Joseph Taylor vs. Dolgencorp., LLC

BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H208333 JOSEPH TAYLOR, EMPLOYEE CLAIMANT DOLGENCORP., LLC d/b/a DOLLAR GENERAL STORE, EMPLOYER RESPONDENT DOLGENCORP., LLC/ SEDGWICK CLAIMS MG’T SERVICES, INC., INSURANCE CARRIER/TPA RESPONDENT OPINION FILED DECEMBER 3, 2025 Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas. Claimant represented by the HONORABLE LAURA BETH YORK, Attorney at Law, Little Rock, Arkansas. Respondents represented by the HONORABLE DAVID C. JONES, Attorney at Law, Little Rock, Arkansas. Decision of the Administrative Law Judge: Affirmed in part, reversed in part. OPINION AND ORDER The Claimant appeals an administrative law judge’s opinion filed May 22, 2025. The administrative law judge found that the Claimant failed to meet his burden of proof in demonstrating that he is permanently and totally disabled as a result of his November 15, 2022, compensable injury(ies), that the Claimant failed to meet his burden of proof in demonstrating he is

TAYLOR – H208333 2 entitled to any percentage of wage-loss disability in excess of his 19% body as a whole permanent anatomical rating as a result of his subject November 15, 2022, compensable injury(ies), and that the Claimant’s attorney is not entitled to an attorney’s fee based on these facts. After reviewing the entire record de novo, the Full Commission finds that Claimant is entitled to an additional 10% wage-loss disability benefit as a result of his November 15, 2022, compensable injuries. I. HISTORY Joseph Taylor, now age 55, testified that he was a high school graduate. Mr. Taylor testified that his primary fields of employment were working as a cook in various establishments, a night stocker, and a warehouse forklift operator. The Claimant testified that he had obtained a certification as a forklift operator, but that certification has since lapsed. Claimant’s last job before working for the Respondent was with the City of Little Rock as a waste management sanitation operator. In 2013, while working for the City of Little Rock as a waste management sanitation operator, Claimant injured his shoulders, wrist and head. Claimant testified: A: I was workin’ for the City of Little Rock. (sic.) [I]t was a day just like yesterday. (sic.) I was workin’ waste management, and it was snowin’ outside. And it’s like, you know, you fall off trucks, you slip and fall in the rain and stuff like that, and like, when I fell off the truck, I as layin’ flat on my back. I couldn’t move, I couldn’t talk, I couldn't do anything. So it’s like I was just layin’ there and the rain was just fallin’ down on me. I

TAYLOR – H208333 3 couldn’t’ even close my eyes, so it’s just like I was there for, like, 20 minutes. And then I was able to get up and I went home. I didn’t think (sic.) anything of it ‘cause I played sports all my life, so, you know, I was – I just thought it was just a little injury and I get over it, go home, rest up and be fine. So the next day when I woke up, I couldn’t move at all. I couldn’t’ move, I couldn’t talk, so for three days I was stuck in my bed, non-verbal, non-communicative, none of that. So for three days my grandmother set and prayed on me for three days, and I finally came around and she said, “Go to the doctor.” And when I went to the doctor, you know how the doctor give you that look? So once he gave me that look and I seen the look that he had given to my grandmother and my great-grandmother, that look of ‘Okay’. And when he gave me that look it was like my life hasn’t been the same since. *** Q: Okay. So you’ve had multiple body parts injured in that accident at work; is that correct? A: Correct *** Q: Okay. Do you recall specifically what body parts were injured in that fall? A: My shoulders, wrist, head, pretty much everything. As a result of this work accident, Claimant began drawing social security disability benefits. On December 27, 2021, Claimant was hired by Respondent as a cashier. The Claimant testified that he disclosed his pre-existing physical limitations and restrictions to the Respondent prior to being hired: Q: Now when you applied to work at Dollar General, did you tell them about all of these injuries that you’d – A: They knew my whole medical history. They knew everything. That’s why, when they hired me, they didn’t hire me as a stocker ‘cause they know I couldn’t’ do no liftin’. That’s why they put me as a cashier.

TAYLOR – H208333 4 On November 15, 2022, Claimant was working for the Respondent. Claimant testified that on that date, the following occurred: Q: Okay. Tell us what happened to you on November 15 th , 2022. A: Okay. On that time, the cash register was down so we wasn’t only takin – what was it? We wasn’t takin’ cash – we wasn’t takin’ cash, we was takin’ cards only, and that Dollar General had been – we had been goin’ through that back and forth, like it’d be sometimes we take cards, sometimes we take cash. But we had a note on the door that said card only, so when the guy walked in I’m like “Hey, guy, you know, how you doin’? You know, card only.” I’m like “Card only. The door says card only, card only.” So he put the money down and I said “Card only. Card only.” And then I gave him his money back. So he commenced to start cussin’, “I’m gonna take this.” I said, “Well, you can – you can take it but you gotta take it up with Dollar General, but if you take it, don’t come back. I’m not fixin’ to fight with you, I’m not fixin’ to argue with you about this. It’s not mine, it’s Dollar General’s but if you take it, don’t come back, ‘cause there’s a camera right there lookin’ at your spot.” So then he caught an attitude and I said, “Well, can I have that back since you payin’ – wanna pay with cash?” I said, “Can we put this back?” So he got mad, and you know like when you – you get in – get aggressive with somebody you know how you get in your stance ‘cause you feel like somebody’s fixin’ to try somethin’ to ya? So I got in that stance ‘cause I felt like he was fixin’ to do somethin’ to me, but when I took the stance, my hip popped, so therefore I lost my balance and he picked me up and slammed me on the ground. The parties stipulated that the Claimant sustained admittedly compensable injuries to his face and upper back/thoracic spine. The Claimant testified that he had not worked for any employer since the date of his compensable injury. Claimant also testified that his position was terminated with the Respondent subsequent to the compensable injury.

TAYLOR – H208333 5 According to the record, the Claimant initially treated with Dr. Michael Delcastillo-Hegyi on November 17, 2022, who diagnosed Claimant with a lumbar transverse process fracture and a closed head injury. Dr. Delcastillo- Hegyi then referred Claimant to Dr. Wayne Bruffett. Claimant began treatment with Dr. Bruffett on December 12, 2022: Joseph Taylor is a 52 year old male who presents to discuss concerns about their Low Back Pain, Mid Back Pain, that began on 11/15/2022. *** X-rays reveal transverse process fractures on the left side in the lumbar spine. His CT is reviewed he does have fractures L2 L3-L4-L5 on the left the L5 fracture is pretty subtle the other ones are more notable on the axial images An MRI of the Claimant’s lumbar spine was taken on January 13, 2023, with the following impression: Mild neural foraminal stenosis on the right at L3-4. The Claimant followed up with Dr. Bruffett on January 23, 2023: Mr. Taylor has transverse process fractures on the left L2-L3- L4 and L5. I recommended an MRI scan. This study does not show any disc herniation or burst fracture. These are isolated transverse process fractures. I think he can be released to some light sedentary office work although he says he was fired from his job unfortunately. I will see him back in 6 weeks and he will be at maximal medical improvement and I will calculate his impairment rating. He has subjective complaints of a vibratory sensation and such. He also has a history of fibromyalgia. On February 22, 2023, Claimant followed up with Dr. Bruffett:

TAYLOR – H208333 6 Mr. Taylor returns a little over 3 months status post work- related injury in which [he] sustained transverse process fractures L2-L3-L4 and L5. There is no change in his examination today. I would say he is now at a point of maximum medical improvement. Based on the American Medical Association guides to the evaluation of permanent impairment fourth edition I would assign him an impairment rating of 19% of the whole person. This is based on 5% transverse process fractures x4 using the combined values chart. He is released without restrictions. I will see him back as needed. A pre-hearing order was filed on October 22, 2024. The Claimant contended: The Claimant contends that on or about November 15, 2022, he sustained admittedly compensable injuries to his face and upper back/thoracic spine as a result of a work-related assault. On February 22, 2022, Dr. Wayne Bruffett ultimately released the Claimant with a 19% to the body-as-a-whole (BAW) permanent anatomical impairment rating, which the Respondents have accepted and paid. The Claimant contends he is PTD as a result of his admittedly compensable work-related injuries or, alternatively, he is entitled to substantial wage loss disability as a result of his compensable injuries. He further contends his attorney is entitled to the maximum statutory attorney’s fee. [...] The Respondents contended: The Respondents contend they have accepted the Claimant’s face and upper back/thoracic spine injury as compensable and have paid all appropriate benefits to date, including but not limited to Dr. Bruffett’s 19% BAW impairment rating. The Respondents contend the Claimant is not PTD, nor is he entitled to any wage loss disability related to his compensable injuries. The Respondents contend that any wage loss disability the Claimant may have sustained is not the “major cause” of his overall disability, which the Respondents contend is the result of preexisting conditions. The Respondents further contend the Claimant has applied for and currently is receiving Social Security Disability (SSD) benefits and, therefore, pursuant to Ark. Code Ann. Section 11-9-411 (Lexis Replacement 2024) they are entitled to a dollar-for-

TAYLOR – H208333 7 dollar credit/offset in the amount of any and all group health, and/or disability benefits, as well as any and all unemployment benefits paid to or on the Claimant’s behalf. [...] The parties agreed to litigate the following issues: 1. Whether the Claimant is permanently and totally disabled (PTD) and, if not, the extent of the Claimant’s wage loss disability, if any. 2. Whether and to what extent, if any, the Claimant’s attorney is entitled to a controverted fee on these facts. An administrative law judge filed an opinion on May 22, 2025. The administrative law judge found that the Claimant failed to prove that he is permanently and totally disabled, or that he was entitled to any percentage of wage loss disability in excess of his permanent anatomical impairment rating. The Claimant appeals to the Full Commission. II. ADJUDICATION The wage-loss factor is the extent to which a compensable injury has affected the Claimant’s ability to earn a livelihood. Grimes v. North Am. Foundry, 316 Ark. 295, 872 S.W.2d 59 (Ark. 1994). Arkansas Code Annotated § 11-9-522(b)(Repl. 2012) provides, in pertinent part: (1) 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.

TAYLOR – H208333 8 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. 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. An administrative law judge found in the present matter, “4. The Claimant has failed to meet his burden of proof in demonstrating he is entitled to any percentage of wage loss disability in excess of his 19% BAW permanent anatomical impairment rating as a result of his subject November 15, 2022, compensable injury(ies). The Full Commission does not affirm this finding. Claimant is a 55-year-old high school graduate. Claimant testified that he worked as a cook in various fast-food establishments, a night stocker, and a warehouse forklift operator. Claimant has obtained a certification as a forklift operator, but that certification has since lapsed. Claimant testified that the job he had prior to working for Respondents was

TAYLOR – H208333 9 with the City of Little Rock as a waste management sanitation operator approximately 13-14 years ago. The parties stipulated that the Claimant was employed with the Respondents on November 15, 2022. The parties stipulated that the Claimant sustained compensable injuries on November 15, 2022. The record shows that the Claimant injured his face and back after an assault. The Claimant has not returned to work for any employer since the stipulated November 15, 2022, compensable injuries. The Claimant treated conservatively with Dr. Wayne Bruffett beginning on December 12, 2022. Dr. Bruffett released the Claimant to full duty without restrictions on February 22, 2023. On that same date, Dr. Bruffett placed Claimant at maximum medical improvement with a permanent anatomical impairment rating of 19% to the whole person but continued to prescribe multiple medications for pain for Claimant’s admittedly compensable back injuries. The Claimant’s position with the Respondents was terminated after November 15, 2022. According to the record, Respondents have not provided any vocational assistance to the Claimant. There is nothing in the record that shows the Claimant is not interested in returning to appropriate gainful employment as required in City of Fayetteville v. Guess, supra. However, the evidence demonstrates that, as a result of the November 15, 2022, compensable injuries, the Claimant is physically unable to return to

TAYLOR – H208333 10 his former position as a cashier employee for the Respondents. In considering the Claimant’s relatively young age of 55, his high school education, the Claimant’s work history, and the 19% whole-body impairment rating, the Full Commission finds that the Claimant proved he sustained wage-loss disability in the amount of 10% above his impairment rating of 19%. After reviewing the entire record de novo, the Full Commission finds that the Claimant proved he sustained wage-loss disability in the amount of 10%. The Claimant proved that the November 15, 2022, compensable injury was the major cause of his 19% anatomical impairment and 10% wage-loss disability in accordance with Arkansas Code Annotated § 11-9- 102(F)(ii)(a)(Repl. 2012). The Claimant’s attorney is entitled to fees for legal services in accordance with Arkansas Code Annotated § 11-9-715(a)(Repl. 2012). For prevailing in part on appeal, the Claimant’s attorney is entitled to an additional fee of five hundred dollars ($500), pursuant to Arkansas Code Annotated § 11-9-715(b)(Repl. 2012). IT IS SO ORDERED. _______________________________ SCOTTY DALE DOUTHIT, Chairman _______________________________ M. SCOTT WILLHITE, Commissioner

TAYLOR – H208333 11 Commissioner Mayton dissents. DISSENTING OPINION I must respectfully dissent from the majority’s finding that the claimant is entitled to wage-loss disability of ten percent (10%) in addition to his nineteen percent (19%) permanent impairment rating. 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

TAYLOR – H208333 12 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 (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 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). Our courts also consider the claimant’s motivation to return to work since lack of interest 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).

TAYLOR – H208333 13 On November 15, 2022, the claimant suffered an admittedly compensable injury to his lumbar spine in a work-related assault. Before going to work for the respondent employer, the claimant had not worked in 13 years. The claimant has an extensive history of physical disabilities and injuries to his back, which led to a period of unemployment between 2013 or 2014 and 2021, and he received social security benefits for “[p]robably like 13 years” prior to beginning work for the respondent employer in 2021. The claimant suffers from a litany of mental and physical conditions, testifying that he has sought disability for every part of his body and had undergone nineteen surgeries prior to his employment with the respondent. After his injury, the claimant was initially treated at the CHI St. Vincent emergency room and was discharged the same day. He later came under the care of orthopedic surgeon, Wayne Bruffett, M.D. In January 2023, Dr. Bruffett opined that the claimant could return to light, sedentary work; however, by that point the claimant had been terminated due to a “fight situation” at work.” After conservative treatment, Dr. Bruffett released the claimant at maximum medical improvement (MMI) on February 23, 2023, with a nineteen percent (19%) permanent impairment rating. In the claimant’s return to work note, Dr. Bruffett released the claimant with no restrictions related to his compensable injury. While the claimant testified that he is in a great deal of pain, the record reflects that Dr. Bruffett was aware of those complaints before he released him to return to work with no

TAYLOR – H208333 14 restrictions. Further, the claimant has not sought any additional medical treatment since he was released at MMI. The claimant is a 55-year-old man with a high school education and extensive experience working as a cook, a warehouse associate, a construction worker, a forklift operator, and a caregiver. Since the time of his injury, the claimant has taken no steps to return to work. At the hearing, the claimant testified that he loved his job with the respondent and would have continued working for them had he not been terminated and testified at his deposition that he is able to work. The only evidence indicating that the claimant is currently unable to find work is his own self-serving testimony. The claimant’s treating physician, Wayne Bruffett, M.D. released the claimant with no restrictions from his compensable injury and there is no medical evidence to rebut Dr. Bruffett’s findings. The credible evidence overwhelmingly supports that the claimant’s purported inability to find suitable employment, if any, arises from his significant pre-existing conditions and a clear desire to remain out of the work force given his ongoing refusal to seek meaningful employment. Accordingly, for the reasons set forth above, I respectfully dissent. ___________________________________ MICHAEL R. MAYTON, Commissioner

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