Baptist Health v. Karen Jean Cox

ca02-734

NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

OLLY NEAL, Judge

DIVISION III

CA02-734

FEBRUARY 19, 2003

BAPTIST HEALTH

AN APPEAL FROM THE ARKANSAS

APPELLANT WORKERS' COMPENSATION

v. COMMISSION [E709351]

KAREN JEAN COX AFFIRMED

APPELLEE

Baptist Health (Baptist) appeals from the decision of the Workers' Compensation Commission awarding temporary total-disability-benefits to appellee and further awarding benefits pursuant to Ark. Code Ann. § 11-9-505(a)(1) (Repl. 2002). Finding substantial evidence to support the Commission's decision, we affirm.

Appellee Karen Cox began working as a licensed practical nurse for Baptist in December of 1990. In July of 1997, Cox contracted an infectious disease in her left ear known as methicillin-resistant staph aureus (MRSA). Baptist accepted the injury as an occupational injury. Dr. Jerry Potts examined Cox and determined that due to the nature of her condition and her direct contact with patients, she should not return to work. Pursuant to Dr. Potts's order, Cox did not work during the period of July 25, 1997, through November 28, 1997. She returned to work in her regular employment capacity in November of 1997 after a culture came back negative for MRSA. Appellee suffered from sporadic "flare-ups" with corresponding periods of total incapacitation and directions to remain off work. Those periods were from September 14, 1998, through October 4, 1998; February 12, 1999, through March 17, 1999; May 10, 1999, through November 7, 1999; and January 7, 2000, through October 5, 2000. Appellee received temporary-total-disability benefits from Baptist during each of the aforementioned periods, with the exception of the last period, during which time she received temporary-total-disability benefits only through September 14, 2000. Appellee had three or four positive cultures for MRSA, with the last being in May of 1999. All subsequent cultures were negative for MRSA.

The evidence was that while on leave from Baptist appellee babysat her grandchildren and worked as a barber. She testified that she had a barber's license that she renewed annually. Appellee's husband owned a barber shop, and she acknowledged that she had gone to the shop and assisted her husband in cutting hair. Baptist hired a private investigator, Jimmy Dean Looney, to visit the shop to see if appellee worked in her husband's shop. Looney testified that on October 17, 2000, he entered the Amboy Barber Shop and had appellee cut his hair. Looney provided that appellee stated during their conversation that she "used to be a nurse but she had to quit because of an ear problem"; that she had been working at the barber shop "on and off for 11 years"; andthat she worked at the shop "usually Tuesdays, Fridays, and Saturdays."

Dr. Potts released appellee to return to work on October 5, 2000, provided, however, that she have no direct contact with patients. Upon release from Dr. Potts, appellee contacted her supervisor, Sandy Combs. Combs informed appellee that Baptist would assist her in finding a job. Brenda Edmondson, an employment specialist at Baptist, informed appellee that there were employment positions that did not involve direct patient care. Appellee testified that she applied for several of those positions, but had not been placed. Baptist contended that appellee was not hired because she limited the facility at which she would be willing to work and the salary she would be willing to accept. Prior to her compensable injury, appellee worked at the North Little Rock Baptist facility, earning $11.32 per hour. She acknowledged that her initial preference was to remain at a small hospital in North Little Rock rather than being placed at the larger Little Rock facility. Further, she does not dispute that she informed Ms. Edmondson that any position secured needed to pay around $10.50 or more per hour. Unable to secure work ninety days after her release, appellee was terminated on January 17, 2001.

Appellee filed a claim for workers' compensation benefits, contending that Baptist terminated her employment on January 17, 2001, without reasonable cause when it refused to return her to suitable employment where the same was available and that as a consequence she is entitled to benefits pursuant to Ark. Code Ann. § 11-9-505(a)(1) (Repl. 2002). Appellant argued that Cox had not shown entitlement to benefits over and above those already paid, that Cox was not entitled to benefits under Ark. Code Ann. §11-9-505(a)(1) (Repl. 2002), and that there was an overpayment of temporary-total-disability benefits made after May of 1999 for which it was entitled to a credit.

A hearing was held on June 20, 2001, to determine appellee's entitlement to additional benefits. On August 29, 2001, the ALJ issued an opinion wherein he held that appellee was entitled to temporary-total-disability benefits for the period covering July 25, 1997, through November 28, 1997; September 14, 1998, through October 4, 1998; February 12, 1999, through March 17, 1999; and May 10, 1999, through October 5, 2000, at the weekly compensation benefit rate of $275, as a result of her compensable injury. The ALJ further ordered and directed that Baptist pay benefits, not to exceed one year, pursuant to Ark. Code Ann. § 11-9-505(a)(1) (Repl. 2002) based on her average weekly wage of $412, less the $100 appellee approximately earned per week cutting hair. Baptist was further ordered to pay attorney's fees and all reasonably related medical, hospital, nursing, and other apparatus expenses, including medical-related travel, resulting from her injury. Baptist appealed this award to the Commission, which on April 25, 2001, affirmed the ALJ. This appeal followed.

When reviewing a decision of the Workers' Compensation Commission, the appellate court views the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission and affirms that decision if it is supported by substantial evidence. Clayton Kidd Logging Co. v. McGee, 77 Ark. App. 226, 72 S.W.3d 557 (2002). Substantial evidence is such evidence that a reasonable mind might accept as adequate to support a conclusion one way or another. Id. The Commission's decisionwill not be reversed unless it is clear that fair-minded persons, presented with the same facts, could not have reached the same conclusion. Id. In making our review, we recognize that it is the function of the Commission to determine the credibility of witnesses and the weight to be given their testimony. Watson v. Tayco, Inc., 79 Ark. App. 250, 86 S.W.3d 18 (2002).

Appellant argues first that Cox is not entitled to workers' compensation benefits pursuant to Ark. Code Ann. § 11-9-505(a)(1) (Repl. 2002). This statute provides:

Any employer who without reasonable cause refuses to return an employee who is injured in the course of employment to work, where suitable employment is available within the employee's physical and mental limitations, upon order 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.

Before Arkansas Code Annotated section 11-9-505(a)(1) (Repl. 2002) is applicable, the employee must prove by a preponderance of the evidence that (1) she has sustained a compensable injury; (2) suitable employment which is within her physical and mental limitations is available with the employer; (3) the employer refused to return her to work; and (4) the employer's refusal to return her to work was without reasonable cause. Clayton Kidd Logging Co. v. McGee, supra.

Baptist concedes that elements (1) through (3) are satisfied as the parties stipulated that Cox sustained a compensable injury; suitable employment within appellee's physical and mental limitations was available with Baptist; and Cox has not returned to work; however, Baptist argues that it would not characterize appellee's non-return to work as a"refusal" on its part. In its brief, Baptist argues that it

made every effort to try to find new employment for Cox within her doctor's restrictions and within the claimant's experience and background. Thirty pages of the Addendum include Ms. Edmondson's notes of her efforts to return Cox to work at Baptist. They are extensive and they clearly demonstrate that Baptist worked very hard to return Cox to work.

For instance, Ms. Edmondson scouted out sixteen jobs for Cox. Ms. Edmondson found three jobs that fit within Cox's medical restrictions, experience and qualifications: Telecommunications operator, film librarian, and information associate. However, Ms. Edmondson was quickly advised by Cox that she was not interested in those jobs as the salary [was] too low.

Cox not only placed limitations on her job search to jobs with certain salaries, she also put another limitation on the location of her new job. She advised Ms. Edmondson that she wanted to work in North Little Rock at the Baptist Hospital. Cox expressed to Ms. Edmondson that she "wanted to be at BMMC," "not work in the big hospital setting," and "felt too old to change from [a] small hospital to [a] big." When jobs became available that required some level of clerical skills, Cox outright rejected those types of jobs because she felt her clerical skills were lacking somewhat.

Because of her self-imposed limitations, while still employed with Baptist, Cox would only submit applications for two of the sixteen jobs scouted by Ms. Edmondson - ER Admissions Rep Two and Patient Account Rep One. Cox was not hired for the first job because another former employee who had worked at that job for five years and had greater experience for the position was hired as compared Cox who had no experience. Likewise for the second job, another more qualified applicant was apparently hired.

The Commission on its de novo review opined that

the claimant credibly testified that she had applied for three positions with the respondent-employer, but that she was not hired and was not told why she was not hired. The claimant testified that she "very much" wanted to return to work with the respondent, where she had been employed for over ten years. Although the claimant testified that she preferred to work at Baptist Medical Center in North Little Rock, the record shows that the claimant applied for the position of credit review analyst in Little Rock.

Furthermore, the case of Torrey v. City of Fort Smith, [55 Ark. App. 226, 934 S.W.2d 237 (1996)], discusses an employer's obligation to assist an employee to better facilitate the employee's return to the workplace and discusses an employee's purported justification in not hiring an injured employee, because theemployer instead chose to fill an open position with a `more qualified' applicant. The Court of Appeals explained in Torrey:

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.

* * *

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.

See, Torrey, at pp. 230-31.

As we interpret the Court of Appeals' holding in Torrey, an employer's refusal to place an injured employee into an available position merely because a "more qualified" candidate may exist does not constitute reasonable cause pursuant to Ark. Code Ann. § 11-9-505(a)(1). Furthermore, contrary to the suggestion of the respondents and the dissenting Commissioner in the presentcase, we understand that an employer does not fulfill its obligation of assisting an employee's re-entry to the workplace (1) simply by making the employee aware of job openings paying substantially less money than the employee was making at the time of the injury and (2) where the employer makes no attempt to return the employee to work in other job openings within the employee's physical and mental limitations that do pay a salary comparable to the employee's salary at the time of the injury. The respondents cite us to no authority, nor do we see merit in their suggesting, that the employer satisfied its Section 505(a) obligations by making the claimant aware of three low paying jobs, and/or that the claimant somehow waived her right to Section 505(a) benefits by not pursuing these low paying jobs. The Full Commission therefore affirms the Administrative Law Judge's finding in the present matter that the respondent-employer's refusal to return the claimant to work was without reasonable cause. We thus affirm the Administrative Law Judge's award of one year of additional compensation benefits, pursuant to Ark. Code Ann. § 11-9-505(a)(1).

Viewing the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission, we conclude that substantial evidence supports the Commission's decision; therefore, we affirm.

Seemingly, appellant argues in the alternative that Ark. Code Ann. § 11-9-505(a)(1) does not apply because appellee was not refused work, rather she was terminated for exceeding her FMLA leave of absence. Appellant cites us to Davis v. Dillmeier Enterprises, Inc., 330 Ark. 545, 956 S.W.2d 155 (1997), arguing that like in Davis, appellee's termination cannot be viewed as a refusal by Baptist to return her to work as she was terminated on January 17, 2001, because she had been on medical leave of absence for one year, the maximum time period. In Davis, the court concluded that "this case presents an issue of employer discrimination, rather than a situation where the employer has refused to return the injured employee to work." Here, the Commission determined that "[t]he instant matter does not include an issue of employerdiscrimination, which issue was present in Davis. Therefore, the Full Commission finds that the respondent's reliance on Davis v. Dillmeier has no merit in the present case. See, McGee v. Clayton Kidd Logging Company, Workers' Compensation Commission E904834 (March 1, 2001)." We agree.

Appellant argues next that appellee is not entitled to temporary-total-disability benefits beyond May of 1999. Temporary-total disability is that period within the healing period in which an employee suffers a total incapacity to earn wages. Poulan Weed Eater v. Marshall, 79 Ark. App. 129, 84 S.W.3d 878 (2002); K II Constr. Co. v. Crabtree, 78 Ark. App. 222, 79 S.W.3d 414 (2002). When an injured employee is totally incapacitated from earning wages and remains in his healing period, he is entitled to temporary-total disability. Id. The healing period ends when the employee is as far restored as the permanent nature of his injury will permit, and if the underlying condition causing the disability has become stable and if nothing in the way of treatment will improve that condition, the healing period has ended; the question of when the healing period has ended is a factual determination for the Commission that will be affirmed if it is supported by substantial evidence. Id.

"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) (Repl. 2002). For the purpose of defining disability, "any other employment" means any other employment in lieu of the one in which the employee was injured. Stevens v. Mountain Home Sch. Dist., 41Ark. App. 201, 203-04, 850 S.W.2d 335, 336 (1993) (where the appellant was working at two jobs, one part-time, and was injured on the part-time job and so unable to continue her work there, but did continue her other employment, the Commission's determination that because the appellant was earning wages at her other job in excess of what she earned from the part-time job she was not disabled pursuant to Ark. Code Ann. § 11-9-102(5) was in error); see also Wal-Mart Stores, Inc. v. Westbrook, 77 Ark. App. 167, 72 S.W.3d 889 (2002) (while appellee was able to earn wages as a minister during his healing period, he was entitled to temporary total disability benefits because he was working both jobs when he was injured, and his job as a minister was not "any other employment" undertaken in place of his employment at Wal-Mart).

Appellant argues that appellee cannot establish that she was both within her healing period and totally incapacitated from earning wages after May of 1999, first because she was not within her healing period during the time periods established by the undisputed testimony from Dr. Potts, her treating physician, that Cox did not test positive for MRSA cultures after May of 1999, and second because it is clear that appellee was out of her healing period after May of 1999 as the facts established that she was not totally incapacitated from earning wages during that time as she was working as a barber and babysitting her grandchildren.

The Commission, in determining that appellant was entitled to additional temporary- total-disability benefits, relied solely on the fact that the record indicates that appellee's treating physician, Dr. Potts, did not release her to return to work until October5, 2000. In a letter dated November 9, 1999, Dr. Potts stated:

It is my opinion that Mrs. Cox has permanent colonization of her left ear by Methicillin Resistant Staph Aureus. Normally, she has no symptoms with the left ear, but every few months, begins to have swelling and drainage in the left ear canal. We have cultured this several times and Methicillin Resistant Staph always is cultured out. Although the risk to patients that Mrs. Cox might care for is small, there is a real possibility that MRSA could be transferred to a patient under her care. I would, therefore, advise that she be given duties other than the direct care of patients.

Further, in a letter dated January 7, 2000, Dr. Potts wrote:

I do not think it would be safe for Mrs. Cox to work with patients again. If a patient contracted MRSA and no other source could be found, then Mrs. Cox and ultimately I would be blamed. ... Once her skin infection is not active, I think she certainly can work in a hospital environment, but not with direct involvement with patients.

While it is true that appellee worked in her husband's barber shop, the private investigator testified that appellee told him that she had been working at the barber shop "on and off for 11 years." Although not continually working for the barber shop, appellee did sporadically work in the capacity as a barber at the shop. She just happened to work there more so when she was unable to fulfill her duties at the hospital as a nurse. Like the claimants in Stevens v. Mountain Home Sch. Dist., supra, and Wal-Mart Stores Inc. v. Westbrook, supra, the appellee in this case maintained both jobs when she was injured. To account for the income she acquired from working as a barber, the ALJ offset her award by the $100 appellee earned per week cutting hair. Therefore, substantial evidence supports the Commission's award of temporary-total-disability benefits.

Affirmed.

Stroud, C.J., and Vaught, J., agree.