Tyson Poultry, Inc. v. Narvaiz

• Decision Date: 15 March 2012
• Docket Number: No. 11–3.,11–3.
• Citation: 2012 Ark. 118,388 S.W.3d 16
• Parties: TYSON POULTRY, INC. v. Francisco NARVAIZ, Appellee.
• Court: Arkansas Supreme Court

2012 Ark. 118

388 S.W.3d 16

TYSON POULTRY, INC.

v.Francisco NARVAIZ, Appellee.

No. 11–3.

Supreme Court of Arkansas.

March 15, 2012.

Emma Diane Graham and Victor L. Crowell, Fort Smith, for appellant.

Conrad Thomas Odom, Fayetteville, and Timothy James Cullen, Little Rock, for appellee.

DONALD L. CORBIN, Justice.

Appellant, Tyson Poultry, Inc., appeals the order of the Workers' Compensation Commission finding that Appellee, Francisco Narvaiz, was entitled to additional temporary-total-disability benefits, wage-loss disability, and attorney's fees. For reversal, Appellant asserts that there was not substantial evidence to support the Commission's findings. The Arkansas Court of Appeals first heard this appeal and reversed the Commission's decision. Tyson Poultry, Inc. v. Narvaiz, 2010 Ark. App. 842, 2010 WL 5132119. Appellee petitioned for review, asserting that the decision of the court of appeals conflicted with a prior decision of the court of appeals, Superior Industries v. Thomaston, 72 Ark.App. 7, 32 S.W.3d 52 (2000), and erroneously applied the rules of statutory construction. See Ark. Sup.Ct. R. 2–4(c)(ii) & (iii) (2011); see also Ark. Sup.Ct. R. 1–2(b)(6) (2011). We granted review, and jurisdiction is properly in this court pursuant to Rule 1–2(e). When we grant review following a decision of the court of appeals, we consider the case as though it had been originally filed in this court. Nat'l Bank of Ark.v. River Crossing Partners, LLC, 2011 Ark. 475, 385 S.W.3d 754. Upon such review, we find no error in the Commission's decision and affirm it; the opinion of the court of appeals is vacated.

Appellee had previously been injured on the job and was working on light duty when he called his female supervisor an insulting, derogatory, and vulgar name (“mother-f- -king bitch”). Appellant placed Appellee on suspension and then terminated his employment due to insubordination and gross misconduct. The administrative law judge (ALJ) denied Appellee's claim for temporary-total disability for the remainder of his disability period, as well as his claims for wage-loss benefits and attorney's fees.

The Commission reversed the ALJ's decision on the grounds that termination for misconduct is not a sufficient basis for a finding that the employee refused suitable employment under Ark.Code Ann. § 11–9–526 (Repl.2002), which provides that an injured employee who refuses suitable employment shall not be entitled to compensation during the period of his refusal. The Commission relied on Thomaston, 72 Ark.App. 7, 32 S.W.3d 52, in which the court of appeals strictly construed section 11–9–526 and held that when an employer terminates a claimant's employment due to his misconduct, the employee has not refused employment; rather, his employment has been terminated at his employer's option. Accordingly, in the present case, the Commission found that Appellee proved that he was entitled to additional temporary-total-disability benefits for the remainder of his disability period, that he was entitled to wage-loss benefits at the rate of five percent, and that he was thus entitled to attorney's fees.

In reversing the Commission's decision, the court of appeals departed from Thomaston by expressly limiting that case to its facts and stating without explanation that, “We think that the broad construction of the statutory language adopted in [ Thomaston], implying as it does that no act of misconduct can ever constitute a refusal of employment, was unwarranted.” Narvaiz, 2010 Ark.App. 842, at 2, 2010 WL 5132119. As noted, although we granted review, we treat this case as an appeal to us from the decision of the Commission, and we now address Appellant's three points for reversal of the Commission's decision. Lawhon Farm Servs. v. Brown, 335 Ark. 272, 984 S.W.2d 1 (1998).

As its first point for reversal, Appellant asserts that there is not substantial evidence to support the Commission's finding that Appellee proved he was entitled to temporary-total-disability benefits. Because Appellee was performing light-duty work at the time his employment was terminated, and because Appellant offered testimony that Appellant would have continued to make the light-duty work available to Appellee absent his misconduct, Appellant contends that Appellee did not meet his burden of proving that he was totally incapacitated from earning gainful wages due to his compensable injury. Any incapacity from earning wages, argues Appellant, stemmed from Appellee's misconduct and not from his injury. Appellant's view is that, by engaging in misconduct, Appellee unjustifiably refused suitable work as contemplated in section 11–9–526. Section 11–9–526 states in its entirety as follows:

If an injured employee refuses employment suitable to his or her capacity offered to or procured for him or her, he or she shall not be entitled to any compensation during the continuance of the refusal, unless in the opinion of the Workers' Compensation Commission, the refusal is justifiable.

Appellee responds that Appellant's attempt to characterize its termination of Appellee's employment as amounting to a refusal on Appellee's part to go to work is a broad misinterpretation of section 11–9–526. Appellee responds further that Appellant's argument overlooks the medical evidence that thoroughly describes the extent of Appellee's injury and the healing period that followed.

To be entitled to temporary-total-disability benefits, the claimant must remain in his healing period and be unable to earn wages. Ark. State Hwy. & Transp. Dep't v. Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981); St. Joseph's Mercy Med. Ctr. v. Redmond, 2012 Ark. App. 7, 388 S.W.3d 45. Disability means “incapacity because of compensable injury to earn, in the same or any other employment, the wages which the employee was receiving at the time of the compensable injury.” Ark.Code Ann. § 11–9–102(8) (Supp.2011). The healing period is “that period for healing of an injury resulting from an accident.” Ark.Code Ann. § 11–9–102(12) (Supp.2011). Temporary-total disability is that period within the healing period in which a claimant suffers a total incapacity to earn wages. RPC, Inc. v. Hargues, 2011 Ark. App. 264, 2011 WL 1319384. To be entitled to temporary-total-disability benefits, the claimant must prove that he remains within his healing period and suffers a total incapacity to earn wages. Id. The question of when the healing period ends is a question of fact for the Commission. Id.

In ruling that Appellee had met his burden of proof in this case, the Commission stated as follows:

The claimant contends that he did not refuse employment suitable to his capacity. A termination for misconduct is not a sufficient basis for a finding that an employee refused suitable employment. See Superior Indus. v. Thomaston, 72 Ark.App. 7, 32 S.W.3d 52 (2000). Like the claimant in Superior Indus., the claimant did not refuse employment. The claimant accepted the employment offered him and was later terminated not by his choice, but at the option of the employer. See Superior Indus. at p. 11 .

The instant claimant underwent compensable left-shoulder surgery on January 31, 2008. The record therefore shows that the claimant remained within a healing period and was totally incapacitated from earning wages no later than January 31, 2008. The respondent paid temporary total disability benefits through April 28, 2008, but Dr. Kaler reported on that date that the claimant had not reached maximum medical improvement. Dr. Kaler determined that the claimant reached maximum medical improvement as of August 6, 2008. The claimant proved that he remained within a healing period and was totally incapacitated from earning wages until August 6, 2008. The claimant therefore proved that he was entitled to additional temporary total disability benefits from April 28, 2008 through August 6, 2008.

In appeals involving claims for workers' compensation, we view the evidence in the light most favorable to the Commission's decision and affirm the decision if it is supported by substantial evidence. Hudak–Lee v. Baxter Cnty. Reg'l Hosp. & Risk Mgmt. Res., 2011 Ark. 31, 378 S.W.3d 77. Substantial evidence is evidence that a reasonable mind might accept as adequate to support a conclusion. Id. The issue is not whether the appellate court might have reached a different result from the Commission, but whether reasonable minds could reach the result found by the Commission. Id.

The evidence of record shows that Appellee sustained the compensable injury to his left shoulder on August 22, 2007, and began receiving medical treatment on August 28, 2007. He continued to work on light duty, and learned on November 29, 2007, that his injury was a complete tendon tear that would require surgery. Surgery occurred on January 31, 2008. Meanwhile, his misconduct and suspension for violation of company policies against insubordination and gross misconduct occurred on or about December 22, 2007, and when Appellee returned to work immediately following his suspension, Appellant terminated his employment. Appellant stopped paying temporary-total-disability benefits to Appellee on April 28, 2008. The treating physician determined Appellee to be at maximum medical improvement on August 6, 2008. Based on this evidence before the Commission, substantial evidence supports its finding that Appellee had proved that he remained within a healing period and was totally incapacitated from earning wages until August 6, 2008, and that he had therefore proved that he was entitled to additional temporary-total-disability benefits from April 28, 2008, through August 6, 2008.

In addition to being supported by the foregoing substantial evidence, the Commission's decision is also supported by a correct interpretation of section 11–9–526. The Commission's reliance on Thomaston, 72 Ark.App. 7, 32 S.W.3d 52, was well placed for making the determination that Appellee's...