Opinion
CLAIM NO. E500902
OPINION FILED MAY 7, 1998
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by RALPH M. PATTERSON, JR., Attorney at Law, No. Little Rock, Arkansas.
Respondent represented by J. CHRIS BRADLEY, Attorney at Law, No. Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed in part and reversed in part.
OPINION AND ORDER
[2] Respondent appeals from a decision of the Administrative Law Judge filed March 6, 1997. Based upon our de novo review of the entire record, we find that the decision of the Administrative Law Judge must be, and hereby is, affirmed in part and reversed in part. We affirm the finding that claimant failed to demonstrate that the compensable injury is the major cause of the impairment rating assigned by claimant's treating physician. However, we reverse the finding that claimant has shown by a preponderance of the evidence she sustained a wage loss disability equal to 20% to the body as a whole.First, we note that claimant did not file a cross appeal with regard to the Administrative Law Judge's finding that claimant failed to demonstrate that the compensable injury is the major cause of the impairment rating assigned by claimant's treating physician. Although respondent argues in its brief that this finding should be upheld, it is specifically noted that claimant did not appeal this aspect of the Administrative Law Judge's decision. Therefore, we cannot find that whether claimant demonstrated that the compensable injury is the major cause of the impairment rating is an issue to be decided on appeal. Consequently, we find that this portion of the Administrative Law Judge's decision should be affirmed. However, even assuming that such is a proper issue on appeal, a finding we do not make, we would still find based upon the evidence of record that claimant has failed to prove that her compensable incident was the major cause of any impairment rating assessed.
In his July 12, 1995, correspondence, and again in his April 8, 1996, correspondence Dr. Harold Chakales assigned the claimant a physical anatomical impairment rating of 10 to 15% to the body as a whole. Dr. Chakales interpreted the MRI performed in November of 1994 as showing:
Wedging of L3 vertebrae body and I diagnosed her as a lumbar sprain superimposed on pre-existing lumbar degenerative disc disease with a possible compression fracture of L2 or L3; rule out nerve compression on the left; and diabetes mellitus.
A diskogram and post diskogram CT was performed at Dr. Chakales' insistence in June of 1995. Dr. Chakales interpreted these results as follows:
This is significant that it shows a degenerative disc at the L2-L3 level. There was evidence of a lumbar disc syndrome at the L4-L5 with a degenerative disc at that level. The CT scan showed evidence of bulging degenerative discs at several levels, primarily the L2-L3 and L4-L5 levels which appear to be getting the majority of her symptoms from the diskography as performed.
It is important to note that the lumbar diskogram and post diskogram CT did not confirm the possible compression fracture which Dr. Chakales suspected in the November 1994 MRI. Consistent throughout his treatment and examination of the claimant has been Dr. Chakales' diagnosis of lumbar spine strain superimposed on a pre-existing lumbar degenerative disc disease at multiple levels.
Dr. Chakales did not specifically provide a basis for his anatomical impairment of 10 to 15% to the body as a whole. However, it is noted that in both of his correspondences in which he sets forth the impairment rating, Dr. Chakales specifically describes the degenerative disc disease at multiple levels based upon the lumbar diskogram and CT scan. The rating as assigned by Dr. Chakales is not discussed in association with the diagnosis of muscle strain and muscle spasms resulting from claimant's compensable injury.
Arkansas Code Ann. § 11-9-102(5)(F)(ii) (Supp. 1997) provides:
Permanent benefits shall be awarded only upon a determination that the compensable injury was the major cause of the disability or impairment. If any compensable injury combines with a pre-existing 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. Arkansas Code Ann. § 11-9-102(14) (Supp. 1997).
After reviewing the entire record, we find that claimant has failed to prove that her compensable injury which has been diagnosed as a lumbar sprain superimposed on pre-existing lumbar degenerative disc disease is the major cause of the impairment rating assigned by Dr. Chakales. In so finding, we note that Dr. Chakales assigned the 10 to 15% impairment to the body as a whole based upon the studies documenting pre-existing degenerative disc disease. The record is void of any evidence establishing that claimant's lumbar strain or sprain was the major cause of the physical impairment rating. Therefore, we find that claimant failed to prove that her compensable injury, diagnosed as a lumbar strain superimposed on a pre-existing degenerative disc disease was the major cause of any permanent impairment which may be assessed. In so finding, we recognize that the Arkansas Court of Appeals stated that the legislature did not limit the acceptable evidence that could be considered with regard to finding whether major cause has been met. High Capacity Products v. Gwendell Moore, ___ Ark. App. ___, ___ S.W.2d ___ (Feb. 25, 1998). However, with regard to the impairment rating assigned by Dr. Chakales, the only conclusion which can logically be reached is that the impairment rating is based upon the objective findings that documented the degenerative disc disease. Therefore, we find that the Court's holding in Moore regarding major cause is not relevant to the facts in this case.
Since we find that claimant has failed to prove entitlement to a physical impairment rating, we find that claimant has likewise failed to prove entitlement to any wage loss disability. Ark. Code Ann. § 11-9-522(b)(1) specifically provides, "In considering claims for permanent partial disability benefits in excess of the employee's percentage of permanent physical impairment, . . ." Moreover, Ark. Code Ann. § 11-9-704(c)(3) mandates that the provisions of Act 796 be strictly construed. Accordingly, we have found that in order to be entitled to any wage loss disability in excess of the permanent physical impairment, a claimant must first prove by preponderance of the evidence that he sustained a permanent physical impairment as a result of the compensable injury. Cathy Needham v. Harvest Foods, Full Commission Opinion October 8, 1997 ( E407259). We note that the cases relied upon by the dissent to the contrary do not involve Act 796 cases. In the only case cited which involved Act 796, Smith v. Gerber Products, 54 Ark. App. 57, 922 S.W.2d 365 (1996), the Court refused to address whether a physical impairment rating is required prior to an award of wage loss disability. InSmith, supra, the Court found that since the claimant's compensable injury was not the major cause of her disability, claimant was not entitled to any permanent benefits. Likewise, in the present case, claimant cannot show that her compensable injury, a lumbar sprain is the major cause of any present disability. All medical evidence reveals that claimant's pain and discomfort which she contends is the basis of her disability results from claimant's underlying pre-existing degenerative disc disease as evidenced by the diskograms performed by Dr. Chakales. Consequently, using the rationale implemented by the Court of Appeals in Smith v. Gerber Products, supra, we find that claimant has failed to prove entitlement to any wage loss disability benefits. Therefore, we reverse the finding of the Administrative Law Judge awarding wage loss disability.
IT IS SO ORDERED.
DISSENTING OPINION
[15] I must respectfully dissent from the opinion of the majority finding that claimant is not entitled to benefits for permanent anatomical impairment or wage loss disability.Claimant sustained a work-related injury to her low back on January 24, 1994, when she slipped and fell on a wet floor. When the injury occurred, she was employed as a recreation leader for respondent employer. Claimant's job duties included setting up rooms that the city rented, and ensuring that they were clean. Claimant also decorated the rooms. She testified that she was required to move heavy objects, specifically beams and padding.
Dr. Chakales' initial evaluation of claimant occurred on June 7, 1995. His examination revealed objective findings of straightening of the lumbar lordosis, muscle spasms (also documented in an October 1994 office note), and diminished ankle jerks bilaterally. Dr. Chakales ordered a lumbar discogram and a post-discogram CT Scan, and these tests were performed on June 27, 1995. The radiologist's report of the post-discogram CT Scan revealed the following impressions: disc degeneration at L2-3; minimal disc degeneration at L3-4; mild-to-moderate disc degeneration at L4-5 with a small right paracentral annular tear; and degenerative disc at L5-S1 without evidence of annular tear.
In a letter dated July 12, 1995, Dr. Chakales stated that ". . . the CT-Scan showed evidence of bulging degenerative disc at several levels primarily the L2-L3 and L4-L5 levels which appear to be getting the majority of her symptoms from the discography as performed." He opined that "[claimant] suffers from a lumbar spine injury super-imposed on pre-existing lumbar degenerative disc disease multiple levels." Dr. Chakales assigned an impairment rating of 10-15% to the whole body.
On April 8, 1996, Dr. Chakales issued a written report in which he stated that claimant had ". . . a lumbar disc syndrome at L4-5, and a degenerative disc at L2-L3." He indicated that he based his conclusions on the discogram and post-discogram CT-Scan. He diagnosed claimant with "symptomatic lumbar degenerative disc disease, lumbar disc syndrome with left radiculopathy." Claimant's impairment rating remained the same.
Claimant performed her job without difficulty prior to the injury. Additionally, claimant testified that she was very active with the Veterans of Foreign Wars, and she traveled the state as a fund-raiser for the organization. Also, she volunteered at the VA Hospital several times per week. Claimant's hobbies included gardening, fishing, and dancing. For exercise, claimant walked twice daily.
Claimant stated she is being treated by Dr. Pledger for depression and has been prescribed pain, anti-inflammatory, and anti-depressant medications, which she takes on a daily basis. She is only able to walk a few blocks at a time. She passes her days sitting in a room alone and goes to bed at approximately 6:30 p.m. each night. She is unable to drive and has difficulty riding in a car for more than 20 minutes. Her daughter drives her to the grocery store and cleans her house. She is unable to engage in her hobbies or perform volunteer work. It is claimant's belief that her depression is attributable to her work-related injury and associated restrictions. Further, she testified that the pain she is experiencing is debilitating, and she cries with regularity. Claimant has applied for social security disability benefits.
This case presents the problem of an Administrative Law Judge awarding wage-loss disability benefits after finding that claimant failed to prove entitlement to any benefits for permanent anatomical impairment. I recognize that fairly recent opinions of this Commission have held that as a prerequisite to an award for wage-loss disability, claimant must prove that she is entitled to benefits for a permanent anatomical impairment. See Cathy Needham v. Harvest Foods, Full Commission Opinion filed October 13, 1997 ( E407259). I do not agree. In support of my position, I point toDacus Casket Co. v. Hardy, 250 Ark. 886, 467 S.W.2d 713 (1971);Danny Chase v. American Bronze Kraft, Full Commission Opinion filed May 20, 1991 ( E003227); and Elton E. Crawford v. Atlast Carriers, Inc., Full Commission Opinion filed January 21, 1992 ( D714089). Further, I note that in Smith v. Gerber Products, 54 Ark. App. 57, 922 S.W.2d 365 (1996), the court refused to specifically rule out the possibility that a claimant could receive wage loss disability benefits in the absence of an award for permanent anatomical impairment. The court decided claimant was not entitled to any disability benefits because the compensable injury was not the major cause of her permanent disability.
The majority criticizes this portion of my dissent by stating that the cases cited above do not involve cases to which Act 796 of 1993 applies. However, I would respectfully point out that Act 796 did not change this aspect of the Workers' Compensation Act. Therefore, the majority has simply chosen to advance a distinction without a difference.
Be that as it may, I believe that claimant is entitled to an award of permanent partial disability benefits based on anatomical impairment. Therefore, it is unnecessary to revisit the above issue. Accordingly, I would reverse the Administrative Law Judge in this regard.
Respondents argue that the impairment rating is problematic for two reasons: (1) they contend that the rating is not based on objective and measurable findings; and (2), claimant's injury is not the major cause of the permanent anatomical impairment rating.
Respondents' contention that the impairment rating is not based on objective findings lacks merit. To bolster their argument, respondents state in their brief that Dr. Chakales' letter of April 8, 1996, ". . . cited complaints of pain, . . ., results of straight-leg testing and range of motion tests, all being methodologies excluded from use as a determinate of anatomical impairment because they come under the voluntary control of the patient." However, a careful review of the above-cited portion of the April 8th letter reveals that Dr. Chakales was describing the results of the examination he conducted in June of 1995. He wasnot explaining the basis for the anatomical impairment rating he assigned claimant. As noted above, Dr. Chakales detailed numerous objective findings which support an award of benefits. In addition to straightening of the lumber lordosis, muscle spasms and diminished ankle jerks, the objective findings include the CT-scan, which showed a small annular tear at L4-5, and the discogram performed prior to the CT-Scan, which indicated that the injection at the L4-L5 level produced significant pain and mirrored claimant's usual pain. Although subjective, the results of this study serve to confirm or assist in confirming the objective findings, and this is permissible. Barbara Baker v. Transco Leasing, Full Commission Opinion filed August 13, 1997 ( E508874 E600738).
Dr. Chakales did not apportion claimant's impairment rating between claimant's pre-existing condition and her compensable injury. Respondents use this oversight to conclude that the absence of a medical opinion on the question of major cause precludes an award of permanent partial disability benefits. However, the Arkansas Court of Appeals recently considered whether the statutory definition of "major cause" may be satisfied in the absence of a physician's opinion on that question. The Court examined the statutory definition of the term "major cause" and concluded that a physician's opinion on major cause is not required. In so holding, the Court of Appeals stated that ". . . the legislature did not so limit the acceptable evidence that could be considered." High Capacity Products v. Moore, 61 Ark. App. 1, ___ S.W.2d. ___ (1998).
I am satisfied that the work-related injury was the major cause of the impairment rating assigned by Dr. Chakales. Although claimant has some pre-existing degenerative changes, she was asymptomatic prior to her work-related injury. Indeed, she testified that she had an active lifestyle before her accident. Additionally, there is no evidence of prior treatment or physical restrictions due to back pain. Claimant testified that she now suffers from chronic back pain, which has resulted in striking changes or restrictions in her lifestyle. In my opinion, claimant's testimony is credible. The credibility of witnesses as well as the weight to be afforded their testimony are questions for the Commission to resolve. Robinson v. Ed Williams Const. Co., 38 Ark. App. 90, 828 S.W.2d. 860 (1992).
Based on the foregoing, I would reverse the Administrative Law Judge's denial of benefits for permanent anatomical impairment and award claimant benefits equal to at least 10% to the body as a whole.
An injured worker is entitled to permanent disability benefits if she is able to demonstrate a diminution of her wage earning capacity. Williams v, St. Vincent Infirmary, 59 Ark. App. 148, 954 S.W.2d 302 (1997). The applicable statutory provision is Arkansas Code Ann. § 11-9-522 (b) (1) (Repl. 1996), which states:
(b) (1) In considering claims for permanent partial disability benefits in excess of the employee's percentage of permanent physical impairment, the commission may take into account, in addition to the percentage of permanent physical impairment, such factors as the employee's age, education, work-experience, and other matters reasonably expected to affect his future earning capacity.
At the time of the hearing, claimant was 54 years of age. She completed the 7th grade. Claimant testified that she has had no specialized job training. Prior to employment with respondent employer, claimant worked in nursing homes and hospitals. Claimant testified she last worked on May 5, 1995. She returned to work following her compensable injury. However, she was excused intermittently as a result of the fall. Ultimately, she resigned in May of 1995 because of the chronic pain she has experienced since her work-related injury. Due to claimant's physical limitations, she is dependent upon her daughter for errands and house-cleaning. Claimant continues to take pain and anti-inflammatory medication as a result of her compensable injury. She is no longer able to engage in the hobbies she previously enjoyed.
In my opinion claimant has proven entitlement to an award of benefits for wage loss disability totaling 20% to the whole body. I would, therefore, affirm the Administrative Law Judge's award in this regard.
For the foregoing reasons, I dissent.
PAT WEST HUMPHREY, Commissioner