Opinion
CLAIM NO. E400710
OPINION FILED APRIL 17, 1997
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE KENNETH E. BUCKNER, Attorney at Law, Pine Bluff, Arkansas.
Respondents represented by the HONORABLE MICHAEL J. DENNIS, Attorney at Law, Pine Bluff, Arkansas.
Decision of Administrative Law Judge: Affirmed as modified.
OPINION AND ORDER
The respondents appeal and the claimant cross-appeals an opinion and order filed by the administrative law judge on April 5, 1996. In that opinion and order, the administrative law judge found that the claimant sustained a seventy-eight percent (78%) permanent partial disability to the body as a whole of this seventy-eight percent (78%), eight percent (8%) represents the permanent physical impairment rating assigned by the claimant's treating physician, and seventy percent (70%) represents additional loss of wage earning capacity.
After conducting a de novo review of the entire record, we find that the claimant proved by a preponderance of the evidence that she sustained a fifty percent (50%) loss in wage earning capacity in excess of the eight percent (8%) impairment rating assigned by her treating physician. Therefore, we find that the administrative law judge's decision must be affirmed as modified.
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).
In the present case, the claimant sustained an admittedly compensable injury on January 17, 1994, when she fell on broken floor tiles. The claimant was diagnosed with a fracture of the left femoral neck, and Dr. John Lytle performed an endoprosthetic replacement of the claimant's left hip. The claimant was 60 years old at the time of the injury.
Dr. Lytle ascertained that the claimant reached maximum medical improvement on August 9, 1994, and Dr. Lytle assigned the claimant a 20% impairment to the lower extremity (equivalent to an 8% impairment rated to the body as a whole) for her hip injury. Dr. Lytle also assigned permanent restrictions of no lifting greater than 40 pounds, and no stooping, climbing, squatting, bending, or prolonged walking.
The claimant testified that she has a 10th grade education, and she therefore does not have a high school diploma. The claimant received a brief period of training in office skills in the 1950's, and she performed office work for approximately 6 years during the 1950's. After leaving the work force from 1956 through 1961, the claimant was employed in department store sales for approximately 5 1/2 years. From 1966 until her compensable injury in January of 1994, the claimant has been employed in a factory environment.
The claimant testified that she worked many different positions while employed by the respondent. However, in January of 1995, the respondent employer ascertained that the permanent restrictions imposed by Dr. Lytle precluded the claimant from performing any job at the respondent's facility.
With regard to her current physical abilities and limitations the claimant testified that she is capable of operating a lawn mower to mow her yard, which requires approximately 45 minutes. However, the claimant testified that she finds it necessary to elevate her leg for approximately 30 minutes to one hour if she remains on her feet continuously for approximately one hour to an hour and fifteen minutes. In addition, the claimant testified that she experiences difficulties with balance when she ambulates, and the claimant testified that she requires the use of a cane when using stairs.
With regard to her post-injury employment activities, the claimant testified that she was employed part-time for a period in early 1995 cleaning at her church. Initially the claimant only assisted her daughter; however, when the claimant's daughter accepted other full time employment, the claimant assumed full responsibility for cleaning duties for approximately one month. The claimant testified that her duties required climbing stairs, walking on concrete floors, and working on her feet for extended periods. The claimant testified that when she engaged in these activities, she was at times unable to function the following day.
Subsequent to the claimant's 1995 employment at her church, Ms. Judy Davis, an employment consultant with Crawford Health Care Management, identified employment opportunities which Ms. Davis considered to be within the claimant's physical restrictions imposed by Dr. Lytle. Ms. Davis testified that she communicated to the claimant several job openings identified through the local newspaper. Ms. Davis acknowledged that she did not contact the potential employers to identify the physical requirements of any particular position, but instead left this type of investigation up to the claimant in the application process.
The claimant testified that she investigated the physical requirements of the job openings identified by Ms. Davis but ascertained that the identified positions were not within her physical limitations. The claimant has not pursued any post-injury employment in addition to the cleaning services position at her church held for approximately one month. In this regard, Ms. Davis testified that the claimant indicated during their 1995 interview that she felt she could not return to work.
In short, the preponderance of the evidence establishes that the claimant's physical limitations probably preclude the claimant's return to employment on a factory floor-type setting. In addition, the claimant's restrictions preclude the claimant from performing janitorial services as she attempted at church. However, Dr. Lytle's restrictions and the claimant's limitations do not preclude the claimant from pursuing employment in a sedentary environment if she chooses to pursue additional employment in a sedentary-type environment within her physical restrictions. Consequently, after considering the claimant's age, education, work experience, physical limitations, and all other evidence in the record, we find that the claimant sustained a 50% loss in earning capacity in excess of the 8% permanent anatomical impairment established by the medical evidence.
In reaching our decision, we note that the claimant's injury occurred after July 1, 1993, and that this claim is subject to the provision of Act 796 of 1993. In this regard, the respondents assert that Act 796 mandates a finding that the claimant's left femoral neck injury is a "scheduled injury" to the lower extremity.
However, Act 796 did not amend the relevant provisions of Ark. Code Ann. § 11-9-521 (a)(3) which classifies a "scheduled injury" to the lower extremity as any injury occurring at the "leg amputated at the knee, or between the knee and the hip." In the present case, the claimant's injury required a replacement surgery of the femoral neck within the hip joint, and an injury within the hip joint is apportionable to the body as a whole. See Milburn v. Concrete Fabricators, Inc., 18 Ark. App. 23, 709 S.W.2d 822 (1986); Taylor v. Pfeiffer Plumbing and Heating Co., 18 Ark. App. 23, 709 S.W.2d 822 (1986). Consequently, we find that the claimant's hip injury is properly apportionable to the body as a whole, with impairment to wage earning capacity a proper factor to consider in determining an award of permanent disability compensation. See, Id.
We also note that the respondents assert on appeal that the claimant's actions concerning possible employment should preclude an award of wage loss disability in the present case. In this regard, Act 796 of 1993 amended the Arkansas Workers' Compensation Law to provide at Ark. Code Ann. § 11-9-505 (b)(3) (Repl. 1996):
The employee shall not be required to enter any program of vocational rehabilitation against his consent; however, no employee who waives rehabilitation or refuses to participate in or cooperate for reasonable cause with either an offered program of rehabilitation or job assistance shall be entitled to permanent partial disability benefits in excess of the percentage of permanent physical impairment established by objective physical findings.
In the present case, we find that the preponderance of the evidence fails to indicate that the claimant unreasonably refused to participate in an offered program of job placement assistance. In this regard, Ms. Davis' testimony establishes that Ms. Davis only performed a newspaper search of job opportunities in the claimant's area. Ms. Davis acknowledged that she did not contact potential employers to ascertain the actual physical requirements of any job opening in the claimant's area. Likewise Ms. Davis testified that she did not contact Dr. Lytle to ascertain whether any of the available positions were within the claimant's physical restrictions. On the other hand, the claimant testified that she investigated the job openings identified by Ms. Davis and ascertained that the positions were not within her physical limitations. Consequently, based on the evidence presented into the record, we find that the greater weight of the evidence fails to indicate that the claimant unreasonably refused to participate in an offered program of job placement assistance.
Therefore, after conducting a de novo review of the entire record, and for the reasons discussed herein we find that the claimant proved by a preponderance of the evidence that she sustained a fifty percent (50%) loss in wage earning capacity in excess of the eight percent (8%) impairment rating assigned by her treating physician. Therefore, 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.
CONCURRING OPINION
I concur with the majority opinion finding that claimant's hip injury is an injury to the body as a whole. Although respondent argues that a strict interpretation of the scheduled injury statute brings the claimant's injury within the definition of scheduled injury, I cannot reach such conclusion. Had the legislature changed the word "between" to the word "from", claimant's injury, would, in my opinion, be a scheduled injury. Since the legislature did not change this terminology, I cannot find that claimant's injury is a scheduled injury even giving the statute its strict interpretation.
I also concur with the majority finding that claimant did not sustain a seventy-eight percent (78%) permanent partial disability to the body as a whole and is only entitled to a fifty percent (50%) loss in wage earning capacity.
MIKE WILSON, Commissioner