GRUBER v. MAVERICK TRANSPORTATION, INC, 2006 AWCC 84

CLAIM NO. F202021

HENRY GRUBER, JR., EMPLOYEE, CLAIMANT v. MAVERICK TRANSPORTATION, INC., EMPLOYER, RESPONDENT NO. 1, LIBERTY MUTUAL INSURANCE CO., INSURANCE CARRIER, RESPONDENT NO. 1, DEATH PERMANENT TOTAL DISABILITY FUND, RESPONDENT NO. 2

Before the Arkansas Workers’ Compensation Commission
OPINION FILED MAY 15, 2006

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

Claimant represented by the Honorable M. Keith Wren, Attorney at Law, Little Rock, Arkansas.

Respondents No. 1 represented by the Honorable David C. Jones, Attorney at Law, Little Rock, Arkansas.

Respondent No. 2 represented by the Honorable Judy Rudd, Attorney at Law, Little Rock, Arkansas.

Decision of the administrative law judge: Reversed.

OPINION AND ORDER
Respondent #1 appeals an administrative law judge’s opinion filed November 17, 2005. The sole issue on appeal is whether the claimant has proven by a preponderance of the evidence that he is entitled to wage-loss disability. The administrative law judge found, in pertinent part, “The claimant has proven by a preponderance of the evidence that he sustained wage-loss disability in the amount of 45% in addition to the 6% rating to the body as a whole, for a total of 51%. The compensable injury is the major cause of disability.”

After reviewing the entire record de novo, the Full Commission finds that the claimant has failed to prove by a preponderance of the evidence that he sustained any wage-loss disability over and above his 6% anatomical impairment rating to the body as a whole, which has been accepted by respondent # 1. Therefore, the decision of the administrative law judge is hereby reversed and this claim for wage-loss is denied and dismissed.

I. History

The claimant, age 60(9/17/45), began working for the respondent as a truck driver in March of 2000. The claimant sustained an admittedly compensable injury to his back on February 13, 2002, while working for the respondent.

The claimant has received treatment from several out-of-state physicians, particularly from West Virginia. On February 19, 2002, the claimant sought treatment for his back injury from the Family Health Center in West Virginia. At that time, the claimant complained of back pain and weakness on the right side. Physical examination revealed severe spasm of the L3-S3 region.

X-rays were taken on February 26, 2002, with the following impression, “spondylosis, mild left scoliosis.” An MRI was also taken of the claimant’s lumbar spine on that same date, which revealed the following impression:

1). Left lateral L3-4 disc herniation with possible left root compression.

2). Milder left lateral L4-5 disc protrusion.

3). Spondylosis with L4-S1 narrowing and spurring. Degenerative disc disease at both of these levels as well.

On March 11, 2002, the claimant was seen in neurosurgical clinic with Dr. Warren Wilson. He reported:

My clinical impression is that this patient has lumbar spondylosis. He has disk bulging and no evidence of acute nerve root compression on the right side. There is no definite surgical lesion. Probably his pain is related to facet arthritis or disk degeneration. I recommend he continue this medical therapy. . . .

A physical therapy plan of care was formulated for the claimant on March 19, 2002 at the Wheeling Hospital Physical Therapy Clinic in West Virginia. The claimant underwent 28 sessions of treatment with some reports of improvement. However, the claimant continued with complaints of low back pain. A lumbar myelogram was performed on June 27, 2002, with the following impression:

Degenerative disc disease in the lower lumbar spine with ventral sac impressions at L4-5 and L2-3. . . .

On July 24, 2002, Dr. Jory Richman reported:

HISTORY: Mr. Gruber [claimant] returns today essentially with no change in his chronic low back pain with radiation into the left leg. He had a CT myelogram performed which reveals an L3-L4 disc protrusion and is causing some foraminal narrowing on the left side. He also has a mild to moderate degree of spinal stensois which is predominantly left-sided at L4-5.
PHYSICAL EXAMINATION: His physical examination is unchanged. He has no discrete neurologic deficits in his lower extremities.
PLAN: Hank has an L3-4 disc herniation which I suspect is from his work injury that occurred in February. He also has a co-existent spinal stenosis at both L3-4 and L4-5 which is not work related. I believe he should undergo epidural steroid injections which hopefully will alleviate his back and left leg pain. Mr. Gruber seems to feel that he would be unable to return to work. I would not recommend surgical intervention given the relatively mild degree of neurocompression present. He will follow up on a p.r.n. basis.

On September 9, 2002, Dr. Samy Sakla reported that since the claimant did not have relief with the previous epidural, repeating the same would not be beneficial to him. Therefore, Dr. Sakla suggested the claimant undergo a discogram and intradiscal lesioning.

The claimant was seen by Dr. Riccardo Marinelli on February 21, 2003 due to continued complaints of low back pain and bilateral lower extremity pain, left side greater than right. At that time, Dr. Marinelli reported that the claimant had undergone an additional epidural injection on January 17, 2003, without any significant change in his pain complaints for any period of time. Dr. Marinelli recommended an MRI of the lumbar spine to rule out any further pathology, and that he obtain EMG (Electromyography)/nerve conduction velocity studies of both lower extremities to rule out any further radicular symptoms. He also recommended that the claimant undergo a left L5 nerve root injection after these studies had been completed.

On March 3, 2003, the claimant underwent an EMG, which revealed the following impression:

Normal nerve conduction velocities and needle studies of the lower extremities. There was no evidence of radiculopathy or neuropathy detected.

Dr. W. Timothy Ward reported on March 25, 2003, in pertinent part:

It is my impression that there may be some permanency to this claim. I think it is entirely possible that Mr. Gruber will not have much change in symptomatology at this point.
To that end, I do believe that Mr. Gruber may be nearing maximum medical improvement although weight reduction and aerobic conditioning may well improve his situation.
It is my feeling that Mr. Gruber can return to work at this time.
It is my opinion that surgery is not necessary for Mr. Gruber at this time. In fact I think that any type of surgical intervention would not be likely to afford Mr. Gruber relief of his pain.
It is really not possible for me to specify precisely what Mr. Gruber’s specific physical capacities entail. I think that can be expected to perform the same physical function that would be required of an (sic) 57 year old male who is moderately overweight and moderately deconditioned.

Nonetheless, on March 27, 2003, the claimant underwent a left L5 transforaminal steroid nerve root injection with Dr. Marinelli. The claimant tolerated the procedure well and was discharged home in good condition. On May 9, 2003, Dr. Marinelli reported that the claimant had experienced only an approximate 15% improvement of his pain for several days after the transforaminal steriod nerve root injection, as he continued to complain of bilateral lower back pain with radiation into the lower extremities. Since the claimant had ongoing pain complaints without response from the lumbar epidural steroid injections, as well as the most recent transforaminal steroid nerve root injection, Dr. Marinelli felt it would be reasonable for the claimant to seek a surgical opinion of his ongoing complaints of pain.

The claimant was seen by his primary care physician, Dr. Kalpana Char, on May 22, 2003, for follow-up care of his ongoing complaints of back pain. At that time, Dr. Char placed the claimant on neurosurgical consult for evaluation and treatment, and he ordered x-rays of the lumbosacral spine. X-rays were taken on May 22, 2003, with the following impression:

1. No evidence of fracture, subluxation or dislocation of lumbosacral spine.
2. Minimal degenerative changes of lumbosacral spine with mild degenerative disc disease at L4-L5 intervertebral space.

On June 23, 2003, the claimant was seen for focused follow-up care with Dr. Char. At that time, Dr. Char reported, in pertinent part:

. . . He was seen here about a month ago for swelling in his lower back. He had received at least three epidural steroid injections in the past, and was under the care of outside Workman’s (sic) Compensation pain specialist, and neurosurgeon. Workman’s (sic) Compensation is no longer covering his care, so he is transferring to the VA for this problem of back pain. . . .

Dr. Char further reported that the claimant was awaiting a consultation with a neurosurgeon, and he scheduled the claimant for follow-up care in six months with no specific work restrictions being placed on him.

Dr. John Moossy, a neurosurgeon, saw the claimant on December 22, 2003. He reported that the claimant’s MRI and Stentor system showed moderate degenerative disc disease from L4 through S1, but no obvious nerve root impression. Therefore, Dr. Moossy recommended a course of Aqua therapy and possible re-evaluation by their Pain Clinic.

On January 7, 2004, the claimant was seen for follow-up care of back pain complaints with Dr. Char. Dr. Char reported that the claimant was being seen in part, for chronic back pain secondary to degenerative disc disease. He wrote, “Apparently, he is not a candidate for surgery. He was advised to have a course of aqua therapy and re-evaluation by the pain clinic. He has ongoing back pain, and radiation down both leg. . . .” Dr. Char placed no specific work restrictions on the claimant, and he directed the claimant to see him in a follow-up visit in six months.

Respondent #1 paid appropriate medical expenses and temporary total disability compensation for the claimant’s compensable back injury until April 11, 2003. A hearing was held before the Commission on February 27, 2004 to determine the claimant’s entitlement to additional medical benefits and additional temporary total disability compensation. After the hearing, in an opinion dated May 11, 2004, the Commission found that the claimant’s healing period had ended March 25, 2003 and that respondent #1 had paid all appropriate temporary total disability compensation and medical benefits for the claimant’s compensable back injury. This opinion was not appealed and has become final.

At the request of respondent #1, on April 4, 2005, the claimant underwent an independent medical evaluation with Dr. Barry Baskin due to complaints of low back pain and bilateral leg numbness. Dr. Baskin reported, in pertinent part:

He has really minimal disc abnormalities. There are some mild abnormalities at the L3-4, 4-5, and L5-S1 level, mostly with degeneration, which appears to be drying out and without any substantial disc herniations. There are some focal disc bulges, mostly left paracentral. The patient has had EMG nerve conduction studies that did not reveal any evidence of radiculpathy. He is very stiff on exam. He has no focal neurologic deficits. His reflexes are symmetric. He has good strength and normal sensation. . . .

Using the AMA Guides to the Evaluation of Permanent Impairment
(4th ed. 1993), Dr. Baskin assigned a 6% anatomical impairment rating to the body as a whole for the claimant’s compensable back injury. Dr. Baskin assessed this 6% rating for the two level disc bulges, but he did not rate the claimant on the degenerative spondylosis, which he felt was not related to his injuries. Respondent #1 paid this 6% rating to the body as a whole as assessed by Dr. Baskin. However, respondent #1 has resisted the claimant’s claim for wage-loss disability benefits. Therefore, the claimant has brought this claim asserting his rights to these benefits.

A hearing was held in this matter on August 18, 2005. At the hearing, the claimant gave testimony. According to the claimant, the highest level of education he has completed is the 12th grade. Immediately following high school, the claimant spent four years in the United States Air Force. According to the claimant, there, he worked as a weight load ballast technician wherein his job duties included loading an aircraft and securing it. The claimant also testified that he did some construction work and drove a truck in upstate New York after being discharged from the Air Force. Thereafter, the claimant moved to West Virginia, and worked driving a truck for Kroger. According to the claimant, he drove for Kroger from 1971 until about 1993 or 1994. The claimant testified that he next worked for various trucking outfits. According to the claimant, he has worked as driver of a concrete mixer truck, a crane truck, hauled steel, hauled oversized loads, and things of that nature. The claimant specifically testified that from 1971 until his injury, all of his work experience has entailed driving a truck. The claimant testified that he hauled steel and drove trucks for respondent #1. According to the claimant, in this position, he was required to chain down his loads, secure them and pick up timber and “stuff.” The claimant testified he sustained his compensable back injury on February 13, 2002, while in New Madrid, Missouri. The claimant testified he was loading some billets and had some timbers in front of the truck and bent over to pick up one of them, and as he pulled on it “something snapped in his back.” According to the claimant, by the time he got the load secured, he could hardly walk. The claimant testified that although the workers’ comp carrier is not responsible for paying for any additional treatment pursuant to a previous hearing in the case, he has continued to seek treatment for his back through the VA (Veterans Administration). The claimant further testified that he has been placed on aqua therapy, and he takes Darvocet and muscle relaxants. According to the claimant, since February of 2002, he has had trouble with constant pain in his back and is unable to sit for a long period of time. In addition, the claimant essentially testified he is unable to bend over, do various things, and has to constantly move.

The claimant admitted to having sustained a back strain in 1982. Other than the incident of the back strain in 1982, prior to 2002, the claimant did not recall having ever received any medical treatment for his low back, nor did he recall having missed any work due to low back problems.

According to the claimant, while working for respondent #1, in order to make a decent living, he had to drive 3,000 miles per week. The claimant essentially testified that he is of the belief that he is unable to sit and drive 3,000 miles a week. According to the claimant, he now resides in West Virginia. He also admitted to having driven from West Virginia to the hearing, which was held in Little Rock. The claimant testified it is approximately 813 miles from West Virginia to Little Rock. According to the claimant, he left home on Sunday morning, and it took him until Thursday to get to Little Rock, with frequent stops and he averaged about 200 or so miles a day. The claimant testified that he does not think a trucking outfit would hire him if he is only able to drive a thousand or 1,200 miles a week.

The claimant testified that since his injury, he has not looked for any other work due to his back problem and because he does not believe anybody would want to hire “a cripple.” He further testified that he has tinnitis in the right ear, which is ringing in the ears, which resulted from “a buildup of wax and stuff in there.” The claimant testified that he wears a hearing aid due to having worked around constant noise all the time. According to the claimant, he found out about this condition after 2002, but it never prevented him from working prior to February 13, 2002.

The claimant testified that he currently draws Social Security benefits. According to the claimant, once he began drawing Social Security benefits, his VA pension was terminated because he cannot collect both at the same time. The claimant admitted to drawing a monthly Teamster’s pension in the amount of $651.00, and monthly Social Security benefits in the amount of approximately $1,419.00. The claimant testified he earned approximately $800.00 or $900.00 per week (before taxes), while working for the respondent.

On cross-examination, the claimant admitted that he may have pulled a muscle or something after his 1982 injury, which would have been sometime in 1985. The claimant further admitted that he may have had some radiation of pain down his legs during the 1982 and `85 incidents. The claimant admitted that during the previous hearing in February of 2004, he was shown a report by Dr. Ward wherein he had been released to work. He further admitted that since that hearing, he has not looked for work, not even as a van driver or of some type of small vehicle. The claimant admitted to having driven to the previous hearing. According to the claimant, he can drive about a hundred miles without having to stop and stretch. The claimant admitted that he now draws about $24,000 per year, and while working for respondent #1, before taxes he earned approximately $43,000 per year. The claimant testified:

Q. And so by the time you took your taxes out of Maverick you’re making pretty close to the same amount you used to is that correct?

A. Might of been.

Q. Okay. And so needless to say, you don’t have a whole lot of motivation to try to return to work, do you?
A. Yes, I do. But have you ever tried to work with a bad back?
Q. And once again, you haven’t looked for a job, have you?

A. No I haven’t.

Prior to the hearing, a prehearing telephone conference was held in this claim on July 26, 2005, and as a result, a Prehearing Order was entered in this matter on August 4, 2005. The following stipulations were submitted by the parties and accepted:

1). That an employee-employer-carrier relationship existed with respondent #1 on February 13, 2002, at which time the claimant sustained a compensable injury to the body as a whole at a compensation rate of $425.00/$319.00.
2). Medical expenses, and temporary total disability were paid until April 11, 2003.
3). The claimant receives disability benefits from the Veterans Administration and Social Security Disability benefits.
4). This claim was the subject of a previous hearing with an Order entered by the administrative law judge on May 11, 2004. Based on that Order, the claimant’s healing period ended March 25, 2003.
5). Permanent impairment, 6% to the body as a whole was assessed by Dr. Baskin on April 4, 2005, after the Order was issued.

By agreement of the parties, the issues to be litigated at the hearing were limited to the following:

1). Wage-loss disability.

2). Second Injury Fund liability.

3). Credit.

4). Controversion and attorney’s fees.

All other issues were reserved.

The claimant contended he remains symptomatic from his back injury and is unable to work. He further contended that because of his age, he is not a viable candidate for rehabilitation. The claimant seeks payment of permanent total disability benefits or alternatively wage loss in excess of the impairment rating based on his age, 60 (D.O.B, September 17, 1945), education (high school), work experience, (Air Force load master, operator of construction equipment, and long-haul trucker), injury, permanent impairment, and work restrictions.

In contrast, respondent #1 contended that the claimant is capable of working based on Dr. Ward’s assessment and therefore he is not entitled to wage loss benefits. Furthermore, the “major cause” of the claimant’s disability is the result of a preexisting degenerative condition and other unrelated health problems and not the result of the compensable injury. Alternatively, in the event of an award, wage loss should be minimal as the claimant has not pursued employment options. Also, the respondent would be entitled to a credit for overpayment of temporary total disability benefits from March 25, 2003 to April 11, 2003.

After a hearing before the Commission, the administrative law judge found, among other things, “The claimant has proven by a preponderance of the evidence that he sustained wage-loss disability in the amount of 45% in addition to the 6% rating to the body as a whole, for a total of 51%. The compensable injury is the major cause of disability.”

Respondent #1 appeals to the Full Commission.

II. Adjudication

Anatomical Impairment /Wage-loss Disability

To be entitled to any wage-loss disability benefit in excess of permanent physical impairment, a claimant must first prove, by a preponderance of the evidence, that he sustained permanent physical impairment as a result of a compensable injury.Wal-Mart Stores, Inc. v. Connell, 340 Ark. 475, 10 S.W.3d 727
(2000). Any determination of the existence or extent of physical impairment shall be supported by objective and measurable findings. Ark. Code Ann. § 11-9-704(c)(1).

Pursuant to Ark. Code Ann. § 11-9-522(g) and our Rule 099.34, the Commission has adopted the AMA Guides to the Evaluation ofPermanent Impairment (4th ed. 1993), to be used to assess anatomical impairment. Dr. Baskin in the present matter assigned a 6% anatomical impairment based on the Guides. He assessed this 6% rating for the two level disc bulges, but he specifically did not include the degenerative spondylosis in the rating. Respondent #1 has accepted and paid the rating assessed by Dr. Baskin. The Full Commission finds that the claimant proved he was entitled to this 6% anatomical impairment rating, that the rating was based on objective and measurable physical findings, and that the compensable injury was the major cause of the claimant’s 6% anatomical impairment. Ark. Code Ann. § 11-9-102(4)(F)(ii)(a).

The wage-loss factor is the extent to which a compensable injury has affected the claimant’s ability to earn a livelihood. In determining wage-loss disability, the Commission may take into consideration the worker’s age, education, work experience, medical evidence and any other matters which may reasonably be expected to affect the worker’s future earning power. Such other matters are motivation, post-injury income, credibility, demeanor, and a multitude 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. FranklinElectric, 32 Ark. App. 168, 798 S.W.2d 130 (1990). A claimant’s lack of interest in pursuing employment with his employer and negative attitude in looking for work are impediments to our full assessment of wage loss.

In the present matter, the administrative law judge found that the instant claimant is entitled to 45% wage-loss disability over and above his 6% anatomical impairment rating which has already been accepted and paid by respondent #1, thereby giving him a total permanent partial disability of 51%. The Full Commission finds that the claimant has failed to prove that he sustained any wage-loss disability. The instant claimant is 60 years of age. He is a high school graduate, and he has past relevant work experience as an over-the-road truck driver. Although the claimant suffered from preexisting degenerative disease and sustained two prior back injuries (in 1982 and 1985), he did not require continuing medical treatment for these conditions, nor did they cause any disability. The claimant has undergone extensive conservative treatment for his compensable back injury from numerous doctors and health care professionals, in the form of various medications, physical therapy treatment, epidural steroid injections, and a transforaminal steroid nerve root injection. Following the claimant’s compensable injury, and resulting conservative treatment, on March 25, 2003, Dr. Ward opined that the claimant was nearing his healing period. He also opined that the claimant was not a candidate for surgery and released him to return to work and from care without any restrictions. Dr. Moossy, a neurosurgeon, also opined that the claimant was not a candidate for surgery. In fact, none of the claimant’s many treating physicians has pronounced him a candidate for surgery, placed any work restrictions on him or directed him to refrain from returning to work as an over-the-road truck driver. In an opinion dated May 11, 2004, the Commission found that the claimant’s healing period had ended as of March 25, 2003, and it further found that the claimant was not entitled to any additional medical benefits or temporary total disability compensation for his back compensable injury. On April 4, 2005, Dr. Baskin assigned the claimant a 6% anatomical impairment to the body as a whole for his two level disc bulges, but he did not include his preexisting degenerative spondylosis in the rating, and he opined that the claimant’s disc abnormalities were “minimal.” The claimant admitted that he has not sought work as a truck driver or any other suitable employment since he last worked for respondent # 1, and he further admitted that he is not seeking employment. However, there is no probative evidence before the Commission demonstrating that the claimant is precluded from returning to gainful employment as the driver of a small truck or even as an over-the-road truck driver. Based on diagnostic tests, Drs. Moossy and Wilson have opined that there is no evidence of nerve root compression. Moreover, on March 11, 2002, Dr. Wilson opined that the claimant’s complaints of pain were probably related to his “facet arthritis or disc degeneration.” The claimant draws Social Security Disability benefits, and a Teamter’s pension (which amounts to what he was earning while working for respondent #1). The Full Commission finds that the claimant’s lack of motivation in pursuing work as a truck driver and/or other suitable work substantially impedes his future earning capacity. Therefore, based on the claimant’s age, education, work experience, anatomical impairment rating of 6% to the body as a whole, his lack of motivation to return to work as a truck driver or other suitable work, and considering he has been released to return to work without any physical restrictions or limitations, we find that the claimant has failed to show by a preponderance of the evidence that he has suffered any wage-loss disability. As such, we find the administrative law judge’s award of a 45% wage-loss disability should be reversed.

Based on our de novo review of the entire record, the Full Commission finds that the claimant has failed to prove by a preponderance of the evidence that he sustained any wage-loss disability in excess of his 6% anatomical impairment rating. The decision of the administrative law judge is hereby reversed, and this claim for wage-loss disability is denied and dismissed.

IT IS SO ORDERED.

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

Commissioner Turner dissents.