Opinion
CLAIM NO. E511541
OPINION FILED DECEMBER 4, 1997
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE EDDIE H. WALKER, JR., Attorney at Law, Ft. Smith, Arkansas.
Respondents represented by the HONORABLE WAYNE HARRIS, Attorney at Law, Ft. Smith, Arkansas.
Decision of Administrative Law Judge: Affirmed.
OPINION AND ORDER
Claimant appeals an opinion and order filed by the administrative law judge on January 22, 1997. In that opinion and order, the administrative law judge found that the claimant failed to prove by a preponderance of the credible evidence that his July 14, 1995, compensable injury was or is the major cause of his permanent disability. In addition, the administrative law judge found that the respondents are entitled to a Social Security offset for benefits paid for permanent disability, and the administrative law judge found that the respondents are entitled to a dollar for dollar offset for permanent disability owed the claimant under workers' compensation against retirement benefits being paid by Social Security. The administrative law judge also found that the respondents are entitled to reimbursement for benefits paid as permanent disability. After conducting a de novo review of the entire record, we find the decision of the administrative law judge must be affirmed.
The claimant became employed by the respondents on October 2, 1991, at the age of 64 years old. For several years prior to his compensable injury in 1995, the claimant's job duties consisted of pushing patients in wheel chairs and gurneys into the clinic and from one area of the clinic to another. The claimant testified that on July 14, 1995, he sustained an injury to his back which he described as follows:
I was getting a fellow out of his van; he had a large cast on up to his hip and he was a large guy, and it was a little incline and a slope and I tried to save him from turning over and I felt my back pop.
The claimant came under the care of Dr. Tom E. Cheyne who ultimately diagnosed a compression fracture to the fourth lumbar vertebrae. Dr. Cheyne ultimately assessed the claimant a 6% permanent anatomical impairment rating to the body as a whole as the result of the claimant's compression fracture injury. The claimant has not returned to work since the injury on July 14, 1995, and the claimant currently seeks benefits for an impairment to his wage earning capacity in excess of the anatomical impairment established by the medical evidence.
Since the claimant's compensable injury occurred after July 1, 1993, this claim is subject to the provisions of Act 796 of 1993. As under the law that existed prior to the passage of Act 796, when determining the degree of permanent disability sustained by an injured worker, the Commission must determine 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 reasonably expected to affect the worker's future earning capacity. Ark. Code Ann. § 11-9-522(b)(1) (Repl. 1996). The Arkansas Workers' Compensation Law also provides that when an injured worker's disability condition becomes stable and no further treatment will improve that condition, the disability is deemed permanent. If the employee is totally incapacitated from earning a livelihood at that time, he is entitled to compensation for permanent and total disability. See, Minor v. Poinsett Lumber Manufacturing Co., 235 Ark. 195, 357 S.W.2d 504 (1962). Under the Arkansas Workers' Compensation Law that existed prior to the passage of Act 796, an injured worker could also be classified as permanently and totally disabled under the "odd lot" doctrine even though the injured worker was not altogether incapacitated from work. An injured worker was said to fall into the "odd lot" category where the obvious severity of his injury combined with other factors such that the services he could perform were so limited in quality, dependability, or quantity that a reasonably stable market did not exist for those services even though the claimant was not completely incapacitated from work. See, Lewis v. Camelot, 35 Ark. App. 212, 816 S.W.2d 632 (1991). However, Act 796 eliminated the "odd-lot" doctrine as a consideration in a claim for permanent disability benefits under the Arkansas Workers' Compensation Commission. See, Ark. Code Ann. § 11-9-522(e) (Repl. 1996).
In addition, 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 or 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).
"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).
"Disability" is defined by the amended law as follows:
Disability means 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.
Ark. Code Ann. § 11-9-102(9) (Repl. 1996).
Considering the context in which the terms "permanent benefits" and "disability" are used in Ark. Code Ann. § 11-9-102 (5) (F) (ii), the amendments of Act 796 clearly impose a requirement on a claimant seeking compensation for a permanent decrease in earning capacity to show that the compensable injury was the major cause of any decrease in earning capacity.
In the present claim, after reviewing the entire record, we find that the claimant failed to prove by a preponderance of the evidence that his compensable L4 vertebrae fracture was the major cause of his disability. The claimant was 79 years old when the work-related injury occurred on July 14, 1995, and the medical evidence indicates that the claimant has been diagnosed and treated for various back abnormalities prior to the most recent injury. In this regard, the medical record indicates that a lumbar CT scan performed on the claimant's lumbar spine on July 1, 1988, indicated annular bulges at the L3-4 and L4-5 levels of the claimant's lumbar spine with mild right L4-5 focal protrusion, without extrusion or displacement or herniated nucleus pulposus. X-rays taken in 1988 indicated degenerative disc disease at the L4-S1 level. In addition, the medical record indicates the claimant was involved in an automobile accident on July 15, 1996, when the car he was sitting in was struck from behind. According to a September 3, 1996, medical report, the impact from that accident was strong enough that it broke off the front seat of the car and threw everything into the dash. That report notes problems with the claimant's neck and both shoulders as well as chronic back trouble which the claimant thought may have been aggravated by the injury. X-rays of the claimant's cervical spine at that time showed degenerative arthritic change from the C5 through the C7 levels with encroachment bilaterally at the C5-6 and C6-7 interspaces. Films made of the lumbar spine showed no change in the L4 fracture since prior films in January of 1996.
Prior to the July 15, 1996, motor vehicle accident, Dr. Cheyne, the claimant's treating physician indicated on April 12, 1996, that the claimant was doing quite well and requested to go back to work. According to Dr. Cheyne's notes the claimant stated that he had been mowing his yard without difficulty prior to that time. Dr. Cheyne released the claimant to return to work that day with a 10 pound weight restriction with no repetitive bending or lifting and a recommendation that if the claimant returned to work for the respondents, that the claimant not push patients in wheelchairs for patients weighing over 125 pounds and then only on flat level surfaces.
After consideration of Dr. Cheyne's minimal restrictions, the nature and extent of claimant's pre-existing back problems, and the nature of the claimant's complaints after the July 15, 1996, motor vehicle accident, and all other evidence properly in the record, we find that the greater weight of the evidence fails to establish that the claimant's compensable injury is the major cause of any permanent impairment he may have sustained to his earning capacity. Moreover, we find that Dr. Cheyne's 10 pound lifting restriction (with no repetitive bending or lifting) appears to be very appropriate for any person of the claimant's age and preexisting medical condition. In reaching our decision, we note that the claimant sustained a relatively minor compensable fracture injury as compared to the claimant's preexisting back problems and the claimant's more extensive complaints following an automobile accident that occurred more than a year after the compensable fracture injury. While the claimant is to be applauded for his persistent work career long after the age that most people would retire, we find that the 10 pound lifting restriction placed on the claimant is certainly not inconsistent with restrictions which would normally be expected for a person with the claimant's age and pre-existing back problems. Consequently, for the reasons discussed herein, we find that the claimant failed to prove that his compensable injury was the major cause of any impairment to his earning capacity that he has experienced.
With regard to the claimant's entitlement to payments for Dr. Cheyne's 6% permanent anatomical impairment rating Ark. Code Ann. § 11-9-522(f)(1) states:
Any permanent partial disability benefits payable to an injured employee age sixty-five (65) or older shall be reduced to an amount equal to, dollar-for-dollar, the amount of benefits the injured worker received or is eligible to receive from a publicly or privately funded retirement or pension plan but not reduced by the employee's contributions to a privately funded retirement or pension plan.
In the present case the record establishes that claimant received $903.00 per month from Social Security retirement, an additional $140.00 per month from Harding Glass Company retirement, and $223.00 per month from PhyCor/Holt-Krock Clinic retirement. However, pursuant to the Arkansas Workers' Compensation payment schedule, the claimant would be entitled to $667.00 per month for permanent partial disability. Therefore, we find that the respondents are entitled to a dollar-for-dollar offset for permanent disability for the claimant's retirement benefits.
In reaching our decision, we note that the claimant's attorney asserts that the provisions of Ark. Code Ann. § 11-9-522(f) are unconstitutional and/or are preempted by the federal ADEA. However, in this regard we note that the Arkansas Court of Appeals has previously determined that the Statute in question is not unconstitutional nor is it preempted by the Federal ADEA. See Golden v. WestArk Community College, 58 Ark. App. ___, ___ S.W.2d ___ (July 2, 1997).
Finally we note that the record indicates that the claimant received from the respondent fourteen weeks of benefits for permanent partial disability compensation, and we note that the administrative law judge found that the respondents are entitled to reimbursement for benefits paid for permanent disability in light of the off-set indicated by Ark. Code Ann. § 11-9-522(f). With regard to the respondents' entitlement to a reimbursement, we note that Ark. Code Ann. § 11-9-807(a) states:
If the employer has made advance payments for compensation, he shall be entitled to be reimbursed out of any unpaid installment or installments of compensation due.
In the present case, the record indicates that the claimant has received fourteen weeks of permanent disability benefits for which he was not entitled. Consequently, we find that the respondent is entitled to reimbursement for these fourteen weeks of benefits payable out of any installment of indemnity benefits to which the claimant may become entitled in the future as a result of his compensable injury. See, generally, Tomasa Rogers v. Ayers Chairmakers, Full Workers' Compensation Commission, Sept. 16, 1992 (Claim No. D902725) (aff'd. Sept. 22, 1993); Roger Mixon v. Valley Implement, Full Workers' Compensation Commission, June 20, 1996 (Claim No. E315872); William Hunt v. Bill Lovett, Full Workers' Compensation Commission, Sept. 16 1996; Curtis Trimble v. Transservice Corporation, Full Workers' Compensation Commission, June 3, 1997 (Claim Nos. E603970 and E414831).
Therefore, after conducting a de novo review of the entire record, and for the reasons discussed herein, we find that the claimant failed to prove by a preponderance of the credible evidence that his July 14, 1995, compensable injury was or is the major cause of his permanent disability. In addition we find that the respondents are entitled to a Social Security offset for benefits paid under permanent disability and we find that the respondents are entitled to a dollar-for-dollar offset for permanent disability owed the claimant under workers' compensation law against retirement benefits being paid by Social Security. We also find that the respondents are entitled to reimbursement out of any future indemnity benefits owed the claimant for fourteen weeks of permanent partial disability benefits paid to the claimant to date. Therefore, we find that the decision of the administrative law judge must be and hereby is, affirmed.
IT IS SO ORDERED.
CONCURRING AND DISSENTING OPINION
I concur in part and respectfully dissent in part from the majority opinion.
In light of the Arkansas Court of Appeals' recent holding in Golden v. Westark Community College, 58 Ark. App. ___, ___ S.W.2d ___ (1997), I concur with the majority's finding that the Social Security offset provisions of Ark. Code Ann. § 11-9-522(f) (Repl. 1996) are neither unconstitutional nor preempted by the Federal ADEA.
However, I must respectfully dissent from the finding that claimant has failed to prove that his compensable injury is the "major cause" of any diminution to his wage-earning capacity. Dr. Cheyne imposed work restrictions on claimant well before the latter's involvement in the July 15, 1996, automobile accident, and to the extent claimant may have suffered from pre-existing spinal degeneration, he appears to have had no difficulty in pushing wheel chair-bound patients until after his compensable injury of July 14, 1995.
As set out above, I concur in part and respectfully dissent in part from the majority opinion.
PAT WEST HUMPHREY, Commissioner