{"id":"alj-H304408-2025-02-07","awcc_number":"H304408","decision_date":"2025-02-07","opinion_type":"alj","claimant_name":"Charles Anderson","employer_name":"White Hall School District","title":"ANDERSON VS. WHITE HALL SCHOOL DISTRICT AWCC# H304408 February 07, 2025","outcome":"granted","outcome_keywords":["granted:6"],"injury_keywords":["back","herniated","lumbar"],"pdf_url":"https://www.labor.arkansas.gov/wp-content/uploads/ANDERSON_CHARLES_H304408_20250207.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"ANDERSON_CHARLES_H304408_20250207.pdf","text_length":36571,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM No H304408 \n \nCHARLES ANDERSON, EMPLOYEE       CLAIMANT \n \nvs. \n \nWHITE HALL SCHOOL DISTRICT,  \nSELF-INSURED EMPLOYER                  RESPONDENT \n \nARKANSAS SCHOOL BOARDS ASSOC., TPA         RESPONDENT \n \n \n \nOPINION & ORDER FILED 7 FEBRUARY 2025 \n \n \nThis claim was heard before Arkansas Workers’ Compensation Commission (AWCC) \nAdministrative Law Judge JayO. Howe on 14 November 2024 in Pine Bluff, Arkansas. \n \nThe claimant was represented by the Wren Law Firm, Mr. Daniel E. Wren. \n \nThe respondents were represented by Worley, Wood & Parrish, Ms. Melissa Wood. \n \nSTATEMENT OF THE CASE \n \n The parties participated in a prehearing conference on 27 August 2024. A \nPrehearing Order was entered the same day. On the day of the hearing, that Order was \nentered into the record without objection as Commission’s Exhibit No 1. As outlined in the \nPrehearing Order, the parties agreed to the following: \nSTIPULATIONS \n 1. The AWCC has jurisdiction over this claim. \n2. The self-insured employer/employee/TPA relationship existed at all relevant \ntimes, including 3 April 2023, when the claimant suffered an accepted \ncompensable injury to his back. \n \n3. At the time relevant to this matter, the claimant was earning an average \nweekly wage of $820.20 per week, which would entitle him to compensation \nrates of $547 and $410 per week for Temporary Total Disability (TTD) and \nPermanent Partial Disability (PPD), respectively. \n \n\nANDERSON- H304408 \n2 \n \n4. The claimant has been assigned a permanent disability rating of 7% to the \nbody as a whole. \n \nISSUES \n1. Whether the claimant is entitled to permanent and total disability benefits \nor, in the alternative, wage loss disability benefits.\n1\n \n \n 2. Whether the claimant is entitled to an attorney’s fee. \n All other issues are reserved. \nCONTENTIONS \n The claimant contended that he “is not able to return to his current employment and \ntherefore is entitled to wage loss.” \n The respondents contended that “all appropriate benefits have been and are \ncontinuing to be paid with regard to this matter.” \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \nHaving reviewed the record as a whole, including the evidence summarized below, \nand having heard testimony from the witnesses, observing their demeanor, I make the \nfollowing findings of fact and conclusions of law under ACA § 11-9-704: \n1. The AWCC has jurisdiction over this claim. \n2. The stipulations as set forth above are accepted. \n3. The claimant has proven by a preponderance of the evidence that he is \nentitled to permanent and total disability benefits. \n \n4. The claimant has proven by a preponderance of the evidence that he is \nentitled to an attorney’s fee under A.C.A. § 11-9-715 on the indemnity \nbenefits awarded in this Opinion. \n \n \n1\n The Prehearing Order indicated that the claimant intended to seek only wage loss \ndisability benefits at the hearing. Before going on the record, and then again once on the \nrecord, Claimant’s counsel stated that between the entry of the Prehearing Order and the \nhearing, the claimant’s circumstances had changed. He notified the respondents that he \nintended to seek permanent and total disability benefits at the hearing and that wage loss \nbenefits would be sought in the alternative. The respondents did not object to that \namendment of the issues. \n\nANDERSON- H304408 \n3 \n \nSUMMARY OF THE EVIDENCE \n The claimant and Cecilia Brunson, a vocational consultant called by the \nrespondents, testified at the hearing. \n The record consists of the hearing transcript and the following exhibits: \nCommission’s Exhibit No 1 (the Prehearing Order); Claimant’s Exhibit No 1 (three index \npages and 43 pages of medical records); Respondents’ Exhibit No 1 (an index page and three \npages of medical records); and Respondents' Exhibit No 2 (an index page and 14 pages of \nnon-medical records, including Cecilia Brunson’s resume’ and reports that she authored). \nTESTIMONY \n  Claimant Charles Anderson \nThe claimant is fifty-eight years old. He has a high school diploma, a drywall \ncertificate from 1996, and general knowledge of electrical, plumbing, HVAC, painting, and \nroofing work. He testified that he worked for the respondent-employer for about six months \nas a maintenance man. His duties included maintaining the school district’s buildings and \nstructures, with regard to “electrical, plumbing, painting, drywall, HVAC... whatever came \nup.” \n On 3 April 2023, the claimant injured his back while leaning into the rear of a van to \nlift a box of ceiling tiles. He has been unable to work since. The respondents accepted his \nback injury claim as compensable and began providing benefits. \n The claimant received treatment with Trent Tappan, PA-C, at OrthoArkansas and \nwas eventually diagnosed with a herniated disc. His care included some injections, which \nhe said provided some temporary relief. Surgical options were discussed, but the claimant \nwas reluctant to undergo any operation based on his understanding of friends and family \nwith back problems that did not have good post-surgical outcomes. According to the clinic \nnotes, Mr. Tappan agreed with his decision not to attempt corrective surgery. \n\nANDERSON- H304408 \n4 \n \nThe claimant eventually underwent a Functional Capacity Evaluation (FCE). He \ntestified that he did not tolerate the physical exertion of the testing well. Unrelated to his \nback injury, the claimant underwent treatment for cancer in his stomach around the same \ntime. Part of that treatment included medication for pain. His primary cancer treatments \nconcluded on 27 August 2024; but he testified that he continues to receive treatment every \ntwo months to reduce the risk of recurrence. He attributed some ongoing fatigue to his \ncancer treatments.  \n The claimant’s cancer doctor ordered a rollator, which he still uses on occasion. He \nappeared at the hearing with a cane, which he uses on a daily basis. The claimant testified \nthat his back injury causes constant pain. On a scale of zero to ten, his pain can go up \ntowards a ten. He is most comfortable when laying down and must lay down frequently \nthroughout the day to reduce his pain. He described the baseline pain he experiences when \neven laying down as a six out of ten. He also described experiencing some numbness and \nweakness in his legs that he relates to his back injury. Sudden weakness in his legs has \ncaused him to fall on occasion. \n According to the claimant, he needs some help getting dressed in the mornings \nbefore moving to a recliner. He denies being able to do most household chores or mow his \nyard. After about 30 minutes of sitting in his recliner, he becomes uncomfortable and needs \nto move around or change positions. He is able to find relief at times sitting in a chair at his \nkitchen table, but he often needs to lay down in bed due to pain and discomfort. According \nto his testimony, the claimant often spends about half of the day lying in bed. He has \nrecently been unable to perform his ordinary duties as a deacon in his church because he \ncannot sit and move about the church during the services, which usually last two-and-a-half \nhours or so. The claimant testified that he began treating with a pain management doctor \nthe day before the hearing. \n\nANDERSON- H304408 \n5 \n \nBefore he began working for the respondent-employer, the claimant worked as a \nmaintenance supervisor at Saracen Casino. In that role he managed the work assignments \nof a crew of twelve workers and provided as-needed assistance in their assigned tasks \nthroughout the day. The claimant explained that he used a computer-based workflow \nmanagement system to direct assignments to his employees. He denied, however, that he is \ngenerally knowledgeable of computers. Before leaving Saracen, he also worked as a food \nand beverage supervisor, managing the stocking and service at some of the bar areas. \nThe claimant explained that his general electrical knowledge includes wiring sockets and \nreplacing light fixtures, while his plumbing experience includes working under sinks, drain \ncleanouts, and the like. His other jobs include working as a maintenance supervisor at a \ndrug distribution company and working as a self-employed handy man. \n The claimant stated that he has worked in physical maintenance jobs for his entire \ncareer; but he is not licensed in any of the manual labor fields in which he has worked. He \nalso testified that he has never worked in an office or in a sedentary job setting. He would \nlike to be working. The claimant became visibly upset when trying to explain how being \nunable to return to work and being unable to earn a living since his injury have impacted \nhis life. Not being able to work has worn on his mental state and caused tension in his \nmarriage. \nAt some point between his deposition and the hearing, the claimant began receiving \nSocial Security Disability benefits. On his application for those benefits, he listed his back \ninjury and cancer as the reasons for his disability. He denied any other sources of income. \n Respondent’s Witness Cecilia Brunson \n Ms. Brunson testified that she is a vocational consultant who, among other things, \ncompiles job reports and labor market surveys. She also assists injured workers with \n\nANDERSON- H304408 \n6 \n \ngetting back into the workforce. The respondents offered her as a vocational expert, and the \nclaimant agreed to the same. \n The claimant and Ms. Brunson met over the telephone to discuss his injury, work \nhistory, education, and his treatment plan, along with his daily living activities. She \nsubsequently authored two reports related to her opinion on his ability to return to work \nand potentially suitable job opportunities. Ms. Brunson said that jobs in the sedentary \nclassification would require sitting for six out of eight hours per workday. She believed that \nthe claimant could find work in “sedentary jobs that involve a high school diploma, little or \nno work experience, with on-the-job training and working with the public.” [TR at 52.] She \ntestified that his being able to speak and get along well with others were among the \ntransferable skills he carried from his previous career. Ms. Brunson also felt like the \nclaimant had basic computer skills. She acknowledged, however, that the claimant’s age \nwould likely make for “significant” vocational adjustments in learning new skills. \nMs. Brunson offered to help the claimant with building a resume’ and interviewing \nskills, but he had not taken her up on that offer at the time of the hearing. She explained \nthat she assumed there was no need to follow up with him because she knew that the claim \nwas progressing towards a hearing. \n On cross-examination Ms. Brunson said that they did not discuss whether the \nclaimant could actually sit for six hours out of the day. \nQ:  And if he can’t sit six hours out of a day, that would eliminate these \nsedentary jobs that you have listed, is that correct? \nA:  That’s correct. \nQ:  Okay. And if he had to get up, move around, and take frequent \nunscheduled breaks because of his pain, would that eliminate these jobs and \nany other jobs in the national economy? \nA:  Okay. So let me add this, an accommodation—if an accommodation was \napproved, if he needed to sit and stand, then, it would be up to the employer. \nIt’s possible that they would put those in place. \nQ:  If he got an accommodation? \nA:  Absolutely, if he got an accommodation. \n\nANDERSON- H304408 \n7 \n \nQ:  But without an accommodation, he couldn’t work any jobs in the national \neconomy, if he had to take frequent and unscheduled breaks due to pain? \nA:  That is correct. \nQ:  Okay. And can attendance affect a person’s ability to have—maintain a \njob? \nA:  Yes. \nQ:  In your deposition, I asked if a person was to miss more than one day per \nmonth, more than 12 days per year, do you know of any jobs Mr. Anderson—\nif her were to miss 12 days of work per year, because of his pain, are there \nany jobs in the national economy that he could do? \nA:  Would this be... unscheduled leave? \nQ:  This would be calling in sick. \nA:  Okay. \nQ:  More than once a month. Are there any jobs in the national economy he \ncould take? \nA:  No. \n \n[TR at 57.]  \nQ:  If he needs to sit or recline—or recline throughout the day, are there any \njobs in the national economy he can have unless an employer makes a special \naccommodation? \n... \nA:  No jobs. \n \n[TR at 64.] \n Ms. Brunson testified that she had not spoken with the claimant since their \ntelephone meeting, but at the time they spoke he was taking hydrocodone his oncologist \nprescribed to help with his pain. She was aware that he was being referred to a pain \nmanagement doctor for chronic pain care and had not yet had that appointment at the time \nof their call. She testified that some jobs could allow the use of narcotic pain medication \nwhile working. Ms. Brunson further testified that she recalled the claimant had just ended \nhis chemotherapy when they spoke and that he did not feel ready to go back to work at that \ntime. \n Further Testimony from the Claimant \n The claimant disagreed with Ms. Brunson’s understanding of his computer \ncompetency and explained that his familiarity with computers is mostly limited to the \n\nANDERSON- H304408 \n8 \n \nworkflow functions he was taught to use for his job at Saracen. That involved opening a \nscreen that listed the day’s work needs, assigning employees to the tasks, reviewing \ncompleted work, and printing off a daily report for his supervisor. He denied more general \nfamiliarity with using computers and stated that his grandchildren had made unsuccessful \nattempts to teach him to learn more about computers so he could navigate the internet and \nentertain himself throughout the day. \nThe claimant explained that he was not ready to consider new employment when he \nspoke with Ms. Brunson.  \nA:  Because at that time, I also had—kind of was finishing up on my cancer, \nplus I had my back issues; so I—at that meeting, I made that statement, \nbecause [I was], actually, sick and I wouldn’t want to try to get a job and \nknow I wouldn’t be able to perform that job. I mean, even if I said that I can \ndo this or my qualifications, they want to hire me, you know, but as far as \ndoing—actually, doing the job and I know that state I’m in, because I had \ncancer... and finishing up, then, I still go this back problem to deal with.  \n \n[TR at 80.]  \n. . .  \nQ:  Do you feel like you have barriers to keep you from trying to find a job in \nthat sedentary class now? \nA:  Yes, because I can’t do regular household work. \nQ:  Right. \nA:  You know, I can’t sit too long, stand too long. Just like now, I have to do \ncertain movements just to get some relief, but it’s not completely relief; so I \nreally wouldn’t want to waste nobody else’s time to try to go and know I can’t, \nthe problems I’m having at home on a day-to-day basis. \n \n[TR at 81.] \nThe claimant disagreed with the FCE qualifying him for sedentary positions and \nwith Mr. Tappan’s return-to-work release. He also explained that he was only benefitting \nfrom temporary relief from injection therapy at the time of his release without any \nrestrictions and last visit with Mr. Tappan. In the absence of effective treatment options for \nhis back injury, his overall condition has deteriorated in the time since his release. \n\nANDERSON- H304408 \n9 \n \n Medical and Documentary Evidence \n The claimant first saw Mr. Tappan at OrthoArkansas on 12 July 2023. The note \nfrom that visit provides: \nASSESSMENT/PLAN \nI have reviewed the X-rays of the lumbar spine, which were mild \ndegenerative changes. \nI had a long visit [with the claimant]. This poor man is miserable. He has had \na lot of severe pain in his back and leg for 3 months. He has not been able to \nwork because of the degree of pain. He has difficulty ambulating in the exam \nroom. I told him I would give him some more pain medication to have on \nhand. I prescribed to keep him off work for now until he returns. I would \nrecommend an MRI of his lumbar spine for further evaluation. Hopefully we \ncan get this done sooner rather than later. I suspect he has a disc herniation \nand if he does I also suspect he is going to need this treated likely with \nsurgery based on his presentation. Hopefully we get this done soon for him to \nget the MRI so that we can get him on the path to recovery. He says that he \nhas not been able to work in 3 months [and cannot pay his bills]. \n \n[Cl. Ex. No 1 (emphasis added unless noted otherwise).] \n The findings from a 14 July 2023 MRI scan included: \nL1-L2: Broad disc protrusion with bilateral subarticular and left greater than \nright foraminal component. Effacement of the exiting left L1 nerve root from \nforaminal disc protrusion. Likely effacement of the traversing left L2 nerve \nroot from subarticular disc protrusion. No spinal canal stenosis. Severe left \nneural foraminal stenosis. Mild right neural foraminal stenosis. \n \nL2-L3: Mild broad disc protrusion with bilateral subarticular and left greater \nthan right foraminal components. Mild bilateral facet osteoarthritis and \nligamentum flavum thickening. No spinal canal stenosis. Moderate left and \nright neural foraminal stenosis. \n \nIMPRESSION  \n \n1. At L1-L2, there is a broad disc protrusion with bilateral subarticular and \nleft greater than right foraminal components. Effacement of the exiting left \nL1 nerve root from foraminal disc protrusion. Likely effacement of the \ntraversing left L2 nerve root from subarticular disc protrusion. Recommend \ncorrelation for radiculopathy. \n \n2. At L2-L3, there is moderate left and mild right neural foraminal stenosis. \n \n\nANDERSON- H304408 \n10 \n \n3. Diffusely heterogeneous marrow signal, nonspecific. This can be seen with \nanemia or marrow conversion/myeloproliferative disorders. Clinical \ncorrelation is recommended. \n \n On 14 July 2023, Mr. Tappan noted a herniation of the nucleus pulposus and the \nfollowing: \nASSESSMENT/PLAN \nI reviewed the X-rays of the lumbar spine which reveal degenerative changes. \nI reviewed the MRI which reveals disc herniation at L1 to the left in the \nforamen with L1 nerve root impingement. \n \nI suspect Mr. Anderson is symptomatic from a disc herniation at L1-2 on the \nleft. He has a bit of L1 distribution pain in his left groin and thigh and down \nhis anterior thigh as well. Unfortunately, I do not think this is going to be an \neasy solution. I would say with a reasonable degree of medical certainty that \nthis disc herniation was rendered symptomatic from the injury involved at \nwork. However, unfortunately it is in the foramen, so I told him I do not \nthink surgery would be very straightforward. I suspect he [would] need a \ncomplete facetectomy to decompress the nerve root and interbody posterior \nfusion to address the instability from the facetectomy. I also told him I think \nthat would be a bit complicated at the level L1-2 right below the \nthoracolumbar injunction. We discussed more specific nonoperative \ntreatment. I would recommend a transforaminal epidural steroid injection at \nL1-2 on the left. I am hopeful maybe this will calm down his inflammatory \nsymptoms. I am also going to release him to light sedentary office work. They \nmay not be able to accommodate this. But I would like for him to be able to \nget out of the house and at least return to some kind of employment for the \ntime being. We will get this set up and I will see him back when the injection \nis complete. \n \n The claimant then returned to see Mr. Tappan on 18 August 2023. \nASSESSMENT/PLAN \nI had a very long visit with Mr. Anderson today about his symptoms and \nimages. I think he remains very symptomatic [from] the L1-2 level of his \nlumbar spine. We had a long conversation about further treatment options. \n[They discussed (1) no more treatment, (2) trying more injections, or (3) \nattempting a fusion surgery.] He really does not want to have surgery. He \nwants to try to avoid a fusion, and I think that is understandable. However, \nhe is also very symptomatic. He is doubtful that he is going to be able to \nreturn back to his regular occupation despite the treatment offered him and I \nthink that is actually somewhat understandable. He wants to consider \ndisability, and I told him that is up to him and his option. I do not want to \nput him through aggressive treatment or surgery if it’s not going to change \nthe overall outcome of his quality of life. And especially if he just does not \n\nANDERSON- H304408 \n11 \n \nwant to go that route. He wants to try another injection, which I think is fine. \nAs for now, I am going to keep him on his current work restrictions. We will \nset up a second injection at L1-2 on the left. I told him I would plan to see \nhim back after the injection and placement at maximum improvement and \nrelease him at that time. \n \n The claimant returned to OrthoArkansas and Mr. Tappan again on 2 November \n2023. The note from that visit provides: \nASSESSMENT/PLAN \nMr. Anderson returns after getting another transforaminal epidural steroid \ninjection at L1-2 on the left. This did help him quite a bit. He is doing better \ntoday. He still has some pain, but he is improved quite a bit I believe from \nwhere he began although he is still symptomatic. We had a long visit about \nfurther options. I think he is being rendered symptomatic from this disc \nherniation at L1-2 on the left. This was likely the result of this work-related \ninjury. We discussed some further treatment options. I told Mr. Anderson \nthat I think if he had surgery, he would likely need a facetectomy and a \nfusion. He really does not want to have surgery, and I would agree with that. \nI do not think it would be the overall best care homerun for him. It would be \nan option [...] but I agree with him right now. I [would leave] this alone. He is \nimproving and I think this will continue to improve. I do not think there is \nany need to repeat any more injections at this point. I plan to just release him \nand to place him at maximal medical improvement and release him to work \nwithout restrictions. But I will calculate an impairment rating based on the \ndisc herniation and a letter to follow. I will just see him back as needed. \n \n Mr. Tappan authored a letter on 3 November 2023 that assigned a seven percent \n(7%) impairment of the whole person based on the disc herniation at L1-2. \n The claimant underwent an FCE on 19 April 2024. His effort was evaluated as \nreliable, as he passed 46 of 46 consistency measures. He presented for the testing with a \ncane and utilized his cane throughout the testing. Although he was prescribed pain \nmedication at the time of his evaluation, he advised the evaluator that he had not taken the \nmedication on the day of his testing because it made him drowsy. The report indicates the \nclaimant’s expressed inability to do housework or yard work and his difficulty with \nstanding, lifting, and bending, among other things. He was assessed as being able to work \nin a sedentary job classification. \n\nANDERSON- H304408 \n12 \n \n The vocational evaluation and job market reports compiled by Ms. Brunson were \nincluded in Respondents’ Exhibit No 2. Her evaluation and report include the following: \nEMPLOYMENT HISTORY \nBuilding Maintenance Repairer (DOT #899.381-010 – a skilled occupation \nclassified in the medium category of physical work demands) [...] He reported \nhis job duties included reviewing work orders, performing electrical repairs to \nbuildings and equipment, roofing repairs, landscaping, plumbing repairs, \ncarpentry, ceiling repairs, painting, and some HVAC repairs. \n \nMr. Anderson reported working as a Building Maintenance Repairer at \nJefferson Regional Medical Center from 1990 to 1991 and at the Excelsior \nHotel from 1997 to 1998. He reported the job duties were the same as stated \nabove. \n. . .  \nMaintenance Supervisor (DOT #891.137.010 – a skilled occupation classified \nin the light category of physical work demands) Mr. Anderson reported he \nwas employed at Saracen Casino from August 2019 to October 2022. He \nreported his job duties included reviewing work orders, assigning work orders \nto employees, supervising up to ten employees, input work orders into the \ncomputer system, input status updates of work orders, assisting employees \nwith the completion of work orders involving some HVAC, plumbing, \nlandscaping, and other maintenance concerns that would arise. \n \nMr. Anderson reported working as a Maintenance Supervisor at Pine Bluff \nNursing Home, Arkansas Convalescent, and Davis Nursing Home at various \ntimes between 1980 and 2020. \n \nANALYSIS, GOALS, AND RECOMMENDATIONS \n \nBased on Mr. Anderson’s transferable skills, functional ability, records \nreviewed of his injury and past work history, he is capable of working within \nthe sedentary category of physical work demands. Recommendations for \nvocational rehabilitation services will include drafting a resume’, completing \na follow-up meeting to provide interview skills training and preparation, \nassist him with any online job application for which he needs assistance, and \nbegin completing regular job market research in his local area. The job \nmarket research will identify current job openings for which he can apply \nwith the eventual goal of returning to the workforce to a new occupation. \n \nThe job market research reports of 25 August 2024 and 18 September 2024 included, \namong some others, job openings for administrative assistants, customer service \nrepresentatives, administrative specialists, and receptionists. \n\nANDERSON- H304408 \n13 \n \nADJUDICATION \n As noted above, the claimant seeks a finding that he has been rendered permanently \nand totally disabled as a result of his compensable back injury. In the alternative, he seeks \nan award of wage loss disability benefits. \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. \nAs an initial matter, I find the claimant to be a very credible witness. He presented \nas sincere in testifying about his physical limitations and about the difficulty he \nexperiences getting through most days. \nA. THE CLAIMANT IS ENTITLED TO PERMANENT AND TOTAL \nDISABILITY BENEFITS. \n \nIt is not disputed that the respondents have accepted the claimant’s back injury as \ncompensable and have already paid some associated benefits, including permanent partial \ndisability benefits on his seven percent (7%) rating to the whole person. The claimant now \nseeks permanent and total disability benefits for that injury. Under Arkansas law, \n\nANDERSON- H304408 \n14 \n \n“permanent total disability” means an “inability, because of a compensable injury or \noccupational disease, to earn any meaningful wages in the same or other employment.” \nA.C.A. § 11-9-519(e)(1). The burden of proof is on the employee to prove his inability to earn \nany meaningful wages in the same or other employment. Id. § 11-9-519(e)(2). Permanent \ntotal disability must be determined in accordance with the facts. Id. § 11-9-519(c). \nWhen a claimant has been assigned an anatomical impairment rating to the body as \na whole, the Commission has the authority to increase the disability rating, and it can find \na claimant totally and permanently disabled based upon wage-loss factors. Milton v. K-Tops \nPlastic Mfg. Co., 2012 Ark. App. 175, 392 S.W.3d 364. Those factors include the claimant’s \nage, education, work experience, and other matters reasonably expected to affect his future \nearning capacity. A.C.A. § 11-9-522(b)(1). A claimant’s motivation to return to work may \nalso be considered. Milton, supra. \nThe law provides: \n(a)  Permanent benefits shall be awarded only upon a determination \nthat the compensable injury was the major cause of the disability or \nimpairment. \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 \nor a need for treatment, permanent benefits shall be payable for the \nresultant condition only if the compensable injury is the major cause \nof the permanent disability or need for treatment. \n \nA.C.A. § 11-9-102(4)(F)(ii). A “major cause” is more than fifty percent (50%) of the cause and \nmust be established by a preponderance of the evidence. A.C.A. § 11-9-102(14). \n Here, the claimant is a fifty-eight-year-old man with a high school diploma who has \nbeen unable to return to work since his 3 April 2023 injury. He has labored most of his life \nin physical maintenance jobs, but he is not actually licensed in any of the trades for which \nhe has basic working knowledge. He has some supervisory experience, but those roles \nincluded working alongside the tradesmen and maintenance crews he was tasked with \n\nANDERSON- H304408 \n15 \n \nsupervising. His current physical limitations render him unable to perform basic household \nchores, let alone any number of tasks expected of someone working in physical building \nmaintenance. \n Per Tappan, the MRI revealed the claimant to have suffered a disc herniation at L1-\n2 with nerve impingement. The medical records clearly relate the claimant’s condition to \nhis accepted compensable back injury. I credit Mr. Tappan’s opinion on the nature and \norigin of the claimant’s symptoms. Poulan Weed Eater v. Marshall, 79 Ark. App. 129, 84 \nS.W.3d 878 (2002). \nMr. Tappan noted that the claimant was rendered miserable by his symptoms. He \nalso agreed with both the claimant’s concern about his ability to return to work and the \nclaimant’s reluctance to attempt surgical repair, as the benefits were not likely to outweigh \nthe risks (“I do not want to put him through aggressive treatment or surgery if it’s not going \nto change the overall outcome of his quality of life”). While the claimant’s injury is \nsignificant, he is not a good candidate for surgery. Mr. Tappan hoped that the claimant’s \ncondition might improve with some injection therapy; but those benefits did not \nmaterialize. The claimant’s initial relief from injection therapies was only temporary; and \nhe is now seeking ongoing pain management care for his chronic back pain. The claimant’s \nrelease with a seven percent (7%) whole-body impairment rating was consistent with his \ndisc herniation diagnosis; but his ability to function with that condition is more profound \nthan the numerical rating implies. That the claimant was released without physical \nrestrictions belies that his injury and resultant condition has rendered him with significant \nphysical limitations. \n The breadth of the claimant’s limitations is illustrated in the FCE report, which \nessentially found that while he could not work in any capacity that required moving about, \nlifting, bending, twisting, or carrying things (all required activities for one working in \n\nANDERSON- H304408 \n16 \n \nbuilding maintenance), he could possibly work from a mostly seated position. At the outset \nof the FCE, however, the claimant rated his pain while sitting for 30 minutes as “severe.” \nHe also rated his ability to sit through a workday as being with “much difficulty.” While he \nwas assessed as being able to sit at the “constant” level in his evaluation, the observational \nportions of the report frequently note that he was only sitting in order to take a break from \nthe various tasks and activities being evaluated. His ability to sit continuously and work for \nany extended period of time does not appear to have been explicitly observed. The reliability \nof his effort in the testing (passing 46 out of 46 consistency measures) as judged by his \nevaluators, is not inconsistent with his reliability as a witness in this matter as judged by \nme. \n The claimant testified that when he spoke with Ms. Brunson, towards the end of his \ncancer treatment, he did not feel well and was not yet in a position to return to working. He \nreported dealing with significant fatigue during his primary course of treatments. While his \nfatigue has mostly resolved since the completion of those treatments, his overall fitness to \nreturn to work has not improved. He continues to suffer from severe back pain (more so in \nthe absence of any prescription pain medication since his cancer treatments ended) and \nstruggles to find a comfortable position throughout the day, frequently adjusting how he is \nsitting or where he is sitting; but he most often must resort to lying down in order to seek \nrelief from the constant pressure on his herniated disc. And even when lying down, he still \nrates his pain at a six out of ten. This is understandable given the nature and nerve \ninvolvement of his lumbar disc injury.  \n The claimant’s prospects for re-entering the workforce in a new career field are \nmarginal at best. At nearly 60 years old with little education, profound mobility limitations, \nand bare computer competency, he is not likely to be able to transition into even a \nsedentary administrative assistant or receptionist role, similar to those presented in the job \n\nANDERSON- H304408 \n17 \n \nmarket reports. He has never worked in an office and is unfamiliar, even, with what such \nwork typically entails. His relatable skill deficits aside, the respondents’ own vocational \nexpert credibly testified that the claimant’s inability to work from even a seated position for \nan extended period of time, his requiring frequent and unscheduled breaks, and his \npotential (if not likely) need for absences due to pain intolerance essentially render him not \nhirable even in sedentary jobs. She also acknowledged that his advanced age makes for a \nsignificant retraining barrier. At the time that they spoke, he knew that his cancer \ntreatment was an additional barrier to beginning any new job. With those difficulties \nbehind him, the claimant still faces an unmanageable barrier in the pain and immobility \ncaused by his compensable back injury. \n I find the claimant’s preference for being able to return to work and earn a wage to \nbe sincere. I also find, however, that the preponderance of the evidence shows that his \ncompensable back injury has rendered him unable to do so and that his compensable back \ninjury is the major cause of his disability. He has, therefore, established his entitlement to \npermanent and total disability benefits. \n B. THE CLAIMANT IS ENTITLED TO AN ATTORNEY’S FEE. \n The respondents have controverted the claimant’s entitlement to the permanent and \ntotal disability benefits awarded herein. They are, therefore, liable for the allowable fees \nassociated with this litigation. The claimant is entitled to an attorney’s fee under A.C.A. § \n11-9-715 on the indemnity benefits awarded in and consistent with this Opinion. \nCONCLUSION AND AWARD \n The claimant has proven his entitlement to permanent and total disability benefits \nas a result of his compensable back injury. The respondents are directed to provide benefits \naccordingly. All accrued amounts shall be paid in a lump sum without discount, and this \n\nANDERSON- H304408 \n18 \n \naward shall earn interest at the legal rate until paid. A.C.A. 11-9-809. See Couch v. First \nState Bank of Newport, 49 Ark. App. 102, 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 H304408 CHARLES ANDERSON, EMPLOYEE CLAIMANT vs. WHITE HALL SCHOOL DISTRICT, SELF-INSURED EMPLOYER RESPONDENT ARKANSAS SCHOOL BOARDS ASSOC., TPA RESPONDENT OPINION & ORDER FILED 7 FEBRUARY 2025 This claim was heard before Arkansas Workers’ Compensation Commis...","fetched_at":"2026-05-19T22:43:22.998Z","links":{"html":"/opinions/alj-H304408-2025-02-07","pdf":"https://www.labor.arkansas.gov/wp-content/uploads/ANDERSON_CHARLES_H304408_20250207.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}