CLAIM NO. E116577
A.B. WELDON, EMPLOYEE, CLAIMANT v. PIERCE BROTHERS CONSTRUCTION, EMPLOYER, RESPONDENT NO. 1 and EMPLOYERS MUTUAL CASUALTY CO., CARRIER, RESPONDENT NO. 2 and SECOND INJURY FUND, RESPONDENT NO. 2 Before the Arkansas Workers’ Compensation Commission
OPINION FILED APRIL 13, 1995
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by JAMES F. LANE, Attorney at Law, Little Rock, Arkansas.
Respondent No. 1 represented by JIM TILLEY, Attorney at Law, Little Rock, Arkansas.
Respondent No. 2 represented by MARK E. LONG, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Reversed.
[1] OPINION AND ORDER
[2] This matter comes on for review by the Full Commission from the appeal and cross-appeal of respondent No. 2, the Second Injury Fund, and respondent No. 1, Pierce Brothers Construction, respectively, of the decision of the Administrative Law Judge filed on July 6, 1994. After conducting a de novo review of the record, we find that claimant failed to prove by a preponderance of the credible evidence that he is entitled to any additional permanent partial disability benefits. Therefore, we reverse the decision of the Administrative Law Judge.
[3] The Administrative Law Judge held that claimant is entitled to an additional four percent permanent anatomical impairment rating for an overall permanent partial disability of 30 percent and that the Second Injury Fund is liable for the amount of 16 percent. However, this determination is not supported by the preponderance of the evidence. [4] Claimant sustained a work-related motor vehicle accident in August of 1989. He underwent surgery in November of 1990. He was released to return to work with lifting restrictions and a ten percent permanent partial impairment rating. Although claimant contends that he received relief from his leg pain and from his back pain after the surgery, the objective medical findings indicate that claimant continued to complain of back pain after his release from Dr. Ghormley. Furthermore, claimant continued taking pain medication. [5] Claimant contends that he sustained a work-related back injury in 1991. However, a review of the evidence indicates that claimant sustained a recurrence of his 1989 accident and surgery. Testimony was offered that claimant had never been pain free and without back difficulties. In fact, claimant’s housemate, Amy Oldham, testified that claimant’s low back pain had never gone away and his condition had not improved. Furthermore, claimant indicated that after his surgery he was never 100 percent and had restrictions on his lifting. A preponderance of the credible evidence indicates that the alleged incident that occurred in 1991 was a recurrence of the 1989 injury. Thus, the Second Injury Fund is not liable. Furthermore, there is insufficient evidence of an increase disability to hold respondent employer liable of any additional benefits. Therefore, we reverse the decision of the Administrative Law Judge. [6] Furthermore, it should be noted that claimant is presently working. Although claimant contends that he is entitled to wage loss, a review of the evidence indicates that claimant has set himself up to earn less than minimal wage so that he can continue to receive $632 per month in social security benefits. While claimant should be commended for returning to work, claimant should not receive wage loss compensation where he is deliberately contributing to his loss of wage earning capacity. Therefore, we reverse the decision of the Administrative Law Judge. [7] IT IS SO ORDERED.
JAMES W. DANIEL, Chairman ALLYN C. TATUM, Commissioner
[8] Commissioner Humphrey dissents.