Arkansas Department of Correction v. Jackson

          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 ...