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In Belcher v. HolidayInn, 49 Ark. App. 64, ___ S.W.2d ___ (1995), the Court suggested that Nibco, Inc. v. Metcalf Daniels, supra might be instructive in determining the meaning of the term "misconduct" as used in Ark. Code Ann. § 11-9-522.
Summary of this case from Watkins v. Rockline IndustriesOpinion
CA 94-469
Opinion delivered April 5, 1995
1. ADMINISTRATIVE LAW PROCEDURE — COMMISSION'S DETERMINATION PURPORTEDLY BASED ON A DE NOVO REVIEW OF THE RECORD — CONCLUSORY LANGUAGE WAS INSUFFICIENT TO CONSTITUTE FINDINGS OF FACT. — Where, in making its determination, the Commission stated it was based "upon a subsequent de novo review of the record," but it made no reference to any evidence upon which it was based, the findings were in conclusory language and in no way constituted sufficient findings of fact. 2. WORKERS' COMPENSATION — COMMISSION REQUIRED TO FIND AS FACTS THE BASIC COMPONENT ELEMENTS UPON WHICH ITS CONCLUSION WAS BASED — CASE REMANDED FOR PROPER FINDINGS OF FACT. — The commission is required to find as facts the basic component elements on which its conclusion is based, and cases lacking this specificity will be remanded for a decision based upon a specific finding; in its first decision here, the Commission said "[b]ut for the claimant's conduct, she would still be working for the respondent," but made no finding of fact in that opinion to support its conclusion; the appellate court could not say as a matter of law that all "conduct" was "misconduct in connection with the work" as that term is used in Ark. Code Ann. § 11-9-522(c)(2) (1987); the matter was remanded for a decision based upon specific findings.
Appeal from the Arkansas Workers' Compensation Commission; reversed and remanded.
Walker Law Firm, by: Eddie H. Walker and William J. Kropp, III, for appellant.
Jones, Gilbreath, Jackson Moll, by: Charles R. Garner, for appellee.
This is the second appeal in this workers' compensation case. Appellant, Sharon Belcher, sustained a work-related back injury on September 11, 1987, which was accepted by the employer as compensable, and appellant received medical benefits plus a rating of five percent for a permanent partial impairment. Appellant was released and returned to work for Holiday Inn in March 1988. She was terminated in July 1989 for reasons unrelated to her injury, and she subsequently obtained employment with Brownwood Life Care Center where she worked approximately eight months.
Appellant then required additional treatment for her back injury and filed a claim for additional medical benefits, for physical impairment equal to eight percent to the body as a whole, and benefits for loss of wage earning capacity. The Workers' Compensation Commission found appellant was entitled to the additional medical benefits and to the physical impairment of eight percent; however, it denied wage loss disability, in any amount, holding that Ark. Code Ann. § 11-9-522(b) (1987) barred her from receiving benefits for loss of wage earning capacity. That section provides in part that a person who has returned to work at wages equal to or greater than the person's average weekly wage at the time of the accident, is not entitled to permanent partial disability benefits in excess of the percentage of permanent physical impairment established by the medical evidence.
On appeal the Arkansas Court of Appeals reversed and held that Ark. Code Ann. § 11-9-522(b) (1987) "precludes a claim for wage loss benefits as a matter of law only during such time as the claimant has returned to work, obtained other employment, or has a bona fide and reasonably obtainable offer to be employed at wages equal to or greater than her average weekly wage at the time of the accident." Therefore, we remanded for the Commission to reconsider appellant's entitlement to wage loss disability benefits. See Belcher v. Holiday Inn, 43 Ark. App. 157, 868 S.W.2d 87 (1993).
On remand the Commission again held that appellant was not entitled to any wage loss disability benefits. This time it based its decision on Ark. Code Ann. § 11-9-522(c)(2) (1987), which provides:
(2) Included in the stated intent of this section is to enable an employer to reduce or diminish payments of benefits for a functional disability, disability in excess of permanent physical impairment, which, in fact, no longer exists, or exists because of discharge for misconduct in connection with the work, or because the employee left his work voluntarily and without good cause connected with the work.
In its opinion the Commission stated that appellant was "terminated on July 20, 1989, for misconduct. Claimant then obtained employment at the Brownwood Life Care Center. Claimant worked at Brownwood for approximately eight months before voluntarily terminating her employment."
In making this determination, the Commission stated it was based "upon a subsequent de novo review of the record," but it made no reference to any evidence upon which it was based. The findings are in conclusory language and in no way constitute sufficient findings of fact. In Cagle Fabricating Steel, Inc., 309 Ark. 365, 369, 830 S.W.2d 857, 859 (1992), the court said the Commission "was required to find as facts the basic component elements on which its conclusion was based," and that case was remanded to the Commission for "a new decision based upon a specific finding." Moreover, in its first decision in the present case, the Commission said "[b]ut for the claimant's conduct, she would still be working for the respondent," but made no finding of fact in that opinion to support its conclusion. Obviously we cannot say as a matter of law that all "conduct" is "misconduct in connection with the work" as that term is used in Ark. Code Ann. § 11-9-522(c)(2) (1987).
Because we must remand this matter to the Commission for a new determination based upon specific findings of fact, we briefly give some guidance in the law that may be involved. On the issue of misconduct in connection with work, see Nibco, Inc. v. Metcalf Daniels, 1 Ark. App. 114, 613 S.W.2d 612 (1981), and concerning leaving work voluntarily, see JB Drilling Co. v. Lawrence, 45 Ark. App. 157, 873 S.W.2d 817 (1994).
Reversed and remanded for proceedings consistent with this opinion.
ROBBINS and ROGERS, JJ., agree.