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Arkansas Highway and Transportation Department v. Work

Court of Appeals of Arkansas, Division I

December 5, 2018

ARKANSAS HIGHWAY AND TRANSPORTATION DEPARTMENT AND ARKANSAS INSURANCE DEPARTMENT, PUBLIC EMPLOYEE CLAIMS DIVISION APPELLANTS
v.
JOSEPH WORK APPELLEE

          APPEAL FROM THE ARKANSAS WORKERS' COMPENSATION COMMISSION [NOS. G007596, G306766, G407852, G602717]

          Charles H. McLemore Jr., for appellants.

          Walker, Shock & Harp, PLLC, by: Eddie H. Walker, Jr., for appellee.

          WAYMOND M. BROWN, JUDGE

         The Arkansas Highway and Transportation Department (AHTD) and Arkansas Insurance Department, Public Employee Claims Division, appellants, appeal from an order of the Arkansas Workers' Compensation Commission (Commission) finding that appellee was entitled to a 30 percent (30%) anatomical impairment rating to the body as a whole as well as a 65 percent (65%) wage-loss award. Appellants contend that the evidence is insufficient to support the Commission's award. We find no error and affirm.

         Appellee worked for appellant AHTD for nearly eleven years driving a dump truck or low boy. During that time, appellee suffered four separate compensable injuries: August 2010, injury to lumbar spine; August 2013, injury to lumbar spine; June 2014, injury to lumbar spine; February 2016, injury to lumbar spine and cervical spine.

          Appellee underwent several surgeries as a result of the injuries, a majority of which were performed by Dr. Arthur Johnson. However, Dr. Kyle Mangels performed appellee's last surgical procedure in August 2016. Dr. Johnson assigned appellee a 16 percent (16%) impairment rating to the body as a whole in January 2014. The rating was accepted and paid by appellants. Appellee received a 3 percent (3%) impairment rating for his 2016 injury, which was also accepted and paid. Appellee filed a claim contending that he was entitled to an impairment rating for his June 2014 injury as well as permanent partial-disability benefits for wage loss and a controverted attorney's fee.

         Appellants requested an impairment-rating report from Dr. Mangels. In a report dated August 4, 2017, Dr. Mangels opined that appellee had a total impairment rating of 30 percent (30%). Appellants also had Dr. Bruce W. Randolph to prepare an impairment-rating report. In the report dated August 14, 2017, Dr. Randolph opined that appellee had a total impairment rating of 28 percent (28%). At the time of the hearing, appellants maintained that appellee only had a 28 percent (28%) impairment rating to his body as a whole and agreed to pay benefits based on that amount. However, appellee maintained that he was entitled to the 30 percent (30%) rating assigned by Dr. Mangels. The Administrative Law Judge (ALJ) agreed that appellee was entitled to the 30 percent (30%) rating, finding in pertinent part:

I agree based upon my finding that Dr. Mangels' opinion is credible and entitled to great weight. Dr. Mangels was the claimant's authorized treating physician and performed the last surgical procedure on claimant's lumbar spine. Dr. Randolph was not the claimant's authorized treating physician and Dr. Randolph has not examined the claimant but instead has only reviewed medical records. Based on this evidence, I find that Dr. Mangels' opinion is entitled to greater weight.
Accordingly, based on Dr. Mangels' opinion, which I find to be credible and in accordance with the AMA Guides, I find that claimant's total anatomical impairment equals 30% to the body as a whole.

         The ALJ's opinion in regard to appellee's entitlement to wage loss, stated in pertinent part:

The next issue for consideration involves the extent of claimant's wage loss. Notably, claimant does not contend that he is permanently totally disabled. Pursuant to A.C.A. §11-9-522(b)(1) when considering claims for permanent partial disability benefits in excess of the percentage of permanent physical impairment, the Commission may take into account various factors including the percentage of impairment as well as the employee's age, education, work experience, and all other matters reasonably expected to affect his future earning capacity.
Here, as previously discussed, the claimant has a 30% impairment as a result of his compensable injuries. On May 15, 2017, Dr. Mangels assigned claimant a 20-pound lifting restriction. Dr. Mangels also completed a form specific to the respondent indicating that claimant could constantly perform data entry/typing and simple grasping work. Dr. Mangels indicated that claimant could frequently stand/walk, sit, and push and pull. Dr. Mangels indicated that claimant could occasionally twist, bend, squat, kneel, climb, reach, flag traffic, weedeat, operate foot controls, and drive a car/truck. Claimant presented these restrictions to the respondent and was informed that no work was available within those restrictions.
The claimant is a 52-year-old man and he has a 12th grade education. Claimant worked for the respondent driving a truck for eleven years. Prior to his employment with the respondent claimant worked driving a truck for Fed Ex. Claimant testified that in the performance of that job he was required to load and unload trailers and also work on the dock. Claimant performed this job for 18 ½ years. Prior to his employment with Fed Ex the claimant worked for Lowe's.
When claimant was not returned to work by the respondent, it offered claimant vocational rehabilitation with Heather Taylor. Taylor is a vocational rehabilitation counselor and she testified at the hearing. Taylor testified that she met with the claimant in June in order to complete a vocational evaluation. In the course of that evaluation Taylor gave the claimant a Wide Range Achievement Test which measures academic achievement in four different areas. Claimant's test results included Word Reading at the grade equivalent of 4.8; Sentence ...

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