CLAIM NO. E709351
Before the Arkansas Workers’ Compensation Commission
OPINION FILED APRIL 25, 2002
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE LEON MARKS, Attorney at Law, Little Rock, Arkansas.
Respondents represented by the HONORABLE GAIL PONDER GAINES, Attorney at Law, Little Rock, Arkansas.
Decision of the Administrative Law Judge: Affirmed.
OPINION AND ORDER
The respondent appeals to the Full Workers’ Compensation Commission an Administrative Law Judge’s opinion filed August 29, 2001. The Administrative Law Judge found that the claimant was entitled to temporary total disability compensation from May 10, 1999 through October 5, 2000. The Administrative Law Judge also found that “The claimant sustained a compensable occupational illness in the employment of respondent; suitable employment within the claimant’s physical and mental limitations was available with respondent; respondent refused to return the claimant to work; and respondent’s refusal to return the claimant to work was without reasonable cause.” The Administrative Law Judge thus found that the claimant was entitled to benefits pursuant to Ark. Code Ann. § 11-9-505(a)(1). After reviewing the entire record de novo, the Full Commission affirms the opinion of the Administrative Law Judge.
I. HISTORY
Karen Cox, age 53, began working as a licensed practical nurse for Baptist Health in December 1990. The parties stipulated that Ms. Cox sustained an occupational injury on July 24, 1997. Dr. Jerry L. Potts, an otolaryngologist, wrote on August 11, 1997:
Karen Cox works as a licensed practical nurse on the fifth floor at Baptist Memorial Medical Center. In January she had permanent tubes inserted into her ears after severe otitis media. Post operatively, she continues to have problems and I saw her in June with a history of continued congestion in her ears. I ordered a CT scan of her sinuses and mastoids which was normal. On July 21, she came to the office with drainage from her left ear which turned out to be methicillin resistant staph aureus. Mrs. Cox has worked around patients with MRSA and may very well have contracted the MRSA from one of her patients on the fifth floor at Baptist Memorial Hospital.
Dr. Potts released the claimant to return to work on March 15, 1999.
The claimant agreed at hearing that she did not work for the respondent-employer after May 1999. Testimony from Gwen Wetzel, an administrator with Baptist Health Personnel, indicated that the respondent ceased providing medical treatment after May 1999.
Dr. Potts wrote to the carrier on November 9, 1999:
It is my opinion that Mrs. Cox has permanent colonization of her left ear by Methicillin Resistant Staph Aureus. Normally, she has no symptoms with the left ear, but every few months, begins to have swelling and drainage in the left ear canal. We have cultured this several times and Methicillin Resistant Staph always is cultured out. Although the risk to patients that Mrs. Cox might care for is small, there is a real possibility that MRSA could be transferred to a patient under her care. I would, therefore, advise that she be given duties other than direct care of patients.
Dr. Potts wrote to the claimant’s attorney on May 10, 2000:
Karen Cox continues to have drainage and crusting of the skin near the opening of her left ear canal. A culture done within the last two weeks again shows Staph aureus although it again is not methacillin resistant. It seems unlikely that this dermatitis will ever be cured. Therefore, I do not think it is safe for Mrs. Cox to work in a hospital environment even if she is not working directly with patients. She is, therefore, disabled from the standpoint of being able to work as a nurse.
Dr. Potts released the claimant to return to work on October 5, 2000, but stated that “she should not be involved with direct patient care since the left ear continues to drain.” The claimant testified that she had asked Dr. Potts to release her to work, and that she in fact attempted to return to work at this time:
Q. What positions have you applied for?
A. The first one was the ER rep, patient rep, and there was patient accounts. I can’t think of the other one. I have applied for three positions.
Q. Do you want to go back to work?
A. Oh, yes, very much so. . . .
Q. How many times have you been interviewed by employees at Baptist Health for prospective positions?
A. Once, in the Patient Accounts Department.
Q. And have you been given any reasons for not being hired?
A. No, sir.
The respondent’s attorney cross-examined the claimant:
Q. When you began working with Brenda Edmonson to look for jobs at Baptist, did you put restrictions on the location where you would work?
A. I told her I would prefer Baptist Memorial. . . .
Q. Did you put restrictions on the amount of pay you would accept?
A. I don’t remember, but you said I did.
Jimmy Looney, a private investigator, testified that he saw the claimant in Amboy Barber Shop in North Little Rock on October 17, 2000. Mr. Looney testified that the claimant was performing “the normal duties of a beautician.” Mr. Looney surreptitiously videotaped the claimant cutting his hair, and the claimant told Mr. Looney that she worked on Tuesdays, Fridays, and Saturdays. Mr. Looney pretended that he was interested in becoming a regular customer of the claimant in the barber shop. He paid the claimant for his haircut and never saw her again.
Brenda Edmonson, an employment specialist for Baptist Health, first contacted the claimant on November 1, 2000 in order to assist the claimant in finding a job. Ms. Edmonson testified:
Q. Have you ever transmitted a transfer form on behalf of Ms. Cox for a job?
A. Yes, sir.
Q. And how many times have you done that?
A. There were two actual positions that she made the decision to apply for, and she applied for those two by transmittal form. . . .
Q. And to whom did you send it?
A. In December, December the 5th, we sent the first form for LPN clinical review analyst to Baptist Medical Center in Little Rock. That would have been to the Case Coordination Department. And then on January the 15th, we sent a transfer form — transmittal form to North Little Rock to the emergency room area for an admission rep position. . . .
Q. And do you know of any reason why Ms. Cox was not hired for either of those positions?
A. Well, yes, sir. The explanation that was given to me for the first position was that they had rehired the employee who had been there five years who had left and wished to come back. So she had the greater experience which qualified her for the position. Karen had no utilization experience at all.
Q. Was this person that was hired, was she a current employee?
A. No, sir, she had left.
Q. And what about the other position?
A. The other position was applied for on January 15th. Karen’s 90 days expired on 1-17-01, and she was not selected for that position.
The claimant testified that the respondent-employer did not offer her another job, and that her employment was terminated on January 17, 2001. Gwen Wetzel testified:
Q. Why was Ms. Cox terminated from employment?
A. Ms. Cox was terminated from employment because she had been on a medical leave of absence for a year, and that’s as long as any employee, regardless of why they are out, is allowed to be on a leave of absence. That is the old policy. In January of 2001, we revised that policy and now you can only be on medical leave of absence for a maximum of six months.
Q. How long was Ms. Cox on medical leave of absence?
A. A little over a year, I believe.
Ms. Cox claimed entitlement to additional workers’ compensation. The claimant contended that the respondent terminated her employment on January 17, 2001, when the respondent “without reasonable cause refused to return her to suitable employment where the same was available.” The claimant contended that she was entitled to benefits pursuant to Ark. Code Ann. § 11-9-505(a)(1). The respondent contended that the claimant had not shown that she was entitled to benefits beyond those already paid, and that the claimant was not entitled to benefits pursuant to Ark. Code Ann. § 11-9-505(a)(1). The respondent contended that it had overpaid temporary total disability compensation, and that it was entitled to a credit for benefits paid after May 1999.
The record includes a memorandum from Kris Curtis to Brenda Edmonson dated June 11, 2001:
I interviewed Karen Cox Friday, 6-8-01. She also interviewed with the Director, Pat Keeler. After discussing her with Pat, we have decided that we cannot hire her in Patient Accounts.
Her typing skills are marginal as stated by her. She does not know 10-key and she does not have any medical billing background. Also, her general attitude seemed to me to be negative. We have other applicants with more experience that would better meet our needs.
After a hearing before the Commission, the Administrative Law Judge found, “The claimant sustained a compensable occupational illness in the employment of respondent; suitable employment within the claimant’s physical and mental limitations was available with respondent; respondent refused to return the claimant to work; and respondent’s refusal to return the claimant to work was without reasonable cause.” The respondent appeals to the Full Commission.
II. ADJUDICATION A. Return to work
Ark. Code Ann. § 11-9-505(a) provides:
(1) 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 to the employee the difference between benefits received and the average weekly wages lost during the period of such refusal, for a period not exceeding one (1) year.
In order to prove entitlement to benefits pursuant to Ark. Code Ann. § 11-9-505(a)(1), the employee must establish (1) that she sustained a compensable injury; (2) that suitable employment within her physical and mental limitations was available with the employer; (3) that the employer refused to return the employee to work; and (4) that the employer’s refusal to return the employee to work was without reasonable cause. Torrey v. City of Fort Smith, 55 Ark. App. 226, 934 S.W.2d 237
(1996).
In the present matter, the Administrative Law Judge correctly noted (1) that the claimant sustained a compensable injury. The Administrative Law Judge found (2) that suitable employment within the claimant’s physical and mental limitations was available with the employer. The Administrative Law Judge determined, “The evidence preponderates that respondent refused/failed to return the claimant to work while claimant remained an active employee of same when two positions were identified within the claimant’s mental and physical limitations but were not provided to her. A third requirement of Torrey has been satisfied.”
Finally, the Administrative Law Judge found, “In the instant claim, respondent’s refusal to return the claimant to work subsequent to October 19, 2000, was without reasonable cause. The evidence preponderates that the claimant has satisfied the forth (sic) requirement of the Torrey
test.” The Administrative Law Judge directed the respondent to pay the claimant “additional compensation benefits pursuant to Ark. Code Ann. § 11-9-505(a)(1) based on the claimant’s average weekly wage of $412.00, less approximately $100.00, claimant earned per week cutting hair during the period of respondent’s refusal to return the claimant to work subsequent to October 19, 2000, and continuing during such period of refusal, not to exceed one year.”
The respondent contends that the claimant is not entitled to benefits pursuant to Ark. Code Ann. § 11-9-505(a)(1). The respondent first argues that § 11-9-505(a)(1) does not apply, because “the claimant is not currently receiving compensation.” The respondent cites Davis v.Dillmeier Enterprises, 330 Ark. 545, 956 S.W.2d 155 (1997). In Davis, the Supreme Court cited Ark. Code Ann. § 11-9-505 and stated, “We construe the plain language of that provision as providing benefits in addition to those workers’ compensation benefits already being received by the claimant.” The respondent asserts that “Since the employee was no longer receiving any compensation for her injury, the Court in Davis held that the employee did not qualify for additional benefits under Ark. Code Ann. § 11-9-505.”
In Davis v. Dillmeier Enterprises, supra, the Supreme Court stated that “The sole issue raised by Appellant is whether an employee who is discriminated against based upon a disability resulting from a work-related injury may sue her employer under the Arkansas Civil Rights Act.” The Court in Davis concluded that “this case presents an issue of employer discrimination, rather than a situation where the employer has refused to return the injured employee to work.” The instant matter does not include an issue of employer discrimination, which issue was present in Davis. Therefore, the Full Commission finds that the respondent’s reliance on Davis v. Dillmeier has no merit in the present case. See,McGee v. Clayton Kidd Logging Company, Workers’ Compensation Commission E904834 (March 1, 2001).
In the present matter, the respondent concedes (1) that the claimant sustained a compensable injury, and (2) that suitable employment was available within the claimant’s restrictions. The respondent contends that its refusal to return the claimant to work was with reasonable cause. The Dissenting Opinion contends that the respondent “made every effort” to find the claimant a job and that the respondent had “advised” the claimant regarding these jobs. The Dissenting Opinion asserts that Brenda Edmonson made the claimant aware of at least three jobs within the claimant’s physical restrictions, but that the claimant was not interested in these jobs because the pay was too low compared to her pre-injury salary. The Dissenting Opinion also contends that the claimant restricted the location of her job search, that is, that the claimant refused to leave North Little Rock for her employment.
According to the record, however, the claimant credibly testified that she had applied for three positions with the respondent-employer, but that she was not hired and was not told why she was not hired. The claimant testified that she “very much” wanted to return to work with the respondent, where she had been employed for over ten years. Although the claimant testified that she preferred to work at Baptist Medical Center in North Little Rock, the record shows that the claimant applied for the position of credit review analyst in Little Rock.
Furthermore, the case of Torrey v. City of Fort Smith, supra, discusses an employer’s obligation to assist an employee to better facilitate the employee’s return to the workplace and discusses an employee’s purported justification in not hiring an injured employee, because the employer instead chose to fill an open position with a “more qualified” applicant. The Court of Appeals explained in Torrey:
In the present case, appellant has proved that he suffered a compensable injury; that there was suitable employment within his restrictions available with his employer, and that the employer refused to return him to work. A more difficult question arises when we question whether appellee’s reason for not rehiring appellant was unreasonable. Appellee’s stated reason for not hiring appellant to fill either position was that a “more qualified” individual was hired instead. The Commission accepted this explanation and found that the appellee had demonstrated that reasonable cause existed for not rehiring appellant. Further, the Commission noted that once a position is filled there is no longer suitable employment available to be the basis of the employer’s refusal to return the employee to work, as provided in this statute.
We believe that the Commission’s interpretation is too narrow to allow the true intent of the legislature to be realized. The Commission made a finding that the employer had shown reasonable cause for not returning an injured employee to work, where the employer stated that a “more qualified” person was hired. In accepting the employer’s explanation, the Commission, in effect, allows the employer to nullify the stated legislative purpose while exercising minimum effort to return the employee to work. Likewise, the Commission’s interpretation allows subjective reasoning to factor into what constitutes reasonable cause, whereas an objective standard is more compatible with the legislative intent and purpose.
* * *
Appellee employs over 600 persons, yet the evidence presented fails to demonstrate that any effort was made on the part of the appellee to assess appellant’s skills or to offer him assistance to enhance his skills so as to better facilitate his re-entry into the work place.
See, Torrey, at pp. 230-31.
As we interpret the Court of Appeals’ holding in Torrey, an employer’s refusal to place an injured employee into an available position merely because a “more qualified” candidate may exist does not constitute reasonable cause pursuant to Ark. Code Ann. § 11-9-505(a)(1). Furthermore, contrary to the suggestion of the respondents and the dissenting Commissioner in the present case, we understand that an employer does not fulfill its obligation of assisting an employee’s re-entry to the workplace (1) simply by making the employee aware of job openings paying substantially less money than the employee was making at the time of the injury and (2) where the employer makes no attempt to return the employee to work in other job openings within the employee’s physical and mental limitations that do pay a salary comparable to the employee’s salary at the time of the injury. The respondents cite us to no authority, nor do we see merit in their suggesting, that the employer satisfied its Section 505(a) obligations by making the claimant aware of three low paying jobs, and/or that the claimant somehow waived her right to Section 505(a) benefits by not pursuing these low paying jobs. The Full Commission therefore affirms the Administrative Law Judge’s finding in the present matter that the respondent-employer’s refusal to return the claimant to work was without reasonable cause. We thus affirm the Administrative Law Judge’s award of one year of additional compensation benefits, pursuant to Ark. Code Ann. § 11-9-505(a)(1).
B. Temporary total disability
The Administrative Law Judge determined that the respondent paid temporary total disability compensation “for the period May 10, 1999 through November 7, 1999, and January 7, 2000 through September 14, 2000.” The Administrative Law Judge determined, however, that “the claimant was not released to return to work by her authorized treating physician during the period May 10, 1999 through October 5, 2000.” The Administrative Law Judge directed the respondent to pay temporary total disability “for the period covering July 25, 1997 through November 28, 1997; September 14, 1998 through October 4, 1998; February 12, 1999 through March 17, 1999; May 10, 1999 through October 5, 2000.”
Although the respondent paid temporary total disability compensation through September 14, 2000, the Dissenting Opinion now contends that the claimant was not entitled to temporary total disability beyond May 19, 1999. The Dissenting Opinion asserts that there were no “MRSA positive cultures” after May 1999. However, we note from the record that the treating physician, Dr. Potts, did not release the claimant to return to work until October 5, 2000. On appeal, the claimant cites correspondence from Dr. Potts dated November 1999 and May 2000. On both occasions, Dr. Potts stated that the claimant was not ready to return to her nursing duties at the hospital. After de novo review of the entire record, the Full Commission affirms the Administrative Law Judge’s finding that the claimant was temporarily totally disabled from May 10, 1999 through October 5, 2000.
Based on our de novo review of the entire record, the Full Commission affirms the Administrative Law Judge’s finding that the claimant was temporarily totally disabled on all relevant dates, including from May 19, 1999 through October 5, 2000. We affirm the Administrative Law Judge’s finding that the respondent’s refusal to return the claimant to work was without reasonable cause, pursuant to Ark. Code Ann. §11-9-505(a)(1). The Full Commission therefore affirms, in its entirety, the opinion of the Administrative Law Judge.
All accrued benefits shall be paid in a lump sum without discount and with interest thereon at the lawful rate from the date of the Administrative Law Judge’s decision in accordance with Ark. Code Ann.§ 11-9-809 (Supp. 2001).
For prevailing on this appeal before the Full Commission, the claimant’s attorney is hereby awarded an additional attorney’s fee in the amount of $250.00 in accordance with Ark. Code Ann. § 11-9-715
(Supp. 2001).
IT IS SO ORDERED.
______________________________ ELDON F. COFFMAN, Chairman
______________________________ SHELBY W. TURNER, Commissioner
Commissioner Yates dissents.
DISSENTING OPINION
JOE E. YATES, Commissioner
I must respectfully dissent from the majority’s opinion finding that the claimant was entitled to benefits under Ark. Code Ann. § 11-9-505. Based upon my de novo review of the record, I find that the claimant has failed to meet her burden of proof.
In my opinion, the respondent has made every effort to locate a job within the Baptist System for the claimant and she has been advised of those available jobs. The testimony of Ms. Edmonson indicates that she found at least three jobs initially that were within the claimant’s medical restrictions and experience. The claimant outright rejected those positions because the salary was too low. The evidence shows that the claimant has also placed a restriction as to the type of job that she would hold. When a job opened up that required some clerical skills, the claimant refused to apply for them. The claimant also placed a restriction on the location of her job search. However, the claimant testified that she was not dissatisfied with the respondent’s efforts to return her to work.
Further, the claimant has been working as a barber three days a week in her husband’s barber shop. The claimant was also keeping her grandchildren five days a week. The evidence clearly shows that the limitations the claimant placed on the job search were all self-imposed and that the respondents made every effort to return the claimant to work. Therefore, the claimant fails to satisfy the fourth requirement ofTorrey that the respondent’s refusal to return her to work was without reasonable cause.
The evidence also indicates that the claimant is not entitled to any temporary total disability benefits beyond May 19, 1999. Therefore, I must dissent from the majority’s award of benefits through October 5, 2000. The medical record indicate that the claimant failed to have MRSA positive cultures after May of 1999. The claimant testified during the hearing that she had not been to the doctor for her ears for a year and that she had not taken any medication. It is clear that the claimant was not in her healing period after May of 1999. Therefore, she is not entitled to any temporary total disability benefits.
Therefore, for all the reasons set forth herein, I must respectfully dissent from the majority’s opinion.
_______________________________ JOE E. YATES, Commissioner