CLAIM NO. F904606
Before the Arkansas Workers’ Compensation Commission
OPINION FILED JUNE 3, 2010
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Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by the Honorable Theodor Stricker, Attorney at Law, Jonesboro, Arkansas.
Respondents represented by the Honorable Jarrod Parrish, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Reversed and Dismissed.
OPINION AND ORDER
The respondent appeals a decision by the Administrative Law Judge finding that the claimant proved by a preponderance of the evidence that he was entitled to temporary total disability benefits. After conducting a de novo review of the record, we find that the claimant has failed to meet his burden of proof. Accordingly, we here reverse the decision of the Administrative Law Judge.
The claimant was employed by the respondent employer as a maintenance worker. On April 29, 2009, the claimant was attempting to repair a drive when he fell. The
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claimant continued to work the rest of the evening. The next day he was off and he returned to work and worked for two days continuing to perform his regular duties as maintenance electrician. After working for two days, the claimant attended a meeting with Robert Gates, his immediate supervisor and Dennis Everett, the overall maintenance supervisor regarding the incident on April 29. At the meeting, the claimant resigned from the respondent employer. The claimant contended that he was fired, but the following testimony of Mr. Everett demonstrates that the claimant resigned:
A. I was trying to gather information so that I could basically give a report to my supervisor why he had the extended down time and the high cost of repair for the doublebacker, and in doing that, especially since I wasn’t there, I had to call Joe Cantrell and I had to call Robbie Gates in as the two primary people there that were working on that, and I wanted to find out what happened how it happened, so on and so forth in order for me to generate a report for my boss.
Q At any point in the meeting, was there any mention of Mr. Cantrell’sPage 3
job being in jeopardy?
A. No.
Q. All right. Had you at any point, in that meeting or prior to that meeting, threatened Mr. Cantrell’s job or indicated that you could have his job or that you would take his job?
A. No.
Mr. Everett also testified that there was nothing about his posture, the tone of his voice or the setting of the conversation that would hint or indicate that the claimant was going to be fired or forced to quit. Mr. Everett never initiated the process to terminate the claimant and he did not inform the claimant that he was going to initiate that process.
When questioned by the claimant’s counsel who asserted the claimant had been fired, Mr. Everett testified:
A. That’s not true.
Q. Did you make a statement to Mr. Cantrell that he could either resign or you would begin the termination process?
A. No, I did not.
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Q. And that was never brought up in the conference at all?
A. Not a single word to that effect was spoken by me during that conversation at all.
Q. Okay. Is it your understanding that as a result of this conference, Joe Cantrell resigned?
A. Yes he did.
Q. And how did he resign? Did he give you a written statement?
A. No, he didn’t.
Q. Did he say, “I resign”?
A. Yes, he did.
Q. That’s what he said, “I resign”?
A. This is what he said: He said, “I should probably resign,” and I said, “Are you resigning?” and he said, “Yes.” And then when he said, “Yes,” he has got keys for work on his belt loop, takesPage 5
those off and hands them to me.
Mr. Gates corroborated Mr. Everett’s statements. He stated that the claimant was evasive and uncooperative when he was questioned about what happened on April 29th. Mr. Gates made it clear that the claimant initiated the discussion regarding his resignation. Mr. Gates explained:
Q. How did the conversation get to the point where he dropped his keys? How did you guys get there?
A. I know it was a complete shock to me. Something about, “Do you want me to resign?” and Dennis asked the question, “Well, are you resigning?” and he got his keys out and dropped them in Dennis’s hand.
Q. And after he dropped the keys off, did he say anything else?
A. Not that I recall. Turned around and walked out of the office.
Q. When Dennis asked him “Are you resigning?” did he say “yes” when he dropped the keys?
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A. Yes.
After he resigned, the claimant reported a work related injury from the incident on April 29, 2009 to Linda Hobbs, the Human Resources Manager. The claimant indicated to Ms. Hobbs that he wanted to pursue a workers’ compensation claim. Ms. Hobbs explained that she contacted the claimant several days after he quit to provide him with COBRA information. Ms. Hobbs stated:
A. He said, “Well, you know I’m disabled now?” I said, “What are you talking” — I said, “What?” And I thought he — he said “I’m wanting to know about my benefits,” and I thought he meant the benefits/benefits, like medical, dental, all of that, how was that to work.
Q. Okay
A. And he said, “No. You know I got hurt,” and I said, “No, I’m sorry, I didn’t. What are you referring to?” and he explained to me that he had had an incident wherePage 7
his back had been — it was sore and he reported it to Robbie Gates and that it was supposed to be recorded on the first aid log, and I said, “Well, I’m sorry. I wasn’t aware of it. I’m glad you’re telling me this.” So anyway, we took it from there. But that was the first I’d heard.
The claimant sought treatment for his lumbar spine at the Sparks Regional Medical Center emergency room on May 8, 2009. The respondents accepted the claim as a medical only claim and sent the claimant to Dr. Randall Carson who treated the claimant through June 19, 2009. Dr. Carson referred the claimant to Dr. Thomas Cheyne. Dr. Cheyne provided treatment through at least July 24, 2009 when he recommended that the claimant undergo a second epidural steroid injection and for the claimant to follow up after
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the injection. There are no more medical records contained in the record after that date.
The medical evidence demonstrates that the claimant had prior problems with his lumbar spine. In 1998, the claimant underwent a laminectomy at L5-S1. In 2004, he had a discectomy and fusion from L4 to S1. The claimant was also in a motor vehicle accident on May 14, 2009 and hurt his back.
The issue currently before the Commission is whether or not the claimant is entitled to temporary total disability benefits for May 5, 2009, through a date yet to be determined. The claimant contends he is entitled to benefits. The respondents contend as follows:
Respondents contend this claim was accepted as a medical only claim. The claimant was released to return to work and voluntarily discontinued his employment on 5/5/09 for reasons unrelated to his work related injury. It is respondents position that work
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was available for the claimant within any limitations and restrictions assigned by his treating physician. In light of this, its respondents position that indemnity benefits are not due and owing in this matter.
Temporary total disability is that period within the healing period in which an employee suffers a total incapacity to earn wages. K II Constr. Co. v. Crabtree, 78 Ark. App. 222, 79 S.W.3d 414 (2002); Ark. State Hwy. Trans Dept. v.Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981). Without an initial finding of compensability, a claimant cannot be awarded temporary total disability benefits or additional medical treatment.See, Ark. Code Ann. § 11-9-102(4)(D) (Supp. 2005). Although objective medical findings are not directly necessary for the Commission to award temporary total disability benefits, such findings are required for the underlying injury to be compensable.Williams v. Prostaff Temporaries, 64 Ark. App. 128, 979 S.W.2d 911 (1998), aff’d, Williams v. ProstaffTemporaries, 336 Ark. 510, 988 S.W.2d 1 (1999). When an injured employee is totally incapacitated from earning wages and remains in his healing period, he is entitled to temporary total
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disability. Id.
Ark. Code Ann. § 11-9-526 provides in pertinent part:
If any injured employee refuses employment suitable to his or her capacity offered to or procured for him or her, he or she shall not be entitled to any compensation during the continuance of the refusal, unless in the opinion of the Workers’ Compensation Commission, the refusal is justifiable.
An offer of suitable employment is a condition precedent to applying Ark. Code Ann. § 11-9-526. Webb v. Webb, Full Commission Opinion, June 29, 2000, (Claim No. E906155). Moreover, work must be available within the employee’s physical restrictions.McCullor v. Democrat Printing Lithographic Co., Full Commission Opinion, April 28, 1998, (Claim No. E608050). The claimant must unjustifiably refuse employment which is suitable to his capacity. Barnette v. Allen Canning Company, 49 Ark. App. 61, 896 S.W.2d 444 (1995).
The evidence clearly demonstrates that the claimant is not entitled to temporary total disability
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benefits. The claimant was not incapacitated from earning wages. The evidence demonstrates that the claimant worked for two days following the injury without incident and reported an injury only after he resigned his employment. Further, the respondent employer had light duty work available to the claimant had he not resigned. This is evidenced by the testimony of Mr. Everett:
Q. Okay. You have been asked about light duty and whether light duty was offered. It’s my understanding Mr. Cantrell has a 50-pound lifting restriction. With that restriction in place, would he be able to do the work at Temple Inland he was doing in the electrical maintenance department?
A. Yes. And that’s the one for everybody at the plant.
Q. Okay. If something is more than 50 pounds, how are you supposed to handle it?
A. It’s supposed to be a two-person life or some type of an engineered lift, like a chain hoist or a chain puller or forklift or something like that.
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Q. If he had not quit his employment, would he still be working there today?
A. Yes.
Q. At one point, Mr. Cantrell had a 20-pound lifting restriction. Is there any type of work that he would have been able to do with a 20-pound lifting restriction?
A. Yes. We have administrative work that can be done; there’s files that can be gone through and there’s plant checks that can be done; there’s being, you know, an assistant on the job, so to speak, holding a flashlight for somebody, you know, that typ of thing.
Q. Is it Temple’s policy to try to provide light duty or modified duty if possible?
A. If possible, yes. And that’s all relative to, you know, the doctors and so forth, whatever restrictions. But, yes, we try at all costs not to have somebody get injured at work, to begin with, and then have lost time and all of thosePage 13
things. So light duty if available.
It is clear that light duty was available at all times to the claimant had he not resigned. Therefore, refusal pursuant to A.C.A. 11-9-526 was not justifiable. In fact, the claimant resigned his position and but for the resignation the claimant would have still been employed and on light duty. The claimant clearly refused suitable employment by turning in his keys. The respondents are not obligated to offer an employee who resigned on their own to return to work. To require an employer to do so would result in employers being required to offer employment to workers who have been fired for cause or to employees who have quit like the claimant did in this case. That is an absurd result and is clearly not the intent of this statute. The legislative intent of A.C.A. 11-9-526 is to prevent employers from having to pay temporary total disability benefits when there is suitable work available. Accordingly, the claimant is not entitled to temporary total disability.
The claimant contended that he was terminated therefore he should receive temporary total disability benefits. However, our review of the evidence demonstrates
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that the claimant was not terminated. Ms. Hobbs testified regarding the policy for termination:
Q. Okay. Dennis has testified about the policy for termination of employment or employment-related issues, and just briefly, do you guys have a progressive policy out there?
A. Yes. It’s called a job performance; it’s progressive disciplinary steps. It pertains to all phases of work performance, whether it’s safety, productivity or quality related. There are five steps and each of those steps begins with counseling, and those steps progress to a final step would be a performance improvement plan that the employee is requested to write. At that point, they explain that they’re going to do to improve their performance should they have another occurrence. Then, yes.
Q. Had any of that taken place as far as the progressive steps; had any of that taken place-
A. — with Joe Cantrell?
Q. Would Dennis or Robbie,Page 15
barring some incident where a claimant showed up drunk or stole or brought a gun or something, barring one of those type incidents, would Dennis or Robbie actually have the power to terminate someone without going through the progression-
A. No, sir.
Q. — of the policy that you guys have in place?
A. No, sir.
Q. All right. Did the claimant have any conversation with you after the termination about coming back to work or wanting to try to come back to work?
A. As I recall, I got a phone call from Joe, I believe it was early August, and he stated that he had been contacted by his attorney that had told him he needed to get his butt back to work, and I said, “Oh?” and he said, “I understand that there is light duty available for me,” and I said, “Well, I’m not aware of any call for you to come back to work. You resigned. There is no light dutyPage 16
for a terminated employee. I’m rather confused,” I said, “but I will check into it.” And I checked with the appropriate parties and, you know, there was nothing to report. I got his phone number and said, “If that is the case, I’ll call you back.”
Q. What was his status at that time as far as employment relationship with you guy; how did you have him classified?
A. He had resigned many months before.
Q. Okay. And if he had not resigned, would you guys have been able to let him work with a 50-pound weight restriction?
A. Yes. That is our policy. If we have work available for anyone that’s sick or injured, within their medical restrictions, then, by all means, we’re going to try to seek out that work, and certainly, within a 50-pound weight restriction, there was adequate work.
Q. Was Mr. Cantrell made aware of the progressive disciplinary policy whenPage 17
he hired in with you guys?
A. Yes, I mean, that’s part of orientation, the attendance policy and the progression and all of that, yes.
It is clear from the testimony of Ms. Hobbs regarding the respondent employers termination policy along with the testimony of Mr. Everett and Mr. Gates that the claimant was not terminated but resigned from the respondent employer. Both Mr. Everett and Mr. Gates independently testified that the claimant resigned during their meeting. In fact, Mr. Gates’ testimony, given after Mr. Everett’s and after he was sequestered from the hearing, verified Mr. Everett’s recollection of their meeting with the claimant. Therefore, when we consider the testimony of the claimant, Mr. Everett, Mr. Gates and Ms. Hobbs, we cannot find that the claimant was terminated but, in fact, the claimant resigned his position with the respondent employer. There was light duty work available to the claimant had he not resigned. Therefore, the claimant is not entitled to receive any temporary total disability benefits. His claim
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should be denied and dismissed.
Therefore we find that the decision of the Administrative Law Judge must be reversed and this claim for temporary total disability benefits is denied and dismissed.
IT IS SO ORDERED.
A. WATSON BELL, Chairman
KAREN H. McKINNEY, Commissioner
Commissioner Hood dissents.
PHILIP A. HOOD, Commissioner.
DISSENTING OPINION
I must respectfully dissent from the majority opinion. After ade novo review of the record, I find, as did the Administrative Law Judge, that the claimant is entitled to temporary total disability benefits from May 5, 2009 until a date yet to be determined. The majority finds that Ark. Code Ann. § 11-9-526 bars the claimant from receipt of temporary total disability benefits. I find, as did the Administrative Law Judge, that Ark. Code Ann. § 11-9-526 does not apply to this claim. Therefore, I must respectfully dissent from the majority opinion.
Temporary total disability for unscheduled injuries is that period within the healing period in which claimant suffers a total incapacity to
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earn wages. Ark. State Highway Transportation Dept. v.Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981). The healing period ends when the underlying condition causing the disability has become stable and nothing further in the way of treatment will improve that condition. Mad Butcher, Inc. v. Parker, 4 Ark. App. 124, 628 S.W.2d 582 (1982). A claimant who has been released to light-duty work but has not returned to work may be entitled to temporary total disability benefits where there is insufficient evidence that the claimant has the capacity to earn the same or any part of the wages that he was receiving at the time of the injury. Breshears, supra; Sanyo ManufacturingCorp. v. Leisure, 12 Ark. App. 274, 281-82 (1984). When an injured employee is totally incapacitated from earning wages and remains in the healing period, she is entitled to temporary total disability. Id.
In the present case, the medical evidence presented shows that the claimant was under active medical treatment for his April 29, 2009 compensable injury from May 8, 2009 through July 24, 2009. Initial treatment was provided for the claimant’s compensable injury by physicians at the Sparks Regional Medical Center emergency room on May 8, 2009. Between April 13, 2009 and June 19, 2009, the claimant was under active medical treatment for his compensable lumbar injury by Dr. Randall Carson. Dr. Carson is a general practitioner and was selected by the respondent to provide the
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claimant with treatment for the compensable injury. Dr. Carson subsequently referred the claimant for further evaluation and treatment of the compensable injury to Dr. Thomas Cheyne of the River Valley Musculoskeletal Center. Dr. Cheyne has provided the claimant with treatment from July 6, 2009 through, at least, July 24, 2009. On that date, Dr. Cheyne recommended that the claimant undergo a second epidural steroid injection, and directed the claimant to return for follow-up after this injection. It is apparent, from Dr. Cheyne’s report of July 24, 2009, that the claimant’s compensable injury had not healed or even stabilized, at that time.
I find, based on the medical evidence of record that the claimant remained within his healing period from the effects of his admittedly compensable lumbar injury of April 29, 2009, from the day of his employment-related accident through a date yet to be determined, but at least some time after July 24, 2009.
The claimant must also prove that his compensable injury of April 29, 2009 has rendered him totally disabled from regular gainful employment from May 5, 2009 through a date yet to be determined. I find that both the claimant’s testimony and the medical evidence show that the compensable injury has restricted or limited the claimant’s employment activities, at least temporarily. Initially, the claimant was medically restricted
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by Dr. Carson from engaging in any employment activities that involved lifting, pushing, or pulling in excess of 20 pounds. He was further prohibited from engaging in repetitive bending or twisting at the waist, stooping, kneeling, or crawling. Finally, he was limited to employment positions that would allow him to sit or stand at will. Dr. Carson subsequently raised the limit on lifting, pushing, or pulling, to 50 pounds, but maintained the restrictions of no repetitive bending or twisting at the waist, kneeling or crawling, or stooping, and continued the requirement that the claimant must be able to sit or stand at will. Dr. Cheyne appears to have agreed with these restrictions. The claimant also testified that he believed himself to be capable or physically performing employment activities that complied with these restrictions or limitations.
While there are clearly types of employment positions that would be within these medical restrictions, these restrictions must also be considered in light of the fact that the claimant currently continues under active medical treatment for his compensable injury of April 29, 2009. Further, the greater weight of the evidence indicates that the claimant’s compensable injury is likely more than a simple lumbar strain. As previously indicated, the MRI study, which was performed on June 15, 2009, revealed the presence of damage to the L3-4 disc in the form of a protrusion that extended into the neural foramina. When the claimant’s physical restrictions from his compensable
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lumbar injury of April 29, 2009 are considered in light of his continuing need for treatment, it is highly improbable that the claimant could obtain employment in the open job market.
Therefore, I find that the claimant has proven, by the greater weight of the credible evidence, that he has continued to be rendered totally disabled from performing regular gainful employment, as a result of the effects of his compensable lumbar injury, from May 5, 2009 through a date yet to be determined. This would satisfy the second requirement for his entitlement to temporary total disability benefits during this period.
However, the majority finds that the claimant is barred from receiving the temporary total disability benefits he is entitled to under Breshears by the provisions of Ark. Code Ann. § 11-9-526. This section expressly requires that there must first be an offer of “suitable employment”. Next, the claimant must unjustifiably refuse such employment. Finally, both the offer of suitable employment and the unjustified refusal must continue throughout the period wherein the claimant is otherwise entitled to temporary total disability benefits.
The evidence reflects that the claimant continued to perform his regular maintenance position for two days following his compensable injury. This position required the claimant to engage in heavy lifting, bending and twisting at the waist, kneeling, and stooping. On the third regular work day,
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a meeting took place between the claimant, Robert Gates (the claimant’s immediate supervisor) and Dennis Everett (the overall maintenance supervisor). This meeting concerned the occurrence of the accident that gave rise to the claimant’s compensable injury. In this accident, extensive damage had apparently occurred to expensive equipment, with a resulting loss of production.
All three participants in this meeting testified. However, there is some discrepancy in the description of the conversations that occurred during this meeting. The claimant testified that this was the third in a series of conversations that had occurred between himself and Mr. Everett since the accident. He stated that, during this meeting, the discussion got heated, and Mr. Everett told him that he could either tender his resignation or the termination process would be started. The claimant stated that he never told Mr. Everett that he resigned, but merely handed his keys to Mr. Everett.
Mr. Everett testified that he never told the claimant to either resign or face termination and that there was no prior mention of the claimant’s job being in jeopardy. It was Mr. Everett’s testimony that the claimant spontaneously made the statement that he should probably resign. Mr. Everett stated that, when he specifically asked the claimant if he was resigning, the claimant replied “yes” and handed over his keys. Mr. Everett testified that he then accepted the claimant’s resignation, took the keys, and
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had the claimant escorted from the plant.
Mr. Gates testified that the discussion between the claimant and Mr. Everett became heated, as it progressed. Mr. Gates stated that the claimant asked Mr. Everett if Mr. Everett wanted him to resign. He then testified that Mr. Everett responded by asking the claimant if he was resigning. Finally, he testified that, at that point, the claimant dropped his keys into Mr. Everett’s hand and walked out of the office. However, with some help from the respondents’ attorney, Mr. Gates recalled the claimant verbally responding to Mr. Everett’s inquiry and expressly saying that he resigned. It was Mr. Gates’ further testimony that, prior to this exchange, there had been no mention by Mr. Everett of any termination of the claimant.
Both Mr. Everett and Mr. Gates testified that there was light-duty employment available at the respondent’s plant that would have complied with the initial restrictions that were imposed by Dr. Carson on June 5, 2009. It was even Mr. Everett’s testimony that the claimant’s regular job did not require lifting in excess of 50 pounds (he did not address the other restrictions imposed by Dr. Carson). Finally, Mr. Everett stated that it was company policy to provide light or limited-duty positions to injured workers.
However, both Mr. Everett and Mr. Gates testified that, to their knowledge, no light-duty employment position had ever actually been
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offered to the claimant that would have been within the restrictions imposed by Dr. Carson. In fact, Mr. Everett testified that he would not have hired the claimant back, because he had previously resigned.
Linda Hobbs, the Human Resource Manager for the respondent testified on behalf of the respondent. In her testimony, she recalled a conversation that occurred between herself and the claimant about the availability of a light-duty position. She testified that the claimant had contacted her and inquired if any light-duty position was available. She stated that she informed the claimant that she was unaware of any light-duty position that would be available to him because he had resigned, and that light duty was not made available to a “terminated” employee. However, she advised the claimant that she would check into the matter “withe the appropriate parties” and was apparently advised that no light duty would be made available. It further appears that she never “called the claimant back”. She conceded that the claimant was never actually offered a light-duty position.
After consideration of all the evidence presented, it is my opinion that the evidence fails to show that the respondent ever “offered or procured for” the claimant “suitable employment” that complied with his medical restrictions, which were imposed as a result of his compensable injury of April 29, 2009. Without an actual offer of suitable employment, there can be no
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“refusal”, unjustified or otherwise. Thus, Ark. Code Ann. § 11-9-526 does not act as a bar to the claimant receiving any temporary total disability benefits for his compensable injury to which he would otherwise be entitled.
In reaching this finding, I have not overlooked the respondents’ argument that it should somehow be “excused” by the claimant’s previous resignation from having to actually “offer” the claimant a limited or light-duty position that would be within the medical restrictions and limitations imposed upon his potential employment activities as a result of his compensable lumbar injury. However, the provisions of Ark. Code Ann. § 11-9-526 expressly require such acontinuing offer of employment, and do not provide any excuse or exceptions. The Legislature, in its enactment of Ark. Code Ann. § 11-9-1001, made it abundantly clear that all of the provisions of the Arkansas Workers’ Compensation Act, including the provisions of Ark. Code Ann. § 11-9-526, are to be “strictly” interpreted by both this Commission and the Appellate Courts. In fact, the application of this rule to § 11-9-526 has been clearly recognized by the Court of Appeals, Superior Industries v.Thomaston, 72 Ark. App. 7, 32 S.W.3d 52 (2000).
I would note that Ark. Code Ann. § 11-9-522(c)(2) also has a qualifying requirement of providing or procuring suitable employment. However, the Legislature did see fit to “excuse” a respondent from having to actually
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provide or procure a suitable employment position for the claimant, in order to take advantage of this subsection. No actual offer of employment was necessary, if the claimant has been discharged for misconduct in connection with the work or if the claimant left the employment voluntarily and without good cause connected by the work. The Legislature was well aware of the similar requirements contained in Ark. Code Ann. § 11-9-526. Yet, it did not see fit to attach any similar “excuse” to this section, even though it could clearly have done so. For this Commission to now create such an excuse or to graft the excuse of Ark. Code Ann. § 11-9-522(c)(2) onto Ark. Code Ann. § 11-9-526, violates the mandate of strict interpretation. It is also contrary to the Court of Appeals decisions in Barnett v.Allen Canning Company, 49 Ark. App. 61, 896 S.W.2d 444 (1995) andWalker v. Cooper Automotive, CA08-519 (Ark. App. 12-17-08).
For the aforementioned reasons I must respectfully dissent.
______________________________ PHILIP A. HOOD, Commissioner
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