CLAIM NO. E217823
CALVIN GREEN, EMPLOYEE, CLAIMANT v. SMITH SCOTT LOGGING, EMPLOYER, RESPONDENT and CAPITAL CITY INSURANCE CO., INC., INSURANCE CARRIER, RESPONDENT
Before the Arkansas Workers’ Compensation Commission
OPINION FILED SEPTEMBER 10, 1997
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE DENVER THORNTON, Attorney at Law, El Dorado, Arkansas.
Respondents represented by the HONORABLE W. LEE TUCKER, Attorney at Law, Bryant, Arkansas.
[1] OPINION AND ORDER
[2] This matter comes before the Full Commission on remand from the Arkansas Court of Appeals to consider the constitutional issue raised by the claimant which we did not address in our prior opinion and order filed on April 3, 1995. The claimant contends that the Arkansas scheduled injury statute denies him equal protection under the law because the Arkansas Workers’ Compensation Law specifically permits a claim for permanent disability benefits for wage loss for unscheduled injuries but does not provide for a claim for permanent disability benefits for wage loss for scheduled injuries (unless the claimant is permanently and totally disabled). In our prior opinion and order filed in this case, we found that the claimant failed to prove that he is permanently and totally disabled.
[3] As a threshold issue, the claimant must have standing to raise his constitutional challenge. In order to have standing to challenge a statutory system which permits claims for wage loss for unscheduled injuries but not for scheduled injuries, the claimant must prove that he has sustained some degree of permanent impairment to his earning capacity as a result of his scheduled injury. See, Green v. Smith Scott Logging,
54 Ark. App. 53,
57, ___ S.W.2d ___, ___ (1996) (Robbins, J., concurring).
[4] Therefore, the Commission must consider the degree to which the claimant’s future wage earning capacity is impaired. In addition to medical evidence demonstrating the degree to which the claimant’s anatomical disabilities impair his earning capacity, the Commission must also consider other factors, such as the claimant’s age, education, work experience, and any other matters which may affect the claimant’s future earning capacity, including the degree of pain experienced by the claimant. Ark. Code Ann. §
11-9-522 (1987); Tiller v. Sears,
27 Ark. App. 159,
767 S.W.2d 544 (1989).
[5] In the present case, the claimant dropped out of school in the 9th grade and was 60 years old at the time of his hearing. He testified that he had worked in the logging woods operating a chain saw for approximately the last 24 or 25 years preceding his injury on October 9, 1992. Prior to that, the claimant had worked in manual labor at a lumber mill and had operated equipment hauling timber to some degree.
[6] With regard to his injury, the claimant sustained an admittedly compensable injury on October 9, 1992, when a tree fell across his left arm. He underwent surgery on October 10, 1992, to install a plate related to a fracture of the radius in his left arm. However, the plate subsequently bent, but there was no explanation in the record as to how or why. The claimant underwent surgery for a left carpal tunnel release and surgery to replace the plate (and to insert a bone graft at the fracture site) on April 7, 1993. According to the reports of the claimant’s treating orthopedic surgeon, Dr. D’Orsay Bryant, consolidation proceeded slowly with satisfactory alignment after the second surgery. Dr. Bryant released the claimant to return to work on November 29, 1993, and assigned the claimant a 10% permanent partial impairment to his left arm on February 3, 1994.
[7] According to Dr. Bryant’s notes, when the claimant attempted to return to work for the respondents on November 29, 1993, he was advised that his position had been filled and that no work was available. The claimant testified that he subsequently returned to the woods with another logger for one day, but was not able to operate the chain saw. In this regard, the claimant acknowledged that he is right hand dominant, but indicated that operating a chain saw requires both hands. The claimant testified that he left the woods that day at approximately 2:00 p.m.
[8] The claimant testified that he has not attempted to find work after attempting to work in the woods on that one occasion. The claimant testified that he currently drives a car on occasion, but that he does not use his left hand for driving. The claimant testified that he does not mow his yard and does not help with work inside the home, but did not state why. The claimant testified that he has lost the strength in his left hand. In addition, he testified that he experiences pain in the area of the plate and that he experiences swelling in the arm when he tries to use it. When asked by his attorney “What do you do all day, sir?”, the claimant answered “Nothing”.
[9] In assessing the weight to be accorded the claimant’s testimony regarding his physical limitations, we note that Dr. Bryant’s December 9, 1993 note indicates that the claimant did experience forearm and wrist soreness when he attempted to operate a chain saw. However, we also note that none of Dr. Bryant’s notes indicate that Dr. Bryant would prohibit the claimant from operating a chain saw or from engaging in any particular line of work. Moreover, we note that Dr. Bryant also has not placed any physical restrictions on the claimant with regard to his injury. Likewise, Dr. Bryant’s January 6, 1994, note indicates that the claimant was not experiencing pain during range of motion testing, and Dr. Bryant’s last note in the record, dated June 2, 1994, indicates that the claimant’s wrist was non-tender and that the claimant was not experiencing pain with range of motion at that time. After considering the claimant’s age, education, work experience, the nature and degree of the claimant’s physical injury, the excellent recovery from that fracture as of June 2, 1994, and all other relevant factors, we find that the claimant failed to prove by a preponderance of the evidence that he sustained any permanent impairment to his earning capacity as a result of his compensable injury. Consequently, we find that the claimant has failed to show that he has standing to challenge the constitutionality of Ark. Code Ann. §
11-9-521 (1987).
[10] We, therefore, again find that the claimant failed to prove by a preponderance of the evidence that he is entitled to benefits for permanent disability in excess of the benefits proved for under Ark. Code Ann. §
11-9-521 (1987).
[11] IT IS SO ORDERED.
ELDON F. COFFMAN, Chairman
[12] Commissioner Humphrey concurs.
[13] Commissioner Wilson concurs.
