CLAIM NO. E418113
Before the Arkansas Workers’ Compensation Commission
OPINION FILED FEBRUARY 5, 1998
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE DICK JARBOE, Attorney at Law, Walnut Ridge, Arkansas.
Respondents represented by the HONORABLE CURTIS L. NEBBEN, Attorney at Law, Fayetteville, Arkansas.
Decision of Administrative Law Judge: Affirmed as modified.
[1] OPINION AND ORDER[2] Respondents appeal an opinion and order filed by the administrative law judge on April 30, 1997. In that opinion and order, the administrative law judge found that the claimant has sustained wage loss disability of 15% in excess of his anatomical impairment of 9% established by the medical evidence. After conducting a de novo review of the entire record, we find that the claimant has sustained a 10% impairment to his wage earning capacity in excess of the 9% anatomical impairment established by the medical evidence. Therefore, we find that the decision of the administrative law judge must be affirmed as modified. [3] 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 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. [4] In the present case, claimant sustained an admittedly compensable injury to his cervical spine on November 7, 1994. Claimant eventually underwent a fusion and discectomy at the C5-6 level on February 23, 1995. As a result of his surgery, claimant was assigned a 9% physical impairment rating to the body as a whole. In addition, claimant’s treating physician assigned claimant an additional 2% impairment for osteophytosis at the level above and below the surgical site. At the time of the hearing, claimant was 31 years of age, a high school graduate with military experience in the Marine Corps., Marine Corps. Reserves, and Arkansas National Guard. Claimant has experience as a carpenter, auto mechanic, farmer, and welder. In addition, after sustaining his compensable injury, claimant attended Vo-Tech school and is currently certified as an appliance repair technician. After obtaining his certificate in appliance repair in May of 1996, claimant opened his own appliance repair shop. [5] In September of 1995, claimant was released to return to light-duty work by his treating physician. Claimant worked for respondent until February of 1996 when respondent terminated claimant’s employment due to respondent’s inability to accommodate restrictions placed on claimant by claimant’s physician. Claimant drew unemployment benefits after his termination, prior to attending Vo-Tech school. [6] When the claimant returned to the respondent employer in September, 1995, after his surgery, he was under the following restrictions:
[7] Dr. Kyle maintained these restrictions through October and into November, when he further cautioned against “arm extension with neck flexion” (on November 21, 1995). By the following April, Dr. Kyle found claimant’s condition to be stable, but did not expressly lift his restrictions. In addition, Dr. Kyle recommended yearly follow-up and mentioned the possibility of more surgery “should any kyphosis develop.” [8] For his own part, claimant described how his restrictions affected his return to work:Sedentary work lifting 10 lbs maximum and occasionally lifting and carrying such articles as dockets, ledgers, and small books.
[9] After his return, claimant attempted to “drop rivets,” but could not perform this task for long:No lifting over ten pounds. I had to be off my feet quite a bit. I can’t remember right off the top of my head exactly what all of them was, but there was a lot of out of position jobs. It was pretty well covered that there wasn’t a whole lot that he wanted me to do, but under the same hand, there is a lot of stuff that you’ve got to do that you, you know, that there is no choice in.
[10] Claimant also worked the “consumables” counter, where other employees checked out gloves, welding lenses, and other supplies. Additionally, claimant drove a “sweeper” used to clean the floors, and occasionally stood by the “kill switch” on a crane in case it malfunctioned. Though claimant testified that he was able to perform each of these tasks (with the exception of “dropping rivets”), he eventually lost his employment with respondent employer:That there was reaching and staying stooped over. More or less I had my neck, which is where my problem is, in awkward positions, and I could do it for a little while, but as far as sitting there and doing it all night, it was hard to do.
[11] Respondents contend that claimant’s wage loss is not attributable to any residuals from his compensable injury, but is instead the result of a voluntary decision to start a new business which is currently struggling. In support of this proposition, respondents point out that claimant has been able to load and unload heavy appliances into a truck, maintain his hunting and fishing hobbies, and ride a four-wheeled all terrain vehicle for recreation. [12] Claimant explained that he now uses a ramp and dolly to load heavy appliances, and it appears from his credible testimony that he previously lifted such items on a relatively infrequent basis. Furthermore, claimant has expressly testified that he can still do almost anything, but “only so much of it and then I’ve got to take some time off and let myself heal up.” Accordingly, the proper analysis of claimant’s wage loss is best viewed from a quantitative, rather than qualitative, perspective. The fact that he has been able, on occasion, to lift heavy appliances, does not mean that he can do so every day on a repetitive basis. Notably, the physical demands of hunting, fishing, or even four-wheeling are obviously not comparable with the sort of heavy manual labor (welding) claimant performed for respondent employer. [13] After considering claimant’s youth, work experience, education and military background, as well as claimant’s somewhat active recreational lifestyle which includes hunting, fishing and riding four wheelers, we cannot find that claimant has sustained the 15% decrease in his wage earning capacity as awarded by the Administrative Law Judge. However, it is clear that as a result of his compensable injury claimant has permanent restrictions placed upon him which may affect his ability to return to employment as a welder. It appears that, to some extent, claimant’s present decrease in his wage earning ability is due to claimant’s own desire to go into business for himself as an appliance repair technician, not his compensable injury. If claimant so chose, he could seek work in the available job market. In fact, claimant did obtain seasonal employment in the fall of 1996 working for Riceland Foods. It is clear that the work claimant performed for Riceland Foods did comply with all of claimant’s permanent physical restrictions. [14] In short, claimant is young (31) but possesses a not insignificant 9% permanent impairment. While claimant does have a broad range of varying work experience, he is proficient only in appliance repair — a task to which he is currently, albeit unsuccessfully, devoted. Though claimant has no formal education, he did obtain his high school diploma. Finally, claimant faces the specter of further surgery in the event his cervical spine becomes hyphotic (which would most likely be a compensable consequence of his work-related injury), but has shown considerable motivation to return to work. [15] After conducting a de novo review of the entire record, and after considering the relevant restrictions implemented by Dr. Kyle, and claimant’s demonstrated inability to work for significant periods of time in a “stooped” position, we find that claimant has sustained a 10% loss to his wage earning capacity in excess of the anatomical impairment established by the medical evidence. Therefore, we find that the decision of the administrative law judge must be affirmed as modified. [16] 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 (Repl. 1996). [17] IT IS SO ORDERED.Actually, I never contacted an attorney, or anything, for over a year because I was trying to deal with them to keep — I told them as long as they left me alone and let me keep my job, that’s what I wanted. And you know very well the first time I called you on the job was whenever they sent me home one night because I refused to drop rivets because it hurt me the night before. Which when I went back to work they made me sign a statement I knew what hurt me, or my restrictions, and if I done anything to break them it was my fault. They were no longer responsible. But as far as place, they kind of done some harassing, which I think that’s the first time I got a hold of you and you sent a letter to them knowing that we knew they was trying to harass me. And it just basically ended up I wouldn’t quit, so they terminated me.
ELDON F. COFFMAN, Chairman MIKE WILSON, Commissioner
[18] Commissioner Humphrey dissents. [19] DISSENTING OPINION[20] While I agree that claimant is entitled to an award for wage loss disability benefits, my review of the factors cited by the majority opinion persuades me that claimant has sustained a 15% diminution to his wage earning capacity. Accordingly, I must respectfully dissent from the majority opinion, and would affirm the Administrative Law Judge’s award of 15%. [21] PAT WEST HUMPHREY, Commissioner