Opinion
CLAIM NOS. E407758 and E408127
OPINION FILED AUGUST 13, 1997
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE DENVER L. THORNTON, Attorney at Law, El Dorado, Arkansas.
Respondents represented by the HONORABLE BRIAN H. RATCLIFF, Attorney at Law, El Dorado, Arkansas.
Decision of Administrative Law Judge: Vacated in part and affirmed as modified in part.
OPINION AND ORDER
The respondents appeal an opinion filed December 13, 1996, by an Administrative Law Judge. The Administrative Law Judge found that the claimant's healing period ended January 17, 1995; that the claimant was permanently physically impaired in the amount of 10% to the body as a whole; and that the claimant was totally and permanently disabled from engaging in gainful employment. After conducting a de novo review of the entire record, we find that the preponderance of the evidence establishes that the claimant's healing period ended on October 1, 1994. In addition, we find that the claimant has sustained a permanent disability equal to 69 1/2% rated to the body as a whole with 7% attributable to permanent anatomical impairment and 62 1/2% attributable to permanent impairment to the claimant's wage earning capacity.
The claimant is 37 years old with a tenth grade education. His work history includes employment in oil wells from 1976 through 1985. Since 1985, the claimant has worked in the construction industry; primarily, he has worked in mills and plants during shutdowns. The parties to this matter stipulated that an employment relationship existed on March 4, 1994, when the claimant sustained a compensable back injury. He reinjured his back on May 18, 1994, while in the respondents' employ.
Dr. Donald Cook, one of the claimant's treating physicians, reported on January 17, 1995:
Therefore, according to AMA Guides (Guides to the Evaluation of Permanent Impairment, American Medical Association, 4th Edition, 1993), the following factors are applicable:
1. There is a 7% medical impairment of function of the total body as a whole as a diagnostically based rating, since this entity is comparable to a super-imposed soft tissue injury on an underlying discogenic disorder and/or soft tissue injury. (page 113)
2. The additional loss of motion as compared to motion measurements obtained in 1990 equilibrate to 3% medical impairment of function of the total body as a whole attributable directly to the asserted injury of March, 1994. (pp. 126, 128)
The combination of the above is 10% medical impairment of function of the total body as a whole attributable directly to the asserted injury of March 4, 1994 and exclusive of any known or reasonably probable preexisting factors. This is a medical rating. It is considered permanent. It does not take into consideration his age, education, occupation, training, employability, daily activities, economic loss and/or nonphysical factors.
In his opinion, the Administrative Law Judge extended the claimant's healing period from October 1, 1994 until January 17, 1995. However, the issue of the end of claimant's healing period was not raised by either party and was therefore not properly before the Judge. Therefore, we vacate and set aside that portion of his opinion which purports to further adjudicate the issue of claimant's healing period.
The Administrative Law Judge also found that claimant is permanently physically impaired in the amount of 10% to the body as a whole as a result of the 10% rating assigned by Dr. Cook. However, Dr. Cook's January 17, 1995, report clearly indicates that only 7% of the assigned impairment was attributable to a diagnostically based rating and 3% was based on loss of motion studies. In this regard, we note that Ark. Code Ann. § 11-9-102(16)(A)(ii) (Repl. 1996) prohibits the Commission or a physician from assigning impairment ratings to the spine based on range of motion testing. Therefore, after considering Dr. Cook's reports, and all other evidence properly in the record, we find that the greater weight of the credible evidence establishes that the claimant sustained a permanent anatomical impairment equal to 7% rated to the body as a whole.
Finally, the Administrative Law Judge found that the claimant is totally and permanently disabled from engaging in gainful employment. 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 (Repl. 1996); Tiller v. Sears, 27 Ark. App. 159, 767 S.W.2d 544 (1989). 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).
The claimant is 37 years old with a 10th grade education. He has no formal vocational training or skills, and his abilities as a millwright and carpenter derive only from on-the-job training. Moreover, the claimant's physician has warned him against engaging in demanding physical labor. However, the claimant has engaged in a number of types of work since his injury. These include "cranking" cars in a car lot, cleaning up at a construction site, assisting in constructing a room addition, assisting a painter, working as a painter and remodeling cabinets. However, the claimant's credible testimony also indicates that he is in constant pain and that he is limited in his physical activities. In this regard, the claimant indicated that he is unable to work for more than three to six hours per day for two or three days per week. After considering the claimant's age, education, work experience and all other relevant factors, we find that the claimant has sustained a 62 1/2 percent decrease in his earning capacity. Accordingly, based on our de novo review of the entire record, and for the reasons discussed herein, we vacate the Administrative Law Judge's finding that the claimant's healing period ended January 17, 1995. In addition, we find that the claimant has sustained a permanent disability equal to 69 1/2% rated to the whole body, with 7% attributable to permanent anatomical impairment and 62 1/2% attributable to a permanent decrease in the claimant's earning capacity. Therefore, we find that the administrative law judge's decision in this regard 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.
Commissioner Humphrey concurs.
CONCURRING AND DISSENTING OPINION
I concur in the majority's finding that the claimant's healing period ended October 1, 1994 and that the claimant sustained a 7% permanent anatomical impairment. However, I respectful dissent from the majority's finding that the claimant sustained a 62% wage loss in addition to the 7% permanent anatomical impairment. In my opinion, the claimant has sustained a 25% loss in wage earning capacity.
In my opinion, the evidence does not support a finding that the claimant has a 62% loss in wage earning capacity. 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).
Prior to the enactment of Act 796, an employee who was injured to the extent that he can perform services that are so limited in quality, dependability, or quantity that a reasonable stable market for them does not exist could be classified ad totally disabled under the odd-lot doctrine. Lewis v. Camelot Hotel, 35 Ark. App. 212, 816 S.W.2d 632 (1991). Id. However, since the claimant was injured after July 1, 1993, Act 796 applies to this claim and the claimant cannot be considered permanently and totally disabled under the odd-lot doctrine. Therefore, in considering the factors which may affect the claimant'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).
The claimant is a relatively young man, being only 37 years old. He has proven that he is able to perform short-term employment. The claimant has performed a number of jobs since he was injured. These include working at a car lot cranking cars, cleaning up at a construction site, assisting in constructing a room addition, assisting a painter, working as a painter and redoing cabinets. All of these jobs are indicative of the claimant's ability to work. He has not had any surgery and he has not pursued vocational rehabilitation. However, the claimant has worked at manual labor jobs his entire life and he has a limited education. Therefore, it is my opinion that the claimant has sustained a 25% wage loss.
Based upon my de novo review of the record and for the reasons discussed herein, I find that the claimant has sustained a 25% wage loss. Therefore, I respectfully dissent from the majority opinion finding that the claimant has a 62% loss in wage earning capacity. Accordingly, I concur in part and dissent in part.
MIKE WILSON, Commissioner