CLAIM NO. E610120
KENNETH STORMENT, EMPLOYEE, CLAIMANT v. DESIGN CONTRACTORS, INC., EMPLOYER, RESPONDENT and GENERAL ACCIDENT INSURANCE COMPANY, INSURANCE CARRIER, RESPONDENT
Before the Arkansas Workers’ Compensation Commission
OPINION FILED OCTOBER 28, 1998
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by HONORABLE JAMES R. FILYAW, Attorney at Law, Fort Smith, Arkansas.
Respondents represented by HONORABLE BUD ROBERTS, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed as Modified.
[1]
OPINION AND ORDER
[2] The respondents appeal and the claimant cross-appeals an opinion and order filed by the administrative law judge on December 31, 1997. In that opinion and order, the administrative law judge found that the claimant remained entitled to temporary total disability benefits for his April 24, 1996 back injury through October 28, 1997. In addition, the administrative law judge found that the claimant sustained a 10% anatomical impairment as a result of his back injury and surgery, and that claimant has also sustained a 10% impairment to his wage earning capacity in excess of the 10% anatomical impairment caused by the injury and surgery. After conducting a de novo review of the entire record, we find that the decision of the administrative law judge must be affirmed as modified.
I. Background.
[3] The claimant sustained an admittedly compensable low back injury on April 24, 1996, as a result of a lifting incident. The claimant was referred to Dr. Robert Bebout, an orthopedic specialist. The claimant received a lumbar MRI on April 30, 1996, which indicated a central/left paracentral herniated nucleous pulposus at the L5-S1 level. When conservative treatment did not resolve the claimant’s complaints, Dr. Bebout performed a laminotomy and disc excision on the left at the L5-S1 level on June 3, 1996.
[4] In a follow up on June 11, 1996, Dr. Bebout indicated that the wound showed no signs of infection, and that Dr. Bebout planned to keep the claimant off work until the claimant could be re-evaluated at his next appointment in one week, when the surgical staples would be removed. On June 19, 1996, two weeks post-operative from the claimant’s surgery, Dr. Bebout indicated that the claimant’s wound had healed nicely and his staples were removed. The claimant complained of pain in the left lower lumbar area near the incision and indicated that pain occasionally shot down his leg as well. Dr. Bebout prescribed medication and began the claimant on Williams flexion exercises, back extension exercises, hip extension, and a back extension program. On June 24, 1996, Dr. Bebout indicated that he intended to try the claimant on a course of physical therapy, keep him off work and on pain medication for the time being, and re-evaluate the claimant in two weeks. Dr. Bebout also took plain x-ray films which indicated that the claimant had “a spondylolysis at L5 on the right side only, without any significant slip. Flexion and extension films do not show any appreciable motion in this area”. Dr. Bebout indicated that he did not have a good explanation for the claimant’s continued symptoms. In a follow up on July 9, 1996, Dr. Bebout took a history indicating that the claimant “still remains miserable with pain in the buttocks and left lower extremity in the same distribution as before. He has no relief with therapy. His exam remains essentially unchanged. He has some decreased sensation at the L4-5 dermatome in the left lower extremity. Straight-leg raise examination is negative, seated and supine.” Dr. Bebout indicated that the claimant would discontinue therapy since it was not helping, and Dr. Bebout continued the claimant on Elavil at night and ordered a repeat MRI.
[5] A repeat MRI performed on July 15, 1996, indicated an abnormality on the left side at L5-S1 of approximately the same size as the soft tissue density indicated from the pre-operative MRI performed on April 30, 1996. However, the MRI report also cautioned that in the early post-operative period, attempting to discriminate disc material from scar tissue may be difficult and that in the early post-operative back, the findings may be artificially accentuated by components of hemorrhage, edema, etc., which may later resolve.
[6] Dr. Bebout’s office apparently attempted to arrange a consult for the claimant with Dr. Standefer, a neurosurgeon, for August 26, 1996. However, when the claimant was contacted about this potential referral on July 31, 1996, the claimant became upset at the length of the delay necessary for the claimant to see another specialist, and the claimant was also upset because Dr. Bebout’s office had refused to provide the claimant with narcotics. Apparently, Dr. Bebout’s office then scheduled the claimant for a consult with Dr. Reynold, a neurosurgeon, but the respondents arranged for the claimant to be referred to Dr. Vincent B. Runnels, a neurosurgeon, on August 9, 1996.
[7] In his letter report of an August 9, 1996 evaluation, Dr. Runnels took a history that the claimant sustained a work-related injury, that a MRI followed, and that the claimant was ultimately diagnosed with a herniated disc, for which he ultimately underwent surgery. Dr. Runnels noted that the claimant had tried exercises, water therapy, etc. Dr. Runnels also noted that the claimant did not have a back brace, that the claimant was not doing any back exercises, and that the claimant did not seem to know how to do proper back exercises very well. Dr. Runnels opined that, in his opinion, the claimant’s problem all along has been instability from a grade 1 spondylolisthesis at L5-S1 secondary to a congenital pars defect. Dr. Runnels opined that the claimant would sustain a 7% permanent disability to the body as a whole if the claimant did not undergo further surgery. Dr. Runnels opined that he did not believe that the claimant ever had a work related herniated disc to begin with, but that the claimant most likely had aggravated a preexisting spondylolisthesis condition by his work related injury. Dr. Runnels suggested that the claimant’s spondylolisthesis symptoms might well have been resolved with non-operative therapy, such as epidural steroids, back exercises, etc. Dr. Runnels recommended that the claimant receive a shot of Depo-Medrol, soak his back in hot water twice a day, do his exercises, and receive a back supporter.
[8] In a follow-up note dated August 15, 1996, Dr. Bebout indicated that he would continue the claimant on medication, try lumbar epidural steroid injections, and bracing. The claimant apparently received three lumbar epidural steroid injections performed by Dr. Charles Little, beginning on August 27, 1996. In a follow-up note dated October 1, 1996, Dr. Bebout indicated that the claimant had had three LESI’s, that two of the shots made him feel better, but one did not, that the claimant experienced only temporary relief for approximately a week, and that the claimant was complaining of pain in the lower lumbar area, left SI joint area, throbbing in both legs into the calf, left leg worse than the right. Dr. Bebout also indicated that the claimant had been prescribed a lumbar support that the claimant did not like and was not wearing, and that the claimant had been prescribed an exercise program for his lumbar spine which the claimant was not performing because he considered the exercises too uncomfortable. Dr. Bebout also indicated that he would change the claimant’s medication to Flexeril, Elavil and Lodine. Notably, in a follow-up note dated October 9, 1996, Dr. Bebout indicated that he had nothing else to offer the claimant. Dr. Bebout’s note indicates that the claimant was requesting an evaluation from Dr. Standefer. Dr. Bebout indicated that the claimant would continue to follow up with Dr. Bebout after the claimant had received an evaluation from Dr. Standefer. The record also contains a “Physician’s Status Report” prepared by Dr. Bebout dated October 29, 1996, which indicates that the claimant could return to work with limited duty with the limitations of no pulling or pushing over five pounds, and no lifting over five pounds.
[9] Dr. Standefer initially evaluated the claimant on December 5, 1996. Dr. Standefer indicated that the claimant’s range of motion about his lumbar spine was quite full in virtually all planes of movement, although there was pain associated with each plane of motion. Dr. Standefer indicated that the claimant’s gait was normal, that the claimant had a negative straight-leg raising bilaterally, and that there was no focal motor deficit noted during the examination. Dr. Standefer also indicated that sensory examination was normal with respect to pin and touch as well as vibratory sense. Dr. Standefer suggested that the claimant receive another MRI scan, as well as CBC and sed rate, as well as a bone scan for follow up. In a report dated December 12, 1996, Dr. Standefer indicated that there was no evidence of any post-operative infection, that the most recent MRI indicated residual focal disc protrusion at L5-S1, but that this protrusion exhibited minimal to no compressive effect on the passing S1 root or thecal sac, which Dr. Standefer considered not to be a surgical abnormality. Dr. Standefer opined that it appeared the claimant was symptomatic from spondylolisthesis and associated spondylolysis, but indicated that he would favor a conservative treatment approach, including a lumbar hyperextension brace with rigid stays and a vigorous physical therapy program.
[10] In his last follow-up report from February 11, 1997, Dr. Standefer indicated that the claimant had worn his brace and found that the brace helped the claimant on some days, but not on other days. The claimant also indicated that some of the exercises employed at physical therapy tended to aggravate his pain, and that the claimant did not attend many of these physical therapy sessions because of escalating pain with exercise. Dr. Standefer indicated that he did not believe that the claimant was a candidate for surgical intervention at that juncture, that utilization of analgesic medication and muscle relaxants in concert with caution towards lifting and bending was an appropriate course to treat the claimant, and that the claimant was released from the clinic as of that date to follow up with his family physician.
[11] In a follow-up report from April 11, 1997, Dr. Bebout noted that the claimant was presently unemployed and not working, that Dr. Bebout had not yet seen the claimant’s most recent scans performed at the request of Dr. Standefer, and that Dr. Bebout would continue conservative care with the claimant through medication. In a follow-up note dated June 10, 1997, Dr. Bebout indicated that he would continue to treat the claimant conservatively with medication, use of a TENS unit, and a back brace. Dr. Bebout indicated that if he did not see any progress, that he would consider fusion of the claimant’s spine in the future since the claimant “is fairly debilitated and cannot really do any work, especially manual labor, which is all the work he has done.” Dr. Bebout also filled out another “Physician’s Status Report” dated June 10, 1997, which indicated that the claimant was “off work”. In a follow-up report dated August 26, 1997, Dr. Bebout indicated that the claimant continued to experience chronic low back pain with radiation into both lower extremities at times, that the claimant received some relief using a back corset and that the claimant continued to use medication. Dr. Bebout indicated that he would continue to prescribe the claimant medication as well as a new back brace, and opined that the claimant would likely require fusion of the lower lumbar spine, but that the claimant was reluctant to have any surgery at that time. Dr. Bebout indicated that he would follow the claimant up in another three to four months for routine evaluation.
[12] The record contains two other important documents, one from Dr. Standefer, and one from Dr. Bebout. In a June 4, 1997 letter addressed to the claimant’s attorney, Dr. Standefer indicated that he would advise the claimant to avoid any heavy lifting (no more than 35 to 45 pounds and only then on occasion) and to also avoid repetitive bending in the future. In addition, Dr. Standefer indicated that the claimant had sustained a 10% permanent impairment rating to the body as a whole. In a letter to the claimant’s attorney dated November 12, 1997, Dr. Bebout indicated that he most recently saw the claimant on October 28, 1997, that the claimant had remained essentially unchanged over the last several visits, and that the claimant experienced chronic residual back pain with occasional radiation into the extremities bilaterally. Dr. Bebout indicated that, neurologically, the claimant remained intact and stable, that the claimant’s initial injury and surgery “has certainly reached the point of maximum improvement”, and that the claimant may require fusion surgery at some point in the future. Dr. Bebout also indicated that he would agree with a permanent impairment rating of 10% according to the Fourth Edition of the AMA Guidelines for the Evaluation ofPermanent Impairment.
II. ADDITIONAL TTD.
[13] Since the claimant’s injury occurred after July 1, 1993, the provisions of Act 796 of 1993 are applicable to this claim. However, Act 796 did not change the basic law regarding temporary total disability compensation. In this regard, temporary disability is determined by the extent to which a compensable injury has affected the claimant’s ability to earn a livelihood. An injured employee is entitled to temporary total disability compensation during the period of time that he is within his healing period and totally incapacitated to earn wages. ArkansasState Highway and Transportation Department v. Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981). An injured employee is entitled to temporary partial disability compensation during the period that he is within his healing period and suffers only a decrease in his capacity to earn the wages that he was receiving at the time of the injury. Id. The “healing period” is defined as the period necessary for the healing of an injury resulting from an accident. Ark. Code Ann. § 11-9-102(13) (Repl. 1996). The healing period continues until the employee is as far restored as the permanent character of his injury will permit. When the underlying condition causing the disability becomes stable and when nothing further will improve that condition, the healing period has ended, and the claimant is no longer entitled to receive temporary total disability compensation or temporary partial disability compensation, regardless of his physical capabilities. Moreover, the persistence of pain is not sufficient in itself to extend the healing period or to find that the claimant is totally incapacitated from earning wages. Mad Butcher, Inc. v. Parker, 4 Ark. App. 124, 628 S.W.2d 582 (1982).
[14] In the present case, the respondents terminated the claimant’s temporary total disability benefits on August 9, 1996, when Dr. Runnels indicated that the claimant would sustain a 7% impairment rating, and the respondents assert that the claimant’s healing period ended as of August 9, 1996, when Dr. Runnels assigned the claimant an impairment rating. We note that by August 9, 1996, the claimant had already received his laminotomy surgery and had also already undergone a significant amount of rest, medication, and treatment intended to relieve the long-term effects of his injury and surgery performed on June 3, 1996. However, we also note that Dr. Runnel’s August 9, 1996 report, didnot specifically state that the claimant’s healing period for his disc herniation or for his spondylolisthesis aggravation had actually ended by the time that Dr. Runnels saw the claimant on August 9, 1996. In addition, we note that Dr. Runnels suggested that the claimant’s spondylolisthesis aggravation might well subside with additional non-operative therapy, including injections, back exercises, etc., and we note that the claimant was, in fact, later referred by Dr. Bebout (after Dr. Runnel’s evaluation on August 9, 1996) for lumbar epidural steroid injections (LESIs). Since we understand that the LESIs ordered by Dr. Bebout were intended to improve or resolve the claimant’s spondylolisthesis aggravation diagnosed by Dr. Runnels, we find that the claimant’s condition was not as far restored as the permanent nature of his injury would permit by August 9, 1996.
[15] Instead, we find that the greater weight of the evidence in the record indicates that the claimant’s healing period for both his disc herniation surgery and his spondylolisthesis aggravation occurred on October 29, 1996, by which time Dr. Bebout had (1) referred the claimant out for lumbar epidural steroid injections, had (2) indicated that he had nothing else to offer the claimant and had (3) released the claimant to light duty. Moreover, our review of the medical evidence cited above indicates all of the treatment that Dr. Standefer and Dr. Bebout offered the claimant after October 29, 1996, was either diagnostic in nature or duplicative of treatment that the claimant had already received prior to October 29, 1996, and none of this duplicative treatment ever apparently further improved the claimant’s condition. Specifically, we note that Dr. Standefer’s subsequent CBC and sed rate testing, and the lumbar films and follow-up lumbar MRI, did not indicate any new treatable abnormality or lead to any new treatment modalities that the claimant had not already received to improve the permanent nature of his injury prior to October 29, 1996. Likewise, Dr. Standefer’s February 11, 1997, note indicates that the claimant advised Dr. Standefer that the brace and physical therapy prescribed by Dr. Standefer had not improved his condition, and we note that the claimant had also received a brace and therapy (to no apparent effect) prior to October 29, 1996.
[16] Finally, since the claimant’s first release to return to work from Dr. Bebout came on October 29, 1996; consequently, we also find that the claimant proved by a preponderance of the evidence that he was totally incapacitated from work through October 29, 1996. Consequently, for the reasons discussed herein, we find that the claimant proved by a preponderance of the evidence that he is entitled to additional temporary total disability compensation through October 29, 1996.
III. ANATOMICAL IMPAIRMENT RATING.
[17] None of the physician reports in the record indicate how each physician applied the AMA Guides to the Evaluation of PermanentImpairment in this case to assign the claimant either a 7% impairment rating or a 10% impairment rating. Table 75 of the AMAGuides, on page 3/113, indicates that a surgically treated disc lesion without residual signs or symptoms equates to an 8% anatomical impairment rating. In addition, a surgically treated disc lesion with residual medically documented pain and rigidity equates to a 10% anatomical impairment rating. As regards the claimant’s herniated disc and disc surgery, we cannot find anyobjective findings of post-surgical symptoms in the record (i.e. muscle spasm, etc.) to support a finding of post-surgical “pain and rigidity”. Consequently, we find that the greater weight of the evidence establishes that the claimant has sustained an 8% impairment to the whole body as a result of his admittedly compensable disc injury and surgery, and we find that the claimant’s work-related injury was the major cause of the claimant’s disability and need for medical treatment.
[18] In reaching our decision, we note that Table 75 at page 3/113, also assigns a 7% impairment to the body as a whole, for a grade l spondylolisthesis in the lumbar spine. Perhaps it is on this basis that Dr. Runnels assigned the claimant a 7% anatomical impairment rating. However, Dr. Runnels, also opined that the claimant’s L5-S1 spondylolisthesis preexisted the claimant’s injury. Consequently, we find that the claimant has failed to establish by a preponderance of the evidence that his work-related injury was the major cause of this condition.
IV. WAGE LOSS.
[19] In determining wage loss disability, the Commission may take into consideration the claimant’s age, education, work experience, medical evidence and any other matters which may reasonably be expected to affect the worker’s future earning capacity. Such other factors are motivation, post-injury income, credibility, demeanor, and a multiplicity 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).
[20] In the present case, the claimant has a very minimal education (7th grade), and his prior work experience is in manual labor. Consequently, the claimant has relatively few transferrable job skills. However, the claimant is also relatively young at 34 years of age. The claimant has apparently made no attempt to return to work, and does not have an intention to do so, in light of his assertion that he is permanently and totally disabled.
[21] As regards the claimant’s permanent medical restrictions for work, we note that Dr. Runnels’ June 10, 1997 office note seemed to anticipate a very poor prognosis for the claimant returning to work, stating that the claimant is “fairly debilitated and cannot really do any work, especially manual labor, which is all the work he has done.” However, Dr. Standefer, who had most recently ordered significant additional diagnostic testing, and followed the claimant for the period discussed earlier in 1997, indicated in a letter dated June 4, 1997, that the claimant’s restrictions as regard work would be to avoid heavy lifting (35 to 45 pounds, and only then on occasion), and avoid repetitive bending. Dr. Standefer’s work limitations appear to be significantly less restrictive than Dr. Bebout’s prognosis made at nearly the same time. After considering the claimant’s relatively young age, his limited education and work experience, the nature and extent of his compensable herniated disc injury and surgery, the physical limitations imposed on the claimant as a result of that injury and surgery, and all other relevant factors, we find that the claimant has sustained a 20% impairment to his wage-earning capacity attributable to his herniated disc and 8% anatomical impairment resulting from that injury.
[22] Therefore, after conducting a de novo review of the entire record, and for the reasons discussed herein, we find that the preponderance of the evidence establishes that the claimant is entitled to additional temporary total disability compensation through October 29, 1996, and that the claimant sustained an 8% anatomical impairment as a result of his work related herniated disc and surgery. In addition, we find that the claimant sustained a 20% impairment to his wage earning capacity attributable to his herniated disc and 8% impairment rating. Therefore, we find that the administrative law judge’s decision must be affirmed as modified.
[23] 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 in part 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)
[24] IT IS SO ORDERED.
ELDON F. COFFMAN, Chairman
[25] Commissioner Humphrey concurs in part and dissents in part.
[26]
CONCURRING AND DISSENTING OPINION
[27] I concur in part and respectfully dissent in part from the majority opinion. I concur in the finding that claimant’s healing period ended on October 29, 1996. However, I respectfully dissent from the findings that claimant’s permanent anatomical impairment totals only 8% to the whole body, and that he is not permanently and totally disabled.
[28] On April 24, 1996, claimant sustained an admittedly compensable back injury as he was moving a welder. He testified that he performed several manual labor jobs for respondents; however, he mostly worked driving trucks. After receiving treatment at a walk-in clinic, claimant was referred to Dr. Robert Bebout. Dr. Bebout determined that claimant had a herniated disc, and he performed a laminectomy on June 3, 1996.
[29] There was no cessation of claimant’s pain following surgery. He testified that he continued to see Dr. Bebout. A second opinion examination was performed by Dr. Runnels. Dr. Runnels assigned an impairment rating of 7% on August 9, 1996. Respondents ceased temporary total disability benefits based on the assignment of an impairment rating by Dr. Runnels. Claimant’s benefits were converted to permanent partial disability benefits, and he was paid in accordance with Dr. Runnels’ rating.
[30] Dr. Runnels opined that claimant’s continued complaints were due to spondylolisthesis. He indicated that although this condition was not work-related, it was aggravated by claimant’s work-related injury. Dr. Standefer concurred with Dr. Runnels with respect to the origin of claimant’s complaints. Moreover, he opined that conservative treatment was appropriate. After being released by Dr. Standefer, claimant continued to be treated by Dr. Bebout. In June of 1997, Dr. Bebout opined that claimant was incapable of working.
[31] Regarding the appropriate permanent anatomical impairment rating, it is my view that the opinions of Drs. Bebout and Standefer are entitled to great weight. These physicians, both of whom had the opportunity to examine claimant on numerous occasions, opined that he is entitled to an impairment rating of 10%. On the other hand, Dr. Runnels examined claimant only once for an independent medical examination. Thus, his opinion is not as persuasive on the issue of permanent anatomical impairment. Accordingly, I would award benefits for an impairment rating of 10% to the whole body.
[32] In my opinion, claimant is permanently and totally disabled. Claimant has a 7th grade education. His ability to read and write is limited. Claimant’s comprehension of newspaper articles necessitates multiple readings. He has no skills which are marketable or transferable. Claimant suffers from chronic pain, and additional surgery has not been ruled out. Indeed, when Dr. Runnels examined claimant, he suggested one option would be to perform “a decompressive laminectomy and undercut the facets medially and then do a Rogo rod pedicle screws and lateral fusion . . . and place in a body cast for six months.” Also, when Dr. Bebout indicated that claimant had reached the end of his healing period, he stated that “effusion of the area L5-S2 would not be inappropriate. . . .” He is unable to return to manual labor based upon the restrictions imposed by his physicians with respect to bending, lifting, and overhead work. Claimant testified that he must change positions frequently. At the hearing, he speculated
that he might be able to perform desk work. However, he added that he must change positions frequently. In my opinion, “desk work” is clearly unrealistic given claimant’s functional illiteracy.
[33] For the reasons stated herein, I concur in part and respectfully dissent in part from the majority opinion.
[34] PAT WEST HUMPHREY, Commissioner
[35] Commissioner Wilson concurs in part and dissents in part.
[36]
CONCURRING DISSENTING OPINION
[37] I concur in the majority’s opinion finding that claimant’s healing period ended on October 29, 1996. In addition, I concur with the majority’s opinion finding that the claimant’s anatomical impairment rating should be 8%. I also agree with the majority’s finding that the claimant has failed to prove by a preponderance of the evidence that his work-related injury was the major cause of his spondylolisthesis condition. However, I must respectfully dissent from the majority’s finding that the claimant is entitled to wage loss benefits in the amount of 20%. In my opinion, the claimant has failed to prove that he is entitled to any wage loss benefits. The claimant is 34 years old and testified that he drove trucks and did other things while he was employed by the respondent. The claimant can read and write and even attended mechanics classes at West Ark Junior College. The claimant has used this training while employed by various salvage yards and Crawford County Ford. The claimant also stated that others had noticed his carpentry skills.
[38] Therefore, for all the reasons stated herein, I respectfully concur in part and dissent in part.
[39] MIKE WILSON, Commissioner
