CLAIM NO. F103351
Before the Arkansas Workers’ Compensation Commission
OPINION FILED JULY 9, 2009
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE M. KEITH WREN, Attorney at Law, Little Rock, Arkansas.
Respondents’s No. 1 represented by the HONORABLE, Attorney at Law, Fort Smith, Arkansas.
Respondent No. 2 represented by the HONORABLE DAVID PAKE, Attorney at Law, Little Rock, Arkansas.
Respondent No. 3 represented by the HONORABLE CHRISTY KING, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed As modified.
OPINION AND ORDER
Respondent No. 1 appeals and Respondent No. 2 cross-appeals an administrative law judge’s opinion filed August 15, 2008. The administrative law
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judge found that the claimant proved she was entitled to additional temporary total disability from September 10, 2002 through May 11, 2006. The administrative law judge found that the claimant proved she was permanently totally disabled. After reviewing the entire record de novo, the Full Commission affirms the administrative law judge’s award of temporary total disability. We find that the claimant proved she was entitled to wage-loss disability in the amount of 30%.
I. HISTORY
Peggy A. Bain, age 58, testified that she graduated from college in 1976 with a Bachelor of Science in Education. Ms. Bain testified that her post-college career was primarily in the teaching field.
Dr. Richard L. Ennis reported in April 1978 that the claimant had a long history of problems with her right knee. Dr. Ennis’ notes indicated that the claimant had undergone three surgical procedures to the right knee. The claimant underwent a right knee arthroscopy in about March 1988. The claimant reported pain in her left knee beginning July 1988.
The claimant underwent a lumbar laminectomy, decompression, and fusion in April 1996.
The claimant testified that she had been a teacher for Hughes School District over 16 years. The parties stipulated that an employment relationship existed at all relevant times, including March 16, 2001 and that an incident occurred on that date involving an altercation at school. The claimant testified
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that a student lowered her shoulder and “knocked me into a chemistry table, my back into a chemistry table. I fell back into a chemistry table, forward into another chemistry table, hitting my head and body, and then fell on the floor.”
The parties have now stipulated that the claimant sustained a compensable injury on March 16, 2001. The record indicates that Dr. Ennis saw the claimant on March 19, 2001:
A 50-year-old white female who has been treated by me in the past primarily for right knee problems was injured in the classroom at Hughes High School on March 16, 2001 while trying to break up a fight between some students. She was pushed against a table and fell twisting and injuring her knee. She also injured her neck, her shoulders, and her low back. . . .
Films of the cervical spine show narrowing at the C4-5 interspace and even more pronounced narrowing at C5-6. No definite fracture or subluxation. Films of the lumbar spine show a Grade II spondylolisthesis at L5-S1. Left shoulder films show no bony abnormality. Right knee films show advanced osteoarthritis but no acute fracture.
IMPRESSION:
1. Acute cervical strain with possible cervical disk injury.
2. Contusion left shoulder with Grade I AC sprain.
3. Lumbar spondylolisthesis aggravated by trauma.
4. Lumbar strain.
5. Severe osteoarthritis right knee aggravated by trauma.
It was stipulated that Respondent No. 1 paid some medical and related expenses prior to controverting the claim.
The claimant underwent a right total knee replacement on April 17, 2001. The principal diagnosis at that time was “Osteoarthritis of the right knee.” The pre-and post-operative diagnosis was “1. Severe osteoarthritis, right knee. 2. Post-traumatic arthritis, right knee.”
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An MRI of the claimant’s lumbar spine was taken on August 15, 2001, with the following impression: “1. No evidence of disc herniation. 2. Extensive degenerative disc disease at the L5-S1 level with approximately 40% anterior subluxation of L5 on S1.”
The record indicates that Respondent No. 1 initially paid benefits through October 12, 2001 and controverted the claim after that date.
The claimant began treating with Dr. Keith H. Bridwell, an orthopaedic surgeon, on February 11, 2002. Dr. Bridwell’s impression was “Postlaminectomy, spondylolisthesis, and primary isthmic spondylolisthesis L5-S1.”
Dr. Bridwell performed an operation on May 9, 2002: “Revision, posterolateral spinal fusion, L5 to S1. Posterior segmental spinal instrumentation, L5 and S1, four pedicle screws, two rods. All titanium. All revision status. Substantially harder than a traditional case because of its revision nature. Overall summary of the case then was an anterior interbody fusion at L5-S1 with cage and autogenous bone graft. A right posterior autogenous bone graft. Posterolateral spinal fusion, L5-S1. Posterior segmental spinal instrumentation, L5-S1, four screws, two rods. The posterior was all revision status.” The pre-and post-operative diagnoses were “Post-laminectomy, post-fusion at another institution, isthmic grade 2 spondylolisthesis with foraminal stenosis at L5 bilaterally.”
The claimant followed up with Dr. Bridwell on September 9, 2002:
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Ms. Bain is a 51+7 year old who is four months post-op. We knew she had a number of social issues preoperatively and anticipated that she would have an unusually slow recovery post-operatively. But she has exceeded our expectations and has done far far worse than we thought she was going to do. She is on a combination of Darvocet and Tylenol #3. Bernie has been working with her on that. This is quite a bit less pain medicine than what she was taking preoperatively. We asked her to get some work up at home. We talked about lumbar MRI. We talked about ultrasound studies to rule out venous thrombosis and although we have tried very hard to get her to do that she has not followed through on it. . . . Biggest complaint is just bilateral groin pain. . . .
IMPRESSION/DIAGNOSIS
Post laminectomy spondylolisthesis, status post reconstruction. X-rays look fine and actually her examination per se is relatively unremarkable.
TREATMENT PLAN
I explained that I did not quite know why she was having such pain and doing so poorly so we suggested a very extensive workup. We have suggested many of these things in the past and she has not followed through on it. Our suggestions though are #1: AP pelvis x-ray.
#2. Bone scan study both films basically looking for stress fracture in pelvis or pubic rami.
#3. Sed rate and CRP study. No clinical evidence of infection.
#4. MRI L1 to the sacrum looking principally for pathology at L3-L4 which might mimic groin pathology and the like. Radiographically her 3-4 segment looks pretty normal though.
Perhaps some of the problem issue is just that she is taking less pain medicine than preop but we would prefer reduce pain medication than increase it. We will work very very hard to try to get her to try a little bit harder to comply with getting the full work up.
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Dr. Bridwell provided the following Addendum on or about September 12, 2002: “Did the AP pelvis film. I went over it with Dr. Glattes. Femoral heads look fine and femoral necks look fine, ilium looks fine, pubic rami look fine, spinal implants look fine, cage looks fine. Everything looks fine on that x-ray.”
Dr. Ennis noted on May 3, 2004, “Since Ms. Bain was last seen here over 2 years ago, she has had a lumbar anterior and posterior fusion done in St. Louis. She has continued back pain, continued neck pain. She complains of increasing pain in both of her hips. . . . X-rays show mild arthritis in the hips, bilaterally and mild to moderate arthritis the medial aspect of the left knee. . . . Suggested that she resume the use of a back support and try to get on her back exercise program.”
A pre-hearing order was filed on August 25, 2004. The claimant contended, among other things, that she sustained compensable injuries to her right knee and lower back. The claimant contended that she was entitled to reasonably necessary medical treatment, including a total knee replacement on April 17, 2001 and spinal surgery on May 9, 2002. The claimant contended that she was entitled to temporary total disability “from the date of the injury and continuing through the date that her healing period ended which will be identified at the scheduled hearing, if applicable.”
Respondent No 1 contended, among other things, that it initially accepted the claim as compensable and paid medical through on or about October 12,
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2001, but that it subsequently controverted the claim based on a lack of objective medical findings.
A hearing was held on October 1, 2004. The claimant testified that she had not been able to work since March 16, 2001. The claimant described additional medical treatment since September 9, 2002: “I have had pain medications from Dr. Ennis, and well as my internal medicine specialist.” The claimant testified that she wore a TENS unit “when I can afford the pads.”
An administrative law judge filed an opinion on November 16, 2004. The administrative law judge found that the claimant failed to prove she sustained a compensable injury to her right knee on March 16, 2001, but that the claimant proved she sustained a compensable back injury on that date. The administrative law judge also found, in pertinent part:
5. The claimant has proven . . . that she is entitled to temporary total disability for the period beginning March 17, 2001, and continuing through at least September 9, 2002, which was the latest medical evidence submitted by either party regarding the claim(s).
6. Respondents are responsible for all hospital, medical, and related expenses as the result of claimant’s back injury, including, but not limited to spinal surgery performed on May 9, 2002, and respondents remain responsible for continued, reasonably necessary medical treatment. . . .
8. The end of claimant’s healing period, as well as entitlement to additional temporary total disability after September 9, 2002, for the claimant’s back injury requires further development of the medical evidence and is by necessity reserved.
The Full Commission affirmed and adopted the administrative law judge’s decision in an opinion filed September 1, 2005. The parties have agreed that “the prior Opinion of record in this claim filed on November 16, 2004, by the
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Administrative Law Judge which was subsequently affirmed and adopted by the Full Workers’ Compensation Commission, Opinion filed September 1, 2005, was a final decision and the law of the case.”
Dr. Reza Shahim provided an Independent Medical Evaluation on May 11, 2006:
Ms. Bain is a 55 year old lady who has a work injury from 2001. Reportedly she was a teacher at a High School and was trying to break up a fight and she injured her neck and back at that time. She underwent what appears to be an anterior, posterior lumbar fusion at L5-S1 for spondylolisthesis. She was told that she did not have a complete fusion and she continues to have back and leg pain. Her symptoms have worsened over time. She has developed increasing back pain and bilateral leg pain. . . . She has had what sounds like epidural steroid injections and nerve blocks multiple times since 2001 with very little benefit. . . .
I reviewed an MR of the lumbar spine from 2002 which showed postoperative changes from an L5-S1 fusion. She has what appears to be a Grade I to II lumbar spondylolisthesis.
DECISION MAKING: Ms. Bain is not at MMI. I think she should have an MR of the lumbar spine to rule out a disc herniation at the adjacent level. I will obtain x-rays of the lumbar spine today to assess her fusion. I think she should be evaluated by pain management for dorsal column stimulator or a narcotic pump for management of her pain. I will be glad to refer her to Dr. Boop in Memphis who is a neurosurgeon who could assess her for pain management and could refer her to the pain clinic. If she does not have an anatomical nerve compression that could explain her leg symptoms, dorsal column stimulation may be of some benefit to her and she would have to go through trials for that. Her impairment rating for the one level lumbar spine, anteriorly, posteriorly fused is 10% impairment of the whole person. I will be glad to re-evaluate her to make the referrals to neurosurgery in Memphis if needed.
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The parties have stipulated that the claimant’s healing period ended on or before May 11, 2006.
The parties stipulated that Respondent No. 1 accepted and paid a 10 percent whole-body impairment as a result of the compensable injury. The parties stipulated that Respondent No. 1 controverted temporary total disability beyond the benefits previously paid, as well as liability for any wage-loss disability.
A pre-hearing order was filed on April 23, 2008. The claimant contended that she was entitled to additional temporary total disability beginning September 10, 2002 and continuing through May 11, 2006. The claimant contended that she was entitled to permanent total disability benefits beginning May 11, 2006 or alternatively substantial wage-loss disability in an amount determined by the Commission. The claimant contended that a controverted attorney’s fee should attach to all additional indemnity benefits awarded.
Respondent No. 1 contended that it had paid all appropriate benefits for which it was liable and that the claimant could not prove she was temporarily totally disabled during the period claimed. Respondent No. 1 contended that the claimant was not permanently totally disabled and that if the claimant was entitled to any wage-loss disability, then it was the responsibility of Respondent No. 2.
Respondent No. 2 acknowledged that it was “responsible for some wage-loss disability and that it has delayed taking a position on the percentage of
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wage-loss while attempting to negotiate a comprehensive settlement of the claim. Respondent No. 2 stated that it would accept a specific percentage of wage-loss disability within fifteen (15) days while maintaining that it has not controverted wage-loss disability in the event the claim cannot be amicably resolved.”
The parties agreed to litigate the following issues:
1) Claimant’s entitlement to additional temporary total disability.
2) The extent of claimant’s permanent disability.
3) Extent of controversion for purposes of attorney’s fees.
An Investigation Report indicates that surveillance of the claimant was done at various times on April 23-25, 2008 and May 3, 2008. The claimant was briefly observed in activities such as walking across her lawn with a garden hose and cleaning out her vehicle at an auto parts store. The investigator reported that the claimant “moved in a smooth, fluid manner without exhibiting any external signs of impairment or physical restriction. No visible braces, supports or orthopedic devices were observed.”
A hearing was held on June 27, 2008. At that time, it was stipulated that Respondent No. 2 had accepted and had not controverted wage-loss disability in the amount of 30%. The claimant testified regarding her back pain since September 9, 2002, “I have been in constant chronic pain. I have had no quality of life. The surgery that I had on my back has left me with more pain than I could possibly describe today. I have probably a completely totally destroyed life.” The claimant testified that she took Neurontin for pain, but there were side
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effects including light-headedness and double vision. The claimant testified that she took a muscle relaxer which caused double vision, an inability to concentrate, and drowsiness. The claimant took Topamax for pain, which affected her cognitive ability.
The claimant testified that she had difficulty standing, walking, and climbing stairs. The claimant testified that she was physically unable to return to work.
An administrative law judge filed an opinion on August 15, 2008. The administrative law judge found that the claimant proved she was entitled to additional temporary total disability “for the period beginning September 10, 2002, and continuing through May 11, 2006.” The administrative law judge found that the claimant proved she was permanently totally disabled. Respondent No. 1 appeals to the Full Commission and Respondent No. 2 cross-appeals.
II. ADJUDICATION
A. Temporary Disability
Temporary total disability is that period within the healing period in which the employee suffers a total incapacity to earn wages. Ark. State Hwy. Dept. v. Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981). The healing period ends when the employee is as far restored as the permanent character of her injury will permit, and if the underlying condition causing the disability has become more stable and nothing in the way of treatment will improve that condition, the
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healing period has ended. High Capacity Prods. v. Moore, 61 Ark. App. 1, 962 S.W.2d 831 (1998). Whether an employee’s healing period has ended is a question of fact for the Commission. Id.
In the present matter, the parties stipulated that the claimant sustained a compensable injury on March 16, 2001. The claimant’s post-compensable injury diagnoses included lumbar strain. An MRI of the claimant’s lumbar spine in August 2001 showed an approximately 40% anterior subluxation of L5 on S1. The claimant underwent surgery to her lumbar spine on May 9, 2002. Dr. Bridwell, the treating surgeon, saw the claimant on September 9, 2002 and recommended a number of diagnostic studies in order to determine the source of the claimant’s continued complaints of pain. The record does not show that these diagnostic studies were carried out. The evidence in the present matter demonstrates that the claimant remained within a healing period for her compensable injury and was totally incapacitated from earning wages as of September 9, 2002. The claimant testified in October 2004 that she was still not physically able to return to work. Dr. Shahim evaluated the claimant on May 11, 2006. Although Dr. Shahim opined that the claimant had not reached maximum medical improvement, he also assigned the claimant an anatomical impairment rating. Permanent impairment, which is a medical condition, is any permanent functional or anatomical loss remaining after an employee’s healing period has ended. Johnson v. General Dynamics, 46 Ark. App. 188, 878 S.W.2d 411
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(1994). Moreover, the parties in the present matter stipulated that the claimant’s healing period ended on or before May 11, 2006.
Based on the record before us, the Full Commission affirms the administrative law judge’s finding that the claimant proved she was entitled to additional temporary total disability benefits from September 10, 2002 through May 11, 2006. The claimant in the present matter proved that she remained within her healing period and was totally incapacitated to earn wages from September 10, 2002 through May 11, 2006. There are no medical records before the Commission, in the present matter, demonstrating that the claimant’s healing period ended before May 11, 2006.
B. Permanent Disability
In considering claims for permanent partial disability benefits in excess of the employee’s percentage of permanent physical impairment, the Commission may take into account, in addition to the percentage of permanent physical impairment, such factors as the employee’s age, education, work experience, and other matters reasonably expected to affect her future earning capacity. Ark. Code Ann. § 11-9-522(b)(1). “Permanent total disability” means inability, because of compensable injury, to earn any meaningful wages in the same or other employment. Ark. Code Ann. § 11-9-519(e)(1). The burden of proof shall be on the employee to prove inability to earn any meaningful wage in the same or other employment. Ark. Code Ann. § 11-9-519(e)(2).
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In the present matter, the claimant is age 58 and holds an undergraduate degree in education. The claimant primarily worked as a teacher following graduation from college. The parties stipulated that the claimant sustained a compensable injury on March 16, 2001. The claimant sustained injuries including a lumbar strain, and she has not returned to work since March 16, 2001. The claimant underwent low-back surgery on May 9, 2002. Dr. Shahim assigned the claimant a 10% anatomical impairment rating on May 11, 2006. Respondent No. 1 has accepted and paid the anatomical impairment rating.
The instant claimant did not prove that she was unable to earn any meaningful wages in the same or other employment. No treating physician has stated that the claimant is physically or mentally unable to return to the teaching profession. Nor do we find that the claimant is unable, because of her reliance on prescription medication, to return to work as a teacher. The claimant is clearly not motivated to return to teaching or any form of gainful employment. The claimant’s lack of motivation is a factor which can be considered in assessing the claimant’s entitlement to wage-loss disability. City of Fayetteville v. Guess, 10 Ark. App. 313, 663 S.W.2d 946 (1984). The Full Commission additionally notes the surveillance of record, which was not done until April and May of 2008. This surveillance generally shows that the claimant is not physically incapacitated. With regard to her ability to perform appropriate work within her physical restrictions after the end of her healing period on May 11, 2006, the claimant was not a credible witness before the Commission. The Full
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Commission finds that the claimant did not prove she was entitled to wage-loss disability greater than the 30% accepted by Respondent No. 2, Second Injury Fund.
Based on our de novo review of the entire record, the Full Commission affirms the administrative law judge’s opinion as modified. The Full Commission finds that the claimant proved she was entitled to additional temporary total disability from September 10, 2002 through May 11, 2006. The Full Commission affirms the administrative law judge’s finding that the claimant proved she was entitled to wage-loss disability in excess of the claimant’s 10% anatomical impairment, but we find that the claimant proved she was entitled to wage-loss disability in the amount of 30%. The claimant did not prove she was permanently and totally disabled.
The claimant’s attorney is entitled to fees for legal services in accordance with Ark. Code Ann. § 11-9-715(Repl. 1996). For prevailing on Respondent No. 1’s appeal of the award of additional temporary total disability, the claimant’s attorney is entitled to an additional fee of two hundred fifty dollars ($250), pursuant to Ark. Code Ann. § 11-9-715(b) (Repl. 1996). Respondent No. 2 has not controverted the claimant’s entitlement to 30% wage-loss disability and is not liable for any attorney’s fee in the present matter.
IT IS SO ORDERED.
_______________________________ A. WATSON BELL, Chairman
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_______________________________ KAREN H. McKINNEY, Commissioner
Commissioner Hood dissents.
PHILIP A. HOOD, Commissioner.
DISSENTING OPINION
I must respectfully dissent from the majority opinion. After a de novo
review of the record, I find, as did the Administrative Law Judge, that the claimant has proved by a preponderance of the evidence her entitlement to permanent and total disability benefits, and therefore, I must respectfully dissent.
Permanent total disability is defined as inability, because of compensable injury or occupational disease, to earn any meaningful wages in the same or other employment. Ark. Code Ann. § 11-519 (e)(1). The burden of proof shall be on the employee to prove inability to earn any meaningful wage in the same or other employment. Ark. Code Ann. § 11-519 (e)(2). The same factors considered when analyzing wage loss disability claims are usually considered when analyzing permanent and total disability claims. See Ark. Code Ann. § 11-9-519 (c); Rutherford v. MidDelta Community Services, Inc. ___ Ark. App. ___, ___ S.W. 3d ___ (2008). Such factors include the worker’s age, education, work experience, medical evidence and any other matters
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which may reasonably be expected to affect the worker’s future earning power. Other factors include motivation, post-injury income, credibility, demeanor, prior work history and education. 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), 54 Ark. App. 130, 923 S.W.2d 886 (1996). Here, the claimant is 57 years old. She has a Bachelor of Science in Education, which she received in 1976. Her work experience has primarily been as a school teacher at the high school level. Prior to her injury the claimant was employed by the Hughes School District for more than 16 years. Prior to the 2001 injury, the claimant had received extensive medical treatment for her right knee and her back, including surgeries, which had left the claimant with significant physical impairment, requiring her to use crutches to ambulate. However, as teaching is a profession that relies more on intellect than on physical capability, the claimant was able to perform her job duties prior to the March 16, 2001 injury.
Following the March 16, 2001 injury, the claimant underwent further extensive medical treatment, including another surgery on her right knee. On May 9, 2002, the claimant underwent a second surgical procedure on her low back. The surgical procedure was an anterior/posterior lumbar fusion with
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instrumentation, including rods, screws, and cages. The claimant has not returned to gainful employment since March 16, 2001.
As a result of the claimant’s prior impairments and disabilities, together with her most recent injury, she cannot return to work as a teacher. The record reflects that the claimant is taking multiple medications which affect her memory and her cognitive abilities. Unfortunately, although prior to March 16, 2001 she was able to teach despite her physical limitations, now, her intellectual condition precludes her from returning to teaching. Furthermore, in addition to her intellectual deficits, she is precluded from seeking other types of employment due to her physical impairments. As such, the evidence clearly shows that the claimant has met her burden of proving by a preponderance of the evidence her inability to earn any meaningful wages in the same or other employment. Therefore, I find that the claimant has proved her entitlement to permanent and total disability benefits.
For the aforementioned reasons I must respectfully dissent.
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