CLAIM NO. E517310
Before the Arkansas Workers’ Compensation Commission
ORDER FILED JANUARY 19, 2001.
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE GARY DAVIS, Attorney at Law, Little Rock, Arkansas.
Respondent represented by the HONORABLE A. GENE WILLIAMS, Attorney at Law, Little Rock, Arkansas.
Decision of the Administrative Law Judge: Affirmed.
OPINION AND ORDER
The respondents appeal an opinion and order filed by the administrative law judge on August 10, 2000. In that opinion and order, the administrative law judge found that the claimant has sustained a 20% permanent decrease in his wage-earning capacity in excess of his 26% permanent anatomical impairment established by the medical evidence. After conducting a de novo review of the entire record, we find that the administrative law judge’s decision must be affirmed.
The claimant sustained an injury to that portion of his body which is not scheduled under the Act. Therefore, the claimant’s entitlement to permanent disability benefits is controlled by Ark. Code Ann. §11-9-522. Permanent disability compensation is paid where the permanent disability effects of a work-related injury incapacitate the worker from earning the wages which he was receiving at the time of the injury. When making a determination of 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 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 946
(1984). Curry v. Franklin Electric, 32 Ark. App. 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).
In considering the factors which may affect an employee’s future earning capacity, the Commission may consider the 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 v. Guess, 10 Ark. App. 313, 663 S.W.2d 946 (1984).
In the present case, the claimant was injured on November 17, 1995, while laying pipeline at a construction site. The trench where the claimant was working caved in. The claimant sustained a crush injury to his pelvis and an injury to his urethra. By April 1, 1996, Dr. Charles Clark, the claimant’s treating orthopedist, determined that there was no further treatment indicated for the claimant’s pelvis fracture, and Dr. Clark at that time anticipated that the claimant would not sustain any permanent impairment from the pelvis fracture. However, Dr. Clark ultimately assigned the claimant an 8% impairment to the whole body for the claimant’s pelvis injury, and that impairment rating is not in dispute.
As regards the claimant’s urinary complication, the claimant initially required a urethral tear repair surgery on July 30, 1996. The claimant underwent a second surgery to correct a urethral stricture in October of 1996. The claimant requires self-catheterization on an as-needed basis, and the claimant has been assigned a 9% impairment to the whole body due to urethral stricture. This impairment rating is not in dispute. In addition, the claimant has sustained a 9% impairment to the whole body for the sexual dysfunction.
On appeal, the respondents and the dissent suggest that the claimant has not experienced any permanent restrictions for work as a result of his pelvic injury, urethral injury and required self-catheterization. The respondents assert that the reason the claimant no longer performs construction work is probably because there is no construction work in the area. We are not persuaded by these arguments for the following reasons. The claimant’s credible testimony establishes that the claimant is no longer working in construction because of right hip, pelvic and low back pain which interferes with his ability to perform required standing, bending, lifting and other duties required in construction. In fact, the claimant did attempt to return to work in construction for a couple of months at a site in Monticello but could no longer do some of the labor required. The claimant then sought and obtained more sedentary work sitting and monitoring juveniles at the Phoenix Youth Services in Dermott (where he currently makes $13,000 per year verses $20,000 per year in pre-injury construction). In short, the greater weight of the evidence indicates that the claimant has shown strong motivation to return to work, and the greater weight of the evidence indicates that the relevant factor preventing the claimant from returning to construction is the nature of the work and the nature of his injury, not the availability of work in the area as the respondents suggest.
In addition to these limitations on his return to work in construction, the claimant also requires self-catheterization one to three times per week as a result of his urological condition. In addition, the claimant at times experiences bladder spasms, and he will experience an abnormal thickening of his urine if he works in the heat without adequate water. The claimant also at times feels the need to urinate but an inability to do so.
The claimant is young, at 42 years old, and educated with a four-year college degree in industrial technology from the University of Arkansas at Pine Bluff. However, industrial technology emphasizes aspects of construction, and as discussed, a preponderance of the evidence establishes that the claimant has in fact experienced physical limitations restricting his return to construction.
After considering the claimant’s age, education, work experience, the nature and extent of his injury, his pre-injury and post-injury earnings, and all other relevant factors, we find that the preponderance of the evidence establishes that the claimant has experienced a 20% impairment to his wage-earning capacity in excess of the 26% permanent anatomical impairment established by the medical evidence. Therefore, we find that the administrative law judge’s decision must be, and hereby is, affirmed.
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, 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
_______________________________ SHELBY W. TURNER, Commissioner
DISSENTING OPINION
I respectfully dissent from the majority’s opinion finding that the claimant is entitled to a twenty percent (20%) loss in wage earning capacity. 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.
Considering the claimant’s age, education, work experience, the nature and extent of his injury, his pre-injury and post-injury earnings, and all other relevant factors, I cannot find that the claimant experienced a twenty percent (20%) impairment in his wage earning capacity in excess of the twenty-six percent (26%) permanent anatomical impairment rating. The evidence shows that the claimant is forty (40) years old and has a bachelor’s degree in industrial technology. The claimant worked in construction in the Dermott area, where he lived, because he wanted to stay in that area.
Further, the medical evidence fails to establish that the claimant has any permanent restrictions. Dr. Charles Clark, the claimant’s treating orthopedist, released the claimant from his care on April 1, 1996, stating:
The pelvis fracture has gone on to heal. He can walk normally. Leg lengths are equal. He does have some overlapping of the fracture fragments of the superior ramus, but this has gone on to heal in acceptable position. There is no further treatment indicated . . . I am going to release Michael at this point and time . . . I do not believe there will be a partial/permanent impairment rating associated with this portion of the injury.
On February 5, 1997, Dr. Clark stated:
However, repeat x-rays of the pelvis today show the fx is entirely healed. The symphysis pubic is entirely calcified and solid at this point and time. Hip joint is normal and the remainder of the bone is well healed.
On PROM [passive range of motion] of the hip, this is not particularly painful. When I palpate the ischial tuberosity and the pubic symphysis, there is an area of some tenderness, but not severe. He has a 5 mm leg length discrepancy secondary to the pelvis fx that is well healed at this time. He is NVI [neurovascularly intact]. No other significant problems.
Dr. Clark assigned the claimant with an eight percent (8%) impairment rating at that time, but failed to note any restrictions due to the claimant’s healed pelvic fracture.
Dr. MacDiarmid, the claimant’s treating neurologist, noted in a report dated April of 1998:
He passes a catheter initially once daily but now approximately two times per week to keep the anastomosis open. This dilatation protocol has worked very well for him. He is voiding normally and he has not had a recurrent stricture since the internal urethrotomy.
Michael’s second problem is mild to moderate erectile dysfunction . . . In spite of having these two urologic problems, they should not limit his work or his activities of daily living and he can regain normal physical activity.
This evidence clearly shows that the claimant does not have any restrictions in his work activities due to his compensable injury. Therefore, considering all the wage loss factors, it is evident that the claimant is not entitled to any wage loss, much less a twenty percent (20%) loss in wage earning capacity. Accordingly, I dissent from the majority’s opinion awarding these benefits.