CLAIM NO. F303178
Before the Arkansas Workers’ Compensation Commission
OPINION FILED JANUARY 4, 2005
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by HONORABLE GEORGE BAILEY, Attorney at Law, Little Rock, Arkansas.
Respondent represented by HONORABLE ERIC NEWKIRK, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed in part, reversed in part.
OPINION AND ORDER
This case comes on for review by the Full Commission on appeal by the respondents from a decision filed herein by an Administrative Law Judge on January 23, 2004. The Administrative Law Judge found, in relevant part, that the claimant was totally temporarily disabled for the periods beginning March 19, 2003, through May 4, 2003, and May 8, 2003, continuing through the end of her healing period, which is a date yet to be determined, due to injuries she sustained from an admittedly compensable work related accident on March 18, 2003. The Administrative Law Judge awarded the claimant temporary total disability benefits consistent with his findings, including the difference between the claimant’s appropriate compensation benefits rate and the rate actually paid by the respondent for temporary total disability. In addition, the respondent was ordered to pay medical mileage reimbursement, and all reasonable medical expenses arising out of the claimant’s compensable injury. The Administrative Law Judge did not find in favor of the claimant, however, concerning her entitlement to benefits pursuant to Ark. Code Ann. § 11-9-505(a).
A carefully conducted de novo review of this claim in its entirety reveals that the claimant has failed to prove by a preponderance of the evidence that she is entitled to temporary total disability benefits for the period beginning May 8, 2003, and continuing through her healing period, which is a date yet to be determined. Specifically, the claimant is barred by Ark. Code Ann. § 11-9-526 from receiving said benefits. All other findings should be affirmed. Therefore, the decision of the Administrative Law Judge is hereby affirmed in part and reversed in part.
The claimant sustained an admittedly compensable injury on March 18, 2003, in the form of chemical burns to her eyes, nose, and neck. It is undisputed that the claimant has, and continues to receive all reasonably necessary and appropriate medical treatment for her compensable injuries. Although she has recovered from the majority of her injuries, the claimant continues to experience problems with her left eye due to corneal scarring.
In addition to her medical treatment, the claimant received temporary total disability benefits until such time as she was released to return to restricted duty. Upon the claimant’s actual return to work on May 5, 2003, her restricted duty requirements were fully accommodated by the respondent employer. Furthermore, in an effort to ensure that the claimant was not at risk of being re-injured, the respondent employer clearly communicated the claimant’s work restrictions to all appropriate parties. The claimant worked under these restrictions for three and a half days, after which time she failed to return to work. The respondent employer made several attempts to contact the claimant concerning her work status, including written notice of her impending termination effective June 23, 2003. The claimant failed to respond to these attempts and her employment was ultimately terminated.
After her injury, the claimant initially came under the care of eye specialist, Dr. Joe Rowland. On April 11, 2003, Dr. Rowland released the claimant to work with restrictions. On April 15, the claimant met with plant officials, including Health Services Nurse, Linda Long, to discuss her return to work, certain transportation issues, and her work restrictions. At that time, the respondent employer offered viable accommodations for all of the claimant’s relative issues and restrictions.
On April 18, 2003, Dr. Rowland signed off on the claimant’s proposed job description, and the claimant was then notified by letter that she needed to report to work on April 28, 2003. The claimant contacted Dr. Rowland on April 23, 2003, expressing dissatisfaction with her light duty status, and stating that she wanted to wait to return to work until after her appointment with a company doctor scheduled for later in April. Dr. Rowland agreed with the claimant’s request, and he contacted Ms. Long concerning the same. On April 30, 2003, the claimant was seen by eye specialist, Dr. Cathleen Schanzer. Subsequently, Dr. Schanzer released the claimant to return to work on May 1, 2003, with the following restrictions:
OK to work as long as it is a clean environment — need to be careful not to get anything in eyes need to use [eye drops] every 1-2 hours.
Dr. Rowland concurrently released the claimant to return to work on May 2, 2003, with restrictions similar to those imposed by Dr. Schanzer: namely, to work in a clean environment, avoid getting anything in her eyes, use eye drops as directed, and wear “eye shields.” Ms. Long notified the claimant by letter dated April 30, 2003, that she was released to return to restricted duty and that a job was available which met the claimant’s restrictions. Furthermore, the claimant was advised that everyday she missed work constituted an “occurrence.”[1]
On the morning of May 5, 2003, the claimant met in consultation with Ms. Long, her supervisor, and the plant manager concerning her work restrictions. The claimant had been reassigned to the sanitation department and her new duties included picking up paper from the floor of the cafeteria and restrooms, keeping the restrooms stocked with paper products, and wiping off dining tables. Although originally thought to contain bleach, evidence reveals that the solution used to wipe off the dining tables consisted only of water and lemon dish washing detergent.
The claimant worked from May 5th through the morning of May 8th, at which time she reported to Ms. Long that her left eye was hurting, that she was going home, and that she intended to call her doctor. Ms. Long advised the claimant at that time to keep her informed of her condition. The record indicates that the claimant made daily contact with Ms. Long virtually everyday from that point forward until May 21, 2003, at which time Ms. Long sent a letter to the claimant reiterating her light duty restrictions and advising her that further accommodations could be made upon the claimant’s request. In response to this letter, the claimant telephoned Ms. Long on May 23, 2003, in order to inform her that she did not intend to return to work until her vision problems had completely resolved. Thereafter, the respondent employer exercised leniency in regards to the claimant’s employment status despite the claimant’s failure to maintain contact with the respondent employer as required by company policy.
Finally, in a letter dated June 16, 2003, the claimant was advised that her employment with the respondent employer would be terminated if she did not return to work by June 23, 2003. The claimant did not reply to this letter, nor did she attempt to contact the respondent employer in any way thereafter. Therefore, the claimant’s employment with the respondent employer was terminated in June of 2003.
The claimant’s eye injury is a scheduled injury, which is governed by Ark. Code Ann. Ann. § 11-9-521(a). The Court of Appeals has interpreted this statute to mean that when an employee has suffered a scheduled injury, temporary total disability benefits are only appropriate when the claimant is still within her healing period and while she has not returned to work. Wheeler Constr. Co. v. Armstrong, 73 Ark. App. 146, 41 S.W.3d 822 (2001). However, Arkansas Code Annotated § 11-9-526
provides that if an injured employee refuses offered employment suitable to her capacity, she shall not be entitled to any compensation during the continuance of the refusal, unless the refusal is justified. See International Paper Co. v. McGoogan, 255 Ark. 1025, 504 S.W.2d 739
(1974). The Administrative Law Judge opined that because the claimant continues within her healing period, she is still entitled to temporary total disability benefits. The Administrative Law Judge further opined that the claimant was justified in refusing offered employment by the respondent employer because she held a legitimate concern regarding her injured eye. Regardless of the claimant’s concerns, however, two eye specialists released the claimant to work under what they believed to be adequate restrictions to protect the claimant’s eye from further injury and allow it to heal properly. Furthermore, the record reveals that the respondent employer made every attempt to accommodate the claimant’s restrictions and to return her to suitable employment. For example, the detailed notes contained in Ms. Long’s logue reflect that the respondent employer made every concerted effort to keep the claimant apprized of all issues regarding her restrictions and her return to work. In an entry dated April 15, 2003, Ms. Long wrote:
I talked with Betty [the claimant] and assured her that I would meet the restrictions that the doctor had given and we would protect her eye from any irritation. I also explained what the job was and described all the duties that she would be doing. . . .
Regarding concerns about transportation, Ms. Long responded:
I explained to her that we would be very [lenient] with her start time. That we [were] aware of her concerns and that we would adjust as we needed to.
Finally, Ms. Long’s testimony reinforces the fact that the respondent employer exercised due diligence in trying to accommodate the claimant’s disabilities. For example, regarding their meeting of April 15th, Ms. Long stated:
And Betty and Mary [claimant’s roommate] were — pretty much talked about, you know, her fears about coming back to work. And I assured her that we would take every precaution to take care of her, that I did not want her re-injured and that my goal was to get her well and get her back to work.
In further testimony, Ms. Long stated:
We talked on that day for an hour about her being scared and her returning to work and about her fears. And I told her that I would make sure that she was protected. And if there was anything she felt like she couldn’t do for her to come to me and we would talk about it, modify it, whatever we needed to do.
The evidence indicates that the claimant’s roommate, Mary, often acted as her intermediary concerning work and medical related matters. Moreover, the record reveals that the claimant and her roommate were often uncooperative, and sometimes hostile, towards individuals such as Ms. Long who attempted to communicate with them about the claimant’s job and medical treatment. For example, Ms. Long’s well kept documentation of conversations that she had with the claimant and/or her roommate reveal that Ms. Long endured such things as being told she could not speak to the claimant, being cursed, and being hung up on.
The claimant testified during her hearing of January 23, 2004, whereas, the claimant’s roommate did not. The claimant’s testimony contradicted other evidence regarding, among other things, communications concerning her restricted duties. For example, the claimant testified that she was first informed of her duties in the sanitation department by lead person, Ms. Geraldine Sain, on the morning that she arrived to work. Concerning this, the claimant testified as follows:
Q. Now did Ms. Long describe your duties and what care you were supposed to take in regard to your medical restrictions?
THE WITNESS: That morning?
Q. (By Mr. Bailey) That morning or any other time?
A. Not that I can remember. No, sir.
Q. Okay. Did anybody tell you what care you were supposed to take in regard to your medical restrictions?
A. No, sir.
As described above, on the morning of May 5, 2003, the claimant consulted with plant officials regarding her restrictions and modified duties. Furthermore, the record clearly reflects that the claimant received information concerning her restrictions and her modified job duties from several different sources on various other occasions. In addition, the claimant asserts that the chemicals she used to clean, such as comet, and dust from sweeping and mopping outside irritated her eye condition, and that she was never given the opportunity to tell anyone at the plant. The claimant also stated that her lead person and immediate supervisor, Ms. Geraldine Sain, knew nothing of her medical restrictions when she returned to work on May 5, 2003. In contradiction to the claimant’s testimony, Ms. Sain testified that she had been advised by Ms. Long about the claimant’s restrictions prior to her having reported to work in the sanitation department. Ms. Sain also testified that the claimant volunteered to clean the toilet bowls with comet, but that this was not part of her job description. Furthermore, Ms. Sain stated that if the claimant swept and mopped outside, it was in order to stay busy. The claimant, however, had not been expected or instructed to sweep or mop, and Ms. Sain never witnessed the claimant sweeping or mopping. Finally, Ms. Sain testified that bleach was not used to clean the kitchen area, and that the claimant would not have been exposed to bleach or its fumes in the area to which she was assigned. The testimony of Ms. Sain’s supervisor, Mr. Andy Dennis, corroborated that of Ms. Sain. Moreover, Mr. Dennis testified that he had held Ms. Sain personally responsible for the claimant’s well-being while working under his supervision. When asked whether it was possible that Ms. Sain might have given the claimant responsibilities beyond her limitations, Mr. Dennis responded as follows:
No. Because I put Geraldine’s [Ms. Sain] job on the line. I said, if I catch her [the claimant] doing something besides what I told her to do with them tables, I was going to get her. Because it was under restrictions. She had paperwork from the doctors and everything what her restrictions was.
The claimant insisted that rather than being given a choice between tinted safety glasses or goggles, she was issued a pair of tinted glasses and told to wear them. These glasses, she testified, did not adequately protect her eyes. Mr. Dennis, however, testified that the claimant was given the choice, and that she chose the tinted safety glasses, which were much like the personal glasses she had worn to work. Furthermore, the record shows that the claimant was repeatedly invited to discuss modifications or changes with the appropriate personnel at any time, and that she opted not to do so. Finally, although the claimant admitted that she smokes approximately a half pack of cigarettes per day, she denies that the cigarette smoke, which is a known irritant, hurts her eyes.
It is the function of the Commission to determine the credibility of the witnesses and the weight to be given their testimony. Johnson v. Riceland Foods, 47 Ark. App. 71, 884 S.W.2d 626 (1994); See also Morelock v. Kearney Co., 48 Ark. App. 227, 894 S.W.2d 603 (1995). Furthermore, the Commission is not required to believe the testimony of the claimant or other witnesses, but may accept and translate into findings of fact only those portions of the testimony it deems worthy of belief. Id. The weight of the credible evidence, including witness testimony, reveals the claimant’s testimony to be inconsistent, self-serving, and unreliable. Therefore, the claimant’s testimony should be given little weight as compared to the other evidence presented in this claim.
The claimant eventually came under the care of eye specialist, Dr. Monika Malecha. In a response letter written by Dr. Malecha to the claimant’s attorney dated October 6, 2003, Dr. Malecha made the following statements:
Based upon the documentation you provided, I believe that appropriate accommodations were made at the workplace with the exception of having to use bleach to sanitize the work areas. Our opinion was that she should not be working with any chemicals on the job.
Dr. Malecha was obviously under the mistaken belief at the time she wrote this opinion that the claimant was required to use bleach to wipe off tables. As previously mentioned, the credible evidence shows that the claimant did not use bleach nor was she exposed to bleach or its fumes during her modified work shift. Furthermore, the claimant was not requested or required to use any chemicals when cleaning, and if she did so, it was by her own choice.
The weight of the credible evidence in this claim overwhelmingly supports the conclusion that the claimant was offered suitable employment by the respondent employer which she consistently refused. Moreover, the weight of the credible evidence presented herein reflects that the claimant’s refusal of suitable employment was completely unjustified.
As previously stated, Ark. Code Ann. § 11-9-526 provides in pertinent part:
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.
An offer of suitable employment is a condition precedent to applying Ark. Code Ann. § 11-9-526. Webb v. Webb, Workers’ Compensation Commission E906144 (June 29, 2000). Work must be available within the employee’s physical restrictions. McCuller v. Democrat Printing Lithographic Co., Workers’ Compensation Commission E608050 (April 28, 1998). Moreover, the claimant must unjustifiably refuse employment which is suitable to her capacity. Barnette v. Allen Canning Company, 49 Ark. App. 61, 896 S.W.2d 444 (1995).
Our review of the instant record reveals that the claimant refused employment which was suitable to her physical capacity. The claimant was released to return to work with restrictions which were set and/or approved by two eye specialists. The appropriate accommodations were made to allow the claimant to return to work within these restrictions. After working only three days the claimant left work stating that she was afraid her eye would become re-injured and she refused to return to work. When the credible evidence is reviewed, we find that the claimant has failed to prove by a preponderance of the evidence that the offered employment was not within her physical capacity. There is no credible evidence before us showing that the claimant could not work in the job she was offered and assigned upon her release to return to work. I Fluitt v. Arlington Hotel, Full Commission opinion filed April 1, 2003 (F011961), we stated:
. . . we recognize that an employee with a scheduled injury is entitled to temporary total disability compensation during the time that she remains within her healing period and has not returned to work, pursuant to Ark. Code Ann. § 11-9-521(a). Nevertheless, a loss in earnings on account of a scheduled injury in only presumed under Ark. Code Ann. § 11-9-521(a). See, Minnesota Mining Manufacturing v. Baker, 337 Ark. 94, 989 S.W.2d 151
(1999). A primary purpose of Arkansas workers’ compensation law is to pay timely temporary disability benefits to a legitimately injured worker, and to return that worker to the work force. Ark. Code Ann. § 11-9-101(b). It would be “ludicrous” to presume that the legislature meant to deter a worker from making a good-faith effort to return to the work force following an injury. See, Farmers Coop. v. Biles, 77 Ark. App. 1, 69 S.W.3d 899 (2002). Ark. Code Ann. § 11-9-526 provides that any injured employee who refuses suitable employment shall not be entitled to compensation during the continuance of the refusal. Under the scenario envisioned by the dissent, an employee with a scheduled injury that had been offered employment suitable to her physical capacity could simply refuse such employment indefinitely, extending her receipt of temporary disability ad infinitum. The Commission is confident that the legislature did not envision or sanction such a result in our law.
Accordingly, this commission has previously found that the provisions of Ark. Code Ann. § 11-9-526 apply to any injured employee who refuses employment suitable to her capacity. This application extends to the instant matter. The claimant in the present claim refused suitable work within her physical capacity. Therefore, we find that decision of the Administrative Law Judge awarding of temporary total disability from May 8, 2003, and continuing through a date yet to be determined must be reversed.
Therefore, and for all the reasons set forth above, we find decision of the Administrative Law Judge must be affirmed in part, and reversed in part. The award of temporary total disability from March 19, 2003, through May 4, 2003, and payment of reasonable and necessary medical treatment which was previously accepted and paid by respondents is hereby affirmed. Likewise, the denial of benefits pursuant to Ark. Code Ann. §11-9-505(a) was not cross-appealed and is hereby affirmed. However, the award of temporary total disability subsequent to May 8, 2003, is reversed, and hereby denied and dismissed.
IT IS SO ORDERED.
___________________________________ OLAN W. REEVES, Chairman
___________________________________ KAREN H. McKINNEY, Commissioner
Commissioner Turner dissents.
DISSENTING OPINION
SHELBY W. TURNER, Commissioner.
I must respectfully dissent from the opinion of the majority finding that claimant is not entitled to any compensation because she unjustifiably refused employment suitable to her capacity pursuant to Ark. Code Ann. § 11-9-526 (Repl. 2002).
The Administrative Law Judge, who heard the live testimony and observed the demeanor of the witnesses, found claimant to be a most credible witness. The self-serving testimony of the witnesses for respondent is not entirely credible and certainly not worthy of the verity accorded it by the Commission.
Claimant sustained an admittedly compensable injury in the form of chemical burns to her eyes. While recovering from this injury, claimant was to avoid getting any substances in the eyes, particularly the left eye. Respondent’s magnanimous offer of employment was in the sanitation department. Claimant was assigned to clean the cafeteria and the bathrooms. It is virtually impossible to perform these job duties without getting some irritants in the eyes. Despite this obvious predicament, claimant made a good faith effort to perform the assigned job for several days, but her left eye irritation worsened. Claimant finally refused to perform the job until her left eye had time to heal. In my opinion, claimant was justified in refusing to continue to perform the assigned job.
I must point out that claimant’s treating physician released her to perform work in a “clean environment.” However, respondent actually ordered claimant to clean the environment! It is no wonder that claimant’s condition deteriorated and she refused to continue performing the work out of fear of losing her sight.
For the foregoing reasons, I must respectfully dissent. The opinion of the Administrative Law Judge should be affirmed in its entirety.
_________________________________ SHELBY W. TURNER, Commissioner