CLAIM NO. E418166
ANNIE NEWMAN, EMPLOYEE, CLAIMANT v. CRESTPARK RETIREMENT INN, EMPLOYER, RESPONDENT NO. 1 and ALEXIS INSURANCE COMPANY, INSURANCE CARRIER, RESPONDENT NO. 1 and SECOND INJURY FUND, RESPONDENT NO. 2 Before the Arkansas Workers’ Compensation Commission
OPINION FILED SEPTEMBER 14, 1998
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE MIKE J. ETOCH, Jr., Attorney at Law, Helena, Arkansas.
Respondent Nos. 1 represented by the HONORABLE THOMAS W. MICKEL, Attorney at Law, Little Rock, Arkansas.
Respondent No. 2 represented by the HONORABLE TERRY PENCE, Attorney at Law, Little Rock, Arkansas.
Decision of the Administrative Law Judge: Affirmed as modified.
[1]
OPINION AND ORDER [2] Respondents No. 1 appeal and the claimant cross-appeals an opinion and order filed by the administrative law judge on February 23, 1998. In that opinion and order, the administrative law judge found that the claimant has sustained a 40% impairment to her wage earning capacity in excess of the 15% permanent anatomical impairment established by the medical evidence. The administrative law judge also found that the Second Injury Fund did not have any liability for any of the benefits awarded. After conducting a de novo review of the entire record, we find that the decision of the administrative law judge must be affirmed as modified. [3] The claimant sustained an admittedly compensable injury on November 15, 1994. Eventually, the claimant was diagnosed with a bulging and possibly herniated disc at L5-S1, and later underwent a laminectomy in an attempt to alleviate her problems. Later, the claimant’s treating physician, Dr. John L. Wilson, a Little Rock orthopedist, opined that the claimant had sustained an anatomical impairment of 15% to the body as a whole as a result of her injury and resulting surgery. The respondents accepted that impairment rating and, at the time of the hearing, had already paid the claimant all benefits she was entitled to, based upon that impairment rating. [4] The issue for determination at the present time is the extent of the claimant’s permanent disability. In this regard, the claimant contends that her injury has rendered her permanently and totally disabled. Respondents No. 1, Crestpark Retirement Inn (Crestpark), contends that the claimant did not suffer any disability in excess of her anatomical impairment. In support of that contention, the respondents assert that they offered the claimant a return to work within her capacity and that the claimant has also allegedly refused to cooperate with offered rehabilitation. In the alternative, Crestpark contends that if the claimant is entitled to any disability benefits in excess of her anatomical impairment, such disability would be the result of the combined effects of the claimant’s present condition and her preexisting diabetes, and is, accordingly, the responsibility of Respondent No. 2, Second Injury Fund (Fund). The Fund argues that they would have no liability in the present case since the claimant’s diabetes was a latent condition and that pursuant to Ark. Code Ann. §
11-9-525(a)(3), the claimant’s latent condition could not be considered a preexisting disability or impairment to establish Second Injury Fund liability. [5] According to the claimant’s testimony, she had been employed by the respondents for approximately nine years at the time of her compensable injury. After her accident, the claimant apparently attempted to return to work on three different occasions. At least one of these occasions occurred after the claimant had undergone surgery by Dr. Wilson. All of these attempts to return to work were under some type of light duty. This light duty consisted of light housekeeping such as dusting rooms. However, the claimant testified that she was not able to perform tasks required in order to carry out her job duties. The claimant testified that the dusting and room cleaning required her to wipe off walls from floor to ceiling, move furniture, and to clean and dust in hard to reach places. The claimant testified that she was not able to bend without undergoing severe pain and that she could not lift or move furniture as required by her job. She stated that, in spite of her best attempts, she was not able to perform these functions for more than a short period of time. Significantly, the claimant’s testimony was somewhat corroborated by the testimony of Ms. Angie Calhoun, her immediate supervisor, and Ms. Cynthia Jaroe, the respondents’ administrator. Ms. Calhoun testified that the claimant’s light-duty job did require her to do occasional bending, stooping, and related motions. She stated that she had observed the claimant, without the claimant’s knowledge, and the claimant did not appear to be able to perform those tasks. Ms. Calhoun also stated that the job provided to the claimant was not intended to be a permanent duty but was only intended to be of limited duration until the claimant was able to return to her regular job functions. Ms. Jaroe indicated that she had never seen the claimant performing her light-duty jobs, but that the dusting and cleaning job assigned to the claimant was considered light duty and was not intended to be a permanent job placement. There does not appear to be any dispute that the claimant could not return to her former duties under the restrictions placed upon her by her treating physician. However, the testimony also establishes that the light-duty jobs offered to the claimant were at her regular rate of pay. [6] In its brief, Crestpark argues that the claimant is disqualified from receiving wage loss disability benefits pursuant to Ark. Code Ann. §
11-9-522(b)(2), which provides, in essence, a claimant is not eligible to receive wage loss disability benefits when the employer has made a bona fide and reasonably obtainable offer of re-employment at equal or greater wages than those at the time of the injury. However, the evidence introduced at the hearing convinces us that the above statute is not applicable to the present situation for two reasons. First, two of the respondents’ witnesses testified that the light-duty jobs offered to the claimant were not intended to be a permanent return to work. Both witnesses, one of whom was the claimant’s immediate supervisor, the other the administrator of the nursing home for which the claimant was employed, stated that the light-duty dusting and cleaning assignments were temporary in nature, intended only to facilitate a return to regular duties. For that reason, we do not believe that this job could be considered a bona fide and reasonably obtainable offer of re-employment within the meaning of Ark. Code Ann. §
11-9-522(b)(2). Second, in light of Ms. Calhoun’s testimony that the claimant appeared to be unable to perform a portion of her required tasks, we find credible the claimant’s testimony that she could also not fulfill her light duty responsibilities when she attempted to return to work for the respondents. [7] The respondents also argue that Ark. Code Ann. §
11-9-505(b)(3), acts as a bar to the claimant’s request for wage loss disability benefits. That section provides that the claimant shall not be required to enter a program of vocational rehabilitation but that an employee who waives rehabilitation or refuses to participate in or cooperate for reasonable cause for either an offered program of rehabilitation or job placement assistance shall not be entitled to any disability benefits that are in addition to those for anatomical impairment. [8] However, the record does not establish that the claimant ever waived any claim to vocational rehabilitation or clearly failed to cooperate with a rehabilitation assessment or job placement assistance. There was some testimony during the hearing that, in a deposition in July of 1996, the claimant may have stated that she was not interested in any further attempts of vocational retraining. However, at the hearing, the claimant testified that she would gladly cooperate in any program of re-education or retraining that was reasonable and would provide her with additional job skills. [9] The apparent basis of Crestpark’s argument in this regard is the fact that the claimant did not ever personally meet with Ms. Gay Signoff, a vocational counselor retained by Crestpark to perform an evaluation of the claimant. Ms. Signoff, who testified at the hearing, stated that her failure to meet with the claimant impaired her ability to prepare a meaningful evaluation of the claimant’s vocational status. However, our review of the record indicates that the claimant underwent at least two, and perhaps three, functional capacity assessments in an attempt to establish the extent of her impairment and provided a deposition to the respondents in July of 1996. Furthermore, the claimant did attempt to return to work with her employer on at least three occasions but was not able to carry out the tasks assigned to her. [10] In addition, we find that the respondents have failed to show by a preponderance of the evidence that the claimant has waived rehabilitation or refused to cooperate with job placement assistance. In order to rely upon the defense of Ark. Code Ann. §
11-9-505(b)(3), a respondent must show that a claimant has refused to participate in a program of vocational rehabilitation or job placement assistance or, through some other affirmative action, indicated an unwillingness to cooperate in those endeavors. Compare, Second Injury Fund v. Stephens, 62 Ark. App. ___, ___ S.W.2d ___ (June 24, 1998); Second Injury Fund v.Furman,
60 Ark. App. 237, ___ S.W.2d ___ (1998). [11] The next question that must be resolved is whether the claimant has established that her physical impairment is such that she is able to meet the requirements to be eligible to receive wage loss disability benefits. Ark. Code Ann. §
11-9-522(b)(1), provides that, in considering claims for permanent partial disability benefits in excess of permanent physical impairment, the Commission may take into account such factors as the employee’s age, education, work experience, and other matters reasonably expected to affect his or her future earning capacity. In this regard, we note the claimant was 40 years old at the hearing, was not a high school graduate, and had no specialized training or education. As indicated above, she had been employed at the respondent’s nursing home facility for nine years prior to her injury, and prior to that, had apparently engaged in other manual labor type jobs. [12] Unfortunately, neither the functional capacity assessment nor any reports from Dr. Wilson clearly specify what restrictions the claimant is able to work under. However, the functional capacity report does indicate that the claimant had less than average ability to push, balance her activities, or grasp objects to her left. She has a low performance in tasks involving repeated forward bending, pulling, overhead reaching, standing, walking, stair climbing, ladder climbing, balance activities, right grasp strength, and upper extremity coordination. There is no doubt that the claimant has sustained a significant amount of anatomical impairment as assessed by her treating physician. Specifically, Dr. Wilson determined that the claimant suffered an anatomical impairment of 15% to the body as a whole as a result of her back injury. That amount of disability was not disputed by the respondents. [13] The claimant’s physical impairment somewhat limits the quantity and type of jobs that she can perform. This is established by the fact that the claimant’s past employment history consists of manual labor jobs, and by the testimony offered by the supervisory personnel of the respondents indicating that the claimant was unable to perform the lightest jobs that the respondents could provide for her. We therefore find that the claimant has sustained some wage loss disability. However, our review of the claimant’s testimony indicates that the claimant has shown a rather poor motivation to return to work. Other than her brief attempts at returning to light duty with her employer, she has made no attempts whatsoever to find other employment or to seek additional training. We also note that the claimant is presently drawing Social Security disability benefits, and has flatly stated that she does not believe that there is any type of work that she could perform. It also appears that the claimant did not put forth a good effort on her functional capacity assessments and has simply displayed no interest in trying to return herself to the work force at a very young age. [14] We are of the opinion that the claimant has failed to establish that she is permanently and totally disabled. The evidence in the record simply does not support the claimant’s contention that her injuries are severe enough to render her permanently and totally disabled. Were it not for the claimant’s lack of motivation, we believe that she would have been able to find some type of gainful employment, although the claimant has incurred some wage loss disability as a result of her back injury and surgery. There is no doubt that the claimant did suffer an injury that has caused a significant amount of anatomical impairment. It is also clear that this anatomical impairment prevents the claimant from returning to her former employment and earning the wages that she was receiving for that work. After considering the claimant’s age, education, her past job experience, and all other relevant factors, we find that the claimant has sustained an impairment to her earning capacity in an amount equal to 15% to the body as a whole in excess of the 15% anatomical impairment established by the medical evidence. [15] It must now be determined whether there is any Second Injury Fund liability in this claim. The position taken by Crestpark is that the Fund is liable because of Dr. Wilson’s statement that the claimant’s diabetes condition is contributing to her permanent disability. This conclusion is first set out in a report from Dr. Wilson dated March 4, 1996. In that report, Dr. Wilson stated that he was of the opinion that the claimant’s poor result from her surgery was connected to her diabetes. His opinion was reiterated in a subsequent letter dated March 26, 1996. In a third letter, dated January 10, 1997, Dr. Wilson stated that the claimant did have diabetes prior to her injury and that she should have been feeling the effects of the condition prior to the injury. Dr. Wilson likewise stated that the combined effects of the diabetes produced more disability than there would have been with the injury alone. [16] The Fund has defended this case based upon Ark. Code Ann. §
11-9-525(a)(3). That section provides as follows:
It is intended that latent conditions which are not known to the employee or employer are not considered previous disabilities or impairments which would give rise to a claim against the Fund.
[17] In the present case, the claimant denied that she had any knowledge of her diabetic condition until tests were being run upon her in preparation for her back surgery. She also denied that the diabetic condition had caused her to suffer any disability or impairment prior to the injury. Likewise, all of the problems related by the claimant were the result of her back injury and not from her diabetic condition. According to the claimant, her diabetes was being controlled with Insulin injections. [18] The effect of latent conditions on Second Injury Fund liability was discussed by the Arkansas Court of Appeals inPurolator Courier v. Chancey,
40 Ark. App. 1,
841 S.W.2d 159 (1992). In that case, the claimant had suffered a job related injury to his lower back. While the claimant was being treated for this back injury, it was discovered that the claimant was suffering from post-poliomyelitis. This was apparently a childhood condition that preexisted the claimant’s compensable injury. The Court of Appeals affirmed a Commission decision finding that the claimant’s post-poliomyelitis was a latent condition that could not give rise to Second Injury Fund liability. In reaching that decision, the Court held that an injury is latent until its substantial character becomes known or until the employee knows or should reasonably expect to be aware of the full extent and nature of the injury. The Court also noted that even though there were visible signs of the claimant’s underlying disorder prior to the injury, such did not preclude a finding that the condition was latent at the time of the injury. The Court noted that the claimant had participated in high school sports, served in the Air Force, and engaged in heavy manual labor. It was concluded that this evidence supported the findings that, at the time of the injury, the full extent and nature of the claimant’s childhood illness and its effects were not known to him or his employer. [19] We find that the reasoning of the Purolator Courier case is controlling here. The claimant testified that she did not know that she had diabetes until tests were being run on her for her back surgery. The respondent employer bases its entire argument on the Second Injury Fund’s liability on Dr. Wilson’s statements to the effect that the diabetes preexisted the claimant’s injury and that its effects should have been manifesting themselves. However, the record does not contain any evidence that, prior to her compensable injury, the claimant’s diabetes, in any way, limited her activities or caused her to sustain any impairment or disability. In the absence of such evidence, and in consideration of the holding in Purolator Courier v. Chancey, supra, we find that the claimant’s diabetes condition was a latent condition, and pursuant to Ark. Code Ann. §
11-9-525(a)(3), we find that the Second Injury Fund has no liability in this case. [20] For the reasons set out above, we find that the claimant failed to establish that she is permanently and totally disabled. However, we do find that the claimant has sustained wage loss disability in an amount equal to 15% rated to the body as a whole, in excess of the 15% anatomical impairment established by the medical evidence. We further find that the Second Injury Fund has no liability for this award. [21] 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). [22] 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(b) (Repl. 1996). [23] IT IS SO ORDERED.
ELDON F. COFFMAN, Chairman PAT WEST HUMPHREY, Commissioner MIKE WILSON, Commissioner