{"id":"full_commission-G802123-2023-03-17","awcc_number":"G802123","decision_date":"2023-03-17","opinion_type":"full_commission","claimant_name":"Francine Murphy","employer_name":"Arkansas Department Of Corrections","title":"MURPHY VS. ARKANSAS DEPARTMENT OF CORRECTIONS AWCC# G802123 MARCH 17, 2023","outcome":"granted","outcome_keywords":["granted:2","denied:1"],"injury_keywords":["back"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/Murphy_Francine_G802123_20230317.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Murphy_Francine_G802123_20230317.pdf","text_length":31555,"full_text":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n \nCLAIM NO.  G802123 \n \nFRANCINE MURPHY, \nEMPLOYEE \n \nCLAIMANT \nARKANSAS DEPARTMENT OF CORRECTIONS,  \nEMPLOYER \n \nRESPONDENT \nPUBLIC EMPLOYEE CLAIMS DIVISION, \nINSURANCE CARRIER/TPA \n \nDEATH & PERMANENT TOTAL \nDISABILITY TRUST FUND \nRESPONDENT NO. 1 \n \n \nRESPONDENT NO. 2  \n  \n      \nOPINION FILED MARCH 17, 2023 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE LAURA BETH YORK, Attorney \nat Law, Little Rock, Arkansas. \n \nRespondents No. 1 represented by the HONORABLE CHARLES H. \nMcLEMORE, JR., Attorney at Law, Little Rock, Arkansas. \n \nRespondents No. 2 represented by the HONORABLE DAVID L. PAKE, \nAttorney at Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Affirmed in part, reversed in part. \n \n \n OPINION AND ORDER \nThe respondents appeal an administrative law judge’s opinion filed \nAugust 23, 2022.  The administrative law judge awarded compensation for \nfacial disfigurement.  The administrative law judge also found that the \nclaimant proved she was permanently and totally disabled.  After reviewing \nthe entire record de novo, the Full Commission affirms the administrative \nlaw judge’s award of compensation for facial disfigurement.  The Full \n\nMURPHY - G802123  2\n  \n \n \nCommission reverses the administrative law judge’s finding that the \nclaimant proved she was permanently totally disabled.     \nI. HISTORY \n Francine Annette Murphy, now age 59, testified that she was a high \nschool graduate.  Ms. Murphy testified that following high school she \nattended vocational-technical training, for a brief time, learning secretarial \nskills.  The claimant then worked at an Assisted Living facility for 12 years.  \nThe claimant described her Assisted Living duties as “Housekeeping, \ncooking, and taking care of the elder (sic).”  The claimant testified that she \nsubsequently became employed with the respondents, Arkansas \nDepartment of Corrections.  The claimant testified on direct examination: \nQ.  And how long were you employed at the Arkansas \nDepartment of Corrections? \nA.  It was 15 years.   \nQ.  Okay.  What was your job at the Arkansas Department of \nCorrections? \nA.  I was a production – Food Production Manager No. 1.   \nQ.  Okay.  What does a Food Production Manager do? \nA.  Supervise inmates, check in and out tools, strip search, \nbed search, just walkin’ the [indiscernible], make sure they’re \ndoin’ their job. \nQ.  Okay. \nA.  Lots of paperwork.... \nQ.  Are you helping with any of the cooking that’s being done? \nA.  Yes.  I would go back and, you know, ‘cause I love to cook \nand I would just try to make the food, you know, edible for the \ninmates and tell ‘em what to put in it and just to make it taste \ngood.... \nQ.  Was there computer work to be done? \nA.  Yes, as far as me havin’ to do my classes on computer.   \n\nMURPHY - G802123  3\n  \n \n \nQ.  Okay.  So you had to take a certain number of classes to \ncontinue working at the prison? \nA.  Yes.  It’s 40 hours per year.   \nQ.  Okay.  And did you then do those classes online while you \nwere at work? \nA.  Yes.   \nQ.  So these are computers that you would use at work? \nA.  Yes.   \n \n The parties stipulated that the employee-employer-carrier \nrelationship existed at all pertinent times, including March 17, 2018.  The \nclaimant testified on direct examination: \n  Q.  Did you trip and fall? \n  A.  Yes. \n  Q.  Okay.  So you were on your way to the chow area? \n  A.  Yes.... \nQ.  What happened to you physically when you tripped and \nfell? \n  A.  I hit the concrete....I went flat face down. \n \n The parties stipulated that the claimant “sustained compensable \ninjuries to her head and left eye” on March 17, 2018.  According to the \nrecord, the claimant treated at Harris Medical Center on March 17, 2018:  \n“Patient presents for evaluation of fall....fell from standing and hit the left \nSOR.  Now with extreme pain in the left eye with loss of vision.”  The \nprimary diagnosis was “Left Globe trauma.”   \n An ophthalmologist performed surgery on March 17, 2018:  “Globe \nexploration and repair of open globe left eye.”  The post-operative diagnosis \nwas “Lens dislocation,” “Ruptured globe of left eye, initial encounter,” and \n“Injury of globe of left eye, initial encounter.” \n\nMURPHY - G802123  4\n  \n \n \n Dr. John D. Pemberton performed surgery on April 3, 2018:  \n“Enucleation with implant and muscles attached, left.  Temporary \ntarsorrhaphy, left.”  The pre- and post-operative diagnosis was “Blind, \npainful phthisical eye.”   \n Dr. Roger L. Green noted on April 18, 2018, “She fell at work on \n3/17/18 and hit her left eye on a cart.  She was seen at Harris Hospital ER \nand transferred to UAMS.  She had surgery on April 3\nrd\n at UAMS to remove \nher eye.  She is not in pain today.  She will need refills on all of her \nmedications.”  Dr. Green reported, “Literacy Assessment:  Never need to \nhave someone help me when I read instructions, pamphlets, or other \nwritten material from my doctor or pharmacy.”   \n Dr. Pemberton performed additional surgery on October 30, 2018:  \n“1.  Removal of orbital implant on the left.  2.  Placement of new implant in \nthe left, size 18 mm Medphor sphere.  3.  Permanent lateral tarsorrhaphy \non the left.  4.  Temporary tarsorrhaphy on the left.”  The pre- and post-\noperative diagnosis was “1.  Complications with orbital implant.  2.  Poor \nfitting of prosthesis.  3.  Anophthalmia on the left.  4.  Lid laxity, left lower \neyelid.”       \n The claimant signed the following note dated April 15, 2019: \nI, Francine Murphy – 28960, will be retiring effective June 1, \n2019.  My last day of employment with the Department of \nCorrection will be May 31, 2019.   \n \n\nMURPHY - G802123  5\n  \n \n \n The claimant testified on direct examination: \nQ.  Now, when your doctor released you and said you’re as \ngood as your gonna get, what happened with your \nemployment with the State of Arkansas? \nA.  Well, I lost all my benefits.  I was told that I was gonna \nhave to take an early retirement or get terminated unless I \nturned 55.  That’s when they offered that to me. \nQ.  Okay.  So you followed the instruction of your employer.  \nIs that correct? \nA.  Yes.   \n \n Dr. Pemberton assessed the following on June 17, 2019: \n1.   Anophthalmia, left eye. \n-    Enucleated after trauma \n-    Doing well, has adapted for ADLs \n-    Prosthesis fitting better.   \n2.   Graves disease. \n-    Has proptosis but no active thyroid eye disease. \n-    Recommend lubricating with tears during day and \nointment at night to limit exposure \n3.    Complication of prosthetic orbit of eye, subsequent                    \nencounter. \n-    Prosthesis fitting better after last revision. \n4.  Thyroid eye disease -Right Eye \n5.  Eyelid retraction, unspecified laterality – Right Eye. \n6.  Hyperopia of both eyes with astigmatism and presbyopia – \nRight Eye. \n \nTears both eyes 4 times daily for life. \nTear ointment bedtime to the right eye only for life. \nSelenium daily. \nMultivitamin daily. \nDecrease smoking. \nMaximum surgical improvement:  will need annual socket \nexam of the left.   \nReturn in about 6 months (around 12/17/2019) for \nComprehensive eye exam.... \n \nDriving:  Best corrected or uncorrected visual acuity in at least \none eye is 20/40 or better:  yes. \n\nMURPHY - G802123  6\n  \n \n \nDiscussed with patient.  Vision worse than 20/40 \n(corrected/uncorrected) in better seeing eye was discussed \nand driving was not recommended and told it did not meet \nstate standards of visual requirement for drivers license.   \nMonocular precautions discussed (yes/no/na:  not applicable):  \nPatient with monocular vision [was] advised to wear protective \neyewear during all activities, in effort to protect the only seeing \neye.  Patient has glasses yes.  Patient given a prescription for \nprotective eyewear yes.   \n \n Dr. Pemberton performed surgery on January 10, 2020:  “Permanent \nTarsorrhaphy right (6mm).”  The pre- and post-operative diagnosis was \n“eyelid retraction upper due to ted, exposure keratopathy.”   \n Dr. Barry D. Baskin provided an Impairment Rating on August 25, \n2020: \nMs. Murphy is a 56-year-old lady from Newport.  She works \nfor the Department of Corrections in the food service at the \nprison in Newport.  She was on the job on 03/17/2018 when \nshe tripped and fell on her face.  She hit her left eyeball and \nhad a significant injury to the left eye.  She lost vision at the \ntime of the fall.  She complained of significant eye pain.  She \nhad preexisting history of Graves’ disease with exophthalmos.  \nShe was initially seen up in Newport and ultimately was \ntransferred to UAMS where she was treated by Dr. John \nPemberton....She underwent several surgeries on her eye \nand ultimately had enucleation of the left eye.  She has had \ntwo prosthetic eyes.  She still with the prosthesis feels like her \neye does not look normal.  She is worried about that a lot and \nhas withdrawn some.  She is trying to deal with it but does \nsocial isolate herself and frequently she states she wears dark \nglasses even when it is not bright outside to cover up her eye.  \nShe is self-conscious about the eye.  She states that her eye \ndoes dry out some.  She uses a lubricant.  She can shut the \neye.  She has also had a surgery unrelated on the right eye by \nDr. Pemberton.  She has complete and total visual loss and \nagain enucleation of the left eye.... \nShe is not working currently.... \n\nMURPHY - G802123  7\n  \n \n \nPHYSICAL EXAMINATION:  Ms. Murphy is a pleasant 5 feet \n7 inches, 210 pound female that is alert and cooperative.  She \nhad dark glasses on.  She does have a prosthetic eye on the \nleft.  She has proptosis bilaterally.  She has a fairly natural \nappearing left eye prosthetic.  She does not completely open \nthe left eye compared to the right.  She does have fairly good \nlid closure on the left.  She has good vision out of the right eye \nper her records and her admission today.  She gets around \nfairly well.  Her gait is normal.  She has trouble with depth \nperception. \n \nIMPRESSION:  Ms. Murphy is a nice lady who presents for an \nimpairment rating today regarding a work fall with the \nDepartment of Corrections that resulted in loss of vision in the \nleft eye and complete enucleation and prosthetic left eye.  She \nhas had three different prostheses.  She has preexisting \nGraves’ disease with hyperthyroidism and exophthalmos.  \nNext, turning to the AMA Guides to the Evaluation of \nPermanent Impairment 4\nth\n Edition using section 8.4 on page \n217-218 and table 6 on page 218, Ms. Murphy has a total loss \nof vision out of her left eye.  This would give her a 25% \nimpairment to the visual system which is equal to a 24% \nimpairment of the whole person.  Ms. Murphy has some \ndegree of disfigurement associated with anxiety and \ndepression.  Turning to page 141-142 of the guides emotional \nor behavioral disturbances [Ms.] Murphy would have a mild \nlimitation of daily social and interpersonal functioning as a \nresult of her perception of disfigurement with her left eye \nenucleation and prosthesis.  This would give her an additional \n10% whole person impairment.  Next, turning to the combined \nvalues chart on page 322, Ms. Murphy’s 24% impairment is \ncombined with her 10% impairment to the whole person to \ngive her a 32% whole person impairment.  [Ms.] Murphy will \ncontinue to need to see Dr. Pemberton for his skills as an \nOculoplastic surgical specialist.  The last records I have from \nDr. Pemberton were dated back to 01/10/2020 when he \nperformed a Tarsorrhaphy of the right eye.  This was \nunrelated to the patient’s left eye injury.   \n \nThis concludes my impairment rating on Ms. Francine \nMurphy.  I appreciate the opportunity to assist in this nice \nlady’s impairment rating today.  If there are any questions \n\nMURPHY - G802123  8\n  \n \n \nregarding this impairment rating I would be happy to address \nthem.  I would note that the impairment rating for emotional \nand behavioral impairment is directly linked to the section on \ndisfigurement which is section 13.4 on page 279 of the \nguides.  My opinions were given within a reasonable degree \nof medical probability based upon my training and experience \nas board certified Physiatrist as well as my review of Ms. \nMurphy’s records and examination of Ms. Murphy today.   \n \n Tanya L. Walker, APRN noted on October 1, 2021 and November \n23, 2021, “Francine A. Murphy is disabled due to the loss of her left eye.  \nThe injury occurred on 3-17-2018.”  A physician signed Ms. Walker’s \nNovember 23, 2021 note.       \nA pre-hearing order was filed on January 26, 2022.  According to the \ntext of the pre-hearing order, the parties agreed to litigate the following \nissues: \n(1) Whether the Claimant is entitled to benefits for facial \ndisfigurement pursuant to Ark. Code Ann. §11-9-524 in \nrelation to her compensable injuries of March 17, 2018; \n(2) Whether the claimant is entitled to permanent and total \ndisability benefits in relation to her compensable injuries of \nMarch 17, 2018; or, in the alternative, wage loss disability \nbenefits; and, \n(3) Attorney’s fees associated with controverted indemnity \nbenefits.   \n \nTanya Rutherford Owen, Ph.D., a Rehabilitation Services consultant, \ncorresponded with the claimant’s attorney on February 3, 2022: \nAt your request, we have conducted a labor market survey of \nNewport, Arkansas in February 2022.  Please find below the \nfindings from this survey.... \nMs. Murphy’s area of residence Newport, Arkansas was \nreviewed to determine the jobs that exist and their impact on \n\nMURPHY - G802123  9\n  \n \n \nher potential to return to work.  Data reviewed of Jackson \nCounty reflect a civilian labor force of 5,585 with 5,391 \nemployed and 194 unemployed and an unemployment rate of \n3.5%.  This information was obtained from the County Labor \nForce Statistics, Arkansas Counties (December 2021). \nOn February 2, 2022, a review of the labor market in Mr. \nJones’ in Newport, Arkansas was made to identify potential \nreturn to work occupations.... \n \n Ms. Owen wrote that she had located 15 potential jobs for the \nclaimant.  These potential employment opportunities included cashier \nduties, clerical work, retail sales, customer service, housekeeping, fast food \nemployment, manufacturing, teaching, and home health care.      \nA hearing was held on May 27, 2022.  The claimant’s attorney \nexamined Tanya Rutherford Owen: \nQ.  Now, we have what we have marked as Claimant’s Exhibit \nNo. 1, which is a list of the jobs that you provided to us.  Now, \ncan you tell us how you came about the jobs that you \nprovided to us? \nA.  Well, first my assignment was to do a Labor Market \nSurvey, so I have to find out where the person is or what area \nI’m surveying, and I do this, at this point really, all over the \ncountry, but in this case I surveyed Newport, Arkansas, and \nso I need to know the geographic location.  And in this case I \nwasn’t looking for any one specific type of work....In this case \nit’s just a Labor Market Survey; it’s just saying in this area, on \nthis date, which I think we looked at a couple of days in \nFebruary, what jobs were open, and then what were their \nrequirements of those jobs.... \nQ.  So the jobs that you provided in the report that we have \nmarked as Exhibit No. 1, it’s your February 3, 2022 report, are \nthese all the jobs that you found available in Newport, \nArkansas? \nA.  It’s most of what we found on this date....And if you look at \nthis, you start seeing themes of the types of jobs; entry-level \ntypes of jobs, you know, sales cashier types of jobs.  Those \n\nMURPHY - G802123  10\n  \n \n \nare the types of jobs that we found available in this area on \nthis date.... \n \n The respondents’ attorney cross-examined Dr. Owen: \nQ.  I just wanted to ask you, first of all, what date did you meet \nthe claimant, Ms. Francine Murphy? \nA.  I’ve never met Ms. Murphy.   \nQ.  Okay.  Have you reviewed medical records from Ms. \nMurphy? \nA.  I have not.   \nQ.  All right.  What do you know about Ms. Murphy? \nA.  I don’t know anything about Ms. Murphy other than her \nname, that she’s Ms. York’s client, and that she resides in or \nnear Newport, Arkansas.   \nQ.  Okay.  So if I asked you your opinion about whether Ms. \nMurphy can do the jobs that you found on February 3\nrd\n, you \ncouldn’t answer that? \nA.  No, sir, I don’t have enough information to answer that.  \nI’m sorry.... \nQ.  And I noted on this report, these 15 jobs that you found, \nthese were jobs that were open within Newport on that \nparticular date, correct? \nA.  In or around Newport.... \nQ.  Did Ms. Murphy ever contact you about any of these jobs? \nA.  I don’t think so.  I don’t think I’ve ever talked with Ms. \nMurphy.  No, sir.   \n \n An administrative law judge filed an opinion on August 23, 2022.  \nThe administrative law judge found that the claimant proved she was \nentitled to a statutory award for permanent facial disfigurement.  The \nadministrative law judge also found that the claimant proved she was \npermanently and totally disabled.  The respondents appeal to the Full \nCommission. \nII.  ADJUDICATION \n\nMURPHY - G802123  11\n  \n \n \nA.   Disfigurement \nArk. Code Ann. §11-9-524(Repl. 2012) provides: \n(a) The Workers’ Compensation Commission shall award \ncompensation for serious and permanent facial or head \ndisfigurement in a sum not to exceed three thousand five \nhundred dollars ($3,500). \n(b) No award for disfigurement shall be entered until twelve \n(12) months after the injury.   \n \nIn the present matter, an administrative law judge found that the \nclaimant was “entitled to $1,500.00 for facial disfigurement pursuant to Ark. \nCode Ann. §11-9-524.”  The Full Commission affirms this finding.  The \nparties stipulated that the claimant sustained a compensable injury to her \nhead and left eye on March 17, 2018.  The evidence demonstrates that the \nclaimant sustained “Left Globe trauma” resulting from a slip and fall at work \non March 17, 2018.  The compensable injury led to an “enucleation” of the \nclaimant’s left eye, performed by Dr. Pemberton on April 3, 2018.  Dr. \nPemberton performed additional left eye surgery on October 30, 2018 in \npart to place a “new implant” in the claimant’s left orbit.  Dr. Baskin provided \nan Impairment Rating on August 25, 2020.  Dr. Baskin noted that the \nclaimant wore dark glasses and that the claimant was “self-conscious about \nthe eye.”  Dr. Baskin wrote that the claimant “has some degree of \ndisfigurement” after the claimant’s compensable injury and surgery.   \nThe claimant testified on direct examination: \n\nMURPHY - G802123  12\n  \n \n \nQ.  Can you describe to us, in your own words, how the \ndifference – when you look in the mirror, what is the difference \nbetween your left eye and your right eye now? \nA.  Right now this left eye is lower.  This eye just don’t fit well. \nQ.  Now, before this accident were your eyes even level? \nA.  Yes.   \nQ.  After this accident, did – \nA.  It’s a result of all my surgeries.  Yes. \n \n   The Arkansas Court of Appeals has affirmed the Commission’s \naward of disfigurement when a compensable injury was “noticeable” and \n“detracted from a claimant’s appearance.”  See Fayetteville Sch. Dist. v. \nKunzelman, 93 Ark. App. 160, 217 S.W.3d 149 (2005).  Likewise in the \npresent matter, the evidence demonstrates that the compensable injury has \nresulted in a “noticeable” disfigurement which the claimant perceives is a \ndetraction to her appearance.  The Full Commission therefore affirms the \nadministrative law judge’s award of $1,500.00 for facial disfigurement in \naccordance with Ark. Code Ann. §11-9-524(Repl. 2012).   \nB.   Permanent Total Disability \nAn employee who has sustained a scheduled injury shall not be \nentitled to permanent partial disability benefits in excess of the percentage \nof her permanent physical impairment.  McDonald v. Batesville Poultry \nEquip., 90 Ark. App. 435, 206 S.W.3d 908 (2005).  However, an employee \nwho has sustained a scheduled injury may claim entitlement to permanent \ntotal disability benefits.  Id.   \nArk. Code Ann. §11-9-519(Repl. 2012) provides, in pertinent part: \n\nMURPHY - G802123  13\n  \n \n \n(e)(1)  “Permanent total disability” means inability, because of \ncompensable injury or occupational disease, to earn any \nmeaningful wages in the same or other employment.   \n(2)  The burden of proof shall be on the employee to prove \ninability to earn any meaningful wages in the same or other \nemployment.   \n \n The Full Commission reviews an administrative law judge’s opinion \nde novo, and it is the Full Commission’s duty to conduct its own fact-finding \nindependent of that done by the administrative law judge.  Crawford v. Pace \nIndus., 55 Ark. App. 60, 929 S.W.2d 727 (1996).  The Full Commission \nenters its own findings in accordance with the preponderance of the \nevidence.  Tyson Foods, Inc. v. Watkins, 31 Ark. App. 230, 792 S.W.2d 348 \n(1990). \n An administrative law judge found in the present matter, “(2)  The \nClaimant has proven, by a preponderance of the evidence, that she has \nbeen rendered permanently and totally disabled as the result of her \ncompensable left eye injury of March 17, 2018[.]”  The Full Commission \ndoes not affirm this finding.  The Full Commission finds that the claimant did \nnot prove she was permanently totally disabled.   \n The claimant is middle-aged, age 59, and is a high school graduate.  \nThe claimant worked for 12 years at an Assisted Living facility before \nbecoming employed as a Food Production Manager for the respondents, \nArkansas Department of Corrections.  The claimant testified that she was \nemployed with the respondents as a Food Production Manager for 15 \n\nMURPHY - G802123  14\n  \n \n \nyears.  The claimant’s job duties in this capacity included preparation of \nfood and supervision of inmates.  The claimant was at least minimally \ncomputer proficient according to her testimony.  The parties stipulated that \nthe claimant sustained a compensable injury to her left eye on March 17, \n2018.  As the Commission has recognized from the medical evidence, the \ncompensable injury resulted in an enucleation of the claimant’s left eye \nperformed by Dr. Pemberton.   \n The claimant has not attempted to return to appropriate gainful \nemployment since her compensable injury.  The Full Commission again \nnotes that the claimant is at least minimally proficient in use of a computer \naccording to her testimony.  Following enucleation surgery by Dr. \nPemberton, Dr. Green reported on April 18, 2018 was able to read \n“instructions, pamphlets, or other written material.”  The claimant is literate \neven after surgery.  The claimant informed the respondents on April 15, \n2019 that she would be voluntarily retiring effective June 1, 2019.  There is \nno evidence corroborating the claimant’s testimony that the respondents \nforced or encouraged the claimant to retire from gainful employment.  Dr. \nPemberton reported on June 17, 2019 that the claimant was doing well, and \nhad “adapted for ADLs,” that is, Activities of Daily Living.  Dr. Baskin \nassigned the claimant only a 32% whole-person impairment rating on \nAugust 25, 2020.  Dr. Baskin opined that the claimant had only “a mild \n\nMURPHY - G802123  15\n  \n \n \nlimitation of daily social and interpersonal functioning as a result of her \nperception of disfigurement with her left eye enucleation and prosthesis.”  \nDr. Baskin did not opine that the claimant was permanently totally disabled, \nnor did he restrict the claimant’s driving activities.  The Full Commission \ntherefore places minimal evidentiary weight on APRN Tanya Walker’s \nsubsequent opinion that the claimant was “disabled due to the loss of her \nleft eye.”   \n The claimant’s attorney arranged for Rehabilitation Services with \nTanya Rutherford Owen, Ph.D. beginning in February 2022.  As the Full \nCommission has discussed, Dr. Owen identified at least 15 potential job \nopenings for the claimant near the claimant’s home in Newport, Arkansas.  \nThe evidence demonstrates that the claimant did not attempt to follow up on \nany of the jobs identified by Tanya Rutherford Owen.  Dr. Owen’s testimony \ndemonstrates that neither the claimant never contacted her following the \nconsultation report of February 3, 2022.  The Full Commission recognizes \nthe claimant’s testimony the she is greatly restricted in her ability to drive a \nmotor vehicle as a result of the compensable injury, surgery, and resulting \n32% anatomical impairment.  However, the claimant also testified that she \nis physically able to drive at least some distances in the area of Newport, \nArkansas where the claimant resides.  The claimant’s demonstrated lack of \ninterest in returning to work is an impediment to a full assessment of the \n\nMURPHY - G802123  16\n  \n \n \nclaimant’s contention that she is permanently and totally disabled.  Oller v. \nChampion Parts Rebuilders, 5 Ark. App. 307, 635 S.W.2d 276 (1982).  The \nFull Commission is not required to believe the testimony of the claimant or \nany other witness, but may accept and translate into findings of fact only \nthose portions of the testimony it deems worthy of belief.  Johnson v. Hux, \n28 Ark. App. 187, 772 S.W.2d 362 (1989).  In the present matter, with \nregard to her contention that she is permanently totally disabled as a result \nof her compensable scheduled injury, the Full Commission finds that the \nclaimant was not a credible witness.   \n After reviewing the entire record de novo, the Full Commission \naffirms the administrative law judge’s award for facial disfigurement in \naccordance with Ark. Code Ann. §11-9-524(Repl. 2012).  We reiterate that \nthe claimant also sustained permanent anatomical impairment in the \namount of 32%, as assessed by Dr. Baskin.  The evidence demonstrates \nthat the 32% anatomical impairment rating is supported by objective \nmedical findings, comports with the 4\nth\n Edition of the Guides, and that the \ncompensable injury was the major cause of 32% permanent anatomical \nimpairment.  The respondents shall be liable for 32% permanent anatomical \nimpairment in addition to the award for facial disfigurement.  The Full \nCommission reverses the administrative law judge’s finding that the \nclaimant proved she was permanently totally disabled.  The claimant did not \n\nMURPHY - G802123  17\n  \n \n \nprove that she was unable to earn “any meaningful wages in the same or \nother employment” in accordance with Ark. Code Ann. §11-9-519(e)(Repl. \n2012).  The Full Commission denies the respondents’ motion to introduce \n“rebuttal evidence,” that is, evidence purporting to illustrate contentions \nmade by the claimant during her deposition testimony.  Said “rebuttal \nevidence” is not necessary or probative with regard to the Full \nCommission’s de novo review in the present matter. \n The claimant’s attorney is entitled to fees for legal services in \naccordance with Ark. Code Ann. §11-9-715(a)(Repl. 2012).  For prevailing \nin part on appeal, the claimant’s attorney is entitled to an additional fee of \nfive hundred dollars ($500), pursuant to Ark. Code Ann. §11-9-715(b)(Repl. \n2012). \n IT IS SO ORDERED.   \n       \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner \n \n \nCommissioner Mayton concurs and dissents. \nCONCURRING AND DISSENTING OPINION \n The Majority has correctly determined that the claimant has not \nsatisfied her burden of proof that she is permanently and totally disabled; \n\nMURPHY - G802123  18\n  \n \n \nhowever, I cannot agree that she is entitled to benefits for facial \ndisfigurement, nor do I agree that the Majority is correct in applying the \nclaimant’s permanent impairment to the body as a whole. \n The claimant was injured while employed with Arkansas Department \nof Corrections on March 17, 2018 when she fell and struck the left side of \nher face on the floor, resulting in damage to her left eye, which ultimately \nrequired its removal. (Tr., Pp. 33-34). The respondent employer accepted \nthe 100% loss of the claimant’s eye. (Tr., Pp. 36-37).  \n The claimant was first treated at the Harris County Hospital on March \n17, 2018 with findings that were “indicative [of] rupture of the left globe,” \nand her eye was surgically removed on April 3, 2018.  (Cl. Med. Ex., Pp. 10, \n19, 37).  On August 25, 2020, Dr. Barry Baskin examined the claimant and \nassessed an impairment rating of 32% to the body as a whole, as a result of \nthe scheduled injury to her left eye.  Dr. Baskin incorrectly translated the \nloss of the left eye, a scheduled injury, to the body as a whole and assigned \na whole body rating of 24% and based the remainder of the rating on the \nsubjective complaints of the claimant which does not comply with the Act. \n(Cl. Med. Ex., P. 81).  Dr. Baskin stated that the claimant has “mild social \nand interpersonal functioning as a result of her perception of disfigurement \nwith her left eye enucleation and prosthesis,” thereby basing his rating on \nthe claimant’s subjective complaints rather than objective medical findings \n\nMURPHY - G802123  19\n  \n \n \nId. (emphasis added).  Dr. Baskin did not address any facial disfigurement.  \nSee Id. \nAs noted above, the claimant suffered a 100% loss of her left eye, for \nwhich the respondents have accepted compensability. “Any employee \nsuffering a scheduled injury shall not be entitled to permanent partial \ndisability benefits in excess of the percentage of permanent physical \nimpairment . . . . ” Ark. Code Ann. § 11-9-521(g).  It is well settled in this \nState that absent a finding of total disability, a scheduled injury cannot be \napportioned to the body as a whole.  Hill v. White-Rodgers, 10 Ark. App. \n402, 665 S.W.2d 292 (1984).  The applicable statute, Arkansas Code \nAnnotated § 11-9-521(a)(14), states that an enucleated eye, in which there \nwas useful vision, is a scheduled injury for which an employee shall receive \nweekly benefits in the amount of the permanent partial-disability rate \nattributable to the injury for 105 weeks.  Compensation for the permanent \nloss of 80 percent or more of the vision of an eye shall be the same as for \nthe loss of an eye.  Ark. Code Ann. § 11-9-521(c)(1). Multi-Craft Contrs., \nInc. v. Yousey, 2018 Ark. 107, 542 S.W.3d 155 (2018).  Therefore, the \nclaimant’s eye injury must be limited to the scheduled benefits. \nThere is no medical proof of disfigurement.  Ark. Code Ann. § 11-9-\n524 requires serious and permanent facial disfigurement.  The fact that the \nclaimant has a perception of disfigurement as pointed out by Dr. Baskin, \n\nMURPHY - G802123  20\n  \n \n \nwhich is subjective, does not meet her burden of proof and as such benefits \nfor disfigurement should be denied. \nThe statute and case law are clear that when a claimant sustains an \ninjury to a scheduled member, the claimant is limited to the anatomical \nrating assigned for the scheduled member under the Act unless the \nclaimant is permanently and totally disabled.  Since the claimant is not \npermanently and totally disabled, she is limited to 105 weeks of disability \nbenefits for the loss of her eye. \nFor the reasons stated above, I concur that the claimant is not \npermanently and totally disabled and dissent from the findings of the \nMajority that the claimant is entitled to a permanent anatomical impairment \nin the amount of 32% to the body as a whole and benefits for facial \ndisfigurement. \n \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner","preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. G802123 FRANCINE MURPHY, EMPLOYEE CLAIMANT ARKANSAS DEPARTMENT OF CORRECTIONS, EMPLOYER RESPONDENT PUBLIC EMPLOYEE CLAIMS DIVISION, INSURANCE CARRIER/TPA DEATH & PERMANENT TOTAL DISABILITY TRUST FUND","fetched_at":"2026-05-19T22:29:46.545Z","links":{"html":"/opinions/full_commission-G802123-2023-03-17","pdf":"https://labor.arkansas.gov/wp-content/uploads/Murphy_Francine_G802123_20230317.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/"}}