Rick Hazen v. Federal Express Corporation; and Sedgwick Claims Management Services

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

LARRY D. VAUGHT, JUDGE

DIVISION II

RICK HAZEN

APPELLANT

V.

FEDERAL EXPRESS CORPORATION; and SEDGWICK CLAIMS MANAGEMENT SERVICES

APPELLEES

CA03-82

June 18, 2003

APPEAL FROM THE ARKANSAS WORKERS' COMPENSATION COMMISSION

F011598

AFFIRMED

This is an appeal from an Arkansas Workers' Compensation Commission decision determining that appellant was not entitled to any wage-loss disability benefits. Appellant argues on appeal that the Commission's decision is not supported by substantial evidence because it exclusively used a mathematical formula to determine his entitlement to, and the extent of, wage-loss disability rather than relying upon well-established and enumerated wage-loss disability factors. We disagree and affirm.

Appellant Rick Hazen is an employee of appellee Federal Express Corporation (Fed Ex). On October 2, 2000, while working as a pick up/delivery courier, appellant sustained an admittedly compensable work injury to his lower back while loading boxes into his truck. He was examined by the company physician, Dr. Scott Carle, who subsequently referred appellant to a neurosurgeon, Dr. Scott Schlesinger. Surgery was performed to remove a free disc fragment at the L4-5 level of the lumbar spine on October 24, 2000.

A ten-percent whole body impairment rating was issued on April 13, 2001. A valid functional capacity assessment, conducted on April 5, 2001, supported a lifting restriction of no more than thirty-eight pounds. Appellant remained symptomatic with left leg and foot pain, numbness, and tingling, but did subsequently return to work for appellee in a different capacity, namely as a part-time dispatcher.

In an opinion filed on December 18, 2001, the ALJ found appellant to be entitled to a wage-loss disability award of thirty-percent over and above the admitted impairment of ten percent to the body as a whole. Appellees appealed the decision to the Commission, which reversed the ALJ's findings. In its opinion filed on November 13, 2002, the Commission found that appellant was not entitled to any wage-loss disability benefits. This appeal followed.

In determining the sufficiency of the evidence to support the findings of the Workers' Compensation Commission, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission's findings, and we will affirm if those findings are supported by substantial evidence. Williams v. Brown's Sheet Metal, __ Ark. App. __, __S.W.3d __ (April 23, 2003). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Id. The determination of the credibility and weight to be given a witness's testimony is within the sole province of the Commission. Farmers Coop. v. Biles, 77 Ark. App. 1, 69 S.W.3d 899 (2002). The Commission is not required to believe the testimony of the claimant or any other witness, but may accept and translate into findings of fact only those portions of the testimony it deems worthy of belief. Id. We will not reverse the Commission's decision unless we are convinced that fair-··²SDU_4²····²SDU_4²··minded persons with the same facts before them could not have reached the conclusions arrived at by the Commission. Wal-Mart Stores, Inc. v. Sands, 80 Ark. App. 51, 91 S.W.3d 93 (2002).

The wage-loss factor is the extent to which a compensable injury has affected the claimant's ability to earn a livelihood. Emerson Elec. v. Gaston, 75 Ark. App. 232, 58 S.W.3d 848 (2001). To be entitled to any wage-loss disability benefit in excess of permanent physical impairment, a claimant must first prove, by a preponderance of the evidence, that he or she sustained permanent physical impairment as a result of a compensable injury. Wal-Mart Stores, Inc. v. Connell, 340 Ark. 475, 10 S.W.3d 727 (2000). The Commission is charged with the duty of determining disability based upon a consideration of medical evidence and other matters affecting wage loss, such as the claimant's age, education, and work experience. Emerson Elec. v. Gaston, supra.

However, so long as an employee, subsequent to his injury, has returned to work, has obtained other employment, or has a bona fide and reasonably obtainable offer to be employed at wages equal to or greater than his average weekly wage at the time of the accident, ··²SDU_5²····²SDU_5²··he or she shall not be entitled to permanent partial disability benefits in excess of the percentage of permanent physical impairment established by a preponderance of the medical testimony and evidence. Ark. Code Ann. § 11-9-522(b)(2) (Repl. 2002). The employer or its workers' compensation insurance carrier has the burden of proving the employee's employment, or the employee's receipt of a bona fide offer to be employed, at wages equal to or greater than his average weekly wage at the time of the accident. Ark. Code Ann. § 11-9-522(c)(1). In considering factors that may affect an employee's future earning capacity, the appellate court considers the claimant's motivation to return to work, since a lack of interest or a negative attitude impedes the court's assessment of the claimant's loss of earning capacity. Emerson Elec. v. Gaston, supra.

Appellant's brief quotes several conclusions from the ALJ's opinion related to appellant's education and work experience as a handler and courier for appellee, as well as details of the job returned to by appellant after the injury. He relies on these findings as a basis for his argument;however, we review the decision of the Commission and not that of the administrative law judge. Daniels v. Affiliated Foods Southwest, 70 Ark. App. 319, 17 S.W.3d 817 (2000).

Appellant testified that, as opposed to his full-time courier position, the permanent part-time dispatcher position that he had been assigned to upon his return was only for 17.5 hours per week. Additionally, he stated that he had been able to pick up extra hours only because some co-workers had taken vacation or sick leave. He claims that his "titled" position puts him in a circumstance of earning approximately one-half of his "guaranteed" wages, and that the ALJ based her decision on that fact. He maintains that appellees' own witness, appellant's supervisor, corroborated the testimony; and that the ALJ considered that factor along with appellant's age, education, and work experience to determine the appropriate percentage of wage-loss disability.

Appellant claims that the Commission overlooked the long-standing precedent of relying on the well-established "wage-loss disability factors" and relied solely upon a mathematical formula to determine the entitlement to wage-loss disability. The Commission reviewed the pre-injury and post-injury payroll records, specifically the average weekly gross pay. The Commission found that:

[t]he evidence in this case demonstrates that at the time of the hearing the claimant had returned to work at an average weekly wage equal to or greater than that which he was earning at the time of his accident. Prior to his injury the claimant's average weekly gross was $518.64; after the injury it was $688.36. The respondents have met their burden of proof as required by Ark. Code Ann. § 11-9-522(C)[sic]. It would require conjecture and speculation to conclude that the claimant's wages will decrease in the future. Conjecture and speculation, even if plausible, cannot take the place of proof. Ark. Dept. of Correction v. Glover, 35 Ark. App. 32, 812 S.W.2d 692 (1991). Dena Construction Co. v. Herndon, 264 Ark. 791, 575 S.W.2d 155 (1970).

Appellant claims that the Commission erred in relying only upon the mathematical formula, and claims that this court has reversed decisions for this very reason. He cites Curry v. Franklin Electric, 32 Ark. App. 168, 798 S.W.2d 130 (1990), for the proposition that all wage-loss factors must be considered in making the determination.

Appellee maintains that Curry, supra, is of little value in this case. It is a pre-1993 case, and strict construction, pursuant to Ark. Code Ann. § 11-9-522(b)(2), now provides that where appellant "has returned to work, . . . at wages equal to or greater than his average weekly wage at the time of the accident, he shall not be entitled" to wage-loss benefits. Secondly, the Commission in Curry did not inquire into the appellant's ability to work but based its decision on the receipts of social security benefits received. Here, appellant is able to work and is working, has earned more wages following the accident than he did before, and has not received governmental assistance as in Curry.

Appellant contends that under the Commission's decision, he is simply left to hope that his co-workers continue to require sick and vacation leave so that he can sit at home by the telephone and wait for appellee to call him to fill in so that his part-time hours will be raised sufficiently to meet his previous income. However, all the evidence compiled as of the time the briefs were written shows that appellant actually earned more after he returned to work following his injury. Arkansas Code Annotated § 11-9-522(b)(2), which must be strictly construed, mandates that where appellant "has returned to work, . . . at wages equal to or greater than his average weekly wage at the time of the accident, he shall not be entitled" to wage-loss benefits. The burden of proving that appellant earned higher wages after returning to work rests with appellee pursuant to Ark. Code Ann. § 11-9-522(c)(1). The requirements of each of these sections are clear, and both apply to the instant case.

Appellee discounts appellant's argument that at some time in the future, he may not be able to work as many hours, as well as the testimony of Ground Operations Manager Steve Baker regarding his informing the dispatch workers that part-time employees' hours would be reduced to seventeen and a half hours per week. The evidence shows that appellant continued working many hours above that with no indication, beyond speculation and conjecture, that a reduction in hours was forthcoming. Appellant requests more hours than the other two part-time dispatchers, performswell according to his evaluations, continues to earn pay increases and maintain his present hours, and consequently earns more than he did prior to his injury.

We note that appellant's current earning status is not a permanent bar to his entitlement to wage-loss benefits. See Belcher v. Holiday Inn, 43 Ark. App. 157, 868 S.W.2d 22 (1993); Ark. Code Ann. § 11-9-522(d) (providing for reconsideration based on changed circumstances). If at some point appellant's hours are in fact scaled back to such extent that he earns less that he did prior to the injury, he can reassert his claim.

Viewing the evidence in the light most favorable to the Commission's findings, the record supports the finding that appellant did not prove his entitlement to benefits by a preponderance of the evidence as he was averaging a higher weekly-pay rate than before the injury. The Commission was required to base its decision on the evidence before it and not speculation as to what may or may not occur in the future. Accordingly, there is a substantial basis for the denial of benefits.

Affirmed.

Baker and Roaf, JJ., agree.