CLAIM NO. D509282
Before the Arkansas Workers’ Compensation Commission
OPINION FILED SEPTEMBER 29, 1997
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE DONALD PULLEN, Attorney at Law, Hot Springs, Arkansas.
Respondent #1 represented by the HONORABLE NATHAN CULP, Attorney at Law, Little Rock, Arkansas.
Respondent #2 represented by the HONORABLE DAVID PAKE, Little Rock, Arkansas.
Decision of Administrative Law Judge: Reversed.
[1] OPINION AND ORDER
[2] The Second Injury Fund appeals and the claimant cross-appeals an opinion and order filed by the administrative law judge on January 27, 1997. In that opinion and order, the administrative law judge found that the claimant’s prior impairment combined with the most recent compensable injury to produce the claimant’s current disability status so that the Second Injury Fund is liable for a 15% wage loss.
(1984); Oller v. Champion Parts Rebuilders, 5 Ark. App. 307, 635 S.W.2d 276 (1982). [13] At the time of the hearing, the claimant was only 43 years old. He has a college degree and teacher’s certification. As discussed above, the claimant has taught social studies and coached for various periods between 1981 and 1991. However, the claimant has not worked since his 1991 laminectomy surgery. The claimant contends that as a result of his injuries and surgeries, he has been rendered permanently and totally disabled, or in the alternative, that he falls within the “odd lot” classification, and is entitled to permanent and total disability benefits on that basis. [14] With regard to the physical requirements necessary to function as a teacher and coach, the claimant testified:
[15] With regard to the bending, stooping and lifting required in a teaching position, the claimant testified:It’s pretty physical work you know, especially, if you want to do it right. Teaching has changed. You don’t just sit down, especially in junior high and high school. You don’t just go in there and sit down and expect the kids just to sit there smiling ready to absorb all the information you’re fixing to give them. It takes work, you know, again, the more you put into it, the more you get out of it and your students get out of it.
[16] With regard to his current medications and his daily activities, the claimant testified that he takes medication daily for his back and leg pains, and has additional unscheduled medications that he takes for pain. The claimant testified that his pain medications make him “droggy” (apparently drowsy and/or groggy), and that the medication affects his judgment. The claimant testified that his medication affects him in ways that he does not perceive, but that people around him perceive. The parties stipulated that the claimant’s wife would corroborate the claimant’s testimony. [17] The claimant testified that his daily activities include a lot of reading, a lot of housework, and daily exercises. The claimant testified that prolonged sitting causes pain into his low back and legs. The claimant testified that standing causes worse pain than sitting. [18] The claimant testified that his jaws hurt in the morning because he grinds his teeth at night. The claimant testified that he generally feels worse as the day goes on, so that he finds it best to perform his daily exercises and his daily walking (approximately 1 1/2 mile) in the morning. [19] The claimant testified that, when he engages in lifting, he tries to lift with his arms and not bend his back. With regard to bending and stooping, the claimant testified that he tries to brace himself, or spread his feet out wide or tries to adapt. [20] In assessing the weight to be accorded the claimant’s testimony regarding his physical limitations, we note that the respondents offered into evidence a videotape of the claimant’s activities on July 25, 1996, July 26, 1996, and August 3, 1996. [21] The videotape from July 25, 1996, shows the claimant closing the hood of his trunk in an area away from his home. This video is significant only to the extent that it occurred at 3:31 p.m., after the morning period when the claimant purports to be relatively pain free. The July 26, 1996, video depicts sequences between 12:23 p.m. and 1:45 p.m. when the claimant appears to be entering or leaving the family car while performing some sort of shopping or errands with his two small children. We perceive that this sequence is also somewhat contradictory to the claimant’s testimony regarding his lack of endurance in the afternoon periods. [22] The third video sequence, recording segments between 2:43 p.m. and 5:50 p.m. on August 3, 1996, appears to bear significantly on the claimant’s physical endurance as well as the physical limitations indicated by the claimant’s testimony. The first segment (2:43 p.m.) indicates the claimant sitting on a step to his home’s door during the course of a telephone call. The claimant’s seated position (knees higher than perpendicular to the waist) appears somewhat inconsistent with the claimant’s reports of persistent low back and lower extremity pain. At 3:08 p.m., the claimant stood up (without any apparent “bracing”, etc.) and walked to his truck. Between 3:09 p.m. and 3:15 p.m. the claimant stood on the ground and leaned inside the passenger’s door to sort through what appears to be pieces of paper on the floor board and/or seat. Within the course of approximately the next five minutes, the claimant bent over from the waist approximately seven times from a standing position to pick up trash off of the ground and also picked up several items from inside the cab of the pick up and placed the items in the bed. In addition, the claimant stood on the ground and leaned far into the cab for several seconds while standing on one leg with the other leg raised, apparently to maintain his balance. Between 3:20 p.m. and 3:45 p.m., the claimant bent over from the waist to pick up items from the ground on approximately three more occasions and again stood on one occasion from a sitting position without any apparent bracing or other adjustment. [23] Between 4:39 p.m. and 4:58, the claimant used a riding lawn mower to mow a relatively small area of lawn using a curricular mowing pattern. During the course of this activity, the claimant on several occasions turned his head to look behind the mower to the right or to the left. Significantly, when the mower appears to have become wedged in some shrubs at 4:55 p.m. the claimant reached down and grasped the riding mower over the right rear wheel and lifted/dragged the mower several inches away from the shrubbery. It appears from the videotape that this action took a significant physical effort involving the claimant’s back to lift a significant amount of weight. [24] At 4:58 p.m., the claimant rode his mower to the end of the street, and the next segment of videotape indicates the claimant riding back to his home at 5:44 p.m. The claimant then lifted and carried two metal ramps (approximately one foot wide and six feet long) to the bed on his pickup truck, and then drove his riding lawn mover into the bed of the pickup. The claimant then went into the house. [25] In short, we find that the claimant’s actions in lifting the rear end of a riding law mower and in carrying the metal ramps, all after 4:00 p.m., significantly diminish the weight to be accorded the claimant’s testimony regarding his physical limitations in general and also with regard to his testimony regarding his reduced stamina after the morning hours. Moreover, the videotape indicates that the claimant is capable of occasional bending, lifting and other light-duty activity, with no apparent problem with occasional heavy lifting. In addition, the tape indicates the claimant performing these activities in the mid to late afternoon, and not in the morning when, according to the claimant, he is capable of more pain-free activity. [26] In assessing the claimant’s physical limitations, we also note that the claimant has undergone two functional capacity assessments in 1996. The first assessment was performed at the request of Respondent No. 1 on September 20, 1996, by Jimmy Daniel. This assessment concluded that the claimant demonstrated sufficient functional capacity to work safely and productively insedentary, light, and medium physical demand range jobs as defined by the United States Department of Labor and the Dictionary of Occupational Titles. [27] In a Vocational Assessment report dated October 16, 1996 (and addressed to the claimant’s attorney) Bob White, a vocational consultant, concluded that the claimant has significant vocational handicaps (psychological, cognitive deficits, behavioral and physical impairments) which cannot be overcome at this time. From a medical standpoint, Mr. White notes the claimant’s history of (1) arachnoiditis (2) non-union of L4-L5 fusion graft and (3) infections. In assessing the weight to be accorded Mr. White’s analysis, we note that the L4-L5 graft non-union and the claimant’s history of infections had resolved long before the October, 1996 evaluation. [28] In addition, contrary to Mr. White’s conclusions, David Elmore testified that he is a rehabilitation specialist employed by Intracore and that he has concluded that the claimant could return to work as a social studies teacher. In this regard, Mr. Elmore testified that social studies teacher is classified as light-duty work. In addition, Mr. Elmore testified that he contacted three physicians regarding the claimant’s return to work as a social studies teacher: (1) Dr. Reginald Rutherford who had examined the claimant on one occasion in 1996 at the request of Intracore; (2) Dr. Ackerman, who examined claimant in 1996 at the request of Intracore, and (3) Dr. Hart, who had followed the claimant for pain management since at least February of 1994. In response, Dr. Rutherford and Dr. Ackerman indicated that as of October of 1996, the claimant was currently able to perform the job of high school teacher as that job is defined in the 4th Edition (1991) of the Dictionary of Occupational Titles. Dr. Hart, in a more conservative opinion, indicated that the claimant is currently able to attempt to perform the job of high school teacher. [29] In short, the record establishes that the claimant is a relatively young man (42) who has the education and certification to teach history, social studies and physical education at the secondary level and perhaps geography and drivers’ education as well. In addition, a functional capacity assessment in the record indicates that employment as a teacher at the secondary level is within the claimant’s physical capabilities, and the videotape in the record shows the claimant engaged in relatively heavy lifting and significant bending activities on the afternoon of August 3, 1996. [30] Consequently, after considering the claimant’s relatively young age, his college education, his work experience in a relatively sedentary occupation, the nature and extent of his injuries and impairment, and all other matters properly in the record, we find that the claimant failed to prove by a preponderance of the evidence that he falls within the odd-lot category, and we find that the claimant failed to prove by a preponderance of the evidence that he is permanently and totally disabled. In reaching that conclusion, we note that, even if the claimant does not feel capable of returning to full-time teaching under contract at this time, the claimant is clearly capable of working part-time as a substitute teacher, if he chooses to pursue this line of work. [31] Finally, we note that under the Arkansas Workers’ Compensation Law, neither Respondent No. 1 or the Second Injury Fund can be held liable to compensate the claimant for the claimant’s 30% permanent anatomical impairment which preexisted the claimant’s 1984 injury unless the claimant is permanently and totally disabled. See Jeffcoat v. Second Injury Fund, 55 Ark. App. 249You have to be a sponsor for things. You have to carry textbooks, prepare lesson plans and everything besides general movement, you know, going from one area to another and you have to be on your feet all the time.
(1996) (Second Injury Fund not entitled to a credit for disability which preexisted second injury if claimant is rendered permanently and totally disabled by combination of first and second injury); Weaver v. Tyson Foods, 31 Ark. App. 147, 790 S.W.2d 442 (1990) (Neither employer at the time of the second injury or the Second Injury Fund is liable for any anatomical impairment which preexisted the second injury where the claimant was not rendered permanently and totally disabled as a result of combination of first and second injuries). [32] Consequently, since (1) neither respondent can be held liable for the claimant’s 30% anatomical impairment which preexisted the claimant’s 1984 injury unless the claimant has been rendered permanently and totally disabled; (2) the claimant has already received permanent disability compensation for his 1984 injury equivalent to 70% rated to the body as a whole; and (3) the claimant failed to prove by a preponderance of the evidence that he is permanently and totally disabled, we find that the claimant failed to prove that he is entitled to additional permanent disability compensation from either Respondent No. 1 or Respondent No. 2 under the Arkansas Workers’ Compensation Law. Therefore, we find that the decision of the administrative law judge must be, and hereby is, reversed. [33] IT IS SO ORDERED.
ELDON F. COFFMAN, Chairman MIKE WILSON, Commissioner
[34] Commissioner Humphrey dissents.