Opinion
CLAIM NO. D908855
OPINION FILED AUGUST 16, 1994
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by STEVEN L. FESTINGER, Attorney at Law, Lake Village, Arkansas
Respondent represented by J. C. BAKER, JR., Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Reversed.
OPINION AND ORDER
This matter comes on appeal from the Full Commission from the February 4, 1994 decision in which the Administrative Law Judge found that claimant has proven by a preponderance of the credible evidence that his hypertension has been aggravated by residual back pain as a result of his compensable May 1, 1989 injury and that he is permanently and totally disabled.
After conducting a de novo review of the entire record, we find that claimant has failed to prove by a preponderance of the credible evidence that he is permanently and totally disabled or that his hypertension is a compensable consequence of his May 1, 1989 back injury. Therefore, we reverse the decision of the Administrative Law Judge.
Claimant sustained a compensable back injury on May 1, 1989. Claimant reached the end of his healing period on May 8, 1993 and was assessed a 10% permanent anatomical impairment rating. Claimant presently contends that he is permanently and totally disabled as a result of an aggravation of his hypertension. Respondent maintains that claimant is not entitled to additional permanent partial disability benefits because claimant was offered a bona fide offer of employment within his restrictions which bars recovery of wage loss disability benefits. A hearing was held and an Administrative Law Judge found that because claimant's back injury aggravated the hypertension, the hypertension as opposed to the back injury nullified the job offer. Therefore, claimant was found to be permanently and totally disabled.
The burden of proving the job relatedness of any alleged injury rests upon the claimant, Pearson v. Faulkner Radio Service, 220 Ark. 368, 247 S.W.2d 964 (1952); and there is no presumption to this effect, Farmer v. L.H. Knight Co., 220 Ark. 333, 248 S.W.2d 111 (1952). Indeed, the party having the burden of proof on the issue must establish it by a preponderance of the evidence. A.C.A. § 11-9-704 (c)(2) (1986). In determining whether a claimant has sustained his or her burden of proof, the Commission shall weigh the evidence impartially, without giving the benefit of the doubt to either party. A.C.A. § 11-9-704;Wade v. Mr. C Cavenaugh's, 298 Ark. 363, 768 S.W.2d 521 (1989); and Fowler v. McHenry, 22 Ark. App. 196, 737 S.W.2d 663 (1987). Additionally, A.C.A. § 11-9-522 provides:
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 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 permanent physical impairment established by the preponderance of the medical testimony in evidence.
Based upon a de novo review of the entire record, claimant has failed to prove by a preponderance of the credible evidence that there is a causal connection between his hypertension and his work-related injury. Furthermore, a preponderance of the credible evidence indicates that claimant has failed to accept a bona fide offer of employment within his restrictions. Therefore, he is barred from receiving wage loss disability benefits. Thus, as stated, we reverse the decision of the Administrative Law Judge.
A preponderance of the evidence shows that claimant received a bona fide job offer. A functional capacity evaluation indicates that claimant was capable of lifting 20 pounds occasionally and 10 pounds frequently. This was as of September 5, 1992. Additionally, Ms. Rosanne Bales, an occupational nurse, testified that after the functional capacity evaluation was reviewed, she met with claimant's supervisor and division manager. At that time they discussed finding a job or manufacturing a job which would be consistent with claimant's restrictions. A job was developed in the tool room. The job was well within claimant's restrictions and was made available to claimant. Rhonda Ford, a vocational rehabilitation specialist with Crawford and Company, also acknowledged that this job was within claimant's restrictions. Consistently, in April of 1993, Dr. Simpson reviewed the job description. In response, Dr. Simpson wrote:
Mr. Wilson apparently has been offered a job by Riceland Foods as a tool room inventory clerk. I have looked up the description and I find no problem with him doing this. This gentlemen, however, has been off work for four years now. From the studies that I have done, I have not seen that he has any evidence of any disc herniation and that he is not an operative candidate. He has already been evaluated by a functional capacity evaluation saying that he can do light duties and these job descriptions that are given to him certainly qualify for light duty type job. Again, I would have no problem with him returning to that type of work.
Dr. Nix concurred and maintained that the light duty job with little or no lifting would be suitable for claimant.
The job was intended as full-time work and was a higher paying job. However, claimant was not motivated to return to work as evidenced by his half-hearted attempts. On the five days claimant showed up for work, he did not stay more than a couple of hours. Claimant readily acknowledged that the job was within his restrictions.
It is clear that claimant was offered a job making greater than pre-injury wages that was within his restrictions. Thus, A.C.A. § 11-9-522 prohibits claimant from any additional permanent partial disability benefit in excess of his anatomical impairment rating. We find that the Administrative Law Judge simply refused to apply A.C.A. § 11-9-522.
Also, claimant failed to prove by a preponderance of the credible evidence a causal relationship between his hypertension and his back injury. The lack of causal relationship is not due to a lack of inquiry on behalf of either side. It is clear that Dr. Nix on October 28, 1993 specifically stated that "he (claimant) had a great deal of problem with hypertension which I do not feel is causally related to this problem." Also, Dr. Daniel wrote in October of 1993:
Mr. Festinger, I realize you would like for the etiology of hypertension to be workman's comp related. To my knowledge, back pain does not cause essential hypertension. As you are aware, essential hypertension is a very common disease in black males. It generally has an insidious onset and the cause is totally unknown. I do not believe you can find any reputable medical expert that will say Mr. Wilson's high blood pressure is directly caused by his back injury.
I hope this clears this matter up. I know of no appropriate medical specialist that Mr. Wilson needs to see for treatment of hypertension. Mr. Wilson needs to come into the clinic and be seen on a regular basis and take prescribed medications. I understand that it is difficult for him to buy medications. I understand that it is difficult for him to pay office visits. I understand that if this was workman's comp you would expect workman's comp to provide medication and office visit payments. It would be nice for me to say that this is workman's comp related, whereby I might get paid. That, unfortunately, is not the case. His moderate to severe hypertension will require medication the rest of this life. Sometime in the future I suspect his back pain will resolve but unfortunately he will continue to have hypertension.
Dr. Daniel and Dr. Nix are of the opinion that claimant's hypertension is not causally related to his work-related injury. Also for consideration is Dr. Simpson's opinion regarding the hypertension. Dr. Simpson wrote:
As far as Mr. Wilson's hypertension is concerned he came to me with a history that he had had hypertension in the past. I know that his injury occurred back in 1989. If he was treated for hypertension before that then certainly his injury is not the cause of it. If he is in pain it can aggravate the hypertension but again, that is really hard to medically say if his pain is a contributing factor since hypertension can occur with any injury or be intensified by pain.
Dr. Simpson's opinion is equivocal at best. He does not maintain there is a relationship between claimant's compensable injury and the hypertension, only a possibility. This is insufficient evidence to support a conclusion that claimant has proven by a preponderance of the credible evidence a causal relationship between his compensable back injury and his hypertension. Thus, we find that claimant's hypertension is not an aggravation, the natural progression or a residual affect of claimant's compensable injury. Additionally, claimant has received a bona fide job offer making greater wages than he was making at the time of the injury. Therefore, we reverse the decision of the Administrative Law Judge.
IT IS SO ORDERED.
Commissioner Humphrey dissents.