THOMPSON v. STATE HIGHWAY TRANSPORTATION DEPARTMENT, 1997 AWCC 400

CLAIM NO. E400490

CONWAY THOMPSON, EMPLOYEE, CLAIMANT v. STATE HIGHWAY TRANSPORTATION DEPARTMENT, EMPLOYER, RESPONDENT and PUBLIC EMPLOYEE CLAIMS DIVISION, CARRIER, RESPONDENT

Before the Arkansas Workers’ Compensation Commission
OPINION FILED NOVEMBER 4, 1997

Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.

Claimant represented by DENVER L. THORNTON, Attorney at Law, El Dorado, Arkansas.

Respondent represented by CALVIN GIBSON, Attorney at Law, Little Rock, Arkansas.

Decision of Administrative Law Judge: Affirmed.

[1] OPINION AND ORDER
[2] Claimant appeals from a decision of the Administrative Law Judge filed April 10, 1997 finding that claimant has failed to prove by a preponderance of the evidence that he is entitled to any benefits over and above the award of 15% physical impairment for the scheduled injuries to each foot. Based upon our de novo
review of the entire record, we find that claimant has failed to meet his burden of proof.

[3] Claimant sustained an admittedly compensable injury on July 21, 1993, in the form of heel spurs on both feet. Claimant eventually underwent surgery for his heel spurs and currently contends that he is no longer capable of working. The only issue presented to the Administrative Law Judge and thus on appeal is whether claimant is entitled to benefits over and above the amount set forth in the schedule. [4] Claimant specifically contends that the schedule limiting claimant to benefits to the schedule and prohibiting wage loss disability unless claimant can prove entitlement to permanent and total disability benefits is unconstitutional. Claimant did not brief his constitutional argument but rather directed the Commission to the briefs previously filed by claimant’s attorney in Sarah Washington v. Medical Center of South Arkansas, (E205029) which was decided by this Commission on September 10, 1997. In short, claimant contends that the distinction drawn between scheduled injuries and injuries to the body as a whole is an arbitrary distinction “wholly void of a rational basis.” Claimant contends that the denial of wage loss benefits or any benefits in excess of the scheduled injury violates the equal protection clause of the Fourteenth Amendment of the United States. After reviewing the record as a whole, we cannot agree with claimant. [5] The equal protection clause of the Fourteenth Amendment is not violated simply because the Workers’ Compensation Act treats claimants with scheduled injuries differently than those with injuries to the body as a whole. The question is whether the classification of injured workers with scheduled injuries bears a rational relationship to a legitimate state objective. “The classification will be upheld if any state of facts reasonably may be conceived to justify it.” Peterson v. Garvey Elevators, Inc., 850 P.2d 893 (Kan. 1993). The receipt of Workers’ Compensation benefits is not a fundamental right. Thus, the rational basis test applies in determining whether injury classifications for providing benefits violate the equal protection guarantees of the constitution. Industrial Claims Appeals Office of the State ofColorado v. Ramaro, 912 P.2d 62 (Col. 1996). [6] The Supreme Court of Iowa recently addressed whether the different treatment of claimants with scheduled injuries and injuries to the body as a whole was constitutional. Gilleland v.Armstrong Rubber Co., 524 N.W.2d 402 (Iowa 1994). The claimant in Gilleland argued that an employee who does not suffer a scheduled injury is able to obtain recovery from loss of earning capacity while an employee who suffers a scheduled injury is not. The Iowa Supreme Court noted that in the application of the rational basis analysis, the claimant in Gilleland:

Must first demonstrate beyond a reasonable doubt that the scheduled injury classification [of the Workers’ Compensation Act] deny him equal protection. He must indicate with particularity how this denial occurs. To meet this heavy burden, he must negate every reasonable basis which may support this classification. (Citations omitted)

[7] The Iowa Court noted that although the claimant was correct in that a disparity existed between the compensation for scheduled and non-scheduled injuries, such disparity was not unconstitutional. The Court stated:

Non-scheduled permanent partial disabilities are compensated by the industrial disability method which takes into account the loss of earning capacity. Scheduled permanent partial disabilities, on the other hand, are `arbitrarily’ compensated according to the classification of [the Workers’ Compensation Act] without regard to loss of earning capacity. Determining disability in this fashion, looking only to the impairment of the employee’s body function — is referred to as the functional disability method. By using the functional disability method of [the Workers’ Compensation Act], `we are not concerned with the question of the extent of disability. The compensation in this event is definitely fixed according to the loss of use of the particular member. The very purpose of the schedule is to make certain the amount of compensation in the case of specific injuries and to avoid controversies.‘

[8] Since a rational basis exists, i.e., “reduction of controversies through certainty of compensation,” the Iowa Supreme Court held the scheduled injury provisions of their Workers’ Compensation Act to be constitutional. [9] After thoroughly reviewing the Arkansas case law concerning wage loss disability and scheduled injury cases, we find that the schedules take into consideration not only physical impairment but also loss of earning capacity. In reaching our finding, we note that the Arkansas Supreme Court has flirted with this issue on several occasions. Moreover, it has directly addressed the constitutionality of the hernia schedule under Ark. Code Ann. §11-9-523. [10] In Springdale Farms v. McGarrah, 260 Ark. 483, 541 S.W.2d 928
(1976) the Supreme Court was faced with the scheduled injury and made the following comment:

We consider the case to be controlled by our decisions in Ray v. Shellnut Nursing Home, 246 Ark. 575, 439 S.W.2d 41 (1969), and Anchor Constr. Co. v. Rice, 252 Ark. 460, 479 S.W.2d 573
(1972) . . . the Anchor case, like the case at bar, involved a scheduled injury. Ark. Stat. Ann. § 81-1313 (c)(22) (Repl. 1960). There we held that a scheduled injury cannot be apportioned to the body as a whole in determining partial disability and that the Commission, in fixing the partial loss of the use of a limb, cannot consider a wage earning loss in addition to the functional loss.

[11] The Court then went on to state:

The explanation for what is seemingly a harsh result was given in Anchor, where we quoted the following paragraphs
from Larson’s Workmans’ Compensation Law, § 58.10:
The typical schedule provides that, after the injury has become stabilized and its permanent affect can be appraised, benefits described in terms of regular weekly benefits for specified numbers of weeks shall be paid, ranging, for example, from 312 weeks for an arm, 288 for a leg, and 160 for an eye to 38 for a great toe and 7 1/2 for one phalange of the little finger. These payments are not dependent on actual wage loss.
Evidence that claimant has had actual earnings, or has even been regularly employed at greater earnings than before, is completely immaterial.
This is not, however, to be interpreted as an erratic deviation from the underlying principle of compensation law — that benefits relate to loss of earning capacity and not to physical injury as such. The basic theory remains the same; the only difference is that the effect on earning capacity is a conclusively presumed one, instead of a specifically proved one based upon the individuals actual wage loss experience the effect must necessarily be a presumed one, since it would be obviously unfair to appraise the impact of a permanent injury on earning capacity by looking at claimant’s earning record for some relatively short temporary period preceding the hearing. The alternative is to hold every compensation case involving any degree of permanent impairment open for a lifetime, making specific calculations of the effects of impairment on claimant’s earnings each time claimant contends that his earnings are being adversely affected. To avoid this protractive administrative task, the apparently cold-blooded system of putting average price tags on arms, legs, eyes, and fingers has been devised. (Emphasis added.)

[12] Moreover, as early as 1952, our Supreme Court noted:

It is quite likely that when the initiated measure was written, its framers had in mind the Commission’s expression that a worker who had sustained permanent partial disability `was forced to compete in the open market as a handicapped worker.’

[13] Lion Oil Co. v. Reeves, 221 Ark. 5, 254 S.W.2d 450 (1952). [14] In addressing the hernia statute the Arkansas Supreme Court upheld the constitutionality of that Statute in Smith v. RicelandFoods, 261 Ark. 10, 545 S.W.2d 604 (1977). The hernia statute set forth at Ark. Code Ann. § 11-9-523 provides a specific schedule for hernias. The claimant in Smith had sustained five hernias while employed by respondent. The claimant was awarded the scheduled benefits for the specified number of weeks as set forth in the hernia schedule. Claimant contended that he was permanently and totally disabled. On appeal to the Arkansas Supreme Court, the claimant contended that the hernia schedule was unconstitutional and violated the Fourteenth Amendment equal protection provisions. In affirming the decision of the Workers’ Compensation Commission, the Arkansas Supreme Court rejected claimant’s argument that the hernia schedule was an unreasonable classification. The Court in Smith v. Riceland Foods, stated “here appellant argues that to deny him benefits under the hernia subsection instead of allowing benefits under the total disability subsection creates an unreasonable classification that is void under the equal protection clauses of the Constitution of the United States and Arkansas. We find this contention without merit for the reasons set forth in Corbit v. Mohawk Rubber Co., 256 Ark. 932, 511 S.W.2d 184 (1974). [15] The Court in Corbit stated:

In determining whether a classification denies equal protection of the laws, the Court must consider whether the difference does injustice to the class generally, even though it bears hard on the particular case.

[16] Like the claimant in the case presently before the Commission, the claimant in the leading case regarding scheduled injuries, Anchor Constr. Co. v. Rice, Supra, argued that she was precluded from presenting evidence of loss of earning capacity on a scheduled injury case. However, the Court in Anchor noted:

The basic theory remains the same; the only difference is that effect on earning capacity is a conclusively presumed one, instead of a specifically proved one based on the individuals wage loss experience.

[17] Accordingly, we find that the schedules include not only the impairment ratings but also take into account loss of earning capacity as the Court explained in Anchor v. Rice, Supra. Wage loss is conclusively presumed in scheduled injury cases. Such presumption is constitutional under our administrative procedures and serves a legitimate purpose of avoiding protracted litigation. Such purpose is rationally related to the legitimate objectives of providing employees with a prompt and certain recovery and protecting an employer’s interest by having their liability identified expediently and precisely. [18] Since we find that wage loss is taken into account in each of these schedules, the practice of excluding additional wage loss over and above the schedules is rationally related to the legitimate governmental objective of protecting employees and employers. The schedules specifically protect employers from liability for the loss of the ability to earn wages when the injured employees have already been compensated for such loss.Cook v. Aluminum Co. of America, 35 Ark. App. 16, 811 S.W.2d 329
(1991). It must not be forgotten that the schedules are not wholly exclusive. A claimant who is permanently and totally disabled is entitled to such benefits. Moreover, claimants are entitled to rehabilitation benefits when they prove by a preponderance of the evidence entitlement to such benefits. Thus, the scheduled injury provision does not eliminate entitlement to greater benefits if a claimant can meet his burden of proof certain. [19] Therefore, based upon our de novo review of the entire record, we find that claimant has failed to meet his burden of proof by a preponderance of the evidence that our classification of scheduled injuries deny him equal protection. Accordingly, we affirm the decision of the Administrative Law Judge. [20] IT IS SO ORDERED.

ELDON F. COFFMAN, Chairman MIKE WILSON, Commissioner

[21] Commissioner Humphrey dissents.