Hank Stell v. Pippen & Sons Contracting and Zurich Group Insurance

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ca03-906

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION I

HANK STELL

APPELLANT

V.

PIPPEN & SONS CONTRACTING ZURICH GROUP INSURANCE

APPELLEES

CA03-906

March 3, 2004

APPEAL FROM THE ARKANSAS WORKERS' COMPENSATION COMMISSION

[NO. E807755]

AFFIRMED

Josephine Linker Hart, Judge

Appellant, Hank Stell, argues on appeal that the Arkansas Workers' Compensation Commission's award of a 10% wage-loss disability benefit to him was "arbitrary and capricious and clearly against the preponderance of the evidence" because the award was grossly inadequate for the disability suffered. As we conclude that the Commission's award was supported by substantial evidence, we affirm.

As an initial matter, we note that appellant's argument is premised on the wrong standard of review. He asserts that we should conclude that the Commission's decision was "arbitrary and capricious," which he contends is a "less demanding standard than the requirement that it be supported by substantial evidence...." Contrary to appellant's assertion, we view the evidence in the light most favorable to the Commission's decision and affirm the decision when it is supported by substantial evidence. Golden v. Westark Cmty. College, 333 Ark. 41, 969 S.W.2d 154 (1998). Evidence is substantial if reasonable minds could reach the same conclusion. Id. We will not reverse unless fair-minded persons considering the same facts could not have reached the same conclusion. Id. Applying the proper standard of review, we affirm.

The wage-loss factor is the extent to which a compensable injury has affected the claimant's ability to earn a livelihood. Wal-Mart Stores, Inc. v. Connell, 340 Ark. 475, 10 S.W.3d 882 (2000). Our statutes provide that "[i]n considering claims for permanent partial disability benefits in excess of the employee's percentage of permanent physical impairment," the Commission may consider, "in addition to the percentage of permanent physical impairment, such factors as the employee's age, education, work experience, and other matters reasonably expected to affect his or her future earning capacity." Ark. Code Ann. ยง 11-9-522(b)(1) (Repl. 2002). In considering factors that may affect an employee's future earning capacity, the court may examine the claimant's motivation to return to work, since a lack of interest or a negative attitude impedes our assessment of the claimant's loss of earning capacity. Emerson Elec. v. Gaston, 75 Ark. App. 232, 58 S.W.3d 848 (2001).

Appellant sustained a compensable back injury in a traffic accident in June of 1998, suffering a spinal fracture at L-1, and after undergoing surgery and physical therapy, he reached the end of his healing period in October of 1999 and was determined to have a 15% permanent physical impairment rating. Additional wage-loss disability, however, was controverted before the ALJ.

In the ALJ's decision, which was adopted by the Commission, the ALJ noted that appellant attempted to work for another employer following the injury, and after he was laid off from this position, appellant ultimately ceased looking for employment. The ALJ concluded that appellant's "lack of motivation certainly impedes the Commission's ability to determine the extent of his wage loss disability." The ALJ noted that appellant's anatomical impairment from his injury would preclude him from returning to his previous employment in heavy labor. Further, he observed that appellant was thirty-nine years old and had attended high school, but did not graduate, and possessed various job skills, including supervision and management positions. The ALJ also noted that, based on the appellant's testimony and the testimony from a vocational counselor, it was unlikely appellant could obtain employment at the same wage level he was earning prior to his injury. But the ALJ concluded that, considering appellant's relatively young age, his education, his prior work experience, and the nature and degree of his physical limitations, appellant sustained a 10% impairment to his wage-earning capacity.

Appellant challenges the amount of the wage-loss determination. He asserts that he has limited education, that his work skills are confined to heavy equipment operation and heavy labor, that he sustained a serious injury to his back, and that the injury to his back has severely limited or completely precluded his ability to return to work in any job for which he was previously qualified. He concludes that he should have received a wage-loss disability benefit of 66% or greater because he suffered a 66% reduction in the wages that he is qualified to earn due to his physical limitation. He reaches this conclusion by observing that he could only expect to earn approximately $11.00 an hour in light, sedentary work and that he had previously earned $25 an hour.

In response, appellees argue that appellant's argument is disingenuous because appellant was earning $25 an hour while he was working for a different employer at a different job at least six years prior to his compensable injury. Appellees note that appellant had not earned that amount for the six years prior to the compensable injury, and appellant testified that, at the time of the compensable injury, he was earning $10.50 an hour. Appellees further observe that the vocational counselor testified that there were several jobs in the area within his work restrictions and that these jobs ranged in hourly pay from $5.15 an hour to $11.50 an hour. Appellees also assert that appellant is not motivated to return to work.

While consideration of appellant's wage-earning history is relevant in our determination of claims for permanent partial disability benefits in excess of the employee's percentage of permanent physical impairment, it is not necessarily dispositive. Here, the Commission considered appellant's physical limitations, age, education, and previous work experience, and we cannot say that substantial evidence does not support the Commission's decision. Were we to increase the rating under these facts, we would simply be substituting our finding for that of the Commission, which we will not do.

Affirmed.

Crabtree and Roaf, JJ., agree.