James Bradley v. Standard Register Company and Travelers Insurance

ca04-839

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION IV

JAMES BRADLEY,

APPELLANT

V.

STANDARD REGISTER COMPANY AND TRAVELERS INSURANCE,

APPELLEES

CA04-839

MARCH 9, 2005

APPEAL FROM THE WORKERS' COMPENSATION COMMISSION,

NO. F211782,

REVERSED AND REMANDED

Sam Bird, Judge

James Bradley, an employee of Standard Register Company for thirty-one years, appeals the April 13, 2004, decision of the Workers' Compensation Commission that he sustained only a fifteen-percent loss of wage-earning capacity after suffering a compensable injury. The injury, which was to his right shoulder, occurred in August of 2000 while he was moving rolls of paper during his work as a press operator. Bradley underwent surgery in September of 2000 and was released to full duty, but his shoulder problems continued when he returned to work. Because of inability to use his right upper extremity, he overcompensated by use of his left arm and subsequently developed tennis elbow syndrome of the left arm. Problems with the right shoulder persisted despite a second surgery on September 27, 2002, by orthopedist Dr. Mark Powell. Standard Register subsequently accepted an impairment rating of fifteen percent to the body as a whole, which was based upon a twenty-five-percent upper-body impairment.

On August 6, 2003, a hearing was conducted before the administrative law judge on Bradley's claim for permanent total disability and his alternate claim for loss in wage-earning capacity. The law judge rejected the claim for permanent total disability, but he found that Bradley had suffered "a significant loss" in wage-earning capacity resulting in a loss equal to sixty percent to the body as a whole. The Commission modified the decision of the law judge by reducing the loss in wage-earning capacity to fifteen percent to the body as a whole. Bradley raises two points on appeal of the Commission's decision: (1) the Commission erroneously indicated that his motivation was lacking, thereby interfering with his wage loss, and (2) the Commission's findings are not supported by substantial evidence. Because the arguments under these points of appeal are interrelated, we address them as one. The decision of the Commission is reversed and remanded.

It is well settled that a worker who sustains an injury to the body as a whole may be entitled to wage-loss disability in addition to his anatomical loss. Glass v. Edens, 233 Ark. 786, 346 S.W.2d 685 (1961). 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 County Mem. Hosp., 54 Ark. App. 130, 923 S.W.2d 886 (1996). 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 Express, Inc., 62 Ark. App. 224, 976 S.W.2d 393 (1998). In considering factors that may affect an employee's future earning capacity, the Commission may examine the claimant's motivation to return to work, because a lack of interest or a negative attitude impedes assessment of the claimant's loss of earning capacity. Emerson Elec. v. Gaston, 75 Ark. App. 232, 58 S.W.3d 848 (2001); City of Fayetteville v. Guess, 10 Ark. App. 313, 663 S.W.2d 946 (1984).

The evidence before the Commission consisted of Bradley's testimony, his medical records, and the results of a functional capacity evaluation. Bradley testified that he graduated from high school, attended college for two years but earned no degree or diploma, joined the marine corps, and went to work for Standard Register when he received his honorable discharge in 1971. He stated that his final rate of pay at the company was $19.56 an hour plus overtime, with an average annual income of $38,000 to $40,000 plus bonuses "toward the end." He gave these descriptions of his jobs at Standard Register:

I started out as a forms packer, taking forms, putting them in boxes, sealing them and sending them to shipping. I left there and went to a collator, which is a machine that collates the rolls and Carpet and things like that. Gluing, fastening, and crimping statements. I left there and went to the press roll, the type of work I was still doing when I left them in September....

My last job at Standard Register was an AA press operator in which I had to move rolls, put rolls in position to go on the press, prep the press, clean up the press. Then, after preparation, I would remove finished rolls. Sometimes we would go roll to roll, sometimes, we would go roll to fold. If you don't fold you remove the packs and stack them on trays. Then I take them to be boxed in the boxing area. Usually on my press we ran jumbo rolls, and sometimes they'd be two or three packs of around 1600 pounds. In order to move them, I try to put something flat on the floor and try to spin them. Sometimes, you just have to pull and yank them to get them into position. The job requires quite a bit of reaching and pulling.

Bradley said that his last job with the company was more difficult mentally than his previous jobs, which were physically harder, and that he had worked his way up to the easiest position available.

Bradley testified that he went to physical therapy and that he continued to work after undergoing his second shoulder surgery in September of 2002. He stated that Dr. Mark Powell continued treating the left elbow problems that were due to overcompensation. Bradley said that his elbow had not improved despite exercises, physical therapy, ice treatments, and placement of an "electronic device"; and that a brace helped somewhat but caused swelling and worsened the pain. He testified that his shoulder was no better after the second surgery, that he still had pain and sleepless nights, and that he had been "off and on" a variety of anti-inflammatories, nerve pills, and sleeping pills since his first operation.

Bradley testified that he took the results of his functional capacity evaluation to TomKristoffersen of Standard Register. Bradley said that the company tried to find a job for him, but "it was just something that was over my limitation ... something I couldn't perform." He said that Kristoffersen told him that "there wasn't anything out there" that he could do. Bradley stated that he had planned to work until the age of sixty-five and to retire in 2013, and that he would still be working were it not for his shoulder and elbow. He said that he had filed for anything he "could get [his] hands on," applying for social security disability and rolling over his retirement money into another account until he would be old enough to get it without penalty. As of the date of the hearing, he had received his first long-term disability check, which off-set his workers' compensation benefits.

Bradley testified that he did not seek other employment outside of Standard Register after he had received the results of his functional capacity evaluation and was informed that the company could not take him back. He stated:

I didn't see anything out there I could do.

. . . .

I am computer illiterate and I don't even try to use computers. I think I could operate a calculator, but physically I probably could not for a sustained period of time.

Since I left Standard Register I have not looked for suitable work anywhere because of the way I feel physically. I have a son that at one time had a sports recruiting business and had indicated to my doctor that I might try to work for his business in the office. I don't think that I would have been doing any work. I think my son was just trying to help me out. I did not think that I would be able to do office work for my son or anyone else. I think that I can write, although when I write my sister a letter I often have to stop, and answer a telephone. No doctor has told me that I cannot work at all although I do recall Dr. Powell telling me that I was totally disabled from any occupation. Besides my shoulder and elbow problem I have no other health problems that restrict me from working.

Standard Register has office facilities in the plant and personnel that perform office duties. None of these jobs were offered to me at Standard Register. The physical demands of these jobs include doing a lot of computer work and some of them work with typewriters, and other general office work including filing. Some of these jobs, though sedentary, easy, office jobs, require use of the upper extremities. I do not have unlimited use of my upper extremities. I do not have any limitations with sitting or standing.

Tom told me that he would put me where he had an opening and what he came up with, I could not do. I don't even try to operate a computer. In order to do one of the office jobs I would have to go through training. Since I left Standard Register and retired I have not considered trying to get retrained or going back to college because I have been trying to get better physically.

Dr. Powell's office notes and written orders show that he prescribed occupational therapy for Bradley's recovery from shoulder surgery on September 2, 2002, as well as for the subsequent problems with the left elbow. On November 7, 2002, Powell wrote that Bradley continued to go to therapy and to follow a home exercise program. A note of November 19, 2002, indicates that Bradley reported pain both at night and after occupational therapy; Dr. Powell wrote prescriptions for new medications, ordered that the occupational therapy continue, and stated that "Mr. Bradley needs to be retrained in a different position at work." A note of December 12, 2002, contains the following:

He is going to occupational therapy 3 times per week at Trinity Rehabilitation....

Mr. Bradley will not be able to return to heavy and strenuous work. I recommend he be retrained in a supervisory position. He is to remain off work until further notice and I will see him back in the clinic in 3 months.

The next office note, dated February 20, 2003, reports Bradley's statement that "workers' compensation stopped occupational therapy and wanted him to come in early." Dr. Powell set up an impairment rating and functional capacity evaluation at Trinity Rehabilitation, and he ordered that Bradley remain off work until these were done.

The functional capacity evaluation, performed on March 4, 2003, recommended that Bradley do only sedentary work with limitations. These included no reaching with the right shoulder and infrequent reaching with the left upper extremity; no overhead reaching with the right shoulder and "infrequent, non-resistive" overhead reaching with the left upper extremity. Repetitive movement of the fingers, wrist, and elbow was limited to five minuteson the right and prohibited on the left, while there was to be no repetitive right-shoulder movement, and it was to be non-resistive on the left. The force of occasional pushing and pulling was limited to seven pounds on the right, with frequent pushing and pulling at three pounds; there was a three-pound limit for occasional pushing on the left and a one-pound limit for frequent pushing, and no pulling was allowed on the left. Other recommended limitations were:

Lift Right occasional 1 lb. max

frequent less than 1 lb.

Left occasional 1 lb. max

frequent less than 1 lb.

Bilateral 2 lb. max occasional with elbows at side, palms up

1 lb. frequent with elbows at side, palms up

Carry no carrying using only 1 arm

Bilateral 2 lb. frequent with arms at side, palms up

1 lb. frequent with arms at side, palms up

The occupational therapist who performed the evaluation recommended employment suitable to Bradley's physical restrictions:

I recommend that he returns to a permanent job where he can use his right arm at his side, where right arm reaching and overhead reaching are not required, and where 1 pound or less is routinely handled by the right arm. In regard to the use of his left arm, I recommend that he routinely handle 1 pound or less with his palm up during job tasks and that he not be required to perform gripping activities using his left arm. In terms of constant use of his arms, I believe he should seek a position where he does not use his right shoulder or his left wrist and hand for repetitive activities.

Points on Appeal

Bradley contends on appeal that the Commission "errantly indicated that his motivation was lacking therefore interfering with his wage loss" and that substantial evidence does not support "the findings" of the Commission. The respondents contend simply that the Commission's finding of a fifteen-percent wage-loss disability is supported by substantial evidence. These contentions center around this portion of the Commission's decision:

The claimant is 55 years old and he is a high school graduate with two and [a]half years of college education. The claimant has demonstrated an ability to work his way up in the plant to a point where he was in the least physically strenuous yet more mentally challenging position.... Claimant continues to complain of pain and he has lost some strength in his upper extremities. Accordingly, the Functional Capacity Evaluation indicates that the claimant is physically capable of returning to work in a sedentary position.

The claimant has not looked for work since being advised by respondent-employer that there was not a position available within his physical restrictions at the plant. The claimant has the capacity to attain a college degree as demonstrated by his completion of two and a half years of college before he joined the Marine Corps. However, the claimant has not exhibited any interest in re-education or re-habilitation to make himself more competitive in the sedentary labor market. Rather, the claimant is currently drawing long-term disability benefits from the respondent and he has applied for social security disability benefits. The claimant has not even looked for work or otherwise placed himself in the labor market. We find that the claimant's motivation to return to work and his lack of interest in pursuing employment impedes this Commission's full assessment of the claimant's loss of earning capacity. While the limitations placed upon the claimant by his treating physician are significant when compared to claimant's previous employment in a heavy job description, we find that when the claimant's age, education, medical condition, work experience, negative attitude in seeking employment, and all other matters that might reasonably affect his future earning capacity are considered, the claimant has proven that he suffered a loss in his wage earning capacity in an amount equal to 15% to the body as a whole.

The findings of the Commission will be upheld unless there is no substantial evidence to support them. Ark. Dep't of Correction v. Glover, 35 Ark. App. 32, 812 S.W.2d 692 (1991). Substantial evidence exists only if reasonable minds could have reached the same conclusion without resort to speculation or conjecture. White Consol. Indus. v. Galloway, 74 Ark. App. 13, 45 S.W.3d 396 (2001); Ark. Dep't of Correction v. Glover, supra. Conjecture and speculation, even if plausible, cannot take the place of proof. Ark. Dep't of Correction v. Glover, supra. While the appellate court defers to the Commission on issues involving the weight of the evidence and the credibility of the witnesses, it may not disregard testimony, and it is not so insulated as to render appellate review meaningless. Freeman v. Con-Agra Frozen Foods, 344 Ark. 296, 40 S.W.3d 760 (2001).

Bradley challenges the Commission's ruling that its assessment of his loss of earning capacity was impeded by his "motivation to return to work and his lack of interest inpursuing employment." Bradley argues, in part, that because he was never offered vocational rehabilitation or assistance, his lack of participation in vocational rehabilitation is not indicative of a lack of motivation. We agree.

Arkansas Code Annotated section 11-9-505 (Repl. 2002), entitled Additional compensation - rehabilitation, reads in part:

(3) The employee shall not be required to enter any program of vocational rehabilitation against his or her consent; however, no employee who waives rehabilitation or refuses to participate in or cooperate for reasonable cause with either an offered program of rehabilitation or job placement assistance shall be entitled to permanent partial disability benefits in excess of the percentage of permanent physical impairment established by objective physical findings.

We previously have rejected the argument that because a claimant did not request a program of rehabilitation or pursue one on his own, he was not entitled to an award of permanent disability benefits in excess of his permanent impairment rating. Second Injury Fund v. Stephens, 62 Ark. App. 255, 970 S.W.2d 331(1998), "citing Second Injury Fund v. Furman, 60 Ark. App. 237, 961 S.W.2d 787 (1998)".

Noting Bradley's receipt of long-term disability benefits, his application for social security disability benefits, and his failure to look for work, the Commission found that he had not exhibited interest in re-education or rehabilitation. The Commission did not acknowledge, however, that Bradley's treating physician ordered a functional capacity evaluation on the date that Bradley came in earlier than scheduled, reporting that workers' compensation had stopped the occupational therapy he had been attending. There was no evidence that, after Bradley took the results of the functional capacity evaluation to the company and was told that there was no job for him within the limitations of his evaluation, Bradley was offered rehabilitation or job-placement assistance. We hold that there was no substantial evidence to support the Commission's finding that Bradley exhibited no interest in rehabilitation to make himself more competitive in the sedentary labor market.

Bradley also challenges the Commission's finding that he had the capacity to attain a college degree, arguing that the Commission failed to acknowledge that he was a fifty-five-year- old with no further formal education during more than thirty years of employment that followed two years of college.1 He presents additional arguments as to the Commission's finding that he failed to show interest in re-education and rehabilitation. He complains that the Commission failed to acknowledge his participation in occupational therapy, the likelihood that a traditional educational environment would necessitate carrying books weighing far more than his limitation, and his testimony that he could not write three or four pages without stopping intermittently. He maintains that his success in working his way up in the plant to the least strenuous position, which nevertheless required that he move 1600-pound rolls of carpet, was not indicative of any measure of success in whatever field of sedentary work he ultimately might obtain. We agree with these arguments.

We hold that Bradley's failure to request a program of rehabilitation or pursue one on his own does not constitute substantial evidence that he waived entitlement to permanent disability benefits in excess of his permanent impairment rating. We hold that the completion of two-and-a-half years of college-when viewed in the context of Bradley's subsequent thirty years' employment at manual labor, his age, his physical limitations, and other pertinent factors-does not constitute substantial evidence that he had the capacity to earn a college degree. Thus, we hold that substantial evidence does not support the Commission's finding that Bradley exhibited no interest in re-education or rehabilitation.

In sum, much of the Commission's decision is based upon findings that are unsupported by substantial evidence, and we hold that reasonable minds could not conclude that Bradley's wage-loss disability was only fifteen percent. Therefore, the decision is reversed and remanded. We instruct the Commission to consider all evidence previously presented at the hearing regarding Bradley's age, education, medical condition, work experience, attitude in seeking employment, and other matters that reasonably affect his future earning capacity.

Reversed and remanded for action in keeping with this opinion.

Crabtree and Baker, JJ., agree.

1 Appellant and appellees' both refer in their briefs to appellant's completion of two years of college, rather than the two-and-a-half years to which the Commission refers, and the abstracted testimony of appellant bears this out. This apparent error on the part of the Commission has no bearing upon our decision.