Estes v. Cedar Chemicals

Glen ESTES v. CEDAR CHEMICALS

CA 95-594                                          ___ S.W.2d ___

                  Court of Appeals of Arkansas
                             En Banc
                 Opinion delivered July 3, 1996


1.   Workers' compensation -- standard of review. -- When reviewing
     decisions from the Workers' Compensation Commission, the
     appellate court views the evidence and all reasonable
     inferences deducible therefrom in the light most favorable to
     the Commission's findings and affirms if supported by
     substantial evidence; substantial evidence is that which a
     reasonable person might accept as adequate to support a
     conclusion; a decision by the Workers' Compensation Commission
     should not be reversed unless it is clear that fair-minded
     persons could not have reached the same conclusions if
     presented with the same facts.

2.   Workers' compensation -- safety violation -- Commission's
     finding that appellant failed to meet burden of proof
     supported by substantial evidence. -- Despite the fact that
     appellee chemical company may have failed to educate its
     employees concerning the hazards of overheating, the specific
     cause of a reactor explosion was never isolated in OSHA
     reports, which listed three possible causes for the accident
     but also stated that these were only the "three main areas of
     potential cause"; it was possible that something else caused
     the accident and was not discovered; because the specific
     cause of the accident was never ascertained with any degree of
     certainty, the appellate court could not say that substantial
     evidence did not support the Workers' Compensation
     Commission's finding that appellant failed to meet his burden
     of proving by clear and convincing evidence that his injuries
     were substantially occasioned by a safety violation.

3.   Workers' compensation -- wage-loss compensation -- appellant
     was given bona fide offer of employment at same wages -- not
     entitled to wage-loss disability benefits. -- Where appellee
     established that, by offering him his former job, it had
     presented appellant with a "bona fide and reasonably
     attainable offer" to be re-employed at the same weekly wage
     that he was receiving before the accident pursuant to Ark.
     Code Ann.  11-9-522(b) (1987), and where appellant presented
     no medical evidence to support his claim that his
     psychological condition prevents him from returning to his
     former job and, significantly, never alleged a compensable
     psychological injury, appellee did all that it was required to
     do by offering appellant his former job, and the Commission
     correctly determined that Mr. Estes could have returned to it
     had he so desired; thus, the appellate court held that
     appellant was given a bona fide offer of attainable employment
     at the same wages and was not entitled to wage-loss disability
     benefits.


     Appeal from the Arkansas Workers' Compensation Commission;
affirmed.
     The Whetstone Law Firm, P.A., by Gary Davis, for appellant.
     Laser, Wilson, Bufford & Watts, P.A., by: Frank B. Newell, for
appellee.

     John B. Robbins, Judge.*ADVREP*CA7*                 EN BANC









GLEN ESTES
                     APPELLANT

V.


CEDAR CHEMICALS
                      APPELLEE



CA 95-594

                                                     JULY 3, 1996


APPEAL FROM THE ARKANSAS
WORKERS' COMPENSATION
COMMISSION, [D915214]




AFFIRMED





                     John B. Robbins, Judge.


     Appellant Glen Estes suffered a compensable shoulder injury
and burns while working for appellee Cedar Chemical Company on
September 25, 1989.  Appellee accepted responsibility for a 19%
permanent impairment rating, but Mr. Estes filed for additional
benefits, specifically contending that he was entitled to a 25%
increase in compensation because his injuries resulted from a
safety violation by the appellee.  He also claimed that he was
entitled to wage-loss benefits in excess of his permanent
anatomical impairment rating.  The Commission denied Mr. Estes'
claim for additional benefits, finding that he failed to prove a
safety violation by clear and convincing evidence, and that he
failed to establish entitlement to wage-loss benefits because he
had the ability to return to work for the appellee at the same
wages he was earning prior to the accident.  Mr. Estes now appeals,
asserting that neither of these findings was supported by
substantial evidence.  We affirm.
     When reviewing decisions from the Workers' Compensation
Commission, we view the evidence and all reasonable inferences
deducible therefrom in the light most favorable to the Commission's
findings and affirm if supported by substantial evidence.  Welch's
Laundry & Cleaners v. Clark, 38 Ark. App. 223, 832 S.W.2d 283
(1992).  Substantial evidence is that which a reasonable person
might accept as adequate to support a conclusion.  City of Fort
Smith v. Brooks, 40 Ark. App. 120, 842 S.W.2d 463 (1992).  A
decision by the Workers' Compensation Commission should not be
reversed unless it is clear that fair-minded persons could not have
reached the same conclusions if presented with the same facts. 
Silvicraft, Inc. v. Lambert, 10 Ark. App. 28, 661 S.W.2d 403
(1983).
     Mr. Estes testified on his own behalf that he began working
for the appellee in 1984 as a lead operator.  He stated that, at
the time of the accident, he was earning $11.43 per hour and
working about 10 hours of overtime per week.  His job included
filling large drums with agricultural chemicals.  These chemicals
were contained in a reactor that was about two stories in height.
     On September 25, 1989, Mr. Estes was working in close
proximity to the reactor when it ignited.  Upon noticing the
ignition, Mr. Estes tried to run to safety.  However, before he
could clear the area the reactor exploded and knocked him down.  As
a result, he received severe burns and a shoulder injury.  The
medical evidence showed that he is 17% anatomically impaired as a
result of the burns and 2% anatomically impaired because of the
shoulder injury.
     Mr. Estes acknowledged that an OSHA investigation of the
accident did not establish a cause for the explosion.  However,
he noted that he was working alone at the time of the accident and
the normal procedure was to work in two-man shifts.  He testified
that, because he was working alone, he was unable to monitor the
temperature of the reactor.  In addition, Mr. Estes asserted that,
immediately prior to his work shift, a nickel-sized hole in the
reactor had been repaired with a product called Devcon.  He stated
that this product is supposed to dry in 24 hours, but that a heat
lamp was placed inside the reactor which purported to cure the
Devcon in only 6 hours.
     Since the accident, Mr. Estes has returned to work for the
appellee as a storeroom clerk at exactly the same hourly rate that
he was making before the injury.  However, he testified that he now
receives little or no overtime.  Mr. Estes acknowledged that the
appellee has offered him his old job of lead operator and that he
is probably able to physically perform the job.  Nevertheless, he
declined to accept a job as lead operator for fear of another
accident.
     For reversal, Mr. Estes first argues that he should have been
awarded a 25% increase in compensation because his injuries were
the result of a safety violation.  He cites Arkansas Code Annotated
 11-9-503 (1987), which provides:
       Where established by clear and convincing evidence that
     an injury or death is caused in substantial part by the
     failure of an employer to comply with an Arkansas statute
     or official regulation pertaining to the health or safety
     of employees, compensation provided for by  11-9-501
     (a)-(d) shall be increased by twenty-five percent (25%).

Mr. Estes also refers to Arkansas Code Annotated  11-2-117 (1987),
which provides that an employer has a duty to provide a "safe work
place."  He now contends that the court erred in refusing to allow
the statutory award because he proved by clear and convincing
evidence that his injury was substantially occasioned by his
employer's failure to provide a safe work place.
     Specifically, Mr. Estes points to the OSHA investigative
report.  This report identifies three possible causes of
the explosion: (1) faulty repair of the hole in the reactor,
(2) introduction of other material in the reactor, or
(3) overheating of the reactor.  Mr. Estes argues that any of the
above three causes would amount to a safety violation.  According
to Mr. Estes, the faulty repair of the hole and the introduction
of foreign material into the reactor would both constitute safety
violations.  Also, he contends that overheating would constitute
a safety infraction because the appellee never instructed its
employees about the dangers of overheating and he was working alone
on the day of the accident, thus preventing him from adequately
monitoring the temperature.
     Mr. Estes fails to recognize that, in later OSHA reports, the
first two possibilities for the explosion were ruled out.  Thus,
it would appear that the most likely cause of the explosion was
overheating.  If this was the cause, it would seem that a safety
violation may have taken place.  This is because, after the OSHA
investigation, OSHA advised appellee that it had failed to properly
clarify to employees the hazards of extreme temperatures.  In fact,
there was evidence that an alarm was going off before the accident
which indicated a high temperature, but that Mr. Estes continued
to work under the assumption that the high temperature caused no
threat.  Even if employees had been informed about this danger,
Mr. Estes may have had a difficult time avoiding injury because he
was working alone and could not properly monitor the temperature.
     Despite the fact that the appellee may have failed to educate
its employees as to the hazards of overheating, the specific cause
of the explosion was never isolated in the OSHA reports.  An OSHA
report listed three possible causes for the accident, but it also
stated that these were only the "three main areas of potential
cause."  It is possible that something else caused the accident
and was not discovered, and because the specific cause of
the accident was never ascertained with any degree of certainty,
we cannot say that substantial evidence does not support the
Commission's finding that Mr. Estes failed to meet his burden of
proving by clear and convincing evidence that his injuries were
substantially occasioned by a safety violation.
     Mr. Estes' remaining argument is that the Commission erred in
finding that he was not entitled to wage-loss compensation.  He
notes that, while he is now working at the same hourly rate as
before the accident, he has lost income because he no longer works
overtime.  Mr. Estes asserts that it is of no consequence that he
is probably physically able to perform his old job because his
reasonable fear of another accident prohibits him from doing so.
     Had the appellee not offered Mr. Estes his former job upon
completion of his healing period, he would have had a claim for
wage-loss disability due to the reduced hours that he is able
to work as a storeroom clerk.  Nevertheless, the appellee has
established that, by offering him his former job, it has presented
Mr. Estes with a "bona fide and reasonably attainable offer" to
be re-employed at the same weekly wage as he was receiving before
the accident pursuant to Ark. Code Ann.  11-9-522(b) (1987). 
Mr. Estes claims that he is mentally incapable of returning to that
job.  However, he presented no medical evidence to support his
claim that his psychological condition prevents him from doing so. 
Significantly, Mr. Estes never alleged a compensable psychological
injury.  The appellee did all that it was required to do by
offering Mr. Estes his former job and the Commission correctly
determined that Mr. Estes could have returned to it had he so
desired.  Thus, he was given a bona fide offer of attainable
employment at the same wages, and is not entitled to wage-loss
disability benefits.
     Affirmed.
     Pittman, Stroud, and Neal, JJ., agree.
     Cooper and Mayfield, JJ., dissent.*ADVREP*CA7-A*

                             EN BANC



                                        CA 95-594


                                             JULY 3, 1996


GLEN ESTES                         AN APPEAL FROM THE ARKANSAS
                                   WORKERS' COMPENSATION
               APPELLANT           COMMISSION

VS.                                
                                        
CEDAR CHEMICALS                    DISSENTING OPINION

               APPELLEE




                     Melvin Mayfield, Judge.


     I cannot agree with the majority opinion in this case. 
     Glen Estes, the claimant-appellant, was severely burned when
a chemical reactor exploded and almost completely destroyed the
multi-story building he was working in.
     The administrative law judge held that (1) appellant had
failed to demonstrate, by clear and convincing evidence, that his
injury was caused by the failure of the employer to provide a safe
work environment; and (2) appellant had returned to work for
appellee earning the same wages he earned at the time of the
accident and, therefore, was not entitled to wage-loss disability
in excess of his permanent anatomical impairment.  The Commission
affirmed and adopted the opinion of the administrative law judge. 
     I agree to affirm on point one because it is a question of
fact for the Commission.  However, the appellant also argues that
the Commission's denial of wage-loss disability is not supported by
substantial evidence, and I cannot agree to affirm on that point.
     Appellant testified that at the time of the accident he was
making $10.93 per hour, plus an additional fifty cents an hour,
normally worked 42 1/2 hours per week at a minimum, and, in
addition, he worked 20 to 25 hours overtime every week.  When he
returned to work after his injury he asked not to be assigned back
to the reactor because he had a terrible fear of being in another
explosion.  He was then given a job as a storeroom clerk and was
also paid $10.93, plus fifty cents an hour; however, as a storeroom
clerk, he got no raises and no overtime pay. 
     Appellant also testified that if he had continued working as
a reactor operator, his salary would have been over $12 an hour by
the time of the hearing.  Appellant argues that while his hourly
rate of pay is the same as when he was injured, his wages are not
the same because he no longer gets overtime and raises.  
     Arkansas Code Annotated  11-9-522(b) (1987) provides in part:
     However, 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 average weekly wage at the time of the accident, he
     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.  [Emphasis added.]

     Relying on the above statute, the appellee argues that the
appellant was offered his old job as lead reactor operator, but
appellant turned it down.  However, Ark. Code Ann.  11-9-522(b)
also provides that an employee shall not be entitled to wage-loss
disability if he "has a bona fide and reasonably obtainable offer
to be employed at wages equal to or greater than his average weekly
wage at the time of the accident."  I do not agree that the offer
to return appellant to the job where the reactor exploded,
destroyed the multi-story building in which it was housed, severely
burned the appellant, and caused him a permanent anatomical
impairment was a "reasonably obtainable" job offer.
     Moreover, Ark. Code Ann.  11-9-522(c)(1) provides that the
employer or its insurance carrier "shall have the burden of proving
the employee's receipt of a bona fide offer to be employed at wages
equal to or greater than his average weekly wage at the time of the
accident."  
     We will, of course, uphold the findings of the Commission if
there is substantial evidence to support those findings; but
substantial evidence exists only where reasonable minds could reach
the same conclusion reached by the Commission, and reversal is
proper if fair-minded persons considering the same facts could not
have reached the same conclusion.  Kuhn v. Majestic Hotel, 324 Ark.
21, 918 S.W.2d 162 (1996); Price v. Little Rock Packing Co., 42
Ark. App. 238, 856 S.W.2d 317 (1993).  
     I do not believe that the appellee in this case has carried
the burden of showing that fair-minded persons would conclude from
the facts in this case that the appellee's offer to let the
appellant go back to work as a lead reactor operator constituted a
"reasonably obtainable" offer.  While the old job may have been
obtainable, I do not think it is reasonable to expect an employee
to go back to the job on the reactor which he fears may blow up
again.  Therefore, from the employee's viewpoint, the old job is
not reasonably obtainable, and I do not believe that the employer
proved otherwise.
     Therefore, I dissent.  
     Cooper, J., joins in this dissent.