ARKANSAS DEPARTMENT OF CORRECTION, AND ARKANSAS INSURANCE DEPARTMENT, PUBLIC EMPLOYEE CLAIMS DIVISION APPELLANTS
v.
JAMES JACKSON AND DEATH AND PERMANENT TOTAL DISABILITY TRUST FUND APPELLEES
APPEAL
FROM THE ARKANSAS WORKERS' COMPENSATION COMMISSION [NO.
G310126]
Charles H. McLemore Jr., Public Employee Claims Division, for
appellant.
Gary
Davis, for appellee.
KENNETH S. HIXSON, Judge
Appellants,
Arkansas Department of Correction (ADC) and Arkansas
Insurance Department, Public Employee Claims Division (PECD),
appeal from a May 4, 2018 opinion by the Arkansas
Workers' Compensation Commission (Commission) affirming
and adopting the findings of fact and conclusions of law made
by the administrative law judge (ALJ) in favor of appellees,
James Jackson (Jackson) and the Death and Permanent Total
Disability Trust Fund (Trust Fund). The Commission found in
relevant part that Jackson was entitled to a 20 percent wage
loss in addition to the 3 percent anatomical impairment
rating for a total of 23 percent because the back injury was
the major cause of Jackson's disability, that Jackson was
not permanently and totally disabled, that Jackson's
correct compensation rate was based on Jackson's contract
of hire, and that PECD was not entitled to a credit due to
its binding stipulation on the compensation rate at the first
hearing.
On
appeal, appellants contend that substantial evidence does not
support the Commission's findings that (1) Jackson met
his burden of proving that he is entitled to the additional
20 percent wage-loss disability and that the compensable back
injury was the major cause of Jackson's disability; (2)
Jackson's average weekly wage is $18.95 an hour for
eighty hours every two weeks based on a contract of hire; or
(3) appellants are not entitled to a credit for the
overpayment of benefits at the erroneous wage rate. We
affirm.
I.
Relevant Facts
It is
undisputed that Jackson sustained a compensable back injury
on December 9, 2013. Jackson worked for twenty-three years as
a prison guard for ADC before his accident and had been
supervising twenty-six employees. On December 9, 2013,
Jackson felt a pop in his back after lifting a dummy during
his physical-endurance test.
Jackson
was treated by his general practitioner, Dr. Simon, and was
eventually referred to Dr. P.B. Simpson, a neurosurgeon.
Although MRI testing showed "a herniated nucleus
pulposus (HNP) at L4-5 with an acute annular tear and an
L5-S1 HNP with nerve root compression," Dr. Simpson
disagreed with the radiologist's opinion and diagnosed
Jackson with a lumbar strain, degenerative-disc disease, and
spondylosis. Dr. Simpson recommended an epidural steroid
injection, physical therapy, and follow up with Dr. Simon.
When Jackson's symptoms persisted, Dr. Simpson ordered a
myelogram and CT scan, which were unremarkable. A functional
capacity evaluation (FCE) was performed on April 8, 2014, and
the results demonstrated that Jackson had the ability to work
in the medium classification. Therefore, Dr. Simpson released
Jackson on April 14, 2014, and assessed a 3 percent
impairment rating for degenerative-disc disease.
Thereafter,
in 2015, Jackson sought unauthorized treatment from Dr. Brad
Thomas, another neurosurgeon, and Dr. Scott Bowen, an
orthopedic surgeon. Jackson's treatment and subsequent
surgery with these doctors were the subject of the first
hearing with an ALJ in November 2015. At the 2015 hearing,
ADC and PECD stipulated that Jackson had sustained a
compensable injury at a compensation rate of $602/$452 and
was entitled to medical expenses, temporary total-disability
benefits until April 14, 2014, and a 3 percent impairment
rating to the body as a whole as assessed by Dr. Simpson.
Appellants disputed, however, that Jackson was entitled to
additional benefits for any unauthorized treatments and
surgery from Dr. Thomas and Dr. Bowen. In a February 4, 2016
opinion, the ALJ made the following pertinent findings:
2. The claimant's first healing period ended April 14,
2014, when Dr. Simpson released him from his care. The
claimant reentered a second healing period on May 21, 2015,
when Dr. Thomas performed surgery.
3. The surgery performed by Dr. Thomas was unreasonable and
unnecessary in relation to the injury sustained. Therefore,
the respondents [ADC and PECD] are not liable for temporary
total disability benefits.
4. Dr. Simpson is an authorized treating physician and it was
permissible for the claimant to return for follow-up even
after his release. Respondents remain liable for Dr.
Simpson's expense.
5. The claimant saw Dr. Thomas for a second opinion and
should haveobtained the permission of the carrier or the
Commission to change physicians to Dr. Thomas. Dr. Thomas and
Dr. Bowen are unauthorized physicians and respondents are not
liable for expenses associated with their treatment.
The ALJ also noted that Jackson remained symptomatic even
after his surgery and that repeat diagnostic testing showed a
recurrent disc herniation. Jackson appealed that decision to
the Commission, and the Commission affirmed and adopted the
ALJ's decision on September 7, 2016. The decision was not
appealed to the court of appeals.
After
the Commission's 2016 decision, Jackson followed up with
his general practitioner, Dr. Simon, and exercised his
one-time change of physician. On April 5, 2017, Dr. Simon
signed a statement explaining that Jackson was not able to
work as a result of the December 9, 2013 injury and was
therefore "100% disabled." The record additionally
contains a follow-up letter from Dr. Simon. In that letter,
Dr. Simon indicated "yes" that the "assessment
of the permanent impairment or disability that Mr. Jackson
now has includes the result of the back surgery that Mr.
Jackson had on May 21, 2015[.]"
A
second hearing with an ALJ was held on August 11, 2017.
According to the June 29, 2017 prehearing order, the issues
for litigation included the correct compensation rate, the
loss of earning capacity, the Trust Fund's liability, and
attorney's fees. Jackson claimed that he was permanently
and totally disabled or suffered wage loss in excess of the
impairment rating due to his age, education, and work
experience. PECD disagreed and contended that Jackson had
already been paid all the benefits he was entitled to
receive. PECD and the Trust Fund additionally contended that
benefits had been paid at an incorrect stipulated
compensation rate of $468/$351 based on a mathematical wage
calculation that included a one-time bonus. PECD claimed that
this resulted in an overpayment of temporary total-disability
(TTD) and permanent partial-disability (PPD) benefits. PECD
sought a credit for any over payment based on the previously
stipulated compensation rate, and the Trust Fund contended
that because it was not a party to the stipulated
compensation rate at the previous hearing, it should not be
bound to the inaccurate compensation rate.
At the
hearing, Jackson testified regarding the case history and the
severity of his disability. He testified that he had not been
able to work since December 12, 2013, and that he had been
working as a lieutenant with ADC. ADC terminated his
employment in March 2014 after Jackson's Family Medical
Leave Act (FMLA) time had been exhausted. Despite applying
for employment at various locations, Jackson had been unable
to find employment. Therefore, Jackson claimed that he had
been unable to work as a result of his 2013 injury, that he
continued to have pain and physical limitations, and that he
used a cane to walk. Jackson further claimed that at one
point before his surgery in 2015, he had to use a wheelchair
and was unable to walk. While his walking had improved since
that time, he still continued to have shooting pain every day
and took medication. Jackson additionally explained that his
symptoms existed before and after the surgery. Initially, the
2015 surgery made him feel better; however, his symptoms
eventually returned approximately a week later.
Heather
Taylor testified that she is a vocational-rehabilitation
counselor and that she had completed a vocational assessment
for Jackson. After looking at Jackson's medical records
and FCE, Taylor had found approximately ten or twelve
potential jobs. However, Taylor claimed that Jackson told her
that he did not think he was capable of working. Although
Taylor testified that Jackson also told her that he was not
going to apply for any jobs, Jackson denied making that
statement. On cross-examination, Taylor admitted that in
looking for potential job opportunities, she does not
necessarily consider whether a person has chronic pain or
limitations due to medications in her assessment. She further
testified that Jackson did not tell her that he was unable to
drive due to a medication he was taking. Additionally, Taylor
acknowledged the fact that Jackson uses a cane to walk and
that the use of a cane could have a negative impact on his
prospects of finding employment.
Regarding
Jackson's compensation rate, Jackson testified that he
had been paid a salary and that he had been hired to work
full time in alternating shifts that consisted of twenty-four
hours one week and fifty-six hours the following week,
totaling eighty hours every two weeks. His pay stubs
reflected an hourly wage rate of $18.95. In addition, there
was much discussion at the hearing between the ALJ and the
parties regarding the wage records that had been submitted.
PECD and the Trust Fund had proposed a new calculation to
determine Jackson's average weekly wage using the last
fifty-two weeks of his employment history. However, the Trust
Fund admitted at one point that at least six of the last
fifty-two weeks had to be dropped because they were not full
time weeks as required by statute. Ultimately, Jackson
clarified that his hours ...