CLAIM NO. D609422
LAYTON J. BOSTIC, EMPLOYEE, CLAIMANT v. LAYTON J. BOSTIC, EMPLOYER, (CARTWRIGHT VAN LINES), RESPONDENT and AMERICAN HOME INSURANCE CO., CARRIER, RESPONDENT
Before the Arkansas Workers’ Compensation Commission
OPINION FILED JULY 20, 1994
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by KEITH VAUGHAN, Attorney at Law, Angleton, Texas.
Respondent represented by RALPH R. WILSON, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed and Modified.
[1] OPINION AND ORDER
[2] This matter comes on for review by the Full Commission from the decision of the Administrative Law Judge filed on July 28, 1993.
[3] After carefully conducting a de novo review of the entire record, we find that a preponderance of the credible evidence shows that claimant is not entitled to temporary total disability benefits from October 31, 1988 through May 21, 1990. As to the matter of controverted attorney’s fee, we have read the briefs and stipulations by the parties and find that is no longer an issue. Therefore, we modify the award of the Administrative Law Judge in accordance with the stipulations of the parties. Also, we find that a preponderance of the evidence does not establish the contention that claimant is permanently and totally disabled pursuant to the “odd-lot” doctrine. Therefore, we affirm part and modify part of the Administrative Law Judge’s opinion.
[4] As to the issue of temporary total disability benefits from October 31, 1988 through May 21, 1990. On this issue, claimant’s attorney apparently concedes that the claimant reached the end of his healing period by October 31, 1988 as demonstrated by the independent medical report of Dr. Thomas Fletcher. However, claimant’s attorney contends that since claimant was prevented from earning the wages he received at the time of his injury, he should still receive temporary total disability benefits even though the healing period had ended. Yet, the law, if properly applied to the facts of this case, provides that claimant’s permanent partial disability benefits should commence subsequent to October 31, 1988 with the period from May 21, 1990 through November 11, 1990 being an interruption of his entitlement to permanent partial disability. During this time, claimant had reentered entitlement to temporary total disability benefits. No one seems to argue that claimant did not re-enter a TTD period subsequent to his next surgery. Indeed, respondent has admitted and paid temporary total disability from May 21, 1990 through November 1, 1990. Claimant’s argument is an erroneous statement of the law. Therefore, we affirmed the Administrative Law Judge on the issue of temporary total disability.
[5] With regard to permanent disability benefits, claimant’s counsel tries to raise the “odd-lot doctrine”. However, in this case, an application of the “odd-lot doctrine” would be a double catch-22. Claimant had severe problems and certainly has some loss of earning capacity as a result of his permanent disability. However, claimant is a young man with sufficient education and background to return to the work force. Dr. Fletcher not only recognizes this but encourages the claimant to do so. It is apparent that claimant has no intention of doing anything until after this case comes to an end. Claimant has not sought any employment, employment assistance or even explored a vocational rehabilitation program. Claimant’s conduct shows a lack of motivation to return to work. When an individual refuses to cooperate, then the “odd-lot doctrine” is not appropriate. Thus, we find that the preponderance of the credible evidence shows that claimant has the ability to return to the work force.
[6] Accordingly, for the reasons above, we affirm the Administrative Law Judge on the issue of temporary total disability and permanent disability benefits and modify the attorney’s fee award in accordance with the stipulation of the parties.
[7] IT IS SO ORDERED.
JAMES W. DANIEL, Chairman ALLYN C. TATUM, Commissioner
[8] Commissioner Humphrey concurs in part and dissents in part.
[9] CONCURRING AND DISSENTING OPINION
[10] I concur with the majority on the issue of controverted attorney’s fees. However, I must respectfully dissent from the remaining portions of the opinion.
[11] Concerning controverted attorney’s fees, both parties agree that the Administrative Law Judge erred in applying the 1986 amendments to this case. It is undisputed that claimant’s injury occurred on April 23, 1986, prior to the effective date of the amendments. Therefore, respondents are liable for the entire amount of the controverted attorney’s fees.
[12] Concerning temporary total disability, I would modify the opinion of the Administrative Law Judge to find that claimant is entitled to these benefits from the date of the injury through November 11, 1990. Respondents paid temporary total disability benefits from the date of the injury until either October 31, 1988 or December 13, 1988, as well as from May 21 through November 11, 1990.
[13] Respondents contend that claimant’s healing period ended on October 31, 1988, based on an examination and report of that date by Dr. Thomas Fletcher. However, the opinion of Dr. Austin Grimes, claimant’s treating physician from March 31, 1987 until the present, is entitled to more weight. Dr. Fletcher saw claimant only one time and that was in October 1988. Thereafter, claimant underwent an additional surgical procedure. Dr. Grimes, on the other hand, treated claimant on an extensive and prolonged basis, including four surgical procedures. Thus, Dr. Grimes is in a much better position to determine when claimant’s healing period ended. Dr. Grimes is clearly of the opinion that claimant remained within his healing period and totally incapacitated from earning wages from the date of the injury, or at least from the date of his first treatment of claimant, until November 11, 1990. Therefore, based on the above evidence, I find that claimant has proven by a preponderance of the evidence that he is entitled to temporary total disability benefits from the date of the injury until November 11, 1990, and I would modify the opinion of the Administrative Law Judge accordingly.
[14] In addition to a 30% permanent anatomical impairment to the body as a whole, the Administrative Law Judge awarded benefits for wage loss disability in an amount equal to 50% to the body as a whole. I would modify the opinion to find that claimant has proven by a preponderance of the evidence that he is permanently and totally disabled, if not outright, at least pursuant to the odd-lot doctrine.
[15] Claimant is 46 years old and has a high school education, with some subsequent training in mechanical drafting. His work history includes employment as a farm worker, a forklift operator, a truck driver, a heavy equipment operator, an owner of a truck stop, a dispatcher, and a warehouse manager. Claimant was a truck driver at the time of his accident. On April 23, 1986, claimant sustained a back injury while moving heavy boxes. This injury has resulted in six surgical procedures, including fusions at three levels of the lower back. Claimant has likewise had difficulty with the donor site. His permanent anatomical impairment has been estimated to be between 30% and 40% to the body as a whole. Dr. Grimes even testified that some physicians might rate his anatomical impairment at 60% to the body as a whole. It is undisputed that claimant cannot return to work as a truck driver or any other job requiring manual labor.
[16] Claimant experiences constant lower back, right hip and right lower extremity pain. He takes prescription medication on a daily basis. He has severe limitations concerning his ability to sit, walk, twist, bend, stoop and lie down. With most any type of activity, claimant experiences muscle spasms and increased pain. Dr. Grimes testified that with increased activity, claimant experienced increased symptoms, “which limited him severely to his activity level.” Dr. Grimes also stated that claimant “developed a fair amount of depression.” Even in October 1988, Dr. Fletcher opined that claimant had “marked restriction of activity,” was “markedly impaired,” and suffered from “severe, chronic pain problem.” Physical therapy and work hardening programs have been unsuccessful because of claimant’s abdominal weakness, which, according to Dr. Grimes, also puts additional strain on his back even at rest. While Dr. Fletcher opined that claimant was capable of “very light type activity,” it is obvious that he simply believes that “if a person can occupy themselves in some way, that they’re better off.” Additionally, Dr. Fletcher was unable to opine that claimant would be able to perform a sedentary position for an eight hour period of time. Dr. Grimes unequivocally opined that claimant is permanently and totally disabled or at least would be unable to perform any work on a regular and continuous basis.
[17] Claimant is not required to make a futile attempt to find employment. If claimant’s condition prevents him from participating in physical therapy or a work hardening program, he certainly cannot be expected to perform gainful employment.
[18] Based on the above evidence, I find that claimant has presented a prima facie case that he falls within the odd-lot category, thereby shifting to respondents the burden of going forward with evidence that some kind of suitable work is regularly and continuously available to claimant.M. M. Cohn Co. v. Haile,
267 Ark. 734,
589 S.W.2d 600 (Ark.App. 1979). Claimant does not have to be “utterly helpless” in order to be entitled to benefits for total disability. While claimant may be able to work a small amount, the compensable injury restricts him to “services that are so limited in quality, dependability, or quantity that a reasonably stable market for them does not exist.” Hyman v.Farmland Feed Meal,
24 Ark. App. 63,
748 S.W.2d 151 (1988). Since claimant has presented a prima facie case of total disability and respondents have failed to present any evidence on claimant’s overall job prospects, I find that claimant is permanently and totally disabled. The greater weight of the evidence indicates that suitable work is not regularly and continuously available to claimant and his “future job prospects are negligible.” Lewis v. CamelotHotel,
35 Ark. App. 212,
816 S.W.2d 632 (1991).
[19] Accordingly, I would modify the opinion of the Administrative Law Judge to find that claimant is permanently and totally disabled.
[20] PAT WEST HUMPHREY, Commissioner
