CLAIM NOS. E212067 E212066
Before the Arkansas Workers’ Compensation Commission
OPINION FILED MARCH 3, 2000
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by MARY THOMASON, Attorney at Law, El Dorado, Arkansas.
Respondent represented by BETTY DEMORY, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed in part and reversed in part.
OPINION AND ORDER
Claimant has appealed the Administrative Law Judge’s finding that claimant failed to prove his entitlement to permanent and total disability benefits. Respondent cross-appealed the Administrative Law Judge’s award of attorney’s fees on the permanent partial disability benefits for the 10% impairment rating. Based upon our de novo review of the record, we hereby affirm the finding of the Administrative Law Judge that claimant failed to prove by a preponderance of the evidence that he is entitled to permanent and total disability benefits. We also reverse the award of attorneys’ fees on the 10% impairment rating.
It is clear from the depositions of claimant’s doctors, Dr. Davis and Dr. Williams, that claimant’s problems which have prevented his return to work are unrelated to his back injury. Dr. Davis specifically stated that claimant could work, in spite of his compensable injury, if he did not also suffer from other medical problems which arose after his injury but which are not related. Dr. Davis in his 1998 deposition explained that the renal insufficiency was due to elevated calcium levels and that when his calcium levels were controlled, his renal insufficiency resolved. The fact that Dr. Davis later wrote a short letter mentioning that his renal insufficiency was possibly due to the use of non-steroidal anti-inflammatories does not outweigh the well-reasoned and sworn explanation made while reviewing claimant’s records in the deposition. In fact, it appears that while the use of non-steroidal anti-inflammatories was originally suspected to be the cause of the renal insufficiency, the elevated calcium level was diagnosed as a result of claimant’s sarcoidosis, for which there is no identifiable cause. Dr. Davis’ explanation is supported by the fact that there was a reason for the elevated calcium level.
Dr. Davis did state that there was a possibility that claimant’s gastrointestinal problems could have been aggravated by his medications for his back problems, especially the non-steroidal anti-inflammatories. However, this assertion is not sufficient to prove that claimant’s gastrointestinal problems were caused by the treatment for his back injury or that his gastrointestinal problems caused his incapacity to earn wages.
Dr. Davis also indicated that claimant could work if his only problems were from the compensable injury. Dr. Williams also indicated that claimant is not prevented from working because of his back problems. He indicated that claimant needed no more medical treatment to return to work in regard to his back problem in January 1994.
It is the finding of this Commission that claimant is not entitled to permanent and total disability benefits arising out of his workers’ compensation injury, because he is not totally incapacitated from working due to his injury and because the other problems he has were not the result of his treatment for the compensable injury. Claimant did not show that he was in the odd-lot category, because of his young age, his functional capacity evaluation, his application for and acceptance of social security disability, indicating his intent not to work and his failure to apply for any jobs identified for him. If his back injury was removed, leaving his other problems, claimant would still be disabled from working, but if the non-work related problems were removed leaving only the back injury, claimant would be able to work. After considering the claimant’s age, education, work experience and all other relevant factors, we affirm the Administrative Law Judge’s finding that the claimant has sustained a 15% impairment to his wage earning capacity in excess of his 10% anatomical impairment attributable to his work-related back injury.
However, we reverse the Administrative Law Judge’s finding that attorney’s fees should be paid on the claimant’s 10% anatomical impairment. In this regard, we note that the respondents sought and received from the Administrative Law Judge a credit against liability for apparently four and one-half years of prior overpayment of temporary total disability benefits. By our calculation, the monetary credit for four and one-half years of overpayment (approximately 243 weeks of benefits at the temporary total compensation rate) far exceeds the monetary benefits that the claimant would otherwise be entitled to for his 25% permanent disability (approximately 113 weeks of benefits at the permanent partial compensation rate). Since the respondents prevailed on their request for a credit, and since the respondents’ credit far exceeds all liability that the respondents would otherwise have had for permanent disability compensation, we find that the respondents were justified under the circumstances in not paying the claimant’s 10% anatomical impairment rating. Because the respondents were justified when these circumstances in not paying the 10% anatomical impairment rating, we reverse the Administrative Law Judge’s award of an attorney fee on the 10% rating. Compare, Donnie Noles v. Roland Bates Trucking Co., Full Workers’ Compensation Commission, June 3, 1997 (Claim No. E108862).
We affirm the denial of permanent total disability and reverse the fees award on the 10% rating.
IT IS SO ORDERED.
_______________________________
ELDON F. COFFMAN, Chairman
_______________________________
MIKE WILSON, Commissioner
Commissioner Humphrey dissents.
DISSENTING OPINION
I must respectfully dissent from the majority opinion finding that claimant failed to prove by a preponderance of the evidence that he is entitled to permanent and total disability benefits. I also dissent from the majority opinion that refusal to pay benefits does not constitute a controversion of those benefits for the purposes of calculating attorney fees. Based upon my de novo review of record I find that claimant is totally and permanently disabled and I would affirm the award of an attorney fee based on the 10% disability rating inter alia.
Claimant is 34 years old and began working for respondent after his graduation from high school. Claimant worked as a roustabout in the oilfields and his entire employment history consists of heavy manual labor without any type of supervisory experience. Since his high school graduation claimant has received no college or vocational training.
On January 24th and February 3rd 1991 claimant suffered a back injury while working for respondent. This claim was controverted in its entirety and a hearing was held in December of 1992. The Administrative Law Judge held that claimant had suffered a compensable injury to his back and directed respondent to pay temporary total disability benefits (hereinafter TTD) beginning September 4, 1992, and continuing until the end of claimant’s healing period.
As a result of his compensable injury claimant has undergone a great deal of medical treatment including back surgery in 1992. Respondent paid TTD benefits until February 5, 1998, when claimant was released by Dr. Ron Williams and assigned a permanent disability rating. Claimant currently receives social security benefits and has not worked since the onset of his compensable injury.
The first issue to address is claimant’s argument on appeal that he is permanently and totally disabled. Claimant’s injury occurred in February of 1991 and therefore his claim for benefits is governed by the worker’s compensation laws then in effect, particularly including the odd lot doctrine.
Under the law in effect when this claim arose, where the claim is for permanent disability based on incapacity to earn, the Commission is to consider all competent evidence relating to the incapacity, including age, education, medical evidence, work experience, and other matters reasonably expected to affect the claimant’s earning power. Rooney v. Charles, 262 Ark. 695, 560 S.W.2d 797 (1978); Perry v. Mar-Bax Shirt Co., 16 Ark. App. 133, 698 S.W.2d 302 (1985); Ellison v. Therma-Tru, 66 Ark. App. 286, 989 S.W.2d 987 (1999).
When considering claimant’s physical condition it is clear that he is unable to work. Respondent paid TTD benefits to claimant for 5 years and only stopped because claimant reached his point of maximum medical improvement. Respondent did not allege that claimant had been relieved of his total incapacity to earn wages. It is true that claimant suffers from a number of medical conditions however, this does not render him ineligible to receive permanent and total disability benefits. Because I conclude that the permanent disability attributable to claimant’s compensable injury is sufficient by itself to render claimant permanently and totally disabled I would award claimant those benefits.
Certainly the most important evidence comes from Dr. Richard Davis who examined claimant on April 26, 1999, less than a month before the date of the hearing. Dr. Davis concluded that claimant was unable to work due to the following diagnosis:
“1. Lumbar Syndrome
2. Sarcoidosis
3. Hypercalcemia related to the sarcoidosis
4. Renal Insufficiency possibly related to non-steroidal antiinflammatory medications he was taking for his back pain.”
Because Dr. Davis reported that claimant was unable to work due to his back condition and the side effects of its treatment we should hold that claimant is permanently and totally disabled. Certainly neither party disputes that claimant’s back condition is permanent, only its effect is in question.
Claimant’s educational background supports his claim. While claimant is a high school graduate, that was 16 years ago and in the intervening years he has received no vocational or professional training. Claimant has been denied his request for vocational rehabilitation benefits by respondent. When we consider his employment background we discover that claimant has always performed hard manual labor and therefore has not acquired any sedentary business skills. Based on claimant’s compromised physical condition he is now left to seek sedentary employment for which he does not have, and is unable to acquire, the necessary skills.
It is also apparent that the work that claimant may actually be able to perform is of such limited availability that he is permanently and totally disabled under the “odd lot” doctrine. Moser v. Arkansas Lime Co., 40 Ark. App. 108, 842 S.W.2d 456 (1992), supp. op., 40 Ark. App. 113, 846 S.W.2d 188 (1993), and similar cases provide that an employee who is injured to the extent that he can perform services that are so limited in quality, dependability, or quantity that a reasonably stable market for them does not exist may be classified as totally disabled. Such an injured worker falls within the odd lot category of disabled workers.
Based upon claimant’s physical restrictions combined with his demonstrable lack of transferable job skills his overall job prospects are negligible. Claimant can only perform services that are so limited in quality, dependability, or quantity that a reasonably stable market for them does not exist. Because claimant has established a prima facie claim for permanent and total disability under the odd-lot doctrine the burden shifted to the respondent to show evidence that suitable work is regularly and continuously available to the appellant. Moser v. ArkansasLime Co., 40 Ark. App. 108, 842 S.W.2d 456, (1992). Because respondent failed to carry this burden I would award claimant the requested permanent and total disability benefits.
On the question of attorney fees I would affirm the finding that because respondent unilaterally and without prior approval stopped payment of claimant’s 10% permanent disability benefit those benefits were necessarily controverted. Therefore it was appropriate to include that benefit in the basis used to calculate the attorney fee to be paid claimant’s counsel.
_______________________________ PAT WEST HUMPHREY, Commissioner