Taggart v. Mid Am. Packaging
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ARKANSAS COURT OF APPEALS
DIVISION III
No. CA 08-1303
MARTHA TAGGART
Opinion Delivered
April 29, 2009
APPELLANT
APPEAL FROM THE WORKERS’
COMPENSATION COMMISSION
[NO. F406472]
V.
MID AMERICA PACKAGING and
CONTINENTAL CASUALTY
COMPANY
APPELLEES
REVERSED AND REMANDED IN
PART; AFFIRMED IN PART
M. MICHAEL KINARD, Judge
In this workers’ compensation case, Martha Taggart appeals from the Commission’s
decision awarding her wage-loss benefits in the amount of twenty percent. She raises two
points on appeal: (1) The amount of wage-loss benefits awarded by the Commission is
insufficient; (2) The Commission erred in reversing its original order awarding her
attorney fees as the prevailing party on appeal. Because we find merit in appellant’s wageloss argument, we reverse and remand the case for proceedings consistent with this
opinion. We affirm on appellant’s second point.
Appellant Martha Taggart began working for the employer, which is now known
as Delta Natural Kraft, in 1977 and was terminated in 2005. She held various positions
with the employer over the years. On December 31, 2003, she was working as a senior
boiler operator when she sustained injuries to her back and right knee as the result of
tripping and falling over a drain cover. Appellant continued to work until May 2, 2004.
Working as a boiler operator required, among other things, walking, climbing ladders and
stairs, and occasionally shoveling, climbing on top of rail cars, and crawling inside of
boilers.
Appellant saw several different doctors for the treatment of her injuries, and she was
unable to obtain a release allowing her to return to work without restrictions. In a letter
from her employer dated August 1, 2005, appellant’s employment was terminated because
she had been on medical leave for over a year and the company did not have a job
available within her physical limitations. In April 2005, appellant received a two-percent
impairment rating for the lower right extremity 1 from Dr. Mulhollan. In August 2005,
Dr. Moore assigned appellant a rating of seven-percent permanent partial impairment to
the body as a whole for her lumbar spine injury, which he diagnosed as a lumbar HNP
L3/4.
Appellees accepted these impairment ratings, and appellant was paid some
temporary total disability and permanent partial disability benefits.
At the time of appellant’s injury, she was earning $24.72 per hour and working a
significant amount of overtime. Company records reflect that from June 6, 2003, through
December 26, 2003, she earned $37,931.70.
For the period from January 2, 2004,
through June 11, 2004, she earned $29,789.37, for a total of $67,721.07 for the period
from June 6, 2003, through June 11, 2004.
At the time of the hearing before the
administrative law judge, appellant was studying for her associate’s degree and earning
1
As a scheduled injury, appellant’s knee injury does not give rise to wage-loss disability because it was not found to
be permanently and totally disabling. See Ark. Code Ann. § 11-9-521 (Repl. 2002); Taylor v. Pfeiffer Plumbing &
Heating Co., 8 Ark. App. 144, 648 S.W.2d 526 (1983).
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$5.15 per hour teaching children to read at a public elementary school.
twenty hours per week.
She worked
She testified that she had applied for jobs with the Arkansas
Department of Human Services and with Wal-Mart, without success. Her plan was to
obtain a bachelor’s degree from the University of Arkansas at Pine Bluff and ultimately to
obtain a master’s degree in social work. She testified that, according to her research, she
could expect to make from $28,000 to $35,000 per year as a social worker. Additionally,
appellant’s disability insurer2 provided a list of sedentary occupations that she would be
capable of performing.
The annual salaries for these jobs ranged from approximately
$32,590 to $34,620.
Appellant had a functional capacity evaluation (FCE) on January 27, 2005. The
report stated that appellant gave an unreliable effort, with her pain rating not correlating
with her outward indicators of pain and her self-perceived abilities not correlating with her
actual abilities. Overall, she demonstrated the ability to work at least at the “light” work
category over the course of an eight-hour day. Appellant underwent a second FCE on
June 20, 2005. The results again demonstrated an unreliable effort on appellant’s part, but
the ability to perform work at least at the “light” category.
The issues litigated before the administrative law judge (ALJ) were appellant’s
entitlement to additional temporary total disability benefits from April 25, 2005, through
July 25, 2005, and appellant’s entitlement to wage-loss benefits.
In an opinion filed
August 8, 2007, ALJ found that appellant was entitled to twenty-percent wage loss
2
Appellant’s disability insurer, Jefferson Pilot Financial, paid her long-term disability from October 2004 through
October 2006, when it determined that she did not meet the definition of “totally disabled” beyond her “own
occupation period.” This was a policy that appellant purchased and paid for herself.
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disability benefits as a result of her compensable low back injury over and above her
physical permanent impairment. In explaining this finding, the ALJ wrote:
The claimant is only age 54 and has taken a number of college-level studies. She
has completed 24 or more hours toward her degree in Social Work and intends to
pursue a Master’s Degree. While her work history primarily involves industrial
work, the preponderance of the evidence demonstrates that the claimant has
reached maximum medical improvement and is capable of performing at least light
duty work and should be able to secure steady employment. However, the
evidence demonstrates that she will not be able to return to her prior work as a
boiler operator or similar work due to the limitations and restrictions that have
been placed on her due to her back injury by her treating physician. While the
claimant is currently attending a full schedule of classes and working a part-time
job, the evidence demonstrates that she will have difficulty in replacing her wages at
the level before her injury.
In an opinion filed August 27, 2008, the Full Commission affirmed and adopted the
ALJ’s decision, with one Commissioner dissenting in part. When the Commission adopts
the conclusions of the ALJ, as it is authorized to do, this court considers both the decision
of the Commission and the decision of the ALJ. See Death & Perm. Disability Trust Fund v.
Branum, 82 Ark. App. 338, 107 S.W.3d 876 (2003).
Under our substantial-evidence
standard of review, we must affirm if fair-minded persons with the same facts before them
could have reached the Commission’s conclusion. Ellis v. J.D. & Billy Hines Trucking, Inc.,
104 Ark. App. 118, __ S.W.3d __ (2008). For her first point on appeal, appellant argues
that the award of twenty-percent wage loss is not supported by substantial evidence and
that the award should have been higher. We agree.
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). The Commission is charged with the duty of determining disability
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based upon a consideration of medical evidence and other matters affecting wage loss, such
as the claimant’s age, education, and work experience. Eckhardt v. Willis Shaw Exp., Inc.,
62 Ark. App. 224, 970 S.W.2d 316 (1998). Objective and measurable physical or mental
findings, which are necessary to support a determination of “physical impairment” or
anatomical disability, are not necessary to support a determination of wage-loss disability.
Arkansas Methodist Hosp. v. Adams, 43 Ark. App. 1, 858 S.W.2d 125 (1993).
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 882 (2000). Other matters to be considered are
motivation, post-injury income, credibility, demeanor, and a multitude of other factors.
Glass v. Edens, 233 Ark. 786, 346 S.W.2d 685 (1961); Curry v. Franklin Electric, 32 Ark.
App. 168, 798 S.W.2d 130 (1990); City of Fayetteville v. Guess, 10 Ark. App. 313, 663
S.W.2d 946 (1984). The Commission may use its own superior knowledge of industrial
demands, limitations, and requirements in conjunction with the evidence to determine
wage-loss disability. Oller v. Champion Parts Rebuilders Inc., 5 Ark. App. 307, 635 S.W.2d
276 (1982).
In this case, the ALJ appears to have considered many–but not all–of the relevant
factors. In considering wage loss, the ALJ referenced appellant’s age, education, current
job, future career plans, motivation to return to full-time employment, and her post-injury
income. Significantly, appellant’s pre-injury income was not addressed beyond a general
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finding that appellant “will have difficulty in replacing her wages at the level before her
injury.” The amount of appellant’s pre-injury wages was not contested. In the “Factual
Background” section the ALJ states that at the time of her work-related injury, appellant
was making $67,721.07 during the period from June 6, 2003, to June 11, 2004. It appears
that the ALJ (and thus, the Commission) failed to properly consider these pre-injury
earnings when determining the amount of appellant’s wage-loss disability. The evidence
in the record clearly shows that the most appellant would be able to make as a social
worker or in one of the sedentary jobs found by the disability insurer was $35,000 per
year, an amount significantly less than appellant’s pre-injury earnings.
While we
acknowledge that there is no formula for determining wage loss, this record simply does
not support a finding that appellant’s wage-loss disability was no more than twenty
percent. We hold that substantial evidence does not support an award of only twentypercent wage-loss disability. Accordingly, we reverse and remand this case for further
proceedings consistent with this opinion, taking into consideration appellant’s wages
during the period from June 6, 2003, to June 11, 2004.
As her second point on appeal, appellant argues that “the Commission’s decision to
take away claimant’s attorney’s fee for being ‘successful’ on appeal should be reversed.” In
its order filed August 27, 2008, the full Commission not only affirmed and adopted the
ALJ’s decision in this case, it also awarded appellant’s attorney an additional attorney’s fee
in the amount of $500 in accordance with Ark. Code Ann. § 11-9-715(b) (Repl. 2002),
for prevailing in the appeal. Appellees filed a petition for reconsideration of the attorney’s
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fee award, alleging that the award was not merited because appellant did not prevail on
appeal. In an opinion filed October 3, 2008, the Commission ordered that appellant’s
attorney should not receive the $500 previously awarded.
Arkansas Code Annotated section 11-9-715 (Repl. 2002) provides, in pertinent
part:
(b)(1) If the claimant prevails on appeal, the attorney for the claimant shall
be entitled to an additional fee at the full commission and appellate court levels in
addition to the fees provided in subdivision (a)(1) of this section.
Accordingly, the issue before this court is whether the Commission erred when it held
that appellant (the claimant) did not prevail on appeal to the Full Commission and thus
should not be awarded attorney fees. In this case, it was appellant who appealed to the
Full Commission, which affirmed and adopted the opinion of the ALJ. Appellees (the
respondents) did not cross-appeal any issue.
Because we believe substantial evidence
supports the Commission’s finding that appellant did not prevail on appeal to the Full
Commission, we affirm on this point.
Reversed and remanded in part; affirmed in part.
R OBBINS and B AKER, JJ., agree.
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