DAVIS v. PULASKI TECHNICAL COLLEGE, 2002 AWCC 166

CLAIM NO. F007628

CHARLES DAVIS, EMPLOYEE, CLAIMANT v. PULASKI TECHNICAL COLLEGE, EMPLOYER, RESPONDENT, PUBLIC EMPLOYEE CLAIMS DIVISION, CARRIER, RESPONDENT

Before the Arkansas Workers’ Compensation Commission
OPINION FILED AUGUST 22, 2002

Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.

Claimant represented by the HONORABLE RICHARD J. ORINTAS, Attorney at Law, Little Rock, Arkansas.

Respondent represented by the HONORABLE RICHARD S. SMITH, Attorney at Law, Little Rock, Arkansas.

Decision of Administrative Law Judge: REMANDED

OPINION AND ORDER
The claimant appeals from an Administrative Law Judge’s Opinion filed August 31, 2001. The claimant was working as a security guard for the respondent when he fell and broke his hip. The claimant underwent a total hip replacement as a result of this injury. The respondents accepted this injury as compensable and have accepted medical expenses, temporary total disability benefits, and a 15% anatomical impairment rating to the body as a whole. The claimant asserted at hearing that he was entitled to wage loss benefits and additional permanent partial disability benefits for anatomical impairment.

The Administrative Law Judge found that the claimant failed to prove “that he is entitled to additional permanent partial disability benefits for anatomical impairment, as Dr. Weber’s assessment is not based on objective medical evidence . . . and the rating does not conform to the AMA Guidelines.” The Administrative Law Judge further found that the claimant failed to prove “that he is entitled to additional permanent partial disability benefits for wage loss based upon his waiver of rehabilitation. . . .”

The claimant asserts that he is entitled to a 30% permanent impairment rating, as assigned by his treating physician, Dr. Weber. Dr. Weber wrote in a document dated January 24, 2001, that “the permanent/partial disability rating for Mr. Charles Davis . . . is 30% based on poor results from endo. Please refer to Table 64, page 3/85.” As the Administrative Law Judge’s Opinion points out, in order to use Table 64 of the Guides, a doctor is required to employ the point system in Table 65 at page 3/87, which requires a physician take into consideration pain, function activities, deformity, and range of motion. Dr. Weber’s assessment indicates that his rating is based solely on “poor results from endo” and in no way indicates that he considered Table 65 in making his evaluation.

With regard to the issue of wage loss benefits,

Ark. Code Ann. § 11-9-505(b)(3) states that:

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 for reasonable cause with either an offered program or 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’s Opinion found that,”Dr. Weber has not opined that the claimant would be unable to participate in the rehabilitation evaluation and/or program to retrain to lighter or sedentary work.” The claimant’s testimony on this issue was as follows:

Q. I believe you testified on direct examination from Mr. Orintas that you decided you were not a candidate for rehab?

A. Uh-huh. I wasn’t able to do it.

Q. Well, do you understand that the purpose of a rehab evaluation-one of the purposes of a rehab evaluation is for a specialist to determine if you might be a candidate for rehab?

A. Uh-huh.

Q. Do you understand that?

A. I do now.

Q. And you understand that one of the things they might look at would be whether you might be a candidate for some type of work hardening or — program to increase your endurance or flexibility?
A. Well, I don’t think — I mean I do what I can do on that. I’ve done — worked before. I know what I can do, and I know what they give me at therapy, some of the stuff I can do. I know I can’t do any more than that. . . .
Q. Well, did they ever actually get started on a rehab evaluation program for you?
A. Not — I think the lady I talked to her, you know, when I was still going to therapy and stuff — —

Q. And you declined?

A. Yeah, I couldn’t do it.

It is unclear from the evidence in this case whether the claimant is declining rehabilitation or whether he is unable to participate in rehabilitation.

We remand this case to the Administrative Law Judge with instructions to order an IME to assign an impairment rating and to determine the claimant’s ability to enter a rehabilitation program.

IT IS SO ORDERED.

_______________________________ ELDON F. COFFMAN, Chairman
_______________________________ SHELBY W. TURNER, Commissioner
_______________________________ JOE E. YATES, Commissioner