Opinion
CLAIM NO. E218555
OPINION FILED MAY 18, 1998
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by GARY DAVIS, Attorney at Law, Little Rock, Arkansas.
Respondents represented by WALTER MURRAY, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Reversed.
OPINION AND ORDER
[2] An Administrative Law Judge entered an opinion and order in the above-captioned claim on September 9, 1997, finding that claimant is not entitled to a rehabilitation evaluation or wage loss disability benefits. Claimant now appeals from that opinion and order, contending that he is entitled to wage loss disability benefits.Following a de novo review of the entire record, I find that claimant has sustained a 5% loss to his wage earning capacity. The decision of the Administrative Law Judge is therefore reversed.
Claimant sustained a compensable low back injury on August 13, 1992, while attempting to remove a truck bed with the assistance of a co-worker. In a previous opinion and order dated December 21, 1995, an Administrative Law Judge found that claimant's healing period had ended and that surgical treatment recommended by Dr. Richard Peek was not reasonably necessary. These findings were affirmed and adopted by a majority of the Full Commission on September 5, 1996. At the second hearing held on September 3, 1997, the parties stipulated that claimant had sustained a compensable injury and had received associated medical and indemnity benefits, as well as a 5% permanent anatomical impairment rating.
An initial MRI performed on November 14, 1992, revealed mainly degenerative-type findings in claimant's lumbar spine, though Dr. Thomas M. Fletcher, a Little Rock neurosurgeon, reached a different conclusion on March 23, 1993:
The MR scan of the lumbar spine was reviewed and I would interpret this differently from the radiologist's report on the MR scan which was made on November 14, 1992. I think there is a definite disc protrusion at the L5-S1 level along with, what appears to be, a small free fragment of disc.
Dr. Fletcher did not anticipate that claimant's abnormality would heal with conservative measures, and opined that surgery would likely be required. Dr. Richard Peek appears to have agreed with this assessment by September, 1993, after treating claimant conservatively for some time without success. Dr. Peek had also obtained a post-diskographic CT scan (September 13, 1993) which revealed foraminal tears at the L3-4 and L5-S1 levels. Contrary to the assessment of Drs. Fletcher and Peek, Dr. Reginald Rutherford had previously cautioned against surgery in a report of April 7, 1993.
After reviewing a videotape that depicted claimant "vacuuming a car," as well as "raking leaves, bending and twisting and lifting leaves and pine needles," Dr. Peek canceled claimant's surgery on October 22, 1993. However, after discussing this documentation with claimant, Dr. Peek stated on October 29, 1993, that:
considering all of the situation and the fact that he was taking medications while performing activities and they were not for an extended period of time, certainly not for an eight-hour period, and in going over all of this and dictating this in the presence of the patient we will proceed with the surgical procedure as previously discussed.
Subsequently, Dr. Rutherford once again provided a different opinion (on November 22, 1993): "In my opinion Mr. Patterson has achieved maximum medical improvement from his work related injury . . . Surgical intervention is not considered a viable treatment option for the above cited observations." Claimant apparently never underwent any surgery for his lower back, but continued to see Dr. Peek sporadically during 1994 (July 26 and September 27) and 1995 (January 26 and July 6). On each of these occasions (except July 26, 1994), Dr. Peek recommended that claimant avoid "bending, twisting, and lifting over 30 lbs."
Claimant himself testified that he is thirty-eight years old and possesses a tenth-grade education. For the seventeen years preceding his injury, claimant had performed auto body repair work, which involved:
Bending, stooping, twisting, lifting all the time. You're all the time picking something up, taking something off. You've got a lot of weight involved picking different parts up, putting them on, leaning over the vehicle to put a fender on, or a hood on. You're all the time bending, and lifting, and stooping, and all that.
Claimant described some of his other job functions as follows:
Q. And how do you go about doing that?
A. The quarter panel you have to take and cut off and then trim it, and then you take the new panel and put it on there and weld it, and you have to do body work, do your seams. You have to get under the vehicle to do inside the wheel well, and all that.
Q. When you say that you cut it, how do you do that?
A. It's called a body hammer and you cut if off with a body hammer. It's an air hammer.
Q. All right. Is there some welding involved?
A. Yes.
Q. All right. Do you have to use wrenches, and so forth, to bolt the quarter panel, or whatever it is that you might be working with, to the vehicle?
A. Well, on quarter panels you don't bolt them on. Those are all welded on, but you do have to take off your bumper, your taillight assemblies, your deck lid. You're going to cut the back glass out if it's hit high enough. You may have to remove one of the doors to replace it, you know. It just depends on how it's hit.
At the time of his injury, claimant earned a $9.50 per hour base wage with increases of $.50 to $1.00 per hour after reaching forty "estimate hours." Claimant also testified that "on a real bad slow week" his wages might be as little as $300 but had been as high as $1250 per week. In addition, claimant denied performing any other kind of work before entering auto body repair. As of the hearing, however, claimant had been assisting his brother to install above-ground swimming pools. Specifically, claimant would "go behind" his brother and "hook up the pump and the filter system on them." Claimant stated that he earned between $200 and $250 per week (net) helping his brother, but that the work was seasonal and would soon end.
Claimant further explained that he had looked for work in his field, but had met with no success since "everybody pretty much knows my situation and they don't want to take the risk of me getting hurt at their place of business and having to go through any kind of stuff like that." As for other types of work, claimant plainly stated that auto body repair is "all I know," and that he was unaware of any light duty within that craft. With regard to his personal history, claimant admitted that he had been convicted of a felony in 1986, as well as numerous other offenses including hot check violations, domestic abuse, public intoxication, and DWI.
Ark. Code Ann. § 11-9-522(b) (1987) 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.
In my opinion, claimant's credibility is suspect at best given his significant criminal history and initial explanation that he no longer hunts because "carrying the gun is so heavy." Claimant later admitted that, as a convicted felon, he is not allowed to carry a gun. Accordingly, I am not impressed by claimant's own testimony regarding his limitations. I also recognize that the claimant has exhibited lack of motivation in seeking re-employment which together with his credibility are factors which I have considered in determining entitlement to wage loss disability. I agree with the Administrative Law Judge that these factors preclude a meaningful vocational rehabilitation assessment.
This does not, however, entirely preclude his entitlement to wage loss. While claimant is relatively young, he does not possess a high-school diploma and his work history is essentially one dimensional — consisting almost entirely of auto body repair. In addition, claimant has objectively identifiable foraminal tears at two levels in his lumbar spine, a condition for which at least one of his treating physicians has recommended surgery. Furthermore, that same physician has imposed restrictions on the amount of bending, twisting, and lifting of over 30 pounds that claimant should perform.
It is true that the videotape evidence shows claimant performing various tasks as noted by Dr. Peek. However, these filmed interludes do not necessarily address claimant's ability to perform such tasks for the sustained periods of time ordinarily required by non-sedentary employment (and claimant's education and experience place him in a poor position to obtain sedentary employment). Finally, I note that claimant has sustained a 5% permanent anatomical impairment rating to the whole body.
Though unimpressed by his credibility, I find that claimant's medically documented restrictions, limited education, narrow work experience, and degree of permanent anatomical impairment entitle him to an award of wage loss disability in the amount of 5%. The decision of the Administrative Law Judge is thus 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 this opinion 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 as provided by Ark. Code Ann. § 11-9-715(b) (1987).
IT IS SO ORDERED.
CONCURRING OPINION
[23] While I agree with the principal opinion to the extent it finds claimant entitled to at least some wage loss disability, it is my opinion that the circumstances of this case have left claimant with far more than a 5% loss to his wage earning capacity. For this reason, I concur with the findings of the principal opinion.PAT WEST HUMPHREY, Commissioner
DISSENTING OPINION
[27] After reviewing the entire record, I find that the claimant has failed to prove by a preponderance of the credible evidence that he has sustained any impairment to his earning capacity in excess of the 5% anatomical impairment accepted by the respondents. Therefore, I respectfully dissent from the majority opinion reversing the administrative law judge's decision and awarding the claimant a 5% wage loss.In reaching my decision, I note that the claimant has been diagnosed with a relatively minor non-surgical back injury as a result of his 1992 compensable injury. In addition, I am persuaded by the fact that, although the claimant asserts that he has ongoing physical limitations, the claimant has not submitted into the record any reports documenting medical treatment for over a two year period prior to the most recent hearing held on September 9, 1997.
Furthermore, videotapes offered into evidence at a prior hearing and incorporated into the record in the present case show the claimant on September 23, 1993 and October 7, 1993 operating a leaf blower, raking, pushing a wheelbarrow, stooping and bending to pick up leaves, leaning and bending over to vacuum out the back of a car, and squatting, with no apparent physical limitations. Interestingly, in a deposition taken on October 15, 1993, the claimant specifically denied being able to do yard work, raking, or vacuuming, stating that he avoids bending, stooping and pushing. When asked whether he had ever been a plaintiff or a defendant in court in that same deposition, the claimant failed to mention charges relating to a stolen checkbook, domestic abuse, contempt of court, and interstate trafficking in stolen motor vehicles. After considering the evidence relevant to the claimant's credibility, and considering the lack of any corroborating medical documentation for over two years prior to the hearing, I find the claimant's uncorroborated testimony on the issue of his current medical limitations to be entitled to no weight.
With regard to the claimant's motivation to return to work, I note that the claimant admits that he has applied for work at only one business (a body shop) in the last five years, for any work other than assisting in his brother-in-law's swimming pool business.
After considering the claimant's relatively young age, his education, work experience, the relatively minor nature of his work-related back injury and the lack of documented medical treatment for over two years prior to the hearing, his apparent lack of motivation to seek re-employment within any physical restrictions that he may be experiencing at this time, and all other relevant factors, I find that the claimant has failed to prove by a preponderance of the credible evidence that he sustained any impairment to his wage earning capacity as a result of his 1992 work-related injury. Therefore, for the reasons discussed herein, I respectfully dissent from the majority opinion awarding the claimant a 5% loss to his wage earning capacity.
ELDON F. COFFMAN, Chairman