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BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION
CLAIM NO. G405063
JOHN C. BELT, Employee CLAIMANT
CITY OF FORT SMITH, Employer RESPONDENT
CENTRAL ADJUSTMENT COMPANY, Carrier RESPONDENT
OPINION FILED AUGUST 12, 2015
Hearing before ADMINISTRATIVE LAW JUDGE ERIC PAUL WELLS in Fort Smith,Sebastian County, Arkansas.
Claimant represented by EDDIE H. WALKER, Attorney, Fort Smith, Arkansas.
Respondents represented by DOUGLAS M. CARSON, Attorney, Fort Smith, Arkansas.
STATEMENT OF THE CASE
On May 14, 2015, the above captioned claim came on for a hearing at Fort Smith,
Arkansas. A pre-hearing conference was conducted on March 4, 2015, and a pre-hearing
order was filed on March 5, 2015. A copy of the pre-hearing order has been marked
Commission's Exhibit No. 1 and made a part of the record without objection.
At the pre-hearing conference the parties agreed to the following stipulations:
1. The Arkansas Workers' Compensation Commission has jurisdiction of this claim.
2. On all relevant dates, the relationship of employee-employer-carrier existed
between the parties.
3. The claimant sustained a compensable injury to his neck and left shoulder on
November 19, 2013.
4. The claimant is entitled to a weekly compensation rate of $382.00 for temporary
total disability and $287.00 for permanent partial disability.
5. The claimant’s healing period ended on November 26, 2014.
6. Respondents have accepted liability for and are paying benefits for a 9%
impairment rating to the body as a whole.
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By agreement of the parties the issues to litigate are limited to the following:
1. Whether claimant is entitled to benefits pursuant to A.C.A. §11-9-505(a)(1).
2. Whether claimant is entitled to benefits for wage loss disability.
3. Whether claimant’s attorney is entitled to an attorney’s fee.
The claimant's contentions are as follows:
“a. The claimant contends that the respondents provided himwork until he reached maximum medical improvement andthen failed to continue to provide him work although it is theclaimant’s belief that work within his restrictions is stillavailable.
The claimant contends that pursuant to A.C.A. §11-9-505(a)(1)he is entitled to an award because the respondents arerefusing to return him to work, without good cause, when thereis work available within his restrictions.
b. The claimant contends that he has sustained some loss ofearning capacity because of the effects of his job related injuryand that therefore he is entitled to wage loss disability.
c. The claimant contends that his attorney is entitled to anappropriate attorney’s fee.”
The respondents’ contentions are as follows:
“(a) Following claimant’s compensable injury he was given apermanent impairment rating of 9% to the body as a whole byDr. Luke Knox. This rating has been accepted and is beingpaid.
(b) Suitable employment within claimant’s restrictions as givenby Dr. Luke Knox was not available. Respondents could notoffer any non-light-duty work without confirmation that claimantin fact was capable of performing such physical tasks as wouldbe necessary to perform the essential job functions. Thus,respondent is not liable under Ark. Code Ann. §11-9-505(a)(1)for additional benefits set out in that section.
(c) The respondent’s termination of claimant’s employmentwas not ‘without cause’ and was not a ‘refusal’ to returnclaimant to work because claimant refused to undergo afunctional capacity evaluation which would allow respondent toassess his capabilities and attempt to find him ‘suitableemployment’ with respondent.
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(d) Claimant’s attorney is not entitled to an attorney’s fee forany award of permanent partial disability up to and including a9% permanent partial disability award.”
The claimant in this matter is a 48 year old male who suffered an admittedly
compensable injury to his left shoulder on November 19, 2013. The parties have stipulated
that the claimant’s healing period ended on November 26, 2014 and that the respondents
are responsible for payment of permanent partial disability benefits for a 9% impairment
rating to the body as a whole. The central issue in this matter is two-fold: (1) whether the
claimant is entitled to benefits pursuant to A.C.A. §11-9-505(a)(1), and (2) whether the
claimant is entitled to wage loss disability. I will first address the claimant’s entitlement to
A.C.A. §11-9-505(a)(1) benefits.
On November 26, 2014 the claimant was seen by Dr. Luke Knox at the Northwest
Arkansas Neurosurgery Clinic. On that date, Dr. Knox authored the following return to work
note:
“Mr. Belt is under my care and my [sic] return to work with thefollowing restrictions these should be considered permanent:
No excessive bending, stooping, no lifting over 30lbs. Noexcessive flexion/extension of the neck (looking up).”
Dr. Knox also authored a letter to the respondents on that same date. Following is the body
of that letter:
“I am in receipt of your correspondence dated 11/25/14 inreference to Mr. John Belt. I will enumerate your multiplequestions as follows:
Mr. Belt was seen in the Neurosurgery Clinic for follow-upevaluation on 11/26/14 after his evaluation this past August29'h. [sic] I note that, apparently, there was not a clinicsummary detailed at that time.
1. Objective findings on exam today include persistentweakness of his left upper extremity, primarily his deltoid,biceps, triceps, grip strength, and poor supination. Hissensation is, for the most part, normal. He has hypoactivereflexes in the upper extremities when compared to the lower.
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2. I have again reviewed his plain films and MRI scan. I havesignificant concerns about his ultimate recovery. I haverecommended that Mr. Belt consider surgical avenues,although he is so motivated to avoid surgery that he is inclinedto forego the possibility of surgery at this time, despite myrecommendations. He has completed his physical therapytreatments for the time-being.
3. He is one year status post injury (11/19/13). He hasreached that pont of maximum medical improvement.
4. Concerning his impairment rating, referring to the MRI scandated 01/08/14, he would qualify for a 6% permanent partialdisability to the body as a whole. Added to this would be 1%per level for a total of 9% permanent partial disability. This isderived from the AMA Guides to the Evaluation of PermanentImpairment, Fourth Edition, Page 113, Table 75-II, Section C,under the subheading of “cervical.” He would qualify for a 6%permanent partial disability to the body as a whole. Added tothis would be 1% per level, 3 through 7, for an added 3%, fora total of 9% permanent partial disability.
Currently, he is tolerating his restrictions. I strongly recommendthat he avoid any significant cervical extension/looking up. Iwould recommend that he not lift greater than 30 pounds andavoid excessive stooping, bending, lifting, etc. as he has notundergone a formal Functional Capacity Evaluation, it may beprudent to leave his limitations open-ended so that these canbe adjusted in the future, if needed.
I have significant concerns that Mr. Belt may very well requiresurgical endeavors at some point in the future, primarily fromprogressive neurologic deficit related to the severecompressive pathology. His current physical restrictions, Ibelieve, should be considered permanent.”
The respondent called Richard Jones as a witness in this matter. Mr. Jones is the
respondent’s Director of Human Resources. Mr. Jones gave the following testimony about
his understanding of the restrictions issued by Dr. Knox on November 26, 2014 in direct
examination testimony to the Commission as follows:
“Q Now, what limitations do you understand that Dr. Knoxplaced on the claimant on November 26th, 2014?
A So in the November 26th letter, received a day or twoafter, I believe. It's hard to remember exactly the date.There were some very specific permanent restrictionssince he'd reached maximum medical improvement. He couldn't lift over 30 pounds. Wasn't supposed to
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look overhead or up above. And there were somespecific words. I could read them, but essentially had todo with the cervical neck and looking up above. Nocontinuing bending, stooping, lifting. You know, it wasfairly restrictive for somebody that was doing essentiallya very labor-intensive job. In the letter, if we had actedon the restrictions at that point, I knew he couldn'tcontinue to do the job that was his regular job. But inthe absence -- or the words that Dr. Knox used, in theabsence of an FCE, I felt like it would help the cityunderstand exactly what his restrictions were, and,hence, give us an idea of whether we could ultimatelyfind a job that fit within those restrictions. If they weregoing to be as stated, then there was no place that Icould put him at that moment, because there were nojobs that met those restrictions.
Q On November 26th, or within a couple days thereafterwhen you got the information?
A That's right. So I asked my staff to set up an FCE tohelp me know, and to help the city know, what the restrictions were. Were they exactly what Dr. Knox saidor not, and if they were different, then it would havehelped us have an idea of what he could actually do.
Q If Dr. Knox's restrictions on November 26 of 2014 werethe final word, could the City of Fort Smith have put theclaimant back to work at that time, under thoserestrictions?
A No.
Q So the FCE was an effort to attempt to continuehis employment, or place him in a job that hecould perform within his medical restrictions?
A Correct, yes.
Q And when I say no job, I'm talking about aregular non-light duty job. Is that correct?
A That's right. A regular, permanent job that didn'thave any alterations to it.
Q What was your rationale in wanting to have theclaimant undergo an FCE after receiving theNovember 26th report?
A I was concerned that Dr. Knox used the wordsopen-ended, and used the words, he hadn'tgone through a formal FCE. So we didn't -- so
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he was making his best guess, as a physician,and those limitations were not going to allow usto put him back to work. So without somethingelse, that would have been the last day of hisemployment.
Q Did you continue the claimant's light dutyemployment after November 26?
A Yes, we did. So we left him continuing in thatcapacity up to the point of the scheduled FCE.”
The claimant in this matter never underwent an FCE. I note that an FCE was never
ordered by a doctor in relation to his admittedly compensable work injury, but instead was
required by the respondents as a condition of employment.
The claimant refused the FCE because of a requirement to sign a waiver of liability
that was a condition that was placed on the FCE by the physical therapist. Following is the
claimant’s testimony on direct examination about his refusal to sign a waiver:
“Q Now, at some point, were you requested toundergo what's called a Functional CapacityEvaluation?
A Yes, sir.
Q And did you show up for that evaluation?
A Yes, sir.
Q Did you have it? Did you undergo it?
A No, sir.
Q Why not?
A They wanted me to sign a liability saying theywasn't going to be responsible if they made meworse.
Q They wanted you to sign something saying thatthey wouldn't be responsible if they made youworse?
A Right.
Q And did you sign that?
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A No, sir.
Q Why not?
A Well, I hadn't ever heard anything like that. Imean, I've been to a few doctors, you know, andnobody said that, you know, we're going to treatyou, but we're not going to be responsible if wehurt you, you know. I mean, --
Q Has any medical facility ever asked you to signa document indicating that you accept the risk ofbeing treated, and that you release them if theymess you up?
A No, sir.
MR. CARSON: Objection. Relevancy.
THE COURT: Mr. Walker?
MR. WALKER: I was just asking the question,Judge.
THE COURT: I think it's relevant. Go ahead.
BY MR. WALKER:
Q I'm going to show you a document that is Page27 of Claimant's Exhibit 1, and it's titled,"Informed Consent for Functional CapacityEvaluation." Did you sign that document? Isthat your signature right there?
A Yes, sir.
Q So you agreed -- you gave them permission tosend the results of the evaluation to theinsurance company; is that right?
A Uh-huh.
Q Is that a yes?
A Yes, sir.
Q. And then below that, it says, "I agree toparticipate fully in the evaluation." Did you initialthat?
A Yes, sir.
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Q And then it says, "I agree to provide a full andcomplete medical history." Did you initial that?
A Yes, sir.
Q Now, the last thing on here says, "I accept therisk involved in this type of testing and wish toparticipate." Did you initial that?
A No, sir.
Q Why not?
A I thought it fell in the same category of that othersheet of paper that said that we're not going tobe responsible.
Q Okay. Now, when you say that other sheet ofpaper, was there a second sheet of paper?
A Yes, sir.
Q And what did that second sheet of paper ask youto do?
A I don't remember exactly word for word. I justknow that it said that they wasn't going to beresponsible if they made my injury worse.
Q Did you have any –
MR. CARSON: Your Honor, pardon me. I have to object at this point, under the best evidencerule. He is describing the contents of adocument that he purports to attributesignificance to, without having the document aspart of the record.
MR. WALKER: Judge, I anticipate that the respondents are going to claim that my client didnot sign an appropriate release, and if thatquestioning occurs, my client, of course, has gota right to describe what the release was. Now,if Mr. Carson is suggesting to you that he's notgoing to ask that question, then, certainly, I'llwithdraw the question.
MR. CARSON: I have no doubt that we're going to talk about the FCE during cross examination,and whatever the exhibits are are [sic] in therecord. I object to the claimant describing a
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release document that has not been made partof the record.
MR. WALKER: That's fine, Judge. I'll withdrawthe question, and I'll address it on redirect afterMr. Carson has opened the door.”
The claimant was also questioned on cross-examination about his refusal to sign
a waiver. That testimony follows:
“Q Now, who did you talk to -- I'm switching topicsnow. Concerning the FCE, who did you talk towith the city before you went to have the FCEdone?
A I believe it was Mr. Jones' assistant, WandaMcBride.
Q And did you know the purpose of the FCE was todetermine what job you could do with the city?
A I didn't until she told me.
Q Well, did he tell you in that conversation that'swhat it was for?
A Yeah. She told me.
Q I know there was some discussion a momentago about the possibility that there may havebeen some other paperwork, but --
MR. CARSON: Your Honor, may I approach the witness?
THE COURT: You may.
BY MR. CARSON:
Q But I'm looking at Page 27 of Mr. Walker'sexhibit package, the informed consent form. That is your signature where it says John Belt; isthat correct?
A Yes, sir.
Q And you did initial the two things that werethere?
A Yes, sir.
10G405063 - Belt
Q Now, I want to make clear for the judge, this handwriting that's in the margin, that's not your handwriting, is it?
A No, sir.
Q That's somebody from Cooper Clinic; is thatright?
A I suppose so.
Q Okay. But it's not yours?
A No, sir.
Q Okay. Now, this form also refers to acceptingthe risks involved in the type of testing. This iswhat -- or at least you refused to sign this formas well, whether or not there was another pieceof paper; is that right?
A Yes, sir.
Q Okay.
A But that handwriting wasn't on that paper when initialed that.
Q Sure. I have no problem with that. When youadvised the Cooper Clinic employee that youwere not going to sign the portion of this formthat says, "I accept the risks involved in this typeof testing and wish to participate," what did thatperson advise you?
A The first person was, I guess, the receptionist. She said, "Well, when you go back there andsee" -- I guess it was the physical therapist. Shesaid, "Just tell him what you told me."
Q All right. So you talked with the receptionist upfront about this?
A Yeah.
Q And you had that discussion with her?
A Yes.
Q And then you were sent back to see the physical therapist?
11G405063 - Belt
A Yes.
Q Was that person named Chris Honaker, or doyou know if that's correct or not?
A It could have been. I mean, I don't -- I don't remember.
Q All right. You don't know, for sure, who it was,but it was a physical therapist?
A I believe so.
Q Okay, and did you explain to that person that youwere unwilling to sign this form?
A Yes.
Q What was that person's response, the physical therapist's response, when you told him, as youdid the receptionist up front, that you were notgoing to sign off on that part of the form?
A I asked him if he knew my physical condition,and he said, "Yes. I have your file." And hesaid, "I can assure you, we're not going to startout with a hundred pounds." And I said, "Well, I"-- you know, "I just don't feel comfortable withthat." I mean, I've never had to sign anythinglike this, you know, to see a doctor, you know.
Q Was any person with the City of Fort Smithpresent with you during either of these twoconversations with the medical personnel you'vejust described?
A No, sir.
Q So you left without undergoing the FCE; is thatcorrect?
A Yes.”
On re-direct examination, the claimant was again asked about his refusal to sign the
liability waiver to receive an FCE and also discussed his beliefs about his ability to return
to work for the respondent as follows:
“Q Okay. Now, Mr. Carson was asking you aboutthis Functional Capacity Evaluation situation,and he asked you about a physical therapist that
12G405063 - Belt
he identified as possibly Chris Honaker. Youdon't know what his name is, but you talked tothe physical therapist; is that right?
A Yes, sir. I believe that's what he was.
Q And you indicated that you told the physicaltherapist that you had never signed anything likethis.
A Right.
Q What "like this" are you talking about?
A Like signing a liability saying that they wasn'tgoing to be responsible if they made me worse.
Q So that's what you refused to sign?
A Yes, sir.
Q And was that the document that I showed you, orwas that a second document?
A No, there was another document. That was theone with the initial, and I'd signed that top,saying that they could release my records.
Q Now, you underwent physical therapy during thecourse of your treatment, didn't you?
A Yes, sir. And I took one of them tests.
Q And that physical therapy was by Total Rehab,Inc.?
A Yes, sir.
Q Did they ask you to sign a waiver or a release?
A Not one time.
Q Have you ever refused to undergo physicaltherapy?
A No, sir.
Q Did you ever refuse to undergo an FCE?
A No, sir.
13G405063 - Belt
Q In fact, in the deposition -- Mr. Carson took yourdeposition on April the 29th of 2015, and in that deposition, you told him, under oath, that youwere refusing to sign a waiver in regard to anFCE. Is that right?
A Yes.
Q Are you still willing to undergo an FCE?
A Sure. Yes, sir.
Q Has the city ever offered to send you to anyother facility, once you told them that this placewhere Chris Honaker was, was asking you tosign a waiver or a release? Did they ever say,"Well, we'll send you to another facility"?
A No, sir.
Q If they would send you to a facility that does not require you to sign a waiver or release, are youwilling to go?
A Yes, sir.
Q Did you make that clear in your deposition on the2 of April?
A I believe I did.
Q As we sit here today, have they offered to sendyou anywhere else?
A No, sir.
Q Now, you said something about some kind ofreport from a physical therapist that showed thatyou could lift more than 50 pounds. What areyou talking about?
A The day before I went to the doctor in -- I believeit was March or -- no. November 26 of '14.
Q Okay.
A You know, and I was released from physicaltherapy. They give me a -- what do you call it? An FCA test? FCE? Their physical capacity?
Q They gave you some kind of test to see what youcould do?
14G405063 - Belt
A Yes. Yeah, and it was in that report. And I wastold that it was emailed to HR.
Q Don't tell me what you were told.
A Okay.
Q Have you actually seen the report?
A Yes, sir.
Q Did you physically deliver a copy of the report to human resources for the City of Fort Smith?
A No, sir.
Q Have you ever talked to anybody in humanresources for the City of Fort Smith regardingthat report?
A Yes.
Q Who did you talk to?
A Mr. Jones and Lindsey, the receptionist.
Q Tell me about your conversation with Mr. Jones.
A I understood that he said that if we'd haveknowed [sic] this earlier, you know, things mighthave been a little different.
Q Would have known what earlier?
A About this physical capacity report from Total Rehabilitation.
Q So you had a discussion with Mr. Jones aboutthe existence of this report from TotalRehabilitation?
A Yes, sir.
Q And that report indicated that you could lift more than 50 pounds?
A Yes, sir.
Q And what did Mr. Jones tell you?
15G405063 - Belt
A He just said if we'd have knowed [sic] about thisearlier -- and I understood that they did knowabout it earlier.
Q Well, assuming they didn't know about it earlier,once you all had this discussion, did he thenoffer you a job?
A No. He said, "You ought to be good to go now."
Q When was this conversation?
A It might have been the 27th, the day after I'dcome from Dr. Knox this last time, because Ididn't get in until late the 27 th.
Q The 27th of November of 2014?
A No. No.
Q The 27th of what?
A March. March 25th, when I went to the doctorthe last time.
Q So you went -- you're talking about after you gotthis thing from Dr. Knox dated March 25, 2015?
A Yes, sir.
Q So that's when you had the discussion about thereport from Total Rehab?
A Yes, sir.
Q And even though you had that discussion, andyou provided this March 25, 2015 report to HR atthe city, they still haven't offered you a job?
A No, sir.
Q Do you feel like you're able to perform all four of the jobs that you've applied for since March 25,2015?
A Yes, sir.
Q And you're qualified for them?
A Yes, sir.”
16G405063 - Belt
Mr. Jones, the Human Resources Director, was asked about jobs with the
respondent that the claimant had applied for after his termination. Mr. Jones was also
asked about the claimant’s refusal to sign a liability waiver for an FCE on direct
examination as follows:
“Q Let's move to the date of the FCE itself. Whatdid the claimant tell you when he came into youroffice?
A Well, my best recollection is, something justbasic like, so, there isn't something we can do towork out to continue his employment, and I said,no, in the absence of something different thanwhat the doctor provided us, as far asrestrictions go, that the answer is no. He's reached maximum medical improvement. Lightduty is not permanent forever. And I encouragedhim to at least review the positions that werecurrently open, and make application for thosethat he felt may fit within his restrictions, and wewould do everything we could to give him a fairopportunity for those jobs.
Q Was the job that he was in intended to be apermanent position?
A No. We do light duty across the entire city, in virtually all departments. Our goal always is totry to get the person back to work.
Q Mr. Jones, I'd like to review the jobs that he has applied for. Did any of the jobs that the claimant described applying for with the city involvepositions which would not require an FCE to beperformed before somebody could be placed inthat job?
A He has not applied for anything that does notrequire an FCE at this point.
Q And to make sure that we're clear, is that anFCE for this particular claimant, or would that bean FCE by any applicant for that job?
A That's a condition of employment. So post offer,the condition is, they have to be able tophysically meet the requirements of the job. Ifthey were to fail and not meet those
17G405063 - Belt
requirements, then we would rescind the offer, because they could not physically do the job.“
On cross-examination, Mr. Jones was asked about the availability of jobs within the
claimant’s restrictions as follows:
“Q Mr. Jones, this document, the March 25, 2015that we've been talking about, says, "Mr. Belt isunder my care and may return to full duty withno restrictions," and then the caveat, as youdescribed it, talks about looking up with hishead/neck movements. With that statement, are you telling us that the city does not have anyjobs available --
A Absolutely not.
Q -- that would fit within that?
A Absolutely not. Because there would be a lot ofthe jobs that he could do that were less laborintensive that likely wouldn't affect that. But forthe jobs he's applied for, the judgment wouldultimately be made post offer by going throughan FCE and making sure he met the requirements. So there is a possibility. I don'tknow that. I'm not a medical professional, andI'm not the one doing the FCE. But we dorequire -- for the jobs he's applied for, he wouldhave to go through that FCE, which meansChris has been set up to do this. He went outand actually went through the process tomeasure the job so that he knows what he'sactually measuring is valid and can be supportedsitting right here in the same situation. And if hewon't do it, and won't sign the release, then thereis no way we could get there. But let's assumehe gets the offer and he goes and they tell himhe's passed. Then he would get the job. But itwould be post offer. We don't do it prior to theoffer.
Q Now, Mr. Belt has testified that he has appliedfor four jobs since March 25, 2015 with the city,and that all of those jobs are within theserestrictions. So irrespective of the FCE, do youagree or disagree that those jobs are withinthese restrictions in this March 25 letter?
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A I would have to say possibly, because I don'tknow enough about the restrictions from his neckto make that judgment.
Q Well, you --
A We don't have a -- I mean, it doesn't specificallysay those words in the jobs. You know, workdemands and so forth. But it would indicate tome that there is still some question on whetheror not he could. But possibly.
Q Well, you talk about the FCE being a condition ofemployment. It is my understanding that if you'retalking about a condition of employment, youmake the job offer, --
A Post offer, correct.
Q -- and then the condition of employment appliespost offer. Is that --
A That's right. So we're not making any judgment.
Q Is that correct?
A That is absolutely right; yes, sir.
Q Has he been made a job offer?
A He has not as of this point.
Q Why not?
A At this point, he has not been -- and I'm going touse the word "most qualified." There have beenother individuals that have been selected forthose jobs who had direct experience in theexact same work. Roll off, and doing the samething on the same sized vehicle. So it was ajudgment call from that department, and I did notorder them, or direct them, that they had to offerhim the job. What we do is, we tell them theyhave to offer the job to the most qualified person. In the absence of doing that, then I getchallenged in some other areas, potentially, from a legal perspective. So we have to be fairabout our hiring practices. I promise, I haveencouraged them to give John an opportunity ifhe is the right person for the job. They've justhad other people that more closely fit the
19G405063 - Belt
experience of somebody doing the pick-up anddrop-off of sanitation services.
Q Well, if these other people are more qualified,then why is this FCE a big issue? And youstarted out earlier talking about his refusal to dothe FCE was what --
A Yeah. The FCE is only an issue as it related tohim being able to return to work back after theNovember 26th letter. At this point, the FCE isnot -- if ultimately he was made an offer andfollowed through with the requirement post offerand pre-beginning his employment, it wouldn't be a problem on my end. Like he --
Q So it's your testimony that everybody who hasbeen hired for these various jobs that he hasapplied for are more qualified that he is?
A In the view of the sanitation department, yes, sir.
Q When you say in the view of the sanitationdepartment, I don't --
A And so I'm going to caveat it by saying, when Iback check this -- in other words, because I don'tfollow the hiring of every last employee. Theyhave to meet the minimum qualifications. Butthe department has the expertise to decide, youknow, who has driven a roll off truck. Who hasdriven a sanitation vehicle. Who has operatedmachinery at the level of, you know, the landfill.And if you're familiar with the landfill, you'retalking about, you know, something that fits inthis room, practically the whole room. They'regiant machines. They make the judgment aboutwho has that experience. And so thoseexperiences are -- I'm not sitting there saying, "Okay. You can't interview this person, and youcan interview this person." They come through. They evaluate and make the judgment aboutwho they hire, based on who the applicants areand what their experience in. And they're tellingme, because I put them on the spot, that theyhave been able to hire people who have moreexperience directly related to vehicles of the sizeand nature that they drive in sanitation, whereas,John has not quite the same level of experiencewith trucks in the sanitation area. That simple.
Q So he's qualified for the jobs, but just not themost qualified?
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A That's correct, sir, yes.
Q Okay. And do you have any input in that decision making process, or is it totally up to thedepartment head?
A Only in that they can't hire somebody thatdoesn't meet the minimum qualifications. So myemployee who monitors hiring makes sure thatthey don't talk to anybody who doesn't meetthose minimum qualifications. But after that, theymake that judgment for themselves. I do not.(Emphasis added)
Q Has Mr. Belt been offered an interview for any ofthose jobs?
A He did get interviewed, I think, after his firstrestrictions and prior to this March change in his restrictions. And I'd have to go back and look,but I think that's correct.
Q Well, what about after the March 25 letter where–
A I do not believe he has been subsequentlyinterviewed, no, sir.
Q And how does that work? I mean, you talk aboutpeople having minimum requirements. If youmeet the minimum requirements, do youautomatically get an interview or not?
A Not necessarily. Sometimes we have as manyas 50 or 80 people apply for one job. So asthey're going through the applicant process,they're going to pick what they believe are thosepeople that most closely match the job requirements. And if I've driven a sanitationvehicle versus driving an over-the-road truck, forinstance, they're likely going to talk with theperson who has actually driven a similarlysituated vehicle first.....”
Following are two portions of A.C.A. §11-9-505 that are relevant to the present
matter:
“A.C.A. §11-9-505(a)(1) Any employer who without reasonablecause refuses to return an employee who is injured in thecourse of employment to work, where suitable employment isavailable within the employee’s physical and mental limitations,
21G405063 - Belt
upon order of the Workers’ Compensation Commission, andin addition to other benefits, shall be liable to pay to theemployee the difference between benefits received and theaverage weekly wages lost during the period of refusal, for aperiod not exceeding one (1) year.”
“A.C.A. §11-9-505(d) The purpose and intent of this section isto place an emphasis on returning the injured worker to work,while still allowing and providing for vocational rehabilitationprograms when determined appropriate by the Commission.”
The present case is very similar to an Arkansas Court of Appeals case: Torrey v.
City of Ft. Smith, 55 Ark. App 226 (1996). In that case the Court of Appeals made it clear
that the hiring of a more qualified candidate was not reasonable cause for not returning an
injured employee to work. In this case, the respondent failed to return the claimant to work,
instead choosing to hire a more qualified candidate. That is clearly shown through the
testimony of the respondent’s own Human Resources Director. Employment was available
with the respondent that would have been within the claimant’s permanent restrictions
issued by his treating physician Dr. Knox. The claimant requested employment with the
respondent on at least four occasions. However, the claimant was not returned to work by
the respondent on any of those occasions. The claimant has proven by a preponderance
of the evidence that he is entitled to the benef its found in A.C.A. §11-9-505(a)(1).
The claimant in this matter has also asked the Commission to consider his
entitlement to wage loss disability. In order to determine that the claimant is entitled to
wage loss disability, we will look at factors including the claimant’s age, level of education,
willingness to work, work history and permanent limitations that the claimant has suffered
as a result of his compensable injuries. The claimant is forty-eight years of age and did not
complete the tenth grade of high school. The claimant’s work history seems to center
around general labor and heavy equipment operation. The final return to work document
found at Respondent’s Exhibit 1, Page 15 states: “Mr. Belt is under my care and may return
to work full duty with no restrictions. He should avoid any excessive looking up head/neck
movements.” That return to work note is signed by Dr. Luke Knox. The parties have also
22G405063 - Belt
agreed that the claimant suffered an impairment rating of 9% to the body as a whole as a
result of his compensable injury. It is clear from the claimant’s multiple efforts to return to
work for the respondent that his willingness to work is high.
After review of the medical records and the facts in this matter, I find that the
claimant is entitled to wage loss disability in an amount that would equal 5% to the body
as a whole. The claimant has been able to remove some of the initial permanent
restrictions that were placed on him and is now left with only the restriction of head/neck
movement. However, the testimony was clear that there are jobs that he is unable to do
now that he once did, thus making the available job pool for the claimant smaller.
From a review of the record as a whole, to include medical reports, documents, and
other matters properly before the Commission, and having had an opportunity to hear the
testimony of the witnesses and to observe their demeanor, the following findings of fact
and conclusions of law are made in accordance with A.C.A. §11-9-704:
FINDINGS OF FACT & CONCLUSIONS OF LAW
1. The stipulations agreed to by the parties at the pre-hearing conference conducted
on March 4, 2015, and contained in a pre-hearing order filed March 5, 2015, are hereby
accepted as fact.
2. That the claimant has proven by a preponderance of the evidence that he is
entitled to benefits under A.C.A. §11-9-505(a)(1). Those benefits shall be calculated from
the date the claimant first made employment application with the respondent and the
respondent refused to place the claimant back to work and instead chose a more qualified
candidate.
3. That the claimant has proven by a preponderance of the evidence that he is
entitled to wage loss disability in an amount that would be equal to a whole body
impairment rating of 5%.
4. That the claimant’s attorney is entitled to an attorney’s fee.
23G405063 - Belt
ORDER
That the respondents shall pay benefits to the claimant found in A.C.A. §11-9-
505(a)(1). That the respondents shall pay the claimant wage loss disability benefits in an
amount that would be equal to a whole body impairment of 5%.
The respondents shall pay to the claimant's attorney the maximum statutory
attorney's fee on the benefits awarded herein, with one half of said attorney's fee to be paid
by the respondents in addition to such benefits and one half of said attorney's fee to be
withheld by the respondents from such benefits pursuant to A.C.A. §11-9-715.
All benefits herein awarded which have heretofore accrued are payable in a lump
sum without discount.
This award shall bear the maximum legal rate of interest until paid.
IT IS SO ORDERED.
ERIC PAUL WELLS
ADMINISTRATIVE LAW JUDGE
