CLAIM NO. E320142
Before the Arkansas Workers’ Compensation Commission
OPINION FILED MAY 11, 1999
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by J. RANDOLPH SHOCK, Attorney at Law, Fort Smith, Arkansas.
Respondents represented by J. RODNEY MILLS, Attorney at Law, Fort Smith, Arkansas.
[1] OPINION AND ORDER[2] This case comes on for review before the Commission on remand from the Arkansas Court of Appeals. [3] The Court directed the Commission to determine whether claimant’s admittedly compensable injury is the major cause of her permanent and total disability; whether Ark. Code Ann. §11-9-519(g) (Repl. 1996) is unconstitutional; and whether attorney’s fees for controversion can be awarded in this case. [4] Permanent total disability is defined as the “inability, because of compensable injury or occupational disease, to earn any meaningful wages in the same or other employment.” Ark. Code Ann. § 11-9-519(e)(1) (Supp. 1997). Claimant has the burden of proving by a preponderance of the evidence that the compensable injury has rendered her permanently and totally disabled. Ark. Code Ann. § 11-9-519(e)(2) (Supp. 1997); Ark. Code Ann. § 11-9-705(a)(3) (Repl. 1996). Finally, Ark. Code Ann. § 11-9-102(5)(F)(ii) (a) and (b) (Supp. 1997) provide the following:
[5] After our de novo review of the entire record, we find that claimant has proven by a preponderance of the evidence that the compensable injury is the major cause of her permanent and total disability. [6] Claimant is presently 78 years old and has a 12th grade education. Her employment history includes sales in retail stores. She has been employed in the employer’s Daycare Center for approximately 18 years prior to the compensable injury, which was a broken hip as a result of a fall on December 10, 1993. Subsequently, a bipolar arthroplasty (replacement) was performed. She has considerable difficulty with her balance, which feeds the fear of falling or getting knocked down. We would also note that it was a fall that resulted in her compensable injury. She cannot sit or stand for prolonged periods of time. While claimant admitted driving, shopping, and some housecleaning, these activities are minimal and take considerable time to accomplish. A careful review of the record as a whole indicates that claimant’s daily activities are quite restricted as a result of the compensable hip injury. It is understandably important to claimant that she continue to be able to take care of her daily needs. This is certainly no reason to penalize such a motivated and self-sufficient individual. Even Dr. Schroeder noted that claimant was “extremely independent in her self-care and mobility status.” [7] Claimant’s medical history includes unstable angina, hypertension, atrial arrhythmia, COPD, asthma, and surgeries for the femoral artery, cholecystectomy, and thyroidectomy. However, we find that there is insufficient evidence in the record that any of these conditions are causing her disability or prolonging any limitations or need for treatment that claimant has experienced as a result of the work-related injury. Therefore, we find that the compensable injury is the major cause of claimant’s disability. [8] While we realize that claimant may have expressed some concern about returning to work in an environment consisting of rambunctious or lively youngsters, this was expressed prior to the end of her healing period. Once claimant’s healing period ended in May 1994, Dr. Buie opined that “I don’t think she can or should return back to work and under the circumstances, I think she can be rated at this point, to be followed on a long term basis.” Further, in a report dated June 10, 1994, Dr. Buie stated that “. . . I should note that following review and discussion with the patient of returning to the nursery, I think it is contraindicated. I think she would probably end up falling and sustaining reinjury.” [9] It has been argued that the major cause of claimant’s permanent and total disability “is claimant’s age, coupled with her fear of reinjury upon returning to the workforce . . .” However, claimant’s age, as well as her fear, are each appropriate factors to consider in determining the extent of claimant’s loss in wage earning capacity. We would also point out that Jonna Gaddis, Director of Preschool Ministries with the employer, had to admit that no offer of a job was made to claimant and that they “haven’t really discussed returning to work.” Therefore, there has been no offer of work by the employer. [10] The Court also ordered us to determine whether the social security offset provision of Ark. Code Ann. § 11-9-519(g) (Repl. 1996) is unconstitutional. Since our original opinion in this case, we have had the opportunity to rule on this issue. InLouise Maxey v. Tyson Foods, Inc., Full Commission Opinion filed August 20, 1998 (E704039), we relied on the Arkansas Supreme Court’s decision in Golden v. WestarkCommunity College, 333 Ark. 41, 969 S.W.2d 154 (1998) to find that the statute in question was indeed unconstitutional. We stated the following:Permanent benefits shall be awarded only upon a determination that the compensable injury was the major cause of the disability or impairment.
If any compensable injury combines with a preexisting disease or condition or the natural process of aging to cause or prolong disability or a need for treatment, permanent benefits shall be payable for the resultant condition only if the compensable injury is the major cause of the permanent disability or need for treatment.
[11] Finally, our finding that claimant’s benefits for permanent and total disability cannot be offset pursuant to Ark. Code Ann. § 11-9-519(g) (Repl. 1996), makes it unnecessary to rule on the third and final issue because claimant’s attorney is now entitled to a fee for benefits “controverted and awarded.” [12] Based on the above evidence, we find that claimant has proven by a preponderance of the evidence that the compensable injury is the major cause of her permanent and total disability. Additionally, we find that Ark. Code Ann. § 11-9-519(g) (Repl. 1996) is unconstitutional. [13] IT IS SO ORDERED. [14] _____________________________Finally, we find that respondent is not entitled to the dollar for dollar offset for social security benefits pursuant to Ark. Code Ann. § 11-9-519(g) (Repl. 1996). In Golden v. Westark Community College ___ Ark. ___, ___ S.W.2d ___ (1998) the Arkansas Supreme Court held that Ark. Code Ann. § 11-9-522(f)(1) was unconstitutional. The reasoning and rationale employed by the Court to find the dollar for dollar offset in Ark. Code Ann. § 11-9-522
unconstitutional is applicable to the dollar for dollar offset in Ark. Code Ann. § 11-9-519(g). Therefore, for those reasons set forth in Golden, supra, we find that the dollar for dollar offset in Ark. Code Ann. § 11-9-519(g) is unconstitutional.
ELDON F. COFFMAN, Chairman _____________________________ PAT WEST HUMPHREY, Commissioner [15] Commissioner Wilson dissents. [16] DISSENTING OPINION
[17] I must respectfully dissent from the majority opinion with regard to respondents’ argument on cross-appeal I find that claimant has failed to prove by a preponderance of the evidence that her compensable injury was the major cause of our finding of permanent and total disability. The Administrative Law Judge’s analysis with regard to wage loss which we adopted as our own states:
[18] No finding was made with regard to whether claimant’s compensable injury was the major cause of her disability or impairment. [19] A review of the medical records reveals that claimant has recovered from her compensable injury. Within five months of receiving her injury, claimant’s primary treating physician, Dr. James Buie, noted excellent motion with good stability and a good gait. After noting how well claimant recovered from her injury, Dr. Buie wrote in his April 22, 1994, report that claimant was the first to bring up the fact that claimant did not want to return to work. Specifically, Dr. Buie noted:The claimant is a 77-year-old female who testified she has a high school education and whose primary source of income during her working life was in retail sales. She was a sales clerk for the Boston Store and for Sears Department Store. As a result of her injury, she sustained a 50% permanent partial impairment rating to the left lower extremity and a 20% permanent physical impairment to the body as a whole. I find that the extent of the claimant’s injury, based on her age, education, work experience and lack of transferrable job skills, that she is, in fact, permanently and totally disabled.
[20] After realizing claimant’s concern, Dr. Buie noted that claimant should not return to work under the circumstances. It appears that the only medical reason for keeping claimant off work is her physician’s willingness to accommodate her fear of being knocked down. There is no evidence in any of the medical records that claimant’s physical condition prevents her from returning to work. On the contrary, the evidence reveals that claimant is self sufficient and presently lives in a second story apartment complex. Claimant can drive an automobile, cook and clean for herself and she performs her own shopping. [21] Respondent presented evidence that work would be made available to the claimant outside and away from the children, thus eliminating claimant’s fear. However, claimant has demonstrated a lack of desire to work at all. Claimant’s response to the job where they would like to place her is that it is “where they put old people that they think can’t work no more.” [22] Ark. Code Ann. § 11-9-102(5)(F)(iii)(a) states:At the time that she was going to leave, she informed me that she wanted me to keep her off work and not send her back to work at the nursery for at least another six months because she was frightened that she might be hit by one of the children. At this point, having realized that there is a compensatory injury, I have told her that I would need to see her back in a couple of months.
[23] With regard to permanent total disability, Ark. Code Ann. §11-9-519(e)(1) states:Permanent benefits shall be awarded only upon a determination that the compensable injury was the major cause of the disability or impairment. (emphasis added)
[24] Ark. Code Ann. § 11-9-522(b)(1) further provides:Permanent total disability means inability, because of compensable injury or occupational disease, to earn any meaningful wages in the same or other employment.
[25] Finally, Ark. Code Ann. § 11-9-704(c)(3) provides:In considering claims for permanent partial disability benefits in excess of the employee’s percentage of permanent physical impairment, the Commission may take into account, in addition to the percentage of permanent physical impairment, such factors as the employee’s age, education, work experience, and other matters reasonably expected to effect his future earning capacity.
[26] Strictly construing these sections, we are statutorily required to assess whether the compensable injury is the major cause of our finding of permanent and total disability or wage loss disability. Although we are allowed to consider the claimant’s age, education, work experience, and other matters reasonably expected to effect the claimant’s future earning capacity, in reaching our conclusion regarding permanent and total disability and wage-loss disability, we must determine whether the injury itself accounts for more than 50% of such disability before the additional disability over and above the physical impairment rating may be compensable. [27] In the present claim, the medical evidence clearly reveals that claimant’s injury is not the major cause of our finding of permanent and total disability. It is evident that it is claimant’s age, coupled with her fear of re-injury upon returning to the work force, which accounts for more than 50% of our finding of permanent and total disability. Although age is a factor to be considered, this should not be the controlling factor. Claimant does not want to be placed in a position for “old people”. Moreover, she is afraid to return to her previous job. It is these two factors which are the primary or major cause for her refusal to return to work, not her compensable injury. Claimant’s injury has not limited her to the extent of permanent and total disability. Accordingly, if the claimant is permanently and totally disabled, it is my opinion that claimant has failed to prove by a preponderance of the evidence that her compensable injury is the major cause of permanent and total disability. [28] Since I find claimant has failed to prove entitlement to additional benefits, I find that the third issue on remand, attorney’s fees, is moot. Therefore, I respectfully dissent from the majority opinion. [29] ______________________________ MIKE WILSON, Commissioner“Administrative Law Judge, the Commission and any reviewing courts shall construe the provisions of the chapter strictly.”