Opinion
CLAIM NO. F800723
OPINION FILED NOVEMBER 3, 2010
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE PHILLIP WELLS, Attorney at Law, Jonesboro, Arkansas.
Respondent represented by HONORABLE MELISSA WOOD, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Reversed.
OPINION AND ORDER
The respondent appeals a decision by the Administrative Law Judge finding that the claimant proved by a preponderance of the evidence that she sustained a 45% loss in wage earning capacity in addition to her permanent anatomical impairment rating. Based upon ourde novo review of the record, we find that the claimant has failed to meet her burden of proof. Accordingly, we reverse the decision of the Administrative Law Judge and find the claimant is not entitled to any wage loss disability benefits.
This matter has been before the Full Commission before. An opinion dated September 9, 2009, the Full Commission affirmed the Administrative Law Judge's finding that the claimant sustained compensable injuries to both of her shoulders on January 10, 2008. The respondents have paid all appropriate medical, temporary total, and permanent disability benefits. At this time, the claimant is requesting wage loss disability benefits in addition to her permanent anatomical impairment. After conducting ade novo review of the record, we find that the claimant has failed to meet her burden of proof.
The Arkansas Workers' Compensation Law provides that when an injured worker's disability condition becomes stable and no further treatment will improve that condition, the disability is deemed permanent. In order to be entitled to any wage loss disability in excess of permanent physical impairment, the claimant must first prove by a preponderance of the evidence that she sustained permanent physical impairment as a result of the compensable injury.Wal-Mart Stores, Inc. v. Connell, 340 Ark. 475, 10 S.W.3d 727 (2000); Needham v. Harvest Foods, 64 Ark. App. 141, 987 S.W.2d 278, (1998). If the employee is totally incapacitated from earning a livelihood at that time, she is entitled to compensation for permanent and total disability.See, Minor v. Poinsett Lbr. Mfg. Co., 235 Ark. 195, 357 S.W.2d 504 (1962). Objective and measurable physical or mental findings, which are necessary to support a determination of "physical impairment" or anatomical disability, are not necessary to support a determination of wage loss disability.Arkansas Methodist Hosp. v. Adams, 43 Ark. App. 1, 858 S.W.2d 125 (1993).
A worker who sustains an injury to the body as a whole may be entitled to wage-loss disability in addition to his anatomical loss.Glass v. Edens 233 Ark. 786, 346 S.W.2d 685 (1961). The wage-loss factor is the extent to which a compensable injury has affected the claimant's ability to earn a livelihood. Emerson Electric v. Gaston, 75 Ark. App. 232, 58 S.W.3d 848 (2001);Cross v. Crawford County Memorial Hosp., 54 Ark. App. 130, 923 S.W.2d 886 (1996). The Commission is charged with the duty of determining disability based upon a consideration of medical evidence and other matters affecting wage loss, such as the claimant's age, education, and work experience. Emerson Electric, supra; Eckhardt v. Willis Shaw Express, Inc., 62 Ark. App. 224, 970 S.W.2d 316 (1998); Bradley v. Alumax, 50 Ark. App. 13, 899 S.W.2d 850 (1995). Such other matters may also include motivation, post-injury income, credibility, demeanor, and a multitude of other factors. Curry v. Franklin Electric, 32 Ark. App. 168, 798 S.W.2d 130 (1990); City of Fayetteville v. Guess, 10 Ark. App. 313, 663 S.W.2d 946 (1984);Glass, supra. A claimant's lack of interest in pursuing employment with her employer and negative attitude in looking for work are impediments to our full assessment of wage loss.Logan County v. McDonald, 90 Ark. App. 409, 206 S.W.3d 258 (2005); Emerson Electric,supra. In addition, a worker's failure to participate in rehabilitation does not bar her claim, but the failure may impede a full assessment of his loss of earning capacity by the Commission.Nicholas v. Hempstead Co. Mem. Hospital, 9 Ark. App. 261, 658 S.W.2d 408 (1983). The Commission may use its own superior knowledge of industrial demands, limitations, and requirements in conjunction with the evidence to determine wage-loss disability. Oller v. Champion Parts Rebuilders, 5 Ark. App. 307, 635 S.W.2d 276 (1982).
Finally, Ark. Code Ann. § 11-9-102(4)(F)(ii) (Supp. 2005) provides:
(a) Permanent benefits shall be awarded only upon a determination that the compensable injury was the major cause of the disability or impairment.
(b) If any compensable injury combines with a preexisting disease or condition or the natural process of aging to cause or prolong disability or a need for treatment, permanent benefits shall be payable for the resultant condition only if the compensable injury is the major cause of the permanent disability or need for treatment.
"Major cause" is defined as more than 50% of the cause. Ark. Code Ann. § 11-9-102(14) (Supp. 2005).
Further, "disability" is defined as an "incapacity because of compensable injury to earn, in the same or any other employment, the wages which the employee was receiving at the time of the compensable injury." Ark. Code Ann. § 11-9-102(8) (Supp. 2005).
Considering the context in which the terms "permanent benefits" and "disability" are used in Ark. Code Ann. § 11-9-102(4)(F)(ii), the amendments of Act 796 clearly impose a requirement on a claimant seeking compensation for a permanent decrease in earning capacity to show that the compensable injury was the major cause of any decrease in earning capacity to obtain an award of permanent disability benefits.
It appears that the claimant has multiple pre-existing injuries and problems. In fact, the claimant applied for social security disability in 1999 before going to work for the respondent employer. The claimant currently has a pending application for social security disability benefits.
The evidence demonstrates that the claimant has had three different workers' compensation injuries. The claimant had a C3-4 and C6-7 anterior cervical discectomy and fusion in April of 2003. She had left shoulder surgery in 2005. She has also been diagnosed with thoracic outlet syndrome. The claimant was diagnosed in 2006 with "adjustment disorder with mixed disturbance of anxiety and depression, psychological factor affecting pain condition, avoidant personality traits, impingement left rotator cuff, irritable bowel syndrome, periodic migraines, gastric reflux, periodic musculoskeletal hip/leg pain." In September of 2007, she called White River Rural Health and requested a prescription for Mepergan and Diovan due to pain from a motor vehicle accident. In November of 2007, she called asking for Lyrica for nerve pain. The claimant was also complaining at that time of migraines due to neck pain, anxiety and back pain. On January 1, 2008, the claimant fell at home, injuring her right hip, neck and back. At the time of her compensable shoulder injuries, she was already taking Vicodin at night for back pain. She reported she was still "down in her back" on January 16, 2008.
Following her compensable January 10, 2008 shoulder injuries, the claimant has continued to have physical problems unrelated to her workers' compensation claim. On January 22, 2008, she called her family doctor and reported that her back was "really hurting" and that she was unable to go back and drive her truck. The claimant also requested a referral to a neurosurgeon for her back on January 24, 2008, following a lifting incident causing stabbing pain. She was taken off work from January 17, 2008, through February 24, 2008, due to her back condition. In February of that year, the claimant saw neurosurgeon Dr. John Brophy for her neck and back and was told she needed conservative management with anti-inflammatories and physical therapy. The claimant did not like what Dr. Brophy had to say and indicated that she would see Dr. Ricca.
Physical therapy notes from June of 2008 reveal that the claimant complained of neck and back pain, with the back being worse than the neck. The claimant's lower back pain was worsened if she lifted five pounds or bent forward at the waist. She reported: "If I walk about 30 minutes my right leg feels like it is going to fall off. I start hurting in my right buttock and goes down in my right buttock and goes down the back of my leg."
In November of 2008, the claimant complained to Dr. Eubanks, a doctor she had been referred to for chronic back pain, that it hurt her to sweep out a trailer, to bend over to check oil, and to work on cars or wash dishes. The claimant did report to Dr. Eubanks that she was able to sit in her truck "without much problem". It was further noted that the claimant had "exaggerated pain response to palpation over the back, the buttocks, the SI region, and trochanters." Dr. Eubanks opined that she had an "extremely poor prognosis in terms of having symptom relief due to multiple obvious reasons as enumerated above, specifically with issue desiring a disability evaluation, non-physiologic findings and complaints, multiple, multiple, multiple diffuse pain syndromes, her obesity and her unwillingness to try all avenues of treatment (specifically pain clinic)." The claimant has since then gone for pain management associated with her back.
Additionally, the claimant has been diagnosed with fibromyalgia. When she went for follow-up care associated with her shoulders with Dr. Guinn on January 21, 2009, Dr. Guinn opined that the claimant's shoulder complaints were possibly coming from her fibromyalgia. He declared her to be a maximum medical improvement in March.
The evidence demonstrates that the claimant has been released to return to work as a truck driver. The doctor treating the claimant released her to return to work and did not put any restrictions on her with regard to her shoulders. The claimant was at maximum medical improvement on February 25, 2009, and received a 5% permanent anatomical impairment at that time. The respondents have paid that rating.
The claimant has done sedentary work in the past. She had her own legal/medical transcription company that she ran for 12 years that was very successful. There is no reason that the claimant could not work again as a legal/medical transcriptionist or as a truck driver. The only limitations regarding truck driving are the claimant's own self-limiting allegations that she cannot drive the truck.
Therefore, when we consider the fact that the claimant is a relatively young age, her education, work history, permanent restrictions and limitations as well as all other matters reasonable expected to affect her future earning capacity, we cannot find that the claimant is entitled to any wage loss disability benefits. The claimant's current problems are due to medical conditions that are completely unrelated to her compensable injury with the respondent employer. The claimant has multiple other pre-existing injuries and problems including fibromyalgia, depression, anxiety, irritable bowel syndrome, migraines and thoracic outlet syndrome. The claimant cannot prove the her compensable injury was the major cause of current disability. Therefore, we cannot find that the claimant is entitled to any wage loss disability benefits in addition to her permanent anatomical impairment. Accordingly, we reverse the decision of the Administrative Law Judge. This claim is hereby denied and dismissed.
IT IS SO ORDERED.
_______________________________ A. WATSON BELL, Chairman
_______________________________ KAREN H. McKINNEY, Commissioner
Commissioner Hood dissents.
DISSENTING OPINION
After my de novo review of the entire record, I must respectfully dissent from the majority opinion. I would award the claimant a 45% loss in wage-earning capacity, in addition to her permanent impairment rating.
Arkansas Workers' Compensation Law provides that when an injured worker's disability condition becomes stable and no further treatment will improve that condition, the disability is deemed permanent. A worker who sustains an injury to the body as a whole may be entitled to wage-loss disability in addition to his anatomical loss. Glass v. Edens, 233 Ark. 786, 346 S.W.2d 685 (1961). The wage-loss factor is the extent to which a compensable injury has affected the claimant's ability to earn a livelihood. Emerson Electric v. Gaston, 75 Ark. App. 232, 58 S.W.3d 848 (2001). In order to be entitled to any wage-loss disability in excess of permanent physical impairment, the claimant must first prove by a preponderance of the evidence that he sustained permanent physical impairment as a result of the compensable injury. Wal-Mart Stores, Inc. v. Connell, 340 Ark. 475, 10 S.W.3d 727 (2000); Needham v. Harvest Foods, 64 Ark. App. 141, 987 S.W.2d 278 (1998). If the employee is totally incapacitated from earning a livelihood at that time, he is entitled to compensation for permanent and total disability.See Minor v. Poinsett Lbr. Mfg. Co., 235 Ark. 195, 357 S.W.2d 504 (1962). Objective and measurable physical or mental findings, which are necessary to support a determination of "physical impairment" or anatomical disability, are not necessary to support a determination of wage-loss disability.Arkansas Methodist Hosp. v. Adams, 43 Ark. App. 1, 858 S.W.2d 125 (1993).
The Commission is charged with the duty of determining disability.Cross v. Crawford County Memorial Hospital, 54 Ark. App. 130, 923 S.W.2d 886 (1996). In determining the extent of permanent disability, the Commission may consider, in addition to the evidence of permanent anatomical impairment, claimant's general health, age, education, work experience, attitude, interest in rehabilitation, degree of pain, and any other matters reasonably expected to affect his future earning capacity. Ark. Code Ann. Sec. 11-9-522(b)(1); Glass,supra; Oller v. Champion Parts Rebuilders, Inc., 5 Ark. App. 307, 635 S.W.2d 276 (1982); Arkansas Wood Products v. Atchley, 21 Ark. App. 138, 729 S.W.2d 428 (1987).
For an award of permanent benefits, the compensable injury must be the major cause of the disability or impairment. If the injury combines with a pre-existing disease or condition, or the aging process, to cause or prolong the disability, permanent benefits are available only if the compensable injury is the major cause of the permanent disability or need for treatment. Ark. Code Ann. Sec. 11-9-102(4)(F)(ii). Major cause is defined as more than fifty percent (50%) of the cause. Ark. Code Ann. Sec. 11-9-102(14).
The claimant was 48 years old at the time of the hearing. She demonstrated a willingness to work and to train, as evidenced by twelve years of work in her own transcription business and then training to become a commercial truck driver, which she did from 2001 until her injury forced her to stop in 2008. She returned to physically demanding work after significant injuries in the past. She also demonstrated her willingness to work, by continuing to look for work in the trucking industry and in transcription, as well as other areas after her 2008 injury. Her education was basic. Her general health was complicated by a large number of conditions, both physical and mental, which she managed with medications and other methods. The pain medications which she used to manage her shoulder problems negatively affected her ability to return to work as a commercial truck driver, as they were narcotic. Her symptoms, as well as her medications, affected her ability to operate her own car, negatively impacting her ability to get to a job if she could find one. She lived in Jonesboro, Arkansas. The claimant's ability to earn wages dropped to zero after her injury. Despite being a willing worker with some variety in her experience, the claimant's physical limitations to her arms, coupled with her age, experience, medications, general health, and residence, justify an award of 45% wage loss. I disagree with the majority on the issue of wage loss, completely.
The majority also found that the claimant did not meet the major cause requirement. Again, I disagree.
The claimant was able to work until she injured her shoulders in January 2008. While the claimant has a constellation of health problems, they did not limit her ability to perform her job as a truck driver for the respondent-employer prior to January 2008. After the January 2008 incident, the claimant could no longer perform her job. The majority has found that the claimant's January 2008 injury was not the major cause of her disability and impairment. This claim is similar to Pollard v. Meridian Aggregates, 88 Ark. App. 1, 193 S.W.3d 738 (2004) in which the Court of Appeals applied Ark. Code Ann. § 11-9-102(4)(F)(ii). That statute provides:
(ii) (a) Permanent benefits shall be awarded only upon a determination that the compensable injury was the major cause of the disability or impairment.
(b) If any compensable injury combines with a preexisting disease or condition or the natural process of aging to cause or prolong disability or a need for treatment, permanent benefits shall be payable for the resultant condition only if the compensable injury is the major cause of the permanent disability or need for treatment.
"Major cause" is defined as more than fifty percent of the cause, and a finding of major cause shall be established according to the preponderance of the evidence. Ark. Code Ann. § 11-9-102(14).
In Pollard, the Commission had found that the claimant's asymptomatic pre-existing stenosis condition, which was made symptomatic by the work injury, was the major cause of the disability and impairment, not the work injury. ThePollard claimant had back surgery in 1985 which was successful. He had no problems with his back until his work-related injury in March 2000. Since then, he had numbness and pain. He could not stand or sit for any length of time. He had to use a cane. He could not return to any of his old jobs, and there was no job he could do full time. He had surgery on October 10, 2000. The Court of Appeals stated that the evidence demonstrated that the March 2000 work-related aggravation was the major cause of some anatomical impairment, and there is no evidence to the contrary. "It is clear that the need for surgery and resulting impairment would not have occurred but for the work-related aggravation." The Court of Appeals emphasized that, even in light of a doctor's opinion that the "preexisting disease accounted for 80% of his disease process," this does not resolve whether or not the compensable injury was the major cause of an impairment, and that it was significant that the back disease did not require surgery, or any other medical treatment, prior to the compensable aggravation.
The claimant has many physical and mental diagnoses. However, she and the respondents' witness both testified that she was able to perform her job prior to the work-related incident, similarly to thePollard claimant. The respondents' witness, the Safety Director, was unaware of the claimant's pre-existing problems. The claimant had more pre-existing conditions that the Pollard claimant, but was able to do her job. Her shoulders did not interfere with her ability to drive an eighteen-wheel tractor trailer rig. However, similarly to the Pollard claimant, upon the work-related accident, the claimant was unable to perform her job due to her symptoms, bilateral shoulder and arm pain and numbness, and medications for those symptoms. Her shoulders required surgery, which improved her symptoms, but did not resolve them completely. The claimant testified that she had weakness, numbness and pain when using her arms, when using her arms above shoulder height, and when in a position to type. She experienced weakness operating her car's steering wheel. She required the use of narcotic pain medication to manage her symptoms. She was left with a permanent impairment rating for her shoulders and disability including numbness, pain, weakness, and the effects of her pain medication.
With or without any pre-existing condition, related or unrelated to her shoulders, the claimant's work-related accident caused her disability. Absent the work-related accident, the claimant would have continued to be able to perform her job as a commercial truck driver. The claimant's work-related injury is the major cause of her disability and impairment. For these reasons, I disagree with the majority.
After my de novo review of the entire record, I find that the circumstances justify an award of 45% wage loss, in addition to her permanent impairment rating, and that the compensable injury is the major cause of her disability.
For the foregoing reasons, I must respectfully dissent from the majority opinion.