Hope Sch. Dist. v. Wilson, CA 10–1069.

• Decision Date: 16 March 2011
• Docket Number: No. CA 10–1069.,CA 10–1069.
• Citation: 382 S.W.3d 782,2011 Ark. App. 219
• Parties: HOPE SCHOOL DISTRICT and Risk Management Resources, Appellants v. Charles E. WILSON, Appellee.
• Court: Arkansas Court of Appeals

2011 Ark. App. 219

382 S.W.3d 782

HOPE SCHOOL DISTRICT and Risk Management Resources, Appellants

v.Charles E. WILSON, Appellee.

No. CA 10–1069.

Court of Appeals of Arkansas.

March 16, 2011.

Jarrod S. Parrish, Little Rock, for appellants.

Gregory Ross Giles, Texarkana, for appellee.

DOUG MARTIN, Judge.

[Ark. App. 1]Appellant Hope School District (the District) appeals a decision of the Workers' Compensation Commission awarding permanent partial disability benefits and a 2% wage-loss benefit to appellee Charles Wilson. Wilson cross-appeals the Commission's denial of his request for additional temporary total disability benefits and his request for more than a 2% wage-loss benefit. We find no error and affirm.

Wilson worked as a custodian for the District and suffered an admittedly compensable injury to his left shoulder on August 17, 2007. The District paid temporary total disability benefits through November 30, 2007. Wilson returned to work on February 19, 2008, and was given a revised schedule of work duties to accommodate his injury. On April 30, 2008, Wilson's supervisor, Maurice Henry, asked Wilson if he planned to return to work for the [Ark. App. 2]District the following school year. In response, Wilson signed a “letter of intention” indicating that he did not want to be employed as a custodian for the District during the 2008–2009 school year. Wilson's employment with the District ended in August 2008.

Wilson's shoulder injury was treated by Dr. Young, an orthopedic physician. In addition, Dr. Holladay examined Wilson in April 2009 and assigned him an 11% upper extremity impairment that was converted into “a 7% whole-person impairment as residual from the work-related injury.”

Wilson subsequently sought additional temporary total disability benefits for work missed from December 1, 2007, to February 19, 2008. In addition, he sought permanent partial disability benefits associated with the 7% permanent impairment rating he was assigned, wage-loss disability benefits, and additional medical treatment.

After a hearing on December 3, 2009, the administrative law judge (ALJ) entered an opinion on February 25, 2010, denying Wilson's request for additional temporary total disability benefits; finding Wilson entitled to permanent partial disability benefits and awarding him benefits for a 7% anatomical impairment rating to the body as a whole; finding that Wilson's claim for wage-loss benefits was not barred by Arkansas Code Annotated section 11–9–522(b); and finding that Wilson's request for additional medical treatment was reasonable. The District appealed the ALJ's findings, and the Commission adopted and affirmed the ALJ's decision in an opinion and order entered August 13, 2010. The District filed a timely notice of appeal, and Wilson filed a timely notice of cross-appeal.

[Ark. App. 3]Standard of Review

Typically, on appeal to this court, we review only the decision of the Commission, not that of the ALJ. Daniels v. Affiliated Foods Sw., 70 Ark.App. 319, 17 S.W.3d 817 (2000). In this case, the Commission affirmed and adopted the ALJ's opinion as its own, which it is permitted to do under Arkansas law. See Death & Permanent Total Disability Trust Fund v. Branum, 82 Ark.App. 338, 107 S.W.3d 876 (2003). Moreover, in so doing, the Commission makes the ALJ's findings and conclusions the findings and conclusions of the Commission. See Branum, supra. Therefore, for purposes of our review, we consider both the ALJ's order and the Commission's majority order.

In appeals involving claims for workers' compensation, our court views the evidence in the light most favorable to the Commission's decision and affirms the decision if it is supported by substantial evidence. Galloway v. Tyson Foods, Inc., 2010 Ark. App. 610, at 5, 378 S.W.3d 210, 213–14. Substantial evidence exists if reasonable minds could reach the Commission's conclusion. Galloway, 2010 Ark.App. 610, at 5, 378 S.W.3d at 213–14. The issue is not whether the appellate court might have reached a different result from the Commission; if reasonable minds could reach the result found by the Commission, the appellate court must affirm. Id. Where the Commission denies a claim because of the claimant's failure to meet his burden of proof, the substantial-evidence standard of review requires that we affirm the Commission's decision if its opinion displays a substantial basis for the denial of relief. Id.

[Ark. App. 4]Questions concerning the credibility of witnesses and the weight to be given to their testimony are within the exclusive province of the Commission, and when there are contradictions in the evidence, it is within the Commission's province to reconcile conflicting evidence and to determine the true facts. Neal v. Sparks Reg'l Med. Ctr., 104 Ark.App. 97, 102, 289 S.W.3d 163, 167 (2008). The Commission is not required to believe the testimony of the claimant or any other witnesses but may accept and translate into findings of fact only those portions of the testimony that it deems worthy of belief. Id.

Direct Appeal

In its first argument on direct appeal, the District argues that the Commission erred in finding that Arkansas Code Annotated sections 11–9–522(b) and 11–9–526 did not bar Wilson's wage-loss claim.¹ Permanent benefits shall be awarded only upon a determination that the compensable injury was the major cause of the disability or impairment. Ark.Code Ann. § 11–9–102(4)(F)(ii)(a) (Supp.2009). In order to receive wage-loss-disability benefits in excess of one's permanent physical impairment, a claimant first must prove by a preponderance of the evidence that he sustained permanent physical impairment as a result of a compensable injury. Bio–Tech Pharmacal, Inc. v. Blouin, 2010 Ark. App. 714, 379 S.W.3d 594;Taggart v. Mid Am. Packaging, 2009 Ark. App. 335, at 4, 308 S.W.3d 643, 646. The wage-loss factor is the extent to which a compensable injury has affected the claimant's ability [Ark. App. 5]to earn a livelihood. Taggart, 2009 Ark. App. 335, at 5, 308 S.W.3d at 647. In considering claims for permanent partial disability benefits in excess of the employee's percentage of permanent physical impairment, 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 or her future earning capacity. Ark.Code Ann. § 11–9–522(b)(1) (Repl.2002).

Section 11–9–522(b)(2) goes on, however, to provide that

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 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 employer bears the burden of proving the employee's receipt of a bona fide offer to be employed. Ark.Code Ann. § 11–9–522(c)(1).

The District argues that the Commission erred in finding that Wilson did not have a “bona fide and reasonably obtainable offer to be employed” by the District. As mentioned above, Wilson informed the District at the end of April 2008 that he did not want to be employed by the District for the 2008–2009 school year. In addition, the District offered the testimony of Maurice Henry, the District's Co–Safety and Health/Custodial Supervisor, and Kathryn Montgomery, the District's Co–Safety and Health/Workers' Compensation Coordinator. When asked whether, had Wilson not resigned in 2008, he could still be [Ark. App. 6]working for the District, Henry answered, “He would have been recommended.” (Emphasis added.) Similarly, when asked whether the District was going to let Wilson continue working in the fall semester of 2008 if he had not retired, Montgomery stated, “He would have been recommended like the rest of the staff.” (Emphasis added.)

On the basis of this testimony, the ALJ and the Commission made the following findings:

The evidence establishes that the claimant was employed on an annual school-year basis. The claimant stopped working in August of 2008 when his 2007–2008 contract ended. In Belcher v. Holiday Inn, 43 Ark.App. 157, 868 S.W.2d 87 (1993), the Court explained that “11–9–522(b) 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.” Consequently, I find that the claimant's employment at Hope School District was no longer a bar to benefits for wage loss once that employment ended at the end of the 2007–2008 contract in August of 2008.

I also find that the preponderance of the evidence establishes that the claimant did not receive a bona fide offer of employment for any period after he last worked in August of 2008. To the contrary, both Mr. Henry and Ms. Montgomery indicated that had the claimant requested employment for the new school year beginning in August of 2008, he would have been recommended for employment. Clearly, a possible recommendation for employment is not the same as an offer of employment. The statutory bar requires an actual offer of employment. Cross v. Crawford County Memorial Hosp., 54 Ark.App. 130, 923 S.W.2d 886 (1996). No such actual offer was made in this case.

(Emphasis in original.)

This court has noted that there must be an actual offer of employment made by the employer to the employee. [Ark. App. 7]Cross v. Crawford County Mem'l Hosp., 54 Ark.App. 130, 135, 923 S.W.2d 886, 889 (1996) (citing Weyerhaeuser Co. v. McGinnis, 37 Ark.App. 91, 824 S.W.2d 406 (1992)). It is the employer's burden to prove that an actual, bona...