Opinion
CLAIM NO. E013449
OPINION FILED MAY 21, 1999
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by EDDIE H. WALKER, JR., Attorney at Law, Fort Smith, Arkansas.
Respondents represented by WAYNE HARRIS, Attorney at Law, Fort Smith, Arkansas.
Decision of Administrative Law Judge: Affirmed.
OPINION AND ORDER
[2] Respondents appeal an opinion and order filed by the Administrative Law Judge on May 6, 1998. In that opinion and order, the Administrative Law Judge determined that claimant's claim for additional benefits is not barred by the statute of limitations. Further, he awarded wage-loss benefits totaling 20% to the whole body.The Notice of Appeal filed by respondents advanced the argument that claimant's claim for additional benefits is barred by the statute of limitations. However, the appeal brief filed by respondents enumerated only the following issues: "1. Do the provisions of A.C.A. § 11-9-522 (b) (2) bar claimant's entitlement to wage loss disability benefits? and; 2. Did the claimant prove by a preponderance of the evidence entitlement to wage loss disability benefits equivalent to 20% to the body as a whole? Claimant's brief contained the following statement: "Although the Respondents argued at the Administrative Law Judge level that this claim is barred by the statute of limitations, that argument is not addressed in the Respondent's Brief; therefore, this Brief assumes that the statute of limitations argument has been abandoned by the Respondents." The Reply Brief filed by respondents addressed this assumption as evidenced by the following statement: "The claimant is correct that Respondents are not pursuing as a ground for appeal the argument that Claimant's claim for additional benefits is barred by the statute of limitations." Respondents have clearly stated their intent to abandon the statute of limitations issue. Therefore, we will not consider this issue. After conducting ade novo review of the entire record, we find that the decision of the Administrative Law Judge must be affirmed.
As an initial matter, we note that the compensable injury giving rise to this claim occurred in 1990. Accordingly, the amendments to the Arkansas Workers' Compensation Act, made by Act 796 of 1993, are inapplicable to the present claim.
On July 16, 1990, claimant sustained a work-related back injury. At the time of the injury, claimant was employed as a light inspector. She was diagnosed with a disc herniation at L4-5, and Dr. Paul Raby performed surgery. On August 9, 1991, Dr. Raby assigned an anatomical impairment rating of 10% to the whole body. Dr. Raby imposed permanent restrictions which are as follows: "She can lift 20 lbs. occasionally and she can lift 10 lbs. without problems. She shouldn't do any work where she has to do a lot of pushing, pulling, stooping or forward bending." Respondent employer agreed to accommodate her restrictions; therefore, claimant returned to work. Upon her return, claimant worked as an inspector on several lines.
Although claimant returned to work following her compensable injury, she continued to experience back pain. She stated that she began a diary of her medical treatment in 1990. She testified that she continued to receive treatment and medication for her back. The medical evidence supports claimant's testimony. In 1993, a MRI was performed. Comparing the results with an earlier study, Dr. W.T. Huskison stated: "There is a disc bulge centrally at L4-5 as described. It is similar in appearance to an earlier study. I do not see frank herniation present at this time." In a chart note dated January 30, 1995, Dr. Cesar treated claimant for an exacerbation of low back pain. He noted "left sciatica." Claimant testified that the following month, Dr. Fisher administered an injection for back pain. She stated that Dr. Fisher treated her in April and June of 1995 for back pain. A chart note dated June 2, 1995, authored by Dr. William Burt, indicated another exacerbation of low back pain radiating into the left leg. Claimant's back pain was characterized as "chronic."
In August of 1997, respondent employer instituted a "Transitional Return to Work Program" that permitted injured workers to perform light duty for a maximum of ninety days. Workers unable to perform all essential job functions at the end of the 90-day period were placed on a layoff. Claimant testified that she met with company representatives on August 25, 1997, to discuss the new program. She stated that she was asked to return to Dr. Carson, the company doctor, to discuss the possibility of removing her restrictions. Claimant stated that she returned to Dr. Carson; however, he refused to remove the restrictions. Before her lay off in November of 1997, claimant was reassigned to the press department. She was unable to satisfy the employer's requirements following the 90-day transitional period; therefore, her employment ceased on November 17, 1997.
Claimant testified that since the respondent employer refused to permit her to perform light duty on a permanent basis, she returned to the doctor to determine whether surgical intervention was appropriate. In a chart note dated November 4, 1997, Dr. J. Michael Standefer documented that claimant's back pain had "gradually worsened." His note also reflected that following surgery "[claimant] underwent a follow-up myelography which demonstrated an obvious focal extradural defect at L4-5 and consideration for surgical treatment entertained." His impressions were:
1. Residual chronic low back and intermittent left lower extremity pain status post percutaneous discectomy at the L4-5 level.
2. Degenerative disc disease at L4-5 with attendant disc bulge and associated lateral recess and stenosis and facet athropathy.
Dr. Standefer opined that no further surgical intervention was warranted.
Claimant testified that she could return to work performing two of the inspector jobs without violating her restrictions. She stated that she planned to use her left hand for gripping.
Respondents contend that an award of wage loss benefits is precluded here. Relying on Ark. Code Ann. § 11-9-522 (b) as a defense, respondents argued that since claimant is an employee and may bid on available jobs, no liability for wage-loss exists. The above-referenced statute provides:
However, so long as an employee, subsequent to his injury, has returned to work, has obtained other employment, or has a bona fide and reasonably obtainable offer of employment at wages equal to or greater than his average weekly wage at the time of the accident, he shall not be entitled to permanent partial disability benefits in excess of the percentage of permanent physical impairment established by a preponderance of the medical testimony and evidence.
The burden rests with respondents to prove claimant's employment, or the existence of a bona fide offer of employment at wages equal to or greater than her average weekly wage at the time of the accident. Ark. Code Ann. § 11-9-522 (c). Claimant testified that she anticipates returning to work for this employer. However, James E. Fesperman, Labor Relations Administrator, upon questioning by the Administrative Law Judge, conceded that respondents have failed to make a bona fide offer of employment to claimant since her departure. First, we are of the opinion that claimant's ability to bid on future jobs, and her good faith belief that she will be rehired by respondent employer fail to rise to the level of a bona fide and reasonably obtainable employment offer. More important, the testimony of Mr. Festerson compels a finding that respondents failed to meet their burden of proof. Therefore, we specifically find that Ark. Code Ann. § 11-9-522 (b) does not preclude an award of wage-loss benefits.
Since claimant is not barred from receiving an award of wage-loss benefits because of Ark. Code Ann. § 11-9-522 (b), we must now determine the degree of wage loss benefits, if any, claimant is entitled to receive. An injured worker is entitled to permanent benefits in excess of her anatomical impairment rating by demonstrating a diminution of her wage-earning capacity. Williams v, St. Vincent Infirmary, 59 Ark. App. 148, 954 S.W.2d 302(1997).
Claimant was 47 years old at the time of the hearing. Before her layoff, she had worked for respondents for about fourteen years. Claimant was born in Vietnam, and she was employed as a junior high school teacher in Vietnam. However, her limited grasp of English precludes her from teaching in the United States. She has substantial restrictions because of her job-related injury including: lifting 20 lbs., only occasionally, lifting no more than 10 lbs. frequently, and avoiding activities which entail frequent stooping, pushing, pulling, and forward bending.
Since her arrival in the United States, claimant has performed only menial jobs. For example, she cleaned house for her spouse's boss, worked in a sewing factory, and distributed books at General Tire's Adult Education Center. In 1978, claimant was hired as a press operator for respondents. Due to a lay off, claimant's employment lasted only eleven months. However, she resumed her employment with respondents in 1983. She stated she was working as a gas light inspector at the time of her injury. Following her injury, claimant testified that she worked as a roof top inspector. In 1994, her duties as an inspector changed, and claimant was responsible for checking leaks. Claimant stated that she did not receive any complaints regarding her job performance after the injury occurred. When her job ended, claimant was earning $12.89 per hour. She testified she worked forty hours each week.
Claimant stated that since her departure, she has periodically checked respondent employer's bid board. She has also drawn Unemployment Insurance benefits. Claimant has conducted a job search, and contacted the state rehabilitation services. However, her efforts to obtain employment have been unsuccessful.
Considering all relevant factors, we find that claimant is entitled to a wage-loss award totaling 20% to the whole body.
In reaching our decision, we note that the respondents have argued on appeal that claimant is not entitled to wage-loss benefits because it is not possible to determine whether claimant's inability to complete the Transitional Return to Work program was based on restrictions imposed due to claimant's compensable injury or her carpal tunnel syndrome. Respondents did not raise this issue at the hearing level. At the hearing, counsel for respondents specifically argued that any determination with respect to wage-loss was premature. Respondents theorized that claimant remained an employee of respondent employer, and had reasonable expectations of securing a future job earning wages equal to or greater than her pre-injury wages. It is also noteworthy that on cross-examination, claimant was questioned regarding entries she made in diary documenting medical treatment she received. Counsel for respondents specifically admonished claimant not to mention treatment she received for carpal tunnel syndrome.
The Commission and the courts have held that issues raised for the first time on appeal are not considered. Employers Ins. V. Didion Mid-South Corp., 65 Ark. App. ___, ___ S.W.2d ___ (1999); Paul Story v. Highland Resources, Full Commission Opinion filed August 4, 1998 ( E416465 E407572). Nevertheless, we are aware that we may only consider claimant's compensable unscheduled injury in awarding wage-loss benefits.Federal Compress Warehouse Company. v. Risper, 55 Ark. App. 300, 935 S.W.2d 279 (1996). Therefore, we specifically hold that claimant's wage-loss award is predicated entirely upon claimant's compensable low back injury.
The evidence shows that in a report dated August 9, 1991, Dr. Raby addressed claimant's restrictions: "As far as limitation is concerned, I believe this patient is qualified for light duty. She can lift 20 lbs. occasionally and she can lift 10 lbs. without problems. She shouldn't do any work where she has to do a lot of pushing, pulling, stooping or forward bending." When the Transitional Return to Work Program was instituted, claimant was instructed by respondent employer to consult Dr. Carson with respect to the removal of the restrictions Dr. Raby imposed. However, he refused to do so. Claimant also consulted Dr. Standefer. In a report dated November 4, 1997, Dr. Standefer stated that claimant's back pain had worsened, but he determined that claimant was not a surgical candidate. Nevertheless, he concluded that claimant's restrictions should remain in force. Claimant testified that following her compensable injury, she returned to the doctor several times each year for treatment of back pain. Claimant stated that her back pain is constant. Indeed, claimant's physicians have characterized her back condition as chronic. The medical evidence supports claimant's credible testimony. In awarding claimant wage-loss benefits totaling 20%, we did not consider claimant's carpal tunnel syndrome.
Further, the dissent advances the argument that claimant's ability to return to work following her 1990 back injury represents compelling evidence that no entitlement to wage-loss exists. We disagree. In Belcher v. Holiday Inn, 43 Ark. App. 157, 868 S.W.2d 22 (1993), the Court of Appeals held that claimant's return to work following an injury is not a permanent bar to an award of wage loss benefits. The court relied on interpretations of 11-9-522 (d) and (b) to support their position, reasoning that:
. . . [t]he intent of the legislature to impose a bar on wage-loss benefits conditioned on continued employment or offer of employment, rather than a permanent bar, is implied by the provision for reconsideration based on changed circumstances found in Ark. Code Ann. 11-9-522 (d).
Interpreting the statute in light of the remedial and beneficent purposes of the Act, we conclude that 11-9-522 (b) precludes a claim for wage loss benefits as a matter of law only during such time as the claimant has returned to work, obtained other employment, or has a bona fide and reasonably obtainable offer to be employed at wages equal to or greater than her average weekly wage at the time of the accident.
Claimant's return to the work force following a compensable injury is not a permanent bar to a wage-loss award; therefore, reemployment cannot be "compelling evidence" that no decrease in wage earning capacity exists. Otherwise, reemployment would be a permanent bar. Accordingly, we find no merit to this argument.
Therefore, after conducting a de novo review of the record, and for the reasons discussed herein, we find that claimant has proven by a preponderance of the evidence that she is entitled to wage loss benefits totalling 20% to the whole body.
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. For prevailing on this appeal before the Full Commission, claimant's attorney is hereby awarded an additional attorney's fee totaling $250.00.
IT IS SO ORDERED.
_______________________________
DISSENTING OPINION
[29] I must respectfully dissent from the majority opinion finding that claimant sustained a decrease in his earning capacity of 20% to the body as a whole. Based upon myde novo review of the entire record, I find that claimant has failed to meet her burden of proof on this issue.The record reflects that after sustaining her injury and undergoing a diskectomy at the L4-5 level, claimant eventually returned to work for respondent as a line inspector. Several years after returning to work claimant developed carpal tunnel syndrome until she was laid off in November of 1997. Claimant testified that she worked as an inspector for respondent up until her position was eliminated and she was moved to the press department. After claimant had been moved to the press department, respondent instituted a Transitional Return to Work Program which required all employees to be able to perform all essential functions of their regular job classification. This program allows employees who are returning to work from either a work-related or non-work-related injury a 90-day transitional period to achieve full work status. Pursuant to this program "employees who remain unable to do so after the transitional period, will go on leave of absence as appropriate for the individual circumstances."
Claimant's testimony with regard to why she was laid off is as follows:
They called me to the office and told me because I still have restrictions and I couldn't handle all of the job in the plant, and they laid me off, but when inspector opened back, they will call me, but they didn't call me.
A review of the record reveals that Dr. Paul Raby imposed certain restrictions upon claimant as a result of her back injury and surgery. These restrictions are:
She can lift 20 pounds occasionally and she can lift 10 pounds without problems. She shouldn't do any work where she has to do a lot of pushing, pulling, stooping or forward bending.
In addition to the permanent restrictions placed upon claimant for her 1990 compensable back injury, claimant also maintains permanent restrictions of no lifting greater than ten pounds; no vibration tools, no frequent pincher gripping, no frequent forceful gripping, and no frequent bending/twisting of wrist, and she is required to wear supports on her wrist as directed. These permanent restrictions relate to claimant's carpal tunnel syndrome, and not her compensable back injury.
Claimant testified in her deposition that her back surgery failed and that Dr. Standefer recommended that she undergo a second surgical procedure on her back. However, a review of Dr. Michael Standefer's November 4, 1997 report reveals that claimant's condition improved with conservative treatment, and a second surgical procedure was not advised. In his report, Dr. Standefer stated:
In reviewing the radiographic studies and comparing with the patient's current clinical exam, I do not believe any additional surgical intervention should be undertaken at this time.
After examining the claimant, Dr. Standefer released claimant from his care.
Respondent introduced three documents entitled"Restriction Review" which were used to assess claimant's abilities and restrictions during the transitional period. These documents identify a diagnosis of lumbar pain, sciatic, and lumbar surgery in addition to right-side carpal tunnel syndrome. It is unclear from reviewing these documents and from reviewing claimant's testimony whether her back or wrist restrictions were ultimately responsible for claimant's failure to satisfactorily complete the Transitional Return to Work Program. Based upon the evidence presented, it is just as likely that claimant was laid off from her employment because of the restrictions placed upon her for her carpal tunnel syndrome as it is that she was laid off because of her back restrictions.
The record reveals that after undergoing surgery on her lumbar spine in 1990, claimant was able to return to work and carry out her job as an inspector for numerous years. The record further reveals claimant was removed from this position as an inspector for economic reasons. Claimant's ability to return to work for several years is, in and of itself, compelling evidence that she has not sustained a decrease in her wage-earning capacity as a result of her compensable injury. There was no evidence presented that claimant's compensable injury played a role in her reassignment to the press department. Based on this record, in order to find that claimant was placed on lay off due to her minimal restrictions as outlined above would require me to resort to impermissible speculation and conjecture. Conjecture and speculation, even if plausible, cannot take the place of proof.Ark. Dept. of Correction v. Glover, 35 Ark. App. 32, 812 S.W.2d 692 (1991). Dena Construction Co. v. Herndon, 264 Ark. 791, 575 S.W.2d 155 (1970). Arkansas Methodist Hospital v. Adams, 43 Ark. App. 1, 858 S.W.2d 125 (1993).
For those reasons set forth herein I must respectfully dissent from the majority opinion.
______________________________ MIKE WILSON, Commissioner