CLAIM NO. E004521
Before the Arkansas Workers’ Compensation Commission
OPINION FILED DECEMBER 5, 2001
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE THOMAS H. McGOWAN, Attorney at Law, Little Rock, Arkansas.
Respondents No. 1 represented by the HONORABLE WILLIAM C. FRYE, Attorney at Law, Little Rock, Arkansas.
Respondent No. 2 represented by the HONORABLE DAVID L. PAKE, Attorney at Law, Little Rock, Arkansas.
Decision of the Administrative Law Judge: Affirmed.
OPINION AND ORDER
Respondent No. 1 appeals to the Full Workers’ Compensation Commission an administrative law judge’s opinion filed May 25, 2001. The administrative law judge found that the claimant “has been rendered permanently and totally disabled as a result of his April 14, 1987 neck condition. Since this case is not governed by the provisions of Act 796 of 1993, it is found, specifically, that the claimant is permanently and totally disabled under the Odd-Lot Doctrine.” The administrative law judge found that the Second Injury Fund “has no liability in this case because the condition of ankylosing spondylitis was not diagnosed until 1999, some 12 years after the claimant’s compensable injury. It is further found that the claimant’s condition of ankylosing spondylitis was latent as it would relate to potential Second Injury Fund liability.” After reviewing the entire record de novo, the Full Commission affirms the opinion of the administrative law judge.
I. HISTORY
Mark Rouse, age 47, dropped out of school after the 11th grade but obtained a GED several years later. Mr. Rouse began operating a lathe for Siemens Energy and Automation, Inc. in about 1974, which position required occasional heavy manual labor. The claimant said that he moved to the tool room in approximately 1980, and this position required less physical labor.
The parties stipulated that the claimant sustained a compensable injury on April 14, 1987. The claimant testified, “I slipped in some coolant and water, and I was hauling a buggy with a lot of weight on it. My shoulder hit a wall and snapped my head back and I fell.” As a result of the injury, the claimant testified, “I had neck problems, but mostly it was my left shoulder was hurting real bad, and I had a lot of — it hurt in different places, the fingers, up and down the left arm.”
The impression from an MRI of the cervical spine taken in June, 1988 was “Moderate sized central/left paracentral disc herniation at the C6-7 level with evidence for impingement on the cord.”
A neurological surgeon, Dr. Robert D. Dickins, Jr., wrote to Dr. John Riddle on June 6, 1988:
He fell about a year ago injuring his neck. He has had intermittent pain in his neck and left shoulder since that time with intermittent numbness in his shoulder and upper arm. He has walked with a cane because the muscle spasms tend to pull him to the left side and he supports himself with a cane when he walks. . . . We have arranged for him to have a course of out-patient physical therapy to see if this will modify his symptoms. I will then see him in follow-up after this has been performed.
The record indicates that physical therapy was ultimately unsuccessful. Dr. Dickins eventually referred the claimant to another neurological surgeon, Dr. Wilbur M. Giles, who began treating the claimant in June, 1988.
In August, 1988, the claimant sustained a work-related crush injury to his left ring finger, for which he underwent surgery. On January 9, 1989, Dr. Marcia L. Hixson wrote, “I would calculate his permanent/partial impairment as being 30% of the ring finger, which would be 3% of the hand.”
The following impression resulted from another MRI of the cervical spine, taken May 25, 1990:
Small left paracentral herniation of the C6-C7 disc causing minimal cord effacement, and perhaps impinging on the left C7 rootlets. There appears to be some associated mild end-plate spondylosis at this level.
The record indicates that Dr. Giles performed an anterior cervical fusion at C6-C7 in June, 1990. The claimant continued to periodically treat thereafter with Dr. Giles.
Dr. Giles reported on August 24, 1992:
He is continuing to have occasional neck and shoulder pain and stated that he had been having difficulty with his back going out on him, sometimes on the left and then sometimes on the right, where he simply cannot walk for a day or two and complains of pain somewhat in the groin area and into the hip. We had an MRI of the lumbar spine performed on him which is totally normal and does not reveal any discogenic disease in the lumbar spine. His MRI of the neck actually shows some mild improvement. His spondylosis at 6-7 is very mild and he has only a minimal bulge at C4-5. I do not think any further therapy or anti-inflammatory treatment is currently warranted at the present time. I did tell him he should consider seeing an orthopedist about the hip or leg, as I do not think that this is coming from his back.
The following impression resulted from an MRI of the cervical spine taken on May 23, 1994:
1. Anterior interbody fusion at the C6-C7 level with no complicating process seen.
2. There is narrowing of the right C4 neural foramina secondary to degenerative changes. This has progressed since the exam in 1990.
Dr. Jim J. Moore performed a neurosurgical independent medical examination and reported in February, 1995:
The patient had an injury in late 1987 and he was treated very comprehensively and conservatively by a number of physicians, including Dr. Riddle, Dr. Robert Dickins and Dr. Giles. His investigation included cervical MRI and cervical myelogram and CT, all of which pointed to a lesion at the C6-7 level. Ultimately the patient had enough problems that surgery was done in 1991, and according to the report, this was an anterior cervical fusion at the C6-7 level with a fairly large cervical disc (4.5 cc) being removed.
The patient had a fairly benign postoperative course. He states that the radiational pain into the left upper extremity was eliminated by the surgery, although he continued to have intermittent problems with neck pain and a grating sensation in the neck with range of motion. He also has some episodic numbness of the right side, primarily in the supraclavicular area, and in the mandibular area of the right jaw. The patient states that he is happy he had the surgery. . . .
The patient has also had some low back pain, but this is not referable, or related, to the cervical problem. His family physician, Dr. Riddle, has advised him that he has a spina bifida. A lumbar MRI dated 08/24/92 is described as being negative. . . .
It is felt that patient is in a rather remote postoperative status for anterior cervical fusion of C6-7. There have been some changes, or progressive problems, developing at C5-6 primarily. It is well known there is an acceleration of wear and tear on the joints above and below the level of fusion, and so I do believe the problems, as are developing, likely would be related to the injury and fusion as was required at the C6-7 level. I do concur with the attending neurosurgeon that conservatism would best be utilized for as long as possible. At the present time, there does not appear to be any need for surgical recommendation.
The claimant reported in April, 1997 that he felt a “snap” in his neck while lifting heavy furniture at work. Dr. Giles diagnosed “Cervical disc syndrome, active, inflammatory, with mild radiculitis.” Dr. Giles wrote in August, 1998 that the claimant “should go ahead with an anterior cervical diskectomy and arthrodesis” at C5-6. The claimant left work with the respondent-employer at about this time, never to return.
The record indicates that Dr. Giles performed an anterior fusion at C5-C6 in February, 1999. In March, 1999, Dr. Giles diagnosed “Status anterior cervical disckectomy, arthrodesis for cervical discogenic syndrome and cervical radiculitis, C5-6, resolved; Cervical degenerative disease, inflammatory.” The claimant informed Dr. Giles in May, 1999 that his condition had worsened, and “He does not feel that he is employable nor does he feel like he can ever return to his previous working status.” Dr. Giles reported on May 26, 1999:
The EMG and nerve conduction study is within normal limits and shows no evidence of nerve root irritability and normal nerve function. MRI of the shoulder shows acromioclavicular arthritis, but no evidence of separation. MRI of the cervical spine shows a stable disc protrusion at C4-5 with solid fusion at 6-7 and the fusion at 5-6 with some mild joint spurring. . . .
I have talked with Mr. Rouse at length today. He does not feel that he can return to his working capacity which requires heavy lifting and push-pull type maneuvers and feels that he is incapable of returning to the work force. I feel he will have reached maximum medical improvement from his surgical procedure as of June 1, 1999. I feel that he has sustained an additional 5% permanent partial disability to the body as a whole as a result of the surgical procedure and will be in need of occasional anti-inflammatory drugs, muscle relaxants and mild analgesics from time to time in the future. I have discharged him from my care. I recommend that he consider getting an orthopedic man to look at his shoulder problem to see if anything could be offered to him from the orthopedic standpoint. There is nothing further that I can add from the neurosurgical aspect other than what has been previous (sic) stated.
The parties stipulated that Respondent No. 1 accepted and paid a 10% anatomical impairment rating assigned by Dr. Giles.
Dr. Richard D. Peek saw the claimant on November 4, 1999 and diagnosed the following:
1. Lumbar and cervical degenerative disc disease.
2. Status post anterior cervical fusion.
3. Osteoarthritis, left shoulder.
4. Ankylosing spondylitis. . . .
I have discussed with him that surgery on his back would only compound the problem unless he were to have severe nerve root impingement. He has diffuse arthritis which will cause ongoing problems for him. It would be better if he were medically managed rather than considering him a surgical candidate. We will try anti-inflammatories and Trazodone for his sleep disorder and refer him for a rheumatological evaluation.
The following impression resulted from an MRI of the claimant’s lumbar spine taken November 11, 1999:
At L4/L5 there is mild narrowing and degeneration and bulging of the disc. A small to moderate sized right posterior lateral disc herniation abuts the right L4 nerve rootlet as it exits the foramen. At L5/S1 there is disc degeneration and mild posterior disc bulge or broad based herniation, slightly eccentric to the right. It just brushes the right L5 nerve rootlet as it exits the foramen. At L2/L3 there is moderate narrowing and degeneration and bulging of the disc.
Dr. Donald G. Leonard, a rheumatologist, examined the claimant and gave the following diagnostic impression on January 4, 2000:
1. Inflammatory spondylitis by history. R/O CTD.
2. S/P cervical laminectomy/fusion times 2 with poor results with persistent radicular pain.
3. Reactive depression.
Dr. Leonard began a new course of conservative treatment.
The claimant was notified of a “Fully Favorable” decision from the Social Security Administration on February 23, 2000. The claimant was awarded a period of disability pursuant to the Social Security Act.
A vocational rehabilitation counselor, Melissa Rhoads, began working with the claimant on November 22, 2000.
Mr. Rouse claimed entitlement to additional worker’s compensation, and a pre-hearing was held before the Commission on December 4, 2000. The claimant contended that he had been rendered permanently and totally disabled as a result of his compensable injury of April 14, 1987. The claimant contended in the alternative that if he was not found to be permanently and totally disabled, then he was entitled to some wage-loss disability in excess of the 10% anatomical impairment rating. The claimant contended that medication prescribed by Dr. Giles was reasonable, necessary, and related to the compensable injury. Respondent No. 1 contended that the claimant was not entitled to any wage-loss disability, that the claimant’s disability was actually caused by a low back condition. Respondent No. 1 contended that if the claimant was entitled to wage-loss disability, it would be the liability of the Second Injury Fund. The Second Injury Fund contended that it was not liable in the claim. The Second Injury Fund contended that the claimant’s low back condition was latent and would not subject the Fund to liability.
On a questionnaire provided by Melissa Rhoads, Dr. Leonard diagnosed “ankylosing spondylitis” on January 3, 2001. Dr. Leonard opined that the claimant was “100% restricted not rehabable (sic)” and “can’t do physical labor.”
Dr. Giles wrote to Melissa Rhoads on January 16, 2001:
I am in receipt of your letter of 1/16/01 and I think that it is impossible for me to even begin to make a response to your letter as it has been almost two years since Mark Rouse has even been seen and evaluated. When last seen in my office in May of 1999 it was stated for the letter, that he could not return to a working capacity which required heavy lifting and push/pull type maneuvers, and Mr. Rouse himself felt because of his intractable pain that he was totally incapable of returning to the work force. He was discharged from my care at that time and I do not know who has seen nor treated him during the intervening two year period. I think it is highly unlikely that this man will ever return to a working capacity.
I have no further comments on the matter as I do not feel he is employable.
The parties deposed Dr. Leonard on January 26, 2001. Dr. Leonard testified regarding his definition of “ankylosing spondylitis”:
A. That’s a form of inflammatory arthritis that sometimes fuses the spine. That’s something he was born with a tendency to develop some time in his life. It just happens.
Q. And he had that all the way, from in the cervical and lumbar area, or did he have that just in the lumbar area?
A. Let’s go backwards here. It was worse in the lumbar area, most pronounced, if you will, or more severe, if you will. . . .
Q. Is that just a congenital problem that eventually develops?
A. No, it’s more complicated than that. He also had a congenital abnormality. He had partial lumbarization of a sacral vertebra, which is something he was born with. It was just a little additional problem of the spine.
Q. I know, but this ankylosing spondylitis, is that something he was just born with and it finally became symptomatic?
A. It’s an inflammatory arthritis that just develops sometime in life, either precipitated by severe mental or physical stress usually.
Q. Did you attribute it to anything in particular in his case, the development of it?
A. He’s just a routine case of ankylosing spondylitis. . . .
Q. Okay. Due to this condition that you’re treating him from, is he restricted in any way as far as activities?
A. About 100 percent. In order to be receiving social security disability and ultimately Medicare as a young man, you have to be considered 100 percent impaired. . . .
Q. Well, if we were trying to figure out something he might be able to do, what kind of restrictions would he have as far as sitting, standing, lifting because of this condition?
A. He’s 100 percent restricted for any kind of lifting much more than ten pounds or less, I’d say. . . . Probably couldn’t sit more than two hours in a day all totaled together. . . . Forget rehab on this guy, he’s got a chronic incurable rheumatic condition. He’ll never be a blue collar worker again. You know the statistics. Once you’re out with a back ailment for more than a year, you never go back to work.
Dr. Leonard testified that the claimant’s arthritic condition was not causally related to the claimant’s cervical surgeries.
The parties deposed Dr. Giles on February 5, 2001. Dr. Giles testified that there had been no evidence of degenerative disease in the claimant’s cervical spine at the time he began treating the claimant. Dr. Giles testified regarding his January 16, 2001 correspondence to Melissa Rhoads:
A. Based on what he was when I saw him two years ago, he wasn’t employable. That’s based on two things. One, he certainly had a restriction of motion at the time I last saw him, both in flexion, extension, and rotation. Any type of overhead work aggravated him. Mr. Rouse, however, felt very strongly that he could not work and very emphatically told me that he had no intention of returning to work. I didn’t argue with him one way or the other. Certainly, he has enough degenerative changes in his neck that it would be difficult for him to do overhead work, or push-pull type maneuvers, or sit in front of a computer, or anything of that nature for any period of time. He was quite vehement that he did not plan to return to the workforce. I told him that the chronic shoulder and arm pain that he had, certainly a good manifestation of that is from his cervical neck disease, but he also manifested at that time complaints of shoulder pain from which he had some problem by MRI with arthritis in his shoulders. And I told him he should have an orthopedic man evaluate him at that time. I don’t know whether he ever did that or not. Now, I don’t know whatever happened relative to that, and I never heard from him again following that.
The respondent-employer’s attorney showed Dr. Giles the lumbar abnormalities shown on diagnostic testing, and asked:
Q. If Mr. Rouse had these kinds of problems in his lumbar spine suggesting these herniated — suggesting a lumbar herniation, would that be expected to contribute to his disability status along with the cervical problems?
A. Yes, it would. . . .
Q. Could an earlier form of ankylosing spondylitis have been responsible for the cervical findings that you saw on Mr. Rouse?
A. Not in my opinion.
Dr. Giles opined that the claimant needed a functional capacity evaluation, and “I think that’s going to give you your answer.” Such a study was done on April 5, 2001: “The results of this evaluation indicate that Mark Rouse displayed lifting capabilities of the light category he did not display the physical abilities to meet the criteria of the sedentary category of work.”
Hearing before the Commission was held on May 3, 2001. Bob White, a vocational rehabilitation specialist, testified that he had interviewed the claimant, and that he had reviewed the depositions of Dr. Giles and Dr. Leonard, as well as the functional capacity evaluation. Mr. White stated that the claimant was considered “a younger individual.” Mr. White testified:
A. [T]he functional capacity assessment does seem to indicate, Your Honor, that while he can lift in the category of light work, exertionally that he does have significant problems with sitting, standing, and walking which do not meet the criteria of sedentary work. If that is credible, Your Honor, and factual, it would be my opinion, based on that, that he is not capable of returning to any type of work. . . . And I do believe it would be very difficult for a man if he has these problems, and they are to the extent that they appear to me, to sustain an eight hour work day or a forty hour work week on a consistent basis. . . . I believe he’s disabled, but I believe his disability goes back to Dr. Giles in his deposition as to the cervical fusion. I do believe ankylosing spondylitis is a significant, possibly contributing factor to the ultimate total disability, but in terms of ability to work, it would be my opinion that the cervical fusion is the primary and major cause.
After the hearing before the Commission, the administrative law judge filed an opinion on May 25, 2001. The administrative law judge found that the claimant “has been rendered permanently and totally disabled as a result of his April 14, 1987 neck condition. Since this case is not governed by the provisions of Act 796 of 1993, it is found, specifically, that the claimant is permanently and totally disabled under the Odd-Lot Doctrine.” The administrative law judge found that Respondent No. 1 was liable for the claim, and that the Second Injury Fund was not liable. Respondent No. 1 appeals to the Full Commission.
II. ADJUDICATION
When determining the degree of permanent disability sustained by an injured worker, the Commission must consider the degree to which the worker’s future wage earning capacity is impaired. In addition to medical evidence demonstrating the degree to which the worker’s anatomical disabilities impair his earning capacity, the Commission must also consider other factors, such as the worker’s age, education, work experience, and any other matters which may affect the worker’s future earning capacity, including the degree of pain experienced by the worker. Ark. Code Ann. § 11-9-522(1987); Tiller v. Sears, 27 Ark. App. 159, 767 S.W.2d 544 (1989). 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).
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. Camelot Hotel, 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. 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. If the claimant makes 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.
In considering the factors which may affect an employee’s future earning capacity, we may consider the employee’s motivation to return to work, since a lack of interest or a negative attitude impedes our assessment of the claimant’s loss of earning capacity. City ofFayetteville v. Guess, 10 Ark. App. 313, 663 S.W.2d 946 (1984); Oller v.Champion Parts Rebuilders, 5 Ark. App. 307, 635 S.W.2d 276 (1982).
In the present matter, the Full Commission affirms the administrative law judge’s finding that the claimant has been rendered permanently and totally disabled as a result of his compensable injury. The claimant began performing heavy manual labor for the respondents in 1974. The claimant displayed no evidence of physical problems prior to his compensable injury of April 14, 1987. The claimant slipped, his shoulder hit a wall, his head snapped back, and he fell. Since the compensable injury, the claimant has experienced significant and increasing pain in his neck and left shoulder, as well as abnormal findings on diagnostic testing. Yet, the claimant continued to diligently work for the respondents, even after a compensable crush injury and resulting impairment to his left upper extremity in 1988.
Dr. Wilbur Giles performed an anterior cervical fusion at C6-C7 in June, 1990. The claimant again returned to work after recovering from his surgery. In April, 1997, the claimant felt a “snap” in his neck while lifting heavy furniture for the respondent-employer. Dr. Giles recommended additional surgery in August, 1998, and the claimant was physically unable to return to work after that time. Dr. Giles performed an anterior fusion at C5-C6 in February, 1999. The claimant told Dr. Giles in May, 1999 that he could not return to his work for the respondents, which duties included heavy lifting and push-pull maneuvers. Dr. Giles assigned an anatomical impairment rating, accepted and paid by the respondents.
The claimant ultimately began treating with a rheumatologist, Dr. Donald Leonard. Dr. Leonard stated in January, 2001 that the claimant was permanently and totally disabled from performing physical labor. In a deposition taken February 5, 2001, Dr. Giles reiterated his opinion that the claimant was no longer employable. Dr. Giles also stated that a functional capacity evaluation would be conclusive in indicating whether or not the claimant could work. The resulting functional capacity evaluation showed that the claimant could not perform sedentary work due to his physical condition. Mr. Bob White, a vocational counselor, reviewed the evaluation and also concluded that the claimant was not capable of performing any type of work.
The Dissenting Opinion agrees that the claimant is permanently and totally disabled, but contends that the claimant’s permanent total disability is not the result of the claimant’s compensable neck injury. In arguing that “ankylosing spondylitis” is the cause of the claimant’s disability, the Dissenting Opinion relies on excerpted portions of Dr. Leonard’s deposition. The Full Commission again notes that there is no evidence of any spondylitic, degenerative, or arthritic condition prior to the claimant’s compensable injury and resulting surgeries. Dr. Richard Peek diagnosed “ankylosing spondylitis” in 1999, many years after the compensable injury. It is true that Dr. Leonard diagnosed “inflammatory spondylitis” when he first began treating the claimant in January, 2000. However, Dr. Leonard also diagnosed “status-post cervical laminectomy/fusion times two with poor results with persistent radicular pain.”
Even if the Full Commission interpreted from Dr. Leonard’s subsequent testimony that Dr. Leonard felt “ankylosing spondylitis” was the cause of the claimant’s permanent and total disability, we note that Dr. Leonard admitted at deposition that he had not reviewed all of the claimant’s medical records. In fact, Dr. Leonard was not even aware, prior to deposition, that the claimant had sustained a compensable injury. The Commission is entitled to review the basis for a doctor’s opinion in deciding the weight and credibility of the opinion and medical evidence.Maverick Transp. v. Buzzard, 69 Ark. App. 128, 10 S.W.3d 467 (2000). From the record before us, the Full Commission attaches no weight to any determination from Dr. Leonard’s testimony that “ankylosing spondylitis” was the cause of the claimant’s permanent total disability.
In addition, it is the Commission’s exclusive function to determine credibility of witnesses and the weight to be given their testimony.Johnson v. Riceland Foods, 47 Ark. App. 71, 884 S.W.2d 626 (1994). The Commission may not arbitrarily disregard the testimony of any witness.Crow v. Weyerhaeuser Co., 46 Ark. App. 295, 880 S.W.2d 320 (1994). The Full Commission finds the instant claimant to be credible, and we attach significant weight to his testimony, “the neck is the reason I’m not working today. If I had a good neck I would be working.” The decision of the administrative law judge is affirmed.
Based on our de novo review of the entire record, the Full Commission finds that the claimant has been rendered permanently and totally disabled as a result of his compensable injury, and that the claimant is permanently and totally disabled under the odd-lot doctrine. The Full Commission finds that Respondent No. 1 is not liable for the claim, and that the Second Injury Fund is not liable. We also find that medications prescribed by Dr. Riddle are reasonable, necessary, and the responsibility of Respondent No. 1. The Full Commission therefore affirms in its entirety the opinion of the administrative law judge. 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, the 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).
IT IS SO ORDERED.
______________________________ ELDON F. COFFMAN, Chairman
______________________________ SHELBY W. TURNER, Commissioner
Commissioner Wilson dissents.
DISSENTING OPINION
MIKE WILSON, Commissioner
I respectfully dissent from the majority opinion finding that the claimant is permanently and totally disabled as a result of his April 14, 1987, injury. Based upon my de novo review of the record, I find that the claimant has failed to meet his burden of proof.
The majority has found that the claimant is permanently and totally disabled under the odd-lot doctrine. Since the claimant’s injury occurred prior to 1993, the odd-lot doctrine is applicable to the facts of this case. However, my review of the evidence indicates that the claimant is not permanently and totally disabled as a result of his April 14, 1987, injury. The medical evidence indicates that the claimant is suffering from ankylosing spondylitis. Ankylosing spondylitis is a chronic inflammatory disease that affects the joints between the vertebrae of the spine and the joints between the spine and the pelvis. It eventually causes the affected vertebrae to fuse or grow together. The specific cause of this disease is unknown, but research has indicated that genetic factors play a role in it.
Clearly, the claimant’s compensable injury of April 14, 1987, was not the result of his ankylosing spondylitis. The ankylosing spondylitis is the cause of the claimant’s permanent and total disability. The claimant’s current problems are clearly caused by the ankylosing spondylitis, as demonstrated by the deposition testimony of Dr. Donald G. Leonard who stated:
Q. What I need to know in the question of your patient, Mr. Mark Rouse, you have written a medical history, you’ve talked with him, you’ve treated him. I believe you’ve indicated to us that his AS condition started in his sacroiliac joint and worked its way up?
A. It always does.
Q. All right, sir. So, if he had surgeries in his cervical area, would you really be able to tie any kind of causal connection between the surgeries he had in the cervical area, which is on the other end of the spinal column, to the AS condition that you say originated at the other end of the spine?
Q. I can in that any type of emotional or physical stress like surgery will tend to flare up the disease in general. When you operate on these people, they don’t do worth a damn in plain speaking.
A. They don’t all get AS. They just get — they just get worse.
Q. All right, sir.
A. Their basic condition is worsened.
Q. To any sort of accurate degree of medical certainty, can you say that because he had surgeries to his cervical area that he was destined to get this AS condition that you’re now treating?
A. No, the surgery doesn’t bring it on.
Q. All right, sir. So, would you then not feel comfortable about tying the two together from a causal connection standpoint in this particular individual?
A. No, they’re not related.
Q. Okay. Thank you.
A. Surgery doesn’t bring it on. The disease brings on the surgery, if you will, vis-a-vis or something like that.
Dr. Leonard also described ankylosing spondylitis as a “systemic disease,” meaning that it affects more than just the spine. Dr. Leonard stated:
“It makes you feel bad. You get fatigued, you get tired, you get anemic. It’s just a lousy disease. It affects more than just the joints is your answer.”
Dr. Leonard has opined that the claimant is 100% unemployable, but this is due to his disease, not due to his compensable injury.
In the case of Goodwin v. Phillips Petroleum, 71 Ark. App. ___ ___ S.W.3d ___ (2001), the Arkansas Court of Appeals stated:
The odd-lot doctrine provides benefits for an employee who is injured to the extent that he can only perform services that are so limited in quality, dependability, or quantity that a reasonable stable market for them does not exist and he may be classified as totally disabled; a claimant must make a prima facie showing of being in the odd-lot category based upon factors of permanent impairment, age, mental capacity, education, and training; if the claimant makes such a showing, the employer then has the burden of showing that some kind of suitable work is regularly and continuously available to him. . . . The odd-lot doctrine, which provides benefits for an employee who is injured to the extent that he can only perform services that are so limited that he may be classified as totally disabled, implies a causation element that requires that the injury and not some subsequent and unrelated condition caused the claimant’s inability to perform services.
The holding of this case is clearly on point with the facts of the case presently before us. Without a doubt, the claimant suffers from a debilitating disease that has caused him to be permanently and totally disabled. However, this is not the result of his compensable neck injury. It is blatantly apparent that the unrelated and subsequent condition of ankylosing spondylitis is the cause of the claimant’s inability to perform any work. The respondents should not pay permanent and total benefits that are the result of the claimant’s debilitating disease, not his compensable injury. Therefore, I must respectfully from the majority opinion finding that the claimant is permanently and totally disabled under the odd-lot doctrine.
_______________________________ MIKE WILSON, Commissioner