Torrey v. City of Fort Smith
Annotate this Case
Edward TORREY v. CITY of Fort Smith
CA 96-185 ___ S.W.2d ___
Court of Appeals of Arkansas
Division I
Opinion delivered December 11, 1996
1. Workers' compensation -- review of decisions -- substantial
evidence defined. -- 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 findings of the Commission
and upholds those findings if they are supported by
substantial evidence; substantial evidence is that which a
reasonable person might accept as adequate to support a
conclusion.
2. Statutes -- interpretation of -- basic rule of statutory
construction. -- The beginning point in interpreting a statute
is to construe the words just as they read and to give them
their ordinary meaning; the basic rule of statutory
construction is to give effect to the intent of the
legislature, making use of common sense; statutes relating to
the same subject should be read in a harmonious manner, if
possible.
3. Workers' compensation -- legislative intent clear -- worker
should be allowed to reenter work force. -- The legislative
intent that the injured worker be allowed to reenter the work
force permeates the language of sections of the Workers'
Compensation Act.
4. Workers' compensation -- applicability of Ark. Code Ann. 11-
9-505 (a)(1996) -- prerequisites. -- Before Ark. Code Ann.
11-9-505(a) applies several requirements must be met, the
employee must prove by a preponderance of the evidence that he
sustained a compensable injury; that suitable employment which
is within his physical and mental limitations is available
with the employer; that the employer has refused to return him
to work; and, that the employer's refusal to return him to
work is without reasonable cause.
5. Workers' compensation -- Commission's narrow interpretation of
reasonable cause allowed employer to nullify stated
legislative purpose -- appellee made no real effort to
facilitate appellant's reentry into workplace -- case reversed
and remanded. -- Where appellant proved that he suffered a
compensable injury; that there was suitable employment within
his restrictions available with his employer, and that the
employer refused to return him to work because other
applicants were more qualified, the appellate court determined
that appellee's reason for not rehiring appellant was
unreasonable and the Commission's finding that reasonable
cause existed for not rehiring appellant was in error; no
effort was made on the part of appellee to assess appellant's
skills or to offer him assistance to enhance his skills so as
to better facilitate his re-entry into the work place; Ark.
Code Ann. 11-9-505 (a) requires that when an employee who
has suffered a compensable injury attempts to re-enter the
work force the employer must attempt to facilitate the re-
entry into the work force by offering additional training to
the employee, if needed, and reclassification of positions, if
necessary; the case was reversed and remanded on this issue.
6. Workers' compensation -- Commission's finding in error --
period of refusal lasts as long as employer does business. --
The Commission's finding that the period of refusal lasts only
until a position is filled was in error; the period of refusal
lasts as long as the employer is doing business not to exceed
the one-year limit for payment of additional benefits.
7. Workers' compensation -- request for change of physician
properly denied -- Commission vested with discretion to make
such determination. -- Appellant's assertion that the
Commission erred in denying his request for a change of
physician was without merit where the Commission's decision to
not allow a change of physician was based on the fact that
appellant offered no compelling reason to support his request;
the Commission is clearly vested with discretion to approve or
disapprove any change of physician.
Appeal from Arkansas Workers' Compensation Commission;
Court; reversed and remanded in part; affirmed in part.
Walker Law Firm, by: Eddie H. Walker, Jr., and William J.
Kropp, III, for appellant.
Daily, West, Core, Coffman & Canfield, P.L.L.C., by: Eldon F.
Coffman and Douglas M. Carson, for appellee.
Olly Neal, Judge.
Edward Torrey appeals from an order of the Arkansas Workers'
Compensation Commission denying his entitlement to additional
workers' compensation benefits pursuant to Ark Code Ann 11-9-505
(a)(1)(1996) and his request for a change of physician. For
reversal of the Commission's order, appellant contends that he is
entitled to additional benefits because appellee refused to return
him to work without reasonable cause and that he is entitled to a
change of physician.
Appellant was employed by appellee, City of Fort Smith, in its
sanitation department, when he sustained an admittedly compensable
injury to his back on October 10, 1993. Appellant was treated at
the emergency room by Dr. Mumme. Appellant was diagnosed with a
right lateral disc herniation at L4-5 and eventually referred to
Dr. Michael Sandefer who prescribed a conservative course of
treatment. Appellant was released from Dr. Sandefer's care on
March 1, 1994, with a 5% permanent impairment rating to the body as
a whole, which was accepted by appellee, and restrictions that
included avoiding repetitive bending and lifting over 25 to 30
pounds.
Appellant attempted to return to work for appellee but was
advised that there were no positions available that would meet his
job restrictions. Appellant applied for dispatcher's positions
with the City's sanitation and police departments. Appellant was
not hired to fill either position. Appellant then sought
additional benefits pursuant to Ark. Code Ann. 11-9-505(a)(1)
(1996).
The Administrative Law Judge found that appellant was entitled
to additional benefits because the City refused to return him to
work without a reasonable cause for doing so and approved
appellant's request for a change of physician. The City appealed
to the Workers' Compensation Commission which, upon conducting a de
novo review of the matter, reversed the decision of the
Administrative Law Judge. Appellant now seeks our reversal of the
Commission's order.
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 findings of
the Commission and uphold those findings if they are supported by
substantial evidence. Arkansas Highway & Transp. Dept. v.
McWilliams, 41 Ark. App. 1, 846 S.W.2d 670 (1993). 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).
In denying appellant's entitlement to additional benefits
pursuant to Ark. Code Ann. 11-9-505, the Commission noted that
the Commission had been admonished to not broaden, liberalize, or
narrow the workers' compensation statutes. Ark. Code Ann. 11-9-
1001 (Repl. 1996).
The case at bar presents an issue of first impression for this
court, because what constitutes "reasonable cause" as used in Ark.
Code Ann. 11-9-505(a)(1) has yet to be construed. The beginning
point in interpreting a statute is to construe the words just as
they read and to give them their ordinary meaning. Arkansas Dept.
of Health v. Westark Christian Action Council, 322 Ark. 440, 910 S.W.2d 199 (1995). The basic rule of statutory construction is to
give effect to the intent of the legislature, making use of common
sense. Office of Child Support Enforcement v. Harnage, 322 Ark.
461, 910 S.W.2d 207 (1995). Statutes relating to the same subject
should be read in a harmonious manner, if possible. Mecco Seed v.
London, 47 Ark. App. 121, 886 S.W.2d 882 (1994).
We begin our analysis of this matter by examining the stated
purpose of Act 793 of 1993 which is "to pay timely temporary and
permanent disability benefits to all legitimately injured workers,
...to pay reasonable and necessary medical expenses resulting
thereafter and the return of the worker to the work place. See
Ark. Code Ann. 11-9-101 (Repl. 1996).
Pursuant to Ark. Code Ann. 11-9-505(a)(1)(2):
any employer who without reasonable cause
refuses to return an employee to work, where
suitable employment is available within the
employee's physical and mental limitations,
upon orders of the Commission, and in addition
to other benefits, shall be liable to pay to
the employee the difference between benefits
received and the average weekly wages lost
during the period of such refusal, for a period
not exceeding one (1) year. In determining
the availability of employment, the continuance
in business of the employer shall be considered,....
Ark. Code Ann. 11-9-505 (4)(d) provides: "The purpose and
intent of this section is to place an emphasis on returning the
injured worker to work, while still allowing and providing for
vocational rehabilitation programs when determined appropriate by
the Commission."
In Ark. Code Ann. 11-9-1001, which is entitled the
legislative declaration, the Seventy-Ninth General Assembly
reemphasized that, "the major and controlling purpose of workers'
compensation is to pay timely temporary and permanent disability
benefits to all legitimately injured workers that suffer an injury
or disease arising out of and in the course of their employment, to
pay reasonable and necessary medical expenses resulting therefrom,
and then return the worker to the work force."
In the case at bar, appellant suffered a compensable injury
while in the employ of appellee. After appellant's release from
the care of his physician he returned to his employer in an attempt
to resume his employment. After learning that there were no
positions available that would accommodate the restrictions placed
on his work activities by his treating physician, appellant was
encouraged to apply for other positions within the City of Fort
Smith, which employs over 600 persons. Although appellant was
afforded the opportunity to interview for dispatcher positions
within the police and sanitation departments, he was not hired for
either.
In reviewing pertinent sections of the Act, we find that the
legislative intent that the injured worker be allowed to reenter
the work force permeates the language of sections of the Act. See,
e.g., Ark. Code Ann. 11-9-101, 11-9-505, 11-9-1001 (Repl. 1996).
Keeping in mind that we must make use of our common sense in
construing the statutes in question, and that we must construe
related statutes in a harmonious manner, we find that the
Commission's interpretation of what constitutes reasonable cause
for not returning an employee is erroneous.
Before Ark. Code Ann. 11-9-505(a) applies several
requirements must be met. The employee must prove by a
preponderance of the evidence that he sustained a compensable
injury; that suitable employment which is within his physical and
mental limitations is available with the employer; that the
employer has refused to return him to work; and, that the
employer's refusal to return him to work is without reasonable
cause.
In the present case, appellant has proved that he suffered a
compensable injury; that there was suitable employment within his
restrictions available with his employer, and that the employer
refused to return him to work. A more difficult question arises
when we question whether appellee's reason for not rehiring
appellant was unreasonable. Appellee's stated reason for not
hiring appellant to fill either position was that a "more
qualified" individual was hired instead. The Commission accepted
this explanation and found that the appellee had demonstrated that
reasonable cause existed for not rehiring appellant. Further, the
Commission noted that once a position is filled there is no longer
suitable employment available to be the basis of the employer's
refusal to return the employee to work, as provided in this
statute.
We believe that the Commission's interpretation is too narrow
to allow the true intent of the legislature to be realized. The
Commission made a finding that the employer had shown reasonable
cause for not returning an injured employee to work, where the
employer stated that a "more qualified" person was hired. In
accepting the employer's explanation, the Commission, in effect,
allows the employer to nullify the stated legislative purpose while
exercising minimal effort to return the employee to work.
Likewise, the Commission's interpretation allows subjective
reasoning to factor into what constitutes reasonable cause, whereas
an objective standard is more compatible with the legislative
intent and purpose.
At a minimum Ark. Code Ann. 11-9-505 (a) requires that when
an employee who has suffered a compensable injury attempts to re-
enter the work force the employer must attempt to facilitate the
re-entry into the work force by offering additional training to the
employee, if needed, and reclassification of positions, if
necessary. Further, we do not agree with the Commission's finding
that the period of refusal lasts only until a position is filled.
We believe that the better rule is that the period of refusal lasts
as long as the employer is doing business not to exceed the one-
year limit for payment of additional benefits.
Appellee employs over 600 persons, yet the evidence presented
fails to demonstrate that any effort was made on the part of
appellee to assess appellant's skills or to offer him assistance to
enhance his skills so as to better facilitate his re-entry into the
work place.
Appellant's final asserted point is that the Commission erred
in denying his request for a change of physician from Dr. Sandefer,
a neurosurgeon, to Dr. Dodson, a general practitioner. Ark. Code
Ann. 11-9-514 (2)(A)(Repl. 1996) provides: If the employer
selects a physician, the claimant may petition the Commission one
(1) time only for a change of physician, and, if the Commission
approves the change, with or without a hearing, the Commission
shall determine the second physician and shall not be bound by
recommendations of claimant or respondent.
Appellant testified that he requested a change of physician
because Dr. Dodson was his family doctor and could make
adjustments. The Commission found that the wording of the statute
clearly contemplates that the Commission will approve or disapprove
any changes of physician. Because the statute contains the phrase
"if the Commission approves the change," we believe that the
Commission is vested with discretion to approve or disapprove any
change of physician. Upon review of the case at bar, we cannot
find that the Commission's decision to not allow a change of
physician was in error, especially in light of the fact that
appellant offered no compelling reason, other than saying that Dr.
Dodson could make adjustments, to support his request for a change
of physician.
We therefore reverse and remand for an award of benefits
consistent with this opinion.
Reversed and remanded in part, affirmed in part.
Stroud and Rogers, JJ., agree.
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