Opinion
CLAIM NO. F002074
ORDER FILED SEPTEMBER 26, 2001
Upon remand before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE DALE GRADY, Attorney at Law, Bryant, Arkansas.
Respondents represented by the HONORABLE NEAL L. HART, Attorney at Law, Little Rock, Arkansas.
Decision of the Administrative Law Judge: Affirmed in part and reversed in part.
OPINION AND ORDER
Claimant appeals a January 17, 2001 opinion by an Administrative Law Judge denying his claim for additional benefits.
The Administrative Law Judge found that claimant was not entitled to any additional benefits for temporary total disability or temporary partial disability; that claimant is not entitled to benefits pursuant to Ark. Code Ann. § 11-9-505(a)(1) (Repl. 1996); and that claimant is not entitled to a change of physician or an independent medical evaluation. Claimant has limited the issues on appeal to whether he is entitled to benefits for temporary total disability or pursuant to Section 505(a).
Claimant has the burden of proving by a preponderance of the evidence that he is entitled to compensation. Jordan v. Tyson Foods, Inc., 51 Ark. App. 100, 911 S.W.2d 593 (1995). Questions of credibility and the weight and sufficiency to be given evidence are matters within the province of the Workers' Compensation Commission. Swift-Eckrich, Inc. v. Brock, 63 Ark. App. 118, 975 S.W.2d 857 (1998). After our de novo review of the entire record, we find that claimant has met his burden of proof with regard to entitlement to benefits pursuant to Section 505(a). Accordingly, the opinion of the Administrative Law Judge is affirmed in part and reversed in part.
On February 5, 2000, claimant sustained an admittedly compensable left shoulder injury while unloading a pallet. Respondent apparently paid appropriate benefits through April 13, 2000, at which time respondent contended that it had paid all benefits to which claimant is entitled. The parties stipulated that benefits for temporary total disability were paid through April 13, 2000, except for two days claimant tried to work in February. On February 15, 2000, Dr. Peeples released claimant to return to light duty work. Claimant was assigned work feather dusting and sweeping the floor. While the employer certainly attempted to accommodate claimant's light duty restrictions, claimant presented credible testimony that the job duties, especially sweeping the floor, aggravated his shoulder condition. Claimant stated that he could not physically continue to work after February 16, 2000. Claimant left work that day but later informed the employer that he was still in pain and needed to go back to see a physician. According to the parties' stipulation, respondent continued to pay temporary total disability benefits. Claimant was seen for the first time by Dr. Charles Pierce, another orthopedic surgeon, on March 9, 2000 and was given a complete release from work. On April 13, 2000, Dr. Pierce released claimant to light duty work involving no lifting, pushing, or pulling greater than 25 pounds. Respondent apparently received all the off work or restricted work slips prepared by the treating physicians. When claimant tried to return to work on April 14, 2000, he was informed that his employment had been terminated for failure to maintain contact with the employer.
Again, claimant was receiving temporary total disability during this period of time, except for the two days he tried to work. Respondent hired an independent case nurse to closely monitor claimant's treatment. The nurse was aware of the above facts and this awareness should be imputed to the employer.
Claimant testified that he could have worked as of April 13, 2000, as long as the job duties did not involve too much shoulder movement. On April 15, claimant presented himself to the Employment Security Division, seeking benefits and asserting that he was ready, willing, and able to work. Shortly thereafter, claimant moved out of state and apparently never received unemployment insurance benefits.
Claimant's average weekly wage at the time of the injury was $320 based on a rate of pay of $8 per hour. Claimant found work in Missouri on May 9, 2000 at a machine shop earning $7 per hour or $280 per week. He worked at this job until July 31, 2000, when he voluntarily quit for reasons unrelated to the compensable injury. Claimant testified that he could have worked between July 31 and September 6, 2000, if he had been able to find a job. On September 6, 2000, claimant obtained employment earning $400 per week driving a truck in Arkansas.
Benefits for temporary total disability involving unscheduled injuries are paid during that period within the healing period in which claimant suffers a total incapacity to earn wages. Arkansas State Highway and Transportation Dept. v. Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981). Claimant's own testimony is that he has had the capacity to work since April 13, 2000, when he was released by Dr. Pierce. Based on this testimony, we find that claimant is not entitled to benefits for temporary total disability subsequent to April 13, 2000. Although the Administrative Law Judge erroneously denied these benefits pursuant to Ark. Code Ann. § 11-9-526 (Repl. 1996), we nevertheless affirm this denial based on the above reasoning.
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 of the employer shall be considered, and 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.
The first element necessary to establish an award of benefits under Section 505(a) has been met by the parties' stipulation that claimant sustained a compensable injury on February 5, 2000. With regard to the second element, respondent does not argue that it did not have suitable, available employment within claimant's physical and mental limitations. Respondent argues instead that it was justified in terminating claimant's employment and replacing him. Additionally, respondent admittedly refused to return claimant to work. Accordingly, the second and third elements necessary to prove entitlement to benefits have been established.
Thus, claimant's entitlement to benefits pursuant to Section 505(a) turns on whether the employer's refusal to return claimant to work was without reasonable cause. While respondent faults claimant for not maintaining contact with the employer subsequent to February 16, 2000, it must be remembered that claimant was receiving benefits for temporary total disability throughout the pertinent period of time. Further, Dr. Pearce had taken claimant completely off work until the release on April 13, 2000. The independent case nurse was aware of these facts; thus, the employer either was in fact aware of the situation or awareness should be imputed to the employer through the independent case nurse. Accordingly, we find that the termination of claimant's employment was without reasonable cause. Consequently, the employer's subsequent refusal to return claimant to work was likewise without reasonable cause. Therefore, we find that claimant has established each element necessary to be entitled to benefits pursuant to Section 505(a).
Accordingly, beginning April 13, 2000, claimant is entitled to receive 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. Ark. Code Ann. § 11-9-505(a)(1) (Repl. 1996); Torry v. City of Fort Smith, supra.
For the foregoing reasons, we affirm the opinion of the Administrative Law Judge denying additional benefits for temporary total disability. Additionally, we reverse the opinion of the Administrative Law Judge denying benefits pursuant to Section 505(a). Further, we find that claimant's attorney is entitled to the maximum statutory attorney's fee based on the benefits awarded herein, one-half of which is to be paid by claimant and one-half to be paid by respondent in accordance with Ark. Code Ann. § 11-9-715 (Repl. 1996). 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
CONCURRING AND DISSENTING OPINION
I respectfully concur in part and dissent in part from the majority opinion. Specifically, I concur in the majority's finding affirming the Administrative Law Judge's decision denying additional temporary total disability. However, I must dissent from the majority's finding that claimant is entitled to 505(a) benefits from April 13 to September 9, 2000. In my opinion, claimant has failed to meet his burden of proof.
_____________________________ MIKE WILSON, Commissioner