Cross v. Crawford County Memorial Hosp.

*ADVREP*CA6*                          EN BANC




                                       CA 95-721
                                        
                                                     June 19, 1996     



WILMA CROSS                          AN APPEAL FROM THE ARKANSAS     
                 APPELLANT           WORKERS' COMPENSATION COMMISSION
                                     NO. E121126                      
V.
                                                                
CRAWFORD COUNTY MEMORIAL 
HOSPITAL                     
                 APPELLEE
                                     REVERSED






                         Judith Rogers, Judge.


     This is an appeal from the Workers' Compensation Commission's
order affirming and adopting the administrative law judge's
decision denying appellant's claim for wage-loss disability
benefits.  On appeal, appellant argues that there is no substantial
evidence to support the Commission's denial of wage-loss disability
benefits.  We agree that the Commission's decision cannot stand,
and we reverse.
     The record reveals that appellant was a fifty-nine-year-old
practical nurse who worked for appellee for twenty-four years.  She
has a seventh grade education and worked her way to the position of
nurse's aide.  Appellant attended LPN school and passed her state
boards before taking the position with appellee.  Her duties as a
practical nurse included total patient care.  She was assigned four
or five patients whom she bathed and fed.  She also administered
medication to those patients.  The record also indicates that
appellant's job required heavy lifting and repetitive bending.  
     On December 9, 1991, she sustained an admittedly compensable
injury to her back and was assigned a 10% anatomical impairment
rating.  Appellee paid temporary partial disability benefits until
March 10, 1994, and permanent partial disability benefits based on
a 10% permanent physical impairment rating.  In June 1994,
appellant was laid off along with twenty other employees. 
Appellant testified that she has sought employment since the lay-
off, but she has not been able to find employment.
     The medical evidence reflects that appellant was seen by Dr.
Richard D. DeKok, Director of Physical Therapy with Crawford
Memorial Hospital.  On June 28, 1994, Dr. DeKok noted that it was
his goal as far back as December 1993 that appellant could increase
to an eight-hour light duty shift with certain restrictions.  The
record indicates, however, that appellant returned to light duty in
July 1993, and was provided only a four-hour work day until she was
laid off in June of 1994.  Appellant testified that she went back
to work expecting an eight-hour day, and she did not understand why
she was only given four hours.  She also said that she never
refused to work.  Appellant stated that even though the work
bothers her physically, she would rather work than draw social
security disability.  
     Appellant also testified that when she returned to light duty
in 1993 she discussed attending classes at Westark Community
College with Ms. Jo Hilgendorf, appellee's Human Resource Director. 
Appellant said that she checked the class schedule and contacted
Ms. Hilgendorf.  According to appellant, Ms. Hilgendorf said that
she would "get back with her", but Ms. Hilgendorf never called her
back to confirm the courses.  Appellant also stated that she was
not made aware that appellee would be responsible for the cost of
the courses.  Appellant filed a claim requesting additional
temporary total disability benefits and wage loss disability
benefits.
     At the hearing, appellant was the only witness to testify.  It
was not until approximately nine days after the hearing that Ms.
Hilgendorf's deposition was taken.  She testified that appellee
would cover the costs of courses at Westark College and have a
position for appellant if she completed the courses and if a job
were available.  Appellant gave a deposition in response to that of
Ms. Hilgendorf in which she said that she would be willing to go to
Westark College for training in typing and computer skills if
appellee shouldered the costs.
     The ALJ stated in his opinion:
          If the claimant successfully completes the
          courses required at Westark Community College
          and if the respondent/employer rehires the
          claimant at a wage equal to or greater than
          the wage she was drawing prior to her injury,
          then the claimant does not have a wage loss
          disability.  The claimant would argue that if
          she cannot complete the courses or if the
          respondent/employer does not re-employ her,
          then she has a wage loss disability.  It
          appears to me that the issue of permanency was
          prematurely addressed.  The issue should have
          been couched in terms of a request for reha-
          bilitation benefits.  It was not, therefore I
          find that claimant failed to prove by a pre-
          ponderance of the credible evidence that she
          has a wage loss disability.  (Emphasis added.)

After making a finding that the issue of wage-loss was premature,
the ALJ summarily denied appellant wage-loss disability because of
insufficient credible evidence.  It appears from the ALJ's decision
that his basis for the denial of wage-loss benefits was that the
issue was premature and that the issue should have been "couched in
terms of a request for rehabilitation benefits."  We find that the
ALJ erred in denying appellant wage-loss disability benefits after
he determined the issue to be premature.  A finding on the issue of
wage-loss disability should have been held in abeyance based on the
ALJ's finding.  Therefore, we reverse the Commission's denial of
wage-loss disability benefits in light of its finding that the
issue was premature.
     We also note, that despite the Commission's finding that the
issue of permanency was premature, the Commission failed to make
specific findings of fact in determining appellant's entitlement to
wage-loss disability benefits.  In addition, the limited findings
that the Commission did make are not supported by the record.
     The wage-loss factor is the extent to which a compensable
injury has affected the claimant's ability to earn a livelihood. 
The Commission is charged with the duty of determining disability
based upon a consideration of medical evidence and other matters
affecting wage-loss, such as the claimant's age, education, and
work experience.  Bradley v. Alumax, 50 Ark. App. 13, 899 S.W.2d 850 (1995).  "The employer or his workers' compensation insurance
carrier shall have the burden of proving the employee's employment,
or 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 his accident."  Ark. Code Ann.  11-9-522(c)(1) (Repl. 1996).  
     The ALJ made the following findings regarding wage-loss
disability:
          Even prior to the June 1994 layoff the claim-
          ant was advised by Jo Hilgendorf, Human Re-
          sources Director for Crawford County Memorial
          Hospital, that Crawford County Memorial Hospi-
          tal would pay for computer training at Westark
          Community College which is located in Fort
          Smith.  After schooling she would be employed
          by the respondent employer in either medical
          records or admissions.  She would also be
          employed at the same rate of pay she was
          making prior to her compensable injury.  For
          reasons known only to the claimant, she showed
          no interest in attending Westark Community
          College for training.

     The ALJ failed to make specific findings with regard to the
factors it should have considered when determining the issue of
wage-loss disability benefits.  The ALJ did not indicate that he
considered appellant's age, education, work experience, or medical
condition.  The Commission adopted that ALJ's decision which failed
to make sufficient factual findings that would enable the appellate
court to conduct a meaningful review of the Commission's decision. 
See Arkansas Dep't of Health v. Williams, 43 Ark. App. 169, 863 S.W.2d 583 (1993).  A specific finding must contain all the
specific facts relevant to the contested issue or issues so that
the reviewing court may determine whether the Commission has
resolved those issues in conformity with the law.  Wright v.
American Transportation, 18 Ark. App. 18, 709 S.W.2d 107 (1986). 
In this case, the ALJ failed to make specific findings with regard
to the issue of wage-loss disability, and the limited findings that
were made do not appear to be supported by the record.  
     The record reveals that there was no actual offer of employ-
ment made by appellee to appellant.  Ms. Hilgendorf said that if
appellant was capable of performing the work, if a job was
available, and if appellant could work eight hours a day then there
may be a position as a ward secretary or in medical records when
the computer equipment arrived.  She testified that there was not
a job available at the present time based on appellant's current
level of experience, education, and medical condition.  
     Arkansas Code Annotated  11-9-522(c)(1) places the burden on
the employer of providing "a bona fide offer to be employed."  This
means that there must be an actual offer of employment.  See
Weyerhaeuser Co. v. McGinnis, 37 Ark. App. 91, 824 S.W.2d 406
(1992).  The evidence in this case does not show that appellant was
offered a job.  In fact, the evidence shows that any type of job
available to appellant was speculative and based on future
circumstances.  Also, there is no evidence in the record indicating
what rate of pay appellant would receive if she returned to a job
with appellee.  Furthermore, in noting that "[f]or reasons known
only to the claimant, she showed no interest in attending Westark
Community College for training", the ALJ completely disregarded
appellant's testimony explaining why she had not attended classes. 
It would have been appropriate for the ALJ to make a credibility
determination with regard to appellant's testimony on this point,
but that is not what occurred.
     Ordinarily, we would remand a case when the Commission fails
to make specific findings to support its conclusion on an issue. 
However, in this case, the Commission's decision must be reversed
because of the Commission's finding that the issue of wage-loss was
premature.  Consequently, the onus will be on appellant to file a
claim for wage-loss disability at an appropriate time when the
issue is ripe for consideration.  
     Reversed.
     Cooper, Robbins, and Mayfield, JJ., agree.
     Jennings, C.J., and Griffen, J., dissent.

*ADVREP*CA6-A*               EN BANC





                                   CA95-721

                                                June 19, 1996


WILMA CROSS                        AN APPEAL FROM WORKERS'  
COMPENSATION COMMISSION
                                   NO. E121126

V.                                 

CRAWFORD COUNTY MEMORIAL
HOSPITAL                           
                APPELLEE           DISSENTING OPINION





                   Wendell L. Griffen, Judge.

She was the daughter of Zeus alone.  No mother bore her. 
Full-grown and in full armor, she sprang from his head.

                 -- Edith Hamilton, Mythology 29 (1942)

     I respectfully dissent from the courtþs decision reversing the
Commission because I believe that the Commissionþs decision that
appellant failed to prove her entitlement to benefits for diminu-
tion of her wage-earning capacity beyond her 10% physical impair-
ment rating is supported by substantial evidence.  Appellant is a
59 year-old licensed practical nurse who completed the seventh
grade, obtained her GED, and then completed nursesþ aide training. 
She sustained a compensable injury December 10, 1991, and was
assigned the impairment rating by her authorized doctor.  She
sought additional permanent disability benefits for diminution of
her capacity to earn wages, and argues that she is unable to work
full days and lacks the training for a better paying job.  The
Commission weighed the evidence on her claim for additional
benefits, found that she had failed to meet her burden of proof,
and affirmed and adopted the findings and conclusions of the
administrative law judge on the wage loss issue.  Instead of
abiding by the substantial evidence standard of review that applies
to workers' compensation cases, the majority has now elevated
itself to a super-Commission in order to reverse the Commission. 
Because I am convinced that the substantial evidence standard
deserves more than lip service from the appellate court responsible
for deciding the majority of workersþ compensation appeals in
Arkansas, I write to explain why I cannot join in that decision.
     Appellantþs doctor diagnosed her injury as a healing grade II
compression fracture of T-10, without neurological defects, and
accompanied by osteoporosis.  She was also evaluated by a neurosur-
geon who opined that she needed to wean herself from a back brace,
begin physical therapy, and enter a fitness program to strengthen
her back muscles.  The director of physical therapy at Crawford
Memorial Hospital (where appellant worked) noted that appellant
could tolerate an eight-hour light duty work schedule if she
avoided heavy lifting and was not restricted to remaining in a
fixed position for extended periods of time.  The employer returned
her to light duty work, but was unable to retain her because of a
reduction in its patient census.  Appellant was laid off with
nineteen other employees due to the decreased patient census in
June 1994.
     Even before the layoff occurred, appellant had been advised by
her employerþs human resource director that the employer would pay
for her to obtain computer training at Westark Community College,
and that she would be employed by the employer after the training
to work in either medical records or admissions, and at her pre-
injury wage.  Appellant made no attempt to enroll in that training,
and claims that she did not know about it until the hearing
occurred on her claim.  Instead, she filed for unemployment
benefits several days after the layoff, and was drawing those
benefits as of August 15, 1994, when her claim was heard by the
administrative law judge.  Despite the physical therapy directorþs
indication that she could tolerate an eight-hour light duty work
schedule and despite numerous physical therapy record entries
indicating that appellant had been encouraged to increase her work
hours before the layoff occurred, appellant did not increase the
work hours and denied that she had even been encouraged to work
longer than five hours a day.  Her clinical examinations produced
normal MRI and neurological findings, and the medical proof clearly
shows that the compression fracture of her thoracic spine had
healed.
     I review this proof because our substantial evidence standard
requires that we do so.  We are not required to engage in this
review in order to determine whether we would have reached the same
result that the Commission reached.  It is fundamental law that an
appellate court reviews the evidence and all reasonable inferences
from it in the light most favorable to the findings of the Workersþ
Compensation Commission, whose findings will be upheld if there is
any substantial evidence to support its result, even if the
preponderance of the evidence would support a different result. 
Because appellate review is not de novo, we are not to be concerned
with the weight of the evidence nor the credibility of witnesses. 
Hawthorne v. Davis, 268 Ark. 131, 594 S.W.2d 844 (1980).  The
proposition has been cited so many times that citation is virtually
unnecessary that on appeal from a decision of the Commission, the
reviewing court is not privileged to consider the evidence de novo
or to weigh the evidence, but must give the evidence its strongest
probative force in favor of the actions of the Commission, which
carry the same weight as a jury verdict.  See O.K. Processing, Inc.
v. Servold, 265 Ark. 352, 578 S.W.2d 224 (1979); Barksdale Lumber
Co. v. McAnally, 262 Ark. 379, 557 S.W.2d 868 (1977).  On appeal
from a decision of the Commission, the evidence must be viewed most
favorably to the findings of the Commission, whether they be for
the claimant or the employer, and the decision must be affirmed
unless there was no substantial evidence to support the Commis-
sionþs decision.  Turner v. Lambert Const. Co., 258 Ark. 333, 524 S.W.2d 465 (1975).  Where a claimant appeals from an adverse
Commission decision, she has the burden of showing that the proof
before the Commission was so nearly undisputed that fair-minded
persons could not have arrived at the Commissionþs adverse finding. 
Franks v. Amoco Chemical Co., 253 Ark. 120, 484 S.W.2d 689 (1972).
     The clear message from these holdings is that our appellate
function in performing substantial evidence review is not to weigh
the evidence as if we were the Commission.  We do not exist to give
losing parties a second chance to meet their burden of proof. 
Implicit in the substantial evidence standard of review is the view
that where a trier of fact is confronted with conflicting evidence
capable of supporting more than one conclusion, any conclusion
supported by that evidence is reasonable.  This is but another way
of recognizing that evidence susceptible to more than one conclu-
sion can logically produce different conclusions in the minds of
reasonable people.  The fact that we might have reached a different
result from that reached by the Commission is immaterial and does
not warrant reversal if reasonable people could have reached the
same result that the Commission reached.
     I cannot agree that reasonable persons who were confronted
with proof showing that appellant made no effort to pursue
retraining, failed to comply with repeated attempts by doctors and
physical therapists to increase her working hours, and promptly
applied for unemployment benefits when the layoff occurred could
not have concluded that she failed to prove that her capacity to
earn her regular wages had been permanently diminished due to the
compression fracture sustained at work. Indeed, it is noteworthy
that the opinion of the Court does not even suggest that the
majority holds this view, although that is the upshot of the
result.  Appellant may have a diminished capacity to earn due to
her refusal to aggressively pursue the retraining opportunity.  Her
earning capacity may be diminished because she is unwilling to wean
herself from the back brace that doctors have told her to put
aside.  Her capacity may be diminished because she is motivated to
receive whatever sympathy that one might have for a person claiming
to be disabled.  But the entity responsible for deciding if she has
sustained a permanent diminution in her earning capacity due to the
compensable injury is manifestly the Arkansas Workersþ Compensation
Commission, not the Arkansas Court of Appeals.
     The Seventy-Ninth General Assembly apparently contemplated the
very type of judicial disregard of the substantial evidence
standard and result-oriented decision-making that this case
demonstrates when it enacted Act 796 of 1993, and made what many
observers may deem drastic changes in Arkansas workersþ compensa-
tion law.  The General Assembly left no doubt why it deemed the
changes necessary, because its motivation is bluntly stated at Ark.
Code Ann.  11-9-1001 (Repl. 1996):
The Seventy-Ninth General Assembly realizes that the
Arkansas workersþ compensation statutes must be revised
and amended from time to time.  Unfortunately, many of
the changes made by this act were necessary because
administrative law judges, the Workersþ Compensation
Commission, and the Arkansas courts have continually
broadened the scope and eroded the purpose of the
workersþ compensation statutes of this state. . . .  In
the future, if such things as the statute of limitations,
the standard of review by the Workersþ Compensation
Commission or courts . . . or the scope of the workersþ
compensation statutes need to be liberalized, broadened,
or narrowed, those things shall be addressed by the
General Assembly and not be done by administrative law
judges, the Workersþ Compensation Commission, or the
courts.  (Emphasis added.)

     The decision reached in this case is a gross violation of the
substantial evidence standard of review that has existed in this
state since 1939 when our workersþ compensation scheme took effect. 
The majority explains its decision by relying upon an observation
made by the administrative law judge that appellant's claim for
permanent disability benefits for diminution of her earning
capacity appeared premature.  The law judge made that observation
because appellant had not been retrained and had not returned to
gainful employment.  The result reached by the majority appears
prompted by the concern that the Commission prematurely addressed
the wage loss disability question, and the appeal is disposed of by
remanding the case to the Commission so that the parties may
develop and present proof about appellant's training and employ-
ment.
     The flaw in that reasoning is that appellant did not object to
the wage loss issue being adjudicated.  To the contrary, she sought
the hearing and put this very issue squarely before the Commission. 
She had ample opportunity to produce whatever proof she could
present on the wage loss issue, and by doing so, she was essential-
ly opting to forego rehabilitation.  That may have been unwise, but
if so, the Court of Appeals has no obligation or right to insulate
appellant from the logical consequences of her folly.  Moreover, we
should not require the winning party to endure the risks, costs,
and other burdens of another hearing on the same issue of appellan-
t's wage loss when no one objected to the first hearing before the
Commission and no one (including appellant) has made the Commissio-
n's decision to proceed with the hearing an issue for appeal.
     We have consistently refused to consider issues on appeal that
were not raised below, and the majority has cited no authority for
the proposition that a party who knowingly and purposely presents
a claim for adjudication can object about the claim being decided. 
The decision reached is a flagrant departure from one of the most
basic principles of appellate review -- that failure to make a
timely and effective objection at the trial level bars appellate
review.
     Like Athena, who was born fully grown and clad in armor from
the brow of Zeus, the idea that the Commission prematurely decided
appellant's wage loss claim has sprung from the mind of the
majority.  The employer must find it amazing, but not amusing, that
its judges became its adversaries.
     I respectfully dissent from the result that is reached, and
the reasoning employed to obtain it.
     Jennings, C.J., joins in this dissent.