{"id":"alj-H302489-2024-10-21","awcc_number":"H302489","decision_date":"2024-10-21","opinion_type":"alj","claimant_name":"Dane Monger","employer_name":"Horseshoe Canyon Ranch","title":"MONGER VS. HORSESHOE CANYON RANCH AWCC# H302489 October 21, 2024","outcome":"denied","outcome_keywords":["granted:3","denied:4"],"injury_keywords":["shoulder","concussion","strain","rotator cuff","back"],"pdf_url":"https://www.labor.arkansas.gov/wp-content/uploads/MONGER_DANE_H302489_20241021.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"MONGER_DANE_H302489_20241021.pdf","text_length":30707,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO.  H302489 \n \nDANE MONGER, Employee                                                                           CLAIMANT \n \nHORSESHOE CANYON RANCH, Employer                                           RESPONDENT                                                   \n \nBRIDGEFIELD CASUALTY/SUMMIT CONSULTING,                             RESPONDENT                                                                                                  \nCarrier/TPA \n \n \n OPINION FILED OCTOBER 21, 2024 \n \nHearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Springdale, \nWashington County, Arkansas. \n \nClaimant represented by DANIEL E. WREN, Attorney, Little Rock, Arkansas. \n \nRespondents represented by ZACHARY F. RYBURN, Attorney, Little Rock, Arkansas. \n \n \n STATEMENT OF THE CASE \n  \n On September  18,  2024,  the  above  captioned  claim  came  on  for  hearing  at \nSpringdale, Arkansas.  A pre-hearing conference was conducted on June 5, 2024 and a \npre-hearing 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 her left shoulder and head on \nJune 14, 2022. \n At the pre-hearing conference the parties agreed to litigate the following issues: \n1.   Additional temporary total disability benefits from October 27, 2022 until April  \n\nMonger – H302489 \n2 \n \n18, 2023, and again from August 24, 2023 through October 11, 2023. \n2.   Average weekly wage. \n3.   Permanent partial disability benefits based on a 4% rating and wage loss. \n4.    Attorney’s fee. \nThe claimant contends she sustained a compensable injury when she was thrown \nfrom a horse on June 14, 2022, suffering a head injury and a right shoulder injury, which \nwas later diagnosed as a torn labrum.  The torn labrum was surgically repaired on April \n18, 2023.  From June 14, 202, the respondent employer provided light duty employment \nfor the claimant until she was terminated on October 27, 2022.  The respondents paid for \nall reasonable and necessary medical treatment until claimant was released at maximum \nmedical improvement on October 11, 2023.  Respondents stopped paying temporary total \ndisability  on  August  24,  2023.    When  claimant  was  released  at  maximum  medical \nimprovement  the  doctor  did  a  passive  range  of  motion  test,  which  would  entitle  the \nclaimant to a 4% impairment rating to the body as a whole.  In addition to claimant’s \nsalary, she was provided room and board by the respondent employer valued at $1000 \nper week.  The claimant’s average weekly wage was $1329.21.  After being released at \nmaximum  medical  improvement,  the  claimant  was  not  rehired  by  the  respondent \nemployer, and has not been able to find suitable employment at the level of pay she was \nreceiving at the time of the injury, thus suffering wage loss.   \nThe respondents contend claimant was paid properly for the amount of time she \nwas off work.  The claimant is a seasonal worker, working at a horse ranch.  The time \nclaimed for temporary total disability is off season time. \n From a review of the record as a whole, to include medical reports, documents, \n\nMonger – H302489 \n \n3 \n \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 \nconducted on  June 5, 2024 and contained in a pre-hearing order filed that same date are \nhereby accepted as fact. \n 2.     Claimant earned an average weekly wage of $479.00 which would entitle \nher  to  compensation  at  the  rates  of  $319.00  per  week  for  total  disability  benefits  and \n$239.00 per week for permanent partial disability benefits. \n 3. Claimant has failed to prove by a preponderance of the evidence that she \nis  entitled  to  temporary  total  disability  benefits  from  August  27,  2022  through  April  18, \n2023 or from August 24, 2023 through October 11, 2023. \n 4. Claimant has failed to prove by a preponderance of the evidence that she \nis  entitled  to  any  permanent  partial  disability  benefits,  either  in  the  form  of  permanent \nimpairment or wage loss, as a result of her compensable injury. \n 5.      To the extent that respondent paid claimant compensation benefits at a rate \nless than the average weekly wage of $479.00, respondent has controverted claimant’s \nentitlement to that difference and is liable for payment of an attorney fee. \n \n \n FACTUAL BACKGROUND \n Respondent is a ranch in Newton County that has thirteen guest cabins for rent.   \n\nMonger – H302489 \n \n4 \n \nDuring the “all-inclusive” season guests are charged approximately $1245.00 - $1325.00 \nper adult for a cabin.  In addition to the accommodations, all meals and activities were \nincluded.  The all-inclusive season begins the first Monday in March and concludes the \nlast Saturday in October.  The “off-season” begins after the last Saturday in October.  \nDuring he off-season, the cabins were rented to guests at the rate of $115.00 per night \nfor a small cabin and $135.00 per night for a larger cabin.  During the off-season, meals \nand activities were not included for the guests. \n Claimant is a 23-year-old woman who began working for respondent in July 2021.  \nShe was employed as a “wrangler” who was responsible for catching, saddling, preparing, \nand feeding horses.  She also led guests on trail rides.  She was paid $12.00 an hour and \nwas also provided meals and lodging. \n The parties have stipulated that claimant suffered a compensable injury to her right \nshoulder and head on June 14, 2022 when she was thrown from her horse. She received \nmedical  treatment  from  Dr.  Christopher  Gilbert who diagnosed claimant  with a  closed \nhead  injury (concussion) and  a  right  shoulder  strain.    She  was  given  a  sling  to  wear; \nmedication;  and  instructed  to  receive  follow-up  orthopedic  care  from  Dr.  Justin  Cutler.  \nShe was also released to return to work with restrictions. \n Claimant was evaluated by Dr. Cutler on June 29, 2022, and assessed with right \nshoulder contusion bursitis.  Dr. Cutler gave claimant a steroid injection and released her \nto return to work with restrictions.  When claimant’s condition did not improve, he ordered \nphysical therapy and continued the work restrictions. \n At some point claimant came under the care of Dr. Saunders, orthopedic surgeon, \nwho ordered an MRI arthrogram of the right shoulder.  Although the MRI of February 8, \n\nMonger – H302489 \n \n5 \n \n2023 was interpreted as unremarkable, Dr. Saunders indicated in his report of February \n20, 2023, that in his opinion “there is an irregularity along the anterior inferior capsular \nlabral junction.”  As a result, he recommended a diagnostic arthroscopic procedure which \nwas performed by him on April 7, 2023.  The Post-Op Diagnosis states: \n \n1. R shoulder posterior-superior labral tear without  \nevidence of capsular avulsion with associated synovitis. \n2.  R shoulder posttraumatic bursitis with rotator cuff \ntendinosis.   \n \n \n The  operative  report  indicates  that  Dr.  Saunders  performed  a  debridement  and \nsubacromial bursectomy.  Following this surgery, Dr. Saunders took claimant work and \nordered physical therapy.  His reports indicate that claimant was pleased with the results \nof the surgery and in a report dated October 11, 2023, he stated that claimant had reached \nmaximum medical improvement and could return to work. \n Respondent  paid  claimant  some  compensation  benefits  for  her  compensable \ninjury.  Claimant has filed this claim contending that she is entitled to payment of additional \ntemporary total disability benefits from October 27, 2022 through April 18, 2023, and from \nAugust 24, 2023 through October 11, 2023.  She also requests payment of permanent \npartial disability benefits based on a 4% rating to the body as a whole; benefits for wage \nloss; and computation of her compensation rate. \n \nADJUDICATION \n The first issue for consideration involves claimant’s average weekly wage and \ncompensation rates.  The parties agree that claimant’s average weekly should consist of \n\nMonger – H302489 \n \n6 \n \nthe wages paid to her as well as the value of the housing and meals provided.  However, \nthe parties are not in agreement as to any of the calculations.   A.C.A. §11-9-518(c) states \nthat  in  exceptional  circumstances  the  Commission  may  determine  the  average weekly \nwage  that  is  just  and  fair  to  all  parties  concerned.    Furthermore,  A.C.A.  §11-9-102(19) \ndefines “wages” as: \n  The money rate at which the service rendered is \n  recompensed under the contract of hire enforced \n  at the time of the accident, including the reasonable \n  value of board, rent, housing, lodging, or other similar \n  advantage received from the employer. \n \n \n Prior to discussing the calculation of the claimant’s average weekly wage, it is first \nnecessary to discuss the working relationship between employees such as claimant and \nthe  respondent.    As  previously  noted,  respondent’s operation included an  all-inclusive \nseason  and  an  off-season.    Testifying  at  the  hearing  was  Barry  Johnson  who  was  the \nowner/operator of respondent during the period of time claimant worked there.  Johnson \ntestified that employees such as claimant generally did not work during the off-season.  \nHowever,  if  the  employee  was  going  to  be  invited  back  to  work  the  next  all-inclusive \nseason, they were given the opportunity to remain in their lodging and live at the ranch \nduring the off-season.  While they were not required to perform any job duties during this \nperiod of time, they would sometimes be offered an odd job for which they would be paid \nan agreed upon amount.  Johnson stated that he would consider them to be “inactive” \nemployees.   \n   \n  Q Let me clarify again.  The people that you invited  \n  and allowed to stay at the ranch in the off-season, you did \n  not consider employees? \n\nMonger – H302489 \n \n7 \n \n \n  A Sometimes they were.  Sometimes they worked but \n  they were off-season employees.  If they weren’t employees, \n  they wouldn’t be staying there because they wouldn’t be \n  starting anew when a new season started.  I would probably \n  consider them as inactive employees.  I’m not sure how to \n  describe that.  I know it’s a little unique to our industry. \n \n      *** \n  Q So they were inactive, and you didn’t make them do  \n  any work, but  you gave them opportunities to make a little \n  spot work here and there? \n \n  A Sure. \n \n \n During the all-inclusive season claimant and other employees were permitted to \neat the same meals provided to the paying guests at the ranch.  Johnson testified that the \nmeals were served buffet style and breakfast typically included bacon, eggs, pancakes, \nfruit, yogurt, etc.  Lunch would consist of burgers, fries, soups, salads, and pizza.  Dinner \nwas generally nicer with food including barbeque, pork tenderloin, and steak on Saturday \nnight.    During  the  off-season meals were not provided, but the ranch’s kitchen  was \nstocked and the “inactive” employees were free to fix food for themselves.   \n Claimant  and  other  employees  were  also  allowed  to  stay  rent  free  in  selected \ncabins.    As  previously  noted,  employees  who  were  invited  back  to  work  the  next  all-\ninclusive season were permitted to stay in their cabins during the off-season.  During the \noff-season of 2021-2022, claimant chose to stay in her cabin at the ranch. \n The initial portion of the average weekly wage to be calculated is claimant’s actual \nmoney wages earned while employed by respondent.  Claimant submitted into evidence \nas Claimant’s Exhibit 3 a wage statement setting out the money wages paid from July 25, \n2021  through  June  11,  2022.    Claimant  contends  that  since  she  was  considered  an \n\nMonger – H302489 \n \n8 \n \ninactive  employee  by  respondent  during  the  offseason  period  from  November  2021 \nthrough March 2022 her average weekly wage should be calculated using only the wages \nearned beginning in March 2022. \n I do not agree with this contention.  The wage statement indicates that during the \noffseason claimant was paid for odd jobs she performed between November 2021 and \nMarch  2022.    In  fact,  the  wage  statement  shows  that  claimant  earned  wages  twelve \ndifferent weeks during the offseason.  I see no reason to ignore these wages during this \nperiod of time.  The fact that claimant did not perform her regular job duties during the \noffseason does not change the fact that she still performed work for wages during this \nperiod of time.   \n The wage statement reflects a period of 47 weeks between July 25, 2021 and June \n11, 2022.  I find that claimant’s money wages should include the 39 weeks during that \nperiod of time she was paid money wages by respondent.  During this period claimant \nwas  paid  a  total  of  $12,810.92.    Dividing  these  total  wages  by  39  weeks  results  in  an \naverage weekly money wage of $329.00.   \n Turning now to the value of the lodging and food portion of claimant’s wages, I \nnote that claimant relies on her testimony and the testimony from Johnson that the cabin \nprovided to claimant is better than a dorm room.  Claimant then cites the cost of dorm \nrooms at the University of Arkansas – Fayetteville as evidence that the value of her cabin \nis greater than a dorm room at the University.  I do not find a dorm room at the University \nof Arkansas to be comparable in value to a room located on a ranch in Newton County. \n Claimant  also  testified  that  she  considered  her  cabin  to  be  similar  to  the  guest \ncabins.  Therefore, she contends that the value of her cabin would be similar to the value \n\nMonger – H302489 \n \n9 \n \ncharged to a guest.  Claimant introduced into evidence photos of two cabins; however, \nboth of those cabins are guest cabins, not the cabin in which claimant lived.  According \nto the testimony of Johnson, claimant stayed in two different areas.  He testified that the \ncabin she stayed in was smaller than the smallest guest cabin and that it was originally a \nportable building that had 2 x 4 walls and had been covered with cedar siding.  He also \ntestified that the guest cabins had much nicer levels of finish. \n  Q Did they have different levels of finishes? \n \n  A They did.   The cabins were furnished well for guests, \n  Western motifs, fully furnished, linens, towels, and things like \n  that. \n \n  Q What about countertop levels and the quality of the \n  bathroom; any difference there? \n \n  A Yes, the cabins had, you know, granite countertops \n  and Dane’s was just a formica, Home Depot countertop, if \n  I remember. \n \n \n Johnson also testified that the first cabin claimant lived in was in the lower level of \na barn. \n  It was built for staff housing.  It’s in a lower level of the \n  barn, and there’s a girls’ side and a boys’ side, and they \n  share a common kitchen area.  So there was bunkbeds \n  in each side for staff, and then they had their bathroom  \nand then shared a kitchen area. \n \n \n Finally, Johnson testified that he placed the value of the cabin provided to claimant \nat $300.00 per month.   \n  Q How did you come to that number? \n \n  A We never claimed it as an expense, so we were \n  estimating what shared accommodations, or the level of \n\nMonger – H302489 \n \n10 \n \n  trim, or quality of the combinations would be in our area. \n \n  Q Did you in your mind compare it to a dorm room? \n \n  A No. \n \n  Q Did you tell me yesterday that you kind of thought \n  of it as a dorm room? \n \n  A Oh, it is.  It’s a bunkhouse in Newton County, Arkansas, \n  but it’s not a dorm room in Fayetteville, Arkansas. \n \n \n Claimant  submitted  into  evidence  a  video  of  her  cabin.    After  my  review  of  that \nvideo as well as the pictures from the guest cabins, I do not find that the cabin provided \nto claimant was compatible with the guest cabins.  The video and pictures clearly indicate \nthat  the  cabins  provided  to  the  guests  have  significantly  better  finishes  and  are  much \nnicer than the cabin shown on the video.  Accordingly, I do not find that the cabin provided \nto claimant was the equivalent of or comparable to the guest cabins on the ranch. \n Based upon the evidence presented, I do not find the cabin provided to claimant \non a ranch in Newton County to be comparable to the value of a dorm room on the campus \nof the University of Arkansas.  I also do not find it to be comparable in value to the amount \ncharged for guest cabins.  According to Johnson the first place that claimant was provided \nwas in the lower level of a barn.  As for the second cabin, it was originally a portable shed \nthat had been covered with cedar siding.  The finish of claimant’s cabin was not equivalent \nto the finish and furnishings of the guest cabins.  I find that the value of the cabin was \nequal  to  $300.00  as  testified  to  by  Johnson.    He  testified  that  he  arrived  at  that  value \nbased upon various factors such as shared accommodations, the level of trim, and the \nquality of other housing available in their area.   \n\nMonger – H302489 \n \n11 \n \n I also find the value of the food provided to claimant to be $300.00 per month based \non the testimony of Johnson.  Johnson testified as follows: \n  Q And how did you calculate, or estimate, or come to \n  that number? \n \n  A Strictly on a cost basis.  So, a lot of the employees, \n  though they were offered, did not participate in meals.  A lot \n  of times they would skip meals or not take advantage of that \n  benefit.  They were guested out and then would just disappear \n  during meal times.  So we figured it on a cost basis because \n  the cook was already there, the kitchen was already there, we \n  were already providing food for the guests, so the only cost we \n  were incurring was the flour, eggs, and whatever it took to cook \n  the meal. \n \n \n I find his testimony to be credible and entitled to great weight.  It might be argued \nthat the value of the lodging and meals provided to claimant is greater than the $600.00 \nper month testified to by Johnson.  However, for reasons previously discussed, I do not \nfind comparisons to dorm rooms at the University of Arkansas to be comparable.  Nor do \nI find the lower level of a barn or a former portable building to be equivalent to the guest \ncabins  located on  the ranch.    Any determination  in  the  value  of  the lodging and meals \nprovided  to  claimant  must  be  based  upon  the  evidence  presented  at  the  hearing.    A \nfinding that the value of lodging or food is actually $800.00 per month for example would \nrequire speculation and conjecture since there is no evidence offered to that effect at the \nhearing.  Speculation and conjecture are not to be substituted for credible evidence by \nthe Commission.  Dena Construction Company v. Herndon, 264 Ark. 791, 575 S.W. 2d \n155 (1979). \n Based on a finding that the value of lodging ($300.00) and food ($300.00) equals \n$600.00 per month or $150.00 per week combined with her money wages of $329.00 per \n\nMonger – H302489 \n \n12 \n \nweek,  I  find  that  claimant’s  average  weekly  wage  equals  $479.00.    This  results  in \ncompensation  rates  of  $319.00  for  total  disability  and  $239.00  for  permanent  partial \ndisability benefits. \n The  next  issue  for  consideration  involves  claimant’s  request  for  payment  of \ntemporary total disability benefits from October 27, 2022 through April 18, 2023, and from \nAugust 24, 2023 through October 11, 2023.  Claimant’s injury is an unscheduled injury.  \nIn  order  to  be  entitled  to  temporary  total  disability  benefits  for  an  unscheduled  injury, \nclaimant has the burden of proving by a preponderance of the evidence that she remained \nwithin her healing period and that she suffered a total incapacity to earn wages.  Arkansas \nState  Highway  &  Transportation  Dept.  v.  Breshears,  272  Ark.  244,  613  S.W.  2d  392 \n(1981).  \n Even  assuming  that  claimant  remained  within  her  healing  period  during  the \nrequested  periods,  I  find  that  claimant  has  failed  to  meet  her  burden  of  proving  by  a \npreponderance of the evidence that she suffered a total incapacity to earn wages.  When \nclaimant initially sought medical treatment after her compensable injury, she was returned \nto work with work restrictions.  Claimant acknowledged that after her injury she returned \nto work for respondent and continued to work there until October 27, 2022, at which time \nthe all-inclusive season ended and claimant was informed that she would not be invited \nback to work during the all-inclusive season in 2023. \n On direct examination claimant testified that after she was let go by the respondent \nat the end of October she did not receive any workers’ compensation benefits until after \nher  surgery  in  April.    In  fact,  claimant  testified  that  she  did  not  receive  any  type  of \ncompensation from October 27, 2022 until the date of the surgery on April 18, 2023.  [The \n\nMonger – H302489 \n \n13 \n \nactual date  of  the  surgery  was  April  8,  not  April  18.]    In  reality,  while  claimant  did  not \nreceive workers’ compensation benefits during this period of time, she returned to work \nfor other employers and made more in average weekly wage than she was earning for \nthe respondent. \n  Q So you went without any type of compensation \n  from October 27\nth\n until – and I think we’ve got it here \n  exactly in the pleadings – April the 18\nth\n of 2023? \n \n  A Yeah, so I made nothing then. \n \n  Q During this period of time, did you try being a \n  Door Dash deliverer? \n \n  A Yes. \n \n  Q Did that work out? \n \n  A Not really, no. \n \n  Q The cost of the car and gasoline, was it worth it? \n \n  A No. \n \n  Q Did you have a friend of the family who needed a \n  sitter? \n \n  A Yes. \n \n  Q Did you do that? \n \n  A Yes. \n \n  Q  And how much were you paid per month? \n \n  A I was paid 2,000 per month, so it was $500 a week. \n \n      *** \n \n  Q After leaving in October 27\nth\n, 2022, did you move  \n  back to Kansas? \n \n\nMonger – H302489 \n \n14 \n \n  A Yes. \n \n  Q And then you started working for the Richard Laptad; \n  is that correct? \n \n  A Correct. \n \n  Q He is an elderly man, I think you described as being \n  in his 90s; is that correct? \n \n  A Yes. \n \n  Q And so you took care of him, offered him services \n  to live and get around the house; is that correct? \n \n  A Right, yeah. \n \n  Q And then you were paid $500 per week by Richard \n  Laptad; is that correct? \n \n  A Correct. \n \n  Q And that was for the period of time you worked for \n  him all the way up until your surgery on April 18\nth\n of 2023; \n  is that correct? \n \n  A Correct. \n \n \nThus,  in  the period  from  October  7,  2022  until  her  surgery on April  8,  2023,  the \nclaimant earned $500.00 per week as a sitter for an elderly gentleman.  This is more than \nshe  was  earning  as  an  average  weekly  wage  for  the  respondent.    Based  upon  this \nevidence  as  well  as  the  remaining  evidence  presented  in  this  case,  I  do  not  find  that \nclaimant  suffered  a  total  incapacity  to  earn  wages  between  October  27,  2022  and  the \ndate of her surgery on April 8, 2023. \nPayment records submitted into evidence by the respondent show that respondent \npaid claimant temporary total disability benefits beginning April 10, 2023 and continuing \n\nMonger – H302489 \n \n15 \n \nthrough August 27, 2023.  The medical evidence also indicates that Dr. Saunders opined \nthat  claimant  had  reached  maximum  medical  improvement  as  of  October  11,  2023.  \nClaimant  contends  that  she  is  entitled  to  temporary  total  disability  benefits  beginning \nAugust 24, 2023, and continuing through October 11, 2023.   \n Again, even assuming that the claimant remained within her healing period during \nthat period of time, I do not find that claimant suffered a total incapacity to earn wages.  \nAgain, claimant returned to work for other employers making an average weekly wage in \nexcess  of  the  average  weekly  wage  she  was  earning  for  respondent.    On  cross \nexamination, she testified that she returned to work as a sitter for Richard Laptad some \ntwo to three weeks after her surgery: \n  Q You took about two to three weeks off after \n  surgery; is that correct? \n \n  A Yes, roughly. \n \n  Q And then you began working for Richard Laptad, \n  again in the same capacity; is that correct? \n \n  A Yes. \n \n  Q Did you get paid the same, $500 per week? \n \n  A Yes. \n \n  Q  You worked for him all the way up until February \n  of 2024; is that correct? \n \n  A Yes. \n \n \n Accordingly,  I  find  that  claimant  has  failed  to  prove  by  a  preponderance  of  the \nevidence that she suffered a total incapacity to earn wages from August 24, 2023 through \nOctober 11, 2023.   \n\nMonger – H302489 \n \n16 \n \n The next issue for consideration involves claimant’s contention that she is entitled \nto permanent partial disability benefits  based on a 4% impairment rating and wage loss.  \nWith respect to the impairment rating, I note that Dr. Saunders did not assign the claimant \na  permanent  physical  impairment  rating.    However,  in  his  report  of  October  11,  2023, \nfinding that claimant had reached maximum medical improvement, Dr. Saunders did note \nvarious measurements regarding claimant’s right shoulder.  Page 59 of Claimant’s Exhibit \n1  is  an  effort  by  claimant  to  convert  those  measurements  into  an  impairment  rating \npursuant  to  the AMA  Guides,  Fourth  Edition.    The  parties  agree  that  the  handwritten \nportion  of  Page  59  is  not  from  Dr.  Saunders  or  anyone  in  his  office,  but  rather  was \ncalculated by Attorney Wren’s brother.  Apparently, claimant contends that the figures \nlisted  under  “PROM”  constitute  passive  range  of  motion  findings  which  result  in \npermanent impairment.  With respect to this issue, I find after reviewing the appropriate \nAMA Guides that it is impossible to translate these figures into an accurate impairment \nrating,  assuming  that  one  is  applicable.    The  measurement  categories  set  out  by  Dr. \nSaunders in his report of October 11, 2023, do not match the measurement categories \nset forth in the AMA Guides at Figures 38 and 41, which are cited by claimant.  In fact, I \nnote that even claimant questions whether Figure 41 is appropriate in response to one of \nthe measurements.  In short, claimant has the burden of proving by a preponderance of \nthe  evidence  that  she  has  a  permanent  physical  impairment  as  a  result  of  her \ncompensable injury.  I simply find based upon the evidence presented that claimant has \nfailed to meet that burden of proof. \n Having failed to prove by a preponderance of the evidence that she suffered any \npermanent  physical  impairment  as  a  result  of  her  compensable  injury,  claimant  is  not \n\nMonger – H302489 \n \n17 \n \nentitled to benefits for wage loss.  However, even if one were to find that claimant had \nsuffered a permanent physical impairment as a result of her compensable injury, I would \nnevertheless find that she has failed to prove that she has suffered a loss in wage earning \ncapacity as a result of her compensable injury.  As previously noted, claimant earned an \naverage weekly wage of $479.00.  Following her surgery, claimant returned to work as a \nsitter and earned $500.00 per week, which is more than her average weekly wage with \nthe respondent.  After performing that job for a period of time following her surgery the \nclaimant then began working as a waitress in Oklahoma.  According to her testimony, she \nmade  approximately  $2000.00  per  month  or  $500.00  per  week,  again  more  than  the \naverage weekly wage she was earning with the respondent.  At the time of the hearing \nthe claimant was employed at a feed yard in Oklahoma and was making $14.00 an hour.  \nClaimant  testified  that  she  made  $560.00  per  week  which  again  is  in excess  of  the \naverage weekly wage she was earning for the respondent.   \n Furthermore, with respect to this issue, I note that Dr. Saunders placed no physical \nrestrictions on the claimant’s ability to return to work.   \n Accordingly, for the foregoing reasons, I find that claimant has failed to meet her \nburden  of  proving  by  a  preponderance  of  the  evidence  that  she  is  entitled  to  any \npermanent partial disability benefits as a result of her compensable injury. \n \nORDER \n Claimant earned an average weekly wage of $479.00 which would entitle her to \ncompensation  at  the  rates  of  $319.00  for  total  disability  benefits  and  $239.00  for \npermanent partial disability benefits.  Claimant has failed to prove by a preponderance of \n\nMonger – H302489 \n \n18 \n \nthe  evidence  that  she  is  entitled  to  temporary  total  disability  benefits  from  October  27, \n2022  through  April  18,  2023,  or  from  August  24,  2023  through  October  11,  2023.  \nClaimant has also failed to prove by a preponderance of the evidence that she is entitled \nto  payment  of  any  permanent  partial  disability  benefits  as a  result of  her  compensable \ninjury.  To the extent that respondent paid claimant temporary total disability benefits at a \nrate  less  than  the  average  weekly  wage  of  $479.00,  I  find  that  respondent  has \ncontroverted claimant’s entitlement to those benefits and is liable for an appropriate \nattorney’s fee. \nPursuant to A.C.A. §11-9-715(a)(1)(B), claimant’s attorney is entitled to an \nattorney fee in the amount of 25% of the compensation for indemnity benefits payable to \nthe claimant.   Thus, claimant’s attorney is entitled to a 25% attorney fee based upon \nthe indemnity benefits awarded.   This fee is to be paid one-half by the carrier and one-\nhalf by the claimant.    \nRespondent is responsible for payment of the court reporter’s charges for \npreparation of the hearing transcript in the amount of $608.00. \nIT IS SO ORDERED. \n \n      ________________________________ \n       GREGORY K. STEWART \n       ADMINISTRATIVE LAW JUDGE","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H302489 DANE MONGER, Employee CLAIMANT HORSESHOE CANYON RANCH, Employer RESPONDENT BRIDGEFIELD CASUALTY/SUMMIT CONSULTING, RESPONDENT Carrier/TPA OPINION FILED OCTOBER 21, 2024 Hearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Springdale, Washin...","fetched_at":"2026-05-19T22:47:56.218Z","links":{"html":"/opinions/alj-H302489-2024-10-21","pdf":"https://www.labor.arkansas.gov/wp-content/uploads/MONGER_DANE_H302489_20241021.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}