Stovall v. Bush-Caldwell

Full title: ROBERT STOVALL, EMPLOYEE, CLAIMANT v. BUSH-CALDWELL, EMPLOYER, RESPONDENT…

Court: Before the Arkansas Workers' Compensation Commission

Date published: May 12, 1995

1995 AWCC 106 (Ark. Work Comp. 1995)

Opinion

CLAIM NO. E020161

OPINION FILED MAY 12, 1995

Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.

Claimant represented by the HONORABLE DEWEY FITZHUGH, Attorney at Law, Little Rock, Arkansas.

Respondents represented by the HONORABLE TIM A. CHEATHAM, Attorney at Law, Little Rock, Arkansas.

Decision of Administrative Law Judge: Affirmed.

OPINION AND ORDER

The respondents appeal an opinion and order filed by the administrative law judge on August 9, 1994. In that opinion and order, the administrative law judge found the claimant permanently and totally disabled. After conducting a de novo review of the entire record, we find that the claimant proved by a preponderance of the evidence that he is permanently and totally disabled. Therefore, we find that the administrative law judge's decision must be affirmed.

The claimant sustained an admittedly compensable back injury on October 31, 1990, when he tripped over a board. He was initially treated conservatively by Dr. Evans and Dr. Hefley. Although the claimant attempted to return to work in early 1991, he continued to experience severe back pain, and Dr. Hefley referred him to Dr. David Arnold. In June of 1991, Dr. Arnold performed an anterior spinal fusion at L5-S1. Dr. Arnold's reports indicate that the claimant's complaints remained relatively unchanged after the surgery, and x-rays indicated that there was no consolidation of the fusion anteriorly or posteriorly. Bone stimulators were tried unsuccessfully. In a report dated May 28, 1992, almost one year after the surgery, Dr. Arnold noted that the claimant's level of pain remained unchanged, and, in a June 2, 1992, report to the respondent carrier, Dr. Arnold questioned whether the claimant would ever be able to return to work. Dr. Arnold subsequently left the state, and the claimant's care was assumed by Dr. Edward Saer. At the time that he referred the claimant to Dr. Saer, Dr. Arnold described the claimant's surgery as a "failed fusion," and he opined that the claimant sustained a 25% permanent physical impairment to the body as a whole.

In his deposition testimony, Dr. Saer indicated that he was not certain about whether the fusion was completely solid, although he indicated that it appeared to be solid. Nevertheless, Dr. Saer indicated that the fusion did not appear to be completely healed, and he indicated that the claimant's continued complaints of pain are consistent with a fusion which has not solidly healed. According to his testimony, micro movement of the spine can occur when a fusion fails to heal properly, and he testified that this micro movement can cause pain. In addition, he testified that pain generated around a fusion can cause some chemical irritation that can irritate the nerve without direct mechanical compression on the nerve, producing leg pain such as that described by the claimant. In addition, the claimant has declined to have the bone stimulator removed, and Dr. Saer testified that the presence of this hardware in combination with movement in the bone is also a potential source of the claimant's pain. Dr. Saer also opined that the claimant sustained a 25% impairment to the body as a whole, and he testified that 15% of this rating represented impairment sustained as a result of the surgery and 10% represented additional impairment resulting from the claimant's continued complaints of pain.

The claimant was also evaluated by Dr. Jim Moore, and Dr. Moore also questioned whether the fusion was stable, although he indicated that recent x-rays suggested that consolidation was occurring to some degree. He also opined that there was some movement in the fused joints, although the movement is slight. Dr. Moore has opined that the claimant sustained a 20% to 25% permanent physical impairment, and he testified that 5% to 10% of this rating was based on the claimant's complaints of pain. However, Dr. Moore also testified that there is an objective basis for the claimant's complaints of pain. In this regard, Dr. Moore testified that the slight movement of the fused joint as well as the presence of the hardware is sufficient to produce the pain described by the claimant. In addition, Dr. Moore testified that he observed muscle spasms when he examined the claimant.

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). 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).

Likewise, an employee who is injured to the extent that he can perform services that are so limited in quality, dependability, or quantity that a reasonably stable market for them does not exist may be classified as totally disabled under the odd-lot doctrine. Lewis v. Camelot Hotel, 35 Ark. App. 212, 816 S.W.2d 632 (1991). The odd-lot doctrine recognizes that the obvious severity of some injuries may combine with other factors to preclude the employee from obtaining employment in any reasonably stable market, although the employee is not altogether incapacitated from work. Id. In this regard, the factors which may combine with the obvious severity of the employee's injury to place him in the odd-lot category are the employee's mental capacity, education, training and age.Id. If the claimant makes a prima facie showing that he falls in the odd-lot category, the respondents have the burden of going forward with evidence showing that "some kind of suitable work is regularly and continuously available to the claimant." Id.

In the present claim, the claimant was fifty years old at the time of the hearing. He completed either the sixth or the seventh grade in school, and he has not received any other formal training or education. Mr. William Charles Marak is a volunteer with the Literacy Council of Pulaski County, and he tutored the claimant in reading for six months in 1987 and 1988. According to Mr. Marak's testimony, the claimant was willing and eager to learn, but, when they stopped working together, the claimant was reading only on a second grade level. The claimant worked for the respondent employer approximately 20 years, primarily as a general laborer. During this time the claimant did advance to the position of lead man, and he supervised eight employees. His other work experience consists of picking and chopping cotton, dish washing, and factory work.

The medical evidence establishes that he sustained a 20% to 25% permanent physical impairment as a result of his compensable injury. In this regard, I would note that the respondents suggest that the portion of the physicians' ratings which is based on pain should not be considered. In this regard, Ark. Code Ann. § 11-9-704(c)(1) (Cumm. Supp. 1993) does provide that "[a]ny determination of the existence or extent of physical impairment shall be supported by objective and measurable physical or mental findings." However, the Arkansas Court of Appeals has also found that Ark. Code Ann. § 11-9-704(c)(1) does not prohibit the Commission from considering other factors, even if purely subjective, so long as the record contains objective and measurable findings to support the Commission's ultimate decision. Keller v. L. A. Darling Fixtures, 40 Ark. App. 94, 845 S.W.2d 15 (1992); Reeder v. Rheem Manufacturing, 38 Ark. App. 248, 832 S.W.2d 505 11992); Taco Bell v. Finley, 38 Ark. App. 11, 826 S.W.2d 213 (1992). In fact, the Court has found that Ark. Code Ann. § 11-9-704(c)(1) "precludes an award for permanent disability only when it would be basedsolely on subjective findings." Keller, supra (quotingReeder, supra) (emphasis in original). Furthermore, the Court has found that this statute has no application to determinations of permanent disability other than the existence and extent of permanent physical impairment.Arkansas Methodist Hospital v. Adams, 43 Ark. App. 1, 858 S.W.2d 125 (1993). Moreover, in the present claim, we find that the claimant's complaints of pain are consistent with the objective medical findings.

In this regard, we find that the evidence establishes that the pain experienced by the claimant severely limits his ability to engage in useful activities. According to the claimant's testimony, he is unable to do many of the things around his house that he did before the injury, such as cooking and gardening, and his wife has to assist him with personal needs such as showering. In addition, he testified that he is unable to play baseball with his son as he did before the injury. The parties stipulated that the testimony of the claimant's wife and his neighbor would corroborate his testimony with regard to these facts.

The claimant also testified that he is now unable to enjoy hobbies such as fishing and hunting which he previously enjoyed. In this regard, William Mack testified that he and the claimant frequently fished and hunted together prior to the injury but that they had not fished or hunted since the injury. Mr. Mack also testified that the claimant is not now able to walk the two blocks from his house to Mr. Mack's house and back again, as he did before the injury. In addition, Mr. Mack testified that he frequently observes an expression on the claimant's face which indicates that the claimant is experiencing pain. The claimant also testified that he has been unable to participate in activities at his church that he enjoyed before the injury. His pastor, the Reverend Andrew J. Barron, testified that the claimant was a very active member of the church prior to the injury, but he testified that he has stopped his activities at the church since the injury. Reverend Barron also testified that the claimant attends services less frequently, and he testified that the claimant frequently changes his position and stands during services. Reverend Barron and the claimant also testified that the claimant has been unable to kneel to pray since the injury, and Reverend Barron testified that he has observed the claimant crying since the injury, apparently from pain.

Dr. Saer referred the claimant to Pathfinders Inc. a shelter workshop for physically and mentally disabled individuals, for a 10 day evaluation of the claimant. Charles Harris, a vocational counselor with Pathfinders testified that he observed the claimant performing assigned work, and he testified that the claimant appeared to be in severe pain. Mr. Harris also testified that he observed the claimant having to crawl into a van on one occasion, and he testified that the claimant had to be assisted in getting into and out of the van. Based on his observations of the claimant and the reports of staff members who worked with the claimant on a regular basis, Mr. Harris opined that the claimant was unable to work in the competitive work force, and he opined that the claimant was not a viable candidate for the competitive job market.

Ms. Marie Bruce is a skill training instructor for Pathfinders, and she worked with the claimant during his period of evaluation. She testified that he appeared to experience severe muscle spasms, and she testified that these spasms were so severe at times that the claimant had to lie down. She testified that he had to be taken to the sick room on one occasion in a wheelchair due to the severity of the pain. She testified that the expression on the claimant's face indicated that he was experiencing great pain, and she testified that his whole body trembled at times, apparently from the severity of the muscle spasms.

Based on the foregoing, we find that a preponderance of the evidence establishes that the claimant is totally incapacitated from earning a livelihood as a result of the effects of his compensable injury. Furthermore, even though the claimant may engage in some activities, we find that the severity of the injury has combined with the claimant's age, his extremely limited education, academic abilities, and work experience to preclude him from obtaining employment in any reasonably stable market. Therefore, we find that he made a prima facie showing that he falls in the odd-lot category and that the burden shifted to the respondents to show that some kind of suitable work is regularly and continuously available to the claimant. In this regard, the respondents presented the testimony of Ms. Suzanne Perrine, a rehabilitation coordinator, and Ms. Perrine testified that she had performed a job market survey and concluded that the claimant was able to obtain light to sedentary work in the local economy. However, while Ms. Perrine's survey lists general job classifications which may be available to the claimant, the respondents have not prevented any evidence indicating that these jobs are available in the market or that the jobs would fall within the claimant's physical restrictions. Furthermore, Ms. Perrine is a registered nurse, and she admits that she is not a vocational expert. On the other hand, Mr. Harris has a bachelor's degree and a master's degree in agency counseling, and he was worked in the field of vocational counseling for 18 years. Consequently, we find that Mr. Harris' conclusion that the claimant would be unable to secure any employment in a competitive job market is entitled to more weight than the opinion of Ms. Perrine.

Therefore, we find that the claimant has proven by a preponderance of the evidence that he is permanently and totally disabled as a result of the compensable injury. In reaching this conclusion, we note that Charles Davidson performed a functional capacity evaluation on the claimant, and he indicated that the evaluation was not valid due to less than maximal effort by the claimant. However, in light of the substantial medical and lay evidence documenting the severity of the claimant's condition, we do not find that the results of Mr. Davidson's evaluation or his testimony is sufficient to defeat a finding that the claimant is permanently and totally disabled

Accordingly, based on our de novo review of the entire record, and for the reasons discussed herein, we find that the claimant has proven by a preponderance of the evidence that he is permanently and totally disabled. In addition, we find that the preponderance of the evidence establishes that the claimant's healing period ended on December 22, 1992, pursuant to the opinion of Dr. Saer. Therefore, we find that the administrative law judge's decision must be, and hereby is affirmed.

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 (1987). For prevailing 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(b) (1987).

IT IS SO ORDERED.

[19] Commissioner Tatum dissents.

DISSENTING OPINION

I respectfully dissent from the majority's opinion finding that claimant is permanently and totally disabled.

Claimant had sustained only a 15% permanent anatomical impairment rating based upon objective and measurable medical evidence. The additional award of physical impairment is based upon subjective complaints of pain. Although I have no argument with the majority in awarding the claimant a 20-25% permanent physical impairment as a result of the compensable injury, I do disagree with the finding that a preponderance of the credible evidence shows that claimant is permanently and totally disabled. According to Dr. Jim Moore, claimant could return to work in a light duty capacity. Furthermore, a functional capacity evaluation performed on claimant and relied upon by Dr. Saer demonstrates that claimant is capable of performing light duty work.

Additionally, Ms. Perrine identified a number of light duty positions available to claimant. Claimant, however, has not sought any of these jobs. In fact, claimant has not even attempted to return to work for respondent. Respondent has adequately demonstrated that suitable work is available. Therefore, claimant is not permanently disabled and I respectfully dissent from the majority's opinion.

ALLYN C. TATUM, Commissioner