CLAIM NO. F007583
Before the Arkansas Workers’ Compensation Commission
OPINION FILED FEBRUARY 3, 2003
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by HONORABLE LINDSLEY ARMSTRONG SMITH, Attorney at Law, Fayetteville, Arkansas.
Respondents represented by HONORABLE J. CHRIS BRADLEY, Attorney at Law, North Little Rock, Arkansas.
Decision of the Administrative Law Judge: Affirmed.
OPINION AND ORDER
The respondents appeal a decision by the Administrative Law Judge finding that the claimant proved by a preponderance of the evidence that he was entitled to a loss in wage-earning capacity of 35%. Based upon ourde novo review of the record, we affirm the Administrative Law Judge’s decision.
The claimant is 20 years old and graduated from high school. However, the claimant took special education classes throughout his education. Prior to working for the City of Fayetteville, the claimant was employed at the University of Arkansas poultry research farm taking care of chickens. The claimant became employed by the respondent-employer in November of 1999 as a sanitation worker. He sustained an admittedly compensable injury on June 26, 2000 while picking up a recycling bin filled with water and bottles.
The claimant was treated by Dr. Zeigler and Dr. Vincent Runnels. The claimant did not undergo any surgical procedure, but was assigned a permanent physical impairment rating of 5% by Dr. Runnels. This impairment rating was accepted and paid by the respondents. The claimant contended at the hearing that he was entitled to wage-loss disability benefits as well as benefits pursuant to Ark. Code Ann. § 11-9-505(a). The Administrative Law Judge found that the claimant was entitled to a 35% loss in wage-earning capacity. However, the Administrative Law Judge found that the claimant failed to prove by a preponderance of the evidence that he was entitled to compensation benefits pursuant to Section 505. The claimant did not appeal that denial of benefits. Therefore, the only issue before the Commission at this time is the claimant’s loss in wage-earning capacity.
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 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 Fayetteville v. Guess, 10 Ark. App. 313, 663 S.W.2d 946 (1984);Oller v. Champion Parts Rebuilders, 5 Ark. App. 307, 635 S.W.2d 276
(1982).
After his admittedly compensable injury, the claimant first sought treatment from Dr. Robert Zeigler. Dr. Zeigler had an MRI performed on the claimant’s low back and then referred him to Dr. Vincent Runnels, a neurosurgeon. The July 8, 2000 MRI revealed a severe broad-based L4-5 disc protrusion with resultant bilateral L5 nerve root compression and spinal stenosis. Dr. Runnels wrote on August 4, 2000 that the claimant was not likely to continue in employment which required lifting recycle bins and that the claimant would need retraining for a different kind of work. On October 18, 2000, Dr. Runnels assigned an impairment rating of 5% to the body as a whole and opined that the claimant needed vocational rehabilitation.
The claimant met with vocational consultant Dale Thomas on November 30, 2000. Mr. Thomas determined that a functional capacity evaluation was needed and made arrangements. Mr. Thomas identified employers who had light, unskilled work, and assisted the claimant in contacting the Arkansas Employment Security Division, as well as other employment services.
By letter dated December 15, 2000, Dr. Runnels set out his assessment of the claimant’s limitations. The letter stated that the claimant should avoid jobs that involved repetitive bending or overhead work or lifting more than 25 pounds on a regular basis. Dr. Runnels concluded that “some sort of sitting job would be ideal.”
The claimant had a functional capacity examination on December 21, 2000. The claimant was found to be able to work in the medium category and was able to walk or stand up for one-third of an eight-hour day and to sit frequently for two-thirds of an eight-hour workday.
The evidence shows that the claimant went to work for Tyson Foods on January 29, 2001 at the rate of pay of $8.10 per hour. The claimant testified that he was unable to work at Tyson’s because he had to stand the entire 12 hours of work. On February 6, 2001, Dr. Runnels directed the claimant to take a break from standing every two hours.
The claimant quit working for Tyson’s and then went to work in February 2001 as a security guard for Burns Security. The claimant testified that he had to leave that employment after working only two weeks. The claimant explained that he left because he was sitting 12 hours a day and his back “just won’t let me do it.” On cross-examination, the claimant acknowledged that the security job for Burns was similar to the parks jobs he thought he could do for the respondent-employer. He explained that he could likely do the parks job, because if he had been given the parks job, he could get out of the vehicle and walk around. The claimant testified in his deposition that although the Burns job required him to watch the back of Tyson’s from his truck, he handled his back problem by getting out every hour and walking around the building. The claimant stated that he could “just walk around, walk in the building, make sure everything is going alright. Then I have these little keys I had to stick in little chips. I do it every hour.” The claimant acknowledged that he had no trouble doing that task and that he was there by himself. The claimant stated that he was required to sit in the truck for an hour and then walk around. He said he had to sit in the truck because his boss was in the front of the building, and he couldn’t stand by the side of the truck and stretch his back without getting in trouble. However, the claimant acknowledged at the time of his deposition that the reason he quit was because his grandmother passed away and they wouldn’t let him off.
The claimant testified that he then worked for about five months milking cows for a farmer. This job paid $6 an hour and he was provided with a house that had a rental value of $125 per week. The claimant’s wife was hired to work with him, but she became pregnant and the claimant was not kept on by the farmer. The claimant acknowledged that he did not take any medication while he was working for the farmer because he didn’t have it with him. He stated that he left his medication at his parents’ house and that it was 30 minutes to his parents’ house from the farmer’s farm. He acknowledged that he did not take the medicine to the farm because he did not need it. He also acknowledged that during the five months that he worked for the farmer, he did not take his medication, ibuprofen, or any other non-prescription medication because he didn’t like taking it.
The claimant then went to work in August of 2001 for Carrington Lumber making $7 an hour. The claimant testified that he was mowing yards, but he left in the winter because there was nothing to do during that time period. The claimant acknowledged that he has not worked since October 2001. He had also completed an application for Social Security disability benefits. The record shows that the claimant’s application was denied on December 27, 2001 when he failed to show up for the appointment.
The claimant was evaluated by Dr. Richard Back for a psychometric examination on October 21, 2001. Dr. Back determined that the claimant was functioning in the mildly retarded range on verbal intelligence and on the borderline range of performance intelligence. Dr. Back opined that the claimant’s intellectual functioning was consistent with 12 years in special education classes.
After considering the claimant’s very young age, his lack of work experience or transferable job skills, his very limited education, the nature and extend of the claimant’s injury and impairment, and all other relevant factors, we affirm the Administrative Law Judge’s finding that the claimant has sustained a 35% impairment to his wage-earning capacity in excess of the 5% anatomical impairment rating accepted and paid by the respondents.
In reaching our decision, we note that the dissent suggests that our ability to assess the claimant’s wage loss disability is inhibited by the claimant’s purported lack of motivation to return to work. On this point, the dissent concludes that the claimant failed to look for any jobs after his last employment of October of 2001, but prior to the hearing held in this case before the Commission on February 20, 2002.
We point out that the evidence actually establishes that the claimant has been highly motivated to return to work following his injury and period of temporary disability. In this regard, as discussed above, the claimant has actually tried to work at four different jobs following his compensable injury. In addition to these four jobs, we note, as did the Administrative Law Judge at great length in his opinion and order, that the claimant also attempted to return to work for the respondent in a number of areas, including work as an animal control officer, as a park patrol employee, as a custodian, and/or driving a sanitation truck on commercial routes. However, the respondents determined that the claimant lacks the necessary skills to perform any one of these city jobs, and the claimant was therefore not re-employed by the respondent.
In addition to the four jobs discussed above which the claimant did in fact undertake in 2001, we point out that the claimant testified that he has actually applied for more work since that time at a number of establishments, most recently only a week prior to the hearing, but that he has as of the date of the hearing been unable to obtain re-employment. Consequently, the claimant’s work history since the time of his injury does not support the dissent’s assertion that the claimant is not motivated to return to work. To the contrary, the preponderance of the evidence establishes that the claimant has had a difficult time maintaining employment consistent with his age, education, lack of work experience or transferable job skills, the nature and extent of his compensable injury, and other relevant factors.
Likewise, we note that the respondents assert on page 2 of their brief filed on June 7, 2002 that “because the respondent-employer has met their burden of establishing claimant’s return to the work force at an average weekly wage close to or in excess of his average weekly wage at the time of his injury, the Commission should deny this claim for additional permanent partial benefits.” While post-injury earnings are certainly a factor appropriate for consideration in determining permanent partial disability benefits, we point out that the claimant’s post-injury work experience indicates that (1) the claimant has attempted to return to work at several jobs that pay above minimum wage, (2) those jobs did not pay the $8.93 the claimant was earning at the time of the compensable injury, and (3) although highly motivated to work, to date the claimant has yet to find any employment after his compensable injury which he can maintain. Therefore, we are not persuaded by the respondents’ suggestion that the claimant’s post-injury return to work under the circumstances presented in this case support their assertion that the claimant has not sustained permanent partial disability for wage loss. To the contrary, the claimant’s post-injury work experience supports our conclusion that the claimant has in fact sustained a significant impairment to his wage-earning capacity as a result of his work-related injury which will significantly inhibit his return to long term employment.
Therefore, after conducting a de novo review of the entire record, and for the reasons discussed herein, we find that the decision of the Administrative Law Judge 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, the 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.
______________________________ OLAN W. REEVES, Chairman
______________________________ SHELBY W. TURNER, Commissioner
Commissioner Yates dissents.
DISSENTING OPINION
JOE E. YATES, Commissioner
I respectfully dissent from the majority opinion finding that the claimant proved by a preponderance of the evidence that he was entitled to a loss in wage-earning capacity of 35%. Based upon my de novo review of the record, I find that the claimant has failed to meet his burden of proof. Accordingly, I find that the claimant has failed to prove by a preponderance of the evidence that he is entitled to a 35% loss in wage-earning capacity.
In my opinion, a review of the evidence demonstrates that the claimant has failed to prove by a preponderance of the evidence that he is entitled to any wage loss disability benefits. Although the claimant is mildly retarded, he is very young, being only 20 years old. The claimant has an un-operated on herniated disc at L4-5 and has a 5% impairment rating. A 35% loss in wage-earning capacity is an excessive amount for a 20-year-old man. Although the claimant is to be admired for going and getting several jobs after he lost his job with the respondent-employer, the evidence indicates that the claimant lacks motivation to return to work. When the claimant was asked to produce the sheets that document his contacts with respective employers, he stated that he did not have them with him and he did not know where the sheets were. All we have is the claimant’s word that he made the contacts, but he is unable to explain who he applied for a job with and where it was, much less what the job was.
Therefore, when I consider all the evidence, I cannot find that the claimant is entitled to any loss in wage-earning capacity. Accordingly, I must respectfully dissent from the majority opinion.
_______________________________ JOE E. YATES, Commissioner