Jami Harris v. City of Fayetteville and Arkansas Municipal League

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ca05-177

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION I

JAMI HARRIS

APPELLANT

V.

CITY OF FAYETTEVILLE AND ARKANSAS MUNICIPAL LEAGUE

APPELLEES

CA05-177

SEPTEMBER 14, 2005

APPEAL FROM THE WORKERS' COMPENSATION COMMISSION

[NO. F211817]

AFFIRMED

Sam Bird, Judge

Jami Harris injured his back on August 5, 2002, while loading newspapers during the performance of his employment at appellee City of Fayetteville's solid waste recycling division. The city and its insurance carrier, appellee Arkansas Municipal League, accepted the injury as compensable under our workers' compensation statutes and agreed to a permanent partial impairment rating for Harris of seven percent to the body as a whole.

A hearing was held before an administrative law judge on August 26, 2003, to determine entitlement to a rehabilitation program. The law judge found that Harris's re-entry into school seeking an elementary education degree was reasonable and that the program fit within his limitations, and appellees were ordered to provide rehabilitation benefits to Harris. The Workers' Compensation Commission reversed, explaining in pertinent part:

The record shows that the respondent-employer offered the claimant re-employment assistance. Pursuant to Ark. Code Ann. § 11-9-505(b)(1), therefore, the Full Commission finds that the claimant did not prove he was entitled to a program of vocational rehabilitation.

Harris appeals the denial of his claim for vocational rehabilitation, contending (1) that the Commission errantly indicated that he had been given re-employment assistance and therefore was not entitled to vocational rehabilitation, and (2) that there is no substantial evidence to support the findings of the Commission. Appellees respond that substantial evidence supports the Commission's findings that the city provided Harris with re-employment assistance such that Harris was not entitled to expenses and other costs of vocational rehabilitation. We address Harris's two points as one, as appellees have done, and we affirm the Commission's decision.

Under Ark. Code Ann. § 11-9-505 (Repl. 2002), an employee who is entitled to compensation benefits for a permanent disability may also be eligible for rehabilitation benefits:

(b)(1) In addition to benefits otherwise provided for by this chapter, an employee who is entitled to receive compensation benefits for permanent disability and who has not been offered an opportunity to return to work or reemployment assistance shall be paid reasonable expenses of travel and maintenance and other necessary costs of a program of vocational rehabilitation if the commission finds that the program is reasonable in relation to the disability sustained by the employee.

(Emphasis added.) The approval or disapproval of a rehabilitation program is a matter within the discretion of the Commission. Cossenerry v. McCroskey Sheet Metal, 6 Ark. App. 177, 639 S.W.2d 518 (1982).

Harris contends that the Commission failed to distinguish between vocational rehabilitation that was provided to him by the State of Arkansas Rehabilitation Program and the statutory obligation of the city to provide vocational rehabilitation. He complains that the Commission "misconstrued re-employment assistance for vocational rehabilitation."1 He bases his arguments upon the evidence before the Commission: Harris's own testimony; a functional-capacity evaluation of January 16, 2003, that was ordered by his treating physician, Dr. James Blankenship; reports by Dale Thomas, a vocational consultant retained by appellee Arkansas Municipal League; testimony of Michele Bechold, a human resources director for appellee City of Fayetteville; and various documents.

Harris asserts that the city offered no vocational rehabilitation even though a job-analysis expert concluded that such a plan would be beneficial. He notes that his previous employment positions involved physical exertion such as lifting, and standing or sitting for long periods, which were beyond the restrictions of his functional-capacity evaluation; and that he was terminated from his position at the city because there was no position available within his physical requirements. He notes that the functional-capacity evaluation shows that he was unable to return to his former position, and he points to a recommendation in the evaluation that he would benefit from a vocational rehabilitation program. He notes that the city referred him to a vocational consultant director who, in turn, directed him to Arkansas State Vocational Rehabilitation to apply for services and school funding.

Harris complains that the city, through its human resources director, merely gave him a list of the city's open jobs that were available to anyone and sent him to Dale Thomas, the vocational consultant with the Municipal League. Harris complains that Thomas gave him a list of employers but no indication of specific positions or job openings, and that Thomas did not provide Harris with a rehabilitation plan despite stating that he needed one. Harris notes his own testimony that he was turned down when he applied for two positions with the city and that he contacted twelve possible employers from the list of occupational options and possible job leads.

The Commission set forth the following basis for finding that Harris did not prove entitlement to a program of vocational rehabilitation:

[The] Commission finds that the claimant was offered re-employment assistance. ... A functional capacity evaluation in January 2003 indicated that the claimant could perform restricted work duties. Although the claimant did not undergo surgery, the respondents accepted a 7% anatomical impairment rating assigned by Dr. Blankenship. The claimant began working with Dale Thomas, the vocational consultant, in February 2003. Mr. Thomas recommended a transferable skills analysis, job-seeking skills, and job-search assistance. The claimant did not leave the respondents' employment until March 3, 2003.

The record indicates that Mr. Thomas diligently and in good faith provided re-employment assistance to the claimant. The claimant followed up with some of the job contacts provided by Mr. Thomas. However, the claimant subsequently began attending school with funding provided by Arkansas Rehabilitation Services. The claimant testified at hearing that the Department of Human Services provided fullfunding for books and tuition. The record indicates that the respondents provided the claimant with re-employment assistance, so that the claimant is not entitled to a program of vocational rehabilitation at the respondents' expense.

When an appeal is taken from the denial of a claim by the Workers' Compensation Commission, the substantial-evidence standard of review requires that we affirm the Commission's decision if its opinion contains a substantial basis for the denial of relief. Dalton v. Allen Eng'g Co., 66 Ark. App. 201, 989 S.W.2d 543 (1999). In determining the sufficiency of the evidence to support the findings of the Commission, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission's findings, and we affirm if those findings are supported by substantial evidence. Winslow v. D&B Mech. Contrs., 69 Ark. App. 285, 13 S.W.3d 180 (2000). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Dalton, supra. The question on appeal is not whether the evidence would have supported findings contrary to the ones made by the Commission; there may be substantial evidence to support the Commission's decision even though we might have reached a different conclusion if we sat as the trier of fact or heard the case de novo. Woodall v. Hunnicutt, 340 Ark. 377, 12 S.W.3d 630 (2000).

We find no similarity in the facts of the present case and those of Second Injury Fund v. Stephens, 62 Ark. App., 255, 970 S.W.2d 331 (1998),where the claimant was a welder with an eighth-grade education and this court found no evidence that a plan of rehabilitation had been offered. Harris's work history, as revealed through his testimony and resume, shows that he had been a chemical inspector for Conoco, Inc., in 2000-2001; an automotive technician for J&B Automotives, which he and his uncle owned from 1996-2000; and a crew supervisor for fifteen or more employees at Lowe's Home Center from 1993-1996. His resume listed the following education: iTec Technologies at Fayetteville, Arkansas, A+ Certificate, Microsoft Certified Engineer; San Jacinto Jr. College at Houston, Texas, Associates in Automotive Technology; and Texas Southern University at Houston, Associates in Electronics. "Capabilities" shown on his resume were basic networking services; installation, configuration, and upgrading; diagnosing and troubleshooting; preventive maintenance; and utilizing Windows 95, Microsoft Office 2000 (Excel, Word and Outlook), Internet. Harris had earned over sixty hours credit from Texas Southern, he was currently enrolled at Northwest Arkansas Community College in education, he planned to transfer all his credits to the University of Arkansas, and his vocational plan was to become an elementary education teacher and coach.

Reports of Dale Thomas show that Thomas met with Harris and conducted an analysis of transferable skills based upon Harris's work history and residual abilities. Thomas wrote in a letter of March 28, 2003, that the transferable-skills analysis produced numerous occupational options; that he gave Harris a list of potential employers; and that Harris, after being directed by Thomas to Arkansas State Vocational Rehabilitation, obtained school funding approval through the state agency and intended to start college in the summer. Thomas's letter also stated:

I produced a list of businesses in the region that may employ people in the jobs identified through the skills analysis. The list includes contact information, number of employees, and annual sales statistics. Mr. Harris was provided with this information so that he could contact those employers and inquire about job openings.

In addition to conducting an analysis using skills from past work, I conducted an analysis using skills acquired through training. ...

I developed a list of occupations and potential employers from this analysis. I gave the claimant a copy of the information and suggested that he also make contact with those employers and inquire about work.

To summarize, the claimant has skills from past work that transfer to other physically appropriate occupations. Labor Force Growth Projections suggest an increase in many of those occupations. Average wages range from $12.00-12.99 per hour. The claimant has been given an extensive list of potential employers to contact who may have jobs that use his skills from past work and training.

The letter listed instructions and information that Thomas had given Harris to assist him with seeking a new job. Thomas noted that it had been hard to maintain telephone contact with Harris, who did not return calls in a timely manner, and that this had made it difficult for Thomas to assist him.

Here, we hold that Thomas's letter of March 2003 and the other evidence summarized above constitute substantial evidence to support the Commission's finding that Harris was offered re-employment assistance. Harris has presented no convincing authority or argument that appellees were required to do more. We further hold that the opinion of the Commission displays a substantial basis for the denial of his claim for vocational rehabilitation.

Affirmed.

Baker and Roaf, JJ., agree.

1 Harris relies in part on four questions to be answered in determining rehabilitation under Tackett v. Hickory Springs Mfg. Co., WCC C715817 (1979), which the administrative law judge discussed in the present case. Opinions of the Commission, however, are not binding on this court and have no precedential value. See Taylor v. Pfeiffer Plbg. & Htg. Co., 8 Ark. App. 144, 648 S.W.2d 526 (1983). Nor will we review arguments in Harris's brief that are based on the decision of the law judge.