Maulding v. Price's Utility Contractors, Inc.

358 S.W.3d 915, 2009 Ark. App. 776, 2009 Ark. App. LEXIS 945
CourtCourt of Appeals of Arkansas
DecidedNovember 18, 2009
DocketNo. CA 08-1449
StatusPublished
Cited by4 cases

This text of 358 S.W.3d 915 (Maulding v. Price's Utility Contractors, Inc.) 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
Maulding v. Price's Utility Contractors, Inc., 358 S.W.3d 915, 2009 Ark. App. 776, 2009 Ark. App. LEXIS 945 (Ark. Ct. App. 2009).

Opinion

M. MICHAEL KINARD, Judge.

|, Appellant Robert Maulding appeals from the Commission’s opinion affirming and adopting the decision of the administrative law judge (ALJ), who found that appellant is not permanently and totally disabled; that he is entitled to a ten-percent permanent anatomical impairment rating; that, for purposes of calculating appellant’s average weekly wages, appellant was not a full-time employee at the time of his injury; and that Cincinnati was entitled to a three-percent offset against future amounts owed for its previous overpayment of benefits. Appellees Price’s Utility Contractors, Inc. (Price’s Utility) and Cincinnati Indemnity Co. (Cincinnati) cross-appeal the ALJ’s findings that appellant sustained wage-loss disability in the amount of twenty-five percent and that the Second Injury Fund is not liable for the wage-loss benefits. Appellee Second Injury Fund (SIF) has also filed a brief. We affirm on both direct appeal and cross-appeal.

Appellant began working for appellee-employer Price’s Utility in 1977. He worked as a construction worker, and while he had begun working in a supervisory capacity by the time of his injury, he was still required to perform heavy labor. On April 3, 2006, appellant sustained a compensable back injury when he fell through a barn roof approximately sixteen feet to the ground. Appellant sustained vertebral spine fractures at LI and L3.1 Appellant underwent a double kyphoplasty on LI and L3 on May 15, 2006. The parties stipulated that appellant reached maximum medical improvement on July 21, 2006. A functional capacity evaluation on July 17, 2006, showed that appellant was capable of performing light duty work. Appellant used vacation time from the date of his injury until August 31, 2006, when he was terminated because there was no light-duty work available.

The issues litigated before the ALJ included appellant’s correct average weekly wage pursuant to Ark.Code Ann. § 11 — 9— 518 (Repl.2002) and whether he had previously been paid temporary disability benefits and permanent disability benefits for anatomical impairment at an incorrect rate; whether Price’s Utility is bound by its prior acceptance of a thirteen-percent (13%) anatomical impairment, and if not, whether appellant’s correct anatomical impairment is ten percent (10%) or thirteen percent (13%) to the body as a whole; the SIF’s contention that the extent of disability is a premature issue until the vocational rehabilitation process has been completed; permanent and total disability, or in the alternative, wage-loss disability in excess of appellant’s permanent anatomical impairment; SIF liability; and evidentiary issues that arose during the course of the hearing. We will discuss the Commission’s rulings as they relate to each issue on appeal.

The appellate court’s standard of review in workers’ compensation cases has been set forth as follows:

It is settled law that on appellate review of workers’ compensation cases, we view the evidence and all reasonable inferences from it in the light most favorable to the Commission’s findings. A decision of the Commission is reversed only if we are convinced fair-minded persons using the same facts could not reach the conclusion reached by the Commission. In our review, we defer to the Commission in determining the weight of the evidence and the credibility of the witnesses. The issue is not whether we may have reached a different conclusion or whether the evidence might have supported a contrary finding.

Ellison v. Therma-Tru, 66 Ark.App. 286, 289, 989 S.W.2d 927, 928 (1999) (citations omitted). While we normally review only the opinion of the Commission, we consider both the Commission’s opinion and that of the ALJ when the Commission affirms and adopts the conclusions of the ALJ, as it did in the present case. Death & Permanent Total Disability Trust Fund v. Branum, 82 Ark.App. 338, 107 S.W.3d 876 (2003).

Direct Appeal

I. Substantial Evidence Supports the Commission’s Finding that Appellant Is Not Permanently and Totally Disabled.

For his first point on appeal, appellant argues that the Commission erred in finding that he is not permanently and totally disabled. Appellant points to Commissioner Hood’s concurring and dissenting opinion, in which the Commissioner states that the ALJ considered only the wage-loss claim and did not conduct the relevant inquiry into appellant’s entitlement to permanent and total disability benefits. However, Commissioner Hood concedes that “[t]he same factors considered when analyzing wage loss disability claims are usually considered when analyzing permanent and total disability claims.” As explained below, we hold that the Commission’s finding that appellant failed to establish that he is permanently and totally disabled is supported by substantial evidence.

A worker who sustains an injury to the body as a whole may be entitled to wage-loss disability in addition to his anatomical loss. See, e.g., Glass v. Edens, 233 Ark. 786, 346 S.W.2d 685 (1961). 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). 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. Ark.Code Ann. § 11 — 9— 522(b)(1) (Repl.2002). These “other matters” include motivation, post-injury income, credibility, demeanor, and a multitude of other factors. See Grimes v. North Am. Foundry, 316 Ark. 395, 872 S.W.2d 59 (1994). In considering factors that may affect an employee’s future earning capacity, the Commission considers the claimant’s motivation to return to work, since a lack of interest or a negative attitude impedes an assessment of the claimant’s loss of earning capacity. Logan Cnty. v. McDonald, 90 Ark.App. 409, 417, 206 S.W.3d 258, 263 (2005).

Permanent total disability means 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 burden of proof is on the employee to prove inability to earn any meaningful wage in the same or other employment. Ark.Code Ann. § 11 — 9— 519(e)(2). Here, the Commission, in adopting the ALJ’s opinion, found that appellant failed to establish that he is permanently and totally disabled. The ALJ found that appellant was entitled to a twenty-five-percent wage loss in excess of his ten-percent permanent anatomical impairment.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Ark. Dep't of Transportation v. Travis Evans
2025 Ark. App. 39 (Court of Appeals of Arkansas, 2025)
Murphy v. Arkansas Department of Correction
2024 Ark. App. 483 (Court of Appeals of Arkansas, 2024)
Skinner v. Tango Transport, Inc.
2016 Ark. App. 304 (Court of Appeals of Arkansas, 2016)
Cossey v. Pepsi Beverage Co.
2015 Ark. App. 265 (Court of Appeals of Arkansas, 2015)

Cite This Page — Counsel Stack

Bluebook (online)
358 S.W.3d 915, 2009 Ark. App. 776, 2009 Ark. App. LEXIS 945, Counsel Stack Legal Research, https://law.counselstack.com/opinion/maulding-v-prices-utility-contractors-inc-arkctapp-2009.