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ELLISON v. THERMA-TRU5/12/1999
Sarah Ellison has appealed the decision by the Workers' Compensation Commission concerning her claim for permanent disability benefits associated with a compensable back injury governed by the Workers' Compensation Law that pre-dated Act 796 of 1993. Ellison contends that the Commission erred in its determination that she is entitled to permanent benefits on account of her anatomical impairment equal to a rating of 1% to the body as a whole, that she was entitled to wage-loss disability benefits of 3% to the body as a whole, and that the Second Injury Fund (SIF) was not liable pursuant to Ark. Code Ann. § 11-9-525 (Repl. 1996). We agree that the Commission erred; therefore, we reverse and remand so that the Commission can determine Ellison's entitlement to benefits according to the correct legal standards.
Ellison sustained a work-related back injury on May 8, 1991, while employed by Therma-Tru, arising from her work pulling a load of door styles. Therma-Tru accepted the injury as compensable and paid indemnity and medical benefits related to it. Ellison continued working for Therma-Tru until July 1, 1993, and has not returned to work elsewhere since that time. She filed a claim for additional compensation benefits in which she contended that she was permanently and totally disabled due to the combined effects of the May 8, 1991 injury and recurrences sustained in December 1992 and June 1993, as well as her pre-existing degenerative back condition and a pre-existing condition of chronic obstructive pulmonary disease. The SIF was joined as a party and denied any liability for benefits, while Therma-Tru denied
Ellison's claim of being permanently and totally disabled. The Commission denied Ellison's claim for permanent and total disability benefits arising from her May 1991 compensable back injury and compensable recurrences in December 1992 and June 1993. Instead, the Commission found appellant entitled to 1% anatomical impairment, found that she was entitled to wage-loss disability benefits of 3% to the body as a whole, and held that the Second Injury Fund was not liable pursuant to A.C.A. § 11-9-525 and Midstate Construction Co. v. Second Injury Fund, 295 Ark. 1, 746 S.W.2d 539 (1988).
It is settled law that on appellate review of workers' compensation cases, we view the evidence and all reasonable inferences from it in the light most favorable to the Commission's findings. Johnson v. Hux, 28 Ark. App. 187, 772 S.W.2d 362 (1989). A decision of the Commission is reversed only if we are convinced fair-minded persons using the same facts could not reach the conclusion reached by the Commission. Mikel v. Engineering Specialty Plastics, 56 Ark. App. 126, 938 S.W.2d 876 (1997). In our review, we defer to the Commission in determining the weight of the evidence and the credibility of the witnesses. Id. The issue is not whether we may have reached a different conclusion or whether the evidence might have supported a contrary finding. Harvest Foods v. Washam, 52 Ark. App. 72, 914 S.W.2d 776 (1996).
Ellison argues that the Commission erroneously focused on deposition testimony by Dr. Stephen Heim, an orthopaedic surgeon, who acknowledged that Ellison had pre-existing back problems before the May 8, 1991 injury , concluded that she sustained some permanent impairment due to the job -related injury, and assessed her permanent anatomical impairment at 6% to the body as a whole due to her overall condition without dividing the impairment between the job-related and the pre-existing condition. When pressed during his deposition to apportion what part of the impairment rating was attributable to the traumatic work injury, Dr. Heim testified:
With the trauma that has been
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