CLAIM NO. F104417
Before the Arkansas Workers’ Compensation Commission
OPINION FILED JUNE 29, 2006
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the Honorable Kristofer E. Richardson, Attorney at Law, Jonesboro, Arkansas.
Respondents No. 1 represented by the Honorable Jarrod S. Parrish, Attorney at Law, Little Rock, Arkansas.
Respondent No. 2 represented by the Honorable Judy W. Rudd, Attorney at Law, Little Rock, Arkansas.
Decision of the Administrative Law Judge: Affirmed as modified.
OPINION AND ORDER
The respondent appeals an administrative law judge’s opinion, which was filed on January 12, 2006. The administrative law judge found, “When the claimant’s age, education, work history, permanent restrictions and physical limitations are considered, the evidence preponderates that he suffered a loss of earning capacity in the amount of 70% over and above his anatomical impairment.”
After reviewing the entire record de novo, the Full Commission affirms, as modified, the opinion of the administrative law judge. The Full Commission finds that the claimant has proven that he is entitled to wage-loss disability in the amount of 10%, in addition to his 20% permanent anatomical impairment rating.
I. History
The claimant, age 50 (4/29/56), began working for the respondent on December 16, 1999. The claimant had experienced a prior incident with his back on August 9, 1994, during an episode of getting out of the bathtub, which resulted in a low back strain, for which he sought medical treatment. Shortly after this incident, the claimant’s low back strain resolved, and he resumed his regular activities without any sort of ongoing problems with his back until March 17, 2001, at which time, the claimant was working as an on-call driver salesman during the weekend for the respondent refilling gas tanks for people who called in after hours. According to the claimant, because he had experienced problems with his truck not starting, on the morning of March 17, 2001, he went outside to start his truck, in the event of a service call for gas. The claimant reported that as he stepped off of the running board onto the ground, he injured his back.
As a result of this incident, the claimant underwent two surgeries to his back with Dr. W. Craig Clark. He performed the first surgery on March 28, 2002, due to a “herniated nucleus pulposus, L3-L4, right, and lateral recess stenosis, L4-L5, left.” The operative procedures instituted to correct these diagnoses included, “hemilaminectomy with microdiskectomy, L4-L5 left, and partial hemilaminectomy with microdiskectomy, L3-L4 right.” The claimant underwent a second surgery on September 20, 2002, due to a “herniated nucleus pulposus, L4-L5, right.” Specifically, Dr. Clark performed a “partial hemilaminectomy with microdiskectomy and removal of extensive epidural fibrosis, L4-L5, right.”
Prior to his second surgery, on June 13, 2002, the claimant underwent a functional capacity evaluation (FCE).
This evaluation revealed that the claimant could perform a job within the “heavy” demand level. This FCE also states that the claimant’s ability to return to his previous work is undeterminable secondary to his refusal to complete the nonmaterial handling portion of the evaluation. The evaluator reported the following occupational history:
An occupational history was obtained with Norman [the claimant] reporting he has been employed as a driver for the Ferrell Gas for nine years. He states prior to this he was enlisted in the US Army for 12 years. Norman states his job requires him to lift up to 75 pounds independently and 170 pounds with help from the floor to waist or shoulder level. He also reports he is required to sit, stand, walk, reach forward and overhead occasionally and bend, stoop and twist frequently. Norman reports he normally drives a 3/4 ton flatbed pickup for deliveries but occasionally drives a 2 ton gas truck.
As a result of the claimant’s March 17, 2001 back injury, and two resulting surgeries, on October 22, 2002, Dr. Clark assessed the claimant with a 20% anatomical impairment rating and pronounced that he was at maximum medical improvement (MMI).
The respondent controverted the compensability of the claimant’s back injury, temporary total disability, medical expenses and the 20% impairment rating. As a result, a hearing was held on March 19, 2004, concerning these issues. After a hearing before the Commission, in an opinion dated March 22, 2004, the administrative law judge found the claimant’s March 17, 2001 back injury to be compensable and awarded benefits, which included the 20% anatomical impairment rating. Although the respondent filed an appeal from this decision to the Full Commission, the only issue raised on appeal was whether or not the 20% impairment rating assigned by Dr. Clark for the claimant’s back was accurate. The Full Commission found this assessment to be correct. Therefore, in an opinion dated December 3, 2004, the Full Commission affirmed and adopted the opinion of the administrative law judge. The respondent filed a timely notice of appeal from that opinion to the Arkansas Court of Appeals. However, prior to the record being filed with the Court of Appeals, the respondent requested that its notice of appeal be dismissed. In an order dated February 9, 2005, the Full Commission granted the respondent’s Motion to Dismiss its appeal to the Court of Appeals.
On August 24, 2005, Dr. Clark saw the claimant in consultation due to alleged residuals from his compensable back injury. He reported that the claimant was last seen almost three years ago. Due to localized tenderness palpable on the left S1 joint, a trigger point injection was performed. Dr. Clark also recommended that an MRI of the claimant’s lumbar spine be performed due to persistent symptoms status-post a two-level surgery.
In a Vocational Evaluation Report dated August 29, 2005, evaluator, Ronda Gray reported that the claimant had transferrable skills to the following occupations: toll collector; furniture rental consultant; storage facility rental clerk; salesperson, appliances; diesel mechanic; sales route driver; dump truck driver; and escort vehicle driver.
The respondent has controverted the claimant’s entitlement to any permanent and total disability benefits or wage-loss disability benefits. Therefore, the claimant has brought this current claim asserting his rights to permanent and total disability benefits, or in the alternative wage-loss disability benefits in excess of the 20% permanent physical impairment.
A hearing was held in this matter on November 4, 2005. During the hearing, the claimant gave testimony. The claimant testified he completed the 11th grade and later obtained his G.E.D. The claimant has some prior work experience as a roofer. According to the claimant, he next went into the military and served some 15 years, and he obtained training as a diesel mechanic. While in the military, the claimant testified that he worked exclusively as a heavy equipment repairman. The claimant characterized all of his prior jobs, including his work with the respondent, as manual labor, heavy jobs.
The claimant denied any accidents or injuries since his compensable injury of March 17, 2001. The claimant testified that as of the date of the hearing, he takes Oxaprozin and Hydrocodone for pain, twice daily. The claimant estimated that on a good day he can sit or stand comfortably for 30 minutes, and on a bad day, he is able to do the same for 15 minutes. He further estimated that he is able to walk the distance of a city block and lift up to five to 10 pounds.
According to the claimant, he basically does nothing all day, as he maintains he is unable to do any household chores or yard work. The claimant maintains he has not driven a car in six months because it is too painful and due to him taking pain medication. The claimant testified that since his injury, there has been one incident wherein he required the assistance of a wheelchair for about two weeks. Specifically, the claimant testified that there was an instance wherein he got up one morning and was unable to walk. However, he admits that since this time, he has not required the assistance of a wheelchair. The claimant testified that he would cooperate with the respondent if offered a program of rehabilitation or work placement program although he does not feel this would be very realistic. The claimant testified that he does not believe that there is any work he can do. He denied receiving any Social Security disability benefits. However, he admitted he has been approved for a disability pension from the Veterans Administration, but had not received anything from them as of the date of the hearing.
On cross-examination, the claimant admitted that a doctor has not restricted him from driving. The claimant admitted to telling the vocational specialist in August (2005) he was not interested in retraining and that he did not want any kind of vocational assistance. He also admitted that he last worked for the respondent performing light-duty work in November of 2001. The claimant admitted that he knows how to weld and run a cutting torch. The claimant further admitted that he holds a current commercial driver’s license (CDL). He also admitted to having performed factory-type work between his roofing work and going into the military. The claimant admitted he has made no effort to look for a job as a diesel mechanic, regular mechanic or for any employment since leaving Ferrell Gas.
On redirect examination, the claimant testified he did not recall being released back to work after his second surgery, which was performed on September 20, 2002.
The claimant admitted on recross examination that one of the reasons he did not go for the second scheduled functional capacity evaluation (FCE), is because he has high blood pressure and this was something that required a doctor’s release before he could do the FCE. The claimant further admitted that he has not presented anything at the hearing to show he has been restricted from working since his second surgery.
Upon being questioned by the Commission, the claimant testified that he did not recall why he had previously indicated he was not interested in job placement or retraining. The claimant maintains he is unaware of any job he can do based on his past work history. The claimant also admitted that while working in a shop or as a mechanic, he would probably not be in a position where he would be required to stand or sit all the time. He agreed that such a position would give him an opportunity to move around and change positions if he needed to. However, the claimant testified that he did not feel he could perform any type of work even if given the opportunity to move around and change positions.
Ronda Gray, a vocational rehabilitation counselor, was called as a witness on behalf of the respondent. Ms. Gray testified that she has been a vocational rehabilitation counselor approximately seven and a half years, and she has been doing vocational assessments for Genex some three and a half years. In looking at the jobs the claimant could perform, Ms. Gray admitted to using the physical capacity of heavy, which was documented in the FCE report from June of 2002. Therefore, she admitted that the jobs for which the claimant had transferrable skills to ranged from heavy all the way down to sedentary-type work.
Ms. Gray testified that she was aware that the FCE which she relied upon was more than three years old. She admitted to having requested a new FCE. Ms. Gray testified that prior to her interview with the claimant, and the preparing of her report, she was only provided the FCE report (from June of 2002). Hence, she admitted she was not provided with any report of the claimant having undergone surgery on September 20, 2002, which was after this FCE. Ms. Gray admitted that this is something that would have been helpful in doing her evaluation if this (the surgery) changed the claimant’s functional capacity.
A Prehearing Conference was held in this claim on July 26, 2005, and on July 27, 2006, a Prehearing Order was entered. The parties agreed to litigate the following issues:
1). Wage-loss disability.
2). Controverted attorney’s fee.
The claimant contended that he is permanently and totally disabled. Alternatively, the claimant contended that he has sustained wage loss in excess of his permanent impairment rating.
In contrast, the respondent essentially contended that the twenty percent (20%) rating awarded in this matter has been paid. Respondent further contended that the claimant has not sustained wage-loss in excess of his permanent impairment rating and that he is not permanently and totally disabled.
After a hearing before the Commission, the administrative law judge found, that “When the claimant’s age, education, work history, permanent restrictions and physical limitations are considered, the evidence preponderates that he suffered a loss of earning capacity in the amount of 70% over and above his anatomical impairment.”
The respondent appeals to the Full Commission.
II. Adjudication
Wage-loss disability
The burden rests upon the claimant to prove the existence and extent of any permanent disability for a loss of wage earning capacity. In the instant claim, the Full Commission finds that there is insufficient evidence establishing a finding that the claimant’s future wage earning capacity has been impaired by 70%. Instead, we find that the claimant sustained wage-loss disability in the amount of 10%.
In considering claims for permanent partial disability benefits in excess of the employee’s percentage of permanent physical impairment, the Workers’ Compensation Commission may take into account, in addition to the physical impairment, such factors as the employee’s age, education, work experience, and other factors reasonably expected to affect his or her future earning capacity. Such other matters are motivation, post-injury income, credibility, demeanor, and a multitude of other factors. Glassv. 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). A claimant’s lack of interest in pursuing employment with his employer and negative attitude in looking for work are impediments to the Commission’s full assessment of the claimant’s loss of earning capacity.
In order to receive wage-loss disability, the claimant must first prove that he has sustained a permanent physical impairment as a result of his compensable injury. Wal-Mart Stores, Inc. v.Connell, 340 Ark. 475, 10 S.W.3d 727 (2000). In the present case, the Full Commission finds that the clamant has proven by a preponderance of the evidence that he sustained a 20% permanent anatomical impairment to the body as a whole as a result of his compensable injury. Specifically, in the present case, Dr. Clark assessed the claimant with a 20% permanent partial impairment rating to the body as a whole due to his compensable back injury. The respondent has accepted and paid the 20% impairment rating assessed by Dr. Clark for this injury and has not raised the impairment rating as an issue on appeal.
On appeal, the respondent essentially argues that an award of a 70% wage-loss disability is excessive and should be reversed or reduced. The Full Commission agrees that the 70% wage loss disability award is excessive and should be reduced. We find that the claimant proved his entitlement to wage-loss disability in the amount of 10%.
Specifically, the administrative law judge found that the instant claimant was entitled to 70% wage-loss disability over and above his 20% anatomical impairment rating which has already been accepted and paid by the respondent, thereby giving him a total permanent partial disability of 90%. The Full Commission finds that the preponderance of the credible evidence does not support this finding. The instant claimant is 50 years of age, and has performed manual labor jobs all of his life. Hence, the claimant has previous work experience as a factory worker, roofer, diesel mechanic, and most recently he worked for the respondent as a driver delivering propane gas. Although the claimant did not graduate from high school, he later obtained his G.E.D., a CDL, and he possesses the skills to weld and run a cutting torch. In addition to this, the claimant received training and worked as a diesel mechanic while serving in the military. The claimant has undergone two surgeries since his compensable injury, which has resulted in him being assessed with a 20% anatomical impairment to the body as a whole which is attributable to his compensable back injury. On October 22, 2002, Dr. Clark formally pronounced maximum medical improvement for the claimant’s compensable back injury. According to the claimant, as of the date of the hearing, he continues to take prescription pain medication to address residual symptoms for his compensable back injury. The claimant also maintains that he is unable to drive or return to any gainful employment due to his back injury. We agree with the administrative law judge’s finding that no weight should be placed on the FCE that was performed on June 13, 2002 (some four years ago and prior to his second surgery) wherein the claimant was found to be able to perform heavy work. However, the record does not demonstrate that any medical doctor has directed the claimant to refrain from working or driving in some light-duty work capacity, nor has any restriction been placed on him due to his compensable injury. In fact, the claimant holds a valid CDL, and the medical evidence of record shows that from October 31, 2002 until August 24, 2005 (almost three years), he did not seek any treatment for any residual back symptoms. The claimant admits that he has not sought other suitable employment since he last worked for the respondent, and further admits that he is not seeking employment, as he has applied for Social Security Disability benefits and been approved for Veterans benefits. We find that the claimant’s lack of motivation in pursuing other suitable work substantially impedes his future earning capacity. Moreover, there is no probative evidence before the Commission demonstrating that the claimant is precluded from returning to gainful employment as a truck driver, diesel mechanic, welding or running a cutting torch.
Therefore, when we consider the claimant’s age, education, work experience, anatomical impairment rating of 20% to the body as a whole, residual symptoms, and because of his lack of motivation to return to work, the Full Commission finds that the claimant is only entitled to a 10% loss in wage earning capacity.
Based on our de novo review of the entire record, the Full Commission affirms, as modified, the decision of the administrative law judge finding that the claimant is entitled to a 70% wage-loss disability. Instead, the Full Commission finds that the claimant has proven that he is entitled to a 10% loss in wage earning capacity in addition to his 20% permanent anatomical impairment.
All accrued benefits shall be paid in 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. 2002)
Since the claimant’s injury occurred prior to July 1, 2001, the claimant’s attorney’s fee is governed by the provisions of Ark. Code Ann. § 11-9-715 as it existed prior to the amendments of Act 1281 of 2001. Compare Ark. Ann. § 11-9-715 (Repl. 1996) with Ark. Code Ann. § 11-9-715(Repl. 2002). For prevailing in part on this appeal, the claimant’s attorney is entitled to an additional fee of two-hundred fifty dollars ($250), as provided by Ark. Code Ann. § 11-9-715(b) (Repl. 1996).
IT IS SO ORDERED.
_______________________________ OLAN W. REEVES, Chairman
_______________________________ KAREN H. McKINNEY, Commissioner
Commissioner Turner dissents.