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PATTERSON v. ARKANSAS DEPARTMENT HEALTH5/3/2000
This case involves an appeal and a cross-appeal from a decision in which the Workers' Compensation Commission held that the preponderance of the evidence shows that appellant is not permanently and totally disabled and that Second Injury Fund (SIF) has no liability. We reverse and remand on direct appeal and affirm on cross-appeal.
At the hearing on appellant's claim, it was stipulated that appellant, Annalee Patterson, sustained a compensable injury on December 19, 1991, and that appellees, Arkansas Department of Health (ADH) and the Arkansas Insurance Department, Public Employee Claims Division, have accepted and are paying benefits consistent with a twenty-five percent anatomical impairment. Appellant contended that she is permanently and totally disabled as a result of her compensable injury. ADH contended that appellant's disability did not exceed her anatomical impairment and, alternatively, that any wage-loss suffered by appellant is SIF's responsibility. SIF contended that it has no liability; that appellant's disability was solely the result of her job -related injury; and that she is not entitled to benefits for disability exceeding her anatomical impairment because ADH had made a bona fide offer of employment at wages equal to or greater than appellant's average weekly wage at the time of the "re-injury."
Appellant, who was forty-seven years old on the date of the hearing, is a registered nurse who was employed in an administrative position by ADH on December 19, 1991, when she sustained a back injury after reaching across her desk to plug in a surge protector.
She felt an immediate, sharp pain in her lower back. She was initially treated by Dr. John Wilson, who referred her to Dr. Jim Moore, a neurologist, who eventually performed five spinal surgeries on appellant as a result of her injury . Subsequent to surgery in 1994, appellant developed arachnoiditis in the lower thecal sac, for which there is no specific treatment other than pain management. After surgery performed on July 11, 1995, appellant developed a cerebrospinal fluid leak (CSF), which is not a normal result of that surgery. Appellant also suffers from migraine headaches and Sjogren's syndrome and has been diagnosed with depression, failed spinal surgery syndrome, and cauda equina syndrome. Appellant is currently taking a narcotic synthetic codeine three times a day for pain, anti-inflammatories for Sjogren's syndrome, and blood pressure medication.
At the hearing on her claim, appellant testified that as a result of her injury and surgeries she spends most of the day in bed due to pain. She generally spends the morning sitting in a recliner or wheelchair. By noon her legs swell to the knees. She has developed foot drop in both feet as a result of the surgeries and drags her toes; because she does not have a steady leg to stand on, she cannot use crutches. She is unable to walk any distance. Appellant suffered from migraine headaches prior to her first surgery, but they are now more frequent. Prior to her last surgery, appellant was able to work as a part-time consultant because she was still mentally alert. After the last surgery, appellant developed cognitive problems and has experienced a change in her ability to think, to remember, and to perform mental tasks; Dr. Moore told her she is incapable of working. Since 1986, appellant has been afflicted with Sjogren's syndrome, a condition involving the inability of a gland to secrete; however, she never missed any work due to this condition, and she was able to do her job .
Appellant testified that she would prefer to go back to work, but since her 1991 injury ADH has not offered her job back at full
pay, and after she used
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