CLAIM NO. E605030
Before the Arkansas Workers’ Compensation Commission
OPINION FILED JULY 13, 1999
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE ZAN DAVIS, Attorney at Law, Little Rock, Arkansas.
Respondents represented by the HONORABLE MICHAEL R. MAYTON, Attorney at Law, Little Rock, Arkansas.
Decision of administrative law judge: Affirmed as modified.
[1] OPINION AND ORDER[2] The respondents appeal and the claimant cross-appeals an administrative law judge’s opinion filed November 16, 1998. The administrative law judge found that the claimant has experienced a fifty percent (50%) wage loss disability as a result of his compensable injury of March 25, 1996. The Full Commission has reviewed the entire record de novo, and we find that the claimant has sustained wage loss disability in the amount of eight percent (8%) as a result of his admittedly compensable back injury without consideration of his diabetes condition. We therefore affirm, as modified, the opinion of the administrative law judge. [3] The claimant, age 61, completed three years of undergraduate study in economics and mathematics. The claimant has owned two separate furniture and appliance stores, in addition to being in the wholesale home furnishings business. The claimant testified that his activity in wholesale entailed “mainly riding in a car calling on dealers, doing paperwork, telephone calls.” The claimant was diagnosed as having diabetes in 1989, for which he was prescribed oral medication by his family physician, Dr. Jack Somers. The claimant began working in retail sales of major appliances for Sears Roebuck and Company in 1994, a position which required standing for an entire shift, at least 40 hours weekly. The claimant testified that he continued working as a freelance, independent sales representative for home furnishings in addition to his work for Sears. [4] The parties stipulated that the claimant sustained a compensable back injury on March 25, 1996. After treating with Dr. Somers, the claimant was referred to Dr. J. Zachary Mason, a neurosurgeon, who diagnosed a herniated nucleus pulposus at L4-5 on the left. Dr. Mason attempted conservative treatment but eventually performed a lumbar laminotomy at L4-5 on June 13, 1996. Dr. Mason evaluated the results of the claimant’s surgery on July 8, 1996:
[5] This patient does have a permanent impairment rating to the body as a whole of 9% as a result of his surgery and the residual symptoms of L5 nerve root weakness.He has been working for Sears as an appliance salesman. I think he is going to have a problem with this. I have recommended he avoid lifting more than 40 to 50 pounds. He should also avoid repetitive bending and stooping.
[6] The patient has no findings of a recurrent disc herniation at L4-5 as noted on his recent MRI scan. Certainly some of his pain can be secondary to the degenerative changes of the disc at L4-5. [7] The patient has a permanent impairment rating to the body as a whole of 9% as a result of his disc herniation and subsequent surgery. The patient should avoid repetitive bending and stooping. He should not lift more than 50 pounds. These are permanent restrictions.The respondents accepted and paid the 9% anatomical impairment rating, and the claimant returned to work in August, 1996. The claimant testified that his manager at Sears complied with the medical restrictions: “If I could work an hour, work an hour. If I wanted to work all day, work all day, and just come when I wanted to, I didn’t have any set dates.” In September, 1996, Dr. Mason indicated on a form provided by the carrier that the claimant had reached “maximum medical improvement.” Dr. Somers referred the claimant back to Dr. Mason after the claimant complained of weakness and aches and pains in his back and legs. On January 21, 1997, Dr. Mason stated:
It is difficult to determine if his current complaints are secondary to the degenerated disc at L4-5 or if he has some new compressive lesion. It is possible he may also be having problems from his diabetes. In any event, I have recommended that he again try an anti-inflammatory medication. I think it would be beneficial for him to have a nerve conduction velocity and EMG study as well as a follow-up MRI scan if this is not indicative of a peripheral neuropathy.
The claimant took a leave of absence and attempted a job with another employer in February, 1997. Dr. Mason corresponded with the carrier on March 13, 1997:
Mr. Booth did have a follow-up nerve conduction velocity and EMG study on February 11, 1997. This does show him to have a sensory motor polyneuropathy with mixed feature of demyelinization and axonal degeneration. I think this is what is causing his current complaints of pain in his lower extremities.
[8] The claimant testified that he has worked some every week since August, 1997. The claimant testified that he must spend a great deal of time sitting in a chair as a result of his compensable injury and surgery, and that he misses sales as a result. The claimant works on a strict commission. The claimant stated that he can stand for no more than 5-10 minutes before having pain in his back and legs, and he feels back pain after sitting for 15-20 minutes. The claimant has difficulty bending and does not lift. As a result he is able to work less hours. [9] The employee filed a claim for additional workers’ compensation, asserting that he is entitled to continuing medical benefits; the claimant also contended that the compensable injury has rendered him permanently and totally disabled. The respondents controverted any additional benefits beyond those already paid, and they contended that any wage loss disability was due to a pre-existing diabetic condition. Hearing was held October 1, 1998. The administrative law judge found that the claimant’s compensable injury has severely limited his ability to earn wages in retail sales “or any other employment endeavor which he may try.” The administrative law judge further noted that, excepting the ulcerated great toe in 1997, “the claimant has not been prevented from working because of his diabetic condition from the time it was first diagnosed in 1989 until he had his compensable injury in March of 1996.” The administrative law judge determined that the evidence did not preponderate in favor of the respondents’ assertion that the claimant’s pre-existing diabetic condition is the “major cause” of his current disability or need for medical treatment. [10] Act 796 of 1993, as codified at Ark. Code Ann. § 11-9-522(b)(1) (Repl. 1997) provides:The claimant returned to work for Sears in May, 1997. In June, 1997, Dr. Somers examined an ulcerative lesion of the left great toe and diagnosed diabetic foot infection, great toe. The claimant’s foot was much improved after ten weeks of antibiotics, with redness and swelling of the great toe nearly completely resolved. Dr. Jim Moore independently evaluated the claimant beginning July 23, 1997, noting that the claimant was a “known diabetic,” but “He has no particular stigmata as a result of the diabetes and has had fairly normal blood sugars.” Dr. Moore wrote on August 7, 1997:
I would think that from the industrial injury and the changes that would be related to surgery, the patient would necessarily be restricted in activities, prolonged standing, sitting, bending, stooping, or straining. However, I do feel that he is at the end of a healing period, per se, with residuals which have already been addressed in the permanent rating. Some additional conservative measures, as I suggested, might still be of some benefit to him.
[11] The wage-loss factor is the extent to which a compensable injury has affected the claimant’s ability to earn a livelihood. Bradley v. Alumax, 50 Ark. App. 13, 899 S.W.2d 850In 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.
(1995). In making this determination, the Commission may consider factors such as a claimant’s lack of motivation to return to work or failure to attempt to seek work. Id. Additionally, Ark. Code Ann. § 11-9-102(5)(F)(ii)(a) (Repl. 1997) provides that “permanent benefits shall be awarded only upon a determination that the compensable injury was the major cause of the disability or impairment.” “Major cause” is that which is more than half of the cause. Ark. Code Ann. § 11-9-102(14). [12] The present case presents an unusual situation where the claimant has sustained two distinct work limitations. The first limitation is back pain. According to the claimant, his back pain severely limits his ability to stand and work for the purpose of conducting sales. However, the medical opinions in this case attribute this pain condition primarily to a diabetic origin, rather than to the claimant’s L4-5 back injury and surgery. Consequently, we find that the claimant has failed to establish that his compensable back injury is the major cause of the disability associated with his back pain condition. [13] Nevertheless, the claimant was imposed with specific post-surgical activity restrictions for his back injury, including prolonged standing, sitting, bending, stooping or straining, and no lifting in excess of 40 to 50 pounds. We find that the claimant has proven by a preponderance of the evidence that his compensable back injury is the major cause of work-related disability associated with these restrictions. However, the respondent has made permanent light-duty work available to the claimant within these restrictions. Consequently, these restrictions under the circumstances have a small impact on the claimant’s future earning capacity at this time. [14] In assessing the degree of wage loss, we note that the claimant’s work history has been in sales, not manual labor. Notably, the work restrictions imposed for the claimant’s back injury do not appear to greatly affect the claimant’s ability to work in sales. At the time of hearing in 1998, the claimant’s weekly income was limited primarily by the number of hours he chose to work each week, and according to the claimant, the low number of hours he currently works is attributable primarily to back pain. We note that no physician has limited the number of hours the claimant can work each week for his compensable back injury and surgery. [15] After considering the claimant’s age, education, work experience, the nature and extent of his compensable injury, the work restrictions incurred as a result of that injury, and all other relevant factors, we find that the claimant has sustained an 8% impairment to his wage earning capacity attributable to his compensable back injury, and without consideration of his non-compensable diabetic condition, and diabetes-related back neuropathy. [16] Accordingly, based on our de novo review of the entire record, and for the reasons discussed herein, we find that the claimant has sustained wage loss disability in the amount of 8% as a result of his compensable injury and subsequent surgery. We thus affirm, as modified, the opinion of the administrative law judge. [17] 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). [18] 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) (Repl. 1996). [19] IT IS SO ORDERED.
ELDON F. COFFMAN, Chairman MIKE WILSON, Commissioner
[20] Commissioner Humphrey dissents. [21] DISSENTING OPINION[22] I must respectfully dissent from the finding of the majority that claimant is entitled to benefits for loss in wage earning capacity of only 8% to the body as a whole. [23] Claimant’s diabetes was first diagnosed in 1989 and has apparently been controlled with oral medications without the need to alter his diet. There is no evidence whatsoever that claimant’s diabetes has caused claimant to miss any work, except for the three months in 1997 when claimant’s big toe became infected. The physicians have merely speculated that some of claimant’s symptoms may be related to his diabetes. The remaining evidence of record indicates that the work-related injury is a significant, if not the only, factor in causing claimant’s wage loss disability. [24] Claimant is 61 years old and completed three years of college work in economics and mathematics. He has been self-employed in a business selling home furnishings, i.e. furniture and appliances. He has also been an independent manufacture’s representative wholesaling this same type of merchandise. Claimant has been employed with the employer since 1994 in the major appliance sales department. Each of these jobs involves considerable standing, stooping, bending and on occasion, heavy lifting. In fact, claimant sustained the compensable injury while maneuvering appliances (a washer). [25] Following surgery, Dr. Mason assigned claimant a permanent anatomical impairment of 9% to the body as a whole. Additionally, Dr. Mason opined the claimant would have problems working as an appliance salesman. He restricted claimant to lifting no more than 40 to 50 pounds, and avoidance of repetitive bending and stooping. Respondent sent claimant for an evaluation by Dr. Jim J. Moore. In his report, Dr. Moore reported the following:
[26] Claimant has presently returned to work for the employer, albeit at light and limited duty. Claimant must sit for an inordinate amount of time, which hinders his ability to earn commissions from sales, the only wages paid claimant by the employer. Claimant testified that his, in effect, part-time employment with the employer is all that he can physically tolerate. In other words, he is working as much as physically possible. He cannot return full time to any of his previous jobs because of difficulty riding, standing, stooping, bending, and lifting. He can stand for no more than five to ten minutes before experiencing pain in his back radiating down the leg. He can only sit for 15 to 20 minutes before stiffness sets in. [27] Yvonne Booth, claimant’s wife, and John Bowden, a co-worker of claimant, both corroborated claimant’s restricted activities and difficulty performing his job. [28] Based on the above evidence, I find that the majority’s award of benefits for a loss of earning capacity of only 8% to the body as a whole fails miserably to compensate claimant for his work-related injury. Accordingly, I respectfully dissent. [29] ______________________________ PAT WEST HUMPHREY, CommissionerI would think that from the industrial injury and the changes that would be related to surgery, the patient would necessarily be restricted in activities, prolonged standing, sitting, bending, stooping, or straining.