CLAIM NO. E317917
OPINION FILED FEBRUARY 13, 1998
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE AMY BELL, Attorney at Law, West Helena, Arkansas.
Respondents represented by the HONORABLE GUY ALTON WADE, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed as modified
OPINION AND ORDER  The respondents appeal an opinion and order filed by the administrative law judge on January 14, 1997. In that opinion and order, the administrative law judge found that the claimant earned an average weekly wage of $225.14 per week at the time of the compensable accident. In addition, the administrative law judge found that the preponderance of the evidence demonstrates that the claimant sustained an impairment of 50% rated to the lower extremity below the knee as a result of his compensable injury.
After conducting a de novo review of the entire record, we find the claimant's average weekly wage at the time of the compensable accident was $211.47. In addition, we find that the claimant failed to prove by a preponderance of the evidence that he is entitled to any benefits for a permanent anatomical impairment in excess of a 35% impairment to the foot already paid by the respondents.
1. Average Weekly Wage  The claimant became employed by the respondents, Griffin Gin, in May of 1993 and had worked for the respondents for 23 weeks prior to sustaining a compensable injury on October 26, 1993. The claimant's wage records indicate that during this period he worked a total of 862.5 regular, non-overtime hours and that he received an additional $551.25 in overtime earnings during this period.
Ark. Code Ann. § 11-9-518 states that the average weekly wage shall be computed as follows:
(a)(1) Compensation shall be computed on the average weekly wage earned by the employee under the contract of hire in force at the time of the accident and in no case shall be computed on less than a full-time workweek in the employment period.
. . .
(b) Overtime earnings are to be added to the regular weekly wages and shall be computed by dividing the overtime earnings by the number of weeks work by the employee in the same employment under the contract of hire in force at the time of the accident, not to exceed a period of fifty-two (52) weeks preceding the accident.
(c) If, because of exceptional circumstances, the average weekly wage cannot be fairly and justly determined by the above formula, the commission may determine the average weekly wage by a method that is just and fair to all parties concerned.
In the present case, the claimant's employment records and testimony indicate that he was not employed to work any set number of hours per week by the respondents; however, the record does establish that the claimant's contract of hire in force at the time of the accident was for wages at $5.00 per hour. As Claimant's Exhibit No. 2 notes, the claimant worked an average of 37.5 hours per week during the 23 week period preceding his accident. Therefore, the claimant's base wages during this period should be calculated by multiplying 37.5 hours by $5.00 per hour indicating a base average weekly wage of $187.50 per week.
With regard to the computation of overtime earnings pursuant to Section 518(b), the records indicate that the claimant's overtime earnings were $551.25 over a 23 week period. Therefore under the formula contained in Section 518 (b), the claimant's overtime earnings contributed an additional $23.97 per week to his base average weekly wage. Consequently, we find that the greater weight of the evidence indicates that the claimant received an average weekly wage of $211.47 under the formula contained in Ark. Code Ann. § 11-9-518. In reaching our decision, we note that the administrative law judge concluded that the claimant's compensation rate shall be computed on the basis of a full-time work week despite the fact that the claimant worked less than 40 hours per week some weeks and more than 40 hours per week in other weeks. In assessing the administrative law judge's finding in this regard, however, we note that Claimant's Exhibit No. 2 does not assert the claimant's compensation rate should be computed on the basis of a 40 hour work week, and we see no basis from the claimant's testimony or evidence in the record to conclude that the claimant contracted to work at least 40 hours per week. Moreover, the wage records presented into evidence indicate that the claimant work 40 hours or more per week for 12 of the 23 weeks that he worked, and less than 40 hours per week for 11 of the 23 weeks that he worked. On this record, we find that the greater weight of the evidence simply indicates that the claimant was a part-time employee who at times worked less than 40 hours per week and at times worked more than 40 hours per week. We note that since the claimant's "contract of hire" at the time of the accident was for wages of $5.00 per hour, the respondents' calculation of the claimant's average weekly wage is somewhat in error since the respondents calculated the claimant's base average weekly wage to some extent on the $4.50 contract of hire that he was working under prior to his raise on or around August 12, 1993.
2. Permanent Anatomical Impairment Rating  We also find that the claimant failed to establish that he is entitled to benefits for permanent anatomical impairment in excess of the 35% impairment to the foot assigned by Dr. Wilson and paid by the respondents.
Ark. Code Ann. § 11-9-102 (5)(F)(ii) states:
Permanent benefits shall be awarded only upon a determination that the compensable injury was a major cause was the major cause of the disability or impairment. If any compensable injury combines with a preexisting disease or condition or the natural process of aging to cause or prolong disability or a need for treatment, permanent benefits shall be payable for the resultant condition only if the compensable injury is the major cause of the permanent disability or the need for treatment.
In addition, Ark. Code Ann. § 11-9-704 (c)(1)(B) states:
Any determination in the existence or extent of physical impairment shall be supported by objective and measurable physical or mental findings.
Ark. Code Ann. § 11-9-102 (16)(A) states:
"Objective findings" are those findings which cannot come under the voluntary control of the patient.
In addition Section 102(16)(A)(ii) states in relevant part that:
When determining physical or anatomical impairment, neither a physician, any other medical provider, an administrative law judge, the Workers Compensation Commission, nor the Courts may consider complaints of pain . . .
In his April 6, 1995, impairment rating Dr. Richardson stated that:
Due to a displaced calcaneus fracture with reduction of subtalar, midtarsal, and tibiotalar motion of a mild degree and due to continued symptoms and inability to perform activities of daily living without pain, he has a permanent partial physical impairment rating of 50% of his right foot.
On the other hand, Dr. Wilson assigned the claimant a 35% impairment to the foot as a result of this compensable injury which the respondents have already paid. Dr. Wilson's August 27, 1996 letter indicates that his rating is based on the AMA GUIDES and none of Dr. Wilson's medical reports indicate that Dr. Wilson ever considered pain, or the lack thereof, in assessing his 35% anatomical impairment rating. Therefore, after considering the medical records of Dr. Wilson, Dr. Richardson, the provisions of Ark. Code Ann. § 11-9-102 (16)(a)(2), and all other appropriate factors, we find that the claimant failed to prove by preponderance of the evidence that he is entitled to any benefits for permanent anatomical impairment to the foot in excess of those benefits in excess of 35% anatomical impairment rating assigned by Dr. Wilson.
Therefore, after conducting a de novo review and for the reasons discussed herein, we find that the claimant's average weekly wage at the time of the compensable accident was $211.47. In addition, we find that the claimant failed to prove by a preponderance of the evidence entitlement to any benefits for a permanent anatomical impairment in excess of a 35% impairment to the foot already paid by the respondents.
All accrued benefits shall be paid in a lump sum without discount and with interest thereon at the lawful rate from the date of the administrative law judge's decision in accordance with Ark. Code Ann. § 11-9-809 (Repl. 1996). For prevailing in part on this appeal before the Full Commission, claimant's attorney is hereby awarded an additional attorney's fee in the amount of $250.00 in accordance with Ark. Code Ann. § 11-9-715 (Repl. 1996).
IT IS SO ORDERED.
DISSENTING OPINION  I must respectfully dissent from the findings concerning claimant's average weekly wage and his entitlement to benefits for permanent anatomical impairment.
Contrary to the assertion by respondent, the mere fact that claimant's employment was seasonal in nature does not compel the Commission to ignore the clear preference setforth in Ark. Code Ann. § 11-9-518(a)(1) (Repl. 1996) and compute the average weekly wage pursuant to subsection (c) as if exceptional circumstances existed. Generally, when the contract of hire provides for a forty hour, or full time, work week whenever work is available, the average weekly wage is to be computed on the basis of the full time work week, even if the employment is seasonal in nature. Gill v. Ozark Forest Products, 255 Ark. 951, 504 S.W.2d 357 (1974); Temple's Garden Nursing v. Lovelady, 47 Ark. App. 114, 885 S.W.2d 915 (1994). See also Farm Air Corp. v. Reader, 11 Ark. App. 72, 666 S.W.2d 717 (1984).
Respondent's sole argument is that claimant was never guaranteed forty hours of work per week. However, claimant always worked whatever number of hours were available to him. Claimant testified that the number of hours he worked varied "according to what doing." In fact, of the twenty-three weeks claimant worked before his injury, in over half (12) he worked more than forty hours, in four other weeks he worked 38.5 or more, in two weeks 34 or above, in three weeks 30 or above, 27 hours in one week and finally, 23 hours the week of the injury. In my opinion, there are no exceptional circumstances justifying application of subsection (c) of § 518. Accordingly, I would base claimant's average weekly wage on a 40 hour work week.
Claimant was earning $5.00 per hour on the date of the accident, which computes to an average weekly wage of $200.00 per week. According to the evidence concerning the overtime worked by claimant, claimant would be entitled to an increase in his average weekly wage of $23.97 each week, making his average weekly wage $223.97 and I would so find in this case.
Finally, I would affirm the Administrative Law Judge's award of benefits for permanent anatomical impairment in an amount equal to 50% to the right lower extremity below the knee or stated another way, 50% to the foot. I believe the Administrative Law Judge's analysis is well-reasoned and sufficiently supports the award.
Further, as a result of the compensable injury, claimant sustained a severely comminuted intra-articular displaced fracture of the right calcaneus (heel). In November 1993, Dr. Greer Richardson, claimant's treating physician, performed an open reduction internal fixation. In November 1994, claimant had additional surgery to remove the hardware as well as a tenosynovectomy and release of the scarred peroneal tendons around the ankle. In April 1995, claimant had to again be placed in a brace and X-rays showed degenerative arthritis. Finally, in March 1996, additional surgery was performed to excise a neuroma of the foot.
Dr. Greer assigned claimant a permanent anatomical impairment of 50% to the foot. Dr. Richardson is a an expert in this area of medicine, as evidenced by Dr. C. Lowery Barnes' statement that "[h]e is fortunate to have had services of Dr. Greer Richardson, one of the premier foot surgeons in this country." While the prevailing opinion relies on Dr. Wilson's estimate of claimant's permanent anatomical impairment, I must point out that Dr. Wilson's opinion was that claimant had at least a 35% impairment to the foot. Therefore, I find that claimant has proven by a preponderance of the evidence that he has a permanent anatomical impairment of 50% to the foot.
For the foregoing reasons, I dissent.
PAT WEST HUMPHREY, Commissioner