Opinion
CLAIM NO. E600705
OPINION FILED JANUARY 6, 1998
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE DAVID LASER, Attorney at Law, Jonesboro, Arkansas.
Respondents represented by the HONORABLE BUD ROBERTS and MARK McCARTY, Attorneys at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed in part and reversed in part.
OPINION AND ORDER
[2] The respondents appeal and the claimant cross appeals an opinion and order filed by the Administrative Law Judge on February 27, 1997, and a supplemental opinion filed on March 24, 1997. In these opinions, the Administrative Law Judge found that the claimant sustained an aggravation of his preexisting work-related back injury on January 2, 1996, and that the claimant sustained an additional permanent partial impairment of five percent (5%) to the body as a whole as a result of that aggravation. In addition, the Administrative Law Judge found that the claimant has sustained a 35% impairment to his earning capacity in excess of the permanent partial anatomical impairment established by the medical evidence. The Administrative Law Judge also found that the claimant's family physician, Dr. Shedd, is authorized to refer the claimant to Dr. Larry Mahon for future medical maintenance he deems reasonable and necessary, and the Administrative Law Judge found that the claimant's compensation rate shall be based upon his earnings existing in January 1996.After conducting a de novo review of the entire record, we find that the claimant has sustained a 35% impairment to his earning capacity in excess of the permanent anatomical impairment established by the medical record, and we find that the claimant's future authorized treating physician should be Dr. Shedd. Therefore, we find that the Administrative Law Judge's decision in these regards should be affirmed. However, we find that the claimant failed to prove by a preponderance of the credible evidence that he sustained an additional 5% permanent anatomical impairment rated to the whole body as a result of an aggravation to his low back injury which occurred in 1996. In addition, we find that the claimant's compensation rate is properly based on his 1977 earnings rate and not the claimant's 1996 earnings rate. Therefore, we find that the Administrative Law Judge's decision in these regards must be reversed. In addition, we find that the claimant failed to prove by a preponderance of the evidence that he sustained a compensable anatomical impairment to the thoracic spine as a result of his 1996 work-related injury.
The claimant sustained an admittedly compensable back injury while employed by the respondents as a truck driver in 1977. As a result of that injury, the claimant underwent four surgeries. These surgeries included laminectomies and discectomies at the L4-5 and L5-S1 levels of the spine. In addition, the claimant ultimately received a bi-level fusion at these levels. The respondents paid the claimant benefits for a 35% anatomical impairment rating assigned for the claimant's 1977 low back injury.
The claimant had eventually returned to work driving for the respondents when he was involved in two motor vehicle accidents on icy roads on January 2, 1996. Dr. Roy Tyrer, the claimant's treating neurosurgical physician, ultimately concluded that the claimant's 1996 motor vehicle accidents had no appreciable effect on the claimant's pre-existing low back problems.
The claimant also received an independent medical evaluation from Dr. Larry Mahon, a neurosurgeon. With regard to the claimant's assertion that he is entitled to an additional 3% permanent anatomical impairment rating associated with alleged injuries to his thoracic spine, Dr. Mahon's x-rays in that examination indicated "osteoarthritis with bone spurring throughout the thoracic spine." Clearly these degenerative conditions preexisted the claimant's 1996 accidents. We note that the claimant's claim for an alleged anatomical impairment to the thoracic spine is clearly subject to the provisions of Act 796 of 1993 since the alleged thoracic injury from the 1996 accident was sustained after July 1, 1993. However, in light of the x-ray indications of osteoarthritis with bone spurring, we find that the claimant has failed to show that his 1996 work-related injury was the major cause of any anatomical impairment that he may have experienced to the thoracic spine. Therefore, pursuant to the provisions of Act 796 of 1993, we find that the Administrative Law Judge was correct in not awarding the claimant an additional 3% anatomical impairment rating to the body as a whole related to alleged injuries to the thoracic spine as a result of his 1996 accidents.
With regard to the respondents' assertion that Dr. Mahon's 5% additional anatomical impairment rating to the lumbar spine was not an issue presented at the hearing in this case, we note that additional permanent disability benefits was one of the two issues for which the claimant requested a hearing. In addition, we note that the respondents received a copy of Dr. Mahon's report assigning the claimant an additional 5% anatomical impairment rating to his lumbar spine, and we note that the claimant's attorney specifically indicated at the start of the hearing that the 5% anatomical impairment rating had not been paid to date. Likewise, we note that the respondents' attorney did not object to, or even respond to, the comment of the claimant's attorney that the 5% anatomical impairment had not been paid. Consequently, we find that under the circumstances of this case the additional 5% anatomical impairment rating related to the alleged 1996 aggravation of the claimant's prior low back injuries was in fact properly raised as a hearing issue.
However, we find that the claimant failed to establish any additional impairment to the lumbar spine with "objective findings". In this regard, we note that Dr. Mahon's June 3, 1996, "independent medical evaluation" included an extensive review of the claimant's prior surgeries and treatment as well as a statement that Dr. Mahon conducted multiple x-rays (objective diagnostic tests) on the claimant's lumbar spine during his 1996 evaluation. The only relevant statements from Dr. Mahon's report regarding potentially objective findings were the following:
Multiple x-ray films of the lumbar spine were made in the AP, lateral, right and left oblique, and spot — lateral projections. These films demonstrate evidence of previous surgical procedures including fusion from L3 to the sacrum.
Additionally, it is my opinion he sustained permanent aggravation of his prior existing pathology by the January 1996 injury. Again, assuming the history is correct, I feel this permanent aggravation is contributed an additional 5% partial impairment to the body as a whole.
As we interpret Dr. Mahon's report, the only objective medical findings observed by Dr. Mahon were x-ray views of the claimant's prior fusion surgeries, and Dr. Mahon inappropriately relied on the claimant's subjective history in assigning an additional 5% permanent anatomical impairment as a result of the claimant's 1996 accidents. After considering the reports of Dr. Tyrer and of Dr. Mahon, and all other evidence in the record, we find that the claimant failed to establish any alleged anatomical impairment to the lumbar spine resulting from the 1996 accidents by objective findings. Therefore, we find that the Administrative Law Judge's decision in this regard must be reversed.
After considering the claimant's age, education, work experience and the nature of the problems which he has experienced as a result of the 1996 accidents, we also find that the administrative law judge's award of a 35% impairment to the claimant's wage earning capacity was correct. In reaching that conclusion, we note that the claimant has undergone laminectomies, discectomies and eventually fusion surgery at the L4-5 and L5-S1 levels of the spine as a result of his 1977 injury. In addition, we note that reports from both Dr. Mahon and Dr. Tyrer have expressed surprise that the claimant was able to continue his employment as a truck driver as long as he did in light of his low back abnormalities. In reaching our decision, we are aware that the claimant was able to engage in significant home improvement activities as of April 1994, and may be capable of returning to that activity on a limited basis, if he chooses to return to work. In addition, we note that the claimant continued to work as a truck driver for the respondents until the accidents on January 2, 1996. However, the medical evidence also establishes that the claimant is not now physically capable of returning to truck driving, as he performed for the respondents, and in light of the claimant's age, very limited education, and limited transferable skills from his primary occupation as a truck driver, we find that the greater weight of the evidence establishes that the claimant has sustained a 35% loss to his earning capacity.
Ark. Code Ann. § 11-9-518(a)(1) (Repl. 1996) states:
Compensation shall be computed on the average weekly wage earned by the employee under the contract of hire in force at the time of the accident and in no case shall be computed on less than a full-time workweek in the employment.
In construing the term "time of the accident", the Arkansas Court of Appeals has held that, where the date of the "accident", and the date of the "disability" do not coincide, a claimant's claim for disability benefits is subject to the maximum weekly benefit rate in effect at the time a delayed disability occurs, but the compensation rate calculation must be based on the wages earned on the date of the accident. See Montgomery v. Delta Airlines, 31 Ark. App. 203, 791 S.W.2d 716, (1990).
In the present case, although the claimant seeks additional disability compensation beginning in 1996, we find that the claimant's relevant date of "accident" was the date of the claimant's 1977 injury. Therefore, the claimant's compensation rate for additional permanent disability benefits should be based on the claimant's average weekly wage that he earned in 1977. In reaching that conclusion, we note that the claimant has failed to prove by a preponderance of the credible evidence that he sustained any additional permanent anatomical impairment as a result of alleged injuries sustained in 1996. Because we find that the claimant failed to prove that he sustained any additional anatomical impairment as a result of the 1996 incidents, and in light of the claimant's extensive pre-existing back abnormalities as a result of his 1977 injury, we also find that the claimant has failed to show by a preponderance of the evidence that any additional injury he may have sustained in 1996 was the major cause of his 35% wage loss. Therefore, we find that the Administrative Law Judge's determination that the claimant's compensation rate should be based on his average weekly wage as earned in January of 1996 instead of 1977 must be reversed.
Finally, we believe that the Administrative Law Judge's change of physician from Dr. Tyrer to Dr. Shedd was appropriate. In reaching that decision, we note that Dr. Tyrer, a neurosurgeon specialist, first followed the claimant beginning in the late 1980's after the claimant's four back surgeries. Subsequently, the claimant presented to Dr. Tyrer approximately every other year for follow-up medical care as a result of the claimant's low back injuries. Following the claimant's 1996 accidents, Dr. Tyrer ultimately opined that no further surgery was indicated from a neurological standpoint, and Dr. Tyrer ultimately released the claimant to return as needed with no additional follow-up appointments scheduled. The respondents seem to assert on appeal that no additional medical care is reasonably necessary for the claimant's injuries. However, after reviewing the extensive medical record, and in light of the claimant's persistent complaints, we find that the record establishes that the claimantwill require long term maintenance from some physician. Moreover, we note that Dr. Mahon has ascertained abnormalities which he apparently deems more significant than Dr. Tyrer (who indicated that the claimant does not require any routine follow-up care following his 1996 injuries). Assuming as Dr. Tyrer has suggested, that no additional neurosurgical treatment will be necessary for the claimant's injuries, we find that the claimant's family physician is in the best position to monitor and prescribe the claimant's long term maintenance care for his low back injuries, and that the Administrative Law Judge's transition of the claimant's long term care to Dr. Shedd (with any reasonably necessary specialist referrals to Dr. Mahon) is the most appropriate means of providing the claimant's future long term care. Consequently, we find that the Administrative Law Judge's determination that the claimant should be entitled to a change of physician from Dr. Tyrer to Dr. Shedd was appropriate.
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 35% impairment to his earning capacity in excess of the permanent anatomical impairment established by the medical record, and we find that the claimant's future authorized treating physician should be Dr. Shedd. Therefore, we find that the Administrative Law Judge's decision in these regards should be affirmed. However, we find that the claimant failed to prove by a preponderance of the credible evidence that he sustained an additional 5% permanent anatomical impairment rated to the whole body as a result of an aggravation to his low back injury which occurred in 1996. In addition, we find that the claimant's compensation rate is properly based on his 1977 earnings rate and not the claimant's 1996 earnings rate. Therefore, we find that the Administrative Law Judge's decision in these regards must be reversed. In addition, we find that the claimant failed to prove by a preponderance of the evidence that he sustained a compensable anatomical impairment to the thoracic spine as a result of his 1996 work-related injury. 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. 1996). For prevailing in part 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 (Repl. 1996).
IT IS SO ORDERED.
Commissioner Humphrey concurs.
MIKE WILSON, Commissioner
CONCURRING AND DISSENTING OPINION
[20] I respectfully concur in part and dissent in part from the majority's opinion. I concur in the majority's finding that the claimant failed to prove by a preponderance of the evidence that he sustained an additional 5% permanent anatomical impairment rating to the body as a whole as a result of an aggravation to his low back injury which occurred in 1996. I further concur in the majority's finding that the claimant's compensation rate is properly based upon his 1977 earnings rate and not the claimant's 1996 earnings rate. In addition, I concur with the majority's finding that the claimant failed to prove by a preponderance of the evidence that he sustained a compensable anatomical impairment to the thoracic spine as a result of his 1996 work-related injury. However, I must dissent from the majority's finding that the claimant has sustained a 35% wage loss in excess of his permanent anatomical impairment and that the claimant's future authorized treating physician should be Dr. Shedd.In determining wage loss disability, the Commission may take into consideration the workers' age, education, work experience, medical evidence and any other matters which may reasonably be expected to affect the workers' future earning power. Such other matters are motivation, post-injury income, credibility, demeanor, and a multitude of other factors. 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). A claimant's lack of interest in pursuing employment with his employer and negative attitude in looking for work are impediments to our full assessment of wage loss.
The evidence simply does not support a finding that the claimant has sustained any wage loss. The claimant is a relatively young man who has demonstrated his business acumen by operating and managing an ongoing construction company. After his January 1, 1996 injury, the claimant opened up the Eddie Inskeep Son Construction business which was a carpentry and home remodeling business. The evidence reflects that the claimant helped with the installation of windows. He has climbed on ladders. He has done hammering and sawing and he has been up on top of a roof. Further, the evidence indicates that the claimant was actively managing construction projects as late as November of 1996. Therefore, based upon my review of the record, the claimant has both the intellect and experience to pursue other employment. He is capable of managing an ongoing business as well as physically capable of performing strenuous work when he desires. Therefore, I find that the claimant is not entitled to any wage loss disability benefits.
I also must dissent from the majority's opinion finding that the claimant is entitled to a change of physician to Dr. Shedd. In my opinion, a change of physician is not reasonably necessary. Dr. Tyrer addressed the claimant's additional medical care when he wrote:
I have told this patient that I do not see that any additional treatment is currently indicated or would be beneficial. he [sic] must again cope with his back and learn to live with it and adjust to it as he has done in the past. I have told him that I do not think his motor vehicle accident of [sic] January 1st, 1996 have had any appreciable adverse affect on his pre-existing chronic low back problem. [Clinic note dated 4/12/96.]
Dr. Tyrer has opined that additional medical treatment is not indicated for the claimant. Dr. Tyrer is a neurosurgeon, and I lend more credibility to his opinion than I do to Dr. Shedd's who is a family practitioner. In my opinion, Dr. Tyrer is in a better position to assess the claimant's need for future medical care. Therefore, I find that the claimant is not entitled to a change of physician.
For all the reasons discussed herein, I respectfully dissent in part and concur in part in the majority's opinion.