CLAIM NO. E208566
Before the Arkansas Workers’ Compensation Commission
OPINION FILED JULY 28, 1994
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE SCOTT HUNTER, Attorney at Law, Jonesboro, Arkansas.
Respondents represented by the HONORABLE PAUL WADDELL, Attorney at Law, Jonesboro, Arkansas.
Decision of Administrative Law Judge: Reversed.
[1] OPINION AND ORDER
[2] The respondents appeal an opinion and order filed by the administrative law judge on November 4, 1993. In that opinion and order, the administrative law judge found that the claimant sustained a 15% impairment to her earning capacity in excess of the 15% permanent physical impairment established by the medical evidence.
[4] In the present claim, we find that the preponderance of the evidence establishes that the respondent offered the claimant employment within her physical restrictions at wages equal to or greater than her average weekly wage at the time of the accident. Therefore, we find that the administrative law judge’s award of permanent partial disability compensation in excess of the permanent physical impairment established by the medical evidence must be reversed. [5] The claimant is a licensed practical nurse, and she worked in the respondent’s OB section. She sustained an admittedly compensable injury on February 28, 1992. She was assisting a patient, and, as she bent over to move a monitor, she felt a pop in her low back. Although she was initially able to continue working, she experienced pain in the right side of her low back, and this pain progressively worsened. The pain ultimately became severe, and it radiated down from her right hip and into her right leg. In addition, she complained of numbness on her right foot. [6] She was initially treated by Dr. Darrell Ragland, a general practitioner, on March 3, 1992. A MRI ordered by Dr. Ragland revealed degenerative disc disease at L5-S1 and a mild bulge, without evidence of herniation or mass effect upon the thecal sac or nerve roots. However, the claimant ultimately came under the care of Dr. Rebecca Barrett-Tuck, a neurosurgeon. Although Dr. Barrett-Tuck’s March 30, 1993, examination did not reveal any muscle spasm, it did reveal positive responses to the straight leg maneuver bilaterally and diffuse hypalgesia in the entire right foot. Based on the results of the MRI and these clinical findings, Dr. Barrett-Tuck initially diagnosed a lumbosacral strain, and she treated the claimant conservatively. However, the claimant’s condition did not improve. Consequently, Dr. Barrett-Tuck admitted the claimant to the hospital on May 22, 1992, for further studies, and these studies revealed a large central defect at L5-S1, with a probable extruded fragment. Based on these findings, Dr. Barrett-Tuck performed a partial hemilaminectomy and diskectomy bilaterally on June 4, 1992. She did discover a large central disc herniation at L5-S1, with a large free fragment. [7] Dr. Barrett-Tuck’s July 8, 1992, follow-up report indicates that the surgery completely resolved the claimant’s right lower extremity pain, although she continued to complain of “quickie type discomfort in the left side of the back and hip region . . .,” and Dr. Barrett-Tuck indicated that the claimant might be able to return to work in six weeks. However, when the claimant returned to Dr. Barrett-Tuck on September 15, 1992, she was complaining of paraspinous and sacroiliac pain, and she was walking in a stiffened manner. Consequently, Dr. Barrett-Tuck concluded that she did “not appear to be quite ready to return to work yet,” and she indicated that the claimant might be able to return to work in another six weeks. When the claimant returned to Dr. Barrett-Tuck on November 4, 1992, she was still complaining of “persistent achy pain in the left hip particularly when sitting or squatting,” and she advised Dr. Barrett-Tuck that she did not think she could return to work. However, Dr. Barrett-Tuck opined that the claimant should be able to return to work, and she questioned the claimant’s motivation to return to work. In this regard, Dr. Barrett-Tuck made the following comments:(b) In considering claims for permanent partial disability benefits in excess of the employee’s percentage of permanent physical 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. 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. [Emphasis added].
[8] Nevertheless, due to the claimant’s persistent complaints, Dr. Barrett-Tuck ordered a MRI to be sure that there was not a recurrent disc problem. According to Dr. Barrett-Tuck’s November 23, 1992, report, this MRI revealed “expected scar formation about the right side of the spinal canal” which was of a “normal post operative appearance.” Otherwise, the MRI did not reveal any evidence of a recurrent disc or nerve root compression. In light of these findings, Dr. Barrett-Tuck released the claimant to return to work the following Monday. Although Dr. Barrett-Tuck restricted the claimant from heavy lifting, bending, stooping, or twisting, her report indicates that she had talked with the claimant’s supervisor and that she was confident that her work would be within her limitations. In this regard, Dr. Barrett-Tuck made the following comments:She is doing well with her walking and back exercises and tells me that she is having basically no pain with walking. Carmeta works on the OB floor at the hospital working only with healthy young women. Having had personal, first hand experience upon two occasions on the OB floor, I really do not recall seeing the nurses having to do any significant lifting at all. Ms. Bagwell, when asked specifically why she thought she would have trouble returning to work, she states that you have to bend over to look at the monitors and that she has to bend over a patient’s bed during coaching. I do not think that either of these statements are true. I think that she could do her coaching standing with good posture in the upright position. I do not think that it is necessary to bend over a patient’s bed to coach them during labor. I also do not feel it is necessary to bend over to look at monitors as the monitors are not kept on the floor. I get the feeling that Carmeta really does not want to return to work. [Emphasis added]. I have tried to encourage her today hoping to get her back to work in a month or six weeks.
[9] In addition, Dr. Barrett-Tuck opined that the claimant sustained a 15% permanent physical impairment. [10] The claimant did return to work for approximately one week. She admitted that the respondent had made modifications in her job requirements to accommodate her physical restrictions. In this regard, she was moved to the post-partum care section, and all delivery room duties were removed. She was instructed to advise a supervisor or someone else if any lifting needed to be done, and she admitted that no situations occurred during the week she worked that required her to do anything that was not within her restrictions. Nevertheless, she testified that she was in too much pain to work. [11] Consequently, Dr. Barrett-Tuck again took the claimant off work and treated her with conservative measures. Nevertheless, the claimant advised Dr. Barrett-Tuck that the pain was not improved, and she began complaining of pain in the left side of her back, the left hip, and the left lower extremity. Dr. Barrett-Tuck’s February 3, 1993, examination revealed only a minimal paraspinous spasm and a weakly positive straight leg raising test on the left. Otherwise, the examination was normal. However, due to the fact that the claimant had not improved with conservative treatment, Dr. Barrett-Tuck ordered a myelogram and post myelogram CT scan. These studies revealed a bulging annulus at L4-5, L3-4, and L5-S1, but there was no herniation or nerve root involvement. Dr. Barrett-Tuck concluded that these findings were insufficient to explain the claimant’s continued complaints. [12] The claimant subsequently returned to Dr. Ragland complaining of low back pain radiating into her left leg. Dr. Ragland examined her on March 9, 1993, and this examination was essentially normal, except for some low back tenderness. Dr. Ragland talked with Dr. Barrett-Tuck on March 10, 1993, about the claimant’s condition on March 10, 1993, and he made the following comments with regard to that conversation:I am releasing Ms. Bagwell to return to work on Monday. She is to be restricted from heavy lifting, bending, stooping or twisting. I have spoken to her supervisor and I understand that she will be exempt from delivery room and coaching for the time being. I think that this is a very good idea. At this time I would be in favor in having her work the delivery room.
I do think that it will be helpful for Ms. Bagwell to get back into the work place and begin to get more active. I will be planning to see her on PRN basis, only.
[13] The claimant did return to work again for one day on March 4, 1993, and she watched instructional videos all day. Nevertheless, she advised her supervisor at the end of the day that she could not perform the required duties, and she voluntarily terminated her employment. [14] At the hearing before the administrative law judge, the claimant testified that she does not feel any differently than she did before the operation. She testified that she is unable to enjoy any activities that she enjoyed before the surgery, such as fishing, skiing, horseback riding, bowling, gardening, and canning. She also testified that she is unable to do housework as she did before the injury. If she does light dusting, she has to lie down on a heating pad. She testified that she cannot stand or sit for over one hour, and she testified that she would have to lie on a heating pad if she did either. [15] In addition, she testified that she cannot work as a licensed practical nurse in any capacity because the requirements of the job exceed her physical restrictions. In this regard, she testified that she could not avoid emergency situations which would require exertions in excess of her restrictions, and she testified that hospitals are always in emergency situations. However, she admitted that she was not involved in any emergency situations during the week that she worked. She also testified that there is no work she feels she is able to do due to her asserted inability to sit or stand for extended periods. In this regard, she testified that she must lie down at least once each hour. [16] As discussed, Ark. Code Ann. § 11-9-522 (b) precludes an award of wage loss compensation when the employee “has returned to work, has obtained 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.” In the present claim, the claimant admits that the respondent has offered to return her to work, and the claimant admits that they offered to modify her job requirements to accommodate her physical restrictions. Dr. Barrett-Tuck has opined that the claimant is physically capable of performing the job offered, and Dr. Barrett-Tuck’s opinion is based on her personal knowledge of requirements of the job and on her discussion of the accommodations to be made with the claimant’s supervisor. Furthermore, the claimant’s conclusion that she is physically unable to perform the work is based on duties which she admits she was advised she would not be required to perform. Moreover, she admits that she was not required to perform any of these duties during the short period of time that she attempted to work. In fact, she was not required to do anything other than watch instructional videos during the one day that she did work in March of 1993, and she concedes that she did not test her ability to do the work offered before concluding that she was unable to do it. Significantly, the claimant’s description of the severity of her problems and of the effect of these problems on her ability to perform the work offered by respondent is not consistent with the medical findings. In fact, Dr. Barrett-Tuck has opined that a return to work and that a more active lifestyle would actually help resolve the claimant’s physical complaints. Based on these facts, we find that a preponderance of the evidence establishes that the respondent made a bona fide and reasonably obtainable offer to employ the claimant at wages equal to or greater than her average weekly wage at the time of the injury. [17] Accordingly, based on our de novo review of the entire record, and for the reasons discussed herein, we find that Ark. Code Ann. § 11-9-522 (b) precludes an award of permanent partial disability compensation in excess of the 15% permanent physical impairment established by the medical evidence. Therefore, we find that the administrative law judge’s decision must be, and hereby is reversed. This claim is denied and dismissed. [18] IT IS SO ORDERED.I got a call from Dr. Tuck on the 10th returning my call from the other day. She noted that her evaluation was o.k. . . . She did not think Ms. Bagwell should have anymore Workman’s Comp pay, she really didn’t think anything was going on w/her back particularly at the current time, she felt like she ought to get a 15% impairment rating and then if Ms. Bagwell felt like she couldn’t work then she should just not work, but she didn’t want to give her anymore work releases, so I won’t either. . . .”
JAMES W. DANIEL, Chairman ALLYN C. TATUM, Commissioner
[19] Commissioner Humphrey dissents.