CLAIM NO. E512024
GARRY BRANCH, EMPLOYEE, CLAIMANT v. WOODLINE MOTOR FREIGHT, EMPLOYER, RESPONDENT and NORTH AMERICA INSURANCE CO., INSURANCE CARRIER, RESPONDENT
Before the Arkansas Workers’ Compensation Commission
OPINION FILED AUGUST 21, 1997
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE EDDIE WALKER, JR., Attorney at Law, Fort Smith, Arkansas.
Respondent represented by the HONORABLE CHRIS GOMLICKER, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed.
[1] OPINION AND ORDER
[2] The respondents appeal an opinion and order filed by the administrative law judge on November 25, 1996, and an amended opinion and order filed on December 6, 1996. In those opinions, the administrative law judge found that the claimant is eligible for vocational rehabilitation benefits, and the administrative law judge found that the vocational rehabilitation plan submitted by the claimant was reasonable. The administrative law judge ordered the respondent to fund the claimant’s rehabilitation for a period of up to 72 weeks. After conducting a de novo review of the entire record, we find that the administrative law judge’s decision must be affirmed.
[3] The claimant sustained a job-related low back injury on March 1, 1995. The injury required surgery at the L4-5 level of the spine for which the claimant received a 10% rating to the whole body for permanent anatomical impairment. The respondents accepted the claimant’s injury as compensable and paid appropriate medical and disability benefits. However, the respondent refused to fund a plan of vocational rehabilitation submitted by the claimant.
[4] Initially, we find that the claimant is a candidate for rehabilitation. In this regard, at the time of the hearing, the claimant was 48 years of age. The claimant had been employed as a truck driver for the respondent when he was injured. The claimant’s past employments include other truck driving jobs, employment as a security guard, cable installer, and other types of manual labor. The claimant has completed high school but does not have any college degrees or hours or any vocational training.
[5] Based upon the opinion of the claimant’s treating physician, as well as a work hardening program he underwent after being released from the doctor, the claimant is under restrictions including no prolonged sitting or standing, avoidance of frequent and repetitive bending and stooping, and no more than an occasional lifting of up to 50 pounds. The claimant did return to work with the respondent for several weeks following the end of his healing period. However, this employment was on a limited, light duty basis. The claimant, as well as Mr. Robert Wood, the claimant’s former employer, testified that the claimant’s restrictions precluded him from doing his former job as a truck driver. The employment which the respondent provided to the claimant after his return to work generally paid between $50.00 to $100.00 per week. Prior to his injury, the claimant’s average weekly wage was slightly less than $400.00 per week.
[6] The respondent contends that the employment offer to the claimant was intended to be a full time or permanent return to work. However, under cross examination, Mr. Wood admitted that the claimant’s restrictions would have precluded the claimant returning as a truck driver in his employment. It also appears that the types of clerical and cleanup work assigned to the claimant generally only consumed a few hours per day. It was apparently the practice of the parties for the claimant to leave once his day’s assignments were completed. According to the claimant’s testimony, at times these duties took less than two hours to accomplish. That testimony was supported by the time sheets furnished by the respondent. These time sheets reflect when the claimant clocked in and clocked out. The time sheets indicate that the claimant rarely worked more than two to three hours on any given day.
[7] In short, the medical evidence and testimony indicate that the claimant is not physically capable of returning to his prior work as a truck driver under any modifications, and the claimant cannot be employed by the respondent or (any other employer) making wages similar to the wages he was earning prior to his back injury. After considering the claimant’s age, education and work experience, we find that job placement assistance would not be sufficient in the present case to enable the claimant to be employed making wages similar to the wages he earned as a truck driver prior to his injury.
[8] The claimant has requested that the respondent fund a vocational rehabilitation plan consisting of computer education to be provided at Northwest Arkansas Community College. According to documents provided by the claimant, this program will cost approximately $6,400.00. The documents indicate that to obtain a degree, the claimant will be required to complete 63 hours of general and specialized instruction.
[9] After reviewing the claimant’s testimony, and the evidence that the claimant has a high school education, we find that the preponderance of the evidence in the record indicates that the claimant has the education, intelligence and motivation necessary to be retrained, and we find that the greater weight of the evidence in the record establishes that the computer training proposed by the claimant, if successfully completed, will likely result in suitable employment within the claimant’s physical limitations at wages similar to, or greater than, his wages as a truck driver prior to the injury.
[10] In reaching our decision, we note that the greater weight of the credible evidence establishes that the claimant has not had available “an opportunity to return to work” which might preclude vocational rehabilitation under Ark. Code Ann. §
11-9-505(b)(1) (Repl. 1996). In this regard, there is no doubt that the claimant did return to work with the respondent for approximately two months after his release by his doctor. However, as discussed, a review of the time sheets contained in the record indicate that the claimant worked more than 10 hours per week on only one occasion. Also, the testimony of the claimant and Mr. Wood establishes that the claimant’s primary duties involved sweeping up the loading dock, doing occasional clerical tasks and other “make” work jobs. Despite Mr. Wood’s testimony to the contrary, the greater weight of the credible evidence indicates that the respondents did not intend to return the claimant to full time employment. In reaching our decision, we also note that Mr. Wood acknowledged that the claimant’s physical restrictions precluded him from performing any driving duties similar to what he had done before. Mr. Wood further stated that at the time the claimant returned to work, he was in the process of liquidating his business. After giving due consideration to the circumstances surrounding the claimant’s return to work, we simply do not believe that the job duties assigned the claimant were intended to be a permanent return to gainful employment. Therefore, we find that the respondent has not made a bona fide offer of work to the claimant which might preclude vocational rehabilitation.
[11] We also find that the proposed computer training is reasonable in relation to the claimant’s disability. In this regard, the curriculum is a typical junior college associate degree program that would require the claimant to take several generally required courses such as english composition, college algebra, and others in the first semester with a variety of computer related courses in the following semesters. The degree program would provide the claimant with training in various types of computer programs and systems commonly used in business, as well as related business subjects.
[12] With regard to the extent of his disability, the claimant has suffered disability sufficient to essentially eliminate any possibility of his re-employment as a truck driver. It also appears that the claimant does not presently have transferrable job skills sufficient to find employment at a job which either does not require manual labor or activities such as prolonged standing, which significantly aggravate his condition. If the claimant is able to successfully complete this program, he would certainly be more qualified to return to the job force in a more sedentary capacity than he is now capable of doing.
[13] Finally, we note that the respondents assert on appeal that a rehabilitation evaluation would be beneficial prior to our determination on the claimant’s proposed plan of rehabilitation. In assessing this assertion, we feel compelled to initially note that the claimant requested assistance from the respondents with job placement assistance or vocational rehabilitation assistance in July of 1996, and no assistance was offered prior to the hearing held in November of 1996. Of course, if we felt that the evidence was too inconclusive to make a determination on the plan developed by the claimant on his own initiative, then we would certainly consider remanding this claim to the administrative law judge to order rehabilitation evaluation counseling. However, after considering the claimant’s age, education, intelligence, motivation, work experience, physical disability, prospects for re-employment without retraining, his proposed rehabilitation plan, and all other relevant factors, we are satisfied that our determination in this case would not be aided by a report from a professional evaluation counselor. We therefore respectfully decline to implement the respondents’ suggestion that the claimant be referred for rehabilitation evaluation counseling prior to our decision on his request for rehabilitation training.
[14] The claimant’s attorney is hereby awarded an additional fee of $250.00 for having prevailed upon this appeal. One-half of that fee is to be paid by the respondent and the balance to be paid by the claimant out of any future benefits he may receive.
[15] IT IS SO ORDERED.
ELDON F. COFFMAN, Chairman PAT WEST HUMPHREY, Commissioner
[16] Commissioner Wilson dissents.
[17] DISSENTING OPINION
[18] I must respectfully dissent from the majority opinion finding that claimant is entitled to a vocational rehabilitation plan to obtain an associates degree in computer information from Northwest Arkansas Community College. Based upon my de novo review of the entire record, I find that claimant has failed to meet his burden of proof.
[19] Ark. Code Ann. §
11-9-505(b) allows a claimant who is otherwise entitled to receive compensation for permanent disability benefits an opportunity for vocational rehabilitation if the Commission finds that the program is reasonable in relation to the disabilities sustained by the claimant. If claimant elects to pursue vocational rehabilitation, claimant must file a program for vocational rehabilitation with the Commission. The purpose of filing this request is to allow the respondent and the Commission the opportunity to determine if the program is reasonable in relation to the disability sustained by the claimant. Based upon my de novo review of the entire record, I find that claimant’s proffered program of vocational rehabilitation is not reasonable as it relates to claimant’s injury. Claimant’s plan is simply a request to obtain college credit hours in the field of computer information. In my opinion, the program filed with the Commission is insufficient to allow me the opportunity to determine whether it is reasonable. The record merely establishes that claimant obtained his high school diploma. However there is no indication in the record whether claimant will be able to begin the two year program of courses outlined in the plan submitted by claimant without first having to undergo remedial level or more basic level courses as prerequisites for claimant taking the courses set forth in the program. This question left unanswered goes to the heart of whether the program is reasonable for this claimant in light of this claimant’s injury. If claimant must first undergo a year of remedial courses or more basic level courses prior to entering into the courses outlined in claimant’s program, I cannot find that the program is reasonable as it would require claimant remain in college for a much longer period of time during an extensive period of which respondent would not be responsible for the cost of the program nor for other benefits. All we know from the plan submitted by claimant is the courses required by the college to obtain the degree and the cost of the program. While this is a good start, it is insufficient to meet claimant’s burden of supplying the Commission with a detailed program of vocational rehabilitation. Moreover, claimant has failed to provide the Commission with any information regarding his potential job prospects should he successfully complete the program. Just what type of job would claimant hope to obtain after securing an associates degree in computer information? Would this field of employment offer claimant wages substantially similar to those that he was earning at the time of his injury? Again, these questions remain unanswered from the program submitted by claimant. Accordingly, I cannot find that the program supplies me with sufficient information to determine if it is a reasonable program of rehabilitation for this claimant.
[20] Furthermore, and possibly more importantly, I question whether this particular claimant is actually a candidate for vocational rehabilitation. Claimant contends that he can no longer drive a truck due to his compensable injury. However, claimant is not so limited in his physical abilities to prevent claimant from entering the work force with his numerous and varied transferrable skills. Accordingly, I cannot find from the record that this claimant is actually a candidate for vocational rehabilitation.
[21] Therefore, for those reasons stated herein I must respectfully dissent from the majority opinion.
[22] MIKE WILSON, Commissioner
