Reginald L. Pickney v. L. A. Darling Company et al.

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION I

REGINALD L. PICKNEY

APPELLANT

V.

L. A. DARLING COMPANY, ET AL.

APPELLEES

CA04-332

February 23, 2005

APPEAL FROM THE ARKANSAS WORKERS' COMPENSATION COMMISSION [NO. F107108]

AFFIRMED

John Mauzy Pittman, Chief Judge

The appellant in this workers' compensation case sustained a compensable back injury on June 11, 2001, while employed by appellee as a factory production supervisor. Appellee paid for appellant's medical care and, after a brief period off work that ended on June 18, 2001, appellant returned to work without restriction. Subsequently, appellant's physician restricted appellant to working forty hours per week (rather than his usual fifty hours) for the period of August 3 to August 23, 2001. Appellee honored that restriction, but terminated appellant on August 17, 2001. Appellant subsequently filed a claim with the Arkansas Workers' Compensation Commission, alleging that appellee had refused to return him to available work without reasonable cause and asserting that he was therefore entitled to wage-loss benefits under Ark. Code Ann. § 11-9-505(a). After a hearing, the Commission found that appellant failed to prove that appellee unreasonably failed to return him to work, and this appeal followed.

On appeal, appellant argues that the Commission erred in failing to find that appellee refused to return him to work without reasonable cause. We affirm.

In 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 they are supported by substantial evidence, i.e., evidence that a reasonable person might accept as adequate to support a conclusion. Carman v. Haworth, Inc., 74 Ark. App. 55, 45 S.W.3d 408 (2001). We will not reverse the Commission's decision unless we are convinced that fair-minded persons with the same facts before them could not have reached the conclusions arrived at by the Commission. Wal-Mart Stores, Inc. v. Sands, 80 Ark. App. 51, 91 S.W.3d 93 (2002). Questions of weight and credibility are within the sole province of the Commission, which is not required to believe the testimony of the claimant or of any other witness, but may accept and translate into findings of fact only those portions of the testimony it deems worthy of belief. Strickland v. Primex Technologies, 82 Ark. App. 570, 120 S.W.3d 166 (2003). Once the Commission has made its decision on issues of credibility, the appellate court is bound by that decision. Id.

Arkansas Code Annotated § 11-9-505(a) (Repl. 2002) is part of a statutory section dealing with the rehabilitation of injured workers. It provides that:

(a)(1) 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 Workers' Compensation 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 the refusal, for a period not exceeding one (1) year.

(2) In determining the availability of employment, the continuance in business of the employer shall be considered, and any written rules promulgated by the employer with respect to seniority or the provisions of any collective bargaining agreement with respect to seniority shall control.

Several requirements must be met before Ark. Code Ann. § 11-9-505(a) is applicable. The employee must prove by a preponderance of the evidence 1) that he has sustained a compensable injury, 2) that suitable employment within his physical and mental limitations is available with the employer, 3) that the employer refused to return him to work, and 4) that the employer's refusal to return him to work is without reasonable cause. Clayton Kidd Logging Co. v. McGee, 77 Ark. App. 226, 72 S.W.3d 557 (2002).

Here, the Commission's conclusion that the employer did not refuse to return appellant to work without reasonable cause was based on its finding that appellant's discharge was part of a company-wide layoff, prompted by adverse business conditions, where length of continuous service with the company was the controlling factor. On appeal, appellant argues that appellee should have taken a different view of seniority, stressing length of supervisory experience rather than total service, and therefore should have laid off another worker rather than appellant. We do not agree.

Section 11-9-505 establishes no rigid formula or set guidelines, but instead simply requires that a refusal to return an employee to work must not be unreasonable. Here, there was testimony that declining orders prompted layoffs; that the first round of layoffs took place shortly before appellant's injury; that a second round of layoffs for supervisory personnel was planned if conditions did not improve; that appellant had been tentatively selected as the production supervisor to be laid off if necessary because he had the least seniority at the company measured by total time employed; that conditions did not improve; and that appellant was therefore laid off. Given that the continuation in business of the employer is a valid consideration under the statute, we cannot say that the Commission erred in finding that appellant's termination was reasonable.

Affirmed.

Gladwin and Vaught, JJ., agree.