Foster v. Gilster Mary Lee Corp.
2011 Ark. App. 735
| Ark. Ct. App. | 2011Background
- Foster sustained a compensable cervical spine injury in 2006 while employed by Gilster Mary Lee Corp.
- Surgery (C5-C6 anterior diskectomy with fusion) in March 2006 followed by recovery and light-duty work with restrictions.
- FCE in 2009 indicated sedentary work capacity with specific lifting and handling limitations.
- Gilster proposed a gelatin-packer job; conflicting testimony on whether Foster could perform it due to repetitive arm use and line speed.
- ALJ awarded 12% impairment and 70% wage-loss; Commission affirmed wage-loss but reduced to 30%; cross-appeal addressed bona fide job offer.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether substantial evidence supports 30% wage-loss award | Foster argues 70% wage-loss was supported by evidence and reduction lacks substantial basis | Gilster contends Commission correctly reduced wage-loss to 30% based on restrictions and evidence | Yes; substantial evidence supports 30% wage-loss. |
| Whether Gilster made a bona fide offer of employment | Foster contends there was no bona fide offer within her restrictions | Gilster argues the gelatin-packer job met restrictions and constitutes a bona fide offer | No bona fide offer; Commission supported finding of no bona fide offer. |
Key Cases Cited
- Dearman v. Deltic Timber Corp., 377 S.W.3d 301 (Ark. App. 2010) (burden of proof and preponderance standard in workers' compensation)
- Stone v. Dollar Gen. Stores, 209 S.W.3d 445 (Ark. App. 2005) (Commission's fact-finding and substantial-evidence standard)
- Neal v. Sparks Reg’l Med. Ctr., 289 S.W.3d 163 (Ark. App. 2008) (credibility and weighing evidence; wage-loss considerations)
- Ester v. Nat’l Home Ctrs., Inc., 981 S.W.2d 91 (Ark. 1998) (non-reliance on objective impairment for wage-loss determination)
- Frances v. Gaylord Container Corp., 20 S.W.3d 280 (Ark. 2000) (standard for determining wage-loss in light of impairment)
- Wal-Mart Stores, Inc. v. Connell, 10 S.W.3d 882 (Ark. 2000) (consideration of post-injury factors in wage-loss)
- Henson v. Gen. Elec., 257 S.W.3d 908 (Ark. App. 2007) (commission may consider non-medical factors in wage-loss)
- Emerson Elec. v. Gaston, 58 S.W.3d 848 (Ark. App. 2001) (medical evidence alone not required for wage-loss determination)
- Oiler v. Champion Parts Rebuilders, Inc., 635 S.W.2d 276 (Ark. App. 1982) (early articulation of wage-loss framework)
- Daniels v. Affiliated Foods Sw., 17 S.W.3d 817 (Ark. App. 2000) (de novo review by the Commission of ALJ findings)
- Crawford v. Pace, 929 S.W.2d 727 (Ark. App. 1996) (scope of appellate review in workers' compensation appeals)