Deutscher v. Aluminum Co. of Am.
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Cite as 2009 Ark. App. 152 (unpublished)
ARKANSAS COURT OF APPEALS
DIVISION III
No.
CA08-669
BRUCE DEUTSCHER,
Opinion Delivered 4
MARCH 2009
APPELLANT
APPEAL FROM THE ARKANSAS
WORKERS’ COMPENSATION
COMMISSION [NO. E813422]
V.
ALUMINUM COMPANY OF AMERICA
and COMPENSATION MANAGERS,
INC.,
APPELLEES
REVERSED AND REMANDED
D.P. MARSHALL JR., Judge
This workers’ compensation case is about Bruce Deutscher’s entitlement to wage-loss
disability benefits. Deutscher, a thirty-four year employee of Aluminum Company of
America (ALCOA), hurt his lower back in 1998 while attempting to raise an elevator door
at work. ALCOA accepted the injury as compensable and paid for benefits, including back
surgery and a fifteen-percent permanent impairment rating. In 2003, Deutscher retired from
ALCOA. He eventually sought wage-loss disability benefits, which ALCOA refused to pay.
After a hearing, the administrative law judge determined that Deutscher failed to prove that
he was entitled to those benefits. The Commission affirmed. Deutscher appeals, and we
reverse and remand for findings, consideration of medical evidence, and clarification of a
legal issue.
The Commission had the duty of determining Deutscher’s entitlement to wage-loss
disability based upon the consideration of the medical evidence and other factors affecting
his future earning capacity, such as his age, education, and work experience. Johnson v.
Latex Construction Co., 94 Ark. App. 431, 436, 232 S.W.3d 504, 509 (2006). The ALJ’s
opinion—which the Commission affirmed and adopted—denied Deutscher’s claim, stating
that “[w]hen the entire record is reviewed, the preponderance of the evidence shows that the
claimant has, indeed, suffered a diminution in his ability to earn a living, but not in excess
of the level of his anatomical impairment, which the parties agreed is 15% to the body as a
whole.”
This opinion lacks findings of fact upon which the Commission relied to support its
legal conclusion. Wright v. American Transportation, 18 Ark. App. 18, 22, 709 S.W.2d 107,
110 (1986). Because of the lack of findings, we are unable to determine whether the
Commission appropriately considered the wage-loss factors. Bradley v. Alumax, 50 Ark.
App. 13, 15, 899 S.W.2d 850, 851 (1995). We are also unable to determine whether the
Commission considered a vocational specialist’s testimony that Deutscher’s probable wages,
should he return to work, would be significantly lower than his average weekly wage prior
to his back injury. Absent these essential findings, we are unable to conduct a meaningful
appellate review. Wright, 18 Ark. App. at 20–22, 709 S.W.2d at 109–10. We therefore
reverse and remand.
We remand for a second reason. In evaluating wage-loss, the Commission arbitrarily
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disregarded medical evidence. It may not do this. Freeman v. Con-Agra Frozen Foods, 344
Ark. 296, 40 S.W.3d 760 (2001). Following Deutscher’s 2003 back surgery, both Dr. Jim
Moore and Dr. Mark Martindale indicated in their medical records that he was unable to reenter the workforce. The Commission’s opinion does not address these doctors’ medical
records or opinions. Though the Commission has the authority to accept or reject medical
opinions, it may not arbitrarily disregard medical evidence in evaluating Deutscher’s
entitlement to wage-loss disability. Coleman v. Pro Transp., Inc., 97 Ark. App. 338, 347–50,
249 S.W.3d 149, 155–59 (2007).
One final point. There is an embedded legal issue that, though Deutscher touches
upon it, the parties do not squarely address in their appeal briefs. The Commission held that
Deutscher “has, indeed, suffered a diminution in his ability to earn a living, but not in excess
of [his 15%] anatomical impairment . . ..” The Commission’s opinion could be read to say
that, in determining wage loss, an employer gets a direct loss-of-earning-capacity credit for
the employee’s percentage of anatomical impairment. We are not convinced that this
interpretation of the law is correct.
An injured employee is entitled to payment for his anatomical impairment whether his
earning capacity is diminished or not. Johnson v. General Dynamics, 46 Ark. App. 188, 192,
878 S.W.2d 411, 412 (1994). Thus when Deutscher’s doctor assigned him a fifteen-percent
rating, it was for permanent functional impairment, regardless of any diminution in his future
earning capacity. But that impairment was also one factor, along with Deutscher’s age,
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education, and work experience, that the Commission had to consider in determining his
entitlement to wage-loss benefits. Ark. Code Ann. § 11-9-522(b)(1) (Repl. 2002); Bradley,
50 Ark. App. at 15, 899 S.W.2d at 851. We do not read the statute or cases to suggest that
Deutscher’s impairment rating translates into a straight credit for some amount of loss of
earning capacity. The Commission must consider all of the relevant factors in determining
Deutscher’s entitlement to wage-loss disability—the extent to which his injury has affected
his ability to earn a living. Johnson, 94 Ark. App. at 436, 232 S.W.3d at 509 (2006).
Reversed and remanded.
R OBBINS and B ROWN, JJ., agree.
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