{"id":"alj-H104701-2024-07-18","awcc_number":"H104701","decision_date":"2024-07-18","opinion_type":"alj","claimant_name":"Jack Harrison","employer_name":"Nwa Food Bank","title":"HARRISON VS. NWA FOOD BANK AWCC# H104701 July 18, 2024","outcome":"granted","outcome_keywords":["granted:3"],"injury_keywords":["strain"],"pdf_url":"https://www.labor.arkansas.gov/wp-content/uploads/HARRISON_JACK_H104701_20240718.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"HARRISON_JACK_H104701_20240718.pdf","text_length":19362,"full_text":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. H104701 \n \nJACK HARRISON, Employee CLAIMANT \n \nNWA FOOD BANK, Employer RESPONDENT \n \nSUMMIT CONSULTING, LLC, Carrier RESPONDENT \n \n OPINION FILED JULY 18, 2024 \n \nHearing   before   ADMINISTRATIVE   LAW   JUDGE   ERIC   PAUL   WELLS   in   Springdale, \nWashington County, Arkansas. \n \nClaimant represented by EVELYN E. BROOKS, Attorney at Law, Fayetteville, Arkansas. \n \nRespondents represented by GUY ALTON WADE, Attorney at Law, Little Rock, Arkansas. \n \n STATEMENT OF THE CASE \n \n On April  23,  2024,  the  above  captioned  claim  came  on  for  a  hearing  at  Springdale, \nArkansas.      A  pre-hearing  conference  was  conducted  on February  26,  2024,  and  a  Pre-hearing \nOrder  was  filed  on February  27,  2024.      A  copy  of  the  Pre-hearing  Order  has  been  marked \nCommission's Exhibit No. 1 and made a part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1. The Arkansas Workers' Compensation Commission has jurisdiction of this claim. \n 2. The  relationship  of  employee-employer-carrier  existed  between  the  parties on  May \n20, 2021. \n 3. The  claimant  sustained  a  compensable  injury  to  his  right  eye  on  or  about  May  20, \n2021. \n 4. The respondents have accepted and paid a 4% PPD rating for the claimant’s right eye \ninjury. \n\nHarrison – H104701 \n \n-2- \n By agreement of the parties the issues to litigate are limited to the following: \n 1.  Whether  Claimant  is  entitled  to  additional  permanent  partial  disability  benefits  up  to \nand including total vision loss in right eye. \n 2. Whether Claimant’s attorney is entitled to an attorney fee. \n The claimant's contentions are as follows: \n“The claimant contends he is entitled to compensation for the total \nloss of vision in his right eye. Claimant reserves all other issues.” \n \n The respondents’ contentions are as follows: \n“Respondents   contend   that   they   have   accepted   the   claim   as \ncompensable  and  have  timely  paid  applicable  benefits.  No  part  of \nthis claim has been controverted.” \n \n The claimant in this matter is a 52-year-old male who sustained a compensable injury to \nhis  right  eye  on  or  about  May  20,  2021.  At  the  time  of  his  compensable  right  eye  injury,  the \nclaimant’s job duties for the respondent included driving large trucks and distributing food from \nthose trucks. The claimant’s right eye injury occurred when he was loading food into a truck for \na  customer.  That  truck  had  a  camper  shell  on  its  bed.  When  the  claimant  shut  the  lid  on  the \ncamper  shell  debris, including  bird  feces, went  into  the  claimant’s  eye.  The  claimant’s  eye \nswelled  shut  and  he  went  to  see  David  Hurd,  OD,  at  Vold  Vision  the  next  day. The  claimant \ntreated  with  OD  Hurd  until  May  28,  2021, when  he  was  seen  at  Boozman-Hof  Regional  Eye \nClinic in Rogers, Arkansas, by Michael Waggoner, DO. The claimant primarily treated with DO \nWaggoner  until  August  7,  2022,  when  DO  Waggoner  found  the  claimant  to  be  at maximum \nmedical improvement. As a result of the claimant’s compensable right eye injury, he  sustained \ndecreased vision in his right eye, an ulcer of the right eye that resolved, and two stromal scars in \nhis right eye.  \n\nHarrison – H104701 \n \n-3- \n The  central  issue  in  this  matter  is  the  claimant’s  entitlement  to  additional  permanent \npartial disability benefits up to and including total vision loss in the claimant’s right eye. The \nrespondents have accepted and paid a 4% permanent partial disability rating for the claimant’s \nright eye injury as stipulated by the parties. \n In  the  present  matter,  the  following  statute  should be  considered in  determining  the \namount of anatomical or permanent disability the claimant is entitled to in conjunction with the \nAmerican  Medical  Association  Guides  to  the  Evaluation  of  Permanent  Impairment  4\nth\n Edition, \nherein after referred as AMA Guides 4\nth\n.  \nACA §11-9-521 (a)(14) states:  \nEye enucleated, in which there was useful vision, one hundred five \n(105) weeks. \n \nACA §11-9-521 (c)(1)(2) states:  \nCompensation  for  the  permanent  loss  of  eighty  percent  (80%)  or \nmore of the vision of an eye shall be the same as for the loss of an \neye. \n \nIn all cases of permanent loss of vision, the use of corrective lenses \nmay be taken into consideration in evaluating the extent of loss of \nvision. \n \n On September 8, 2022, an impairment evaluation summary was offered by Rick Byrd of \nFunctional  Testing  Centers,  Inc.,  regarding  the  claimant’s  compensable  right  eye  injury. \nFollowing is a portion of that report: \n1. Mr.  Harrison  has  Loss  of  Central  Vision  of  the  right  eye  as \nfollows: \nVisual Acuity Testing Results using Corrected vision: \nSnellen Result – For Distance \n20/40 Right Eye – DVA with corrective contact lens. (Documented \nin 8/17/2022 note, Dr. Waggoner.) 20/20 Left Eye \nSnellen Result – For Near \nNo documentation of loss of near sight – Right eye \nNo documentation of loss of near sight – Left eye \n \n\nHarrison – H104701 \n \n-4- \nThis  result  is an  8%  loss  of  central  vision  using  Table  3:  Loss  of \nCentral  Vision  in  a  Single  Eye – Right.  Mr.  Harrison  records  are \nconsistent  with  the  Snellen  result  and  he  does  have  glasses  and \ncontacts indicating this level of distance vision loss. \n \n2. Table 5: Loss of Monocular Visual Field \nTesting  for  loss  of  monocular  field  is  a  subjective  test  that  is \ncompletely  within  the  control  of  the  subject  and  therefore  not \nutilized for purpose of establishing impairment in this case. \n \n3. Using Figure 3: Percentage Loss of Ocular Motility of one eye \nMr.  Harrison  was  documented  as  having  full  ocular  motility  (Dr. \nWaggoner  note  6-13-2022)  with  no  objective  results  for  binocular \ndiplopia  (double  vision).  This  result  is  a  0%  loss  for  loss  of \nmotility. \n \nSummary – Conclusion  using  8.4  of  the  Guides  in  Determining \nImpairment  of  the  Visual  System  and  of  the  Whole  Person  (p. \n217): \nRight Eye \nLoss of Central Vision (Near and far) = 8% \nLoss of Visual Field = 0% \nLoss of Ocular Motility = 0% \n \nOther:   The   Guides   do   allow   for   an   additional   10%   visual \nimpairment of the involved eye in the case of abnormalities, which \nin this case do exist. Mr. Harrison has objective findings of “ulcer \nresolved with residual 2 stromal scars,” documented on 8-17-2022 \nnote from Dr. Waggoner) associated with his work related injury to \nhis  right  eye.  This  10%  will  be  combined  with  the  8%  visual \nimpairment  for  loss  of  central  vision  using  the  combined  values \nchart (p. 322). \n \nUsing Combined values chart (p. 322) this is an impairment of the \nright eye of: 17% \n \nMr. Harrison does not have an impairment of the Left Eye with an \nimpairment of 0% of the left eye. \n \nThe Guides instruct to then determine a Visual System Impairment \nusing Table 7. \nThis  table  indicates  the  Visual  System  Impairment  of  Both  Eyes \n(17% Right, 0% Left) results in a 4% Visual System Impairment of \nBoth Eyes. \n \n\nHarrison – H104701 \n \n-5- \nThe  Guides  then  instruct  to  then  determine  the  Impairment  of  the \nWhole Person using Table 6 (p. 218). \nIn this case, Mr. Harrison has a 4% Whole Person Impairment for \nhis eye related injury. \nImpairment as a result of this work related injury. \n \n On  August  7,  2023,  DO  Waggoner  authored  a  letter  regarding  the  claimant’s \ncompensable right eye injury, addressing his ability to use a corrective lens as follows: \nTo whom it may concern. I am writing this letter on behalf of Jack \nHarrison. This letter is to make those aware that Jack is considered \nlegally  blind  with  this  his  right  eye.  He  has  tried  wearing  a \nspecialty contact lens and with this lens his vision is correctable to \nthe  20/40  range.  With  the  scleral  lens  Jack  does  struggle  with  his \ndepth  perception  and  he  has  a  hard  time  driving  due  to  this.  I  do \nwant to make you aware the scleral lens is a very difficult lens for \nsome  patients  to  wear  or  even  tolerate  given  their  size.  They  are \nalso very costly. The main reason for us fitting him with the scleral \nlens  was  to  see  is  his  vision  could  even  be  improved.  The  scleral \nlens  is  not  a  good  long-term  option  for  him  unfortunately.  At  his \nlast  exam  we  did  talk  about  the  future  possibility  doing  a  corneal \ntransplant. \n \n**At    this    time    patient    has    reached    maximum    medical \nimprovement.** \n \nExpected  follow  up  would  include  contact  lens  evaluations  about \nevery 6 months with re-fit every 1-2 years. Yearly exams to check \npressures  and  overall  scar/eye  health  while  on  steroid  drops  PRN. \nMay  have  occasional  flares  requiring  unplanned  follow  up  exams \nand eye drops (steroid and pressure drops). \n \n At  the  hearing  in  this  matter  the  claimant  gave  direct  examination  testimony  about  his \ncurrent right eye difficulties as follows: \nQ And what kind of symptoms do you have in your right eye \nnow? \n \nA I  have  poor  depth  perception  and  I  see  shadows.  I  see \ntracers. When something moves, it leaves a trace. Other than that, \nit’s useless. \n \n\nHarrison – H104701 \n \n-6- \nQ The  vision  that  you  actually  have  in  that  eye,  can  you \ndescribe what you can see with your eye? \n \nA It  looks  like  a  kaleidoscope.  When  you  look  through  a \nkaleidoscope, if I look at anything, it’s everywhere. \n \nQ Okay. So if you close your left eye and use only your right \neye, are you able to recognize people? \n \nA No. \n \nQ Are you able to drive just using your right eye? \n \nA No. No, I can’t even see the road. \n \nQ Well, what can you do with just your right eye? \n \nA Nothing. \n \nQ If you have both of your eyes open, what is your vision like \nthen? \n \nA It’s no dept perception. It’s – my  left  eye  is  fighting  with \nmy right eye trying to focus and I’ll be exhausted by the end of the \nday. \n \nQ And why does it exhaust you? \n \nA Just from the strain from my right eye trying to work. \n \nQ Do you have any pain anymore from your eye? \n \nA If it’s too bright, like these lights right now, my eye’s just \ntwitching from the fluorescent lights in the room. \n \n The  claimant  also  gave  direct  examination  testimony  about  the  use  of  the  corrective  or \nscleral lens as follows: \nQ And  once  the  infection  was  gone  from  your  eye,  Dr. \nWagner recommended a scleral lens, is that correct? \n \nA Correct. \n \nQ Can you tell us, what is a scleral lens? \n\nHarrison – H104701 \n \n-7- \n \nA It’s  a  lens  about  the  size  of  a  quarter,  and  it  has  to  be \nspecifically made for the contour and the scarring in my eye. You \nhave  to  have  a  suction  cup  to  place  it  on.  You  have  to  fill  it \ncompletely full of saline solution, and you have to lean completely \nlevel over with the floor so you don’t spill it, try to open your eye \nas wide as you can and stick that thing in your eye. If you touch an \neyelid or if it gets a bubble in it, you have to pull it out and start all \nover again. \n \nQ And  are  you  able  to  put  that  scleral  lens  in  your  eye \nyourself? \n \nA No. \n \nQ And why not? \n \nA My  eye’s  been  closed  up  for  over  a  year  because  of  the \ninjury,  and  anything  I  try  to  force  my eye open,  by  the  time  I  get \nabout six inches away from my face with my left eye that I can see, \nI can’t seem to put it in. \n \nQ So the closer the scleral lens gets to your eye you can’t see \nit; is that what you are saying? \n \nA Correct. \n \nQ And what do you mean your  eye’s been closed up for a \nyear? \n \nA From  any  light.  I  couldn’t  go  outside  for  over  a  year \nbecause of it – I couldn’t even hardly watch TV because the glare \nfrom the TV would just drive me insane. \n \nQ So you have had the scleral lens in your eye? \n \nA Yes. \n \nQ And how did you get it there? \n \nA The  technician  from  Boozman-Hof,  she  was  the  only  one \nthat  could  get  it  in  for  me,  and  it  would  actually  take  her  ten  to \ntwelve tries before she could actually get it in. \n \n\nHarrison – H104701 \n \n-8- \nQ And  why  was  that?  What  made  her  have  to  try  so  many \ntimes? \n \nA Because  it  was  so  difficult  to  get  my  eye  open  enough  to \nget that big lens in because it’s – a normal contact lens is about the \nsize of your big finger and this thing was over the size of a quarter. \n \nQ So  when  you  had  the  scleral  lens  in,  about  how  long  did \nyou keep it in? \n \nA A couple of hours. \n \nQ And why only a couple of hours? \n \nA It would start to hurt. \n \nQ When  you  had  it  in  for  those  couple  of  hours,  what  was \nyour vision like then? \n \nA I could tell who you are but if you had anything written on \nyour  shirt  or  if  there  was  any – any  messages  or  anything  on  the \nwalls or anything, I can’t see them. I can’t tell you what they say. \nThe clock, I couldn’t tell you what the clock said.  \n \nQ Did the scleral lens improve your depth perception? \n \nA No. \n \nQ What  about  the  peripheral  vision?  Did  that  help  on  the \nperipheral vision? \n \nA A little but the lens was so thick that was just – I know like \nif it’s about 45 degrees, I could tell you’re there. \n \nQ So  do  you  feel  like  you’re  going  to  be  able  to  use  the \nscleral lens? \n \nA No. \n \nQ And  I  guess  for  the  reasons  you  said  but  can  you  just \nsummarize why you feel like you can’t use that? \n \nA I don’t have an hour to try to get it in every day and then \ntry to take it out or whatever because you have to have that suction \n\nHarrison – H104701 \n \n-9- \ncup again to stick to it and then slide it out of your eye. And then \nwhat’s the purpose of that? \n \nQ Have you ever been successful at getting it in yourself? \n \nA No. \n \n The claimant’s impairment evaluation summary by Mr. Byrd determined the claimant to \nhave impairment of 8% to his right eye based upon 20/40 central vision in the claimant’s right \neye.  I agree that the AMA Guides 4\nth\n would provide 8% of impairment to the right eye using a \ncorrective lens. However, ACA 11-9-521(c)(2) states:  \nIn all cases of permanent loss of vision, the use of corrective lenses \nmay be taken into consideration in evaluating the extent of loss of \nvision. (Emphasis added) \n \nI find the claimant’s testimony to be credible regarding his inability to wear a scleral lens, \nin part due to its large size and the lens being extraordinarily difficult to put into one’s eye. That \ntestimony is clearly supported in DO Waggoner’s August 7, 2023, letter about the scleral lens.  \nI do not believe the claimant’s vision should be considered with a corrective lens that he \nis unable to wear. In a March 2, 2022, clinic encounter note by DO Waggoner it was found that \nthe claimant’s vision was 20/200. This appears to be the claimant’s last visit with DO Waggoner \nbefore  his  May  9,  2022, visit, when  he  was  first  fitted  with  the  scleral  lens.  I  find,  using  AMA \nGuides 4\nth\n, Chapter 8, The Visual System, Table 3: Loss of Central Vision in a Single Eye, the \nclaimant’s impairment to the right eye to be 40%.  \n I do agree with Mr. Byrd’s additional assessment of 10% impairment to the right eye due \nto impairment for orbital scar and deformity, which is found in the AMA Guides 4\nth\n, Chapter 8, \nThe  Visual  System,  page  222,  under  a  section  called  “Other  Conditions.”  Taking  both  the \n\nHarrison – H104701 \n \n-10- \nclaimant’s 40% and 10% impairment to the right eye and applying them to the AMA Guides 4\nth\n \ncombined values chart at pages 322-324, the claimant’s total impairment to the right eye is 46%.  \n In Mr. Byrd’s impairment report he uses AMA Guides 4\nth\n, Chapter 8, Table 6 to convert \nthe claimant’s right eye impairment to a whole person impairment. While the AMA Guides 4\nth\n \ndoes  allow  for  this,  the  Arkansas  Workers’  Compensation  Act  does  not.  In Multi-Craft \nContractors,  Inc.  v. Yousey, 2018,  Ark.  App. 107,  542,  S.W.3\nrd\n,  155  (2018) the  Arkansas \nSupreme Court stated: \nWe agree with the parties and hold that Yousey's left eye injury is \na scheduled injury. Our court of appeals has explained that the test \nof  whether  an  injury  falls  within the  scheduled-injury  category  is \nprimarily  a  question  of law. Fed.  Compress  &  Warehouse  Co.  v. \nRisper,  55  Ark. App.  300,  935  S.W.2d  279  (1996).  The  court \nfurther explained  that  partial  permanent  impairments  to  the  eyes \ncome within the scheduled-injury category as set forth in Arkansas \nCode Annotated section 11–9–521 and that claimants are limited to \nthe  scheduled  benefits. Id. A claimant  who  sustains  a  scheduled \ninjury  is  limited  to  the applicable  allowances  set  forth  in  section \n11–9–521. Id. \n \n As  such,  the  claimant  is  entitled  to  a  total  of  46%  impairment  to  the  right  eye  less  any \namount already paid by the respondent. I note that the claimant’s right eye impairment does not \nmeet the 80% threshold for total loss of an eye described in ACA 11-9-521 (c)(1). \n From a review of the record as a whole, to include medical reports, documents, and other \nmatters properly before the Commission, and having had an opportunity to hear the testimony of \nthe  witness  and  to  observe his demeanor,  the  following  findings  of  fact  and  conclusions  of  law \nare made in accordance with A.C.A. §11-9-704: \n \n \n \n\nHarrison – H104701 \n \n-11- \n FINDINGS OF FACT & CONCLUSIONS OF LAW \n 1.  The  stipulations  agreed  to  by  the  parties  at  the  pre-hearing  conference  conducted  on \nFebruary  26,  2024,  and  contained  in  a  Pre-hearing  Order  filed February  27,  2024,  are  hereby \naccepted as fact. \n 2. The  claimant  has  proven  by  a  preponderance  of  the  evidence  that  he  is  entitled  to \npermanent disability benefits to his right eye in the amount of 46%. \n 3.  The  claimant  has  proven  by  a  preponderance  of  the  evidence  that  his  attorney  is \nentitled to an attorney’s fee in this matter.  \n ORDER \nThe  respondent  shall  pay  the  claimant  an  amount  equal  to  46%  impairment  to  the  right \neye, less any monies already paid in impairment regarding the right eye. \nThe respondents shall pay to the claimant's attorney the maximum statutory attorney's fee \non the benefits awarded herein, with one half of said attorney's fee to be paid by the respondents \nin addition to such benefits and one half of said attorney's fee to be withheld by the respondents \nfrom such benefits pursuant to Ark. Code Ann. §11-9-715. \n All  benefits  herein  awarded  which  have  heretofore  accrued  are  payable  in  a  lump  sum \nwithout discount. \n This award shall bear the maximum legal rate of interest until paid. \nIf  they  have  not  already  done  so,  the  respondents  are  directed  to  pay  the  court  reporter, \nVeronica Lane, fees and expenses within thirty (30) days of receipt of the invoice. \n IT IS SO ORDERED. \n                                ____________________________                                               \n       HONORABLE ERIC PAUL WELLS \n       ADMINISTRATIVE LAW JUDGE","preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H104701 JACK HARRISON, Employee CLAIMANT NWA FOOD BANK, Employer RESPONDENT SUMMIT CONSULTING, LLC, Carrier RESPONDENT OPINION FILED JULY 18, 2024 Hearing before ADMINISTRATIVE LAW JUDGE ERIC PAUL WELLS in Springdale, Washington County, Arkansas. Claimant rep...","fetched_at":"2026-05-19T22:51:35.043Z","links":{"html":"/opinions/alj-H104701-2024-07-18","pdf":"https://www.labor.arkansas.gov/wp-content/uploads/HARRISON_JACK_H104701_20240718.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}