Opinion
CLAIM NO. F011598
OPINION FILED NOVEMBER 13, 2002
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by HONORABLE GARY DAVIS, Attorney at Law, Little Rock, Arkansas.
Respondent represented by HONORABLE CURTIS L. NEBBEN, Attorney at Law, Fayetteville, Arkansas.
Decision of Administrative Law Judge: Reversed.
OPINION AND ORDER
The respondents appeal to the Full Commission an Administrative Law Judge's opinion filed on December 18, 2001. The Administrative Law Judge found that the claimant was entitled to an award of wage loss benefits. After reviewing the entire record de novo, the Full Commission finds that the claimant failed to prove by a preponderance of the evidence that he is entitled to wage loss benefits. We therefore reverse the opinion of the Administrative Law Judge.
The claimant was born June 3, 1970. He graduated from high school, but has had no additional vocational or military training. He has a wife and a 3-year-old daughter, and at the time of the hearing was expecting another child.
The claimant became employed with the respondent on September 25, 1995. He initially worked as a handler and moved to the position of courier after four to five months. As a courier, he would load a delivery truck with packages and deliver those packages throughout the day. This job required that he be able to lift up to 150 pounds.
On October 2, 2000, the claimant sustained a compensable injury to his back during a lifting incident as he was loading his truck. He suffered a herniated disc and had surgery on October 24, 2000. He continues to have problems with numbness and pain in his left lower extremity and experiences drop-foot in his left foot. The claimant was assessed with a 10% permanent impairment rating and restricted to lifting no more than 10 pounds.
The claimant's restrictions would not allow him to return to work as a courier, but he returned to work for the respondent as a dispatcher, a position that does not require lifting. The claimant testified that as a courier he usually worked between 38 and 40 hours a week, and earned $13.37 per hour. As a courier he was classified as a full-time employee and was guaranteed 35 hours of employment per week. As a dispatcher, the claimant earns $14.33 per hour, but is classified as a part-time employee and is only guaranteed 17.5 hours of employment per week. The claimant testified that he had consistently worked more than 17.5 hours per week because the respondent was short-handed. He testified:
. . . I'm the only one that's been in there to fill in since the two people have left and I cover vacations. And there's two other part-time people in there that don't want hours. Well, I welcome them really. So I don't have any problems. If they need me to do something, I will.
The claimant testified that a month or two prior to the hearing he was informed by a manager that the part-time dispatchers were working too many hours and that management was going to change the schedule. He also said that a memo was recently sent to him regarding his schedule and he anticipated losing four hours a day based on the new scheduling. However, as of the hearing date, the number of hours he was working had not changed. He stated that he was working a lot at present and did not know what the future would hold.
The claimant testified that another difference between working full-time and part-time was that there was some loss of benefits, but he said that he was not exactly sure what kind of benefits.
The claimant testified that he requested a full-time position, but was refused, and it was his understanding that there was no full-time position available at the present time. Under company policy, because the claimant accepted a part-time job, he was not able to apply for a full-time position in Little Rock for six months from the date that he accepted the part-time job, and he would have to wait for twelve months before he could apply for a full-time job with the respondent in another area of the country. The claimant did not think that there would be a full-time dispatcher job available to him in Little Rock any time soon.
The claimant stated that he had wanted to move into a management position, but that management positions have the same lifting requirements as the couriers and, therefore, he would never be able to move into a management position, based on his current restrictions. However on cross-examination he clarified that these lifting limitations were for ground operation management positions, and he was not familiar with the requirements for all management jobs.
Emmanuel Brooks, an operational manager for the respondent in the Little Rock area, confirmed that the claimant was guaranteed only 17.5 hours per week as a permanent part-time employee, and that full-time employees were guaranteed 35 hours per week. Mr. Brooks confirmed that the claimant had been "racking up a bunch of hours" since he had been working as a dispatcher because he was covering vacation times and sick calls, and the other two part-time dispatchers did not request the additional hours. Mr. Brooks stated that dispatchers are at a higher salary classification than couriers, but that couriers tend to get more hours. He stated that the claimant would be able to apply for participation in the respondent's management training program, and while ground operations management does have lifting requirements, there are many other types of management positions available that would not necessarily have lifting requirements. Regarding benefits for a full-time employee as opposed to a part-time employee, Mr. Brooks said that benefit accrual was simply half: for example, vacation time is accrued at half the rate for a part-time person than it is for a full-time person.
The claimant was injured on October 2, 2000. The payroll documents in evidence show that for the four weeks prior to that date the claimant's hours and earnings were as follows:
Week Hours Gross pay 8/19/00 35.34 $465.43 8/26/00 37.29 $491.11 9/2/00 37.67 regular 5.92 overtime $613.06 9/9/00 30.34 regular 8.00 holiday $504.94 _____________________________________________________________ Pre-injury average weekly gross $518.64 The post-injury payroll records in evidence for the four most recent weeks before the hearing are as follows: Week Hours Gross pay 6/16/01 37.42 regular 1.95 overtime $548.50 6/23/01 40 regular 4.41 overtime $635.94 6/30/01 40 regular 16.96 overtime $920.59 7/7/01 31.23 regular 6.63 overtime 4 other $648.41 ___________________________________________________________ Post-injury average weekly gross $688.36 The Administrative Law Judge's opinion stated:
I find the claimant to be a motivated individual who is understandably concerned about what he felt was a promising future with this company prior to his injury. The employer has returned him to work, but not at full time wages and refuses to even consider rehabilitation to explore transferrable skills. The claimant's permanent foot drop, pain and numbness in his left leg would certainly be a hindrance in the job market and he is concerned about the possibility of re-injury.
The Administrative Law Judge concluded that the claimant suffered a loss of earning capacity, and awarded him wage loss disability of 30% in addition to his permanent impairment rating of 10% for a total award of 40% in permanent partial disability benefits.
The wage loss factor is the extent to which a compensable injury has affected the claimant's ability to earn a livelihood. The Commission is charged with the duty of determining disability. Cross v. Crawford County Memorial Hosp., 54 Ark. App. 130, 923 S.W.2d 886 (1996). In determining wage loss disability, the Commission may take into consideration the worker's age, education, work experience, medical evidence and any other matters which may reasonably be expected to affect the worker's future earning power. Such other matters are motivation, post-injury income, credibility, demeanor, and a multitude of other factors. Glass v. Edens, 233 Ark. 786, 346 S.W.2d 685 (1961); City of Fayetteville v. Guess, 10 Ark. App. 313, 663 S.W.2d 946 (1984). Curry v. Franklin Electric, 32 Ark. App. 168, 798 S.W.2d 130 (1990).
However, Ark. Code Ann. § 11-9-522(B) states that a claimant shall not be entitled to permanent partial disability benefits in excess of the permanent physical impairment benefits "so long as an employee, subsequent to his injury, has returned to work, . . . at wages equal to or greater than his average weekly wage at the time of the accident." The burden rests with respondents to prove claimant's employment at wages equal to or greater than his average weekly wage at the time of accident. Ark. Code Ann. § 11-9-522(C).
The evidence in this case demonstrates that at the time of the hearing the claimant had returned to work at an average weekly wage equal to or greater than that which he was earning at the time of his accident. Prior to his injury the claimant's average weekly gross was $518.64; after the injury it was $688.36. The respondents have met their burden of proof as required by Ark. Code Ann. § 11-9-522(C). It would require conjecture and speculation to conclude that the claimant's wages will decrease in the future. Conjecture and speculation, even if plausible, cannot take the place of proof. Ark. Dept. of Correction v. Glover, 35 Ark. App. 32, 812 S.W.2d 692 (1991). Dena Construction Co. v. Herndon, 264 Ark. 791, 575 S.W.2d 155 (1970). However, under Belcher v. Holiday Inn, 43 Ark. App. 157, 868 S.W.2d 22 (1993), the claimant's current earning status is not a permanent bar to his entitlement to wage loss benefits, and if at some point his hours are scaled back, he could then reassert his claim.
The dissenting opinion argues that defining the term "wage" as used in Ark. Code Ann. § 11-9-522(B) as meaning only an employee's hourly rate of pay multiplied by the number of hours worked is too limited, and suggests that in applying this statute the Commission should take into account "all measurable elements of compensation." The dissent bases it's argument on "an analysis of the economic realities of the compensation arrangement between the claimant and the respondent employer [which] indicates that other elements of compensation exist . . . [that] are readily quantifiable." The dissent concedes that no precedent exists to support its position.
For reasons set forth in the concurring opinion, we find that the factual and legal arguments raised by the dissent were not timely raised before the Administrative Law Judge and preserved for appeal.
However, if the dissent's arguments had been timely raised, the argument in favor of expanding the breadth of the definition of wages is not supportable under Ark. Code Ann. § 11-9-704(c)(3) (Repl. 2002), which states that we are to strictly construe the Workers' Compensation statutes. Strict construction requires that nothing be taken as intended that is not clearly expressed. Edens v. Superior Marble Glass, 346 Ark. 487, 58 S.W.3d 369 (2001). The doctrine of strict construction is to use the plain meaning of the language employed. Wheeler Const. Co. v. Armstrong, 73 Ark. App. 146, 41 S.W.3d 822 (2001). Where the language of a statute is unambiguous, we determine legislative intent from the ordinary meaning of the language used. Leathers v. Cotton, 332 Ark. 49, 52, 961 S.W.2d 32 [ 961 S.W.2d 49], 34 (1998).
Ark. Code Ann. § 11-9-102 sets forth the definitions of terms used in the Workers' Compensation chapter of the Arkansas Code. This section states at the outset that it is defining the terms, "As used in this chapter, unless the context otherwise requires." The context of § 11-9-522 does not require us to apply another meaning to the term wage. Further, in the case Cook v. Graves Oil Company, Full Workers' Compensation Opinion filed August 1, 2000, Claim Number E513080, the Commission specifically applied the § 11-9-102 definition of wage to § 11-9-522(B). Wages are defined at § 11-9-102(19) as "the money rate at which the service rendered is recompensed . . . including the reasonable value of board, rent, housing, lodging, or similar advantage received from the employer and includes the amount of tips required to be reported. . . ." Under the doctrine of strict construction, the plain and unambiguous meaning of the term wage is therefore the money rate at which an employee is being compensated for his services. If the legislature had intended for wage to mean all quantifiable compensation, they surely could have drafted a broader definition to that effect.
Prior Commission opinions serve as precedent for defining the term wage as used in Ark. Code Ann. § 11-9-522(B) as meaning only an employee's hourly rate of pay multiplied by the number of hours worked. In Raines v. Riceland Foods, Full Workers' Compensation Opinion filed June 12, 1998, Claim Number E513390, Riceland Foods asserted that Raines was barred by § 11-9-522(B). The Commission denied this argument after calculating that the claimant earned an average weekly wage prior to her injury of $354.00, based on a 60.5 hour work week and a regular wage of $5.00 per hour and an over-time wage of $7.50 per hour.
We must also note our disagreement with the dissent's analysis of the testimony of Mr. Brooks regarding the accrual of benefits by part-time employees. Mr. Brooks testified, "as far as full time versus part time, part time basically accrues things in half the time. Tuition reimbursement is half the rate, vacation accrual is half the rate. . . ." The dissent interprets this statement as meaning that a full-time employee would earn, for example, one-fifth of an hour vacation pay for every hour worked, and that a part-time employee would only earn one-tenth of an hour for every hour worked. However, Mr. Brooks's statement could also be interpreted as meaning that both full-time and part-time employees earn one-fifth of an hour vacation pay for every hour worked, but that because a part-time employee is normally only working half the hours of a full-time employee, the part-time worker would only accrue leave time at half the rate. Under this second possible interpretation, the claimant would not lose these non-wage benefits unless his hours were actually cut to below the average hours he was working as a full-time employee. Either way, neither interpretation is clearly established by the evidence, and would require conjecture and speculation. Conjecture and speculation, even if plausible, cannot take the place of proof. Ark. Dept. of Correction v. Glover, 35 Ark. App. 32, 812 S.W.2d 692 (1991). Dena Construction Co. v. Herndon, 264 Ark. 791, 575 S.W.2d 155 (1970).Arkansas Methodist Hospital v. Adams, 43 Ark. App. 1, 858 S.W.2d 125 (1993). However, the point is ultimately moot given the established definition of the term wages.
The dissent cites Taylor v. Lubritech, 75 Ark. App. 68, 54 S.W.3d 132 (2001), and summarizes its holding as being that for the purposes of determining indemnity benefits, elements of compensation such as vacation pay and insurance should not be considered in the computation of average weekly wage, when the employee received such benefits regardless of the number of hours worked. This is apparently cited in support of the dissent's argument that the respondents failed to prove that the claimant had returned to work at wages equal to or greater than his average weekly wage, which was based on the assumption that Mr. Brooks' testimony meant that the claimant's accrual of vacation benefits were not based on the hours he actually worked but was based solely on his classification as a part-time employee. As stated previously, the evidence simply does not support this assumption; and because Taylor applies to indemnity benefits for piece-rate workers, its holding is not on point.
The language of Arkansas Code Annotated section § 11-9-522(B) is plain and unambiguous. The respondent must only prove that the claimant has not suffered a loss in his average weekly wage. Based on our de novo review of the entire record, the Full Commission finds that the claimant has been barred by the operation of Ark. Code Ann. § 11-9-522(B) from an award wage loss benefits at this time. The Full Commission therefore reverses the opinion of the Administrative Law Judge. This claim is denied and dismissed.
IT IS SO ORDERED.
_____________________________ JOE E. YATES, Commissioner
Chairman Coffman concurs.
CONCURRING OPINION
I concur in the principal opinion's finding that the claimant is not at this time entitled to permanent partial disability benefits in excess of his permanent physical impairment because a preponderance of the evidence in the record establishes that at the time of the hearing, the claimant had returned to work at wages equal to or greater than his average weekly wage at the time of his accident. I write separately to express my observations on the dissent's argument that the respondents have not met their burden of proof pursuant to Ark. Code Ann. § 11-9-522(b)(2) in showing that the claimant's average weekly wage subsequent to his compensable injury is equal to or greater than his average weekly wage prior to the compensable injury.
As I understand the dissent's argument on appeal, the dissent asserts that the term "wages" as defined in Ark. Code Ann. § 11-9-102(19) includes vacation pay, tuition reimbursement, short-term disability, and long-term disability benefits. The dissent seems to argue that we have erred as a matter of law in failing to take these benefits into account in determining whether or not the claimant has returned to work at wages equal to or greater than his average weekly wage at the time of the accident.
As a starting point, it appears to me that the dissent has impermissibly raised this new legal and evidentiary argument on the claimant's behalf for the first time on appeal, and that the claimant made no allegation before the Administrative Law Judge or the Full Commission that his "wages" for purposes of determining his average weekly wage should include some factor for vacation pay, tuition reimbursement, short-term disability, or long-term disability benefits. In this regard, I note the following exchange between the attorneys at the Administrative Law Judge at the start of the hearing:
THE HONORABLE ELIZABETH HOGAN, Administrative Law Judge: This is a full Hearing on Claim number F011598. The Claimant is Rick Hazen. The Employer is Federal Express. The insurance carrier is Sedgwick Claims Management. The Claimant is present today and represented by his attorney, Gary Davis. The Respondents are represented by Curt Nebben.
This claim has been the subject of a previous conference and order, and we're here today on the issues of vocational rehabilitation, loss of earning capacity, and attorney's fees. Is that correct?MR. DAVIS: Yes.
JUDGE HOGAN: I have the parties' prehearing questionnaires and exhibits. Is there anything else before we get started?MR. DAVIS: No, Your Honor.
MR. NEBBEN: No, Your Honor.
JUDGE HOGAN: Were you all able to stipulate to the wage pre-injury and post-injury wages?
MR. NEBBEN: Judge, I have in my prehearing questionnaire Three Sixty-Three ($363.00) and Two Seventy-Two ($272.00), and I'll be honest with you, we provided you the fifty-two weeks prior to the injury, and I didn't go back and double check that, to be honest with you.
MR. DAVIS: This is correct. It's Twenty-Eight Thousand Three Hundred and Thirty Dollars and Forty-Three Cents ($28,330.43) for a year. That salary is true.
JUDGE HOGAN: Somewhere or another in the prehearing order I had that he had a pre-injury average weekly wage of Five Hundred and Forty-Eight Dollars and Eight-Two Cents ($548.82) and a post-injury wage of Five Hundred and Eleven Dollars and Eleven Cents ($511.11). I'm not sure . . .
MR. DAVIS: It's a little more complicated than that, Your Honor. Mr. Nebben and I are going to be fleshing out the hours and such, and the guarantee of hours based on Mr. Hazen's new status as a part-time person versus his previous status as a full-time person and what that means.
JUDGE HOGAN: And so what are you going to contend is the correct wage rate?
MR. DAVIS: That's a little hard to say. I'm going to agree with whatever records that Mr. Nebben has provided as being accurate with respect to what they reflect that Mr. Hazen has been paid, but Mr. Hazen has been paid from the time of his — until he returned to work this year up recently, he has been paid essentially thirty-five, or so, hours a week, but his guaranteed is only seventeen and a half hours as a part-time person. You're going to have testimony today, Your Honor, to the effect that the reason that Mr. Hazen has been able to work in excess of seventeen and a half hours up until recently is only because he was filling in for people who were taking vacation, and in fact, it is likely that he is soon to be, in fact, working seventeen and a half hours or so.
JUDGE HOGAN: Okay. So you don't have any dispute with the wage records provided?MR. DAVIS: No.
JUDGE HOGAN: What we're going to be arguing about is the availability of hours?MR. DAVIS: Essentially, yes.
JUDGE HOGAN: Okay.
For my part, I fail to see anywhere in the above discussion, or in the prehearing order, where the claimant's attorney has ever argued that vacation pay, entitlement to tuition reimbursement, short-term disability, and long-term disability benefits, and the value thereof, were ever a hearing issue for purposes of calculating the claimant's average weekly wage. Consequently, I find that this legal and evidentiary issue was never properly raised before the Administrative Law Judge and preserved for appeal. Therefore, I find that the dissent's entire argument is moot.
If I am incorrect, and the dissent's argument was somehow timely raised before the Administrative Law Judge and preserved for appeal in a manner that I am not aware of, then I next point out that my research indicates the Arkansas Supreme Court has never addressed the issue as to whether or not vacation pay, tuition reimbursement, short-term disability, and long-term disability benefits are "wages" within the meaning of Ark. Code Ann. § 11-9-102(19). Likewise, as far as I can tell, the Arkansas Court of Appeals has never determined whether vacation pay or tuition reimbursement might be considered "wages" for an hourly employee. See generally, Taylor vs. Lubritech, 75 Ark. App. 68, 54 S.W.3d 132 (2001);Tabor v. Levi Strauss Co., 33 Ark. App. 71, 801 S.W.2d 311 (1990). However, I do understand the Arkansas Court of Appeals in Tabor v. Levi Strauss Co., supra, to have concluded, as a matter of law, that employer contributions to medical, life, and disability insurance are not "wages" within the meaning of Ark. Code Ann. § 11-9-102(19). Consequently, the dissent's argument, that employer contributions to insurance payments should be considered "wages," appears to be contrary to the holding in Tabor v. Levi Strauss Co.
Moreover, as even the dissent appears to concede, the record before us is also devoid of any proof of the value of the vacation pay, tuition reimbursement, short-term disability, and long-term disability benefits which the dissent seeks to characterize as "wages" on appeal. Because the record is devoid of any proof of the value of these fringe benefits, and in light of the essentially undisputed evidence that the claimant has so far gone back to work at a salary that exceeds his salary at the time of the accident, I concur that the preponderance of the evidence in the record indicates that the claimant is not entitled to permanent partial disability benefits in excess of his permanent physical impairment benefits at this time.
______________________________ ELDON F. COFFMAN, Chairman
Commissioner Turner dissents.
DISSENTING OPINION
I must respectfully dissent from the decision of the majority reversing the decision of the Administrative Law Judge awarding the claimant wage loss benefits.
In reaching its decision that claimant is not entitled to wage loss benefits, the majority relies upon the provisions of Ark. Code Ann. § 11-9-522(b)(2), which essentially state in relevant part that the claimant is not entitled to wage loss benefits if he or she has returned to work "at wages equal to or greater than his average weekly wage at the time of the accident." The majority further states that the respondents have met their burden pursuant to subsection (c)(1) to prove that the claimant is currently employed at wages equal to or greater than his average weekly wage at the time of the accident.
I agree with the majority that the data available as of the date of the hearing indicates that the claimant had not at that time suffered any decrease in the amount of his weekly "gross pay," if that phrase is defined as the element of compensation encompassing only the employee's hourly rate of pay multiplied by the number of hours worked. I further agree with the majority that if circumstances change in the future, such that the claimant's average weekly "gross pay" as a dispatcher falls below his former average weekly "gross pay" as a courier, then he will then be able to further assert a claim for wage loss disability benefits. Mr. Emmanuel Brooks, a manager in respondent employer's Little Rock area, testified that as a courier, the claimant was classified as full-time, but that as a dispatcher, he is classified as part-time. He further testified that as a part-time dispatcher, the claimant is guaranteed only 17.5 hours of work per week, whereas claimant was guaranteed 35 hours per week as a full-time courier. Mr. Brooks further acknowledged that there is no guarantee that the claimant would continue to receive the number of hours that he was currently receiving as a dispatcher as of the date of the hearing. So, while I agree that it is premature for the claimant to assert a claim for wage loss benefits on the theory that claimant's average weekly wage may at some point in the future fall below his average weekly "gross pay" due to a "cut" in the number of hours he works, I note that the evidence indicates that it is quite possible that such a decrease may occur in the future, and claimant will then have the opportunity to further assert a claim for wage loss benefits.
However, I must nevertheless ultimately disagree with the majority's determination that the respondents met their burden of proof pursuant to Ark. Code Ann. § 11-9-522(b)(2) in showing that the claimant's average weekly gross wage subsequent to the compensable injury is equal to or greater than his average weekly gross wage prior to the compensable injury. I believe the majority has accepted a definition of the term "wages" as it is used in this section which is too limited and does not adequately take into account all measurable elements of compensation.
The majority correctly states that the respondents produced un-controverted evidence to the effect that at the time of his injury, claimant earned $13.37 per hour as a courier, and that currently, he earns $14.33 per hour as a dispatcher. There was also uncontroverted evidence offered by respondents which indicated that for the four-week period prior to the claimant's injury, the claimant earned an average weekly "gross pay" of $518.64 as a courier, while for the four-week period prior to the hearing, claimant earned an average weekly "gross pay" of $688.36.
However, the $518.64 figure and the $688.36 figure take into account only the claimant's hourly rate of pay multiplied by the number of hours worked. If the phrase "average weekly wage," as used in Ark. Code Ann. § 11-9-522 and as applied to an hourly employee, is defined as "hourly rate of pay times the number of hours worked," then I would agree with the majority that the respondents successfully proved that the claimant's "average wage" at the time of the hearing was equal to or greater than his "average wage" at the time of the accident. Although the definition of the term "wage" as used in this section, and as applied to an hourly employee, appears to be an issue of first impression, an analysis of the economic realities of the compensation arrangement between the claimant and respondent employer indicates that other elements of compensation exist which, though they do not directly appear as a number on the claimant's weekly paycheck, are readily quantifiable and equally as attributable on a per-hour basis to the hours worked during the pay period as the claimant's "gross pay" for the pay period.
The majority notes that at the time of his injury, claimant was classified as a full-time employee, whereas he is currently classified as a part-time employee. The majority further notes that according to the testimony of Mr. Brooks, part-time employees accrue certain benefits at half the rate which full-time employees accrue them. The evidence also indicated that both in his former job as a courier and in his current job as a dispatcher, that these benefits accrue on a per-hour basis.
Vacation pay was one of the benefits which was identified by Mr. Brooks as accruing at only half the full-time rate for part-time employees. When an employer pays an employee for time not actually worked, i.e., vacation time, the employer has in substance given the employee additional compensation for past services rendered by the employee. For example, assume that an employee's hourly rate is $20 per hour, and that for every hour actually worked, the employee accrues one fifth of an hour as vacation pay. This vacation pay is a right of the employee at some time in the future to receive pay from the employer for time not actually worked. Specifically, for every hour the employee works, he has the right to collect from the employer $20, plus $4 as vacation pay. While the actual vacation pay funds may not be received by the employee until some time later, the fact remains that the $2 in vacation pay earned by the employee is attributable to the hour actually worked by the employee; it is just as attributable to the hour worked as the $20 in "gross pay."
Assume further that an hourly employee's vacation pay accrual rate is cut from one-fifth of an hour to one-tenth of an hour. Therefore, the employee now earns only $2 in vacation pay for every hour worked. There is no question but that this employee has thus suffered a decrease in hourly compensation.
In addition to vacation pay, Mr. Brooks testified that entitlement to tuition reimbursement, short-term disability, and long-term disability benefits accrues at only half the rate of full-time employees for part-time employees. I will concede that these other categories of benefits are more difficult to quantify because the likelihood that the claimant will avail himself of them at some point in the future must be taken into account. However, although it may be difficult to place a precise dollar amount on certain categories of benefits due to their contingent nature, the fact remains that as a part-time employee, the claimant accrues them at only half the rate he accrued them as a full-time employee. Therefore, whatever their dollar value, it is undeniable but that currently the claimant currently receives less of that dollar value than he did as a full-time employee.
However, in any event, the ultimate question is whether the respondents met their burden of proof pursuant to Ark. Code Ann. § 11-9-522(c)(1) in showing that the claimant was employed subsequent to the compensable injury at an average weekly wage equal to or greater than his average weekly wage at the time of the accident. The evidence indicated that claimant currently earns 96 cents more per hour in "gross pay" as a dispatcher than he did in his former job as a courier. Therefore, in order for it to be determined that the claimant has actually suffered no actual decrease in compensation since his compensable injury, it must be the case that his loss of benefits is worth 96 cents per hour or less. Though the respondents failed to produce any evidence of the actual rates at which the various benefit categories accrue, it would seem to be probable that the claimant's loss in vacation pay alone would be equal to or greater than 96 cents per hour. But in any event, the respondents' failure to present any evidence as to actual accrual rates causes them to fail to meet their burden of proof in proving that claimant's current average weekly wage is equal to or greater than his average weekly wage at the time of the accident.
I note that our workers' compensation statute defines "wages" at Ark. Code Ann. § 11-9-102(19). Though it appears that the courts have never been called upon to ascertain the breadth of the term "wages" as applied to readily quantifiable and variable elements of compensation of an hourly worker, I find case law construing Ark. Code Ann. § 11-9-102(19) to be nevertheless instructive. I find no case precedent which would direct us to define the term "wages" in a way so narrow as to exclude readily quantifiable and identifiable elements of compensation which an hourly employee accrues per hour worked.
Most recently, in Taylor v. Lubritech, 75 Ark. App. 68, 54 S.W.3d 132 (2001), the Court of Appeals was called upon to construe the breadth of the term "wages" for purposes of calculating the average weekly wage for purposes of ascertaining the amount of indemnity benefits to which the claimant was entitled. The court determined that elements of compensation such as vacation pay and insurance should not be considered in the computation of the claimant's average weekly gross wage. The court made it clear that this determination depended upon the fact that the compensation arrangement between claimant and respondent employer was such that the claimant received his vacation pay and insurance benefits regardless of the number of hours he worked. See Taylor, 75 Ark. App. at 71.
The majority asserts that Taylor is "not on point" in the current case because it involved a "piece-rate worker" instead of an hourly employee. To the extent that the majority is asserting that Taylor does not operate to preclude certain fringe benefits such as vacation pay from the definition of "wages" in the case of an hourly employee, I agree with the majority. However, I do not agree with the assertion of the majority that Taylor has no relevance to the present case. As stated previously, the operative factor as to exclusion of the fringe benefits for the "piece-rate worker" involved in that case was the fact that the worker was entitled to the fringe benefits regardless of the number of hours worked. I find this case to stand for the proposition that the definition of "wages" should include all readily quantifiable elements of compensation which are variable with the number of hours worked.
I note that there is language in the majority opinion which seems to indicate that the majority interprets the above statements as an assertion on my part that a different definition of wages other than the one codified at Ark. Code Ann. § 11-9-102(19) should apply when defining the term for purposes of Ark. Code Ann. § 11-9-522(B). I would clarify that such is not my position; my position is that the definition of wages at § 11-9-102(19) includes such readily quantifiable elements of compensation of an hourly employee which vary with the number of hours worked by the employee.
I also note that the majority opinion states that I "concede that no precedent exists to support [my] position." While I concede that the courts have not been called upon to address the precise issue involved in this case, I find the case precedent cited above to militate in favor of the interpretation of Ark. Code Ann. § 11-9-102(19) stated above.
The determination of what constitutes "wages" should ultimately consist of those elements of compensation which are lost by the employee as a result of being off work due to the compensable injury, or for which, as in the current case, the claimant suffers a decrease due to the injury. It is only logical to exclude from the definition of "wages" any components of compensation which are unaffected by the claimant's being off work or switching to different work due to the compensable injury. However, to the extent that the component of compensation is eliminated or decreased as a result of the compensable injury, and can reasonably be quantified, it should be considered in the calculation of "wages" for purposes of the workers' compensation statute. The very purpose of indemnity benefits are to compensate the claimant for lost capacity to earn wages as a result of the compensable injury. In light of this observation, when the average weekly wage upon which indemnity benefits will be based, or the average weekly wage before and after the compensable injury, is determined, the ultimate issue is how much the claimant has lost on a weekly basis as a result of the compensable injury. Thus, other components of compensation besides "gross pay," such as vacation and insurance benefits, should be considered as an element of "wages" to the extent they are eliminated or decreased as a result of the compensable injury. I find no case precedent which would thwart this economic reality.
The majority opinion asserts that a strict construction of the definition of "wages" set forth at Ark. Code Ann. § 11-9-102(19) cannot in any event include elements of compensation other than the claimant's rate per hour times the number of hours worked. The majority characterizes an inclusion of such other readily quantifiable elements of compensation as "expanding the breadth of the definition" of wages. I find nothing either in the plain language of this section or in the case law interpreting this section which would so limit the definition of "wages." To the contrary, the section itself specifically enumerates certain other readily quantifiable elements of compensation which are included within the definition of "wages." Furthermore, contrary to the implication of the majority, case law construing Ark. Code Ann. § 11-9-102(19) has clearly interpreted the definition to encompass more than the hourly rate of pay times the number of hours worked. For example, in Eckhardt v. Willis Shaw Express, Inc., 62 Ark. App. 224, 970 S.W.2d 316 (1998), the Court of Appeals determined that the Commission improperly excluded the claimant's per diem payments from the calculation of his wages.
Additionally, the majority opinion asserts that the testimony of Mr. Brooks to the effect that benefits for part-time employees accrue at half the rate of accrual for full-time employees was susceptible to more than one reasonable interpretation. Essentially, the majority concludes that Mr. Brooks could have meant either that part-time employees earn ½ of a unit of fringe benefits per hour worked, whereas full-time employees earn one unit of fringe benefits per hour worked, or alternatively that since part-time employees on average only work half as much as full-time employees, they earn roughly half the amount of fringe benefits as full-time employees, although both classes earn fringe benefits at the same rate. For multiple reasons, I find it highly unlikely that Mr. Brooks meant the latter interpretation. First, such an interpretation assumes that respondent employer's part-time workers average working roughly half the number of hours that its full-time workers work. I find no evidence in the record to support such an assumption. Second, it is obvious both from the everyday meaning of the language used by Mr. Brooks and from the context in which the testimony occurred that Mr. Brooks intended the first interpretation. The relevant testimony was as follows:
Q: There was some discussion about any benefits you would lose from a part-time employee at Federal Express versus a full time. Would you please tell — are you aware of those, sir, in your job position?
A: Yes.
Q: Could you please tell the Commission what those are?
A: Not being an expert, but as far as full time versus part time, part time basically accrues things in half the time. Tuition reimbursement is half the rate, vacation accrual is half the rate, short-term disability and guaranteed minimums are half.
See Hearing Transcript, page 51 (emphasis added). The clear implication of Mr. Brooks' testimony was that part-time workers only earn half as much fringe benefits per hour worked as do full-time workers. Moreover, the use of the term "rate" by Mr. Brooks clearly indicates that he was not referring to the total quantity of fringe benefits earned by part time workers versus full time workers, but rather the relative proportion of fringe benefits to hours worked of part time versus full time workers.
In sum, I find that the respondents failed to meet their burden of proof pursuant to Ark. Code Ann. § 11-9-522(c)(1) in proving that subsequent to his compensable injury, the claimant was employed at wages equal to or greater than his average weekly wage at the time of the accident. I agree with the majority that a claim for wage loss benefits on the theory that claimant's hours may be "cut" in the future, thus lowering his average weekly gross wage, is premature, but that claimant will have a claim for wage loss benefits in the future if such a "cut" occurs. However, I find that due to the fact that claimant's current classification as a part-time employee causes him to accrue certain benefits at only half the rate he accrued them as a full-time employee, the respondents have failed to meet their burden of proof pursuant to Ark. Code Ann. § 11-9-522(c)(1) to show that the claimant was employed subsequent to the accident at an average weekly wage equal to or greater than his wages at the time of the accident.
Finally, I will address the argument in the Concurring Opinion that the claimant has never asserted before the Commission that his loss of benefits constitutes wage loss, and thus that I have "impermissibly raised this new legal and evidentiary argument on the claimant's behalf for the first time on appeal." Initially, I would take issue with the assertion in the Concurring Opinion that the claimant has not raised this theory. I find that the claimant's general pre-hearing contention that he has returned to work at a wage significantly less than his pre-injury wage to encompass any "legal or evidentiary" theory under which this contention may be proven. Furthermore, I find nothing in the claimant's pre-hearing contentions which would indicate that the claimant intended to remove the issue of his loss of benefits from litigation. I find it particularly noteworthy that the claimant and respondent did not stipulate as to the average weekly wage at the time of the accident and at the time of the hearing. This lack of stipulation indicates to me that the claimant wished to leave all his options to prove a decreased average weekly wage open. Additionally, and even more significantly, the hearing testimony indicates that this issue was fully developed by the claimant at hearing. The claimant's attorney specifically elicited the following testimony from claimant at hearing:
Q: Other than the hours, which obviously the difference between seventeen and a half and thirty-five is significant, what other than that hourly differentiation would there be between a person who is full time versus a person who is part time?
A: Well, you lose some of your benefits
Q: What kind of benefits?
See Hearing Transcript, page 24. Subsequently, the claimant's attorney continued to ask the claimant questions regarding his loss of benefits. Furthermore, as noted above, questions regarding the claimant's loss of benefits were also asked of Mr. Brooks, the respondents' witness. Therefore, I find that the claimant did indeed assert this theory at the hearing level. It would have been pointless for the claimant to produce testimony on this point if indeed it was not his intent to assert his loss of benefits as a basis for overall claim of wage loss. I also observe that the Administrative Law Judge noted the fact that the claimant's benefits have been adversely affected by his change from full-time to part-time status. See Opinion of the Administrative Law Judge, page 2. Thus, it must have been the understanding of the Administrative Law Judge that this theory was asserted by the claimant at hearing. And, in any event, this issue was fully developed at the hearing. As such, the parties had the full opportunity to litigate the issue, and indeed did so. As a result, it would seem to me to be improper for the Full Commission to fail to consider this theory on appeal.
For the aforementioned reasons, I respectfully dissent.
______________________________ SHELBY W. TURNER, Commissioner