Opinion
CLAIM NO. E910061
OPINION FILED FEBRUARY 26, 2001
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by HONORABLE BRAD A. CAZORT, Attorney at Law, Clinton, Arkansas.
Respondents represented by HONORABLE GUY A. WADE, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed as Modified.
OPINION AND ORDER
The respondent appeals a decision by the Administrative Law Judge finding that the respondents are responsible for paying for a wheelchair accessible van with hand controls for the claimant. Based upon our de novo review of the record, we find that the decision of the Administrative Law Judge must be affirmed as modified.
The claimant sustained an admittedly compensable injury on August 20, 1999, when he was injured in a motor vehicle accident. As a result of his injuries, the claimant had both of his legs amputated. The claimant is currently fitted with a prosthesis for both legs. However, he primarily uses a wheelchair.
Claimant's legs were amputated above the right knee and below the left knee and he continues to receive treatment, including regularly scheduled physical therapy. Although claimant can stand with the use of prostheses, he has little to no balance without the use of assisted devices and can only walk ten to fifteen feet with the use of a walker. Claimant is, for most intents and purposes, wheelchair bound and has fallen on at least two different occasions while trying to use his walker to reach his car.
The respondents paid to have the claimant's 1986 Lincoln Continental outfitted with a wheelchair rack and hand controls. The claimant is able to drive the modified car with hand controls, but has difficulty doing so with his prosthesis on. The claimant contends that he is unable to drive the vehicle because he cannot put the wheelchair on the rack, then walk to the driver's side using a walker. In order to drive the vehicle, the claimant must remove his prosthesis. The claimant stated that he has fallen twice trying to get from the back of the vehicle, using his walker, to the driver's side in order to drive the car. The claimant is requesting a wheelchair accessible hand-controlled van. The respondent contends they are only responsible for paying for the cost of converting a van to wheelchair accessibility and hand controls. The respondents state that they are not responsible for paying for the new vehicle. The respondents have already paid to have the claimant's car modified with hand controls and they seek a credit for the amount already paid.
Ark. Code Ann. § 11-9-508(a), as modified by Act 796 of 1993, now provides:
The employer shall promptly provide for an injured employee such medical, surgical, hospital, chiropractic, optometric, podiatric, and nursing services and medicine, crutches, ambulatory devices, artificial limbs, eye glasses, contact lenses, hearing aids, and other apparatus as may be reasonably necessary in connection with the injury received by the employee.
There are no Arkansas cases that have dealt with the specific issue of whether the respondents are responsible for the payment of a wheelchair accessible hand-controlled van. Therefore, the Commission is without controlling precedent as to whether the other apparatus delineated in Ark. Code Ann. § 11-9-508(a) includes a wheelchair accessible van.
The only case that we have that is even close to being on point is Pine Bluff Parks and Recreation v. Porter, 6 Ark. App. 154, 639 S.W.2d 363 (1982). In this case, the Arkansas Court of Appeals noted a prior decision differentiated between in-home nursing services and attendant care tasks attributable to housekeeping and personal matters, which would be excluded. The Court determined, with regard to in-home apparatus, that:
By analogy, we conclude that the same rule of apportionment between the value of the apparatus and other services required to be furnished under Section 81-1311 [present Ark. Code Ann. § 11-9-508] and the total costs of all services furnished shall apply in the circumstances of this case.
In the present case, we find that a preponderance of the evidence establishes that a van with wheelchair accessibility and hand controls is reasonably necessary in connection with the amputation injury received by the claimant. In this regard, claimant testified that since the accident, he has been unable to become independent of his wife because he cannot drive himself to his doctor's appointments and daily physical therapy appointments. Claimant was not thus restricted in his physical activities, including driving, prior to his injury. Claimant's wife also testified that since the accident, they have been unable to pay for mounting bills and that she has been unable to return to work because claimant needs her to transport him. Claimant's wife was two months from completing training as a medical assistant at the time of the accident and has also been unable to return to school because of the constant care she provides for her husband.
Although claimant's 1986 Lincoln is equipped with hand-controlled devices and a wheelchair tow, claimant is simply unable to operate the vehicle independently which would require him to lift the wheelchair onto the tow and then walk around the car to get into the vehicle to operate it. This process would then have to be performed in reverse order after claimant reached his destination. This process is extremely difficult and dangerous for the claimant because he is unable to use his walker without the possibility of falling.
In finding that a hand-controlled wheelchair accessible van is reasonably necessary, we are also persuaded by the February 25, 2000, correspondence from Frank Snell of Prosthetic Orthotic Laboratory who noted that in the case of the claimant, a bilateral amputee, hand controls are a must if claimant is to safely operate a motor vehicle:
His right amputation is an extremely long thigh disarticulation and with the prosthetic knee joint distal to that, the length required between the seat and dash must be excessively long. The other complication is the left knee below amputation, which has only 30 degrees of motion. This prevents his being able to bend his knee back far enough to place his front foot flat on the floor. Both of these special situations will require some creative solutions to allow Randy to front a steering wheel with hand controls and allow him the independence we all take for granted. I suggest that a specialist who has extensive knowledge of custom vans or something similar be contacted for a reliable option (CX. I, E)
Dr. Baskin of Baptist Health Rehabilitation Institute, upon evaluation of the claimant on April 17, 2000, also found that claimant could not safely drive a non-hand-controlled operated vehicle and that claimant is unable to load or unload his heavy wheelchair into a car. It also was noted that a regular or standard automobile cannot be modified sufficiently to accommodate claimant's needs in connection with the injury stemming from the August 20, 1999, compensable injury.
Having found that a hand-controlled wheelchair accessible van is reasonably necessary in connection with the claimant's work-related amputation injury, the next issue is how the cost for that apparatus must be apportioned between basic transportation expenses (for which the respondents are not liable), and the excess apportioned expenses associated with the claimant's injury (for which the respondents are liable).
In the present case, the respondent asserts that the respondent should not be liable for the total cost of the purchase of an automobile for modifications, but rather that the respondents should only be responsible for the modification of a vehicle the claimant provides. Again, this is a case of first impression in Arkansas, and there appears to be a split of authority in other states. See generally Larson's Workers' Compensation, Desk Ed., Section 94.03. The respondents in the present case advise us that in Pennsylvania, Colorado, South Carolina, Maryland, New York, and North Carolina, the purchase price of a motor vehicle is not reimbursable. In Arizona, Iowa, Florida, Maine, and Mississippi, the employer may be required to reimburse the claimant for the vehicle purchase price. In North Dakota and West Virginia, the employer may be required to reimburse the claimant for the difference between the purchase price of a van and the purchase price of a regular automobile.
The respondents also discuss several cases from other jurisdictions dealing with this particular issue. In the case ofEx Parte City of Guntersville, 32 Ala. B. Rep. 2485, 728 So.2d 611 (Ala. 1998) a policeman was shot in the back rendering him a paraplegic and confined to a wheelchair. The City agreed to pay the costs of installing a wheelchair lift in a van, but denied responsibility for the full purchase price of the vehicle. The claimant presented two letters from physicians at the Department of Rehabilitative Medicine which indicated that a van was necessary to facilitate transportation due to the claimant's injury. The trial court awarded the policeman the full purchase price of the van. However, the Alabama Supreme Court overruled this finding and found that a motor vehicle did not come within the term "other apparatus". (It is of note that the statute in Arkansas also uses the term "other apparatus".) The basis for the Alabama Supreme Court's determination was that their Workers' Compensation Act provided for transportation costs to and from medical and rehabilitative treatment and that the Legislature did not intend for language to cover general transportation costs. The Court found that the van provided no other medical purpose, but it was used to enhance the claimant's independent functioning.
According to the respondents, the Colorado Court of Appeals has also dealt with this issue in Bogue v. SDI Corp., 931 P.2d 477 (1996) (Colo.Ct.App. 1996). In Bogue, the Colorado Court of Appeals had to determine whether the claimant was entitled to a wheelchair accessible van. The Court found that the van was not a medical aid "reasonably necessary" for treatment of the injury. The Colorado Court stated that the van "does nothing to care for or remedy the quadriplegia. The Colorado Court concluded that the wheelchair accessible van was not a compensable medical apparatus.
In the present case, we find that a preponderance of the evidence establishes that the apparatus at issue which is reasonably necessary in connection with the claimant's injury involves not only the vehicle modifications at issue, but also the van itself. We reach this conclusion because, but for the claimant's amputation injuries, the claimant's transportation needs would be served by the family's 1986 Lincoln. However, because of the claimant's amputation injury, a special design of vehicle (a van) is required.
Under these circumstances, we are not persuaded by the respondents' assertion that the respondents should not be liable for the vehicle itself, but only for the vehicle modifications. The respondents' argument would, of course, have merit if the issue were modification of the family's 1986 Lincoln. However, as discussed, the respondents have already modified the claimant's 1986 Lincoln, and there is no serious doubt that modifying the Lincoln was a mistake and ineffective for its intended purpose. The preponderance of the evidence indicates that a van is the only vehicle capable of effective modification. Consequently, we find that a van is reasonably necessary in connection with the claimant's injury to replace the Lincoln for transportation.
Moreover, we also find that the respondents' argument would lead to absurd results for the following reasons. Three estimates in the record place the price of a year 2000 van at between $26,600 and $39,681 for an unmodified vehicle. However, the claimant and his wife credibly testified that they have essentially no assets and little income to pay their current bills. The claimant has credibly testified that there is no conceivable way that the claimant and his wife could afford to purchase a van for modification. Consequently, any statutory interpretation to the effect that the respondents are liable for modifications to a van, but not for providing the van itself, is equivalent to no award at all. The interpretation proposed by the respondents is therefore illogical, and statutes in Arkansas are not to be so strictly construed that the interpretation leads to absurd results or defeats the plain purpose of the law. See Green v. Mills, 339 Ark. 200, 4 S.W.3d 493 (1999); Weiss v. Central Flying Service, Inc., 326 Ark. 685, 934 S.W.2d 211 (1996); Haase v. Starnes, 323 Ark. 263, 915 S.W.2d 675 (1996); Rosario v. State, 319 Ark. 764, 984 S.W.2d 888 (1995); Thomas v. State, 315 Ark. 79, 864 S.W.2d 835 (1993); Ragland v. Alpha Aviation, Inc., 285 Ark. 182, 686 S.W.2d 391 (1985); Hice v. State, 268 Ark. 57, 593 S.W.2d 169 (1980).
Finally, there was some suggestion at the hearing that perhaps a new van would be less expensive to modify than a previously-owned van. However, these estimates were offered by the claimant, and the estimates are, at best, unclear as to whether each involved a new or used vehicle. At any rate, we modify the Administrative Law Judge's decision to the extent that we find the respondents liable for the cost of a suitable van (not necessarily a new van) and for the costs of van modifications. We also find that the respondents are entitled to a credit against liability equal to the present value of the claimant's 1986 Lincoln.
Therefore, after conducting a de novo review of the entire record, we find that the Administrative Law Judge's decision must be affirmed as modified.
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 in part 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 (Repl. 1996).
IT IS SO ORDERED.
________________________________ ELDON F. COFFMAN, Chairman
________________________________ MIKE WILSON, Commissioner
I respectfully concur in part and dissent in part from the majority opinion finding that the respondents are responsible for paying for a wheelchair accessible van with hand controls for the claimant. Specifically, I concur in the majority finding that the respondents are liable for modifications to the van and the finding that the respondents are entitled to a credit against liability equal to the present value of the claimant's modified 1985 Lincoln.
In my opinion, applying the analogy as cited by the majority from the case of Pine Bluff Parks and Recreation v. Porter, 6 Ark. App. 154, 639 S.W.2d 363 (1982) to the present fact situations, the respondent should not be liable for the total cost of the purchase of an automobile for modifications, but rather the respondents should only be responsible for the modification of a vehicle the claimant provides. The majority also cites the case of Ex Parte City of Guntersville, 32 Ala. B. Rep. 2485, 728 So.2d 611 (Ala. 1998). This case is instructive as it weakens the majority's findings. Our Workers' Compensation law, as does Alabama law, requires payment of mileage for medical and rehabilitation transportation. Providing for the actual vehicle for transportation above and beyond medical mileage would result, in my opinion, to an unwarranted expansion of the Arkansas Workers' Compensation Act. Under the requirements of the Act, the Commission is required to strictly construe the Act. Under strict construction, the van could not be considered "other apparatus". The sole purpose for the expenses is to enhance the claimant's independent functioning. Therefore, it is not considered to be a medical apparatus that the respondents are required to provide. It is also of note that the Supreme Court of Alabama was required to liberally construe the Alabama Workers' Compensation Act and found that the term "other apparatus" did not require the provision of a motor vehicle to be modified.
Further, the majority cites the case of Bogue v. SDI Corp., 931 P.2d 477 (1996) (Colo.Ct.App. 1996), wherein the Court concluded that the wheelchair accessible van was not a compensable medical apparatus. In my opinion, this case also supports a finding that the respondents are not responsible for buying the claimant a wheelchair-accessible hand-controlled van.
Therefore, after considering all the evidence and the Alabama and Colorado cases, it is my opinion that the respondents are not responsible for buying the claimant a wheelchair accessible hand-controlled van. The majority is allowing the claimant's financial plight to play a decisive role in its decision to award the claimant the cost of the van. I can only assume that if the claimant were financially secure such that he could purchase a van on his own, the majority would only award the claimant the cost of modifying such. In my opinion, the majority has reached an absurd result.
Therefore, I respectfully concur in part and dissent in part from the majority opinion.
_______________________________ MIKE WILSON, Commissioner
I, too, must respectfully concur in part and dissent in part from the majority opinion. While I agree that the respondent is liable for a wheelchair accessible van and for modifications to that van, I dissent from an award granting the respondent any credit for previous modifications to claimant's 1986 Lincoln.
I find that claimant should not be penalized for respondent's error. Prior to any modifications to claimant's family vehicle, respondent had access to two medical reports noting that claimant's compensable injuries were such that if claimant were to operate a motor vehicle, he would require specialized transportation.
Prosthetic Orthotic Laboratory reported that for claimant, a bilateral amputee, hand controls are a must if claimant is to safely operate a motor vehicle:
His right amputation is an extremely long thigh disarticulation and with the prosthetic knee joint distal to that, the length required between the seat and dash must be excessively long. The other complication is the left knee below amputation, which has only 30 degrees of motion. This prevents his being able to bend his knee back far enough to place his front foot flat on the floor. Both of these special situations will require some creative solutions to allow Randy to front steering wheel with hand controls and allow him the independence we all take for granted. I suggest that a specialist who has extensive knowledge of custom vans or something similar be contacted for a reliable option (CX. I, E)
Also, Baptist Health Rehabilitation Institute reported that claimant could not safely drive a non-hand-controlled operated vehicle and that claimant is unable to load or unload his heavy wheelchair into a car. It also was noted that a regular or standard automobile could not be modified sufficiently to accommodate claimant's needs.
Nevertheless, respondent refused claimant's initial request for a hand-controlled wheelchair accessible van, deciding instead to modify (unsuccessfully) claimant's 1986 Lincoln car on May 25, 2000. They now request credit for their mistake made after they had full access to the February and April 2000 reports from specialists in the areas of prosthetics and occupational therapy. The fact that respondent's installation of hand-controlled devices in claimant's 1986 Lincoln did not confer, and in fact could not confer, any benefit whatsoever to the claimant is no surprise to the respondent and credit for their error should not be allowed.
Based on the foregoing reasons, I respectfully concur in part and dissent in part.
______________________________ Shelby W. Turner, Commissioner