Opinion
CLAIM NO. E409308
OPINION FILED FEBRUARY 11, 1998
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE FLOYD M. THOMAS, JR., Attorney at Law, El Dorado, Arkansas.
Respondents represented by the HONORABLE JAMES C. BAKER, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed as modified.
OPINION AND ORDER
[2] The respondents appeal an opinion and order filed March 24, 1997 by an administrative law judge. In that opinion and order the administrative law judge found:
1. The Arkansas Workers' Compensation Commission has jurisdiction of this claim.
2. On May 23, 1994, the relationship of employee-employer-carrier existed among the parties.
3. On May 23, 1994, the claimant earned wages sufficient to entitle him to weekly compensation benefits of $267.00/$200.00, for total disability and permanent partial disability benefits.
4. On May 23, 1994, the claimant sustained an injury arising out of and in the course of his employment.
5. The claimant was temporarily totally disabled for the periods beginning June 20, 1994 through July 17, 1994; and October 1, 1994 through April 15, 1996.
6. The claimant's healing period ended April 15, 1996.
7. The claimant has a permanent physical impairment in the amount of 10% to the body as a whole.
8. In addition to his anatomical impairment, wherein the claimant's age, education, permanent restrictions and limitations are considered, he has sustained a loss of earning capacity in the amount of 70%.
9. The respondents shall pay all reasonable hospital and medical expenses arising out of the injury of May 23, 1994.
10. The respondents have controverted the payment of permanent disability benefits in excess of 10% to the body as a whole and the difference between the claimant's appropriate compensation rate for both temporary total disability and permanent partial disability and the amounts paid.
After reviewing the entire record de novo, we affirm the administrative law judge's decision as modified. We find that the claimant earned wages sufficient to entitle him to weekly compensation benefits of $203.00 for temporary total disability and $154.00 for permanent partial disability. In addition, we find that the claimant is entitled to loss of wage earning capacity in the amount of 20% to the body as a whole.
The claimant sustained an admittedly compensable injury on May 23, 1994, when he slipped on a pond bank. Dr. James Young treated the claimant and referred him to Dr. P. B. Simpson, a neurosurgeon. Dr. Simpson treated the claimant conservatively and eventually referred him to an orthopedist, Dr. John Lytle. The claimant treated with Dr. Lytle for a period and then returned to Dr. Simpson's care. The claimant continued to experience difficulties, and in November, 1994, he was referred to Dr. Thomas Fletcher for a second opinion. After a myelogram and MRI, Dr. Fletcher recommended surgery. The claimant was granted a change of physician to Dr. Jim J. Moore, who first examined the claimant in April, 1995. Dr. Moore referred the claimant to Dr. William Ackerman for steroid injections, but these failed to alleviate the claimant's symptoms.
On September 19, 1995, Dr. Moore performed a "right partial decompressive hemilaminectomy, medial facetectomy, lysis of adhesions, separation of venous plexus, mobilization of nerve, entrance into disk space and removal of annular disk, and fat graft under microsurgical technique." In April, 1996, Dr. Moore reported that the claimant had reached the end of his healing period, and he assessed the claimant with a 10% permanent impairment rating. Dr. Moore stated:
There is no objective evidence of any additional problems developing or present that would tend to incriminate any indication for further aggressive recommendations.
Prior to surgery, the claimant underwent a functional capacity evaluation which suggested overt symptom exaggeration and a failure of 41% of the validity criteria. The FCE placed claimant in the light category of work, defined as exerting up to 20 pounds occasionally, 10 pounds frequently or a negligible amount of force constantly.
In June, 1996, the claimant began working with Mr. Paul Hugen, a rehabilitation counselor. Dr. Moore granted the counselor permission to attempt a trial of light-duty employment. This trial precluded frequent bending, stooping, crawling, climbing, twisting, or lifting over twenty pounds. Mr. Hugen sent the claimant 11 job leads, offering full employment paying from $5.00 to $6.00 per hour for a 40 hour week. The claimant contacted only two prospective employers concerning job placement. He failed to pursue any of the other job leads.
The claimant has undergone psychological counseling. Dr. Patrick Caffey performed a MMPI on the claimant on October 15, 1996, reporting:
In summary, the results of the MMPI indicate considerable depression and emotional turmoil in a man who is preoccupied with somatic difficulty. Secondary gain may be associated with his physical concerns. He appears to be having difficulty with sleep, concentration, and general discomfort. He seems to be somewhat socially isolated, obsessively worrying about himself. There also may be some rumination about suicidal behavior. Stress and tension may be playing a role in his discomfort and he appears inclined to exaggerate even minor pain. The '83 norms indicate that surgery is not likely to be of help in controlling or eliminating pain. It was noted that psychological techniques including biofeedback may be helpful in reducing anxiety and stress and, in turn, decrease or help with pain. The profile does indicate some tendency toward drug dependency but he may respond well to antidepressants.
The respondents appeal the administrative law judge's decision finding that the claimant is entitled to the maximum compensation rate. The respondents conceded miscalculation of the proper compensation rate. However, the respondents contend that the weekly temporary total disability benefit rate is $199.00. However, our calculations indicate that the claimant is entitled to a weekly temporary total disability benefit rate of $203.00.
Ark. Code Ann. § 11-9-518 provides:
(a)(1) Compensation shall be computed on the average weekly wage earned by the employee under the contract for hire in force at the time of accident and in no case shall be computed on less than a full-time workweek in the employment.
(2) Where the injured employee was working on a piece basis, the average weekly wage shall be determined by dividing the earnings of the employee by the number of hours required to earn the wages during the period not to exceed fifty-two (52) weeks preceding the week in which the accident occurred and by multiplying the hourly wage by the number of hours in a full-time workweek in the employment.
(b) Overtime earnings are to be added to the regular weekly wages and shall be computed by dividing the overtime earnings by the number of weeks worked by the employee in the same employment under the contract of hire in force at the time of the accident, not to exceed a period of fifty-two (52) weeks preceding the accident.
(c) If, because of exceptional circumstances, the average weekly wage cannot be fairly and justly determined by the above formulas, the commission may determine the average weekly wage by a method that is just and fair to all parties concerned.
In the present case, the respondents' pay records indicate that the claimant worked 36 weeks during the 52 weeks preceding the week of the injury. The claimant earned an hourly rate initially of $4.50 and later received an increase to $4.75. The claimant worked an average of just over 60 hours per week. Evidence was presented that the claimant was a seasonal employee, working only 36 weeks per year. During the winter months, the claimant testified he drew unemployment until respondents rehired him for the season. The employment records reflect that the claimant received $10,954.00 in payment in the 36 weeks preceding his compensable injury. This equals an average weekly wage of $304.27 with a compensation rate of $203.00 for temporary total disability under Ark. Code Ann. § 11-9-501(b) and a permanent partial disability rate of $154.00 under Ark. Code Ann. § 11-9-501(d).
The claimant contends that his average weekly wage should be calculated based on the $405.00 per week salary he was to receive. The claimant testified that, prior to his May 23, 1994 injury, he had received a promotion to farm manager. As farm manager, the respondents would furnish the claimant a residence, company vehicle, and regular salary of $405.00 per week. At the time of the injury, the claimant had not moved into the residence; nor had he begun receiving the regular salary. Pursuant to Ark. Code Ann. § 11-9-518(a)(1), the claimant's average weekly wage is to be calculated based upon the contract of hire the claimant was under when he was injured. In this case, the claimant had not yet received the promotion to farm manager. The evidence shows that he was not receiving the farm manager's salary, and he was not living in the residence. Therefore, we find that the claimant's average weekly wage was $304.27, entitling him to $203.00 per week for temporary total disability benefits. We thus order the respondents to pay the claimant the difference between this rate and the $127.00 they previously paid him. We find that the claimant should receive these benefits through April 15, 1996, the end of his healing period.
The administrative law judge found that the claimant sustained a loss of earning capacity in the amount of 70% to the body as a whole. The claimant sustained an injury to his back, a part of his body not scheduled under Act 796. Therefore, Ark. Code Ann. § 11-9-522 controls his entitlement to permanent disability benefits. Permanent disability compensation is paid where the permanent effects of a work-related injury incapacitate the employee from earning the wages he was receiving at the time of his injury. When determining the degree of permanent disability sustained by an injured employee, the Commission must consider medical evidence demonstrating the degree to which his anatomical disabilities impair his earning capacity. We must also consider the worker's age, education, work experience, and any other matter which may reasonably affect his future earning capacity. Other matters the Commission may consider include motivation to return to work, post-injury income, credibility, and demeanor. 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). See also,Curry v. Franklin Electric, 32 Ark. App. 168, 798 S.W.2d 130 (1990). When it becomes evident that the employee's underlying condition has become stable, and that no further treatment will improve that condition, the disability is deemed to be permanent. If the employee is totally incapacitated from earning a livelihood at that time, he is entitled to compensation for permanent and total disability. Minor v. Poinsett Lumber Manufacturing Co., 235 Ark. 195, 357 S.W.2d 504 (1962).
The claimant is relatively young, age 49. He obtained a GED certificate in approximately 1986. He has a wide variety of work experience. His work history includes carpentry, farm labor, convenience store management, and employment with the respondents. Claimant was trained as a diesel mechanic in the U.S. Army. Nevertheless, the record indicates that the claimant lacks motivation to return to work. He was sent eleven job leads by his rehabilitation counselor, each paying from $5.00 to $6.00 per hour (i.e. paying more than he was earning with the respondents). He followed up on only two of these leads, and he has not otherwise attempted to return to the work place. The claimant is able to perform work in the light category. However, according to the claimant's Functional Capacity Evaluation, the evidence indicates that the claimant wants to raise cattle or chickens rather than return to the work force and is content to live a sedentary life. The Claimant's lack of motivation to return to work impedes our assessment of any wage loss disability to which he may be entitled. See, Glass v. Edens, 233 Ark. 786, 346 S.W.2d 685 (1961).
Further, the record indicates that the claimant has impeded his recovery process to return to work. He was given home exercises to do, which he did not consistently perform. He is attempting to obtain Social Security Disability. The claimant testified that his volatile temper interferes with his attempts to return to work. The evidence indicates this problem predates the claimant's compensable injury.
However, the claimant vividly testified to the extent of his physical limitations. After assessing permanent impairment, Dr. Moore opined that "it would appear that the prospects of returning to working activities are rather grim." After considering the claimant's age, education, work experience, his minimal attempts to look for work, the nature and extent of his physical injury, and all other evidence properly in the record, we find that the claimant has sustained a loss of wage earning capacity in the amount of 20% to the body as a whole in excess of the 10% anatomical impairment established by the medical evidence.
Accordingly, based on our de novo review of the entire record, and for the reasons discussed herein, we find that the claimant earned wages sufficient to entitle him to weekly compensation benefits of $203.00 for temporary total disability and $154.00 for permanent partial disability. In addition, we find that the claimant is entitled to loss of wage earning capacity in the amount of 20% to the body as a whole. Therefore, we affirm the decision of the administrative law judge, as modified.
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.
CONCURRING AND DISSENTING OPINION
[22] I respectfully dissent from the finding in the principal opinion concerning claimant's average weekly wage.Further, while I concur with the finding that claimant is entitled to an award of wage loss disability benefits, I would affirm the Administrative Law Judge's finding that claimant has sustained a 70% loss to his wage earning capacity. Claimant has presented vivid and detailed testimony concerning the extent of his physical limitations, and Dr. Moore has opined that "it would appear that the prospects of returning to working activities are rather grim" (office note of April 15, 1996). Under these circumstances, I believe that a 70% wage loss rating is justifiable.
As set out above, I concur in part and respectfully dissent in part from the majority opinion.
CONCURRING AND DISSENTING OPINION
[27] I respectfully concur with the majority's opinion finding that the claimant's average weekly wage entitled him to the maximum weekly compensation benefit of $203.00 for temporary total disability and $154.00 for permanent partial disability. However, I respectfully dissent from the majority's finding that the claimant sustained a 20% wage loss in addition to his anatomical impairment of 10% which was accepted and paid by the respondent. Based upon my de novo review of the record. I find that the claimant has failed to prove by a preponderance of the evidence that he sustained any wage loss.The claimant sustained an injury to that portion of his body which is not scheduled under the Act. Therefore, the claimant's entitlement to permanent disability benefits is controlled by Ark. Code Ann. § 11-9-522. Permanent disability compensation is paid where the permanent effects of a work-related injury incapacitates the worker from earning the wages which he was receiving at the time of the injury. When making a determination of the degree of permanent disability sustained by an injured worker with an unscheduled injury, the Commission must consider medical evidence demonstrating the degree to which the worker's anatomical disabilities impair his earning capacity, as well as other factors such as the worker's age, education, work experience, and other matters which may reasonably be expected to affect the workers' future earning capacity. Such other matters are motivation, post-injury income, credibility, and demeanor. 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). When it becomes evident that the worker's underlying condition has become stable and that no further treatment will improve the condition, the disability is deemed to be permanent. If the employee is totally incapacitated from earning a livelihood at that time, he is entitled to compensation for permanent and total disability. Minor v. Poinsett Lumber Manufacturing Co., 235 Ark. 195, 357 S.W.2d 504 (1962).
In considering the factors which may affect an employee's future earning capacity, the Commission may consider the claimant's motivation to return to work, since a lack of interest or negative attitude impedes the Commission's assessment of the claimant's loss of earning capacity. City Fayetteville v. Guess, 10 Ark. App. 313, 663 S.W.2d 946 (1984); Oller v. Champion Parts Rebuilders, 5 Ark. App. 307, 635 S.W.2d 276 1982. In addition, a workers' failure to participate in rehabilitation does not bar his claim, but the failure may impede a full assessment of his wage earning loss by the Commission. Nicholas v. Hempstead County Memorial Hospital, 9 Ark. App. 261, 658 S.W.2d 408 (1983).
In my opinion, claimant has failed to prove by a preponderance of the evidence that he sustained any wage loss. The evidence shows that the claimant lacks motivation to return to work. The claimant was sent on eleven job leads paying from $5.00 an hour to $6.00 an hour by Mr. Hugen. However, the claimant only followed up on two of these leads. The claimant has made no effort to return to the work place. He is able to work at least in the light work category, but he has failed to follow up on these leads. There was evidence presented that the claimant wants to raise cattle or chickens, not return to the work force. The evidence also indicates that the claimant has done little to help himself in the recovery process. The claimant was given home exercises to do, but he did not make any effort to perform these exercises on a daily basis. Moreover, the claimant is attempting to obtain Social Security Disability. The claimant testified that his temper interferes with his attempts to return to work. However, there is strong evidence that this problem predates the claimant's injury. The claimant received an undesirable discharge from the military for fighting. To sum it up, the claimant seems perfectly happy leading a sedentary life.
Consequently, I find that the claimant has failed to prove by a preponderance of the evidence that he sustained any wage loss. Therefore, I respectfully dissent from the majority opinion finding that the claimant sustained a 20% wage loss. However, I concur in the majority's finding that the claimant earned wages sufficient to entitle him to weekly compensation benefits of $203.00 for temporary total disability and $154.00 for permanent partial disability.
MIKE WILSON, Commissioner