JONES v. MATSON CONSTRUCTION, INC., 1998 AWCC 176

CLAIM NO. E319447

JOHN O. JONES, EMPLOYEE, CLAIMANT v. MATSON CONSTRUCTION, INC., EMPLOYER, RESPONDENT and LIBERTY MUTUAL INSURANCE GROUP, INSURANCE CARRIER, RESPONDENT

Before the Arkansas Workers’ Compensation Commission
OPINION FILED MAY 14, 1998

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

Claimant represented by the HONORABLE JUDSON C. KIDD, Attorney at Law, Little Rock, Arkansas.

Respondents represented by the HONORABLE DAVID S. WILSON, Attorney at Law, West Memphis, Arkansas.

Decision of Administrative Law Judge: Affirmed as modified.

[1] OPINION AND ORDER
[2] The respondents appeal an opinion and order filed by the administrative law judge on September 3, 1997. In that opinion and order, the administrative law judge found that the claimant has sustained a 50% disability to his wage earning capacity in excess of the 15% permanent anatomical impairment established by the medical evidence. After conducting a de novo review of the entire record, we find that the claimant has sustained a 30% disability to his wage earning capacity in excess of the 15% permanent anatomical impairment established by the medical evidence. Therefore, we find that the administrative law judge’s decision must be affirmed as modified. [3] In determining wage loss disability, the Commission may take into consideration the workers’ age, education, work experience, medical evidence and any other matters which may reasonably be expected to affect the workers’ 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. Franklin Electric, 32 Ark. App. 168, 798 S.W.2d 130 (1990). A claimant’s lack of interest in pursuing employment and negative attitude in looking for work are impediments to our full assessment of wage loss. [4] In the present case, claimant sustained an admittedly compensable injury to his back and neck on October 3, 1993. As a result of claimant’s injury, claimant underwent numerous diagnostic testing of his head, neck and lumbar spine. The MRI of claimant’s cervical spine and CT scan of claimant’s brain were both normal. However, the MRI of claimant’s lumbar spine revealed a very large free fragment of disc material at L5-S1. In January of 1994 claimant underwent a lumbar nerve root decompression of L5-S1 which has been declared successful. After recovering from surgery, claimant continued to complain of headaches, neck and shoulder pain for which his treating physician stated “I have no explanation for these.” Dr. Jouett referred claimant to Dr. Richard Peek on October 12, 1994, due to claimant’s complaints of low back pain, neck pain and right arm pain for which he had no explanation. Dr. Peek performed an extensive examination of the claimant, noted that claimant’s decompression surgery was expertly performed and stated that further surgery would not be of any benefit to claimant. Dr. Peek noted that claimant had some non-physiologic findings and lack of correspondence between subjective and objective complaints. After examining claimant, and determining that claimant was not a surgical candidate, Dr. Peek recommended that claimant be evaluated by a rehabilitation specialist and referred him to Dr. Patricia Knott. [5] Following his surgery, claimant also underwent a Functional Capacity Evaluation, which revealed that he is capable of lifting twenty-two pounds (22 lbs.) with each hand, and carrying thirty pounds (30 lbs.). However, he testified that weakness in his arms is one of the reasons he feels unable to work. Specifically, he stated that because his arms are weak he has a tendency to drop things. Claimant testified that he cannot work as a cashier, because that job would be too stressful. Claimant stated that his daily headaches would prevent him from working as a telephone solicitor. [6] Dr. Knott assigned claimant a 15% permanent partial impairment rating and concluded that claimant was capable of returning to work in a light-duty capacity. When claimant’s complaints continued to persist, Dr. Knott referred claimant to Dr. Reginald Rutherford for a clinical assessment. Dr. Rutherford noted that claimant’s clinical picture was suggestive of pain disorder accompanied by conversion symptomology. At Dr. Rutherford’s request, claimant was referred to Dr. Judy White Johnson for a psychological evaluation. [7] Dr. Knott also felt that claimant suffered from degenerative disc disease and attempted to manage claimant conservatively. Dr. Knott summarized claimant’s condition on January 22, 1997 as follows:

I have followed by (sic) Mr. Jones for complaints of chronic pain. He reached maximum medical improvement 5/17/95. He had a Functional Capacity Evaluation which showed him capable of performing light-duty. He cannot return to his previous work which is construction and this is the only work he has ever done. I have advised a vocational counselor in the past.
Though patient’s Functional Capacity Evaluation has shown him capable of performing in a light duty category, I feel that he has a very poor prognosis for returning to work at all because of his continued escalating pain complaints. He has been away from work for quite a period of time and this decreases the prognosis for any successful return to work.

[8] On September 6, 1995, claimant received his evaluation from Dr. Reginald Rutherford. Dr. Rutherford concluded that claimant’s “contemporary clinical picture is most suggestive of somatiform pain disorder accompanied by conversion symptomatology.” Dr. Johnson performed her evaluation on October 5, 1995, and offered the following assessment:

His overall profile is elevated and consistent with a somatization, conversion, and personality disorder. His extreme responses and tendency to endorse problems without regard to content severely limits interpretation. He is overtly anxious, distressed, uncomfortable, and generally maladjusted. His extreme anxiety, limited cognitive skills, and fear-based attitudes lead to significant problems in understanding and following prescribed regimens. He is apt to hear and understand little that a physician describes to him. The biggest factor in his misunderstanding or confusion is his fear and anxieties. Explanations need to be simple and concrete. He will benefit from resolution of his cardiac questions. Mr. Jones would benefit from being able to return to work. He wants employment but is extremely fearful that he may drop dead of a heart attack at any moment. This fear may be leading to as much paralysis in his daily life as is the experienced pain in his back and neck.

[9] Dr. Johnson further noted:

He wants employment but is extremely fearful that he may drop dead of a heart attack at any moment. This fear may be leading to as much paralysis in his daily life as is the experienced pain in his back and neck.

[10] During her report, Dr. Johnson also noted that “cognitive and achievement skills are consistent at a middle-school level, age equivalent about 12 years.” It appears that as late as May, 1997, claimant remained under Dr. Knott’s care and continued receiving prescription medications such as Ultram, Paxil, and Ambien. [11] Claimant indicated during the hearing that he takes prescription pain medicine four times a day, uses a TENS unit, wears a back brace, and walks with a cane “because [his] leg gives out.” Claimant went on to explain that if he does not use his pain medicine “It’s unbearable. The pain is too bad. I can’t get up. You know, it hurts too bad to even move or lay down or anything.” In addition, claimant acknowledged that he is limited in how much he can bend (in most any direction) and can neither sit nor stand for very long. With regard to his FCE, claimant recalled that he was taking pain medication at the time of the evaluation, and that he gave his full exertion. However, as is so often the case, this one-time effort left claimant “laid up for about three days . . .” Claimant also appears to have received at least some vocational counseling from Mr. Paul Hugens, and acknowledged that Mr. Hugens had informed him of an opening with the U.S. Department of Agriculture and had sent him an application. Unfortunately, claimant “couldn’t understand it. I didn’t know what some of the words, or what the job was. I didn’t know how.” Finally, claimant stated that he slept only two or three hours a night, and answered in the affirmative when asked if he continued to suffer from numbness, weakness, and spasms in his back as well as diminished reflexes. [12] At the hearing held on August 7, 1997, claimant was 37 years of age. Claimant is a high school graduate who has experience working in construction, as a concrete finisher, a press operator, and as a truck driver. Claimant’s past work experience as a truck driver did not involve any heavy lifting. At the hearing, claimant contended that he was unable to return to driving a truck or other heavy equipment due to his dependency on pain medication. However, this argument is inconsistent with claimant’s everyday activities of driving his wife to and from work and driving to the grocery store. In addition, the evaluation from Dr. Johnson indicates that claimant’s anxiety regarding his heart condition may be a paralyzing factor in claimant’s daily life. To whatever extent that this concern on the part of the claimant may affect his decision to return to work, or not to return to work, we note that the claimant’s heart arrhythmia is not causally related to his compensable injury. Likewise, we are persuaded by the determination by functional capacity testing that the claimant has the capacity to return to light-duty work, which he has not attempted to date. Accordingly, after reviewing all of the evidence impartially, without giving the benefit of the doubt to either party, and when weighing claimant’s physical condition, age, education, work experience, and all other relevant factors which are reasonably expected to affect claimant’s wage earning capacity, we find that claimant has proven by a preponderance of the evidence that he sustained a 30% decrease in his wage earning ability in excess of the 15% anatomical impairment from his work-related injury established by the medical evidence. In reaching our decision, we have excluded from consideration claimant’s nonwork-related cardiac problems and anxiety associated therewith. [13] Therefore, after conducting a de novo review of the entire record, and for the reasons discussed herein, we find that the decision of the administrative law judge must be, and hereby is, affirmed as modified. [14] All accrued benefits shall be paid in a lump sum without discount and with interest thereon at the lawful rate from the date of the administrative law judge’s decision in accordance with Ark. Code Ann. § 11-9-809 (Repl. 1996). For prevailing in part on this appeal before the Full Commission, claimant’s attorney is hereby awarded an additional attorney’s fee in the amount of $250.00 in accordance with Ark. Code Ann. § 11-9-715 (Repl. 1996). [15] IT IS SO ORDERED.

ELDON F. COFFMAN, Chairman MIKE WILSON, Commissioner

[16] Commissioner Humphrey concurs in part and dissents in part. [17] CONCURRING AND DISSENTING OPINION
[18] While I agree with the majority to the extent it finds that claimant is entitled to at least some wage loss, I must respectfully dissent from the finding that said wage loss should be limited to a 30% rating. In my opinion, the Administrative Law Judge’s award of a 50% rating was appropriate under the facts of this case. [19] In particular, I am swayed by Dr. Patricia Knott’s letter of January 22, 1997, in which she stated that “he cannot return to his previous work which is construction and this is the only work he has ever done.” Also, Dr. Judy White Johnson performed a psychological evaluation on October 5, 1995, from which she concluded that claimant’s “cognitive and achievement skills are consistent at a middle-school level, age equivalent about 12 years.” While claimant is relatively young and does have a high school diploma, his non-sedentary work experience is extremely limited and Dr. Knott has essentially precluded a return to the sort of labor with which claimant is familiar. Given his restricted cognitive skills, claimant is also in a poor position to obtain more sedentary employment. In my opinion, claimant has suffered a loss of wage earning capacity of at least 50%. [20] As set out above, I respectfully dissent from the majority opinion. [21] PAT WEST HUMPHREY, Commissioner