CLAIM NO. E211064

WESLEY ADAMS, EMPLOYEE, CLAIMANT v. TYSON FOODS, SELF INSURED EMPLOYER, RESPONDENT

Before the Arkansas Workers’ Compensation Commission
OPINION FILED AUGUST 18, 1995

Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.

Claimant represented by the HONORABLE JEFF WATSON, Attorney at Law, Springdale, Arkansas.

Respondents represented by the HONORABLE EARL “BUDDY” CHADICK, Attorney at Law, Fayetteville, Arkansas.

Decision of Administrative Law Judge: Reversed.

[1] OPINION AND ORDER
[2] The claimant appeals an opinion and order filed by the administrative law judge on March 15, 1995. In that opinion and order, the administrative law judge found that the claimant failed to prove that he is entitled to permanent and total disability compensation. After conducting a denovo review of the entire record, we find that the claimant has proven by a preponderance of the evidence that he is entitled to an award of permanent and total disability compensation. Therefore, we find that the administrative law judge’s decision must be reversed.

[3] The claimant sustained an admittedly compensable hernia on April 29, 1992, while dumping a barrel filled with dough. On June 22, 1992, Gareth Eck performed a “laparoscopic herniography” on the claimant to repair the hernia. Although the hernia bothered the claimant significantly prior to this surgery, he was able to walk and to stand up. However, after the surgery he began to experience severe problems which were substantially different from the problems he experienced prior to the surgery. In this regard, the location of the claimant’s pain prior to the surgery was primarily in his upper pelvic region, but, after the surgery, the pain was located in his upper right leg. In addition, his stance was not affected prior to the surgery, but, after the surgery he couldn’t stand straight due to the increased pain. He also experienced difficulties walking subsequent to the surgery that he did not experience prior to the surgery.

[4] As a result of these problems, the claimant was seen by Dr. Michael W. Morse, a neurologist. After examining the claimant on December 11, 1992, Dr. Morse opined that the claimant “most likely suffered an injury to his right ilioinguinal nerve during [the] surgical procedure,” and he recommended surgical exploration of the area. Consequently, Dr. Eck surgically explored the claimant’s right groin area on January 22, 1992. During this procedure, Dr. Eck discovered that a staple was in fact completely around the ilioinguinal nerve and that three staples had pierced the surrounding muscle tissue, including the staple that was entrapping the ilioinguinal nerve. Dr. Eck described this finding as “most surprising.” He surgically released the entrapped nerve. The report indicates that Dr. Eck did not discover any evidence of herniation during this second procedure. Nevertheless, he decided to reinforce the prior repair with a different kind of repair.

[5] Dr. Eck’s second surgery did not relieve the claimant’s problems. He experienced even greater problems with his stance. He lost control of his right leg at times, causing him to fall, and he had to use crutches or a cane due to this problem. Dr. Morse performed additional testing to rule out the possibility of a herniated nucleus pulposus and a plexus injury, but no abnormality was revealed by these tests to explain the etiology of the claimant’s problems.

[6] Due to his continued problems, the claimant requested a second opinion, and he was referred to Dr. John Kendrick, a surgeon. Dr. Kendrick’s initial examination on March 2, 1993, was consistent with a recurrent hernia, so, on March 8, 1993, Dr. Kendrick performed a third surgical procedure on the claimant to remove the mesh that was used in the initial repair and to again repair the defect. During this procedure, Dr. Kendrick discovered that the mesh previously used was “stapled in such a manner to be stapled to things that probably it should not have been stapled to, and, basically resulted in having a recurrent hernia.” In this regard, Dr. Kendrick made the following comments in deposition testimony:

These are, of course, technicalities, but, basically, the foundation or the anchor of this repair is Coopers ligament. That is what gives the strength to the repair, if you will, and none of the staples were to that particular ligament. They were to various things which had no strength, which resulted in his recurrence of the hernia since there was no foundation. I commented specifically that was [sic] stapled to the serosa of the cecum, which is the very most outer lining of the large intestine near the appendix. Right at the junction of the appendix, and I found it stapled to what — the serosa of the bladder, which is more toward the mid-line, and the bladder — the serosa of the bladder is the outermost covering of that organ. I stated that much of the mesh or material was interperitoneal, which means it was inside the peritoneal cavity where it is not supposed to be. It’s supposed to be in what’s called the preperitoneal space. It was not there. It was not in that space. I found adhesions to it, which means the intestine was scarred to it. The intestine is not supposed to be in contact with it. Not that it hurts it, and none of these staples damaged the organs that I’m speaking of. Okay? They did not do any damage. That’s just what I found.

[7] Due to the nature of Dr. Kendrick’s approach during this surgery, he did not examine the ilioinguinal nerve.

[8] The claimant demonstrated considerable improvement after this third surgical procedure, and he could stand up straight. However, he continued to experience significant pain in his right leg where the leg meets the torso, and he continued to lose control of his leg, necessitating the use of a cane. According to the claimant’s testimony, he continued to experience constant pain in the leg at the time of hearing which he described as a burning, stabbing type of pain. Due to this pain, his lifting is limited to 25 pounds, and he is unable to carry that amount of weight any distance. He cannot lift his grandchildren, who are 2 years old and 4 years old, and he cannot carry groceries. He attempted to make apple boxes for a friend with an apple shed, but he was unable to do this.

[9] Jim Taylor, plant nurse for the respondent employer, testified regarding his observations of the claimant, and his testimony essentially corroborates that of the claimant. Mr. Taylor also testified that the respondent employer had attempted to return the claimant to work but was unable to do so because of the problems that he was experiencing with his leg, particularly the problem with his leg giving way.

[10] Dr. Kendrick continued to follow the claimant after the third surgical procedure. He notes that the claimant’s continued problems are in the femoral nerve distribution, and he has opined that the problems are caused by a femoral nerve neuropathy. Electrodiagnostic studies of the femoral nerve were essentially normal, although they did reveal “significantly decreased volitional recruitment of the muscle groups involving the femoral nerve on the right side.” However, according to Dr. Kendrick, it is difficult to test the femoral nerve with such studies. However, the claimant was treated by Dr. Carl Covey and William Money at The Center for Pain Management, and epidural testing performed by these physicians has been consistent with a femoral nerve injury. Regarding their diagnosis, Dr. Covey made the following comments and a letter to the claimant’s attorney dated April 13, 1994

. . . I do not believe that we have specifically stated that Mr. Adams has a femoral nerve injury. EMGs of the femoral nerve in the past have been documented as normal. However, what we have been able to demonstrate are three specific items, and are as follows: 1) On differential epidural testing, the patient’s pain is clearly physiologic in nature, as opposed to nonphysiologic or central pain problem. 2) We have demonstrated that the patient’s pain cannot be relieved with a simple sensory nerve blockade of the inguinal region, such as block of the ilioinguinal or iliohypogastric or genitofemoral sensory nerves. 3) We have been able to demonstrate that the only way to relieve his pain adequately is a larger volume block of the entire femoral nerve or, for instance, a spinal block.
What this indicates is that as far as a cure of this pain problem, such as a neurodestructive procedure, the implied procedures with very low morbidity and disability, such as clipping the small sensory nerves in the inguinal region are not effective in relieving the patient’s pain. The alternative is a procedure that would involve neurodestruction of at least part of the femoral nerve, which would leave the patient with possibly some significant weakness and deficits in the right lower extremity.

[11] Dr. Kendrick also referred the claimant to Dr. Dennis Lucy, chairman of the Department of Neurology at the University of Arkansas for Medical Sciences. However, after examining the claimant and reviewing the past electrodiagnostic studies, Dr. Lucy was not able to provide any explanation regarding the source of the claimant’s problems. Dr. Morse also continued to follow the claimant after the third surgery. However, by August 3, 1993, he concluded that he could not diagnose the cause of the problems or offer any suggestions regarding treatment. In this regard, Dr. Morse made the following comments:

At this point in time, I don’t have a diagnosis on him. In spite of our best efforts, we have been unable to help this gentleman. My recommendation would be to fly him to the Mayo Clinic in Rochester, Minnesota, for their thorough evaluation. . . .

[12] Dr. Morse did release the claimant to return to work on June 22, 1993. However, he made the following comments when he did so:

. . . He is much more mobile and active. He is ready to return to work part-time, but he really can’t do any significant activity. He finds that sitting and standing both cause him to hurt and he has to alternate his activities. He overall feels much better than he did in the past however.

[13] Dr. Kendrick has opined that the claimant is permanently and totally incapacitated from significant productive activities.

[14] Initially, we find that Ark. Code Ann. § 11-9-523
(1987) does not bar an award of permanent and total disability compensation in this claim. In this regard, the Arkansas Workers’ Compensation Law provides a special section for the compensation of employees who sustain work-related hernias. Ark. Code Ann. § 11-9-523 (1987); seealso, Jobe v. Capitol Products Corp., 230 Ark. 1, 320 S.W.2d 634 (1959); Rash v. Goodyear Tire Rubber Co., 18 Ark. App. 248, 715 S.W.2d 449 (1986); Tibbs v. Dixie Bearings, Inc.,9 Ark. App. 150, 654 S.W.2d 588 (1983). Consequently, the compensation payable for a work-related hernia is limited to that provided in the statute. Id. This limitation is applicable even where the employee sustains a hernia which is worse in severity than that sustained by most individuals. Id.

[15] However, in the present claim, the evidence establishes that the claimant has recovered from the hernia and that his problems are the consequence of injuries to his body caused by the operations performed to repair the hernia. In a recent opinion, this Commission found that the limitations of Ark. Code Ann. § 11-9-523 are not applicable to complications which are a consequence of the occurrence of the hernia but which are separate and distinct from the hernia itself. Bobby Green v. Carroll General Hospital,
Full Workers’ Compensation Commission, opinion filed July 10, 1995 (Claim No. E210541). In Green, we found that the claimant’s problems were caused by nerve entrapment which was separate and distinct from the hernia itself, and we found that the claimant was entitled to temporary total disability compensation in excess of the 26 weeks of compensation provided for Ark. Code Ann. § 11-9-523.

[16] As we noted in Green, neither our Courts nor the Commission had previously directly decided whether the limitations of Ark. Code Ann. § 11-9-523 apply to limit the compensation payable for complications caused by the hernia but not directly related to it. However, we also noted that our Courts have considered cases where the employee contended that he was entitled to compensation in excess of that provided by the statute because his hernia was accompanied by complications. However, in each of those cases, the Court concluded that there was no complication other than the fact that the employee suffered a hernia that was more severe than that suffered by most individuals who sustain hernias. In Jobe, supra, the claimant contended that his hernia was accompanied by complications which resulted in a substantial permanent disability, and he sought permanent disability benefits in excess of the benefits provided by the statute. However, the medical evidence showed that the complications alleged were related to a weakness of the fascia, and the Court agreed with the Commission’s conclusion that “[t]he very occurrence of hernia denotes a weakness of the fascia.” Consequently, the Court concluded that the claimant’s disability was “the result of the hernia” and “that the statute does not provide additional benefits because a particular injury in this category happens to be more severe than the usual injury.” Likewise, in Smith v. Riceland Foods, 261 Ark. 10, 545 S.W.2d 604 (1977), the claimant sustained five hernias while employed by the respondent, and he contended that he was permanently and totally disabled. However, relying on Jobe,supra, the Court found that the claimant’s disability was caused by his susceptibility to the recurrence of hernia due to an inherent weakness of the fascia. Therefore, the Court found that the claimant’s disability was the direct result of the hernias and, consequently, that he was limited to the benefits provided by the statute. In Tibbs, supra, the claimant had four hernias surgically repaired, and he contended that he was entitled to permanent disability compensation which would exceed the limitations of the statute because of complications. In this regard, the claimant was allergic to the silk sutures used in the surgeries, and he experienced multiple stitch infections due to this allergy, resulting in the need for additional surgery to remove the sutures. However, the Court concluded that the infections did not result in any disability separate or distinct for the hernia itself. Consequently, the Court found that the claimant was limited to the compensation provided by the statute. Under similar facts, these decisions were also followed in Rash, supra.

[17] Consequently, while the compensation payable for disability resulting directly from a hernia is limited to the compensation provided in the statute, the statute is not applicable to complications which are a consequence of the occurrence of the hernia but which are separate and distinct from the hernia itself. In the present claim, Dr. Kendrick opined that “the hernia repair itself had definitely stabilized and healed in a normal manner.” Likewise, diagnostic testing failed to reveal any evidence of a hernia. However, the second surgery of Dr. Eck confirmed the presence of actual damage to the ilioinguinal nerve, and Dr. Morse and Dr. Kendrick have both indicated that damage to this nerve can result in permanent problems which are consistent with the claimant’s complaints. Furthermore, while diagnostic testing has not been able to precisely confirm the exact etiology of the claimant’s problems, the testing of Dr. Covey and Dr. Money confirms the physical nature of the claimant’s complaints of pain and suggests a femoral neuropathy. This finding regarding the femoral neuropathy is consistent with the distribution of the claimant’s pain and with the clinical findings of tenderness in the area of the femoral nerve. The claimant was not experiencing any of these problems prior to the first surgery to repair the compensable hernia.

[18] Consequently, in the present claim, we find that the claimant’s disability results from injuries sustained during the first two hernia repair operations, not from the hernia itself. Therefore, while the resulting disability is a consequence of the occurrence of the hernia, it is separate and distinct from the hernia itself. Furthermore, the situation present with this claim is similar to that present where an injury scheduled in Ark. Code Ann. § 11-9-521
results in an injury which is not scheduled in the statute. While the Courts have consistently held that the compensation payable for injuries scheduled in Ark. Code Ann. § 11-9-521 is limited to the compensation provided by the statute, they have also found that the statute does not limit the compensation that the claimant may be entitled to receive for a nonscheduled injury found to be attributable to the scheduled injury. Clark v. Shiloh Tank and ErectionCo., 259 Ark. 521, 534 S.W.2d 240 (1976); Milburn v.Concrete Fabricators, Inc., 18 Ark. App. 23, 709 S.W.2d 822
(1986). Consistent with the principle applicable to other scheduled benefits and our decision in Green, supra, we find that the limitations of Ark. Code Ann. § 11-9-523 are not applicable to complications which are a consequence of the occurrence of the hernia but which are separate and distinct from the hernia itself. Therefore, we find that the statute does not limit the claimant’s entitlement to compensation for permanent and total disability. Therefore, we find that the administrative law judge’s decision in this regard must be reversed.

[19] In addition, we find that the claimant proved by a preponderance of the evidence that he is permanently and totally disabled. 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 LumberManufacturing Co., 235 Ark. 195, 357 S.W.2d 504 (1962).

[20] Likewise, an employee who is injured to the extent that he 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. CamelotHotel, 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 employee from obtaining employment in any reasonably stable market, although the employee is not altogether incapacitated from work. Id. In this regard, 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 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.

[21] In the present claim, the claimant was 47 years old at the time of the hearing. He did not complete the 6th grade in school, and he has not obtained any additional education. He cannot read or write. His work experience consists entirely of physical labor type occupations, and it includes pulling cotton, picking beans and strawberries, hauling hay, automotive mechanics, welding, and working in chicken processing plants. At the time of his injury, he was working in a janitorial type position for the respondent employer. Credible objective findings show that he is experiencing pain and leg weakness as a consequence of the complications caused by the occurrence of the compensable injury, and the evidence establish that these physical problems limit his ability to engage in the physical activities involved with his previous employments.

[22] Considering all of the relevant factors, including the claimant’s age, limited work history, lack of education, and physical limitations, we find that the claimant has made a prima facie showing that he falls in the odd lot category. Furthermore, we find that the respondent employer failed to come forward with evidence showing that some kind of suitable work is regularly and continuously available to the claimant. In fact, the evidence shows that the respondent employer has determined that the claimant’s physical problems precludes his return to work for them. Therefore, we find that the claimant has proven by a preponderance of the evidence that he is permanently and totally disabled.

[23] Accordingly, based on our de novo review of the entire record, and for the reasons discussed herein, we find that the claimant has proven by a preponderance of the evidence that he is entitled to an award of compensation for permanent and total disability. Therefore, we find that the administrative law judge’s decision must be, and hereby is, reversed.

[24] 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
(1987). 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) (1987).

[25] IT IS SO ORDERED.

JAMES W. DANIEL, Chairman PAT WEST HUMPHREY, Commissioner

[26] Commissioner Tatum dissents.

[27] DISSENTING OPINION
[28] I respectfully dissent from the majority’s determination to reverse the decision of the Administrative Law Judge. In my opinion, the record is clear. Claimant suffered a hernia and the hernia statute specifically limits an employee’s benefits to 26 weeks. Thus, claimant should not be entitled to additional benefits. Even if the statute permitted additional benefits, in my opinion, the medical evidence does not support the claim for additional compensation benefits. The extent of claimant’s disability is supported solely by claimant’s subjective complaints of pain. Since claimant’s claim is not supported by objective and measurable physical and mental findings, the claim should be denied and dismissed. Therefore, I respectfully dissent from the majority’s opinion.

[29] ALLYN C. TATUM, Commissioner