Afrim Rushani vs. Nbmc, Inc

NOT DESIGNATED FOR PUBLICATION BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H303639 AFRIM RUSHANI, EMPLOYEE CLAIMANT NBMC, INC., EMPLOYER RESPONDENT TRAVELERS INDEMNITY CO. OF CT, CARRIER THE TRAVELERS INDEMNITY CO., TPA RESPONDENT OPINION FILED SEPTEMBER 29, 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 MICHAEL E. RYBURN, Attorney at Law, Little Rok, Arkansas. Decision of Administrative Law Judge: Affirmed and Adopted. OPINION AND ORDER Claimant appeals an opinion and order of the Administrative Law Judge filed June 26, 2025. In said order, the Administrative Law Judge made the following findings of fact and conclusions of law: 1. The Commission has jurisdiction over this claim. 2. The stipulations as set forth above are accepted. 3. The claimant has proven by a preponderance of the evidence that he is entitled to a wage-loss benefit of ten percent (10%) over and above his eight percent (8%) whole-body impairment rating for his stipulated compensable back injury.

RUSHANI - H303639 2 4. 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 June 26, 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 of fact made by the Administrative Law Judge are correct and they are, therefore, adopted by the Full Commission. Therefore we affirm and adopt the decision of the Administrative Law Judge, including all findings and conclusions therein, as the decision of the Full Commission on appeal. IT IS SO ORDERED. ___________________________________ SCOTTY DALE DOUTHIT, Chairman ___________________________________ MICHAEL R. MAYTON, Commissioner Commissioner Willhite dissents.

RUSHANI - H303639 3 DISSENTING OPINION The Claimant appeals an Administrative Law Judge (hereinafter referred to as “ALJ”) Opinion which stated that Claimant has proven by a preponderance of the evidence that he is entitled to a wage-loss benefit of ten percent (10%) over and above his eight percent (8%) whole-body impairment rating for his stipulated compensable back injury. After conducting a thorough review of the record, I would find that the Claimant is entitled to a thirty-five percent (35%) wage-loss benefit over and above his eight percent (8%) whole-body impairment rating for his stipulated compensable back injury. Wage-loss factor is the extent to which a compensable injury has affected the Claimant’s ability to earn a livelihood. Whitlatch v. Southland Land & Dev., 84 Ark. App. 399, 141 S.W. 3d 916 (2004). The Commission is charged with the duty of determining disability. Cross v. Crawford County Memorial Hosp., 54 Ark. App. 130, 923 S.W.2d 886 (1996). 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,

RUSHANI - H303639 4 education, work experience, and other matters reasonably expected to affect his or her future earning capacity. Ark. Code Ann. § 11-9-522(b)(1). 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. Claimant is 36 years old. Claimant did not graduate high school and has an education up to sophomore year in high school. Claimant began working manual labor jobs since leaving high school and has no higher education or certifications. Claimant’s work-history is only in manual labor. In the ALJ’s Opinion, it is noted that the Claimant has few skills that would translate outside of physical labor. Claimant underwent a functional capacity evaluation (or “FCE”) on April 29, 2024, where he was given a light classification with reliable results

RUSHANI - H303639 5 based on an 8-hour workday. Of note, the Claimant put forth 49 out of 49 consistency measures within expected limits. Ultimately, the Respondents did not return the Claimant to any position within their company that fit within the Claimant’s light classification. Claimant’s compensable injuries have affected his ability to earn a livelihood. Claimant has limited education. Claimant is unable to perform labor intensive work as he has in the past. Pursuant to the stipulations by the parties at the hearing, the Claimant’s average weekly wages were approximately $1,159.89. The credible evidence in the record supports a finding that the Claimant will be unable to earn wages in that range given his limited training and work restrictions. This Commission has ruled that significant wage-loss benefits are appropriate for fact patterns such as the case at hand. See Ark. Dot v. Abercrombie, 2019 Ark. App. 372, 584 S.W.3d 701 (2019); Ark. Highway & Transp. Dep’t v. Wiggins, 2016 Ark. App. 364, 499 S.W.3d 229. Therefore, I would rule that the Claimant is entitled to 35% wage-loss disability over and above his permanent impairment rating. ___________________________________ M. SCOTT WILLHITE, Commissioner