CLAIM NOS. E113512 E101707
Before the Arkansas Workers’ Compensation Commission
OPINION FILED MARCH 7, 1995
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by WILLIAM S. SWAIN, Attorney at Law, Russellville, Arkansas.
Respondent represented by ROBERT L. HENRY, III, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Reversed.
[1] OPINION AND ORDER
[2] This matter comes on for review by the Full Commission from the decision of the Administrative Law Judge filed on March 3, 1994 finding that claimant has proven by a preponderance of the credible evidence that she is permanently and totally disabled.
(1989); and Fowler v. McHenry, 22 Ark. App. 196, 737 S.W.2d 663 (1987). [5] Claimant suffered a scheduled injury. In December of 1990, she was diagnosed with right carpal tunnel syndrome and underwent surgery. In December of 1991, claimant terminated her employment with respondent. Claimant had began to suffer from left carpal tunnel syndrome but elected not to undergo surgery. Prior to her terminating her employment, claimant was put on light duty performing a simple job involving “turning front pockets.” The evidence indicates that claimant was provided work within her limitations and could have continued to perform this if she had desired. Thus, claimant is not entitled to any wage loss benefits. [6] The evidence also indicates that the an anatomical impairment rating was assessed by an unauthorized physician, Dr. Hickey. Dr. Hickey assessed claimant a 15% to the upper extremities. However, there is no indication upon what he based this impairment rating. The rating does not appear to be based upon objective and measurable findings which are required by the Workers’ Compensation Code. A.C.A. §11-9-704. Thus, an additional reason for our finding that claimant is not entitled to any permanent disability over and above her anatomical impairment. [7] Also, when considering the appropriate wage loss factors, age, education, pre-injury and post-injury wages, motivation to return to work and rehabilitation, claimant has failed to prove by a preponderance of the credible evidence that she is permanently and totally disabled. [8] It was uncontroverted and fully admitted that work was provided to claimant within her restrictions if she had wished to perform it. Claimant chose to end her work at respondent and has not sought any employment since she terminated her employment. We find it significant that claimant has not sought any employment and has not even gone to the Employment Security Division. Claimant is 51 years old and is married. She has completed the 9th grade, can read, write, add and subtract, and make change. Claimant has testified that she is able to perform many daily activities such as driving a car, bending over, walking, cooking. She readily acknowledged that her primary limitation is her subjective complaints of pain in her hands, wrists and arms. The aforementioned shows that not only is claimant highly unmotivated to return to work, but also self-limiting. [9] The odd-lot doctrine does not apply. Claimant has failed to establish a prima facie case that she is permanently and totally disabled. As stated, claimant is unmotivated to return to work, self-limiting. Evidence shows that work was readily available to claimant and has many transferrable skills. Claimant fully admits that she terminated her employment with respondent on December 4, 1991. Therefore, the odd-lot doctrine is not applicable to claimant since she failed to show a prima facie case that she is permanently and totally disabled. It appears that gainful employment within her restrictions is available. [10] It is also significant that claimant has failed to pursue additional medical treatment. The Administrative Law Judge apparently is under the impression that respondent has withheld medical treatment from claimant after Dr. Thompson’s withdrawal. However, a review of the evidence indicates that this is inaccurate. Respondent had made appointments for claimant to undergo medical treatment but she failed to show up for the appointments or reschedule the appointments. Additionally, claimant chose not to have the surgery recommended by her treating physician and has waived rehabilitation. [11] An award of permanent and total disability is not an automatic award. Claimant has failed to prove by a preponderance of the credible evidence that she is unable to be gainfully employed. The record indicates that claimant was offered regular employment within her restriction at respondent until she made the decision of foregoing surgery, terminated her employment, ceased to seek employment and/or even investigate rehabilitation. Therefore, we reverse the decision of the Administrative Law Judge finding that claimant is entitled to any permanent partial disability benefits over and above her anatomical impairment and that she is permanently and totally disabled. [12] IT IS SO ORDERED.
JAMES W, DANIEL, Chairman ALLYN C. TATUM, Commissioner
[13] Commissioner Humphrey dissents.[14] DISSENTING OPINION
[15] I must respectfully dissent from the opinion of the majority finding that claimant failed to prove by a preponderance of the evidence that she is permanently and totally disabled. The decision of the Administrative Law Judge awarding benefits for permanent and total disability should be affirmed.