{"id":"alj-H101400-2023-02-14","awcc_number":"H101400","decision_date":"2023-02-14","opinion_type":"alj","claimant_name":"Phillip Burks","employer_name":"Arkansas Forestry Commission","title":"BURKS VS. ARKANSAS FORESTRY COMMISSION AWCC# H101400 FEBRUARY 14, 2023","outcome":"granted","outcome_keywords":["granted:1"],"injury_keywords":["back","lumbar","thoracic","repetitive"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads//BURKS_PHILLIP_H101400_20230214.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"BURKS_PHILLIP_H101400_20230214.pdf","text_length":31455,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H101400 \n \nPHILLIP L. BURKS, EMPLOYEE       CLAIMANT \n \nVS. \n \nARKANSAS FORESTRY COMMISSION, \nEMPLOYER               RESPONDENT \n \nPUBLIC EMPLOYEE CLAIMS DIVISION \nARKANSAS INSURANCE DEPARTMENT         RESPONDENT \n    \nOPINION FILED FEBRUARY 14, 2023 \n \nHearing before Administrative Law Judge, James D. Kennedy, on the 17\nth\n day of January, \n2023, in Little Rock, Pulaski County, Arkansas. \n \nClaimant is represented by Mr. Daniel A. Webb, Attorney-at-Law, Little Rock, Arkansas. \n \nRespondents are represented by Mr. Charles H. McLemore, Attorney-at-Law, Little Rock, \nArkansas. \n \nSTATEMENT OF THE CASE \n A hearing was conducted on the 17\nth\n day of January, 2023, with the issue before \nthe Commission being permanent partial disability or wage-loss and attorney’s fees.  A \ncopy of the Prehearing Order was marked “Commission Exhibit 1” and made part of the \nrecord without objection.  The Order provided that the parties stipulated that the Arkansas \nWorkers’  Compensation  Commission  had  jurisdiction  of  the  within  claim  and  that  an \nemployer/employee  relationship  existed  on  January  25,  2021,  when  the  claimant \nsustained  a  compensable  work-related,  low  back  injury.    At  the  time  of  the  injury,  the \nclaimant was earning an average weekly wage of $574.29 entitling him to a temporary \ntotal disability rate of $383.00 and a permanent partial disability rate of $287.00.       \n The  claimant’s  and  respondents’  contentions  are  set  out  in  their  respective \nresponses  to  the  prehearing  questionnaire  and  made  a  part  of  the  record  without \n\nBURKS – H101400 \n \n2 \n \nobjection.  The sole witness was the claimant, Phillip Burks.  From a review of the record \nas a whole, to include medical reports and other matters properly before the Commission, \nand having had an opportunity to observe the testimony and demeanor of the witness, \nthe  following findings of  fact  and  conclusions  of  law are made  in accordance  with  Ark. \nCode Ann. §11-9-704. \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n1. The Arkansas Workers’ Compensation Commission has jurisdiction over this        \nclaim. \n \n2.  That  an  employer/employee  relationship  existed  on  January  25, 2021,  when \nthe claimant sustained a compensable work-related injury to his lower back that \nwas accepted by the respondents. \n \n3.  That the respondents have paid medical and indemnity benefits. \n \n4.  That at the time of the injury, the claimant was earning an average weekly wage \nof  $574.29,  entitling  him  to  temporary  total  disability  and  permanent  partial \ndisability rates of $383.00 / $287.00, respectively. \n \n5.  The  claimant  was  found  to  be  at  maximum  medical  improvement  (MMI)  on \nAugust 16, 2021, with a ten percent (10%) anatomical impairment rating to the \nbody as a whole. \n \n6.  The claimant has satisfied the required burden of proof, by a preponderance of \nthe evidence, that he is entitled to a ten percent (10%) wage-loss determination \nin addition to his anatomical impairment rating, plus attorney fees pursuant to \nArk. Code Ann. §11-9-715. \n \n7.  If  not  already  paid,  the  respondents  are  ordered  to  pay  for  the  cost  of the \ntranscript forthwith. \n \nREVIEW OF TESTIMONY AND EVIDENCE \n The Prehearing Order along with the prehearing questionnaires of the parties was \nadmitted  into  the  record  without  objection.    The  parties  submitted  a  supplemental \nresponse  to  the  prehearing  filings  which  was  admitted  as “Commission’s  Exhibit  4” \nwithout objection.  In addition, the parties submitted a clinic note from Dr. Roman that was \n\nBURKS – H101400 \n \n3 \n \nadmitted as “Joint Exhibit One” and consisted of two (2) pages.  The claimant submitted \na packet of non-medical exhibits with an index that consisted of thirty-four (34) pages that \nwas admitted into the record without objection.   The claimant also submitted an exhibit \nthat consisted of sixty-five (65) pages of medical records with an index that was admitted \nwithout objection.  The respondents submitted an exhibit of one hundred fourteen (114) \npages  of  medical  records  that  was  also  admitted  without  objection.  Finally,  the \nrespondents  submitted  an  exhibit  which  consisted  of  twenty-three  (23)  pages  of \ncorrespondence and forms that was admitted without objection. \n The  claimant  testified  he  understood  that  the  purpose  for  the  hearing  was  to \nrequest  permanent  partial  disability  or,  in  the  alternative,  wage-loss.    He  stated  he \ngraduated  from  high  school  in  California  and  started  electrical  work  in  1978,  prior  to \ngraduating high school, performing residential apprentice work.  He worked with shovels, \nladders, conduit, and electric wire along with their spools, and performed general labor.  \nHe thought he left California in 1984 or 85.  He obtained a journeyman license in California \nwhich did not transfer to Arkansas when he moved.  His first job in Arkansas was working \nfor  Odom  Mobile  Homes  in  Conway,  performing  electrical  work,  repairing  trailers,  and \nperforming similar work to what he described in California. (Tr.pp. 8-10)  His next job was \nat Ward Bus in Conway and he thought he started on August 3, 1988, and he worked for \ntwenty-five (25) years as an electrician in maintenance, working all over the plant. (Tr.pp. \n11-12)    After  Ward  Bus,  he  went  to  work  for  Springhill  Tire  for  a  year  and  a  half  and \nworked as an auto mechanic, but did not work in the tire department of the business.  His \njob involved lifting starters, transmissions, rear ends, and other heavy work.  When he left \nthere, he went to work for the Arkansas Forestry Commission in 2017 and was working \n\nBURKS – H101400 \n \n4 \n \nthere  when  he  was  injured.    He  has  not  worked  since  his  injury  and  was  eventually \nterminated.  He thought he had worked for them in the shop for five (5) plus years, where \nhe worked on military surplus vehicles.  His job involved going out and determining the \ncost  to  repair  a  military  surplus  vehicle and  if  the  vehicle  was  worth  the  cost  of  repair. \n(Tr.pp. 15-18) \n The work for the Forestry Commission involved heavy lifting, especially involving \nthe   tires   that   probably   weighed   two   or   three   hundred   (200-300)   pounds,   the \ntransmissions,  and  the  batteries  that  probably  weighed  one  hundred  (100)  pounds. \n(Tr.pp. 19-20)  The claimant was injured when he picked up a battery and twisted around.  \nThe respondent got him to Dr. Overley, who performed surgery.  He went in on a Tuesday \nfor outpatient surgery and three (3) days later, due to the pain, went to UAMS for another \nsurgery  on  Friday.    The  claimant  stated  that  after  the  two  (2)  surgeries,  he  was  still \nexperiencing pain.  He agreed he was paid by the respondent until he reached maximum \nmedical  improvement  on  September  13,  2022.  He  then  received  permanent  partial \ndisability from the respondent and expected it to run out around June or July.  He also \ntestified  he  never  had  a  job  in  his  life  that  did  not  involve  heavy  lifting  and  had  never \nworked  as  a  clerk  in  an  office  setting.    He  admitted  still  seeing  Dr.  Roman  who was \nproviding injections for his lower back.  He also thought they had gone in and burnt nerves \nin  his  back.    He  stated  he  currently  had  trouble  walking,  sitting,  sleeping,  twisting  and \npicking stuff up.  Some days were better than others.  He also admitted currently taking \nHydrocodone and Flexeril. (Tr.pp. 23-27)  He received a little relief from Hydrocodone but \nthat Flexeril made him want to sleep. (Tr.p. 28) \n\nBURKS – H101400 \n \n5 \n \n The  claimant  stated  the  Forestry  Commission  ultimately  fired  him  and  they \nprovided no accommodations for a diesel mechanic. (Tr.p.29)  He was absolutely willing \nto  continue  working  for  the  State,  but  they  just  pointed  him  towards  the  public  notice \nboard.  He received an email stating he was terminated because there was no light-duty \nand he had declined the job.  He went on to state no jobs were offered and that, “I did not \ndecline  a  job, period.”   The  claimant also  admitted  he had  received  some  consultation \nfrom a vocational expert.   He testified he planned on returning to work but was not sure \nwhat  he  could  do.  (Tr.pp. 30-31)    He  planned  on  getting  back  in  the  work  force  and \nworking  until  his  mid  60’s.    He came  from  a  long  line  of  people  that  worked  until  like \nseventy-three    (73)   or  seventy-six  (76)  and intended  to  find  a  job  that’s  suitable  to  his \nphysical limitations.  He also admitted he was returning to Dr. Roman on April 19, for a \ncheck-up. (Tr.p. 32)   \nThe  claimant  was  born  on  September  16,  1963,  making  him  over  fifty-nine  (59) \nyears  old  at  the  time of  the hearing.  (Tr.p. 34)  Under  cross-examination,  the  claimant \nadmitted performing electrical work in California and at Ward Bus, and that he had worked \nfour  (4)  years in  an  apprenticeship  in  California  where  he  obtained his  journeymen’s \nlicense.  The claimant also admitted taking some classes at the Community College in \nMorrilton involving electrical matters.  He also admitted obtaining some certificates while \nat  Ward  Bus  which  involved  forklift  driving, hydraulics  and AC.  (Tr.pp.  35-37)    He  also \nadmitted  he  had  obtained  his  commercial driver’s  license,  where he  had to  read  some \nbooks and take a written test and he still  maintained the license.  He also admitted he \nwas a union steward at one point and was one of twenty (20) elected officials.  As a union \nsteward, a member would approach him with a problem and one of his duties would be \n\nBURKS – H101400 \n \n6 \n \nto  investigate  the  issue  which  required  keeping  records  and  paperwork.    The  job  also \nrequired keeping up with the union dues “to a point.” (Tr.pp. 38-41)  He admitted holding \nseveral positions with the union and keeping records on the computer and being capable \nof using emails. (Tr.pp. 42-43)  While working for the Forrest Service, he used a book or \nmanual to provide part numbers for repairs. (Tr.p. 44) \n The claimant received significant conservative treatment prior to the surgery on his \nlower  back  which he  had  tried  to  avoid.    He  had  previously  had  surgeries on  both \nshoulders involving his rotator cuffs.  He also admitted to a previous collapsed lung which \nrequired  surgery  and  a  history  of  stroke,  with  at  least  six  (6)  strokes  that  he  knew  of.  \n(Tr.pp. 47-48)  The claimant also admitted that after the back surgeries, the sciatic nerve \npain in both legs subsided, but he still had back issues and that’s the reason he’s currently \nseeing Dr. Roman.  In regard to the injections and relief, he responded, “sometimes you \nfeel  like  you’re  doing  all  right,  and  then  you’re  right  back  where  you  started.” \n(Tr.pp. 49-50) \n The claimant also admitted the medications and injections that he was receiving \nhelped  a  little  sometimes.    He  could  sit  still  or  stand  for  about  five  (5)  minutes,  before \nhaving to move and change positions.  He admitted being able to pick up a gallon of milk \nat the grocery store and grocery shopping.  He also remembered his functional capacity \nexamination and stated he was looking for work, but had not applied for a job at the time \nof the hearing.  He admitted driving himself to Illinois after the accident.  While there, he \nshot a deer by himself. (Tr.pp. 53-57) \n The claimant denied working anywhere since January of 2022.  He also admitted \nbeing contacted by his employer after the functional capacity exam and being released \n\nBURKS – H101400 \n \n7 \n \nby  his  physician  at  maximum  medical  improvement.    He  admitted  meeting  with  his \nemployer  and  wanting  to  keep  his  mechanic  job.    He  denied  talking  to  them  about  a \ndifferent  job.  (Tr.pp. 58-59)    He  testified  they  did  not  have  any  accommodations  for  a \nmechanic job and later receiving a letter that his employment was terminated.  He also \nadmitted  seeing  the  vocational  rehabilitation  counselor  and  the  possibility  of  exploring \nwork outside of the Forestry Commission. (Tr.pp. 60-61)  He received a follow-up report \non  January  10  that  provided  a  list  of  jobs  in  and  around  Greenbrier  and  Conway  and \nstated he planned on following up with the list. (Tr.p. 62)  The claimant also admitted to \napplying for unemployment, but had received a letter stating that he was not apparently \ngoing to receive any, and planning to appeal the decision. (Tr.p. 64)  In regard to pursuing \nthe  jobs  listed,  the  claimant  responded, “I  plan  on  working  somewhere,  some  way, \nsomehow.  That’s my goal” (Tr.p. 65) \n On redirect, the claimant testified he did not receive a response to the question of \nwhat jobs were available.  He would be willing to work at a job where he did not have to \npick  up  batteries  but  never  received  an  offer.      (Tr.p.  66)    The  claimant  also  admitted \ncurrently  having  trouble  with  his  shoulders,  with  the  surgery  on  his  shoulders  around \n2004.  He went on to state his shoulders are about the same.  Besides the strokes, he \nwas not aware of any additional health problems.  (Tr.pp. 67-68) \n On  recross,  the  claimant  admitted  he  had  an  in-person  meeting  with  the \nrespondent and that he did not get as far as asking if there were any other jobs available \nbut did request an accommodation for light duty as a mechanic. (Tr.pp. 69-70) \n In  regard  to  exhibits,    the  Commission  submitted  six  (6)  pages  of  additional \nevidence admitted without objection, which included the respondent’s prehearing filing in \n\nBURKS – H101400 \n \n8 \n \nregard to the hearing set for January 17, 2022.  In addition, the parties submitted a joint \nexhibit which consisted of two (2) pages of a clinic note dated January 11, 2023, from Dr. \nRoman.    The  note  provided  the  claimant  was  a  fifty-nine  (59)  year  old  gentleman  that \nsuffered  with  severe low  back  pain  with  degenerative  disc  disease.    The  claimant  had \ninjured his back while lifting a heavy battery.  He ultimately had surgery by Dr. Overley, \nwith  a  laminectomy  and  discectomy  at  the  L4-L5  level,  that  was  complicated  by  an \nepidural abscess that had to be re-drained.  A rhizotomy was performed at L2-3, L3-4, \nand L4-5, bilaterally.  The main issue today was his work status.  The FCE has him at \nlight duty and I think that this is appropriate.  As far as Social Security Disability, “he is a \ndeserving individual.”  (Jt. Ex. 1) \n “Claimant’s Exhibit 1”, consisting of thirty-four (34) pages of non-medical reports, \nwas admitted without objection.  A letter from the Arkansas Insurance Department dated \nNovember 16, 2022, provided the claimant reached maximum medical improvement on \nSeptember  13,  2022,  and  that  Dr.  Roman  assigned  a  whole-body  impairment  of  ten \npercent  (10%)  due  to  the  claimant’s  lumbar  spine  injuries  from  01/25/2021.  (Cl. \nEx. 1, p. 3)  The exhibit also contained a Vocational Rehabilitation Initial Evaluation dated \nDecember 15, 2022.  The report referred to a report that the claimant reached maximum \nmedical  improvement  on  September  13,  2022,  as  determined  by  Dr.  Samuel  Overley.  \nThe report also indicated a reliable effort was put forth on fifty-three (53) of the fifty-three \n(53) consistency measures and the claimant demonstrated the ability to perform stooping, \ncrouching, climbing stairs, push and pull a cart, and kneeling occasionally.  “He exhibited \nlimitations  with  the  ability  to  perform  an  occasional  bi-manual  lift/carry  of  up  to  twenty \n\nBURKS – H101400 \n \n9 \n \npounds.” (Cl.Ex.1, pp. 4-12)  The exhibit also included the Functional Capacity Evaluation \nthat was referred to in the report. (Cl.Ex.1, pp. 13-32) \n The claimant also submitted forty-five (45) pages of medical records admitted into \nthe record without objection.  An Independent Medical Evaluation dated by October 17, \n2022,  by  Dr.  Carlos  Roman,  provided  the  claimant  had  been  seen  by  Dr.  Overley  at \nUAMS, who, after conservative treatment by both Dr. Overley and Dr. Smith, performed \na diskectomy at L4-L5.  From an interventional standpoint, epidural injections would not \nbe indicated but a facet rhizotomy which included the L2-3, L3-4, and L4-5 facets had the \npotential to attenuate the back pain.  The claimant does not need further surgeries and \nDr. Overley also stated that. (Cl. Ex. 2, pp. 1-2) \n The  claimant  was  seen  by  Dr.  Michael  Cassat  on  February  8,  2021,  and  x-rays \nprovided the claimant had multilevel degenerative changes without evidence of instability. \n(Cl.Ex.2, pp.  3-4)    The  claimant  returned  to  Dr.  Cassat  on  February  25,  2021,  and \ndiscussed his MRI which showed a large central/extraforaminal disc at L3-4 and also at \nthe adjacent segment. (Cl. Ex. 2, pp. 5-6)  The claimant returned to Dr. Cassat on April \n7,  2021,  with  the  complaint  of  bilateral  leg  pain.  The  report  provided  for  degenerative \nchanges of the intervertebral discs at the T11-12 and T12- L1.  The L1-2 intervertebral \ndiscs  demonstrated  a  diffuse  disc  bulge  with  an  annular  tear,  but  with  no focal  disc \nprotrusion.  The L2-3 intervertebral disc demonstrated a moderate bulge with a left sided \nannular  tear  and  a  small  disc  protrusion  with  mild  spinal  canal  narrowing.    The  L3-4 \nintervertebral disc demonstrated a moderate bulge with a broad- based protrusion and an \nassociated  disc  extrusion.    The  L4-5  intervertebral  disc  demonstrated  a  moderate  disc \nbulge with a broad-based left paracentral/subarticular disc protrusion which resulted in a \n\nBURKS – H101400 \n \n10 \n \nmild spinal canal narrowing.  The passing left L5 nerve root was focally in contact with \nthis  disc.    The  L5-S1  intervertebral  disc  demonstrated  a  mild  bulge  with  a small  focal \ncentral protrusion. (Cl. Ex. 2, pp. 7-10) \n The claimant was seen by Dr. Samuel Overley on May 18, 2021, for low back pain \nthat  radiated  bilaterally  down  both  legs.    He was  wanting  to  exhaust  all  conservative \nmeasures before discussing surgery.  The report provided Dr. Overley felt that a round of \ninjections  targeting  the  L5  nerve  roots  would  give  him  some  improvement  of  his pain \nsymptoms. (Cl. Ex. 2, pp. 11-16)  The claimant returned to Dr. Overley on September 21, \n2021, reporting he thought his pain was worse and he  wanted to proceed with another \nround of epidural steroid injections. (Cl. Ex. 2, pp. 17-18)  Approximately two (2) months \nlater, the claimant again returned to Dr. Overley on November 16, 2021, still wanting to \navoid surgical intervention and had made some improvements. (Cl. Ex. 2, pp. 19-20)  The \nclaimant returned to Dr. Overley on February 8, 2022, prior to his surgery on February \n15, 2022.  The report provided that the conservative therapies had thus far only provided \nlimited  relief.    Two  (2)  types  of  surgeries  were  discussed.  (Cl.  Ex.  2, pp.  21-22)    The \nclaimant returned to Dr. Overley, following his post L5-S1 microdiscectomy on February \n15, 2022, and his postoperative wound irrigation and debridement  three (3) days later.  \nThe  report  provided  the  claimant  continued  to  have  a  resolution  of  his  pre-operative \nradicular symptoms but was still having post-operative back pain. (Cl. Ex. 2, pp. 23-24)   \nOn September 13, 2022, the claimant presented to Dr. Clay for his continued back \npain and his occasional left lower extremity pain.  He denied any new symptoms. (Cl. Ex. \n2, pp.  25-26)      A    report   of    the    surgery   on   February   15,    2022,    by    Dr.    Overely \nprovided   that   a   L4-5   hemilaminotomy,   foraminotomy,   and   microdiskecttomy was \n\nBURKS – H101400 \n \n11 \n \nperformed. (Cl. Ex. 2, pp. 27-29)  The claimant presented three (3) days later to UAMS, \ndue  to  a  severe  thecal  sac  compression.  (Cl.  Ex.  2, pp.  30-36)      The  MRI  report  of \nFebruary 25, 2021, provided multilevel disc degenerative changes in the lower thoracic \nand lumbar spine with disc extrusions at the L2-3, L3-4, with the L3-4 intervertebral discs, \nresulting in severe compromise of the passing right L4 nerve root and the exiting right L3 \nnerve root. (Cl. Ex. 2, pp. 37-39)  The CT of the lumbar spine, dated February 10, 2022, \nprovided multilevel disc bulging at L2-3, L3-4 and L4-5 was present with no moderate or \nsevere canal stenosis and mild to moderate bilateral foraminal stenosis at the L4-5 level. \n(Cl. Ex. 2, pp. 40-41)  Claimant’s final report was an MRI dated July 5, 2022.  The report \nprovided  congenital  spinal  canal  stenosis  was  most  pronounced  at  L2-3,  appearing \nmoderate with multilevel retrolisthesis. In addition, the report provided for  an interval L4 \nleft  hemilaminotomy  with a granulation of  tissue  in  the  surgical  bed  that  partially \nsurrounded the descending left L5 nerve root. There was a possible seroma adjacent to \nthe L4 spinous process. (Cl. Ex. 2, pp. 42-43) \nThe  respondents  also  submitted  one  hundred  fourteen  (114)  pages  of  medical \nrecords that were admitted without objections.  Many of these medical records were also \nintroduced by the claimant.  The claimant originally presented to MedExpress on January \n27, 2021, stating he injured his back while picking up one hundred 100 pound batteries. \n(Resp.  Ex.  1, pp.  1-3)    The  claimant  returned  on  February  2,  2021,  with  continued \nconstant back pain. (Resp. Ex. 1, pp. 4-6)  Progress notes dated April 19, 2021, provided \nfor  epidural  steroid  injections  by  Dr.  Gregory  Smith on the  right  side of L3-4  and L4-5. \n(Resp. Ex. 1, pp. 19-22)  The claimant then presented to Dr. Gary Bowman on April 30, \n2021, due to his history of strokes to obtain clearance for his lower back surgery.  The \n\nBURKS – H101400 \n \n12 \n \nreport recommended a further evaluation by cardiology and possibly neurology so that a \nsafe elective surgery could be performed.  (Resp. Ex. 1, pp. 25-28)  The claimant received \na  transforaminal  epidural  steroid  injection  on  June  1,  2021,  and  July  27,  2021,  by  Dr. \nSheffield Kent. (Resp. Ex. 1, pp. 35, 40, 41)  In addition, the claimant received bilateral \nL4-5  facet  joint  blocks  on  August  3,  and  August  21,  2021,  by  Dr.  Kent.  (Resp. \nEx.  1, pp.  42-45)  The  claimant  received  an  additional  transforaminal  epidural  steroid \ninjection on the left side of L5-S1 on October 12, 2021, again by Dr. Kent. (Resp. Ex. 1, \npp.  48-49)  Dr.  Kent  provided  the  claimant  a  bilateral  sacroiliac  joint  corticosteroid \ninjection on August 9, 2022. (Resp. Ex. 1, pp. 73-74)  On September 2, 2022,  the claimant \nreceived pain management by Desiree Herman who opined the claimant would be a good \ncandidate  for  a  spinal  cord  stimulator.  (Resp.  Ex.  1,  pp. 75-77)    The  claimant  was \ndischarged  from  physical  therapy  on  September  14,  2022,  with  the  report  provided  by \nDarren  Beckham,  DPT,  PT.  (Resp. Ex. 1, pp. 80-81)  The  claimant  then  returned  for \na caudal  epidural  steroid  injection  by  Dr.  Kent  on  September  15,  2022.  (Resp. Ex. \n1, pp. 84-85)   \nThe respondents also submitted twenty-three (23) pages of correspondence and \nforms  without  objection.    A  letter  from  the  Arkansas  Department  of  Agriculture  and \naddressed  to  the  claimant  provided  that  the  FCE  indicated  he  would, “not  be  able  to \nperform essential  functions  of  your  job.”    The  letter  also  provided  if  the  claimant  was \nrequesting  an  accommodation  to  continue  his  employment  with  the  Department,  he \nshould let them know within ten (10) days or they will have to terminate his employment. \n(Resp. Ex. 2, p.7) \n\nBURKS – H101400 \n \n13 \n \nThe Vocational Rehabilitation Initial Evaluation provided the claimant possessed \ntransferable skills due to his knowledge of tools, machines, and methods used in trades \nor  craft  specialties,  and  he  could  use  these  skills  in  regard  to  reading  and  reviewing \ndrawings  or  blueprints,  with  the  ability  to  use  shop  math,  hand  tools,  or  machines  in \nconstructing    or    making    and    repairing    objects    and    adhering    to    specifications    or \nstandards.   The  report  also  stated  the  claimant  possessed  a  “great  work  history.”  \n(Resp. Ex. 2, pp. 14-15)   \nThe Department of Agriculture mailed a termination of employment to the claimant \ndated December 20, 2022, which provided the claimant had reached maximum medical \nimprovement, had met with his supervisor,  and had asked if he could just perform light \nduty  tasks  associated with  mechanic  work.  The  letter  went on  to provide, “there  is  no \nlight heavy equipment mechanic position, and one cannot be created for you.”  You were \noffered the opportunity to review a list of other job options within the Department, and you \ndeclined. (Resp. Ex. 2, p.17)  Finally, a Vocational Rehabilitation Progress Report was \nintroduced  that  provided  the  claimant  qualified  for  repetitive  bench  or  line  assembly \noperations  to  mass-produced  products,  a  car  wash  attendant,  an  electrical assembler, \nand an inspector of motor vehicles making up to $20.00 an hour depending on the job \nobtained. (Resp. 2, pp.19-21)       \nDISCUSION AND ADJUDICATION OF ISSUES \nThe claimant has the burden of proving, by a preponderance of the evidence, that \nhe is entitled to compensation benefits under the Arkansas Workers’ Compensation Law.  \nIn determining whether the claimant has sustained the burden of proof, the Commission \nshall weigh the evidence impartially, without giving the benefit of the doubt to either party.  \n\nBURKS – H101400 \n \n14 \n \nArk. Code Ann. §11-9-704.  Wade v. Mr. Cavananugh’s, 298 Ark. 364, 768 S.W. 2d 521 \n(1989).  Further, the Commission has the duty to translate evidence on all issues before \nit into findings of fact.  Weldon v. Pierce Brothers Construction Co., 54 Ark. App. 344, 925 \nS.W.2d 179 (1996). \n‘Permanent  benefits  shall  be  awarded  only  upon  a  determination  that  the \ncompensable injury was the major cause of the disability or impairment.”  Ark. Code Ann. \n§11-9-102(4) (F) (ii) (a).  Here the claimant’s back injury was accepted as compensable.  \nWage-loss is the extent to which a compensable injury has affected the claimant’s ability \nto earn a livelihood.  Taggart v. Mid. Am. Packaging, 2009 Ark. App. 335, 308 S.W.3d \n647.    In  considering  claims  for  permanent  partial  disability  benefits  in  excess  of  the \nemployee’s percentage of permanent physical impairment, the Commission may take into \naccount, in addition to the percentage of permanent physical impairment, such factors as \nthe employee’s age, education, work experience, and other matters reasonably expected \nto affect his or her future earning capacity. Ark. Code Ann. §11–9–522(b)(1).  There are \nother  matters  to  be  considered  as  well:  motivation,  post  injury  income,  credibility  and \ndemeanor, among other factors.  See Taggart supra.  Also see Glass v. Edens, 233 Ark. \n786, 346 S.W.2d 685 (1961); Oller v. Champion Parts Rebuilders, 5 Ark. App. 307, 635 \nS.W.2d  276  (1982);   Hope  School  District  v.  Charles  Wilson,  2011  Ark.  App. 219,  382 \nS.W.3d 782 (2011).   \nWage-loss  is  the  degree  to  which  the  compensable  injury  has  affected  the \nclaimant’s  earning  capacity.    The  extent  of  disability  is  a  question  of  fact  for  the \nCommission.  Cross v. Crawford County Memorial Hospital, 54 Ark. App 130, 923 S.W.2d \n886 (1996).  The Commission is charged with assessing wage-loss on a case by case \n\nBURKS – H101400 \n \n15 \n \nbasis.  The award of wage-loss is not a mathematical formula but a judicial determination \nbased   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).  \nPursuant to Ark. Code Ann. § 11-9-522(b)(1), when a claimant has an impairment \nrating to the body as a whole, the Commission has the authority to increase the disability \nrating  based  upon  wage-loss  factors.    The  wage-loss  factor  is  the  extent  to  which  a \ncompensable  injury  has  affected the  claimant’s  ability  to  earn  a  livelihood.   Emerson \nElectric v. Gaston, 75 Ark. App.232, 58 S.W.3d 848 (2001).  Objective and measurable \nphysical findings which are necessary to support a determination of “physical impairment” \nor  anatomical  disability  are  not  necessary  to  support  a  determination  of  wage-loss. \nArkansas Methodist v. Adams, 43 Ark. App. 1, 858 S.W.2d (1993).  \nIn the present matter, we have a claimant who was over fifty-nine (59) years of age \nat the time of the hearing and a high school graduate.  He had obtained a journeyman’s \nelectrician license in California but the license would not transfer to Arkansas when he \nmoved.  He obtained his CDL and had maintained it.  He worked and obtained a variety \nof  certificates  from  classes  through  his  work  to  improve  his  situation.    He  sought \nconservative treatment until it became clear he was going to be required to have surgery \nin order to return to work.  He has a history of a good work ethic that was even noted by \none of his treating physicians, Dr. Roman.  He has worked his entire life in occupations \nthat  required  physical  labor  and  has  never  worked  a  “desk  job.”   He  stated, “I  plan  on \nworking somewhere, someway, somehow.  That’s my goal.”  His motivation to return to \nwork is believable.  He was assigned a ten percent (10%) whole-body impairment rating \nwhich was confirmed by a second physician.   \n\nBURKS – H101400 \n \n16 \n \nIt is noted that he did drive by himself to Illinois for a family matter, but he was not \non a schedule like a driver who was employed to get to a destination at a set time.  He \ncurrently has difficulty standing or sitting for a period of time and his testimony in regard \nto  this is  believable.    The  Functional  Capacity  Evaluation  provided  the  claimant  could \nreturn to work in the light classification of physical demands and that he demonstrated \nthe  ability  to  perform  stooping,  crouching,  climbing  stairs,  push  and  pull  a  cart,  and \nkneeling occasionally. “He exhibited limitations with the ability to perform an occasional \nbi-manual lift/carry of up to twenty pounds.”   \nBased upon the above findings and the claimant being placed in the category of \nlight duty, and after reviewing the evidence impartially,  it is found that the claimant has \nsatisfied his burden of proof, by a preponderance of the evidence, that he is entitled to a \nten  percent  (10%)  wage-loss  determination  in  addition  to  his  anatomical  impairment \nrating, plus attorney fees pursuant to Ark.Code Ann. §11-9-715. \nIf not already paid, the respondents are ordered to pay the cost of the transcript \nforthwith. \nIT IS SO ORDERED.   \n  \n       ___________________________ \n      JAMES D. KENNEDY \n      Administrative Law Judge","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H101400 PHILLIP L. BURKS, EMPLOYEE CLAIMANT VS. ARKANSAS FORESTRY COMMISSION, EMPLOYER RESPONDENT PUBLIC EMPLOYEE CLAIMS DIVISION ARKANSAS INSURANCE DEPARTMENT RESPONDENT OPINION FILED FEBRUARY 14, 2023 Hearing before Administrative Law Judge, James D. Kenn...","fetched_at":"2026-05-19T23:10:20.410Z","links":{"html":"/opinions/alj-H101400-2023-02-14","pdf":"https://labor.arkansas.gov/wp-content/uploads//BURKS_PHILLIP_H101400_20230214.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}