CLAIM NO. E608110
Before the Arkansas Workers’ Compensation Commission
OPINION FILED FEBRUARY 23, 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.
Decision of administrative law judge: Affirmed as modified.
OPINION AND ORDER
The respondents appeal to the Full Workers’ Compensation Commission an administrative law judge’s opinion filed July 28, 1999. The administrative law judge found that the claimant has a permanent partial impairment in the amount of 8% to the body as a whole, and that the claimant has been rendered permanently and totally disabled. The Full Commission has reviewed the entire record de novo. We find 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%. The Full Commission thus affirms, as modified, the opinion of the administrative law judge.
I. HISTORY
The claimant, age 72, was educated only through the fifth or sixth grade and has somewhat limited reading and writing skills. In addition to raising seven children, the claimant testified, she performed full-time housekeeping duties in hotels and private residences for about 19 years. She eventually became employed with the respondents as a certified nursing assistant in about 1981, after taking a test at a vocational-technical school in Hope, Arkansas. The claimant’s job duties involved direct patient care, feeding, incontinent care, turning, repositioning, lifting, transporting by wheelchair, and bathing. The claimant testified that she sustained a “slipped disc” in a previous work-related incident, which caused her to miss one week of work. The claimant said that she experienced no further problems after this injury.
The parties stipulated that the claimant sustained a compensable injury on June 4, 1996. The claimant testified that she hurt her back while trying to keep a patient from falling after the patient’s shower. The respondents provided prompt medical treatment at Springhill, Louisiana Medical Center on the date of injury, where an x-ray showed spinal degeneration at L4-5. The claimant did not return to work following her compensable injury, and the respondents began paying temporary total disability compensation. Dr. Holladay began treating the claimant on June 6, 1996 and noted that the claimant had been treated for back and left hip pain following the compensable injury. “It had been bothering her for several months,” wrote Dr. Holladay, “however, this week it had bothered her more when she lifted a particular patient.” The doctor diagnosed lumbar muscle strain and degenerative joint disease, and referred the claimant for outpatient physical therapy. On June 10, 1996, Dr. Holladay diagnosed degenerative joint disease and left leg weakness; he arranged an MRI of the lumbar spine, taken June 11, 1996 with the following findings:
Disc spaces appear well maintained, except for narrowing at the L4-5 level and very mild narrowing at the L3-4 level. . . . Other spondylotic change is seen at the L4-5 level manifested by abnormal low signal intensity indicating end-plate sclerosis within the vertebral bodies. . . .
IMPRESSION: Spondylotic change within the lumbar spine, as described above. Large predominantly left paramedian disc herniations at the L3-4 level, majority of which has migrated inferiorly and lies posterior to the fourth lumbar vertebra on the left, effacing the anterior and left side of the thecal sac at this level. In addition, moderate to severe spinal stenosis is seen at the L4-5 level secondary to spondylotic change including ligamentum hypertrophy, along with suggestion of mild central to left paramedian disc herniation at this level.
On July 5, 1996, Dr. Holladay reported that the claimant’s left leg still tired easily, and that she was using a cane to walk; therefore, he recommended an orthopedic or neurosurgery consult. The claimant was discharged from physical therapy on July 12, 1996.
An orthopedic surgeon, Dr. Richard Hilborn, evaluated the claimant on July 18, 1996, and wrote that the claimant was “having a symptomatology of nerve root impingement secondary to disc herniation and spinal stenosis.” A subsequent myelogram and CT scan “demonstrated significant areas of extradural defect at L3-4 and L4-5 secondary to disc protrusions and spinal stenosis.” The claimant underwent a work hardening functional capacity evaluation in November, 1996:
Ms. Anderson gave a valid effort with her Functional Capacity Evaluation (FCE). She does not meet the physical demands of her pre-injury job. Considering Ms. Anderson’s age, I feel that there are 3 options. Option 1: She would need to change job positions and put her in a job that keeps her at or below her tested limitations. Option 2: She would need to go through a physical therapy program at a local facility (transportation is a problem for her to come to SMH) to strengthen her trunk enough to meet her physical job demands. Option 3: She would need to retire. I discussed the options with her and she seemed to want to do Option 2. If this is the option opted for then she would need to be retested for her physical demands level again to determine if they are adequate to meet her job demands.
The record includes an undated Light Duty JobDescription authored by Ms. Elaine Smith, a Columbia HealthCare nursing home administrator. The handwritten job description was purportedly based on the results of the functional capacity evaluation, and it included such activities as passing and feeding individual meal trays, ice and juices, folding towels, carrying messages between staff, and “one-on-one low level activities with room based residents.” The claimant testified that she believed she could perform these kinds of activities, provided that she was allowed to sit. The claimant said she could walk “about a block” until she had to get off her feet. Ms. Smith testified that the claimant did not accept this offer of employment, “She said that she didn’t feel like she was able to do it and she was going to continue going to the doctor.”
Dr. Hilborn wrote on December 10, 1996 that the claimant continued to have some symptomatology of spinal stenosis with nerve root impingement, and “I do not feel that the patient is capable of holding a job at the present time. Surgical decompression might be of some benefit to the patient as far as the relief of her leg pain, but the patient does not want to consider this at this time. Without surgery, I feel that the patient has reached maximum medical improvement.” 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% rating.
The claimant testified that she can no longer perform the duties of a certified nursing assistant, because she is unable to sit or stand for long periods of time. The record does not indicate that the respondents provided a physical therapy program as recommended in the functional capacity evaluation. A vocational counselor, Gay Signoff, met with the claimant in September, 1997. Ms. Signoff reported that the claimant initially expressed a high interest in returning to work but later had second thoughts. Ms. Signoff wrote that the claimant had a long work history and excellent work ethic, but “has reached retirement age and desires only part-time work, if that. This will limit the labor market.” Ms. Signoff recommended a Transferable Skills Analysis and placement assistance, if the claimant desired to return to the work force. Ms. Signoff subsequently located two employers that occasionally hired “companion sitters” and asked the claimant to contact her. In November, 1997, the claimant stated that she had undergone cataract surgery. Ms. Signoff reported on November 24, 1997, “Ms. Anderson indicated that she had decided against trying to return to the workforce. She said that her children promised to help her with her finances, and thus, she had not registered for work and had not pursued the job leads we sent to her. She now considers herself to be retired.” The respondents did not contact the claimant at that time.
Ms. Smith wrote to the claimant nine months later on August 14, 1998 and indicated that the respondents had designed a modified work duty schedule, “specifically that you not lift over 20 lbs., carry not over 10 lbs., and spend approx. 1/3 of each work shift in sitting, standing, and walking, respectively.” Ms. Smith wrote that the claimant would need to meet certain qualifications — “These are that your CNA license be current and in good standing, that you pass a criminal background check that is now mandatory, and provide us with a current health card.” Ms. Smith indicated that the respondents would place the claimant on the work schedule beginning at 6:00 a.m. on Tuesday, August 25; however, she testified that the claimant did not accept this second offer of employment from the respondents.
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 benefitted 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.
On October 9, 1998, Ms. Anderson signed a statement indicating that “I don’t feel I am going to be able to work as a CNA on the modified duty job assignment offered to me by Columbia Healthcare.” The claimant testified that if she attempts to stand for as long as five to ten minutes, her left leg “will lose, like it try to give away on me.”
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. Hearing was held before the Commission on May 5, 1999, at which time the claimant testified that she had fallen on two occasions because of her left leg.
The administrative law judge concluded that there is no evidence that the claimant experienced limitations or restrictions on her physical activity prior to her employment with the respondents. The administrative law judge recognized that the claimant had previously hurt her back but noted that she was off work for only one week. The administrative law judge discussed the original 8% impairment rating assessed by Dr. Hilborn, who had assigned the rating “based upon nerve root impingement which was secondary to the injury.” Dr. Hilborn, an orthopedic surgeon, later modified the impairment rating to 6%, an amount accepted and paid out by the respondents. The administrative law judge preferred the first rating, however, determining that “such impingement did not exist prior to claimant’s June 4, 1996, compensable injury.” The administrative law judge thus opined that the claimant sustained a permanent physical impairment 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. Respondents appeal to the Full Commission.
II. ANATOMICAL IMPAIRMENT
An injured worker must prove by a preponderance of the evidence that she is entitled to an award for a permanent physical impairment. Any determination of the existence or extent of physical impairment shall be supported by objective and measurable physical or mental findings. Ark. Code Ann. § 11-9-704(c)(1) (Supp. 1999). Act 796 of 1993, as codified at Ark. Code Ann. § 11-9-102(5)(F)(ii) Supp. 1999) provides:
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.
“Major cause” means more than fifty percent (50%) of the cause, and a finding of major cause must be established according to the preponderance of the evidence. Ark. Code Ann. § 11-9-102(14) (Supp. 1999).
In the present matter, the claimant argues on appeal that her nerve root impingement did not exist prior to the compensable injury, but that she apparently had degenerative arthritis of the spine. The claimant even testified that she had suffered a “slipped disc” in a previous work-related incident. At the time of the claimant’s admittedly compensable injury on June 4, 1996, Dr. Holladay reported that the claimant had experienced back pain for several months. X-ray showed degenerative change at L4-5, and Dr. Holladay diagnosed lumbar muscle strain and degenerative joint disease. An MRI of the lumbar spine was taken on June 11, 1996. The interpreting radiologist reported degenerative disc narrowing at L3-4 and L4-5, in addition to left-sided disc herniations at both levels. The MRI also suggested disc bulging at L5-S1. All of these abnormalities were considered by the radiologist to be “spondylotic,” that is, degenerative in nature. (Dorland’sIllustrated Medical Dictionary, 28th Edition, defines “lumbar spondylosis” as “degenerative joint disease affecting the lumbar vertebrae and intervertebral discs, causing pain and stiffness, sometimes with sciatic radiation due to nerve root pressure by associated protruding disks or osteophytes.”)
After the claimant was referred to Dr. Hilborn, an orthopedic surgeon, his first impression was “nerve root impingement secondary to disc herniation and spinal stenosis.” It is true that Dr. Hilborn 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.” On April 28, 1997, Dr. Hilborn reviewed his findings, deducted the claimant’s clearly pre-existing degenerative changes, and opined that the claimant’s permanent partial impairment was 6%. The respondents accepted and paid out this rating. In August, 1998, Dr. Hilborn opined that the claimant’s degenerative and arthritic spine changes “were probably 50% or more responsible for her symptomatology and need for treatment.”
The administrative law judge found that the claimant has a permanent partial impairment in the amount of 8% to the body as a whole. The administrative law judge concluded that Dr. Hilborn’s original assignment of 8% was proper, because it was supposedly based on nerve root impingement which “did not exist prior to claimant’s June 4, 1996, compensable injury.” Nevertheless, the respondents correctly point out that Dr. Hilborn later expressly opined that the claimant’s document pre-existing degenerative changes should be deducted, and that the proper anatomical impairment rating for the claimant was 6%. The preponderance of evidence indicates that any “nerve root impingement” the claimant is suffering results from degenerative change as established in the medical records, rather than an acute event. Therefore, the Full Commission reverses the administrative law judge’s finding that the claimant has sustained anatomical impairment in the amount of 8%.
III. WAGE LOSS
The wage loss factor is the extent to which a compensable injury has affected the claimant’s ability to earn a livelihood.Bradley v. Alumax, 50 Ark. App. 13, 899 S.W.2d 850 (1995). Ark. Code Ann. § 11-9-522 provides:
(b)(1) In considering claims for permanent partial disability benefits in excess of the employee’s percentage of permanent impairment, the commission may take into account, in addition to the percentage of permanent physical impairment, such factors as the employee’s age, education, work experience, and other matters reasonably expected to affect his future earning capacity.
(2) However, so long as an employee, subsequent to his injury, has returned to work, has obtained other employment, or has a bona fide and reasonably obtainable offer to be employed at wages equal to or greater than his average weekly wage at the time of the accident, he shall not be entitled to permanent partial disability benefits in excess of the percentage of permanent physical impairment established by a preponderance of the medical testimony and evidence.
(c)(1) The employer or his workers’ compensation insurance carrier shall have the burden of proving the employee’s employment, or the employee’s receipt of a bona fide offer to be employed, at wages equal to or greater than his average weekly wage at the time of the accident.
In the present matter, the Full Commission does not affirm the administrative law judge’s finding that the claimant has been rendered permanently and totally disabled. We are aware that the claimant is age 72, is educated through grade five or six, and may have limited reading and writing skills. The claimant sustained a compensable injury while working for the respondents in June, 1996, an injury diagnosed as lumbar muscle strain and degenerative joint disease. The claimant was unable to return to work for the respondents following her compensable injury. However, a functional capacity evaluation did not rule out future employment. It was suggested that the claimant would need to undergo additional physical therapy in order to strengthen her trunk, so that she could meet her physical job demands. Dr. Hilborn was skeptical that the claimant could return to any type of gainful employment, but he found it possible that the claimant could attempt to return to some type of work.
In September, 1997, a vocational counselor located at least two employers who were interested in hiring the claimant as a “companion sitter,” a position which presumably would not call for physical work. However, the claimant indicated to Ms. Signoff had decided against trying out one of these jobs and considered herself to be retired. Although the claimant’s desire at this stage in life to withdraw from the work force may be understandable, the claimant’s lack of interest in finding work impedes our assessment of her loss of earning capacity. City ofFayetteville v. Guess, 10 Ark. App. 313, 663 S.W.2d 946 (1984). In considering the claimant’s physical impairment, age, education, work experience, and all other matters properly before the Full Commission, we find that the claimant has sustained wage loss disability in the amount of 50%.
In awarding wage loss disability, the Full Commission finds that the respondents failed to establish a valid defense pursuant to the provisions of Ark. Code Ann. § 11-9-522(2)(c)(1). The claimant’s job duties involved direct patient care, feeding, incontinent care, turning, repositioning, lifting, transporting, and bathing. After the injury, the claimant needed a cane in order to walk, a requirement that certainly impeded her ability to perform her physically demanding work for the respondents. The claimant underwent a work hardening/functional capacity evaluation, after which it was recommended that she go through a physical therapy program to facilitate her reentry into the workforce. The respondents did not provide such a program. Rather, an administrator authored a handwritten job description, despite the treating physician’s feeling that the claimant was incapable of holding a job.
The claimant testified that she can neither sit nor stand for lengthy periods. The record indicates that she underwent cataract surgery at about the time Ms. Signoff was attempting to locate alternate employment. Nine months later, without consulting the treating physician, the respondents came up with a new list of job duties for the claimant. In addition, the respondents were now requiring the claimant to upgrade her CNA license, provide a current health card, and even pass a criminal background check. In August, 1998, Dr. Hilborn again stated his opinion that the claimant was “probably not employable” with the respondents. We therefore find that the respondents failed to prove that the claimant had a bona fide and reasonably obtainable offer after her injury to be employed at wages equal to or greater than her average weekly wage at the time of the accident.
IV. CONCLUSION
Accordingly, based on our de novo review of the entire record, and for the reasons discussed herein, the Full Commission finds 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%. We thus affirm, as modified, the opinion of the administrative law judge.
All accrued benefits shall be paid in a lump sum without discount and with interest thereon at the lawful rate from the date of the administrative law judge’s decision in accordance with Ark. Code Ann. § 11-9-809 (Repl. 1996).
For prevailing in part on this appeal before the Full Commission, claimant’s attorney is hereby awarded an additional attorney’s fee in the amount of $250.00 in accordance with Ark. Code Ann. § 11-9-715(b) (Repl. 1996).
IT IS SO ORDERED.
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ELDON F. COFFMAN, Chairman
Commissioner Humphrey concurs.
Commissioner Wilson dissents.
DISSENTING OPINION
I must respectfully dissent from the principal opinion finding that respondent did not prevail on its affirmative defense of extending a bona fide and reasonably obtainable offer of employment to claimant.
It is my opinion that respondent established its defense under Ark. Code Ann. Sec. 11-9-522(b). This section provides that if a respondent makes a bona fide and reasonably obtainable offer of employment to a claimant, then the claimant is not entitled to benefits in excess of the physical impairment rating.
The record reveals that respondent’s nursing home administrator, Elaine Smith, testified that she offered claimant a position as a certified nurse’s assistant, with duties modified to comply with the restrictions identified in her functional capacity evaluation, orally in 1996 and by certified letter in August 1998. In 1996, claimant indicated that she did not think she could return to work, and in 1998 she completed a statement that she refused the offer of employment. Smith requested, but did not require, that claimant complete the statement, so that Smith could close out her file on the matter.
If claimant had accepted the modified CNA position, her wages would have been equal to or greater than her wages at the time of her injury. Smith testified that the modified CNA position would be available as long as it was necessary to employ claimant, that claimant, as a modified (light-duty) CNA, would not be at higher risk in a layoff situation than a regular duty CNA, and that the duties which claimant would have performed in the modified CNA position were duties required to be performed by some respondent employee on a daily basis.
In a case very similar to the current claim, Johnsonv. General Dynamics, 46 Ark. App. 188, 878 S.W.2d 411 (1994), the Court of Appeals affirmed the Commission’s denial of wage loss benefits, based upon her receipt of a bona fide and reasonably obtainable offer to be employed at wages equal to or greater than her average weekly wage at the time appellant last worked. In a letter dated July 29, 1992, the respondent stated that appellee had several positions open to appellant which complied with the restrictions placed upon her by her physician. In that same letter, it was requested that appellant contact respondent to get back to work, which she did not do. The respondent put on evidence that, had the claimant reported back to work as scheduled, she would have earned the same wage that she was earning at the time of her departure. See also Newman v.Crestpark Retirement Inn, Full Commission Opinion Filed September 14, 1998 (WCC No. E418166) (the claimant was not disqualified from receiving wage loss disability benefits pursuant to Ark. Code Ann. § 11-9-522(b)(2) because the positions offered the claimant were not intended to be a permanent return to work, but were temporary in nature, intended only to facilitate a return to regular duties).
Accordingly, for those reasons set forth herein, I find that Ark. Code. Ann. § 11-9-522 operates to bar claimant from receiving any benefits over and above her physical impairment rating even though she may have sustained some wage loss. Respondent offered claimant a bona fide position on light duty which was within her restrictions. Claimant voluntarily refused this bona fide offer of employment. Consequently, I find that respondent is not liable for benefits in excess of claimant’s physical impairment rating. Therefore, I respectfully dissent from the majority opinion.
__________________________ MIKE WILSON, Commissioner