CLAIM NO. E309890
Before the Arkansas Workers’ Compensation Commission
OPINION FILED NOVEMBER 7, 1997
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE GENE E. McKISSIC, Attorney at Law, Pine Bluff, Arkansas.
Respondents represented by the HONORABLE MICHAEL R. MAYTON, Attorney at Law, West Memphis, Arkansas.
Decision of Administrative Law Judge: Affirmed as modified.
[1] OPINION AND ORDER
[2] The respondents appeal and the claimant cross appeals an opinion and order filed by the Administrative Law Judge on January 17, 1997. In that opinion and order, the Administrative Law Judge found that the claimant sustained a 30% impairment to his earning capacity in addition to the 10% permanent anatomical impairment established by the medical evidence. After conducting a de novo
review of the entire record, we find that the greater weight of the evidence establishes that the claimant sustained a 20% impairment to his earning capacity in excess of the 10% permanent anatomical impairment established by the medical evidence. Therefore, we find that the decision of the Administrative Law Judge must be affirmed as modified.
(1984); Oller v. Champion Parts Rebuilders, 5 Ark. App. 307, 635 S.W.2d 276 (1982). Likewise, although a claimant’s failure to participate in rehabilitation does not bar his claim, the failure may impede a full assessment of his wage earning loss by the Commission. Nicholas v. Hempstead County Memorial Hospital, 9 Ark. App. 261, 658 S.W.2d 408 (1983). [7] In the present case the claimant was 47 years old at the time of the hearing held on August 20, 1996. The claimant is a high school graduate and has approximately 3 years of post-secondary education. The claimant was enlisted in the Navy for a couple of years where he also received training as a mechanic working on small refrigerator motors. After being discharged from the military, the claimant worked in a grocery store for approximately 14 to 15 years. [8] The claimant later moved to Arkansas and worked for a period of approximately 2 1/2 years for C L Transmission. The claimant began working in the respondent’s hardware department in 1988. At the time of his injury on June 9, 1993, the claimant was employed as a commissioned salesman working on a part-time basis approximately 30 hours per week. In addition to his employment for the respondent, the claimant was also employed on a full-time basis at Tyson Foods on the night shift working approximately 40 hours per week until shortly prior to his June 9, 1993, injury. At the time of his injury, the claimant was in the process of securing a full-time night job at International Paper Company. [9] The claimant sustained an admittedly compensable injury to the L2-3 level of the spine as a result of a lifting incident on June 9, 1993. The claimant was initially seen at Jefferson Regional Medical Center on June 9, 1993, and Dr. P.B. Simpson, a neurosurgeon, performed a microdiscectomy surgery on the right side at the L2-3 level of the claimant’s spine on June 14, 1993. The claimant was discharged from the hospital on June 21, 1993, and was followed by Dr. Simpson for follow-up conservative care thereafter. Dr. Simpson prescribed exercise and medication during the claimant’s post-surgical treatment period. He kept the claimant in off-work status until October 25, 1993, when Dr. Simpson released the claimant to return on an as needed basis with a 10% permanent impairment rating to the body as a whole as a result of his L2-3 injury and surgery. According to Dr. Simpson’s office note from that date, a repeat MRI of the claimant’s post-surgical lumbar area failed to show any significant abnormality at that time on the right side at the L2-3 level although the claimant stated he still had some aches and pains in his back. According to Dr. Simpson’s note there was no evidence of any radiculopathy at that time. [10] Prior to Dr. Simpson’s release of the claimant, the claimant underwent a functional capacity evaluation at the Southeast Arkansas Rehabilitation Center on September 9, 1993. An examination of the claimant at that time notes, in part, moderate to severe muscle spasms in the left lumbar and sacral paravertebral structures. That evaluation found that the claimant’s work capabilities would be classified in the “light” category classification as defined by the United States Department of Labor. However, the evaluation summary indicates a number of inconsistencies related to the claimant’s effort and concludes that the functional capacity evaluation performed on September 9, 1993, was not a valid test because of the claimant’s inconsistent efforts. [11] The medical record indicates that the claimant was unhappy with the physical impairment rating assigned to him by Dr. Simpson and attempted to change physicians thereafter. When the Commission denied the claimant’s request for a change of physicians in a prior claim, the claimant presented to the VA Hospital and attempted to receive service related benefits for a closed head injury he received in the late 1960’s or early 1970’s while in the service. The claimant’s request was denied. Likewise the claimant has applied for Social Security Disability benefits and has been denied same. However, medical records from the Veterans Administration offered into evidence by the claimant indicate that the claimant has sustained a non-service connected permanent and total disabilities. [12] After considering the claimant’s relatively young age, education, work experience, and all other relevant factors, we find that the claimant failed to establish a prima facia case that he falls within the odd lot category, and we find that the claimant failed to prove by a preponderance of the evidence that he is permanently and totally disabled. Instead, we find that the greater weight of the evidence establishes that the claimant has sustained a 20% impairment to his earning capacity in addition to the 10% anatomical impairment established by the medical evidence. In reaching our decision, we note that the Department of Veteran Affairs has apparently determined the claimant to be permanently and totally disabled for purposes of their analysis. However, in this regard we also note that the claimant’s disability indicated by the Department of Veteran Affairs appears to relate to an abnormality in 1995 indicated at the L4-5 level of the claimant’s spine, and not due to any abnormality at the L2-3 level of the claimant’s spine where the claimant sustained his work-related injury. In reaching our decision, we also note that the claimant has acknowledged that he made no attempt to return to work after Dr. Simpson released the claimant in October of 1993. In addition, we find that the claimant’s invalid and inconsistent efforts in his September 9, 1993, functional capacity evaluation significantly impede our ability to assess the effect of his work-related injury on his earning capacity. Moreover, we note the claimant’s three years of post-secondary education and rather varied work experience from which we believe the claimant has transferrable job skills. Consequently, for the reasons discussed herein, we find that the claimant has sustained a 20% impairment to his wage earning capacity as a result of the work-related injury he sustained at the L2-3 level of the spine while working for the respondent. [13] In reaching our decision, we note that the respondents assert on appeal that the claimant’s claim for wage loss benefits is barred as a matter of law. In this regard, the respondents assert that the claimant received a bona fide offer of light-duty employment from the respondents and that the claimant’s claim for permanent disability benefits in excess of the anatomical impairment established by the medical evidence is barred under the provision of Ark. Code Ann. § 11-9-522(b). However, after conducting a de novo review of the entire record, and in particular of the testimony of Ms. Brenda Baker who was called to testify on behalf of the respondents, we find that the respondents have failed to establish that the claimant ever received any offer of employment from the respondent after June 9, 1993. Consequently, we find that the respondents failed to establish the claimant’s present claim for permanent disability benefits as barred under the provisions of Ark. Code Ann. § 11-9-522(b). [14] The claimant appears to assert on appeal that the claimant’s disc abnormality at the L4-5 level of the spine found by VA physicians in 1995 is somehow causally related to the claimant’s June 9, 1993, lifting incident. However, after conducting a denovo review of the entire record and in particular the medical records from Dr. Simpson and from the VA Hospital offered into evidence by the parties, we find that the claimant has failed to establish any causal connection between the abnormality indicated by the VA in 1995 at the L4-5 level of the spine and the claimant’s work-related incident in 1993. In reaching that conclusion, we note that Dr. Simpson’s MRI of the claimant’s lumbar spine performed in October of 1993, did not note any abnormality at the L4-5 level of the spine. In addition, we note that Dr. Simpson’s note from July 12, 1993, indicates that the claimant’s initial MRI indicated only a small protrusion of the disc at the L4-5 level on the left side and that the claimant was asymptomatic from that protrusion. [15] Therefore, after conducting a de novo review of the entire record, and for the reasons discussed herein, we find that the claimant sustained a 20% impairment to his earning capacity in excess of the 10% anatomical impairment established by the medical evidence. Therefore, we find the decision of the administrative law judge must be affirmed as modified. [16] 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). [17] IT IS SO ORDERED.
ELDON F. COFFMAN, Chairman
[18] Commissioner Wilson concurs. [19] Commissioner Humphrey dissents.