Bowmaster v. City of Jacksonville

2016 Ark. App. 572, 507 S.W.3d 526, 2016 Ark. App. LEXIS 600
CourtCourt of Appeals of Arkansas
DecidedNovember 30, 2016
DocketCV-16-173
StatusPublished
Cited by1 cases

This text of 2016 Ark. App. 572 (Bowmaster v. City of Jacksonville) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bowmaster v. City of Jacksonville, 2016 Ark. App. 572, 507 S.W.3d 526, 2016 Ark. App. LEXIS 600 (Ark. Ct. App. 2016).

Opinion

PHILLIP T. WHITEAKER, Judge

| Appellant Jason Bowmaster appeals a decision of the Arkansas Workers’ Compensation Commission (“Commission”), which concluded that he was not entitled to a permanent impairment rating for dys-phasia or for an alleged traumatic-brain or closed-head injury; that he was entitled to a wage-loss disability rating of only 50 percent; and that the appellees (collectively referred to as “the City”) were entitled to an offset for disability-retirement benefits paid to him by the Arkansas Local Police and Fire Retirement System (“LOPFI benefits”). After considering the record before us, we reverse and remand as to the Commission’s determination of Bowmaster’s impairment and wage-loss ratings and affirm as to the offset of LOP-FI benefits.

|⅞1. Impairment and Wage-Loss Ratings

The Commission, .in its de novo review, reversed the decision of the Administrative Law Judge (ALJ) and found that Bowmaster had failed to prove a brain injury or dysphasia and set his impairment rating at 22 percent (2 percent for right femur, 3 percent for right knee, 8 percent for left knee, 6 percent for left shoulder, and 3 percent for pelvis). The Commission further found that Bowmaster was entitled to a wage-loss benefit of '50 percent. Bow-master filed a timely notice of appeal from the Commission’s opinion, which is now before this court. Bowmaster contends that the Commission exceeded its authority when it found that he had not sustained a brain injury or dysphasia. He ' argues that only the degree of impairment, not the existence of an injury, was in dispute. We agree. A review of the facts and the procedural history is important to an understanding of our conclusion.

On March 19, 2012, Bowmaster suffered multiple compensable injuries when he was intentionally run over by a van while working as a firefighter for the City of Jacksonville. The City initially accepted compensability and paid medical and temporary total-disability benefits 1 to Bow-master. Bowmaster and the City were not able to reach an agreement on the issues of permanent partial disability, permanent and total disability or wage loss, attorney’s fees, and offset of benefits. These issues proceeded to a hearing before the ALJ.

The ALJ issued two prehearing orders relating to the issues to be litigated between Bowmaster and the City. In the first order, the ALJ listed the following stipulations of the parties:

|sThe parties stipulated to an employee-employer-carrier relationship on March 19, 2012, at which time the claimant sustained multiple compensable injuries at a compensable rate of $546.00/ $410.00. Medical expenses, total temporary disability benefits until the end of the healing period. (September 25, 2013) and anatomical impairment totaling 22% (14% brain, 7% knee, 2% shoulder) have been accepted.

The order listed the issues to be litigated as “additional anatomical impairment (for the hip and brain); permanent total disability or wage loss; attorney’s fees; offset of benefits, Ark. Code Ann. § 11-9-411, and contempt.” In the second order, the ALJ once again designated the issues to be litigated as “anatomical impairment (hip and brain); wage loss, controversions; attorney’s fees; fund liability; and contempt; offset of LOPFI benefits.” The order directed the parties to advise the Commission, in writing, of any corrections or additions within ten days. Neither party did so.

Bowmaster and the City proceeded to a hearing on the issues set forth in the two prehearing orders. At the beginning of the hearing, the ALJ noted that the issues to be resolved at the hearing were “anatomical impairment of the hip and brain, wage loss, attorney’s fees, Fund liability, contempt and an offset of benefits.” Counsel for the City agreed with the ALJ’s assessment. Concerning the anatomical impairment ratings, counsel for Bowmaster, however, asked for some clarification of the issues, and the following colloquy occurred:

Counsel FOR Bowmaster: No, Your Honor, I just wanted to make sure that we were clear on what ratings we are fighting over, I guess.
ALJ: Okay.
Counsel for Bowmaster: The differences I see is the left shoulder with the 6% from Rosenzweig, a 29% for the head injury. And then, let’s see, [the City] accepted 2% to the left shoulder, U% to the head.
14ALJ: Do you want to respond?
Counsel for the City: Your Honor, I think the second paragraph of the contentions set forth [our] contentions with respect to anatomical impairment.

(Emphasis added.)

After the hearing, the ALJ found that, based on the evidence before it, Bowmas-ter was entitled to a 49 percent impairment rating to the body as a whole, which included an impairment of 29 percent for a closed-head injury and 10 percent for dys-phasia. The ALJ further found that, while Bowmaster had failed to prove that he was permanently and totally disabled, he had proved wage loss of 70 percent. The City appealed the AL J’s decision as it pertained to “the claim of anatomical impairment” and “the extent of wage loss disability.” Bowmaster cross-appealed the ALJ’s decision that he was not permanently and totally disabled.

From the record before us, the City accepted an anatomical impairment rating totaling 22 percent. Within this impairment rating, the City specifically accepted 14 percent as relating to the brain. The ALJ then listed the 22 percent rating, including the 14 percent as relating to the brain, as a stipulation of parties. At no point in its multiple prehearing questionnaires did the City ever expressly dispute Bowmaster’s claim that he had suffered a brain injury or dysphasia. Rather, the pre-hearing responses submitted by the City and the uncontested issues listed in the prehearing orders filed by the ALJ indicate that the only disagreement between the parties was the extent of those injuries and the additional anatomical rating for permanent impairment, if any, that should be given. The ALJ stated in | Sits remarks prior to the hearing and then in its written opinion that the issues to be resolved related to whether Bowmaster had sustained additional anatomical impairment. At no time did the City voice its disagreement with the scope of the issues to be presented at the hearing or affirmatively represent to the ALJ that it was disputing the existence of the injury itself. It is abundantly clear that the only issue before the Commission with regard to Bowmaster’s brain injury and dysphasia was the amount of additional impairment, if any, to which he was entitled.

Arkansas Code Annotated section 11—9— 711(b)(4)(A) (Repl. 2012) gives this court the authority to reverse the Commission’s decision if the Commission acts without or in excess of its powers. The Commission, by deciding an issue not in dispute and not properly before it, acted in excess of its powers. Accordingly, we reverse and remand for the Commission to assess what, if any, additional impairment rating should be assigned to those injuries.

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Bluebook (online)
2016 Ark. App. 572, 507 S.W.3d 526, 2016 Ark. App. LEXIS 600, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bowmaster-v-city-of-jacksonville-arkctapp-2016.