CLAIM NO. E219163
Before the Arkansas Workers’ Compensation Commission
OPINION FILED NOVEMBER 1, 1994
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by DONIS B. HAMILTON, Attorney at Law, Paragould, Arkansas.
Respondents represented by MICHAEL R. MAYTON and WILLIAM J. STANLEY, Attorneys at Law, West Memphis, Arkansas.
Decision of Administrative Law Judge: Affirmed as modified.
[1] OPINION AND ORDER
[2] Both parties appeal an opinion of the Administrative Law Judge filed on September 15, 1993.
review of the entire record, we find that claimant has proven by a preponderance of the evidence that she is entitled to benefits for a wage loss disability of 15% to the body as a whole, and the opinion of the Administrative Law Judge is modified accordingly. [5] Claimant is 48 years old and had a ninth grade education. Claimant’s job history includes employment as a machine operator in a factory, a sales clerk in a shoe store, and as an owner with her husband, of a service station where she pumped gas, operated the cash register, ran errands and did “the daily book work.” At the time of her injury, her job duties with the employer involved attaching front pockets on pants. [6] On or about May 22, 1992, claimant sustained an admittedly compensable back injury while lifting a bundle of pants. Respondents eventually sent claimant to Dr. Len Kemp, who referred claimant to Dr. Rebecca J. Barrett-Tuck. Diagnostic studies revealed a small herniated nucleus pulposus at L4-L5. Claimant has chosen to delay surgery because of the small size of the herniation and the fact that complete relief of pain cannot be guaranteed. [7] The parties stipulated that claimant’s healing period ended on April 13, 1993. Dr. Barrett-Tuck opined that claimant had a permanent anatomical impairment of 7% to the body as a whole. Claimant was released to light duty work with no repetitive bending, no standing or sitting for prolonged periods of time and no lifting greater than 15 pounds. Dr. Larry E. Mahon evaluated claimant on one occasion at the request of respondents. Dr. Mahon opined that claimant was capable of returning to work but should avoid repetitive stooping, bending at the waist and lifting greater than 20 to 30 pounds. Dr. Mahon does not mention any restrictions concerning claimant’s ability to stand, sit or walk. [8] After her healing period ended, claimant presented to the employer with a note from Dr. Barrett-Tuck concerning her ability to return to work with restrictions. Tony Rowton, with the employer, informed claimant that the only light duty job available was carrying “repairs” to other workers to fix. This position involves standing the majority of the day and “walking back and forth to each machine.” While this was the only position offered claimant by the employer, Rowton and claimant agreed that the position was not suitable due to the standing and walking requirements. [9] Claimant testified that she is never free of pain, for which she takes nonprescription Ibuprofen; that she cannot sit, stand or walk for prolonged periods of time; and that she can perform house work for about 20 minutes but then must lie down for approximately 30 minutes. [10] After claimant’s healing period ended and the employer was unable to provide her with suitable employment, claimant registered with the local office of employment security division. Claimant testified that these efforts have been unsuccessful. Thereafter, respondents referred claimant to Crawford and Company for an employability evaluation. Without a local market survey, a consultation with claimant’s treating physician or an on sight job analysis, Crawford and Company recommended the following possibilities for employment in claimant’s area: (1) Distribution — Accounting Clerk (utilities); (2) night auditor (hotel and restaurant); (3) service clerk (any industry); and lay-out technician (optical). After receiving this evaluation, claimant applied without success at a grocery store, a daycare center, two utility companies, an eye doctor, and a motel. The physical restrictions imposed by Dr. Barrett-Tuck were impediments to obtaining employment. Further, claimant and her husband presented credible testimony that she would be unable to return to work at a full service station like the one they owned prior to her compensable injury. [11] Based on the above evidence, we find that claimant has failed to prove by a preponderance of the evidence that she is permanently and totally disabled. Although Dr. Dan Thompson reported that claimant was “essentially unemployable,” Dr. Barrett-Tuck and Mahon opined that claimant was capable of returning to gainful employment. Further, claimant testified that if suitable clerical work could be located, she could probably do it. [12] Respondents contended that claimant is not entitled to benefits pursuant to Ark. Code Ann. § 11-9-522 (b) because its job offer of carrying “repairs” was a bona fide and reasonably obtainable offer to be employed at wages equal to or greater than her average weekly wage at the time of the accident. However, based on our discussion above, we find that the job offered was not within claimant’s physical restrictions. [13] Finally, after a careful consideration of the evidence of claimant’s loss in earning capacity, we find that she has proven by a preponderance of the evidence that she is entitled to benefits for a wage loss disability of 15% to the body as a whole. [14] For the foregoing reasons, we find that claimant is not permanently and totally disabled. Additionally, we modify the opinion of the Administrative Law Judge to find that claimant has proven by a preponderance of the evidence that she is entitled to benefits for a wage loss disability of 15% to the body as a whole. Respondents are directed to comply with the award set forth herein. All accrued benefits shall be paid in a lump sum without discount and with interest thereon from the date of the opinion of the Administrative Law Judge. For prevailing on this appeal before the Commission, claimant’s attorney is hereby awarded an additional attorney’s fee in the amount of $250.00. [15] IT IS SO ORDERED.
JAMES W. DANIEL, Chairman PAT WEST HUMPHREY, Commissioner
[16] Commissioner Tatum dissents.[17] DISSENTING OPINION
[18] I respectfully dissent from the majority’s opinion finding that claimant is entitled to a 15% permanent partial impairment related to wage loss.
[21] Drs. Barrett-Tuck and Mahon released claimant to return to light duty with restrictions. These restrictions included no repetitive bending or stooping and weight restrictions on lifting. Additionally, in a report dated April 20, 1993, Dr. Barrett-Tuck stated that claimant should avoid standing or walking for prolonged periods of time. [22] When claimant was released to return to light duty, respondent offered her a job. The light duty encompassed no heavy lifting. However, claimant refused the job. She maintained that it would require her to walk and stand throughout the day. In my opinion it is extremely important that claimant did not even attempt to participate in this light duty work. [23] The aforementioned indicates that claimant was given a bona fide job offer within her restrictions making equal wages as she was earning prior to her injury. I am of the opinion that claimant is not entitled to any wage loss disability pursuant to A.C.A. § 11-9-522. [24] Furthermore, a review of the evidence indicates that claimant has a significant lack of motivation to return to gainful employment. Although claimant maintains she sought employment, a review of the evidence does not indicate that she even sought any employment until after a report was generated by Crawford Company on July 27, 1993. For over three months, claimant had not attempted to return to work. Additionally, keep in mind that claimant merely sought employment from July 27, 1993, until the date of the hearing, August 4, 1993. Claimant’s activities appear to be “trial induced.” [25] In my opinion, the aforementioned indicates that claimant has been provided a bona fide job offer within her restrictions. Additionally, claimant is highly unmotivated to return to work. These two factors indicate that claimant is not entitled to any additional permanent disability benefits beyond the 7% permanent anatomical impairment rating accepted and paid by the respondent. Therefore, I respectfully dissent from the majority’s decision finding that claimant is entitled to 15% wage loss. [26] ALLYN C. TATUM, Commissioner(b) In considering the 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 affect his future earning capacity. However, so long as an employee, subsequent to his injury, has returned to work, has obtained other employment, or has a bona fide and reasonably offer to be employed at wages equal to or greater than his average weekly wage at the time of the accident, he shall not be entitled to permanent partial disability benefits in excess of the percentage of permanent physical impairment established by a preponderance of the medical testimony and evidence.