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Ashcraft v. Headlee's Industrial Co.11/9/2005
NOT DESIGNATED FOR PUBLICATION
Appellant Jeffery Ashcraft brings this appeal from the February 16, 2005 decision of the Workers' Compensation Commission (Commission) reversing the administrative law judge's (ALJ) finding that he was entitled to wage-loss disability benefits in the amount of twenty percent in excess of his twenty-percent permanent anatomical impairment rating. We affirm.
Appellant sustained an admittedly compensable back injury on October 24, 2000, when he fell approximately twenty feet from a water tower while performing work-related duties in his position as a sandblaster and painter for appellee Headlee's Industrial Company. There was a severe compression fracture of the L1 vertebral body, with an approximate fifty-percent loss of vertebral body height anteriorly and significant canal compromise. He was initially treated conservatively with a hard brace, which was unsuccessful and resulted in further collapse of his vertebral body and increasing kyphosis. Subsequently, on June 18, 2001, appellant underwent surgery, which consisted of an anterior L1 vertebrectomy and T12 to L2 fusion with autologous bone and allograft humeral strut and Z-plate instrumentation. He underwent a functional capacity evaluation on July 19, 2002, at which time he had discontinued taking any pain medication and had completed a neurologic exam that was normal. Appellant was assessed with a twenty-percent permanent anatomical impairment rating, and the parties stipulated that his healing period ended on August 14, 2002.
It is undisputed that the appellees offered some level of vocational rehabilitation counseling through Ms. Terry Owens, a rehabilitation case manager, though the extent to which services, including job placement assistance, were offered is in dispute. Appellant did not participate in the suggested training and declined to meet with Ms. Owens to discuss alternative rehabilitation efforts. Bob White, an independent vocational specialist, conducted an additional vocational assessment for appellant's attorney on December 23, 2003, stating that he thought appellant could perform sedentary work but would need re-training to be employable.
Appellant asserted that he was either permanently and totally disabled, or at a minimum, that he was entitled to wage-loss disability benefits substantially in excess of his permanent impairment rating. Appellees contended that he was barred from receiving these benefits under Ark. Code Ann. ยง 11-9-505(b)(3) because he refused to participate in the recommended program of vocational rehabilitation. A hearing was held before the ALJ on February 23, 2004, and appellant was awarded a twenty-percent wage-loss disability impairment in addition to his twenty-percent permanent anatomical impairment rating. Appellees appealed to the Commission, asserting that the ALJ misapplied the law, applying provisions that were in existence prior to the passage of Act 796 in 1993. The Commission reversed the ALJ, finding that appellant waived and refused to participate in or cooperate with an offered program of rehabilitation and job placement assistance, and accordingly, was precluded from receiving wage-loss disability in excess of his anatomical impairment. This appeal followed.
In reviewing decisions from the Workers' Compensation Commission, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission's findings, and we affirm if the decision is supported by substantial evidence. Swearengin v. Evergreen Lawns, 85 Ark. App. 61, 145 S.W.3d 830 (2004). Substantial evidence exists if reasonable minds could reach the same conclusion. Id. When a claim is denied because the claimant ha
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