CLAIM NO. E210505
CHARLES CAMPBELL, EMPLOYEE, CLAIMANT v. CUNNINGHAM METALS, EMPLOYER, RESPONDENT and WAUSAU INSURANCE COMPANIES, INSURANCE CARRIER, RESPONDENT
Before the Arkansas Workers’ Compensation Commission
OPINION FILED JUNE 10, 1997
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE LAURA J. McKINNON, Attorney at Law, Fayetteville, Arkansas.
Respondents represented by the HONORABLE MICHAEL VANDERFORD, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed.
[1] OPINION AND ORDER
[2] The claimant appeals an opinion and order filed by the administrative law judge on August 14, 1996. In said opinion, the administrative law judge found that the claimant suffered an admittedly compensable injury to his back on May 22, 1992. As a result of that injury, the respondents paid to him certain medical and disability benefits. Subsequently, the claimant filed a claim requesting certain additional temporary and permanent disability benefits. At the hearing, the administrative law judge held that the claimant was not entitled to any additional temporary or permanent disability benefits. The claimant has appealed that decision. Based on a de novo
review of the record as a whole, we find that the decision should be affirmed.
[3] At the time of his injury, the claimant was approximately 40 years old and had been employed by the respondents for the past four years. The respondents’ business was a salvage yard and scrap metal operation. The claimant’s employment duties included tasks such as mechanic, truck driver, equipment operator and related jobs. The claimant’s employment history involved similar jobs both as an auto mechanic, truck driver, forklift operator, and other types of equipment operation. The claimant alleges that as a result of his injury, he is no longer able to do any heavy lifting, and will not be able to function in any of those occupations. The claimant testified that he is presently a self-employed brick layer earning substantially less income than when employed by the respondents. In his testimony, the claimant stated that he was forced to hire additional help in his business because he was unable to do some of the lifting normally required to perform jobs as a brick layer.
[4] The claimant was initially seen by Dr. Ted Honghiran, an orthopedic surgeon in Russellville, Arkansas. Dr. Honghiran released the claimant to return to work in June 1992. The claimant contends that he was still within his healing period at this time. However, the claimant did apparently return to work for the respondents in late June or early July of 1993. The testimony was not entirely clear as to whether the claimant was working on restricted duty during this time or if he was doing his normal job duties. However, it is not disputed that the claimant was terminated from further employment on September 24, 1992, as a result of alleged misconduct on his part.
[5] The claimant also received treatment from numerous other physicians, most extensively from Dr. Glen Marshall, a board eligible neurologist, in Russellville, Arkansas. Dr. Marshall eventually referred the claimant to an extensive physical rehabilitation treatment program at Priority Industrial Physical Therapy and Sports Rehab Center in Russellville, Arkansas. The records reflect that the claimant was treated some 88 times at this physical therapy center between October 1992 and May 1993. This program involved a significant amount of physical exercise, stretching, and other activities designed to improve the claimant’s overall physical condition, assist in weight loss, and facilitate return to work activities. In a narrative report dated May 5, 1993, Mr. Bryan Williamson, the physical therapist supervising the claimant’s treatment, indicated that the claimant had demonstrated the ability to perform vigorous physical activity for 60 to 90 minutes with no complaints. Mr. Williamson opined that the claimant was able to return to work based upon the claimant’s ability to correctly perform work simulation activities and do exercise with significant intensity for long periods of time without noticed physical discomfort or complaints of pain. In statements given to the claimant’s attorney, dated November 2, 1994 and April 27, 1995, Dr. Marshall stated that he had released the claimant from his care on June 9, 1993.
[6] The first issue that must be determined in this case is the claimant’s entitlement to temporary total disability benefits. The claimant has alleged that he was totally disabled and was within his healing period from June 9, 1993 to September 14, 1993. However, the parties stipulated that the claimant received unemployment benefits from September 26, 1992 through October 23, 1993. Since this injury occurred prior to the effective date of
Act 796 of 1993, the claimant’s entitlement to benefits are governed by the law in effect prior to July 1, 1993. However, even the statutes then in effect precluded a claimant from drawing both unemployment benefits and temporary total disability benefits for the same period. Ark. Code Ann. §
11-9-506. Since even the medical reports most favorable to the claimant indicate that he was at the end of his healing period by September 24, 1993, we specifically find that the claimant is not entitled to receive any temporary total disability benefits.
[7] Even if the claimant’s receipt of unemployment benefits is not considered, we find that the claimant would not be entitled to TTD benefits during the period in question. As indicated above, Dr. Honghiran had released the claimant to return to work in June of 1992. The claimant did in fact return to work in July of that year. The claimant remained employed full time, at the same wages, until the claimant was terminated on September 24, 1992. While the claimant testified that he was not operating some of the equipment that required heavy lifting, as he had been doing prior to his return to work, he did indicate that he was changing tires and doing other similar manual labor after his return to work in July 1992.
[8] The claimant’s termination was based upon his removal of scrap material and other items from his employer’s property without giving them advance notice. Apparently, it was common practice with the claimant and other employees of the respondents’ to occasionally purchase scrap metal and other items from the respondents. The claimant stated that it was his practice to remove these items and later return with payment. At the hearing, Denise Cunningham, a co-owner of the business testified that she had personally advised the claimant, on more than one occasion, not to remove items from the premises before purchasing them without notifying either her or her husband. The claimant admitted during his rebuttal testimony that he had received written warnings in the past at least one of which was for an incident involving such a removal of property. While the claimant testified that the written warning he received was unjustified because the incident involved his brother, it is nonetheless clear that the claimant should have been aware that his employer did not approve of him removing items from their place of business prior to purchasing them.
[9] The claimant attempted to characterize his termination as being in the form of retaliation for having sought workers’ compensation benefits. However, the claimant also admitted that during his employment with the respondents, he had suffered two previous job-related injuries, neither of which had resulted in any disciplinary action directed at him. We find that the claimant’s termination was clearly for cause and not in the nature of any retaliation or intimidation for having sought workers’ compensation benefits. We also find that the claimant was not totally disabled any time after his termination. Not only had the claimant been working full time prior to his termination, but he continued to undergo a relatively rigorous program of physical conditioning at the direction of Dr. Marshall. We therefore find that the claimant was terminated for cause by the respondents, and that in all periods after September 24, 1992, the claimant was not totally incapacitated from earning wages as required by Ark. Code Ann. § §
11-9-501.
[10] The next issue that must be addressed is the claimant’s entitlement to permanent disability benefits. The claimant asserts that he is entitled to an anatomical impairment rating of 10% to the body as a whole. This contention is based upon a statement from Dr. Marshall to the claimant’s attorney dated April 27, 1995. In a fill-in-the-blank form that the claimant’s attorney sent to Dr. Marshall, Dr. Marshall indicated that the claimant had been released from his care on June 9, 1993, with a 10% impairment rating. However, this statement is in contrast to an identical form filled out by Dr. Marshall on November 2, 1994, in which he indicated that the claimant did not have any permanent disability. The claimant was also seen on a consultative examination by Dr. Edward Saer, a neurosurgeon in Little Rock, Arkansas. Dr. Saer stated in a report dated January 3, 1995, that the claimant had a 5% impairment to his whole body. However, Dr. Saer indicated that he had only seen the claimant one time and that this impairment rating was based solely on that single examination.
[11] On the other hand, Dr. Alice Martinson, an orthopedist in Berryville, Arkansas, Dr. James Kolb, a Russellville orthopedist, Dr. Ted Honghiran, another Russellville orthopedist, and Dr. Russell Hall, a chiropractic physician who also treated the claimant, were all of the opinion that the claimant did not have any permanent impairment from his injury. We also note that the MRI results that are set out in the record detected only degenerative changes in the claimant’s spine, and very slight disc bulges that were not impinging upon the spinal cord.
[12] In short, the claimant is relying entirely upon the statement from Dr. Marshall that the claimant had a 10% impairment to his whole body. However, that particular statement does not set out any basis or opinion from the doctor as to how that decision was arrived at and is contradicted by a previous statement from his doctor. Also, every other doctor who has treated the claimant either has not given an impairment rating or has affirmatively stated that the claimant did not have any permanent disability from this injury. We find that neither Dr. Marshall’s or Dr. Saer’s opinions are based on objective findings and are therefore insufficient to support an award of permanent disability benefits. On that basis, we believe that the administrative law judge was correct in finding that the claimant did not establish by a preponderance of the evidence that the claimant suffered any permanent impairment as a result of his injury.
[13] The claimant also asserts that he is entitled to benefits for wage loss disability. In his brief, the claimant argues that a finding of anatomical impairment is not necessary to make an award of wage loss disability. In support of that contention, several cases are cited. However, the claimant has misunderstood an important distinction in those cases. While cases such as Johnson v.General Dynamics,
46 Ark. App. 188,
878 S.W.2d 411 (1994), and others, have held that a claimant can be awarded wage loss disability with no anatomical impairment rating, all of those cases have held that the claimant did have some permanent impairment. In other words, a claimant can be awarded wage loss disability if he or she has permanent impairment even if the permanent impairment is not rateable. However, such is not the case here. Since the claimant is not able to establish that he suffered some permanent impairment from his injury, then he is not entitled to an award of any benefits for wage loss disability.
[14] For the above reasons, we find that the claimant failed to meet his burden of establishing by a preponderance of the credible evidence that he is entitled to temporary or permanent disability benefits. Accordingly, this claim is hereby denied and dismissed.
[15] IT IS SO ORDERED.
ELDON F. COFFMAN, Chairman MIKE WILSON, Commissioner
[16] Commissioner Humphrey dissents.
