CLAIM NO. F004974
Before the Arkansas Workers’ Compensation Commission
OPINION FILED DECEMBER 22, 2004
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by HONORABLE LAWRENCE FITTING, Attorney at Law, Fort Smith, Arkansas.
Respondents No. 1 represented by HONORABLE J. DAVID WALL, Attorney at Law, Fayetteville, Arkansas.
Respondent No. 2 represented by HONORABLE DAVID PAKE, Attorney at Law, Little Rock, Arkansas.
Decision of the Administrative Law Judge: Affirmed as modified.
OPINION AND ORDER
The Arkansas Court of Appeals has reversed the Full Commission’s decision in the above-styled matter and has remanded for further proceedings. See, Pollard v. Meridian Aggregates, CA 04-218 (Ark.App. Sept. 29, 2004). After reviewing the entire record de novo, the Full Commission finds that the claimant sustained anatomical impairment in the amount of 10%. We find that the claimant sustained wage-loss disability in the amount of 40%, for which Respondent No. 2, Second Injury Fund, is liable.
I. HISTORY
Michael Pollard, age 46, testified that he was a high school graduate. Mr. Pollard testified that he had received technical training in computer applications and electronics. The claimant had worked as a shift supervisor in a security company and had performed heavy manual labor in the logging industry. The claimant had also worked as a forklift operator. The claimant testified that he injured his back in 1985 and underwent two surgeries. Following this injury and surgeries, “I worked for Wackenhut Securities, and I walked a lot. I did a lot of walking. And it just eventually built myself back up to when I went back into the logging business. It was a couple of years, I think.” The claimant testified that his back “did great after I rebuilt myself. I got back in. I did everything I could do before.” The claimant testified that he had experienced numbness in his right hip following the surgery, but with regard to work, “It didn’t affect me at all.”
The claimant testified that he began working for the respondent-employer in 1999, performing manual labor. The claimant’s testimony indicated that in about March 2000, “I was operating a trackhoe. The whipping action of the trackhoe started aggravating my back, making my back hurt.” The parties stipulated that the claimant sustained a compensable injury to his back on or about April 4, 2000. “They told me to go home and not come back until I got it fixed,” the claimant testified.
Dr. J. T. DeHaan treated the claimant conservatively until referring the claimant to Dr. Guy O. Danielson, III. Dr. Danielson examined the claimant on September 6, 2000 and gave the following impression: “A. Status postop previous lumbar fusion from L4 to the sacrum with retained instrumentation. B. Back and leg pain secondary to occupational injury with stenosis and superimposed upon a preexisting congenitally small canal and lumbar stenosis. C. The patient was relatively symptomatic (sic) prior to his injury, therefore, the injury would be considered the cause of his present condition.” On or about October 10, 2000, Dr. Danielson performed “Decompressive lumbar laminectomy L2-3, L3-4 with removal of Knodt rods and repair of cerebrospinal fluid leak at L5-S1.”
The claimant received follow-up treatment following surgery. Dr. Danielson’s impression on or about March 27, 2001 was “A. Status postop previous lumbar fusion at L4-5 in the sacrum. B. Recent decompressive laminectomy L1-2 and L2-3. C. Mechanical back pain which has not been relieved by his decompressive laminectomy.” Dr. Danielson recommended pain management and stated, “I do not think that it is reasonable to expect him to go back to his previous job and I think he will need to be retrained in a more sedentary occupation.”
Dr. Yeshwant P. Reddy evaluated the claimant on April 12, 2001 and stated, “On talking to Mr. Pollard, it is quite clear that he is motivated to get better and return to some kind of employment.”
On May 14, 2002, Dr. Kent C. Hensley wrote to a registered nurse with Oklahoma Property Casualty Insurance:
Michael Eugene Pollard presents today for a workers’ compensation evaluation upon your referral. . . . This patient, by history, developed low back pain beginning approximately 2 weeks prior to April 4, 2000. The patient states he operated heavy equipment which tended to bounce and jar. The patient had had a previous injury to his low back in 1985 and had two surgeries at that time including a L4 to S1 fusion. He states he was relatively asymptomatic subsequent to that prior intervention. Evaluation subsequent to his onset of back pain in March and April of 2000 revealed spinal stenosis most prominent at L2-3 although he had some degree of spinal stenosis at L1-2 and L3-4. Clearly this patient’s spinal stenosis was in good part related to pre-existing degenerative disease as well as congenitally short pedicles. However, the patient did have a broad-based disc bulge at L2-3 which at least had the potential to have been aggravated by his employment as described. Therefore, his “injury” while working for Meridian Aggregate would have been at most an aggravation of a pre-existing condition in his lumbar spine. He subsequently underwent three-level decompression by Dr. Danielson on 10-10-00. He also had removal of the hardware at his lower two levels which would be unrelated to his current work-related condition. In my opinion, this patient has reached maximum medical improvement. In my opinion, he is no longer temporarily totally disabled. However, he will be severely limited. This patient has involvement of every level of his lumbar spine. Therefore, in my opinion, he should not return to jobs that require more than occasional bending and lifting over 20 pounds. Given his prior work history he almost certainly will require vocational rehabilitation or at least vocational counseling prior to returning to the work force. Given the magnitude of this patient’s surgical interventions, it is my opinion that physical therapy, work hardening, etc. is not indicated. He runs the potential of further injury but even with successful work hardening he would not be able to return to any type of physical employment. This patient has had a spinal fusion with two additional surgeries at a total of five levels. This results in a 19% permanent partial impairment of the whole man. He has loss of range of motion that results in a 14% permanent partial impairment of the whole man. He has no radicular symptomatology or radicular signs. Combining the above according to the Guides results in a total of 30% permanent partial impairment of the whole man. In my opinion apportionment is appropriate. As a result of his prior two surgeries, the patient is felt to have a 15% permanent partial impairment of the whole man. As a result of his more recent surgery following his claimed injury during his employment for Meridian Aggregate, he is felt to have an additional 15% permanent partial impairment of the whole man regarding his lumbar spine. . . .
Dr. Danielson referred the claimant for a Functional Capacity Evaluation, and an Occupational Therapist provided the following assessment on May 20, 2002:
At this time, the client is demonstrating restrictions with all activities. His strength capabilities do not match any work category as defined by the U.S. Department of Labor’s Dictionary of Occupational Titles. Even sedentary work is restricted as the client needs to alternate sitting, walking, standing, or lying down frequently during the day. He ambulates with a cane in his left hand on a constant basis inside and outside. Upper extremity use is limited due to poor positional tolerance.
The parties stipulated that there was “no dispute” over payment of temporary disability compensation and medical expenses accruing prior to June 1, 2002.
Dr. Hensley wrote to the attorney for Respondent No. 1 on August 28, 2002:
Subsequent to my previous evaluation of May 14, 2002, I had the opportunity to review your note of August 23, 2002. In this note, you instructed me regarding aspects of Arkansas law. According to your note of August 23, 2002, range of motion is not to be utilized in the rating of a patient. Therefore, his loss of range of motion, which resulted in a 14% permanent partial impairment of the whole man according to guides cannot be utilized in his rating. He was felt to have a spinal fusion with two additional surgeries at a total of five levels. This results in a 19% permanent partial impairment of the whole man. Please note that previously I had combined 19% and 14% according to the guides, which gave only 30% as provided by the table in the guides. Given that range of motion is not to be utilized he, therefore, is felt to have a total of 19% permanent partial impairment of the whole man regarding his lumbar spine. . . .
A pre-hearing order was filed on September 10, 2002. The claimant contended that he had sustained “a substantial degree” of permanent physical impairment as a result of the April 2000 compensable injury, and that he had been rendered “permanently and totally disabled.” Respondent No. 1 contended that the April 2000 compensable injury was “a temporary aggravation of a preexisting condition and was not the major cause of any degree of permanent physical impairment. The respondent denies that the claimant is entitled to any permanent disability benefits from the respondent, either partial or total.” Respondent No. 1 alternately contended that if the claimant had sustained permanent physical impairment, then “the respondent is liable only for that degree of permanent physical impairment and that any resulting `functional disability’ or loss of wage earning capacity which the claimant may have subsequently experienced is the combination of the claimant’s preexisting disability and impairment for which the Second Injury Fund is responsible” pursuant to Ark. Code Ann. § 11-9-525. Respondent No. 2, Second Injury Fund, denied any liability for permanent disability benefits.
The parties agreed to litigate the following issues: “1. The claimant’s entitlement to permanent disability benefits for both permanent physical impairment and loss of wage earning capacity. 2. Applicability of Ark. Code Ann. § 11-9-525 and liability of the Second Injury Fund.”
Hearing before the Commission was held on November 19, 2002. The claimant testified that following the second injury and surgery, “I’ve had a lot more numbness than I had. . . . I’ve got it on the left side, I’ve got it on the right side. I’ve got it on the legs and my groin area.” The claimant testified on direct:
Q. How has this injury affected your ability to do work activities?
A. Well, I’m not able to. At this point, I can’t stand on my feet all day, I can’t sit for long periods of time, I have to lay down quite a bit during the day. I don’t walk very far. I can’t walk very far. I just don’t do well. Some days are worse than others.
Q. I see you have a cane there. Do you —
A. Yes. . . .
Q. Do — do you actually need it to walk or do you just find and feel better to have it there?
A. No, I actually need it to walk.
An administrative law judge (ALJ) filed an opinion on January 31, 2003. The ALJ found, among other things, that the claimant had sustained anatomical impairment in the amount of 11% as a result of his compensable injury. The ALJ found that the Second Injury Fund was liable for “permanent partial disability benefits in the amount of 20% to the body as a whole.” The Second Injury Fund appealed to the Full Commission. The Fund argued that the administrative law judge erred in finding “that the April 4, 2000 work incident was the major cause for both the 11% whole body anatomical impairment awarded against the Respondent-employer, and the 20% wage loss disability awarded against the Second Injury Fund.” The claimant cross-appealed, contending that he was permanently and totally disabled.
The Full Commission filed an opinion on November 10, 2003 and reversed the administrative law judge’s decision. The Full Commission found that the claimant failed to prove that the April 4, 2000 injury was the major cause of the claimant’s 11% anatomical impairment. The Full Commission therefore found that the claimant was also not entitled to wage-loss disability.
The claimant appealed to the Arkansas Court of Appeals, which reversed the Full Commission’s decision and remanded the case in an opinion delivered September 29, 2004. The Court of Appeals held:
[T]he evidence in this case demonstrates that the March 2000 work-related aggravation was the major cause of some anatomical impairment, and there is no evidence to the contrary. . . . It is clear that the need for surgery and resulting impairment would not have occurred but for the work-related aggravation. . . .
We reverse and remand this case because the Commission erred in finding that Mr. Pollard’s compensable aggravation was not the major cause of a physical impairment. On remand, it is within the Commission’s authority to assess its own impairment rating using the AMA Guides to the Evaluation of Permanent Impairment (4th ed. 1993), rather than rely solely on its determinations of the validity of the ratings assigned by a physician. . . . We direct the Commission to Table 75 on page 113 of the AMA Guides, where it prescribes an impairment rating of 8% for spinal stenosis treated by a single-level lumbar decompression, without fusion and without residual signs and symptoms. Notably, the applicable AMA Guides
provide no permanent impairment rating for spinal stenosis that has not been operated on. Because we reverse on the issue of anatomical impairment, the Commission must also address Mr. Pollard’s argument that he is entitled to permanent wage-loss disability.
II. ADJUDICATION
A. Permanent Impairment
An injured worker must prove by a preponderance of the evidence that he is entitled to an award for a permanent physical impairment. Weber v. Best Western of Arkadelphia, Workers’ Compensation Commission F100472 (Nov. 20, 2003). Ark. Code Ann. § 11-9-522(g) directed the Commission to adopt an impairment rating guide to be used in assessing anatomical impairment. The Commission therefore established Rule 34, which adopted the Guides to the Evaluation of Permanent Impairment (4th ed. 1993) published by the American Medical Association. Any determination of the existence or extent of physical impairment shall be supported by objective and measurable physical findings. Ark. Code Ann. § 11-9-704(c).
The Court of Appeals in the present matter has directed the Commission to Table 75, p. 113 of the Guides. The Court referred to Roman Numeral II, “Intervertebral disk or other soft-tissue lesion,” where an 8% impairment is assigned for “surgically treated disk lesion” at the lumbar spine. The Commission notes that Dr. Danielson performed a “decompressive lumbar laminectomy L2-3, L3-4 with removal of Knodt rods and repair of cerebrospinal fluid leak at L5-S1.” Pursuant to Table 75, the claimant would indeed be entitled to an 8% rating for a surgically treated disk lesion. The claimant underwent disk surgery at two levels, L2-3 and L3-4. Adding one percent per level, according to Table 75, we calculate the claimant’s anatomical impairment to be 10%. The Full Commission therefore finds that the claimant proved he was entitled to a 10% anatomical impairment rating for his April 4, 2000 compensable injury.
B. Wage Loss
In considering claims for permanent partial disability benefits in excess of the employee’s percentage of anatomical impairment, the Commission may take into account, in addition to the percentage of permanent physical impairment, such factors as the employee’s age, education, work experience, and any other matters reasonably expected to affect his future earning capacity. Ark. Code Ann. § 11-9-522(b)(1). The present claimant is age 46 and a high school graduate. The claimant’s work history consists of primarily manual labor. The Full Commission finds that the claimant was a credible witness. The claimant had a surgical back injury in 1985, but completely recovered afterward, according to the claimant’s credible testimony. The claimant began working for Meridian in 1999 and sustained a compensable injury in April 2000. The claimant underwent surgery in May 2000 and has sustained a 10% anatomical impairment as a result of his compensable injury and surgery.
The Full Commission finds that the administrative law judge erred in awarding only 20% wage-loss disability. We again note that the claimant is only a high school graduate, now age 46, with mainly a history of manual labor. He has mostly worked as a security guard and logger. After the claimant’s compensable injury, the respondent-employer told him not to come back “until his back got fixed.” Following the claimant’s surgery, Dr. Danielson stated in March 2001, “I do not think that it is reasonable to expect him to go back to his previous job and I think he will need to be retrained in a more sedentary occupation.” We note Dr. Reddy’s statement in April 2001, “it is quite clear that he is motivated to get better and return to some kind of employment.”
Dr. Hensley informed an insurance carrier in May 2002 that the claimant will be “severely limited. . . . Given the magnitude of this patient’s surgical interventions, it is my opinion that physical therapy, work hardening, etc., is not indicated. He runs the potential of further injury but even with successful work hardening he would not be able to return to any type of physical employment.” A functional capacity evaluation in May 2002 indicated, “His strength capabilities do not match any work category as defined by the U.S. Department of Labor’s Dictionary of Occupational Titles. Even sedentary work is restricted as the client needs to alternate sitting, walking, standing, or lying down frequently during the day. He ambulates with a cane in his left hand on a constant basis inside and outside. . . .”
Although the Full Commission does not find that the claimant is permanently and totally disabled, the preponderance of evidence demonstrates that the claimant cannot return to the type of physical labor he has always performed. Pursuant to Ark. Code Ann. § 11-9-522(b)(1), the Full Commission finds that the claimant proved he sustained wage-loss disability in the amount of 40%.
C. Second Injury Fund
Liability of the Second Injury Fund comes into question only after three hurdles have been overcome. First, the employee must have suffered a compensable injury at his present place of employment. Second, prior to that injury the employee must have had a permanent partial disability or impairment. Third, the disability or impairment must have combined with the recent compensable injury to produce the current disability status Mid-State Constr. Co. v. Second Injury Fund, 295 Ark. 1, 746 S.W.2d 539 (1988).
The parties stipulated in the present matter that the claimant sustained a compensable injury on April 4, 2000. The first hurdle has therefore been overcome. Second, it is apparent that the claimant had suffered a prior disability or impairment prior to the compensable injury. The claimant underwent back surgery at multiple levels in about 1985. The record shows that the claimant suffered some prior disability and/or impairment. As a result of the prior injury.
The issue the Commission therefore must decide is, whether the prior impairment combined with the compensable injury to produce the claimant’s current disability status. The Full Commission finds that the prior disability or impairment indeed combined with the recent compensable injury to produce the claimant’s current disability status. We recognize the claimant’s testimony that he completely recovered from the 1985 surgery. “I did everything I could do before. . . . I was back to normal.” the claimant testified. The claimant experienced some post-surgery numbness in his hip, but has far as working, “It didn’t affect me at all.”
The claimant began performing full manual labor for the respondents in 1999 and of course sustained a compensable injury in 2000. Dr. DeHaan noted in May 2000, “he had been doing just fine, however, and working full time until this most recent problem.” However, the Commission notes Dr. Hensley’s May 2002 correspondence, wherein Dr. Hensley opined that the claimant had sustained an increased anatomical impairment as a result of the claimant’s most recent injury. The claimant testified that following the second injury and surgery, “I’ve had a lot more numbness than I had. . . . I’ve got it on the left side, I’ve got it on the right side. I’ve got it on the legs and my groin area.” The Full Commission finds that there was a “combination” of the claimant’s prior impairment and disability with the most recent compensable injury to produce the claimant’s current disability status. Respondent No. 2, Second Injury Fund, is therefore liable for permanent partial disability benefits in the amount of 40%.
Based on our de novo review of the entire record, the Full Commission finds that the claimant sustained anatomical impairment in the amount of 10%. We find that the claimant sustained an additional wage-loss disability in the amount of 40%. The Second Injury Fund is liable for the claimant’s wage-loss disability. The Full Commission therefore affirms, as modified, the opinion of the administrative law judge. The claimant’s attorney is entitled to fees for legal services pursuant to Ark. Code Ann. § 11-9-715(a) (Repl. 1996). For prevailing in part on appeal to the Full Commission, the claimant’s attorney is entitled to an additional fee of two hundred fifty dollars ($250), pursuant to Ark. Code Ann. § 11-9-715(b)(2) (Repl. 1996).
IT IS SO ORDERED.
______________________________ OLAN W. REEVES, Chairman
______________________________ SHELBY W. TURNER, Commissioner
Commissioner McKinney dissents.