Opinion
CLAIM NO. E008203
OPINION FILED SEPTEMBER 20, 1996
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by W. LEE TUCKER, Attorney at Law, Bryant, Arkansas.
Respondents represented by NORWOOD PHILLIPS, Attorney at Law, El Dorado, Arkansas.
Decision of Administrative Law Judge: Affirmed.
OPINION AND ORDER
Respondents appeal an opinion of the Administrative Law Judge finding that claimant is permanently and totally disabled.
Claimant has the burden of proving by a preponderance of the evidence that she is entitled to compensation. Stone v. Patel, 26 Ark. App. 54, 759 S.W.2d 579 (1988); Ark. Code Ann. § 11-9-705(a)(3) (Repl. 1996). Questions of credibility and the weight and sufficiency to be given evidence are matters within the province of the Workers' Compensation Commission. Grimes v. North American Foundry, 42 Ark. App. 137, 856 S.W.2d 309 (1993). After our de novo review of the entire record, we find that claimant has met her burden of proof and accordingly, affirm the opinion of the Administrative Law Judge.
In determining the extent of permanent disability, the Commission may consider, in addition to the evidence of permanent anatomical impairment, claimant's general health, age, education, work experience, attitude, interest in rehabilitation, degree of pain and any other matters reasonably expected to affect her future earning capacity. Ark. Code Ann. § 11-9-522(b) (Repl. 1996); Glass v. Edens, 233 Ark. 786, 346 S.W.2d 685 (1961); Oller v. Champion Parts Rebuilders, Inc., 5 Ark. App. 307, 635 S.W.2d 276 (1982); Arkansas Wood Products v. Atchley, 21 Ark. App. 138, 729 S.W.2d 428 (1987).
Claimant is 39 years old and quit school in the ninth grade, but subsequently obtained her GED. She has worked in a fast food restaurant, as a cashier, building cabinets in mobile homes, delivering automobile parts, and performing general office duties in a salvage yard owned with her ex-husband. Claimant tested water meters weighing up to 80 pounds for the employer at the time of her compensable injury.
In January 1990, claimant sustained admittedly compensable injuries to her lower back and neck as a result of lifting water meters. A cervical MRI scan revealed a central disc protrusion at the C5-6 level with "minimal effacement of the anterior thecal sac." Claimant experienced cervical pain radiating into the shoulders, with numbness in her fingers. Claimant's cervical difficulties have been treated conservatively. Additional diagnostic testing, including a lumbar MRI scan, revealed degenerative disc disease at L4-L5 and L5-S1 with desiccation of the nucleus pulposus at these levels along with a central disc herniation at L4-L5 and a bulging of the disc at L5-S1. In October 1990, claimant underwent a two-level anterior lumbar interbody fusion. However, she developed a pseudoarthrosis at both levels and had to be refused in October 1992.
Claimant's healing period ended on or about May 3, 1993. Additionally, claimant's permanent anatomical impairment has been rated at 19% to the body as a whole and respondents have accepted and paid benefits commensurate therewith.
Subsequent to the compensable injury, claimant tried on various occasions to return to work for the employer. Claimant last worked for the employer in April 1992 and was eventually terminated by the employer in 1993.
Since her termination by the employer, claimant has completed five courses at Texarkana Community College and attempted, unsuccessfully, to work at sedentary positions with two businesses. Claimant explained that she was unable to continue at Texarkana Community College due to her physical difficulties, especially the inability to sit for prolonged periods of time. Claimant also worked at Unique Wholesale on a trial basis. She worked two days a week, four to five hours each day, for a period of approximately two months. She was required to take long trips to pick up wholesale goods for the employer. She eventually had to quit this position due to her physical difficulties. Claimant also attempted, unsuccessfully, to work at a hair salon greeting customers. Claimant does not believe she can perform gainful employment on a regular and consistent basis.
Claimant still has regularly scheduled visits with her treating physician. She experiences pain and must take four prescription medications on a daily basis. Claimant testified that these medications cause drowsiness. She is unable to sit or stand for prolonged periods of time and occasionally experiences swelling in her spine. She can drive for short periods of time. She must clean her house over several days and can perform limited yard work. She wears a "sport's brace" most of the day. Claimant added that she has gone fishing but usually has to fish from the bank.
As noted above, claimant has a permanent anatomical impairment of 19% to the body as a whole. Dr. James D. Cable opined that claimant "is unable to do the activities of a typical worker."
Since claimant's injury occurred in January 1990, the provisions in Act 796 of 1993 abolishing the odd-lot doctrine do not apply to this case.
Therefore, based on the above evidence concerning claimant's loss in earning capacity, we find that claimant has presented aprima facie case that she fall within the odd-lot category, thereby shifting to respondents the burden of going forward with evidence that some kind of suitable work is regularly and continuously available to claimant. M. M. Cohn Co. v. Haile, 267 Ark. 734, 589 S.W.2d 600 (Ark.App. 1979). Claimant does not have to be "utterly helpless" in order to be entitled to benefits for total disability. While claimant may be able to work a small amount, the compensable injury restricts her to "services that are so limited in quality, dependability, or quantity that a reasonably stable market for them does not exist." Hyman v. Farmland Field Mill, 24 Ark. App. 63, 748 S.W.2d 151 (1988). There has been insufficient evidence presented by respondent to overcome claimant's prima facia case.
Claimant has been unable to find suitable work and could not perform, on a regular and continuous basis, the two jobs she tried on a very limited basis.
Jan Owens, with Intercorp, testified that she met with claimant one time and did a job market survey. However, she did not have any contact with claimant's treating physicians concerning claimant's ability to perform suitable employment. Owens asserted that there are a sufficient number of jobs in the Texarkana area which would be compatible with claimant's physical limitations. Owens testified that she obtained the list of "compatible" jobs from The Dictionary of Occupational Titles. Owens testified that she then "contacted employers to see if there were any job openings, which at the time there was not any specific job openings. . . ." Further, Owens acknowledged that she did not tell these employers anything about claimant because she was not doing a job search for claimant. Owens added that she is not sure whether these employers would hire claimant, if she had informed them of claimant's physical limitations.
We find that the evidence indicates that suitable work is not regularly and continuously available to claimant and her "future job prospects are negligible." See, Lewis v. Camelot Hotel, 35 Ark. App. 212, 816 S.W.2d 632 (1991). Since claimant has presented a prima facia case of total disability and respondents have failed to offer sufficient evidence in rebuttal, we find that claimant is permanently and totally disabled.
For the foregoing reasons, we find that claimant has proven by a preponderance of the evidence that she is permanently and totally disabled and the opinion of the Administrative Law Judge is affirmed accordingly. Respondents are directed to comply with the award set forth in 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 opinion of the Administrative Law Judge. For prevailing on this appeal before the Commission, claimant's attorney is hereby awarded an additional attorney's fee in the amount of $250.00.
IT IS SO ORDERED.
DISSENTING OPINION
I respectfully dissent from the majority's opinion finding that claimant is permanently and totally disabled. In my opinion, based upon a de novo review of the record, it is clear that claimant is not permanently and totally disabled. Therefore, I would reverse the decision of the Administrative Law Judge.
Claimant is able to perform gainful employment. She is young, only 38 years old. She has a GED and has taken classes since her injuries at Texarkana Community College. While at college, claimant has made A's and B's. Furthermore, claimant has transferrable skills. She has had various jobs including working as a receptionist and other sedentary occupations. Claimant has worked sporadically since her injury. She continues to drive her motor vehicle and has married. Obviously, claimant is able to return to gainful employment.
Evidence was offered by a rehabilitation specialist that there are jobs in claimant's area which fit her experience and limitations. In my opinion, the aforementioned clearly indicates that claimant is not permanently and totally disabled. Therefore, I respectfully dissent from the majority opinion.
ALICE L. HOLCOMB, Commissioner