Calhoun v. Area Agency on Aging of Se. Ark.

• Decision Date: 11 March 2021
• Docket Number: No. CV-20-78,CV-20-78
• Citation: 2021 Ark. 56,618 S.W.3d 137
• Parties: Leroy CALHOUN, Appellant v. AREA AGENCY ON AGING OF SOUTHEAST ARKANSAS, Appellee
• Court: Arkansas Supreme Court

2021 Ark. 56

618 S.W.3d 137

Leroy CALHOUN, Appellant

v.AREA AGENCY ON AGING OF SOUTHEAST ARKANSAS, Appellee

No. CV-20-78

Supreme Court of Arkansas.

Opinion Delivered: March 11, 2021

Rainwater, Holt & Sexton, P.A., by: Kolton Jones, for appellant.

Barber Law Firm, PLLC, by: Karen H. McKinney, Little Rock, for appellees.

COURTNEY RAE HUDSON, Associate Justice

Appellant, Leroy Calhoun, appeals the Arkansas Workers’ Compensation Commission's decision that he was not entitled to a wage-loss award in addition to his impairment rating because appellee, Area Agency on Aging of Southeast Arkansas (AAA), extended to him a bona fide offer of employment. For reversal, Calhoun argues that (1) he proved by a preponderance of the evidence that he was entitled to the wage loss awarded by the administrative law judge, (2) no bona fide job offer was made, and (3) the job that AAA contemplated involved requirements that were outside of his abilities. Because substantial evidence does not support the Commission's conclusion that AAA offered Calhoun employment at wages equal to or greater than his average weekly wage at the time of his accident, we reverse and remand.

Calhoun was employed with AAA as part of its Meals on Wheels program, and his part-time duties included loading a van and delivering food to the elderly. Calhoun was driving a AAA van that overturned in an accident on January 13, 2016. He was not restrained at the time. Calhoun sustained a fractured neck at C1 through C3 with temporary paralysis, closed-head injury and laceration to the scalp

, blunt-chest trauma with a collapsed lung, and abdominal injuries. After a January 14, 2016 neck surgery, Calhoun underwent extensive treatment, including physical and occupational therapy. On February 1, 2017, approximately one year after Calhoun's neck surgery, Thomas S. Kiser, M.D., recommended standing, stretching, and walking activity. Dr. Kiser also noted that Calhoun was scheduled to see Dr. David Lupo on February 9. On February 21, Dr. Lupo performed a cystoscopy

, cystometrogram, electromyelogram, urethral pressure profile, flow rate testing, and bilateral retrograde pyelograms. After the procedures, Dr. Lupo diagnosed mild-urgency incontinence but found no evidence of significant neurogenic bladder. Dr. Lupo's notes reflect that he was not recommending treatment at that time. On February 27, Dr. Kiser released Calhoun at maximum medical improvement with a 24 percent permanent partial-impairment rating to the whole body. This rating is not disputed. Dr. Kiser noted that he "[e]ncouraged [Calhoun] to maintain active lifestyle and HEP." On March 1, Dr. Kiser added a note stating that "[a]ny return to work would have to consist of a sit down job at a chair or wheelchair level such as paperwork or driver dispatch/coordination job. He would not be able to carry objects or drive a vehicle." At the time of the accident, Calhoun's average weekly wage was $190.49, and he was not guaranteed any set hours. His biweekly pay amount ranged from $187.50 to $423.75.

On March 3, 2017, Lori Bloom of Risk Management Resources, AAA's insurance carrier, sent Calhoun's counsel a facsimile message that stated in its entirety:

I have attached Dr. Kiser's report from 2-27-17. Mr. Calhoun is at MMI and has a rating.

His employer can accommodate his restricted duty and has work available for him starting immediately.

Will you please notify Mr. Calhoun to contact his employer for his schedule.

I will initiate PPD benefits.

About three months later, on June 15, 2017, AAA sent Calhoun himself a letter signed by Twyla Jamerson, RN, stating in its entirety:

As you are aware, as of March 3, 2017, we have light duty work available for you within your restrictions specified by Dr. Kiser on March 1, 2017.

As we have not heard from you, please contact Twyla at Area Agency on Aging office and advise us of your decision to begin light duty work so we will know when to expect you. Please contact Twyla by June 21, 2017.

Calhoun testified at the hearing before the ALJ that he completed a year and a half of college, had work experience as a military police officer and as a welder and a coil winder, and that he had worked at the Pine Bluff arsenal. He also said that he had never worked at a sedentary job or in a supervisory capacity and that he still experienced incontinence issues. Calhoun stated that he did call and talk to Jamerson but conceded that he did not ask about any specifics of the job offered. Instead, Calhoun told her that he was in too much pain to work. Jamerson testified that Calhoun called her after he received the second letter. She recalled that the job available was as a greeter and that it was sedentary. She stated that she did not relay details about the job requirements because she wanted to get Calhoun's input on his abilities and "customize" the job to meet his abilities and disabilities. She offered no testimony as to the position's anticipated weekly wages.

In an opinion dated June 6, 2019, the ALJ found that Calhoun proved that he was entitled to a 60 percent wage-loss award in addition to his 24 percent anatomical-impairment rating. The ALJ determined that appellees made no bona fide job offer because the position and wages offered were not clear. AAA appealed both the wage-loss determination and the finding that it did not extend a bona fide offer of employment. The Commission reversed the ALJ's decision. The Commission did not address the validity of the ALJ's wage-loss determination but concluded that any wage-loss award was precluded because AAA made a bona fide and reasonably obtainable offer for Calhoun to be employed at wages equal to or greater than his average weekly wage at the time of the accident. Calhoun appealed, and the court of appeals reversed the Commission's decision and remanded for an award of benefits. Calhoun v. Area Agency on Aging of Se. Ark. , 2020 Ark. App. 366, 607 S.W.3d 176. We granted AAA's petition for review. When we grant a petition for review, we consider the appeal as though it had been originally filed in this court. Cedar Chem. Co. v. Knight , 372 Ark. 233, 273 S.W.3d 473 (2008).

When the Commission denies benefits because a claimant has failed to meet his or her burden of proof, the substantial-evidence standard of review requires that we affirm if the Commission's decision displays a substantial basis for the denial of relief. Frances v. Gaylord Container Corp. , 341 Ark. 527, 20 S.W.3d 280 (2000). We view the evidence in the light most favorable to the Commission's decision and affirm if it is supported by substantial evidence, which is evidence that a reasonable mind might accept as adequate to support a conclusion. Id. The issue on review is not whether the evidence would have supported a contrary finding or whether we might have reached a different result; we affirm if reasonable minds could reach the Commission's conclusion. White Cty. Judge v. Menser , 2020 Ark. 140, 597 S.W.3d 640. We defer to the Commission on issues involving credibility and the weight of the evidence. Id.

When there are contradictions in the evidence, it is within the Commission's province to reconcile conflicting evidence and to determine the true facts. Knight , 372 Ark. 233, 273 S.W.3d 473. The Commission is not required to believe the testimony of the claimant or any other witness but may accept and translate into findings of fact only those portions of the testimony that it deems worthy of belief. Patterson v. Ark. Dep't of Health , 343 Ark. 255, 33 S.W.3d 151 (2000).

This appeal concerns the construction and application of our workers’-compensation statutes. The question of the correct interpretation and application of an Arkansas statute is a question of law, which we decide de novo. Miller v. Enders , 2013 Ark. 23, 425 S.W.3d 723. We construe statutes so that no word is left void, superfluous, or insignificant; and meaning and effect are given to every word in the statute. Walther v. FLIS Enters., Inc. , 2018 Ark. 64, 540 S.W.3d 264. When we construe the workers’-compensation statutes, we must strictly construe them. Myers v. Yamato Kogyo Co., Ltd. , 2020 Ark. 135, 597 S.W.3d 613 ; Ark. Code Ann. § 11-9-704(c)(3) (Repl. 2012). The doctrine of strict construction requires this court to use the plain meaning of the language employed. Id. Strict construction means narrow construction and requires that nothing be taken as intended that is not clearly expressed. Hapney v. Rheem Mfg. Co. , 341 Ark. 548, 26 S.W.3d 771 (2000).

The question we must answer is whether substantial evidence supports the Commission's decision that Calhoun received a bona fide offer to be employed at a wage that met or exceeded his average weekly wage at the time of the accident. Calhoun first contends that the job offer was not "bona fide" because it was speculative and involved conditions precedent, and that AAA never communicated essential elements such as title, duties, and rate of pay. Next, Calhoun claims that the job contemplated required duties that exceeded his abilities because of his pain and his skills and experience.

We have said that an employee who sustains an injury may be entitled to wage-loss disability in addition to his or her anatomical loss. Glass v. Edens , 233 Ark. 786, 346 S.W.2d 685 (1961). The wage-loss factor is the extent to which a compensable injury has affected the claimant's ability to earn a livelihood. Wal-Mart Stores, Inc. v. Connell , 340 Ark. 475, 10 S.W.3d 882 (2000). When a claimant has an impairment rating to the body as a whole, the Commission has the authority to increase the disability rating based upon wage-loss factors. Sivixay v. Danaher Tool Grp. , 2009 Ark. App. 786, 359 S.W.3d 433. The Commission is charged with the duty of determining disability based upon a consideration of medical evidence and other factors affecting wage loss, such as the claimant's age, education, and work experience. Id. Disability is the "incapacity because of compensable injury...