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Arkansas Department of Transportation v. Abercrombie

Court of Appeals of Arkansas, Division III

September 11, 2019

ARKANSAS DEPARTMENT OF TRANSPORTATION and Arkansas Insurance Department, Public Employee Claims Division, Appellants
John ABERCROMBIE and Death and Permanent Total Disability Trust Fund, Appellees

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[Copyrighted Material Omitted]

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         Robert H. Montgomery, Public Employee Claims Division, for appellants.

         Moore, Giles & Matteson, L.L.P., by: Greg Giles, for appellee.


         KENNETH S. HIXSON, Judge

          Appellants, Arkansas Department of Transportation (ADT) and Arkansas Insurance Department, Public Employee Claims Division (PECD), appeal from a December 17, 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 appellee, John Abercrombie. The Commission found that Abercrombie was entitled to a 50 percent wage-loss disability benefit. On appeal, ADT and PECD (collectively appellants) contend that substantial evidence does not support the Commission’s finding that Abercrombie proved his entitlement to 50 percent wage-loss disability benefit. We affirm.

          I. Relevant Facts

          Many of the facts are undisputed. Abercrombie was sixty-two years old at the time of the hearing before the ALJ. He obtained his graduate equivalency degree while he was in the United States Army. After his honorable discharge, he worked as a truck driver and also at a dairy. In 1986, he obtained an associate’s degree in computer programming and began his employment at ADT following his graduation in the computer and information-technology section. He assisted in the user-support group, wrote computer code, and maintained equipment utilized by ADT. Although Abercrombie had sustained previous work-related injuries and had other surgeries during his lifetime, he had no work restrictions when he sustained the

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compensable injury at issue. It is undisputed that Abercrombie sustained the compensable back injury at issue on December 5, 2014, while moving a printer during his employment at ADT.

         After the injury, Abercrombie had pain in his back and left leg and had difficulty ambulating. He underwent surgery on January 26, 2015, by Dr. Anthony Capocelli, which included decompressive laminectomy with pedicle screw instrumentation and lumbar TLIF. However, after Abercrombie’s back symptoms did not resolve, Dr. Capocelli operated again on May 5, 2016, performing an anterior lumbar fusion. Unfortunately, Abercrombie suffered a complication from the surgery that caused an abdominal hematoma, necessitating yet another surgery. Because physical therapy did not help, Abercrombie was also referred to Dr. Carlos Roman for pain management. In addition to a TENS unit and pain medication, Abercrombie has received several epidural steroid injections under Dr. Roman’s care.

          On February 10, 2017, a functional capacity evaluation was conducted, and Abercrombie demonstrated the ability to perform work in the "LIGHT classification of work as defined by the U.S. Dept. of Labor’s guidelines." Abercrombie reached maximum medical improvement as of February 21, 2017, and was assigned an impairment rating of 19 percent to the body as a whole. He was further released to work on March 28, 2017, with the following work restrictions: light duty capacity with frequent position changes; no more than ten pounds lifting frequently and twenty pounds occasionally; no squatting, climbing, working on vibrating platforms, or working at heights; and avoid dust and fumes.

          Thereafter, Abercrombie first reported back to work one morning in early April 2017 at approximately 7:00 a.m. However, according to Abercrombie’s testimony before the ALJ, ADT did not appear to be ready for his return. Someone else was occupying Abercrombie’s desk, but ADT was eventually able to locate a variable-height desk that would allow him to work while either sitting or standing. His newly assigned desk was located near a pile of outmoded equipment, and he testified that he was afraid to move any equipment because he did not want to reinjure himself. ADT did not have a computer for him to use, as his old one was missing, and Abercrombie spent some of his time that morning trying to find a comfortable chair. Although he was not provided with a suitable computer that morning, he acknowledged that personnel were attempting to locate one for him. Abercrombie additionally explained that he spent the first hour and forty-five minutes of his work making coffee, visiting with colleagues, and attempting to find a comfortable chair.

          He further testified that with his medication, he was "foggy and dumbfounded." When a highway police officer brought him a technological issue, he was unsure how to help him because he had been absent from the job for two years, and technology had advanced during the interim. Moreover, Abercrombie testified that he was "just in a fog" and that his pain symptoms "went from bad to worse." He stated that his pain level was a five or six out of ten when he arrived at work but that it was nearly an eight out of ten by 9:00 a.m. Therefore, Abercrombie stated that because of the spasms, pain, and medication, he could not continue working and that he needed to go home. He explained that at that time, he was ready and willing to work and that although he thought he was able to work, he discovered that he was "not capable of working." Thus, based on his conclusion that he was unable to work, he decided to leave the Deferred Retirement Option

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Plan (DROP) program early and file his retirement paperwork with ADT just a few hours after reporting to work in April 2017. Abercrombie had entered the DROP program in July 2014, and he stated that it had been his intention to retire five years thereafter.

          Pamela Abercrombie, John Abercrombie’s wife, echoed her husband’s testimony that he had spasms, could not walk very far, had difficulty concentrating and with his memory, and needed to change positions frequently. She further testified that she did not think her husband was physically capable of working given ...

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