Opinion
CLAIM NO. E614065
OPINION FILED MAY 19, 1998
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE SCOTT HUNTER, Attorney at Law, Jonesboro, Arkansas.
Respondents represented by the HONORABLE W. TERRY SMITH, Attorney at Law, West Memphis, Arkansas.
Decision of Administrative Law Judge: Reversed.
OPINION AND ORDER
[2] The respondents appeal an opinion and order filed by the administrative law judge on September 23, 1997. In that opinion and order, the administrative law judge found that the respondents have failed to show by a preponderance of the evidence that an award of wage loss benefits in this case is barred by the provisions of Ark. Code Ann. § 11-9-522 (Supp. 1997). After conducting a de novo review of the entire record, we find that the decision of the administrative law judge must be reversed.Arkansas Code Annotated § 11-9-522 states in relevant part:
(b)(1) In considering claims for permanent partial disability benefits in excess of the employee's percentage of permanent physical impairments, the commission may take into account, in addition to the percentage of permanent physical impairment, such factors as the employee's age, education, work experience, and other matters reasonably expected to affect his future earning capacity.
(2) 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 a preponderance of the medical testimony and evidence.
(c)(1) The employer or his worker's compensation insurance carrier shall have the burden of proving the employee's employment, or the employee's receipt of a bona fide offer to be employed, at wages equal to or greater than his average weekly wage at the time of the accident.
(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.
As we interpret the requirement to establish a defense under Ark. Code Ann. § 11-9-522(c), we understand that the respondents have the burden of proving the following requirements: (1) that the claimant return to work after sustaining a compensable injury; (2) that the claimant made the same or greater wages after returning to work as the claimant was making at the time of the compensable injury; (3) the claimant voluntarily terminated the claimant's post-injury employment without good cause; (4) if, but for the voluntary termination, claimant would still be employed by the respondent. See also J.B. Drilling Co. v. Lawrence, 45 Ark. App. 157, 873 S.W.2d 817(1994). Compare Belcher v. Holiday Inn, 43 Ark. App. 157, 868 S.W.2d 87 (1993) (Application of Section 522(c) not at issue on appeal in Belcher).
In the present case, the record indicates that the claimant sustained an admittedly compensable injury on June 5, 1995. The claimant was diagnosed with a herniated disc at the C6-7 level of the spine, and the claimant underwent surgery in the form of a cervical discectomy and fusion performed by Dr. Gregory Ricca on August 24, 1995. Dr. Ricca assigned the claimant a 9% permanent physical impairment rating to the body as a whole as a result of the claimant's cervical injury and surgery, and Dr. Ricca returned the claimant to work on December 4, 1995, with the only restriction being no "working drill or screwdriver." The claimant's first job upon returning to work for the respondents was "waxing screws." The claimant worked in this capacity for approximately one month and then began to work in the office performing data entry on a computer, filing, and humidity testing in three drying rooms. The humidity testing operation was later removed from the claimant's job duties at the claimant's request. The claimant continued work in the office entering data on the computer and filing until July 1996 when the claimant was transferred to work in the "dampers" section. The claimant worked in this section for approximately three days and then requested to be returned to work in the office. The claimant was in fact returned to work in the office, and worked in that capacity until she voluntarily terminated her employment in late October of 1996. In addition, the claimant acknowledged in her testimony at the hearing that she was earning greater wages at the time she terminated her employment in October of 1996 than she was earning at the time of her compensable injury sustained in June of 1995. Consequently, we find that the respondents have established the first two requirements to establish this defense.
In addition, we see no basis to conclude from the claimant's testimony, or from the medical records submitted into evidence, that the claimant's medical condition has in any way degraded or has otherwise decreased her ability to work since the day she voluntarily terminated her employment in October of 1996. In our opinion, the greater weight of the evidence in this case also satisfies the fourth requirement cited above necessary for the respondents to establish a defense under Ark. Code Ann. § 11-9-522(c) based on the claimant's voluntary termination of her employment with the respondents.
To the extent that the claimant seems to assert that she had "good cause" for terminating her office job on the computer, we do not find this assertion persuasive for the following reasons. First, we note that the office job assigned to the claimant at the time of her voluntary termination appears to have been well within the physical restrictions imposed by her physicians. Second, although the claimant testified that working on the computer caused her such neck pain that she eventually had to quit, we note that she admitted that she took breaks at whatever frequency she deemed appropriate, that the employer never questioned her use of breaks, and we cannot find a single reference in the medical record where the claimant specifically indicated to a physician that she was operating a computer at work which caused neck pain. Moreover, we believe that if the claimant had in fact been experiencing significant neck pain caused by looking down while working on the computer as she asserted in her testimony, she would have discussed this alleged problem with her supervisor and/or her physician to determine whether a modification to her workstation would have reduced or eliminated this problem. Moreover, we are not persuaded by the claimant's uncorroborated testimony on the "good cause" issue in this case, particularly in light of her admission that the respondents tried her in several jobs in the plant before finally returning her to the office for light-duty computer work. Moreover, we find that the respondent returned the claimant to work at job duties well within her doctor's physical restrictions, and the greater weight of the evidence in the record indicates the claimant simply voluntarily terminated her employment without good cause. Consequently, we find that the respondents have also established the third requirement as well.
In reaching our decision, we note that the administrative law judge has correctly cited prior case law stating that an employer is required to establish by a preponderance of the evidence the existence of a continued offer of employment for the claimant to return to work at wages equal to those that she was earning at the time of her compensable injury at all times after the claimant quit in order to establish their defense under Section 522(b). See Belcher, supra. However, the respondents assert that their defense is based on the provisions of Section 522(c), and we note that the Court in Belcher did not consider the effect of section 522(c) in that case. Based on our review of the appropriate statutory provisions, and the analysis in Belcher and Lawrence, we are persuaded that the General Assembly did not intend a requirement that an employer must hold open a "continued" offer of re-employment indefinitely after an employee voluntarily terminates without good cause to establish a defense under Ark. Code Ann. § 11-9-522(c). Moreover, we see no basis to conclude from the plain language of Ark. Code Ann. § 11-9-522(c) that it was the intent of the legislature that employers are required to leave a terminated position unfilled (so as to establish a "continuing" offer of re-employment to the claimant who has voluntarily terminated her employment with the employer) in order for the respondents to establish the defense provided under Ark. Code Ann. § 11-9-522(c). Instead, as we interpret the fourth requirement indicated above, it is sufficient that the respondents establish that continued work for the respondents would have been available (and within the claimant's restrictions) had she not terminated her work without good cause, and it is not necessary that the respondents also show that the employer left the position unfilled, or by some other manner, provided the claimant a "continuing" offer of re-employment after she quit without good cause to establish a defense under Section 522(c).
Finally, we note that there is no assertion by the claimant in the present case that her physical condition degraded after her voluntary termination, which might have affected her continuing ability to work at the computer at some point after she quit. See generally, Lawrence, supra. Therefore, on this record, we find that the respondents have established each of the necessary requirements to establish a defense to wage loss benefits pursuant to Ark. Code Ann. § 11-9-522(c).
Therefore, after conducting a de novo review of the entire record, and for the reasons discussed herein, we find that the decision of the administrative law judge awarding the claimant a 15% impairment to her earning capacity in excess of the 9% permanent physical impairment established by the medical evidence must be reversed.
IT IS SO ORDERED.
DISSENTING OPINION
[14] I respectfully dissent from the majority opinion finding that respondents have demonstrated the requisite elements to establish a defense to wage loss disability benefits. Based on myde novo review of the record, I find that claimant is entitled to an award totaling 15% to the body as a whole. Therefore, I would affirm the decision of the Administrative Law Judge.Claimant sustained an admittedly compensable injury to her cervical spine. Following surgical repair, an impairment rating of 9% was assigned. Claimant was released to return to work on December 4, 1995. Her treating physician recommended that claimant not resume work with a drill or a screwdriver. After trying several jobs, claimant voluntarily quit her employment.
I simply cannot agree that claimant quit her job without good cause. In concluding that claimant failed to demonstrate good cause for her voluntary separation, the majority relies on several factors, including the ability of claimant to take breaks at her own discretion and the absence of any notations in the medical records regarding the difficulties she experienced while using a computer. Claimant reported to her physician that although sitting for long periods of time increased her pain, getting up and walking around only eased the discomfort slightly. This is reflected in a chart note dated September 11, 1996. If the minimal relief afforded claimant when she walked about the office is considered, the significance of providing her with frequent breaks is diminished.
It is true that there is no specific reference to claimant's computer use in the medical records. However, the medical records reflect a causal connection between claimant's job and her symptoms. In a letter to claimant's treating physician dated August 6, 1996, Dr. Ricca stated that: "She has been doing light duty work up until this past month when she did one week of full work. She says she cannot tolerate it." Dr. Ricca recommended a course of physical therapy, a TENS unit, and cervical injections. Then, in a chart note dated October 25, 1996, Dr. Brown indicated that he called claimant after being contacted by respondent employer. He stated that claimant quit her job because she believed her job duties were exacerbating her symptoms. Based on the foregoing, I am satisfied that claimant conveyed to her physicians the difficulty she experienced while performing her job duties.
Clearly, claimant experienced problems performing her job duties on her return from surgery, as evidenced by the reassignments. During the last several months of claimant's employment, she was taking pain medication and muscle relaxants on a daily basis. Additionally, physical therapy was prescribed. Claimant finally concluded that her job was aggravating her symptoms and she quit.
Good cause has been defined in unemployment compensation cases as meaning a cause connected with the work itself which is not arbitrary or capricious. Rowlett v. Director, 45 Ark. App. 99, 872 S.W.2d 83 (1994). Moreover, good cause is contingent upon the employee's good faith, which includes a true desire to work and be self-sufficient, as well as the reaction of the average worker.Garrett v. Director, 58 Ark. App. 7, 944 S.W.2d 865 (1997).
In my opinion, claimant's testimony is credible. It is within the Commission's exclusive province to determine the weight and credibility of witnesses. Whaley v. Hardee's, 51 Ark. App. 166, 912 S.W.2d 14 (1995). The record reflects that claimant quit her job with good cause connected with the work. She actually quit due to the permanent disability caused by her work-related injury. Accordingly, Ark. Code Ann. § 11-9-522 (c) (2) (Supp. 1997) is not a bar to the receipt of benefits for wage loss disability.
Claimant is 35 years of age and completed the tenth grade. Psychological testing demonstrated that claimant is functioning at the borderline range of intelligence. Claimant has no special training, and her transferrable skills are limited. Based on these factors, I would find that claimant sustained a wage loss disability of 15% to the body as a whole. I am aware that claimant initially returned to work at wages equal to her pre-injury earnings; however, this is not a permanent bar to an award for loss in wage earning capacity. Belcher v. Holiday Inn, 43 Ark. App. 157, 868 S.W.2d 87 (1993).
For the forgoing reasons, I respectfully dissent.
PAT WEST HUMPHREY, Commissioner