Opinion
CLAIM NO. F007845
OPINION FILED NOVEMBER 7, 2002
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by HONORABLE JOHN BISCOE BINGHAM, Attorney at Law, North Little Rock, Arkansas.
Respondents represented by HONORABLE CAROL L. WORLEY, Attorney at Law, Little Rock, Arkansas.
Decision of the Administrative Law Judge: Affirmed.
OPINION AND ORDER
The respondents appeal and the claimant cross-appeals an Administrative Law Judge's opinion filed February 22, 2002. The Administrative Law Judge found that the claimant was not entitled to an increase in his permanent impairment rating from 5% to 15% or 20%. The Administrative Law Judge also found that the claimant was entitled to wage-loss disability in the amount of 15%, which was in addition to the 5% anatomical impairment paid by the respondents. After reviewing the entire record de novo, the Full Commission affirms the opinion of the Administrative Law Judge.
I. HISTORY
Larry Dean Watters, age 52, was educated through the 12th grade. Mr. Watters testified that he worked as a stock person and then a tree trimmer after graduating from high school. The claimant worked for a water company for 11 years before becoming employed with Camaco in about 1990. The claimant worked for the respondent-employer as a welder, assembling car seats and welding the parts together.
The claimant testified that he sustained a previous back injury in about August 1998. The record indicates that the claimant was treated for pain in his low back, left hip, and left leg in November 1998. The following conclusion resulted from a lumbar spine MRI study taken November 11, 1998:
Centrally herniated nucleus pulposa L2-3. Some asymmetrical left posterolateral disc bulge is seen at L4-5. Facet arthropathy at L5-S1.
Dr. Anthony E. Russell reported on December 7, 1998:
Mr. Watters returns today to review his MRI scan. His study shows what appears to be a fairly significant stenosis and disc protrusion at L2-L3. In addition, there is a milder stenosis lower down. The upper level seems to cause a fairly marked compression of the thecal sac. The protrusion appears to have compressed the thecal sac into a crescent shape. Happily, Mr. Watters notes that his symptoms are improved. He says the steroids modulated his pain somewhat.
I let him know at this point our options are fairly limited, although we are still fairly early in the healing process. For that reason, a consideration could be made to continue physical therapy and repeat the steroids. I did let Mr. Watters know that if he has not resumed normal function by the time he returns in one month, then we would need to make a decision about surgery vs. returning to work.
The claimant testified that he was off work three to four months as a result of his 1998 back injury, and that he subsequently returned to work with no restrictions.
The claimant testified that he injured his back as the result of a specific incident occurring July 7, 2000:
Q. What happened?
A. We were taking inventory at that time. I had been reduced to Group Five. I got in too big a hurry and picked up a box of seat regulators, adjustments for the seats, and hurt my back. . . .
Q. And where was the pain and discomfort when you hurt your back?
A. It was in the lower back and hip area and extended down the leg to the foot.
The claimant testified that he was off work beginning July 10, 2000. Dr. Russell reported on August 15, 2000:
Mr. Watters returns today after a lengthy absence having noted the reonset of low back and lower extremity pain. When I saw this gentleman two years ago he had a similar major complaint and was subsequently found on MRI scan to have a lumbar canal stenosis at L2-3 with a second level of stenosis lower that was not felt to be significant. The patient has had no recent radiological studies to assess the etiology of his pain. We will plan to schedule MRI scan of the lumbar spine and recommendations will follow.
The claimant followed up with Dr. Russell on September 15, 2000:
Unfortunately, he has not had his MRI scan at this time. The MRI scan is absolutely necessary in determining the etiology of his continuing pain. He very likely will require surgical intervention once the scan has been obtain (sic) and reviewed. We will plan to see him back after the study to discuss the findings.
Dr. Jim J. Moore conducted a neurosurgical IME for the respondents on October 24, 2000. Dr. Moore wrote that "The patient's signs suggest some likely irritation at the L5 or the S1 nerve. Further investigation would be thought appropriate to include an MRI." Dr. Russell wrote on October 25, 2000:
Mr. Watters returned recently for followup evaluation continuing to complain of low back and lower extremity pain. This patient had been previously evaluated in 1998 for a similar complaint and was found to have lumbar stenosis at L2 and L3. At that time, it was elected to continue to treat symptomatically rather than consider surgical intervention. The patient returned recently on 08/15/00 and had a subsequent followup on 09/15/00 continuing to complain of these symptoms. Due to the presence of clearcut findings on the initial MRI scan, it is felt that the patient should undergo a followup study to determine if there has been any progression of the stenosis versus a new distinct injury. Further recommendations would be based on the findings of the MRI scan.
A lumbar MRI was finally taken on October 31, 2000, with the following impression:
Multilevel degenerative disc disease. Central canal narrowing is demonstrated at the L2-3 and L4-5 levels and to a lesser degree the L3-4 level. There is foraminal narrowing bilaterally at L4-5 and L5-S1 levels. There is diffuse bulge of the disc at the lower three levels. At the L2-3 level there is a small central disc herniation with associated annular tear. Annular tears are also demonstrated at the L3-4 and L5-S1 levels. At the L4-5 level I also suspect a small central disc herniation with minimal impingement on the left L5 root.
Dr. Moore reviewed the MRI and wrote on October 31, 2000:
I am impressed with the changes at the L4/5 level more than any other level and I believe that this would be consistent with the patient's clinical with the dorsiflexion weakness of the toe and the difficulty in eliciting the left achilles reflex which would certainly be consistent at the L5/S1 level as well.
The claimant testified that he returned to light work in February 2001.
Dr. Moore reported on March 13, 2001:
The patient does have evidence both on examination and on MRI study of nerve root compromise at the L4/5 and L5/S1 levels based on a diskal protrusion especially on the MRI at the L4/5 level. He does seem to be improving. He is anxious to get into some sort of a rating. At this particular point he has not been nor has it been recommended a surgical intervention at least by me and I believe that a rating could be provided him on the standpoint that he does appear to have passed into an eight month period from the injury on July 7. Based upon AMA guidelines 4th Edition, I feel that a disability rating of 10% permanent partial to the body as a whole on a one level as well as 10% permanent partial to the body as a whole as a second level would be appropriate to provide the patient at this point. . . .
I am going to give him a release to return to work full duty, at least on a trial basis. He is going to have some problem as far as excesses of bending, standing, stooping, straining and lifting and these should be factored into his working activities.
The claimant testified that he returned to full work duty, welding, on or about March 19, 2001. The claimant testified, "I tried it for a while and realized I wasn't going to be able to do it. . . . You have to bend over a fixture where you put your parts into it, and it began to hurt my back every time I'd bend over. The more I'd bend over, it would tighten up more and tighten up." The record indicates that the respondent-employer granted the claimant's request to be moved from the classification Group II-F into Group V, general production, effective March 22, 2001. The claimant testified that the work duties on Group V, general production, were physically easier to accomplish. In moving from II-F to Group V, the claimant's hourly pay rate was reduced from $11.67 to $11.36.
Dr. Moore wrote to the respondent-carrier on April 4, 2001:
In response to your letter of 3-26-01, I utilized AMA Guidelines, 4th Edition, table 72, page 110, the DRE impairment category III, this patient having a two level diskal problem at both L4/5 and L5/S1. I am not considering DDD in this opinion.
The claimant told Dr. Moore on May 1, 2001 "that he was unable to do the F1 activities of welding and voluntarily got into group 5 which is general production and seems to be tolerating this fairly well."
The respondents sought another independent medical evaluation, from Dr. A. Roy Tyrer, Jr., on June 27, 2001:
MRI of the lumbar spine done October 31, 2000 was reviewed with the Methodist Central Neuroradiology Department. There is slight posterior disc prominence at virtually all of the lumbar disc levels, slightly more prominent at the L-4 disc level where there is mild to moderate spinal canal stenosis, and minimal spinal canal stenosis at L-3-4, neither of which appear to be significantly compromising upon the spinal canal or cauda aquina. Moderate disc desiccation is present at L-4 and L-5 disc levels. No significant focal disc herniation is identified. All of these x-ray findings are considered to be of long-standing duration, and not specifically related to the patient's July 2000 back strain.
IMPRESSION: Chronic lumbar strain, superimposed on multilevel lumbar spondylosis with associated minor to moderate spinal canal stenosis, L-3 and L-4 disc levels, with excellent response to conservative treatment measures.
This man is doing very well. Clearly nothing additional is currently needed, certainly there is not present need for surgery. I see no reason why he cannot continue with his present regular work activities. I do not think significant aggravation of his pre-existing back condition has been incurred. I am not in agreement that the patient has a 20% permanent partial physical impairment considering the body as a whole, referable to his July back strain, as proposed by Dr. Jim Moore. I think a 5% permanent partial physical impairment considering the body as a whole is a much more appropriate consideration. This is in keeping with the AMA Guides to the Evaluation of Permanent Impairment (Fourth and Fifth Edition).
The parties stipulated that the respondents paid a 5% anatomical impairment rating.
Mr. Watters claimed entitlement to additional worker's compensation. The parties agreed to litigate the following issues:
(1) Whether the claimant was entitled to a 20% impairment and resulting increase in benefits from 5% to 20%;
(2) Whether the claimant was entitled to wage-loss disability; and
(3) Attorney's fee.
Dr. Moore wrote to the claimant's attorney on December 4, 2001:
In response to your recent letter 11-19-01 so far as a rating on this patient to perhaps avoid all confusion in the future I am going to apply Table 73 of AMA Guidelines, 4th Edition, DRE impairment catergory (sic) III which translates to 15% permanent partial to the body as a whole. I retract at this time the use of Table 75 of the 4th Edition impairment.
After a hearing before the Commission, the Administrative Law Judge found that the claimant was "not entitled to an increase in his whole body, permanent impairment rating from 5% to 15 or 20%." The Administrative Law Judge found that the claimant was "entitled to wage loss disability in the amount of 15%, which is in addition to the 5% permanent impairment rating paid by the respondents." The respondents appeal the Administrative Law Judge's award of wage-loss disability. The claimant cross-appeals the Administrative Law Judge's denial of additional benefits for anatomical impairment.
II. ADJUDICATION
A. Anatomical impairment
An injured worker must prove by a preponderance of the evidence that he is entitled to an award for a permanent physical impairment. Act 796 of 1993, as codified at Ark. Code Ann. § 11-9-102(4)(F)(ii)(a), provides that "Permanent benefits shall be awarded only upon a determination that the compensable injury was the major cause of the disability or impairment." "Major cause" means more than fifty percent (50%) of the cause, and a finding of major cause must be established according to the preponderance of the evidence. Ark. Code Ann. § 11-9-102(14). Ark. Code Ann. § 11-9-522(g) directed the Commission to adopt an impairment rating guide to be used in assessing anatomical impairment, which guide could not include complaints of pain as a basis for impairment. The Commission thus established Rule 34 as an impairment rating guide:
To accomplish this purpose, the Arkansas Workers' Compensation Commission hereby adopts Guides to the Evaluation of Permanent Impairment (4th ed. 1993) published by the American Medical Association exclusive of any sections which refer to pain and exclusive of straight leg raising tests or range of motion tests when making physical or anatomical impairment ratings to the spine.
To the extent that they allow the use of subjective criteria for establishing an impairment rating, the Guides must yield to the statutory definition of anatomical impairment as defined by the legislature. Rizzi v. Sam's Wholesale Club, Workers' Compensation Commission E515370 E112991 (April 1, 1999). Any determination of the existence or extent of physical impairment shall be supported by objective and measurable physical or mental findings. Ark. Code Ann. § 11-9-704(c)(1).
Finally, Ark. Code Ann. § 11-9-102(16) provides:
(A)(i) "Objective findings" are those findings which cannot come under the voluntary control of the patient.
(ii) When determining physical or anatomical impairment, neither a physician, any other medical provider, an administrative law judge, the workers' compensation commission, nor the courts may consider complaints of pain; for the purpose of making physical or anatomical impairment ratings to the spine, straight-leg-raising tests, or range-of-motion tests shall not be considered objective findings.
(B) Medical opinions addressing compensability and permanent impairment must be stated within a reasonable degree of medical certainty[.]
In the present matter, the Administrative Law Judge found that the claimant was not entitled to an increase in his permanent impairment rating from 5% to 15% or 20%. The Administrative Law Judge determined that the proper Table for assessing anatomical impairment was Table 72, lumbosacral spine impairment, rather than Table 73, cervicothoracic spine impairment. Dr. Moore had initially determined that the claimant suffered from radiculopathy (disease of the nerve roots) as a result of his compensable injury. A physicians' finding of "radiculopathy" would be included in DRE impairment category III, giving the claimant a 10% impairment; Dr. Moore originally determined that this impairment existed at two levels for a 20% total. The Administrative Law Judge determined that the preponderance of evidence did not show the claimant had suffered radiculopathy as a result of the injury. The Administrative Law Judge found:
Another neurosurgeon, Dr. Tyrer, stated that both the MRI's show long standing problems, not related to the patient's back (sic). Dr. Tyrer gave the claimant a 5% permanent impairment rating to the body as a whole. He does not state which Table he uses to assess the 5%, but the preponderance of the evidence after examining the Tables indicates that he used Table 72. I cannot determine any objective findings that would result in increasing claimant's DRE impairment category from II to III, or that there were any diagnostic studies that show that radiculopathy was present and caused by objective findings not present before the July, 2000 compensable injury. Therefore, the preponderance of the evidence reflects that the claimant is not entitled to an increase in his whole person impairment rating to anything above 5%.
Commissioner Turner would award the claimant a 20% anatomical impairment rating based on one of Dr. Moore's reports. The record indicates, however, that this rating was based at least in part on a finding of "radiculopathy," which the evidence shows was not a result of the claimant's compensable injury. Based on the provisions of Act 796 of 1993 and our de novo review of the entire record, the Full Commission affirms the Administrative Law Judge's award of a 5% impairment based on Table 72, DRE impairment category II. B. Wage loss
The wage-loss factor is defined as the extent to which a compensable injury has affected the claimant's ability to earn a livelihood. Glass v. Edens, 233 Ark. 786, 346 S.W.2d 685 (1961). The Commission is charged with determining disability based upon a consideration of medical evidence and other matters affecting wage loss, including age, education, and work experience. See, Ark. Code Ann. § 11-9-522(b)(1).
In the present matter, the Full Commission affirms the Administrative Law Judge's finding that the claimant was entitled to a wage-loss award of 15%. The claimant is age 52 and was educated only through the 12th grade. The claimant's work experience involves primarily manual labor. As a result of his compensable injury, the claimant has sustained anatomical impairment in the amount of 5%. Dr. Moore stated in March 2001 that the claimant would be permanently restricted from excessive bending, standing, stooping, straining, and lifting, activities which the claimant has been required to perform throughout his career.
In finding that the claimant was entitled to 15% wage-loss disability, the Administrative Law Judge determined that the claimant had been required to move to a lower wage rate with the respondent-employer as a result of his compensable injury. The claimant credibly testified that, as a result of the compensable injury and resulting anatomical impairment, he was unable to perform the welding duties of classification Group II-F. The record indicates that the employer therefore granted the claimant's request to be moved from the classification Group II-F into Group V, general production, effective March 22, 2001. The claimant's hourly pay rate was thus reduced as a result of the claimant's compensable injury and anatomical impairment. We recognize, as Commissioner Yates points out, that the claimant was working at a reduced pay rate at the time of his July 2000 compensable injury. However, because of the claimant's anatomical impairment which occurred as a result of his compensable injury, the claimant is now physically unable to pursue wages at the higher rate provided in classification Group II-F. The preponderance of evidence thus supports the Administrative Law Judge's award of 15% wage-loss disability in excess of the claimant's 5% anatomical impairment.
Based on our de novo review of the entire record, we find that the claimant proved by a preponderance of the evidence that he was entitled to an anatomical impairment rating of 5%. We find that the claimant proved that he was entitled to wage-loss disability of 15% in addition to his 5% anatomical impairment. The Full Commission therefore affirms the opinion of the Administrative Law Judge. 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 appeal before the Full Commission, the 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.
______________________________ ELDON F. COFFMAN, Chairman
Commissioner Turner concurs in part and dissents in part.
CONCURRING AND DISSENTING OPINION
I respectfully concur in part and dissent in part from the majority opinion. While I concur with the majority finding that claimant is entitled to an additional 15% wage loss disability benefit, I dissent from the majority finding that claimant suffered only a 5% permanent impairment.
Upon my de novo review of the record, I find that claimant sustained a permanent impairment above the previously awarded 5% rating. Dr. Moore, claimant's treating physician, found that claimant suffered "radiculopathy," that would be included in DRE impairment category III as a result of his compensable injury. Dr. Moore therefore opined that claimant is entitled to a 10% impairment rating at two levels (for a total 20% impairment rating).
Conversely, the majority relies on Dr. Tyrer's independent medical evaluation to find that claimant is not entitled to a impairment rating greater than 5%.
The Commission has the authority to accept or reject medical opinion and the authority to determine its medical soundness and probative force. Hope Livestock Auction Co. v. Knighton, 67 Ark. App. 165, 992 S.W.2d 826 (1999); Sapp v. Phelps Trucking, Inc., 64 Ark. App. 221, 984 S.W.2d 817 (1998).
When there are contradictions in the evidence, it is within the Commission's province to reconcile contradicting evidence and to determine the true facts. Arkansas Dept. of Health v. Williams, 43 Ark. App. 169, 863 S.W.2d 583 (1993).
I find claimant's treating physician to be in the best position to determine claimant's medical status, having treated and followed the claimant for some time. Necessarily, I would give greater weight to Dr. Moore's expert medical opinion than to that of Dr. Tyrer. I find that claimant proved his entitlement to an additional permanent impairment rating by a preponderance of the evidence. Therefore, I must concur in part and dissent in part from the majority opinion that affirms and adopts the Administrative Law Judge's decision.
Accordingly, I would reverse the Administrative Law Judge's decision and award claimant a 20% permanent impairment rating. For the foregoing reasons, I respectfully concur in part and dissent in part.
_______________________________ SHELBY W. TURNER, Commissioner
Commissioner Yates concurs in part and dissents in part.
CONCURRING AND DISSENTING OPINION
I respectfully concur in part and dissent in part from the majority's opinion. Specifically, I concur in the majority's opinion finding that the claimant's permanent impairment rating is 5% and he should not be awarded any additional permanent impairment. However, I must respectfully dissent from the majority's opinion finding that the claimant was entitled to wage loss disability benefits in the amount of 15%.
In my opinion, a preponderance of the evidence does not establish that the claimant was required, because of his physical condition, to move to a lower-paying job. In fact, both before the injury and after the injury, the claimant was working in Area 5. The claimant has extensive experience as a welder and the evidence indicates that the respondent-employer has numerous lighter welding duties available that the claimant failed to pursue. Further, the claimant's treating physicians have indicated that the claimant could return to full duty work with the only restrictions being excessive bending and stooping.
The evidence also demonstrates that after his injury, the claimant was able to work successfully in Area 5 without complaint or any additional needed treatment. He was also able to continue to bank fish, mow his yard, and walk two miles a day.
It appears that the majority has awarded the claimant wage loss disability benefits because his current hourly wage is lower than his wage before. However, the claimant has made no effort to retain a higher wage position by discussion with his physician or employer a lighter-duty within that grade. In my opinion, it is speculation to assert that the claimant's earning ability was impaired. Conjecture and speculation, even if plausible, cannot take the place of proof. Ark. Dept. of Correction v. Glover, 35 Ark. App. 32, 812 S.W.2d 692 (1991). Dena Construction Co. v. Herndon, 264 Ark. 791, 575 S.W.2d 155 (1970). Arkansas Methodist Hospital v. Adams, 43 Ark. App. 1, 858 S.W.2d 125 (1993).
Therefore, for all the reasons set forth herein, I must respectfully concur in part and dissent in part from the majority's opinion.
_______________________________ JOE E. YATES, Commissioner