CLAIM NO. F014217
Before the Arkansas Workers’ Compensation Commission
OPINION FILED DECEMBER 3, 2002
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by HONORABLE RONALD L. GRIGGS, Attorney at Law, El Dorado, Arkansas.
Respondents represented by HONORABLE MICHAEL DENNIS, Attorney at Law, Pine Bluff, Arkansas.
Decision of the Administrative Law Judge: Affirmed as modified.
OPINION AND ORDER
The respondents and the claimant appeal an Administrative Law Judge’s opinion filed April 17, 2002. The Administrative Law Judge found that the claimant failed to prove that he was permanently and totally disabled as a result of his compensable injury. The Administrative Law Judge found that the claimant proved he sustained a decrease in his wage-earning ability equal to 10% permanent partial disability. After reviewing the entire record de novo, the Full Commission finds that the claimant sustained a decrease in his wage-earning ability equal to 20%. We therefore affirm, as modified, the opinion of the Administrative Law Judge.
I. HISTORY
Curtis Burris, age 55, testified that he was educated through grade eight. Mr. Burris testified that he had received no vocational training and could not read or write very well. The claimant had worked primarily as a furniture hauler.
The parties stipulated that the claimant sustained a compensable injury on November 14, 2000. The claimant testified that he was injured while moving furniture.
The parties stipulated that the respondents provided reasonably necessary medical treatment. Dr. Greg Smart examined the claimant on November 29, 2000 and assessed “Left leg pain, specific etiology uncertain.” Dr. Smart took the claimant off work on December 4, 2000; the parties stipulated that the respondents paid temporary total disability compensation. Dr. Smart reported on December 27, 2000:
He had a bone scan last week which was unremarkable. X-rays have been nondiagnostic, but the MRI scan reveals some mild disc protrusions and possible herniations. . . .
ASSESSMENT: Left leg pain and weakness, possibly secondary to disc disease.
Dr. Smart referred the claimant to Dr. Robert E. Germann, a neurological surgeon, who examined the claimant on January 16, 2001:
MRI of the back revealed a herniated disk at left L4-5 and small left herniated disk at L5-S1 on the foramen. . . .
IMPRESSION: Left L4-5 radiculopathy.
Dr. Germann treated the claimant conservatively, but wrote to Dr. Smart on February 6, 2001:
Curtis underwent a lumbar myelogram on 02/06/01 which revealed a herniated disk at L4-5, with some amputation of the nerve root, which agrees with his MRI. He has failed on conservative treatment. He will be admitted for a left L4-5 intralaminar laminotomy and removal of herniated disk. . . .
Dr. Smart subsequently indicated, however, that arrangements had been made for a second opinion. Another neurological surgeon, Dr. James R. Adametz, examined the claimant and reported on March 2, 2001:
My assessment is that this gentleman does have a small disc abnormality. I think there may be a little bit of pressure on the left L5 nerve root, although it is certainly not dramatic and I cannot find any neurologic deficit to go along with it except for the numbness of the entire left foot which, of course, is not very specific. . . . I talked to Mr. Burris at some length. I think certainly Dr. Germann has done a good job at conservative therapy up to this point and now has decided to go ahead with surgery because nothing else has worked. I think the biggest problem is getting Mr. Burris back to work and on with a normal functional life no matter what is done. I think the most important thing at this point would be some vocational rehab. He does not seem to be in any severe pain. He does not have any very significant neurological deficit and so if he could obtain a light duty type job I think that would really be in his best interest. I think that is going to end up being the case with or without surgery and I think it is a rather close judgment call as to whether or not I would operate on this gentleman. I would be very inclined to think that he is not likely to get a good recovery and/or be able to return to work even after surgical intervention and I think it would be more difficult to get him some other type job if he is known to have had surgery on his back and so I would be inclined just to concentrate on vocational rehab and try to get him by with this.
Dr. Robert A. Watson examined the claimant on April 3, 2001, and his impression included “Inguinal hernia.”
Dr. Adametz followed up with the claimant on June 5, 2001:
He is really in for a final evaluation. . . . I think the chances of getting a good result with surgery are not very good in his case. He is to the point now where he wants to try to go on with his life. I discussed some vocational rehab with him and that would be in his best interest, I think. I will give him a permanent partial impairment rating of 5% to the body as a whole. I would recommend that he not lift over 30 lbs. on an indefinite basis.
The respondents accepted and paid the 5% impairment rating assigned by Dr. Adametz.
Mr. Burris claimed entitlement to additional worker’s compensation. The claimant contended that he was permanently and totally disabled as a result of his compensable injury. The respondents contended that they were not liable for any permanent benefits exceeding the 5% anatomical impairment rating.
Hearing before the Commission was held on February 28, 2002. At that time, the parties stipulated that the respondents offered vocational rehabilitation to the claimant. The claimant testified at hearing that he felt constant back pain. The claimant testified that he was unable to bend, had trouble sleeping, and was unable to sit or stand without difficulty.
The Administrative Law Judge found that the claimant failed to prove he was permanently and totally disabled. However, the Administrative Law Judge found that the claimant “sustained a decrease in his wage earning ability equal to 10% permanent partial disability.” Both parties appeal to the Full Commission.
II. ADJUDICATION A. Vocational Rehabilitation
Ark. Code Ann. § 11-9-505 provides:
(b)(3) The employee shall not be required to enter any program of vocational rehabilitation against his or her consent; however, no employee who waives rehabilitation or refuses to participate in or cooperate with an offered program of rehabilitation or job placement assistance shall be entitled to permanent partial disability benefits in excess of the percentage of permanent physical impairment established by objective physical findings.
The Administrative Law Judge concluded in the present matter:
The parties stipulated that the respondents have offered vocational rehabilitation to the claimant. The record is silent with regard to claimant’s response to any offer of rehabilitation. . . . Respondents have offered vocational rehabilitation to the claimant, but no evidence of any such rehabilitation efforts were (sic) introduced into evidence. Thus, while it cannot be found that the claimant refused vocational rehabilitation, neither can it be found that the claimant participated with any such efforts.
The Full Commission affirms the Administrative Law Judge’s implicit finding that the claimant did not waive rehabilitation. We recognize that the claimant’s attorney stipulated at the beginning of the hearing that the respondents had “offered vocational rehabilitation.” Commissioner Yates contends that the claimant is bound by this stipulation and is not entitled to receive any wage-loss disability. As a general rule, parties are bound by their stipulations. See, Thompson v. City of Bentonville, Workers’ Compensation Commission E901941/E911438/E911439 (June 6, 2002). However, the Commission is not required to enforce a stipulation that is not consistent with justice and fair play. Mayo v. Area Agency onAging, Workers’ Compensation Commission E610215 (Feb. 18, 1998).
Despite counsel’s stipulation that the respondents had “offered vocational rehabilitation,” there was no testimony indicating what sort of rehabilitation was offered the claimant. Nor was there any record of consultation with a vocational counselor or any other offer of vocational rehabilitation. In order to rely upon Ark. Code Ann. § 11-9-505(b)(3) in foreclosing the claimant’s entitlement to permanent partial disability, the respondents must show that the claimant refused to participate in a program of vocational rehabilitation or job placement assistance, or, through some other affirmative action, indicated an unwillingness to cooperate in those endeavors. Knight v. AndrewsTransport, Worker’s Compensation Commission E408356 (April 17, 1998), citing Newman v. Crestpark Retirement Inn, Workers’ Compensation Commission E418166 (Sept. 14, 1998). In the present matter, the respondents offered no evidence to show that the claimant refused to participate or was unwilling to cooperate in vocational rehabilitation. Therefore, the Full Commission affirms the Administrative Law Judge’s finding that the claimant is not barred by Ark. Code Ann. § 505(b)(3) from pursuing wage-loss disability.
B. Wage Loss
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 850 (1995). Ark. Code Ann. § 11-9-522(b)(1) provides:
In 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 expect to affect his future earning capacity.
The Administrative Law Judge found in the present matter, “Claimant has proven that he sustained a 10% impairment to his wage earning capacity for which he is entitled to additional permanent partial disability benefits over and above his 5% physical impairment rating.” The Administrative Law Judge discussed that the claimant had “sustained a relatively minor injury to his back for which he has not even undergone surgery.” The Administrative Law Judge noted the claimant’s age of 54 at the time of hearing and determined that the claimant was not motivated to return to work. The Administrative Law Judge concluded from the functional capacity evaluation that the claimant was not putting forth maximum effort.
The Full Commission finds that the claimant proved that he was entitled to wage-loss disability in an amount greater than 10%. The claimant was a credible witness, now age 55 with only an eighth-grade education. The claimant is nearly functionally illiterate. His work history is almost exclusively heavy manual labor, and there is no history of a prior disabling back condition before the compensable injury. Dr. Germann thought the claimant needed surgery, but the respondents instead sent the claimant to Dr. Adametz. Dr. Adametz considered surgery a close judgment call, but decided not to operate on the claimant. Dr. Adametz opined that a light-duty job would be in the claimant’s best interests. The claimant has a herniated disc at L5 and lives in constant pain — the claimant cannot sit, stand, or bend without difficulty. As for the Functional Capacity Evaluation, a physical therapist looked at the claimant one time and said the claimant was physically capable of performing more work than he demonstrated. Although the therapist also reported “symptom magnification,” none of the treating physicians detected any such symptom magnification.
However, the preponderance of evidence does not support Commissioner Turner’s opinion that the claimant is permanently and totally disabled as a result of his compensable injury. Dr. Adametz stated in March 2001 that the claimant could perform light-duty work. Although he reiterated the claimant’s work restrictions in June 2001, Dr. Adametz did not opine that the claimant was permanently and totally disabled. In addition, the record indicates that the claimant is not motivated to resume employment. Such a lack of motivation impedes our assessment of the claimant’s loss of earning capacity. City of Fayetteville v. Guess, 10 Ark. App. 313, 663 S.W.2d 946 (1984).
The Full Commission finds in the present matter that the claimant has sustained wage-loss disability in an amount equal to 20%, which is in addition to the 5% anatomical impairment rating assigned to the claimant as a result of his compensable injury.
Based on our de novo review of the entire record, the Full Commission finds that the claimant failed to prove that he was permanently and totally disabled as a result of his compensable injury. We find that the claimant sustained a decrease in his wage-earning ability equal to 20%, in addition to the 5% anatomical impairment sustained by the claimant as a result of his compensable injury. The Full Commission therefore affirms, as modified, the opinion of the Administrative Law Judge.
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).
For prevailing on this appeal before the Full Commission, the 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
(Repl. 1996).
IT IS SO ORDERED.
______________________________ ELDON F. COFFMAN, Chairman
Commissioner Turner concurs in part and dissents in part.
CONCURRING AND DISSENTING OPINION SHELBY W. TURNER, Commissioner
I concur that claimant is entitled to at least 20 percent in wage-loss benefits, but I respectfully dissent from the majority finding that claimant is not permanently and totally disabled from his compensable injury.
Pursuant to Ark. Code Ann. § 11-9-522, permanent disability compensation is paid where the permanent disability effects of a work-related injury incapacitates the worker from earning the wages which he was receiving at the time of injury. In determining the degree of permanent disability sustained by an injured worker with an unscheduled injury, the Commission must consider medical evidence demonstrating the degree to which the worker’s anatomical disabilities impair his earning capacity, as well as other factors such as the worker’s age, education, work experience, and other matters which may be reasonably be expected to affect the worker’s future earning capacity. Such other matters are motivation, post-injury income, credibility, and demeanor. Glass v.Edens, 233 Ark. 786, 346 S.W.2d 685 (1961); City of Fayetteville v.Guess, 10 Ark. App. 313, 663 S.W.2d (1984); Curry v. FranklinElectric, 168, 798 S.W.2d 130 (1990). When it becomes evident that the worker’s underlying condition has become stable and that no further treatment will improve the condition, the disability is deemed to be permanent. If the employee is totally incapacitated from earning a livelihood at that time, he is entitled to compensation for permanent and total disability. Minor v. Poinsett Lumber Manufacturing Co., 235 Ark. 195, 357 S.W.2d 504 (1962).
Two expert witnesses presented differing conclusions regarding whether surgery would be appropriate for claimant’s injury. Agreeing that claimant is suffering the effects of his compensable injury, Dr. Germann felt surgery might be beneficial while Dr. Adametz felt conservative treatment would be the best course of action.
Dr. Adametz reported on March 2, 2001:
He was evaluated with a lumbar myelogram. The report on that says there is a little narrowing of the thecal sac at L4-5 and L5-S1 and that there is bulging discs at those levels. In Dr. Germann’s reports he refers to this as a left L4-5 disc herniation. MDM: My assessment is that this gentleman does not have a small disc abnormality. I suspect at time, from his description of the pain, that he does get some pressure on the nerve. I think the biggest problem is getting Mr. Burris back to the work and on with a normal functional life no matter what is done. He does not have any significant neurological deficit and so if he could obtain a light duty type job I think that would really be in his best interest. I think that is going to end up being the case with or without surgery and I think it is a rather close judgement call as to whether or not I would operate on this gentleman. I would be inclined to think that he is not likely to get a good recovery and/or be able to return to work even after surgical intervention
and I think it would be more difficult to get him into some other type of job if he is known to have had surgery on his back and so I would be included to just concentrate on vocational rehab and try to get him by with this. (Emphasis added).
Upon review of claimant’s MRI scan on June 5, 2001, Dr. Adametz conceded that claimant did sustain a disc abnormality, but still maintained that surgery would not be in the claimant’s best interest, despite Dr. Germann’s recommendation.
STUDIES REVIEWED: On his MRI scan he does have a couple of Bulging discs and even had surgery recommended as a last resort by Dr. Germann down in El Dorado.
DECISION MAKING: I think the chances of getting a good result with surgery are not very good in this case. He is to the point now where he wants to try to go on with his life. I discussed some vocational rehab with him that would be in his best interest, I think. I will give him a permanent impairment rating of 5% to the body as a whole. I would recommend that he not lift over 30 lbs. on an indefinite basis. (emphasis added).
I find, based on these analyses, that claimant is physically unable (by both physicians’ determinations) to return to his previous work of heavy manual labor. Dr. Adametz concludes that surgery, even if performed, would not improve claimant’s condition and that claimant still be would unable to work. Claimant is functionally illiterate and would be difficult, if not impossible, to rehabilitate. Accordingly, I find that claimant is physically unable to earn wages comparable to those he earned before his compensable injury.
Furthermore, in weighing factors which may affect an employee’s future earning capacity, the Commission may also consider a claimant’s motivation to return to work, since a lack of interest or negative attitude impedes the Commission’s assessment of the claimant’s loss of earning capacity. City of Fayetteville, supra.
Evident from Dr. Adametz’s June 2001 report was his belief that claimant desires to work, but is inhibited by his compensable injury.
Reviewing the record in its totality, I find that claimant did sustain a permanent impairment from his compensable injury. For all the reasons stated herein, I must concur and respectfully dissent from the majority opinion.
_______________________________ SHELBY W. TURNER, Commissioner
Commissioner Yates dissents.
DISSENTING OPINION JOE E. YATES, Commissioner
I must respectfully dissent from the majority’s opinion finding that the claimant has proven by a preponderance of the evidence that he is entitled to a 20% loss in wage earning capacity. The majority has awarded the claimant an additional 10% wage loss disability benefit in addition to the 10% that the Administrative Law Judge awarded. In my opinion, the claimant has failed to prove by a preponderance of the evidence that he is entitled to any wage loss disability benefits.
Ark. Code Ann. § 11-9-505(b)(3) states that an employee who refuses to participate in or cooperate with an offered program of rehabilitation or job placement is ineligible for benefits in excess of the percentage of permanent physical impairment. In addition, Ark. Code Ann. §11-9-505(b) states that the program must be attempted prior to a determination of the amount of permanent disability benefits payable to the employee. A stipulation was offered at the hearing and was accepted by the Administrative Law Judge that a program of vocational rehabilitation had been offered to the claimant. The majority affirmed the Administrative Law Judge’s implicit finding that the claimant did not waive rehabilitation. However, in my opinion, a review of the evidence indicates that the claimant did waive rehabilitation.
It was stipulated at the hearing that a program of vocational rehabilitation had been offered. It is clear that the claimant chose to pursue permanent and total disability benefits. The burden is upon the claimant to prove entitlement to any benefits. Further, Act 796 requires that the statutes be strictly construed. Ark. Code Ann. §11-9-505(b)(3) provides that an employee who refuses to participate in or cooperate with an offered program is not entitled to permanent partial disability benefits in excess of the permanent impairment rating. Further, this statute requires the claimant to make a request and attempt a program prior to seeking permanent benefits. The claimant has the burden of proving that he participated in or give an excuse for his failure to participate in the offered program of rehabilitation. In my opinion, the respondent did everything it was supposed to do in this case. It paid benefits on a compensable injury. It paid permanent partial impairment rate benefits that were assigned by the claimant’s treating physician. It offered vocational rehabilitation. The claimant in contrast offered submaximal effort at his functional capacity evaluation, and did not participate in the offered vocational rehabilitation program. Once the stipulation occurred concerning the offer of vocational rehabilitation, the burden is on the claimant to accept that or accept the consequences. Specifically, the claimant is limited in the amount of benefits that he can recover. Accordingly, the claimant should not be entitled to any wage loss disability benefits under the provisions of Ark. Code Ann. § 11-9-505. The claimant is limited to only the permanent impairment benefits that were accepted and paid by the respondents because he failed to participate in the vocational rehabilitation offered by the respondents.
Accordingly, for all the reasons set forth herein, I must respectfully dissent from the majority’s opinion finding that the claimant was entitled to a 20% loss in wage earning capacity. Therefore, I respectfully dissent from the majority opinion.
_______________________________ JOE E. YATES, Commissioner