{"id":"full_commission-H004773-2024-08-07","awcc_number":"H004773","decision_date":"2024-08-07","opinion_type":"full_commission","claimant_name":"Donald Hodge","employer_name":"Dept. Of Human Services","title":"HODGE VS. DEPT. OF HUMAN SERVICES AWCC# H004773 AUGUST 7, 2024","outcome":"granted","outcome_keywords":["granted:2","denied:1"],"injury_keywords":["back","neck","shoulder","hip","cervical","lumbar"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/Hodge_Donald_H004773_20240807.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Hodge_Donald_H004773_20240807.pdf","text_length":31442,"full_text":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n \nCLAIM NO. H004773 \n \nDONALD P. HODGE, \nEMPLOYEE \n \nCLAIMANT \nDEPT. OF HUMAN SERVICES,  \nEMPLOYER \n \nRESPONDENT \nPUBLIC EMPLOYEE CLAIMS DIVISION, \nINSURANCE CARRIER \nRESPONDENT \n  \n      \nOPINION FILED AUGUST 7, 2024 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE GREGORY R. GILES, Attorney \nat Law, Texarkana, Arkansas. \n \nRespondents represented by the HONORABLE ROBERT H. \nMONTGOMERY, Attorney at Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Affirmed in part, reversed in part. \n \n \n OPINION AND ORDER \nThe Claimant appeals an administrative law judge’s opinion filed \nMarch 19, 2024. The administrative law judge found that the Claimant failed \nto prove by a preponderance of the evidence that he is entitled to wage-loss \ndisability benefits as a result of his compensable injuries incurred on June \n15, 2020. After reviewing the entire record de novo, the Full Commission \nfinds that Claimant is entitled to 20% wage-loss disability benefits as a \nresult of his compensable injuries incurred on June 15, 2020.   \nI. HISTORY \n The testimony of Donald Hodge, now age 64, indicated that \n\nHODGE – H004773  2\n  \n \n \nhe became employed with the Respondents, Department of Human \nServices, in November 2012. Mr. Hodge testified that he had been \nemployed as a training and project manager for the Respondents. The \nparties stipulated that the employee-employer relationship existed on June \n15, 2020. The Claimant testified on direct examination:  \nQ. And on the date of your injury, June 15\nth\n of 2020, were you \nworking in the office that day?  \nA. Yes, sir. I had come to the office, and was told to come \nback and stay at the office, because of the blueprints.  \nQ. I understand and, of course, we stipulated to your injuries, \nbut just give us a brief description of what happened? How did \nyou – how did your accident – how did you have an accident \nthat caused yourself to be hurt?  \nA. Well, I was coming in to review a specific – a hundred-units \nnew facility that was being built in Little Rock, and the \nblueprints had been shipped to me. A full set of blueprints for \na hundred-unit is quite heavy, and it was shipped in a \ncardboard container, and I wasn’t going to carry it to office. I \nhad to carry it to another place to stretch it out. I had to have a \nbig table, you know, and the cubicles didn’t have enough \nroom or table width to pull out a full set of plans. So I went and \ngot a cart with wheels on it and I was going to put them on the \ncart and roll it down to the conference room, where I could pull \nthem out and go over them, and when I picked the – I pulled \nthe cart in and when I picked the blueprints up to move them, \nthe bottom of the box was open and I didn’t realize that. The \nblueprints slid out of the bottom of the box and hit me on my \nleft foot. When it did, you know, the pain, it knocked me off my \nfeet and I grabbed the cart. Well, it was on wheels and as a \nresult, I slid across from my cubicle across the corridor and hit \na little two-foot file cabinet and flipped over it and hit another \n\nHODGE – H004773  3\n  \n \n \nfile cabinet. \n \nThe parties stipulated that the Claimant sustained compensable \ninjuries to his “back, neck, right foot, right arm/right shoulder and right hip,” \non June 15, 2020. On June 15, 2020,  according to the record, Claimant \nreported to the Baptist Health emergency department where he underwent \na multitude of x-rays and was diagnosed with a contusion of right foot, \narthralgia of hip, and acute shoulder pain.  \nThe Claimant’s testimony indicated that he underwent surgery by Dr. \nKirk Reynolds on December 28, 2020 for his compensable right shoulder \ninjury. The Claimant testified on direct examination:  \nQ. And to what extent or help us understand what symptoms \nor problems that you began to experience as far as your neck \nwas concerned, after the work-related accident?  \nA. I had a spot about as big as a silver dollar between my \nneck and shoulder that always burned and had sharp pain in \nit.  \nQ. And was that in between – which shoulder area were you –  \n A. This was on the left neck and shoulder area.  \n Q. And you did, ultimately, it looks like, have an MRI   \n       recommended by Dr. Reynolds at one point for your neck?  \n A. Yes, sir.   \n \nAccording to the record, an MRI of the Claimant’s C-Spine was \ntaken on January 22, 2021:  \nFINDINGS: There are no signal abnormalities within the cervical \nspinal cord. No thecal sac mass. The cervical vertebrae are in \nanatomic alignment. No vertebral body or disc edema. The \n\nHODGE – H004773  4\n  \n \n \nprevertebral space is unremarkable. The spinous processes and \ninterspinous ligaments are normal. The following findings are present \nat each level:  \nC2-C3: Small focal central disc protrusion. No spinal \ncanal or neural foraminal stenosis.  \nC3-C4: Minimal uncovertebral spurring. No spinal canal \nor neural foraminal stenosis.  \nC4-C5: A small focal central disc protrusion. No spinal \ncanal or neural foraminal stenosis.  \nC5-C6: A small posterior disc bulge. Small bilateral \nparasagittal disc protrusions. No spinal canal stenosis. \nNo right neural foraminal stenosis. Mild left neural \nforaminal stenosis.  \nC6-C7: A small broad-based posterior disc bulge. \nSmall to medium size asymmetric left parasagittal disc \nprotrusion. No spinal canal stenosis. No right neural \nforaminal stenosis. Mild left neural foraminal stenosis.  \nC7-T1: Unremarkable.  \nIMPRESSION:  \n1. Normal MRI of the cervical spinal cord and canal.  \n2. No significant cervical spinal canal or neural \nforaminal stenosis.  \n \nThe record indicates that Dr. Kirk Reynolds evaluated the Claimant’s \nMRI on January 25, 2021, who then referred Claimant to Trent Tappan PA-\nC for evaluation. Dr. Reynolds states that he did not “see anything that \nindicates surgical intervention based upon [his] review of the MRI.” On \nFebruary 8, 2021, Claimant’s c-spine was evaluated by Trent Tappan PA-C \nwho stated “I think he may be symptomatic from this foraminal stenosis, but \nit is really difficult to know if that C6-7 or C7-T1 because [he] cannot see the \nimages together to count the level. We are going to hold off on treatment for \n\nHODGE – H004773  5\n  \n \n \nthis anyway.” Trent Tappan PA-C states that Claimant may be seen for his \nback as needed and does not recommend further treatment for Claimant’s \nc-spine. The Claimant’s testimony indicated that he underwent some \nphysical therapy for his cervical spine after this visit, but no other treatment \nwas provided for Claimant’s c-spine.  \nThe parties stipulated that, on May 10, 2021, the Claimant was \nassigned an impairment rating of five percent (5%) to the body as a whole \nafter reaching maximum medical improvement for his compensable \nshoulder injury.  \nThe Claimant participated in an initial Functional Capacity Evaluation \non May 19, 2021: “The results of this evaluation indicate that a reliable \neffort was put forth, with 53 of 55 consistency measures within expected \nlimits....Mr. Hodge completed functional testing on this date with reliable \nresults. Overall, Mr. Hodge demonstrated the ability to perform in the light \nclassification of work[.]”  \nAccording to the record, the Claimant was assessed at maximum \nmedical improvement with regard to his low back injury on August 11, 2021 \nby Dr. Wayne Bruffett. Dr. Bruffett gave the Claimant a “7% impairment \nrating of the whole person” and released the Claimant without restrictions \nfor his low-back injury. The parties stipulated that “Claimant was initially \nassessed at maximum medical improvement with regard to his low back \n\nHODGE – H004773  6\n  \n \n \ninjury on 11 August 2021, but was later deemed to require surgery that \noccurred on 2 December 2021, with maximum medical improvement being \nfound again on 3 May 2022 with a ten percent (10%) impairment rating \nassigned at that time.” \nThe Claimant participated in another Functional Capacity Evaluation \non April 25, 2022: “The results of this evaluation indicate that a reliable \neffort was put forth, with 50 of 53 consistency measures within expected \nlimits....Mr. Hodge completed functional testing on this date with reliable \nresults. Overall Mr. Hodge demonstrated the ability to perform work in the \nlight classification of work[.]” \nThe Claimant began working with Vocational Rehabilitation \nConsultant, Keondra Hampton on May 24, 2022. Keondra Hampton, \nprovided a Vocational Rehabilitation Progress Report on July 1, 2022. \nKeondra Hampton reported in part, “Mr. Hodge has completed online job \napplications and is waiting on employee responses....He is continuing to \napply for several job openings each week so we are anticipating he will \nhave interviews in the coming months.” Hampton further reported: “Mr. \nHodge is an excellent candidate to return to the workforce. He has a stable \nwork history and has acquired some skills and transferrable skills from his \neducation, training, and work experience that he should be able to utilize in \n\nHODGE – H004773  7\n  \n \n \nreturning to a new lighter capacity job in the future.” \nOn September 15, 2022, Keondra Hampton further reported in \nanother Vocational Rehabilitation Progress Report that “[Mr. Hodge] is \neager to return to the workforce to a new position and is agreeable to \nworking with me. He is being cooperative with the job search process to \ndate and is completing job applications on a weekly basis. However, he has \nnot received any job offers for permanent placement to date. He does \ncontinue to apply for job openings each week.” \nKeondra Hampton provides another Vocational Rehabilitation \nProgress Report on December 9, 2022. Keondra Hampton reported in part \n“Mr. Hodge reported he has been completing job applications weekly and \nhas not heard from any employer for which he applied. He stated, in \naddition to the jobs he has received from me, he has conducted his own job \nsearch on search engines such as Indeed and Glassdoor....Mr. Hodge \nstated he is having difficult securing employment with consistent \nsustainable income, but he is still optimistic.”  \nKeondra Hampton provides a final Vocational Rehabilitation \nProgress Report on January 13, 2023. Keondra Hampton reported that \n“[Mr. Hodge] reported he applied for multiple construction inspector jobs but \nhas not heard back from any of the employers. Mr. Hodge stated he \nbelieves he is not being considered for any positions based on the fact he \n\nHODGE – H004773  8\n  \n \n \nhas not obtained a bachelor's degree.”  \nA pre-hearing order was filed on October 3, 2023. According to the \ntext of the pre-hearing order, the Claimant contended the following: \n“Claimant contends that he was initially assessed at maximum medical \nimprovement with regard to all injuries on August 11, 2021. That this was \npremature, and he did not reach maximum medical improvement until May \n3, 2022, and as a result there has been an underpayment of temporary total \ndisability benefits. Claimant contends he was entitled to temporary total \ndisability benefits during the time frame from May 13, 2021, through \nDecember 5, 2021. Claimant contends that his permanent partial disability \nbenefits should have started on May 3, 2022, and contends that he would \nbe entitled to permanent partial disability benefits beginning at that time for \nthe five percent (5%) impairment rating assigned to his right shoulder, as \nwell as the ten percent (10%) impairment rating assigned to his low back. \nClaimant also contends that given the nature of the, “posterior disc bulges \nidentified at C5-6 and C6-7 with increased signal associated cervical cord” \nthat he should be awarded a cervical impairment rating of at least five \npercent (5%). Claimant contends he should be awarded wage-loss disability \nbenefits in excess of the anatomical impairment ratings assigned. The \nClaimant is currently receiving pain management medications being \nprescribed through his primary physician, Dr. Becker, which Claimant \n\nHODGE – H004773  9\n  \n \n \ncontends is reasonable, and necessary associated with the pain he \ncontinues to experience and contends that Respondents should be ordered \nto pay for same. Claimant contends Respondents should be ordered to pay \nattorney’s fees as provided by law.” \n The Respondents contended, “The Claimant reported lifting a box of \nblueprints when the blueprints slid and his right foot. He reported that he fell \nforward, grabbed the wheeled cart, and slid into the file cabinet. The \nRespondents accepted this claim as compensable and initiated appropriate \nbenefits. The Respondents contend that appropriate temporary total \ndisability and permanent partial disability benefits have been paid to \nClaimant, to date. The Claimant underwent right shoulder arthroscopy on \nDecember 18, 2020, by Dr. Reynolds and was found to be at maximum \nmedical improvement for his shoulder injury on May 10, 2021. The Claimant \nwas assigned a ten percent (10%) whole-body impairment rating by Dr. \nReynolds on June 7, 2021. The Respondents accepted and paid this rating. \nThe Claimant was treated for lumbar symptoms by Dr. Warren Bruffett. \nMedical records indicate that the Claimant did not want any additional \nsurgery and thus Dr. Bruffett found him to be at maximum medical \nimprovement on May 11, 2021. Dr. Bruffett continued the Claimant’s full-\nduty work status on June 21, 2021, as the Claimant did not wany any \nadditional surgery. After many months, the Claimant indicated he was \n\nHODGE – H004773  10\n  \n \n \ninterested in additional surgery on November 15, 2021. An L4-5 \nlaminectomy was performed on December 2, 2021. Temporary total \ndisability benefits were reinstated and paid through May 2, 20221, \npermanent partial disability benefits were then initiated and paid through \nMarch 9, 2023. The Claimant has been paid appropriate periods of \ntemporary total disability and permanent partial disability benefits. The \nClaimant is not entitled to temporary total disability benefits from May 13, \n2021, through December 5, 2021, as he declined additional medical \ntreatment recommendations from his authorized treating physician, namely \nan additional surgery, and he was found to be at maximum medical \nimprovement and released to full-duty work. He cannot now claim to be \nentitled to temporary total disability benefits for the same time period for \nwhich he refused medical treatment. The Respondents contend that there \nhas been no underpayment of either temporary total disability or permanent \npartial disability benefits. The Claimant received all temporary total disability \nbenefits to which he was entitled. The Respondents will contend that \npermanent partial disability benefits were overpaid to the Claimant in the \namount of $1,589.00. The Claimant has many years of construction \nexperience and related skills. He currently works for a company that \nrequires him to visit construction sites to monitor building progress. He gets \npaid $700.00 per completed assignment. He has applied for social security \n\nHODGE – H004773  11\n  \n \n \nbenefits and is awaiting a decision on his claim. The Respondents contend \nthat the Claimant is not entitled to wage-loss disability benefits based on \nthese facts. The Respondents have paid and continue to pay reasonably \nnecessary medical expenses incurred by Claimant, including those form Dr. \nBrecker. \n  The parties agreed to litigate the following issues:  \n1. Whether the Claimant was owed for underpayments of \ntemporary total disability and permanent partial disability \nbenefits.  \n2. Whether the Claimant was entitled to an impairment rating \nassociated with a cervical injury.  \n3. Whether the Claimant was entitled to additional medical \ntreatment.  \n4. Whether the Claimant is entitled to an attorney’s fee.  \n \n  An administrative law judge filed an opinion on March 19, 2024. The \nadministrative law judge found that the Claimant failed to prove he was \nunderpaid or owed additional payments for temporary total disability \nbenefits, that Claimant failed to prove he was underpaid permanent partial \ndisability benefits under his contention that “permanent partial disability \nbenefits should have started on May 3, 2022” as the record reflects that \npermanent partial disability payments began on that date, that the Claimant \nhas failed to satisfy his burden in showing that he is entitled to an \nimpairment rating for a cervical injury, that the Claimant has not satisfied his \nburden in showing that he is entitled to wage-loss disability benefits, and \nfinally that the Claimant is not entitled to an attorney’s fee consistent with \n\nHODGE – H004773  12\n  \n \n \nthese findings. The administrative law judge therefore denied and dismissed \nthe claim. The Claimant appeals to the Full Commission.  \nII. ADJUDICATION \n(A) Temporary Total Disability Benefits  \nTemporary total disability benefits are appropriate where the \nemployee remains in the healing period and is totally incapacitated from \nearning wages. Ark. State Highway Dep’t v. Breshears, 272 Ark. 244, 613 \nS.W.2d 392 (1981). The Claimant has the burden of proof in showing that \nhe remains in his healing period and is totally incapacitated from earning \nwages. Id.  \nIt is the Commission’s duty to translate the evidence of record into \nfindings of fact. Gencorp Polymer Prods. v. Landers, 36 Ark. App. 190, 820 \nS.W.2d 475 (1991). After his June 15, 2020 work-accident Claimant was \ndiagnosed with an admittedly compensable lumbar condition of a facet cyst \non his right L4-5, and disc bulging and stenosis by Dr. Bruffet. Dr. Bruffet \nthen recommended a bilateral laminectomy for Claimant’s compensable \ninjury. Claimant testified at the hearing that he did not want to undergo \nanother surgery as he believed that the surgery wasn’t an absolute \nguarantee that his condition would improve, and he wanted the surgery to \nbe considered a last resort. Unfortunately for the Claimant, the surgery was \nnecessary and was performed on December 2, 2021. Trent Tappan PA-C \n\nHODGE – H004773  13\n  \n \n \nopined on February 8, 2021, that he wanted to give Claimant’s “back some \ntime to improve,” while the Claimant had may have had work restrictions,  \nthere is no medical professional that takes Claimant completely off work for \nthe requested time period of May 13, 2021 through December 20, 2021.  \nAn administrative law judge found in the present matter, “The \nClaimant has not satisfied his burden for an underpayment on or additional \npayments owed for temporary total disability benefits.” The Full Commission \naffirms the administrative law judge’s finding that the Claimant has not \nsatisfied his burden of proof as to an underpayment of, or additional \npayments owed, for temporary total disability.  \n(B) Impairment Rating \nAn administrative law judge found in the present matter, “5. The \nClaimant has not satisfied his burden in showing that he is entitled to an \nimpairment rating for a cervical injury.”  \nClaimant underwent a C-Spine MRI on January 22, 201. Dr. Kirk \nReynolds read this MRI and diagnosed Claimant with cervical degenerative \ndisc disease with bulges at C5-C6 and C6-C7. There is insufficient \nevidence in the record to presume that the Claimant’s cervical spine \ndiagnoses are a direct result of his June 15, 2020, work accident. \nTherefore, the Commission affirms the administrative law judge’s finding \nthat the Claimant did not satisfy his burden in showing that he is entitled to \n\nHODGE – H004773  14\n  \n \n \nany benefits relating to an impairment rating for a cervical injury.  \n(C) Wage-Loss \nWage-Loss factor is the extent to which a compensable injury has \naffected the Claimant’s ability to earn a livelihood. Cross v. Crawford \nCounty Mem. Hosp., 54 Ark. App. 130, 923 S.W.2d 886 (1996). The \nCommission is charged with the duty of determining disability. Id. In \nconsidering claims for permanent partial disability exceeding the \nemployee’s percentage of permanent physical impairment, the Commission \nmay take into account, in addition to the percentage of permanent physical \nimpairment, such factors as the employee’s age, education, work \nexperience, and other matters reasonably expected to affect his future \nearning capacity. Ark. Code Ann. § 11-9-522(b)(1)(Repl. 2012). Such other \nmatters are motivation, post-injury income, credibility, demeanor, and a \nmultitude of other factors. Glass v. Edens, 233 Ark. 786, 346 S.W.2d 685 \n(1961): City of Fayetteville v. Guess, 10 Ark. App. 313, 663 S.W.2d 946 \n(1984); Curry v. Franklin Electric, 32 Ark. App. 168, 798 S.W.2d 130 (1990); \nCross v. Crawford County Memorial Hosp., supra. It is well established that \na Claimant’s prior work history and education are factors to be considered \nin determining eligibility for wage-loss benefits. See Cross v. Crawford \nCounty Memorial Hosp., supra.; Glass v. Edens, supra.; City of Fayetteville \nv Guess, supra.; Curry v. Franklin Electric, supra. \n\nHODGE – H004773  15\n  \n \n \nIn workers’ compensation cases, the Commission functions as the \ntrier of fact. Blevins v. Safeway Stores, 25 Ark. App. 297, 757 S.W.2d 569 \n(1988). The Commission is not required to believe the testimony of the \nClaimant or any other witness but may accept and translate into findings of \nfact only those portions of the testimony it deems worthy of belief. Farmers \nCo-op v. Biles, 77 Ark. App. 1, 69 S.W.3d 899 (2002) The Full Commission \nhas the duty to adjudicate the case de novo and we are not bound by the \ncharacterization of evidence adopted by an administrative law judge. Tyson \nFoods, Inc. v. Watkins, 31 Ark. App. 230, 792 S.W.2d 348 (1990).  \nIn the present matter, the Claimant is 64 years-old. Claimant \ngraduated high school in 1978 and has one semester of post-secondary \neducation. Claimant obtained an Inspector’s License with the Uniform \nFederal Accessibility License and is a certified Welding Inspector. Claimant \ntestified that his prior work-history includes owning a big-rig truck washing \nbusiness, renovations and remodeling for residential homes and \nsubcontracting inspections for residential buildings. Claimant further \ntestified at the hearing that he attempted to work as a window installer, as \nhe had done this kind of work in the past, but he was unable to continue this \nline of work due to the pain he was experiencing in his neck and back. \nClaimant then attempted to re-enter the workforce after his injury as a \nsubcontracted inspector for residential buildings with Leetex. This position \n\nHODGE – H004773  16\n  \n \n \nis two-to-three working days a month for which Claimant receives \napproximately $1400 per month. Claimant has undergone two Functional \nCapacity Evaluations where he received a light-duty classification for work \nand exhibited reliable effort. Claimant has received impairment ratings in \nthe amount of five-percent (5%) to the body as a whole for his shoulder, \nand ten-percent (10%) for the body as a whole for his back as a result of his \ncompensable injuries. Claimant worked with vocational rehabilitation in an \neffort to re-join the workforce for which the rehabilitation consultant, \nKeondra Hampton noted that  Claimant was eager to join the workforce and \nhad exhibited independent effort as well as the effort with her to obtain \ngainful employment. Since Claimant was terminated from his position he \nwas offered two positions, both of which would have paid him significantly \nless than the position he worked with the Respondents where he made \napproximately $47,000 per year.  \n The Full Commission finds that the Claimant sustained wage-loss \ndisability in the amount of 20% in excess of the permanent anatomical \nimpairment accepted and paid by the Respondents. Claimant’s \ncompensable injuries have affected his ability to earn a livelihood. Claimant \nhas limited education. Claimant is unable to perform labor intensive work as \nhe has in the past. Claimant clearly exhibits a willingness to work. Claimant \nis also unable to earn wages equal to or greater than his average weekly \n\nHODGE – H004773  17\n  \n \n \nwage at the time of the accident.  \nAfter reviewing the entire record de novo, therefore, the Full \nCommission finds that the Claimant did not prove he was entitled to \nadditional temporary total disability benefits between May 13, 2021, and \nDecember 20, 2021. The Full Commission finds that the Claimant is not \nentitled to an impairment rating for his cervical spine. The Full Commission \nfinds that the Claimant sustained wage-loss disability in the amount of 20% \nin excess of the permanent anatomical impairment accepted and paid by \nthe Respondents. The Claimant’s attorney is entitled to fees for legal \nservices in accordance with Ark. Code Ann. § 11-9-715(a)(Repl. 2012). For \nprevailing in part on appeal, the Claimant’s attorney is entitled to an \nadditional fee of five-hundred dollars ($500), pursuant to Ark. Code Ann. § \n11-9-715(b)(Repl. 2012).  \nIT IS SO ORDERED. \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner \n \n \nCommissioner Mayton dissents. \n     \n DISSENTING OPINION \n  \n I must respectfully dissent from the Majority’s finding that the \nclaimant is entitled to wage-loss disability benefits in the amount of twenty \n\nHODGE – H004773  18\n  \n \n \npercent (20%) in excess of the permanent anatomical impairment accepted \nand paid by the respondents.  \n When a claimant has been assigned an anatomical impairment \nrating to the body as a whole, the Commission has the authority to increase \nthe disability rating, and it can find a claimant permanently disabled based \non the wage-loss factors. Lee v. Alcoa Extrusion, Inc., 89 Ark. App. 228, \n201 S.W.3d 449 (2005).  \nThe wage-loss factor is the extent to which a compensable injury has \naffected the claimant's ability to earn a livelihood. Enterprise Products \nCompany v. Leach, 2009 Ark. App. 148, 316 S.W.3d 253 (2009).  \nWhen determining wage-loss disability, the Commission may take \ninto account, in addition to the percentage of permanent physical \nimpairment, such factors as the employee’s age, education, work \nexperience, and other matters reasonably expected to affect his or her \nfuture earning capacity.  Ark. Code Ann. § 11-9-522(b)(1); Glass v. Edens, \n233 Ark. 786, 346 S.W.2d 685 (1961).  Other factors may include—but are \nnot limited to—motivation to return to work, post-injury earnings, credibility, \nand demeanor.  Curry v. Franklin Electric, 32 Ark. App. 168, 798 S.W.2d \n130 (1990).  The Commission may use its own superior knowledge of \nindustrial demands, limitations, and requirements in conjunction with the \n\nHODGE – H004773  19\n  \n \n \nevidence to determine wage-loss disability. Taggart v. Mid America \nPackaging, 2009 Ark. App. 335, 308 S.W.3d 643 (2009). \nOur courts also consider the claimant’s motivation to return to work \nsince a lack of interest or negative attitude in pursuing employment \nimpedes the assessment of the claimant's loss of earning capacity. Logan \nCounty v. McDonald, 90 Ark. App. 409, 206 S.W.3d 258 (2005).  \n Here, the claimant was initially released without restriction and \nplaced at maximum medical improvement (MMI) on August 11, 2021.  (Cl. \nEx. 1, P. 220).  At that time, Dr. Wayne Bruffett opined further prescriptions \naddressing the claimant’s pain “would be under Mr. Hodges regular \ninsurance, not Workers’ Comp.” and assigned the claimant a seven percent \n(7%) whole-body impairment rating.  Id.  \nAfter later bilateral hemilaminectomies at L4-5 performed on \nDecember 2, 2021, the claimant underwent a functional capacity evaluation \n(FCE) and was assigned the light work classification and received an \nadditional ten percent (10%) whole-body impairment rating.  (Cl. Ex. 1, Pp. \n236, 281). \n In the time since his injuries, the claimant has worked with a \nvocational rehabilitation counselor, Ms. Keondra Hampton.  In July of 2022, \nMs. Hampton opined that the claimant: \nis an excellent candidate to return \nto the workforce.  He has a stable \n\nHODGE – H004773  20\n  \n \n \nwork history and has acquired \nsome skills and transferrable skills \nfrom his education, training, and \nwork experience that he should be \nable to utilize in returning to a new \nlighter capacity job in the \nfuture.                                                                                                                          \n \n(Cl. Ex. 1, P. 290). However, despite Ms. Hampton’s efforts, the claimant \ndeclined three jobs between September 2022 and January 2023: one \nbecause the offer was too low, another because he felt the work schedule \nwas inconsistent, and another because he was not able to work for a low \nwage of $32,404.94(Cl. Ex. 1, Pp. 299, 304, 319). \n The claimant has an extensive work history, including work as a \ncertified welding inspector, certified appraiser, licensed home inspector, \ncertified lead paint inspector, and licensed general contractor. (Hrng. Tr., \nPp. 57-58). His lifetime of work has provided him with knowledge of HUD \nquality standards and Life Safety Code requirements for institutional \nfacilities.  Id. The claimant has previously owned a home remodeling \ncompany and a truck washing business which led to a business \nmanufacturing soap for truck washing.  Id. The claimant’s testimony \nrevealed that the claimant can: \n• read and write; \n• drive his own vehicle for up to two hours; \n• evaluate blueprints and building plans; \n\nHODGE – H004773  21\n  \n \n \n• prepare food for himself; \n• operate a computer; \n• fish; \n• lift and carry firewood; and \n• do research and type reports. \n(Hrng. Tr., Pp. 82, 83, 85). \n The claimant is currently working part-time as a building and \nconstruction inspector for Leetex.  He is limited by HUD to two inspections a \nday and is paid $350.00 per inspection. (Hrng. Tr, Pp. 77-79). Even though \nhe is limited by HUD to two inspections a day, this does not prevent him \nfrom going out and doing inspections for other companies or their \ncontractors.  Id.  \n The claimant has failed to establish that he is entitled to wage-loss \nbenefits in excess of his permanent impairment rating. He is currently \nworking in a field commensurate with his skills and experience, and he has \nturned down multiple opportunities for work through vocational \nrehabilitation. He has attained various professional licenses and \ncertifications. This is simply a case of the claimant not wishing to re-enter \nthe workforce on a full-time basis, as there is no evidence that his inability \nto obtain gainful employment is related to anything beyond his own self-\nlimiting behavior.  \n\nHODGE – H004773  22\n  \n \n \nIn his current job, he is limited by HUD to two inspections per day at \n$350.00 per inspection but is not prohibited from doing unlimited \ninspections for another company or contractor. The claimant has extensive \nknowledge and experience in his field and remains highly employable.  \nThe record does not reflect that the claimant’s inability to find work is \ncausally related to his on-the-job injury, and he is therefore not entitled to \nwage-loss benefits. \nAccordingly, for the reasons stated above, I respectfully dissent. \n                                                    \n___________________________________ \n                                           MICHAEL R. MAYTON, Commissioner","preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H004773 DONALD P. HODGE, EMPLOYEE CLAIMANT DEPT. OF HUMAN SERVICES, EMPLOYER RESPONDENT PUBLIC EMPLOYEE CLAIMS DIVISION, INSURANCE CARRIER RESPONDENT OPINION FILED AUGUST 7, 2024","fetched_at":"2026-05-19T22:29:45.134Z","links":{"html":"/opinions/full_commission-H004773-2024-08-07","pdf":"https://labor.arkansas.gov/wp-content/uploads/Hodge_Donald_H004773_20240807.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/"}}