{"id":"alj-H008571-2023-03-13","awcc_number":"H008571","decision_date":"2023-03-13","opinion_type":"alj","claimant_name":"Mary Mckamie","employer_name":"Arkansas Department Of Human Services","title":"MCKAMIE VS. ARKANSAS DEPARTMENT OF HUMAN SERVICES AWCC# H008571 MARCH 13, 2023","outcome":"granted","outcome_keywords":["granted:5"],"injury_keywords":["hip","back","herniated","lumbar","neck","fracture","knee","wrist"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/MCKAMIE_MARY_H008571_20230313.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"MCKAMIE_MARY_H008571_20230313.pdf","text_length":55449,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \n                                                         CLAIM NO.: H008571 \nMARY MCKAMIE, EMPLOYEE                                                                          CLAIMANT \n \nARKANSAS DEPARTMENT OF HUMAN SERVICES, \nEMPLOYER                                                                                                        RESPONDENT \n \nPUBLIC EMPLOYEE CLAIMS DIVISION,  \nCARRIER/THIRD PARTY ADMINSTRATOR (TPA)                                 RESPONDENT \n \n \n         OPINION FILED MARCH 13, 2023     \n        \nHearing held before ADMINISTRATIVE LAW J UDGE CHANDRA L. BLACK in Texarkana, \nMiller County, Arkansas. \n \nClaimant represented by Mr. Gregory R. Giles, Attorney at Law, Texarkana, Arkansas. \n \nRespondents represented by Mr. Robert H. Montgomery, Attorney at Law, Little Rock, Arkansas. \n \n \nStatement of the Case \nOn December 13, 2022,  the above-captioned claim came on for  a hearing in Texarkana, \nArkansas.  A pre-hearing telephone conference was conducted on September 14, 2022, from which \na Pre-hearing Order was filed on that same day.  A copy of said order and the parties’ responsive \nfilings have been marked as Commission’s Exhibit No. 1 and made a part of the record without \nobjection. \nStipulations \nDuring the pre-hearing telephone conference, and/or during the hearing the parties agreed \nto the following stipulations: \n1. The Arkansas Workers’ Compensation Commission has jurisdiction of the within \nclaim. \n \n\nMcKamie- H008571 \n \n2 \n \n2. That  the  employee-employer-carrier  relationship  existed  at  all  relevant  times \nincluding on or about October 27, 2020, when the Claimant sustained compensable \ninjuries to her lower left extremity, lower left hip, and lower back. \n3. That  the  Claimant's  average  weekly  wage  (AWW)  on  the  date  of  her  accidental \ninjury was $548.07, with corresponding compensation rates of $365.00 per week \nfor  temporary  total  disability  (TTD)  compensation,  and  $274.00  a  week  for \npermanent partial disability (PPD) benefits. \n4. That  Respondents  accepted  these  injuries as  being  compensable  and  have  paid \nappropriate medical benefits owed on this claim to date. \n5. The Claimant was found to be at maximum medical improvement (MMI) for her \nhip  injury  on  May  14,  2021,  and  at  MMI  for  her  back  injury  on  December  16, \n2021.  Respondents paid the Claimant TTD compensation until January 23, 2022.  \nTherefore, Respondents are owed an overpayment of  $625.71.    \n6. The  Claimant  was  assigned  a  10%  whole  body  impairment  rating  for  her  back \ninjury  by  Dr.  Calhoun.    The  Respondents  have  paid  the  Claimant  PPD  benefits  \nowed  for  this  rating.    The  Claimant  was  also  assigned  an  8%  rating  for  her  hip \ninjury for a combined rating of 17%.  The Respondents have accepted this rating.  \nThe Claimant is being paid by APERS $217.17 in monthly benefits.  In the event, \nthe Claimant is awarded benefits herein, Respondents are entitled to an offset for \npayment of these benefits.  \n7. That Respondents have controverted this claim for additional benefits.  \n\nMcKamie- H008571 \n \n3 \n \n8. All  issues  not  litigated  herein  are  reserved  under  the  Arkansas  Workers’ \nCompensation Act. \nIssues \nBy agreement of the parties, the issues to be litigated at the hearing included the following: \n1. Whether the Claimant is entitled to TTD from May 1, 2021 until October 17, 2021.  \n2. Whether the Claimant is entitled to wage loss disability for the combined rating of \n17%.  (Of note, the Claimant’s attorney specifically reserved permanent and total \ndisability benefits).  \n3. Whether the Claimant’s attorney is entitled to a controverted attorney’s fee. \nContentions \n The respective contentions of the parties are as follows: \nClaimant:  \na. Claimant  contends  that  she  took  retirement  effective  May  1,  2021.    Claimant \ncontends  that  she  was  not  able  to  continue  to  perform  her  work  duties  at  that  time.    Claimant \ncontinued to have chronic hip and back pain.  It was not discovered that she had a compensable \nherniated disc that was the source of these continuing symptoms until the MRI was performed on \nAugust 25, 2021.  Claimant contends that there is an issue of whether she is entitled to temporary \ntotal  disability  benefits  from  May  1,  2021  until  October  17,  2021  when  TTD  was  reinstated.  \nClaimant  contends  that  given  the  severity  of  the  herniated  disc  subsequently  discovered  and \nidentified  which  required  surgery  that  it  is  clear  she  had  good  faith  basis  for  being  unable  to \nperform her job duties and it would be appropriate for her to have received TTD during that time \nframe. \n b. Claimant contends that she is entitled to wage loss disability benefits in excess of \n\nMcKamie- H008571 \n \n4 \n \nthe  impairment  ratings.  Claimant  contends  that  she  has  not  been  able  to  return  to  work  and \ncontends that she is entitled to substantial wage loss benefits.  Claimant would contend she has \nlost approximately ten additional years of her working life and given the circumstances contends \nthat she is now totally and permanently disabled or in the alternative entitled to wage loss disability \nbenefits exceeding 85%. \n c. Claimant contends that the medical treatment that she had that her health insurance \nHealth Advantage paid for was reasonable and necessary such that Respondents should be ordered \nto satisfy the subrogation reimbursement request of Health Advantage. \n d. Claimant contends that Respondents should be ordered to pay attorney’s fees as \nprovided by law. \nRespondents: \n Respondents contend that the Claimant has received all reasonable and necessary medical \ntreatment for her compensable injury(ies).  The Claimant is currently receiving permanent partial \ndisability benefits in payment of the 10% impairment rating assigned by Dr. Calhoun for her back \ninjury. \nThe Claimant reached MMI for her lumbar injury on January 5, 2022,  and yet was paid \nTTD benefits through January 23, 2022.  The Respondents would contend that the Claimant was \noverpaid TTD benefits in the amount of $573.56 and that they are entitled to a credit in that amount \nagainst any PPD benefits owed to the Claimant.  \nThe  Claimant  elected  to  retire  from  the  Arkansas  Department  of  Human  Services.    The \nClaimant  is  61  years  old  and  now  contends  she  is  entitled  to  wage-loss  disability  benefits. \nRespondents contend that had she not retired the Claimant could and would still be working today, \n\nMcKamie- H008571 \n \n5 \n \nhad  she  chosen  to  do  so.    Based  on  these  facts  the  Claimant  is  not  entitled  to  any  additional \nindemnity  benefits  beyond  those  owed  for  the  impairment  ratings  assigned.    Since  her  recent \nretirement the Claimant has not sought employment nor has she requested any type of vocational \nrehabilitation assistance  in order to assist her in finding another job.   Respondents will contend \nthat  should  the  Claimant  begin  receiving  disability  retirement  benefits  as  a  result  of  her \nemployment with Respondents they would be entitled to a credit pursuant to A.C.A. §11-9-411 for \ndisability retirement benefits received by the Claimant. \nThe Respondents contend that the Claimant is receiving and has received all appropriate \nindemnity benefits to which she is entitled.   \n                    FINDINGS OF FACT AND CONCLUSIONS OF LAW \nBased on my review of the record as a whole, to include the aforementioned documentary \nevidence, other matters properly before the Commission, and after having had an opportunity to \nhear the testimony of the witness and observe her demeanor, I hereby make the following findings \nof fact and conclusions of law in accordance with Ark. Code Ann. §11-9-704 (Repl. 2012): \n1.     The Arkansas Workers’ Compensation Commission has jurisdiction over this claim. \n \n2.      I hereby accept the above-mentioned proposed stipulations as fact. \n \n3.      The Claimant proved her entitlement to temporary disability compensation from  \n       \n      May 1, 2021 until  October 17, 2021.         \n           \n     4.          The Claimant proved by a preponderance of the evidence that she sustained wage- \n \n            loss disability in the amount of 27 % over and above her 10% impairment rating  \n             \n            for her low back injury of October 27, 2020.  The Claimant’s hip injury in the form  \n  \n            of a femoral neck fracture is a scheduled injury based on my review of the A.M.A.  \n \n\nMcKamie- H008571 \n \n6 \n \nGuides to Permanent Impairment, 4\nth\n Edition.  Therefore, this impairment rating   \nfor  this  injury  has  not  been  taken  into  consideration  for  the  assessment  of  the  \nClaimant’s wage-loss disability.       \n \n5.      The Claimant’s is entitled to a controverted attorney’s fee on the indemnity benefits  \n \nawarded herein.  \n \n6.      All issues not litigated herein are reserved under the Arkansas Workers’ \n \n     Compensation Act.      \n \nSummary of Evidence \nDuring the hearing, the only witness to testify was Ms. Mary McKamie/the Claimant.  \n            The record consists of the December 13, 2022 hearing transcript and the following exhibits: \nSpecifically, Commission’s Exhibit No. 1 includes the Commission’s Prehearing Order filed on \nSeptember 14, 2022 and the parties’ responsive filings; Claimant’s Exhibit No. 1 is an Abstract of \nTables  of  Contents,  which  is  made  up  of  nine  (9)  numbered  pages; Claimant’s  Exhibit  No.  2 \nincludes  a  Table  of  Contents/Medical  Reports  and  other  related  documents  consisting  of  one \nhundred  and  seventy-one    (171)    pages;  and  Respondents’  Medical  Exhibit  includes  six  (6) \nnumbered  pages  and  it  has  been marked as Respondents’ Exhibit 1.    Also,  the  Respondents \nintroduced into evidence the Claimant’s Oral Deposition of September 8, 2022.  It has been marked \nas Respondents’ Exhibit No. 2 and is retained in the Commission’s file.  Moreover, the e-mails \nregarding wage-loss disability for the Claimant’s hip impairment rating exchanged with the parties \nafter the hearing have been blue-backed and made a part of the record.  They have been marked \nCommission’s Exhibit No. 2.     \n \n\nMcKamie- H008571 \n \n7 \n \n                                                  Testimony \n  \n The Claimant, age 61, is a high school graduate and has earned some college credits.  She \nhas been married for almost three decades.  Her husband is currently retired.  Prior to her October \n27, 2020 accidental work injury, the Claimant had worked for the Arkansas Department of Human \nServices since November 7, 2005.  At the time of the Claimant’s accidental injury, she worked as \na local office administrative assistant, in the Lewisville office.   Her employment duties entailed \nanswering the window when clients brought in information,  and she made copies of documents \nfor them on an as needed basis.  She also assisted them with filling out applications and/or using \nthe kiosk.  Her division also collected canned goods and things of that nature for donations made \nto the Division of Children and Family Services.  The Claimant testified that some of the donations   \ninvolved lifting.  She was also responsible for ordering office supplies.  She testified that once the \nsupplies were delivered, she had to check them in, and put them away.   According to the Claimant, \nthe supplies included heavy cases of  paper. \n She confirmed that at the time of her accidental injury of October 27, 2020, her hourly rate \nof pay was $13.70.  However, the Claimant testified that overtime was a rare occurrence.  Next, \nthe  Claimant  explained  the  facts  and  circumstances  surrounding  her  October  27  injury.    The \nClaimant  essentially  testified  that  as  a  safety  measure  to  prevent  the  spread  of  COVID-19,  \nmanagement had installed shower curtains around their desks.  She agreed that she slipped on her \ncoworker’s shower curtain or the carpet as she got up to give her coworker a band-aid because she \nhad a cut on her finger.  Following her fall, the Claimant had an immediate onset of symptoms, \nwhich were all on her left side.  She testified that she was unable to move and thought at that time \nshe had jammed her leg.  Subsequently, the Claimant was transported to Wadley Regional Medical \n\nMcKamie- H008571 \n \n8 \n \nCenter.  There, the Claimant was diagnosed with a broken left hip for which she had to undergo \nsurgery.   She confirmed that Dr. Gregory Smolarz performed her hip surgery.   \n After  her  discharge  from  the  hospital,  the  Claimant  continued  to  follow  up  with  Dr. \nSmolarz.  She verified that a nurse case manager, Nicky Hobby, attended her appointments with \nher.    The  Claimant  agreed  that the nurse case manager’s note is correct wherein she stated  the \nClaimant  was walking with an antalgic gait and requiring the assistance of a cane.  She confirmed \nthat she had difficulty transitioning from a seated position, and she continues to deal with pain in \nher left hip area. \n The Claimant confirmed she was released from care by Dr. Smolarz on January 7, 2021 \nbut she did not return to work for DHS until January 11, 2021.  She testified  that she tried working \nbut had difficulty with walking, standing, lifting, and sitting.  These activities caused the Claimant \nto have constant pain in her hip, down her leg, and into her knee and her lower back.  Therefore, \nthe  Claimant  submitted  her  resignation,  effective  April  30,  2021  from  her  position  at  DHS.  \nAccording  to  the  Claimant,  she  decided  to  retire  because  she  was “just  working,  hurting  and \ncrying.”  The Claimant testified that once she got home, she cried even harder, and was unable to \ndo any cooking or cleaning.  Instead, the Claimant testified that she had to get on a heating pad to \nease her pain.”  The Claimant underwent an MRI of the lumbar spine and therapy was ordered by \nDr. Smolarz during this time frame.   \nShe confirmed that August 25, 2021 an MRI of her back was performed which revealed a \nherniated disc at L4-5.  As a result, the Claimant came under the care of Dr. Calhoun for her back \ncondition.  Dr. Calhoun performed surgery on the Claimant’s low back in the form of a discectomy \non October 18, 2021.  She confirmed that the respondent-carrier began paying her temporary total \ndisability  benefits  again  following  her  back  surgery.    The  Claimant  confirmed  that  she  started \n\nMcKamie- H008571 \n \n9 \n \ndrawing benefits from the Arkansas Public Employees Retirement System (APERS)  during this \nperiod of time.  She also applied for Social Security Disability benefits for which she is awaiting \na court date.  The Claimant confirmed that she currently draws monthly retirement benefits in the \namount of $210.17.     \n The Claimant confirmed that at the beginning of her effective date of her retirement (May \n1, 2021), she did not receive any temporary total disability benefits.  She agreed that she is asking \nfor  consideration  of  those  benefits.    The  Claimant  also  confirmed  that  she  was  not  capable  of \nworking at the time of her retirement.  She agreed that she is asserting that she was unable to work \nfrom May 1, 2021 until October 2021.   \n Regarding  the  surgery,  the  Claimant  testified  that  it  took  away  some  of    her  pain in  the \nback of her leg, but she still has pain going the side into her lower back.  The Claimant confirmed \nthat  she  continues  with  the  symptoms  reflected in  Dr.  Calhoun’s  report  of  January  2023. \nSpecifically, said symptoms include pain in her left buttock, left groin and left thigh to mid-thigh \nlevel, which the Claimant described as a “squeezing sensation.”  She also stated that she is unable \nto stand for more than five minutes before “her leg starts to feel like it is going to give-out.”   \n The Claimant confirmed that she brought to court with her a cane and a rolling walker.  She \nexplained that she must rely on the cane for walking short distances but if she has to go any distance \nsuch as the courtroom hallway, she uses the walker.  According to the Claimant, her walker has \nwheels and a seat, therefore if she has to stop and sit for a second, she can do so, and this makes it \neasier for her to get around.  The Claimant agreed that Dr. Calhoun referred her to Dr. Roman for \npain management.  She confirmed that she continues to see Dr. Roman.  The Claimant explained \nthat although Dr. Roman performed a lumbar epidural injection, this eased some of her pain, but \nshe still has ongoing pain related to her back.  According to the Claimant, she has had a diagnosis \n\nMcKamie- H008571 \n \n10 \n \nof  rheumatoid  arthritis  for  twenty-seven  years.    Her  rheumatologist  is  Dr.  Jonathan  Thomas,  in \nTexarkana.    She  takes  a  medication  regimen  for  this  condition.    Currently,  the  Claimant  takes \nLeflunomide,  Methotrexate,  Tramadol  and  Leucovorin.  The  Claimant  testified  that  she  was \ninstructed by Dr. Roman that the above medications were sufficient to provide relief for her hip \nand back pain.  She testified that she told Dr. Roman she did not want to take any more pain pills.  \nThe Claimant denied any other treatment or procedures by Dr. Roman other than the one epidural \ninjection.   Per the Claimant, she is scheduled for a follow-up visit with Dr. Roman in March 2023.   \n The Claimant confirmed that her cane became entangled on her chair at her kitchen table, \nand  she  fell  at  home  and  broke  her  pelvis.    She  confirmed  that  there  was  some  mention  of  the \npossibility  of  a  screw “backed-out”  but  it  ended  up  resolving  itself  somewhat.  The  Claimant \nconfirmed that the screw is still “backed-out” but no additional treatment has been recommended \nto resolve it.  She agreed that she recovered from the broken pelvis with no lasting problems, and \nthat she was released from care associated with this fall on April 21, 2022.   \n According to the Claimant, she continues with problems related to her left hip and back.  \nSpecifically, she testified: \nQ So can you describe for us the pain that you have in your left hip and back \nnow? \n \nA There  is  a  pain  in  that  left  buttock  area.    It  goes  into  that  hip  and  it  goes \ndown the leg right to my knee.  It doesn’t go quite to the knee, probably four inches \nfrom the knee, and it goes in the groin area, and it’s in that lower back.  I have to  -  \nif I’m sitting in a chair, as you can see, I have a pillow behind my back or something \nkeep me sitting up because it hurts. \n \nQ Did  the  one  epidural  give  you  any  temporary  relief  from  any  of  those \nsymptoms or issues? \n \nA Not  really.    It  helped  some  for  maybe  about  week,  but  never  relieved  the \npain. \n \n      \n\nMcKamie- H008571 \n \n11 \n \n As  of  the  date  of  the  hearing,  the  Claimant  continued  to  receive  payment  for  the  17% \nimpairment  rating  to  her  body  as  whole  from  the  Respondents.    She  was  asked  to  do  a  self-\nassessment of her limitations at this point in terms of her ability to lift and carry  objects around \nher household without causing herself more than mild pain or discomfort.  Her reply was “Less \nthan twenty pounds.  I mean, I can’t lift my granddaughter and she’s two.”  The Claimant testified \nthat her granddaughter weighs approximately thirty pounds.  She testified she is able to sit for only \nthirty minutes at a time in a chair without repositioning.  However, the Claimant can stand at her \nkitchen  sink  for  no  more  than  five  or  ten  minutes.    She  uses  a  barstool  to  wash  dishes.    The \nClaimant testified that she uses a barstool to do laundry, and she does not lift any of her laundry \nbaskets.  When the Claimant  goes to the grocery store, she uses a handicapped shopping cart, or \nshe leans over the cart to take the weight off of her legs and that gives her some relief.  However, \nthe Claimant testified that it is almost impossible for her stand in a line for check out.  Around the \nhouse, the Claimant is able to do a few chores, but she has to grab hold of furniture as she goes \nfrom one area to other parts of her house.  The Claimant uses her walker to go to the mailbox and \nto walk her yard.   \nShe confirmed that during the three-month period that she returned to work, prior to them \ndiscovering she had a herniated disc in her back, she relied on her cane at work.   \nRegarding an average day for the Claimant, she testified: \nA Well, I get up – if I sleep in bed, I get out of the bed. I get up and I’ll go in there \nand turn the coffee on the and then my husband and I will fix breakfast together because \nhe can stand at the stove and do more than I can, and I’ll make the toast and things like that \nover at the kitchen.  If I’m cooking, I have to have the barstool over at the stove. \n\nMcKamie- H008571 \n \n12 \n \nThe Claimant can dust by sitting on her sofas and leaning over to do that.   Her husband \ndoes  the  sweeping,  mopping,  and  vacuuming.    She  is  able  to  drive  by  positioning  her  legs  and \nmoving around in the seat to take the pressure off her hip and back.  The Claimant testified that \nquite often she sleeps in her recliner because it provides heat and vibration, which helps to ease \nher pain.  Per the Claimant, she sleeps in the recliner four days out of the week.  She is not able to \ngarden anymore because she is unable to operate the tiller.   The  Claimant is unable to remove the \nleaves and other debris to tend to her flowerbeds because she has to have a chair and help from \nothers.  According to the Claimant, she no longer can decorate for the different seasons.  She was \nonce active with the Relay for Life, but she has not done that in a while, and nor she has not been \ninvolved in any activities outside of her home.   \nOnce  the  Claimant  recovered  from  her  fall  at  home,  she  considered  returning  to  work.  \nAccording to the Claimant, she put in some applications, but no one would hire her.  The Claimant \nhas  past  work  experience  as  a  cashier  at  Family  Dollar,  Walmart,  and  a  Shell  station.  She  has \nunloaded  trucks  of  merchandise.  She  also  worked  as  a  CNA,  substitute  teacher,  and  as  an \naide/paraprofessional  at  the  school.    The  Claimant  confirmed  that at page 171 of Claimant’s \nExhibit, she provided a list of the job applications and places that she submitted job applications.  \nHowever, the Claimant agreed that she has not received any follow up or job offers.   \nThe Claimant confirmed that she would have continued working until full retirement had \nshe not had her injuries.   She confirmed that full retirement age for her would have been 67½ .  \nThe Claimant denied any prior problems with her back or hip before her  work-related injury of \nOctober  2020.   In  addition to  rheumatoid  arthritis,  the  Claimant  suffers  from  diabetes  and  high \nblood pressure.  The Claimant denied that her pre-existing conditions interfered with her working \nlife or her ability to perform any of her job functions.   As far as prior surgeries in her lifetime, the \n\nMcKamie- H008571 \n \n13 \n \nClaimant  had  her  appendix  removed  when  she  was  17  years  old.    She  also  underwent  a  tubal \nligation.  The Claimant previously suffered a broken left wrist and a trigger finger.   However, she \ndenied  that  any  of  these  conditions  interfered  with  her  working  life.    She  also  suffered  a  prior \nbroken left shoulder, but no surgery was required.  According to the Claimant, this condition did \nnot interfere with her job abilities or performance.   \nOn cross-examination, the Claimant confirmed she completed three years of college work \nat SAU.   The Claimant confirmed that essentially, she might have one year of college left before \nshe could complete a college degree.  She testified that she was studying to become an elementary \nschool teacher.  The Claimant testified that when she went to work for DHS, she started out as a \ndocument examiner and moved up to a secretary II position.  Later, the Claimant’s position was \nreclassified to a local office administrative assistant (LOAA), which is the position she held at the \ntime of her October 27, 2020 work-related injury.  \nWith respect to her employment duties, the Claimant  confirmed she was  responsible for \nentering information into the computer.  She also assisted with the computer set-ups and things of \nthat nature.  The Claimant testified that she entered information into the computer when people \napplied  for  assistance,  such  as  Medicaid  and  food  stamps.    However,  she  denied  that those \nactivities required a lot of typing.  She verified that she was doing those kinds of activities during \nthe last four months of her employment until she retired.  The Claimant also confirmed that she \nworked full-time during her last few months of employment with DHS.   \nShe confirmed that Dr. Smolarz performed surgery on her hip.  As of the date of hearing, \nthe Claimant did not have any additional surgeries scheduled for her hip although she has an issue \nwith “a screw backing out.”  She admitted that she has no return appointments scheduled with Dr. \nSmolarz.  The Claimant confirmed that he released her to work on January 7, 2021.  She confirmed \n\nMcKamie- H008571 \n \n14 \n \nseeing Dr. Smolarz after her fall with the cane earlier in the year.   The Claimant testified that it \nhas  been  six  months  since  her  last  visit  with  him.    She  reaffirmed  that  she  returned  to  work  in \nJanuary 2021 and retired on April 30, 2021.  As of May 1, the Claimant is considered retired and \neligible for retirement benefits.  She denied that she went back to DHS after she retired and had \nany further discussions with them about returning to work for them.  The Claimant admitted that \nshe lives in Lewisville, Arkansas and it is about thirty-five miles from Texarkana.    \nThe Claimant confirmed that she saw Dr. Michael Calhoun for her low back problems for \nwhich he performed a surgical procedure.  She denied that Dr. Calhoun has planned any additional \nprocedures for her low back.  The Claimant denied telling Dr. Calhoun in June of 2022 that she \nwished to take only over-the-counter medication  for her pain.  However,  she did admit that she \ntold him she did not want to take any more medication because she hates swallowing a bunch of \npills. \nThe Claimant confirmed that she is able to operate a computer.  She also has the ability to \noperate a smart phone and send a text message and do e-mail on her phone.  She balances her own \ncheckbook and is able to drive.  The Claimant testified that the potential employers of record did \nnot require an online application process.  She denied having looked into the possibility or come \nacross any employer that might allow her to work remotely from her home.   \nRegarding additional medical treatment, the Claimant agreed that no other epidural steroid \ninjections are planned for her low back or hip are planned by Dr. Roman.  The Claimant denied \nthat Dr. Roman or Dr. Smolarz has proposed any additional surgery, nor does the Claimant have \nany return appointments scheduled with Dr. Smolarz or Dr. Calhoun. \n\nMcKamie- H008571 \n \n15 \n \nOn redirect-examination, the Claimant denied she was in any position to pursue a degree \ngiven her current circumstances.  The Claimant testified that the only way she could teach is from \nhome.                                                      \nMedical Evidence \n An  Operative  Report  was  authored  by  Dr.  Gregory  J.  Smolarz  on  October  28,  2020 \nregarding his surgical intervention on the Claimant’s hip:  \nPre-Operative Diagnosis \n Minimally displaced comminuted subcapital left femoral neck fracture.  \n \nPost-Operative Diagnosis  \nSame. \nProcedure(s) Performed  \nCannulated screw fixation left hip. \n \nOn  November  10,  2020,  the  Claimant  presented  to  Dr.  Smolarz  for  postop  follow-up  of  \nplacement of three cannulated hip screws, which he performed on her left hip two weeks ago.  The \nClaimant reported she was feeling better and keeping the weight off of her left hip.  At that time, \nthe Claimant denied any complaints of numbness or tingling.  An MRI of the Claimant’s left hip \nwas performed with an impression of: “1. Left femoral neck ORIF with anatomic alignment.  2. \nBilateral hip calcific tendinitis.”  His assessment was “Supcapital fracture of neck of femur, left, \nclosed, initial encounter.”  Dr. Smolarz instructed the Claimant to remain toe touch weight bearing \non the left for another two weeks.  After that, the Claimant could start walking on the left side.  Dr. \nSmolarz discussed with the Claimant the possibility of avascular necrosis in six to twelve weeks. \nAt  that  time,  Dr.  Smolarz  directed  the  Claimant  remain  off  work  pending  her  return  visit  and \nfindings at the next scheduled visit.  He noted that the nurse case manager who presented with the \nClaimant at the office visit was also provided this information. \n\nMcKamie- H008571 \n \n16 \n \n The Claimant presented to the office of  Dr. Smolarz for follow-up of her hip surgery under \nthe  care  of  Heather  Leslie,  CCMA  (Medical  Assistant),  December  10,  2020.      Per  these  clinic \nnotes, the Claimant was tolerating standing.  On physical examination, Dr. Smolarz opined that \nthe Claimant walked with a slight antalgic gait favoring the left lower extremity.  Her incision was \ncompletely healed.  Left hip x-rays revealed “No acute bony findings and the facture was healing.”   \n  On March 23, 2021, the Claimant presented to Dr. Smolarz for follow-up of her hip injury.  \nThe Claimant was accompanied by the nurse case manager, but she remained in the waiting area \ndue to clinic restrictions.  At that time, the Claimant continued to have pain on her left hip.  Dr. \nSmolarz  reviewed  findings  of  x-rays  of  the Claimant’s hip  with  her.  Specifically,  this  x-ray \nindicated  that  the  facture  was  healing  and  in  good  position  and  alignment.    His  assessment \nincluded: “1. Subcapital fracture of femur, left, closed, with routine healing, subsequent encounter.  \n2.  Hip pain, left.”   The  Claimant  was  directed  to  undergo  a  left  hip  cortisone  injection  under \nfluoroscopy.”     \n The Claimant resigned from her position with the Arkansas Department of Human Services \non March 31, 2021 effective April 30, 2021.   \n Dr.  Rudy  Braza  performed  a  fluoroscopic-guided  left  hip  steroid  injection  on  the \nClaimant’s left hip  on April 15, 2021 with an impression of: “fluoroscopic-guided left hip steroid \ninjection without immediate complication.”        \n   On May 14, 2021 the Claimant presented to Dr. Smolarz for a follow-up visit of her left \nhip pain.  The Claimant reported continued pain in her left hip, but she did state that she was doing \nbetter after she got the steroid injection.  Per this clinic note, Dr. Smolarz performed x-rays of the \nClaimant’s left hip and reviewed the findings with her.  The findings indicated a healed fracture, \nthree screws in place and in good position with alignment.  Some degenerative changes were also \n\nMcKamie- H008571 \n \n17 \n \nnoted.  Dr. Smolarz  assessed the Claimant with “Subcapital fracture  of femur, left closed, with \nroutine healing, subsequent encounter.”   The  Claimant  was  given  a  prescription  for  physical \ntherapy of the left hip, which would give the Claimant the opportunity to strengthen the muscles \nand improve her overall pain.  Dr. Smolarz noted that the Claimant used a cane for support of her \nleft hip when walking.     \n Dr.  J. Michael Calhoun evaluated the Claimant on September 1, 2021 due to a complaint \nof lower extremity pain.  According to this clinic note, Dr. Smolarz stated that a lumbar MRI was \nrecently  obtained  with  findings  of   “L4-5  spondylolisthesis,  but  clearly,  a  large  central  disc \nherniation  at L4-5  with  stenosis.”    Dr.  Calhoun assessed  the  Claimant  with  “Lumbar  disc \nherniation  (M51.26);  Lumbar  stenosis  (M48.061);  Spondylolisthesis  of  the  Lumbar  Region \n(M43.16); and Lumbar Radiculopathy (M54.16).”  Dr. Calhoun opined that the Claimant’s work \ninjury  was  the  major  contributing  cause  of  the  development  of  her  disc  herniation.  Yet,  Dr. \nCalhoun  stated:  “I  will  consider  the  L4-5  spondylolisthesis  as  a  pre-existing  and  unrelated \ncondition.”  Nevertheless  Dr.  Calhoun  provided  the  Claimant  with  treatment  options  including \nsurgery, physical therapy, lumbar epidural steroid injections or a left L4-5 hemilaminectomy and \nmicrodiscectomy.  The Claimant elected to undergo surgical intervention for her back injury.    \n On October 18, 2021 the Claimant underwent lumbar surgery by Dr. Calhoun.  Per a clinic \nnote written that same day,  Dr. Calhoun wrote the following in an Operative Report: \nPREOPERATIVE DIAGNOSIS: \nL4-L5 central herniated nucleus pulposus with stenosis and radiculopathy. \n \nPOSTOPERATIVE DIAGNOSIS: \nL4-L5 central herniated nucleus pulposus with stenosis and radiculopathy. \n \nOPERATIVE PROCEDURES: \nLeft L4-L5 hemilaminectomy, microdiscectomy. \n \nDr. Calhoun authored a Post Operative Note on November 19, 2021.  \n\nMcKamie- H008571 \n \n18 \n \nThe  patient  is  one  month  status  post  a  left-L4-5  microdiscectomy.    She  still  has  some \nresidual left leg symptoms.  Her incision is okay.  She has started doing the exercises she \nwas shown from physical therapy.  We’re placing her on a Medrol Dosepak.  She has \nreceived Zanaflex 4 mg #30 with refills. She is not released to work in any capacity, but \nshe is retired. \n \n The Claimant saw Dr. Calhoun for a follow-up visit on December 16, 2021.  She was two \nmonths out post status left L4-5 microdiscectomy.  At that time, Dr. Calhoun noted the Claimant \nwas still having pain over her left lateral thigh.  He stated that this was the area where she had her \nleft femur fracture repaired.  Dr. Calhoun stated the plan was to see the Claimant back in the clinic \nin  a  month  and  at  that  time  maximum  medical  improvement  (MMI)  would  be  attained  and  she \nwould have a 10% impairment rating to the body as a whole.  Her current restrictions would include \nno lifting more than ten pounds and no repetitive bending, twisting, or lifting. \nOn  January  5,  2022  the  Claimant  saw  Dr.  Calhoun  for  a  follow-up  visit  of  her  lumbar \nsurgery. Dr. Calhoun noted that the Claimant would see her orthopedist.  However, Dr. Calhoun \nstated , “ I doubt the orthopedist will have anything else to offer the patient (the Claimant) and will \ncontinue to say her pain is radicular in nature.”  At that time, the Claimant reported to Dr. Calhoun \nthat she still had pain and tenderness over the left lateral thigh.  Basically, Dr. Calhoun opined that \nthe Claimant’s left thigh pain was the result of her lower back injury.  He pronounced the Claimant \nto be at MMI with regard to her lumbar surgery.  However, Dr. Calhoun stated that the Claimant \ndid not have any specific restrictions with regard to her lumbar surgery.  Specifically, Dr. Calhoun \nwrote “She has suffered a 10% impairment to  the  whole  person  according  to  the  4\nth\n  edition  of \nAMA Guides to Permanent Impairment.” \nThe Claimant underwent an Independent Medical Evaluation on February 14, 2022 by Dr. \nCarlos Roman due to continued left hip, groin, and thigh pain.  The Claimant was noted to walk \nwith an antalgic gait with the use of a single pronged cane.  At that time, the Claimant reported \n\nMcKamie- H008571 \n \n19 \n \nthat she had continued pain down her posterior thigh that went away with surgery.  However, since     \nher surgery, the Claimant stated the pain was constant in her left groin and left buttock.  Dr. Roman \nstated the following Final Diagnoses: “1. Lumbar radiculopathy left side L3-L4.  2. Low back pain. \n3. Left hip pain. 4. Status post left hip fracture. 5. Open reductions and internal fixation, left hip.  \n6. Lumbar decompressive surgery, L4-L5. 7. Lumbar disc bulge, L4-L5.  8. Significant rheumatoid \narthritis.  9. Long-term opiate use. 10. Opiate use by way of Tramadol.”  He recommended that \nthat  the  Claimant  undergo  a  pinpoint  steroid  injection  at  the  greater  trochanter  in  the  clinic  to \nprovide  some  relief  of  symptoms  and  suggested  a  LESI  at  L4-L5.      Dr.  Roman  opined  that  the \nClaimant’s symptoms were consistent with swelling at the L4-L5 nerve root.                                                \nOn March 8 2022, the Claimant was scheduled for a return visit to Dr. Gregory Smolarz, \northopedic with complaints of pain in her left hip after on March 4, 2022.  She reported a fall over \na kitchen chair and landed on her left hip.  The Claimant was seen at Wadley ER on the day of her \nfall.  She was referred over to him for further evaluation for a possible fracture in her pelvis.  Dr. \nSmolarz noted that the Claimant had a history of previous sub-capital fracture of left femur.  Since \nher  fall,  the  Claimant  reported  she  had  continued  pain  and  difficulty  standing  due  to  pain.    Her \npain was noted to be present prior to her fall.  Dr. Smolarz’s Assessment/Plan included: \n1.  Closed fracture of multiple rami of left pubis, initial encounter (HC Category). \n2.  Closed subcapital fracture of let femur with delayed healing, subsequent encounter.   \n \nFor the left hip he discussed with the Claimant the possibility to a bipolar endoprosthesis  or total \nhip replacement. Dr. Smolarz directed the Claimant to follow-up with him in four to six weeks. \n The Claimant returned to Dr. Smolarz on April 21, 2022 for a follow-up visit for her left \nhip and pelvis pain.  Dr. Smolarz attributed the Claimant’s hip pain to one of the screws in the hip \nbeing backed out some, of which was revealed on a CT scan of the pelvis.  Dr. Smolarz noted that \nthe Claimant’s continued hip pain was due to the screw.  He stated that the Claimant’s  pelvic \n\nMcKamie- H008571 \n \n20 \n \nfracture  was  healed,  and  the  screws  were  in  the  same  place  since  the  time  the  CT  scan  was \nperformed.    However,  Dr.  Smolarz  told  the  Claimant  he  would  be  unable  to  remove  the  screw \nbecause it was needed for stability.  At that time, Dr. Smolarz opined that the Claimant was doing \nwell, and no further treatment was indicated at that time for her left hip.      \n On May 9, 2022, the Claimant returned to Dr. Roman for severe pain down her left hip, \nleft leg, and lower back, for which he performed an epidural injection.   \n PREOPERATIVE DIAGNOSES: \n1. Lumbar radiculopathy left L4-L5. \n2. Lumbar disk disease. \n3. Previous lumbar decompressive surgery.    \n  \nPOSTOPERATIVE DIAGNOSES: \n1. Lumbar radiculopathy left L4-L5. \n2. Lumbar disk disease. \n3. Previous lumbar decompressive surgery. \n \nOPERATIVE PROCEDURE: \nLumbar epidural steroid injection, L4-L5, left bias. \n \nDr. Roman saw the Claimant for a follow-up visit on June 7, 2022 due to ongoing pain.  At  \nthat time, the Claimant had radicular pain present in the L4 pattern but overall, her pain was under \ncontrol.  The LESI performed in May gave her some relief and she no longer experienced pain in \nthe groin area.  The Claimant continued to walk with an antalgic gain with the use of a single prone \ncane.  She had a little bit of joint tenderness of the greater trochanter of the left, but he injected \nthat last time with good relief.  Dr. Roman released the Claimant from his care with follow-up in \na year.       \n An  Impairment  Rating  Evaluation  was  performed  on  October  3,  2022.    The  examiner \nassessed the Claimant with a 10% whole person rating per Dr. Calhoun for her lumbar injury.  The \nClaimant was assessed an additional 8% whole impairment for her left side femoral neck fracture.   \n\nMcKamie- H008571 \n \n21 \n \nThe  examiner  combined  these  two  ratings  using  the  value  charts  (p.  322  of  the  Guides),  which \namounted to a totaled combined rating of 17% to the whole person.  The Respondents accepted \nthis rating and began making payments to the Claimant.      \n The  Claimant’s  Oral  Deposition  was  taken  on  September  8,  2022.\n1\n    Her  deposition \ntestimony is consistent with her hearing testimony.  The original copy of the Claimant’s deposition \nis retained in the Commission’s file.       \nAdjudication \nA. Temporary Total Disability Compensation  \nThe Claimant contends she is entitled to temporary total disability compensation from May 1, \n2021 through October 17, 2021.  The Respondents contend that the Claimant is not entitled to any \nadditional indemnity benefits because had she not chose to retire, she would still be working for \nDHS.    \nIn the case at bar, on October 27, 2020 the Claimant suffered an admittedly compensable injury \nto her left hip, which is a scheduled injury.  Subsequently, the Claimant was found to have suffered \na  compensable  injury  to  her  back,  which  is  an  unscheduled  injury.    Given  the  severity  of  the \nClaimant’s compensable back injury, I am convinced that it was primarily for that reason she was \nunable to continue working at DHS beginning on May 1, 2021 and continuing through October \n17, 2021.  Therefore, an analysis for temporary total disability compensation for the Claimant’s \nscheduled hip injury is not necessary.     \n With that in mind, an injured employee for an unscheduled injury is entitled to temporary total \ndisability  compensation  during  the  time  that  she  is  within  her  healing  period  and  totally \n \n1\n Regarding the Claimant’s Oral Deposition of September 8, 2022 there is a clerical error regarding the file \nnumber reflected on this document.  The correct WWC File No. for this claim is: HOO8571.  \n\nMcKamie- H008571 \n \n22 \n \nincapacitated  to  earn  wages.   Arkansas  State  Highway  and  Transportation  Department  v. \nBreshears, 272 Ark. 244, 613 S.W.2d 392 (1981).  The healing period is that period for healing of \nthe injury which continues until the employee is as far restored as the permanent character of the \ninjury will permit.  Nix v. Wilson World Hotel, 46 Ark. App. 303, 879 S.W.2d 457 (1994).  If the \nunderlying condition causing the disability has become stable and nothing further in the way of \ntreatment will improve that condition, the healing period has ended. Id.  Temporary total disability \ncannot be awarded after the Claimant’s healing period has ended.  Trader  v.  Single  Source \nTransportation, Workers’ Compensation Commission E507484 (February 12, 1999). \n Here, the Claimant suffered an admittedly compensable injury to her left hip on October \n27, 2020 when she tripped and fell while working for the Respondents as described above in full \ndetail.  The Claimant was transported to a local hospital following her fall.  The Claimant came \nunder the care of Dr. Smolarz and he performed surgery on the Claimant’s left hip on the day of \nthe incident.  \nThe  Claimant  was  the  sole witness to testify.  After having observed the Claimant’s \ndemeanor during the hearing and when comparing her testimony with the medical evidence and \nother  documentary  evidence,  I  found  her  to  be  a  credible  witness,  particularly  regarding  her \ninability to work due to her compensable back injury for the time frame in question.  Therefore, \nthe Claimant’s refusal to continue her employment with DHS beginning May 1, 2021 was not \nunreasonable and is not a bar to her claim for temporary total disability benefits.                 \nWith that in mind, the Claimant was released to return to work on January 7, 2021, by Dr. \nSmolarz due to her admittedly compensable left hip injury.  Therefore, the Claimant returned to \nwork  for  DHS  on  January  11,  2021  in  her  previous  job.    However,  the  Claimant  experienced \nsignificant and excruciating pain down the left side of her back into left knee.   At that time, the \n\nMcKamie- H008571 \n \n23 \n \nClaimant  had  difficulty  working,  standing,  lifting,  and  sitting.    Therefore,  the  Claimant  retired \nfrom DHS effective April 30, 2021.  Her testimony demonstrates she was not able to continue to \nperform her employment duties at that time due to back pain and other related symptoms.    \nSubsequently,  the  Claimant  came  under  the  care  of  Dr.  Calhoun  for  her  back  condition.   \nOn August 25, 2021 the Claimant underwent a lumbar MRI.  She was found to have a significant \nherniated disc at L4-5 causing impingement that was the source of her continuing symptoms.  Dr. \nCalhoun related this to her work injury of August 27, 2020.   The Claimant underwent back surgery \nin the form of a left L4-5 microdiscectomy  by Dr. Calhoun on October 25, 2021.  Her testimony \nvalidates that she was unable to work from May 1, 2021 until at least October 17, 2021 due to her \ncompensable  back  injury.    Given  the  severity  of  the Claimant’s herniated  disc  which  required \nsurgery,  I am convinced she had a good faith basis for being unable to perform her job duties and \nthat it  was  due  to  her  compensable  back  injury  that  she  was  unable  to  continue  performing  her \nemployment at DHS, beginning on May 1, 2021.  Of significance, the parties stipulated that the \nClaimant reached MMI for her back injury on December 16, 2021.  \n   Under these circumstances,  I  find that the Claimant proved  she  remained within a healing \nperiod and was totally incapacitated to earn wages beginning May 1, 2021 and continuing  until \nOctober 17, 2021.   As such, I further find that the Claimant proved her entitlement to temporary \ntotal disability from May 1, 2021 through October 17, 2021.  \nB. Wage Loss Disability \nHere, the Claimant has asserted her entitlement to wage loss disability over and above her   \n10% impairment rating for her compensable back injury of October 2020.  The parties stipulated \nthat the Claimant was entitled to a determination of wage disability of the combined rating of 17% \nfor the 8% hip impairment rating and the 10% impairment rating for the lumbar spine.  However, \n\nMcKamie- H008571 \n \n24 \n \nper my e-mail exchanges with the parties in this regard (which has been blue-backed and made a \npart of the record as Commission’s Exhibit 2),  I find that the Claimant’s hip injury in the form of \na  femoral  neck  fracture,  is  listed  in  the  A.M.A.  Guides  4\nth\n  Edition  under  the “lower extremity \nimpairments” section.  Therefore, I find that the Claimant’s hip injury is a scheduled injury.  As \nsuch,  I  must  agree  with  the  Respondents  that  only  the  lumbar  spine  impairment  rating  of  10% \nshould be used in the wage-loss disability determination.   \n  In that regard, a Claimant who has sustained a scheduled injury is limited to the applicable \nallowances in Ark. Code Ann. §11-9-521 and such benefits cannot increased by consider wage-\nloss factors Federal Compress &Whse. v. Risper, 55 Ark. App. 300, 935 S.W. 2d 279 (1996).  \n            When  considering  claims  for  permanent  partial  disability  benefits  in  excess  of  the \nemployee's   percentage   of   permanent   physical   impairment,   the Workers’  Compensation \nCommission  may  take  into  account,  in  addition  to  the  percentage  of  permanent  physical \nimpairment,  such  factors  as  the  employee's  age,  education,  work  experience,  and  other  matters \nreasonably expected to affect her future earning capacity.  Ark. Code Ann. § 11-9-522(b)(1).  In \nconsidering  factors  that  may  affect  an  employee's  future  earning  capacity,  the  appellate  court \nconsiders the Claimant' motivation to return to work, since a lack of interest or a negative attitude \nimpedes an assessment of the claimant's loss of earning capacity.  Ellison v. Therma Tru, 71 Ark. \nApp. 410, 30 S.W.3d 769 (2000). \nThe Claimant is 61 years of age.  She attended college for three years and studied to become  \nan elementary educator.  However, the Claimant essentially testified that she is physically unable \nto  return  to  college  due  to  her  compensable  back  injury  of  October  2020.    The  Claimant  began \nworking for DHS in November 2005.  While working for DHS she performed primarily clerical \ntype employment duties.  In her last position, the Claimant worked as an administrative assistant.  \n\nMcKamie- H008571 \n \n25 \n \nShe assisted clients with filling out applications for Medicaid and food assistance.  According to \nthe Claimant, she also had to make copies of documents for clients making application for these \nprograms.  The Claimant also assisted clients with the use of the kiosk.  According to the Claimant, \nshe ordered supplied for the office and was required to put them away.  This job task caused the \nClaimant to have to lift heavy cases of paper.  Her hourly rate of pay at the time of her 2020 injury \nwas $13.70.   \nHowever, the Claimant took early retirement from DHS effective April 30, 2021 because \nshe  was  having  ongoing  problems  with  chronic  back  pain  and  other  related  symptoms.    She \ncredibly testified she was unable to perform her employment duties without crying.  The Claimant \nunderwent  an  MRI  in  August  2021  and  her  complaints  of  pain  were  substantiated.    The  MRI \nrevealed  a  significant  herniation  at  L4-L5  causing  impingement.    Dr.  Calhoun  attributed  these \nfindings to the Claimant’s work-related injury of October 2020.    The Claimant underwent back \nsurgery under the care of Dr. Calhoun on October 18, 2021.   The Respondents accepted this claim \nand  have  paid  benefits  including  the  10%  impairment  rating  assessed  by  Dr.  Calhoun,  with  the \nexception of the above period of temporary total disability currently in question.  Yet, Dr. Calhoun \nassessed  the  Claimant  to  be  at  MMI  for  her  back  injury  on  December  16,  2021.    Since  leaving \nDHS in April 2021, the Claimant has not tried to return to work for DHS.  Following her deposition \nin  September  2022,  the  Claimant  submitted  job  applications  at  several  places.      However,  the \nClaimant has not heard from any of the potential employers or received any follow-up or job offers. \n She has prior work experience  as a  cashier  at Family Dollar, and at a Shell   gas station.  \nThe Claimant has also worked as a CNA, substitute teacher and as a paraprofessional.  \n The Claimant ambulates with a cane and walker.  She is unable to engage in prior hobbies \nof gardening because she is unable to use a tiller and perform other tasks related to gardening such \n\nMcKamie- H008571 \n \n26 \n \nas walking, bending, and standing.  The Claimant is able to perform limited household chores and \nher ability to ambulate is significantly restricted primarily due to her back injury.  Yet the Claimant \nis able to drive.  She is under the care of Dr. Roman for pain management due to her compensable \nback  injury  and  resulting  symptoms.    However,  the  Claimant  does  not  receive  any  additional \nprescription pain medication from Dr. Roman.  The Claimant’s medication regimen for rheumatoid \narthritis which includes Tramadol, is sufficient to cover her back pain and other symptoms.  Dr. \nRoman has performed one lumbar injection with temporary relief of her back pain symptoms.  She \nhas another follow-up visit with Dr. Roman this March of 2023. \n Although Dr. Calhoun assessed the Claimant a 10% impairment rating to her back, he did \nnot place any physical restrictions on the Claimant.  Despite this, the Claimant is limited in her \nability  to  lift,  walk,  stand,  and  sitting.    This  was  demonstrated by  the  Claimant’s  guarded \nmovements  during  the  hearing,  and  her  testimony  which  was  is  corroborated  by  the  medical \nevidence of record.  The Claimant credibly testified that she had not planned to return until she \nreached  full  retirement  age  for  Social  Security,  which  was  age  sixty-seven.    Currently,  the \nClaimant    receives  early  retirement  benefits  from  the  state  of  Arkansas/DHS  in  the  amount  of \n$210.17.  She has applied for Social Security disability benefits, but her claim was denied.  The \nClaimant is awaiting a court date on this claim.  She is married and her husband is retired.  In fact, \nher testimony demonstrates she has a granddaughter that she is unable to lift due to her injury. \n Based on my review of the evidence, including the Claimant’s credible testimony, and \nwhen  considering  her  advanced  age,  education,  work  experience,  the  nature  and  extent  of  her \ninjury, the 10% permanent anatomical impairment to the body as a whole for her back compensable \ninjury, use of assistive devices, her restricted activities of daily living, prior work experience, and \nthe fact that she had to take early retirement, and all other relevant matters reasonably expected to \n\nMcKamie- H008571 \n \n27 \n \naffect her future earning capacity, I find that the Claimant has proven by a preponderance of the \nevidence that she sustained a 27%  wage-loss earning capacity in excess of her 10% permanent \nanatomical impairment to the body as a whole for her compensable back injury of October 2020.        \nC. Controverted Attorney’s Fee \nIt is undisputed that the Respondents have controverted this claim for additional benefits as \nevidenced by their stipulation to conversion.  Therefore, pursuant to Ark. Code Ann. §11-9-715 \n(Repl. 2012), the Claimant’s attorney is entitled to a controverted attorney’s fee on all indemnity \nbenefits awarded herein.  \nAWARD \nThe Claimant has met her burden of proving by a preponderance of the evidence that she \nis entitled to temporary total disability compensation for her October 27, 2020 compensable back \ninjury from May 1, 2021 through October 17, 2021.   \nAdditionally, the Claimant proved by a preponderance of the evidence she sustained wage \nloss disability in the amount of 27% over and above her 10% permanent anatomical impairment \nfor her compensable back injury of October 27, 2020.    The Claimant’s hip injury in the form of \na  femoral  neck  fracture,  is  listed  in  the  A.M.A.  Guides  4\nth\n Edition  under  “lower  extremity \nimpairments” section.  Therefore, I find that that her hip injury is a scheduled injury.  As such, the \nhip injury is not a consideration for wage-loss disability. \nThe Respondents are directed to pay benefits in accordance with the findings of fact set \nforth herein this Opinion.  \nAll accrued sums shall be paid in lump sum without discount, and this award shall earn \ninterest at the legal rate until paid, pursuant to Ark. Code Ann. §11-9-809 (Repl. 2012).   See \nCouch v. First State Bank of Newport, 49 Ark. App. 102, 898 S.W. 2d 57 (1995).  \n\nMcKamie- H008571 \n \n28 \n \nPursuant to Ark. Code Ann. §11-9-715 (Repl. 2012), the Claimant's attorney is entitled to \na 25% attorney's fee on the indemnity benefits awarded herein.  This fee is to be paid one-half by \nthe carrier and one-half by the Claimant.  \nAll  issues  not  addressed  herein  are  expressly  reserved  under  the Arkansas  Workers’ \nCompensation Act. \n      IT IS SO ORDERED. \n \n \n          ______________________________ \n          CHANDRA L. BLACK \n                 ADMINISTRATIVE LAW JUDGE","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO.: H008571 MARY MCKAMIE, EMPLOYEE CLAIMANT ARKANSAS DEPARTMENT OF HUMAN SERVICES, EMPLOYER RESPONDENT PUBLIC EMPLOYEE CLAIMS DIVISION, CARRIER/THIRD PARTY ADMINSTRATOR (TPA) RESPONDENT OPINION FILED MARCH 13, 2023 Hearing held before ADMINISTRATIVE LAW J UDGE...","fetched_at":"2026-05-19T23:09:23.803Z","links":{"html":"/opinions/alj-H008571-2023-03-13","pdf":"https://labor.arkansas.gov/wp-content/uploads/MCKAMIE_MARY_H008571_20230313.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}