Opinion
CLAIM NO. E104546
OPINION FILED SEPTEMBER 28, 2004
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by HONORABLE DALE GRADY, Attorney at Law, Bryant, Arkansas.
Respondents represented by HONORABLE PHILLIP CUFFMAN, Attorney at Law, Little Rock, Arkansas.
Decision of the Administrative Law Judge: Affirmed as modified.
OPINION AND ORDER
The respondents appeal and the claimant cross-appeals an administrative law judge's opinion filed October 27, 2003. The administrative law judge found, among other things, that the claimant had a permanent physical impairment "in the about (sic) of 53% to the body as a whole." The administrative law judge found that the claimant had suffered a change of physical condition, and that the claimant was permanently and totally disabled. After reviewing the entire record, the Full Commission finds that the claimant sustained a change in physical condition subsequent to the Commission's prior award of permanent impairment and wage-loss disability. We find that the claimant has sustained a total anatomical impairment in the amount of 33% and additional wage-loss disability in the amount of 13% over the 20% wage-loss disability previously awarded. The Full Commission therefore affirms, as modified, the opinion of the administrative law judge.
I. HISTORY
Cecil Dixon, age 45 (9-20-59), testified that he had received a general education diploma. Mr. Dixon testified that he worked at an aluminum plant before becoming employed with the respondents, where the claimant worked in oil fields. The parties have stipulated that the claimant sustained a compensable injury "to his cervical area and shoulder" on March 15, 1991. The claimant testified, "I just got knocked off the rig, and I guess I landed on my shoulder." The record indicates that Dr. John R. Gregory performed shoulder surgery in September 1991.
The impression from an MRI of the cervical spine in February 1992 was "posterior herniation of the C3-4 and 5-6 discs." The claimant consulted with Dr. Donald R. Smith on March 16, 1992, and Dr. Smith's impression was "Cervical disc disease with cervical radiculitis and radiculopathy. I do feel that this disorder is related to the patient's initial injury and that this problem was incurred at the same time that his right shoulder injury was incurred. . . . I do feel that he will need to undergo surgical therapy for this." Dr. Smith subsequently performed an anterior diskectomy at C3-C4 and C5-C6. An x-ray of the cervical spine taken September 16, 1992 showed "previous discectomy and fusion at 3-4 and 5-6. Good fusion is noted."
Dr. Gregory reported on October 14, 1992, "This patient returns today for follow-up. He has been through his Rehab and has reached his final maximum medical improvement. We will get with the insurance company and get a disability rating for his shoulder." Dr. Smith wrote on October 19, 2002, "I do feel that Mr. Dixon has reached maximum medical improvement. I do feel that he has residuals related to his previous cervical disc disease and the anterior cervical diskectomy at two levels. I feel that his degree of impairments based on the fusion of two levels in the cervical area and slight residual radicular component is equal approximately 15 percent total body disability. I have not included any consideration of the right shoulder disorder in this percentage rating. I will leave any additional ratings for the shoulder to the discretion of Dr. Gregory." In November 1992, Dr. Gregory assigned "an 8 percent impairment of the upper extremity secondary to his shoulder injury. This would be rated as a 5 percent impairment of the person as a whole."
Dr. Jeffrey T. DeHaan performed "shoulder anterior reconstruction" in March 1993. Dr. DeHaan wrote on June 29, 1993, "He is doing about as well as he can and I think, at this point, has reached his maximum medical improvement. We will go ahead and release him from routine follow-up. He is to return here on a prn basis. As far as disability rating is concerned, he carries with him a 10% permanent partial disability rating to that RUE."
Dr. Smith opined in October 1993, "I feel that Mr. Dixon has fairly extensive changes in his cervical area secondary to the multiple previous problems and the post-operative status from anterior cervical diskectomy and fusion at multiple levels."
Mr. Dixon claimed entitlement to additional worker's compensation, contending that he was permanently and totally disabled. The respondents contended that the claimant had received all benefits for which he was entitled. Hearing before the Commission was held in March 1994. The claimant testified that he had gone to work in a battery store "and I started having problems with my neck." The claimant also testified that he had received vocational-technical training, apparently in the area of heating and air conditioning.
An administrative law judge filed an opinion on August 26, 1994. The ALJ found that the claimant had sustained an accidental injury on March 15, 1991, and that the claimant's healing period ended on June 29, 1993. The ALJ found that the respondents "shall pay all reasonable and related medical benefits." The ALJ further found, "As a result of the injury the claimant has sustained an anatomical impairment of 20% to the body as a whole. The claimant has shown by a preponderance of the evidence that in addition to the impairment he has sustained a wage-loss disability of 20% to the body as a whole. His total permanent partial disability is 40% to the body as a whole." There was no appeal of the administrative law judge's opinion.
Dr. DeHaan wrote on November 11, 1994, "Radiographs of his C-spine show marked degenerative changes post-surgical to his C-spine. He's got a fusion at 2-levels and definite osteophytic changes at the intervening disc level."
The parties deposed Dr. Donald R. Smith on September 14, 2000. Dr. Smith agreed that he performed an anterior cervical discectomy with fusion in March 1992. The respondents' attorney queried Dr. Smith:
Q. I know that the initial work you did on this gentleman was cervical surgery, and he had a procedure performed back in 1992. You did another cervical procedure on him this year; is that correct?
A. I'll need the date of that. Just one moment and I'll retrieve it. That date was 29 August, so that's not very long ago at all.
Q. In your estimation, was the cervical surgery that you did in August of this year related directly to the injury he suffered or any sequel to it and the procedure you performed back in 1992?
A. I believe that it's related to a sequel. And by that, I don't believe that the disc at C4 and C5 was initially damaged at that injury. The reason for that statement is that I have my initial scans which I discussed earlier, and the changes specifically were in the levels on either side of that; that is C3-4 and C5-6, not in C4 and C5. I have studies that showed that disc to be not severely damaged at that time. However, it is well recognized that to perform the surgery I performed has a risk factor. And by that, I mean I operated on two levels and left a normal level intervening between there. Anytime a fusion is performed, even a single level or two levels together, there does appear to be some additional stress then placed on the first adjacent normal level. That is, the levels that retain their ability to move are subjected to the stress of excess movements by having a fixed segment adjacent to that, which increases the amount of leverage placed on the still relatively normal and moving level.
So it's a well recognized fact in neurosurgery and orthopedic surgery that we can see so-called adjacent levels break down subsequently as a result of that added stress. And unfortunately, the incidence of that breakdown is considerably higher if that segment happens to be located between two such fusions, as in this case. So after a fairly long and rambling explanation, I will say that in my mind the subsequent changes at C4 and C5 were probably related to the fusions that were necessary because of the initial injury. . . .
Q. Would it be your opinion within a reasonable degree of medical certainty that this condition, this good disc in between the two that were worked on, developed a problem as a sequel to the work you had done on the other two discs?
A. Yes, that is my opinion.
Counsel for the claimant asked Dr. Smith:
Q. And again, as I understand your testimony with regard to the surgery performed on August the 30th, in simple terms you're telling us that, if he hadn't had the injury back in `91 and the surgery that you performed in `92, at least in your opinion within a reasonable degree of medical certainty, he wouldn't have had to have this procedure performed August the 30th?
A. I lost you in the negatives, but it is my opinion that in all probability the latest disc, that is the C4-C5 disc, was related to the performance of the earlier fusions and, therefore, indirectly related to the events of the accident.
The claimant again claimed entitlement to additional worker's compensation, and a pre-hearing order was filed in September 2001. The claimant contended that he had sustained an injury to his back in the March 1991 incident. Hearing before the Commission was held in October 2001. The claimant testified that he had gone into business for himself, in the area of air conditioning and refrigeration. The claimant testified that he had undergone lower-back surgery with instrumentation in May 2000. The respondents' attorney agreed at hearing that the respondents were liable for both surgeries involving the claimant's neck.
Dr. Barry M. Green wrote on October 10, 2001:
Mr. Dixon was re-evaluated at HealthSouth Evaluation Center on 10/10/2001 for an impairment rating. On 6/26/2001, I rated Mr. Dixon for the cervical spine, and he received a 25% whole person impairment because he has had a cervical fusion and 10% whole person impairment for winging of the scapula due to excessive nerve injury. There are combined for a total of 33% whole person impairment. . . .
The administrative law judge filed an opinion on January 28, 2002. The ALJ found, "On March 15, 1991, the claimant sustained an injury to his neck, shoulder and low back arising out of and in the course of his employment." The ALJ found, "The claimant was temporarily totally disabled for the period beginning April 13, 2000 through October 10, 2001 and October 17, 2001 to a date to be determined." The ALJ ordered the respondents to pay for reasonably necessary medical treatment. The respondents appealed to the Full Commission, specifically the ALJ's finding "that the claimant's lumbar injury is compensable."
In an opinion filed October 31, 2002, the Full Commission reversed the decision of the administrative law judge. The Full Commission found, "the claimant failed to prove by a preponderance of the evidence that the complaints relative to his lumbar spine arose out of the March 1991 accident."
Mr. Dixon again claimed entitlement to additional worker's compensation. The claimant filed a Form AR-C on February 24, 2003, claiming, among other things, a "change of condition." Another pre-hearing order was filed on May 23, 2003. The claimant contended that he had sustained anatomical impairment in the amount of 53% in addition to 20% wage-loss disability, "so we've got a total right there of 73, so we are saying additional wage loss is actually permanent total." The respondents contended that they had paid all appropriate benefits, including temporary total disability compensation and reasonably necessary medical treatment. The respondents contended that the claimant was not entitled to additional wage-loss disability. The respondents contended that "the right hip and leg complaints and hematoma are unrelated to the original accident. Pain Management treatment has been provided to the claimant and respondents continue to recognize reasonable and necessary care." The respondents also essentially contended that there had not been "a change in physical condition" pursuant to Ark. Code Ann. § 11-9-713.
Hearing before the Commission was held on July 31, 2003. The claimant testified that he was addicted to Oxycontin. With regard to his ability to work, the claimant testified, "I can't hold up anymore." The claimant testified that he was earning "way less" money than before, and that the current status of his work was "Hardly anything." The claimant testified on cross-examination:
Q. What determines when you can and can't work?
A. How I feel when I get up.
Q. Okay. So some days are better than others?
A. Yes, sir.
Q. When is the last time that you have done anything along those lines?
A. I may go out and piddle for 30 minutes, but as far as getting out and working, no.
The administrative law judge found that the claimant had been paid appropriate temporary total disability compensation. The ALJ found that the claimant failed to prove "that he suffered injuries to his right hip/leg or a hematoma on March 15, 1991." The claimant does not appeal these findings. The ALJ found that treatment provided the claimant from Dr. DeHaan, Dr. Antoon, and Dr. Calodney was reasonably necessary, as well as an emergency-room visit in July 1993. The ALJ found that the claimant proved he was entitled to a pain management program and "intrathecal pain pump trial." The ALJ found, "Claimant's addiction to the narcotic pain medication, OxyContin, is a compensable consequence of his March 15, 1991, compensable injuries, and respondents are liable for treatment relative to same, to include the cost incurred by the claimant under the care of Dr. Mary C. Weatherby, a neuropsychologist." The respondents do not appeal any of these findings.
Finally, the administrative law judge found:
15. The claimant has a permanent physical impairment in the about (sic) of 53% to the body as a whole.
16. When the claimant's age, education, permanent restrictions and limitations are considered, the evidence preponderated that claimant has suffered a change of physical condition such that he has been rendered permanently and totally disabled as a result of his compensable injuries of March 15, 1991.
17. The change in claimant's physical condition subsequent to his August 29, 2000, second cervical surgical procedure, limits the amount of work that claimant can do such that he falls within the odd-lot category with respect to permanent total disability.
In their Notice of Appeal, the respondents appeal the administrative law judge's decision that the claimant was permanently and totally disabled. The respondents also contend that the ALJ "erred as a matter of law in determining that the claimant suffered a change in physical condition that entitled him to an award of wage loss benefits exceeding what was previously awarded." In his Notice of Cross-Appeal, the claimant states that the ALJ "failed to specifically find that claimant was thus entitled to be paid the `total disability rate' on all previously paid PPD benefits and the maximum attorney fee on same, all being accrued, as well as the total disability rate prospectively also subject to attorney fees for cl's atty." Neither party briefs the Full Commission.
II. ADJUDICATION
A. Anatomical Impairment
Arkansas law as existing prior to the enactment of Act 796 of 1993 applies in this case, because the claimant sustained a compensable injury in March 1991. Permanent impairment, which is usually a medical condition, is any permanent functional or anatomical loss remaining after the healing period has been reached. Johnson v. General Dynamics, 46 Ark. App. 188, 878 S.W.2d 411 (1994), citing Ouachita Marine v. Morrison, 246 Ark. 882, 440 S.W.2d 216 (1969). The claimant bears the burden of proving that he is entitled to an award for a permanent physical impairment. Ark. Code Ann. § 11-9-704(c)(1)(1987) provides that "any determination of the existence or extent of physical impairment shall be supported by objective and measurable physical or mental findings."
In the present matter, the claimant sustained a compensable injury "to his cervical area and shoulder" in March 1991. The claimant underwent shoulder surgery in September 1991. The claimant underwent a cervical diskectomy in about September 1992. The claimant underwent another shoulder surgery in March 1993. There were various impairment ratings assigned over the course of the claimant's treatment. In August 1994, an administrative law judge found that the claimant "sustained an anatomical impairment of 20% to the body as a whole." The ALJ assigned wage-loss disability in the amount of "20% to the body as a whole." There was no appeal of this decision, which is therefore final and res judicata. See, Ark. Code Ann. § 11-9-711(a)(1987). The claimant sustained 20% anatomical impairment and 20% wage-loss disability as a result of his March 1991 compensable injury.
The record indicates that Dr. Smith performed additional cervical surgery in August 2000. In October 2001, Dr. Green assigned a "33% whole person impairment" for "a cervical fusion" and "winging of the scapula due to excessive nerve injury." The record does not indicate whether or not Dr. Green was aware of the second cervical surgery performed by Dr. Smith. In any event, the record does not show that Dr. Green was assigning a 33% impairment in addition to the previous 20% anatomical impairment, which has been decided and is res judicata. The administrative law judge apparently added Dr. Green's entire 33% rating to the pre-existing 20% rating, for a total anatomical impairment rating of 53%. This was error and is not supported by the record. Instead, the preponderance of evidence shows that the claimant sustained a 13% anatomical impairment, in addition to the 20% anatomical impairment assessed by the Commission in 1994. Based on our de novo review of the entire record, the Full Commission finds that the claimant has sustained a total anatomical impairment in the amount of 33%.
B. Change In Physical Condition
Ark. Code Ann. § 11-9-713(1987) provides:
(a)(1) Except where a joint petition settlement has been approved, the Workers' Compensation Commission may review any compensation order, award, or decision.
(2) This may be done at any time within six (6) months of termination of the compensation period fixed in the original compensation order or award, upon the commission's own motion or upon the application of any party in interest, on the ground of a change in physical condition or upon proof of erroneous wage rate.
Although Ark. Code Ann. § 11-9-713 grants the Commission the authority to modify a final award subsequent to the expiration of the time for appeal, the Commission may only do so upon a showing of a change in physical condition or proof of an assignment of an erroneous wage rate.United States Fidelity Guar. Co. v. Brewer, 52 Ark. App. 214, 916 S.W.2d 773 (1996), citing Cooper Indus. Prod. v. Meadows, 5 Ark. App. 205, 634 S.W.2d 400 (1982).
In the present matter, the preponderance of evidence shows there has been a change in physical condition. This change of physical condition required Dr. Smith to perform surgery at C4-C5 in September 2000. As we have discussed supra, an administrative law judge found in August 1994 that the claimant had sustained anatomical impairment in the amount of 20% and wage-loss disability in the amount of 20%. This finding is res judicata. However, Dr. Smith opined at deposition in September 2000 that the claimant's disc at C4 and C5 had undergone additional stress as a result of the claimant's compensable injury and resulting surgeries. Dr. Smith stated, "in my mind the subsequent changes at C4 and C5 were probably related to the fusions that were necessary because of the initial injury." Dr. Smith testified, "it is my opinion that in all probability the latest disc, that is the C4-C5 disc, was related to the performance of the earlier fusions and, therefore, indirectly related to the events of the accident." We also note Dr. DeHaan's opinion in November 1994, "Radiographs of his C-spine show marked degenerative changes post-surgical to his C-spine. He's got a fusion at 2-levels and definite osteophytic changes at the intervening disc level." The evidence before the Commission clearly shows a change in physical condition, so that the claimant is entitled to a modification of his anatomical impairment and wage-loss disability rating. There is no medical evidence in the record which contradicts the expert opinions of Dr. Smith and Dr. DeHaan.
The Commission awarded the claimant 20% anatomical impairment and 20% wage-loss disability in 1994. The record indicates that the claimant has undergone a change in physical condition since that time. The preponderance of evidence shows that the claimant has sustained an additional anatomical impairment in the amount of 13%, for a total permanent impairment rating of 33%. The wage-loss factor is the extent to which a compensable injury has affected the claimant's ability to earn a livelihood. Glass v. Edens, 233 Ark. 786, 346 S.W.2d 685 (1981). The Commission is charged with determining wage-loss disability based upon a consideration of the medical evidence and other matters affecting wage loss, including age, education, and work experience. Ark. Code Ann. § 11-9-522(b)(1987). In the present matter, we note that the claimant is only 45 years old and has a general education diploma. The claimant injured his neck and shoulder in a compensable event occurring in 1991. Since that time, the claimant has had shoulder surgery, neck surgery, another shoulder surgery, and another neck surgery. The claimant also lost a thumb on the job with the respondents. He has also undergone low-back surgery (deemed not compensable). However, the Full Commission does not find that the claimant is permanently and totally disabled. The claimant has sustained only a 33% anatomical impairment, and no treating physician has removed the claimant from the workforce. We find that the claimant is not motivated to seek any form of employment, which impedes our assessment of the claimant's wage-loss disability. City of Fayetteville v. Guess, 10 Ark. App. 313, 663 S.W.2d 946 (1984). The Full Commission finds that the claimant has sustained wage-loss disability in the amount of 13% in addition to the 20% wage-loss awarded in 1994.
Based on our de novo review of the entire record, the Full Commission finds that the claimant proved a change in physical condition pursuant to Ark. Code Ann. § 11-9-713(a)(2)(1987). The Full Commission finds that the claimant has sustained an increased anatomical impairment of 13%, for a total anatomical impairment rating of 33%. We find that the claimant has sustained increased wage-loss disability of 13%, for a total of 33% wage-loss disability in addition to the claimant's 33% anatomical impairment. The Full Commission therefore affirms, as modified, the decision of the administrative law judge. Finally, we note the claimant's statement in his Notice of Cross-Appeal, i.e., that the claimant is entitled to "the `total disability rate' on all previously paid PPD benefits[.]" The claimant's attorney cites no supporting authority in his cross-appeal, which in any event is rendered moot by the Full Commission's denial of permanent and total disability. The claimant's attorney is entitled to fees for legal services pursuant to Ark. Code Ann. § 11-9-715(1987). For prevailing in part on appeal, the claimant's attorney is entitled to an additional fee of two hundred fifty dollars ($250), pursuant to Ark. Code Ann. § 11-9-715(1987).
IT IS SO ORDERED.
________________________________ OLAN W. REEVES, Chairman
Commissioner Turner concurs in part and dissents in part.
CONCURRING AND DISSENTING OPINION
I concur with the finding in the principal opinion that pursuant to Ark. Code Ann. § 11-9-713(a) (Repl. 2002), claimant has experienced a change in physical condition enabling the Commission to modify a previous award of benefit for permanent disability. Additionally, I concur with the finding in the principal opinion that claimant is entitled to permanent disability benefits in an amount equal to at least 66% to the body as a whole. However, I do so only to preserve claimant's award of benefits in light of the Court of Appeals decision in S S Construction, Inc. v. Coplin, 65 Ark. App. 251, 986 S.W.2d 132 (1999). Further, the finding in the principal opinion that claimant has failed to prove entitlement to benefits for permanent total disability is not supported by a preponderance of the evidence in the record. Accordingly, I must respectfully dissent in this regard.
In spite of any comments indicating otherwise, claimant was an honest, industrious, and conscientious worker before sustaining these compensable injuries to his neck and shoulder. He had had no prior difficulties with his neck and right shoulder. His prior jobs involved very heavy, physical labor. He cannot return to any of these jobs for which he has been trained. Claimant continues to make a determined effort to remain active and overcome his disability. However, claimant's condition rapidly deteriorates after most physical activities of any consequence. There are legitimate, objectively documented physical abnormalities causing claimant's unremitting and intractable pain. Claimant has become physically and psychologically addicted from prolonged use of narcotic pain medications. Further, claimant presented credible testimony regarding his physical limitations and severely restricted daily activities.
Since claimant's injuries occurred prior to Act 796 of 1993, the odd lot doctrine can be considered in determining the extent of claimant's permanent disability.
In my opinion, claimant has presented a prima facie case that he falls within the odd lot category, thereby shifting to respondent the burden of going forward with evidence that some kind of suitable work is regularly and continuously available to claimant. M. M. Cohn Co. v. Haile, 267 Ark. 734, 589 S.W.2d 600 (Ark.App. 1979). Claimant does not have to be "utterly helpless" in order to be entitled to benefits for total disability. While claimant may be able to work a small amount, the compensable injuries restrict him to "services that are so limited in quality, dependability, or quantity that a reasonably stable market for them does not exist." Hyman v. Farmland Feed Meal, 24 Ark. App. 63, 748 S.W.2d 151 (1988). Since claimant has presented a prima facie case of total disability and respondent has failed to present any evidence on claimant's overall job prospects, I find that claimant is permanently and totally disabled. The greater weight of the evidence indicates that suitable work is not regularly and continuously available to claimant, and his "future job prospects are negligible." Lewis v. Camelot Hotel, 35 Ark. App. 212, 816 S.W.2d 632 (1991).
For the foregoing reasons, I dissent from the finding in the principal opinion that claimant has failed to prove by a preponderance of the evidence that the compensable injuries have rendered him permanently and totally disabled. Accordingly, the opinion of the Administrative Law Judge should be affirmed in its entirety.
_______________________________ SHELBY W. TURNER, Commissioner
Commissioner McKinney dissents.