{"id":"alj-G307065-2023-12-22","awcc_number":"G307065","decision_date":"2023-12-22","opinion_type":"alj","claimant_name":"Russell Payne","employer_name":"Arkansas Department Of Transportation","title":"PAYNE VS. ARKANSAS DEPARTMENT OF TRANSPORTATION AWCC# G307065 DECEMBER 22, 2023","outcome":"granted","outcome_keywords":["granted:5","denied:1"],"injury_keywords":["cervical","neck","herniated","back"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/PAYNE_RUSSELL_G307065_20231222.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"PAYNE_RUSSELL_G307065_20231222.pdf","text_length":18502,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO.  G307065 \n \nRUSSELL A. PAYNE, Employee                                                                    CLAIMANT \n \nARKANSAS DEPARTMENT OF TRANSPORTATION, Employer          RESPONDENT                          \n \nPUBLIC EMPLOYEE CLAIMS DIVISION, Carrier                                   RESPONDENT                          \n \n \n AMENDED OPINION FILED DECEMBER 22, 2023 \n \nHearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Fort Smith, \nSebastian County, Arkansas. \n \nClaimant represented by EDDIE H. WALKER, JR., Attorney, Fort Smith, Arkansas. \n \nRespondents   represented   by   CHARLES   H.   MCLEMORE,   Attorney,   Little   Rock, \nArkansas. \n \n \n STATEMENT OF THE CASE \n  \n On  December  4,  2023,  the  above  captioned  claim  came  on  for  hearing  at  Fort \nSmith, Arkansas.  A pre-hearing conference was conducted on  October 4, 2023 and a \npre-hearing order was filed on that same date.  A copy of the pre-hearing order has been \nmarked as Commission’s Exhibit #1 and made a part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1.   The Arkansas Workers’ Compensation Commission has jurisdiction of the \nwithin claim. \n 2.   The prior Opinion of March 4, 2019 is final and res judicata. \n 3.   Respondent has accepted and paid or is paying permanent partial disability \nbenefits based upon impairment ratings of 14% and 12% assigned by Dr. Knox. \n 4.   Claimant reached maximum medical improvement on May 24, 2023. \n\nPayne – G307065 \n \n2 \n \n At the pre-hearing conference the parties agreed to litigate the following issues: \n1.    Wage loss disability. \n2.    Attorney’s fee. \n3.    Respondent’s  entitlement to an offset for disability  retirement benefits  \npursuant to A.C.A. §11-9-411. \n The claimant contends that he is entitled to wage loss disability over and above \nhis impairment ratings.  The claimant contends that his attorney is entitled to an attorney’s \nfee in regard to any wage loss disability awarded in this case. \n The  respondent’s  contentions  are  attached  to  the  Commission’s  Pre-Hearing \nOrder included in the hearing transcript as Commission Exhibit #1.\n From a review of the record as a whole, to include medical reports, documents, \nand other matters properly before the Commission, and having had an opportunity to hear \nthe testimony of the witnesses and to observe their demeanor, the following findings of \nfact and conclusions of law are made in accordance with A.C.A. §11-9-704: \n \n  FINDINGS OF FACT & CONCLUSIONS OF LAW \n \n 1.   The stipulations agreed to by the parties at a pre-hearing conference conducted \non October 4, 2023 and contained in a pre-hearing order filed that same date are hereby \naccepted as fact. \n 2.    Claimant has failed to prove by a preponderance of the evidence that he is \npermanently totally disabled as a result of his compensable injury.  Claimant has met his \nburden of proving by a preponderance of the evidence that he has suffered a loss in wage \nearning capacity in an amount equal to 50% to the body as a whole. \n\nPayne – G307065 \n \n3 \n \n 3.   Respondent has controverted claimant’s entitlement to all unpaid indemnity \nbenefits. \n 4.   Pursuant to A.C.A. §11-9-411 respondent is entitled to an offset in an amount \nequal to $189.06 per week. \n \n FACTUAL BACKGROUND \n Claimant is a 55-year-old man who suffered a compensable injury to his cervical \nspine when the hood of a truck fell on his head and neck area on May 17, 2013.   After \nsome initial medical treatment, claimant underwent surgery on September 24, 2013 in the \nform of a fusion and discectomy by Dr. Queeney for herniated discs at C5-6 and C6-7.  \nOn October 24, 2013, Dr. Queeney released claimant to return to work with restrictions. \n Claimant  continued  to  have  complaints  involving  his  neck  and  sought  medical \ntreatment from his primary care physician, Dr. Wilson.  By order dated January 27, 2014, \nclaimant was granted a change of physician to Dr. Wilson. Claimant’s treatment at that \ntime  included  cervical  epidural  steroid  injections;  medications;  work  restrictions;  and \nphysical therapy.  When claimant’s condition did not improve, Dr. Wilson referred claimant \nfor a neurosurgical evaluation with Dr. Luke Knox.  After some conservative treatment by \nDr. Knox, claimant was seen by Dr. Knox’s partner, Dr. Armstrong.  On June 22, 2017, \nDr. Armstrong performed surgery at the C3-4 and C4-5 levels.   \n Following   that   surgical   procedure,   Dr.   Knox   opined   that   claimant   had   an \nimpairment rating in an amount equal to 14% to the body as a whole.  10% of that rating \nwas attributable to the first surgery by Dr. Queeney and 4% to the second surgery by Dr. \nArmstrong. \n\nPayne – G307065 \n \n4 \n \n This claim was the subject of a prior hearing on January 28, 2019.  Following that \nhearing,  an  opinion  was  filed  on  March  4,  2019,  finding  that  respondent  had  not \ncontroverted payment of either the 10% or 4% impairment ratings, and that respondent \nwas not liable for payment of a penalty on the 10% impairment rating.  It also found that \nclaimant’s attorney had provided bona fide legal services and was entitled to a fee equal \nto claimant’s portion of the attorney fee in the amount of 12.5%. This opinion was not \nappealed and the parties have stipulated that it is final. \n Since the last hearing on January 28, 2019, claimant has continued to treat with \nDr. Knox and Dr. Armstrong.  In 2022, Dr. Armstrong performed a third surgical procedure \nwhich  consisted  of  a  fusion  from  C5-C7.    Dr.  Knox  has  opined  that  claimant  reached \nmaximum  medical  improvement  as  of  May  24,  2023,  and  he  assigned  claimant an \nadditional  impairment  rating  equal  to  12%  to  the  body  as  a  whole.   The  parties  have \nstipulated  that  respondent  has  accepted  and  paid,  or  is  paying,  permanent partial \ndisability benefits based upon the 14% and 12% ratings assigned by Dr. Knox. \n After his  first  two  surgeries,  claimant  returned  to  work  for  respondent as  a  crew \nleader.  He testified that he essentially continued performing his regular job duties which \nincluded heavy manual labor. Claimant did not return to work for respondent or for any \nother employer after the third surgery.  Claimant did not believe he could continue working \nfor  respondent  and  respondent  indicated  that  it  could  not  accommodate  claimant’s \npermanent work restrictions.  Claimant has filed for and is receiving disability retirement \nbenefits from respondent.   \n Claimant has filed this claim contending that he is entitled to benefits for wage loss \ndisability as a result of his compensable injury. Respondent contends that it is entitled to \n\nPayne – G307065 \n \n5 \n \nan offset for any disability retirement benefits pursuant to A.C.A. §11-9-411.  \n \nADJUDICATION \n Claimant  contends that  he  is  entitled  to  wage  loss  disability  over  and  above his \nimpairment ratings.  Claimant did not specifically contend that he is permanently totally \ndisabled; however, claimant testified that if there was some kind of work he could do he \nwould be doing it and that he does not believe he could hold down a 40 hour per week \njob given his medication and physical limitations.  Permanent total disability is defined in \nA.C.A. §11-9-519(e)(1) as the “inability because of compensable injury or occupational \ndisease, to earn any meaningful wages in the same or other employment.”  Furthermore, \nclaimant has the burden of proving by a preponderance of the evidence that he suffers \nfrom an inability to earn any meaningful wage in the same or other employment.  A.C.A. \n§11-9-519(e)(2). \n I find that claimant has failed to meet his burden of proving by a preponderance of \nthe evidence that he is permanently totally disabled as a result of his compensable injury.  \nInstead, I find based upon the appropriate wage loss factors that claimant has suffered a \nloss  in  wage  earning  capacity  in  an  amount  equal  to  50%  to  the  body  as  a whole.    In \nconsidering  claims  for  permanent  disability  benefits  in  excess  of  the  impairment,  the \nCommission may take into account various factors.  These factors include the percentage \nof  permanent  physical  impairment  as  well  as  the  claimant’s  age,  education,  work \nexperience,  and  all  other  matters  reasonably  expected  to  affect  his  future earning \ncapacity.  A.C.A. §11-9-522(b)(1). \n The  claimant  is  a  55-year-old  high  school  graduate.    He  has  worked  for  the \n\nPayne – G307065 \n \n6 \n \nrespondent for approximately 25 years.  Claimant previously worked a variety of manual \nlabor jobs.  These included work at Nichols Welding Supply; working at a sand plant that \nwas a subsidiary of Chrisman Ready-Mix; working in the melt furnace, melting aluminum \nfor custom wheels at Superior Wheels; and working at Chrisman Ready-Mix operating a \nrock crusher, pit loader, and haul trucks. \n As  previously  noted,  claimant  has  worked  for  the  respondent  for  25  years.  \nClaimant began his employment with respondent as a laborer and worked up to a job as \na crew leader.  As a crew leader, claimant spent some two to three hours in his office per \nday  before  going  out  to  a  job  site.    Claimant  was  responsible  for  tracking  time  of \nemployees, inputting mileage for all equipment, and checking service records.  He also \ntestified  that  he  had  paper  files  to  maintain  such  as  maintenance  records.  Claimant \ntestified that he used a particular computer program to keep track of time and mileage.  \nAfter  performing  his  office  duties,  claimant  would  go  to  the  job  site  where  he  was \nresponsible for supervising a crew.  However, claimant’s job also required him to perform \nmuch of the manual labor performed by the laborers.  This included operating skid steers, \ndozers, track hoes, pavers, rollers, and dump trucks.  Claimant was also required to train \nnew employees, set up jobs, and order asphalt and other materials. \n As previously noted, respondent indicated it could not accommodate claimant’s \npermanent work restrictions and return him to his prior job as a crew leader.   \n At Dr. Knox’s request, claimant underwent a functional capacities evaluation  on \nApril 12, 2023.  The evaluation determined that claimant gave a consistent and reliable \neffort  with  51  of  53  consistency  measures  within  expected  limits.    The  evaluation \ndetermined that claimant had the ability to lift/carry up to 20 pounds on a frequent basis \n\nPayne – G307065 \n \n7 \n \nwith an occasional right upper extremity lift of 30 pounds and a left upper extremity lift of \n20 pounds.  The evaluation determined that claimant demonstrated the ability to perform \nwork in the medium classification of work over the course of a normal eight hour day. \n Following  the  evaluation,  claimant  returned  to  Dr.  Knox  on  May  24,  2023  who \nnoted in his report that he had reviewed claimant’s functional capacity evaluation which \nhad been done appropriately; had consistent findings; and released claimant to return to \nmedium class work.  He further noted that he did not believe claimant should pursue a \njob that would require jarring and vibration nor in the operation of heavy equipment.  Other \nthan  those  limitations,  Dr.  Knox  indicated  the  functional  capacity  evaluation  should  be \nreferred to for complete details on claimant’s limitations.   \n On  September  11,  2023,  claimant  met  with  Keondra  Hampton  for  a  vocational \nrehabilitation  evaluation.    At  that  evaluation  Hampton  obtained  information  regarding \nclaimant’s physical limitations, his work history, his education, and various other factors.  \nHampton indicated that claimant was capable of working within the medium classification \nof work and her report lists various job openings that would be compatible with claimant’s \nskills, physical capabilities, work history and education.  These jobs ranged in wages of \n$16.08 per hour up to $23.75 per hour.   In a subsequent letter from Hampton to claimant \ndated October 9, 2023, Hampton identified various other jobs which ranged in wages of \n$14.70 per hour to $21.84 per hour.   \n Apparently,  there  was  some  miscommunication  and  circumstances  involving \nsickness  and  vacations  which  led  to  claimant  not  specifically  applying  for  any  of  these \njobs.  However, the relevancy of these jobs identified by Hampton is the fact that they are \njobs available within claimant’s physical limitations and skill levels. \n\nPayne – G307065 \n \n8 \n \n It is claimant’s testimony that he does not feel that he is capable of performing a \n40 hour per week job because he is only capable of working two or three days in a row \nbefore he might be unable to work due to pain.  Claimant also indicated that he is currently \ntaking opiate medication in the form of hydrocodone as a result of his work-related injury.  \nNotably, neither the functional capacity evaluation nor Dr. Knox indicated that claimant \nwas limited to working only two to three days per week and Dr. Knox did not indicate that \nclaimant  was  incapable  of  working  while  taking his  hydrocodone.   In  fact, according  to \nclaimant’s testimony, he had been taking hydrocodone and muscle relaxers since 2013 \nand was continuing to work for the respondent. \n \nA The hydrocodone and the muscle relaxers. \n \nQ Have you been taking those consistently since - - \n \nA Since 2013, yes. \n \nQ Okay.  How often did you take those?  Did you  \ntake them four times a day? \n \nA Most of the time. \n \nQ Since 2013? \n \nA On and off.  Like I said, back then it was, you \nknow, you have good days and you have bad days. \nMy second surgery, I took a lot more after the second \nsurgery than I did the first. \n \n Thus, claimant’s use of hydrocodone did not prevent  him from working subsequent \nto 2013 as a crew leader for the respondent. \n Finally, I note that claimant testified that he has not applied for, nor looked for any \njob.  A claimant’s lack of interest in employment is an impediment to the Commission’s \n\nPayne – G307065 \n \n9 \n \nfull assessment of a claimant’s loss and is a factor to be considered in determining wage \nloss.  City of Fayetteville v. Guess, 10 Ark. App. 313, 663 S.W. 2d 946 (1984); Oller v. \nChampion Parts Rebuilders, 5 Ark. App. 307, 635 S.W. 2d 276 (1982). \n After my review of the relevant wage loss factors presented in this case, I find that \nclaimant has failed to prove by a preponderance of the evidence that he is permanently \ntotally disabled.  Instead, I find that claimant has suffered a loss in wage earning capacity \nin  an  amount  equal  to  50%  to  the  body  as  a  whole.    Claimant  underwent  a  functional \ncapacities  evaluation  which  determined  that  he  was  capable  of  performing  work  in  the \nmedium  classification  of  work.    Dr.  Knox  in  his  report  of  May  24,  2023  noted  that the \nevaluation released claimant to return to work in the medium classification of work and in \naddition  to  the  restrictions  set  forth  in  the  evaluation  stated  that  claimant  should  not \nperform a job which required jarring and vibration or the use of heavy equipment.  The \nclaimant is a 55-year-old high school graduate and a vocational rehabilitation evaluation \nidentified  various  jobs  which  fall  within  claimant’s  limitations  and  skills  according  to \nHampton.    Accordingly,  I  find  that  claimant  is  entitled  to  permanent  partial disability \nbenefits based upon a loss in wage earning capacity in an amount equal to 50% to the \nbody as a whole. \n Respondent  has  controverted  claimant’s  entitlement  to  all  unpaid  indemnity \nbenefits. \n The final issue for consideration involves respondent’s contention that it is entitled \nto an offset for disability retirement benefits pursuant to A.C.A. §11-9-411.  That statute \nstates that any benefits paid to an injured worker shall be reduced in an amount equal to, \ndollar  for  dollar,  the  amount  of  benefits  the  injured  worker  has  received  for  the  same \n\nPayne – G307065 \n \n10 \n \nperiod of disability.  The reduction only applies to that portion paid for by the employer.  \nHere, claimant filed for and received disability retirement benefits from the respondent.  \nRespondent submitted into evidence on Page 19 of Respondent’s Exhibit #2 a worksheet \nsetting out its calculations regarding the amount of this offset.  Based upon the employer’s \ncontribution to claimant’s retirement disability, respondent is entitled to a disability offset \ncredit in the amount of $189.06 per week.  Although there was some initial issue regarding \nthe calculation of this amount, the parties at the hearing agreed that the offset amount of \n$189.06 is accurate. \n Accordingly,  I  find  that  respondent  is  entitled  to  an  offset  for  permanent  partial \ndisability benefits owed in the amount of $189.06 per week. \n \nAWARD \n Claimant has failed to prove by a preponderance of the evidence that he is \npermanently  totally  disabled as  a  result  of  his  compensable  injury.   However,  claimant \nhas proven by a preponderance of the evidence that he is entitled to permanent partial \ndisability benefits in an amount equal to 50% to the body as a whole based upon a loss \nin wage earning capacity.  Respondent has controverted claimant’s entitlement to unpaid \nindemnity benefits.   Pursuant to A.C.A. §11-9-715(a)(1)(B), claimant’s attorney is entitled \nto  an  attorney  fee  in  the  amount  of  25%  of  the  compensation  for  indemnity  benefits \npayable to the claimant.   Thus, claimant’s attorney is entitled to a 25% attorney fee based \nupon the indemnity benefits awarded.   This fee is to be paid one-half by the carrier and \none-half by the claimant.    \n \n\nPayne – G307065 \n \n11 \n \n In addition, respondent is entitled to an offset in the amount of $189.06 per week \nfor retirement disability benefits claimant is receiving from respondent pursuant to A.C.A. \n§11-9-411. \n Respondent is liable for payment of the court reporter’s charges for preparation of \nthe hearing transcript in the amount of $797.45. \n All sums herein accrued are payable in a lump sum and without discount. \n IT IS SO ORDERED. \n \n     __________________________________________ \n      GREGORY K. STEWART \n      ADMINISTRATIVE LAW JUDGE","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. G307065 RUSSELL A. PAYNE, Employee CLAIMANT ARKANSAS DEPARTMENT OF TRANSPORTATION, Employer RESPONDENT PUBLIC EMPLOYEE CLAIMS DIVISION, Carrier RESPONDENT AMENDED OPINION FILED DECEMBER 22, 2023 Hearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in ...","fetched_at":"2026-05-19T22:59:59.660Z","links":{"html":"/opinions/alj-G307065-2023-12-22","pdf":"https://labor.arkansas.gov/wp-content/uploads/PAYNE_RUSSELL_G307065_20231222.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}