BRIAN O. BIRTCHER APPELLANT
MENA WATER UTILITIES, ARKANSAS MUNICIPAL LEAGUE, AND DEATH & PERMANENT TOTAL DISABILITY TRUST FUND APPELLEES
FROM THE ARKANSAS WORKERS' COMPENSATION COMMISSION [NO.
Hatfield Law Firm, by: Jason M. Hatfield; and Cullen &
Co., PLLC, by: Tim J. Cullen, for appellant.
Bodenhamer, for appellees.
KENNETH S. HIXSON, Judge
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.
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.
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.
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.
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.
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.
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
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 ...