CLAIM NO. F710978
Before the Arkansas Workers’ Compensation Commission
OPINION FILED JUNE 10, 2010
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the Honorable Conrad T. Odum, Attorney at Law, Fayetteville, Arkansas.
Respondent represented by the Honorable E. Diane Graham, Attorney at Law, Fort Smith, Arkansas.
Decision of Administrative Law Judge: Reversed.
OPINION AND ORDER
The claimant appeals an administrative law judge’s opinion filed October 26, 2009. The administrative law judge found that the claimant failed to prove he was entitled to additional temporary total disability benefits, and that the claimant failed to prove he was entitled to wage-loss disability. After reviewing the entire record de novo, the Full Commission reverses the administrative law judge’s opinion. The Full Commission finds that the claimant proved he was entitled to temporary total disability benefits from April 28, 2008 through August 6, 2008.
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We find that the claimant proved he was entitled to wage-loss disability in the amount of 5%.
I. HISTORY
Francisco Narvaiz, age 60, testified that he was born in Texas, attended school through the eighth grade, and lived most of his life in Idaho. Mr. Narvaiz testified that he could read and write and that he spoke English and Spanish. The claimant testified that he trained to be a welder and had worked in chemical and asbestos removal. The claimant worked in a sugar factory for 35 years. The claimant’s testimony indicated that he eventually became a supervisory employee at the sugar factory: “I have the knowledge to run the full plant with my own crew.” The claimant agreed on cross-examination that he retired from the sugar company on December 31, 2005.
The claimant testified that he began working for the respondent-employer on June 13, 2007. The claimant testified that he lifted and stacked 70-pound portions of chicken. The claimant earned $9.10 hourly. The parties stipulated that the claimant sustained a compensable injury to his left shoulder on August 22, 2007. The claimant received medical treatment for his compensable injury beginning August 28, 2007:
The patient presents as an employee of Tyson Foods at Chick `N Quick for the past 2½ months, and complains of an accident with occurred 08-22-07 at 11:20 a.m. He states he was lifting a box of chickens weighing 95 lbs when he heard a “loud noise” in his left shoulder. He has been to the ER, has had x-rays, was placed on hydrocodone and Norflex. He states the shoulder feels better with the medications. . . .
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He complains of tenderness to palpation primarily at the upper humeral region laterally, which is consistent with the insertion site of the rotator cuff musculature. His ROM is only minimally decreased, especially with placing his hand behind his back. . . .
I discussed the patient’s condition with him and the company nurse at length. This appears to be more of a strain of the rotator cuff musculature. . . .He may return to work, restricted to light duty use of the left upper extremity with no lifting of greater than 15 lbs and no work above chest height. . . .
The physician’s assessment was “1. Musculoskeletal strain, left shoulder.”
The claimant testified that he returned to restricted work on the “fry line,” watching chicken. The claimant agreed on cross-examination that work on the fry line was a light job which did not require lifting over 5 pounds and did not require overhead work.
Dr. R. Jacob Kaler saw the claimant on October 26, 2007:
57 year old gentleman who states that 2 months ago he was lifting a box of chicken that weighed almost 100 lbs. when he had immediate pain and a loud noise in his left shoulder. He has had weakness since as well as pain. . . .He has been placed on restricted duty and given non-steroids. No formal PT up to this point.
Dr. Kaler’s assessment was “Left shoulder pain probable rotator cuff strain. He is a couple of months in so I don’t mind going ahead and trying a corticosteroid injection. This was done today. . . .He is also going to go to formal
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PT. I will see him back in a month. We will keep him on 5 lb. lifting restriction. No overhead activity until I see him back.”
An MRI of the claimant’s left shoulder was taken on November 29, 2007, with the following impression:
1. Complete tear of the supraspinatus tendon with tendon retraction measuring approximately 3 cm. Moderate muscle atrophy.
2. Full thickness tear of the upper to mid fibers of the subscapularis tendon, also associated with moderate muscle atrophy.
The claimant testified that he was suspended from work on December 22, 2007. The claimant agreed on cross-examination that he was suspended “for calling a co-worker a really bad curse word name.” Frankie Henry, a Human Resources manager at Tyson, testified for the respondent:
Q. Tell us what happened.
A. December 20th of `07, the lead of the fry line where he was working came and made a complaint that [the claimant] had said something to her that she felt was inappropriate, so I had her write me a statement and she wrote me a statement. And I called Francisco in front of the assistant plant manager and asked him what was going on. . . .He admitted that he called the lead person a m*** f*** bitch.
Q. All right. What did you do?
A. I asked him if he said that. And he said, yes, he did. . . .
Q. Did you suspend him that day?
A. Yes, I did.
Q. Okay. Did he come back to work after the suspension?
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A. He did. Between the suspension, we had the holidays, which normally he would have received a three to five-day suspension, but we had Christmas and New Year’s, and so he reported back to work the first day that we returned after New Year’s, and that’s when he was terminated.
Q. What he admitted doing, what that a violation of Tyson’s policies?
A. Yes, ma’am, insubordination.
Q. Is that considered gross misconduct?
A. Yes, it is.
In any event, Dr. Kaler performed a left shoulder acromioplasty on January 31, 2008. The post-operative diagnosis was “1. Complete supraspinatus and partial infraspinatus tear. 2. Subscapularis tear. 3. Long head of the biceps instability.”
Dr. Kaler noted on March 7, 2008, “Mr. Narviz (sic) is following up on his left massive supraspinatus subscap tears and repairs with biceps tenodesis. He’s doing fairly well. He ran out of pain medicine a week ago and he’s not sure that he’d like to have just a little more. . . . ASSESSMENT AND PLAN: 7 weeks out from above. Work restriction now would be still one handed duty for a month. Then he would be 2 lb. lifting restriction, no overhead activities for one month. I’ll see him back in 6 weeks. He’ll continue his therapy and I sent him with a new prescription today.”
The claimant followed up with Dr. Kaler on April 28, 2008:
Mr. Narviz (sic) is in 3 months standpoint on his massive cuff tear with supraspinatus subscap and then biceps tenodesis. He says he’s making progress.
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He gets a catch in his shoulder occasionally. His therapy is coming along. He has soreness and some stiffness but overall fairly happy. . . .
I told him I’d just plan on seeing him back in 6 weeks and he and his wife were both very sad when I said that. I asked questions and they’re wanting to go back to Idaho. They basically feel like they’re being held here and I told them it would be okay but the main issue is that worker’s comp may want some additional follow-up on him if this is indeed a worker’s compensation issue as I believe it was. He needs to check with them first. I’ll give him a prescription to follow-up
with the therapy there but may require that he comes (sic) back for me to do it. All we’ll really need is an impairment rating but it’s probably going to be 6-9 months before he’d be declared MMI. I told him my preference would be, of course, just to hang around here and have those done but that’s a personal decision they’ll have to make with the implications that I’m not able to predict. From an activity standpoint, I told him he can do what he wants subjectively. I would officially put him at a 10 lb. lifting restriction. No overhead activity for a month and then increase that to 20 lbs. followed by 30 lbs. at 5 months and then no restrictions at 6 months if all just went perfect, but we are going to make a follow-up appointment with me in 6 weeks I told him just to have on the books.
The respondent paid temporary total disability benefits through approximately April 28, 2008.
The claimant followed up with Dr. Kaler on June 9, 2008: “Mr. Narviz is back saying his pain is better. He gets numbness primarily at night. Some weakness during the day where he has difficulty holding his coffee cup, he states. On the whole, he’s been continuing his exercises and says he’s doing well. . . .Mr. Narviz is now 4 months out from his massive cuff tear with supraspinatus, subscap and biceps tenodesis. I’m surprised how well he is doing at this time. He’s much farther ahead of schedule that I would have
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expected. In responding to Mary Fletcher’s questions, I think his prognosis for his shoulder overall is fair to good. With the type of injury sustained, I don’t think it could ever be excellent. My findings are above. His treatment plan includes no medications at this time. He’s going to continue home exercise program. I think this is more vital than formal therapy though it could be argued for formal therapy. His restrictions for the next 2 months do include no overhead activity and 5 lb. lifting restriction for one month followed by a 10 lb. restriction for the month thereafter. I will see him 2 months from now which will put him 6 months out from his injury at which point we will most likely have established as MMI. I do not anticipate a high impairment rating on this one.”
Dr. Kaler noted on August 6, 2008, “He doesn’t feel like there’s any way he can go back to work full duty now. . . .I think we could go ahead and declare him MMI based on his strength and activity though probably still make some subtle improvements. His work restriction would be 25 lbs. for 3 months and then no restrictions at all at that point. Follow-up with me will be on an as needed basis at this point as I discussed with him.”
The claimant testified that he did not attempt to return to work for the respondent-employer following his medical release.
On a form provided by Mary Fletcher, an RN for Tyson Foods, Dr. Kaler indicated on August 15, 2008 that the claimant had sustained a 2% whole-person impairment rating. Dr. Kaler informed Mary Fletcher on August 20, 2008,
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“In regard to Mr. Fransico Narviz, his impairment in regard to his left shoulder probably is a 4% upper extremity and a 2% whole person impairment rating.”
Frankie Henry testified for the respondent:
Q. Had Mr. Narvaiz not been terminated for gross misconduct, would Tyson have had a position available for him in the fry line within the restrictions — and I am going to show you these restrictions. Page 200 of the exhibit is Dr. Kaler’s report of August 28, 2008. It has down towards the bottom restrictions specifically he was placing on that date, a 10-pound restriction and no overhead activity for one month. Would Tyson have had work available for him as of
April 28, 2008, with that restriction?
A. Yes, ma’am, we would have.
Q. And, in fact, was the fry line job that he had held even lighter than that?
A. Yes, ma’am. . . .
Q. At all times since August of 2008, would Tyson have had work available for Mr. Narvaiz on the fry line had he not been terminated for cause?
A. Yes, ma’am.
A pre-hearing order was filed on May 15, 2009. The claimant contended, among other things, that he underwent rotator cuff surgery on January 3, 2008 and was paid temporary total disability benefits through March 2008. The claimant contended that he remained “unable to be substantially and gainfully employed and [is] in his healing period and is entitled to temporary total disability benefits.”
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The respondent’s contentions indicated that it accepted a 2% permanent impairment rating. The respondent contended, “Temporary total disability benefits were paid through April 28, 2008 at which time the treating physician released Claimant to return to work with certain restrictions. Tyson had previously provided work for Claimant following his injury when his limitations were even more restrictive than those placed by the physician on April 28. Had Claimant not been terminated on December 20, 2007 for misconduct, Tyson would have continued to make employment available within his restrictions. Tyson denies that it owes additional temporary total disability benefits to the Claimant. Further, Tyson denies Claimant is entitled to wage-loss disability as a result of the work-related injury. The reason he is not working for Tyson earning the same wages he earned at the time of the injury is because he was terminated for misconduct.”
A hearing was held on July 28, 2009. The claimant testified that he had returned to Idaho but was not employed. The claimant testified that he still felt pain in his shoulder and self-described his physical restrictions as “Like about 50 pounds, lift regular level. . . .I can’t lift nothing overhead, just regular levels.” The claimant testified that he had sought employment through “The government agency like the labor department, the job service, similar agencies, all over.”
An administrative law judge filed an opinion on October 26, 2009. The administrative law judge found
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that the claimant did not prove he was entitled to additional temporary total disability benefits. The administrative law judge found that the claimant did not prove he was entitled to wage-loss disability. The claimant appeals to the Full Commission.
II. ADJUDICATION
A. Temporary Disability
Temporary total disability is that period within the healing period in which the employee suffers a total incapacity to earn wages. Ark. State Hwy. Dept. v. Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981). The healing period is defined as that period for healing of the injury which continues until the employee is as far restored as the permanent character of the injury will permit Arkansas Highway and Transp. Dep’t v. McWilliams, 41 Ark. App. 1, 846 S.W.2d 670 (1993). The determination of when the healing period ends is a question of fact for the Commission Thurman v. Clarke Indus., Inc., 45 Ark. App. 87, 872 S.W.2d 418 (1994).
In the present matter, an administrative law judge found that the claimant failed to prove he was entitled to additional temporary total disability benefits. The Full Commission reverses this finding. The parties stipulated that the claimant sustained a compensable injury to his left shoulder on August 22, 2007. The claimant was treated and was assessed with a musculoskeletal strain of the left shoulder. The claimant returned to light work duty for the respondent-employer on or about August 28, 2007. An MRI on November 29, 2007 showed a complete tendon tear in the claimant’s left shoulder. The claimant testified that he was suspended from work on or about December 22, 2007 after the claimant
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verbally abused a co-worker. The claimant’s employment was terminated on or about January 1, 2008 because of the claimant’s insubordination.
However, the claimant underwent left-shoulder surgery on January 31, 2008, and the respondent contended at pre-hearing that it paid temporary total disability benefits through April 28, 2008. The respondent contends that the claimant was not totally incapacitated to earn wages after temporary disability payments were stopped in April 2008. The respondent contends that appropriate light work would have been available for the claimant had the claimant’s employment not been terminated for insubordination. The claimant cites Ark. Code Ann. § 11-9-526:
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.
The claimant contends that he did not refuse employment suitable to his capacity. A termination for misconduct is not a sufficient basis for a finding that an employee refused suitable employment See Superior Indus. v. Thomaston, 72 Ark. App. 7, 32 S.W.3d 52 (2000). Like the claimant in Superior Indus., the claimant did not refuse employment. The claimant accepted the employment offered him and was later terminated not by his choice, but at the option of the employer. See Superior Indus. at p. 11.
The instant claimant underwent compensable left-shoulder surgery on January 31, 2008. The record therefore shows that the claimant remained within
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a healing period and was totally incapacitated from earning wages no later than January 31, 2008. The respondent paid temporary total disability benefits through April 28, 2008, but Dr. Kaler reported on that date that the claimant had not reached maximum medical improvement. Dr. Kaler determined that the claimant reached maximum medical improvement as of August 6, 2008. The claimant proved that he remained within a healing period and was totally incapacitated from earning wages until August 6, 2008. The claimant therefore proved that he was entitled to additional temporary total disability benefits from April 28, 2008 through August 6, 2008.
B. Wage Loss
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 earning capacity. Ark. Code Ann. § 11-9-522(b)(1) (Repl. 2002).
An administrative law judge found that the instant claimant failed to prove he was entitled to wage-loss disability. The Full Commission does not affirm this finding. The claimant is age 60 with only an eighth grade education. The claimant’s work history consists of primarily unskilled manual labor, but the claimant also supervised employees during his 35-year tenure at a sugar company. The claimant was forced to retire from the sugar plant on December
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31, 2005. The claimant began working for the respondent-employer, performing manual labor, on June 13, 2007. The parties stipulated that the claimant sustained a compensable injury to his left shoulder on August 22, 2007. Dr. Kaler opined on June 9, 2008 that the claimant’s prognosis for recovery was good but “I don’t think it could ever be excellent.” Dr. Kaler pronounced maximum medical improvement on August 6, 2008. Although he stated that the claimant would have no physical restrictions after three months, Dr. Kaler subsequently assigned the claimant a 2% whole-person impairment rating.
The claimant testified that he still felt pain in his left shoulder and was limited in his physical abilities. The claimant testified that he had sought work with other employers. Based on the claimant’s age, limited education and work history, and based on the claimant’s post-injury anatomical impairment, the Full Commission finds that the claimant proved he sustained wage-loss disability in the amount of 5%.
Based on our de novo review of the entire record, the Full Commission reverses the administrative law judge’s findings. The Full Commission finds that the claimant proved he was entitled to additional wage-loss disability benefits from April 28, 2008 through August 6, 2008. We find that the claimant proved he was entitled to wage-loss disability in the amount of 5%. The claimant proved that the compensable injury was the major cause of his wage-loss disability. The claimant’s attorney is entitled to fees for legal services in accordance with Ark. Code Ann. § 11-9-715(Repl. 2002). For prevailing on appeal to the Full
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Commission, the claimant’s attorney is entitled to an additional fee of five hundred dollars ($500), pursuant to Ark. Code Ann. § 11-9-715(b) (Repl. 2002).
IT IS SO ORDERED.
A. WATSON BELL, Chairman
PHILIP A. HOOD, Commissioner
Commissioner McKinney dissents.
KAREN H. MCKINNEY, COMMISSIONER
DISSENTING OPINION
I must respectfully dissent from the majority opinion finding that the claimant is entitled to additional temporary total disability benefits and wage-loss disability. Based upon my de novo
review of the entire record, without giving the benefit of the doubt to either party, I find that the claimant’s gross misconduct which resulted in his termination is the equivalent of a refusal of employment. I further find that the claimant has not sustained any wage loss disability as he would have continued in his employment with respondents earning wages equal to or greater than his pre-injury wages but for his gross misconduct.
The claimant candidly admits that he used insulting and derogatory language concerning a female co-worker which was clearly a terminating offense
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pursuant to Tyson’s policies. The claimant makes no excuses for his conduct other than stating that he did not like being told what to do by a woman. Claimant’s insubordination is the only reason claimant was not returned to work in a light duty capacity. Workers’ compensation is not general liability, medical, or simple disability insurance. Workers’ compensation is directly related to disability and medical expenses from an injury that arose out of and in the course of employment. To allow this claimant to draw workers’ compensation benefits when he would have been working but for his own contemptible conduct flies in the face of everything for which workers’ compensation stands. Pursuant to A.C.A. § 11-9-1001, the purpose of the workers’ compensation laws is to pay benefits to all legitimately injured employees, and to return the workers to the work force. The claimant in the present claim sustained a legitimate injury and was returned to work in accordance with the direct purpose of the law. Claimant would have continued to work for Tysons drawing full wages but for his gross misconduct that resulted in his termination. By rewarding this claimant for his misconduct and allowing him to draw temporary total disability benefits, when his disability is not the result of his compensable injury, but his own gross misconduct, the majority has given the claimant more rights than other non-injured employees. Light duty work had been made available to the claimant in the past and the overwhelming evidence of record reveals that it would have been made available to the claimant after he was released to light duty following surgery. However, the claimant, by his own insolent conduct, caused his own
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period of disability. Clearly, the claimant’s gross misconduct is a patent refusal to work within the company’s policies and thus a plain and distinct refusal of employment within his restrictions. The claimant’s own actions which resulted in his termination for cause is an unjustifiable refusal of employment. The claimant refused employment by refusing to satisfactorily perform his job and violate company policy. In my opinion, this interpretation is clearly in accord with the purpose and intent of the workers’ compensation statute to pay legitimate claims and complies with strict construction since refusal to comply with company policy which results in termination is nothing more than a refusal of employment — period.
I respectfully disagree with the majority’s reliance onSuperior Industries v. Thomaston, 72 Ark. App. 7, 32 S.W.3d 52 (2000). In my opinion, unlike the facts inThomaston where the court held that Thomaston was not terminated by his choice, but at the option of his employer, I find that the claimant in the present case was terminated by his choice — his choice of insubordination — his choice of blatant violation of company policy — his choice to viciously impugn a female co-worker — his choice to engage in terminable conduct — leaving Tyson with no option or choice but to terminate the claimant once it completed its investigation into the claimant’s actions. To the extent that the majority and or the courts read Superior Industries v.Thomaston, 72 Ark. App. 7, 32 S.W.3d 52 (2000) to create a blanket immunity for claimants who would otherwise be drawing meaningful wages while still within their healing period to engage in
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terminable offenses and thus draw workers’ compensation benefits, I humbly disagree. I cannot read any part of the Workers’ Compensation statute to allow such conduct or award. My interpretation of the Workers’ Compensation statute is more in line with the Court of Appeals in the more recent opinion of Roark v. PocahontasNursing Rehabilitation, 95 Ark. App. 176, 235 S.W.3d 527 (2006) wherein the Court upholded a denial of temporary total disability benefits. In Roark, the Court stated:
Roark’s last argument is that, alternatively, she is entitled to temporary-total disability benefits because the employer failed to provide her with light-duty work. However, we hold that this argument fails for the same reasons that her section 11-9-505(a)(1) argument fails. But for her own actions, Roark would have been provided continuing light-duty work. However, she violated a provision of the attendance policy that provided for immediate termination upon the first offense, and the employer terminated her for that reason. Roark cites no authority for the proposition that an employer is required to provide light-duty work for an injured employee who has violated a rule or policy of the employer that provides for immediate termination.
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The claimant in Roark did not cite Superior Industries v.Thomaston, supra, nor did the Court rely upon its precedent for the proposition now espoused by the majority. Accordingly, I cannot find that Superior Industries v. Thomaston stands for the proposition that an employer is required to provide light duty work to an injured worker who has violated a rule or policy of the employer that resulted in the employee’s termination. Whether A.C.A. § 11-9-526 is controlling, or whether precedent set inRoark v. Pocohontas Nursing Rehabilitation is contolling, the claimant created his own disability by placing himself in a situation to be terminated and he is therefore not entitled to temporary total disability benefits when he would otherwise be working light-duty and drawing wages.
Accordingly, for all the reasons set forth herein, I must dissent from the majority’s award of benefits.
KAREN H. MCKINNEY, COMMISSIONER
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