CLAIM NO. E906040
Before the Arkansas Workers’ Compensation Commission
OPINION FILED JULY 31, 2002
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by HONORABLE SHEPHEN SHARUM, Attorney at Law, Fort Smith, Arkansas.
Respondents represented by HONORABLE DOUGLAS CARSON, Attorney at Law, Fort Smith, Arkansas.
Decision of the Administrative Law Judge: Affirmed as modified.
OPINION AND ORDER
Both parties have filed a timely appeal to an opinion and order filed by the Administrative Law Judge on September 6, 2001. In that opinion and order, the Administrative Law Judge found in relevant part that the claimant was temporarily totally disabled from December 20, 2000 to February 23, 2001, and that the preponderance of the evidence fails to establish that the claimant is permanently and totally disabled, but that the claimant has experienced a 20% impairment to his wage-earning capacity in addition to his 27% whole body permanent impairment rating accepted and paid by the respondents.
After conducting a de novo review of the entire record, we find that the preponderance of the evidence establishes that the claimant was temporarily totally disabled from December 20, 2000 to February 23, 2001, that the claimant is not permanently and totally disabled, but that the claimant has experienced a 35% impairment to his wage-earning capacity in excess of the 27% whole body permanent impairment rating accepted and paid by the respondents. Therefore, we find that the decision of the Administrative Law Judge must be affirmed as modified.
The claimant was employed by the respondent to install fire protection systems. The claimant sustained an admittedly compensable back injury on March 1, 1999, when he and a supervisor were carrying a heavy toolbox. Diagnostic testing confirmed an L5-S1 herniated disc with an extruded fragment for which Dr. Jim Moore performed a right partial decompressive hemilaminectomy and diskectomy on September 9, 1999.
The claimant’s symptoms did not resolve, and additional diagnostic testing revealed compression on the right side at the L5-S1 level for which Dr. Moore performed a second surgery on June 5, 2000. The claimant’s symptoms still persisted and Dr. Moore has discussed the possibility of additional diagnostic testing and a possible third surgery. However, because the claimant indicated that he would not consider surgery, additional testing was cancelled and Dr. Moore found that the claimant reached maximum medical improvement.
The claimant receives a union disability pension and Social Security disability benefits. With regard to his workers’ compensation claim, Dr. Moore has assigned the claimant a 27% permanent anatomical impairment rating to the whole body, and Dr. Moore has also indicated that the claimant reached maximum medical improvement on February 23, 2001.
1. Temporary Total Disability Compensation
Temporary disability is determined by the extent to which a compensable injury has affected the claimant’s ability to earn a livelihood. An injured employee is entitled to temporary total disability compensation during the period of time that she is within her healing period and totally incapacitated to earn wages. Arkansas State HighwayTransportation Dept. V. Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981). An injured employee is entitled to temporary partial disability compensation during the period that she is within her healing period and suffers only a decrease in her capacity to earn the wages that she was receiving at the time of the injury. Id. The “healing period” is defined as the period necessary for the healing of an injury resulting from an accident. Ark. Code Ann. § 11-9-102(12) (Repl. 2002). The healing period continues until the employee is as far restored as the permanent character of her injury will permit. When the underlying condition causing the disability becomes stable and when nothing further will improve that condition, the healing period has ended, and the claimant is no longer entitled to receive temporary total disability compensation or temporary partial disability compensation, regardless of her physical capabilities. Moreover, the persistence of pain is not sufficient in itself to extend the healing period or to find that the claimant is totally incapacitated from earning wages. Mad Butcher, Inc. v. Parker, 4 Ark. App. 124, 628 S.W.2d 582 (1982).
In the present case, the respondents argue on appeal that the claimant’s temporary disability ended on December 21, 2000, and that the Administrative Law Judge mistakenly awarded temporary disability benefits until February 23, 2001. The respondents’ “mistake” theory is based on the fact that Dr. Moore assigned the claimant a 27% permanent impairment rating on December 21, 2000. The respondents essentially argue that, by definition, the claimant’s period of temporary disability must end at the point a physician assigns a permanent percentage of impairment.
We note that the respondents’ point would be well taken if the only evidence in the record as to when the claimant reached maximum medical improvement (i.e., the end of his healing period) was Dr. Moore’s December 21, 2000 notes regarding permanent anatomical impairment. However, in the present case, Dr. Moore later specifically identified February 23, 2001 as the date this patient reached maximum medical improvement. Dr. Moore did assess permanent impairment on December 21, 2000 following a functional capacity evaluation. However, Dr. Moore then recommended additional diagnostic studies. Some additional testing was performed. Only after the claimant decided to cancel a scheduled myelogram on February 26, 2001 because he was unwilling to undergo a possible third surgery did Dr. Moore find that maximum medical improvement was reached. Under these circumstances, we accord greater weight, as did the Administrative Law Judge, to Dr. Moore’s later and more specific report as to when the claimant reached maximum medical improvement. Consequently, since the greater weight of the evidence establishes that the claimant reached maximum medical improvement on February 23, 2001, we detect no mistake or error in the Administrative Law Judge’s finding and affirm.
2. Wage Loss
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
(Repl. 2002). Permanent disability compensation is paid where the permanent effects of a work-related injury incapacitate the worker from earning the wages which he was receiving at the time of the injury. When making a determination of the degree of permanent disability sustained by an injured worker with an unscheduled injury, the Commission must consider medical evidence demonstrating the degree to which the worker’s anatomical disabilities impair his earning capacity, as well as other factors such as the worker’s age, education, work experience, and other matters which may reasonably be expected to affect the workers’ future earning capacity. Such other matters are motivation, post-injury income, credibility, and demeanor. Glass v. Edens, 233 Ark. 786, 346 S.W.2d 685
(1961); City of Fayetteville v. Guess, 10 Ark. App. 313, 663 S.W.2d 946
(1984). Curry v. Franklin Electric, 32 Ark. App. 168, 798 S.W.2d 130
(1990). When it becomes evident that the worker’s underlying condition has become stable and that no further treatment will improve the condition, the disability is deemed to be permanent. If the employee is totally incapacitated from earning a livelihood at that time, he is entitled to compensation for permanent and total disability. Minor v.Poinsett Lumber Manufacturing Co., 235 Ark. 195, 357 S.W.2d 504
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 the present case, the respondents assert that the claimant unreasonably failed to cooperate with their efforts at his rehabilitation, so that the claimant is barred from any award of permanent disability benefits in excess of his anatomical impairment rating.
In this regard, Ark. Code Ann. § 11-9-505(b)(3) provides:
The employee shall not be required to enter any program of vocational rehabilitation against his or her consent; however, no employee who waives rehabilitation or refuses to participate in or cooperate for reasonable cause with either an offered program of rehabilitation or job placement assistance shall be entitled to permanent partial disability benefits in excess of the percentage of permanent physical impairment established by objective physical findings.
As the respondents’ brief indicates in great detail, the respondents’ theory that the claimant failed to cooperate with efforts at his rehabilitation appears to be based to a large extent on the claimant’s lack of response to a “deadline” imposed by the respondents’ vocational rehabilitation consultant, Gay Signoff, concerning a decision to further pursue rehabilitation and/or job placement.
We are not persuaded from this evidence that the claimant refused to participate in, or cooperate with, rehabilitation efforts without reasonable cause. We point out that the record actually reflects that the claimant did participate in a vocational rehabilitation assessment provided by the respondents’ hand-selected provider. As noted above, the claimant has been approved for Social Security and has received disability benefits from a union contract. The claimant elected to continue to receive these additional benefits rather than try to return to work at a sedentary job for reduced wages. We find that the claimant’s lack of response to Ms. Signoff’s “deadline” communications, apparently prepared during a period in anticipation of litigation, does not arise to an unreasonable lack of cooperation with rehabilitation or job placement, as the respondents suggest on appeal.
With regard to the claimant’s alleged permanent and total disability, the respondents assert that the claimant has actually experienced no
decrease in his wage-earning capacity attributable to his admittedly compensable back injury, two surgeries and the acknowledged 27% impairment caused by the injury. In this regard, the respondents note a November 1, 2000 electrodiagnostic examination interpreted as normal with respect to nerve root irritation. In addition, Dr. Moore approved a functional capacity evaluation performed on November 9, 2000 which indicated that the claimant could return to full-time work in the light-work category. In addition, the respondents note that the claimant has revealed a negative attitude about returning to work in light of his Social Security benefits and disability pension and his lack of communication with regard to Ms. Signoff’s “deadline” for rehabilitation/job placement. In addition, to the extent that the claimant testified that Dr. Moore allegedly told him repeatedly that he suffered from a “failed back syndrome, the respondents note that Dr. Moore’s sole recorded reference on that subject states only that it is “conceivable” this patient will fall in the 20% failed category.
Clearly, the results of the functional capacity evaluation sanctioned by Dr. Moore do not support the claimant’s contention that he is permanently and totally disabled. We also note the claimant’s relatively young age (40) and his educational equivalent of a high school education by GED.
However, as the claimant points out, he was earning a wage rate of $20.50 per hour, or approximately $38,000 to $46,000 per year, at the time of his injury. There appears to be no dispute that the claimant required special training skills and schooling to install fire systems, and the claimant cannot return to that physical work with his present physical impairment and pain restrictions. The claimant has worked in this particular field essentially his entire adult life and has limited transferable skills with few light work possibilities, including computer assisted drafting, vocational technical training, manufacturer’s representative, and sales. After considering the claimant’s age, education, work experience, the nature and extent of his compensable injury, and all other relevant factors, we find that the claimant sustained a 35% impairment to his wage-earning capacity in excess of the 27% whole body impairment assigned by Dr. Moore.
Therefore, after conducting a de novo review of the entire record, we find that the claimant is entitled to temporary total disability benefits through February 23, 2001, and we find that the claimant sustained a 35% impairment to his wage-earning capacity in excess of his 27% whole body impairment rating accepted and paid by the respondents. Therefore, the decision of the Administrative Law Judge is affirmed as modified.
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 in part on this appeal before the Full Commission, the 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
IT IS SO ORDERED.
_________________________________ DAVID GREENBAUM, Special Chairman
Commissioner Turner concurs in part and dissents in part.
CONCURRING AND DISSENTING OPINION
SHELBY W. TURNER, Commissioner
I concur with the findings in the principal opinion that claimant is entitled to additional benefits for temporary total disability from December 21, 2000 to February 23, 2001 and to benefits for a loss in wage-earning capacity in an amount equal to at least 35% to the body as a whole. However, I must respectfully dissent from the finding that claimant failed to prove that the compensable injury has rendered him permanently and totally disabled.
Claimant contends that the compensable injury has rendered him permanently and totally disabled from earning “any meaningful wages in the same or other employment.” Ark. Code Ann. § 11-9-519(e)(1) (Repl. 2002). Respondent counters that claimant waived or failed to cooperate with vocational rehabilitation efforts provided by respondent and is, therefore, precluded from receiving any benefits for his wage-loss disability. See Ark. Code Ann. § 11-9-505(b)(3) (Repl. 2002).
I initially note that claimant is a very motivated individual whose testimony concerning his disability is highly credible. Claimant testified that Dr. Moore indicated to him on numerous occasions that he was suffering from failed back syndrome. While respondent questions this assessment, referring to Dr. Moore’s October 3, 2000 report wherein he used the word “conceivable,” I would point out that there is no evidence in the record that Dr. Moore opined that this diagnosis was not valid. There is certainly insufficient evidence to contradict claimant’s testimony concerning Dr. Moore’s numerous comments about this diagnosis.
It should be remembered that claimant’s entire employment history consists of jobs performing heavy manual labor, although I recognize that his training and experience might be considered skilled employment. However, even Dr. Moore did not opine, and respondent does not allege, that claimant can return to his previous employment. Concerning the Functional Capacity Evaluation, claimant passed all validity criteria and gave the best effort he could possibly put forth. This admirable effort aggravated or significantly increased his symptoms, resulting in a considerable worsening of his disability for several days thereafter. Claimant has never contended that he did not have good days during which he might be able to engage in various physical activities. However, the greater weight of the evidence indicates that claimant will never be able to perform gainful employment on any regular or consistent basis and, thus, earn “meaningful wages.” There are simply no jobs available that would allow claimant to work one or two days and then be off work as a result of his increased disability until he recovers sufficiently to return to work. I believe this is the essence of his entitlement to benefits for permanent and total disability. His daily activities are so limited that there are no meaningful jobs in the market that would allow him to be gainfully employed. As a result of this situation, vocational rehabilitation efforts are essentially futile. Further, Dr. Moore expressed skepticism in February 2001 that “pursuing any sort of rehabilitative efforts is going to be of much value.”
It is interesting to note that after Gay Signoff, who was hired by respondent, heard Dr. Moore question the value of any continuing rehabilitative efforts, she sent a letter dated two days later to Dr. Moore informing him that claimant would refuse a third surgery, regardless of the results revealed by a myelogram. She asked Dr. Moore if she should continue to help claimant explore his return to work options, to which Dr. Moore understandably would not, in good conscience, order stopped. Thereafter, Signoff began her typical efforts to document an uncooperative and unmotivated client in anticipation of the litigationshe already knew was rapidly proceeding to a hearing before theAdministrative Law Judge. For example, respondent seems to place great significance on Signoff’s unsurprising testimony that claimant would not even look at the web site on union employment opportunities. However, claimant actually testified in the following manner:
Q. Did you take a look at the union web site?
A. Yes. My daughter brought it up. Well, she printed out some pages from the local library and brought them to me.
Claimant does not believe he failed to cooperate with Signoff and, in any event, the greater weight of the evidence indicates that any additional efforts at providing rehabilitative services would have been futile.
Accordingly, based on my consideration of the appropriate wage-loss disability factors, I find that claimant has proven by a preponderance of the evidence that the compensable injury has rendered him permanently and totally disabled. Claimant has certainly proven entitlement to an award of at least 35% to the body as a whole. Accordingly, I am constrained to concur with the award set forth in the principal opinion.
Finally, I concur with the award of benefits for temporary total disability. Respondent argues that since Dr. Moore rated claimant’s permanent anatomical impairment in December 2000, claimant’s healing period necessarily ended at that time. However, without citing numerous cases on this subject, I will simply say that the rating of a claimant’s permanent anatomical impairment is not determinative on the question of when the healing period has ended. Claimant’s healing period obviously extended beyond December 2000 because Dr. Moore was recommending additional diagnostic studies with the idea that another surgical procedure could very well be indicated. When Signoff informed Dr. Moore on February 23 that claimant was declining further diagnostic tests, as well as the possibility of a third surgery on his back at that time, Dr. Moore appropriately indicated that claimant’s healing period would end on such notification.
For the foregoing reasons, I concur in part and respectfully dissent in part.
_______________________________ SHELBY W. TURNER, Commissioner
Commissioner Yates concurs in part and dissents in part.
CONCURRING AND DISSENTING OPINION
JOE E. YATES, Commissioner
I respectfully concur in part and dissent in part from the majority opinion. Specifically, I concur in the principal’s finding that the claimant is not permanently and totally disabled. However, I must dissent from the principal’s award of 35% in loss of wage earning capacity. In my opinion, the claimant has failed to prove by a preponderance of the evidence that he is entitled to any wage loss disability benefits. I also must dissent from the finding that the claimant has proven by a preponderance of the evidence that he is entitled to additional temporary total disability benefits from December 20, 2000, to February 23, 2001.
My de novo review of the evidence indicates that the claimant has failed to prove by a preponderance of the evidence that he is entitled to any wage loss disability benefits, much less the increase to 35% the principal opinion has awarded claimant. With respect to the claimant’s ability to work, the testimony of Ms. Signoff is particularly enlightening. Ms. Signoff met with the claimant to determine his return-to-work potential on October 13, 2000. The claimant advised her that he was represented by an attorney and the meeting was cut short. On November 14, 2000, Ms. Signoff wrote the claimant’s attorney and provided him with a copy of the FCE results and Dr. Moore’s November 1 report recommending that the claimant have vocational assistance. The letter also noted that the October meeting with the claimant had been cut short and she requested that the claimant’s attorney advise as to whether she had his permission to work with the claimant to assist him in returning to the work force. Ms. Signoff testified that she received no reply to that letter.
After two weeks passed with no response, Ms. Signoff again wrote claimant’s attorney on November 30, 2000. This letter is essentially the same as the November 14 letter, in that, it requests permission to assist the claimant in returning to the work force.
Ms. Signoff confirmed that when she first met with the claimant in October, 2000, he had told her that “he would like to remain with the union in some capacity.” Accordingly, Ms. Signoff reviewed a union jobs Internet website, advised the claimant of that website, and suggested that he might want to review those jobs to see if there was anything listed which would be of interest to him. Later, when she was with the claimant at Dr. Moore’s office, she asked the claimant directly whether he had reviewed the website. His answer speaks volumes in reviewing his attitude toward returning to work: “His reply was that his daughter had pulled up the site [on their computer for viewing], but he didn’t feel like looking at it.” This conversation occurred on the second visit with Dr. Moore in which Ms. Signoff accompanied the claimant. At this same visit, Dr. Moore told the claimant and Ms. Signoff that he could not find any reason for the claimant’s complaints of disabling pain.
Dr. Moore recommended that the claimant undergo another myelogram or CT. A myelogram was scheduled, but it was cancelled at the claimant’s own instance. The claimant testified that he did so because he already had decided that he would not undergo a third surgery, no matter what the myelogram showed.
After this myelogram was canceled, Ms. Signoff contacted the claimant again and asked whether he wanted to continue with vocational rehabilitation services or if he wanted some other assistance in getting back into the work force. The claimant’s reply was, “I don’t know. I need to think about it.” It was agreed that he and Ms. Signoff would speak again on March 2, 2001.
On February 23, Ms. Signoff wrote the claimant to confirm their conversation and the deadline for making a decision as to his future rehabilitation or vocational assistance. She did not hear from him, so Ms. Signoff called the claimant’s home. Ms. Signoff gave the following testimony about that phone call:
A. When I called, I said “Richard?” and he said, “Yes” and I said, “This is Gay Signoff with Cascade Disability Management. I needed to know what kind of decision you had made about voc rehab.”
Q. What happened next?
A. He said, “I’m sorry, I can’t hear you.” And so I repeated, and he said, “I still can’t hear you” and I repeated and the line went dead.
Q. When he first answered the phone and you said — I believe you said, “Richard” —
A. I did.
Q. — he responded how?
Q. And was there any indication that he couldn’t hear you well at that point?
Q. After the line went dead when he did say that he could not hear you, what did you do?
A. I hit redial, thinking maybe another connection might be clearer.
Q. Okay, what happened then?
A. There was no answer.
Q. How long was it from the time the line went dead until the time that you placed the second call?
A. Less than 30 seconds probably.
Ms. Signoff waited a few minutes and tried to call the claimant again, but received no answer. The claimant did not return her call.
Ms. Signoff again tried to talk with the claimant about vocational rehabilitation or other efforts to return him to work three days later, on Monday, March 5, 2002. She called his home at 10 a.m. and left a message on his answering machine asking him to call her. She called later that day and received no answer. She did not receive a call back from the claimant after leaving the message on his answering machine. Accordingly, she wrote him a letter on that day, to his home address, “reminding him that we were making vocational rehab services available and that . . . he and I had agreed that he would make a decision regarding it and that I would like to have his decision.”
As she testified, quoting the letter as indicated:
“Since our deadline is coming up and you have not responded to my calls, I am assuming that you are declining vocational rehabilitation services. If this is not correct, contact me immediately. Call me collect,” and I gave him my phone number. “If I have not heard from you by March 7, 2002, I will proceed to document the lack of interest on your part in returning to the work force.”
Neither the claimant nor anybody on his behalf contacted Ms. Signoff after she sent that letter to his home.
That letter was dated March 5. The next day, March 6, Ms. Signoff “called again, trying to be fair with him.” According to Ms. Signoff, she called the claimant’s home at 10:30 in the morning and his wife answered. Ms. Signoff was told the claimant was not available to come to the phone and Ms. Signoff left a call-back message. The claimant did not return the call.
Based on all of the information about the claimant from her personal experience in dealing with him, the information she learned through medical reports, conversations with his physician, and the functional capacity evaluation, Ms. Signoff testified that “there certainly is within the work force” jobs that the claimant could do. These include a manufacturer’s representative for tools or supplies such as he used in his job. He also could be trained to do computer-assisted drafting, “and with training I believe he could be good at that.” To do this job, one does not have to be an expert in computers or in computer program design; rather, it is simply running the program that someone else has produced. This is a job that is available in a lot of industries in Arkansas. Also, considering the limitations placed on him as a result of the functional capacity evaluation, the claimant is a candidate for retraining or re-education. Concerning this point, Ms. Signoff specifically testified:
I believe that the physical abilities that the functional capacity [evaluation] showed would allow a classroom setting and an education. I don’t see anything in there that would prevent him from walking across campus, carrying books, doing the things that a student does. He was a journeyman pipefitter. That required a lot of years of learning his skill and it’s a very skilled trade. He had to learn through his apprenticeship through study and through hands-on. If he could do that, I think he could do college-level work at the level that we are proposing that he might want to look at.
Furthermore, there would be jobs available with a union, including training, organizing, and safety, that he could perform consistent with his restrictions.
Therefore, after conducting a de novo review of the record, I find that the claimant has not even attempted to undergo any type of training or schooling and his attitude about returning to work is non-existent. The claimant is currently receiving social security disability benefits and a disability pension from the union. The claimant admitted that if he returned to work, he would have to give up his pension and his social security benefits. The claimant has a strong financial motive for not wanting to seek re-employment. Further, the claimant had a valid FCE when he took the test and it indicated that he was able to do light-duty work. The claimant is very intelligent, capable of reading and understanding, and capable of analyzing information. Further, Dr. Moore commented that he really didn’t see anything that was causing the claimant’s persistent problems. In addition, there was no explanation or excuse ever offered by the claimant to Ms. Signoff for his continued refusal to cooperate with her. The claimant also would not even look at a union Internet website concerning possible jobs that he could perform within his anatomical restrictions. Therefore, after I consider all of this evidence, together with the claimant’s testimony, it is my opinion that the claimant has no motivation whatsoever to return to work. Accordingly, I find that the claimant is not entitled to any wage loss disability benefits over and above his 27% permanent impairment rating.
The principal opinion also awarded the claimant temporary total disability benefits for the period December 21, 2000, through February 23, 2001. My review of the evidence indicates that the claimant is not entitled to receive any temporary total disability benefits after December 20, 2000.
The evidence indicates that Dr. Moore assessed the claimant with permanent impairment rating on December 21, 2000. The respondents accepted the 27% permanent physical impairment rating that Dr. Moore assessed on December 21, 2000, after he was asked by the claimant’s attorney for “your permanent physical impairment rating so that we can plan on how to deal with the current status of his claim.”
Unfortunately, Ms. Signoff wrote a letter to Dr. Moore asking him to respond to some questions. Dr. Moore responded to the letter by answering the questions in his own handwriting on the day he received the letter. The letter indicated that he received the letter on February 23, 2001, and he noted that date as the date the claimant reached maximum medical improvement. However, the medical records indicate that the claimant was assessed his permanent impairment rating on December 21, 2000. Therefore, I respectfully dissent from the majority opinion awarding temporary total disability benefits after December 21, 2000.
In summary, I concur in the finding of the principal’s opinion that the claimant has failed to prove by a preponderance of the evidence that he is permanently and totally disabled. However, I must dissent from the award of 35% in loss of wage-earning capacity and temporary total disability from December 21, 2000, through February 23, 2001.
_______________________________ JOE E. YATES, Commissioner