Nathan Tackett vs. City Of Little Rock

BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. G702582 NATHAN TACKETT, EMPLOYEE CLAIMANT CITY OF LITTLE ROCK, SELF -INSURED EMPLOYER RESPONDENT RISK MANAGEMENT RESOURCES, TPA RESPONDENT OPINION FILED APRIL 9, 2025 Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas. Claimant represented by the HONORABLE GARY DAVIS, Attorney at Law, Little Rock, Arkansas. Respondents represented by the HONORABLE MELISSA WOOD, Attorney at Law, Little Rock, Arkansas. Decision of Administrative Law Judge: Reversed OPINION AND ORDER The Claimant appeals an administrative law judge’s opinion filed October 8, 2024. The administrative law judge found that the Claimant failed to prove by a preponderance of the evidence that he is entitled to wage-loss disability benefits as a result of his compensable right upper extremity injury resulting from an accident on March 17, 2017. After reviewing the entire record de novo, the Full Commission finds that Claimant is entitled to 14% wage-loss disability benefits as a result of his compensable injury.

TACKETT – G702582 2 I. HISTORY The testimony of Nathan Tackett, now age 62, indicated that he became employed with the Respondent, Little Rock Police Department on October 28,1985. Mr. Tackett testified that he had been employed as a Shift Commander for the Downtown Patrol Division’s Day Watch for the Respondent in 2017. The parties stipulated that the employee-employer relationship existed on March 17, 2017. The Claimant testified on direct examination: Q. Now, tell us how you got hurt? A. We were required to do annual 40 hours of in-service training every year and during the course of that training, we did a scenario where we were simulating chasing a suspect that had bailed out of a car on the parking lot there at the Training Division, an asphalt parking lot. Me and my partner and the suspect took off running one way, ran around a Conex Storage Container and my partner took off running behind him. I went the other way to try to cut him off on the other side of the storage container. Before I got to that end, the suspect came back around the corner. The officer roll playing and fired blanks towards us. I spun around to engage the suspect and there was a fine sandy substance on the asphalt parking lot, like after a rain you can, usually, see. And you know, there’s little dips where water collects and things like that. When I was spinning around, being so graceful on my feet, I got my feet all tangled up, spun around and fell. I tried to brace my fall. I pushed back and I saw a pick-up behind me and I tried to – thought if I could bounce off the hood with my back, and then, just kind of slide down behind it, it wouldn’t hurt as bad. Bounced off the truck, and then hit the ground rolling and I don’t know how you can manage to land, literally,

TACKETT – G702582 3 right on top of your shoulder but that’s what hit the pavement first and that’s how the injury occurred. The parties stipulated that the Claimant sustained a compensable injury to his right shoulder on March 17, 2017. On May 10, 2017, according to the record, Claimant reported to Arkansas Specialty Orthopaedics where he underwent an x-ray and MRI of his right shoulder and was diagnosed with a full thickness right shoulder rotator cuff tear. The Claimant’s testimony indicated that he underwent surgery by Dr. Kirk Reynolds on May 23, 2017 for his compensable right shoulder injury. The record indicates that Claimant was seen by Dr. Kirk Reynolds on January 31, 2018, who stated: It is my professional opinion that Mr. Tackett has reached maximum medical improvement. He may return to work full, unrestricted duty. No further treatment or follow up is recommended. Dr. Kirk Reynolds then gave Claimant an impairment rating of “11% total, partial permanent impairment of the right shoulder. This [equates to] a 7% impairment of the whole person.” According to the record, Claimant then followed up with Dr. Kirk Reynolds on October 18, 2018. Dr. Reynolds noted: The patient reports pain in the right shoulder. He states he is experiencing progressive numbness in the right

TACKETT – G702582 4 fingers and notes difficulty with grip strength, specifically with opening things and holding things. He adds the numbness affects the whole hand. Dr. Reynolds then referred the Claimant for an MRI scan of the right shoulder as well as the cervical spine and an EMG/NCV to evaluate for central versus peripheral nerve compression. Dr. Reynolds stated that Claimant had not reached maximum medical improvement and the Claimant was to remain on current restrictions at work with no change to his impairment rating. According to the record, an MRI of the Claimant’s right shoulder and C-Spine was taken on October 18, 2018 and evaluated by Dr. Kirk Reynolds: MRI scan of the right shoulder performed on 10/18/2018 was personally reviewed and demonstrates a recurrent rotator cuff tear with the residual tendon stump at the level of the glenohumeral joint. There is superior escape of the humeral head but no significant abutment with the undersurface of the acromion. On the T1 sagittal images, there is significant volume loss in the supraspinatus fossa with grade 2 atrophy on the supraspinatus muscle belly and grade 3 4 atrophy of the infraspinatus muscle belly. Teres minor and subscapularis muscle bellies appear normal with no atrophy. On the axial images, there are changes consistent with a prior distal clavical excision and there is at least a partial thickness tear of the subscapularis tendon with some laxity of the tendon fibers. MRI scan of the cervical spine performed on 10/18/2018 was personally reviewed and demonstrates

TACKETT – G702582 5 multilevel disc desiccation and degenerative disc disease but there is no significant neural foraminal narrowing at any level. On October 22, 2018, Dr. Stephen Paulus performed an EMG on Claimant which demonstrated significant right carpal tunnel syndrome but no evidence of cervical radiculopathy. Based on the findings of the MRI and EMG, Dr. Reynolds found that Claimant required a reverse shoulder arthroplasty of the right shoulder within the next 3-5 years of his visit in November of 2018. Dr. Reynolds specifically stated that the need for the additional medical procedure was “100% related to his original work injury,” and that he would not recommend the reverse shoulder arthroplasty currently, as it would medically retire the Claimant. Dr. Reynolds further stated that Claimant had not reached maximum medical improvement. Claimant followed up with Dr. Kirk Reynolds on May 6, 2019 for his compensable right shoulder injury. The medical records in evidence indicate persistent weakness and pain in the Claimant’s right shoulder. Dr. Reynolds found that the Claimant was not at maximum medical improvement. Claimant continued treatment with Dr. Kirk Reynolds through 2019 without reaching maximum medical improvement. On November 11, 2020, Claimant was again seen by Dr. Reynolds. Claimant reported

TACKETT – G702582 6 to Dr. Reynolds that his symptoms were worsening. Claimant remained on full, unrestricted duty at work but was again not found at maximum medical improvement by Dr. Reynolds. On February 26, 2021, Claimant was seen by Dr. Kirk Reynolds. Claimant reported to Dr. Reynolds that he was “ready to consider arthroplasty,” for his compensable right shoulder injury. Dr. Reynolds reported: I explained the nature of the reverse shoulder arthroplasty and how it will limit his ability to lift, push and pull with any weight heavier than approximately 15 to 20 pounds after surgery. This will be likely a lifetime restriction. Claimant underwent right reverse total shoulder arthroplasty on July 8, 2021, as recommended and performed by Dr. Kirk Reynolds. Following the surgery, Claimant was placed on modified duty at work with no use of the right upper extremity. On August 18, 2021, Dr. Reynolds opined: Mr. Tackett remains on modified duty at work with the following restrictions: Continue with no use of right upper extremity. He has not yet cleared to operate or travel in a motor vehicle except for necessary doctors visits, physical therapy, religious services, or absolutely essential personal needs. I realize that these work restrictions are very restrictive. That is by design. Mr. Tackett remains an active duty police officer with the Little Rock Police Department. He is recovering from a prosthetic shoulder reconstruction. I do not want him being involved in any activities where he would be identified as a police officer and potentially have to

TACKETT – G702582 7 defend himself, on of his partners, or a member of the community. This poses an inherent risk to his reverse total shoulder arthroplasty. His work activities will be lessened when he is seen for his next visit. On September 29, 2021, Claimant was seen by Dr. Reynolds who stated that Claimant was still on modified duty at work with no use of the right upper extremity and only occasional driving. Dr. Reynolds opined that Claimant was not at maximum medical improvement. In 2014, Claimant entered the Deferred Retirement Option Plan (hereinafter referred to as “DROP”) which resulted in a mandatory retirement date in October of 2021. Claimant retired on October 31, 2021 pursuant to the terms of the DROP. Claimant testified: Q. Now, this retirement date, was it not pre- determined? A. In essence it was. Q. And when I say, “pre,” I mean, pre-injury determined, because you only can stay on a job so long, isn’t that right. A. Yes, sir. I was on the Seven-Year DROP at the time. Now, it’s extended to ten, but at the time I was on the Seven-Year DROP. If memory serves me correctly, I was already on DROP, when the first injury occurred. Further, Claimant testified as to his retirement: Q. Okay. But if you do retire, if you do take a retirement – a forced retirement because of your number of years of service and your particular contract that you had with retirement, do you not have an opportunity to go back to work? A. Yes, sir. There’s actually, a provision under the state supervised retirement plan, LOPFI, Local Police and Fire System. They enacted some regulations that were

TACKETT – G702582 8 in effect at the time, before I retired that would permit you to separate, retire, be gone 90 days and come back and be reinstated at your former employment and that was an opportunity; however, due to my injury, I would not have been able to pass the physical, the pre- employment physical agility test and/or the medical physical examination. On December 30, 2021, Dr. Kirk Reynolds reported that he anticipated Claimant’s release at maximum medical improvement in approximately six months and continued the Claimant’s modified duty at work with a 15-pound lifting, pushing, and pulling limit with the right upper extremity. Claimant was seen by Dr. Kirk Reynolds on July 3, 2022. Dr. Reynolds opined that Claimant reached maximum medical improvement stating: No further treatment is likely to provide an improvement in functional activities with the right shoulder. He understands that he will always have some permanent limitations with regards to the ability to lift, push, and pull, as well as, perform repetitive and extended work overhead. Internal rotation range of motion is the most unpredictable part of a reverse shoulder arthroplasty. I do not anticipate he will regain “normal” internal rotation of the shoulder. He has a permanent lifting, pushing, pulling restriction with the right upper extremity of 15 pounds. He also has a permanent restriction of only occasional work above shoulder level. Considering the complicating and additional medical care required for the Claimant’s compensable right shoulder injury, Dr. Reynolds

TACKETT – G702582 9 assessed partial, permanent impairment of 43% to the right upper extremity or 26% to the whole body. The parties stipulated in the pre- hearing order filed May 22, 2024 that the Respondents have paid permanent partial disability benefits associated with the 26% rating to the body as a whole. A pre-hearing order was filed on May 22, 2024. According to the text of the pre-hearing order, the Claimant contended the following: “Claimant contends that he has sustained compensable injuries to his right shoulder 3/17/17, that he has been found to have permanent impairment, and that he is entitled to a wage loss disability determination.” The Respondents contended, “Respondents contend that all appropriate benefits are being paid with regard to Claimant’s compensable right shoulder injury sustained on 3/17/17. Claimant continued to work for the City of Little Rock after his injury until he retired and moved to Florida.” The parties agreed to litigate the following issues: 1. Whether the Claimant is entitled to wage loss disability benefits. 2. Attorney’s fees. An administrative law judge filed an opinion on October 8, 2024. The administrative law judge found that the Claimant failed to

TACKETT – G702582 10 prove that he is entitled to wage loss benefits in any amount, and that Claimant’s attorney is not entitled to an attorney’s fee consistent with these findings. The administrative law judge therefore denied and dismissed the claim. The Claimant appeals to the Full Commission. II. ADJUDICATION (A) Wage-Loss Wage-Loss factor is the extent to which a compensable injury has affected the Claimant’s ability to earn a livelihood. Cross v. Crawford County Mem. Hosp., 54 Ark. App. 130, 923 S.W.2d 886 (1996). The Commission is charged with the duty of determining disability. Id. In considering claims for permanent partial disability exceeding the employee’s percentage of permanent physical impairment, the Commission may take into account, in addition to the percentage of permanent physical impairment, such factors as the employee’s age, education, work experience, and other matters reasonably expected to affect his future earning capacity. Ark. Code Ann. § 11-9-522(b)(1)(Repl. 2012). Such other matters are motivation, post-injury income, credibility, demeanor, and a multitude of other factors. Glass v. Edens, 233 Ark. 786, 346 S.W.2d 685 (1961): City of Fayetteville v. Guess, 10 Ark. App. 313, 663 S.W.2d 946 (1984); Curry v. Franklin Electric, 32 Ark. App. 168, 798 S.W.2d 130 (1990); Cross v.

TACKETT – G702582 11 Crawford County Memorial Hosp., supra. It is well established that a Claimant’s prior work history and education are factors to be considered in determining eligibility for wage-loss benefits. See Cross v. Crawford County Memorial Hosp., supra.; Glass v. Edens, supra.; City of Fayetteville v Guess, supra.; Curry v. Franklin Electric, supra. Ark. Code Ann. §11-9-102(4)(Repl. 2012) further provides, in pertinent part: (F)(ii)(a) Permanent benefits shall be awarded only upon a determination that the compensable injury was the major cause of the disability or impairment. “Major cause” means “more than fifty percent (50%) of the cause,” and a finding of major cause shall be established according to the preponderance of the evidence. Ark. Code Ann. §11-9-102(14)(Repl. 2012). Preponderance of the evidence means the evidence having greater weight or convincing force. Metropolitan Nat’l Bank v. La Sher Oil Co., 81 Ark. App. 269, 101 S.W.3d 252 (2003). In workers’ compensation cases, the Commission functions as the trier of fact. Blevins v. Safeway Stores, 25 Ark. App. 297, 757 S.W.2d 569 (1988). The Commission is not required to believe the testimony of the Claimant or any other witness but may accept and translate into findings of fact only those portions of the testimony it deems worthy of belief. Farmers Co-op v. Biles, 77 Ark. App. 1, 69

TACKETT – G702582 12 S.W.3d 899 (2002) The Full Commission has the duty to adjudicate the case de novo and we are not bound by the characterization of evidence adopted by an administrative law judge. Tyson Foods, Inc. v. Watkins, 31 Ark. App. 230, 792 S.W.2d 348 (1990). In the present matter, the Claimant is 62 years-old. Claimant graduated high school in 1980. Claimant obtained approximately 55-60 hours of post-secondary education. After graduating high school, Claimant joined the Yell County Sheriff’s office and the Russellville Police Department before joining the Little Rock Police Department (hereinafter referred to as “LRPD”) in 1985 as a Patrol Officer. From 1988 through 1990 Claimant was an Undercover Detective with the Organized Crime and Intelligence Division as a Vice Squad with the LRPD. Claimant then became an Investigator for the LRPD Training Division and was promoted in August of 1994 to Sergeant. Claimant remained in this position until February of 2001 after which he was promoted to Commander of Special Operations for the Northwest Patrol Division of LRPD. Claimant remained in that position until June of 2016. On March 17, 2017, Claimant was working as the Shift Commander for the Downtown Patrol Division of the LRPD. On October 31, 2021, Claimant retired from the LRPD. At the time of his retirement, the Claimant held a full-time position earning $82,908. Following his

TACKETT – G702582 13 retirement, the Claimant had the option of waiting 90-days and reapplying for a job with the Respondent. However, the credible proof suggests that he would be considered a new employee and required to perform an agility test. The credible proof further suggests that the Claimant would not be able to perform such an agility test. The Claimant relocated to Florida in April of 2023, and re-entered the work force as a security officer for the University of West Florida. The Claimant’s new position is a full-time job and has an annual salary of $50,000. A significant reduction from his position with the Respondent. Claimant’s compensable injury has negatively affected his ability to earn a livelihood. Claimant’s compensable injury is the major cause of his disability or impairment. Claimant has limited education. Claimant is unable to perform labor intensive work as he did in the past. Claimant clearly exhibits a willingness to work. Claimant is also unable to earn wages equal to or greater than the wages he earned prior to the accident. Based upon these facts and conclusions the Full Commission finds that the Claimant sustained wage-loss disability in the amount of 14% in excess of the permanent anatomical impairment accepted and paid by the Respondents and further finds that the major cause of the additional disability and impairment was related to the Claimant’s compensable injury.

TACKETT – G702582 14 After reviewing the entire record de novo, therefore, the Full Commission finds that the Claimant proved that he is entitled to wage- loss benefits in the amount of 14% in addition to his given 26% whole- body impairment rating. The Claimant’s attorney is entitled to fees for legal services in accordance with Ark. Code Ann. § 11-9-715(a)(Repl. 2012). For prevailing on appeal, the Claimant’s attorney is entitled to an additional fee of five-hundred dollars ($500), pursuant to Ark. Code Ann. § 11-9-715(b)(Repl. 2012). IT IS SO ORDERED. ___________________________________ SCOTTY DALE DOUTHIT, Chairman ___________________________________ M. SCOTT WILLHITE, Commissioner Commissioner Mayton dissents. DISSENTING OPINION I must respectfully dissent from the majority’s opinion finding the claimant proved he is entitled to wage-loss benefits in the amount of 14% as a result of his compensable injury. The claimant, now 62 years old, sustained a compensable shoulder injury in March 2017 during a training exercise with the Little Rock Police Department (LRPD).

TACKETT – G702582 15 The claimant retired from LRPD on October 31, 2021, and has since moved to Florida where he is currently working as a security guard for a public university and acts as an independent contractor conducting government background checks for two different companies. When a claimant has been assigned an anatomical impairment rating to the body as a whole, the Commission has the authority to increase the disability rating, and it can find a claimant permanently disabled based upon wage-loss factors. Lee v. Alcoa Extrusion, Inc., 89 Ark. App. 228, 201 S.W.3d 449 (2005). The wage-loss factor is the extent to which a compensable injury has affected the claimant's ability to earn a livelihood. Enterprise Products Company v. Leach, 2009 Ark. App. 148, 316 S.W.3d 253. When determining wage-loss disability, the Commission may take into account, in addition to the percentage of permanent physical impairment, such factors as the employee’s age, education, work experience, and other matters reasonably expected to affect his or her future earning capacity. Ark. Code Ann. §11-9-522(b)(1). Other factors may include but are not limited to motivation to return to work, post-injury earnings, credibility, and demeanor. Curry v. Franklin Electric, 32 Ark. App. 168, 798 S.W.2d 130 (1990). A lack of interest in pursuing employment

TACKETT – G702582 16 impedes the assessment of the claimant's loss of earning capacity. Logan County v. McDonald, 90 Ark. App. 409, 206 S.W.3d 258 (2005). The Commission may use its own superior knowledge of industrial demands, limitations, and requirements in conjunction with the evidence to determine wage-loss disability. Taggart v. Mid America Packaging, 2009 Ark. App. 335, 308 S.W.3d 643. The claimant is a high school graduate with between fifty-five (55) and sixty (60) hours of college credit. Claimant worked for the Yell County Sheriff’s office and the Russellville Police Department before joining the Litle Rock Police Department in 1985. Between 2014 and 2016, the claimant entered the Deferred Retirement Option Plan (DROP) through the respondent employer. The claimant testified that once an employee enrolls in DROP, his retirement date is set at the time the claimant enrolled. The claimant’s retirement date was set for seven (7) years after enrollment. The claimant’s retirement from LRPD was effective October 31, 2021, and he receives $3,000 a month in retirement benefits. Major Christina Plummer with LRPD testified that had the claimant not enrolled in DROP, he could still be employed with the City of Little Rock. After his retirement, the claimant returned to work with the City of Little Rock as an EEO Investigator earning $35 an hour on a part-time

TACKETT – G702582 17 basis. The claimant moved to Florida in April of 2023 where he is a full-time security officer for the University of West Florida, earning $50,000 per year. In addition, the claimant makes an average of $35.00 an hour conducting background checks for Omniplex and ABC, companies that contract with the government to process security clearances. The claimant testified he can “pick and choose when I want to do it and how much, you know I can take on as far as workload.” At the time of his retirement from LRPD, the claimant was making $39.86 per hour, or approximately $82,908 per year. With his combined retirement benefits and income from the University of West Florida, the claimant is currently earning approximately $86,000 per year. In addition, he has had two other part-time jobs averaging $35.00 per hour. So, the claimant is actually receiving more money per year now than he was earning for the respondent employer. At the hearing, the claimant did not offer testimony he had applied for any jobs and was not hired due to his physical limitations that paid more than his current job at the University of West Florida. He testified he considers his current role as a security guard “very well paid” and has offered no examples of how his injury has limited his ability to work in any field.

TACKETT – G702582 18 The only reason the claimant did not remain employed by the respondent employer is the fact he voluntarily entered the DROP Program and had to retire when the seven-year period expired. He did not leave his employment with the respondent employer because of his compensable injury, but as a result of his entry into the DROP Program. If he had not entered the DROP Program, he could still be employed with the respondent employer earning more wages than he was earning at the time of the accident in question. The claimant has failed to prove he is entitled to wage-loss disability. Accordingly, for the reasons set forth above, I must dissent. ___ _________ MICHAEL R. MAYTON, Commissioner