CLAIM NO. E418798
ALICE MUSTEEN, EMPLOYEE, CLAIMANT v. TYSON FOODS, INC., SELF-INSURED EMPLOYER, RESPONDENT Before the Arkansas Workers’ Compensation Commission
OPINION FILED JUNE 11, 1996
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by JAY TOLLEY, Attorney at Law, Fayetteville, Arkansas.
Respondent represented by DAVID WALL, Attorney at Law, Fayetteville, Arkansas.
Decision of Administrative Law Judge: Affirmed.
[1] OPINION AND ORDER
[2] Claimant appeals from a decision of the Administrative Law Judge filed February 1, 1996 finding that the claimant has failed to prove by a preponderance of the evidence that she is permanently and totally disabled or is entitled to wage loss disability over and above the six percent permanent physical impairment rating.
[3] The claimant is a 50 year old long haul truck driver. The claimant has a high school education and has held several part-time jobs working for Olan Mills doing phone sales, part-time work for K-Mart, a short stint in a nursery working with plants, and as a factory worker wrapping candy. The claimant was injured while working for respondents when she tripped over a speed bump. The claimant injured her neck, arm, head and knee. Respondents accepted the claim as compensable and paid medical expenses, temporary total disability benefits and a six percent impairment rating to the body as a whole. Claimant now contends that she is entitled to wage loss disability over and above the six percent impairment rating. [4] The medical records indicate that the claimant was treated for her neck and arm problems by Dr. Tom Whiting, Dr. Vincent Runnels, Dr. David Davis, Dr. Luke Knox, and Dr. Ben Hall. On May 1, 1995, Dr. Davis assigned the claimant a six percent impairment rating to the body as a whole relying upon the Guides to the Evaluation of Permanent Impairment,
3rd Ed. Dr. Davis noted that the claimant had reached maximum medical healing since she refused additional testing and there was little else he could offer the claimant. Dr. Davis returned the claimant to work on May 8, 1995. The return to work slip does not place any physical limitations upon the claimant. [5] Claimant contends that as a result of her compensable injury, she is permanently and totally disabled. The evidence in the record, however, fails to support this contention. In his March 15, 1995 report, Dr. Davis noted that when the claimant fell she aggravated a preexisting underlying condition. The cervical spine films taken shortly after the claimant’s accident support his conclusion. Thus, the claimant’s accident merely resulted in a temporary aggravation of her underlying condition. As noted by Dr. Davis, the claimant reached maximal medical healing from her temporary aggravation on May 1, 1995. [6] After the claimant was returned to work by Dr. Davis, she did not return to her employer nor did she seek employment elsewhere. In fact, in June of 1995 the claimant advised her employer that she did not think she would ever be able to drive a truck again. When the employer inquired into whether the claimant wanted to seek other employment elsewhere within the company she indicated she was not interested. The claimant’s subjective belief that she would never be able to drive a truck again is not supported by the medical records. [7] The burden of proving entitlement to permanent and total disability benefits or permanent partial disability benefits over and above the physical impairment rating is on the claimant. A.C.A. §
11-9-519(E)(2) states, “[t]he burden of proof shall be on the employee to prove inability to earn any meaningful wage in the same or other employment.” The claimant has failed to meet this burden of proof. Other than the claimant’s own subjective belief that she cannot return to work, there is absolutely no evidence in the record to support the claimant’s contention. The medical records indicate that there are no physical limitations or restrictions placed upon the claimant. The claimant’s physicians did not restrict her from driving a truck or from performing any other job. In fact, Dr. Hall specifically stated, “I am unable to say that you won’t be able to return to driving an eighteen-wheeler. . . .” [8] 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 multiplicity 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. FranklinElectric,
32 Ark. App. 168,
798 S.W.2d 130 (1990). The claimant’s lack of interest in pursuing employment with her employer and negative attitude in looking for work is an impediment to our full assessment of wage loss. [9] After our de novo review of all the testimony and documentary evidence, we find that the claimant has failed to prove by a preponderance of the evidence that she is permanently and totally disabled or that she is entitled to wage loss disability over and above the six percent impairment rating assigned. The claimant was released to return to work by her physicians without restrictions or limitations. The claimant’s relatively young age, her education, work experience and medical records all indicate that the claimant has not sustained a wage loss disability and has not reached the status of permanent and total disability. Therefore, we affirm the decision of the Administrative Law Judge. [10] IT IS SO ORDERED.
JAMES W. DANIEL, Chairman ALICE L. HOLCOMB, Commissioner
[11] Commissioner Humphrey dissents.