 S.W.3d 873.

Our court views the evidence in a light most favorable to the Commission's decision and affirms the decision if it is supported by substantial evidence. Pratt v. Rheem Mfg., 2013 Ark.App. 577. Substantial evidence exists if reasonable minds could reach the Commission's conclusion. Id. When the Commission denies a claim because of the claimant's failure to meet his burden of proof, the substantial-evidence standard of review requires that we affirm the Commission's decision if it displays a substantial basis for the denial of relief. Martin Charcoal, Inc. v. Britt, 102 Ark.App. 252, 284 S.W.3d 91 (2008). It is the Commission's duty, not ours, to make credibility determinations, to weigh the evidence, and to resolve conflicts in the medical testimony. Id.

Mr. Nichols is fifty-six years old, and for thirteen years he worked as a toolmaker for Micro Plastics. Mr. Nichols testified that his job required him to program information into a computer console, and based on that information a machine would cut a tool. Mr. Nichols stated that his job "involved only programming machines, so the machine did all the work for me except that I had to put in the steel bars." Mr. Nichols testified that the job required a lot of knowledge but that it was "not physically demanding at all." Mr. Nichols said that the only physically demanding part was when a long piece of stock needed to be sawed into shorter pieces, but that on those occasions he received help from other workers.

Mr. Nichols testified that he injured himself at work on May 12, 1994, when he was dumping out a box of scrap metal and felt a pop in his back. He underwent multiple surgeries, the last one coming in 1996, and he spent time off work recovering from each of the surgeries. However, after returning to work a few months after the 1996 surgery, Mr. Nichols continued to work for Micro Plastics until October 2002. Mr. Nichols testified that "the pain got worse until I just couldn't do it anymore." Mr. Nichols stated that he has not looked for any work since 2002.

Mr. Nichols testified that his back is never pain free and that "it goes from five on a ten-point scale to close to ten where I can't really move at all." Mr. Nichols stated that he takes prescription pain medication and has trouble sleeping. He further stated he spends most of his time on the couch and on average is only productive for about an hour per day. Mr. Nichols stated that on some days he is able to walk around the block, and that he is also capable of mowing his yard with a riding lawn mower. In a work situation, Mr. Nichols thought he could probably sit for about fifteen minutes at once. However, he stated that he did not think there was any job he could perform.

Multiple lumbar MRIs were performed over the course of appellant's continuing conservative treatment. In April 2002, an MRI detected bulging disks at the L3–L4, L4–L5, and L5–S1 levels, but no herniated disks or marked central canal stenosis. A September 2008 MRI detected mild spinal stenosis at L4–L5, previous laminectomy and posterior stabilization at L5–S1, a moderate concentric disk bulge at L3–L4 but without stenosis, and no apparent acute process. Another MRI was performed in December 2013, with the impression of central canal stenosis at the L3–L4 and L4–L5 levels, with no enhancing lesions noted.

During the course of his treatment Mr. Nichols came under the care of Dr. Richard Burnett in 2000, and in May 2004 Dr. Burnett gave the opinion that Mr. Nichols was totally disabled due to his workers' compensation injury. Dr. Jason Tullis reported in October 2008 that Mr. Nichols continued to have pain and some degenerative disease with mild stenosis at L4–L5, that the stenosis was not significant enough to require decompression, and that Mr. Nichols fit ...

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