Aluminum Co. of America v. McClendon

Citations: 259 Ark. 675; 535 S.W.2d 832; 1976 Ark. LEXIS 2124Docket: 75-318

Court: Supreme Court of Arkansas; May 3, 1976; Arkansas; State Supreme Court

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J. Fred Jones, Justice, addressed a workmen's compensation case involving Aluminum Company of America, which appealed a circuit court judgment affirming a Commission award of compensation to Virgil D. McClendon. McClendon, aged 62 and considering retirement, sustained a back injury while lifting heavy machinery during his employment as a mechanic. The sole issue on appeal was whether there was substantial evidence to support the Commission's finding of McClendon's total and permanent disability due to the injury.

The evidence included testimony from McClendon and medical reports from two specialists: Dr. Thomas M. Fletcher, a neurosurgeon, and Dr. Walter G. Selakovich, an orthopedic surgeon. Dr. Fletcher first examined McClendon on May 10, 1973, after he reported low back pain that radiated into his hip and leg following an accident. X-rays indicated degenerative changes and a suspected ruptured disc. Dr. Fletcher noted gradual improvement with conservative treatment but mentioned limitations in back motion and continued pain.

Subsequent evaluations revealed persistent pain, stiffness, and limitations in mobility. Despite initial improvement following hospitalization for physical therapy, McClendon experienced a recurrence of pain after minor activity. Dr. Fletcher expressed doubts about McClendon's ability to return to regular work without surgery and indicated that a myelogram might be necessary for further evaluation. By February 5, 1974, Dr. Fletcher diagnosed McClendon with lumbar disc disease and disc protrusion, stating that while McClendon could avoid pain with inactivity, any significant movement would trigger pain. The court concluded that there was insufficient evidence to uphold the Commission's finding of total disability.

Mr. McClendon has an estimated permanent partial disability of 10% related to his lower back, which is considered a lasting condition that prevents him from returning to his previous work activities. Dr. Fletcher confirmed this assessment on February 20 and March 3, 1974, stating that Mr. McClendon reached the end of his healing period as of January 1, 1974. 

On September 20, 1974, Dr. Selakovich evaluated Mr. McClendon, noting a history of a prior myelogram due to a similar injury. Dr. Selakovich found that while Mr. McClendon experienced recurrent low back pain exacerbated by certain movements, his overall movement was at approximately 80% of normal. Neuromuscular examinations were largely normal, except for a slight decrease in the left Achilles reflex. Imaging revealed degenerative changes at the L5S1 and L1L2 levels. 

Dr. Selakovich concluded that Mr. McClendon’s 10% permanent partial impairment does not account for his ongoing disability. He suggested that with a lumbosacral support and conservative management, Mr. McClendon might experience fewer symptoms and could engage in light activities, but he cannot resume strenuous work. Dr. Selakovich assessed the permanent partial physical impairment at 25% for the back. Dr. Fletcher's deposition reiterated his previous findings, mentioning a protruding disc that could potentially be alleviated by surgery, pending confirmation through a myelogram.

Mr. McClendon refused to undergo a myelogram due to past pain experienced after a similar procedure. Medical opinions indicated a fifty-fifty chance of him returning to normal employment following the surgical removal of a problematic disc. Dr. Fletcher noted degenerative changes in Mr. McClendon’s lumbar spine and a possible disc protrusion, stating that while Mr. McClendon was able to limit his activities and avoid severe symptoms, he could not engage in strenuous work. Dr. Selakovich, through deposition, confirmed the presence of a narrow disc space at L-5 S-1 but indicated that prior imaging suggested an older disc issue unrelated to Mr. McClendon’s latest injury. He observed significant improvement since Dr. Fletcher's last examination and opined that major surgery was unnecessary as Mr. McClendon did not exhibit acute symptoms of nerve pressure requiring intervention. Dr. Selakovich believed Mr. McClendon had longstanding degenerative disc disease but no current protrusion causing severe symptoms. He noted that many individuals recover from a ruptured disc without surgery. By September, he found no neurological signs that would warrant a myelogram, suggesting Mr. McClendon could perform light work that avoided heavy lifting and awkward movements, and he recommended the use of a support device to assist in this capacity.

A permanent partial impairment rating of 25 percent was assigned to the claimant's back, despite a prior assessment of only 10 percent by Dr. Fletcher. The evaluating physician, Dr. Selakovich, noted significant evidence of disc problems at three levels, indicating that the claimant's back would not tolerate strenuous work. The claimant, Mr. McClendon, who is 62 years old and has worked as a maintenance mechanic for 22 years, indicated that his previous work as an automobile mechanic was less physically demanding than his current job, which included heavy lifting and operating machinery.

Dr. Selakovich recommended that the claimant wear a back brace intermittently, especially during activities that could stress his back, such as long trips or rough terrains. Mr. McClendon reported that he had been in good health before his injury in May 1973, enabling him to manage farm work and maintain a garden. However, post-injury, he has struggled with physical tasks, including tending to his cattle and gardening, due to pain from activities such as climbing onto his garden tractor or pushing a lawnmower. He has a tenth-grade education and has lived near Benton, where he owns a 50-acre farm.

Mr. McClendon’s testimony reveals his wife primarily manages their garden and lawn care, while he hires someone to repair fences. He expresses that his previous enjoyment of fishing and hunting has diminished due to his injuries, which now prevent him from lifting or engaging in physical activities. He describes experiencing significant pain in his back and hip that hinders his mobility for several days at a time, often interfering with his sleep. Despite being aware of potential job opportunities, he has not sought new employment due to his belief that he is unfit for work, as confirmed by his doctor, who has stated he is unable to return to his previous job at the plant. Mr. McClendon recounts a past back injury from 12 to 14 years ago, which required hospitalization and a myelogram, and although he returned to work afterward, he now suffers more severe pain following a subsequent injury. On cross-examination, he emphasizes that while he could perform light tasks, such as record-keeping, he is unwilling to seek work that requires physical exertion, particularly since he feels he would not be hired back at his former job.

At the end of the testimony, the appellant's attorney requested a current examination of Mr. McClendon by Dr. Fletcher to assess any changes in his condition and whether surgical intervention was now advisable. Alternatively, the attorney sought to depose Dr. Fletcher. The appellee's counsel opposed further delays, citing earlier statements from the appellant's attorney indicating a lack of desire to cross-examine Dr. Fletcher, claiming this waived the right to do so. The referee allowed the deposition without requiring a new examination, believing Dr. Fletcher had sufficient knowledge of Mr. McClendon’s condition. 

Disability under the Workmen’s Compensation Law is defined as the incapacity to earn wages due to injury, and the determination of injury and its extent is a factual question for the Commission, whose findings are not disturbed by courts if based on substantial evidence. Substantial evidence is characterized as compelling enough to draw a definitive conclusion and must be more than mere suspicion or conjecture. Dr. Fletcher deemed Mr. McClendon a potential candidate for surgery to remove a protruding disc, indicating a reasonable chance of returning to work post-surgery. Mr. McClendon was reluctant due to previous pain from a recommended myelogram, which Dr. Fletcher suggested to clarify the disc’s condition before surgery. Dr. Fletcher noted an improvement in Mr. McClendon’s condition up to his last examination. According to Ark. Stat. Ann. 81-1311, if an injured individual unreasonably refuses a advised surgical procedure from two qualified physicians, the Commission may consider this refusal when determining compensation, provided the surgery does not involve significant risk.

Only two qualified physicians examined Mr. McClendon, with Dr. Selakovich noting significant improvement since Dr. Fletcher's last evaluation. Under Ark. Stat. Ann. 81-1319, the Commission can conduct investigations and hearings regarding compensation claims. The Commission referred Mr. McClendon to Dr. Selakovich, who assessed his permanent partial disability by considering both functional limitations and the types of work he could perform. The evidence regarding Mr. McClendon’s permanent disability falls between the findings in Wilson Co. v. Christman and Ray v. Shelnutt Nursing Home. In Christman, the highest medical estimate was 30% with a Commission award of 60%, while in Ray, the medical estimate was 20% with a 40% award. Mr. McClendon testified about his inability to perform certain tasks post-injury but did not seek other employment, unlike Mrs. Ray, who had not worked since her injury. The court clarified that it does not suggest a specific percentage of Mr. McClendon's disability but found no substantial evidence to support the Commission's determination of 100% permanent total disability. The judgment was reversed, and the case was remanded for further proceedings consistent with this opinion.