Opinion
CLAIM NO. E312569
OPINION FILED APRIL 24, 1995
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE EDDIE H. WALKER, JR., Attorney at Law, Fort Smith, Arkansas.
Respondents represented by the HONORABLE JAMES A. ARNOLD, II, Attorney at Law, Fort Smith, Arkansas.
Decision of Administrative Law Judge: Affirmed.
OPINION AND ORDER
The claimant appeals an opinion and order filed by the administrative law judge on August 4, 1994. In that opinion and order, the administrative law judge found that the claimant failed to prove that the respondent employer refused to return her to work in a position within her physical limitations; that she failed to prove that she is entitled to vocational rehabilitation; that she failed to prove that her injury was caused in substantial part by the failure of the respondent employer to comply with any Arkansas statute or official regulation pertaining to the health or safety of its employees; and, that she failed to prove that she sustained a permanent physical impairment.
After conducting a de novo review of the entire record, we find that the claimant failed to prove by a preponderance of the evidence that she is entitled to benefits for the respondent employer's refusal to return her to work in a position within her physical limitations. In addition, we find that the claimant failed to prove by a preponderance of the evidence that she is entitled to compensation for a permanent physical impairment. In addition, we find that she failed to prove that she is entitled to vocational rehabilitation. Finally, we find that the claimant failed to prove by a preponderance of the evidence that her injury was caused in substantial part by a safety violation. Consequently, we find that the administrative law judge's decision must be affirmed in all respects.
The claimant sustained an admittedly compensable injury on July 30, 1993. She was employed by the respondent employer as a feeder operator clean up employee. Her duties involved tearing down and cleaning the equipment after production was complete, and it involved putting the equipment back together and preparing it for the next production run. The claimant sustained a compensable injury when she experienced the onset of low back pain as she was using her body for leverage to push open a valve. She did not report the incident until she reported to work for her next shift.
She was first treated for this problem by Dr. S. Harford, the company physician. A MRI of the lumbar spine ordered by Dr. Harford showed degenerative changes at multiple levels. In addition, this MRI showed a small right paracentral disk herniation at L4-5 with some impression on the thecal sac and possible nerve involvement, and the MRI showed a mild bulge at L3-4. The MRI also showed slight retrolisthesis of L5 upon S1 due to degenerative disc space narrowing.
Based on these findings, Dr. Harford referred the claimant to Dr. Michael Standefer, a neurosurgeon. By the time that Dr. Standefer examined the claimant she was complaining of pain in her neck and shoulders as well as pain in her low back and left leg. Dr. Standefer performed cervical and lumber myelograms with post myelogram CT scans. The cervical myelogram and CT scan revealed mild spondylitic ridging at C5-6, but there was no evidence of a herniated nucleus pulposus. The lumbar myelogram and CT scan showed mild disc bulging at L4-5, but there was no evidence of any "obvious overt disc protrusion." Dr. Standefer also caused electrodiagnostic studies to be performed, and he concluded that these studies were unremarkable. Consequently, Dr. Standefer concluded that the claimant's symptoms were musculoskeletal in nature and that there was no neurosurgical problem. Therefore, he released the claimant from his care.
The claimant then came under the care of Dr. Claude Martimbeau, an orthopedic specialist. Dr. Martimbeau's November 4, 1993, physical examination revealed pain on deep palpation, but no spasm. The examination also revealed good cervical and lumbar range of motion. Based on these findings and the diagnostic results, Dr. Martimbeau diagnosed myofascitis of the upper and lower back, and he recommended conservative treatment. Dr. Martimbeau released the claimant from his care on January 11, 1994, when her condition did not improve with the conservative measures that he recommended. At the time, he made the following comments:
The patient has reached maximum medical improvement. She has been off work since July and she is not able to go back to work and do any repetitive bending or light carrying. I do not have any other specific to offer the patient to control her back pain except the usual nonsteroidal anti-inflammatory drug in the form of Ibuprofen. The patient should look into vocational rehabilitation for other type of work where she will not be exposed to a cold environment and where she doesn't have to do any repetitive motion with her back and work in a sitting position as much as possible. The patient is discharged and will be seen back only as a consultation. In the meantime, there is no specific permanent disability in relation to her work since no specific injury happened except her back pain while she was trying to turn a water valve.
With regard to the claimant's physical restrictions, Dr. Martimbeau made the following comments in a letter dated January 21, 1994:
. . . In answer to your specific questions, the patient is unable to return to her previous job. She may work in a job with the following restrictions; No standing more than four hours per day. No sitting for more than eight hours per day. No lifting of more than 10-15 pounds on an occasional basis. The patient is unable to work more than four hours per day.
Dr. Martimbeau has opined that the claimant should avoid working in temperatures less than 50 degrees. Dr. Standefer made the following comments with regard to the claimant's restrictions in a letter to her attorney dated March 21, 1994:
Although the patient has no evidence of an underlying surgically correctable disorder, it will be important for her to use caution with maneuvers such as heavy lifting or repeated bending. This would provide her with some protection for worsening of her lumbar pain. As such, it would be best if she could avoid lifting more than 45-50 pounds and only then on an occasion. In addition, she should avoid repeated bending if at all possible. In a similar fashion, avoidance of prolonged flexion or extension of the neck as well as avoidance of prolonged use of the upper extremities extended above the shoulders would provide the patient with some protection for worsening of her chronic neck pain.
Since the claimant's injury occurred after July 1, 1993, the provisions of Act 796 of 1993 apply to this claim, and resolution of this claim involves the interpretation of provisions added to the Arkansas Workers' Compensation Law by Act 796 which have not yet been interpreted. Prior to Act 796, the Arkansas Workers' Compensation Law was to be construed liberally, in accordance with the remedial purposes of the law. The liberal construction of a statute "expands the meaning of the statute to meet cases which are clearly within the spirit or reason of the law, or within the evil which it was designed to remedy, provided such an interpretation is not inconsistent with the language used."Black's Law Dictionary, 283 (5th ed 1979). However, as amended by Act 796, the provisions of the Arkansas Workers' Compensation Law are now to be strictly construed. Ark. Code Ann. § 11-9-704 (c)(3) (Cumm. Supp. 1993). A strict construction "is construction of a statute or other instrument according to its letter, which recognizes nothing that is not expressed, takes nothing that is not expressed, takes the language used in its exact and technical meaning and admits no equitable considerations or implications."Black's Law Dictionary, sura at 283; see also, Thomas v. State, 315 Ark. 79, 864 S.W.2d 835 (1993); Hice v. State, 268 Ark. 57, 593 S.W.2d 169 (1980); Arkansas State Highway Commission v. S.W. Bell, 206 Ark. 1099, 178 S.W.2d 1002 (1944) (McFaddin, J., dissenting). Furthermore, the General Assembly expressly admonished this Commission not to liberalize, broaden, or narrow the workers' compensation statutes. Ark. Code Ann. § 11-9-1001 (Cumm. Supp. 1993). Thus, applying the strict construction doctrine and considering this legislative admonishment, we cannot read anything into the Act that is not clearly stated in its language, unless the failure to do so would do manifest violence to the intent of the General Assembly.
However, even when a statute is to be strictly construed, the first rule of any statutory interpretation is to construe the language just as it reads, giving the words their ordinary and usually accepted meaning in common language. Mountain Home School District v. T.M.J. Builders, 313 Ark. 661, 858 S.W.2d 661 (1993). Moreover, the basic rule of statutory construction to which all other interpretive guides must yield is to give effect to the intent of the legislature. Thomas v. State, 315 Ark. 79, 864 S.W.2d 835 (1993); Mountain Home School District, supra. Consequently, where the language of the statute is plain and unambiguous, the legislative intent is determined from the ordinary meaning of the language used. Mountain Home School District, supra. When the General Assembly uses words that have a fixed and well known legal significance they are presumed to have been used in that sense. Young v. Energy Transportation Systems. Inc. of Arkansas, 278 Ark. 146, 644 S.W.2d 266 (1983). In addition, where ambiguous language is used or the context is uncertain, unless a particular sentence or phrase clearly conveys the legislative intent, the entire Act or section dealing with the subject matter must be looked to as a guide to interpretation. Fiser v. Clayton, 221 Ark. 528, 254 S.W.2d 315 (1953). However, even where statutes are to be construed strictly, common sense may be used in determining the legislative intent. State v. Johnson, 317 Ark. 226, 876 S.W.2d 577 (1994). Moreover, statutes are not to be so strictly construed that the interpretation leads to absurd results or defeats the plain purpose of the law. Thomas v. State, supra; Hice v. State, supra; Ragland v. Alpha Aviation, Inc., 285 Ark. 182, 686 S.W.2d 391 (1985).
In the present claim, the claimant contends that she is entitled to benefits under the provisions of Ark. Code Ann. § 11-9-505 (a) (Cumm. Supp. 1993), which were added to the Arkansas Workers' Compensation Law by Act 796. In this regard, Ark. Code Ann. § 11-9-505 (a) provides the following:
(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, such employer 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 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.
We find that the statute clearly and unambiguously imposes on a claimant the burden of proving by a preponderance of the evidence the following elements:
(1) that she sustained a compensable injury;
(2) that suitable employment which is within the employee's physical and mental limitations is available with the employer;
(3) that the employer has refused to return the claimant to work;
(4) that the employer's refusal to return the employee to work is without reasonable cause.
The failure of the claimant to satisfy any of these elements defeats a claim for benefits under this section.
In the present claim, Denise Cook, a registered nurse and workers' compensation case manager assigned to this claim, investigated the possibility of the claimant returning to work for the respondent employer when she was released by Dr. Martimbeau on January 11, 1994. On January 28, 1994, Ms. Cook met with the claimant and Greg Putman, safety services supervisor for the respondent employer to discuss potential jobs, and she testified that several potential jobs were discussed at this meeting. However, there was some question about Dr. Martimbeau's temperature restriction, and no decision was made until after that restriction was clarified. Once this was resolved, the respondent employer suggested a position on the production line removing foreign items from the product. Ms. Cook testified that she observed other employees performing this job, and she testified that she felt that the job was within the claimant's restrictions. However, the claimant attempted to perform the job on February 8, 1994, but she stopped and left the building after 50 minutes. According to her testimony, she experienced severe burning and pain in her neck, shoulders, arms, and low back as a result of the reaching involved in this job and because of standing on a concrete floor. The claimant testified that she understood that a padded stool was to be provided for her to sit on and that a mat was to be provided for her to stand on. The respondent employer provided an unpadded stool, but Mr. Putman testified that he understood that the claimant was to advise him if the padded stool and mat were needed. He also testified that the respondent employer was prepared to provide these accommodations if the claimant requested them.
There has been much discussion regarding whether this job was within the claimant's physical restrictions. However, as discussed, the claimant has the burden of proving that suitable employment within her physical limitations is available, and the claimant has taken the position that the job on the production line provided by the respondent employer is not within her physical limitations. In fact, while she indicated that she was willing to attempt the job if accommodations were provided, she also indicated that she did not know if she could perform these employment duties on a daily basis even if the accommodations were provided. Therefore, by the claimant's own admission, the suitability of this job to her physical limitations is subject to serious doubt. Furthermore, the claimant has not otherwise presented any evidence that the respondent employer has suitable employment within her physical limitations available. Therefore, we find that she failed to prove that the respondent employer has suitable employment within her physical limitations available. Thus, we find that she failed to prove that she is entitled to the additional benefits provided by Ark. Code Ann. § 11-9-505 (a).
In this regard, we note that the claimant seems to suggest that the statute requires employers to create suitable employment within an injured employee's physical limitations in order to avoid payment of the additional benefits. However, the statute does not impose such a requirement on employers. Instead, to avoid payment of the additional benefits, the statute merely requires employers to return injured workers to work if suitable employment within the employee's physical limitations is available.
Furthermore, although the claimant's failure to show that suitable employment within her limitations is available is sufficient to defeat her claim for additional benefits under this provision, we note that she failed to show that the respondent employer refused to return her to work. In this regard, the evidence indicates that the respondent employer made a diligent effort to evaluate the claimant's physical condition and to find a job within those limitations, and the evidence indicates that the respondent employer was prepared to make reasonable accommodations to adapt the job to fit within those limitations. However, without questioning whether the claimant experienced problems when she attempted to work, the evidence indicates that the claimant made little effort to work with the respondent employer in finding a suitable job. In this regard, she admits that she walked off of the job on February 8, 1994, without discussing the situation with anyone. Moreover, Mr. Putman testified that he contacted the claimant afterward and advised her that the job was available when she was ready to return and that he was prepared to make the requested accommodations, and the claimant admits that she has not made any attempt to return to work or to see if the proposed accommodations would allow her to perform the job. Based on these facts, we could not find that the respondent employer refused to return the claimant to work.
The claimant also contends that she is entitled to compensation for a permanent physical impairment. In this regard, Act 796 of 1993 did not change the requirement that an injured worker must prove by a preponderance of the evidence that she is entitled to an award for a permanent physical impairment. Therefore, when considering claims for permanent physical impairments, the Commission must impartially weigh all of the evidence in the record to determine whether the preponderance of the evidence establishes that the worker sustained a permanent physical impairment as a result of a compensable injury. With regard to this determination, Act 796 also did not change the statutory requirement that "[a]ny determination of the existence or extent of physical impairment shall be supported by objective and measurable physical or mental findings." Ark. Code Ann. § 11-9-704 (c)(1) (Cumm. Supp. 1993). However, Act 796 of 1993 amended the Arkansas Workers' Compensation Law to include the following definition of "objective findings:"
"Objective findings" are those findings which cannot come under the voluntary control of the patient. When determining physical or anatomical impairment, neither a physician, any other medical provider, an administrative law judge, the Workers' Compensation Commission, nor the courts may consider complaints of pain; for the purpose of making physical or anatomical impairment ratings to the spine, straight-leg raising tests or range-of-motion tests shall not be considered objective findings. Medical opinions addressing compensability and permanent impairment must be stated within a reasonable degree of medical certainty.
Ark. Code Ann. § 11-9-102 (16) (Cumm. Supp. 1993). In addition, Act 796 amended the Arkansas Workers' Compensation Law to provide the following:
Permanent benefits shall be awarded only upon a determination that the compensable injury was the major cause of the disability or impairment. If any compensable injury combines with a preexisting disease or condition or the natural process of aging to cause or prolong disability or a need for treatment, permanent benefits shall be payable for the resultant condition only if the compensable injury is the major cause of the permanent disability or need for treatment.
Ark. Code Ann. § 11-9-102 (5)(F)(ii) (Cumm. Supp. 1993). Considering the context in which the terms "permanent benefits" and "impairment" are used in this provision, the statute clearly imposes a requirement on a claimant seeking compensation for a permanent physical impairment to show that the compensable injury was the major cause of the impairment. "Major cause" is defined by the amended law as follows:
"Major cause" means more than fifty percent (50%) of the cause. A finding of major cause shall be established according to the preponderance of the evidence.
Ark. Code Ann. § 11-9-102 (14) (Cumm. Supp. 1993).
In the present claim, a MRI, a myelogram, and a post myelogram CT scan have shown degenerative changes in the claimant's cervical and lumbar spine. Certainly, these findings are sufficient to satisfy the statutory definition of "objective findings." However, as Dr. Standefer and Dr. Martinbeau both opined, these degenerative changes obviously preexisted the work-related accident, and both have opined that the claimant's complaints of pain are caused by these degenerative changes. In addition, Dr. Standefer also testified that there is nothing to indicate that these degenerative changes were precipitated by the claimant's work-related accident. Dr. Standefer also testified that the restrictions imposed on the claimant would have been imposed due to the degenerative condition even if she had not experienced the onset of pain during the course of her employment. Moreover, although the claimant contends that she was asymptomatic prior to the July 30, 1993, incident, reports from her family physician, Dr. T. A. Field, indicate that the claimant was complaining of low back pain on March 25, 1991, and that the claimant related a history of experiencing this pain for several months. The claimant also experienced lumbar and cervical problems several years ago as the result of an automobile accident.
In short, the evidence establishes that the claimant experienced the onset of pain after exerting a relatively minor amount of exertion in the course of her employment. In addition, the evidence establishes that this pain is produced by degenerative conditions which preexisted the employment and which was not precipitated or worsened by the employment. Moreover, the evidence establishes that the claimant had previously experienced problems with back pain of a similar nature. The evidence also establishes that the limitations imposed by her condition would have been imposed regardless of whether or not this work-related accident had occurred. Consequently, we find that the preponderance of the evidence fails to establish that the compensable injury was the major cause of the impairment, as required by the Arkansas Workers' Compensation Law, as amended by Act 796. Therefore, we find that the claimant failed to prove by a preponderance of the evidence that she is entitled to compensation for a permanent physical impairment.
Likewise, we find that the claimant failed to prove by a preponderance of the evidence that she is entitled to rehabilitation benefits. Under Ark. Code Ann. § 11-9-505 (b) (Cumm. Supp. 1993), the Commission has the discretion to approve or disapprove a plan of rehabilitation only if the employee is entitled to receive permanent disability benefits and if the employee has not been offered an opportunity to return to work and/or reemployment assistance. In the present claim, as discussed above, the evidence indicates that the claimant's work-related injury combined with her preexisting degenerative condition to cause her disability, and we find that the preponderance of the evidence fails to show that the compensable injury is the major cause of the any permanent disability suffered by the claimant. Consequently, in addition to finding that the claimant is not entitled to compensation for a permanent physical impairment, we also find that she failed to show that she is otherwise entitled to permanent disability compensation. Since she is not entitled to receive compensation for a permanent disability, we find that she is not entitled to receive rehabilitations benefits. In addition, even if she were entitled to permanent disability benefits, we would find that the respondent employer offered to return the claimant to work and, consequently, we would still find that she is not entitled to rehabilitation benefits.
Finally, the claimant contends that a safety violation penalty should be imposed on the respondent employer for failing to maintain a safe work place. Initially, we note that the Arkansas Workers' Compensation Law, as amended by Act 796 of 1993, no longer provides for the monetary penalty which was provided under the law previously in existence. As amended by Act 796, Ark. Code Ann. § 11-9-503 (Cumm. Supp. 1993) now provides the following:
Notwithstanding any other definition of extra-hazardous employer as provided by § 11-9-409 (3), any employer that fails to utilize the consultative safety services available through the Arkansas Department of Labor, their own insurance carrier or a private safety consultant shall be identified as an extra-hazardous employer if it is established by a preponderance of the evidence that an injury or death is caused in substantial part by the failure of an employer to comply with any Arkansas statute or official regulation pertaining to the health or safety of employees or fails to follow safety consultant recommendations, and when so notified the employer shall comply with 11-9-409 (3)(b) through (h) provided; if it is established by a preponderance of the evidence that the employee is injured as a result of the employee's violation of employer's safety rules or instructions, the provisions of this section shall not apply."
Nevertheless, in the present claim, we find that the claimant failed to prove by a preponderance of the evidence that her injury was caused in substantial part by the failure of the employer to comply with any Arkansas statute, any official regulation pertaining to the health or safety of employees, or to follow the recommendations of any safety consultant.
First, we point out that the claimant's brief does not address this issue even though the issue is listed in her notice of appeal. Moreover, the basis of her contention was not discussed at the hearing, and the contention stated in her prehearing questionnaire merely alleges that the respondent employer failed to provide a safe place to work. Therefore, in light of the claimant's failure to present a specific Arkansas statute, safety regulation, or recommendation of a safety consultant, we find that she failed to satisfy the requirement of the statute.
Furthermore, even assuming that the claimant is relying on Ark. Code Ann. § 11-2-117, the general safe place of employment statute, we find that the claimant failed to prove by a preponderance of the evidence that the respondent employer failed to provide a safe place of employment. In this regard, the claimant contends that her injury occurred because the valve on the cold water tank was difficult to turn due to improper maintenance. Johnny Burrow, a former co-employee and friend of the claimant, testified that the valve was difficult to open. According to his testimony, the valve typically would not be closed, but a leak in another valve necessitated the closing of this valve to prevent damage to glass tubes in the sterilization unit. Mr. Burrow also testified the he first noticed a problem with the valve in 1992, and he testified that he reported the problem to Darrell Odom, the shift supervisor, on two to three occasions. In addition, Mr. Burrow testified that the valve gradually became more difficult to open, and he testified that it became necessary for employees to use their hands to strike the valve handle and to use their bodies for leverage to push the handle. The claimant also testified that the valve was difficult to open, and she testified that she was using her body for leverage to push the valve handle when she was injured.
On the other hand, Scott Kurrus, the utilities engineer for the respondent employer, testified that he inspected the valve after the claimant's injury, and he testified that the valve was working properly. According to the testimony of Mr. Kurrus, the valve is a ball valve which requires no maintenance until the seals inside it wear out, and he testified that the ball actually moves more freely as the seals wear, causing the valve to be easier to open. He also testified that the working parts of the valve are chrome plated, so corrosion should not be expected. He also testified that he has seen ball valves of this type stick only when they have not been used for a substantial period of time, and he testified that this valve was frequently used.
In addition, Darrell Odem testified that he inspected equipment whenever problems were reported, and he testified that no problems had ever been reported on the particular valve that the claimant contends she was operating, although he testified that she once reported a problem with a different valve. Mr. Odem also testified that he inspected the valve involved in this claim after the claimant's injury, and he testified that the valve was working properly. Mark Kelly, an industrial rehabilitation specialist, also testified that he tested the valve to determine the force necessary to turn it on and off. He testified that 4 pounds of pressure were required to turn it on and that 6.5 pounds of pressure were necessary to turn it off.
In short, the only evidence that the valve handle was difficult to turn is found in the testimony of the claimant and Mr. Burrows. However, their testimony is contradicted by the testimony of Mr. Kurrus, Mr. Odom, and Mr. Kelly. Moreover, the only evidence pertaining to the internal operation of valves of this type suggests that it is unlikely that this valve was not operating properly. Therefore, we find that the claimant failed to prove by a preponderance of the evidence that her injury was caused in substantial part by the failure of the respondent employer to provide a safe work place.
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 the respondent employer refused to return her to suitable employment within her physical and mental limitations. In addition, we find that the claimant failed to prove by a preponderance of the evidence that she is entitled to compensation for a permanent physical impairment, and we find that she failed to prove by a preponderance of the evidence that she is entitled to rehabilitation benefits. Finally, we find that she failed to prove by a preponderance of the evidence that her injury was caused in substantial part by the respondent employer's violation of a safety provision. Consequently, we find that the administrative law judge's opinion must be, and hereby is, affirmed. This claim is denied and dismissed.
IT IS SO ORDERED.
Commissioner Humphrey dissents.