CLAIM NO. E313503
DANNIE SILLS, EMPLOYEE, CLAIMANT v. CAPCO PIPE COMPANY, EMPLOYER, RESPONDENT and CIGNA INSURANCE COMPANY, INSURANCE CARRIER, RESPONDENT
Before the Arkansas Workers’ Compensation Commission
OPINION FILED AUGUST 29, 1995
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE DAVID HARP, Attorney at Law, Fort Smith, Arkansas.
Respondents represented by the HONORABLE ROBERT HORNBERGER, Attorney at Law, Fort Smith, Arkansas.
Decision of Administrative Law Judge: Affirmed.
[1] OPINION AND ORDER
[2] The claimant appeals an opinion and order filed by the administrative law judge on January 17, 1995. In that opinion and order, the administrative law judge found that the claimant was not entitled to permanent partial disability compensation in excess of the permanent physical impairment established by the medical evidence. After conducting a de novo review of the entire record, we find that an award of permanent partial disability compensation in excess of the percentage of permanent physical impairment established by objective medical findings is barred due to the claimant’s failure to cooperate with job placement assistance offered by the respondents. Therefore, we find that the administrative law judge’s decision must be affirmed.
[3] The claimant was employed by the respondent employer as a stripper operator and batch mixer, and his duties included stripping the mandrel pipe out of the cement asbestos pipe. On August 3, 1993, he sustained an admittedly compensable back injury as he was lifting a mandrel weighing 200 to 300 pounds. At the time, he was earning $7.74 an hour.
[4] The claimant was first treated for his injury on August 12, 1993, by Dr. Douglas Parker, an orthopedic specialist. At the time, he was complaining of severe back pain which radiated into his left extremity. A MRI ordered by Dr. Parker revealed degenerative disc disease at L4-5 and L5-S1. In addition, the MRI showed a central disk herniation at L5-S1 which was consistent with the claimant’s radicular symptoms, and it showed congenital defects of the posterior elements of S1.
[5] On September 30, 1993, the claimant was evaluated by Dr. Luis G. Cesar, a neurosurgeon. Dr. Cesar’s clinical examination produced essentially negative results, and, based on the fact that the claimant was pain free except when he was lifting, concluded that the surgery was not indicated. Instead, Dr. Cesar recommended a work hardening program.
[6] Dr. Parker opined that the claimant’s healing period ended on November 17, 1993, and he assigned a 5% permanent physical impairment rating. Dr. Parker has also restricted the claimant to no lifting over 15 pounds, and he has restricted the claimant’s pushing, pulling, and repetitive bending. Nevertheless, Dr. Parker has opined that the claimant is capable of employment in some capacity.
[7] The claimant was also evaluated by Dr. Albert MacDade, a neurosurgeon, on March 17, 1994. Dr. MacDade interpreted the MRI findings to reveal degenerative disc disease at L4 and L5. However, contrary to the interpretations of Dr. Parker and Dr. Cesar, Dr. MacDade did not interpret the MRI to reveal any herniation. Instead, he interpreted the findings to show spondylitic ridges that produced mild bulges, but no surgical lesions. Consequently, Dr. MacDade also recommended only conservative care. Dr. MacDade agreed with Dr. Parker’s 5% permanent physical impairment rating and with Dr. Parker’s physical restrictions. According to the claimant’s testimony, he continues to experience constant, severe back pain, and he testified that he is unable to work due to this pain.
[8] The respondents have accepted Dr. Parker’s 5% permanent impairment rating. However, they have controverted the payment of any permanent disability compensation in addition to this 5%. Since the claimant contends that he sustained an injury after July 1, 1993, this claim is controlled by the Arkansas Workers’ Compensation Law as amended by
Act 796 of 1993. Under the amended law, an employee who refuses to participate in or fails to cooperate with an offered program of job placement assistance is not entitled to an award of permanent disability compensation in excess of the percentage of permanent physical impairment, unless there is reasonable cause for the refusal to participate or failure. Ark. Code Ann. §
11-9-505 (b) (Cumm. Supp. 1993).
[9] In the present claim, the respondents contracted Intracorp, a rehabilitation firm, and Luzanna Tubb, a vocational rehabilitation specialist, was assigned to assist the claimant in obtaining employment. Ms. Tubb identified at least three employers in the claimant’s locale that were hiring, which she confirmed by actually contacting the employers. In addition, she submitted an analysis describing the potential jobs to Dr. Parker, and Dr. Parker indicated that the claimant was physically capable of performing the jobs described. The claimant and his attorney were advised of these job openings and of Dr. Parker’s approval of these jobs. However, the claimant made no attempt to apply for either of these jobs. He explained his failure to apply for either of these by testifying that he would have to go through a temporary service and he disliked temporary services because of their effect on the job market in that area. Moreover, he began drawing unemployment compensation after he was released by Dr. Parker, and he admitted that he did not apply at two of the potential employers because he made as much money drawing unemployment compensation as he would make working for those employers. Furthermore, Ms. Tubb was unable to contact the claimant by telephone, and the claimant failed to respond to correspondence from her.
[10] The evidence indicates that the claimant was capable of engaging in some form of meaningful employment. He was 39 years old at the time of the hearing. He dropped out of school in the 10th grade, but he obtained his G.E.D. While his employment history consists entirely of moderately heavy physical labor, there is no evidence indicating that he could not be trained to perform more sedentary tasks. Although his physicians have imposed significant physical restrictions on him, none have suggested that he is not capable of engaging in any type of employment. In fact, Dr. Parker opined that the claimant was capable of entering the job market in some capacity, and Dr. Parker actually approved the three jobs identified by Ms. Tubb.
[11] In short, the preponderance of the evidence establishes that the claimant refused to participate in or cooperate with the job placement assistance offered by the respondents. This refusal to participate in or cooperate with the job placement efforts offered by the respondents was not based on any real or perceived physical incapacity. Instead, the only explanation offered for the refusal was the claimant’s personal dislike of temporary agencies and the fact that he could make as much money on unemployment as he could make working. We find that these reasons do not constitute reasonable cause for his refusal or failure to cooperate, and we find that reasonable cause does not otherwise exist to justify the claimant’s refusal or failure to cooperate with the job placement efforts offered by the respondents. Therefore, we find that an award of permanent disability compensation in excess of the percentage of permanent physical impairment is barred by Ark. Code Ann. §
11-9-505 (b).
[12] Accordingly, based on our de novo review of the entire record, and for the reasons discussed herein, we find that the claimant failed to prove by a preponderance of the evidence that he is entitled to any permanent disability compensation in excess of the 5% permanent physical impairment established by the medical evidence. Therefore, we find that the administrative law judge’s decision must be, and hereby is, affirmed. This claim is denied and dismissed.
[13] IT IS SO ORDERED.
JAMES W. DANIEL, Chairman ALLYN C. TATUM, Commissioner
[14] Commissioner Humphrey dissents.
