Opinion
CLAIM NO. E200132
OPINION FILED JUNE 28, 1995
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE TERENCE C. JENSEN, Attorney at Law, Benton, Arkansas.
Respondents No. 1 represented by the HONORABLE J. MICHAEL PICKENS, Attorney at Law, Little Rock, Arkansas.
Respondent No. 2 represented by the HONORABLE TERRY PENCE, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Reversed.
OPINION AND ORDER
The Second Injury Fund appeals an opinion and order filed by the administrative law judge on November 17, 1994. In that opinion and order, the administrative law judge found that the claimant is permanently and totally disabled as a result of her compensable injury, and the administrative law judge found that the Second Injury Fund has liability. After conducting a de novo review of the entire record, we find that the claimant failed to prove by a preponderance of the evidence that she sustained any impairment to her earning capacity in excess of the anatomical impairment ratings for her scheduled injuries. Consequently, we find that the Second Injury Fund does not have liability in this claim.
The claimant contends that she is permanently and totally disabled as a result of admittedly compensable bilateral carpal tunnel syndrome. In this regard, an award for a scheduled injury such as this is limited to the benefits provided in the statute for that scheduled injury, absent a finding of permanent and total disability. See, e.g., Anchor Construction Co. v. Rice, 252 Ark. 460, 479 S.W.2d 573 (1972); Springdale Farms v. McGarrah, 260 Ark. 483, 541 S.W.2d 928 (1976); Moyers Brothers v. Poe, 249 Ark. 984, 462 S.W.2d 862 (1971); Taylor v. Pfeiffer Plumbing Heating, 8 Ark. App. 144, 648 S.W.2d 526 (1983); Rash v. Goodyear Tire and Rubber Co., 18 Ark. App. 248, 715 S.W.2d 449 (1986); Haygood v. Belcher, 5 Ark. App. 127, 633 S.W.2d 391 (1982). In addition, an injury scheduled under Ark. Code Ann. § 11-9-521 is payable without regard to subsequent earning capacity. Consequently, an award for a scheduled injury cannot be increased by considering wage loss factors, unless the claimant proves that she is permanently and totally disabled. See, e.g., Rice, supra; McGarrah, supra; Taylor, supra; Rash, supra; Haygood, supra.
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 has been impaired by the compensable injury. In addition to medical evidence demonstrating the degree to which anatomical impairments caused by the compensable injury affect the claimant's 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. Ark. Code Ann. § 11-9-522 (1987). A preexisting disease or infirmity does not disqualify a claim if the employment aggravated, accelerated, or combined with the disease or infirmity to produce the disability for which compensation is sought. Nashville Livestock Commission v. Cox, 302 Ark. 69, 787 S.W.2d 664 (1990); Minor v. Poinsett Lumber Mfg. Co., 235 Ark. 195, 357 S.W.2d 504 (1962);Conway Convalescent Center v. Murphree, 266 Ark. 985, 588 S.W.2d 462 (Ark.App. 1979). However, employers are only liable for the results of compensable injuries. Therefore, injured employees are entitled to permanent disability compensation only to the extent that their incapacity to earn wages is causally related to the compensable injury.Weaver v. Tyson Foods, 31 Ark. App. 147, 790 S.W.2d 442 (1990); See also, Jerry Rice v. Georgia-Pacific Corp., Full Workers' Compensation Commission, Nov. 6, 1992 (Claim No. D707050); Charles Mulanax v. Ferguson Farms, Full Workers' Compensation Commission, Mar. 2, 1992 (Claim No. D408955);Elder Smith v. Ray Construction, Full Workers' Compensation Commission, Dec. 11, 1991 (Claim No. D804690); FrancisPowell v. Tiffany Stand Furniture, Inc., Full Workers' Compensation Commission, Jul. 1, 1991 (Claim No. D710675).
In the present claim, the claimant was 54 years old at the time of the hearing. She completed the 10th grade, and she obtained her G.E.D. in 1983 or 1984. Prior to working for the respondent employer, she worked as a nurse's aide at a convalescent center and at the Benton Services Center.
The claimant began working for the respondent employer on December 3, 1991, and, she sustained admittedly bilateral carpal tunnel syndrome injuries on January 6, 1992. She was initially treated by Dr. Kirk Watson, a general practitioner, for complaints of pain, numbness and tingling in her hands, and pain radiating up to her elbow. Dr. Watson referred the claimant to Dr. John Yocum, an orthopedic surgeon, who surgically released the left carpal tunnel on February 5, 1992. However, the claimant continued to complain of pain and numbness in both extremities. Consequently, Dr. Yocum performed a second surgery on the left wrist, and he also surgically released the right carpal tunnel. On November 17, 1992, Dr. Yocum released her from his care with an impairment rating of 5% to each extremity. His reports indicate that she demonstrated good strength, sensation, and a full range of motion. However, he also notes that the claimant continued to complain of pain and numbness. He also concluded that she would continue to experience some symptoms due to the severe pressure on her median nerve. The claimant was not satisfied with Dr. Yocum's conclusion that she would continue to experience symptoms, so Dr. Yocum referred her to Dr. Michael Moore, an orthopedic surgeon. Dr. Moore was not able to suggest any additional modes of treatment, and he released her on January 18, 1993, with an impairment rating of 10% to the right extremity and 7% to the left extremity.
However, the evidence shows that the claimant suffered from a number of severely disabling and incapacitating conditions prior to starting to work for the respondent employer. In fact, the Social Security Administration had previously determined that she was permanently and totally disabled, and she had received Social Security Disability benefits since June of 1991. These disabling conditions included severe chronic cervical and lumbar sprains, knee impairment, chronic obstructive pulmonary disease, a seizure or anxiety disorder which produced frequent episodes of syncope, and cardiovascular problems.
The claimant's family physician, Dr. Marvin Kirk, began treating the claimant in the early 1980's, and his records indicate that he saw her in January of 1981 for complaints of cervical pain, dizziness, and headaches which began when she was hit on the head by a tree limb. Later that year, the claimant also began to complain of numbness in her left leg. Dr. Kirk's records show that he has treated her similar neck and low back complaints since that time, and he has diagnosed strains which exacerbated preexisting arthritis. Significantly, the claimant has periodically complained of arm numbness similar to the symptoms of the condition involved in the current claim since 1983.
In 1985, Dr. Kirk diagnosed chronic obstructive pulmonary disease. Due to the severity of this condition, Dr. Kirk has prescribed oxygen, and he has recommended that she wear an oxygen mask every night while she sleeps. In addition, she is to use the oxygen as needed during the day, and, when her deposition was taken in the present matter, she was wearing the oxygen mask. Dr. Kirk opined that the claimant could not walk thirty feet without stopping to rest and to get more air, and he opined that it would take her one hour to walk one block. He has opined that this condition is progressive and will never get better.
During the course of her employment with the Benton Services Center in 1986, the claimant was struck in the back by one of the clients, causing her to fall and strike her head on the floor, resulting in problems with her neck and low and intermittent seizures or syncope episodes. She has suffered from these seizures or syncope episodes since that time. Dr. Kirk assigned a 7.5% impairment rating for the injuries to the claimant's neck and low back which were sustained as a result of this incident. In addition, Dr. Kirk has restricted her from lifting, pulling, or pushing of anything over 20 pounds.
In addition to these problems, the claimant was diagnosed with arteriosclerosis in 1988, and Dr. Kirk said this condition limits the claimant's physical capabilities. She has also been diagnosed with a moderately severe chronic anxiety disorder, which Dr. Kirk has treated with tranquilizers and anti-depressant medication. Also, she sustained a knee injury prior to her employment with the respondent employer, and arthroscopic surgery was performed by Dr. James Mulhollan, an orthopedic surgeon.
Dr. Kirk testified that he was not aware that the claimant had returned to work after her injury at the Benton Services Center. In fact, in a letter dated January 22, 1991, prior to her employment by the respondent employer, Dr. Kirk made the following comments:
I have been treating Mrs. Timms for the past three years concerning an injury that she received while working at the Benton Services Center. She was struck in the back of the head and neck and knocked to her knees. Shortly after this episode, she was driving her car and she passed out and hit a tree. She has been worked up for seizures by myself and two neurologists. She has had EEG's, some would be positive, some negative, for a seizure disorder. She passes out quite readily. She has been advised not to drive her car even though I feel like the passing out episodes are conversion reactions. She does lose consciousness. Of significance, is her pulmonary status. She has severe restrictive lung disease and her 1 second expiratory flow is less than 1 liter per minute. . . . She becomes very short of breath when walking a short distance.
In summary, her major disability is her pulmonary status. Her secondary disability is a conversion reaction, which would put her in the category of not being a good candidate for holding any type of full time employment because she passes out quite frequently. She has seen a psychiatrist for this but she has not received any positive benefit from the counseling. . . .
Moreover, Dr. Kirk testified that the claimant's neck and back problems, her pulmonary condition, and, especially the syncope episodes are sufficient in themselves to totally incapacitate the claimant from any type of employment. Furthermore, Dr. Kirk testified that the nature and frequency of the seizures or syncope episodes experienced by the claimant created a safety hazard for any employment on an assembly line such as her employment with the respondent employer.
Consequently, Dr. Kirk's records and his testimony show that the conditions which preexisted the claimant's employment with the respondent employer totally incapacitated her from earning before she began working for the respondent employer. The evidence does show that she worked for the respondent employer without missing any time for 23 days, and Mr. John Gray, human resources director for the respondent employer, testified that he was not aware of the claimant having any problems getting her job done. However, the claimant did not tell the respondent employer about any of these conditions when she applied for the job, and, after she was hired, she only revealed that she had "asthma" and neck problems. Furthermore, Mr. Gray testified that he would not have hired the claimant if he had been aware of the extent of her disabilities, especially the seizures or syncope episodes and the 20 pound lifting restriction since the job required lifting up to 90 pounds at times.
Thus, although the evidence shows that the claimant is totally incapacitated from earning, we find that the preponderance of the evidence establishes that this total incapacity is caused by the conditions which preexisted her employment. We note that this conclusion is supported by the results of a functional capacity assessment performed on April 22, 1992. Although this report indicates that it is not a valid indicator of the claimant's maximum safe capabilities due to the claimant's self limiting behavior, the report also indicates that her use of her hands were not a limiting factor whatsoever. Instead, this report indicates that the major limiting factors were all related to the conditions which preexisted her employment with the respondent employer.
Therefore, we find that the claimant's compensable injury did not aggravate, accelerate, or combine with the preexisting conditions. Furthermore, we find that the preponderance of the evidence fails to show that the claimant is totally incapacitated from earning as a result of this compensable injury. Therefore, we find that she failed to prove by a preponderance of the evidence that she is entitled to permanent disability compensation in excess of the 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 failed to prove by a preponderance of the evidence that she is entitled to permanent disability compensation in excess of that provided for in Ark. Code Ann. § 11-9-521 (1987). As a result of this finding, we also find that the Second Injury Fund does not have any liability in this claim. Therefore, we find that the administrative law judge's decision must be, and hereby is, reversed.
IT IS SO ORDERED.
Commissioner Humphrey dissents.