CLAIM NO. E507897
Before the Arkansas Workers’ Compensation Commission
OPINION FILED NOVEMBER 10, 1997
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by RICHARD CASTLEMAN, Attorney at Law, Pocahontas, Arkansas.
Respondent represented by RICHARD LUSBY, Attorney at Law, Jonesboro, Arkansas.
Decision of Administrative Law Judge: Reversed in part and affirmed in part.
[1] OPINION AND ORDER
[2] Respondent appeals and claimant cross-appeals from a decision of the Administrative Law Judge filed March 3, 1997. We reverse in part and affirm in part the decision of the Administrative Law Judge. Specifically, we reverse the finding that claimant is entitled to additional benefits as provided in Ark. Code Ann. §11-9-505(a)(1). However, we affirm the finding that claimant has failed to prove entitlement to vocational rehabilitation benefits pursuant to Ark. Code Ann. § 11-9-505(b). Based upon our de novo
review of the entire record, we find that claimant has failed to prove by a preponderance of the evidence entitlement to either benefits.
(1) That she sustained a compensable injury;
(2) That suitable employment within the claimant’s physical and mental limitations was available with the employer;
(3) That the employer refused to return the claimant to work;
[5] See Edward Torrey v. City of Fort Smith, 55 Ark. App. 226, 934 S.W.2d 237 (1996). [6] In Torrey, supra, the Court stated:(4) That the employer’s refusal to return the claimant to work was without reasonable cause.
[7] The record reflects that claimant was initially released to return to regular duty work by her treating physician, Dr. Larry Mahon on July 17, 1995. Claimant worked on regular duty for approximately a month before returning to Dr. Mahon’s office with complaints of continued problems with her knee. Based upon claimant’s complaints of continued problems, Dr. Mahon placed permanent restrictions upon claimant. Of these restrictions, the only one which applied to claimant’s work was the restriction against any “prolonged standing.” [8] It is claimant’s testimony that there were several employees with less seniority than claimant who were allowed to “bust out” and take other jobs within the plant when the work slow down happened and the mandatory lay off occurred. Claimant relies heavily upon the fact that an employee from another department with less seniority than claimant who also had a lower extremity injury was allowed to work while she was mandatorily laid off. Claimant also pointed to the fact that several other employees with less seniority than claimant were able to work in other departments when her department, Department II, was subject to the mandatory lay off. However, it is noted that claimant conceded that she had no knowledge of whether these other employees worked at a position which required prolonged standing. [9] First, with regard to the regular employees with less seniority who were allowed to work while claimant was on layoff, there is no evidence that claimant could have performed the jobs which these employees performed given claimant’s permanent restriction of no “prolonged standing.” While claimant tried to testify that the employees could rest or take breaks, claimant did acknowledge that if their positions were standing job positions, the position would not fall within her work restrictions. [10] Claimant offered no credible evidence that she could in fact, work in the same positions as these other employees. In fact, the evidence indicates that the only jobs which fell within her permanent restrictions were available in Department II, which was the department subject to the layoff. Secondly, with regard to the employee who had previously suffered a lower extremity injury who was allowed to return to work while claimant was on mandatory layoff, we cannot find that respondent’s treatment of these two individuals in a different manner amounts to refusal to return claimant to work without reasonable cause. Pam Still, the human resource supervisor for respondent testified that Lela Dollins was allowed to work even though she had less seniority than claimant when claimant was on layoff. When explaining why Lela Dollins was treated differently, Mrs. Still stated: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-entry into the work force by offering additional training to the employee, if needed and re-classification of positions, if necessary. . . .
[11] Mrs. Still testified that Lela Dollins was working on alternative light-duty while she was in her healing period in a position that was created to help facilitate Ms. Dollins’ return to work. Mrs. Still was specifically asked regarding Ms. Dollins’ alternative work “this light-duty or alternative work that we’re talking about for people with temporary restrictions, those are not regular jobs in the plant, are they?” To which she responded “they are not.” Mrs. Still explained that the company works with its employees with regard to their restrictions in different manners depending on whether the restrictions are temporary or permanent. If the restrictions are temporary, light-duty is created to facilitate that employees return to the work-force during that person’s healing period even if the job is not a productive job for the plant. However, once the employee has reached the end of their healing period, the company will find a regular full duty job within the plant within the employee’s physical restrictions that the employee can perform on a regular, day to day basis just as all other employees do. [12] After reviewing the evidence of record, we cannot find that claimant has proven by a preponderance of the evidence that there were jobs available within her permanent restriction of no prolonged standing which she would perform during the time when claimant was placed on mandatory layoff. In Maria Jacobo v.Simmons Industries, FC Opinion August 19, 1997 (E410386) we stated:Because the permanent people, we try to find a job that they are going to be able to work 8 hours a day, 40 hours a week, and even work on Saturdays, where a person that’s on alternative duty for a short period of time, we try to find work for them, but there is on occasion where that person, there may just be a couple of hours work, and they have to go home, and then there may be, and then we do not allow them to work anything over 8 hours a day and no work on Saturdays. So, you know, as far as Pam or any person that has permanent restrictions, they would be, we would find work for them that they could do 40 hours a week.
[13] The reasoning and rationale we applied in Jacobo is applicable to the present claim. Claimant seems to suggest that respondent is obligated to create a permanent position for claimant in an otherwise non-existent job classification merely because respondent creates such light-duty work for injured employees who are in their healing period and attempting to re-enter the work force. Section 505(a) does not require an employer to create a permanent position for a claimant merely because a claimant wants to continue working. If there are no jobs available within the permanent restrictions, respondent is not obligated to create a permanent light-duty position merely because it creates temporary light-duty positions for injured employees who are under temporary restrictions. There is a clear and distinct difference between temporary and permanent restrictions. A respondent should not be punished with § 505(a) liability, when the respondent makes every effort to work with employees with temporary restrictions in an effort to facilitate re-entry into the work force. [14] Accordingly, for those reasons set forth above, we cannot find that claimant has proven the four elements she must prove in order to be entitled to additional benefits pursuant to Ark. Code Ann. § 11-9-505(a). Therefore, we reverse the decision of the Administrative Law Judge with regard to this issue. [15] With regard to claimant’s claim for vocational rehabilitation benefits pursuant to Ark. Code Ann. § 11-9-505(b)(1), we cannot find that claimant has proven entitlement to such benefits. This provision allows a claimant vocational rehabilitation benefits when a claimant is entitled to permanent disability and when the claimant has not been offered an opportunity to return to work or to re-employment assistance. Clearly, in this case claimant has been offered an opportunity to return to work. In fact, claimant returned to work in July of 1995 and continued to work for respondent until she was subject to a mandatory layoff in the spring of 1996. The mere fact that claimant was subject to a layoff does not mean that claimant was not given an opportunity to return to work. Ark. Code Ann. § 11-9-505(b) is clear and unequivocal. If the claimant has been returned to work or offered the opportunity to return to work making the same wages as prior to the injury, a claimant is not entitled to vocational rehabilitation benefits. Accordingly, we cannot find that claimant has proven entitlement to such benefits. Therefore, we affirm this finding of the Administrative Law Judge. [16] For these reasons stated herein, we affirm the decision of the Administrative Law Judge in part and reverse in part. [17] IT IS SO ORDERED.In reaching our decision, we note that respondent did create a light-duty, one arm job for the claimant (picking chickens up off the floor) on two occasions to find something for the claimant to do. To the extent that the claimant asserts on appeal that respondent should be liable for not returning her to the job of picking chickens up off the floor when she requested to return to that work, we do not understand the provisions of § 505(a) as interpreted by the Court in Torrey, supra, as placing the liability on the respondent that claimant suggests. While the Court indicated an employer’s potential duty to re-classify a position for the injured employee’s benefit, the Court in Torrey 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 as the claimant somewhat suggests.
ELDON F. COFFMAN, Chairman MIKE WILSON, Commissioner
[18] Commissioner Humphrey dissents.