CLAIM NO. F604014
Before the Arkansas Workers’ Compensation Commission
OPINION FILED MAY 15, 2009
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the Honorable Phillip Wells, Attorney at Law, Jonesboro, Arkansas.
Respondents No. 1 represented by the Honorable William C. Frye, Attorney at Law, North Little Rock, Arkansas.
Respondent No. 2 represented by the Honorable David Pake, Attorney at Law, Little Rock, Arkansas.
Respondent No. 3 represented by the Honorable Christy King, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Reversed in part, affirmed in part.
OPINION AND ORDER
Respondent No. 2, Second Injury Fund, appeals an administrative law judge’s opinion filed August 11, 2008. The administrative law judge found that the claimant was permanently and totally disabled and that Respondent No. 2 was liable. After reviewing the entire record de novo, the Full Commission reverses the administrative law judge’s finding that the claimant proved he was
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permanently and totally disabled. The Full Commission finds that the claimant proved he sustained wage-loss disability in the amount of 35%. We affirm the administrative law judge’s finding that the Second Injury Fund is liable for the claimant’s wage-loss disability.
I. HISTORY
Charles W. Callahan, age 58, testified that he graduated from the 12th
grade. Mr. Callahan testified that following high school he worked in sales and office management, personnel management, and that he worked for the respondent-employer, Sherwin Williams, for 26 years. The claimant testified that he was a store manager for the respondents for 23 years.
Dr. John L. Elfervig, an eye physician and surgeon, examined the claimant on January 10, 2000 and informed Dr. Kye Layton, “Vision is 20/60 OD, reading 20/80. The left eye is 20/50, reading 20/50. For a man of his age, he has rather extensive drusen and soft drusen formation in both eyes, more noticeable in the right eye than the left eye. There is some coalescence of the pigment epithelium in the right eye with clumping of pigment that is indeed suspicious of a deep and occult choroidal neovascular membrane. The optic nerve drusen are much more noticeable in the left eye.”
The claimant testified that he became a customer service manager for the respondents in 2003. This change of positions involved a downgrade in salary. “I just didn’t really want the responsibility of manager, of store manager, but I still wanted to sell paint,” the claimant testified.
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Dr. Kevin D. Ganong evaluated the claimant on July 31, 2003 and reported the claimant’s past medical history:
1. Hypertension treated since about age 20.
2. Gallstones with a cholecystecomy in 1998.
3. Apparently some coronary artery disease. He had a cardiac catheterization which he said showed some partial blockages which were not a big problem. He also has a bundle branch block.
4. Macular degeneration.
5. Sleep apnea.
6. He was formerly treated for depression.
7. Bone spur in the past. . . .
Dr. Ganong’s assessment included “1. Uncontrolled diabetes.”
A cardiology study on August 3, 2004 showed abnormalities in the claimant’s heart. Dr. Nuri Akkus gave the following impression after a Cardiac Catheterization on August 26, 2004: “1. Mid to distal LAD about 60% lesion with diffuse LAD disease in the mid LAD up to 50%. 2. Proximal PDA 60% lesion. 3. Normal renal arteries. 4. Mild LV dysfunction with estimated ejection fraction of 45-50%.”
Dr. Robert J. Landry examined the claimant on December 1, 2004: “Mr. Callahan is complaining of being unable to see well enough to read for the past 4 years.” Dr. Landry’s impression was “Visually significant cataract, right eye. PLAN: Elective cataract extraction with planned IOL implant, right eye.”
The parties stipulated that the claimant sustained a compensable injury to his back on June 3, 2005. The claimant testified, “My back starting (sic) hurting, due to some lifting and I don’t remember the exact time, or date, but made
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mention to a fellow worker that my back was hurting and it progressively got worse.”
Dr. Elfervig reported on November 18, 2005, “Mr. Callahan has had a spectacular return of vision post PDT, where he was 20/200 right and left eye last time, the PDT treatment left eye 8-23-05 has returned his vision to 20/50+, reading J5 OS. The right eye is still stable at the 20/200 level.”
The claimant began treating with a neurosurgeon, Dr. Gregory F. Ricca, on December 12, 2005. Dr. Ricca initially treated the claimant conservatively for his back pain. On February 20, 2006, Dr. Ricca planned bilateral diskectomies for neural decompression with PLIF’s and instrumentation L3-L5. Dr. Ricca performed surgery on April 4, 2006. The pre- and post-operative diagnoses were “Bilateral herniated nucleus pulposus at L3-4 and at L4-5.” Dr. Ricca discharged the claimant from the hospital on April 7, 2006 with the principal diagnosis, “Low back pain/bilateral lower extremity pain from severe neural compression from bilateral broad-based herniated nucleus pulposus at L3-4 and L4-5.” The secondary diagnoses were “1. Insulin-dependent diabetes mellitus. 2. Hypertension. 3. Heart disease. 4. Macular degeneration.”
Dr. Ricca assigned the claimant light duty work on June 12, 2006; no bending or twisting, 10 pound lifting restriction.
Dr. Elfervig examined the claimant on July 14, 2006 and noted in part, “The right eye shows diffuse macular degeneration and mottling.”
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Dr. Thomas M. Stank noted on August 2, 2006, “Mr. Callahan is complaining of being unable to see well enough to read the newspaper for the past 3 months.” Dr. Stank’s impression was “Visually significant cataract, left eye. PLAN: Elective cataract extraction with planned IOL implant, left eye.”
A Functional Capacity Evaluation was done on August 29, 2006, with the following conclusion:
The results of this evaluation indicate that Charles Callahan demonstrated the ability to lift in the MEDIUM WORK category of work based on a maximum floor to knuckle lift of 47 pounds. He further demonstrated this capacity by lifting and/or carrying 18-32 pounds of weight on a FREQUENT basis. During positional tolerance testing Mr. Callahan demonstrated tolerance of forward reaching, grasping, assembly, fine-motor, seeing, hearing, and talking on a CONSTANT basis. He also demonstrated tolerance of pushing, pulling, sitting, standing, walking, sustained squatting, kneeling, and overhead reaching on a FREQUENT basis.
Mr. Callahan demonstrated tolerance of stair climbing, balancing, repetitive squatting, sustained bending, repetitive bending, crawling, and pivot-twisting on an OCCASIONAL basis. Test results indicate consistent effort on 19 of 19 maximum voluntary effort tests. Mr. Callahan demonstrated consistent physiological responses to maximum tests with use of accessory musculature, having increased heart and respiratory rates, and becoming red-faced with maximum effort.
The claimant followed up with Dr. Ricca on September 11, 2006: “Mr. Callahan wants to RTW and try. His FCE says that he cannot meet the full duty requirements. We agreed that he will engage in aggressive home exercise the next few weeks and then try to RTW on 9/25/6.”
Dr. Ricca noted on October 23, 2006, “Mr. Callahan states that he cannot tolerate work. His first week back to work he worked 30 hrs and the second
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week he worked 14 hours. He had to take a lot of Vicoden. During that time he had fever, sweating and glucose up to 400. It took him 1.5 weeks to get over 2 weeks of work. In the past we discussed facet blocks and facet rhizotomy. . . .” Dr. Ricca planned “Diagnostic facet blocks L3-4 right, L4-5 right, and L5-S1 right. Permanent restrictions per Mr. Callahan’s FCE.”
Dr. Ricca administered diagnostic facet blocks on October 26, 2006. The claimant informed Dr. Ricca on November 13, 2006 that the lumbar facet blocks were of no help. Dr. Ricca noted on January 5, 2007, “He has not returned to work but will retire 1/31/7. . . . He needs his medications reviewed and adjusted as needed, Mr. Callahan also needs an impairment rating.”
Dr. Robert Alleman performed an exploratory laparotomy with extensive adhesiolysis and biopsy of mesenteric mass on January 30, 2007. The post-operative diagnosis was “Diffuse carcinomatosis with multiple areas of infarction and carcinoma.”
Dr. Ricca reported on February 4, 2007:
Mr. Charles Callahan is a patient of mine who developed severe LBP and bilateral posterior LE pain in the Spring of 2005. His job required carrying heavy buckets of paint and straining his low back. This resulted in large bilateral disc ruptures at Lumbar 3-4 and Lumbar 4-5 that ultimately required surgery.
Mr. Callahan had a Posterior Lumbar Interbody Fusions at Lumbar 3-4 and Lumbar 4-5 on 4/4/6. He had very large bilateral disc ruptures at these levels as well as calcification of the posterior longitudinal ligament that was fused with the dura. Mr. Callahan suffers from chronic Low Back Pain and pain into his lower extremities. He carries a diagnosis of Lumbar PostlaminectomyPage 7
Syndrome. He has tried to work but is unable to because of marked low back pain and right lower extremity pain.
I last saw Mr. Callahan on 1/5/7 and released him from my care at that time. I was asked to provide an impairment rating for Mr. Callahan.
I followed the AMA Guides to the Evaluation of Permanent Impairment, Fourth Edition, from the American Medical Association.
Table 75 on page 3/113, section IV. Part D (Single level spinal fusion with or without decompression with residual signs or symptoms). Lumbar. Mr. Callahan receives a 12% impairment of the whole person. Section IV. Part E.1 adds 1% for a second level.
Please note that the AMA Guides to the Evaluation of Permanent Impairment does not address Mr. Callahan’s inability to work or engage in normal daily activities. It does not consider the ongoing symptoms that significantly interfere with Mr. Callahan’s ability to enjoy life. This also affects his family. The AMA Guides to the Evaluation of Permanent Impairment also does not address Mr. Callahan’s need for chronic pain medication and physician follow-up. Mr. Callahan may need a dorsal column stimulator for management of his chronic low back pain and right lower extremity pain. This would require an additional surgery that according to the AMA Guides would increase his impairment rating another 1%.
Thus, based on my review of Mr. Callahan’s records and my review of the AMA Guides to the Evaluation of Permanent Impairment, Fourth Edition, from the American Medical Association Mr. Callahan receive at least a 17% partial impairment of the whole person.
The parties stipulated that the claimant reached the end of his healing period and maximum medical improvement on February 4, 2007. The parties stipulated that Respondent No. 1 had accepted and was paying permanent
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partial disability benefits to correspond with a 13% permanent anatomical impairment.
Heather Taylor, a vocational rehabilitation consultant, provided an Initial Vocational Rehabilitation Evaluation on January 15, 2008 and reported in part:
Mr. Callahan has not worked since around October or November of 2006 when he attempted to return to light duty for only about one day. He has since retired from Sherwin-Williams effective 1/07. Since that time, Mr. Callahan reported that he has not made any attempts to return to the workforce, and does not think that he would be able to hold down a job. In addition to his workers’ compensation injury, Mr. Callahan has numerous other medical problems that could interfere with him successfully returning to the workforce. . . .
Mr. Callahan had a three-level fusion performed on 4/4/06 by Dr. Gregory Ricca. Mr. Callahan reported that he had physical therapy for a short period of time after his surgery. However, he reported that he still continues to experience pain on a regular basis and was told that this was due to nerve damage. Mr. Callahan has since been released by Dr. Ricca (in 11/06) and was at maximum medical improvement. He has not seen Dr. Ricca since around 11/06.
Mr. Callahan completed a Functional Capacity Evaluation which was recommended by Dr. Ricca. This FCE was completed in 8/06, and showed that his physical performance was up to the Medium work category. This suggests that he can exert 20-50 lbs. of force occasionally, and/or 10-25 lbs. of force frequently, and/or greater than negligible up to 10 lbs. of force constantly to move objects. . . .
Mr. Callahan reported no other previous workers’ compensation related injuries or surgeries in his lifetime. However, Mr. Callahan did report numerous other health conditions, as follows:
• He has been a diabetic for approximately the last seven years and is currently insulin-dependent
• In 2004 he had two heart stents put in
• In 1997 or 1998, he had gallbladder surgery
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• He has had high blood pressure for several years, but it is currently controlled with medication
• He has had several neuromas removed from each foot in 2003
• He has macular degeneration. As a result of this, Mr. Callahan said that he has no central vision and has halos around both eyes when he is looking directly into lights. Mr. Callahan also reported that he does very little night driving. He said that if he does drive at night, it is only on very familiar roads. He said that his macular degeneration started about 5-6 years ago.
• He has had two cataracts removed from his eyes
• In 1/07, he was diagnosed with colon/rectal cancer. Mr. Callahan is currently receiving chemotherapy treatments for his cancer. He has had approximately 21 treatments to date, and indicated that he will continue to receive chemotherapy treatments about once a week or once every two weeks for an indefinite time period. . . .
Ms. Taylor opined that the claimant would have skills in the areas of customer service, sales, retail management, supervision, inventory control, and budget management.
Heather Taylor reported on February 15, 2008, “Although Mr. Callahan has retired, he expressed a desire to return to work at Sherwin Williams, if possible. I contacted the employer during this reporting period. The employer advised me that they do not have a permanent light duty and could not accommodate Mr. Callahan’s restrictions. Therefore, there is no return to work possibility for Mr. Callahan at Sherwin Williams.”
A pre-hearing order was filed on February 19, 2008. The claimant contended that Dr. Ricca had assessed a 17% permanent partial impairment
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rating and that Respondent No. 1 accepted 13% of the rating. The claimant contended that as a result of his injury, surgery, impairment rating, and restrictions, he should be entitled to wage-loss disability benefits. Respondent No. 1 contended, among other things, that the claimant has had numerous pre-existing problems, including high blood pressure, diabetes, a heart condition requiring stents, foot neuromas requiring surgery, and macular degeneration. Respondent No. 1 contended that if there was any wage loss, then it was due to a combination of the claimant’s pre-existing problems and his compensable injury, giving rise to Second Injury Fund liability. Respondent No. 2, Second Injury Fund, contended that it was not liable and that the claimant could not prove he was entitled to any amount of wage-loss disability. Respondent No. 2 contended that the claimant’s chemotherapy for Stage IV colon cancer prevented the claimant from pursuing gainful employment or working at any full-time job. Respondent No. 2 contended that “since this condition arose after his last work injury, its effects cannot be considered in the determination of his wage loss disability.”
An administrative law judge scheduled a hearing on the issues of the appropriate physical impairment rating, wage-loss, permanent total disability, Second Injury Fund liability, and attorney’s fees.
In a Progress Report dated March 24, 2008, Heather Taylor identified a number of potential employment positions for the claimant, including customer service representative, counter sales, and management training. Ms. Taylor
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noted, “To date, Mr. Callahan reported that he has not found a job or even gotten an interview. It remains my opinion that it may be very difficult for Mr. Callahan to return to the workforce on a full-time basis. He has excellent skills and experience and certainly qualifies for numerous job openings. However, the main barrier in him returning to work is the fact that he currently needs to miss work every other week, for a few days each week, due to his chemotherapy treatments. Mr. Callahan tells me that he will have these treatments indefinitely. The absenteeism factor will make it more difficult for employers to hire Mr. Callahan. However, Mr. Callahan said that he is willing to continue looking for a job.”
The parties deposed the claimant on May 7, 2008. The attorney for Respondent No. 1 questioned the claimant regarding his prior conditions of high blood pressure, diabetes, two heart stents in December 2004, foot surgery for neuromas, and macular degeneration. Respondent No. 1’s attorney questioned the claimant:
Q. Now, would you say that in addition to your June 3rd, 2005 injury you sustained at Sherwin Williams, many of these other conditions contribute to your opinion that you are permanently and totally disabled at this time?
A. I don’t know. I was able to do my job at Sherwin Williams. And some of these things, like the heart stents, they require no future follow-up and actually improved my health. I really don’t know how to answer your question.
Q. Well, I guess my question is, you believe that you are unable to do anything else, any other work at all because of this injury at Sherwin Williams?
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A. Yes, I do.
Q. Okay. Tell me why you think that.
A. Because of the bending, because of lifting.
I can’t sit for very long periods of time without shifting. . . . I wouldn’t want to go to work with someone if I wouldn’t be dependable. I mean, my work history has proven that I have always been there, and if I can’t do the job and make my salary, make myself an asset to the company, I’m not going to go to work for someone. . . .
Q. Did your doctor tell you that you were totally disabled?
A. Yes, he did.
Q. Permanently?
A. Yes, he did.
Q. And which doctor was that?
A. Ricca. . . .
Q. I think you told me just a few minutes ago that he released you to return to light duty work and gave you a 17 percent impairment rating. So, apparently, it was his opinion that there was some work you could do, but you are saying that you couldn’t do the work you did before?
A. He did this on my request. Okay? Because I wanted to go back to work for Sherwin Williams, but —
Q. Right.
A. We got it approved through my local store manager, through the district manager and through the Dallas division, but Cleveland called and said, “Go home.”
Q. Right.
A. And that’s the last day I worked for Sherwin Williams. . . .
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Q. Okay, Mr. Callahan, have you applied for any of the jobs that Ms. Taylor listed for you?
A. Yes, ma’am.
Q. All right. Which jobs have you applied for?
A. I have — as she sends these listings and referred through the — a lot of them — most of them are referred through the Paragould Employment Security Division. I called there to get a reference, and they have a listing or a copy of my impairment and qualifications. Several of them they will not even let me — you know that I’m not qualified to do what the employer requires. I have a list of all those that were done and the results of that here. . . .
Q. It’s my understanding that you’ve been diagnosed with colon cancer?
A. That’s correct. . . .
Q. Now, is that mainly the reason that you’re unable to obtain employment now, because of your chemotherapy?
A. Chemotherapy requires time. . . . But as far as making me feel bad, making me unable to perform any functions, no, it doesn’t. It just requires time off, anywhere from three days to four days every other week.
Q. Okay. So every other week you would be unable to work because you would be needing to have your treatments?
A. Yes, ma’am.
Q. Okay. So it would be difficult to find an employer to suit that need, I guess?
A. Yes, ma’am.
The claimant testified at deposition that he had been receiving social security disability since November 2006.
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An administrative law judge found that the claimant had sustained a 13% anatomical impairment as a result of the compensable injury; none of the parties appeal that finding. The administrative law judge found that “7. The claimant’s prior disabilities or impairments have combined with the June 3, 2005, compensable low back injury to produce the current disability status.” The administrative law judge found that the claimant was permanently and totally disabled. Respondent No. 2, Second Injury Fund, appeals to the Full Commission.
II. ADJUDICATION
A. Wage Loss
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 expected to affect his future earning capacity. Ark. Code Ann. § 11-9-522(b)(1). “Permanent total disability” means inability, because of compensable injury or occupational disease, to earn any meaningful wages in the same or other employment. Ark. Code Ann. § 11-9-519(e)(1). The burden of proof shall be on the employee to prove inability to earn any meaningful wage in the same or other employment. Ark. Code Ann. § 11-9-519(e)(2).
In the present matter, an administrative law judge found that the claimant was permanently and totally disabled. The Full Commission reverses this
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finding. The claimant, age 58 and a credible witness, testified that he had a 12th grade education and had been employed with the respondent-employer for 26 years. The claimant worked as a store manager for the respondents for 23 years and his work occasionally required manual labor, i.e., lifting heavy cans of paint. The parties stipulated that the claimant sustained a compensable injury to his back on June 3, 2005. Dr. Ricca performed low back surgery in April 2006 and returned the claimant to light work in June 2006. A Functional Capacity Evaluation on August 29, 2006 concluded that the claimant was able to perform medium work activity. The record indicates, however, that the claimant experienced difficulty in trying to return to work. Dr. Ricca noted that the claimant planned to retire on January 31, 2007.
The parties stipulated that the claimant reached the end of his healing period and attained maximum medical improvement on February 4, 2007. Dr. Ricca assigned the claimant a 17% anatomical impairment rating, but none of the parties appeal the administrative law judge’s finding that the claimant sustained only a 13% whole-body impairment rating. Respondent No. 1 has accepted a 13% anatomical impairment. Heather Taylor, a vocational rehabilitation consultant, began assisting the claimant in January 2008. Ms. Taylor began identifying jobs for the claimant in areas such as customer service and sales. The record indicates that the claimant was motivated to return to work and cooperated with Ms. Taylor in following up on job leads. The record also
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indicates that the respondent-employer would not provide light work duty for the claimant.
The Full Commission finds that the claimant proved he sustained wage-loss disability in the amount of 35%. The Functional Capacity Evaluation demonstrated that the claimant was able to perform medium work duties. Heather Taylor testified that the claimant had many transferrable skills which would enable the claimant to rejoin the work force in employment that fit within the claimant’s physical restrictions. The claimant underwent a laparotomy for a mesenteric mass and was diagnosed with carcinoma in January 2007. The claimant testified that he is undergoing periodic chemotherapy treatment for a cancerous condition. This treatment requires the claimant to be off from work for three to four days every other week. However, the claimant’s chemotherapy treatment is not causally related to the compensable injury, surgery, resulting impairment, or wage-loss disability. The claimant testified that his bi-weekly chemotherapy was a primary impediment to a return to work.
B. Second Injury Fund
Liability of the Second Injury Fund comes into question only after three hurdles have been overcome. First, the employee must have suffered a compensable injury at his present place of employment. Second, prior to that injury the employee must have had a permanent partial disability or impairment. Third, the disability or impairment must have combined with the recent compensable injury to produce the current disability status. Mid-State Constr.
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Co. v. Second Injury Fund, 295 Ark. 1, 746 S.W.2d 539 (1988). A claimant’s non-work related condition suffered prior to the recent compensable injury need not have involved a loss of earning capacity Mid-State, supra.
Although the Full Commission in the present matter does not affirm the administrative law judge’s finding of permanent and total disability, we affirm the finding that the Second Injury Fund is liable for benefits. The first hurdle for Second Injury Fund liability has been overcome, in that the claimant suffered a compensable injury at his present place of employment. We find that the second hurdle has been overcome as well. The claimant suffers from a impairment to both eyes, as first reported by Dr. Elfervig in January 2000. Dr. Ganong reported in 2003 that the claimant suffered from conditions including hypertension, coronary artery disease, and macular degeneration. Abnormalities in the claimant’s heart were confirmed by a cardiology study in August 2004. The claimant underwent cataract surgery in the right eye in December 2004, but in December 2006 Dr. Elfervig reported that macular degeneration still existed in the claimant’s right eye. Heather Taylor essentially took note of the claimant’s prior disability and impairment as a part of her vocational assistance.
We find that the claimant’s prior disability and impairment combined with the recent compensable injury to produce the current disability status. The claimant testified that he still suffered from occasional shortness of breath as a result of his cardiac condition. The claimant’s night vision is limited due to his macular degeneration, as is the claimant’s ability to improve his work skills
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through a typing or keyboarding class. The Full Commission finds that the Second Injury Fund should be liable for the claimant’s wage-loss disability.
Based on our de novo review of the entire record, the Full Commission finds that the claimant proved he sustained wage-loss disability in the amount of 35%. Respondent No. 2, Second Injury Fund, is liable for the 35% wage-loss disability. The claimant’s attorney is entitled to fees for legal services in accordance with Ark. Code Ann. § 11-9-715(Repl. 2002). For prevailing in part on appeal, the claimant’s attorney is entitled to an additional fee of five hundred dollars ($500), pursuant to Ark. Code Ann. § 11-9-715(b) (Repl. 2002).
IT IS SO ORDERED.
______________________________ A. WATSON BELL, Chairman
______________________________ KAREN H. McKINNEY, Commissioner
Commissioner Hood concurs dissents.
CONCURRING DISSENTING OPINION I must respectfully concur, in part, and dissent, in part, from the majority opinion. After a de novo review of the record, I specifically concur that the claimant is entitled to wage-loss disability benefits in the amount of 35%. However, as I would award the claimant permanent and total disability benefits, I must dissent on this issue.
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While the analysis required in a claim for permanent and total disability is similar to that conducted to determine wage loss disability, it is not the same. See Rutherford v. Mid Delta CommunityServices, Inc. ____ Ark. App.___, ___ S.W. 3d ___ (2008). Wage loss disability is defined as the extent to which a compensable injury has affected the claimant’s ability to earn a livelihood. Lee V. AlcoaExtrusion, Inc., 89 Ark. App. 228, 201 S.W.3d 449 (2005). In determining wage-loss disability, in addition to the percentage of permanent physical impairment, the Commission may take into consideration such factors as the claimant’s age, education, work experience, and other matters reasonably expected to affect his or her future earning capacity. Ark. Code Ann. § 11-9-522 (b)(1). Such other matters include motivation, post-injury income, credibility, demeanor, and a multitude of other factors. Glass v. Edens, 233 Ark. 786, 346 S.W.2d 685 (1961). Permanent total disability is defined as inability, because of compensable injury or occupational disease, to earn any meaningful wages in the same or other employment. Ark. Code Ann. § 11-519 (e)(1). The burden of proof shall be on the employee to prove inability to earn any meaningful wage in the same or other employment. Ark. Code Ann. § 11-519 (e)(2). The same factors considered when analyzing wage loss disability claims are usually considered
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when analyzing permanent and total disability claims. See Ark. Code Ann. § 11-9-519 (c); Rutherford, Supra.
Here, the claimant has proved by a preponderance of the evidence that he is unable to earn any meaningful wage in the same or other employment, and is therefore, entitled to permanent and total disability benefits.
For the aforementioned reasons I must respectfully concur in part, and dissent in part.
______________________________ PHILIP A. HOOD, Commissioner
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