{"id":"full_commission-G804863-2024-07-18","awcc_number":"G804863","decision_date":"2024-07-18","opinion_type":"full_commission","claimant_name":"Crystal Gainey","employer_name":"Genoa Central School District","title":"GAINEY VS. GENOA CENTRAL SCHOOL DISTRICT AWCC# G804863 JULY 18, 2024","outcome":"unknown","outcome_keywords":[],"injury_keywords":["back","shoulder"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/Gainey_Crystal_G804863_20240718.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Gainey_Crystal_G804863_20240718.pdf","text_length":9450,"full_text":"NOT DESIGNATED FOR PUBLICATION \n \nBEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \nCLAIM NO. G804863 \n \nCRYSTAL GAINEY, EMPLOYEE              CLAIMANT \n \nGENOA CENTRAL SCHOOL DISTRICT, EMPLOYER RESPONDENT NO. 1 \n \nARKANSAS SCHOOL BOARDS ASSOCIATION, WCT, \nINSURANCE CARRIER/TPA RESPONDENT NO. 1     \n \nDEATH & PERMANENT TOTAL  \nDISABILITY TRUST FUND RESPONDENT NO. 2 \n \nOPINION FILED JULY 18, 2024 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE GARY DAVIS, Attorney at Law, Little \nRock, Arkansas. \n \nRespondents No. 1 represented by the HONORABLE GUY A. WADE, Attorney at \nLaw, Little Rock, Arkansas. \n \nRespondents No. 2 represented by the HONORABLE CHRISTY L. KING, \nAttorney at Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Affirmed and Adopted. \n \nOPINION AND ORDER \n Claimant appeals an opinion and order of the Administrative Law Judge \nfiled March 1, 2024. In said order, the Administrative Law Judge made the \nfollowing findings of fact and conclusions of law: \n1. The Arkansas Workers’ Compensation Commission has authority over \nthis claim. \n \n2. I hereby accept the above-mentioned proposed stipulations as fact.  \n\n \nGAINEY - G804863  2\n  \n \n \n3. The Claimant has failed to prove by a preponderance of the evidence \nthat she was rendered permanently and totally disabled by her \ncompensable back injury of July 16, 2018.  \n \n4. The preponderance of credible evidence does not prove that the \nClaimant sustained any wage loss disability over and beyond her 25% \nanatomical impairment, which Respondents No. 1 accepted and paid \nfor her compensable back injury.  \n \n5. The issue of a controverted attorney’s fee has been rendered moot and \nnot discussed herein this opinion.  \n \n We have carefully conducted a de novo review of the entire record herein \nand it is our opinion that the Administrative Law Judge's March 1, 2024 decision is \nsupported by a preponderance of the credible evidence, correctly applies the law, \nand should be affirmed.  Specifically, we find from a preponderance of the \nevidence that the findings of fact made by the Administrative Law Judge are \ncorrect and they are, therefore, adopted by the Full Commission.  \n Therefore we affirm and adopt the decision of the Administrative Law \nJudge, including all findings and conclusions therein, as the decision of the Full \nCommission on appeal.  \n  \n \n \n\n \nGAINEY - G804863  3\n  \n \n \nIT IS SO ORDERED. \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner \n \n \n \nCommissioner Willhite dissents \n \nDISSENTING OPINION \n \nThis case involves a claim for permanent and total or wage-loss disability \nbenefits.  The ALJ determined that the Claimant was not entitled to any disability \nbenefits beyond her anatomical impairment rating which was accepted and paid.  \nAfter a de novo review of the record, I would award the Claimant wage-loss \nbenefits of 25% in addition to her permanent impairment rating.  \nClaimant sustained a compensable lower back injury on July 16, 2018, when \nshe slipped and fell on a wet floor.  Claimant returned to work shortly after her injury, \nbut continued to receive treatment from her authorized physician, Dr. Overley.  This \ntreatment included conservative care in the form of physical therapy and steroid \ninjections which failed to produce any lasting results.  Consequently, Claimant \nunderwent  a  fusion  at  the  L4-L5  level  of  her  lower  back  in  October  of  2019.  \nFollowing the surgery, Claimant received work restrictions from Dr. Overley, which \n\n \nGAINEY - G804863  4\n  \n \n \nchanged multiple times to accommodate her symptoms as she attempted to return \nto her employment duties.  In February 2020, Claimant resigned from her position \nwith the Respondent to care for her husband.  At that time, Claimant continued to \nexperience difficulties performing job duties that may have exceeded the temporary \nwork restrictions given to her by Dr. Overley.  An FCE was conducted on April 19, \n2020 with reliable results and Claimant was placed in the light-duty category of work \nrestrictions.  On September 15, 2021, Claimant was determined to be at maximum \nmedical improvement and given an impairment rating of 25% to her whole person.  \nAn award of wage-loss benefits is appropriate where a compensable injury \nhas affected the Claimant’s ability to earn a livelihood. Whitlatch v. Southland Land \n& Dev., 84 Ark. App. 399, 141 S.W. 3d 916 (2004).  The Commission is charged \nwith the duty of determining the extent of disability. Cross  v.  Crawford  County \nMemorial Hosp., 54 Ark. App. 130, 923 S.W.2d 886 (1996).  In considering claims \nfor permanent partial disability benefits in excess of the employee’s percentage of \npermanent physical impairment, the Workers’ Compensation Commission may take \ninto account, such factors as the employee’s age, education, work experience, and \nother matters reasonably expected to affect his or her future earning capacity.  Ark. \nCode Ann. § 11-9-522(b)(1).  Such other matters include; motivation, post-injury \nincome, credibility, demeanor, and a multitude of other factors.  Glass v. Edens, 233 \nArk. 786, 346 S.W.2d 685 (1961); City of Fayetteville v. Guess, 10 Ark. App. 313, \n\n \nGAINEY - G804863  5\n  \n \n \n663 S.W.2d 946 (1984); Curry  v.  Franklin Electric, 32 Ark. App. 168, 798 S.W.2d \n130 (1990); Cross v. Crawford County Memorial Hosp., supra.  It is well established \nthat a claimant’s prior work history and education are also factors to be considered \nin determining eligibility for wage-loss benefits.  See Cross  v.  Crawford  County \nMemorial  Hosp.,  supra.; Glass  v.  Edens, supra.; City  of  Fayetteville  v.  Guess, \nsupra.; Curry v. Franklin Electric, supra.  \nClaimant is 62-years of age and has a 10\nth\n grade education, she has not \nobtained a GED or any post-secondary education.  The Claimant worked in a labor-\nintensive  position  with  the  Respondent  as  a  custodial  and  cafeteria  worker.  \nClaimant  worked  in  other  labor-intensive  positions,  prior  to  working with  the \nRespondent,  as  a  house  cleaner,  daycare  attendant  and  nurse’s  aide.    The \nClaimant’s husband, Mr. Boyce Gainey, testified that Claimant was unable to do \nchores around the house or gardening which she did prior to her work injury.  The \nClaimant also has a permanent impairment rating of 25% to the whole person as a \nresult  of  her  compensable  lower  back  injury  and  was  given  light-duty  work \nrestrictions  which  limit  occasional  lifting  of  weight  above  twenty  (20)  pounds.  \nFurther, the Claimant was also restricted from bending or squatting more than \noccasionally.  In light of these factors, I find that Claimant’s wage-earning ability has \nbeen negatively affected and would give her an additional 25% wage-loss factor.  \n\n \nGAINEY - G804863  6\n  \n \n \nPursuant to Ark. Code Ann. § 11-9-522, a Respondent employer may avoid \nliability for any wage-loss benefits by allowing the injured employee to return to \nwork, or by making a bona fide offer of employment.  The offer of employment \nmust be timely, definite and within the employee’s work restrictions and must \nproduce earnings similar to those earned prior to the employee’s work accident.  \nSee Hope Sch. Dist. V. Wilson, 2011 Ark. App. 219, 382 S.W.3d 782 (2011), See \nalso Johnson County Reg’l Med. Ctr. v. Lindsey, 2014 Ark. App. 586, 446 S.W.3d \n647 (2014) and Weyerhaeuser Co. v. McGinnis, 37 Ark. App. 91, 824 S.W.2d 406 \n(1992). \nIn Hope  School  District  v.  Wilson.  In Hope, the Claimant worked as a \ncustodian when he suffered an admittedly compensable injury to his left shoulder.  \nThe Claimant returned to work and was given a revised schedule of work duties to \naccommodate  his  injury.    Claimant  subsequently  resigned.  After  Claimant’s \nvoluntary resignation he was given an impairment rating based on his compensable \ninjury to his left shoulder.  The Arkansas Court of Appeals held that there was not a \nbona  fide  offer  of  employment  for  any  period  after  Claimant  last  worked  for \nRespondent in accordance with Ark. Code Ann. § 11-9-522(c)(1).  See Hope Sch. \nDist. V. Wilson, 2011 Ark. App. 219, 382 S.W.3d 782 (2011).  \nIn  the  matter  at  hand,  the  Claimant  returned  to  work  prior  to  reaching \nmaximum medical improvement or receiving permanent work restrictions but was \n\n \nGAINEY - G804863  7\n  \n \n \nunable to continue her employment and resigned in February of 2020. Pursuant to \nthe Hope case, the resignation does not preclude a wage-loss award.  On April 19, \n2020,  the  Claimant  was  given  permanent  light-duty  work  restrictions.    On \nSeptember 15, 2021, the Claimant was determined to be at maximum medical \nimprovement  and  given  a  permanent  impairment  rating.  At  no  time  after  the \nassignment of permanent work restrictions, or after the Claimant was determined \nto be at maximum medical improvement did the Respondent attempt to re-employ \nthe Claimant.  As a result, I find that Respondent did not return the Claimant to work \nor make a bona fide offer of employment, and as stated above I would award wage-\nloss disability benefits of 25% in addition to the given anatomical impairment rating. \n \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner","preview":"NOT DESIGNATED FOR PUBLICATION BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. G804863 CRYSTAL GAINEY, EMPLOYEE CLAIMANT GENOA CENTRAL SCHOOL DISTRICT, EMPLOYER RESPONDENT NO. 1 ARKANSAS SCHOOL BOARDS ASSOCIATION, WCT, INSURANCE CARRIER/TPA RESPONDENT NO. 1 DEATH & PERMANENT TOTAL DISABILITY TRUST FUND R...","fetched_at":"2026-05-19T22:29:45.206Z","links":{"html":"/opinions/full_commission-G804863-2024-07-18","pdf":"https://labor.arkansas.gov/wp-content/uploads/Gainey_Crystal_G804863_20240718.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/"}}