Tucker v. Cooper Standard Automotive, Inc.

374 S.W.3d 44, 2010 Ark. App. 7, 2010 Ark. App. LEXIS 9
CourtCourt of Appeals of Arkansas
DecidedJanuary 6, 2010
DocketNo. CA 09-697
StatusPublished

This text of 374 S.W.3d 44 (Tucker v. Cooper Standard Automotive, 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
Tucker v. Cooper Standard Automotive, Inc., 374 S.W.3d 44, 2010 Ark. App. 7, 2010 Ark. App. LEXIS 9 (Ark. Ct. App. 2010).

Opinions

JOHN B. ROBBINS, Judge.

| Appellant Steven Tucker sustained an admittedly compensable back injury while working for appellee Cooper Standard Automotive on October 27, 2000. Mr. Tucker underwent three surgical procedures and on June 19, 2003, Dr. Wayne Bruffett reported that Mr. Tucker had reached maximum medical improvement and assigned a 15-percent permanent physical-impairment rating. The appellee accepted and paid compensation for the 15-percent impairment rating, but a controversy arose over Mr. Tucker’s claim for permanent and total wage-loss disability benefits.

A hearing was held before the Administrative Law Judge (ALJ) for the purpose of establishing the extent, if any, of Mr. Tucker’s entitlement to permanent wage-loss disability benefits. After the hearing, the ALJ found that Mr. Tucker refused to participate in jobjplacementg assistance without reasonable cause, and thus that Mr. Tucker was not entitled to any wage-loss disability pursuant to Ark.Code Ann. § 11 — 9—505(b)(3) (Repl.2002), which provides:

The employee shall not be required to enter any program of vocational rehabilitation against his or her consent; however, no employee who waives rehabilitation or refuses to participate in or cooperate for reasonable cause with either an offered program of rehabilitation or job placement assistance shall be entitled to permanent partial disability benefits in excess of the percentage of permanent physical impairment established by objective physical findings.

Mr. Tucker appealed to the Workers’ Compensation Commission, and the Commission reversed the decision of the ALJ. Strictly construing the statute, the Commission found that the ALJ had erred as a matter of law in denying Mr. Tucker’s claim for permanent-total-disability benefits based on Ark.Code Ann. § 11-9-505(b)(3), because that provision cannot act as a statutory bar to a claim of permanent-total disability. The Commission then addressed Mr. Tucker’s alternative claim for permanent-partial disability, and found that there was no statutory bar to that claim because Cooper Standard Automotive did not prove that Mr. Tucker had acted unreasonably in his lack of cooperation with his job-placement counselor. Considering the relevant wage-loss factors, the Commission found that Mr. Tucker proved that he had sustained 20-percent permanent wage-loss in excess of his 15-percent permanent physical impairment.

Mr. Tucker now appeals the Commission’s decision, arguing that the Commission erred in limiting him to only 20-percent wage-loss disability benefits. Mr. Tucker asserts that the evidence established that he was permanently and totally disabled or, in the alternative, |sthat he should have been awarded a higher percentage of wage loss. Cooper Standard Automotive has cross-appealed, arguing that (1) the Commission erred in finding that Ark.Code Ann. § 11 — 9—505(b)(8) does not apply to a claim for permanent and total disability, and (2) the Commission erroneously shifted the burden of proof as to whether Mr. Tucker’s lack of cooperation under the statute was reasonable. Cooper Standard Automotive contends that because there was no substantial evidence to support appellant’s claim that he acted reasonably in failing to take any action to seek or obtain employment, he had failed in his burden of proving entitlement to any wage-loss disability pursuant to the above-cited statute.

On direct appeal, we affirm the Commission’s denial of Mr. Tucker’s claim for permanent-total disability benefits. However, we reverse and remand for the Commission to award a greater percentage of permanent-partial wage-loss benefits. We affirm on cross-appeal.

Under Ark.Code Ann. § 11-9-519(e)(1) (Repl.2002), permanent-total disability means inability, because of compen-sable injury, to earn any meaningful wages in the same or other employment. The wage-loss factor is the extent to which a compensable injury has affected the claimant’s livelihood. Logan Cnty. v. McDonald, 90 Ark.App. 409, 206 S.W.3d 258 (2005). In considering claims for permanent-partial disability benefits in excess of the employee’s percentage of permanent-physical impairment, the 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 future earning capacity. Ark.Code Ann. § 11 — 9—522(b)(1) (Repl.2002).

When reviewing a decision from the Workers’ Compensation Commission, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the findings of the Commission and affirm the decision if it is supported by substantial evidence. Lepel v. St. Vincent Health Servs., 96 Ark.App. 330, 241 S.W.3d 784 (2006). Substantial evidence is that which a reasonable mind might accept as adequate to support a conclusion. Id. It is the Commission’s function to weigh the medical evidence and assess the credibility and weight to be afforded any testimony. Clairday v. Lilly Co., 95 Ark.App. 94, 234 S.W.3d 347 (2006).

Mr. Tucker testified that he is thirty-seven years old and has a high school education. He began working for the ap-pellee in 1997, and at the time of his injury he was a press operator earning from $18 to $22 an hour, depending on the press work that was available. On October 27, 2000, Mr. Tucker was trying to “open a mold that got stuck.” He described a “mold” as a “steel chamber that holds approximately sixty to eighty steel parts.” Upon trying to open the mold with a breaker bar, he sustained a compensable back injury. Mr. Tucker was diagnosed with a herniated disc at the L4-5 level, and did not return to work until ten months after the injury.

Mr. Tucker underwent the first of three surgeries on July 27, 2001. That surgery consisted of a laminectomy at L4-5 and partial discectomy and nerve-root decompression. |fiHe returned to work four weeks after that surgery and was assigned sedentary finishing work behind the press operators earning about $12 an hour. Mr. Tucker testified that he continued working in that capacity for two or three months, but that he reinjured his back.

On January 18, 2002, Mr. Tucker underwent a second laminectomy at L4-5 with partial discectomy and nerve-root compression. He was unable to return to work after the second surgery, and he underwent fusion surgery on October 10, 2002.

Mr. Tucker next returned to work in February 2003. He was assigned light duty picking up trash for $12 an hour, but when cold weather gave him trouble performing that job he was assigned to the storeroom, where he handed out supplies at the same rate of pay. He performed that job for about a year, but stated that his back condition gradually got worse and he was missing work because of his pain. The appellee relocated Mr. Tucker to a job in the lab, which he performed for only four hours before deciding he could not do the job. Mr. Tucker discontinued working in April 2004, but returned for one day in October 2005 “because I was not receiving any income and had to do something.” He worked a finishing job for eight hours that day, but testified that he could not get out of bed the following day due to back, hip, and leg pain.

Mr.

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Related

Logan County v. McDonald
206 S.W.3d 258 (Court of Appeals of Arkansas, 2005)
Clairday v. the Lilly Co.
234 S.W.3d 347 (Court of Appeals of Arkansas, 2006)
Johnson v. McKee Foods
255 S.W.3d 478 (Court of Appeals of Arkansas, 2007)
Lepel v. St. Vincent Health Services
241 S.W.3d 784 (Court of Appeals of Arkansas, 2006)
Enterprise Products Co. v. Leach
316 S.W.3d 253 (Court of Appeals of Arkansas, 2009)
Clardy v. Medi-Homes LTC Services., LLC
55 S.W.3d 791 (Court of Appeals of Arkansas, 2001)
Oller v. Champion Parts Rebuilders, Inc.
635 S.W.2d 276 (Court of Appeals of Arkansas, 1982)

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Bluebook (online)
374 S.W.3d 44, 2010 Ark. App. 7, 2010 Ark. App. LEXIS 9, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tucker-v-cooper-standard-automotive-inc-arkctapp-2010.