Jack Nelson Jones Professional Association

June 25 - July 1, 2018

Vann v. Fedex Freight, Inc., 2018 Ark. App. 353 (June 6, 2018)

This appeal comes from the Arkansas Workers’ Compensation Commission. The case involves the Commission’s reduction of impairment ratings awarded by the Administrative Law Judge (“ALJ”).

Kenneth Vann sustained a compensable injury in 2015, while employed by FedEx Freight, Inc. (FedEx). He had been employed by FedEx since 1997 and was approximately fifty-seven years old when the injury occurred. The ALJ found that Vann proved he had sustained a permanent physical impairment in the amount of 20 percent to his body as a whole but did not sustain his burden of proving permanent total disability (PTD). Instead, the ALJ found he did prove he was entitled to 70 percent wage-loss disability in addition to his anatomical loss. The ALJ also awarded Vann’s counsel the maximum attorney fees permitted by statute. FedEx appealed the decision to the full Workers’ Compensation Commission.

The Commission affirmed the ALJ’s finding that Vann failed to prove PTD; reduced Vann’s permanent physical-impairment rating from 20 percent to 5 percent; and reduced his wage-loss award from 70 percent to 20 percent. The Commission’s opinion said nothing about attorney fees. Vann then appealed the Commission’s decision to the Court of Appeals.

On appeal, the Court noted the well-established principles that it views the evidence in the light most favorable to the Commission’s findings and affirms if there is substantial evidence supporting the Commission’s decision.

Vann was employed as an over-the-road truck driver. His injury occurred when he slipped getting into the driver’s side of his truck at the start of his shift and he was unconscious for 40 to 45 minutes. He testified he was fine before the accident but was now afraid to drive because he could not feel his feet and could only walk about 200 feet with a walker or cane before tiring out. He also testified that his lower back really bothers him and is numb from midway down to his tailbone. Just four months prior to his the injury, he passed his Department of Transportation physical exam and two weeks before the accident he had seen his personal doctor for a physical exam.

Vann described his symptoms following the accident to include numbness in his arms and hands, lower back, and lower extremities; incontinence; and headaches. He testified he had driven for FedEx for nineteen years and had none of those symptoms before the accident. Vann acknowledged he was  in a motorcycle accident twenty-three years previously that fractured his skull. He also testified he had gained about thirty pounds since the accident and was again required to take Metformin, a diabetes medication that he had been able to discontinue earlier because he had lost a significant amount of weight. When asked about reports that linked the numbness in his extremities to carpal-tunnel syndrome and “some other neuropathy,” he stated he found it strange he was walking fine before the accident and “could feel everything.”

Mrs. Vann testified that he was perfectly fine before the fall but that afterwards he had been unable to walk without a cane and had a lot of numbness from his elbows down and his knees down. She also testified his muscles had begun to atrophy but that physical therapy had helped him as had nerve blocks for his pain. However, when workers’ compensation stopped paying for those treatments, he was in constant pain and took Advil for his headaches and muscle relaxers so he could sleep.

Medical records from the doctors who treated Vann following the accident were submitted as exhibits. Those doctors included Dr. Alan Nadel, a neurologist; Dr. Alan Alabaster, a urologist; Dr. Fereidoon Parsioon, a neurosurgeon; Dr. Robert Jones, an orthopedic surgeon; and Dr. Alan Kraus, a pain-management doctor. Dr. Nadel determined Vann reached maximum medical improvement by November 7, 2016, and Dr. Nadel was the only physician who thought Vann suffered a traumatic cervical-cord injury that was interconnected with his other ailments. The MRIs and other doctors’ opinions indicated only degenerative cervical conditions with no evidence of acute injury.

After reviewing the evidence, including the medical records, the Commission reduced his impairment rating to 5 percent and his permanent partial-disability wage-loss rating to 20 percent. On appeal, Vann argued these determinations were not supported by substantial evidence. In sum, he argued that that the Commission’s analysis of his condition was one involving the cervical and thoracic spine, not the lumbar spine; yet the Commission “applied a portion of Table 75 which addresses only a lumbar issue, not cervical or thoracic.” He further contended that, “[i]f this Court accepts the Full Commission’s suggestion that the Claimant suffers from a, as it so found, then Table 73 is the table which would apply,” and it would require a finding of a 25 percent impairment rating to the body as a whole.

The Court of Appeals rejected this contention noting that the Commission did not find a cervicothoracic spine impairment and, in fact, carefully rejected Dr. Nadel’s findings in that regard. Instead, the Commission only found that a lumbar injury caused some degree of permanent physical impairment. It noted that Dr. Nadel was the only physician who thought Vann suffered a traumatic cervical-cord injury, which was interconnected with the other ailments. The MRIs and other doctors’ opinions indicated only degenerative cervical conditions, with no evidence of acute injury. Thus, the Court found that there was substantial evidence supporting the use of the portion of Table 75 that addresses lumbar issues, rather than the table that addresses cervical issues. Accordingly, it affirmed that portion of the Commission’s decision.

The Court then addressed the Commission’s wage-loss rating of 20 percent. It noted that the Commission’s analysis was based upon the same facts as that relating to the impairment rating. In addition, Vann had testified that there were some jobs that he could perform although he was no longer able to work as truck driver. The Court noted that it is within the province of the Commission to make determinations of the credibility and weight to be given to testimony and evidence. In this case, the Commission concluded Vann lacked the willingness, or motivation, to return to work, and he failed to prove his compensable lumbar injury rendered him unable to earn any meaningful wages in the same or another profession. The Court held that fair-minded persons with the same facts before them could reach the same conclusion as the Commission. Accordingly, the Court affirmed the Commission’s determination.

Finally, although the ALJ awarded Vann’s attorney the maximum attorney fee permitted by statute for the controverted indemnity benefits, the Commission ignored the issue of attorney fees in its decision and awarded nothing. Vann contended this was error because, even though the ALJ’s award in his favor was modified, it was still affirmed, entitling his counsel to a fee award. The Court, however, noted that the Commission’s decision did not mention the attorney-fee award, and, therefore, remanded this issue back to the Commission for a determination.