CLAIM NO. E104610
WILSON J. BOUDREAUX, EMPLOYEE, CLAIMANT v. GLI HOLDING CO., EMPLOYER, RESPONDENT NO. 1 and CIGNA INSURANCE CO., CARRIER, RESPONDENT NO. 1 and SECOND INJURY FUND, RESPONDENT NO. 2
Before the Arkansas Workers’ Compensation Commission
OPINION FILED AUGUST 13, 1997
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by DENVER L. THORNTON, Attorney at Law, El Dorado, Arkansas.
Respondent No. 1 represented by BETTY J. DEMORY, Attorney at Law, Little Rock, Arkansas.
Respondent No. 2 represented by DAVID PAKE, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Reversed in part and affirmed in part.
[1] OPINION AND ORDER
[2] Respondent No. 1 appeals from a decision of the Administrative Law Judge filed October 24, 1996 finding that the claimant is permanently and totally disabled. Based upon ourde novo review of the entire record, we find that claimant has failed to prove by a preponderance of the evidence that he is permanently and totally disabled. However, we do find that claimant has proven entitlement to wage loss disability benefits equal to fifty percent (50%) to the body as a whole. With regard to Second Injury Fund liability, we affirm the decision of the Administrative Law Judge.
[3] Claimant sustained an admittedly compensable injury on January 12, 1991, during the course and scope of his employment with respondent No. 1. As a result of claimant’s injury, temporary total disability benefits, medical benefits, and permanent partial disability benefits based upon a ten percent (10%) anatomical impairment rating have been paid. Claimant contends that as a result of his injury, he has been rendered permanently and totally disabled. Respondent No. 1 contends that claimant is not permanently and totally disabled, has failed to prove entitlement over and above the ten percent (10%) physical impairment rating, and, in the alternative, if claimant is entitled to any benefits in excess of his anatomical impairment, it would be the responsibility of the Second Injury Fund, respondent No. 2. The Second Injury Fund, likewise, contends that claimant has not sustained any wage loss over and above the anatomical impairment rating. However, the Second Injury Fund also contends that it is not responsible for any wage loss suffered, if any, since claimant has failed to prove that his prior condition has combined with his current condition to create a greater disability or impairment than claimant has suffered as a result of his most recent condition alone.
[4] The record reveals that claimant has been an employee of Trailways Bus Line, and its predecessor, GLI Holding Company, for numerous years. Claimant has driven a bus or worked in the bus transportation industry for almost twenty-two (22) years. In 1986, claimant sustained an injury to his lower back which resulted in a fusion, at the L5-S1 level. After undergoing a healing period of approximately eighteen (18) months, claimant returned to work with certain restrictions.
[5] Subsequent to claimant’s 1986 injury and prior to returning to work, claimant’s employer Trailways was purchased by GLI Holding Company, respondent No. 1. As an employee of respondent No. 1, claimant sustained two work-related injuries, the first on June 10, 1990, when he sustained an injury to his neck. The second injury occurred on January 12, 1991, when claimant sustained an injury to his lower back. As a result of claimant’s January 12, 1991, injury, claimant has been under the care of numerous medical care providers. Claimant initially initiated treatment under the care of Dr. Walter Creel, a chiropractor. In addition to seeing Dr. Creel, claimant has been treated and examined by Dr. John Patton, a neurosurgeon, Dr. Reaburn Lluwellyn, a neurosurgeon, and Dr. Jim J. Moore, a neurosurgeon. Claimant underwent extensive conservative treatment at the Comprehensive Spine Center under the direction of Dr. John Patton. After completing a regiment of treatment, claimant was assigned a ten percent (10%) physical impairment rating over and above all previous impairment ratings and was found to have reached maximum medical improvement on March 12, 1992.
[6] In determining wage loss disability, the Commission may take into consideration the workers’ age, education, work experience, medical evidence and any other matters which may reasonably be expected to affect the workers’ future earning power. Such other matters are motivation, post-injury income, credibility, demeanor, and a multitude of other factors. Glass v. Edens,
233 Ark. 786,
346 S.W.2d 685 (1961); City of Fayetteville v. Guess,
10 Ark. App. 313,
663 S.W.2d 946 (1984). Curry v. Franklin Electric,
32 Ark. App. 168,
798 S.W.2d 130 (1990). A claimant’s lack of interest in pursuing employment with his employer and negative attitude in looking for work are impediments to our full assessment of wage loss.
[7] The record reflects that claimant has never attempted to return to work in any capacity after reaching maximum medical improvement. Claimant simply lacks the motivation and financial incentive to return to the work force. Around the time claimant reached maximum medical improvement, he began drawing social security disability benefits equalling $971 per month. The record also reflects that in 1987, claimant received two substantial settlement awards, one for his retirement benefits from his previous employer, Trailways, and one from his 1986 workers’ compensation claim. We find that claimant’s financial condition has played a large role in claimant’s lack of motivation in returning to work.
[8] When claimant was released from the Comprehensive Spine Center with a ten percent (10%) anatomical impairment rating, claimant was advised that he “may return to gainful employment.” However, there is no evidence that claimant even attempted to return to gainful employment. At the time of the hearing claimant was only 59 years of age. The record reflects that claimant has a high school education, can read, write and perform simple mathematics. In addition, claimant possesses numerous skills which are transferable into other occupations. As a bus driver, claimant was not only responsible for driving the bus, but he also had to interact with the public on a continuous basis. Claimant’s good communication skills, public relation skills, and reading, writing, and mathematic skills all weigh heavily against a finding of permanent and total disability. With the proper motivation, claimant can transform these skills into new employment.
[9] Moreover, the record reflects that claimant has only received a nominal impairment rating of ten percent (10%) to the body as a whole as a result of his 1991 injury. Claimant has not undergone any type of surgery for his most recent compensable injury, nor is he on any extensive and prolonged medication treatment. Although the claimant did request and receive a TENS unit to help monitor his pain and take the edge off, the record reflects that claimant has not been on any type of prescription pain medication for a number of years, even prior to receiving the TENS unit. Claimant merely takes over the counter pain medication such as Tylenol for any pain he has. We see no reason, especially now that the claimant has received the TENS unit to “take the edge off his pain”, why claimant could not return to the workforce in a light or sedentary capacity. Although claimant’s job restrictions prevent him from returning to his previous job as a bus driver, the record reflects that there is no valid reason why he cannot once again be gainfully employed. The only reasons, which are unacceptable, are claimant’s lack of motivation and negative attitude to return to work and his desire to begin early retirement. Accordingly, based upon our de novo review of the entire record, we that claimant’s inability to return to his former capacity as a bus driver has not rendered claimant permanently and totally disabled but it has affected claimant’s wage earning capacity. When his job restrictions are considered in light of claimant’s many transferable skills, we find that claimant has sustained a wage loss disability equal to fifty percent (50%) to the body as a whole. Therefore, we reverse the decision of the Administrative Law Judge and award wage loss disability benefits accordingly.
[10] With regard to Second Injury Fund liability, we find that respondent No. 1 has failed to prove that the Second Injury Fund has any liability. Mid-State Constr. Co. v. Second Injury Fund,
295 Ark. 1,
746 S.W.2d 539 (1988) sets for the requirements that must be met in order the SIF to have liability. These are as follows:
First, the employee must have suffered a compensable injury at the present place of employment. Second, prior to that injury the employee must have had a permanent partial disability or impairment. Third, the disability or impairment must have combined with the recent compensable injury to produce the current disability status.
[11] The parties concede that the first and second requirement for establishing Second Injury Fund liability has been met. Claimant did sustain a compensable injury while under the employ of respondent No. 1 on January 12, 1991. As a result of that injury, claimant was assigned a ten percent (10%) physical impairment rating. In addition, claimant suffered from a permanent partial disability or impairment as a result of his 1986 injury. However, there is no evidence that claimant’s disability or impairment from his 1986 injury combined with his recent compensable injury to produce claimant’s current disability status.
[12] The Arkansas Supreme Court recently addressed this third injury in Hawkins Construction Co. v. Richard Maxwell and theSecond Injury Fund, ___ Ark. ___, ___ S.W.2d ___ (June 24, 1996). In Hawkins the Supreme Court reversed and remanded a Full Commission opinion which had been affirmed by the Arkansas Court of Appeals which held that there was no combination of the claimant’s two injuries to produce a disability greater than that resulting from claimant’s compensable injury. However, inHawkins, there was unrebutted testimony from the claimant’s physician stating that claimant’s previous injury contributed to claimant’s compensable injury and claimant’s current disability. However, in the case currently before us there is no such evidence. To the contrary, all medical evidence indicates that claimant convalesced from his previous injury and was capable of returning to his previous employment. There is no evidence that the claimant suffered from any neurologic residuals as a result of that first injury. Neither Dr. Lluwellyn, nor Dr. Moore’s depositions indicate that claimant’s condition was a result of a combination of the 1986 injury and the 1991 injury.
[13] Dr. Jim J. Moore, who treated the claimant based upon an independent medical evaluation ordered by the Administrative Law Judge, was asked in his deposition if claimant’s two injuries combined to make claimant’s condition worse to which he responded:
In general this patient was doing pretty well, to my understanding, prior to the ’91 episode. It would have appeared to me that he had gotten a good result from his 1986 surgery. I don’t believe that his ’91 injury aggravated a pre-existing process. I think it, in itself, was an adequate injury per say.
And I believe that it would be more appropriately considered muscleoligamentous sprain and strain, especially in view of the spasm that I palpitated in his back and the fact that I was not impressed with the patient having an intraspinal disease process per say.
There was no question of spinal stenosis, which is an acquired process and would not be directly referable to an injury . . .
[14] Consequently, we cannot find that respondent No. 1 has proven that claimant’s two injuries combined to create a disability greater than that resulting from claimant’s 1991 compensable injury alone. Therefore, we affirm the decision of the Administrative Law Judge with regard to Second Injury Fund liability.
[15] IT IS SO ORDERED.
ELDON F. COFFMAN, Chairman MIKE WILSON, Commissioner
[16] Commissioner Humphrey dissents.
