Opinion
CLAIM NO. F305863
OPINION FILED FEBRUARY 22, 2006
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the Honorable Eddie H. Walker, Attorney at Law, Fort Smith, Arkansas.
Respondents No. 1 represented by the Honorable Frank B. Newell, Attorney at Law, Little Rock, Arkansas.
Respondent No. 2 was represented by the Honorable Judy Rudd, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed as modified.
OPINION AND ORDER
The claimant appeals and the respondents cross-appeal an administrative law judge's opinion filed March 15, 2005. The administrative law judge found that the claimant sustained wage-loss disability in the amount of 50%. The administrative law judge also found that the respondents had controverted the claimant's entitlement to wage-loss disability in excess of the claimant's permanent physical impairment. After reviewing the entire record de novo, the Full Commission affirms as modified the administrative law judge's opinion. We find that the claimant sustained wage-loss disability in the amount of 25%, and that the respondents controverted the claimant's entitlement to wage-loss disability.
I. HISTORY
William Henry, age 61, testified that he was a high school graduate. The claimant testified that he had been a heavy equipment operator the "biggest part of my life. . . . 35 years, something like that, 40." The claimant testified that he had also worked as a welder, and that this work required manual labor.
The claimant was assessed as having "chronic lumbar pain" in April 2001.
The claimant's testimony indicated that he began working for the respondent-employer in about 2002. "I was an equipment operator," the claimant testified. "I done anything that I was asked to do."
The parties stipulated that the claimant sustained compensable injuries to his back on April 3, 2003. The claimant testified that he was injured from "jarring" which occurred as the result of operating a dozer.
The claimant testified that he returned to work for a time after the compensable injury, but that "I got into so much pain that they first sent me back to work as light duty. They wanted me to go back to work as light duty. But the company didn't — said we don't want him back until he is able to do his normal duties. . . . And so it rocked on then for about another month and they put me back to work and I was driving a dump truck then."
Dr. Barry D. Baskin evaluated the claimant in June 2003 and stated, "I think we can release him back to work on 7/7/03 after he has had some physical therapy."
An MRI of the claimant's lumbar spine was taken on July 9, 2003, with the impression, "1. Foraminal and lateral disc protrusion at L4-5 on the left causing mild displacement of the nerve root posteriorly. 2. Mild disc bulge protruding to foramina on the left at the L3-4."
The claimant was evaluated in the office of Dr. Edward H. Saer on July 22, 2003, at which time the impression was, "1. Sprain/strain in the thoracolumbar area. 2. Disc bulge, L4-5."
The record indicates that Dr. Wayne Bruffett returned the claimant to restricted work on or about July 29, 2003.
The claimant continued to follow up with Dr. Saer, who stated in August 2003, "At this point I still do not think he is able to return to work because he cannot be on his feet for more than a short time without having significant pain."
Dr. Brent Sprinkle evaluated the claimant in September 2003 and arranged a functional capacity evaluation. A Functional Capacity Evaluation was carried out on September 23, 2003, with the following conclusions:
Mr. Henry is able to perform work in the MEDIUM Physical Demand Classification as determined through the Department of Labor for an 8-hour day with the above limitations. When comparing a job description of his position as a Operator/Driver for Duffield Gravel Company with his current functional abilities, he does meet or exceed all the necessary functional requirements of this position. Mr. Henry would benefit from occasional breaks (every 30 minutes), going from sit to stand and stretching after operating jarring equipment. . . .
The claimant continued to treat with Dr. Sprinkle, who stated on October 14, 2003, "clearly he has reached MMI from my perspective. I do not think I have anything else to offer him for his pain. Hopefully, the TENS unit can help while he is working." Dr. Sprinkle indicated on October 20, 2003 that the claimant could "return to work at full duty."
Dr. John L. Wilson examined the claimant in December 2003 and indicated that the claimant could "continue current activities." Dr. Wilson ordered diagnostic testing and arranged conservative treatment for the claimant.
The claimant's testimony indicated that he was taken off work in January 2004. Dr. Wilson performed surgery at L5-S1 on February 16, 2004. The claimant continued to follow up with Dr. Wilson following surgery.
The claimant testified that he had not returned to work following surgery, although he agreed on cross-examination that his back was better after surgery.
Dr. Wilson wrote to CNA Insurance on June 24, 2004:
Mr. Henry returned to our office on June 2, 2004. He relates he is having considerable back pain on any attempt to even mow his yard with a riding lawn mower. His legs are much improved from his pre-operative status but his back continues to give him a great deal of difficulty. I have talked with Mr. Henry at length about going back to work and he feels, and it seems appropriately so, that trying to run heavy equipment or drive heavy trucks is incompatible with his current status. He indicates to me that he intends to apply for his social security and I feel this is probably reasonable.
Examination today reveals restriction of motion of his lumbar spine with mild muscle spasm and mildly positive straight leg raising. . . .
Mr. Hill's (sic) permanent impairment is at least 10% to the body as a whole as a result of his laminectomy and fusion. I do not feel this impairment could be substantially reduced by further therapy or any surgical procedure.
Dr. Wilson signed a W/C Work Status Report on June 24, 2004, which report indicated, "No work, unable to return to work."
The parties stipulated that the claimant's healing period ended on June 24, 2004.
Dr. Wilson informed Connie Prosser on June 28, 2004, "Mr. Henry has reached the end of his healing period. He is unable to return to work. He relates to me he is going to apply for his Social Security, in that he has considerable problems when attempting to drive or sit, which is the primary work that he does."
The parties stipulated that the claimant had a 10% permanent impairment to the body as a whole as a result of his compensable injury. However, the claimant's attorney stated at hearing, "A request for hearing, or an actual claim was filed in this case by Mr. Henry's attorney before any payment regarding permanent disability was even initiated. The first check on permanent disability was not even issued until August 5 of 2004. And — and there had already been an entry of appearance of an attorney and we have stipulated that the healing period ended back in June of '04."
The claimant underwent another Functional Capacity Evaluation on October 8, 2004; the following conclusions resulted: "Mr. Henry demonstrated the ability to perform work at no more than the LIGHT Physical Demand Classification as determined through the Department of Labor for an 8-hour day with the above limitations. Mr. Henry would benefit from work at waist level and a work position that allows him to go from sit to stand at will and also a position that limited the degree of work required below waist level."
A pre-hearing conference was held on October 28, 2004, and a pre-hearing order was filed on November 2, 2004. The claimant contended that he was entitled to "permanent disability benefits greatly in excess of his impairment rating." The claimant contended that his attorney was entitled to "an appropriate attorney's fee."
Respondent No. 1 contended that the claimant "has sustained wage loss disability. Counsel for claimant has made no specific claim with regard to the extent of wage loss disability nor has a demand for payment of wage loss disability been submitted to respondents. Respondents have not controverted this claim. Respondents deny liability for an attorney's fee."
The respondents' attorney wrote to the claimant's attorney on November 2, 2004:
I'm writing to let you know that my client will accept liability for a 25% wage loss disability in this case. My client's position continues to be that it has controverted no part of this claim except entitlement to wage loss disability benefits in excess of those payable for a 25% rating to the body as a whole.
The claimant was deposed on November 3, 2004. (The record does not include claimant's deposition.)
The respondents' attorney wrote to the administrative law judge on November 8, 2004:
I've received Your Honor's November 2 prehearing order and am writing to ask that the order be supplemented to reflect that on November 2, 2004 respondents accepted liability for a 25% wage loss disability award. It is Respondent No. 1's position that it has not controverted claimant's claim for permanent physical impairment benefits, not has it controverted claimant's claim for wage loss disability benefits except to the extent that claimant is awarded wage loss benefits in excess of benefits payable for a 25% award.
The administrative law judge replied to the respondents' attorney on November 12, 2004, stating in part, "I recommend that I simply make your November 2 letter to Mr. Walker, your November 8 letter to me and this letter to you (all documents which have been copied to all attorneys) Commission exhibits at the January 12, 2005 hearing."
A hearing was held on January 12, 2005. The administrative law judge stated, "In our Pre-hearing Order, we indicated that the issues here today were going to be the claimant's average weekly wage, which we have resolved; the extent of permanent disability; and attorney's fees. Respondent No. 1 has also raised the issue of controversion of permanent disability."
The following colloquy took place at hearing:
MR. WALKER: [T]hey hadn't even paid any of the impairment until after an attorney was involved in the case, let alone accepted any wage loss. And at the prehearing conference, I specifically asked Mr. Newell whether the respondents were accepting any wage-loss disability, and he indicated that he was not in a position to say at that point. And — and before the deposition was taken, they changed their position, so they certainly can't say that they changed their position due to additional discovery, because that didn't happen. They changed their position for some unknown reason to me. But what we should be able to stipulate to is that at the prehearing conference, the respondent carrier did not accept any liability for any wage loss. Now, is that correct or not, Mr. Newell? Did you accept any liability for wage loss?
MR. NEWELL: That's correct.
MR. WALKER: So no liability for wage loss was accepted until after the prehearing conference, and I don't think there's anything else that we really need to stipulate to. . . . Judge, my recollection is that I filed this claim back in — I initially filed it in June. And then in August, I have a letter to you dated August 3rd of '04 that I faxed to you indicating that the respondents had not initiated payment regarding the 10 percent impairment rating. The very next day the respondents faxed a letter to you with a printout attached to it showing that they had issued a check. And that check was a check dated August 5 of '04 for $1,998.00, representing payment of seven weeks of permanent disability from June 5, '04 until August 12 of '04. And it was after then that we ultimately ended up alleging permanent and total disability and bringing in The Fund. And in the October prehearing conference, Ms. Rudd was in fact a party to that conference. So how one can allege that no demand for wage loss has been made is unclear to me.
JUDGE CHURCHWELL: And I will say as far as I can tell, Mr. Newell, everything he's just said is consistent with the documents in my file. If you see any reason that we need to introduce them, we can.
MR. NEWELL: Well, I think that's correct.
The claimant testified on direct examination:
Q. Do you know of any kind of work that you could do on a regular basis in your present condition?
A. No.
Q. Tell us in your own words without telling us what the doctor has told you, what's wrong with you now? I mean, how — how did this injury and the surgery affect your ability to do things? How are you different now?
A. Well, I'm — in my lower back, I've still got a lot of pain in my lower back. And — and then I have trouble with my hips now, my right hip especially, walking and being on my feet.
Q. How long can you sit without needing to move around? You look like you're leaning on one arm of that chair already?
A. I'm already in pain. And I can sit usually, you know, 30 minutes or so before I get in bad shape. . . .
Q. How much can you — how much weight can you lift without it causing you to get a lot worse than you normally are?
A. Well, I don't really know exactly, you know. 20, 25 pounds maybe. . . .
Q. Was there a period of time after your surgery when your disability payments stopped? Your workers' comp checks, did they stop at some point?
A. Yes, sir.
Q. And did you hire a lawyer?
A. Let's see —
Q. Did you hire me?
A. They stopped one time before I hired you and I called workman's comp state and they called CNA and got it started again. And then you was hired.
And then they shut me off again and I was shut off for a pretty good while and you got it started back. I think that's the letter there.
Q. At some point after you hired me and I filed the claim on your behalf, did you get a check from the insurance company for $1,988.00?
A. Yes, sir. . . .
Q. And do you believe I ought to be paid?
A. Yes, sir.
The administrative law judge found, in pertinent part:
6. The preponderance of the evidence establishes that Mr. Henry has sustained a 50% impairment to his wage earning capacity in excess to the 10% anatomical impairment to the body as a whole established by the medical evidence and accepted by the respondents.
7. The preponderance of the evidence establishes that the claimant's attorney is entitled to a controverted attorney's fee on all permanent disability benefits awarded herein in excess to the 10% anatomical impairment rating accepted and paid by the respondents, as well as a controverted attorney's fee on all prior underpayments of benefits at an incorrect compensation rate.
The claimant appeals and states that the administrative law judge erred in awarding only 50% wage-loss disability. The respondents cross-appeal and state, "1. The law judge erred in finding claimant entitled to benefits in excess of those payable for a 25% permanent partial disability to the body as a whole; and 2. The law judge erred in finding that respondent carrier controverted this claim with regard to permanent disability benefits payable in excess of those payable for the 10% permanent physical impairment rating to the body as a whole."
II. ADJUDICATION
A. Wage Loss
Ark. Code Ann. § 11-9-522(b)(1) provides, "In considering claims for permanent partial disability benefits in excess of the employee's percentage of permanent physical impairment, the Workers' Compensation 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 other matters reasonably expected to affect his or her future earning capacity."
The administrative law judge found in the present matter, "Mr. Henry has sustained a 50% impairment to his wage earning capacity in excess to the 10% anatomical impairment[.]" The Full Commission finds that the claimant sustained wage-loss disability in the amount of 25%. The claimant, who we find was a credible witness, is age 61 and only a high school graduate. The claimant's work history has been almost entirely manual labor. The claimant sustained a compensable injury in April 2003. We recognize that the record shows a limited history of low back problems, but the preponderance of evidence indicates that the claimant's physical problems have been the result of his 2003 compensable injury rather than a pre-existing condition.
The claimant testified that he attempted to perform light duty after the compensable injury, but that the respondent-employer did not have a light duty position available. Neither Dr. Bruffett nor Dr. Saer thought that the claimant could perform full work duty. Dr. Wilson performed a lumbar laminectomy and fusion in February 2004. We recognize that Dr. Wilson opined the claimant could perform "no work" following surgery. Nevertheless, we also note the claimant's testimony that his back condition improved following surgery. A post-surgical Functional Capacity Evaluation was carried out in October 2004. The results of this evaluation indicated that the claimant could perform light work. The claimant did not prove that he was permanently and totally disabled. However, the Full Commission finds that the claimant proved he sustained wage-loss disability in the amount of 25%. We therefore affirm as modified the opinion of the administrative law judge.
B. Controversion
Ark. Code Ann. § 11-9-715(a)(2)(B) (Repl. 2002) provides that whenever the Commission finds that a claim has been controverted, in whole or in part, the Commission shall direct that fees for legal services be paid to the claimant's attorney. One of the purposes of the attorney's fee statute is to put the economic burden of litigation on the party who makes litigation necessary. Brass v. Weller, 23 Ark. App. 193, 745 S.W.2d 647 (1998). Whether or not a particular claim is controverted is a question of fact for the Commission. Aluminum Co. of America v. Henning, 260 Ark. 699, 543 S.W.2d 480 (1976). The mere fact that a party investigates a claim prior to admitting liability does not require a finding of controversion. Stucco, Inc. v. Rose, 52 Ark. App. 42, 914 S.W.2d 767 (1996).
The administrative law judge found in the present matter that the claimant's attorney was entitled to a controverted attorney's fee "on all permanent disability benefits awarded herein in excess of the 10% anatomical impairment rating accepted and paid by the respondents[.]" The Full Commission affirms this finding. We recognize that the respondents initially accepted compensability of this claim and provided reasonably necessary medical treatment. The parties stipulated that the claimant had sustained a 10% permanent physical impairment after undergoing surgery. Nevertheless, although the 10% anatomical impairment rating was assigned in June 2004, the respondents did not issue a check representing this benefit until August 2004. The claimant's attorney stated at hearing that the claimant did not receive this payment until after the claimant retained legal counsel.
Additionally, the preponderance of evidence indicates that, at the time of the October 2004 pre-hearing conference, the respondents had not yet accepted any responsibility for wage-loss disability exceeding the claimant's permanent physical impairment. The order reflecting the agreement of the pre-hearing conference expressly indicated that the parties would litigate the issue of "the extent of permanent disability." The record in the present matter demonstrates that the respondents necessitated litigation of the claimant's wage-loss disability. The finding of the administrative law judge is affirmed.
Based on our de novo review of the entire record, the Full Commission finds that the claimant proved he was entitled to wage-loss disability in amount of 25%. We find that the respondents controverted the claimant's entitlement to wage-loss disability, so that the claimant's attorney is entitled to a fee for controversion. 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. 2002). For prevailing in part on appeal, the claimant's attorney is entitled to an additional fee of five hundred dollars ($500), pursuant to Ark. Code Ann. § 11-9-715(b)(2) (Repl. 2002).
IT IS SO ORDERED.
_______________________________ OLAN W. REEVES, Chairman
Commissioner Turner concurs in part and dissents in part.
CONCURRING AND DISSENTING OPINION
I must respectfully concur in part and dissent in part from the Majority's opinion. Specifically, I concur with the portion of the decision finding that the respondent controverted the claimant's entitlement to wage loss benefits. However, I must respectfully dissent from the Majority's decision to deny the claimant permanent and total disability benefits and their decision to reduce his entitlement to wage loss benefits.
The claimant sustained admittedly compensable back injuries on April 3, 2003. The claimant indicated that the injuries occurred after he was dozing large amounts of material, consisting of large rocks, dirt, and logs and was jarred as he moved the material. The claimant was initially treated conservatively for his injuries. The claimant was taken off work by a doctor and later released to return to light duty work. The respondent transferred him to work driving a dump truck rather than have him perform light duty work. The claimant was unable to work driving a dump truck and ceased working.
The claimant reported his injuries on the day they occurred. The claimant initially sought treatment with a chiropractor, Dr. Ward. During that time the claimant was restricted from working. Dr. Ward referred the claimant to Dr. Barry Baskin for treatment. Dr. Baskin treated the claimant conservatively with physical therapy but continued his work restriction until July 7, 2003.
On July 9, 2003, an MRI revealed the claimant had foraminal and lateral disc protrusion at level L4-5. It further revealed that the claimant had a mild disc bulge that projected into the left neural foraminal at level L3-4. On July 22, 2003, Dr. Edward Saer referred the claimant for a bone scan to rule out an occult fracture. On August 4, 2003 a bone scan was performed. Dr. Saer opined that it did not reveal any "significant fracture". Dr. Saer also referred the claimant to see Dr. Sprinkle.
On September 10, 2003, Dr. Sprinkle noted that the claimant suffered from a disc bulge at level L4-5 and recommended the claimant submit to a Functional Capacity Examination (FCE). On September 23, 2003, the FCE was performed. The claimant was noted to have given a reliable effort and was restricted to a "Medium" level job. The report also noted his limited ability to continuously stand for more than 25 minutes or to do continuous walking for more than five minutes at a time. On September 29, 2003, the claimant was restricted to light duty work.
The claimant continued to receive medical treatment for his back. On December 25, 2003, Dr. John Wilson indicated that the claimant's MRI revealed a, "laterally placed disc at 5-1. This appears to be impinging on the exit of the L5 root." Dr. Wilson further indicated that the claimant's condition appeared to be acute in nature and scheduled the claimant for a myelogram and a post myelogram CT.
On December 19, 2003, a CT scan showed that the claimant had, "fairly advanced facet hypertrophy at L5-S1." On January 7, 2004, Dr. Wilson recommended that the claimant undergo surgery to treat his condition. On February 16, 2004, the claimant had a laminectomy with bilateral posterolateral fusion at level L5-S1.
On June 24, 2004, Dr. Wilson opined that the claimant had sustained an impairment rating of, "at least 10% to the body as a whole as a result of his laminectomy and fusion." Dr. Wilson further opined that the claimant would not be able to continue to work and that the claimant's decision to apply for social security was, "probably reasonable".
On October 8, 2004, the claimant underwent another FCE. The claimant was noted to have given a, "reliable effort, with 54 of 54 consistency measures within expected limits." The claimant was placed as having the ability to work in no more than a "Light" category job. However, the claimant was noted to have the inability to handle material over 30 pounds, the inability to stoop or bend or to stand for more than 45 minutes. He was also noted to have "slow movement patterns". The FCE noted that the claimant, "would benefit from work at waist level and a work position that allows him to go from sit to stand at will and also a position that limited the degree of work required below waist level."
At the time of the injury the claimant was approximately 58 years old. He had a high school diploma and had performed manual labor for 35 to 40 years. He said he had previous work experience working as a heavy equipment operator and as a welder. Since the time of his surgery, the claimant has not returned to work. The claimant testified that he has difficulty walking and being on his feet. Likewise, he indicated he has difficulty sitting for extended periods of time. The claimant said that if he made a trip of around 75 miles, even if he stopped during the trip, he would be sore and unable to get around for around two days. He further indicated that he takes muscle relaxants and pain pills on an as needed basis.
The Majority finds that the claimant has not sustained wage loss benefits in excess of 25%. The claimant contends that he has been permanently and totally disabled. Alternatively, the claimant argues that he should be entitled to wage loss benefits in excess of the 50% awarded by the Administrative Law Judge. In my opinion, the evidence shows that the claimant has been permanently and totally disabled. Furthermore, in my opinion, the Majority fails to provide adequate reasoning for reducing the claimant's entitlement to wage loss benefits.
The Arkansas Workers' Compensation Law provides that when an injured worker's disability condition becomes stable and no further treatment will improve that condition, the disability is deemed permanent. In order to be entitled to any wage loss disability in excess of permanent physical impairment, the claimant must first prove by a preponderance of the evidence that she sustained permanent physical impairment as a result of the compensable injury. Needham v. Harvest Foods, 64 Ark. App. 141, 987 S.W.2d 278, (1998). If the employee is totally incapacitated from earning a livelihood at that time, he is entitled to compensation for permanent and total disability. See, Minor v. Poinsett Lumber Manufacturing Co., 235 Ark. 195, 357 S.W.2d 504 (1962).
The wage-loss factor is the extent to which a compensable injury has affected the claimant's ability to earn a livelihood.Emerson Electric v. Gaston, 75 Ark. App. 232, 58 S.W.3d 848 (2001). To be entitled to any wage-loss disability benefit in excess of permanent physical impairment, a claimant must first prove, by a preponderance of the evidence, that he or she sustained permanent physical impairment as a result of a compensable injury. Wal-Mart Stores, Inc. v. Connell, 340 Ark. 475, 10 S.W.3d 727 (2000). The Commission is charged with the duty of determining disability based upon a consideration of medical evidence and other matters affecting wage loss, such as the claimant's age, education, and work experience. Emerson Electric v. Gaston, supra.
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). 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 his employer and negative attitude in looking for work are impediments to full assessment of wage loss. The Commission may use its own superior knowledge of industrial demands, limitations, and requirements in conjunction with the evidence to determine wage-loss disability.Oller v. Champion Parts Rebuilders, 5 Ark. App. 307, 635 S.W.2d 276 (1982).
The Majority, in reducing the claimant's entitlement to wage loss benefits, provides little rationale. Their only rationale for reducing the claimant's entitlement to wage loss benefits is because the claimant testified that his condition had improved after surgery and because he had an FCE which revealed he could perform Light work. In my opinion, this rationale is not sufficient to support a finding that the claimant's entitlement to wage loss benefits should be reduced.
The claimant in the present case has worked as a heavy manual laborer for approximately 35 to 40 years. He testified that his prior work as a welder required him to lift heavy items, crawl, climb and stoop. He further indicated that he would no longer be able to perform that type of work. The claimant's only other work experience was as a heavy machinery operator. The claimant testified that he would be unable to perform that work as it requires sitting for extended periods of time. Likewise, he testified that heavy machinery vibrates, which causes his back to hurt. Though the claimant has a high school diploma, in my opinion, he has shown that he is unable to return to work.
While the Majority opines that the claimant admitted his back improved after surgery, I find this reasoning to be flawed in finding he is able to return to work. In fact, in my opinion, the claimant's testimony and the medical evidence both support a finding that considering the claimant's medical condition, he will be physically unable to work in the future. Furthermore, in my opinion, when considering the claimant's advanced age, relatively limited work experience, and education in conjunction with his condition, I find it is unlikely any employer would hire him.
On June 28, 2004, the claimant's treating physician, Dr. Wilson, noted the claimant continued to have muscle spasms and continued to have significant pain, particularly when he attempted to increase his activities. Likewise, Dr. Wilson noted the claimant could not return to work and that it was reasonable for the claimant to apply for Social Security. Furthermore, in my opinion, the claimant's last FCE reveals that he will likely be unable to return to work and earn any meaningful wages.
While I acknowledge that the claimant's last FCE indicated that the claimant was able to perform a light duty job, I note that the duties for performing light duty work would be in excess of those the claimant is able to perform. On the FCE it indicated,
. . . a job should be rated Light Work: (1) when it requires walking or standing to a significant degree; or (2) when it requires sitting most of the time but entails pushing and/or pulling of arm or leg controls; and/or (3) when the job requires working at a production rate pace entailing the constant pushing and/or pulling of materials even though the weight of those materials is negligible.
In contradiction to this description, the FCE indicates that the claimant, "demonstrated limitations with prolonged standing". The report further indicated that the claimant had "slow movement patterns". Lastly, the report indicated that the claimant would benefit from work that allowed him to sit and stand at will and had a limited degree of below the waist work. I further note that the claimant and his wife both testified that the claimant had difficulty standing or sitting for periods of time as short as 30 minutes. When considering the claimant's physical limitations, I find it difficult to think of any job that he could perform. Accordingly, I find that it is unlikely that the claimant will be able to find work in his field or in any field where he would make any significant wages that would comport to his physical limitations. Accordingly, I find that when considering the claimant's relatively advanced age, education, and past work experience as a heavy manual laborer, he should be deemed to be permanently and totally disabled.
For these reasons, I must respectfully concur in part and dissent in part.
______________________________ SHELBY W. TURNER, Commissioner
Commissioner McKinney concurs in part, and dissents in part.
CONCURRING AND DISSENTING OPINION
I must respectfully concur, in part, and dissent, in part from the majority's opinion. Specifically, I concur in the finding that the claimant is only entitled to a 25% loss in wage earning capacity. However, I must dissent from the finding that the respondents controverted the claimant's entitlement to wage loss disability benefits. In my opinion the respondents did not controvert the permanent disability benefits and therefore the claimant's attorney is not entitled an attorney's fee on the wage loss disability benefits. My de novo review of the evidence demonstrates that the respondents accepted liability for the claimant's compensable injury and paid temporary total disability benefits, medical benefits, as well as a permanent physical impairment benefits.
The Arkansas Workers' Compensation Law specifically provides that the Commission shall direct that a fee be paid to the claimant's attorney when a claim has been controverted in whole or in part. See, Ark. Code Ann. § 11-9-715. Making the respondents liable for at least a portion of the attorney's fees serves the legitimate social purposes of discouraging oppressive delays in recognition of liability, deterring arbitrary and capricious denials of claims, and insuring the ability of a necessitous employee to obtain adequate legal representation.See, Aluminum Company of America v. Henning, 260 Ark. 699, 543 S.W.2d 480 (1976). Whether a claim is controverted is a fact question that must be determined from the circumstances of each particular case. Masonite Corporation v. Mitchell, 16 Ark. App. 209, 699 S.W.2d 409 (1985); Climer v. Drake's Backhoe, 7 Ark. App. 148, 644 S.W.2d 637 (1983); Walter v. Southwestern Bell Telephone Co., 17 Ark. App. 43, 702 S.W.2d 822 (1986). The mere failure to pay compensation benefits does not amount to controversion, in and of itself. Revere Copper Brass, Inc. v. Talley, 7 Ark. App. 234, 647 S.W.2d 477 (1983). Likewise, controversion may not be found where the respondent accepts its compensability but delays payment in a reasonable attempt to investigate the extent of the claimant's disability. Horseshoe Bend v. Sosa, 259 Ark. 267, 532 S.W.2d 182 (1976); Hamrick v. The Colson Company, 271 Ark. 740, 610 S.W.2d 281 (Ark.App. 1981). However, assuming a position which requires the claimant to retain the services of an attorney to take the actions necessary to assure that the employee's rights are protected may constitute controversion. New Hampshire Insurance Co. v. Logan, 13 Ark. App. 116, 680 S.W.2d 720 (1984); Turner v. Trade Winds Inn, 267 Ark. 861, 592 S.W.2d 454 (1980).
In my opinion, the claimant's wage loss was accepted by the respondents and was not controverted. The evidence demonstrates that on June 24, 2004, Dr. L. Wilson assigned the claimant a permanent physical impairment rating. On July 12, 2004, the Administrative Law Judge sent counsel for the parties the Prehearing Questionnaire Notice. On July 16, 2004, the respondent carrier received Dr. Wilson's permanent impairment rating letter. On August 8, 2004, the respondents made a prehearing filing acknowledging liability for some degree of wage loss disability. On August 20, 2004, the claimant made a prehearing filing stating that the claimant was entitled to permanent disability benefits in excess of his permanent physical impairment rating. The claimant advised the judge and counsel for respondents, by letter, that the claimant contended that he was permanently totally disabled on September 17, 2004. A prehearing conference was held on October 28, 2004, and a prehearing order was entered on November 2, 2004. On November 2, 2004, counsel for the respondents wrote counsel for the claimant and the judge stating that the respondents would accept liability for 25% loss in wage earning capacity.
It is blatantly clear that the respondents accepted liability for wage loss pursuant to the prehearing filing filed on August 8, 2004. Pursuant to the letter dated November 2, 2004, the respondents accepted liability for a 25% loss in wage earning capacity. Therefore, any amount in excess of 25% that might possibly be awarded to the claimant would be controverted. The evidence demonstrates that the respondents were trying to assess the claimant's wage loss disability level. The claimant's deposition had not been taken. According to the respondents' attorney, the respondents decided that the claimant was entitled to benefits for 25% in addition to the 10% permanent anatomical impairment rating. On the day before the claimant's deposition was taken, the respondents accepted liability for a 25% loss in wage earning capacity. The respondents acted as quickly as possible. Under the law, the respondents are entitled to time to investigate. The mere fact that a respondent investigates a claim prior to admitting liability does not require a finding of controversion. See Stucco Inc. v. Ross, 52 Ark. 42, 914 S.W.2d 767 (1996). Furthermore, it is well settled that the mere failure of an employer to pay compensation benefits does not amount to controversion, especially in instances when the carrier accepts the injury as compensable and is attempting to determine the extent of the disability. Hamrick v. The Colsen Co., 271 Ark. 740, 610 S.W.2d 281 (1981). Clearly, in the case presently before us, the employer was attempting to determine the extent of the claimant's disability. Therefore, I find that the claimant claim for wage loss disability benefits was not controverted by the respondents. Accordingly, for all the reasons set for herein, I must respectfully concur, in part, and dissent, in part, from the majority opinion.
___________________________________ KAREN H. McKINNEY, Commissioner