CLAIM NO. E305633
Before the Arkansas Workers’ Compensation Commission
OPINION FILED APRIL 23, 1996
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE WILLIAM F. MAGEE, Attorney at Law, Lewisville, Arkansas.
Respondents represented by the HONORABLE MICHAEL E. RYBURN, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed.
[1] OPINION AND ORDER
[2] The claimant appeals an opinion and order filed by the administrative law judge on July 31, 1995. In that opinion and order, the administrative law judge found that the claimant sustained a permanent partial disability of 30% to the body as a whole, with 15% representing permanent physical impairment and 15% representing additional impairment to the claimant’s earning capacity. After conducting a de novo review of the entire record, we find that the administrative law judge’s decision must be affirmed. In this regard, we find that the preponderance of the evidence establishes that the claimant failed to make a prima facie showing that he falls within the odd-lot category or that he is otherwise totally disabled.
[6] In his note of November 15, 1993, Dr. Adametz indicates the following:. . . It does not look like a very severe abnormality in his lumbar spine and I really did not expect him to require surgical intervention on it, but I do not know why it is bothering him more now at this point than it has been. I am going to try putting him in physical therapy for a couple of weeks. If he is not improved with that then I will get a new MRI scan to see if the disk has actually gotten worse.
I discussed his case with his rehab counselor, who was very anxious for him to get to his maximum medical benefit. There is some question of Mr. Kirkpatrick’s interest in returning to work. At this point I feel obligated to give him the benefit of the doubt and treat everything I can. If I do not find a significant disk abnormality on the MRI scan, though, I feel that he would be nearing maximum improvement.
[7] The claimant continued to have complaints, and Dr. Adametz indicated in a February 4, 1994, letter that the claimant’s complaints had changed to headaches. Dr. Adametz indicated, however, that he thought that the description was like that of a tension headache. In a March 7, 1994, note, Dr. Adametz provided the following:. . . On the myelogram that he had there was a mild cutoff of the L5 nerve root which would fit well with the symptoms that he is complaining of, but the MRI scan looks so good that I am not inclined to feel like he would benefit from surgical intervention at this point. I think he does probably still have a very small disc abnormality at that level, but I think it would be likely not to be helped very much by operating on it. His SI joint seems to be a little bit better, although, he still has some pain in that area. At this point I do not think I have much else to offer him. I obtained a lateral C-spine film today and it looks like his neck is healing quite well and so I am ready to release him from my care. I feel like he qualifies for a 15% permanent partial disability for the herniated disc in his neck and the problem in his low back. He has previously worked on an oil rig, and I do not feel like he is going to be able to go back to that, but he should be able to go back to a medium level type job. He, unfortunately, has very little education and so he is going to be somewhat of a problem with vocational rehabilitation, but still I think he deserves an opportunity for that. At this point I would say that he should not lift over about 30 lbs. or have to do constant bending or stooping. I think with that in mind he should be able to obtain some vocational training or rehabilitation to try to get him back to functional employment.
[8] In April 1994, the claimant underwent a bilateral cervical laminectomy from the end portion of C2 down to C5. Dr. Adametz’s May 6, 1994, progress report indicates the following:. . . I do not feel there is anything else that can be done anteriorly. I encouraged Mr. Kirkpatrick to try to get by with this. He still insists that he is in severe pain and extremely limited by this and wants anything done that could possibly be of benefit.
[9] In a June 2, 1994, progress letter, Dr. Adametz reiterated his feeling that he had done everything he could do for the claimant. He also indicated that he believed that the claimant could return to some kind of work in a “light duty to medium duty type position.” Dr. Adametz “again encouraged [the claimant] to contact the workmens’ compensation people to see if they will help him with some vocational rehabilitation as well as take some initiative on his own to start trying to find a position where he could do that.” Dr. Adametz also provided some restrictions to the claimant in his June 30, 1994, progress letter:. . . I think I have done everything surgically that I can. Mr. Kirkpatrick is somewhat of a difficult case. He actually has gone ahead and applied for Social Security Disability. I actually recommended to him that he strongly start considering some kind of vocational rehabilitation because I do not think he is going to be totally disabled from this although he is going to have some limitations and probably is not going to be able to go back to his work in the oil field. If workmen’s compensation will assist him with this, he should be able to do light to medium duty type work and could be gainfully employed since he is only 36 years old.
[10] Dr. Adametz clarified this in a letter of July 14, 1994, indicating that the 10% rating referred to the claimant’s neck and the 15% rating referred to the problem both in his neck and low back, for a total of 15% permanent partial disability. [11] The claimant contends that his healing period ended on July 14, 1994, and not June 20, 1994, as the administrative law judge found. The claimant also contends that he falls within the odd-lot category of disabled workers, and that he is permanently and totally disabled. [12] After conducting a de novo review of the entire record, we find that the claimant’s healing period ended on June 20, 1994. We also find that the preponderance of the evidence establishes that the claimant failed to make a prima facie showing that he falls in the odd-lot category of workers or that he is otherwise totally disabled. Therefore, we find that the administrative law judge’s decision must be affirmed. [13] As the injury sustained by this claimant was to a portion of his body not scheduled under the Act, his entitlement to permanent disability benefits is controlled by Ark. Code Ann. § 11-9-522 (Michie 1987). Permanent disability compensation is paid where the permanent effects of a work-related injury incapacitates the employee from earning the wages which the employee was receiving at the time of the injury. Thus, when determining the degree of permanent disability sustained by an injured worker with an unscheduled injury, the Commission must consider medical evidence demonstrating the degree to which the worker’s anatomical disabilities impair his earning capacity, as well as other factors such as the worker’s age, education, work experience, and other matters which may affect the worker’s future earning capacity. Id.; Tiller v. Sears, 27 Ark. App. 159, 767 S.W.2d 544 (1989). When it becomes evident that the worker’s underlying condition has become stable and that no further treatment will improve the condition, the disability is deemed to be permanent. If the employee is totally incapacitated from earning a livelihood at that time, he is entitled to compensation for permanent and total disability. Minor v. Poinsett LumberManufacturing Co., 235 Ark. 195, 357 S.W.2d 504 (1962). [14] Likewise, an employee who is injured to the extent that he can perform services that are so limited in quality, dependability, or quantity that a reasonably stable market for them does not exist may be classified as totally disabled under the odd-lot doctrine. Lewis v. Camelot Hotel, 35 Ark. App. 212, 816 S.W.2d 632 (1991). The odd-lot doctrine recognizes that the obvious severity of some injuries may combine with other factors to preclude the employee from obtaining employment in any reasonably stable market, although the employee is not altogether incapacitated from work. Id. In this regard, the factors which may combine with the obvious severity of the employee’s injury to place him in the odd-lot category are the employee’s mental capacity, education, training and age. Id. If the claimant makes a prima facie showing that he falls in the odd-lot category, the respondents have the burden of going forward with evidence showing that “some kind of suitable work is regularly and continuously available to the claimant.” Id. [15] In considering the factors which may affect an employee’s future earning capacity, we may consider the claimant’s motivation to return to work, since a lack of interest or a negative attitude impedes our assessment of the claimant’s loss of earning capacity. City of Fayetteville v. Guess, 10 Ark. App. 313, 663 S.W.2d 946 (1984); Oller v. Champion Parts Rebuilders, 5 Ark. App. 307, 635 S.W.2d 276 (1982). Likewise, although a claimant’s failure to participate in rehabilitation does not bar his claim, the failure may impede a full assessment of his wage earning loss by the Commission. Nicholas v. Hempstead CountyMemorial Hospital, 9 Ark. App. 261, 658 S.W.2d 408 (1983). [16] In the present claim, the claimant testified that he has not looked for a job since his compensable injury. He also indicated that although he talked about getting his GED, he decided against it when he discovered it could take him up to two years to obtain it. The claimant also testified that he had gained 50 pounds since his surgery, and that he has not pursued any vocational rehabilitation.I feel that Mr. Thomas Kirkpatrick qualifies for a 10% permanent partial impairment. I feel that he will have some persistent restrictions. I do not think he should lift over 50 lbs. As far as other movements, I think he could do most of them occasionally. Bending, stooping, standing and sitting should not be any particular problem as long as he does not have to do those things constantly. This would amount to not over four hours per day and not over fifteen minutes at a time. As far as pushing, I think that again there should be a limit on this of possibly 50-75 lbs. for any pushing or pulling. I think that climbing would be okay, again as long as he does not have to do it constantly.
Q: But apparently we’re here today on a subject that means you don’t get rehabilitation, do you understand that? If this Judge decides your permanent impairment, you don’t get any rehabilitation, do you understand that?
A: Yes, sir.
Q: So you’ve given up that idea of vocational rehabilitation?
A: Yes, sir.
[17] The claimant also testified that he did not think he could drive a truck because he did not feel as if he could “stand the getting up and down out of truck and the stopping and bending.” He noted that he could not even drive a car for long periods of time. In addition to these limitations, the claimant testified that he did not want to pursue school.Q: You’ve given up on the school idea. That’s out, right?
A: Yes, sir.
Q: And you haven’t looked for a job? You haven’t applied for a job anywhere, have you?
A: No, sir. I hurt all the time and there’s not too many things that I’m experienced in that I can do. I don’t know anything else except for heavy, manual work.
Q: And you haven’t tried anything, right?
A: No.
Q: You haven’t tried any form of work?
A: (Shakes head negative.)
Q: And this has been for over two years now, right?
A: Yes, sir.
Q: Two and a half years.
[18] With respect to the determination of the claimant’s loss of earning capacity, it is clear from the claimant’s testimony and the medical evidence that the restrictions indicated by the claimant exceed those indicated by the medical evidence. It appears from the evidence that the severity of the symptoms and limitations that the claimant describes are inconsistent with the medical evidence. In addition, the limitations and restrictions imposed by Dr. Adametz are not overly restrictive. The evidence indicates that the claimant has declined to pursue any vocational rehabilitation, including obtaining his GED. This is despite encouragement to do so. In this regard, the evidence tends to show that the claimant lacks motivation and initiative to return to work. [19] Therefore, we find that based on the claimant’s age, mental capacity, education, previous work experience, motivation to return to work, and his failure to participate in rehabilitation, he fails to make a prima facie showing that he falls within the odd-lot category of workers. In addition, we find the evidence establishes that the claimant failed to prove that he is otherwise totally disabled. [20] Therefore, based on our de novo review of the entire record, and for the reasons discussed herein, we find that the claimant has suffered a permanent partial disability of 30% to the body as a whole, with 15% representing permanent physical impairment and 15% representing the loss of earning capacity. Accordingly, we find that the administrative law judge’s findings must be affirmed. [21] IT IS SO ORDERED.JAMES W. DANIEL, Chairman ALICE L. HOLCOMB, Commissioner
[22] Commissioner Humphrey dissents.