CLAIM NO. E805387
Before the Arkansas Workers’ Compensation Commission
ORDER FILED FEBRUARY 13, 2001
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by HONORABLE H. OSCAR HIRBY, Attorney at Law, Little Rock, Arkansas.
Respondent No. 1 represented by HONORABLE WALTER A. MURRAY, Attorney at Law, Little Rock, Arkansas.
Respondent No. 2 represented by HONORABLE DAVID L. PAKE, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed in part and reversed in part.
OPINION AND ORDER
The claimant appeals those portions of the Administrative Law Judge’s Opinion and Order filed on May 24, 2000 finding that the claimant has failed to demonstrate by a preponderance of the evidence that the respondent has controverted the claimant’s 14% permanent anatomical impairment rating and finding that the claimant is not entitled to any wage-loss disability in excess of his 14% permanent anatomical impairment rating which has been accepted by the respondent. After conducting a de novo review of the entire record, we find that the claimant has failed to demonstrate by a preponderance of the evidence that the respondent has controverted the claimant’s 14% permanent anatomical impairment rating. Therefore, we find that the Administrative Law Judge’s decision in this regard must be affirmed. However, we also find that the claimant has sustained a 14% impairment to his wage-earning capacity in excess of the 14% permanent anatomical impairment accepted and paid by the respondents. Therefore, we find that the Administrative Law Judge’s decision in this regard must be reversed.
I. CONTROVERSION
Controversion is a question of fact to be determined from the circumstances of each particular case. New Hampshire Ins. Co. v.Logan, 13 Ark. App. 116, 680 S.W.2d 720 (1984). The mere failure to pay compensation benefits, in itself, does not necessarily amount to controversion. Revere Copper Brass, Inc. v. Talley, 7 Ark. App. 234, 647 S.W.2d 477 (1983). However, assuming a position which requires an injured employee to retain an attorney so that the employee’s rights are protected may constitute controversion. Turner v. Tradewinds Inn, 267 Ark. 861, 592 S.W.2d 454 (1980).
In the present case, claimant was questioned at the hearing about an interruption in benefits and recalled that there was some interruption but could not state when his benefits were interrupted or when they were reinstated. Moreover, the claimant has failed to demonstrate by a preponderance of the evidence that respondents paid the 14% permanent anatomical impairment rating in an untimely manner or that the respondents took a position which required the claimant to retain an attorney so that the claimant’s rights could be protected. Consequently, we affirm the Administrative Law Judge’s finding that the claimant has failed to establish by a preponderance of the evidence that the respondents have controverted payment of the claimant’s 14% anatomical impairment rating. We note, however, that the respondents have clearly controverted payment of the 14% wage-loss disability awarded herein, and we find that the claimant’s attorney is entitled to the maximum attorney’s fee on the 14% wage-loss disability awarded herein pursuant to Ark. Code Ann. § 11-9-715
and Coleman v. Holiday Inn, 31 Ark. App. 224, 792 S.W.2d 345
(1990).
II. WAGE LOSS
When determining the degree of permanent disability sustained by an injured worker, the Workers’ Compensation 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, degree of pain, and any other matters which may affect the worker’s future earning capacity. 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 stabilized, and that no further treatment will improve that 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 a permanent and total disability. Minor v. Poinsett Lumber Manufacturing Co., 235 Ark. 195, 357 S.W.2d 504 (1962).
In considering the factors which may affect an employee’s future earning capacity, we may consider the claimant’s motivation to return to work, since a lack of interest or negative attitude impedes our assessment of the claimant’s loss of earning capacity.City of Fayetteville v. Guess, 10 Ark. App. 313, 663 S.W.2d 946
(1984). See also Oller v. Champion Parts Rebuilders, 5 Ark. App. 307, 635 S.W.2d 276 (1982).
In the present case, the claimant sustained admittedly compensable injuries to his neck and right upper extremity in the form of a brachial plexus stretch injury on April 17, 1998. Dr. J. Zachary Mason, claimant’s primary treating physician, treated the injuries conservatively and opined that the claimant’s healing period ended on or about October 14, 1998. Thereafter, based on objective studies, Dr. Mason rated claimant’s permanent anatomical impairment at 14% to the body as a whole. A functional capacity evaluation assessed claimant’s maximum level of safe functional capacity as (1) sitting for 20 minutes in a properly aligned chair; (2) standing for 30 minutes; (3) lifting 15 pounds from floor to waist, 15 pounds from waist to shoulder level, and 25 pounds overhead; (4) carrying 30 pounds at waist level for 100 feet on an occasional basis; and (5) pushing and pulling 36 to 41 pounds. The respondent has suggested that these limitations are not causally related to the compensable injury. However, at page 35 of his deposition, Dr. Mason opined that the limitations set forth in the functional capacity evaluation are, in fact, related to the compensable injury.
Claimant is now 60 years old and has a high-school diploma. After serving three years in the Army, claimant’s job history includes primarily construction work and truck driving. Further, he has owned a small shop where he trained high-school students through a government program to repair motorcycles. In the present case, the claimant has shown a very high motivation in attempting to return to work. Notably, the respondents did not
offer to attempt to return the claimant to long-haul trucking within his restrictions after his injury. For his part, the claimant credibly testified that he could not have returned to work as a long-haul trucker anyway because he would not be capable of performing loading and unloading duties, and there are certain additional physical requirements, including pulling a pin on the release arm under the trailer, and shifting gears repeatedly, which he could no longer perform after his injury. On the other hand, the claimant has returned to work in trucking at a significantly reduced wage, driving a dump truck for as much as 50 hours per week in some weeks. Further, Dr. Mason has indicated that there should be no reason why the claimant could not continue to drive a dump truck if and when that work is available to the claimant.
For his part, the Administrative Law Judge appears to have concluded that, because the claimant could return to work at some capacity at a reduced wage driving a dump truck, the claimant has failed to establish that he has sustained any permanent decrease in his wage-earning capacity. However, we are persuaded by the claimant’s credible testimony that the claimant, in fact, could not return to work earning the same wage that he earned previously as a long-haul trucker, and the preponderance of the credible evidence indicates that the claimant’s return to work as a dump truck driver has, in fact, been at a reduced wage. After considering the claimant’s relatively advanced age and limited education, his relatively limited work experience, and high motivation to attempt to return to work in the trucking industry at reduced wages, the nature and extent of his injury and permanent physical restrictions, and all other relevant factors, we find that the claimant has sustained a 14% impairment to his wage-earning capacity in excess of his 14% permanent anatomical impairment established by the medical evidence and accepted by the respondents.
Therefore, after conducting a de novo review of the entire record, and for the reasons discussed herein, we find that the claimant has failed to establish by a preponderance of the evidence that the respondents controverted the claimant’s 14% anatomical impairment rating. Therefore, we find that the Administrative Law Judge’s decision in this regard must be affirmed. However, we also find that the claimant has established that he sustained a 14% impairment to his wage-earning capacity in excess of his 14% anatomical impairment. Therefore, we find that the Administrative Law Judge’s decision in this regard must be reversed. In addition, we find that the claimant’s attorney is entitled to the maximum statutory attorney’s fee under Ark. Code Ann. § 11-9-715 on the controverted wage-loss award.
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, 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).
IT IS SO ORDERED.
______________________________ ELDON F. COFFMAN, Chairman
______________________________ MIKE WILSON, Commissioner
I respectfully concur in part and dissent in part from the majority opinion. Specifically, I concur in the majority’s finding that the claimant has failed to prove by a preponderance of the evidence that the respondent controverted the claimanit’s fourteen percent (14%) permanent anatomical impairment rating. However, I must respectfully dissent from the majority opinion awarding the claimant a fourteen percent (14%) loss in 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.
Therefore, I respectfully concur in part and dissent in part from the majority opinion.
_____________________________ MIKE WILSON, Commissioner
_____________________________ SHELBY W. TURNER, Commissioner
Commissioner Turner concurs in part and dissents in part.
I concur with the finding in the principal opinion that claimant has proven by a preponderance of the evidence that he is entitled to benefits for wage-loss disability in amount equal to at least 14% to the body as a whole. However, I must respectfully dissent from the failure to award benefits for wage-loss disability in excess of 14% to the body as a whole. I must likewise respectfully dissent from the finding that respondent did not controvert claimant’s entitlement to benefits for a permanent anatomical impairment of 14% to the body as a whole.
_____________________________ SHELBY W. TURNER, Commissioner