CLAIM NO. E308852
Before the Arkansas Workers’ Compensation Commission
OPINION FILED OCTOBER 6, 1995
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE RANDOLPH C. SHOCK, Attorney at Law, Fort Smith, Arkansas.
Respondents represented by the HONORABLE JOHN BEASLEY, Attorney at Law, Fort Smith, Arkansas.
Decision of Administrative Law Judge: Affirmed in part and reversed in part.
[1] OPINION AND ORDER
[2] The claimant appeals an opinion and order filed by the administrative law judge on May 12, 1994. In that opinion and order, the administrative law judge found that the claimant’s healing period ended on August 23, 1993. In addition, the administrative law judge found that the claimant was not entitled to compensation for a permanent physical impairment or for wage loss disability.
[6] However, the claimant testified that she did not understand that she had been released to return to work, so she did not report to the respondent employer for work. Subsequently, the respondent employer terminated the claimant due to excessive unexcused absences which accumulated after she was released from Dr. Standefer’s care on August 23, 1993. In this regard, the respondent employer sent the claimant a certified letter dated September 3, 1993, that contained the following:. . . At present, the mainstay therapy for her will be non-narcotic anti-inflammatory medication and avoidance of heavy lifting and working with the arms outstretched above the head for extended periods of time. In this regard, it is noteworthy that she is employed as a nurse’s aide. I have advised her that perhaps manipulation of her job environment would provide her with a better chance for long-term pain relief. If such is not available, then consideration for some alternative occupation, which avoids heavy lifting or alternately resumption of higher education in the form of college or vocational/technological school may well provide her with the best chance for sustained long-term pain relief. I have reviewed this with her. She is released from the clinic as of today. She may follow up with her family physician.
[7] Consequently, the claimant is no longer working for the respondent employer, and she has not otherwise obtained employment. [8] An injured employee is entitled to temporary total disability compensation during the period of time that she is within her healing period and totally incapacitated to earn wages. Arkansas State Highway and TransportationDepartment v. Breshears, 272 Ark. 244, 613 S.W.2d 392Due to excessive unexcused absence (August 24, 25, 26, an 27, 1993), which accumulated after your release on August 23, 1993 from Dr. Michael Standifer, your employment at Pinewood Nursing Home has been terminated effective September 2, 1993. Our Policy # 300:07, Page 1, #12 states four (4) unexcused absences within a twelve (12) month period is cause for termination.
(1981). The “healing period” is defined as the period necessary for the healing of an injury resulting from an accident. Ark. Code Ann. § 11-9-102 (6) (1987). The healing period continues until the employee is as far restored as the permanent character of his injury will permit. When the underlying condition causing the disability becomes stable and when nothing further will improve that condition, the healing period has ended, and the claimant is no longer entitled to receive temporary total disability compensation, regardless of their physical capabilities. Moreover, the persistence of pain is not sufficient in itself to extend the healing period or to find that the claimant is totally incapacitated from earning wages. Mad Butcher. Inc. v.Parker, 4 Ark. App. 124, 628 S.W.2d 582 (1982). The period during which the claimant is entitled to receive temporary total disability compensation does not always coincide with the end of the healing period. Breashears, supra. [9] In the present claim, we find that the claimant’s healing period ended on August 23, 1993. On that date, Dr. Standefer released her from his care with the recommendation that she avoid “heavy lifting and working with arms outstretched above the head for extended periods of time.” Dr. Standefer assigned a permanent physical impairment rating on September 14, 1993, and the respondents paid temporary total disability compensation through that date. The claimant subsequently returned to Dr. Young, and he has continued to provide treatment for persistent and chronic pain. In this regard, Dr. Young has stated that the claimant “[c]ontinues to have pain, requires muscle relaxers frequently and narcotics occasionally for control of pain.” Therefore, the treatment provided by Dr. Young is obviously directed toward pain control and not toward improving the underlying condition. However, as previously stated, the persistence of pain will not necessarily extend the healing period. Parker, supra. Therefore, we find a preponderance of the evidence establishes that the underlying condition causing the disability was stable and there was nothing further that would improve that condition at least by September 14, 1993, when Dr. Standefer rated the claimant’s permanent physical disability. Therefore, we find that the claimant’s healing period had ended by that date, and, consequently, we find that she failed to prove by a preponderance of the evidence that she is entitled to compensation beyond that date. Accordingly, the administrative law judge’s decision in this regard is affirmed. [10] We note that the administrative law judge denied the claimant’s proposed program of rehabilitation. The claimant did not appeal this issue and has not argued it in her brief. However, we find that claimant failed to prove by a preponderance of the evidence that her proposed program of rehabilitation is reasonable in relation to her disability. Therefore, we affirm the administrative law judge’s decision with regard to this issue. [11] However, we find that the administrative law judge’s finding that the claimant is not entitled to benefits for a permanent anatomical impairment must be reversed. In this regard, Dr. Standefer opined that the claimant sustained a 4% permanent physical impairment to the body as a whole. Dr. Standefer indicated that he based his rating on the American Medical Association’s Guides to the Evaluation ofPermanent Impairment. This rating is clearly supported by medical records documenting persistent muscle spasms, and decreased range of motion. In addition, a cervical MRI scan revealed disc bulging at C5-C6 and C6-C7, and a Lumbar MRI scan revealed a disc protrusion at L4-L5, which was consistent with a herniated disc. A subsequent cervical myelogram with post myelogram CT scan revealed disc bulging at C6-C7 and disc bulging or protrusion at C5-C6. Based on this evidence, we find that claimant has proven by a preponderance of the evidence that she is entitled to benefits for a permanent anatomical impairment of 4% to the body as a whole. [12] We also find that the claimant sustained an additional impairment to her earning capacity in an amount equal to 4% to the body as a whole. When determining the degree of permanent disability sustained by an injured worker, the Commission must consider the degree to which the worker’s future wage earning capacity is impaired. In addition to medical evidence demonstrating the degree to which the worker’s anatomical disabilities impair his earning capacity, the Commission must also consider other factors, such as the worker’s age, education, work experience, and any other matters which may affect the worker’s future earning capacity, including the degree of pain experienced by the worker. Ark. Code Ann. § 11-9-522 (1987); Tiller v.Sears, 27 Ark. App. 159, 767 S.W.2d 544 (1989). [13] In the present claim, the claimant is 30 years old, and she has a 12th grade education. She has been employed as a nurse’s aide, a cook, and a waitress. She still requires medications for the relief of pain. She experiences difficulty sleeping, performing household chores, recreational activities and most any other type of activity. As discussed, the medical evidence establishes that she has a 4% permanent anatomical impairment and that she must avoid heavy lifting and working with her extremities above her head. Based on this evidence, we find that the claimant sustained an impairment to her earning capacity in an amount equal to 4% to the body as a whole, in addition to the 4% permanent anatomical impairment established by the medical records. [14] In reaching this conclusion, we reject the respondents’ contention that the claimant is barred from receiving wage loss disability compensation because she refused to attempt suitable work which the respondent employer had available. Although it is not clear from their brief on appeal, their contentions at the hearing, as clarified by the administrative law judge, show that this contention is based on the provisions of Ark. Code Ann. § 11-9-522 (Cumm. Supp. 1993). In this regard, Ark. Code Ann. § 11-9-522 (b) through (d) provide the following:
[15] The Arkansas Court of Appeals has found “that § 11-9-522 (b) precludes a claim for wage loss benefits as a matter of law only during such time as the claimant has returned to work, obtained other employment, or has a bona fide and reasonably obtainable offer to be employed at wages equal to or greater than her average weekly wage at the time of the accident.”Belcher v. Holiday Inn, 43 Ark. App. 157, 868 S.W.2d 87(b) In considering claims for permanent partial disability benefits in excess of the employee’s percentage of permanent physical impairment, the commission may take into account, in addition to the percentage of permanent physical impairment, such factors as the employee’s age, education, work experience, and other matters reasonably expected to affect his future earning capacity. However so long as an employee. subsequent to his injury has returned to work has obtained other employment or has a bona fide and reasonably obtainable offer to be employed at wages equal to or greater than his average weekly wage at the time of the accident he shall not be entitled to permanent partial disability benefits in excess of the percentage of permanent physical impairment established by a preponderance of the medical testimony and evidence. [Emphasis added].
(c)(1) The employer or his workers’ compensation insurance carrier shall have the burden of proving the employee’s employment, or the employee’s receipt of a bona fide offer to be employed, at wages equal to or greater than his average weekly wage at the time of the accident.
(2) Included in the stated intent of this section is to enable an employer to reduce or diminish payments of benefits for a functional disability, disability in excess of permanent physical impairment, which, in fact, no longer exists, or exists because of discharge for misconduct in connection with the work, or because the employee left his work voluntarily and without good cause connected with the work.
(d) In accordance with this section, the commission may reconsider the question of functional disability and change a previously awarded disability rating based on facts occurring since the original disability determination, if any party makes application for reconsideration within one (1) year after the occurrence of the facts.
(1993); see also, J B Drilling v. Lawrence, 45 Ark. App. 157, 873 S.W.2d 817 (1994). Likewise, the Court has concluded that it was “the intent of the legislature to impose a bar on wage-loss benefits conditioned on continued employment or offer of employment, rather than a permanent bar. . . .” Belcher, supra; see also, Lawrence, supra. In short, the Court has ruled that the statute is only a bar during the time that the claimant continues to work or have a bona fide offer of employment. The Court has also recognized the exceptions to the rule found in 522 (c)(2) which provides that the bar continues if the claimant voluntarily terminates his employment without good cause or is terminated for misconduct. [16] In the present claim, the claimant is no longer working, and there is no bona fide offer of employment. Furthermore, she did not voluntarily terminate her employment. Therefore, the statute bars an award of wage loss compensation only if the claimant was terminated for misconduct in connection with the work. Our Courts have never addressed the meaning of the term “misconduct,” as it is used in Ark. Code Ann. § 11-9-522 (c)(2). However, inNibco. Inc. v. Metcalf Daniels, 1 Ark. App. 114, 613 S.W.2d 612 (1981), the Court construed the meaning of the term “misconduct” as it is used in the Employment Security Act. In Nibco Inc., supra, the Court reviewed numerous cases considering whether employees were dismissed for misconduct as the term is used in the Employment Security Act, and the Court concluded that the cases say that misconduct involves disregard of the employer’s interests, violation of the employer’s rules, disregard of the standards of behavior which the employer has a right to expect of his employees and disregard of the employee’s duties and obligations to his employer. However, the Court also made the following comments with regard to the definitions found in the cases reviewed:
[17] In the present claim, we first note that the respondents have the burden of proving that the termination was for misconduct in connection with the work since they have the burden of proving that an award of wage loss is barred by Ark. Code Ann. § 11-9-522 (b). After conducting a de novo review of the entire record, we find that the preponderance of the evidence does not support a conclusion that the claimant’s employment was terminated for misconduct in connection with the employment. The respondent’s September 3, 1993, letter shows that the claimant was terminated due to her failure to report to work on the day following her August 23, 1993, appointment with Dr. Standefer. However, the respondents have not presented any evidence showing how the claimant should have known that she was expected to return to work on that date. In fact, Ms. Rogers admitted that no one from the respondent employer attempted to make any contact with the claimant between August 23, 1993, and her termination. Ms. Rogers did testify that they experienced problems contacting the claimant after June 8, 1993. However, this assertion is not supported by the greater weight of the evidence. In this regard, the claimant did not have a telephone, and Ms. Rogers testified that the claimant had “refused” to accept certified mail. However, a copy of the certified envelope is in the record, and the post office stamp actually indicates that the letter was “unclaimed,” not “refused.” Moreover, this letter concerned the continuation of the claimant’s health and dental insurance, and it does not discuss the claimant’s return to work whatsoever. Ms. Rogers also testified that she had left messages for the claimant to call her with the claimant’s physical therapist and that the claimant had failed to do so. However, the claimant denied receiving any messages. Therefore, while such messages may have been left, there is no evidence showing that the messages were actually conveyed to the claimant by the physical therapist or anyone else. Likewise, Ms. Rogers indicated that the claimant’s situation was discussed with the claimant’s mother, who also works for the respondent employer. However, the claimant denies discussing this matter with her mother, and there is no evidence suggesting that these discussions were conveyed to the claimant. We also note that Ms. Linda Moore, the workers’ compensation coordinator for the respondent employer sent the claimant a letter dated August 11, 1993, by first class mail, asking the claimant to call her within 24 hours and to contact them at least once a week. There is no evidence indicating that the claimant did not contact Ms. Moore within 24 hours, and the claimant testified that she began reporting to Ms. Moore after the receipt of the letter. Again, we note that Ms. Moore’s letter dealt solely with periodic contact and with the claimant’s health care benefits. No mention is made of the claimant’s return to work or the availability of light duty employment. [18] More significantly, we find that a preponderance of the evidence indicates that the claimant did not understand that she was released to return to work during her August 23 visit with Dr. Standefer. She acknowledged that Dr. Standefer discussed her physical restrictions and her ability to return to work as a nurse’s aide, and it was her understanding that he told her that she would not be able to do the lifting required of a nurse’s aide. In this regard, Dr. Standefer’s report does indicate that he so advised the claimant. The claimant also testified that Dr. Standefer did not tell her that she could return to work; instead, she thought he was merely releasing her back to Dr. Young’s care. In this regard, we note that Dr. Standefer’s report merely states that she is released from his care, not that she is released to return to work, and Ms. Rogers acknowledged that the respondents did not have any other report from Dr. Standefer with a more definitive statement. His report also states that he advised her that she could follow up with Dr. Young. Consequently, we cannot conclude that the claimant’s understanding of her visit with Dr. Standefer is wholly unreasonable or unlikely. Furthermore, the respondents have presented no evidence contradicting the claimant’s testimony in this regard or showing otherwise that she should have realized that she was expected to report to work on August 24, 1993. [19] In short, we find that a preponderance of the evidence failed to establish that she was employed or had a reasonably obtainable offer to be employed at wages equal to or greater than her average weekly wage at the time of the injury. We also find that the claimant did not voluntarily terminate her employment. In addition, we find that the preponderance of the evidence does not show that the claimant intentionally or deliberately disregarded the interests or rules of the respondent employer to the degree necessary to show that she was terminated for misconduct in connection with the work. Although the respondent employer may have experienced some difficulty contacting the claimant, the preponderance of the evidence does not support a conclusion that she intentionally or deliberately avoided contact with the respondent employer. Moreover, the efforts at contact cited by the respondents did not involve efforts to contact the claimant about her return to work. In fact, Ms. Rogers candidly admits that the respondent employer did not make any effort to contact the claimant about returning to work after June 8, 1993. Therefore, any difficulties the respondent employer experienced in contacting the claimant cannot be cited as support for the conclusion that their decision to terminate her employment was based on her misconduct. Also, although the termination letter cites a rule of the respondent employer no evidence was presented pertaining to the content of this rule or of the claimant’s knowledge of the rule. Furthermore, contrary to the implication of the respondent employer, the availability of suitable employment in itself is not sufficient to give rise to the statutory bar; instead, the respondents must present evidence of employment or a bona fide offer of employment. Consequently, we find that the respondents failed to prove by a preponderance of the evidence that Ark. Code Ann. § 11-9-522 (b) bars an award for permanent partial disability compensation in excess of the permanent anatomical impairment established by the medical records. Thus, the administrative law judge’s decision in this regard is reversed. [20] In reaching this decision, we note that the Court’s decision in Barnette v. Allen Canning Co., 49 Ark. App. 61, 896 S.W.2d 444 (1995) is not applicable to the claim currently under consideration. In this regard, BarnetteTo constitute misconduct, however, the definitions require more than mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertencies, ordinary negligence in isolated instances, or good faith error in judgment or discretion. There must be an intentional or deliberate violation, a willful or wanton disregard, or carelessness or negligence of such degree or recurrence as to manifest wrongful intent or evil design.
involved the application of Ark. Code Ann. § 11-9-526
(1987), which disentitles a claimant to compensation if the claimant unjustifiably refuses an offer of employment, and the Court found that there was insufficient evidence of a continuing offer to find that the claimant was not entitled to receive additional temporary total disability compensation. Since the appropriate statute to apply is Ark. Code Ann. § 11-9-522 (b), not Ark. Code Ann. § 11-9-526,Barnette, supra, simply is not applicable. Nevertheless, even if we found that Ark. Code Ann. § 11-9-526 (1987) is applicable to this claim, which we do not find, there is no evidence of a continuing offer of employment, as required by the statute, at least from the point of the claimant’s termination onward. Therefore, even under the Barnette
decision, an award of compensation would not be barred. [21] Accordingly, based on our de novo review of the entire record, and for the reasons discussed herein, we find that the claimant failed to prove by a preponderance of the evidence that she is entitled to temporary total disability compensation beyond September 14, 1993, and we find that she failed to prove by a preponderance of the evidence that her proposed plan of rehabilitation is reasonable in light of her disability. However, we find that the claimant proved by a preponderance of the evidence that she is entitled to permanent partial disability compensation in an amount equal to 8% to the body as a whole, with 4% representing permanent physical impairment and 4% representing additional loss of earning capacity. Therefore, we find that the administrative law judge’s decision must be affirmed in part and reversed in part. [22] 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
(1987). For prevailing in part on this appeal before the Full Commission, 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 (b) (1987). [23] IT IS SO ORDERED.
JAMES W. DANIEL, Chairman PAT WEST HUMPHREY, Commissioner
[24] Commissioner Tatum dissents.[25] DISSENTING OPINION
[26] I concur in part and dissent in part with the majority’s opinion. I concur with the decision of the majority finding that claimant’s healing period ended at least by September 14, 1993. Therefore, I agree that claimant has failed to prove by a preponderance of the credible evidence that she is entitled to additional temporary total disability benefits. Additionally, I agree that claimant failed to prove by a preponderance of the credible evidence that her proposed rehabilitation program is reasonable in relation to her disability. However, in my opinion, a preponderance of the evidence does not support the majority’s determination that claimant is entitled to a permanent anatomical impairment rating or wage loss benefits. Thus, as stated, I concur in part and dissent in part.