Cindy Mullen v. Nettleton Public Schools and Risk Management Resources

NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

OLLY NEAL, Judge

DIVISION III

CA02-309

APRIL 9, 2003

CINDY MULLEN AN APPEAL FROM THE ARKANSAS APPELLANT WORKERS' COMPENSATION

v. COMMISSION [E710026]

NETTLETON PUBLIC SCHOOLS

RISK MANAGEMENT RESOURCES

AFFIRMED

APPELLEE

This is an appeal from a decision of the Workers' Compensation Commission denying appellant's claim for loss-wage benefits. We conclude that substantial evidence supports the Commission's decision; therefore, we affirm.

The facts in this case are as follows. Appellee, Nettleton Public Schools, employed appellant, Cindy Mullen, as a full-time cook and part-time bus driver. On June 5, 1997, appellant sustained a compensable left shoulder injury while working in the school cafeteria. As a result, appellant underwent two surgeries to her left shoulder and was off work for over a year. Appellee paid all appropriate total disability and permanent partial disability benefits. Appellant returned to work in October 1998; thereafter, on December 15, 1998, Dr. David Collins, appellant's orthopedic surgeon, assigned appellant an eleven (11%) percent whole body impairment rating and ended her healingperiod; appellee accepted and paid the eleven (11%) percent whole body permanent impairment rating. Dr. Collins noted that appellant could return to work "without restrictions." When she returned to work, appellant complained that she continued to suffer pain in her left shoulder; therefore, she began seeing Dr. Terence Braden once a week. Dr. Braden placed appellant on a light duty restriction. On February 4, 1999, appellant resigned from her position in the cafeteria. Thereafter, appellant's work as a bus driver increased and she was given the opportunity to do vo-tech work. She testified that she was given "first shot at the vo-tech driving, but I had to turn some of it down."

Appellant filed a claim for additional wage-loss disability benefits. She argued to the administrative law judge (ALJ) that she sustained a wage-loss disability in excess of the eleven (11%) percent impairment, in an amount to be determined by the ALJ, and that an attorney's fee should attach to any additional benefits awarded. Appellee controverted all permanent disability benefits beyond that impairment rating.

At the hearing, appellant's supervisor, Vickie Henderson, testified that she did not require appellant to lift anything heavy and that appellant's co-workers assisted her if she needed any help. Appellant echoed that "[i]n the cafeteria someone was always available to help me lift and do the heavy work." Additionally, appellant acknowledged that "no doctor ever gave me a written report restricting my bus driving." Following the hearing, the ALJ denied an award of additional benefits, and the full Commission affirmed that decision. On appeal, appellant argues that (1) the Commission erred in determining thatshe was not entitled to wage-loss benefits, and (2) the Commission erred in determining that appellee proved that it provided her with a bona fide and reasonable obtainable offer of employment pursuant to Ark. Code Ann. §11-9-522 (Repl. 2002).

The appellate court affirms the Workers' Compensation Commission if its decision is supported by substantial evidence; substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Emerson Elec. v. Gaston, 75 Ark. App. 232, 58 S.W.3d 848 (2001). The question is not whether the evidence would have supported findings contrary to those made by the Workers' Compensation Commission; there may be substantial evidence to support the Commission's decision even though the appellate court might have reached a different conclusion had it sat as the trier of fact or heard the case de novo. Sapp v. Phelphs Trucking, Inc., 64 Ark. App. 221, 984 S.W.2d 817 (1998). The appellate court views the evidence in the light most favorable to the findings of the Commission and gives the testimony its strongest probative force in favor of the action of the Commission; if reasonable minds could reach the Commission's conclusion, the appellate court must affirm its decision. Emerson Elec. v. Gaston, supra.

The wage-loss factor is the extent to which a compensable injury has affected the claimant's ability to earn a livelihood. Emerson Elec. v. Gaston, supra. To be entitled to any wage-loss disability benefit in excess of permanent physical impairment, a claimant must first prove, by a preponderance of the evidence, that he or she sustained permanent physical impairment as a result of a compensable injury. Wal-Mart Stores,Inc. v. Connell, 340 Ark. 475, 10 S.W.3d 727 (2000). 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. Emerson Elec. v. Gaston, supra. 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, she 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. Ark. Code Ann. § 11-9-522(b)(2) (Repl. 2002). The employer or his worker's compensation insurance carrier has 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 the accident. Ark. Code Ann. § 11-9-522(c)(1) (Repl. 2002). In considering factors that may affect an employee's future earning capacity, the appellate court considers the claimant's motivation to return to work, since a lack of interest or a negative attitude impedes the court's assessment of the claimant's loss of earning capacity. Emerson Elec. v. Gaston, supra.

Appellant argues that the Commission, in simply adopting the findings of the ALJ, failed to consider the relevant factors set forth in Ark. Code Ann. § 11-9-522(b)(1) (Repl. 2002) when determining that she failed to prove by a preponderance of the evidence that she sustained any permanent disability in excess of her permanent impairment. However,appellant appears to have misunderstood the statute. The Commission is not required to consider the factors listed in section 11-9-522(b)(1) unless the employer or his workers' compensation insurance carrier failed to meet the burden of proving that it offered the employee a bona fide offer to be employed. See Ark. Code Ann. §§ 11-9-522(b)(2) and (c)(1) (Repl. 2002). The appellee met its burden in this instance; therefore, the Commission was not required to consider the enumerated factors in section 11-9-522(b)(1).

By offering appellant back her former job, appellee established that it had, pursuant to section 11-9-522(b)(2), presented appellant with a bona fide and reasonably obtainable offer to be re-employed at equal or greater wages than she was receiving before the accident. Additionally, appellant acknowledged that after she resigned from the cafeteria job, she was given "first shot" at any additional bus driving jobs that arose at an even higher rate of pay; however, appellant refused some of those jobs, citing shoulder difficulty. At no time did Dr. Braden limit appellant's driving. In fact, in April 1999, Dr. Braden stated in his notes that:

Ms. Mullen is to return to her work environment as a bus driver. I see no reason for her not to be in that work environment. I am uncertain of what would occur with her left shoulder if she were to return to the heavy lifting environment of the kitchen area, and since she has had left rotator cuff surgery X2 in the past, I believe that the current work of bus driving would be more appropriate.

Further, in a letter dated June 5, 2000, Dr. Braden stated that:

It would be this examiner's opinion, within a reasonable degree of medical certainty, that Ms. Mullen should not return to a heavy lifting or moderate lifting environment in a kitchen or any other aspect that will require continued use or heavy to medium use of the shoulder. Rather, her current position as a bus driver appears to be appropriate and should continue.

We conclude that substantial evidence supports the Commission's determinations that appellant was not entitled to wage-loss benefits and that appellee provided appellant with a bona fide and reasonably obtainable offer of employment; accordingly, we affirm.

Affirmed.

Gladwin and Baker, JJ., agree.