{"id":"alj-H105339-2023-02-06","awcc_number":"H105339","decision_date":"2023-02-06","opinion_type":"alj","claimant_name":"Darrell Hamilton","employer_name":"Cooper Tire & Rubber Company","title":"HAMILTON VS. COOPER TIRE & RUBBER COMPANY AWCC# H105339 FEBRUARY 6, 2023","outcome":"granted","outcome_keywords":["granted:4"],"injury_keywords":["back","thoracic","repetitive","lumbar"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/HAMILTON_DARRELL_H105339_20230206.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"HAMILTON_DARRELL_H105339_20230206.pdf","text_length":48258,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nWCC NO.:H105339 \n \nDARRELL HAMILTON, EMPLOYEE CLAIMANT \n \nCOOPER TIRE & RUBBER COMPANY,   \nEMPLOYER                                                                                                               RESPONDENT    \n                                       \nCENTRAL ADJUSTMENT COMPANY, INC., \nINSURANCE CARRIER/THIRD PARTY ADMINISTRATOR \n(TPA)                                                                                                          RESPONDENT  \n \n \nOPINION FILED FEBRUARY 6, 2023 \n        \nHearing  held  before  Administrative  Law  Judge  Chandra  L.  Black, in  Texarkana,  Miller \nCounty, Arkansas. \n \nClaimant represented by Mr. Paul Miller, Attorney at Law, Texarkana, Texas. \n \nRespondents  represented  by  Ms.  Karen  H.  McKinney,  Attorney  at  Law,  Little  Rock, \nArkansas. \n \n       Statement of the Case \n \nOn  November  8,  2022,  the  above-captioned  claim  came  on  for  a  hearing in \nTexarkana, Arkansas.  Previously, a prehearing telephone conference was conducted in \nthis matter on August 16, 2022.  Following said telephone conference, a Prehearing Order \nwas  entered  that  same  day.    I  have  marked  the  order,  and  the respective  prehearing \nfilings of the parties as Commission’s Exhibit 1 without any objection from either of the \nparties. \nStipulations \nDuring  the  prehearing  telephone  conference  and/or  at  the  hearing,  the  parties \nagreed to certain stipulations.  I hereby accept the following proposed stipulations as fact:  \n\nHamilton – H105339  \n2 \n \n1. That the employee-employer/self-insured employer relationship existed at \nall  relevant  times,  including  on  or  about  February  27,  2021\n1\n,  when  the \nClaimant sustained an admittedly compensable injury to his mid-back. \n \n2. On  October  14,  2021  the  Claimant  underwent  a  Functional  Capacity \nEvaluation (FCE) and was found to be capable of performing work in the \nMEDIUM classification of work as defined by the US Dept. of Labor’s \nguidelines over the course of a normal 8-hour workday with certain physical \nlimitations. \n \n3. The Claimant’s average weekly wage (AWW) on the day of his work-related \naccidental injury was $1,179.00.  His weekly indemnity rate is $736.00 for \ntemporary  total  disability  (TTD)  compensation,  and  $552.00  is  his  weekly \nindemnity rate for permanent partial disability (PPD). \n \n4. On  May  18,  2022,  Dr.  Reza  Shahim  assessed  the  Claimant  a  3% \npermanent  impairment  rating  for  his  back  injury.  The  Respondents  have \naccepted said rating and are paying it or paid it in full.  \n \n5. All issues not litigated herein are reserved under the Arkansas Workers’ \nCompensation Act. \nIssues \n The parties agreed to litigate the following issues:  \n1. Whether  the  Claimant is  entitled  to  wage  loss  disability  for  his  admittedly \ncompensable back injury of February 27, 2021.  \n \n 2. Whether the Claimant’s attorney is entitled to a controverted attorney’s fee. \n \nContentions \n \n The respective contentions of the parties are as follows: \n \nClaimant:  \nMr.  Hamilton  incurred an  on-the-job  injury  to  his  back  while  working  as a \nmixer operator.  As a result of his injury, Hamilton now works in Sort and Palletize \n \n1\n In the hearing transcript, the date of injury is incorrectly stated on page 5.  The correct \ndate of injury is February 27, 2021, and not February 21, 2021.   \n\nHamilton – H105339  \n3 \n \nand has sustained a wage loss.  Mr. Hamilton is entitled to wage loss benefits due \nto the drop in his hourly wage average from $28.00 per hour to $17.50 per hour. \nRespondents:  \n Respondents contend that the Claimant has been released to return to work in a \nMedium  Duty  capacity  and  he  has  returned  to  work  for  Respondents.    Respondents \nfurther contend that the Claimant is capable of working and earning the same or greater \nwages that he earned at the time of his injury and therefore has not sustained any wage \nloss disability. \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n \nAfter  reviewing  the  record  as  a  whole,  including  the  medical  reports,  the \ndocuments, and all other matters properly before the Commission, and after having had \nan  opportunity  to  hear  the  testimony  of  the  witnesses,  and  observe  their  demeanor,  I \nhereby make the following findings of fact and conclusions of law in accordance with Ark. \nCode Ann. §11-9-704 (Repl. 2012): \n1. The Arkansas Workers’ Compensation Commission has jurisdiction over this  \n      claim. \n \n2.  The  stipulations  set  forth  above  are  reasonable  and  have  been  accepted  as \nfact. \n \n3.  The  evidence  preponderates  that  the  Claimant  sustained  a  7%  wage  loss \ndisability  over  and  above  his  3%  permanent  anatomical  impairment,  which \nresulted due to his compensable mid-back injury of February 27, 2021. \n \n4.  The   Respondents   have   controverted   this   claim   for   additional   benefits.  \nTherefore,  the Claimant’s attorney is entitled to a controverted attorney’s fee \non the indemnity benefits awarded herein.  \n \n5.  All  issues not  litigated  herein  are  reserved  under  the  Arkansas  Workers’ \nCompensation Act.      \n  \n \n\nHamilton – H105339  \n4 \n \nSummary of Evidence \nThe Claimant, Mr. Darrell Hamilton, testified in his own behalf during the hearing.   \nMr. Toney Thompson also testified on behalf of the Claimant.   \n           The record consists of the hearing transcript of November 8, 2022, and the exhibits \ncontained therein.  Specifically, the evidentiary record includes Commission’s Exhibit 1; \nthe Claimant’s Medical Exhibits consisting of 28 numbered pages was marked Claimant’s \nExhibit  1; Claimant’s  Non-medical  Exhibits  comprising of  19  numbered  pages  was \nmarked Claimant’s Exhibit 2; Respondents introduced into evidence 18 pages of Medical \nRecords,  have  been  marked Respondents’ Exhibit 1; and their Non-medical  Records \nentailing 53 numbered pages were labeled Respondents’ Exhibit 2. \nHearing Testimony \n \nDarrell Hamilton \n \nThe Claimant, age 37, is a high school graduate.  Afterward in 2009, the Claimant \nattended  a  local  community  college,  and  obtained a technical  certificate  in  auto \nmechanics.   The Claimant began working for Cooper Tire and Rubber Company around \n2015  or  2016.    He  initially  worked  performing  employment  duties  for  the  respondent-\nemployer in the mixing department.  The highest position that  the  Claimant held within \nthat department was, mixer operator.  His primary employment duties  as a mixer operator \nincluded mixing rubber and compound.  The Claimant worked in that position for over five \nyears.    \nHe  confirmed  that  on  February  27,  2021  the  day  of  his  work-related  injury, he \nsustained a compensable injury to the left side of his back while performing employment \nduties for the Respondents.  Per the medical records, the Claimant sustained an injury to \n\nHamilton – H105339  \n5 \n \nthe mid-back of the thoracic area.  The Claimant confirmed that the source of his problems \nto  date  continues  to  be  in  that  particular  area  of  his  spine.  He  agreed  that  the \nRespondents/Cooper Tire accepted his injury as compensable and paid benefits to and \non his behalf, including a 3% permanent impairment rating for his mid-back.  According \nto the Claimant, he decided against back surgery because he believed he was better off \nwithout any type of surgical intervention. \nThe Claimant confirmed that he underwent a Functional Capacity Evaluation (FCE) \nand  was  found  to  have  physical  restrictions  and  limitations.    He  was  released  from \nmedical care for his back injury on May 18, 2022.  At that time, the Claimant’s treating \nphysician  instructed  him  to  continue  with  his  current  FCE  restrictions.    Per  his  FCE \nrestrictions, the Claimant’s lifting limitation is 40 pounds.  He can occasionally carry 35 \npounds, and frequently lift 20 pounds.  Additionally, the Claimant has the ability to only \noccasionally push and pull . He confirmed that his employer has provided him a job within \nhis  restrictions.    Specifically,  the  Claimant  testified  that  pushing,  pulling,  repetitively \nbending  and  twisting  cause  his mid-back  to “hurt  really  bad.”    The Claimant  confirmed \nthat the above-mentioned restrictions have been  permanently placed on him.  \nUnder  further  questioning,  the  Claimant  specifically  confirmed  that  as  a  mixer \noperator,  he  made “good  money.”  However,  now  the  Claimant  is  prevented  from \nreturning  to  work in  that  position  because  of  his  physical  restrictions  of  being  able  to \noccasionally lift up to 40 pounds.  According  to the Claimant, while working as a mixer \noperator, he had to lift and load numerous bags of compound that weighed from 40 to 60 \npounds during his entire shift.  The Claimant stated that he is also precluded from working \nas mixer operator due to his restrictions relating to bending, twisting, pushing, and pulling.          \n\nHamilton – H105339  \n6 \n \nThe  Claimant  verified  that  he  worked  with  his  union  representative and  Cooper \nTire  to  find  a  job  within  the  plant that  was  suitable  for  his  restrictions.    Ultimately,  they \ntransferred  the Claimant to work as a sort and palletize operator.  In that particular area, \nthe Claimant is responsible for sorting the tires and putting the proper labels on them.  He \nhas performed that job for  nearly a year.  The Claimant admitted that his  current job is \nsuitable work for his restrictions.  However, the Claimant denied that his current job pays \nas much as the mixer operator work.    \nHe  acknowledged  that  his  employer  introduced  into  evidence  records  showing \nsome  other  jobs  such  as  a  salesperson  for  Frito-Lay,  and  a  worker  for  an  insurance \ncompany.  However, the Claimant confirmed that he does not know if he can do those \njobs  given  his  limitations.    The  Claimant  essentially  testified  that  he  has  the  functional \nability to do some limited bending and twisting.  According to the Claimant, he can perform \nthe  sort and palletize  job  and  stay  within  his  restrictions.    He  admitted  that he  has  not \nlooked for jobs outside of Cooper Tire and tried to figure out whether they were within  his \nphysical  restrictions.  The  Claimant  essentially  confirmed  that  he  develops  certain \nseniority at Cooper Tire, and that is a helpful thing in acquiring promotions.     \nNext, the Claimant was asked to turn his focus to the difference in the pay that he \nmade as a mixer operator as opposed to working in the sort and palletize position.  The \nClaimant was shown a copy of Claimant’s Exhibit 2, which is the first page of his 2019 \nfederal income tax return.  He confirmed that his income is the only income reflected on \nthat document.  He agreed that this document shows that in 2019, he worked as a mixer \noperator at Cooper Tire and his total gross pay was $55,290.00.  The Claimant further \nagreed that the next page of the exhibit shows his 2020 federal tax return.  He confirmed \n\nHamilton – H105339  \n7 \n \nthat  this  document  shows  that  he  earned  $46,859.00  in  2020,  working  as  a mixer \noperator.  However, the Claimant confirmed that although he got hurt in February 2021, \nhe was still classified as a mixer operator.  The Claimant’s union contract guaranteed him \n85% of his average income.   \nSubsequently, in November 2021, the Claimant moved  to his current position in \nsort and palletize.  The Claimant confirmed that given the change of jobs and the 85% \nguarantee,  his  total  income  reflected at  page  3  for  tax  year  2021  was  $42,679.00.  \nAdditionally,    the  Claimant  further  confirmed  that  he  has  spent  the  entire  year  of  2022 \nworking in sort and palletize.  The Claimant testified that as of November 4, 2022 he has \nmade $32,604.00.  For the entire year of 2022, the Claimant estimated his annual income \nfor the year to be $38,632.00.  He confirmed that this is substantially less than what he \nmade  as  a  mixer  operator.    The  Claimant  agreed  that  the  pay  rates  and averages  at \nCooper Tire are confusing to work through.  Therefore, the Claimant relied on his union \nrepresentative  to  help  him  calculate  and  understand  things  such  as  the  averages and \ndifferent segments of pay.  \nClaimant’s attorney introduced into evidence some of the Claimant’s actual payroll \nrecords including a stub that breaks out his pay.  Specifically, Claimant’s Exhibit 2, pages \nfour through 11 show seven consecutive pay periods, and each one has an average.  Per \nthis document, on September 18, 2020 the Claimant’s actual pay average was $26.90.  \nHowever, the Claimant agreed that this paystub has some overtime and holiday pay listed \non it.  For the week of September 25, 2020 the Claimant’s average pay was $29.03.  He \nconfirmed  that  the  pay  records  introduced  into  evidence  accurately  reflect  his  pay \naverages.  \n\nHamilton – H105339  \n8 \n \nThe Claimant confirmed that his other paystubs show that in July 2022, he worked \nin  the  sort  and  palletize  job.    His  initial  regular  pay  average  was  $20.14.  Yet  another \ndocument of record demonstrates the Claimant’s average hourly rate of pay while working \nin  sort  and  palletize  was  $18.94. Given the Claimant’s current averages of pay, he \nconfirmed that he is asking for an award of wage loss disability benefits based upon the \ndifference in pay of what he earned as a mixer operator prior to his injury as compared to \nwhat he now earns from working as a sort and palletize operator.     \nOn cross-examination, the Claimant confirmed that he graduated from high school \nin  2005.    He  admitted  that  he  is  able  to  read  and  write, and  do  math.  The  Claimant \nconfirmed that he has effective communication  skills.  He verified that  prior to going to \nwork  for  Cooper  Tire  in  2016,  he  worked  for  SERVPRO,  which  is  a  water  restoration \ncompany.  According to the Claimant, his employment duties there entailed fire and water \ncleanups. His hourly rate of pay was $15.00.  After the Claimant received his certification \nin auto mechanics, he began working as an auto mechanic.  The Claimant confirmed that \nhe removed motors, transmissions, and starters from vehicles, along with other similar \nactivities associated with auto repair and upkeep. \nRegarding his work at Cooper Tire, the Claimant  initially performed employment \ndutiies as a mixer operator utility worker.  Subsequently, the Claimant was promoted to \nthe position of mixer operator.  The Claimant admitted that he is trainable and that he can \nmove up in the job he is doing now.  He denied that as a mixer operator, a lift assist was \nmade available to him to help with the lifting of the hundred-pound bags.  The Claimant \nfurther denied that he could ask for help with the lifting.  According to the Claimant, he \ncomplained to the union reps about the lack of lift assists.        \n\nHamilton – H105339  \n9 \n \nWith  respect  to  the Claimant’s  February  2021  compensable  back  injury,  he \nconfirmed that he was injured while removing rubber from a ram flapper door when his \ninjury   happened.      The   Claimant   confirmed   that   when  he   reported  his   injury   to \nmanagement,  Cooper  Tire  accepted  it  and  sent  him  for  medical  treatment.  He  initially \nsought  medical  treatment  for  his  injury  from  Healthcare  Express.    The  Claimant  was \nevaluated by Dr. Calhoun, a neurosurgeon in, North Little Rock.   He confirmed that Dr. \nCalhoun talked to him about what was going on with his back and released him back to \nfull  duty  work.  The  Claimant  essentially  testified  that  management  instructed  him to \ncontinue doing light duty work until he underwent his FCE.   According to the Claimant, \nmanagement did not allow him to work as a mixer operator.  The Claimant testified that \nCooper Tire changed his classification in July 2021, after Dr. Calhoun returned him to full \nduty work. \nHowever, the Claimant was shown documents of record proving that when he first \nwent to work for Cooper Tire in April 2016, he was a mixing room utility.  He confirmed \nthat  other  documents  show  that  he  worked  as  a  mixer  operator,  beginning  May 2017 \ncontinuing until April 25, 2020.  He admitted that another document of record shows the \nnext change of employment duties for him occurred on November 19, 2021,  and he went \nto  work  as  a  sort  and  palletize  operator,  which  was  after  his  October  2021 FCE.    The \nClaimant finally admitted that these documents are correct.  However,  the Claimant went \non to explain that he was sent to work in another department, but they did not change his \nclassification until after his FCE.  He maintained that after his FCE, Cooper Tire took it \nupon  themselves  to  change  his  classification  to  another  position,  but  not  the  sort  and \n\nHamilton – H105339  \n10 \n \npalletize  operator  position.  However,  the  Claimant admitted that  he  does not  have  any \npayroll stubs or job change information to verify his testimony in this regard. \nThe Claimant confirmed that he obtained a change of physician to treat with Dr. \nShahim after his release to full duty by Dr. Calhoun.  The Claimant verified that Dr. Shahim \nperformed some injections, and it was determined that the shots were not providing him \nwith any  long-term relief.  He agreed that in May 2022, Dr. Shahim stopped those and \nplaced him at maximum medical improvement.  At that time, Dr. Shahim assessed  the \nClaimant  with  a  3%  impairment  rating  for  his  back  injury.    The  Claimant  admitted  that \nCooper Tire paid him for the 3% rating.   \nFollowing the Claimant’s release to permanent work status by Dr. Shahim in May \n2022, he  admitted that he has not had any  future medical treatment for his back since \nthat  time.  He confirmed that no doctor has removed or excused him from work because \nof his back since May of 2022. \nThe Claimant was shown some of his payroll stubs. He agreed that some of these \npaystubs show that after he reached maximum medical improvement by Dr. Shahim, he \nworked  as  a  sort  and  palletize  operator  and  averaged  at  times, up to  $20.00  an  hour, \nparticularly for the week ending May 27, 2022. The Claimant admitted that Respondents’ \nExhibit No. 2, at page one shows that  he averaged $19.54 for the week of October 21, \n2022.  He agreed that he does not have a set average weekly wage that shows up on his \npay stubs. The Claimant further agreed that his pay is going to vary each week because \nof other factors that go into how much he earns.  Hence, the Claimant essentially agreed \nthat  while  working as  a  sort  and  palletize  operator,  he  does  not  have  the  exact  same  \nweekly wage due to other factors that go into what he earns for that particular week. The \n\nHamilton – H105339  \n11 \n \nattorney for Respondents showed the Claimant his pay stub of record for week beginning \nMay 21, 2022 and  ending May 27, 2022.  The Claimant agreed that this pay stub shows \nhe earned $1, 257.76 for that week.  For week June 4, 2022 through June 10, 2022 the \nClaimant’s  gross  paycheck of  $719.19.  The  Claimant  admitted  that  he  had  other \npaychecks showing rates of $20.16 and $19.98.      \nUnder further questioning, the Claimant admitted that he has taken paid time off, \nwhich  included  holiday  pay,  paid  vacation  leave,  and  FMLA.  However,  the  Claimant \nmaintained  that  since  May  2022,  he  has  taken  FMLA due  to  his  back  injury.    Yet,  the \nClaimant admitted that he did not present any documentation to Cooper Tire showing that \nthe FMLA he has taken was due to his back injury.  The Claimant maintained that he told  \nmanagement that he has blood pressure problems due to his back injury.  In this regard, \nthe Claimant admitted that he did not present any evidence stating that he was unable to \nwork because of back pain and that he was missing hours at work because of his back \ninjury. \nNext, the Claimant was shown pages one through three of his functional capacity \nevaluation.  The Claimant confirmed that page two of that document lists the activities he \ncan do.   He agreed that he can frequently walk at work.  The Claimant further confirmed \nthat  throughout  this  evaluation,  he  was  assessed  to  have  normal  balance.    Per  this \nevaluation, the Claimant can occasionally stoop, and frequently crouch, kneel and climb \nstairs.    He  also  showed  the  ability  to  occasionally  push  and  pull  a  cart.   The  Claimant \nagreed that he can constantly reach with his hands according to this document.  Also, per \nthis evaluation, the Claimant demonstrated the ability to frequently reach overhead, and \ncould do constant finger handling of things.  He admitted that he can constantly stand and \n\nHamilton – H105339  \n12 \n \nsit.  The Claimant confirmed he was released to work in the medium  duty capacity with \nthe limitation of being able to occasionally lift up to 40 pounds. \nHe  confirmed  he  has  not  ever  looked  for  work  outside  of  Cooper  Tire.    The \nClaimant agreed that in today’s economy, there are job openings about everywhere you \nlook.  However, the Claimant admitted that he does not know if he could make more if he \nleft his employment with Cooper Tire because he has not looked for any work outside of \nthe company.  \n Counsel  for  the  Respondents  referred  the  Claimant  to  a  list  of  jobs  for  the \nTexarkana  area  that  she  found on her  search  of  internet.    Specifically, Respondents’ \nattorney showed the Claimant documents representing potential employment with Frito \nLay that pays $58,2000.00 a year.  The Claimant essentially stated that he does not know \nif he could perform the job based on the qualifications or physical requirements of  that \njob. He  confirmed that he has not inquired of anyone about the job. One of the physical \nrequirements of the job is that you be able to drive.  The Claimant admitted he is able to \ndrive,  but  he  stated  that  he  has  problems  with  blurry  vision  due  to  his  blood  pressure \nproblems.    However,  he  admitted  that  he  does  not  have  any  medical  documentation \nexcusing him from driving.  The Claimant maintained that he does not know if he could \nperform the Frito Lay job if he had to lift 40 pounds frequently with or without a reasonable \naccommodation.  However,  the  Claimant  admitted  that  he  holds  a  valid  unrestricted \ndriver’s license.  \n Other jobs found on the internet include that of a power locator, which pays up to \nan annual salary of $52,900.00.  The Claimant confirmed that the pay for this position is \nwhat he was making as a mixer operator.  He confirmed that he is able to enter energized \n\nHamilton – H105339  \n13 \n \nareas, which is one of the requirements for the power locator job.  T he Claimant admitted \nthat everything at Cooper Tire is energized equipment.  One of the other jobs was a plastic \ninjection molding technician, which pays up to $25.00 an hour.  The Claimant confirmed \nthat he could perform the 25-pound lifting requirement for this job.  He agreed that he is \nable  to  work  in  a  dirty,  dusty  and  noisy  environment.  The  other  job  listed  of record, \nincluded that of customer relations representative for an insurance company that showed \nno physical exertions for that position, except standing and walking.  The Claimant agreed \nthat he can operate a computer and engage in communication with people over the phone \nand in person.  However, the Claimant testified that he does not have any type of training \nfor that position although he did graduate from high school. \nThe Claimant agreed that he has gone to school and graduated.  He also agreed  \nthat he got his certification in auto mechanics.  He confirmed that he underwent training \nto become a mixer operator, and to work as a sort and palletize operator.  The Claimant \ndenied that he could not work as a sort and palletize lead because it would go against his \ncurrent restrictions.  According to the Claimant, in the lead position, he would not be able \nto pick the tires out and get into the machinery, nor would he be able to move the pallets.   \nNext, the Claimant was shown a copy of the job description for his current job as \na sort and palletize operator introduced into evidence per Respondents’ Exhibit No. 2, at \npage  11.    Also,  included  in  that  exhibit  is  the  job  duties  for  the  lead  sort  and  palletize \nposition. One of the job duties listed for the operator position is to “Move tires that have \nfailed or no testing to the No-Read overflow conveyor.”  Although the Claimant admitted \nthat  you  have  to move tires in both positions, he explained, “Yes, but the Lead has a \nwhole different thing of moving tires.  Those tires can be up to almost a 100 pounds.”  He \n\nHamilton – H105339  \n14 \n \nalso  denied  he  could  work  as  a  lead  because  sometimes  they  do  not  have  the  right \namount of people to help the lead. The Claimant stated that if he took the lead position, \nhe could not do what they do as far as climbing on top of the conveyor belt.  However, \nthe Claimant admitted that on his FCE, it states that he  can climb, kneel, stoop, reach, \nstand and sit.  The Claimant continued to maintain for reasons discussed above that he \ncannot perform the work of a sort and palletize lead although the description of record \nindicates otherwise.  \nThe Claimant confirmed that he receives production bonuses in his current job of \nsort and palletize operator.  He agreed that his production bonuses are based on the work \nof the group, and not based upon his individual work.  The Claimant confirmed that he \nhas routinely gotten production bonuses since being in the sort and palletize as of May \n2022.   \nOn re-direct examination, the Claimant confirmed that his job in sort and palletize \nwas not one that was simply chosen by him.  Instead, the Claimant confirmed that Cooper \nTire assigned him the job after consultation with the safety people.  The Claimant agreed \nthe job was assigned to him because it was appropriate for his condition.   \nDr. Calhoun’s medical report of July 9, 2021 was made a part of the record.  After \nreviewing  the  report,  the  Claimant  confirmed  that  the  end  notes  state “no  repetitive \nbending, twisting, or lifting.”  The Claimant agreed that he avoids these activities because \nthey make his pain worse.   \nOn re-cross examination, the Claimant confirmed that Dr. Calhoun’s report does \nnot say “no” bending, twisting or lifting.”  Instead, it reads, “no repetitive”  bending, twisting, \nor lifting.” \n\nHamilton – H105339  \n15 \n \nTony Thompson                   \n Mr. Thompson was called as a witness on behalf of the Claimant.  He verified that \nas of the date of the hearing, he continued to be employed by Cooper Tire.  Mr. Thompson \nis  the  vice  president  of  the  union  at  Cooper  Tire.    Per  Mr.  Thompson’s testimony, he \nmanages  the  pension  funds,  insurance  policies,  and  matters  of  that  nature.    Mr. \nThompson confirmed that he took part in matters involving the Claimant at the time of his \ninjury, and during placement of him to a proper job.  Counsel for the Claimant asked Mr. \nThompson to explain how the Claimant ended up in the sort and palletize position in 2021.  \nIn  that  regard,  Mr.  Thompson  testified  that  when  an  employee  disqualifies  off a  job \nbecause of some kind of medical findings, upon receipt of permanent restrictions, they \npull them from that job and give them a list of jobs to choose from within their restrictions.  \nAccording to Mr. Thompson, the company presents the union with a list of jobs; and they \ngive the list to the employee with instructions for the employee to pick a job from the list.  \nMr. Thompson confirmed that the company and union followed this procedure with the \nClaimant’s placement into another job.  He verified that the Claimant’s job fits within the \nrestrictions of his functional capacity evaluation.      \nUnder further questioning, Mr. Thompson was asked to recite for the record, the \nsegments of pay for a worker in the sort and palletize job.  Mr. Thompson testified that \nthe  base  rate  of pay  for  the  sort and palletize  job  is  $15.62.    However,  Mr. Thompson \nexplained that a production bonus, a quality bonus, and a safety bonus, along with a wage \nincrease are added to the top of the average pay for all of the workers.  According to Mr. \nThompson, the wage increase for every job at the plant is $1.24 or 1.238.  He testified \nthat the Claimant’s absolute maximum hourly rate of pay  would be  about  $20.50  if  he \n\nHamilton – H105339  \n16 \n \nreceived  every  possible  bonus.    Mr.  Thompson  agreed  that  there  is  documentation  in \nevidence showing that the Claimant was earning an average of $18.94.  \nHe confirmed that this included all potential bonuses.  Mr. Thompson was shown another \ndocument of record proving that $33.64 was the absolute maximum the Claimant could \nearn as a  mixer operator.  \nUnder further questioning,  Mr. Thompson essentially agreed that there is nothing \nunusual about the sort and palletizing job having six different segments of pay added to \nthe workers’ average pay.  According to Mr. Thompson, basically every job at the plant is \naveraged out using this method.  \nOn cross-examination, Mr. Thompson confirmed that he stated that the absolute \nmaximum rate for S&P (sort and palletize) is about $20.50.  However, he agreed that a \nCooper Tire monthly report introduced into evidence shows that the highest pay is $20.69 \nfor the week of May 21 through May 27, 2022.  However, Mr. Thompson explained that \nhe testified that the Claimant’s highest pay was about $20.50, and that he low balled it a \nbit.   \nMr. Thompson agreed that the Claimant’s payroll records for May 21, 2022 through \nMay 27, 2022 show his rate as being $20.16 with all the add-ons.  He also agreed that \nthe Claimant has the potential to earn a little bit more.  \nRegarding other jobs, Mr. Thompson agreed that there are other jobs at Cooper \nTire  that  someone  could  perform  if  they  had  a  maximum  lifting  of 40  pounds.  Mr. \nThompson further agreed that there are a bunch of classifications in the bead room that \npay  quite  a bit.    He  further  agreed  that  these  jobs  are not  as physically  demanding  as \nsome of the other jobs at Cooper Tire.  Mr. Thompson confirmed that with the Claimant’s  \n\nHamilton – H105339  \n17 \n \nrestrictions, he could do the jobs in the bead room.   However, he confirmed that these \nare highly sought after jobs, and by contract you cannot just put the Claimant in any of \nthose jobs.  According to Mr. Thompson, the Claimant could go through the contract the \nright way of the bidding process and bid on one of the bead room jobs.  He confirmed that \nthe Claimant could bid on some of the jobs in the bead room and his restrictions would \nnot prevent him from doing some of these jobs.   \nHe testified that at Cooper Tire you have to go through the bidding process.  Mr. \nThompson testified that the Claimant could physically do his job, but he would have to \nrun  for  it  and get  elected.    According  to  Mr. Thompson,  his    job  is  chosen  every three \nyears and it pays more than $50,000 a year.  Mr. Thompson further agreed that there are \njobs at Cooper Tire that the Claimant can do and earn as much as he was earning in the \nMixing Room.  However, Mr. Thompson  testified that the Claimant has to bid for those \njobs when they come open. Mr. Thompson further testified that with the Claimant being \nthere no more than six years, he probably would not get the job.   \nMr. Thompson  testified: \nQ But  like  he  said,  he  loves  Cooper  Tire,  he  has  seniority  and  he  wants  to \nstay, so his capacity to earn wages is there, correct? \n \nA No, not to earn what he was making.  He didn’t  elect  to  go  to  that  job.  \nCooper Tire made him take that job.  \n \nOn re-direct examination, Mr. Thompson testified that most of the guys in the bead \nroom  jobs  have  twenty-five  (25)  to  thirty  (30)  years  with  Cooper  Tire.    Mr.  Thompson \nspecifically testified that these jobs are some of the premium jobs in the plant.                               \n \n \n\nHamilton – H105339  \n18 \n \nMedical Evidence \n A  review  of  the  medical  records  show  that  on  May  21,  2021,  the  Claimant \nunderwent  evaluation  by  Dr.  J.  Michael  Calhoun.    The  Claimant  presented  with  acute \nthoracic back pain since his February 28, 2021 back injury while working on a machine \nthat makes  rubber tires.   Per these  chart  notes,  the  Claimant  was evaluated  at  Urgent \nCare and started on physical therapy with no improvement.  Dr. Calhoun reported that an \nMRI obtained on April 21, 2021 showed a T8-9 disc protrusion with some lateral recess  \nstenosis on the left.  Also, these notes show that the Claimant underwent a lumbar MRI \nwhich showed some degenerative changes at L5-S1, but no neural impingement.  The \nClaimant  reported  that  his  pain  radiated  around  his  lateral  side  to  the  anterior  left \nabdomen.  The Claimant was given the choice of injections.  He elected to move forward \nwith the thoracic epidural steroid injections.  Dr. Calhoun continued the Claimant’ s work \nrestrictions of no lifting over 10 pounds and no repetitive bending, twisting, or lifting. \n The Claimant presented to Dr. Calhoun on July 9, 2021 with acute thoracic back \npain. According to this clinical note, the Claimant underwent a thoracic epidural injection \non June  18, 2021 with no improvement in his left radicular symptoms.  At that time, the \nClaimant had more mid-thoracic pain and some low back pain.  As a result, Dr. Calhoun \nrecommended nerve root blocks.  The Claimant decided to proceed with the blocks.  He \ncontinued the Claimant’s prior work light duty work restrictions.                   \nOn  October  14,  2021  the  Claimant  underwent  a  functional  capacity  evaluation.  \nThe examiner found that the results of this evaluation indicate that the Claimant put forth \na reliable effort, with 51 of 54 consistency measures within expected limits.  Most notably, \nanalysis of the data collected during this evaluation proves that the Claimant did put forth \n\nHamilton – H105339  \n19 \n \nconsistent  effort  and  passed  all  criteria  for  a  reliable  effort  indicating  that  a  significant \ndegree of effort was put forth. According to this assessment, the Claimant demonstrated \nlimited  lumbar  flexion  and  demonstrated  poor  tolerance  to  repetitive  and  sustained \nstooping  and  performed  these  activities  at  the  occasional  frequency  level.    His  other \nfunctional limitations demonstrated were with pushing/pulling a cart, as he was limited to \nthe occasional level for this activity as well.  However, the Claimant performed all other \nactivities at a level consistent with that of an average worker.  The Claimant demonstrated \nfunctional  limitations  during  his  evaluation,  which  included  the  ability  to  perform  an \noccasional bi-manual lift up to 40 pounds, and an occasional carry up to 35 pounds.  He \nalso  demonstrated  the  ability  to  frequently  lift  up  to  20  pounds.  Overall,  the  examiner \nconcluded  that  the  Claimant  demonstrated  the  ability  to  perform  work  in  the MEDIUM \nclassification as defined by the US Dept. of Labor’s guidelines over the course of a normal \n8-hour workday with limitations as noted above.      \nAn MRI of the Claimant’s thoracic spine was performed on March 10, 2022, with  \nthe following impression, “Multilevel degenerative disc disease. Small left paracentral disc \nprotrusions at T6-7 and T8-9.” \n On  May 18,  2022  the  Claimant  presented  to  Dr.  Reza  Shahim  for  follow-up  of \nthoracic spine pain on the second lumbar vertebrae.  Per this clinic note, the Claimant \nwas last seen on April 26, 2022, at which time he was given activity guidelines per his \ncurrent FCE restrictions.  Dr. Shahim reviewed the with Claimant  in detail his  previous \nMRI of the lumbar spine that revealed spondylosis with stenosis at L4-5 and T 6-7 and \nT9-10.    Treatment  options  were  also  explained  to  the  Claimant,  which  included spinal \ndecompression  surgery  with  risk  of  residual  weakness  and  numbness  that  may not \n\nHamilton – H105339  \n20 \n \nimprove. Alternatives to surgery were also given, which included continuing with spinal \ninjections, medications, and physical therapy.  The technical aspects of spinal injections \nwere explained to the Claimant,  including partial improvement, temporary improvement, \nand the need for repeat spinal injections.  At that time, Dr. Shahim assessed the Claimant \nwith “thoracic spine pain” for which he prescribed Lyrica twice a day.  The Claimant was \ndirected  by  Dr.  Shahim  to  return  to  work  the  next  day,  on  May  19,  2022 with  the \nrestrictions placed on him by the findings outlined in his FCE. Dr. Shahim’s wrote: \nImpression/Plan:  Patient  with  lumbar  pain,  we  have  discussed  in  detail  multiple \noptions  including  surgery  vs  conservative management.  Patient  has  a multilevel \nthoracic spondylosis mild lumbar spondylosis his impairment rating is 3% thoracic \ndisc protrusion not surgically treated. I think he is at MMI, and I would follow the \nfunctional capacity recommendations. I suspect he has degenerative disc disease \nand  osteoarthritis. He  really  has  not  responded  well  to  injections  well.  I  am \nreleasing him at this point since he is at MMI. I did have a long discussion with him \nthat he is not a surgical candidate and I do not believe further treatment will be of \nmuch benefit to him.           \n \n             Adjudication \nA.  Wage-Loss Disability   \n T he sole  issue for determination in this claim is whether the Claimant is entitled to \npermanent  partial  disability  benefits  in  excess  of  his  percentage  (3%)  of  permanent \nphysical impairment.   \nSpecifically,  in  a  nutshell,  the  Claimant  contends  that  he  sustained  wage-loss \ndisability,  over  and  above  his  3%  permanent  anatomical  impairment  resulting from  his \nadmittedly compensable back injury of February 27, 2021.  The Claimant contends that \nhis hourly rate of pay was reduced from $28.00 to $17.50 due to his back injury.  To the \ncontrary, the Respondents contend that the Claimant is capable of earning the same or \n\nHamilton – H105339  \n21 \n \ngreater wages that he earned at the time of his injury and therefore has not sustained any \nwage loss disability.        \n    When 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).   \n    In  considering  factors  that may  affect an employee's future  earning  capacity, the \nappellate  court  considers  the  Claimant's  motivation  to  return  to  work,  since  a  lack  of \ninterest or a negative attitude impedes an assessment of the Claimant's loss of earning \ncapacity.  Ellison v. Therma Tru, 71 Ark. App. 410, 30 S.W.3d 769 (2000).   \n However, so long as an employee, subsequent to his or her injury, has returned to \nwork, has obtained other employment, or has a bona fide and reasonably obtainable offer \nto be employed at wages equal to or greater than his or her average weekly wage at the \ntime of the accident, he or she shall not be entitled to permanent partial disability benefits \nin  excess  of  the  percentage  of  permanent  physical  impairment  established  by a \npreponderance   of   the   medical   testimony   and   evidence.   Ark.   Code   Ann.   §11-9-\n522(b)(2)(Repl. 2002). \n Here, the Claimant is relatively of a young age, he is 37 years of age.  He is a high \nschool graduate.  The Claimant has also obtained certification as an auto mechanic.  He \nhas a primary work history of performing heavy/laborious work activities before going to \nwork for Cooper Tire in 2016.  When the Claimant initially began working for Cooper Tire, \nhe  worked  in  the  Mixing  Department,  as  a  mixer  utility  worker.    Ultimately,  in  that \n\nHamilton – H105339  \n22 \n \ndepartment, the Claimant was promoted to a mixer operator job.  Both positions required \nheavy lifting.  But, at the time of his admittedly compensable back injury of February 27, \n2021, the Claimant worked as a mixer operator.  \nSpecifically, the Claimant sustained an admittedly compensable injury to his back \nwhile removing tire rubber from a machine on February 27, 2021.  The Claimant reported \nhis injury to management, and they provided  him with proper medical treatment for his \nback injury.  The Claimant underwent conservative care for his back injury, under the care \nof Drs. Calhoun and Shahim.  His medical care  for his back injury included light duty work \nrestrictions, a medication regimen, and injections.  These injections provided the Claimant \nwith no relief of his symptoms.  Therefore, they were discontinued, and the Claimant was \nreleased from medical care  by Dr. Shahim on May 18, 2022.  At that time, Dr. Shahim \nassessed  the  Claimant  with  a  3%  permanent  anatomical  impairment  to  the  body  as  a \nwhole for his compensable back injury.  The Respondents accepted and paid this rating. \nThe  Claimant  underwent  an  FCE  in  October  2021  with  reliable  results.    He \ndemonstrated the ability to perform the medium classifications of work of the course of a \nnormal  8-hour  workday  per  the  guidelines  of  the  US  Dept.  of  Labor’s guidelines.    The \nClaimant is permanently restricted to lifting up to 40 pounds, along with other restrictions \ndiscussed  above  in  full  detail.    These  are  permanent  work  restrictions  that  have  been \nplaced  on  the  Claimant  by  his  treating  physician  pursuant  to  the  findings  of  his  FCE.  \nSince  the  Claimant  performed  heavy  duty  work  activities  as  a  mixer  operated,  Cooper \nTire prohibited him from returning to work as a mixer operator due to these permanent \nrestrictions.  Therefore, after the Claimant was released pronounced to be at maximum \nmedical improvement and released from medical care, he collaborated with the company \n\nHamilton – H105339  \n23 \n \nand his union representative to find a job within his restrictions.  The Claimant currently \nworks as a sort and palletize operator. \nHis current maximum hourly rate of pay is  approximately $20.69 in his current job.  \nHowever, had the Claimant been able to continue working as a mixer operator, his current \nmaximum hourly rate of pay as of October 2022 would be $33.64.  Prior to his injury, the \nClaimant  earned $55,290 for  tax  year  2019,  performing employment  duties  as a mixer \noperator.  During tax year 2020, the Claimant earned  $46,859, which was during the time \nhe  got  hurt.  He  estimated  his  annual  salary  for  2022  in  his  current  position  is  \napproximately $38,632. \nWhile  the  Claimant  has  not  looked  for  work  outside  of  Cooper  Tire,  he  worked \ndiligently  with  the  company  and  his  union  representative  to  find  a  job within  his \nrestrictions. His testimony demonstrates that he likes working for the Cooper Tire and he \nhas accumulated some seniority  with the company.  Moreover, the Claimant can make \nmore money in the future via the union contract bidding process, but given his seniority \nof only six years, and with his restrictions, he will be significantly limited to what he can \nearn in the future. Mr. Thompson’s and the Claimant’s testimony led me to this conclusion, \nalong  with  the  medical  opinions  relating  to  his  of  his  permanent  restrictions.  Of  note,  I \nfound that Mr. Thompson to be an extremely credible witness.  \nHence, the evidence demonstrates that the Claimant has successfully returned to \nwork  within  his  restrictions  at  Cooper  Tire.  Mr. Thompson’s testimony proves that the  \nClaimant  was  given  a  list  of  jobs  to  choose  from  and  he  chose  the  sort and  palletize \noperator position.  Under these circumstances, I do not find that the Claimant’s decision \n\nHamilton – H105339  \n24 \n \nto look for work exclusively at Cooper Tire impedes an assessment of the Claimant's loss \nof earning capacity.   \nI do note that the Claimant has been restricted to medium duty work.  Most of the \njobs at Cooper Tire within the Claimant’s reach require heavy duty work restrictions.  The \nClaimant has the potential to make more money than he is currently making.  However, \nthe  Claimant  has  suffered  a  decrease  in  his    wage-earning  capacity  because  he  is \nprecluded from returning to work in his job as a mixer operator and other similarly paying \njobs,  which  require a  heavy-duty  work  capacity.    He  is  now  permanently  restricted  to \nworking in a medium duty capacity.  His testimony demonstrates that he continues with \nback pain duty to his compensable injury. I found the Claimant to be a credible witness in \nthis regard.      \nBased  on  the  Claimant’s relatively  young age,  limited  education  and  work \nexperience,  permanent    work  restrictions  of  medium  duty,  his  prior  work  having  been \nheavy duty capacity, the nature and extent of his injury and impairment, his post-injury \nearning, and all other matters probably before the Commission, I find that the Claimant \nsuffered a 7% impairment to his wage earning capacity in excess of his 3% permanent \nanatomical impairment.    \nI recognize that the Claimant was presented with potential jobs in the Texarkana \narea that paid about the same or greater wages that he earned while working as a mixer \noperator.  However, these jobs were only possibilities and hypotheticals, as there is no \nevidence whatsoever of the Claimant having received a bona fide job offer to be employed \nat wages equal to or greater than his wages at the time of his accident.  Moreover, there \nis no evidence demonstrating with any certainty the Claimant would have started out on \n\nHamilton – H105339  \n25 \n \nthese job at the highest pay level since he has no past work experience with any of the \ncompanies or in that particular type of work.  Thus, I am persuaded that it would require \nan  impermissible amount of  speculation  for me to  conclude  that  the  Claimant  would  in \nfact earn the same or greater wages that he earned as a mixer operator.  \nB. Controverted Attorney’s Fee     \n The  Respondents  have  controverted  this  claim  for  wage  loss  disability.  Thus,  the \nClaimant’s attorney is entitled to a controverted attorney’s fee on the indemnity benefits \nawarded herein pursuant to the statute, explicitly Ark. Code Ann. §11-9-715.  \n          AWARD \nIn  accordance  with  the  findings  of  fact  and  conclusions  of  law  set  forth,  the \nRespondents are directed to pay benefits as set forth herein.   \nThe Claimant’s attorney is entitled to the maximum statutory attorney’s fee on the \nindemnity benefits awarded herein, one-half of which is to be paid by the Claimant and \none-half to be paid by the Respondents in accordance with to Ark. Code Ann. § 11-9-715.  \nAll accrued sums shall be paid in a lump sum without discount and this award shall \nearn interest at the maximum legal rate until paid, pursuant to Ark. Code Ann. §11-9-809.   \nThe Respondents are directed to pay the court reporter’s fee within thirty (30) days \nof receipt of the invoice. \nAll issues not addressed herein are expressly reserved under the Act. \n \nIT IS SO ORDERED. \n \n                        \n______________________ \n                                                                           Chandra L. Black \n                 Administrative Law Judge \n \n\nHamilton – H105339  \n26","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO.:H105339 DARRELL HAMILTON, EMPLOYEE CLAIMANT COOPER TIRE & RUBBER COMPANY, EMPLOYER RESPONDENT CENTRAL ADJUSTMENT COMPANY, INC., INSURANCE CARRIER/THIRD PARTY ADMINISTRATOR (TPA) RESPONDENT OPINION FILED FEBRUARY 6, 2023 Hearing held before Administrative Law ...","fetched_at":"2026-05-19T23:10:05.822Z","links":{"html":"/opinions/alj-H105339-2023-02-06","pdf":"https://labor.arkansas.gov/wp-content/uploads/HAMILTON_DARRELL_H105339_20230206.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}