CLAIM NOS. E408560 E517621
DELLA CHOATE, EMPLOYEE, CLAIMANT v. LEVI STRAUSS COMPANY, EMPLOYER, RESPONDENT and SCOTT WETZEL SERVICES, CARRIER, RESPONDENT Before the Arkansas Workers’ Compensation Commission
OPINION FILED FEBRUARY 11, 1998
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by TIMOTHY L. BROOKS, Attorney at Law, Fayetteville, Arkansas.
Respondent represented by CONSTANCE G. CLARK, Attorney at Law, Fayetteville, Arkansas.
Decision of Administrative Law Judge: Affirmed.
[1]
OPINION AND ORDER [2] Claimant appeals from a decision of the Administrative Law Judge filed May 21, 1997 finding that claimant has failed to prove by a preponderance of the evidence entitlement to benefits under Ark. Code Ann. §
11-9-505(a)(1). Based upon our de novo review of the entire record, we find that claimant has failed to prove that respondent, without reasonable cause, refused to return claimant to work where suitable work was available within claimant’s physical and mental limitations. [3] Claimant has been an employee of Levi Strauss for over 22 years. In 1984, claimant developed bilateral carpal tunnel syndrome and underwent carpal tunnel release surgery performed by Dr. James Moore. After undergoing the release surgery, the claimant returned to work for respondent and continued to work on the production line meeting her production requirements. Claimant again began to develop problems with her hands and wrists in the early 1990’s. In 1994 claimant underwent second bilateral carpal tunnel release surgeries as well as trigger finger release to her left ring finger and right middle and ring finger. In 1995 claimant underwent thumb reconstruction surgery for her left thumb and had a pyrogenic granuloma excision on the palm of her left hand done also in 1995. In 1997, claimant underwent a trigger finger release surgery for her left middle finger. Each of these surgeries were performed by Dr. Moore, were accepted as compensable and benefits paid. Dr. Moore eventually assigned claimant a 10% impairment rating to each upper extremity and placed strict restrictions upon claimant. For the longest time, Dr. Moore’s restrictions were simply no sewing. However, after claimant underwent a functional capacity evaluation in the fall of 1995 specific restrictions were outlined as follows:
I will review her functional capacity evaluation but it appears she can’t do repetitive sewing work. I believe she should do office work but no sewing. She may need an early retirement. She should not lift over two pounds on a repetitive basis. She can’t flex repetitively flex and extend her wrist more than 15 times an hour. (Emphasis added.)
[4] On January 5, 1996, Dr. Moore did state that claimant could work as a permanent trainer but she would not be able to do regular, full sewing job or strenuous pulling with her fingers. [5] Claimant was placed in a light-duty, temporary job of assisting in the human resources office and of assisting a trainer. When permanent jobs failed to open after an extended period of time, claimant was terminated in January of 1996. In the spring of 1996, after it was determined that based upon respondent’s union contract claimant was eligible for twelve months leave of absence, claimant’s status was retroactively changed from termination to leave of absence allowing claimant to accrue time towards full retirement. It was also during this period of time that respondent had Advantage Health of Kansas City perform a work site analysis to determine if there were any positions within respondent’s facility which were compatible with claimant’s restrictions. This analysis revealed two jobs within respondent’s facility, which claimant was physically capable of performing within the restrictions placed upon her by her treating physician. These were the jobs of slide and stop position and attach zipper position. However, when the jobs were identified as matches, there were no openings in either of these positions. The record reflects that respondent learned of the availability of one of these positions approximately one week prior to the hearing after the person currently holding one of these positions submitted a formal resignation effective September, 1997. The record further reflects that claimant was offered this position through certified mail, but had yet to receive the offer at the time the hearing took place. [6] Claimant contends that she is entitled to benefits pursuant to Ark. Code Ann. §
11-9-505(a)(1) which provides:
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.
[7] 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:
(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;
(4) That the employer’s refusal to return the claimant to work was without reasonable cause.
[8] 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:
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.
[9] After reviewing the evidence in this case, particularly the testimony of Christy Jones, a trainer, Michelle Woods, a supervisor and former trainer, and Carolyn Walker, we are not persuaded that claimant has met her burden of proof showing that suitable employment was available within her physical limitations. While claimant adamantly testified that she could perform the job of trainer or supervisor given her physical limitations, we cannot find that her eagerness to perform this job actually means that she is physically capable of performing these jobs as described by employees currently holding these positions. Each employee testified that the jobs of trainer and supervisor are hand intensive, requiring repetitive sewing and use of the hands to check finished products as well as requiring considerable lifting. Although testimony between the witnesses varied on the amount of actual sewing from 2 to 6 hours per shift, it was abundantly clear that while sewing may not be required during an entire 8 hour shift, these employees are continuously using their hands in intensive maneuvers the entire time they work. Moreover, the testimony of these employees, as well as of the human resource employee, indicates that the trainers must sew at 80% production efficiency in order to hold the position of trainer. Given claimant’s restrictions she cannot meet this qualification. [10] With regard to the position of supervisor, the evidence indicates that the supervisors must use their hands as much as a trainer although they may not actually be sewing at a machine quite as much. Supervisors have to use nippers to check and undo stitches which is described as harder on the hands than physical sewing. In addition, supervisors, when they sew, must sew at production speed in order to make sure that the machines are operating efficiently. Supervisors must also check bundles, trim bundles, number plies of material and lift constantly throughout the day. When checking product for defects, supervisors and trainers must use their hands to physically turn over each piece and visually inspect the stitches. [11] In light of this testimony, we find that claimant has failed to prove by a preponderance of the evidence that suitable employment within her physical restrictions was available with respondent. We further find that claimant has failed to prove by a preponderance of the evidence that respondents refusal to return her to work under her limitations was unreasonable. Although respondent did create a light-duty, temporary job for claimant in the human resource office and as a trainer assistant, the record reflects that these were only temporary jobs which were created for claimant when she was first placed on light-duty restrictions. The Court in Torrey indicated that an employer has a potential duty to reclassify a position for an injured employee’s benefit. However, the Court did not indicate that an employer is legally obligated to create an otherwise non-existent job classification when the claimant desires to return to work. Maria Jacobo v.Simmons Industries, FC Opinion August 19, 1997 (
E410386). [12] Since claimant performed the job of trainer assistant, she appears to be implying that she can perform these same duties in a permanent position as trainer. However, as noted above, employees who hold or have held the position of trainer clearly indicated that this position does not fall within claimant’s severe work restrictions. Thus, it is clear that as a trainer’s assistant claimant did not perform all the job functions of an actual trainer as such duties are clearly beyond her restrictions. We cannot find that respondent’s refusal to return claimant to work in a position that is not within her work restriction to be an unreasonable refusal to return claimant to work. In our opinion, work restrictions must be adhered to when determining whether claimant is physically capable of performing certain jobs. While the claimant’s efforts are admirable that she would like to work in these positions and that she would try to work in these positions, these admirable qualities ignore the physical restrictions placed upon claimant by her treating physician. [13] We realize that it did take respondent several months to finally offer claimant a job within her restrictions, however, we note that the record clearly indicates that there were no job openings at respondent’s facility within claimant’s restrictions until shortly prior to the hearing. We do not believe that this is a case where respondent made a half-hearted offer of employment immediately prior to the hearing in order to alleviate any potential liability exposure. In fact, the record shows that the respondent acted in the best way it knew how in finding a job for claimant within her physical limitations. The record reflects that claimant was asked on numerous occasions if she knew of any jobs within the facility which she could perform. Each time, claimant advised respondent that there were no jobs she could do given her lingering problems with her hands and her limitations other than that of trainer or supervisor. As noted above, these positions do not fall within her physical restrictions. Despite the work release of Dr. Moore stating that claimant could perform the job of trainer, the functional capacity evaluation clearly prohibits claimant from performing any sewing activities. Moreover, there is no evidence that Dr. Moore based his release for the trainer position on anything more than information provided to Dr. Moore by the claimant. Since Dr. Moore okayed this position it appears as if the information claimant provided to Dr. Moore consisted of her duties as a trainer’s assistant, the job she performed temporarily which did not include sewing duties. [14] Since it was known that the trainer and supervisor positions involved sewing, we find nothing wrong with the fact that Advantage Health did not have the requirements to determine if these positions fell within claimant’s restrictions. Obviously any position that involved sewing, lifting or repetitive flexion of the wrist would not fall within claimant’s restrictions. [15] While respondent did initially terminate claimant in January of 1996, that was rectified in the spring of 1996 when claimant was placed on medical leave of absence. In addition, respondent conducted a survey by an outside company to determine if there were any jobs available within the plant which fit within claimant’s physical limitations. Two jobs were identified; however, there were no openings within those two jobs. As soon as an opening became available and once the union agreed to forego the usual and customary practices of offering job opportunities to all employees, claimant was advised of the availability of this job and asked to present to work on a specific date if she wanted that job. In our opinion, we cannot find respondent’s actions to be unreasonable. [16] Accordingly, for those reasons set forth herein, we find that claimant has failed to prove by a preponderance of the evidence entitlement to additional benefits pursuant to Ark. Code Ann. §
11-9-505(a). We cannot find that respondent acted without reasonable cause in its efforts to return claimant to work. Therefore, we affirm the decision of the Administrative Law Judge. [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 in this case. Based upon my de novo review of the record, I would find that the claimant was entitled to the benefits in question. Accordingly, I would reverse the Administrative Law Judge’s decision. [21] The claimant in this case has been employed by the respondent for over twenty-two years. However, in January of 1996, the claimant’s employment with the respondent was terminated only 17 months prior to the time she would have reached full retirement. Shortly after the prehearing was held in this case, the respondent reclassified the claimant’s status and placed her on unpaid medical leave of absence. [22] The claimant contends on appeal, as she did below, that she is entitled to benefits pursuant to Ark. Code Ann. §
11-9-505(a)(1) (Repl. 1996). She specifically contends that the respondent had suitable employment available within her restrictions and that the respondent refused to return her to work without reasonable cause. I believe that the claimant met her burden of proof and that the respondent simply attempted to cover themselves on all bases. Therefore, I would reverse the Administrative Law Judge’s decision. [23] The parties in this case stipulated that the claimant sustained a compensable injury on November 29, 1993, thus satisfying the first requirement to receive the benefits in question. The second requirement is the main dispute in this case; i.e., whether or not suitable employment within the claimant’s physical and mental limitations was available with the respondent. The evidence in this case indicates that after the claimant returned to light duty with the respondent in the Fall of 1995, the claimant worked as both an assistant in the human resources department and also performed the position of a temporary trainer. [24] Testimony indicated that between the time of the claimant’s termination and the hearing below the positions of trainer and supervisor had become available and filled without the respondent contacting the claimant and offering her the positions. While the respondent alleges that the claimant did not contact them or apply for these positions, the testimony by the respondent’s human resources representative, Theresa Reinert, indicates that the respondent was going to contact the claimant if a position became available. Ms. Reinert testified that the respondent was checking on different types of positions that the respondent might have that the claimant could perform, and further testified that they would let the claimant know if a position became available. In response to cross-examination, Ms. Reinert admitted that it was her duty to contact the claimant if a position became available, not the claimant’s duty to keep checking in almost everyday as the respondent alleges in their brief. Ms. Reinert admitted that her personal notes stated that: “Dr. Moore sees Della [the claimant] and writes that she could do training but not regular sewing and no strenuous pulling of finger.” Ms. Reinert’s note of January 19, 1996, further stated that, “There are no open training jobs,” indicating that the claimant would have been considered for one of the training positions had one become available. However, Ms. Reinert further admitted that when the trainer position became available she did not even consider the claimant for the position. Mr. Reinert also admitted that the respondent will “make a reasonable accommodation to a job to help somebody out with a restriction that they have,” and that they will also make modifications to a position to fit an employee’s restrictions. Ms. Reinert admitted that the respondent did not do any type of analysis to see if the trainer job could be modified to fit the claimant’s restrictions. [25] The respondent also called Denise Cone, the prevention, safety and health process leader for the respondent, to testify as to the positions available and the evaluations performed to see if the claimant could perform one of the positions. Ms. Cone testified that the respondent requested Advantage Health to look for compatible jobs that the respondent had that might fit the claimant’s restrictions. Ms. Cone admitted that Advantage Healthdid not have the requirements or necessary information in regard to the trainer or supervisor positions in order to evaluate the claimant for those positions to see if there was a match. Ms. Cone went on to admit that this is her area of expertise and that the results of the Advantage Health results were questionable in her mind, due to not even having all of the positions available to evaluate. [26] The claimant testified that she had been employed by the respondent for over twenty-two years and gave extensive testimony that she was clearly aware of the duties required to perform the positions of trainer and supervisor. She testified that she was familiar with the physical requirements and the hand motions necessary to perform the trainer position. She further stated that she believed she could perform the position of trainer if simply given the opportunity. The claimant also testified that she was aware of the duties necessary to perform the position of a supervisor and that she had both the knowledge and experience to perform that position as well. [27] Four different witnesses, including the claimant, testified that, aside from the claimant’s physical restriction, she was qualified to perform either of these two positions (trainer or supervisor). Christy Sue Jones testified that she is a trainer for the respondent and that she only sews for about an hour and a half to two hours a day, and that the sewing is spread out over the course of the day. Michelle Wood testified that she is currently a night shift supervisor and that she was a trainer prior to becoming a supervisor. Ms. Wood testified that when she was a trainer she only sewed, “I would say on a daily basis maybe 30 minutes.” [28] Carolyn Walker testified that she had been employed by the respondent for over twenty-seven years. She testified that she was a supervisor and that her position was renamed to “slash team coordinator.” Ms. Walker testified that she had carpal tunnel syndrome and had undergone surgery to correct her hand problem. She stated that despite her prior surgery and continuing hand problems, she has been able to function as a supervisor for almost four years. Ms. Walker testified that she was familiar with the claimant and had worked with her in various capacities for several years. She testified that the claimant was a good worker and that due to her twenty-two years of experience with the respondent, she believed that the claimant was qualified to perform the positions of trainer or supervisor. [29] The record in this case also indicates that the doctor responsible for all of the claimant’s medical treatment and assigning her restrictions believed the claimant could perform the position of trainer. Prior to the claimant being terminated after twenty-two years of service, Dr. Moore stated in his letter of January 5, 1996, that he believed the claimant could “probably best work as a permanent trainer. She will not be able to do a regular, full sewing job or strenuous pulling with her fingers.” While the majority opinion and respondent questions Dr. Moore’s opinion due to the doctor stating “probably”, Dr. Moore stated in his deposition that his opinion was stated “within a reasonable degree of medical certainty.” Dr. Moore did not state that the claimant could not do any sewing, only that she could not perform that task all day. As all of the witnesses testified above, the positions of trainer or supervisor do not require the workers to sew all day, or even four to six hour a day as the respondent seems to try and mislead this Commission to such an assumption. [30] The evidence in this case is also clear that the third requirement was also met. The respondent did not offer the claimant a position for over a year, between the time of her termination in January of 1996, and the hearing in April of 1997. The statute in question only allows for one year of benefits. So, the fact that the respondent made the claimant an offer in April of 1997, is irrelevant as the claimant would already be due the one year of benefits. However, it is extremely interesting to look at the sequence of events in this case in order to evaluate the respondent’s credibility in regard to trying to return the claimant to work. While the claimant was terminated after twenty-two years of service in January of 1996, it was not until the claimant filed the underlying claim and the prehearing conference was held that the respondent all of the sudden reclassified the claimant’s status and placed her on unpaid medical leave. In regard to whether or not the respondent made the claimant an offer, it was not until the day prior to thehearing below that the respondent made the claimant a job offer by mail, one which the claimant said she would be willing to accept. The respondent’s representative also admitted that they knew of the job opening in March, but they did not bother sending the claimant notice of the position until the day prior to the hearing in April. [31] The respondent has also failed to show they had “reasonable cause” to refuse to return the claimant to one of the positions in question. Even if the jobs in question are “hand intensive” as the respondent attempts to assert, in Torrey v. City of FortSmith,
55 Ark. App. 226,
934 S.W.2d 237 (1996), the Court of Appeals stated that 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.” The respondent would not have been required to create a new position for the claimant, but would only have been required to make a few simple accommodations in the position as it exists in order for the claimant, an employee of twenty-two years, to remain employed. The respondent’s representative even admitted that they try to make accommodations or modifications to fit the restrictions. However, the trainer position was never considered by the respondent even with Dr. Moore’s recommendation, or even analyzed or evaluated by Advantage Health. Both Ms. Reinert and Ms. Cone simply substituted their opinions for that of the claimant who had twenty-two years of experience, and Dr. Moore who set the claimant’s restrictions. [32] The respondent attempts to cast doubt on Dr. Moore’s opinion that the claimant could perform the trainer position by pointing out that he had never been to the plant to see how the position was actually performed. However, Ms. Reinert had to admit that she was “not familiar with the day-to-day physical requirements of the jobs” herself and she simply relied on the written descriptions when stating the claimant could not perform these positions. [33] The claimant clearly should have been awarded the benefits in question as the purpose of the statute in question has been violated. The respondent’s actions in this case are unconscionable and reprehensible, to abandon an employee with twenty-two years of service who was injured on the job several times and had to endure surgery after surgery only to be terminated just prior to her retirement. The respondent tries to absolve themselves of liability. They try to appear to be accommodating by placing her on unpaid medical leave just after the prehearing conference. They then have Advantage Health perform an elaborate evaluation of the positions available to try and find one that fits the claimant’s restrictions, only to find out that the two positions the claimant and her doctor state she can perform were not even evaluated. Also, Ms. Cone, the respondent’s own health and safety person, questions the credibility of the Advantage Health evaluation, clearly showing the study was meaningless and entitled to no weight in determining the respondents’ effort to return the claimant to work. The majority opinion simply accepts the respondents’ position on these issues and has simply allowed the respondent to violate the clear intent in the statute of returning claimants to work. [34] The evidence in this case clearly shows that: the claimant sustained a compensable injury; suitable employment was available that fit the claimant’s restrictions; the respondent refused to return the claimant to employment; and, the respondents’ refusal to return the claimant to work was unreasonable. We should not encourage and condone such actions on the part of employers by affirming such decisions. Accordingly, I would reverse the Administrative Law Judge’s decision in this case, and award the claimant the benefits she was clearly entitled to receive. [35] PAT WEST HUMPHREY, Commissioner