FURLOW v. MISSISSIPPI COUNTY ECONOMIC OPPORTUNITY COMMISSION, 2005 AWCC 246

CLAIM NO. F001870

SHIRLEY FURLOW, EMPLOYEE, CLAIMANT v. MISSISSIPPI COUNTY ECONOMIC OPPORTUNITY COMMISSION, EMPLOYER, RESPONDENT NO. 1 FREMONT INDUSTRIAL INDEMNITY COMPANY, ARKANSAS PROPERTY CASUALTY INSURANCE GUARANTY FUND, CARRIER, RESPONDENT NO. 1 SECOND INJURY FUND, RESPONDENT NO. 2 DEATH PERMANENT TOTAL DISABILITY TRUST FUND, RESPONDENT NO. 3

Before the Arkansas Workers’ Compensation Commission
OPINION FILED DECEMBER 12, 2005

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

Claimant represented by Honorable John Barttelt, Attorney at Law, Jonesboro, Arkansas.

Respondent No. 1 represented by Honorable Jeremy Swearingen, Attorney at Law, Little Rock, Arkansas.

Respondent No. 2 represented by Honorable David Pake, Attorney at Law, Little Rock, Arkansas.

Respondent No. 3 represented by Honorable Judy Rudd, Attorney at Law, Little Rock, Arkansas.

Decision of the Administrative Law Judge: Affirmed.

ORDER
The claimant appeals and respondent no. 1 cross-appeals a decision by the Administrative Law Judge finding that the claimant failed to prove by a preponderance of the evidence that she was permanently and totally disabled. Based upon our denovo review of the record, we find that the claimant has failed to prove by a preponderance of the evidence that she permanently and totally disabled. We further find that respondent no. 2 has no liability in this case. Accordingly, we affirm the decision of the Administrative Law Judge.

The claimant sustained an admittedly compensable injury to her ankle when she fell on some ice and broke the bones in her ankle and the tibia at her ankle. The claimant’s ankle did not properly heal and she had to undergo multiple surgical procedures. The respondents accepted the claim as compensable and paid temporary total disability benefits as well as a 25% permanent partial anatomical impairment. The claimant contends that she is permanently and totally disabled. The Administrative Law Judge found that the claimant was not permanently and totally disabled but based his holding upon the Commission’s finding in McDonaldv. Batesville Poultry Co., Full Commission Opinion filed June 17, 2004, (Claim No. E905523). That case subsequently went to the Arkansas Court of Appeals and the Court reversed the Commission findings. The Court in McDonald found that the Commission misinterpreted the relevant sections of Ark. Code Ann. §11-9-521(g). The Court found that a claimant with a scheduled injury to only one part of his body could receive permanent and total disability benefits if he could establish that the scheduled injury had rendered him permanently and totally disabled. After conducting a de novo review of the record, we find that the claimant cannot prove that she is permanently and totally disabled based upon the evidence in the record. Accordingly, we affirm the decision of the Administrative Law Judge.

The claimant was employed by the respondent employer as a teacher and supervisor in the Head Start Program. The claimant was responsible for giving primary care to four children ranging in age from six weeks to one and one-half years of age. She was required to observe and record findings. She also worked with the children individually playing games, reading stories, nurturing and taking care of their personal needs. In February of 2000, the claimant sustained an admittedly compensable injury to her right ankle. The claimant broke her ankle in three places when she slipped and fell on some ice. She subsequently underwent several surgeries because of healing problems. The claimant was ultimately assessed with a 25% impairment to the lower extremity which was accepted and paid by the respondents.

On January 5, 2005, the claimant underwent a Functional Capacity Evaluation. The findings of that examination are set out as follows:

Ms. Furlow demonstrates the ability to perform Lifting activities at the Light level with an occasional maximal lift of up to 20 lbs.
Ms. Furlow demonstrates no functional deficits with her UE’s and is able to perform the following activities on a Frequent basis: Reach Immediate (L), Reach Immediate (R), Reach Overhead (L), Reach Overhead (R), Reach with Weight, Handling (L), Handling (R) Bi-Manual Handling, Fingering (L), Fingering (R), and Bi-Manual Fingering. She is also able to frequently Balance herself and perform sitting.
Ms. Furlow also demonstrates the ability to perform the following on an Occasional basis: Walk distances up to 150 yards on even terrain, Carry up to 20 lbs., stoop, kneel, climb stairs, Standing (20-25 minutes before requiring a sit break for 10-15 minutes).
Ms. Furlow does demonstrate functional deficits with activities that include Material handling over 20 obs. including lifting and/or carrying. She is also functionally restricted with prolonged standing and continuous walking. She is unable to perform Crouching and is limited to occasional stairs and occasional kneeling. She is unable to jump.

The claimant also underwent two different vocational rehabilitation evaluations. The respondents had the claimant evaluated by Ms. Terry Owens who performed her evaluation on December 5, 2003. The claimant’s attorney, on the other hand, had Ms. Elizabeth Clem perform an evaluation on February 9, 2004. Ms. Owens determined that the claimant could return to employment. However, Ms. Clem determined that the claimant was permanently and totally disabled.

Ark. Code Ann. § 11-9-519(e)(1) provides:

Permanent total disability means inability, because of compensable injury or occupational disease, to earn any meaningful wages in the same or other employment.

In the present case, the claimant is a 59-year old female with a high school degree who attended college for a number of years, but never obtained a degree. Though much of the claimant’s employment background has been in early childhood education or child care, she has also been employed as a secretary, a clerk, a custodian and as a concessionaire.

The evidence demonstrates that Ms. Owens met with the claimant in her home on December 15, 2003. According to Ms. Owens’ initial rehabilitation evaluation, although the claimant still has sharp cramping sensations in her ankle, they ease fairly quickly. If the claimant is having a bad day, she may use a cane or crutches. The claimant told Ms. Owens that she only takes prescription medication on bad days, but not very frequently.

The claimant told Ms. Owens she attends mid-week and Sunday church services on a regular basis. The claimant also reported to Ms. Owens that she is still able to cook meals and do light cleaning around the house. The claimant admitted she is able to use a screwdriver, copy machine, cash register, car/truck and cooking equipment.

According to Ms. Owens, the claimant still has approximately seven years of gainful employment. The claimant has a good work history and possesses transferable job skills. Ms. Owens opined that the claimant was able to earn meaningful wages in at least some employment.

Ms. Clem, the vocational specialist selected by the claimant, began employment as an independent contractor with the Social Security Administration as a vocation expert in February of 1998. In contrast to Ms. Owen’s who has over 18 years experience in workers’ compensation cases, Ms. Clem has never testified as a vocational consultant or expert witness in a matter before the Workers’ Compensation Commission prior to this case. Ms. Clem also testified to the fact that she did not have any personal knowledge of the legal or disability standards used by the workers’ compensation system in determining permanent and total disability.

Ms. Clem evaluated the claimant at her attorney’s office on February 9, 2004. The evaluation lasted approximately 40 minutes. In preparing her report, Ms. Clem used information from the interview with the claimant, the claimant’s functional capacity evaluation, the impairment report from Dr. Taylor and Terry Owens’s vocational consultant’s report. Ms. Clem testified to reviewing the claimant’s deposition, but to not reading the deposition in its entirety. Ms. Clem also relied on a Worker Trait Profile report and a report from a computer program entitled Skilltran.

Ms. Clem opined in her summarized vocation evaluation report that the claimant had sustained a labor market loss of approximately 85-95%. Ms. Clem based her opinion on a Worker Trait Profile report that she received from Dr. Marini. It is of note that the information Ms. Clem relied on for her assessment of labor market loss was based on outdated statistics. The following exchange is enlightening:

Q. Yeah, at your deposition I gave you this thing it’s an exhibit to your deposition, it’s a little CAPCO’s pocket guide to the 1991 Dictionary of Occupational Titles and 1992 Characteristics of Occupations. Does this document reflect the same percentages for sedentary and light work on the national labor market as what you reflected in the transparency Dr. Marini gave you?

A. Yes, they do.

Q. Okay. So, would it be fair to say then that your percentages that you used in your assessment were based off of data on a nationwide labor market basis form like 12, 13 years ago?

A. That’s correct.

Q. Okay. And just for purposes of the record, do I understand your assessment of the data indicated that 11% of the national labor market back in 1991 or 1992 was sedentary work and about 49.6 was light work.

A. Right.

It was also determined that there was more current data available from the State of Arkansas.

Q. Okay. Am I correct that the State of Arkansas, Employment Security Division or Department of Labor, they keep a data bank on all the types of different jobs people do in Arkansas and break that information down by how many such jobs there are and what they pay?

A. They do.

Okay. That information is updated every year, is it not?

Yes.

Ms. Clem’s assessment also took into account information that could not be proven by objective date.

Q. Okay. But do you keep a running tally of te statistics of jobs that you find, you think might be sedentary or light but don’t quite fall into that category? I mean, is there data that you have that you can derive the 4% from, objectively?

A. Not objective data, no.

Furthermore, Ms. Clem also relied on her subjective opinions on what the job market should reflect.

Q. Now, moving on towards the conclusion part of your report, you come out with an opinion that Ms. Furlow has sustained a labor market loss of approximately 85-95% based on objective evidence. Where did you get the 85% again?
A. Again, maybe that was a mis-statement on my part but I thought I had explained the 89% would have been with the sedentary, I allowed the 4% based on my knowledge of the sit-stand options available in the economy.
Q. Why not 6%, why not 2%, why not 5%? I mean, why 4% if that was just a number you came up with?
A. It wasn’t a number — it was one that I put to the amount of jobs that I hear that are sit/stand. It’s not an exact science. I can’t exactly quantify it for you.
Q. But don’t you agree with me, though, that in putting down a number of 4% and discounting that 89 or that 85 down to 89 or however, I’m saying, and using — choosing to use 4% as another point of discount, you’re trying to put an objectification on your subjective feel of the job market out there?

A. That’s not how I would look at it but.

Q. But is that an accurate statement?

A. I don’t think it’s accurate, no.

Q. By choosing the number 4% are you trying to objectively quantify something that you subjectively feel is out there?
A. For terms of this — yeah, for terms of this report.

Although Ms. Clem said that she relied on the Skilltran report during her assessment of the claimant, she did not assess it much weight.

Q. Okay. But you say you rely on that Skilltran as part of the information that’s the basis of your report. Is that correct?
A. I said I looked at it. I think you and I both agreed as to my hard time explaining that report. I said it was the first time I used that report. The results were not what I — I didn’t agree with the report, I guess I should say.

Using the information that Ms. Clem supplied, the Skilltran program reported jobs that the claimant would be able to perform.

Q. And when you put that information in along with her job history and her work experience and I think — does it ask for education at all?

A. It does, yes, sir.

Q. Okay. And that information, do I understand for lack of a better term, spit out 135 different types of jobs that it felt she would be able to do within the information you gave it?
A. Yes — I don’t know how many it spit out, but yes. Yeah, post injury, 135.
Q. Okay. And that was just assuming that light duty was, in fact, all ruled out, is that correct?

A. Yes.

It was Ms. Clem’s opinion that the claimant should be placed in the sedentary category. During testimony, Ms. Clem admitted to being able to return to work persons with a sedentary exertional range for an FCE. Ms. Clem also stated that based on the reports, without the subjective evidence, there were sedentary jobs that the claimant could perform within her limitations. After considering the two reports, I give more weight to Ms. Owen’s assessment than I do Ms. Clem’s. Ms. Owen obviously is the more experienced counselor who is very familiar with the workers’ compensation standards. Ms. Clem, on the other hand is inexperienced and used outdated information in which to make her recommendations.

Therefore, after considering the fact that the claimant has a varied work history, is very articulate, has a good education, coupled with the fact that the claimant’s functional capacity evaluation indicated that the claimant was capable of performing work in the light category and the vocational rehabilitation specialist has opined that the claimant can return to work, it appears that the claimant is not motivated to return to work. When the claimant completed the questionnaires with respect to the vocational rehabilitation application, she checked virtually all of them as “not interested.” We find that the claimant has failed to prove by a preponderance of the evidence that she is permanently and totally disabled. Although the claimant may have some restrictions, she is foreclosed from recovering any wage loss disability benefits because she sustained a compensable scheduled injury. With a scheduled injury the claimant is only entitled to receive the permanent anatomical impairment. Because the claimant is not permanently and totally disabled, she is not entitled to any wage loss. Therefore, the Second Injury Fund has no liability. Accordingly, we would affirm the decision of the Administrative Law Judge on this issue.

The second issue that must be addressed is the claimant’s wages for calculating her average weekly wage. At the hearing, Respondent No. 3 objected to a previous stipulation which had been made between the claimant and Respondent No. 1 regarding the benefit rate. This dispute apparently centered upon the claimant’s original 1999-2000 employment contract which indicated her salary was $773.05 paid every two weeks. This contract was entered into on June 3, 1999. However, the claimant testified that in September 1999, she and the other teachers employed in the program received a retroactive cost of living increase which raised her salary to $840.02 every two weeks. This increase is reflected in the wage statement provided by her employer. In reviewing the Administrative Law Judge’s Opinion, he appears to accept that the claimant’s salary beginning in September 1999 was $840.02 every two weeks. However, in his actual findings of fact, he recites that the claimant’s benefit rate is $257.00 per week for temporary total disability and $193.00 per week for permanent partial disability benefits. Those numbers are computed upon a wage rate of $773.05. Ark. Code Ann. § 11-9-518 provides that compensation shall be computed upon the average weekly wage earned by the employee under the contract of hire in force at the time of the accident. The section goes on to provide that in no case shall the wages be computed on less than a full time work week. A letter provided by the respondent employer clearly establishes that beginning on September 15, 1999, the claimant began receiving $840.32 per week. While there were some fluctuations during holiday months where the claimant was not employed in a full work week, it is clear that her salary was at the higher rate. We therefore find that the claimant’s benefit rate should be $280.00 per week for total disability and $210.00 for permanent partial disability.

IT IS SO ORDERED.

___________________________________ OLAN W. REEVES, Chairman
___________________________________ KAREN H. McKINNEY, Commissioner

Commissioner Turner concurs, in part, and dissents, in part.

CONCURRING AND DISSENTING OPINION SHELBY W. TURNER, Commissioner

While I concur with the Majority’s finding that Respondent No. 2, Second Injury Fund, has no liability in this case, and I agree the claimant’s disability rate should be $280.00 per week for total disability and $210.00 for permanent partial disability, I disagree with the Majority’s finding that the claimant is not permanently and totally disabled. I therefore must concur in part and dissent in part from the Majority’s Opinion.

As set out above, the claimant’s injury was to her ankle. There does not seem to be any dispute that the claimant’s injury precludes her from spending extensive time standing or walking and, consequently, she cannot return to her former employment in the field of preschool education. The question then becomes whether the claimant has sufficient transferrable job skills to find employment in other areas. I believe that the answer to that question is no, she does not.

The claimant and Respondent No. 1 have offered evidence from conflicting vocational evaluations. The expert retained by the claimant is Elizabeth Clem. She interviewed the claimant and conducted an evaluation of jobs available to her given her age, education level, and physical restrictions, and determined that the claimant was not employable and was totally disabled.

The respondent’s rely upon a report from Terry Owens, a vocational specialist with Systemedic, Inc. At their request, Ms. Owens conducted an evaluation of the claimant’s vocational status and determined that while she was limited to light duty employment, there were a significant number of jobs still available to her.

The resolution of this case turns upon which vocational expert is given the most weight and credit. Both of the experts have comparable backgrounds, training, and experience and both of them carried out their evaluations in similar manners. Both experts also amplified their findings in deposition or hearing testimony.

Having thoroughly reviewed the testimony and vocational reports from each of the experts, I find that Ms. Clem’s report is more convincing and should be given more weight and credibility. I reach that conclusion because Ms. Clem more accurately and thoroughly assessed the claimant’s remaining vocational abilities and seemed to have a better grasp of the actual realities of finding employment.

In comparing the two reports, I believe that it is significant that Ms. Clem considered the actual limitations the claimant has such as the need to sit frequently and elevate her leg before walking, and applied those criteria to specific vocational situations. For example, Ms. Clem was cognitive of the fact that while the claimant could perform sedentary work, she was also aware that most of those jobs are either professional or managerial positions. The claimant, who does not have a college degree, no computer training, and no management or professional experience is unlikely to be able to fill most of those jobs. Sedentary jobs in a factory setting, as Ms. Clem explained in her testimony, generally involve the operation of machinery often using a foot pedal, and factories generally will not permit an employee to remain seated with their foot elevated. Other light duty employments such as preschool education, the field the claimant was previously employed in, require workers to be on their feet extensively. Many other light duty jobs such as the food service industry, retail store clerks, and similar positions, also require prolonged standing and walking. Once again, these positions would not allow the claimant to remain seated with her foot elevated. I find Ms. Clem’s conclusions in this regard to be compelling and convincing.

On the other hand, Ms. Owens’ conclusion that the claimant could return to a variety of light work employments was based not upon any practical evaluation of those employments, but instead relied upon written, general explanations of what was considered light work. For example, Ms. Owens did not anticipate the claimant having any problem remaining seated during the work day or elevating her foot. During cross examination, when it was pointed out to Ms. Owens that few jobs would necessarily allow an employee to remain seated all day or to elevate their foot, she cavalierly commented that “modifications would have to be made.” Likewise, Ms. Owens did not seem to believe the claimant’s age (59) or her lack of any computer training or skills would be an impediment to her obtaining employment. I find Ms. Clem’s real world assessment far more convincing than Ms. Owens’ textbook answers.

Considerable testimony was also developed regarding the methodology used in the two reports. The Majority criticizes Ms. Clem for relying upon the Dictionary of Occupational Titles
(DOT) which they contend is out of date. However, this publication, which is promulgated by the Federal Government, is a frequently used reference work and is relied upon by almost all vocational experts, including those used by the respondent in this case. I also note that while Ms. Clem is criticized for using the DOT and relying upon computer models to evaluate the claimant’s return to work potential, they also criticize her for using her own experience in reaching her conclusion. In my opinion, Ms. Clem’s use of a variety of sources, including her own background and experience, is the appropriate way to evaluate someone in the claimant’s position. On the other hand, the respondents’ expert relied almost entirely upon boiler plate language from reference works which, while are helpful, are not always realistic in terms of actual workplace duties.

I also believe that Ms. Clem is a more reliable expert in that she is a self-employed vocational counselor who provides neutral evaluations of individuals for the Social Security Administration and other institutions or individual clients. Ms. Owens, on the other hand, explained that she is employed by a subdivision of Systemedic, Inc., a company which is primarily employed by insurance carriers and employers to provide case management services. She also testified that her rehabilitation services are exclusively provided to employers and insurance carriers in workers’ compensation cases. In my opinion, Ms. Clem’s independence from either party in this case gives her a superior perspective and lends her opinions more credibility.

In short, I find that the more credible and reliable opinions of Ms. Clem, when coupled with the medical evidence in regard to the claimant’s physical limitations establishes the claimant is permanently and totally disabled. For that reason, I respectfully dissent from the Majority’s finding that the claimant is not permanently and totally disabled.

___________________________________ SHELBY W. TURNER, Commissioner