Opinion
CLAIM NO. F412414
OPINION FILED MARCH 10, 2011
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE SILAS H. BREWER, Attorney at Law, Hobe Sound, Florida.
Respondent represented by the HONORABLE MICHAEL RYBURN, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed.
OPINION AND ORDER
The claimant appeals an administrative law judge's opinion filed August 26, 2010. The administrative law judge found that the claimant did not prove she was permanently and totally disabled. The administrative law judge found that the respondents were entitled to an offset in accordance with Ark. Code Ann. § 11-9-411(a). After reviewing the entire record de novo, the Full Commission affirms the administrative law judge's opinion.
I. HISTORY
Carla Tabieros Sechler, now age 44, testified that she had a high school education. Ms. Sechler testified that she had served in the military, and that she had taken culinary art classes while stationed in Hawaii. After being discharged from the military, the claimant moved to Louisiana and worked for a fire safety equipment company. The claimant moved to Arkansas two to three years later and worked part-time as a secretary and bookkeeper.
The claimant testified that she became employed at Northwest Airlines in July 1998. The claimant testified, "I was a customer service agent, which, in a small town — in a small airport meant basically all aspects of the airport. We loaded and unloaded the planes, we sold the tickets, we boarded the plane, we unboarded the plane, we cleaned the plane, we drove the planes back, and then we would be on ground crew sending the planes out, and we would act as mechanics pushing the planes back. And we did all aspects of the airport."
The parties have stipulated that the claimant sustained a compensable elbow injury on January 30, 2004. The claimant testified, "January I loaded up an aircraft — unloaded an aircraft. . . .and the cargo door would not open. . . . When I was finally able to open the door, my left hand was controlling the door, and my right hand was pushing the luggage back. The door went completely down, and I hit my funny bone on the rim of the aircraft."
Dr. Edward R. Weber informed the respondent-carrier on March 3, 2004, "Carla Tabieros is a 37-year-old customer service agent with Northwest Airlines. She states that she struck her left elbow on an aircraft bin at work on 01/30/04. She has had numbness and tingling in her left ring and small fingers since that time. . . . A nerve conduction and EMG study shows severe involvement of the ulnar nerve just above the medial epicondyle. I believe she requires an exploration and neurolysis of the ulnar nerve for which she is scheduled in the near future."
Dr. Weber performed a "Neurolysis of the ulnar nerve through the cubital tunnel" on March 9, 2004. The post-operative diagnosis was "Ulnar compression neuropathy of the elbow." The claimant testified that the condition of her left arm worsened after surgery by Dr. Weber.
Dr. Reginald J. Rutherford provided an EMG Report on June 29, 2004 and noted, "The nerve conduction study is abnormal demonstrating left cubital tunnel syndrome of moderate severity. Change is localized to the level of the medial epicondyle. The predominant problem present is segmental demyelination. . . . Submuscular transposition of the left ulnar nerve is recommended." Dr. Michael M. Moore evaluated the claimant's left elbow on July 9, 2004 and stated, "It was my opinion the most appropriate treatment would be a left cubital tunnel release with intramuscular transposition of the ulnar nerve."
The claimant testified that she was unable to work for the respondents after August 2004. The claimant was granted a change of physician from Dr. Weber to Dr. F. Richard Jordan on August 17, 2004. Dr. Jordan began treating the claimant on October 26, 2004 and tentatively scheduled "a trial of epidural stimulation with the implantation of a posterior cervical electrode on November 9, 2004 and possibly conversion to a permanent stimulator if that is successful, on November 11, 2004."
Dr. Jordan performed a "Cervical laminotomy for implantation of epidural electrode" on November 9, 2004." Dr. Jordan performed an "Implantation of implantable pulse generator for spinal cord stimulation" on November 11, 2004. The pre- and post-operative diagnoses were "Complex regional pain syndrome of the left upper extremity." The parties have stipulated that the claimant "sustained reflex sympathetic dystrophy as a compensable consequence of her compensable elbow injury." The claimant testified that her condition partially improved following the November 2004 stimulator procedure.
The claimant's testimony indicated that she began receiving social security disability benefits in about August 2005. Dr. Jordan performed a "Cervical laminotomy and replacement epidural electrode" on April 11, 2006. The pre- and post-operative diagnosis was "Complex regional pain syndrome of the left upper extremity with epidural stimulator malfunction." The parties have stipulated that the claimant "reached maximum medical improvement and the end of her healing period on August 16, 2006."
The parties deposed Dr. Jordan on February 27, 2007. The respondents' attorney questioned Dr. Jordan:
Q. So, you don't think she can ever go back and be a baggage handler or a claim agent like for Northwest Air Lines?
A. No. . . .
Q. Do you feel like she'll have some permanent impairment to the left extremity because of this condition?
A. Yes. . . .
Q. Based on your knowledge of this patient, are there other jobs that she could do if she did not have to use her left extremity?
A. Yes. I'm sure that if somebody learned ten-key, adding or something like that with one hand, that — but it would be completely impossible for her to handle baggage with that arm.
Q. Okay. So, you've precluded her from returning to that job that she was doing, and probably permanently; is that right?
A. Yes.
Q. But as far as there are some other things that she could do, is there a point at which you think that she could have — if she was vocationally retrained or something to do something without using that extremity, is there a point in time when you would have allowed her to do that?
A. Yes. But I'd have to look back and see. I'm not sure about that, either. . . .
Dr. Jordan informed the claimant's attorney on September 7, 2007, "According to the AMA guides to the Evaluation of Permanent Impairment, page 482 table 16-10, she has a grade I sensory impairment of 90%, grade I motor impairment of 90% from page 484 table 16-11 of the left upper extremity, which converts to a combined deficit of 45% from page 490 table 16-15. Therefore, Mr. Tabieros receives a whole body impairment rating of 27%."
A pre-hearing order was filed on January 15, 2008. The claimant contended, among other things, that she was entitled to temporary total disability benefits from August 2004 until September 6, 2007. The claimant contended that she was entitled to a 45% permanent impairment rating issued by Dr. Jordan on September 7, 2007. The respondents contended, among other things, that Dr. Jordan's 45% rating was invalid. The respondents contended that they were "entitled to an offset for long-term disability benefits paid to the claimant and these long-term disability benefits would provide credit against any TTD benefits that might be awarded."
A hearing was held on March 27, 2008. At that time, it was stipulated that "3. The claimant's long-term disability payments fit within one of the categories of insurance payments for which a credit/offset is provided under Ark. Code Ann. § 11-9-411." The respondents' attorney questioned the claimant at the March 27, 2008 hearing:
Q. Now, Northwest Airlines has good benefits for their employees, and you've had some kind of a long-term disability policy. Is that right?
A. That's correct.
Q. And I think we've talked about the amount of that, but, just to get it in the record, I believe the amount you told me in your deposition that you were getting per month was $2,550. Does that sound right?
A. That is correct, after a waiting period of — I can't remember. After utilizing all of your on-the-job injury hours.
Q. You got some kind of a sick pay up front, or some kind of a pay from Northwest Airlines? No?
A. They never paid me for visiting the doctors and the hours that are still on the books. I think it's close to 680 hours. They stopped paying my income when I would go see Weber. Michael Moore, or whoever Laura sent me to — my primary care physician, the MRI. They stopped paying for time off.
Q. Did your long-term disability then start sometime after August of 2004?
A. I believe so. There was a six — I believe there was a six-month waiting period.
Q. Is that from the date of the injury, or is that from the date of you not working?
A. The day I was last working.
Q. And what kind of income did you have during that period of time?
A. None. . . .
Q. But, after long-term disability kicked in, they paid you continuously until you got on social security disability?
A. I collected social security before I collected long-term disability. . . .
Q. Ms. Tabieros, is long-term disability still paying you anything?
A. Yes, it does.
Q. And is social security still paying?
A. Yes. . . .
Q. Has your condition gotten better or worse?
A. I think it has gotten a little worse, because the hand still turns blue, compared to the other one, and it is harder to move the fingers. . . .
An administrative law judge filed an opinion on May 12, 2008. The administrative law judge found, in pertinent part:
4. The claimant's long-term disability fits within one of the categories of insurance payments for which a credit/offset is provided under Arkansas Code Annotated § 11-9-411. The respondents are therefore entitled to an appropriate dollar-for-dollar offset under Ark. Code Ann. § 11-9-411(a) for long-term disability benefits already received by the claimant for the period of temporary total disability compensation awarded herein. . . .
6. The claimant proved . . . that she is entitled to temporary total disability benefits from August 3, 2004, through August 16, 2006, but failed to prove . . . that she remained within her healing period after August 16, 2006.
Dr. Jordan informed the claimant's attorney on November 15, 2008, "Using the AMA Guides to the Evaluation of Permanent Impairment, fourth edition, we give her [a] permanent impairment rating of 30%. This is based on Table 15, p. 54 which gives her a 50% impairment of the upper extremity, and Table 3 on page 20, which converts this to a 30% of the whole body. Of course this rating is of August 2007. She has since moved to Texas and we have not seen her in the clinic. She has called, however, on several occasions, and recently indicated that her epidural stimulator has ceased functioning."
The parties deposed Dr. Jordan on November 16, 2009. The claimant's attorney questioned Dr. Jordan:
Q. Now, you've told us that this lady has a 60-percent impairment to her left arm as a result of her injury?
A. Yes.
Q. I want you to tell me whether, in your opinion, based on your experience of 29 years in your neurosurgical practice, hundreds, if not thousands of patients, whether, in your opinion, this lady's injury is severe enough to cause her to be vocationally unable to work?
A. The patient is not able to do the job that she had, pure and simple. In the first place, they would not hire a person who basically could only use one hand. If she were to work a desk at an airline, she would have to use both hands on a keyboard. She can't do it. If she were to move luggage — she's not large. I just traveled this weekend and my bag weighed 48 pounds and the girls used both hands to move my bag.
Q. Sure.
A. She couldn't do that. Now, there may be something she could do, that she could do with one hand. She could answer a phone. You know, you can answer a phone with one hand, hold it on your shoulder, if you have to dial, but you have to take into account that basically this hand not there. The left hand is nonfunctional.
Q. So it's virtually useless?
A. Virtually useless. . . . she does almost nothing with it. . . . I watch her when she handles her purse, and I watch her in the way she handles a cell phone and so forth when she's in the office and she doesn't do much at all with that hand.
Q. Right. Now, how do you know she's not contriving that? I mean, just use your —
A. Yes. Well —
Q. You're an experienced clinical practitioner and —
A. Yeah. Well, in the first place, unless she had done a lot of study, she would almost have to be a neurologist to know which fingers would be involved and what posture to hold them, and the fact that the — this one is not involved —
Q. You're pointing to —
A. The index finger and the thumb —
Q. All right.
A. — are not involved in the ulnar problem, you see, and so she can —
Q. She can use those?
A. She can use those to some extent.
Q. But she can't use the other finger?
A. But the other she can't use because she can't straighten them out. . . .
The respondents' attorney questioned Dr. Jordan:
Q. Now, she has basically little or very little use of her left arm; is that correct?
A. That's right.
Q. Is there anything wrong with her right arm?
A. Not much. I mean, it's essentially okay.
Q. And for purposes of this claim, we had the left arm injury, which was confined to the elbow and the left arm, but I guess my point is, is she right-handed or left-handed?
A. Right-handed.
Q. So she can use her right hand and I guess write and do the things you normally do when you're dependent on a — a right-handed person. Her disability, then, or her impairment is because of her inability to use her left arm; is that correct?
A. Yes.
Q. If we could find her something to do that she could do right-handed, just like you mentioned, answer the telephone, or telephone sales or something like that, is that something she could physically do?
A. I said that before, yes.
Q. And she has no mental impairment that you know of; is that correct?
A. That's right.
Q. Or her legs are okay. She can walk and do anything with other parts of her body except her left arm?
A. Yes. . . .
Q. Is there some other doctor that is prescribing her medications or how do you handle that?
A. She has been seeing Dr. Karla Cepeda in Houston.
Q. Okay. And that's somebody to manage, locally, her medications and such?
A. Yes.
Q. Is there anything that you are prescribing for her while — during this interval, when she's not been seeing you real frequently?
A. I did not write prescriptions when she was here, and we have not — the last thing that I see was in `07. . . .
A pre-hearing order was filed on April 12, 2010. The claimant contended, among other things, that she had sustained "permanent physical impairment to the ulnar nerve of the left arm in the magnitude of 60% to the left arm, and as a result is permanently and totally disabled from gainful employment." The claimant contended that the respondents were "not entitled to Ark. Code Ann. § 11-9-411 credit because the claimant paid for a portion of the premiums payable for her group disability insurance plan."
The respondents contended that the claimant was "not PTD. She has a scheduled injury. The prior decision of the Commission is res judicata on an impairment rating for RSD, the constitutional argument on considering pain in determining impairment, and regarding application of Ark. Code Ann. § 11-9-411 to the benefits in this claim. . . .The employer paid for the group disability policy and a credit is in order or in the alternative a credit in the ratio of who paid what is in order."
A hearing was held on June 29, 2010. The claimant testified that she was unable to prepare food at home because of the condition of her left hand. The claimant testified that she was unable to use a washcloth or grasp objects with her left hand. The claimant testified that she was unable to safely drive a motor vehicle while her spinal stimulator was operating. George Sechler, the claimant's husband, testified that the claimant took Hydrocodone and Darvocet for pain associated with the compensable arm injury. Mr. Sechler testified that the claimant also took medication for sleep, Ibuprofen, and Tylenol.
An administrative law judge filed an opinion on August 26, 2010. The administrative law judge found, among other things, that the claimant sustained a 50% impairment to the left upper extremity caused by the ulnar nerve injury. Neither party appeals that finding. The administrative law judge found that the claimant failed to prove she was permanently and totally disabled as a result of her compensable injury. The administrative law judge found that the respondents were entitled to an offset in accordance with Ark. Code Ann. § 11-9-411(a).
The claimant appeals to the Full Commission.
II. ADJUDICATION
A. Permanent Total Disability
Ark. Code Ann. § 11-9-521(Repl. 2002) provides, in relevant part:
(a) An employee who sustains a permanent compensable injury scheduled in this section shall receive, in addition to compensation for temporary total and temporary partial benefits during the healing period or until the employee returns to work, whichever occurs first, weekly benefits in the amount of the permanent partial disability rate attributable to the injury, for that period of time set out in the following schedule:
. . . .
(g) Any employee suffering a scheduled injury shall not be entitled to permanent partial disability benefits in excess of the percentage of permanent physical impairment set forth above except as otherwise provided in § 11-9-519(b).
Ark. Code Ann. § 11-9-519(e) (Repl. 2002) provides:
(1) "Permanent total disability" means inability, because of compensable injury or occupational disease, to earn any meaningful wages in the same or other employment.
(2) The burden of proof shall be on the employee to prove inability to earn any meaningful wage in the same or other employment.
A claimant who sustains a scheduled injury is limited to the applicable allowances set forth in Ark. Code Ann. § 11-9-521, and such benefits cannot be increased by considering wage-loss factors absent a finding of permanent total disability. Federal Compress Warehouse Co. v. Risper, 55 Ark. App. 300, 935 S.W.2d 279 (1996).
An administrative law judge found in the present matter, "11. The claimant has failed to establish by a preponderance of the evidence that she is permanently and totally disabled as a result of her compensable ulnar nerve injury and/or her compensable reflex sympathy (sic) dystrophy condition." The Full Commission affirms this finding. The claimant is only age 44 and has a high school education. The claimant is a veteran with experience in food service and bookkeeping work. The claimant began working for the respondent-employer in 1998. The claimant's job entailed handling "all aspects" of a small airport, including loading and unloading airplanes. The parties stipulated that the claimant sustained a compensable elbow injury on January 30, 2004. The claimant testified that she hit her left-arm "funny bone" on the rim of an aircraft while she was unloading luggage.
Dr. Weber performed an ulnar compression neuropathy of the claimant's elbow in March 2004. The claimant testified that her condition of her left arm worsened as a result of this procedure. Dr. Jordan performed a cervical laminotomy in order to implant an epidural electrode in November 2004. The parties have stipulated that Dr. Jordan's treatment was related to a compensable consequence of the claimant's injury, namely, reflex sympathetic dystrophy. The claimant reported some improvement following the November 2004 procedure. Dr. Jordan performed another laminotomy in April 2006. Dr. Jordan eventually assigned a 50% impairment of the claimant's upper extremity, and the parties do not appeal the administrative law judge's finding that the claimant "sustained a 50% impairment to the left upper extremity caused by her ulnar nerve injury."
The parties deposed Dr. Jordan on February 27, 2007 and November 16, 2009. Dr. Jordan testified on both occasions that the claimant could not return to work as a baggage handler for the respondent-employer. However, Dr. Jordan opined on February 27, 2007 that there were other jobs the claimant could perform without use of her left upper extremity, such as "ten-key" work. Dr. Jordan agreed that the claimant could be vocationally retrained. Dr. Jordan testified on November 16, 2009 that the claimant could answer a telephone and that the claimant had some use of her left hand. Dr. Jordan agreed that the claimant's impairment was related to her left arm only and that the claimant was right-handed.
The Full Commission affirms the administrative law judge's finding that the instant claimant did not prove she was permanently totally disabled. Although she has apparently not worked for any employer since August 2004, the claimant did not prove by a preponderance of the evidence that she was unable to earn any meaningful wage in the same or other employment. The claimant has been receiving social security disability benefits since August 2005. The evidence before the Commission demonstrates that the claimant is not motivated to seek vocational re-training or to look for employment within her permanent physical restrictions. The Commission can consider the claimant's lack of motivation in assessing her entitlement to permanent total disability. City of Fayetteville v. Guess, 10 Ark. App. 313, 663 S.W.2d 946 (1984).
Additionally, Dr. Jordan testified that he had not prescribed medication for the claimant since 2007 and that the claimant's medication was being managed by a local physician. The Full Commission does not find that the claimant's apparent prescriptions to medicines such as Hydrocodone and Darvocet are an impediment to the claimant seeking meaningful employment within her permanent physical restrictions. We affirm the administrative law judge's finding that the claimant did not prove she was permanently totally disabled. The claimant did not prove she was entitled to permanent benefits in excess of the 50% anatomical impairment to her left upper extremity.
B. Effect of payment by other insurers
Ark. Code Ann. § 11-9-411(Repl. 2002) provides:
(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.
Ark. Code Ann. § 11-9-411(a) (Repl. 2002) does not specify that a policy or plan must be funded solely by the employer before an offset can occur. Dooley v. Automated Conveyor Sys., Inc., 84 Ark. App. 412, 143 S.W.3d 585 (2004).
The Full Commission first notes the parties' agreed stipulation at the March 27, 2008 hearing that the claimant's long-term disability benefits "fit within one of the categories of insurance payments for which a credit/offset is provided under Ark. Code Ann. § 11-9-411." In an opinion filed May 12, 2008, an administrative law judge awarded temporary total disability benefits from August 3, 2004 through August 16, 2006. The administrative law judge also found that the respondents were "entitled to an appropriate dollar-for-dollar offset under Ark. Code Ann. § 11-9-411(a) for long-term disability benefits already received by the claimant for the period of temporary total disability benefits awarded herein. . . ." Neither party appealed the administrative law judge's May 12, 2008 opinion.
The legislature amended Ark. Code Ann. § 11-9-411 in 2009 as follows:
(2) The reduction specified in subdivision (a)(1) of this section does not apply to any benefit received from a group policy for disability if the injured worker has paid for the policy.
The instant claimant therefore contends that the offset provision of Ark. Code Ann. § 11-9-411(a) does not apply to those benefits the claimant received "as a direct result of her own personal payments of the premiums which generated those benefits." The Commission recognizes that changes in statutes relating only to remedies or procedural matters are generally held to be immediately applicable to existing causes of action and not just to those which may accrue in the future unless a contrary intent is expressed in the statute. Arkansas State Police v. Welch, 28 Ark. App. 234, 772 S.W.2d 620 (1989), citing Fowler v. McHenry, 22 Ark. App. 196, 737 S.W.2d 663 (1987). However, any changes in statutes relating to vested rights are characterized as substantive and require application of the law as it existed at the time the claimant sustained a compensable injury. See id. A vested right exists only when the law declares that one has a claim, or that one may resist enforcement of a claim. Forrest City Mach. Works, Inc. v. Aderhold, 273 Ark. 33, 616 S.W.2d 720 (1981).
In the present matter, the Full Commission finds that Ark. Code Ann. § 11-9-411(a) (Repl. 2002) gave the respondents a vested right to reduce the claimant's benefits in an amount equal to, dollar-for-dollar, the amount of benefits the claimant had received for the same period of disability. See Dooley, supra. We reiterate the parties' stipulation in 2008 that the respondents were entitled to a dollar-for-dollar offset in accordance with Ark. Code Ann. § 11-9-411(a) for long-term disability benefits already received by the claimant for the period of temporary disability benefits awarded. The Full Commission finds that the respondents have a substantive vested right to a dollar-for-dollar offset for the permanent disability benefits received by the claimant. The Full Commission finds that the 2009 amendment to Ark. Code Ann. § 11-9-411 was a substantive change and requires application of the law as it existed at the time of the 2004 compensable injury. Therefore, the respondents are entitled to an appropriate dollar-for-dollar offset in accordance with Ark. Code Ann. § 11-9-411(a) (Repl. 2002).
Based on our de novo review of the entire record, the Full Commission affirms the administrative law judge's finding that the claimant proved she sustained a 50% anatomical impairment to her left upper extremity as a result of the compensable injury. The Full Commission affirms the administrative law judge's finding that the claimant did not prove she was permanently totally disabled. We affirm the administrative law judge's finding that Ark. Code Ann. § 11-9-411(a) (Repl. 2002) applies to the claimant's permanent impairment benefits and that the respondents are entitled to the statutory offset for the benefits the claimant received for her group disability insurance policy.
The claimant's attorney is entitled to fees for legal services in accordance with Ark. Code Ann. § 11-9-715(Repl. 2002). Because the claimant has not prevailed on appeal to the Full Commission, her attorney is not entitled to an additional fee pursuant to Ark. Code Ann. § 11-9-715(b) (Repl. 2002).
IT IS SO ORDERED.
____________________________ A. WATSON BELL, Chairman
____________________________ KAREN H. McKINNEY, Commissioner
CONCURRING AND DISSENTING OPINION
I must concur, in part, and dissent, in part, from the majority opinion. Specifically, I concur in the finding that the claimant sustained a 50% impairment to the left upper extremity. However, the majority finds that the claimant failed to establish by a preponderance of the evidence that she is permanently and totally disabled as a result of her compensable ulnar nerve injury and/or her compensable reflex sympathetic dystrophy condition. The majority also finds that the reduction in workers' compensation benefits provided for in Ark. Code Ann. § 11-9-411(a) applies to the award of benefits herein, even though the claimant paid one-half of the premiums for a group disability insurance policy. After a de novo review of the record, I would award the claimant permanent and total disability benefits; therefore, I must respectfully dissent from the majority on this issue. Also, I believe strict construction requires a finding that the respondent does not receive an offset under Ark. Code Ann. § 11-9-411(a), and must dissent on this issue, as well.
History
The claimant sustained an admittedly compensable left elbow injury on January 30, 2004, when she struck her elbow on an airplane while unloading the airplane at work. Through a course of treatment and referrals, Dr. Edward Weber performed ulnar nerve neurolysis surgery on March 29, 2004. The claimant later came under the care of Dr. F. Richard Jordan, who diagnosed her with reflex sympathetic dystrophy on October 26, 2004. Dr. Jordan treats the claimant's reflex sympathetic dystrophy with an implanted epidural stimulator for pain control. On November 15, 2008, Dr. Jordan rated the claimant with a 50% impairment to the left upper extremity. Dr. Jordan testified in deposition on November 16, 2009. In the deposition, the doctor defended the 50% rating to the ulnar nerve, stating that the claimant has "no appreciable ulnar function." Describing the claimant's arm condition, the doctor stated: "The hand is drawn and she's unable to get it out open. She does not use the arm. She's got suppression of the reflexes in that arm. The hand is smaller than the other." Dr. Jordan testified that the left hand was "nonfunctional" and "virtually useless."
Permanent Total Disability
Permanent total disability is defined as inability, because of compensable injury or occupational disease, to earn any meaningful wages in the same or other employment. Ark. Code Ann. § 11-519 (e)(1). The burden of proof shall be on the employee to prove inability to earn any meaningful wage in the same or other employment. Ark. Code Ann. § 11-519 (e)(2). The same factors considered when analyzing wage-loss disability claims are usually considered when analyzing permanent and total disability claims. See Ark. Code Ann. § 11-9-519 (c); Rutherford v. Mid Delta Community Services, Inc. ____ Ark. App. ___, ___ S.W.3d ___ (2008). Such factors include the worker's age, education, work experience, medical evidence and any other matters which may reasonably be expected to affect the worker's future earning power. Other factors include motivation, post injury income, credibility, demeanor, prior work history and education. Glass v. Edens, 233 Ark. 786, 346 S.W.2d 685 (1961); City of Fayetteville v. Guess, 10 Ark. App. 313, 663 S.W.2d 946 (1984); Curry v. Franklin Electric, 32 Ark. App. 168, 798 S.W.2d 130 (1990), 54 Ark. App. 130, 923 S.W.2d 886 (1996).
Here, the claimant is a 43-year-old woman who has held a total of two full-time jobs, including her work at the small airline, in her adult lifetime. There is evidence that her injury has caused her to be unable to earn, in those employments, the wages she was earning at the time of her compensable injury. She has lifting restrictions and a non-functioning arm. Furthermore, the claimant is unable to drive a car, both because she cannot maneuver a steering wheel comfortably and safely, and also because an instruction manual regarding use of the neurostimulator advises against operation of a vehicle while the stimulator is turned on. This driving restriction disqualifies the claimant from the only other full-time employment she has ever held, which was a sales job involving state-wide travel in Louisiana.
Regarding the job at the airline, Dr. Jordan, the claimant's treating neurosurgeon, testified that the claimant's left hand and arm are non-functional and virtually useless, as a result of her compensable ulnar nerve injury. Dr. Jordan further stated, in response to questioning regarding the claimant's functional unemployability that:
Q. I want you to tell me whether, in your opinion, based on your experience of 29 years in your neurological practice, hundreds, if not thousands of patients, whether, in your opinion, this lady's injury is severe enough to cause her to be vocationally unable to work?
A. The patient is not able to do the job that she had, pure and simple. In the first place, they would not hire a person who basically could only use one hand. If she were to work a desk at an airline, she would have to use both hands on a keyboard. She can't do it. If she were to move luggage — she's not large. I just traveled this weekend and my bag weighed 48 pounds and the girls used both hands to move my bag . . .[s]he couldn't do that. Now, there may be something she could do with one hand. She could answer a phone. You know you can answer a phone with one hand, hold it on your shoulder, if you have to dial, but you have to take into account that basically this hand is not there. The left hand is nonfunctional.
Additionally, the claimant takes a number of drugs for control of persistent pain not completely suppressed by her neurostimulator. These drugs are prescribed either by Dr. Jordan or by a local Houston physician with the permission of Dr. Jordan. These drugs, all of which are related to the claimant's arm injury, include Hydrocodone and Darvocet for pain, as needed; Temazepam for sleep-related to pain; Diazepam for anxiety related to arm pain; as well as Iboprofen and Naproxen Sodium as supplements to other pain relief medications. In considering the claimant's entitlement to permanent and total disability, I place great weight on the medical evidence showing the claimant's severe pain and the side effects associated with the narcotic pain medication she takes.See Whitlatch vs. Southern Development, 84 Ark. App. 399, 141 S.W.3d 916 (2004).
Evidence that the claimant is able to hold a telephone receiver with one hand is not enough evidence to overcome the preponderance of the evidence that the claimant has a non-functioning left arm and has to take quite a bit of pain medication in addition to the use of a neurostimulator to deal with her compensable reflex sympathetic dystrophy. As such, I find that the claimant has proved by a preponderance of the evidence that she is permanently and totally disabled.
Offset
Prior to the 2009 amendment, Ark. Code Ann. § 11-9-411(a) provided that:
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 . . .period of disability [from] . . .a group disability policy. . . .
The 2009 amendment added the following section to Ark. Code Ann. § 11-9-411(a)(1):
The reduction specified in subsection (a)(1) of this section does not apply to any benefit received from a group policy for disability if the injured worker has paid for the policy.
It is undisputed that the claimant received long-term disability benefits in an amount of $1,376.00 per month under a benefit plan funded jointly by the claimant and her employer, Northwest Airlines, Inc. It is also undisputed that the claimant paid one-half the total premium cost for this disability insurance coverage.
Ark. Code Ann. § 11-9-704(c) (Repl. 2002) requires strict construction of workers' compensation statutes. Strict construction requires that nothing be taken as intended that is not clearly expressed, and its doctrine is to use the plain meaning of the language employed. American Standard Travelers Indemnity Co. v. Post, 78 Ark. App. 79, 77 S.W.3d 554 (2002).
Under strict construction, the respondent is not entitled to any offset. Here, the claimant has paid for the policy. There is nothing in the statute allowing the respondent to take credit for half-paid policies. Any amount paid by the claimant means the claimant has "paid for the policy" according to Ark. Code Ann. § 11-9-411(a)(2).
Contrary to the majority, I do not find that the respondent had a vested right to take an offset from a benefit that did not even exist for the claimant on the date of injury. The respondents' right to take on offset vested on August 26, 2010, the date of the Administrative Law Judge's opinion awarding the claimant permanent disability benefits, well after the date of the 2009 amendment.
For the aforementioned reasons I must concur, in part, and dissent, in part, from the majority opinion.
______________________________ PHILIP A. HOOD, Commissioner