{"id":"alj-H109437-2023-09-06","awcc_number":"H109437","decision_date":"2023-09-06","opinion_type":"alj","claimant_name":"Lisa Pozner","employer_name":"University Of Arkansas For Medical Science,","title":"PONZER VS. UNIVERSITY OF ARKANSAS FOR MEDICAL SCIENCE, AWCC# H109437 SEPTEMBER 6, 2023","outcome":"granted","outcome_keywords":["granted:2"],"injury_keywords":["fracture","back"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/Pozner_Lisa_H109437_20230906.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Pozner_Lisa_H109437_20230906.pdf","text_length":14684,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H109437 \n \nLISA POZNER, EMPLOYEE CLAIMANT \n \nUNIVERSITY OF ARKANSAS FOR \nMEDICAL SCIENCE, EMPLOYER RESPONDENT \n \nSTATE OF ARKANSAS,  \nCARRIER                                                                                                  RESPONDENT \n \nPUBLIC EMPLOYEE CLAIMS DIVISION,  \nTHIRD PARTY ADMINISTRATOR                                                           RESPONDENT \n \nOPINION FILED SEPTEMBER 6, 2023 \n \nHearing  before  Administrative  Law  Judge  Steven  Porch  on  August  22,  2023,  in  Little \nRock, Arkansas. \n \nClaimant  is  represented  by  Mr.  Mark  Alan  Peoples,  Attorney  at  Law,  Little  Rock, \nArkansas. \n \nRespondents are represented by Mr. Charles H. McLemore, Attorney at Law, Little Rock, \nArkansas. \n \nSTATEMENT OF THE CASE \n \n A hearing was held on this claim on August 22, 2023.  Claimant was represented \nby Mr. Mark Alan Peoples, Attorney at Law of Little Rock, Arkansas; Respondents were \nrepresented by Mr. Charles H. McLemore, Attorney at Law of Little Rock, Arkansas. \nSTIPULATIONS \n By agreement of the parties, the stipulations applicable to this claim are as follows: \n1. The Arkansas Workers’ Compensation Commission has jurisdiction \nof the within claim. \n \n2. An employer/employee relationship existed on  September 9, 2021, \nwhen  Claimant  sustained  a  compensable  acute  L1  spinal  fracture \ninjury. \n \n\nPOZNER H109437 \n \n2 \n \n3. Respondents accepted this claim as compensable and paid medical \nbenefits and permanent partial disability (PPD) based on 7% whole \nbody impairment. \n \n4. The  parties  will  stipulate  to  Claimant’s  average  weekly  wage  and \ncompensation rates on or before the hearing date. \n \nISSUES \n The parties have identified the following issues to be adjudicated: \n1.  Whether the Claimant is entitled to permanent total disability benefits (PTD). \n \n2.  Alternatively,  whether  Claimant  is  entitled  to  additional  permanent  partial \ndisability (PPD) based on wage loss in an amount to be determined. \n \n3. Attorney’s fees with respect to controverted indemnity benefits.  \n \nAll other issues are reserved. \n \nCONTENTIONS \n \nClaimant’s  and  Respondents’  contentions  are  set  out  in  their  responses  to  the \nPrehearing Questionnaire.  Said contentions are hereby incorporated by reference.  \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n After  reviewing  the  record  as  a  whole,  including  medical  reports,  documents, \nClaimant and Respondents’ post hearing briefs that are blue-backed and made a part of \nthis  record  and  other  matters  properly  before  the  Commission,  and  having  had  an \nopportunity  to  hear  the  testimony  of  the  Claimant,  the  sole  witness,  and  observe  her \ndemeanor,  I  hereby  make  the  following  findings  of  fact  and  conclusions  of law  in \naccordance with Ark. Code Ann. § 11-9-704 (Repl. 2012): \n1.  The  Arkansas  Workers’  Compensation  Commission  has  jurisdiction  over  this \nclaim. \n \n2.  The stipulations set forth above are reasonable and are hereby accepted.  \n\nPOZNER H109437 \n \n3 \n \n3.  The Claimant is not entitled to permanent total disability benefits but is entitled \nto  wage-loss  disability  in  the  amount  of 35%  in addition  to  Claimant’s  7% \npermanent anatomical impairment. \n \n4.  Claimant is entitled to controverted attorney fees. \nCASE IN CHIEF \nSummary of Evidence \n The Claimant was the sole witness during the hearing. In addition to admitting the \nCommission’s   file   by   reference,   I also   admitted   into   evidence Claimant’s and \nRespondent’s exhibits  that  were  properly  admitted  before  the  Commission.  Claimant \nsuffered a compensable back injury, during the course and scope of her employment with \nthe University of Arkansas for Medical Sciences (“UAMS”), as a Nurse Practitioner, when \nshe hyper-extended  her  back  when  she  jerked  backwards  after  accidentally  pricking \nherself  with  a  used  needle  from  an  HIV  infected  patient.  Claimant  sustained an  acute \ncompression fracture to her L-1 spine. The Claimant underwent Kyphoplasty, a medical \nprocedure, that was performed by Dr. Jarna Shah, on November 2, 2021, that resulted in \ntwo  additional  fractures  to  her  spine  located  at  T-12  and  L-2.  Dr.  Michael  Cassatt,  the \nworkers’ compensation medical provider, ordered that procedure. Claimant did not have \nOsteoporosis when these fractures occurred. \nThe Claimant was prescribed a back brace, Tramadol and Flexeril. Claimant stated \nduring the hearing that her back pain has been so debilitating that it has prevented her \nfrom gaining meaningful employment. Claimants back pain even resulted in the ultimate \nloss of her job with UAMS where she was placed on restricted duty. Since then, Claimant \nhas  been  seeking  other  meaningful  employment  but  due  to  her  high level  of  pain \nwhenever  she  sits  or  stands  for  any  appreciable  time  the  search  has  been  difficult. \n\nPOZNER H109437 \n \n4 \n \nClaimant was offered one job opportunity that she declined due to the amount of sitting \nthe job required.  \nAdjudication \nA.  Whether Claimant is entitled to permanent total disability benefits (PTD). \n As the parties stipulated and the record reflects, the work incident of September 9, \n2021, resulted in a compensable injury to Claimant’s back.  This injury is an unscheduled \none.  Cf. Ark. Code Ann. § 11-9-521 (Repl. 2012).  The term “permanent total disability” \nis  defined  in  the  statute  as  “inability,  because  of  compensable  injury  or  occupational \ndisease, to earn any meaningful wages in the same or other employment.”  Ark. Code \nAnn. § 11-9-519(e)(1) (Repl. 2012). \n Claimant’s  entitlement  to  wage  loss  disability  benefits  is  controlled  by  §  11-9-\n522(b)(1) (Repl. 2012), which states: \nIn considering claims for permanent partial disability benefits in excess of \nthe employee’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 \nemployee’s age, education, work experience, and other matters reasonably \nexpected to affect his or her future earning capacity. \n \nSee  Curry  v.  Franklin  Elec.,  32  Ark.  App.  168,  798  S.W.2d  130  (1990).    Such  “other \nmatters” include motivation, post-injury income, credibility, demeanor, and a multitude of \nother factors.  Id.; Glass v. Edens, 233 Ark. 786, 346 S.W.2d 685 (1961).  As the Arkansas \nCourt of Appeals noted in Hixon v. Baptist Health, 2010 Ark. App. 413, 375 S.W.3d 690, \n“there is no exact formula for determining wage loss . . . .”  Pursuant to § 11-9-522(b)(1), \nwhen  a  claimant  has  been  assigned  an  impairment  rating  to  the  body  as  a  whole,  the \nCommission  possesses  the  authority  to  increase  the  rating,  and  it  can  find  a  claimant \n\nPOZNER H109437 \n \n5 \n \ntotally  and  permanently  disabled  based  upon  wage-loss  factors.   Cross  v.  Crawford \nCounty Memorial Hosp., 54 Ark. App. 130, 923 S.W.2d 886 (1996). \n To  be  entitled  to  any wage-loss disability  in excess of  an  impairment  rating,  the \nclaimant must prove by a preponderance of the evidence that he sustained permanent \nphysical impairment as a result of a compensable injury.  Wal-Mart Stores, Inc. v. Connell, \n340  Ark.  475,  10  S.W.3d  727  (2000).    The  standard  “preponderance  of  the evidence” \nmeans the evidence having greater weight or convincing force.  Barre v. Hoffman, 2009 \nArk. 373, 326 S.W.3d 415 (citing Smith v. Magnet Cove Barium Corp., 212 Ark. 491, 206 \nS.W.2d 442 (1947)).  The wage loss factor is the extent to which a compensable injury \nhas affected the claimant’s ability to earn a livelihood.  Emerson Elec. v. Gaston, 75 Ark. \nApp.  232,  58  S.W.3d  848  (2001).    In considering  factors  that  may  impact  a  claimant’s \nfuture  earning  capacity,  the  Commission  considers  her  motivation  to  return  to  work, \nbecause a lack of interest or a negative attitude impedes the assessment of her loss of \nearning capacity.  Id.  The Commission may use its own superior knowledge of industrial \ndemands,  limitations,  and  requirements  in  conjunction  with  the  evidence to  determine \nwage-loss disability.  Oller v. Champion Parts Rebuilders, 5 Ark. App. 307, 635 S.W.2d \n276 (1982).  Finally, Ark. Code Ann. § 11-9-102(4)(F)(ii) (Repl. 2012) provides: \n(a) Permanent benefits shall be awarded only upon a determination that the \ncompensable injury was the major cause of the disability or impairment. \n \n(b)  If  any  compensable  injury  combines  with  a  preexisting  disease  or \ncondition or the natural process of aging to cause or prolong disability or a \nneed  for  treatment,  permanent  benefits  shall  be  payable  for  the  resultant \ncondition only if the compensable injury is the major cause of the permanent \ndisability or need for treatment. \n \n“Major cause” is more than fifty percent (50%) of the cause and has to be established by \na  preponderance of  the  evidence.    Ark.  Code  Ann.  §  11-9-102(14)  (Repl.  2012).  \n\nPOZNER H109437 \n \n6 \n \n“Disability” is the “incapacity because of compensable injury to earn, in the same or any \nother  employment,  the  wages  which  the  employee  was  receiving  at  the  time  of  the \ncompensable injury.”  Id. § 11-9-102(8). \n The determination of a witness’ credibility and how much weight to accord to that \nperson’s testimony are solely up to the Commission.  White v. Gregg Agricultural Ent., 72 \nArk.  App.  309,  37  S.W.3d  649  (2001).    The  Commission  must  sort  through  conflicting \nevidence and determine the true facts.  Id.  In so doing, the Commission is not required \nto believe the testimony of the claimant or any other witness but may accept and translate \ninto findings of fact only those portions of the testimony that it deems worthy of belief.  Id.  \nClaimant  has  suffered a compensable  injury,  by  specific  incident,  to  her  back  on \nSeptember  9,  2021,  when  she  hyper  extended  her  back  as  a  result  from  being \naccidentally pricked by a needle from an HIV infected patient. The injury occurred during \nthe course and scope of her employment with Respondents. The essential issue in this \nmatter  is  whether the  Claimant  is  entitled  to  only  the  7%  impairment  rating  or  benefits \nbeyond the impairment rating.  \nThe  Claimant  is  64  years  old  with  a bachelor’s  degree  in  english,  psychology, \nsocial work, and nursing. The Claimant also has a master’s in counseling psychology and \nnursing. The Claimant is a licensed nurse practitioner. Claimant has worked as a distress \ncounselor, registered nurse and nurse practitioner. Claimant is having difficulty sitting or \nstanding  for  any  reasonable  period  which  was  evident  with  her  constant  standing  and \nsitting  during  her  testimony. I  don’t  believe  this  was  staged  behavior. Claimant  has \nprofessed a strong desire to continue working. The Claimant has manifested this desire \nby maintaining  her  nurse  practitioner’s  license  from her  home  -  online  computer \n\nPOZNER H109437 \n \n7 \n \nrecertification courses - while lying in bed due to severe back pain. Claimant has applied \nfor multiple jobs and was offered full-time work but declined due to the long-term sitting \nrequirement.  Though  her  application  for  jobs  appears  to  be  an  act  of  futility,  given  her \nstruggles with intense pain from sitting or standing too long, she testifies that she applies \nfor these jobs in the event she feels better and can accept a suitable position. She admits \nthere  currently  are  no  jobs  that  she  can  take  due  to  her  intense  pain  from  her \ncompensable work injury. I do agree that intense back pain can create great difficulties \nfor finding suitable employment. Thus, I find the Claimant’s testimony credible. I further \nfind the Claimant can obtain suitable part-time work with her credentials. \nNevertheless,  no credible  evidence  has  been  presented  to  me  justifying  an \nincrease in the 7%  anatomical  impairment rating. Thus, I find by the preponderance of \nthe  evidence  that  Claimant  did  not  prove  she  was  permanently  and  totally disabled. \nHowever,  I  do  find by  the  preponderance  of  the  evidence  that  Claimant  proved  she \nsustained  wage-loss  disability  in  the  amount  of 35%  in  addition  to  the  Claimant’s  7% \nanatomical  impairment.  I  further  find  by  the  preponderance  of  the  evidence  that \nClaimant’s September 9, 2021, compensable work injury was the major cause of her 7% \nanatomical impairment and 35% wage-loss disability.  \nATTORNEY FEES \nOne of the purposes of the attorney's fee statute is to put the economic burden of \nlitigation on the party who makes litigation necessary.  Brass v. Weller, 23 Ark. App. 193, \n745 S.W.2d 647 (1998).  Under Ark. Code Ann. § 11-9-715 (Repl. 2012): \n(B) Attorney’s fees shall be twenty-five percent (25%) of compensation for \nindemnity  benefits  payable  to  the  injured  employee  or  dependents  of  a \ndeceased employee . . . In all other cases whenever the commission finds \nthat a claim has been controverted, in whole or in part, the commission shall \n\nPOZNER H109437 \n \n8 \n \ndirect that fees for legal services be paid to the attorney for the claimant as \nfollows:  One-half (½) by the employer or carrier in addition to compensation \nawarded;  and  one-half  (½)  by  the  injured  employee  or  dependents  of  a \ndeceased employee out of compensation payable to them. \n \n Discussion.    The  evidence  before  me  clearly  shows  that  Respondents  have \ncontroverted Claimant’s entitlement to additional indemnity benefits.  Thus, the evidence \npreponderates that her counsel, the Hon. Andy Caldwell, is entitled to the fee as set out \nabove for all indemnity benefits that should have been paid consistent with this opinion \nand in compliance with the Arkansas Workers’ Compensation Act. \nCONCLUSION \n Respondents  are  hereby  directed  to pay/furnish  benefits  in  accordance  with  the \nfindings of fact and conclusions of law set forth above.  All accrued sums shall be paid in \na lump sum without discount, and this award shall earn interest at the legal rate until paid, \npursuant to Ark. Code Ann. § 11-9-809 (Repl. 2012).  See Couch v. First State Bank of \nNewport, 49 Ark. App. 102, 898 S.W.2d 57 (1995). \n IT IS SO ORDERED. \n       ________________________________ \n       Hon. Steven Porch \n                                                                           Administrative Law Judge","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H109437 LISA POZNER, EMPLOYEE CLAIMANT UNIVERSITY OF ARKANSAS FOR MEDICAL SCIENCE, EMPLOYER RESPONDENT STATE OF ARKANSAS, CARRIER RESPONDENT PUBLIC EMPLOYEE CLAIMS DIVISION, THIRD PARTY ADMINISTRATOR RESPONDENT OPINION FILED SEPTEMBER 6, 2023 Hearing before A...","fetched_at":"2026-05-19T23:02:27.061Z","links":{"html":"/opinions/alj-H109437-2023-09-06","pdf":"https://labor.arkansas.gov/wp-content/uploads/Pozner_Lisa_H109437_20230906.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}