Opinion
CLAIM NO. F806278
OPINION FILED OCTOBER 19, 2011
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.
Respondent represented by the HONORABLE MICHAEL RYBURN, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed as modified.
OPINION AND ORDER
The claimant appeals an administrative law judge's opinion filed June 1, 2011. The administrative law judge found that the claimant proved he sustained wage-loss disability in the amount of 16%. After reviewing the entire record de novo, the Full Commission finds that the claimant proved he sustained wage-loss disability in the amount of 30%.
I. HISTORY
Billy Larue, now age 34, testified that he left school in the 11th grade but later obtained a GED. Mr. Larue's testimony indicated that most of his work history involved construction, manual labor, and truck driving. The claimant's testimony indicated that he began working for the respondent-employer in approximately 2006. The claimant testified that his work for the respondents entailed hauling heavy machinery, moving drilling rigs, and hauling large compressors. The claimant testified that he earned $18 an hour from the respondent-employer and that "I usually took home $1,000 a week."
The claimant testified that he sustained an accidental injury in June 2008: "I was hauling heavy machinery. I loaded a big track hoe and turned around to shut the door and fell off the track and fell about 8-foot from the track to the ground." The parties stipulated that the claimant sustained a compensable injury to his right knee and back.
The claimant consulted with Dr. Jeffrey K. Evans on July 22, 2008: "This is a 31-year-old white male with the complaint of right knee pain since falling off a trailer in 6/26/08 at work. He felt a pop and his knee buckled at that time. . . . A MRI was obtained, which showed the small effusion in the right knee, but no internal derangement. . . . X-rays of the right knee show a patella alta, otherwise normal. MRI of the right knee is noted above." Dr. Evans assessed "Right knee patellar tendon rupture. . . . will place him on the schedule for a right patellar tendon repair and he will follow up for surgery."
Dr. Evans' assessment on August 12, 2008 was "Right knee patellar tendon rupture, surgically treated." Dr. Evans reported on September 18, 2008, "The patient returns for follow up of a right patellar tendon repair, now about 6 weeks out from surgery, doing better. He is progressing at physical therapy. He notes low back pain, which occurred at the time of his original injury on 06/21/2008." Dr. Evans assessed "1. Right knee patellar tendon rupture. 2. Low back pain." Dr. Evans' assessment on October 30, 2008 was "1. Right knee patellar tendon rupture, surgically treated. 2. Herniated nucleus pulposus at L5-S1. PLAN: We will get a lumbosacral spine MRI."
The record indicates that Janet Canada, an APN at River Valley Musculoskeletal Center, saw the claimant on November 6, 2008: "Mr. Larue is a 31-year-old Caucasian male that presents to the clinic today for neurosurgical evaluation for low back pain that radiates into the left lateral thigh and left foot that has been constant. These symptoms did occur acutely after a work related injury where he fell seven feet. He did have trauma to the right knee that was more severe and was surgically treated by Dr. Evans. Now that he has recuperated from this, his pain from his lumbar spine has not improved but has become more constant and severe. . . . The patient had a lumbar MRI performed at Prime Medical Center. The MRI revealed degenerative disk disease at L5-S1 with a minimal left paracentral disk protrusion. This does not cause any spinal stenosis or neuroforaminal stenosis, otherwise, a negative lumbar spine MRI." Ms. Canada's impression was "1. Left lumbar radiculopathy. 2. Degenerative disk disease L5-S1. 3. Small left paracentral disk protrusion. . . . We will proceed in scheduling a selective nerve root injection at L4-5, L5-S1 with sedation."
The claimant testified that he was involved in a non-work related accident on January 4, 2009: "We were drilling post holes and I had a coat on that has a string at the bottom to tie it and the string got tangled around the bolt on the PTO shaft." The claimant testified that the injury resulted in amputation of his left arm.
Dr. Robert Fisher noted on January 21, 2009, "Billy is a 31-year-old gentleman referred to our service for epidural steroid injection. He was due to come back for second injection and he had a terrible accident apparently he was in the process of drilling hose (sic) in his property in order to put some steel fence post for his horses and his jacket sleeve became entangled in the auger and pulled off the patient's left arm." Dr. Fisher performed an injection on January 21, 2009.
Dr. Evans' assessment on February 10, 2009 was "Right patellar tendon rupture, surgically treated. PLAN: He is currently at maximum medical improvement for his right knee. There will be no impairment rating generated this case. He may wind up having to have something done from a neurosurgical standpoint for his herniated nucleus pulposus and I have deferred the treatment of that over to Dr. Capocelli. He will follow up on a p.r.n. basis."
The claimant began treating with Dr. James B. Blankenship on February 24, 2009:
The gentleman was injured on June 26, 2008. He was moving a piece of machinery and fell off his track and fell about seven feet and landed on his right side. He had the acute onset of lower back pain and right knee pain. He had patellar dislocation that required surgery towards the end of July. The gentleman's lower back and then subsequently about two days later left anterior thigh pain began to get significantly worse. He did have two ESIs by Dr. Fisher without any significant relief. . . .
He lost his arm earlier this year to an injury, and had significant gait disturbances as the result of his knee dislocation. I do not find anything on his overt MRI that would explain his leg pain. . . .
An MRI of the claimant's lumbar spine was performed on April 3, 2009, with the impression, "L5-S1 disc herniation with an extreme lateral component with probable annular tear." Dr. Blankenship performed surgical procedures on September 9, 2009 including an arthrodesis, resection, and discectomy at L5-S1. The pre-and post-operative diagnosis was "L5-S1 disc herniation on the left with an extreme lateral component with L5 radiculopathy."
Dr. Blankenship noted on April 15, 2010, "Billy states that his pain is a little better than it was on his last visit. He still states that it is significantly better than it was on his preoperative condition. He has continued to take his Lyrica and has continued doing his home exercises. He has been fitted for a prosthesis for his left upper extremity, and he is very excited about that as am I." Dr. Blankenship's impression was "Post-laminectomy syndrome with improving leg pain. RECOMMENDATIONS: He is going to continue with his home exercises, and he is going to call me if he has any problems. I told him with his x-rays looking as good as they do today, it is really not of any benefit to have him come back up. At the one-year postop followup, he needs to call me if he is having any trouble. He agrees with this plan."
Dr. Blankenship provided a Disability Determination on October 21, 2010:
Billy is in for his one-year postop visit. His worker's compensation carrier has requested that I perform a disability examination rate and determine MMI. Billy states that his pain is actually worse that it was on his last visit, but we have been able to get him authorized for his appointment [with] Dr. Cannon and injection. His post-laminectomy pain has gotten worse. We have done a postoperative MRI that showed good neural decompression, and his x-rays that were done today show good early arthrodesis through the disk space. The patient is continuing not to work.
PHYSICAL EXAMINATION: I have reviewed his prior general physical examination and neurological examination. I do not appreciate any changes today.
IMPRESSION: Post-laminectomy syndrome with persistent leg pain that has worsened in the absence of approval for his ESI. I still feel that it is of absolute importance that this be tried to settle this down.
RECOMMENDATIONS: I do feel that he is at MMI. He does qualify for an impairment rating based on table 75, subheading 4C, single-level spinal fusion which would qualify him for a 9 percent impairment to the body as a whole.
He has demonstrated good knowledge of proper lifting techniques.
He can not return to his pre-injury job. I will be happy to look at any work description on down the road to determine whether it is possible for him to do that. Just because I am not going to scheme any more and I feel that we have adequately decompressed his nerve root and he is on his proper home exercise program, that does not mean that he does not need to continue on the medication and will need to have him start having those filled by someone locally. After he has his injection, if it ever gets authorized, by Dr. Cannon he is not doing any better, consideration of referring him in to see Dr. Carl Covey in Little Rock since he lives about as close to Little Rock as here would be reasonable.
The parties stipulated that the claimant reached maximum medical improvement on October 21, 2010, and that the claimant sustained a 9% anatomical impairment rating.
A pre-hearing order was filed on December 16, 2010. The claimant contended that he was "entitled to permanent disability benefits greatly in excess of his impairment and reasonably necessary medical treatment." The respondents contended that the claimant "sustained an injury to his knee and his low back. He has been released on the knee injury. While off on the back injury he lost his left arm in a farm accident. Any additional treatment or disability is due to the non-work related accident." The parties eventually agreed to litigate the issues of wage-loss disability and fees for legal services.
A hearing was held on March 3, 2011. The claimant testified that he received only temporary benefit from Dr. Blankenship's surgery: "I had relief for a little while, but then it went back to hurting. . . . The left leg, from the hip to the knee, it just stays numb like pins and needles. When you touch it, it feels like somebody just stabs you. . . . I can't hardly walk, can't stand for long periods of time, can't lay down for long periods of time." The claimant testified that he had received an injection from Dr. Cannon, which helped "for maybe a day. After it wears off, it's back to the same thing."
The claimant testified that he was physically unable to engage in any kind of employment. The claimant testified on cross-examination that he was able to drive an automobile and did not require modifications due to his amputated left arm. The claimant testified on cross-examination that he still held a commercial driver's license. The claimant testified that he had not sought employment within his physical restrictions.
An administrative law judge filed an opinion on June 1, 2011. The administrative law judge found that the claimant proved he sustained wage-loss disability in the amount of 16%. The claimant appeals to the Full Commission.
II. ADJUDICATION
"Disability" means incapacity because of compensable injury to earn, in the same or other employment, the wages which the employee was receiving at the time of the compensable injury. Ark. Code Ann. § 11-9-102(8) (Repl. 2002). The wage-loss factor is the extent to which a compensable injury has affected the claimant's ability to earn a livelihood. Logan County v. McDonald, 90 Ark. App. 409, 206 S.W.3d 258 (2005). In considering claims for permanent partial disability benefits exceeding the employee's percentage of permanent physical impairment, the Commission may take into account, in addition to the percentage of permanent physical impairment, such factors as the employee's age, education, work experience, and other matters affecting his future earning capacity. Ark. Code Ann. § 11-9-522(b)(1) (Repl. 2002).
An administrative law judge found in the present matter, "2. The claimant has proven that he suffered a loss in wage earning capacity as a result of his compensable back injury in an amount equal to 16 percent to the body as a whole." The Full Commission finds that the claimant proved he sustained wage-loss disability in the amount of 30%. The claimant is age 34 and has a GED with no additional formal education. The claimant's employment history has been primarily in the areas of construction, manual labor, and truck driving. The claimant began working for the respondents in approximately 2006. The claimant drove a truck hauling heavy industrial equipment. The claimant testified that he fell about 8 feet in an accidental injury occurring in June 2008. The parties stipulated that the claimant sustained a compensable injury to his right knee and back.
Dr. Evans subsequently performed a patellar tendon repair to the claimant's right knee. Dr. Evans reported on February 10, 2009 that the claimant had reached maximum medical improvement for his right knee with no impairment rating. The claimant began treating with Dr. Blankenship, who performed surgery to the claimant's lumbar spine in September 2009. Dr. Blankenship reported on October 21, 2010 that the claimant had sustained a 9% anatomical impairment rating for his low back. Dr. Blankenship stated, "He can not return to his pre-injury job. I will be happy to look at any work description on down the road to determine whether it is possible for him to do that." The claimant testified that he suffers from chronic pain and is unable to sit or stand for long periods of time. The claimant testified that he did not benefit from Dr. Blankenship's surgery.
The claimant is only age 34, and although the claimant has only a GED level of education, the claimant's testimony indicated that he was an intelligent person. Dr. Blankenship opined that the claimant can no longer perform his truck driving and manual labor duties for the respondent-employer. However, Dr. Blankenship did not opine that the claimant was totally incapacitated from earning any wages and in fact offered to help the claimant identify appropriate work within the claimant's restrictions. The claimant has not sought work for any employer since 2008 and is drawing Social Security Disability. The 34-year-old claimant states on appeal that he can receive more money from social security than he could "a minimum-wage job." The claimant's demonstrated lack of interest in seeking any gainful employment impedes an assessment of his lack of earning capacity. Logan County, supra.
Based on our de novo review of the entire record, the Full Commission finds that the claimant proved he sustained wage-loss disability in the amount of 30%. The respondents contended at pre-hearing that the claimant was not entitled to any wage-loss disability as a result of the claimant's compensable injury. An administrative law judge found that the claimant had sustained wage-loss disability in the amount of 16%. The Full Commission therefore affirms as modified the administrative law judge's award. We find that the compensable injury to the claimant's back was the major cause of the claimant's 9% anatomical impairment and 30% wage-loss disability. The claimant's attorney is entitled to fees for legal services in accordance with Ark. Code Ann. § 11-9-715(a) (Repl. 2002). For prevailing on appeal to the Full Commission, the claimant's attorney is entitled to an additional fee of five hundred dollars ($500), pursuant to Ark. Code Ann. § 11-9-715(b) (Repl. 2002). IT IS SO ORDERED.
___________________________________ A. WATSON BELL, Chairman
DISSENTING OPINION
I must respectfully dissent from the majority opinion increasing the Administrative Law Judge's award of wage loss disability. Based upon my de novo review of the entire record, without giving the benefit of the doubt to either party, I find that the claimant has failed to prove by a preponderance of the evidence that as a result of his compensable injury he sustained a decrease in his wage earning capacity greater than the 16% awarded by the Administrative Law Judge.
The claimant sustained an admittedly compensable injury to his lower back and right leg on June 26, 2008. Initially, the treatment focused on claimant's left knee for a patellar tendon rupture. Claimant underwent surgery for this injury. After recuperating from this knee injury and surgery, claimant began to receive more treatment for his back injury. On January 4, 2009, while receiving temporary total disability benefits for these injuries, the claimant was drilling post holes to install steel fence posts for his horses when his coat got tangled around the bolt of the PTO shaft ripping is left arm completely off. As a result the claimant's left arm was amputated from ". . . the spine out. There is that much of my collarbone left (indicating). . . . About two inches of my collarbone left. There's very little pec muscle left, but there's nothing else."
Dr. Jeffery K. Evans opined that the claimant did not sustain a permanent impairment rating for his knee injury and that he had reached maximum medical improvement with regard to this injury as of February 10, 2009. The claimant eventually underwent surgery on his spine, resulting in a 9% permanent impairment rating to the body as a whole. Initially, the spinal surgery alleviated some of the claimant's back and leg pain, but he testified at the hearing that the pain returned and he did not consider the surgery to have helped.
The sole issue at the hearing and on appeal is whether the claimant sustained any wage loss disability as a result of his compensable injury. The Administrative Law Judge found that the claimant sustained a 16% decrease in his wage earning capacity. Claimant appealed this finding contending that simply looking at the pre-injury wages and the potential to earn at a minimum wage job after the injury, the mere math justifies an award in excess of 50% wage loss. The majority has found that the claimant sustained a 30% wage loss disability. I cannot agree that the claimant has meet his burden of proof with regard to such a large amount of wage loss as a result of his compensable back injury. (As a scheduled injury, the claimant's leg injury cannot be considered in a determination of wage loss disability.) I do agree that the claimant may now have a decrease in his wage earning capacity of 30 or even 50%, but I cannot find that this loss of earning capacity is the result of his compensable back injury.
The wage loss factor is the extent to which a compensable injury has affected the claimant's ability to earn a livelihood. The Commission is charged with the duty of determining disability. Cross v. Crawford County Memorial Hosp., 54 Ark. App. 130, 923 S.W.2d 886 (1996). In determining wage loss disability, the Commission may take into consideration the worker's age, education, work experience, medical evidence and any other matters which may reasonably be expected to affect the worker's future earning power. Such other matters are motivation, post-injury income, credibility, demeanor, and a multitude of other factors. Glass v. Edens, 233 Ark. 786, 346 S.W.2d 685 (1961);City of Fayetteville v. Guess, 10 Ark. App. 313, 663 S.W.2d 946 (1984). Curry v. Franklin Electric, 32 Ark. App. 168, 798 S.W.2d 130 (1990). A claimant's lack of interest in pursuing employment with his employer and negative attitude in looking for work are impediments to our full assessment of wage loss.
There is not, and has never been, a mathematical formula for assessing wage loss disability. Eckhardt v. Willis Shaw Express, Full Commission Opinion Filed November 12, 1998 ( E603970 E414831). A determination of wage loss disability is not a mathematical formula to be determined by calculation, but an evaluation of several factors, including medical evidence, age, work experience, pre-injury and post-injury wages, education, interest in rehabilitation and attitude. Curry v. JM T Pulpwood, Full Commission Opinion Filed February 21, 1995 ( E201535); Chism v. Jones, 9 Ark. App. 268, 658 S.W.2d 417 (1983); Nicholas v. Hempstead Co. Memorial Hospital, 9 Ark. App. 261, 658 S.W.2d 408; City of Fayetteville v. Guess, 10 Ark. App. 313, 663 S.W.2d 946 (1984). If a mathematical formula were allowed, it would be in every claimant's best interest to neglect to return to work until after a hearing on wage loss disability so that he can compare his average weekly wage at the time of his injury to his complete lack of income. Such a formula would defeat the stated purpose of Act 796 of returning employees to work. Moreover, the amount of wages in and of itself is not a determining factor. Blann v. Harvill-Byrd Electric Co., 249 Ark. 456, 459 S.W.2d 567 (1970);Terrell v. Austin Bridge Co., 10 Ark. App. 1, 660 S.W.2d 941 (1983). Wage loss disability reflects a claimant's wage earning capacity, not the claimant's actual wages earned. This capacity assumes the capacity to earn at the entry level and the ability to advance with training and knowledge. Thus, consideration of entry level earnings, in and of themselves without consideration of the other wage loss factors, provides a skewed perception of one's actual capacity to earn wages. It is this skewed perception upon which the claimant and now the majority rely in assessing the claimant's decrease in his wage earning capacity.
Moreover, A.C.A. § 11-9-102(4)(F)(iii) states:
Under this subdivision (4)(F), benefits shall not be payable for a condition which results from a nonwork-related independent intervening cause following a compensable injury which cause or prolongs disability or a need for treatment. A nonwork-related independent intervening cause does not require negligence or recklessness on the part of a claimant.
Thus, we are charged with determining the wage loss disability resulting from the compensable injury, not the wage loss disability resulting from a post injury nonwork-related independent intervening accident. Griffith v. Medcath, Inc., 2009 Ark. App. 777 (November 18, 2009). Banks v. Bennett Truck Lines, Full Commission Opinion filed August 16, 1996 ( D505485). In Banks, the claimant sustained a compensable back injury. After his injury, he suffered a heart attack and a subsequent back problems unrelated to is compensable injury that resulted in a decrease in his wage earning capacity. Accordingly, the Commission found that the claimant failed to prove entitlement to wage loss disability benefits. As stated by Professor Larsen, "It goes without saying that a mere demonstration of reduction in earnings after the injury is not in itself enough; claimant must show that the reason for the reduction was the injury." Larsen's Workers' Compensation § 81.01[1]. In the present case the claimant has failed to prove by a preponderance of the evidence that he has sustained the degree of wage loss disability awarded by the majority as a result of his compensable injury.
The claimant testified that he is in pain, now after surgery just as he was prior to surgery. As demonstrated by the claimant's ability to oversee and assist in the post hole digging and installation of a steel fence before his tragic amputation accident, the claimant's compensable injury did not impede his capacity to work to any large degree. The majority notes that Dr. Blankenship opined that the claimant can no longer perform truck driving and manual labor duties. However, this opinion was rendered after the claimant's left arm amputation. I agree that after this amputation, the claimant cannot perform the duties of truck driving and manual labor. However, I cannot agree that claimant's compensable injury to his back resulted in this finding. Dr. Blankenship offered to assist the claimant in determining what work would be appropriate within the claimant's restriction, but claimant did not follow up on this offer. When considering the claimant's compensable injury, the record is silent with regard to what restrictions, if any, the claimant has. The claimant testified that he has pain and cannot walk, but no Functional Capacity Evaluation was requested or performed. The claimant has already determined that he "cannot" work in his present state, and he has not made any effort to look for gainful employment. The claimant is not motivated to work, and has no real desire to determine just how much his back injury has affected his wage earning capacity.
Accordingly, when I consider the claimant's back injury, together with his young age, his education, intelligence, work experience, medical records, motivation, and pre-injury wages, I find that the claimant has failed to prove by a preponderance of the evidence that he sustained a 30% wage loss disability.
___________________________________ KAREN H. MCKINNEY, COMMISSIONER
CONCURRING AND DISSENTING OPINION
I must respectfully concur, in part, and dissent, in part, from the majority opinion. After a de novo review of the record, I specifically concur in the award of 30% wage-loss disability. However, as it is my belief that case law requires a higher award, I must respectfully dissent from the majority's failure to award the claimant an additional 20% in wage-loss disability benefits. I would award the claimant a total of 50% wage-loss disability.
Although a strict mathematical formula should not be used to analyze the extent of an injured workers' wage-loss disability, a mathematical analysis of the claimant's post-injury earning capacity as compared to his earnings at the time of his accident certainly is a significant factor in determining wage-loss disability. Ark. Code Ann. § 11-9-102(8) defines disability as the incapacity because of compensable injury to earn, in the same or any other employment, the wages which the employee was receiving at the time of the compensable injury.
Since there is no evidence that the claimant can earn as much money in his post-injury condition as he was earning at the time of his accident, a mathematical analysis of possible earnings is an appropriate factor to consider. In fact, the Court of Appeals, inTaggart v. Mid. Am. Packaging, 2009 Ark. App. 335, 308 S.W. 3d 643, has held that when evidence of pre-injury and post-injury wages is in the record, it cannot be said that substantial evidence supports an award where the wage evidence is not considered.
Since the undisputed testimony is that the claimant's "take home" was $1,000.00 per week, we know that he was actually earning in excess of that amount. Therefore, if we use $1,000.00 as an average weekly wage, that is equivalent to earning $25.00 per hour, for a 40-hour week.
If the claimant managed to get retrained into a job that allowed him to perform clerical duties, and we assume that at some point he could earn as much as $10.00, $11.00, or $12.00 per hour, his earnings would still be reduced by greatly in excess of 50%.
As such, I find that the claimant's earning capacity has been decreased by at least 50% and I would award benefits accordingly.
For the aforementioned reasons, I concur, in part, and dissent, in part.
___________________________________ PHILIP A. HOOD, Commissioner