CLAIM NO. D908683
Before the Arkansas Workers’ Compensation Commission
ORDER FILED AUGUST 27, 1999
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE KENNETH A. OLSEN, Attorney at Law, Little Rock, Arkansas.
Respondent represented by the HONORABLE RANDY P. MURPHY, Attorney at Law, Little Rock, Arkansas.
Decision of the Administrative Law Judge: Affirmed as modified.
[1] OPINION AND ORDER[2] The respondent appeals a decision by the administrative law judge awarding the claimant permanent and total disability benefits. Based upon our de novo review of the record, we find that the claimant failed to prove that he is permanently and totally disabled. Instead, we find that the claimant sustained a 40% impairment to his wage-earning capacity in excess of the claimant’s 40% permanent anatomical impairment established by the medical record. Therefore, we find that the administrative law judge’s decision must be affirmed as modified. [3] The claimant sustained an admittedly compensable injury in 1989. As a result of this compensable injury, the claimant has undergone five surgeries to his back. In 1995, Dr. Jim Moore assessed the claimant with a 40% to the whole body permanent impairment rating. The respondent accepted this rating and paid all benefits due to the claimant. The claimant contends that he is permanently and totally disabled under the odd-lot doctrine. [4] Since the claimant’s injury occurred prior to July 1, 1993, this claim for wage loss benefits is subject to the provisions of the Arkansas Workers’ Compensation Law as it existed prior to the amendments of Act 796 of 1993. The claimant sustained an injury to that portion of his body which is not scheduled under the Act. Therefore, the claimant’s entitlement to permanent disability benefits is controlled by Ark. Code Ann. § 11-9-522. Permanent disability compensation is paid where the permanent effects of a work-related injury incapacitate the worker from earning the wages which he was receiving at the time of the injury. When making a determination of 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 reasonably be expected to affect the worker’s future earning capacity. Such other matters include motivation, post-injury income, credibility, and demeanor.Glass v. Edens, 233 Ark. 786, 346 S.W.2d 685(1961); City ofFayetteville v. Guess, 10 Ark. App. 313, 663 S.W.2d 946(1984);Curry v. Franklin Electric, 32 Ark. App. 168, 798 S.W.2d 130(1990). 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 Lumber Manufacturing Co., 235 Ark. 195, 357 S.W.2d 504(1962). [5] An employee who is injured to the extent that he can perform services that are so limited in quality, dependability, or quantity that a reasonable 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 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 worker is not altogether incapacitated from work.Id. 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 respondent has the burden of proving that “some kind of suitable work is regularly and continuously available to the claimant.” Id. [6] In considering the factors which may affect an employee’s future earning capacity, the Commission may consider the claimant’s motivation to return to work, since a lack of interest or negative attitude impedes the Commission’s 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. ChampionParts Rebuilders, 5 Ark. App. 307, 635 S.W.2d 276(1982). In addition, a worker’s failure to participate in rehabilitation does not bar his claim, but the failure may impede a full assessment of his wage-earning loss by the Commission. Nicholas v. HempsteadCounty Memorial Hospital, 9 Ark. App. 261, 658 S.W.2d 408(1983). [7] In our opinion, the claimant has failed to prove that he is permanently and totally disabled under the odd-lot doctrine. The claimant has shown a lack of motivation to return to work. The claimant consulted with his nephew regarding an employment opportunity with his nephew’s vinyl siding business. He also sought employment with his friend Harry Wortham, a dairy farmer. The claimant went to the unemployment office in Heber Springs but was unable to complete an application because of his inability to read and they would not allow him to take the application home for his wife to assist him in completing such. The claimant also completed job applications at the unemployment office in Searcy. The claimant failed to follow up on any of the job applications. The claimant admitted that it had been several years since he had spoken to his nephew regarding employment. He also conceded that he had not spoken with Mr. Worthan since 1993 about working for him. It is also of interest to note that the claimant is currently receiving $749.00 a month in social security disability benefits. [8] The claimant testified that he did not take advantage of any of the specific job leads that were provided by Ms. Gaye Signoff of Cascade Disability Management. Ms. Signoff provided the claimant with leads to several jobs including Calvin Mitchell, Incorporated, the Daily Citizen in Searcy, and Tyca Foods in Beebe. [9] The claimant is able to do some housework and is able to deer hunt and fish and is also able to run his dogs. The claimant is able to take part in these activities despite his testimony that he cannot work because he must constantly take pain medications that make him so drowsy that he must lay down. [10] We find that the claimant has failed to prove that he is permanently and totally disabled or that he falls within the odd-lot doctrine. The claimant has failed to follow up on multiple job opportunities found by Ms. Signoff that fell within the restrictions established by the claimant’s treating physician. The respondents have proven that suitable work is regularly and continuously available to the claimant. The claimant has demonstrated that he has absolutely no interest in returning to work and is content to draw social security disability benefits. [11] However, the record also indicates that the claimant has sustained a significant impairment as a result of his disc herniation. Dr. Ron Williams performed a diskectomy at L4-5. Subsequently, Drs. David Arnold and Richard McCarthy performed surgery in an attempt to accomplish anterior and posterior fusions at L4-5. The claimant testified that he has had multiple surgical procedures done because of his compensable injury. Following the last operation, the claimant developed a staph infection, and this necessitated hospitalization. On September 6, 1995, Dr. Jim Moore performed an IME, and assigned an impairment rating of 40% to the whole body. In the report generated from the IME, Dr. Moore noted that claimant’s symptoms were unlikely to improve with the passage of time. [12] The claimant is fifty-five-years old. He ceased his formal education at age fifteen or sixteen. The claimant’s first spouse, who is deceased, taught special education. He stated that she attempted to teach him to read several times. However, the claimant remains functionally illiterate. [13] The claimant underwent psychological testing on March 22, 1996. The examiner was Tammie Orlicek. The report generated from the examination stated that claimant showed good effort. According to the report, the claimant’s I.Q. is sixty-four, which experts deem mildly retarded. The claimant testified that he takes 3-6 narcotic pain pills each day. He stated that the medicine makes him drowsy, and limits his daily activities. The claimant stated that he is only able to sit for 1-1/2 hours and stand for 30-35 minutes. [14] The claimant’s spouse testified that claimant’s illiteracy prevents him from reading street addresses, and this interferes with his job search. However, she stated that she has picked up and completed applications for claimant. With respect to following up on leads from Ms. Signoff, claimant’s spouse stated that she has been unable to get time off from work to accompany her spouse. [15] Ms. Signoff testified she requested a Functional Capacity Examination for claimant. Ms. Signoff stated that she completed a transferable skills analysis. [16] On cross-examination, Ms. Signoff acknowledged that she had not seen the rehabilitation evaluation performed by the state. After reading the document, she stated that claimant’s I.Q. scores were below the norm, and indicative of mild retardation. Ms. Signoff opined that none of the employers would allow someone to work standing, sitting, or a combination thereof for up to four hours, then take a break for pain medication and a nap as the claimant feels he would require to return to work. She indicated that claimant’s return to the work force would require accommodations from an employer. Moreover, she agreed that claimant’s ability to perform employment services is limited in both scope and quantity. The claimant was earning $8.00 per hour in 1989 when his injury occurred. However, the jobs she located for him paid an average of $6.00 per hour. She stated that she was unable to verify claimant’s job search with the ESD offices in Searcy and Heber Springs. She explained that as a rule, ESD will not release this information. [17] Ms. Signoff offered only theoretical conclusions with respect to claimants’ ability to return to the work force. However, claimant left school at age 15 or 16, has only performed manual labor, and is mentally retarded. His first wife attempted to teach him to read on several occasions; however, her efforts were unsuccessful. Moreover, the standardized psychological testing administered by Mr. Orlicek showed that on the Kaufman Brief Intelligence Test, he scored within the mildly retarded range and according to the Revised Beta Examination, he had significantly impaired visual-motor development. A Wide Range Achievement Test, designed to measure academic achievement, was also administered. Claimant performed very poorly in reading, spelling, and math. Ms. Orlicek enumerated claimant’s vocational problems, and they are many. However, the report also reflects that claimant has held down jobs, raised a family, and is capable of performing household tasks. [18] A FCE was also performed. That test’s recommendation/assessment section provided, in part:
[19] After considering the claimant’s age, education, work experience, the nature and extent of his work-related injury and anatomical impairment, and all other relevant factors, we find that the claimant sustained a 40% impairment to his wage-earning capacity in excess of the 40% anatomical impairment accepted and paid by the respondents. Therefore, we find that the administrative law judge’s decision must be affirmed as modified. [20] 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). For prevailing 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 (Repl. 1996). [21] IT IS SO ORDERED. [22] _______________________________Physical capacities: he currently has a tolerance of weight carry of 20 pounds, he was functionally limited in the stand up lift and self limited in overhead lift, estimated tolerance of knee to waist level lifting with static squat lift of 21-35 pounds, tolerance with static push was 60 pounds, static pull was 70 pounds.
In a letter to Ms. Signoff dated March 26, 1998, Dr. Richard McCarthy stated that: “[claimant] has a chronic pain situation that prevents him from participating in a lot of active forms of physical labor. If [claimant] can change his position on a regular basis and be left either sitting or standing in one spot for too long a period of time, and if he can put up with a full work day or a partial work day that would be perfectly suitable to me.”
ELDON F. COFFMAN, Chairman [23] Commissioner Humphrey concurs. [24] CONCURRING OPINION
[25] I reluctantly concur in the finding that claimant is entitled to wage-loss benefits totaling at least 40%. However, I do so only to preserve claimant’s award of benefits in light of the court’s decision in S S Construction, Inc. v. Coplin, 65 Ark. App. ___, ___ S.W.2d ___ (1999). In that case, the Court of Appeals held that we lack the authority to issue an opinion without a majority vote. Nevertheless, it is my opinion that the evidence supports a finding that claimant is permanently and totally disabled by virtue of the Odd-Lot Doctrine. [26] Based on the foregoing, I concur. [27] ________________________________ PAT WEST HUMPHREY, Commissioner [28] Commissioner Wilson concurs in part and dissents in part. [29] CONCURRING AND DISSENTING OPINION
[30] I concur in part and respectfully dissent in part from the majority’s opinion. I concur in the majority’s opinion finding that the claimant has failed to prove by a preponderance of the evidence that he is permanently and totally disabled. However, I must respectfully dissent from the principal opinion awarding the claimant 40% in wage loss benefits. In my opinion the claimant has failed to meet his burden of proof and the evidence does not support a finding of 40% in wage loss benefits. Therefore, I must respectfully dissent from the principal opinion awarding the claimant wage loss in the amount of 40%. [31] ______________________________ MIKE WILSON, Commissioner