Kevin Briggs vs. Utc Railcar Repair Services, LLC

NOT DESIGNATED FOR PUBLICATION BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H302750 KEVIN BRIGGS, EMPLOYEE CLAIMANT UTC RAILCAR REPAIR SERVICES, LLC, EMPLOYER RESPONDENT OLD REPUBLIC INSURANCE COMPANY/ CONSTITUTION STATE SERVICES, LLC, INSURANCE CARRIER/TPA RESPONDENT OPINION FILED FEBRUARY 6, 2026 Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas. Claimant represented by the HONORABLE GREGORY R. GILES, Attorney at Law, Texarkana, Arkansas. Respondents represented by the HONORABLE R. SCOTT ZUERKER, Attorney at Law, Fort Smith, Arkansas. Decision of Administrative Law Judge: Affirmed and Adopted. OPINION AND ORDER Respondents appeal an opinion and order of the Administrative Law Judge filed August 5, 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. I hereby accept the above-mentioned proposed stipulations as fact. 3. The Claimant proved by a preponderance of the credible evidence that he sustained a compensable injury to his left shoulder on

BRIGGS - H302750 2 March 16, 2023, during and in the course and scope of his employment with UTC. 4. The Claimant proved by a preponderance of the credible evidence that all the medical treatment of record was reasonably necessary in connection with the left shoulder injury received by him. No further medical treatment has been recommended for the Claimant’s left shoulder injury. 5. The Claimant proved his entitled to temporary total disability compensation from April 28, 2023, through and until September 23, 2024. 6. The Claimant proved by a preponderance of the evidence that he sustained a 5% whole person permanent impairment for his left shoulder injury. 7. The Claimant proved by a preponderance of the credible evidence that he sustained wage loss disability in the amount of 22%. 8. The parties stipulated that the Respondents have controverted this claim in its entirety. Therefore, the Claimant’s attorney is entitled to a controverted attorney’s fee on the indemnity benefits awarded to the Claimant herein. We have carefully conducted a de novo review of the entire record herein and it is our opinion that the Administrative Law Judge's 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.

BRIGGS - H302750 3 We therefore affirm the decision of the Administrative Law Judge, including all findings of fact and conclusions of law therein, and adopt the opinion as the decision of the Full Commission on appeal. 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(a)(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

BRIGGS - H302750 4 I must respectfully dissent from the majority’s finding that the claimant is entitled to a five percent (5%) permanent impairment rating and wage-loss disability of twenty-two percent (22%). I. The claimant should be limited to the two percent (2%) whole person impairment rating assigned by Dr. Sharp. "Permanent impairment" has been defined as "any permanent functional or anatomical loss remaining after the healing period has ended." Carrick v. Baptist Health, 2022 Ark. App. 134, 643 S.W.3d 466 (2022). Any determination of the existence or extent of physical impairment must be supported by objective and measurable physical or mental findings. Ark. Code Ann. § 11-9-704(c)(1)(B). "Objective findings" are those findings which cannot come under the voluntary control of the patient. Ark Code Ann. § 11-9-102(16)(A)(ii)(a). Complaints of pain are not to be considered objective medical findings. Ark. Code Ann. § 11-9- 102(16)(A)(ii)(a); Reed v. First Step, Inc., 2019 Ark. App. 289, 577 S.W.3d 424 (2019). The Commission is authorized to decide which portions of the medical evidence to credit and to translate this evidence into a finding of permanent impairment using the AMA Guides. Thus, the Commission may assess its own impairment rating rather than rely solely on its determination of the validity of ratings assigned by physicians. Carrick, 2022 Ark. App. 134, 643 S.W.3d 466

BRIGGS - H302750 5 (2022). In weighing the evidence, the Commission may not arbitrarily disregard medical evidence or the testimony of any witness. Sheridan Sch. Dist. v. Wise, 2021 Ark. App. 459,637 S.W.3d 280 (2021). 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. In the present matter, the claimant received two whole person impairment ratings. The first was provided by Dr. Richard Sharp on September 25, 2024, and the second was provided by Dr. Joe Huggins on April 8, 2025. In her opinion, the ALJ disregards Dr. Sharp’s evaluation, because it “does not take into account all of the Claimant’s resulting deficits from his compensable left shoulder injury.” However, none of the deficits noted in Dr. Huggins’s evaluation are anatomical in nature but rather are non-compensable subjective complaints. In his evaluation, Dr. Huggins notes: He rated his left shoulder pain as 3/10, and states that it varies from 3/10 two (sic) 8/10. He states that lifting causes increased pain. He estimates that his left upper extremity strength is approximately 55-60% of his preinjury strength. He

BRIGGS - H302750 6 states that he has tingling in his thumb, middle finger, and ring finger of his left hand. He states that he did not have this symptom prior to his injury, so he thinks it is related to the shoulder injury. He feels that he has plateaued in his recovery. With regard to activities of daily living Mr. Briggs indicates that he has difficulty putting on and taking off pullover shirts and coats. He states that he has difficulty drying his back with a towel. He states that he drives with his right hand only on the wheel. He states that he can mow his lawn on the riding mower, but cannot we eat (sic) or use lawn tools such as a chain saw. He states that he cannot lay on his left side. He states that lifting any weights, including groceries, causes increased discomfort and swelling in his left shoulder. He states that he cannot hold his dog on a leash with his left hand. Each of these complaints by the claimant is subjective and there are no objective findings in the record to support their inclusion in Dr. Huggins’s report. In fact, Dr. Huggins’s evaluation notes that the claimant’s ongoing complaints are “mild to moderate left shoulder pain and weakness.” These subjective complaints are an insufficient basis upon which to grant Dr. Huggins’s evaluation greater weight. On the other hand, Dr. Sharp conducted a detailed physical examination, finding: The claimant moves on off and on (sic) the exam table with ease. No left upper extremity spasm or atrophy noted. Deep

BRIGGS - H302750 7 tendon reflexes are 1+ at biceps, triceps, and brachioradialis. Sensation to pinprick is intact throughout the upper extremities. Motor strength is 5/5 at right shoulder, elbow, and grip. Motor strength is 5/5 at left elbow flexion and extension, left grip, shoulder internal rotation, adduction, forward flexion and 4/5 left external rotation and abduction. No ataxia noted in the upper extremities. Fine motor coordination is normal at both hands. Fully closes bilateral fists. Right elbow range of motion is 140 degrees flexion and 0 degrees extension. Right pronation 80 degrees and 80 degrees supination. Left elbow is 140 degrees flexion and 0 degrees extension. Left pronation is 80 degrees and 80 degrees supination. Right Shoulder range of motion is 180 degrees forward flexion and 50 degrees extension. Right abduction is 180 degrees and 50 degrees adduction. Right internal rotation is 90 degrees and 90 degrees external rotation. Left shoulder is 180 degrees forward flexion and 50 degrees extension. Left abduction is 90 degrees and 50 degrees adduction. Left internal rotation is 90 degrees and 90 degrees external rotation. Mild tenderness noted at the left subacromial area and biceps proximally. No warmth, crepitus, redness or effusion noted. Left empty can sign mildly positive. Left Neer’s test negative. Hawkin’s Test negative. Left Speeds test slightly positive. Yergason’s test slightly positive. Externally rotated and supinated arm against resistance positive. Tenderness ad bicipital groove. Cross body adduction test negative. Apprehension test negative. No crepitus left shoulder. Well healed left shoulder

BRIGGS - H302750 8 scars. In contrast, Dr. Huggins’s report does not contain the extensive detailed revealed in Dr. Sharp’s evaluation. For these reasons, it is clear that the Commission should grant greater weight to Dr. Sharp’s clear, detailed, and objective findings on the claimant’s permanent impairment. Dr. Huggins is limited by his focus on the claimant’s subjective complaints, and his opinion therefore should be afforded less weight. Because Dr. Sharp’s findings are clearly more accurate, the claimant should be limited to a two percent (2%) whole body permanent impairment rating. II. The claimant is not entitled to wage loss benefits. 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

BRIGGS - H302750 9 reasonably expected to affect his or her future earning capacity. 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). Therefore, when a claimant has been assigned an anatomical impairment rating to the body as a whole, the Commission may 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). 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).

BRIGGS - H302750 10 Here, the claimant is fifty-three years old with a high school education. After graduating from high school in 1992, the claimant served as a volunteer firefighter for approximately eighteen years, and obtained certifications and training related to that field during that time. The claimant testified that he has approximately eighteen to twenty years of experience in welding and maintenance work. Presently, the claimant acknowledges that he can lift, carry, and manage fifteen pounds. While he does not subjectively believe that he can return to work as a welder, the claimant testified that he believes he could manage driving a forklift or office type work and has submitted around seventeen job applications for these kinds of positions. He continues to look for work. In her opinion, the ALJ relies on the fact that the claimant has not received any responses to his ongoing applications as the basis for granting him twenty-two percent (22%) wage loss. This is premature. The claimant has a clear desire to return to work and is qualified for a variety of roles. There is no indication that the claimant will be unable to return to the work force at any point. There is simply no basis on which to grant the claimant wage loss when he is ready, willing, and able to return to work. Accordingly, for the reasons set forth above, I respectfully dissent.

BRIGGS - H302750 11 _____________________ MICHAEL R. MAYTON, Commissioner