CLAIM NO. E316665
EDWARD TORREY, EMPLOYEE, CLAIMANT v. CITY OF FORT SMITH, SELF-INSURED EMPLOYER, RESPONDENT Before the Arkansas Workers’ Compensation Commission
OPINION FILED OCTOBER 19, 1995
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE EDDIE H. WALKER, JR., Attorney at Law, Fort Smith, Arkansas.
Respondents represented by the HONORABLE ELDON COFFMAN, Attorney at Law, Fort Smith, Arkansas.
Decision of Administrative Law Judge: Reversed.
[1] OPINION AND ORDER
[2] The respondents appeal an opinion and order filed by the administrative law judge on December 28, 1994. In that opinion and order, the administrative law judge found that the claimant is entitled to the benefits provided for in Ark. Code Ann. § 11-9-505 (a) (Cumm. Supp. 1993) due to the respondent employer’s refusal to return the claimant to suitable employment. In addition, the administrative law judge found that the claimant is entitled to a change of physicians. After conducting a de novo review of the entire record, we find that the administrative law judge’s decision must be reversed.
[3] The claimant worked in the landfill for the sanitation department of the respondent employer. On October 10, 1993, he sustained an admittedly compensable injury to his back when he slipped, twisted, and fell while tarping a commercial container. He ultimately came under the care of Dr. Michael Standefer, a neurosurgeon, for this injury. Although diagnostic studies showed a right lateral disc herniation at L4-5 which was impinging upon the L4 nerve root or ganglion, Dr. Standefer treated the claimant conservatively. Dr. Standefer released the claimant from his care on March 1, 1994, with a 5% permanent impairment rating and physical restrictions against heavy lifting and repetitive bending. With regard to these physical restrictions, Dr. Standefer recommended no lifting in excess of 25-35 pounds, and, then only on an occasional basis. Based on these restrictions, the claimant and Dr. Standefer both concluded that the claimant could not return to his former job. In this regard, the claimant testified that he continues to experience problems which limit his activities. [4] Once he was released by Dr. Standefer, the claimant returned to the sanitation department to seek employment within his restrictions. However, there were no jobs in that department that were within his restrictions. Therefore, he was advised to apply for a dispatcher’s job that was open in the street department. The claimant did interview for this job, but he subsequently received a letter advising him that he did not get the job. He also interviewed for a dispatcher job with the police department. However, he testified that he advised the Chief of Police that he did not know whether he had been released to return to work at that time, and that job was also subsequently filled by someone else. Steve Abell, director of human resources for the respondent employer, testified that someone who was more qualified than the claimant was hired for both jobs. While Mr. Abell testified that the claimant met the minimum qualifications for these jobs, he also testified that the street department job required the use of a computer and data base interfacing, and the claimant did not have any prior experience using a computer. However, according to Mr. Abell’s testimony, the individual hired had previous computer experience. Mr. Abell also testified that the individual hired for the police dispatcher’s job had prior experience. The claimant is provided information about job openings with the City, but he testified that he has not seen another opening for a job he felt that he was physically capable of performing. Mr. Abell testified that the claimant was subject to being rehired if a job became available which is within the claimant’s physical limitations. In addition, Mr. Abell testified that he has looked for positions that might be suitable for the claimant, and he testified that he has discussed the claimant’s return to work with him. [5] The claimant contends that he is entitled to benefits under the provisions of Ark. Code Ann. §
11-9-505 (a) (Cumm. Supp. 1993). These provisions were added to the Arkansas Workers’ Compensation Law by Act 796 and provides the following:
(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, such employer 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 year.
(2) In determining the availability of employment, the continuance in business of the employer shall be considered, and any written rules promulgated by the employer with respect to seniority or the provisions of any collective bargaining agreement with respect to seniority shall control.
[6] Consequently, to be entitled to an award of benefits under this subsection, the claimant must establish by a preponderance of the evidence the following elements:
(1) that he sustained a compensable injury;
(2) that suitable employment which is within his physical and mental limitations is available with the employer;
(3) that the employer has refused to return the him to work;
(4) that the employer’s refusal to return him to work is without reasonable cause.
[7] See, Sharron Smith v. Gerber Products, Full Workers’ Compensation Commission, opinion filed Apr. 24, 1995 (Claim No.
E312569). The failure of the claimant to satisfy any of these elements defeats a claim for benefits under this section. [8] In response to the rising costs of workers’ compensation experienced during the last decade in this state, the Arkansas General Assembly enacted
Act 796 of 1993 for the stated goal of restructuring the Arkansas workers’ compensation system “to make it more cost effective.” As one means of achieving this goal, the General Assembly strongly emphasized that one of the primary goals of the workers’ compensation system is the return of injured workers to the work force. See, Ark. Code Ann. §
11-9-101 (b) (Cumm. Supp. 1993); Ark. Code Ann. §
11-9-505 (d) (Cumm. Supp. 1993); Ark. Code Ann. §
11-9-1001 (Cumm. Supp. 1993). In fact, with regard to the subsection currently under consideration, the General Assembly amended the law to include this express statement of purpose and intent:
The purpose and intent of this section is to place an emphasis on returning the injured worker to work, while still allowing and providing for vocation rehabilitation programs when determined appropriate by the commission.
[9] Ark. Code Ann. §
11-9-505 (d). Thus, Ark. Code Ann. §
11-9-505 (a) promotes this legislative purpose and intent by establishing a financial incentive for employers to return an injured worker to work at his original place of employment whenever suitable employment is available at that place. [10] However, as amended by Act 796, the provisions of the Arkansas Workers’ Compensation Law are now to be strictly construed. Ark. Code Ann. §
11-9-704 (c)(3) (Cumm. Supp. 1993). A strict construction “is construction of a statute or other instrument according to its letter, which recognizes nothing that is not expressed, takes nothing that is not expressed, takes the language used in its exact and technical meaning and admits no equitable considerations or implications.” Black’s Law Dictionary, sura at 283; seealso, Thomas v. State,
315 Ark. 79,
864 S.W.2d 835 (1993; (1993); Hice v. State,
268 Ark. 57,
593 S.W.2d 169 (1980);Arkansas State Highway Commission v. S.W. Bell,
206 Ark. 1099,
178 S.W.2d 1002 (1944) (McFaddin, J., dissenting). Furthermore, the General Assembly expressly admonished this Commission not to liberalize, broaden, or narrow the workers’ compensation statutes. Ark. Code Ann. §
11-9-1001 (Cumm. Supp. 1993). Thus, applying the strict construction doctrine and considering this legislative admonishment, we cannot read anything into the Act that is not clearly stated in its language. [11] In the present claim, the plain language of Ark. Code Ann. §
11-9-505 (a) requires the availability of suitable employment, and plain language of the statute provides that the entitlement to the payment of the benefits it provides lasts only “during the period of such refusal . . .” to return the injured worker to suitable employment which is available. Thus, whenever only one suitable employment position is available, the period of refusal can last only so long as the position remains unfilled. Once the 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. In this regard, we note that the claimant seems to suggest that the statute requires employers to create suitable employment within an injured employee’s physical limitations in order to avoid payment of the additional benefits. However, the statute does not impose such a requirement on employers. Instead, to avoid payment of the additional benefits, the statute merely requires employers to return injured workers to work if suitable employment within the employee’s physical limitations is available. See, Smith, supra. [12] In the present claim, the evidence indicates that either dispatcher job most likely would have been suitable for the claimant if he had been provided limited computer training. Moreover, the stated purposes of Act 796 would have been furthered if the respondent employer had given the claimant preferential consideration in the decision to fill these jobs. However, nothing in the language of the statute imposes a duty on employers to do so, and, once someone was hired for the dispatcher jobs, the jobs were no longer available. Moreover, the claimant testified that none of the other job openings listed with the respondent employer were suitable for his qualifications or for his physical limitations. Therefore, to avoid expanding the plain language of the statute, we find that the claimant failed to show that suitable employment with the respondent employer continued to be available which the respondent employer could refuse to offer him. Therefore, we find that the claimant failed to show by a preponderance of the evidence that he is entitled to benefits under Ark. Code Ann. §
11-9-505 (a). Thus, we find that the administrative law judge’s decision in this regard must be reversed. [13] We also find that the claimant failed to prove by a preponderance of the evidence that he is entitled to a change of physicians. Where the employer makes the initial selection of a physician, a claimant may petition the Commission once for a change of physician. Ark. Code Ann. §
11-9-514 (a)(2) (1987). The statute provides the following:
If the employer selects a physician, the claimant may petition the Commission one (1) time only for a change of physician and if the Commission approves the change, with or without a hearing, the Commission shall determine the second physician and shall not be bound by the recommendation of claimant or respondent. . . .
[14] However, a change of physician, even where the employer makes the initial selection, will not be automatically granted merely because the claimant requests the change. Even though a claimant is not required to establish a compelling reason or circumstance to justify a first change of physician if the employer makes the initial choice, the Commission must review each request to assure that the change is justified. The Legislature’s use of the phrase “. . . if the commission approves the change. . .” (emphasis added) clearly contemplates that the Commission will retain discretion to review petitions for physician changes on their merits and to approve or disapprove such changes. [15] In the present claim, the claimant seeks to change from Dr. Standefer to Dr. Richard Dodson. In support of this request, he testified that Dr. Dodson is his family physician and that Dr. Dodson does adjustments, which he feels might help him. However, the claimant has not provided any evidence pertaining to the nature of the adjustments or other treatment Dr. Dodson might provide, and he has not provided any evidence showing why he would benefit from a specialist to a general practitioner. Moreover, Dr. Standefer has indicated that he will continue to provide any needed care to the claimant, and the evidence indicates that Dr. Standefer’s care has been appropriate. Therefore, we find that the claimant failed to show that a change of physicians to Dr. Dodson is warranted. Therefore, we find that the administrative law judge’s decision in this regard must be reversed. [16] 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 he is entitled to benefits under Ark. Code Ann. §
11-9-505 (a) or that he is entitled to a change of physicians. Therefore, we find that the administrative law judge’s decision must be, and hereby is, reversed. This claim is denied and dismissed. [17] IT IS SO ORDERED.
JAMES W. DANIEL, Chairman ALLYN C. TATUM, Commissioner
[18] Commissioner Humphrey dissents.
[19] DISSENTING OPINION
[20] I must respectfully dissent from the opinion of the majority finding that claimant is not entitled to benefits pursuant to Ark. Code Ann. § 11-9-505 (a) (Supp. 1993).
[21] It is undisputed that there were two available job openings for which claimant was clearly a suitable candidate, both in terms of qualifications and the physical restrictions or limitations imposed by his physician. Another applicant was chosen for each position ostensively because of “better qualifications.” In essence, the employer refused, without reasonable cause, to allow claimant to return to work after his injury and thereby, thwarted the purpose and intent of this section to place an emphasis on return to work. [22] All the employer has to do to avoid liability under this section is quickly hire anyone remotely qualified for the position and effectively, get rid of a worker, who had the misfortune of sustaining a work-related injury. Taken to the extreme, employers merely have to replace injured workers before they are released to return to work. [23] For the forgoing reasons, I dissent. [24] PAT WEST HUMPHREY, Commissioner