BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. G007596/G306766/G407852/G JOSEPH WORK, Employee CLAIMANT

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1 BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. G007596/G306766/G407852/G JOSEPH WORK, Employee CLAIMANT ARKANSAS HIGHWAY & TRANSPORTATION DEPT., Employer RESPONDENT PUBLIC EMPLOYEE CLAIMS DIVISION, Carrier RESPONDENT OPINION FILED SEPTEMBER 12, 2017 Hearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Fort Smith, Sebastian County, Arkansas. Claimant represented by EDDIE H. WALKER, JR., Attorney, Fort Smith, Arkansas. Respondents represented by CHARLES MCLEMORE, Attorney, Little Rock, Arkansas. STATEMENT OF THE CASE On August 21, 2017, the above captioned claim came on for a hearing at Springdale, Arkansas. A pre-hearing conference was conducted on June 28, 2017, and a pre-hearing order was filed on that same date. A copy of the pre-hearing order has been marked Commission's Exhibit #1 and made a part of the record without objection. At the pre-hearing conference the parties agreed to the following stipulations: 1. The Arkansas Workers Compensation Commission has jurisdiction of the within claim. 2. The employee/employer/carrier relationship existed on or about August 3, 2010 (G007596); August 15, 2013 (G306766); June 4, 2014 (G407852); and February 8, 2016 (G602717). 3. On August 3, 2010 claimant suffered a compensable injury to his lumbar spine. Respondent paid compensation benefits including permanent partial disability benefits based upon a 16% impairment rating to the body as a whole. 4. Claimant suffered a compensable injury to his lumbar spine on August 15, 2013 and respondent paid claimant compensation benefits.

2 2 5. Claimant suffered a compensable injury to his lumbar spine on June 4, 2014 and respondent paid claimant some compensation benefits. 6. Claimant suffered a compensable injury to his cervical and lumbar spine on February 8, Respondent paid claimant compensation benefits including permanent partial disability benefits based upon a 3% impairment rating to the body as a whole. 7. Claimant s average weekly wage on February 8, 2016 equaled $ for compensation rates of $ for total disability benefits and $ for permanent partial disability benefits. At the pre-hearing conference the parties agreed to litigate the following issues: 1. Claimant s entitlement to a permanent physical impairment rating for the June 4, 2014 lumbar spine injury. 2. The extent of claimant s wage loss disability. 3. Attorney s fee. At the time of the pre-hearing conference claimant contended that in addition to the 16% impairment rating he returned on January 28, 2014 for previous surgeries, he should also receive a 3% impairment rating with regard to the June 4, 2014 injury and the surgery that resulted from that injury. At the hearing claimant contended that there have since been ratings assessed that are in excess of the 3% so claimant now contends that he is entitled to whatever impairment rating the medical evidence shows over and above that which respondent has already accepted. Claimant also contends that he is entitled to wage loss disability in addition to his permanent impairment ratings. Claimant also contends that his attorney is entitled to an appropriate attorney fee. Specifically, claimant contends that any impairment over and above that which respondent accepted as of the pre-hearing conference is controverted. The respondent s contentions were set forth in Exhibit 1 which was attached to the pre-hearing order. In addition, at the hearing, respondent noted that it had asked Dr.

3 3 Mangels for an impairment rating as well as Dr. Randolph. Respondent has accepted a 28% impairment rating assigned by Dr. Randolph which is 9% more than respondent had previously accepted. Respondent agrees to pay an additional 9% and since claimant asked for an additional 3% with an attorney fee, respondent acknowledges that it owes an attorney fee on 3% of that rating. From a review of the record as a whole, to include medical reports, documents, and other matters properly before the Commission, and having had an opportunity to hear the testimony of the witnesses and to observe their demeanor, the following findings of fact and conclusions of law are made in accordance with A.C.A : FINDINGS OF FACT & CONCLUSIONS OF LAW 1. The stipulations agreed to by the parties at a pre-hearing conference conducted on June 28, 2017 and contained in a pre-hearing order filed that same date are hereby accepted as fact. 2. Respondent has agreed to pay claimant an additional 9% impairment rating for a total of 28% to the body as a whole. Claimant has met his burden of proving by a preponderance of the evidence that his total anatomical impairment rating equals 30% to the body as a whole. 3. Claimant has met his burden of proving by a preponderance of the evidence that he has suffered a loss in wage earning capacity in an amount equal to 65% to the body as a whole. 4. Pursuant to A.C.A , respondent is entitled to an offset for benefits claimant is receiving from his disability retirement from the Arkansas Highway & Transportation Department. 5. Respondent has controverted claimant s entitlement to benefits in the amount of 5% for his impairment rating and the 65% awarded for wage loss.

4 4 FACTUAL BACKGROUND The claimant is a 52-year-old man with a twelfth grade education who lives in Mulberry. Claimant worked for the respondent approximately eleven years primarily driving a dump truck or low boy. Claimant has suffered multiple compensable injuries over the years while working for respondent. Four of those claims are the subject of this hearing. These claims include compensable injuries to claimant s lumbar spine on August 3, 2010; August 15, 2013; June 4, 2014; and February 8, In addition to the lumbar spine, the February 8, 2016 claim also includes an injury to claimant s cervical spine. As a result of his compensable injuries the claimant has undergone several surgical procedures. These procedures include a L5-S1 discectomy on September 30, 2010; lumbar laminectomy and fusion at L4-5 on February 11, 2011; hardware removal on January 28, 2013; fusion at L3-4 and hardware removal at L5-S1 on January 26, 2015; and hardware removal at L3-4 with fusion extension at L2-3 on August 4, The first four surgical procedures were performed by Dr. Arthur Johnson and the last procedure was performed by Dr. Kyle Mangels. On January 28, 2014, Dr. Johnson assigned claimant a 16% impairment rating to the body as a whole. The parties have stipulated that this rating was accepted and paid. The parties have also stipulated that after claimant s most recent injury he was assigned an additional 3% impairment rating which was also accepted and paid by the respondent. Claimant filed this claim contending that he was entitled to an impairment rating for the June 4, 2014 injury. He also requests permanent partial disability benefits for wage loss and a controverted attorney fee. ADJUDICATION The first issue for consideration involves claimant s anatomical impairment. As previously noted, the parties have stipulated that respondent has accepted and paid

5 5 permanent partial disability benefits based on a 16% rating to the body as a whole and a 3% rating to the body as a whole for a total of 19% to the body as a whole. Subsequent to claimant s hearing request for an impairment rating for the June 4, 2014 injury, respondent requested an impairment rating report from Dr. Mangels. In a report dated August 4, 2017, Dr. Mangels opined that claimant had a total rating of 30% to the body as a whole for his compensable injuries. Respondent also had Dr. Randolph review claimant s medical records and he opined in a report dated August 14, 2017, that claimant has a total impairment rating of 28% to the body as a whole for his compensable injuries. At the time of the hearing respondent agreed to pay permanent partial disability benefits based on the 28% rating assigned by Dr. Randolph. This would be an additional 9% over and above the 19% previously accepted and paid. Claimant contends that the 30% rating assigned by Dr. Mangels is correct. I agree based upon my finding that Dr. Mangels opinion is credible and entitled to great weight. Dr. Mangels was the claimant s authorized treating physician and performed the last surgical procedure on claimant s lumbar spine. Dr. Randolph was not the claimant s authorized treating physician and Dr. Randolph has not examined the claimant but instead has only reviewed medical records. Based on this evidence, I find that Dr. Mangels opinion is entitled to greater weight. Accordingly, based on Dr. Mangels opinion, which I find to be credible and in accordance with the AMA Guides, I find that claimant s total anatomical impairment equals 30% to the body as a whole. The 30% rating is an additional impairment of 11% over and above the 19% which respondent had previously accepted and paid. At the time of the pre-hearing conference, claimant contended that he was entitled to an additional 3% impairment rating for the June 4, 2014 injury. Respondent acknowledges that it owes a fee on that amount. The issue is whether respondent controverted the remaining 8% of the total 30%

6 6 impairment rating. I find that respondent only controverted 2% of the remaining 8%. At the time of the pre-hearing conference claimant was requesting an additional 3% for the June 4, 2014 injury. Respondent in its contentions stated that no other ratings had been assigned, but it had requested that Dr. Mangels address the amount of permanent impairment claimant had for all of his compensable injuries. This resulted in the 30% rating by Dr. Mangels on August 4, In addition, respondent also obtained a rating from Dr. Randolph of 28% in his report of August 14, 2017 and as previously discussed respondent accepted that 28% impairment rating. The question of whether a claim is controverted is one of fact to be determined from the circumstances of the particular case. Climer v. Drake s Backhoe, 7 Ark. App. 148, 644 S.W. 2d 637 (1983); Revere Copper & Brass, Inc. v. Talley, 7 Ark. App. 234, 647 S.W. 2d 477 (1983). Furthermore, the mere failure of an employer to pay compensation benefits does not amount to controversion in and of itself, especially where the carrier accepts the injury as compensable and is attempting to determine the extent of disability. Revere Copper & Brass, Inc., supra. I find that respondent in this case was attempting to determine the extent of claimant s disability. As previously noted, claimant originally contended that he was entitled to an additional 3% impairment rating for the June 4, 2014 compensable injury. In response to this contention, respondent indicated that no ratings beyond those previously accepted and paid had been assigned but it was requesting that Dr. Mangels address the amount of claimant s permanent impairment. Claimant received an impairment rating from Dr. Mangels and also from Dr. Randolph. Upon receipt of Dr. Randolph s impairment rating respondent accepted an additional impairment. Based on this evidence, I find that in addition to the fee on the 3% requested by claimant, respondent also controverted an additional 2% which is the difference between the ratings assigned by Drs. Mangels and Randolph.

7 7 Thus, of the additional 11% impairment over and above the 19% previously paid by respondent, I find that respondent controverted the 3% requested by claimant at the time of the pre-hearing conference and the 2% difference between the ratings assigned by Drs. Randolph and Mangels. I do not find that respondent controverted the additional 6% which it accepted after receiving the reports from Drs. Randolph and Mangels. The next issue for consideration involves the extent of claimant s wage loss. Notably, claimant does not contend that he is permanently totally disabled. Pursuant to A.C.A (b)(1) when considering claims for permanent partial disability benefits in excess of the percentage of permanent physical impairment, the Commission may take into account various factors including the percentage of impairment as well as the employee s age, education, work experience, and all other matters reasonably expected to affect his future earning capacity. Here, as previously discussed, the claimant has a 30% impairment as a result of his compensable injuries. On May 15, 2017, Dr. Mangels assigned claimant a 20-pound lifting restriction. Dr. Mangels also completed a form specific to the respondent indicating that claimant could constantly perform data entry/typing and simple grasping work. Dr. Mangels indicated that claimant could frequently stand/walk, sit, and push and pull. Dr. Mangels indicated that claimant could occasionally twist, bend, squat, kneel, climb, reach, flag traffic, weedeat, operate foot controls, and drive a car/truck. Claimant presented these restrictions to the respondent and was informed that no work was available within those restrictions. The claimant is a 52-year-old man and he has a 12 th grade education. Claimant worked for the respondent driving a truck for eleven years. Prior to his employment with the respondent claimant worked driving a truck for FedEx. Claimant testified that in the performance of that job he was required to load and unload trailers and also work on the dock. Claimant performed this job for 18 ½ years. Prior to his employment with FedEx

8 8 the claimant worked for Lowe s. When claimant was not returned to work by the respondent, it offered claimant vocational rehabilitation with Heather Taylor. Taylor is a vocational rehabilitation counselor and she testified at the hearing. Taylor testified that she met with the claimant in June in order to complete a vocational evaluation. In the course of that evaluation Taylor gave the claimant a Wide Range Achievement Test which measures academic achievement in four different areas. Claimant s test results included Word Reading at the grade equivalent of 4.8; Sentence Comprehension at a grade equivalent of 7.0; Spelling at the grade equivalent of 3.5; and Math Computation at the grade equivalent level of 4.5. Taylor testified that claimant did not have many skills that would transfer into his current physical capacity of work which is light duty. As far as his skills that would transfer into his current physical capacity of work, which is light duty, he didn t have a tremendous amount of transferrable skills. He had a very limited skill set that would transfer into a light category, so, therefore, the occupations that he would be able to pursue in a light category would likely be of an unskilled or semi-skilled nature that didn t require education beyond high school or any prior experience or any type of thing that didn t require probably beyond on-the-job training. Because claimant had not used a computer for any of his jobs in the last twenty years, Taylor recommended that claimant undergo a basic computer course at the Adult Education Center. Claimant testified that he enrolled in those classes and other than a period of time he missed following the death of his father he has attended those classes. Taylor went on to testify that to date she has identified four jobs that claimant might be able to perform. These jobs include work as a cashier at a hotel in Fort Smith; a cashier for Aramark at the University of Arkansas-Fort Smith; direct support professional for Friendship Community in Fort Smith; and van driver for Area Agency on Aging in Paris. Claimant testified that he had applied for each of those jobs but had not obtained employment. In addition, claimant testified that he also applied for various other jobs as

9 9 required in order to receive unemployment compensation benefits. Finally, Taylor testified that claimant had been cooperative in her efforts to provide vocational rehabilitation. The primary negative in this case for claimant involves the results of a functional capacities evaluation which was performed on May 3, The evaluation report indicates that the results of the evaluation show that claimant put forth an unreliable effort with 45 of 58 consistency measures within expected limits. The report also stated: Although he reported and/or demonstrated numerous functional limitations during his evaluation, he also exhibited numerous inconsistencies which invalidated his entire evaluation. Therefore, his current functional status remains unknown at this time due to his failure to produce sufficient objective data to substantiate his reported and/or demonstrated limitations. Although Dr. Mangels subsequently assigned the claimant permanent restrictions, he indicated in his May 15, 2017 report: Basically the functional capacity evaluation is unreliable and we can t really use it. I can t use it to give him permanent restrictions. Thus, while Dr. Mangels assigned claimant permanent restrictions, his true functional status remains unknown due to the inconsistencies present during the functional capacities evaluation. This is a factor to be considered in determining the extent of wage loss. City of Fayetteville v. Guess, 10 Ark. App. 313, 663 S.W. 2d 946 (1984). After consideration of all relevant wage loss factors in this case, I find that claimant has suffered a loss in wage earning capacity in an amount equal to 65% to the body as a whole. Based on the evidence presented, claimant has obviously suffered a significant loss in wage earning capacity. He has few transferrable skills and based on testing his academic skills range from the grade equivalent of 3.5 to 7.0. On the other hand, claimant s inconsistent effort on the functional capacities evaluation invalidated his

10 10 evaluation. Respondent has controverted claimant s entitlement to permanent partial disability benefits in an amount equal to 65% to the body as a whole. The final issue involves respondent s entitlement to an offset for benefits claimant is receiving from the Highway Department for disability retirement. Claimant testified that when respondent did not return him to work he applied for disability retirement benefits from the Highway Department and these benefits were approved. Claimant testified that he currently receives $ per month. Testifying at the hearing was Amanda Dinwiddie of the Public Employee Claims. Dinwiddie is the adjuster of claimant s claim and she testified that she received a work sheet from the Highway Department showing that claimant receives monthly disability retirement benefits in the amount of $ per month. The Highway Department also informed her that it had paid 68% of the monthly premium and claimant had paid 32%. Therefore, of the $ per month benefit, Dinwiddie calculated that 68% of the disability retirement would equal $74.96 per week which respondent claims as a credit. A.C.A provides for an offset in payment of workers compensation benefits for benefits an injured worker receives for the same period of disability. Furthermore, pursuant to Brigman v. City of West Memphis, 2013 Ark. App. 66, S.W. 3d, an employer is entitled to an offset for that portion of the disability retirement policy for which it paid. Pursuant to A..C.A as well as the decision Brigman, I find that respondent is entitled to an offset for disability retirement benefits claimant is receiving from the Highway Department. This offset is to be calculated at 68% which is that portion of the policy which was paid for by the Highway Department. For fiscal year 2018 that equates to $74.96 per the testimony of Dinwiddie which I find to be credible and entitled to great weight.

11 11 AWARD Claimant has met his burden of proving by a preponderance of the evidence that his total impairment rating for his compensable injuries equals 30% to the body as a whole. In addition, claimant has met his burden of proving by a preponderance of the evidence that he has suffered a loss in wage earning capacity in an amount equal to 65% to the body as a whole. Respondent has controverted claimant s entitlement to indemnity benefits in the amount equal to 5% for his impairment ratings and 65% for wage loss. Finally, pursuant to A.C.A , respondent is entitled to an offset for benefits claimant is receiving for disability retirement from the Highway Department. Pursuant to A.C.A (a)(1)(B), claimant s attorney is entitled to an attorney fee in the amount of 25% of the compensation for indemnity benefits controverted and payable to the claimant. Thus, claimant s attorney is entitled to a 25% attorney fee based upon the indemnity benefits awarded. This fee is to be paid one-half by the carrier and one-half by the claimant. All sums herein accrued are payable in a lump sum without discount and this award shall bear interest at the maximum legal rate until paid. The respondents are ordered to pay the court reporter s charges for preparing the hearing transcript in the amount of $ IT IS SO ORDERED. GREGORY K. STEWART ADMINISTRATIVE LAW JUDGE