Opinion
CLAIM NO. F703066
OPINION FILED JUNE 24, 2009
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE NEAL L. HART, Attorney at Law, Little Rock, Arkansas.
Respondent represented by the HONORABLE GAIL PONDER GAINES, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed as modified.
OPINION AND ORDER
The respondents appeal and the claimant cross-appeals an administrative law judge's opinion filed February 17, 2009. The administrative law judge found that the claimant sustained wage-loss disability in the amount of 50%. After reviewing the entire record de novo, the Full Commission finds that the claimant sustained wage-loss disability in the amount of 25%.
I. HISTORY
Teresa Ann Tanner, age 43, testified that she worked in a furniture factory for four years after graduating from high school. Ms. Tanner testified that this work required manual labor. The claimant testified that she attended Radiology school, passed her boards in July 1990, and became a licensed radiographer. The claimant testified that she began working for Baptist Health in 1990. The claimant was hired as a staff technician and eventually became assistant supervisor of diagnostics. The claimant testified that her work for the respondent employer was "very stressful" and "very physical." The claimant testified, "You are constantly pulling on patients, if you have to do C-spines, you are (sic) have to pull on their arms to get all seven of their vertebrae so they can get clear off of the spine boards."
The parties stipulated that the employment relationship existed on December 4, 2006. The claimant testified that her base pay at that time was "twenty-nine sixty-one (29.61). And then after five o'clock, we got differential, an eighteen (18) percent differential, so that would be thirty-four nineteen (34.19)."
The parties stipulated that the claimant sustained a compensable injury to her neck and shoulders on December 4, 2006. Dr. J. Michael Calhoun performed a C5-C6 anterior cervical discectomy and fusion with anterior disc replacement on March 10, 2008. Dr. Calhoun reported on June 27, 2008:
Mrs. Tanner is declared maximally medically improved from her C5-C6 anterior cervical discectomy and fusion. This is as of today's date. Because she underwent a single level decompression with a disc replacement, and with residual signs and symptoms, she is awarded a 10% impairment to the whole person. Her permanent restrictions include no lifting or carrying more than 25 pounds, no over the shoulder work, no bending or twisting at the waist, and must be allowed to change positions freely.
The respondents accepted a 10% anatomical impairment rating.
Edie Nichols, a Vocational Rehabilitation Counselor, met with the claimant and provided an Initial Vocational Evaluation on July 30, 2008. Edie Nichols opined that the claimant could return to work in the Sedentary, Light, and Light-Medium categories of work. Ms. Nichols identified potential jobs for the claimant including Medical Receptionist, Client Service Manager, Unit Coordinator, and Pharmacy Packaging Technician.
Edie Nichols corresponded with the claimant on August 20, 2008 and notified the claimant of job openings including Medical Clerical Positions, Dispatcher, and Medicaid Biller. Ms. Nichols wrote to the claimant on August 28, 2008, notifying the claimant of current job openings including Domestic Relations Court Clerk, Accounts Payable Clerk, and Administrative Support.
A pre-hearing order was filed on August 28, 2008. The claimant contended that she had sustained wage-loss disability in excess of the anatomical impairment rating. The respondents contended that all appropriate benefits had been paid.
Edie Nichols continued to correspond with the claimant and notify the claimant of potential current job openings. Ms. Nichols reported on September 10, 2008, "On 9/4, I called Brenda Lancaster at Baptist Health to find out if there were any job openings that would be within Ms. Tanner's physical abilities. She told me that Ms. Tanner was a good worker, but that there were no openings there within restrictions." Ms. Nichols continued to identify potential job openings for the claimant.
Edie Nichols reported on November 17, 2008, "During this reporting period, I have completed 4 Labor Market Searches and have sent Ms. Tanner four letters, detailing 40 current job openings. Ms. Tanner called me on 10/15/08 and told me that Baptist Health had called her and said that the job she was to interview for had been placed `on hold,' and that the hospital would call her back when they had more information. Ms. Tanner was out of town in Arizona (approximately the week of 11/10/08) because of a death in the immediate family. Up until that time, she continued to send resumes and fill out applications."
A hearing was held on November 19, 2008. The claimant testified regarding her physical condition, "I'm very sensitive to cold weather. I have a lot of, I don't have as much use of my right hand as what I used to. I find that even small things are kind of hard to do with my right hand, even like the Ziploc bags and stuff like that, to open the ones that you have to open up. . . . I don't have the strength that I used to in my right hand. . . . I try not to do anything that I think will hurt my neck."
The claimant testified that she had contacted employers for potential jobs with the assistance of Edie Nichols. The claimant estimated that she had applied for about 150 jobs. The claimant hoped to earn at least $8.50 hourly. The claimant testified that she was discouraged because "I have only had two interviews. I've had post cards saying that I was ineligible. I have had e-mails saying I was ineligible."
Edie Nichols testified that the claimant had been "very cooperative. She's done everything that I have asked her to do." Ms. Nichols testified on cross-examination that the claimant had "marketable skills. She has been a supervisor. She has and is able to obtain information and also to learn new information. And she has computer skills. She has some accounting. So she does definitely have skills that are marketable."
An administrative law judge filed an opinion on February 17, 2009. The administrative law judge found that the claimant "has sustained wage loss of 50% in addition to her rating of 10% for a total of 60% in permanent partial disability benefits." The respondents appeal to the Full Commission and the claimant cross-appeals.
II. ADJUDICATION
The wage-loss factor is the extent to which a compensable injury has affected the claimant's ability to earn a livelihood. Eckhardt v. Willis Shaw Express, Inc., 62 Ark. App. 224, 970 S.W.2d 316 (1998). In considering claims for permanent partial disability benefits in excess of the employee's percentage of permanent physical impairment, the Commission may take into account, in addition to the percentage of permanent physical impairment, such factors as the employee's age, education, work experience, and other matters reasonably expected to affect her future earning capacity. Ark. Code Ann. § 11-9-522(b)(1) (Repl. 2002).
In the present matter, the claimant is only age 43 and a high school graduate. The claimant's work history consists of some manual labor and she was able to attend school and earn licensing in the field of radiology. The claimant began working for the respondent-employer in 1990. The claimant's work for the respondents was occasionally stressful and required some manual labor. The parties stipulated that the claimant sustained a compensable injury to her neck and shoulders on December 4, 2006. At that time, the claimant's base pay was $29.61 hourly. Dr. Calhoun performed a discectomy and assigned the claimant a 10% anatomical impairment rating, which the respondents accepted and paid. Dr. Calhoun assigned the following permanent restrictions: "no lifting or carrying more than 25 pounds, no over the shoulder work, no bending or twisting at the waist, and must be allowed to change positions freely."
The claimant was eventually assigned a vocational counselor, Edie Nichols. The record demonstrates that the claimant cooperated with Ms. Nichols and pursued a number of job leads but had not been successful in finding a job as of the date of hearing. The record demonstrates that the claimant was a credible witness and was motivated to find work. The evidence also shows that work within the claimant's permanent restrictions was not available with the respondent-employer. None of the job leads pursued by the claimant would pay her pre-injury wages, at least at the entry level. When we consider the claimant's young age, her credible testimony, and her permanent work restrictions, the Full Commission finds that the claimant sustained wage-loss disability in the amount of 25%.
Based on our de novo review of the entire record, the Full Commission affirms the administrative law judge's opinion as modified. The Full Commission finds that the claimant sustained wage-loss disability in the amount of 25%. The compensable injury was the major cause of the claimant's disability and impairment. The claimant's attorney is entitled to fees for legal services in accordance with Ark. Code Ann. § 11-9-715(a) (Repl. 2002). For prevailing in part on appeal to the Full Commission, the claimant's attorney is entitled to an additional fee of five hundred dollars ($500), pursuant to Ark. Code Ann. § 11-9-715(b) (Repl. 2002).
IT IS SO ORDERED.
________________________________ A. WATSON BELL, Chairman
Concurring Opinion
I concur with the majority opinion finding that the claimant sustained 25% decrease in her wage earning capacity. I write separately to address the fact that the Administrative Law Judge erred in relying upon economic factors in analyzing the claimant's wage loss disability.
"Disability" is defined as an "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(8) (Supp. 2005). Thus, a claimant's disability to earn wages must be based upon the claimant's compensable injury in order to be entitled to workers' compensation benefits. When the claimant's compensable injury, her restrictions, together with her pre-injury wages, age, education, work history, motivation to return to work and all other factors which may affect claimant's wage earning capacity are considered I find that the claimant is prohibited from returning to work as a radiology technician since she cannot reach overhead, but that she has many transferable skills which will benefit her in the labor market. At the hearing, the Administrative Law Judge focused on the present economic conditions and the unemployment rate in Arkansas, and cited in her opinion the claimant's inability to secure employment despite the numerous jobs for which she has applied. Economic conditions are not a factor in determining workers' compensation benefits. While addressing whether a change in economic conditions would warrant a change in condition to request additional wage loss benefits, the Arkansas Court of Appeals stated in a 1982 decision; "If fluctuating economic changes are to be made a part of our formula in determining benefits, this is a policy question best left for our Arkansas General Assembly to address."Southern Wooden Box Co., v. Smith, 5 Ark. App. 14, 631 S.W.2d 620 (1982). The workers' compensation statutes underwent serious changes in both 1987 and 1993, yet economic conditions were never added to the formula for determining wage loss benefits. In a more recent decision, but still a pre-Act 796 case, the Arkansas Supreme Court held in Grimes v. North Am. Foundry, 316 Ark. 395, 872 S.W.2d 59 (1994) a claimant who had returned to work earning wages equal to or greater than his pre-injury wages suffered no wage loss disability when he was laid off for economic reasons.
Poor economic conditions are not a factor to consider when determining wage loss disability. The factors listed in Glass v. Edens, supra, and further enumerated in A.C.A. § 11-9-522(b)(1) consist of the permanent physical impairment, the claimant's "age, education, work experience, and other matters reasonably expected to affect his or her future earning capacity." Thus, wage loss benefits focuses on the claimant's capacity to earn, not the status of the economy which drives the number of jobs in the workforce. Claimant's capacity to earn should remain the same, regardless of the number of jobs available. Evaluating one's capacity to earn wages requires an individual assessment of one's own aptitude and skill without consideration of out-side, subjective and speculative factors which are not personal to the claimant and are not related to the claimant's compensable injury. In the present case, the claimant was 40 years old at the time of her injury, she graduated with honors from high school, she completed a two year program to become a radiology technician and she excelled in her work as a radiology technician to the extent that she was promoted to night supervisor. The claimant possess many transferable skills such as supervisor responsibility, computer literacy, payroll recording, assimilating and evaluating information, and she has a pleasant personality with excellent verbal and written communication. The claimant sustained a compensable cervical injury for which she sustained a 10% anatomical impairment and restrictions of no lifting over 25 pounds, no overhead or over shoulder lifting, no twisting and the ability to move freely. When these factors are weighed together with the claimant's young age, education, work experience, and motivation to return to work the record fails to support a finding that the claimant's wage earning capacity has been cut in half as found by the Administrative Law Judge. Claimant earned significant wages as a radiology technician and most of the jobs identified by Ms. Nichols pay at a much lower rate; therefore when I consider all the permissible wage loss factors I agree with the majority opinion finding that the claimant sustained a 25% wage loss disability.
_______________________________ Karen H. McKinney, Commissioner
DISSENTING OPINION
I disagree with the majority's reduction of the Administrative Law Judge's wage loss award from 50% to 25%. I find that the majority should have increased, not decreased the award, and therefore, I must respectfully dissent.
The wage-loss factor is the extent to which a compensable injury has affected the claimant's ability to earn a livelihood. Emerson Elec. v. Gatson, 75 Ark. App. 232, 58 S.W.3d 848 (2001). The Commission is charged with the duty of determining disability based upon a consideration of medical evidence and other matters affecting wage loss, such as the claimant's age, education, and work experience. Eckhardt v. Willis Shaw Exp., Inc., 62 Ark. App. 224, 970 S.W.2d 316 (1998). Objective and measurable physical or mental findings, which are necessary to support a determination of "physical impairment" or anatomical disability, are not necessary to support a determination of wage-loss disability. Arkansas Methodist Hosp. v. Adams, 43 Ark. App. 1, 858 S.W.2d 125 (1993). To be entitled to any wage-loss disability benefits in excess of permanent physical impairment, a claimant must first prove, by a preponderance of the evidence, that he or she sustained permanent physical impairment as a result of a compensable injury.Wal-Mart Stores, Inc. v. Connell, 340 Ark. 475, 10 S.W.3d 882 (2000). Other matters to be considered are motivation, post-injury income, credibility, demeanor, and a multitude of other factors. Glass v. Edens, 233 Ark. 786, 346 S.W.2d 685 (1961); Curry v. Franklin Electric, 32 Ark. App. 168, 798 S.W.2d 130 (1990); City of Fayetteville v. Guess, 10 Ark App. 313, 663 S.W.2d 946 (1984). The Commission may use its own superior knowledge of industrial demands, limitations, and requirements, in conjunction with the evidence, to determine wage-loss disability. Oller v. Champion Parts Rebuilders, Inc., 5 Ark. App. 307, 635 S.W.2d 276 (1982).
There is no question that Ms. Tanner is entitled to wage-loss disability. She has displayed high motivation to return to the work force and there are no impediments to this Commission determining the wage-loss amount based on the factors presented to this Commission. I find Ms. Tanner's pre-injury income is an important factor that needs to be considered among all of the other factors. See Taggart v. Mid-American Packaging, ___ Ark. App. ___, ___ S.W.3d ___ (April 29, 2009), where the Court remanded a case back to the Full Commission because of a failure to address the claimant's pre-injury income of more than $67,000.00 per year, compared to her "potential" income, where the mathematical difference was more than 50%, yet the Commission awarded only 25% wage-loss disability. Here, Ms. Tanner earned more than $60,000.00 per year before her injury. As of right now, she earns absolutely nothing. That is a 100% difference. Even assuming that Ms. Tanner continued to drive back and forth from Cabot to respondent's hospital for her, at most, seven hours of part-time work every other week, she would only be earning $5,460.00 per year, less the cost of gasoline for the twenty mile each way commute. That works out to be at least a 98.9% wage loss. Based either on her actual wage loss (100%) or her demonstrated wage loss (98.9%) her wage loss, based on the evidence as it now exists, supports a wage loss much higher than the 50% awarded by the Administrative Law Judge, and certainly more than the 25% awarded by the majority.
For the aforementioned reasons I must respectfully dissent.
______________________________ PHILIP A. HOOD, Commissioner