{"id":"full_commission-G409071-2024-01-10","awcc_number":"G409071","decision_date":"2024-01-10","opinion_type":"full_commission","claimant_name":"Ruby Moody","employer_name":"Arkansas Department Of Community Corrections","title":"MOODY VS. ARKANSAS DEPARTMENT OF COMMUNITY CORRECTIONS AWCC# G409071 JANUARY 10, 2024","outcome":"affirmed","outcome_keywords":["affirmed:1","granted:1","denied:1"],"injury_keywords":["neck","back","cervical","lumbar","carpal tunnel"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/Moody_Ruby_G409071_20240110.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Moody_Ruby_G409071_20240110.pdf","text_length":15093,"full_text":"NOT DESIGNATED FOR PUBLICATION \n \n \nBEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \nCLAIM NO. G409071 \n \nRUBY MOODY,  \nEMPLOYEE \n \nCLAIMANT \nARKANSAS DEPARTMENT OF COMMUNITY \nCORRECTIONS, EMPLOYER \n \nRESPONDENT \nPUBLIC EMPLOYEE CLAIMS DIVISION, \nCARRIER \nRESPONDENT \n \nOPINION FILED JANUARY 10, 2024 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE WILLIAM C. FRYE, Attorney at \nLaw, North Little Rock, Arkansas. \n \nRespondents represented by the HONORABLE CHARLES H. \nMCLEMORE, Attorney at Law, Little Rock, Arkansas. \n \n \nDecision of Administrative Law Judge:  Affirmed and Adopted. \n \n OPINION AND ORDER \n The respondents appeal and the Claimant cross-appeals an opinion \nand order of the Administrative Law Judge filed June 23, 2023.  In said \norder, the Administrative Law Judge made the following findings of fact and \nconclusions of law:  \n1. Arkansas Workers’ Compensation Commission has jurisdiction   \nover this claim. \n \n2.  I hereby accept the above-mentioned proposed stipulations as \nfact. \n \n \n\nMOODY- G409071  2\n  \n \n \n3.  The Claimant proved by a preponderance of the evidence that \nshe sustained wage-loss disability benefits in the amount of 24% \nover and above her combined value rating of a 19% impairment \nfor her neck and back injuries of July 19, 2022. \n \n4. The Claimant’s attorney is entitled to a controverted attorney’s \nfee on the indemnity benefits awarded herein.  \n \n5. All issues not litigated are reserved under the Arkansas Workers’ \nCompensation Act. \n \n                         \n We have carefully conducted a de novo review of the entire record \nherein and it is our opinion that the Administrative Law Judge's June 23, \n2023 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 \nAdministrative Law Judge are correct and they are, therefore, adopted by \nthe Full Commission.  \n We therefore affirm the decision of the Administrative Law Judge, \nincluding all findings of fact and conclusions of law therein, and adopt the \nopinion as the decision of the Full Commission on appeal. \n All 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 \nLaw Judge's decision in accordance with Ark. Code Ann. § 11-9-809 (Repl. \n2012). \n\nMOODY- G409071  3\n  \n \n \n For prevailing on this appeal before the Full Commission, claimant’s \nattorney is entitled to fees for legal services in accordance with Ark. Code \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  IT IS SO ORDERED. \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner \n \n \n \nCommissioner Mayton dissents \n \n \nDISSENTING OPINION \n \nI respectfully dissent from the majority finding that the claimant has \nproven by a preponderance of the credible evidence that she sustained \nwage loss disability benefits in the amount of 24% over and above her \ncombined value rating of a 19% impairment for her neck and back injuries of \nJuly 19, 2022. \nThe parties stipulated the claimant suffered cervical and lumbar \ninjuries while employed by the respondent employer on October 30, 2014. \n(Resp. Ex. 2, P. 4) Her claim was accepted as compensable, and she \n\nMOODY- G409071  4\n  \n \n \nunderwent a cervical fusion at C6-7 and a partial corpectomy at C5 \nperformed by Dr. Reza Shahim on October 26, 2021. (Resp. Ex. 1, Pp. 15-\n16). On April 11, 2022, Dr. Barry Baskin found the claimant to be at \nmaximum medical improvement (MMI) and assigned a ten percent (10%) \nanatomical impairment rating to the body as a whole as the result of her \ncervical injury.  (Resp. Ex. 1, Pp. 27-28).  \nThe claimant underwent a right L5-S1 lumbar microdiscectomy by \nDr. Shahim on September 6, 2022.  She was released at MMI by Dr. Baskin \nas the result of her lumbar surgery on December 19, 2022.  Dr. Baskin \nassessed a 10% rating to her lumbar spine and when combined with the \n10% rating to her cervical spine entitled her to a total impairment of 19% to \nthe body as a whole.  (Resp. Ex. 1, Pp. 37-38, 47-49). The claimant \nperformed reliably on her Functional Capacity Evaluation (FCE) on January \n10, 2023. (Resp. Ex. 1, Pp. 50-69).  She demonstrated the ability to perform \nwork in the light classification at that time. Id. The respondents provided \nvocational rehabilitation for the claimant beginning in July 2022, but the \nclaimant elected to discontinue vocational rehabilitation services and job \nplacement assistance since she did not believe she was capable of going \nback to work. (Resp. Ex. 2, Pp. 9-16, 22-25). \n\nMOODY- G409071  5\n  \n \n \nAfter a March 29, 2023 hearing, an Administrative Law Judge (ALJ) \nawarded the claimant 24% wage-loss over and above her 19% impairment \nrating. \nThe 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 she \nsustained permanent physical impairment as a result of a compensable \ninjury. Id. The Commission must determine disability after consideration of \nmedical evidence and other factors affecting wage loss, such as the \nclaimant's age, education, and work experience. Tempworks Mgmt. Servs. \nv. Jaynes, 2020 Ark. App. 70, 593 S.W.3d 519 (2020). Motivation, postinjury \nincome, credibility, demeanor, and a multitude of other factors are matters to \nbe considered in claims for these wage-loss disability benefits in excess of \npermanent physical impairment. Id. In considering factors that may affect an \nemployee's future earning capacity, the Commission considers the \nclaimant's motivation to return to work, since a lack of interest or a negative \nattitude impedes the assessment of the claimant's loss of earning \ncapacity.  Emerson Electric v. Gaston, 75 Ark. App. 232, 58 S.W.3d 848 \n(2001). In determining wage-loss, the Commission may take into \n\nMOODY- G409071  6\n  \n \n \nconsideration the worker's age, education, work experience, medical \nevidence and other matters reasonably expected to affect the worker's future \nearning power.  A worker may be entitled to additional wage-loss disability \neven though his wages remain the same or increase after the injury. City of \nFayetteville v. Guess, 10 Ark. App. 313, 663 S.W.2d 946 (1984). \na.  The claimant elected to discontinue vocational \nrehabilitation and job placement assistance and is, \ntherefore, barred from receiving wage-loss benefits. \n  \nThe key question in this matter is what, if any, impact the claimant’s \nrefusal to enter into vocational rehabilitation has on her claim for wage-loss \nbenefits. Our rules are clear that:   \nThe employee shall not be required to enter any program of \nvocational rehabilitation against his or her consent; however, \nno employee who waives rehabilitation or refuses to \nparticipate in or cooperate for reasonable cause with either \nan offered program of rehabilitation or job placement \nassistance shall be entitled to permanent partial disability \nbenefits in excess of the percentage of permanent physical \nimpairment established by objective physical findings.  \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 or job-\nplacement assistance or, through some other affirmative action, indicated an \nunwillingness to cooperate in those endeavors and that such refusal to \ncooperate was without any reasonable cause.  Tillery v. Alma Sch. Dist., \n2022 Ark. App. 425. \n\nMOODY- G409071  7\n  \n \n \nAt her initial vocational rehabilitation assessment with Keondra \nHampton, MS, CRC on July 19, 2022, the claimant expressed doubts about \nreturning to work.  She informed Ms. Hampton “she was unsure if she was \nready to return to work . . . She stated she is hesitant to perform job duties \nthat require physical demand of light or greater.” (Resp. Ex. 2, P. 15). “Miss \nMoody declined the idea of retraining for another career and stated she is \nclose to retirement and does not wish to retrain and deepen her financial \ndebt.” (Resp. Ex. 2, Pp. 15-16).  \nLater, at a January 18, 2023 meeting with Ms. Hampton, the claimant \nconfirmed that she had no interest in returning to the workforce.  She stated \nshe believes she is not capable of returning to work due to the constant pain \nand discomfort.  She said, “I do not want to waste your time but if you have \nto search for work on my behalf, I will be compliant.”  Ms. Moody reported \nshe is not interested in obtaining employment at a reduced wage of $22.50/ \nhour .  She also reported she does not believe she will be capable of going \nback to work and elects to discontinue vocational rehabilitation services at \nthis time.  (Resp. Ex. 2, P. 23). \nOn March 7, 2023, Ms. Hampton recommended closing the \nclaimant’s vocational rehabilitation file, stating that “[a]although she is \ncapable of working within the Light category of physical work demands, \n\nMOODY- G409071  8\n  \n \n \naccording to her FCE, Ms. Moody has elected to discontinue vocational \nrehabilitation services at this time.” Id. \nWhile it appears that the claimant believes it is sufficient by informing \nMs. Hampton that she would cooperate with vocational rehabilitation, “if \nforced to do so”, it is obvious that the claimant rejected any efforts made by \nMs. Hampton without reasonable cause.  While the claimant contends that \nthe pain resulting from her compensable injury rendered her unable to work \nin any capacity, she informed Keondra Hampton on three separate \noccasions that she was not ready or was not willing to take on new training, \ndespite being released on light duty restrictions after her 2022 Functional \nCapacity Evaluation.  For these reasons, it is clear that the claimant refused \nvocational rehabilitation and job placement assistance and is, therefore, not \nentitled to wage-loss disability benefits pursuant to Ark. Code Ann. § 11-9-\n505(b)(3).  \nb. The claimant’s education and experience show that the \nclaimant is capable of returning to work, but refuses to do \nso. \n \nAs stated above, in considering factors that may affect an employee's \nfuture earning capacity, the Commission considers the claimant's motivation \nto return to work, since a lack of interest or a negative attitude impedes the \nassessment of the claimant's loss of earning capacity.  Emerson Electric v. \nGaston, 75 Ark. App. 232, 58 S.W.3d 848 (2001).  The Commission may \n\nMOODY- G409071  9\n  \n \n \nalso consider other permanent disability factors such as the claimant's \nage, education, work experience, medical evidence and other matters \nreasonably expected to affect the worker's future earning power.  City of \nFayetteville v. Guess, 10 Ark. App. 313, 663 S.W.2d 946 (1984).  These \nfactors are considered in Beal v. Fairfield Bay Cmty. Club, Inc., 2011 Ark. \nApp. 136 (2011) where the Court of Appeals stated: \nBeal further testified that he had worked all of his life but \nthat he has not returned to work because \"they are not \ngoing to let him back out there, as no doctor is going to \npass him on a physical and drug test and stuff.\" Beal is \nblind in his left eye, but admitted to having glaucoma \nbefore his injury.  According to Beal he does not feel that \nthere are any jobs he can perform and is now retired. The \nCommission disagreed and concluded that \"the evidence \nshows that [Beal] is clearly not motivated to return to any \nform of gainful employment\" and noted that Beal's lack of \nmotivation is a valid consideration in its denial of Beal's \nwage-loss disability claim. City of Fayetteville v. Guess, 10 \nArk. App. 313, 663 S.W.2d 946 (1984). \n \nIn a 2010 case considering wage-loss, the Court of Appeals affirmed \nthe Commission’s decision to deny wage-loss to a claimant who was 25 \nyears old and had not looked for any work outside of her previous job as a \ncake decorator or work within her restrictions. Morrison v. Confectionately \nYours, Inc., 2010 Ark. App. 687 (2010).  This claimant received a seven \npercent (7%) disability rating, but the Court noted that this claimant had not \nattempted to look for work within her restrictions and had low motivation to \nreturn to any work other than her previous job. Id.  The Commission found \n\nMOODY- G409071  10\n  \n \n \nthat the claimant developed skills as a cake decorator that would serve her \nwell in other lines of work. Id. \nHere, it has been established through the claimant’s statements to \nKeondra Hampton that she simply lacked the motivation to return to work. \nThis enough is sufficient to preclude her from receiving wage-loss benefits; \nhowever, the claimant has two college degrees, obtained with honors, and \nyears of experience working in an office environment. (Hrng. Tr., Pp. 21-22, \n24-25, 55-57; Resp. Ex. 2, P. 1). The claimant testified that these office \nduties included using a computer eight hours per day, maintaining records, \npreparing documents, and presenting documents to the court system.  \n(Hrng. Tr., Pp. 24-25, 56-59).  While the claimant testified that she has \ndifficulties using a computer due to her neck and pre-existing carpal tunnel \nsyndrome, she never sought a prescription for a standing desk. (Hrng. Tr., \nPp. 62-63).   \nThe facts in this case do not support a finding of wage-loss disability. \nAs has been seen in prior cases before the Commission and our Courts, a \nwell-educated claimant such as the claimant who has two college degrees \nwith an established history of skills that can be easily transferred to another \nfield is not entitled to wage-loss disability.  This is especially true when, in \nthis case, the claimant who is capable of working within the light category of \nphysical work demand pursuant to her FCE elected to discontinue vocational \n\nMOODY- G409071  11\n  \n \n \nrehabilitation services and job placement assistance just because she did \nnot feel she was capable of returning to work and was not interested in \nobtaining employment at a reduced rate of $22.50/ hour and would not be \ninterested in a job that paid less than she was earning before her injury. \n  Since the claimant refused to participate in or cooperate with job \nplacement assistance and elected to discontinue vocational rehabilitation \nservices, her claim for wage-loss disability is barred by Ark. Code Ann. § 11-\n9-515(b)(3). \nAccordingly, for the reasons set forth above, I must dissent from the \nmajority’s opinion. \n \n \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner","preview":"NOT DESIGNATED FOR PUBLICATION BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. G409071 RUBY MOODY, EMPLOYEE CLAIMANT ARKANSAS DEPARTMENT OF COMMUNITY CORRECTIONS, EMPLOYER RESPONDENT PUBLIC EMPLOYEE CLAIMS DIVISION, CARRIER RESPONDENT","fetched_at":"2026-05-19T22:29:46.052Z","links":{"html":"/opinions/full_commission-G409071-2024-01-10","pdf":"https://labor.arkansas.gov/wp-content/uploads/Moody_Ruby_G409071_20240110.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/"}}