Opinion
CLAIM NO. E603265
OPINION FILED NOVEMBER 19, 2003
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by HONORABLE GREGORY R. GILES, Attorney at Law, Texarkana, Arkansas.
Respondent No. 1 represented by HONORABLE MARK A. PEOPLES, Attorney at Law, Little Rock, Arkansas.
Respondent No. 2 represented by HONORABLE TERRY PENCE, Attorney at Law, Little Rock, Arkansas.
Decision of the Administrative Law Judge: Affirmed.
OPINION AND ORDER
Respondent No. 1, Georgia-Pacific Corporation, a self-insured employer (hereinafter "Employer"), has appealed an adverse decision from the Administrative Law Judge filed November 7, 2002 finding that the claimant is permanently and totally disabled, and that Respondent No. 2, Second Injury Fund (hereinafter "The Fund") has no liability for claimant's additional wage-loss disability. For the reasons set out below, we affirm the decision of the Administrative Law Judge.
I.
Ronny Lee Bryan, the claimant, born July 1, 1943, is a 1961 high school graduate who also has approximately 80 hours of post-secondary education. The claimant has also taken classes in basic computer skills. The claimant was employed by the Employer and its predecessor from December 1979 until March 1998.
After graduating high school in 1961, the claimant worked various construction jobs for the next four to five years. Work performed by the claimant included heavy manual labor as well as operating heavy equipment. The claimant also drove trucks and did some engineering work on survey teams. In March 1966, the claimant secured employment at the Lone Star Army Depot as a material handler in the storage division. In April 1966, the claimant sustained an injury to his head while performing his employment duties. At the hearing, the claimant testified regarding the 1966 injury:
We were working out of boxcars me and another boy a friend of mine. We were taking dunnage which is two by fours off the bottom. The supervisor told us, said you all hurry up and get that boxcar unloaded and we'll be back to pick you up in just a minute. Well, the guy running the forklift was kind of goofy. . . . He went in there and he picked up three pallet loads of these white phosphor shells. They weighed 1200 pounds a piece and he overloaded his forklift. I bent down to get some dunnage off the floor, and he backed over a two by four and the pallet load fell off and caught me just side of the head and pinned me this side against the steel side of the boxcar. They didn't completely fall off the fork truck. I think they just shifted off. It fractured my skull, busted both eardrums.
In addition to the fractures to his skull and eardrum damage, the claimant testified that he suffered some damage to his hypothalamus. The claimant received treatment for both his skull and eardrum injuries growing out of the 1966 injury.
The testimony of the claimant at the hearing reflects that he did, in fact, return to the employment at the Lone Star Army Depot subsequent to his April 1966 head injury. The claimant did not undergo any surgeries relative to the injury. Further, the claimant denies that he lost any hearing as a result of the injury suffered to his eardrums in the accident. The claimant testified that after returning to work, he was advanced from working in storage to employment duties of high explosive operator and earned more money. The claimant attributes a nervous breakdown that he had while working at the Lone Star Army Depot to pressure placed on him to sign a settlement relative to the accident. The testimony of the claimant reflected that immediately following the termination of his employment by the Lone Star Army Depot, he proceeded to the unemployment office to file a claim for benefits. The claimant noted that Lone Star was continuing to employ people at that facility through the unemployment office. The claimant maintains that physically he was capable of performing work at Lone Star at the time his employment was terminated. The claimant maintains that while attempting to pursue unemployment benefits or to secure employment through the unemployment office, individuals at Lone Star were contacted by the unemployment office. As a consequence of this contact, the claimant's testimony reflected that he was informed that he was unemployable and that he should pursue Social Security Disability. The claimant's employment with Lone Star was terminated in 1968.
The testimony of the claimant reflects that the workers' compensation claim against Lone Star Army Depot was concluded with an award of permanent total disability under workers' compensation procedures of Texas. The claimant noted that he received the maximum amount allowable at the time relative to the claim, $13,000, out of which attorneys' fees and medical costs were paid. Additionally, the claimant filed for and received Social Security Disability commencing in 1968. The claimant attributes the award of Social Security Disability to his mental or psychological problems growing out of the circumstances of the 1966 injury. The claimant's testimony at the hearing reflects that at the same time he filed for Social Security Disability, he considered employment with Nekoosa, the predecessor of employer. The claimant's testimony reflects:
But I did get my disability social security started. I told my wife, I said if that's what they want, if that's what they want me to do, that's what I'll do. I said, I really don't want to do this. I said, I would rather go back to work. I even went out and applied for a job at the mill in 1968 when they were first fixing to crank up.
While receiving Social Security Disability subsequent to 1968, the claimant returned to school. The claimant testified he was interested in pursuing a career as a veterinarian. However, there were no schools in his immediate area. After obtaining the basic classes, the claimant would be required to relocate in order to obtain a veterinarian degree.
From 1974 through 1979, the claimant received Social Security Disability. The claimant had previously attended school from 1968 until 1974. He did not attend school during the five-year period between 1974 through 1979. The claimant acknowledges that during the time period, he did consider employment and, in fact, took the Civil Service exam and passed it relative to a position with the post office. The claimant explained that the post office position was part time and that his wife was fearful that the Social Security Disability benefits would cease with his employment and that the family would not be able to survive with his part time employment with the post office. As a consequence, the claimant did not pursue the part-time position with the post office. The claimant testified at the hearing that after the pursuit of the veterinarian degree did not work out, he talked with a friend about employment at Nekoosa. The claimant took a job with Nekoosa in December of 1979. When he was hired, he started out in the labor pool in production where the claimant performed heavy manual labor in his employment, including operating a jack hammer as well as heavy equipment. Further, the evidence disclosed that the claimant worked 12-hour shifts and did not experience any physical restrictions or limitations in his employment activities. The claimant ultimately became a heavy equipment operator in his employment with Nekoosa. The claimant noted that he worked a lot of 12-hour days and estimated that he put in as many as 600 hours of overtime in some years.
In 1983, while still employed by Nekoosa, the claimant first sustained an injury to his back in the course and scope of his employment. The 1983 injury was sustained when claimant, while working in the slaker pit, slipped and fell, injuring his back. The claimant's testimony reflects that after the 1983 fall, he reported the injury to his supervisor. The claimant received initial medical treatment at the hospital in Ashdown and returned to work. The claimant noted that he continued to have problems with his lower back as he discharged his employment duties. At one point while working, his right leg went numb. The claimant was referred to Dr. Thomas Fletcher, a Little Rock neurosurgeon, for complaints about his lower back.
The testimony of the claimant at the hearing reflects that he underwent a CT Scan prior to being seen by Dr. Fletcher. The claimant testified that Dr. Fletcher related that he had two bulging disks in his back. Dr. Fletcher pursued a conservative treatment regimen with respect to the claimant's lower back injury, including the wearing of a back brace for a period of six months. The claimant noted that he wore the back brace religiously and continued to discharge his employment duties. The claimant, in fact, wore the back brace for eight months. The claimant testified that after he had ceased wearing the back brace, he only experienced occasional complaints with his back. The claimant provides the example of experiencing an aggravation relative to his back after using a jack hammer for eight to ten hours. The claimant did not return for medical treatment relative to low back pain once he ceased wearing his back brace, although he did continue to perform his regular employment duties. The claimant noted that he had no further problems with leg complaints after he recovered from the 1983 back injury.
On March 15, 1987, the claimant suffered an injury to his right shoulder and elbow when he was thrown from a horse. This 1987 injury required reconstructive surgery relative to his right elbow under the care of Dr. Greg Smolarz. The testimony of the claimant reflected that following his recuperation from the March 15, 1987 right elbow injury, he was able to return to work for Employer, discharging duties in the motor shop. The claimant testified that he performed the same job duties following the right elbow injury as he had performed prior to the injury.
While there is some uncertainty with respect to the date of the injury, the evidence reflected that in the 1990s, either in 1991 or 1992, the claimant sustained injuries to both feet within the course and scope of his employment with the Employer, when a forklift he was attempting to start jumped gear and ran over his feet. The claimant was sent to Little River Memorial Hospital in Ashdown, where X-rays were obtained. Testimony at the hearing showed that while the claimant did not miss time from work, when he was returned to work, he was not performing his regular duties. The claimant is uncertain how long it took him to recover from his feet injury, but he noted that he eventually returned to his regular duties. The claimant estimated that it was within approximately two months. Claimant continued to have problems with his feet after he returned to full duties in his maintenance job.
Claimant's testimony reflects that in his return for medical treatment relative to his feet, his complaint was assessed as possible diabetes, and he was ultimately provided medication for this. The record shows that the claimant subsequently was treated by Dr. Smolarz during 1993 and 1994 relative to his feet complaint. The claimant testified that he received five cortisone shots in each foot with beneficial results for a period of three months. The claimant returned and received another round of five shots in each foot which resulted in only two months duration with respect to the symptom relief. The testimony of the claimant reflects that when he returned for the third time, that was as much as could be given.
The claimant also underwent nerve conduction studies relative to his feet complaints. The testimony of the claimant reflects that in addition to the cortisone shots for the treatment of his feet complaints, he also obtained some orthopedic inserts for his shoes to address this complaint. The claimant was continuing to discharge his regular employment duties and was scheduled for surgery to remove some neuromas from his feet prior to his February 23, 1996 low back injury. The claimant also testified that at some point while he was receiving treatment for the injury to his feet, he considered going back and trying to pursue a workers' compensation claim.
In 1997, a progress note of Dr. Fletcher stated that the claimant told them that the claimant had slipped on some icy steps on a crane. Although the claimant was continuing to see and be treated by Dr. Fletcher, he continued to work performing his regular job duties.
The medical records reflect that between the March 23, 1998 visit and an April 9, 1998 report of Dr. Fletcher, the claimant underwent a repeat MRI at the direction of Dr. Fletcher. An April 9, 1998 report of Dr. Fletcher reflects in pertinent part:
This is a follow up report of Ronny Bryan. I have obtained the MRI scan that was made at St. Michael's Hospital in Texarkana on April 2, 1998, and this shows a recurrent lumbar disk herniation at L4-5 with an extruded disk fragment, giving compression to the L5 nerve root. This explains the continued difficulty Mr. Bryan has been receiving with his back, and is a problem that will require him having surgery again.
On May 5, 1998, the claimant underwent surgery at St. Vincent Infirmary Medical Center in Little Rock under the care of Dr. Fletcher. Post-operative diagnosis was that of recurrent lumbar disk herniation at L4-L5 associated with adhesion and scarring. The claimant testified that the May 1998 surgery helped him immensely, that he had no more foot pain and that he was doing well. The claimant acknowledged that within three months following the surgery, he was again having pain and feeling depressed. He denied, however, suffering a subsequent injury. The claimant sought treatment under the care of Dr. Kevin Kleinschmidt, his family physician, for his depression. A September 21, 1998 report of Dr. Fletcher reflected that the claimant was seen on September 17, 1998. In it, Dr. Fletcher reported in pertinent part:
He was having increased difficulty since I last saw him in August. He is complaining of back pain, numbness to both legs and feet, and shooting pains in his legs. Because of these symptoms, he has not been walking or exercising. He states since I last saw him, he has been put on a mild anti-depressant. However, he feels that it hasn't helped him to any degree. . . . his main concern is the numbness in his legs and feet, and he has requested that another MRI study be obtained to evaluate the increased symptoms in his back and legs.
As you know, he had surgery for a lumbar disk in April 1996, and surgery again for a recurrent disk on May 4, 1998, and at that time had adhesions and scarring in association with the disks.
On November 2, 1998, the claimant underwent an MRI of his lumbar spine at St. Michael's Healthcare Center in Texarkana at the recommendation of Dr. Fletcher. In a November 30, 1998 report, Dr. Fletcher noted that the MRI scan obtained on November 2, 1998 revealed post-operative changes with some adhesion and scarring, but no evidence of recurrent disk or nerve root compression.
Responding to a January 13, 1999 inquiry from employer, Dr. Fletcher addressed the claimant's anatomical impairment along with other matters in a letter dated January 26, 1999:
In replying to your letter of January 13, 1999 concerning Ronny Bryan, I would estimate that he has reached the end of his healing period following the surgery that he underwent on May 04, 1998 as of January 1, 1999.
I would estimate his impairment rating as 15% to the body as a whole secondary to the work-related injury that he sustained in February 1996, and for which he has undergone surgery on two occasions.
He had previously estimated to have a 10% impairment rating, and the present rating includes an additional 5%, for a total of 15% impairment related to the body as a whole.
It is my opinion that Mr. Bryan's depression is a result of the problem he has had from his back condition, and I originally recommended to Dr. Kleinschmidt that he be placed on medication for that. That was indicated in my report to Georgia-Pacific on August 20, 1998.
The claimant did not return to Employer after March 24, 1998. In a letter dated March 17, 1999, Karen S. Miller, Safety Administrator, provided Dr. Fletcher with claimant's job description and requested any restrictions suffered by the claimant as a result of his compensable injury. Dr. Fletcher made an entry on the document reflecting that the claimant had indicated that he was unable to return to work and would be filing for Social Security Disability.
Following Dr. Fletcher's retirement, the claimant was referred to Dr. Joe Patterson, a Texarkana neurosurgeon, by Dr. Kleinschmidt. The claimant was seen by Dr. Patterson on June 8, 1999. Dr. Patterson's clinical impression following his examination of the claimant and review of the diagnostic films was that of post-laminectomy syndrome with probable arachnoiditis. A July 29, 1999 chart note of Dr. Patterson reflected in pertinent part:
Mr. Bryan returns today with an MRI of his lumbar spine which demonstrates fairly clear cut arachnoiditis. I do not see any recurrent disk herniation to explain his pain. This is not a surgical problem at this point. We will refer him to a pain clinic for further treatment.
Despite Dr. Patterson's recommendation of pain management, the employer referred claimant to the HealthSouth Evaluation Center for a functional capacity evaluation which took place in September 1999. A report by Dr. Barry Green stated that, "Based on the FCE, the claimant should be able to perform a sedentary and light work." Prior to the claimant's evaluation by Dr. Patterson in June 1999, the claimant had through his attorney asserted entitlement to wage-loss disability benefits in excess of the 15% impairment as it says by Dr. Fletcher in his January 26, 1999 report. Responding to this assertion, the Employer through its attorney filed a prehearing questionnaire response on May 25, 1999 wherein they contend that the claimant was not entitled to wage-loss disability benefits. Following the September 1999 functional capacity evaluation, the Employer in correspondence dated October 12, 1999 stated that it would voluntarily accept and pay to the claimant permanent partial disability benefits for wage loss in the amount of 10% in addition to the claimant's 15% anatomical impairment. On August 23, 2000, the claimant returned to Dr. Patterson, at which time Dr. Patterson wrote a letter recommending the claimant be referred to a pain specialist. The claimant was again seen by Dr. Patterson on November 1, 2000 for severe pain and was given a prescription for Tegretol. The claimant testified that following this November 1, 2000 visit, his pain continued to get worse. The claimant attempted to see Dr. Patterson on November 17, 2000 for treatment for his severe back pain. However, Dr. Patterson was not available. The claimant testified that because of the severity of his pain and his desire to be seen by his treating physician, Dr. Patterson, who was on staff at Wadley Regional Medical Center, the claimant proceeded to the emergency room at Wadley Regional Medical Center for treatment. During this visit, the claimant underwent another MRI on the orders of Dr. McCrary. This scan showed bulging at L4-L5 and S1 with moderate spinal stenosis at L3-L4. The cost for this emergency room treatment was $2,357.35, for which Employer has refused to pay as being unauthorized. The claimant later was referred by Dr. Patterson to Dr. Reginald Rutherford, a Little Rock neurosurgeon and pain specialist. In February 2001, Dr. Rutherford prescribed Oxycontin, which caused the claimant to become constipated. In March 2001, Dr. Rutherford concluded that the claimant would not realize any more benefit from his treatment. In a letter to Employer's attorney in April 2001, Dr. Rutherford stated that:
Mr. Bryan's complaint of chronic pain is considered referable in arachnoiditis complaining of his lumbar spinal surgery. There is evidence of co-morbid peripheral neuropathy, which I would attribute to Mr. Bryan's diabetes. The medical treatment indicated for both referable to lower extremity pain is adequate analgesia. This is what is being pursued in Mr. Bryan's case. This is clearly and causally related to his work injury referable to the arachnoiditis. Based upon the findings on imaging, an electromyographic examination, it is my presumption that arachnoiditis is the predominant factor operant in Mr. Bryan's complaints.
The evidence showed that the claimant was not seen by a physician until July 26, 2001, when he was seen by Dr. William Ackerman, another Little Rock pain specialist, at the direction of the Employer. Following his evaluation of the claimant, Dr. Ackerman wrote a report which assessed that claimant's complaint was that of "failed back syndrome." In a December 21, 2001 letter to the claimant, Dr. Ackerman noted:
I have reviewed your medical records. After review of the same, it is my medical opinion that you are not a candidate to return back to gainful employment. You have some difficulty driving as well as doing normal activities of daily living around your residence. I have attempted to see if there is a categorical occupation that you can do. It is my medical opinion that you are unable to return back to any gainful employment. You are unable to stand for any length of time. You have difficulty sitting. Most occupations will require either sitting, standing, or being able to move. Furthermore, you will require narcotic medications for the rest of your life. Ultimately, you may be a candidate for a subarachnoid drug delivery system.
On July 12, 2001, the claimant was seen by Ms. Chelle Williams, a case consultant with Corvel, a company hired by the Employer for an initial vocational assessment. Ms. Williams testified during the course of the hearing in this claim that at the time of her initial contact, the claimant was still receiving medical treatment, and as such vocational assessment was postponed. In October 2001, the claimant underwent a second functional capacity evaluation by Ms. Williams. This evaluation, however, left the claimant weak and in pain according to his testimony, and some of the activities had to be stopped when he was unable to complete them. The evaluation stated that the claimant could perform work at a light, medium activity level, and that his physical restrictions should be any lifting of 45 pounds or more from below the knees. At the hearing, Ms. Williams testified that she believed this evaluation was a bit of an overestimate, and that she looked for possible job leads that would be less physically demanding. She found several job leads in a light to sedentary category, which Dr. Ackerman signed off on as being within the claimant's physical abilities. The testimony in the record also made clear that while the claimant experienced some prior injuries, both work and non-work related, before the February 23, 1996 compensable injury, those did not have the same impact on his ability to earn wages or restrict his nonwork-related activities and hobbies to the extent and the degree that February 23, 1996 compensable injury did. In light of the testimony at the hearing, plus the documents entered into evidence, the Administrative Law Judge made the following findings.
The Arkansas Workers' Compensation Commission has jurisdiction of this claim.
On February 23, 1996, the relationship of employee-employer existed between the claimant and Respondent No. 1.
On February 23, 1996 the claimant earned wages sufficient to entitle him to weekly compensation benefits at the maximum applicable rates of $337.00/$253.00 for total disability/permanent partial disability benefits.
On February 23, 1996 the claimant sustained an injury arising out of and in the course of his employment.
The claimant's healing period ended January 1, 1999.
The claimant has a permanent physical impairment in the amount of 15% to the body as a whole.
The claimant has been rendered permanently and totally disabled within the purview of the Arkansas Workers' Compensation Act as a result of his February 23, 1996 compensable injury.
The claimant's disability status is the product of his 1996 compensable back injury and the Second Injury Fund, Respondent No. 2, has no liability in this claim.
The November 17, 2000 emergency room visit to Wadley Regional Medical Center by the claimant was for emergency medical treatment which was reasonably necessary and related to claimant's compensable injury, pursuant to Ark. Code Ann. § 11-9-514(b).
The respondent shall pay all reasonable hospital and medical expenses arising out of the injury of February 23, 1996.
The Respondent No. 1 has controverted the payment of wage loss disability benefits in excess of claimant's anatomical impairment of 15% and the payment of the $2,357.35 unpaid emergency room bill of Wadley Regional Medical Center.
II.
A.
The first issue before the Commission is whether the claimant is permanently disabled and thus entitled to additional benefits, or whether, as the Employer contends, that the claimant is able to work but is simply not inclined to do so. The employer argues that the claimant is not permanently and totally disabled because he is able to work, although not at the kind of jobs that he used to work, and is simply not inclined to find employment.
It is well settled that in considering the factors that may affect the employee's future earning capacity, the Courts consider a claimant's motivation to return to work as a lack of interest or negative attitude, which would impede an accurate assessment of the claimant's loss of earning capacity. Ellison v. Therma Tru, 71 Ark. App. 410, 30 S.W.3d 769 (2000), City of Fayetteville v. Guess, 10 Ark. App. 313, 663 S.W.2d 946 (1984). In arguing that the claimant is able to work and is simply not inclined to find work, the Employer points to the functional capacity evaluation that shows that the claimant is able to work at a light, medium level with a restriction of a 45-pound lifting limit from below his knees. It should be noted that Ms. Williams, the case coordinator for Corvel which was hired by the Employer, testified that even she thought that this evaluation was an over-estimate for the claimant.
In further support of its position, the Employer points to three job leads that the claimant was presented with for open positions of counter attendant at a dry cleaners, a telephone solicitor, and a service writer. The Employer argues that the claimant's treating physician, Dr. Ackerman, reviewed these job descriptions beforehand and with respect to each, verified that the job was within the claimant's physical abilities. Yet in progress notes made some three months before he signed off on these job descriptions, Dr. Ackerman stated that it was his medical opinion that the claimant would be unable to return to work. "You are unable to stand for any length of time. You have difficulty sitting. Most occupations require either sitting, standing, or being able to move," Dr. Ackerman opined in a December 2001 letter. The Employer points to these job leads and the fact that Dr. Ackerman signed off on them as being within the claimant's physical abilities in support of its argument that the claimant's "obvious intention [is] to retire and take himself out of the active work force."
We do not see any evidence in the record, however, to support this contention and the Employer does not point to any specific page in the record to support its assertion. The only real evidence the Employer points to is the testimony by Ms. Williams. She stated at the hearing that in the claimant's later applications for employment, he volunteered that he had been terminated because of his disability. She added that such disclosures "kind of sabotages your opportunity when you indicate that you have a physical disability that in your opinion prevents you from working." The Employer, in its brief, used that language to state that "it appears that the claimant may have attempted to `sabotage his opportunity to get a job'." Although in support of an objection at the hearing, the Employer's attorney stated that Ms. Williams did not testify that the claimant did in fact commit such sabotage.
In Buford v. Standard Gravel Company, 68 Ark. App. 162, 5 S.W.3d 478 (1999), the Court of Appeals criticized the Commission for finding fault with a disabled worker for having filled out such employment applications truthfully with respect to his disability. There the Court stated:
The commission seemed to take offense at Buford's testimony that he filled out the employment application forms truthfully, and that he considers himself disabled. Had he been untruthful or falsely misinterpreted his physical condition in obtaining employment, and, thereafter, sustained another work-related injury, the employer could have claimed that it was protected from liability by the Shipper's Transport defense.Buford, 68 Ark. App. at 169 (citing Shippers Transport of Georgia v. Stepp, 265 Ark. 365, 578 S.W.2d 232 (1979)). In light of this, we cannot say that it was the claimant's intent to sabotage any potential employment opportunities by alerting possible employers of his disability status.
Employer also points to the fact that while the claimant did fill out employment applications, he never followed up on them after receiving word from the businesses to which he applied. The Employer sees this as a clear indication that he is not motivated to find work. However, it is not uncommon for potential employees to take an unstated "don't call us, we'll call you" approach to applicants. To many it becomes clear that if one has not received any response from a potential employer after a few weeks, that that is the employer's answer.
In the final analysis, the Employer's argument is that the claimant is able to work, but that he just will not. To the contrary, the claimant's work history has shown more than a willingness to work. However, the claimant has testified that he is now in pain for quite a bit of his waking hours and that he spends about 80% of that time supine. He testified that he no longer hunts or fishes, which apparently were his favorite hobbies in his earlier days, and no longer keeps house to the extent that he used to. This testimony was supported by the testimony of claimant's daughter at the hearing. In our view, the claimant has met his burden of proof by a preponderance of the credible evidence that he is permanently disabled and that this disability prevents him from performing any meaningful work.
Buford, supra, is an illustrative case. There, the Commission denied a worker's claim for additional disability benefits in part because the Commission believed that he was "sadly lacking" in the motivation to return to work. (It should be noted that this case turned in part on the now-discarded "odd-lot doctrine," which is not applicable to the instant case. That discrepancy is not wholly relevant to the helpfulness of that case to the instant case because of the similarity of facts.) InBuford, the Court of Appeals reversed the Commission's decision, stating that the worker's history of work-related injuries, including lower back injuries that required multiple surgeries to correct as well as a solid work history, show that the worker did have the requisite motivation to work:
The evidence is clear that Buford sustained four serious work-related injuries: a crushed larynx, and three consecutive injuries to his lower back that required surgical correction. After each injury except the last one, Buford has gone back to work. Following the loss of his job as a "derrick hand" due to his larynx injury, he sought out a friend who taught him to weld. Following his first back surgery, he asked the doctor to give him a release to return to work; and he returned to his welding job following his second back surgery. These examples of Buford's conduct did not demonstrate a lack of motivation to work.
Buford, 68 Ark. App. at 168-69.
Because of the similarity in the work history of the claimants in the instant case and in Buford, we affirm the Administrative Law Judge's opinion that the claimant is permanently and totally disabled and is entitled to additional wage-loss benefits.
B.
The next issue to be decided then is whether the Second Injury Fund has any liability for the additional wage-loss benefits. The employer asserts that it does, citing the Supreme Court's three-part test for determining such liability. In Mid State Construction Co. v. Second Injury Fund, 295 Ark. 1, 746 S.W.2d 539 (1988), the Court stated that for liability to attach to the Fund, three hurdles must be overcome:
1. The employer must have suffered a compensable injury at his present place of employment;
2. Prior to that injury, the employee must have had a permanent partial disability or impairment; and
3. The disability or impairment must have combined with the recent compensable injury to produce the current disability status.
The Employer cites the claimant's many past injuries as evidence pointing to the Fund's liability, particularly the claimant's 1966 head injury while an employee at the Lone Star Army Depot in Texas for which, after his termination two years later, the claimant was living on Social Security Disability benefits and was voluntarily out of the job market.
The Administrative Law Judge took note of the claimant's numerous compensable and non-compensable injuries, but he could not say that any of them amounted to a previous permanent partial disability. He stated that the preponderance of the evidence showed that the present disability is a result of the 1996 compensable injury. The Administrative Law Judge pointed out that after the many injuries the claimant had sustained, he was able to return to work after each, even after the head injury in 1966.
In addition, the Judge stated that several of the injuries did not result in any lost time claims or any restrictions or limitations on his duties. The Judge indicated without expressly stating so that the second prong of the Court's test had failed, to-wit, that the claimant did not have a permanent partial disability prior to the 1996 compensable back injury, and that it was only after that injury that the claimant began to show evidence of a permanent disability. We agree with the Administrative Law Judge. In our opinion following a thorough review of the record, there is insufficient evidence to show a prior permanent disability at the time of the compensable injury in question to meet the Court's three-part test to establish the Fund's liability.
In light of the foregoing, we affirm the Administrative Law Judge's findings of facts and conclusions of law in this case. The Employer is hereby ordered and directed to pay the claimant permanent and total disability benefits. The Employer is further ordered and directed to pay all reasonably related medical, hospital, nursing, and other apparatus expenses, including the emergency room bill of November 17, 2000 generated as a result of a visit by the claimant to the Wadley Regional Medical Center as a result of the claimant's compensable injury of February 23, 1996. The claimant's attorney also is awarded the maximum attorney's fees on the controverted portion of this award pursuant to Ark. Code Ann. § 11-9-715 and in accordance with Holiday Inn West v. Coleman, 31 Ark. App. 224, 792 S.W.2d 345 (1990) and Ark. Code Ann. § 11-7-716. 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. 2002).
Since the claimant's injury occurred prior to July 1, 2001, the claimant's attorney's fee is governed by the provisions of Ark. Code Ann. § 11-9-715 as it existed prior to the amendments of Act 1281 of 2001. Compare Ark. Code Ann. § 11-9-715(Repl. 1996) with Ark. Code Ann. § 11-9-715 (Repl. 2002). For prevailing 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.
________________________________ OLAN W. REEVES, Chairman
________________________________ SHELBY W. TURNER, Commissioner
Commissioner McKinney dissents.
DISSENTING OPINION
I respectfully dissent from the majority opinion finding that the claimant proved by a preponderance of the evidence that he was permanently and totally disabled. Based upon my de novo review of the record, I find that the claimant has failed to prove by a preponderance of the evidence that he is entitled to permanent and total disability benefits. In my opinion, the claimant is only entitled to the 15% loss in wage-earning capacity that the respondents accepted and paid.
In my opinion the evidence does not support a finding of permanent and total disability. 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).
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 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.
The claimant's most recent functional capacity evaluation reveals that he is able to perform light to medium work. His only physical restriction was a 45-pound lifting limit from below his knees. The claimant has not been looking for work with anyone other than the respondent, nor has he shown that he has attempted to be retrained for any work. The claimant clearly has a total lack of interest and motivation to return to work. He considers himself to be retired. He can sit, stand, walk, do some light housework, drive, and perform many other functions. He has not shown any interest in pursuing vocational rehabilitation geared to specific jobs or otherwise. The claimant is a high school graduate, with some college credit, and has a diverse work history. He has good work experience and education, and has been evaluated as able to perform a light to medium position. He has developed a wide range of skills and has the functional capacity and experience to perform a variety of sedentary jobs.
Even before any efforts were made to assist the claimant in finding suitable employment, he had already made up his mind that he was not able to work. He was presented with job leads for the open positions of counter attendant telephone solicitor, and service writer. The claimant's treating physician, Dr. Ackerman, reviewed these job descriptions beforehand and, with respect to each, verified that the job was within the claimant's physical abilities.
Dr. Ackerman's opinion is that the claimant could work if he wanted to. The claimant has no reason to doubt Dr. Ackerman's opinions and has never complained or asked to change doctors.
Although the claimant went through the motions of filling out job applications, he conceded that he never followed up with any of the employers. It is clear that the claimant failed to make a bona fide effort to find work. It appears that the claimant may have attempted to "sabatoge (sic) his opportunity to get a job by indicating that he has a disability that presents him from working."
The Commission has consistently limited awards of wage-loss disability where, as here, the claimant has displayed a lack of motivation to return to work. See Fuller v. Exxon Tiger Mart, Inc., 1999 AWCC 379, Claim No. E312233 (Full Commission Opinion filed January 13, 1999); Raney v. Rheem Manufacturing Co.; 1999 AWCC 415, Claim No. E318271 (Full Commission Opinion filed February 17, 1999); Patterson v. Gwatney Chevrolet, Inc., 1998 AWCC 181, Claim No. E218555 (Full Commission Opinion filed May 18, 1998).
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).
The claimant has failed to prove by a preponderance of the evidence that he is entitled to any wage loss disability benefits over and above the 15% already accepted and paid by the respondent. In my opinion, the evidence demonstrates that the claimant lacks the requisite motivation to return to work. The claimant appears to be perfectly content with drawing $2,000 a month of Social Security and other benefits. The claimant has not genuinely applied for any work, although it is apparent that there are things he could do if he chose to do them. The evidence indicates that the claimant has a high school education, plus some college. He also has other types of vocational training.
The medical evidence also preponderates in favor of a finding that the claimant is able to work and is not entitled to any additional wage-loss disability benefits. The claimant sees Dr. Ackerman now only infrequently. A functional capacity assessment indicated that he can occasionally lift up to 60 pounds and can frequently lift 30 pounds. He can sit for at least two hours at a time. He has absolutely no manipulative, visual or communicative limitations. The vocational rehabilitation counselor found that the claimant had the type of work history and skills that could translate into other jobs. Although one of the reasons given by the claimant for his unemployability was an inability to sit for long periods, it was noted that he had no trouble sitting still during the hearing for almost 2½ hours.
While the fact that the claimant is presently receiving Social Security benefits does not preclude him from receiving permanent and total benefits or wage-loss benefits, it is clearly a factor that can be considered in assessing the effects of his injuries and is motivation to attempt to return to work. M.M. Cohn v. Haile, 267 Ark. 734, 589 S.W.2d 600 (Ark.App. 1979); Curry v. Franklin Electric, 32 Ark. App. 168, 798 S.W.2d (1990).
In light of the foregoing, given the claimant's obvious intention to retire and take himself out of the active workforce (despite his ability to perform light to medium work), I find that the claimant is entitled to the 15% permanent partial disability accepted and paid by the respondents.
Therefore, I must respectfully dissent from the majority opinion finding the claimant permanently and totally disabled.
__________________________________ KAREN H. McKINNEY, Commissioner