Douglas Smith v. Hajoca Corporation and Travelers Insurance Company
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DIVISION IV
ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
S AM B IRD, Judge
DOUGLAS SMITH
APPELLANT
CA06-592
D ECEMBER 20, 2006
APPEAL FROM THE WORKERS’
COMPENSATION COMMISSION
[NO. E902248]
V.
HAJOCA CORPORATION and
TRAVELERS INSURANCE COMPANY
APPELLEES
AFFIRMED
Appellant Douglas Smith sustained a compensable injury to his lower back on
February 8, 1999, while moving heavy steel valves during his work as a truck driver for
appellee Hajoca Corporation. He underwent two surgeries as the result of this injury. Hajoca
paid all temporary total disability benefits and accepted an eleven-percent whole-body
impairment rating, but it controverted permanent disability in excess of the impairment
rating. This issue came before the administrative law judge for a hearing on February 24,
2005.
The law judge found that wage loss in the amount of eleven percent over and above
the eleven-percent impairment rating was reasonable. The law judge’s written opinion
included the following:
This additional rating for wage loss is based upon the claimant’s education, age,
transferrable job skills and his physical impairment and limitations. The claimant has
a life history of being an over the road truck driver. The claimant’s functional capacity
evaluator estimated that the claimant would not be able to return to his former job of
truck driving and recommended that he do only sedentary type work with lifting of
no more than eight pounds and at a job where he would be able to sit or stand as
needed.
The law judge ruled that the eleven-percent wage loss and the eleven-percent impairment
rating entitled Smith to a disability rating of twenty-two percent to the body as a whole. In
a decision of February 3, 2006, the Workers’ Compensation Commission affirmed and
adopted the law judge’s decision.
Smith raises one point on appeal, contending that the Commission erred in
determining that he sustained only an eleven-percent wage-loss disability when his functional
capacity evaluation showed that he was no longer physically able to perform the job duties
of his former employment. We affirm the Commission’s decision.
Arkansas Code Annotated § 11-9-522(b)(1) (Repl. 2002) states the following:
In considering claims for permanent partial disability benefits in excess of the
employee’s percentage of permanent physical impairment, the Workers’
Compensation Commission may take into account, 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.
Pursuant to this statute, when a claimant has been assigned an anatomical impairment rating
to the body as a whole, the Commission has the authority to increase the disability rating, and
it can find a claimant totally and permanently disabled based upon wage-loss factors. Lee
v. Alcoa Extrusion, Inc., 89 Ark. App. 228, 201 S.W.3d 449 (2005). When a claim is denied
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because the claimant has failed to show an entitlement to compensation by a preponderance
of the evidence, the substantial-evidence standard of review requires us to affirm if the
Commission’s opinion displays a substantial basis for the denial of relief. Id.
Smith contends on appeal that he was entitled to wage-loss greater than that assigned
by the Commission. Hajoca Corporation agrees with Smith that his compensable injury
resulted in loss of his previous employment and in lingering physical problems and major
physical limitations; however, Hajoca asserts that there exists the possibility of sedentary
employment, which Smith has not investigated for five years.
Smith relies upon the following evidence, which was before the Commission. Smith
was forty-three years old at the time of the hearing, had a high school education, and had
been a truck driver for most of his adult life. His functional capacity evaluation established
that he was no longer able to perform the duties of a truck driver, and he agreed with the
functional capacity evaluation’s lifting restrictions of less than ten pounds and the need to
alternate between sitting and standing. He testified that he had also worked in the past with
heavy equipment, but that such work required bending, pulling, prying, and heavy lifting that
were beyond the limitations of the evaluation. He testified that he was taking medication
several times a day, that his pain interfered with his ability to sleep, that he had problems
with walking, and that he could not go eight hours at a time without needing to lie down.
The functional capacity evaluation indicated that he gave full physical effort and that his
reported pain level was higher after the evaluation than before. Smith’s wife testified that
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he could not complete yard work because of pain; that he was formerly very active and a
workaholic but no longer could carry more than a little bit of laundry at a time; and that his
condition significantly worsened when his medications ran out.
Smith asserts that there is no evidence that he has any transferrable skills because his
former jobs were limited to truck driving and heavy-equipment work. He argues that any
employment he might hope to obtain would likely be at minimum wage and that there is no
evidence that he could perform meaningful employment on any sustained basis.
He
concludes that he is totally and permanently disabled, or, alternatively, that he is disabled to
an extent that greatly exceeds the eleven-percent wage-loss disability awarded by the
Commission.
“Permanent total disability” is the inability, because of compensable injury or
occupational disease, to earn any meaningful wages in the same or other employment. Ark.
Code Ann. § 11-9-519(e)(1) (Repl. 2002). The wage-loss factor is the extent to which a
compensable injury has affected the claimant’s ability to earn a livelihood. Lee, supra. In
making this determination, the Commission may consider factors such as a claimant’s lack
of motivation to return to work or failure to attempt to seek work. Sapp v. Phelphs Trucking,
Inc., 64 Ark. App. 221, 984 S.W.2d 817 (1998).
The Commission noted Smith’s testimony about the possibility of employment after
he sustained his compensable injury. He testified that he had not worked or looked for work
since 2000 because he did not feel that he could do anything. He stated that he had done
some telephone work and light-duty work while volunteering at the Red Cross. He also said
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that he had not investigated rehabilitation or retraining after 2003, after initially being
interested in home inspections but later deciding that he could not do the required crawling
in attics and under houses. We hold that the Commission’s decision displays a substantial
basis for denying Smith’s claim of wage-loss disability in excess of eleven percent.1
Affirmed.
H ART and G RIFFEN, JJ., agree.
1
Although the dissenting member of the Commission argued that the appellant is
entitled to permanent disability benefits based on an income replacement approach,
permanent disability benefits have always been awarded to compensate for the diminution
in wage-earning capacity.
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CA06-592
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