Opinion
CLAIM NO. E610722
OPINION FILED NOVEMBER 17, 1997
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant appeared pro se.
Respondents represented by the HONORABLE BETTY DEMORY, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed in part and modified in part.
OPINION AND ORDER
The respondents have appealed an administrative law judge's decision handed down on March 3, 1997. In that decision, the administrative law judge found that the respondents had miscalculated the claimant's TTD benefit rate and ordered the respondents to begin paying the claimant temporary total disability benefits at the rate of $305.00 per week. The administrative law judge also found that the claimant was entitled to additional TTD benefits through October 28, 1996. For the reasons set out below, we modify the administrative law judge's decision in regard to the claimant's benefit rate, and affirm the administrative law judge's decision to the effect that the claimant is entitled to receive TTD benefits through October 28, 1996.
The claimant suffered an admittedly compensable injury to his right hand on May 13, 1996. At the time of his injury, the claimant was employed as a mechanic to work on the various trucks and other heavy equipment used by the employer in his business operations. The claimant testified that a hammer broke while he was using it, causing pieces of steel to be driven into his right hand. However, the claimant did not become disabled until August 12, 1996. The respondents paid TTD benefits to the claimant in the amount of $182.00 per week from August 12, 1996 to September 26, 1996, plus all the claimant's medical expenses.
The claimant, who was appearing pro se, contends that the respondents miscalculated his weekly benefit rate and that he should be receiving significantly higher benefits during the time he was disabled. Also, the claimant asserts that he remained totally disabled and within his healing period through October 28, 1996, and that he should be paid TTD benefits through that date. The respondents contend that the amount of the claimant's weekly TTD benefits was correctly calculated and should include all of the wages paid to the claimant by respondents during the claimant's prior periods of employment with the respondent, and that he was released from his treating physician to return to work no later than September 30, 1996.
The only two witnesses to testify in this case was the claimant and Mr. Robert Blackman, the owner of the respondent employer. According to the testimony of these witnesses, the respondents operated a long-haul trucking operation that delivered produce to the west coast and northern United States. The respondents also operated a local gasoline and petroleum distribution business, and similar activities at the same location. The claimant had on different occasions in the past, been employed in various capacities for the respondents, usually as a truck driver. However, at the time of the injury, the claimant had been hired by the respondents to work as a mechanic while the respondents' regular mechanic was serving a jail sentence. Prior to being employed as a mechanic on April 26, 1996, the claimant had last worked for the respondents on February 2, 1996. The claimant testified that, at the time he was hired, he was told that his employment would last up to four years, or until the regular mechanic was released from jail. Mr. Blackman testified that he advised the claimant that his job was only to be temporary in nature. The claimant was apparently hired in this capacity in late April of 1996. In spite of being injured, the claimant did not miss any work until August 1996. Apparently, the regular mechanic was released from jail in early August of that year, and upon his return to work, the claimant was laid off. Since the claimant underwent surgery on August 12th, the respondents began paying him TTD benefits on that date and continued those benefits until September 26, 1996.
The administrative law judge held that the claimant's benefit rate should be based solely upon his wages while employed as a mechanic, and should not include wages paid to him during previous periods of employment with the respondents. The administrative law judge reviewed a statement from the respondents indicating that during the period of time the claimant was employed as a mechanic (April 26, 1996 through August 2, 1996), he was paid a total of $6,880.18 for an average weekly wage of $458.67 per week and a total disability benefit rate of $306.00 per week. The administrative law judge also relied upon a statement from the claimant's treating physician, Dr. Michael Turner, an orthopedist from Poplar Bluff, Missouri, which stated that the claimant would not be able to return to work until October 28, 1996, to find that the claimant was entitled to TTD benefits through that date.
The first issue that must be determined in this case is the correct amount of the claimant's total disability benefits. The amount of a claimant's weekly benefit rate is governed by A.C.A. § 11-9-501 and A.C.A. § 11-9-518. The first of those sections states that the claimant's benefit rate for total disability shall be 66 2/3 of the employee's average weekly wage subject to the maximum benefit rate. At the time of the claimant's injury, the maximum benefit rate was $348.00 per week.
The method for computing a claimant's average weekly wage is set out in A.C.A. § 11-9-518. That section provides that the compensation shall be computed on the average weekly wage earned by the employee under the contract of hire in force at the time of the accident. Also, the claimant's wages must be computed based upon a full-time work week. The statute goes on to provide that in determining an average weekly wage, the claimant's wages for the proceeding 52 weeks may be considered. The statute also allows overtime wages to be considered, and provides that if there are exceptional circumstances and the claimant's average weekly wage cannot be justly determined by using such methods, the Commission may determine the average weekly wage by a method that is just and fair to all parties concerned.
In our opinion, the administrative law judge was correct in his holding that the claimant's average weekly wage should be based upon his salary as a mechanic beginning on or about April 26, 1996. While it is true that the claimant had been employed by the respondents at various times in the past, those jobs were of a different nature and were not governed by the same contract of hire. For example, both the claimant and Mr. Blackman testified that while the claimant was employed as a truck driver, he was paid on a per load basis and was performing drastically different job duties. On the other hand, the claimant's pay records for the time he was employed as a mechanic, appear to indicate that the claimant was paid on an hourly basis. However, it is surprising to note that at no time during the hearing did anyone ever inquire of the claimant or Mr. Blackman as to what the hourly rate of pay the claimant was receiving while employed as a mechanic. However, among the documents admitted as evidence, there is a statement from the employer showing the claimant's weekly wages between April 26, 1996 through August 7, 1996.
In determining the claimant's average weekly wage, the administrative law judge relied upon the document referred to above and calculated the claimant's wages based upon his salary during the entire time he was employed as a mechanic, even though this included a period of time after the claimant's injury. On that basis, the administrative law judge found that the claimant's average weekly wage was $458.67, which would result in a total benefit rate of $305.00 per week. While the respondents are now apparently conceding that the claimant is entitled to more than $182.00 per week, they assert that if his wages are computed upon his salary as a mechanic, only the wages he received prior to his injury should be considered. Using the respondents' suggested method, the claimant has an average weekly wage of $402.75 per week which would entitle him to TTD benefits in an amount equal to $269.00 per week.
We find that the best method for computing the claimant's TTD benefit rate in this case would be to rely on his wages as a mechanic prior to the date of his injury. However, we do not believe that using the claimant's wages after that date to determine his average weekly wage is necessarily prohibited by the statute. A.C.A. § 11-9-518 (C), specifically provides that the Commission can determine a claimant's average weekly wage in a manner fair to the parties if extraordinary circumstances are present. On the other hand, we do not believe that the circumstances in this case are sufficiently compelling to justify considering the claimant's post injury wages. In reaching that conclusion, we note that the claimant stopped working not because of his disability but because the regular mechanic was released from jail. We further note that the claimant's wages fluctuated considerably because of the amount of overtime that he worked. In fact, the claimant's average weekly wage was boosted substantially by the relatively high wages he earned in the last few weeks of his employment.
We therefore find that the claimant's average weekly wage was $402.75 per week and that his weekly total disability rate was $268.63 per week. The respondents are accordingly directed to provide the claimant TTD benefits at that rate.
The other issue that must be decided in this case, is the claimant's entitlement to TTD benefits after September 26, 1996. In this regard, the record contains a short note from Dr. Turner stating the claimant was off work from July 30, 1996 through September 30, 1996. That statement is written on a letter which the claimant's former attorney sent to Dr. Turner on September 30, 1996. The record also contains a note from Dr. Turner dated October 21, 1996, indicating that the claimant would be able to return to work on October 28, 1996. During the hearing, Mr. Blackman admitted that he contacted the claimant on or about September 26, 1996, and inquired as to whether or not he could return to work. The claimant asserts that Mr. Blackman did not return him to employment since, at the time this conversation took place, the claimant was undergoing physical therapy at Dr. Turner's direction, and this physical therapy required the claimant to receive treatment three days a week. According to the claimant, Mr. Blackman was not willing to return the claimant to work on such a limited basis. Mr. Blackman stated that he thought the phone call had occurred later than September 26, and that the reason the claimant would not return to driving a truck was because of family considerations. However, Mr. Blackman stated that the claimant later did return to truck driving for him for a brief period in December 1996.
We affirm the administrative law judge's decision and award the claimant TTD benefits through October 28, 1996. While there are no medical reports in the record indicating the specific nature of the claimant's injury or treatment, it has been established by testimony that the claimant did undergo surgery on his hand in August 1996. The respondents concede that the claimant was disabled at least through September 30, 1996. Also, the claimant testified, and the respondents did not contest, that he underwent therapy three times a week throughout October of 1996. In our opinion, if the claimant was undergoing extensive therapy three times per week so as to preclude him from working on those days, it would not be reasonable to expect that another employer would have hired the claimant at that time. Moreover, it appears from Dr. Turner's statement of October 21, 1996,that the claimant was not released to return to work until October 28, 1996. Also, considering that the employment which the respondents could have offered the claimant was in the nature of the truck driving or mechanical repair, it seems unlikely that he would have been willing to provide the claimant employment on such a limited basis. Lastly, if the claimant was refusing to accept employment as a truck driver because of his concerns for his family, it seems unlikely that he would have accepted such a job in December 1996, but would have declined such a position two months before. In short, we believe that the claimant was still totally disabled and within his healing period through October 28, 1996. For that reason, we affirm the administrative law judge's award of TTD benefits during that period of time.
For the reasons set out above, we find that the claimant's correct total disability benefit rate is $269.00 per week, and that he is entitled to receive that amount in temporary total disability benefits from August 12, 1996, through October 28, 1996. All benefits awarded herein shall be paid in a lump sum without discount, and shall bear interest at the maximum legal rate until paid.
IT IS SO ORDERED.
CONCURRING DISSENTING OPINION
I concur in part and dissent in part from the majority opinion. Specifically, I concur with the finding that claimant's average weekly wage should be based upon his wages for the weeks preceding his injury for the time period that claimant worked as a mechanic for the respondent. However, I respectfully dissent from the finding that claimant is entitled to temporary total disability benefits through October 28, 1996. In my opinion, claimant has only proven entitlement to temporary total disability benefits through the end of September when he was released to return to work by his treating physician. The mere fact that claimant was required to undergo physical therapy after being released to return to work, does not, in my opinion operate to extend claimant's healing period.
MIKE WILSON, Commissioner