Opinion
CLAIM NO. E904834
OPINION FILED AUGUST 28, 2001
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE H. DALE GRADY, Attorney at Law, Bryant, Arkansas.
Respondents represented by the HONORABLE MICHAEL E. RYBURN, Attorney at Law, Little Rock, Arkansas.
Decision of the Administrative Law Judge: Reversed.
OPINION AND ORDER
The claimant appeals an opinion and order filed by the Administrative Law Judge on April 30, 2001. In that opinion and order, the Administrative Law Judge found that the preponderance of the evidence fails to show the requirements of the test for benefits of Torrey v. City of Fayetteville, 55 Ark. App. 226, 934 S.W.2d 237 (1996) have been met. In addition, the Administrative Law Judge found that the preponderance of the evidence fails to show that the claimant had reached the end of his healing period and sustained permanent anatomical impairment during the one-year period beginning April 15, 1999.
After conducting a de novo review of the entire record, we find no legal significance as to whether or not the claimant had reached the end of his healing period and/or sustained permanent anatomical impairment during the one-year period beginning April 15, 1999, for purposes of determining whether or not the claimant has established the requirements for the test for benefits under Ark. Code Ann. § 11-9-505(a) (Repl. 1996). In addition, we find that the claimant has established by a preponderance of the evidence that he is entitled to an award of benefits in the amount of $11,513 pursuant to Ark. Code Ann. § 11-9-505(a). Therefore, we find that the decision of the Administrative Law Judge must be reversed.
The claimant worked as a logging truck driver for the employer on several occasions before returning to his latest employment for the respondent on or about April 1, 1999. The claimant had returned to work for only a few days when, on April 7, 1999, the logging truck he was operating broke down. The next day he and John Danner returned the disabled truck and proceeded to attempt to repair it. They decided that the rear-end assembly should be removed, placed it in the back of a pickup truck, took it elsewhere for repairs, and then returned it to the logging truck to be installed. While attempting to remove the rear-end assembly from the back of the pickup using a piece of pipe, the weight of the load unexpectedly bent the pipe, jerking the claimant to the ground and injuring his back. The compensability of this injury was the subject of a prior hearing, which resulted in a ruling in favor of compensability and an award of medical benefits and an attorney's fee.
The Administrative Law Judge who heard the live testimony and observed the demeanor of the witnesses at the present hearing, found credible the claimant's testimony at the current hearing that, although he was in pain, he continued to work after the injury. The claimant was seen by Dr. Chrysti Williams on April 14, 1999. The claimant testified on cross examination that he had back pain, but could still do the job. The claimant indicated that he missed two or three days of work because he was angry about the dismissive way the employer had treated him when he reported his injury. The claimant further testified that when he picked up his check on or about April 15, he was told that they "didn't need me no more." However, the claimant maintained that he never had a period where he was disabled, and that he was always able to drive a truck. The claimant testified that he was later prevented from working for a period of about 30 days during which he was involuntarily confined in a drug rehabilitation facility.
With regard to his earnings after April 15, 1999, the claimant worked as a truck driver for other employers, including J. M. Bozeman of Malvern, Hoskins Trucking, and Scott Glaze Logging. While working for Glaze, the claimant earned $115 a day, five days a week, for four weeks, totaling $2,300. Pay records from the other employers were included in the hearing transcript. The claimant calculated that he earned $12,320 during the one-year period after April 15, 1999, whereas he would have earned $26,000 during the one-year period had he worked for the respondents based on his average weekly wage of $500 at the time he was fired. Therefore, the claimant's actual earnings fell short of his average weekly wage for the period by a total amount of $13,680. However, the claimant concedes that this amount should be reduced by $2,167 which represents the average weekly wage lost as a result of his drug rehabilitation program, leaving a total shortfall of $11,513 which the claimant asserts he is owed pursuant to Ark. Code Ann. § 11-9-505(a). After conducting a de novo review of the entire record, we agree.
Ark. Code Ann. § 11-9-505(a) states:
(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, 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 (1) year.
(2) In determining the availability of employment, the continuance in business the employer shall be considered, in 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.
In Torrey v. City of Fort Smith, 55 Ark. App. 226, 934 S.W.2d 237 (1996), the Arkansas Court of Appeals stated that in order to be entitled to an award of benefits under Ark. Code Ann. § 11-9-505(a), the employee must establish (1) that he sustained a compensable injury; (2) that suitable employment within his physical and mental limitations was available with the employer; (3) that the employer refused to return the employee to work; and (4) that the employer's refusal to return the employee to work was without reasonable cause.
In the present case, a prior Commission finding establishes that the claimant did in fact sustain a compensable injury while employed by the respondent. Therefore, the first requirement has been met. With regard to the third and fourth requirements, the Administrative Law Judge, who heard the live testimony and observed the demeanor of the witnesses, has concluded that the testimony of the respondent's witnesses is not convincing and that the preponderance of the credible evidence shows that the claimant had complied with the employer's directions regarding his employment conditions. Moreover, the Administrative Law Judge found that a preponderance of the credible evidence establishes that the claimant was terminated by the respondent, that the claimant stopped coming to work after that termination, and that the termination by the employer was without reasonable cause. We place significant weight on the Administrative Law Judge's credibility determinations in this regard, and on that basis, we find that the claimant has established by a preponderance of the credible evidence that the respondent employer refused to return him to work through termination, and that the employer's refusal to return him to work was without reasonable cause. Therefore, we find that the claimant has also established by a preponderance of the credible evidence both the third and fourth requirements underTorrey.
After initially finding credible the claimant's testimony that he returned to work after the injury until he was terminated, the Administrative Law Judge nevertheless denied the claimant benefits by finding that the claimant failed to establish the second element under Torrey, by stating:
Here, the preponderance of the evidence shows, first, that the claimant sustained a compensable lumbar strain, as described above. However, whether suitable employment remains available is, to some extent, a matter of speculation. In Torrey, the City of Fort Smith was said to employ over 600 persons and, in fact, had encouraged the claimant to apply for less physically demanding positions, although he was not rehired. Here, there is insufficient evidence that positions were open or that additional employees were hired for any position, after the claimant's employment was terminated. Thus, the preponderance of the evidence fails to show that any employment was available with this employer at that time, much less whether such employment was within the claimant's physical and mental restrictions. [Emphasis ours.]
As something of an alternative ground for denying benefits, the Administrative Law Judge also concluded:
Ark. Code Ann. § 11-9-505, by its title, provides additional compensation for rehabilitation. Unless entitled to benefits for permanent anatomical impairment, the claimant is not entitled to rehabilitation benefits under this provision. See, e.g., Hampton Crain v. Black, 34 Ark. App. 77 (1991). This is consistent with the measure of damages provided by Ark. Code Ann. § 11-9-505(a), which is the difference between "benefits received" and the average weekly wage lost during the one-year period. Even in Torrey, the employee had been released from the care of his physician before he attempted to resume his employment. Thus, the benefits requested by the claimant are not available unless the record shows that he had reached the end of his healing period and has sustained permanent anatomical impairment. [Emphasis ours.]
Considering first the Administrative Law Judge's alternative grounds for denying benefits, we agree with the claimant's attorney's observation that the Administrative Law Judge's new statutory interpretation about the end of the healing period and permanent anatomical impairment as a prerequisite to a Section 505(a) claim goes far beyond the scope of our prior remand order instructions directing the Administrative Law Judge to make findings pursuant to the Torrey test. It appears that the Administrative Law Judge either raised a new legal issue on his own on remand, or he permitted the respondents to raise a new legal issue on remand, despite the specificity of our remand instructions in this case.
Furthermore, we are not aware of anything in Section 505 itself or any of the cases interpreting Section 505(a) that would support the Administrative Law Judge's finding that a claimant must have reached the end of his healing period before he could receive any benefits pursuant to Ark. Code Ann. § 11-9-505(a). As we understand the plain wording of the statute quoted above and the case law interpreting that statute, the relevant question is whether work is available within the employee's physical and mental limitations with the employer when the claimant attempts to return to work regardless of whether or not the healing period has yet ended. Moreover, the Administrative Law Judge's statutory interpretation (adding a new unstated requirement that the healing period must have already ended) would seem to defy the legitimate objective of attempting to return injured employees to work as soon as medically feasible to do so, and would also seem to provide respondents a somewhat bizarre defense to Section 505(a) liability if the employer hurries and unreasonably terminates an employee before the employee's healing period has ended (as the Administrative Law Judge has determined occurred in this case).
We point out that the provisions of Act 796 of 1993 are to be strictly construed. See Ark. Code Ann. § 11-9-704(c)(3) (Repl. 1996). Moreover, the General Assembly has specifically indicated that in the future if such things as the scope of the Workers' Compensation statutes need to be liberalized, condensed, or narrowed, those things should be addressed by the General Assembly, and should not be done by Administrative Law Judges, the Workers' Compensation Commission, or the courts. Ark. Code Ann. § 11-9-1001 (Repl. 1996).
As the Arkansas Supreme Court explained in Hapney v. Rheem Manufacturing Co., 341 Ark. 548, 26 S.W.2d 771 (2000):
This court recognizes its duty to strictly construe workers' compensation statutes pursuant to Ark. Code Ann. § 11-9-704(c)(3) (Repl. 1996). Strict construction means narrow construction and requires that nothing be taken as intended that is not clearly expressed. The doctrine of strict construction requires this court to use the plain meaning of the language employed. [Citations omitted.]
For all of the foregoing reasons, we find it legally irrelevant for purposes of analysis under Ark. Code Ann. § 11-9-505(a) when, if ever, the claimant's healing period ended after April 15, 1999, and whether or not the claimant ever sustained permanent anatomical impairment during the one-year period beginning April 15, 1999.
For the following reasons, we also disagree with the Administrative Law Judge in finding that the claimant failed to establish the second requirement of the Torrey test. The Administrative Law Judge has concluded, as have we, that the claimant's testimony is credible that he continued to work for the respondent after his injury, and that he was always able to drive a truck. Therefore, the only rational conclusion that can be drawn is that the claimant has established that work was available with the respondent within his physical and mental restrictions at the point in time that he was fired, since the claimant was in fact actually performing said work at the time he was fired.
In finding that the claimant failed to establish the second requirement of the Torrey test, the Administrative Law Judge seems to imply that the claimant also has a duty to prove that the respondents had work within his restrictions available after the claimant was fired, and that the claimant cannot be awarded one year of Section 505(a) benefits unless the claimant can establish that work was available with the respondents continuously for the one-year period after he was fired.
However, if this is what the Administrative Law Judge had in mind, then his conclusion appears to be completely at odds with one of the essential findings in Torrey itself. In this regard, inTorrey, the Full Commission found that once a position is filled, there is no longer suitable employment available for purposes of establishing the employer's unreasonable refusal to return the employee to work. In rejecting the Full Commission's interpretation that the claimant must establish that a position within the claimant's capabilities remains unfilled after the employer initially refuses to return the employee to work, the Court stated:
Further, we do not agree with the Commission's finding that the period of refusal lasts only until a position is filled. We believe that the better rule is that the period of refusal lasts as long as the employer is doing business not to exceed the one year limit for payment of additional benefits.
Since the Court of Appeals has already specifically held inTorrey that a claimant need not prove that the position he is physically and mentally qualified to perform remains unfilled for any particular period after he was initially refused a return to work by his employer, we cannot agree with the Administrative Law Judge's suggestion that the claimant in this case had such a burden of proof under the second requirement in the Torrey test. As we understand the law, the claimant established the second element of the Torrey test when he established that he returned to work driving for the respondents and was still capable of performing that work at the time he was terminated. As we interpret Torrey, the claimant had no duty to put on evidence as to what positions remained open or who was hired after he was unreasonably refused work, his burden of proof being only to establish that work was available at the time of the respondents' unreasonable refusal to return him to work (i.e., at the time of his unreasonable termination). Since the claimant was in fact working for the respondent doing his pre-injury job at the time he was unreasonably fired, that fact establishes the additional fact that there was work available within his restriction at the time of his termination. Consequently, for the foregoing reasons, we find that the claimant has established all four elements necessary to establish an award of benefits under Ark. Code Ann. § 11-9-505(a).
In addition, based on the evidence presented at the hearing, as discussed above, we find that the preponderance of the evidence establishes that the claimant has experienced a loss in average weekly wages totaling $11,513 during the one-year period in question, and the respondents are ordered to pay the claimant $11,513 pursuant to Ark. Code Ann. § 11-9-505(a).
We also find that the claimant's attorney is entitled to the maximum statutory attorney's fee on the benefits awarded herein, one-half of which is to be paid by the claimant and one-half to be paid by the respondents in accordance with Ark. Code Ann. § 11-9-715. All accrued benefits shall be paid in a lump sum without discount and with interest thereon at the lawful rate from the date of the Administrative Law Judge's decision in accordance with Ark. Code Ann.§ 11-9-809 (Repl. 1996). For prevailing on this appeal before the Full Commission, claimant's attorney is hereby awarded an additional attorney's fee in the amount of $250.00 in accordance with Ark. Code Ann. § 11-9-715 (Repl. 1996).
IT IS SO ORDERED.
______________________________ ELDON F. COFFMAN, Chairman
______________________________ SHELBY W. TURNER, Commissioner
Commissioner Wilson dissents.