CLAIM NO. E410404
LINDA J. BROWN, EMPLOYEE, CLAIMANT v. HAY, INC., d/b/a TRAVELAIRE MOTEL, EMPLOYER, RESPONDENT and UNION STANDARD INSURANCE CO., CARRIER, RESPONDENT
Before the Arkansas Workers’ Compensation Commission
OPINION FILED DECEMBER 27, 1995
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by THOMAS G. MONTGOMERY, Attorney at Law, West Memphis, Arkansas.
Respondent represented by WILLIAM C. FRYE, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed in part and reversed in part.
[1] OPINION AND ORDER
[2] This matter comes on for review by the Full Commission from the decision of the Administrative Law Judge filed on January 20, 1995. We affirm the decision of the Administrative Law Judge finding that claimant is entitled to an additional six weeks of temporary total disability benefits and a 90 day supply of Ibuprofen and that claimant sustained a temporary aggravation of her pre-existing arthritic condition. However, we reverse the decision of the Administrative Law Judge finding that claimant’s average weekly earnings equaled $368. Furthermore, we address the permanent and total issue claimant raises in her brief. Claimant contends that her work-related injury combined with her preexisting arthritic condition is rendering her permanently and totally disabled. Act 796 materially altered the law concerning under what circumstances permanent benefits are awarded when a compensable injury combines with a preexisting disease.
[3] Claimant sustained a slip and fall on February 8, 1994. The claim was accepted as compensable and claimant received benefits. At the hearing, claimant contends that she is entitled to additional benefits. Also, claimant’s average weekly wage is in dispute. Claimant asked that the record be kept open. The Administrative Law Judge determined at the hearing that the record was complete. In January, 1995, claimant filed a Motion to Supplement the Record. This motion was not specifically ruled on by the Administrative Law Judge. The Administrative Law Judge determined, based upon the evidence in the record (apparently not including the evidence submitted in January 1995 motion), that claimant is entitled to an additional six weeks of temporary total disability benefits as well as a 90 day supply of Ibuprofen. The Administrative Law Judge also noted that claimant’s average weekly earnings were $368.00. Claimant appeals contending that her compensable injury combined with her preexisting arthritic condition rendering her permanently and totally disabled. Respondent cross-appealed contending that claimant is not entitled to the additional temporary total disability benefit and that the amount determined to be claimant’s average weekly earnings is not supported by a preponderance of the credible evidence.
[4] After conducting a de novo review of the record, we find that a preponderance of the credible evidence does not support the Administrative Law Judge’s determination that claimant’s average weekly earnings were $368.00. Thus, as stated, we reverse this portion of the Administrative Law Judge’s decision.
[5] The Administrative Law Judge determined that claimant’s average weekly earnings were $368. He based this solely upon claimant’s contention that she was paid $2.10 an hour and averaged $75.00 a day in tips. In our opinion, this does not constitute a preponderance of the credible evidence. The record indicates that claimant’s average weekly earnings were $70.17 per week. The credible evidence indicates that claimant made $4.25 per hour which includedher tips. Claimant admitted that she only pays taxes on an average wage of $4.25 per hour. Furthermore, claimant’s wage records support respondent’s position. Her wage records for the 52 weeks preceding her injury demonstrate that her total “net pay” during the time period was $3,648.89. This computes to average weekly earnings of $70.17. Although claimant contends that she made $75 a day in tips, other testimony contradicts this contention. Ms. Vicki Hancock, the assistant manager, specifically stated that no waitress ever made $75 in tips in one day. We find that the W-2 forms, the paycheck stubs and the other evidence constitutes a preponderance of the credible evidence. Claimant’s average weekly earnings were $70.17. Thus, we reverse the portion of the Administrative Law Judge’s opinion.
[6] We affirm the decision of the Administrative Law Judge awarding claimant the additional six weeks of temporary total disability benefits. However, this should be paid at a temporary total disability rate of $47.00 per week. Furthermore, the 90 day supply of Ibuprofen is reasonable and necessary medical treatment for claimant’s work-related injury.
[7] Lastly, we agree with the decision of the Administrative Law Judge finding that claimant only suffered a temporary aggravation of her preexisting arthritic condition. In her brief, claimant contends that her compensable injury combined with her preexisting arthritic condition rendering her permanently and totally disabled. However, this contention is not supported by a preponderance of the credible evidence.
[8] It should be noted that this claim is to be decided under
Act 796 of 1993. The appropriate code section is A.C.A. §
11-9-102 (4)(b) which provides:
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 disability shall be payable for the resultant condition only if the compensable injury is a major cause of the permanent disability or the need for treatment.
[9] Claimant contends that her compensable injury combined with her preexisting arthritic condition renders her permanently and totally disabled. However, there is insufficient evidence in the record to support this contention. At the hearing, the Administrative Law Judge closed the record. Also, as noted, it does not seem that the Administrative Law Judge considered Dr. Blumenfeld’s report. However, even considering the late report of Dr. Blumenfeld submitted in January 1995, claimant failed to meet her burden of proof. Dr. Blumenfeld does not state that the compensable injury is the “major cause” of claimant’s permanent disability or need for treatment.
[10] Additionally, the claimant’s attorney addresses the Second Injury Fund. The Second Injury Fund has not been joined as a party to this claim.
[11] Therefore, as stated, we affirm in part and reverse in part the decision of the Administrative Law Judge.
[12] IT IS SO ORDERED.
JAMES W. DANIEL, Chairman ALICE L. HOLCOMB, Commissioner
[13] Commissioner Humphrey concurs in part and dissents in part.
[14] CONCURRING AND DISSENTING OPINION
[15] I agree with the opinion of the majority concerning additional benefits for temporary total disability and the award for Ibuprofen. I likewise agree that any decision concerning Second Injury Fund liability would be improper because the Fund was never joined as a party. However, I dissent from any discussion concerning the extent of claimant’s permanent disability because, notwithstanding claimant’s brief, the issue was never presented to the Administrative Law Judge and any decision would, therefore, be premature. Further, I dissent from the majority’s finding concerning claimant’s average weekly wage.
[16] The majority opinion incorrectly states that the Administrative Law Judge found that claimant’s average weekly wage was $368.00. The Administrative Law Judge clearly found that claimant’s average weekly wage was $250.00. Be that as it may, the majority erred in finding that claimant’s average weekly wage is only $70.17.
[17] All parties agreed, and it is absolutely beyond dispute, that claimant was paid $4.25 per hour and was supposed to work 32 hours each week. This hourly rate included allowance for $2.15 per hour in tips. The employer reported wages and tips to the IRS based on these figures. Therefore, the contract of hire in force at the time of the accident was for 32 hours per week at $4.25 each hour.
[18] Wages “means the money rate at which the service rendered is recompensed under the contract of hire in force at the time of the accident, . . . and includes the amount of tips required to be reported by the employer pursuant to Section
6053 of the Internal Revenue Code of 1954, . . . or the amount of actual tips reported, whichever amount is greater.” Ark. Code Ann. §
11-9-102 (19) (Supp. 1993). “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. . . .” Ark. Code Ann. §
11-9-518 (a)(1) (1987). Under the facts of this case, the contract of hire in force at the time of the accident requires that claimants’ average weekly wage be calculated with reference to 32 hours each week at $4.25 per hour. This computes to an average weekly wage of $136.00 and a weekly benefit rate of $91.00.
[19] The majority has based its determination of the average weekly wage by averaging the number of hours claimant worked during the 52 weeks preceding the accident. This is clearly improper when there is a definite contract of hire. The exact number of hours claimant was able to work is totally irrelevant.
[20] For the foregoing reasons, I concur in part and dissent in part.
[21] PAT WEST HUMPHREY, Commissioner
