CLAIM NO. E612558


Before the Arkansas Workers’ Compensation Commission

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

Claimant represented by RICHARD A. REID, Attorney at Law, Blytheville, Arkansas.

Respondent represented by THOMAS J. DIAZ, Attorney at Law, Little Rock, Arkansas.

Decision of Administrative Law Judge: Affirmed.

[1] The Administrative Law Judge conducted a hearing on claimant’s case on March 9, 1999 to determine whether claimant is permanently and totally disabled, and the amount of any wage loss to which claimant might be entitled. The Administrative Law Judge determined that claimant failed to prove that she was permanently and totally disabled, but that she did prove by a preponderance of the evidence that she is entitled to additional permanent partial disability benefits in the amount of 15% to the body as a whole (including the 5% wage loss accepted by Respondents).

[2] Respondents appealed the decision of the Administrative Law Judge that claimant is entitled to permanent and partial disability benefits in an amount equal to 15% to the body as a whole as a result of lost wage earning capacity, and that claimant is entitled to an award of attorney’s fees on the wage loss over and above 5%. Claimant cross-appealed, arguing that she is entitled to far more than 15% wage loss and that she is permanently and totally disabled, but arguing in support of the Judge’s ruling in that anything over and above that previously paid by respondents was controverted.

[3] We affirm the Administrative Law Judge’s finding that claimant is not permanently and totally disabled, that she is entitled to the 15% wage loss, and that respondents did controvert an award of benefits.

[4] The hearing record contains the testimony of claimant, Debbie Goforth and Allene Barnett, and documentary evidence on the form of claimant’s medical records. Claimant testified that she was 64 years old at the hearing, that she started the eleventh grade but quit, that she does not have any additional training or her GED but she can read and write, balance a checkbook, and run a household. She does not drive. Claimant never had any trouble getting to work even though she did not drive. In her various factory jobs, she was trained to work different pieces of equipment. Claimant began working for respondent in 1992, running a molder machine. She had not had any injuries on or off the job before she went to work for respondent.

[5] Claimant testified that on August 17, 1996 when she was injured, she was walking in to work. She let herself in the door with her time card, took a few steps inside and her feet “flew out” from under her. “The floor was wet and real sticky.” Claimant went “airborne” and landed on her back. A surveillance tape recorded her fall. She was taken by ambulance to the emergency room in Blytheville, where she was x-rayed, given some pain pails and told to see the company doctor on Monday. She saw the company doctor, Dr. Russell on four occasions, and he referred her to Dr. Yao, a bone specialist. Dr. Yao referred her to Dr. Hackbarth at a pain management clinic. Dr. Braden also ran some tests on claimant.

[6] Claimant testified that Dr. Yao explained to her that she had a depressed vertebrae at T12 and two fractures, one three inches above her left wrist and the other on her left hand above her thumb joint.

[7] Claimant testified that she did not have to pay any of her medical bills. The company accepted her claim as compensable. The company has not denied her any treatment or bill payments to her knowledge. Claimant is drawing retirement benefits from Social Security but not disability because that would offset her workers’ compensation benefits.

[8] At the hearing, claimant explained her current condition as follows:

I can’t do nothing. I stay in pain constantly. I can’t sleep at night. I can’t walk very far `cause my hips start hurting in my hip socket. I can’t walk no inclines or down an incline. My back hurts all the time. And I can’t do my housework, like vacuum. Or if I do the laundry, it hurts me to do, pull heavy clothes like towels and blue jeans from the washer.
Claimant was wearing a TENS unit at the hearing. She explained that it “shocks the pain” with electrical shock waves. She stated that it hurts her to bend, stoop and then straighten up. Claimant cannot lift with her left hand. “It hurts my back. Or stretching and putting dishes up in the cabinet. I just have to stop.” Claimant requires help getting milk out of the refrigerator, shopping and pulling meals out of the oven. “But every move I make, I hurt somewhere.”

[9] Claimant explained that there are “times I can’t lift my arm up over my head. . . . It hurts up in my shoulder too. And on my shoulder blade in my back to my left shoulder.”

[10] Claimant explained that before her fall she was very active, that she gardened, and mowed her yard.

[11] Claimant testified that she cannot be a line server in a cafeteria, because she cannot walk very far or carry “stuff” and she cannot stand very long. She was asked whether she could get to a job at a cleaners to which she responded “I couldn’t. I just couldn’t do it. I can’t do my housework.” Claimant explained that she could not do the job stuffing fliers in newspapers because:

Well, it would take picking the papers up and putting — if anybody’s ever been to a newspaper office they know they put them in bundles in the floor. And you either have to work in the floor or pick them up and put them on a desk and then insert the fliers.
Claimant also stated that she would have to find a ride to work for each of those jobs as well, and also that riding in a car hurts her too. Claimant`s inability to drive limits her ability to take part time jobs.

[12] Claimant stated that she was not paid mileage for five trips to Jonesboro to see Dr. Braden.

[13] Claimant stated that if she had not been injured, she would not have retired at 62, but would have kept working til she was 65 and longer if she was able.

[14] Claimant stated that she took a functional capacity evaluation but it came back invalid. She also underwent a nerve conduction study. Dr. Braden told her the nerve had “restored itself” but claimant stated that it had not because she still had pain in her arm and hand. Claimant was unable to recall what the psychiatrist or psychologist said about claimant’s condition.

[15] Claimant has not been scheduled for or ever had surgery on her back or her left hand or wrist.

[16] Claimant denied telling Ms. Rhoads, the vocational specialist, when she was at claimant’s home, about her redecorating or showing her the redecorating that claimant had done in the living room. She stated “As far as I know, I hadn’t done nothing, but I do have some curtains. But I have a 27 year old son that lives with me that helps put stuff like that up, or to put it up.”

[17] Claimant did admit to meeting with Ms. Rhoads, who tried to find some jobs that claimant could do. Claimant stated that she could not greet customers — say hello — eight hours a day if she was allowed to alternate standing and sitting. She stated she could not operate a cash register. Claimant stated that she has never worked in a newspaper office, but that most of her seven sons were paper boys and she went to the newspaper office to pick up their papers. Claimant never went into the newspaper office to find out what would be required of her to do the job of inserting fliers in newspapers.

[18] Claimant had not heard of a job at Baptist Memorial Hospital. She stated that she never contacted any of the potential employers about the positions Ms. Rhoads identified for her, not the cleaners, the newspaper, the line server position. “I don’t think I could hold up.” She has not contacted any employers since her injury. Claimant stated she would go back to work if she could, but she cannot. Claimant has not tried to go back to work.

[19] On redirect, claimant explained that she has not tried to return to work because “the way I stay in pain, I just can’t get out and find a job.” Claimant stated that she did not think there was an ABC Cleaners in Blytheville. The jobs she was told about were two newspapers in Jonesboro and one in Blytheville.

[20] The judge questioned claimant as well. Claimant testified that she does her own laundry and watches television. She walks around her house. She stated that sometimes she goes to do something and then cannot remember what it was she wanted to do. Claimant stated that she was always active with her children and fishing and camping but she cannot do any of that anymore.

[21] Claimant takes blood pressure medication, cholesterol medication and an “inflammatory.” She also takes aspirin and Aleve or Tylenol. She testified that when Dr. Yao dismissed her he told her he could write her a prescription as long as she needed one. She called for an appointment and was told she would have to be referred by the company doctor again but was given a prescription. Claimant has a TENS unit and a back brace, which she uses if she is in a car any length of time or if she goes to the grocery store.

[22] Debbie Goforth testified that she is claimant’s daughter and she sees claimant every day. She testified that before her injury claimant “did everything.” Claimant assisted Goforth with her children and did Goforth’s gardening. She helped with her sister’s children too on top of her twelve hour work days.

[23] Goforth testified that since claimant’s fall, she has been ill and sick. Claimant will not get out or come over to Goforth’s home because she is too tired and she is in pain. If she does go to Goforth’s home for a meal, she has to lie down during the meal. Goforth stated that claimant had never had pain like this, or at all, before her fall. Goforth has observed claimant’s difficulty moving pans around and getting things out of the oven, and walking up a slight incline. She testified that claimant cannot go up bleachers to see her grandchildren play sports. She cannot go fishing or camping anymore. She cannot carry canned goods, some even to put in her shopping cart. She cannot carry heavy grocery sacks.

[24] Goforth thinks that claimant could “absolutely not” work at anything. Goforth stated that her family could not think of anything for claimant to do that will not cause her pain, even greeting at Wal-Mart. She described claimant’s reluctance to get out. Goforth stated that while her family did not make any calls they did speak to folks about work for claimant.

[25] Allene Barnett testified that she has known claimant since 1984, when they worked together. She described claimant as a fast worker. Barnett stated that she is claimant’s “wheels,” that she takes claimant to Jonesboro, to doctors. Since claimant got hurt, “she keeps dragging me because I have to try and keep pace with her more. She’s so slow that it drags us down. When we shop, I have to shop according to how long she can last, in groceries.” Barnett stated that claimant “doesn’t attempt too much. We have to watch to see that she doesn’t try to pick up things that we usually do for her.”

[26] Barnett is 77 years old. She does not think there is any job claimant could do now. “Definitely not. I don’t think she could handle anything when she can’t go across the yard without me having, to the car and lots of times we have to help her in the car. And if she gets down, we have to — well, we have to see that she’s out of the doorway without falling.” Claimant was not like this before her fall.

[27] The record contains claimant’s medical records and communications from her physicians.

[28] An admissions record from Baptist Memorial Hospital states that claimant arrived in the Emergency Room on August 17, 1996 at 3:24 a.m. by ambulance with complaints of pain to back and left wrist. An x-ray report of her lumbar spine including obliques and of her left wrist from the same date states that:

Lumbar vertebral bodies demonstrate normal height maintenance and alignment. Intervertebral disc spaces are well maintained. Patient does have mild diffuse degenerative changes. The SI joints are unremarkable. There is diffuse calcification of the abdominal aorta, without evidence of aneurysm.
Impression: 1. Mild degenerative joint disease lumbar spine.

2. Aortic calcification.

[Left Wrist] Patient has a splint in place. There’s no evidence of fracture, subluxation or foreign body present.

[29] Another emergency room record from the same date reflects a diagnosis of back strain with direction to follow up with regular doctor if claimant did not get better or got worse. A return to work form from the emergency room stated no lifting or carrying and no stooping, bending or crouching, and that she could return to full duty the same day.

[30] Dr. Yao wrote a letter to respondent on August 27, 1996 stating that after his examination of claimant and review of her x-rays, his diagnosis was lumbar strain and left wrist sprain. He released her to light duty on August 28, 1996. “She could do sitting work with limited standing or walking. She should not lift more than 2-5 pounds. She should not do bending work.”

[31] Dr. Yao again wrote respondent on September 6, 1996 regarding his re-examination of claimant:

. . . She feels slightly improved. She has low back pain radiating to bilateral posterior hips. Pain is worse with sitting. She is using a lumbar support. Her left wrist is also less painful. She continues using her left wrist splint. . . She is on temporary disability since no light duty was available. . .
Impression: Lumbar strain and left wrist sprain both improved.

[32] Dr. Yao continued her limitations from August 27, 1996.

[33] A September 18, 1996 letter from Dr. Yao to respondent states:

. . . She says her low back pain is worse than previously. Her right lower leg is intermittently numb. She is on Voltaren XR without any relief. Her left wrist is sore but slightly better. She is having aching in her left shoulder and upper arm. She is unable to lift her left arm. Her left wrist feels weak. She remains on temporary disability since no light duty was available. She needs to wait until she has improved enough to return to regular work duty.
Dr. Yao added left shoulder impingement syndrome to his impressions and prescribed a new medication, heat, lumbar support, home exercises, physical therapy for lumbar rehabilitation program, and limited her to light duty with no bending, no lifting more than 2 pounds.

[34] Dr. Yao’s letter to Respondent of October 2, 1996 states:

. . . Her main problem is continued low back pain. However, she notes slight improvement. The muscles in her low back feel better. Pain is worse with back extension. She is having physical therapy. She finds Lodine seems to help. She stopped sleeping on her left shoulder and that pain has resolved. Her left wrist is almost back to normal with only a feeling of slight weakness. She is working on wrist exercises.
His impression was “main problem is lumbar strain; left wrist sprain, almost resolved; left shoulder impingement syndrome, resolved.” He continued his previous recommendations and suggested “extending temporary disability two weeks with re-examination at that time.”

[35] Dr. Yao’s letter of October 16, 1996 to respondent reflects:

. . . She has daily pain mainly in her right lumbar area. Pain at night makes sleep difficult. Laying on her back causes tingling in both legs. She has some days that are slightly better and other days that are worse in terms of pain intensity. She is doing home exercise and receiving physical therapy. She is using Lodine and also a lumbar support which she finds helpful.
Dr. Yao’s impression was a lumbar strain with a “small possibility lumbar disc herniation. Bilateral leg intermittent tingling.” He continued her medication but stopped her physical therapy. Dr. Yao suggested an MRI of the lumbar spine “to evaluate possible lumbar disc herniation especially since patient’s progress has been very slow.” He extended her temporary disability another two weeks.

[36] A radiology report dated October 18, 1996, reveals that claimant under went a MRI of the lumbar spine:

There is a compression fracture of the T12 vertebral body. Axial T1 projections through this vertebral body showed no evidence of tumor, but tumor cannot be completely excluded.
No disc herniation or protrusion. The cord is clear. Bony structures are otherwise intact.
Impression: Loss of signal with compression fracture deformity of the T12 vertebral body. This is most likely secondary to trauma, but neoplastic involvement cannot be completely excluded. For this reason, an isotope bone scan may be helpful. Note that the x-ray lumbar spine of 08/17/96 was reviewed which does not show significant compression at that time, and the compression at this study has increased from the previous lumbar spine x-ray.

[37] Dr. Yao wrote respondent on October 20, 1996 in reference to the above MRI. He described the results and the fact that “a compression defect of this magnitude was not present” on her August 17, 1996 x-ray, but that on the lateral view there is “an almost imperceptible anterior defect to the T12 vertebral body.” Dr. Yao noted that he called claimant to discuss the findings. The normal healing time for compression fractures is six to eight weeks, however, “there may be some residual pain beyond that length of time. There sometimes may be some permanent residual discomfort.” His recommendations remained the same.

[38] Dr. Yao’s October 30, 1996 letter to respondent states:

. . . She is still have pain maximally in the right lumbar area and also some left periscapular pain. Pain is not improved. Lodine gave no relief. She is using Equate. She has difficulty sleeping at night. She is using her lumbar support which helps during activity. She is doing home exercises. Her right leg feels numb in bed at night. Her left forearm has been sore this week. Her left wrist feels weak and sore.
Dr. Yao’s impression was lumbar strain, T-12 compression fracture and left wrist sprain. He changed her medication to Daypro and prescribed a TENS unit. He instructed her to gradually increase her activities as tolerated and extended her temporary disability another two weeks.

[39] On November 13, 1996, Dr. Yao’s letter to respondent reflected that claimant:

. . . has had increased back pain yesterday and today which she attributes to the cold weather. Pain is worse beneath her left scapula. She also has left arm pain, but no numbness. She is unable to sleep on her left shoulder. She is unable to lift objects even a skillet with her left arm. Today, she has pain extending up to her neck. She is trying to do exercises including walking about two blocks per day. She has been on Daypro without relief.
Dr. Yao’s impression was lumbar strain, left wrist sprain improved and T12 compression fracture. He switched her to Relafen and recommended that she obtain a TENS unit, which she had not done after last visit, and he extended her temporary disability another two weeks.

[40] Dr. Yao wrote to respondent on November 27, 1996 that:

She still has pain mainly in the left periscapular area radiating down to the left hand and axilla. Pain also extends down to her hips. The level of pain fluctuates and is worse with weather changes. She has difficulty getting out of bed in the morning and has pain riding in car. Her left hand feels numb. Her activity level is very limited. Even light housework causes increased pain. She has difficulty lifting a skillet. She has no leg pain or paresthesias except for leg tingling at night in bed; she describes this as a cold feeling. She describes the initial injury as falling with her left hand behind her head. She feels this stretched her left shoulder area muscles. She is working on home exercises. Her TENS unit gives about 20 minutes pain relief. Relafen also gives some relief.
Dr. Yao repeated his impression of T12 compression fracture and continued pain back and left arm. He added no new treatment, and stated “anticipate some improvement with time. It is premature to determine permanent impairment at this time.”

[41] Dr. Yao’s December 18, 1996 letter to respondent states:

She said she is having constant pain in her thoracic spine area, left arm and hand. She has a hot burning pain that radiates into the fingers of her left hand. Pain radiates into her left axilla. She is unable to lay on her left side and has difficulty sleeping at night. She believes symptoms are worsening. Her left hand feels weak and she has difficulty lifting. The TENS unit gives about 20 minutes of relief at a time. She has had no unintentional weight loss.
His impression was thoracolumbar strain and possible left carpal tunnel syndrome. He prescribed a wrist splint and Naprelan in place of Relafen. “Suggest EMG/NCT left arm to further evaluate the burning pain radiating into the fingers of the left hand.” Dr. Yao suggested extending her temporary disability period another three weeks because “her progress has been slow and in fact there really has not been much progress at all. It is uncertain when she will be able to return to work.”

[42] On January 19, 1997, Dr. Yao wrote respondent concerning the results of her January 13, 1997 left upper extremity electrical tests. “These demonstrate both demyelination and axonal damage. There is no sign of carpal tunnel syndrome. . . . It may be worth while to try steroid injection to the cubital tunnel. She may ultimately benefit from ulnar nerve decompression.”

[43] Dr. Yao’s January 22, 1997 letter to respondent states:

She is having left hand pain, swelling and numbness. She originally fell with her hand behind her head. She is still having low back pain. The intensity of the pain fluctuates. However, she states she is unable to do housework including vacuuming. She has pain even with carrying a milk bottle. Back pain increases with sitting. She uses a lumbar support which gives only slight relief. She is unable to sleep on the left side.
Electrical studies of left upper extremity 1/13/97 consistent with left ulnar neuropathy involving both demyelination and axonal damage. . . . Dr. Wright . . . said there is significant ulnar nerve injury at the elbow and this makes it impossible to determine is there is also concurrent ulnar nerve injury at the wrist.
Dr. Yao’s impression was T12 compression fracture, thoracolumbar strain, left ulnar neuropathy at elbow level. He performed a cubital tunnel injection of xylocaine and Celestone as a non-operative measure to improve her left hand symptoms. He extended her temporary disability because after five months, she has not had “any recent significant improvement.” He felt that it would “seem unlikely” that she might return to her pre-injury job. He felt that she may benefit from cubital tunnel decompression and anterior ulnar nerve transposition.

[44] On February 5, 1997, Dr. Yao’s letter to respondent reflected that:

She still has pain in her left elbow. It was not relieved by her 1/22/97 injection. Elbow pain is worse with activity and weather changes. She continues to have back pain which is basically unchanged. Back pain is also worse with activity and even with sitting. The lumbar support is not very beneficial.
Dr. Yao’s impression was left cubital tunnel syndrome and T12 compression fracture. He prescribed Tylenol for pain and Elavil for nerve pain from neuropathy. Dr. Yao discussed cubital tunnel decompression and ulnar nerve anterior subcutaneous transposition as a last resort. He also explained that she would have some residual problems despite surgery because of the significance of her ulnar nerve injury.

[45] On February 26, 1997, Dr. Yao’s letter to respondent reflected:

Her left shoulder and arm are painful constantly. Pain is especially acute at night when she lays down. She has difficulty sleeping especially with her left elbow flexed since this aggravates her symptoms at night. She is unable to use her left arm. She has back pain with weather changes and finds it difficult to walk. Her TENS units helps her back pain. Her left arm symptoms have not improved with Elavil.
Dr. Yao identified her main area of current symptoms as arising from her left cubital syndrome. He fashioned a splint for her elbow at night and recommended the decompression and transposition if her symptoms do not improve.

[46] Dr. Yao wrote a letter to the insurance carrier on March 12, 1997 regarding the nonpayment of a bill because it was for a cubital tunnel injection on January 22, 1997. He explained that the injection was a part of the service but not all and the bill should be paid.

[47] The letter to respondent from Dr. Yao of March 13, 1997 states that the splint helped claimant sleep, but did not help her daytime left arm symptoms. “She work [sic (woke?)] up on two occasions with a burning pain in her anterior left neck base. Her back is still sore. She is using a TENS unit which helps her back pain. She is limping.” His impression remained T12 compression fracture and left ulnar neuropathy at elbow level. Again, Dr. Yao put off surgery, but made a more durable splint, suggested a cane “to off-load her spine” when walking, and a TENS unit for her elbow.

[48] A March 31, 1997, letter to respondent from Dr. Yao, regarding claimant states:

She is overall unchanged. She still has back pain which makes it difficult for her to do housework. She has difficulty sitting or riding in a car. Her back also makes standing and walking difficulty [sic]. Pain is maximal in the lumbar spine area. She has no leg pain or paresthesia. The TENS unit helps decrease her back pain. She still has medial left elbow pain extending up to the shoulder with a hot pain radiating to her left hand. She has paresthesias involving all the fingers of her left hand. She has pain laying on her left side. She is using her left arm splint which gives some relief at night. . . .

Impression: 1. T-12 Compression fracture.

2. Left ulnar neuropathy in elbow.

Recommendations: Ms. Akers may be considered to have reached a point of maximal medical improvement. The AMA “Guides to Evaluation of Permanent Impairment,” Fourth Edition may be used to estimate impairment rating. Table 75, page 113 indicated that her T-12 compression fracture with about 30% decreased anterior vertebral body height correlated with a 3% whole person impairment. Table 16, page 57 indicated her left ulnar nerve injury at left elbow level (EMG 1-13-97 showing left ulnar neuropathy with both demyelination and axonal damage) correlated with a 30% upper extremity impairment (moderate injury). Table 3, page 20 indicates a 30% upper extremity impairment equals a 18% whole person impairment. The combined values chart on page 322 indicated her total whole person impairment (18 + 3) equals a 20% whole person impairment. She has made no significant further improvement and is now 7.5 months following her 8-17-96 work injury. It does not appear that she will be making any significant further improvement. I do not believe she will able [sic] to return to her pre-injury occupation. . . . Discussed left ulnar decompression surgery but suggested she have that done only as last resort. She feels she can live with her left elbow symptoms and would prefer not to have surgery. . . . There is no need for scheduled re-exam. . . .
Dr. Yao’s letter to respondent dated June 9, 1997 reflects that claimant:
Has been having pain extending from her right hip to right shin, which has been worse over the past week. There is no precipitating event. There is slight pain when she is up. She has a burning pain which is worse at night. She still has constant left arm and hand pain. Tylenol PM does not help much with sleep.
Dr. Yao’s impression changed to right sciatica and left ulnar neuropathy at elbow level. He prescribed medications and home exercises.

[49] Dr. Yao’s letter on July 29, 1997 to respondent shows that:

She is having low back pain extending to the right hip down to her right foot. She right foot burns at night. She has difficulty walking. Her left arm is sore. She uses her left elbow extension at night. Daypro and her TENS unit have not given relief.
Dr. Yao’s impressions remained the same. He prescribed a Medrol Dosepak and asked claimant to return in one week if symptoms persisted. Dr. Yao stated that a lumbar epidural injection could be considered and discussed the transposition if she felt the symptoms warrant the surgery.

[50] On August 5, 1997, Dr. Yao sent a letter to respondent stating that the Medrol Dosepak gave claimant no relief, that she still had pain down her right leg and left arm. She was continuing to use a TENS unit. Claimant’s pain level seemed to be worsening in both areas. His impression did not change. Dr. Yao suggested and claimant agreed to a lumbar epidural injection. She inquired if there was anything else to do with her back and Dr. Yao stated that while a myelogram/CT scan could be performed, he did not think anything new would be revealed. If she felt the symptoms were severe enough, he would suggest the decompression/transposition surgery only as a last resort for her left elbow problems.

[51] A report of claimant’s history and physical examination by Dr. Hackbarth at the Center for Pain Management at St. Bernard’s Regional Medical Center on August 27, 1997 reveals essentially the same information previously reported in addition to the following:

She describes her pain as cutting-like in her back, as well as intermittent burning in the right leg and foot. Her pain is constant and has become worse. TENS unit seems to help somewhat. Lying down, sitting, walking, standing cold and rainy weather all seem to increase her pain. Patient describes her pain at present a 10 on a scale of 0-10. She has difficulty sleeping. She sleeps approximately 2-3 hours a night. In the past has had Duact and Medrol which did not help. She also has a TENS unit where she is given some benefit, and has had physical therapy which has not benefited her. Patient denies any injections into her back. She does state that she had a steroid injection to left elbow with limited benefit.
During her examination, no overt pain behavior was observed. She had a good gait and was able to heel and toe walk. Her flexion and extension were decreased and painful bilaterally. She had tenderness along the lower lumbar spinous processes. Her low back pain increased on right straight leg raising at 60 degrees. Her extremities were nontender with a full range of motion, and her paraspinous musculature and SI joints were non tender. Her neurological exam was normal except for a slightly decreased patellar reflex and 4/5 muscle strength in right lower extremity as compared to 5/5 in other three extremities. Dr. Hackbarth’s impression was T12 compression fracture, degenerative changes and right sciatica, and his treatment plan was a series of epidural steroid injections. He stated he would consider facet joint injection.

[52] Pain Management Center procedure notes from August 29, 1997, reflect that claimant received an epidural steroid injection at L4-5 on that date.

[53] A progress note from the Pain Management Center for September 26, 1997 states that claimant’s pain and her exam were the same. Her medication were increased, and she received another injection. Her October 6, 1997 progress note states that her medications were no help, her pain was the same, and her exam was unchanged. The note also reflects that her injection had not helped. She received a lumbar facet joint injections at that time. Her medications were discontinued. She had another facet joint injection and a “NRS Rt L4, L5-S injection” on October 30, 1997. Claimant underwent a bilateral L3-4, L4-5, L5-S facet joint injection on December 15, 1997.

[54] A progress note from January 14, 1998 reflects that her latest medication was no help and thus was discontinued, that her facet joint injections and NRS injections gave no relief and her right hip and right lower back pain had increased. Her exam was unchanged. She was prescribed another medication, and EMG/NCV study was planned.

[55] Dr. Chan at the NEA Clinic performed the EMG/NCV study on January 22, 1998 with the following conclusions: “Normal EMG/NCV of the right lower extremity. There is no electrical evidence for radiculopathy (L5-S1 myotomes tested), plexopathy or peripheral neuropathy.”

[56] Her examination note from the Pain Management Center on February 23, 1998 reflects that her TENS unit helped some, that her right thigh was ~ inch larger in diameter than left thigh, and that new medications were prescribed.

[57] Claimant returned to Dr. Yao on March 16, 1998. His letter of that date to respondent stated that her pain management treatments were unsuccessful and that “her posterior right hip is sore with pain radiating to the right shin and sometimes to the foot. She has no right leg numbness. She still has left arm pain.” His impression was right sciatica and left cubital tunnel syndrome. He prescribed a new medication and reflected that her right leg pain appears sciatic even thought her electrical tests were normal. Her right knee jerk was absent, but otherwise her lower extremities were neurologically intact. He suggested a local injection to the right sciatic nerve area, which claimant said had not been performed. He also commented on decompression/transposition could be done if claimant was willing, which she was not.

[58] On June 18, 1998, Dr. Yao wrote claimant’s attorney a letter describing claimant’s condition:

3. Her whole person impairment is 20%. . . .

4. I believe she is permanently and totally disabled from her pre-injury factory job at ACCO as a result of her 08/17/96 work injury to her back. I was given an insurance form to complete for her. You probably do not have this form. It asks the question “is the patient capable of working at any occupation or job other than their own?” I checked the “yes” box and wrote the comment to “avoid prolonged sitting, standing, walking.” She later told me that her insurance coverage would cease paying her because of the information I listed in the insurance form. I wrote a supplementary letter dated 04/07/98 explaining that “although there are limited activities that she could perform, it would be probably very difficult from a practical standpoint for her to find gainful employment.” “Her employment options would be very limited based upon her activity restrictions.
5. I believe that her back symptoms and present disability is related to her 08/17/96 back injury.

[59] On April 17, 1998, Dr. Yao wrote an open letter stating “On April 7, 1998 Dr. Joseph Yao prescribed a lumbar MRI for Melba Akers for right sciatica. On 4/14/98 our office contacted GAB Robbins for workers comp. authorization for the MRI. Lori, our receptionist, spoke with Korrine at GAB Robbins who denied work comp approval.”

[60] On September 27, 1998 claimant underwent an initial evaluation at Pinnacle Rehabilitation with Melissa Rhoads for vocational rehabilitation. The report reflects claimant’s treatment history. The examiner communicated with Dr. Yao who restated claimant’s restrictions as follows: avoidance of prolonged sitting standing and walking, and that claimant could work for three hours. He did not comment on her lifting or carrying abilities. The report reflects that claimant dropped out of school after starting the eleventh grade, that she has good reading and math skills and that she received on the job training.

[61] The report reflects that claimant was pleasant and cooperative, appeared younger than her stated age, and that she was a poor historian. Her statements regarding her daily activity were as follows: minimal activity increases her pain, that she does do her laundry and dishes but she needs help from her 27 year old son who lives with her, that she has pain in lifting anything greater than a gallon of milk, that she frequently sits around the house and occasionally walks, that she does not engage in a great deal of activity and does not do housework or vacuuming. She was receiving Social Security Retirement. She indicated that she felt “there were likely no jobs which she could perform from a physical standpoint.”

[62] Rhoads’ impressions were that “at this point, Ms. Akers has retired and receives her social security. It would appear that she would not pursue employment based on this issue.” She also felt that because Dr. Yao was not very specific in regards to her abilities, she needed to obtain either a functional capacity evaluation or to obtain a second medical opinion.

[63] Dr. Braden examined claimant on October 5, 1998, for the purpose of a second opinion. After reviewing her medical history, the report reflects that she has low back pain to mid-back pain and left arm pain and weakness in left arm and right leg. Claimant “poorly localizes” her low back pain. “She points from her lumbosacral spine up toward her thoracic spine as the area of pain. She does not localize the area down into her leg and into any distinct dermatomal distribution. The pain is diffusely localized in the right leg.” With regard to her left arm pain, claimant indicated that she had pain from her shoulder to her hand, that her ring and small fingers had the most symptoms of her fingers, that her symptoms are not present all the time and sometimes are worse than others. She has weakness in her arm with gripping, grabbing, pulling and pushing.

[64] His inspection, palpation, neurological exam and sensation exam of her thoracolumbosacral spine were normal. Her lumbosacral spine range of motion was in the 3/4 range for forward flexion, extension to neutral, and right and left side bending are to 1/4 with pain. Her thoracic spine range of motion was to ~ range on left and right rotation with pain. She had “give-way” weakness in quadriceps, knee flexors, hip flexors, ankle dorsiflexors, plantar flexors and flexor hallucis in the right leg compared to the left leg. Otherwise her strength exam was normal.

[65] Dr. Braden’s exam of her left arm was normal in range of motion at shoulder, elbow and wrist. There was no instability in her shoulder. Inspection of the left arm revealed no apparent muscle changes, but a “slight difference in the right first dorsal interosseous compared to the left as far as muscle belly size. “There was also a slight prominence of the lateral aspect of the forearm near the radius. Sensation was normal except for a reported decrease in pinprick sensation in all dermatomes of the left upper extremity from the C5 through the T1 dermatomal distribution. Claimant’s strength was difficult to ascertain due to give-way weakness in all muscles tested from shoulder to fingers. Dr. Braden examination of claimant’s neck showed normal range of motion, response to percussion, and flexion.

[66] Dr. Braden reported the following regarding her “affect/mood/behavior:”

Throughout Ms. Akers’ evaluation, she would reach with her right arm and grab onto her left elbow and hold it as if it were in pain. When she was not holding her right elbow, she would reach her left arm behind her back and grab onto her lumbosacral spine area, claiming pain even without any movement. There was no loss of balance with her gait. She walked with a very slow, shuffling gait into the office and in the examining room and out of the office as well.
Dr. Braden’s conclusions were that another left arm EMG/NCV study be performed, especially in regard to the ulnar nerve, whether there is any slowing through the cubital tunnel and whether there is distinct evidence of continued axonal or nerve damage. He further stated that:
Ms. Akers’ continued complaints of lumbosacral spine pain are not supported by the studies that have been presented in her packet of information or by her objective findings. She has evidence of spinal cord compromise. There is some evidence of non-physiological signs during her evaluation, including give-way weakness and diffuse loss of sensory changes.
I cannot say, within a reasonable degree of medical certainty that she would benefit from a Functional Capacity Evaluation. She may benefit more from neuropsychology or psychology testing. . . . Psychological testing should be instituted first since there appears to be behavioral issues that surround her chronic complaints of pain other than physiological issues, especially with her low back symptomology.
Dr. Braden released claimant to work on October 7, 1998, with the restrictions that she not use her left arm until the completion of the EMG/NCV studies.

[67] On October 19, 1998, claimant underwent EMG/NCV testing again, with the normal conclusions and interpretations, other than “normal motor unit size except left ADM with increase in motor unit size; no morphology changes in muscles as tested except the ADM with large units; no polyphasics seen in ADM.” The final conclusion was that there was “no diagnostic evidence of ulnar nerve entrapment below or above the elbow as tested.”

[68] Melissa Rhoads completed a progress report concerning claimant in which Rhoads made a Transferable Skills Analysis that it is likely that claimant possesses the ability to follow instructions carefully, adjust to doing the same thing over and over, and to pay attention to safety rules when working around machinery. Rhoads’ Labor Market Survey revealed that no jobs were identified at the time of the report that fell within the restrictions placed upon claimant. Rhoads further recommended follow up with Dr. Braden with claimant’s ability to use left arm in light of EMG/NCV study and follow up with Dr. Inman with whom claimant is to have a psychological evaluation.

[69] Dr. Inman saw claimant on November 3, 1998 for a psychological evaluation. He reviewed her medical and personal history and performed the Minnesota Multiphasic Personality Inventory-2. His reported the results as follows:

Mrs. Akers produced a valid MMPI-2 profile. . . . Her MMPI clinical profile presents a mixed pattern of symptoms in which somatic reactivity under stress represents her primary difficulty. She presents a picture of physical problems and reduced level of psychological functioning. She is likely to have a hysteroid adjustment to life and may experience periods of exacerbated symptom development under stress. Some individuals with this profile develop a pattern of “invalidism” in which they become incapacitated and dependent upon others. Their physical symptoms may be vague, may have appeared suddenly after a period of stress, and may not be traceable to actual organic changes. She may be manifesting fatigue, vague pain, weakness or unexplained dizziness.

[70] Dr. Inman reported his impressions as follows:

Utilizing the new personal injury, neurologic, profile now available for the MMPI-2, further interpretation indicates that her profile was valid and clearly interpretable. Her profile indicates that some problems are evident in her profile and that her pattern indicates an interest in portraying herself as being physically disabled. She reported extensive vague physical problems that are unlikely to be the result of a specific physical disorder. This is most likely to result from a long term, chronic pattern of somatization that stems from basic ingrained personality problems. She reports being unable to function effectively when she feels life conflicts. Individuals with this clinical pattern tend to be uninsightful when it comes to understanding the cause of their symptoms, in part because they prefer to rely on medical explanations for their symptoms. Individuals with this pattern often obtain substantial secondary gain from their symptoms.
Individuals with this clinical profile, and medical findings . . . would receive a clinical diagnosis of conversion disorder. They typically also receive an Axis II diagnosis of dependent personality disorder.

[71] Melissa Rhoads made a second progress report on November 23, 1998 stating that Dr. Braden removed claimant’s left arm restrictions in light of the second EMG/NCV study and that he prescribed a functional capacity evaluation. Rhoads reviewed her treatment history since the last report. She reflected that claimant reported for her functional capacity evaluation to Shane Keeting, a therapist, but was unable to participate because her blood pressure was too high. Mr. Keeting indicated that claimant had not been using her blood pressure medication. Dr. Braden indicated that once claimant’s family doctor had her blood pressure under control, she should report for the evaluation. Rhoads identified a series of positions in the labor market that would be appropriate under Dr. Braden’s evaluation, but with the exception of the inserter position, would not satisfy Dr. Yao’s restrictions.

[72] Rhoads performed a labor market survey in the Jonesboro and Blytheville area with the following results:

1. Inserter — inserting sales flyers into newspaper at a high table with stool available;
2. Dry cleaners counter helper — greeting customers, operating cash register, tagging orders, locating outgoing order and giving completed orders to customers;

3. Cashier/checker.

[73] Rhoads recommended further communication with physicians regarding the appropriateness of the positions, further surveying for different positions, communication with claimant regarding her desire for job placement, pursuit of functional capacity evaluation and review of job functions in light of FCE results.

[74] On December 2, 1998 claimant completed a functional capacity evaluation with Shane Keeting, a therapist at the Healthsouth Rehabilitation Center of Jonesboro. Keeting wrote a letter to Dr. Braden reporting the results of the test:

Of the 43 validity criteria scored, Ms. Akers scored 22 in the valid category and 21 in the invalid category for a composite score of 51%. Since Ms. Akers did score 51% on the functional capacity evaluation, the recommendation can be made that the test were performed with submaximal effort. Therefore, this places the functional capacity evaluation in the invalid effort category. In order for a functional capacity evaluation to be valid a score of 75% or better must be obtained. Because this evaluation has been deemed invalid, further recommendations cannot be made regarding Ms. Akers’ functional ability.
There were some inconsistencies noted during the functional capacity evaluation. For example, 21 of the 43 validity criteria scored, the co-efficient of variance was high for these activities.
In Melissa Rhoads’ third progress report, dated December 17, 1998, she identified another position available, that of cafeteria line server, the duties of which were greet customers, discussing menu options and serving requested food. While claimant functional capacity evaluation was considered invalid, she did demonstrate abilities in the sedentary to light categories of physical demand.

[75] Rhoads’ Closure Report, dated January 20, 1999, reflected that Dr. Yao, after reviewing the job descriptions, noted that the inserter job was physically appropriate and that she could not perform the duties of the other jobs. Dr. Braden felt that all the jobs were appropriate for claimant and that she could perform them. When Rhoads spoke with claimant about vocational services and the available positions, claimant “indicated that she felt she could not physically return to work and that the salary offered by the part-time inserter job would not financially support her. Ms. Akers indicated that due to the above stated information, and her receipt of Social Security Retirement, she did not want to participate in placement services.” Later, Rhoads wrote that “communication with Ms. Akers revealed that she did not feel that she could physically return to work at this time and as a result did not desire further vocational services.

[76] On December 21, 1998, Dr. Yao reviewed a job description for the dry cleaners counter helper and made the following remark: “the standing/walking would probably make it difficult for her to perform this job.” His comment regarding the inserter position was that “she would need a chair to alternate sitting and standing.” His comment regarding the cafeteria line server was that “the standing required at this job would probably make this job difficult for her to perform.”

[77] On January 14, 1999, Dr. Braden signed his approval of each of the jobs as appropriate for claimant, counter helper, inserter and line server.

[78] The wage loss factor is the extent to which a compensable injury has affected the claimant’s ability to earn a livelihood. The Commission is charged with the duty of determining disability.Cross v. Crawford County Memorial Hosp., 54 Ark. App. 130, 923 S.W.2d 886 (1996). 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 her 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 of Fayetteville v.Guess, 10 Ark. App. 313, 663 S.W.2d 946 (1984); Curry v. FranklinElectric, 32 Ark. App. 168, 798 S.W.2d 130 (1990). 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 of Fayetteville, supra; Oller v.Champion Parts Rebuilders, 5 Ark. App. 307, 635 S.W.2d 276 (1982). A claimant’s lack of interest in pursuing employment with her employer and negative attitude in looking for work are impediments to our full assessment of wage loss.

[79] 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, she is entitled to compensation for permanent and total disability. Minor v. Poinsett Lumber Manufacturing Co., 235 Ark. 195, 357 S.W.2d 504 (1962).

[80] In this case, our assessment of the loss of earning capacity is impeded by her psychological condition which prevents the claimant from attempting to return to work. Her treating physician, Dr. Yao, was not aware of the findings of the psychological evaluation or the functional capacity evaluation or the second nerve study, and he considered claimant to be severely restricted. However, Dr. Braden, who performed a review of her treatment history and a physical examination, and then after ordering the second nerve study, the psychological evaluation and the functional capacity evaluation, reviewed the results of each and determined that claimant could indeed return to work at the positions identified by the vocational specialist, Rhoads, and presumably other similar positions. We find that the opinion of Dr. Braden in this matter is more persuasive because he enjoyed the benefit of all of claimant’s medical records and test results as opposed to Dr. Yao who was not afforded the opportunity to supplement his information on claimant regarding the highly relevant studies conducted after Dr. Braden’s examination to revise, if necessary, his opinion to take into account all that relevant information.

[81] Claimant and respondent spent a lot of time in their appeal briefs discussing the testimony of claimant and her friend and daughter. In light of the report of the psychologist, we see no need in defending or attacking the credibility of claimant’s friends and family. Certainly it is consistent with claimant’s psychological condition that she would portray herself to family and friends as disabled, in pain and in need of attention and assistance. The secondary gain noted by the psychologist, and the respondent and claimant, would be obtained not only financially through her retirement benefits and her workers’ compensation benefits, but also through the care and attention apparently lavished on claimant by her family and friends. While claimant’s witnesses certainly have a bias in favor of claimant’s success in this matter, there is no reason to assume that claimant has not behaved in the manner described by them. It is the reason for this behavior that is at issue.

[82] For the same reason, we repeat that we credit Dr. Braden over Dr. Yao in terms of claimant’s limitations and abilities. Dr. Yao made his diagnoses based more upon claimant’s complaints (subjective) than on any available objective test, and without the benefit of three objective and revealing examinations. It is true that Dr. Braden also reviewed claimant’s complaints, directly from her and as stated in her records, but he also had the benefit of those other tests. There is no reason to assume anything about Dr. Yao’s opinion other than that he did not have all the information available when asked to make his opinion and was not made aware that such information existed. Without Dr. Yao’s knowledge of claimant’s psychological condition to explain her continued pain and the reinforcing reports from the functional capacity evaluation and nerve study, Dr. Braden’s diagnoses are worthy of more credit than Dr. Yao’s. With that information, the value of Dr. Yao’s opinion is necessarily limited.

[83] Claimant’s psychological condition has not been demonstrated to be work-related, but was characterized as a product of deeply ingrained personality traits. Her work-related injury has not limited her ability to return to work beyond the disability rating of 15% awarded after reviewing her impairment rating and other appropriate factors, discussed later. This non-work-related psychological condition has prevented her return by creating somatic pain, interest in not returning and in receiving the financial and personal benefits of “invalidism,” and a desire to remain off work and retired. Claimant has not proved by a preponderance of the evidence that her work-related injury has prevented her return to the work force and thus we find that she is not permanently and totally disabled.

[84] After considering claimant’s work history, education, age, motivation to return to work, submaximal effort on the functional capacity evaluation, and all other relevant factors, we find that the claimant has sustained a 15% wage loss caused by her T-12 compression fracture. We recognize that Dr. Yao found claimant to be permanently and totally disabled. We disagree with this evaluation of her disability. The reason for this is that the compression fracture was demonstrated objectively and is directly related to her fall at work, however, the reasons for her “inability” to return to work were objectively demonstrated by the psychological evaluation to be related to a non-work-related psychological condition and not her compensable fall, a fact unknown to Dr. Yao. This 15% rating includes the 5% already accepted by Respondent.

[85] As to the issue of controversion of the 5% wage loss, almost two years passed between Dr. Yao’s impairment rating and respondent’s acceptance of the 5% wage loss rating. This occurred in January 1999, after all of the activity in the medical records in the hearing record was complete. Nothing that occurred after Dr. Yao’s impairment rating seemed to affect the validity of that rating, although the appropriateness of claimant’s entitlement to permanent and total disability was disproven during that time. We cannot say that this 5% was not controverted because we cannot find that the delay in allowing it was necessary or that the subsequent investigation into Claimant`s condition after Dr. Yao’s impairment rating really had anything to do with that rating as opposed to her ability to work at all. Thus we find that respondent did controvert claimant’s claim in its entirety, and affirm the Administrative Law Judge’s opinion on this issue.

[86] After a de novo review of the entire record we find that claimant is not entitled to permanent and total disability benefits under the Arkansas Workers’ Compensation Act because she failed to prove by a preponderance of the evidence that she is permanently and totally disabled; that Claimant proved but a preponderance of the evidence that she is entitled to wage loss disability in the amount of 15%; and that respondent did controvert this claim in its entirety, and therefore we enter this opinion affirming the decision of the Administrative Law Judge.

[87] 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 (Repl. 1996).


[89] _______________________________ ELDON F. COFFMAN, Chairman

[90] _______________________________ MIKE WILSON, Commissioner

[91] Commissioner Humphrey concurs.