CLAIM NO. E801569
Before the Arkansas Workers’ Compensation Commission
OPINION FILED APRIL 14, 1999
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by KENNETH E. BUCKNER, Attorney at Law, Pine Bluff, Arkansas.
Respondent represented by ROBERT H. MONTGOMERY, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed in part and reversed in part.
[1] OPINION AND ORDER[2] The respondent appeals a decision of the Administrative Law Judge filed on September 18, 1998, finding that claimant sustained a 50% impairment to the lower extremity and finding that claimant is permanently and totally disabled pursuant to the odd-lot doctrine. Based upon our de novo
review of the entire record, we find that claimant has established entitlement to a 50% impairment rating to the lower extremity but that he has failed to meet his burden of proof that he is permanently and totally disabled or of establishing prima facie showing that he falls within the odd-lot category, thus shifting the burden onto respondent of proving that some kind of suitable work is regularly and continuously available to the claimant. Therefore, we affirm in part and reverse in part the decision of the Administrative Law Judge. [3] At the hearing held on June 3, 1998, claimant contended that as a result of his compensable injury which occurred in April of 1993, he is entitled to a 50% impairment rating to the lower extremity or, in the alternative, that claimant is permanently and totally disabled. Conversely, respondent denied that claimant has any permanent impairment. After reviewing the evidence impartially, without giving the benefit of the doubt to either party, we find that claimant has failed to prove that he is permanently and totally disabled by virtue of the odd-lot doctrine or otherwise. However, we find that the evidence does establish claimant sustained a 50% impairment rating to the left lower extremity for which he is entitled to benefits. [4] It was stipulated that claimant sustained a compensable injury to his left lower extremity in April of 1993. According to claimant’s testimony, this injury occurred when he slipped while stepping off a dozer placing strain and pressure upon his left leg. Despite this injury, claimant did not miss any appreciable time from work to entitle him to temporary total disability benefits. Claimant’s injury has been accepted and treated as a medicals only claim by respondent. It is claimant’s testimony, however, that after returning to work and working for a number of years that the condition in his leg deteriorated to the point that he was missing time from work. The record reflects that claimant continued to work for respondent-employer until January of 1997. It is claimant’s testimony that he was laid off in January of 1997 due to the amount of time he was missing from work. Claimant further testified that after being laid off by respondent-employer he was able to secure work with T. L. James Construction Company in February of 1997. Claimant continued to work for this employer until January of 1998. Claimant describes his termination from T. L. Construction Company as follows:
[5] Pursuant to this testimony, there was no explanation which accompanied claimant’s termination. Instead claimant just assumed that he was laid off because he was missing work due to trouble with his leg. Absent from the record, however, is any evidence documenting claimant’s absences from work other than one Certificate for Return to Work/School signed by Dr. Duckworth on December 15, 1997, excusing claimant from work for one week. [6] Since claimant has been off work, he began drawing social security retirement although according to claimant he is qualified for social security disability benefits. It is claimant’s testimony and the testimony of his wife that the swelling in claimant’s leg has improved to some degree since claimant has been off work and been able to elevate his leg during the day. Despite the slight improvement in swelling, claimant has seen an increase in the skin ulcerations. [7] We find that the evidence does not support a finding of permanent and total disability. The claimant sustained an injury to that portion of his body which is scheduled under the Act. Therefore, the claimant’s entitlement to permanent disability benefits is controlled by Ark. Code Ann. § 11-9-521. Unless a claimant with a scheduled injury is permanently and totally disabled, he is not entitled to any benefits in excess of the percentage of physical impairment set forth in the schedules. Since the nature of the injury is fixed in scheduled injury cases, a finding of permanent and total disability hinges on factors which bears on the claimant’s age, education, experience, and other matters affecting wage loss. Moser v. ArkansasLine Company, 41 Ark. App. 113, ___ S.W.2d ___ (1993). [8] An employee who is injured to the extent that he can perform services that are so limited in quality, dependability, or quantity that a reasonable stable market for them does not exist may be classified as totally disabled under the odd-lot doctrine.Lewis v. Camelot Hotel, 35 Ark. App. 212, 816 S.W.2d 632 (1991). The odd-lot doctrine recognizes the obvious severity of some injuries may combine with other factors to preclude the employee from obtaining employment in any reasonably stable market, although the worker is not altogether incapacitated from work. Id. The factors which may combine with the obvious severity of the employee’s injury to place him in the odd-lot category are the employee’s mental capacity, education, training and age. Id. If the claimant makes aprima facie showing that he falls in the odd-lot category, the respondent has the burden of proving that “some kind of suitable work is regularly and continuously available to the claimant.” Id. [9] The record is void of any medical documentation or employment absentee reports corroborating claimant’s testimony that he missed time from work which prompted his lay off from respondent-employer in January of 1997. Furthermore, the only evidence documenting claimant’s need to miss work in relation to his work-related injury and the compensable consequence of deep vein thrombosis is that of a one-week period in December of 1997. The evidence clearly reflects that claimant was working and earning a meaningful wage despite the complications which arose from his compensable injury. According to the testimony of both claimant and his wife, claimant continued to work 10 to 12 hour days six days per week even after he sustained his compensable injury. Moreover, claimant’s treating physician did not offer any report concerning claimant’s ability to work until one week after claimant was laid off in January of 1998, when claimant first sought social security disability benefits. [10] It is claimant’s burden to prove that he falls prima facie within the odd-lot category, or that he is permanently and totally disabled as a result of his scheduled injury. In our opinion, claimant has failed to carry his burden of proof. The evidence clearly indicates that claimant was fully capable of returning to work despite his compensable injury and consequences thereof. The evidence reflects that whether claimant works or not, he has swelling in his left lower extremity. Being off work has not improved this condition to any great amount, and it has resulted in more skin ulcerations. While it is claimant’s contention that his compensable injury was the cause for his lay offs in January of 1997, and again in January of 1998, claimant has failed to prove this allegation. There is no evidence in the record that claimant missed any time from work as a result of his compensable injury other than the one-week period in December of 1997. Consequently, we cannot find that claimant has proven by a preponderance of the evidence that he was dismissed from his employment due to excessive absenteeism relating to the compensable injury or that his compensable injury prevented him from working on a long term basis. [11] Claimant is an intelligent man who has been in construction work his entire life. Claimant has been a supervising employee for a number of years. Claimant can read and write and operate a calculator. Presently, claimant’s average days involve some minor yard work where he rides a riding lawnmower and works in his garden during the morning hours. Claimant can drive an automobile and he runs errands for his wife. The record reflects that aside from seeking employment in the heavy equipment construction industry, claimant has not sought any other type of employment. While claimant may no longer be able to perform this type work for ten hours per day, this does not mean that claimant is permanently and totally disabled. There are jobs in which employees may sit and even elevate their leg at times, but this claimant has failed to even consider any type of employment other than construction work. In this regard, we do not find credible claimant’s testimony that he sought assistance from the Rehabilitation Center, but was advised that it would be a waste of his time. Claimant has not produced any supporting documentation of this alleged conversation. [12] Accordingly, when we weigh claimant’s age, education, work experience, mental capacity, compensable injury, and all other matters which we may properly consider in assessing whether a claimant is permanently and totally disabled, we find that claimant has failed to carry his burden of proof. Moreover, we find that claimant has failed to establish that he was injured to the extent that he can only perform services that are so limited in quality, dependability or quantity that a reasonable stable market does not exist. Therefore, we find that claimant has failed to prove that he falls within the odd-lot category. With regard to claimant’s impairment rating, we find claimant has established that he sustained a physical impairment rating in the amount of 50% to the left lower extremity as a result of his compensable injury. This rating is documented in Dr. Duckworth’s February 4, 1998 correspondence to claimant’s attorney wherein he assigned claimant a 50% impairment to the left lower extremity due to claimant’s vascular disease. Since this is an impairment to a scheduled member, and since we find that claimant has failed to prove entitlement to permanent and total disability benefits, we find that claimant is only entitled to this 50% impairment rating. [13] Finally, the evidence reflects that claimant was held off work in relation to his compensable injury in December of 1997. Therefore, pursuant to Montgomery v. Delta Airlines,31 Ark. App. 203, 791 S.W.2d 716 (1990), we find that using claimant’s average weekly wage at the time of his accident, claimant is entitled to the maximum compensation rate for 1997, the date on which his disability began. [14] Accordingly, for those reasons set forth herein, we find that the decision of the Administrative Law Judge must be, and hereby is, affirmed in part and reversed in part. [15] IT IS SO ORDERED.Well, I just quit because they laid me off. I had missed so much work and they came — when I came to work one Monday morning, they just called me back in the office and said they didn’t need me anymore.
_______________________________
ELDON F. COFFMAN, Chairman _______________________________ MIKE WILSON, Commissioner
[18] I respectfully dissent from the majority opinion that claimant is not permanently and totally disabled by virtue of the odd-lot doctrine. [19] Claimant, a sixty-two-year-old man, commenced his employment with respondent employer in 1961. He worked as a heavy equipment operator until 1997, when he was laid-off. The parties stipulated that claimant sustained a compensable injury on April 29, 1993. Claimant described the mechanics of the injury in the following manner:
[20] Claimant returned to work on April 30, 1993. However, he stated that he had recurrent problems, in the form of ulcerated sores on his leg. He stated that he consulted Dr. Duckworth for the treatment of the sores. He developed blood clots in 1996, a condition that required hospitalization. [21] At the behest of respondents, Dr. Dharamsey, a vascular surgeon, examined claimant. On November 20, 1997, Dr. Dharamsey diagnosed deep vein thrombosis and ordered a Venogram. This test revealed the “. . . presence of left ventricular diastolic dysfunction.” In his initial report, Dr. Dharamsey stated that “[claimant] continues to develop recurrent left lower extremity swelling with recurrent DVT, venous stasis, and stasis ulcers. These come about every 1-2 months, take significant efforts in healing, and require antibiotics. He also has chronic venous stasis changes in the left lower extremity and this hinders him from his work.” Dr. Dharamsey concluded that there exists no remedy for claimant’s chronic DVT. He predicted that claimant’s problems will be life long. [22] Besides diagnosing a “chronic deep venous thrombosis secondary to a previous crush injury,” Dr. Thomas Duckworth assigned an impairment rating of 50%. In a letter dated January 26, 1998, Dr. Duckworth stated that he has treated claimant for “venous stasis of the left lower extremity with venous varicosities and recurrent chronic deep venous thrombosis secondary to a previous crush injury. His condition is chronic and he will require long term medical care and medication for this problem. . . . Because of the nature of his work and his type of illness it is unlikely that he will be able to continue his present type of employment much longer without serious consequence.” [23] Although claimant fractured his ankle in 1971, he returned to work without restrictions and experienced no problems until the occurrence of his compensable injury. Claimant could return to work the day after his compensable injury; however, his condition has deteriorated since the occurrence of the compensable injury. The evidence shows that claimant has continued to deteriorate as demonstrated by Dr. Duckworth’s comment in 1998 that claimant would face dire consequences if he returned to construction work. [24] Claimant stated that the circulation in his leg is poor. He stated he has multiple sores, which his treating physician has bandaged periodically. He indicated that the bandages extend from his knee to his ankle. Claimant has suffered recurrent leg sores since the injury. His physician has instructed him to remain off his feet. Claimant has also been instructed to elevate his foot above the level of his heart, which he does about 80% of the day. He stated that about 1/3 of his foot is constantly numb. Claimant indicated that walking is painful. He stated he must walk slowly because a faster pace results in increased swelling in claimant’s leg. Claimant also experiences a throbbing sensation in his leg. [25] Claimant described his daily routine, stating that he begins with mowing the grass. He stated that he can ride the lawn mower for one hour. He then gardens for about thirty minutes before coming inside and elevating his foot. He stated that he takes Coumadin, a blood thinner, on a daily basis. However, he did not require this medication before the occurrence of the compensable injury. Moreover, claimant must wear support stockings to prevent ulcerations of his leg. He indicated that he must put the socks on before getting out of bed. He applies Diprolene, a lotion for treating ulcers, to his leg twice each day. Again, the stockings and lotion only became necessary following claimant’s compensable injury. He stated that the ulcers bleed intermittently, leaving blood stains on the bed linens. Claimant’s skin is discolored constantly. At times, claimant is bedfast due to his injury. [26] Claimant’s lifestyle has changed drastically since his injury. Although he was initially able to return to work, he stated that his condition has deteriorated. Formerly, he worked sixty hours each week. He stated that he worked twelve-hour days. In January of 1998, Dr. Duckworth confined claimant to his bed for one week. On June 1, 1998, Dr. Duckworth wrapped claimant’s leg and urged him to remain at home for two days. Although claimant continues to hunt and fish, his spouse stated that he is only able to do so for brief periods. [27] Considering all relevant factors, it is my opinion that claimant’s vascular disease, a compensable consequence of his original work-related injury, has rendered him permanently and totally disabled by virtue of the odd lot doctrine. [28] Based on the foregoing, I respectfully dissent.I was getting down off of a dozer, it was a muddy condition, my feet slipped, and I fell between the dozer and the push arm on the dozer, then fell over backwards, which put the strain and pressure on my leg.
_______________________________ PAT WEST HUMPHREY, Commissioner