Opinion
CLAIM NOS. E207346 and E306447
OPINION FILED FEBRUARY 5, 1997
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE FREDERICK S. "RICK" SPENCER, Attorney at Law, Mountain Home, Arkansas.
Respondents No. 1 represented by the HONORABLE WILLIAM M. GRIFFIN, III, Attorney at Law, Little Rock, Arkansas.
Respondents No. 2 represented by the HONORABLE MARK MAYFIELD, Attorney at Law, Jonesboro, Arkansas.
Decision of Administrative Law Judge: Affirmed.
OPINION AND ORDER
Respondents No. 1 appeal, and the claimant cross-appeals, an opinion and order filed by the administrative law judge on March 8, 1996. In that opinion and order, the administrative law judge found that the claimant failed to prove by a preponderance of the evidence that he is permanently and totally disabled. In addition, the administrative law judge found that the claimant proved by a preponderance of the evidence that he is entitled to 15% in wage loss benefits for his back injury sustained in April of 1992.
After conducting a de novo review of the entire record, we find that the claimant failed to prove by a preponderance of the evidence that he is permanently and totally disabled as a result of his scheduled foot injury and/or his non-scheduled back injury. Instead, we find that the preponderance of the evidence establishes that the claimant sustained a 15% impairment to his earning capacity as a result of the 10% anatomical impairment to his back established by the medical evidence. In addition, we find that the respondents failed to prove by a preponderance of the evidence that the claimant is barred from receiving permanent disability compensation in excess of his permanent physical impairment under the provisions of Ark. Code Ann. § 11-9-522 (b) (1987). Therefore, we find that the administrative law judge's decision must be affirmed.
The claimant seeks permanent disability benefits for wage loss associated with a non-scheduled low back injury sustained in April of 1992 and a scheduled right foot injury sustained in April of 1993. Since the claimant's injuries occurred prior to July 1, 1993, this claim is governed by the Arkansas Workers' Compensation Law as it existed prior to the provisions of Act 796 of 1993.
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).
Likewise, 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. In this regard, 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. Id. If the claimant makes a 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 claimant'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 of Fayetteville 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).
With regard to the claimant's scheduled right foot injury, an award for a scheduled injury is limited to the benefits provided in the statute for that scheduled injury, absent a finding of permanent and total disability. See, e.g., Federal Compress Warehouse v. Risper, ___ Ark. App. ___, (CA 96-78) (Op. del. Dec. 18, 1996); Anchor Construction Co. v. Rice, 252 Ark. 460, 479 S.W.2d 573 (1972); Springdale Farms v. McGarrah, 260 Ark. 483, 541 S.W.2d 928 (1976);Moyers Brothers v. Poe, 249 Ark. 984, 462 S.W.2d 862 (1971);Taylor v. Pfeiffer Plumbing Heating, 8 Ark. App. 144, 648 S.W.2d 526 (1983); Rash v. Goodyear Tire and Rubber Co., 18 Ark. App. 248, 715 S.W.2d 449 (1986); Haygood v. Belcher, 5 Ark. App. 127, 633 S.W.2d 391 (1982). In addition, an injury scheduled under Ark. Code Ann. § 11-9-521 is payable without regard to subsequent earning capacity. Consequently, an award for a scheduled injury cannot be increased by considering wage loss factors, unless the claimant proves that he is permanently and totally disabled.See, e.g., Risper, supra; Rice, supra; McGarrah, supra; Taylor, supra; Rash, supra; Haygood, supra.
In the present case, the claimant was 61 years old at the time of the hearing and had worked as a long haul trucker for approximately 26 years. For the last 17 of those years the claimant drove in tandem with his wife. The claimant and his wife hauled freight cross country, and their routine schedule consisted of three weeks on the road driving followed by one week at home.
The claimant sustained an admittedly compensable low back injury on April 28, 1992, while unloading freight during a haul to New York. At the time of the back injury, the claimant worked for B D Transport under lease to American Transportation (Respondent Employer #1).
On returning to Arkansas, the claimant received conservative medical treatment for low back pain and radicular symptoms into the left leg. Diagnostic testing indicated a left sided disc herniation at the L4-5 level of the claimant's lower back. When conservative treatment did not diminish the claimant's symptoms, Dr. Scott Schlessinger performed surgery to remove the herniated disk fragment on August 8, 1992.
The claimant's medical records indicate that surgery greatly relieved the claimant's radicular left leg symptoms and also diminished the claimant's low back pain to a significant degree. After a period of conditioning, Dr. Schlessinger released the claimant to return to work on January 1, 1993, with restrictions against heavy lifting and heavy pulling, but with no guarantee that the claimant's pain would not return. The claimant and his wife returned to long haul trucking for B D Transport. During a follow-up examination approximately one month later, the claimant indicated that he was experiencing some soreness in his back and through his groin into his left leg after long drives. Dr. Schlessinger assigned the claimant a 10% anatomical impairment rating for his back condition and released the claimant to return on an as needed basis. Respondents No. 1 accepted and paid the 10% rating.
On April 2, 1993, the claimant received an admittedly compensable right foot injury in Florida when the front wheel of a trailer rolled across the claimant's foot. At that time, the claimant was driving for B D Transport under lease to TTC Illinois (Respondent Employer #2). X-rays taken before the claimant returned to Arkansas indicated a possible fracture in the second toe of the claimant's right foot. In addition, a deep infection of the right foot prolonged recovery from the right foot injury.
The claimant and his wife began driving for a new employer (Rising Star Trucking) on August 13, 1993, and Dr. David Sward assigned the claimant a 10% permanent anatomical impairment rated to the right foot shortly thereafter. At that time, the claimant was experiencing stiffness of the subtalar joint, and x-rays indicated a healed fracture of the second metatarsal. Respondents #2 accepted and paid the 10% rating to the claimant's right foot.
On August 24, 1993, ITT Hartford (respondent carrier #1) engaged the services of HLJ Consulting Service, Inc., which had previously assisted the claimant on behalf of respondent #1, to become re-involved in the claimant's medical and vocational recovery related to his back injury. On September 7, 1993, the claimant advised Ms. Lori Bobrowski, a registered nurse with HLJ, that he had returned to driving with his wife, but was experiencing back and leg problems. After corresponding with the claimant and with Dr. Schlessinger, Ms. Bobrowski concluded in her September 14, 1993, report:
Vocational Aspects: Mr. Prince has returned to long-distance truck driving. He and his wife function as team drivers. Apparently Mrs. Prince takes the greater bulk of the driving since the jarring motion when seated causes greater pain for Mr. Prince. Mr. Prince indicates that he often rests in the sleeping compartment, but that only lessens the symptoms and does not eliminate them.
Psycho-Social Aspects: Any back pain will be greatly influenced by longer hours on the road in a semi-cab. In addition, greater aggravation is experienced by the need to climb up and down from the cab area. Fortunately Mr. Prince indicates that he does not have to load and unload the trailer. It is reasonable to assume that as long as Mr. Prince engages in this activity that he is at risk for a new injury, and that his prior back injury will result in more frequent periods of exacerbation than it would if he were in most other occupations.
On July 6, 1994, the claimant presented to Dr. Schlessinger for back pain over the prior five months without radicular symptoms into the left leg. Dr. Schlessinger recommended physical therapy and attempted to place the claimant in off work status until physical therapy was completed. In addition, Dr. Schlessinger ordered diagnostic testing which, he reported as follows:
I saw Mr. Prince back today in follow-up. The results of his lab tests were all negative. The plain x-rays of his lumber spine show no evidence of any instability or problems with his previous surgery. I think he just has longstanding arthritis problems of his back and will just have to modify his lifestyle. I certainly see nothing I can offer him neurologically. I am going to release him from my care at this time.
In a July 25, 1994, follow-up letter, Dr. Schlessinger added:
I failed to mention that he continues to state that long hauls really do aggravate his back. I think this is reasonable. I think he should at least for the near future and maybe permanently be restricted to short hauls as this would be less injurious to his spine.
Laboratory tests ordered by Dr. Schlessinger confirmed that the claimant's recurrent back difficulties were not caused by rheumatoid arthritis. According to the July 8, 1994, HLJ report prepared by Ms. Ann Wilson, a registered nurse for HLJ who attended the claimant's July 6, 1994, evaluation, Dr. Schlessinger indicated to Ms. Wilson that the claimant's arthritic back problems were caused by wear and tear associated with, and progressed from, his back injury and diskectomy surgery. Ms. Wilson also indicated that the claimant intended to continue working, although the claimant's wife had reservations as to whether the claimant would return to driving.
The claimant's wife testified that the claimant continued to drive with her as a long-haul trucking team until October 26, 1996, approximately one month prior to the hearing in this claim. According to the claimant's wife, the claimant's driving prior to that last run was limited to driving four hour stretches while she rested. The claimant and his wife each indicated that the claimant's major limitation in long haul driving has been persistent low back pain and swelling in his feet and legs. However, in a deposition taken on September 11, 1995, shortly before the claimant and his wife made their last cross-country trip, the claimant testified that he felt like he could operate at about a 75% level. The claimant testified that he continues to work at home operating a push mower and weed eater and that he works on the family automobiles at a slow pace and with frequent rest intervals to relieve back pain.
In short, the evidence indicates that the claimant was 61 years old at the time of the hearing. He sustained a significant back injury in 1992 which required surgery to relieve radicular symptoms in his left leg. The claimant also sustained a more minor right foot injury in 1993.
The majority of the claimant's work history has been long-haul trucking, and the evidence indicates that the claimant has been highly motivated to continue long-haul team driving with his wife for as long as possible. The claimant's high motivation to continue team driving with his wife was certainly understandable since the claimant and his wife had driven together to earn the family income for many years prior to the claimant's back injury, and since the claimant's wife cannot continue working as a tandem long-haul driver without a partner.
However, the evidence also establishes that the claimant began experiencing low back pain caused by jarring in the truck when he returned to long-haul driving in January of 1993. By November of 1993, Ms. Bobrowski with HLJ Consulting expressed concern with the claimant's recurring back pain caused by long-haul trucking, and consulted with the claimant on a change in jobs. In July of 1994 Dr. Schlessinger indicated that long-haul trucking exacerbates the claimant's recurring low back pain to such a degree that the claimant should get out of long-haul trucking. Nevertheless, the claimant continued to drive as a long-haul trucker with his wife until October of 1995, even though long-haul routes caused significant recurrent back symptoms which, according to the claimant's wife, significantly reduce his ability to perform his share of the driving and required longer amounts of time to complete their routes. However, the evidence indicates that the claimant continues to engage in a variety of light activities. In addition, Dr. Schlessinger's 1994 evaluation indicates that the claimant is capable of driving shorter routes or locally if he chooses to pursue this type of employment. To date, however, the claimant has not made any effort to locate a job outside long-haul trucking. Therefore, we find that the claimant's lack of interest in locating work in any employment other than long-haul trucking impedes our assessment of his earning capacity.
Consequently, considering all relevant factors, we find that the claimant failed to prove by a preponderance of the evidence that he is totally incapacitated from earning, and we find that the claimant failed to make a prima facie case that he falls within the odd-lot category. Therefore, we find that the claimant failed to prove by a preponderance of the evidence that he is permanently and totally disabled. Since the claimant failed to prove by a preponderance of the evidence that he is permanently and totally disabled, we also find that an award of benefits for the claimant's scheduled right foot injury is limited to the benefits in Ark. Code Ann. § 11-9-521 for that injury without regard to subsequent earning capacity. With regard to the claimant's low back injury, after considering all relevant factors, we find that the claimant has sustained a 15% impairment to his earning capacity in excess of the 10% permanent physical impairment established by the medical evidence.
With regard to the respondents' assertion that the claimant is barred from receiving wage loss disability compensation under Ark. Code Ann. § 11-9-522 (b) (1987), Ark. Code Ann. § 11-9-522 (b) through (d) provide the following:
(b) In considering claims for permanent partial disability benefits in excess of the employee's percentage of permanent physical impairment, the 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 future earning capacity. However, so long as an employee, subsequent to his injury, has returned to work, has obtained other employment, or has a bona fide and reasonably obtainable offer to be employed at wages equal to or greater than his average weekly wage at the time of the accident, he shall not be entitled to permanent partial disability benefits in excess of the percentage of permanent physical impairment established by a preponderance of the medical testimony and evidence. [Emphasis added].
(c)(1) The employer or his workers' compensation insurance carrier shall have the burden of proving the employee's employment, or the employee's receipt of a bona fide offer to be employed, at wages equal to or greater than his average weekly wage at the time of the accident.
(2) Included in the stated intent of this section is to enable an employer to reduce or diminish payments of benefits for a functional disability, disability in excess of permanent physical impairment, which, in fact, no longer exists, or exists because of discharge for misconduct in connection with the work, or because the employee left his work voluntarily and without good cause connected with the work.
(d) In accordance with this section, the commission may reconsider the question of functional disability and change a previously awarded disability rating based on facts occurring since the original disability determination, if any party makes application for reconsideration within one (1) year after the occurrence of the facts.
The Arkansas Court of Appeals has found "that 11-9-522 (b) precludes a claim for wage loss benefits as a matter of law only during such time as the claimant has returned to work, obtained other employment, or has a bona fide and reasonably obtainable offer to be employed at wages equal to or greater than his average weekly wage at the time of the accident." Belcher v. Holiday Inn, 43 Ark. App. 157, 868 S.W.2d 87 (1993);see also, J B Drilling v. Lawrence, 45 Ark. App. 157, 873 S.W.2d 817 (1994). Likewise, the Court has concluded that it was "the intent of the legislature to impose a bar on wage-loss benefits conditioned on continued employment or offer of employment, rather than a permanent bar. . . ." Belcher, supra; see also, Lawrence, supra. In short, the Court has ruled that the statute is only a bar during the time that the claimant continues to work or have a bona fide offer of employment. The Court has also recognized the exceptions to the rule found in § 522 (c)(2) which provides that the bar continues if the claimant voluntarily terminates his employment without good cause or is terminated for misconduct.
In the present claim, the claimant initially returned to long-haul trucking in January of 1993 after recuperating from back surgery, and the claimant returned to long-haul trucking again in August of 1993 after recuperating from his foot injury. After returning to trucking in August of 1993, the claimant continued to drive, at least to some extent, until late October of 1995, when he quit long-haul trucking completely.
The parties stipulated that the claimant's average weekly wage at the time of his 1993 back injury was $350.00 per week. The respondents also submitted into evidence pay records from Rising Star Trucking indicating that the sum of the claimant's mileage pay and per diem in 1994 and 1995 averaged over $350.00 per week, although the claimant's milage pay averaged less than $350.00 per week. Therefore, the respondents assert that the claimant had returned to work earning "wages equal to or greater than his average weekly wage at the time of the accident" until he voluntarily terminated his employment with Rising Star in October of 1995. However, we find that the respondents' assertion lacks merit for these reasons.
First, the claimant testified that the 1993 average weekly wage was based on his mileage pay, i.e., he would earn $350.00 per week by driving 3500 miles and getting paid 10 cents per mile. The respondents did not present any contrary evidence on whether the 1993 average weekly wage was based solely on mileage pay as the claimant suggests, or whether the average weekly wage also included the claimant's per diem. Until very recently, it was an unsettled issue under Arkansas law as to whether per diem is included in wages for determining an average weekly wage rate. InJim Jackson v. Cawood Trucking, Full Workers' Compensation Commission, Aug. 14, 1996 ( E505719), the Full Commission held that per diem is included in wages. If as the claimant's testimony indicates, his average weekly wage of $350.00 in 1993 was based solely on his mileage pay without considering per diem, then the claimant was clearly not getting paid the same wages after the 1993 injury that he was being paid before the injury.
Second, even if we were to determine that the claimant was getting paid the same or greater wages after returning from the 1993 injury, which we do not find, the greater weight of the evidence indicates that the claimant's wife was actually performing the bulk of the driving after the 1993 injury, and according to her testimony, she and her husband were paid equal checks based on the sum of the total miles driven by the two regardless of who actually drove the truck. In other words, the claimant would get paid the same amount regardless of how much driving he actually performed. Therefore, even if the claimant got paid the same or greater wages after returning to driving, it appears that a significant portion of his pay was based on his wife's extra driving duties which would not have been indicated in the pay records.
Third, Dr. Schlessinger advised the claimant in July of 1994, over one year before the claimant stopped driving altogether, that long-haul trucking was jarring the claimant's back in a manner causing recurrent back symptoms, and Dr. Schlessinger advised the claimant in 1994 to seek other employment. Although the claimant continued to tandem drive with his wife after that date, the claimant's wife advised the claimant's rehabilitation consultant as early as September of 1993 that she was required to perform the bulk of the driving because of the claimant's condition. At the hearing, the claimant's wife testified that, by October of 1995, the claimant could only drive for four hours at a time while she rested. Therefore, based on the claimant's documented recurrent back problems since he first returned to long-haul trucking, and his doctor's 1994 recommendations that the claimant get out of long-haul trucking, we find that the greater weight of the evidence establishes good cause for the claimant's termination of his employment as a long-haul trucker in October of 1995. Consequently, for the reasons discussed herein, we find that the respondents failed to prove by a preponderance of the evidence that Ark. Code Ann. § 11-9-522 (b) (1987) bars the claimant's claim for disability benefits in excess of the percentage of permanent physical impairment established by the medical evidence.
Therefore, after a de novo review of the entire record, and for the reasons discussed herein, we find that the claimant failed to prove by a preponderance of the evidence that he is permanently and totally disabled, and we find that the claimant sustained a 15% impairment to his earning capacity as a result of the 10% anatomical impairment to his back established by the medical evidence. In addition, we find that the claimant is not barred from receiving permanent disability compensation in excess of his permanent physical impairment under the provisions of Ark. Code Ann. § 11-9-522 (b) (1987). Therefore, we find that the decision of the administrative law judge must be, and hereby is, affirmed.
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 (b) (Repl. 1996).
IT IS SO ORDERED.
Commissioner Humphrey concurs.
CONCURRING AND DISSENTING OPINION
I concur in part and dissent in part from the majority opinion. Based upon my de novo of the entire record, I find that claimant has failed to prove that he is either permanently or totally disabled or that he is entitled to any wage loss disability benefits.
Ark. Code Ann. § 11-9-522 states in pertinent part:
. . . However, so long as an employee subsequent to his injury, has returned to work, has obtained other employment or has a bona fide and reasonably obtainable offer to be employed at wages equal to or greater than his average weekly wage at the time of the accident, he shall not be entitled to permanent partial disability benefits in excess of the percentage of permanent physical impairment established by a preponderance of the medical testimony.
In my opinion, claimant returned to work following his compensable injury earning wages at least equal to, if not greater than the average weekly wage he was earning at the time he sustained an injury to his back. I cannot agree that the claimant's average weekly wage at the time of his injury may have been higher than he was earning after returning to work. Such a conclusion requires one to speculate with regard to claimant's average weekly wage at the time of the injury. Conjecture and speculation, even if plausible, cannot take the place of proof. Ark. Dept. of Correction v. Glover, 35 Ark. App. 32, 812 S.W.2d 692 (1991). Dena Construction Co. v. Herndon, 264 Ark. 791, 575 S.W.2d 155 (1970). Arkansas Methodist Hospital v. Adams, 43 Ark. App. 1, 858 S.W.2d 125 (1993). The only evidence in the record with regard to claimant's average weekly wage at the time of his compensable injury clearly shows claimant was earning $350 per week as an average weekly wage.
The record further reflects that claimant was fully capable of carrying out his job duties until claimant voluntarily quit his work one month and four days prior to the hearing on wage loss. Although claimant alleges that he was not capable of performing his job duties, such is not the evidence of record. Claimant continued to work with his wife as tandem over the road drivers. Claimant continued to draw a paycheck for performing his job duties. Moreover, claimant testified in his deposition that he was at least 75% with regard to his health and physical capabilities. In my opinion, claimant has simply tried to create wage loss by voluntarily terminating his employment. The evidence reflects that claimant's job was still available at the time of the hearing and should claimant so desire he could return to work.
Accordingly, I find that claimant has failed to prove that he is entitled to any wage loss disability benefits over and above his physical impairment rating. I specifically find that claimant return to work earning wages at least equal to or greater than he was earning at the time of his accident. Therefore, I find that the decision of the Administrative Law Judge awarding wage loss disability benefits should be reversed. Accordingly, I concur in part and dissent in part from the majority opinion.
MIKE WILSON, Commissioner