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Bowmaster v. City of Jacksonville

Court of Appeals of Arkansas, Division I

November 30, 2016

JASON BOWMASTER, APPELLANT
v.
CITY OF JACKSONVILLE, ARKANSAS, ARKANSAS MUNICIPAL LEAGUE, and DEATH & PERMANENT TOTAL DISABILITY TRUST FUND, APPELLEES

         APPEAL FROM THE ARKANSAS WORKERS' COMPENSATION COMMISSION [NO. G202759]

         AFFIRMED IN PART; REVERSED AND REMANDED IN PART

          Martin Law Firm, by: Aaron L. Martin, for appellant.

          Katie Bodenhamer, for appellees.

          PHILLIP T. WHITEAKER, JUDGE

         Appellant Jason Bowmaster appeals a decision of the Arkansas Workers' Compensation Commission ("Commission"), which concluded that he was not entitled to a permanent impairment rating for dysphasia or for an alleged traumatic-brain or closed-head injury; that he was entitled to a wage-loss disability rating of only 50 percent; and that the appellees (collectively referred to as "the City") were entitled to an offset for disability-retirement benefits paid to him by the Arkansas Local Police and Fire Retirement System ("LOPFI benefits"). After considering the record before us, we reverse and remand as to the Commission's determination of Bowmaster's impairment and wage-loss ratings and affirm as to the offset of LOPFI benefits.

         I. Impairment and Wage-Loss Ratings

         The Commission, in its de novo review, reversed the decision of the Administrative Law Judge (ALJ) and found that Bowmaster had failed to prove a brain injury or dysphasia and set his impairment rating at 22 percent (2 percent for right femur, 3 percent for right knee, 8 percent for left knee, 6 percent for left shoulder, and 3 percent for pelvis). The Commission further found that Bowmaster was entitled to a wage-loss benefit of 50 percent. Bowmaster filed a timely notice of appeal from the Commission's opinion, which is now before this court. Bowmaster contends that the Commission exceeded its authority when it found that he had not sustained a brain injury or dysphasia. He argues that only the degree of impairment, not the existence of an injury, was in dispute. We agree. A review of the facts and the procedural history is important to an understanding of our conclusion.

         On March 19, 2012, Bowmaster suffered multiple compensable injuries when he was intentionally run over by a van while working as a firefighter for the City of Jacksonville. The City initially accepted compensability and paid medical and temporary total-disability benefits[1] to Bowmaster. Bowmaster and the City were not able to reach an agreement on the issues of permanent partial disability, permanent and total disability or wage loss, attorney's fees, and offset of benefits. These issues proceeded to a hearing before the ALJ.

         The ALJ issued two prehearing orders relating to the issues to be litigated between Bowmaster and the City. In the first order, the ALJ listed the following stipulations of the parties:

The parties stipulated to an employee-employer-carrier relationship on March 19, 2012, at which time the claimant sustained multiple compensable injuries at a compensable rate of $546.00/$410.00. Medical expenses, total temporary disability benefits until the end of the healing period. (September 25, 2013) and anatomical impairment totaling 22% (14% brain, 7% knee, 2% shoulder) have been accepted.

         The order listed the issues to be litigated as "additional anatomical impairment (for the hip and brain); permanent total disability or wage loss; attorney's fees; offset of benefits, Ark. Code Ann. § 11-9-411, and contempt." In the second order, the ALJ once again designated the issues to be litigated as "anatomical impairment (hip and brain); wage loss, controversions; attorney's fees; fund liability; and contempt; offset of LOPFI benefits." The order directed the parties to advise the Commission, in writing, of any corrections or additions within ten days. Neither party did so.

         Bowmaster and the City proceeded to a hearing on the issues set forth in the two prehearing orders. At the beginning of the hearing, the ALJ noted that the issues to be resolved at the hearing were "anatomical impairment of the hip and brain, wage loss, attorney's fees, Fund liability, contempt and an offset of benefits." Counsel for the City agreed with the ALJ's assessment. Concerning the anatomical impairment ratings, counsel for Bowmaster, however, asked for some clarification of the issues, and the following colloquy occurred:

Counsel for Bowmaster: No, Your Honor, I just wanted to make sure that we were clear on what ratings we are ...

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