Lynda Rudd v. A.L. Tenney Trustee, State Farm Fire and Casualty Company, and Death and Permanent Disability Trust Fund
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ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
DIVISION II
CA 051038
LYNDA RUDD
March 15, 2006
APPELLANT
V.
A.L. TENNEY TRUSTEE, STATE
FARM FIRE AND CASUALTY COMPANY,
a n d D E AT H AND PE R M ANE N T
DISABILITY TRUST FUND
APPELLEES
APPEAL FROM T HE WORKERS’
COMPENSATION COMMISSION
E508014
AFFIRMED
TERRY CRABTREE, Judge
By decision entered September 20, 2004, an Administrative Law Judge (ALJ) found
that appellant Lynda Rudd failed to prove by a preponderance of the evidence that she is
totally and permanently disabled as a result of her compensable injury of 1991, but found
that due to her injury she sustained a fifty percent wage loss. The ALJ further held that
appellee State Farm Fire and Casualty Company (State Farm) was not entitled to an offset
for the benefits received by appellant under a longterm disability insurance policy. Both
Rudd and State Farm appealed to the Full Commission.
The Workers’ Compensation Commission affirmed the decision of the ALJ with
regard to appellant’s contention that she is totally and permanently disabled, finding that she
failed to meet her burden of proof. The Commission modified the decision of the ALJ on
the issue of wageloss benefits. It held that appellant was entitled to a five percent wageloss
benefit rather than the fifty percent wage loss benefit granted by the ALJ. Further, the
Commission agreed with and affirmed the ALJ’s decision that State Farm did not prove
entitlement to an offset for benefits received by appellant under a long term disability
insurance policy.
On appeal, appellant challenges the decision of the Workers’ Compensation
Commission to deny her claim for total and permanent disability benefits. She asserts that
under the oddlot doctrine in effect at the time of her injury, the evidence supports a finding
that she is permanently and totally disabled. She also maintains that it was error for the
Commission to reduce her wage loss disability from fifty percent to five percent. We
disagree and affirm.
Appellant began working for appellee, A.L. Tenney Trustee, in 1980, and she was
working for appellee as a claims supervisor when she was injured in November 1991. She
sustained an admittedly compensable injury to her neck and back when she fell from a ladder
into some shelving. As a result, she required surgery on May 15, 1995. Dr. Richard Jordan
performed an anterior cervical diskectomy with fusion at C56 and C67. He released
appellant to return to work fulltime on September 26, 1995.
Because appellant continued to experience pain in the lumbar region of her back, she
received epidural steroid injections. Ultimately she required another surgery, and on June
12, 1996, Dr. Jordan performed a right hemilaminectomy and diskectomy at L45. Dr.
Jordan performed a third surgery on December 19, 1997, when appellant had a right anterior
scalenotomy and a lumbar epidural steriod injection. Appellant returned to work after each
of these surgeries.
Appellant had surgery on the cervical area of her spine again on March 6, 1998. At
that time she had an anterior cervical diskectomy with fusion at C45 with anterior plating.
Following her healing period she returned to work, although she continued to complain of
pain. Her fifth and final surgery was performed on September 7, 2000. Dr. Jordan
performed an anterior cervical diskectomy and fusion at C34 with anterior synthes plating.
After this final surgery, appellant’s healing period extended beyond the twelve months
covered by company policy, so her employment with appellee was terminated.
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CA 051038
Appellant began seeing Dr. Thomas Kiser at the University of Arkansas for Medical
Sciences, Department of Physical Medicine & Rehabilitation (UAMS) on May 24, 2001. Dr.
Kiser did a thorough evaluation of appellant’s condition and reported a recommended plan
for her rehabilitation. In addition to physical therapy and medications, Dr. Kiser indicated
he would see appellant in two months to evaluate her progress and hopefully put a returnto
work program in place. Dr. Kiser’s next report, dated August 17, 2001, notes that he spoke
with appellant about returning to work. It was his opinion that she would need to start back
slowly with half days three times per week, working up to a fiveday work week. In a
subsequent report dated September 20, 2001, Dr. Kiser recommends that appellant continue
aquatic therapy. He noted that appellant expressed interest in volunteer work at Children’s
Hospital, and he agreed that it would be a good idea. He further opined that “as far as
working in the future, I think she has good upper and lower extremity strength. Functionally,
she could do the activity.” It was Dr. Kiser’s opinion that “once she has successfully done
some volunteer work, looking at paid employment would be the next step.”
On May 15, 2003, appellant and her attorney met with Chelle Williams, a vocational
case manager with Corvel. Subsequent to this meeting, Ms. Williams prepared a vocational
assessment report that outlined appellant’s personal, educational, medical, and work
background. Ms. Williams’ recommendation was that she would complete a transferable
skills analysis to identify appropriate vocational goals for appellant, and she would begin a
survey of the labor market to determine the availability of employment opportunities. In the
transferable skills report dated June 16, 2003, Ms. Williams outlined appellant’s work history
and noted that appellant was a high school graduate with one year of college and one year
of business school. She also listed the restrictions given by Dr. Kiser, more specifically, that
appellant had a tenpound lifting restriction that placed her work capability as sedentary.
Ms. Williams also prepared a labor market survey report dated July 29, 2003, that listed nine
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job leads. Under the summary section of this report, Ms. Williams noted that appellant
expressed the belief that she would not be able to return to work.
In addition to being evaluated by Dr. Kiser, appellant was also evaluated by Dr.
William Ackerman. She reported to Dr. Ackerman that she was the sole caretaker of her six
yearold granddaughter, and that she had a surveillance video on her when she was taking
care of her grandchild. During the examination she complained of pain and sleep
deprivation. Dr. Ackerman’s opinion was that his findings would substantiate the presence
of moderate but not severe pain, and he made several recommendations regarding changes
in medication. His report indicates that appellant was concerned with increasing her
functionality so she could be more involved with her granddaughter. Dr. Ackerman opined
that appellant “will not be able to resume gainful employment.”
At the hearing of this matter, appellant testified that she is in too much pain to work.
She further testified that she has had sole custody of her hearingimpaired granddaughter
since May 2000. The child attends a private school in Jacksonville, and appellant drives her
to school, and she also takes her to Children’s Hospital in Little Rock once a week for speech
therapy. Appellant testified that when she was living in Vilonia she was driving sixty miles
in the morning and sixty miles in the afternoon to take her granddaughter back and forth to
school. She subsequently moved to Jacksonville, so her commute is now a short distance.
Appellant testified that she is not doing water therapy as recommended by her doctors
because she does not feel it is helping her. She said she classifies herself as a homemaker
not working outside the home. She testified that she considers herself disabled and has not
made any effort to return to work; however, she stated she filled out applications for the jobs
sent to her by Chelle Williams.
Chelle Williams testified at the hearing that to her knowledge appellant did not follow
up on any of the jobs. She said she followed up with several of the employers and they did
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CA 051038
not have active applications for appellant. Ms. Williams testified that when people do not
have a financial incentive, they usually do not return to work. She said that appellant told
her that her financial needs were being met. Ms. Williams also indicated that appellant
seemed intent on staying home to care for her granddaughter. According to Ms. Williams,
the United States Department of Labor’s Dictionary of Occupational Titles classifies
homemaker as a mediumduty job. The job leads provided by Ms. Williams to appellant
were classified as light to sedentary.
Appellees provided a video surveillance tape of appellant that was introduced as
evidence and shown at the hearing. The tape showed appellant entering WalMart and
leaving WalMart with a shopping cart. The cart contained several large, plastic storage
containers and a large bag of dog food. The tape showed appellant loading the items into the
trunk of her car. Another segment of the tape showed appellant in the parking lot in front
of her granddaughter’s school, walking her into school, going to the post office, and other
activities indicative of a normal homemaker’s life.
Taking into consideration appellant’s age, mental capacity, training, and work
experience, the Commission agreed with the ALJ that appellant was precluded from falling
within the oddlot category for permanent and total disability. The Commission noted
appellant’s vast clerical experience, and that she attended college, business school, and had
completed a computer class. While the Commission considered the opinion of Dr. William
Ackerman, it gave more weight to the opinion of Dr. Thomas Kiser, who opined that
appellant should be able to return to employment. The Commission also gave weight to the
fact that appellant is a fulltime caretaker for her granddaughter. In further support of the
position that appellant is at least capable of light to sedentary work, the Commission cited
its reliance on the video surveillance tape and still pictures depicting appellant engaging in
normal daily activities.
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CA 051038
When a claim is denied because the claimant has failed to show an entitlement to
compensation by a preponderance of the evidence, the substantialevidence standard of
review requires us to affirm if the Commission’s opinion displays a substantial basis for the
denial of relief. Clardy v. MediHomes LTC Serv. LLC, 75 Ark. App. 156, 55 S.W.3d 791
(2001). Substantial evidence is such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion. Patterson v. Arkansas Dep’t of Health, 70 Ark. App.
182, 15 S.W.3d 701 (2000). The court will not reverse the Commission’s decision unless
it is convinced that fairminded persons with the same facts before them could not have
reached the conclusions arrived at by the Commission. Searcy Indus. Laundry v. Ferren, 82
Ark. App. 69, 110 S.W.3d 306 (2003). It is the function of the Commission to determine the
credibility of the witnesses and the weight to be given their testimony. Id. Furthermore, the
Commission has the duty of weighing medical evidence and, if the evidence is conflicting,
its resolution is a question of fact for the Commission. Id.
The oddlot doctrine provides benefits for an employee who is injured to the extent
that the only services he can perform are so limited in quality, dependability, or quantity that
a reasonably stable market for them does not exist and he may be classified as totally
disabled. Patterson v. Arkansas Dep’t of Health, supra. Appellant asserts that she falls
under this doctrine; however, we disagree. Appellant has the burden of making a prima facie
showing that she falls in this category based upon the factors of permanent impairment, age,
mental capacity, education, and training. Only after she makes this showing does the burden
shift to the employer to show that some kind of suitable work is regularly and continuously
available to her. Ellison v. Therma Tru, 71 Ark. App. 410, 30 S.W.3d 769 (2000) (citing
Patterson v. Arkansas Dep’t. of Health, supra). The court may also consider the appellant’s
motivation to return to work, since a lack of interest or a negative attitude impedes our
assessment of the appellant’s loss of earning capacity. Ellison, supra.
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CA 051038
Appellant has a twentysix percent impairment rating. By all accounts she is a bright,
relatively young person who attended college and business school. She possesses extensive
clerical experience and was working as a supervisor earning over $53,000 per year at the
time of her injury. The vocational consultant identified several jobs for which appellant was
amply qualified; however, appellant did not pursue these opportunities. It was the opinion
of the consultant that, because appellant’s needs were being met, she might not have the
incentive to return to work. In fact, the combined total of appellant’s workers’
compensation, long term disability and social security disability, along with her
granddaughter’s disability benefits is over $65,000 per year, a sum greater than what
appellant earned while she was employed. These factors, along with the photographs and
video supporting the fact that appellant is capable of performing light work, were
appropriately considered and weighed by the Commission. Because the Commission’s
decision displays a substantial basis for the denial of relief, we affirm on this point.
Appellant argues it was error for the Commission to reduce her wage loss from fifty
percent to five percent. Pursuant to Ark. Code Ann. § 119522(b)(1)(Repl. 2002), the
percentage of permanent physical impairment along with a person’s age, education, work
experience, and other factors reasonably expected to affect his or her future earning capacity
are to be considered by the Commission in evaluating permanent partial disability benefits
in excess of the permanent physical impairment. The Commission may also consider a
person’s motivation to return to work. Ellison, supra.
The Commission held that “claimant has failed by her own actions to prove that she
is entitled to fifty percent wage loss benefits.” After recounting appellant’s education and
work experience, the Commission reasoned that appellant’s current financial situation
combined with her fulltime responsibility of caring for her granddaughter served to dissuade
her from seeking employment. We cannot say that the Commission’s decision is not
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CA 051038
supported by substantial evidence, and we affirm on this point as well.
Affirmed.
BIRD and GLOVER, JJ., agree.
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CA 051038
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