ANDERSON v. COLUMBIA HEALTH CARE, 2000 AWCC 114


CLAIM NO. E608110

LETHA ANDERSON, EMPLOYEE, CLAIMANT v. COLUMBIA HEALTH CARE, INC., EMPLOYER, RESPONDENT and CANNON COCHRAN MANAGEMENT SERVICE, INSURANCE CARRIER, RESPONDENT

Before the Arkansas Workers’ Compensation Commission
ORDER FILED APRIL 27, 2000

Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.

Claimant represented by the HONORABLE FLOYD M. THOMAS, JR., Attorney at Law, El Dorado, Arkansas.

Respondents represented by the HONORABLE TERRY D. LUCY, Attorney at Law, Little Rock, Arkansas.

ORDER
In the above-styled matter, the respondents move the Full Workers’ Compensation Commission to reconsider our opinion and order filed February 23, 2000. In said opinion and order, the Full Commission found that the claimant has sustained wage loss disability in the amount of 50%. After reviewing the respondents’ motion for reconsideration, the claimant’s lack of response thereto, and all other matters properly before us, the Full Commission grants the respondents’ motion. The Full Commission has reconsidered our prior opinion and order, and we do not disturb our finding that the claimant has sustained wage loss disability in the amount of 50%. The Full Commission finds that the claimant has proved by a preponderance of the evidence that her compensable injury is the major cause of her wage loss disability, pursuant to the provisions of Act 796 of 1993.

Letha Anderson, age 72, sustained an admittedly-compensable injury to her back on June 4, 1996. An x-ray taken on the date of injury showed spinal degeneration at L4-5, and the claimant was diagnosed with lumbar muscle strain and degenerative joint/disc disease. The respondents provided medical treatment and temporary total disability compensation. A lumbar MRI was taken June 11, 1996. The resulting impression was spondylotic change and paramedian disc herniations within the lumbar spine at L3-4 and L4-5. A myelogram and CT scan taken in July, 1996 demonstrated “significant areas of extradural defect at L3-4 and L4-5 secondary to disc protrusions and spinal stenosis.”

A work-hardening functional capacity evaluation performed in November, 1996 indicated that Ms. Anderson did not meet the physical demands of her pre-injury work for the respondents. Dr. Richard Hilborn, the claimant’s primary physician, wrote in December, 1996 that the claimant continued to experience symptoms following her accidental workplace injury, and opined that the claimant was incapable of holding a job. In March, 1997, Dr. Hilborn opined that the claimant had suffered an 8% whole person impairment, but he revised the impairment rating on April 28, 1997:

Assuming that the degenerative changes in the patient’s lumbar spine predated her injury, I feel that the degenerative changes can be deducted, and that patient’s partial permanent impairment would be 6% to the body.

The respondents accepted and paid the 6% permanent physical impairment rating.

Dr. Hilborn corresponded with the respondents on August 31, 1998:

At the time of Ms. Anderson’s last visit with me on December 10, 1997, it was my feeling that Letha Anderson was incapable of returning to work at her preinjury job. I felt that Ms. Anderson could possibly return to some type of work within the limitations of the functional capacity evaluation, but was, for all practical purposes, probably not employable. I do not feel that the patient undergoing a work hardening program would have benefited the patient in returning her to full or light duty work. It is my feeling that Ms. Anderson’s degenerative and arthritic spine changes were probably 50% or more responsible for her symptomatology and need for treatment.

Ms. Anderson claimed entitlement to additional worker’s compensation, contending that she had sustained wage loss disability exceeding her permanent physical impairment, and that she was in fact permanently totally disabled. The respondents contended that the claimant’s degenerative spinal condition was the major cause of any permanent disability she had sustained. The respondents also contended that the claimant had twice refused offers of light-duty employment within her physical restrictions.

In an opinion filed July 28, 1999, an administrative law judge found that the claimant had sustained a permanent physical impairment in the amount of 8% to the body as a whole, and that the claimant’s severe physical limitations had rendered her permanently and totally disabled from engaging in gainful employment. The respondents appealed to the Full Commission, which affirmed as modified the opinion of the administrative law judge. The Full Commission found that the claimant has sustained an anatomical impairment in the amount of 6% to the body as a whole, and that the claimant has sustained wage-loss disability in the amount of 50%.

In assessing Ms. Anderson’s amount of permanent physical impairment, the Full Commission cited Act 796 of 1993, as codified at Ark. Code Ann. § 11-9-102(5)(F)(ii) (Supp. 1999):

Permanent benefits shall be awarded only upon a determination that the compensable injury was the major cause of the disability or impairment. If any compensable injury combines with a preexisting disease or condition or the natural process of aging to cause or prolong disability or a need for treatment, permanent benefits shall be payable for the resultant condition only if the compensable injury is the major cause of the permanent disability or need for treatment.

We noted that “major cause” means more than 50% of the cause, and that a finding of major cause must be established according to the preponderance of the evidence, according to Ark. Code Ann. § 11-9-102(14).

The Full Commission discussed that Dr. Hilborn had initially assessed an anatomical impairment rating of 8%, which he based in part on “nerve root impingement that appears to have developed secondary to her injury.” Later, however, Dr. Hilborn reviewed his findings, deducted the claimant’s pre-existing degenerative changes, and opined that the claimant’s permanent partial impairment was 6%. The respondents accepted and paid out this rating. In reversing the administrative law judge’s award of 8% and finding that the proper rating was 6%, we determined from a preponderance of the evidence that any “nerve root impingement” was the result of degenerative change rather than an acute event.

In discussing the wage-loss factor, the Full Commission cited Ark. Code Ann. § 11-9-522, which provides the factors to consider in assessing wage loss but disallows such benefits when the employer has tendered a bona fide and reasonably obtainable job offer equal to or greater than the claimant’s average weekly wage at the time of the accident. We found that the claimant had not been rendered permanently and totally disabled but was capable of gainful employment. The claimant was not interested in finding work, impeding our assessment of wage loss. The Full Commission thus found that the claimant had sustained wage loss disability in the amount of 50%. We also found that the respondents had failed to establish a valid defense pursuant to the provisions of Ark. Code Ann. § 11-9-522.

The Full Commission accordingly found that the claimant has sustained a permanent partial anatomical impairment in the amount of 6%, and that the claimant has sustained wage loss disability in the amount of 50%. The respondents have appealed to the Arkansas Court of Appeals, contending that the Full Workers’ Compensation Commission erred in finding that the claimant was entitled to wage-loss disability benefits. In addition, the respondents move the Full Commission for reconsideration.

The respondents state that in our previous opinion and order in the present matter, the Full Commission noted their contention that the claimant’s degenerative spinal condition was the major cause of her permanent disability, and their contention that the claimant had twice refused allegedly bona fide offers of light employment within her physical restrictions. The respondents state that in assessing wage loss disability, the Full Commission addressed only the issue of the respondents’ defense under Ark. Code Ann. § 11-9-522. The respondents assert that we did not make findings as to whether the compensable injury was the “major cause” of the claimant’s wage-loss disability, pursuant to Ark. Code Ann. § 11-9-102(5)(F)(ii).

The respondents point out the Full Commission’s recognition that the claimant had a pre-existing degenerative condition. The respondents also quote a sentence from Dr. Hilborn’s August 31, 1998 opinion, that the claimant’s arthritic and degenerative spine changes “were probably more than 50% responsible for her symptomatology and need for treatment.” They state:

The Respondents are aware that the Claimant had no apparent disability associated with her degenerative changes prior to June 4, 1996. However, the Respondents would respectfully point out that Ark. Code Ann. § 11-9-102(5). . . is applicable where a compensable injury combines with a pre-existing disease or the natural process of aging to cause or prolong a disability. Accordingly, it is factually and legally inconclusive that no disability or other limitation existed prior to June 4, 1996. Even so, the Claimant had actually been symptomatic for several months prior to June, 1996, and essentially all of her radiographic findings have been characterized as “spondylotic” or degenerative changes. Finally, Dr. Hilborn has expressly stated that said changes are at least 50% responsible for the Claimant’s actual symptoms. Given these circumstances, the Respondents maintain that the Claimant’s present disability, in its entirety, is by definition non-compensable under Act 796 of 1993.

The respondents served their motion to the claimant’s attorney on March 13, 2000. The Clerk of the Commission notified both parties on March 21, 2000 that she had received the respondents’ filings, and that the matter had been placed on the Full Commission’s motion docket of April 5, 2000. There has been no response from the claimant or her attorney.

The respondents continue to maintain that the claimant’s compensable injury has combined with either the natural process of aging or a preexisting condition “to cause or prolong such disability as she may have, and that her compensable injury is not more than 50% responsible for the onset of said disability.”

In finding that the claimant has sustained an anatomical impairment in the amount of 6% to the body as a whole, the Full Commission discussed that “Permanent benefits shall be awarded only upon a determination that the compensable injury was the major cause of the disability or impairment.” See, Ark. Code Ann. § 11-9-102(5)(F)(ii) (Supp. 1999). The respondents do not appeal the Full Commission’s finding and in fact accepted and paid the 6% impairment rating. Therefore, it appears that the respondents are referring to wage-loss disability in arguing that Ms. Anderson’s compensable injury “is not more than 50% responsible for the onset of said disability.”

Although the Full Commission recognizes that the claimant had a preexisting degenerative condition, we also note that she faithfully worked at full wages up until her compensable injury of June 4, 1996. Ms. Anderson began using a cane to walk following her compensable injury, and a subsequent functional capacity evaluation indicated that she could no longer meet the physical demands of her work for the respondents. Dr. Hilborn felt in December, 1996 that the claimant was not capable of holding a job.

Ms. Anderson testified that after her accidental injury she could no longer perform the duties of a certified nursing assistant, which duties she had previously carried out for the respondents for approximately 17 years. In August, 1998, the respondents informed the claimant that in order to receive consideration for “modified work”, she would need to update her professional license, provide a current health card, and even undergo a criminal background check. On August 31, 1998, Dr. Hilborn reiterated his post-injury opinion that Ms. Anderson was, “for all practical purposes, probably not employable.”

It is true that Dr. Hilborn also wrote on August 31, 1998, “It is my feeling that Ms. Anderson’s degenerative and arthritic spine changes were probably 50% or more responsible for her symptomatology and need for treatment.” The respondents interpret Dr. Hilborn’s opinion to mean that the claimant’s wage-loss disability “is by definition non-compensable under Act 796 of 1993.” The Full Commission disagrees. First, we note that Act 796 of 1993 defines “major cause” as “more than fifty percent (50%) of the cause.” Dr. Hilborn felt that Ms. Anderson’s degenerative spinal changes “were probably 50% or more responsible for her symptomatology and need for treatment (our emphasis).” From this record, we decline to interpret Dr. Hilborn’s feeling that the claimant’s degenerative condition was probably 50% or more responsible for her symptomatology and need for treatment to mean that said degeneration was the “major cause,” or “more than fifty percent (50%) of the cause,” of her wage-loss disability. On the contrary, we expressly find that the claimant’s compensable accidental injury was the major cause of her permanent disability.

Accordingly, after granting the respondents’ motion for reconsideration, the Full Commission does not disturb the findings in our February 23, 2000 opinion and order. The Full Commission finds that the claimant has sustained an anatomical impairment in the amount of 6% to the body as a whole, which the respondents have accepted and paid. We find that the claimant has sustained wage loss disability in the amount of 50%, and that the compensable injury was the major cause of the claimant’s permanent disability.

IT IS SO ORDERED.

___________________________
ELDON F. COFFMAN, Chairman

Commissioner Humphrey concurs.

Commissioner Wilson concurs.

CONCURRING OPINION
I agree with the majority opinion, and write separately only for the purpose of restating my original opinion that respondent did prove its affirmative defense of extending a bona fide and reasonably obtainable offer of employment to claimant. Although I find that claimant is barred from receiving any benefits over and above her physical impairment rating pursuant to Ark. Code Ann. §11-9-522(b), I concur with the finding on reconsideration that claimant’s injury resulted in a 50% wage loss disability, and that the appropriate award of permanent partial impairment is 6%.

__________________________ MIKE WILSON, Commissioner