{"id":"alj-H005620-2025-10-21","awcc_number":"H005620","decision_date":"2025-10-21","opinion_type":"alj","claimant_name":"Jerry Oliver","employer_name":"Arkansas Forestry Commission","title":"OLIVER VS. ARKANSAS FORESTRY COMMISSION AWCC# H005620 October 21, 2025","outcome":"granted","outcome_keywords":["granted:5"],"injury_keywords":["shoulder","back","lumbar"],"pdf_url":"https://www.labor.arkansas.gov/wp-content/uploads/OLIVER_JERRY_H005620_20251021.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"OLIVER_JERRY_H005620_20251021.pdf","text_length":32064,"full_text":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. H005620 \n \nJERRY OLIVER, Employee CLAIMANT \n \nARKANSAS FORESTRY COMMISSION, Employer RESPONDENT \n \nPUBLIC EMPLOYEE CLAIMS DIVISION, Carrier RESPONDENT \n \n \n \n OPINION FILED OCTOBER 21, 2025 \n \nHearing  before  ADMINISTRATIVE  LAW  JUDGE  ERIC  PAUL  WELLS  in  Fort  Smith, \nSebastian County, Arkansas. \n \nClaimant represented by MICHAEL L. ELLIG, Attorney at Law, Fort Smith, Arkansas. \n \nRespondents  represented  by CHARLES  H.  MCLEMORE,  Attorney  at  Law, Little  Rock, \nArkansas. \n \n STATEMENT OF THE CASE \n \n On July  31,  2025,  the  above  captioned  claim  came  on  for  a  hearing  at  Fort  Smith, \nArkansas.      A  pre-hearing  conference  was  conducted  on June  9,  2025,  and  a  Pre-hearing  Order \nwas  filed  on June  10,  2025.      A  copy  of  the  Pre-hearing  Order  has  been  marked  Commission's \nExhibit No. 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 this claim. \n 2. The  relationship  of  employee-employer-carrier  existed  between  the  parties on  August \n10, 2020. \n 3. The claimant sustained a compensable injury to his left shoulder, left elbow, and low \nback on or about August 10, 2020. \n\nOliver – H005620 \n \n-2- \n 4.  The  claimant  was  earning  sufficient  wages  to  entitle  him  to  compensation  at  the \nweekly rates of $499.00 for temporary total disability benefits and $374.00 for permanent partial \ndisability benefits. \n 5.  Respondents  have  accepted  8%  impairment  for  his  compensable  lumbar  spine  injury \nand 2% impairment for his compensable left shoulder injury. \n By agreement of the parties the issues to litigate are limited to the following: \n 1. Whether Claimant is entitled to wage loss disability. \n 2. Whether Claimant’s attorney is entitled to an attorney fee. \n The claimant's contentions are as follows: \n“The claimant contends  that he is entitled to additional permanent \npartial  disability  benefits  for  loss  of  wage  earning  capacity  and \nmay  be  entitled  to  additional  permanent  partial  disability  benefits \nfor increased permanent physical impairment.” \n \n The respondents’ contentions are as follows: \n“The    Respondents    contend    that    the    claimant    sustained    a \ncompensable  injury  on  August  10,  2020  for  which  he  has  been \nprovided  medical  and  indemnity  benefits  by  Respondent.  The \nclaimant reported injuries to his left shoulder and low back. \n \nThe  claimant  was  provided  medical  treatment  by  Respondent, \nincluding treatment for his lumbar injury with Dr. Frank Tomecek \nwho  performed  a  surgery  January  9,  2021  to  remove  hardware \nfrom  a  prior  non-work  related  surgery.  The  claimant  was  released \nat  MMI  by  Dr.  Tomecek  for  his  lumbar  on  July  7,  2021  with  8% \npermanent anatomical impairment. \n \nThe  claimant  was  seen  by  Dr.  Jeffrey  Johnson  for  his  left  elbow, \nwho  treated  the  claimant  conservatively  including  an  MRI  and \ninjection.  The  claimant  was  released  at  MMI  by  Dr.  Jeffrey \nJohnson  on  July  26,  2021  for  his  left  elbow  with  0%  permanent \nimpairment. \n \nThe   claimant   was   provided   treatment   for   his   left   shoulder \nincluding therapy and MRI, and was seen by Dr Bolyard who had \n\nOliver – H005620 \n \n-3- \nperformed surgery previously on the claimant’s left shoulder. Dr. \nBolyard   commented   that   there   were   no   known   postsurgical \nchanges  to  the  left  shoulder,  and  released  the  claimant  for  his  left \nshoulder November 20, 2020, stating no surgery was indicated. \n \nThe  Respondent  agreed  to  provided  the  surgery  recommended  by \nDr.  Andrew  Heinzelmann  on  the  claimant’s  left  shoulder, \nperformed  March  16,  2022.  The  claimant  was  released  by  Dr. \nHeinzelmann  at  MMI  to  full  activity  without  restriction  on  May \n17, 2022. The claimant was assigned a 2% impairment to the body \nas  a  whole  by  Dr.  Heinzelmann,  which  Respondent  accepted  and \nhas paid to the claimant, with attorney fee. \n \nThe  claimant  was  terminated  for  cause  by  his  employer  after  he \nhad  been  offered  accommodation  to  return  to  work.  The  claimant \nhad a bona fide and reasonably obtainable offer to be employed at \nwages equal to or greater than his average weekly wage at the time \nof  the  accident,  therefore,  he  is  not  entitled  to  permanent  partial \ndisability   benefits   in   excess   of   the   percentage   of   permanent \nphysical impairment pursuant to Ark. Code Ann. §11-9-522(b)(2). \nFurthermore,    the    claimant    had    been    provided    vocational \nrehabilitation   counseling   after   his   injury   and   back   surgery. \nSubsequent  to  his  left  shoulder  surgery,  the  claimant  has  again \nbeen offered vocational rehabilitation counseling by Respondent. \n \nThe  Respondent  contends  that  the  claimant,  now  age  51,  cannot \nestablish that he is entitled to permanent disability benefits related \nto  his  work  injury  in  excess  of  his  permanent  impairment  ratings \nalready assigned by his treating physicians or in the form of wage \nloss  disability.  The  claimant,  who  runs  his  family  farm  operation, \nwas  terminated  for  cause,  ad  also  had  been  provided  vocational \nrehabilitation counseling previously but did not have an interest in \npursuing  it,  he  has  instead  pursued  Social  Security  Disability \nbenefits   as   well   as   disability   benefits   through   the   Veterans \nAdministration. The Respondent further contends that claimant has \na  history  of  preexisting  conditions,  unrelated  to  a  work  injury,  for \nwhich  he  already  receives  disability  benefits  and  the  claimant \ncannot  establish  the  work  injury  for  the  major  cause  of  additional \npermanent disability benefits he demands. \n \nA hearing was set in this matter on November 9, 2023, but the file \nwas returned to the Commission’s general files on November 1, \n2023,  with  no  activity  until  after  Respondent  filed  its  Motion  to \nDismiss  for  Want  of  Prosecution,  when  the  claimant  demanded  a \nhearing. Respondent’s Motion to Dismiss is still pending. \n\nOliver – H005620 \n \n-4- \n \nThe  Respondent  reserves  the  right  to  raise  additional  contentions, \nor  to  modify  those  stated  herein,  pending  the  completion  of \ndiscovery.” \n \n The claimant in this matter is a 51-year-old male who sustained compensable injuries to \nhis  left  shoulder,  left  elbow,  and  lower  back  on  or  about  August  10,  2020.  The  parties  have \nstipulated that the claimant sustained whole body impairment ratings of 8% regarding his lumbar \nspine and 2% whole body impairment regarding his left shoulder. It is for these injuries that the \nclaimant has asked the Commission to determine whether he is entitled to wage loss disability. \n On  August  10,  2020,  the  claimant  was  performing  employment  services  on  a  piece  of \nprivate land when he slipped and fell due to moss-covered rock. The claimant received medical \ntreatment for his injuries by multiple doctors due to the variety of his injuries. The claimant’s \nwork-related injuries eventually resulted in his receiving an impairment rating of 8% to the body \nas a whole regarding his lumbar spine and 2% to the body as a whole regarding his left shoulder. \nThe  claimant  testified  that  he  did  not  receive  any  restrictions  related  to  his  left  shoulder,  but \nrestrictions were placed on his back. Following is a portion of the claimant’s direct examination \ntestimony: \nQ I just want to know if they gave you any restrictions. \n \nA Yes. \n \nQ Was that the only restriction? \n \nA Yes, sir. They gave me zero for my elbow. \n \nQ And did you – \n \n THE  COURT:  Mr.  Ellig,  just  for  a  point  of  clarification. \nCould  you  inquire  about  which  doctor  that  was?  What  body  part \nthat doctor was that gave the restriction? \n \n\nOliver – H005620 \n \n-5- \nA (Witness  continues.)  Dr.  Frank  Tomecek  was  the  back \ndoctor for my eight percent. \n \n THE COURT: Okay. \n \nQ (Mr.  Ellig  continues.)  Did  he  give  any  other  restrictions, \nlike bending, or stooping, or twisting, or anything like that? \n \nA Not after the six months. Before that, I did, yes. \n \nQ And at six months, he just said no lifting over 30 pounds on \na regular basis? \n \nA Yes, he said, yep, put me on a weight limit. He told me to \njust be careful, you now, don’t do stuff to hurt it. \n \nQ Don’t do something that hurts? \n \nA And that happens sometimes. \n \nQ How about your shoulder? \n \nA It still – I still have a lot of pain in my shoulder. \n \nQ Did he give you – did the doctor impose any limitations on \nyou  using  your  shoulder  when  he  treated  you  for  your  shoulder, \nDr. Heinzelmann? \n \nA No, he gave me just a clear – clear to go. \n \n The claimant was asked on direct examination about his ability to perform his job duties \nfor the respondent/employer after his release as follows: \nQ How  much  could  you  lift  after  you  were  released  by  Dr. \nTomecek? \n \nA Thirty pounds or less. \n \nQ Did you try to stick with those limitations? \n \nA Yes, at first it was hard. You know, I would unload a bag of \ndog  food,  but  that  felt  like  80  pounds  so  I  just  made  myself  stop \nbecause it put me in bad back pain when I would do that. \n \n\nOliver – H005620 \n \n-6- \nQ At  that  time,  when  you  were  released  by  all  your  doctors, \ndo you believe you were physically capable of performing your job \nfor the forestry service? \n \nA No, sir. I was even told by two different back surgeons that \nI should never get on a bulldozer. \n \n MR. MCLEMORE: Objection, that would be hearsay. \n \n THE COURT: Sustained. \n \n MR.  ELLIG:  Judge  I’m  just – just  try  to  answer  my \nquestion. \n \n THE COURT: I understand. \n \nQ (Mr. Ellig continues.) We don’t need to know necessarily \nwhat someone told you unless they put it in writing. I just need to \nknow  what  difficulties  would  you  have  had  in  doing  the  forestry \nservice job? \n \nA Well,  I could not be a dozer operator anymore.  If we were \nvery – I could walk – \n \nQ What   would   have   bothered   you   about   being   a   dozer \noperator? \n \nA Well,  it  beats  you  to  death.  I  mean,  the  rocky  terrain  and \nrunning over downed burnt trees and stuff. \n \nQ The vibrations? \n \nA On, the vibration. There’s no shocks on a dozer, I mean \nit’s, it’s very – \n \nQ What other activities? \n \nA Well,  walking  a  long  ways.  Trying  to  even  climb  a  ladder \nto fix something, if I needed to, on my house. \n \nQ I’m trying to just stick with what you couldn’t do at – \n \nA At forestry? \n \nQ -- the forestry service. \n\nOliver – H005620 \n \n-7- \n \nA Well – \n \nQ Couldn’t climb a ladder? \n \nA No. I mean we – \n \nQ Could not walk on uneven ground for distances? \n \nA Yes,  sir.  Could  not  get  on  a  lot  of  uneven  ground.  I  mean, \nit’s rough, like I say, and we have – a lot of time we are out there \nafter dark and you trip on stuff, fall on stuff, and we are raking fire \nlines with rakes and, you know, putting fires out with our flappers, \nand we got chainsaws, trying to cut stuff down, and that stuff right \nthere just doing that and bending trying to cut them logs and do all \nthat work. There’s no way I could do that. \n \nQ By the time you had been released by the doctors, were you \nstill employed by the forestry service? \n \nA No, sir. \n \n The  claimant  was  terminated  by  the  respondent  on  or  about  January  11,  2021.  The \nclaimant  testified  that  he  was  never  offered  a  job  by  the  respondent  within  his  restrictions  as \nfollows: \nQ Now,  after  you  were  released  by  your  doctors,  has  the \nforestry service ever offered you a job within your restrictions? \n \nA No, sir. \n \nQ Have   they   ever   obtained   for   you   a   job   within   your \nrestriction that would pay the same or greater wage than you were \nearning at the time you got hurt? \n \nA No, sir. \n \nOn cross examination, the claimant was asked about the respondent offering work after his work-\nrelated injury as follows: \nQ Did you ever go back to work for the  forestry commission \nafter that day of the accident? \n\nOliver – H005620 \n \n-8- \n \nA No, sir. They called me  in November of 2020 and told me \nto go get a drug test, and I said “What for?” They said, “Because.” \nI said, “Okay. I’m on workmen’s comp I don’t know how this \nworks.” So, I called the workmen’s comp woman and she said, \n“Yeah, you go do that.” And I said, “Okay.” So I went on over to \nChaffee,  did  a  blood  test.  Coming  back  they  called  and  said, \n“Hey,”  my  district  supervisor  from  Clarksville,  and  he  said,  “I \nneed  you  in  Clarksville  Monday  morning.”  And  I  said,  “Okay, \nwhat are we doing?” He said, “You’re coming back to work down \nhere.” And I said, “Chuck,” – it was November – my back surgery \nwas coming up in less than two months. I said, “What am I going \nto do?” He said, “You’re going to shred papers.” And I said, “Do \nwhat?” I said, “Chuck, I’m not driving to Clarksville. I’ve got a \n1988, 454 big-block that’s going to get five miles to the gallon.” I \nsaid, “I can’t do that.”  And he said, “Spence,  please, get these \nmonkeys off my back. Please come down here.” That’s his exact \nwords. \n \n So I go home and called my workmen’s comp counselor, \nand she said, “Well, you don’t have to do that.” She said – I said, \n“Ma’am, I can’t do that.” And she said, “You don’t have to. It ain’t \nno  big  deal.”  She  said,  “You  just  won’t  draw  your workmen’s \ncomp.” And I said, “I’m fine with that.” And never heard from no \none again until they called me to terminate me. \n \nQ So shredding papers was what they offered you? \n \nA Yes, sir. \n \nQ Would that have been inside an office? \n \nA Their office was connected to a shop thing. He said, “You \nare going to sit out in that shop and shred papers.” I said, you \nknow, I was just – I don’t understand it, I don’t know why, but that \nis what I was told. \n \nQ So that was November of 2020? \n \nA Yes, sir. \n \nQ So you don’t know about the shredding papers because you \nnever actually did that? \n \n\nOliver – H005620 \n \n-9- \nA No, no, legally I didn’t have to because of what workmen’s \ncomp told me. I think it was, honestly, made them want to fire me. \n \nQ Well, of course, no one can force you to do something, but \nyou were offered the job shredding papers, and you told them you \ndidn’t want to do that, correct? \n \nA Yes, I did. \n \n On  January  11,  2021,  the  claimant  was  sent  a  letter  of  termination  by  the  respondent, \nwhich is found at Respondents’ Exhibit 2, pages 13 and 14, which in part states: \nLet  this  serve  as  notification  that  your  employment  with  the \nArkansas   Department   of   Agriculture   (Department)   is   being \nterminated   effective   immediately,   due   to   violations   of   the \nEmployee Discipline Policy, specifically: \n \nInsubordination – An  employee  shall  promptly  obey  any  lawful \norder  of,   and  follow   all  reasonable  instructions  issued  by,   a \nsupervisor or superior. \n \nProfessionalism – While on the job, an employee shall demonstrate \nprofessionalism  as  follows:  Courteous,  Patient  and  Respectful \nAttitudes.  An  employee  shall  be  patient,  courteous,  and  respectful \nwhen  dealing  with  other  employees  and  the  public.  An  employee \nshall be tactful in the performance of his or her  duties, control his \nor  her  temper,  exercise  patience  and  discretion,  and  not  become \ninvolved   in   inappropriate   arguments   even   in   the   face   of \nprovocation. \n \nYour  supervisors  have  attempted  to  contact  you  be  telephone  on \nseveral  occasions  over  the  past  two  months  and  have  requested  a \nreturn call, but you failed to return any of the calls. A request from \nyour  supervisor  for  you  to  return  phone  calls  is  a  reasonable \ninstruction.   Therefore,   your   failure   to   return   the   calls   is \nInsubordination under the Employee Discipline Policy. \n \nWhen you finally did contact your supervisor on January 11, 2021, \nyou were discourteous and disrespectful. \n \n The  claimant  was  asked  on  cross  examination  about  his  termination  and  at  one  point \ndiscusses a back surgery that was upcoming. I note that that back surgery the claimant references \n\nOliver – H005620 \n \n-10- \nis unrelated to the claimant’s workers’ compensation claim. Following is the claimant’s cross \nexamination testimony about his letter of termination: \nQ And then, was Chuck Primeaux your supervisor? \n \nA He was our district supervisor, yes, sir. \n \nQ District  in  Clarksville  and  it  was  after  that  that  you  were \nterminated, correct? \n \nA Yes, two days before my back surgery. \n \nQ I’ve got a letter here from your termination. \n \n MR. MCLEMORE: May I approach? \n \n THE COURT: You may. \n \n MR. MCLEMORE: This is page 13 of Respondents’ – \n \n THE COURT: Page what? I’m sorry. \n \n MR. MCLEMORE: Page 13 of Respondents’ Exhibit 2. \n \n THE COURT: Thank you. \n \nQ (Mr. McLemore continues). Just take a look at that and tell \nme if you recognize it. \n \nA My letter didn’t have all this in it that I got, and it’s a lie. \n \nQ Well, I’m going to have to ask you, you’ve already given \nyour address on the record and this address is different. \n \n Can you read that? \n \nA Uh-huh, that’s my mom’s address. \n \nQ Did you live at that address? \n \nA I’ve lived on the farm, across the pasture from her for 25 \nyears. But, at one time my mail did go down there because I didn’t \nhave a mailbox on Special Bond Road. I just used it, and there’s \nabout  12  mail  boxes  there  so  I  moved mine out  of  there  because \n\nOliver – H005620 \n \n-11- \nthere  was  too  many  kids,  teenagers,  and  hands  down  there,  and  I \nthought, man, I’m moving my mail box. \n \nQ Okay, so Whippoorwill Lane is your mother’s – \n \nA Yes. \n \nQ -- house on the family farm property? \n \nA It’s on the east side of where there’s a dead end dirt road \nwhere that is, and I’m on the west side of the road. \n \nQ Okay. \n \nA And the not answering the telephone you see there, when I \nasked Chuck, “How could you fire me,” he said, “Because you \ndidn’t answer your telephone.” I said, “Chuck, no one has called \nme, no one.” From the time I got hurt to the time of my back \nsurgery, I talked to my counselor ranger once when she called and \nsaid, “You need to go get a drug test.” She didn’t say, “Hi, hello, \nhow is your back. Go get a drug test.” \n \n Then  I  talked  to  Chuck when he  called  about  shredding \npapers, and I called him back and I told him, I said, “workmen’s \ncomp said I didn’t have to do this.” And I said, “It’s legal.” And he \nis like, “Okay.” And then, I talked to Chuck the day he called and \ntold me Little Rock wanted to terminate me and I said, “What \nfor?” And he said, “Not answering the telephone.” And I kind of \nstarted  laughing,  I  thought  he  was  just  being  silly.  And  he  goes, \n“No, I’m serious, Spence.” And I said, “Chuck, that’s a bunch of \nBS  and  you  know  it.”  So  I  like  how  he  put  it  there,  being \ndisrespectful  to  my  supervisor.  At  that  phone  call,  I  was  fired  at \n8:30  something  in  the  day,  and  I  talked  to  him  about  11:00,  so  I \nwasn’t even an employee then, so. \n \nQ Well – \n \nA It’s on the letter that I got. \n \nQ Okay. \n \nA Or what he told me “You’re terminated” at 8:30, 8:34. And \nI believe it’s on the letter that I got. But my letter is different than \nyours. \n \n\nOliver – H005620 \n \n-12- \n The  claimant  was  also  provided  the  opportunity  for  vocational  rehabilitation  by  the \nrespondent, which he initially participated in. Following is a portion of the claimant’s initial \nvocational rehabilitation evaluation document with Heather Taylor, MRC, CRC: \nReport Summary \nAt the request of Public Employee Claims Division, I met with Mr. \nJerry  Oliver  to  complete  a  vocational  rehabilitation  assessment, \npreliminary to exploring his return-to-work options. We met at the \nlibrary in Van Buren on 08/11/21. \n \nPrior  to  beginning  the  meeting  with  Mr.  Oliver,  I  explained  my \nrole   as   a   vocational   rehabilitation   counselor   and   provided   a \nSystemedic    disclosure    informational    pamphlet,    which    he \nacknowledged receipt and understanding. \n \nMr. Oliver has completed medical treatment and has been released \nto return to the workforce by his physician. He will not be able to \nreturn  to  his  job  of  injury,  but  in  my  opinion  should  be  able  to \nreturn to the workforce in the future to a different job that is within \nhis work restrictions. \n \n*** \nStatements Regarding Returning to Work and/or Retraining \nMr.    Oliver    did    express    in    interest    in    seeking    additional \nemployment.  He  has  proven  to  manage  multiple  jobs  at  one  time \nover the course of his career. \n \nHe did express a couple of different interests as it relates to finding \na new/different job in the future.  He  expressed an interest in parts \nsales and service as he has done this in the past and this would be \nconsistent with his functional work restrictions. He also expressed \nan  interest  in  starting  another  business  (self-employment)  as  a \nnuisance animal removal technician or weed control technician (as \nhe   has   a   current   required   pesticide   license   for   his   farming \noperation).  These  options  would  also  be  consistent  with  his  work \nrestrictions. \n \nBut  he  is  also  open  to  exploring  any  other  options  in  the  labor \nmarket that might be in interest to him. \n \nMr. Oliver is in a unique position in that he does not “need” to \nobtain  another  job  from  an  income  standpoint  as  he  indicated  that \nwith his rental properties, cattle farm operation, and most recently \n\nOliver – H005620 \n \n-13- \nhis VA disability award, he has sufficient income to “live.” He also \nis   in   a   unique   position   to   not   required   a   job   that   provides \ninsurance/benefits and he said all of his medical is provided by the \nVA. In my opinion, this will allow Mr. Oliver to be more selective \nwith the next job that he takes or even allow him the ability to start \nanother small business. \n \nAnalysis, Goals, and Recommendations \nConsidering  all  of  the  relevant  medical  and  vocational  factors \nreviewed  to  date,  it  is  my  opinion  Mr.  Oliver  is  a  good  candidate \nfor   returning   to   the   workforce.   He   has   skills   from   his   past \nexperience  that  he  will  be  able  to  utilize  in  returning  to  a  new  or \nsimilar  position that  is more  consistent  with  his  current  functional \nabilities. \n \nHe    is    agreeable    to    working    with    me    in    the    vocational \nrehabilitation/job    search    process.    Going    forward,    I    would \nrecommend    completing    follow-up    meetings    with    him    to \nupdate/finalize   his   resume,   provide   him   with   interview   skills \ntraining and preparation, complete mock interviews with him prior \nto  any  interview  that  he  receives,  provide  online  job  application \ninstructions,  complete  weekly  job  market  research  to  identify  job \nopenings he can apply for, update his online job search profile with \nthe   State   of   Arkansas,   and   update   and   upload   his   resume \ninformation to additional job search sites. \n \nHe is agreeable to this course of action. Therefore, we will proceed \naccordingly. \n \n The  claimant,  after  his  initial  vocational  rehabilitation  consultation,  stopped  responding \nto  the  rehabilitation  specialist.  Following  are  the  bodies  of  three  letters  that  were  sent  to  the \nclaimant about vocational rehabilitation after his initial consultation: \nAs  you  may  recall,  we  are  scheduled  for  a  follow-up  vocational \nrehabilitation  meeting  on  09/02/21,  but  you had  to  cancel  due  to \nyour  COVID  exposure.  I  advised  I  was  leaving  on  vacation  in  a \nfew  days  and  would  contact  you  upon  my  return  to  reschedule.  I \nreturned to  my  office  from  vacation  on  09/20/21,  and  I  have  tried \nto  reach  you  several  times  by  telephone/text  but  have  not  heard \nfrom you. \n \nTherefore,  I  am writing to let you know that if  I  do not hear from \nyou  in  four  weeks  (by  11/19/21)  then  I  will  assume  you  are  no \n\nOliver – H005620 \n \n-14- \nlonger    interested    in    vocational    rehabilitation/return-to-work \nservices, and I will close out your vocational rehabilitation file. \n \n*** \nThis  letter  is  regarding  vocational  rehabilitation  services  for  your \nopen  workers’  compensation  case.  Your  adjuster,  Marie \nWoodman,  with  Public  Employee  Claims  Division,  referred  your \ncase  for  vocational  services.  I  am  the  vocational  rehabilitation \nconsultant  with  Systemedic.  I  would  like  to  schedule  a  meeting \nwith   you   for   your   initial   vocational   interview. My   job   as   a \nvocational  rehabilitation  consultant  is  to  provide  an  appropriate \nlevel of assistance, based on assessed needs, necessary to achieve a \nmeaningful and sustainable employment outcome. \n \nI  have  attempted  contacts  via  telephone  on  08/24/23,  08/25.23, \n08/31/23, 09/05/23, and 10/04/23. I also sent letters in the mail on \n08/25/23  and  09/05/23,  but  have  been  unsuccessful  in  reaching \nyou.  I  am  attempting  to  provide  vocational  rehabilitation  services \nand    in    order    to    initiate    vocational    rehabilitation    services, \ncommunication  from  you  will  be  required.  Please  contact  me  to \nschedule  an  appointment  as  requested  by  your  workers’ \ncompensation insurance company. \n \n*** \nThank you for contacting me on October 18, 2023, regarding your \nvocational  rehabilitation  referral.  I  was  able  to  inform  Public \nEmployee Claims Division (PECD) of the discussion between you \nand I regarding your upcoming surgery, and if continuing forward \nwith    vocational    rehabilitation    services    is    warranted.    After \ndiscussing  this  with  PECD,  it  is  advised  to  move  forward  with \noffering vocational rehabilitation services.  \n \nI  would  like  to  schedule  to  meet  with  you  soon  for  your  initial \nvocational  rehabilitation  interview.  I  attempted  to  contact  you  by \ntelephone  on  10/20/23  and  10/23/23  with  no  response.  Please \ncontact  me  to  schedule  an  appointment  as  requested  by  your \nworkers’ compensation insurance company. \n \nI  again  note  that  the  surgery  referenced  in  the  October  23,  2023,  letter  to  the  claimant  is  not \nassociated with his workers’ compensation claim. The respondent in this matter employed the \nservices  of  a  private  investigator  to  follow  and  video  the  claimant  during  his  daily  activities. \n\nOliver – H005620 \n \n-15- \nWhile the testimony of the investigator and video certainly show the claimant being active, I do \nnot believe it showed the claimant performing activities above his lifting restriction of 30 lbs.  \nWage loss is the degree to which the compensable injury has affected the claimant’s \nearning  capacity.  The  extent  of  disability  is  a  question  of  fact  for  the  Commission. Cross  v. \nCrawford   County   Memorial   Hospital,   54   Ark.   App.   130,   923   S.W.2d   886   (1996).   The \nCommission  is  charged  with  assessing  wage  loss  on  a  case  by  case  basis.  Factors  to  be \nconsidered  in  assessing  wage  loss  include  the  claimant’s  age,  education,  work  experience, \nmedical evidence and other matters which may reasonably be expected to affect the worker’s \nfuture earning power such as motivation, post-injury income, bona fide job offers, credibility or \nvoluntary  termination.   Glass  v.  Edens,  233  Ark.  786,  346  S.W.2d  685  (1961); City  of \nFayetteville v. Guess, 10 Ark. App. 313, 663 S.W.2d 946 (1984); Curry v. Franklin Electric, 32 \nArk. App. 168, 798 S.W.2d 130 (1990);  Oller v. Champion Parts Rebuilders, 5 Ark. App. 307, \n635  S.W.2d  276  (1982);  and Hope  School  District    v.  Charles  Wilson,  2011  Ark.  App.  219,  \nS.W.3d  (2011).  The  award  of  wage  loss  is  not  a  mathematical  formula,  but  a  judicial \ndetermination based on the Commission’s knowledge of industrial demands, limitations, and \nrequirements, Henson v. General Electric, 99 Ark. App. 129, 257 S.W.3d 908 (2008). \n Pursuant  to  A.C.A.  §11-9-522(b)(1),  when  considering  claims  for  permanent  partial  disability \nbenefits  in  excess  of  the  percentage  of  permanent  physical  impairment,  the  Commission  may  take  into \naccount various factors including the percentage of impairment as well as the employee’s age, education, \nwork experience, and all other matters reasonably expected to affect his future earning capacity. \n After  considering  the  evidence  and  testimony  submitted  by  the  parties  in  this  matter,  alongside \nthe Arkansas Workers’ Compensation Act and the factors set forth in case law, I find the claimant to be \nentitled to wage loss in an amount that would be equal to a whole-body impairment of 5%. The claimant’s \n\nOliver – H005620 \n \n-16- \nmotivation to work seems exceedingly low, with the claimant even having made clear to Heather Taylor, \nthe vocational rehabilitation specialist, that he really doesn’t need to work. The claimant was offered \nemployment  within  his  restrictions  by  the  respondent  but  refused  that  employment  and  was  eventually \nterminated.  The  claimant  certainly  does  have  a  30  lb.  lifting  restriction  regarding  his  back  and  an \nanatomical impairment to his lower back and left shoulder, but given the totality of the circumstances, I \nfind that a wage loss in an amount that would be equal to a 5% whole-body impairment is appropriate in \nthis matter. \n From a review of the record as a whole, to include medical reports, documents, and other \nmatters properly before the Commission, and having had an opportunity to hear the testimony of \nthe  witness  and  to  observe his demeanor,  the  following  findings  of  fact  and  conclusions  of  law \nare made in accordance with A.C.A. §11-9-704: \n FINDINGS OF FACT & CONCLUSIONS OF LAW \n 1.  The  stipulations  agreed  to  by  the  parties  at  the  pre-hearing  conference  conducted  on \nJune 9, 2025,  and  contained in a Pre-hearing Order filed June 10, 2025,  are hereby accepted as \nfact. \n 2. The claimant has proven by a preponderance of the evidence that he is entitled to wage \nloss disability in an amount that would be equal to a 5% whole-body impairment. \n 3. The  claimant  has  proven  by  a  preponderance  of  the  evidence  that  his  attorney  is \nentitled to an attorney fee in this matter. \n ORDER \nThe  respondent  shall  pay  the  claimant  wage  loss  disability  in  an  amount  that  would  be \nequal to a 5% whole-body impairment rating. \n Respondents shall pay to the claimant's attorney the maximum statutory attorney's fee on \n\nOliver – H005620 \n \n-17- \nthe benefits awarded herein, with one half of said attorney's fee to be paid by the respondents in \naddition  to  such  benefits  and  one  half  of  said  attorney's  fee  to  be  withheld  by  the  respondents \nfrom such benefits pursuant to Ark. Code Ann. §11-9-715. \n All  benefits  herein  awarded  which  have  heretofore  accrued  are  payable  in  a  lump  sum \nwithout discount. \n This award shall bear the maximum legal rate of interest until paid. \nIf  they  have  not  already  done  so,  the  respondents  are  directed  to  pay  the  court  reporter, \nVeronica Lane, fees and expenses within thirty (30) days of receipt of the invoice. \n IT IS SO ORDERED. \n \n                                ____________________________                                               \n       HONORABLE ERIC PAUL WELLS \n       ADMINISTRATIVE LAW JUDGE","preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H005620 JERRY OLIVER, Employee CLAIMANT ARKANSAS FORESTRY COMMISSION, Employer RESPONDENT PUBLIC EMPLOYEE CLAIMS DIVISION, Carrier RESPONDENT OPINION FILED OCTOBER 21, 2025 Hearing before ADMINISTRATIVE LAW JUDGE ERIC PAUL WELLS in Fort Smith, Sebastian Count...","fetched_at":"2026-05-19T22:35:51.095Z","links":{"html":"/opinions/alj-H005620-2025-10-21","pdf":"https://www.labor.arkansas.gov/wp-content/uploads/OLIVER_JERRY_H005620_20251021.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}