Opinion
CLAIM NOS. D903112 and E004470
OPINION FILED SEPTEMBER 13, 1994
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE JAMES F. SWINDOLL, Attorney at Law, Little Rock, Arkansas.
Respondents No. 1 represented by the HONORABLE H. CHARLES GSCHWEND, Attorney at Law, Little Rock, Arkansas.
Respondent No. 2 represented by the HONORABLE DAVID L. PAKE, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed as modified in part and reversed in part.
OPINION AND ORDER
Respondents No. 1 and Respondents No. 2, the Second Injury Fund, appeal an opinion and order filed by the administrative law judge on March 7, 1994. In that opinion and order, the administrative law judge found that the claimant sustained a 35% impairment to her earning capacity in addition to the permanent physical impairment established by the medical evidence. In addition, the administrative law judge found that the Second Injury Fund has liability.
After reviewing this matter, we find that the preponderance of the evidence establishes that the claimant sustained a 25% impairment to her wage earning capacity in addition to the percentage of permanent physical impairment established by the medical evidence. Therefore, we find that the administrative law judge's decision in this regard must be affirmed as modified. However, we find that the Second Injury Fund does not have liability. Consequently, we find that the administrative law judge's decision in this regard must be reversed.
The claimant sustained two admittedly compensable injuries to her low back while employed by the respondent employer as a licensed practical nurse. In addition, she had previously injured her low back while employed as a licensed practical nurse for a different employer in 1984. As a result of this 1984 injury, Dr. Jim Moore, a neurosurgeon, performed a partial hemilaminectomy, a medial facetectomy, a foraminotomy, a diskectomy, and a fat graft. Dr. Moore assigned a 10% permanent impairment rating, and he released her to return to work without imposing any restrictions that he would not have imposed even if she had not injured her back. On July 25, 1986, the Commission entered an order approving the parties' joint petition for settlement of this claim.
The claimant began working for the respondent employer in June of 1986. On February 20, 1989, she sustained an admittedly compensable injury when she and a combative patient fell to the floor, with the patient landing on top of the claimant. As a result of that incident, she again came under the care of Dr. Moore, and Dr. Moore performed basically the same type surgical procedure which he performed in 1984, again at the L5-S1 level. Dr. Moore assigned a 10% permanent physical impairment rating as a result of this injury, and he released the claimant to return to work without imposing any restrictions that he would not have imposed regardless of whether she had injured her back or not. The claimant returned to work for the respondent employer performing the same duties. However, she continued to experience low back soreness and discomfort, and, on December 24, 1989, she sustained the second injury to her low back while employed by the respondent employer. Dr. Moore determined that this was a sprain/strain type injury. Dr. Moore released her to return to work on February 20, 1990, but the claimant was unable to obtain employment as a licensed practical nurse due to the limitations that have resulted from these injuries. At his deposition, Dr. Moore opined that she sustained a 3-5% impairment as a result of this injury, and the parties have agree to a 4% permanent physical impairment.
When determining the degree of permanent disability sustained by an injured worker, the Commission must consider the degree to which the worker's future wage earning capacity is impaired. In addition to medical evidence demonstrating the degree to which the worker's anatomical disabilities impair her earning capacity, the Commission must also consider other factors, such as the worker's age, education, work experience, and any other matters which may affect the worker's future earning capacity, including the degree of pain experienced by the worker. Ark. Code Ann. § 11-9-522 (1987); Tiller v. Sears, 27 Ark. App. 159, 767 S.W.2d 544 (1989).
In the present claim, the claimant was thirty years old at the time of the March 5, 1993, hearing. She graduated from high school. In addition, she attended school for approximately one year to receive the training necessary to obtain her practical nurses license, and she received emergency medical technician training for approximately one year. Also, after she stopped working for the respondent employer after the second injury, she completed a one and one-half (1 1/2) year computer programming course at a vocational technical school. Although respondents no. 1 paid for a 6 week vocational rehabilitation evaluation, the claimant apparently paid for all of the expenses related to the computer training, except for the expenses paid with grants. She finished at the top of her class with a 3.8 grade point average. As discussed, the claimant's primary work experience is in the medical field. In this regard, she has worked as a licensed practical nurse and as an emergency medical technician for an ambulance service. As a licensed practical nurse for the respondent employer and for her previous employer, she was responsible for overseeing the aides and for the care of patients.
With regard to her current condition, the claimant testified that lifting exacerbates her problems and results in the need for medication and bed rest. She also testified that she cannot sit or stand for long periods, and she testified that she has difficulty climbing stairs due to pain in her legs. She wears a TENS unit 5 to 6 days each week, and she would wear it more often except for the fact that it causes a skin irritation. She has applied for a number of jobs in the medical field as well as in the computer field, and she has been unable to obtain employment. However, she testified that she feels that she is capable of working as a computer programmer.
Considering all of the relevant factors, we find that the claimant sustained a 25% impairment to her earning capacity in addition to the permanent physical impairment established by the medical evidence. In this regard, the claimant is young. Her medical training has resulted in a number of skills which are transferable to lighter duty nursing or other medical positions compatible with her restrictions. Although she is physically restricted as a result of her injuries, her performance in school establishes that she has the physical ability to function in such situations and that she has the intellectual capacity to perform exceptionally well in different situations. Consequently, we affirm the administrative law judge's decision in this regard, as modified.
With regard to the liability of the Second Injury Fund, the Fund becomes liable only after three requirements have been satisfied. These requirements are as follows:
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.
Mid-State Construction, supra.
As discussed, in Mid-State, supra, the Court found that the prior condition must combine with the compensable injury "to produce a disability greater than that which `would have resulted from the last injury, considered alone and of itself.'" (Quoting Ark. Code Ann. § 11-9-525 (b) (1987). Consequently, "[i]f the more recent injury alone would have caused the claimant's current disability status, the Second Injury Fund has no liability." Arkansas Highway and Transportation Department v. McWilliams, 41 Ark. App. 1, 846 S.W.2d 670 (1993). In determining whether an impairment combined with the compensable injury to produce a greater degree of disability, we must consider the nature of the disability or impairment. Mid-State Construction, supra. The mere fact that the claimant had a preexisting disability or impairment is not sufficient in itself to base a finding that the impairment combined with the work-related injury presently being considered to cause a greater degree of disability. McWilliams, supra.
In the present claim, we find that the preponderance of the evidence fails to establish that the claimant's 1984 injury combined with the injuries sustained in the employment of the respondent employer to produce the current disability status. Instead, we find that the evidence establishes that the compensable injuries sustained in the course of the claimant's employment with the respondent employer were sufficient in themselves to produce her disability status.
In this regard, the 1984 injury and the 1989 injuries were to the same area of the claimant's lumbar spine. However, the mere fact that the claimant previously underwent surgery in the same area of the body and ultimately received an impairment rating for that surgery simply is not sufficient in itself to impose liability on the Second Injury Fund. Arkansas Highway and Transportation Department v. McWilliams, 41 Ark. App. 1, 846 S.W.2d 670 (1993). The evidence indicates that the claimant recovered completely from the 1984 surgery and that she did not experience any residual difficulties as a result of that injury and the resulting surgery. She was able to perform relatively heavy duties as an emergency medical technician and as a licensed practical nurse with no difficulty, and she testified that the surgery did not result in any change in her ability to physically do things as she did before the injury and surgery. She testified that she was able to do anything after the surgery that she could do before and that her back was "fine and back to normal" prior to the 1989 injuries.
Furthermore, Dr. Moore testified that the February 20, 1989, injury was sufficient in itself to result in the claimant's current state of disability. As discussed, Dr. Moore's testimony indicates that he did not impose any real restrictions on the claimant after the 1984 injury; however, after the 1989 injuries, he restricted her lifting, pushing, pulling, squatting, crawling, climbing, and overhead reaching, and he indicated that she would need to alternate sitting and standing. Furthermore, Dr. Moore testified that the February 20, 1989, incident in itself was sufficient to cause a herniated nucleus pulposus, regardless of whether or not the claimant had ever experienced any back problems, and he testified that her disability could have been caused by the December 24, 1989, incident. Moreover, he testified that the likelihood that a subsequent injury is associated with a prior surgery decreases as time passes from the first surgery.
In short, the evidence establishes that the injuries sustained by the claimant in the course of her employment with the respondent employer were sufficient in themselves to create her current disability status. Therefore, we find that the Second Injury Fund does not have liability.
Accordingly, based on our de novo review of the entire record, and for the reasons discussed herein, we find that the claimant sustained a 25% impairment to her earning capacity in addition to the degree of permanent impairment established by the medical evidence. Therefore, we find that the administrative law judge's decision in this regard must be affirmed as modified. However, we find that the Second Injury Fund does not have any liability. Consequently, we find that the administrative law judge's decision in this regard must be reversed.
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 (1987). 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 in accordance with Ark. Code Ann. § 11-9-715 (b) (1987).
IT IS SO ORDERED.
Commissioner Humphrey concurs.