CLAIM NO. D912791
JEANNIE BAUGUS, EMPLOYEE, CLAIMANT v. BORG-WARNER AUTOMOTIVE, EMPLOYER, RESPONDENT, and CNA INSURANCE CO., CARRIER, RESPONDENT
Before the Arkansas Workers’ Compensation Commission
OPINION FILED OCTOBER 3, 1994
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by MARY LILE BROADWAY, Attorney at Law, Paragould, Arkansas.
Respondent represented by TODD WILLIAMS, Attorney at Law, Jonesboro, Arkansas.
Decision of Administrative Law Judge: Affirmed in part; reversed in part.
[1] OPINION AND ORDER
[2] This matter comes on for review by the Full Commission from the decision of an Administrative Law Judge filed on February 24, 1994 in which it was determined that claimant has proven by a preponderance of the credible evidence that she is entitled to additional temporary total disability benefits from August 4, 1990 through April 23, 1991 and from April 23, 1991 through February 6, 1992 and that claimant is permanently and totally disabled.
[3] After carefully conducting a de novo review of the entire record, we find that claimant has shown by a preponderance of the credible evidence that she remained in her healing period and was temporarily and totally disabled from October 4, 1990 through April 23, 1991, and from April 23, 1991 through February 6, 1992. Therefore, we affirm this portion of the Administrative Law Judge’s decision. However, we find that claimant has failed to prove by a preponderance of the credible evidence that she is permanently and totally disabled as a result of her compensable right hand injury. Therefore, we reverse this portion of the Administrative Law Judge’s decision.
[4] A preponderance of the credible evidence shows that claimant remained in her healing period and was temporarily and totally disabled from October 4, 1990 through April 23, 1991 and from April 23, 1991 through February 6, 1992. Claimant’s testimony, the medical records, and other evidence presented at the hearing show that claimant was continuing to receive medical treatment until her underlying condition reached maximum medical improvement on February 6, 1992 when she was released by Dr. LaCour. During these time periods, claimant was undergoing conservative care and physical therapy to strengthen her right hand. Also, claimant had been diagnosed with reflex sympathetic dystrophy and was also undergoing steroid treatment to help alleviate the symptoms of said condition. The additional treatment was necessary to increase claimant’s strength in her right hand and to help alleviate her symptoms of reflex sympathetic dystrophy. We find that claimant has proven by a preponderance of the credible evidence that she is entitled to the aforementioned additional temporary total disability benefits.
[5] Claimant contends that she is permanently and totally disabled as a result of her right wrist and hand injury. It was stipulated that claimant lost 100% use of her right hand. However, a review of the evidence does not indicate that claimant is permanently and totally disabled. In fact, after reviewing the entire record, it is clear that claimant is not permanently and totally disabled. Therefore, we reverse this portion of the Administrative Law Judge’s decision.
[6] Claimant is relatively young, 39 years old. She graduated from high school, is married and is the mother of two. She has a 20 year work history predominantly in manual labor. However, claimant did at one time own her own grocery store. Although claimant testified that she is unable to work, no physician has classified her as permanently and totally disabled. Several physicians have stated that claimant’s injury precludes her performing some tasks. Yet, no one maintains she is unable to participate in gainful employment. In fact, several of claimant’s treating physicians indicate that claimant should be able to return to her daily activities albeit with restriction.
[7] Claimant underwent a functional capacity evaluation. The occupational therapist, Paul S. Cooper, was of the opinion that claimant was a viable candidate for returning to the work force. Claimant also underwent a work hardening program at Northeast Arkansas Rehabilitation Hospital. The work hardening session documents are significant in that claimant continues to report that her right hand frequently swells during strenuous activities. However, claimant’s therapist was unable to note any swelling even though he was watching for such symptoms. Additionally, claimant was given a Valpar #8 test. This test evaluates claimant’s ability to perform repetitive motion of the bilateral upper extremities by performing timed assembly. The first time claimant took the test she performed in the 90th percentile; the second time, she performed in the 100th percentile. Additionally, these reports indicate that claimant offered submaximal effort. Again, it was noted that claimant had increased complaints of pain and swelling, although no swelling was noted.
[8] Claimant appears to be unmotivated to return to the work force. She has attempted babysitting but was of the opinion that her “nerves could not take it”. Claimant’s right hand injury did not preclude her from performing this job. Claimant also testified that she attempted to chop cotton and that she applied for work at five retail stores. However, claimant was offered a job at respondent’s as a security guard. Claimant refused this job without even attempting it. Although she testified that Dr. LaCour recommended that she not try the job, Dr. LaCour’s medical records do not corroborate her testimony. Additionally, claimant has taken no action regarding vocational rehabilitation since 1991. In fact, it appears that of all the retail businesses she talked to, she did not discuss with them making accommodations for her limitations. The aforementioned reflects claimant’s lack of desire to return to the work force.
[9] Additionally, it should be noted that two physicians have recommended that claimant undergo nerve block treatments for treatment of her reflex sympathetic dystrophy. Claimant’s refusal to submit to these advised procedures can be and was taken into consideration.
[10] In light of claimant’s relatively young age, past work experience, her medical condition, the rejection of employment at respondent’s, the rejection of recommended medical treatment, and her apparent lack of motivation to return to work, a preponderance of the credible evidence does not show that claimant is permanently and totally disabled. Therefore, we reverse this portion of the Administrative Law Judge’s decision.
[11] IT IS SO ORDERED.
JAMES W. DANIEL, Chairman ALLYN C. TATUM, Commissioner
[12] Commissioner Humphrey dissents.
