Main v. McGehee Metals
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Cite as 2010 Ark. App. 585
ARKANSAS COURT OF APPEALS
DIVISION IV
No. CA10-111
Opinion Delivered
MICHAEL MAIN
APPELLANT
V.
McGEHEE METALS
APPELLEE
September 15, 2010
APPEAL FROM THE ARKANSAS
WORKERS’ COMPENSATION
COMMISSION
[No. F710770]
REVERSED IN PART; AFFIRMED IN
PART
LARRY D. VAUGHT, Chief Judge
Appellant Michael Main appeals a decision of the Arkansas Workers’ Compensation
Commission finding that he was not entitled to an additional anatomical-impairment rating
pursuant to Ark. Code Ann. § 11-9-521 (Repl. 2002). He also claims that the Commission
erred in its decision to allow his employer an offset for an advanced payment of compensation
as defined by Ark. Code Ann. § 11-9-807 (Repl. 2002). We affirm in part and reverse in part.
Main, who was born on October 23, 1968, has a high-school education. For
approximately eighteen years, he worked for McGehee Metals. His jobs ranged from
operating heavy equipment and ordering and selling parts to performing mechanic work. On
September 19, 2005, Main was shot during a robbery with a sawed-off shotgun armed with
three-inch, magnum-steel shot.1 He sustained injuries to his left arm and torso (chest, liver,
There is no dispute that on September 19, 2005, an employee-employer relationship
existed between Main and McGehee Metals. Furthermore, the parties agreed that on this date
he sustained a compensable injury at compensation rates of $320/$240. McGehee Metals also
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Cite as 2010 Ark. App. 585
and intestinal track), resulting in a prolonged hospitalization, numerous surgeries, posttraumatic-stress syndrome, and depression with psychotic (hallucinations) features. Dr. Charles
Mabry treated Main’s chest and abdomen, and Dr. John Lytle treated Main’s left elbow. Main
also received counseling at Southeast Arkansas Behavorial Healthcare from Drs. Sizemore,
Wooten, and Malik.
On August 24, 2007, Dr. Lytle assessed an eighty-eight percent impairment rating to
Main’s left arm based on nerve dysfunction, loss of the elbow joint, and loss of hand strength.
In his report, Dr. Lytle stated that Main had reached maximum medical improvement and
further stated:
I have recommended to Mr. Main that he have further surgery to stabilize his left
elbow.... He has restricted lifting of any weight with his left arm. He has no functional
use of the left arm or hand.... I have recommended effusion of the left elbow.
According to the ‘Guides to the Evaluation of Permanent Impairment,’ Fourth
Edition, as published by the American Medical Association, I see his permanent
impairment to the left arm to be a combination of the nerve dysfunction from the
complete transsection of the ulnar nerve above the elbow with injuries to the radial
nerve, combined with the loss of the elbow joint from massive trauma from gunshot
wound, and the loss of strength in his hand. The impairment due to the loss of motor
and sensory function of the ulnar nerve above mid forearm is 50 percent to the upper
extremity. This is rated according to table 15 page 54. The impairment due to the loss
of the elbow joint is 70 percent to the upper extremity and 42 percent to the person
as a whole according to table 18 page 58. The impairment due to the loss of strength
is computed to be a 45 percent strength index loss. According to table 34 page 65 is
a 20 percent upper extremity impairment. Using the combined value table on page
324 for each of these numbers this is equivalent to 88 percent to the upper extremity.
Using table three page 20. This is then equivalent to 53 percent to the person as a
whole. I have recommended to Mr. Main that he consider an arthrodesis of the elbow.
accepted responsibility for medical expenses and an eighty-eight percent impairment rating
to Main’s left arm, as assessed by Dr. Lytle (at the end of the healing period on August 24,
2007).
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I do not expect that this would alter his permanent impairment however certainly it
would make his daily life more functional.
According to Dr. Lytle’s December 25, 2008 report
Michael Main sustained a massive extraordinary wound to his [left] arm. He has
complete loss of function of the ulnar nerve and an unstable elbow joint. He can move
his index finger, long finger and thumb with limited amount of grip. This is not very
functional. I would say that his use of the arm is only slightly better than an
amputation. You have previously reviewed the permanent impairment rating and I feel
that this is accurate.
Main’s psychiatric records mention an incident where he was involved in a motorvehicle accident after the robbery (in 2006) and sought chiropractic care. Two medical reports
(and Main’s own testimony) stated that Main’s mental stress was exemplified by his reaction
to a back-firing vehicle. Dr. Wooten’s report of August 27, 2007, states that Main cannot
work and is unemployable. Main also testified that his left hand remains cold at all times and
that he developed post-traumatic-stress disorder (PTSD) as a result of the attack. He further
stated that he is unable to work based on the cumulative effect of the PTSD, the side effects
of medication, and his physical limitations.
On September 13, 2007, Main signed a Form AR-C, Claim For Compensation. He
contended that he was entitled to additional benefits, including additional temporary total and
temporary partial, additional permanent partial, additional medical expenses, rehabilitation,
attorney’s fees, child support, and “other.” In fact, Main, who has no legal training and was
unrepresented at the time, placed a check in every box.
The owner of McGehee Metals, Edward McGehee, is an eighty-two-year-old man
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who has been in the metal business for several decades. He testified that he was unaware of
changes in the law concerning the requisite number of employees needed to trigger
mandatory workers’ compensation insurance. However, after this incident, he consulted an
attorney and has remedied the situation by acquiring workers’ compensation insurance for his
employees.
Specifically, at the February 20, 2009 hearing, Edward McGehee was questioned by
his attorney:
Q. Did you have any kind of insurance on your business before Mr. Main’s
situation?
A. No....
Q. When he was hurt, did you realize you owed him some worker’s (sic)
compensation benefits?
A. Yeah, I knew I was going to have to pay worker’s (sic) comp sooner or
later.
Q. Okay. And did you pay for Mr. Main’s [sic] medical bills?
A. Paid all his medical bills, hospital and everything.
Q. Do you have any idea how much you have paid on medical bills?
A. It’s been over five hundred thousand dollars or more....That’s counting the
wages and everything.
Q. Okay. Alright. Now you paid Mr. Main, you continued paying him his
salary and that was four hundred and eighty dollars a week, is that right?
A. Yes sir.
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Q. [All right.] Did you consider that to be a gift to Mr. Main?
A. No, I didn’t consider it a gift, I figured I was going to have to pay it sooner
or later through workman’s comp.
Q. Okay, did you understand that under workman’s comp, you might have to
pay him less than four hundred and eighty dollars a week?
A. Well, I didn’t at first, I figured he needed the money and his wife was sick
too, so that’s why I paid it for a long time. Until they told me different....
Q. Did you know whether or not it was more than four hundred eighty dollars
a week or less than that four hundred and eighty dollars a week?
A. Less.
Q. And after you learned that it was less, did you continue to pay him four
hundred and eighty dollars a week?
A. For a while I did.
Q. Why did you do that?
A. Well, his wife had cancer and I thought I’d help him a little bit....
Q. Okay, so was the difference in what you owed him and what you were
paying him, was that a gift for Mr. Main?
A. No, it wasn’t a gift.
Q. What was it, what did you think it was?
A. I thought I was getting ahead a little on the worker’s [sic] comp....
Then, Edward McGehee was cross-examined by Main’s attorney:
Q. Did you ever tell him that this money you were paying him was an advance
payment of compensation?
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A. No sir.
In sum, McGehee testified he had paid Main’s medical expenses and continued his
salary because he knew that he would have to pay workers’ compensation “sooner or later.”
However, McGehee also testified he was trying to help Main financially because Main’s wife
was suffering from cancer. Of particular note is the fact that McGehee continued to pay
Main’s full salary for a time after he found out he owed only 66 2/3% of Main’s average
weekly wage. Furthermore, Main testified that there was never any discussion of “advanced
payments of compensation.” McGehee confirmed Main’s testimony on this topic. Main stated
that he knew McGehee did not have insurance and thought McGehee was continuing to pay
the full-salary amount to keep from getting in trouble with the law.2 Finally, McGehee also
testified that he approached Main about returning to work but Main declined his offer of light
duty.3 Main claimed that he had no use of his left arm and that his mental health—specifically
the PTSD—prevented him from returning to work. McGehee responded that he observed
Main splitting wood and using his left hand to steady the wood. Main denied this accusation.
For his first point on appeal, Main contends that the employer is not entitled to a credit
for the salary paid because there was no agreement that he was receiving an advance payment
of compensation. Main received his full salary ($480 weekly) until the end of 2007. On
Sanctions can be assessed against employers who fail to obtain workers’ compensation
coverage. Ark. Code Ann. § 11-9-401, § 11-9-406.
2
McGehee Metals obtained a release from Dr. Lytle but not from the mental-health
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clinic.
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January 1, 2008, McGehee Metals changed the payments to $213 a week. On December 20,
2008, the rate was adjusted to $240, and payments continued until February 20, 2009.
McGehee later conceded that the correct compensation rate was $240. However, it declined
to pay attorney’s fees on the error or make up the difference of $27 weekly. The employer
took the position that it had already overpaid the claim. According to Ark. Code Ann. § 119-807,
(a) If the employer has made advance payments for compensation, the
employer shall be entitled to be reimbursed out of any unpaid installment or
installments of compensation due.
(b) If the injured employee receives full wages during disability, he or she shall
not be entitled to compensation during the period.
Case law makes a distinction between “advance payments of compensation” and
payment of “benefits, wages and gratuities.” Southwestern Bell Tel. Co. v. Siegler, 240 Ark. 132,
398 S.W.2d 531 (1966). These cases usually involve payments from third parties (group
insurance, disability plans) that result in benefits that exceed a salary. Act 796 of 1993
addressed this issue in the offset provisions outlined in Ark. Code Ann. § 11-9-411. The
amount in excess of wages paid over the weekly compensation rate cannot be credited against
an award of future benefits unless both parties intended that the payments be compensation in
advance. Looney v. Sears Roebuck, 236 Ark. 868, 371 S.W.2d 6 (1963) (emphasis added);
Varnell v. Union Carbine, 29 Ark. App. 185, 779 S.W.2d 542 (1989).
In this case, the ALJ relied on these cases and concluded that the “employer’s reasons
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for continuing the claimant’s salary involved some gratuity as he was trying to help the
claimant’s family not only because of the claimant’s severe injuries but also because of his
wife’s illness.” But the Commission reversed that decision. The Commisssion noted Main’s
position that McGehee never mentioned the phrase “advance payment of compensation to
him,” but still concluded that “both parties knew Edward McGehee was making voluntary
advance payments of reasonably necessary medical treatment and indemnity benefits to the
claimant.” The Commission then ordered that McGehee be allowed an offset for the
overpayments.
For reversal, Main relies on Varnell, which holds:
When an employer continues to pay salary or wages to an injured employee during
any time of injury, and such payments are in excess of workmen’s compensation
benefits, then when a workmen’s compensation award is subsequently made, the
excess of the wages paid over the weekly compensation award cannot be deducted
from the award. The policy of employers to pay an injured employee the prevailing
wage scale while inactive during an injury period is in line with the modern concepts
of employer-employee relations and is to be encouraged, but the employer cannot
make such payments and later claim credit for the excess as against an award made.
Varnell, 29 Ark. App. at 191, 779 S.W.2d at 546.
In this case, there is no showing that both parties intended for the salary paid to be
advance payment of compensation. In fact, McGehee unequivocally testified that he never
informed Main that the money he was being paid was an advance payment of compensation.
To find otherwise requires conjecture and speculation, neither of which are permitted in this
analysis. Simply put, in order to receive an offset, McGehee had the burden to show that both
parties intended that the payment be an advance payment of workers’ compensation. The
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record before us shows no such proof. As such, we reverse the Commission on this point
because its decision is not supported by substantial evidence.
Next, Main contends that because he has no functional use of his injured arm and
hand4 the Commission’s finding that he is entitled to only an eighty-eight-percent impairment
rating is not supported by substantial evidence. “Permanent impairment” has been defined as
any permanent functional or anatomical loss remaining after the healing period has ended.
Johnson v. General Dynamics, 46 Ark. App. 188, 878 S.W.2d 411 (1994). Any determination
of the existence or extent of physical impairment shall be supported by objective and
measurable physical or mental findings. Ark. Code Ann. § 11-9-704(c)(1)(B).
The Commission has adopted the Guides to the Evaluation of Permanent Impairment
(4th ed. 1993), published by the American Medical Association for the assessment of
anatomical impairment. Ark. Code Ann. § 11-9-521(h); Workers’ Compensation Laws and
Rules, Rule 099.34. The Commission is authorized to decide which portions of the medical
evidence to credit and to translate this medical evidence into a finding of permanent
impairment using the AMA Guides. Avaya v. Bryant, 82 Ark. App. 273, 105 S.W.3d 811
(2003) (citing Polk County v. Jones, 74 Ark. App. 159, 47 S.W.3d 904 (2001)). The
Commission may assess its own impairment rating rather than rely solely on its determination
of the validity of ratings assigned by physicians. Id.
Here, the ALJ found that Main had no functional use of his arm and awarded him
This claim is based on the opinion tendered in Dr. Lytle’s report of August 24, 2007.
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additional benefits. The Commission reversed. In its reversal, the Commission relied on Dr.
Lytle’s August 24, 2007 report assigning Main an eighty-eight-percent impairment rating
pursuant to the AMA Guides. The Commission specifically noted that Dr. Lytle opined that
Main had restricted lifting with his left hand and, in a later report, noted that Main could
move his index finger, long finger, and thumb with some limited grip. The Commission also
relied on Main’s own words that he did have some functional use of his left arm. Based on
this evidence, the Commission found that Main had not suffered “permanent total loss of use
of a member” in accordance with Ark. Code Ann. § 11-9-521(e). Because the Commission
has the authority to determine permanent impairment, Pollard v. Meridian Aggregates, 88 Ark.
App. 1, 193 S.W.3d 738 (2004), and there is substantial evidence to support its finding, we
affirm on this point.
Reversed in part; affirmed in part.
PITTMAN and HART, JJ., agree.
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