Opinion
CLAIM NOS. E113239 E317577
ORDER FILED OCTOBER 5, 1999
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE EDDIE H. WALKER, JR., Attorney at Law, Fort Smith, Arkansas.
Respondents No. 1 represented by the HONORABLE ROBERT HORNBERGER, Attorney at Law, Fort Smith, Arkansas.
Respondent No. 2 represented by the HONORABLE JUDY RUDD, Attorney at Law, Little Rock, Arkansas.
OPINION AND ORDER
[2] This matter comes before the Full Commission on remand from the Arkansas Court of Appeals. In our prior decision filed on June 11, 1998, we found that the claimant proved by a preponderance of the evidence that she is entitled to a 1% anatomical impairment, and we found that the claimant sustained a 2% impairment to her wage earning capacity as a result of her compensable injury. We also found that the Second Injury Fund has no liability in this case. In an opinion delivered on May 12, 1999, the Court of Appeals reversed the Full Commission's finding that the Second Injury Fund has no liability in this case. Specifically, the Court indicated that the anatomical impairment from the claimant's 1991 injury and its recurrences, her pre-existing degenerative disease, and her pre-existing respiratory condition resulted in her current disability status by all the medical evidence. The Court remanded this case for a redetermination of the claimant's permanent disability benefits under the law as of 1991, including the "odd lot" doctrine.I. Anatomical Impairment Benefits
Injured workers bear the burden of proving that they are entitled to an award for a permanent physical impairment. Therefore, when considering claims for permanent physical impairments, the Commission must impartially weigh all of the evidence in the record to determine whether the preponderance of the evidence establishes that the worker sustained a permanent physical impairment as a result of a compensable injury. Physical impairments occur when an anatomical, physiological, or psychological abnormality limits the ability of the worker to effectively use part of the body or the body as a whole. Consequently, an injured worker must prove that the work-related injury resulted in, or psychological abnormality which limits the ability of the worker to effectively use part of the body or the body as a whole. Therefore, in considering such claims, the Commission must first determine whether the evidence shows the presence of an abnormality which could reasonably be expected to produce the permanent physical impairment alleged by the injured worker.
With regard to this determination, Ark. Code Ann. § 11-9-704(c)(1) (1987) provides that "[a]ny determination of the existence or extent of physical impairment shall be supported by objective and measurable physical or mental findings." The Arkansas Court of Appeals has found that a finding is objective if it is based on observable phenomena or it indicates a symptom or condition perceived as a sign of an underlying abnormality by someone other than the person afflicted. Keller v. L. A. Darling Fixtures, 40 Ark. App. 94, 845 S.W.2d 15 (1992); Reeder v. Rheem Manufacturing, 38 Ark. App. 248, 832 S.W.2d 505 (1992);Taco Bell v. Finley, 38 Ark. App. 11, 826 S.W.2d 213 (1992). As discussed by the Court, objective findings are not limited to those that can be seen or ascertained by touch. Keller,supra. With regard to measurable findings, the Court has noted that measurable has been defined to mean "great enough to be worth consideration." Keller, supra (quoting Webster's Third New International Dictionary (Unabridged) (1976)). In addition, the Court has recognized that "measurable findings may involve the extent, degree, dimension, or quantity of the physical condition." Keller, supra. According to the Court, findings do not have to be exact to be measurable, and physicians are not "confined to any specific chart or guideline in making their evaluation of the existence or extent of physical impairment." Keller, supra.
The Court has also found that findings may satisfy the statutory requirements of Ark. Code Ann. § 11-9-704(c)(1) even though there is a subjective component involved. Keller,supra; Reeder, supra; Taco Bell, supra. Furthermore, the Court has found that Ark. Code Ann. § 11-9-704(c)(1) does not prohibit the Commission from considering other factors, even if purely subjective, so long as the record contains objective and measurable findings to support the Commission's ultimate decision. Keller, supra; Taco Bell, supra. In fact, the Court has found that Ark. Code Ann. § 11-9-704(c)(1) "precludes an award for permanent disability only when it would be based solely on subjective findings." Keller, supra (quoting Reeder, supra) (emphasis in original).
The existence and extent of physical impairment must be established with medical evidence. The Commission has the authority and the duty to weigh medical evidence to determine its medical soundness, and we have the authority to accept or reject medical evidence. Reeder, supra; Mack v. Tyson Foods, Inc., 28 Ark. App. 229, 771 S.W.2d 794 (1989); Wasson v. Losey, 11 Ark. App. 302, 669 S.W.2d 516 (1984); Farmers Insurance Co. Buchheit, 21 Ark. App. 7, 727 S.W.2d 391 (1987). Likewise, the Commission is entitled to examine the basis for a physician's opinion, like that of any other expert, in deciding the weight to which that opinion is entitled. Reeder, supra. However, as with any evidence, we can not arbitrarily disregard the testimony of any witness. Reeder, supra; Wade,supra.
In summary, when considering whether an injured worker is entitled to compensation for a permanent physical impairment, we must impartially weigh all of the evidence in the record and determine whether a preponderance of the evidence establishes the claimant's entitlement to an award. In doing so, Ark. Code Ann. § 11-9-704(c)(1) requires that we first consider whether sufficient objective and measurable findings show the presence of an anatomical physiological, or psychological abnormality which could reasonably be expected to produce the physical impairment alleged by the injured employee. Allegations about the intensity and persistence of pain or other symptoms may be considered only if such findings show the presence of an abnormality which could reasonably be expected to produce the pain or other symptoms alleged. Paula Reed v. Jefferson Regional Medical Center, Full Workers' Compensation Commission, Aug. 16, 1993 (Claim No. E018666); Chanley Pieri v. McCarty Motors, Full Workers' Compensation Commission, May 10, 1993 (Claim No. E106790).
In the present case, claimant sustained two non-work related back injuries, the first in 1987 and the second in 1989. With both of these incidents, claimant described an injury feeling a "tear" in her back. As a result of these incidents claimant suffered from back and leg pain. The incident in 1989 occurred while claimant was lifting a couch. She was hospitalized for a week and was held off work for approximately three to four months. After each of these non-work incidents, claimant returned to work, although she continued to have back pain for which she took medication. In 1991, claimant sustained a work-related injury while she was pulling a cart. Again, claimant received medical treatment for this injury and returned to work. Claimant's work resulted in two recurrences of her back injury as was determined by our previous opinion of October 22, 1996. The record reflects claimant last worked for respondent on June 10, 1993, and has not sought work since.
After each of claimant's injuries, claimant underwent a CT scan. The 1987 CT scan was unremarkable. The CT scan following the 1989 lifting incident at home revealed degenerative disk disease with slight bulges at L3-L4, and L4-L5 and a disk bulge at L5-S1. Claimant's CT scan report in 1991 following claimant's compensable injury was strikingly similar to the 1989 CT scan report. The CT scan in August of 1993 following claimant's two recurrences was described as having no significant differences from the 1991 CT scan.
The record reflects that claimant was evaluated by Dr. Steven Heim on August 12, 1993. Dr. Heim had the benefit of reviewing claimant's post injury 1991 CT scan which he compared to the CT scan he ordered in August of 1993. In his deposition, Dr. Heim testified that the degenerative changes in claimant's spine are to be expected of a person claimant's age. He also explained that the slight bulges at L3-4 and L4-5 are compatible with the degenerative changes. However, in Dr. Heim's opinion the disk bulge at L5-S1 was more than likely related to a traumatic event. Dr. Heim testified that the lifting incident at home which resulted in back and leg pain would certainly be characterized as a traumatic event which could result in a disk bulge at the L5-S1 level.
Dr. Heim assigned the claimant a 6% physical impairment rating based upon claimant's overall back condition which included the degenerative changes and bulges. In his deposition, Dr. Heim answered affirmatively when asked if there were no significant differences between the 1989 and 1991 CT scans and if it would be fair to conclude that the abnormalities found in the 1991 scan existed in 1989. Dr. Heim went on to testify that if claimant's condition in 1989 was the same as her condition in 1991 and 1993, claimant's work which aggravated her back could be temporary contributions as opposed to permanent contributions to any insult already existing in claimant's back. When asked, "is there any way to know whether or not in May of `91 she temporarily or permanently contributed to her overall back condition?" Dr. Heim stated, "Not really. You can get some indication by comparing sequential CT scans, but the differences are going to be very subtle."
Since the Court of Appeals has found the Second Injury Fund has liability in this case, apportionment of the claimant's disability as between the various parties would appear to be controlled in part by Ark. Code Ann. § 11-9-525 (1987), and the Court of Appeals' interpretation of that statute in Weaver v. Tyson Foods, 31 Ark. App. 147, 790 S.W.2d 442 (1990). Ark. Code Ann. § 11-9-525(b)(5) states:
(5) If the previous disability or impairment, whether from compensable injury or otherwise, and the last injury together result in permanent total disability, the employer at the time of the last injury shall be liable only for the actual anatomical impairment resulting from the last injury considered alone and of itself. [Emphasis added].
The Court of Appeals described the underlying purpose of the Second Injury Fund statute as follows in Weaver, supra:
The underlying purpose of the Second Injury Fund statute is to limit the employer's liability to the amount of disability or impairment suffered by the employee during his employment with that employer, and to thereby encourage hiring of the handicapped. [citations omitted]. When it is determined that through the combination of a pre-existing condition and a current compensable injury the claimant sustained a disability greater than would have resulted from either of them alone, the statute provides that the claimant shall be fully compensated for his current disability. But the statute does not provide that the Second Injury Fund shall compensate the claimant for his pre-existing condition. There are several obvious reasons for this. If the pre-existing condition was the result of a compensable injury, the claimant has presumably already been fully compensated for it. But if the pre-existing condition was from a non-work-related injury, a congenital defect or disease process, it is not covered by the workers' compensation law and neither the employer nor the Second Injury Fund is liable. To hold otherwise would make workers' compensation general disability insurance. [Underline ours; italics from the original].
As discussed above, sequential CT scans from before and after the claimant's 1991 injury indicates anatomical abnormalities in the claimant's back which pre-existed the claimant's 1991 injury. As discussed in our prior opinion, the only expert medical evidence in this case comes from the claimant's treating physician, Dr. Heim.
Dr. Heim assigned the claimant a 6% overall permanent anatomical impairment rating to her back on August 20, 1993, stating:
I have reviewed Ms. Ellison physically and have obtained a new CT scan. Her disc disease at L5-S1 has not worsened from that identified previously and she has some mild degenerative disease. I would rate her at no more than a six (6%) disability to the body as a whole due to her degenerative changes and minimal and very minimal disc.
During a deposition taken on March 16, 1994, Dr. Heim opined as follows regarding how to apportion the claimant's 6% impairment rating between her pre-existing degenerative disc disease and her work-related injury:
Q. Now, I was going to stop, but I understand that you cannot say absolutely that that is the case; but based upon your clinical judgment and your evaluation of Ms. Ellison, is it likely that it is a contributing factor? I know that you cannot say 100%.
A. With the trauma that has been relayed to me and knowing the condition of her back, if she has injured her back on the date that you mentioned, this several times in `91 and `92 and was taken off work in `93, I think that it is likely that if she is incurring ongoing trauma that it has contributed at least 1% to her back.
Based on Dr. Heim's written opinion and deposition testimony, we found in our prior opinion that the greater weight of the evidence establishes that only 1% of the claimant's anatomical impairment rating to the body as a whole is attributable to her work-related injuries and recurrences in 1991, 1992, and 1993. With regard to this finding the Court stated:
Regarding the Commission's determination that Ellison is entitled to only 1% anatomical impairment based on Dr. Heim's statement that if she has "ongoing trauma that it has contributed to at least 1% to her back," this case is governed by workers' compensation law as of 1991, the date of the compensable injury for which appellant seeks permanent disability benefits. Thus, Ark. Code Ann. § 11-9-522 (1987) applies. That statute and case law pertinent to it such as Bates v. Frost Loggins Co., 38 Ark. App. 36, 827 S.W.2d 664 (1992), and Lockeby v. Massey Pulpwood, Inc., 35 Ark. App. 108, 812 S.W.2d 700 (1991), show that although a workers' compensation claimant must prove a causal connection between the work-related accident and the later disabling injury, it is not essential that the causal relationship between the accident and the disability be established by medical evidence, nor is it necessary that employment activities be the sole cause of a worker's injury in order to receive compensation benefits. By focusing on Dr. Heim's statement regarding the extent that "ongoing trauma" from the 1991 employment injury and its recurrences contributed to appellant's back condition, the Commission resorted to Act 796 of 1993 analysis based on Ark. Code Ann. § 11-9-102(F) (1987) which states, in pertinent part, as follows:
(ii)(a) Permanent benefits shall be awarded only upon a determination that the compensable injury was the major cause of the disability or impairment. (b) If any compensable injury combines with a pre-existing disease or condition or the natural process of aging to cause or prolong disability or a need for treatment, permanent benefits shall be payable for the resultant condition only if the compensable injury is the major cause of the permanent disability or need for treatment.
The Commission did not refer to § 11-9-102(F)(ii)(a) and (b) in its opinion; however, its decision regarding Ellison's permanent impairment demonstrates that Act 796 reasoning was employed in deciding her impairment. Under the law in 1991 when Ellison was injured, it was not necessary that employment activities be the "major cause" for permanent disability.
For the following reasons, we find that, under the law in effect in 1991, Respondent No. 1 is liable for benefits for a 1% anatomical impairment attributable to the claimant's 1991 injury and subsequent recurrences, and that neither Respondent No. 1 or Respondent No. 2 is liable for benefits for the remainder (5%) of the claimant's anatomical impairment in her back.
As the Court of Appeals explained in Conway Convalescent Center v. Murphree, 266 Ark. 985 (Ark.App. 1979), a case that did not involve potential Second Injury Fund liability:
When an industrial injury precipitates a disability from a latent prior condition, such as heart disease, cancer, back disease and the like, the entire disability is compensable. McDaniel v. Hilyard Drilling Co., 233 Ark. 142, 343 S.W.2d 416 (1961); Wilson Hargett Constr. Co. v. Holmes, 235 Ark. 698, 361 S.W.2d 634 (1962); Finkbeiner, Inc. v. Flowers, 251 Ark. 241, 471 S.W.2d 772 (1971).
The Court has also stated that "an injury is latent until its substantial character becomes known or until the employee knows or should be reasonably expected to be aware of the full extent and nature of her injury." Purolator Courier v. Chancey, 40 Ark. App. 1, 6-7, 841 S.W.2d 159, 162 (1992).
In the present case, we find that evidence fails to establish that the claimant's degenerative back condition was "latent" prior to her 1991 injury. To the contrary, as discussed above, the claimant sustained two back injuries prior to 1991, and her degenerative back condition with disk bulges at various bends of her lumbar spine were identified in a CT scan following the 1989 lifting incident at home. The claimant was hospitalized in 1989 with complaints of low-back pain and right leg pain. At various times before 1991, the claimant was also having left leg pain.
Our finding that the claimant's degenerative back condition was not latent prior to 1991 is also consistent with the Court's conclusion that the Second Injury Fund is liable for wage loss associated with the combined effects of the claimant's pre-existing degenerative disease and her pre-existing respiratory disease and the impairment for her 1991 injury. In this regard, under the law that existed in 1991, the Second Injury Fund would not be liable for wage loss associated with the claimant's pre-existing degenerative disease if that condition had, in fact, been latent. See, generally, Second Injury Fund v. Jones River Corp., 53 Ark. App. 204, 920 S.W.2d 869 (1996); Ark. Code Ann. § 11-9-525(a)(3).
Having concluded that the claimant's degenerative back condition was not latent at the time of her 1991 injury, we also find that the greater weight of the evidence in the record establishes that the claimant's degenerative back condition which pre-existed her 1991 injury caused a 5% anatomical impairment rating to the body as a whole for which neither respondent has liability, and we find that the claimant's 1991 injury and recurrences caused an additional 1% anatomical impairment rating to the body as a whole for which Respondent No. 1 is liable.
In reaching this decision, we again point out that Dr. Heim's deposition testimony is the only expert medical opinion addressing this issue, and Dr. Heim has opined that the claimant has sustained a 6% anatomical impairment, with at least 1% anatomical impairment attributable her 1991 injury and subsequent recurrences. Although the Commission is not bound by medical testimony, it may not arbitrarily disregard any witness' testimony and is entitled to review the basis for a doctor's opinion Rheeder v. Rheem Mfg. Co., 38 Ark. App. 248, 832 S.W.2d 505 (1992). Under the law that existed in 1991, the Commission was not bound by the AMA Guides to the Evaluation of Permanent Impairment in determining impairment ratings. However, the Court has stated on at least one occasion that the bases for medical impairment ratings were generally found in the AMA Guides. See, Foxx v. American Transportation, 54 Ark. App. 115, 924 S.W.2d 814 (1996). Accord Rheeder v. Rheem, supra.
The claimant has the burden of establishing her entitlement to the benefits at issue. In the present case, the claimant's only argument to the Commission in her prior brief was as follows:
Although the respondents argued at the hearing that the 6% impairment rating that Dr. Heim assessed is not attributable to the claimant's job-related injury, Dr. Heim's testimony clearly indicates that in his opinion some of the 6% permanent impairment is due to the job-related injury (4/24/97 Hearing Transcript, Claimant's Exhibit No. 1, pp. 35-38). Additionally, Dr. Heim testified that the claimant had objective evidence of injury (4/24/97 Hearing Transcript, Claimant's Exhibit No. 1, pp. 32-33).
Moreover, there does not appear to be any serious dispute between the parties that the claimant has sustained a 6% anatomical impairment to her back as assessed by Dr. Heim. The difficulty in the present case is in determining how much of that 6% anatomical impairment pre-existed the claimant's 1991 injury, and how much of the 6% is attributable to the 1991 injury, particularly in light of Dr. Heim's opinion that at least 1% is attributable to the 1991 injury. We previously interpreted Dr. Heim's opinion as establishing that the claimant sustained a 1% impairment attributable to her 1991 injury and recurrences. Moreover, while Dr. Heim may or may not have considered the AMA Guides in rendering his opinion, we note the current Guides would accord exactly a 1% additional impairment for the 1991 aggravation of the claimant's L5-S1 disk, in excess of a pre-existing disk-related impairment at other levels. See AMA Guides 4th Ed. (Table 75 II.F., p. 3/113).
In the present case, and for the reasons discussed herein applying the law as it existed in 1991, we again find that respondent No. 1 is liable for a 1% anatomical impairment attributable to the claimant's 1991 injury, and we find that neither respondent No. 1 or respondent No. 2 is liable for the claimant's 5% anatomical impairment for her non-latent degenerative back condition which pre-existed her 1991 injury.
2. Wage Loss Benefits.
When determining the degree of permanent disability sustained by an injured worker, the Commission must consider the degree to which the worker's future wage earning capacity is impaired. In addition to medical evidence demonstrating the degree to which the worker's anatomical disabilities impair his earning capacity, the Commission must also consider other factors, 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). When it becomes evident that the worker's underlying condition has become stable and that no further treatment will improve the condition, the disability is deemed to be permanent. If the employee is totally incapacitated from earning a livelihood at that time, he is entitled to compensation for permanent and total disability.Minor v. Poinsett Lumber Manufacturing Co., 235 Ark. 195, 357 S.W.2d 504 (1962).
Likewise, an employee who is injured to the extent that he can perform services that are so limited in quality, dependability, or quantity that a reasonably stable market for them does not exist may be classified as totally disabled under the odd-lot doctrine. Lewis v. Camelot Hotel, 35 Ark. App. 212, 816 S.W.2d 632 (1991). The odd-lot doctrine recognizes that the obvious severity of some injuries may combine with other factors to preclude the employee from obtaining employment in any reasonably stable market, although the employee is not altogether incapacitated from work. Id. In this regard, the factors which may combine with the obvious severity of the employee's injury to place him in the odd-lot category are the employee's mental capacity, education, training and age. Id. If the claimant makes a prima facie showing that he falls in the odd-lot category, the respondents have the burden of going forward with evidence showing that "some kind of suitable work is regularly and continuously available to the claimant." Id.
In considering the factors which may affect an employee's future earning capacity, we may consider the claimant's motivation to return to work, since a lack of interest or a negative attitude impedes our assessment of the claimant's loss of earning capacity. 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). Likewise, although a claimant's failure to participate in rehabilitation does not bar his claim, the failure may impede a full assessment of his wage earning loss by the Commission. Nicholas v. Hempstead County Memorial Hospital, 9 Ark. App. 261, 658 S.W.2d 408 (1983).
In the present case, the record indicates that the claimant was 61 years old at the time of the hearing. She has a 10th grade education and the majority of her work experience involves labor intensive activity in an industrial setting. The claimant testified at the April 24, 1997, hearing that she experiences constant pain in her back which does not allow her to move around or do anything. The claimant testified that she cannot sit for long periods of time and she cannot be up for long periods of time. She testified that her pain gets so severe that she just sits awhile and moves around a little bit. Dr. Heim evaluated the claimant on February 6, 1997, and opined that she is probably not a good candidate for vigorous activity that requires a lot of bending, stooping and lifting. However, he expressed the opinion that the claimant could do a sedentary job. As discussed, the medical evidence establishes that the claimant's work-related injury has aggravated a degenerated disc at the L5-S1 level of the claimant's spine. Notably, Dr. Harford, the company physician, opined as early as December 7, 1992, that the claimant was probably going to need to find another line of work; however, the claimant continued to work for the respondent until June 30, 1993, when she was no longer allowed to continue to work for the respondent by the company physician.
As regards the claimant's respiratory condition, the claimant testified that she treated with Dr. Edds in 1986 for bronchitis and pneumonia. The claimant testified that she occasionally had respiratory problems until approximately two to three years before the 1997 hearing, but that her respiratory problems had gotten worse in the past two to three years. The claimant testified that she missed some time from work from pneumonia and bronchitis before her 1991 injury. As regards her breathing condition at the time of the 1997 hearing, the claimant testified "I just don't have much breath. I mean I'm real short of breath. Just any little thing and I'm out of air." The claimant testified that she felt there were some jobs she could do with her respiratory problems, but that she did not know of any job she could do with her respiratory problem combined with her back problem.
The claimant testified that, considering only her back problems without her respiratory problems, she felt there were some jobs she could do if she could alternate between sitting and standing. When questioned by her attorney as to how her respiratory problem would cause her not to be able to perform one of these jobs, the claimant responded, "Well, I don't know, with it and the back together, I don't know how they would mix together. I'm not quite sure about it."
As regards her lung treatment, the claimant testified that she had been given an inhaler a long time ago, but that she did not take any more until the last few months before the hearing. The claimant testified that she had also been on antibiotics at times. The claimant testified that when she worked, she was not a heavy smoker because employees were only allowed to smoke at lunchtime and on breaks. The claimant testified that on her days off, two packs of cigarettes would last approximately three days. The claimant testified that she currently smokes four or five cigarettes per day. The claimant testified that she was informed not to quit smoking altogether but to cut down gradually. The claimant testified that she cannot tell that her respiratory condition has improved by smoking only four or five cigarettes per day, and that she, in fact, felt that her condition keeps worsening. The claimant testified that she was told that it would help if she quit smoking.
The claimant testified that, with her respiratory problems, she could sit and use her hands in a job, but that if she were required to be moving around or anything strenuous, she could not do so because of her respiratory condition or her back.
We find that the record fails to establish by a preponderance of the credible evidence that the claimant is totally disabled or that she has established a prima facie case that she fits within the odd lot category. In reaching this conclusion, we initially note that the claimant has failed to present any evidence from a physician or from a vocational counselor indicating that the claimant is currently totally incapacitated from working or indicating that the claimant is injured to such an extent that any employment services she can perform are so limited in quality, dependability, or quantity that a reasonably stable market does not exist for her services. To the contrary, the only physician to examine the claimant since 1993 was Dr. Heim. Dr. Heim indicated on February 6, 1997, that the claimant's back-related symptoms were slightly improved from 1993, and Dr. Heim opined that the claimant could have a sedentary job. Dr. Heim did not schedule any follow-up appointments, but indicated that he would see the claimant on an as-needed basis if her symptoms worsened.
With regard to the claimant's respiratory condition, and her testimony that her condition had worsened over the last two to three years, and more so over the last two to three months, the claimant has failed to present any medical evidence to corroborate her testimony that her respiratory condition had, in fact, recently deteriorated. As the Court noted, Dr. Sills' records indicate that he gave the claimant a note on October 11, 1993, stating that she was unable to work due to her severe COPD and back pain. However, the claimant subsequently underwent pulmonary function testing on January 10, 1994, performed by Dr. David Nichols. His interpretation was mild obstructive pulmonary impairment with a moderate degree of functional impairment. In light of Dr. Nichols' conclusion in 1994 that the claimant had a mild obstructive pulmonary impairment with a moderate degree of functional impairment, and in light of Dr. Heim's assessment in 1997 that the claimant could return to sedentary work, we are not persuaded by the claimant's testimony that no employer would hire her in her condition. The claimant has acknowledged that she has not sought any employment from any employer (other than from the respondent) since she last worked in 1993. In light of the medical reports of Dr. Nichols and Dr. Heim, we are not persuaded by the claimant's testimony that she has presented a prima facie case that she fits within the odd lot category.
After considering the claimant's age, education, work experience, and all other relevant factors, we find that the claimant has experienced an 8% impairment to her wage earning capacity from a combination of her functional impairment from her respiratory condition, her degenerative disk disease, and her 1991 work-related injuries and recurrences.
Therefore, after conducting a de novo review of the entire record, and for the reasons discussed herein, we find that Respondent No. 1 is liable for a 1% anatomical impairment rating to the body as a whole. In addition, we find that the Second Injury Fund is liable for wage loss of 8% rated to the body as a whole.
IT IS SO ORDERED.
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CONCURRING AND DISSENTING OPINION
[46] I concur in part and respectfully dissent in part from the majority opinion in this case. I concur in the finding that the SIF has liability. However, I cannot agree that claimant is only entitled to an anatomical impairment rating of 1% to the whole body for her compensable back injury. Moreover, I disagree with the finding of the majority that claimant's wage-loss entitlement totals 8%. In my opinion, application of the Odd-Lot Doctrine is proper in this case, and claimant has demonstrated that she is permanently and totally disabled.With respect to the degree of claimant's anatomical impairment, I find that claimant is entitled to the entire 6% rating. As I interpret Dr. Heim's deposition testimony, he did not apportion the rating. He simply opined that at least 1% of claimant's anatomical impairment could be attributed to her work-related injury. Under these facts, I cannot agree that claimant is limited to a rating of 1%.
Claimant also maintains that she is permanently and totally disabled as a result of the combined effects of her compensable back injury (and recurrences thereof) and the pre-existing Chronic Obstructive Pulmonary Disease (COPD) from which she suffers. I agree. The evidence shows that Dr. Sills opined in 1993 that when considering these conditions together, claimant is incapable of working. In June of 1993, the company physician barred claimant from continued employment. In February of 1997, Dr. Heim opined that claimant should not engage in work requiring a lot of bending, stooping and lifting.
Claimant is sixty-one years of age. She has a tenth grade education. Her employment history is limited to factory work. She testified that her back pain is constant. Claimant stated that she must shift positions frequently. Moreover, she stated that her respiratory problems are severe. As a result, claimant is frequently short of breath.
In order to apply the Odd-Lot Doctrine, claimant need not demonstrate helplessness. Rather, she must show that gainful employment is not available on a regular and reliable basis. Considering all appropriate factors, I find that claimant is permanently and totally disabled by virtue of the Odd-Lot Doctrine.
Based on the foregoing, I concur in part and respectfully dissent in part.
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