Opinion
CLAIM NO. E201879
OPINION FILED JULY 30, 1996
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by DENVER THORNTON, Attorney at Law, El Dorado, Arkansas.
Respondents represented by MICHAEL EMERSON, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed.
OPINION AND ORDER
An Administrative Law Judge entered an opinion and order in the above-captioned case on November 9, 1995, finding that claimant was permanently and totally disabled as a result of a compensable injury suffered on December 3, 1991. Respondents now appeal from that opinion and order, contending that claimant remains capable of gainful employment. Following our de novo review of the entire record, we find that claimant has proven, by a preponderance of the credible evidence, that he is permanently and totally disabled according to the "odd-lot" doctrine. Accordingly, the decision of the Administrative Law Judge is affirmed.
After conservative care failed to alleviate the difficulties associated with his compensable injury, claimant underwent a pair of anterior cervical discectomies at C3-4 and C5-6 on March 16, 1992 and July 20, 1992, respectively. Both operations were performed by Dr. Wilbur M. Giles. Claimant experienced some improvement of his pain symptoms following these procedures, but significant numbness in his hands still persisted by October 26, 1992, which Dr. Giles opined was permanent:
This man has had cord compression from the onset and I am concerned that the numbness may well be permanent since it has basically not resolved . . . Because of the fact that he has to use his hands with either hammer or nails, it is highly unlikely he will be able to return to his previous working capacity. There is a probability that most of this will be permanent in nature.
Dr. Giles went on to assess "an overall permanent partial disability to the body as a whole of 25 percent as a result of this injury. That considers the two levels of his discogenic surgery including his level of spinal stenosis at C4-5 and for five percent for the numbness in each extremity." During his deposition, Dr. Giles testified that, despite his use of the term "permanent partial disability," he actually intended this rating to represent an "anatomical impairment given to him to the body as a whole based on, at that point in time, the two surgeries that he had, mild limitation of motion, and the sensory deprivation."
Unfortunately, claimant's condition worsened over time, and during a follow-up visit on March 2, 1995, Dr. Giles noted that:
Mr. Robbins was seen back in the office today for follow-up as concerns his complaints of progressive paresthesias (sic) and increasing neck and shoulder discomfort from his original injury which occurred in 1992 from acute cord compression. . . His MRI scan reveals mild cord compression at C2-3 on the right with some spur formation very mild at C3-4 from spur formation, mild compression at C4-5 secondary to bulge and spur, mild stenosis at 5-6 and 6-7. He does show a focal myelomalacia within the cord consistent with significant injury at the 3-4 level from his acute disc herniation that occurred in 1992.
Based on claimant's unresolved and worsened symptoms, including continued numbness in the hands, Dr. Giles increased his initial 25% permanent impairment rating:
Because of the myelomalacia in the cord which is now present, I think his overall permanent partial disability would be increased to approximately 50% permanent partial disability on a long term basis. He has advanced his joint disease and there has been a progression of his stenosis at multiple levels since 1992 as a result of this injury.
In light of Dr. Giles' clarification of the intent behind his initial 25% rating, we specifically find that the increase to 50% was also intended to reflect an anatomical impairment rather than an actual wage loss disability.
During his deposition, Dr. Giles testified extensively concerning the nature of claimant's condition and the relation between his congenital spinal condition and work-related injury:
Q. The stenosis that you mentioned, I have seen your reports have described it in places as congenital and in other places as degenerative.
A. Well, he had a combination of both. He had a narrow spinal canal, which is certainly congenital. But he also had degenerative arthritis at the 3-4 and 4-5 levels to a mild degree, and 5-6 primarily back in '92. Over the period of time that I have seen him since this first started, his degenerative disease has ben accelerated as a result of his injury.
Q. Can you tell us how that happened?
A. Trauma from the incident itself as far as a rupturing of the disc increases that and increases the acceleration of degenerative changes. And certainly the surgical procedures also accelerate it to a certain extent, to some degree in his joints.
Q. He did have degenerative disc disease before he ever came to see you?
A. Yes, he did. But the most significant thing that is now present and is very clear on his MRI that was performed when I last saw him here in '95 — he had an MRI scan performed on him on March the 2nd, '95. This scan shows significant changes over his previous studies almost a year to two years before that. He has now developed and shows very clear cord myelomalacia or softening in his spinal cord at the 3-4 level where he has his initial disc rupture. So what has actually happened with him is that his cord has slowly but significantly continued to degenerate as a result of his initial injury.
Dr. Giles went on to explain that the spinal deterioration attributable to claimant's work-related injury placed him in a "highly vulnerable" position with regard to the potential for further injury in an employment setting:
I think this man is highly vulnerable. He has evidence on his MRI scan that he has significant cord compression at multi-levels. . . He's tolerant of this at this time. It's stable as far what he clinically feels. I think this man is vulnerable. Should he be significantly rear-ended in a vehicle or have a significant traumatic event to his neck that caused a severe flexion or hypertension to his neck, I think he will significantly pinch his spinal cord because it's already compromised. . . . I think there are possibly some things of a minor, minor nature employment-wise that this man might could do, but I think there's some vulnerability to him with whoever he might be employed by with what his neck findings are.
Dr. Giles did acknowledge a few positions that claimant "could conceivably do," including gate guard, apartment manager, greeter, and information clerk, but maintained his opinion that claimant's "neck disease . . . makes him a vulnerable problem for someone." Dr. Giles also made it clear that even purely sedentary employment would place claimant at risk and that claimant would face the risk of further injury regardless of whether he returned to work at all.
Claimant's own testimony, which we specifically find to be credible, established that he is fifty-seven years old and completed the tenth grade. He received no formal vocational training and before his injury earned a living by performing carpentry. Claimant has not worked since his injury in 1991, and Dr. Giles has expressly opined that additional carpentry work is not within the boundaries imposed by claimant's limitations.
Claimant further testified that, while he is no longer able to perform carpentry and is afraid of returning to work in light of Dr. Giles warnings, he does try to stay active by walking around his nine acres "and do things, you know; if nothing else, just walk around the place or up and down the road and different things of that nature." Because of the sensory loss in his hands, claimant is unable to grasp objects without looking at them, and must maintain visual contact with objects he holds. He also suffers from significant stiffness and some pain in his neck, though not in his hands where he is without sensation. Claimant takes prescribed pain medication on a daily basis and, in light of Dr. Giles' admonitions, tries "to be real careful and do everything at a slow pace."
Concerning his capacity to return to work, claimant testified that he had not applied for a job since his injury, but had a willingness to work if he could do so without jeopardizing himself or others in light of his condition, and if he could find a position that would provide compensation adequate to subsist on. Claimant also stated that he had co-operated with rehabilitation counselors employed by respondent, but that they had not found him a job "to his knowledge." In addition, claimant has fears of additional injury "every day that I do anything, walking or whatever." Because claimant's injury occurred prior to July 1, 1993, Act 796 of 1993 is inapplicable to this claim.
In Lewis v. Camelot Hotels, 35 Ark. App. 212, 816 S.W.2d 632 (1991), the Arkansas Court of Appeals elaborated on the "odd-lot" doctrine as accepted by this jurisdiction:
The "odd-lot" doctrine refers to employees who are able to work only a small amount. The fact that they can work some does not preclude them from being considered totally disabled if their overall job prospects are negligible. M.M. Cohn Co. v. Haile, 267 Ark. 734, 589 S.W.2d 600 (1979). In reference to the odd-lot doctrine, we have recognized that "total disability" does not require a finding that the employee is utterly helpless, and an employee who is injured to the extent that he can perform services that are so limited in quality, dependability, or quantity that a reasonably stable market for them does not exist may be classified as totally disabled. Hyman v. Farmland Feed Mill, 24 Ark. App. 63, 748 S.W.2d 151 (1988).
Also,
If the evidence of degree of obvious physical impairment, coupled with other facts such as the claimant's mental capacity, education, training, or age, places claimant prima facie in the odd-lot category, the burden should be on the employer to show that some kind of suitable work is regularly and continuously available to the claimant.
Johnson v. Research-Cottrell, 15 Ark. App. 48, 689 S.W.2d 8 (1985) (citing A. Larson, Workmens' Compensation Law § 57.61 (1983)).
Finally, in making a disability determination, this Commission is entitled to take into account, in addition to the degree of permanent physical impairment, a claimant's "age, education, work experience, and other matters reasonably expected to affect his future earning capacity." Ark. Code Ann. § 11-9-522 (b) (Repl. 1996).
While the record does not indicate that claimant is "utterly helpless," we find it equally clear that claimant's overall job prospects are negligible. In reaching this conclusion, we have taken into account several factors. First, claimant's loss of sensory function in his hands and corresponding difficulty in grasping objects makes working with tools or performing hand-intensive tasks a difficult, if not dangerous, proposition. Unfortunately, claimant's prior work experience lies almost exclusively within this category.
Second, we note that claimant is 57 years of age without a high school diploma or specific vocational training. Even his carpentry skills are self-taught and Dr. Giles has opined that he can no longer perform such work. Also, claimant is restricted in terms of how quickly he can move and is vulnerable to significant consequences if he is merely jarred or jolted in a particular fashion. We believe this degree of susceptibility to injury would greatly impede claimant's chances of serving as a dependable employee. Finally, we are mindful of the fact that Dr. Giles considered claimant's degree of anatomical impairment to be as much as 50%.
The foregoing evidence persuades us to specifically find that claimant is prima facie within the odd-lot category, in that his job prospects are not only negligible, but that he now can only perform services that are "so limited in quality, dependability, or quantity that a reasonably stable market for them does exist."
In turn, we are not persuaded that respondents have met their burden of showing that some kind or work is "regularly and continuously available" to claimant. The vocational rehabilitation analysis provided by Ms. Gay Signoff, a vocational specialist with Cascade Rehabilitation Counseling, does no more than provide a list of job titles that claimant might be able to perform, and even acknowledges that some of the titles may require college-level courses for an entry-level position. We find this analysis to be of minimal evidentiary value owing to its failure to address the question of whether its prospective job titles are "regularly or continuously" available in light of claimant's specific circumstances.
Based on our de novo review of the entire record, and the reasons discussed hereinabove, we specifically find that claimant is permanently and totally disabled within the meaning of the odd-lot doctrine. The Administrative Law Judge's decision should 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.
DISSENTING OPINION
I respectfully dissent from the majority's opinion finding that the claimant was permanently and totally disabled. The claimant sustained an admittedly compensable injury to his neck on December 3, 1991, when he tripped over a tree root, catching himself on his hands. The claimant had an anterior cervical discectomy at the C3-4 level on March 16, 1992, and at the C5-6 level on July 21, 1992. The respondents paid all temporary total disability and medical benefits and accepted and paid a 20% whole body physical impairment rating. The claimant reached the end of his healing period in October of 1992. The claimant continues to suffer from numbness in his left arm from the elbow down, and in his right arm from the wrist down. The claimant contends that he is permanently and totally disabled. The respondents controvert any permanent partial disability in excess of 20% to the body as a whole and claim a credit of $1,623.84 which was an over payment of the 20% impairment rating. Based upon my review of the evidence, the claimant has failed to prove by a preponderance of the evidence that he is permanently and totally disabled. However, the claimant has proven by a preponderance of the evidence that he has a permanent partial disability in the amount of 50% to the body as a whole and a 30% wage loss.
Dr. Wilbur Giles, the claimant's treating physician, assessed the claimant with a 25% permanent partial disability rating on October 26, 1992. On March 2, 1995, he increased the claimant's disability rating to 50% to the body as a whole. The respondents have accepted a 20% rating and have paid the claimant accordingly. However, based upon Dr. Giles' evaluation that the claimant suffers from myelomalacia in the cord, has advanced joint disease and a progression of stenosis at multiple levels, I find that the claimant has a 50% permanent partial disability.
I find that the evidence does not support a finding of permanent and total disability. 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 in 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).
An employee who is injured to the extend that he can perform services that are so limited in quality, dependability, or quantity that a reasonable stable market for them does not exist may be classified a totally disabled under the odd-lot doctrine.Lewis v. Camelot Hotel, 35 Ark. App. 212, 816 S.W.2d 632 (1991). (The odd-lot doctrine was eliminated by Act 796 of 1993, and therefore is no longer a viable alternative for finding a worker permanently and totally disabled. However, the claimant was injured in December of 1991, therefore the odd-lot doctrine is applicable.) The odd-lot doctrine recognizes the obvious severity of some injuries may combine with other factors to preclude the employee from obtaining employment in any reasonably stable market, although the worker is not altogether incapacitated from work. Id. The factors which may combine with the obvious severity of the employee's injury to place him in the odd-lot category are the employee's mental capacity, education, training and age. Id. If the claimant makes a prima facie showing that he falls in the odd-lot category, the respondents have the burden of proving that "some kind of suitable work is regularly and continuously available to the claimant." Id.
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 the present claim, the claimant failed to prove that he is entitled to application of the odd-lot doctrine. The evidence shows a lack of motivation on the part of the claimant to return to work. The claimant testified that he can operate a car or truck and other than a "stiffness" in his neck and a numbness of his arm and hands, he suffers from no abnormal physical limitations or impairments. The claimant is currently taking Lodine but he testified that it does not interfere with his physical abilities or cognitive function in any way. In addition, the claimant possess the knowledge and ability to operate construction equipment such as a backhoe, a front-end loader, and a bull dozer. The claimant also operates a John Deere Tractor and maintains a twenty-two (22) acre tract of land with fourteen (14) head of cattle. In fact, the claimant testified that his life was fairly "active." He testified that he has gone deer hunting twice and climbed a ladder into a deer stand. In addition, the claimant testified that he has no problems with his low back and that he has good grip strength in his hands. He also testified that he can bend and lift things and sit in a chair.
A Functional Capacities Assessment was completed on the claimant by Mr. Mark Erben, O.T.R./L., C.S.C.S., Director of Ergoplex Company. Mr. Erben's report indicates that the claimant has good standing postures, good stand up lift, push, pull and grip strength, good balance and good reciprocal leg motion and stair climability. In addition, the report states that the claimant has the functional ability to perform in the medium exertional level range and he possess the capability to return to work. The claimant was also evaluated by Ms. Gay Signoff, a vocational counselor and state manager of Cascade Rehabilitation Counseling, Inc. Ms. Signoff's comprehensive evaluation took into account both the physical limitations of the claimant's loss of sensation bilaterally of the hands, as well as the related safety concerns. The Transferable Skills Analysis Report compiled by Ms. Signoff identified a number of jobs that the claimant was able to do based upon the elimination of occupations that require sensory feeling of the hands to the extent that it would affect the safety of the claimant and those around him. This report identified jobs such as automotive service manager, code inspector, dispatcher, sales representative, and construction estimator. The claimant testified that he had experience with building codes and reading architectural blueprints. In addition, the claimant owned his own construction business for a number of years and has experience estimating construction costs. He also testified that there were jobs out there that he could and would do if he had to.
It is evident that the claimant does not desire to return to work. He is currently receiving Social Security Disability in the amount of $900.00 per month. He told Ms. Signoff that he required a minimum salary of $12.50 per hour. In addition, he testified that he "wouldn't even consider" working for less than $900.00 per month.
It is significant that the claimant's treating physician has not found the claimant to be permanently and totally disabled, but has assessed the claimant with a 50% permanent partial disability. In fact, Dr. Giles testified that he approved the findings of Ms. Signoff. When shown a list of occupations and questioned about them with respect to his knowledge that the claimant had a background in carpentry, Dr. Giles stated:
Dr. Giles: All of the things that you have here including the service manager, service advisor, code inspector, maintenance supervisor, dispatcher, customer complaint clerk, sales representatives, cabinet-making supervisors — all of these jobs — gate guard, apartment manager, greeter, information clerks, these are fairly sedentary-type activities. And certainly those type of occupations would be something that you could say this man could conceivably do. The only thing that I am saying is that his neck disease that he has makes a vulnerable problem for someone. These things, yes, he could do.
Mr. Emerson: Mr. Robbins' hobbies are: he has some head of cattle he looks after, he rides a tractor, putters around the house, and mows his acreage. He leads a fairly active life. It's just, I suppose, as possible that any number of those sort of activities of daily life could result in something.
Dr. Giles: Yes, they could.
The Commission can also consider the fact that the claimant has waived or not seriously pursued rehabilitation. Oller v. Champion Parts Rebuilders, 5 Ark. App. 307, 635 S.W.2d 276 (1982).
The evidence shows that the claimant has the ability and knowledge to return to the work force. However, he lacks the desired motivation to return to work because he is receiving $900.00 per month in Social Security Disability. He testified that he could not go to work for less than $900.00 per month and he told Ms. Signoff that he would not work for less than $12.50 per hour. By his own admission, he leads a "fairly active" life. He is able to deer hunt, mow grass, and tend to his farm. Accordingly, I find that the claimant has failed to prove by a preponderance of the evidence that he is permanently and totally disabled under the odd-lot doctrine. However, I do find that the claimant has proved by a preponderance of the evidence that he sustained a 30% wage loss in addition to the 50% permanent partial disability to the body as a whole. Therefore, I respectfully dissent from the majority opinion.
ALICE L. HOLCOMB, Commissioner