Opinion
CLAIM NO. E401056
OPINION FILED SEPTEMBER 3, 1996
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by ERWIN DAVIS, Attorney at Law, Fayetteville, Arkansas.
Respondents No. 1 represented by CURTIS L. NEBBEN, Attorney at Law, Fayetteville, Arkansas.
Respondent No. 2 represented by JUDY W. RUDD, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed.
OPINION AND ORDER
An Administrative Law Judge filed an opinion and order in the above-captioned case on October 9, 1995, and made the following findings of fact relevant to this appeal: (1) claimant had suffered a wage loss disability in the amount of 15% as a result of his compensable injury, and (2) the Second Injury Fund bore no liability in this case.
Respondents now appeal from that opinion and order, contending that claimant has not met his burden of proof concerning wage loss disability and, even if he has, the requirements for establishing Second Injury Fund liability have been met.
Following our de novo review of the entire record, we find that claimant has proven, by a preponderance of the credible evidence, that he has sustained a wage loss disability in the amount of 15% as a result of his compensable injury of January 1, 1994. We further find that a preponderance of the evidence establishes that the Second Injury Fund bears no liability in this case. The decision of the Administrative Law Judge must therefore be affirmed.
Claimant sustained a compensable injury on or about January 1, 1994, when a scaffold collapsed as he walked across it in the course of his duties as a bricklayer. After attempting to continue working for a period of time, claimant presented with "low back and right lower extremity pain at least to mid-calf region" to Dr. Cyril A. Raben on February 1, 1994. Dr. Raben assessed claimant as having:
(1) Low back pain without clear cut signs of radiculopathy.
(2) Question of pseudoarthritis and/or damage to previous fusion extending from L4 to the sacrum.
(3) Abnormal motion segments at 2-3 levels above his previous fusion mass.
Claimant had sustained a previous low back injury in 1977, while working in Texas. This injury appears to have involved significant surgical intervention, including a fusion. Claimant testified that he received either a 14% or 22% permanent impairment rating as a result of this surgery, but there is no medical evidence to this effect. Furthermore, claimant's testimony, which we find to be credible, clearly established that this previous injury (after completion of rehabilitation) caused no diminution in his ability to engage in heavy labor — which he continued to do until the January 1, 1994, injury.
After following claimant for some time, Dr. Raben opined on May 20, 1994, that:
he needs to have an operative procedure that would be front and back fusion, posterior first with reduction of the spondylolisthesis, posterior lateral fusion followed by an anterior lumbar interbody fusion with Dowell fibular strut pinning of the L4 through S1 vertebral bodies with a 3-4 anterior lumbar interbody fusion as well.
Claimant consulted Dr. J.B. Blankenship on July 15, 1994, for a second opinion. Dr. Blankenship noted that he and Dr. Raben tended to "differ slightly" in approaching injuries such as claimant's, and recommended an "L3 through S1 pedicular fixation with lateral fusion with iliac crest autograft." However, Dr. Blankenship's final analysis was that:
My bottom line on this gentleman is that unless he is suffering quite a bit from intractable back pain then the gentleman needs to think long and hard before he has any operation on his lower back for fusion.
Claimant has thus far not undergone surgery, and in his May 20, 1994, office note cited above, Dr. Raben assessed an 18% permanent impairment rating which respondents have accepted.
We specifically find that claimant is entitled to a 15% wage loss disability as well. Ark. Code Ann. § 11-9-522(b)(1) (Repl. 1996) provides that:
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.
Claimant does have a high school diploma and has completed two years of junior college. He also is qualified in welding, and has worked in several other jobs involving strenuous labor, such as carpentry and pest-control. It appears from the record that claimant's only experience with sedentary work was as a supply clerk in the army. As stated previously, at the time of injury, claimant worked as a bricklayer.
Unfortunately, in the wake of his compensable injury, Dr. Raben has opined that claimant "will not be able to remain as a brick mason." Claimant's current occupation is thus most likely eliminated from his future, and Dr. Raben's additional recommendations cast a sizable shadow on his prospects of returning to the general type of work with which he is familiar:
I would also suggest . . . job reeducation, lifestyle restructure, and reeducation.
From Dr. Raben's broad-based recommendations (taken from his May 20, 1994 office note), it appears that claimant's chances of returning to heavy labor have been considerably diminished. Moreover, claimant is 52 years old and has sustained a significant permanent anatomical impairment of 18%. While able to read, write, and perform ordinary math, claimant has little in the way of experience or skills that would recommend him to the sedentary work force. From these circumstances, we find that claimant's earning capacity has been diminished by his compensable injury, and that he is entitled to a wage loss disability rating of 15%.
In addition, we specifically find that the Second Injury Fund bears no liability in this case. Second Injury Fund liability is triggered when the requirements set out in Mid State Constr. Co. v. Second Injury Fund, 295 Ark. 1, 746 S.W.2d 539 (1989), have been met. Those requirements are:
(1) The employee must have suffered a compensable injury at his present place of employment.
(2) Prior to that injury, the employee must have had a permanent partial disability or impairment.
(3) The disability or impairment must have combined with the recent compensable injury to produce the current disability status.
The first requirement from Mid State has obviously been met, since claimant did sustain a compensable injury while working for respondent employer. Also, claimant has indicated that he did receive a permanent impairment rating from the 1977 injury. However, claimant testified that, after the prior injury and attendant surgery, he returned to manual labor and performed such work for fifteen years without pain or limitation until his injury of January 1, 1994. Indeed, it appears from the record that essentially all of claimant's current pain and limitations can be traced only as far back as the January 1, 1994, injury. In addition, we note that even when Dr. Raben issued the 18% permanent impairment rating on May 20, 1994, he made no reference to claimant's previous injury. We are thus unable to conclude that claimant's previous impairment combined with his recent compensable injury to produce his current disability status. Accordingly, we specifically find that the Second Injury Fund bears no liability in this case.
From our de novo review of the entire record, and for the reasons discussed herein, we specifically find that claimant has proven, by a preponderance of the credible evidence, that he has sustained a 15% wage loss disability as a result of his compensable injury on January 1, 1994. We further find, according to a preponderance of the evidence, that the Second Injury Fund bears no liability in this case. The decision of the Administrative Law Judge must therefore be, and hereby is, affirmed.
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 on this appeal before the Full Commission, claimant's attorney is hereby awarded an additional attorney's fee in the amount of $250.00 as provided by Ark. Code Ann. § 11-9-715(b) (Repl. 1996).
IT IS SO ORDERED.
Commissioner Holcomb dissents.