Opinion
CLAIM NO. E302435
OPINION FILED AUGUST 18, 1995
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE LAURA McKINNON, Attorney at Law, Fayetteville, Arkansas.
Respondents represented by the HONORABLE ANGELA DOSS, Attorney at Law, Fayetteville, Arkansas.
Decision of Administrative Law Judge: Affirmed.
OPINION AND ORDER
The claimant appeals an opinion and order filed by the administrative law judge on March 6, 1995. In that opinion and order, the administrative law judge found that the claimant failed to prove by a preponderance of the evidence that he is entitled to permanent partial disability compensation in excess of his permanent physical impairment rating. In addition, the administrative law judge found that the respondents did not controvert the difference between temporary total disability compensation paid at the rate of $173.33 and the correct rate of $197.45. After conducting a de novo review of the entire record, we find that the administrative law judge's decision must be affirmed.
The claimant began working for the respondent employer in May of 1992, and he ultimately was employed as a machine operator. He sustained an admittedly compensable injury on September 19, 1992, when he attempted to lift a trash can while he was standing straight. He was treated at the emergency room for the injury, and the emergency room report indicates that he was complaining of low back pain. However, he testified that he pulled a muscle underneath his shoulder blade in his mid to upper back. Although he was advised to restrict his activities, he returned to work the following day. After this injury, he was moved from the machine operator position to a position as a general laborer with lighter duties.
The claimant also testified that he sustained an injury on approximately January 27, 1993, which resulted in a ruptured disc. He was again working as a machine operator, and he was lifting a steel shaft weighing approximately 145 pounds without assistance. Although the respondents have accepted the compensability of the claimant's back condition, it is interesting to note that the claimant actually sought treatment at the emergency room on January 23, 1993, for complaints of low back pain which began the following evening, and the emergency room report indicates that he denied sustaining any injury. A CT scan ordered by the emergency room physician, Dr. Jon Krannichfeld, which was performed on January 25, 1993, revealed a small disc herniation at L4-5 "with some caudal migration of a disc fragment." Based on these findings, the claimant was referred to Dr. Luke Knox, a neurosurgeon. Dr. Knox's records indicate that he first saw the claimant on January 27, 1993, and that the claimant advised him that he had experienced a gradual onset of back pain for two months, which the claimant related to heavy lifting at work. Dr. Knox's records contain no reference to the incident which the claimant contends occurred when he was lifting the steel shaft.
In any event, Dr. Knox performed a hemilaminotomy and discectomy at L4-5 on February 4, 1993. After being off approximately six weeks to recover, Dr. Knox released him to light duty, with restrictions against lifting over twenty (20) pounds and against repetitive bending and stooping. The respondent employer made work available within these limitations, and the claimant returned to work. However, on August 7, 1993, his employment was terminated due to excessive absenteeism.
Dr. Knox ultimately assigned a 10% permanent impairment rating, and the respondents have accepted this rating. However, the respondents contend that an award of permanent disability compensation in excess of this permanent physical impairment is barred by Ark. Code Ann. § 11-9-522 (Cumm. Supp. 1993). In this regard, Ark. Code Ann. § 11-9-522 provides the following, in pertinent part:
(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.
In the present claim, we find that the preponderance of the evidence establishes that the respondents did make work available to the claimant which was within his restrictions, which he accepted. Although his testimony suggests that the some of his assigned duties may have exceeded his physical restrictions, the evidence also indicates that the respondent employer made numerous changes in an attempt to accommodate the claimant and to provide employment within his physical restrictions, and the evidence establishes that work was provided which involved only minimal lifting, infrequent bending, and virtually no bending at the waist. In addition, the evidence indicates that the claimant began working at jobs after his termination which involved more strenuous labor that which was provided by the respondent employer. In fact, the claimant admits that he would still be working for the respondent employer if he had not been terminated in August of 1993.
With regard to the claimant's termination, 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 (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.
However, 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. 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, in considering whether employees have been dismissed for misconduct as that term is used in the Employment Security Act, the Court has made the following comments:
To 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.
Nibco, Inc. v. Metcalf Daniels, 1 Ark. App. 114, 613 S.W.2d 612 (1981); see also, Perry v. Gaddy, 48 Ark. App. 128, 891 S.W.2d 281 (1995); Shipley Baking Co. v. Stiles, 17 Ark. App. 72, 703 S.W.2d 465 (1986). In Belcher v. Holiday Inn, 49 Ark. App. 64, ___ S.W.2d ___ (1995), the Court suggested that Nibco, Inc. v. Metcalf Daniels, supra might be instructive in determining the meaning of the term "misconduct" as used in Ark. Code Ann. § 11-9-522.
In the present claim, we find that the claimant was terminated for misconduct in connection with the work. According to the testimony of Preston Garrett, personnel director at the time of the claimant's termination, the respondent employer becomes concerned when an employee's attendance drops below 90%, and the respondent employer places an employee on probation if attendance drops to 85% or below. The attendance of the claimant in the present claim dropped below 85% in May of 1993, and he was placed on probation. According to the testimony of Mr. Garrett, the time that the claimant missed due to his compensable injuries were not considered in calculating the claimant's attendance or determining that he had been absent excessively. On May 21, 1993, the claimant was placed on probation as a result of his absenteeism, and, at the time, he signed a document containing the following language:
Effective the date of this warning, you are placed on 90 days probation. During this probationary period, any absence which cannot be verified as having been absolutely unavoidable will result in immediate termination.
The claimant's termination occurred after he missed approximately one week in August of 1993, during the time that he was still on probation. According to the claimant's testimony, he missed the time due to marital difficulties he was experiencing, and he testified that he used the time to talk to his wife and to otherwise resolve the problems. He also testified that he talked to Mr. Garrett, and he suggests that Mr. Garrett granted him a personal leave of absence for this time off. On the other hand, Mr. Garrett testified that he did not grant the claimant a leave of absence during this time, although he recalls the claimant talking to him about marital problems. According to Mr. Garrett, he would not consider an absence for such reasons to "be unavoidable," and no leave of absence is documented in the attendance log.
In short, the preponderance of the evidence establishes that the respondent employer made employment available to the claimant which was within his physical capabilities and at the same wages he was earning at the time of his compensable injuries, and the preponderance of the evidence establishes that the claimant would still be employed by the respondent employer if he had not been terminated for excessive absenteeism in August of 1993. With regard to this termination, the evidence establishes that consistent and reliable attendance by its employees is important to the interest of the respondent employer, and the evidence establishes that this interest is communicated to the employees. Furthermore, the evidence establishes that the claimant was given ample warning that his attendance was not adequate, and he was given an opportunity to correct this problem. However, despite this express warning, the claimant continued to miss work. While resolving his marital difficulties certainly was an important matter requiring the claimant's attention, there is no evidence showing why this could not have been done at a time when he was not scheduled to work. Thus, the evidence failed to show why it was necessary for him to miss work in order to attend to these problems. Thus, these absences were contrary to the respondent employer's admonition against any absences other than those which could be verified as "absolutely unavoidable." Significantly, the claimant's poor attendance record was not related to his compensable injury. Therefore, we find that he was terminated for misconduct in connection with his work, and we find that an award of permanent disability compensation in excess of his permanent physical impairment is barred by Ark. Code Ann. § 11-9-522 (b).
We also find that the claimant failed to prove by a preponderance of the evidence that the respondents controverted the difference between the correct temporary total disability compensation rate and the rate initially paid. In this regard, the prehearing order filed by the administrative law judge on September 29, 1994, states that the parties stipulated that there was "no dispute over . . . temporary total disability at this time." However, at some point after this order was filed, the respondent carrier apparently became aware that temporary total disability compensation was paid at the incorrect rate, and the respondent carrier voluntarily made payment to the difference to the claimant for the difference. It was not until the hearing that the claimant raised the contention that the respondents controverted the difference between the two rates. Due to the lack of any other evidence related to this issue, we find that the preponderance of the evidence does not support a conclusion that the respondents controverted the difference in the two rates.
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 any permanent partial disability compensation in excess of the degree of permanent physical impairment established by the medical evidence, and we find that he failed to prove by a preponderance of the evidence that the respondents controverted the difference in the rates of temporary total disability compensation. Therefore, we find that the administrative law judge's decision must be, and hereby is, affirmed. This claim is denied and dismissed.
IT IS SO ORDERED.
Commissioner Humphrey dissents.