Opinion
CLAIM NO. E505134
OPINION FILED MARCH 26, 1997
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by DAVID McCORMICK, Attorney at Law, Russellville, Arkansas.
Respondent represented by CHESTER LOWE, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed as modified.
OPINION AND ORDER
An Administrative Law Judge entered an opinion and order in the above-captioned claim on April 29, 1996, finding that claimant had proven, by a preponderance of the credible evidence, that she was entitled to an award of indemnity benefits under Ark. Code Ann. § 11-9-505 (a) (Repl. 1996) from May 16, 1995, until such time as she returned to work. The Administrative Law Judge further found that claimant had failed to prove that respondent employer had violated Ark. Code Ann. § 11-9-107 (Repl. 1996), which relates to employment discrimination predicated upon the filing of a workers' compensation claim.
Respondents now appeal from that opinion and order, contending that claimant is not entitled to indemnity benefits under Ark. Code Ann. § 11-9-505 (a) (Repl. 1996). Claimant has cross-appealed, asserting that the Administrative Law Judge erred in finding that respondent employer had not violated the provisions of Ark. Code Ann. § 11-9-107 (Repl. 1996).
Following our de novo review of the entire record, we specifically find that claimant has proven, by a preponderance of the credible evidence, that she is entitled to an award of indemnity benefits under Ark. Code Ann. § 11-9-505 (a) (Repl. 1996) beginning June 1, 1995, and continuing for up to one (1) year or until such time as claimant returned to work at her pre-injury wages — whichever occurs first. We further specifically find that claimant has failed to prove any violation of Ark. Code Ann. § 11-9-107 (Repl. 1996) on the part of respondent employer. The decision of the Administrative Law Judge must therefore be affirmed as modified.
Ark. Code Ann. § 11-9-505 (a) (Repl. 1996) provides, in its entirety, that:
(a)(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.
(a)(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 order to receive an award of benefits under the foregoing statute, claimant must prove:
(1) that she sustained a compensable injury;
(2) that suitable employment which was within the employee's physical and mental limitations was available with the employer;
(3) that the employer refused to return the claimant to work;
(4) that the employer's refusal to return the employee to work was without reasonable cause.
Torrey v. City of Fort Smith, 55 Ark. App. 226, ___ S.W.2d ___ (1996).
The parties have previously stipulated that claimant sustained a compensable injury on December 13, 1994 (which the evidence reveals took the form of lateral epicondylitis in claimant's right arm), and we accordingly find that the first of the requirements set out above has been met. Also, there is no dispute that claimant was not returned to work for a period of time, and testimony offered by Mr. Michael Fisher, respondent employer's human resources "team leader," persuades us to find that the third of the Smith requirements has been satisfied:
Q. All right. Let me just ask you Mr. Fisher. Why didn't Kimberly Clark permit Gail Sutton to return to her job as a team technician in this period of time we've been discussing in May, June, of `95 and thereafter?
A. It primarily came down to the issue of what Dr. Ward described as the chronic issue. And we didn't want to — we feel we've got a responsibility that we're not going to put someone at more risk for further injury of this nature. That — our position hasn't changed. That if Dr. Ward felt that she could come back without that risk of further injury and could meet the essential job functions, the 40 pound weight limit, we're ready and waiting.
Mr. Fisher's testimony, discussed further below, also reveals that claimant was not permitted to return to either one of a pair of temporary assignments for which she applied on or about June 1, 1995.
We are left then, to consider whether suitable employment was available with respondent employer and, if so, was respondent employer's refusal to return claimant to work unreasonable? As set out below, we find that both questions should be answered in the affirmative.
We are first of all persuaded that suitable employment which was within claimant's physical and mental limitations was available with respondent employer during the relevant time period.
We find claimant's testimony to be credible, and note her explanation that she applied for a "front desk team technician" position and a "lab job" on approximately June 1, 1995. These were temporary "rotations" for six months and one year respectively. Claimant testified that the front desk job would involve "answering the phone . . . filing, that type of thing," and that the lab job included:
washing out the beakers or doing tests on each shift's batch. Mixing the solutions up. Filling beakers up. Writing up reports. Putting that in the computer. That type of thing.
Claimant went on to explain that she "knew I should of been able to fill those." However, she was not offered either position. In addition to his testimony quoted above, Mr. Fisher provided the following explanation as to why claimant was not returned to either the front desk or lab jobs:
Q. All right. Now, why was it that — what was it as far as the company was concerned, prevented Ms. Sutton from filling one or both positions?
A. Two issues. One again going back to Dr. Ward's words. That the chronic nature of the injury. And the second thing. Part of that process for filling those temporary assignments is senior most qualified. And in both of those cases there were other technicians who were more senior. And for that reason that selection was made.
And later,
Q. What if you had filled that job — given one of those jobs to Ms. Sutton over someone who was more senior qualified. What would have been the problem with that?
A. Well, as I see it. Probably couple of things. One, since the injury is chronic we still have that same issue of repetitive motion on the temporary assignments. So, there's no guarantee that she would be able to sit and not hurt herself there. But the other issue is what does that do to that system and again the rest of the team technicians who may have wanted that same position. Who have said, "Hey, I've been here longer. I've met the requirements. How come I couldn't."
Concerning claimant's medical restrictions, we note that Dr. Thomas M. Ward issued a 3% permanent anatomical impairment rating on June 2, 1995, and advised "six months of limited or other than repetitive activity of the upper extremities." Previously, on May 25, 1995, Dr. Ward had released claimant to return to work with the imposition of a ten pound weight-lifting restriction and a warning against any "chronic repetitive upper extremity function."
We note first of all that the witnesses for respondent employer have merely asserted that the temporary positions at issue involved the sort of activity proscribed by Dr. Ward. Very little evidence, testimonial or otherwise, has been offered to substantiate this assertion, other than Ms. Martha Graham's (the plant nurse) explanation that the desk job involved a "computer task," and that the lab job was "repetitive because it involves repeatedly taking small objects and filling them and doing an assortment of cleaning and making cultures."
In light of claimant's credible testimony as to her understanding of what each job entailed, and her positive assertion that she was capable of performing both, we are persuaded to find that suitable work within claimant's restrictions was available with respondent employer during the relevant time period, and are not convinced otherwise by Nurse Graham's testimony alone.
We are also aware of respondent employer's considerable reliance on its seniority policy, which we cannot consider in the instant case due to insufficient evidence that said policy was a written one or part of a broader collective bargaining agreement.
Based on the foregoing, we specifically find that respondent employer had suitable work available within claimant's physical and mental restrictions, and that a period of refusal to return claimant thereto began on June 1, 1995.
With regard to whether respondent employer's refusal to return claimant to work was reasonable, Mr. Fisher's testimony, taken as a whole, convinces us that claimant was not likely to be invited back for any position until Dr. Ward essentially pronounced her free of the risk of re-injury. It is also evident from Mr. Fisher's testimony that a forty pound weight-lifting requirement prevented claimant from returning to her former position. As noted above, seniority concerns added to claimant's difficulties with regard to the temporary "rotation" jobs.
In Torrey v. City of Fort Smith, 55 Ark. App. ___ S.W.2d ___ (1996), cited above, the Arkansas Court of Appeals offered the following comments concerning whether a "refusal" to return an injured employee to work is "reasonable":
At a minimum, Ark. Code Ann. § 11-9-505 (a) requires that when an employee who has suffered a compensable injury attempts to re-enter the work force the employer must attempt to facilitate the re-entry into the work force by offering additional training to the employee, if needed, and reclassification of positions, if necessary. 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.
First, we can find no significant effort on the part of respondent employer to facilitate claimant's re-entry into the work force. In fact, Mr. Fisher expressly testified that "company position is that we really don't have light duty . . . every employee in that classification to be able to do all of the tasks. And once they can to come on back."
Second, in our opinion, it is patently unreasonable to expect any doctor to pronounce an employee, no matter how well their condition may have resolved, as being "free" of a risk of re-injury. Also, considering the Court of Appeals' comments in Torrey, we believe it is also unreasonable for respondent employer to impose a forty-pound weight-bearing requirement upon a claimant that is prepared to make a good-faith attempt to return to work and has been cleared to do so by her physician.
The foregoing factors, taken in conjunction with respondent employer's failure to facilitate claimant's re-entry into the work force, persuade us to find that respondent employer has unreasonably refused to return claimant to suitable employment. Again, looking to the Court of Appeals' statements in Torrey, we find that the period of such refusal persisted for as long as respondent employer remained in business, but not in excess of the one year statutory limit or beyond such time as claimant may have returned to work at her pre-injury wages (the record suggests that claimant had been invited to return to work for respondent employer as of the time of the hearing).
As a final matter, we are unable to agree with claimant's assertion that respondent employer has committed a violation of Ark. Code Ann. § 11-9-107 (Repl. 1996). That statute provides, in pertinent part, that:
(a)(1) Any employer who willfully discriminates in regard to the hiring or tenure of work or any term or condition or work of any individual on account of the individual's claim for benefits under this chapter, or who in any manner obstructs or impedes the filing of claims for benefits under this chapter, shall be subject to a fine of up to ten thousand dollars ($10,000) as determined by the Arkansas Workers' Compensation Commission.
While we find that respondent employer's refusal to return claimant to suitable work was unreasonable, we cannot say that this same refusal rises to the level of "willful discrimination." We are convinced by Mr. Fisher's testimony that respondent employer's actions were motivated not by an intent to discriminate against claimant, but rested instead upon general company policy and at least some concerns relating to her injury. The fact that these motives produced a refusal that was unreasonable does not amount to discriminatory conduct. On the record before us, we are simply unable to determine that respondent employer "willfully discriminated" against claimant owing to her filing of a claim for workers' compensation benefits.
Based on our de novo review of the entire record, and for the reasons discussed herein, we specifically find that claimant has proven, by a preponderance of the credible evidence, that she is entitled to an award of indemnity benefits as per Ark. Code Ann. § 11-9-505 (a) (Repl. 1996), for a period beginning June 1, 1995, and extending for a maximum of one year or until such time as claimant returned to work at her pre-injury wages, if such a return occurred prior to one year from June 1, 1995. We further specifically find that claimant has failed to prove that respondent employer has violated Ark. Code Ann. § 11-9-107 (Repl. 1996). The decision of the Administrative Law Judge must therefore be, and hereby is, affirmed as modified.
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 as provided by Ark. Code Ann. § 11-9-715 (b) (Repl. 1996).
IT IS SO ORDERED.
CONCURRING AND DISSENTING OPINION
While I concur with the majority's affirmance of the Administrative Law Judge's finding that claimant is entitled to an award of indemnity benefits under Ark. Code Ann. § 11-9-505 (a) (Repl. 1996), I must respectfully dissent from the finding that respondent employer bears no liability under Ark. Code Ann. § 11-9-107 (Repl. 1996).
PAT WEST HUMPHREY, Commissioner
DISSENTING OPINION
I respectfully dissent from the majority's opinion. Although the Court of Appeals reversed our opinion in its recent decision in Torrey v. City of Fort Smith, the four requirements which must be met in order to be entitled to benefits pursuant to Ark. Code Ann. § 11-9-505 (a) have not changed. First, the employee must prove by a preponderance of the evidence that he sustained a compensable injury. Secondly, claimant must prove that suitable employment which is within his physical and mental limitations is available with the employer. Thirdly, claimant must prove by a preponderance of the evidence that the employer has refused to return him to work. And finally, claimant must prove by a preponderance of the evidence that the employer's refusal to return claimant to work is without reasonable cause. See Torrey v. City of Fort Smith, 55 Ark. App. 226, 230, ___ S.W.2d ___ (1996).
In Torrey, the stated reason for not hiring Mr. Torrey to fill an available position was that a "more qualified" individual was hired instead. The court held that our interpretation of reasonable cause to refuse to return an employee to work based upon hiring a more qualified person is too subjective. In light of the court's holding in Torrey it now appears that qualifications for hiring are merely subjective and thus, irrelevant. The court institutes a form of affirmative action with regard to workers' compensation claimants. While I disagree with the court's interpretation, I acknowledge that the court has stated that at a minimum:
. . . [W]when an employee who has suffered a compensable injury attempts to re-enter the work force the employer must attempt to facilitate the re-entry into the work force by offering additional training to the employee, if needed, and re-classification of positions, if necessary.
It now appears as if preferential consideration must be given to claimants to fill job vacancies even if the claimants do not qualify for such positions. Torrey now dictates employers to change their procedures used to fill job vacancies. If a lesser qualified claimant applies for a job vacancy, must the employer forgo the best interest of the employer to place the claimant in that position? Just how far is this to go? If a general laborer injures his back and applies for a job in human resources because the job description fits within his medical restrictions must the employer place the claimant in that position although claimant can neither read nor write proficiently and does not possess the necessary secretarial and office skills even when a more qualified person with years of experience in human resources applies for the same position? While the "more qualified" reasoning may be subjective, qualifications do include objective reasoning as well. I find that it is still valid reasoning and reasonable cause to refuse to hire a claimant and place the claimant in a job for which claimant simply is not qualified even with some re-training.
Furthermore, I cannot find that the respondent unreasonably refused to return to the claimant to work. On May 25, 1995, Dr. Ward stated that the claimant could return to work with a ten pound lifting restriction. Claimant argues that since Dr. Ward did not place a restriction upon the claimant in his June 2, 1995 correspondence and June 26, 1995 correspondence that the 1995 lifting restriction set forth in Dr. Ward's May 25, 1995 correspondence had been lifted and superseded. However, I cannot read Dr. Ward's reports as repealing claimant's lifting restriction. Dr. Ward placed a ten pound restriction upon the claimant on May 25, 1995 and there no evidence that he ever rescinded this restriction. Claimant's functional capacity evaluation which was performed in August of 1995 states that claimant's maximum lifting ability was 25 pounds. Claimant acknowledged during the hearing that her work with Kimberly-Clark required her to lift at least 40 pounds. Obviously, claimant's lifting restrictions prevented her from lifting the amounts required for her job. Moreover, claimant testified that her job as a team technician on the production line, there were at least four different functions which she could not perform due to her physical condition. Consequently, it is my opinion that respondent had reasonable cause to refuse to return the claimant to her position as a team technician.
Even with re-training and re-classification, claimant cannot overcome the fact that Dr. Ward placed a ten pound (10) lifting restriction upon claimant. The work for which claimant applied at Kimberly-Clark required her to lift at least forty (40) pounds. Re-training and re-classification cannot overcome this lifting restriction.
With regard to the temporary positions for which claimant applied, I still find that respondent had reasonable cause to refuse to place claimant in these positions. While claimant may have been re-trained or re-classified to fill the temporary positions of receptionist or lab tech, claimant failed to show by a preponderance of the evidence that the jobs of receptionist and lab technician fell within her physical limitations. It is not respondent's burden to prove the negative. Instead, if claimant contends she should have been hired in these positions, it was her burden to show that she was physically capable of performing these jobs. This includes proving by a preponderance of the evidence that her physical restrictions met with the job description for these positions. Claimant did not do this. Clearly, these are objective criteria for the jobs. Claimant did not overcome them.
Therefore, I respectfully dissent from the majority opinion.
MIKE WILSON, Commissioner