CLAIM NOS. E113239 E317577
Before the Arkansas Workers’ Compensation Commission
OPINION FILED JUNE 11, 1998
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE EDDIE H. WALKER, JR., Attorney at Law, Fort Smith, Arkansas.
Respondent No. 1 represented by the HONORABLE ROBERT HORNBERGER, Attorney at Law, Fort Smith, Arkansas.
Respondent No. 2 represented by the HONORABLE JUDY RUDD, Attorney, Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed as modified.
[1] OPINION AND ORDER[2] The claimant appeals and respondent No. 1 cross-appeals an opinion and order filed by the administrative law judge on August 7, 1997. In that opinion and order, the administrative law judge found that the claimant has proven by a preponderance of the evidence that she is entitled to a permanent partial impairment rating of 6% rated to the body as a whole. In addition, the administrative law judge found that the claimant has proven by a preponderance of the evidence that she is entitled to wage loss in the amount of 3% over and above her permanent partial disability rating, giving her a total disability rating of 9% to the body as a whole. The administrative law judge also found that the Second Injury Fund has no liability in this matter since there was no combining of prior impairment with the claimant’s current status to create a higher degree of disability than that which the 1991 injury created of itself alone. [3] After conducting a de novo review of the entire record we find that the claimant has proven by a preponderance of the evidence that she is entitled to a 1% permanent anatomical impairment in this case. In addition, we find that the claimant has sustained a 2% impairment to her wage earning capacity as a result of her compensable injury and 1% anatomical impairment causally related to her compensable injury. We also find that the Second Injury Fund has no liability in this case. Therefore, we find that the decision of the administrative law judge must be affirmed as modified. [4] The claimant in the present case sustained a compensable injury in May of 1991, and experienced compensable recurrences of that back injury in December of 1992 and June of 1993. In addition to these work-related injuries, medical evidence also indicates that the claimant has preexisting degenerative back problems which preexisted her first work-related injury in May of 1991. [5] The claimant has been treated for her work-related back injury by Dr. Stephen A. Heim, who assigned the claimant a 6% overall permanent anatomical impairment rating to her back on August 20, 1993, stating:
[6] During a deposition taken on March 16, 1994, Dr. Heim opined as follows regarding how to apportion the claimant’s 6% impairment rating between her preexisting degenerative disc disease and her work-related injury;I have reviewed Ms. Ellison physically and have obtained a new CT scan. Her disc disease at L5/S1 has not worsened from that identified previously and she has some mild degenerative disease. I would rate her at no more than a six (6%) disability to the body as a whole due to her degenerative changes and minimal and very minimal disc.
[7] Based on Dr. Heim’s written opinion and deposition testimony, we find that the greater weight of the evidence establishes that only 1% of the claimant’s anatomical impairment rating to the body as a whole is attributable to her work-related injuries and recurrences in 1991, 1992 and 1993. Therefore, we find that the administrative law judge’s decision in this regard must be affirmed as modified. [8] In reaching our decision, we note that the claimant has undergone CT scans in 1987, 1989, 1991, and 1993, which each show similar degrees of abnormality at the L5-S1 level, and we note that the abnormality identified at the L5-S1 level is therefore established by “objective findings”. In addition, as we interpret Dr. Heim’s testimony, Dr. Heim is of the opinion that the claimant’s work-related injuries in 1991 with recurrences in 1992 and 1993 have aggravated claimant’s preexisting abnormality at L5-S1, to the extent that the claimant has experienced an additional 1% impairment (on top of the 5% impairment attributable to the preexisting disc abnormality) attributable to her work-related injury. Therefore, for the reasons discussed herein, we find the administrative law judge’s determination of the claimant’s permanent anatomical impairment rating must be affirmed as modified. [9] In determining wage loss disability, the Commission may take into consideration the claimant’s age, education, work experience, medical evidence and any other matters which may reasonably be expected to affect the worker’s future earning capacity. Such other factors are motivation, post-injury income, credibility, demeanor, and a multiplicity of other factors. 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). [10] In the present case, the record indicates that the claimant was 61 years old at the time of the hearing. She has a 10th grade education and the majority of her work experience involves labor intensive activity in an industrial setting. The claimant testified at the April 24, 1997, hearing that she experiences constant pain in her back which does not allow her to move around or do anything. The claimant testified that she cannot sit for long periods of time and she cannot be up for long periods of time. She testified that her pain gets so severe that she just sits awhile and moves around a little bit. Dr. Heim evaluated the claimant on February 6, 1997, and opined that she is probably not a good candidate for vigorous activity that requires a lot of bending, stooping and lifting. However, he expressed the opinion that the claimant could do a sedentary job. As discussed, the medical evidence establishes that the claimant’s work-related injury has aggravated a relatively minor non-surgical disc abnormality at the L5-S1 level of the claimant’s spine. Notably, Dr. Harford, the company physician, opined as early as December 7, 1992, that the claimant was probably going to need to find another line of work; however, the claimant continued to work for the respondent until June 30, 1993, when she was no longer allowed to continue to work for the respondent by the company physician. Finally, we find highly significant the evidence that the claimant last saw a doctor for her back on August 12, 1993, and has soughtno treatment for her back thereafter in 1993, 1994, 1995, or 1996. [11] After considering the claimant’s age, education, work experience, the relatively minor nature of her compensable injury, her lack of medical treatment for that injury over a several year period prior to the hearing, and all other evidence properly in the record, we find that the claimant has sustained a 2% impairment to her wage earning capacity in excess of the 1% work-related anatomical impairment established by the medical evidence. Therefore, we find that the administrative law judge’s decision in this regard must be affirmed as modified. [12] Pursuant to Ark. Code Ann. § 11-9-525 and MidstateConstruction Co. v. Second Injury Fund, 295 Ark. 1, 746 S.W.2d 539Q. Now, I was going to stop, but I understand that you cannot say absolutely that that is the case; but based upon your clinical judgment and your evaluation of Ms. Ellison, is it likely that it is a contributing factor? I know that you cannot say 100%.
A. With the trauma that has been relayed to me and knowing the condition of her back, if she has injured her back on the date that you mentioned, this several times in `91 and `92 and was taken off work in `93, I think that it is likely that if she is incurring ongoing trauma that it has contributed at least 1% to her back.
(1989), three criteria must be met before the Second Injury Fund could be found liable for wage loss disability:
[13] In the present case, the evidence establishes that the claimant sustained a compensable injury at her present place of employment which resulted in a 1% permanent anatomical impairment, therefore, we find that the first criteria has been met. In addition, based on Dr. Heim’s testimony that the claimant has a total 6% anatomical impairment in her lumbar spine, with only 1% of that impairment work-related, we find that the greater weight of the evidence establishes that the claimant had a permanent partial impairment which preexisted the claimant’s compensable injury. Therefore, we find that the second criteria has also been met. [14] However, we find that all of the claimant’s present wage loss disability is attributable solely to her most recent work-related injury, and we therefore find that the third criteria to establish Second Injury Fund liability has not been met in this case. [15] In reaching that conclusion, we find that after her recovery from a 1989 injury in approximately late 1989 or early 1990, the claimant was not operating under a handicap related to her back. According to the claimant, she recovered from her 1989 injury later that year:1. Employee suffered a compensable injury at his present place of employment which resulted in additional permanent disability or impairment;
2. Prior to that injury the employee must have had a permanent partial disability or impairment; and
3. The prior disability or impairment must have combined with the additional permanent disability or impairment resulting from the most recent compensable injury to produce the current disability status.
Q. Had you recovered from the effects of that 1989 injury before you had the 1991 injury, in your opinion?
A. Yes, I had.
[16] Moreover, the evidence establishes that after the claimant recovered from her 1989 episode, she was able to return to her regular work duties. Additionally, at the time of the 1991 injury the claimant’s occasional respiratory problems were not interfering with her ability to work, and we find the greater weight of the evidence establishes the claimant’s respiratory problems in no way “combined” with the claimant’s most recent back problems to cause her present wage loss disability. Therefore, for the reasons discussed herein, we find that the administrative law judge’s decision in this regard must be affirmed. [17] Therefore, after conducting a de novo review of the entire record, and for the reasons discussed herein, we find that the claimant has proven by a preponderance of the evidence that she has sustained a 1% permanent anatomical impairment as a result of her work-related injury. In addition, we find that the claimant has sustained a 2% impairment to her wage earning capacity in excess of the 1% anatomical impairment established by the medical evidence. We also find that the Second Injury Fund has no liability in this case. Therefore, we find that the decision of the administrative law judge must be affirmed as modified. [18] 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 in part 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). [19] IT IS SO ORDERED.ELDON F. COFFMAN, Chairman MIKE WILSON, Commissioner
[20] Commissioner Humphrey dissents.