Opinion
CLAIM NO. E201309
OPINION FILED MAY 9, 1996
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by STEPHEN SHARUM, Attorney at Law, Fort Smith, Arkansas.
Respondents No. 1 represented by ROBERT HONEA, Attorney at Law, Fort Smith, Arkansas.
Respondent No. 2 represented by TERRY PENCE, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed.
OPINION AND ORDER
Respondents No. 1 appeal an opinion of the Administrative Law Judge awarding benefits for wage loss disability and finding that the Second Injury Fund has no liability in this case.
After our de novo review of the entire record, we find that claimant has proven by a preponderance of the evidence that he is entitled to benefits for a loss in earning capacity of 10% to the body as a whole. Additionally, we find that the Second Injury Fund has no liability in this case. Accordingly, we affirm the opinion of the Administrative Law Judge.
In determining the extent of permanent disability, the Commission may consider, in addition to the evidence of permanent anatomical impairment, claimant's general health, age, education, work experience, attitude, interest in rehabilitation, degree of pain and any other matters reasonably expected to affect his future earning capacity. Ark. Code Ann. § 11-9-522 (b)(1) (Repl. 1996); Glass v. Edens, 233 Ark. 786, 346 S.W.2d 685 (1961); Oller v. Champion Parts Rebuilders. Inc., 5 Ark. App. 307, 635 S.W.2d 276 (1982); Arkansas Wood Products v. Achley, 21 Ark. App. 138, 729 S.W.2d 428 (1987).
Claimant is 25 years old and has a high school education. During high school, claimant worked part-time as a janitor. Following high school, claimant attended trade school at Arkansas Valley Vo-Tech. However, claimant failed to complete the program in air conditioning and refrigeration. Further, claimant drove a bus for the trade school but no longer has his chauffeur's license. In April 1991, claimant began his employment with the employer. Claimant eventually became a forklift driver and a machine operator. Claimant's job duties involved bending, stooping, twisting, and lifting as much as 40 to 90 pounds. In addition to his employment with the employer, claimant also worked in the shipping and receiving department at Today's Kids.
While working for the employer in December 1991, claimant sustained an admittedly compensable lower back injury while pulling scrap material from an overhead rack. Claimant's legs went limp and he fell to the floor. Claimant eventually came under the care of Dr. James Buie, who diagnosed spondylolysis with forward slipping of the vertebra of L-5 on S-1, indicating spinal instability. Following decompression and fusion surgery in April 1992, Dr. Buie estimated claimant's overall permanent anatomical impairment at 26% to the body as a whole, with 8% of this rating attributable to claimant's preexisting lower back condition. Respondents no. 1 apparently accepted and paid benefits commensurate with the 18% rating. Dr. Buie recommended restrictions regarding repetitive stooping, bending, squatting, twisting or lifting over 25 pounds.
Claimant testified that he still experiences leg and lower back pain, for which he must take prescription medication. Claimant stated that he has problems bending, stooping, and lifting and that his daily activities are limited as a result of the work-related injury.
Claimant eventually returned to work with the employer as a sample maker but was subsequently discharged by the employer. Claimant also had to quit employment at Susan's Place as a truck driver delivering flowers. Claimant is currently unemployed but has applied for employment at the local office of Employment Security Division, the Arkansas Highway and Transportation Department, an insurance company and at various other local businesses. Claimant has also received assistance from the Arkansas Rehabilitative Services.
Based on the above evidence, and specifically including claimant's credible testimony, we find that claimant has proven by a preponderance of the evidence that he is entitled to benefits for a wage loss disability of 10% to the body as a whole.
On appeal, respondents' no. 1 argue that claimant is not entitled to any benefits for wage loss disability pursuant to Ark. Code Ann. § 11-9-522 (b)(2) (Repl. 1996), because claimant returned to work at wages equal to or greater than his average weekly wage at the time of the accident but was discharged for misconduct in connection with the work. See also, Ark. Code Ann. § 11-9-522 (c)(2) (Repl. 1996). Respondent no. 1 has the burden of proving these allegations by a preponderance of the evidence. Ark. Code Ann. § 11-9-522 (c)(1) (Repl. 1996); Ark. Code Ann. § 11-9-704 (c)(2) (Repl. 1996). After our de novo review of the entire record, we find that respondent has failed to meet its burden of proof. Accordingly, claimant is not barred from receiving benefits for a loss in earning capacity.
It appears that Dr. Buie began making attempts in the fall of 1992 to determine whether suitable work with the employer would be available to claimant. At that time, the employer responded that it had no positions within the restrictions imposed by the treating physician. In fact, the employer notified claimant in December 1992 that he was being discharged and that his medical coverage through the employer would expire on December 31, 1992. Claimant objected to his discharge, asserting his rights under the Americans With Disabilities Act. The employer eventually offered claimant a job as a sample maker and claimant returned to work on August 2, 1993. As noted by the Administrative Law Judge, it is curious that after claimant returned to work, the employer soon begin documenting disciplinary problems with claimant. Be that as it may, in February 1994, the employer discharged claimant, alleging poor work performance.
Although the job of sample maker may have paid claimant wages equal to or greater than his average weekly wage at the time of the accident, we find that the position was not suitable in relation to claimant's disability. Claimant had to cut samples of carpet padding to specifications provided by the employer. The employer apparently allowed claimant to sit or stand while performing this job and promised to reduce the size of the rolls of padding or allow someone to help claimant with the lifting. However, the employer required one-hour advance notice in order to locate and provide this assistance. The greater weight of the evidence indicates that the employer failed to adequately accommodate claimant as promised; that claimant had difficulty performing the job duties; and that the job duties exacerbated claimant's condition.
From February to May 13, 1994, claimant was employed at Susan's Place as a truck driver delivering flowers. Claimant testified that he also did some work in the greenhouse but had difficulty bending and stooping. Claimant's other job duties required riding in a truck over considerable distances and carrying plants. Claimant presented credible testimony that he quit this job because he was physically incapable of performing the required duties, especially riding in the truck. Further, Dr. Buie opined that riding in a vehicle "could be very aggravating." Therefore, we find that claimant quit this job with good cause connected with the work due to his disability.
Respondents no. 1 contend that claimant was discharged for misconduct connected with the work due to poor work performance. The employer alleged that the quality of claimant's work was poor and that he was caught sleeping on the job. Claimant believed he was discharged because of his disability. Claimant further testified that his disability hampered his ability to perform his job duties. Further, claimant denied that he was asleep but stated that he was merely resting to ease the numbness in his legs.
In Nipco, Inc. v. Metcalf, 1 Ark. App. 114, 613 S.W.2d 612 (1981), the court stated that:
. . . misconduct involves: (1) disregard of the employer's interests, (2) violation of the employer's rules, (3) disregard of the standards of behavior which the employer has the right to expect of his employees, and (4) disregard of the employee's duties and obligations to his employer.
To constitute misconduct, however, the definitions require more than mere inefficiency, unsatisfactory conduct, failure in good performance as a result of inability or incapacity, inadvertencies, ordinary negligence in isolated instances, or good faith error in judgement 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.
Even assuming the employer's allegations are true, which we do not so find, there is simply insufficient evidence that claimant's actions rise to the level of misconduct as defined inNipco, Inc., supra.
Respondents no. 1 contend that the Second Injury Fund is liable for any award of benefits for wage loss disability. We disagree.
In Midstate Const. Co. v. Second Injury Fund, 295 Ark. 1, 746 S.W.2d 539 (1988), the Arkansas Supreme Court set forth the test for determining Second Injury Fund liability.
It is clear that liability of the Fund comes into question only after three hurdles have been overcome. First, the employee must have suffered a compensable injury at his present place of employment. Second, prior to that injury the employee must have had a permanent partial disability or impairment. Third, the disability or impairment must have combined with the recent compensable injury to produce the current disability status. (Original emphasis).
We find that even if claimant suffered from a preexisting disability or impairment, there is insufficient evidence that such disability or impairment combined with the recent compensable injury to produce the current disability status. Thus, there can be no Second Injury Fund liability.
Apparently the preexisting lower back condition resulted from a football injury in 1986. Dr. Buie testified that the degree of spondylolysis was greater following the 1991 work-related injury than in 1987. Claimant testified that the 1986 injury completely resolved and he was able to lead a fairly active lifestyle without difficulty. Claimant's testimony concerning the seriousness of the football injury and his subsequent daily activities and lack of physical limitations was corroborated by Herbert Quinalty, claimant's grandfather. Therefore, we find that a preponderance of the credible evidence indicates that the 1991 compensable injury considered alone and of itself is responsible for claimant's current disability status.
We again note that Dr. Buie estimated claimant's overall permanent anatomical impairment at 26% to the body as a whole, with 8% of this rating attributable to claimant's preexisting lower back condition. Respondents no. 1 argue that it is "abundantly clear that combined impairments are enough to establish Second Injury Fund liability." However, this argument has been rejected several times. Mary Ellen Barber v. Clarksville Footwear, Full Commission opinion filed February 6, 1992 ( D812062); Arkansas Highway and Transportation Department v. McWilliams, 41 Ark. App. 1, 846 S.W.2d 670 (1993); Donald R. Williams v. USA Truck, Inc., Full Commission opinion filed January 6, 1994 ( E004590); Hawkins Construction v. Maxell, 52 Ark. App. 116, ___ S.W.2d ___ (1996).
Accordingly, we affirm the opinion of the Administrative Law Judge finding that claimant has proven by a preponderance of the evidence that he is entitled to benefits for a wage loss disability of 10% to the body as a whole. Additionally, we affirm the opinion of the Administrative Law Judge finding that the Second Injury Fund has no liability in this case. Respondents no. 1 are directed to comply with the award set forth in the opinion of the Administrative Law Judge. 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 opinion of the Administrative Law Judge. For prevailing on this appeal before the Commission, claimant's attorney is hereby awarded an additional attorney's fee in the amount of $250.00.
IT IS SO ORDERED.
DISSENTING OPINION
I respectfully dissent from the majority's opinion wherein the Commission affirmed the decision of the Administrative Law Judge. I specifically find the claimant failed to prove by a preponderance of the evidence that he sustained any wage loss disability. A.C.A. § 11-9-522 (B)(2) states: "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 the preponderance of the medical testimony and evidence." The record clearly reflects that respondent No. 1 returned claimant to a job that he was capable of doing at wages equal to or greater than what he was earning at the time of his compensable injury. The majority places undue emphasis on the claimant's termination. However, the claimant's termination was for reasons unrelated to his work-related injury and there is ample documentation to this effect. Moreover, the record reflects that the claimant secured employment with Suzanne's Plants after his termination by respondent No. 1. While employed by Suzanne's Plants, the claimant performed his job so competently that he had been given a promotion and a raise prior to voluntarily leaving his employment. The record reflects that the claimant left his employment with Suzanne's Plants after he had been awarded social security benefits.
In my opinion, the record clearly indicates that the claimant returned to work making equal wages for respondent No. 1 and actually worked for Suzanne's Plants making greater wages. Thus, it is my opinion that the claimant has failed to establish by a preponderance of the evidence that he is entitled to any wage loss disability. For these reasons, I would reverse the Administrative Law Judge's decision and, therefore, respectfully dissent.
ALICE L. HOLCOMB, Commissioner