CLAIM NO. E605738
Before the Arkansas Workers’ Compensation Commission
OPINION FILED NOVEMBER 29, 1999
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by ZAN DAVIS, Attorney at Law, Little Rock, Arkansas.
Respondent represented by RICHARD S. SMITH, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed.
[1] OPINION AND ORDER[2] The claimant appeals a decision by the Administrative Law Judge finding that the claimant was entitled to wage loss disability benefits in the amount of 15% in addition to his permanent impairment of 10%. Based upon our de novo review of the record, we affirm the decision of the Administrative Law Judge. [3] The claimant was employed by the respondent as a tester of moisture meters in grain elevators. The claimant’s job duties required him to travel throughout the state to inspect the moisture meters in grain elevators. [4] On April 10, 1996, the claimant sustained an admittedly compensable back injury while lifting a five gallon can of water. After treatment by Dr. Hall and Dr. Dickens, Dr. Dickens performed surgery on the claimant on June 6, 1996. The claimant contends that he is permanently and totally disabled. The respondents contend that the claimant’s award of 15% by the Administrative Law Judge is appropriate. We agree with the respondents. [5] We find that the evidence does not support a finding of permanent and total disability. The claimant sustained an injury to that portion of his body which is not scheduled under the Act. Therefore, the claimant’s entitlement to permanent disability benefits is controlled by Ark. Code Ann. § 11-9-522. Permanent disability compensation is paid where the permanent effects of a work-related injury incapacitate the worker from earning the wages which he was receiving at the time of the injury. When making a determination of the degree of permanent disability sustained by an injured worker with an unscheduled injury, the Commission must consider medical evidence demonstrating the degree to which the worker’s anatomical disabilities impair his earning capacity, as well as other factors such as the worker’s age, education, work experience, and other matters which may reasonably be expected to affect the worker’s future earning capacity. Such other matters are motivation, post-injury income, credibility, and demeanor. 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). When it becomes evident that the worker’s underlying condition has become stable and that no further treatment will improve the 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 permanent and total disability. Minor v. Poinsett Lumber Manufacturing Co., 235 Ark. 195, 357 S.W.2d 504 (1962). [6] In considering the factors which may affect an employee’s future earning capacity, the Commission may consider the claimant’s motivation to return to work, since a lack of interest or negative attitude impedes the Commission’s assessment of the claimant’s loss of earning capacity. City Fayetteville v. Guess, 10 Ark. App. 313, 663 S.W.2d 946 (1984); Oller v. Champion PartsRebuilders, 5 Ark. App. 307, 635 S.W.2d 276 1982. [7] The claimant appears to have many health related problems that are non-work-related. However, the record is void of any medical records with respect to any heart, knee, arthritis, and diabetic problems that the claimant currently suffers from. A surveillance video taken shows the claimant engaging in a number of activities including operating a four-wheeler, operating a tractor and front end loader, lifting and moving a swing set, digging and raking dirt, using an axe/hammer type tool, and climbing off and on a tractor. The claimant testified that these activities caused him a great deal of pain the next day. However, the video tape from the next day shows the claimant driving around town, walking into and out of stores and the Post Office, and raking dirt again without any obvious signs of difficulty. The videotape clearly demonstrates that the claimant is capable of engaging in a wide range of normal, daily physical activities such as walking, standing, sitting, shopping, and driving a motor vehicle. [8] In addition, the vocational rehabilitation specialist hired by the respondents to evaluate the claimant was told by the claimant that he would not accept a position making less than $2,000 a month. It is obvious that the claimant lacks motivation to return to work. [9] When all of the evidence is considered, in our opinion, the claimant has failed to establish by a preponderance of the evidence that he is entitled to permanent and total disability benefits. However, after considering the claimant’s age and education, and all other relevant factors, we find that the claimant sustained a 15% impairment to his wage earning capacity in excess of his 10% anatomical impairment. Accordingly, we affirm the decision of the Administrative Law Judge. [10] IT IS SO ORDERED. [11] _______________________________
ELDON F. COFFMAN, Chairman
_______________________________
MIKE WILSON, Commissioner
[14] I must respectfully dissent from the majority opinion finding that claimant failed to prove that he is permanently and totally disabled. Therefore, I would reverse the finding of the Administrative Law Judge on this issue and award the requested benefits. [15] Claimant is 63 years old and has a GED. His work experience is as a truck driver. Claimant has worked for respondent for twenty years traveling throughout the state to inspect moisture meters in grain elevators. His job duties involved lifting equipment and meters weighing up to 60 pounds and prolonged periods sitting behind the wheel of his vehicle. [16] On April 10, 1996, claimant suffered a compensable back injury while lifting a five gallon can of water. He was treated by Dr. Hall, a general practitioner, and Dr. Dickins, a neurosurgeon. On June 6, 1996 surgery was performed to alleviate claimant’s back and bilateral leg pain. Claimant reports that since his surgery any physical activity forces him to return to Dr. Hall for injections to relieve pain. Claimant was released on March 18, 1997, with a 10% permanent impairment rating to the body as a whole. Claimant was left with physical restrictions of sitting no more than 30 minutes, walking no more than a quarter mile, no bending and lifting no more than 6 pounds. [17] Permanent total disability is defined as the “inability, because of compensable injury or occupational disease, to earn any meaningful wages in the same or other employment.” Ark. Code Ann. § 11-9-519(e)(1) (Supp. 1997). Claimant has the burden of proving by a preponderance of the evidence that the compensable injury has rendered him permanently and totally disabled. Ark. Code Ann. §11-9-519(e)(2) (Supp. 1997); Ark. Code Ann. § 11-9-705(a)(3) (Repl. 1996). Finally, Ark. Code Ann. § 11-9-102(5)(F)(ii) (a) and (b) (Supp. 1997) provide the following:
[18] Hatfield v. First Baptist Church of Fort Smith, Full Commission Opinion filed May 11, 1999, AWCC #320142. [19] In my opinion claimant has met the elements necessary to establish his entitlement to permanent and total disability benefits. Claimant is an older worker with a limited educational background. In addition, during claimant’s employment with respondent he did not develop any readily transferable job skills. When these factors are combined with the rather significant physical restrictions imposed by claimant’s injury it is apparent that his injury has effectively excluded him from resuming any meaningful employment. [20] After viewing the submitted video I have failed to find any activities inconsistent with claimant’s physical restrictions. The videotape reveals that claimant walks hesitantly. The videotape also shows us that over the course of two days claimant was able to spend a total of less than 30 minutes, including frequent breaks, spreading loose dirt with a garden rake and spade. The testimony establishes that claimant was able to endure this very limited level of exertion only after subjecting himself to injections of pain control medication. The tape also reveals that claimant managed to summon the strength to execute a total of four very light underhand swings with a splitting maul. I am unaware of any employer who would actually pay an employee for the level of exertion exhibited by claimant. As with most surveillance videos I note that it has been heavily edited by respondent and therefore it is of little probative value. [21] Based upon the compromised physical abilities of claimant and his limited job skills I conclude that we should reverse the opinion below and award claimant the requested permanent and total disability benefits. [22] _______________________________PAT WEST HUMPHREY, CommissionerPermanent benefits shall be awarded only upon a determination that the compensable injury was the major cause of the disability or impairment.
If any compensable injury combines with a preexisting disease or condition or the natural process of aging to cause or prolong disability or a need for treatment, permanent benefits shall be payable for the resultant condition only if the compensable injury is the major cause of the permanent disability or need for treatment.