CLAIM NO. E203221.
Before the Arkansas Workers’ Compensation Commission
OPINION FILED AUGUST 3, 2000.
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE ROBERT L. DEPPER, JR., Attorney at Law, El Dorado, Arkansas.
Respondent No. 1 represented by the HONORABLE JUDY WILBUR, Attorney at Law, Little Rock, Arkansas.
Respondent No. 2 represented by the HONORABLE JUDY RUDD, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed.
OPINION AND ORDER
Respondent No. 1 appeals to the Full Workers’ Compensation Commission an administrative law judge’s opinion filed January 19, 2000. The administrative law judge found that the claimant has proven by a preponderance of the evidence that she has sustained a 40% wage-loss disability over and above her anatomical impairment. The administrative law judge found that Respondent No. 1 has failed to prove by a preponderance of the evidence that the claimant’s pre-existing condition combined with her present compensable injury to produce the claimant’s current disability status. The administrative law judge therefore found that Respondent No. 2, the Second Injury Fund, has no liability in the claim. After de novo review of the entire record, the Full Commission affirms the opinion of the administrative law judge.
I. HISTORY
Leontina Lonadier, age 54, emigrated from Portugal to the United States in approximately 1977, and became a naturalized American citizen in 1995. Ms. Lonadier testified to only a limited ability to read and write in English, but stated that she can participate in such activities as making a grocery list in English. The administrative law judge noted that “during the hearing, claimant demonstrated her command of the English language and an interpreter was neither needed nor requested.”
Ms. Lonadier sustained a compensable injury to her neck and low back on February 11, 1992. She underwent surgery for a disc herniation at C5-6 in 1992, and she underwent additional surgery for a herniation at L4-5 in 1993. Dr. Don W. Irby assigned a whole-body impairment rating of 20%, which rating the respondents accepted, and Dr. Irby released the employee to light work on August 24, 1993. However, light-duty work with the respondent-employer was not available at that time. In March, 1994, Dr. Irby approved the employee’s return to work at her regular position as a “plugger operator”, at which time Ms. Lonadier did return to work. The employee worked at this position until September, 1994, when she ceased work because of increased complaints of pain. Dr. Irby diagnosed “adhesive radiculopathy” and removed Ms. Lonadier from her plugger-operator position. Dr. Irby did not totally restrict the employee’s work activities.
In April, 1995, Dr. Irby recommended a program of pain management. Although Dr. Irby thought there was an “emotional component” to Ms. Lonadier’s pain, he did not consider her to be a malingerer. Dr. Irby was trying to get the claimant off her medicine and back into the work force, but Respondent No. 1 resisted the provision of pain management to the claimant. Dr. Reginald Rutherford examined the claimant in June, 1995 and found nothing preventing her from returning to regular work. Dr. Rutherford recommended a psychological consult. Dr. Judy White Johnson, a neuropsychologist, stated in September, 1995 that Ms. Lonadier was fearful, naive, and unsophisticated in her psychological functioning. Dr. Johnson found that “Given her attitudes, level of psychological functioning, and belief system, she is not a candidate for participating in a behavorial management program of pain control.”
After a hearing before the Commission in September, 1996, an administrative law judge determined that the claimant had failed to prove that she was entitled to a program of pain management. The Full Commission subsequently reversed this finding, based on an agreement by the parties that Respondent No. 1 would pay for a “one month trial run of pain management.” Ms. Lonadier then had the opportunity to treat with Dr. Bruce Safman beginning in 1997. After four weeks, Dr. Safman concluded:
I do not have anything additional to offer this patient who has not responded to conservative intervention. In my opinion she has received the maximum benefit of conservative intervention. I have discussed with the patient the fact that I believe a significant portion of her problem is emotional. The patient rejects this.
Ms. Lonadier contended that the compensable injury has rendered her permanently and totally disabled. Respondent No. 1 contended that the claimant is not permanently and totally disabled; alternatively, that the Second Injury Fund is liable for any wage-loss disability found. Respondent No. 1 further contended that the claimant has waived vocational rehabilitation and is therefore not entitled to any permanent benefits exceeding her anatomical impairment. Finally, Respondent No. 1 contended that the claimant was involved in an automobile incident in April, 1999, which the respondent characterized as an independent intervening event releasing it from further liability.
Respondent No. 2, the Second Injury Fund, also contended that the claimant is not permanently and totally disabled. Respondent No. 2 contended that the claimant is not entitled to any disability benefits exceeding her permanent anatomical impairment rating, “based upon claimant’s lack of cooperation with, or waiver of vocational rehabilitation.” Respondent No. 2 further contended that the claimant’s current disability, if any, was “the result of a subsequent injury. Finally, Respondent No. 2 contends that there is no combination of disabilities greater than the last injury which would invoke the Second Injury Fund’s liability.”
After a second hearing before the Commission, the administrative law judge filed an opinion on January 19, 2000. The administrative law judge considered all of the wage-loss factors found in Ark. Code Ann. § 11-9-522, and was unable to find that the claimant was permanently and totally disabled, or that the claimant had presented a prima facie case that she fell within the “odd-lot” category. However:
I am persuaded by the evidence that claimant has sustained a wage loss disability in the amount of forty percent (40%) to the body as a whole. Claimant’s treating and examining physicians have each opined that claimant may or should return to gainful employment. Moreover, claimant possesses a negative attitude with regard to vocational rehabilitation and her ability to return to work. While failure to participate in vocational rehabilitation is not a complete bar to wage loss or permanent and total disability under the law in affect (sic) on this claim, claimant’s failure to cooperate or participate impedes a full assessment of a claimant’s wage earning capacity.
The administrative law judge discussed that Ms. Lonadier failed to pursue a course of vocational rehabilitation offered by the respondent-employer. The claimant has not worked since 1994. The record shows, though, that she can participate in such daily activities as cooking, cleaning, tending farm animals, and gardening. The claimant was involved in an automobile accident in 1999, causing a flare-up of neck pain which subsided after physical therapy. The administrative law judge determined:
Claimant’s present lack of interest and motivation to return to work or attempt vocational rehabilitation is indeed an impediment to the assessment of claimant’s loss of earning capacity. Claimant can sit, stand, walk and do some light work around the house. In addition, claimant tends to animals on her three acres of land and runs errands to the bank and Post Office for her husband. Claimant is presently drawing social security disability and has not sought any light duty employment. . . .I find that claimant has failed to prove by a preponderance of the evidence that she is permanently and totally disabled. However, the evidence preponderates in favor of finding that claimant has sustained a forty percent (40%) decrease in her wage earning capacity.
With regard to Second Injury Fund liability, the administrative law judge cited the requirements found in Mid-StateConstruction v. Second Injury Fund, 295 Ark. 1, 746 S.W.2d 539
(1998):
First, the employee must have suffered a compensable injury at his 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 injury to produce the current disability status. Mid-State Construction, supra.
The administrative law judge noted that the first requirement has been met, in that Ms. Lonadier suffered a compensable injury at her present place of employment. After a vehicular accident in 1988, a physician diagnosed a cervical disk protrusion, although there was no formal impairment rating. Therefore, there was a “prior . . . impairment.” However:
The third requirement is that the previous disability or impairment must combined (sic) with the recent compensable injury to produce the claimant’s present disability. Based upon my review of the entire record, I find that respondent no. 1 has failed to meet this third requirement. Although claimant suffered from a herniated disk in her cervical spine prior to her compensable injury, the medical evidence reveals that the herniation was not large or very impressive. Moreover, claimant testified and the record reveals that claimant was capable of working at her regular duties which consisted of heavy manual labor despite this pre-existing condition. Claimant likewise testified that if not for her compensable back injury (not her compensable neck injury) she would be capable of returning to not only gainful employment, but also to her former position as a plugger, which consisted of heavy manual labor.
The administrative law judge found that the claimant has proven by a preponderance of the evidence that she has sustained a 40% wage-loss disability over and above her 20% physical impairment rating. The administrative law judge found that Respondent No. 1 has failed to prove that the claimant’s pre-existing condition combined with her present compensable injury to produce the claimant’s current disability status. “Therefore, respondent no. 2, the Second Injury Fund, has no liability in this claim. Respondent is hereby ordered to pay the claimant benefits in accordance with the findings of fact above.” Respondent No. 1 appeals to the Full Commission.
II. ADJUDICATION
A. Wage Loss
Respondent No. 1 argues that the claimant is not entitled to any wage-loss disability. When determining the degree of permanent disability sustained by an injured worker, the Commission must consider the degree to which the worker’s future wage-earning capacity is impaired. In addition to medical evidence demonstrating the degree to which the worker’s anatomical disabilities impair her earning capacity, the Commission must also consider such other factors as the worker’s age, education, work experience, and any other matters which may affect the worker’s future earning capacity, including the degree of pain experienced by the worker. Ark. Code Ann. § 11-9-522(1987); Tiller v. Sears, 27 Ark. App. 159, 767 S.W.2d 544 (1989). When it becomes evident that the employee’s underlying condition has become stable, and that no further treatment will improve her condition, the Commission deems the disability to be permanent. If the employee is totally incapacitated from earning a livelihood at that time, she is entitled to permanent and total disability compensation.Minor v. Poinsett Lumber Manufacturing Co., 235 Ark. 195, 357 S.W.2d 504 (1962).
An employee who is injured to the extent that she can perform services that are so limited in quality, dependability, or quantity that a reasonably stable market for them does not exist may be classified as totally disabled under the odd-lot doctrine.Lewis v. Camelot Hotel., 35 Ark. App. 212, 816 S.W.2d 632 (1991). The odd-lot doctrine recognizes that the obvious severity of some injuries may combine with other factors to preclude the worker from obtaining employment in any reasonably stable market, although the employee is not altogether incapacitated from work Id. The factors which may combine with the obvious severity of the employee’s injury to place her in the odd-lot category are the employee’s mental capacity, education, training, and age. If the claimant makes a prima facie showing that she falls in the odd-lot category, the respondents have the burden of going forward with evidence showing that “some kind of suitable work is regularly and continuously available to the claimant.” Id.
In considering the factors which may affect an employee’s future earning capacity, the Commission may consider the claimant’s motivation to return to work. A lack of interest or a negative attitude impedes our assessment of the claimant’s loss of earning capacity. Oller v. Champion Parts Rebuilders, 5 Ark. App. 307, 635 S.W.2d 276 (1982). A claimant’s failure to participate in vocational rehabilitation does not bar her claim, but such a failure may likewise hinder a full assessment of her wage-earning loss. Nicholas v. Hempstead County MemorialHospital, 9 Ark. App. 261, 658 S.W.2d 408 (1983).
In the present matter, the administrative law judge awarded the claimant a 40% wage-loss disability over and above her 20% physical impairment rating. The Full Commission affirms the award. The dissent would find that the claimant is not entitled to any wage-loss disability exceeding her anatomical impairment. The dissent interprets the medical evidence as showing “symptom magnification” on the claimant’s part. Yet Dr. Irby, the primary physician, reported no such condition. Dr. Irby thought there might be an “emotional component” to the claimant’s pain, but he did not consider her to be a malingerer.
Dr. Irby assigned a 20% whole-body impairment rating, accepted and paid out by Respondent No. 1. Ms. Lonandier was released to light work in August, 1993, but no light-duty position with the respondent was available. Beginning in 1994, the claimant did return to a manual-labor position, “plugger operator,” which work increased her pain complaints. Dr. Irby diagnosed “adhesive radiculopathy” and removed Ms. Lonandier from this position. After one examination in 1995, Dr. Rutherford concluded that there were no “objective findings” preventing the claimant from returning to work. Dr. Rutherford’s opinion seemingly ignored the claimant’s agreed physical impairment after the compensable injury. The claimant is age 54, with limited transferable job skills and limited English-speaking ability. The Full Commission affirms the administrative law judge’s finding that the claimant has sustained wage-loss disability in the amount of 40% to the body as a whole.
Respondent No. 1 argues that if the claimant is entitled to wage-loss disability, the Second Injury Fund should be liable. The Second Injury Fund argues that the wage-loss award should be modified, but that if there is any wage loss, they are not liable.
B. Second Injury Fund Liability
As the administrative law judge noted, the Second Injury Fund becomes liable only after three requirements have been satisfied, as follows:
1. The employee must have suffered a compensable injury at her present place of employment;
2. Prior to that injury, the employee must have had a permanent partial disability or impairment;
3. The disability or impairment must have combined with the recent compensable injury to produce the current disability status.
See, Mid-State Construction v. Second Injury Fund, 291 Ark. 1, 746 S.W.2d 539 (1988).
In the present matter, the Full Commission affirms the administrative law judge’s finding that Respondent No. 1 has failed to prove by a preponderance of the evidence that the claimant’s pre-existing condition combined with the most recent compensable injury to produce the claimant’s current disability status. Relying on pain complaints in the claimant’s neck and other areas before the 1992 compensable injury, the dissent maintains that the claimant’s pre-existing conditions are contributing to any permanent disability she may have. Yet, the administrative law judge recognized that the claimant had no lingering complaints at hearing related to her compensable neck injury. When the claimant attempted to return to work, she was unable to engage in lifting or twisting actions in her back. The claimant credibly testified that if not for her compensable back injury (not the neck injury) she would be capable of performing her previous duties as a plugger operator. The Full Commission therefore affirms the administrative law judge’s determination that the Second Injury Fund is not liable for the claimant’s wage-loss disability, since the claimant’s back problems began after the 1992 compensable injury, not before. Consequently, we affirm the administrative law judge’s finding that but for the claimant’s compensable low-back injury, the claimant would not have incurred wage-loss disability.
Based on our de novo review of the entire record, the Full Commission finds that the claimant proved by a preponderance of the evidence that she sustained a 40% wage-loss disability exceeding her anatomical impairment. We find that the respondent-employer failed to prove by a preponderance of the evidence that the claimant’s pre-existing condition combined with her present compensable injury to produce the claimant’s current disability status; the Second Injury Fund has no liability in this claim. The Full Commission therefore affirms the opinion of the administrative law judge. 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 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(b) (Repl. 1996).
IT IS SO ORDERED.
_______________________________
ELDON F. COFFMAN, Chairman
_______________________________ PAT WEST HUMPHREY, Commissioner
Commissioner Wilson dissents.
DISSENTING OPINION
I respectfully dissent from the majority’s opinion finding that the claimant is entitled to a 40% wage loss disability benefit. Further, I dissent from the majority’s opinion finding that the claimant’s wage loss is not the responsibility of the Second Injury Fund. Based upon my de novo
review of the record, I find that the claimant is not entitled to any wage loss disability benefits. However, if the claimant were entitled to any wage loss it would be the responsibility of the Second Injury Fund.
The claimant sustained an injury to that portion of his body which is not scheduled under the Act. Therefore, the claimant’s entitlement to permanent disability benefits is controlled by Ark. Code Ann. § 11- 9-522. Permanent disability compensation is paid where the permanent effects of a work-related injury incapacitate the worker from earning the wages which he was receiving at the time of the injury. When making a determination of the degree of permanent disability sustained by an injured worker with an unscheduled injury, the Commission must consider medical evidence demonstrating the degree to which the worker’s anatomical disabilities impair his earning capacity, as well as other factors such as the worker’s age, education, work experience, and other matters which may reasonably be expected to affect the workers’ future earning capacity. Such other matters are motivation, post-injury income, credibility, and demeanor.Glass v. Edens, 233 Ark. 786, 346 S.W.2d 685 (1961); City ofFayetteville 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). When it becomes evident that the worker’s underlying condition has become stable and that no further treatment will improve the condition, the disability is deemed to be permanent. If the employee is totally incapacitated from earning a livelihood at that time, he is entitled to compensation for permanent and total disability. Minor v. Poinsett Lumber Manufacturing Co., 235 Ark. 195, 357 S.W.2d 504 (1962).
An employee who is injured to the extent that he can perform services that are so limited in quality, dependability, or quantity that a reasonable stable market for them does not exist may be classified a totally disabled under the odd-lot doctrine.Lewis v. Camelot Hotel, 35 Ark. App. 212, 816 S.W.2d 632 (1991). The odd-lot doctrine recognizes the obvious severity of some injuries may combine with other factors to preclude the employee from obtaining employment in any reasonably stable market, although the worker is not altogether incapacitated from work.Id. The factors which may combine with the obvious severity of the employee’s injury to place him in the odd-lot category are the employee’s mental capacity, education, training and age. Id. If the claimant makes a prima facie showing that she falls in the odd-lot category, the respondents have the burden of proving that “some kind of suitable work is regularly and continuously available to the claimant.” Id.
In considering the factors which may affect an employee’s future earning capacity, the Commission may consider the claimant’s motivation to return to work, since a lack of interest or negative attitude impedes the Commission’s assessment of the claimant’s loss of earning capacity. City Fayetteville v.Guess, 10 Ark. App. 313, 663 S.W.2d 946 (1984); Oller v. ChampionParts Rebuilders, 5 Ark. App. 307, 635 S.W.2d 276 1982. In addition, a workers’ failure to participate in rehabilitation does not bar her claim, but the failure may impede a full assessment of his wage earning loss by the Commission. Nicholas v. HempsteadCounty Memorial Hospital, 9 Ark. App. 261, 658 S.W.2d 408 (1983).
In my opinion, the claimant has failed to prove by a preponderance of the evidence that she is entitled to any wage loss disability benefits in excess of her anatomical impairment. It is clear that the claimant lacks motivation to return to work and has failed to seriously pursue rehabilitation. Further, the medical evidence shows that the claimant is not entitled to any wage loss disability benefits.
The medical evidence shows that the claimant has symptom magnification and a physical ability to work. Dr. Irby, the claimant’s treating physician, returned the claimant to work on August 24, 1993. Dr. Irby completed a functional capacity evaluation that indicated that the claimant could return to work for 8 hours, with rest, and could stand, walk, lift, carry, bend, squat, crawl, and climb as indicated. Dr. Irby explained that the claimant had no restrictions and could do repetitive action with her hands or feet. The claimant continued to suffer from pain and Dr. Irby took the claimant off work again in 1995. Dr. Irby admitted in his deposition the claimant could return to work if she went to a pain clinic and stopped taking the medication which he believes she had become addicted to. He further stated that he never totally restricted her from working.
A 1995 independent medical examination by Dr. Reginald Rutherford concluded that there was no objective findings or credible clinical symptoms that prevented the claimant from performing her regular work duties. Dr. Rutherford opined that the claimant was exaggerating her symptoms and he believed her complaints were driven by a physiopsychological rather than physiological processes. He recommended a psychological evaluation. He agreed that the claimant’s current medications need to be discontinued in order to detoxify her.
Dr. Judy White Johnson, a psychologist, evaluated the claimant on September 27, 1995. Dr. Johnson noted that the claimant, “Does not take an active view toward improvement and believes that she will not improve. She continues to think that medication is the answer to her problems even though Flexaril and Talazan are described as not helping. Giving her attitudes, level of psychological function, and belief system, she is not a candidate for participating in a behavioral management program of pain control.”
The claimant was seen by Dr. Bruce Saffman in 1997. Dr. Saffman noted that there was a decreased effort put forth by the claimant and an exaggeration of her symptoms. Dr. Saffman believed her symptoms had an emotional foundation for which he ultimately recommended a psychiatric evaluation.
In addition, the claimant has failed to pursue rehabilitation. When asked about vocational rehabilitation that was offered to her, the claimant stated that she could see no point in continuing rehabilitation. The claimant’s unwillingness to be re-educated or retrained with additional job skills is evident that she failed to cooperate with the offered program.
The claimant also has a negative attitude toward work and lacks motivation to return to work. The claimant is presently drawing social security disability benefits and stated over and over again that she does not believe that there is any type of work she can perform. The evidence shows that the claimant is able to perform such tasks as mopping, cooking, baking, driving, shopping, running errands, cleaning, and tending to her animals and plants on her three acres of land. She can lift 10 to 15 pounds.
When you consider all of the medical evidence, the claimant’s lack of motivation to return to work, and the claimant’s lack of interest in pursuing vocational rehabilitation, I find that the claimant is not entitled to any wage loss disability benefits.
However, if I were to find that the claimant was entitled to wage loss disability benefits, which I do not find, I would find that these benefits are the responsibility of the Second Injury Fund. Mid-State Constr. Co. v. Second Injury Fund, 295 Ark. 1, 746 S.W.2d 539 (1988) sets forth the requirements that must be met in order for the Second Injury Fund 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.
The evidence shows that the claimant had severe pain which caused her to seek medical treatment on a number of occasions in her neck, shoulders, hands, and right leg as well as constant headaches which pre-dated her 1992 work injury and which as late as 1999 continued to plague her by her own admission. Her current disability status cannot be the exclusive result of her work injury at the respondent employer. Clearly, the claimant’s pre-existing conditions are contributing to any permanent disability she may have. The combined effects of her prior conditions produce more disability than there would be had there been with the work injury alone. It is important to note that the claimant’s prior conditions, which pre-date her 1992 work injury, are similar and the symptoms resulting from those injuries do overlap to some extent with her 1992 injuries. Simply put, there is no evidence to support a finding that the claimant’s current disability status is not a combination of her prior injuries and her 1992 compensable injury.
Therefore, for all the reasons set forth herein, I respectfully dissent from the majority’s opinion.
______________________________
MIKE WILSON, Commissioner