{"id":"alj-H303639-2025-06-26","awcc_number":"H303639","decision_date":"2025-06-26","opinion_type":"alj","claimant_name":"Afrim Rushani","employer_name":"Nbmc, Inc","title":"RUSHANI VS. NBMC, INC. AWCC# H303639 June 26, 2025","outcome":"granted","outcome_keywords":["granted:7"],"injury_keywords":["back","lumbar"],"pdf_url":"https://www.labor.arkansas.gov/wp-content/uploads/RUSHANI_AFRIM_H303639_20250626.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"RUSHANI_AFRIM_H303639_20250626.pdf","text_length":30679,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM No H303639 \n \nAFRIM RUSHANI, EMPLOYEE        CLAIMANT \n \nNBMC, INC., EMPLOYER            RESPONDENT \n \nTRAVELERS INDEMNITY CO. OF CT, CARRIER/ \nTHE TRAVELERS INDEMNITY CO., TPA          RESPONDENT \n \n \nOPINION & ORDER FILED 26 JUNE 2025 \n \n \nHeard before Arkansas Workers’ Compensation Commission Administrative Law Judge \nJayO. Howe on 2 April 2025 in Little Rock, Arkansas. \n \nThe claimant was represented by the Gary Davis Law Firm, Mr. Gary Davis. \n \nThe respondents were represented by the Ryburn Law Firm, Mr. Michael E. Ryburn. \n \nSTATEMENT OF THE CASE \n \n A Prehearing Order was filed on 28 January 2025 and admitted to the hearing \nrecord without objection as Commission’s Exhibit No 1. Consistent with that Order, the \nparties agreed to the following: \nSTIPULATIONS \n \n1. The Commission has jurisdiction over this claim. \n \n2. The employer/employee/carrier-TPA relationship existed at all relevant \ntimes, including on 24 March 2023, when the claimant suffered accepted \ncompensable injuries to his back and lower extremity. \n \n3. Temporary Total Disability (TTD) benefits and permanent partial disability \n(PPD) benefits have been paid by the respondents. \n \n4. The claimant’s average weekly wage was $1,159.89, which would entitle him \nto weekly TTD benefits of $773 and weekly PPD benefits of $580. \n \nISSUES \n \n1. Whether the claimant is entitled to wage-loss benefits. \n \n2. Whether the claimant is entitled to an attorney’s fee. \n\nRUSHANI- H303639 \n2 \n \n \nAll other issues have been reserved.\n1\n \n \nCONTENTIONS \n \nThe Prehearing Order incorporated by reference the following contentions from the \nparties’ respective prehearing information responses: \nClaimant CONTENDS that he sustained admitted compensable \ninjuries 24 April 2023. The claim was accepted as compensable. Temporary \ndisability benefits and permanent impairment benefits have been paid. \nClaimant contends that he is entitled to a wage loss disability determination. \nThese benefits have been controverted for purposes of attorney’s fees. \nClaimant reserves all other issues.  \n \nRespondents CONTEND that the claimant has a compensable injury. \nAll of the appropriate benefits have been paid. A PPD rating is being paid \ncurrently. The claimant has no wage loss.  \n \nFINDING OF FACTS AND CONCLUSIONS OF LAW \n \n Having reviewed the record as a whole, including the evidence summarized \nbelow, and having heard testimony from the witness, observing his demeanor, I make the \nfollowing findings of fact and conclusions of law under Ark. Code Ann. § 11-9-704: \n1. The Commission has jurisdiction over this claim. \n \n2. The stipulations as set forth above are accepted. \n \n3. The claimant has proven by a preponderance of the evidence that he is \nentitled to a wage-loss benefit of ten percent (10%) over and above his eight \npercent (8%) whole-body impairment rating for his stipulated compensable \nback injury. \n \n4. The claimant has proven by a preponderance of the evidence that he is \nentitled to an attorney’s fee on the indemnity benefits awarded in this \nopinion. \n \n \n \n \n1\n Whether the respondents are entitled to a credit under Ark. Code Ann. § 11-9-411 against \ncertain long-term disability benefits purportedly owed or payable to the claimant is \nspecifically reserved. See the Preliminary Rulings section below. \n\nRUSHANI- H303639 \n3 \n \nPRELIMINARY RULING \nOffset/Credit for Long-term Disability Benefits \n During the claimant’s cross-examination, he testified that he was entitled to receive \nbenefits from a long-term disability insurance policy. He was, however, unable to \nconfidently testify as to any specifics about the policy. \nQ:  Do you have a long-term disability policy? \n \nA:  Not that I know of. \n \nQ:  In one of the reports, one of the medical reports it says—dated 7/8 of ’24, \n“Patient did obtain his long-term disability.” \n \nA:  That was something that we sent in to work and that was what they told \nus, what we would obtain it. \n \nQ:  Did you get it? \n \nA:  As of right now, it’s still pending. \n \nQ:  What kind of disability policy is it when—you said you sent it in to work? \n \nA:  They had a disability policy. I don’t know if it was through my work or \nhow, they just asked for the documentation; so I sent it to them and I was \nsupposed to hear back from somebody. \n \nQ:  And, okay—and back in July of ’24 this happened? \n \nA:  I can’t recall the date. \n \nQ:  All right. So you do have a long-term disability and you said you’ve been \napproved? \n \nA:  As of right now, yes, but nothing has come out of it. \n \nQ:  And it’s an employer-based—through your employment, they paid for this \npolicy? \n \nA:  I’m not sure if it was through my employment or through contribution of \nwhat I paid into it. \n \nQ:  How much is this long-term disability going to pay? \n \nA:  I’m not sure. \n \n\nRUSHANI- H303639 \n4 \n \n[TR at 33-34.] \n At the close of the evidence, the discussion turned back to the long-term disability \nplan and whether the respondents were entitled to an offset. \nMr. Ryburn:  Your Honor, I just found out about this long-term disability. \nThat is something, by law, that we could get a credit for, if it’s paid for by the \nemployer and I’d like to get some kind of information for you and Gary to see \nif that’s going to be a factor in this case. \n \n. . .  \n \nMr. Davis: I object to Mr. Ryburn trying to get information into this record, \nafter today, considering that fact that he said he just found out about it, and \nhe could have found about it any time before today, and now, he wants to \nraise that as an issue that he’s entitled to some sort of credit. He doesn’t have \nany evidence that he’s entitled to a credit, because he didn’t find out about it \nbefore today, get the information before today and all the things, which he \ncould have done before today. So, I’m objecting to it. \n \nJudge:  So to be clear, what is being asked of me with regard to the potential \ncredit that might be available under some sort of policy? \n \nMr. Ryburn:  I would like to find out number one, did the employer pay for \nthe policy. Number two, is the policy, is it something that has ben awarded, \nbut they’re taking a credit for workers’ comp or whatever, and number—and \nby the way, the claimant canceled his deposition; so that is a factor to be \nconsidered also, but— \n \n. . .  \n \nMr. Davis:  Your Honor, by law, the evidence has to be presented at the \nhearing. \n \nJudge:  Okay. \n \nMr. Ryburn:  We’ve got evidence. It’s been awarded, so. \n \nMr. Davis:  We don’t have any evidence. We don’t have any evidence. \n \nJudge:  Well, his testimony wasn’t certain around it. \n \n. . .  \n \nMr. Ryburn:  I think, the law says that the claimant is supposed to disclose \nthat and it wasn’t disclosed to me. \n \nMr. Davis:  He didn’t ask him. \n\nRUSHANI- H303639 \n5 \n \n \n . . .  \nMr. Ryburn:  This doesn’t have anything to do with the wage-loss claim. This \nhas to do with the statute. It says, “Respondents...” \n \nJudge:  I see, he’s saying there’s a statutory right to an offset. \n \nMr. Ryburn:  Yes. \n \nJudge:  And that he wasn’t aware of the potential offset, until it was elicited \nin his testimony, but— \n \nMr. Davis:  Yeah, he— \n \nJudge:  I see what you’re saying also. \n \nMr. Davis:  He didn’t make himself aware. \n \nJudge:  Well, I will address that in [the] opinion... \n \n[TR at 55-58, 63.] \n As noted in the discussions above, Arkansas law provides for respondents to receive \na dollar-for-dollar credit against certain disability benefits paid to a claimant when the \npolicy is paid for by or provided with a contribution from the claimant’s employer. Ark. \nCode Ann. § 11-9-411. In Brigman v. City of West Memphis, 2013 Ark. App. 66, 2013 Ark. \nApp. LEXIS 73, the Court of Appeals held that when a respondent-employer paid a portion \nof a policy premium, the respondent-employer is entitled to an offset against indemnity \nbenefits owed by them to the extent that they contributed. The respondents have the \nburden to prove their entitlement to an offset by a preponderance of the evidence. Ark. \nCode Ann. § 11-9-705(a)(3). \n It is clear from the claimant’s testimony that a long-term disability policy and \naccompanying benefits are at play in this matter. He testified that he has not yet received \nany of the benefits that he is owed. He could not explain the specifics of the policy structure \nbeyond that his premium payments appeared to be withheld from his regular wages.  \n\nRUSHANI- H303639 \n6 \n \n The issue of whether they are entitled to an offset was not an anticipated issue in \nthis matter. The respondents’ right to an offset is established in the statute. Due to the \ninsufficiency of the evidence available in the record and at the time of the hearing, I am \nunable to fully address the matter. The issue of the respondents’ entitlement to an offset is \nnot yet ripe for adjudication. It is, therefore, reserved for further litigation. \nADJUDICATION \nThe stipulated facts are outlined above and accepted. It is settled that the \nCommission, with the benefit of being in the presence of a witness and observing their \ndemeanor, determines a witness’ credibility and the appropriate weight to accord their \nstatements. Wal-Mart Stores, Inc. v. VanWagner, 337 Ark. 443, 448, 990 S.W.2d 522 (1999). \nA claimant's testimony is never considered uncontroverted. Nix v. Wilson World Hotel, 46 \nArk. App. 303, 879 S.W.2d 457 (1994). The determination of a witness' credibility and how \nmuch weight to accord to that person's testimony are solely up to the Commission. White v. \nGregg Agricultural Ent., 72 Ark. App. 309, 37 S.W.3d 649 (2001). The Commission must \nsort through conflicting evidence and determine the true facts. Id. In so doing, the \nCommission is not required to believe the testimony of the claimant or any other witness \nbut may accept and translate into findings of fact only those portions of the testimony that \nit deems worthy of belief. Id. \nSUMMARY OF THE EVIDENCE \nThe claimant was the only witness. The record consists of the hearing transcript and \nthe following exhibits: Commission’s Exhibit No 1 (the 28 January 2025 Prehearing Order) \nand Claimant’s Exhibit No 1 (two index pages and 171 pages of medical records). \nHearing Testimony \nThe claimant is thirty-six years old. He left high school half-way through his \nsophomore year and has been working manual labor jobs since. The respondent-employer is \n\nRUSHANI- H303639 \n7 \n \nin the commercial construction business. At the time of his accepted compensable back and \nlower extremity injuries, the claimant was working as an assistant jobsite superintendent. \nHis duties included supervising various work crews and performing work alongside them. \nHe testified that the work included bending, stooping, lifting, pushing, pulling, and being \non his feet all day. His typical work week averaged between 50 and 55 hours. \nOn the day he was injured, the claimant was finishing a project at a bank building. \nHe was cleaning up and moving furniture when he felt a sudden pop in his lower back. “As I \nwent to stand up with it, I felt as if something popped and shifted in my lower back and it, \ninstantly, dropped me to my knees. I’ve never felt pain like that. I couldn’t move, couldn’t \nsit or I was in a squatting position until Jose [his supervisor] pretty much put me in the \nwork truck.” [TR at 15.] \nA report from an MRI scan on 4 May 2023 listed mild spondylosis at L5-S1 with disc \ndesiccation and a bulging disc. [Cl. Ex. No 1 at 4.] The claimant experienced severe lower \nback pain and radicular pain down his left leg. He testified that his treatment included \nphysical therapy, acupuncture, chiropractic sessions, injections, and surgery (a left-sided \ndecompression at L5-S1). An aching pain developed in the claimant’s right leg at some point \nduring the course of his treatments. A trial implantation of a spinal cord stimulator was \nperformed in early 2024, but it was removed the same day due to increased reports of pain. \nThe claimant testified that he passed all consistency measures during a Functional \nCapacity Evaluation (FCE) that placed him in a Light Classification for work. Around the \nsame time, he was advised that his job with the respondent-employer could not be held \nopen any longer. He was not offered a light-duty position or vocational rehabilitation \nservices. \nAccording to the claimant, he takes three medications everyday: Pregabalin helps \nhim with nerve pain, spasms, and cramps; Hydrocodone treats pain; and Tizanidine helps \n\nRUSHANI- H303639 \n8 \n \nhim try to sleep. He can experience side effects from the medications that include \nforgetfulness, confusion, difficulty concentrating, and restlessness. He spends most days at \nhome and is sometimes unable to get out of bed. Even on “good” days, the claimant is not \nable to be of much help around the house or with his children due to pain and difficulty \ngetting around. His wife now takes care of most housework, while they shared those \nresponsibilities before his injury. The claimant can drive; but he avoids taking Hydrocodone \nwhen he anticipates driving so that he can be more alert. He recently moved his family \nfrom the home they owned into a rental to ease the financial burden caused by his inability \nto earn an income. The family also recently re-homed their two dogs because of the \ndifficulties they encountered in continuing to care for them. \nOn cross-examination, the claimant acknowledged that he had been assigned and \npaid an eight percent (8%) impairment to the whole body in connection with his stipulated \ncompensable back injury. He denied looking for employment and said that he cannot think \nof any work that he can do. The claimant stated that he had applied for and been approved \nfor some sort of long-term disability benefit. He denied, however, that any benefits had been \npaid on that policy yet; and he was unable to explain any details about the policy beyond \nthinking that the policy premiums were part the withholdings from his paychecks. He also \ndenied asking any doctor to write a report saying that he could not or should not work. \nRespondents’ counsel asked about whether the claimant could perform some \ndifferent jobs that were listed as light-duty in publicly available postings. The claimant \nexplained the difficulties that he believed he would experience if he were working in those \nroles. They discussed a letter from Dr. Charles Clifton that suggests that the claimant \nshould not return to work because of his pain medications. [Cl. Ex. No 1 at 171.] That letter \nrefers the reader to Dr. Eugene Becker for further clarification.  \n\nRUSHANI- H303639 \n9 \n \nWhen asked whether “anything that has been done alleviated any of your pain,” the \nclaimant answered, “No.” [TR at 44.] He is very limited in his ability to participate in \nactivities in or around the home, to the detriment of his family’s overall wellbeing. He \nintends to move his family back to Illinois in the future so that they can be closer to the \nsupport of other family who live there. He explained that his family relocated to Arkansas \nafter it was recommended that they move his then-one-year-old daughter closer to \nArkansas Children's Hospital for treatment she was needing at the time. \nMedical Evidence \n An X-ray report from 4 April 2023 showed no significant findings for the claimant’s \nlumbar spine. [Cl. Ex. No 1 at 1.] He presented to Baptist’s Greenbrier Family Clinic on 20 \nApril 2023, when Dr. Charles Clifton noted the claimant’s report of severe pain in his \nlumbar spine. Dr. Clifton suspected a disc herniation at L4-5, L5-S1 and ordered an MRI \nscan. [Id. at 2-3.] The MRI report included, “IMPRESSION: Mild spondylosis at L5-S1 with \ndisc desiccation and disc bulging but no significant central canal or neural foraminal \nnarrowing.” [Id. at 4.] \n On 19 May 2023, the claimant was seen by Dr. Drew Beasley at Baptist Health \nSpine Center. According to that note: \n... He states he was lifting a heavy object at work at an awkward angle and \nstarted to have pretty severe lower back pain with radiation down the LLE. \nCalled into a[n] Urgent Care that Monday and was provided an anti-\ninflammatory and some prednisone without relief. No RLE symptoms. \nNumbness present in the LLE. He feels like he has some issues with \ndorsiflexion of the left foot. No issues in the past with his type of pain. \n \n[Id. at 6-8.] Dr. Beasley referred the claimant to physical therapy and planned a \ntransforaminal epidural injection. The procedure was performed a few days later, on 23 \nMay 2023. [Id. at 9-10.] \n\nRUSHANI- H303639 \n10 \n \n At a Spine Center follow-up on 16 June 2023, he reported no improvements with \nphysical therapy and only very short-term relief from the injection. [Id. at 34.] Dr. Beasley \nplanned to discuss the case and potential surgical options with Dr. Pervie Simpson. \nImaging ordered by Dr. Simpson showed: \n1.  Small left paracentral protrusion at L5-S1 is again identified with mild \ncontact on the descending left S1 nerve root sleeve. \n \n2.  Disc degeneration is seen with midline annular fissure and small central \nprotrusion at L5-S1, as seen on previous. \n \n[Id. at 36.] \n On 11 July 2023, the claimant saw Dr. Simpson in clinic: \nAssessment and Plan: \nI do not think that he is a surgical candidate. I am waiting for his nerve \nconduction studies. I will see him back after that [has] been completed. \nThis gentleman is worried that he is not going to be able to return to heavy \nmanual labor. I explained to him that would be his decision. He knows what \nis required of him and his job. I agree with radiology[.] I think this is a small \ndisc protrusion that really does not impinge on the S1 nerve root \nsignificantly. \n \nDiagnosis: \nLumbar radiculopathy \n \n[Id. at 42.] \n After undergoing a nerve conduction study, the claimant returned to Dr. Simpson: \n... His MRI does show a small disc fragment under the S1 nerve root and \nEMG/NCS correlates with these findings. He has completed 5 weeks of \nphysical therapy and had a TFESI with Dr. Beasley with no lasting relief. \nAfter exhausting conservative measures I discussed with him the option of a \nleft L5-S1 minimally invasive discectomy for decompression of this nerve root \nand he has elected to proceed. \n \n[Id. at 45.] \n Dr. Blake Phillips performed the discectomy procedure on 7 September 2023. The \nclaimant followed-up with physical therapy until a 6 December 2023 session when it was \n\nRUSHANI- H303639 \n11 \n \nnoted, in part, that, “Pt. pain levels have been too severe to make any progress with PT and \nat this point I do not think it is in his best interest to continue with PT.” [Id. at 96.] \n The claimant began treating with Dr. Eugene Becker at Proper Pain Solutions on 18 \nJanuary 2024. He reported his pain at a level of 7 out of 10 that day. The assessment from \nthat visit included: \n1.  Low Back Pain \n2.  Intervertebral disc w/radiculopathy, lumbar \n3.  Postlaminectomy syndrome \n4.  Other long term (current) drug therapy \n5.  Long term (current) use of opiate analgesic \n \n[Id. at 100.] At a follow-up visit on 23 February 2024, Dr. Becker suggested that the \nclaimant consider a spinal cord stimulator to help control his pain. [Id. at 104.] \n An MRI report from 22 February 2024 noted: \nIMPRESSION: \n1.  Multilevel degenerative disease. \n2.  Mild foraminal stenoses bilaterally at L3-4, on the left at L4-5, and on the \nleft at L5-S1. \n3.  No evidence of frank exiting or transiting nerve root impingement. \n4.  Normal alignment and no evidence of acute compression deformity. \n \n[Id. at 106.] \n On 22 March 2024, Dr. Becker performed a trial implantation of a spinal cord \nstimulator under fluoroscopic needle guidance. According to the notes, the claimant \ntolerated the procedure well. [Id. at 113-114.] But the claimant began experiencing severe \npain shortly after the procedure and met Dr. Becker at the emergency department later \nthat evening for removal of the stimulator leads. Id. \n On 2 April 2024, Dr. Clifton authored a letter that stated: \nAfrim Rushani has been followed up by us and Neurosurgery for the ongoing \nWorkers’ Compensation injury that has kept him out of work for an extended \ntime. The patient did have surgery that was unsuccessful and will not be able \nto return to work until he follows up with Neurosurgery as it may cause \nmuch more damage to his back until able to determine what the best course \n\nRUSHANI- H303639 \n12 \n \nof action on this is. This may be an extenuated timeframe, and we will update \n[t]he amount of time off he will need as we get updates from Neurosurgery. \n \n[Id. at 118.] Just six days later, on 8 April 2024, Dr. Clifton authored another letter: \nAfrim Rushani [has treated] for several months under my care for an injury \nto his lower back that was sustained while at work. Over the course of this \ntreatment, he has had to have several referrals placed and recently had a \nsurgery that did not improve his condition. At this time it is within my best \nmedical opinion that the patient should be considered disabled due to this \ncondition as he is on a gross amount of medication for pain management. I \nhave attached this list of medications. Please note that these medications, \nwhile not prescribed by me, are not doing much to help this patient’s \nsymptoms and pain. The patient listed above will not be able to return to \nwork in the foreseeable future until a new treatment plan can be found to \nimprove his symptoms. \n \n[Id. at 122.] \n The claimant saw Dr. Becker again on 22 April 2024. The note from that visit stated, \nin part: \nThe patient had a previous injection. The patient has undergone the \nfollowing treatments: physical therapy, acupuncture, chiropractor, brace, \nTENS unit, surgery, epidural steroid injections. The patient has had the \nfollowing tests performed: MRI. Current medications DO help with his pain. \nThere are no side effects from the medications. He ambulates without any \nassistive devices... \n. . .  \nOverall, the patient has achieved maximum medical improvement at this \ntime. So, we will schedule the patient for functional capacity evaluation to \ndetermine what his limitations are. Also in terms of logistics, the patient \nshould undergo independent medical evaluation to see if there are any \nadditional recommendations. For right now, we will manage patient’s \nmedications. He will follow up in 8 weeks. \n \n[Id. at 119, 121] \n The FCE was conducted on 29 April 2024. The claimant put forth very reliable \neffort, “with 49 of 49 consistency measures within expected limits.” [Id. at 123.] The \nevaluator concluded that the claimant “demonstrated the ability to perform work in the \nLIGHT classification of work as defined by the US Dept of Labor’s guidelines over the \ncourse of a normal 8 hour workday....” The table included in that report listed the following \n\nRUSHANI- H303639 \n13 \n \n“Demand Characteristics of Work” for the LIGHT category: Occasional (1-33% of the \nworkday; up to 2 hours, 40 minutes) 11-20 pounds; Frequent (34-66% of the workday; up to \n5 hours, 20 minutes) 1-20 pounds; Constant (67-100% of the workday; up to 8 hours) \nNegligible. [Id. at 125.] \n In subsequent visit notes, Dr. Becker repeated that the claimant had reached \nmaximum medical improvement. The notes also indicate that the claimant had obtained \nlong-term disability benefits. Then, on 26 September 2024, Dr. Clifton provided another \nletter: \nAfrim Rushani was seen in my clinic on 9/26/2024. He is under my care and \nalso Dr. Becker. He has been put off work indefinitely due to his medical \ncondition. He is under stick medication [sic] which causing him not to be able \nto drive or work any machinery. He is unable to focus or do any type of work. \nIt is not recommended for him to work at all. Please refer to Dr. Becker for \nfurther information to prove this statement. \n \n[Id. at 171.] \nDISCUSSION \nThe parties stipulated that the claimant sustained accepted compensable injuries to \nhis back and lower extremity. His back injury is unscheduled. Cf. Ark. Code Ann. § 11-9-\n521. The injury to the claimant’s lower extremity is a scheduled one under Ark. Code Ann. § \n11-9-521(a)(3). Wage-loss benefits are only available in relation to unscheduled injuries, \nlike the claimant’s stipulated back injury. See Federal Compress & Whse. v. Risper, 55 Ark. \nApp. 300, 935 S.W.2d 279 (1996). His claim for wage-loss benefits must, therefore, be \nevaluated only in relation to his stipulated compensable back injury. \nWage Loss \nThe wage-loss factor is the extent to which an injured worker’s compensable injury \nnegatively impacts that person’s ability to earn a livelihood. Rice v. Ga.-Pacific Corp., 72 \nArk. App. 148, 35 S.W.3d 328 (2000). “In considering claims for permanent partial disability \n\nRUSHANI- H303639 \n14 \n \nbenefits in excess of the employee's percentage of permanent physical impairment, the \nWorkers' Compensation Commission may take into account, in addition to the percentage of \npermanent physical impairment, such factors as the employee's age, education, work \nexperience, and other matters reasonably expected to affect his or her future earning \ncapacity.” Ark. Code Ann. § 11-9-522(b)(1). A claimant’s motivation to return to work may \nbe considered also. Rice, supra. If a work-related injury combines with a preexisting disease \nor condition or the natural process of aging to cause or prolong the disability or need for \ntreatment, permanent benefits shall be payable for the resultant condition only if the \ncompensable injury is the major cause of the permanent disability or need for treatment. \nArk. Code Ann. § 11-9-102(4)(F)(ii)(a). Major cause means something that is more than fifty \npercent (50%) of the cause. Ark. Code Ann. § 11-9-102(14)(A). \nThere is no exact formula for determining a claimant’s wage loss. Hixon v. Baptist \nHealth, 2010 Ark. App. 413, 375 S.W.3d 690. To be entitled to any wage-loss disability in \nexcess of an impairment rating, the claimant must prove by a preponderance of the \nevidence that he sustained a permanent physical impairment as the result of a \ncompensable injury. Wal-Mart Stores, Inc. v. Connell, 340 Ark. 373, 326 S.W.3d 415. \n The claimant is thirty-six years old, with a wife and two children. He does not have \na college education or even a high school diploma. He has worked as a construction laborer \nsince his teens. The claimant’s family relocated from Illinois to Central Arkansas to be close \nto treatment available at Arkansas Children’s Hospital that his daughter required in the \npast. While his most recent job with the respondent-employer included some supervisory \nresponsibilities, the claimant still performed physical labor alongside the various crews he \nwas responsible for overseeing. He has few skills that would translate outside of physical \nlabor on a construction project site. \n\nRUSHANI- H303639 \n15 \n \n Multiple conservative therapies were not successful in moderating the claimant’s \npain. He experienced little relief from a discectomy procedure and believes that he feels \nconstant aching in his leg as a result of the scar tissue that resulted from that surgery. A \nspinal cord stimulator trial failed within hours after implantation and had to be removed \nemergently. The records do not reflect any other surgical options that are likely to provide \nrelief from the claimant’s constant pain. Multiple letters from Dr. Clifton state that the \nclaimant’s ability to work is very limited because of his pain management medication and \nthat he should be considered disabled due to his symptoms and/or side effects from his \nmedication.  \n While the claimant’s FCE put him in the Light Classification, he testified to his \nperceived difficulty in performing jobs that fall into that category. He acknowledged not \nseeking any work since he was let go from his job with the respondent-employer, and I do \nnot find him to be very motivated to return to the workforce. I believe that this is likely \nbecause of his lack of experience and unfamiliarity with anything outside of the realm of \nphysical labor and on-site construction work. Nonetheless, I believe his explanation about \nthe difficulties he and his family have experienced because of his inability to work in the \nonly trade he has ever known. The claimant testified that he did not take some of his pain \nmedication on the day of the hearing (1) so he would be more alert driving between his \nhome in Greenbrier and Little Rock and (2) so he was less likely to experience some of the \nfogginess and forgetfulness that he sometimes experiences on his medication. Having not \ntaken some of his usual medication, he was clearly in pain and struggled to find any seated \nposition that he could maintain for any length of time. His limitations on some or all of his \nmedication will make his return to work difficult even in the Light Classification. \nThe record shows that an eight percent (8%) whole-body impairment rating was \nassigned to the claimant and paid by the respondents in connection with the claimant’s \n\nRUSHANI- H303639 \n16 \n \nstipulated compensable back injury. The issue here is whether the claimant is entitled to \nany wage-loss benefits over and above his assigned and accepted rating. I find that the \nclaimant proved by a preponderance of the evidence that he is entitled to a wage-loss \nbenefit of ten percent (10%) in excess of his impairment rating. I also find that his \nstipulated compensable back injury is the major cause of the wage loss.  \nAttorney’s Fee \nThe claimant has proven by a preponderance of the evidence that he is entitled to \nwage-loss benefits. He has consequently proven by a preponderance of the evidence that he \nis entitled to an attorney’s fee on the benefits awarded in this opinion. \nCONCLUSION & AWARD \n The claimant has proven his entitlement to the indemnity benefits outlined above. \nThe respondents are directed to provide benefits accordingly. All accrued amounts shall be \npaid in a lump sum without discount, and this award shall earn interest at the legal rate \nuntil paid. Ark. Code Ann. 11-9-809. See Couch v. First State Bank of Newport, 49 Ark. App. \n102, 898 S.W.2d 57 (1995). \n The claimant’s attorney is entitled to a twenty-five percent (25%) fee on the benefits \nawarded herein. One-half (1/2) of the fee is to be paid by the claimant, and one-half (1/2) of \nthe fee is to be paid by the respondents, consistent with A.C.A. §11-9-715. See Death & \nPermanent Total Disability Trust Fund v. Brewer, 76 Ark. App. 348, 65 S.W.3d 463 (2012). \n IT IS SO ORDERED. \n       ______________________________________ \n       JayO. Howe \n       Administrative Law Judge","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM No H303639 AFRIM RUSHANI, EMPLOYEE CLAIMANT NBMC, INC., EMPLOYER RESPONDENT TRAVELERS INDEMNITY CO. OF CT, CARRIER/ THE TRAVELERS INDEMNITY CO., TPA RESPONDENT OPINION & ORDER FILED 26 JUNE 2025 Heard before Arkansas Workers’ Compensation Commission Administrat...","fetched_at":"2026-05-19T22:40:08.658Z","links":{"html":"/opinions/alj-H303639-2025-06-26","pdf":"https://www.labor.arkansas.gov/wp-content/uploads/RUSHANI_AFRIM_H303639_20250626.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}