Opinion
CLAIM NO. E700242
ORDER FILED JUNE 21, 2005
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by HONORABLE SILAS BREWER, Attorney at Law, Little Rock, Arkansas.
Respondent represented by HONORABLE NORWOOD PHILLIPS, Attorney at Law, El Dorado, Arkansas.
ORDER
This matter is currently before the Full Workers' Compensation Commission on remand from the Arkansas Court of Appeals. In an Opinion delivered March 16, 2005, the Arkansas Court of Appeals reversed and remanded this case to the Commission for an award of permanent partial disability benefits based on claimant's abdominal condition, for the Commission to determine claimant's impairment rating to the body as a whole, and for a determination of his wage-loss disability.
In accordance with the mandate of the Court of Appeals, we find that claimant is entitled to the 8% impairment rating assigned by Dr. Lillich and that claimant is entitled to wage-loss disability benefits in the amount of 50%.
I. Impairment Rating The Court of Appeals recognized that the "Commission determined that the AMA Guides governing permanent impairment ratings do not provide for an impairment for an abdominal defect absent a finding of a hernia", yet the Court reasoned that "the Commission erred in finding appellant did not prove entitlement to an impairment of the body as a whole related to his abdominal condition." While recognizing that Dr. Lillich's description of claimant's "impairment would be insufficient to support a finding of a hernia under the AMA impairment ratings for hernias," the Court held that "the Commission erred in disregarding evidence, including Dr. Lillich's report, that appellant suffered an 8% impairment rating to the body as a whole based on the defect in his abdominal wall." The Court further held:
Moreover, although Dr. Lillich used language from the AMA guidelines, he never opined that appellant had a hernia or that his impairment was based on a hernia. He simply opined that appellant's impairment rating to the body as a whole, attributed to his abdomen, was 8% `based on the palpable defect in the supporting structures of the abdominal wall.' The record amply supports this conclusion and does not provide any basis for the Commission to disregard Dr. Lillich's opinion concerning the permanency of appellant's abdominal condition, let alone the likely impact of that condition on appellant's ability to work.The Court ultimately concluded that claimant is "entitled to an impairment rating to the body as a whole because of the abdominal defect, we also reverse on this point and remand for the Commission to determine appellant's entitlement to wage-loss benefits." In light of the analysis consistent throughout the Court's decision, we find that claimant is entitled to a permanent impairment rating pursuant to the AMA Guides, regardless of whether he had a hernia since he suffers from an abdominal wall defect as a result of a compensable injury. Therefore, we find that claimant meets the criteria of a Class I impairment in Table 7 of the Guides. Table 7 on page 247 of the Guides defines a Class 1 impairment as follows:
Class 1:
0%-9% impairment of the whole person
Palpable defect in the supporting structures of abdominal wall;
and
Slight protrusion at site of defect with increased abdominal pressure; readily reducible;or
Occasional mild discomfort at site of defect, but not precluding normal activity.
The record shows that claimant has a palpable defect in his abdominal wall as a result of his compensable injury. Dr. Lillich's May 17, 2000 progress report states that claimant has a "palpable defect in supporting structures of the abdominal wall." The first requirement of a Class 1 injury, therefore, is met.
We also find that claimant has met the second requirement of Chart 1 in that he has credibly testified that he has a protrusion of the abdominal muscle at the site of the defect with increased abdominal pressure on the remaining muscle tissue. Alternatively, we find that claimant can establish an impairment rating pursuant to this chart by his undisputed testimony that he experiences discomfort at the site of the defect, especially when lifting, which inhibits his ability to lift weight in excess of 40 pounds. Though this is a subjective factor, the Commission routinely awards impairment ratings pursuant to Table 75 for spine disorders, for example, even though this table accounts for a claimant's pain. The Full Commission also recognizes claimant's credible testimony with respect to his discomfort and lifting limitations. We find, therefore, that claimant is entitled to compensation for the 8% permanent impairment assigned by Dr. Lillich.
II. Wage-loss
The Court has also instructed us to determine claimant's wage-loss disability benefits. We find that the ALJ's finding that claimant has incurred a 50% loss to his wage-earning capacity should be affirmed.
Claimant, age 52 at the time of the hearing, has a high school education and has also received training at a machinist school. His work history includes working at an auto parts store for about 10 years, six of which he was store manager; working as an equipment supervisor at a construction company for 2 1/2 years; working as a shop helper and machinist operator for Orbit Valve for 3 years; and as a production supervisor at a manufacturing facility. Claimant worked for respondent from 1987 until his discharge in 2001 with the exception of time off due to his compensable injuries from 1997 to 1999. Claimant last earned $12.84 as a forklift driver while in Respondent's employ. Claimant also testified that he would still be working as a forklift operator for respondent had he not been terminated. While working in this position, he earned his highest salary during his work history, $32,000.00. After his injury, he attempted to complete respondent's millwright apprenticeship program, but was unable to complete the training due to his physical limitations and returned to his fork lift operator position. Had he been able to complete the apprenticeship, he estimated that his annual salary would be $45,000.00. Claimant was terminated in August, 2001 on allegations of theft. He feels that his termination was actually retaliation for his ADA request that respondent provide air conditioning in the cab of his forklift since the heat created large amounts of sweat in his prosthesis and was very uncomfortable. After his termination, claimant filed an ADA action, which was settled out of court pursuant to the terms of a confidential settlement agreement.
Claimant testified that his physical condition significantly limits his ability to perform any of his previous jobs:
Q: What about your physical ability now to work in any of these jobs that you've previously held?
A: The jobs mentally, you know, it's not mental, it's the physical capacity of staying on my feet. I can't walk like I used to and stay on my feet like I used to. They just hurt.
Q: How long can you be on your feet before you experience enough discomfort that you've got to change positions, sit down or rest?
A: Approximately two hours, or something like that.
Q: Now how far can you walk without experiencing that same kind of discomfort?
A: Oh, I can probably walk, I guess, a city block, or something like that, probably three, or something like that. What happens is it start rubbing, the prosthetic starts rubbing three to four city blocks, maybe, something like that.
Q: How do you do yard work, or do you do yard work?
A: Yes, I do, but I've got a riding mower.
Q: All right. Do you think the amount of walking and standing that you would have done in these various jobs that you held before you got hurt would exceed the amount that you could tolerate with your present condition?
A: Oh, definitely, yes.
After his termination in August, 2001, claimant sought various positions, including working as a car salesman, but was unable to keep these jobs due to walking and standing limitations associated with his prosthesis. Claimant testified that his legs hurt so bad from the walking that he had to quit the sales job. Since June 1, 2002, he has worked 16 hours per week as a boiler operator at a hospital at a rate of $10.84 per hour. He began receiving social security disability benefits in 1999. Claimant testified that he would still be working as a fork lift operator for respondent had he not been terminated.
Claimant continues to take pain medication as a result of his compensable injury included 400 mg of Neurontin five times a day for phantom leg and nerve ending pain in his amputated leg. He also takes 40 mg of Oxycontin three times a day to control pain in his right ankle and foot. He testified that these medications make him very drowsy. With regard to his abdominal tissue loss, claimant testified that he cannot lift more than 40 pounds due to his loss of abdominal muscle and the strain that lifting weight puts on his remaining abdominal muscle tissue.
After we consider claimant's age, limited education, work experience requiring physical capability beyond his current abilities, ongoing need for pain medication, his physical limitations in standing, walking, and lifting, his significant permanent physical impairment to his body as a whole, his credible testimony, and his motivation to work as exemplified by his current part-time employment and return to work following his amputation and surgeries, we find that the ALJ's wage-loss award should be 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. 2002).
Since the claimant's injury occurred prior to July 1, 2001, the claimant's attorney's fee is governed by the provisions of Ark. Code Ann. § 11-9-715 as it existed prior to the amendments of Act 1281 of 2001. Compare Ark. Code Ann. § 11-9-715(Repl. 1996) with Ark. Code Ann. § 11-9-715 (Repl. 2002). 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 in accordance with Ark. Code Ann. § 11-9-715(b) (Repl. 1996).
IT IS SO ORDERED.
_______________________________ OLAN W. REEVES, Chairman
_______________________________ SHELBY W. TURNER, Commissioner
Commissioner McKinney concurs in part and dissents in part.
CONCURRING AND DISSENTING OPINION
The Commission is not a party to this action and cannot directly petition for review, rather, we must follow the Court's mandate. Accordingly, I am constrained to concur with the majority awarding permanent partial disability benefits to the claimant. However, I feel compelled to point out that the Court has put this Commission in direct conflict between the legislature and the Court by remanding this claim for an award of benefits, when the statutory barriers prevent an award of permanent partial disability benefits since the claimant's injury and condition are not covered under the AMA Guides to the Evaluation of Permanent Impairment, 4th edition. See Wal-Mart Stores, Inc. v. Connell, 340 Ark. 475, 10 S.W.3d 727 (2000).
The Court relied upon Dr. Lillich's assignment of an 8% impairment rating, yet the Court did not address the fact that the AMA Guides to the Evaluation of Permanent Impairment, 4th edition fails to provide for an impairment for this claimant's condition. I humbly seek the Court's guidance should this situation occur in the future. The Court has mandated for an award of permanent partial disability benefits after we found that such an award is not appropriate under the AMA Guides to the Evaluation of Permanent Impairment 4th edition, without finding that we erred in this particular finding. The Court did not directly instruct us to ignore these Guides, nor did the Court hold that the Guides should not be applicable to this claim.
Ark. Code Ann. § 11-9-522(g) provides that the Commission shall adopt an impairment rating guide to be used in the assessment of anatomical impairment. Accordingly, pursuant to Commission Rule 34 the Commission adopted the AMA Guides to the Evaluation of Permanent Impairment, 4th edition. Rule 34 further states in accordance with A.C.A. § 11-9-102(16)(A)that when determining physical or anatomical impairment complaints of pain may not be considered. The statute further requires that this guide be subject to review by the General Assembly every odd-numbered year beginning with the regular legislative session of 1999.
When the AMA Guides to the Evaluation of Permanent Impairment, 4th Edition fails to provide a means to assess a physical impairment rating for a compensable injury, we are constrained to find that the claimant has failed to prove entitlement to any permanent partial disability benefits related to that injury. See Wal-Mart Stores, Inc. v. Connell, 340 Ark. 475, 10 S.W.3d 727 (2000). Henderson v. Riverside Furniture, Full Commission opinion June 3, 2003 ( F10435); and Potocki v. St. Edward Mercy Medical Center, Full Commission opinion filed February 3, 2004 ( F004149) (affirmed on appeal in an unpublished opinion filed January 26, 2005). In Connell, the claimant sustained a compensable injury to her knee and subsequently developed reflex sympathetic dystrophy. Although the claimant in Connell was not awarded permanent partial disability benefits for a physical impairment rating, the Full Commission awarded the claimant wage loss disability on the basis that the claimant had sustained some degree of impairment which was not discernable under Arkansas law. The Arkansas Supreme Court granted Wal-Mart's petition for review after the Court of Appeals affirmed the Full Commission. In reversing the award of wage loss disability, the Supreme Court stated, "We find that the statutory barriers that prevented the Commission from assigning a specific impairment rating and foreclosed an award of permanent benefits were nothing less that fatal to Connell's claim for wage-loss disability benefits." Wal-Mart Stores, Inc. v. Connell, 340 Ark. 475, 10 S.W.3d 727 (2000) (Emphasis added).
In the present case, the claimant was assessed an 8% impairment rating by Dr. Lillich "based on the palpable defect in the supporting structures of the abdominal wall which places him in a Class I type impairment." This rating is only based upon one of the criteria set forth in the guides adopted by the Commission for the assessment of an impairment. Chapter 10.9 of the AMA Guides to the Evaluation of Permanent Impairment, Fourth Edition, and more specifically Table 7, refers to impairment for "Hernias of the Abdominal Wall" and "Classes of Hernia-related Impairment." As noted by the Court of Appeals, the evidence unequivocally fails to support a finding of an abdominal wall hernia. The criteria for evaluating permanent impairment due to herniation of the abdominal wall are set forth in Table 7 title, Classes of Hernia-related Impairment as follows. Class 1 Class 2 Class 3 and and and or or and
0%-9% impairment 10%-19% impairment 20%-3-% impairment of the whole person of the whole person of the whole person Palpable defect in Palpable defect in Palpable defect in supporting supporting supporting structures of structure of structure of abdominal wall abdominal wall abdominal wall Slight protrusion Frequent or Persistent, at site of defect persistent irreducible, or with increased protrusion at site irreparable abdominal of defect with protrusion at site pressure; readily increased of defect; reducible; abdominal pressure; manually reducible; Occasional mild Frequent Limitation in discomfort at site discomfort, normal activity. of defect but not precluding heavy precluding normal lifting, but not activity. hampering normal activity. In assessing the claimant an 8% impairment rating, Dr. Lillich stated in her May 17, 2000 progress report that the claimant has a "palpable defect in the supporting structures of the abdominal wall." Thus, meeting the first element necessary for an impairment under Class I. Although the claimant testified that he experiences discomfort and difficulty with lifting, and that he has a slight protrusion on the opposite side of his abdomen when he lifts, Dr. Lillich did not address whether the claimant possessed either of the two remaining criteria which must be present in order to support an impairment in the 0%-9% class; "whether the claimant has a slight protrusion at the site of the graft with increased abdominal pressure which is readily reducible or whether there is mild discomfort at the site of the graft." As this last criteria is clearly subjective, we are precluded from considering it in making any permanent impairment determination. Contrary to the majority's finding, it is only this subjective evidence which the claimant has submitted into evidence to comply with the remaining Class I hernia impairment criteria. The claimant sustained an injury to his abdomen wherein tissue about the size of a fist was harvested. The record is silent with regard to whether this harvest site resulted in a slight protrusion with increased pressure; as this is clearly a component of a hernia, it is doubtful that the claimant experiences this element for an impairment. At best, the claimant testified that the side opposite the harvest site protrudes, which made him suspect a hernia in that location. In my opinion the majority has taken great liberty with the claimant's testimony in concluding that this testimony of protrusion in an area away from and on the opposite side from the graft site actually satisfies the requirement of "slight protrusion at site of defect with increased abdominal pressure; readily reducible." (Emphasis added) Merely because the claimant had a slight protrusion on his abdomen is not sufficient to satisfy the elements for an impairment as it is not at the site of the defect.The claimant has failed to present any evidence of a hernia associated with the abdominal graft site or resulting from the removal of abdominal tissue. Since the criteria and the rating itself are specifically for "hernia-related impairments" and require evidence of a slight protrusion, and since it is undisputed that the claimant did not sustain a hernia, the Guides do not provide a means to assess an impairment for this rectus abdominus flap procedure. Even accepting Dr. Lillich's assignment of an 8% impairment for the abdominal defect, neither Dr. Lillich's report, nor the remaining evidence of record satisfy the remaining criteria necessary to award an impairment pursuant to the Guides adopted by the Commission. Therefore, despite the Court's directive to award the claimant permanent partial disability which I am constrained to obey, I maintain that we are without a means to make such an award. I agree with the Court that the claimant has sustained an injury to his abdominal wall as a result of a compensable consequence of his compensable lower extremity injury. It is extremely unfortunate that his injury is not addressed in the guidelines for permanent impairment adopted by the Commission; however, I do not believe that we are statutorily permitted to simply disregard these guidelines.
With regard to the award of wage-loss disability, I must respectfully disagree with the majority. Based upon my de novo review of the entire record, I find that the claimant has failed to establish that he has sustained a 50% loss in his wage earning capacity.
_______________________________ KAREN H. MCKINNEY, Commissioner