BEAN v. SWIFT-ECKRICH, INC., 1996 AWCC 181

CLAIM NOS. E410663 E414789

LAURA BEAN, EMPLOYEE, CLAIMANT v. SWIFT-ECKRICH, INC., SELF-INSURED EMPLOYER, RESPONDENT

Before the Arkansas Workers’ Compensation Commission
OPINION FILED AUGUST 14, 1996

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

Claimant represented by JAY N. TOLLEY, Attorney at Law, Fayetteville, Arkansas.

Respondent represented by CURTIS L. NEBBEN, Attorney at Law, Fayetteville, Arkansas.

Decision of Administrative Law Judge: Modified.

[1] OPINION AND ORDER
[2] Respondent appeals the decision of the Administrative Law Judge filed on July 14, 1995 finding that claimant is entitled to temporary total disability benefits beyond August 23, 1994. A review of the evidence indicates that claimant unjustifiably refused employment subsequent to August 23, 1994. Such employment was suitable to her capacity and she is therefore not entitled to any temporary total disability benefits from August 23, 1994 until the date of her carpal tunnel release surgery. We modify the decision of the Law Judge and find that claimant should be awarded temporary total disability benefits from the date of her carpal tunnel release surgery until her release by Dr. James F. Moore.

[3] Claimant is 33 years old with an eleventh grade education. She has been employed by respondent on three separate occasions. Each time she terminated her employment for a different reason. In the present case, claimant testified that she began to have pain in her right hand on March 12, 1994. Although she contends that the pain reached a point that she had to seek medical treatment from Dr. Charles A. Ledbetter, the record establishes that the respondent, upon learning of claimant’s difficulties, accepted the right hand injury as compensable and put her on restricted duty. When Dr. Ledbetter first saw claimant, he prescribed Lodine and noted that claimant could return to her regularly scheduled job. However, he did say that if claimant continued to have problems after four to six weeks, she should be instructed by the industrial nurse to return to him. [4] Respondent had the plant nurse track claimant. The nurse’s daily tracking sheets reveal that claimant was moved to a job of lining out thighs. Claimant, when questioned as to how she was doing, responded “okay”. [5] On July 1, 1994, the tracking sheet revealed that claimant complained of her right ring finger being sore and swollen. Claimant returned to Dr. Ledbetter who injected her with a combination of Prednisolone and Xylocaine. Dr. Ledbetter directed the plant nurse to refer the claimant back in six weeks if the symptoms persisted. On July 11, 1994, claimant presented herself to Dr. Ledbetter complaining of pain in her forearm, arm and shoulder. At that time, he diagnosed a fungal problem in her hand and tendinitis in her arm and placed her on Naprosyn. Claimant returned to him on July 14, 1994 and related that she had just begun the Naprosyn three days before. At that time, Dr. Ledbetter took claimant off of the Wizard knife completely for three weeks and recommended that she use hot wax baths before work and ice after work. The nurse’s daily tracking sheets reflect that claimant was placed on the job running out lines and that the hot wax treatments and ice treatments were carried out as prescribed. [6] Although the job of lining out thighs is considered a two-handed job, claimant was given a right hand immobilizer and was instructed not to use her right hand. The daily tracking sheets from July 21st through August 11, 1994 reveal that each day the plant nurse asked claimant how she was doing and claimant replied “okay” or “she feels better”. [7] Claimant saw Dr. Ledbetter again on August 11, 1994. At that time, he considered claimant’s trigger finger completely resolved. However, he noted that claimant continued to have pain in her forearm, numbness of her thumb and tingling in her fingers. At that time, Dr. Ledbetter questioned carpal tunnel syndrome. Claimant then was restricted to no repetitive motion. Respondent complied and claimant was taken off of any rapid repetitive motion. She was moved to the job of running breasts. Dr. Ledbetter scheduled nerve conduction studies which were normal. With no evidence of carpal tunnel syndrome, Dr. Ledbetter noted he would see claimant only as needed. [8] The evidence indicates that August 13th through August 19th, claimant was on and off work due to illness. There is a notation that claimant complained of pain on August 15th because she had used her hand “all weekend long” at home. However, on August 19th, claimant was guiding wings, a one-handed job. At this time, claimant told the plant nurse that she was “doing okay”. On August 23rd, claimant was again assigned to the breast skinner. She told Mr. Farron Ledbetter that she could not do the job. Mr. Ledbetter instructed claimant to go to the break room and wait for him. Mr. Ledbetter then went to discuss the situation with Mr. William Lambdin in an effort to find a one-handed light duty job that claimant had never tried before. It was at this juncture that claimant left the premises without informing any of her supervisors. Claimant has not returned to work. [9] The evidence in this case indicates that respondent complied with not only with the doctor’s restrictions but also claimant’s complaints. An employer should not be held liable for benefits to a claimant who voluntarily walks out on a job. An employer cannot make a claimant work but can only provide employment. If a claimant chooses not to work, there is nothing an employer can do. [10] When determining appropriate light duty, respondent relies upon the instructions of the healthcare provider and on claimant’s feedback. If a claimant repeatedly tells the employer that she is “fine”, “doing fine” or “getting better”, then this is considered by the employer. [11] In the instant claim, claimant contends that she is entitled to temporary total disability benefits subsequent to August 23, 1994. Respondent contends that claimant is not entitled to any additional temporary total disability benefits because light duty work within her restrictions was made available to her and would have continued to be made available to her if claimant had not walked out of the plant. [12] Arkansas Code Annotated § 11-9-526 bars claimant from recovery. A.C.A. § 11-9-526 provides:

If any injured employee refuses employment suitable to his capacity offered to or procured for him, he shall not be entitled to any compensation during the continuance of the refusal, unless in the opinion of the Commission, the refusal was justified.

[13] Claimant unjustifiably refused and terminated her employment. Thus, she is not entitled to temporary total disability benefits except from the date of her surgery until her release to return to work by Dr. Moore. [14] Subsequent to leaving the respondent’s employ, the claimant saw Dr. James F. Moore on September 30, 1994. Dr. Moore diagnosed the claimant with right carpal tunnel syndrome and scheduled her for a second series of nerve conduction tests. At no time has Dr. Moore indicated that claimant was restricted from working although he did note that claimant had quit her job due to pain. On November 28, 1994, Dr. Moore reported that the injection of Depo-Medrol had helped very little and opined that claimant had two areas of compression of the medium nerve at the pronator origin and at the carpal tunnel. Dr. Moore recommended one day surgery to relieve the compression. [15] Respondent has provided claimant with reasonable and necessary medical treatment for her compensable injury and has accepted the claimant’s request for a change of physician to Dr. Moore and has accepted and paid Dr. Moore’s related medical expenses. Claimant is barred from receiving temporary total disability benefits subsequent to her voluntary termination of her employment with respondent. However, we modify the Law Judge’s opinion to reflect that upon her surgery by Dr. Moore, claimant is entitled to temporary total disability benefits from the date of that surgery until her release to return to work by Dr. Moore. The evidence clearly establishes that the respondent made every effort to accommodate the claimant’s physical restrictions and a preponderance of the evidence also establishes that the jobs the respondent made available to the claimant were suitable to her capacity. Claimant’s refusal to accept employment has not become justified merely because Dr. Moore has prescribed carpal tunnel surgery. Rather, the record is silent as to any evidence that the claimant could not work within her physical restrictions until her surgery and it is possible that the claimant could return to work as early as the next day following her surgery. There is simply no evidence in the record to show that claimant was rendered totally disabled from performing all forms of regular gainful employment after August 23, 1994, as a result of her compensable injury. Therefore, we modify the decision of the Administrative Law Judge. [16] IT IS SO ORDERED.

JAMES W. DANIEL, Chairman ALICE L. HOLCOMB, Commissioner

[17] Commissioner Humphrey concurs in part and dissents in part.

[18] CONCURRING AND DISSENTING OPINION
[19] While I agree that claimant is entitled to temporary total disability from the date of her surgery until released by Dr. Moore, I must respectfully dissent from the finding that claimant is not entitled to compensation pursuant to Ark. Code Ann. § 11-9-526 (Repl. 1996) because she refused suitable employment offered by the employer.

[20] It was not unreasonable for claimant to leave her employment on August 23, 1994. Subsequent to the compensable injury, the employer placed claimant on several jobs, which the employer considered light duty. However, each of these jobs exacerbated her condition. Considering the attitude of William Lambdin, her supervisor, claimant was certainly justified in her belief that the employer either would not, or could not, accommodate her restrictions. [21] Lambdin testified in the following manner as to his reaction to claimant on August 23, 1994:

“Okay. She came in and she was complaining about her hands and stuff and I told her that if she was one of my employees I would fire her ass right there on the spot if I could get by with it. . . .

* * *

Every time we put her on a job, she would go to hollering about it or would not be able — that she couldn’t do it or it hurt her. . . .

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. . . Because everything that I tried doing for her, she — what word am I trying to — she would find something wrong with it. It wouldn’t matter where I put her or who I sent her to, I could not satisfied her, and at a certain point, I just broke, I guess is what you would say. You know, I tried, went over backwards, I felt like. I done everything I could. I’ve tried her on every light-duty job I had out there.” (Emphasis added).

[22] Thus, claimant had tried every available light duty job and was unable to perform them without an exacerbation of her symptoms. Further, her supervisor told her he wanted to “fire her ass right there on the spot.” [23] Therefore, in my opinion, claimant was certainly justified in leaving her employment on August 23, 1994. [24] For the foregoing reasons, I dissent. I would affirm the opinion of the Administrative Law Judge finding that claimant is entitled to temporary total disability benefits beginning August 23, 1994. [25] PAT WEST HUMPHREY, Commissioner