CLAIM NO. E119672
Before the Arkansas Workers’ Compensation Commission
OPINION FILED MAY 12, 1995
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE MARC I. BARETZ, Attorney at Law, West Memphis, Arkansas.
Respondents represented by the HONORABLE WILLIAM C. FRYE, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed as modified.
[1] OPINION AND ORDER
[2] The claimant and the respondents appeal an opinion and order filed by the administrative law judge on September 15, 1995. In that opinion and order, the administrative law judge found that the claimant is entitled to permanent partial disability compensation in an amount equal to 30% to the body as a whole, with 15% representing permanent physical impairment and 15% representing additional impairment to his earning capacity.
[6] Also, in a report dated December 9, 1991, Dr. Barrett-Tuck described the results of a CT scan as follows:Exam of the cervical area reveals point tenderness at the medial scapular border on the left. ROM of the cervical spine is mildly limited.
Motor testing shows DTR’s to be slightly decreased in the left biceps and brachioradialis as well as a slight decrease in the left triceps compared to the right. Strength is limited somewhat by pain.
[7] Due to the possible herniated nucleus pulposus suggested by this study, Dr. Barrett-Tuck performed a cervical myelogram with a post myelogram CT scan on December 18, 1991. She described the results of these tests as follows:Review of the CT scan of the cervical spine shows diffuse osteophytosis at C5-C6 with disk material centrally and to the left of midline particularly posterolaterally on the left suggesting herniation. The C6-C7 area is not well seen due to shoulder artifacts.
[8] Despite these findings, Dr. Barrett-Tuck and the claimant opted not to schedule surgery. The claimant returned to Dr. Barrett-Tuck on February 4, 1992, and she indicated that he had experienced progressive improvement of his symptoms, although he was not pain free. Nevertheless, Dr. Barrett-Tuck released the claimant to return to work. Her report does not indicate that she imposed any restrictions on the claimant at that time. However, in deposition testimony, she indicated that she generally advises patients to avoid extremely heavy lifting when she releases a patient to return to work. [9] The claimant did return to work for the respondent employer performing the same duties as he performed before the injury. However, he testified that he continued to experience continuous pain in his neck, shoulders, and arms. The claimant was paid on a commission basis, and he testified that he was not able to perform as much work as before the injury because of his physical restrictions and due to the fact that he had to be more cautious about lifting. Ms. Cindy Northcup, warranty administrator for the respondent employer, testified that the respondent employer tried to provide work within the claimant’s physical restrictions by advising him not to do anything he felt he could not do. In addition, she testified that other mechanics, the service manager, and the employee who did oil changes assisted the claimant with his lifting at times. The claimant admitted that he obtained assistance from the other mechanics and the oil change employee at times. However, he also testified that this was difficult because the other mechanics also worked on a commission basis, so assisting him delayed them in completing their work and reduced their earnings to some extent. He also testified that utilizing the assistance of the oil change employee caused problems because he had to wait for that employee to finish the jobs he was working on, which delayed the claimant in completing his work. [10] Due to these problems, the claimant voluntarily terminated his employment with the respondent employer and started working for Tommy Bain at Farmer’s Tire Mart as a mechanic. Mr. Bain paid the claimant a straight salary, and the claimant thought this work would be easier. However, the claimant continued to experience physical problems as a result of his work with Mr. Bain, and he ultimately terminated his employment. Mr. Bain testified that the claimant appeared to be in pain much of the time that he was working, and he testified that his work production decreased significantly during the day. He also testified that the claimant’s physical condition appeared to worsen during the time he worked at Farmer’s Tire Mart. Based on his observations of the claimant and his experience as a mechanic, Mr. Bain opined that the claimant was unable to continue working as a mechanic. [11] The claimant subsequently went to work for his brother at the Red Barn Sports Center in West Memphis. His brother owns the store, and the claimant is the manager. His duties include selling bait and sports supplies such as guns, ammunition, and fishing equipment. He also repairs fishing reels, and he has some responsibility for the inventory. The claimant and his brother both testified that they hired an employee to help the claimant with lifting, and both indicated that this employee would not be needed if the claimant was physically capable of lifting. However, the claimant’s brother admitted that he has back problems which have required surgery and that the employee is also needed due to his restrictions. Apparently, the additional employee is the claimant’s son. The claimant’s brother testified that the claimant frequently appeared to be in pain and that he had to allow him to lie down for this reason. [12] Dr. Barrett-Tuck has continued to follow the claimant. At one point, she indicated that the eventual need for surgery was likely due to the claimant’s radicular symptoms. However, she ultimately got the impression from the claimant that his major problem involved his neck, and not the radicular symptoms, and she opined that neck surgery would not be as helpful as she previously hoped due to the severity of the neck pain described by the claimant. Also, Dr. Barrett-Tuck’s later reports indicate that the claimant was neurologically intact. In a report dated January 17, 1994, Dr. Barrett-Tuck opined that the claimant sustained a 6% permanent physical impairment to the body as a whole as a result of his injury. In this report and in her deposition testimony, Dr. Barrett-Tuck stated that this rating was based on the standards found in the American Medical Association’s Guides to the Evaluation of PermanentImpairment, third edition, for an unoperated disc lesion with six months continued pain. However, in response to a letter from the claimant’s attorney, Dr. Barrett-Tuck increased the rating to 15% to the body as a whole in a report dated February 24, 1994. [13] At the request of the respondents, the claimant was also evaluated by Dr. Jim Moore, a neurosurgeon, on January 24, 1994. Dr. Moore described his physical findings as follows:Cervical myelogram showed herniated nucleus pulposus at C5-6 with root cut off on the left at C5-6. There were lesser root defects at C4-5 and C6-7 on the left and at C5-6 on the right. Post myelogram CT scan showed a ridge of osteophytes at C5-6 with a herniated nucleus pulposus, small and eccentric to the left. There was foraminal stenosis on the left at C6-7 and to a lesser degree at C5-6.
[14] Based on these findings and on “the changes described on the myelogram and CT” scan, Dr. Moore opined that the claimant sustained a 15% permanent physical impairment as a result of the compensable injury. Dr. Reynolds has also opined that the claimant sustained a 15% permanent impairment, although he does not describe the basis of this rating. [15] Injured workers bear the burden of proving that they are entitled to an award for a permanent physical impairment. Therefore, when considering claims for permanent physical impairments, the Commission must impartially weigh all of the evidence in the record to determine whether the preponderance of the evidence establishes that the worker sustained a permanent physical impairment as a result of a compensable injury. Consequently, an injured worker must prove that the work-related injury resulted in, or worsened, a permanent anatomical, physiological, or psychological condition which limits the ability of the worker to effectively use part of the body or the body as a whole. Moreover, it is the duty of this Commission to determine whether any permanent anatomical impairment resulted from the injury, and, if we determine that such an impairment did occur, we have a duty to determine the precise degree of anatomical loss of use.Johnson v. General Dynamics, 46 Ark. App. 188, 878 S.W.2d 411 (1994). [16] In the present claim, we find that the preponderance of the evidence establishes that the claimant sustained a 6% permanent physical impairment to the body as a whole. With regard to the 15% rating assigned by Dr. Reynolds, we note that he did not provide any basis for his opinion, and we find that the opinion is entitled to little weight, if any. In addition, we find that the 15% rating assigned by Dr. Barrett-Tuck is inappropriately based, at least in part, on wage loss factors. In this regard, Dr. Barrett-Tuck stated that she based the rating, in part, on “the degree to which it has affected his livelihood.” In addition, we find that Dr. Barrett-Tuck and Dr. Moore both based their ratings, at least in part, on the misconception that the claimant had never experienced any problems like he experienced after the 1991 injury. In this regard, Dr. Barrett-Tuck made the following comments:. . . I do not see any evidence of atrophy, atony or fasciculations in any muscle groups. Hand grasps are okay and are symmetrical. The forearms bulk up nicely, but the left biceps reflex is not as well elicited as on the right and both are somewhat depressed comparing the triceps. Sensory patterns are preserved to various modalities including temperature. Neck range is restricted about 50% in all modalities and there is tenderness in the suboccipital regions, right and left.
[17] Likewise, Dr. Moore made the following comments:. . . Certainly he does have preexisting condition, but with a new injury, we call that an exacerbation of a pre-existing condition because from the information that I had, the history I took from Mr. Black was that he had not had any prior neck problems; therefore, that additional rating, I think was appropriate to add as an exacerbation of a pre-existing condition. . . .
[18] However, the medical evidence suggests that the claimant has experienced similar problems in the past. In fact, the medical evidence indicates that the claimant sustained a work-related jury in 1983 that was almost identical to the injury involved in this claim and which resulted in symptoms which were almost identical to the symptoms he has experienced as a result of the injury involved in this claim. In this regard, a report by Dr. Ramon Lopez dated August 15, 1983 contains the following:There does not appear to be anything in the past history that would suggest any problems that could be related to the current situation. He did traumatize his head in 1990 at which time some films were obtained of the cervical showing some mild degenerative changes.
[19] Ultimately thoracic outlet syndrome was diagnosed, apparently based solely on a positive response to the Adson’s maneuver. In any event, Dr. John Allen performed a cervical rib resection on September 1, 1983, to decompress the thoracic outlet. Curiously, despite the similarity of that injury and resulting symptoms to the injury and symptoms involved in the present claim, the claimant didn’t mention these past problems or the surgery to any of his medical care providers. This is especially curious in light of the fact that at least Dr. Barrett-Tuck specifically questioned him about prior surgeries. [20] The medical evidence indicates that the claimant again sought medical treatment on December 18, 1986, for complaints of shoulder pain caused by a work-related injury, and a left shoulder strain was diagnosed at that time. In addition, the claimant suffered a work-related scalp laceration on February 19, 1987, and, although this report is difficult to read, it appears to refer to spasms in the claimant’s neck. The claimant sustained another scalp laceration on October 10, 1990, and the emergency room report states that the claimant was also complaining of neck pain at that time. X-rays taken at that time revealed degenerative changes which are almost identical to the changes revealed in the x-rays taken after the 1991, injury. Moreover, the x-ray report suggests that there might be some C-6 nerve root involvement, although this could not be determined by a plain x-ray. [21] Consequently, we find that the 15% impairment ratings assigned by Dr. Barrett-Tuck and Dr. Moore are based on improper and erroneous information, and we find that the weight to be given to these ratings is accordingly diminished. Moreover, we find that the 6% impairment rating initially assigned by Dr. Barrett-Tuck is more in accord with the nature of the injury sustained by the claimant. As discussed, diagnostic studies have shown that the claimant suffers from a significant degree of degenerative changes as well as the herniated nucleus pulposus at C5-6. Moreover, although the evidence does not support a conclusion that the claimant had no problems with his neck prior to this injury, the evidence does indicate that the compensable injury worsened the claimant’s underlying physical condition. Although these diagnostic studies revealed a herniated nucleus pulposus with nerve root impingement, the claimant did not complain of significant radicular symptoms or demonstrate a significant neurological deficit after his condition stabilized. We also note that Dr. Barrett-Tuck’s 6% rating was based on the following section of the Guidesto the Evaluation of Permanent Impairment pertaining to intervertebral disc or other soft tissue lesions:This is a 43 year old white male who injured his neck while lifting a heavy drum that slipped and caught all of the weight on the left arm. This happened approximately 5 to 6 weeks ago. He had some initial improvement being able to go back to work and received no treatment. In the last three weeks, however, the patient has had increasing symptoms of pain in the left side of the neck and with certain activities such as elevating his left arm and crossing the arm in front he gets a tingling and numbness of the first and second digits. The patient has been admitted and has been started on physical therapy modalities with only minimal improvement. Examination shows a patient that does not appear to be in any significant distress. He has the following ranges of motion of the cervical spine: forward flexion 50 degrees, extension 20 degrees, lateral bending 40 degrees, and rotation 60 degrees bilaterally. There was no significant pain on compression or traction of the cervical spine. The biceps and brachial radialis reflectors were decreased on the left side. The patient had normal grip and normal reflexes on the right and there was hypothesia of the first and second digits. The patient has a good bouncing radial pulse, however, the pulse can almost be totally obliterated by abduction and external rotation and elevation of the left arm. X-rays were unremarkable except for cervical ribs.
I feel that this patient may well have cervical disc problem, but more likely he is having problems because of thoracic outlet syndrome, secondary to cervical ribs. . . .
[22] A.M.A., Guides to the Evaluation of Permanent Impairment,Unoperated with medically documented injury and a minimum of six months of medically documented pain, recurrent muscle spasm or rigidity associated with moderate to severe degenerative changes on structural tests, including unoperated herniated nucleus pulposus, with or without radiculopathy.
third edition, at page 49, Table 49, II.C. Consequently, considering all of the evidence pertaining to the permanent physical impairment sustained by the claimant, we find that he sustained a 6% permanent physical impairment to the body as a whole. [23] We also find that the claimant sustained a 9% impairment to his earning capacity in excess of this 6% permanent physical impairment. When determining the degree of permanent disability sustained by an injured worker, the Commission must consider the degree to which the worker’s future wage earning capacity is impaired. In addition to medical evidence demonstrating the degree to which the worker’s anatomical disabilities impair his earning capacity, the Commission must also consider other factors, such as the worker’s age, education, work experience, and any other matters which may affect the worker’s future earning capacity, including the degree of pain experienced by the worker. Ark. Code Ann. § 11-9-522 (1987); Tiller v.Sears, 27 Ark. App. 159, 767 S.W.2d 544 (1989). In considering the factors which may affect an employee’s future earning capacity, we may consider the claimant’s motivation to return to work, since a lack of interest or a negative attitude impedes our assessment of the claimant’s loss of earning capacity. City of Fayetteville v. Guess,10 Ark. App. 313, 663 S.W.2d 946 (1984); Oller v. ChampionParts 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). [24] Initially, we find that the provisions of Ark. Code Ann. § 11-9-522 (b) (Cumm. Supp. 1993) do not preclude an award in this claim. In this regard, Ark. Code Ann. § 11-9-522
(b) provides the following:
[25] However, respondents “have the burden of proving the employee’s employment, or the employee’s receipt of a bona fide offer to be employed, at wages equal to or greater than his average weekly wage at the time of the accident.” Ark. Code Ann. § 11-9-522 (c)(1). [26] In the present claim, the respondents allowed the claimant to return to his previous position as a mechanic. However, in light of the claimant’s physical condition, we find that the claimant’s continued employment in that position was not reasonably obtainable. Therefore, we find that Ark. Code Ann. § 11-9-522 (b) does not bar an award of permanent disability compensation in excess of the extent of permanent physical impairment established by the medical evidence. [27] With regard to the factors affecting the claimant’s earning capacity, the claimant was 54 years old at the time of the hearing. He completed the ninth grade in school, and he obtained his G.E.D. through the military. He served in the military for three years as a supply officer. This provided training in taking inventory and in performing duties necessary to complete paper work. He has an extensive work history subsequent to his service in the military, but this experience primarily involves jobs as a truck driver and as a mechanic. He has also been employed in the past as a store manager for Mohawk Rubber Company, and this employment required him to open the store, schedule workers, and order supplies. He is performing similar duties for his brother in his current employment. He attended a training program in air conditioning repair, which was provided by the respondents, but he has not received any special education or training otherwise. He is satisfied with his current job, so he has not considered vocational rehabilitation. As discussed, the evidence indicates that the claimant has experienced physical problems as a result of the compensable injury which have limited activities to some extent. Likewise, he has not sought any other employment. [28] In short, although the claimant is an older worker with somewhat limited education, his past and current employment indicates that he has skills which are transferrable to a number of jobs within his physical limitations. Furthermore, while the evidence indicates that his physical activities are somewhat limited by the compensable injury, the nature of the condition established by the medical evidence does not indicate that he is seriously precluded from engaging in most productive activities, so long as he is cautious of extremely heavy lifting. In addition, we note that our ability to assess the claimant’s earning capacity is impeded because he has not sought other employment or pursued vocational rehabilitation due to his satisfaction with working for his brother. In this regard, we note that he is earning as much working for his brother as he has earned in most of his previous employments. Consequently, after considering all relevant factors, we find that he sustained a 9% impairment to his earning capacity in excess of the 6% permanent physical impairment established by the medical evidence. [29] Accordingly, based on our de novo review of the entire record, and for the reasons discussed herein, we find that the claimant proved by a preponderance of the evidence that he is entitled to permanent partial disability compensation in an amount equal to 15% to the body as a whole, with 6% representing permanent physical impairment and 9% representing additional impairment of his earning capacity. Therefore, we find that the administrative law judge’s decision must be affirmed as modified herein. [30] 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(b) In considering claims for permanent partial disability benefits in excess of the employee’s percentage of permanent physical impairment, the commission may take into account, in addition to the percentage of permanent physical impairment, such factors as the employee’s age, education, work experience, and other matters reasonably expected to affect his future earning capacity. However, so long as an employee, subsequent to his injury, has returned to work, has obtained other employment, or has a bona fide and reasonably obtainable offer to be employed at wages equal to or greater than his average weekly wage at the time of the accident, he shall not be entitled to permanent partial disability benefits in excess of the percentage of permanent physical impairment established by a preponderance of the medical testimony and evidence. [Emphasis added].
(1987). For prevailing in part 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 (b) (1987). [31] IT IS SO ORDERED.
JAMES DANIEL, Chairman
[32] Commissioner Tatum concurs. [33] Commissioner Humphrey dissents.