CLAIM NO. E217602
Before the Arkansas Workers’ Compensation Commission
OPINION JUNE 17, 1997
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE RONALD McCANN, Attorney at Law, Fayetteville, Arkansas.
Respondents represented by the HONORABLE E. DIANE GRAHAM, Attorney at Law, Fort Smith, Arkansas.
Decision of Administrative Law Judge: Reversed.
[1] OPINION AND ORDER
[2] The claimant appeals an opinion and order filed by the administrative law judge on August 8, 1996. In that opinion and order, the administrative law judge found that the claimant’s claim for wage loss disability in excess of the claimant’s 15% anatomical impairment is barred under the provisions of Ark. Code Ann. § 11-9-522 (b) (1987). After conducting a de novo review of the entire record, we find that the respondents failed to prove by a preponderance of the evidence that the claimant’s claim for permanent disability benefits in excess of her 15% anatomical impairment is barred under the provisions of Ark. Code Ann. § 11-9-522 (b) (1987). Therefore, we find that the administrative law judge’s decision must be reversed. In addition, we find that the claimant sustained a seven and one-half percent (7 1/2%) permanent impairment to her wage earning capacity in excess of the 15% permanent anatomical impairment established by the medical evidence. However, we also find that the respondents are entitled to a credit against this award for prior overpayment of indemnity benefits equal to a one percent (1%) impairment rated to the body as a whole.
(1984); Oller v. Champion Parts Rebuilders, 5 Ark. App. 307, 635 S.W.2d 276 (1982). [4] At the time of the hearing, the claimant was 43 years old. The claimant has a high school diploma, and the claimant attended Vo-Tech school in the 1970’s to learn general office skills. The claimant testified that she only utilized her office training for only a short period in her work history. The majority of the claimant’s work experience has been in a factory environment. The claimant began working for the respondent employer in a factory environment in 1982. The claimant has worked many of the different positions required in the respondent’s production of parking meters. [5] On September 14, 1992, the claimant sustained admittedly compensable injuries to her lower back and her neck while attempting to catch a parking meter that slipped while she was attempting to load the meter in a box. A lumbar MRI performed on October 13, 1992, indicated disc bulging at both the L4-5 and L5-S1 levels of the claimant’s lower back, but without focal disc herniation at either level. A cervical MRI performed on December 2, 1992, also indicated disc bulging at both the C4-5 and C5-6 levels of the claimant’s neck, with a small left-sided herniated nucleus pulposus at the C4-5 level. [6] On December 11, 1992, Dr. Stevenson Flannigan, a neurosurgeon, ascertained that the claimant is not a surgical candidate for her low back condition or for her neck condition. However, the claimant has received various modalities of conservative care for her reported persistent neck and low back symptoms. [7] The medical record indicates that various physicians released the claimant to work with restrictions at various times between 1993 and 1995. The claimant apparently returned to work for the respondents for the first time following her injury in approximately early February of 1993. Thereafter, the claimant reported to Dr. Curtis Schreiber, a neurologist, that she developed headaches radiating from her neck in the summer of 1993. In addition, the claimant indicated that the headaches and soreness persisted during a 10 week lay-off from work in early 1994, although other symptoms moderately improved during the lay-off. Shortly after returning to work in March of 1994, the claimant reported a worsening of her neck and low back symptoms. [8] Ms. Frances Thomas, the human resources manager for the respondents, testified that the claimant was again laid off in December of 1994. The claimant was recalled to work for two very brief periods in November and December of 1995. [9] In addition to her work for the respondents, the claimant testified that she worked at a department store between June 10, 1995, and Labor Day weekend of 1995. The claimant testified that she tried working in various departments at the store but felt that bending exacerbated her lower back symptoms, so she terminated from the department store. The claimant testified that she also worked 4 days as a cashier at a gas station and one day operating a lathe in a wood shop. The claimant testified that her symptoms prevented her from working in either one of these jobs as well. [10] On February 19, 1993, Dr. Flannigan assigned the claimant an 8% permanent anatomical impairment for her lower back condition and an 8% anatomical impairment for her neck condition. In a report dated August 14, 1995, Dr. Alice Martinson, an orthopedic surgeon, indicated that she agreed with Dr. Flannigan’s rating, but noted that the two 8% ratings, when combined pursuant to the AMA Guides equate to only a 15% impairment rating to the body as a whole. In a report dated January 31, 1995, Dr. Tom Langston concurred with Dr. Flannigan’s rating. In addition, Dr. Langston opined that, based on the claimant’s persistent complaints during the 3 week period following her December 1994, layoff, the claimant would continue to hurt regardless of whether or not she continued to work. [11] The report from a functional capacity evaluation performed in January of 1995 indicates that the claimant performed with maximum effort during testing. In addition, that report indicates that the claimant is not subject to any significant physical restrictions (except to the extent that the claimant’s chronic pain may limit her job performance). [12] In short, the record establishes that the claimant is a relatively young woman with a high school education. In addition, the medical evidence establishes that the claimant has experienced relatively minor physical restrictions as a result of her low back and neck injuries, although the claimant will experience some degree of chronic pain as a result of these injuries. The claimant’s primary work experience has been in a relatively physically demanding factory setting. However, the claimant clearly has the motivation, intelligence, and education to pursue further employment in a more sedentary setting should she choose to do so, although the claimant has not yet identified a job which she feels is compatible with her pain limitations on physical exertion. After considering the claimant’s age, education, work experience, and all other relevant factors, we find that the claimant sustained a seven and one-half percent (7 1/2%) permanent impairment to her wage earning capacity in excess of the 15% permanent anatomical impairment established by the medical evidence. [13] In reaching our decision, we note that the administrative law judge denied the claimant’s claim for wage loss benefits on the grounds that the respondents have made a bona fide offer of additional employment to the claimant, within the claimant’s functional limitations, earning greater wages than she was earning at the time of her compensable injury. See Ark. Code Ann. § 11-9-522 (b). However, we find that the respondents failed to prove by a preponderance of the evidence that the claimant had received a “bona fide offer of employment” from the respondent employer as of the date of the hearing held on May 21, 1996. [14] As discussed, the record indicates that the claimant was laid off on December 30, 1994. The claimant was recalled to work for a brief period in November of 1995 and for another brief period in December of 1995, but the claimant had not been recalled to work in any position between December of 1995 and the hearing held on May 21, 1996. [15] Ms. Thomas, the respondent’s human resource manager, testified at the hearing that the respondents are unionized and that employees are scheduled on a weekly basis based on production demands. Employees are recalled on a seniority basis. Ms. Thomas testified that, as of the date of the hearing, the claimant has “classification seniority” in the “break-off classification;” that the claimant would be the next employee to be recalled for that position; and that the break-off position would be within the claimant’s physical restrictions and would compensate the claimant at a greater hourly wage than she was earning at the time of her compensable injury. [16] We find that Ms. Thomas’ testimony establishes, atmost, that the claimant might receive an offer of employment at some future date after the hearing, if and when the production demands at the respondent’s plant requires the recall of a break-off operator. Moreover, we note that this offer of employment would be contingent on future production demands (if any) for the type of component produced on the “break off” machine. However, the record establishes that the respondents had not recalled the claimant to any form of work since December of 1995. Therefore, we find that the respondents failed to prove by a preponderance of the evidence that they provided the claimant a “bona fide offer of employment,” within the meaning of Ark. Code Ann. § 11-9-522
(b) (1987), prior to the date of the hearing held on May 21, 1996. Consequently, we find that the respondents failed to prove by a preponderance of the evidence that the present claim for wage loss disability compensation is barred by Ark. Code Ann. § 11-9-522 (b) (1987). [17] The claimant has not appealed the 1% credit awarded by the administrative law judge for prior overpayment of indemnity benefits, and we note that Dr. Martinson was correct that the claimant’s two 8% impairments result in a 15% impairment to the body as a whole under the AMAGuidelines. Accordingly, we find that the respondents are entitled to a credit of 1% impairment rated to the body as a whole against the 7 1/2% permanent impairment awarded in this claim. In addition, we find that the claimant’s attorney is entitled to the maximum attorney’s fee pursuant to Ark. Code Ann. § 11-9-715 on the 6 1/2% rating to the body as a whole payable by the respondents as a result of this decision. [18] Finally, we note that on May 16, 1997, the claimant filed a petition for reconsideration of the administrative law judge’s determination that the claimant’s claim for disability benefits in excess of her permanent anatomical impairment is barred under Ark. Code Ann. § 11-9-522 (b). Because we find that the respondents failed to prove by a preponderance of the evidence presented at the hearing that the claimant’s claim for disability benefits is barred by the provisions of Ark. Code Ann. § 11-9-522 (b), we also find that the claimant’s May 16, 1997, motion seeking reversal of the administrative law judge’s decision on this issue is moot. [19] Therefore, after conducting a de novo review of the entire record, and for the reasons discussed herein, we find that the respondents failed to prove by a preponderance of the evidence that the claimant’s claim for permanent disability benefits in excess of her 15% permanent anatomical impairment is barred under the provisions of Ark. Code Ann. § 11-9-522 (b) (1987). Therefore, we find that the decision of the administrative law judge must be, and hereby is, reversed. In addition, we find that the claimant sustained a 7 1/2% permanent impairment to her wage earning capacity in excess of the 15% permanent anatomical impairment established by the medical evidence. We also find that the respondents are entitled to a credit equal to payments for a 1% permanent impairment rated to the body as a whole. In addition, we find that the claimant’s attorney is entitled to a maximum attorney’s fee on the 6 1/2% rating to the body as a whole payable by the respondents as a result of this decision. [20] All accrued benefits shall be paid in a 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. 1996). For prevailing on this appeal before the Full Commission, claimant’s attorney is hereby awarded an additional attorney’s fee in the amount of $250.00 in accordance with Ark. Code Ann. § 11-9-715 (Repl. 1996). [21] IT IS SO ORDERED.
ELDON F. COFFMAN, Chairman MIKE WILSON, Commissioner
[22] Commissioner Humphrey concurs in part and dissents in part.[23] CONCURRING AND DISSENTING OPINION
[24] I concur with the findings in the principal opinion that this claim for wage loss disability is not barred by the provisions of Ark. Code Ann. § 11-9-522 (b) (Repl. 1996) and that claimant’s petition for reconsideration is, therefore, moot. However, I must respectfully dissent from the award of benefits for a loss in earning capacity of only 7 1/2% to the body as a whole.