Opinion
CLAIM NO. E205029
OPINION FILED SEPTEMBER 10, 1997
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE DENVER THORNTON, Attorney at Law, El Dorado, Arkansas.
Respondents represented by the HONORABLE NORWOOD PHILLIPS, Attorney at Law, El Dorado, Arkansas.
OPINION AND ORDER
This matter comes before the Full Commission on remand from the Arkansas Court of Appeals to consider the constitutional issue raised by the claimant which we did not address in our prior opinion and order filed on April 12, 1995. The claimant contends that the Arkansas scheduled injury statute denies her equal protection under the law because the Arkansas Workers' Compensation Law specifically permits a claim for permanent disability benefits for wage loss for unscheduled injuries but does not provide for a claim for permanent disability benefits for wage loss for scheduled injuries (unless the claimant is permanently and totally disabled). In our prior opinion and order filed in this case, we found that the claimant failed to prove that she is permanently and totally disabled.
As a threshold issue, the claimant must have standing to raise her constitutional challenge. In order to have standing to challenge a statutory system which permits claims for wage loss for unscheduled injuries but not for scheduled injuries, the claimant must prove that she has sustained some degree of permanent impairment to her earning capacity as a result of her scheduled injury. See, Green v. Smith Scott Logging, 54 Ark. App. 53, 57, ___ S.W.2d ___, ___ (1996) (Robbins, J., concurring).
Therefore, the Commission must consider the degree to which the claimant's future wage earning capacity is impaired. In addition to medical evidence demonstrating the degree to which the claimant's anatomical disabilities impair her earning capacity, the Commission must also consider other factors, such as the claimant's age, education, work experience, and any other matters which may affect the claimant's future earning capacity, including the degree of pain experienced by the claimant. Ark. Code Ann. § 11-9-522 (1987); Tiller v. Sears, 27 Ark. App. 159, 767 S.W.2d 544 (1989).
The claimant was 71 years old at the time of her hearing, and she has a general education degree (GED). She became employed by the Medical Center of South Arkansas in 1964 as a surgical instrument technician, and has continued to work for the respondents since that time. Her duties have included cleaning, sterilizing, repairing and otherwise preparing surgical instruments, and she has prepared patients for surgery on occasion. The claimant's prior work experience includes working as a welder in a shipyard, working as a label applier for a paint and varnish company, and working as a cigarette stamper for a wholesale company.
With regard to her injury and medical treatment, the claimant sustained an admittedly compensable injury to her left leg on February 17, 1992, as a result of a fall from a broken chair. The claimant testified that her primary problems are in her left lower leg. However, after extensive diagnostic testing, the claimant's treating orthopedic specialists appear to agree that the claimant's lower leg complaints are referable to left knee abnormalities. The physicians agree that the claimant is a candidate for a total left knee replacement, but the claimant had declined surgery as of the date of her deposition testimony.
The claimant returned to work for the respondent on April 27, 1992. The claimant testified that her job after returning was folding linens (which could be performed while seated). The claimant testified that she worked full time prior to the injury, but has only worked 20 hours per week for the respondent since returning to work. The claimant testified that she also works one hour per week for a doctor cleaning his office. The claimant testified that she had not asked to work more than 20 hours per week for the respondent since returning to work. In addition, the claimant testified that she began drawing social security retirement benefits prior to her work-related injury.
With regard to her continuing problems, the claimant testified that she experiences pain in her lower leg with swelling. The claimant testified that her leg shakes when she stands and that she uses a brace provided by one of her physicians to stabilize her leg.
We note that no physician has assigned Ms. Washington an anatomical impairment rating to date for her knee injury. However, we also note that no physician has any additional treatment to offer the claimant except knee surgery, and the medical record indicates that the claimant's knee is as far restored as the permanent nature of her injury will permit unless she elects to undergo replacement surgery at some later date.
After considering the claimant's age, education, work experience, the nature and degree of her physical injury, and all other relevant factors, we find that the claimant failed to prove by a preponderance of the evidence that she sustained any permanent impairment to her earning capacity as a result of her 1992 compensable injury.
In reaching our decision, we place significant weight on the sedentary nature of the claimant's employment with the respondent. We note that the claimant has suggested that she has sustained a 50% wage loss because she worked 40 hours per week before her injury, but only 20 hours per week after her injury. However, in assessing this assertion we note that the claimant testified that she never sought or tried to work more than 20 hours per week for the respondent after she returned to work. We also note that the claimant began drawing age-related Social Security retirement benefits prior to her compensable injury, and we note that the claimant has engaged in additional work since her injury cleaning offices for one of her treating physicians. Finally, we note that no physician has assigned the claimant any permanent anatomical impairment as a result of her compensable injury.
In short, the greater weight of the evidence indicates that the claimant has regulated her return to work in a manner so as to supplement her retirement income to the degree that she deems appropriate. However, for the reasons discussed herein, we find that the claimant failed to prove by a preponderance of the evidence that she sustained any permanent decrease in her earning capacity as a result of her compensable injury. Consequently, we find that the claimant failed to show that she has standing to challenge the constitutionality of Ark. Code Ann. § 11-9-521 (1987).
We, therefore, again find that the claimant failed to prove by a preponderance of the evidence that she is entitled to benefits for permanent disability in excess of the benefits proved for under Ark. Code Ann. § 11-9-521 (1987).
IT IS SO ORDERED.
Commissioner Humphrey concurs. Commissioner Wilson concurs.