{"id":"alj-H202795-2023-10-16","awcc_number":"H202795","decision_date":"2023-10-16","opinion_type":"alj","claimant_name":"Jessie Kirk","employer_name":"Van Buren Water & Sewer Dept","title":"KIRK VS. VAN BUREN WATER & SEWER DEPT. AWCC# H202795 OCTOBER 16, 2023","outcome":"granted","outcome_keywords":["granted:4","denied:1"],"injury_keywords":["back","shoulder","repetitive"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads//KIRK_JESSIE_H202795_20231016.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"KIRK_JESSIE_H202795_20231016.pdf","text_length":21912,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO.  H202795 \n \nJESSIE L. KIRK, Employee                                                                              CLAIMANT \n \nVAN BUREN WATER & SEWER DEPT., Employer                                 RESPONDENT                         \n \nARKANSAS MUNICIPAL LEAGUE, Carrier                                              RESPONDENT                        \n \n \n \n OPINION FILED OCTOBER 16, 2023 \n \nHearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Fort Smith, \nSebastian County, Arkansas. \n \nClaimant represented by EDDIE H. WALKER, JR., Attorney, Fort Smith, Arkansas. \n \nRespondents represented by MARY K. EDWARDS, Attorney, No. Little Rock, Arkansas. \n \n \n STATEMENT OF THE CASE \n  \n On September 18, 2023, the above captioned claim came on for hearing at  Fort \nSmith, Arkansas.  A pre-hearing conference was conducted on June 21, 2023 and a pre-\nhearing  order  was  filed  on  that  same  date.    A  copy  of  the  pre-hearing  order  has  been \nmarked as Commission’s Exhibit #1 and made 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 the \nwithin claim. \n 2.      The  claimant  sustained  a  compensable  injury  to  his  back,  head,  and  right \nshoulder on March 30, 2022. \n 3.   The claimant was earning an average weekly wage of $965.04 which would \nentitle him to compensation at the weekly rates of $643.00 for total disability benefits and \n\nKirk – H202795 \n2 \n \n$482.00 for permanent partial disability benefits. \n 4.   The respondent accepted and paid permanent partial disability benefits based \non a 2% rating to the body as a whole. \n 5.   Respondent previously paid claimant permanent partial disability benefits for a \n10% impairment rating in a previous claim. \n At the pre-hearing conference the parties agreed to litigate the following issues: \n1.     Claimant’s entitlement to benefits pursuant to A.C.A. §11-9-505(a)(1). \n2.     Wage loss disability. \n3.      Attorney’s fee. \n The   claimant   contends   that   since   the   respondents   were   able   to   provide \nemployment for the claimant after the surgery for which they are claiming a 10% to the \nwhole person reduction in his current impairment rating, they should be able to allow him \nto return to work following his most recent surgery.  Unless they can present good cause \nfor  not  allowing  the  claimant  to  return  to  work,  payments  pursuant  to  A.C.A.  §11-9-\n505(a)(1)  are  appropriate.    Claimant  contends  that  if  the  respondent/employer  is  not \nallowing him to return to work at wages equal to or greater than the wages that he was \nearing at the time of his injury, he is entitled to wage loss disability.  Claimant contends \nhis attorney is entitled to an appropriate attorney’s fee in regard to any benefits awarded \npursuant to A.C.A. §11-9-505(a)(1) and as a result of an award of wage loss disability. \nThe  respondents  contend  claimant  cannot  prove  that  he  is  entitled  to benefits \npursuant to A.C.A. §11-9-505(a)(1).  Suitable work was not available with the employer.  \nRegarding  wage  loss,  respondents  pursued  vocational  rehabilitation  and  recently \nreceived the report.  Respondents are in the process of determining its position regarding \n\nKirk – H202795 \n3 \n \nwage loss. \n From a review of the record as a whole, to include medical reports, documents, \nand other matters properly before the Commission, and having had an opportunity to hear \nthe testimony of the witnesses and to observe their demeanor, the following findings of \nfact and conclusions of law are made in accordance with A.C.A. §11-9-704: \n \n  FINDINGS OF FACT & CONCLUSIONS OF LAW \n \n 1.   The stipulations agreed to by the parties at a pre-hearing conference conducted \non June 21, 2023 and contained in a pre-hearing order filed that same date are hereby \naccepted as fact. \n 2.    Claimant has failed to prove by a preponderance of the evidence that he is \nentitled to benefits pursuant to A.C.A. §11-9-505(a)(1). \n 3.    Claimant has proven by a preponderance of the evidence that he is entitled to \npermanent partial disability benefits in an amount equal to 35% to the body as a whole \nas a result of his compensable injury for loss in wage earning capacity. \n 4.   Respondents have controverted claimant’s entitlement to all unpaid indemnity \nbenefits. \n \n FACTUAL BACKGROUND \n Claimant is a 48-year-old high school graduate who worked for respondent as a \nWastewater Plant Operator Class III.  He has a prior history of injuries to his low back.  \nClaimant was involved in a motor vehicle accident in 2000 which resulted in surgery at \nthe L5-S1 level.  Thereafter, while employed by respondent, claimant suffered a second \ninjury to his low back in 2009 when he and another employee were digging a sewer line \n\nKirk – H202795 \n \n4 \n \nand the ditch collapsed. As a result of that injury, claimant underwent surgery on August \n12,  2010,  which  was  performed  by  Dr.  Arthur  Johnson.    Following  that  surgery,  Dr. \nJohnson assigned claimant an impairment rating in an amount equal to 10% to the body \nas a whole.   \n After the surgery in 2010, claimant returned to work for respondent and continued \nto  perform  his  regular  job  duties  until  March  30,  2022.    On  March  30,  2022,  claimant \nsuffered an admittedly compensable injury to his back, head, and right shoulder when he \nwas struck from behind by another employee driving a vehicle.   \n Claimant was treated for his back injury by Dr. Frank Tomecek, neurosurgeon, who \nperformed an L5-S1 decompression and fusion procedure on August 24, 2022.  Medical \nrecords from Dr. Tomecek reflect that although claimant’s condition improved after the \nsurgery, he still continued to have some complaints of low back pain with post-surgical \ntreatment including physical therapy and two S1 joint injections.   \n Dr. Tomecek ordered a functional capacities evaluation which was performed on \nApril 19, 2023, and determined that claimant demonstrated the ability to perform work in \nthe  Medium  classification  of  work  with  the  ability  to  occasionally  lift  up  to  50  pounds.  \nFollowing  the  functional  capacities  evaluation,  claimant  returned  to  Dr.  Tomecek  who \nagreed  with  the  evaluation  restrictions  with  additions  of  no  pushing  or  pulling  over  70 \npounds; no crawling; no repetitive squatting or bending; and limited climbing of stairs or \nladders  to  a  few  minutes  per  day.    Dr.  Tomecek  indicated  that  claimant  had  reached \nmaximum  medical  improvement  and  he  also  assigned  claimant  an  additional 2% \nimpairment rating to the body as a whole.  This rating has been accepted and paid by \nrespondent. \n\nKirk – H202795 \n \n5 \n \n Following claimant’s release by Dr. Tomecek, he was not permitted to return to his \nprior position by respondent; instead, his employment was terminated.   On July 3, 2023, \nclaimant  became  employed  by  the  City  of  Fort  Smith  as  a  Wastewater  Plant Operator \nearning $15.54 per hour or $32,323.20 per year.   \n Claimant has filed this claim contending that he is entitled to benefits pursuant to \nA.C.A. §11-9-505(a)(1) due to respondent’s failure to return him to his prior job.  He also \nrequests benefits for wage loss disability resulting from his compensable injury. \n \nADJUDICATION \n Claimant contends that he is entitled to benefits pursuant to A.C.A. §11-9-505(a)(1) \nfor respondent’s refusal to return him to his prior job.  In order to receive benefits pursuant \nto A.C.A. §11-9-505(a)(1), claimant has the burden of proving by a preponderance of the \nevidence  that  (1)  he  sustained  a  compensable  injury;  (2)  there  is suitable employment \nwithin his physical and mental limitations available with the employer; (3) the employer \nrefused to return him to work; and (4) the employer’s refusal to return him to work was \nwithout reasonable cause.  Torrey v. City of Fort Smith, 55 Ark. App. 226, 230, 934 S.W. \n2d 237, 239 (1996); Nat’l. Cmty. Coll. v. Castaneda, 2018 Ark. App. 458, 588 S.W. 3d \n911.   \n I find that claimant has failed to meet his burden of proof.  Specifically, I find that \nclaimant has failed to satisfy elements (2) and (4).  The job description of a Water and \nWastewater  Operator  III requires  the  ability  to  lift  manhole  covers  weighing  up  to  50 \npounds.  Claimant contends that after his 2009 injury he was given a lifting restriction of \n40 pounds and that he continued to perform his job duties until the time of his March 30, \n\nKirk – H202795 \n \n6 \n \n2022 injury.  Therefore, since his restriction is now 50 pounds, he should be permitted to \nreturn to work for respondent at his prior job. \nEven  though  claimant  worked  at  his  job  performing  lifting  which  may  have \nexceeded his limitations after the 2009 injury, that is not determinative of this issue given \nthe remaining evidence presented.  Although claimant’s contention that he could return \nto work and lift up to 50 pounds is the primary basis for his claim, the evidence does not \nsupport this contention.  The medical records contain numerous statements from claimant \nto his treating physicians that he did not believe he could return to his prior employment.   \n  March 2, 2023 – Dr. Tomecek \n \n  His employer is Van Buren water and sewer.  He does \n  not feel he can return to that job because it is too much \n  manual labor.  He cannot work on his flower beds he \n  tries walking and it is difficult he cannot rake or do \n  other yard work.  It is hard for him to drive more than \n  short distances. \n \n \n  April 6, 2023 – Dr. Tomecek \n \n  His job involves sometimes lifting up to 200 and more \n  pounds at a time.  He has to lift 50 pound bags of Lyme \n  all day he has to mow and weed eat throughout the day. \n  He does not feel he can return to this type of work.   \n       \n     *** \n  He states that with the requirements of his job for the \n  state that he does not believe he can return to a job \n  with this degree of manual labor. \n \n \n  April 19, 2023 – Functional Capacity Evaluation \n \n  He reports that he had to climb stairs daily and ladders \n  only occasionally.  He had to regularly lift 50 lb bags of \n  lime and 5 gallon buckets of water samples.  Mr. Kirk \n  reports that he is not sure if he is able to perform those \n\nKirk – H202795 \n \n7 \n \n  job duties at this time due to his back condition. \n \n \n  May 4, 2023 – Dr. Tomecek \n \n  At that job he had to lift 50 pound bags of Lyme \n  several times a day.  He also had to do other \n  maintenance mowing and weed eating and many \n  other activities.  In addition, there were times he \n  had to lift up to 200 pounds at this job.  \n \n  (Emphasis added.) \n \n \n Notably, as late as the functional capacity evaluation on April 19, 2023, claimant \ninformed the individuals at the evaluation that he did not think he could perform the job \nduties  due  to  his  back  condition.    I  also  note  that  the  functional  capacity  evaluation \nindicated that claimant could occasionally lift up to 50 pounds.  According to the FCE, he \nhad to regularly lift 50-pound bags of lime and according to Dr. Tomecek claimant lifted \nthose 50-pound bags several times per day.  In addition, despite the job description which \nindicates lifting up to 50 pounds, claimant informed Dr. Tomecek in his reports of April 6, \n2023 and May 4, 2023 that he had to lift up to 200 pounds at his job. \n Furthermore, although claimant contends that he is capable of performing his prior \njob  which  would  require  lifting  of  at  least  50  pounds,  he  has  not  tried  to  lift  that  much \nbecause he is afraid to try. \n  Q Now, your medical records indicate that the doctor \n  has placed a 50-pound restriction on you.  Do you believe \n  that is about right or not? \n \n  A I haven’t tried it.  I have not tried lifting anything that \n  heavy yet.  I am afraid to. \n \n \n Given claimant’s testimony that he has not lifted anything weighing 50 pounds \n\nKirk – H202795 \n \n8 \n \nbecause he is afraid to would be an indication that respondent’s refusal to return claimant \nto a job requiring lifting 50 pounds was not unreasonable.   To the contrary, one could \nargue that it would be irresponsible for respondent to place claimant in a position of lifting \nmore weight than he feels comfortable lifting.   \n I  also  note  that  in  addition  to  the  weight  limitation,  Dr.  Tomesek  indicated  that \nclaimant is limited to climbing stairs and ladders to only a few minutes per day and that \nhe was restricting from pushing/pulling more than 70 pounds. \n Testifying at the hearing on behalf of respondent was Steve Dufresne, Director of \nUtilities for respondent since September 1, 2012.  Prior to serving as director, Dufresne \nperformed various other jobs for respondent since 1992, including the job performed by \nclaimant. Dufresne testified that because respondent is a small utility, individuals in one \ndivision have to help perform duties in other divisions.  This would include helping repair \nwater and sewer leaks and maintenance of water meters.  These duties may include using \nshovels to dig up water lines; maintaining and repair of meters weighing 300-400 pounds; \nand climbing out of pits and vaults that may be four to twelve foot deep.  Dufresne testified: \n  Q So what specifically of the job duties when you made \n  that decision was giving you pause or you felt like maybe he \n  could not do? \n \n  A Specifically, all of them.  Opening and closing valves \n  is a pushing and pulling.  Climbing in and out of pits, climbing \n  on ladders, climbing on water tanks.  Pulling pumps.  Working \n  on pulling manholes.  Just all of the general - - everything we \n  do requires the bending, squatting, crawling so on a continual \n  basis. \n \n \n Finally,  I  note  that  when  he  was  not  allowed  to  return  to  respondent,  claimant \nobtained  employment  at  the  City  of  Fort  Smith  as  a  Class  III  Wastewater Operator. \n\nKirk – H202795 \n \n9 \n \nAlthough this title is the same as the claimant held with respondent, the fact that claimant \nhas  the  same  job  title  with  Fort  Smith  does  not  serve  as  proof  that  he  could  have \ncontinued performing the job with respondent.  For instance, it is unknown whether the \njob  with  the  City  of  Fort  Smith  requires  lifting  up  to  50  pounds.    If  it  does, claimant \napparently  has  not  performed  that  duty  because  he  testified  that  he  had  not  lifted  50 \npounds because he was afraid to do so.  In addition, according to statements he made to \nDr.  Tomecek  he  had  to  lift  up  to  200  pounds  with  respondent.    There is  no  evidence \nclaimant is lifting that much weight with the City of Fort Smith.  Accordingly, I do not find \nthat  the  evidence  establishes  that  claimant  is  performing  the  same  job  with  Fort Smith \nwith the same job duties such as would serve as evidence that he could perform his prior \njob with respondent. \n In  summary,  I  find  that  claimant  has  failed  to  meet  his  burden  of  proving  by a \npreponderance of the evidence that there was suitable employment within his physical \nrestrictions and that respondent’s refusal to return him to work was without reasonable \ncause.  Claimant was assigned a lifting restriction of 50 pounds occasionally, but indicated \nto Dr. Tomecek that he had to lift up to 200 pounds at his job.  He also indicated that he \nhad  to  regularly  lift  50-pound  bags  of  lime  each  day.    Claimant  indicated  to  both  Dr. \nTomecek  and  at  the  functional  capacities  evaluation  that  he  did  not  believe  he  could \nperform his job duties with respondent.  Finally, according to claimant’s own testimony, \nhe  has  not  even  attempted  to  lift  50  pounds  because  he  is  afraid  to  try.    Under  these \ncircumstances, it was not unreasonable for respondent not to return claimant to a job that \nrequired lifting up to 50 pounds.  Accordingly, I find that claimant has failed to meet his \nburden  of  proving  by  a  preponderance  of  the  evidence  that  he  is  entitled  to  benefits \n\nKirk – H202795 \n \n10 \n \npursuant to A.C.A. §11-9-505(a)(1). \n Claimant also contends that he is entitled to permanent partial disability benefits \nfor a loss in wage earning capacity resulting from his compensable injury.  Pursuant to \nA.C.A. §11-9-522(b)(1), in considering claims for permanent disability benefits in excess \nof  the  percentage  of  permanent  physical  impairment,  the  Commission  may take  into \naccount  various factors  including  the percentage of  permanent  physical  impairment as \nwell as the claimant’s age, education, work experience, and other matters reasonably \nexpected to affect his future earning capacity. \n After consideration of the relevant wage loss factors in this case, I find that claimant \nhas suffered a loss in wage earning capacity in an amount equal to 35% to the body as a \nwhole.   \n The claimant is 48 years old and he is a  high school graduate.  Claimant admitted \nthat  he  struggles  with  the  use  of  computers.    Claimant  testified  that  he  has  several \nlicenses.    These  include  Water  Distribution  License  Grade  III;  Wasterwater  Treatment \nGrade III; Backflow Tester and Repair; Masters in Solid Waste; Plumbing Inspector’s \nLicense; and a Class A CDL.   \n Claimant’s prior jobs have included work for a water and sewer contractor; working \nfor Stilwell Industries, and working as a wildland firefighter for the U.S. Forestry Service.  \nAccording  to  claimant’s  testimony,  none  of  his  prior  jobs  were  any  less  physically \ndemanding than the job he performed with respondent. \n As previously noted, claimant has a total impairment rating in an amount equal to \n12% to the body as a whole (10% from 2010 and 2% from 2023).   He has been given \nrestrictions from a functional capacities evaluation which allows him to occasionally lift up \n\nKirk – H202795 \n \n11 \n \nto 50 pounds and carry up to 20 pounds on a frequent basis.  Claimant was also limited \nto occasional stooping, crouching and kneeling.  The evaluation determined that claimant \nwas  capable  of  performing  work  in  the  Medium  classification  of  work.    Following  that \nevaluation  claimant  returned  to  Dr.  Tomecek  who  indicated  that  in  addition  to  the \nrestrictions placed upon claimant at the functional capacities evaluation, claimant should \nnot push or pull over 70 pounds and he should not crawl or repetitively squat or repetitively \nbend.    In addition,  he should  limit  climbing  of  stairs  and  ladders  to  only  a  few minutes \neach day.  \n For reasons previously discussed, claimant was not capable of returning  to work \nfor the respondent.  Claimant underwent a vocational evaluation with the highest paying \njob identified as a Watershed Tender at an average salary of $30,020.00.  Fortunately, \nclaimant  was  able  to  obtain  employment  at  the  City  of  Fort  Smith  as  a  Class  III \nWastewater Operator.  Documentary evidence indicates that claimant earns $15.54 per \nhour for a total of $32,323.20 per year for this City of Fort Smith.  Based on the parties’ \nstipulations, the claimant earned an average weekly wage of $965.04 while working for \nrespondent which would total $50,182.08 per year. Thus, claimant has clearly suffered a \nloss in his ability to earn wages. \n Based on the foregoing evidence, I find that claimant has met his burden of proving \nby a preponderance of the evidence that he has suffered a loss in wage earning capacity \nin  an  amount  equal  to  35%  to  the  body  as  a  whole.    While  claimant  is capable  of \nperforming work in the Medium classification of work according to the functional capacity \nevaluation, his  ability  to  lift  has  been  severely  limited  by his  most  recent  compensable \ninjury.  In fact, that inability led to claimant no longer being able to perform his job with the \n\nKirk – H202795 \n \n12 \n \nrespondent.  Claimant underwent a vocational evaluation in which the highest paying job \nwas  identified  as  Watershed  Tender  at  an  average  salary  of  $30,020.00.    Fortunately, \nclaimant  was  able  to  obtain  employment  with  the  City  of  Fort  Smith  as  a  Wastewater \nOperator Class III at a salary of $32,323.20.  Thus, I find that claimant has suffered a loss \nin wage earning capacity in an amount equal to 35% to the body as a whole as a result \nof his compensable injury. \n \nAWARD \n Claimant has failed to prove by a preponderance of the evidence that he is entitled \nto benefits pursuant to A.C.A. §11-9-505(a)(1).  Claimant has proven by a preponderance \nof the evidence that he has suffered a loss in wage earning capacity in an amount equal \nto 35% to the body as a whole.  Accordingly, claimant is entitled to payment of permanent \npartial disability benefits in an amount equal to 35% to the body as a whole.  Respondent \nhas controverted claimant’s entitlement to all unpaid indemnity benefits. \nPursuant to A.C.A. §11-9-715(a)(1)(B), claimant’s attorney is entitled to an attorney \nfee  in  the  amount  of  25%  of  the  compensation  for  indemnity  benefits  payable to  the \nclaimant.   Thus, claimant’s attorney is entitled to a 25% attorney fee based upon the \nindemnity benefits awarded.   This fee is to be paid one-half by the carrier and one-half \nby the claimant.    \nRespondents  are  responsible  for  payment  of  the  court  reporter’s  charges  for \npreparation of the hearing transcript in the amount of $608.45. \nAll sums herein accrued are payable in a lump sum and without discount. \n \n\nKirk – H202795 \n \n13 \n \n IT IS SO ORDERED. \n \n       ________________________________  \n       GREGORY K. STEWART \n       ADMINISTRATIVE LAW JUDGE","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H202795 JESSIE L. KIRK, Employee CLAIMANT VAN BUREN WATER & SEWER DEPT., Employer RESPONDENT ARKANSAS MUNICIPAL LEAGUE, Carrier RESPONDENT OPINION FILED OCTOBER 16, 2023 Hearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Fort Smith, Sebastian Cou...","fetched_at":"2026-05-19T23:01:45.298Z","links":{"html":"/opinions/alj-H202795-2023-10-16","pdf":"https://labor.arkansas.gov/wp-content/uploads//KIRK_JESSIE_H202795_20231016.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}