OPINION FILED MAY 12, 2017

Transcription

1 BEFORE THE ARKANSAS WORKERS COMPENSATION COMMISSION CLAIM NO.: G FREDRICK A. WATERS, EMPLOYEE ABF FREIGHT SYSTEM, INC., EMPLOYER ARCBEST CORPORATION, INSURANCE CARRIER/TPA CLAIMANT RESPONDENT RESPONDENT OPINION FILED MAY 12, 2017 Hearing before Administrative Law Judge, James D. Kennedy on the 30 th day of March, 2017, at Little Rock, Pulaski County, Arkansas. Claimant was Pro Se. Respondent represented by John D. Davis, Attorney at Law, Little Rock, Arkansas. STATEMENT OF THE CASE A hearing was conducted in this matter on the 30 th day of March, 2017, to determine the issue of the average earned weekly wage in regard to TTD and PPD and mileage reimbursement. A prehearing conference was conducted in this claim on the 7 th day of March, 2017, and a Prehearing Order was filed on said date. The Order provides that the parties stipulated that the Arkansas Workers Compensation Commission has jurisdiction of the within claim and that an employer/employee relationship existed on December 7th, 2013, the date of the injury. A copy of the Pre-hearing

2 Order was introduced, without objection, as Commission s Exhibit 1. Additionally, the Prehearing Questionnaires of both parties were also made a part of the record without objection, with Respondents answer to the Prehearing Questionnaire as Commission s Exhibit 2" and Claimant s answer to the Prehearing Questionnaire as Commission s Exhibit 3". The hearing consisted of the testimony of the claimant, Frederick Waters, and also the testimony of Travis Sharp, an adjuster that has been employed by ABF Freight since Additionally, both parties introduced non medical documents into the record without objection. From a review of the record as a whole, to include 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 conclusion of law are made in accordance with Ark. Code Ann FINDINGS OF FACT AND CONCLUSIONS OF LAW 1. The Arkansas Workers Compensation Commission has jurisdiction over this claim. 2. The stipulations agreed to by the parties are hereby accepted as fact. 3. The respondents method of calculating the claimant s applicable average weekly wage and the figures that the respondent obtained are in fact 2

3 controlling. Additionally, although I find that there was some confusion as to the mileage to health care appointments between the respondent and the claimant, the claimant has failed to satisfy the applicable burden of proof, so again the respondent s figures are in fact controlling. REVIEW OF TESTIMONY AND EVIDENCE The Claimant testified on his own behalf. Claimant testified that the wage for the contract for hire at the time of the accident as ruled by the union contract with ABF and ratified on November 3 rd, was $22.76 per hour for a total of $ for a 40 hour week. Claimant also testified that he was referring to Arkansas Statute The claimant stated that the union contract provides the rate of pay at the time of the accident. No cross examination questions were asked. The Respondent called Travis Sharp, who testified that he worked for ABF Freight since 2006 and that he was the adjuster on this claim and had been an adjuster for ABF for approximately four years. (Tr. 8) The testimony of Mr. Sharp on how he calculated the claimant s average weekly wage follows: Q. All right. We ve introduced as Respondent s Exhibit Number One some documents. Let s begin with the issue about wages. Would you explain to Judge Kennedy how you determined the average weekly wage? A. I pulled his payroll history for the prior 52 weeks that he worked before the accident. I took his gross wages from those 52 weeks and I divided that amount by 52 to get the average weekly wage. Q. All right. And would you look at, I ve handed you Respondent s Exhibit Number one. Would you look at pages 1 and 2, please? On there there s a column 3

4 that says Gross Pay and then to the right Rate and Regular Hours, Double Hours, Overtime Hours, PTO Hours. PTO, is that vacation? A. That s paid time off. Q. Paid time off, all right. So there are columns under the regular hours that are less than 4o, but from my review of it, when you add the PTO to those hours, they all but one result in 40 hours per week, is that your understanding. A. Yes, that s my understanding. Q. The one that does not was August 17 of 2013, which is on page 1, and it is for 39-1/2 hours and there is not a half hour PTO to make up to 40, is that accurate? A. Yes, that s accurate as listed. Q. All right. But then above there, on December 29, 2012, there s 32 regular hours and 16 PTO hours, which the PTO was not actually hours worked, that was paid time off, so that put him over 40 hours for that week. Did you count the entire amount of the PTO for that, even though it was not actual hours worked? A. Yes, it would have been included. Q. All right. So then the gross wages that you used as the numerator to divide by or divide into, that includes all of the gross wages including the PTO, is that correct? A. That is correct. (Tr. 9, 10) Mr. Sharp was then questioned about the mileage, looking through pages 3 through 39 of the exhibit which consists of Google Map printouts. Mr. Sharp testified that the numbers on the Google maps correspond with the mileage reimbursement for the medical mileage and the references in the spreadsheet on how the mileage was calculated. So for Mr. Waters it was, if he was not scheduled to work on a day, it was based on his round trip mileage from his home 4

5 to the medical provider back to his home. If he was not scheduled to work, it would be round trip. Mr. Sharp further testified that if the claimant was scheduled to work at the North Little Rock Terminal, the mileage would be calculated by paying him additional mileage that he had to travel to deter from his normal route in order to attend that medical appointment. (Tr. 11) Additionally, Mr. Sharp testified that if the claimant was performing light duty work which he recalled was yard work such as being a terminal guard, he was to schedule physical therapy either before or after his light duty shift. On a light duty day, if the claimant had a physical therapy appointment in Cabot, the mileage would have been calculated as the additional mileage that the claimant would have had to travel to go to his appointment. For example, if it was ten miles from his house to go in to his light duty job and back to his house was ten miles, and then let s say in order to attend that physical therapy appointment he had to go from his house to physical therapy and then he should have went into his light duty shift and then back home. Let s say that was fifteen miles. I would pay the additional five miles, which was the five miles he had to deviate from his normal work route. (Tr. 12, 13) Additionally, Mr. Sharp stated that if there was a request for mileage reimbursement and no bill from a health care provider could be found that matched up with the request, then the mileage request would be denied. (Tr. 13) 5

6 The witness explained that the term AWP refers to the Respondents alternate work program where the claimant can come in and work light duty while they re recovering from their injury. If the term non-scheduled is used it means that the claimant did not work that day. If the records show that the claimant requested 80 miles and he was paid 69.5 miles, that would have been determined with Google maps. If the claimant requested 12 miles, and he was working, the claimant would be entitled to the additional mileage in which he had to travel outside his normal route to attend the therapy visit and that was how the.4 miles was determined, again based upon the testimony of Mr. Sharp. (Tr. 16) The claimant was then allowed to cross examine the witness with the first question being as follows: Q. Well, as far as questions on the figuring of the mileage on the out-of-route on the way to and from AWP, at what point was I ever informed that I had a certain schedule that I had to set? I was never informed of any scheduling. All my scheduling was done with Susan Plunkett, the workman s comp nurse, and everything was okayed through your office. A. The scheduling, you re talking about how you should have done it either before or after your shift? Q. That s the part, yes. (Tr. 18) A. Yeah, whoever set up your AWP at the terminal should have informed you of that. Q. And that would have been Jim Franklin, and I was never informed of that issue. (Tr.19) The Claimant was allowed to testify in what would normally be called 6

7 rebuttal. The claimant testified that the part that he was not informed about was the scheduling around work. Under cross examination, the claimant testified that his AWP schedule hours were from 3:00 to 11:00. (Tr. 20) His normal schedule was also between 3:00 to 11:00 and he did not rotate. Claimant further testified that if he had an appointment with Cabot Physical Therapy, he would get up in the morning and if it was scheduled at 9:00, he would go and do his exercising and then return home, eat and shower and get dressed for work. And then on days when I was working and I could get it scheduled at 1:00 o clock, I would go in at 1:00 o clock. Leave there, go home, change clothes, get in a different vehicle and then go to work. I never went to work from physical therapy. Claimant testified that the reason that he never went to work from physical therapy was that he was living too close and that he would have been at work way too early. (Tr. 21) Claimant admitted that on a couple of days he would go to physical therapy, then get a meal and then go to work. Claimant then testified in regard to mileage that he would turn in the same mileage. Claimant then stated no, I d put it one way. When I d go that way, I wrote one way on all of my appointments, or would write round trip on all my appointments and that is what I would do. If I left from physical therapy and I went to eat and then went to work, I would write it down as one way, and if I went back home, I would write it down two way. (Tr. 22) Claimant also testified that if he had a doctor visit in 7

8 West Little Rock he would record the mileage round trip because he would have a ride due to injections. (Tr. 23) Both the Claimant and Respondent submitted documents into the record that were admitted without objections. Claimant s exhibit consisted of 23 pages. Claimant s first document is a list entitled Shorted on Base Pay Figures. The document refers to a contract for hire and states that $ per guaranteed 40 hour week. The document also provides that the claimants benefits were figured on his previous 12 month history which is the wrong way to figure the claimant s base pay. (Cl. Ex. 1, P. 1) Claimant also introduced Ark. Code Ann into the record. (Cl. Ex. 1. P. 2) Claimant also introduces what appears to be the contract handbook which provides that the guaranteed workweek shall be forty hours per week, five consecutive days with a daily guarantee of eight hours per day, time and one-half after eight hours per day or forty hours per week. The document also contains a paragraph that states that the above guarantee may be broken in the event of an Act of God, or any other circumstance beyond the control of the Employer, however, any days lost may be made up by the employee on a regularly scheduled off day ahead of casuals or laid off employees with in a thirty day period. (Cl. Ex. 1, P. 3, 4) Claimant also introduced a page into evidence which has hand written on the bottom that it is a page in a union contract hand book with the hourly rate of 8

9 pay circled as as the rate of pay on the date of November 3, (Cl. Ex. 1, P. 5) Claimant also introduced pages of checks showing gross pay, (Cl. Ex. 1, P. 6-10) a document titled Mileage Arguement, (Cl. Ex. 1, P. 18) and documents titled Mileage Chart for Reimbursement. (Cl. Ex.1. P ) The Respondents also introduced non medical documents into evidence without objection. The documents consist of wage records (Resp. Ex. 1, P. 1, 2), Google maps mileage records (Resp. Ex. 1, 3-39), mileage paid (Resp. Ex. 1, P. 40), and a document titled mileage chart (Resp. Ex. 1, 41-48). These documents were the documents used by Travis Sharp during his testimony. DISCUSSION AND ADJUDICATION OF ISSUES The Claimant has the burden of proving by a preponderance of the evidence, that he is entitled to additional compensation benefits. In determining whether the claimant has sustained his burden of proof, the Commission shall review the evidence impartially, without giving the benefit of the doubt to either party. Ark. Code Ann Wade v. Mr. Cavanough s, 298 Ark. 364, 768 S.W.2d 521 (1989). Ark. Code Ann (a) (1) provides that compensation shall be computed on the average weekly wage earned by the employee under the contract of hire in force at the time of the accident and in no case shall be computed on less than a full-time work week in the employment. (2) Where the injured 9

10 employee was working on a piece basis, the average weekly wage shall be determined by dividing the earnings of the employee by the number of hours required to earn the wages during the period not to exceed fifty-two weeks preceding the week in which the accident occurred and by multiplying this hourly wage by the number of hours in a full-time workweek in the employment. (b) Overtime earnings are to be added to the regular weekly wages and shall be computed by dividing the overtime earnings by the number of weeks worked by the employee in the same employment under the contract of hire in force at the time of the accident, not to exceed a period of fifty-two weeks preceding the accident. The employee has the burden of proving that he was bound by contract to work 40 hours each work week if the work was made available. A & C Servs., Inc., v. Sowell, 44 Ark. App. 150, 870 S.W.2d 764 (1994). The claimant appears to be contending that his workers compensation rate was based on his previous 12 month work history average to determine his wage rate and not the contract for hire rate of $ per guaranteed 40 hour rate at the time of the accident on December 7, From the testimony and the documents submitted into the record, it appears that although there in fact was a contract, the claimant was not paid a salary but an hourly rate which falls under Ark. Code Ann (2) which provides that Where the injured employee was working on a piece basis, the 10

11 average weekly wage shall be determined by dividing the earnings of the employee by the number of hours required to earn the wages during the period not to exceed fifty-two (52) weeks preceding the week in which the accident occurred and by multiplying the hourly wage by the number of hours in a full-time workweek in the employment. (emphasis added) Since the Arkansas Workers Compensation act is statutorily - mandated to be strictly construed, I find that the respondent s method of calculating the claimant s average weekly wage is consistent with the statutory call and is therefor controlling. In regard to the claimant s travel expenses, I find that the claimant was not aware of the respondent s preferred method to schedule some of the health care appointments and that the claimant did return to home after an appointment on occasion. However, the claimant has the burden of proof in regard to these issues and the claimant has failed to satisfy his burden in regard to specific incidents After reviewing the evidence impartially, and without giving the benefit of the doubt to either party, I find that the respondents method of calculating the claimant s applicable average weekly wage and the figures that the respondent obtained are in fact controlling. Additionally, although I find that there was some confusion as to the mileage to health care appointments between the respondent 11

12 and the claimant, the claimant has failed to satisfy the applicable burden of proof, so again the respondent s figures are controlling. IT IS SO ORDERED. James D. Kennedy Administrative Law Judge 12