University of Arkansas for Medical Sciences; And Arkansas Insurance Department, Public Employee Claims Division v. Lisa Pozner

2025 Ark. App. 222

• Court: Court of Appeals of Arkansas
• Decided: April 16, 2025
• Status: Published

Opinion

Cite as 2025 Ark. App. 222 ARKANSAS COURT OF APPEALS DIVISION I No. CV-24-442

UNIVERSITY OF ARKANSAS FOR Opinion Delivered April 16, 2025 MEDICAL SCIENCES; AND ARKANSAS INSURANCE APPEAL FROM THE ARKANSAS DEPARTMENT, PUBLIC EMPLOYEE WORKERS’ COMPENSATION CLAIMS DIVISION COMMISSION [NO. H109437]

APPELLANTS

V.

LISA POZNER

APPELLEE AFFIRMED

N. MARK KLAPPENBACH, Chief Judge

University of Arkansas for Medical Sciences (UAMS) appeals the Commission’s

award of 35 percent in wage-loss-disability benefits over Lisa Pozner’s 7 percent whole-body

permanent-partial-disability rating. UAMS contends that substantial evidence does not

support the award of wage-loss benefits because Pozner is highly educated, experienced, and

able to perform sedentary work but does not want to work. We affirm.

In September 2021, Pozner, a woman in her early sixties, was working for UAMS as

a nurse practitioner when she suffered a compensable acute spinal fracture at L1. In

November 2021, she sustained two additional fractures at L2 and T12 during a kyphoplasty

procedure. As part of her medical treatment, Pozner wore a back brace to support her lumbar and thoracic spine, and she was prescribed Flexeril (a muscle relaxer) and Tramadol (a pain

reliever). She reached maximum medical improvement in December 2022. Pozner

performed reliably in a functional capacity evaluation, which resulted in her receiving a

rating of 7 percent permanent impairment to the body as a whole caused by her work injury.

The compensability of Pozner’s claim was not disputed, and UAMS paid medical and

temporary-total-disability benefits as well as Pozner’s 7 percent rating.

Pozner claimed that she was permanently and totally disabled (PTD) because of her

work injury. At the August 2023 hearing, Pozner intermittently sat and stood while testifying.

She asserted that she had constant back pain, her gait was slow and imperfect, she was

unsteady and used a cane, she could not lift over ten pounds, she could not bend or crouch

without terrible pain, and she could walk, stand, and lie only for short periods of time. The

result of Pozner’s functional capacity evaluation indicated that Pozner could do full-time

sedentary work, and particular jobs were suggested, but Pozner said she simply could not

work a sedentary job with her excruciating back pain. Pozner said she continued to look for

jobs in the event she would become able to work; and she was motivated to work and wanted

to work to help people.

Pozner holds bachelor’s degrees in English, psychology, social work, and nursing and

master’s degrees in counseling psychology and nursing. UAMS emphasized that Pozner is

an experienced nurse practitioner, distress counselor, and registered nurse. UAMS noted

that Pozner applied for jobs after she was let go from UAMS in February 2022 so that she

could get unemployment benefits. She had professed in her unemployment forms that she

2 could work, and she received unemployment benefits until those ran out in June 2022.

UAMS criticized Pozner for ceasing to work with vocational rehabilitation, which was

helping her find sedentary jobs within her functional limits. Pozner had completed online

continuing nursing education and unemployment forms although Pozner said she had to do

those in starts and stops, often lying in bed while online. UAMS contended that Pozner was

unmotivated and uninterested in rejoining the work force although she could do sedentary

work and was highly qualified to work.

Medical records and unemployment records were admitted into evidence. The

attorneys presented arguments and post-hearing briefs for the administrative law judge’s

(ALJ’s) consideration.

The ALJ found that Pozner was not entitled to PTD, but she was entitled to 35

percent wage-loss disability in addition to her 7 percent permanent-partial-disability rating.

The ALJ took into consideration Pozner’s age, education, experience, motivation, and

present physical condition. The ALJ found that Pozner could “obtain suitable part-time

work with her credentials,” but she credibly testified and demonstrated that she could not

sit or stand for any reasonable period of time. Pozner was deemed a credible witness when

she testified she has a strong desire to continue working but simply could not with her severe

back pain. The ALJ agreed that “intense back pain can create great difficulties for finding

3 suitable employment.” UAMS appealed the ALJ’s decision to the Commission, which

affirmed and adopted the ALJ’s decision.1 This appeal followed.

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.

Murphy v. Ark. Dep’t of Corr., 2024 Ark. App. 483, 700 S.W.3d 741. We will reverse only if

we are convinced fair-minded persons using the same facts could not reach the Commission’s

conclusion. Id. The issue is not whether we may have reached a different conclusion or

whether the evidence might have supported a contrary finding; we determine if there is

substantial evidence in the record to support the Commission’s conclusion. Id. The appellate

court is foreclosed from determining credibility and weight to be accorded testimony. Reed

v. M.A. Mortenson Cos., 2024 Ark. App. 253, 687 S.W.3d 882.

The wage-loss factor is the extent to which a compensable injury has affected the

claimant’s ability to earn a livelihood. Ark. Dep’t of Corr., 2019 Ark. App. 124, 571 S.W.3d

539. When a claimant has an impairment rating to the body as a whole, the Commission

has the authority to increase the disability rating based on wage-loss factors. Id. The

Commission is charged with the duty of determining disability by evaluating the medical

evidence and other factors affecting wage loss, such as the claimant’s age, education, work

experience, motivation, postinjury income, demeanor, credibility, and any other matters

1 When the Commission adopts the ALJ’s opinion, the Commission makes the ALJ’s findings and conclusions the findings and conclusions of the Commission. Univ. of Ark. for Med. Scis. v. Barton, 2022 Ark. App. 181, 644 S.W.3d 818.

4 reasonably expected to affect future earning capacity. Id. Considering whether a claimant is

entitled to wage-loss benefits is a fact-intensive inquiry. Id. See also Ark. Code Ann. § 11-9-

522(b) (Repl. 2012).

On appeal, UAMS reiterates the arguments it made to the ALJ. UAMS focuses on

Pozner’s being a highly educated and qualified employee and her admitted ability to do

online activities at home when it suited her. UAMS notes that Pozner did not follow through

with the job assistance offered by vocational rehabilitation. 2 UAMS asserts that the only

reasonable conclusion to draw is that Pozner does not want to work within her restrictions.

UAMS lists previous decisions of our court in which we affirmed the Commission’s decision

to award those claimants lower percentages of wage loss, and UAMS attempts to compare

those specific situations to the facts in the present appeal. In short, UAMS contends that the

35 percent award is not supported by substantial evidence.

As stated, when deciding whether to award wage-loss benefits in excess of a

permanent-partial-disability rating, the Commission is to consider a multitude of factors, and

it is a fact-intensive inquiry. UAMS is requesting that we reweigh the evidence and credibility

findings made by the Commission; however, we will not do so because it is the Commission’s

2 In its brief, UAMS cites Arkansas Code Annotated section 11-9-505(b)(3) (Repl. 2012) for the proposition that a claimant who refuses to participate in or cooperate with a rehabilitation program or job-placement assistance is barred from receiving wage-loss benefits. However, UAMS did not raise this issue to the ALJ or Commission. To preserve an issue for appellate review, it is a party’s responsibility to present the issue to the Commission and obtain a ruling. N. Hills Surgery Ctr. v. Otis, 2021 Ark. App. 468, 638 S.W.3d 323.

5 duty to make credibility determinations and to weigh the evidence. See Hot Springs Convention

Ctr. v. Phelps, 2021 Ark. App. 83; Tempworks Mgmt. Servs., Inc. v. Jaynes, 2020 Ark. App. 70,

593 S.W.3d 519. While Pozner is undoubtedly highly educated and experienced, the

Commission considered her request for wage-loss benefits utilizing the appropriate factors.

See Ark. Highway & Transp. Dep’t v. Work, 2018 Ark. App. 600, 565 S.W.3d 138. Reasonable

minds could reach the decision that the Commission made in this case. The Commission’s

decision is supported by substantial evidence.

Affirmed.

ABRAMSON and MURPHY, JJ., agree.

Charles H. McLemore Jr., for separate appellant Public Employee Claims Division.

Mark Alan Peoples, PLC, by: Mark Alan Peoples, for appellee.