CLAIM NOS. E201225, E019783 E155657
Before the Arkansas Workers’ Compensation Commission
OPINION FILED AUGUST 8, 1994
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE DENVER L. THORNTON, Attorney at Law, El Dorado, Arkansas.
Respondents represented by the HONORABLE BRIAN H. RATCLIFF, Attorney at Law, El Dorado, 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 November 9, 1993. In that opinion and order, the administrative law judge found that the claimant failed to prove that he is permanently and totally disabled.
(1990); See also, Jerry Rice v. Georgia-Pacific Corp., Full Workers’ Compensation Commission, Nov. 6, 1992 (Claim No. D707050); Charles Mulanax v. Ferguson Farms, Full Workers’ Compensation Commission, Mar. 2, 1992 (Claim No. D408955);Elder Smith v. Ray Construction, Full Workers’ Compensation Commission, Dec. 11, 1991 (Claim No. D804690); FrancisPowell v. Tiffany Stand Furniture Inc., Full Workers’ Compensation Commission, Jul. 1, 1991 (Claim No. D710675). [6] 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. CamelotHotel, 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. [7] In the present claim, the claimant is 61 years old. He attended the 10th grade in school, but he can read and write very little. He can perform some simple addition and subtraction, and he can make change. He has no specialized training. He has not worked since the January 10, 1992, injury, nor has he attempted to find employment. During the fifteen years prior to that injury, he worked in the pulpwood industry cutting, loading, and hauling pulpwood. He also has experience operating a fork lift and a front end loader. [8] He testified that he experiences pain in his left foot whenever he walks for long distances, and he also testified that he experiences swelling, stiffness, and popping in his left knee. He testified that his left knee occasionally gives way. Likewise, he testified that he experiences stiffness and popping in his neck, and, he testified that his neck sometimes gets weak and that he has to prop it up. He testified that he can turn his head from left to right with little problem, although he experiences some pain when he looks up and down. According to his testimony, neither his knee nor his neck hurt all the time. [9] With regard to his activities, he testified that he does very little. He mows his yard on a riding mower, but he does not do much housework. He can drive short distances, but he experiences problems if he drives long distances. He walks approximately 1/4 mile every day. He feels that he is unable to work at any of his previous employments due to the problems he is experiencing. [10] Dr. Sanders and Dr. Lipke have opined that the claimant is unable to work at his former employment due to the problems he is experiencing. Also, after reviewing the claimant’s medical records and deposition testimony, Dr. Dean C. Andrew, a vocational expert, opined that the claimant is unable to successfully work and maintain a job in his previous field of employment due to the problems with his foot, knee, and neck. Dr. Andrew concluded that the claimant would need a sedentary type job, and he concluded that he would be limited to some types of bench or assembly line type work. Dr. Andrew opined that the claimant would not be able to successfully maintain an eight hour day due to his arthritis and other physical impairments, and he opined that the claimant was not a likely candidate for vocational rehabilitation due to his age, lack of transferable skills, and physical impairments. We note that Dr. Andrew’s conclusion regarding the claimant’s lack of ability to successfully maintain sedentary bench or assembly line work appears to be based on his belief that the arthritis affected the claimant’s fingers. However, there is no medical evidence suggesting that the claimant’s fingers were affected by arthritis, and the claimant testified that he did not have any problems with his fingers. Instead, the evidence indicates that the arthritis only affects the claimant’s knees, ankles, and shoulders. Therefore, the weight that Dr. Andrew’s opinion is entitled to receive is diminished accordingly. [11] Furthermore, Dr. Andrew’s opinion as well as the opinions of Dr. Sanders and Dr. Lipke is based on the effect of the problems that claimant is experiencing with his lower extremity and neck on his ability to work. Likewise, the claimant admitted that his inability to work was due to the arthritis. However, a preponderance of the evidence establishes that these problems are caused by preexisting conditions which were not permanently aggravated by the compensable injuries. In this regard, Dr. Lipke has opined that the claimant’s lower extremity symptoms are caused by his osteoarthritis as well as superimposed exogenous obesity, and Dr. Sanders, his personal physician, noted that the arthritis “had been present for awhile. Furthermore, the claimant testified that he experiences the same problems with his right knee, which was not injured, as he does with his left knee. With regard to the claimant’s neck, Dr. Lipke has opined that the claimant did not sustain any permanent impairment as a result of the compensable injury. The only findings pertaining to the neck indicate that any problems are caused by the preexisting degenerative changes, and there is insufficient evidence to support a finding that this condition was permanently worsened by the compensable injury. [12] Therefore, we find that the preponderance of the evidence establishes that the physical problems which are preventing the claimant from working preexisted the compensable injuries, and we find that the preponderance of the evidence fails to establish that these problems were permanently worsened by the injuries. Consequently, we find that the preponderance of the evidence fails to establish that the conditions preventing the claimant from working are causally related to his employment. [13] Accordingly, based on our de novo review of the entire record, and for the reasons discussed herein, we find that the claimant failed to prove by a preponderance of the evidence that he is entitled to permanent and total disability compensation. Therefore, we find that the administrative law judge’s decision must be affirmed. [14] IT IS SO ORDERED.
JAMES W. DANIEL, Chairman ALLYN C. TATUM, Commissioner
[15] Commissioner Humphrey dissents.