CLAIM NO. E201445
ROBERT ALLEN, EMPLOYEE, CLAIMANT v. ADD TIMBER CO., EMPLOYER, RESPONDENT and LIBERTY MUTUAL INSURANCE CO., CARRIER, RESPONDENT
Before the Arkansas Workers’ Compensation Commission
OPINION FILED SEPTEMBER 5, 1996
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by CHARLES D. BARNETTE, Attorney at Law, Texarkana, Arkansas.
Respondent represented by BRIAN RATCLIFF, Attorney at Law, El Dorado, Arkansas.
Decision of Administrative Law Judge: Affirmed in part and modified in part.
[1] OPINION AND ORDER
[2] The respondent has appealed from the decision of the Administrative Law Judge filed March 25, 1996 finding that the claimant has sustained a 50% wage loss disability. Claimant has cross-appealed and contends that he is permanently and totally disabled and that he is entitled to a 16% physical impairment rating to the body as a whole as opposed to the 10% impairment rating awarded by the Administrative Law Judge. Based upon our de novo review of the entire record, we affirm the Administrative Law Judge’s finding that the claimant is entitled to a 10% physical impairment rating, however, we find that the award of 50% wage loss disability should be modified. We find that the claimant is entitled to 30% wage loss disability.
[3] At the time of the hearing, the claimant was 40 years of age and had a high school education. After high school, the claimant entered the military and received training repairing small engines. Subsequent to being honorably discharged from the military, the claimant worked for Reynolds Aluminum as a carbon setter. The claimant has attended vocational school and received training as a welder, however, he did not graduate as he quit school two months early to take a job with Union Pacific Railroad. The claimant worked for Union Pacific Railroad for approximately nine years as a track man and as a welder’s helper. While working for Union Pacific, the claimant sustained two work-related injuries to his lower back. In February of 1988, the claimant underwent surgery to his back as a result of one of these back injuries. Once reaching maximum medical improvement the claimant went to work in the log woods.
[4] The claimant sustained an admittedly compensable injury on October 31, 1991 while working for respondent. As a result of this injury, Dr. Jeffrey DeHaan performed a discectomy at L4-5 in March of 1994. The claimant reached maximum medical improvement from this injury in July of 1994 and was released to return to work by Dr. DeHaan.
[5] In the fall of 1994 the claimant attended security guard school for six weeks. On November 7, 1994, after passing a written test, the claimant graduated from security guard school and received a certificate. The claimant has applied for security guard positions, however, at the time of the hearing he was unemployed.
[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. Motivation, post-injury income, credibility, and demeanor are several of the other factors routinely considered by the Commission. Glass v.Edens,
233 Ark. 786,
346 S.W.2d 685 (1961); City of Fayettevillev. 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). The 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] After our de novo review of all the testimony and documentary evidence, we find that the claimant has failed to prove by a preponderance of the evidence that he is permanently and totally disabled. However, we do find that the claimant has proven by a preponderance of the evidence that he sustained a 30% loss in his earning capacity over and above the 10% permanent partial impairment rating to the body as a whole. In making this finding, we have taken into consideration the claimant’s age, education, work experience, motivation, post-injury income and the medical records. The claimant’s relatively young age coupled with his military training and work experience lead us to find that his earning capacity has only been slightly diminished. The claimant lives an active lifestyle, exercising on a daily basis, hunting, fishing, and raising a child. The claimant is capable of driving an automobile, cooking and cleaning house. Such activities are inconsistent with a person possessing a high wage loss disability. However, the evidence in the record does show that the claimant has suffered some loss of his earning capacity. Therefore, we find that the Administrative Law Judge’s decision in this regard must be affirmed as modified.
[8] We further find that the physical impairment rating assigned by Dr. Jeffrey DeHaan is supported by a preponderance of the evidence and should be affirmed. Dr. DeHaan assigned the claimant a 10% physical impairment rating based upon the discectomy performed in March of 1994. Dr. DeHaan has also opined that the claimant’s previous surgery resulted in an additional 2% physical impairment rating. Dr. DeHaan specifically stated in his August 16, 1994 correspondence that the 10% whole body impairment rating to the body as a whole was a result of the October 31, 1991 injury.
[9] Dr. Green, on the other hand, assigned the claimant as having a 16% whole body physical impairment rating prior to the surgery being performed by Dr. DeHaan in March of 1994. Dr. Green’s impairment rating was based upon a 7% physical impairment rating for the involved disc and a 10% for loss of motion which computes to a 16% impairment rating to the body as a whole. Dr. Green only examined the claimant on one occasion prior to the claimant undergoing surgery. Dr. DeHaan, on the other hand, was the claimant’s treating physician. Moreover, it is highly conceivable that after undergoing surgery to correct his problem that the claimant’s impairment rating was reduced. Therefore, we find that Dr. DeHaan’s rating assigned after the claimant’s surgery is entitled to greater weight.
[10] Accordingly, we find that the claimant sustained a 10% physical impairment rating as a result of his compensable injury and that he sustained a 30% loss in his earning capacity. Therefore, we affirm the Administrative Law Judge’s decision in part and modify in part.
[11] For prevailing on this appeal before the Full Commission, claimant’s attorney is hereby awarded an additional attorney’s fee in the amount of $250.00 to be paid one-half by claimant and one-half by respondent. Ark. Code Ann. §
11-9-715 (a)(2)(B) and §
11-9-715 (b)(2).
[12] IT IS SO ORDERED.
JAMES W. DANIEL, Chairman ALICE L. HOLCOMB, Commissioner
[13] Commissioner Humphrey concurs.
