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Hubbard v. Foods

Court of Appeals of Arkansas, Division I

March 8, 2017



          Gary Davis, for appellant.

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

          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.

          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 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]."

         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 ...

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