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Miller v. Georgia-Pacific Plywood Second Injury Fund3/2/2005
appeal, Miller argues that the Commission erred when it found that she failed to prove by a preponderance of the evidence that she was entitled to additional wage-loss disability. Miller contends that she is now totally disabled and unable to work. She further contends that her herniated disc and two surgeries were a result of the 1998 injury, that her disability rate was incorrectly based upon 1990 earnings rather than 1998, and that she consequently was underpaid. 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. City of Fayetteville v. Guess, 10 Ark. App. 313, 663 S.W.2d 946 (1984). In determining additional wage loss disability the Commission may take into consideration the workers age, education, work experience, medical evidence and other maters reasonably expected to affect the worker's future earning power. Id. Other factors include motivation to return to work, post-injury earnings, credibility, demeanor, and a multiplicity of factors. Curry, supra; Guess, supra. A worker may be entitled to additional wage loss disability even though his wages remain the same or increase after the injury. Guess, supra.
We find that substantial evidence supports the Commission's decision regarding Miller's entitlement to additional wage loss benefits. First, we have affirmed the Commission's finding that there was no additional injury in 1998 upon which to base the increase in earnings. Moreover, the evidence shows that Miller did not put forth effort on her functional-capacity test. Anthony Brown's report showed that Miller exaggerated her symptoms and failed to exert full effort during most of the test. Although Chelle Williams had complied a list of potential employers, Miller failed to contact any of them and admitted that she had not been actively seeking employment. Her failure to contact any of the prospective employers shows a lack of motivation to return to work, one of the factors the Commission may consider when deciding whether to award wage loss benefits. Miller has high school and some college education. She has worked in the nursing field and can now work with limitations. Williams testified that based on Miller's educational background, there would be more jobs available to Miller should she choose to work. Miller, however, admitted that she had not sought any employment since she left Georgia-Pacific in June of 1998. In view of those facts, we find that Miller did not meet her burden of proof and affirm the Commission's decision.
Finally, Miller argues that, because the second injury in 1998 required surgery and the 1990 injury did not, the 1998 injury is the major cause of her disability and her compensation should be based on her earnings at the time of the 1998 injury. She also argues that, to the extent that she has a combined impairment greater than that caused by the 1990 injury, the Second Injury Fund is responsible for her benefits.
Additionally, Miller argues that she is entitled to attorney's fees because Georgia-Pacific is controverting her entitlement to permanent and total disability and the amount of temporary total disability. However, because we affirm the Commission's ruling that Miller did not suffer a new compensable injury in 1998, these issues are moot.
Affirmed.
Robbins and Griffen, JJ., agree.
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