{"id":"full_commission-G307065-2024-05-07","awcc_number":"G307065","decision_date":"2024-05-07","opinion_type":"full_commission","claimant_name":"Russell Payne","employer_name":"Arkansas Dept. Of Transportation","title":"PAYNE VS. ARKANSAS DEPT. OF TRANSPORTATION AWCC# G307065 MAY 7, 2024","outcome":"granted","outcome_keywords":["granted:1"],"injury_keywords":["neck","back"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/Payne_Russell_G307065_20240507.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Payne_Russell_G307065_20240507.pdf","text_length":14591,"full_text":"NOT DESIGNATED FOR PUBLICATION \nBEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. G307065 \nRUSSELL A.  PAYNE, EMPLOYEE       \n         CLAIMANT \nARKANSAS DEPT. OF TRANSPORTATION,  \nEMPLOYER                          RESPONDENT \n \nPUBLIC EMPLOYEE CLAIMS DIVISION, \nINSURANCE CARRIER          RESPONDENT \n \n \nOPINION FILED MAY 7, 2024 \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas.  \nClaimant represented by the HONORABLE EDDIE H. WALKER, Attorney, \nFort Smith, Arkansas.  \nRespondents represented by the CHARLES H. McLEMORE, Attorney, Little \nRock, Arkansas.  \nDecision of Administrative Law Judge: Affirmed and Adopted.  \n \nOPINION AND ORDER \n Respondent appeals and Claimant cross-appeals an amended \nopinion and order of the Administrative Law Judge filed December 22, \n2023.  In said order, the Administrative Law Judge made the following \nfindings of fact and conclusions of law:  \n1. The stipulations agreed to by the parties at a \npre-hearing conference conducted on October 4, \n\nPAYNE - G307065 \n2023, and contained in a pre-hearing order filed \nthat same date are hereby accepted as fact. \n \n2. Claimant has failed to prove by a preponderance \nof the evidence that he is entitled to permanently \ntotally disabled as a result of his compensable \ninjury.  Claimant has met his burden of proving \nby a preponderance of the evidence that he has \nsuffered a loss in wage earning capacity in an \namount equal to 50% to the body as a whole. \n \n3. Respondent has controverted claimant’s \nentitlement to all unpaid indemnity benefits. \n \n4. Pursuant to A.C.A. §11-9-411 respondent is \nentitled to an offset in an amount equal to \n$189.06 per week. \n   \nWe have carefully conducted a de  novo review of the entire record \nherein and it is our opinion that the Administrative Law Judge’s December \n22, 2023 decision is supported by a preponderance of the credible evidence, \ncorrectly applies the law, and should be affirmed.  Specifically, we find from \na preponderance of the evidence that the findings made by the Administrative \nLaw  Judge  are  correct  and  they  are,  therefore,  adopted  by  the  Full \nCommission.  \nAll accrued benefits shall be paid in a lump sum without discount and \nwith interest thereon at the lawful rate from the date of the Administrative Law \nJudge’s decision in accordance with Ark. Code Ann. §11-9-809 (Repl. 2012).  \nFor prevailing on this appeal before the Full Commission, Claimant’s \nattorney is entitled to fees for legal services in accordance with Ark. Code \n\nPAYNE - G307065 \nAnn. §11-9-715 (Repl. 2012).  For prevailing on appeal to the Full \nCommission, the Claimant’s attorney is entitled to an additional fee of five \nhundred dollars ($500), pursuant to Ark. Code Ann. §11-9-715(b) (Repl. \n2012). \n \nIT IS SO ORDERED.  \n      \n_______________________________ \n   SCOTTY DALE DOUTHIT, Chairman             \n \n_______________________________ \n   M. SCOTT WILLHITE, Commissioner   \n \n \n \nCommissioner Mayton concurs, in part, and dissents, in part. \n \n \nCONCURRING AND DISSENTING OPINION \n \nI concur, in part, and dissent, in part, from the majority’s opinion.  \nSpecifically, I concur with the finding that the claimant has not proven by a \npreponderance of the credible evidence that he is permanently and totally \ndisabled as a result of his compensable injury.  However, in my de novo \nreview of the file, I dissent from the finding that the claimant has met his \nburden of proving by a preponderance of the credible evidence that he has \nsuffered a loss in wage earning capacity in an amount equal to 50% of the \nwhole body.   \n \n\nPAYNE - G307065 \n This claim results from an admittedly compensable injury the \nclaimant sustained on May 17, 2013, after the hood of a truck fell on his \nhead and neck area.  In 2017, the claimant received an impairment rating \nof fourteen percent (14%) and later received an additional rating of twelve \npercent (12%) to the body as a whole.  The respondents have accepted \nthese ratings.  \n The claimant is currently receiving disability retirement benefits from \nthe respondent employer and now contends that he is entitled to wage-loss \ndisability benefits.  An administrative law judge issued an opinion awarding \nthe claimant fifty percent (50%) wage-loss disability over and above his \nimpairment ratings but ruled that the claimant is not permanently and \ntotally disabled.  Both parties filed appeals. \n The wage-loss factor is the extent to which a compensable injury has \naffected the claimant's ability to earn a livelihood.  Wal-Mart Stores, Inc. v. \nConnell, 340 Ark. 475, 10 S.W.3d 727 (2000).  To be entitled to any wage-\nloss disability benefit in excess of permanent physical impairment, a \nclaimant must first prove, by a preponderance of the evidence, that he/she \nsustained permanent physical impairment as a result of a compensable \ninjury.  Id.  \nThe Commission must determine disability after consideration of \nmedical evidence and other factors affecting wage-loss such as the \n\nPAYNE - G307065 \nclaimant's age, education, and work experience.  Tempworks Mgmt. Servs. \nv. Jaynes, 2020 Ark. App. 70, 593 S.W.3d 519 (2020).  Motivation, \npostinjury income, credibility, demeanor, and a multitude of other factors \nare matters to be considered in claims for these wage-loss disability \nbenefits in excess of permanent physical impairment.  Id.  These factors \nare considered in Beal v. Fairfield Bay Community Club, Inc., 2011 Ark. \nApp. 136 (2011) where the Court of Appeals stated: \nBeal  further  testified  that  he  had  worked  all  of \nhis  life  but  that  he  has  not  returned  to  work \nbecause \"they are not going to let him back out \nthere,  as  no  doctor  is  going  to  pass  him  on  a \nphysical and drug test and stuff.\" Beal is blind in \nhis  left  eye,  but  admitted  to  having  glaucoma \nbefore his injury.  According to Beal he does not \nfeel that there are any jobs he can perform and \nis now retired. The Commission disagreed and \nconcluded that \"the evidence shows that [Beal] \nis clearly not motivated to return to any form of \ngainful employment\" and noted that Beal's lack \nof motivation is a valid consideration in its denial \nof Beal's wage-loss disability claim.  \n \nCity of Fayetteville v. Guess, 10 Ark. App. 313, 663 S.W.2d \n946 (1984). \n \nIn a 2010 case considering wage-loss, the Court of Appeals \naffirmed the Commission’s decision to deny wage-loss to a claimant who \nwas 25 years-old and had not looked for any work outside of her previous \njob as a cake decorator or work within her restrictions.  Morrison v. \nConfectionately Yours, Inc., 2010 Ark. App. 687 (2010).  This claimant \n\nPAYNE - G307065 \nreceived a seven percent (7%) disability rating, but the Court noted that \nthis claimant had not attempted to look for work within her restrictions and \nhad low motivation to return to any work other than her previous job.  Id. \nThe Commission found that the claimant developed skills as a cake \ndecorator that would serve her well in other lines of work.  Id. \nFurther, our rules are clear that:   \nThe employee shall not be required to enter \nany program of vocational rehabilitation against \nhis or her consent; however, no employee who \nwaives rehabilitation or refuses to participate in \nor cooperate for reasonable cause with either \nan offered program of rehabilitation or job \nplacement assistance shall be entitled to \npermanent partial disability benefits in excess \nof the percentage of permanent physical \nimpairment established by objective physical \nfindings.  \n \nArk. Code Ann. § 11-9-505(b)(3).  \nAn  employer  relying  on  this  defense  must  show  that  the  claimant \nrefused   to   participate   in   a   program   of   vocational   rehabilitation,   job-\nplacement assistance, or through some other affirmative action indicated an \nunwillingness  to  cooperate  in  those  endeavors, and  such  refusal  to \ncooperate  was  without  any  reasonable  cause. Tillery  v.  Alma  Sch.  Dist., \n2022 Ark. App. 425 (2022). \n The claimant attended his initial intake with Systemedic on August \n22, 2023. (Resp. Ex. 2, Pp. 4-12).  Ms. Hampton determined that “[b]ased \n\nPAYNE - G307065 \non Mr. Payne’s transferable skills, functional ability, records reviewed of his \ninjury and the past work history, he is capable of working in the Medium \ncategory of physical work demands.” (Resp. Ex. 2, P. 11).  However, Ms. \nHampton’s notes reflect that the claimant “stated he is not interested in \nreturning to work and/or receiving vocational rehabilitation services. He \nreported he experiences too much pain and believes he is not capable of \nperforming duties of a job.  He stated he would like to stay off work to take \ncare of himself.” Id.   \n On October 9, 2023, Systemedic sent a letter to the claimant in an \nattempt to follow-up on his intake appointment providing him with a list of ten  \navailable  jobs  within  a  thirty-to-sixty-mile  radius  of  his  home  for  which  he \nwas qualified and were selected in consideration of the claimant’s education, \nskills, work history, and within the results of his FCE. (Resp. Ex. 2, P. 13).  \nAlthough the claimant would later contact Ms. Hampton stating that \nhe is interested in her services, his actions prove otherwise.  (Resp. Ex. 2, \nPp. 15-16).  At the December 2023 hearing, the claimant had the following \nexchange with the respondents’ attorney regarding the claimant’s work with \nMs. Hampton: \nQ: (by  Mr.  McLemore)  You  thought  you  were \nsaying you didn’t think you were physically able \nto do a job. \n \n\nPAYNE - G307065 \nMr. Walker:  Excuse  me.  He  didn’t  say  he \nthought that. He said that is what \nhe said. \n   \nA: Yes.  That is how I understood it.  She didn’t say \nto  me  about  doing  the  capacity  or  whatever.  \nHer  words  was  not  about  doing – what  is  it \ncalled – the – \n \nQ: (by  Mr.  McLemore)  The  functional  capacity \nevaluation? \n \nA: No.  Her  wanting  to  get  me  back  into  the  job \nworkforce. \n \nQ: Okay. \n \nA: She did not say that. She said about me working \na job.  And I said no, I didn’t think I could. \n \nQ: Okay, so you don’t think you could? \n \nA: No. \n \nQ: Well, I want to ask you what you mean by that? \nYou don’t think you can do the crew leader job \nor you don’t think you can do any job? \n \nA: I don’t – I do not believe that I can hold down a \n40-hour  a  week  job  with  the  medication  I  take \nand the shape that I am in and stuff.  I don’t. \n \n(Hrng. Tr., P. 45). \nWhen asked if he had considered a part-time job, the claimant \ntestified: \nQ: All right.  Did you tell Ms. Hampton that you \nthought you could work a part-time job? \n \nA: Maybe.  I hadn’t tried a part-time job. \n \n\nPAYNE - G307065 \nQ: Have you thought about a part-time job? \n \nA: I  have  thought  about  it.  Like  I  said  with  the \nmedication and the way I am, I don’t know that \nI could. \n \nQ: Okay.  What job have you applied for? \n \nA: I haven’t. \n \nQ: Have you looked for a job somewhere? \n \nA: No. \n \nQ: Okay.  So you are not actively looking for a job? \n \nA: I have not put in for a job anywhere. \n \n(Hrng. Tr., P. 46). \n Upon receiving the list of prospective jobs from Ms. Hampton, the \nclaimant did nothing.  (Hrng. Tr., P. 48).  When asked if he applied for any \nof the ten jobs selected by Ms. Hampton or whether he contacted any of \nthe prospective employers, the claimant testified that he had not, he simply \n“didn’t take it that for me to contact them or put in for them or nothing.” \n(Hrng. Tr., P. 48).  \nWhen questioned directly whether he told Ms. Hampton that he is \nuninterested in vocational rehabilitation, the claimant stated that, “[w]hat I \nunderstood from her question was could I work a full-time job and my \nresponse was, no, I didn’t think I could.” (Hrng. Tr., Pp. 60,61). \n The claimant has an extensive work history and numerous \ntransferrable skills, which Ms. Hampton identified as: paving; structural \n\nPAYNE - G307065 \nfabrication, installation, and repair; casting; crushing and grinding; mixing; \nand protecting.  (Resp. Ex. 2, P. 11).  He was employed with the \nrespondent employer for twenty-five (25) years, where his role included \noffice and computer work as well as physical labor.  (Hrng. Tr., Pp. 35-38).  \nIn fact, during his time with the respondent employer, the claimant was a \ncrew leader and supervisor which allowed him to develop supervisory and \norganizational skills.  (Hrng. Tr., Pp. 34, 36).  There is no doubt that the \nclaimant is a skilled and capable employee with a wide range of \ntransferrable skills. \n The claimant’s testimony reflects that his behavior is entirely self-\nlimiting and, it appears, he is content to collect disability-retirement benefits \nrather than return to the job market.  The results of the claimant’s FCE, which \nwere noted to be reliable with 51 of 53 consistency measures within expected \nlimits, showed that the claimant demonstrated the ability to perform work in \nthe medium classification.  (See Cl. Ex. 1, Pp.39-57).  \nThere is no evidence in the record that any physician has advised the \nclaimant  that  he  is  unable  to  work  a  forty-hour  week  job  at  medium  duty. \nFurther, the only source claiming that the claimant is limited to two to three \ndays a week due to his medication is the claimant himself.  \nThe claimant worked for the respondent employer for years taking the \nsame medication.  He simply does not wish to return to work and has made \nit  clear  that he  will  resist  any  opportunities  for  assistance  in  doing  so.  For \n\nPAYNE - G307065 \nthese reasons, it is clear the claimant has refused to participate in vocational \nrehabilitation or return to the job market without cause and is, therefore, not \nentitled to wage-loss disability. \n The claimant has been released to return to work at medium duty and \nno physician or other provider has limited him to less than forty (40) hours a \nweek  at  medium  duty.  The  only  person  who  has  said  the  claimant  cannot \nwork forty (40) hours a week at medium duty or cannot work because of the \nmedication he is taking is the claimant himself.  \nThe claimant should not be rewarded for his self-limiting behavior \nand his refusal to even look for a job or try to return to work.  To rule \notherwise and award the claimant wage-loss is in direct conflict with Ark. \nCode Ann. § 11-9-505(b)(3). \nAccordingly, for the reasons set forth above, I concur, in part, and \ndissent, in part. \n                                                          _______________________________ \n     MICHAEL R. MAYTON, Commissioner","preview":"NOT DESIGNATED FOR PUBLICATION BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. G307065 RUSSELL A. PAYNE, EMPLOYEE CLAIMANT ARKANSAS DEPT. OF TRANSPORTATION, EMPLOYER RESPONDENT PUBLIC EMPLOYEE CLAIMS DIVISION, INSURANCE CARRIER RESPONDENT OPINION FILED MAY 7, 2024 Upon review before the FULL COMMISSION i...","fetched_at":"2026-05-19T22:29:45.435Z","links":{"html":"/opinions/full_commission-G307065-2024-05-07","pdf":"https://labor.arkansas.gov/wp-content/uploads/Payne_Russell_G307065_20240507.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/"}}