Columbia Health Care, Inc. v. Letha Anderson

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

CHIEF JUDGE JOHN B. ROBBINS

DIVISION I

COLUMBIA HEALTH CARE, INC.

APPELLANT

V.

LETHA ANDERSON

APPELLEE

CA 00-542

NOVEMBER 29, 2000

APPEAL FROM THE WORKERS'

COMPENSATION COMMISSION

[NO. E608110]

AFFIRMED

Appellee/cross-appellant Letha Anderson sustained a compensable injury to her back while working for appellant/cross-appellee Columbia Health Care on June 4, 1996. She received conservative treatment and reached maximum medical improvement on December 10, 1996. Thereafter, Columbia Health Care accepted as compensable a six percent permanent anatomical rating. However, Ms. Anderson sought additional compensation, including permanent and total disability benefits. After a hearing, the Workers' Compensation Commission found that Ms. Anderson had sustained fifty percent wage-loss disability, in addition to the six percent anatomical rating accepted by the appellant. Columbia Health Care now appeals, arguing that the Commission erred in awarding wage-loss disability

benefits. Ms. Anderson cross-appeals, arguing that the Commission erred in failing to find her permanently and totally disabled, and in limiting her permanentanatomical rating to six percent. We affirm on appeal, and affirm on cross-appeal.

When reviewing a decision of the Worker's Compensation Commission, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission's findings and affirm if the decision is supported by substantial evidence. High Capacity Prods. v. Moore, 61 Ark. App. 1, 962 S.W.2d 831 (1998). Substantial evidence is that evidence a reasonable mind might accept as adequate to support a conclusion. Mikel v. Engineering Specialty Plastics, 56 Ark. App. 126, 938 S.W.2d 876 (1997). A decision of the Commission is reversed only if we are convinced that fair-minded persons using the same facts could not reach the conclusion reached by the Commission. Id.

Ms. Anderson testified that she was born in 1927 and that she attended school through the fifth or sixth grade. As a result of her lack of education, she has difficulty reading and writing. She married in 1941, and has worked outside the home since that time. Ms. Anderson worked for a number of years as a maid in hotels and in private homes performing housekeeping work. She testified that she worked as a nurse's aid in a nursing home for about fifteen years prior to her injury. Ms. Anderson stated that, before her compensable injury, she had suffered one other back injury while working for the appellant, but that other than that she has never injured her back.

On June 4, 1996, Ms. Anderson was bathing a patient, and after she reached down for a towel and straightened up, she hurt her back. Ms. Anderson reported the injury to the nurse, discontinued working at the time, and has not worked since. After reporting to the emergency room that day, Ms. Anderson came under the care of Dr. Holladay, who thenreferred her to an orthopedic surgeon, Dr. Hilborn.

Ms. Anderson testified that her back continues to cause her pain, which extends down her left leg, and that she is unable to stand or sit for extended periods of time. She stated that as a result of her condition she can no longer perform her job as a nurse's aid. She acknowledged that she was offered a light-duty job by her employer, but stated she did not accept the job because her back and legs were bothering her, and that she had an unrelated kidney problem. Ms. Anderson also had cataract surgery on her eyes, and admitted that her other health problems contributed to her inability to return to work. She testified, "I do not know of any jobs that I could handle right now."

Elaine Smith, nursing home administrator for Columbia Health Care, testified on behalf of the appellant. She stated that Ms. Anderson's employment included patient care such as feeding, incontinent care, turning, repositioning, lifting, transporting by wheelchair, and bathing. Ms. Smith received a copy of a functional capacity evaluation that Ms. Anderson underwent in November 1996, and attempted to find employment duties within her physical restrictions. According to Ms. Smith, she offered Ms. Anderson a light-duty job that included passing out food and beverages to patients, sitting with patients who require constant monitoring, and helping with non-strenuous group activities such as bingo or dominoes. However, Ms. Anderson refused the job because "she did not feel like she could do it and wished to continue seeing a doctor." Another light-duty job offer was made in 1998, which was again refused. Ms. Smith testified, "If Ms. Anderson had accepted either our 1996 offer or our 1998 offer, her wages would have been equal to or perhaps higher thanwhat she earned at the time of her injury."

Gay Signoff, a vocational counselor, met with Ms. Anderson in September 1997 in an attempt to identify suitable employment. Ms. Signoff stated that, at that time, Ms. Anderson thought she might be able to perform home health care, light housekeeping, or be a sitter for patients in a hospital. Relying on the functional capacity evaluation, Ms. Signoff made twenty-three calls to potential employers. Of the twenty-three calls, two were identified as potential employers. These were jobs that required a sitter to watch over someone who was nearing death, and could not be considered permanent or steady employment. Moreover, neither one had an opening available, and Ms. Anderson never contacted those employers about potential employment opportunities.

The June 4, 1996, emergency room report indicated a lumbar strain and degenerative disk disease at L4-5. An MRI was conducted a week later, which revealed a large herniation at L3-4 and a possible herniation at L4-5. Dr. Hilborn examined and conservatively treated Ms. Anderson over the next several months, and he prepared the following office note on December 10, 1996:

Letha Anderson returns for follow-up. Since her last visit here, the patient has had a functional capacity evaluation with the functional capacity evaluation demonstrating the patient incapable of returning to work at her pre-injury job. The patient continues to have some periods of low back pain with associated leg pain, particularly when she is on her feet for more than a short period of time.

IMPRESSIONS AND RECOMMENDATIONS: I feel that the patient continues to have some symptomatology of spinal stenosis with nerve root impingement and I do not feel that the patient is capable of holding a job at the present time. Surgical decompression might be of some benefit to the patient as far as the relief of her leg pain, but the patient does not want to consider thisat this time. Without surgery, I feel the patient has reached maximum medical improvement.

On August 31, 1998, Dr. Hilborn authored the following letter to appellant's counsel:

At the time of Ms. Anderson's last visit with me on December 10, 1996, it was my feeling that she was incapable of returning to work at her pre-injury job. I felt that Ms. Anderson could possibly return to some type of work within the limitations of the functional capacity limitations, but was, for all practical purposes, probably not employable. I do not feel that the patient undergoing a work hardening program would have benefitted the patient in returning her to full or light duty work. It is my feeling that Ms. Anderson's degenerative and arthritic spine changes were probably 50% or more responsible for her symptomatology and need for treatment.

Dr. Hilborn initially assigned an eight percent permanent impairment rating, but later reduced it to six percent, explaining, "Assuming the degenerative changes in the patient's lumbar spine predated her injury, I feel that the degenerative changes can be deducted, and that the patient's partial permanent impairment would be 6% to the body."

Dr. Giller conducted an examination of Ms. Anderson and noted his impressions on April 30, 1999. Dr. Giller stated:

It is my impression that this patient has difficulty with pain of her back and left leg. It is my opinion that she is not able to carry out the duties required of her usual employment. It is my opinion that at most she could perform sedentary work.

For reversal of the fifty percent wage-loss disability award, Columbia Health Care cites Ark. Code Ann. § 11-9-522(b) (Repl. 1996), which provides:

(b)(1) 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 his future earningcapacity.

(2) However, so long as an employee, subsequent to his injury, has returned to work, has obtained other employment, or has a bona fide and reasonably obtainable offer to be employed at wages equal to or greater than his average weekly wage at the time of the accident, he shall not be entitled to permanent partial disability benefits in excess of the percentage of permanent physical impairment established by a preponderance of the medical testimony and evidence.

The appellant submits that permanent partial disability benefits should not have been awarded because it gave Ms. Anderson a bona fide offer of employment at wages equal or greater to the wages she was earning before the accident. We disagree.

The testimony of Ms. Smith demonstrated that Ms. Anderson was twice offered light-duty employment at equal or greater wages, which she refused. Ms. Anderson testified at the hearing that, if she did not have to do too much walking, she could perform all of the light-duty tasks outlined by Ms. Smith. According to Ms. Smith, her duties would have included only limited walking, and that "anybody on light duty is instructed that they can either change what they are doing or sit or whatever they need to do as needed." Ms. Anderson chose not to attempt the employment offered by appellant. However, in her testimony Ms. Anderson complained that, at the time the initial light-duty offer was made, she was experiencing back and leg pain as well as other health problems that made it impossible for her to work. She stated, "My other health problems were one of the reasons I did not go back to work." She further testified that she did not know of any jobs that she could perform, and the Commission was entitled to credit this testimony. Although an offer of employment was made by the appellant, there was substantial evidence to support theCommission's finding that, due to Ms. Anderson's condition, the offer was not reasonably obtainable.

Columbia Health Care also argues, alternatively, that wage-loss benefits were barred pursuant to Ark. Code Ann. § 11-9-102(5)(F)(ii)(b) (Repl. 1996), which provides:

If any compensable injury combines with a preexisting disease or condition or the natural process of aging to cause or prolong disability or a need for treatment, permanent benefits shall be payable for the resultant condition only if the compensable injury is the major cause of the permanent disability or need for treatment.

We disagree with appellant's argument on this issue, also. The only medical opinion addressing the "major cause" requirement was Dr. Hilborn's assertion that Ms. Anderson's degenerative spinal changes "were probably fifty percent or more responsible for her symptomatology and need for treatment." The Commission stated in its supplemental opinion that it did not interpret this statement to necessarily mean that the degeneration was the major cause, or more than fifty percent, of her wage-loss disability. We think reasonable minds could come to this conclusion.

According to a report by Dr. Holladay, Ms. Anderson had been reporting back pain for several months prior to her compensable injury. Thus, symptoms had surfaced before that time, which presumably related to her degenerative back condition. However, Ms. Anderson was able to work full-time at her regular job before the work-related incident, but has not returned to work since. So, even though Dr. Hilborn opined that Ms. Anderson's preexisting condition was the major cause of her "symtomatology and need for treatment," there is substantial evidence to support the Commission's finding that the compensableinjury, and not the preexisting condition, was the major cause of her permanent disability, in that disability refers to a claimant's diminished ability to earn wages. See Ark. Code Ann. § 11-9-102(8) (Supp. 1999). This is so because section 11-9-102(5)(F)(ii)(b) quoted above speaks of "major cause" in the disjunctive, i.e., "if the compensable injury is the major cause of the permanent disability or need for treatment." [Emphasis added.] While the injury may not have been the major cause of her need for treatment, the Commission could properly find that the injury was the major cause of her disability.

We now turn to Ms. Anderson's argument, on cross-appeal, that she should have been awarded permanent and total disability due to her advanced age, lack of education, and extremely limited job prospects. Although there was evidence that Ms. Anderson suffered permanent wage-loss disability as a result of her compensable injury, there was also evidence that her injury did not render her permanently and totally disabled. There were medical opinions in the record stating that, while Ms. Anderson's injury prevented her from returning to her previous job duties, she might be able to perform sedentary work or other employment within her limitations. Two sedentary jobs were identified by the vocational counselor, but Ms. Anderson failed to pursue these potential opportunities. Moreover, there was evidence that her current disability relates in part to health problems unrelated to the compensable injury. Based on the evidence presented, we affirm the Commission's finding that Ms. Anderson suffered 50% wage-loss disability as a result of her compensable injury.

Ms. Anderson's remaining issue on cross-appeal is that the Commission erred in failing to award benefits based on the eight percent permanent partial anatomical ratinginitially assigned by Dr. Hilborn. We disagree. Even though Dr. Hilborn initially assigned an eight percent rating, he later changed his opinion by stating that Ms. Anderson's preexisting degenerative changes could be deducted, thereby reducing her compensable impairment rating to six percent. We conclude that there was substantial evidence to support the permanent impairment rating awarded by the Commission.

Affirmed.

Hart and Neal, JJ., agree.