Cite as 2017 Ark. App. 210

ARKANSAS COURT OF APPEALS

DIVISION I 

No. CV-16-143

BRIAN O. BIRTCHER

APPELLANT

V.

MENA WATER UTILITIES, 

ARKANSAS MUNICIPAL LEAGUE, 

AND DEATH & PERMANENT TOTAL 

DISABILITY TRUST FUND

APPELLEES

Opinion Delivered: April 5, 2017

APPEAL FROM THE ARKANSAS 

WORKERS’ COMPENSATION 

COMMISSION [NO. G305958] 

 

AFFIRMED

KENNETH S. HIXSON, Judge

Appellant Brian O. Birtcher sustained admittedly compensable injuries to his head 

and his left leg while working for appellee Mena Water Utilities on July 28, 2013. Mena 

Water Utilities covered the medical treatment associated with the injuries and accepted a 

thirty-three percent permanent anatomical impairment rating for neurologic impairments 

associated with traumatic dissection of the left vertebral artery and a stroke. Although Mena 

Water Utilities admitted that it was responsible for some degree of permanent partial wageloss benefits, it controverted Mr. Birtcher’s claim that he was permanently and totally 

disabled. 

After a hearing, the Workers’ Compensation Commission denied Mr. Birtcher’s 

claim for permanent and total disability benefits. The Commission did, however, award

fifty-percent wage-loss disability over and above Mr. Birtcher’s permanent anatomical 

impairment rating. Mr. Birtcher now appeals, arguing that the Commission’s decision 
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2 

denying his claim for permanent and total disability benefits was not supported by substantial 

evidence. We affirm. 

Permanent total disability is defined by statute as the inability, because of 

compensable injury or occupational disease, to earn any meaningful wages in the same or 

other employment. Ark. Code Ann. § 11-9-519(e)(1) (Repl. 2012). The employee bears 

the burden of proving the inability to earn any meaningful wage. Ark. Code Ann. § 11-9-

519(e)(2). In considering claims for permanent partial disability benefits in excess of the 

percentage of permanent physical impairment, the Commission may take into account such 

factors as the employee’s age, education, work experience, and other matters reasonably 

expected to affect his or her future earning capacity. Ark. Code Ann. § 11-9-522(b)(1). 

The wage-loss factor is the extent to which a compensable injury has affected the claimant’s 

ability to earn a livelihood. Thompson v. Mountain Home Good Samaritan Vill., 2014 Ark. 

App. 493, 442 S.W.3d 873.

Our court views the evidence in a light most favorable to the Commission’s decision 

and affirms the decision if it is supported by substantial evidence. Nichols v. Micro Plastics, 

Inc., 2015 Ark. App. 134. Substantial evidence exists if reasonable minds could reach the 

Commission’s conclusion. Id. When the Commission denies a claim because of the 

claimant’s failure to meet his burden of proof, the substantial-evidence standard of review 

requires that we affirm the Commission’s decision if it displays a substantial basis for the 

denial of relief. Martin Charcoal, Inc. v. Britt, 102 Ark. App. 252, 284 S.W.3d 91 (2008). It 

is the Commission’s duty, not ours, to make credibility determinations, to weigh the 

evidence, and to resolve conflicts in the medical testimony. Id. 
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3 

Mr. Birtcher testified that he was forty-two years old at the time of the hearing and

that he lived in Rocky, Arkansas, which is about eight miles west of Mena. His past 

employment included working as a drilling rig operator, deputy sheriff, bouncer, and 

machine operator at a poultry plant. Mr. Birtcher began working on the sewer-maintenance 

crew for Mena Water Utilities in 2006. 

While working for Mena Water Utilities on July 28, 2013, Mr. Birtcher was 

assaulted by a man and his wife while he was attempting to disconnect their water. 

According to Mr. Birtcher, the man’s wife weighed 300 pounds and she kicked him in the 

head, stomped on his leg, jumped on his back, and jerked his head around. 

Mr. Birtcher went to the emergency room that day and was diagnosed with a broken 

left leg. Mr. Birtcher was also experiencing dizziness, headaches, and nausea as a result of 

the attack, and he came under the care of a neurologist, Dr. Stephen F. Shafizadeh. 

Subsequent testing confirmed that Mr. Birtcher had suffered a left vertebral artery dissection 

and a brain stem stroke. Mr. Birtcher’s problems included difficulty with swallowing, 

numbness in his extremities, and vertigo. 

 On October 9, 2013, Dr. Shafizadeh reported: 

With regard to [Mr. Birtcher] returning to work, I instructed him that he could 

return to work as long as work had limited risk. As such, I recommend to him to 

have a “desk job.” There were no limitations if he was to have a desk job at his same 

company that he worked at before. (Emphasis added.) 

On January 8, 2014, Dr. Shafizadeh reported: 

With regards to returning to work, I, again, reviewed with the patient with his 

representative in the room that I do not do disability assessments. In brief, however, 

I relayed to him that given his decreased sensation of the right hand, right leg, and 

alterations in vision, I do not recommend him to do any machinery or any driving 

at work or otherwise. I also recommended to him that physically he could return to work as 
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4 

long as it was a desk job and he was not asked to do work that would put him at harm if he 

fell or was involved in any machinery. These were generalized recommendations, and I 

relayed to him that I do not do specific recommendations in this kind of setting as 

there are innumerable situations which could include or exclude the above 

recommendations. (Emphasis added.) 

A return-to-work permit dated January 8, 2014, indicated that Mr. Birtcher could return to 

work with the restrictions, “no machinery, light duty, no driving.” Mr. Birtcher 

subsequently returned to work for Mena Water Utilities at light duty.

On August 28, 2014, Dr. Scott W.F. Carle performed an independent medical 

examination of Mr. Birtcher. Dr. Carle assigned a thirty-three percent permanent partial 

impairment rating as a result of Mr. Birtcher’s compensable neurologic impairments. With 

respect to Mr. Birtcher’s ability to work, Dr. Carle gave the following assessment: 

The claimant has had specific direction not to engage in activity that is beyond 

a “desk job” by his attending neurosurgeon. Subsequent to his current functional status 

pertaining to work ability and his apparent risk associated with engaging in activity, the 

following work class recommendations are made and should be considered permanent in 

duration.

The claimant would not be considered eligible for Commercial Vehicle 

Operation under the DOT due to his persistent symptoms of vertigo with a 

neurologic basis. Subsequent to that, he should also engage only in ground level 

work. He should not lift, push or pull beyond 20 pounds of force occasionally to 

move objects. He should not exceed 10 pounds of force on a frequent basis and no 

more than negligible force constantly. He should not operate dangerous machinery 

at work such as a backhoe or forklift. 

A job description is available for review. There exists documentation that the 

claimant has been trained to work as a billing clerk and other light duty office work. 

He will also be given the opportunity to go with contractors to identify meter 

locations. Duties for that will include “riding and communicating.” The claimant 

would appear to be able to do this job as described and would be of no direct threat of imminent 

harm to others or himself by engaging in this type of work activity. (Emphasis added.) 

Mr. Birtcher continued working for Mena Water Utilities at light duty.

Mr. Birtcher testified that, while he was working light duty for Mena Water Utilities, 

he worked an eight-hour day in the office. He stated that he did what was asked of him. 
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Roddy Strother, Mr. Birtcher’s coworker, testified that he observed Mr. Birtcher in 

the workplace. Mr. Strother stated that, after Mr. Birtcher sustained his injuries, 

Mr. Birtcher worked at a slower pace and could not perform all of his former duties. 

Mr. Strother testified that Mr. Birtcher’s light-duty jobs included cleaning, painting, and 

rearranging the inventory. 

Larry Gross, the maintenance supervisor for Mena Water Utilities, testified that the 

sewer maintenance job required heavy labor including lifting as much as 50−100 pounds. 

Mr. Gross stated that when Mr. Birtcher was returned to light-duty work he could no 

longer do that type of work, so he would find things for Mr. Birtcher to do around the 

office. Mr. Gross testified that Mr. Birtcher was able to sweep, mop, and help with 

paperwork, and that Mr. Birtcher did a good job at what he was asked to do. However, 

Mr. Gross stated that working in the office was never meant to be a permanent solution for 

Mr. Birtcher. On October 1, 2014, Mena Water Utilities terminated Mr. Birtcher’s 

employment, with the stated reason being that it no longer had a position for him within 

the permanent restrictions imposed by Dr. Carle. 

On October 24, 2014, Mr. Birtcher met with a vocational-rehabilitation counselor, 

Heather Taylor, to complete a vocational-rehabilitation assessment. Ms. Taylor reported: 

Mr. Birtcher sustained several injuries as a result of his work accident. He has reached 

maximum medical improvement, and has been released to return to the workforce 

with permanent restrictions. Mr. Birtcher reported that he very much would like to 

return to the workforce as soon as possible, and stated he is open to trying just about 

any job he physically would be able to perform. Mr. Birtcher acquired a few skills 

during his work history, but many of the jobs he performed in the past are beyond 

his current permanent restrictions; therefore, he likely would not be able to pursue 

similar occupations. However, there likely are other jobs in his labor market area 

that he should be able to perform. Mr. Birtcher reported that he would be interested 

in job search assistance if that was available to him. 
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Ms. Taylor identified two potential jobs for Mr. Birtcher in Mena—one as a wireless 

sales representative and the other as a merchandiser for Frito Lay. She also identified 

numerous job openings in other locations in the area, including DeQueen, Waldron, and 

Poteau, Oklahoma. Among these jobs were an administrative assistant, business office 

representative, dispatcher, and registration clerk. Mr. Birtcher pursued some, but not all, of 

the jobs identified by Ms. Taylor, and he also looked for work on his own, but he had been 

unsuccessful in obtaining employment.

Ms. Taylor testified that she was not able to find many suitable jobs in Mena.

Ms. Taylor further stated that, due to Mr. Birtcher’s restrictions, he was going to have to 

find a job that he had not done before. She stated that Mena is a competitive market place 

and that almost anyone who applied for a job there would be more qualified than 

Mr. Birtcher because he lacks the skill sets that other applicants may have.

Mr. Birtcher stated that it was his understanding that he would be on blood thinners 

for the rest of his life and that if he overexerted himself it could result in sudden death. 

Mr. Birtcher stated that he had unsuccessfully looked for some less strenuous jobs in Mena. 

He explained that he did not apply for work in DeQueen, Waldron, or Poteau, because 

those towns are about an hour away from home and it did not make sense to drive that 

distance for a job that paid only eight to ten dollars an hour. Mr. Birtcher stated that in 

Mena, a town of only about 5000 people, “there is not a lot going on” and that work is 

difficult to find. Mr. Birtcher testified that he is able to drive, do household chores, and 

cook meals.
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Mr. Birtcher’s sole argument on appeal is that the Commission’s decision denying 

his claim for permanent and total disability benefits was not supported by substantial 

evidence. Mr. Birtcher asserts that he has worked physically demanding jobs his entire work 

life, and that the undisputed evidence showed that he can no longer perform any of his 

previous occupations. Mr. Birtcher further asserts that he possesses only sixth-grade math 

ability and seventh-grade spelling ability, and that he also lacks computer skills, which makes 

him unqualified for a desk job. Given the limited employment opportunities in Mena, 

Mr. Birtcher contends that it was unrealistic to speculate that any employer there would 

hire him. Mr. Birtcher also asserts that, due to his vertigo and inability to drive long 

distances, he would be unable to drive to a job that is an hour from his home. Mr. Birtcher 

argues that, because he is no longer able to earn any meaningful wages as a result of his 

compensable injury, he should have been awarded permanent and total disability benefits. 

The issue here is not whether the appellate court might have reached a different 

result from the Commission; if reasonable minds could reach the result found by the 

Commission, the appellate court must affirm the decision. Kimbell v. Ass’n of Rehab Indus. 

& Bus. Companion Prop. & Cas., 366 Ark. 297, 235 S.W.3d 499 (2006). Where the 

Commission denies a claim because of the claimant’s failure to meet his burden of proof, 

the substantial-evidence standard of review requires that we affirm if the Commission’s 

decision displays a substantial basis for the denial of relief. Id. 

We hold that the Commission’s decision displays a substantial basis for denying 

Mr. Birtcher’s claim for permanent and total disability benefits. As the Commission found 

in its decision, no physician in this case gave the opinion that Mr. Birtcher was permanently 
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and totally disabled. To the contrary, Dr. Shafizadeh returned Mr. Birtcher to light-duty

work, recommending that Mr. Birtcher could return to work as long as it was a desk job 

and did not put him at risk of harm if he fell or was involved with machinery. Mr. Birtcher 

in fact returned to full-time light-duty work for Mena Water Utilities for a period of ten 

months, performing such tasks as sweeping, mopping, rearranging inventory, and helping 

with paperwork. Dr. Carle agreed that Mr. Birtcher could perform a light-duty job, 

reporting that Mr. Birtcher could engage in ground-level work that did not require him to 

lift, push, or pull more than twenty pounds, exceed ten pounds of force on a frequent basis, 

or operate dangerous machinery. Dr. Carle also reported that, although Mr. Birtcher should 

not drive commercially, he is able to drive a car. 

 Mr. Birtcher, now age forty-four, is relatively young, and he acknowledged in his 

testimony that he is able to drive, perform household chores, and cook for himself. 

Mr. Birtcher graduated from high school and attended one year of community college. A 

vocational-rehabilitation assessment showed that he has a sixth-grade math capability, 

seventh-grade spelling ability, ninth-grade word-reading ability, and above a twelfth-grade 

level of sentence comprehension. The vocational counselor, Ms. Taylor, identified 

numerous potential jobs for Mr. Birtcher in the area, and two potential jobs in Mena that 

were not physically demanding. Although Mr. Birtcher’s work restrictions prohibited him 

from returning to his previous jobs, we hold on this record that the Commission did not 

err in concluding that Mr. Birtcher failed to prove the inability to earn any meaningful 

wages as a result of his compensable injury. Therefore, we affirm the Commission’s finding 
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that Mr. Birtcher was entitled to fifty-percent wage loss but that he was not permanently 

and totally disabled.1

Finally, we acknowledge that, as part of Mr. Birtcher’s argument, he urges this court 

to take this opportunity to clarify that a claimant’s burden of proof on his inability to earn 

any meaningful wages in the same or other employment is limited to actual jobs in his own 

county or labor-market area. However, we observe that “permanent total disability” as 

defined by our legislature makes no provision for whether employment is available in any 

particular geographical area, but instead provides that the claimant must prove the inability 

to earn any meaningful wages because of the compensable injury. See Ark. Code Ann. § 

11-9-519(e)(1). Moreover, pursuant to Ark. Code Ann. § 11-9-704(c)(3), we are required 

to construe the provisions of the Workers’ Compensation Act strictly. The legislature 

expressed the “General Assembly’s intent” in the Workers’ Compensation Act of 1993 

when it declared that, in the future, if “the scope of the workers’ compensation statutes 

need to be liberalized, broadened, or narrowed, those things shall be addressed by the 

General Assembly and should not be done by administrative law judges, the Workers’ 

Compensation Commission, or the courts.” Ark. Code Ann. § 11-9-1001. 

 1

In Mr. Birtcher’s brief, he claims that this case is “strikingly similar” to McDonald v. 

Batesville Poultry Equipment, 90 Ark. App. 435, 206 S.W.3d 908 (2005), which was a case 

where we reversed the Commission’s finding that the claimant was not permanently and 

totally disabled. However, we observe that each of these cases must be decided on its own 

facts and that there are distinguishing factors between McDonald and the present case. In 

McDonald, the claimant had a fifty-percent permanent impairment (as opposed to a thirtythree percent impairment), was illiterate, had a learning disorder, had borderline intellectual 

functioning, and suffered from severe anxiety. Our holding in McDonald does not control 

the outcome of this appeal.
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Even assuming, arguendo, that a claimant’s choice of residence could be considered 

in assessing total disability, the proof in this case showed that there were light-duty jobs 

available in Mr. Birtcher’s area. In addition to potential employment in Mena, job openings 

in his area were identified in Waldron, Arkansas, which is about forty-three miles from 

Mr. Birtcher’s home; DeQueen, Arkansas, which is about fifty-three miles away; and 

Poteau, Oklahoma, which is about fifty-five miles away. Although Mr. Birtcher claims on 

appeal that he could not pursue the jobs identified outside of Mena because of his limited 

driving abilities, this was belied by his testimony. Mr. Birtcher testified that he is able to 

drive around as he desires, and that he had driven 145 miles to Fayetteville, Arkansas, to 

meet with his lawyer and ninety miles to Fort Smith, Arkansas, for the hearing. 

Mr. Birtcher’s sole reason for not applying for any jobs outside of Mena was that, in his 

opinion, it did not make sense economically to drive that distance for those jobs. We 

conclude that, even limiting the scope to appellant’s area, there was substantial evidence that 

Mr. Birtcher failed to prove the inability to earn meaningful wages. 

 Affirmed. 

 GLOVER and BROWN, JJ., agree. 

Hatfield Law Firm, by: Jason M. Hatfield; and Cullen & Co., PLLC, by: Tim J. Cullen, 

for appellant.

Katie Bodenhamer, for appellees.