{"id":"alj-G702582-2024-10-08","awcc_number":"G702582","decision_date":"2024-10-08","opinion_type":"alj","claimant_name":"Nathan Tackett","employer_name":"City Of Little Rock","title":"TACKETT VS. CITY OF LITTLE ROCK AWCC# G702582 October 08, 2024","outcome":"denied","outcome_keywords":["dismissed:1","denied:2"],"injury_keywords":["shoulder","wrist","back"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/TACKETT_NATHAN_G702582_20241008.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"TACKETT_NATHAN_G702582_20241008.pdf","text_length":14575,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nAWCC FILE No G702582 \n \n \nNATHAN TACKETT, EMPLOYEE       CLAIMANT \n \nCITY OF LITTLE ROCK, SELF-INSURED EMPLOYER        RESPONDENT \n     \nRISK MANAGEMENT RESOURCES, TPA          RESPONDENT \n \n \n \nOPINION FILED 8 OCTOBER 2024 \n \n \n \nHeard before Arkansas Workers’ Compensation Commission (AWCC) Administrative Law \nJudge JayO. Howe on 10 July 2024 in Little Rock, Arkansas. \n \nThe Davis Law Firm, Mr. Gary Davis, appeared for the claimant. \n \nWorley, Wood & Parrish, PA, Ms. Melissa Wood, appeared for the respondents. \n \nI.  STATEMENT OF THE CASE \n \nThe above-captioned case was heard on 10 July 2024 in Little Rock, Arkansas, after \nthe parties participated in a pre-hearing telephone conference on 21 May 2024. The \nsubsequent Pre-hearing Order, admitted to the record without objection as Commission’s \nExhibit No 1, was entered on the day following the conference.  \nThat Order also set forth the following STIPULATIONS: \n1.  The AWCC has jurisdiction over this claim. \n \n2.  An employee/self-insured employer/TPA relationship existed at all relevant \ntimes, including on 17 March 2017 when the claimant sustained an accepted \ncompensable injury to his right shoulder. \n \n3.  The claimant’s average weekly wage at the time of the injury was $1,611.94, \nwhich entitled him to the maximum TTD/PPD rates of $661/$496 per week. \n \n4.  The respondents have paid permanent partial disability benefits pursuant to a \n26% permanent impairment rating to the body as a whole. \n \n\nTACKETT- G702582  \n2 \n \nThe Order stated the following ISSUES TO BE LITIGATED: \n1.  Whether the claimant is entitled to wage loss disability benefits. \n2.  Whether the claimant is entitled to an attorney’s fee. \nThe parties’ CONTENTIONS, as set forth in their pre-hearing questionnaire \nresponses, were incorporated into the Pre-hearing Order. The claimant CONTENDS that \nhe sustained compensable injuries to his right shoulder on 17 March 2017, that he has been \nfound to have permanent impairment, and that he is entitled to a wage loss disability \ndetermination. The respondents CONTEND that all appropriate benefits are being paid \nwith regard to the claimant’s compensable right shoulder injury. They further contend that \nthe claimant continued to work for the City of Little Rock after his injury until he retired \nand moved to Florida. \n The following WITNESSES testified at the hearing: the claimant testified on his \nown behalf, and Major Christina Plummer testified on behalf of the respondents. \n The EVIDENCE consisted of the hearing testimony, Commission’s Exhibit No 1 (the \n22 May 2024 Prehearing Order), and Claimant’s Exhibit No 1 (78 pages of medical records). \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n Having reviewed the record as a whole and having heard testimony from the \nwitnesses, observing their demeanor, I make the following findings of fact and conclusions \nof law under ACA § 11-9-704: \n 1.  The AWCC has jurisdiction over this claim. \n 2.  The previously noted stipulations are accepted as fact. \n3.  The claimant failed to prove by a preponderance of the evidence that he is \nentitled to wage loss benefits in any amount. \n \n4.  The claimant failed to prove by a preponderance of the evidence that he is \nentitled to an attorney’s fee. \n \n \n\nTACKETT- G702582  \n3 \n \nIII.  HEARING TESTIMONY  \nClaimant Nathan Tackett \n The claimant in this matter is a 62-year-old retired police officer. He is a high school \ngraduate and testified that he attained between 55 and 60 hours of college credit (which he \nequates to an associate’s degree). Before joining the Little Rock Police Department (LRPD), \nthe claimant worked for the Yell County Sherrif’s Office and the Russellville Police \nDepartment. His service with the LRPD began in 1985 as a Patrol Officer. Between 1988 \nand 1990, the claimant worked as an Undercover Detective before returning briefly to the \nrole of Patrol Officer. He served as an Investigator in the LRPD’s Training Division for a \nnumber of years and was then promoted to Sergeant, supervising the Police Personnel Unit \nuntil February of 2001. \n In January of 2002, the claimant was promoted to the rank of Lieutenant and served \nin multiple supervisory positions at that rank. He was assigned as Shift Commander for the \nDowntown Patrol Division’s Day Watch in March of 2017. The claimant described that role \nas mid-level management, supervising the Sergeants responsible for patrol squads and \nensuring that field work and administrative processes were handled appropriately. He was \nalso responsible for responding to some calls and patrol duties alongside other officers. \n The claimant sustained his injury during annual in-service training on 17 March \n2017, when he fell on his shoulder while simulating an on-foot pursuit. His right shoulder \ninjury was accepted as compensable, and he received various treatments over the next few \nyears, ultimately having shoulder-replacement surgery in June of 2021. In January of 2018, \nhe took a position as Shift Commander for the LRPD’s Northwest Division. He continued to \nearn the same or more money in that role as he did before his injury. \n In October of 2021, the claimant retired from LRPD at the rank of Lieutenant. His \nretirement date was scheduled several years before his compensable injury when he \n\nTACKETT- G702582  \n4 \n \nenlisted in LRPD’s voluntary Deferred Retirement Option Plan (the DROP). At the time \nthat he enrolled in the DROP, the program set a participant’s retirement date seven years \nafter enrollment.  \nThe claimant testified that despite his retirement being required by participating in \nthe DROP, he had the option of separating for 90 days and then applying for rehire. He \nfurther testified that he believed being rehired would require completing a physical agility \ntest that consisted of running, jumping fences, dragging weighted dummies, and the like; \nhe did not believe that he could complete such testing because of the permanent limitations \nassociated with his shoulder injury. \n The claimant testified that he was earning $39.86 per hour, or about $82,908 per \nyear, at the time of his retirement. He stated that he also earned extra money though \nuniformed contract security work at local businesses and events. \n After retiring from LRPD, the claimant was rehired by the city as an Investigator in \nthe city’s Human Resources Department. He described the work as part-time, but it paid \n$35.00 per hour. In April of 2023, the claimant moved to Florida, where he continues to \nundergo authorized treatment by way of occasional injection therapy and/or physical \ntherapy. While he still experiences some pain in his shoulder, he is not being prescribed \npain medication.  \nHe currently maintains full-time employment with the University of West Florida’s \nCampus Police and Security Department, a job that he described as much less demanding \nthan his former roles with LRPD. “[I]n essence we’re a paid—a very well paid security \nguard. [sic] Our primary duties, they have a very non-existent call load. It’s locking up \nbuildings at night, letting somebody into an office that’s lost their keys or jump starting a \ncar. They just don’t—they don’t have a call load there.” [TR at 27.] His salary for that job is \n$50,000 per year. He also receives approximately $3,000 per month in retirement \n\nTACKETT- G702582  \n5 \n \npayments. In addition to his full-time work with the university, the claimant performs \ncontract work conducting background checks for government security contractors. Those \njobs involve telephone calls and computer work, and he estimates that work to earn about \n$35 per hour. The claimant did not relay any limitations in that work related to his injury. \nInstead, he testified, “I can pick and choose when I want to do it and how much, you know, I \ncan take on as far [as] a work load.” [TR at 40.] \nStill, he stated that he was concerned about being able to continue working in the \njob because of trouble he began having in his left arm, which he attributed to compensating \nfor difficulties with his right shoulder. At the time of the hearing, he had recently \nundergone a left wrist carpel tunnel procedure.  \n The claimant testified that at the time he entered the DROP, he anticipated being \nable to reapply with LRPD after the 90-day period and resume police work for the city, \nalong with the contract security work he would be able to do on the side. He explained: \nJudge:  ... So was it your understanding of the 90-day, and then, come back \nin your same position, would it be at the same level of pay? \n \nClaimant:  No, sir. You would have to come back the way regulations are \nwritten, you may have to start at entry-level position or you could be \nappointed by the Mayor or City Manager at a higher level, but it would have \nto be appointed by the— \n \nJudge:  A new hire for those purposes? \n \nClaimant:  Yes, sir. \n \n [TR at 30.] \nMajor Christina Plummer \n Major Plummer testified that she has been an LRPD employee for a little over 20 \nyears. She was familiar with the claimant’s injury and verified his testimony on his LRPD \nsalary. She confirmed that enrolling in the DROP is voluntary and that once enrolled, an \n\nTACKETT- G702582  \n6 \n \nemployee’s retirement is mandatory at the program’s end. She also confirmed a pre-\nemployment physical agility test for new hires. \nIV.  ADJUDICATION \nThe stipulated facts, as agreed during the pre-hearing conference, are outlined \nabove. It is settled that the Commission, with the benefit of being in the presence of the \nwitness and observing his or her demeanor, determines a witness’ credibility and the \nappropriate weight to accord their statements. See Wal-Mart Stores, Inc. v. VanWagner, \n337 Ark. 443, 448, 990 S.W.2d 522 (1999).   \n The claimant has been assigned, and the respondents have accepted, a permanent \nimpairment rating, which is a prerequisite for considering the effects of a compensable \ninjury in a claim for wage loss benefits. Wal-Mart Stores, Inc. v. Connell, 340 Ark. 475, 10 \nS.W.3d 882 (2000). In considering a claim for wage loss benefits, the Commission must \nconsider evidence demonstrating the degree to which the worker’s impairment impacts his \nearning capacity, as well as other factors such as the worker’s age, education, work \nexperience, and other matters which may reasonably be expected to affect the worker’s \nfuture earning capacity. Ark. Code Ann. § 11-9-522(b)(1). Those other matters may include \nmotivation, post-injury income, credibility, and demeanor, among others. Glass v. Edens, \n233 Ark. 786, 346 S.W.2d 685 (1961); City of Fayetteville v. Guess, 10 Ark. App. 313, 663 \nS.W.2d 946 (1984); Curry v. Franklin Electric, 32 Ark. App. 168, 798 S.W.2d 130 (1990). \n In this case, the claimant is a 62-year-old with a high school diploma, near \nassociate’s degree-level college credits, and extensive experience working in the policing \nand security fields. Much of his police experience is at the supervisory level with \nadministrative responsibilities. After sustaining his shoulder injury, the claimant \ntransferred from one supervisory position to another within LRPD and continued making \n\nTACKETT- G702582  \n7 \n \nthe same or more money in that role. His injury did not interrupt his being able to \nsuccessfully work to his pre-planned retirement date.  \n After reaching his retirement date, the claimant utilized his investigative and \nadministrative experience in an investigator job with the City of Little Rock. He earned \n$35.00 per hour working part-time, approximately 12% less than his pre-retirement full-\ntime wage rate. He did not explain his reason for leaving that role; but after moving to \nFlorida, he began earning $50,000 per year as a full-time officer at a public university \ncampus. He does not relate that work as being in-line with the duties and responsibilities of \neven a patrol officer at his former employer. The pay seems commensurate. The claimant \ndescribed the job as “very well paid” given the workload. He offered no testimony as to any \nother higher-responsibility jobs, commensurate with his years of supervisory experience, \nthat he applied for but was unable to secure because of his physical limitations. Absent any \nevidence towards his efforts in that regard, I am unable to make a determination on his \nwillingness to reenter the workplace at a level of responsibility and pay commensurate with \nhis pre-injury earnings.  \n The claimant also earns approximately $35.00 per hour performing background \nchecks for companies contracted in providing security clearances for government workers. \nHe described being able to assume as much of a case load in that role as he chooses, and did \nnot testify as to any limitations related to his shoulder injury. \n He continues to see an authorized provider in Florida, who anticipates performing \ninjection therapy up to twice a year; but he is not currently prescribed medication for his \nshoulder injury; and absent speculating that his recent left carpel tunnel procedure may \nhave been related to compensating for his right shoulder injury, he did not offer much \nexplanation as to how his injury limits his ability to function in the workplace and how \nthose limitations impact his ability to earn wages. \n\nTACKETT- G702582  \n8 \n \n Instead, the thrust of the claimant’s argument appears to be based on his belief that \nhad he not been injured, he would have eventually reapplied and been rehired with LRPD, \nand his speculation that his injury prevents him from being able to complete a pre-hire \nagility test for that employment. He also testified, however, that if he had gone down that \npost-retirement path, absent a special appointment from the mayor, he would have been \nhired back at an entry-level position and wage. \n It is not disputed that the claimant was assigned a 26% permanent impairment \nrating to the body as a whole and that rating was accepted and paid by the respondents. \nBased on the evidence before me, I do not find that the claimant sustained a wage-loss \nearning capacity in excess of his assigned and accepted permanent impairment rating. \nAccordingly, his claim for wage loss benefits must fail. Because he failed to meet his burden \non his claim for wage loss benefits, his claim for an attorney’s fee is moot. \nVI.  ORDER \n Consistent with the findings of fact and conclusions of law set forth above, this claim \nis denied and dismissed. \nSO ORDERED. \n \n________________________________ \n       JAYO. HOWE \n       ADMINISTRATIVE LAW JUDGE","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION AWCC FILE No G702582 NATHAN TACKETT, EMPLOYEE CLAIMANT CITY OF LITTLE ROCK, SELF-INSURED EMPLOYER RESPONDENT RISK MANAGEMENT RESOURCES, TPA RESPONDENT OPINION FILED 8 OCTOBER 2024 Heard before Arkansas Workers’ Compensation Commission (AWCC) Administrative Law Judge ...","fetched_at":"2026-05-19T22:47:35.119Z","links":{"html":"/opinions/alj-G702582-2024-10-08","pdf":"https://labor.arkansas.gov/wp-content/uploads/TACKETT_NATHAN_G702582_20241008.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}