Opinion
CLAIM NO. E303461
OPINION FILED JUNE 19, 1997
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by BARRY KINCANNON, Attorney at Law, Fort Smith, Arkansas.
Respondent No. 1 represented by ELDON COFFMAN, Attorney at Law, Fort Smith, Arkansas.
Respondent No. 2 represented by JUDY RUDD, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed.
OPINION AND ORDER
The Second Injury Fund, respondent No. 2 appeals, and the claimant cross appeals a decision by the Administrative Law Judge finding that the claimant proved by a preponderance of the evidence that he has a wage loss disability of 31% in addition to the 19% permanent physical impairment rating assigned by the claimant's treating physician and accepted and paid by respondent No. 1. In addition, the Administrative Law Judge found the Second Injury Fund liable for the claimant's wage loss disability. After conducting a de novo review of the entire record, we find that the claimant has proven by a preponderance of the evidence that he has wage loss in the amount of 31% and that the Second Injury Fund is liable for the claimant's wage loss. Accordingly, we affirm the decision of the Administrative Law Judge.
The claimant is a Vietnam veteran and has a B.A. degree in industrial arts. At one time, he was certified to teach in public schools. After graduating from college, the claimant set up shop programs for industry and taught employees how to run the various machines and read blueprints. From 1981 through 1990, the claimant was employed by Texas Instruments in Richardson, Texas. The claimant was living in McAlester, Oklahoma, at the time and he drove approximately 300 miles round trip each day to work. While at Texas Instruments, the claimant began having tonic-clonic (Grand Mal) seizures. He had one while driving and at least two while working in the plant for Texas Instruments. The claimant was diagnosed with a seizure disorder and he began taking Tegretol to control the seizures.
The claimant left Texas Instruments and began working at an Army base near McAlester, Oklahoma. On June 26, 1992, the claimant went to work for the respondent employer. On February 26, 1993, the claimant sustained an admittedly compensable injury when a plate of steel weighing approximately 410 pounds dropped on him. The claimant underwent a cervical diskectomy and fusion at two levels, C5-6 and C6-7, with an autogenous graft on June 10, 1993. Dr. E. P Couch, the claimant's treating orthopedist, wrote in an December 23, 1993 report:
Post operatively, Mr. Allen had an uneventful post operative course and his x-rays showed progressive healing and consolidation of the fusion mass. During Mr. Allen's convalescence, however, he began to experience more and more difficulties with seizures, from which he has suffered for some time. It is my understanding that his personal physician Dr. Joe McCauley feels his seizures are of such severity that he should not return to any type of work in a hazardous environment.
From an orthopedic standpoint, it is my opinion that on the date of Mr. Allen's last examination in this office (November 3, 1993), he had achieved maximum benefit of treatment and can be released from same.
Dr. Couch assessed the claimant with a 19% anatomical impairment which the respondent employer (respondent No. 1) accepted and paid.
Prior to his compensable injury, the claimant was being treated for seizures. In addition, the claimant suffered from post-traumatic stress syndrome directly attributed to his service in Vietnam. Further, the claimant suffered from major depression the onset of which was not developed in the record. The claimant takes massive doses of medication for these disorders and he cannot be licensed to drive. Additionally, because of the Tegretol's impairment of his concentration, the claimant is unable to teach. The claimant is living on income from social security disability, VA disability and Oklahoma State Social Services. The record reflects that the claimant is presently drawing approximately $46,620 a year tax free.
The claimant contends that he is permanently and totally disabled. The Second Injury Fund contends that there is not liability because the claimant's last injury did not combine with the claimant's pre-existing condition to cause his current disability status. In addition, the Second Injury Fund contends that if the claimant has any wage loss, it is not due to his last injury but is due solely to his pre-existing seizure disorder and his post-traumatic stress disorder, which was a latent condition.
The claimant sustained an injury to that portion of his body which is not scheduled under the Act. Therefore, the claimant's entitlement to permanent disability benefits is controlled by Ark. Code Ann. § 11-9-522. Permanent disability compensation is paid where the permanent effects of a work-related injury incapacitate the worker from earning the wages which he was receiving at the time of the injury. When making a determination of the degree of permanent disability sustained by an injured worker with an unscheduled injury, the Commission must consider medical evidence demonstrating the degree to which the worker's anatomical disabilities impair his earning capacity, as well as other factors such as the worker's age, education, work experience, and other matters which may reasonably be expected to affect the workers' future earning capacity. Such other matters are motivation, post-injury income, credibility, and demeanor. 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). 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).
An employee who is injured to the extent that he can perform services that are so limited in quality, dependability, or quantity that a reasonable stable market for them does not exist may be classified a 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 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 worker is not altogether incapacitated from work. Id. 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 respondent has the burden of proving 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, the Commission may consider the claimant's motivation to return to work, since a lack of interest or negative attitude impedes the Commission's assessment of the claimant's loss of earning capacity. City 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. In addition, a worker's failure to participate in rehabilitation does not bar his claim, but the failure may impede a full assessment of his wage earning loss by the Commission. Nicholas v. Hempstead County Memorial Hospital, 9 Ark. App. 261, 658 S.W.2d 408 (1983). We find that the evidence does not support a finding that the claimant is permanently and totally disabled. However, the evidence does support a finding that the claimant has sustained a 31% wage loss.
The claimant testified that there are jobs that he could do such as working on the deburring line at Texas Instruments. In addition, Mr. James Barber, the respondent employer plant supervisor, testified that had the claimant returned to the respondent employer and asked to be re-employed, work within his physical limitations would have been made available to him.
The claimant additionally testified that he take Tegretol, 400 milligrams, 3 times per day, for a total dosage of 1200 milligrams. Tegretol is an anti-convulsant. The claimant also takes Paxil, 20 to 40 milligrams daily, and Ativan, 0.8 milligrams per day. Paxil is an anti-depressant and Ativan is a sedative. The medical evidence supports the claimant's testimony. The claimant has been examined by two physicians who have assessed the claimant's psychological disabilities. Dr. David B. Dean examined the claimant on August 11, 1993, and made the following diagnoses:
Generalized anxiety disorder. Major depression. Posttraumatic stress disorder, combat related. Dementia, mild, by history. No objective evidence for such on mental status examination.
Seizure disorder, grand mal type, posttraumatic, under poor medical control currently with the use of anticonvulsant medication.
Additionally, on September 26, 1994, the claimant was examined by Dr. Cheryl Feigal, who made the following assessments:
1. He has a long standing posttraumatic stress disorder.
2. He is an exceedingly proud man and somewhat reluctant to engage in treatment lest he be perceived as incapable and weak.
3. He has a long standing seizure disorder that is in only partial control.
DIAGNOSIS: Post-traumatic stress disorder. Major depression. Grand Mal Seizure Disorder.
The claimant testified that he did not get his driver's license renewed and he could no longer pass the examination. Therefore, he had no way to travel to and from work. He also testified that he could not renew his teacher's certificate due to memory loss and his inability to pass the examination.
The evidence shows that the claimant has motivation to return to the work force. However, he lacks the ability and knowledge to return to the workforce. Because the claimant has to take so much medication to control his seizure disorder, post-traumatic stress disorder and depression, he is not able to concentrate or drive a motor vehicle. While the claimant appears to be motivated to return to work, there is no financial incentive to do so. The claimant receives approximately $46,620 per year in Social Security disability, VA disability and Oklahoma Social Services. The highest paying job the claimant ever held was with Texas Instruments making between $32,00 and $35,000 per year. The claimant's income was also reduced because he had to travel 300 miles round trip per day from McAlester, Oklahoma, to Richardson, Texas. While working for the respondent employer, the claimant grossed $20,800 per year and he was traveling 150 miles round trip per day. Accordingly, we find that the claimant has failed to prove by a preponderance of the evidence that he is permanently and totally disabled. However, we do find that the claimant has proved by a preponderance of the evidence that he sustained a 31% permanent partial disability. Therefore, we affirm the decision of the Administrative Law Judge.
The threshold question then becomes whether the respondent employer or the Second Injury Fund is responsible for the claimant's wage loss. The Second Injury Fund argues that the test set forth for Second Injury Fund liability inMidstate Construction Co. v. Second Injury Fund, 295 Ark. 1, 746 S.W.2d 539 (1988) has not been satisfied. Therefore, the Second Injury Fund is not liable for the claimant's wage loss disability benefits.
In order to prove Second Injury Fund liability, the following must be satisfied:
First, the employee must have suffered a compensable injury at the present place of employment. Second, prior to that injury the employee must have had a permanent partial disability or impairment. Third, the disability or impairment must have combined with the recent compensable injury to produce the current disability status.
It is unquestionable that the claimant has satisfied the first and second prongs of the Midstate test. The Second Injury Fund conceded that the claimant suffered a compensable injury in February of 1993 while employed by the respondent employer. The Fund also conceded that the claimant suffered from a pre-existing seizure disorder at the time of his compensable injury. However, the Fund argues that the claimant's 1993 compensable injury did not result in additional permanent impairment or disability which combined with the claimant's pre-existing disability or impairment. We disagree. The evidence shows that the claimant had seizures prior to going to work for the respondent but these seizures were not of the magnitude they are since the claimant's 1993 compensable injury. Since his 1993 compensable injury, the claimant has had to double the dosage of Tegretol he must take in order to control his seizures. In addition, there was evidence presented that the number of seizures increased dramatically after the claimant's 1993 compensable injury. Further, the claimant is unable to drive or even obtain a driver's license due to his seizure condition. Before his 1993 compensable injury, the claimant was able to drive.
The Second Injury Fund also contended that the claimant's pre-existing condition or conditions were irrelevant because they were "latent." Ark. Code Ann. § 11-9-525 (a) (3) (1987) provides:
It is intended that latent conditions which are not known to the employee or employer not be considered previous disabilities or impairments which would give rise to a claim against the Second Injury Fund.
In Purolator Courier v. Chancey, 40 Ark. App. 1, 7, 841 S.W.2d 159 (1992), the Arkansas Court of Appeals concluded: "An injury is latent until its substantial character becomes known or until the employee knows or should reasonable be expected to be aware of the full extent and nature of his injury." It is evident that the claimant's conditions were not latent. The claimant testified that on occasion, before the compensable injury at the respondent employer, he would have to leave his job duties and have another employee take over for him while he went to the bathroom to attempt to control the seizures. There was also evidence presented that Texas Instruments changed the claimant's job duties as a result of his seizures. Therefore, the claimant's pre-existing disabilities or impairments cannot qualify as a latent condition.
Therefore, after conducting a de novo review of the entire record, and for the reasons discussed herein, we find that the claimant proved by a preponderance of the evidence that he has a wage loss disability in the amount of 31% in addition to the 19% permanent physical impairment rating accepted and paid by respondent No. 1 and that the Second Injury Fund is liable for the claimant's wage loss disability under the provisions of Ark. Code Ann. § 11-9-525. Consequently, we find that the decision of the Administrative Law Judge should be and hereby is affirmed.
IT IS SO ORDERED.
CONCURRING AND DISSENTING OPINION
While I concur with the majority's findings regarding Second Injury Fund liability, I must respectfully dissent from the finding that claimant is not permanently and totally disabled under the odd-lot doctrine. Claimant can no longer obtain a driver's license and credible testimony presented by he and his wife established that the massive doses of medication required to control his seizures render claimant drowsy much of the time. Under these circumstances, claimant's chances of returning as a reliable member of the work force are slim. Most notably, claimant is no longer able to work around machinery — he use of which essentially all of his training and experience has involved.
Even though he may not be totally helpless or incapacitated, my review of this record does not allow me to conclude that there is "a reasonably stable market" for claimant's employment services, and I would thus conclude that he is permanently and totally disabled under the odd-lot doctrine.
For the foregoing reasons, I concur in part and respectfully dissent in part.
PAT WEST HUMPHREY, Commissioner