BANKS v. BENNETT TRUCK LINES, INC., 1996 AWCC 175

CLAIM NO. D505485

CHARLES J. BANKS, EMPLOYEE, CLAIMANT, v. BENNETT TRUCK LINES, INC., EMPLOYER, RESPONDENT NO. 1, and UNION STANDARD INSURANCE CO., CARRIER, RESPONDENT NO. 1, and SECOND INJURY TRUST FUND, RESPONDENT NO. 2

Before the Arkansas Workers’ Compensation Commission
OPINION FILED AUGUST 12, 1996

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

Claimant represented by HENRY H. BOYCE, Attorney at Law, Newport, Arkansas.

Respondent No. 1 represented by THOMAS W. MICKEL, Attorney at Law, Little Rock, Arkansas.

Respondent No. 2 represented by TERRY PENCE, Attorney at Law, Little Rock, Arkansas.

Decision of Administrative Law Judge: Affirmed in part and reversed in part.

[1] OPINION AND ORDER
[2] Respondent appeals from the decision of the Administrative Law Judge filed August 4, 1995. After conducting a de novo review of the entire record, we affirm the decision of the Administrative in part and reverse in part. We affirm the decision of the Administrative Law Judge finding that the preponderance of the evidence fails to show that this claim is barred by the statute of limitations and fails to show a causal connection between the claimant’s surgery in 1987 and his compensable injury. However, we reverse the finding of the Administrative Law Judge that the claimant has sustained a 40% wage loss disability over and above his 10% physical impairment rating. Since we reverse the award of wage loss disability, we need not address the issue of Second Injury Fund liability.

[3] The claimant sustained an admittedly compensable injury to his lower back on April 24, 1985 when he fell backwards over a pallet. The claimant was examined and treated for his injury by Drs. John Collier, Samuel Meredith, Thomas Weems, and John Wilson. The examination and tests performed by these doctors conclusively showed that the claimant was not suffering from a herniated disc. On April 21, 1985, Dr. Wilson assigned the claimant a 15% permanent anatomical impairment rating to the body as a whole, 5% for degenerative disc disease and 10% for aggravation of that process. After assigning the claimant a permanent impairment rating, Dr. Wilson released the claimant to return to work. In his deposition, Dr. Wilson stated: “I did not feel that this gentleman was going to materially damage himself by going back to work, sir.” Likewise, when Dr. Weems released the claimant to return to work he stated: “I do not feel that Mr. Banks is in any particular danger with any type of work but would predict that he would have more pain with heavier type of work. From this I cannot make any specific limitations about weights or types of activities but more less advise you on a `try and see’ plan without any worry about serious dangers.”

[4] As noted above, the claimant sustained an admittedly compensable injury to his lower back on April 24, 1985. The claim was accepted as compensable and appropriate medical and temporary total disability benefits were paid. After being assigned a permanent partial impairment rating, permanent partial disability benefits were paid to the claimant up through February 24, 1987. Ark. Code Ann. §11-9-701 (B)(1987) states pertinent part:

In cases where compensation for disability has been paid on account of injury, a claim for additional compensation shall be barred unless filed with the commission within one (1) year from the date of the last payment of compensation, or two years from the date of injury, whichever is greater.

[5] On February 17, 1987, the claimant filed an A-7 with the Commission seeking additional benefits. Clearly, the A-7 was filed within the applicable statute of limitations. Accordingly, we find that the statute of limitations does not bar this claim.

[6] We further find that the claimant has failed to prove a causal connection between his surgery for a herniated nucleus pulposus in April of 1987 is causally related to his 1985 compensable injury. Claimant underwent extensive diagnostic testing after his compensable injury. All such tests failed to reveal a large herniated disc at L4-5. The CT scan conducted in April of 1985 following the claimant’s injury noted that particular attention was directed to L5-S1 level but failed to show any disc herniation. Surely, if the claimant sustained a large herniated disc at L4-5 as a result of the compensable injury, it would have been revealed by at least one of the several physicians attending to his treatment. Accordingly, we find that the claimant has failed to prove by a preponderance of the evidence a causal connection between this 1985 injury and subsequent 1987 surgery.

[7] Finally, the medical evidence, coupled with the fact that the claimant did return to work following his release by Dr. Wilson, fails to substantiate any wage loss disability. In determining wage loss disability, the Commission may take into consideration the workers’ age, education, work experience, medical evidence and any other matters which may reasonably be expected to affect the workers’ future earning power. Such other matters are motivation, post-injury income, credibility, and demeanor.Glass v. Edens, 233 Ark. 786, 346 S.W.2d 685 (1961); City ofFayetteville 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). The claimant’s lack of interest in pursuing employment with his employer and negative attitude in looking for work are impediments to our full assessment of wage loss.

[8] We find from a preponderance of the evidence that the claimant has failed to prove that he has sustained any wage loss disability over and above the 10% permanent impairment rating assigned for the aggravation of the preexisting degenerative disc disease. It was not until after the claimant suffered a heart attack and after he underwent back surgery, for a condition which has been found to be unrelated to his compensable injury, that the claimant sustained a decrease in his ability to earn wages. The subsequent injuries are independent intervening causes which extinguish respondent No. 1’s liability for any additional benefits. Bearden Lumber Co. v. Bonds, 7 Ark. App. 65, 644 S.W.2d 321 (1983).

[9] The evidence reflects that the claimant successfully completed high school, has served in the military, driven trucks both over the road and as a local driver, and has experience in the operation of various types of heavy equipment. Following the claimant’s compensable injury and prior to his heart attack and back surgery, the claimant was able to return to work as a local truck driver. While the claimant implied that he was only able to drive two and half to three hours at a time due to the pain in his back, the record reveals that the longest trips the claimantever had to take after returning to work were two and half to three hour trips. Moreover, the record reveals that the claimant was only required to work one or two times per week due to the nature of his job, not due to his back condition. The claimant possessed the desire to return to work once his healing period for his compensable injury had ended and he was released by his doctor. However, after suffering his heart attack and after undergoing back surgery his desire and motivation to return to work dissipated. Moreover, we cannot overlook the fact that the claimant is currently drawing $742.00 per month in social security and military pension benefits. Prior to his compensable injury, the claimant was only earning a gross income of $220.00 per week. Obviously, the claimant lacks the financial motivation to give up his benefits and return to work.

[10] Based upon our de novo review of the entire record and in light of the claimant’s age, education, prior work experience, medical records, physical condition and the claimant’s lack of interest and negative attitude in looking for work, we find that the claimant has failed to prove that he suffers a wage loss disability in connection with his compensable injury. What is more likely true than not is that the claimant’s heart attack and back surgery are responsible for any loss in the claimant’s wage earning capacity. These conditions are not related to the claimant’s compensable injury and, therefore the respondents are not responsible for any wage loss associated therewith. Accordingly, we reverse the Administrative Law Judge’s finding of wage loss disability.

[11] IT IS SO ORDERED.

JAMES W. DANIEL, Chairman ALICE L. HOLCOMB, Commissioner

[12] Commissioner Humphrey dissents.