POCHON v. HAROLD IVES TRUCKING COMPANY, 2000 AWCC 71

CLAIM NO. E317944

WES POCHON, EMPLOYEE, CLAIMANT v. HAROLD IVES TRUCKING COMPANY, EMPLOYER, RESPONDENT and RISK MANAGEMENT SOLUTIONS, TPA CARRIER, RESPONDENT

Before the Arkansas Workers’ Compensation Commission
OPINION FILED MARCH 2, 2000

Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.

Claimant represented by WILLIAM MCLEAN, Attorney at Law, Little Rock, Arkansas.

Respondent represented by J. RODNEY MILLS, Attorney at Law, Fort Smith, Arkansas.

Decision of Administrative Law Judge: Reversed

OPINION AND ORDER
The respondents appeal a decision of the Administrative Law Judge filed on June 17, 1999, finding that the claimant sustained wage loss disability benefits in the amount of 15% to the body as a whole. Based upon our de novo
review of the record, we find that the claimant has failed to prove by a preponderance of the evidence that he is entitled to any wage loss disability benefits. Accordingly, we hereby reverse the decision of the Administrative Law Judge.

The claimant was employed by the respondent as a long haul truck driver. On November 3, 1993, as he was exiting the interstate near Grove City, Pennsylvania, the claimant was involved in a rear end collision. The claimant was treated for neck and lumbar complaints at a local emergency and was subsequently flown back to Little Rock for evaluation and treatment. The claimant was evaluated at Medi Stat Medical Clinic in North Little Rock on November 4, 1993. Multiple spine x-rays were taken which revealed “no gross evidence of fracture or dislocation.” The claimant was treated conservatively and was released to return to work on modified duty. Additional x-rays were taken on November 5th, which showed no fracture or dislocation and no evidence of acute osseous abnormality. The claimant was referred for a lumbar spine MRI on November 9, 1993. The MRI revealed post surgical changes at L5 on the right. The claimant had previously undergone laminectomy surgery at the L5 level in 1983.

The claimant was referred to Dr. Austin Grimes, an orthopedic physician. Dr. Grimes reviewed the claimant’s x-rays and MRI’s results and treated him conservatively. Dr. Grimes noted in a report dated December 21, 1993, that the MRI did not show any evidence of a new herniated disc and he suggested that there was a “possibility of a recurrence, although small.” Dr. Grimes stated that the claimant’s complaints did not “fit the picture” and were not consistent with his objective findings.

The claimant was subsequently referred to Dr. Thomas P. Rooney. Dr. Rooney examined the claimant on January 11, 1994. Dr. Rooney noted that there was an absence of objective medical findings to support the claimant’s continued cervical and lumbar complaints. In a report dated January 11, 1994, Dr. Rooney noted:

X-rays of the cervical spine are normal. The disc spaces are well preserved. There are some calcifications in the anterior longitudinal ligament at C4-5 and 5-6. X-rays of the lumbar spine show a transitional lumbosacral vertebra. The lowest disc space is somewhat narrowed.
I reviewed his MRI done on his lumbar spine, from Little Rock Imaging, and it does show a mass on the right at L5-S1, which could be suggestive of a residual or recurrent disc material. A large portion of it is probably scar.
In summary, he has minimal objective findings and the findings that he does exhibit on examination, do not correlate with an L5-S1 disc on the right side, so I doubt the clinical significance of the MRI findings. He is nearly three months post-injury now, and I think he has reached his maximum healing period. In view of the fact that he has minimal objective findings, he should be able to return to his normal occupation, and I don’t think he has any permanent impairment as a result of this more recent accident.

Based upon Dr. Rooney’s findings, the respondent made a job available for the claimant. However the claimant refused to return to work for the respondent. Consequently, the claimant’s employment was terminated.

The claimant began seeking treatment from numerous physicians in St. Louis, Missouri area including physicians at the Veteran’s Administration Hospital. The claimant has also not worked since January of 1994 and has made no effort to return to work in any capacity at all. The claimant brought this claim seeking permanent and total disability benefits. Judge Mazzanti awarded the claimant a 15% wage loss disability. It is from this opinion that the respondents appeal and contend that the claimant is not entitled to any wage loss disability benefits. We agree.

We find that the evidence does not support a finding that the claimant is entitled to any wage loss disability benefits. 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 are motivation, post-injury income, credibility, and demeanor. 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). 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).

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 Fayetteville v. Guess, 10 Ark. App. 313, 663 S.W.2d 946 (1984); Oller v. Champion PartsRebuilders, 5 Ark. App. 307, 635 S.W.2d 276 1982.

In our opinion the claimant has failed to prove that he sustained any impairment or disability as a result of his November 2, 1993, incident. Therefore, the claimant is not entitled to any wage loss disability benefits because in order to receive wage loss the claimant must have some amount of permanent impairment.Needham v. Harvest Foods, 64 Ark. App. 141, ___ S.W.2d ___ (1998).

Immediately after the accident, objective testing revealed “no gross evidence of fracture or dislocation” of the claimant’s cervical spine and only a “congenital variation of S1” in the lumbar spine. An MRI of the claimant’s lumbar spine dated November 9, 1993, reflected “post-operative changes at L5 right” relating to the claimant’s 1983 lumbar laminectomy at L5. Although the MRI report did indicate “findings suggesting a minimal residual or recurrent disc” at L5 on the right without migration, this was never definitively established in any of the medical records.

Dr. Grimes’ examination of the claimant and his review of the claimant’s MRI indicate that he could not find any evidence of a new herniated disc although the possibility of a recurrence was described as “small”. Dr. Grimes also explained that the claimant’s MRI findings were not consistent with the claimant’s continued complaints.

Dr. Rooney’s medical records also suggest that the claimant does not have any objective findings. Dr. Rooney noted that the x-ray’s of the claimant’s cervical spine were normal and that the MRI report suggested that the residual or recurrent disc material was probably a scar. Dr. Rooney agreed with Dr. Grimes’ assessment that “the findings that he does exhibit . . . do not correlate with an L5-S1 disc on the right side, so I doubt the clinical significance of the MRI.” Dr. Rooney determined that the claimant should be able to return to his normal occupation and did not assess him any permanent impairment.

The medical reports of the physicians the claimant sought treatment from subsequent to Dr. Rooney’s evaluation also agree with Dr. Rooney’s conclusions. Dr. Carl Jacobs’ report of March 10, 1994, confirms that an MRI of the claimant’s cervical spine reflected only degenerative changes and showed no nerve root encroachment. A June 8, 1994, CT scan reflected only “mildly posterior osteophytes at C4-C5 and C6-7 consistent with early degenerative changes”.

It is significant that on August 9, 1994, despite the claimant’s continuing complaints of pain, an examination reflected no atrophy or weakness. A progress report dated September 19, 1994, also notes that the claimant’s complaints of chronic low back pain were complicated in part by his “pending disability determination from Social Security and lawsuit from MVA.”

It is also significant that all of the physicians that have treated the claimant since the November 2, 1993, accident have failed to assess the claimant with any permanent impairment that can be related to his accident.

Therefore, it is our opinion that the claimant has failed to prove by the preponderance of the evidence that he has sustained any permanent impairment as a result of his November 2, 1993, accident. All the medical records failed to indicate that there has been any assessment of permanent impairment and in fact Dr. Rooney stated that the claimant was able to return to work as early as January of 1994. It is apparent, that the claimant’s social security disability has played a factor in his returning to work. This is noted by the doctors who have treated him at the VA Hospital in St. Louis. Because we fail to find that the claimant has sustained any permanent impairment, he is not entitled to any wage loss disability benefits. Accordingly, we hereby reverse the decision of the Administrative Law Judge. This claim is denied and dismissed.

IT IS SO ORDERED.

_______________________________
ELDON F. COFFMAN, Chairman

_______________________________
MIKE WILSON, Commissioner

Commissioner Humphrey dissents.

DISSENTING OPINION

I must respectfully dissent from the opinion of the majority finding that claimant is not entitled to any benefits for his loss in wage earning capacity.

I would first point out that respondent has failed to meet its burden of proving that claimant was offered a bona fide and reasonably obtainable offer of employment at wages equal to or greater than the wages claimant was earning at the time of his injury. The entire testimony on this matter is contained on pages 31 and 32 of the transcript. In essence the evidence indicates that claimant may have been released at one time by Dr. Rooney; that respondent informed claimant to return to work; and that claimant did not return to work for respondent. There is no evidence as to what job may have been offered claimant or the wages that might have been earned at such a position.

Claimant is 47 years old and obtained his GE after quitting high school in the 11th grade. He apparently has one year of college course-work. In the military service, claimant was involved in aviation fueling. He has also had some schooling in sheet-metal work.

Claimant’s employment history includes five years as a sales representative and the remaining time as a truck driver, primarily long haul. Claimant sustained a compensable injury in November 1993 when his rig was rear-ended by another one. He has applied for and is receiving social security disability benefits.

Prior to the compensable injury, claimant was able to perform his job duties without difficulty. However, now claimant is extremely limited in his ability to drive (ride), walk, sit, stand, bend and engage in most other general daily activities. He has pain for which he takes prescription medications. In essence, his daily activities are extremely limited. Claimant testified that he was turned down for vocational rehabilitation because “there was nothing they could do.”

In my opinion, the decision of the Administrative Law Judge should be affirmed.

_______________________________ PAT WEST HUMPHREY, Commissioner