Stiger v State Line Tire Service

• Decision Date: 20 December 2000
• Docket Number: 99-1426
• Court: Arkansas Court of Appeals
• Parties: ALVIN STIGER, APPELLANT V. STATE LINE TIRE SERVICE AND FEDERATED INSURANCE CO., APPELLEES CA99-1426 20 December 2000 APPEAL FROM THE WORKERS' COMPENSATION COMMISSION, NO. E805425 AFFIRMED Sam Bird, Judge. Alvin Stiger appeals a decision of the Workers' Compensation Commission in which he was awarded temporary total disability benefits, but denied additional benefits under Ark. Code Ann. § 11-9-505 (Repl. 1996), which provides for additional benefits to an employee when an employer willfully discriminates against the employee because he has filed a claim for workers' compensation benefits. On appeal, Stiger argues that the Commission unconstitutionally denied him his right of due process by substituting its own credibility determination for that of the administrative law judge, by improperly speculating on the motives of a witness rather than the testimony of the witness, and by overturning the initial findings of the administrative law judge regarding credibility. At the hearing, Stiger testified that he began working for appellee State Line Tire Service in February 1998. He broke his hand on April 6 when he was removing the springs on an R.V. motor home. He sought medical attention and was eventually referred to Dr. Jeffrey T. DeHaan, an orthopedic surgeon, who put his hand in a cast and prohibited him from returning to work. Stiger's hand remained in a cast for five weeks, and he then received physical therapy for two weeks. The parties stipulated that temporary total disability was paid from

ALVIN STIGER, APPELLANT

V.

STATE LINE TIRE SERVICE AND FEDERATED INSURANCE CO., APPELLEES

CA99-1426

20 December 2000

APPEAL FROM THE WORKERS' COMPENSATION COMMISSION, NO. E805425

AFFIRMED

Sam Bird, Judge.

Alvin Stiger appeals a decision of the Workers' Compensation Commission in which he was awarded temporary total disability benefits, but denied additional benefits under Ark. Code Ann. § 11-9-505 (Repl. 1996), which provides for additional benefits to an employee when an employer willfully discriminates against the employee because he has filed a claim for workers' compensation benefits. On appeal, Stiger argues that the Commission unconstitutionally denied him his right of due process by substituting its own credibility determination for that of the administrative law judge, by improperly speculating on the motives of a witness rather than the testimony of the witness, and by overturning the initial findings of the administrative law judge regarding credibility.

At the hearing, Stiger testified that he began working for appellee State Line Tire Service in February 1998. He broke his hand on April 6 when he was removing the springs on an R.V. motor home. He sought medical attention and was eventually referred to Dr. Jeffrey T. DeHaan, an orthopedic surgeon, who put his hand in a cast and prohibited him from returning to work. Stiger's hand remained in a cast for five weeks, and he then received physical therapy for two weeks. The parties stipulated that temporary total disability was paid from May 15, 1998, to June 25, 1998. Stiger was released to return to work on June 29th. After his doctor's appointment on June 23, he returned to State Line and gave Ronella Fett, the company's bookkeeper, a document stating that he had been released to work. He testified that he informed Ronella Fett that he would be returning to work on Monday, June 29th.

Stiger testified that during the time he was off work, Wendell Fett, the owner and general manager of State Line, called him and asked him to return to work. Stiger told Fett that he was in physical therapy and would return when he was finished. Stiger said that Fett replied that the best therapy he could seek would be pulling on wrenches.

Stiger testified that shortly before 7 a.m. on the morning of June 29, he called Wendell Fett to make sure that he could go to work, and that Wendell Fett told him that he was not needed. He admitted on cross-examination that he never received any documentation that he had been fired, nor did he file for unemployment benefits.

Betty Reel, a supervisor for State Line, testified that Stiger had worked under her supervision, and that, after Stiger injured his hand, his job responsibilities were performed by J.T., a mechanic for State Line. She stated that as a supervisor she had the authority to terminate employees, but that she neither terminated Stiger nor recommended that he be terminated. She said that while Stiger was off work recuperating from his hand injury she spoke with him on a couple of occasions and inquired how his hand was healing and when he would be able to return to work. She also testified that Wendell Fett, the owner and general manager of State Line, usually informed her when he terminated someone so she could begin looking for a replacement. She stated that at no time did Wendell Fett inform her that he had fired Stiger.

Ronella Fett testified that she handled Stiger's workers' compensation claim and that nothing in the business records showed that Stiger had been fired; they indicated that his status was "pending. ... I have him as an employee that was on workman's comp and he failed to return to work after he was released." Further, she stated that when someone is fired, or quits, that status is reflected on the computer payroll sheet. Stiger's payroll sheet at the time of the hearing did not reflect that he had been terminated; it was, instead, left blank. She said, "I have not been told that he has been terminated or let go or anything. Until I hear that, I don't put anything in there." She also stated that before an employee is terminated, "they will come into the office with Wendell [Fett] and their immediate supervisor and they will discuss the problem and then they will be fired." She maintained that no one had been hired to replace Stiger before he was released to return to work, and that if someone had been, she would have known about it as she would have entered that into the payroll records. She said that State Line did not hire a replacement for Stiger until September 1998.

Wendell Fett testified that when Stiger injured his hand at work, the injury was accepted as being job related. Hestated that during the time that Stiger was unable to work they needed his help, so someone from State Line kept in contact with the nurse who was managing Stiger's case so they would know when he would be able to return to work. Wendell Fett stated that he has two supervisors who have the authority to hire and fire employees, but neither he nor either supervisor told Stiger not to return to work.

Wendell Fett also testified that Stiger called him around the end of June to tell him that he had been released by the doctor and wanted to know if he could come back to work. Wendell Fett said that he told Stiger to come in the following day and they would discuss it, meaning that he needed to find out just how much Stiger was capable of working, but Stiger never showed up. Wendell Fett said that Stiger was a good employee and he had no reason to fire him. On cross-examination, Wendell Fett admitted that when an employee is hurt on the job, the company's insurance premiums increase. Wendell Fett also admitted contacting Stiger when Stiger was still in physical therapy and asking him if he would consider returning to work on a part-time basis, performing light-duty work. He did not deny that he told Stiger the best therapy he could get would be by pulling on some wrenches. He also stated that when Stiger was released to return to work, he had not replaced him as the brakeman. He stated, "If I have a man that is capable of doing brake work, it costs me money not to have him there." He testified that he was not in the office the day Stiger brought the note in releasing him to return to work, and that another employee had told Stiger to call him.

The administrative law judge found that Stiger was entitled to temporary total disability benefits from April 14 to June 29, 1998; that State Line had willfully terminated Stiger for filing his workers' compensation claim, which violated Ark. Code Ann. § 11-9-107 (Repl. 1996), and he fined State Line $7,000 and directed that it be paid into the Second Injury Trust Fund. However, the law judge did not award Stiger any additional benefits under Ark. Code Ann. § 11-9-505, which requires the offending employer to pay the employee the difference between the benefits he received and the average weekly wages he lost during the period the employer did not allow him to return to work. State Line appealed to the full Commission arguing that substantial evidence did not support the law judge's finding that it had willfully terminated Stiger. Stiger filed a cross-appeal contending that the law judge had misinterpreted Ark. Code Ann. § 11-9-505.

In an opinion dated September 16, 1999, the Commission affirmed the law judge's finding that Stiger was entitled to temporary total disability benefits from the date of his injury until June 29, 1998. However, the Commission denied benefits under § 11-9-505, holding that Stiger was not willfully terminated from State Line, that State Line had not violated Ark. Code Ann. § 11-9-107, and that Stiger had voluntarily left State Line. Stiger then filed a notice of appeal and a motion for reconsideration on the ground that the Commission denied his right to due process by overruling the specific findings of the law judge and substituting its own findings on the credibility of the witnesses when it did not personally observe the witnesses. The Commission denied Stiger's motion for reconsideration in an order dated November 16, 1999, and he brings this appeal from both the September 16, 1999 order and the November 16, 1999 order.

In a lengthy opinion denying Stiger's motion for reconsideration, the Commission conceded that its credibility determination was at odds with the credibility determination of the law judge. However, it stated that its statutorily mandated de novo review of the record, including its consideration of credibility issues, does not result in any denial of due process even though the Commission makes credibility findings without personally hearing and observing the live testimony of the witnesses.

Stiger's first argument on appeal is the same argument that he made in his motion for reconsideration: that the Commission erred and violated his right to due process by substituting its own credibility determinations for that of the law judge. Stiger contends that even though "the commission has the ability and duty to conduct a de novo review, it is improper for the commission to pass on intangible issues not in the record and determine credibility when such a determination has already been made by the Administrative Law Judge." He contends that since the law judge had found that Wendell Fett was not credible, the Commission cannot make the finding that Fett was credible. Stiger also contends that the Commission denied him the right of due process when it improperly speculated on the motives of a testifying witness instead of reviewing only the testimony transcribed.

Arkansas Code Annotated section 11-9-207 (Repl. 1996)grants to the Commission the power and the duty to determine all claims for compensation. In addition, the statute gives the Commission the authority to appoint administrative law judges to conduct hearings and investigations and make whatever orders, decisions, and determinations are required by a rule or order of...