{"id":"full_commission-H109437-2024-04-04","awcc_number":"H109437","decision_date":"2024-04-04","opinion_type":"full_commission","claimant_name":"Lisa Pozner","employer_name":"Uams","title":"POZNER VS. UAMS AWCC# H109437 APRIL 4, 2024","outcome":"granted","outcome_keywords":["granted:1"],"injury_keywords":["back"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/Pozner_Lisa_H109437_20240404.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Pozner_Lisa_H109437_20240404.pdf","text_length":15211,"full_text":"NOT DESIGNATED FOR PUBLICATION \n \n \nBEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \nCLAIM NO.  H109437 \n \nLISA POZNER, \nEMPLOYEE \n \nCLAIMANT \nUAMS,  \nEMPLOYER \n \nRESPONDENT \nPUBLIC EMPLOYEE CLAIMS DIVISION, \nINSURANCE CARRIER/TPA \nRESPONDENT \n  \n      \nOPINION FILED APRIL 4, 2024 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE MARK A. PEOPLES, Attorney \nat Law, Little Rock, Arkansas. \n \nRespondents represented by the HONORABLE CHARLES H. McLEMORE, \nJR., Attorney at Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Affirmed and Adopted. \n \n OPINION AND ORDER \n The respondents appeal and the claimant cross-appeals an \nadministrative law judge’s opinion filed September 6, 2023.  The \nadministrative law judge entered the following findings of fact and \nconclusions of law: \n1. The Arkansas Workers’ Compensation Commission has \njurisdiction over this claim. \n \n2. The stipulations set forth above are reasonable and are hereby \naccepted. \n \n3. The Claimant is not entitled to permanent total disability      \nbenefits but is entitled to wage-loss disability in the amount of \n\nPOZNER - H109437  2\n  \n \n \n35% in addition to Claimant’s 7% permanent anatomical \nimpairment. \n \n4.  Claimant is entitled to controverted attorney fees.   \n \n After reviewing the entire record de novo, it is our opinion that the \nadministrative law judge’s decision is supported by a preponderance of the \nevidence, correctly applies the law, and should be affirmed.  Based on a \npreponderance of the evidence of record, we find that the administrative law \njudge’s findings of fact are correct and should be adopted by the Full \nCommission.   \n Therefore, we affirm and adopt the September 6, 2023 decision of \nthe administrative law judge, including all findings and conclusions therein, \nas the decision of the Full Commission on appeal and cross-appeal.  The \nclaimant’s attorney is entitled to fees for legal services in accordance with \nArk. Code Ann. §11-9-715(a)(Repl. 2012).  For prevailing in part on appeal \nto the Full Commission, the claimant’s attorney is entitled to an additional \nfee of five hundred dollars ($500), pursuant to Ark. Code Ann. §11-9-\n715(b)(Repl. 2012). \nIT IS SO ORDERED. \n \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner \n \n\nPOZNER - H109437  3\n  \n \n \nCommissioner Mayton dissents. \n \n \nDISSENTING OPINION \n \nI respectfully dissent from the majority’s opinion finding that the \nclaimant has proven by a preponderance of the credible evidence that she \nis entitled to wage loss disability in the amount of 35% in addition to her 7% \nanatomical impairment rating.  \n The claimant suffered a compensable back injury when she hyper-\nextended her back away from an HIV positive patient after receiving an \naccidental needle stick.  (Hrng. Tr., P. 12).  Dr. Jarna Shah performed a \nkyphoplasty procedure on the claimant on November 2, 2021.  (Cl. Ex. 1, \nPp. 9, 11).  \nThe claimant obtained a Change of Physician order through the \nCommission and began treating with Dr. Ali Raja, who prescribed a back \nbrace.  (Hrng. Tr, P. 64).  Dr. Raja cannot state within a reasonable degree \nof medical certainty that the subsequent fractures found are a result of the \nclaimant’s initial injury.  (Resp. Ex. 1, Pp. 88-89).  The claimant currently \nhas no additional surgeries planned.  (Hrng. Tr, P. 63). \n On December 19, 2022, the claimant underwent a functional \ncapacity evaluation (FCE) and was assigned a seven percent (7%) whole-\nbody impairment rating and received a sedentary work restriction.  (See \n\nPOZNER - H109437  4\n  \n \n \nResp. Ex. 1, Pp. 94-113).  Respondents have accepted and are paying the \nimpairment rating.  \nThe claimant has undergone and refused vocational rehabilitation, \nrequested that her vocational rehabilitation file be closed and, to date, has \nnot returned to work.  (Resp. Ex. 2, Pp. 35-46). \n A hearing was held on August 22, 2022, and the claimant contended \nthat she is entitled to permanent total disability or, alternatively, wage-loss \ndisability in excess of her impairment rating.  An administrative law judge \n(ALJ) ruled that the claimant is not permanently and totally disabled, but \nthat she is entitled to thirty five percent (35%) wage-loss disability in excess \nof her impairment rating.  \nWhen a claimant has been assigned an anatomical impairment \nrating to the body as a whole, the Commission may increase the disability \nrating and find a claimant permanently disabled based on the wage-loss \nfactors.  Lee v. Alcoa Extrusion, Inc., 89 Ark. App. 228, 201 S.W.3d 449 \n(2005).  The wage-loss factor is the extent to which a compensable injury \nhas affected the claimant's ability to earn a livelihood.  Enterprise Products \nCompany v. Leach, 2009 Ark. App. 148, 316 S.W.3d 253 (2009).  When \ndetermining wage-loss disability, the Commission may take into account, in \naddition to the percentage of permanent physical impairment, such factors \nas the employee’s age, education, work experience, and other matters \n\nPOZNER - H109437  5\n  \n \n \nreasonably expected to affect his or her future earning capacity.  Ark. Code \nAnn. § 11-9-522(b)(1); Glass v. Edens, 233 Ark. 786, 346 S.W.2d 685 \n(1961).  Other factors may include—but are not limited to—motivation to \nreturn to work, post-injury earnings, credibility, and demeanor.  Curry v. \nFranklin Electric, 32 Ark. App. 168, 798 S.W.2d 130 (1990).  \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).  \nThe Commission may use its own superior knowledge of industrial \ndemands, limitations, and requirements in conjunction with the evidence to \ndetermine wage-loss disability.  Taggart v. Mid Am. Packaging, 2009 Ark. \nApp. 335, 308 S.W.3d 643 (2009). \nThe  claimant  elected  to  discontinue  vocational  rehabilitation  and  job \nplacement  assistance  and  is,  therefore,  barred  from  receiving  wage-loss \nbenefits.  The 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 \nto enter any program of vocational \nrehabilitation against his or her \nconsent; however, no employee \nwho waives rehabilitation or \nrefuses to participate in or \ncooperate for reasonable cause \n\nPOZNER - H109437  6\n  \n \n \nwith either an offered program of \nrehabilitation or job placement \nassistance shall be entitled to \npermanent partial disability benefits \nin excess of the percentage of \npermanent physical impairment \nestablished 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 or job-\nplacement assistance or, through some other affirmative action, indicated \nan unwillingness 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 (2022). \nHere, the claimant was provided vocational rehabilitation counseling \non February 22, 2023.  After her initial evaluation, Keondra Hampton, the \nclaimant’s vocational rehabilitation consultant, issued an opinion on March \n2, 2023, concluding that “[b]ased on her past work history, education, skills, \nand functional abilities, it is my opinion [claimant] will be able to return to the \nworkforce in the future to a position that is consistent with her physical \nabilities and her skill set.” (Resp. Ex. 2, P. 35).  Ms. Hampton opined that \nthe claimant “is capable of working within the Sedentary category of \nphysical work demands,” and recommended services for drafting a resume, \nproviding interview skills training, seeking training for computer skills, \n\nPOZNER - H109437  7\n  \n \n \nassisting with online job applications, and completing job market research. \n(Resp. Ex. 2, P. 43).  \nMs. Hampton provided the claimant with nine remote-work positions \nby April 6, 2023, but alleging that she was “unable to complete the job \napplications on the computer due to her pain” and that she was “unable to \nwork at a computer for an eight-hour workday,” the claimant voluntarily \ndiscontinued vocational rehabilitation at that time.  (Resp. Ex. 2, Pp. 44-45). \nThe claimant provided various excuses for discontinuing vocational \nrehabilitation; however, none provided reasonable cause as required by our \nrules. First, the claimant contends that she informed Ms. Hampton that she \nwas applying for jobs on her own, informing her:  \n“I don’t think I can work,” because I \nhad already had a lot of rejection.  \n \nA lot of these jobs they said I was \noverqualified for.  They wanted \none year of nursing, two years of \nnursing, but I applied for them \nanyways.  I told her, “At this time, I \ncannot work.”  (Hrng. Tr., Pp. 68-\n69). \n \nThe claimant also asserts at many points that she simply cannot \nwork.  (See Hrng. Tr., P. 69).  This, of course, is contrary to the medical \nevidence, the claimant’s FCE, and Ms. Hampton’s findings.  There is no \nevidence, beyond the claimant’s own self-limiting behaviors, that she is \nunable to reliably work from her own home full-time.  \n\nPOZNER - H109437  8\n  \n \n \nThe claimant has been assigned a sedentary work restriction, and \nMs. Hampton believes that the claimant can return to work, providing her \nnumerous opportunities to do so.  It is clear that the claimant does not wish \nto work despite having the documented physical ability to do so.  She has \nrejected any offer of assistance working on a phone or computer despite \nadmittedly being able to work at home on her laptop.  (See Hrng. Tr, p. 52). \nThere are no plans for any surgery that would improve or change her \ncondition and the claimant acknowledges that she is at maximum \nimprovement.  (Hrng. Tr., Pp. 75-76).  These behaviors are a clear \nindication that the claimant has refused vocational rehabilitation without \ngood cause and is not entitled to wage-loss disability. \nAs stated above, 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).  \nThe Commission may also consider other permanent disability \nfactors such as the claimant's age, education, work experience, medical \nevidence and other matters reasonably expected to affect the worker's \nfuture earning power.  City of Fayetteville v. Guess, 10 Ark. App. 313, 663 \n\nPOZNER - H109437  9\n  \n \n \nS.W.2d 946 (1984).  These factors are considered in Beal v. Fairfield Bay \nCnty. Club, Inc., 2011 Ark. App. 136 (2011) where the Court of Appeals \nstated: \nBeal further testified that he had \nworked all of his life but that he \nhas not returned to work because \n\"they are not going to let him back \nout there, as no doctor is going to \npass him on a physical and drug \ntest and stuff.\"  Beal is blind in his \nleft eye, but admitted to having \nglaucoma before his \ninjury.  According to Beal he does \nnot feel that there are any jobs he \ncan perform and is now retired. \nThe Commission disagreed and \nconcluded that \"the evidence \nshows that [Beal] is clearly not \nmotivated to return to any form of \ngainful employment\" and noted \nthat Beal's lack of motivation is a \nvalid consideration in its denial of \nBeal's wage-loss disability \nclaim.  City of Fayetteville v. \nGuess, 10 Ark. App. 313, 663 \nS.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\nPOZNER - H109437  10\n  \n \n \nthat the claimant developed skills as a cake decorator that would serve her \nwell in other lines of work.  Id. \nIn the present case, the claimant has a bachelor’s degree in English \nLiterature and Psychology; a Bachelor of Arts in Social Work; a Master of \nArts in Counseling Psychology; a Bachelor of Science in Nursing; and a \nMaster of Science in Nursing.  (Hrng. Tr., Pp. 34-38; Resp. Ex. 2, P. 39). \nThroughout her career, the claimant has been certified as a registered \nnurse, an advanced practice registered nurse, and an adult-gerontology \nprimary care nurse practitioner.  Id.  The claimant has been educated in \nCanada, Israel, and the United States and speaks some Hebrew, French, \nand Yiddish.  (Hrng. Tr., Pp. 36-40; Resp. Ex. 2, P. 39).  Her work history \nincludes work as a counselor, at one point owning her own practice; \nworking in a call-in crisis center; working as a nurse supervisor; and acting \nas a nursing contact tracer over the phone during COVID.  (Hrng. Tr., Pp. \n61, 67; Resp. Ex. 2, P. 40).  She has earned a significant income \nthroughout her career.  (Resp. Ex. 2, P. 70). \nAlthough the claimant contends that she is unable to find work, in \npart due to her medications, she has shown that she is capable of \nfunctioning without them.  (Hrng. Tr., P. 45, 80-84).  At the hearing, she \ntestified that she had not taken her medications that day, nor had she taken \nthem the day that she underwent her FCE and performed reliably.  (Hrng. \n\nPOZNER - H109437  11\n  \n \n \nTr., Pp. 56, 64-65; Resp. Ex. 1, P. 95).  It is clear that these medications are \nanother self-limiting excuse by the claimant. \nAs discussed above, the claimant is limited to sedentary work; \nhowever, work opportunities fitting within her qualifications and restrictions \nhas been offered to her and rejected.  The claimant has the education and \nskills necessary to continue her career in a range of professions, either over \nthe telephone or by computer, as she has done in the past, she simply \nchooses not to do so.  Under our rules, the standard requires that a \nclaimant show at least some motivation to return to the workforce in any \ncapacity to be entitled to wage loss disability and the claimant here has \nrefused to do so in any capacity. \nThe claimant’s refusal to participate in vocational rehabilitation and \njob placement assistance renders her ineligible for wage-loss benefits and, \nas a result, she is limited to seven percent (7%) anatomical impairment \nrating. \nAccordingly, for the reasons set forth above, I must dissent. \n \n \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner","preview":"NOT DESIGNATED FOR PUBLICATION BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H109437 LISA POZNER, EMPLOYEE CLAIMANT UAMS, EMPLOYER RESPONDENT PUBLIC EMPLOYEE CLAIMS DIVISION, INSURANCE CARRIER/TPA RESPONDENT","fetched_at":"2026-05-19T22:29:45.678Z","links":{"html":"/opinions/full_commission-H109437-2024-04-04","pdf":"https://labor.arkansas.gov/wp-content/uploads/Pozner_Lisa_H109437_20240404.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/"}}