Opinion
CLAIM NO. E118612
OPINION FILED JULY 13, 1994
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by DAVID HARP, Attorney at Law, Fort Smith, Arkansas.
Respondents represented by THOMAS W. MICKEL, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed.
OPINION AND ORDER
Respondents appeal an opinion of the Administrative Law Judge filed on June 29, 1993.
The Administrative Law Judge found that claimant is entitled to benefits for temporary total disability from July 6, 1992 to April 1, 1993; that claimant is entitled to benefits for a permanent anatomical impairment of 4% to the body as a whole; and that claimant is entitled to benefits for a wage loss disability of 4% to the body as a whole.
Claimant has the burden of proving by a preponderance of the evidence that he is entitled to compensation. Stone v. Patel, 26 Ark. App. 54, 759 S.W.2d 579 (1988); Ark Code Ann. § 11-9-705 (a)(3) (Supp. 1993). Questions of credibility and the weight and sufficiency to be given evidence are matters within the province of the Workers' Compensation Commission. Central Maloney Inc. v. York, 10 Ark. App. 254, 663 S.W.2d 196 (1984). After our de novo review of the entire record, we find that claimant has met his burden of proof and accordingly, affirm the opinion of the Administrative Law Judge.
Claimant was a truck driver for the employer. Claimant testified that on October 16, 1991, he sustained an injury when a desk fell on "the top of the middle of my back close to my shoulder." Claimant stated that he experienced pain in the middle of his back up into his head. Shortly after the accident, claimant began to experience severe headaches. Claimant eventually came under the care of Dr. J. L. Hart, who released claimant to return to work with the employer on January 13, 1992. Claimant did return to work but was discharged by the employer shortly thereafter.
On July 6, 1992, claimant was evaluated by Dr. Alice M. Martinson at the request of the Administrative Law Judge. Dr. Martinson reported that claimant had "sustained a significant soft tissue strain to the neck and shoulder area. His headaches are characteristic of muscle tension." Dr. Martinson opined that additional medical treatment was indicated and that claimant might be able to return to work within three or four months.
Respondents referred claimant to Dr. Barry J. Gainor, an orthopedic surgeon. In a report dated October 26, 1992, Dr. Gainor opined that claimant "had probably obtained maximum medical benefit." However, Dr. Gainor treated claimant on subsequent occasions. After X-rays revealed a loss of lordosis and osteoarthritic spurring at the T9-T10 level, Dr. Gainor prescribed physical therapy and referred claimant for a neurology consultation. In a report dated January 26, 1993, Dr. John A. Byer, a neurologist, reported that claimant was being evaluated at the University of Missouri Hospital in Columbia and that claimant should not return to truck driving for at least one month.
At the University of Missouri-Columbia, claimant was evaluated by Dr. Michael E. Acuff. Dr. Acuff reported the following:
My impression is that Mr. Self has a chronic cervical strain and myofascial pain syndrome that is exacerbated by prolonged driving or detailed concentrated activity. My recommendation includes a review of his cervical range of motion and flexibility exercises by Physical Therapy because he's not doing his home exercise program at this time. Also, I have sent him to the Rusk Physical Therapy Department to receive microcurrent treatments to his occipitalis and cervical paraspinal muscles for this chronic with cute exacerbations of pain in these regions.
After claimant's condition improved significantly with the treatment prescribed by Dr. Acuff, he was released to return to work as of April 1, 1993. Thereafter, respondents referred claimant to be re-evaluated by Dr. Martinson. Dr. Martinson agreed with Dr. Acuff that claimant's healing period ended on April 1, 1993. Dr. Martinson added the following:
The long hours required of a truck driver and the degree of tension which would almost certainly be present at many times in that occupation could be expected to express itself in this man by a recurrence of his complaints. . . . I have advised him, as have others, that he would be best served by seeking vocational counseling and training for another line of work.
Temporary total disability is that period within the healing period in which claimant suffers a total incapacity to earn wages. Ark. State Highway Transportation Dept. v. Breshers, 272 Ark. 244, 613 S.W.2d 392 (1981).
Based on claimant's credible testimony concerning his ability to work, and the above medical evidence concerning claimant's healing period and ability to return to work, we find that claimant has proven by a preponderance of the evidence that he is entitled to temporary total disability benefits from July 6, 1992 to April 1, 1993. However, claimant acknowledged that he received unemployment insurance benefits from April 30, 1992 to September 13, 1992. Claimant likewise is not seeking temporary total disability benefits during this period of time. Therefore, we clarify the opinion of the Administrative Law Judge to show that claimant's period of temporary total disability was from September 13, 1992 to April 1, 1993.
Concerning claimant's permanent anatomical impairment, respondents assert that any impairment rating is not supported by objective and measurable findings. However, there is radiographic evidence of loss of lordosis and osteoarthritic spurring at the T9-T10 level. These findings are sufficiently objective and measurable to support Dr. Martinson's opinion that claimant's permanent anatomical impairment is 4% to the body as a whole.
Claimant is presently 29 years old and obtained his GED while in the Army, where he was a tank crewman and eventually became qualified to work on tank diesel engines. However, claimant testified that he has never been able to obtain employment as a diesel mechanic. Additionally, claimant has work experience in a factory in quality control and has owned his own business hauling and selling scrap metal.
Claimant is unable to return to long-haul truck driving. Claimant testified that he has sought employment with "local driving companies," which would pay him significantly less than he was earning with the employer. Claimant stated that he simply cannot drive for extended periods of time without experiencing an increase in his symptoms.
Based on the above evidence, we find that claimant has proven by a preponderance of the evidence that he is entitled to benefits for a loss in earning capacity of 4% to the body as a whole.
Respondents argue that pursuant to Ark. Code Ann. § 11-9-522 (c)(2) (Supp. 1993), claimant is not entitled to any benefits for wage loss disability because he was discharged for misconduct in connection with the work.
After claimant returned to work in January 1992, he experienced a blackout while on a trip. Claimant's wife was able to get the truck under control. Claimant notified Linda Williams, claims director for the employer, of the incident. Claimant testified that Williams responded that "he was grounded." The employer made arrangements for claimant and his wife to return home by bus. However, when claimant was unable to secure his personal belongings, he drove the truck a very short distance to the bus station. As a result of this, claimant's employment was terminated upon his arrival in Arkansas.
Williams testified that claimant violated Department of Transportation regulations when he drove the truck to the bus station. Williams testified that claimant was discharged for violation of DOT regulations and an order by the employer not to drive the truck. Claimant disputed this testimony by responding that Williams only said, "You are grounded." It should be noted that as a result of the initial medical evaluation following the compensable injury, a physician had instructed claimant not to drive the truck. Williams acknowledged being aware of this restriction and still allowing claimant to drive 84 miles to the employer's nearest terminal.
A good faith error in judgment or discretion is insufficient to constitute misconduct in connection with the work. "There must be an intentional or deliberate violation, a willful or wanton disregard, or carelessness or negligence of such degree or recurrence as to manifest wrongful intent or evil design." Nipco, Inc. v. Metcalf, 1 Ark. App. 114, 613 S.W.2d 612 (1981). Although the employer may have been justified in discharging claimant, we find that there is insufficient evidence that claimant's actions constituted misconduct in connection with the work.
Even if claimant had been discharged for misconduct in connection with the work, Ark. Code Ann. § 11-9-522 (c)(2) has no application in the present case. In J B Drilling Co. v. Lawrence, 45 Ark. App. 157, ___ S.W.2d ___, (1994), the court stated the following:
Section 11-9-522 (c)(2) states that benefits for wage-loss disability are barred thereunder only when such disability `exists . . . because' the claimant left his work voluntarily and without good cause. In other words, a claimant will be barred from receiving benefits for wage-loss disability under subsection (c)(2) if, but for his voluntary termination of his employment, he would still be employed and thus barred from receiving such benefits because of the provisions of subsection (b).
The same reasoning applies whether the situation involves a voluntary quit or a discharge for misconduct.
The greater weight of the evidence indicates that claimant is unable to return to work as a long-haul truck driver for the employer or any other employer. Therefore, the evidence does not support a finding that claimant would still be employed in that capacity but for his discharge for misconduct in connection with the work.
For the foregoing reasons, we affirm, as clarified, the Administrative Law Judge's award of temporary total disability benefits, as well as the award of benefits for permanent anatomical impairment and wage loss disability. Respondents are directed to comply with the award set forth in the opinion of the Administrative Law Judge. All accrued benefits shall be paid in a lump sum without discount and with interest thereon at the lawful rate from the date of the opinion of the Administrative Law Judge. For prevailing on this appeal before the Commission, claimant's attorney is hereby awarded an additional attorney's fee in the amount of $250.00.
IT IS SO ORDERED.
CONCURRING AND DISSENTING OPINION
I concur with the majority's opinion finding that claimant was temporarily and totally disabled from September 13, 1992 through April 1, 1993, specifically finding that claimant is not entitled to temporary total disability benefits during the time he received unemployment insurance benefits. I also concur with the majority's opinion finding that claimant has proven by a preponderance of the credible evidence that he has sustained a 4% permanent anatomical impairment rating. However, I dissent from the majority's opinion finding that claimant has proven by a preponderance of the credible evidence that he is entitled to permanent partial disability benefits associated with wage loss. Therefore, I concur in part and dissent in part with the majority's opinion.
Claimant is a 28 year old man who was employed with the respondent as a truck driver. On or about October 16, 1991, claimant suffered a work-related injury while unloading roll top desks while in Syracuse, New York. Claimant was paid temporary total disability benefits until January 13, 1992. Claimant returned to work on January 13, 1992. While working for respondent on or about January 28, 1992, claimant reported a blackout spell while driving his truck from Texas to Fort Smith, Arkansas. He drove his truck subsequently, in contravention of the DOT regulations, and was terminated. Claimant maintains that he is entitled to additional temporary total disability benefits from January 29, 1992 and through April 30, 1992 and from September 12, 1992 through April 1, 1993. Claimant also maintains he is entitled to a 10% permanent anatomical impairment rating, as well as, wage loss disability. Respondent maintains that claimant has been paid all benefits owed. A hearing was held and an Administrative Law Judge found in favor of the claimant.
The burden of proving the job relatedness of any alleged injury rests upon the claimant, Pearson v. Faulkner Radio Service, 220 Ark. 368, 247 S.W.2d 964 (1952); and there is no presumption to this effect, Farmer v. L.H. Knight Co., 220 Ark. 333, 248 S.W.2d 111 (1952). Indeed, the party having the burden of proof on the issue must establish it by a preponderance of the evidence. A.C.A. § 11-9-704 (c)(2) (1986). In determining whether a claimant has sustained his or her burden of proof, the Commission shall weigh the evidence impartially, without giving the benefit of the doubt to either party. A.C.A. § 11-9-704;Wade v. Mr. C Cavenaugh's, 298 Ark. 363, 768 S.W.2d 521 (1989); and Fowler v. McHenry, 22 Ark. App. 196, 737 S.W.2d 663 (1987). Additionally, a determination of wage loss disability is not a mathematical formula to be determined by calculation, but an evaluation of several factors, including but not limited to medical evidence, age, work experience, pre-injury and post-injury wages, education, interest in rehabilitation and vocational rehabilitation and attitude,Chism v. Jones, 9 Ark. App. 286, 658 S.W.2d 427 (1983);Nicklos v. Hempstead Co. Memorial Hospital, 9 Ark. App. 261, 658 S.W.2d 408 (1983); City of Fayetteville v. Guess, 10 Ark. App. 313, 663 S.W.2d 946 (1984). Furthermore, the amount of wages in and of itself is not determining factor.Blann v. Harvill-Byrd Electric Co., 249 Ark. 456, 459 S.W.2d 567 (1970); Terrell v. Austin Bridge Co., 10 Ark. App. 1, 660 S.W.2d 941 (1983).
A preponderance of the credible evidence indicates that claimant is entitled to additional temporary total disability benefits through September 13, 1992 but not for the time period in which he received unemployment benefits.
The medical evidence shows that Dr. Hart ended claimant's healing period as of January 29, 1992. However, Dr. Martinson subsequently opined that claimant was still in his healing period as of June 6, 1992. Although I do not value the Administrative Law Judge's argument that Dr. Martinson's opinion is more credible than Dr. Hart's because Dr. Hart is a Missouri doctor, I do find that a preponderance of the credible evidence indicates that claimant was within his healing period subsequent to July 6, 1992. However, a preponderance of the evidence does not support the determination that claimant is entitled to temporary total disability benefits for the time period in which he was drawing unemployment benefits from April 30, 1992 through September 13, 1992. Under the guise of a "clarification," the majority has made the appropriate adjustment.
Also, a preponderance of the evidence shows that claimant's 4% permanent partial impairment rating is supported by a preponderance of the medical evidence. Therefore, I would concur with this portion of the majority's decision.
A preponderance of the credible evidence does not show that claimant is entitled to any wage loss disability benefits in excess of his permanent anatomical impairment rating. When considering all the factors involved in assessing a wage loss impairment rating, claimant's age, education, work history, motivation, pre-injury and post-injury earnings, a preponderance of the credible evidence does not indicate that claimant is entitled to any wage loss disability.
Claimant is quite young. In fact, at the time of the incident, claimant was 28 years old. Although claimant did not graduate from high school, he completed the 11th grade and subsequently obtained a GED. While in the military, claimant received training as a diesel mechanic, a marketable skill. Furthermore, claimant has vast work experience ranging from driving a motor vehicle to quality control in a chemical factory to running a scrap business.
Additionally, it is significant that claimant was primarily out of work because of justifiable termination. Claimant violated the motor vehicle carrier regulations. According to A.C.A. § 11-9-522 (c)(2):
Included in the stated intent of this section, it is to enable an employer to reduce or diminish payments of benefits for functional disability, disability in excess of permanent physical impairment, which, in fact, no longer exists, or exists because of discharge for misconduct in connection with the work. . .
A preponderance of the evidence indicates that claimant was terminated from his employment because he violated a Federal Motor Carrier Regulation by moving the employer's truck after he reported that he had blacked-out at the wheel. Claimant admits that he was grounded but moved the truck for his personal benefit. The majority is glossing over the fact that claimant violated the Federal Motor Carrier Regulation. Claimant was behind the wheel of an 80,000 pound truck traveling on a public area after suffering blackouts. What if claimant had experienced a blackout while driving this vehicle and ran into a school bus? In my opinion, the majority would not so readily dismiss claimant's infringement if the consequences of claimant violating the Motor Carrier Regulation had been more egregious. Thus, in my opinion, the fact that claimant knowingly violated a Federal Motor Carrier Regulation by driving the truck after he was grounded is very significant. Therefore, I am of the opinion claimant is not entitled to wage loss. Wage loss, in this case, is simply a bonus for claimant being in violation of a federal regulation. The regulation is designed to protect not only the general public, but this very employee (indeed all employees) as well. For this Commission to refuse to even acknowledge the importance of such safety rules is discouraging. If we allow safety rules to go unenforced just because no one got hurt "this time" then we are doing a disservice to all employees and employers. Therefore, I dissent from this portion of the majority's decision.
ALLYN C. TATUM, Commissioner