CLAIM NO. E101227
Before the Arkansas Workers’ Compensation Commission
OPINION FILED OCTOBER 20, 1999
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE ZAN DAVIS, Attorney at Law, Little Rock, Arkansas.
Respondents represented by the HONORABLE ERIC NEWKIRK, Attorney at Law, West Memphis, Arkansas.
Decision of Administrative Law Judge: Affirmed in part and reversed in part.
[1] OPINION AND ORDER[2] The respondents appeal to the Full Workers’ Compensation Commission an administrative law judge’s opinion filed March 22, 1999. The administrative law judge found that the claimant is entitled to wage loss disability in the amount of 60%, in addition to the 10% anatomical impairment rating accepted and paid by the respondents. The administrative law judge found that the claimant is entitled to payment of all medical expenses incurred to date, which are related to treatment of the claimant’s back, lower extremities, and shoulder for injuries or aggravations occurring since the original injury. The Full Commission has reviewed the entire record de novo. We find that the claimant proved that he is entitled to wage loss disability in the amount of 60%, but that he is not entitled to additional medical treatment for his back at the expense of the respondents. We thus affirm the opinion of the administrative law judge in part and reverse in part. [3] The claimant, age 58, received a Bachelor of Arts in Education from Ouachita Baptist University. He worked as a coach and teacher for approximately six years, then went into the insurance business for several years. The claimant then went into investments, where he was a stockbroker, commodity broker, and salesman for several years. The claimant eventually became a furniture salesman, which led him to employment with the respondents, Freight Sales. In addition to sales duties, the claimant testified, his work entailed physically-demanding manual labor of unloading trucks, moving furniture, and stacking inventory. The parties stipulated that the claimant sustained a compensable injury on November 1, 1988. The claimant stated that he had helped unload a truck load of recliners packaged in L-shaped boxes, and was assisting in stacking them, when an overhead box tipped and fell. The box knocked the claimant off a ladder, and he fell about four feet to the concrete floor on his left hip. The claimant testified that he “gimped around a day or so” after the fall but kept working and did not immediately experience further physical problems. [4] After approximately two months, claimant testified, his left leg began atrophying and getting smaller. Dr. C.E. Ransom initially saw the claimant and referred him to a neurosurgeon, Dr. Ronald Williams, who examined the claimant in May, 1989. Dr. Williams reported that the claimant had some back pain, but nothing of any severity, and noted that the claimant’s left calf was two centimeters smaller than the right. Dr. Williams arranged an MRI of the lumbar spine, performed May 25, 1989:
[5] Dr. Kline corresponded in July, 1990:1. Mild desiccation of all lumbar discs consistent with early degenerative disc disease without specific focal HNP or osseous stenosis demonstrated within the canal, neural foraminal, or posterolateral aspects of the disc space.
2. Moderate anterior bulge of the L2 disc, the clinical significance undetermined.
Dr. Williams also reported on May 25, 1989 that EMG and nerve conduction study showed some partial denervation at the S1 nerve root level on the left. “Since the MRI does not show a ruptured disc, I suspect this is going to be on a traumatic basis.” In August, 1989, Dr. Williams reported that the claimant’s left calf was still about two centimeters smaller than the right and had not changed. Dr. Williams opined that the claimant had sustained a bruise of the sciatic nerve which should recover in time. Dr. Williams eventually referred the claimant to Dr. David Kline, whom Dr. Williams described as “the world’s leading authority on peripheral nerve injuries.”
[6] An EMG done today shows a chronic asymmetric sensory motor neuropathy but no real serious deinnervational change that is active or ongoing.An EMG showed normal lower extremity conductions and latencies but some deinnervation in left gastrocnemius suggestive of a sacral root lesion.
. . . He broke the right lumbar transverse process at age nineteen and did not require surgical intervention. He really has no back complaints. . . . He has a slight limp on walking. . . . There is a slight sensory decrease over the sole of the foot. This seems to represent a contusion or bruise to the sciatic nerve. He had a partial loss to begin with and has added on to that partial loss with some further recovery. I believe he can be managed without surgery. He needs to do lots of walking and exercise his foot and leg as much as possible. The only other thing I would try to get done might be an x-ray of that hip to make sure there wasn’t anything more going on with the hip itself.
[7] The claimant followed up with Dr. Kline on March 25, 1991, reporting increased symptoms of weakness, numbness, and pain to the point of interfering with the claimant’s normal activities. Dr. Kline reported:In October, 1990, Dr. Williams had read Dr. Kline’s report and thus suspected that the claimant had probably reached maximal medical healing. In that regard, the claimant testified, “I was doing okay. You know, my leg was getting smaller, but no problems.” On December 6, 1990, Dr. Kline stated that the claimant had probably sustained a contusion to his sciatic nerve as a result of the fall on his buttocks in 1988, and that the claimant would require another two years for a complete recovery. The claimant testified that Freight Sales released him after the injury, and that he became employed at Dillard’s, where he did not have to unload trucks or move furniture.
[8] An EMG done today showed a chronic asymmetric sensory motor neuropathy. The study did not show significant changes in muscles tested today compared to those of the previous study. These included things in the L4-5 and S1 distribution, tibialis anterior, and medial gastrocnemius. [9] Dr. Kline requested that Dr. Williams arrange another lumbar MRI, which was conducted on May 10, 1991 with the following impression:He limps when he enters the office. He has some wasting of the left gastrocnemius and difficulty walking on his toes. On the other hand, flexion of the hip is excellent as are flexion and extension of the knee. Dorsiflexion of the foot is 5/5 and plantar flexion despite the atrophy is 5/5. Extensors of the toes are 5/5 and flexors are 4/5. In measuring his atrophy on the right six inches below the anterior tibial protuberance it is 17″ in circumference and on the left 15-1/2″. He seems to be bothered more by his secondary back symptoms at this point in time.
1. Small far right lateral disc herniation at L3-L4 which may mildly compromise the right L3 nerve root ganglion. This is outside the intervertebral foramen.
2. Very far right lateral disc herniation at L4-L5 of doubtful clinical significance.
3. Diffuse desiccation of the lumbar discs.
[10] Dr. Ransom corresponded on March 17, 1994:Dr. Williams subsequently reported multilevel lumbar spine degeneration, with “some small lateral disc protrusions or herniations on the asymptomatic right side at L3-4 and L4-5.” The claimant continued to have two centimeters of atrophy in the left calf. The impression from a May 29, 1991 MRI of the pelvis was “normal study.” Dr. Williams referred the claimant to a rheumatologist, Dr. Thomas Kovaleski. Dr. Kovaleski’s impression in August, 1991 was osteoarthritis involving the shoulders and left knee, and contusion to the left sciatic nerve from a fall. Dr. Kovaleski wrote, “I do not really have anything to offer him.” Dr. Kovaleski further corresponded on September 30, 1991:
I do believe that Mr. Baldridge has reached maximum medical improvement. I believe he is going to continue to have chronic problems resulting from the sciatic nerve injury that he received. He is going to be limited in his activity and have chronic pain resulting from same. Using “Guidelines to Permanent Impairment” as published by the AMA, I would judge Mr. Baldridge to receive a 10% permanent impairment.
Dr. Williams wrote in November, 1991 that “About a month ago, his leg gave away with him and he landed on his out-stretched right arm. Since then, he’s had a great deal of pain and decreased range of motion in the right shoulder.” A subsequent MRI of the right shoulder revealed “Complete rotator cuff tear which appears chronic with superior migration of the humeral head, erosions in the humeral head and retraction of the musculoligamentous junction.” In April, 1992, Dr. Kovaleski stated that the claimant’s injury limited how much he could work, and wrote that the claimant had obvious quadricep atrophy of the left leg, which he attributed to trauma of the sciatic nerve. Further, “he has definitely suffered permanent injury to the sciatic nerve with continues (sic) paresthesias and atrophy of the left quadriceps.” In September, 1992, Dr. Kovaleski’s impression was post-traumatic sciatic nerve injury with neurogenic muscular atrophy. In December, 1992, Dr. Kovaleski prescribed orthopedic extra-depth boots, walking shoes, and a cane.
[11] In August, 1995, Dr. Kovaleski stated that the claimant was taking medication for post-traumatic neuropathy, “ongoing for three years.” Dr. Kovaleski’s impression was “post-traumatic neuropathy or neuritis with associated chronic pain that is really poorly controlled. I suggested the Pain Center. He is really not interested. I don’t really have much further to offer him. I have discouraged the use of steroids.” [12] Another MRI of the lumbar spine was taken on January 26, 1996, with the following impression:In August of 1988 the patient sustained a fall from a ladder while working at a furniture store, landing on his buttocks. He had been complaining of increased weakness and numbness of the left foot when I saw him. . . . Over the past few years Mr. Baldridge (sic) has become almost totally incapacitated as far as his ability to stand for any length of time greater than 30 to 40 minutes without sitting. He has had a marked atrophy of his left leg and left calf of approximately four to five cm of the left calf. At this time he cannot walk without a limp. He gets up of a morning and has continual pain in the entire left leg and lower extremity. . . . His range of motion is decreased. An EMG in the past has revealed chronic asymmetric (sic) sensory motor neuropathy on the left. Mr. Baldridge has attempted to do light work, as far as tentatary (sic) type work around a neighbor’s farm recently and it has become almost impossible for him to do this. He has pain day and night. . . . During the day he cannot sit for longer than 30 minutes at a time nor stand longer than 30 minutes at a time without experiencing increased numbness and pain. I feel that Mr. Baldridge’s pain is certainly real. I feel that he has chronic asymetric (sic) sensory motor neuropathy of the left leg, most likely secondary to his fall in 1988 when he fell from the ladder. If (sic) feel that Mr. Baldridge it totally and permanently disabled from to hold gainfull (sic) employment and I feel that he should be declared so as soon as possible.
[13] In February, 1997, Dr. Ransom wrote, “Over the past 2 years Mr. Baldridge’s left leg has decreased in size significantly to the point that he has lost approximately 80-85% of the muscle mass in his left leg and 75% of muscle mass in right leg.” [14] Dr. Barry Baskin, a psychiatrist, performed a lengthy independent medical evaluation on February 18, 1997, with the following conclusions:1. Multi level disc degeneration and dessication as described with mild to moderate spondylosis.
2. Broad based right central/paracentral HNP at the L5-S1 level endangering the right S1 nerve root.
3. There is posterior annular bulges noted at the L2-3 level and to a lesser extent, L4-5 level.
[15] Are there any objective findings supporting the need for any continued medical treatment? Relating to this patient’s Worker’s Compensation claim and reported sciatic nerve injury on the left dating back to 1988, there are no objective findings supporting the need for continued medical treatment of that injury at this time. This gentleman does have significant degenerative disk disease and this appears to have developed after his Worker’s Compensation injury and was not apparent on his initial work-up. These medical problems, I think, should be addressed, but they do not appear to be a direct result of his compensable injury. [16] Dr. Baskin thought that the claimant should refrain from a job which required continual standing or heavy lifting, and he noted that the claimant had documented atrophy. [17] Dr. Baskin corresponded on October 20, 1997:Does the claimant need any additional medical treatment as the result of the November 1, 1998 injury? Since it appears that the initial injury was a left sciatic nerve contusion and the patient did not have any significant correctable findings on his lumbar MRI scan or other imaging studies of the pelvis and hips, then I think that no further medical treatment for that injury is needed at this time.
[18] Subsequent to that, his study in 1991 showed a small right L3-L4 disk herniation and a far right lateral disk herniation at L4-L5.It would appear that his initial studies in 1989 only showed some very mild degenerative disk disease without disk herniations.
[19] Based on the above information, I would conclude that within a reasonable degree of medical certainty the patient’s current condition is related more to his degenerative disk condition than to his work-related fall with a probable sciatic nerve injury. [20] The former employee filed a claim for additional workers’ compensation benefits, contending that he was permanently and totally disabled as a result of the compensable injury. The respondents controverted further disability benefits, contending that the claimant had sustained no wage loss disability. The respondents also controverted any medical treatment related to the claimant’s degenerative condition. After a hearing before the Commission, the administrative law judge concluded that the claimant’s lower back problems became more progressive and substantially worse after his fall at work. The administrative law judge found that Dr. Baskin’s opinion regarding causation was not supported by a preponderance of the evidence. The administrative law judge found the claimant to be credible and stated, “I can not foresee any employer, knowing this man’s medical history and physical limitations, offering him a decent paying job where he has to put in a full eight hour day. His only hope is to find a part time position, perhaps working with computers and telephones, that offers him wide latitude and flexibility, where he can alternately sit, stand, and lie down as needed.” The administrative law judge thus ordered the respondents to pay 60% wage loss disability. The respondents appeal to the Full Commission and state that the wage loss award is erroneous. [21] I. WAGE LOSS DISABILITY [22] 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 his earning capacity, the Commission must also consider other factors, such 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 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). [23] In considering the factors which may affect an employee’s future earning capacity, we may consider the claimant’s motivation to return to work, since a lack of interest or a negative attitude impedes our assessment of the claimant’s loss of earning capacity. City of Fayetteville v. Guess, 10 Ark. App. 313, 663 S.W.2d 946 (1984); Oller v. Champion PartsRebuilders, 5 Ark. App. 307, 635 S.W.2d 276 (1982). [24] In the present matter, we affirm the administrative law judge’s determination that the claimant has proven that he has sustained wage loss disability in the amount of 60%. The claimant was a furniture salesman at Freight Sales in 1988, which job entailed heavy manual labor in addition to his sales duties. The claimant sustained an admittedly compensable injury in November, 1988, when a large box of furniture knocked the claimant off a ladder and fell several feet to the floor on his left hip. The claimant “gimped around a day or so” and diligently continued to work, but his left leg started getting smaller. The claimant described this phenomenon in his left leg as similar to “having polio.” The claimant’s family physician, Dr. Ransom, confirmed that the claimant’s leg was “atrophying,” and a neurosurgeon, Dr. Williams reported that the claimant’s left calf was two centimeters smaller than the right. An EMG and nerve conduction study performed in May, 1989 showed partial denervation at the S1 nerve root level on the left. Dr. Williams opined that the claimant had sustained a bruise of the sciatic nerve which should recover in time, but the claimant testified that the respondents fired him after receiving Dr. Williams’ bill. The claimant did not stay home and watch television but instead went to work in floor sales at Dillard’s, where he had to frequently be on his feet but did not have to lift heavy boxes, like he did at Freight Sales. [25] In July, 1990, peripheral nerve specialist Dr. Kline said that electromyography showed deinnervation in the claimant’s left gastrocnemius suggestive of a sacral root lesion. Dr. Kline agreed that the claimant had sustained a contusion or bruise to the sciatic nerve as a result of the compensable injury, declaring in December, 1990 that the claimant would require another two years for a complete recovery. The claimant’s work-related left leg symptoms worsened to the point where he could no longer perform at Dillard’s, so in about 1990-1991 he took a position driving to various schools to sell insurance for a company called National Teacher Organization. The claimant trained in this position for about one month and then worked for a month before having to stop, because he could not handle the long driving and sitting. [26] The claimant worked part-time on a farm for approximately two years from about 1993-94, but the claimant testified he was not able to do much and was politely let go. The claimant has not been able to find work since. The claimant testified that his left leg is weak, and that his left foot is numb. The claimant now suffers from daily, constant pain and spasm in his leg and hip, and is not able to sleep at night. Indeed, as a result of the claimant’s chronic problems related to the compensable injury to the sciatic nerve, Dr. Kovaleski assigned a 10% physical impairment rating in 1991, which the respondents accepted and paid. The administrative law judge found that the claimant has sustained wage loss disability in the amount of 60%, in addition to his physical impairment: “When considering his age of fifty-seven years, which is considered old by most industry standards, his education is good, but he is not physically capable of utilizing all of his mental potential, work experience is good, but re-employment in any of his previous occupations would be limited at best, and considering how all of this will impact his future earning capacity, the sixty (60%) awarded is supported by a preponderance of the evidence.” After de novoFollow-up MRI scan done on 1/26/96 showed posterior bulging at L2-L3, posterior bulging at L4-L5, and a broad based central herniated disk at L5-S1. The 1997 MRI scan that I reviewed today again shows disk bulge at L3-L4 and a central herniation at L5-S1.
It would appear from the review of these MRI scans that the patient’s back problem progressed over the years with increasing degenerative disk and herniated disk problems. This however was not noted on his initial scan more closely tied to the date of his injury in 1988. The first scan did not apparently show herniated disk.
review of the entire record, we affirm this finding. The claimant testified that he can perform some limited physical activities, such as sweeping floors. The claimant’s extensive and varied work experience gives him the chance to procure wages, even if on a limited, part-time basis. [27] II. ADDITIONAL MEDICAL TREATMENT [28] The administrative law judge found that the claimant is entitled to payment of all medical expenses incurred to date, which are related to treatment of the claimant’s back, lower extremities, and shoulder for injuries or aggravations occurring since the 1988 compensable injury to the sciatic nerve. Afte de novo review of the entire record, we must reverse this finding. Employers must promptly provide medical services which are reasonably necessary for treatment of compensable injuries. Ark. Code Ann. § 11-9-508(a) (1987). However, injured employees have the burden of proving, by a preponderance of the evidence, that medical treatment is reasonable and necessary for treatment of the compensable injury. Beatty v. Ben Pearson,Inc., Full Workers’ Compensation Commission, Feb. 17, 1989 (D612291). In assessing whether a given medical procedure is reasonably necessary for treatment of the compensable injury, we analyze both the proposed procedure and the condition it is sought to remedy. Jones v. Seba, Inc., Full Workers’ Compensation Commission, Dec. 13, 1989 (D511255). [29] In the present matter, the 1988 compensable injury involved the claimant’s left hip, which the record indicates somehow injured the claimant’s left sciatic nerve. The claimant limped for a day or so but continued to work and did not seek medical treatment for two months. When he did initially present to a physician, the claimant did so because of pain and documented atrophy in his left leg. An MRI of the lumbar spine, conducted in May, 1989, showed mild dessication of all lumbar discs with early degenerative disc disease, in addition to a moderate anterior bulge at L2, of undetermined clinical significance. A concurrent EMG and nerve conduction study showed partial denervation of the S1 nerve root on the left, and the respondents continue to accept liability for treatment of this condition, which has proved to be chronic and difficult to resolve. [30] In July, 1990, approaching two years after the compensable injury which Dr. Williams determined had bruised the claimant’s sciatic nerve on the left, Dr. Kline reported that the claimant “really has no back complaints.” In December, 1990, Dr. Kline stated that the claimant had sustained a contusion to his sciatic nerve as a result of the compensable fall in 1988, and that the claimant would require an additional two years. Another lumbar MRI was conducted in May, 1991. It showed a small far right lateral disc herniation at L3-L4, outside the intervertebral foramen, and a very far right lateral disc herniation at L4-L5, of doubtful clinical significance. Dr. Kovaleski, the treating rheumatologist, opined in September, 1991 that the claimant had reached maximum medical improvement but would continue to have chronic problems resulting from the sciatic nerve injury. Dr. Kovaleski recommended pain management treatment in August, 1995, but the claimant said he was not interested. [31] A third MRI of the lumbar spine was taken in January, 1996. The impression was multilevel disc degeneration, broad-based HNP at L5-S1 endangering the S1 nerve root, and posterior annular bulges at L2-3 and L4-5. In sum, the medical records show that the claimant’s complaints from 1988 through 1996 were primarily related to symptoms and atrophy in his left leg, arising out of the 1988 compensable contusion to his sciatic nerve. The diagnosis of a herniated lumbar disc in 1996 did not occur in the two other MRI studies. The claimant began to experience acute symptoms in his right leg as well as his left leg in 1996-97. The administrative law judge determined that the claimant’s “altered gait” from his left leg giving way after the compensable injury accelerated or aggravated the abnormalities that have subsequently developed in the claimant’s back. The administrative law judge also opined that the claimant “described numerous falls which occurred because of the weakness in his atrophied leg” which “certainly was not helpful to his low back.” We note that Dr. Ransom opined that the claimant had sustained nerve damage in both legs, which he thought was secondary to the compensable 1988 sciatic nerve injury. We must accord minimal weight to Dr. Ransom’s opinion in this regard, however, because Dr. Ransom is a family practitioner, not a specialist as are the other treating physicians. None of the other treating physicians have attributed the claimant’s back problems to his 1988 injury. We further note that although Dr. Ransom opined that the claimant’s nerve abnormalities which he found to affect both legs were related to the original injury, he did not explain the medical basis for his opinion. [32] From this record, we must attach more weight to the opinion of Dr. Baskin, the physical medicine specialist whose findings essentially reinforced the findings of the other treating neurologists and rheumatologist. Dr. Baskin credibly opined in that the initial injury was a left sciatic nerve contusion, a finding supported by the preponderance of medical evidence. Dr. Baskin wrote in 1997 that the claimant had significant degenerative disc disease which did not appear to be a direct result of the 1988 injury. As we note supra, the respondents continue to accept responsibility for reasonable and necessary medical treatment related to the 1988 injury to the claimant’s sciatic nerve on the left. Nevertheless, we agree with the respondents that treatment for the claimant’s back condition does not relate to the compensable injury, and that the respondents are not liable for medical treatment for this condition. In this regard, we note the claimant’s testimony, “I have a leg problem, not a back problem.” [33] Accordingly, based on our de novo review of the entire record, and for the reasons discussed herein, we find that the claimant is entitled to wage loss disability in the amount of 60%, in addition to the 10% anatomical impairment rating accepted and paid by the respondents. We find that the claimant has proven entitlement to reasonable and necessary medical treatment for the contusion to his sciatic nerve; however, any treatment for the claimant’s back is not related to the compensable injury and is not the responsibility of respondents. We thus affirm in part the opinion of the administrative law judge and reverse in part. [34] 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). [35] 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(b) (Repl. 1996). [36] IT IS SO ORDERED. [37] __________________________
ELDON F. COFFMAN, Chairman [38] Commissioner Humphrey concurs in part and dissents in part. [39] CONCURRING AND DISSENTING OPINION
[40] I concur in part and respectfully dissent in part from the majority opinion in this case. I concur in the finding that claimant is entitled to a wage-loss award of 60% to the whole body. However, I cannot agree that claimant failed to prove entitlement to medical treatment for his back. [41] In 1988, Claimant sustained an injury to his sciatic nerve. On September 30, 1992, Dr. Kovaleski characterized claimant’s condition as “post traumatic sciatic nerve injury with neurogenic muscular atrophy.” His condition is deemed chronic. In a letter dated February 26, 1997, Dr. C.E. Ransom chronicled the treatment claimant has received since the compensable injury. It is clear that his condition has deteriorated since the occurrence of his work-related injury. Dr. Ransom opined that claimant’s current condition is attributable to the work-related injury. The opinion of Dr. Ransom, which I find credible, supports a finding that claimant’s back difficulties are a compensable consequence of his original work-related injury. Thus, I would award medical benefits for the treatment of claimant’s back condition. [42] Based on the foregoing, I concur in part and respectfully dissent in part. [43] _______________________________
PAT WEST HUMPHREY, Commissioner [44] Commissioner Wilson dissents. [45] CONCURRING AND DISSENTING OPINION
[46] I respectfully concur in part and dissent in part with the majority’s opinion. Specifically, I concur in the majority’s finding that the claimant has failed to prove by a preponderance of the evidence that he is entitled to any treatment for his back that is not related to his compensable injury. However, I must respectfully dissent from an award of 60% in wage loss disability benefits. I find that the evidence does not support a finding of any wage loss disability benefits. [47] 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 worker’s 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 LumberManufacturing Co., 235 Ark. 195, 357 S.W.2d 504 (1962). [48] 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 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 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 he falls in the odd-lot category, the respondent has the burden of proving that “some kind of suitable work is regularly and continuously available to the claimant.” Id. [49] 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.Champion Parts Rebuilders, 5 Ark. App. 307, 635 S.W.2d 276 1982. In addition, a worker’s failure to participate in rehabilitation does not bar his claim, but the failure may impede a full assessment of his wage earning loss by the Commission.Nicholas v. Hempstead County Memorial Hospital, 9 Ark. App. 261, 658 S.W.2d 408 (1983). [50] In my opinion, the claimant is not entitled to any wage loss disability benefits. The claimant has a college degree in education and has post-graduate studies in insurance and in the securities business. The claimant has had a vast array of prior work experience in jobs that require no manual labor whatsoever. The claimant has several years of employment as a stockbroker, many years experience in the insurance business, experience as a mobile home salesman, as well as experience in teaching, coaching, and supervising. By the claimant’s own admission, the work he performed at the respondent employer’s facility was by far the most physical labor he had ever performed. In my opinion, the claimant lacks the motivation to return to work. He now simply chooses to stay out of the workforce and draw social security benefits. The claimant even admitted that working as either a stockbroker or mobile home salesman would only physically require him to talk on the phone. [51] There is also evidence that as recently as two years ago the claimant stalked and killed a deer with a crossbow. The claimant was able to load the deer into his truck with the help of his wife. In my opinion, there is absolutely no evidence in the record to support a 60% loss in wage earning capacity. All of the evidence clearly shows that the claimant has the skills and education to perform a variety of jobs. Therefore, for the reasons set forth herein, I respectfully concur in part and dissent in part. [52] _________________________
MIKE WILSON, Commissioner