Johnson County Regional Medical Center v. Lindsey ( 2014 )

Cite as 2014 Ark. App. 586
ARKANSAS COURT OF APPEALS
DIVISION I
No. CV-14-486
JOHNSON COUNTY REGIONAL
MEDICAL CENTER and RISK Opinion Delivered October 29, 2014
MANAGEMENT RESOURCES
APPELLANTS APPEAL FROM THE ARKANSAS
WORKERS’ COMPENSATION
V. COMMISSION
[NO. F705511]
FREDDIE DEAN LINDSEY
APPELLEE AFFIRMED
ROBIN F. WYNNE, Judge
Johnson County Regional Medical Center and Risk Management Resources appeal
from a decision of the Arkansas Workers’ Compensation Commission in which the
Commission awarded Freddie Dean Lindsey additional medical benefits, additional
temporary-total disability (TTD) benefits, and wage-loss disability benefits. Appellants argue
that appellee’s claim for wage-loss disability benefits is barred by statute. Alternatively, they
argue that the award of wage loss by the Commission is not supported by substantial evidence.
We affirm.
Appellee worked for Johnson County Regional Medical Center as a paramedic. He
injured his back on May 20, 2007, as he was attempting to lift a large patient from her bed.
An MRI revealed a right-sided disc herniation at L5–S1. He underwent a lumbar diskectomy
at L5–S1 in July 2007 that was performed by Dr. Arthur Johnson. Appellee experienced an
Cite as 2014 Ark. App. 586
exacerbation of his pain following the procedure and was treated with epidural steroid
injections. On May 14, 2008, Dr. Johnson stated in a letter that appellee had reached
maximum-medical improvement (MMI) and assigned a physical impairment rating of ten
percent to the body as a whole. Appellee underwent a functional capacity evaluation (FCE)
in June 2008, which revealed that he could perform medium-duty work. Dr. Johnson
returned appellee to work at medium duty. At the end of June 2008, the medical center
offered appellee a position as a phlebotomist. The duties for that position required continuous
standing and walking, lifting and carrying up to thirty pounds, and occasional pushing/pulling
up to forty pounds. Appellee refused the position, claiming that he could not perform the
duties necessary for the position. After that, the medical center made no further offers of
employment to appellee, and appellee did not contact the medical center to inquire about any
available positions.
In June 2008, appellee reported a significant increase in back pain while he was
attempting to pick plums off a tree. An MRI performed in July 2008 revealed scarring at the
site of appellee’s surgery. On July 22, 2008, Dr. Johnson recommended that appellee undergo
a discogram to determine whether appellee’s pain was “diskogenic in nature.” Appellee
underwent the discogram in November 2008. Dr. D. Luke Knox reported in January 2009
that the discogram provided appellee with 100% relief and that appellee was prepared to go
forward with fusion surgery. Dr. Knox performed the surgery on May 28, 2009. Appellee
initially reported improvement following the surgery, but reported in January 2010 that some
of his back and leg pain had redeveloped. Following another FCE in May 2010, Dr. Knox
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cleared appellee to a light classification of work. Dr. Knox also assessed a permanent-physical-
impairment rating of fourteen percent to the body as a whole.1 Due to ongoing issues with
pain, Dr. Knox performed a removal of the hardware from the fusion surgery in July 2011.
Appellee underwent a vocational assessment in September 2011, performed by Heather
Taylor, a vocational consultant. Based on the assessment, Ms. Taylor concluded that appellee
would have options to pursue employment in light-duty positions in the medical field. Ms.
Taylor’s report states that light duty requires occasional lifting of eleven to twenty pounds,
frequent lifting of one to twenty pounds, constant lifting of negligible weight, and frequent
standing or walking. Her report included a list of potential jobs, including medical records
clerk, medical assistant, medical billing, and medical coding.
The parties held a hearing before an administrative law judge (ALJ) regarding appellee’s
entitlement to additional medical benefits, additional TTD benefits, and wage-loss disability
benefits. Appellee testified that he was fifty-four years old, had a GED, and had completed
the paramedic program at the University of Arkansas for Medical Sciences. He worked as a
paramedic from 1984 until he was injured on May 20, 2007. He had not worked since his
injury. He testified that he was offered a phlebotomist position by the hospital, but
maintained that he could not have performed that position because he could not have done
the bending and stooping required for the position. The hospital had not offered him any
other positions. He had not done anything to look for work. Appellee testified that he could
1
Dr. Knox later added one percent to the rating for a total impairment rating of fifteen
percent.
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Cite as 2014 Ark. App. 586
sit up and stand for fifteen to twenty minutes. His back was still hurting as of the time of the
hearing. He had also had three heart attacks and a quadruple-bypass surgery since his injury.
Appellee testified that he was receiving approximately $1204 per month in social-security
disability benefits and had been receiving the benefits for three years.
Maribel Baker, the hospital’s assistant administrator of human resources, testified that
the phlebotomist position was the only one approved to be offered to appellee. Appellee
would have earned the same hourly rate in that position as he had as a paramedic. Appellee
was offered the position at the end of June 2008 and refused it without explanation. No other
positions were offered to appellee. Heather Taylor testified that she believed there were light-
duty and sedentary positions that appellee could perform in the medical field. She did not
know how many jobs would be available in his area or if any of the recommended positions
would be available at all.
The ALJ issued an opinion in which she found, among other things, that appellee was
not entitled to wage-loss disability benefits. Appeal was taken to the Commission, which
reversed the decision of the ALJ and awarded appellee wage-loss disability benefits in the
amount of thirty percent rated to the body as a whole. This appeal followed.
When reviewing a decision of the Commission, this court views the evidence and all
reasonable inferences deducible therefrom in the light most favorable to the Commission’s
findings and affirms the decision if it is supported by substantial evidence. Patton v. Jim Smith
Collision & Wrecker, 2010 Ark. App. 420. The issue is not whether we might have reached
a different result or whether the evidence would have supported a contrary finding; if
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reasonable minds could reach the Commission’s conclusion, we must affirm. Id.
Appellants’ first argument on appeal is that the Commission erred in holding that
wage-loss benefits can be awarded to an employee who refuses a bona fide offer of
employment. The Commission is authorized under Arkansas Code Annotated section 11-9-
522(b)(1) to consider claims for permanent-partial disability benefits in excess of the
employee’s percentage of permanent-physical impairment for unscheduled injuries. An injury
to the back is unscheduled. According to Arkansas Code Annotated section 11-9-522(b)(2)
(Repl. 2012),
[S]o long as an employee, subsequent to his or her 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 or her average weekly wage at the time
of the accident, he or she 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.
The Commission agreed with appellants that the offer of the phlebotomist position in 2008
constituted a bona fide job offer for the purposes of section 11-9-522(b)(2). However,
appellee’s injury necessitated additional surgeries after the job offer was made, and in 2010,
he was released to light-duty work. At that point, the duties of the phlebotomist position
were outside of his restrictions. No offer of employment was extended to appellee after he
was released to light duty.
The prohibition from receiving wage-loss benefits under section 11-9-522(b)(2)
remains in effect only so long as the conditions necessitating the bar exist. See Belcher v.
Holiday Inn, 43 Ark. App. 157, 868 S.W.2d 87 (1993). In this case, the bar was the bona fide
offer of employment. We have previously stated that an employee must be capable of
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performing the required job activities in order for the proposed position to be considered a
bona fide offer of employment. Wal-Mart Associates, Inc. v. Keys, 2012 Ark. App. 559, at 8,
423 S.W.3d 683, 688. When appellee’s condition worsened, and his duty classification
changed, the offer of employment as a phlebotomist was no longer a bona fide offer for the
purposes of section 11-9-522(b)(2). Despite appellants’ contention to the contrary, the
Commission did not find that they were required to extend numerous offers of employment.
There simply had to be a bona fide offer of employment to appellee for the bar to receiving
wage-loss benefits to remain in place. Likewise, appellants’ contention that the Commission
required them to extend an offer of employment after the final impairment rating was issued
is without merit, as the Commission’s decision only required them to extend a job offer that
fit within appellee’s restrictions in order for that position to constitute a bona fide offer of
employment. Once there was no longer a bona fide offer of employment on the table,
appellee was no longer barred from receiving wage-loss disability benefits under section 11-9-
522(b)(2).2 See JB Drilling Co. v. Lawrence, 45 Ark. App. 157, 873 S.W.2d 817 (holding that
a claimant was not barred from receiving wage-loss benefits, despite the fact that he
voluntarily quit his position with the employer, because his condition worsened, resulting in
his being unable to perform his previous job duties). Therefore, the Commission did not err
by finding that appellee was not barred from receiving wage-loss benefits.
Appellants’ second argument is that the Commission’s award of wage-loss disability
2
Appellants also assert that Arkansas Code Annotated section 11-9-526 would bar
benefits. The Commission did not rule on this argument, precluding consideration of it on
appeal. Qualserv Corp. v. Rich, 2011 Ark. App. 548.
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benefits is not supported by substantial evidence. The wage-loss factor is the extent to which
a compensable injury has affected the claimant’s ability to earn a livelihood. Drake v. Sheridan
Sch. Dist., 2013 Ark. App. 150. When determining wage-loss disability, the Commission
should consider, in addition to medical evidence, the claimant’s age, education, experience,
and other factors affecting wage loss. Id. Other factors may include, but are not limited to,
motivation to return to work, post-injury earnings, credibility, and demeanor. Id. A lack of
interest in pursuing employment impedes the assessment of the claimant’s loss of earning
capacity, although it is not a complete bar. Id. The Commission may use its own superior
knowledge of industrial demands, limitations, and requirements in conjunction with the
evidence to determine wage-loss disability. Id.
Here, the evidence before the Commission was that appellee was a fifty-four-year-old
man with a GED whose only additional education was a paramedic program. He had worked
as a paramedic for twenty-three years before he was injured. He was unable to perform his
duties as a paramedic after his injury. While the Commission noted that appellee did not
appear motivated to return to work, that is but one factor among several others for the
Commission to consider. Appellants also point to the transferrable skills they assert would
allow appellee to resume working. That evidence was before the Commission to consider
in determining the extent of appellee’s wage loss. The Commission weighed the wage-loss
factors and determined that appellee sustained wage-loss in the amount of thirty percent. We
hold that this finding is supported by substantial evidence of record.
Affirmed.
GLADWIN, C.J., and PITTMAN, J., agree.
Friday, Eldredge & Clark, LLP, by: Guy Alton Wade and Phillip M. Brick, Jr., for
appellants.
McKinnon Law Firm, by: Laura J. McKinnon and Kristopher A. Ramsfield, for appellee.
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