Opinion
CLAIM NO. E815420.
ORDER FILED OCTOBER 19, 2000.
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE TOM THOMPSON, Attorney at Law, Batesville, Arkansas.
Respondent represented by the HONORABLE MICHAEL J. EMERSON, Attorney at Law, Little Rock, Arkansas.
Decision of the Administrative Law Judge: Affirmed as modified.
OPINION AND ORDER
The respondents appeal an opinion and order filed by the administrative law judge on May 17, 2000. In that opinion and order, the administrative law judge found that the claimant sustained a 28% impairment to his wage-earning capacity in excess of his 7% permanent anatomical impairment established by the medical evidence. After conducting a de novo review of the entire record, we find that the claimant sustained a 14% impairment to his wage-earning capacity in excess of his 7% permanent anatomical impairment established by the medical evidence. Therefore, we find that the administrative law judge's decision must be affirmed as modified.
The claimant sustained an injury to that portion of his body which is not scheduled under the Act. Therefore, the claimant's entitlement to permanent disability benefits is controlled by Ark. Code Ann. § 11-9-522. Permanent disability compensation is paid where the permanent effects of a work-related injury incapacitate the worker from earning the wages which he was receiving at the time of the injury. When making a determination of the degree of permanent disability sustained by an injured worker with an unscheduled injury, the Commission must consider medical evidence demonstrating the degree to which the worker's anatomical disabilities impair his earning capacity, as well as other factors such as the worker's age, education, work experience, and other matters which may reasonably be expected to affect the worker's future earning capacity. Such other matters are motivation, post-injury income, credibility, and demeanor. 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). 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 considering the factors which may affect an employee's future earning capacity, the Commission may consider the claimant's motivation to return to work, since a lack of interest or negative attitude impedes the Commission's 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). In addition, a worker's failure to participate in rehabilitation does not bar his claim, but 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 claimant, a certified welder, commenced employment with respondents in 1997. He testified that he worked on the bridge crew. The claimant stated that his work entailed heavy lifting on a daily basis. On November 18, 1998, the claimant sustained an admittedly compensable injury. The claimant testified that the injury occurred as he poured concrete for a four-lane bridge. The claimant described the mechanics of the injury as follows:
At about 8:00 o'clock in the morning we had probably half of it, little over half of it poured [the concrete] when the false-work gave way, collapsed, and dropped us about, between 15 and 20 feet. I landed in a creek with steel and the concrete and got on the bank. Bounced off a I-bean and wiggled out of the concrete and got on the bank.
The medical evidence showed that the claimant was evaluated by Dr. Gregory Ricca on March 4, 1999. His report of the examination showed that he reviewed an MRI of the lumbar spine done on February 5, 1999. He stated that the MRI demonstrated "a broad-based HNP at L4-5. . .with mild compression of the right L5 nerve root. On the T2 sagittal image, there is increased signal in the annulus of L4-5 centrally consistent with a fresh injury and edema." Dr. Ricca opined that claimant's complaints were consistent with the objective findings. He recommended "aggressive good quality non-surgical measures including regular use of an anti-inflammatory and aggressive therapy."
The claimant was also evaluated by Dr. Ron Williams on July 27, 1999. Based on the absence of radicular symptoms, Dr. Williams opined that the claimant was not a surgical candidate. However, Dr. Williams recommended a work evaluation to ascertain whether the claimant could safely return to work.
The claimant testified that he attempted to return to work for respondents during the summer of 1999. He stated that after working the months of June and July, he returned to the doctor in August of 1999, because of the degree of back pain he was experiencing. The claimant testified that he last consulted Dr. Williams on November 19, 1999, and he was instructed to return to light duty.
The claimant is thirty-four years old. He is a high school graduate. His employment history is comprised entirely of heavy construction work. Billy Wayne Cox, the claimant's supervisor, substantiated the claimant's testimony with respect to the heavy nature of bridge construction. The claimant is unable to return to work for respondents based on the limited amount of light duty available. This testimony was corroborated by Mr. Cox. Mr. Cox explained that he needs crew members who are capable of performing all aspects of the job. The record showed that the claimant made a good faith effort to return to work. However, the claimant was forced to discontinue working for the respondents.
The claimant testified that he has earned as much as $15-$20 per hour performing road construction. He testified that he has been unable to find work at his former wage. The claimant stated that he discovered an entry hourly wage of just $8.50.
After considering the claimant's age, education, work experience, and all other relevant factors, we find that the claimant has sustained a 14% impairment to his wage-earning capacity in excess of the 7% permanent anatomical impairment assigned by Dr. Williams. In reducing the claimant's assigned wage-loss disability to 14%, we point out that the claimant has sustained a non-surgical back injury, and that his latest therapy reports limit him to carrying 30 to 40 pounds, occasionally lifting 50 pounds from floor level or from a 12-inch height, and frequent lifting up to 23 pounds. While the claimant will not likely return to heavy construction with these limitations, we also note that the claimant is relatively young and holds a welding certification.
Therefore, after conducting a de novo review of the entire record, and for the reasons discussed herein, we find that the claimant has sustained a 14% impairment to his wage-earning capacity. 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.
_______________________________ ELDON F. COFFMAN, Chairman
Commissioner Humphrey concurs in part and dissents in part.
I concur in the finding that in addition to claimant's permanent anatomical impairment of 7%, claimant sustained at least a 14% impairment of his wage-earning capacity as a result of his compensable injury. However, I do so in order to preserve claimant's award of wage-loss benefits in view of the court's decision in S S Construction, Inc. v. Coplin, 65 Ark. App. 251, 986 S.W.2d 132 (1999). In Coplin, the Court of Appeals held that the Commission lacks the authority to issue an opinion without a majority vote. Nevertheless, it is my opinion that the evidence supports a finding that claimant is entitled to wage-loss benefits totaling 28% as a result of his compensable injury.
Based on the foregoing, I concur in part and dissent in part.
_________________________________ PAT WEST HUMPHREY, Commissioner
Commissioner Wilson dissents.
I respectfully dissent from the majority's opinion awarding the claimant a 14% loss in wage earning capacity. Based upon myde novo review of the record, I find that the claimant is not entitled to any wage loss disability benefits.
The claimant sustained an injury to that portion of his body which is not scheduled under the Act. Therefore, the claimant's entitlement to permanent disability benefits is controlled by Ark. Code Ann. § 11-9-522. Permanent disability compensation is paid where the permanent effects of a work-related injury incapacitate the worker from earning the wages which he was receiving at the time of the injury. When making a determination of the degree of permanent disability sustained by an injured worker with an unscheduled injury, the Commission must consider medical evidence demonstrating the degree to which the worker's anatomical disabilities impair his earning capacity, as well as other factors such as the worker's age, education, work experience, and other matters which may reasonably be expected to affect the workers' future earning capacity. Such other matters are motivation, post-injury income, credibility, and demeanor.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). 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 considering the factors which may affect an employee's future earning capacity, the Commission may consider the claimant's motivation to return to work, since a lack of interest or negative attitude impedes the Commission's assessment of the claimant's loss of earning capacity. City 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. In addition, a workers' failure to participate in rehabilitation does not bar his claim, but 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).
Although the claimant has been employed in the construction industry doing heavy lifting on a daily basis for many years, the evidence shows that he is a certified welder and he has one of the top certifications that can be obtained. He admitted at the hearing that he is physically able to do work as a welder, so long as he doesn't have to "stand on my head or anything like that, yeah, or bend over constantly."
Considering the claimant's age, education and all other relevant factors, I find that the claimant has failed to prove he is entitled to any wage loss disability benefits. The claimant is a young man with the highest welding certification one can earn. He has not actively pursued a job since working for the respondent employer. He has merely "talked" with some people. Clearly, he lacks motivation to return to work.
Therefore, for the reasons set forth herein, I dissent from the majority's award of 14% in wage loss disability benefits.
_____________________________ MIKE WILSON, Commissioner