APPEAL FROM THE ARKANSAS WORKERS' COMPENSATION COMMISSION. NO. F509124.
Frederick S. " Rick" Spencer, for appellant.
Micheal Alexander, for appellees.
WHITEAKER and VAUGHT, JJ., agree.
RITA W. GRUBER, Judge.
George Thompson appeals the December 2013 decision of the Arkansas Workers' Compensation Commission regarding his claim for additional benefits related to his 2005 compensable back injury. As his first point, he contends that the Commission disregarded overwhelming evidence of his permanent and total disability. Second, and alternatively to the first point, he contends that the ten-percent wage-loss award is unsupported by substantial evidence and ignores his complete loss of earning potential. Third, he contends that substantial evidence does not support the Commission's finding that his impairment rating to the body as a whole is merely five percent. Fourth and last, he challenges the constitutionality of the Arkansas Workers' Compensation Act. We reverse and remand for further findings on point 3, remand for further consideration of point 2, and affirm points 1 and 4.
Thompson sustained his compensable injury in April 2005 while working in Good Samaritan Village's maintenance department and while lifting a large television. After receiving conservative care and pain-management treatment from various physicians, he was granted a change of physician to neurosurgeon Dr. Rebecca Barrett-Tuck and saw her in a July 2006 office visit. Respondents did not accept a ten-percent permanent partial-impairment rating to the body as a whole assigned by Dr. Barrett-Tuck on September 16, 2008.
At a May 1, 2013 hearing before an administrative law judge, the parties stipulated that maximum medical improvement had been reached and the healing period had ended on September 16, 2008. Controverted issues at the hearing included the ten-percent permanent partial impairment rating assigned by Dr. Barrett-Tuck, additional medical treatment, and permanent and total disability. Live testimony was given by Thompson; Mike Magee, his friend, bowling and golfing companion, and pharmacist; Bill Koop, Thompson's neighbor; and Anita Hall, whom Thompson described as his " significant other." Thompson's medical records,
a vocational evaluation by Bob White, and depositions by Thompson and Dr. Barrett-Tuck were also introduced into evidence. In his request for medical treatment, Thompson explained that he had been unable to undergo any back surgery because of an abdominal aneurysm and that he was receiving treatment for pain management from his personal physician, Dr. Tim Paden.
In a written decision, the law judge found that Thompson did not meet his burden of proof that surgery was reasonable and necessary or that he was permanently and totally disabled. The law judge found that Thompson had proved entitlement to additional pain management, including prescription medication and rhizotomies, as reasonable and necessary medical treatment; a permanent partial-impairment rating of five percent to the body as a whole; and ten-percent wage-loss-disability benefits over and above the five-percent impairment rating. The Commission adopted and affirmed the law judge's decision.
I. Denial of Claim for Permanent and Total Disability
II. Wage-Loss Award of Ten Percent
Permanent total disability is defined by statute as the inability, because of compensable injury or occupational disease, to earn any meaningful wages in the same or other employment. Ark. Code Ann. § 11-9-519(e)(1) (Repl. 2012). The employee bears the burden of proving the inability to earn any meaningful wage. Ark. Code Ann. § 11-9-519(e)(2) (Repl. 2012). In considering claims for permanent partial-disability benefits in excess of the percentage of permanent physical impairment, the Commission may take into account such factors as the employee's age, education, work experience, and other matters reasonably expected to affect his or her future earning capacity. Ark. Code Ann. § 11-9-522(b)(1) (Repl. 2012). The wage-loss factor is the extent to which a compensable injury has affected the claimant's ability to earn a livelihood. Cross v. Crawford Cnty. Mem'l Hosp., 54 Ark.App. 130, 923 S.W.2d 886 (1996). Thompson contends that his compensable back injury rendered him permanently and totally disabled. Alternatively, he argues that the ten-percent wage-loss award is far too low and that an award of at least seventy-five percent is more reasonable.
Thompson points to the opinion of Dr. Barrett-Tuck that he is permanently and totally disabled and the opinion of Bob White that no jobs are available if he cannot work at Good Samaritan; the continuation of his intractable pain despite extensive conservative treatment; all remaining medical records; and his and Magee's testimony that he (Thompson) cannot sustain prolonged standing or walking and is unable to engage in work or activities such as golfing and bowling due to his pain, numbness, and need for pain medication. He asserts that all his work experience involved physical labor that he now cannot perform; his physical ability declined after his injury until he simply could not continue; and his chronic pain and the medical findings corroborate the opinions of Dr. Barrett-Tuck and Mr. White and the Social Security Administration's finding that he is permanently and totally disabled. He asserts that any lack of motivation he may have about returning to work is natural and cannot reasonably be held ...