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Birtcher v. Mena Water Utilities

Court of Appeals of Arkansas, Division I

April 5, 2017



          Hatfield Law Firm, by: Jason M. Hatfield; and Cullen & Co., PLLC, by: Tim J. Cullen, for appellant.

          Katie Bodenhamer, for appellees.

          KENNETH S. HIXSON, Judge

         Appellant Brian O. Birtcher sustained admittedly compensable injuries to his head and his left leg while working for appellee Mena Water Utilities on July 28, 2013. Mena Water Utilities covered the medical treatment associated with the injuries and accepted a thirty-three percent permanent anatomical impairment rating for neurologic impairments associated with traumatic dissection of the left vertebral artery and a stroke. Although Mena Water Utilities admitted that it was responsible for some degree of permanent partial wage-loss benefits, it controverted Mr. Birtcher's claim that he was permanently and totally disabled.

         After a hearing, the Workers' Compensation Commission denied Mr. Birtcher's claim for permanent and total disability benefits. The Commission did, however, award fifty-percent wage-loss disability over and above Mr. Birtcher's permanent anatomical impairment rating. Mr. Birtcher now appeals, arguing that the Commission's decision denying his claim for permanent and total disability benefits was not supported by substantial evidence. 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). 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). 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. Nichols v. Micro Plastics, Inc., 2015 Ark.App. 134. 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. Birtcher testified that he was forty-two years old at the time of the hearing and that he lived in Rocky, Arkansas, which is about eight miles west of Mena. His past employment included working as a drilling rig operator, deputy sheriff, bouncer, and machine operator at a poultry plant. Mr. Birtcher began working on the sewer-maintenance crew for Mena Water Utilities in 2006.

         While working for Mena Water Utilities on July 28, 2013, Mr. Birtcher was assaulted by a man and his wife while he was attempting to disconnect their water. According to Mr. Birtcher, the man's wife weighed 300 pounds and she kicked him in the head, stomped on his leg, jumped on his back, and jerked his head around.

         Mr. Birtcher went to the emergency room that day and was diagnosed with a broken left leg. Mr. Birtcher was also experiencing dizziness, headaches, and nausea as a result of the attack, and he came under the care of a neurologist, Dr. Stephen F. Shafizadeh. Subsequent testing confirmed that Mr. Birtcher had suffered a left vertebral artery dissection and a brain stem stroke. Mr. Birtcher's problems included difficulty with swallowing, numbness in his extremities, and vertigo.

On October 9, 2013, Dr. Shafizadeh reported:
With regard to [Mr. Birtcher] returning to work, I instructed him that he could return to work as long as work had limited risk. As such, I recommend to him to have a "desk job." There were no limitations if he was to have a desk job at his same ...

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