CLAIM NO. E502375
Before the Arkansas Workers’ Compensation Commission
OPINION FILED JUNE 1, 1998
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by EDDIE H. WALKER, JR., Attorney at Law, Ft. Smith, Arkansas.
Respondent represented by PHILLIP CUFFMAN, 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 September 3, 1997 finding that claimant failed to prove by a preponderance of the evidence entitlement to benefits pursuant to Ark. Code Ann. § 11-9-505(a) and that claimant has failed to prove by a preponderance of the evidence entitlement to benefits pursuant to Ark. Code Ann. § 11-9-505(b) for rehabilitation. Based upon our de novo review of the entire record, we find that claimant has failed to meet her burden of proof. Therefore, we find that the decision of the Administrative Law Judge must be affirmed. [3] Claimant contends that as a result of her admittedly compensable injury of January 17, 1995, she is entitled to benefits pursuant to Ark. Code Ann. § 11-9-505(a) since respondent could have made work available for her but failed to do so in violation of this provision. Claimant further contends that her earning capacity has been substantially reduced and that vocational rehabilitation should be ordered pursuant to Ark. Code Ann. § 11-9-505(b). Conversely, respondents contend that claimant has received all appropriate benefits and that claimant is neither entitled to benefits under Ark. Code Ann. § 11-9-505 or permanent disability benefits. After reviewing the evidence impartially, without giving the benefit of the doubt to either party, we agree with respondent. [4] After sustaining her compensable injury on January 17, 1995, claimant was released to return to light-duty work on numerous occasions. The evidence is sketchy, at best, regarding the dates on which claimant returned to work in a light-duty capacity. However, the evidence does show that claimant was held off work from her injury in January of 1995 through sometime in April of 1995 at which time she was released to light-duty. A light-duty job was created specifically for claimant which she performed for approximately three and a half months. After it began to appear as if this light-duty job, created specifically for claimant, was becoming more of a permanent job, complaints were lodged by union members that this job was in violation of the union agreement due to claimant’s lack of seniority. Consequently, claimant was removed from this job, and this position was eliminated. Claimant was then placed in a position in the tube shop where she only worked for a month and a half before she complained of pain in her back. The evidence reflects that on at least one occasion, claimant was returned to her original job she was performing at the time she sustained her injury. However, claimant complained that this original job was exacerbating her back pain, thus, claimant was removed from this position and sent home. From October of 1995 through April of 1996 claimant was off work. In April of 1996 claimant returned to work for respondent and was again placed in the tube shop. After only three days of work, claimant complained that this job exacerbated her back pain. Thus, claimant was removed from this position. [5] The record reflects that in June of 1996 claimant was evaluated by Dr. Tom Cheyne. Dr. Cheyne released claimant to return to work with a permanent restriction of no lifting over 20 pounds with no repetitive bending. After receiving these permanent restrictions, claimant returned to respondent but was advised that there was no permanent work available within the restrictions placed upon her. [6] The record also reflects that due to personal medical problems, not related to claimant’s compensable injury, claimant was removed from a workers’ compensation status and placed on a sick leave status on two separate occasions. At the time claimant attempted to return to work in June of 1996, she was on a sick leave status. Employees in this status are required to notify the company every 30 days of their medical condition. After failing to comply with this requirement, claimant was terminated in August of 1996. [7] Claimant contends that she is entitled to benefits pursuant to Ark. Code Ann. § 11-9-505(a)(1) which provides:
[8] In order to establish her claim for additional benefits under this section, claimant has the burden of proving that the following four requirements are met:Any employer who without reasonable cause refuses to return an employee who is injured in the course of employment to work, where suitable employment is available within the employee’s physical and mental limitations, upon order of the Commission, and in addition to other benefits, shall be liable to pay the employee the difference between benefits received and the average weekly wage lost during the period of such refusal, or for a period not exceeding one year.
(1) That she sustained a compensable injury;
(2) That suitable employment within the claimant’s physical and mental limitations was available with her employer;
(3) That the employer refused to return her to work;
[9] See Edward Torrey v. City of Ft. Smith, 55 Ark. App. 226, 934 S.W.2d 237 (1996). In Torrey, supra the Courts stated that:(4) That the employer’s refusal to return the claimant to work was without reasonable cause.
[10] After reviewing the evidence in this case, we are not persuaded that claimant has met her burden of proof showing that suitable employment was available within her physical limitations. As explained by Mark Kilpatrick, the human resource manager, injured employees cannot be placed in any job which becomes available. Mr. Kilpatrick explained:At a minimum Ark. Code Ann. § 11-9-505(a) requires that when an employee who has suffered a compensable injury attempts to re-enter the work force the employer must attempt to facilitate the re-entrance into the work force by offering additional training to the employee, if needed, and reclassification of positions, if necessary.
A. Correct; it is a very routine administrative matter that we would assess the recommended physical restrictions from a doctor and which is evaluated by the company doctor. We have a company nurse which assists in the evaluation of those conditions. We have individuals in human resources that are familiar with the physical requirements of the jobs they can potentially perform during the temporary period of time of recovery. Then, once we determine which jobs they can possibly be assigned to, then we begin to look at the seniority components; and if there are seniority issues, then we discuss those issues with the union officials; and on a number of occasions, we are able to make temporary placements, even though that there may be some other seniority considerations; they are usually short term; and after a period of weeks if we are still unable to correct that, then we usually have to back off of it and do a more permanent placement. Now, a permanent placement, under the terms of the labor agreement, would require us to actually take the person who is on restricted duty and have them apply their seniority through about a 10 step seniority reduction process, and each step of that would call for the person that we are starting with on the entry or the restricted duty to see if they have enough seniority to displace some other employee out of a job that they can perform within their restrictions. If they don’t have enough seniority and we go all the way through the plant, all the way down to whether this person works or whether somebody with less seniority would be laid off, then we get down to that point; and based upon the seniority, one of those two things would happen. So, it is fairly complicated when you get into the seniority part.
Q. Is it common that, in situations of this sort, whether with Ms. Ball or any restricted duty employee, that collective bargaining considerations come into play?
A. They would come into play in all of the placements.
[11] Ark. Code Ann. § 11-9-505(a)(ii) (Repl. 1996) provides:[12] Claimant has presented no evidence that there were jobs available with respondent within the permanent restrictions placed upon her by Dr. Cheyne. In fact, the evidence shows that during her healing period, respondent attempted to accommodate claimant and created a position within claimant’s physical limitations but, due to the collective bargaining agreement and claimant’s lack of seniority, this job was eliminated after complaints were lodged. In Maria Jacobo v. Simmons Industries, Full Commission Opinion Aug. 19, 1997 (E410386) we stated:In determining the availability of employment, the continuance of business of the employer shall be considered, and any written rules promigated by the employer with respect to seniority or the provisions of any collective bargaining agreement with respect to seniority shall control.
[13] The reasoning and rationale we applied in Jacobo is applicable to the present claim. Claimant seems to suggest that respondent is obligated to return her to work in a permanent position in an otherwise nonexistent job classification merely because respondent created such light-duty work for injured employees during their healing period. Section 505(a) does not require an employer to create a permanent position for a claimant merely because claimant wants to continue working. If there are no jobs available within the permanent restrictions, respondent is not obligated to create a permanent light-duty position merely because it creates temporary light-duty positions for injured employees who are under temporary restrictions. As evidenced by this case, creating a permanent light-duty position runs afoul of the collective bargaining agreement between respondent and the union. Respondent, in this case, should not be punished with section 505(a) liability, when respondent made every effort to work with employees with temporary restrictions in an effort to facilitate re-entry into the work force, but is simply unable to create permanent positions due to the collective bargaining agreement. [14] Claimant seems to suggest that respondent acted unreasonably in refusing to return claimant to her original job after she was released to return to work with a 20 pound permanent restriction. However, as admitted by claimant during direct examination and again on re-direct examination, claimant was unable to perform her job duties without exacerbating her problems. Although claimant indicated on re-direct examination that on one particular occasion she worked in that position for a couple of hours before being removed from the job by the human resources department, we find that the preponderance of the evidence indicates that claimant was unable to hold this position for an extended period of time without causing exacerbation of her condition. Even if we are to assume that claimant’s testimony is credible with regard to working in that position for a couple of hours without any problem, the overwhelming evidence of record indicates that when claimant worked, for any extended period of time be it in the tube shop, or at her original job, she was unable to physically handle the work. The only job which claimant was physically capable of handling without causing an exacerbation of her problem was the job created specifically for claimant which she held for approximately three and a half months prior to problems arising with this job with regard to claimant’s seniority and the collective bargaining agreement. [15] Accordingly, after conducting a de novo review of the entire record, we find that claimant has failed to prove by a preponderance of the evidence that she is entitled to section 505 (a) benefits. In our opinion, claimant has simply failed to prove by a preponderance of the evidence that suitable employment within her physical and mental limitations was available and that respondents refusal to return claimant to work was without reasonable cause. [16] Furthermore, we find that claimant has failed to prove by a preponderance of the evidence that she is entitled to a rehabilitation evaluation pursuant to Ark. Code Ann. §11-9-505(b)(1). As noted by the Administrative Law Judge, claimant has not been assigned a permanent partial impairment rating. Claimant’s treating physician specifically stated that claimant’s physical condition does not warrant such a rating. Rehabilitation services or evaluations are only permissible once a claimant has proven entitlement to permanent disability benefits. Since claimant has not sustained a permanent impairment rating, claimant has failed to prove by a preponderance of the evidence that she is entitled to permanent disability benefits. Therefore, we find that the decision of the Administrative Law Judge denying such benefits should be affirmed. [17] Accordingly, for those reasons set forth herein, we find that the decision of the Administrative Law Judge should be and hereby is affirmed. [18] IT IS SO ORDERED.In reaching our decision, we note that respondent did create a light-duty, one arm job for claimant (picking chickens up off the floor) on two occasions to find something for the claimant to do. To the extent that the claimant asserts on appeal that respondent should be liable for not returning her to the job of picking chickens up off the floor when she requested to return to work, we do not understand the provisions of § 505(a) as interpreted by the Court in Torrey, supra, as placing the liability on the respondent that claimant suggests. While the Court indicated an employer’s potential duty to re-classify a position for the injured employee’s benefit, the Court in Torrey did not indicate that an employer was legally obligated to create an otherwise non-existent job classification when the claimant desires to return to work as claimant somewhat suggests.
ELDON F. COFFMAN, Chairman MIKE WILSON, Commissioner
[19] Commissioner Humphrey dissents. [20] DISSENTING OPINION[21] I must respectfully dissent from the opinion of the majority finding that claimant failed to demonstrate entitlement to benefits in accordance with Ark. Code Ann. § 11-9-505 (Repl. 1996). In my opinion, claimant has proven by a preponderance of the evidence that she is entitled to § 11-9-505 (a) benefits. Moreover, any determination with respect to § 11-9-505 (b) benefits is premature. Therefore, I would reverse the decision of the administrative law judge. [22] Claimant sustained an admittedly compensable injury on January 17, 1995. There is no dispute that claimant was not returned to work upon her final release from Dr. Cheyne in June of 1996. Claimant testified that when she was released to return to work by Dr. Cheyne on June 11, 1996, he imposed permanent lifting restrictions of ten to twenty pounds. Additionally, he advised claimant against engaging in repetitive lifting and bending. When claimant presented Dr. Cheyne’s note to Ms. Fout in June of 1996, she was informed that respondent employer would not permit her to return to work with any restrictions whatsoever. [23] Accordingly, the remaining questions are whether suitable employment within claimant’s restrictions existed, and if so, was respondent employer’s refusal to return claimant to work unreasonable? In my opinion, both questions should be answered affirmatively. [24] With regard to the first question, claimant candidly admitted that the first time she attempted to return to her original job, her efforts were unsuccessful. Subsequently, claimant was able to perform her job duties. The decision to remove claimant from her original duties was made entirely by Ms. Fout, and it was based on the belief that the job exceeded claimant’s restrictions. Claimant testified that Ms. Fout’s concern was that the job entailed pushing and pulling, which her physician had prohibited. [25] I am aware of Mr. Kilpatrick’s testimony in this regard. He testified that claimant made only one attempt to return to her former job, which was unsuccessful because of her complaints of pain. However, he has no direct knowledge with respect to the second attempt described by claimant. [26] Interestingly, respondents do not offer the testimony of Ms. Diane Fout, the respondent representative that observed claimant performing her original job duties without difficulty. [25] In my opinion, claimant’s testimony regarding the successful performance of her duties on her second try is credible. Clearly, testimony offered by an interested party is never deemed uncontradicted; however, this does not preclude the fact finder from determining that the testimony is credible or that such testimony must be dismissed if it is found worthy of belief. Ringier Am. v. Combs, 41 Ark. App. 47, 849 S.W.2d 1
(1993). [27] Respondents’ argue that claimant was unable to perform her original job in light of the restrictions imposed; therefore, their refusal to return claimant to work was not unreasonable. The following passage is contained in respondent’s brief:
[28] The foregoing argument suggests that claimant’s job entailed heavy lifting. However, the testimony of Mark Kilpatrick demonstrates that this is not an accurate characterization of claimant’s job requirements. On cross-examination, Kilpatrick testified that claimant’s job, which was referred to as W-56, involved lifting ten to twenty pounds. Additionally, Kilpatrick testified that most lifting responsibilities are shared by two people in claimant’s department. Moreover, on redirect examination, the following exchange took place between respondent’s counsel and Kilpatrick:While the claimant emphasized her ability to return to her original pre-injury position, the employer decided that this was not advisable based upon her restrictions. The law judge declared this employer’s decision “not unreasonable,” a conclusion validated by, if nothing else, the claimant’s description of her original injury. In a medical document examined by counsel for the claimant, the account of the injury is of an injured back attributed to “. . . pulling and lifting heavy units.” There was no testimony from the claimant that she expected this job to not involve the same requirements as before, and the heavy lifting would certainly be contrary to her medical restriction.
Q. Was it common in W-56 for the lifting requirements to exceed 10 to 20 pounds?
A. I don’t believe it would be common; no, sir.
[29] Further, claimant had every reason to believe that if she returned to her original job, heavy lifting would not be a prerequisite. Claimant’s unrebutted testimony in this case reveals that there was a problem on the assembly line which necessitated lifting several air-conditioners back onto the pallet so that they could reach her work station. Claimant, as well as her co-workers, informed their superiors about this problem. Unfortunately, claimant was injured before the problem could be corrected. Therefore, I find that respondent employer had work available within claimant’s restrictions. Indeed, the testimony of respondent’s own witness supports the conclusion that claimant’s original job was commensurate with her restrictions. The final element to be considered is whether respondent employer acted unreasonably. Claimant attempted to return to work upon her release from Dr. Cheyne in June of 1996. According to her testimony, Ms. Fout stated that until and unless the restrictions were lifted, claimant could not return to work. [30] In Torrey v. City of Fort Smith, 55 Ark. App. 226, 934 S.W.2d 237 (1996), the Arkansas Court of Appeals considered the meaning of reasonable cause:[31] It is true that respondent offered light duty to claimant on more than one occasion following her compensable injury. However, this practice ended. Moreover, respondents suspended medical treatment in April of 1996. Claimant stated that before going back to work in April of 1996, she asked Dr. Dudding what she should do in the event that she experienced further problems. According to claimant, Dr. Dudding advised her to seek medical treatment on her own. [32] Claimant testified that when she asked Ms. Fout for an explanation with respect to why she was not being returned to her original job, she was informed that it was because of the restrictions imposed. She stated that Ms. Fout explained further that respondent employer could not permit claimant to return to that job because of the risk of reinjury, or the continuation of the problems she had experienced. [33] In my view, it is simply inconsistent with the stated intent of Act 796 for an employer to consider whether there exists a risk of recurrence or reinjury in determining whether to return an injured worker to the work force. As the Court of Appeals pointed out in Torrey, “[i]n reviewing pertinent sections of the Act we find that the legislative intent that the injured worker be allowed to reenter the work force permeates the language of sections of the Act.” [34] I am persuaded that respondents refusal to return claimant to suitable work was unreasonable. Relying again on Torrey, I find that the refusal period continues, subject to the one-year statutory limitation, for as long as the employer remains in business. However, claimant’s benefits would cease in the event that she obtains employment at her pre-injury wages. [35] Moreover, any determination with respect to § 11-9-505“At a minimum Ark. Code Ann. § 1-9-505 (a) requires that when an employee who has suffered a compensable injury attempts to re-enter the work force the employer must attempt to facilitate the re-entry into the work force by offering additional training to the employee if needed, and reclassification of positions, if necessary.”
(b) benefits is premature. [36] For the foregoing reasons, I respectfully dissent. [37] PAT WEST HUMPHREY, Commissioner