FROM THE ARKANSAS WORKERS' COMPENSATION COMMISSION [NO.
IN PART; REVERSED AND REMANDED IN PART
Law Firm, by: Aaron L. Martin, for appellant.
Bodenhamer, for appellees.
PHILLIP T. WHITEAKER, JUDGE
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.
Impairment and Wage-Loss Ratings
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.
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 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.
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.
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.
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 ...