Opinion
CLAIM NO. D912673
OPINION FILED NOVEMBER 28, 1994
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by BILL W. BRISTOW, Attorney at Law, Jonesboro, Arkansas.
Respondent represented by KEN OLSEN, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Reversed.
OPINION AND ORDER
This matter comes on for review by the Full Commission from the decision of the Administrative Law Judge filed on January 24, 1994 finding that claimant has proven by a preponderance of the credible evidence that she is entitled to an additional 60% permanent partial disability associated with the wage loss.
Claimant sustained a compensable back injury on or about July 23, 1990. Claimant received temporary total disability benefits, medical expenses and respondent has accepted and paid permanent partial disability benefits in the amount of 30% to the body as a whole. Presently, claimant contends that she is permanently and totally disabled. Respondent contends that claimant is not entitled to any additional permanent partial disability benefits beyond those already accepted and paid. A hearing was held and an Administrative Law Judge found that claimant had proven by a preponderance of the credible evidence that she sustained a 20% anatomical impairment rating to the body as a whole as a result of her compensable injury and that when considering claimant's age, work experience, physical condition and all other factors, claimant had sustained an additional 60% wage loss disability to the body as a whole. It is from this determination that respondent has appealed.
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.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 (1983); City of Fayetteville v. Guess, 10 Ark. App. 313, 663 S.W.2d 946 (1984).
When reviewing the factors which may be considered when determining wage loss disability, we are of the opinion that claimant has failed to prove by a preponderance of the credible evidence that she is entitled to an award of permanent disability in excess of the 30% impairment rating accepted and paid by respondent. Therefore, we reverse the decision of the Administrative Law Judge.
We find it significant that claimant has waived her right to rehabilitation or retraining. A waiver of rehabilitation may be considered in any discussion of whether claimant has sustained permanent disability in excess of the permanent anatomical impairment rating. Based upon a review of the record, claimant has not exhibited or displayed a positive attitude about returning to gainful employment. She has not even undergone a physical capacity assessment. Therefore, exactly what her capabilities are is unknown. Claimant has the burden of proving by a preponderance of the credible evidence that she is permanently and totally disabled or that she is entitled to additional permanent partial disability benefits. Without a physical capacity assessment, it is difficult to determine what, if any, additional permanent partial disability benefits should be assessed.
Furthermore, a review of the evidence indicates that claimant seems unmotivated to return to work. Currently, she is receiving social security disability benefits on a monthly basis. Claimant views herself as retired and apparently enjoys being at home with her husband. Her lack of motivation to return to work is reflected in her testimony that she has not returned to respondent seeking employment nor has she spoken with anyone in personnel in regards to returning to work. Additionally, claimant has not sought for or applied for any employment since her work-related incident.
The primary evidence that claimant is entitled to additional permanent partial disability benefits is premised upon claimant's own testimony. Claimant's self-serving testimony is that she considers herself to be unemployable. However, there is no expert testimony to support her opinion. Thus, claimant has failed to prove by a preponderance of the credible evidence that she is unable to return to any gainful employment. In light of the fact that claimant is not of advanced age, is not motivated to return to work, has refused vocational rehabilitation or retraining, has made no effort to return to any gainful employment, and, by her own testimony, considers herself retired, we find that claimant is not entitled to any permanent partial disability benefits beyond those accepted and paid by respondent. Therefore, we reverse the decision of the Administrative Law Judge.
IT IS SO ORDERED.
Commissioner Humphrey dissents.