Opinion
CLAIM NO. D509282
OPINION FILED SEPTEMBER 29, 1997
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE DONALD PULLEN, Attorney at Law, Hot Springs, Arkansas.
Respondent #1 represented by the HONORABLE NATHAN CULP, Attorney at Law, Little Rock, Arkansas.
Respondent #2 represented by the HONORABLE DAVID PAKE, Little Rock, Arkansas.
Decision of Administrative Law Judge: Reversed.
OPINION AND ORDER
The Second Injury Fund appeals and the claimant cross-appeals an opinion and order filed by the administrative law judge on January 27, 1997. In that opinion and order, the administrative law judge found that the claimant's prior impairment combined with the most recent compensable injury to produce the claimant's current disability status so that the Second Injury Fund is liable for a 15% wage loss.
After conducting a de novo review of the entire record, we find that the greater weight of the evidence establishes that the claimant sustained a 30% permanent anatomical impairment which preexisted his employment with Respondent No. 1. We also find that the claimant has already received permanent disability benefits from the respondents equivalent to a 70% disability to the body as a whole since his 1984 injury. In addition, we find that claimant failed to prove by a preponderance of the evidence that he falls within the odd-lot classification or that he is permanently and totally disabled. Consequently, we find that the claimant failed to prove by a preponderance of the evidence that he is entitled to additional permanent disability compensation (from either Respondent No. 1 or from the Second Injury Fund) in excess of the benefits for a 70% disability rated to the body as a whole already paid by the respondents. Therefore, we find that the administrative law judge's decision must be reversed.
The claimant sustained a back injury on May 3, 1976, while employed by International Paper Company. As a result of that injury, Dr. Giles, a neurosurgeon, performed back surgery. Following a second incident at International Paper, Dr. Giles performed a second surgery. Dr. Giles initially assigned a permanent anatomical impairment rating equal to 20% rated to the body as a whole for these injuries and surgeries, but subsequently increased the claimant's impairment rating to 30% rated to the body as a whole.
The claimant received Social Security disability benefits and returned to college between 1978 and 1981, where he earned a degree and received a certificate to teach. The claimant became employed as a teacher and coach at East End High School in Bigelow in 1982. The claimant became employed by the respondent school district (Mt. Vernon) in 1983. According to the claimant, he sustained an injury on December 21, 1984, when he was playing basketball. Dr. Austin Grimes, a neurosurgeon, ultimately performed a bi-level fusion at the L4-5 and L5-S1 levels of the claimant's spine. In August of 1988, the claimant became employed as a teacher and coach at Cutter Morning High School and in August of 1990, the claimant became employed as a coach at Poyen. According to the claimant, he experienced an additional problem (a new pain) with his back while attempting to move some lockers at school.
On March 26, 1991, Dr. Grimes performed a decompression laminectomy and foramen exploration at the L4 and L5-S1 level. Following that procedure, Dr. Grimes assessed the claimant a permanent partial impairment rating equal to 35% rated to the body as a whole.
Dr. Grimes ascertained that the claimant's L4-5 fusion failed (non-union), and on April 30, 1993, Dr. Grimes performed surgery to insert hardware to stabilize the fusion. Dr. Grimes subsequently ascertained that the stabilization procedure had corrected the non-union, and the hardware was surgically removed on June 24, 1994. Dr. Grimes testified that the additional procedures did not increase the claimant's prior 35% rating. In addition, contrary to the claimant's assertion on appeal that the claimant has experienced a combined impairment of 65% to the body as a whole (30% preexisting plus 35%) after the 1984 injury, Dr. Grimes' deposition testimony (pp. 24-25) indicates that, after his surgeries, he assessed the claimant a total impairment rating of 35% (i.e., essentially from 30% to 35%).
Respondent No. 1, Public Employee Claims, accepted the claimant's 1984 injury and subsequent surgery as a compensable injury. In addition, Public Employee Claims treated the claimant's 1990 problems at Poyen and subsequent surgeries as a recurrence of the claimant's admittedly compensable 1984 injury. The claimant's attorney indicated at the start of the hearing that, as of July 22, 1996, the claimant has received permanent partial disability benefits for a 70% disability as a result of his 1984 injury while employed by the respondent employer.
Since the claimant's admittedly compensable injury in 1990 occurred prior to July 1, 1993, this claim is subject to the Arkansas Workers' Compensation Law as it existed prior to the amendments 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, under the Arkansas Workers' Compensation Law prior to the amendments of Act 796 of 1993, 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).
At the time of the hearing, the claimant was only 43 years old. He has a college degree and teacher's certification. As discussed above, the claimant has taught social studies and coached for various periods between 1981 and 1991. However, the claimant has not worked since his 1991 laminectomy surgery. The claimant contends that as a result of his injuries and surgeries, he has been rendered permanently and totally disabled, or in the alternative, that he falls within the "odd lot" classification, and is entitled to permanent and total disability benefits on that basis.
With regard to the physical requirements necessary to function as a teacher and coach, the claimant testified:
It's pretty physical work you know, especially, if you want to do it right. Teaching has changed. You don't just sit down, especially in junior high and high school. You don't just go in there and sit down and expect the kids just to sit there smiling ready to absorb all the information you're fixing to give them. It takes work, you know, again, the more you put into it, the more you get out of it and your students get out of it.
With regard to the bending, stooping and lifting required in a teaching position, the claimant testified:
You have to be a sponsor for things. You have to carry textbooks, prepare lesson plans and everything besides general movement, you know, going from one area to another and you have to be on your feet all the time.
With regard to his current medications and his daily activities, the claimant testified that he takes medication daily for his back and leg pains, and has additional unscheduled medications that he takes for pain. The claimant testified that his pain medications make him "droggy" (apparently drowsy and/or groggy), and that the medication affects his judgment. The claimant testified that his medication affects him in ways that he does not perceive, but that people around him perceive. The parties stipulated that the claimant's wife would corroborate the claimant's testimony.
The claimant testified that his daily activities include a lot of reading, a lot of housework, and daily exercises. The claimant testified that prolonged sitting causes pain into his low back and legs. The claimant testified that standing causes worse pain than sitting.
The claimant testified that his jaws hurt in the morning because he grinds his teeth at night. The claimant testified that he generally feels worse as the day goes on, so that he finds it best to perform his daily exercises and his daily walking (approximately 1 1/2 mile) in the morning.
The claimant testified that, when he engages in lifting, he tries to lift with his arms and not bend his back. With regard to bending and stooping, the claimant testified that he tries to brace himself, or spread his feet out wide or tries to adapt.
In assessing the weight to be accorded the claimant's testimony regarding his physical limitations, we note that the respondents offered into evidence a videotape of the claimant's activities on July 25, 1996, July 26, 1996, and August 3, 1996.
The videotape from July 25, 1996, shows the claimant closing the hood of his trunk in an area away from his home. This video is significant only to the extent that it occurred at 3:31 p.m., after the morning period when the claimant purports to be relatively pain free. The July 26, 1996, video depicts sequences between 12:23 p.m. and 1:45 p.m. when the claimant appears to be entering or leaving the family car while performing some sort of shopping or errands with his two small children. We perceive that this sequence is also somewhat contradictory to the claimant's testimony regarding his lack of endurance in the afternoon periods.
The third video sequence, recording segments between 2:43 p.m. and 5:50 p.m. on August 3, 1996, appears to bear significantly on the claimant's physical endurance as well as the physical limitations indicated by the claimant's testimony. The first segment (2:43 p.m.) indicates the claimant sitting on a step to his home's door during the course of a telephone call. The claimant's seated position (knees higher than perpendicular to the waist) appears somewhat inconsistent with the claimant's reports of persistent low back and lower extremity pain. At 3:08 p.m., the claimant stood up (without any apparent "bracing", etc.) and walked to his truck. Between 3:09 p.m. and 3:15 p.m. the claimant stood on the ground and leaned inside the passenger's door to sort through what appears to be pieces of paper on the floor board and/or seat. Within the course of approximately the next five minutes, the claimant bent over from the waist approximately seven times from a standing position to pick up trash off of the ground and also picked up several items from inside the cab of the pick up and placed the items in the bed. In addition, the claimant stood on the ground and leaned far into the cab for several seconds while standing on one leg with the other leg raised, apparently to maintain his balance. Between 3:20 p.m. and 3:45 p.m., the claimant bent over from the waist to pick up items from the ground on approximately three more occasions and again stood on one occasion from a sitting position without any apparent bracing or other adjustment.
Between 4:39 p.m. and 4:58, the claimant used a riding lawn mower to mow a relatively small area of lawn using a curricular mowing pattern. During the course of this activity, the claimant on several occasions turned his head to look behind the mower to the right or to the left. Significantly, when the mower appears to have become wedged in some shrubs at 4:55 p.m. the claimant reached down and grasped the riding mower over the right rear wheel and lifted/dragged the mower several inches away from the shrubbery. It appears from the videotape that this action took a significant physical effort involving the claimant's back to lift a significant amount of weight.
At 4:58 p.m., the claimant rode his mower to the end of the street, and the next segment of videotape indicates the claimant riding back to his home at 5:44 p.m. The claimant then lifted and carried two metal ramps (approximately one foot wide and six feet long) to the bed on his pickup truck, and then drove his riding lawn mover into the bed of the pickup. The claimant then went into the house.
In short, we find that the claimant's actions in lifting the rear end of a riding law mower and in carrying the metal ramps, all after 4:00 p.m., significantly diminish the weight to be accorded the claimant's testimony regarding his physical limitations in general and also with regard to his testimony regarding his reduced stamina after the morning hours. Moreover, the videotape indicates that the claimant is capable of occasional bending, lifting and other light-duty activity, with no apparent problem with occasional heavy lifting. In addition, the tape indicates the claimant performing these activities in the mid to late afternoon, and not in the morning when, according to the claimant, he is capable of more pain-free activity.
In assessing the claimant's physical limitations, we also note that the claimant has undergone two functional capacity assessments in 1996. The first assessment was performed at the request of Respondent No. 1 on September 20, 1996, by Jimmy Daniel. This assessment concluded that the claimant demonstrated sufficient functional capacity to work safely and productively insedentary, light, and medium physical demand range jobs as defined by the United States Department of Labor and the Dictionary of Occupational Titles.
In a Vocational Assessment report dated October 16, 1996 (and addressed to the claimant's attorney) Bob White, a vocational consultant, concluded that the claimant has significant vocational handicaps (psychological, cognitive deficits, behavioral and physical impairments) which cannot be overcome at this time. From a medical standpoint, Mr. White notes the claimant's history of (1) arachnoiditis (2) non-union of L4-L5 fusion graft and (3) infections. In assessing the weight to be accorded Mr. White's analysis, we note that the L4-L5 graft non-union and the claimant's history of infections had resolved long before the October, 1996 evaluation.
In addition, contrary to Mr. White's conclusions, David Elmore testified that he is a rehabilitation specialist employed by Intracore and that he has concluded that the claimant could return to work as a social studies teacher. In this regard, Mr. Elmore testified that social studies teacher is classified as light-duty work. In addition, Mr. Elmore testified that he contacted three physicians regarding the claimant's return to work as a social studies teacher: (1) Dr. Reginald Rutherford who had examined the claimant on one occasion in 1996 at the request of Intracore; (2) Dr. Ackerman, who examined claimant in 1996 at the request of Intracore, and (3) Dr. Hart, who had followed the claimant for pain management since at least February of 1994. In response, Dr. Rutherford and Dr. Ackerman indicated that as of October of 1996, the claimant was currently able to perform the job of high school teacher as that job is defined in the 4th Edition (1991) of the Dictionary of Occupational Titles. Dr. Hart, in a more conservative opinion, indicated that the claimant is currently able to attempt to perform the job of high school teacher.
In short, the record establishes that the claimant is a relatively young man (42) who has the education and certification to teach history, social studies and physical education at the secondary level and perhaps geography and drivers' education as well. In addition, a functional capacity assessment in the record indicates that employment as a teacher at the secondary level is within the claimant's physical capabilities, and the videotape in the record shows the claimant engaged in relatively heavy lifting and significant bending activities on the afternoon of August 3, 1996.
Consequently, after considering the claimant's relatively young age, his college education, his work experience in a relatively sedentary occupation, the nature and extent of his injuries and impairment, and all other matters properly in the record, we find that the claimant failed to prove by a preponderance of the evidence that he falls within the odd-lot category, and we find that the claimant failed to prove by a preponderance of the evidence that he is permanently and totally disabled. In reaching that conclusion, we note that, even if the claimant does not feel capable of returning to full-time teaching under contract at this time, the claimant is clearly capable of working part-time as a substitute teacher, if he chooses to pursue this line of work.
Finally, we note that under the Arkansas Workers' Compensation Law, neither Respondent No. 1 or the Second Injury Fund can be held liable to compensate the claimant for the claimant's 30% permanent anatomical impairment which preexisted the claimant's 1984 injury unless the claimant is permanently and totally disabled. See Jeffcoat v. Second Injury Fund, 55 Ark. App. 249 (1996) (Second Injury Fund not entitled to a credit for disability which preexisted second injury if claimant is rendered permanently and totally disabled by combination of first and second injury); Weaver v. Tyson Foods, 31 Ark. App. 147, 790 S.W.2d 442 (1990) (Neither employer at the time of the second injury or the Second Injury Fund is liable for any anatomical impairment which preexisted the second injury where the claimant was not rendered permanently and totally disabled as a result of combination of first and second injuries).
Consequently, since (1) neither respondent can be held liable for the claimant's 30% anatomical impairment which preexisted the claimant's 1984 injury unless the claimant has been rendered permanently and totally disabled; (2) the claimant has already received permanent disability compensation for his 1984 injury equivalent to 70% rated to the body as a whole; and (3) the claimant failed to prove by a preponderance of the evidence that he is permanently and totally disabled, we find that the claimant failed to prove that he is entitled to additional permanent disability compensation from either Respondent No. 1 or Respondent No. 2 under the Arkansas Workers' Compensation Law. Therefore, we find that the decision of the administrative law judge must be, and hereby is, reversed.
IT IS SO ORDERED.
Commissioner Humphrey dissents.