Parker v. Advanced Portable X-Ray, LLC

• Decision Date: 08 January 2014
• Docket Number: No. CV–13–495.,CV–13–495.
• Citation: 431 S.W.3d 374,2014 Ark. App. 11
• Court: Arkansas Court of Appeals
• Parties: Connie J. PARKER, Appellant v. ADVANCED PORTABLE X–RAY, LLC, Appellee.

2014 Ark. App. 11

431 S.W.3d 374

Connie J. PARKER, Appellant

v.ADVANCED PORTABLE X–RAY, LLC, Appellee.

No. CV–13–495.

Court of Appeals of Arkansas.

Jan. 8, 2014.

Tolley & Brooks, P.A., Fayetteville, by: Evelyn E. Brooks, for appellant.

Bassett Law Firm LLP, Fayetteville, by: Dale W. Brown, for appellee.

KENNETH S. HIXSON, Judge.

This is a workers' compensation case. Connie Parker worked for Advanced Portable X–Ray, LLC (“APX”), a mobile x-ray company. Parker's duties included driving the company van that carried the portable x-ray machine and providing x-ray services to patients. It is not disputed that on September 29, 2011, Parker was driving the company vehicle and providing employment services when she was rear-ended by another vehicle and sustained whiplash-type injuries. APX continued to pay Parker her regular wages while she was off work, but on January 26, 2012, prior to Parker being released to return to work, APX terminated Parker, and her last paycheck was for the pay period ending January 15, 2012.

On January 30, 2012, Parker sent a letter to the EEOC explaining her claim of wrongful termination in layman's terms. In March 2012, Parker filed a formal EEOC discrimination charge against APX, claiming that APX violated the Americans with Disabilities Act when it fired her. In April 2012, Parker and APX settled the EEOC charge in a confidential mediation session wherein APX agreed to pay Parker “lost wages” of $60,000, less applicable taxes, in exchange for Parker not instituting a lawsuit under the Americans with Disabilities Act and Parker agreeing to “resign.” On April 26, 2012, after withholding the appropriate taxes, APX wrote a check to Parker in the amount of $47,485 referencing a single pay period, the date of April 27, 2012. The following day, on April 27, 2012, Parker tendered a one-sentence “resignation” from her job with APX “in keeping with the terms of our settlement” of the EEOC charge.

In August 2012, Parker's workers' compensation claim proceeded to a hearing. Parker alleged she was entitled to medical benefits, temporary-total-disability (TTD) benefits, and attorney's fees.¹ APX controverted the claim and further alleged in the alternative that APX was entitled to a credit in the amount of $60,000 against any workers' compensation benefits as a result of the EEOC settlement proceeds. The Administrative Law Judge (ALJ) concluded that Parker had established the compensability of her injuries; that APX was responsible for medical treatment as reasonably necessary in connection with the compensable injuries; and that Parker was entitled to TTD benefits beginning January 16, 2012, until a date yet to be determined. However, the ALJ rejected APX's arguments (1) that Parker was “judicially estopped” from seeking TTD in light of her assertion in the EEOC documents that she was able to work, and (2) that APX was entitled to a statutory credit for the money it paid Parker in the EEOC mediation settlement.

APX appealed to the full Commission. After its de novo review, the Commission awarded Parker medical benefits that were reasonably related to treat her compensable thoracic and cervical injuries, TTD to a date yet to be determined, and her attorney's fees. The Commission declined to find Parker “judicially estopped” from claiming TTD. The Commission, in contrast to the ALJ, determined that APX was entitled to a credit for “lost wages” it sought pursuant to Ark.Code Ann. § 11–9–807(b) (Repl.2012). Parker filed a direct appeal, and APX filed a cross-appeal.

Parker contends on direct appeal that the Commission erred in awarding the $60,000 credit to APX. We reverse and remand on direct appeal. On cross-appeal, APX contends that the Commission erred in refusing to apply the doctrine of judicial estoppel to Parker's claim for TTD benefits, and, alternatively, that the Commission's decision to award her TTD benefits was not supported by substantial evidence. We affirm on cross-appeal.

We first address Parker's direct appeal. She contends that the Commission erred by awarding APX a credit pursuant to Ark.Code Ann. § 11–9–807 (Repl.2012), which states:

Credit for compensation or wages paid.

(a) If the employer has made advance payments for compensation, the employer shall be entitled to be reimbursed out of any unpaid installment or installments of compensation due.

(b) If the injured employee receives full wages during disability, he or she shall not be entitled to compensation during the period.

As relevant here, the Commission noted the following language of Parker and APX's EEOC mediation settlement agreement:

7. As evidence of a good faith effort to resolve EEOC Charge Number 493–2012–00562, [APX] offers and [Parker] accepts the following proposal of settlement or (the parties agree): A. [APX] agrees to pay [Parker] and her attorney the sum of Sixty Thousand Dollars ($60,000.00) as lost wages, in which all applicable federal, state and local taxes will be withheld on this sum....

(Emphasis added.)

The ALJ found that APX had not shown that both parties intended for the settlement to be considered advance payments for compensation under subsection (a) and therefore, refused to grant APX the $60,000 credit. The ALJ did not discuss the applicability of subsection (b) and whether the settlement proceeds were full wages received during her disability.

Before the Commission, whose decision we review, APX did not argue that it was entitled to a credit for advanced wages under subsection (a) as discussed by the ALJ; rather, APX instead argued that it was entitled to a credit for “full wages” received during disability under subsection (b). The Commission decided that APX was entitled to a $60,000 “credit for lump sum wages that it paid the claimant in April 2012” under subsection (b) as “full wages” received during disability. The Commission did not discuss the applicability of “advanced wages” under subsection (a).

Parker argues in this appeal that subsection (b) does not apply in this instance and that APX did not prove its entitlement to this statutory credit. We cannot address the merits of her argument at this time because the Commission failed to render adequate findings upon which we can perform appellate review.

In the Commission's “Opinion and Order” on this issue, the Commission recites the bare statute; states that APX is no longer seeking credit as “advance payments” under subsection (a); and repeats APX's request for a $60,000 credit in lost wages it paid to Parker. The Commission then simply concludes:

The Full Commission agrees. Ark.Code Ann. § 11–9–807(b) (Repl.2002) [sic] expressly provides that an injured employee shall not be entitled [to compensation] during the period that she receives full wages. Pursuant to a Mediation Settlement Agreement, the respondent-employer paid the claimant the sum of $60,000.00 in “lost wages, in which all applicable federal, state and local taxes will be withheld on this sum.” The Full Commission finds that the respondent-employer is entitled to a credit for lump sum wages that it paid the claimant in April 2012.

The Commission provides no explanation of how Parker's EEOC mediation settlement proceeds described therein as “lost wages” equates to “full wages” under § 11–9–807(b). We are required to strictly construe workers' compensation statutes, meaning that we are to narrowly construe the statute, nothing to be taken as intended unless clearly expressed. St. Edward Mercy Med. Ctr. v. Howard, 2012 Ark. App. 673, 424 S.W.3d 881.

The Commission is not an appellate court. Serrano v. Westrim, Inc., 2011 Ark. App. 771, 387 S.W.3d 292. The Commission reviews cases appealed to it de novo, and the duty of the Commission is not to determine whether there was substantialevidence to support the ALJ's findings; rather, it must make its own findings in accordance with the preponderance of the evidence. Id., see also Pharmerica v. Seratt, 103 Ark.App. 9, 285 S.W.3d 699 (2008).

The Commission is obliged to make findings and conclusions with sufficient detail and particularity to allow us to decide whether its decision is in accordance with the law. Vijil v. Schlumberger Tech. Corp., 2011 Ark. App. 87, 2011 WL 386996; Peters v. Doyle, 2009 Ark. App. 722, 2009 WL 3644305. When those details are lacking, it is appropriate to reverse and remand to the Commission so that it can provide a decision upon which we can conduct a meaningful review. See Cagle Fabricating & Steel, Inc. v. Patterson, 309 Ark. 365, 830 S.W.2d 857 (1992). Here, the Commission did not make findings and conclusions with sufficient detail and particularity to allow us to decide whether its decision is in accordance with the law. We remand on direct appeal for the Commission to make findings and conclusions with sufficient detail and particularity on the applicability of Ark.Code Ann. § 11–9–807(b) and the amount of the credit, if any, available to APX under the facts of this case.

On cross-appeal, APX asserts that the Commission erred in not finding Parker to be judicially estopped from claiming entitlement to TTD, and furthermore, that even absent estoppel, the decision to award TTD is not supported by substantial evidence. We disagree with both arguments and affirm on cross-appeal.

APX asserts that Parker alleged inconsistent positions pertaining to her ability/inability to work. In grossly simple terms, APX asserts that in her EEOC claim, Parker alleged she was able to work with reasonable accommodation. On the other hand, in her workers' compensation claim, Parker asserted she was unable to work so as to receive TTD benefits. As to judicial estoppel, the Commission found, “The respondent [APX] did not prove that the claimant is judicially estopped from asserting entitlement to temporary total disability benefits in accordance with Dupwe v. Wallace, 355 Ark. 521, 140 S.W.3d 464 (2004).” This is unlike the direct appeal in which the Commission did not cite any authority or rationale...