Opinion
CLAIM NO. E312233
OPINION FILED JANUARY 13, 1999
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE BILL H. WALMSLEY, Attorney at Law, Batesville, Arkansas.
Respondents No. 1 represented by the HONORABLE BETTY J. DEMORY, Attorney at Law, Little Rock, Arkansas.
Respondent No. 2 represented by the HONORABLE JUDY W. RUDD, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed as modified.
OPINION AND ORDER
Respondent No. 2, the Second Injury Trust Fund, appeals an opinion and order filed by the administrative law judge on January 30, 1998. In that opinion and order, the administrative law judge found that the claimant has sustained a wage loss disability of 47% rated to the body as a whole in excess of the 13% permanent anatomical impairment accepted and paid by Respondent No. 1. In addition, the administrative law judge found that Respondent No. 2 has liability for the claimant's wage loss disability at issue in this case. After conducting ade novo review of the entire record, we find that the claimant has sustained a 37% impairment to her wage earning capacity, attributable to her back condition, and we find that Respondent No. 2 has liability for the claimant's 37% wage loss disability. Consequently, we find that the decision of the administrative law judge must be affirmed as modified.
At the time of the most recent hearing, the claimant was 57 years old. The claimant did not complete the 12th grade in school, but later obtained a G.E.D. Her work experience includes jobs as a cashier, factory worker, waitress, housekeeper at a motel, day care aide, and cook.
The claimant's relevant medical history includes a work related back injury while working in a restaurant in 1975. The claimant underwent laminectomy surgery for a herniated nucleus pulposus at the L4-5 level of the spine in 1978. The claimant testified that she missed approximately two years of work from this first back injury, and that she had intermittent back and leg problems thereafter, including one week of hospitalization in approximately 1982 or 1983.
The claimant experienced another slip and fall injury, this time while employed by the respondent, on June 19, 1993. Dr. Robert Dickens performed another laminectomy surgery at the L4-5 level of the spine on October 19, 1993. Following this surgery, the claimant experienced episodes where her legs gave way, causing the claimant to fall. The claimant testified that she now has pain in her back and legs, especially if she stands or sits too long. The claimant testified that she feels that she is unable to work due to pain in her back and legs. In addition, the claimant testified that bending or stooping causes back and leg pain. The claimant testified that lifting 20 to 30 pounds causes her back pain.
At Dr. Dickens' request, the claimant underwent a functional capacity evaluation on May 18, 1994. This evaluation suggested submaximal affect, but also indicated that the claimant was currently capable of performing "medium" work as classified by the U.S. Department of Labor.
After considering the claimant's relatively advanced age, her education and work experience, the nature and extent of her back injury and all other relevant factors, we find that the claimant has sustained a 37% impairment to her wage earning capacity in excess of the 13% permanent anatomical impairment accepted and paid for her 1993 back injury and surgery, and the 17.5% permanent anatomical impairment assigned for her 1975 back injury and surgery. In reaching this conclusion, we note that, although the claimant was generally compliant with prescribed physical therapy, the claimant gave inconsistent effort in her functional capacity evaluation. Likewise, we note that the claimant has made no attempt to return to work in any capacity after her 1993 injury, instead describing herself in her 1996 deposition as "probably retired". We point out that the claimant's lack of motivation in attempting to return to work somewhat hampers our assessment of the claimant's loss of earning capacity associated with her back condition.
Pursuant to Ark. Code Ann. § 11-9-525 and Midstate Constr. Co. v. Second Injury Fund, 295 Ark. 1, 746 S.W.2d 539 (1989), three criteria must be met before the Second Injury Fund can be found liable for wage-loss disability.
1. The employee suffered a compensable injury at his present place of employment which resulted in additional permanent disability or impairment;
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 parties stipulated that the claimant sustained a compensable injury at the L4-5 level of the spine on June 19, 1993 for which she received benefits for a 13% anatomical rating. Likewise, the record indicates that the claimant had a prior injury to the L4-5 level of the spine in 1975 for which she also underwent surgery and received a 17.5% permanent anatomical impairment rating. Consequently, clearly both of the first two requirements for Second Injury Fund liability have been met.
On the record in the present case, we find that the third requirement for Second Injury Fund liability has also been met. In reaching that conclusion, we note that the claimant's pre-existing surgery and 17.5% anatomical impairment were based on an injury at the same level of the claimant's lumbar spine as the claimant's most recent injury, surgery, and 13% anatomical impairment rating. Likewise, we note that the claimant's testimony and medical records indicate that she continued to experience some degree of physical problems after her 1975 injury which influenced her decision as to whether or not to apply for certain jobs thereafter. However, following the claimant's 1993 injury and surgery, her physical limitations attributable to her injuries at the L4-5 level of the spine increased substantially. In our opinion, the relevant facts of this case regarding the third requirement are indistinguishable from the facts presented in Second Injury Fund v. Stephens, 62 Ark. App. 255, 970 S.W.2d 331 (1998) and in Second Injury Fund v. Furman, 60 Ark. App. 237, 961 S.W.2d 787 (1998). Consequently, for the reasons discussed herein, we find that the third requirement to establish Second Injury Fund liability has also been met.
Finally, we agree with the Second Injury Fund's conclusion that the claimant's emphysema, which was diagnosed in early 1994, was a "latent" condition at the time of the claimant's 1993 injury, as the term "latent" has been defined by the Arkansas Courts. See, Purolator Carrier v. Chancey, 40 Ark. App. 1, 841 S.W.2d 159 (1992). However, our assignment of a 37% impairment to the claimant's wage earning capacity isexclusive of any additional impairment that the claimant has experienced to her wage earning capacity as a result of her now worsening emphysema.
Therefore, after conducting a de novo review of the entire record, and for the reasons discussed herein, we find that the claimant has sustained a 37% impairment to her wage earning capacity attributable to her back condition, and we find that the Second Injury Fund has liability for these benefits. Consequently, we find that the decision of the administrative law judge must be, and hereby is, affirmed as modified.
IT IS SO ORDERED.
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PAT WEST HUMPHREY, Commissioner
DISSENTING OPINION
I respectfully dissent from the majority opinion which holds that claimant is only entitled to a wage loss award of 37% and that the Second Injury Fund is liable for payment of the award.
With respect to Second Injury Fund liability, it is clear that claimant's current injury satisfies the first prong of theMid-State test. Further, I am of the opinion that claimant's previous back injury, which produced an impairment, satisfies the second prong of the test. However, I submit that there is no SIF liability in this case because the third prong of the Mid-State test has not been satisfied. Specifically, claimant's current disability status is not the result of the requisite combination.
The deposition testimony of Dr. Lackey F. Moody was made a part of the record. Dr. Moody began treating claimant in 1975 for an unrelated matter. Later that year, claimant consulted Dr. Moody following a fall. Initially, he treated claimant conservatively with medication. He ultimately made a referral to Dr. Jerry Thomas, an orthopedist. Then, claimant was treated by Dr. Richard Logue, and he performed surgery in March of 1978. Dr. Logue assigned an anatomical impairment rating of 17.5% as a result of this injury.
Dr. Moody last prescribed medication in January of 1979. He did not treat claimant for back pain again until 1994. Dr. Moody prescribed a muscle relaxant, aerobid for claimant's lungs and an inhaler. He diagnosed claimant with COPD (chronic obstructive pulmonary disease). Dr. Moody explained that this is often a progressive disease, as is the case with claimant. He stated that his records reflect that there was a marked increase in the frequency of claimant's office visits beginning in 1996.
The evidence in this case demonstrates that after claimant's surgery in 1978, she worked steadily for a period of approximately 15 years before injuring her back. Claimant testified there were certain jobs she did not apply for due to the physical demands of the work, such as duties required of a waitress. However, there is no evidence that claimant attempted to work as a waitress. The record reflects that claimant's employment history is varied. Since claimant's initial injury, she has worked in an office, two sewing factories, a day care center, and a motel performing housekeeping duties. Claimant testified that she took over-the-counter medication when she experienced flare-ups. Nevertheless, the deposition testimony of Dr. Moody reveals that he did not treat claimant for back pain between 1979 and 1994. It appears that claimant's 1978 surgery was successful, and there is no evidence that she suffered functional deficits in her legs following the initial procedure. However, since the surgery performed in 1993, claimant has experienced functional deficits in her lower extremities. The deficits resulted in falls, and those injuries were deemed to be compensable consequences of claimant's 1993 injury. Moreover, claimant has been treated for fibromyalgia since the surgery was performed in 1993. Dr. Ketcham opined that claimant developed myofascial pain following surgery and it was not fully treated. In my opinion, the evidence supports a finding that claimant's current disability status is attributable to her most recent injury. Although claimant's ability to return to the work force following her initial injury is not determinative, neither is it irrelevant to our inquiry. It appears that the treatment of claimant's 1975 herniated nucleus pulposus at L4-5 was successful. However, claimant has never fully recovered from the surgery for her subsequent disc herniation at L4-5 as evidenced by the problems subsequently developed. Indeed, her condition steadily worsened.
Turning now to claimant's entitlement to wage loss benefits, I am of the opinion that the Administrative Law Judge's award of 47% should be affirmed. Although claimant contended at the hearing that she is permanently and totally disabled, she asserts on appeal that the wage loss award should be affirmed.
Claimant is 57 years old. She obtained a GED in 1989. She has a diverse work history. Claimant has no specialized training. In a letter to Dr. Peyton dated December 20, 1993, Dr. Dickens expressed uncertainty with regard to claimant's future in the labor market, noting that "[claimant] does not have any job training that would allow her to do some less physically demanding work."
The evidence shows that claimant failed to fully recover from her second surgery. In a subsequent letter to Dr. Peyton dated January 17, 1994, Dr. Dickins stated that physical therapy he prescribed following surgery was discontinued because it exacerbated claimant's symptoms.
On June 10, 1994, Dr. Dickins corresponded with respondent carrier. He stated that claimant is experiencing increased back and bilateral leg pain. He also offered an opinion with respect to claimant's future employment prospects:
I am discouraged about Ms. Fuller's long term status with respect to her back. She has had a back operation and a follow-up MRI scan demonstrating no recurrence of disc herniation. She has experienced a good deal of back pain since her surgery. I am discouraged that she is going to improve to the point that she could return to work in the future.
This opinion was offered by claimant's treating surgeon within months after claimant was diagnosed with emphysema. On the other hand, Dr. Moody's deposition testimony was taken on September 19, 1997. Although it is clear that Dr. Moody believed that claimant's back injury contributed to her disability status, the progression of her pulmonary disease made it difficult to separate the two conditions. Therefore, I find that Dr. Dickins' testimony is more credible on this issue. Dr. Dickins had the benefit of assessing claimant's ability to return to the work-force before she developed emphysema.
The record reflects the progression of claimant's problems following back surgery. In a letter to the carrier dated August 31, 1994, Dr. Dickins remarked: "She states she is doing about the same and having a considerable amount of back and leg pain. She states that sometimes her legs act as if they are not going to work." Claimant's words to Dr. Dickins proved prophetic, as evidenced by her subsequent falls.
In September of 1994, claimant was referred to Dr. Jeff Ketcham. He administered an epidural steroid injection on September 14, 1994. He also opined that in addition to the herniated disc in 1993, claimant also developed myofascial pain. In this regard, he stated that: "I feel that this was probably not fully treated and after the operation with even more stimulus, these muscles became more spasmodic with the trigger points and she now is certainly close to if not in a current state of fibromyalgia with spread of the pain and muscular spasm into muscle groups which were not initially involved." In a chart note dated October 10, 1994, Dr. Ketcham stated that the initial injection was not helpful, and he planned to proceed with a ". . . modified differential epidural." This procedure involves the placement of an epidural catheter into the epidural space. The patient returns for ". . . daily injections of local anesthetic to help relax the musculature. . . ." In his procedure note dated October 10, 1994, Dr. Ketcham indicated that claimant did not show a placebo response. Accordingly, he concluded that "[t]his would indicate that the fibromyalgia is probably in truth causative of most of her problems." Claimant returned to Dr. Ketcham's office for repeat injections through October 14, 1994. Physical therapy was also prescribed by Dr. Ketcham.
Claimant is unable to sit for long periods of time. Although claimant is able to drive, she only drives short distances. Claimant stated that she is unable to clean her home. Claimant's grandchildren clean her home on occasion. Otherwise, it is not cleaned. She stated that she is able to go to the grocery store. However, her grandchildren accompany her for the purpose of providing assistance.
After considering the relevant factors for assessing wage loss, I find that the wage loss award in this case is wholly inadequate. At a minimum, the Administrative Law Judge's award of 47% should be affirmed.
This case represents an alarming trend with respect to wage loss awards. The majority continues to modify wage loss benefits awarded by the Commission's Administrative Law Judges. Almost without exception, the modification is a downward departure from the Administrative Law Judge's award. See,Phillip Clinton v. Dowell Transport, Inc., Full Commission Opinion filed May 14, 1998 ( E220907); Mary Jordan v J.C. Penney Company, Full Commission Opinion filed December 11, 1998 ( E400854); Roland Jones v. Delta Beverage Group, Full Commission Opinion filed Oct. 29, 1998 ( E710021). The implications of this trend are far-reaching for these decisions telegraph a clear signal to the Administrative Law Judge's with respect to acceptable awards of wage loss.
Here, the Administrative Law Judge awarded claimant benefits totalling 47%. This represents 211.5 weeks of benefits. However, the majority's award modification results in 166.5 weeks of benefits. This represents ten months of benefits. Claimant's compensation rate is $123.31. Therefore, the modification results in a loss of benefits to claimant totaling $5,548.95.
For the reasons discussed herein, I respectfully dissent.
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