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Cooper v. University of Arkansas for Medical Sciences

Court of Appeals of Arkansas, Division II

February 1, 2017




          M. Keith Wren, for appellant.

          Charles H. McLemore Jr., for appellee.

          BRANDON J. HARRISON, Judge

         Graylon Cooper appeals the decision of the Arkansas Workers' Compensation Commission (the Commission), which found that he did not prove that he was permanently and totally disabled but awarded him a 23 percent wage-loss disability. He argues that the Commission's decision is not supported by substantial evidence. We affirm.

         Cooper, a surgical technician at UAMS, injured his back while transferring a patient from the operating table to a stretcher in May 2011. UAMS accepted the injury as compensable and paid for medical and indemnity benefits. Cooper underwent an anterior cervical discectomy and fusions at C5-6 and C6-7 in August 2012 and was released with an 11 percent impairment rating. UAMS accepted and paid permanent partial-disability benefits based on the 11 percent impairment rating.

         In September 2015, an administrative law judge (ALJ) held a hearing to determine Cooper's entitlement to permanent total disability or, in the alternative, a wage-loss disability in excess of 11 percent. At the hearing, Cooper testified that he had a bachelor's degree in pre-med zoology, an associate's degree in surgical technology, and had attended one year of medical school. He testified that since his surgery, he still has pain and blood pressure issues. He said that on an ordinary day his pain level is a nine on a scale from one to ten. He explained that he is on a number of medications that make him drowsy, affect his memory and his ability to concentrate, and render him unable to drive. He testified that he did nothing most days except watch television. He did admit, however, that he had been able to take a seven-hour round trip to Mississippi and had traveled to Louisiana and played slot machines for about an hour.

         Cooper said that he would prefer to be working but that he cannot work for more than an hour at a time. He agreed that he could perform a job where all he had to do was sit and answer the phone but then said he could not hold conversations with people because of his medications. He said that he underwent a functional capacity evaluation (FCE) in July 2015 after having to cancel two previous FCEs due to his high blood pressure. He stated that he was "educated to do a lot of jobs" and insisted that he would "love" to go back to work.

         Cooper's wife, Narvelia, testified that Cooper had been energetic and active before his injury but is completely inactive now. She testified that if he could work, he would, and that he had expressed a desire to go back to work. She also said that he has ongoing problems with pain and that his medication affected his ability to communicate and stay awake.

         Heather Taylor, an educational rehabilitation counselor, testified that she met with Cooper in June 2015; however, she did not conduct any job search for him at that time because "he had resigned himself to not going back to work in the future and didn't have any plans to look for a job in the future." She completed a vocational-rehabilitation evaluation report based on Cooper's educational and work-history background but did not have an FCE to assist her.

         She spoke to Cooper again in August 2015 on the telephone and attempted to set up a meeting with him, but Cooper placed her on hold and never came back to the phone. According to Taylor, she called back a couple of times and never got an answer; she also sent a follow-up letter but never received a response. Taylor prepared another report on August 26 and noted his failure to communicate with her. She also noted that his FCE indicated that he can perform sedentary work but cannot work an eight-hour shift. She concluded that Cooper had an excellent work history and educational background and had acquired a strong skill set but that "there may be an issue with his medications possibly causing him to be not fully coherent." Taylor testified that she had not performed any labor-market research taking into account the limitations revealed by the FCE but opined that "his options will be extremely limited."

         In addition to reviewing the above testimony in his written order, the ALJ also reviewed the medical evidence presented at the hearing. Dr. Zachary Mason, who performed Cooper's surgery, opined in October 2012 that Cooper could return to work and assessed his impairment rating at 11 percent to the body as a whole. A 2013 neurology report signed by Dr. Bradley Boop noted that "nerve conduction studies and EMG recordings in the right upper extremity are unremarkable. There is no evidence of an underlying radiculopathy and there are no myopathic changes."

         In January 2014, Dr. Jay Holland, Cooper's general physician, opined that Cooper had been "rendered disabled due to cervical disc diseases, cervical nerve pain post injury and right arm hemiplegia." He also stated that any belief that Cooper would rather bankrupt his family than work is "completely wrong." Also in January 2014, Dr. Carl Covey, a pain-management physician, stated that Cooper's "pain level is sufficient enough that it is my recommendation that he does not work at this time." In December 2014, Covey opined that Cooper "could foreseeably attempt to return to some sort of employment but his prospects are dim as he continues to complain of significant pain and requires medication for the pain that could certainly ...

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