CLAIM NO. E118067
DINO PALAZOLLO, EMPLOYEE, CLAIMANT v. NELMS CHEVROLET, EMPLOYER, RESPONDENT and SISCO, INSURANCE CARRIER, RESPONDENT
Before the Arkansas Workers’ Compensation Commission
OPINION FILED OCTOBER 31, 1994
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE JAY N. TOLLEY, Attorney at Law, Fayetteville, Arkansas.
Respondents represented by the HONORABLE WALTER A. MURRAY, Attorney at Law, Little Rock, Arkansas.
[1] OPINION AND ORDER
[2] This matter comes before us on remand from the Arkansas Court of Appeals. In an opinion delivered June 15, 1994, the Court found that we erroneously failed to consider the claimant’s entitlement to temporary partial disability compensation. Therefore, the Court remanded the case with instructions for us to determine whether the claimant is entitled to an award of temporary partial disability benefits.
[3] After reviewing the entire record, we find that the claimant failed to prove by a preponderance of the evidence that he is entitled to temporary partial disability compensation. Temporary disability is determined by the extent to which a compensable injury has affected the claimant’s ability to earn a livelihood. An injured employee is entitled to temporary total disability compensation during the period of time that he is within his healing period and totally incapacitated to earn wages.Arkansas State Highway and Transportation Department v.Breshears,
272 Ark. 244,
613 S.W.2d 392 (1981). An injured employee is entitled to temporary partial disability compensation during the period that he is within his healing period and suffers only a decrease in his capacity to earn the wages that he was receiving at the time of the injury. Id. In the present claim, we find that the claimant failed to prove that he suffered any decrease in his capacity to earn the wages he was receiving at the time of the injury.
[4] The claimant sustained a work-related injury when he slipped and fell on September 23, 1991, and he subsequently complained of severe neck and back pain as well as severe headaches and a ringing sensation in his ears. He had worked for the respondent employer for approximately one month doing fender and body work. He testified that this involved removing and repairing panels, sanding, and spray painting, and he testified that the job involves substantial pulling, jerking, twisting, lifting up to 150 pounds, reaching, and working in awkward positions. Although he has received vocational training in automobile mechanics and cosmetology, his only work experience is in the automotive mechanical and body repair field, although he has worked at jobs in this field which involved much less physical effort than that he described was entailed with the respondent employer. He has been part owner of automotive repair and body shops.
[5] The claimant has persistently described severe physical problems and limitations, which he attributes to the injury. However, as we discussed in our June 30, 1993, opinion and order, from the time of the initial occurrence of this injury, clinical and diagnostic testing revealed only minimal findings, and these findings were not consistent with the nature or the severity of the symptoms described by the claimant. Moreover, even those positive findings that were revealed had largely subsided by the time of Dr. McKenzie’s examination on October 21, 1991. Furthermore, even though a MRI revealed some bulging discs in the claimant’s cervical spine, no herniation or nerve involvement was revealed.
[6] Furthermore, we find that the weight to be given to the claimant’s testimony and statements is diminished by evidence suggesting that he created or exaggerated his complaints. Specifically, there is evidence which shows that the claimant was able to engage in activities which were drastically inconsistent with the physical limitations he describes. In this regard, Dr. McKenzie’s November 21, 1991, report indicates that the claimant advised him that he was unable to sustain any type of continuous motions for more than 10 to 15 minutes without experiencing severe spasms in the parascapular region. However, the record contains a surveillance videotape taken on November 11, 1991, showing the claimant washing three cars and engaging in movements which are inconsistent with the physical limitations which he related to Dr. McKenzie. The tape shows the claimant frequently bending over to turn on the water, to pick up rags, and a bottle of detergent, and the tape shows the claimant frequently squatting, rotating his neck, and flexing from waist to ground level and standing erect from this position. The tape also shows him frequently extending and reaching as he wiped the cars. There are no visible demonstrations of the pain or guarding behavior which would be expected with the severe spasms and pain which the claimant described to Dr. McKenzie. In fact, the claimant testified that he did not experience any difficulty washing the cars.
[7] In addition, the claimant admitted that he worked without pay at his father’s church sweeping, moping, taking out the trash, moving things such as chairs, and doing whatever else needs to be done. The claimant also testified under oath at his deposition that he had washed windows at the church; however, he later testified that he was “only joking.” The record also contains surveillance videotapes showing the claimant engaged in activities such as washing cars, trying to start a riding lawn mower, pushing the riding lawn mower, carrying a large cardboard box, moving a large speaker and amplifier, and forcefully kicking a volleyball. In addition, these videotapes show the claimant ambulating, rotating his neck and back, squatting, flexing from waist to ground level, and extending his arms in continuous movements. Also, Barbara Steil, a private investigator, testified that she observed the claimant doing yard work at his step-father’s church and at his parents’ home, working under the dash of a vehicle, and fabricating a sign at the church.
[8] In short, the only evidence suggesting that the claimant suffered any decrease in his capacity to earn the wages he was earning at the time of his injury is found in his own statements and testimony. However, there is evidence showing that the claimant is capable of engaging in physical activities much greater than the physical limitations he describes. In fact, this evidence indicates that the claimant is able to engage in relatively heavy physical activities for prolonged periods of time without the outward manifestations of difficulty which would be expected given the nature and severity of the problems he describes. Consequently, we find that the claimant’s testimony is entitled to little weight, and we find that medical opinions based on the claimant’s description of his symptoms and limitations are entitled to little weight. Furthermore, we find that these inconsistencies and contradictions severely impede our ability to assess the claimant’s earning capacity. Therefore, we find that the claimant failed to prove by a preponderance of the evidence that he sustained any decrease in his earning capacity as a result of the compensable injury.
[9] Accordingly, based on our review of the entire record, we find that the claimant failed to prove by a preponderance of the evidence that he is entitled to any temporary partial disability compensation.
[10] IT IS SO ORDERED.
JAMES W. DANIEL, Chairman ALLYN C. TATUM, Commissioner PAT WEST HUMPHREY, Commissioner
