SAPP v. PHELPS TRUCKING, INC., 1997 AWCC 410

CLAIM NO. E319634

FRANKIE SAPP, EMPLOYEE, CLAIMANT v. PHELPS TRUCKING, INC., EMPLOYER, RESPONDENT and CONTINENTAL LOSS ADJUSTING, CARRIER, RESPONDENT

Before the Arkansas Workers’ Compensation Commission
OPINION FILED NOVEMBER 13, 1997

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

Claimant represented by DENVER L. THORNTON, Attorney at Law, El Dorado, Arkansas.

Respondent represented by THOMAS J. DIAZ, Attorney at Law, Little Rock, Arkansas.

Decision of Administrative Law Judge: Affirmed.

[1] OPINION AND ORDER
[2] Claimant appeals from a decision of the Administrative Law Judge filed March 14, 1997 finding that claimant has failed to prove by a preponderance of the evidence entitlement to additional permanent partial disability benefits over and above the 5% physical impairment rating to claimant’s lumbar spine. Based upon our de novo review of the entire record, we find that claimant has failed to meet his burden of proof.

[3] Claimant sustained an admittedly compensable injury on November 17, 1993, when a tree fell on him. Claimant described the incident, stating that the top of the tree hit him unexpectedly. Claimant has received temporary total disability benefits, medical benefits, and permanent partial disability benefits for a 5% impairment rating to his lumbar spine. At the hearing held on July 18, 1996, the sole issue was claimant’s entitlement to additional permanent partial disability benefits in excess of his physical impairment rating. After reviewing the evidence impartially, and without giving the benefit of the doubt to either party, we find that claimant has failed to prove entitlement to such benefits. [4] Although claimant alleges he sustained some type of epileptic or seizure disorder as a result of the compensable injury, the objective medical evidence of record does not substantiate such a finding. It is this alleged seizure disorder which claimant relies upon to bolster a claim for wage loss disability. Although Dr. Shailesh Vora assigned claimant a 25% physical impairment rating for this seizure disorder, there are no objective medical findings to substantiate this rating. It is specifically noted that Dr. Reginald Rutherford, who performed an independent medical evaluation of the claimant testified in his deposition that there were no objective findings for the alleged epilepsy diagnosis nor to support a 25% physical impairment rating. Consequently, all we have with regard to a physical impairment rating for this claimant is a 5% rating to the claimant’s lumbar spine. While Dr. Rutherford testified that he did not find any objective findings to substantiate this rating, respondent accepted the 5% rating as compensable and has paid the rating in full. [5] In determining wage loss disability, the Commission may take into consideration the workers’ age, education, work experience, medical evidence and any other matters which may reasonably be expected to affect the workers’ future earning power. Such other matters are motivation, post-injury income, credibility, demeanor, and a multitude of other factors. 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. Franklin Electric, 32 Ark. App. 168, 798 S.W.2d 130 (1990). A claimant’s lack of interest in pursuing employment with her employer and negative attitude in looking for work are impediments to our full assessment of wage loss. [6] After observing the claimant’s demeanor and listening to his testimony, the Administrative Law Judge concluded that the claimant was not a credible witness. Likewise, after reviewing the record we cannot find that claimant has presented credible testimony that he is entitled to any additional benefits over and above the 5% physical impairment rating previously paid. Claimant testified that he is currently unable to work; however, the record indicates that claimant worked for at least six months after being released by Dr. Vora once his workers’ compensation benefits ceased. Claimant worked in the log woods driving a skidder, a job he described as the easiest job in the log woods. Claimant continued in his occupation as a skidder driver until he was laid off by his employer. Although claimant testified that his employer laid him off due to his compensable injury, the record does not substantiate claimant’s testimony. In fact, the record indicates that his new employer was aware of the accident and injury prior to hiring claimant since the new employer is the person who actually came upon claimant in the woods after the accident. Claimant testified that he was capable of working as a skidder driver and he implied that he would have continued working in that occupation if he had not been laid off by his employer. It was not claimant’s decision to cease work, rather his employer’s. Moreover, the record indicates that claimant drew unemployment benefits after he was laid off. This fact implies that claimant held himself out as being physically capable of working, further bolstering our impression of his testimony that claimant was capable of working, and would be working, but for the fact that his employer laid him off. [7] The record reflects that claimant has done nothing in the way of securing further employment. Although claimant characterized himself as “I ain’t no sorry man,” he demonstrated a lack of motivation in returning to work or seeking further employment. If claimant can draw workers’ compensation benefits, unemployment benefits, or other such aid, claimant has no motivation to return to work. In short, claimant’s ability to return to work for a six or seven month period, his negative attitude in securing or searching for further employment after being laid off work, and his relatively minor physical impairment rating for his lumbar injury with no work restrictions other than to refrain from heavy lifting convince us that claimant has failed to prove that he has suffered a decrease in his ability to earn wages. In our opinion, the only thing keeping claimant from returning to work is claimant himself. Therefore, we affirm the decision of the Administrative Law Judge. [8] IT IS SO ORDERED.

ELDON F. COFFMAN, Chairman MIKE WILSON, Commissioner

[9] Commissioner Humphrey dissents.

[10] DISSENTING OPINION
[11] I must respectfully dissent from the majority opinion finding that claimant is not entitled to wage loss disability benefits in excess of his 5% permanent anatomical impairment rating.

[12] Claimant, a logger, sustained a compensable injury on November 17, 1993, when a tree which he had cut fell on him. Though initial diagnostics appeared relatively normal, a lumbar MRI performed on December 3, 1993, revealed “evidence for a mild central disc herniation of L3-4 with encroachment on the thecal sac.” Claimant thereafter received orthopedic care from Dr. D’Orsay Bryant, as well as a hearing loss evaluation from Dr. Shailesh C. Vora, an El Dorado neurologist/psychiatrist. Dr. Vora recorded the following presentation of symptoms on April 21, 1994:

Mr. Sapp is a 49 year old, right handed, black male who stated that he has been having low back pain and middle back pain since November 17, 1993 . . . Since then he is complaining of headache which is bilateral frontal temporal pain without nausea, vomiting, aura, photophobia, or photophonia. The pain is on the top of the head as well and pain in the neck too. He has been having pain in between the shoulder blades as well as low back. He has difficulty walking as the pain goes down in the legs as well . . . Recently he had a spell when he got confused, got lost, was going the wrong way and he says he does not remember anything about this spell.

[13] In response to claimant’s description of having experienced a “spell,” Dr. Vora recommended “seizure precaution” which, in effect, restricted claimant from such activities as driving or operating heavy machinery. Dr. Vora maintained this restriction as late as August 15, 1994, the date on which he released claimant from his care with a 25% permanent impairment rating for “epilepsy” and a 5% permanent impairment relating to claimant’s lumbar disc abnormality. [14] Claimant subsequently presented to Dr. Reginald Rutherford for an independent medical exam. Dr. Rutherford indicated that claimant’s brain scans revealed no evidence of epilepsy, and went on to state that:

In Mr. Sapp’s situation, as of when I saw him, he was not taking any medication. He told me he hadn’t had any spells in over a year. And the diagnosis of epilepsy, in my opinion, was never confirmed, and I think it is highly speculative that Mr. Sapp, in fact, suffers from epilepsy. So, I don’t know how one would come up with, you know, 25 percent. Certainly as to when I saw him, I think that is without objective basis.

[15] I would point out that Dr. Rutherford examined claimant only one time, and frankly admitted during his deposition that he took a “conservative” approach to IME evaluations. I would accordingly lend little weight to his opinions. [16] I am persuaded that claimant has sustained significant wage loss. While relatively young (40 years old), claimant possesses absolutely nothing in the way of skills or experience other than his work as a logger. Also, even if the evidence is insufficient to establish that claimant actually suffers from epilepsy, I find from his credible testimony and medical records that he is at least prone to some form of seizure disorder. In fact, Dr. Vora did not even lift the “seizure precaution” limitations at the time of claimant’s release from care. Furthermore, in addition to claimant’s difficulty with seizures, excessive movement aggravates his back pain, as does prolonged standing. Claimant also testified that he “keeps a headache” all the time. [17] Contrary to the majority’s opinion, I am persuaded that claimant’s motivation to return to work is not in question given his credible testimony that:

Well . . . I tried to work. I ain’t no sorry man. I always did work, and after I tried back down there and then it went to hurting me like it did, I didn’t try no more.

[18] Not only does claimant possess the significant physical limitations discussed above, he is unable to read or write and cannot count money. In my opinion, claimant is essentially precluded from returning to logging, and will be hard-pressed to find any type of work other than physical labor. I would thus find that claimant has sustained a wage loss disability of at least 30%. I would further find that claimant’s compensable injury is the “major cause” of this disability, since claimant appears to have suffered from no physical limitations or seizures prior to the injury of November 17, 1993. [19] As set out above, I respectfully dissent from the majority opinion. [20] PAT WEST HUMPHREY, Commissioner