Opinion
CLAIM NO. E304592
OPINION FILED AUGUST 5, 1994
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE JONATHAN P. SHERMER, JR., Attorney at Law, Russellville, Arkansas.
Respondents represented by the HONORABLE WILLIAM C. FRYE, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed in part, vacated in part.
OPINION AND ORDER
The claimant appeals an opinion and order filed by the administrative law judge on August 27, 1993. In that opinion and order, the administrative law judge found that the claimant failed to prove by a preponderance of the evidence that additional medical treatment is necessary for the treatment of her injury or that she is entitled to vocational rehabilitation. In addition, the administrative law judge found that the claimant failed to prove by a preponderance of the evidence that she is entitled to wage loss disability benefits. Finally, the administrative law judge found that the claimant's counsel is liable for reimbursement to respondents for fees and expenses associated with the hearing, pursuant to Ark. Code Ann. § 11-9-714 (1987). The only issues raised on appeal relate to the claimant's entitlement to additional indemnity benefits and to the imposition of costs on claimant's counsel.
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 loss in earning capacity as a result of her injury. Consequently, we find that the claimant failed to prove by a preponderance of the evidence that she is entitled to any additional indemnity compensation, and we find that the administrative law judge's decision in this regard must be affirmed. However, we find that the administrative law judge's imposition of costs against claimant's counsel must be vacated. In addition, we find that the administrative law judge's decision must be affirmed in all other respects. The claimant was employed by the respondent employer for approximately four months as a cook. On February 24, 1993, she sustained an admittedly compensable injury to her lower back and left knee when she slipped and fell. She initially received medical treatment for complaints of pain in her low back and in her left knee from Dr. Gene Ring, a general practitioner, on February 26, 1993. However, when her complaints persisted, Dr. Ring referred her to Dr. Ted Honghiran, an orthopedic specialist, and Dr. Honghiran first examined the claimant on March 9, 1993, His report of that examination indicates that her lumbar range of motion was limited and that there was tenderness along the lumbosacral junction and the left hip area. However, the straight leg raising test was normal, and the claimant's reflexes and sensation were normal. His examination of her knee did not demonstrate any acute swelling or effusion, and there was good ligament stability and a full range of motion. X-rays of the claimant's low back and her knee did not reveal any abnormality. Based on these findings, Dr. Honghiran diagnosed an acute lumbosacral strain and a strain of the left knee, and he took her off work. Dr. Honghiran also examined the claimant on March 16, 1993 and March 23, 1993. His report of these visits indicate that the claimant continued to complain of some soreness, but the reports also indicate that the physical examination was essentially normal. Consequently, on March 23, 1993, Dr. Honghiran advised the claimant to return to work the next day. The claimant returned to Dr. Honghiran on March 30, 1992, and his report of that visit states that the claimant attempted to return to work but was only able to work 2 1/2 hours due to pain. This report also indicates that the claimant was complaining of pain radiating into her left leg. Based on the complaint of radicular pain, Dr. Honghiran ordered an MRI to rule out the possibility of a herniated nucleus pulposus, but this MRI did not reveal any abnormality. Nevertheless, Dr. Honghiran continued to follow the claimant, and he advised her to stay off work due to continued range of motion limitations secondary to pain and muscle spasm. However, his April 27, 1993, back examination showed a complete range of motion with no sciatic pain, and the examination was otherwise normal. Consequently, Dr. Honghiran released the claimant to return to her regular duty work on April 28, although he did advise her to limit bending and squatting. Dr. Honghiran last examined the claimant on June 1, 1993, and he again opined at that time that she was physically able to return to work. In addition, Dr. Honghiran opined that the claimant had reached maximum recovery, and he opined that she did not sustain any permanent physical impairment.
At the hearing, the claimant testified that she continues to experience constant pain. On a scale of 0 to 10, with 10 being the most severe, she rated the level of pain she experiences at 9. She did attempt to return to work when she was released by Dr. Honghiran on April 28, 1993. However, the respondent employer had replaced her and did not have any other positions available. She was advised that they would contact her when a position became available, but she has not been contacted. She also testified that she has applied for employment with "25 or 30 or 40" potential employers, but these efforts have been unsuccessful.
On appeal, the claimant primarily contends that she is entitled to some type of indemnity compensation because the respondents failed to return her to work or to help her to obtain employment at wages equal to her average weekly wage at the time of the injury. However, we note that it is not clear what type of indemnity benefits she is claiming due to the fact that the claimant's attorney has raised arguments and has made reference to forms of relief which are inconsistent with the relief which he ultimately requests on behalf of the claimant. Specifically, claimant's counsel expressly requests an award of temporary total disability. However, he bases his request on statutory law and case law pertaining to permanent partial disability, and he makes reference to permanent partial disability and wage loss disability in his arguments.
Nevertheless, we find that the claimant has failed to prove by a preponderance of the evidence that she continues to experience any incapacity to earn which is related to her compensable injury. Therefore, we find that she failed to prove that she is entitled to any additional indemnity compensation. As discussed, she contends that she is entitled to indemnity compensation because the respondents failed to return her to work or to help her to obtain employment at wages equal to her average weekly wage at the time of the injury. In support of this contention, she contends that Ark. Code Ann. § 11-9-522 (1987) creates a duty for respondents to help claimants return to work and that claimants are entitled to indemnity compensation until they return to work. We find that the claimant's interpretation of this statute is without merit. She relies on subsections (b) and (c)(1) of this statute, and these subsections provide the following:
(b) In considering claims for permanent partial disability benefits in excess of the employee's percentage of permanent physical impairment, the commission may take into account, in addition to the percentage of permanent physical impairment, such factors as the employee's age, education, work experience, and other matters reasonably expected to affect his future earning capacity. However, so long as an employee, subsequent to his injury, has returned to work, has obtained other employment, or has a bona fide and reasonably obtainable offer to be employed at wages equal to or greater than his average weekly wage at the time of the accident, he shall not be entitled to permanent partial disability benefits in excess of the percentage of permanent physical impairment established by a preponderance of the medical testimony and evidence.
(c)(1) The employer or his workers' compensation insurance carrier shall have the burden of proving the employee's employment, or the employee's receipt of a bona fide offer to be employed, at wages equal to or greater than his average weekly wage at the time of the accident.
However, claimant's argument fails to take into consideration the provisions of Ark. Code Ann. § 11-9-522 (c)(2), which provides the following:
(c)(2) Included in the stated intent of this section is to enable an employer to reduce or diminish payments of benefits for a functional disability, disability in excess of permanent physical impairment, which, in fact, no longer exists, or exists because of discharge for misconduct in connection with the work, or because the employee left his work voluntarily and without good cause connected with the work.
The claimant's argument also fails to take into consideration the interpretation of Ark. Code Ann. § 11-9-522 (b) by the Arkansas Court of Appeals. In this regard, the Arkansas Court of Appeals has found that the effect of Ark. Code Ann. § 11-9-522 (b) (1987) is to "limit compensable disability to the percentage of physical impairment for as long as the employee's wages are the same after the injury."Cook v. Alcoa, 35 Ark. App. 16, 811 S.W.2d 329 (1991). In addition, the Court of Appeals has found that "our legislature was attempting to prevent the employer from being liable for benefits for the loss of the ability to earn wages while the injured employee is actually earning wages equal to the wages he was earning at the time of his injury." Cook, supra. The Arkansas Supreme Court has also noted that the provision "purports to disentitle an employee to benefits in excess of the percentage of permanent physical impairment so long as he or she has returned to work, or had a bona fide offer of work, at the same wage level. Grimes v. North American Foundry, 316 Ark. 395, ___ S.W.2d ___ (1994); see also, Sharon Belcher v. Holiday Inn, 43 Ark. App. 157, 868 S.W.2d 87 (1993); J B Drilling v. Lawrence, 45 Ark. App. 157, ___ S.W.2d ___ (1994).
When the provisions relied upon by the claimant are considered in light of the intent expressly stated by the General Assembly and in light of the Court's interpretation, it is clear that Ark. Code Ann. § 11-9-522 (b) merely provides a defense which may be raised by respondents, and subsection (c) merely restates the general rule of law that a party asserting a defense bears the burden of proving the elements necessary to establish the defense. Therefore, contrary to the assertions of the claimant, these statutory provisions do not create any duty for respondents nor do the provisions shift the burden of proof to respondents in claims for unscheduled permanent disability in excess of the impairment rating, unless the respondent defends by raising the provisions in the second sentence of Ark. Code Ann. § 11-9-522 (b). Then, the burden of proof only shifts with regard to the defense.
To find that injured employees are entitled to indemnity compensation until they return to work, as claimant requests, would create rights and benefits which are not provided for in the Arkansas Workers' Compensation Law. Disability is defined as follows in Ark. Code Ann. § 11-9-102 (5)
"Disability" means incapacity because of injury to earn, in the same or any other employment, the wages which the employee was receiving at the time of the injury.
Our Courts have consistently applied this definition to find that the incapacity to earn is the essential requirement in showing the entitlement to indemnity compensation. Consequently, incapacity to earn has been found to be an essential factor in an award for temporary disability, for temporary disability compensation is payable for the period during which the injured employee is in her healing periodand suffers an incapacity to earn as a result of the injury.Arkansas State Highway and Transportation Department v. Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981); Arkansas Department of Health v. Williams, 43 Ark. App. 169, 863 S.W.2d 583 (1993); Arkansas Secretary of State v. Guffey, 291 Ark. 624, 727 S.W.2d 826 (1987); J.A. Riggs Tractor Co. v. Etzkorn, 30 Ark. App. 200, 785 S.W.2d 51 (1990). Likewise, incapacity to earn has been found to be the controlling factor for an award of permanent disability compensation in excess of permanent anatomical impairment.Rooney v. Charles, 262 Ark. 695, 560 S.W.2d 797 (1978);Grimes v. North American Foundry, 42 Ark. App. 137, 856 S.W.2d 309 (1993); Curry v. Franklin Electric, 32 Ark. App. 168, 798 S.W.2d 130 (1990).
In short, the Arkansas Workers' Compensation Law authorizes awards of indemnity compensation to injured employees only if, as a result of a compensable injury, the injured employee suffers an incapacity to earn the wages which she was earning at the time of the injury. Furthermore, the Arkansas Workers' Compensation Law is a creature of statute, and rights and remedies cannot be created which are not provided for under the law absent legislative action. Curry, supra; Guffey, supra. Consequently, we find that the claimant's contention that she is entitled to indemnity benefits due to the fact that the respondents failed to return her to work or to assist her in finding work must be rejected.
Furthermore, we find that the claimant failed to prove that she sustained any incapacity to earn as a result of her compensable injury. When considering whether an injured worker suffers from an incapacity to earn as a result of the injury, the Commission must consider, in addition to medical evidence demonstrating the degree to which the worker's anatomical disabilities impair her earning capacity, factors which may affect the worker's ability to earn wages, such as the worker's age, education, work experience, and any other matters which may affect the worker's future earning capacity, including the degree of pain experienced by the worker. Ark. Code Ann. § 11-9-522 (1987); Tiller v. Sears, 27 Ark. App. 159, 767 S.W.2d 544 (1989). In considering the factors which may affect an employee's future earning capacity, we may also consider the claimant's interest in returning to work, since a lack of interest or a negative attitude impedes our assessment of the claimant's loss of earning capacity. Curry, supra; City of 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 the present claim, the claimant was 29 years old at the time of the hearing. She dropped out of school after being retained in the 7th grade for three years. She has no other formal education or other training. She testified that she is able to read and write to an extent, and she can add and subtract. She testified that she can make change if given enough time. She has a very sporadic work history, mainly as a cook or waitress in fast food restaurants, although she has worked briefly in chicken processing plants. She has never held a job more than a few months, and her highest salary was $5.25 per hour. Over the past fifteen years, she has been employed a total of less than three years.
Despite the claimant's contention that she continues to suffer severe pain, the medical evidence establishes that she sustained only a minor injury, and the medical evidence establishes that she had fully recovered from the injury at least by April 27, 1993, when Dr. Honghiran released her to return to work. Therefore, her healing period and her potential entitlement to temporary total disability compensation had ended by that date. Furthermore, despite her complaints, the claimant testified that the only reason she had not returned to work was because she was unable to find any work due to lack of employment opportunities, not because of any incapacity resulting from her injury. In fact, the claimant conceded that she had not gotten a job due to her poor work record and lack of qualifications. We also note that the claimant's poor work record also indicates a lack of interest in working. Notably, she previously sustained a work-related injury while employed by a different employer. Although she was only off work two weeks before she was released with no residual impairment, she remained off work for four years for reasons unrelated to her injury.
Therefore, we find that a preponderance of the evidence establishes that the claimant's inability to find work is due to the unavailability of work for reasons unrelated to her injury. However, as discussed, disability is determined by an incapacity to perform work, not the lack of employment opportunities. Leslie v. Sanyo Mfg. Corp., 13 Ark. App. 59, 679 S.W.2d 222 (1984). Consequently, we find that claimant failed to prove by a preponderance of the evidence that she sustained any incapacity to earn as a result of her injury.
Finally, we note that the parties question whether evidence of a permanent anatomical impairment is necessary to support an award of wage loss. Although, our decision is based on the finding that the claimant did not sustain any incapacity to earn as a result of the injury, not that she did not sustain any anatomical impairment, we note that our appellate Courts and this Commission have found that evidence of a permanent physical impairment is not necessary to support an award of wage loss. See, Dacus Casket Co. v. Hardy, 250 Ark. 886, 467 S.W.2d 713 (1971); Wilson Co. v. Christman, 244 Ark. 132, 424 S.W.2d 863 (1968);Terrell v. Austin Bridge Co., 10 Ark. App. 1, 660 S.W.2d 941 (1983); Arkansas Methodist Hospital v. Adams, 43 Ark. App. 1, 858 S.W.2d 125 (1993); Ark. Dept. of Health v. Williams, 43 Ark. App. 169, 863 S.W.2d 583 (1993); see also, Danny Chase v. American Bronze Craft, Full Workers' Compensation Commission, May 20, 1991 (Claim NO. E003227); Elton E. Crawford v. Atlas Carriers, Inc., Full Workers' Compensation Commission, Jan. 21, 1992 (Claim No. D714089); Leroy Melson v. City of Prairie Grove, Full Workers' Compensation Commission, Sep. 10, 1985 (Claim No. D411945).
Finally, as discussed, the administrative law judge imposed costs against claimant's attorney pursuant to Ark. Code Ann. § 11-9-714 (1987). However, the administrative law judge did not make any findings with regard to her reasons for imposing costs against the claimant's attorney. Furthermore, we are unable to find any basis for concluding that the claimant did not have reasonable grounds for instituting and continuing the claim from the record. Therefore, we find that the administrative law judge's decision must be vacated.
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 sustained any incapacity to earn as a result of her injury. Therefore, we find that she failed to prove by a preponderance of the evidence that she is entitled to any additional indemnity compensation. Consequently, we find that the administrative law judge's decision in this regard must be, and hereby is, affirmed. However, we find that the administrative law judge's imposition of costs against claimant's counsel must be, and hereby is, vacated. In all other respects, the administrative law judge's decision is affirmed. This claim for additional benefits is hereby denied and dismissed.
IT IS SO ORDERED.
CONCURRING AND DISSENTING OPINION
I concur in part and dissent in part with the majority's opinion. I concur with the decision finding that claimant is not entitled to any wage loss disability benefits. However, I dissent from the majority's opinion vacating the assessment of the cost of the hearing to claimant's attorney.
Arkansas Code Ann. § 11-9-714 provides:
If the court having jurisdiction of proceedings in respect of any claim or compensation order determines that the proceedings in respect to the claim or order has been instituted or continued without reasonable grounds, the cost of the proceedings shall be assessed against the party who has instituted or continued the proceedings.
This section also provides that the assessment of costs is within the discretion of the Administrative Law Judge. The clear intent of this section is to discourage the litigation of unfounded claims.
In my opinion, the majority erred in determining that are not reasonable grounds upon which the Administrative Law Judge could assess costs. The record indicates that the claimant promulgated this claim despite the fact that there were no objective or measurable physical or mental findings to support a determination of wage loss. It is difficult to understand how a claimant can argue that this case was brought in good faith when the record does not show a permanent impairment rating or other evidence of a wage loss disability. Therefore, the assessment of costs against claimant's lawyer for instituting and continuing this claim without reasonable grounds is appropriate.
Even if it is questionable under the law applied in this case as to whether the assessment of costs against claimant's attorney is unreasonable, under the new law, the present law, i.e. Act 796 of 1993, it is unquestionable that the Administrative Law Judge would have been affirmed. Section 36 (a) provides:
If a claim, request for benefits, request for additional benefits, controversion of benefits, request for a hearing, pleading, motion, or other paper is signed in violation of this rule, the commission, including administrative law judges, upon motion or upon their own initiative shall impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay the other party or parties the amount of reasonable expenses incurred because of the filing of a claim. . . (Emphasis added.)
The General Assembly saw fit to encourage Administrative Law Judge's and Commissioners to impose sanctions in order to prevent the litigation of unworthy claims. The Administrative Law Judge in this case saw fit to exercise her discretion. This conduct should be encouraged by and supported by the Commission. This is the kind of conduct the General Assembly has directed and ordered the Administrative Law Judges and Commissioners to exercise. Thus, I dissent from the portion of the majority's opinion vacating the Administrative Law Judge's assessment of costs.
ALLYN C. TATUM, Commissioner
CONCURRING AND DISSENTING OPINION
While I agree with the opinion to vacate the Administrative Law Judge's finding that claimant's counsel is liable for costs pursuant to Ark. Code Ann. § 11-9-714, I must respectfully dissent from the finding that claimant is not entitled to any benefits for wage loss disability.
When Dr. Honghiran released claimant to return to work in April 1993, he clearly limited her bending and squatting. Claimant's efforts to return to work for the employer were unsuccessful, as were her efforts to find suitable, gainful employment in her community. Based on claimant's limited education and employment history, the limitations imposed on her by Dr. Honghiran, her considerable efforts to find suitable employment, and the degree of pain she experiences, I find that claimant has proven by a preponderance of the evidence that she is entitled to benefits for wage loss disability.
PAT WEST HUMPHREY, Commissioner