FROM THE ARKANSAS WORKERS' COMPENSATION COMMISSION [NO.
Keith Wren, for appellant.
Charles H. McLemore Jr., for appellee.
BRANDON J. HARRISON, Judge
Cooper appeals the decision of the Arkansas Workers'
Compensation Commission (the Commission), which found that he
did not prove that he was permanently and totally disabled
but awarded him a 23 percent wage-loss disability. He argues
that the Commission's decision is not supported by
substantial evidence. We affirm.
a surgical technician at UAMS, injured his back while
transferring a patient from the operating table to a
stretcher in May 2011. UAMS accepted the injury as
compensable and paid for medical and indemnity benefits.
Cooper underwent an anterior cervical discectomy and fusions
at C5-6 and C6-7 in August 2012 and was released with an 11
percent impairment rating. UAMS accepted and paid permanent
partial-disability benefits based on the 11 percent
September 2015, an administrative law judge (ALJ) held a
hearing to determine Cooper's entitlement to permanent
total disability or, in the alternative, a wage-loss
disability in excess of 11 percent. At the hearing, Cooper
testified that he had a bachelor's degree in pre-med
zoology, an associate's degree in surgical technology,
and had attended one year of medical school. He testified
that since his surgery, he still has pain and blood pressure
issues. He said that on an ordinary day his pain level is a
nine on a scale from one to ten. He explained that he is on a
number of medications that make him drowsy, affect his memory
and his ability to concentrate, and render him unable to
drive. He testified that he did nothing most days except
watch television. He did admit, however, that he had been
able to take a seven-hour round trip to Mississippi and had
traveled to Louisiana and played slot machines for about an
said that he would prefer to be working but that he cannot
work for more than an hour at a time. He agreed that he could
perform a job where all he had to do was sit and answer the
phone but then said he could not hold conversations with
people because of his medications. He said that he underwent
a functional capacity evaluation (FCE) in July 2015 after
having to cancel two previous FCEs due to his high blood
pressure. He stated that he was "educated to do a lot of
jobs" and insisted that he would "love" to go
back to work.
wife, Narvelia, testified that Cooper had been energetic and
active before his injury but is completely inactive now. She
testified that if he could work, he would, and that he had
expressed a desire to go back to work. She also said that he
has ongoing problems with pain and that his medication
affected his ability to communicate and stay awake.
Taylor, an educational rehabilitation counselor, testified
that she met with Cooper in June 2015; however, she did not
conduct any job search for him at that time because "he
had resigned himself to not going back to work in the future
and didn't have any plans to look for a job in the
future." She completed a vocational-rehabilitation
evaluation report based on Cooper's educational and
work-history background but did not have an FCE to assist
spoke to Cooper again in August 2015 on the telephone and
attempted to set up a meeting with him, but Cooper placed her
on hold and never came back to the phone. According to
Taylor, she called back a couple of times and never got an
answer; she also sent a follow-up letter but never received a
response. Taylor prepared another report on August 26 and
noted his failure to communicate with her. She also noted
that his FCE indicated that he can perform sedentary work but
cannot work an eight-hour shift. She concluded that Cooper
had an excellent work history and educational background and
had acquired a strong skill set but that "there may be
an issue with his medications possibly causing him to be not
fully coherent." Taylor testified that she had not
performed any labor-market research taking into account the
limitations revealed by the FCE but opined that "his
options will be extremely limited."
addition to reviewing the above testimony in his written
order, the ALJ also reviewed the medical evidence presented
at the hearing. Dr. Zachary Mason, who performed Cooper's
surgery, opined in October 2012 that Cooper could return to
work and assessed his impairment rating at 11 percent to the
body as a whole. A 2013 neurology report signed by Dr.
Bradley Boop noted that "nerve conduction studies and
EMG recordings in the right upper extremity are unremarkable.
There is no evidence of an underlying radiculopathy and there
are no myopathic changes."
January 2014, Dr. Jay Holland, Cooper's general
physician, opined that Cooper had been "rendered
disabled due to cervical disc diseases, cervical nerve pain
post injury and right arm hemiplegia." He also stated
that any belief that Cooper would rather bankrupt his family
than work is "completely wrong." Also in January
2014, Dr. Carl Covey, a pain-management physician, stated
that Cooper's "pain level is sufficient enough that
it is my recommendation that he does not work at this
time." In December 2014, Covey opined that Cooper
"could foreseeably attempt to return to some sort of
employment but his prospects are dim as he continues to
complain of significant pain and requires medication for the
pain that could certainly ...