Opinion
CLAIM NOS. E317015 and E002733
OPINION FILED JANUARY 13, 1998
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 JOHN BEASLEY, Attorney at Law, Fort Smith, Arkansas.
Decision of Administrative Law Judge: Reversed.
OPINION AND ORDER
[2] Respondents appeal and claimant cross-appeals an opinion filed June 26, 1997, by an administrative law judge. The administrative law judge found that the claimant proved entitlement to wage loss in the amount of 6% over and above the 6% impairment rating which respondents accepted and paid, giving him a permanent partial disability of 12% to the body as a whole. The administrative law judge found that Act 796 of 1993 did not apply to this case, determining that claimant's impairment rating and wage loss were based on his 1990 injury. After reviewing the entire record de novo, we reverse the decision of the administrative law judge.The parties stipulated that the claimant sustained compensable back injuries on February 7, 1990 and October 1, 1993. The claimant's first injury occurred February 7, 1990, while struggling with a large barrel filled with ink. He presented to Crawford Memorial Hospital and was diagnosed with acute lumbar strain. A radiology report on the date of the injury showed an impression of normal lumbar spine radiographs. The claimant began what turned out to be a lengthy course of conservative treatment. Dr. A.D. MacDade, of Neurosurgical Associates of Fort Smith, examined the claimant on February 9, 1990, with the following impression:
1. Muscle contusion, sacrospinalis musculature. Left lumbar perivertebral region versus muscle hematoma.
2. Normal neurologic examination.
3. Mechanical low back pain, secondary to above.
On February 21, 1990, Dr. R.W. Ross, the company physician, stated that the claimant was "resistant to the thought of going back to work and constantly reminds me that he has to help raise 3,000 lb. rolls of paper and that there is no light duty where he works." On February 28, 1990, Dr. Ross analyzed lumbosacral strain, rapidly improving. Dr. Ross released the claimant to return to light-duty work, no lifting more than 20 pounds. Light duty was unavailable, however, according to a March 9, 1990, report from Dr. Ross. On March 21, 1990, Dr. MacDade opined that the respondent-employer would be wise to profile the claimant. However, Dr. MacDade would not prohibit the claimant from returning to his usual printing activities.
On March 23, 1990, Dr. Ross stated:
It is of note that on several occasions while Bobby has been off with his back, he has mentioned that he takes his father back and forth to the VA Hospital in Muskogee. I told him today that I wanted him to begin the Work-Hardening Program with Mr. Tisdale today. He said that he could not do that but as soon as he left here, he had to drive to Muskogee and pick up his father who was in the hospital there and take him home. It seems that he has been doing a lot of driving and attending to his sickly father during this time that he has been off with his back pain. I counseled him that this was certainly aggravating his problem and was not appropriate for a man who was trying to get well and get back to work.
Dr. Ross again released the claimant to return to work on or about April 6, 1990. In April, 1991, Dr. Ross noted "excellent improvement" in the claimant's low back pain and again opined that he was ready to return to regular work.
On October 4, 1991, the doctor reported that claimant had "reinjured his back with no specific event." Dr. Ross gave the claimant a week of bed rest, but on October 11, the claimant reported that he had fallen through a fence the previous week, while walking through a pasture. Another radiology report was taken on October 20, 1991, with the following impression:
Mild degenerative disc changes at L4-5 and L5-S1.
No disc herniation or other abnormality is demonstrated.
This was the first report showing degenerative disc changes. However, noting that the claimant's back had improved, the doctor once more returned him to work on or about October 31, 1991. In September, 1992, Dr. Ross stated:
Bobby has a chronic lumbosacral strain secondary to injury at Dixie Cup. He continues to take Robaxin, Analor-DH 5 and Orudis and continues to work, though he is in a lot of pain. He is very stiff in his lower back when he gets up in the morning. He recognizes, as I do, that we don't have a good answer to this and that the work is aggravating his back but he wants to stay at it, so we will allow that and refill his medications for another twelve months.
In April, 1993, Dr. D. Hefner also diagnosed "chronic lumbosacral strain secondary to injury at Dixie Cup."
On October 4, 1993, Dr. Ross reported that the claimant had fallen at work and bruised his left hip, right shoulder, and left elbow. The claimant described this incident at hearing:
Well, in between two cylinders and the paper runs up above, and I was number two man in the print department; I had to take care of the ink and the print. I went in there and I turned around and there was oil on the floor and my feet went out from under me like I was on ice and I went under one cylinder platform, and I hit both hips with the hip hitting and one hitting the machine, and I hit my shoulder, too.
The elbow and shoulder were much better, said the doctor, but the claimant was limping and had discomfort in the fascial tissue above the left hip joint. Dr. Ross took the claimant off work. On October 13, 1993, Dr. Ross reported significant muscle spasm. Another lumbar spine radiography was taken, showing degenerative changes, primarily at the facet joints of L5-S1. Dr. Ross set forth the following on October 20, 1993:
Bob's back is not any better. He lives near Muldrow. He can't make trips over here for PT. I have advised him that I think he should be admitted to the hospital so we can begin intensive PT. He doesn't want to do that because he says he takes care of his father at home. I recall the last time he was off with his back that this became a problem as he was driving his father back and forth to Muskogee for therapy. I think that his lifestyle and the place where he lives is a problem both for himself and James River-Dixie because I don't think this man really does much to help himself get better and seems to enjoy a month or two off from work every year with his back. I suggested hospitalization and he said that he couldn't do that. He wished to be referred to a specialist. Will make an appointment with Dr. Heim and I'll see him again in 2 wks. The condition of his back is such that he can't return to regular work at James River-Dixie.
Dr. Stephen Heim, Cooper Clinic, P.A., examined the claimant on October 21, 1993. Dr. Heim noted "very obvious" sclerotic lesion at L5-S1 with degenerative joint disease and "definite" degenerative facet disease. Dr. Heim did not see the need to proceed with a MRI. Conservative treatment continued. In November, 1993, Dr. Heim returned the claimant to his regular activities.
The claimant attempted to return to work on or about January 4, 1994, but lifting the heavy rolls of paper was "too much for him and his back is hurting again and pain is radiating down his right leg," according to a medical report. A subsequent lumbar MRI taken indicated moderate disc bulge at L4-5 and mild diffuse disc bulge and degenerated disc at L5-S1. Dr. Ross released the claimant to light duty on January 19, 1994.
Dr. Heim related the following in February, 1994:
Mr. Stevenson returns where he says he tried to go back to work and in an hour and a half, his pain was bad enough that he could not handle it. We have tried, really, most conservative measurements. He's evidently had an MRI performed at Prime Echo Imaging at the behest of Dr. Ross which shows, as we suspected from the x-ray, some degenerative disease between L5 and S1 and some disc disease above that that is not impinging on the subarachnoid space. I do not feel that he needs surgery at this time. Primarily, he needs to protect his back and not engage in any difficult activities. He's speaking about retirement and I have told him that I think that is a viable option due to the fact that he does have a low back problem. We are going to give him an injection of Decadron today to decrease the swelling and pain in his back. He is neurologically intact. I think that if he can work a retirement out that that would be an acceptable problem (sic).
Obviously, his degenerative changes have been coming on for some period of time and the fall simply has exacerbated them. If retirement is not an option, then think it will be necessary that he be on a job where he does not lift probably more than 25 pounds and does no repetitive lifting at the waist.
Dr. Ross reported, on March 1, 1994:
JRD would not let him return to a light duty job. He says that he still can't go back and do the work that requires him to move the 300 lb rolls of paper so I see no alternative except to leave him off from work. We're not really doing much for this fellow. It seems a shame that he is not doing some kind of work because he has a full ROM, no evidence of any limitation of movement. He comes in to the examining room and sits down without evidence of pain or stiffness and stands up and walks out briskly the same way.
Dr. Heim stated, on April 26, 1994:
Mr. Stevenson states that his back is doing pretty well. We discussed at length his job and it sounds like James River is really trying hard to work with him and find a job that he can do comfortably and for that I appreciate Mr. Wright and Mrs. Ronso. I think he has a degenerative condition in his back. I think that he still has a lot of work left in him if he can just hold off of repetitive lifting from waist level and repetitive bending. Will place him in a back brace today that hopefully will allow him to sit up and stand and walk for longer periods of time before he experiences some degenerative conditions. We will need to continue on with the anti-inflammatory medications and I will see him back on a three month basis.
On May 3, 1994, Dr. Ross yet again released the claimant to work. The doctor directed no stooping, bending, stretching, or climbing; no lifting more than 10 pounds; and sit 50% of the time and stand 50% of the time. The doctor noted that the claimant "limped tremendously" when asked to demonstrate, but was not limping at all when he left the office. In July, 1994, Dr. Ross stated that it was "believable" that the claimant's fall could have aggravated his preexisting back injury. In August, 1994, Dr. Heim released the claimant to pursue a job in the "plate packing" area. The claimant testified that he bid on this job, but the employer would not accept the doctor's lifting restriction.
In November, 1994, Dr. Heim opined that the claimant had reached maximum medical improvement as of September 13, 1994 and was able to return to light duty on that date. Dr. Heim assigned a 6% whole body impairment rating, which he said was due to degenerative arthritis of the lumbar spine. Dr. Heim wrote the respondents in June, 1996:
In regard to your inquiry concerning Mr. Bobby Stephenson, his rating of his lumbar spine is indeed due primarily to his degenerative arthritis, which was present on October 21, 1993. The injury that he had may have exacerbated this underlying condition, but the initial x-rays showed the underlying degenerative disease of his spine to be present at that time.
Finally, Dr. Heim corresponded in January, 1997:
After reviewing the MRI that was performed on October 20, 1991, showing mild degenerative disc changes at L4-5 and L5-S1. These are wholly consistent with degenerative changes that have incurred over many years with a gentleman of Mr. Stevenson's age. These do not appear to be acute changes associated with a fall, automobile accident, etc., and would hold that Mr. Stevenson simply has degenerative changes of his spine from long-term wear and tear of his back.
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, 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).
In considering the factors which may affect an employee's future earning capacity, we may consider the claimant's motivation to return to work, since a lack of interest or negative attitude impedes our 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). Likewise, although a claimant's failure to participate in rehabilitation does not bar his claim, 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).
A preexisting disease or infirmity does not disqualify a claim if the employment aggravated, accelerated, or combined with the disease or infirmity to produce the disability for which compensation is sought. Nashville Livestock Commission v. Cox, 302 Ark. 69, 787 S.W.2d 664 (1990); Minor v. Poinsett Lumber Mfg. Co., 235 Ark. 195, 357 S.W.2d 504 (1962); Conway Convalescent Center v. Murphree, 266 Ark. 985, 588 S.W.2d 462 (Ark.App. 1979). However, employers are only liable for the results of compensable injuries. Therefore, injured employees are entitled to permanent disability compensation only to the extent that their incapacity to earn wages is causally related to the compensable injury. Weaver v. Tyson Foods, 31 Ark. App. 147, 790 S.W.2d 442 (1990); See also, Jerry Rice v. Georgia-Pacific Corp., Full Workers' Compensation Commission, Nov. 6, 1992 (Claim No. D707050); Charles Mulanax v. Ferguson Farms, Full Workers' Compensation Commission, Mar. 2, 1992 (Claim No. D408955); Elder Smith v. Ray Construction, Full Workers' Compensation Commission, Dec. 11, 1991 (Claim No. D804690); Francis Powell v. Tiffany Stand Furniture, Inc., Full Workers' Compensation Commission, Jul. 1, 1991 (Claim No. D710675).
However, no compensable permanent disability is sustained unless the underlying disease or condition is worsened as a result of the work-related injury. See, Arkansas Power Light Co. v. Scoggins, 230 Ark. 936, 328 S.W.2d Act 796 of 1993 amended Arkansas Workers' Compensation Law pertaining to permanent disability. For example:
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 pre-existing 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). Considering the context in which the terms "permanent benefits" and "impairment" are used in this provision, the statute clearly requires the claimant to show that the compensable injury was the major cause of the impairment. "Major cause" is now defined 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).
Act 796 of 1993 defines "disability" as "the incapacity because of injury to earn, in the same or any other employment, the wages which the employee was receiving at the time of the injury." Ark. Code Ann. § 11-9-102(9) (Repl. 1996). Permanent disability compensation is paid where the permanent effects of a work-related injury incapacitate the employee from earning the wages he was receiving at the time of the injury. Therefore, if a work-related incident only temporarily precipitates symptoms associated with an underlying preexisting disease or condition, the claimant is not entitled to any permanent disability compensation. Instead, the employee is entitled to permanent disability compensation only if the work-related injury permanently worsens the underlying disease or condition, thereby impairing the employee's capacity to earn the wages he was earning at the time of injury.
Act 796 also amended the law to allow respondents to reduce, or "offset" their payments according to the amount of money claimants receive from other sources. Ark. Code Ann. § 11-9-411:
(a) Any benefits payable to an injured worker under this chapter shall be reduced in an amount equal to, dollar-for-dollar, the amount of benefits the injured worker has previously received for the same medical services or period of disability, whether those benefits were paid under a group health care service plan of whatever form or nature, a group disability policy, a group loss of income policy, a group accident, health, or accident and health policy, a self-insured employee health or welfare benefit plan, or a group hospital or medical service contract.
Additionally, Ark. Code Ann. § 11-9-522(f) provides:
(1) Any permanent partial disability benefits payable to an injured worker age sixty-five or older shall be reduced in 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 within matter, the administrative law judge found that the claimant exacerbated his February, 1990 injury when he fell at work in October, 1993; the administrative law judge determined that the October, 1993 incident did not result in a "new injury." The administrative law judge found that the claimant's impairment rating and entitlement to wage loss are based on his 1990 injury. We reverse this finding.
When the primary injury is shown to have arisen out of and in the course of employment, the employer is responsible for every natural consequence flowing from the injury. If, after the period of initial disability has subsided, the injury flares up without an intervening cause and creates a second disability, it is a mere recurrence, and the employer remains liable. A recurrence is not a new injury but simply another period of incapacitation resulting from a previous injury. Atkins Nursing Home v. Gray, 54 Ark. App. 125 (1996).
On appeal, the claimant contends that he sustained a compensable injury in February, 1990, with an "exacerbation" in October, 1993. Claimant points to Dr. Heim's February, 1994 report, stating that the claimant's fall "exacerbated" his degenerative condition. Claimant asserts that the 6% impairment rating was due primarily to degenerative changes showing up on lumbar x-rays performed in October, 1993; the February 7, 1990 lumbar x-rays were normal. The claimant contends the only reasonable conclusion is that the degenerative changes occurred after the February, 1990 compensable injury. The claimant points out that the February, 1990 x-rays indicated no degenerative changes, at a time when he was nearly 55 years old. He had no previous back problems and "worked good" prior to the February, 1990 injury.
In fact, the claimant contends that he has sustained wage loss disability greatly exceeding the 6% rating assigned by the administrative law judge. The claimant, now age 61, worked for respondent-employer nearly 27 years. He asserts that he had not recovered from the February, 1990 compensable injury at the time of his October, 1993 fall. Claimant testified that he bid on work as a "plate packer" for respondents, but they would not accept his lifting restriction. However, the record indicates that the claimant has not been motivated to return to work. The claimant has been released to full and light duty several times by at least four separate physicians. We commend the claimant for caring for his father, but the record indicates he has not otherwise followed treatment recommendations. After over three years of conservative treatment for a lumbar strain, Dr. Ross opined that the claimant enjoys a month or two off every year with his back.
After reviewing the entire record, we find that the claimant is not entitled to permanent benefits for either his 1990 or 1993 injury, beyond the 6% permanent impairment rating already paid by respondents. In so finding, we note Dr. Heim's opinion that the claimant simply has degenerative arthritis of his spine from long-term wear and tear of his back, consistent with a person the claimant's age. We find that Act 796 of 1993 applies to this case, because the claimant sustained a new injury in October, 1993. First, Dr. Ross' October 4, 1993, medical record states that the claimant fell at work, injuring his left hip, right shoulder, and left elbow. The claimant testified that he slipped on oil "like I was on ice" and hit his hips and shoulder. No back pain was mentioned. There is nothing else indicating this incident was a recurrence of the earlier injury. Second, the claimant stipulated that he sustained a compensable injury to his low back on October 1, 1993. Third, in 1994, Dr. Ross found it "believable" that the 1993 fall could have aggravated the claimant's pre-existing injury.
Since Act 796 applies to this claim, the claimant must prove that the compensable injury was the major cause of his disability or impairment. We find that the claimant failed, by a preponderance of the credible evidence, to do so. Dr. Heim opined that the claimant's impairment rating was due to degenerative arthritis of the lumbar spine, not a compensable injury. In January, 1997, Dr. Heim opined that the claimant "simply has degenerative changes of his spine from long-term wear and tear of his back." In short, there is nothing of record attributing the major cause of claimant's disability to any work-related injury.
Accordingly, based on our de novo review of the entire record, and for the reasons discussed herein, we find that the claimant failed to prove entitlement to any wage loss over and above the 6% impairment rating accepted and paid by the respondents. We find that Act 796 of 1993 applies to this case, because the claimant sustained a new injury on October 1, 1993. Pursuant to Act 796, we find that the claimant failed to prove, by a preponderance of the evidence, that the compensable injury was the major cause of his disability or need for treatment. We thus reverse the decision of the Administrative Law Judge.
IT IS SO ORDERED.
Commissioner Humphrey dissents.