{"id":"alj-H106528-2025-05-08","awcc_number":"H106528","decision_date":"2025-05-08","opinion_type":"alj","claimant_name":"Tommy Eldridge","employer_name":"City Of Harrison","title":"ELDRIDGE VS. CITY OF HARRISON AWCC# H106528 May 08, 2025","outcome":"granted","outcome_keywords":["granted:3"],"injury_keywords":["back","lumbar","repetitive"],"pdf_url":"https://www.labor.arkansas.gov/wp-content/uploads/ELDRIDGE_TOMMY_H106528_20250508.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"ELDRIDGE_TOMMY_H106528_20250508.pdf","text_length":34756,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO. H106528 \n \nTOMMY O. ELDRIDGE, EMPLOYEE CLAIMANT \n \nCITY OF HARRISON, EMPLOYER RESPONDENT \n \nARKANSAS MUNICIPAL LEAGUE, CARRIER/TPA RESPONDENT \n \n \n OPINION FILED MAY 8, 2025 \n \n \nHearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Harrison, Boone County, \nArkansas. \n \nClaimant represented by EVELYN E. BROOKS, Attorney, Fayetteville, Arkansas. \n \nRespondents represented by MARY K. EDWARDS, Attorney, North Little Rock, Arkansas. \n \n \n STATEMENT OF THE CASE \n  \n \n On February 12, 2025, the above captioned claim came on for a hearing at Harrison, Arkansas. \nA pre-hearing conference was conducted on October 31, 2024, and a pre-hearing order was filed on \nthat same date. A copy of the pre-hearing order has been marked as Commission’s Exhibit #1 and \nmade a part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1.   The Arkansas Workers’ Compensation Commission has jurisdiction of this claim.  \n2.   The employee/employer/carrier relationship existed on November 4, 2020. \n            3.   Claimant sustained a compensable injury on November 4, 2020.  \n At the hearing, the parties announced an agreement that claimant’s average weekly wage was \n$845.80, which would entitle him to compensation at the weekly rates of $564.00 for total disability \nbenefits and $423.00 for permanent partial disability benefits. \n\nEldridge-H106528 \n2 \n \n \n By agreement of the parties, the issues to be litigated and resolved at the forthcoming hearing \nwere limited to the following: \n1. Whether claimant is entitled to permanent and total disability, or in the alternative, a  \n       wage loss award in excess of the 25% wage loss conceded by the respondents. \n            2.   Attorney’s fees. \n All other issues are reserved by the parties. \n The claimant contends that “He is entitled to permanent and temporary total disability \nbenefits. Claimant reserves all other issues.” \n The respondents contend that “Claimant cannot prove by a preponderance of the evidence \nthat he is permanently and totally disabled. Claimant reached maximum medical improvement on July \n6, 2023. He received a twelve percent (12%) rating; respondents have paid this rating in full. Following \na valid FCE, claimant was placed on permanent work restrictions in the LIGHT classification of work. \nThe city  offered  claimant  a  job  within  his  permanent  work  restrictions.   See attached Exhibit “A.”  \nClaimant accepted this job and worked for the city. Id. However, in April of 2024 claimant voluntarily \nleft his employment with the city. Respondents accepted twenty-five percent (25%) wage loss based \non the difference between what claimant was making prior to his injury and the amount of the job \nthat he voluntarily quit.  Respondents are currently paying out the wage loss. Respondents reserve the \nright to file an amended response to the prehearing questionnaire or other appropriate pleading and \nto allege any further affirmative defense(s) that might be available upon further discovery.”     \n            From a review of the entire record including medical reports, documents, and other matters \nproperly  before  the  Commission,  and  having  had  an  opportunity  to  hear  the  testimony  of  the \nwitnesses and to observe their demeanor, the following findings of fact and conclusions of law are \nmade in accordance with A.C.A. §11-9-704: \n\nEldridge-H106528 \n3 \n \n \n \n  FINDINGS OF FACT & CONCLUSIONS OF LAW \n \n 1.   The stipulations agreed to by the parties at a pre-hearing conference conducted on October \n31, 2024, and contained in a pre-hearing order filed that same date are hereby accepted as fact, as is \nthe stipulation announced at the hearing about claimant’s average weekly wage. \n 2. Claimant  has  failed  to  prove  by  a  preponderance  of  the  evidence  that  he  is  entitled  to \npermanent total disability benefits pursuant to A.C.A. § 11-9-519. \n 3. Claimant has proven by a preponderance of the evidence that he is entitled to permanent \npartial  disability  benefits  in  an  amount  equal  to 50%  to  the  body  as  a  whole  as  a  result  of  his \ncompensable injury for loss in wage earning capacity. \n4.  Respondents  have  controverted  claimant's  entitlement  to  all  unpaid  indemnity  benefits \nabove 25% of the wage-loss disability it accepted and is currently paying. \n \n FACTUAL BACKGROUND \n In the prehearing order, claimant’s only contention was that he was entitled to permanent and \ntotal disability benefits. Respondents contended that he could not prove by a preponderance of the \nevidence that he was so entitled. Before the hearing began, the parties agreed to amend the issues to \nbe litigated to include an alternative claim for a wage-loss claim in excess of the 25% wage-loss which \nhad been conceded by respondents. The amended issue was read to the parties and both agreed to \nlitigate the amended issue. (T.5) This amendment was handwritten on the prehearing order.  \nHEARING TESTIMONY \n \n Claimant  was  the  only witness  called  on  his  behalf. He  testified  that  he  had  worked  for \nrespondent, City of Harrison, from August 2011 until he was injured on November 4, 2020. He was \na  heavy  equipment  mechanic which required  him  to  do  lifting  occasionally  of  one  hundred  to  one \n\nEldridge-H106528 \n4 \n \n \nhundred  twenty-five  pounds  and frequently between  forty  and  fifty-five  pounds. On  November 4, \n2020, claimant was installing a hydraulic cylinder on a backhoe when he felt something in his back as \nhe picked up the cylinder. Claimant said immediately after the incident that he was hurting so badly  \nthat he had to sit for about an hour and then he told his supervisor that he had hurt his back. Due to \nthe  injury  in  his  back,  claimant  has  had  two  surgeries,  multiple  injections,  and  two  radiofrequency \nablations (RFA). He continues to be treated by Dr. Brent Weilert for pain management.   \nClaimant testified that he continued working until June 14, 2022, but had to stop due to the \npain and numbness he felt in his back and legs. Dr. Daniel Shephard performed a fusion on claimant’s \nback on November 16, 2022, and claimant returned to work on light duty. In August 2023, claimant \nwas offered a job as a clerical assistant, a type of work he had never done. Claimant said he worked in \nthat clerical position for eight hours a day on four days of the first week and then two or three hours \na day for three or four days the next week. Claimant testified that sitting in a chair over a period of \ntime was painful and the way he could get relief at least at his home was to sit in his recliner and stretch \nout. Claimant said he could not concentrate because of the amount of pain he had. He tried different \nchairs which did not help alleviate the pain of sitting. \n Claimant related many activities that he did around his house and for leisure that he could no \nlonger do or could not do as he had before his injury. This included mechanical work, mowing the \nyard, feeding the chickens, cows, and goats, and deer hunting. Where before he could lift feed for the \nanimals, work on vehicles without stopping, weed eating his yard, and other such activities, these were \neither  now  impossible  for  him  to  do  or  took  him  much  longer  and  caused  him  great  discomfort. \nClaimant described his normal day as getting up with his wife at six a.m., drinking coffee, sitting in his \nchair until about nine thirty when he gets up to do the dishes and then returning to his recliner. He \ntestified that he does laundry; when he finishes folding it and putting it away, he is back in his recliner \n\nEldridge-H106528 \n5 \n \n \nto get relief. \n Claimant testified that he is now on Social Security disability, which was awarded for several \nconditions including the low back problem. Claimant worked with his high blood pressure and COPD \nas well as arthritis in his fingers and hearing loss. He stated that none of these conditions listed in his \nSocial Security disability award prevented him from working at the time of the accident.  \n Claimant related a vocational history of working in a grocery store, working in construction \nand factories, as well as working in a feed store and serving as a mechanic and/or maintenance man. \nMost of these jobs involved some degree of lifting above his current  restrictions. Claimant had never \nworked at any kind of desk job. He stated his education ended during the twelfth grade, but he did \nnot finish it, and he does not have a GED.  \n Claimant was shown the list of duties and responsibilities for the clerical assistant job which \nincluded regular and reliable attendance, which he stated he was able to do for four days. Claimant \nhad  no  typing skills  and had  not  done  data entry. He  had  no  experience writing  memorandums  or \nwriting communications from one department to another. He stated he was unable to remain alert \nand concentrate for long periods of time as the job description required. Claimant said when his pain \nis at its worst, he gets in his recliner to stretch out. He takes regular Tylenol daily and Tylenol p.m. to \nsleep. Claimant also uses a TENS unit.  \n Claimant related a back injury that he had in 2016 which was not work related. He had been \npruning and started going numb; after sitting on the ground, he got up and the numbness went away. \nHe was able to do the work required by the city from 2016 to November 2020. \n Claimant  said  the  pain  in  his  back  never  goes  away. He  has  a twenty-five-pound lifting \nrestriction; he believes there are some days he could do that, but other days, lifting a jug of milk from \nthe refrigerator causes pain. Claimant also testified that he had some issues of incontinence that he \n\nEldridge-H106528 \n6 \n \n \ndid not have prior to his first surgery.  \n On cross-examination, claimant stated that he was given permanent work restrictions in July \n2023 and was offered the job as a water/sewer clerk, which he accepted. Claimant believed that he \nstopped  coming  to  work around  September  20, 2023. When asked about  the  duties  as  a city water \nclerk, claimant testified that he was sitting at a desk and putting information and addresses into the \ncomputer. He was not required to lift over twenty-five pounds, stoop, climb, crouch, and could get \nup and move around as he needed. Claimant was asked about changing chairs and that his supervisor \nand head of the department told him to find a chair he was comfortable in. As a water clerk, claimant \nlooked at the screen and wrote down the information he found. Claimant agreed that he did not work \nfrom September 20, 2023, until November 20, 2023, nor did he return to work after he received a slip \nto go back to work on April 8, 2024. He provided the return-to-work slip to the city but did not return \nto work. Claimant also has not worked for any other employer since April 8, 2024. Claimant did speak \nwith  someone  in  November  2024,  about  a  job  at  Home  Depot  but  believed  it  was  outside  his \npermanent work restrictions. Claimant testified that he had worked on three occasions for someone \nback filling graves but had not yet been paid because he wanted to try to see if he could physically do \nit. He believed that job would pay $125.00 per grave. \n Claimant was asked about several jobs that had been suggested by a vocational rehabilitation \nspecialist including a  part-time  faculty  position at  the  vocational  school,  a  light  assembly worker  at \nGood Sportsmen Marketing, a call center representative, a senior retail sales associate at Auto Zone, \nan assembler at Baxter/Vantive and an assembly job at Light Manufacturing, none of which he had \napplied for.   \nClaimant again testified about his daily activities and stated that he sometimes works on his \nvehicles in a workshop, including changing the oil in one of his vehicles and how he goes hunting a \n\nEldridge-H106528 \n7 \n \n \ncouple of times a week during hunting season. He explained that prior to his injury, he was able to sit \nin a tree stand for 12 hours, drag out a deer if he shot one and process the meat. Since the injury, \nclaimant said  he goes  about  a  quarter  of  a  mile  from  his  house and  sits  in  the  blind  for  about  two \nhours. He drives close enough to the blind and walks about 100 yards to get in position for the hunt.   \n On redirect-examination claimant was asked about a release from Kelsey Harper in April 2024, \nwhich  stated  that  claimant  had  no  restrictions. Claimant  did  not  understand  that  he  had  ever  been \nreleased  with  no  restrictions, and  he  had  undergone  a  functional  capacity  evaluation that  placed \nrestrictions on him. \n Claimant said he has not applied for the teaching job as a vocational expert because he did not \nhave the education to do so. He explained that he had worked a light-duty job with the city in February \n2023,  that  involved  painting  benches,  running  a  weed  eater,  and  riding  a  lawn  mower,  but  he  was \nunable to do that work. Claimant said he would like to be working and had not been offered any job \nthat he had not tried to do either by the city or otherwise. He stated that he required family assistance \nfor the chores around his house.  \n After claimant rested, respondents called Wade Phillips who is the director of public works \nwhich  included  the  maintenance  department  where  claimant  worked when  he  was  injured,  and  the \nwater  department  where  claimant  returned  to  work  in  the  water/sewer  clerk  position. When  Mr. \nPhillips received the permanent work restrictions for claimant after his November 2022 surgery, he \ntried to find what positions were open with the city and located an unfilled clerical position. This job \npaid  an  annual  salary  of  $32,843.00  and  Mr.  Phillips  believed  that  the  job  description  was  within \nclaimant’s permanent work restrictions. Mr. Phillips said that he received the return-to-work release \nthat was signed on April 4, 2024, and claimant did not return. Mr. Phillips confirmed what claimant \nhad said about the physical demands of the clerk’s position and that had the position required anything \n\nEldridge-H106528 \n8 \n \n \nthat was outside of his capabilities, there would have been an attempt to accommodate him.  \n On  cross-examination, Mr. Phillips explained that the clerk’s position was more of a field \nposition,  but  the  city  did  not  have  a  good  candidate  to  fill  it  and  since  it  was  available  within  the \nbudget, claimant could be transitioned into that position. The job involved developing an inventory \nof their water service lines to be in compliance with EPA regulations. The city needed someone to \nlook through the tax records in the county to identify when a home was built. Those built before 1987 \ntriggered whether that particular water line needed to be looked into a bit further. This involved data \nresearch and working on the computer, taking notes and documenting what he found. Mr. Phillips \nbelieved Mr. Eldridge was qualified to do the job. He did not have to interview him because he already \nknew him. Mr. Phillips did not interact with claimant while he was doing the job because it was in a \ndifferent location from his office. Between September 2023, and April 2024, claimant was an employee \non paper but not participating in anything for the city. The clerk’s position has remained open since \nclaimant left. \n Under questioning from the Court, Mr. Phillips stated that he did not know that a high school \neducation or GED was a qualification for the job because it was not in claimant’s previous position. \nAs far as data entry, claimant said there was a fleet maintenance computer system they use for tracking \ninventory that claimant could have been used while he was working as a mechanic. The standard office \nequipment that claimant operated was a basic desktop computer. Claimant would have answered the \nphone while he was working doing maintenance only if it were a direct call to the shop.  \n Respondents then called Mr. Charles Jones, who was the operation manager for the water and \nsewer department. He was claimant’s supervisor during the time he worked at the water and sewer \ndepartment but not when he worked in maintenance. Mr. Jones confirmed that there were no physical \ndemands  for  that  job  that were not within claimant’s physical limitations. Claimant  was  shown \n\nEldridge-H106528 \n9 \n \n \nphotographs of the desk and chair that claimant used when he started working as a clerk. Mr. Jones \nwas aware that claimant had difficulty sitting in one  chair (R.NM.X. 69) and was shown photographs \nof other chairs he was offered but stated that claimant did not try those chairs. Mr. Jones did not recall \nclaimant asking for any help in operating the computer or hearing any complaints from him about not \nbeing able to work the program. \n On cross-examination, Mr. Jones described how he supervised twenty-five people and made \nplans for what each of them is to do on a daily basis. He stated that his office was where claimant was \nworking and he was in the office the majority of the time. At the end of each day, claimant turned in \nthe addresses he had verified and the dates on the houses when they were built. Mr. Jones was satisfied \nat the progress he was making. They had over seven thousand service connections that need to be \nverified. Each day, Mr. Jones made notes about the work claimant did on a particular day (R.NM.X.66). \nRegarding claimant’s complaints about his chair, Mr. Jones said that claimant was offered a different \nchair, but he did not want it. There were two other chairs other than the ones he had and those were \nthe best chairs available.  Mr. Jones did not know if the chair was giving claimant problems, but did \nstate that it did not have arms on it as it was one of the older chairs. He confirmed there was no place \nfor an employee to lay on a bed or a couch or get into a recliner. \n Claimant was recalled and testified that he had started in a metal chair, then moved to a plastic \nchair and then to a blue chair. The blue chair was the one without arms. (R.NM.68)  He had seen the \nother chairs (R. NM.X 71 and 72) but had not been offered those. However, he did not believe that \nthose chairs would have made it possible for him to sit for eight hours and work.    \n \nREVIEW OF THE EXHIBITS \n \n Claimant submitted sixty-eight pages of medical records; it appears that all but two pages of \nclaimant’s records were  included  in  those  submitted  by  respondents. An  exhaustive  review  of  the \n\nEldridge-H106528 \n10 \n \n \nrecords regarding claimant’s treatment is unnecessary for the determination of the issues in this case. \nDr. Konstantin Berestnev adequately summarized claimant’s medical history as part of his impairment \nrating on July 12, 2023. Dr. Berestnev noted that conservative treatment, steroid injections, and pain \nmedicine had failed, resulting in claimant having two surgeries on his lower back. The first surgery \nwas on August 2, 2021, which involved a bilateral L4-L5 hemilaminectomy and microdiscectomy, after \nwhich claimant continued to be symptomatic with L-5 dermatome numbness. On November 16, 2022, \nclaimant had an L4-L5 lumbar fusion, after which he continued to be sympathetic with pain radiating \ndown  both  legs  and  a  decreased  range  of  motion  in  his  lower  back. After  reviewing  the  functional \ncapacity evaluation, which was performed on June 19, 2023, Dr. Berestnev concluded that claimant \nwas at maximum medical improvement (MMI) and assessed a 12% whole person impairment rating. \nClaimant’s permanent restrictions were  no  lifting  above  twenty-five  pounds,  no  repetitive  bending, \nstooping, climbing, or crouching.  \nRespondents’ medical exhibits totaled one hundred fifty-four  pages,  which contained  all  of \nwhat claimant submitted (except for a visit to Ozark Urology on February 23, 2023). These additional \nrecords provided a more complete picture of claimant’s course of treatment through November 7, \n2024, but changed nothing about claimant’s impairment rating and current physical restrictions. There \nwas one record that I disregarded completely. On March 26, 2024, a physician’s assistant filled in a \nwork release that stated claimant had no restrictions as of April 8, 2024.  I believe the assistant made \na mistake in completing the form, because it was such an aberration in light of all the other evidence \nthat it was not credible.   \nNON-MEDICAL EXHIBITS \n Claimant    submitted    forty-seven    pages    of    non-medical    evidence    which    included \ncorrespondence to claimant regarding the clerical assistant position at the water and sewer department \n\nEldridge-H106528 \n11 \n \n \nwhich  included  the  job  description  with  the  essential  duties  and  responsibilities  along  with  the \nminimum  qualifications.  (CL.NM.X.2  pages  1-7) These records  also  included the  first  page  of \nclaimant’s Social Security disability award on January 20, 2024 (CL.NM.X.2 page 8) which provided \nthat claimant was disabled pursuant to the rules of the Social Security Administration as of August 2, \n2021. Claimant’s exhibit concluded with the vocational analysis of Dr. Tanya Rutherford-Owens and \ncorrespondence  with  Dr.  Owens  that  included  the  June  19,  2023,  functional capacity evaluation. \n(CL.NM.X.2  pages  9-47)    Claimant  then  supplemented  his  non-medical  records  with  the  disability \ndetermination explanation dated January 11, 2024, which was prepared as part of his Social Security \ndisability application (CL.NM.X.3, pages 1-8)  \n Respondents’ non-medical  exhibits  totaled ninety-three  pages  and  included  wage  records, \nemployee timesheets, indemnity payment log, and medical payment log as well as photographs of the \nworkspace where claimant was assigned in the water and sewer department and the chairs that were \nin the office when claimant worked there.  \nADJUDICATION \n \n As  set  forth  above,  claimant  has  a  12%  permanent  impairment  rating  to  his  lower  back  as \nassessed by Dr. Berestnev. The indemnity payment log submitted by respondent shows this rating was \naccepted and has already been paid. Respondents conceded claimant had a wage-loss disability in the \namount of 25% and had begun paying this as of the time of the hearing. The 25% wage-loss disability \nrepresents the difference between what claimant was earning as a heavy equipment mechanic and what \nhe was paid to work at a clerical assistant in the water and sewer department.  \n Claimant pled that he is entitled to permanent total disability benefits (PTD) as per Ark. Code \nAnn. § 11-9-519, or in the alternative, an award of wage-loss disability under Ark. Code Ann. § 11-9-\n522 above the 25% conceded by respondents. An award of permanent total disability would end the \n\nEldridge-H106528 \n12 \n \n \ndiscussion of this matter and therefore will be addressed first.  \nIs claimant permanently and totally disabled? \n Permanent  total  disability is  defined as the \"inability,  because  of  compensable  injury  or \noccupational  disease,  to  earn  any  meaningful  wages  in  the  same  or  other  employment.\"  Ark.  Code \nAnn.  §  11-9-519(e)(1)(Repl.  2012). A claimant  has  the  burden  of  proving  inability  to  earn  any \nmeaningful wage in the same or other employment. Ark. Code Ann. § 11-9-519(e)(2).  \n Looking at the clerk’s position, it is clear from reviewing the minimum qualifications for the \njob (Cl. 2 NMX 5-7), claimant did not qualify for the position. He did not have a high school diploma \nor equivalent, he had no experience using the software programs that were part of that position, and \nhe  had  no  experience  answering  the  phones  or  dealing  with  the  public. That  said, I  disagree  with \nclaimant’s assertion in closing argument that this was not a bona fide job offer (T. 54), because I am \nconvinced those that were responsible for hiring him as a clerk wanted him to be able to perform that \nsedentary job and  believed  he  was  capable  of  doing  so. Claimant  was  well  known  to  the city \nadministrators and department heads, and it appears there was a desire to accommodate him; as such, \nthe requirements in the job description were not enforced before giving the position to claimant. I \nalso note that when he was given the position in September 2023, the information that respondents \nhad was limited to that provided by the FCE of June 19, 2023, which said he was able to physically \nperform at the light classification of work (Cl.#2 NMX, page 26), and the clerk’s position was within \nthat restriction.  \n There were two determinations of claimant’s ability to engage in gainful employment after he \nleft the clerk’s job in September 2023. Claimant provided the disability determination from the Social \nSecurity Administration (Cl.X.3, pages 1-8) which was completed on January 11, 2024.\n1\n The disability \n \n1\n That determination by Social Security is evidence that  can be  considered by the Commission, but permanent and \n\nEldridge-H106528 \n13 \n \n \nexaminer, Ms. Rainey Leathers, found that there were insufficient numbers of jobs to which claimant \ncould return based on his residual functional capacity. Ms. Leathers believed the maximum sustained \nwork capacity claimant could reasonably be expected to perform was at the sedentary level. Claimant \nlisted  his  back  injury  among several  conditions  he  suffered  from,  including high  blood  pressure, \nchronic obstructive pulmonary disease, low cholesterol, joint pain in fingers, vertigo, right foot nerve \npain and hearing loss. Ms. Leathers found claimant’s lumbar stenosis was his primary issue and listed \nit as severe, but she also listed as severe issues his chronic pulmonary insufficiency,  osteoarthrosis \nand allied disorders.  \n Claimant  also  submitted  a  vocational  analysis  performed  by Dr.  Tanya  Rutherford  Owen, \nwhich  she  submitted  on  July  28,  2024 (R.2 NMX.75-87).  In  it, she  determined  claimant  could  not \nreturn to his past work, and based on claimant’s transferable skills, he had a loss of 80-83.92%  of \ntransferable skills occupations. She noted claimant had no transferable skills for sedentary work. Dr. \nOwen conducted a labor-market survey in which she listed seven occupations in the light category of \nwork that were available in claimant’s area at the time she completed her report. In an email exchange \nwith claimant’s attorney, Dr. Owen determined that five of those seven jobs would be eliminated if \nclaimant needed to sit and stand at will.    \n While I respect Dr. Owen’s expertise, I found  myself  disagreeing  with  her  opinion  on  two \npoints. First,  the  two  jobs  she  said  were  not  eliminated were  a  part-time  faculty  member at  North \nArkansas Community College and a Call Center Representative. The former was a position teaching \nvocational skills such as welding, construction equipment operations, automotive service, and the like. \nThe pay was $550-$3500 depending on “course credits and lecture/lab assignments.”  The required \n \ntotal  disability  for  the  purposes  of  social  security  is  different  than permanent  and  total  disability  under Arkansas \nworkers' compensation law. Kirkendolph v. Dep't of Fin. & Admin., 2010 Ark. App. 786 \n\nEldridge-H106528 \n14 \n \n \nqualification stated that completion of an associate’s degree was preferred. Claimant had not finished \nhigh school, and I do not believe he could adequately prepare and deliver lectures; further, the pay for \nthose  courses was far from a “meaningful wage.” The latter position required intensive  computer \nwork,  such  as  updating  billing,  processing  credit  card payments,  completing workflow for patient’s \nself-pay  accounts,  posting payments, and  dealing  with  the  public  on  such  issues. This  is  not  in  the \ncategory of light work, but rather in the nature of sedentary labor, which Dr. Owen had ruled out.  \n   However, claimant had a sedentary job that I find he was able to perform with the water and \nsewer department. This position did not involve data entry, but rather looking at existing tax records \nand making handwritten notes as to when a house was constructed. Mr. Jones testified while working \nin the clerk’s position, claimant wrote down what he had verified on each day. There was no testimony \nthat this task was beyond claimant’s limited knowledge of use of a computer. Claimant’s complaint \nwas not  that  he was  unable  to  do  the minimal  computer  operations required  for  that  position,  but \nrather that  the  chairs  in  the  office  were  uncomfortable  on  his  back. Mr. Phillips was  unaware  that \nanyone told claimant he could not stand or sit if he needed to do so during the workday. Mr. Jones \nand claimant had a different recollection as to whether claimant was offered the other available chairs; \nMr. Jones believed he was offered a different chair; claimant said no such offer was made, but then \nstated  that  he did  not think  the  other  chairs  would have  been  adequate. Rather  than seeking \naccommodation of a more comfortable chair from an employer that had shown its willingness to be \naccommodating to claimant, he simply quit the position after two weeks.      \n In  viewing  all  the  evidence,  I am  not  satisfied  that  claimant  is  motivated  to  seek full-time \nemployment  within  his  capabilities. Dr.  Owen pointed  out  that  claimant  could apply  for  retraining \nthrough  the  Arkansas  Rehabilitation  Services,  but  there  was  no  testimony  that  he  did  so. The \npreponderance of credible evidence shows that the claimant has the ability to perform work, at least \n\nEldridge-H106528 \n15 \n \n \nin the light category. Moreover, no doctor has opined that the claimant is incapable of returning to \nother  employment  in  the  sedentary  category;  that  was the  opinion  of  Dr.  Owen in  her  vocational \nanalysis,  which  as  stated  above,  I  reject as far  as some forms  of  employment  is  concerned. After \nconsidering claimant's  age,  education,  work  experience,  the  nature  and  extent  of  his  injury,  his \npermanent restriction, and all other relevant factors, I find he has not met his burden of proving that \nhe is permanently and totally disabled.  \nIs claimant entitled to wage-loss disability above the 25% conceded by respondent? \n Even with the desire to return claimant back to work, respondent could not do so at the wages \nhe was making before his injury, and therefore claimant is not barred by §11-9-522(b)(2) from making \na  claim  for  wage-loss  disability  above his  12%  permanent  physical  impairment  rating  which  was \nestablished  by  medical  evidence  and  accepted  by  the  parties.  Respondents’ position is that it \nestablished the amount of wage-loss by offering claimant a position within what it believed to be his \nphysical restrictions, and as claimant left that position voluntarily, he is not entitled additional wage-\nloss disability. I disagree.  \n Ark. Code Ann. § 11-9-522(b)(1) states: \nIn considering claims for permanent partial disability benefits in excess of the \nemployee's  percentage  of  permanent  physical  impairment,  the  Workers' \nCompensation  Commission  may  take  into  account,  in  addition  to  the \npercentage of permanent physical impairment, such factors as the employee's \nage,  education,  work  experience,  and  other  matters  reasonably  expected  to \naffect his or her future earning capacity.  \n \n Such “other matters” include motivation,  postinjury  income,  credibility,  demeanor,  and  a \nmultitude  of  other  factors  to  be  considered  in  claims  for  wage-loss-disability  benefits  in  excess  of \npermanent-physical  impairment. Ark.  Highway  &  Transp.  Dep't  v.  Work,  2018  Ark.  App.  600,  565 \nS.W.3d 138. There is no exact formula for determining wage loss Hixon v. Baptist Health, 2010 Ark. \nApp. 414. \n\nEldridge-H106528 \n16 \n \n \n In light of all the evidence, I do not believe claimant is motivated to return to the workforce \nas witnessed by how quickly he left the job he accepted with the water and sewer department. His \nfailure  to actively seek  other  employment since  he  was  released  with  those  restrictions also \ndemonstrates a lack of motivation to return to the workforce. I also believe his award of disability by \nthe Social Security Administration is a factor in his failure to seek meaningful employment; it is also a \nsource of postinjury income that I am taking into consideration. However, \"although a lack of interest \nin pursuing employment impedes the assessment of the claimant's loss of earning capacity, it is not a \ncomplete bar.\" Ark. DOT v. Abercrombie, 2019 Ark. App. 372., that alone does not bar claimant from \nreceiving some degree of wage loss benefits. According to Dr. Owen, claimant’s physical condition \nseverely  limits  the  number  of  jobs claimant  could  reasonably  be  expected  to  perform. After \nconsidering all the factors set forth in this opinion, I am satisfied that claimant has proven he has a \nwage loss disability of 50% above his physical impairment ratings.    \nORDER \n \n Claimant  has  failed  to  prove  by  a  preponderance  of  the  evidence  that  he  is  entitled  to \npermanent total disability benefits pursuant to A.C.A. § 11-9-519.  \nClaimant has proven by a preponderance of the evidence that he has suffered a loss in wage \nearning capacity in an amount equal to 50% to the body as a whole. Accordingly, claimant is entitled \nto payment of permanent partial disability benefits in an amount equal to 50% to the body as a whole.  \nRespondent  has  controverted  claimant's  entitlement  to  all  unpaid  indemnity  benefits above \nthe 25% wage loss disability that it conceded. \nPursuant to A.C.A. § 11-9-715(a)(1)(B), claimant's attorney is entitled to an attorney fee in the \namount  of 25%  of  the  compensation  for  indemnity  benefits  payable  to  the  claimant above  the \nindemnity benefits conceded by respondents. Thus, claimant's attorney is entitled to a 25% attorney \n\nEldridge-H106528 \n17 \n \n \nfee based upon the 15% wage-loss benefits awarded. This fee is to be paid one half by the carrier and \none-half by the claimant. \nRespondents are responsible for payment of the court reporter's charges for preparation of \nthe hearing transcript. \n IT IS SO ORDERED. \n                                                                                              \n_______     \n JOSEPH C. SELF \nADMINISTRATIVE LAW JUDGE","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H106528 TOMMY O. ELDRIDGE, EMPLOYEE CLAIMANT CITY OF HARRISON, EMPLOYER RESPONDENT ARKANSAS MUNICIPAL LEAGUE, CARRIER/TPA RESPONDENT OPINION FILED MAY 8, 2025 Hearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Harrison, Boone County, Arkansas. Claima...","fetched_at":"2026-05-19T22:40:31.786Z","links":{"html":"/opinions/alj-H106528-2025-05-08","pdf":"https://www.labor.arkansas.gov/wp-content/uploads/ELDRIDGE_TOMMY_H106528_20250508.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}