BROWDER v. RICELAND FOODS, 1994 AWCC 36

CLAIM NO. E107621

CLOVIS BROWDER, EMPLOYEE, CLAIMANT v. RICELAND FOODS, EMPLOYER, RESPONDENT and LIBERTY MUTUAL INSURANCE CO., CARRIER, RESPONDENT

Before the Arkansas Workers’ Compensation Commission
OPINION FILED JUNE 22, 1994

Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.

Claimant represented by PAUL HARRISON, Attorney at Law, Little Rock, Arkansas.

Respondent represented by J. MICHAEL PICKENS, Attorney at Law, Little Rock, Arkansas.

Decision of Administrative Law Judge: 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 29, 1993 finding that claimant is permanently and totally disabled.

[3] After carefully conducting a de novo review of the entire record, we find that a preponderance of the credible evidence indicates that claimant has sustained a 20% wage loss disability in excess of the 10% anatomical impairment rating to the body as a whole. Therefore, we modify the decision of the Administrative Law Judge.

[4] Claimant maintains that as a result of a work-related injury occurring on or about April 23, 1992, he has been rendered permanently and totally disabled pursuant to the odd-lot doctrine. Respondent contends that claimant is entitled to no permanent partial disability benefits in excess of a 10% anatomical impairment rating to the body as a whole. A hearing was held and an Administrative Law Judge found in favor of the claimant. Respondent now appeals.

[5] Claimants have the burden of proving by a preponderance of the evidence that they are entitled to compensation benefits. Voss v. Ward’s Pulpwood Yard,248 Ark. 465, 452 S.W.2d 629 (1970). In determining whether a claimant has sustained his burden of proof, the Commission shall weigh the evidence impartially, without giving the benefit of the doubt to either party. A.C.A. § 11-9-704;Wade v. Mr. C Cavenaugh’s, 298 Ark. 363, 768 S.W.2d 521
(1989); and Fowler v. McHenry, 22 Ark. App. 196, 737 S.W.2d 663 (1987). Additionally, A.C.A. § 11-9-522 (b) provides that the Commission can consider claims for permanent partial disability benefits in excess of permanent physical impairment ratings by taking into account such factors as the claimant’s age, education, work experience and other matters reasonably expected to affect his future earning capacity. Furthermore, in City of Fayetteville v. Guess,10 Ark. App. 313, 663 S.W.2d 946 (1984), the Arkansas Court of Appeals indicated that “other matters reasonably expected to affect his future earning capacity” include a claimant’s motivation to return to work.

[6] Claimant is a 64 year old man who did not finish high school but did obtain a GED in the military. Claimant is able to read, write and perform math. Claimant has plethora of job experience. Claimant has farmed, performed construction work, operated heavy equipment, repaired machinery, and performed general maintenance work. Claimant has also been a plant supervisor in charge of approximately 75 employees.

[7] Claimant was injured on or about April 23, 1991 when he fell off his truck and landed in the hopper. Initially, claimant was treated by Dr. Guyer, a general practitioner, who referred him to Dr. Wilson, a Little Rock orthopaedic. Claimant underwent x-rays, a lumbar MRI, CT scan and a bone scan which revealed “mild degenerative reactive spurring, exaggerated lordosis and bulging annuluses at L4-5, L3-4 and L5-S1 with no evidence of protruding disc fragments.” Claimant was then referred to Dr. Frigon, a Pine Bluff neurologist. Dr. Frigon treated claimant conservatively until February 3, 1992. Dr. Frigon in her deposition indicates that she is of the opinion claimant could return to work lifting no more than 50 pounds. She further testified that claimant is not totally disabled from any type of gainful employment but can work at “light duty” type activity. Dr. Frigon also opined that claimant did not need surgery and that claimant needs to remain active.

[8] Claimant was next seen by Dr. Fletcher, a Little Rock neurosurgeon on February 27, 1992. Dr. Fletcher noted that claimant had “degenerative spurring and arthritic changes in most of the lumbar vertebrae and degenerative bulging and the lower four disc.” However, Dr. Fletcher also opined that there was no evidence of a “significant disc protrusion, rupture or nerve pressure secondary to disc.” Claimant was diagnosed by Dr. Fletcher as having “degenerative lumbar disc disease” and “osteoarthritis at multiple levels of the lumbar spine” and a “superimposed musculoligamentous sprain/strain.” Additionally, Dr. Fletcher stated that claimant should be able to return to “light to moderate” forms of work. Based upon the credible medical evidence, claimant suffered a work-related minor sprain/strain but has been some problems related to the natural aging process.

[9] In our opinion, the testimony of Ms. Sheryl Washington is more credible than Mr. Robert White’s. Ms. Washington conducted a complete and thorough rehabilitation evaluation. By considering claimant’s age, education, work experience, physical restrictions and other limitations, she identified approximately three jobs in claimant’s geographical area for which he is physically and mentally qualified. Predictably, Mr. White opined that claimant was “not capable of any employment in the local economy based upon medical diagnosis, functional capacity, and age.” Mr. White appears bias. We have seen this canned report on a number of occasions. He consistently espouses the position most favorable to whomever is paying him. Therefore, we give Mr. White’s report minimal weight.

[10] It is also significant that claimant appears to lack any motivation to return to “the outside” work force. Claimant has understandingly elected to retire. Claimant is 64 years old and has had a full employment life. Claimant is not under any monetary pressure to return to the “outside” work force. He is presently receiving social security disability benefits and has a supplemental income from his wife’s bar. When claimant feels like working, he participates at his wife’s bar. His family is able to make a living from the bar. In light of claimant’s age and his family’s present income, claimant does not appear to be motivated to return to work.

[11] In our opinion, a preponderance of the credible evidence does not support claimant’s contention that he is permanently and totally disabled. Rather, the evidence shows that claimant has elected to remove himself from the outside work force. However, the evidence does show a loss in wage earning capacity. Therefore, we modify the decision of the Administrative Law Judge and find that claimant is entitled to an additional 20% permanent partial disability related to wage loss

[12] IT IS SO ORDERED.

JAMES W. DANIEL, Chairman ALLYN C. TATUM, Commissioner

[13] Commissioner Humphrey dissents.

[14] DISSENTING OPINION
[15] I must respectfully dissent from the opinion of the majority finding that claimant’s wage loss disability is only 20% to the body as a whole. I would affirm the opinion of the Administrative Law Judge finding that the compensable injury has rendered claimant permanently and totally disabled pursuant to the odd-lot doctrine.

[16] Claimant is 64 years old and has a tenth grade education. After a period of time working on a farm, claimant received his GED while serving in the Air Force. The thumb on claimant’s dominant right hand has been amputated. Since claimant has been unable to transfer various skills to his left upper extremity, he has difficulty performing various tasks, such as writing and counting money. Claimant’s work history includes primarily heavy manual labor. Although claimant was a superintendent in a plant for a short period of time, claimant had to quit this position because he was unable to handle the strain associated with his supervisory responsibilities.

[17] In April 1991, claimant sustained an admittedly compensable low back injury. Objective evidence of permanent disability include consistent findings of bulging discs, exaggerated lordosis, degenerative reactive spurring, diminished or absent reflex on the right ankle, decreased sensation in an L-5 distribution, positive straight leg raisings, and decreased range of motion.

[18] Although claimant has good days and bad days, he experiences constant low back pain radiating into the right hip and right lower extremity. He must take prescription medication on a daily basis. Claimant presented credible testimony concerning his physical limitations and restricted daily activities. Although claimant testified that he does occasionally visit his wife at her place of business in order to keep her company, he does so only on his good days and for a limited period of time. After this activity, and most any other activity, claimant must lie down. The greater weight of the evidence indicates that claimant cannot return to any of his prior jobs.

[19] Based on the above evidence, 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 Mill, 22 Ark. App. 63, 748 S.W.2d 151 (1988). Respondents have failed to present sufficient evidence that suitable work is regularly and continuously available to claimant.

[20] Respondents rely on the testimony and reports of Sheryl Washington, a vocational consultant. However, in my opinion, Washington’s testimony is entitled to little weight.

[21] It is obvious that Washington approached this cases with the preconceived notion that claimant would not be motivated to return to work. Prior to interviewing andevaluating claimant, a labor market survey was conducted specifically for claimant and Washington authored her report dated November 2, 1992. In this report, Washington stated that “[a]fter this long period of disability, Mr. Browder may have a decreased motivation to participate in a successful return to work effort.” She was perhaps laying the groundwork for respondent’s assertion that claimant lacks motivation to return to work. I am concerned that Washington’s prejudgment of claimant’s motivation may have colored her efforts to help him locate suitable, gainful employment.

[22] Notwithstanding the above, the labor market survey was able to identify only three possible jobs in Arkansas and Jefferson County. Claimant was interviewed for one position but was not offered the job because of his disability. Claimant filled out an application for another but has not heard from the employer. Claimant did not apply for the third position as a security guard. The allegation by respondent and Washington that claimant could perform a position as a security guard is untenable. The employer has several security guard positions. However, it is undisputed that the employer refused to allow claimant to return to work because there were no positions within his physical limitations.

[23] A preponderance of the evidence indicates that suitable work is not regularly and continuously available to claimant and that his “future job prospects are negligible.”Lewis v. Camelot Hotel, 35 Ark. App. 212, 816 S.W.2d 632
(1991). Therefore, claimant has proven by a preponderance of the evidence that the compensable injury has rendered him permanently and totally disabled.

[24] For the foregoing reasons, I dissent.

[25] PAT WEST HUMPHREY, Commissioner