RUSSELL v. JOHN SANDERS LOGGING

The respondents appeal an opinion and order filed by the administrative law judge on July 5, 1994. A prior hearing was held in this claim, and, as a result of that hearing, the administrative law judge filed an opinion and order on February 9, 1993, finding that the claimant sustained a work-related aggravation of a preexisting heart condition and that the claimant also sustained a 10% permanent physical impairment to the body as a whole as a result of a shoulder injury arising from the same work-related accident. The permanency of the heart condition was reserved at that time, but, in his July 5, 1994, opinion and order, the administrative law judge found that the claimant was permanently and totally disabled as a result of the combined effects of the shoulder injury and the aggravation of the preexisting heart condition.

After conducting a de novo review of the entire record, we find that the claimant failed to prove by a preponderance of the evidence that he is permanently and totally disabled as a result of the compensable accident. Instead, we find that the preponderance of the evidence establishes that the claimant sustained a 10% impairment to his earning capacity in addition to the 10% permanent physical impairment established by the medical evidence.

The claimant was employed by the respondent employer. He sustained admittedly compensable injuries on January 24, 1991, when his truck over-turned as he was maneuvering to avoid a head on collision with a chicken truck. He was taken to the hospital, and the hospital records of Dr. Berry Lee Moore, a general practitioner and the claimant's treating physician, indicate that the claimant was complaining of severe pains in his chest, shoulder, face, and side. Dr. Moore's records also indicate that the claimant sustained multiple contusions of the chest wall, his right face, his right shoulder, and his left hip, and these records indicate that the claimant strained his right shoulder. However, the claimant did not sustain any fractures of the ribs or facial bones. X-rays did show that the claimant had an "extremely enlarged heart," and testing revealed poor contractibility of the left ventricular myocardium with early congestive heart failure and ejection fraction of 27%. Although Dr. Moore was aware that the claimant had hypertension and an enlarged heart for many years before this accident, he determined that the claimant had sustained a myocardial contusion as a result of the accident. The claimant was 64 years old at the time of this accident, and he was obese.

It was ultimately determined that the claimant dislocated his right shoulder, and surgery to repair this condition was scheduled in March of 1991. However, Dr. David G. Burkett, a cardiologist, evaluated the claimant's cardiac status prior to the surgery, and Dr. Burkett determined that surgery should be postponed. Dr. Burkett performed a heart catheterization on March 21, 1991, and this procedure revealed normal coronary arteries. However, the procedure also revealed an enlarged heart, and, based on the findings of this procedure, Dr. Burkett calculated an estimated ejection fraction of 25%. The ejection fraction refers to the volume of blood evacuated by the heart in comparison to the amount it started with, and, according to Dr. Burkett, the ejection fraction of a normal heart is 50% to 75%. Dr. Burkett treated the claimant conservatively, and his ejection fraction improved sufficiently to allow surgery on his shoulder. By April 1, 1993, Dr. Burkett had determined that the claimant's ejection fraction was between 33% and 45%.

When determining the degree of permanent disability sustained by an injured worker, the Commission must consider the degree to which the worker's future wage earning capacity is impaired. In addition to medical evidence demonstrating the degree to which the worker's anatomical disabilities impair his earning capacity, the Commission must also consider other factors, such as the worker's age, education, work experience, and any other matters which may affect the worker's future earning capacity, including the degree of pain experienced by the worker. Ark. Code Ann. § 11-9-522 (1987); Tiller v. Sears, 27 Ark. App. 159, 767 S.W.2d 544 (1989). When it becomes evident that the worker's underlying condition has become stable and that no further treatment will improve the condition, the disability is deemed to be permanent. If the employee is totally incapacitated from earning a livelihood at that time, he is entitled to compensation for permanent and total disability.Minor v. Poinsett Lumber Manufacturing Co., 235 Ark. 195, 357 S.W.2d 504 (1962).

Likewise, an employee who is injured to the extent that he can perform services that are so limited in quality, dependability, or quantity that a reasonably stable market for them does not exist may be classified as totally disabled under the odd-lot doctrine. Lewis v. Camelot Hotel, 35 Ark. App. 212, 816 S.W.2d 632 (1991). The odd-lot doctrine recognizes that the obvious severity of some injuries may combine with other factors to preclude the employee from obtaining employment in any reasonably stable market, although the employee is not altogether incapacitated from work. Id. In this regard, the factors which may combine with the obvious severity of the employee's injury to place him in the odd-lot category are the employee's mental capacity, education, training and age.Id. If the claimant makes a prima facie showing that he falls in the odd-lot category, the respondents have the burden of going forward with evidence showing that "some kind of suitable work is regularly and continuously available to the claimant." Id.

A preexisting disease or infirmity does not disqualify a claim if the employment aggravated, accelerated, or combined with the disease or infirmity to produce the disability for which compensation is sought. Nashville Livestock Commission v. Cox, 302 Ark. 69, 787 S.W.2d 664 (1990); Minor v. Poinsett Lumber Mfg. Co., 235 Ark. 195, 357 S.W.2d 504 (1962); Conway Convalescent Center v. Murphree, 266 Ark. 985, 588 S.W.2d 462 (Ark.App. 1979). However, permanent disability compensation is paid only where the permanent effects of a work-related injury incapacitates the employee from earning the wages which the employee was receiving at the time of the injury. Therefore, if a work-related incident only temporarily precipitates symptoms associated with an underlying preexisting disease or condition, the claimant is not entitled to any permanent disability compensation. Instead, the employee is entitled to permanent disability compensation only if the work-related injury permanently worsens the underlying disease or condition, thereby impairing the employee's capacity to earn the wages she was earning at the time of the injury.

In the present claim, we find that the work-related accident only temporarily aggravated the claimant's preexisting heart condition. The claimant admitted that he had been aware for approximately 45 years that he had an enlarged heart, but he also testified that he never experienced any problems with this condition prior to the work-related accident. However, he testified that he began to experience shortness of breath and a resulting lack of energy subsequent to the injury, which he attributed to the heart condition. The testimony of Dr. Moore, the claimant's family physician since at least the mid 1960's, is not consistent with the claimant's testimony. In this regard, Dr. Moore's testimony indicates that the claimant had periodically complained of problems with shortness of breath with exertion and with swelling in his legs since 1967. Dr. Moore concluded at the time that these problems were caused by the claimant's obesity, but he admitted that both conditions were consistent with the claimant's enlarged heart condition. In addition, the claimant denied ever having any problems with hypertension, but Dr. Moore testified that he had diagnosed hypertension as early as August of 1971, and Dr. Moore indicated that his records showed that the claimant had suffered from hypertension intermittently since that time. He also indicated that the claimant periodically took medication for this hypertension. According to Dr. Burkett and Dr. Moore, hypertension is the most common cause of an enlarged heart. The claimant's ejection fraction was not calculated prior to the compensable accident.

Dr. Burkett and Dr. Moore have both opined that the claimant's current heart problems are causally related to the work-related accident. In this regard, both physicians have opined that the claimant sustained a blow to his chest during the accident which resulted in a myocardial contusion. However, Dr. Burkett was unaware of the claimant's past history of an enlarged heart prior to his deposition, and he testified that his opinion was based on his understanding that the claimant did not have an enlarged heart until after the accident. In addition, he testified that he would have questioned whether the claimant had sustained a contusion if he had been aware of the past history, and he testified that it is just as likely that the claimant's problems are caused by the preexisting enlarged heart as it is that they are caused by a contusion. Likewise, Dr. Moore indicated that his opinion was based on the conclusion that the problems which the claimant had experienced in the past were related to his obesity and not his heart. However, Dr. Moore also conceded that the strain imposed on the claimant's heart by his large weight would have ultimately resulted in the same types of heart problems which the claimant now experiences. Furthermore, Dr. Moore and Dr. Burkett both conceded that there is no way of knowing with any certainty whether the claimant's current heart problems are related in any degree to the compensable accident or whether they are related solely to the claimant's advanced age and long history of obesity and hypertension.

In short, the evidence indicates that the claimant's heart was enlarged to a greater degree for a period of time after the work-related accident, resulting in a reduction in the ejection factor. However, the evidence also indicates that this condition improved with conservative treatment. Moreover, the claimant contends he experienced physical problems subsequent to the accident that he did not previously experience. However, the evidence indicates that he did in fact experience similar problems prior to the accident. In determining whether the claimant met his burden of proof, we note that our ability to assess the claimant's physical condition prior to the accident is impeded by the absence of any of Dr. Moore's records related to the similar complaints made by the claimant prior to the accident. Moreover, we note that the weight that Dr. Burkett's opinion is entitled to receive is diminished by the fact that he was not apprised of the claimant's long history of an enlarged heart and hypertension problems. Likewise, we note that the weight that Dr. Moore's opinion is entitled to receive is diminished by his failure to associate the claimant's past problems with the heart condition, which he conceded was a logical association. Consequently, we find that the claimant failed to show by the greater weight of the evidence that the compensable accident permanently worsened the underlying heart condition. Therefore, we find that the claimant failed to prove by the preponderance of the evidence that he is entitled to permanent disability compensation based on his heart condition.

However, we find that the claimant sustained a 10% impairment to his earning capacity, in addition to the 10% permanent physical impairment established by the medical evidence, as a result of the shoulder injury. While he testified that the majority of his physical limitations are caused by his heart, he also testified that he continues to experience problems with his shoulder. In this regard, he testified that he experiences some pain in his shoulder, and he testified that the motion of the shoulder is limited. He also testified that these problems would prevent him from performing many duties of his previous employment, such as throwing the chains over the load and using a chain saw. He testified that he could drive a truck if he did not have any other duties.

The claimant is currently 68 years old. He has a high school education, but he has no other vocational training. He has worked all of his life as either a millwright or a truck driver, primarily in the logging industry. He served in the military, but it is not clear what training, if any, he received there. He began receiving Social Security retirement income shortly before his accident, and he has not looked for work since that time. In this regard, although he testified that he feels capable of performing some work, he testified that Dr. Moore has not released him to work. Consequently, considering the claimant's advanced age, his limited education and work experience, the nature of his shoulder problems, and all other relevant factors, we find that he sustained a 10% impairment to his earning capacity in addition to the degree of permanent physical impairment established by the medical evidence.

Accordingly, based on our de novo review of the entire record, and for the reasons discussed herein, we find that the claimant failed to prove by a preponderance of the evidence that he is permanently and totally disabled as a result of his compensable injury. Therefore, we find that the administrative law judge's decision must be reversed. However, we find that he sustained a 10% impairment to his earning capacity in addition to the permanent physical impairment established by the medical evidence.

IT IS SO ORDERED.