Ballesteros v. Tyson Poultry, Inc.
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ARKANSAS COURT OF APPEALS
DIVISION II
No. CA08-1390
RAFAEL BALLESTEROS
Opinion Delivered
APRIL 29, 2009
APPELLANT
APPEAL FROM THE ARKANSAS
WORKERS’ COMPENSATION
COMMISSION
[NO. F608166]
V.
TYSON POULTRY, INC. and TYNET
CORPORATION
APPELLEES
AFFIRMED
KAREN R. BAKER, Judge
Appellant Rafael Ballesteros challenges the Workers’ Compensation Commission’s
denial of benefits for a disputed period of time based upon the Commission’s finding that
appellant had falsified a prescription by altering the prescription refill number from a 0 to a
3, and that falsifying “work documents” is a legitimate company policy under which altering
the prescription justified appellant’s termination by appellees Tyson Poultry, Inc. and Tynet
Corporation (Tyson). Appellant argues that Tyson had no reasonable cause for termination
in that appellant was fired for an unproven, non-work-related criminal allegation. However,
the focus of the reasonable-cause analysis is on the employer’s rightful expectations of
appellant regarding the prescription and appellant’s willful disregard of the employer’s
interest in the alteration of the prescription. The altered prescription was directly related to
the employer’s legal duty to compensate appellant for all reasonable and necessary medical
treatment arising from a work-related injury. The employee’s alteration destroyed the
integrity of the record and directly affected the evaluation of the employer’s fulfillment of
its legal duty and business planning. Tyson had a right to expect appellant to respect the
integrity of the claims process. Accordingly, we find no error and affirm.
Appellant was a forty-two-year-old man who began working for Tyson in July 1998.
Over the years he performed various jobs. On June 25, 2006, he saw a water leak in a boiler
room. After he and a supervisor closed the water valves, appellant pushed a button to start
a pump in order to move the water. He felt a shock “all over” his body, momentarily lost
consciousness, and struck his left knee as he fell. After regaining consciousness, he could
not move his leg. Appellant testified that he was provided ice for his knee but not offered
any additional medical treatment at that time.
Although appellant was not scheduled to work the next day, he went to the nurse at
Tyson’s plant. As a result of that appointment, an evaluation by Dr. Moffitt was scheduled
for June 27, 2006. Dr. Moffitt noted that appellant’s knee was swollen and indicated that he
might have a displaced fracture of the distal femur. Because it was difficult to interpret the
x-ray, Dr. Moffit ordered a CT scan of the knee. Appellant was given crutches, medication,
and advised to avoid weight bearing on his left extremity. Dr. Moffitt also indicated that
appellant could return to work with Tyson with no weight bearing on his left leg. Appellant
returned to work sitting in a chair in a control room monitoring temperatures on a computer.
A CT scan performed on July 5, 2006, revealed a small amount of swelling, tripartite
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patella, and no acute fracture. Following the CT scan, appellant was evaluated by Dr.
Berestnev on July 12, 2006, and diagnosed with a left medial collateral ligament strain.
Exercises were recommended and appellant was advised to begin some weight bearing on
the leg. He was also given a short knee immobilizer. Significantly for this analysis, Dr.
Berestnev also prescribed pain medication. At the time Dr. Berestnev wrote the prescription,
appellant was accompanied by his daughter, Jasmine Ballesteros.
According to both
appellant’s and his daughter’s testimony, appellant handed the prescription to his daughter
and they drove to Walgreen’s to have it filled. Appellant stated that he turned in the
prescription to the pharmacist at Walgreen’s and waited more than one hour without the
prescription being filled. He explained that he was notified that a problem existed with the
prescription and he was to contact his employer.
The prescription form in question contains a space next to the notation “Refills.” A
“0” has an “X” marked through it with the numeral “3” written in. Dr. Berestnev’s office
indicated that the prescription had been altered and notified Tyson of the assessment. A
registered nurse in the clinic with Dr. Berestnev testified that she received a phone call from
the pharmacist at Walgreen’s regarding the suspicious prescription, then received a copy of
the document in question by fax, and subsequently forwarded the altered prescription by fax
to Tyson. She described the office procedure for altering a written prescription. The policy
specifically required shredding the original and writing out a replacement prescription. She
also testified that she had never seen Dr. Moffitt or Dr. Berestnev cross out something on a
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prescription, change it, and then give the prescription to a patient.
When appellant went to the Tyson plant later on July 12, he was given a three day
suspension pursuant to company policy for the purpose of allowing him the opportunity to
clear up the discrepancy with the prescription. After three days had passed, he was
terminated for gross misconduct for falsifying a record. He did not work again until August
16, 2006, when he began employment with another company.
Appellant continued to receive medical treatment from Dr. Berestnev who ordered
physical therapy and an MRI of appellant’s left knee. On August 24, 2006, Dr. Berestnev
released appellant to full duty without restriction; however, on September 24, 2006, Dr.
Moffitt indicated that appellant continued to have pain despite treatment with physical
therapy and medication and referred appellant to Dr. Pleimann, an orthopaedist. Dr.
Pleimann treated appellant for a period of time before referring him to Dr. Tom Coker for
the purpose of determining whether further intervention was warranted.
Dr. Coker
subsequently recommended an arthroscopic procedure of the left knee, which was performed
on February 27, 2007. Appellant reserved for consideration any issues with regard to
compensation benefits beginning with the date of his surgery.
Tyson accepted appellant’s injury as compensable and paid some compensation
benefits including medical treatment. In addition, Tyson began paying temporary total
disability benefits at some point around the time of his surgery in February 2007. A majority
of the Commission denied benefits beginning from appellant’s date of termination continuing
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through February 27, 2007, adopting the administrative law judge’s reasoning.
In reviewing a decision of the Workers’ Compensation Commission, we view the
evidence and all reasonable inferences in the light most favorable to the Commission’s
findings and affirm if supported by substantial evidence. Sally v. Service Master, ___ Ark.
App. ___, ___ S.W.3d ___ (March 29, 2009). Substantial evidence exists if reasonable minds
could have reached the same conclusion. Id. Matters of credibility are exclusively within the
Commission’s domain. Id. 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. Dorris v. Townsends of Ark., Inc., 93 Ark.
App. 208, 218 S.W.3d 351 (2005).
Sufficient evidence supports the Commission’s determination that appellant altered
the number of refills on the prescription. The nurse’s testimony established the doctor’s
office procedure regarding the changing of a prescription, which required the shredding of
any document that no longer reflected the accurate order and the office personnel’s strict
adherence to that policy. She confirmed that the pharmacy reported the suspected change
directly to the doctor’s office upon receipt of the prescription containing the alteration
increasing the number of available refills. Although appellant denied changing the doctor’s
order, discrepancies in the testimony are for the Commission to resolve. Sally, supra. We
cannot say that fair minds could not have reached the finding that appellant was responsible
for the change in the number of refills.
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Neither can we find error in the Commission’s decision that appellant’s alteration of
the prescription justified Tyson’s termination of appellant’s employment. Arkansas Code
Annotated section 11-9-505 (2002 & Supp. 2007) requires that to receive benefits an
employee must prove the following by a preponderance of the evidence: (1) that he sustained
a compensable injury; (2) that suitable employment which is within his physical and mental
limitations is available with the employer; (3) that the employer has refused to return him to
work; and (4) that the employer’s refusal to return him to work is without reasonable cause.
In the context of a workers’ compensation claim, a termination of employment
amounts to a refusal to return an employee to work unless the employee was terminated for
reasonable cause connected with the work. Roark v. Pocahontas Nursing & Rehab., 95 Ark.
App. 176, 235 S.W.3d 527 (2006). In affirming a denial of unemployment benefits, this
court has found that an employee’s failure to provide doctor’s orders explaining her work
absences justified her termination resulting in the denial of unemployment benefits. Love v.
Director, Ark. Employment Sec. Dep’t, 71 Ark. App. 396, 30 S.W.3d 750 (2000). The court
reasoned that accurate information regarding the employee’s asserted medical excuses was
necessary for the employer to properly plan for labor requirements:
In the case at bar, we conclude that Brentwood had a legitimate interest in information
concerning when and if injured employees were excused from work by their treating
physicians. Certainly such information was needed to properly plan for labor
requirements. The intentional or deliberate failure to furnish such information was a
willful disregard of the employer’s interest and of the standards of behavior that it had
a right to expect of its employees. There was no substantial evidence in this case to
support a finding that the failure to furnish this information was not intentional or
deliberate. The decision of the Board of Review is, therefore, affirmed.
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Love, 71 Ark. App. at 400, 30 S.W.3d at 752-53.
Tyson similarly had a legitimate interest concerning when and if injured employees
were being treated by physicians with the prescription of medication and the length of time
the employee would be under the influence of the medication. Accurate information
regarding the employee’s injury and treatment is necessary to ensure the evaluation of the
employee’s compensable claim, to determine whether the employer has work within the
injured employee’s physical and mental limitations, as well as to ensure the employer’s
compliance with safety on the work-site and its ability to properly plan for labor
requirements.
Appellant argues that the prescription was not a work-production record and that
personal medical treatment is not connected to the type of business that Tyson conducts;
therefore, the prescription could not be considered a work record subject to the policy
regarding falsification of work records. The argument is unpersuasive. Appellant obtained
the prescription as a result of an injury he claimed was compensable pursuant to our workers’
compensation law. Our statutory framework places liability upon an employer for payment
of all reasonable and necessary medical treatment, including medication. The alteration of
the authorized refills falsifies a record that directly impacts the determination of the
employer’s legal obligation to its employee in addition to the employer’s fulfillment of state
law. Therefore, accurate records regarding appellant’s condition were necessary for both
business planning of the day to day operations as well as for meeting statutory requirements.
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Accordingly, we find no error in the Commission’s decision and affirm.
Affirmed.
V AUGHT, C.J., and M ARSHALL, J., agree.
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