BEAN v. SWIFT ECKRICH, INC., 1997 AWCC 405

CLAIM NOS. E410663 E414789

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

Before the Arkansas Workers’ Compensation Commission
OPINION FILED NOVEMBER 10, 1997

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

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

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

Decision of Administrative Law Judge: Reversed.

[1] OPINION AND ORDER
[2] Respondent appeals from a decision of the Administrative Law Judge filed January 27, 1997 finding that the respondent had not offered the claimant an opportunity to return to work or any reemployment assistance as required by Ark. Code Ann. § 11-9-505
and finding that the claimant was entitled to a vocational rehabilitation evaluation at the respondent’s expense. Based upon our de novo review of the record, we reverse the decision of the Administrative Law Judge.

[3] This is the second time this case has been before the Full Commission. On August 14, 1996, the Commission issued an Opinion and Order finding that the claimant had voluntarily walked out on her job and that the respondent had complied with not only the doctor’s restriction, but also the claimant’s complaints in providing a job. The Commission also found that the claimant was not entitled to any temporary total disability benefits from August 23, 1994, when the claimant voluntarily quit working for the respondent, until she was released by Dr. Moore following her carpal tunnel surgery. [4] In the appeal currently before us, the claimant contends that she is entitled to a vocational rehabilitation evaluation pursuant to Ark. Code Ann. § 11-9-505(b)(1) (Repl. 1996). The respondent contends that the claimant was offered employment and that she voluntarily left their employment, thereby waiving any vocational rehabilitation benefits. [5] Ark. Code Ann. § 11-9-505(b)(1) provides:

In addition to benefits otherwise provided for by this chapter, an employee who is entitled to receive compensation benefits for permanent disability and who has not been offered an opportunity to return to work and/or reemployment assistance shall be paid reasonable expense of travel and maintenance and other necessary costs of a program of vocational rehabilitation if the commission finds that the program is reasonable in relation to the disability sustained by the employee.

[6] There is no automatic entitlement to rehabilitation benefits. Rather, the decision is within the discretion of the Commission.Coosenberry v. McCroskey Sheet Metal, 6 Ark. App. 177, 639 S.W.2d 518 (1982). [7] Our review of the evidence indicates that the respondent provided employment to the claimant and made every accommodation possible but the claimant voluntarily left the employment. The evidence shows that the respondent did everything it could to return the claimant to work. As the Commission stated in its’ August 14, 1996 opinion in this case:

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.

[8] In our opinion, the respondent should not be required to make another offer of employment to this claimant. The claimant testified that she has not looked for any work since she left the respondent and is presently drawing Social Security. It is obvious this claimant is unmotivated to return to the work force. In addition, evidence was presented that the claimant has worked for the respondent on at least three separate occasions and has quit each time. [9] The Administrative Law Judge in her opinion cited the case ofTorrey v. City of Fort Smith, 55 Ark. App. 226, 934 S.W.2d 237
(1996). However, the facts of Torrey are distinguishable from this case. In Torrey, the claimant suffered a compensable injury and after he was released from his treating physician, he returned to his employer in an attempt to return to work. He was informed by his employer that they could not accommodate him because of his restrictions. He was afforded the opportunity to interview for other positions, but he was not hired. The Court of Appeals determined that the legislative intent of Ark. Code Ann. § 11-9-505
is to allow an injured worker to re-enter the work force. The Court determined that the employer did not have reasonable cause for not returning the employee to work. [10] In this case, the respondent not only returned the claimant to work, but complied with every one of her complaints to find suitable work and with the doctor’s restrictions. The claimant walked out on the respondent. In our opinion, the respondent should not be required to make another offer of employment to an unwilling and unmotivated employee. In addition, the respondent should not be required to have the claimant undergo a vocational rehabilitation evaluation at their expense. Therefore, we find that the claimant is not entitled to a vocational rehabilitation evaluation because the respondent has offered the claimant an opportunity to return to work in compliance with Ark. Code Ann. § 11-9-505(b)(1). [11] Even if the respondent had not offered the claimant the opportunity to return to work, which we did not find, we are not persuaded the claimant is entitled to a vocational rehabilitation evaluation. In Lester v. #1 Orchards, Full Commission opinion filed September 23, 1983 (Claim No. C916342), the Commission set out the questions to be answered in determining a claimant’s entitlement to rehabilitation benefits:

1. Can the claimant return to her old job, if modified? If not;
2. Can the claimant be reemployed by the same employer, in a different job? If not;
3. Does the claimant have transferable skills which would enable her without a special retraining program, to be gainfully employed in her community in a job paying similar wages to those received prior to the injury? If so,
4. Does the claimant need reemployment assistance (such as placement assistance or on the job training) in order to help her obtain the job transfer to such employment?

[12] If it is determined that a claimant cannot return to work, that she has no transferable skills which would enable her without a special retraining program to be gainfully employed in her community, and that reemployment assistance will not benefit her, then there are three additional questions which are beneficial in determining the appropriate course of action. These are:

5. Can the claimant be retrained? If so,

6. Is a suitable retraining program available within the claimant’s intellectual and attitudinal abilities? If so,
7. Which retraining program(s), if successfully completed by the claimant, is most likely to result in suitable gainful employment?

[13] If the answer to either of the first two questions is yes, a claimant is not entitled to rehabilitation benefits. [14] The facts of this case are very similar to the facts in the case of Ammie Olenick v. Simmons Industries, Full Commission opinion March 7, 1990 (Claim Nos. D817028 and D816889). In theOlenick case, the claimant sustained a compensable injury and the respondent made every reasonable accommodation for the claimant. Because there was not an existing job that was suitable for the claimant, one was created specifically for the claimant until she was ready for stand-up work. The claimant decided that her work station was too hot so she placed her chair in the doorway. When asked by her supervisor to come back inside, she refused and left the premises, stating that the company would be hearing from her attorney soon. The area was searched and claimant was not found. The claimant was unable to give a coherent explanation for her unauthorized departure. The claimant requested rehabilitation benefits and the Commission denied the claimant’s claim stating:

Because Ms. Olenick had every opportunity to return to work at Simmons Industries, we find that questions number 1 and 2 of the Lester test must be answered in the affirmative. The issue of retraining cannot be reached, because retraining is available only to one who cannot return to his previous employer.

[15] In the present action, the claimant was given the opportunity to return to work for the respondents and she chose to walk out. We find that the answers to questions number 1 and 2 of the Lester
test must be answered in the affirmative. The issue of retraining cannot be reached because retraining is available only to one who cannot return to her previous employer. Therefore, the claimant is not entitled to rehabilitation benefits under the Lester test. [16] Therefore, after conducting a de novo review of the entire record, we find that the respondent made every effort to return the claimant to work. Accordingly, the claimant has failed to prove by a preponderance of the evidence that she is entitled to a vocational rehabilitation evaluation at the respondent’s expense. The January 27, 1997 decision of the Administrative Law Judge is hereby reversed. [17] IT IS SO ORDERED.

ELDON F. COFFMAN, Chairman MIKE WILSON, Commissioner

[18] Commissioner Humphrey dissents.

[19] DISSENTING OPINION
[20] I must respectfully dissent from the majority opinion finding than the claimant is not entitled to vocational rehabilitation benefits. The Administrative Law Judge held that the respondent was responsible for providing the claimant with a vocational rehabilitation evaluation pursuant to Ark. Code Ann. § 11-9-505(b)(1) (Repl. 1996). Based upon my de novo review of the record, I find that the claimant is entitled to the vocational rehabilitation evaluation. Accordingly, I would affirm the Administrative Law Judge’s decision in this case.

[21] The evidence in this case indicated that the claimant had been employed by the respondent when she began to experience pain in her right hand in March of 1994. The respondent initially accepted the claim as being compensable and provided her medical treatment. The claimant was eventually diagnosed with carpal tunnel syndrome in September of 1994, by Dr. Moore. Since the time of the first hearing below, the claimant underwent release surgery and continued under the care of Dr. Moore after the surgery. Although there was some controversy over whether or not all of Dr. Moore’s bills for the surgery and treatment had been paid at the time of the hearing below, the respondent has accepted liability for all such charges and this is not an issue on appeal. However, I believe the fact that the claimant re-entered her healing period and underwent surgery is relevant in terms of the current issue on appeal. [22] Arkansas Code Annotated § 11-9-505(b)(1) (Repl. 1996), provides:

In addition to benefits otherwise provided for by this chapter, an employee who is entitled to receive compensation benefits for permanent disability and who has not been offered an opportunity to return to work and/or reemployment assistance shall be paid reasonable expenses of travel and maintenance and other necessary costs of a program of vocational rehabilitation if the commission finds that the program is reasonable in relation to the disability sustained by the employee.[Emphasis supplied.]

[23] It is clear from the evidence presented at the first hearing in this case that the claimant left her employment with the respondent voluntarily. However, since ending her employment, the respondent has provided the claimant medical treatment in the form of surgery, temporary total disability benefits, and she was assigned a 10% permanent impairment rating all as a result of her admittedly compensable injury. The claimant was not entitled to receive the vocational rehabilitation type of benefit in question until she received her permanent impairment rating. The 10% rating was not assigned to the claimant until after leaving her employment with the respondent and after the surgery. The claimant’s medical restrictions and her ability to perform any type of employment duties for the respondent changed between the time she ended her employment with the respondent and after her surgery. [24] The issue in the present case is distinct and separate from the issue of entitlement to temporary total disability benefits, the issue decided in the first hearing below. As the Administrative Law Judge pointed out in her decision, the section in question in the first hearing was Ark. Code Ann. § 11-9-526
(Repl. 1996), which has been held to allow claimants to withdraw their refusal to return to work. See Barnette v. Allen CanningCompany, 49 Ark. App. 61, 896 S.W.2d 444 (1995). I find that because the claimant filed a request pursuant to Ark. Code Ann. § 11-9-505(b)(1) (Repl. 1996), the issue of whether or not the claimant had left her employment voluntarily became moot. At the time the request was made, the claimant had now been through surgery, had been assigned a permanent impairment rating, and she was ready to return to some type of employment. The issue then became whether or not, in light of the new request for a vocational rehabilitation evaluation, did the respondent at that point make the claimant an offer of employment or assistance in reemployment. The clear answer is no. After the claimant filed the request, the respondent simply relied on the earlier decision and denied any further assistance to the claimant. The respondent presented no evidence at the second hearing of any type of offer to return to work or any assistance whatsoever. [25] The facts of this case are very similar to the facts in theBarnette, supra, case. The claimant in that case, Ms. Barnette, had voluntarily terminated her employment with the employer, subsequently underwent surgery, and was then released to return to work. In that case, the Court of Appeals determined that the claimant had never been offered a job. Since no offer had been made, the claimant did not “unreasonable refuse” employment. I believe we have the same situation in the present case. Regardless of how the employment relationship was terminated previously, according to the Barnette opinion, the respondent had an affirmative duty to offer the claimant the opportunity to return to work or offer her assistance to find suitable employment, as the statute in question places the affirmative duty on the respondent. The respondent failed to meet their burden of proof by failing to offer any new evidence of an offer of employment or employment assistance at the second hearing below. I believe that the majority opinion simply ignores the Barnette opinion which I find to be clearly on point. [26] Therefore, I would find that the respondent failed to follow the statute in question and that the claimant is entitled to the rehabilitation evaluation. Accordingly, I would affirm the Administrative Law Judge’s decision. [27] PAT WEST HUMPHREY, Commissioner