Opinion
CLAIM NO. E500630
OPINION FILED JULY 3, 1996
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 represented by the HONORABLE CAROL LOCKARD WORLEY, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed.
OPINION AND ORDER
The claimant appeals an opinion and order filed by the administrative law judge on October 11, 1995. In that opinion and order, the administrative law judge found that the claimant sustained a compensable injury. However, the administrative law judge found that the claimant failed to prove by a preponderance of the evidence that he is entitled to temporary disability compensation. In addition, the administrative law judge found that the claimant failed to prove by a preponderance of the evidence that he sustained permanent physical impairment or other permanent disability. After a de novo review of the entire record, we find that the administrative law judge's decision must be affirmed.
The claimant was employed by the respondent employer as a long haul trucker operating a tractor-trailer rig. On November 21, 1994, the claimant was checking the oil in his truck's engine at a truck stop in Alma, Arkansas, when the hood of the truck came down pinning the claimant's head and shoulder underneath. The claimant pulled himself from underneath the hood, then went into the truck stop and called his employer to report the incident. The claimant then drove his rig to Fort Smith, located his wife at a Fort Smith department store, and presented to the emergency room at St. Edwards Mercy Medical Center in Fort Smith.
The claimant presented to St. Edwards with a small laceration to the top of his head and reported pain from the top of his head extending down into his right shoulder, as well as in his left knee. The claimant's tentative diagnosis included scalp contusion, cervical strain, and left knee strain. The claimant was released to arrange follow-up care through his employer.
The claimant testified that he presented to the company doctor on one occasion, but subsequently received authorization to seek treatment from Dr. Douglas Parker, an orthopedist, who previously followed the claimant for prior work-related injuries sustained while working for previous employers. The claimant testified that his prior work-related injuries include a knee injury in 1987, a lower back injury in 1990, and an injury to the lower back and neck in 1992. With regard to the 1992 neck injury, Dr. Parker ultimately assigned the claimant an anatomical impairment rating of 5% to the body as a whole based on a cervical disc protrusion identified by MRI at the C5-6 level.
Following the November 21, 1994, accident, the claimant first presented to Dr. Parker on December 16, 1994. Although the claimant's knee problems had apparently resolved, Dr. Parker identified a positive impingement syndrome affecting the upper right extremity based on severe pain and decreased sensation on the lateral aspect of the right shoulder in the C6 nerve distribution of the right hand. A cervical MRI performed on December 21, 1994, indicated cervical disc protrusion and degenerative changes at several levels. In addition, Dr. Parker identified a tear of the glenoid labrum and performed a one-third acromioplasty of the right shoulder on December 29, 1994. In a subsequent follow-up report dated April 19, 1995, Dr. Parker assigned the claimant a 15% permanent physical impairment to the body as a whole related to his right shoulder and a 10% permanent physical impairment to the body as a whole related to the condition of his neck. In addition, Dr. Parker indicated that the claimant would not be capable of returning to any work requiring heavy lifting, pushing, pulling or repetitive bending.
The claimant testified that he did not return to work following the November 21, 1994, incident until several months after receiving the December 29, 1994, shoulder procedure. At that time, the claimant went to work operating a dump truck, which according to the claimant, pays lower wages than he received as a truck driver for the respondent employer. However, the claimant's testimony regarding his current wage rate ($7.00 per hour) and his total weekly wages during good weather ($500 — $550 per week) indicate that the claimant routinely works 60-65 hours per week as a dump truck operator when the weather is good.
Since the claimant contends that he sustained an injury after July 1, 1993, this claim is controlled by the Arkansas Workers' Compensation Law as amended by Act 796 of 1993. Consequently, to establish the compensability of the claim, the claimant must satisfy the requirement for establishing one of the five categories of compensable injuries recognized by the amended law, including the requirements common to all categories of injuries. See, Jerry D. Reed v. Con Agra Frozen Foods, Full Workers' Compensation Commission, opinion filed Feb. 2, 1995 (Claim No. E317744). Since the claimant in the present claim alleges that he sustained an injury as a result of a specific incident which is identifiable by time and place of occurrence, the requirements of Ark. Code Ann. § 11-9-102(5)(A)(i) (Repl. 1996) are controlling, and the following requirements must be satisfied:
(1) proof by a preponderance of the evidence of an injury arising out of and in the course of his employment (see, Ark. Code Ann. § 11-9-102(5)(A)(i) (Repl. 1996); Ark. Code Ann. § 11-9-102(5)(E)(i) (Repl. 1996); see also, Ark. Code Ann. § 11-9-401(a)(1) (Repl. 1996));
(2) proof by a preponderance of the evidence that the injury caused internal or external physical harm to the body which required medical services or resulted in disability or death (see, Ark. Code Ann. § 11-9-102(5)(A)(i) (Repl. 1996));
(3) medical evidence supported by objective findings, as defined in Ark. Code Ann. § 11-9-102(16), establishing the injury (see, Ark. Code Ann. § 11-9-102(5)(D) (Repl. 1996));
(4) proof by a preponderance of the evidence that the injury was caused by a specific incident and is identifiable by time and place of occurrence (see, Ark. Code Ann. § 11-9-102(5)(A)(i) (Repl. 1996)).
If the claimant fails to establish by a preponderance of the evidence any of the requirements for establishing the compensability of the injury alleged, he fails to establish the compensability of the claim, and compensation must be denied. Reed, supra.
In the present claim, we find that the claimant has proven by a preponderance of the evidence each of the requirements necessary to establish a compensable injury under the amended law. In this regard, the preponderance of the evidence establishes that the claimant sustained an injury as the result of a specific incident that occurred on November 21, 1994, which arose out of and in the course of his employment. Although no one saw the incident, Noreen Lewis, the truck stop attendant working on November 21, 1994, testified that she observed a gash and blood on the claimant's hat as he walked in the door that day. The claimant's wife also testified that she observed scratches on the claimant's head, and that the claimant indicated to her that he had hurt his right shoulder on the truck. In addition, objective medical evidence indicates that the claimant was treated for a small laceration to the head on November 21, 1994. Similarly, Dr. Parker observed sufficient internal injury in the right shoulder during arthroscopy on December 29, 1994, to proceed with a one-third acromioplasty, and MRI indicated abnormalities in the cervical spine.
However, we find that the claimant failed to prove by a preponderance of the evidence that he is entitled to compensation for a permanent physical impairment or other permanent disability. In this regard, Act 796 did not change the requirement that an injured worker must prove by a preponderance of the evidence that he is entitled to an award for 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.Crow v. Weyerhaeuser Co., 46 Ark. App. 295, 880 S.W.2d 320 (1994). Physical impairments occur when an anatomical, physiological, or psychological abnormality permanently 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 a physical 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. Crow, supra.
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." Act 796 of 1993 amended the Arkansas Workers' Compensation Law to define objective finding as "those findings which cannot come under the voluntary control of the patient." Ark. Code Ann. § 11-9-102(16) (Repl. 1996). In addition, as amended by Act 796, medical providers, administrative law judges, and this Commission cannot consider complaints of pain when determining physical or anatomical impairment. Id. Furthermore, the amended law provides that, "for the purpose of making physical or anatomical impairment ratings to the spine, straight-leg-raising tests or range-of-motion tests shall not be considered objective findings."
In the present claim, we note that on April 19, 1995, Dr. Parker assigned the claimant anatomical impairment ratings related to his shoulder and neck conditions. Dr. Parker's April 19, 1995, note states, in part:
[The claimant] has been going along and his permanent physical impairment rated to the right shoulder is 15% and therefore to the body as a whole. The patient has had anterior one-third acromioplasty and still has some residual weakness compared to the left side and approximately 15° decreased ROM in the shoulder. In general however, he has had a good result. . . . In addition, the patient also had a 10% impairment to the cervical spine for herniated nucleus pulposus. From time to time, the patient has 25% decreased ROM in the neck. DTR's are 2+ and symmetrical. Patient has objective evidence of cervical herniated disc. The patient at this time will be doing a home program. Cannot return to a job which requires heavy lifting, pushing, pulling, repetitive bending. In the future he may need some conservative care but is not now nor expected to be in the future a surgical candidate any more than he has been.
However, contrary to the physical limitations indicated by Dr. Parker, the claimant testified that he now has full range of motion in his right shoulder, and that he is not currently under any physical restrictions. The claimant testified that he experiences shoulder pain on occasion, but that his pain is "usually nothing I can't deal with". In addition, the claimant indicated that his neck is much better, although "not 100 percent".
In short, we find that the physical limitations indicated by Dr. Parker during his impairment evaluation are contrary to the claimant's testimony that he does not currently experience physical limitations other than minimal residual pain. Therefore, we find that Dr. Parker's impairment assessments are entitled to little weight. Moreover, we find that a preponderance of the evidence establishes that the claimant did not sustain any permanent physical impairment as a result of his compensable injury.
Even if we were to find that the preponderance of the evidence indicates that the claimant has sustained a permanent physical impairment to his neck, which we do not find, we would find that the claimant failed to establish that his compensable injury was the major cause of any permanent physical impairment to his neck. Therefore, we would find that the claimant failed to establish one of the requirements necessary under the amended law to establish entitlement to permanent disability benefits related to his neck problems. In this regard, Act 796 amended the Arkansas Workers' Compensation Law to provide the following:
Permanent benefits shall be awarded only upon a determination that the compensable injury was the major cause of the disability or impairment. If any compensable injury combines with a preexisting disease or condition or the natural process of aging to cause to 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.
Ark. Code Ann. § 11-9-102(5)(F)(ii) (Repl. 1996). Considering the context in which the terms "permanent benefits" and "impairment" are used in this provision, the statute clearly imposes a requirement on a claimant seeking compensation for a permanent physical impairment to show that the compensable injury was the major cause of the impairment. "Major cause" is defined by the amended law as follows:
"Major cause" means more than fifty percent (50%) of the cause. A finding of major cause shall be established according to the preponderance of the evidence.
Ark. Code Ann. § 11-9-102(14) (Repl. 1996).
In the present claim, the claimant has previously been assigned a 5% permanent impairment to the whole body as a result of a neck injury sustained in 1992. According to Dr. Parker's notes on August 13, 1992, MRI indicated disc protrusion at the C5-6 level of the cervical spine which Dr. Parker continued to treat for pain through February of 1993. Although Dr. Parker assigned the claimant an additional 10% anatomical impairment for the condition of his neck in April of 1995, the 10% rating in 1995 appears to relate to the same cervical abnormality which received a 5% impairment rating after the 1992 injury. In addition to the preexisting cervical disc abnormality identified in 1992, the claimant's most recent MRI, performed in December of 1994, also identified preexisting degenerative changes in two cervical discs as well. Moreover, the claimant testified that he experienced intermittent neck problems prior to his November 21, 1994, accident of a similar nature to the intermittent neck problems that he has experienced after recovering from his most recent injury. Accordingly, for the reasons discussed herein, we find that the claimant failed to prove by a preponderance of the evidence that the compensable injury was the major cause of the alleged anatomical neck impairment indicated by Dr. Parker.
Furthermore, we find that the claimant failed to prove that he sustained any incapacity to earn as a result of his compensable injury. 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). In the present claim, the claimant was 42 years old at the time of the hearing. Although the record does not indicate the claimant's education or general work experience, the record indicates that the claimant has worked primarily in the trucking industry since at least 1987. As discussed, the claimant's testimony indicates that, at the time of the hearing, he worked driving a dump truck. The claimant's weekly earnings and hourly rate indicate that the claimant works 60-65 hours per week during good weather. Although Dr. Parker imposed work-related restrictions on the claimant in April of 1995, the claimant testified that he was under no physical limitations at the time of the hearing. Although the claimant does continue to experience residual pain in the neck and shoulder from time to time, the claimant's testimony indicates that his intermittent pain has not affected his ability to return to driving a dump truck long hours. Accordingly, after considering the claimant's age, work experience, the relatively minor nature of his compensable injury, his lack of physical limitations resulting from the compensable injury, and all other matters properly in the record, we find that the claimant failed to prove that he sustained any decrease in earning capacity as a result of his compensable injury.
In reaching our decision, we note that the claimant testified that he currently earns less wages as a dump truck driver than he previously earned while driving a tractor-trailer rig for the respondents, and suggests that the wages in his present job is indicative of a decreased earning capacity. However, as discussed, disability is determined by an incapacity to perform work, not on the lack of employment opportunities. Leslie v. Sanyo Mfg. Corp. 13 Ark. App. 59, 679 S.W.2d 222 (1984). In the present case, the evidence establishes that the claimant's alleged inability to find work paying at or above his former wages is due to economic factors which are unrelated to his injury. Accordingly, for the reasons discussed herein, we find that the claimant failed to prove by a preponderance of the evidence that he sustained a permanent anatomical impairment or other permanent disability.
In addition, we find that the claimant failed to prove by a preponderance of the evidence that he is entitled to an award of temporary total disability for the period beginning on November 22, 1994, and continuing through January 29, 1995, as he contends. Act 796 did not change the basic law governing temporary disability compensation. Temporary disability is determined by the extent to which a compensable injury has affected the claimant's ability to earn a livelihood. An injured employee is entitled to temporary total disability compensation during the period of time that he is within his healing period and totally incapacitated to earn wages. Arkansas State Highway and Transportation Department v. Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981). An injured employee is entitled to temporary partial disability compensation during the period that he is within his healing period and suffers only a decrease in his capacity to earn the wages that he was receiving at the time of the injury. Id. The "healing period" is defined as the period necessary for the healing of an injury resulting from an accident. Ark. Code Ann. § 11-9-102(13) (Repl. 1996). The healing period continues until the employee is as far restored as the permanent character of his injury will permit. When the underlying condition causing the disability becomes stable and when nothing further will improve that condition, the healing period has ended, and the claimant is no longer entitled to receive temporary total disability compensation or temporary partial disability compensation, regardless of his physical capabilities. Moreover, the persistence of pain is not sufficient in itself to extend the healing period or to find that the claimant is totally incapacitated from earning wages. Mad Butcher Inc. v. Parker, 4 Ark. App. 124, 628 S.W.2d 582 (1982).
In the present claim, we find that the claimant failed to prove that he was incapacitated to earn wages and within his healing period from November 22, 1994, through January 29, 1995. In this regard, the claimant's medical records from November 21, 1994, indicate that the claimant sustained a relatively minor injury, and the claimant's wife commented to an acquaintance after taking the claimant to the hospital that she questioned the sincerity of his complaints. Notably, the claimant's medical records submitted into evidence do not include any medical opinion indicating that he became incapable of returning to work following the November 21, 1994, accident. Similarly, although the claimant requests temporary total disability compensation through January 29, 1995, the claimant did not submit into evidence any medical evidence indicating that the claimant remained within his healing period or incapacitated to earn wages through that date. Notably, the claimant did undergo a procedure to the shoulder on December 29, 1994. The only update submitted into evidence, dated January 4, 1995, indicates only that the claimant's shoulder was healing well, and that the claimant required additional physical therapy and evaluation. However, Dr. Parker's January 4, 1995, note does not support a conclusion that the claimant was incapacitated to earn wages or that he remained within his healing period through January 29, 1995. Therefore, in light of the relatively minor nature of the injury sustained on November 21, 1994, the relatively minor nature of the procedure performed on December 29, 1994, the lack of evidence indicating that any physician ever placed the claimant in off-work status, and the lack of medical evidence indicating the extent, if any, that the claimant became incapacitated to work or entered a healing period after his November 21, 1994, injury, we find that the claimant failed to prove that he is entitled to temporary disability compensation for any period of time after the November 21, 1994, incident.
Accordingly, after a de novo review of the entire record, we find that the preponderance of the evidence establishes that the claimant sustained a compensable injury on November 21, 1994. However, we find that the claimant failed to prove by a preponderance of the evidence that he is entitled to compensation for a permanent physical impairment or other permanent disability. In addition, we find that the claimant failed to prove by a preponderance of the evidence that he is entitled to temporary disability compensation. Therefore, we find that the administrative law judge's decision must be, and hereby is, affirmed.
IT IS SO ORDERED.
Commissioner Humphrey dissents.