CLAIM NO. D201010
Before the Arkansas Workers’ Compensation Commission
OPINION FILED FEBRUARY 15, 2000
Upon review before the FULL COMMISSION in Little Rock Arkansas.
Claimant represented by the HONORABLE EDDIE WALKER, JR., Attorney at Law, Fort Smith, Arkansas.
Respondent represented by the HONORABLE WILLIAM G. BULLOCK, Attorney at Law, Texarkana, Texas.
Decision of the Administrative Law Judge: Affirmed.
OPINION AND ORDER
The respondent appeals an opinion and order filed by the Administrative Law Judge on June 23, 1999. In that opinion and order, the Administrative Law Judge held that claimant is permanently and totally disabled by virtue of the odd lot doctrine. It was also determined that respondents controverted all permanent benefits in excess of 77.6% to the whole body. Moreover, the Administrative Law Judge awarded claimant additional medical supplies. After our de novo review of the entire record, we specifically find that the odd lot doctrine is applicable to this claim, and claimant proved by a preponderance of the credible evidence that he is permanently and totally disabled. Moreover, we find that claimant proved entitlement to additional medical supplies. Finally, we find that respondents controverted all permanent benefits in excess of 77.6% to the body as a whole. Accordingly, the Full Commission affirms the Administrative Law Judge’s decision.
Claimant’s compensable injury occurred in 1982 as he was lifting skids. With respect to the injury mechanics, claimant offered the following testimony:
I come in on the graveyard shift, which started at 11:00 o’clock, on January 4, 1982. I went to my work station, which I worked #5 and #6 wigwag. I started my job duties. I started to lift my iron skids that I was supposed to put at each station to do my job, and several of them stuck together. I just come up with them to do my job, to put them in their right position for the rubber to stack on top of, and I felt something give in my back.
Claimant testified that initially, he received medical treatment from Dr. Harrell, the company physician. He stated that Dr. Harrell made a referral to Dr. George L. Bohmfalk, a neurosurgeon. The first medical report contained in the record is dated about one year after the work-related injury. However, Dr. Bohmfalk prepared a narrative summary of claimant’s medical history, which is contained in a letter to Dr. Jorge Martinez dated June 5, 1992. The summary provided in part:
Myelography showed a normal lumbar situation but an almost complete block at C-5-6 with marked narrowing of the interspace at 6-7, especially representing spontaneous fusion.
He was taken on to the operating room on 2-22-82, for removal of an enormous osteophyte that was compressing the cord. Postoperatively, he did extremely well, up walking with great improvement the evening of operation, and resolution of this numb sensation.
Despite his functional improvement, he remained with the hyperreflexia. He persisted with a little weakness and use of his little finger and some generalized interosseous weakness on the right along with some slight loss of triceps power on the left.
In a chart note dated February 8, 1983, Dr. Bohmfalk assigned an impairment rating of 50% to the whole body. Moreover, he commented on claimant’s return to the work force:
I think he is probably about to plateau with respect to his improvement and therefore what he has now within small limits is probably going to be permanent. I think this will limit him from any sort of strenuous work involving much in the way of balance or stability standing up. I think he can work at a sit down job that will require maybe getting up to maybe carry light objects around from place to place, but he should fundamentally be restricted to sitting type work. This he can resume immediately. . . .
Claimant testified that after Dr. Bohmfalk released him, he attempted to return to work for respondent employer. However, respondents refused to furnish a job. At the time of the injury, claimant’s annual earnings totaled about $40,000.
In an effort to secure employment, claimant consulted the Texas Rehabilitation Commission. Through the Job Training Partnership Act (J.T.P.A.), claimant was assigned to work at the Texarkana Sheltered Workshop. Initially, claimant performed odd jobs at a table. He testified that he was offered a supervisory position in 1984. Claimant accepted the offer, and he continued to work for this employer until October of 1995. At the time of his termination, claimant was working as Transportation Coordinator, and earning approximately $16,000-$18,000 yearly. He testified that he was terminated as a result of reduction in force.
The record showed that claimant returned to Dr. Bohmfalk in 1989. According to his chart notes, a myelogram was performed on August 22, 1989. That test revealed “a new ventral bar or disc herniation that is causing a partial block.” The abnormality was at C3-4; however, surgery was not performed. Claimant stated that in 1992, he consulted Dr. Jorge Martinez. He testified that his condition deteriorated during his employment. Claimant stated that he had difficulty remaining seated for extended time periods, and discussed this with his supervisor. Prior to his employment separation, claimant informed his workshop supervisor that another surgical procedure was planned.
A dispute arose regarding claimant’s entitlement to additional medical treatment by Dr. Martinez. This matter was litigated, and claimant prevailed. In a chart note dated April 22, 1996, Dr. Martinez wrote that claimant had weakness in his upper and lower extremities. He also described lumbrosacral pain as well as difficulty with balance. Dr. Martinez’s chart note reflected that he diagnosed spinal canal stenosis in 1992. He recommended cervical and lumbar spine MRI’s and a cervical spine x-ray series. In a chart note dated May 1, 1996, Dr. Martinez commented on the results of claimant’s cervical MRI, stating that it showed “evidence of severe spinal canal stenosis at the level of C3-4, C4-5 with significant compression of the spinal cord.” The x-rays demonstrated the presence of “severe cervical myelopathy.” Based on the test results, Dr. Martinez recommended an “anterior cervical discectomy at C3-4, C5-6 and corpectomy of the vertebral body of C4 with fusion from C3 to C5 with iliac crest graft augmented with Codman plates.” Surgery was done on May 14, 1996.
After surgery, Dr. Martinez documented the continuation of claimant’s gait difficulties, noting that he needed a walker to ambulate due to weakness and spasms in the lower extremities. He prescribed medication and several months of physical therapy. Dr. Martinez noted claimant’s use of a quad cane. Although claimant’s healing period ended on May 19, 1997, Dr. Martinez’s supplementary report for that date stated:
The patient indicates he has not noticed any significant changes since the last office visit. He still has spastic gait, poor coordination, lack of balance, neck pain, discomfort in the anterolateral aspect of the cervical region, intermittent parasthesis in the upper and lower extremities. Patient requires the use of a quad cane for assistance. Therapy seems to be helping.
In a letter dated May 21, 1997, Dr. Martinez noted some improvement. He qualified his remark, stating that: “But, by all means, [claimant] still has significant impairment on his coordination requiring him to use assistive aids such as a quad cane.” Dr. Martinez indicated that the surgery was performed mainly “to prevent progressive deterioration of the cervical myelopathy.”
A functional capacity assessment was done on November 3, 1998. On November 5, 1998, Dr. Green furnished respondent carrier with a report of the examination. In his report, Dr. Green incorrectly noted that claimant last worked in 1982. In any event, he confirmed that claimant has difficulty ambulating, and must use a quad cane. Nevertheless, he opined that “claimant should be able to perform sedentary work based on the Dictionary of OccupationalTitles.” Dr. Green described claimant’s limitations as follows:
His maximum lift should be 20 pounds, and his frequent lift should be 10 pounds. He can sit and stand for 30 minutes with appropriate rest. He can walk 1/2 block and climb 1 flight of stairs. He can kneel, bend and twist occasionally. He should not work at unprotected heights. He should not climb ladders or scaffolding. He cannot perform overhead work. He can work at a sitting type of job only, and cannot work at a job where he has to walk long distances to get to his work station.
Dr. Green increased claimant’s impairment rating to 55% to the whole body.
Claimant was involved in a MVA on May 26, 1998. After emergency room care, claimant received follow-up treatment for his elbow from Dr. John R. Gregory. Those notes show that claimant struck his left elbow in the accident. Claimant testified that surgery was ultimately performed on his elbow to remove a spur. He stated that the accident did not affect his work-related injury.
Claimant contends that he is permanently and totally disabled pursuant to the odd lot doctrine. According to that doctrine, an employee may be classified as totally disabled if he is injured to the extent that he can only perform services that are so limited in quality, dependability, or quantity that a reasonably stable labor market fails to exist. Hyman v. Farmland Feed Mill, 24 Ark. App. 63, 748 S.W.2d 151 (1988).
Claimant is forty-seven years old. He did not complete the twelfth grade. He never obtained a G.E.D. Prior to his employment with respondents, claimant worked for Rockwell International. He was twenty-nine when the injury occurred. Claimant’s employment is limited to two private employers and a sheltered workshop. Although claimant worked in a supervisory capacity, he did so in a structured environment.
Claimant testified that he is unable to sit for extended time periods. He stated that he has difficulty with balance, and falls periodically as a result. Claimant stated that as a result of his balance problem, working near machinery would be hazardous. He testified that his concentration is poor. Claimant stated that he is able to stand in thirty-minute increments. He testified that he can walk no further than the length of a football field. Claimant added that he has difficulty climbing stairs. He testified that after riding in a car for forty-five minutes, he must stop the car and walk for a time. He uses a cane, a fact which the Administrative Law Judge documented in his opinion.
Based on the foregoing evidence regarding claimant’s age, education, training, work history, permanent anatomical impairment, as well as his credible testimony with respect to his physical limitation and restricted daily activities, we find that claimant has presented a prima facie case that he falls within the odd lot category, thereby shifting to respondents the burden of going forward with evidence that some kind of work is regularly and continuously available to claimant. M.M. Cohn v. Haile,267 Ark. 734, 589 S.W.2d 600 (Ark.App. 1979).
In reaching our decision, we are mindful of the opinion rendered by Dr. Green. First, Dr. Green simply stated that claimant “should” be able to engage in sedentary work. More important, it is our view that Dr. Green’s assessment is simply unrealistic for claimant. His limitations with respect to ambulating are substantial. Claimant simply does not have the education level to secure the type of job Dr. Green has recommended. Since his compensable injury, the only work that claimant has performed has been within a structured environment.
There is no evidence that suitable work is regularly and continuously available, and claimant’s “future job prospects are negligible.” See, Lewis v. Camelot Hotel, 35 Ark. App. 212, 816 S.W.2d 632 (1991). Respondents refused to return claimant to work. The Texas Rehabilitation Commission identified just one employment opportunity for claimant. It is significant that as early as 1983, no job could be found for claimant within the competitive labor market. When claimant consulted the Texas Commission, he had been restricted to sedentary work, and assigned an impairment rating of 50% to the body as a whole. Utilizing the J.T.P.A., he was placed in a sheltered workshop, and his employment continued until 1995. During his workshop employment, claimant requested vocational rehabilitation benefits. However, this request was denied. Respondents offered no evidence whatsoever to overcome claimant’s prima facie case. We therefore find that claimant has proven by a preponderance of the evidence that he is permanently and totally disabled.
Claimant also contends that he is entitled to a mattress and a stationary bicycle. The record showed that both items have been prescribed by Dr. Martinez. Claimant is 6’5″, and requires a special mattress. He explained that the mattress will enable him to stretch out with greater ease. Respondents contend that the mattress request is a personal preference due to claimant’s height. However, claimant testified that prior to his compensable injury, he did not need a special mattress. It is the contention of respondents that a stationary bicycle was furnished to claimant. However, claimant disputed this assertion. Documentary evidence showed that the bicycle was prescribed by Dr. Martinez on October 14, 1996. No payment records were introduced but respondents offered the testimony of respondent employer’s benefits manager, Ricky Norton. He stated that he participated in a conversation with claimant and another employer representative in 1990. During the course of that discussion, claimant asked when the bicycle would be paid for, and he was informed that payment had been remitted. However, Mr. Norton conceded that he had no direct knowledge as to whether respondents ever furnished claimant with a bicycle.
In our opinion, there is insufficient evidence to prove that respondents furnished a stationary bicycle. We specifically find that the bicycle as well as the mattress as prescribed by Dr. Martinez are reasonably necessary for the treatment of claimant’s compensable injury.
Prior to the hearing before the Administrative Law Judge, the parties agreed that respondents have paid permanent partial disability benefits in excess of the original anatomical impairment rating of 50% to the whole body. Inexplicably, respondents continued claimant’s permanent partial disability benefits after their obligation for the impairment rating was satisfied. At the time of the functional capacity assessment, claimant received an additional anatomical impairment rating of 5% to the whole body. Respondents have accepted permanent benefits totaling 77.6 to the whole body, and most of this has been paid. It is the position of respondents that claimant is not entitled to permanent and total disability benefits. Based on the evidence, we find that respondents controverted claimant’s entitlement to benefits in excess of 77.6% to the whole body.
Therefore, after conducting a de novo review of the entire record, and for the foregoing reasons, we find that claimant is permanently and totally disabled pursuant to the odd lot doctrine. In addition, we find that respondents controverted all permanent benefits in excess of 77.6%. Finally, we find that claimant is entitled to receive the medical supplies recommended by Dr. Martinez. Accordingly, we find that the opinion of the Administrative Law Judge must be affirmed. All accrued benefits shall be paid in a lump sum without discount and with interest thereon at the legal rate from the date of the opinion of the Administrative Law Judge. 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.
IT IS SO ORDERED.
______________________________
PAT WEST HUMPHREY, Commissioner
Chairman Coffman concurs.
CONCURRING OPINION
I concur with the principal opinion’s findings. I write separately only to present several observations regarding the permanent and total disability issue. First, I have serious reservations as to whether the claimant’s degenerative neck problems which required two surgeries are all, in fact, related to his original work-related injury. However, since the neck problems that I am referring to were litigated before prior Commissioners, and since the respondents have now paid a 55% anatomical impairment rating for those problems, that issue is clearly not before us.
The medical condition for which we are awarding wage loss benefits is very severe. The claimant has not only undergone significant neck surgeries as noted by the principal opinion, but he also has experienced permanent long track signs, which Dr. Green noted equates to a 40% whole person impairment under Table 73 of the AMA Guides, 4th Ed. Clearly, this is a very serious type of impairment in excess of the other physical restrictions caused by the claimant’s surgeries and fusions which make up the remainder of the claimant’s overall 55% anatomical impairment rated to the body as a whole. After considering the claimant’s age, limited education and limited work experience, the severity of his medical condition and limitations, and all other relevant factors, it appears to me that the facts in this case are at least as compelling, and arguably much more compelling than the facts presented in Buford v. Standard Gravel Co., 68 Ark. App. 162, ___ S.W.2d ___ (Dec. 1, 1999), where the Court recently reversed a majority of the Full Commission and found that Mr. Buford came within the odd-lot category. In my opinion, if Mr. Buford came within the odd-lot category, then certainly the claimant in the present case came within the odd-lot category.
_______________________________
ELDON F. COFFMAN, Chairman
Commission Wilson dissents.
DISSENTING OPINION
I respectfully dissent from the majority opinion in this case. The records amply supports an award of 77.6% permanent disability, but does not support a finding of permanent and total disability. Furthermore, the record is insufficient to prove by a preponderance of the evidence that claimant is entitled to a new stationary bicycle or a long mattress.
Claimant, at 47 years of age, is of relatively young age, has good work experience and education, and has been evaluated as able to perform a sedentary position. The record indicates that claimant could procure wages if he were so inclined. I would recommend a wage loss of 77.6%, inclusive of his whole body impairment rating.
In terms of his mental capacity and experience, claimant lacked one test to complete his high school education, had seven and one half years of experience in machine fitting and shipping and receiving, and three years’ experience with respondent performing piece work. While employed at the Sheltered Workshop, claimant worked his way up from a client to a supervisor to a transportation supervisor. Claimant agreed that during this time, he developed skills in desk work, paper work, observing employees, directing employees’ work, assigning and monitoring job responsibilities, transporting clients to jobs, developing relationships with clients, representation of employer in public, monitoring behavior, overseeing property, supervision, and skills evaluation.
Claimant’s motivation to work, while an employee of respondent, is undoubted. Likewise after his first surgery, claimant explained that he looked for work and accepted a place at the Sheltered Workshop because he felt he was too young not to work. (I do note that the record indicates that claimant was turned down for disability benefits at that time as well.) However, at the time of the hearing in this matter, claimant’s motivation to return to work is questionable. Since he last sought work, through the Texas Rehabilitation Commission, when he was placed at the Sheltered Workshop, claimant has not looked for further employment, despite his layoff from the workshop and his subsequent lawsuit attempting to return him to his workshop job. Claimant stated that he has not prepared a resume, sought help from the employment office, made any calls, filled out any applications or responded to any advertisements. In fact, claimant is currently receiving Social Security disability benefits. Claimant stated that if the Texas Rehabilitation Commission could find him nothing other than his job at the workshop, he did not believe that he could do any better. However, he went to the commission in 1983, and in 1996 did not think he could find a job, despite his years of supervisory and management experience. Claimant stated that he did not think a job exists that he could perform, however, he has not put out any effort to discover whether any such jobs exist.
Claimant underwent a functional capacity evaluation on November 3 or 5, 1998. He was given a 55% whole person impairment. The report stated that claimant could perform sedentary work, with maximum lifting of 20 pounds and frequent lifting of 10 pounds. He is able to sit or stand for thirty minutes at a time with rest. He may walk one-half block and climb one flight of stairs. He may kneel bend and twist occasionally. Claimant may not walk at unprotected heights, or on ladders or scaffolding or overhead. He requires a sitting job, with no long walking distances to get to his station. At the hearing claimant asserted that he can walk the length of a football field but no further.
There is no doubt that claimant has suffered a permanent disability, but I do not believe he has proven by a preponderance of the evidence that he has suffered a total disability. He has developed a wide range of skills and has the functional capacity and experience to perform a variety of sedentary jobs. Claimant’s limitations could be accommodated with relative ease. I would assign claimant a wage loss of 77.6 inclusive of his whole person impairment of 55%.
Claimant also sought a replacement stationary bicycle, however, I cannot determine whether a bicycle was ever provided, even though there is some evidence that the expense was approved and some evidence that the actual item was not received by claimant. I would remand on this issue for development of the facts.
Similarly, the only evidence that claimant needs a mattress is a prescription form stating “firm mattress bed” by Dr. Martinez and a letter from an attorney to Segdwick Insurance Group stating that claimant “is 6’5″ tall and he needs a bed to accommodate his height along with the other prescriptions.” The evidence is certainly insufficient to demonstrate entitlement to a new mattress, and I find that claimant has failed to meet his burden of proof as to this issue.
I dissent from the majority finding of permanent and total disability and entitlement to the stationary bicycle and mattress. Based on my de novo review of the record, I would enter an award of 77.6% permanent and total wage loss, an order dismissing claimant’s claim for a mattress, and remanding or dismissing the claim for a stationary bicycle.
_____________________________ MIKE WILSON, Commissioner