Earl Glass vs. Arkansas Department Of Correction

NOT DESIGNATED FOR PUBLICATION BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NOS. H005827 & H106715 EARL GLASS, EMPLOYEE CLAIMANT ARKANSAS DEPARTMENT OF CORRECTION, EMPLOYER RESPONDENT PUBLIC EMPLOYEE CLAIMS DIVISION, TPA RESPONDENT OPINION FILED JANUARY 15, 2026 Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas. Claimant represented by the HONORABLE ANDY L. CALDWELL, Attorney at Law, Little Rock, Arkansas. Respondents represented by the HONORABLE CHARLES H. MCLEMORE, Attorney at Law, Little Rock, Arkansas. Decision of Administrative Law Judge: Affirmed and Adopted. OPINION AND ORDER Respondents appeals and claimant cross-appeals an opinion and order of the Administrative Law Judge filed on May 20, 2025. In said order, the Administrative Law Judge made the following findings of fact and conclusions of law: 1. The Arkansas Workers’ Compensation Commission has jurisdiction over this claim. 2. The stipulations set forth above are reasonable and are hereby accepted. 3. Claimant has proven by a preponderance of the evidence that he owed for underpayment(s) related to a miscalculated average weekly wage associated with his second accident (Claim H106715).

GLASS – H005827 & H106715 2 4. The Claimant failed to prove by a preponderance of the evidence that he is entitled to permanent partial disability benefits associated with his low back injuries. 5. The Claimant has failed to prove by preponderance of the evidence that he is entitled to benefits associated with the unauthorized medical treatment he sought through the Pain Treatment Centers of America. 6. The Claimant failed to prove by a preponderance of the evidence that the Respondents controverted the benefits he received in relation to his compensable right hip injuries. 7. The Claimant proved by a preponderance of the evidence that his left hip injury is a compensable consequence of his accepted compensable right hip injuries. 8. The Claimant failed to prove by a preponderance of the evidence that he is permanently and totally disabled; but he proved by a preponderance of the evidence that he is entitled to a wage-loss benefit in the amount of twenty-five percent (25%) over and above his fifteen percent (15%) whole-body impairment rating for his accepted compensable right hip injuries. 9. The Claimant has proven by a preponderance of the evidence that he is entitled to an attorney’s fee on the indemnity benefits awarded in this opinion. We have carefully conducted a de novo review of the entire record herein and it is our opinion that the Administrative Law Judge's May 20, 2025 decision is supported by a preponderance of the credible evidence, correctly applies the law, and should be affirmed. Specifically, we find from a preponderance of the evidence that the findings made by the Administrative Law Judge are correct and they are, therefore, adopted by the Full Commission.

GLASS – H005827 & H106715 3 All accrued benefits shall be paid in a lump sum without discount and with interest thereon at the lawful rate from the date of the Administrative Law Judge's decision in accordance with Ark. Code Ann. § 11-9-809 (Repl. 2012). For prevailing on this appeal before the Full Commission, claimant’s attorney is entitled to fees for legal services in accordance with Ark. Code Ann. § 11-9-715(Repl. 2012). For prevailing on appeal to the Full Commission, 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 opinion. In my de novo review of the record, I find that the claimant’s left hip complaints are not a compensable consequence of his compensable right hip injury. The claimant is not entitled to a twenty-five percent (25%) wage-loss

GLASS – H005827 & H106715 4 disability over and above his fifteen percent (15%) anatomical impairment rating. The respondent was a 66-year-old former mental health counselor for the Arkansas Department of Correction. In the course of his employment, claimant sustained two separate injuries: one to his right hip and low back on August 5, 2020, and one to the right hip, low back, right knee and bilateral shoulders on August 2, 2021. A hearing was held before an administrative law judge (ALJ) on May 20, 2025. The following issues were presented: 1. Whether the average weekly wage was miscalculated for the purpose of benefits associated with the claimant’s second workplace incident and injuries. 2. Whether the claimant is entitled to PPD benefits associated with his accepted compensable low back injuries. 3. Whether the claimant is entitled to additional medical treatment with Pain Treatment Centers of America for his accepted compensable low back, right knee, and bilateral shoulder injuries. 4. Whether the claimant is entitled to a controverted attorney’s fee related to indemnity benefits already provided in relation to his compensable right hip injuries. 5. Whether the claimant’s alleged left hip injury is a compensable consequence of his compensable right hip injuries.

GLASS – H005827 & H106715 5 6. Whether the claimant is entitled to permanent and total disability benefits or, in the alternative, wage-loss benefits associated with his compensable injuries. He claims that this entitlement relates to either or both claims. 7. Whether the claimant is entitled to an attorney’s fee on the additional indemnity benefits being sought. The ALJ opined that the claimant has met his burden of proving that his left hip pain is a compensable consequence of his compensable right hip injury, and the claimant is entitled to a twenty-five percent (25%) wage loss disability over and above his fifteen percent (15%) anatomical impairment rating. The respondents appeal and the claimant cross- appeals. Generally, a specific incident injury is an accidental injury arising out of the course and scope of employment caused by a specific incident identifiable by time and place of an occurrence. Ark. Code Ann. § 11-9- 102(4)(A)(i). This, therefore, requires that a claimant establish by a preponderance of the evidence: (1) an injury arising out of and in the course of employment; (2) that the injury caused internal or external physical harm to the body which required medical services or resulted in disability or death; (3) medical evidence supported by objective findings establishing an injury as defined in Ark. Code Ann. §11-9-102(16) and; (4) that the injury was caused by a specific incident identifiable by time and place of occurrence. Ark. Code Ann. § 11-9-102(4)(A)(i).

GLASS – H005827 & H106715 6 However, a compensable injury may also arise as a compensable, or natural, consequence of a prior specific incident injury. If an injury is compensable, then every natural consequence of that injury is also compensable. Martin Charcoal, Inc. v. Britt, 102 Ark. App. 252, 284 S.W.3d 91 (2008). The basic test is whether there is a causal connection between the two episodes. Walker v. Fresenius Med. Care Holding, Inc., 2014 Ark. App. 322, 436 S.W.3d 164 (2014). On September 18, 2024, the claimant’s case manager, Heather Montgomery, wrote to the claimant’s treating physician, Adam Smith, M.D. In her letter, Ms. Montgomery posed four questions, answered by Dr. Smith: 1. In your opinion, within a reasonable degree of medical certainty, is the need for the proposed IM hip nailing for the non-displaced fracture, greater than 51% related to the work injury of 08/05/20? No 2. Can you state within a reasonable degree of medical certainty; the reported left hip symptoms and pathology are the direct result of the 08/05/20 work injury or to pre-existing conditions? Please provide acute objective findings. No 3. If the need for the proposed left hip surgery is greater than 51% related to the work injury of 08/05/20, please provide details about

GLASS – H005827 & H106715 7 the post recovery process, release to full duty work, and anticipated date of maximum medical improvement. N/A 4. If the 09/17/24 appointment and proposed treatment are unrelated to the work injury of 08/05/20, please state unrelated to the work injury of 08/05/20 and note with your billing department future treatment on the left hip should be filed under Mr. Glass’ private health insurance plan. unrelated Beyond the claimant’s own self-serving testimony that his hip surgery resulted from overuse due to his right hip injury, the claimant introduced no evidence to support that contention, no surgical reports or medical opinions, nor did he depose his treating physician. In fact, the claimant has not provided any medical proof to support his contention that the issues with his left hip were the result of overuse of his right hip. In ruling that the claimant met his burden of proving his left hip surgery was a compensable consequence of his injury, the ALJ opined that he “assign[ed] little evidentiary value” to Dr. Smith’s responses to the September 2024 letter, because he “answered the questions as they were written.” It is within the Commission's province to weigh all the medical evidence, to determine what is most credible, and to determine its medical

GLASS – H005827 & H106715 8 soundness and probative force. Sheridan Sch. Dist. v. Wise, 2021 Ark. App. 459, 637 S.W.3d 280 (2021). In weighing the evidence, the Commission may not arbitrarily disregard medical evidence or the testimony of any witness. Id. However, the Commission has the authority to accept or reject medical opinions. Williams v. Ark. Dept. of Community Corrections, 2016 Ark. App. 427, 502 S.W. 3d 530 (2016). Furthermore, it is the Commission's duty to use its experience and expertise in translating the testimony of medical experts into findings of fact and to draw inferences when testimony is open to more than a single interpretation. Id. Here, the ALJ arbitrarily disregarded the opinion of Dr. Smith in favor of the unsubstantiated and self-serving testimony of the claimant and his wife with no medical proof on which to base his findings. There is nothing in our Rules to suggest that concise answers, in writing, to direct inquiries by a case manager is somehow prohibited or carries less evidentiary weight. In fact, this has become the standard for obtaining simple medical opinions from physicians across a large number of the cases that come before us. Accepting the ALJ’s ruling on this sets an unviable and costly standard that would require respondents to depose every doctor in every case where any medical treatment is controverted. This is unsustainable. Simply, in the matter at hand, the claimant failed to meet his burden of proof. In fact, he took no steps to establish a causal connection through

GLASS – H005827 & H106715 9 any medical exhibits. The ALJ, in searching for a reason to find in favor of the claimant, disregarded the most clear and only medical evidence available and did so without reason, and his findings should be reversed. When a claimant sustains an injury not scheduled in Ark. Code Ann. § 11-9-521, permanent disability benefits are controlled by Ark. Code Ann. § 11-9-522(b)(1), which states: In considering claims for permanent partial disability benefits in excess of the employee's percentage of permanent physical impairment, the Workers' Compensation 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. Therefore, 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 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 (2009). 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

GLASS – H005827 & H106715 10 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 or negative attitude in pursuing employment 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 (2009). Victor Vargas, M.D. released the claimant at MMI with no impairment rating on April 28, 2022. Dr. Smith released the claimant at MMI with a fifteen percent (15%) impairment rating for his right hip injury on March 14, 2023. The claimant has a bachelor’s degree in psychology and a master’s degree in clinical psychology and has worked as a counselor and therapist with children and adults. Despite having numerous other skills including tax preparation, prior teaching experience, director of a charter school, and experience in insurance sales, the claimant reluctantly agreed to participate in vocational rehabilitation after initially refusing. At the time of

GLASS – H005827 & H106715 11 the hearing, he had earned $1500 preparing tax returns and anticipated earning additional income preparing tax returns. Ms. Keondra Hampton and Ms. Cecilia Bruson, identified available jobs in the sedentary classification on the claimant’s behalf, including remote work which offers greater pay than the claimant previously earned. Despite this information, the claimant has not applied for work, looked for work anywhere, or made any effort whatsoever to return to the workforce. In addition, he has not even considered working remotely. Ms. Bruson testified that she found jobs for the claimant as recently as a week prior to the hearing. The claimant is able to travel since his injuries and can drive himself. He is not home bound and has no work restrictions. He is capable of using a computer and smart phone. Simply put, the claimant has no desire to return to work. The claimant has had ample opportunity to work with Ms. Hampton and Ms. Brunson who have identified jobs within his restrictions that pay the same or more than he was earning with the respondent employer. The claimant has no incentive to return to the work force and has failed and refused to even look for a job or return to work. The claimant should not be rewarded with a wage loss award when he has no work restrictions and has made no effort whatsoever to return to the work force. Because the claimant has made no effort and has no

GLASS – H005827 & H106715 12 interest in returning to the workforce, he is not entitled to wage-loss benefits. Accordingly, for the reasons set forth above, I must dissent. _______________________________ MICHAEL R. MAYTON, Commissioner