CLAIM NO. F307539
Before the Arkansas Workers’ Compensation Commission
OPINION FILED DECEMBER 20, 2006
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE TERENCE C. JENSEN, Attorney at Law, Benton, Arkansas.
Respondents represented by the HONORABLE WILLIAM C. FRYE, Attorney at Law, Little Rock, Arkansas.
Decision of the administrative law judge: Reversed.
OPINION AND ORDER The respondent appeals and the claimant cross-appeals from anadministrative law judge’s opinion filed on August 11, 2006. Theadministrative law judge found that “As a result of his compensableinjury, the claimant has sustained permanent disability in the totalamount of 40%, consisting of his anatomical impairment of 9% to the bodyas a whole and 5% to the body as a whole, together with his wage lossdisability.”
After reviewing the entire record de novo, the Full Commission findsthat the claimant is precluded from receiving wage — loss disabilitypursuant to Ark. Code Ann.
§ 11-9-505(b)(3). We therefore reverse the decision of theadministrative law judge.
I. History
The claimant, age 50 (11/10/57), had worked for the respondent as amachinist. On May 3, 2003, the claimant sustained admittedly compensableinjuries to his neck and back when he slipped and fell on a wet floor,landing backwards. The respondent paid all appropriate medical benefits,temporary total disability compensation, and anatomical impairmentratings in the amount of 9% to the body as a whole for the claimant’sneck injury, and 5% to the body as a whole for his low back injury.
Although the respondent accepted the claimant’s neck and back injuriesas compensable and paid the aforementioned appropriate benefits, it hasresisted his claim for wage-loss disability benefits. Therefore, theclaimant has brought this action asserting his entitlement to thesebenefits.
The claimant underwent treatment for his compensable neck injury withDr. Scott Schlesinger, who performed surgery on the claimant’s cervicalspine on December 9, 2003. He also provided the claimant withconservative treatment for his back injury. Ultimately, Dr. Schlesingerassessed the claimant with the aforementioned anatomical impairmentratings for his compensable injuries.
On January 30, 2006, the claimant underwent an independent evaluationwith Dr. Scott Schlesinger to address recommendations for additionaltreatment. He noted that the claimant had persistent symptomatology inhis neck and back that had remained about the same. However, Dr.Schlesinger wrote, in pertinent part:
I see no reason for any further radiologic investigation. I see no reason for any further treatment. I don’t think Botox injections or any other injections are likely to be of a lasting benefit to Mr. Blake.
I think he has reached maximum medical improvement for his neck andback injuries in April 2005 and further treatment is not likely to be ofany benefit. I would state this with a reasonable degree of medicalcertainty. He has already applied for and I have encouraged him to seekhis Social Security Disability benefits. He does not feel there is anywork available for him in the category that he is restricted.
The claimant underwent a functional capacity evaluation on April 8,2005. The results of this evaluation indicated that the claimant gave areliable effort. The claimant demonstrated the ability to performmaterial handling activities at the medium level with an occasionallifting of up to 50 pounds. Prior to this, on April 14, 2004, theclaimant underwent a functional evaluation which indicated he couldperform light-medium physical demand work level. The evaluator notedthat the claimant had passed the validity criteria, which suggested goodeffort and valid results.
A hearing was held in this matter on May 15, 2006. During the hearing,Bob White, a vocational rehabilitation specialist, gave testimony duringthe hearing on behalf of the claimant. Mr. White testified that he hadinterviewed the claimant, reviewed his medical documents, reports, andthe deposition of Dr. Scott Schlesinger, along with his functionalcapacity evaluation. Mr. White stated that based on a currentcombination of factors, it would essentially be very difficult for theclaimant to meet the physical demands of either sedentary or light work,and in his opinion, vocational efforts are inappropriate because he doesnot believe they will work. Mr. White agreed that he was of the opinionthat the claimant was not a vocational rehabilitation candidate andcould not reenter the job market. Mr. White further agreed that his May11, 2006 letter accurately reflects his opinions. Specifically, in thisletter, he stated:
It is my opinion, based on review of the medical records and professional interview, in combination with Mr. Blakes [sic] education, age and work history, he cannot physically meet the demands of sedentary or light work and that vocational assistance will be unsuccessful and produce no results. I have no recommendations in this case.
The claimant also gave testimony during the hearing. The claimantadmitted to having injured his neck and back. The claimant testified hehas undergone surgery to his neck, but not for his back. According tothe claimant, he continues to have problems with his neck and back, ashe has pain in his neck and problems turning his head from side to side,along with tingling of the right arm.
The claimant admitted to returning to work for the respondent in 2004,and to having worked full days for only a couple of days. Thereafter,the claimant testified that he began working four-hour days due to hisphysical condition.
According to the claimant, he completed the 10th grade, beforedropping out of school, as he was in special classes and has problemsreading and is able to divide and multiply to a certain point. Theclaimant testified he had worked for the respondent 19 years.
On cross-examination, the claimant admitted he does not take anyprescription medication for his neck or back. The claimant agreed he wasplaced on layoff by the respondent in October of 2004 due torestructuring. At which point, he filed for unemployment benefits andbegan looking for work, primarily as a machinist or welder. He alsoadmitted to looking for work pursuant to a list provided to him by Ms.Naylor. The claimant testified he looked for work with the CoorsCompany, as they run lathe machines and deal with ceramic. He alsoadmitted to applying for work with Wal-Mart, while drawing unemploymentbenefits.
The claimant admitted that he did not look into retraining or jobplacement, which had been recommended to him. He further admitted he didnot ever check with a temporary service about a job as a machinist.
He admitted that prior to being laid off by the respondent, heperformed work on the grinding machine, as a knife tech, a mill job, andsoldering job duties. The claimant also agreed that he worked as asupervisor for the respondent for approximately three years, maybe fouryears, off and on, wherein he was required to order for the department,schedule work days, train new employees and do some light solderingwork.
According to the claimant, he had surgery on his neck in December of2003. The claimant admitted he is able to read and write to a point, andthat he missed his GED by three points back when he took it (years priorto his injury), but he has not tried to go back and take it again. Headmitted to meeting with Ms. Naylor, and being provided a list of jobsthat were available. The claimant testified:
Q. She [Ms. Naylor] had in here during the last meeting you had told her that you “were not interested in vocational assistance.” Do you remember telling her that?
A. About the GED or school, whatever you want to call it.
Q. Well, she had down, “Not interested in vocational assistance. If you change your mind, please contact me” Did you ever contact Ms. Naylor?
A. No.
Upon being questioned further as to what he did to assist Ms. Naylorin finding him a job, the claimant testified, “Nothing.”
The claimant essentially admitted he has not had treatment for hisback or neck since his release by Dr. Schlesinger in April of 2005. Theclaimant admitted he is treated for asthma and has applied for SocialSecurity Disability benefits, which is pending.
On redirect examination, the claimant testified that when he returnedto work for the respondent, he was working only four hours a day due tosymptoms in his left arm, back, and neck.
On recross examination, the claimant admitted that no doctor hasrestricted him to work only four hours a day. The claimant’s wife of twoyears, Sheila Blake, gave testimony. Mrs. Blake essentially testifiedthat the claimant is limited in his ability to walk and stand forprolonged periods, as he has “good days” and “bad days.” She also agreedthat the claimant has problems communicating, as he stutters, and isslow catching on to what is written. According to Mrs. Blake, on variousdays, the claimant contacted employers from the list of jobs madeavailable to him by Ms. Heather Nayor pursuant to the letter dated March30th.
Heather Naylor, a vocational specialist for the respondent gavetestimony during the hearing. Ms. Naylor testified that she reviewed theclaimant’s medical records, including his surgical history from hisfusion, as well as other physicians, including Drs. Safman and Moore, aswell as his two functional capacity evaluations. According to Ms.Naylor, it was her understanding that the 2005 functional capacityevaluation showed that the claimant was capable of performing work inthe medium capacity work demands. She admitted that all of theclaimant’s prior work has been in line with the recommendations of theFCE. Ms. Naylor testified she encouraged the claimant to obtain his GED,but it is not a necessity for getting a job as a machinist. However, shedid admit that based on her experience as a rehab counselor, obtainingyour GED does enhance your employability and more and more employersprefer and require that. According to Ms. Naylor, she asked the claimantif he would be interested in further services, and he stated that atthat time, he was not. She testified these services would have includedinterviewing skills, how to fill out applications, techniques on how toapproach employers, resume development, and identification of jobpossibilities for him. Ms. Naylor testified she issued her first reportto the claimant on February 10, 2005, wherein she indicated that she wasgoing to check on the GED status and possibly a labor market survey.According to Ms. Naylor, she issued a labor market survey identifyingjob possibilities for the claimant on March 30th. Ms. Naylor essentiallytestified that she did not follow-up with the claimant after thisbecause when she sent him the letter, he did not contact her asking forany further assistance and he had indicated during her meeting with himthat he was not interested in her services. She also admitted that sheissued a report on April 19th, indicating her goal for him, which was,”Return to the workforce on a full-time basis within the capabilitiesset forth by the FCE,” which was the same as the one set forth in theMarch of 2006 letter. Ms. Naylor agreed that under either functionalcapacity evaluation, the claimant would be able to return to work as amachinist, which would allow him to be employed at $16 an hour. Sheagreed that she would encourage the claimant to complete his GED, lookthrough the newspaper and find a job, register with the EmploymentSecurity office, as well as temporary agencies.
On April 6, 2006, Dr. Scott Schlesinger’s deposition was taken.According to Dr. Schlesinger, he began treating the claimant inSeptember of 2003 for his May 10, 2003 injury. He testified he performedsurgery on the claimant on December 9, 2003, in the form of an anteriorcervical decompression and fusion at C5-6. On March 1, 2004, heinstituted conservative care for the lumbar spine with epiduralinjections. Dr. Schlesinger admitted to declaring maximum medicalimprovement in April of 2005 and having him undergo an FCE evaluation,which assessed him as being able to return to a medium category of work.He also admitted to having assessed the claimant with a nine percentrating for the cervical spine, and a five percent rating for the lumbarspine. He testified that the claimant had some disk protrusions, thatwere not surgical in nature but believed to be related to his injury.According to Dr. Schlesinger, he released the claimant from care onApril 8, 2005, as he had nothing further medically to offer him at thattime, nor did he make any specific recommendations for treatment or anytype of referral. He testified he did not see the claimant again from aworkmen’s [sic] comp standpoint until January of 2006. At which point, aneurological examination was performed.
On cross examination, Dr. Schlesinger testified that when he saw theclaimant in January of 2006, he complained to him of neck and low backpain. He agreed that if the claimant is complaining of pain in his spinein both sitting and walking, it could be consistent with his injuries.Dr. Schlesinger also testified that complaints of dropping ormishandling objects with his hands could be attributable to old damageto his spinal cord, as well as various other complaints.
Prior to the hearing, a prehearing telephone conference was held inthis claim, and as a result, a Prehearing Order was entered in thismatter on March 27, 2006. The following stipulations were submitted bythe parties and accepted:
1). The employment relationship existed at all pertinent times.
2). Compensable injuries occurred to the claimant’s neck and low back on May 10, 2003.
3). An average weekly wage of $644.00.
4). The claimant’s neck injury required surgery, performed December 9, 2003, by Dr. Scott Schlesinger.
5). Permanent anatomical impairment of 9% to the body as a whole as a result of the neck injury.
6). Anatomical impairment of 5% to the body as a whole as a result of the claimant’s low back injury.
7). That the claimant reached the end of his healing period as to his back injury on or about April 5, 2004.
At the hearing, the parties limited the issue to be determined towage-loss disability. All other issues were reserved.
The claimant contended that he sustained wage loss disabilitysubstantially in excess of his anatomical impairment.
The respondent contended that the claimant did not sustained [sic]wage loss disability exceeding the level of his anatomical impairment.The respondent further contended that under § 11-9-505, it has providedthe claimant with rehabilitation services that were refused by theclaimant, therefore, § 11-9-505 bars claimant’s recovery of wage-lossbenefits exceeding the level of his anatomical impairment.
After a hearing before the Commission, the administrative law judgefound that, “As a result of his compensable injury, the claimant hassustained permanent disability in the total amount of 40%, consisting ofhis anatomical impairment of 9% to the body as a whole and 5% to thebody as a whole, together with his wage loss disability.”
The respondent appeals and the claimant cross appeals to the FullCommission. The respondent appeals contending the claimant is precludedpursuant to Ark. Code Ann § 11-9-505(b)(3), from receiving wage-lossdisability. The claimant cross-appeals contending that his wage-lossdisability is far greater than the 26% awarded by the administrative lawjudge.
II. Adjudication
Act 796 of 1993, as codified at Ark. Code Ann.§ 11-9-505(b)provides:
(3) The employee shall not be required to enter any program of vocational rehabilitation against his or her consent; however, no employee who waives rehabilitation or refuses to participate in or cooperate for reasonable cause with either an offered program of rehabilitation or job placement assistance shall be entitled to permanent partial disability benefits in excess of the percentage of permanent physical impairment established by objective physical findings.
The administrative law judge essentially found that there was noindication that an offer of program of rehabilitation or job placeassistance was made to the claimant. The Full Commission reverses thisfinding. We find that the claimant waived rehabilitation and refused toparticipate in or cooperate with an offered program of rehabilitationand job placement assistance. The 50-year — old claimant sustainedcompensable injuries to his neck and back on May 10, 2003. The claimantunderwent fusion surgery to his neck in December of 2003, with Dr.Schlesinger, who later implemented conservative treatment for his lumbarspine injury. On April 8, 2005, Dr. Schlesinger declared that theclaimant had reached maximum medical improvement and released him fromtreatment without any restrictions. The claimant underwent twofunctional capacity evaluations. The most recent FCE indicated that theclaimant could perform medium level work. In January of 2006, Dr.Schlesinger indicated that the claimant did not require furtherradiologic investigation or treatment for his compensable injuries. Therespondent has accepted a 9% anatomical impairment rating for theclaimant’s neck injury and a 5% anatomical impairment rating for hisback injury. The respondent’s rehabilitation manager, Heather Naylor,began consulting with the claimant in February of 2005. Ms. Naylorcredibly identified a number of job positions for the claimant andoffered to provide him with additional job assistance services. Theclaimant testified that at various times he followed up on the listing.However, during his interview with Ms. Naylor, the claimant informed herthat he did not wish to pursue vocational assistance. As a result, Ms.Naylor did not provide him with any additional listings or servicesunder the program such as GED assistance, interviewing skills and resumeassistance. The claimant’s testimony corroborates Ms. Naylor’s assertion(See testimony outlined above). While we recognize that Mr. White hasopined that the claimant cannot physically meet the demands of sedentarywork or light work and that vocational assistance would be unsuccessfuland not produce any results, the Full Commission does not attach anyweight to this opinion given all of the evidence to the contrary, as onefunctional capacity evaluation confirmed that the claimant is capable ofperforming light-medium work, and his most recent functional capacityevaluation confirmed that he is capable of performing medium levelwork.
Accordingly, the Full Commission finds that the claimant simplyrefused and was unwilling to cooperate with rehabilitation and jobplacement assistance offered him by the respondent. The claimant offeredno reasonable explanation for why he chose to stop working with therehabilitation specialist. Because the preponderance of evidenceindicates that the claimant waived rehabilitation and refused tocooperate with an offered program of rehabilitation and job — placementassistance, he is not entitled to receive wage — loss disability inexcess of his permanent anatomical impairment. Ark. Code Ann. §11-9-505(b)(3).
Based on our de novo review of the entire record, the Full Commissionfinds that the claimant waived rehabilitation and refused to participatein or cooperate with an offered program of rehabilitation and jobplacement assistance. The claimant is therefore precluded from receivingwage — loss disability in excess of his anatomical impairment pursuantto Ark. Code Ann. § 11-9-505(b)(3). The decision of the administrativelaw judge is therefore reversed, and this claim is denied anddismissed.
IT IS SO ORDERED.
________________________ OLAN W. REEVES, Chairman
________________________ KAREN H. McKINNEY, Commissioner
Commissioner Turner dissents.